¶1(concurring in part and dissenting in part).
¶2It is to be regretted that the members «of this three-judge Court are not in agreement. In a general way, the order to be filed herein at the time that the separate opinions of the members of this Court are filed will correctly state the differences existing among the members of the Court. As will be seen by what shall follow, I am in disagreement with my colleagues on the main issues in this case.
¶3This action was originally brought by eighteen negro plaintiffs, former school teachers, against the defendants, the Superintendent and Board of Trustees of School District No. 7, Orangeburg County, South Carolina, in which Elloree Training School is situate. As stated in plaintiffs’ brief, the purpose of the action is tó enjoin the defendants from “(1) refusing to continue plaintiffs’ employment as school teachers solely because of their membership in the National Association for the Advancement of Colored People; (2) requiring plaintiffs to supply information concerning their beliefs and associations particularly with respect to membership in said association as a condition of continued employment; (3) refusing to continue plaintiffs’ employment because they have refused to disclose whether or not they are members of said association.” (Emphasis added). Plaintiffs’ case is based on the allegation that defendants acted in derogation of their rights under an unconstitutional State statute; and, upon that allegation, a court of three judges was convened pursuant to 28 U.S.C.A. §§ 2281 and 2284. When the cause came on for hearing, the Court was informed that the plaintiff Carmichael had withdrawn from the case.
¶4Plaintiffs allege that defendants deprived them of constitutional rights in the enforcement of the State statute. See Act No. 741, Acts and Joint Resolutions of the General Assembly of South Carolina, 1956, 49 St. at Large, p. 1747. Plaintiffs claim that this statute is unconstitutional, in that defendants (a) required them to file written applications for employment, and (b) refused to reemploy them as school teachers when they failed to complete and file applications for employment on required forms. By their answer, defendants admit that plaintiffs were not re-employed because they failed to file completed application forms. They deny that plaintiffs had a legal right to be employed as teachers; that there was anything wrongful in their failure to re-employ plaintiffs; or that they in any way acted in the enforcement of the cited State statute.
¶5I agree that “[tjhere is no dispute as to the facts.” And such being the case, it is essential that all of the established and uncontradicted facts be considered, and that those “facts” which are the product of guess or surmise be eliminated.
¶6*575' Prior to the school year 1956-1957, all of the plaintiffs had been employed as school teachers in the Elloree Training School. They had no tenure. All teacher contracts were entered into between the teachers and the school officials for terms of nine or ten months (a single school year), terminating at the close of each term. The practice in the School District, one adopted many years prior to the enactment of the challenged State statute, was for applicants for employment or re-employment as teachers to submit written applications to the Superintendent of Schools in the District. Prior to May, 1955, an application was not required to be in any prescribed form and was usually a letter addressed to the Superintendent. In May, 1955, however, defendants instituted the practice of providing applicants with printed forms for use in making applications. These forms contained a variety of questions to be answered by applicants pertaining to the applicant’s personal as well as professional qualifications. For the school term 1955-1956, all applicants, including plaintiffs, completed such forms and submitted them to the Superintendent. From the applications submitted, defendants selected plaintiffs and others for employment for the school term 1955-1956. For the 1956-1957 school term defendants continued providing a form application for employment as teacher to any person requesting one. In essential detail the form used in 1956-1957 was identical' with the form used in 1955-1956. Some of the plaintiffs submitted incomplete applications which the Superintendent returned to them for completion and filing. The plaintiffs never thereafter filed applications for employment, whether completed or not and, consequently, plaintiffs were not considered by the defendant-trustees as applicants. Some of the plaintiffs submitted so-called “resignations”. Others were not heard from again. Thereafter, all teaching positions at the Elloree Training School for the current school term were filled front among other negroes who did apply for such employment. It is now proposed, as one may reasonably surmise from all that has been said, that plaintiffs wish the Court to turn the clock back to May, 1956, and enjoin the defendants from refusing to consider plaintiffs as applicants for teacher jobs.
