author: RENFREW, District Judge:

text:
    LEAGUE TO SAVE LAKE TAHOE et al., Plaintiffs-Appellants, v. TAHOE REGIONAL PLANNING AGENCY et al., Defendants-Appellees.
    No. 73-3611.
    United States Court of Appeals, Ninth Circuit.
    Nov. 22, 1974.
    Certiorari Denied March 17, 1975.
    See 95 S.Ct. 1398.

      Coleman A. Blease of Karlton, Blease & Vanderlaan (argued), Sacramento, Cal., for plaintiffs-appellants.
    Claire H. Greve (argued), of Johnson, Greve & Clifford, Sacramento, Cal., Forrest A. Plant (argued), Sacramento, Cal., for defendants-appellees.
    Before KOELSCH and CHOY, Circuit Judges, and RENFREW, District Judge.

       The Honorable Charles B. Renfrew, United States District Judge, Northern District of California, sitting by designation.

   OPINION

RENFREW, District Judge:

In 1968 the states of California and Nevada entered into a compact to create a regional agency with extensive powers to regulate and control development within the Lake Tahoe Basin in order to protect the natural resources and ecological balance of the area. In December of 1969 Congress gave its consent to the compact as provided for in Article I, § 10, cl. 3 of the United States Constitution.

The Tahoe Regional Planning Compact (“Compact”) created Tahoe Regional Planning Agency (“TRPA”) and charged it with responsibility for developing within ninety days a regional interim plan and, within eighteen months, a re'gional plan which would reflect a wide variety of economic, environmental and social considerations. The Compact also directed the TRPA to adopt all ordinances, rules, regulations and policies necessary to effectuate the regional interim plan and the regional plan.

The League to Save Lake Tahoe, the Sierra Club and two individuals who reside in the Tahoe area (“appellants”) brought this action for declaratory and injunctive relief alleging, basically, that defendant TRPA has failed to comply with the legal requirements of the Compact. They contend that TRPA has failed to adopt a regional plan as required by the Compact, has failed to adopt certain implementing ordinances mandated by the Compact, has adopted other ordinances which are defective, and has failed to prepare a detailed environmental analysis as required by the Compact. In particular, appellants charge that defendant TRPA has granted “approval” to the development projects of defendants Thomas Raley, Park Cattle Company and Harvey’s Wagon Wheel, Inc., in violation of the Compact.

Jurisdiction in the district court was predicated solely on 28 U.S.C. § 1331(a). On defendants’ motion, the District Court dismissed the action without prejudice on the ground that it lacked jurisdiction over the subject matter of plaintiffs’ claims. Appellants now appeal that determination.

The appeal here presents but a single issue, yet one of first impression: whether a federal court has original jurisdiction over this suit as one arising under the Constitution, laws or treaties of the United States. For the reasons developed in this opinion, we hold that it does, and we reverse the decision below.

Appellants advance two arguments in support of their contention that the construction of a Congressionally sanctioned interstate compact is a matter of federal law. First, they argue that Congressional consent transforms the Compact into a law of the United States. Second, they urge that the construction of an interstate compact requires the application of federal “common law” which is law of the United States within the meaning of § 1331(a). Because we agree with the first argument asserted by appellants, we have no occasion to consider the second.

For this case to be within the purview of § 1331(a), a right or immunity created by the Constitution or laws of the United States must be an essential element of plaintiffs’ claim. The gravamen of the complaint is the alleged failure of TRPA to comply with the requirements of the Compact in various particulars. To determine the nature and scope of these requirements requires a construction of the Compact. Such construction, therefore, forms an essential element of the complaint. Thus, if the Compact can properly be characterized as a “law” of the United States, then federal jurisdiction is established.

Counsel have not cited nor has independent research revealed any decision by the Supreme Court or any of the Circuit Courts of Appeals which deals directly with this issue.

The Supreme Court has, however, in a series of eases considered the status of interstate compacts in connection with its certiorari jurisdiction. See Delaware River Com’n v. Colburn, 310 U.S. 419, 60 S.Ct. 1039, 84 L.Ed. 1287 (1940); Dyer v. Sims, 341 U.S.. 22, 71 S.Ct. 557, 95 L.Ed. 713 (1951). In these cases the Court addressed the question of whether a claim based on an interstate compact is cognizable under the provision for Supreme Court review, by writ of certiorari, of judgments of the highest state court where “any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of * * * the United States.” 28 U.S.C. § 1257(3). In Colburn the Court unequivocally answered this question in the affirmative, holding that “the construction of such a [bi-state] compact sanctioned by Congress by virtue of Article I, § 10 cl. 3 of the Constitution, involves a federal ‘title, right, privilege or immunity’ which when ‘specially set up or claimed’ in a state court may be reviewed here on certiorari under § 237(b) of the Judicial Code [the predecessor of § 1257(3)].” 310 U.S. at 427, 60 S.Ct. at 1041. The Court has reaffirmed this holding in Dyer, 241 U.S. at 26, 71 S.Ct. 557, 95 L.Ed. 713.

In reaching this interpretation of the certiorari statute, Colburn and its progeny have firmly established that the eon-struction of a compact, by virtue of Congressional consent, presents a federal question. This result has its genesis in the case of Pennsylvania v. The Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518, 15 L.Ed. 435 (1851), wherein the court stated that “this compact [the Virginia-Kentucky Compact of 1789] by the sanction of Congress, has become a law of the Union. What further legislation can be desired for judicial action?” 54 U.S. at 565, 15 L.Ed. 435 Although later decisions created considerable doubt as to the continued validity of that doctrine, Colburn has put these doubts to rest.

While the Court in Colburn felt it unnecessary to clearly articulate the basic premise of its decision, we conclude after careful investigation that the result there was based upon the implicit finding that the interstate compact involved was a “statute of the United States” within the meaning of 28 U.S.C. § 1257(3). Neither logic nor policy justifies a different interpretation of the substantially similar language in 28 U.S.C. § 1331(a). Therefore, a case involving the construction of an interstate compact which requires a judicial determination of the nature and scope of obligations set forth therein “arises” under the “laws” of. the United States within the meaning of § 1331(a).

We do not, of course, ignore the significant differences between original jurisdiction in the federal courts and certiorari jurisdiction in the Supreme Court. The test for determining whether a case involves substantial federal issues at the very outset of litigation differs from the test for making that determination after the case has passed through a state judicial system. For this reason in cases in which there is a claim of original jurisdiction, there is the Gully requirement that the federal question form an “essential element” of the plaintiff’s complaint. No such requirement exists with respect to certiorari jurisdiction. There it is the record in the state tribunal and not the original complaint which must support the claim of a federal question. See Mishkin, The Federal Question in the District Courts, 53 Co-lum.L.Rev. 157, 164 — 165. To erect, in addition, a distinction between what constitutes a federal law for certiorari purposes and what constitutes a federal law for original jurisdiction purposes would be artificial, unnecessary and irrational; we decline, therefore, to do so. The Compact must be deemed a law of the United States under Colburn and the requirements of Giilly have been satisfied in this case. Therefore, jurisdiction should have been sustained in the district court under § 1331(a).

Furthermore, post-Colburn decisions of the Supreme Court and strong policy considerations support this result. Appellees have argued that the need for a final arbiter of • compact disputes requires only certiorari jurisdiction, and that the desirability of having state courts decide matters of state law, such as zoning and land use control, before that arbitration is undertaken precludes original jurisdiction in the federal courts. We disagree. The Supreme Court has made it clear that the construction of an interstate compact is a matter of federal law, not the law of the party states.' Petty v. Tennessee-Missouri Bridge Com’n, supra, 359 U.S. at 279—280, 79 S.Ct. 785, 3 L.Ed.2d 804. State court consideration, therefore, cannot constitute a necessary predicate to proper construction of a compact.

' Moreover, interstate compacts frequently involve not only local concerns of the states involved, but also important national interests. Dyer v. Sims, supra, 341 U.S. at 27, 71 S.Ct. 557, 95 L.Ed. 713. See also Petty, supra, 359 U.S. at 282, n. 1, 79 S.Ct. 785, 3 L.Ed.2d 804. The instant Compact deals with much more than mere local concerns such as zoning and land use. It addresses the environmental problems of an area not subject to the control of a single state. In addition to the specific Congressional concern for the subject of this Compact, evidenced by the statement of purpose accompanying the consent, the national legislature has with increasing frequency evinced a strong interest in solving environmental problems, which by their very nature transcend state boundaries, through interstate cooperation. See, e. g., The Clean Air Act, 42 U.S.C. § 1857 et seq., specially §§ 1857 and 1857a, and the National Environmental Policy Act, 42 U.S.C. § 4331 et seq. The result reached here serves those important national interests.

It is therefore most appropriate to sustain jurisdiction under 28 U.S.C. § 1331(a) over a case involving the construction of the Tahoe Regional Planning Compact.

Accordingly, we reverse the decision below and remand for further proceedings consistent with this opinion.

      . Cal.Govt.Code § 66800 et seq. (West Supp. 1974), Nev.Rev.Stat. 277.190 et seq. (1971). Article I of the Compact expresses the joint concern over the area and establishes the purposes of the compact:
      “(a) It is found and declared that the waters of Lake Tahoe and other resources of the Lake Tahoe region are threatened with deterioration or degeneration, which may endanger the natural beauty and economic productivity of the region.
      “(b) It is further declared that by virtue of the special conditions and circumstances of the natural ecology, developmental pattern, population distribution and human needs in the Lake Tahoe region, the region is experiencing problems of resource use and deficiencies of environmental control.
      “(c) It is further found and declared that there is a need to maintain an equilibrium between the region’s natural endowment and its manmade environment, to preserve the scenic beauty and recreational opportunities of the region, and it is recognized that for the purpose of enhancing the efficiency and governmental effectiveness of the region, it is imperative that there be established an areawide planning agency with power to adopt and enforce a regional plan of resource conservation and orderly development, to exercise effective environmental controls and to perform other essential functions, as enumerated in this title.

