The complaint was originally brought by eighteen Negro residents of Savannah, Georgia for an injunction, declaratory judgment and money damages on account of racial segregation in public housing in that City, allegedly enforced by the Public Housing Administration (hereinafter called P.H.A.) and the Housing Authority of Savannah (hereinafter called S.H.A.). Earlier orders of the district court dismissing the action1 were affirmed in part and reversed in part and remanded.2

After remand, but prior to the commencement of trial, seventeen parties plaintiff voluntarily withdrew,3 leaving the appellant, Queen Cohen, as the sole plaintiff. At the conclusion of the trial, the district court found as a fact, inter alia, that "Queen Cohen never made an application for admission in the Fred Wessels Homes or any other public housing project in Savannah."

The appellant's first specification of error is that:

"The trial court erred in dismissing appellant's suit, after a full trial on the merits, on the ground that appellant failed to prove that she had ever made application for admission to Fred Wessels Homes."

The complaint alleged that: "Each of the plaintiffs has been denied admission to Fred Wessels Homes solely because of race and color." In their answer, the defendants denied "that these defendants have determined upon and presently enforce an administrative policy of racial segregation in public housing in the City of Savannah, Georgia," and denied the allegation that "Each of the plaintiffs has been denied admission to Fred Wessels Homes solely because of race or color." The evidence showed that P.H.A. was operating under its regulation quoted in full in our former opinion,4 which requires that:

"Programs for the development of low-rent housing, in order to be eligible for PHA assistance, must reflect equitable provisions for eligible families of all races determined on the approximate volume of their respective needs for such housing." (PHA Housing Manual, Section 102.1)

Its policies and practices were more fully described in the testimony of Mr. Silverman, its Assistant Commissioner for Management, quoted in the margin.5

The Housing Authority of Savannah operated, or had under construction, 2170 dwelling units of which 1120 were designated for Negro occupancy and 1050 for white. The project known as Fred Wessels Homes was intended for white occupancy, but Mr. Stillwell, the Secretary and Executive Director of S.H.A., denied in his testimony that Negroes had ever been refused admission to that project.6 At the same time, Mr. Stillwell candidly admitted that his hope for success of a program of public housing for people unable to pay the cost of decent and adequate private housing lay in the maintenance of actual segregation.7

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.8 Mr. Stillwell, the Secretary and Executive Director of S.H.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.9

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, 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.

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.

That, however, is not the end of this case, for appellant next contends 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, 246 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, 64.

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.

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 held 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.

We conclude that the appellant-plaintiff 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

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

Affirmed.