(concurring in part and dissenting in part):
To the extent that the majority holds that it was not error for the district court to dismiss the amended complaint as to the State of Mississippi, I concur. I also agree that the judgment should be amended so as to extend the injunction to the successors in office and to require the filing of monthly reports. However, with all deference, I must -dissent on the issues relating to the failure to find that the discrimination was pursuant to a pattern or practice and to the refusal to grant relief based on freezing.
This case reveals gross and flagrant denials of the rights of Negro citizens to vote. The defendant registrar took office in 1953. At the time of trial there were approximately 6000 voting age whites and approximately 3000 voting age Negroes in Clarke County, Mississippi. Of these, approximately 5000 whites and only 3 Negroes were registered to vote. *834The district court found1 that around 1500 such registrations involved the illegal registration of unqualified persons or persons who did not take the trouble to go to the registrar’s office.2 The court found that “substantially all” of these instances involved white citizens. The names of five Negroes were added to the rolls without their knowledge, but admittedly for the purpose of avoiding an all-white jury in the trial of a Negro for murder — some of these names were later stricken. Although less than a dozen different Negroes had tried to register since defendant had been in office, the court stated that defendant told eight of them in each instance to go home and think it over in light of existing racial problems in other parts of the country.3 The court observed: “The inescapable effect of what he said and did on such occasions was to deny those negro citizens of their right to be examined for registration and it cannot be otherwise regarded.” The court went on to note that the only three Negroes who were registered4 were required to take the statutory test and had to wait several days before being advised of having passed. On the other hand, not all whites had to take the test, and whites were not required to wait. Although white citizens were allowed to register for other members of their family who were not even present, the wife of a 76-year-old Negro who was not physically able to sign his name was not allowed to register for him, nor did the defendant registrar furnish to one physically disabled the assistance required by the Mississippi Constitution, section 244.
The district court concluded:
“The Court finds as a fact from the evidence that negro citizens, however, have been discriminated against by the registrar in not according such citizens the statutory right to take such tests to determine whether or not they possess the qualifications to entitle them to register to vote * * *. He did deliberately and improperly deny adult negro citizens who were residents of the county the right to take the legal test for registration. He did nothing to encourage or aid or assist ne-groes in registration as he did white people *
Despite these findings of discrimination the district court specifically held that “no pattern or practice of discrimination based on race is shown to exist in this case but such deviations from the law were practiced among both races * * *. [N]o pattern or practice of the registrar in such respect [failing to assist Negroes as he did whites] is established by the evidence in this record within the purview of the act.” 5
In the face of all this, the majority opinion affirms because “we feel it was within the District Judge’s discretion to omit action on that phase of the complaint (United States v. Raines, D.C., 203 F.Supp. 147 (1961)). * * * [T]he District Judge obviously thought it best *835■not to make a specific finding that there was a ‘pattern.’ We do not believe that by the language of subsection (e) of 42 U.S.C.A. § 1971 the Congress of the United States intended to impose upon the ■district courts the mandatory duty of making a finding as to whether a previously found deprivation of rights or privileges was or is pursuant to a pattern ■or practice, regardless of the District Court’s opinion as to the necessity or non-necessity of making such a finding.” (Emphasis added.) Since the district court in the instant case clearly held that no pattern or practice existed,6 the majority opinion is apparently holding that it was an abuse of the district judge’s ■discretion to make any ruling at all — ■ despite the majority’s eloquent plea for hroad powers of discretion.'7
In addition to the majority’s paradoxical treatment of the district court’s finding of no pattern or practice, I am convinced that there is a mandatory duty on the district court to make some finding ■as to pattern or practice and that United •States v. Raines, supra, was incorrectly ■decided. It is clear that discretion must .give way when there is a specific statutory mandate. Subsection (e) of 42 U.S. ■C.A. § 1971 provides in no uncertain "terms that: “ * * * the court shall •upon request of the Attorney General ••and after each party has been given notice and the opportunity to be heard make ■a finding whether such deprivation was or is pursuant to a pattern or practice.” ■(Emphasis added.)
