(dissenting).
This case comes before us on a motion for a stay of that portion of a decree wherein the Board of Education of New Rochelle is “ordered to present to this Court [Irving R. Kaufman, D. /.], on or before April 14, 1961, a plan for desegregation1 in accordance with this [his] Opinion * * *.” An appeal “from the judgment entered in this action on January 24, 1961” (the date judgment was entered by the Clerk upon the trial •court’s opinion which was to constitute the court’s findings of fact and conclusions of law) is now pending in this court and representations have been made that it can be heard at a comparatively early •date. Upon oral argument of the motion, the court on its own motion raised the question of appealability; the parties themselves initially did not present this issue either by motion or on argument. How the panel of this court which might have heard the appeal would have ruled on the question of appealability is academic because by the decision of the majority of this panel, they will not have that opportunity. I would have deferred to them and let them have the privilege of deciding whether they should hear and decide on the merits. However, having to face this question now, I am of the opinion that an appeal may properly be taken from the judgment as entered.
The complaint, charging maintenance of “a racially segregated public elementary school,” “ghettos,” “minority racial groups,” and denial of “due process” and “equal protection,” seeks injunctive relief, both affirmative and negative, against the Board :
A. Declaring illegal and unconstitutional the .City’s “neighborhood school” policy (whereby children attend the school in the area of their residence);
B. Enjoining attendance in a “racially segregated” school;
C. Requiring registration in a “racially integrated” school;
D. Enjoining the construction of a public school approved for construction; and
E. Enjoining prosecution of an action commenced by the defendants.
The character of the action as an injunction proceeding was clearly established by the allegations and the relief sought. A trial was held and a judgment was entered. The trial court throughout its opinion referred to the injunctive relief sought, which was granted in both mandatory and prohibitory form.
Section 1292(a) (1) gives this court appellate jurisdiction over interlocutory orders “granting * * * injunctions.” As the majority concedes, the term “injunction” embraces an order commanding as well as prohibiting conduct. The decree (entered as a judgment) in my opinion definitely is within this category. The words are “the Board is hereby ordered to present to this Court * * * a plan for desegregation in accordance with this Opinion.” The majority say that if the order in effect prohibited the Board from reconstructing the Lincoln *607School, the order would be “clearly appealable.” Yet in the “Opinion” which is to serve as a guide for a Plan, the trial court has said, “this [the rebuilding] seems the one sure way to render certain continued segregation at Lincoln.” How can this statement, together with the finding that “it is most difficult to conceive of the rebuilding of the Lincoln School as good-faith compliance with an obligation to desegregate,” be reconciled with the thought that no injunction is intended. Here is virtually a pre-hearing judgment that any Plan which incorporates a rebuilding of the school on its present site will be inconsistent with the court’s conception of desegregation. My colleagues cannot seriously believe that these words are not words of restraint and should not be regarded as an injunctive deterrent from building a new school. No Board would spend thousands of dollars for a new school only to be directed eventually to tear it down and build it elsewhere.
The mandatory provisions of the judgment are both direct and implied. If “the presence of some 29 white children certainly does not afford the 454 Negro children in the school the education and social contacts and interaction envisioned by Brown,” how many additional white children will be required to accomplish this result? 2 And where will they come from? The trial court does not “conceive it to be the court’s function to interfere with the mechanics of the operation of the New Rochelle school system,” and “did not strike down the neighborhood school policy,” but found it to be “valid only insofar as it is operated within the confines established by the Constitution.” Yet the Board must submit an acceptable Plan in the light of the Court’s Opinion to “avoid that very eventuality,” namely, “the Court’s taking over the running of the New Rochelle school system.”
Reference to these situations is made only because I believe that they relate to the injunctive character of the judgment. It is this character which determines appealability — the only question now being considered. The merits must be considered later upon hearings in which it would appear that the Lincoln School and the Negro pupils will not be alone. Already notice has been served that “the Ward School is predominently [sic] Jewish and the Columbus School predominently [sic] Italian in the composition of the student bodies.” The parents of the children “desire that action be brought to desegregate3 both schools.” Warning is given that “if plans are made to correct the situation existing in the Lincoln School, brought about by the neighborhood school concept, that such, plans also bear in mind the religious and other inbalances [sic] also existing.”' When all the racial, religious and “other inbalances” have been thoroughly aired, although premature at this time, the hope is expressed that somehow the American philosophy that constitutional rights are the vested heritage of all our citizens and are not the exclusive property of any racial or religious group to be used for their own particular interests may find its way into the Plan — even if only in a footnote.4
Because I believe that the statute permits an appeal from this injunctive judgment, I would grant the stay, and I dissent from the dismissal of the appeal.
. The schools of New Rochelle have never been on a segregated basis in the sense that any Negro pupil has been denied admission to any school by reason of being a member of the Negro race and as the term is used in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, and related cases. All the schools had Negro pupils in their student bodies.
. How can any court be sure tbat mere numbers can effect these assumed advantages?
. Here the word is used to indicate a predominant percentage of any race— quite a different meaning from that intended in the true “desegregation” cases.
. Evei'y assurance of this approach is given in the two well-reasoned opinions below. My dissent is based solely upon the belief that under the law the judgment entered in this case granting the relief specified therein is appealable.