(dissenting).
This case is a civil rights case attacking the growing evil of apartheid in urban America. Plaintiffs are citizens of Cleveland, Ohio, who claim to represent the class of poor persons in need of housing in the Cleveland area, most of whom are black. They assert that the building of housing authorized by national law, 42 U.S.C. § 1401 et seq. (1970), for their benefit is being ■ blocked by the named suburban cities because of a desire to exclude them and their class counterparts because of racial discrimination. The mechanism, allegedly discriminatorily employed by the defendant municipalities, is refusal to sign cooperation agreements between their cities and the Cuyahoga Metropolitan Housing Authority. The CMHA has *1095jurisdiction over the entire area concerned (including defendant suburbs) and it desires to build low rent housing within defendant cities to relieve the area housing shortage.
The case was originally filed before a three-judge court to test the constitutionality of the statutory requirement of cooperation agreements, 42 U.S.C. § 1415(7)(b)(i) (1970). After the submission of stipulations of fact, depositions, and the hearing of evidence, the three-judge court ruled that the cooperation agreement provision in the Housing Act was constitutional “on its face and as applied.” The three-judge court, however, specifically declined to rule on Count II of plaintiffs’ complaint which stated an action under 42 U.S.C. § 1983 (1970) against the five municipalities for allegedly refusing and failing to sign the cooperation agreements because of racial discrimination and referred Count II to the Chief Judge of the United States District Court for the Northern District of Ohio for disposition. (Count II of the complaint is printed in full, except for a portion directly applicable to the three-judge court decision, as Appendix A.)
Shortly after the three-judge court decision was announced, the Chief Judge of the District Court announced an opinion in the portion of the case which had been referred to him. In it he summarized his tentative views of the evidence which he had heard as part of the three-judge court. (See Mahaley v. Cuyahoga Metropolitan Housing Authority, 355 F.Supp. 1257 (N.D.Ohio 1973)). The Chief Judge found racial segregation in both Cuyahoga County and in the City of Cleveland:
“Cuyahoga County is a racially segregated county. The population of Cuyahoga County in 1970 was 1,721,300; 328,419 (19.1%) of whom were Negro. 87% of these 328,419 Negroes reside in Cleveland. Of the 40,578 who reside outside of Cleveland but within Cuyahoga County, 80% live in three eastern suburbs: 23,196 in the City of East Cleveland; 5,250 in Shaker Heights; and 4,007 in War-rensville Heights. In 1970 the defendant City of Garfield Heights had 1,789 Negro (4.6%) residents. All but two resided in one area of Garfield Heights adjacent to the City of Cleveland. The other four defendant suburban cities’ population in 1970 was from 99.1% to 99.8% Caucasian.
In Banks et al. v. Perk et al., 341 F.Supp. 1175 (N.D. Ohio 1972) the following findings of fact were made as to the City of Cleveland and are incorporated herein:
‘The City of Cleveland is a racially divided city. Except for a small pocket of Negroes on the west side of the Cuyahoga River, in the Bel-laire Section, almost all (96%) of the Negro citizens of the City live on the east side of the River. The Negro population of the City of Cleveland has grown dramatically since 1930 when Negroes constituted only 8% of the total population of the City. Today it is more than 38%. Since 1950 three neighborhoods on the east side of Cleveland, Hough, Glenville and LeeSeville, have changed from primarily White to almost entirely Negro. As a result, the schools in the City of Cleveland are quite badly segregated. Of the 183 public schools in the City, 85 are 90% to 100% Negro, and 72 are under 10% Negro. Approximately 95% of the Negro children attending public schools in the City attend schools which are all or substantially all Negro. In addition, in the last six years more than 5,000 jobs have moved from Cleveland’s inner city to the outskirts of the City and to nearby suburbs. Access to these jobs has decreased for those who live in the inner city.’ 314 F.Supp. at 1178.” Id. at 1259-1260.
The District Judge correctly summarized the question which the three-judge court had referred to him for determination:
“The question remaining before the court is whether the defendants have used the consent requirement as a tool *1096to perpetuate segregation in violation of 42 U.S.C. § 1983.” Id. at 1259.
Analyzing the evidence which had been submitted to the three-judge court, he held that a prima facie case of discrimination had been made out against the . defendant suburbs and he ordered the Cuyahoga Metropolitan Housing Authority to draft a plan to alleviate the housing shortage and the pattern of segregation he had found with the five suburbs, their officers being ordered to file any objection thereto within 90 days thereafter.
