(dissenting)^
For the reasons hereinafter stated I cannot agree with my Brothers in this case. As I have tried to say in the past, and may say again in the future, people on both sides of the troublesome social problems that now seem imminent everywhere must realize, before it is too late, that neither side is entirely right nor entirely wrong. Complaints are justifiable both ways. There is too much unrestrained conduct; misplaced confidence in violence and the use of the sword; excessive and demanding impatience for overnight change; unreasonable obstinacy in refusing to yield on any point whatever; over-emphasis on the negative and “the wrongs of society”, with little or no thought of the good that is inherent in all people. Neither street demonstrations resulting in violence and hatred, nor the decrees of a court can calm the emotions of those on either side of any question, so long as those emotions are prompted and kept alive by a blind hate that refuses to see the good in others, or wrongs that do actually exist. It is not too late for good citizens, regardless of color, to begin to emphasize those rules of conduct which result in good manners, courtesy, and a reasonable consideration of rights and wrongs; and bring into sharp focus the good conscience that is common to most patriotic American citizens. It is not too late, I say, but time is running out. When all the demonstrations, mob actions and violence in the streets have ended; and when all of the court decrees have been rendered, the problem will not have been solved; and it will not be solved until the people themselves, in a spirit of good will, undertake a solution. The price we pay for hate, prejudice, obstinacy and violence is too high. They are worth nothing, and any -price paid for those unlawful and distasteful elements is too much. We must all realize that democracy is not a grab bag where the strong and swift are entitled to the most. So long as we continue to protect and nurture the tree of turbulence, we must eat its strange and bitter fruit. This is not intended to be a preachment or the assertion of a new idea, but an earnest plea to embrace again with a more fervent spirit the ideals of courtesy, respect, the responsibilities of citizenship, justice, domestic tranquility, and the blessings of liberty so well known to all people of the United States. If we fail, the bloody and obstinate contest will continue.
*659There are several reasons why I must disagree with my Brothers of the majority: (1) the opinion is contrary to the established law relating to class actions; (2) the presumption in favor of the findings of fact by the trial court has been disregarded, the clearly erroneous rule has not been followed, and the majority has made a choice of facts from a large volume of testimony where the facts are in conflict; (3) the rules of law with respect to the granting of injunctions have not been followed; and (4) the case is moot.
The trial court refused to issue an injunction in this case, because it stated that upon an examination of all of the testimony (1338 pages of testimony and 65 exhibits):
“There is a complete lack of evidence sufficient to sustain a contention that any one or more of the plaintiffs have been denied the use of any of the facilities referred to in their complaint because of their race or for any other reason, nor that when using such facilities that they have been compelled to use them on a segregated basis.”
It is fundamental that the plaintiffs cannot enforce Fourteenth Amendment rights for others in a class action if they have failed to prove that any of their rights as individuals have been denied. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512; McCabe v. Atchison T. & S. F. Ry. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169; Brown v. Board of Trustees, C.A. 5th, 187 F.2d 20; Kansas City, Mo., et al. v. Williams, et al., C.A. 8th, 205 F.2d 47; Clark v. Thompson, 206 F.Supp. 539 (D.C.S.D.Miss. 1962) aff’d 5 Cir. 1963, 313 F.2d 637.
