(dissenting).
On July 12, 1963 a panel of this Court composed of Chief Judge Tuttle and Judges Rives and Gewin filed an opinion and order in this case, ordering the District Court for the Northern District of Alabama to enter the judgment therein set forth, the opinion being written by Judge Rives, a special concurrence by Judge Tuttle, and a dissent by Judge Gewin. Judge Gewin requested that the Court in banc reconsider and decide the case and I joined in that request. The Chief Judge advised that the request had been denied by a five to four vote of the members of the Court. I respectfully dissent from the action of the members of the Court in refusing this in bane hearing and from the failure of the panel to grant the in banc hearing requested by the appellees in a telegram to each of the Judges of the Court prior to the beginning of the hearing of the case by the panel.
Since the filing of the opinion and order on July 12th by the panel of three Judges the appellees have filed with the clerk of this Court a petition for rehearing and reconsideration of the decision and order of the panel. I am advised that a sufficient number of the petitions for rehearing was filed for the distribution, as requested by appellees, of a copy of the petition to each of the *353Judges of the Court. I am further advised that no copies of the petition for rehearing were submitted to any of the Judges of the Court except the members of the panel which had heard the case. That panel has, with Judge Gewin dissenting, entered an order declining the prayer for an in banc hearing and denying the rehearing; and orders have been entered accordingly. I respectfully dissent from these actions of the panel and the orders entered in connection therewith.
The decision of this panel involves questions of procedure which have for some weeks plagued and are still plaguing the Court. The Judges of the Court are sharply divided on these questions and not only the lawyers of the Circuit, but the public generally, are displaying open concern with respect to inconsistent positions which they conceive are being taken by the Court.1 *I feel constrained to present in this dissent the result of some studies I have made and some views I entertain with respect to those questions, some of which have been so ably and exhaustively discussed by Judge Gewin in his dissenting opinion, in which I fully concur.
The procedure followed by the majority here is one which, in my opinion, is not sanctioned by the law. The hearing before these three Judges was mt an appeal. Rather, it was what the Third Circuit has termed something “in the nature of an original proceedings * * 2 It was the substitution of a hearing on “injunction pending appeal” for a hearing on appeal. Theoretically the appeal is still pending, but it is apparent that there is little or nothing more to hear since the decision and order of the majority of the panel are on the merits of the case, deciding in full, without the benefit of any record of the evidence in the lower court, the questions of law and fact which were before that court in its extended hearing. This phase of the vexatious problem before us has been so well handled by Judge Gewin’s dissent that I rest on what he has said, with a few supplementary remarks.
I.
All of these unorthodox procedures have arisen in cases involving racial problems. Attention is focused on several of them in the five opinions written by members of this Court in No. 20240, United States of America v. Ross R. Barnett and Paul B. Johnson, Jr., April 9, 1963, which aggregated a total of one hundred thirty pages; while *354other angles of the procedural questions were dealt with at some length in United States v. Lynd, 5 Cir., 301 F.2d 818, and the same case decided July 9 and 15, 1963 by a panel composed of Judges Brown, Wisdom and Bell, 321 F.2d 26. The last sentence of Judge Bell’s special concurrence in the July 9th hearing characterizes poignantly the dilemma into which this Court has been plunged since it set itself the task of inventing special procedures for the handling of such cases:
“This case serves as a classic example of the pitfalls to be encountered, with the attendant disruption and delays in the orderly administration of justice, when courts depart from the time-tested processes of law."