      . Article I, § 10 cl. 3 of the United States Constitution provides:
      “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.’’
      The consent was given in Pub.L. 91-148, 83 Stat. 360 (1969), an act which contained, in addition to the consent and the language of the Compact, a general statement of Congressional purpose and several specific conditions imposed by Congress. Appellants’ complaint did not raise any question as to the construction or application of any of these Congres-sionally imposed conditions.

      . Affirmative approval has been given only to the project of defendant Raley. TRPA, by a split vote, failed to approve the project of defendants Park Cattle Company and Harvey’s Wagon Wheel. Appellees contend that by operation of Article VI(k) of the Compact these projects may be deemed approved. That article provides:
      “Whenever under the provisions of this article or any ordinance, rule, regulation or policy adopted pursuant thereto, the agency is required to review or approve any proposal, public or private, the agency shall take final action, whether to approve, to require modification or to reject such proposal, within 60 days after such proposal is delivered to the agency. If the agency does not take final action within 60 days, the proposal shall be deemed approved.”
      Appellants urge that a split vote on these projects cannot constitute failure to take “final action” within the meaning of Article VI(k) and, alternatively, that if those projects would be deemed approved, they violate the provisions of the Compact.

      . 28 U.S.C. § 1331(a) provides:
      “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000 exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.”

      . Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936).

      . Several district court decisions have been cited as authority that § 1331(a) jurisdiction does not lie in cases involving interstate compacts. We have reviewed these decisions carefully, and we do not find them to be persuasive and, in some cases, even apposite to the precise issue before us.
      In Delaware River Joint Toll Bridge Com’n v. Stults, 146 F.Supp. 241 (D.N.J.1956), plaintiff’s claims were for money had and received; the compact was involved only because it was the legislation which had created the plaintiff Commission. Plaintiff’s claims thus did not “arise under” the compact and regardless of the federal or nonfed-eral character of that compact, jurisdiction under § 1331(a) would have been improper. Relying upon Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 the court held that since the respective rights of the parties were to be determined by local law, no federal question was presented.
      In Port Authority Bondholder Pro. Comm, v. Port of N. Y. Auth., 270 F.Supp. 947 (S.D. N.Y.1967), the district court dismissed an action involving the construction of an interstate compact, concluding that such a claim did not arise under a law of the United States within the meaning of § 1331(a). Although the Court of Appeals for the Second Circuit, per Friendly, J., did not reach this question, it indicated that the District Court may have erred in its conclusion. 387 F.2d 259, 261 n. 1 (2d Cir. 1967). The Court of Appeals found that the allegations in that case concerning actions of the Port Authority beyond the scope of Congressional consent to the compact gave rise to a claim under the Constitution. The court also found, however, that the constitutional claim was insubstantial in light of prior adverse decisions of the United States Supreme Court and affirmed the district court on that basis. 387 F.2d at 262-263.
      In Kheel v. Port of New York Authority, 331 F.Supp. 118, 120-121 (S.D.N.Y.1971), aff’d on other grounds, 457 F.2d 46 (2d Cir. 1972), cert. denied, 409 U.S. 983, 93 S.Ct. 324, 34 L.Ed.2d 248 (1972), the district court dismissed a claim involving the same compact but did so on the grounds adopted by the Second Circuit in Bondholders.
      In Rivoli Trucking Corp. v. American Export Lines, 167 F.Supp. 937 (E.D.N.Y.1958), the court found no federal question jurisdiction under § 1331(a) in a compact case, but the decision contains an alternate holding that the plaintiffs’ claims were within the exclusive'jurisdiction of the Federal Maritime Board. 167 F.Supp. at 940. Further, in reaching its conclusion on § 1331(a) jurisdiction, the court relied primarily on Hinderlider v. La Plata River and Cherry Creek Ditch Co., 304 U.S. 92, 58 S.Ct. 803, 82 L.Ed. 1202 (1938). See note 8, infra, for a discussion of the impact of Delaware River Com’n v. Colburn, 310 U.S. 419, 60 S.Ct. 1039, 84 L.Ed. 1287 (1940) upon Hinderlider.

      Of the district court opinions which have been examined, only one, in dictum, cogently argues in any detail against § 1331(a) jurisdiction in a case arising under an interstate compact, and it predates the critically important decision of the Supreme Court in Petty v. Tennessee-Missouri Com’n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959). The case, Delaware River Joint Toll Bridge Com’n v. Miller, 147 F.Supp. 270 (E.D.Pa.1956), involved the compact considered in Stults, supra, and presented similar claims for money had and received. The decision, like Stults, rests on the failure of the complaint to satisfy the requirements of Gully v. First National Bank. See 147 F.Supp. at 274. Judge Van Dusen, the author of the opinion, went on to indicate that, Gully problems aside, rights asserted under an interstate compact lack the requisite federal character to sustain jurisdiction under § 1331(a). The subsequent decision of the Supreme Court in Petty v. Tennessee-Missouri Com’n, supra, holding that the construction of a compact sanctioned by Congress is a matter of federal law, has, however, eroded the major premise of Judge Van Dusen’s argument. See notes 11 and 12, infra, for a full discussion of that argument and the effect of Petty upon it.
      In contrast to the authorities cited by ap-pellees, appellants rely upon a single case which they argue supports their position. That case, involving the very bi-state compact here in issue, sustained jurisdiction under 28 U.S.C. § 1331(a). Brown v. Tahoe Regional Planning Agency, Civil No. R12773 (D.Nev. May 23, 1973). That* case is not persuasive here because it involved a claim for inverse condemnation clearly arising under the Fifth Amendment. The court did note, however, that “[tjhe case arises under the Constitution and laws of the United States, involving the interpretation and application of Public Law 91-148 [The Tahoe Regional Planning Compact] and of the Fifth Amendment to the Constitution of the United States. Brown, supra, at p. 2 (emphasis supplied).

      . The Virginia-Kentucky Compact provided that “the use and navigation of the River Ohio, so far as the territory of the proposed state [Kentucky], or the territory that shall remain within the limits of this Commonwealth [Virginia] lies thereon, shall be free and common to the citizens of the United States.” 54 U.S. at 564-565, 15 L.Ed. 435. Wheeling was a suit by Pennsylvania to enjoin the construction of a bridge in Virginia across the Ohio River. The Court first noted that, to constitute an actionable nuisance, the bridge had to be found in violation of state or federal law. Since the State of Virginia had expressly approved the construction of the bridge, the only source of a possible violation was federal law. The court concluded that the Virginia-Kentucky Compact of 1789 was, by virtue of congressional consent, a federal law, and that the bridge contravened the provision of that compact set forth above. The requested relief was therefore granted. 54 U.S. at 578, 15 L.Ed. 435.

      . The Court in Colburn did not explicitly set forth a doctrinal basis for its conclusion that a claim based on the construction of an interstate compact involves a federal right, title or immunity for purposes of sustaining jurisdiction in certiorari cases from state courts. Appellees strenuously argue that Colburn does not rest on the law of the Union doctrine but rather upon the applicability of federal common law to the construction of certain compacts. In support of this interpretation of Colburn, they rely on People v. Central Railroad, 79 U.S. 455, 20 L.Ed. 458 (1872), and Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 58 S.Ct. 803, 82 L.Ed. 1202 (1938). This reliance is misplaced. Clearly both cases rejected the law of the Union doctrine, 79 U.S. at 455, 20 L.Ed. 458 and 304 U.S. at 109, 58 S.Ct. 803, 82 L.Ed. 1202. It is equally clear, however, from a careful reading of Colburn that Col-burn disapproves both holdings on this point. The Court said in Colburn: “In People of New York v. Central Railroad * * * jurisdiction of this Court to review a judgment of a state court construing a compact between states was denied on the ground that the Compact was not a statute of the United States and that the construction of the Act of Congress giving consent was in no way drawn in question, nor was any right set up under it. This decision has long been doubted, see Hinderlider v. La Plata Co., 304 U.S. 92, 110, note 12, and we now conclude that the construction of such a compact sanctioned by Congress by virtue of Article I § 10 Clause 3 of the Constitution, involves a federal ‘title, right, privilege, or immunity’ which when ‘specially set up or claimed’ in a state court may be reviewed here on certiorari * 310 U.S. at 427, 60 S.Ct. at 1041.
      It can hardly be disputed that Colburn has expressly overruled Central Railroad on the question of the viability of the law of Union doctrine.
      In arriving at our decision we do not overlook that the law of the Union doctrine may be said, under some circumstances, to present certain theoretical problems, e. g., impermissible delegation of congressional legislative power to the states in cases where Congressional consent precedes the compact. For an exhaustive analysis of this subject, see Engdahl, Construction of Interstate Compacts: A Questionable Federal Question, 51 Va.L.Rev. 987, 1013-1026 (1965). The possibility, however, that there may be problems in potential cases does not alter our duty to follow the mandate of Colburn.

      . In pertinent part the two statutes provide:
      “Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
      “(3) By writ of certiorari, * * * where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties, or statutes of, or commission held or authority exercised under, the United States.” 28 U.S.C. § 1257.
      “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy * * * arises under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331(a).
      Both an able commentator and an eminent jurist have concluded that the Colburn line of decisions establishes the propriety of § 1331(a) jurisdiction over claims arising under an interstate compact. See Engdahl, Construction of Interstate Compacts: A Questionable Federal Question, supra, 51 Va. L.Rev. at 1026, and the opinion of Judge Henry J. Friendly in Port Authority Bondholders Pro. Comm. v. Port of N. Y. Auth., supra, 387 F.2d at 261 n. 1.

      . See the text of the opinion accompanying note 5, supra.

