Orleans Parish School Board v. Bush Jurisdictional Statement on Behalf of Appellants

    IN THE

SUPREME COURT OF THE UNITED STATES
no. —  Go, ' M r

ORLEANS PARISH SCHOOL BOARD, ET AL.,
Appellants,

versus

EARL BENJAMIN BUSH, ET AL.,
Appellees.

JIMMIE H. DAVIS, ET AL.,
Appellants,

versus

HARRY K. WILLIAMS, ET AL.,
Appellees.

Appeal from the United States District Court for the 
Eastern District of Louisiana, New Orleans 

Division.

JURISDICTIONAL STATEMENT ON BEHALF OF 
APPELLANTS.

HON. JACK P. F. GREMILLION, 
Attorney General,
State of Louisiana,
Capitol,
Baton Rouge, Louisiana;

HON. JACK P. F. GREMILLION, 
Individually;

HON. A. P. TUGWELL,
Treasurei",
State of Louisiana;

HON. M. E. CULLIGAN,
Assistant Attorney General;

~ Montgomery & Co., "The Brief Specialists” , 4S0 Chartres St., N. O ., La, njg§j§i»



ATTORNEYS CONTINUED.

HON. JOHN E. JACKSON, JR., 
Assistant Attorney General;

HON. WM. P. SCHULER,
Assistant Attorney General;

HON. HENRY J. ROBERTS, JR., 
Assistant Attorney General;

HON. WELDON A. COUSINS, 
Assistant Attorney General;

HON. L. K. CLEMENT,
Assistant Attorney General;

HON. JOHN M. CURRIER,
Assistant Attorney General;

HON. GEORGE S. HESNI,
Assistant Attorney General;

HON. ROBERT S. LINK, JR., 
Assistant Attorney General;

HON. DOROTHY N. WOLBRETTE, 
Assistant Attorney General.



INDEX.

AUTHORITIES CITED.
Cases: Page
Albertson v. Millard, 345 U. S. 242 ...........................  19

Amalgamated Clothing Workers v. Richman, 348
U. S. 511 ...............................................................  19

Re: Ayers, 123 U. S. 443 ............................................  15

Belknop v. Shield, 161 U. S. 10 ...............................  15

Chandler v. Dix, 194 U. S. 590 ..............................  15

Cunningham v. Mason & B. R. Co., 109 U. S. 446 . . 15

Ex parte Young, 209 U. S. 123 ................................ 14

Fitts v. McGhee, 172 U. S. 516 ...............................  15

Georgia R. Co. v. Redwine, 342 U. S. 299 ............... 14

Great Northern Life Insurance Co. v. Read, 322
U. S. 47 .................................................................  15

Hagwood v. Southern, 117 U. S. 5 2 .........................  15,16

Hans v. Louisiana, 134 U. S. 1 ...............................  16

Harrison v. National Association for the Advance­
ment of Colored People, 330 U. S. 1 6 7 ..........  19

Herkness v. Irion, 278 U. S. 9 2 ...............................  4

Hawkins v. Board of Control of Florida, 253 F.
(2d) 753 ...............................................................  24

Homer v. United States, 143 U. S. 570, 576 ..........  25

Louisiana, ex rel. New York Guaranty & I. Co., v.
Steele, 134 U. S. 230 ...........................................  15

Louisiana v. Garfield, 211 U. S. 70 .......................  15



AUTHORITIES CITED—  (Continued)

Cases: Page
Louisiana v. Jumel, 107 U. S. 7 1 1 ...........................  15

Mine Safety Appliance Co. v. Forrestal, 326 U. S.
371 .......................................................................... 14

Minnesota v. Hitchcock, 185 U. S. 373 ..................  15

Minnesota v. United States, 305 U. S. 382 .........  15

Missouri v. Fiske, 290 U. S. 18 ...............................  16

Monaco v. Mississippi, 292 U. S. 3 1 3 .......................  16

Murray v. Wilson Distilling Co., 213 U. S. 151 . . .  . 15

Re: New York, 256 U. S. 490 .................................  15,16

North Carolina v. Temple, 134 U. S. 22 ..............  16

Pennoyer v. McConnaughy, 140 U. S. 1 ..................... 15

Palmetto Fire Insurance Co. v. Conn., 272 U. S.
295 .......................................................................... 4

Silver v. Louisville & Nashville R. R. Co., 213 U. S.
175 .......................................................................... 25

Sterling v. Constantin, 287 U. S. 378, 393, 394 . . . .  25

Tankford v. Platte Iron Works Co., 235 U. S. 461 . . 16

Toucey v. N. Y. Life Ins. Co., 314 U. S. 1 1 8 ..........  19

United States v. United States Fidelity & G. Co.,
309 U. S. 506 ....................................................... 16

Wells v. Roper, 246 U. S. 335 ...................................  15

Worcester County Trust Co. v. Riley, 302 U. S. 292 15

I I



AUTHORITIES CITED— (Continued)
Statutes, etc.: Page
Louisiana Revised Statutes 17:337 (Act 333 of

1960) .........................................................  2,4

Louisiana Revised Statutes 17:348.1, et seq. (Act
495 of 1960) .........................................................  2, 4

Louisiana Revised Statutes 17:347.1, et seq. (Act
496 of 1960) .........................................................  2,4

Louisiana Revised Statutes 17:170 (Act 542 of
1960) ...................................................................... 2 ,4

Louisiana Revised Statutes 17:336 (Act 256 of
1958) .....................................................................  2,4

Louisiana Revised Statutes, 17:341, et seq. (Act
319 of 1956) .........................................................  2, 4

Louisiana Revised Statutes 17:331, et seq. (Act
555 of 1954) .........................................................  2, 4

Louisiana Revised Statutes 17:348.1, et seq. (Act
333 of 1960) ......................................................... 2

29 United States Code 107 ...................................... 22

28 U. S. C. 1331 .......................................................... 3

28 U. S. C. 1343 ..........................................................  3

28 U. S. C. 2281 .......................................................... 3

28 U. S. C. 2284 .......................................................... 3

28 U. S. C. 2201 .......................................................... 3

28 U. S. C. 2202 .......................................................... 3

28 U. S. C. 2283 ..........................................................  3

28 U. S. C. 1253 ...............................................   4

i n



IV

APPENDIX.
Page

A. Judgment and reasons therefor of three-judge
Court in consolidated cases of Bush, et ah, v. 
Orleans Parish School Board, et al., and Wil­
liams, et al., v. Davis, et al...............................  1

B. Louisiana Revised Statutes 17:337 (Act 333 of
1960) .....................................................................  13

C. Louisiana Revised Statutes 17:348.1, et seq.
(Act 495 of 1960) ................................................  15

D. Louisiana Revised Statutes 17:347.1, et seq.
(Act 496 of 1960) ............................................  19

E. Louisiana Revised Statutes 17:170 (Act 542
of 1960) .................................................................  23

F. Louisiana Revised Statutes 17:336 (Act 256 of
1958) .....................................................................  26

G. Louisiana Revised Statutes 17:341, et seq.
(Act 319 of 1956) ............................................  30

H. Louisiana Revised Statutes 17:331, et seq.
(Act 555 of 1954) ............................................  33

I. State of Louisiana’s Motion to Dismiss, filed on
February 1, 1955, in Bush, et al., v. Orleans 
Parish School Board, et al...................................  36

J. State of Louisiana’s Motion for Rehearing,
filed on February 24, 1956, in Bush, et al., v. 
Orleans Parish School Board, et al....................  39

K. Louisiana Constitution of 1921, Article 12,
Section 1, as amended November 4, 1958 . . .  . 41



V

APPENDIX—  (Continued)
Page

L. District Court Integration Decree, dated May
16, 1960, in Bush, et al., v. Orleans Parish 
School Board, et al. ............................................  42

M. State Court’s Judgment and Reasons therefor
in State of Louisiana v. Orleans Parish School 
Board, et al., Civil District Court for the Par­
ish of Orleans, State of Louisiana................... 44

N. Minute Entry, dated August 16, 1960, in Bush,
et al., v. Orleans Parish School Board, et al. 52

O. Executive Order No. 1, dated August 17, 1960 55

P. Minute Entry, dated August 17, 1960, in Bush,
et al., v. Orleans Parish School Board, et al. . . 58

Q. Minute Entry, dated August 30, 1960, in Bush,
et al., v. Orleans Parish School Board, et al. 60

R. Second Minute Entry, dated August 30, 1960,
in Bush v. Orleans Parish School Board, et al. 62

S. Minute Entry, dated August 30, 1960, in Wil­
liams, et al., v. Davis, et al..................................  64



IN THE

SUPREME COURT OF THE UNITED STATES

No.

ORLEANS PARISH SCHOOL BOARD, ET AL.,
Appellants,

versus

EARL BENJAMIN BUSH, ET AL.,
Appellees.

JIMMIE H. DAVIS, ET AL.,
Appellants,

versus

HARRY K. WILLIAMS, ET AL.,
Appellees.

Appeal from the United States District Court for the 
Eastern District of Louisiana, New Orleans 

Division.

JURISDICTIONAL STATEMENT ON BEHALF OF 
APPELLANTS.



2

STATEMENT AS TO JURISDICTION.

Appellants appeal from the judgment of the United 
States District Court for the Eastern District of Lou­
isiana, New Orleans Division, sitting as a three-judge 
Court, entered on the 29th day of August, 1960, declaring 
unconstitutional Louisiana Revised Statutes of 1950, 
17:337 (Act 333 of 1960); 17:348.1, et seq. (Act 495 of 
1960); 17:347.1, et seq. (Act 496 of 1960); 17:170 (Act 
542 of 1960); 17:336 (Act 256 of 1958); 17:341, et seq. 
(Act 319 of 1956); 17:331, et seq. (Act 555 of 1954);

and further enjoining enforcement of said statutes and 
from otherwise interfering with the operation of the 
public schools for the Parish of Orleans by the Orleans 
Parish School Board pursuant to the orders of the Dis­
trict Court;

and further enjoining the Honorable Jack P. F. Gre- 
million, Attorney General of the State of Louisiana, and 
all persons acting in concert with him, or at his direc­
tions, from further prosecuting the action in the Civil 
District Court for the Parish of Orleans, State of Lou­
isiana, entitled State of Louisiana v. Orleans Parish 
School Board, et al, No. 382,646, Division “A,” Docket 5,

and from otherwise interfering in any way with the 
operation of the public schools of the Parish of Orleans 
by the Orleans Parish School Board pursuant to the orders 
of the District Court;

and further enjoining the Honorable A. P. Tugwell, 
Treasurer of the State of Louisiana, and all persons act-



3

ing in concert with him or at his direction from enforcing 
Louisiana Revised Statutes of 1950 17:337, et seq., Act 
333 of 1960 and any other statute or regulation of the 
State of Louisiana which is of similar or like text;

and appellants submit this statement to show that the 
Supreme Court of the United States has jurisdiction of 
the appeal and that a substantial question is presented.

OPINION BELOW.

The opinion of the United States District Court 
for the Eastern District of Louisiana, New Orleans Divi­
sion, is not yet reported, however the judgment of the 
Court and the reasons therefor are attached hereto as 
Appendix “A.”

JURISDICTION.

The Bush suit, Earl Benjamin Bush, et al., v. Or­
leans Parish School Board, et al., was brought under 28 
U. S. C. 1331, 28 U. S. C. 1343, 28 U. S. C. 2281, 28 
U. S. C. 2284, 28 U. S. C. 2201 and 28 U. S. C. 2202.

The Williams suit, Harry K. Williams, et al., v. 
Jimmie H. Davis, et al., was brought under 28 U. S. C. 
1331, 28 U. S. C. 1343 (3), 28 U. S. C. 2281, 28 U. S. C. 
2284 and 28 U. S. C. 2283.

The judgments and reasons therefor were entered 
in both cases on August 29, 1960, and notices of appeal 
were filed in both cases on August 30, 1960.



4

The jurisdiction of the Supreme Court to review 
this decision by direct appeal is conferred by 28 U, S. C. 
1253, as both cases were consolidated and heard by a 
three-judge Court pursuant to 28 U. S. C. 2281, et seq.

The following decisions sustain the jurisdiction of 
the Supreme Court to review the judgment on direct 
appeal in these cases:

Herkness v. Irion, 278 U. S. 92;
Palmetto Fire Ins. Co. v. Conn., 272 U. S. 295.

STATUTES INVOLVED.
The following statutes of the State of Louisiana 

were held to be unconstitutional and invalid:

Louisiana Revised Statutes of 1950: 17:337, Ap­
pendix B (Act 333 of 1960) ; 17:348.1, et seq., Appendix 
C (Act 495 of 1960); 17:347.1, et seq., Appendix D (Act 
496 of 1960); 17:170, Appendix E (Act 542 of 1960); 
17:336, Appendix F (Act 256 of 1958); 17:341, et seq., 
Appendix G (Act 319 of 1956); 17:331, et seq., Appendix 
H (Act 555 of 1954).

QUESTIONS PRESENTED.
In declaring particular Louisiana Statutes, herein­

above cited, unconstitutional and invalid and in issuing 
a temporary injunction restraining defendants from en­
forcing the provisions thereof and from further prosecut­
ing in the name of the State of Louisiana the action in 
the Civil District Court for the Parish of Orleans, State



5

of Louisiana, entitled State of Louisiana v. Orleans Par­
ish School Board, et al., No. 382,646, Division “A,”  Docket 
5, and from otherwise interfering in any way with the 
operation of the public schools of the Parish of Orleans 
by the Orleans Parish School board pursuant to the orders 
of the District Court, the following questions are pre­
sented by these appeals:

1. Does the District Court have jurisdiction over 
the subject matters?

2. Is this a suit against the State of Louisiana?

3. Is this in fact not a suit against the State of 
Louisiana?

4. Is not the State of Louisiana an indispensable
party?

5. Is not the State of Louisiana the “ real party 
at interest?”

6. Did the District Court lose jurisdiction over 
its May 16, 1960, judgment after an appeal thereof had 
been perfected to the Fifth Circuit Court of Appeals?

