factors which govern that discretion under our constitutional system, the Supreme Court stressed not only the local character of the problem, but the inherently public nature of it. In the first Brown decision, 347 U.S. at page 489, 74 S.Ct. at page 689, it noted that, at the time the Fourteenth Amendment was adopted, "In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold. * Education of Negroes was almost nonexistent, and practically all of the race were illiterate." It then proceeded to discuss some of the cases in which efforts had been made to eliminate the disparity existing between schools in the South and those in the North. Fundamental differences were frankly recognized while adverting, at the same time, to the fact that the South had not been alone in practicing the discrimination at which the current decisions were aimed. The important sentences in which it pointed out some of the distinguishing characteristics of the discretion admittedly residing in District Courts read thus: "In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs." The most important aspect of the principle enunciated in this quotation, and the one which my colleagues seem to leave out of consideration, is the case 10 cited as authority for it and as setting up the standard by which District Courts should be governed in making this adjustment and reconciliation between "public and private needs." (c) Since Hecht is the decision cited by the Supreme Court as illustrating the principles by which District Courts are governed in the exercise of discretion, it ought to be examined in some detail. It 9. Second Brown decision. 349 U.S. 300, 75 S.Ct. 756, 99 L.Ed. 1083. 10. Hecht Co. v. Bowles, 1944, 321 U.S. 321, 329-330, 64 S.Ct. 587, 88 L.Ed. 754. began as an injunction proceeding under the Emergency Price Control Act. Government operatives had spot-checked seven out of more than one hundred departments in the large store of the Hecht Company, and had found in excess of 4,500 violations of price regulations.11 Nevertheless, the District Court 12 thought that Hecht has manifested good faith and was not likely to commit, in the future, anything more than inadverted violations, and it felt that the public interests would be served better by refusing an injunction than by granting one: "If in such circumstances an injunction is asked the court is not deprived of its inherent powers by calling it a statutory injunction. The court in such case retains its implied powers, exercised in a sound discretion. * As generally understood judicial discretion includes the propriety of granting appropriate relief. All rules in equity must necessarily be sufficiently elastic to do justice in the case under consideration. Courts of equity are not inquisitorial but remedial. # each case must be determined upon its facts and on equitable principles. In a case such as this an injunction should not issue unless thereby better compliance with law may be en forced. Such consideration is addressed to the sound discretion of the court. It is elementary that the purpose of an injunction is to deter rather than to punish. * The attitude of the defendant company is not antagonistic but cooperative, and in my judgment an injunction would not be in the public interest. I conclude that a just result requires a dismissal of plaintiff's complaint [Emphasis supplied.] The Court of Appeals for the District of Columbia 13 felt that the District Court had misconceived the purposes of the statute and had given too wide a sweep to traditional equity pow ers, and it set aside the order of the 11. See 137 F.2d 689. 13. Brown v. Hecht Co., 1943, 78 U.S.App. D.C. 98, 137 F.2d 689. District Court which had refused the injunction. The Supreme Court granted certiorari 14 and reversed,1 15 approving the action of the District Court in basing its denial of injunction on the balancing of public interest versus private needs. Here is its language: "We are dealing here with the requirements of equity practice with a background of several hundred years of history. The historic injunctive process was designed to deter, not to punish. The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instru ment for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims. [321 U.S. at page 329, 64 S.Ct. at page 591.] We repeat what we stated in United States v. Morgan,16 supra, respecting judicial review of administrative action: '* court and agency are not to be regarded as wholly independent and unrelated instrumentalities of justice, each acting in the performance of its prescribed statutory duty without regard to the appropriate function of the other in securing the plainly indicated objects of the statute. Court and agency are the means adopted to attain the prescribed end, and so far as their duties are defined by the words of the statute, those words should be construed so as to attain that end through co-ordinated action. Neither body should repeat in this day the mistake made by the courts of law when equity was struggling for recogni 14. 320 U.S. 727, 64 S.Ct. 81, 88 L.Ed. 429. 15. Hecht Co. v. Bowles, 1944, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754. 16. 307 U.S. 183, 191, 59 S.Ct. 795, 799, 83 L.Ed. 1211. 17. The same idea was expressed in Virginian Ry. Co. v. System Federation, etc., 1937, 300 U.S. 515, 552, 57 S.Ct. 592, 601, 81 L.Ed. 789: "More is involved tion as an ameliorating system of justice; neither can rightly be regarded by the other as an alien intruder, to be tolerated if must be, but never to be encouraged or aided by the other in the attainment of the common aim.' The Administrator does not carry the sole burden of the war against inflation. The courts also have been entrusted with a share of that responsibility. For the standards of the public interest not the requirements of private litigation measure the propriety and need for injunctive relief in these cases." [321 U.S. at pages 330-331, 64 S.Ct. at page 592; emphasis added.]17 (d) Here, then, is the blueprint suggested by the Supreme Court for the guidance of District Courts in passing upon applications for injunctive relief and in deciding whether the best interest of the public and the private litigant will be served by prolongation of litigation. There can be no doubt that the Supreme Court recognized the paramount public nature of this problem and the duty of the District Courts to decide