      . The cases which discuss the distinction between § 1257(3) jurisdiction and § 1331(a) jurisdiction confirm this view. See Jordine v. Walling, 185 F.2d 662 (3d Cir. 1950) and Doucette v. Vincent, 194 F.2d 834 (1st Cir. 1952). Both cases involved the question whether § 1331(a) jurisdiction exists over a claim for maintenance and cure based on general maritime law, as distinguished from a suit in admiralty brought under the admiralty rules. The cases reached contrary conclusions on this point and the controversy was resolved against § 1331(a) jurisdiction in Romero v. International Term. Co., 358 U.S. 354, 359-380, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). In the course of resolving the question concerning general maritime law, which is of course not relevant here, both lower courts noted the distinction between certiorari and original jurisdiction over claims based on federal law. Analysis of those cases reveals, however, that this distinction does not rest upon differing constructions of the two statutes as to what constitutes a law of the United States; rather it rests upon the differing stages of litigation at which the jurisdictional determination must be made, a difference to which the Gully requirement responds. Jordine, supra, 185 F.2d at 668; Doucette, supra, 194 F.2d at 845-846.

      . Perhaps the most articulate statement of this position is contained in Judge Van Du-sen’s opinion in Delaware River Joint Toll Bridge Com’n v. Miller, supra, 147 F.Supp. at 274 nn. 14 and 16. That the opinion predates Petty, supra, considerably diminishes the force of the arguments made therein. See note 13, infra. Moreover, Judge Van Dusen relied heavily upon the distinction between § 1257(3) jurisdiction and § 1331(a) jurisdiction made in Jordine, supra, and also considered in Doucette, supra. As we pointed out in note 11, supra, those cases do not support the conclusion reached in Miller.

      . Petty represents a significant clarification of prior law on this point. Colburn and Dyer held that a claim based on an interstate compact involved a federal right, title or immunity. In Dyer, however, Mr. Justice Frankfurter, speaking for the Court, intimated that this characterization did not contemplate that federal law would supplant state law as the source of the governing rules of decision in a compact case; rather that the Supreme Court would be the final expositor and arbiter of the applicable state laws. 341 U.S. at 28-31, 71 S.Ct. 557, 95 L.Ed. 713. In Dyer the Supreme Court of Appeals of West Virginia had held that certain provisions of the West Virginia Constitution prohibited West Virginia’s participation in the Ohio River Valley Water Sanitation Compact. The Supreme Court concluded that “[t]he Supreme Court of Appeals of the State of West Virginia is, for exclusively State purposes, the ultimate tribunal in construing the meaning of her Constitution.” 341 U.S. at 28, 71 S.Ct. at 561. The Court went on, however, to conclude that, insofar as a state constitution affected obligations under an interstate compact, the highest state court was not the ultimate tribunal in construing that constitution and reversed on the basis of its own construction of the applicable provisions of the West Virginia Constitution. “A State cannot be its own ultimate judge in a controversy with a sister State. To determine the nature and scope of obligations as between States, whether they arise through the legislative means of compact or the ‘federal common law’ governing interstate controversies (Hinderlider v. La Plata Co., 304 U.S. 92, 110 [58 S.Ct. 803, 811, 82 L.Ed. 1202]), is the function and duty of the Supreme Court of the Nation. Of course every deference will be shown to what the highest court of a State deems to be the law and policy of its State, particularly when recondite or unique features of local law are urged. Deference is one thing; submission to a State’s own determination of whether it has undertaken an obligation, what that obligation is, and whether it conflicts with a disability of the State to undertake it is quite another.” 341 U.S. at 28, 71 S.Ct. at 560.

        Petty involved the question of whether a “sue and be sued” clause in an interstate compact constituted a waiver of the party states’ immunity under the Eleventh Amendment. The court conceded that under the applicable decisions of both the party states, such a clause would not constitute a waiver of immunity but concluded, by reference to the Congressional intent, that the clause constituted such a waiver. 359 U.S. at 279-281, 79 S.Ct. 785, 3 L.Ed.2d 804. Mr. Justice Frankfurter strongly dissented on the basis of his opinion in Dyer. 359 U.S. at 284—285, 79 S.Ct. 785, 3 L.Ed.2d 804. Thus, any rights or obligations created by an interstate compact are federal, not state, in character. As a result, there can be no doubt of the propriety of original jurisdiction in the federal courts in the case before us, despite the legitimate and far-reaching interests of the party states. See Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 674-679, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974).

      . The text of that statement is as follows:

        “Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled,
        That in order to encourage the wise use and conservation of the waters of Lake Tahoe and the resources of the area around said lake, the consent of the Congress is hereby given to the Tahoe regional planning compact * * *. Public Law SIMS, December 18, 1969.”

      . In pertinent part the Clean Air Act provides:
      “(a) The Congress finds—
      “(1) that the predominant part of the Nation’s population is located in its rapidly expanding metropolitan and other urban areas, which generally cross the boundary lines of local jurisdictions and often extend into two or more States;
      ”(2) that the growth in the amount and complexity of air pollution brought about by urbanization, industrial development, and the increasing use of motor vehicles, has resulted in mounting dangers to the public health and welfare, including injury to agricultural crops and livestock, damage to and the deterioration of property, and hazards to air and ground transportation;
      * * % # Hi *
      “(4) that Federal financial assistance and leadership is essential for the development of cooperative Federal, State, regional, and local programs to prevent and control air pollution.
      “(b) The purposes of this subchapter are—
      “(1) to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population;
      ******
      “(4) to encourage and assist the development and operation of regional air pollution control programs.” 42 U.S.C. § 1857.
      “(a) The [Administrator] shall encourage cooperative activities by the States and local governments for the prevention and control of air pollution; encourage the enactment of improved and, so far as practicable in the light of varying conditions and needs, uniform State and local laws relating to the prevention and control of air pollution; and encourage the making of agreements and compacts between States for the prevention and control of air pollution.
      Jft * * # * *
      “(c) The consent of the Congress is hereby given to two or more States to negotiate and enter into agreements or compacts, not in conflict with any law or treaty of the United States, for (1) cooperative effort and mutual assistance for the prevention and control of air pollution and the enforcement of their respective laws relating thereto, and (2) the establishment of such agencies, joint or otherwise, as they may deem desirable for making effective such agreements or compacts. No such agreement or compact shall be binding or obligatory upon any State a party thereto unless and until it has been approved by Congress. It is the intent of Congress that no agreement or compact entered into between States after November 21, 1967, which relates to the control and abatement of air pollution in an air quality control region, shall provide for participation by a State which is not included (in whole or in part) in such air quality control region.” 42 U.S.C. § 1857a.
      The Congressional Statement of Policy in the National Environmental Policy Act specifies:
      “(a) The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” 42 U.S.C. § 4331 (emphasis supplied).
      The Act concerns itself primarily with the activities of the federal government. The reference, however, to cooperation with state and local governments in § 4331 and the awareness, reflected in the legislative history, that many, if not most, environmental problems cross state boundaries (see House Report 91-378, 1969 U.S. Congressional and Administrative News, p. 2751 at 2757, 2758) indicate the national importance of, and interest in, interstate attempts to address environmental concerns.


source: Caselaw Access Project

author: LEWIS, Chief Judge.

license: Public Domain

text:
    Dorothy Mae GARDNER, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant. Mazie M. JOHNSON, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant. Alice J. VAN LEWEN, Individually, et al., Plaintiffs-Appellees, v. GENERAL MOTORS CORPORATION, Defendant-Appellant.
    No. 73-1966.
    United States Court of Appeals, Tenth Circuit.
    Argued July 12, 1974.
    Decided Dec. 16, 1974.

      William H. Hazlitt, Denver, Colo. (Michael E. Oldham and Thomas H. Barrows, Weller, Friedrich, Hickisch & Hazlitt, Denver, Colo., and Ross L. Malone, of counsel, Gen. Motors Corp., Detroit, Mich., on the brief), for defendant-appellant.
    Thomas J. Constantine, Hindry & Meyer, Denver, Colo., for plaintiffs-ap-pellees Van Lewen.
    Richard W. Laugesen, Dosh, DeMoulin, Anderson & Campbell, Denver, Colo., for plaintiff-appellee Johnson.
    Bennett S. Aisenberg, Gorsuch, Kirgis, Campbell, Walker & Grover, Denver, Colo., for plain tiff-appellee Gardner.
    Before LEWIS, Chief Judge, and BREITENSTEIN and BARRETT, Circuit Judges.
   LEWIS, Chief Judge.

This is a product liability case involving a 1966 three-quarter ton pickup truck manufactured and sold new by General Motors Corporation (GMC). The appeal is taken by GMC from judgments aggregating approximately $700,000 in actions brought and consolidated in the District Court for the District of Colorado under the Colorado Wrongful Death Act for the deaths of the husbands of the named plaintiffs. Each of the decedents had died from inhalation of massive quantities of carbon monoxide claimed by plaintiffs to be legally attributable to GMC through negligent design and marketing of the subject truck. Certain of the facts are not in dispute.

The truck was specifically advertised by GMC as one suitable for the installation and carrying of a camper unit. The purchaser, decedent Van Lewen, had installed such a unit, purchasing it new from Colorado Camp-R-Land. That company installed the camper in standard fashion by drilling holes through the truck bed and securing the unit to the bed with bolts, washers and blocks. The camper was basically a wood frame covered with plywood on the inside and aluminum sheeting on the exposed outside walls. The unit contained a dinette area, an upper bunk, two sinks, a propane gas stove and oven, a propane gas light, and some cupboards. GMC makes no claim of liability avoidance through the fact of the camper addition or its installation.

On October 31, 1969, decedents went on a weekend hunting trip in Grand County, Colorado, anticipating a return to their homes on Sunday evening, November 2. They did not return. On November 5, the pickup camper was found by searchers parked alongside Beaver Creek Road at an elevation of 8800 feet. The ignition was “on”, the gears were in neutral, the gas gauge read empty, and the car battery was dead. Inside the camper the stove was off, the propane light was on but fuel exhaustion was so complete as to allow only an occasional flickering, and the windows were closed. The men were inside the camper, two seated at the table with unfinished cups of coffee and the third partially on the cot. Each was dead.

