(dissenting).
The majority opinion in this case furnishes, in my judgment, another instance where an appellate court is substituting its discretion for that which, under the law, belongs to the district judge. The law in such matters was, I think, correctly stated in Mitchell, Secretary, etc. v. Bland, etc., 5 Cir., 1957, 241 F.2d 808, 810-811:
“The nature of injunctive relief is that it is prospective, prophylactic, preventive, — not punitive. By bringing about a better attitude on appellant’s part towards the Act * * * the Court below was using its equity powers in consonance with their best traditions.
“The problem before the Court below did not involve litigation between two private individuals only; *27it related primarily to the business of the public, and the public interest was entitled to primary consideration.6 A labor controversy was presented to the Supreme Court in Virginian Railway Co. v. System Federation No. 40, Railway Employees, 1937, 300 U.S. 515, at page 552, 57 S.Ct. 592, at page 601, 81 L.Ed. 789, when it gave expression to this principle : ‘More is involved than the settlement of a private controversy without appreciable consequences to the public * * * Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved * * * ’
“The same ideas were expressed by the Supreme Court7 in dealing with the enforcement of the Emergency Price Control Act, 50 U.S.C.A. Appendix, § 901 et seq., in a case where the problem presented was quite similar to that before the Court in this case. Hecht involved a prayer for injunctive relief where a spot check of seven out of more than one hundred departments of a large store revealed four thousand five hundred violations of the law. After a full hearing, the District Judge8 denied injunction pursuant to its general equity powers: ‘In a case such as this an injunction should not issue unless thereby better compliance with law may be enforced * * * and in my judgment an injunction would not be in the public interest * * * ’ The Court of Appeals for the District of Columbia9 reversed on the theory that the District Judge had given too wide a sweep to traditional equity powers. The Supreme Court granted certiorari10 and reversed the action of the Court of Appeals approving what the District Court had done and using this language:
“ ‘We are dealing here with the requirements of equity practice with a background of several hundred years of history. * * * The historic injunctive process was designed to deter, not to punish. The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims. * * * ’ 321 U.S. at page 329, 64 S.Ct. at page 591.
“ ‘For the standards of the public interest not the requirements of private litigation measure the propriety and need for injunctive relief in these cases.’ 321 U.S. at page 331, 64 S.Ct. at page 592.
“The District Judge, having the long-term responsibility for the enforcement of this law and others like it in a large district in Texas, and being acquainted with local conditions and having observed appellant and the government agents as the contest before him unfolded, was in better position than we are to assess and solve this problem. We are not willing to set aside the discretion employed by him in fashioning his *28decree to serve the interest of the litigant and the public.”
I think that is a sound statement of the law and of public policy involved in the issuance or refusal of any injunction. I think it applies to the facts of the ease before us, and that we ought not, from our “ivory tower” far removed from the point where the human drama is enacted, to conclude that our judgment is better than that of the district judge, exercising a discretion which resides in him. I, therefore, respectfully dissent.
"6. ‘The history of equity jurisdiction is the history of regard for public consequences in employing the extraordinary remedy of the injunction. * * * ’ Railroad Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971.
“7. Hecht Co. v. Bowles, 1944, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754.
“8. Brown v. Hecht Co., D.C., 49 E.Supp. 528, 532.
“9. Brown v. Hecht Co., 1943, 78 U.S.App. D.C. 98, 137 F.2d 689.
“10. 320 U.S. 727, 64 S.Ct. 81, 88 L.Ed. 429.”