(specially concurring) :
I fully agree with Judge Tuttle’s opinion for the panel and favor adopting it as the opinion of the en banc Court. Although I agree with the result reached by the Court en banc, I disagree with some of the statements contained in the opinion by the Court en banc.
A. First, the opinion states, “In order to prevail in a case of this type it is not necessary to prove intent, motive or purpose to discriminate on the part of city officials.” This I accept as an accurate statement of the law. The opinion goes on to state, however, “Moreover, in our judgment the facts before us squarely and certainly support the reasonable and logical inference that there was here neglect involving clear overtones of racial discrimination in the administration of governmental affairs of the town of Shaw resulting in the same evils which characterize an intentional and purposeful disregard of the principle of equal protection of the laws.” This statement is ambiguous. It should not be read to imply that our decision in this case was based even in part on proof of motive, purpose, or intent. To imply that proof of motive, purpose, or intent is necessary to establish a basis for relief in a case such as this is to misstate the clear and unambiguous law on the subject. See Palmer v. Thompson, 1971, 403 U.S. 217, 225, 91 S.Ct. 1940, 1945, 29 L.Ed.2d 438, 445; Griffin v. County School Board of Prince Edward County, 1964, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256; Gomillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110; NAACP v. Button, 1963, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.*11752d 405; Brown v. Bd. of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Brown v. Bd. of Education, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083.1
B. Second, the opinion states, “It is apparent from our original opinion, and we repeat here, that we do not imply or suggest that every disparity of services between citizens of a town or city creates a right of access to the federal courts for redress. We deal only with the town of Shaw, Mississippi, and the facts as developed in this record.” I agree that not every failure to provide equal municipal services will result in a cause of action under section 1983 in federal court. I do not agree that what was said in the panel opinion and what we say here is confined to the facts of this case. The town of Shaw is not the proverbial “red-haired, one-eyed man with a limp”. tBy our decision in this case, we recognize the right of every citizen regardless of race to equal municipal services. The line will, of course, have to be drawn between those disparities which create a right of action in federal court and those which do not. Case by case development will define the contours of a federal cause of action; this case is not the vehicle for precise definition^
C. The doctrine of “ripeness” is a component of the “cases” and “controversies” requirement of Article III, Section 2 and is essentially a problem of pre-maturity. The Supreme Court has said:
The power of courts, and ultimately of this Court to pass upon the constitutionality of acts of Congress arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough. ... It would not accord with judicial responsibility to adjudge, in a matter involving constitutionality, between the freedom of the individual and the requirements of public order except when definite rights appear upon the one side and definite prejudicial interferences upon the other.
United Public Workers of America v. Mitchell, 1946, 330 U.S. 75, 89-90, 67 S.Ct. 556, 564, 91 L.Ed. 754, 767. See also Adler v. Bd. of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517; Poe v. Ullman, 1961, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989; Lathrop v. Donohue, 1961, 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191; Communist Party v. Subversive Activities Control Bd., 1961, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625; Bantam Books, Inc. v. Sullivan, 1963, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584; Railroad Transfer Service, Inc. v. Chicago, 1967, 386 U.S. 351, 87 S.Ct. 1095, 18 L.Ed.2d 143; Currie, Federal Courts 14-17, 46-50 (1968); Bickel, The Least Dangerous Branch 71, 111-198 (1962); *11763 Davis on Administrative Law Treatise 116-208 (1958).
'¿The plaintiffs in the instant case have suffered and continue to suffer the actual injury about which they complain. There is no question as to whether the injury will occur, whether the harm will affect these plaintiffs, or whether the Court will have concrete facts before it. This case is “ripe” for adjudication, n.
The doctrine of “finality” is a little-used component of the “cases” or “controversies” requirement. The doctrine, traceable to Hayburn’s Case, 1792, 2 U.S. (2 Dall.) 409, 1 L.Ed. 436, provides that the federal courts will not act if their decisions are subjected to executive or legislative review. This limitation on “jurisdiction” is a corrollary to the Article III provisions for independence of judges. | The doctrine has no relevance to the instant case.( There is no suggestion that the orders of this Court will be subject to review by other branches. “Finality” is, in a sense, a matter of degree. For example, a money judgment against the federal government can be avoided if the legislative branch chooses to refuse to appropriate money to pay the judgment or a decree of a federal court can have little force if the executive refuses to use its power to enforce it. There is no question of “finality” in the instant case.