Plaintiffs’ basic claim to liability has no complexities as such. The subject truck was equipped at the time of sale and at the time of decedents’ deaths wr h a tail pipe that discharged engine e. • haust at a point beneath the approximate center of the truck bed and thus directly under the camper. They claim a defective design as the proximate cause of the deaths. GMC argues that plaintiffs failed to prove either a defective design or causation by competent proof or at all. We have no difficulty in rejecting the latter aspect of GMC’s claim of error.

Following a month-long trial, the jury was instructed on three theories of recovery advanced by the plaintiffs: (1) GMC’s negligence in regard to the design of the truck’s exhaust port location; (2) GMC’s breach of warranty in regard to the suitability of the truck for camper installation and use; (3) GMC’s breach of its duty in strict liability. We conclude that each theory is legally acceptable under the evidence.

Defective Design and Causation

In our consideration the verdict of the jury is entitled to that view of the evidence most favorable to plaintiffs, drawing all reasonable inferences and resolving all factual conflicts in accord with support for the verdicts. Westinghouse Credit Corp. v. Green, 10 Cir., 384 F.2d 298, 301; Union Carbide & Carbon Corp. v. Nisley, 10 Cir., 300 F.2d 561, 590, appeal dismissed sub nom., Wade v. Union Carbide & Carbon Corp., 371 U.S. 801, 83 S.Ct. 13, 9 L.Ed.2d 46. In addition to the undisputed facts recited other evidence gives basic support to plaintiffs’ case. Eleven inches of snow surrounded the camper with a much lesser amount underneath the vehicle. Carbon monoxide is odorless, invisible, extremely lethal, and of light density, thus causing it to rise. The floor of the camper was sufficiently porous to allow seepage and the heat of the camper combined with the partial trappage of the gas below tended to create a drawing action. The propane light was not capable of creating sufficient carbon monoxide to cause the tragedy. Motor exhaust carries a high incidence of the deadly fumes. An exhaust pipe carrying the gases to a point beyond the perimeter of the camper would have prevented the accident.

Much of plaintiffs’ case was of necessity based on the conclusions and opinions of expert witnesses. So, top, were GMC’s defenses. In fact, GMC’s argument that plaintiffs made no case at all is based on counter evidence that this was the only incident of its kind although thousands of trucks with similar short tail exhausts had been marketed by it and other manufacturers; that the results of its comprehensive post-accident tests showed .conclusively that under no version of the meteorologie conditions and other existent circumstances could sufficient exhaust carbon monoxide enter the camper to cause death. GMC’s evidence was certainly relevant to negative defective design and causation but, at this point, is simply a renewal of a jury argument. GMC is liable for the first accident as well as any other if caused by faulty design. So, too, the test results of GMC could be rejected by the jury by simply refusing an artificial facsimile in favor of an admitted fact! Massive amounts of carbon monoxide did enter the camper and did kill the decedents. We conclude that plaintiffs’ evidence was clearly sufficient to support defective design and causation as a jury issue and equally sufficient to premise liability under breach of warranty and the doctrine of strict liability.

Trial Errors, Evidence and Instructions

Prominent among GMC’s claim of trial error is the repeated contention that plaintiffs’ technical witnesses were not properly qualified to express opinions pertinent to the question of defect in the design of the truck’s exhaust system. Thus, GMC argues that neither Professor Crawford nor Professor Carley was an expert in the field of exhaust system design, notwithstanding Professor Crawford was a mechanical engineer and past chairman of the Department of Engineering Design at the University of Colorado, and notwithstanding Professor Carley was a chemical engineer and a teacher of both chemical engineering and engineering design at the University of Colorado. In its ruling, the trial court noted specifically that

where an expert has the education or background to permit him to analyze a given set of circumstances, he can through reading, calculations, and reasoning process from known scientific principles make himself very much expert in the particular product even though he has not had actual practical experience in its manufacture.

Significantly, we believe this rationale for the trial court’s ruling is consistent with Rule 702 of the proposed Rules of Evidence for the United States Courts and Magistrates. That rule and the committee’s note thereto indicate clearly that one may qualify as an expert by “knowledge, skill, experience, training, or education” and that the “expert” as such should not be required to satisfy an overly narrow test of his own qualifications. Indeed, the trial court went even further in the appellees’ behalf, holding that their experts satisfied even a traditional, more restrictive test of expert’s qualifications. See Phelps Dodge Corp. v. Atchison, T. & S. F. Ry., 10 Cir., 400 F.2d 20, 22-23; Jones v. United States, 10 Cir., 387 F.2d 1004, 1008, cert. denied, 392 U.S. 927, 88 S.Ct. 2224, 20 L.Ed.2d 1385, wherein we referred to “the wide discretion accorded the trial court in determining the qualifications of a witness to testify as an expert . . . .” We perceive no reversible error in the rulings made by the trial court in respect of the introduction of the testimony given by appellees’ experts. And this conclusion would remain valid although GMC’s experts may hold more experience and training in the specifics of the limited field of expertise considered. Other contentions of GMC concerning the admission of testimony need not be specifically discussed as they bear a negligible impact upon the totality of the evidence.

GMC’s attack upon the trial court’s instructions has many facets, most of which admit the instructions to be properly applicable as to subject matter but which nonetheless criticize them as incomplete and lacking in clarity. In a complex case such as this we have yet to discover an instance where hindsight might not suggest some improvement in the most difficult field of jury instructions. Our review here, however, convinces us that the court’s instructions were, with but one exception, clearly correct and fair and that they allowed the jury to perform its function with complete understanding of its decisional duties. The exception we note pertains to the instruction covering GMC’s duty to warn of the danger of its exhaust system.

GMC contends that the trial court erred when it instructed the jury on GMG’s duty to warn because there was no evidence that GMC knew of any danger or that GMC could have been expected to foresee any danger. That instruction would have allowed the jury to find that GMC was obliged to warn— and, in turn, that GMC had breached that duty — if “in the exercise of reasonable care [GMC] should have known that the use of the product might be harmful or injurious and such danger would not be obvious to the ultimate user.” We believe that the instruction correctly stated the law. See Howard v. Avon Products, 155 Colo. 444, 395 P.2d 1007, 1011 — 1012 (en banc); Restatement (Second) of Torts § 402A, comment j at 353 (1965). A correct statement of the law must, however, also find support in the evidence in the given case. We consider the plaintiffs’ evidence on this aspect of the case to be scant but reaching minimal adequacy. By encouraging the modification of the pickup to that of a camper GMC knew or should have known that the vehicle would or might be used under an unlimited variance of weather conditions, terrain conditions, time conditions and other considerations and combinations thereof. So, too, there is some evidence that a chief design engineer for GMC called attention to an exhaust problem. Although we might well hesitate to affirm the judgments if duty to warn were the single theory of liability we consider plaintiffs’ other theories of recovery, none of which depend on jury conclusions regarding duty to warn, to overwhelm any potential error in this regard.

Reduction of Van Lewen’s Judgment

Finally, GMC contends that the trial court erred in denying GMC’s motion to reduce the judgment in favor of the plaintiff Van Lewen in order to reflect a settlement previously made by her with Nu-Wa Campers, Inc., the manufacturer of the camper unit itself. In consideration of that settlement, Van Lewen’s claim for relief against Nu-Wa Campers, Inc. was dismissed without prejudice. The trial court based its ruling on Cox v. Pearl Investment Co., 168 Colo. 67, 450 P.2d 60 (en banc). In Cox, the Colorado Supreme Court held that, where a tort victim covenanted not to sue one joint tortfeasor, and where the document signed by the victim evidenced the intention of the parties to the covenant that the other joint tortfeasor not be released, the covenant would not constitute a bar to the maintenance of a subsequent action by the victim against that other joint tortfeasor. In so holding, the court mentioned also the necessity that the consideration for the covenant be sufficient and, most significantly, that “the non-settling joint tort-feasor . . . would be entitled to have the amount of [any subsequent] judgment reduced by the amount paid by his co-tort-feasor.” 450 P.2d at 63; see W. Prosser, Law of Torts § 50, at 304—05 (4th ed. 1971).

The rationale of Cox, that the tort victim be prevented from recovering twice for the same wrong, is properly applicable here, and accordingly we hold that GMC is entitled to a reduction in the Van Lewen judgment in the amount of $13,500. The trial court is directed to so reduce the judgment and the case is in all respects affirmed.

      . We leave for later consideration all claims of trial error relating to admissibility of evidence and correctness of instructions.


author: PICKETT, Circuit Judge.

text:
    Ronald David HOPKINS, Appellant, v. Park J. ANDERSON, Warden, Oklahoma State Penitentiary, Appellee. Donald Steven HOPKINS, Appellant, v. Park J. ANDERSON, Warden, Oklahoma State Penitentiary, Appellee.
    Nos. 73-1949, 73-1950.
    United States Court of Appeals, Tenth Circuit.
    Dec. 16, 1974.
    Rehearing Denied Feb. 20, 1975.
    Certiorari Denied April 14, 1975.
    See 95 S.Ct. 1586.
    Byron G. Rogers, Jr., Denver, Colo., for appellants.
    Kay Karen Kennedy, Asst. Atty. Gen., State of Oklahoma (Larry Derryberry, Atty. Gen., State of Oklahoma, with her on the brief), for appellee.
    Before LEWIS, Chief Judge, and PICKETT and McWILLIAMS, Circuit Judges.
   PICKETT, Circuit Judge.

The Hopkins brothers pleaded guilty to an information filed in an Oklahoma state court charging them and others in two counts with the crime of robbery with firearms. Each is now serving two concurrent fifteen-year sentences in the Oklahoma State Penitentiary. They brought these separate habeas corpus actions against the warden of the penitentiary alleging denial of the same constitutional rights prior to the entry of their pleas of guilty. The cases were consolidated and after an evidentiary hearing the district court denied the petitions. The appeals present like questions and also have been consolidated.