The present wave of petitions for treatment according to the new and unusual procedures' described in Judge Gewin’s dissent, may be said to have been set off by an order granted by Chief Judge Tuttle on May 22, 1963 in No. * * *, Linda Cal Woods by Next Friend v. Theo R. Wright, Superintendent of Schools of the City of Birmingham. The incomplete record of this case on file in this Court states that, on May 21, 1963, this class action was brought against the Superintendent of Schools in the City of Birmingham for an order enjoining him from enforcing a directive of the Board of Education of Birmingham suspending the minor Linda Cal Woods and expelling or suspending approximately 1080 other Negro students from the public schools of Birmingham on the alleged ground that they had been arrested for parading without a permit. The order entered by the Judge of the District Court on May 22nd recites that the case came on for hearing before him on motion for temporary restraining order and/or preliminary injunction and states that the prayer for both was denied. Reproduced in the margin are excerpts from this order of the District Court.3
*355The order signed by Chief Judge Elbert P. Tuttle on the same day recites in part the following:
“The appellant * * * has made application to me to grant an injunction * * * pending an appeal on the merits of the case in this Court. Appellant contends that I have jurisdiction as a member of the Court of Appeals for the Fifth Circuit to grant such an injunction pending appeal under the terms of 28 U.S.C.A. § 1651(b). * * *
“It is clear, therefore, that the Court of Appeals has jurisdiction of this appeal within the contemplation of Section 1651(b). I, therefore, hold that I have jurisdiction and the power to grant the relief here sought. See Aaron v. Cooper, 8 Cir., 261 F.2d 97. See also Rule 62(g), Federal Rules of Civil Procedure, * * *
“Although on the record before me it appears shocking that a Board of Education, interested in the education of the children committed to its care, should thus in effect destroy the value of one term of schooling for so many children at a time when all persons professionally interested in the educational process and the welfare of young people are bending their efforts towards minimizing school dropouts and emphasizing the need for continuing education, the right of the appellant to succeed here cannot be based upon this consideration. If appellant is entitled to an injunction it must be based on my determination that there is a clear right to the relief sought in the trial court and that an irreparable injury will result to appellant and the class which she represents unless the relief by injunction pend- • ing appeal is granted.” [Emphasis added.]
Judge Tuttle’s order contains these directives :
“It is ORDERED that Theo R. Wright [and his agents, etc.] * * are hereby enjoined from continuing to enforce and carry into effect the order of the Board of Education issued by letter on May 20, 1963 « * *
“The said appellee [and the others] are further ordered to inform all principals of all schools in the Birmingham school system who received the letter of direction from respondent dated May 20,1963, * * that the letter of direction of May 20, 1963, is rescinded and revoked and all students affected thereby are to be permitted to return to their respective classes as regular students immediately. Pending the actual rescission of the said letter, appellee is ordered to make known in any way available to him or to the said students that they are permitted to return to school on Thursday, May 23, 1963.
“ * * * This order shall stay in effect until the final determination of this appeal on the merits or until the further order of the Court.” [Emphasis supplied.]
The file’furnished me by the clerk’s office shows that the hearing before Judge Tuttle was had upon an unsworn “petition” to which was attached what was alleged to be copies of several letters of May 20th, one from the principal of Washington School to Reverend Calvin Woods, father, and next friend of the plaintiff, and others from the superintendent of schools to other school officials, all ■ referring to the suspension or ex*356pulsion of children from the schools in Birmingham because of their participation in the “demonstrations” then taking place in the streets of Birmingham. The only proof conforming to the Rules governing granting of temporary injunctions was an affidavit by Reverend Calvin Woods, all of which referred to his daughter Linda and her conduct. As far as I can find there was no refutation at all of the findings of the District Judge concerning the conduct of the hundreds of students besides Linda Cal Woods, the unexcused school absences, the representations to the District Court by the Board of Education and the other important facts found by the court below as the basis of its denial of the motion for the temporary restraining order. There were no pleadings on behalf of the school board, because there had been no service of process or opportunity to file such pleadings.
Nevertheless, Judge Tuttle entered an order finding that there was no genuine dispute as to the fact that the students involved were arrested for participating in a demonstration against policies and practices of segregation either by the municipal government of Birmingham, the school system of Birmingham, or certain businesses in Birmingham whose segregation policies had previously resulted in the arrest of a number of Negro prisoners under either the segregation statutes of the City of Birmingham or the antitrespass laws of the State of Alabama.
Even assuming that there was an appeal then pending from the decree of the District Court to this Court, there was, in my opinion, no jurisdiction in the Chief Judge to hear or dispose of the motion for, temporary injunction, especially one granting the order he essayed to enter, including, as it does, provisions for mandatory relief effectively disposing of the case on its merits. In the very nature of things, it was inevitable that the School Superintendent would obey the fiat of the Chief Judge of this Court whether it was backed by the authority of the law or not. No action could be taken which would obliterate the harm done to the Birmingham school system by this improvident order.
