(dissenting).
My brothers of the majority have spoken in such inaccurate and disapproving *340terms with reference to the opinion and order of the distinguished trial judge of the Northern District of Alabama who tried this case for several days, that I find it not only impossible to agree with them, but also necessary to write this dissent in order to inform those who may be interested of my opinion of the actual holding of the District Court. The cases cited by the majority condemn the opinion written by them. The opinion and order of the District Court considered together as they should be, destroy every reason asserted in the majority opinion for the unusual action taken in the circumstances of this case by the issuance of an injunction pending appeal on the merits.
It should be noted quickly that the majority opinion leaves little to be decided when the case reaches this court on the merits. Under the guise of “injunction pending appeal” that opinion substantially decides the case and renders moot many questions which could arise when the case reaches the court for final decision after a review of the record. It is recognized that injunctions pending appeal may be used in exceptional and extreme cases where there is a clear abuse of discretion or usurpation of judicial power. Such extreme, harsh and unusual action should never be taken as a substitute for a proper decision on the merits. The action in this case is taken without any pretense that the court has taken so much as a hurried glance at the record. There has not been sufficient time for the record to reach the court. In effect my brothers of the majority have concluded that this is an extreme and exceptional case, involving either an abuse of discretion or usurpation of judicial power. Accordingly, they have ordered the District Court to issue a “judgment and order” enjoining the Superintendent and Board of Education of Birmingham, and have directed “ * * * that the mandate issue forthwith.” This drastic action has been taken within a few days following the submission of the case on the motion for injunction — not on the merits. As late as June 3, 1963, the Supreme Court stated in Goss v. The Board of Education of the City of Knoxville, Tenn., 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632, a school segregation case, a recognition of:
“* * * the multifarious local difficulties and ‘variety of obstacles’ which might arise in this transition * # *»
and the court further stated:
“In reaching this result we are not unmindful of the deep-rooted problems involved.”
In the instant case, this court has not even had the opportunity to review the evidence which was before the trial judge for the purpose of considering any “variety of obstacles” or “deep-rooted problems” which may be involved. This court does not have sufficient facts before it, in the absence of the record, to render a decision “guided by equitable principles” and “characterized by a practical flexibility in shaping its remedies” and to exercise the requisite facility “for adjusting and reconciling public and private needs.” 1
I. THE OPINION AND ORDER OF THE DISTRICT COURT
The majority opinion quotes certain excerpts from the opinion of the court below, but the excerpts quoted do not fairly represent the opinion of that court. The action of the District Court in its memorandum opinion and order may be summarized in outline form as follows:
(a) The District Court stated that the “starting point in any school segregation case must be Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the implementing decree of the court in Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), and its reinterpretative opinion, Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19 (1958)”, and recognized that it was bound by the holdings in the cases cited.
*341(b) Proper notice was taken of the fact that “ * * * district courts have been invested with and are expected honestly and fairly to exercise discretion in the enormous task of desegregating public schools.” The opinion asserts that the course to be followed in the discharge of such task was “staked out” in an opinion written by Judge Rives in the case of Shuttlesworth v. Birmingham Board of Education, 162 F.Supp. 372 (N.D.Ala. 1958) aff’d. by Supreme Court 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145, wherein it is unequivocally held:
“All that has been said in this present opinion must be limited to the constitutionality of the law upon its face. The School Placement Law furnishes the legal machinery for an orderly administration of the public schools in a constitutional manner by the admission of qualified pupils under a basis of individual merit without regard to their race or color. We must presume that it will be so administered. If not, in some future proceeding it is possible that it may be declared unconstitutional in its application. The responsibility rests primarily upon the local school boards, but ultimately upon all of the people of the State.”
(c) Expressly stating that the law of this case is that the Alabama School Placement Law “ * * * furnishes the legal machinery for an orderly administration of the public schools in a constitutional manner by the admission of qualified pupils upon a basis of individual merit without regard to their race or color,” the court held that the pupil, or those authorized to act in the pupil’s behalf, should first apply for assignment or transfer; and that before the court would grant injunctive relief, the administrative remedies provided by the Alabama act as modified and limited by the Court’s opinion and order must first be used.
(d) The opinion clearly holds that after application for assignment or transfer is made by a pupil, or those authorized to act in his behalf, to the school board, judicial remedies for the denial of Constitutional rights can then be pursued at once in the United States District Court without pursuing state court remedies. The court observed the fact that this Court of Appeals has been alert to strike down deviations by district courts from the Constitutional principles laid down in the Brown case, and asserted that the court had carefully read and considered all of the decisions by this Court of Appeals relative to the subject.
(e) The District Court correctly concluded that this Court of Appeals2 has not heretofore had cause to consider whether the Alabama law has a permissible scope of operation in the desegregation of public schools, but it was noted that the Fourth Circuit had dealt with a similar state act in the case of Carson v. Warlick, 238 F.2d 724 (4 Cir. 1956), which was cited with approval in the Shuttlesworth case.
(f) The opinion and order squarely state that discrimination will not be tolerated, and uses the following language in so holding:
“This court will not sanction discrimination by them [the Superintendent and Board of Education] in the name of the placement law but it is unwilling to grant injunctive relief until their good faith has been tested. If it should be demonstrated that it has been unconstitutionally applied, under the settled authorities the court would be compelled to order the submission of a desegregation plan for its approval.”