¶7As no plaintiff occupied the status of employee of the School District for the 1956-1957 school term, having entered into no contract for that term, the mentioned “resignations” were idle gestures. If they served any purpose at all, it was to inform defendants that the so-called resigners were not seeking re-employment.
¶8The evidence or, strictly speaking, the lack of it, leaves in doubt which of the questions on the application form plaintiffs were unwilling to answer. A form application, which defendants admit is genuine, is attached to the complaint, but the applications submitted by plaintiffs and which were returned to them for completion were not offered in evidence, although the plaintiffs presumably had possession of them. The only testimony having any possible bearing on the questions that plaintiffs were unwilling to answer was supplied by the plaintiff Davis, who, presuming to speak for the others, stated that plaintiffs objected to answering all questions on the form other than those asking for “professional information”. Viewing the agreed form attached to the complaint in the light of this statement, it would appear that plaintiffs at least left the following questions unanswered:
“Religious preference - Are you a member? - If so, state church of which you are a member - List any clubs, organizations, or fraternities to which you belong-Do you belong to the NAACP ? - Does any member of your immediate family belong to the NAACP?' -• Do you support the NAACP in any way (money or attendance at meetings) ? - Do you favor integration of races in schools? ' - Are you satisfied *576with your work and the schools as they are now maintained? Yes-No • — -. If yes, comment on back. Do you feel that you would be happy in an integrated school system, knowing that the parents and students do not favor this system? Yes - No —- (Check one and give reason for your answer) -
Do you feel that an integrated school system would better fit the colored race for their life’s work? Yes • — - No - (check one and give reason for your answer) -
Do you think that you are qualified to teach an integrated class in a satisfactory manner? Yes- No - (check one and give reason for your answer) -- Do you feel that the parents of your school know that no public schools will be operated if they are integrated? Yes - No - Do you believe in the aims of the NAACP? - If you should join the NAACP while employed in this school, please notify the superintendent and chairman of the board of trustees. Yes -- No —
Do you desire a position in the Elloree Training School for the 1956-1957 session?”
¶9Plaintiffs contend that defendants’ refusal to accept their incomplete applications for employment denied them rights, privileges, immunities, due process of law and the equal protection of the laws secured by the Fourteenth Amendment of the Constitution, and that the challenged statute, as to them, constitute a bill of attainder proscribed by Article I, Section 10, Clause 1 of the Constitution.
¶10The record in-this case does not bear out the assumption that defendants acted under the challenged statute. Hence the issue of the statute’s constitutionality is not properly before the Court. Section 1 of the statute makes unlawful the employment of a member of the National Association for the Advancement of Colored People by a school district, and further provides that the prohibition against such employment shall continue so long as membership in such organization is maintained. There is an utter failure of evidence that plaintiffs were refused employment because of membership in any organization. Indeed, so far as the record discloses, only the plaintiff Fulton is in fact a. member of the NAACP, and she testified that she never told any of the defendants that she was a member; and there is no evidence that any of the defendants otherwise knew that she was a member. Hence, it is ridiculous to say that defendants were enforcing Section 1 of the statute in refusing to employ plaintiffs as teachers. The best that can be said of this frivolous contention is that one might, if he was so disposed, surmise that defendants would have denied plaintiffs employment if the essential facts upon which to rest such action had existed elsewhere than in the imaginations of the plaintiffs.
