(specially-concurring) :
The majority rests decision upon the easy pronouncement that “under the ‘private attorney general’ doctrine, an award of attorneys’ fees should be made to a litigant who (1) furthers the interests of a significant class of persons by (2) effectuating a strong congressional policy”. The many cases and commentators indicate no such general test, and I decline to uncritically join in giving it currency. Instead, in reaching my conclusion, I choose to follow a well established rule having clear guideposts.
The material facts are undisputed. The Legislature of Hawaii, at its regular session in 1971, enacted a bill which imposed a one-year durational residency requirement as a condition of eligibility for public assistance benefits provided by the State.
Shortly afterward Brandenburger, personally and as representative of a purported class, commenced this suit under 42 U.S.C. § 1983, against the State Director of the Department of Social Services, whose duty it was to administer the statute. Relying upon Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), he charged that the one-year requirement violated the equal protection provision of the Fourteenth Amendment; he requested in-junctive relief and, in addition, a monetary allowance for the services of his attorneys in the litigation.
At the request of the district judge, a three-judge court was duly created to hear and determine the cause; but before the matter went to trial, he issued an order to the defendant to show cause why, in the light of the rule in Shwpiro, defense of the action would not be frivolous. Defendant immediately capitulated and stipulated to entry of a judgment striking down the residency requirement ; however, the matter of attorneys’ fees was reserved for decision.
The judge denied the fees. His reasons are not entirely clear. He filed no written opinion, but his oral observations tend to indicate that decision was rested variously upon a supposed lack of power, a view that although power existed, no award should be made because no bad faith was shown, or a belief that an allowance of attorneys’ fees was largely impermissible where, as here, the litigation was prosecuted without charge to Brandenburger by the A.C.L.U. This appeal followed.
(1) Section 1983, upon which plaintiffs’ action was predicated, contains no provision for attorneys’ fees. However, this does not end the inquiry. The Supreme Court, only recently, in Hall v. Cole, 412 U.S. 1, 4-5, 93 S.Ct. 1943, 1945, 36 L.Ed.2d 702 (1973), has carefully pointed out that:
“[ajlthough the traditional American rule ordinarily disfavors the allowance of attorneys fees in the absence of statutory or contractual authorization, federal courts, in the exercise of their equitable powers, may award attorneys fees when the interests of justice so require. Indeed the power to award such fees ‘is part of the authority of the chancellor to do equity in a particular situation.’ Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 780, 83 L.Ed. 1184 (1939), and federal courts do not hesitate to exercise this inherent equitable power whenever ‘overriding considerations indicate the need for such a recovery.’ Mills v. Electric Auto-Lite Co., 396 U. S. 375, 391-392, 90 S.Ct. 616, 625, 24 L.Ed.2d 593 (1970).” (footnotes omitted)
*891And a number of federal courts have, and I think correctly, held that this “inherent equitable power” to award attorneys’ fees extends to suits under Section 1983 and related statutes. See Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971); Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972); Callahan v. Wallace, 466 F.2d 59 (5th Cir. 1972); Donahue v. Staunton, 471 F.2d 475 (7th Cir. 1972). See also, Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972). Thus I conclude that, to the extent judgment was predicated upon a lack of power, the court was in error.
(2) Whether attorneys’ fees should be awarded in a proper case, of course, in■volves a determination of the equities and, generally, an exercise of discretion.
“[I]t is unquestioned that a federal court may award counsel fees to a successful party when his opponent has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Hall v. Cole, supra.
Here, the district court concluded that defendant had not acted in bad faith. Such a finding would perhaps be correct with respect to defendant’s conduct in the lawsuit itself. But the real inquiry, as Brandenburger argues, should be upon the defendant’s conduct which precipitated this litigation, with particular attention to the question whether Shapiro was dispositive and, if so, whether defendant’s failure to follow that decision constituted bad faith. I conclude that the answer is “yes.”
