TUTTLE, Chief Judge.
This is an appeal by the appellants, four Negro residents of the city of Albany, Georgia, officials of the so-called “Albany Movement,” from an order of the trial court dismissing their complaint, which, as a class action, sought to enjoin the defendants from continuing to enforce certain alleged segregation practices with respect to publicly owned and operated facilities of the city and certain other privately owned, but publicly regulated, facilities. The complaint alleged that segregation of the races is enforced by police officers of the city of Albany in the public recreational, library, and auditorium facilities of the city and that through the existence of ordinances of the city of Albany, segregation of the races is enforced in the privately owned transportation facilities, theatres and taxicabs. It is these practices which appellants sought to enjoin by their suit.1
After extended hearings conducted by the trial court on three separate occasions, the court held that the four named plaintiffs did not represent the class on whose behalf they brought suit, because the record did not disclose that they individually had ever been denied access to the public facilities in suit or had been compelled to use them on a segregated basis. The court thereupon held that they could not recover on their own behalf because they had not shown such denial to themselves individually and could not recover on behalf of the class because they had not shown that they were members of the class. On a careful review of all of the evidence in light of the decided cases both by this Court and the Supreme Court, we conclude that the trial court erred in dismissing the complaint and in failing to grant the injunction sought.
Much of the record was consumed by what appears to have been an effort on behalf of the defendants to prove, first, that no demand had been made by the appellants for an end to the policies about which they complained, and, second, that, in fact, the policies of racial segregation about which hundreds of Negro citizens of Albany protested, and in connection with which protests they were frequently arrested, really did not exist at all. The fact is that several times during the course of the trial the Mayor of the City of Albany stated that a demand touching on these racial policies of the city had been made to him as the representative of the City Commission, and that any [651]*651change in the policy had been declined by him representing the Commission. Moreover, with respect to each of the facilities mentioned in the complaint, there was undisputed evidence, usually given by the defendants themselves, to the effect that the policies of segregation were then in effect so far as relates to the public facilities, and were required by City Ordinance, whether or not enforced by the defendants, with respect to the regulated private businesses.
First, with reference to whether the appellants, or any of them, had themselves been aggrieved by the segregation policies of the city of Albany, (assuming for the moment that such policies did exist) in response to the question, “When was the first time you ever received a communication or gained any knowledge of the existence of the Albany Movement?”, Mayor Kelly answered as follows : “That’s rather difficult to answer, in that I don’t recall when the organization was first identified as the Albany Movement. I do recall that Dr. Anderson, and I believe Marion Page, and I think C. B. King, and perhaps Slater King (both Dr. Anderson and Slater King are plaintiffs in this suit), I’m not sure, came to see me as early as February, 1961, to discuss the feelings of certain members of the Negro community; and I believe presented at that time a request to be submitted to the City Commission; which, in substance if I recall correctly, sought complete desegregation of all public facilities, but I am not clear as to exactly what the demand was at that time. At that time I indicated to Dr. Anderson and to the others present that in my judgment the proper forum for the relief they sought was in the Federal Court (Emphasis Added).”
Later, in response to a further question, Mayor Kelly testified that exhibit 7 2 was presented to him but he did not recall whether it was at a meeting or whether it was delivered “to us.” Then the following testimony took place:
“A. I recall seeing this, yes.
“Q. And that is the matter or document which you say requested desegregation of public facilities ?
“A. This is one of the documents which requests desegregation of all public facilities, yes.
“Q. What action has been taken on that petition?
“A. It was presented to the City Commission. It was the feeling of the City Commission that the request embraced too much, based on the long-term customs of this area, that it was not feasible at this time to consider complete desegregation ; and that the Albany Movement or the people representing the Albany Movement should properly resort to the Federal Courts for redress.”