It is these tentative findings and these orders to draft a plan which are sought to be appealed in this case.
The majority opinion in our court elects to treat the interlocutory orders of the District Court as final. It asserts that the three-judge court decided all the issues in this case and, hence, its decision controls decision in this case under the doctrine of res judicata. The majority also holds, as I understand the matter, that individual defendants whose action is needed to approve the cooperation agreements are absolutely immune from the relief sought in this § 1983 action, even though their acts may be vio-lative of the federal constitution. The majority opinion also holds that plaintiffs have failed to prove their case and orders the District Judge to dismiss the complaint, although the appeal was taken before final hearings and final adjudication of the § 1983 issue had been completed.
I dissent.
First, it is clear that there has been no final order entered.in this case. Nor has the District Court certified any controlling questions of law. See 28 U.S.C. § 1292(b) (1970). On that basis alone, we might well have been better advised to dismiss this appeal. The doctrine of Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), of course, gives this court power to interpret the word “final” so as to accept an appeal where failure to do so would serve to deny justice. The facts in this case convince me that the interests of justice do not require us to accept this appeal. None of the suburban cities involved stand to lose any fundamental rights by the completion of this case before the District Court. They might yet prevail there entirely, and if they did not, they would have the clear right to appeal thereafter.
Second, the majority opinion holds that the three-judge court opinion and judgment in this case decided all of the issues, and, hence, rendered the present case subject to dismissal on grounds of res judicata. Quite clearly the three-judge court did not think that it was deciding all the issues in the case, for it specifically referred Count II stating the § 1983 case to the Chief Judge of the District Court. It is interesting to note that the opinion in the three-judge court case was written by Chief Judge Battis-ti. His interpretation of his own opinion is certainly contrary to any disposition on grounds of res judicata.
It appears to me that the contention that the three-judge court decision controls this case is answered by the explicit language of the opinion filed therein:
“Having determined that 42 U.S.C. § 1415(7)(b) is constitutional both on its face and as applied, we find no further questions which are required to be heard by this three judge court. The question of whether the defendants’ conduct violated the provisions of 42 U.S.C. § 1983 is not a proper matter for a three judge court. Therefore, without reaching any determination of the merits of Count Two of each complaint, this court remands consideration of those claims to Chief Judge Frank J. Battisti. Metcalf v. Swank, 293 F.Supp. 268 (W. [sic] D.Ill.1968); See Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971).” Mahaley v. Cuyahoga Metropolitan Housing Authority, 355 F.Supp. 1245, 1250 (N.D.Ohio 1973).
It should be noted that the three-judge court did not, as the majority opinion asserts, decide that the conduct *1097of the defendant municipalities was constitutional. That very question was referred to the Chief Judge of the District Court who made a tentative decision to the contrary.
Third, one of the most important questions in this case is whether or not injunctive relief may be obtained for violations of constitutionally established rights against the responsible officials of a city in their personal or official capacities. As I read the cases relied upon by the majority, all that they have thus far determined is that the municipalities themselves cannot be sued for damages or injunctive relief under § 1983. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). It is clear, however, that suits for injunctive relief (and damages) under § 1983 do indeed lie against municipal and county officials to restrain them from violating provisions of the federal constitution. Egan v. City of Aurora, 365 U.S. 514, 81 S.Ct. 684, 5 L.Ed.2d 741 (1961); Myers v. Anderson, 238 U.S. 368, 35 S.Ct. 932, 59 L.Ed. 134 (1915); Tinker v. Des Moines Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed. 731 (1969), and Birnbaum v. Trussell, 347 F.2d 86 (2d Cir. 1965). In this last case the Second Circuit said as follows:
“As we read the complaint it alleges that the defendants, under color of state law, deprived the plaintiff of his rights under the Fourteenth Amendment, in violation of Rev.Stat. § 1979 (1875), 42 U.S.C. § 1983 (1958), and conspired to deprive him of equal protection of the laws in violation of Rev.Stat. § 1980(3) (1875), 42 U.S.C. § 1985(3) (1958). A showing that defendants acted ‘within the scope of their employment and authority’ is not sufficient to defeat the district court’s jurisdiction. It would nullify the whole purpose of the civil rights statutes to permit all governmental officers to resort to the doctrine of official immunity. The statutory condition of defendant’s acting ‘under col- or’ of state or territorial law contemplates that he act in an official capacity. To the extent that state or municipal officers, such as the defendants Trussed and Mangum, violate or conspire to violate constitutional and federal rights, the Civil Rights Laws, §§ 1979 and 1980(3), 42 U.S.C. §§ 1983 and 1985(3), abrogate the doctrine of official immunity. See The Doctrine of Official Immunity Under the Civil Rights Acts, 68 Harv.L.Rev. 1229 (1955).” Birnbaum v. Trussell, supra at 88-89 (Footnotes omitted.)
