The opinion
On Petition for Rehearing.
TUTTLE, Circuit Judge.
The petition for rehearing is DENIED. Since it appears from appellant’s petition for rehearing, citing the two Supreme Court cases most recently applying the principle of federal court abstention from ruling on the constitutionality of, or construing, state laws until they are interpreted by the state courts, Louisiana Power & Light Co. v. City of Thi-bodaux, 79 S.Ct. 1070 , and Harrison v. National Association for the Advancement of Colored People, 79 S.Ct. 1025 , that it does not understand the basis of our decision, we shall attempt to make more clear what was decided in the short per curiam opinion.
Nothing in either of these cases touches upon the issue before us. No cause for abstention by the federal court is shown merely because a suit is brought against state officials whose conduct may be affected by untested state legislation. It is only when the federal court is called on to interpret such state statute or rule on its constitutionality that the rule applies.
In the first of these two cases the trial court was called upon to construe a Louisiana statute. The entire issue before the district court was to be resolved by such construction. In the Harrison case the suit before the three-judge federal court was for the purpose of attacking the constitutionality of the Virginia statute, which had not been construed by the Virginia courts. The court pointed out that the state court construction of it might obviate the necessity for the federal court to make a decision as to its constitutionality.
Here, it has been held repeatedly that the appellant School Board cannot legally continue to operate the public schools confided to its management on a racially segregated basis. No statute of the State of Louisiana can make such management of the schools legally permissible. It makes no difference how the state laws may be changed in order to *81 take away from the Board the power to change the operation of the schools to a non-segregated basis. The Board still cannot operate them illegally. The plaintiffs, under long recognized principles, enunciated by us in Orleans Parish School Board v. Bush, 5 Cir., 242 F.2d 156 , can, by injunction, prevent the operating agency from acting on behalf of the state in an illegal manner to their injury. Thus, this Board is still the only proper party to be enjoined and it is subject to injunction even though the state in its wisdom might see fit to deprive it of the power to operate legally.
We do not reach any question of construction of the state laws at all, once it is determined that this defendant is the agency engaged in the operation that has now been held to be illegal as to these plaintiffs. No conceivable construction of the state statute can affect this result in the slightest degree. Moreover, it must be borne in mind that this is not a diversity action, but it is an action brought by citizens of the State of Louisiana by virtue of a federal law giving the district court jurisdiction to entertain such a suit. There was no basis for the trial court to abstain from proceeding to a final decision and order in the case, and no basis for us to remand it for a stay.