Unfortunately, efforts made by members of the Court to obtain an authoritative ruling on the legality of the order from the Judicial Counsel or the full Court were thwarted by the opposition of The Four.4
The majority in the instant case — as has been true in similar decisions rendered in the past few weeks — placed its reliance chiefly upon case No. 20557, Stell et al. v. Savannah Chatham County Board of Education, et al., 5 Cir., 318 F.2d 425. The injunctive order issued by the majority in the present case is modeled upon the order granted in the Stell case. Judge Gewin, in his dissenting opinion here, shows clearly that the present case is not controlled by the Stell case. In addition, I think that the Stell case should not be followed because it was illegally advanced and set for special hearing by the Chief Judge before a panel selected and assigned by him alone.5 I am unable to find any *357authority which is vested in the Chief Judge so to appoint a panel to hear a case or to assign a case for hearing such as was attempted by the Chief Judge in that ease.
II.
This Court is, of course, a creature of statute. The statute providing for the assignment of Judges is 28 U.S.C. § 46: “§ 46. Assignment of judges; divisions; hearings; quorum “(d) A majority of the number of judges authorized to constitute a court or division thereof, as provided in paragraph (c), shall constitute a quorum.”
“(a) Circuit judges shall sit on the court and its divisions in such order and at such times as the court directs.
“ (b) In each circuit the court may authorize the hearing and determination of cases and controversies by separate divisions, each consisting of three judges. Such divisions shall sit at the times and places and hear the eases and controversies assigned as the court directs.
“(c) Cases and controversies shall be heard and determined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc 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.
The Supreme Court interpreted this statute in the case of Western Pacific Railroad Corporation et al. v. Western Pacific Railroad Company et al., 1953, 345 U.S. 247, 257-258, 73 S.Ct. 656, 661, 97 L.Ed. 986, confirming the language of the statute as having the literal meaning of the words used:
“This interpretation makes for an harmonious reading of the whole of § 46. In this Section, Congress speaks to the Courts of Appeals: the court, itself, as a body, is authorized to arrange its calendar and distribute its work among its membership; the court, itself, as a body, may designate the places where it will sit. Ordinarily, added Congress, cases are to be heard by divisions of three. But Congress went further; it left no doubt that the court, by a majority vote, could convene itself en banc to hear or rehear particular cases.”
The Rules of this Court do not, as far as I can find, provide for the assignment of cases for hearing or for the assignment of judges by the Chief Judge or any one Judge.6 En banc hearings are *358provided for in Rule 25a of the Rules of this Court. I find no provision for advancement of cases or taking them up out of time either in the statutes or in our Rules or in the Federal Rules of Civil Procedure.7
From the foregoing, it follows, I think, that the judgment in the instant case should be reversed because the panel which decided it had no legal existence and the order setting it for hearing without-a record and giving it other preferential treatment was entered without authority. It follows, moreover, that the judgment should be reversed because the precedents upon which it is grounded were not valid decisions of this Court.
III.
I think, too, that a solution of the problems facing this Court will be helped by a study of the handling of racial cases during the immediate past, in which period so much haste has been made and so many procedural innovations have been utilized that the general impression has grown up and has been expressed that this Court has one set of procedures covering racial cases and another set covering all other cases. I have accordingly made a study of the cases as they appear in the Federal Reporter, Second Series, involving controversies heard before panels of this Court bearing date within the two years preceding the hearing of the present case on June 26, 1963. I believe this survey to be correct. It covers twenty-five cases, which are listed in Appendix “A” to this opinion. Of the twenty-five cases listed, the majority of the panel in twenty-two of them was composed of some combination of The Four, who constitute a minority of the active Judges. In only two cases did two of the remaining five members of the Court sit together.
Of the Circuit Judges of this Circuit, The Four sat fifty-five times; the other five sat twelve times. The Four wrote twenty-three of the twenty-five opinions, including per curiams: Chief Judge Tut-tle wrote six, including four per curiams; Judge Rives wrote six, including two per curiams; Judge Brown wrote four, and Judge Wisdom wrote six, including one per curiam. The per curiam order (Appendix “A”, No. 21) adjudging Lieutenant Governor Johnson to be in civil contempt was entered by a panel consisting of Judges Rives, Brown and Wisdom, and one of them wrote the opinion. One per curiam was written by one of the five remaining Judges of this Court and one full opinion was written by a district judge. .
IV.