Other cases include Hoffman v. Halden, 268 F.2d 280 (9th Cir. 1959), and Harkless v. Sweeny Independent School District, 427 F.2d 319 (5th Cir.), cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1970). Although the relief found to be available in this case was sought against the school superintendent and the individual trustees of the school district, the discussion is informative:
“Turning then to the officials, the trustees and the superintendent, it seems wed settled that § 1983 authorizes a suit against them. Federal judicial power has long been invoked to compel state officials to discharge their constitutional duties. See Board of Commissioners of Knox County v. Aspinwall, 1861, 65 U.S. (24 How.) 376, 16 L.Ed. 735; Home Telephone & Telegraph Co. v. Los Angeles, 1913, 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed. 510.
In numerous cases since Monroe v. Pape, the Supreme Court has permitted relief under § 1983 against state officials sued as such, without mention of that case. Griffin v. County School Board of Prince Edward County, 1964, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (county board of supervisors), and see other cases which are the progeny of Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, such as Alexander v. Holmes County Board *1098of Education, 1969, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19, and Carter v. West Feliciana Parish School Board, 1970, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477. See also Rinaldi v. Yeager, 1966, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (state prison warden); Davis v. Mann, 1964, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (state election officials); WMCA v. Lomenzo, 1964, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568 (state election officials); Reynolds v. Sims, 1964, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (state election officials); Wesberry v. Sanders, 1964, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (governor and secretary of state); Baker v. Carr, 1962, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (state election officials).” Harkless v. Sweeny Independent School District, supra, at 323.
The majority opinion in this case does not deny that suits against municipal officials for constitutional violations are permissible under § 1983.
The majority contends, however, that the eouncilmen of the affected municipalities are immune from judicial orders because of the doctrine of separation of the powers of government. Justice Stewart, then a member of our court, in Nelson v. Knox, 256 F.2d 312 (6th Cir. 1958), made these observations on municipal legislative immunity:
“We hold at the outset that the extent of the defendants’ insulation from liability under the Civil Rights Act cannot properly be determined by reference to the local rule in Michigan. Surely each state cannot be left to decide for itself which of its officials are completely immune from liability for depriving a citizen of rights granted by the Federal Constitution. The question must be decided as a matter of general law.
In the light of the relevant federal decisions, we cannot agree that members of a municipal legislative body share the complete immunity from liability which is enjoyed by judges and state legislators. In Hague v. C. I. O., 1939, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, the Supreme Court affirmed as modified a decree of injunction against the members of the Board of Commissioners of Jersey City, New Jersey, in an action brought under the Civil Rights Act. Nowhere in the five opinions filed in the Hague ease does it appear that any of the seven Justices who participated were of the view that municipal legislative officials are clothed with such complete immunity.” Nelson v. Knox, supra, at 314. (Footnote omitted.)
The Supreme Court has recently dealt with the absolute immunity claims of the highest official of a state and rejected such immunity. In Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), the Supreme Court said:
“The District Court acted before an answer was filed and without any evidence other than the copies of the proclamations issued by Respondent Rhodes and brief affidavits of the Adjutant General and his assistant. In dismissing the complaints, the District Court and the Court of Appeals erroneously accepted as a fact the good faith of the Governor, and took judicial notice that ‘mob rule existed at Kent State University.’ There was no opportunity afforded petitioners to contest the facts assumed in that conclusion. There was no evidence before the Court from which such a finding of good faith could be properly made and, in the circumstances of these cases, such a dispositive conclusion could not be judicially noticed. We can readily grant that a declaration of emergency by the chief executive of a State is entitled to great weight but it is not conclusive. Sterling v. Constan-tin, supra. [287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375 (1932).]
The documents properly before the District Court at this early pleading stage specifically placed in issue whether the Governor and his subordi*1099nate officers were acting within the scope of their duties under the Constitution and laws of Ohio; whether they acted within the range of discretion permitted the holders of such office under Ohio law and whether they acted in good faith both in proclaiming an emergency and as to the actions taken to cope with the emergency so declared. Similarly, the complaint places directly in issue whether the lesser officers and enlisted personnel of the Guard acted in good faith obedience to the orders of their superiors. Further proceedings, either by way of summary judgment or by trial on the merits, are required. The complaining parties are entitled to be heard more fully than is possible on a motion to dismiss a complaint.” Scheuer v. Rhodes, supra, 94 S.Ct. at 1693.
