The opinion
CAMERON, Circuit Judge
(dissenting).
On July 11, 1963, I requested a hearing of this case en banc by writing all of. the Judges of the Court in active service as follows:
“Pursuant to Rule 25(a) of this Court, I hereby initiate consideration by each of the Circuit Judges in active service of whether to order a hearing or rehearing of this case en banc. Included in this motion is the request that the issuance of the mandate be stayed until the attitude of the members of the Court can be ascertained and that the Chief Judge proceed to poll the Court on this motion. * * *
“I am of the opinion * * * that the case was not legally advanced for hearing or placed on the docket for hearing at the time it was heard, it being my understanding that the order was signed by Judge Tuttle on June 28th after the judgment of the district court had been entered June 24th.
“I think, too, that there is considerable doubt about the jurisdiction of this panel to hear the case. It is my understanding that this panel had under consideration before we adjourned for the summer the Theron Lynd case * * * Its right to consider and adjudicate the Davis case is, I think, subject to serious question.
“I assume that the record before the Court in New Orleans was sent up under our Rule 23(4), which is a substantial rescript of Rule 75(j), Federal Rules of Civil Procedure. That portion of our Rules refers only to a motion ‘for any intermediate order.’ I do not think the order which this Court directed the district court to enter can be classified as an intermediate order. It seems to me it is the equivalent of a final judgment granting all of the relief which the plaintiffs-appellants would be entitled to under a hearing on the merits and, in fact, dispenses with a hearing on the merits.
“For these reasons and others, including the fact that I see from the press that the appellees have made or intend to make a motion for a hearing en banc, I respectfully make this request.”
The panel of Judges BROWN, WISDOM and BELL filed two per curiam opinions, one dated July 9, 1963 in which Judge BELL dissented, and the second filed July 18, 1963 in which Judge BELL concurred in part and dissented in part.
Being advised that a majority of the members of this Court in active service did not support my request for en banc hearing, I respectfully dissent from the action of the members of the Court in refusing to grant an en banc hearing. The principles discussed in my dissenting opinion in No. 20595, Armstrong et al. v. Board of Education of the City of Birmingham, et al., 5 Cir., 323 F.2d 333 , are in my judgment controlling in this *363 case also and I adopt that opinion as a part of this one.
The panel to which this case was assigned by the Chief Judge on July 1, 1963 1 was a panel designated for a former term of this Court. Assuming that it was empowered to act, during the intervening time, on a case which it had under consideration when the term ended, it would not, in my opinion, have jurisdiction to hear the present case under special designation by the Chief Judge acting alone. As stated in the Armstrong case, it seems to me clear from the statutes and the Supreme Court decisions cited there and the Rules of this Court, that the assignment of Judges and of cases for hearing is a matter entrusted solely to the Court as a body.
To hold that one Judge is vested with authority to fix the time and place where a ease is to be heard, and to select the Judges who shall hear it, is, in my judgment, to decide that one man has power in excess of any which has been committed to any individual under this government of laws.
It is clear, moreover, that there is no showing here that the case is exceptional or extreme or which demonstrates a clear abuse of discretion or usurpation of judicial power such as the panel of this Court thought it discovered in Stell et al. v. Savannah-Chatham County Board of Education et al., May 24, 1963, 318 F.2d 425 .
I respectfully dissent.
. “The within motion for an injunction pending appeal is hereby set for hearing before a'panel of this Court to be convened in New Orleans, Louisiana, July 8, 1963, to follow immediately after the hearing in the case of United States v. Lynd, 5 Cir., 321 F.2d 26 .
“This 28th day of Juno, 1963.
“Elbert P. Tuttle “Chief Judge “Fifth Circuit”