The word “shall” when used in a statute is usually mandatory, the language of command, unless the legislative history and the policy of the act indicate otherwise. See Escoe v. Zerbst, 1935, 295 U. S. 490, 493-494, 55 S.Ct. 818, 79 L.Ed. 1566; Peoples Securities Co. v. SEC, 5 Cir. 1961, 289 F.2d 268, 274. Legislative history and policy considerations uniformly indicate that “shall” was used in this subsection in the mandatory sense.8 It was intended by Congress that a finding of a pattern or practice of discrimination would have two effects: (1) it would serve as a conclusive presumption of discrimination in later applications to the court for qualification to vote, and (2) it would allow the court, should the judge so choose, to make use of the voting referee procedure.9 Deputy Attorney General Walsh stated to the Senate Judiciary Committee that under this section the court, upon request, “must make a finding as to whether the discrimination was pursuant to a pattern or practice.” 10 Similarly, Representative Willis, on the floor of the House, observed: “[W]hen an injunction suit is filed and an injunction decree is issued, the judge, upon application of the Attorney General, must make a finding as to whether or not the alleged discrimination is pursuant to a pattern or practice.” 11 The Report of the Senate Committee on the Judiciary makes quite clear the mandatory nature of the finding: “Under the revised ref-, eree plan as contained in H.R. 8601 the court would, upon request of the Attorney General in cases brought to enforce voting rights guaranteed by the 15th amendment, be obligated to make a supplemental finding as to whether the vot*836ing deprivations are pursuant to a pattern or practice.” 12 (Emphasis by the Committee.) In suggesting that an enrollment officer plan be added to the referee plan already in the bill, the Committee noted that under the enrollment officer plan the court “is not required to make a finding that the deprivation of voting rights is done pursuant to a pattern or practice as would be the case under the court referee proposal.” 13 (Emphasis added.) Moreover, Senator East-land, on the floor of the Senate, stated in unmistakable terms:
“Then a new step comes into play: The Attorney General requests that the Court make a finding as to whether a pattern or practice of discrimination exists. This is mandatory on the Court. He must make such a finding.” 14 (Emphasis added.)
This clear legislative intent is supplemented by a similar interpretation placed on the subsection by the three-judge district court in United States v. Manning, supra.15 It is significant that neither the majority opinion in this case nor the opinion in Raines cites any legislative history tending to show a contrary intent.
Moreover, the policy of the subsection favors lack of delay in the processing of applications for qualification and in the use of the voter referee plan.16 Thus the finding as to pattern or practice was made mandatory not only to bring the presumption of discrimination and the referee plan into play, but also to meet the warning of Senator Hart: “[W]e ought to eliminate, so far as we can, the delays and difficulties in the operation of that device [subsection (e)].”17 Plaintiffs in civil rights cases, especially voting cases, have already found themselves plagued with unnecessary and unwarranted delays in the trial courts. See the carefully documented Comment, Judicial Performance in the Fifth Circuit, 73 Yale L.J. 90 (1963). Speaking for the Court in United States ex rel. Goldsby v. Harpole, 1959, 263 F.2d 71, 78, 79, I commented:
“We have called the figures startling, but we do not feign surprise because we have long known that there are counties not only in Mississippi, but in the writer’s own home State of Alabama, in which Negroes constitute the majority of the residents but take no part in government either as voters or as jurors. Familiarity with such a condition thus prevents shock, but it all the more increases our concern over its existence.”
More than five years have elapsed since that decision, but the statement still holds true with improvement only minuscule. Concern over such delays has led to a bill now before Congress which would provide, upon request, three-judge courts in voting eases and which would require the district court “to assign the ease for hearing at the earliest practicable date and to cause the case to be in every way expedited.” 18 Failure to require a rul*837ing on pattern or practice will only add another opportunity for delay.
There can be no doubt that the district judge’s finding of no pattern or practice was clearly erroneous. The legislative history of subsection (e) reveals that a pattern or practice exists when the discrimination is not an isolated or accidental or peculiar event, but part of the regular procedure, the usual situation.19 The number of Negroes actually turned away or discriminated against may be small.20 Here, the trial court’s own findings of discrimination conclusively show that a pattern or practice existed.