Habeas corpus is available to state prisoners only on denial by the state of federal constitutional rights. 28 U.S.C. § 2254; Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); United States ex rel. Little v. Twomey, 477 F.2d 767 (7th Cir.), cert. denied, 414 U.S. 846, 94 S.Ct. 112, 38 L.Ed.2d 94 (1973); Mathis v. People of State of Colorado, 425 F.2d 1165 (10th Cir. 1970). Section 2254 provides that a habeas corpus petition by a state prisoner shall be granted only when it appears that the applicant has exhausted the remedies available to him in the state courts. Furthermore, the statute requires the applicant “to establish by convincing evidence that the factual determination of the State court was erroneous.” The warden admits in his response that the petitioners have exhausted their state remedies, but does not allege that they had full and fair hearings in the state court and records of those hearings are not submitted. Consequently, the United States district court granted an evidentiary hearing. The question presented is whether the record discloses that the pleas of guilty, under all the circumstances of the case, were coerced. Voluntariness of a plea of guilty is a question of fact. Brady v. United States, 404 F.2d 601 (10th Cir. 1968), aff’d, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

The Hopkins brothers were arrested with others by Oklahoma authorities following two armed robberies. They were taken to the county sheriff’s office in McAlester, Oklahoma and questioned concerning their participation in the robberies then under investigation. During the time they were held in jail they were placed in lineups for identification purposes. The petitioners believed that they were identified in the lineups as participants in the robberies, but there was no substantial evidence that this was true. It is not shown that there is any connection between the lineup procedures and the pleas of guilty. Later they were taken before the district attorney where the question of pleas of guilty was discussed. They were advised that the punishment upon conviction of armed robbery was death or imprisonment for a period of not less than five years. At the conclusion of these interviews with the district attorney they were advised that sentences of fifteen years on each count to run concurrently would be recommended on pleas of guilty. Ronald Hopkins testified that when this offer was made he “walked out of the district attorney’s office,” apparently rejecting the offer. Later the two brothers conferred and agreed that it would be to their advantage to waive the appointment of an attorney and enter pleas of guilty. Without advising what their pleas would be they were taken before a state district court for arraignment where they were fully advised as to their constitutional rights, including trial by jury and the appointment of counsel to represent them if they were unable to employ one. Following the entry of pleas of guilty the court advised them that sentencing would be delayed for two days to afford them further time to consider their action. Two days later when they were brought before the court for sentencing, the court asked them if they now had anything additional to say and their response was, “No.” Upon recommendation of the district attorney the court imposed the fifteen-year sentences to run concurrently.

The substance of the petitioners’ testimony at the hearing on their habeas corpus applications was that they knew of their right to a jury trial and to be represented by competent counsel, but that the offer of the district attorney to recommend fifteen-year sentences was conditioned upon a waiver of the right to an attorney and a plea of guilty; further, the offer was on a “take it or leave it” basis and they concluded it was best for them to accept the offer rather than risk the possibility of a greater sentence or imposition of capital punishment. The state produced a transcript of the state court proceedings at the time of the entry of the pleas of guilty and imposition of sentence. Affidavits of the district attorney and his assistant were received in evidence. These affidavits stated that prior to an interview the Hopkins brothers were advised of their constitutional rights, including the right to counsel and jury trial. They were informed of the charges pending against them and the penalties for such crimes. It was stated that at no time were they threatened with life imprisonment or possible execution if they refused to plead guilty after waiving their right'to be represented by counsel, and that no statements or threats were made that would have dissuaded the petitioners from obtaining assistance of counsel. The affidavits state that the Hopkins brothers were told that if pleas of guilty were entered, two fifteen-year sentences to run concurrently would be recommended. The trial court found that petitioners were informed of their constitutional rights and that they knowingly, intelligently and voluntarily waived their right to an • attorney. The court stated that “the evidence clearly demonstrates that the pleas were knowingly, intelligently and voluntarily made.” The court further stated that the pleas were entered as a result of properly conducted plea bargaining whereby the district attorney, on pleas of guilty, offered to recommend sentences of fifteen years for a crime which carried with it a possible death penalty or life imprisonment. As stated in the Brady case, “Often the decision to plead guilty, is heavily influenced by the defendant’s appraisal of the prosecution’s case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted.” 397 U.S. at 756, 90 S.Ct. at 1473. Advising an accused of the consequences of a conviction does not constitute coercion. Beavers v. Anderson, 474 F.2d 1114 (10th Cir. 1973). We are satisfied that, considering all the circumstances, these findings are supported by the record.

It is urged that under Oklahoma law a court shall not accept a plea of guilty from an indigent defendant who is charged with a capital offense without appointment of counsel, therefore the pleas were invalid. Glynn v. State, 442 P.2d 526 (Okl.Cr.1968). In the Oklahoma post conviction proceeding this rule was not applied. In any event, the federal standard for determining the validity of waivers of constitutional rights, including pleas of guilty, is whether such waivers and pleas were voluntarily and intelligently made “with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1969). The possibility of avoiding a death sentence does not necessarily prove that the plea was coerced. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1967); Beavers v. Anderson, supra.

We find no merit in the contention that counsel should have been appointed to represent the petitioners in the habeas corpus proceedings. We have held that habeas corpus is a civil action and that there is no constitutional right to the assistance of counsel in such proceedings in federal court. Plaskett v. Page, 439 F.2d 770 (10th Cir. 1971); Pope v. Turner, 426 F.2d 783 (10th Cir. 1970); Bethea v. Crouse, 417 F.2d 504 (10th Cir. 1969); Flowers v. Oklahoma, 356 F.2d 916 (10th Cir. 1966).

Finding no error, we affirm the judgment.

      . At the time they were charged, 21 O.S.A. § 801 provided:
      Any person or persons who, with the use of any firearms or any other dangerous weapons, attempts to rob or robs any person or persons, or who robs or attempts to rob any place of business, residence or banking institution or any other place inhabited or attended by any person or persons at any time, either day or night, shall be guilty of a felony, and, upon conviction therefor, shall suffer punishment by death; or imprisonment, at hard labor, in the State Penitentiary, for a period of time of not less than five years, at the discretion of the Court, or the jury trying the same.

      . 28 U.S.C. § 2254(d) designates the criteria upon which a federal court may accept the factual determination of the state court in post conviction cases. See Sandoval v. Rodriguez, 461 F.2d 1097 (10th Cir. 1972); Garcia v. Baker, 421 F.2d 671 (10th Cir. 1970); Canales v. Baker, 406 F.2d 685 (10th Cir. 1969); Maes v. Patterson, 401 F.2d 200 (10th Cir. 1968).


author: BARRETT, Circuit Judge.

text:
    Alton HARRIS and United States of America, Plaintiffs-Appellees, v. Angie QUINONES, and Wesco Insurance Company, Defendants-Appellants.
    Nos. 74-1433, 74-1519.
    United States Court of Appeals, Tenth Circuit.
    Argued Oct. 24, 1974.
    Decided Dec. 11, 1974.

      Edward E. Triviz, Las Cruces, N. M. (Victor R. Ortega, U. S. Atty., and Mark C. Meiering, Asst. U. S. Atty., Albuquerque, N. M., on the brief), for plaintiffs-appellees.
    William W. Bivins, Las Cruces, N. M., for defendant-appellant Angie Quinones.
    LeRoi Farlow, Albuquerque, N. M., for defendant-appellant Wesco Ins. Co.
    Before PICKETT, McWILLIAMS and BARRETT, Circuit Judges.
   BARRETT, Circuit Judge.

These consolidated appeals stem from a car-motorcycle accident which occurred June 23, 1972, in Las Cruces, New Mexico. In the first appeal, Angie Quinones, the driver of the car involved in the accident and the defendant below, appeals from an order granting a new trial to the plaintiffs, Harris, the driver of the motorcycle, and the United States, following a jury verdict in her favor at the first trial. The second appeal is brought by Quinones'’ insurance carrier, Wesco Insurance Company (Wesco), from a declaratory judgment holding that at the time of this accident the ear driven by Quinones was covered by an insurance policy issued by Wesco.

We will treat these appeals separately.

I.

Angie Quinones was driving her car in a westerly direction on Mesquite Street in Las Cruces in the late afternoon of June 23, 1972. Having stopped at an intersection Where Mesquite crosses Main Street — a four-lane highway running generally North-South — Miss Quinones proceeded across the intersection in spite of the fact that, because of the glare from the sun, she was unable to clearly observe traffic on Main to which she was obligated to yield. At the far side of the intersection her car collided with a motorcycle driven by plaintiff Harris who was traveling in a southerly direction on Main. . Neither driver, apparently, observed the other until the moment of impact.

At the first trial the jury returned a verdict in favor of Miss Quinones, finding that she was not “guilty” of negligence and that the plaintiff Harris was “guilty” of contributory negligence. On Motion by Harris, the trial judge granted a new trial on the ground that the evidence was insufficient to support the verdict. At the second trial Harris was awarded a judgment of $40,000 and the United States was awarded $3,443.80 for medical services provided to Harris. Miss Quinones contends that the trial court erred in granting a new trial to Harris following the first verdict in her favor. We disagree.

We have consistently recognized that a motion for a new trial made on the ground that the verdict of the jury is against the weight of the evidence normally presents a question of fact and not of law and is addressed to the discretion of the trial court. Community National Life Insurance Company v. Parker' Square Savings and Loan Association, 406 F.2d 603 (10th Cir. 1969); Champion Home Builders v. Shumate, 388 F.2d 806 (10th Cir. 1967); Peter Kiewit Sons Company v. Clayton, 366 F.2d 551 (10th Cir. 1966); Locke v. Atchison, Topeka and Santa Fe Railway Company, 309 F.2d 811 (10th Cir. 1962). On review, we will not reverse a decision granting or refusing to grant a motion for new trial absent an unusual situation, Moore v. Shultz, 491 F.2d 294 (10th Cir. 1974), U.S.App.Pndg., or the showing of a gross abuse of discretion on the part of the district court judge, Holmes v. Wack, 464 F.2d 86 (10th Cir. 1972).