The oblique references to “ripeness” and “finality” in the en banc opinion should not be read as an attempt to suggest that an exhaustion requirement exists in a case such as this. Any suggestion that a section 1983 plaintiff must exhaust state administrative or judicial procedures before commencing a federal court suit was buried by the Supreme Court and this Court long ago. See Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; McNeese v. Bd. of Education, 1963, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622; Damico v. California, 1967, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647; Houghton v. Shafer, 1968, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319; King v. Smith, 1968, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118; Hall v. Garson, 5 Cir. 1970, 430 F.2d 430; Moreno v. Henckel, 5 Cir. 1970, 431 F.2d 1299.
D. Footnote 1 to the en banc opinion raises the spectre of the alleged “property rights exception” to section 1983 jurisdiction. See Hague v. C.I.O., 1939, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (Stone, J., concurring). The previous cases of this Court have, on their facts, rejected that exception. See Hornsby v. Allen, 5 Cir. 1964, 326 F.2d 605; McGuire v. Sadler, 5 Cir. 1967, 337 F.2d 902; Mansell v. Saunders, 5 Cir. 1967, 372 F.2d 573; Barnes v. Merritt, 5 Cir. 1967, 376 F.2d 8; Hall v. Garson, 5 Cir. 1970, 430 F.2d 430.
E. Finally, by requiring the district court to receive and consider a plan for the equalization of municipal services in the town of Shaw, we do not, as Judge Gewin would seem to suggest, indicate any lack of confidence in the ability of the district court, in this or any other case, to fashion a remedy in line with our directives. Rather, we recognize that the planning concept represents a useful tool in situations such as this case. The district court will have the benefit of the ideas and abilities of those who draft the plan as well as those who criticize it. Submission of a plan puts a concrete proposal before the Court and the parties as a focus for discussion and development. [More importantly, the plan as adopted will provide the district court with a device for control of the remedy as well as a standard for measuring compliance — ) It will also facilitate appellate review. The planning concept is well suited to this case.2
. This is not to say that proof of motive, purpose or intent may not reinforce a finding of racial discrimination or serve as a basis for such a finding. See Hall v. St. Helena Parish School Board, E.D.La.1961, 197 F.Supp. 649, aff’d per curiam 368 U.S. 515, 82 S.Ct. 529, 7 L.Ed.2d 521 (1965); Davis v. Schnell, S.D.Ala.1949, 81 F.Supp. 872, aff’d per curiam 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093; Poindexter v. La. Financial Assistance Comm., E.D.La.1967, 275 F.Supp. 833, aff’d per curiam 389 U.S. 571, 88 S.Ct. 693, 19 L.Ed.2d 780 (1968); Hobson v. Hansen, D.D.C.1967, 269 F.Supp. 401 aff’d sub nom, Smuck v. Hobson, 1969, 132 U.S.App.D.C. 372, 408 F.2d 175; Johnson v. Branch, 4 Cir. 1966, 364 F.2d 177; Chambers v. Hendersonville City Bd. of Educ., 4 Cir. 1966, 364 F.2d 189; Downs v. Bd. of Education, 10 Cir. 1964, 336 F.2d 988; Taylor v. Bd. of Education, 2 Cir. 1961, 294 F.2d 36; Brest, Palmer v. Thompson: An approach to the Problem of Unconstitutional Legislative Motivation, 1971 S.Ct. Rev. 95 (1971) ; Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L..T. 1205 (1970) ; Note Legislative Purpose and Federal Constitutional Adjudication, 83 Harv.L.Rev. 1887 (1970) ; Comment, the Constitutionality of Sex Separation in School Desegregation Plans, 37 U.Chi.L.Rev. 296 (1970).
. Judge Gewin quotes the opinion in Kennedy Park Homes Assoc., Inc. v. City of Lackawanna, 2 Cir. 1970, 436 F.2d 108 as authority for Ms view that the form of relief “is for the District Court”. In Lackawanna the Second Circuit affirmed the decision of the district court and approved a detailed order as to relief. Here, the district court found for the defendants, we do not have a carefully developed decree to deal with, and the district judge will be forced to start anew.
*1177For an illustration of tlie use of the planning concept in school desegregation see the extensive litigation culminating in United States v. Montgomery County, 1969, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263.