author: JAMES M. CARTER, Circuit Judge:

text:
    Edward C. BELL, Petitioner-Appellee, v. Richard D. HONGISTO, Respondent-Appellant.
    No. 72-2797.
    United States Court of Appeals, Ninth Circuit.
    July 26, 1974.
    Rehearing and Rehearing En Banc Denied Sept. 19, 1974.

      Herbert F. Wilkinson, Deputy Atty. Gen. (argued), San Francisco, Cal., for respondent-appellant.
    B. E. Bergesen, III, (argued), Youth Law Center, San Francisco, Cal., for petitioner-appellee.
    Before CHAMBERS, CARTER and WALLACE, Circuit Judges.
   OPINION

JAMES M. CARTER, Circuit Judge:

Richard D. Hongisto, the Sheriff of San Francisco, appeals from the order of the district court granting a writ of habeas corpus to the petitioner Edward Bell. Bell, an attorney, had been summarily convicted of direct contempt of the San Francisco Superior Court and was sentenced to five days in jail and a $500 fine. After exhausting his state remedies he brought this petition.

We are faced with three issues, each of constitutional dimensions: (1) Does § 1222 of the California Code of Civil Procedure, which denied Bell the right to appeal his contempt conviction, thereby violate the equal protection clause of the United States Constitution? (2) Does § 1222, Code Civ.P., which denied Bell the right to bail pending review of his conviction by petition for certiorari or habeas corpus, thereby violate the equal protection clause? (3) Does § 1211 of the California Code of Civil Procedure, which permits a summary punishment of those persons who commit contempt in the immediate presence of the court, violate the due process clause of the United States Constitution under the circumstances of this case ?

The district court answered the first two of these questions affirmatively, and ordered Bell’s release without reaching the question of due process. We reverse. While we express no opinion on the wisdom of § 1222, Code Civ.P., we cannot hold it in violation of the equal protection clause. We are thus confronted with the due process question which the district court avoided; and the record developed below is sufficient to satisfy us that § 1211, Code Civ.P., as applied to the facts in this case, has no constitutional infirmity.

The Facts

On January 27, 1972, at 11:30 a. m., attorney Edward Bell appeared on behalf of three criminal defendants before the Master Criminal Calendar Judge of the San Francisco Superior Court. The Master Criminal Calendar Judge proceeded to assign the case to a trial judge. Bell was told to appear before that trial judge in two hours, that is, at 1:30 p. m. of the same day.

During the noon recess, Bell went to his office and telephoned two other attorneys for advice regarding the assigned trial judge. They informed Bell that the assigned judge was prejudiced in crucial ways.

During the remainder of the noon recess, Bell prepared a motion and affidavit to disqualify the trial judge peremptorily under § 170.6, Code Civ.P. At 12:55 p. m. Bell presented the motion to the Master Criminal Calendar Judge, who denied it on the ground of untimeliness, stating that according to his reading of § 170.6 Code Civ.P., a disqualification motion must be filed at the time a trial judge is assigned. Bell’s motion was therefore one hour and twenty minutes too late.

At 1:30 p. m. of that day, Bell appeared as scheduled and renewed the disqualification motion before the trial judge himself, who also denied the motion as untimely, telling Bell to proceed to trial. Bell declined on the ground that, by going to trial, he might be waiving his right to appeal the denial of the disqualification motion.

The trial judge then announced, “ . . . Mr. Bell, I order you to proceed with the trial of this case forthwith. And, what is your reply to that?” Bell replied, “I refuse to go to trial, your Honor.” Thereupon the trial judge found Bell in direct contempt of court and sentenced him to five days in jail and a $500 fine.

Under California law, Bell had no right to appeal this judgment of contempt, but he did have the right to petition the higher state courts for a writ of habeas corpus or a writ of certiorari. In order to allow Bell time to file such petitions, the trial judge stayed execution of the sentence until 9:30 a. m. of the following day (the 28th of January) and later extended the stay for four additional days (until February 1).

Bell quickly filed two petitions for review, one with the California Court of Appeals and, later, one with the California Supreme Court. Both petitions were denied. Bell went to jail on February 1, 1972. Subsequently, an additional petition in the California Supreme Court was denied on February 2, 1972.

On February 3, Bell filed a petition for a writ of habeas corpus in the federal district court. The district court ordered his release from custody on grounds that § 1222, Code Civ.P., violated the equal protection clause.

The California Statutory Scheme

Sections 1237 and 1466 of the California Penal Code provide that the defendants in “criminal” cases have the right to appeal from a conviction.

Section 1272 of the Penal Code provides that convicted defendants may be released on bail pending appeal.

Section 166 of the penal Code provides that every person guilty of eight specified types of contempt, which are labelled “criminal contempt,” is guilty of a “misdemeanor.”

Section 1209 of the Code Civ. P. Lists eleven types of “contempts of the authority of the court.” Contempt proceedings brought under this section, as distinguished from § 166, Penal Code, are not “criminal” proceedings, as a matter of terminology, although they are criminal in character. Pacific Tel. & Tel. Co. v. Superior Court for Los Angeles County, 265 Cal.App.2d 370, 72 Cal.Rptr. 177 (1968).