The District Court affirmed that both the Superintendent and the Board had assured the Court that regulations governing the assignment and transfer of pupils in the Birmingham school system had been in effect since June 1958 for the purpose of implementing the Alabama law; and found that sufficient time remained before the opening of school in *342September 1963 for the processing of applications for assignments and, transfers in behalf of interested individuals.
(g) Jurisdiction of the action was retained for the purpose of hearing any complaint which might be presented “ * * * in case of any unconstitutional application of the Alabama School Placement Law against the plaintiffs, or others similarly situated, or of any other unconstitutional action on the part of defendants against them.” The trial court mentioned the fact that the Superintendent and the Board had assured the court that “ * * * stand ready to comply with the law when any individual sets the administrative machinery in motion.” By affidavit of the Superintendent speaking on behalf of the Board filed in this court, it is stated:
“It [the Board] was and is now prepared to deal with the matter in a proper and orderly manner upon applications pursuant to the laws of Alabama and the decree of the District Court in this case.”
(h) In case any complaint is made by any person, the issues tendered thereby are to be given “ * * * a preferred setting on the docket of this court and will be heard on five days notice to defendants.”
It is my considered opinion that the action of the District Court fully complies with both Brown decisions, the decision in the Aaron case, and is in complete accord with the previous holdings of this court. The trial court found as a fact that according to the uncontroverted record before the court, that no Negro child, or anyone authorized to act in his behalf, had applied for enrollment in or transfer to any school designated White, and pursued the remedies afforded by the Alabama statute. It was further found as a fact that such reluctance to bring about integration of the public schools was not a “blind adherence to tradition”, but that the undisputed evidence in the record (which this court has not yet seen) clearly shows that there is “very strong opposition to the mixing of the races in the schools of Birmingham on the part of citizens of all races.” The District Court rejected forthwith the opinions of experts in the fields of psychology and anthropology in whatever form insofar as they constitute an attack upon the rules of law laid down by the Supreme Court in the Brown and Aaron decisions.
A casual analysis of the opinion and judgment of the District Court should convince anyone that the court has not followed the Alabama act blindly, but has-used it only insofar as it “furnishes the-legal machinery” for the desegregation of the schools in a Constitutional manner. The assignment and transfer of students from school to school, and the right to make objection to an assignment already made were covered by the opinion. In their brief, the Superintendent and Board admit and affirmatively assert that the provisions of the Alabama act and the decree of the court “are not restricted in application to any grade or grades- * * ; that it “ * * * authorizes, application for initial assignment to any school by the entering first grade students” ; and that there is “ * * * no-limitation on the number of pupils who may apply for assignment or transfer.”' In my opinion, the plan outlined by the District Court not only meets the standards recently expressed by this court in the case of Calhoun v. Latimer, 5 Cir.,. 321 F.2d 302, but makes more liberal provisions with respect to assignment, transfer and objection to assignments previously made, because such provisions are-applicable to all grades in Birmingham..
A fair and proper analysis of the ruling of the District Court will reveal that, it is not subject to the criticism that students cannot make application for assignment to a school of their choice on-entering the first grade as denounced in-Bush v. Orleans Parish School Board, 308 F.2d 491, 5 Cir. 1962. Such applicants for assignment or transfer are not. impeded by dual school districts as was-involved in Augustus v. Board of Pub. Inst. of Escambia Co., 306 F.2d 862, 5* Cir., 1962; the plaintiffs are not required: to comply with the details of the Ala*343bama Placement Law as condemned Mannings v. Board of Pub. Inst, of Hills-borough Co., Fla., 277 F.2d 370, 5 Cir. 1960; nor is there a failure to afford a reasonable and conscious opportunity to pupils to apply for admission to any school to which they are eligible as condemned in Gibson v. Board of Pub. Inst, of Dade Co., Fla., 272 F.2d 763, 5 Cir. 1958. It is true that the Brown decision places first responsibility to desegregate on the school authorities; but if the school authorities do not act, the district courts are required to act. Admittedly, the school authorities in Birmingham have not submitted a plan of desegregation. Their failure resulted in this lawsuit, and the District Court has now directed the authorities to proceed with desegregation as provided by the Alabama law and the decree of the District Court. By retaining jurisdiction of the case and ordering that any complaint will be heard on five days’ notice, the District Court has provided an effective and speedy method of supervision. We know of no plan or other remedy which is calculated to give better relief. The failure of the school authorities to act does not require injunctive relief in cases where a method of desegregation is outlined and provided as was done in this case. Plans presented by school boards are rarely ever approved in toto. Even after plans are submitted by school authorities and revised by the courts, litigation seems to continue. in