¶11Section 2 of the statute reads as follows :
“Section 2. The board of trustees of any public school or State supported college shall be authorized to demand of any teacher or other employee of the school, who is suspected of being a member of the National Association for the Advancement of Colored People, that he submit to the board a written statement under oath setting forth whether or not he is a member of the National Association for the Advancement of Colored People, and the immediate employer of any employee of the State or of any county or municipality thereof is similarly authorized in the case any employee is suspected of being a member of the National Association for the Advancement of Colored People. Any person refusing to submit a statement as provided herein, shall be summarily dismissed.” (Emphasis added)
¶12■ It is apparent that section 2 applies only to employees, not to one who wants to be an employee, and the penalty au*577thorized by the section is dismissal. The section, therefore, could have had no application to plaintiffs. No plaintiff was an “employee” of the Elloree Training School for the 1956-1957 school term with which we are here concerned; and no plaintiff was “dismissed”. They simply declined to become applicants for employment, and, in consequence of their failure to do so they were not employed. It is a distortion to classify plaintiffs as “employees”. They were not employees at any time here relevant; and the ipse dixit of this Court cannot make them such. The practice of defendants in providing form applications for the use of those desiring employment as teachers for the 1956-1957 school term was nothing more than a continuation of the previous year’s practice, which was not objected to by plaintiffs then. To say now mat defendants adopted the application form as a means to the enforcement of the challenged statute would be to deal carelessly with the truth. It is an unchallenged fact that the adoption of the application form antedated the statute by ten months. Thus there is a total failure of evidence to support the jurisdiction of this Court.
¶13Section 2281, Title 28 U.S.C.A., is as follows:
“An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.” (Emphasis added)
¶14As pointed out, plaintiffs were not in such a position that the defendants could have enforced the statute against them had they wanted to do so. The cited jurisdictional section does not give,' nor was it intended to give, this Court jurisdiction to pass upon the constitutionality of a State statute simply because some person here, or elsewhere, might be dissatisfied with its terms. Before a person can properly invoke the jurisdiction of a three-judge Court to hear an attack on the constitutionality of State statute, such person must not only allege, he must prove that the statute has been wrongfully enforced against him to his detriment, or that there is an impending threat to enforce it against him to his detriment. Otherwise, he has no right to vindicate and no interest to protect. Moreover, to claim the protection of a court of equity, a person must allege and prove that no legal remedy is available to him and that he will suffer irreparable injury if a court of equity does not grant relief.
¶15As has been pointed out, on the authority of Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 404, 5 L.Ed. 257, “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” We are here concerned with the last of the two propositions; and I must decline to become a party to usurping power which this Court legally does not have. I also must refuse to classify the issues of the instant case as falling within the comprehension of the constitutional guarantees of the freedoms of speech and assembly, as claimed by plaintiffs. No plaintiff has testified in this case that the defendants have denied him or any of the others the right of free speech, or the right of free assembly; nor has any other witness done so. This Court, therefore, is without evidence of a denial of the rights of free speech and of free assembly; and clearly it has no right by tortuous deductions or unfounded assumptions to supply a seeming basis for such an issue.
¶16The real issue in this case is whether or not public school authorities,' acting on their own-initiative, are constitution*578ally forbidden to inquire of applicants for teaching positions concerning their associations and beliefs. This case in many respects is similar to Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 720, 71 S.Ct. 909, 912, 95 L.Ed. 1317, where one of the issues before the Court was stated, as follows :
"1. The affidavit raises the issue whether the City of Los Angeles is constitutionally forbidden to require that its employees disclose their past or present membership in the Communist Party or the Communist Political Association. Not before us is the question whether the city may determine that an employee’s disclosure of such political affiliation justifies his discharge.”
¶17Because of the admitted factual background of the instant ease, there could not have arisen the issue of what the Court would do if defendants had in fact discharged plaintiffs because of membership in the NAACP. To the knowledge of defendants no plaintiff was a member and, therefore, no one of them could have been discharged for that reason.
¶18The answer to the stated issue was given by the Court as follows:
“We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service. Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust. Both are • commonly inquired into in determining fitness for both high and low positions in private industry and are not less relevant in publid employment. The affidavit requirement is valid.” 341 U.S. at page 720, 71 S.Ct. at page 912.