The handling by Chief Judge Tuttle of three judge district courts in the State of Mississippi is a part of the picture of the crusading spirit which I think has been largely responsible for the errors here discussed and is relevant to the discussion of a solution of the problems before us. The statute providing for such courts is in these words:
Ҥ 2284. Three-judge district court; composition; procedure
“In any action or proceeding required by Act of Congress to be heard and determined by a district court of three judges the composition and procedure of the court, except as otherwise provided by law, shall be as follows:
“(1) The district judge to whom the application for injunction or other relief is presented shall constitute one member of such court. On the filing of the application, he shall immediately notify the chief judge of the circuit, who shall designate two other judges, at least one of whom shall be a circuit judge. Such judges shall serve as members of the court to hear and determine the action or proceeding. * * * ” (Emphasis added.)
In the performance of the ministerial duty so imposed upon him, the universal practice, except in this Circuit in the last four years, has been for the Chief Judge to appoint the circuit judge resident in the State for which the district court is *359constituted and one of the district judges resident in such state as the other two members. I have been able to find no instance where this procedure has not been followed except those here mentioned.
The State of Mississippi has residing within its borders one .Circuit Judge, three active District Judges, and one senior District Judge designated for active service, all of whom have been at all times mentioned citizens of Mississippi, qualified for the positions they hold, and ready, willing and able to perform the duties incident to service upon such a district court.
Since November 9, 1961 and prior to the submission of the instant case, three district courts of three judges have been constituted to hear racial cases in Mississippi.8
For the first of these District Courts' of the United States for the Southern District of Mississippi, Judges Tuttle, Rives and Mize were designated; for the second, Judges Rives, Brown and Mize were designated; and for the third, Judges Brown, Wisdom and Cox were designated. A member of The Four was substituted for the resident Circuit Judge in each instance, and another member of The Four was substituted for the additional District Judge. The idea that the Chief Judge may thus gerrymander the United States Judges of a State in order to accomplish a desired result is, I think, entirely foreign to any just concept of the proper functioning of the judicial process.
V.
If this Court is to regain the stature it owned on March 16, 1959 when Judge Hutcheson laid down the duties of Chief Judge it must, in my opinion, forsake the special procedures which have been discussed and adhere to those which are “time-tested” and legal. It is important, I think, that “the court as a body” on whom the responsibility rests take hold of the problem and solve it.
I, therefore, respectfully dissent. United States v. New York, New Haven & Hartford Railroad Co., 2 Cir., 1960, 276 F.2d 525; Puddu v. Royal Netherlands, Etc., 2 Cir., 1962, 303 F.2d 752; and Walters v. Moore-McCormick Lines, Inc., 2 Cir., 1963, 312 F.2d 893.
APPENDIX A
1. Dixon v. Alabama State Board of Education, Aug. 4, 1961, 5 Cir., 294 F.2d 150. Expulsion of students for demonstrating. Circuit Judges Rives, Cameron and Wisdom. Opinion by Judge Rives.
2. United States v. Wood, Oct. 27, 1961, 5 Cir., 295 F.2d 772. Voter registration. Circuit Judges Rives, Cameron and Brown. Opinion by Judge Rives.
3. Meredith v. Fair, Jan. 12, 1962, 5 Cir., 298 F.2d 696. School desegregation. Chief Judge Tuttle, Circuit Judges Rives and Wisdom. Opinion by Judge Wisdom.
4. Kennedy v. Bruce, Feb. 5, 1962, 5 Cir., 298 F.2d 860. Voter registration. Chief Judge Tuttle, Circuit Judges Rives and Wisdom. Opinion by Chief Judge Tuttle.
5. Stoudenmire v. Braxton, Mar. 9, 1962, 5 Cir., 299 F.2d 846. School desegregation. Chief Judge Tuttle, Circuit Judges Brown and Bell. Per curiam.
6. United States v. Lynd, April 10, 1962, 5 Cir., 301 F.2d 818. Voter registration. Chief Judge Tuttle, Circuit Judges Hutcheson and Wisdom. Opinion by Chief Judge Tut-tle.
7. Christian v. Jemison, April 25,1962, 5 Cir., 303 F.2d 52. Local transportation desegregation. Circuit Judges Rives, Brown and Wisdom. Opinion by Judge Wisdom.