II. THE MAJORITY OPINION
(a) Injunction Pending Appeal:
There is an ancient and classic principle long recognized by all courts with reference to the granting of injunctions whether at the trial or appellate level, forcefully stated by Justice Baldwin, sitting at Circuit in the year 1830, in the case of Bonaparte v. Camden, 8 A. R. Co. (C.C.N.J.1830) Fed.Cas.No.1,617, p. 821:
“There is no power the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or more dangerous in a doubtful case, than the issuing an injunction; * *
Rule 62 F.R.Civ.P. deals with the question of injunction pending appeal. Subsection (c) of that rule relates to the power of district courts to issue such injunctions pending appeal. Subsection (g) of the same rule deals with the subject on the appellate level. It is conceded that a District Court (to which the Federal Rules of Civil Procedure generally apply) may grant injunctive relief pending an appeal as provided by subsection (c). Such is the holding of the Ninth Circuit in United States v. El-O-Pathic Pharmacy, 9 Cir. 1951, 192 F.2d 62. In construing the rule and commenting on the last cited case, one of the leading commentaries on federal practice and procedure states the rule to be as follows:
“In that case the court also pointed out that appellate courts are not as well equipped as the trial court to enforce an order of the sort in question. Thus Rule 62(g), allowing the appellate court to make such orders, should be regarded as supplementary to Rule 62(c). In the normal case parties should he required to seek relief first from the trial court, with the appellate court acting only if the trial court has erroneously refused to grant such relief.” (Emphasis added)
Vol. 3 Fed.Practiee & Procedure, Rules Ed. (Rev. by Wright) § 1373, p. 466
It should be emphasized and made crystal clear that there is no showing before us that the appellants in this case sought interlocutory relief in the trial court.3
My brothers of the majority have directed the issuance of a mandatory injunction, which,- of necessity, is of an interlocutory nature, because this case has not been reached on its merits. A *344clear statement of the law is contained in W. A. Mack, Inc. v. General Motors Corp., 7 Cir. 1958, 260 F.2d 886 as follows:
“ - * * mandatory injunctions are rarely issued and interlocutory mandatory injunctions are even more rarely issued, and neither except upon the clearest equitable grounds.”
See also Miami Beach Federal Savings & Loan Ass’n v. Callander, 5 Cir. 1958, 256 F.2d 410. The usual case arises upon an appeal from an order of the trial court granting or denying a preliminary injunction and even in such cases, the scope of review is limited. In re Tucker Corp. (Veenkant v. Yorke), 7 Cir. 1958, 256 F.2d 808; Mytinger & Casselberry, Inc. v. Numanna Labs. Corp., 7 Cir. 1954, 215 F.2d 382; O’Malley, et al. v. Chrysler Corp., 7 Cir. 1947, 160 F.2d 35; Vol. 3 Fed.Practice & Procedure, Rules Ed. (Rev. by Wright) § 1373.
In directing the District Court to issue a mandatory injunction pending determination of the appeal in this case on the merits, the majority claims that it is acting “in line with the procedure which we followed * * in Stell et al. v. Savannah-Chatham Co. Board of Education et al., 5 Cir., 318 F.2d 425, May 24, 1963. In making such an assertion, the majority is clearly in error because it has overlooked the fact that the appeal in Stell was interlocutory as provided by 28 U.S.C.A. 1292(1), from a judgment of the District Court denying a motion for preliminary injunction. The relief granted in Stell purports to have been granted under the All Writs Act, 28 U.S. C.A. 1651(a). That opinion recognizes-that the All Writs Act was intended to-be used only in the exceptional case where there had been an abuse of discretion or usurpation of judicial power, and should be used only in “extreme cases”. The authorities there cited, Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 74 S.Ct. 145, 98 L.Ed. 106; and LaBuy v. Howes Leather Co., 352 U.S. 249, 77 S. Ct. 309, 1 L.Ed.2d 290, do not support the action of the majority in this case.
All 3 cases, Stell, Bankers Life, and LaBuy, involve interlocutory appeals relating to the denial or granting of interlocutory relief. It was never intended that the All Writs Act should be used' as a substitute for appeals, and this is true even though hardship may result from delay. In any event, a heavy burden is placed upon those who petition for the writ to show that their right to its issuance is “clear and undisputable”. Although the writ sought in Bankers Life was a writ of mandamus, the court was speaking of the All Writs Act, 28 U.S.C.A. 1651(a) when it there observed;
“ * * * Congress must have realized that in the course of judicial decision some interlocutory orders might be erroneous.” (emphasis added)
*345The court assumed the existence of the difficulties of which petitioner there complained, resulting in the creation of many legal and practical problems, but the court observed:
“ * * * but Congress must have contemplated those conditions in providing that only final judgments are reviewable.”