7. Did the District Court have jurisdiction to con­
sider the constitutionality of Act 496 of 1960 of the Lou­
isiana Legislature while it was under consideration and 
interpretation by a Louisiana Court and, if so, should 
it not have abstained from any consideration thereof?

8. Are not the members of and the Louisiana Leg­
islature indispensable parties hereto?



6

9. Is JACK P. F. GREMILLION, Attorney Gen­
eral for the State of Louisiana, a proper party defend­
ant herein?

10. In making the Attorney General of the State 
of Louisiana a party defendant and enjoining him as such, 
has not the State of Louisiana and its citizens been denied 
and deprived of their rights of due process of law?

11. Are plaintiffs in fact parties at interest or 
do they have capacity to bring this suit?

12. Is not J. Skelly Wright, Judge, an indispensa­
ble party to this proceeding?

13. Were not defendants entitled to a more defi­
nite statement by having plaintiffs amend their supple­
mental complaint?

14. Are not Acts 333, 495, 496 and 542 of 1960, 
Act 256 of 1958, Act 319 of 1956 and Act 555 of 1954 of 
the Louisiana Legislature constitutional and valid?

15. Is not the May 16, 1960, order of the District 
Court impractical and impossible in itself to execute?

16. Has not the supplemental complaint in Bush 
failed to state a claim upon which relief can be granted 
because of its failure to allege the unconstitutionality of 
Act 496 of 1960?

17. Were not defendants entitled to a continuance 
at the time of hearing for the following reasons:

(a) That all the parties had not been lawfully 
brought before the Court?



7

(b) That the key portion of this litigation was 
pending before a State Court?

(c) That there was insufficient time to adequately 
prepare defenses?

(d) That there was insufficient service of process 
upon Attorney General JACK P. P. GRE- 
MILLION?

(e) That at the time of the hearing the Court al­
lowed the filing of affidavits in evidence, all 
in contravention of the Federal Rules of Civil 
Procedure, despite timely objection and with­
out adequate opportunity for defendants to 
prepare and offer counter-affidavits?

(f) That despite the Court’s order, that oral testi­
mony would not be heard at the hearing, the 
Court allowed oral testimony despite timely 
objection by defendants?

(g) That after the Court allowed oral testimony, 
it denied to defendants their right of cross- 
examination all in violation of defendants’ 
right to due process of law?

18. Did not the actions of the District Court dur­
ing the hearing on these causes deny to defendants their 
rights to due process of law?

19. Is not the effect of the orders of the District 
Court to require affirmative action on the part of the 
State of Louisiana, one of its political subdivisions, or its 
officials?



8

STATEMENT OF THE BUSH CASE.
This suit was originally entitled Oliver Bush, Jr., 

et al., v. Orleans Parish School Board, et al., and was 
filed in the United States District Court, Eastern District 
of Louisiana, New Orleans Division, on September 5, 
1952. First amended complaint changing the caption of 
this cause to Earl Benjamin Bush, et al., v. Orleans Par­
ish School Board, et al., was filed in the District Court 
on August 18, 1955. Subsequent to the filing of the first 
amended complaint certain proceedings transpired which 
are reported as follows: 138 F. Supp. 336, February 15, 
1956; 138 F. Supp. 337, February 15, 1956; 351 U. S. 948, 
May 28, 1956; 242 F. (2d) 156, March 1, 1957; 252 Fed. 
(2d) 253, February 13, 1958; 354 U. S. 921, June 17, 
1957; 356 U. S. 969, May 26, 1958; 163 F. Supp. 701, 
July 1, 1958; 268 F. (2d) 78, June 9, 1959.

On November 1, 1955, the Attorney General of the 
State of Louisiana filed a motion to dismiss and plea to 
jurisdiction on behalf of the State of Louisiana. (Appen­
dix I.) After this motion was denied on February 24, 
1956, motion for a rehearing on behalf of the State of 
Louisiana (Appendix J) was filed, which motion was de­
nied. The District Court specifically held that this suit 
was not against the State of Louisiana, 138 F. Supp. 337 
at page 340, and this holding was affirmed on appeal, 
242 F. (2d) 156 at page 161.

The Supreme Court on June 17, 1957, 354 U. S. 
921, made final the judgment of the District Court, 138 
F. Supp. 337, as affirmed on appeal, 242 F. (2d) 156,



9

which judgment declared void and of no effect the sole 
and only State constitutional authority given to the State 
Legislature to provide for any public education through 
a public school system.

The people of the State of Louisiana on November 
4, 1958, adopted a new constitutional amendment (Appen­
dix K) which restored Section 1 of Article 12 of the Lou­
isiana Constitution of 1921 so as to be in accord with 
the constitutional principles declared by the Supreme 
Court.

(Until the Regular Session of the Louisiana Legis­
lature of 1960, the people o f Louisiana had no opportunity 
to adopt any law pursuant to the constitutional authority 
adopted on November 4, 1958.)

On May 16, 1960, the District Court entered an 
order (Appendix L) providing a mandatory plan for the 
integration of the public schools in the Parish of Orleans, 
State of Louisiana. This order was appealed on May 30, 
1960, to the United States Fifth Circuit Court of Appeals, 
which appeal is presently pending.

Act 496 of 1960 (La. R. S. 17:347.1, et seq.) (Ap­
pendix D) was adopted at the 1960 Regular Session and 
became law on July 9, 1960.

On July 25, 1960, the State of Louisiana filed suit 
in the Civil District Court for the Parish of Orleans, 
State of Louisiana, entitled State of Louisiana v. Orleans



10

Parish School Board, et al., No. 382,646, Division “A ,” 
Docket No. 5, seeking to enjoin defendants from taking 
any action in derogation of Act 496 of 1960. Judgment 
was granted in favor of the State of Louisiana and rea­
sons were assigned (Appendix M) on July 29, 1960.

On August 16, 1960, plaintiffs Bush, et al., filed 
three new motions in the District Court: To add the Gov­
ernor and Attorney General of Louisiana as new parties 
defendant, to file a supplemental complaint and to enjoin 
the new parties defendant.

The supplemental complaint prayed that blanket 
injunctions issue against the Governor and Attorney Gen­
eral of Louisiana enjoining them from taking any actions, 
issuing any orders, from taking any further legal actions 
to prevent compliance with the District Court’s May 16, 
1960, order. (Appendix L.) The supplemental complaint 
did not challenge the constitutionality of any law or statute 
of the State of Louisiana.

On August 16, 1960, the District Court entered 
minutes (Appendix N) reflecting ex parte orders conven­
ing a three-judge Court, allowing the filing of supple­
mental complaint and adding as new parties defendant, 
the Governor and Attorney General of Louisiana, hearing- 
on issuance of the injunction was fixed for August 25, 
1960. This minute entry further reflected order of the 
Court that hearing be had on a written record composed 
of affidavits and other documents and that no oral testi-



11

rnony would be taken at the hearing and that a copy of 
the original cosnplaint be served on the Governor and 
Attorney General.

On August 17, 1960, the Governor of Louisiana 
issued Executive Order No. 1 (Appendix 0 ) .

On August 17, 1960, the District Court entered 
minutes (Appendix P) reflecting no notice to new parties 
defendant, Governor and Attorney General of Louisiana 
and order refixing the hearing on issuance of the injunc­
tion for August 26, 1960, and as well an order consoli­
dating the Bush case with the matter entitled Harry K. 
Williams, et al., v. Jimmie H. Davis, ei al.

On August 26, 1960, at 10:00 A. M. hearing was 
commenced in this matter and concluded the same day. 
Judgment and reasons therefor (Appendix A) were an­
nounced on August 27, 1960, at noon.

Judgment and reasons therefor (Appendix A) were 
entered on August 29, 1960.

On August 30, 1960, the District Court entered 
minutes reflecting amendment of the judgment. (Appen­
dix Q.)

On August 30, 1960, the District Court a second 
time entered minutes (Appendix R) reflecting an ex 
parte order postponing the effective date of the May 16, 
1960 order (Appendix L) to November 14, 1960.

Notice of appeal was filed on August 30, 1960.



12

Pursuant to permission of the Supreme Court an 
application for stay order pending appeal was filed in 
the Supreme Court on September 1, 1980, and motion 
to stay judgment was denied on the same date.

STATEMENT OF WILLIAMS CASE.
This suit entitled Harry K. Williams, et al., v, 

Jimmie H. Davis, et al., was filed in the United States 
District Court, Eastern District of Louisiana, New Or­
leans Division, on August 17, 1960. This suit’s major 
object, as quoted from the first paragraph of the com­
plaint, is “ to annul, modify or suspend the order issued 
on May 16, 1960 (Appendix L) by Honorable J. Shelly 
Wright, Judge of the United States District Court for 
the Eastern District of Louisiana, in the proceedings en­
titled Bush, et at., v. Orleans Parish School Board, Civil 
Action No. 3630.

Plaintiffs in the alternative and only in the alter­
native sought to (1) restrain execution of judgment (Ap­
pendix M) signed by State Judge Carriere in favor of 
the State of Louisiana by making Judge Carriere a 
party defendant; (2) restrain execution of some 18 stat­
utes of the State of Louisiana as well as Article XII, 
Section 1 of the Louisiana Constitution of 1921 (Appendix 
K ). The related statutes attacked are set forth in Ap­
pendices B-H. (3) Restrain the Governor, Attorney Gen­
eral and Treasurer of the State o f Louisiana and the 
Orleans Parish School Board from enforcing the State 
Court Judgment (Appendix M) and any of the statutes 
attacked as well as the constitutional provision (Ap­
pendix K ) .



13

On August 17, 1960, the District Court entered 
minutes (Appendix S) reflecting the convening of a 
three-judge Court for a hearing fixed for August 26, 
1960, and an order that the motion for temporary injunc­
tion be had on a written record of affidavits and other 
documents and further, an order that the Governor and 
Attorney General of Louisiana be served.

On August 26, 1960, at 10:00 A. M. hearing was 
commenced in this matter and concluded the same day. 
Judgment and reasons therefor (Appendix A) were an­
nounced on August 27, 1960, at noon.

Judgment and reasons therefor (Appendix A) were 
entered on August 29, 1960.

On August 30, 1960, the District Court entered 
minutes reflecting amendment of its judgment (Appen­
dix Q).

Notice of Appeal was filed on August 30, 1960.

Pursuant to permission of the Supreme Court, an 
application for stay order pending appeal was filed in 
the Supreme Court on September 1, 1960, and motion 
to stay was denied on the same date.

THE QUESTIONS PRESENTED ARE SUBSTANTIAL.

A. The Constitutional Question.

On May 16, 1960, the District Court issued order 
for the Orleans Parish School Board to integrate the pub­
lic school system under its control. (See Appendix L.)



14

On August 30, 1960, the three-judge District Court 
issued the following order in both cases here on appeal:

“ It is further ordered that the Orleans Parish 
School Board comply with the order of this Court, 
sitting with one judge, dated May 16, 1960, as 
amended, in Bush v. Orleans Parish School Board, 
Civil Action No. 3630, requiring desegregation be­
ginning with the first grade.” (See Appendix Q.)

This order was not responsive to any plan orig­
inated or submitted by any of defendants, but one which 
originated with the District Court itself.

Such order commands the affirmative actions of 
the State Board and State officials.

This Court has held that a suit to restrain uncon­
stitutional action by an individual who is a State officer 
is not a suit against the State. Ex parte Young, 209
U. S. 123, and when a judgment merely commands the 
cessation of allegedly unconstitutional conduct and does 
not command affirmative action by state officials, such 
judgment is not against the State. Georgia Railroad & 
Banking Co. v. Redivine, 342 U. S. 299.

This Court has likewise held that the sovereign 
immunity of a state extends to suits against its officers 
and officials, where the sovereign though not named as 
such, is, nevertheless, the only real party against which 
alone in fact the relief is asked and against which judg­
ment or decree effectively operates. Mine Safety Appli-



15

ance Co. v. Forrestal, 326 U. S. 371; Re: Ayers, 123 U. S. 
443; Belknap v. Schild, 161 U. S. 10; Minnesota v. Hitch­
cock, 185 U. S. 373, and that if the officers who are sued 
in their individual or personal capacity have no individual 
or personal interest in the controversy, and that if the 
suit seeks to control their actions and exercise of func­
tions as officers of the sovereign, the immunity from suit 
is applicable. Belhiap v. Schild, 161 U. S. 10; Worcester 
County Trust Co. v. Riley, 302 U. S. 292, Hagood v. South­
ern, 117 U. S. 52; Cunningham v. Mason & B. R. Co., 109 
U. S. 446, and that under the circumstances, the state is 
an indispensable party. Minnesota v. United States, 305 
U. S. 382; Louisiana v. Jumel, 107 U. S. 711; Cunning­
ham v. Macon & B. R. Co., 109 U. S. 446; Hagood v. 
Southern, 117 U. S. 52; Re: Ayers, 123 U. S. 443; Pen- 
noyer v. McComiaughy, 140 U. S. 1, Wells v. Roper, 246 
U. S. 335; Louisiana, ex rel. Neiv York Guaranty & I. Co., 
v. Steele, 134 U. S. 230, and that the sovereign’s interests 
and liability cannot be tried “ behind its back.”  Louisi­
ana v. Garfield, 211 U. S. 70, and that a state could not 
be controlled by courts in the performance of its political 
duties through suits against its officials. Great Northern 
Life Insurance Co. v. Read, 322 U. S. 47; Chandler v. Dix, 
194 U. S. 590; Fitts v. McGhee, 172 U. S. 516; Murray v. 
Wilson Distilling Co., 213 U. S. 151; Tankford v. Platte 
Iron Works Co., 235 U. S. 461; Re: New York, 256 U. S. 
490; Worcester County Tr. Co. v. Riley, 302 U. S. 292, and 
that efforts to force, through suits against officials, per­
formance of acts by a state collide directly with the neces-



16

sity that a sovereign must be free from judicial compul­
sion in the carrying out of its policies. Monaco v. Missis­
sippi, 292 U. S. 313; Louisiana v. Jumel, 107 U. S. 711, 
and that a state’s freedom from litigation is a constitu­
tional right through the Eleventh Amendment. The in­
herent nature of sovereignty prevents actions against a 
state by its own citizens without its consent. Hans v. Lou­
isiana, 134 U. S. 1; North Carolina v. Temple, 134 U. S. 
22, and that the Eleventh Amendment provides that: “ The 
Judicial power of the United States shall not be construed 
to extend to any suit in law or equity, commenced or 
prosecuted against one of the United States by citizens 
of another State or by citizens or subjects of any Foreign 
State.”  This express constitutional limitation denies to 
the Federal Courts authority to entertain a suit by private 
parties against a state without its consent. Hans v. Lou­
isiana, 134 U. S. 1; Re: New York, 256 U. S. 490; Mis­
souri v. Fiske, 290 U. S. 18; United States v. United States 
Fidelity & G. Co., 309 U. S. 506; North Carolina v. Tem­
ple, 134 U. S. 22; Hagood v. Southern, 117 U. S. 52.