¶19This position was reaffirmed in Adler v. Board of Education of City of New York, 342 U.S. 485, 493, 72 S.Ct. 380, 385, 96 L.Ed. 517, a case even more closely in point than the Garner case. There the Court said:
“We adhere to that case [Garner v. Board of Public Works of City of Los Angeles, supra], A teacher works in a sensitive area in a school room. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern. It must preserve the integrity of the schools. That the school authorities have the right and duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted. One’s associates, past and present, as well as one’s conduct, may properly be considered in determining fitness and loyalty. From time immemorial, one’s reputation has been determined in part by the company he keeps. In the employment of officials and teachers of the school system, the state may very properly inquire into the company they keep, and we know of no rule, constitutional or otherwise, that prevents the state, when determining the fitness and loyalty of such persons, from considering the organizations and persons with whom they associate.”
¶20The Garner and Adler cases cannot be distinguished in principle from the instant case. Indeed, the present case is much stronger for the defendants than are the two cited cases, where employees were dismissed because of their failure to answer inquiries. Here, not only were plaintiffs not employed by defendants, they even refused to file applications for employment, because, as they say, it was none of the school trustees’ business who their associates were; what their religious beliefs and affiliations were; to what organizations or societies they belonged; what their views on integration were and how they thought it would affect negro children *579to be taught in an integrated school; what they thought of their own fitness to teach in an integrated school, etc. These and other considerations, which normal parents and competent school officials regard as of prime importance to school children, are taboo to plaintiffs. They and their abettors are now asking this Court to write that taboo into the federal Constitution. I know of no law that requires the defendants to select teachers with closed eyes and stuffed ears, ignorant of all but the most technical educational attainments of applicants. Hence I fail to see that plaintiffs have been deprived of any right, constitutional or other, by the defendants.
¶21The inapplicability of the State statute makes it unnecessary to pass.upon its constitutionality, but since that issue is discussed in another opinion, I deem it proper to state my views on it. I do not agree that the statute is unconstitutional. It is argued that the legislative findings of fact contained in the preamble of the challenged statute should be peremptorily dismissed as containing no specific finding that the purpose of the NAACP is “to overthrow the government by force and violence or to engage in any other form of criminal conduct.” The plain meaning of that contention is that school trustees have no discretion in the selection of teachers except the discretion to refuse to select as teachers those who seek the overthrow of the government by force and violence, or who fall within the category of criminals.
¶22Since one of the legislative findings is that “The National Association for the Advancement of Colored People has, through its program and leaders in the State of South Carolina, disturbed the peace and tranquility which has long existed between the White and Negro races, and has threatened the progress and increased understanding between Negros and Whites”, what the plaintiffs’ contention really means is, that a State has no legislative power to preserve peace among its citizen's or to promote, foster and protect the tranquility that has long existed between the White and Negro races within its borders; 'that the State’s attempt to do any of these things is unconstitutional. In the light of the other legislative findings, it also means that a state cannot rule out of its schools teachers who would sow the seed of discord and unrest, which if unimpeded, would blossom into outright ■strife. It also means that a state cannot keep out of its schools teachers who falsely represent the existence of a disparity in educational advantages among the races that in fact does not exist, and who would subject school children to teachings that are untrue. It also means that a supposedly sovéreign state cannot keep out of its schools teachers who would falsely represent conditions of economic and social strangulation to exist, which in fact do not exist. The concluding finding in the statute is that the NAACP “ … is so insidious in its propaganda and the fostering of those ideas designed to produce a constant state of turmoil between the races, that membership in such an organization is wholly incompatible with the peace, tranquility and progress that all citizens have a right to enjoy.” This brings us face to face with matters of serious consequence. We must either conclude that the legislative findings, uncontradicted by any evidence, are untrue, or that the considerations mentioned in the findings are of no legal concern to the people of a state affected thereby, and that any attempt by a state to protect school children from the evil consequences denounced by the statute would be unconstitutional. Such political philosophies presuppose that state governments are the enemies of its citizens. That, to say the least of it, is an un-American concept.