The Court concluded:
“But it is established that the extraordinary writs cannot be used as substitutes for appeals, Ex parte Fahey, 332 U.S. 258, 259-260, [67 S.Ct. 1558, 91 L.Ed. 2041-2043] (1947), even though hardship may result from delay and perhaps unnecessary trial, United States Alkali Export Assn. v. United States, 325 U.S. 196, 202-203, [65 S.Ct. 1120, 89 L.Ed. 1554, 1560, 1561] (1945); Roche v. Evaporated Milk Assn., supra [319 U.S. 21], at 31 [63 S.Ct. 938, 87 L.Ed. .1185]; and whatever -may be done without the writ may not be done with it. Ex parte Rowland, 104 U.S. 604, 617 [26 L.Ed. 861, 866], (1882).”4 (Emphasis added)
Traditionally, injunctions pending appeal have been issued in cases of extreme emergency, to avoid mootness, to preserve the status quo, to protect the jurisdiction of the court; and in the leading cases on the subject, if not all, injunc-tive relief pending appeal is granted only after the trial court has refused to grant interlocutory relief. Such a request was made in the Stell case. No such action was requested of the trial court in the instant case. Not only is it unfair and inconsiderate for an appellate court to grant such relief pending appeal when the trial court has had no opportunity to pass upon the question, such relief should never be granted as a substitute for an appeal. In passing upon injunctive relief, the court should take no action which will preclude fair consideration on the merits. As stated in Mesabi Iron Co. v. Reserve Mining Co., 8 Cir. 1959, 270 F.2d 567:
“ * * * the appellate court ought not to determine crucial questions conditioning the merits of the case * * *»
If this is the law in cases where interlocutory relief is first sought in the trial court, such a rule should be more strictly followed in eases where no interlocutory relief was sought in the lower court. Prior to the instant ease, such has been our holding. As stated in Miami Beach Federal Savings & Loan Ass’n, supra:
“We have repeatedly held that an order for a temporary injunction does not and cannot decide the merits of the case.”
This court has recently spoken concerning the extraordinary remedy of injunction pending appeal in Greene v. Fair, Feb. 18, 1963, 314 F.2d 200, and there clearly stated the controlling principles :
“The reason for the sparing use of this power is apparent. Litigants are given the opportunity to try their cases in a district court and they are given an unlimited right of appeal to the Courts of Appeal. The rules of this Court make possible a prompt hearing of all regularly docketed appellate cases. The rules provide for accelerated hearings in cases in which cause therefor is shown. The vindication of private rights by litigation necessarily entails some delay. Laymen and courts alike regret any delay in the vindication of a right that is not the natural and proper result from the orderly handling of the litigation. Historically and traditionally within our system of justice, appellate procedure calls for the docketing of a case, the furnishing of the *346transcript of the record to the appellate judges, a full briefing by the appellant, with an opportunity for response to be made by the appellee, and oral argument after consideration of the records and briefs by the Court. The time required to prosecute an appeal in this manner is recognized by all to be time well spent in the ordinary case.”
(b) The Ruling and Mandate of the Majority:
The majority opinion asserts that nothing contained therein is to be construed as enjoining or restricting voluntary segregation. This Court is unequivocally committed to the proposition that voluntary segregation is permissible. The order and opinion before us for review do not require segregation, but most emphatically state that any action on the part of the Superintendent and Board requiring segregation will not be tolerated. Accordingly, it is difficult for me to see any useful purpose in issuing the extraordinary writ of injunction pending appeal. As a matter of fact, in the case of Rippy v. Borders, 5 Cir. 1957, 250 F.2d 690, this Court specifically held that a district court should not issue an order enjoining the school board from “permitting” segregation. Briggs v. Elliott, E.D.S.C.1955 (three-judge court composed of Parker and Dobie, Circuit Judges, and Timmerman, District Judge), 132 F.Supp. 776; Avery v. Wichita Falls Independent School Dist., 5 Cir. 1957 (Judge Rives), 241 F.2d 230; Borders v. Rippy, 5 Cir. 1957 (Judge Rives), 247 F.2d 268; Boson v. Rippy, 5 Cir. 1960 (Judge Rives), 285 F.2d 43. As a matter of fact, the opinion and order clearly state that the District Court “ * * * will not sanction discrimination * * *,” and the doors of the court are held open to hear any complaint 0f «* * * any unconstitutional application of the Alabama School Placement Law against the plaintiffs, or others similarly situated, or any other unconstitutional action on the part of the defendants against them.” (Emphasis added.)
The cases cited in the majority opinion, particularly Gibson (2 appeals), Holland, Mannings, Augustus, and Bush, all denounce “the requirement of racial segregation in the public schools.” (Emphasis added.) In the first Gibson appeal,. in speaking of the Florida law, it was stated, “ * * * neither that nor any other law can justify a violation, of the Constitution of the United States by the requirement of racial segregation in the public schools.” (Emphasis added.) To the same effect was the second Gibson appeal.5 The opinion and *347■order now before us for review do not require segregation, but provide a means of orderly desegregation.
The most recent decisions bearing on the issues before us are two cases from our own court, the Stell case, and Calhoun v. Latimer, 5 Cir., 321 F.2d 302; and two Supreme Court cases, both decided on June 3,1963, McNeese v. Board of Education, involving an Illinois statute, and ■Goss v. Board of Education of Knoxville, Term., 83 S.Ct. 1405. In addition to the •distinguishing features in the Stell case which we have heretofore mentioned, a reading of that opinion will show that admission and attendance at schools in ■Savannah-Chatham County, Georgia, was required, on a racial basis. The opinion further stated that evidence was admitted •and considered which “ * * * tended to support the thesis that compliance with the Supreme Court’s decision (Brown v. Board of Education) would be ■detrimental to the Negro plaintiffs and the white students in the Savannah-Ghatham County school system.” The so-called Atlanta Plan approved in the Latimer ease supports the decree of the District Court here involved. As a matter of fact, the decree of the District Court authorizes a procedure for desegregation as to all 12 grades, which the Atlanta Plan does not. This is not a criticism of the Atlanta Plan. The Supreme Court and the decision in Latimer, as well as numerous other cases, recognize the well known fact that all cases are not alike.
