With considerable deference, I must, in good conscience dissent, though respectfully. This case presented, I think, purely a factual question, the decision of which was for the district judge, and commendably he shouldered the responsibility imposed upon him by law.
Section 2281 of Title 28 United States Code, does not require a district court of three judges in every case when request*811ed in a complaint containing the necessary formal averments, but only when it is made to appear that a grant of the application would require the issuance of an injunction restraining the enforcement, operation or execution of a State statute upon the ground that such statute violates the Constitution of the United States. That section provides that such an injunction “shall not be granted * * * unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.” (Italics supplied.) Under Section 2284, the first judge to take action upon an application for injunction is the district judge to whom the application is presented. His is the first responsibility to determine whether a three-judge court is required. The claim of unconstitutionality must present a substantial federal question. Jameson & Co. v. Morgenthau, 307 U.S. 171, 59 S.Ct. 804, 83 L.Ed. 1189; Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152; Stratton v. St. Louis Southwestern Ry. Co., 282 U.S. 10, 51 S. Ct. 8, 75 L.Ed. 135. If the statute under attack is clearly valid, Independent Gin & Warehouse Co. v. Dunwoody, D.C.Ala., 30 F.2d 306, affirmed 5 Cir., 40 F.2d 1, or if all that is involved is construction rather than unconstitutionality of the statute, Ex parte Hobbs, 280 U.S. 168, 50 S.Ct. 83, 74 L.Ed. 353, Query v. United States, 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed. 1616, no three-judge court is necessary. If the district judge to whom the application is presented finds no substantial federal question, he may, subject to review, determine that a three-judge court is not required, and proceed with the trial of the case in a regular one-judge district court. Ex parte Poresky, supra; Schermerhorn, Inc. v. Holloman, 10 Cir., 74 F.2d 265. That is what the district judge did in this case, and in my opinion he acted properly. The interlocutory injunction which he granted was not based upon the unconstitutionality of any State statute. As said by Circuit Judge Miller speaking for a three-judge district court in Gray v. Board of Trustees of University of Tennessee, D.C., 100 F. Supp. 113, 114, 115:
“We are of the opinion that the case is not one for decision by a three-judge court. Title 28 U.S. Code, § 2281, requires the action of a three-judge court only when an injunction is issued restraining the action of any officer of the State upon the ground of the unconstitutionality of such statute. We are of the opinion that the case presents a question of alleged discrimination on the part of the defendants against the plaintiffs under the equal protection clause of the 14th Amendment, rather than the unconstitutionality of the statutory law of Tennessee requiring segregation in education. As such, it is one for decision by the District Judge instead of by a three-judge court.”
Basically, the “State statute” involved in this case is Article XII, Section 1 of the Constitution of Louisiana. That clearly appears from a reading of paragraphs 7, 8, and 13 of the complaint quoted in Footnote 1 of the majority opinion. The “order” referred to in paragraph 8 is claimed to be authorized by that provision of the State Constitution, and if it is found to be contrary thereto, then the “order” falls under the State Constitution without any necessity for resorting to the Federal Constitution. The pertinent provision of the Constitution of Louisiana reads as follows : “Separate free public schools shall be maintained for the education of white and colored children between the ages of six and eighteen years”.
The complaint in this case did not challenge segregation per se. It was framed upon the assumption that, under the present state of the law, segregation is valid if equal facilities are provided. Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. Instead, the complaint charged that the facilities provided were unequal and such as toi discriminate against the plaintiff on account of his race or color in violation of *812the equal protection clause of the Four- ■ teenth Amendment.
The quoted provision of the State Constitution has never been construed by the Supreme Court of Louisiana to require segregation in the public schools if unequal facilities are provided. It could not be so construed and remain valid under the Federal Constitution. As said in Missouri ex rel Gaines v. Canada, 305 U.S. 337, 349, 59 S.Ct. 232, 236, 83 L.Ed. 208, “The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges which the laws give to ' the separated groups within the State.” No proposition of law is more firmly settled than that the federal court should not assume, in advance of decision by-the state court of last resort, that that court will place such a construction upon a statute as will render it obnoxious to the Federal Constitution. Utah Power & Light Co. v. Pfost, 286 U.S. 165, 186, 52 S.Ct. 548, 76 L.Ed. 1038; Arizona Copper Co. v. Hammer, 250 U.S. 400, 430, 39 S.Ct. 553, 63 L.Ed. 1058; Pelton v. Commercial National Bank, 101 U.S. 143, 25 L.Ed. 901. Indeed an authoritative construction of the provision of the Louisiana Constitution by the Supreme Court of that State would be necessary before a three-judge district court could proceed with a suit to enjoin its enforcement and execution as viola-tive of the Constitution of the United States. Shipman v. DuPre, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877; cf. 28 U.S.C. § 2284(5).
What does the Louisiana Constitution mean when it says that “Separate free public schools shall be maintained” ? Are not the “public schools” referred to the only kind that would be lawful and constitutional, that is those furnishing equal facilities? It seems to me that the majority of this Court must assume that the Supreme Court of Louisiana will not so construe the State Constitutional provision. The learned district judge, himself a distinguished Louisiana lawyer, assumed that the State Constitution would be given that reasonable construction of which it was susceptible so as not to be violative' of the Federal Constitution. I think the district, judge was right.
The majority say that our recent decision of Wichita Falls Junior College District v. Battle, 204 F.2d 632, 634, can be distinguished on the facts. There would be no point in my arguing about the facts of that case, for the law as there announced is directly applicable here, and that law is fully supported by the Supreme Court decisions cited. A quotation from that case leaves me nothing further to say:
“There is no necessity for deciding the constitutionality of any provision of Texas law in determining the fact issues which this case presents. Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114; Rescue Army v. Municipal Court, 331 U.S. 549, 568-574, 67 S. Ct. 1409, 91 L.Ed. 1666. In Sweatt v. Painter, supra, the issue, as here, related to the extent to which the Equal Protection Clause of the Fourteenth Amendment limits the power of a State to distinguish between students of different races in a State-supported educational institution, and in disposing of this issue the court expressly pointed out that it was eliminating from the case the question of constitutionality of the State law which restricts admission to the University of Texas to white students. Other decisions of the Supreme Court are in accord. McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149; Sipuel v. Board of Regents, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208. Therefore, the question for decision is merely whether the policies, usages and customs of the appellants actually do discriminate against the appellees on account of their race and color in violation of the aforesaid Equal Pro*813tection Clause. Such an issue is a factual one and obviously does not address itself to a three-judge court. Rescue Army v. Municipal Court, supra; Ex parte Bransford, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249; Ex parte Collins, 277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990; Beal v. Holcombe, 5 Cir., 193 F.2d 384.” Wichita Falls Junior College Dist. v. Battle, 204 F.2d 632, 634, 635.
I therefore, respectfully dissent.