¶23Plaintiffs have not undertaken to disprove the Legislative findings of fact contained in the challenged statute. Hence, I hold, on the authority of the below cited cases, that such findings of fact are conclusive. See: Block v. *580Hirsh, 256 U.S. 135, 154, 155, 41 S.Ct. 458, 65 L.Ed. 865; Radice v. People of State of New York, 264 U.S. 292, 294-295, 44 S.Ct. 325, 68 L.Ed. 690; Zahn v. Board of Public Works, 274 U.S. 325, 328, 47 S.Ct. 594, 71 L.Ed. 1074; Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U.S. 183, 195-196, 57 S.Ct. 139, 81 L.Ed. 109; United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234; Chesebro v. Los Angeles County Flood Control District, 306 U.S. 459, 463, 59 S.Ct. 622, 83 L.Ed. 921; Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 99 L.Ed. 27.
¶24Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317, cited herein on another point, supports the validity of the State statute. In it at pages 720, 721 of 341 U.S. at page 913 of 71 S.Ct., the Court said:
“ … We assume that under the Federal Constitution the Charter amendment is valid to the extent that it bars from the city’s public service persons who, subsequent to its adoption in 1941, advise, advocate, or teach the violent overthrow of the Government or who are or become affiliated with any group doing so. The provisions operating thus prospectively were a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty to the State and the United States. Cf. Gerende v. Board of Supervisors of Elections, 1951, 341 U.S. 56, 71 , S.Ct. 565 [95 L.Ed. 745]. Likewise,' as a regulation of political activity of municipal employees, the amendment was reasonably designed to protect the integrity and competency of the service. This Court has held that Congress may reasonably restrict the political activity of federal civil service employees for such a purpose, United Public Workers [of America (C.I.O.)] v. Mitchell, 1947, 330 U.S. 75, 102-103, 67 S.Ct. 556, 570, 571, 91 L.Ed. 754, and a State is not without power to do as much.”
¶25In Adler v. Board of Education of City of New York, supra, The Supreme Court upheld a New York statute and rules promulgated thereunder. The statute made persons associated with organizations found to be subversive prima facie ineligible for employment in public schools. The statute made provision for administrative and judicial review for persons adversely affected before any denial of employment or discharge became effective. The Court said, 342 U.S. at pages 491-492, 72 S.Ct. at page 384:
“It is first argued that the Feinberg Law [Education Law, McK. Consol.Laws, c. 16, § 3022 et seq.] and the rules promulgated thereunder constitute an abridgment of the freedom of speech and assembly of persons employed or seeking employment in the public schools of the State of New York.
“It is clear that such persons have the right under our law to assemble, speak, think and believe as they will. American Communications Ass’n [C.I.O.] v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925. It is equally clear that they have no right to work for the State in the school system on their own terms. United Public Workers [of America (C.I. O.)] v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L.Ed. 754. They may work for the school system upon the reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not. Such persons are or may be denied, under the statutes in question, the .privilege of working for *581the school system of the State of New York because, first, of their advocacy of the overthrow of the government by force or violence, or, secondly, by unexplained membership in an organization found by the school authorities, after notice and hearing, to teach and advocate the overthrow of the government by force or violence, and known by such persons to have such purpose.”
¶26The State statute that is here assailed does not deprive anyone of the right to belong to the NAACP. It simply prohibits the employment of persons as teachers only so long as they retain membership in the NAACP. Moreover, it operates only prospectively; it places no stigma on past membership in the NAACP. One who is a member may terminate his membership and become eligible for public employment. So also he may assemble with others of like mind and even condemn the statute, as plaintiffs are doing in this case. No penalty attaches to such action.
¶27Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, cited in a rival opinion, has no application to the present case. There, the Court struck down a State statute which barred from public employment persons who had ever belonged to an organization listed by the Attorney General of. the United States as subversive. The rationale of that decision is thus stated by the Court, 344 U.S. 190, 73 S.Ct. 218:
“But membership may be innocent. A state servant may have joined a proscribed organization unaware of its activities and purposes. In recent years, many completely loyal persons have severed organizational ties after learning for the first time of the character of groups to which they had belonged. ‘They had joined, [but] did not know what it was; they were good, fine young men and women, loyal Americans, but they had been trapped into it— because one of the great weaknesses of all Americans, whether adult or youth, is to join something.’ At the time of affiliation, a group itself may be innocent, only later coming under the influence of those who would turn it toward illegitimate ends. Conversely, an organization formerly subversive and therefore designated as such may have subsequently freed itself from the influences which originally led to its listing.”