There is no real dispute here but that literally thousands of people in the city of Albany associated themselves in the activities that all parties to this suit in the trial court repeatedly called the “Albany Movement.” Possibly the clearest indication of this is in a reply published by the City Commission in one of the local newspapers purporting to be an answer to the requests made by the Movement as above indicated. This reply is addressed “To the Leaders of the Albany Movement.” The reply did not deal with any of the specific requests contained in the petition quoted above, but called attention to the progress which had been made by the Negro citizens. It included the following paragraph:
“This Commission recognizes that the community is composed of white and Negro citizens, and that peace [652]*652and harmony must exist and endure. The achievement of these goals, however, does not lie in the flagrant violation of laws and ordinances, and the profane use of the church, the ministry and religion for the furtherance of political objectives.”
The following ten paragraphs all speak of benefits enjoyed by Negroes as a class within the city of Albany or the responsibilities of Negroes as a class and ended with the statement, “If the Negro leaders of Albany have a sincere desire to help earn acceptance for their people, they can accomplish far more by encouraging the improvement of their moral and ethical standards.” It is thus plain that not only did the plaintiffs here, both as the elected representatives of the unincorporated association called “The Albany Movement” and also, the recognized leaders of the Negro community, truly represent the Negro citizenship of the city of Albany in the demands that were being made upon the City government. We conclude, therefore, that there is no factual dispute but that the four plaintiffs were members of a class whose interests were the basis of demands made by them on the defendants and which the evidence clearly shows were rejected.
Assuming, as we do for the purpose of testing the action of the trial court here, that in order for there to be a justiciable controversy there must be a demand that there be an end to the racially discriminatory practices made by the class or some members of the class of which the named plaintiffs are members, there can be no doubt in the light of the testimony of the Mayor of the City of Albany that such demand was, in fact, made by at least two of the plaintiffs in this suit. Moreover, the record is replete with testimony that over an extended period constant picketing and demonstrations carried on by these named plaintiffs and many others repeatedly made the same demands on the city officials, who reacted uniformly by arresting these plaintiffs and many others while thus engaged.3
There is nothing in Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512, that requires a particular plaintiff in such a proceeding as this to [653]*653subject himself to arrest before he can attack the municipal or state policy of continued enforcement of segregation in public facilities. In fact that decision recognized the very right which the plaintiffs here sought to assert on behalf of the class. The Court’s statement there that “they cannot represent a class of whom they are not a part,” related only to the effort by the named plaintiffs who had not been arrested or prosecuted to enjoin actual prosecutions in the state courts of hundreds of Negro citizens who had actually been arrested, many of whom had been tried and convicted. They were not members of that class— they were, however, members of the class of Negro citizens who were adversely affected by the State’s policy of racial segregation. There is no requirement, as we have stated in Morrison v. Davis, et al., 5 Cir., 252 F.2d 102, at page 103:
“[T]o have incidents requiring arrests to have the rights of people declared.”
Thus it need not be shown that these individual plaintiffs actually subjected themselves to arrest in order to bring this action. The Supreme Court dealt with just such a situation in the case of Evers v. Dwyer, 358 U.S. 202, at page 204, 79 S.Ct. 178, at page 179, 3 L.Ed.2d 222, where, dealing with the right of a Negro to attack the validity of City Ordinances requiring segregated buses, the Court said:
“A resident of the municipality who cannot use transportation facilities therein without being subjected by statute to special disabilities necessarily has, we think, a substantial, immediate, and real interest in the validity of the statute which imposes the disability.”
It takes but little paraphrasing to apply this test to any publicly supported facilities of the city of Albany, and none at all, we think, to apply it to the bus, taxicab, and theatre ordinances in Albany which required that they be operated on a racially segregated basis. We hold, therefore, that it was error for the trial court to dismiss the complaint as not properly presenting a justiciable class action for the Court’s determination.
We next turn to a determination of the relief that should be accorded the appellants in the present posture of the case.
The suit seeking a preliminary injunction and a permanent injunction was filed on July 25,1962. It was finally set down for hearing by the trial court and submitted on the evidence on September 26, 1962. This was the first opportunity afforded the appellants for a full hearing on their motion for preliminary injunction. The trial court took the matter under advisement for more than four months and entered its order dismissing the complaint on February 14, 1963. A subsequent clarifying order was entered on March 15, 1963. After filing notice of appeal and perfecting the record, the appellants filed a motion in this Court for an injunction pending appeal, or, in the alternative, that the hearing of the case on the merits be accelerated. The latter action was taken and the case was set down for final hearing on the merits in this Court. Our reading of the record so clearly convinces us that, upon application of the proper legal principles, the trial court was without discretion to deny the injunction sought that we think it appropriate to direct that upon remand an injunction issue substantially as prayed.