There is no question but that municipal councilmen may assert a qualified immunity from suit when acting within the scope of their legislative duties. See Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); Nelson v. Knox, 256 F.2d 312 (6th Cir. 1958); Lynch v. Johnson, 420 F.2d 818 (6th Cir. 1970). Of course, the scope of legislative duties cannot include acts which violate the federal constitution.
In my opinion we cannot and should not pass on any claims of qualified immunity until the charges of racial discrimination have been finally heard and decided.
Fourth, the majority opinion asserts that plaintiffs have failed to prove their claims. The trial judge, however, who has heard the evidence thus far submitted, has found the facts in some detail and has held that plaintiffs have proved a prima facie case. The majority does not assert that any of the facts found are “clearly erroneous.” Rather, it seems to assume them as true and to assert as a matter of law that even if plaintiffs should prove that the defendant councilmen’s sole reason for refusing to sign the cooperation agreements was a desire to exclude Negroes from living in their cities, that they had the right to do so.
This cannot be the law if this nation respects its Constitution.
James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971), upon which the majority relies, upheld a referendum provision applicable to low rent housing in the Constitution of the State of California because it was racially neutral on its face.
The three-judge court in this case upheld the constitutionality of the local cooperation agreement of the federal housing act on the same ground. But neither the three-judge court nor the Supreme Court in Valtierra held that city officials could employ the racially neutral language of the cooperation agreement provision in order to exclude citizens of a different race from residing in their cities.
It may well be that plaintiffs, if afforded the complete adjudicatory process in the District Court, will not be able to prove that defendants’ actions or inac-tions are based on constitutionally impermissible grounds. But this record does not suggest that they should be denied their right to complete their case.
The appeal should be dismissed as premature. If not, then the District Judge’s order should be affirmed and the case should be remanded to the District Court for further proceedings.
APPENDIX A
SECOND COUNT
25. This is an action for declaratory judgment authorized under Section 2201 of Title 28 of United States Code to enforce rights secured by the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution, by the Thirteenth Amendment to the United States Constitution, and by the Supremacy Clause of Article VI of the United States Constitution.
*1100This is also an action under Section 1983 of Title 42 of the United States Code to redress the deprivation of rights, privileges and immunities secured by the Constitution of the United States and by the United States Housing Act of 1937, as amended, 42 U.S.C. Section 1401 et seq.; the Civil Rights Act of 1964, 42 U.S.C. Section 2000d; Section 1981 of Title 42 of the United States Code; Section 1982 of Title 42 of the United States Code; the Civil Rights Act of 1968, 42 U.S.C. Section 3601 et seq.; and the Housing and Urban Development Act of 1968, 12 U.S.C. Section 1701 et seq.
Jurisdiction is also conferred by Sections 1343(3), 1343(4) and 1331(a) of Title 28 of the United States Code. The matter in controversy exceeds, exclusive of interest and costs, the sum of ten thousand dollars.
* * * * * *
26. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through 24, inclusive, of the First Count of this Complaint as if fully set forth herein.
27. The territorial jurisdiction of defendant CMHA includes the City of Cleveland and 54 other cities and villages, including each of defendant Cities. About 20% of the persons in the jurisdictional area of defendant CMHA are Negro. About 87% of such Negro population lives in the City of Cleveland.
28. The greater Cleveland area presents the typical American urban community situation, where the great majority of Negro and other minority group residents are confined to certain parts of the central city. The white middle class has migrated to the suburbs leaving the central city to those of lower economic means, for the most part members of minority groups, who are unable to afford suburban housing.
29. Employment opportunities for lower and moderate income persons have increased in the suburban communities of the greater Cleveland area, including each of defendant Cities, and have decreased in the City of Cleveland where the majority of Negroes and other minority groups are confined.
30. There are presently about 4,200 families on the waiting list of defendant CMHA who are qualified for low rent housing. These include families displaced from former housing by reason of governmental action, families subject to disability, veterans or families of persons in the armed services of the United States, and elderly persons. Most of the 4,200 families on the waiting list of defendant CMHA are Negro and other minorities. The present waiting time for families applying to defendant CMHA for low rent housing is from two to four years. There are many more persons within the territorial jurisdiction of defendant CMHA who are eligible for low rent housing but are not on the waiting list of defendant CMHA.