All courts recognize the fundamental principle laid down in F.R.Civ.P. 52(a) that findings by a trier of facts will not be disturbed unless clearly erroneous. Thomas v. CIR, 5 Cir., 135 F.2d 378; Cedillo v. Standard Oil Co., 5 Cir., 291 F.2d 246; Pan American Petroleum Corp. v. Orr, et al., 5 Cir. 1963, 319 F.2d 612; Moore, Federal Practice, 2d Ed. 8129 § 73.07(3); Vol. 2B Barron & Holtzoff, Federal Practice & Procedure, (Rev. Wright) § 1133, p. 524. The trial court found as follows:
“We will next consider so much of the evidence as necessary to determine whether this is a proper class action. For the Plaintiffs to maintain this action under consideration it must appear that one or more of them had been denied the rights or suffered the injuries which they allege have been denied to and suffered by the class which they purport to represent. Upon examination of 1338 pages of testimony and 65 exhibits we find that there is a complete lack of evidence sufficient to sustain a contention that any one or more of the Plaintiffs have ever been denied the use of any of the facilities referred to in the complaint because of their race or for any other reason, nor that when using such facilities that they have been compelled to use them on a segregated basis. Nor is there any evidence that any one or more of the Plaintiffs have ever been arrested, threatened with arrest or harassed for utilizing or attempting to utilize the public parks, libraries, buses, bus depots, train stations, taxicabs, theatres and other places of public amusement in the City of Albany. There are four Plaintiffs. Two of them never testified concerning any matter during the course of the trial. The testimony of the two who did testify was deficient in the respect above indicated. The Court finds that the Plaintiffs have not been denied the rights nor suffered the injuries referred to in the complaint. This being so, the Plaintiffs lack standing to seek injunctive relief for others who may have been injured, because the Plaintiffs cannot represent a class of whom they are not a part.” (Emphasis in the original)
In my opinion no one can examine the vast amount of testimony and the 65 exhibits involved and come to the conclusion *660that the above quoted finding of the trial court is clearly erroneous.1
The main thrust of the complaint related to segregation in the public parks, *661libraries, buses, bus depots, train stations, taxicabs and theatres in the City of Albany. This case was originally docketed in this Court upon a motion of the appellants for an injunction pending appeal, but it was actually argued, submitted and heard on the merits. The motion for injunction pending appeal, however, "brought before the court a number of affidavits relating to the status of the various public facilities mentioned in Albany, Georgia, at the time of oral argument. It is admitted that all ordinances of the City of Albany requiring segregation of the facilities mentioned have been repealed. It is unreasonable to justify the issuance of an injunction on the ground asserted by the majority to the effect that repeal of the ordinances constitutes proof that they may be re-enacted. There is no evidence in the record showing any intention on the part of the authorities in Albany, Georgia, to reenact segregation ordinances. As stated by this court in Brown, supra:
“Such an injunction requiring detailed and continuous supervision over the conduct of a political subdivision is not congenial to equitable principles and practices and will not usually be granted.”
Injunctions should be sparingly issued at all times; but greater caution and care should be exercised where political subdivisions are involved as pointed out by this court in the Brown case. Trial courts traditionally have very broad discretion as to the granting of injunctions. See also Mack, Inc. v. General Motors Corp., 7 Cir. 1958, 260 F.2d 886; Miami Beach Fed. Savings & Loan Asso. v. Callender, 5 Cir. 1958, 256 F.2d 40.
Counsel for the appellants forthrightly admitted in oral argument that all of the ordinances relating to segregation had been repealed; that the library had been desegregated; that certain parks and swimming pool facilities which had heretofore been segregated, had been closed and sold; that the bus company about which complaint was made is out of business, but the ordinance requiring segregation on buses has been repealed; that no problem exists as to the bus depot or train station; and that ordinances relating to segregation in theatres and taxicabs have been repealed. The case of the City of Montgomery v. Gilmore, 5 Cir., 277 F.2d 364, cited by the majority, is no authority for the action taken by the majority in this case. In support of its position in citing the City of Montgomery case, the opinion of the District Court in the same case, 176 F.Supp. 776, is cited. By reference to that opinion, it will be seen that the ordinance there under attack had not been repealed. The parks had been closed subject to the determination of the City to open them at any moment while the segregation ordinance still remained the law of the City *662of Montgomery. Such is not the case here.
In my opinion, all of the issues raised on this appeal have now become moot. There is no evidence in the record which leads to a conclusion that there is any probability that such conditions will come about again. As pointed out by the Supreme Court in United States v. W. T. Grant Co., et al., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303, in a case involving a different situation, the rule is as follows:
“But the moving party must satisfy the court that relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.” (Emphasis added.)
The recent case of Clark v. Flory, 4 Cir. 1956, 237 F.2d 597, is directly in point. It was there held:
“ * * * in view of the fact that the park had been closed by act of the legislature, there was no basis for the issuance of an injunction with regard to its use. Under such circumstances, the case had become moot and its dismissal was proper.”
As justification for requiring injunc-tive action, counsel for the appellants assert that the state has a duty to require private individuals who operate any type of facility used by the public to desegregate such facility by means of affirmative action on the part of the state. When asked by the court if such idea was a new one, counsel readily admitted that the idea is new; but referred to a New York statute which provides for a penalty to be imposed on private individuals who practice segregation. Even if such a statute could be considered constitutional, it is not the function of the courts to legislate. Voluntary segregation is legally permissible; and the law does not require compulsory integration.
Based on the facts now known to the court, and for the reasons stated, I would affirm the judgment of the lower court.
