(specially concurring) :
I reach the same result as the majority but on a somewhat different version of the case. The opinion of the district court is reported. Hawkins v. Town of Shaw, N.D.Miss., 1969, 303 F.Supp. 1162.
The district court was well aware of the applicable law, referring to McLaughlin v. Florida, 1964, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222, for the tests to be applied in assessing legislative judgment (or the city activity here) under the Equal Protection Clause of the Fourteenth Amendment. There the Supreme Court called attention in the following language to the much more stringent standard to be applied where a classification is based upon race:
“Normally, the widest discretion is allowed the legislative judgment in determining whether to attack some, rather than all, of the manifestations of the evil aimed at; and normally that judgment is given the benefit of every conceivable circumstance which might suffice to characterize the classification as reasonable rather than arbitrary and invidious. * * * But we deal here with a classification based upon the race of the participants, which must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States. This strong policy renders racial classifications ‘constitutionally suspect,’ * * *; and subject to the ‘most rigid scrutiny,’ * * *; and ‘in most circumstances irrelevant’ to any constitutionally acceptable legislative purpose, * * * ” 379 U.S. at 191-192, 85 S.Ct. at 288.
The court went on to hold that a classification by race is proscribed absent some overriding statutory purpose. This standard of an overriding or a compelling state interest to justify a racial classification has been defined as a statute necessary to the accomplishment of some permissible state objective, independent of racial discrimination. Loving v. Virginia, 1967, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010; see also Jackson v. Godwin, 5 Cir., 1968, 400 F.2d 529, 537-538. The district court also cited the Equal Protection test which we formulated in Davis v. Georgia State Board of Education, 5 Cir., 1969, 408 F.2d 1014, 1015:
“Basic to any complaint of denial of equal protection must be some showing that the persons or groups being treat*1294ed differently are similarly situated and that their disparate treatment by the state is either without any rational basis or is based on some invidious factor such as race. * * * ”
Thus the standard to be applied depends, just as the district court viewed the matter, on the facts of a case. Facts showing a racial classification call for one standard while a non-raeial classification calls for another. The district court recognized that there was disparity in treatment as between the white and Negro residents in the rendition of the services in question but reached the factual conclusion that the disparity resulted from factors other than race and thus the racial classification test was not applied. I find this factual conclusion to be clearly erroneous and it follows that it was error not to apply the racial classification standard in assessing the facts for a violation of the Equal Protection Clause.1
We begin with the proposition that the Town of Shaw is unusual in the sense that paving, sewerage, and other city improvements are made without special assessments. The costs of such improvements are paid out of general funds derived from ad valorem taxes and revenues from the operation of municipal electrical and water systems. The town has a cash surplus and no bonded indebtedness. In that connection it is very much unlike the City of Prattville with which Judge Johnson dealt in Hadnott v. City of Prattville, M.D.Ala., 1970, 309 F.Supp. 967.
In that case the plaintiffs launched a wide ranging attack against the City of Prattville, Alabama on the basis of a disparity in services with respect to paving, sewerage, and water lines. Under the city charter it was necessary for property owners to pay a part of the cost of services of this type. The court rejected the claim of racial discrimination finding that the plaintiffs had failed to seek the services in question through the ordinary channels of initiating a request for such services as an incident to property ownership. It was also found that there was no discrimination in the furnishing of street lights, fire hydrants, and police and fire department protection. The court did find a discriminatory policy in the operation and maintenance of parks and granted injunctive relief as to the parks.
Here the Town of Shaw furnishes services without regard to assessment or property ownership and there is no basis in the record for the failure to have equalized many of the services in question. For example, there is no conceivable reason for placing all of the modern street lights in the areas of the city occupied by white residents and none in the areas occupied by Negro residents. Nor does the record demonstrate why it happens that the inadequate water pressure exists largely in the Negro areas. There is also a clear disparity in the areas of sanitary sewers, storm drainage, paving, fire hydrants and traffic control signs, all of which can be and were traced to racial considerations simply by virtue of the division of the town into Negro and white areas and the fact of the services and facilities available to each.
All in all however, the record tells a story of a strengthening of the political system through the guarantee of the right to vote. There was no paved street in the Town of Shaw until the mid 1930’s when the highway through the town was paved. Over the years other streets and highways have been paved. It was not until 1956 that any of the streets in the Negro residential areas were paved and this paving was in an insubstantial amount. The situation has changed rapidly since 1966. The present situation is that the city has 231 white residences and 437 Negro residences. Of these, 97 per cent of the white residences are lo*1295cated on paved streets and highways while only 43 per cent of the Negro residences are so located.2
Since the Negro citizens obtained the right to vote some four years ago under the Voting Rights Act of 1965 and under the present government which took office in 1965, there has been a considerable improvement in most of the services rendered them by the city. They have approximately 50 per cent of the vote and we were told at oral argument and in brief that a Negro now has been elected to the city council. In addition, we find that a bi-racial committee has been appointed to advise with the mayor and council regarding services. A federal grant has been approved to resolve the problems with regard to water pressure and fire hydrants. The principal areas to be resolved in an equalization of services will be the street paving, sanitary sewers, storm drainage, street lights, and traffic control. The total cost of replacing all of the existing street lights in Negro neighborhoods is indicated as $3,100. A substantial start has been made in the other areas of service.
The fact of the court having jurisdiction in a case such as this is now beyond doubt. It rests on 42 U.S.C.A. § 1983, one of the statutes enacted by the Congress to give effect to federal constitutional rights following the Civil War, and 28 U.S.C.A. § 1343(3). The Supreme Court has construed that statute as affording a supplemental remedy to those plaintiffs who wish to prosecute their federal constitutional claims in the federal court system, and the remedy is available, because it is supplemental, without regard to exhausting any available remedy in the state court system. Monroe v. Pape, 1961, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492; Moreno v. Henckel, 5 Cir., 1970, 431 F.2d 1299; Harkless v. Sweeny Independent School District, 5 Cir., 1970, 427 F.2d 319; Stevenson v. Board of Education of Wheeler County, Georgia, 5 Cir., 1970, 426 F.2d 1154, 1155.
Given the remedy and the facts of this case, appellants are entitled to relief. Judge Tuttle has wisely provided for a remedy with respect to such relief as may be due in the form of defendants presenting a plan to the district court whereunder the disparities based on race are to be ended. This will afford the governing authorities, as assisted by the bi-racial planning committee, an opportunity to resolve the problem; This approach is in the highest tradition of Federalism whereunder local governments are to carry out their function and responsibilities in a system where every level of government, federal, state and local, is subject to the federal Constitution.
. Tlie ultimate factual conclusion involved, unlike a finding as to a subsidiary fact, may be reviewed by an appellate court without the strict application of the clear erroneous doctrine of Rule 52(a), F.R. Civ. Procedure. See Industrial Instrument Corporation v. Foxboro Company, 5 Cir., 1962, 307 F.2d 783, 786, Fn. 2.
. These statistics came from an appendix to plaintiff’s brief -which is said to have been taken “principally” from two ex-liibits of record. Plaintiffs’ expert testi-tted that only 210- Negro residences fronted on unpaved streets. This would mean that 52 per cent of such residences were located on paved streets. In either event there was a clear disparity in street paving as between white and Negro residents,