31. Over the past several years many units of housing in the greater Cleveland area have been demolished by action of public agencies resulting in the displacement of low income persons from their homes. Most of the persons so displaced have been Negroes.
32. Under present plans, over the next several years additional units of housing in the greater Cleveland area will be demolished by action of governmental agencies resulting in the displacement of additional low income families from their homes. Many of the persons displaced will be Negroes.
33. There is not an adequate supply of decent, safe and sanitary housing in the territorial jurisdiction of CMHA to rehouse persons who have been displaced or will be displaced by public action.
34. There are low income persons residing in each of defendant Cities who are eligible for low rent housing.
35. Defendant CMHA entered into cooperation agreements as required under the Housing Act of 1937, as amended, 42 U.S.C. Section 1415(7) (b), with the City of Cleveland in 1937, 1941 and 1949 under which it was authorized to build a total of 12,000 housing units, *110111,998 of which are either built, under construction or committed. In 1969 defendant CMHA entered into a cooperation agreement with the City of East Cleveland authorizing the construction of 205 units in that municipality. Defendant CMHA has not entered into cooperation agreements with any other municipality.
36. On information and belief plaintiffs state that defendant CMHA has attempted to enter into cooperation agreements with each of defendant Cities, but that the governing bodies of the defendant Cities have declined to enter into cooperation agreements with defendant CMHA.
37. The failure of defendant CMHA to enter into cooperation agreements with defendant Cities or other municipalities within its territorial jurisdiction has limited low rent housing to the Cities of Cleveland and East Cleveland. This limitation discriminates against low income persons by virtue of their class and against Negro persons because of their race.
38. The confinement of persons eligible to reside in low rent housing in areas which are predominately Negro and predominately low income has resulted in unequal access by low income families to employment opportunities, health care, educational facilities and governmental services, to their physical and psychological detriment.
39. The cooperation agreement requirement of the Housing Act of 1937, as amended, 42 U.S.C. Section 1415(7)(b), as it has been used within the territorial jurisdiction of defendant CMHA, by defendant CMHA, by each defendant City and by other municipalities:
(a) denies plaintiffs and members of the classes they represent the equal protection of federal laws designed to provide safe, sanitary and decent housing to them within the territorial jurisdiction of defendant CMHA at rents which they can afford and of federal laws designed to provide them access to housing within the territorial jurisdiction of defendant CMHA without regard to their race or class;
(b) denies plaintiffs and members of the classes they represent of choices as to the location of their housing within the territorial jurisdiction of defendant CMHA;
(c) deprives plaintiffs and members of the classes they represent of equal access to employment opportunities, health care, educational facilities and governmental services within the territorial jurisdiction of defendant CMHA;
(d) continues a policy and practice of discrimination and segregation on the basis of race and class in low rent housing within the territorial jurisdiction of defendant CMHA;
(e) intensifies the segregation of low rent housing within the territorial jurisdiction of defendant CMHA along class and race lines;
(f) constitutes a deprivation of the life, liberty and property of the plaintiffs and members of the classes they represent in violation of the due process clause of the Fourteenth Amendment to the United States Constitution;
(g) denies the plaintiffs and members of the classes they represent the equal protection of the law in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution;
(h) constitutes a means whereby the badges and vestiges of slavery are inflicted upon the plaintiffs and members of the classes they represent in violation of the Thirteenth Amendment to the United States Constitution;
(i) denies the plaintiffs and members of the classes they represent the full and equal benefit of laws in violation of Section 1981 of Title 42 of the United States Code;
(j) denies the plaintiffs and members of the classes they represent the *1102rights of citizens to purchase, lease and hold real property in violation of Section 1982 of Title 42 of the United States Code; and
(k) is contrary to the laws and Constitution of the United States and in violation of the Supremacy Clause of Article VI of the United States Constitution.
40. Plaintiffs and members of the classes they represent are irreparably injured by the operation of the cooperation agreement requirement of the Housing Act of 1937, as amended, 42 U. S.C. Section 1415(7) (b), as it has been used within the territorial jurisdiction of defendant CMHA, and such irreparable injury will continue until such cooperation agreement requirement shall have been declared invalid and of no further force and effect as applied to plaintiffs and defendant CMHA and defendant Cities. Plaintiffs and members of the classes they represent have no adequate remedy at law.