From the jury’s verdict, which contained an unauthorized written message from the foreman, the trial judge was here able to deduce that the jury, in finding the defendant “not guilty”: (1) had ignored the uncontrovertéd evidence that Miss Quinones had proceeded blindly across the intersection; and (2) had relied upon evidence of little or no credible weight in finding Harris “guilty” of contributory negligence. The cases cited by appellant for the rule that failure to keep a lookout may constitute contributory negligence, and that evidence of such a failure may support a verdict, are inapposite. In each of those cases there existed strong evidence, lacking here, that the party charged with failure to keep a lookout had either seen the other vehicle and had failed to react properly, or that he clearly should have been able to see the other party (or vehicle) involved in the accident prior to its occurrence. Here the only evidence tending to show that Harris had failed to keep a proper lookout was conjectural testimony that if Harris had seen the Quinones’ vehicle he may have been able to avoid the accident. No witness testified that under the conditions presented here Harris should have been able to see the Qui-nones’ vehicle. In fact, the only witness who was in the near vicinity of Harris (following at an unspecified distance) did not herself see the Quinones’ vehicle until near the moment of impact and she also observed that Harris appeared to be operating the motorcycle in a careful manner immediately prior to the collision. The mere fact that Harris’ view of. this wide intersection was unobstructed is not strong evidence that he should have been aware of the Quinones vehicle suddenly approaching from the side.

Similarly, the evidence presented that Harris had been drinking and that he was speeding was so slight that it lent little or no weight to the allegation of contributory negligence. Finally, evidence that Harris did or did not take “evasive” action is inconsequential where, as here, no convincing evidence was offered that he had or should'nave had an opportunity to take such action.

Under the totality of these circumstances evidenced by our careful review of the entire record we hold that the trial court did not err in ruling that the verdict returned was against the decided weight of the evidence. The trial court did not commit a gross abuse of discretion.

II.

In this consolidated appeal Wesco appeals from an adverse declaratory judgment holding that on the date of the accident in the above cause there was in existence a valid insurance policy issued by it covering the vehicle driven by Angie Quinones and that Wesco in bad faith had failed to negotiate a settlement with the plaintiffs Harris and the United States and was therefore liable for an excess judgment award.

On January 13, 1972, Wesco issued an insurance policy to Joe Quinones (Angie’s father) covering two vehicles, one of which was involved in this accident and was driven by Angie Quinones, an “omnibus insured” under the policy. The policy period was from January 13, 1972, through January 13, 1973. The premiums for this policy were financed through Southwest Investment Company (S.I.C.), a finance company, in relation to which Wesco stood as a wholly-owned subsidiary. Joe Quinones executed a “premium note” in favor of S.I.C. obligating himself to make monthly payments to S.I.C. Under the provisions of the note, S.I.C., upon default of Qui-nones, could opt to declare the note mature and collect the unpaid premiums. Also, Joe Quinones granted S.I.C. an irrevocable power of attorney^ to cancel his insurance policy with Wesco without notice to him upon default in payment. Joe did in fact miss a payment and was sent notice by S.I.C. that his insurance would be cancelled as of June 19, 1972. The accident here occurred June 23, 1972. On June 26, 1972, Joe went to the Wesco agent and signed a reinstatement form. It is unclear whether Joe was told at that time that the accident of June 23 would not be covered.

Prior to the trial of the personal injury suit between Angie Quinones and Harris, Wesco brought a declaratory judgment action in State court against Joe Quinones to determine if the policy was in force and effect on June 23. Angie Quinones and Harris were not named as parties. Joe did not answer or appear and the court entered a default judgment holding that the policy was not in effect on that date. After the personal injury trial (and the verdict against Miss Quinones), Angie Quinones and Harris brought a declaratory judgment action against Wesco in federal court, again on the issue of whether the policy was in force and effect on the date of the accident. Upon trial to the jury it was found that the policy was in effect on that date, and that Wesco had acted in bad faith in not negotiating for settlement of the case within the policy limits.

On this appeal Wesco contends the trial court erred in: (1) failing to dismiss the cause because of the res judicata effect of the prior state declaratory judgment; (2) instructing the jury as to the plaintiffs’ “theory of the case” and failing to give certain of Wesco’s requested instructions; (3) failing to grant Wesco’s motion to dismiss the claims in excess of the policy limits; and (4) in admitting certain allegedly prejudicial exhibits.

A.

Wesco contends that the prior state declaratory judgment which held that this insurance policy had been can-celled was binding not only upon Joe Quinones (the named insured), but also upon Angie Quinones and Harris, even though they were not named in that action, because they were not “necessary parties” to a decision as to whether the policy was in effect on the date of the accident. It is well established that for the doctrine of res judicata to apply the prior judgment must be one between the same parties or their privies. Glass v. United States Rubber Company, 382 F.2d 378 (10th Cir. 1967); Wight v. Chandler, 264 F.2d 249 (10th Cir. 1959).

Wesco has not established that Angie Quinones was in privy with any party to the prior action. Wesco’s cases cited for the proposition that Angie Quinones was not a “necessary party” for a determination as to whether this policy had been cancelled are not persuasive inasmuch as Wesco had failed to show that under New Mexico law Angie’s rights are solely derivative from the policyholder, and that as an “omnibus insured” she did not have a separate claim against the insurer, i. e., independent of the insurer’s responsibility to the named insured. See, 7 Am.Jur.2d Automobile Insurance § 110. Further, as to the plaintiffs Harris and the United States, Wesco cites no New Mexico cases, nor have we uncovered any through our own research, which hold that they would be bound by a declaratory judgment of this nature in which they were not named as parties. Other jurisdictions have, in fact, ruled that they would not be so bound. See, e. g., Glandon v. Searle, 68 Wash.2d 199, 412 P.2d 116 (1966). The trial court, in its instructions to the jury, was of the opinion that under New Mexico law the plaintiffs Harris and the United States would not be bound by the prior judgment. We have consistently paid great deference to the opinion of the federal district judge sitting in the particular state whose law is in question. Symons v. Mueller Company, 493 F.2d 972 (10th Cir. 1974); Julander v. Ford Motor Company, 488 F.2d 839 (10th Cir. 1973); Wells v. Colorado College, 478 F.2d 158 (10th Cir. 1973); Great-West Life Assurance Company v. Levy, 382 F.2d 357 (10th Cir. 1967).

Finally, we have previously supported the view that in an action for declaratory judgment all persons interested in the declaration are “necessary” parties. Franklin Life Ins. Co. v. Johnson, 157 F.2d 653 (10th Cir. 1946). Without question the rights of both Angie Quinones and Harris (although the latter’s rights are admittedly contingent) were vitally affected by the State declaratory judgment.

In light of the above discussion we hold that the trial court did not err by refusing to dismiss this cause of action, or in instructing the jury that the prior judgment was not binding upon Angie Quinones or the plaintiffs Harris and the United States.

B.

Wesco alleges that the trial court erred in not giving certain of its instructions; and in instructing the jury as to Quinones’ and Harris’ “theory of the cáse” in that such theory was not based upon applicable New Mexico law and/or was not supported by the evidence. For the reason hereinafter set forth, we conclude that Wesco’s reliance upon these alleged errors is not well placed.

Wesco, having raised the defense of cancellation of the policy, had the burden of proving strict compliance with its own cancellation provisions. See, Employers’ Liability Assurance Corporation v. Maes, 235 F.2d 918 (10th Cir. 1956) and cases cited therein. Under condition 16 of Wesco’s policy, cancellation could be effectuated by either the insured or the insurer in the following manner:

16. CANCELATION This policy may be canceled by the insured named in item 1 of the declarations by surrender thereof to the company or any of its authorized agents or by mailing to the company written notice stating when thereafter the cancelation shall be effective. This policy may be canceled by the company [“company” is defined on page one of the policy to mean Wesco Insurance Company] by mailing to the insured named in item 1 of the declarations at the address shown in this policy written notice stating when not less than ten days thereafter such cancelation shall be effective. (Emphasis added).

When Joe Quinones executed the “Auto and/or Fire and Casualty Insurance Premium Note” in favor of S.I.C. he granted S.I.C. the following power:

The customer hereby grants permission, authority and irrevocable power of attorney to lender or any person selected by it to cancel any and all policies of insurance above described without notice of any kind whatsoever to undersigned upon default in any obligation . . . .

Where there is no ambiguity, the court must construe the language of a policy in accordance with the plain, ordinary meaning of its terms. King v. Travelers Insurance Company, 84 N.M. 550, 505 P.2d 1226 (1973). Words in a contract of insurance will be given the meaning a reasonable person in the position of the insured would have understood them to mean, Miller v. Mutual Benefit Health and Accident Association of Omaha, 76 N.M. 455,-415 P.2d 841 (1966), and any ambiguity will be construed liberally in favor of the insured. Davison v. Business Men’s Assurance Company of America, 85 N.M. 796, 518 P.2d 776 (1974); Gray v. International Service Insurance Company, 73 N.M. 158, 386 P.2d 249 (1963); Morris v. Fireman’s Fund Insurance Company, 72 N.M. 395, 384 P.2d 465 (1963).