We deal first with the facilities owned and operated by the city of Albany. These are the public parks, including the recreational facilities, such as tennis courts and swimming pools, the City library, known as the Carnegie Library, and the City auditorium. While there is much testimony in the record by which the City sought to make it appear that in fact the City swimming pools and tennis courts were not operated on a racially segregated basis, there can be no real dispute but that they are and have been so operated. In fact at the date of trial the Mayor testified that the swimming pools had been closed, clearly because, as he testified, he felt that it was [654]*654impracticable to operate the swimming pool on a racially desegregated basis. Equally, it was clear that until after the time of the trial, the Carnegie Library, used until then exclusively by white patrons, was racially segregated. A trustee of the Library Board, having testified that the custom of segregation was in effect, was asked whether it was dictated by the Board of Trustees. He answered, “That would be hard for me to answer specifically. When I was appointed to the Board, that custom was in force. It has been in force since that time. That’s all I can say.” Then the following questions and answers occurred:
“Q. This custom has been in force by the Board of Trustees ?
“A. That is correct.
“Q. Of the Carnegie Library ?
“A. Yes.
“Q. And, as a matter of fact, it presently is being enforced. Is that correct ?
“A. Yes, except the Library is not open, as you know. Neither the downtown branch nor the the Lee Street (Negro) branch.
“Q. Then up until such time it was closed it was maintained?
“A. That is correct.
“Q. Now, as regards to this information that you bring Mr. Robinson, with reference to status, the present status of the library, whose decision was it that these libraries would be closed ?
“A. As a matter of personal knowledge I can’t say, they were closed on the week end I happened to be out of the City. I have subsequently learned that they were closed by police action.”
Coming next to the City Auditorium, which is made the subject of one of the contentions in the complaint, it is not disputed that Dr. Anderson, one of the plaintiffs, had on at least four occasions, been required to sit in the auditorium according to a pattern of segregated seating. While the evidence is not clear as to the nature of some of the occasions, he testified that at least on one occasion he was attending a program open to the public. It is clear that he was thus not attempting to patronize it on an occasion when the auditorium had been leased or otherwise turned over to a private organization for a non-public use. While there is no City Ordinance requiring segregated seating in the City Auditorium, it was owned by the City and we think the record clearly shows that the practice and custom carried out by the City required such seating.
Since the Supreme Court affirmed the Fourth Circuit case of Dawson v. Mayor of the City of Baltimore, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774, affirming 220 F.2d 386, it has been “obvious that racial segregation in recreational activities can no longer be sustained as a proper exercise of the police power of the State.” For similar cases arising in this Circuit, see Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776; Tate v. Department of Conservation and Development, 352 U.S. 838, 77 S.Ct. 58, 1 L.Ed.2d 56; City of St. Petersburg v. Alsup, 5 Cir., 238 F.2d 830. See also as to a public library, Turner v. Randolph, 195 F.Supp. 677 (W.D.Tenn.1961), Cobb v. Montgomery Library Bd., 207 F.Supp. 880, (M.D.Ala.1962). As to a City Auditorium, see Flowers v. City of Memphis, Civ.No. 3958 (W.D.Tenn. July 11, 1962).
