The opinion
HUTCHESON, Chief Judge
(concurring specially).
I am in complete accord with all that is said, as well as all that is held, in the main opinion affirming the order granting a temporary injunction. Because, however, of the arguments of appellants that the record contains affidavits counter to those submitted on behalf of ap-pellees and that on a trial the proof would should that the complained of statute has been administered impartially, uniformly and without regard to race or color, and because of the fact that, though the temporary injunction was issued on April 15,1957, no effort has been made by the defendants to bring the cause to trial on its merits, I feel that it is necessary to call the attention of counsel to the fact that this case is not before us on the merits and to refer them to what was said at length in Mansfield Hardwood Lumber Co. v. Johnson, 5 Cir., 242 F.2d 45 . This is that, though the appeal from the interlocutory injunction did not bring up the cause as a whole and “the case, except for the hearing on the appeal from the interlocutory order, is to proceed in the lower court as though no such appeal had been taken unless otherwise ordered”, 1 the defendants, instead as they should of pressing the cause to trial on its merits and then, if they lost, bringing them up, in effect are here arguing the case as though it were an appeal from a final decision on the merits.
. Ex parte National Enameling & Stamping Co., 201 U.S. 156 , 26 S.Ct. 404 , 50 L.Ed. 707 ; Lea v. Vasco Products, Inc., 5 Cir., 81 F.2d 1011 ; Douglass v. Pan-American Bus Lines, 5 Cir., 81 F.2d 222 .