Neither the United States Constitution nor the 
Louisiana Constitution, 1921, as amended, imposes upon 
the state of Louisiana the duty to provide a public educa­
tion and, therefore, it is a political matter as to whether 
or not a public education will be provided and this matter 
is not one subject to the jurisdiction of any court.

These judgments compel State action. They com­
mand action by state officials which action is purely 
political in nature and affirmative in fact and substance. 
The action commanded has been solely and purely formu­
lated by the Court. The decrees direct the school officials



17

and other State officials as to how they shall perform 
their duties or exercise the discretion vested in them by 
law. The Court, having itself formulated and estab­
lished by decrees a system of integration now demands 
specific performance of this system.

The judgments appealed from are in truth and 
fact against the State of Louisiana and the Court is with­
out jurisdiction to entertain these suits. The Court has 
legislated, which legislation is in contravention of the 
United States Constitution.

B. The Court Below Denied Defendants Due Proc­
ess of Law.

On May 16, I960, the District Court, in the Bush 
case, issued its integration order. (Appendix L.) As 
the record will disclose and substantiate, no evidence was 
considered by the Court before this decree was entered, 
no hearings to consider such evidence were scheduled or 
provided, no findings of fact or conclusions of law 
were made by the Court in violation of the federal rules 
of procedure. There was absolutely nothing before the 
Court on which it could base an order or decree. There 
was no proof whatsoever before the Court that any plain­
tiff in this litigation had been denied any legal right.

The Governor and Attorney General of Louisiana 
were joined by ex parte order (Appendix N) as parties 
defendant in the Bush case on August 16, I960, after it 
had been in progress approximately eight years and were 
made amenable to judgments and decrees rendered in liti-



18

gation they were never parties to, or given any oppor­
tunity in which to participate, although participation was 
attempted some five years previously. (Appendices I and 
J.) This is in contravention of law and the very spirit of 
all judicial proceedings.

The Court below sought to cure this injustice by 
ordering that a copy of the original complaint be served 
on the Governor and Attorney General. (Appendix N.) 
This was not done and has never been done.

The Court in this manner sought extended enforce­
ment of its May 16, 1960, decree (Appendix L) which 
originally had no basis in law or in fact.

At the time the Court joined the Governor and 
Attorney General as parties defendant it had no jurisdic­
tion over the case inasmuch as the matter was on appeal 
to the United States Fifth Circuit Court of Appeals and 
as the record will disclose and substantiate, the District 
Court at no time during the entire course of the Bush 
litigation retained the cause for further orders necessary 
in any respect. The issuance of any decree with retention 
of the case may have given the Court the means of effec­
tually disposing of the case in a legal manner, however 
its failure to do so is fatal.

The Governor as well as the Attorney General, 
who were joined individually in Bush, as individuals have 
no individual or personal interest in the controversy



19

and the suit seeks to control their actions and exercise 
their functions as officers of the sovereign state.

The Attorney General under the State Constitution 
and laws is the legal officer of the state, commanded by 
law to represent the state and its people. The State 
was given judgment (Appendix M) upholding the valid­
ity of Act 496 of 1960 (Appendix D). This judgment 
is a property right of the State and its people. The 
denial to the State of Louisiana of its counsel is not due 
process of law.

The Williams case placed before the District Court 
the same issue which had already been placed before the 
State Court, i. e., validity of Act 496 of 1960. The Dis­
trict Court was without jurisdiction to try this issue 
under the rule announced in Amalgamated Clothing Work­
ers v. Richman, 348 U. S. 511; Toucey v. New York Life 
Ins. Co., 314 U. S. 118; Harrison v. National Asm. for 
the Advancement of Colored People, 360 U. S. 167; Albert­
son v. Millard, 345 U. S. 242. Defendants were entitled 
to definitive judgment before the State Court and denial 
thereof was not due process of law.

In Williams the State Court Judge was joined as a 
party defendant and such action denies to the people of 
Louisiana and the State free access to the courts. This 
constitutes denial of due process.

To hear the Bush case, which was consolidated with 
Williams (Appendix P ), despite the errors in Bush here­
tofore cited, the judge who actually formulated and issued 
the May 16, 1960, decree was assigned as a member of the



20

three-judge court and passed upon the validity of his own 
judgment. This is clearly error and denial of due process.

The Bush supplemental complaint v?as filed on Au­
gust 16, 1960, however in one day service was not effected 
upon the Governor or Attorney General and the original 
hearing date set in Bush for August 23, 1960, was con­
tinued to August 26, 1960 (Appendix P) as five-day 
notice pursuant to 28 U. S. C. 2284 had not been effected. 
In the August 17, 1960 order (Appendix P) the Court 
reveals its interest which is normally attributed only to 
suits in which the United States is a party to wit: “ It is 
further ordered that the United States Marshal continue 
his efforts to serve the defendants herein, using any num­
ber of deputies which the service requires.”  Defendants 
referred to were the Governor and Attorney General and 
this order was entered less than twenty-four hours after 
pleadings had been filed and service therewith sought.

As the record will reflect and substantiate, the 
Attorney General sought to inspect returns of service in 
Bush and Williams diligently and continually prior to the 
hearing date and although returns are normally in the 
record such were not made available to defendants and 
continued in the Court’s actual possession up until the 
hearing commenced on August 26, 1960. This was a 
denial of due process.

FROM THE ORDERS OF THE DISTRICT 
COURT (APPENDICES N AND S) IT IS CLEAR 
THAT THE HEARING OF THE MOTION FOR TEM­
PORARY INJUNCTIONS WERE TO BE HAD ON A 
WRITTEN RECORD COMPOSED OF AFFIDAVITS



21

AND OTHER DOCUMENTS. NO ORAL TESTIMONY 
WAS TO BE HEARD.

Despite these orders of Court at the time of the 
hearing oral testimony was allowed despite timely objec­
tion and further, the Court prevented cross-examination 
by defendants.

In both Bush and Williams prior to the hearing no 
affidavits or other documents were filed in support of 
motions for preliminary injunctions or served upon de­
fendants.

It is basic that when a hearing is upon written 
affidavits and documents that opportunity be given to file 
counter-affidavits and counter-documents. The Federal 
rules provide for this traditional fair play and specifically 
in the issuance of a preliminary injunction. Rule 6 (D) 
and Rule 65 (A) Federal Rules of Civil Procedure.

No fair opportunity was given defendants to fully 
present their case prior to the issuance of the preliminary 
injunction.

The issuance of a preliminary injunction under 
such circumstances is contrary not only to the Rules of 
Civil Procedure, but also to the spirit which imbues on 
judicial tribunals prohibiting decision without hearing.

Rule 65 (A) provides that no preliminary injunc­
tion shall be issued without notice to the adverse party. 
Notice implies an opportunity to be heard. Hearing re­
quires trial of an issue or issues of fact. Trial of an 
issue of fact necessitates opportunity to present evidence



22

and not by only one side to the controversy. It should 
be noted that Rule 65 (B) provides that a motion for 
a preliminary injunction “ shall be set down for hear­
ing . .

It is also pertinent to observe that Rule 65 finds 
its source in the Clayton Act, 29 U. S. C. 107, and it was 
never supposed that an injunction issue without giving 
the party against whom the injunction was sought an 
opportunity to present evidence on his behalf. The theory 
of Rule 65 is that the trial judge may issue a temporary 
injunction to preserve the status quo; that the order may 
endure for twenty days, but no longer without consent 
of the party against whom it issued; that within the 
twenty-day period, which affords the opportunity for 
hearing such facts must be presented to the Court as-will 
justify the Court, in the exercise of its sound legal discre­
tion, to issue a preliminary injunction.

With certainty, a preliminary injunction may not 
issue without giving the party sought to be enjoined an 
opportunity to present evidence on his behalf, it is fur­
nished by Rule 52 (A) which requires the Court in all 
actions “ tried upon the facts without a jury”  to state sep­
arately its conclusions of law and “ in granting or refusing 
interlocutory injunctions”  similarly set forth the findings 
of fact and conclusions of law which constitute the grounds 
of its action. The conclusion is inescapable that since a 
District Court is required by the rule to make a finding 
of fact, the findings must be based upon something more 
than a one-sided presentation of the evidence. Finding- 
facts requires the exercise of an impartial tribunal of its 
functions of weighing and appraising evidence offered,



23

not by one party to the controversy alone, but by both.
It is appropriate to point out that after evidence has been 
presented by both sides an opportunity must also be af­
forded to both sides to argue the effect of that evidence 
to the Court. Morgan v. United States, 304 U. S. 1. De­
fendants were not given the opportunity to present 
counter-evidence on their behalf and necessarily were pre­
cluded argument thereon.

No affidavits or documents were filed by plain­
tiffs before the hearing as required by Rule 6-D and 
Rule 65. (Nonetheless the District Court allowed affi­
davits and documents to be filed by plaintiffs at the time 
of the hearing over defendants’ objections.) Defendants 
were not given copies of these affidavits and documents 
and have never received any copies. No opportunity was 
afforded defendants to prepare and file counter-affi­
davits. Although the Court said opportunity would be 
afforded, it handed down its decision less than thirty 
hours after the hearing commenced. As defendants were 
not afforded opportunity to file any counter-affidavits, 
they had nothing upon which to argue and therefore were 
not given a fair hearing at law.

The Court deprived itself of hearing all of the evi­
dence upon which under the law it had a mandatory duty 
to state the findings of fact which constituted the grounds 
for its action.

The facts therefore were one sided and any conclu­
sion of necessity would be controlled accordingly.



24

The law and procedure stated above is fully rec­
ognized by the circuit within which the District Court is 
situated. Hawkins v. Board of Control of Florida, 253 
F. (2d) 753.

The District Court by the orders limited evidence 
to affidavits and documents and then violated its own 
mandate. It did likewise in allowing oral testimony. And 
then denied defendants their right to cross-examination. 
These actions deprived defendants of their rights to due 
process of law.

A thorough and close reading of the Court’s judg­
ment and reasons (Appendix A) clearly show that the 
Court failed to make the finding of fact which constituted 
the grounds for these actions, as made mandatory by Rule 
52 (A).  No where did the Court find that plaintiffs 
would suffer irreparable injuries unless the injunction 
issue. It could not legally find this fact inasmuch as such 
fact was not legally before it.

The hearing afforded defendants did not constitute 
a legal hearing providing all of the safeguards and rights 
defendants were entitled to and further compounded the 
procedure, through which the May 16, 1960, decree was 
issued, which procedure failed to embrace the Rules of 
Civil Procedure and the spirit of fair play which must im­
bue all courts.

Proper pleadings were filed in these cases which 
clearly presented to the Court many defendants’ conten­
tions that they were not receiving due process. These 
were solely and summarily treated by the last sentences 
of the reasons assigned (Appendix A) : “ Ruling was re-



25

served on various motions made by the defendants during 
the course of the hearing. This opinion disposes of those 
motions.”

C. Other Errors of the Court Below.

The defendants have challenged many other rulings 
of the District Court, each of which would be ground for 
reversal. These relate (1) the improper admission of evi­
dence in support of the plaintiffs’ cases; (2) denial of 
defendants’ right to cross-examination; (3) the scope of 
the injunction that issued; (4) denial of defendants’ right 
to present fully their cases; (5) lack of competent and 
admissible evidence to support the judgment; (6) failure 
to join indispensable parties; (7) failure to drop improper 
parties; (8) abuse of discretion in granting the injunction 
that issued.

Many of these errors are serious and important. 
Inasmuch, however, as the three major questions already 
treated are sufficient to dispose of these cases, and are 
clearly substantial, it does not seem necessary to discuss 
these additional points in this statement. Since these 
cases are ones required to be heard by a District Court 
of three judges, the Supreme Court has jurisdiction of 
these cases on appeal, and that jurisdiction extends to 
every question involved in these cases. Sterling v. Con­
stantin, 287 U. S. 378, 393, 394; Siler v. Louisville & 
Nashville R. R. Co., 213 U. S. 175, and Horner v. United 
States, 143 U. S. 570, 576.



26

CONCLUSION.
Wherefore, it is respectfully submitted that this 

Court has jurisdiction of this appeal and it is respectfully 
suggested that this Court may find these cases appro­
priate ones for reversal and dismissal of the complaints.