We next come to a consideration of the contention of the appellants that the trial court should have enjoined the City from enforcing its ordinances requiring City buses to maintain separate seating for white and Negro passengers, requiring taxicabs to carry either white or colored passengers, and to indicate by a sign on the outside of the cab which class was to be carried, and requiring white and colored patrons of theatx-es and other places of amusement to stand in [655]*655separate lines for the purchase of tickets.4
During the trial the Chief of Police and other officials of the city of Albany testified that they did not enforce these ordinances. However, there was ample evidence to the effect that persons who violated the ordinances had been subjected to arrest or other restrictions brought about solely by reason of the fact that their conduct ran counter to the conduct prescribed by the ordinance. For instance, it was proved that a Negro taxicab driver had been arrested and charged with disorderly conduct shortly before the trial when his only “disorderly” conduct was that he had carried two white service men at their request and without charge into the city limits from an adjoining military base. It was further testified that a white taxicab had refused to carry Negro passengers and announced that this refusal was based upon the policy that white cabs would not carry Negroes. It was undisputed that a young Negro woman, upon sitting on the front seat of a bus of the local bus company had been instructed by the driver that she should take a seat to the rear of the bus the next time she rode. She was also arrested but it was disputed as to whether her subsequent conduct entirely apart from the place of her seating warranted her conviction for breach of the peace. It was also undisputed that a Negro girl had been required to move to segregated seating within a theater and had been required to buy a ticket in a segregated line and that upon her appearing in the office of the manager to discuss the desegregation of the theater, she had been taken by the Chief of Police to the City Hall where he called the principal of her school and turned her over to the principal.
We think it clear that under these circumstances the principle announced in Peterson, et al. v. City of Greenville, 83 S.Ct. 1119, requires that an injunction forbidding the enforcement of these city ordinances, either directly or by treating a violation of them without more, as a breach of the peace or as a refusal to obey the orders of a police officer, is required.
As stated by the Supreme Court in the Peterson case, “It cannot be denied that here the City of Greenville, an agency of the State, has provided by its ordinance that the decision as to whether a restaurant facility is to be operated on a desegregated basis is to be reserved to it. When the State has commanded a particular result it has saved to itself the power to determine that result and thereby 'to a significant extent’ has ‘become involved’ in, and in fact, has removed that decision from the sphere of private choice. It has thus effectively determined that a person owning, managing or controlling an eating place is left with no choice of its own but must segregate its white and Negro patrons. The Kress management, in deciding to exclude Negroes, did precisely [656]*656what the city law required.” This language is clearly applicable to the Albany situation.
Finally, complaint is made of the fact that the City has arrested Negro patrons for seeking to use the previously white facilities at the interstate and intrastate bus terminal in the city of Albany. In fact, it appears from the record before us that much of the picketing and demonstrations that followed in Albany stemmed originally from the failure of the city of Albany to recognize the validity of the Interstate Commerce Commission orders made effective in November, 1961, forbidding segregated ticket, waiting room, eating or other facilities in railroad or bus stations serving interstate transportation. It is clear that disorderly conduct charges were made against Negroes whose “disorderly” conduct was that they sought to make use of the bus station’s white eating facilities. The repeated denial by the city officials that this was not being done was couched in terms of the city’s not enforcing its segregation statutes. The denials are not consistent with the actual facts as testified to by the Chief of Police. These facts make it clear that a number of persons had been arrested merely because they were present in the bus station’s areas formerly reserved for white persons, and other persons, principally white, were gathering in numbers sufficiently large to cause what the Chief of Police considered a threat of disorderly conduct. He testified clearly that all the arrested Negroes were doing was “walking and sitting in this area which was made up of both white and Negro.” He testified that they did not use profane language, they did not strike anybody, they were normally dressed, they did not make any unusual noise and did not insult anybody. Moreover, it appears that as recently as July 1962, shortly before the hearing, he arrested several Negroes who sought to use the eating facilities at the Trailways Bus Station, and were charged by the manager with trespass.5
This conduct, of course, also brings the enforcement of the trespass law as to the bus station clearly within the principle of the Peterson case, because the Chief of Police testified that there was a local ordinance requiring segregated eating facilities.6
The arrest of persons at the request of the manager of the bus station lunch room, therefore, clearly falls afoul the proscription announced in the Peterson case.
In affidavits filed in this Court pending appeal, the appellees undertake to show the following changes in the factual situation with respect to the matters in controversy:
(1) All of the segregation ordinances of the City of Albany have been repealed effective March 6,1963.