In Shapiro, the Supreme Court struck down statutes of several jurisdictions1 which contained requirements identical to those appearing in the Hawaii statute. The Court’s rationale, in substance, was that the durational residency requirement violated the Equal Protection Clause of the Fourteenth Amendment, because it created an impermissible classification between short- and longer-duration residents which was not justified by a compelling state interest. In answer to the defendant’s argument that discouraging the influx of potential welfare recipients protected the fiscal integrity of their welfare programs, and that this purpose constituted such a compelling interest, the Court responded:
“We do not doubt that the one-year waiting-period device is well suited to discourage the influx of poor families in need of assistance.
“An indigent who desires to migrate, resettle, find a new job, and start a new life will doubtless hesitate if he knows that he must risk making the move without the possibility of falling back on state welfare assistance during his first year of residence, when his need may be most acute. But the purpose of inhibiting migration by needy persons into the State is constitutionally impermissible.” 394 U.S. at 629, 89 S.Ct. at 1328.
The Court further emphasized:
“We recognize that a State has a valid interest in preserving the fiscal integrity of its programs. It may legitimately attempt to limit its expenditures, whether for public assitance, public education, or any other program. But a State may not accomplish such a purpose by invidious distinctions between classes of its citizens.” 394 U.S. at 632, 89 S.Ct. at 1330.
I cannot accept the defendant’s argument that the justification for the Hawaii residency requirement differs in any material respect from that unsuccessfully asserted by the defendants in Shapiro. True, the Hawaii legislative committee stated that it “has . carefully considered [its] legislative findings in light of Shapiro v. Thompson * * * . If the sole purpose of the waiting-period requirement is designed to serve no greater purpose than to deter in-migration to Hawaii, it would seem, then, to be clearly unconstitutional.” However, the Committee, *892having paid lip-service to Shapiro, went on to say that:
“Your Committee looks upon the proposed residency requirement as a protective device not only to preserve the fiscal integrity of the State public assistance program, but as a source of relief upon the strain placed upon the State’s general revenues necessary to provide other essential services also.
* * * The Court in Shapiro does not define what constitutes a ‘compelling state interest.’ Even though, in our support of the residency requirements we are not endeavoring thereby to deprive the truly needy of shelter, food, and clothing necessary to sustain him through a temporary hardship during the waiting period. However, we are firm in our resolve that there should be exempted from the public welfare rolls those individuals who are capable of earning a living wage but scheme their way into the taxpayer generosity of our citizens.
It is essential that some means be found to decrease and reverse the rate of influx of transients who arrive in the State with insufficient funds with which to support themselves and who almost immediately, refusing to seek employment, turn to public assistance for support.
Your committee finds that the only effective method by which this can be accomplished is for the State to exercise its right to spend its financial resources as it sees fit by limiting general assistance benefits to those residents who have been in the State for a period of at least one year.”
In substance, this latter statement offered the same reasons in support of the Hawaii statute as those emphatically rejected by the Court in Shapiro. As in Shapiro, the Hawaii statute created what “in effect was [a] nonrebuttable presumption that every applicant for assistance in his first year of residence came to the jurisdiction . . . ” for the purpose of collecting welfare benefits to which he should not be entitled. Shapiro, supra, 394 U.S. at 631, 89 S.Ct. at 1330. If the State’s goal is deterring fraud, “it is unreasonable to accomplish this, objective by the blunderbuss method of denying assistance to all indigent newcomers for an entire year.” 394 U. S. at 637, 89 S.Ct. at 1333. Neither can the State’s other stated objective, to-wit, to encourage new residents to seek work, justify the residency requirement. 394 U.S. at 637-638, 89 S.Ct. at 1333.2
Moreover, the fact should again be noted that the Hawaii statute was not a pioneer; nor could the defendant justify his refusal to honor claims in the reasonable belief that the statute was valid. In sum, the conclusion is manifest that defendant’s enforcement of the statute, in the face of Shapiro, constituted bad faith as a matter of law.3
(3) That Brandenburger was under no legal obligation to pay his attorneys a fee for services is no bar to an award.