Section 1211 of the Code Civ.P. provides that a contempt committed in the immediate view and presence of the court may be punished summarily.

Section 1222 of the Code Civ. P. provides that the judgment of the court in contempt cases is final and conclusive. This section, despite its broad language, does not apply to contemnors labelled “criminal” under the Penal Code, § 166. In re Buckley, 10 Cal.3d 237, 110 Cal.Rptr. 121, 514 P.2d 1201 (1973).

But it is clear that Bell does not belong to that class of contemnors la-belled “criminal” under the Penal Code. Hence § 1222, Code Civ.P., does apply to him.

Section 1222, Code Civ.P., as noted above, has been construed by California courts to bar appeals but to allow petitions for writs of habeas corpus and certiorari. E. g., Heller v. Heller, 230 Cal.App.2d 679, 41 Cal.Rptr. 177 (1964). These remedies limit the inquiry of the reviewing court solely to questions of the inferior court’s jurisdiction. In re Chapman, 141 Cal.App.2d 387, 295 P.2d 573 (1956). The term “jurisdiction” covers a great deal of ground, however, for the questions of whether a petitioner’s alleged acts constituted contempt, and whether the evidence was sufficient to establish those alleged acts, have been held “jurisdictional” inquiries. In re Ciraolo, 70 Cal.2d 389, 74 Cal.Rptr. 865, 450 P.2d 241 (1969). Thus the scope of review by petition is practically as broad as the scope of review by appeal. See Comment, Contempt: Scope of Review of Contempt Orders in California, 37 Calif.L.R. 301 (1949).

Equal Protection

Bell contends that § 1222, Code Civ. P., violates the equal protection clause of the United States Constitution because it precludes an appeal from an order adjudicating a person in contempt of court, and precludes bail pending review by petition, while at the same time § 1237 and § 1466 of the Penal Code allow “criminal” defendants these procedural benefits. (We temper this contention with the observation that persons convicted of contempt under § 166, Penal Code, are indeed permitted to appeal and have bail.)

The California Supreme Court rejected an argument identical to Bell’s in In re Buckley, 10 Cal.3d 237, 110 Cal.Rptr. 121, 514 P.2d 1201 (1973). Since the contention raises a federal question, we are not bound by that state decision and are required to make an independent determination. Yet we must keep in mind that we are dealing with a state statutory scheme and the state case law interpreting and upholding it. Thus, in accordance with our principle of affording state laws a presumption of validity in order to avoid unnecessary federal interference in state affairs, see McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 87 L.Ed. 819 (1943), we pay deference to the views of the California Supreme Court. The discussion that follows is our own analytical journey to the same end, reached more briskly by that Court.

(a) Right to appeal

Respondent contends that Bell’s argument regarding a right to equal treatment with “criminal” defendants is eviscerated by the fact that Bell was not held in “criminal” contempt. We reject the respondent’s contention. It is true that Bell was convicted under §§ 1209 and 1211, Code Civ.P., not under § 166, Penal Code, and hence was not a “criminal” under the statutory terminology. But Bell’s contempt was essentially “criminal” in nature, even if not “criminal” by virtue of § 166, Penal Code, because the purpose of the contempt sanction in this case was punitive rather than compensatory or coercive. See Morelli v. Superior Court of Los Angeles County, 1 Cal.3d 328, 82 Cal.Rptr. 375, 461 P.2d 655 (1969); Gompers v. Buck’s Stove & Range Company, 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Penfield Co. of California v. Securities & Exchange Com’n, 330 U.S. 585, 67 S.Ct. 918, 91 L.Ed. 1117 (1947); In re Nevitt (8 Cir. 1902) 117 F. 448.

Accordingly, we consider the question whether it is constitutionally permissible to deny contemnors suffering essentially criminal sanctions the same right of appeal afforded those defendants actually labelled “criminal.”

In equal protection cases, the burden of justification that must be carried by the state is sometimes heavy and sometimes light, depending on the nature of the classification in question and the nature of the imposition which the state law places upon the encumbered class.

A strict standard of judicial review is invoked whenever the state law operates to the disadvantage of a “suspect class” (examples being a class based on race or alienage) or whenever the state law impairs a “fundamental interest” (such as the right to vote or to travel interstate); when such a law is challenged, it will be held unconstitutional unless the state can show it is necessary to promote a compelling state interest.

On the other hand, if the law in question neither injures a “suspect class” nor impairs a “fundamental interest,” it will be evaluated under the general standard. Under this test, the state law is valid so long as it rationally furthers a legitimate state interest.

In order to choose the correct standard of review in this case, we must ascertain whether or not a fundamental interest is impaired sufficiently to invoke strict scrutiny. (No serious contention can be made that state law here injures a “suspect class.”)

In this inquiry, the leading case cited by Bell is Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), which held that an indigent was entitled to a free trial transcript on appeal. Cf. Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971). But we do not find Griffin or Mayer controlling.