questions of policy as well as questions of law. Ordinarily discretion is lodged in a trial judge because he is present and obtains the "feel" of the trial. This includes the attitudes of the parties and their counsel as revealed in the give and take of the courtroom encounter, the advantage of observing the witnesses as they testify and of appraising from their looks and demeanor the weight and probative value of the words they speak. But the discretion committed to the trial judge in segregation cases has the added ingredient arising from his proximity to and knowledge of local conditions. His judgment is based upon what than the settlement of a private controversy without appreciable consequences to the public. The peaceable settlement of labor controversies, is a mat⚫ Courts ter of public concern. of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved." [Emphasis added.] he knows from his experience as well as what he hears from the witness stand. The broad and comprehensive terms used in the discussed cases are bound to embrace the manifold intangibles and imponderables which necessarily play such an important part in assessing what is the public good and in balancing public interest against private needs. III. (a) This Court has always aligned itself with the universal rule that findings of the trial court must stand unless clearly erroneous and that exercised discretion should not be disturbed unless plainly illegal or unsupported by the evidence.18 This same disposition to lean heavily upon the district court was manifested in the first decision of this Court applying the Segregation Cases: "A 18. E. g., Mutual Life Ins. Co. of New York v. Ellison, 1955, 5 Cir., 223 F.2d 686; Indiana Lumbermens Mutual Ins. Co. v. Janes, 1 Cir., 1956, 230 F.2d 500; United States v. Stewart, 5 Cir., 1953, 201 F. 2d 135; Bruce v. McClure, 5 Cir., 1955, 220 F.2d 330; and United States v. Smith, 5 Cir., 1955, 220 F.2d 548. And see United States v. W. T. Grant Co., 1953, 345 U.S. 629, 633, 73 S.Ct. 894, 898, 97 L.Ed. 1303, where the Supreme Court said a chancellor's "discretion is necessarily broad and a strong showing of abuse must be made to reverse it." 19. Concurring opinion of Judge Rives in Board of Supervisors, etc., v. Tureaud, 5 Cir., 1955, 225 F.2d 434, 446-447, adopted by the Court en banc in the same case, 1956, 228 F.2d 895, 896. 20. E. g., Whitmore v. Stilwell (Texarkana Jr. College), 5 Cir., 1955, 227 F.2d 187; Brown v. Rippy (Dallas Independent School Dist.), 5 Cir., 1956, 233 F.2d 796; and Jackson v. Rawdon (Mansfield High School), 5 Cir., 1956, 235 F.2d 93. 21. For example, the action of the District Judge in the Mansfield School case was based, in my opinion, on a clear comprehension of the many-sided problem with which he was dealing and he exercised wisdom and discretion in fashioning the decree to accomplish what was best for the public as well as the litigants. Three Negro boys had applied for admission to the Mansfield High School a month after classes had been begun. The District (b) This apparent change of attitude reflects, in my opinion, a definite departure from the established rules of law recognized as controlling by the Supreme Court in the Segregation Cases as amplified by its decision in the Hecht case. I think it is a mistake for us to attempt to sit in too close chaperonage upon what the district judges do. Unless we are to be given some peculiar powers of divination, we cannot possibly approach the insight which is theirs by reason of their intimate contact with the conditions confronting them."1 Judge, acting in obedience to the teachings of the Supreme Court in the Hecht case, denied the injunction because he felt that more good could be accomplished by so doing than by granting injunetion. Here, in part, are the reasons assigned by him for denying the injunction: "In finding the equities between the parties, I see on the one hand, the situation of this rural school board composed primarily of farmers, agents of the State of Texas.. opening their meetings with prayer for solution; studying articles in magazines and papers; holding numerous meetings; passing resolutions and appointing a committee to work on a plan for integration-making the start toward 'obeying the law' which their abilities dictated. Further, the trustees now assure the Court that they are continuing their efforts and will work out desegregation. Their committee conferred with these plaintiffs in the presence of plaintiffs' parents, and accepted and fulfilled the request made by plaintiffs with their attorney in August, 1955 for certain administrative steps as a solution for this period of transition, *. After the accomplishment of these administrative steps taken at the request of plaintiffs, and after school had been in session more than a month, this action was filed. .. "After the accomplishment of the above mentioned administrative processes at plaintiffs' request, and after school had begun, it appears to the Court that the issuance of an injunction to effect entrance into Mansfield High School at this (c) The Court below in this case, alive to local conditions, acquainted with local needs and with the human beings bearing primary responsibility with respect to them; and observing the demeanor, as witnesses, of the public servants entrusted with the operation of a public school system for the good of all of the people, felt that more would be accomplished if the cudgels of conflict should be dropped, and men of good will should be encouraged to discuss and compose their differences in an atmosphere permeated as little as might be by animosities. He concluded apparently that an ounce of cultivated magnanimity and forebearance might be worth more than a pound of coercion. IV. Projected against this background of legal principles, this case seems to me quite simple and easy of solution. I think the Court below handled it well, decided it correctly, and that we should uphold its wise action in all respects. (a) A group of Negro children desired to enter Barwise School and, at the beginning of the school year, presumably went there to matriculate. They were told that they would be permitted to enter this school as soon as the pupils then attending it could be moved to Sunnyside Heights School, then in course of construction. It was estimated that this shift could take place in about six weeks." Announcement