(2) By City Ordinance the large white swimming pool has been offered for sale to the highest bidder, and bids have been received under which an offer has been made for the purchase of the said swimming pool; the Negro swimming pool is closed by order of the appellees.
(3) The main, or “white,” public library in downtown Albany and the “Negro” branch have been opened as of March 11, 1963, without regard to color.
[657]*657The appellees here urge that the case has become moot by reason of these facts. So far as relates to the closing of the recreational facilities, this contention has been clearly answered by this Court in City of Montgomery, Alabama v. Gilmore, 5 Cir., 277 F.2d 364, where we said:
“The appellants’ contention that the ordinance and the policy or custom of enforced racial segregation became moot when the City closed its paries is completely answered in the opinion of the district court and in the cases there cited.” 7
As stated by Judge Bell of this Court, in his order denying emergency relief pending appeal in this case, it is proposed that the City of Albany sell its recreational facilities, or some of them, to purchasers who have already announced that they will be operated on a racially segregated basis. As a result, appellants have heretofore requested this Court to enjoin such sale on the ground that this would be a continued operation by the city and thus be state action which should be enjoined in this pending proceeding. We do not consider that the factual situation dealing with this sale has been sufficiently disclosed to enable us to decide this issue. It is still open for inquiry by the trial court in light of our decision in this case.
However, it is plain that the mere voluntary closing of the facilities after the filing of the instant suit cannot make moot the petition of the appellants seeking a permanent injunction against further conduct by the respondents which, at the time the suit was filed, was being engaged in by them.
The same principle applies to the repeal of the segregation ordinances long after the suit was filed and the matter submitted to the trial court. The passage of City Ordinances is a matter of regular action by the Commission of the City of Albany. What has been adopted can be repealed, and what has been repealed can be re-adopted. We conclude, therefore, that the plaintiffs are entitled to have their injunction against state action depriving them of their constitutional rights, based on the record at the time the case was tried.
At the time of the dismissal by the trial court of this proceeding, there was also pending before that court a suit filed by the appellants for an injunction against the same defendants, or at least a part of them, seeking to enjoin the officials of the city of Albany from arresting Negro citizens of Albany for conduct which the plaintiffs asserted to be a legal exercise of their rights under the First Amendment to the United States Constitution to demonstrate and petition against city policies. Evidence was taken by the trial court dealing with the many arrests that were made by the city officials of named plaintiffs and other Negroes. Such arrests were usually made for a failure to secure a permit to conduct a parade, for disorderly conduct, for blocking traffic or some similar charge. While it is plain, and it is not denied by the appellees here, that prosecutions under the guise of constitutionally worded statutes and ordinances may not be used to deprive persons of the right to do what the Constitution permits,8 the degree to which peaceful protest may be subject to restrictions for the safety or convenience of the general public poses a difficult question which must necessarily be dependent upon the facts of the particular ease. The United States Supreme Court has dealt with such a situation in Edwards v. South [658]*658Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 and Fields v. South Carolina, 372 U.S. 522, 83 S.Ct. 887, 9 L.Ed.2d 965.
In view of the fact that the trial court has not made any findings of fact dealing with the particular incidents of arrest, and thus, of course, has made no application of the legal principles to the facts, we think it inappropriate for us at this time to undertake to deal with the appellants’ claim for injunctive relief that has been made in the other suit. The trial court consolidated the cases for the purpose of permitting the testimony to be considered in both of them and we have thus considered testimony given in both cases. We need not consider whether the cases have been so consolidated as to permit our granting the relief in the other suit, which specifically sought this injunction. Proper judicial administration requires that this matter be first passed upon by the trial court. In light of our decision in the case here before us and the legal principles disposed of, we think it appropriate to say that appellants are entitled to a prompt decision on this matter at the hands of the trial court.
The judgment of the trial court is reversed and the case remanded with directions that an in junction issue consistent with this opinion.
Having accelerated the disposition of this ease by reason of the fact that deprivation of constitutional rights is continuing, we consider it appropriate to, and do, direct that the mandate of this Court issue forthwith.