United States v. Tunica County School District, and the State of Mississippi, J. W. Driver v. Tunica County School District

440 F.2d 377 UNITED STATES of America, Plaintiff-Appellee, v. TUNICA COUNTY SCHOOL DISTRICT et al., Defendants-Appellants, and The State of Mississippi et al., Defendants-Appellants. J. W. DRIVER et al., Plaintiffs-Appellees, v. TUNICA COUNTY SCHOOL DISTRICT et al., Defendants-Appellants. No. 30580. United States Court of Appeals, Fifth Circuit. March 23, 1971. Rehearing Denied and Rehearing En Banc Denied April 19, 1971. Appeals from the United States District Court for the Northern District of Mississippi; William C. Keady, Chief Judge. — 1 — John W. Dulaney, Jr., Tunica, Miss., for Tunica. — 2 — William A. Allain, James Rankin, Asst. Attys. Gen. of Miss., A. F. Summer, Atty. Gen. of Miss., Ed Davis Noble, Jr., Sp. Asst. Atty. Gen. of Miss., for the State. — 3 — H. M. Ray, U. S. Atty., Oxford, Miss., Ben Krage, Civil Rights Div., Jerris Leonard, Asst. Atty. Gen., Brian K. Landsberg, Atty., Hugh W. Fleischer, Daniel F. Rinzel, U. S. Dept. of Justice, Washington, D. C., for United States. — 4 — Robert J. Kelly, Batesville, Miss., for J. W. Driver. — 5 — Before GEWIN, BELL, and ALDISERT*, Circuit Judges. PER CURIAM: — 6 — The opinion of the district court in this matter is reported. United States of America v. Tunica County School District, N.D. Miss., 1970, 323 F.Supp. 1019. We affirm for the reasons set forth therein. We note that the question and manner of recovering the salaries which were wrongfully paid to the resigning teachers will require further handling on the part of the district court. Our affirmance in no wise restricts the discretion of the district court in the matter of the recovery and as to the questions which will be attendant thereto. — 7 — Affirmed. GEWIN, Circuit Judge (concurring specially): — 8 — I concur in the decision affirming the District Court. My concurrence, however, is with the distinct understanding that we leave open for appropriate disposition by the District Court, under the equitable powers of that Court, both the amount and manner of repayment of funds improperly authorized by the School Board as payment under an alleged contractual obligation to those teachers who resigned. ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC PER CURIAM: — 9 — The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied. Footnotes [1] Notes: [-s] * Of the Third Circuit, setting by designation