Respectfully submitted,

HON. JACK P. F. GREMILLION,
Attorney General,
State of Louisiana,
Capitol,
Baton Rouge, Louisiana;

HON. JACK P. F. GREMILLION, 
Individually;

HON. A. P. TUGWELL,
Treasurer,
State of Louisiana;

HON. M. E. CULLIGAN,
Assistant Attorney General;

HON. WELDON A. COUSINS, 
Assistant Attorney General;

HON. L. K. CLEMENT,
Assistant Attorney General;

HON. JOHN M. CURRIER,
Assistant Attorney General;

HON. GEORGE S. HESNI,
Assistant Attorney General;

HON. ROBERT S. LINK, JR., 
Assistant Attorney General;



27

HON. DOROTHY N. WOLBRETTE, 
Assistant Attorney General.

HON. JOHN E. JACKSON, JR.,
Assistant Attorney General;

HON. WM. P. SCHULER,
Assistant Attorney General;

HON. HENRY J. ROBERTS, JR., 
Assistant Attorney General;

PROOF OF SERVICE.
I, JACK P. F. GREMILLION, Attorney General 

for the State of Louisiana and attorney for Appellants 
herein, and a member of the Bar of the Supreme Court
of the United States, hereby certify that on the ______
day of December, 1960, I served copies of the foregoing 
jurisdictional statement on the several parties hereto as 
follows:

On Earl Benjamin Bush, et al., Plaintiffs, by mail­
ing copies in duly addressed envelopes, with first-class 
postage prepaid, to A. P. Tureaud, Esq., and A. M. 
Trudeau, Esq., 1821 Orleans Avenue, New Orleans 16, 
Louisiana; with air-mail postage prepaid, to Thurgood 
Marshall, Esq., and Constance Baker Motley, Esq., 10 
Columbus Circle, New York, New York, Attorneys for 
Plaintiffs;

On Harry K. Williams, Plaintiffs, et ah, by mailing 
a copy in duly addressed envelope; with first-class postage 
prepaid, to Charles E. Richards, Esq., 312 Civic Center



28

Building, New Orleans, Louisiana, Attorney for Plain­
tiffs, and

To Lloyd J. Rittiner, Louis G. Riecke, Matthew 
R. Sutherland, and Theodore H. Sheppard, Jr., members 
of the Orleans Parish School Board, the Orleans Parish 
School Board and James F. Redmond, Parish Superin­
tendent of Schools for the Orleans Parish School Board, 
defendants, by mailing a copy in a duly addressed enve­
lope with first-class postage to Samuel I. Rosenberg, their 
attorney, National Bank of Commerce Building, New 
Orleans 12, Louisiana, and on Emile Wagner, member of 
the Orleans Parish School Board, by mailing a copy in a 
duly addressed envelope with first-class postage to him, 
c /o  Hibernia Homestead Association, 300 Carondelet 
Street, New Orleans, Louisiana.

JACK P. F. GREMILLION, 
MEMBER OF THE BAR OF THE 
SUPREME COURT OF THE UNITED 

STATES,
2201 State Capitol Building,

Baton Rouge, Louisiana.



APPENDICES “A” THROUGH “S”



1

APPENDIX “ A ”

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION

NO. 3630 
Civil Action

EARL BENJAMIN BUSH, et al
Plaintiffs

versus

ORLEANS PARISH SCHOOL BOARD, et al
Defendants

NO. 10329 
Civil Action

HARRY K. WILLIAMS, et al
Plaintiffs

versus

JIMMIE H. DAVIS, Governor of the 
State of Louisiana, et al

Defendants

TEMPORARY INJUNCTION.
These cases came on for hearing, on motion of 

plaintiffs for temporary injunction. It being the opinion



2

of this Court that all Louisiana statutes which would di­
rectly or indirectly require segregation of the races in 
the public schools for the Parish of Orleans, or authorize 
the closure of such schools, or deny them public funds, 
because they are desegregated, are unconstitutional, in 
particular Acts 333, 495, 496 and 542 of 1960, Act 256 
of 1958, Act 319 of 1956, and Act 555 of 1954;

IT IS ORDERED that the Honorable Jimmie H. 
Davis, Governor of the State of Louisiana, and all those 
persons acting in concert with him, or at his direction, 
including the defendant, James F. Redmond, be, and they 
are hereby, restrained and enjoined from enforcing the 
provisions of Acts 333, 495, 496, and 542 of 1960, Act 
256 of 1958, Act 319 of 1956, Act 555 of 1954 of the Leg­
islature of Louisiana, and from otherwise interfering with 
the operation of the public schools for the Parish of Or­
leans by the Orleans Parish School Board pursuant to 
the orders of this Court.

IT IS FURTHER ORDERED that control and 
operation of the public schools of the Parish of Orleans, 
having been illegally removed from the Orleans Parish 
School Board, be, and they are hereby, returned to the 
Orleans Parish School Board.

IT IS FURTHER ORDERED that the Orleans 
Parish School Board comply with the order of this Court, 
sitting with one judge, dated May 16, 1960, in Bush v. 
Orleans Parish School Board, Civil Action No. 3630, re­
quiring desegregation beginning with the first grade,

IT IS FURTHER ORDERED that the Honorable 
Oliver P. Carriere, Judge of the Civil District Court for



3

the Parish of Orleans, State of Louisiana, be, and he is 
hereby, restrained and enjoined from enforcing the injunc­
tion issued by him on July 29, 1960, in the cause entitled 
State of Louisiana v. Orleans Parish School Board, et al, 
No. 382-646, Division A, Docket 5.

IT IS FURTHER ORDERED that the Honorable 
Jack P. F. Gremillion, Attorney General of the State of 
Louisiana, and all persons acting in concert with him, or 
at his direction, be, and they are hereby, restrained and 
enjoined from further prosecuting the action in the Civil 
District Court for the Parish of Orleans, State of Louisi* 
ana, entitled State of Louisiana v. Orleans Parish School 
Board, et al, No. 382-646, Division A, Docket 5, and from 
otherwise interfering in any way with the operation of the 
public schools of the Parish of Orleans by the Orleans 
Parish School Board, pursuant to the orders of this Court.

IT IS FURTHER ORDERED that the Honorable 
A. P. Tugwell, Treasurer of the State of Louisiana, and 
all persons acting in concert with him, or at his direction, 
be and they are hereby, restrained and enjoined from 
enforcing Act 333 of 1960, and any other statute or regu­
lation of the State of Louisiana which would deny school 
books, school supplies, school lunch and school funds of 
any kind to any public school in the State of Louisiana 
because such school has been desegregated.

IT IS FURTHER ORDERED that a bond be filed 
by plaintiffs herein in the sum of One Thousand Dollars 
($1,000.00) for the payment of such costs and damages as 
may be incurred or suffered by any party who is found



4

to be wrongfully enjoined or restrained, said bond to be 
approved by the Clerk of this Court.

/ s /  Richard T. Rives

RICHARD T. RIVES, Chief Judge 
United States Court of Appeals 
Fifth Circuit

/ s /  Herbert W. Christenberry

HERBERT W. CHRISTENBERRY, 
Chief Judge
United States District Court 
Eastern District of Louisiana

/ s /  J. Skelly Wright

J. SKELLY WRIGHT 
United States District Court 
Eastern District of Louisiana

New Orleans, Louisiana 
August 27, 1960.



5

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION

NO. 3630 
Civil Action

EARL BENJAMIN BUSH, et al
Plaintiffs

versus

ORLEANS PARISH SCHOOL BOARD, et al
Defendants

NO. 10329 
Civil Action

HARRY K. WILLIAMS, et al
Plaintiffs

versus

JIMMIE H. DAVIS, Governor of the 
State of Louisiana, et al

Defendants

Thurgood Marshall 
A. P. Tureaud 
A. M. Trudeau, Jr.

Attorneys for Plaintiffs in No. 3630



6

Jack P. F. Gremillion 
Attorney General for State of Louisiana 

In Proper Person as Defendant in 
No. 3830

Charles E. Richards
Attorney for Plaintiffs in No. 10329

Jack P. F. Gremillion 
Attorney General for State of Louisiana 

In Proper Person as Defendant in 
No. 10329 and Attorney for A. P. 
Tugwell, Defendant, No. 10329

Gerard Rault
Attorney for Orleans Parish School 
Board and James F. Redmond

RIVES, Circuit Judge, and CHRISTENBERRY and 
WRIGHT, District Judges:

These consolidated cases1 are before the Court at 
this time on application for a temporary injunction re­
straining the Governor of Louisiana, her Attorney Gen­
eral and other state officers as well as a state court Judge, 
the members of the Orleans Parish School Board and its 
superintendent from enforcing, executing, or acting under 
the authority of a certain Louisiana state court injunc­
tion as well as under various statutes passed by her leg­
islature. The basis for the application is the allegation
1 Bush v. Orleans Parish School Board, Civil Action 3630, is a class 

action brought by Negro parents in behalf of their minor 
children and others similarly situated.

Williams v. Jimmie H. Davis, Governor of Louisiana, et al., 
is also a class action brought by white parents in behalf of 
their minor children and others similarly situated.



7

that the state court injunction, and the statutes, directly 
or indirectly, require or promote segregation of the races 
in the Orleans Parish public schools in violation o f the 
equal protection and due process provisions of the Four­
teenth Amendment. There is a further allegation that 
the state court injunction is in the teeth of an injunction 
previously issued by this Court, sitting with one judge, 
requiring the Orleans Parish School Board to begin deseg­
regation of the public schools in Orleans Parish in Sep­
tember, 1960.

On February 15, 1956, this Court, in Bush ordered 
the Orleans Parish School Board to begin desegregation 
of the public schools in New Orleans with all deliberate 
speed. When no action was taken by the Board under 
that order, this Court ordered the Board to file a deseg­
regation plan by May 16th, 1960. On May 16th, 1960, 
the Board filed a pleading in the record stating that be­
cause of various Louisiana state laws requiring segrega­
tion of the races in the public schools, it was unable to 
file a plan. Whereupon, on the same day, this Court filed 
its own plan requiring segregation of the Orleans Parish 
Schools beginning with the first grade in September 
I960.2
2 The court order reads:

“IT IS ORDERED that beginning with the opening of school 
in September, 1960, all public schools in the City of New Or­
leans shall be desegregated in accordance with the following 
plan:

“A. All children entering the first grade may attend 
either the formerly all white public school nearest their 
homes, or the formerly all Negro public school nearest 
their homes, at their option.
“B. Children may be transferred from one school to an­
other, provided such transfers are not based on consider­
ation of race.”



8

On July 25th, 1960, the Attorney General, in the 
name of the State of Louisiana, filed a suit in the Civil 
District Court for the Parish of Orleans against the Or­
leans Parish School Board praying for an injunction re­
straining the Board from desegregating the public schools 
of New Orleans. The basis for this injunction was the 
allegation that under Section IV of Act 496 of 1960 only 
the Louisiana Legislature has the right to integrate the 
public schools. In due course the injunction was issued 
as prayed for on July 29th, 1960.

On August 16th, 1960, on motion of the plaintiffs 
in the Bush case, this Court made the Governor of Lou­
isiana and her Attorney General additional parties 
defendant and set the motion for temporary injunction for 
hearing August 26th, 1960. On August 17th, 1960, Wil­
liams, et al v. Davis, Governor of Louisiana, et al was 
filed. Since in the Williams case the plaintiffs also asked 
for a temporary injunction against the Governor3 of Lou­
isiana and her Attorney General, in addition to other state 
officials, a state judge, and the Orleans Parish School 
Board, this Court consolidated the motions for hearing.

SECTIONS I, II AND IV OF ACT 496 OF 1960
AND THE STATE COURT INJUNCTION
Sections I and II of the Act provide for separate 

public schools for non-Negro and Negro children. Under 
Section IV “ the State of Louisiana reserves to itself ex­
clusively through its Legislature, the right to institute 
or reclassify schools on a racially integrated basis.”  It is
3 The Governor did not appear at the hearing nor was he repre­

sented. He was, however, validly served under La. R. S. 13:3471 
(6). See Rule 4(d)(7) Fed. R. Civ. P.



9

Section IV on which the state court relied for its injunc­
tion restraining the Orleans Parish School Board from 
desegregating, stating that this statute “ satisfied the let­
ter and spirit of the requirements of the doctrine set forth 
by the United States Supreme Court in the case of Brown 
v. Board of Education, 349 U. S. 294, 99 L. Ed. 1083 
(1954)”  because “ the Legislature can act with ‘all delib­
erate speed’ to admit children to the public schools ‘on 
a racially non-discriminatory basis.’ ” Assuming the Leg­
islature would be so inclined,4 the statute is still uncon­
stitutional on its face because it gives the Legislature the 
right to decide whether a public school shall be segregated 
or not, and the Brown case teaches that no one has this 
right. Brown v. Board of Education, 347 U. S. 483. “ In 
short, the constitutional rights of children not to be dis­
criminated against in school admission on grounds of race 
or color declared by this Court in the Brown case can 
neither be nullified openly and directly by state legisla­
tors or state executive or judicial officers, nor nullified 
indirectly by them through evasive schemes for segrega­
tion whether attempted ‘ingeniously or ingenuously.’ ”  
Cooper v. Aaron, 358 U. S. 17.
4 But see Act 333 of 1960, La. R. S. 17:337, passed by the same 

legislature at the same session, which provides:
“A. No free school books or other school supplies shall be 
furnished, nor shall any state funds for the operation of 
school lunch programs, or any other school funds be fur­
nished, or any assistance or recognition be given to any 
elementary or secondary school in the state of Louisiana 
which may be racially integrated, or which shall teach 
white and colored children in the same school, under any 
circumstances.
“B. Airy person, firm or corporation violating any of the 
provisions of this Act shall be deemed guilty of a mis­
demeanor, and upon conviction therefor by a court of 
competent jurisdiction for each such violation shall be 
fined or imprisoned in the discretion of the court.”