*3608. State of Alabama v. United States, June 1, 1962, 5 Cir., 304 F.2d 583. Voter registration. Circuit Judges Rives, Cameron and Brown. Opinion by Judge Brown.
9. Meredith v. Fair, Feb. 12, 1962, 5 Cir., 305 F.2d 341. School desegregation. Chief Judge Tuttle, Circuit Judges Rives and Wisdom. Per curiam.
10. Meredith v. Fair, June 25, 1962, 5 Cir., 305 F.2d 343. School desegregation. Circuit Judges Brown and Wisdom, District Judge DeVane. Opinion by Judge Wisdom.
11. Kennedy v. Lynd (and four other consolidated cases), July 11, 1962, 5 Cir., 306 F.2d 222. Voter registration. Circuit Judges Rives, Brown and Wisdom. Opinion by Judge Brown.
12. Meredith v. Fair, July 27, 1962, 5 Cir., 306 F.2d 374. School desegregation — recall of mandate, etc. Circuit Judges Brown and Wisdom, District Judge DeVane. Opinion by Judge Wisdom.
13. Guillory v. Administrators of the Tulane University of Louisiana, July 21, 1962, 5 Cir., 306 F.2d 489. School desegregation. Circuit Judges Cameron, Brown and Wisdom. Per curiam.
14. Augustus v. Board of Public Instruction, July 24, 1962, 5 Cir., 306 F.2d 862. School desegregation. Chief Judge Tuttle, Circuit Judges Rives and Brown. Opinion by Judge Rives.
15. Nelson v. Grooms, Aug. 17, 1962, 5 Cir., 307 F.2d 76. School desegregation — -mandamus. Circuit Judges Rives, Brown and Wisdom. Opinion by Judge Rives.
16. Bush v. Orleans Parish School Board, Aug. 6,1962, 5 Cir., 308 F.2d 491. School desegregation. Circuit Judges Rives, Brown and Wisdom. Opinion by Judge Wisdom.
17. Stone v. Members of Board of Education, City of Atlanta, Ga., Nov. 16, 1962, 5 Cir., 309 F.2d 638. School desegregation. Chief Judge Tuttle, Circuit Judge Brown, District Judge Johnson. Per curiam.
18. Hanes v. Shuttlesworth, Nov. 16, 1962, 5 Cir., 310 F.2d 303. Park desegregation. Circuit Judges Rives, Jones and Bell. Per curiam.
19. Ross v. Dyer, Dec. 28, 1962, 5 Cir., 312 F.2d 191. School desegregation. Chief Judge Tuttle, Circuit Judges Hutcheson and Brown. Opinion by Judge Brown.
20. Potts v. Flax, Feb. 6, 1963, 5 Cir., 313 F.2d 284. School desegregation. Circuit Judges Brown and Bell, District Judge Simpson. Opinion by Judge Brown.
21. Meredith v. Fair (United States v. Mississippi and Paul B. Johnson, Jr.), Sept. 29, 1962, 5 Cir., 313 F.2d 534. Civil contempt. Circuit Judges Rives, Brown and Wisdom. Per curiam.
22. Clark v. Thompson, March 6, 1963, 5 Cir., 313 F.2d 637. Desegregation of public recreational facilities. Circuit Judges Hutcheson, Gewin and District Judge Hannay. Per curiam.
23. United States v. Dogan, Jan. 26, 1963, 5 Cir., 314 F.2d 767. Voter registration. Circuit Judges Rives and Wisdom, District Judge Bootle. Opinion by Judge Bootle.
24. City of Shreveport v. United States, 5 Cir., 1963, 316 F.2d 928. Airport desegregation. Chief Judge Tuttle, Circuit Judges Rives and Moore.* Per curiam.
25. City of Shreveport v. United States, 5 Cir., 1963, 316 F.2d 928. Bus terminal desegregation. Chief Judge Tuttle, Circuit Judges Rives and Moore.* Per curiam.
ADDENDUM TO APPENDIX A
Since the printing of this dissenting opinion by the Clerk on July 30, 1963, *361a less hurried examination of the published reports of eases decided during the period specified in the opinion has disclosed that four cases were inadvertently omitted from Appendix “A”. These were called to the attention of the other Judges of this Court by my letter of August 14, 1963. They are not included in the computations dealt with in Part III of the opinion.