Neither party has alleged that, these clauses are in any way ambiguous. The plain meaning of these clauses is: (1) Quinones could cancel the policy by surrendering it to Wesco or by giving written notice to Wesco; (2) Wesco could cancel the policy by itself mailing notice to Quinones; and (3) under the premium note, S.I.C. had power to act for Quinones in cancelling this policy with Wesco. The undisputed facts reveal: (1) Joe Quinones did not give notice to Wesco that he was cancelling the policy and he did not surrender the policy; (2) Wesco presented no evidence that it had sent notice of cancellation to Quinones, but rather only that S.I.C. had sent such notice [Wesco’s Exhibit “E” is a cancellation form sent by S.I.C., not Wesco]; and (3) there is no evidence that S.I.C., acting under its power of attorney for Quinones, sent notice to Wesco cancel-ling the policy or that it surrendered the policy as provided under condition 16 of the policy. S.I.C., as agent for Quinones under the power of attorney, could have effectuated a cancellation of this policy only in the same manner as its principal, Joe Quinones, i. e., by following condition 16 of the policy. Furthermore, we deem it relevant to note that on page 22 of its brief filed in this Court, Wesco maintains that there was no evidence that S.I.C. was in any way an agent of Wesco. S.I.C.’s mailing of cancellation notice, therefore, can in no way be credited to Wesco.

From these undisputed facts in the record before us, we hold that, as a matter of law, this policy was not can-celled pursuant to its own terms prior to the date of the accident, June 23, 1972. Since Wesco failed to carry its burden of proving its defense of cancellation in strict compliance with its own cancellation provisions, any error committed by the trial court in its instructions, if such there be, must be treated as harmless error and not as grounds for reversal. Rule 61, Fed.R.Civ.P., 28 U.S.C.A.

Our holding is analogous to that of the Ninth Circuit in Feeley v. Northern Pacific Railway Company, 230 F.2d 316 (9th Cir. 1956). The Court there held that a plaintiff, following an adverse decision below, who had failed to present evidence as to an essential element in his theory of liability, is precluded from claiming harm resulting from the trial court’s instructions to the jury. Here Wesco, with the burden of proving cancellation, stands in that same position. Wesco is, accordingly, precluded by the facts in this record from establishing its defense and cannot here claim that the trial court’s errors in instructing the jury as to Quinones’ and Harris’ “theory of the case” resulted in prejudicial error. Errors which could not have prejudiced the unsuccessful party afford no right to reversal of the judgment. Wonnacott v. Denver & Rio Grande Western R. Co., 187 F.2d 607 (10th Cir. 1951).

C.

Finally, Wesco contends that its refusal to negotiate a settlement with the plaintiffs did not constitute “bad faith” on its part, Lujan v. Gonzales, 84 N.M. 229, 501 P.2d 673 (1972), rendering it liable for an excess judgment award because its refusal was reasonably based upon the following considerations: (1) there was clearly no coverage under the insurance policy; and (2) there was in existence a prior declaratory judgment in state court holding the policy to be void. However, as we have already held, Wesco’s claim of non-coverage is without substantial foundation in this record and its reliance upon the prior state declaratory judgment was clearly erroneous.

We hold that the trial court did not err in denying Wesco’s motion to dismiss the claim for excess judgment. Compare, Foundation Reserve Insurance Company v. Kelly, 388 F.2d 528 (10th Cir. 1968). There was sufficient evidence for the jury to conclude that Wes-co did not “give its interests and the interests of its insured equal consideration.” Lujan v. Gonzales, supra, 501 P.2d at 680.

We have carefully considered each of Wesco’s additional allegations of error. We hold that they are without merit.

We affirm.

      . The claim of the United States here is for medical services provided Harris, a member of the military.

      . Under the section entitled “We find for the defendant” was handwritten: “1). Angie G. Quinones not guilty. 2). Plaintiff guilty coz of neg.”

      . The note also gave S.I.C. the power to declare the note mature upon default.

      . Had Quinones and Harris properly moved for a directed verdict on these grounds it should have been granted, and had the motion been denied by the court and had the case gone to the jury (as it did here anyway), our holding that the error now claimed by Wesco is but harmless error could have been grounded upon clear authority in this circuit.

        See, Wonnacott v. Denver & Rio Grande Western R. Co., 187 F.2d 607 (10th Cir. 1951).


author: BARRETT, Circuit Judge. SETH, Circuit Judge

text:
    Nora GARCIA et al., Plaintiffs-Appellants, v. William GRAY et al., Defendants-Appellees.
    No. 74-1156.
    United States Court of Appeals, Tenth Circuit.
    Argued Oct. 23, 1974.
    Decided Dec. 17, 1974.

      Sanford Jay Rosen, Mexican American Legal Defense and Educational Fund, San Francisco, Cal. (Vilma S. Martinez, Mexican American Legal Defense and Educational Fund, San Francisco, Cal., and Richard C. Bosson, Mexican American Legal Defense and Educational Fund, Albuquerque, N. M., on the brief) for plaintiffs-appellants.
    John P. Eastham, Albuquerque, N. M. (Watson & Watson, Artesia, N. M., on the brief) for defendants-appellees.
    The Mountain States Regional Office, American Civil Liberties Union and The •New Mexico Municipal League, Inc., submitted briefs, amici curiae.
    Before SETH, BARRETT and DOYLE, Circuit Judges.
   BARRETT, Circuit Judge.

This appeal is from the judgment of the United States District Court for the District of New Mexico denying plaintiffs’-appellants’ prayer that Ordinance 347 of the City of Artesia, New Mexico, making it unlawful “for any person to engage in picketing before or about the residence or dwelling of any individual” be declared unconstitutional in violation of the First and Fourteenth Amendments to the United States Constitution and that the defendants-appellees be restrained from enforcing said ordinance. Jurisdiction is predicated upon 28 U.S.C. § 1343(3) and (4). The claim is alleged to arise under 42 U.S.C. § 1983 as an action to redress deprivations under color of State law.

The appellees are the mayor and the eight members of the City Council of the City of Artesia. The genesis of the dispute arose in the refusal by the appellees to recognize a particular union as bargaining agent for some 39 city employees, classified in the record as steelworkers, and the subsequent picketing.

The picketing was initiated when some 39 City of Artesia employees undertook a strike when the Mayor and councilmen refused to recognize a particular union as the bargaining agent for said employees. Thereafter, others joined the strikers, particularly in protest against alleged racial discrimination in employment practices by the City against Chi-canos and want of programs or efforts to upgrade job opportunities or job promotions of Chicanos and to alleviate their low income, poverty status. The protestors — including those sympathetic with the desires of the strikers — testified that their grievances were either not heard by the appellees or, if heard, not seriously considered. The strikers-protestors did picket the City Hall, the City Warehouse and the City Disposal Plant. By reason thereof, the appellees and many of the residents of the City testified that they became fully aware of the complaints of the appellants.

The appellants testified, however, that no response or “hearing out” was ever afforded them by the appellees by reason of these activities and that they concluded that the only way to effectively present their grievances and to induce action was to proceed to the residences of the Artesia city officials where they hoped to be heard and speak with these officials personally. Appellants testified that such picketing, at reasonable hours, would be their only effective and persuasive tool under the circumstances. On the other hand, the Mayor and the Councilmen testified that each and all of the picketers-protestors were invited to attend council meetings where they were always provided a forum to express their views.

The appellants presented evidence that 95% of the City’s work force at the time of the strike were Chicanos and Blacks, but after the strikers were fired the new city employee group consisted of some 60% Whites, 5% Chicanos, and only 3 Blacks. In effect, they argue that this, ipso facto, evidences racial discrimination. The appellees denied that any racial discrimination was practiced at any time. The merits of this dispute were not at issue before the trial court and are not at issue on this appeal. They are recited simply to demonstrate that the differences involved both a labor dispute in terms of union recognition, together with a variety of discriminatory complaints.

When the strikers-protestors determined to picket the residences of appel-lees, Mayor Thompson testified that on one such occasion some 300 “picketers” appeared outside of his home, on the sidewalk and lawn, with signs and noisy chants of “Down with the Mayor” which endured for about one and one-half hours. He said that it was very disturbing, upsetting, and worrisome to him, his wife and his neighbors. He testified concerning one other protest in front of his residence which involved a large number of cars, some parked bumper to bumper next to the curb of his residence and others racing their motors with sliding wheels, coupled with many honking horns and noisy car occupants. He said this demonstration was upsetting to him, his wife and his neighbors. He testified that his wife’s health became very “bad” as a result of the picketing and that she was “under” medication for some time.

Similar residential “picketing” occurred at the residence of Councilman Floyd Economides which, on one such occasion, involved a picket sign which he testified read “Creep, remember you have a wife and kids.” He testified that the demonstration was very disturbing, disruptive and noisy for him, his wife, children and neighbors.

Councilman Price testified that during the picketing of his residence he, his wife and three children, ages 13, 10 and 6 were disturbed in their privacy and that the same disruption applied to his neighbors. Similar evidence was presented by other appellees. The general nature of their testimony and that of many of their neighbors was that the residential picketing created disturbance, noise and an aura of harassment and fear.

Without exception, each of the appel-lees and their neighbors testified that they were fully aware of the complaints of the appellants long before the residential “picketing” was undertaken. (We are well aware that this observation does not serve as justification for the prohibition of the subject residential picketing if, in fact and law, such expression is protected. Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 [1939]).

Challenged Ordinance 347 was enacted following the aforesaid dispute and other matters, of discontent. Section 1 declares, inter alia, that the “good order of the community require[s] that members of the community enjoy in their homes and dwellings a feeling of well-being, tranquility, and privacy” and “that the practice of picketing before or about residences obstructs and interferes with the free use of public sidewalks and public ways of travel” and “ . . . has as its object the harassing of such occupants” and “ . . . constitutes a nuisance . . . ” Section 2 prohibits any picketing before or about the residence or dwelling of any individual. Section 3 invokes a fine or imprisonment or both upon conviction for violation.

The trial court combined, by and with the consent of the parties, the record of the evidentiary hearing held on the motion for preliminary injunction on May 18, 1973, with the evidentiary hearing held on November 30, 1973, relating to the entire controversy as one on the merits in relation to the declaratory and injunctive relief requested.