In the McNeese case, the court was considering an administrative remedy provided by the Illinois school code. First, the court decided not to apply the rule announced in Burford v. Sun Oil Company, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 relating to abstinence by a federal court in cases where state administrative remedies are made available. As to that question, the court found, “We have, however, in the present case no underlying issue of state law controlling this litigation.” The court reasoned that “* * * it is by no means clear that Illinois law provides petitioners with an administrative 'remedy sufficiently adequate to preclude prior resort to a federal court for the protection of their federal rights.” The court concluded that the Illinois law was no remedy at all.6 McNeese asserts that “[i]t would be anomalous to conclude that such a remedy forecloses suit in the federal courts when the most it could produce is a state court action that would have no such effect.” The opinion rendered by the District Court in the instant case does not authorize or tolerate the procedure criticized in the McNeese ease. Footnote 2 of the District Court’s opinion provides, “After administrative remedies before the school board have been exhausted, judicial remedies for denial of constitutional rights may be pursued at once in this court without pursuing state court remedies.” (Emphasis added) The McNeese case did not hold or intimate that it was unlawful for a district *348court to require limited administrative procedure such as that required by the holding of the trial court in this ease. Regardless of what we say, school systems must be operated by school superintendents and school boards, or by some administrative agency. All administrative procedure is not unlawful. Indeed, schools cannot operate without administrative procedure. As stated in Latimer, “The courts are ill equipped to run the schools.”
In the Goss case, the difficulty complained of related to transfer provisions of the school desegregation plan. As there stated, “ * * * by the terms of the transfer provisions, a student, upon request, would be permitted, solely on the basis of his own race and the racial composition of the school to which he has been assigned by virtue of rezoning, to transfer from such school, where he would be in a racial minority, back to his former segregated school where his race would be in the majority.” The transfer system there under attack was held to work only to the end that segregation would be perpetuated. Transfers were available only to those who wished to attend schools where their race is in the majority and “ * * * there is no provision whereby a student might transfer upon request to a school in which his race is in the minority, unless he qualifies for a ‘good cause’ transfer.” The court concluded:
“[W]e note that if the transfer provisions were made available to all students regardless of their race and regardless as well of the racial composition of the school to which he requested transfer we would have an entirely different case. Pupils could then at their option (or that of their parents) choose, entirely free of any imposed racial considerations, to remain in the school of their zone or transfer to another.
******
“This is not to say that appropriate transfer provisions upon the parents’ request, consistent with sound school administration and not based upon any state-imposed racial conditions, would fall. * * *”
I find none of the defects in the opinion and order of the District Court which are condemned in Goss.
III. DELAY AND EMERGENCY
Considerable emphasis is placed upon the matter of delay from the time the suit was initially filed in the District Court on June 17, 1960, until a final decision was rendered on the merits on May 28, 1963. Briefs of the appellants mention this delay and the majority opinion places emphasis on it. During the course of oral argument, appellants were interrogated by the court as to the delay involved, and the court was assured by counsel that no point was now being made with respect to delay. The matter continues to arise however, in spite of the fact that we do not have the record before us to determine if there was unnecessary delay. There is nothing to show that the parties litigant sought an earlier hearing. We judicially know of the excellent record of the U. S. District Court for the Northern District of Alabama for the expedient dispatch of business. If there has been unnecessary delay in this case, it constitutes the exception rather than the rule. The case of Nelson v. Grooms, 5 Cir. 1962, 307 F.2d 76, may reveal some facts touching the question of delay. In the Nelson case the parties sought a writ of mandamus against U. S. District Judge H. H. Grooms, because he continued the Nelson case pending hearing in the Armstrong case, rather than grant the petitioners’ application for preliminary injunction filed on June 13, 1962. The Nelson case was decided by a panel of this court on August 17, 1962. In the Nelson case it was alleged that the Armstrong case (presently before us) had been pending since June 17, 1960, but it was asserted that counsel for Armstrong were W. L. Williams, Jr. of Birmingham and Ernest D. Jackson, Sr. of Jacksonville, Florida; whereas, counsel for Nelson were Constance Baker Motley of New York, and Orzell Billingsley, Jr. and Peter A. Hall of Birmingham. That *349fact was alleged as a reason why the cases should not be consolidated.7 The Nelson case is no longer before us, because the plaintiffs have moved from Birmingham and that case has been dismissed. No attack had been made on the action of the court with respect thereto. Presently, in this case, the Armstrong case, Attorneys Williams and Jackson still appear of record as counsel for Armstrong; but in addition, George White of Birmingham and Constance Baker Motley. Jack Greenberg and Leroy D. Clark, all of New York, are also counsel. No criticism is made of the litigants or the lawyers involved as to the arrangements made for handling the cases. Of course, the litigants and the lawyers are free to deal with each other. It is a singular fact however, that at least two of the attorneys who originally filed the Armstrong case remain in it and so far as we know, no complaint was ever made of the delay involved. In Judge Grooms’ order it is recited that Judge Lynne would likely hear the Armstrong case in October 1982, and the hearing was held in October 1962.8 Judge Grooms’ order was entered in June 1962, and therefore everyone knew of the proposed hearing date for the Armstrong case as early as June 13, 1962. On the other hand, one of the attorneys who handled the Nelson case where complaint of delay was involved, and mandamus sought, now appears in the Armstrong case. So far as we are able to determine from anything before us, no complaint has ever been made, prior to this time, of the alleged delay in the Armstrong case. Courts are often reluctant to force parties to trial when the litigants on both sides prefer not to proceed to a trial, and many times cases are delayed for the convenience of the parties or for other legitimate reasons. Usually a change in counsel actively handling the case will result in delay. We cannot determine these questions when we have not seen the record.