10

SECTION Y OF ACT 496 OF 1960 
AND THE ACTION OF THE GOVERNOR

Section V provides that where a school board is 
under court order to desegregate, “ the Governor, in his 
sovereign capacity, shall supersede such school board * * *, 
as of the effective date of said decree, and shall take over 
* * * the exclusive control, management and administra­
tion of the public schools * * * on a racially segregated 
basis until such time as the Legislature shall classify or 
reclassify schools to place into operation therein a plan 
of racial integration.”  The Governor, acting under au­
thority of this statute, has taken over the control of the 
public schools in New Orleans and, in compliance with 
the statute, has issued orders to his administrator, the 
defendant James F. Redmond, Superintendent of the Or­
leans Parish public schools, to operate them on a segre­
gated basis. This statute is also unconstitutional on its 
face. It specifically provides that the Governor shall 
operate the schools on a segregated basis. And, as above 
stated, not even the Governor can do this. He, like the 
state legislature and the state judicial officers, is bound 
by the command of Brown. Cooper v. Aaron, supra, p. 17.

ACTS 495 AND 542 OF 1960 AND ACT 256 OF 19585

Act 256 of 1958 gives the Governor the right to 
close any school in the state ordered to integrate. Act 
495 of 1960 gives the Governor the right to close all the 
schools in the state if one is integrated. And Act 542

s La. R. S. 17:336.



11

of 1960 gives the Governor the right to close any school 
threatened with violence or disorder. All these acts have 
as their sole purpose continued segregation in the public 
schools. They are but additional weapons in the arsenal 
of the State for use in the fight on integration. Although 
the right of the Governor to close schools under Act 542 
of 1960 is not in terms predicted on their integration, the 
purpose of the act is so clear that its purpose speaks 
louder than its words. See United States v. American 
Trucking Associations, Inc., 310 U. S. 534, and cases 
there cited at pages 542-544. This act may be more 
sophisticated than Act 495 of 1960 and Act 256 of 1958, 
but it is no less unconstitutional. Cooper v. Aaron, supra, 
p. 17.

ACT 333 OF 1960, ACT 319 OF 19566 AND 
ACT 555 OF 19547

These acts specifically provide for segregation of 
the races in the public schools and withhold, under pen­
alty of criminal sanctions, free school books, supplies, 
lunch, and all state funds from integrated schools. They 
are, of course, unconstitutional on their face. Brown v. 
Board of Education, supra.

Various other statutes, passed by the Legislature 
of Louisiana and dealing with this subject generally, are 
alleged by the plaintiffs to be unconstitutional. Since 
these statutes are unrelated to this litigation, we neither 
consider these allegations nor intimate opinion. Ruling
6 La. R. S. 17:341 et seq.
7 La. R. S. 17:331 et seq.



12

was reserved on various motions made by the defendants 
during the course of the hearing. This opinion disposes 
of those motions.

Judgment accordingly.

/ s /  Richard T. Rives

RICHARD T. RIVES, Chief Judge 
United States Court of Appeals 
Fifth Circuit

/ s /  Herbert W. Christenberry

HERBERT W. CHRISTENBERRY 
Chief Judge
United States District Court 
Eastern District of Louisiana

/ s /  J. Skelly Wright

J. SKELLY WRIGHT 
United States District Judge 
Eastern District of Louisiana

New Orleans, Louisiana 
August 27, 1960.



13

APPEN D IX “ B”

To prohibit the furnishing of free school books, 
school supplies or other school funds or assistance to inte­
grated schools; provide penalties for the violation of pro­
visions of this Act.

WHEREAS it is of the utmost importance to all 
the people of Louisiana, that the State exercise its police 
power to promote the health, morals, better education, 
peace and good order of the people by requiring the main­
tenance of separate schools for the education of white 
and colored children, and the State should not contribute 
any assistance to any school which may be racially inte­
grated under any circumstances, therefore:

Be it enacted by the Legislature of Louisiana:

Section 1. No free school books or other school 
supplies shall be furnished, nor shall any State funds for 
the operation of school lunch programs, or any other school 
funds be furnished, or any assistance or recognition be 
given to any elementary or secondary school in the State 
of Louisiana which may be racially integrated, or which 
shall teach white and colored children in the same school, 
under any circumstances.

Section 2. Any person, firm or corporation violat­
ing any of the provisions of this Act shall be deemed

A C T  333 OF 1960, R. S. 17:337



14

guilty of a misdemeanor, and upon conviction therefor 
by a court of competent jurisdiction for each such vio­
lation shall be fined or imprisoned in the discretion of the 
court.

Approved by the GOVERNOR July 7, 1960.



15

APPENDIX “C”

To authorize the Governor of the state to preserve 
the peace and promote the interest, safety and happiness 
of all the people by closing all public schools when 
any public school or school system is, by court order, 
racially integrated in whole or in part, by providing pro­
tection for the rights of personnel and property of such 
closed schools; by providing protection for the reopening 
of such schools; by providing for the permanent closing 
of the schools; and by providing for the alienation of 
school properties to private persons; and to appeal all laws 
in conflict herewith.

Be it enacted by the Legislature of Louisiana:

Section 1. When the Governor has under any pro­
vision of law taken over the control management and ad­
ministration of any public school or schools as the result 
of a court order decreeing that a School Board or School 
Boards shall place into operation in the schools under 
its or their jurisdiction a plan of racial integration, or de­
creeing that the court itself shall place into operation a 
plan of racial integration, irrespective of any other power 
conferred upon him by the law the Governor of this state 
in order to preserve the peace and to promote the interest, 
safety and happiness of all the people may order all public 
schools in this State closed.

Section 2. The Governor shall take necessary ac­
tion to protect all public school property of all schools 
ordered closed in compliance with Section 1 hereof.

A C T  495 OF 1960, R. S. 17:348.1, E T  SEQ.



16

Section 3. The Governor shall, whenever in his 
judgment he determines that peace and good order can be 
maintained and all schools operated as racially separate 
institutions, order the reopening of all schools closed as 
above provided and the legal authorities of such closed 
schools shall resume their duties and functions as public 
school employees.

Section 4. If the Governor of this State orders all 
public schools closed under the Provisions of Section 1 
hereof, and after a reasonable time determines that all 
the schools may not be reopened and operated on a racially 
segregated basis, he may declare the schools permanently 
closed.

Section 5. The Governor shall direct the parish 
and city School Boards to protect the rights and privileges 
of teachers, bus drivers, and all other school employees 
whose employment shall be affected by the closing of such 
schools; and provided further that the Governor shall di­
rect the parish and city School Boards to continue salary 
payments and other benefits of such personnel for the 
remainder of the school year, except where they have en­
tered a business or accepted other full time private em­
ployment. In the event any such employee shall enter a 
business or accept full time private employment and his 
annual wages, salary or income therefrom is less than 
that which he would have earned as a public school em­
ployee, the parish or city School Board for which he was 
working at the time of severance, shall pay to him the dif­
ference between his actual income and that which he 
would have earned as a public school employee during the 
school year in which the school was closed. In any such 
cases the parish or city School Board may at any time



17

require reasonable proof of any former employee’s status 
with respect to employment and/or income and withhold 
any payment herein provided until such proof has been 
furnished.

If the public schools of this State are closed under 
the provisions of this Act during a vacation period before 
a new school year is begun, the provisions of this Act shall 
apply for the period which would have been the following 
school year.

Section 6. The Governor shall direct the parish 
and city School Boards and the State Board of Education 
to recognize all children in schools closed under the provi­
sions of Section 1 hereof as being in actual attendance 
until such time as he orders the schools reopened or per­
manently closed. The parish or city school Boards shall 
have authority to promote any or all such students in ac­
cordance with rules and regulations adopted by the State 
Board of Education.

Section 7. Any parish and city School Board may 
sell, lease, or otherwise dispose of, at public or private 
sale, for cash or on terms of credit, any real or personal 
property used in connection with the operation of any 
school or schools within its jurisdiction which has been 
permanently closed by order of the Governor as provided 
herein, to any private agency, group of persons, corpora­
tion, or cooperative bona fide engaged in the operation of 
a private non-sectarian school, when in the opinion of 
such Board the best interest of the school system would be 
served by such action. In any such sale, lease, or disposal 
the consideration provided, whether represented by cash



18

or credit, shall be equal to the reasonable value of the 
property, which, in case of a sale, shall be not less than 
the replacement costs of the property sold.

Section 8. If any Section or part of any Section 
of this Act is declared invalid, the remainder of this Act 
shall not thereby be invalidated.

Section 9. All laws or parts of laws in conflict 
herewith be and the same are hereby repealed.

Section 10. This statute shall become effective im­
mediately upon its enactment.

Approved by the Governor July 9, 1960.



19

To establish a method of classification of public 
school facilities in all parish and city school systems to 
provide for the exclusive use of school facilities therein 
by non-Negro and Negro children respectively and the 
mode of changing the classification of any school therein; 
to provide further for the governor to assume from the 
school board or school boards the exclusive control man­
agement and administration of said schools under certain 
conditions; and to provide for matters related thereto.

Be it enacted by the Legislature of the State of 
Louisiana:

Section I. Those public schools in any parish or 
city school system of the State of Louisiana presently 
being utilized in the education of non-Negro children 
through the twelfth grade of school shall from the effec­
tive date of this statute be utilized solely and exclusively 
in the education of non-Negro children, unless otherwise 
classified by the Legislature as provided in Sections III 
and IV hereof.

Section II. Those public schools in such parish or 
city school systems presently being utilized in the educa­
tion of children of the Negro race through the twelfth 
grade of school shall from the effective date of this stat­
ute be utilized solely and exclusively in the education of 
children of the Negro race unless otherwise classified by 
the Legislature as provided in Sections III and IV hereof.

Section III. The President of the Senate shall ap­
point two (2) members from that body, and the Speaker

APPEN D IX “ D ”

A C T  496 OF 1960, R. S. 17:347.1, E T  SEQ.



20

of the House shall appoint two (2) members from the 
House of Representatives who shall serve as the Special 
School Classification Committee of the Louisiana Legisla­
ture, which Committee shall have the power, authority, 
and responsibility of classifying any new public school 
erected or instituted, or of re-classifying any existing pub­
lic school, in any system covered by the other provisions 
of the Act, so as to designate the same for the exclusive 
use of non-Negro children, or for the exclusive use of 
Negro children. Such classification or re-classification 
shall be by a yea or nay vote, the majority of which shall 
be cast affirmatively for such classification or re-classifi­
cation, and the proceedings thereof shall be recorded in 
the minutes of the meeting of the Committee and shall be 
for inspection as public records, preserved and made avail­
able for inspection as public records, as provided by law.

Any such classification or re-classification shall be 
subject to confirmation by the Legislature of Louisiana 
at its next regular session, said confirmation to be accom­
plished by concurrent resolution of the two houses of the 
Legislature.

Each member of the Special School Classification 
Committee shall draw, at the rates paid members of the 
Louisiana Legislature while in regular session, for each 
day that the Special School Classification Committee is in 
actual session in the performance of its duties as required 
herein, a per diem and traveling expenses, not to exceed 
one round trip for each Committee meeting. Such per 
diem and traveling expenses shall, in case of the Senate 
members of the Committee, be paid by the Louisiana Sen­
ate, and in case of the House members of the Committee,



21

by the Louisiana House of Representatives, out of funds 
appropriated by the Louisiana Legislature to each branch 
thereof for its operating expenses.

Section IV. However, the State of Louisiana re­
serves to itself exclusively through its Legislature, the 
right to institute or re-classify schools on a racially inte­
grated basis and the Special School Classification Commit­
tee shall have no authority whatsoever in this regards. 
Racial integration shall only be affected in the public 
schools pursuant to a plan approved and validated by con­
current resolution of the two houses of the Legislature.

Section V. Where, prior to the Legislature of the 
State of Louisiana having classified or re-classified pub­
lic schools in order to put into operation a plan of racial 
integration therein, any court shall decree, or prior to the 
effective date of this Act shall have decreed, as the result 
of a suit at law or in equity in which the State of Lou­
isiana has not been made or properly made a defendant 
that a school board or school boards shall place into opera­
tion in the schools under its or their jurisdiction a plan 
of racial integration or that the court itself shall place 
into operation a plan of racial integration, in that event 
the Governor, in his sovereign capacity, shall supersede 
such school board or school boards affected by the decree, 
as of the effective date of said decree, and shall take over 
in its or their stead the exclusive control, management 
and administration of the public schools under its or their 
jurisdiction, on a racially segregated basis until such time 
as the Legislature shall classify or re-classify schools to 
place into operation therein a plan of racial integration.



22

Section VI. Any suit contesting any of the provi­
sions of this Act may be brought only against the State 
of Louisiana with the consent of the Louisiana Legisla­
ture first obtained as provided by the Constitution of the 
State of Louisiana, and no State, Parish or Municipal 
Board, Agent or Officer shall have any right or authority 
to sue or be sued or to stand in judgment on any ques­
tion affecting the validity of this Act or any of its pro­
visions.

Section VII. If any one or more sections, provi­
sions or clauses of this Act shall be held to be unconstitu­
tional or ineffective for any reason, the remainder hereof 
shall remain in full force and effect.

Section VIII. This statute, being emergency legis­
lation, shall have the effect of law from the date of its 
enactment.

Section IX. All laws or parts of laws in conflict 
herewith, to the extent of the conflict only, particularly 
Section 321 of Title 17 of the Revised Statutes of 1950, 
are hereby repealed.

Approved by the Governor July 9, 1960.



23

APPEN D IX “ E”

ACT 542 OF 1960, R. S. 17:170
To amend Title 17 of the Louisiana Revised Stat­

utes of 1950 by adding thereto a new section to be desig­
nated as R. S. 17:169 to provide for the closing by the 
Governor of any public school in the State of Louisiana in 
case of disorder, riots, or violence or to prevent disorder, 
riots, or violence, to provide for the protection of lease, 
tenure, pay, etc., of teachers and other employees affected 
thereby, and to provide for the re-opening thereof.