of the completion was made on Christmas Day and all of plaintiffs were admitted to the Bar time would be unjust to the school trustees and the students alike.... "It is impossible, however, simply to shut our eyes to the instant need for care and justice in effectuating integration. The directions of the United States Supreme Court allow time for achieving this end. While this does not mean that a long or unreasonable time shall expire before a plan is developed and put into use, it does not necessitate the heedless and hasty use of injunction which once issued must be enforced by the officers of this Court, regardless of consequences to the students, the school authorities and the public. This school board has shown that it is making a good faith effort to wise School (its name having been changed to Holland) upon convening of the second term in January. (b) Meantime, about two weeks before the announcement was made, this civil action was begun. It was predicted solely upon the fact alleged in the complaint that Barwise was the school nearest plaintiffs' homes. Alfred Avery, the only plaintiff concerning whom proof was made, lived about six blocks from the school. Plaintiffs and their attorney knew when the action was begun that all of the relief sought would be given administratively without litigation long before the case could possibly be brought on for hearing. This action was begun solely because plaintiffs' attorney did not trust the school board, and did not think it was proceeding in good faith. Appellants' brief and oral argument abundantly demonstrate this, and the frequent colloquies between their attorney and the Court bring it into bold relief.23 Barwise was a small school with ten classrooms and a capacity of less than three hundred pupils. There were one hundred forty Negroes whose residences would entitle them to claim admittance to Barwise. All of them could not be accommodated and the school board could not practice discrimination in favor of plaintiffs and against the residue, or against the pupils already enrolled therein. (c) The Trial Judge considered the affidavits and had the benefit of the testi ward integration, and should have a reasonable length of time to solve its problems and end segregation in the Mansfield Independent School District." [Emphasis added.] 135 F.Supp. 936, 937. 22. Shortage of steel resulting from the steel strike, together with heavy rains and two floods, brought about a delay in the completion of the new school. 23. At one point the Court said to plaintiffs' attorney: "You have misgivings, I am sure, from what has been said [but] personally I have strong faith in the good intentions and good faith of the school board. " mony of one of plaintiffs' parents and of members of the school board. He found that it was not unreasonable to defer the applications of plaintiffs for a few weeks until the physical plants of the school could be altered to meet the new demands; and felt, too, that the school board had wrestled with its vexing problems in a spirit of fairness and good faith and that an injunction or the continued pendency of the suit would serve no good purpose, but would do harm. The following quotation from the Judge's opinion sets forth what was behind his judgment: "The Supreme Court * * has recognized very clearly the practical reality that the primary responsibility in this progress of desegregation rests on the local school boards, those nearest to its problems in its local aspects, and that's where it should be properly, so long as local officials demonstrate the attitude to solve the transition with rcasonable dispatch. It is of supreme importance that the work should proceed peaceably in this undertaking "But the impression I have from what has been presented during the hearing today is that the Board and officials of this School District seem to be men of good will and have set their policy toward the integration of this new educational policy and with that attitude in mind I think it would be premature for courts to interfere. Impatience and precipitancy of spirit are not, I am convinced, nearly so reliable a course as that of depending upon these authorities, once you have substantial evidence that they are acting in good faith and with a real and honest purpose to go ahead and without dragging the plans by any unnecessary or vexatious breaks along the way. "I have the faith in this School Board that they will measure up to 24. Such phrases occur in the opinion as "voluntary cessation of illegal conduct," the responsibilities and the plans that have been declared in their behalf here today through their Superintendent and Secretary of the Board and the recorded minutes and by the words of their counsel. I believe it would be a disservice to step in at this time and undertake to compel and direct the business of these men under the power of the Court." The judge who spoke these words had seen the witnesses as they testified, had acquired the "feel" of the case as it unfolded before him; and he demonstrated in his grasp of the problem a wisdom, a patience and a tolerance which invest his words with commanding convictive force. More than that, he was born and had spent his days in close proximity to the locale of this controversy and had an intimate acquaintance with the conditions with which he was dealing. We, who assume to pass upon the wisdom of his discretion, have lived our lives hundreds of miles away from that locale. The trial judge, following the holdings of Brown and Hecht, felt that more would be accomplished by denying the injunction and removing the case as a constant irritant than by granting the injunction or retaining the case. When we substitute our judgment for his, a lack of perspective is demonstrated along with a definite dissonance with the teachings of the Supreme Court. V It rema...s, therefore, but to examine the majority opinion to test the reasons upon which the reversal is predicated. (a) While conceding that the Court below did not err in refusing declaratory and injunctive relief, the opinion intimates that the school board was guilty of some illegal action. In fact, what is said concerning mootness is predicated necessarily on the assumption of illegal action and on doubt concerning the good faith of the school authorities. The opinion does not point to any facts which and "no reasonable probability of a re- |