Certainly, there has been no delay in this court. On the 26th day of June 1963, this court considered six (6) cases, all assigned for argument on an emergency basis. The six (6) cases are as follows:
1. Armstrong et al. v. Board of Education of the City of Birmingham, Jefferson County, Alabama, et al.
Decided in District Court on May 28, 1963; notice of appeal filed June 3, 1963; motion for injunction pending appeal filed on June 3, 1963; order assigning the case for oral argument on June 26, 1963, filed on June 5, 1963; and full oral argument was heard on June 26, 1963.
2. W. G. Anderson et al. v. City of Albany et al., 5 Cir., 321 F.2d 649.
Filed on July 24, 1962; the District Court heard 5 volumes of testimony (over 1300 pages) and entered an order dismissing the case on February 14, 1963; motion for injunction pending appeal, or in the alternative to advance the case on the docket for argument on the merits filed May 31, 1963; on June 5, 1963, an order was filed assigning the case for hearing on the merits on June 26, 1963; and on June 26,1963, the case was extensively argued on the merits.
This case relates to injunctive proceedings against the City of Albany with respect to certain public facilities. One of the chief complaints of the appellants when the suit was initially filed, was the fact that the City of Albany had in effect ordinances requiring segregation of certain of the facilities involved. At the *350time of argument, all such ordinances had been repealed and there was no compulsory segregation of such facilities. In addition to extensive oral argument on June 26, 1963, another petition seeking an injunction pending appeal was heard before Judge Bell and denied by him on June 13, 1963.
3. NAACP v. Thompson, Mayor of the City of Jackson, Mississippi, et al., 5 Cir., 321 F.2d 199.
Filed June 7, 1963; hearing conducted and relief denied by U. S. District Court on June 11, 1963; motion for injunction pending appeal filed in this court on June 12, 1963; order entered on June 14, 1963, assigning the case for hearing on the motion for June 26, 1963, at which time full argument was heard.
The relief sought is an injunction against the Mayor and city officials of the City of Jackson, Mississippi, restraining and enjoining them from interfering with parades, protests, street demonstrations, and from arresting Negro citizens who refuse to leave private businesses upon being requested to do so.
4. In the Matter of Application of Brown v. Rayfield, Chief of Police of City of Jackson, Mississippi (In the Matter of Application of Richards v. Rayfield), 5 Cir., 320 F.2d 96.
Petition for writ of habeas corpus filed on June 7, 1963; hearing conducted and writ denied on June 12, 1963, at which time the U. S. District Court refused to certify probable cause; on June 13,1963, a Judge of this court signed a certificate of probable cause; motion for immediate hearing filed on June 14, 1963; on June 14, 1963, motion granted and case was assigned for immediate hearing on June 26, 1963; and on June 26, 1963, extended oral argument was heard.
This writ of habeas corpus sought the release of two Negro citizens who had been arrested in connection with street ■demonstrations. No effort was made to •exhaust state remedies as required by law, because it was alleged that “members of the various state courts” of the State of Mississippi could not give a fair hearing to the petitioners, and that an effort to obtain state remedies would be futile. The petition also complained that the petitioners were confined in segregated jails in contravention of their constitutional rights. According to affidavit of the Respondent Rayfield, both petitioner-appellants were released from custody on June 15, 1963, by posting with the Clerk of the Municipal Court of the City of Jackson, Mississippi, an appearance bond in the sum of $100.00 for each of the appellants.
5. Kennedy v. Owen, Circuit Court Clerk and Registrar, Jefferson County, Mississippi, et al., 5 Cir., 321 F.2d 116.
(7 cases consolidated) Various applications were filed seeking an order of the District Court compelling the production of records by clerks and registrars. Said petitions were filed on various dates, but some were filed in the month of May 1963; District Court held hearing and entered decree granting partial relief and denying some relief sought on June 11, 1963; notice of appeal filed June 18, 1963; motion for summary reversal filed in this court June 20, 1963; order filed June 20, 1963, assigning the cause for oral argument on June 26, 1963; and on June 26, 1963, extended oral argument was heard.
By reference to opinion already released, it will be observed that the only question related to the sufficiency of a demand by the Attorney General which was addressed to the parties in their capacity as clerks only; whereas, the parties held the dual position of clerk and registrar.
6. United States v. Dallas County, Alabama, et al.
Complaint seeking injunction filed in U. S. District Court for the Southern District of Alabama at 4:30 P.M. on June 26, 1963; relief denied on June 26, 1963; notice of appeal filed June 26, 1963, and application made to this court for injunction at 9:00 P.M. June 26,1963, at which time full oral argument was heard.