The trial court filed a Memorandum Opinion concurrent with entry of the judgment on December 28, 1973. The Court found that the plaintiffs’ grievances and desires are “well known by the people they are seeking to inform” via resort to the residential picketing violative of Ordinance 347. The Court further found that such picketing was “distressing” to the defendants; that the right plaintiffs seek to assert, although not pure speech, is a protected First Amendment right, but that such conduct is subject to reasonable regulation; that Ordinance 347 constitutes the City’s proper exercise of its police power in that the ordinance prohibits picketing in an inappropriate location and is not vague and overly broad under the guidelines of Gregory v. City of Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969); that the right of privacy in one’s home sought to be protected by the ordinance is worthy of protection; and that the prohibition of picketing mandated by the ordinance does not deprive the plaintiffs of their constitutional right to picket but deprives them simply of the ability to do so in certain locations.

Appellants claim trial court error in that: (1) the ordinance violated the First Amendment because the record in this case reveals that the ordinance and the governmental interests it presumes to further are not unrelated to the suppression of free expression; (2) the ordinance’s absolute ban on residential picketing violates the First and Fourteenth Amendments because it does not “further an important or substantial governmental interest” either as (a) a proper means to eliminate harassment and abate a nuisance, (b) a justification to eliminate obstruction of an interference with the free use of public sidewalks and public ways of travel, (c) a justification on grounds that other means of expressing freedom of speech exist, or (d) a justified means of protection of feelings of well-being, tranquility and privacy, and (3) the ordinance is overbroad in violation of the Fourteenth Amendment in that alternatives less restrictive of free expression are available to regulate rather than absolutely ban residential picketing.

I.

Trial court findings — including those involving constitutional rights — may not be set aside on appeal unless they are clearly erroneous. Rule 52, Fed.R.Civ.P.; Williams v. Eaton, 468 F.2d 1079 (10th Cir. 1972); Arnold v. United States, 432 F.2d 871 (10th Cir. 1970).

The appellate court must view the evidence in the light most favorable to the prevailing party and must affirm unless the trial court findings and conclusions are clearly erroneous. Maloney-Craw-ford Tank Corporation v. Sauder Tank Company, 465 F.2d 1356 (10th Cir. 1972); Scaramucci v. Dresser Industries, Inc., 427 F.2d 1309 (10th Cir. 1970).

II.

The right of free speech is not absolute at all times and under all circumstances. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). And it is well established that protected speech may be subject to reasonable limitation when important countervailing interests are involved. United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

First Amendment challenges to statutes and regulations on the basis that they are overbroad and vague have not fared well in recent Supreme Court decisions. In Parker, Warden v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (June 19, 1974), the Court rejected the “void for vagueness” challenge under the due process clause of the Fifth Amendment and the “overbroad” challenge under the First Amendment, by upholding a general court-martial conviction under Art. 133 which prescribes punishment of an officer for “conduct unbecoming an officer and a gentleman” and Art. 134 which punishes “all disorders and neglects to the prejudice of good order and discipline in the armed forces.” See also Secretary of Navy v. Avrech, 418 U.S. 676, 94 S.Ct. 3039, 41 L.Ed.2d 1033 (1974), involving conviction on charges of publishing a statement “with design to promote disloyalty and disaffection among the troops”, and Arnett, Director, Office of Economic Opportunity, et al. v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (April 16, 1974), upholding removal or suspension of pay of a civil servant under the federal civil service code “for ‘such cause as will promote the efficiency of the service’.”

III.

First Amendment guarantees of free expression cover a multitude of factual relationships. See Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). These rights must be judged on a balancing basis. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). There are two primary considerations involved in the “balancing”- test determinative as to whether protestors have the right to conduct picketing on or in direct relation to private property. The first consideration is the relationship between the picketing and the area — in this case residential structures occupied by the appellees and their families. The second is whether there exists a reasonably effective alternative means of communications to reach the intended audience. See Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). The rationale in Lloyd is that the initial inquiry should be whether the conduct assertedly protected by the First Amendment is “directly related in its purpose” to the use to which the subject property is being put. We consider it most relevant to observe here that the appellees testified that none of the business of the City of Artesia is conducted at their places of residence.

IV.

Picketing used to communicate ideas is within the protective ambits of the First Amendment. It is nevertheless subject to reasonable regulation and control under the police power processes relating to time, manner and place for the purpose of maintaining public order. Jones v. Opelika, 316 U.S. 584, 62 S.Ct. 1231, 86 L.Ed. 1691 (1942), vacated on reh. on other grounds, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290 (1943); Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed.2d 1117 (1931). The preferred position of free speech and expression does not require legislators to be insensitive to claims by citizens of their entitlement to comfort and convenience. Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949).

The possession and enjoyment of all constitutional guarantees are subject to the police power involving reasonable conditions deemed by the governing authorities essential to insure the safety, health, peace, good order and tranquility of the community. Chicago & Alton Railroad Company v. Tranbarger, 238 U.S. 67, 35 S.Ct. 678, 59 L.Ed. 204 (1915). The scope of the police power is to be measured by the legislative will of the people upon questions of public concern. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937). Thus, in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969), the Supreme Court said that First Amendment guarantees must be “applied in light of the special characteristics of the . . . environment.” In this regard we take special note of the language employed by Mr. Justice Douglas, writing for the majority in Village of Belle Terre et al. v. Borass et al., 416 U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797, 804 (1974):

The police power ... is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion, and clean air make the area a sanctuary for people. (Italics supplied).

We are not here involved in any question relating to ordinances which sweepingly prohibit any person in or upon any public place to picket. Such ordinances have been condemned on their face as unconstitutional invasions of free speech. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Carlson v. California, 310 U.S. 106, 60 S.Ct. 736, 84 L.Ed. 1104 (1940). Rather, we are here dealing with an ordinance prohibiting picketing before or about residences. In the recent case of Rowan v. United States Post Office Department, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970), Mr. Chief Justice Burger stated that the concept that “a man’s home is his castle” into which not even the king may enter, has lost none of its vitality.

The regulation and abatement of nuisances is one of the basic functions of the police power. Municipalities are generally considered as having been given the right to suppress them. 56 Am. Jur.2d, Municipal Corporations, §§ 443— 446, pp. 492-498, and cases cited therein. This includes the regulation or prohibition of certain noises which may affect health, well-being and tranquility. 56 Am.Jur.2d, Municipal Corporations, § 470, pp. 519-520, and cases cited therein.

A municipality may enact ordinances declaring certain acts to constitute nuisances even though the acts violate only private rights and produce damages to but one or a few persons. 58 Am.Jur.2d, Nuisances, § 9, p. 564, et seq., and cases cited therein. Of course, any such restrictions or limitations must be carefully scrutinized and cannot be lightly treated. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

The balancing of competing rights generally has resulted in a determination that the privacy of the individual householder, even that of a public official, is entitled to protection. Gregory v. City of Chicago, supra; Allen-Bradley Local, etc. v. Wisconsin Employment Relations Boards, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (1942); Hall v. Hawaiian Pineapple Co., 72 F.Supp. 533 (D.C.Hawaii, 1947); City of Wauwatosa v. King, 49 Wis.2d 398, 182 N.W.2d 530 (1971); State v. Anonymous, 6 Conn.Cir. 372, 274 A.2d 897 (1971); Keefe v. Organization for a Better Austin, 115 Ill.App.2d 236, 253 N.E.2d 76 (1969), rev’d. on other grounds, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Pipe Machinery Co. v. De More, 76 N.E.2d 725 (Ohio App.1947); Evening Times Printing & Publishing Co. v. American Newspaper Guild, 124 N.J.Eq. 71, 199 A. 598 (1938); State v. Perry, 196 Minn. 481, 265 N.W. 302 (1936). See also 93 A.L.R.2d 1284, Anno. Nonlabor Picketing or Boycott.

In the case at bar, just as in City of Wauwatosa v. King, supra, the subject ordinance forbidding residential picketing does, from the facts contained in the whole of this record, constitute a valid exercise of governmental power intended to insure that members of the Artesia community enjoy in their homes a feeling of well-being, tranquility and privacy.

We affirm.

SETH, Circuit Judge

(concurring):

This action began as a challenge to Ordinance 343 of the City of Artesia which was a ban on residential picketing except in a labor dispute. The trial court enjoined the enforcement of Ordinance 343 by reason of' the exception referred to, and in reliance on Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212. However, before the injunction went into effect, the City enacted Ordinance 347, which contained no exceptions. The plaintiffs amended their complaint to attack the new ordinance. The “picketing” which took place occurred under the prior ordinance (343), and there has been no picketing under No. 347.

Under these circumstances, the appeal is not concerned with any construction or application of particular wording of the ordinance or of definitions. The plaintiffs thus assert that on its face, in its absolute prohibition of residential picketing and in whatever degree of orderliness, it encroaches on First Amendment rights to an unreasonable extent.

Ordinance 347 is as broad a prohibition of residential picketing as could be devised, but the breadth is not to be measured against picketing or residential picketing, but against protected First Amendment rights. In this perspective it does prohibit certain speech-related conduct at a particular place. The nature and extent of the prohibited acts are set against the interests, rights, or privileges sought to be protected by the ordinance. Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487. It would serve no purpose to again describe the importance of the speech aspects of the balancing. In the situation before us, the pleadings frame the issues between the plaintiffs on one side and certain part-time elected public officials on the other. The basic problem relates to the hiring of city employees and it is a public-political problem. In this context it is apparent that several avenues are open for the exercise of the speech-public information rights both geographically and by reason of defendants’ representative capacities as public servants. The homeside, fireside, privacy aspects have been described in Gregory v. Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134, and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510.

It is apparent that whatever restrictions on First Amendment rights which may come about under this ordinance— the requirement that whatever unique communication advantages that may be derived from residential picketing must be foregone — do not outweigh the need for protection of privacy in the home and home neighborhood. This protection is available for public officials as a place where there is only an identity as a private individual, and where their families and neighbors may do the same. See Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131, and Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487.

I agree with the analysis of the balancing made by Judge Barrett and by the trial judge in this respect. I would thus affirm the judgment of the trial court.