¶28In the Wieman case, the statute was struck down because it made past membership in an organization, irrespective of circumstances then or later existing, a bar to public employment. In the case at bar, the challenged statute makes only existing and continued membership a bar. Yet, the statute has no applicability to this case since no action was or could have been taken under it by the defendants against the plaintiffs.
¶29Nor can it be fairly said that Slochower v. Board of Higher Education of New York City, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, is applicable here. There, a professor employed at a publicly supported college was discharged because he invoked the Fifth Amendment against self-incrimination while testifying before a United States Senate investigating committee. The discharge was pursuant to a Charter provision of the City of New York. The provision was held unconstitutional after the Court concluded that the exercise of the privilege against self-incrimination was no indication of wrongdoing. Whether or not one agrees with the doctrine of the Slochower case, it has no applicability to the facts of this case.
¶30The statute before us is based upon unchallenged findings of fact by the State Legislature that clearly have a rational basis. Indeed, if the statute has any bearing on constitutional liberties, it protects rather than limits them. The statute is designed to protect young minds from the poisonous effects of NAACP propaganda. It does not, as is *582surmised, outlaw membership in the NAACP. Jt doesn’t even attempt to do so. It only prevents its members from carrying their programs into the classrooms of public schools, where it is deemed to be against the public interest to have them do so.
¶31There is nothing in the Federal Constitution that denies a state the right to deal legislatively with its own local and domestic problems. The Tenth Amendment too often ignored in recent years, plainly and clearly declares that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It is equally plain and clear that the power to dictate the terms upon which public schools may be operated by the states was not by the Constitution delegated to the United States or to its judges. It is also equally clear that there is nothing in the Constitution ■which denies to the states respectively 'the power to completely control their established public schools so long as equality of treatment is accorded to the races. And further, there is nothing in the Constitution which says that the equal treatment, required by the Constitution, is itself discrimination and is, therefore, unequal treatment.
¶32It is agreed that no more important duty is imposed upon the Courts than to protect the fundamental rights of all citizens against impairment by the exercise of usurped governmental power. Article VI of the Constitution provides 'that the Constitution (and this includes the Tenth Amendment), and laws made pursuant thereto, shall be the supreme law of the land; and it binds every judge by oath or affirmation to support the Constitution in, all its provisions, even, as I apprehend, against other judges who would usurp the power to change the Constitution or to enact laws by edict to be by them enforced by the coercive misüáe of the ancient writ' of injunction.
¶33While the purpose of this case, in a sense, is camouflaged, it is not too well hidden. It is to secure this Court’s approval of the exercise of a veto power over state legislation dealing with purely local matters. If such is not the aim of this case, why should sixteen plaintiffs, professedly non-members of the NAACP, be lending their names for use in a court battle to install NAACP members or agents in the public schools of ■the State? The Bible has been ruled out of the public schools. People of State of Illinois ex rel. McCollum v. .Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649. The fight here is to rule NAACP’s theories of knowledge into them. If that is done, the government or its judges would thereby become invaders of the homes of citizens, superceding the authority and interest of parents in the rearing and ■training of their children. Knowing the inherent, danger in such a vicious procedure, I unhesitatingly register my opposition to it; and may God protect the children of America if the Courts will not and their parents cannot do so.
¶34I conclude: (a) That the undisputed facts of this case, unattended by specious assumptions, clearly warrant the dismissal of the complaint and the entry •of judgment for the defendants; (b) That the established facts of this case show that there exists no basis for the exercise of the jurisdiction of a three-judge district court and, for such reason, this Court should be dissolved and the case should be restored to the District Court’s regular calendar; and (c) That, failing in agreement as to either (a) or (b) above stated, proceedings herein should be stayed pending state court construction of the challenged statute and determination as to its constitutionality.