*351In this proceeding the United States sought to enjoin the Circuit Solicitor of the 4th Judicial Circuit, the County Solicitor of Dallas County, the State Judge having jurisdiction of the case, the Sheriff of Dallas County, Alabama, and Dallas County, Alabama, from prosecuting a 19 year old Negro youth on a charge of resisting arrest and engaging in conduct calculated to cause a breach of the peace. Although the alleged offense was committed on June 17, 1963, and the defendant arrested on that date, no effort was made to enjoin the prosecution until June 26, 1963.
It should be noted that in 3 of the cases outlined, relief was sought in the U. S. District Court, action taken by the District Court, the case appealed, and full oral argument heard by this court in 19 days or less. Opposing litigants were required to appear before our court on unusually short notice, without sufficient time, in some cases, to prepare a brief. Some briefs were hurriedly prepared, typed and filed on the day the case was submitted to this court. Generally, administrative matters of the court, and cases which seek emergency relief, are handled by the court without formal oral argument. In the 6 cases mentioned, full and extended oral argument was permitted.
There is another factor which I feel it is my duty to mention as a matter of information to attorneys who appear before our court.9 The arguments presented in some of the cases mentioned above contained insinuating overtones unfavorably reflecting on both the Federal and State Judiciary, in certain localities, varying in degree from the barely audible tinkling of a distant cymbal to the crashing noise of sounding brass. It is fundamental that lawyers owe full allegiance to their clients and should use their learning, skill, diligence, devotion, and “ * * all appropriate legal means within the law to protect and enforce legitimate interests.”9 10 Lawyers are required in the discharge of their duties to disagree with judges, to allege error, to attack the judges’ rulings and decisions, and even to render just and proper criticism of such rulings, decisions and judgments. But the Office of Judge, whether it be Federal or State, requires the respect of the legal profession to the end that the dignity and independence of the judiciary may be maintained, regardless of the individual who may occupy such office at any given time. It is not appropriate, in my opinion, for lawyers, who are officers of the courts, to condemn all of the courts of a state, or to reflect improperly upon the courts generally by condemnation of such courts as a class or group. Such arguments are highly improper and are disapproved.11
At the time the above mentioned 6 cases were being heard, there were pending in this court 260 cases which could be calendared and heard during the summer recess. 117 of such cases could be calendared' during July. Further, in addition to the 260 cases which have not been submitted there were, on June 26, 1963, 237 cases which had already been submitted to the court but not decided. Some of the 237 cases were argued and submitted over a year ago; 40 were submitted before January 1, 1963, and the balance were submitted since January 1, 1963. These 237 cases are now being considered by the court. All of the cases combined make a total of almost 500 cases pending in this court as of June 26, 1963. Consideration of them will come in the normal course of the court’s business, but the 6 cases outlined above received special emergency attention. The workload of this court is currently the heaviest of any Court of Appeals in the nation. The record of this court in hearing and deciding cases is as good as any. That record cannot long endure if *352certain cases are to be given special attention and considered on a preferential basis. In the vast number of cases now pending before this court are matters of tremendous importance involving business affairs, taxes, property, personal injuries, life and liberty. With deference and full respect, I feel it is my duty to express the opinion that the 6 cases which were fully argued on June 26, 1963, were not of such overwhelming importance as to take precedence over all other cases then pending in this court.
IV. EN BANC HEARING
Because of the importance of this case both as to the motion for injunction pending appeal and the merits of the case on appeal not yet heard, because of the extraordinary relief granted which conditions the merits of the case before an examination of the record by the court, the hurried and emergency action taken by the court, the unique procedure involved, and for other reasons which appear to me sufficient, I hereby request, as authorized by Rule 25a of this court and the applicable statutes,12 that the court reconsider, rehear and decide this case En Banc, and I hereby initiate consideration of this request by each of the Judges of the Court. See United States v. New York, N. H. & Hartford Railroad Co., 2 Cir. 1960, 276 F.2d 525; Puddu v. Royal Netherlands, etc., 2 Cir. 1962, 303 F.2d 752; Walters v. Moore-McCormack Lines, Inc., 2 Cir. 1963, 312 F.2d 893.
ON PETITION FOR REHEARING BY FULL COURT
PER CURIAM.One of the members of this Court, having in the dissenting opinion, requested a rehearing of the case en banc, the Chief Judge polled the Circuit Judges of this Circuit who are in active service to determine whether an en banc rehearing should be ordered by a majority of such Judges. A majority of the Judges of the Circuit in active service, having voted against convening the Court en banc for the purpose of such rehearing, the petition of the appellees for rehearing by the Court en banc is DENIED. The Petition for Rehearing is Denied.
GEWIN, Circuit Judge, dissenting.
. See Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753.
. The Shuttlesworth case was decided by a three judge District Court and not by this court. The Shuttlesworth case was affirmed by the Supreme Court.