Be it enacted by the Legislature of Louisiana:

Section 1. Section 169 of Title 17 of the Louisiana 
Revised Statutes of 1950 is hereby enacted to read as fol­
lows:

Section 169. Closing of a public school by the gov­
ernor in case of disorder, riots, or violence, or to prevent 
disorder, riots, or violence, and providing for the re-open­
ing thereof.

The governor shall close any public school in the 
State of Louisiana when the operation thereof is threat­
ened, interfered with, or disrupted by disorder, riots, or 
violence, or in his judgment the closing of such school 
is deemed necessary to prevent disorder, riots, or violence, 
that would threaten, interfere with, or disrupt the opera­
tion thereof.

The governor shall reopen a school closed under the 
provisions hereof, and it shall resume operation under the 
supervision and control of its parish or city school board



24

when the governor deems it no longer necessary to keep 
the school closed in order to prevent disorder, riots, or 
violence from threatening, interfering with, or disrupting 
the operation of the school.

The governor shall direct the parish and city school 
boards to protect the rights and privileges, or sick leave, 
sabbatical leave, all other types of leave, tenure, retire­
ment, and any other rights and privileges of teachers, bus 
drivers, and all other school employees whose employment 
shall be affected by the closing of such schools; and pro­
vided further that the governor shall direct the parish 
and city school boards to continue salary payments and 
other benefits of such personnel for the remainder of the 
school year, or until the school is reopened as a pub­
lic school under the provisions hereof, whichever occurs 
sooner, except where such personnel has entered a busi­
ness or accepted other full time private employment. In 
the event any such employee shall enter a business or 
accept full time private employment and his annual 
wages, salary or income therefrom is less than that which 
he would have earned as a public school employee, the par­
ish or city school board for which he was working at the 
time of severance, shall pay to him the difference between 
his actual income and that which he would have earned 
as a public school employee during the school year in 
which the school was closed. In any such cases the parish 
or city school board may at any time require reasonable 
proof of any former employee’s status with respect to em­
ployment and/or income and withhold any payment herein 
provided until such proof has been furnished.



25

The governor shall direct the parish and city school 
boards and the State Board of Education to recognize 
all children in schools closed under the provisions hereof 
as being in actual attendance until such time as he orders 
the schools reopened in accordance with the provisions 
hereof. The parish or city school boards shall have au­
thority to promote any or all students in accordance with 
rules and regulations adopted by the State Board of Edu­
cation.

Section 2. If any provision, paragraph, clause, 
sentence, or word of this Act is declared to be unconsti­
tutional or invalid, the remaining provisions, paragraphs, 
sentences, clauses, or words shall not thereby be invalid 
but shall remain in full force and effect.

Section 3. All laws or parts of laws in conflict 
herewith are hereby repealed.

Approved by the Governor July 9, 1960.



26

APPEN D IX “ F”

ACT 256 OF 1958, R. S. 17:336

To authorize the Governor, as the chief magistrate 
of the State, to secure justice to all, preserve the peace, 
and promote the interest, safety, and happiness of all the 
people by closing any racially mixed public school or 
school under court order to racially mix its student body; 
by providing protection for the rights of personnel and 
property of such closed schools; by providing for the re­
opening of such schools; and by providing for the aliena­
tion of school properties to private persons; and to repeal 
all laws in conflict herewith.

Be it enacted by the Legislature of Louisiana:

Section 1. The Governor of the State of Louisiana, 
as the Chief Magistrate, in order to secure justice to all, 
preserve the peace, and promote the interest, safety, and 
happiness of all the people, is authorized and empowered 
to close any racially mixed public school or any public 
school which is subject to a court order requiring it to 
admit students of both the negro and white races by a 
date certain, and fix  the effective date of such closing. 
The Governor is further authorized and empowered to 
close any other public school or schools in any parish or 
city school system where a school has been closed under 
the provisions of this Section if in his opinion the opera­
tion of such school or schools might cause friction or dis­
order among the school children or citizens of said system 
or result in a breach of the peace, civil disorder, or strife.



27

Section 2. The Governor shall take necessary ac­
tion to protect all public school property of any school or 
schools ordered closed in compliance with Section 1 hereof.

Section 3. The Governor shall, whenever in Ms 
judgment he determines that peace and good order can be 
maintained and the school operated as a racially separate 
institution, order the reopening of any school closed as 
above provided and the legal authorities of such closed 
school shall resume their duties and functions as public 
school employees.

Section 4. Any school which cannot be reopened 
by order of the Governor, within a reasonable time, or at 
the conclusion of the school term during which such order 
closing the school was issued, shall be deemed indefinitely 
closed as a public school.

Section 5. The Governor shall direct the parish 
and city School Boards to protect the rights and privi­
leges of sick leave, sabbatical leave, all other types of 
leave, tenure, retirement, and any other rights and privi­
leges of teachers, bus drivers, and all other school em­
ployees whose employment shall be affected by the closing 
of such schools; and provided further that the Governor 
shall direct the parish and city School Boards to continue 
salary payments and other benefits of such personnel for 
the remainder of the school year, except where they have 
been assigned duties in another public school, have en­
tered a business or accepted other full time private em­
ployment. In the event any such employee shall enter 
a business or accept full time private employment and his 
annual wages, salary or income therefrom is less than



28

that which he would have earned as a public school em­
ployee, the parish or city School Board for which he was 
working at the time of severance, shall pay to him the 
difference between his actual income and that which he 
would have earned as a public school employee during the 
school year in which the school was closed. In any such 
cases the parish or city School Board may at any time 
require reasonable proof of any former employee’s status 
with respect to employment and/or income and withhold 
any payment herein provided until such proof has been 
furnished.

Section 6. The Governor shall direct the parish 
and city School Boards and the State Board of Educa­
tion to recognize all children in schools temporarily closed 
because of a mixing of the races as being in actual attend­
ance during this interval. The parish or city School 
Board shall have authority to promote any or all such 
students in accordance with rules and regulations adopted 
by the State Board of Education.

Section 7. Any parish and city School Board may 
sell, lease, or otherwise dispose of, at public or private 
sale, for cash or on terms of credit, any real or personal 
property used in connection with the operation of any 
school or schools within its jurisdiction which has been 
indefinitely closed by order of the Governor as provided 
herein, to any private agency, group of persons, corpora­
tion, or cooperative bona fide engaged in the operation 
of a private non-sectarian school, when in the opinion of 
such Board the best interest of the school system would 
be served by such action. In any such sale, lease, or dis­
posal the consideration provided, whether represented by



29

cash or credit, shall be equal to the reasonable value of 
the property, which, in the case of a sale, shall be not less 
than the replacement costs of the property sold.

Section 8. If any Section or part of any Section 
of this Act is declared to be unconstitutional or invalid, 
the remainder of this Act shall not thereby be invalidated.

Section 9. All laws or parts of laws in conflict 
herewith be and the same are hereby repealed.

Approved by the Governor July 2, 1958.



30

APPENDIX “G”

ACT 319 OF 1956, R. S. 17:341, ET SEQ.
To establish a method of classification of public 

school facilities in any city with a population in excess 
of Three Hundred Thousand (300,000) to provide for the 
exclusive use of school facilities therein by white and 
Negro children respectively, the mode of changing the 
classification of any schools therein, and to provide that 
white teachers shall teach only white children and Negro 
teachers shall teach only Negro children;

Be it enacted by the Legislature of the State of 
Louisiana:

Section I. Those public schools in any city in Lou­
isiana with a population in excess of Three Hundred 
Thousand (300,000) presently being utilized in the edu­
cation of children of the white race through the twelfth 
grade of school shall from the effective date of this statute 
be utilized solely and exclusively in the education of chil­
dren of the white race, unless otherwise classified by the 
Legislature as provided in Sections III and IV hereof.

Section II. Those public schools in such cities pres­
ently being utilized in the education of children of the 
Negro race through the twelfth grade of school shall from 
the effective date of this statute be utilized solely and 
exclusively in the education of children of the Negro race 
unless otherwise classified by the Legislature as provided 
in Sections III and IV hereof.

Section III. From and after the effective date of 
this statute, such new public schools as are erected or



31

instituted in any city with a population in excess of 
Three Hundred Thousand (300,000) shall be classified 
as white or Negro schools by the Special School Classifi­
cation Committee of the Louisiana Legislature, provided 
for in Section IV hereof.

Section IV. The President of the Senate shall 
appoint two (2) members from that body, and the Speaker 
of the House shall appoint two (2) members from the 
House of Representatives who shall serve as the Special 
School Classification Committee of the Louisiana Legis­
lature, which Committee shall have the power and author­
ity to classify any new public schools erected or instituted, 
or to reclassify any existing public school, in any city 
covered by the other provisions of this Act, so as to desig­
nate the same for the exclusive use of children of the 
Negro race. Any such classification or reclassification 
shall be subject to confirmation by the Legislature of 
Louisiana at its next regular session, said confirmation 
to be accomplished by concurrent resolution of the two 
houses of the Legislature. It is clearly understood that 
the Legislature of the State of Louisiana reserves to itself 
the sole power to classify or to change the classification 
of such public schools from all white to any other classi­
fication, or from all Negro to any other classification, 
and the action of the Special School Classification Com­
mittee as recited hereinabove shall not become final unti! 
properly ratified by the Legislature.

Section V. Only white teachers shall teach white 
children in public schools; and only Negro teachers shall 
teach Negro children in public schools.



32

Section VI. Any suit contesting any of the pro­
visions of this Act may be brought only against the State 
of Louisiana with the consent of the Louisiana Legisla­
ture first obtained, as provided by the Constitution of the 
State of Louisiana, and no State, Parish or Municipal 
Board, Agent or Officer shall have any right or authority 
to sue or be sued or to stand in judgment on any ques­
tions affecting the validity of this Act or any of its 
provisions.

Section VII. That if any one or more sections, 
provisions or clauses of this Act shall be held to be un­
constitutional or ineffective for any reason, the remainder 
hereof shall remain in full force and effect.

Section VIII. All laws or parts of laws in conflict 
herewith, particularly Section 321 of Title 17 of the Re­
vised Statutes of 1950 are hereby repealed.

Approved by the Governor July 13, 1956.



33

APPEN D IX “ H ”

ACT 555 OP 1954, R. S. 17:331, ET SEQ.

In the exercise of the Police Power of the State 
of Louisiana; to provide that all public elementary and 
secondary schools in the State of Louisiana shall be oper­
ated separately for white and colored children in order 
to promote and protect public health morals, better edu­
cation and the peace and good order in the State; to pro­
vide penalties for the violation of provisions of this act 
and to repeal all laws or parts of laws in conflict herewith.

Whereas the exercise of the State police power 
shall never be abridged as provided in Section 18 of Arti­
cle XIX  of the Constitution of Louisiana, and as reserved 
in the Tenth Amendment to the United States Consti­
tution; and

Whereas, in the exercise of said State police power, 
laws have been enacted throughout the history of the 
State requiring the maintenance of separate schools for 
the education of white and colored children, in the col­
lective wisdom and experience of all its people, regardless 
of race, to promote the health, peace, morals, better edu­
cation, and good order of the people and such separate 
schools are required not on the basis of race but for the 
advancement, protection and better education of all chil­
dren of school age in Louisiana regardless of race, and 
the enforcement of the State police power requiring sep­
arate schools because of these serious considerations is of 
the utmost importance to all of the people of Louisiana, 
regardless of race.



34

Be it enacted by the Legislature of Louisiana:

Section 1. All public elementary and secondary 
schools in the State of Louisiana shall be operated sep­
arately for white and colored children. This provision is 
made in the exercise of the State police power to promote 
and protect public health, morals, better education and 
the peace and good order in the State and not because 
of race.

Section 2. The State Board of Education shall 
not approve any public schools which may violate the pro­
visions of this act nor shall any of the State colleges or 
university recognize any certificate of graduation from 
such public school which may violate the provisions of this 
act as entitling the holder thereof to admission.

Section 3. No free school books or other school sup­
plies shall be furnished, nor shall any State funds for the 
operation of school lunch programs, or any other school 
funds be furnished or given to any public elementary or 
secondary school which may violate the provisions of this 
Act as above.

Section 4. Any person, firm or corporation violat­
ing any of the provisions of this Act shall be deemed 
guilty of a misdemeanor and upon conviction therefor by 
a court of competent jurisdiction for each such violation 
shall be fined not less than five hundred dollars nor more 
than one thousand dollars, or sentenced to imprisonment 
in the parish jail not less than ninety days nor more 
than six months, or both, fined and imprisoned as above, 
at the discretion of the Court.



35

Section 5. In case any part of this Act shall be 
held to be unconstitutional, this shall not have the effect 
of invalidating any part of it that is constitutional, and 
the part or parts not affected by such ruling shall con­
tinue in full force and effect. This Act shall be liberally 
construed to protect and preserve the State Police Power 
as provided in this Act.

Section 6. That any laws or parts of laws in con­
flict herewith be and the same are hereby repealed.

Approved by the Governor July 8, 1954.



36

APPENDIX “ I”

MOTION TO DISMISS AND PLEA TO JURISDICTION 
ON BEHALF OF THE STATE OF LOUISIANA

(Number and Title Omitted) Filed: November 1, 1955

Now, comes Fred S. LeBlanc, Attorney General of 
the State of Louisiana, appearing herein specially on its 
behalf, and for the sole and only purpose of filing this 
motion and plea, moves the Court to dismiss this action 
on the following grounds:

I.
This suit is in effect a suit against the State of 

Louisiana, and any judgment which might be rendered 
in accordance with the prayer of the plaintiffs would have 
the effect of controlling the State’s political power and 
internal policy concerning the regulation and support of 
public education under its Constitution and Laws, and a 
judgment or decree granting plaintiffs’ demands would 
direct and regulate the executive authority of the State 
in the enforcement of its police power to regulate and 
provide for public education and the public health, peace 
and good order of the State, and would further require 
the Court to supervise the conduct of State officials with 
regard thereto.

