(dissenting).
The proposition that State law or ordinances are generally unenforceable when their operation is contrary to the Federal Constitution of course can not be disputed. However it is not true that every limitation or restriction of such a right is in all events subject to be struck down without determination of the law and facts then obtaining and giving rise to the enactment. In this case, the finding of the City Commission in its ordinance of August, 1949, which supplemented the general zoning ordinance of Birmingham of 1926, that in the prevailing situation "breaches of the peace, riots, destruction of property and life,” which nei*863ther the City nor other law enforcement officers could prevent, would follow attempts to violate the zoning restrictions, was entitled to some consideration. Even if the ordinance with such findings was nevertheless prima facie invalid upon constitutional grounds, the enactment should not have been destroyed unless and until the Court found that no sufficient danger was present to justify the dire apprehension of the 'Commission or to support its enactment. The Court could not judicially know, contrary to the findings of the legislative body, whether conditions in Birmingham were as declared by such body, though it is to' be hoped that such findings were and are exaggerated. However, if the findings were established by evidence, declining to enjoin the enforcement of the ordinance would only give primacy to true general welfare over private rights, — resulting from a determination of whose right should be subordinated, at least for the time being. To properly appraise the situation the Court should have heard the evidence offered in support of the legislative determination. Constitutionality may, and frequently does, depend upon particular circumstances. I disapprove the holding implying that whatever the danger to the public welfare, it must be suffered and endured when opposed by the assertion of a constitutional right to use one’s property without restriction. I do not understand Buchanan v. Warley, 245 U. S. 60, 38 S.Ct. 16, 62 L.Ed. 149, to require such a holding.
Other constitutional rights have been restricted because of the circumstances in which they were sought to be exercised. There comes to mind Mr. Justice Holmes’ oft repeated utterance in. Schenck v. U. S., 249 U.S. 47, 39 S.Ct. 247, 249, 63 L.Ed. 470, that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic”, and the principle of clear and present danger announced following it. Vested property rights (also constitutionally protected) have been forced to yield to zoning ordinances which were determined not arbitrary or unreasonable. Hadacheck v. Sebastian, chief of police of Los Angeles, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348; Pierce Oil Corp. v. City of Hope, 248 U.S. 498, 39 S.Ct. 172, 63 L.Ed. 381; Standard Oil Company v. City of Tallahassee, 5 Cir., 183 F.2d 410.
If the legislative finding that an emergency existed was to be overlooked or disregarded, the city should have been allowed to introduce evidence of the true situation. Thereupon the Court could have determined the foundation and extent of danger and adjudged accordingly.
On Petition for Rehearing
PER CURIAM.Rehearing denied.
Russell, Circuit Judge, dissents.