Following are the four omitted cases: 2%. Abernathy v. Patterson, Oct. 31, 1961, 5 Cir., 295 F.2d 452. Enjoining “segregated” state courts. Circuit Judges Rives and Wisdom, District Judge Carswell. Opinion by Judge Rives.
7%. United States ex rel. Seals v. Wi-man, May 30, 1962, 5 Cir., 304 F.2d 53. Exclusion of Negroes from state grand and petit juries. Circuit Judges Rives, Brown and Wisdom. Opinion by Judge Rives.
21%. Coleman v. Kennedy, Feb. 13, 1963, 5 Cir., 313 F.2d 867. Voter registration. Circuit Judges Rives and Wisdom, District Judge Bootle. Per Curiam.
23%. Greene v. Fair, Feb. 18, 1963, 5 Cir., 314 F.2d 200. School desegregation. Chief Judge Tuttle, Circuit Judges Jones and Bell. Per Curiam.
On Petition for Intervention and Stay
Before WISDOM, GEWIN and BELL, Circuit Judges.
GEWIN, Circuit Judge.The Petition for Intervention and Stay of the operation of the plan of desegregation approved on August 19, 1963, by the United States District Court for the Northern District of Alabama is hereby denied. Morin v. City of Stuart, 5 Cir., 1939, 112 F.2d 585; Holland v. Board of Public Instruction of Palm Beach County, 5 Cir., 1958, 258 F.2d 730; St. Helena Parish School Board v. Hall, 5 Cir., 1961, 287 F.2d 376; McKenna v. Pan American Petroleum Corp., 5 Cir., 1962, 303 F.2d 778.
Under the original opinion and order of the U. S. District Court for the Northern District of Alabama1 and under the opinion of this Court rendered in this cause on July 12, 1963, Negro children have the constitutional right and the statutory right under the Alabama Pupil Placement Law to make application for transfer and enrollment free of racial discrimination. The issues involved here have long been settled by decisions of the U. S. Supreme Court. Law and order cannot be preserved by yielding to violence and disorder, nor by depriving individuals of constitutional rights decreed to be vested in them by the U. S. Supreme Court. Cooper v. Aaron, 358 U.S. 1, 20, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19 (1958).
We have no trouble in taking judicial notice of the fact that there are many upstanding, splendid, law-abiding citizens in Birmingham and throughout the State of Alabama who are so firmly dedicated to the principle of the orderly process of the courts and the law that they refuse to rebel against those laws which displease them. We also take judicial knowledge of the fact that violence and disorder have erupted in Birmingham. There is no indication that the great body of people of Alabama approve *362óf lawless conduct even though such conduct arises out of the enforcement of laws which change customs and traditions. The question now is not approval or disapproval of the law; but whether the law, order, and the educational process will prevail over violence and disorder. The howling winds of hate and prejudice always make it difficult to hear the voices of the humble, the just, the fair, the wise, the reasonable, and the prudent. We must not permit their voices to be silenced by those who would incite mob violence. “The best guarantee of civil peace is adherence to, and respect for, the law.” Watson et al. v. City of Memphis et al., 1963, 373 U.S. 526, 83 S.Ct. 1314, 1320, 10 L.Ed.2d 529.
“Patience is a great part of justice,” 2 but we are bound by the most recent statement of the U. S. Supreme Court in Goss v. Board of Education of the City of Knoxville, Tennessee (a unanimous opinion) 1963, 373 U.S. 683, 83 S.Ct. 1405, 1409, 10 L.Ed.2d 632, wherein the Court stated:
“In reaching this result we are not unmindful of the deep-rooted problems involved. Indeed, it was consideration for the multifarious local difficulties and ‘variety of obstacles’ which might arise in this transition that led this Court eight years ago to frame its mandate in Brown in such language as ‘good faith compliance at the earliest practicable date’ and ‘all deliberate speed.’ Brown v. Board of Education, 349 U.S., [294] at 300, 301 [75 S.Ct. 753, 99 L.Ed. 1083]. Now, however, eight years after this decree was rendered and over nine years after the first Brown decision, the context in which we must interpret and apply this language to plans for desegregation has been significantly altered.”