As the Fifth Circuit pointed out in Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970):
“What is required is not an obligation to pay attorney fees. Rather what — and all — that is required is the existence of a relationship of attorney and client, a status which exists wholly independently of compensation, as witness the effective service of counsel in the defense of criminal cases, *893the assertion of post-conviction habeas remedies, and the now widespread organized services on behalf of the poor.
Any other approach would call either for a fictional formal agreement by persons legislatively recognized as frequently unable to pay for such services . . . or a frustration of the congressional scheme to effectuate the policies of the Act through private suits in which, of course, an attorney is a practical necessity.” 426 F.2d at 539.4
See also, Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971); Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971). Since it is the policy of the courts in such cases to grant fee awards, at least in part, to encourage the bringing of such lawsuits, I agree with the Fifth Circuit that it should be the attorney-client relationship, rather than any formal fee arrangements, which affords the basis for fees in an otherwise proper case. To prevent any unjust enrichment of a party, the court can always exercise its equity powers to “assure that the fees allowed are to reimburse and compensate for legal services rendered and will not go to the litigants . . . ” Miller, supra, 426 F.2d at 539.
In sum I conclude that the district court possessed the power to award counsel fees in this case; that the relationship between plaintiff and his attorneys was such as to permit the award of such fees; that the refusal to make an allowance constituted an abuse of discretion;5 that the judgment, so far as it disallows attorneys’ fees, should be accordingly reversed; and the cause remanded to the district court with directions to-determine a reasonable fee and to enter judgment for plaintiff.
. Connecticut, Pennsylvania, and the District of Columbia.
. Nor did it make any difference on the constitutional issue that the Hawaii welfare program was entirely state funded, rather than federally assisted. Pease v. Hansen, 404 U.S. 70, 92 S.Ct. 318, 30 L.Ed.2d 224 (1971) (per curiam) ; Cf. Edwards v. California, 314 U.S. 160, 175, 62 S.Ct. 164, 86 L.Ed. 119 (1941).
. The then Attorney General, in fact, issued a legal opinion immediately prior to the time the bill was signed into law in which he expressly advised the Governor that the residency requirement was invalid under Shapiro.
. Miller, it is true, arose under the 1964 Civil Rights Act, which includes a provision authorizing fee awards [42 U.S.C. § 2000a-3(b)], but that fact is irrelevant to the court’s discussion of fees to pro bono counsel inapplicable to this case. Section 1983, like the 1964 Act, has as its purpose the vindication of individual constitutional rights. Suits to enforce these rights under section 1983 can be brought only by individuals; there is no provision in the statute for government-initiated litigation. In many injunc-tive suits brought under the statute (where there is no possibility for damage awards to attract private attorneys), the plaintiffs are indigents, putting both private and pro bono lawyers in essentially the same situation— they cannot realistically look to their clients for payment for either legal services or other litigation costs. Whatever they might expect to receive as a fee for services would come only from the defendant, via court-awarded counsel fees.
In this action, for example, the plaintiffs are welfare recipients. liad they entered into a fee arrangement either with a private or a “charity” lawyer, such arrangement could have been largely illusory, except to the extent that it might provide that counsel would receive whatever fees the court might award.
. In light of my conclusion that the record manifests the defendant’s bad faith, I have no occasion to consider Brandenburger’s alternative theory for recovery of counsel fees, i. e., that Brandenburger acted as a “private attorney general,” vindicating strong public policy. See, e. g., Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) ; Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971) ; Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) ; La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972). Cf. Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972) ; Callahan v. Wallace, 466 F.2d 59 (5th Cir. 1972) ; Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971) ; Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970) ; Hall v. Cole, 412 U.S. 5-6, n. 7, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973) ; Northcross v. Board of Education, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973).