II.
The State of Louisiana has not given its consent 

to be sued in matters involving the regulation, super-



37

vision and control of public education and the police power 
of the State with reference to the matters and things set 
forth in the preceding paragraph.

HI.
The provisions of the Constitution of the United 

States vesting jurisdiction in the Courts of the United 
States does not give to said Courts jurisdiction in contro­
versies between a State and its citizens, under Section 2 
of Article III of the United States Constitution, or the 
Acts of Congress enacted pursuant thereto.

IV.

The Eleventh Amendment to the United States Con­
stitution contains an express limitation prohibiting the 
Federal Courts from exercising jurisdiction in suits 
brought by individuals against any of the sovereign States 
of the Union, and since the State of Louisiana has not 
given its consent to be sued herein, this Court is without 
jurisdiction to hear and determine this cause.

V.

Under the provisions of Section 35, Article III of 
the Constitution of the State of Louisiana, the consent 
of the State to be sued can only be given through an Act 
of the Legislature of Louisiana, and no such suit may 
be instituted in any Court other than a Court of Louisi-



38

ana. No Act of the Legislature of Louisiana has given 
consent to the filing of this suit.

(Signed) Fred S. LeBlanc 
Fred S. LeBlanc 
Attorney General of the 
State of Louisiana.

(Signed) W. C. Perrault
W. C. Perrault,
1st Assistant Attorney General 
of the State of Louisiana.

(Signed) Carroll Buck 
Carroll Buck,
2nd Assistant Attorney General 
of the State of Louisiana.

B y:-------------------------------------------------------

CERTIFICATE.

I do hereby certify that a copy of the above and 
foregoing Motion has this day been served upon A. P. 
Tureaud, Sr., counsel for Plaintiffs, by mailing a copy 
thereof addressed to him at 1821 Orleans Ave., New 
Orleans, La., postage prepaid, this 31st day of October, 
1955.

(Signed) Fred S. LeBlanc
Attorney General of the 
State of Louisiana.



39

APPENDIX “J”

MOTION FOR A REHEARING ON BEHALF OF THE 
STATE OF LOUISIANA

(Number and Title Omitted) Filed: February 24, 1956
Now comes Fred S. LeBlanc, Attorney General of 

the State of Louisiana, appearing herein specially on its 
behalf and for the sole and only purpose of filing this 
motion, moves the Court for a rehearing on its Motion 
to Dismiss for lack of Jurisdiction for the following 
reasons:

The Court held that this is not a suit against the 
State of Louisiana because “ a suit against officers or 
agents of a state acting illegally is not a suit against 
the state,” citing Georgia R. Co. v. Redwine 342 US 
299. This holding of the Court is erroneous because in 
Footnote 15 of the case cited by the Court it is shown 
that a complaint asking relief which if granted would 
require affirmative action by the state is in fact a suit 
against the state. In the present instance the decree 
issued by this Court would certainly require affirmative 
action by the state through defendant school board.

WHEREFORE, mover prays the ruling of the 
Court dismissing the plea to the jurisdiction be recon­
sidered and reheard.

Respectfully submitted,

(Signed) Fred S. LeBlanc

Fred S. LeBlanc 
Attorney General of the 
State of Louisiana.



40

CERTIFICATION
I certify a copy of the above and foregoing motion 

has this day been served on A. P. Tureaud, Sr., Attorney 
for plaintiff, by mailing a copy of same addressed to him 
at his office in the City of New Orleans, on this 24th 
day of February, 1956.

(Signed) Fred S. LeBlanc

Fred S. LeBlanc 
Attorney General of the 
State of Louisiana.



41

APPEN D IX “ K ”

LOUISIANA CONSTITUTION OF 1921, ARTICLE XII

Section 1. (As Amended.) The Legislature shall 
have full authority to make provisions for the education 
of the school children of this State and,/or for an education­
al system which shall include all public schools and all in­
stitutions of learning operated by State agencies In this 
connection, the Legislature may authorize and/or provide 
financial assistance to students attending private non­
sectarian elementary and/or secondary schools in this 
State, out of any monies or funds presently or hereafter 
dedicated or devoted to public schools or public education 
whether by this Constitution or by statute, anything in 
this Constitution to the contrary notwithstanding. A  
non-sectarian school, as used herein, shall mean a school 
whose operation is not controlled directly or indirectly 
by any church or sectarian body or by any individual 
or individuals acting on behalf of a church or sectarian 
body. Children attaining the age of six within four months 
after the beginning of any public school term or session 
may enter public schools at the beginning of the school 
term or session, and kindergartens may be authorized 
for children between the ages of four and six years, pro­
vided that in any parish or municipality the School Board 
may establish the policy that only children attaining the 
age of five on or before December 31 may enter kinder­
garten at the beginning of the term or session and only 
those attaining the age of six on or before December 31 
may enter regular public school at the beginning of the 
term or session.



42

APPENDIX “L”

Minute Entry 
Wright, J. 
May 16, 1960

No. 3630 
CIVIL ACTION

EARL BENJAMIN BUSH, et al

v.
ORLEANS PARISH SCHOOL BOARD

It appearing that on February 15, 1956, the de­
fendant herein was ordered to desegregate the public 
schools in the Parish of Orleans with all deliberate speed; 
it appearing further that on July 15, 1959, the defendant 
herein was ordered to file a plan of desegregation by 
March 1, I960; it appearing further that on October 9, 
1959, the time for filing the plan was extended to May 
16, 1960; it appearing further that on this date, May 
16, 1960, the defendant has failed to file a plan.

IT IS ORDERED that beginning with the open­
ing of school in September, 1960, all public schools in 
the City of New Orleans shall be desegregated in accord­
ance with the following plan:

A. All children entering the first grade 
may attend either the formerly all white public



43

school nearest their homes, or the formerly all 
negro public school nearest their homes, at their 
option.

B. Children may be transferred from one 
school to another, provided such transfers are not 
based on consideration of race.

(Signed) J. SKELLY WRIGHT
United States District Judge



44

APPEN D IX  “ M ”

CIVIL DISTRICT COURT FOR THE PARISH 
OF ORLEANS 

STATE OF LOUISIANA

NO. 382,646

DIVISION “A ” 
DOCKET 5

STATE OF LOUISIANA
versus

ORLEANS PARISH SCHOOL BOARD, et al

JUDGMENT
The rule herein filed on July 25, 1960, by the State 

of Louisiana came on this day for hearing.
PRESENT: JACK P. F. GREMILLION, Attorney Gen­

eral, State of Louisiana,
M. E. CULLIGAN, Special Assistant Attor­

ney General,
JOHN E. JACKSON, JR., Special Assistant 

Attorney General,
WILLIAM P. SCHULER, Special Assistant 

Attorney General,
WELDON A. COUSINS, Special Assistant 

Attorney General.
GERARD A. RAULT, Attorney for Orleans 

Parish School Board.
GEORGE A. DREYFOUS, Amicus Curiae.



45

When, after hearing the pleadings, and argument 
of counsel, and for the written reasons herein filed and 
made part of the record;

IT IS ORDERED, ADJUDGED AND DECREED 
that the said rule be made absolute, and accordingly, that 
a preliminary writ of injunction issue herein, restraining, 
enjoining and prohibiting the defendants, the Orleans 
Parish School Board, and its members, Emile A. Wagner, 
Jr., Theodore H. Shepard, Jr., Matthew R. Sutherland, 
Lloyd J. Rittiner, and Louis G. Riecke, their agents, em­
ployees, and all other persons, firms or corporations acting 
or claiming to act in their behalf, from doing any acts 
whatsoever towards the re-classification of negro and non- 
negro public schools in the Parish of Orleans either by 
affirmative or negative action on their part.

JUDGMENT, READ, RENDERED AND SIGNED IN 
OPEN COURT ON JULY 29, 1960.

/ s /  Oliver P. Carriere

JUDGE



46

CIVIL DISTRICT COURT FOR THE PARISH 
OF ORLEANS

STATE OF LOUISIANA

NO. 382,646 DIVISION “ A ” DOCKET NO. 5

STATE OF LOUISIANA

versus

ORLEANS PARISH SCHOOL BOARD, et al

REASONS FOR JUDGMENT

STATEMENT
This is a suit by the State of Louisiana seeking to 

enjoin the Orleans Parish School Board, et al, from doing 
any act whatsoever towards the reclassification of negro 
and white students in the public schools in the Parish of 
Orleans either by affirmative or negative action on their 
part.

The petitioners invoke as authority for this action 
Act 319 of 1956 and Act 496 of 1960.

JURISDICTION 

CONFLICT AND COMITY
This Court is aware that an injunction has been 

issued by the Federal District Court for the Eastern Dis­
trict of Louisiana, ordering the Orleans Parish School 
Board to integrate the public schools of Orleans Parish in 
a prescribed manner.



47

The suit under which the Federal Court Order was 
rendered was an “ in personam” action seeking to have the 
integration of the Public Schools in Orleans Parish. The 
injunction which was issued by the Federal District Court 
on May 11, 1960, constituted an “ in personam” judgment. 
A “ res”  has never been involved in this action which is 
now pending in the Federal Appellate Courts.

The Federal and State Courts have concurrent ju­
risdiction over all actions which are “ in personam” . This 
accepted maxim of the jurisdictional relationship between 
our two judicial systems was recognized by the United 
States Supreme Court in Kline v. Burke Const. Co., 260 
U. S. 226, 43 S. C. 79, 67 L. Ed. 226, Mr. Justice Suther­
land, in delivering his opinion, held:

“ But a controversy is not a thing, and a contro­
versy over a mere question of personal liability 
does not involve the possession or control of a thing, 
and an action brought to enforce such a liability 
does not tend to impair or defeat the jurisdiction of 
the court in which a prior action for the same cause 
is pending. Each court is free to proceed in its own 
way and in its own time, without reference to the 
proceedings in the other court. Whenever a judg­
ment is rendered in one of the courts and pleaded 
in the other, the effect of that judgment is to be 
determined by the application of the principles of 
res judicata by the court in which the action is 
still pending in the orderly exercise of its juris­
diction, as it would determine any other question 
of fact or law arising in the progress of the case.
The rule, therefore, has become generally estab­
lished that where the action first brought is in



48

personam and seeks only a personal judgment, an­
other action for the same cause in another juris­
diction is not precluded. * * *”

Also see Williams— Federal Practice (2nd ed., 
1927) p. 254 Comity—-as between State and Fed­
eral Courts.

The State Court must, therefore, entertain this 
action in which the State of Louisiana seeks to enjoin 
the Orleans Parish School Board from doing any act 
whatsoever towards reclassification of negro and white 
students in the public schools in the Parish of Orleans. 
This action like the action pending in Federal Court is 
“ in personam” in its nature.

The true rule deduced is that where a suit is 
strictly “ in personam” in which nothing more than a per­
sonal judgment is sought, there is no objection to a subse­
quent action in another jurisdiction, either before or after 
judgment, although the same issues are to be tried and 
determined; and this because it neither ousts the juris­
diction of the Court in which the first suit was brought, 
nor does it delay or obstruct the exercise of that juris­
diction, nor lead to a conflict of authority where each 
Court acts in accordance with law. Of course the above 
is subject to the proper application of the principles of 
res judicata.

CONSTITUTIONALITY OF ACT 496 OF 1960
This Act transfers the power of classifying and 

reclassifying the Public School facilities in all Parish 
and City School systems in the State of Louisiana to a 
committee of the Legislature whose actions are subject



49

to confirmation by the Legislature of Louisiana at its 
next regular session. However, the Legislature is given 
the exclusive right to institute or reclassify schools on an 
integrated basis.

Thus the Act itself provides the machinery for the 
integration of the Public Schools of Louisiana. Since 
the Legislature can act with “ all deliberate speed”  to 
admit children to the public schools “ on a racially non- 
discriminatory basis” , Act 496 of 1960 satisfies the letter 
and spirit of the requirements of the doctrine set forth 
by the United States Supreme Court in the case of Brown 
v. Board of Education, 349 U. S. 294, 99 L. Ed., 1083 
(1954).

POSITION OF ORLEANS PARISH SCHOOL BOARD 
The order of the United States District Court provides:

“ IT IS ORDERED that beginning with the open­
ing of school in September, 1960, all public schools 
in the City of New Orleans shall be desegregated 
in accordance with the following plan:

a. All children entering the first grades may at­
tend either the formerly all white public school 
nearest their homes, or the formerly all Negro 
public school nearest their homes, at their op­
tion.

b. Children may be transferred from one school 
to another, provided such transfers are not 
based on consideration of race.”

If the Civil District Court for the Parish of Or­
leans grants the relief prayed for in the instant suit the 
school board will be enjoined from doing any act what-



50

soever towards the reclassification of negro and white 
students in the public schools in the Parish of Orleans, 
either by affirmative or negative action on their part.

It is settled in the United States Court of Appeals 
for the Fifth Circuit that segregation, as such, is not 
condemned, and that integration is not required by the 
Fourteenth Amendment. Avery v. Wichita Falls Independ­
ent School District, 241 Fed. 2d. 230. Its prohibition 
is against state action depriving “any person”  of life, 
liberty, or property without due process of law, and denial 
“ to any person”  the equal protection of the laws. In short 
the United States Constitution does not require integra­
tion; it merely forbids discrimination. Consequently, the 
Orleans Parish School Board, for example, may decline 
to open the public schools in New Orleans and violate 
neither the order of the United States District Court nor 
the order of the State Court.

The Court does not imply that the above is the only 
action which the School Board may take or that it is the 
only course which it may pursue. The Court is merely 
pointing out that if the Civil District Court grants the 
judgment prayed for in the instant case, the School Board 
will not be placed in an impossible situation.