The writer of this opinion wishes to state that it has been and is now his feeling that the opinion of the U. S. District Court for the Northern District of Alabama as originally entered in this cause should have been affirmed for the following reasons:
1. The same was in full compliance with the decisions of the U. S. Supreme Court and of this Court.
2. The District Judge being a resident of the area involved is better qualified to consider and deal with “ * * * the multifarious local difficulties and ‘variety of obstacles’ which might arise in this transition.” 3
Under the opinion of the District Court for the Northern District of Alabama originally entered in this case; the opinion of the majority and the dissenting opinion released on July 12, 1963 by this Court; the opinion in Shuttles-worth v. Birmingham Board of Education, N.D.Ala.1958, 162 F.Supp. 372; the Supreme Court cases herein cited; and numerous other decisions of the U. S. Supreme Court and the various Circuit Courts of Appeal, the rights of the plaintiffs and those similarly situated to attend the schools which have been designated for their attendance is clear and unequivocal. Court orders, like constitutional rights, cannot yield to violence. In the present status of this case the Board of Education of the City of Birmingham, the present members of the Board and Theo R. Wright, Superintendent of Schools, their successors, etc. must comply with the plan of desegregation approved by the U. S. District Court for the Northern District of Alabama on August 19, 1963, in this cause.
A solution may be found in the following pronouncement by Mr. Justice Frankfurter in his concurring opinion in Cooper v. Aaron, supra:
“By working together, by sharing in a common effort, men of different minds and tempers, even if they do not reach agreement, acquire understanding and thereby tolerance of their differences.”
. A feature article dated at New Orleans and appearing in the public press of July 20, 1963, presents a widely held conception of the situation. Excerpts from that article follow:
“The U. S. Circuit Court for the Fifth Circuit has blazed new legal trails for nearly a decade in the deep south in the civil rights struggle for which Negroes are now demonstrating. * * *
“The Court’s ‘hard core’ majority has moved at every opportunity, within its appellate power, to implement this school decision. Its orders, some without precedent, forced the riot-triggering admission of James Meredith to the University of Mississippi last year.
“It often has moved ahead of the Supreme Court to use the 1954 decision as a guideline to order desegregation of other facilities — buses, terminals, libraries, city auditoriums, parks and playgrounds. * * *
“It has repeatedly overruled, and often sharply rebuked, Southern district court
judges wko have refused to accept or carry out the Supreme Court’s rulings. ♦ * *
“The split was exemplified by the Court’s recent 4r-4 deadlock over the issue of a jury trial for Mississippi Governor Ross Barnett on criminal contempt charges growing out of his defiance of its orders to integrate Ole Miss. * * *
“The four judges who opposed a jury trial for Barnett have stood together consistently in decisions on civil rights cases. They are Chief Judge Tuttle and Judges Richard T. Rives of Montgomery, Alabama, John Minor Wisdom of New Orleans, and John R. Brown of Houston. « * *»
These four Judges will hereafter sometimes be referred to as The Four.
. Two Guys from Harrison-Allentown, Inc. v. McGinley, 1959, 266 F.2d 427, 431-432, Note 6.
. After reciting its finding that those attending the public schools of Birmingham • had been cautioned not to stay away from school during the remaining weeks of the session, the order continues:
“This ■ Court was shocked to see hundreds of school children ranging in age from six to sixteen running loose and wild without direction over the streets of Birmingham and in the business establishments. It is due to the patience and good judgment of the people of Birmingham and the police officials particularly that no one was seriously injured on May 7, 1963, when the demonstrators were allowed by the police department and city officials of Birmingham to parade within a certain designated area, and the hundreds of school children in the parade refused to stay within the boundaries of the parade area, broke through the police and for some forty-five minutes ran wild civer the City of Birmingham.
“This Court cannot conceive of a Federal Court saying to the Board of Education of the City of Birmingham, made up of dedicated, courageous, honorable men that they should take no action under the circumstances and that the children who deliberately failed to attend school for some several days should not in any way be punished or penalised. White students in recent weeks have, been suspended or expelled from the Birmingham high schools for similar or lesser offenses. * * * This Court feels that the Board of Education of the City of Birmingham in its disciplinary problems deserves no interference from this Court so long as it stays within reasonable bounds. The Court has been assured by the Board of Education that proper officials are presently in the process of giving each and every student who has been notified that he has been suspended or expelled, a speedy, fair and comprehensive hearing, that the students have been notified of the specific charges brought against them which, if proven, would justify discipline or expulsion under the regulations or policy of the Board of Education.
