The appellant did not claim that she had filed any written application. Her testimony was that she went to make her application "around 1952, during the time I had to move," that the building of the Fred Wessels Homes had then been completed, but "It was empty and I didn't know who was going to take it, white or colored, and so I went to apply for one." She testified that she went to the office of the Fred Wessels Project. Mr. Stillwell, the Secretary and Executive Director of SH.A., and Millard Williams, an employee of S.H.A. from 1951 to 1955, were brought into the courtroom for purposes of identification. The appellant was unable to identify either of them as the one with whom she had talked." Appellant testified that her cousin, Susie Parker, had accompanied her when she went to make her application. When Susie Parker came to testify, she positively identified Millard Williams as the one with whom the conversation took place. In rebuttal, both Stillwell and Williams denied having had any such conversation, rents would maintain the property and pay off its debts. "Q. In other words, do I understand you to say that if colored people were allowed to come into the white units the white people would move out? A. That's right. "Q. And there would not be sufficient eligible colored people to occupany the units sufficient to pay the amount due on the debt of that particular property. Is that right? A. Yes, and when I say that 1 mean sufficient eligible of the higher groups of rents, We have to have a certain percentage of tenants who pay a minimum rent of $15.000 and graduso as to average down to enough to meet the expenses plus the subsistive to retire the principal and interest on the notes and bonds as they mature, and with this lessened income I question whether there would be enough to meet all the obligations. ate on יו "Q. And there could be a default, in your payments? A. Yes, that's right, the bonds, and another thing it would break down the racial equity. "Q. Explain what you mean by breaking down the racial equity? A. Well, or ever having seen the appellant or her cousin prior to the trial. Mr. Stillwell testified further that the Fred Wessels Homes had not even been built in 1952, that there were then no buildings on the site. Stillwell and Williams denied that there had been any application or attempt to apply for admission to Fred Wessels Homes specifically on the part of any one of the eighteen original plaintiffs, and generally on the part of any other negro. None of the seventeen other original plaintiffs testified in rebuttal, nor was any reason given for their failure to testify. [1] The district court had the advantage of seeing and hearing the witnesses, while this Court may only read their testimony. Upon the present record, it is an understatement to say that the pertinent fact-finding by the district court does not appear to be clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. [2] That, however, is not the end of this case, for appellant next contends that's the point that Miss Motley has been trying to bring out, that if it was turned into all colored then the white eligible tenants would be deprived of their occupancy of the white projects and we would default in our contract with the 'IHA because we did not maintain a racial equity." 8. "When I went into the office I met a clerk boy, and so I told him that I wanted to apply for a house there. He took me upstairs. When I got upstairs he showed me a room and in that room were two white Indies, and so I asked thein could I put in for a house there. She took me to another office where there was a white man sitting there. The white woman told me to explain it to this man, and so I explained to him, I said. 'I came to put in for a house." Не клід, "Negrow's are not allowed here. Go to Fellwood.' That was his remarks to me and so I turned around and walked out." 9. "Q. It was this man here? Is that him? A. I wouldn't say, but he was a slender built man. I only saw him once and then for about three minutes." that she was not required to prove that she applied for or was denied such admission because equity does not require the doing of a vain act. Appellant argues that similar acts have been held to be vain in cases involving governmentally enforced racial segregation, citing School Board of City of Charlottesville, Va. v. Allen, 4 Cir., 1956, 240 F.2d 59, and Gibson v. Board of Public Instruction of Dade County, 5 Cir., 1957, 216 F.2d 913. School Board of City of Charlottesville, Va. v. Allen, supra, involved actions in behalf of Negro school children to enjoin School Boards from enforcing racial segregation. Applications had been made to the Boards to take action toward abolishing the requirement of segregation in the schools, and no action had been taken. The Boards contended that, before the plaintiffs would be entitled to injunctive relief, they must have individually applied for and been denied admission to a particular school. The Fourth Circuit, speaking through the late Chief Judge Parker, said: The answer is that in view of the announced policy of the respective school boards any such application to a school other than a segregated school maintained for Colored people would have been futile; and equity does not require the doing of a vain thing as a condition of relief." School Board of City of Charlottesville, Va. v. Allen, supra, 240 F.2d at pages 63, 6-1. The situation was almost identical in Gibson v. Board of Public Instruction of Dade County, supra. The plaintiffs had petitioned the Board of Public Instruction to abolish racial segregation in the public schools as soon as practicable, and the Board had refused. Relying upon and quoting from Chief Judge Parker's opinion in the City of Charlottesville Case, supra, this Court held that: "Under the circumstances alleged, it was not necessary for the plaintiffs to make application for admission to a particular school." 