(dissenting).
With deference, I dissent from the majority opinion filed in this case.
I.
I would suggest at the outset that the majority is too much influenced by the decision of this Court in United States of America and Interstate Commerce Commission v. The City of Jackson and its Officers, 5 Cir., May 18, 1963, 318 F.2d 1. The specially concurring opinions of Judges Bootle and Ainsworth, in 320 F.2d 870, 5 Cir., July 18, 1963, tend to limit the broad sweep of the original opinion. For example, in the opinion of Judge Bootle upon rehearing, concurring in the result, it is stated:
“Upon a more careful study of the opinion in connection with the motion for rehearing, and in view of the opinion’s extensive comment and broad treatment I have decided to restrict the scope of my concurrence * * * ” Page 871 of 320 F.2d 1.
A good portion of the majority opinion in United States v. Jackson, supra, and particularly the “extensive comment and broad treatment” were devoted to dealing with constitutional questions arising under the Fourteenth Amendment and the Commerce Clause. As I understand these opinions, Judges Bootle and Ainsworth have withdrawn their concurrences in the portions of the majority opinion which rested upon constitutional grounds. This would, I assume, eliminate from the opinion in that case some parts which are quoted or relied upon by the majority in the instant case.
In my opinion, the case of Clark et al. v. Thompson, Mayor et al., U.S.D.C. Southern District of Miss., May 15, 1962, 206 F.Supp. 539,1 is more nearly in point in our solution of the questions discussed in the majority opinion in the case now before us. Here, of course, the court below did enter a declaratory judgment establishing the rights of the parties, merely withholding injunctive relief and retaining jurisdiction for the granting thereof, if it should subsequently turn out to be necessary. What Judge Mize wrote in Clark v. Thompson, now approved by us by our affirmance of the case and citing the opinion in it as authority, constitutes an excellent statement of the traditional view of the courts towards granting or denial of injunctions and, I think, gives us a good blueprint for action here:
“This is not a proper class action, and no relief may be granted other than that to which the plaintiffs are personally entitled. Whether this is a proper class action involves a question of fact. * * * The plaintiffs cannot make this a legitimate class action by merely calling it such. * * * The burden of proof on this issue was on the plaintiffs. * * * The plaintiffs failed to meet this burden. A class action cannot be maintained where the interests of the plaintiffs are antagonistic to and *209not wholly compatible with the interests of those whom they purport to represent. * * *” 206 F.Supp. 542.
We omitted from the foregoing quotation the authorities cited. One of them, Troup v. McCart, 5 Cir., 238 F.2d 289, expresses accurately the attitude of this Court in such matters, and clearly supports Judge Mize’s findings.
We quote further (206 F.Supp. pages 542-548):
“Voluntary segregation does not violate the Constitution of the United States which does not prohibit a municipality from permitting, authorizing or encouraging voluntary segregation. * * * [Citing a half column of eases.]
“A desire for a sweeping injunction cannot relieve plaintiffs of the obligation to comply with the general rule that they must present facts sufficient to show that their individual needs require injunctive relief. * * *
“The Supreme Court of the United States, in the case of Bailey et al. v. Patterson et al., 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512, held that the issuance of an injunction was an extraordinary and unusual writ. This, of course, does not announce any new law. The granting of an injunction is discretionary and dependent upon the facts of each case. It should be granted with great caution, care and deliberation on the part of the trier of the facts, and the power to issue injunctions should not be lightly indulged in, but exercised sparingly, after thoughtful deliberation and the presence of an urgent necessity. See 28 American Jurisprudence, Injunctions, Section 25, p. 515. Quoting briefly from that authority, it lays down the rule as follows:
“ ‘The relief should be awarded only in clear cases, reasonably free from doubt, and when necessary to prevent great and irreparable injury.’ * * *
“The individual defendants in this case are all outstanding, high class gentlemen and in my opinion will not violate the terms of the declaratory judgment issued herein. They know now what the law is and what their obligations are, and I am definitely of the opinion that they will conform to the ruling of this Court, without being coerced so to do by an. injunction. The City of Jackson, a. municipality, of course is operated' by some of these high class citizens. I am further of the opinion that during this period of turmoil the time now has arrived when the judiciary should not issue injunctions perfunctorily, but should place trust in men of high character that they will obey the mandate of the Court without an injunction hanging over their heads.
“Neither the facts in the present case nor the exigencies of the situation are sufficient or urgent enough to require the granting of an injunction. * * * ”
II.