“This Court has been advised that the suspension or expulsion of no child will be upheld by the school Board, after a hearing, due to prejudice, anger or in retaliation.
“The Court feels that this is borne out by the fact that the school Board in adopting its policy at the same time stipulated that all students, whether expelled or suspended, woud be allowed to make up the work that they had lost in summer .school. * * * Furthermore, the *355Court finds that suspension, pending a hearing and opportunity to make up the work in the summer in any event is not unduly harsh under the circumstances, taking into consideration the necessity of maintaining the morale and efficient operation of the school system.
“It is, therefore, at this time, ORDERED, ADJUDGED and DECREED that plaintiff’s motion for a temporary restraining order be, and the same is hereby denied.” [Emphasis added.]
. The entry made on the Minutes of the meeting of the Judicial Council for the Fifth Circuit in New Orleans on May 29, 1963 follows:
“The power of a single Circuit Judge to act in certain instances including the power to grant injunctive relief was next discussed. It was not possible to resolve the question of power by rule or otherwise due to an even division among the members of the Council as to the presence or absence of such power, and because some felt that it was not the appropriate subject matter of a rule.”
. The order, as it appears in the file of the Stell case, is as follows:
“It is ORDERED that the above entitled and numbered cause be assigned for hearing at Atlanta, Georgia on Friday, May 24, 1963 before a panel consisting of Judges Tuttle, Rives and Bell.
Elbert P. Tuttle CHIEF JUDGE,
U. S. Court of Appeals, to be filed and entered as of 5/21.”
The panel before whom cases were being argued during the week beginning May *35720th was the one sitting at Houston, Texas composed of Judges Hutcheson, Brown and Lumbard.
. The only rules I can find relating to the assignment of cases and of Judges are Rules 35, 36 and 17:
“Rule 35. Assignment of Cases for Hearing
“1. Thirty days prior to the opening of a regular session of this court at Atlanta, Montgomery, Fort Worth, and Jacksonville, and thirty days prior to the opening of the various sessions at New Orleans, the clerk is directed to assign cases returnable at said places that are ready for hearing in such manner as may be most convenient to expedite the business of the court.
“2. Any appeal returnable at Atlanta, Montgomery, Fort Worth, Jacksonville, or New Orleans may be assigned for hearing at any other place of holding court for a more prompt hearing, on consent of the parties or on motion of either party or on the court’s own motion.”
“Rule 36. Assignment of Judges “It is ordered that whenever a full bench of three judges shall not be made up by the attendance of the associate justice of the Supreme Court assigned to the circuit, and of the circuit judges, so many of the district judges, as may be necessary to make up a full court of three judges, are hereby designated and assigned to sit in this court; provided, however, that the court may, at any time, by particular assignment, designate any district judge to sit as aforesaid.” “Rule 17. Docket
“The clerk shall enter upon a docket all cases brought to and pending in the court in their proper chronological order, and such docket shall be called at every term * * *»
. Rule 40, F.R.C.P. provides that precedence shall be given to actions entitled thereto by any statute of the United States.
. No. 3215, Jackson Division, Southern District, United States v. City of Mc-Comb, et al., order entered 11-9-61; No. C-3235, Jackson Division, Southern District, Reverend Clark et al. v. Allen Thompson, Mayor, et al., order entered 1-23-62; No. C-3312, Jackson Division, Southern District, United States v. State of Mississippi et al., order entered 9-5-02.
Of the Second Circuit, sitting by designation.
. In Judge Lynne’s original opinion it was stated:
“This Court will not sanction discrimination by them [the Superintendent and Board of Education] in the name of the Placement Law * * * ”
“Adequate time remains before the opening of the September, 1963, school term for the processing of applications for assignments or transfers in behalf of interested individuals. Jurisdiction of this action will be retained for the purpose of permitting the filing of such supplemental complaint, if any, as might be entitled to 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 issues tendered by any supplemental complaint will be given a preferred setting on the docket of this court and will be heard on five days notice to defendants.”-
. “Handbook for Judges” edited by Donald K. Carroll, American Judicature Society.
. ' See Goss v. Board of Education of the City of Knoxville, Tennessee, supra.