246 F.2d at page 914. [3] At least two material distinctions exist between those cases and the present case: First, in each of those cases the plaintiffs had placed themselves on record as desiring practically the same relief as that sought from the court. Here, in the absence of any attempt to apply for admission to the Fred Wessels Homes, there is no reasonably certain proof that the appellant actually desired in some earlier year, say 1952, to become a tenant in that public housing. Testimony, years after the critical event, as to what one's intentions were cannot take the place of acts done at that time. Secondly, in each of the cases relied on, it was admitted that discriminatory segregation of the races was being enforced by the defendant Board, while, as has already been indicated, in the present case, in both the pleadings and the proof, governmentally enforced segregation is denied. In her reply brief, the appellant cites a third case in support of her contention that she was not required to prove that she applied for or was denied admission to the public housing project, Staub v. City of Baxley, 1958, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302. The pertinent holding in that case was thus expressed: "The first of the nonfederal grounds relied on by appellee, and upon which the decision of the Court of Appeals rests, is that appellant lacked standing to attack the constitutionality of the ordinance because she made no attempt to secure a permit under it. This is not an adequate nonfederal ground of decision. The decisions of this Court have uniformly had that the failure to apply for a license under an ordinance which on its face violates the constitution does not preclude review in this Court of a judgment of conviction under such an ordinance. Smith v. Cahoon, 283 U.S. 553, 562, [51 S.Ct. 582, 585, 75 L.Ed. 1264]; Lovell v. City of Griffin, 303 U.S. 444, 452, [58 S.Ct. 666, 669, 82 L.Ed. 949]. 'The Constitution can hardly be thought to deny one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands.' Jones v. City of Opelika, 316 U.S. 584, 602, [62 S.Ct. 1231, 1242, 86 L.Ed. 1691), dissenting opinion, adopted per curiam on rehearing, 319 U.S. 103, 104, [63 S.Ct. 890, 87 L.Ed. 1290]." Staub v. City of Baxley, supra, 355 U.S. at page 319, 78 S.Ct. at page 280. Clearly, that decision is not applicable here, for in that case the appellant had a legal right to engage in the occupation regardless of the ordinance, while here a tenant could not be admitted to a housing project without having made an application. No one could reasonably contend that by applying for admission to a public housing project the appellant would be yielding to any unconstitutional demand. [4] We conclude that the appellantplaintiff has no standing to maintain this action when she has not been denied admission to a public housing project on account of her race or color. That is the very gist of her claim. Absent such standing, there is no justiciable claim or controversy.10 [5] Mr. Stillwell's testimony has been noted (footnote 7, supra) to the effect that in his opinion actual segregation is essential to the success of a program of public housing in Savannah. If the people involved think that such is the case and if Negroes and whites desire to maintain voluntary segregation for their common good, there is certainly no law to prevent such cooperation. Neither the Fifth nor the Fourteenth Amendment operates positively to command integration of the races but only negatively to forbid governmentally enforced segregation.11 The judgment of dismissal is Affirmed. 10. Associated Industries of New York v. Ickes, 2 Cir., 1943, 134 F.2d 694, 700. SARAH C. ROBERTS US. THE CITY OF BOSTON. (5 Massachusetts 198 (1866)) The general school committee of the city of Boston have power, under the constitution and laws of this commonwealth, to make provision for the instruction of colored children, in separate schools established exclusively for them, and to prohibit their stiendance upon the other schools. This was an action on the case, brought by Sarah C. Roberts, an infant, who sued by Benjamin F. Roberts, her father and next friend, against the city of Boston, under the statute of 1845, c. 214, which provides that any child, unlawfully excluded froin public school instruction in this commonwealth, shall recover damages therefor against the city or town by which such public instruction is supported. The case was subinitted to the court of common pleas, from whence it came to this court by appeal, upon the following statement of facts: " Under the system of public schools established in the city of Boston, primary schools are supported by the city, for the instruction of all children residing therein between the ages of four and seven years. For this purpose, the city is divided for convenience, but not by geographical lines, into twentyone districts, in each of which are several primary schools making the whole number of primary schools in the city of Boston one hundred and sixty-one. These schools are under the immediate management and superintendence of the primary school committee, so far as that committee has authority, by virtue of the powers conferred by votes of the general school committee. "At a meeting of the general school committee, held on the 12th of January, 1848, the following vote was passed :-- "Resolved, that the primary school committee be, and they hereby are, author ized to organize their body and regulate their proceedings as they may deem most convenient; and to fill all vacancies occurring in the same, and to remove any of their members at their discretion during the ensuing year; and that this board will cheerfully receive from said committee such communications as they may have occasion to make." "The city of Boston is not divided into territorial school districts; and the general school committee, by the city charter, have the care and superintendence of the public schools. In the various grammar and primary schools, white children do not always or necessarily go to the schools nearest their residences; and in the case of the Latin and English high schools (one of each of which is established in the city) most of the children are obliged to go beyond the school-houses nearest their residences. " The regulations of the primary school committee contain the following provisions: "ADMISSIONS. No pupil shall be admitted into a primary school, without ticket of admission from a member of the district committee. "ADMISSIONS OF APPLICANTS. Every member of the committee shall admit to his school, all applicants, of suitable age and qualifications, residing nearest to the school under his charge, (excepting those for whom special provision has been made,) provided the number in his school will warrant the admission. "SCHOLARS TO GO TO SCHOOLS NEAREST THEIR RESIDENCES. Applicants for admission to the schools, (with the exception and provision referred to in the preceding rule,) are especially entitled to enter the schools nearest to their places of residence." "At the time of the plaintiff's application, as hereinafter mentioned, for admission to the primary school, the city of Boston had established, for the exclusive use of colored children, two primary schools, one in Belknap street, in the eighth school district, and one in Sun Court street, in the second school district. "The colored population of Boston constitute less than one sixty-second part of the entire population of the city. For half a century, separate schools have been kept in Boston for colored children, and the primary school for colored children in Belknap street was established in 1820, and has been kept there ever since. The teachers of this school have the same compensation and qualifications as in other like schools in the city. Schools for colored children were originally established : |