Barry W. Langford, Carl Kunert, Joseph R. Mulvihill v. James E. Barlow, Preston H. Dial, Jr., John L. Quinlan, III and Wayland A. Simmons , 417 F.2d 628 ( 1969 )

417 F.2d 628

Barry W. LANGFORD, Carl Kunert, Joseph R. Mulvihill, Appellants,
v.
James E. BARLOW, Preston H. Dial, Jr., John L. Quinlan, III
and Wayland A. Simmons, Appellees.

No. 26770.

United States Court of Appeals Fifth Circuit.

Sept. 19, 1969.

Clyde W. Woody, Marian S. Rosen, Woody & Rosen, Houston, Tex., for appellants.

Crawford C. Martin, Atty. Gen. of Texas, Nola White, First Asst. Atty. Gen., Hawthorne Phillips, Staff Legal Asst., Robert C. Flowers, Lonny F. Zwiener, Asst. Attys. Gen., Austin, Tex., James E. Barlow, Dist. Atty., Preston H. Dial, Jr., Asst. Dist. Atty., Bexar County, San Antonio, Tex., for appellees.

Before Judges THORNBERRY, MORGAN and CARSWELL, Circuit Judges.

PER CURIAM:

1

The District Court through Chief Judge Adrian Spears having certified to Chief Judge John R. Brown its conclusion that under intervening applicable cases,1 a three-Judge Court should be constituted and the Chief Judge having simultaneously, with the entry of this order, entered his order2 constituting a three-Judge Court, no good would be served now in hearing this appeal which raises primarily the question whether the District Court erred in declining to certify the case for a three-Judge Court. The judgment of the District Court heretofore entered on August 9, 1968 is therefore vacated and the cause is remanded to the District Court for trial and determination by a three-Judge Court as set forth in the order of the Chief Judge of this same date.

2

Vacated and remanded.

1

See Jackson v. Choate, 5 Cir., 1968, 404 F.2d 910; Jackson v. Department of Public Welfare of the State of Florida, S.D.Fla., 1968, 296 F.Supp. 1341; City of Gainesville, Georgia v. Southern Railway Company, N.D.Ga., 1969, 296 F.Supp. 763; Smith v. Ladner, S.D.Miss., 1966, 260 F.Supp. 918; Hargrave v. McKinney, M.D.Fla., 1969, 302 F.Supp. 1381

2

Copy is filed with this Court