I also dissent from the majority’s failure to grant relief based on freezing. Freezing results when there have been past discriminatory practices in the registration process, these discriminatory practices are discontinued, but new and more onerous requirements are imposed. While theoretically applicable to all, these new requirements primarily affect those who bore the brunt of previous discrim-inations and tend to maintain the position of advantage which one class has already obtained over the other. See United States v. Louisiana, E.D.La.1963, 225 F.Supp. 353, at pp. 391-398 (three-judge court); United States v. Atkins, 5 Cir. 1963, 323 F.2d 733, 743-745; cf., United States v. Dogan, 5 Cir. 1963, 314 F.2d 767. Prior to this suit approximately 5000 out of 6000 voting age whites had been registered to vote, but only 3 out of approximately 3000 voting age Negroes had been registered. A large number of these whites would not have been able to meet the strict standards for registration required by Mississippi law.21 Yet the district court required the registrar to apply these standards to most all of the Negro voting-age population and the few whites who were not already registered. (See Appendix A to the majority opinion.) The freezing effect is obvious.
If the district court had found that the discrimination existed pursuant to a pattern or practice, then, in accordance 'with subsection (e), applications by Negroes subsequently rejected by the registrar would be filed with the district court (or at the court’s direction with the voting referee). These applicants would not have to meet qualifications “more stringent than those used by the persons found in the proceeding to have violated subsection (a) of this section in qualifying persons other than those of the race or color against which the pattern or practice of discrimination was found to exist.” 42 U.S.C.A. § 1971(e). *838Thus the district court’s order requiring the use of the stricter standards for applications to the registrar than for applications to the court would be neither good judicial husbandry nor compliance with the intent of the statute.22
The majority opinion meets the problem of freezing by pointing out that since the time the judgment of the district court was entered the defendant registrar has not discriminated against Ne-groes and some 24 whites have been removed from the poll books. But the nondiscriminatory use of the stricter standards does not rectify the freezing effect caused by past injustices,23 and the limited purging is but a meager start to a monumental task. Yet the majority' goes on to say:
“We feel the people of Clarke County will see that this matter is handled harmoniously and without discrimination. Mississippi law provides adequate remedies for the purging of these improperly registered voters, and a proper reinvigoration of state responsibility it is hoped will make unnecessary any further incursion of federal authority into Clarke County.
“It is only when a State shirks its responsibility that the federal government enters the picture.” (Emphasis supplied.)
But the state and its subdivision have shirked their responsibility — the prior violations of both the federal and state constitutions are appalling. The cessation of these discriminatory practices is hardly an indication that a renaissance has taken place, for the registrar was acting under the threat of an injunction and the past discrimination has securely been sealed into permanent existence. The Constitution and the Civil Rights Acts afford citizens far more than barren hopes that some day their right to vote will materialize through the voluntary actions of previously irresponsible officials.
. The opinion is reported at S Race Rel. L.Rep. 150.
. The court theorized that in some cases the candidates for office may have been responsible for the appearance of the names. In Mississippi, the registrar of voters is an elected office.
. There is evidence to the effect that he later told a group of Negroes that it had been decided not to let Negroes register to vote. Most of the Negroes who tried to register did so on more than one occasion. The fact that more did not attempt to register might be explained by the fact that the discrimination against those who did try probably discouraged others from trying. See United States v. Manning, W.D.La.1963, 215 F.Supp. 272, 288 (three-judge court).
This is not counting those whoso names were added for the purpose of the murder trial.
. In addition to these statements quoted from the “Finding of Facts and Conclusion of Law,” the “Judgment” of the court expressly ruled: “no pattern or practice of said registrar within the purview of the Civil Rights Act is shown to exist in this case.” The order stated: “the plaintiff is entitled in equity only to the relief herein expressly granted against the county registrar and all relief not expressly granted is expressly denied * *
. See note 5, supra, and accompanying text. In the Raines case, relied on by the majority, there was no such ruling on the existence of a pattern or practice.