. We will not undertake to point out all of the factual errors in the majority opinion, but cite S typical examples:
(a) The majority opinion gives the impression that the city authorities made mass arrests of Negroes solely because they were undertaking to peacefully protest segregation policies. The following quotations from the evidence show that this is not the case:
“Q. Do you know whether or not any of your police equipment and cars have received any injury?
“A. Yes, we’ve had cars damaged to the extent of their beacon light, their red signal lights on top were smashed; bricks throwed against the sides of the cars, while they were observing these meetings.
“Q. Did anything ever happen to your paddy-wagon?
“A. Yes, during one of these meetings which was held at Kolkee Church, Third Klokie, which is located in the south part of town, the paddy-wagon’s mirror was splashed by gun-shot and the paddy-wagon was set on fire by groups of people while the officers were out trying to disperse the crowd.
*****
“A. In conversation with Dr. W. G. Anderson, he informed me in December prior to one of these marches, prior to the last march I think, when he was arrested along with Dr. Martin Luther King and Dr. Ralph Abernathy, in a conversation with me by phone, that they would not abide by our laws, that if those people were not turned out of jail and if their demands were not met by the City, that they would bring a thousand up here to the City; and my answer to him was, that if you intend to violate our City ordinances and our laws, the only thing I request of you is that you get in front of them and lead them.
*****
“A. We had a group of 40 to come, of which 23 of those were juveniles, to march from the church. Larger groups come out of the church in the march but when they reached the intersection of Oglethorpe and Jackson, those people stayed on the corners and did not come across. These people were arrested for the same thing, and then in turn the crowds on the corner that night were in excess of 3- to 4,000 Negro people, which necessitated the use of every man that I had under my command, to enter Harlem to try to restore peace, at which time officers of my Department were struck with bottles, officers of the State Patrol were struck with rocks, knocking out teeth, and at which time we had to disperse this crowd and move them back a block or block and a half away from there in order to relieve the tension and in order to prevent violence, more so than which we had had. The bottles were raining on us like mortar shells coming into the middle of the street, rocks and bottles. Our men were standing fast, giving voice commands. At no time was our sticks, our night sticks taken off of our belts. We tried our best to control this mob without violence on our part, to let them know the only thing we were there for was to see that the peace and quiet of the City and no violence was caused, and in return we were greeted with rocks and bottles, striking my officers and officers under my command.
*****
“Q. During the marches in December, 1963, can you give us an estimate as to how long traffic was blocked, if it was blocked?
“A. On various marches, all of the marches, on the 12th I would say 2 hours or better; on the last march, which was on — that Dr. Martin Luther King and Dr. Abernathy and Dr. W. G. Anderson taken part in — it was probably from 6 o’clock until 10:00 or 11:00 before we returned to normal conditions in the City of Albany.”
(b) The following statement relating to the use of the City Auditorium is from the majority opinion:
« * * * the record clearly shows that the practice and custom carried out l>y the City required such (segregated) seating.” (Emphasis added)
The following quotations from the evidence disprove the quoted assertion:
“Q. Now, let me ask you this: What is the racial policy of the City of Albany with respect to the use of that auditorium?
“A. There is no ordinance or resolution relative to segregation or integration at the auditoi-ium.
“Q. Now, what is the custom with respect to seating in the auditorium of the Oity of Albany?
“A. The custom is determined by the person using the auditorium, the person or the organization using the auditorium. Frankly, I don’t recall any use of the auditorium recently by the City itself. Now, it’s used on many occasions by organizations. It’s used on many oc-*661easions by Negro as well as white groups and, of course, we turn down the use or applications for the use of the auditorium on occasions; hut it’s done, not on the basis of integregation or segregation, but it’s because we think that the organization trying to use it would do more harm to the City than any possible good that could be served.
“A. * * * I asked the City Manager this morning, in the presence of one or two of the Commissioners, to refresh my recollection as to how a person goes about getting the use of the auditorium; and it was pointed out at that time that the organization or group using it determines whether it will be segregated or integrated, if that’s what you mean?
“Q. In otber words, the policy of the City is to let the lessee determine whether the affair will be segregated or integrated, is that it?
“A. I know of no policy of the City. That’s been the practice that’s been followed, yes.”
(c) The opinion asserts that Negroes were arrested “ * * * merely because they were present in the bus station’s areas formerly reserved for white persons.” This assertion completely ignores the fact that a police officer had recently been killed by a Negro in the vicinity of the bus station. The temper of the people at this time and place did not tolerate delay for debate on the niceties of Constitutional law. Police officers had to act and act quick in order to avoid violence and bloodshed.