THE PROVISIONS OF ACT 496 OF 1960, SECTION 5, 
READ AS FOLLOWS

“ Section V. Where, prior to the Legislature of the 
State of Louisiana having classified or reclassified 
public schools in order to put into operation a plan 
of racial integration therein, any court shall decree, 
or prior to the effective date of this Act shall have



51

decreed, as the result of a suit at law or in equity 
in which the State of Louisiana has not been made 
or properly made a defendant, that a school board 
or school boards shall place into operation in the 
schools under its or their jurisdiction a plan of 
racial integration, or that the court itself shall 
place into operation a plan of racial integration, 
in that event the Governor, in his sovereign capac­
ity, shall supersede such school board or school 
boards affected by the decree, as of the effective 
date of said decree, and shall take over in its or 
their stead the exclusive control, management and 
administration of the public schools under its or 
their jurisdiction, on a racially segregated basis 
until such time as the Legislature shall classify or 
reclassify schools to place into operation therein 
a plan of racial integration.”

OPINION
The Court is of the opinion that it has jurisdiction 

over the subject matter involved and that Act 496 of 
1960, upon which the petitioners rely, is constitutional.

The writ of preliminary injunction enjoining the 
defendants from doing any act whatsoever towards the 
re-classification of negro and non-negro public schools in 
the Parish of Orleans either by affirmative or negative 
action on their part will be issued.

/ s /  Oliver P. Carriere

New Orleans, Louisiana 
July 29, 1960

JUDGE



52

APPENDIX “N”

Minute Entry 
August 16, 1960

JUDGE RIVES
JUDGE CHRISTENBERRY
JUDGE WRIGHT

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION

NO. 3630— CIVIL ACTION

EARL BENJAMIN BUSH, GAIL FAYE BUSH, LEON­
ARD BUSH, LEON BUSH, LORETTA BUSH and DON­
ALD BUSH, infants, by Oliver Bush, Sr., their father 

and next friend, et al

versus

ORLEANS PARISH SCHOOL BOARD, ET AL

It appearing that plaintiffs herein have filed a 
motion for permission to file a supplemental complaint 
making the Honorable Jimmie H. Davis, Governor of the 
State of Louisiana, and the Honorable Jack P. F. Gre- 
million, Attorney General of the State of Louisiana, addi­
tional parties defendant;

And it further appearing that the plaintiffs have 
filed a motion for a temporary injunction, restraining the



53

additional defendants from enforcing Act 496 of 1960 of 
the Legislature of Louisiana, on the ground of its uncon­
stitutionally, and further restraining these additional de­
fendants from proceeding with an action brought in the 
name of The State of Louisiana in the Civil District 
Court for the Parish of Orleans, State of Louisiana, cap­
tioned STATE OF LOUISIANA vs. ORLEANS PARISH 
SCHOOL BOARD, ET AL, Civil No. 382-646;

And it further appearing that the Honorable Rich­
ard T. Rives, Chief Judge of the United States Court of 
Appeals for the Fifth Circuit of the United States, has 
convened a three-judge court under 28 U. S. C. 2284 to 
hear the application for injunction filed against the addi­
tional defendants;

IT IS ORDERED that the supplemental complaint 
be filed.

IT IS FURTHER ORDERED that the Honorable 
Jimmie H. Davis, Governor of Louisiana, and the Honor­
able Jack P. F. Gremillion, Attorney General of Louisi­
ana, be, and the same are hereby made parties defendant 
in this action.

IT IS FURTHER ORDERED that the motion for 
temporary injunction against the Honorable Jimmie H. 
Davis, Governor of Louisiana, and the Honorable Jack P. 
F. Gremillion, Attorney General of Louisiana, be, and the 
same is hereby set for hearing before the three-judge 
court sitting in New Orleans on Tuesday, August 23d, at 
10:00 A. M.



54

IT IS FURTHER ORDERED that the hearing of 
the motion for temporary injunction be had on a written 
record composed of affidavits and other documents. No 
oral testimony will be taken at the hearing.

IT IS FURTHER ORDERED that the parties file 
briefs in support of their positions at the time of the 
hearing.

IT IS FURTHER ORDERED that copies of the 
supplemental complaint, the original complaint, and the 
motion for temporary injunction be served by the United 
States Marshal on the Honorable Jimmie H. Davis, Gov­
ernor of Louisiana, and the Honorable Jack P. F. Gre- 
million, Attorney General of Louisiana, with the sum­
mons.

(Initialed) J. S. W.



55

APPENDIX “O”

STATE OF LOUISIANA 

EXECUTIVE DEPARTMENT 

BATON ROUGE 

EXECUTIVE ORDER NO. 1

1.

In accordance with the provisions of Act 496 of 
1960, I, the Governor of the State of Louisiana, in my sov­
ereign capacity, do hereby supersede the Orleans Parish 
School Board and do hereby take over the exclusive con­
trol, management and administration of all the public 
schools in the Parish of Orleans formerly under the juris­
diction of the Orleans Parish School Board, as of this 
date.

2.

I do hereby direct that the public schools in the 
Parish of Orleans shall be opened on September 7, 1960.

3.

I do hereby designate James F. Redmond to act 
on my behalf and as my Agent to operate all of the public 
schools for the Parish of Orleans.

4.

I direct that registration of all new students desir­
ing admission to the public schools of the Parish of Or-



56

leans be effected in accordance with the following pro­
cedure :

a) For students entering the first grade:

Notify by U. S. Mail, addressed to Mr. James F. 
Redmond, 703 Carondelet Street, New Orleans, Louisiana, 
the name of the student seeking registration, school in 
which registration is sought and school of second choice 
in which registration is sought, present address, where 
and when born, number of the birth certificate, exact year 
of birth, sex and race, mother’s maiden name and occupa­
tion, father’s name and occupation, physician who deliv­
ered child, any illnesses. The above notice shall be post­
marked on or before 12:00 o’clock Midnight, September 
2, 1960, and such notice shall be accompanied with a certi­
fied copy of the birth certificate of the student and a vac­
cination certificate, or evidence of same, of the student.

b) For students entering other than the first
grade:

Notify by U. S. Mail, addressed to Mr. James F. 
Redmond, 703 Carondelet Street, New Orleans, Louisiana, 
the name of the student seeking registration, school in 
which registration is sought and school of second choice 
in which registration is sought, present address, where 
and when born, number of the birth certificate, exact 
year of birth, sex and race, mother’s maiden name and 
occupation, father’s name and occupation, physician who 
delivered child, any illnesses, and proper evidence of school 
credits previously attained by the student. The above 
notice shall be postmarked on or before 12:00 o’clock 
midnight, September 2, 1960, and such notice shall be



57

accompanied with a certified copy of the birth certificate 
of the student and a vaccination certificate, or evidence 
of same, of the student.

IN WITNESS WHEREOF, I have 
hereunto set my hand and caused to 
be affixed the Great Seal of the State 
of Louisiana, at the Capitol, in the 
City of Baton Rouge, on this the 17th 
day of August, A. D., 1960.

/ s /  JIMMIE H. DAVIS

GOVERNOR OF LOUISIANA
ATTEST
BY THE GOVERNOR

/ s /  J. R. NELSON

ASST. SECRETARY OF STATE 

A TRUE COPY

ASST. SECRETARY OF STATE



58

APPEN D IX “P”

Minute Entry 
August 17, 1960

JUDGE RIVES
JUDGE CHRISTENBERRY
JUDGE WRIGHT

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION

NO. 3630— CIVIL ACTION

EARL BENJAMIN BUSH, GAIL FAYE BUSH, LEON­
ARD BUSH, LEON BUSH, LORETTA BUSH and DON­
ALD BUSH, infants, by Oliver Bush, Sr., their father and 

next friend, et al

versus

ORLEANS PARISH SCHOOL BOARD, ET AL

It appearing from the attached return of the Mar­
shal, that service was unable to be effected on the Honor­
able Jimmie H. Davis, Governor of Louisiana, and the 
Honorable Jack P. F. Gremillion, Attorney General of 
Louisiana; and

It further appearing that under 28 U. S. C. §2284 
five (5) days’ notice of the hearing on the motion for 
temporary injunction is required;



59

IT IS ORDERED that the hearing of the motion 
for temporary injunction filed herein be, and the same 
is hereby, continued from Tuesday, August 23, 1960 to 
Friday, August 26, 1960.

IT IS FURTHER ORDERED that the United 
States Marshal continue his efforts to serve the defend­
ants herein, using any number of deputies which the serv­
ice requires.

IT IS FURTHER ORDERED that the hearing 
on the motion for temporary injunction filed in this 
case be, and the same is hereby, consolidated with the 
hearing on the motion for temporary injunction filed in 
WILLIAMS, ET AL vs. JIMMIE H. DAVIS, GOVER­
NOR OF THE STATE OF LOUISIANA, ET AL, Civil 
Action No. 10329.

IT IS FURTHER ORDERED that a copy of this 
Order be served on the Honorable Jimmie H. Davis, Gov­
ernor of Louisiana, and the Honorable Jack P. F. Gre- 
million, Attorney General of Louisiana.

(Initialed) J. S. W.



60

APPENDIX “Q”

August 30, 1960 
Minute Entry

Rives, J.
Christenberry, J.
Wright, J.

U. S. District Court 
Eastern District of Louisiana

Filed Sep. 1, 1960

Initialed (H. W. N.)

A. Dallam O’Brien, Jr. 
Clerk

No. 3630 
CIVIL ACTION

EARL BENJAMIN BUSH, et al
Plaintiffs

versus
ORLEANS PARISH SCHOOL BOARD, et al

Defendants



61

No. 10829 
CIVIL ACTION

HARRY K. WILLIAMS, et al 

versus
Plaintiffs

JIMMIE H. DAVIS, Governor of the State 
of Louisiana, et al

Defendants

ORDER
IT IS ORDERED that the fourth paragraph of the 

temporary injunction granted by this court herein and 
dated August 27, 1960, be, and the same is hereby 
amended to read as follows:

IT IS FURTHER ORDERED that the Orleans 
Parish School Board comply with the order of this court, 
sitting with one judge, dated May 16, 1960, as amended, 
in Bush v. Orleans Parish School Board, Civil Action No. 
3630, requiring desegregation beginning with the first 
grade.

(signed) Richard T. Rives

RICHARD T. RIVES,
U. S. CIRCUIT JUDGE

(signed) Herbert W. Christenberry

HERBERT W. CHRISTENBERRY, 
U. S. DISTRICT JUDGE

(signed) J. Skelly Wright

J. SKELLY WRIGHT, 
U. S. DISTRICT JUDGE



62

APPENDIX “R”

Minute Entry 
Wright, J. 
August 30, 1960

NO. 3630 
CIVIL ACTION

EARL BENJAMIN BUSH, et al
Plaintiffs

versus

ORLEANS PARISH SCHOOL BOARD, et al
Defendants

ORDER
On motion of the Orleans Parish School Board and 

on suggesting to the court (1) that, because of Executive 
Order No. 1 and a certain state court injunction, it has 
been impossible for the Board properly to implement this 
court’s order of May 16, 1960, in time for the opening of 
school on September 8, 1960, and (2) that such implemen­
tation can be completed by November 14, 1960;

And the court being impressed with the sincerity 
and good faith of the Board, each member of which per­
sonally appeared, with the exception of member Emile 
A. Wagner, Jr. who was absent from the city at the time;



63

IT IS ORDERED that the execution date for the 
plan of desegregation contained in this court’s order of 
May 16, 1960, be extended to Monday, November 14, 
1960, which is the beginning of the second quarter of the 
school year.

IT IS FURTHER ORDERED that the record show 
that counsel representing the plaintiffs opposed the mo­
tion of the Board.

UNITED STATES DISTRICT 
JUDGE



64

APPEN D IX “ S”

Minute Entry-
August 17, 1960
JUDGE RIVES
JUDGE CHRISTENBERRY
JUDGE WRIGHT

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION

NO. 10329— CIVIL ACTION

HARRY K. WILLIAMS, individually and on behalf of 
his minor HARRY ELTON WILLIAMS, pupil at 

Gregory Junior High School, ET AL

versus

JIMMIE H. DAVIS,
Governor of the State of Louisiana,

JACK P. F. GREMILLION, Attorney General 
of the State of Louisiana, ET AL

It appearing that the plaintiffs have filed a motion 
for a temporary injunction, restraining the Honorable 
Jimmie H. Davis, Governor of Louisiana, the Honorable 
Jack P. F. Gremillion, Attorney General of Louisiana, and



65

other defendants from enforcing various acts of the Leg­
islature and provisions of the Constitution of Louisiana, 
on the ground of unconstitutionality, and further restrain­
ing these defendants from proceeding with an action 
brought in the name of The State of Louisiana in the Civil 
District Court for the Parish of Orleans, State of Lou­
isiana, captioned STATE OF LOUISIANA vs. ORLEANS 
PARISH SCHOOL BOARD, ET AL, Civil No. 382-646;

And it further appearing that the Honorable Rich­
ard T. Rives, Chief Judge of the United States Court of 
Appeals for the Fifth Circuit of the United States, has 
convened a three-judge court under 28 U. S. C. §2284 to 
hear the application for injunction filed herein;

IT IS ORDERED that the hearing on plaintiffs’ 
motion for temporary injunction against the Honorable 
Jimmie H. Davis, Governor of Louisiana, the Honorable 
Jack P. F. Gremillion, Attorney General of Louisiana, 
and other defendants named therein, be, and the same is 
hereby set for Friday, August 26, 1960, before the three- 
judge Court sitting in New Orleans.

IT IS FURTHER ORDERED that the hearing of 
the motion for temporary injunction be had on a written 
record composed of affidavits and other documents.

IT IS FURTHER ORDERED that copies of the 
complaint, the motion for temporary injunction, and this 
order be served by the United States Marshal on the Hon­
orable Jimmie H. Davis, Governor of Louisiana, and the 
Honorable Jack P. F. Gremillion, Attorney General of 
Louisiana, and the other defendants named therein with 
the summons.



V.

i