. Surely the majority does not mean to suggest that a district judge has discretion to rule that no pattern or practice existed, when the facts found by the district court demonstrate that there was such a pattern or practice.
. Cf. United States v. Wood, 5 Cir. 1961, 295 F.2d 772, 783, holding that “shall” in subsection (d) creates a mandatory duty on the district courts to exercise jurisdition of proceedings under 42 U.S.C.A. § 1971. See also United States v. Dogan, 5 Cir. 1963, 314 F.2d 767, 771-772.
. See generally, 106 Cong.Rec. 5773 (remarks of Representative Celler).
. Hearings on H.R. 8601 Before the Senate Committee on the Judiciary, 86th Cong.2d Sess. 7-8. (Emphasis added.)
. 106 Cong.Rec. 5772. (Emphasis added.) See similar comment by Charles J. Bloch, Hearings on H.R. 8601 Before the Senate Committee on the Judiciary, 86th Cong., 2d Sess. 164.
. S.Rep. No. 1205, 86th Cong., 2d Sess. (1960), 1960 U.S.Code Cong. & Admin. News, pp. 1925, 1927. The Committee’s fears of uneonstitutionality were unfounded. See United States v. Manning, W.D. La.1963, 215 F.Supp. 272 (three-judge court).
. S.Rep. No. 1205, supra, n. 12, at 1928-29. The enrollment officer plan did not pass.
. 106 Cong.Rec. 7438.
. Supra n. 12, 215 F.Supp. at pp. 290, 294-295 (“it must * * * make a finding * * * ”). The court was not disturbed by the congressional limitation this subsection places on the judge’s discretion. See id., 215 F.Supp. at 291.
. Subsection (e) provides that: “Applications pursuant to this subsection shall be determined expeditiously.” 42 U.S.C.A. § 1971(e).
. 106 Cong.Rec. 7229.
. H.R. 7152, 88th Cong., 1st Sess., § 101 (d). The proponents of the new bill, including Congressman McCulloch, who was the sponsor of the bill which later became the Civil Rights Act of 1960, have expressed their concern: “The testimony before the Judiciary Committee substantiated the fact that certain district *837court judges lave been less than enthusiastic in their enforcement of the 1957 and 1960 acts. Evidence was presented that 2 or more years have elapsed in some cases before a decision could be obtained. Many of these decisions must be considered less than victories. Single judges have in some instances refused to act in the face of convincing evidence. * * * ” H.R.Rept. No. 914, 88th Cong., 1st Sess. Pt. 2, at 4 (1963).
. See Hearings on H.R. 10327 Before the House Committee on the Judiciary, 86th Cong., 2d Sess. 13 (1960) (remarks of Deputy Attorney General Walsh); Hearings on H.R. 8601 Before the Senate Committee on the Judiciary, 86th Cong., 2d Sess. 68, 69 (1960) (remarks of Deputy Attorney General Walsh). Senator Keating made the following explanation to the Senate:
“The ‘pattern or practice’ requirement means only that the proven discriminatory conduct of the defendants was not merely an isolated instance of racial discrimination. For example, a challenging system which operated to strike Negroes from the voting rolls while leaving enrolled white persons who were equally subject to challenge would constitute a pattern or practice of discrimination. Similarly, if State registration officials applied more ' stringent qualification tests to Negroes than to white citizens, or attempted to frustrate Negro eivrollment t>y failing to hold registration sessession, such derelictions of ditty would constitute a pattern or practice. Moreover, a single act such as enactment of a statute directed at Negroes would in itself constitute a pattern or practice of discrimination.™ (Emphasis added.) (106 Cong.Rec. 7223.)
. See 106 Cong.Rec. 5487.
. Some of these whites were shown to bo illiterate.
. The most effective remedy for freezing when subsection (e) is not invoked is discussed in United States v. Louisiana, supra 225 F.Supp. at pp. 390-398.
. See United States v. Louisiana, supra 225 F.Supp. at p. 396.