. Cumberland Tel. & Tel. Co. v. La. Pub. Serv. Comm., 260 U.S. 212, 43 S.Ct. 75, 77, 67 L.Ed. 217, is a case in which the Supreme Court recognized the fact that *344the trial court should first be asked for such injunctive relief:
“We, of course, appreciate that, notwithstanding a denial of an injunction on its merits, a court may properly find that pending a final determination of the suit on the merits in a court of last resort, a balance of convenience may be best secured by maintaining the status quo and securing an equitable adjustment of the finally adjudicated rights of all concerned, through the conditions of a bond. Hovey v. McDonald, 109 U.S. 150, 161 [3 S.Ct. 136, 27 L.Ed. 888, 891]; Equity Rule No. 74. But the court which is best mid most conveniently able to exercise the nice discretion needed to determine this balance of convenience is the one which has considered the case on its merits and, therefore, is familiar with the record.” (Emphasis added)
See also Peay et al. v. Cox, 5 Cir. 1951, 190 F.2d 123, wherein, the court was dealing with the question of injunctions and the exhaustion of administrative remedies and there held that an injunction should not issue. The court concluded that state remedies which are administrative as distinguished from those which are judicial should first be exhausted, because the exhaustion of administrative remedies does not result in the matter becoming res judicata; citing with approval Bates, et al. v. Batte, et al., 5 Cir. 1951, 187 F.2d 142; Cook v. Davis, 5 Cir. 1949, 178 F.2d 595; Shinliolt, et al. v. Angle, 5 Cir. 1937, 90 F.2d 297.
. See also Cumberland Tel. & Tel. Co. v. Louisiana Pub. Serv. Comm., 260 U.S. 212, 43 S.Ct. 75, 67 L.Ed. 217; and In re Philadelphia & Heading Coal & Iron Co., 103 F.2d 901, 903 (3 Cir. 1939); and Greene v. Fair, 314 F.2d 200 (5 Cir. 1963).
. In the first Gibson case, for example, there was a rule of the school board directed to the superintendent, principals, and all other personnel, advising them that the public school system of Dade County, Florida, “will continue to be operated, maintained and conducted on a nonintegrated basis.” In the second Gibson appeal, Judge Rives states that the racial factor was imminent in the consideration of the assignment and transfer of pupils under the plan there being considered. For example, the application contained a blank space after the word “school”, and did not permit a “ • * * conscious preference for continued segregation on a voluntary basis.” It was also stated that certain forms and school records continued to emphasize “White” and “Negro”; and it was finally held that for all practical purposes “ * * * the requirement of racial segregation in the public schools continue [d] at the time of trial.” (Emphasis added)
In Holland, Judge Rives reaffirmed that the Alabama School Placement Daw is approved; but as to the Florida Pupil Assignment Daw, cited the first Gibson case as to “ * * * the requirement
of racial segregation in the pupil schools * * * ”. See majority opinion.
The Mannings case related to a procedural question. There the court dismissed the complaint without affording the plaintiffs an opportunity of making proof of their allegations. Accordingly, whatever the complaint alleged was considered true under the procedure, and the complaint alleged compulsory racial segregation.
In Augustus, the Florida Pupil Assignment Law was still under attack and each year the Board passed a resolution assigning each pupil back to the school *347which he had previously attended. The district court in Augustus found that the racial factor was a consideration in the assignment of students and that the Placement Law was being used for that purpose.
La Bush, two district Judges and the Court of Appeals found that the Placement Law there involved was “ * * • being used to maintain segregation * * and there was no approval of the Placement Law there involved such as the approval given the Alabama Placement Law in Shuttlesworth. •
. It was pointed out in the opinion that before the question of segregation in a school on account of race could be presented to the Superintendent of Public Instruction, 50 residents of a school district, or 10% whichever is lesser, were required to file a complaint. Any final decision by the Superintendent was subject to review by the courts. The Superintendent himself apparently had no power to order corrective action. His only function was to investigate, recommend and report. He could give no remedy. He could make no controlling finding of fact or law, and his recommendations were not required to be followed by any court or executive order. Numerous other deficiencies in the Illinois law are made clear by the opinion.
. We quote from the petition for mandamus in the Nelson case filed by the same counsel who orally argued the Armstrong case before this court:
“Counsel for the plaintiffs in the Armstrong case are not the same as counsel for the petitioner here. Counsel for the plaintiffs in the Armstrong case are: W. L. Williams, Jr., 1630 Fourth Avenue, North, Birmingham, Alabama, and Ernest D. Jackson, Sr., 410 Broad Street, Jacksonville, Florida.”
. The hearing before Judge Lynne was concluded the latter part of October, and the parties were given time to file briefs. In addition, the record of the testimony had to be transcribed.
. See Canons of Judicial Ethics, American Bar Association, Cannon No. 11; Handbook for Judges (Carroll, Ed. 1961) American Judicature Society, p. 7.
. See Code of Trial Conduct, American College of Trial Lawyers, 1962-63.
. See Canons of Professional Ethics, American Bar Association, Canon No. 1.
. 28 U.S.C.A. § 46. “Assignment of judges; divisions; hearings; quorum “(e) Cases and controversies shall be heard and determined by a court of division of not more than three judges, unless a hearing or rehearing before the court in bane is ordered by a majority of the circuit judges of the circuit who are in active service. A court in banc shall consist of all active circuit judges of the circuit.”