In the action taken by Judge Mize in the Clark case and in the language he used, the highest traditions of equity were, in my opinion, exemplified. Obedience of the law and of the will of the Court were accomplished without needless harassment, without classifying the defendants as persons who would not. obey the law unless forced to do so. A judge in a criminal case exercises the same wise discretion when, the facts justifying, he defers sentence upon one charged with having transgressed the law.
We have a like situation before us here. There are no citizens anywhere, including the individuals and the corporations, of greater integrity or dependability. The Judge who tried this case labored over it. a long time and on many different occasions. After he had made his findings of fact and conclusions of law, he permitted' the appellants to reopen the case as many times as they desired to raise questions *210of law and to supplement the facts by affidavit or other means of proof. He modified his findings and conclusions on more than one occasion. These supplementary proceedings occupy one whole volume of the record. Counsel were given full opportunity to differentiate and discuss all of the recent holdings of the Supreme Court.
As an illustration, one party argued that the language of the Supreme Court in its decision of this (Bailey v. Patterson) case, quoted from by the majority opinion, indicated inferentially the attitude of the Supreme Court as favoring what the majority has now decided. The other party was heard to take the attitude illustrated by this quotation from the supplemental hearings:
“In this case, the Court [Supreme] said this: ‘ * * * remand the case for expeditious disposition in the light of this opinion, of appellant’s claims of rights to unsegregated transportation service.’ Compare that with the language of the remand in the Turner v. [City of] Memphis case. There the Supreme Court said ‘The case is remanded to the District Court with directions to enter a decree granting appropriate injunctive relief against the discrimination complained of.’ ”
The trial court manifestly thought, from everything that transpired in court, from the demeanor of counsel and of the parties, that the appellees were merely urging upon it legitimate contentions as to the law and the fact; and, after all of the voluminous arguments, it entered this decree:
“IT IS ORDERED, ADJUDGED AND DECLARED as follows, to-wit:
“ (a) That each of the three plaintiffs has a right to unsegregated service from the restaurant at the airport.
“(b) That defendant, Cicero Carr, should not have any interest in or control over the restaurant facilities and the Jackson Airport in the future and should not be employed in any capacity in the operation of said facilities.
“(c) That the plaintiffs are not now entitled to any injunctive relief, but jurisdiction over this action and each of the defendants is hereby retained for the entry of such further orders and relief as may be subsequently appropriate. * * * ”
The trial court entered this order after finding categorically and in detail that everything complained of by the appellants had been corrected and that “there will be no re-occurrence of same,” that the parties had been fully advised what the law required of them and that an injunction was unnecessary.
III.
This action of the court below comes to us, I submit, with an unusual presumption of correctness and an unusual call upon us to sustain the trial court’s findings, conclusions and orders. Certainly the appellees had a right to contest all of the claims made by the appellants and to present their views fully and with all proper vigor. The appellants won their case and the appellees were taxed with costs in the court below. Their rights have been declared. The choice of means by which the court’s will should be enforced belonged, under our system, in the trial judge. He it is who knows local conditions and who must live with and enforce the law as he has declared it.
Something is said in the majority opinion about our knowing certain things judicially. Certainly we do not know them as well as does the judge below who has spent all of his days in the State of Mississippi and in close contact with the problems presented in this case. Should compliance with the law as it has been declared be enforced by the methods chosen by the District Courts or by more drastic methods which we might have invoked if we had been sitting in his place ? For my part, I think the answer to that is clear. I would support the judge in the field who knows the facts and knows best how obedience to the law and the mandate of the court can be accomplished. I think the law requires us, under the *211facts of this case, to support and affirm the action of the lower court.
Judge Gewin has stated much better than I can, the attitude I think we, as an appellate court, should take in this case. The problems before the Court were much like those facing us here; and I adopt what he said in his dissenting opinion in W. G. Anderson et al. v. City of Albany et al., 5 Cir., 1963, 321 F.2d 649.
I respectfully dissent.
. Affirmed in a per curiam opinion by this Court March 6, 1963, where this Court sub nom. Clark et al. v. Thompson, Mayor et al., 5 Cir., 313 F.2d 637, said:
“In this case the appellants complain of the judgment of the trial court refusing to grant an injunction and denying relief sought by way of declara- ♦ tory judgment in an alleged class action in wbicli it was claimed that they and others similarly situated were denied the use of public recreational facilities in the City of Jackson, Mississippi, solely upon the grounds of race and color. Upon a careful review of the record, we find ourselves in agreement with the conclusions reached by the trial court. Brown v. Board of Trustees of LaGrange Ind. Sch. Dist., 5 Cir., 1951, 187 F.2d 20; Clark et al. v. Thompson et al., D.C„. 206 F.Supp. 539.”