J. SKELLY WRIGHT, Circuit Judge.
In these proceedings Negro parents, individually and on behalf of their minor children, charge racial discrimination by the Superintendent of Schools and the Board of Education of the District of Columbia in the administration of public schools in the District. Plaintiffs allege that these defendants are not only violating the due process and equal protection clauses of the Constitution, but are also failing to comply with the decision of the Supreme Court in Bolling v. Sharpe, 347 U.S. 497, 500, 74 S. Ct. 693, 695, 98 L. Ed. 884 (1954), "that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution." Plaintiffs allege that these racial discriminations by the defendant school superintendent and school board members not only deprive them of educational opportunities equal to those provided white students in the public schools in Washington, but also "foster and encourage the juvenile delinquency of the infant plaintiffs and their classes."
The racial discrimination is alleged to be effected through the use of a so-called "track system," by gerrymandering school districts, and by utilizing public revenues to improve public schools with predominantly white pupil populations. The complaint also alleges that Negro school teachers and Negro administrative personnel are discriminated against by the defendant school superintendent and board members in work assignments and promotions.
The complaint charges that school board members and the school superintendent are holding their offices illegally, being appointed by the judges of the United States District Court for the District of Columbia pursuant to Title 31, District of Columbia Code, Section 101, which statute is said to be unconstitutional in that it places executive power and duties in the judicial branch of the government. Plaintiffs ask that a three-judge district court be convened, as required by 28 U.S.C. § 2284, to hear and determine this action and to issue a permanent injunction restraining the judicial defendants from enforcing 31 D.C.CODE § 101, and restraining the defendant board members and superintendent of schools from discriminating against Negro children and teachers in the administration of the public schools in the District of Columbia. The question as to the necessity for a three-judge court convened pursuant to 28 U.S.C. § 2284 to hear this case is before this court at this time by reason of plaintiffs' motion for summary judgment and defendants' motion to dismiss.
28 U.S.C. § 2282 provides: "An interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States shall not be granted by any district court or judge thereof unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title." Since the complaint in this case alleges the unconstitutionality of an Act of Congress and prays for a permanent injunction restraining its enforcement, a literal interpretation of 28 U.S.C. § 2282 would require the convening of a three-judge district court. In interpreting the need for such a court, however, the Supreme Court, in Bailey v. Patterson, 369 U.S. 31, 33, 82 S. Ct. 549, 551, 7 L. Ed. 2d 512 (1962), has held that such a court is not required "when the claim that a statute is unconstitutional is wholly insubstantial, legally speaking nonexistent," nor when "prior decisions make frivolous any claim" that the statute is constitutional. In short, if the claim of constitutionality or unconstitutionality is frivolous, a three-judge district court is not required.
The parties, at this stage of the proceedings, agree that the question as to the constitutionality of 31 D.C.CODE § 101 is "wholly insubstantial" and frivolous and that a three-judge district court is not required. But plaintiffs in their motion for summary judgment argue that the statute is patently unconstitutional, while the defendants in their motion to dismiss argue precisely the reverse.
Plaintiffs predicate their claim of unconstitutionality of the statute on Article II, Section 2, Clause 2 of the Constitution of the United States which reads, in pertinent part: "but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." They point to the language in Ex parte Hennen, 38 U.S. (13 Pet.) 230, 257-258, 10 L. Ed. 138 (1839), upholding under this clause of the Constitution the appointment of clerks of court by courts of law:
"* * * The appointing power here designated, in the latter part of the section was no doubt intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged. The appointment of clerks of Courts properly belongs to the Courts of law; and that a clerk is one of the inferior officers contemplated by this provision in the Constitution cannot be questioned. * * *"
Plaintiffs also cite Ex parte Siebold, 100 U.S. (10 Otto) 371, 25 L. Ed. 717 (1879), and Rice v. Ames, 180 U.S. 371, 21 S. Ct. 406, 45 L. Ed. 577 (1901), as supporting their position that this clause limits court appointments to inferior officers whose duties are related to the judicial function. Plaintiffs also rely on O'Donoghue v. United States, 289 U.S. 516, 53 S. Ct. 740, 77 L. Ed. 1356 (1933), which, in holding that the courts in the District of Columbia were Article III as well as Article I courts, stated:
"It is important to bear constantly in mind that the District was made up of portions of two of the original states of the Union, and was not taken out of the Union by the cession. Prior thereto its inhabitants were entitled to all the rights, guaranties, and immunities of the Constitution, among which was the right to have their cases arising under the Constitution heard and determined by federal courts created under, and vested with the judicial power conferred by, Art. III. We think it is not reasonable to assume that the cession stripped them of these rights, and that it was intended that at the very seat of the national government the people should be less fortified by the guaranty of an independent judiciary than in other parts of the Union." 289 U.S. at 540, 53 S. Ct. at 746.