First, Griffin and Mayer, although recognizing the importance of adequate review of a criminal conviction, do not expressly call it a “fundamental interest,” nor is it clear a strict standard of review was applied.

Secondly, assuming the Court in those cases did in fact tacitly find a “fundamental interest” and apply a strict standard of review, the Court did so largely because the classification in question was based on wealth. Classifications based on wealth are “traditionally disfavored.” Harper v. Virginia Bd. of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). But Bell’s class is not indigent.

Since Supreme Court decisions provide no authority for regarding the right. to adequate appellate review as “fundamental,” we look to the Constitution itself for guidance. The lesson of San Antonio School District v. Rodriguez, 411 U.S. 1, 33-34, 93 S.Ct. 1278, 1297, 36 L.Ed.2d 16 (1973) is that “. . . the key to discovering whether [an interest] is ‘fundamental’ . . . lies in assessing whether there is a right to [that interest] explicitly or implicitly guaranteed by the Constitution.” San Antonio School District, supra.

The Constitution, a basic text of criminal procedure, contains numerous provisions to safeguard the criminal defendant. But in all its provisions, we find no implicit, and surely no explicit, guarantee of the right to appeal. As said in Griffin, supra, 351 U.S. at 18, 76 S.Ct. at 590, “It is true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all.”

Furthermore, even if the right to adequate review of a criminal conviction were a “fundamental interest,” we do not believe that this right or interest was significantly impaired in the instant case. The cases speak loosely at times of invoking the standard of strict scrutiny whenever a fundamental interest is “involved.” The facts in those cases make clear, however, that it is actually the significant “impairment” of the fundamental interest, not merely its “involvement” that has led courts to apply the strict standard.

In the instant case, there is probably some degree of detriment imposed on Bell by § 1222, Code Civ.P., but we believe it is slight. We have considered the two ways suggested by Bell in which an appeal is more advantageous than a petition for review: (1) because misde-meanants have more timé to prepare arguments to present to the reviewing court than do contemnors like Bell; and (2) because misdemeanants are assured a hearing before the reviewing court and a full consideration of their case, while contemnors like Bell often have their petitions denied summarily without a hearing.

As to (1), we note that misdemean-ants have a statutory allotment of time in which to prepare appellate arguments, as provided in the California Rules of Court 105 and 182. On the other hand, contemnors under § 1209, Code Civ.P., have no fixed time limits in which to file their petitions for review. While this allows them to take as much time as they please, as a practical matter they are forced to file their petitions within days or even hours if they wish to avoid incarceration. But we doubt whether a longer period would benefit contemnors significantly. Contempt cases generally present fewer and simpler questions for review than ordinary criminal cases. The contemning court will generally stay the execution long enough for the con-temner adequately to prepare the relatively simple petition. Bell, for instance, had the execution of his sentence stayed for five days while he prepared and filed petitions for review.

As to (2), we note that the California Rules of Court seek to guarantee that each misdemeanant will have a thorough consideration given to his case by the reviewing court. Rules 183, 190 and 106. On petitions by contemnors convicted under § 1209, Code Civ.P., no such rules are at hand to guide the judicial process.

We are not persuaded, however, that petitions for review are less adequately considered by the reviewing court than are briefs on appeal. Only if the petition can be disposed of on its face will the petitioner be denied a hearing. The petitioner with a serious claim will thus be on equal footing with a misdemeanor appellant with a serious claim.

Bell points to the fact that his first petition was denied a mere ten minutes after its filing. Yet Bell makes no showing that his petition on its face displayed sufficient merit to warrant longer deliberation. Even if the first petition was too hastily denied, any error would have been cured by consideration of the subsequent petitions. The second petition was denied four hours after its filing. This was time enough to allow for a full perusal of its contents and adequate consideration of its merits.

The mere fact that a decision is speedily forthcoming, therefore, is insufficient to raise a presumption that the reviewing court failed in its duty to .consider a ease thoroughly. To find a dereliction of duty we would require concrete evidence. Bell fails to adduce such evidence.

Therefore, even on the dubious assumption that the right to appeal is a “fundamental interest,” we believe that the interest was not sufficiently impaired to invoke strict judicial scrutiny. We therefore shall judge the California statute under the general standard. Accordingly, § 1222, Code Civ.P., insofar as it denies the right to appeal, must be held valid so long as it rationally furthers a legitimate, articulated state objective.

One objective behind § 1222, Code Civ.P., in the context of punitive sanctions, is to facilitate the preservation of order and administrative regularity. This objective is patently legitimate. We need only inquire, then, whether the California legislature had reason to believe that § 1222, Code Civ.P., would rationally further such goal.

Since contempt, unlike other criminal behavior, is a direct attack on the authority of the court and tends to thwart the processes of justice, the legislature might reasonably deem it desirable to devise special procedures to safeguard the courts. Section 1222, Code Civ.P., arguably provides this safeguard in two respects. First, it encourages the trial court to mete out necessary punishment, for a court might be reluctant to cite a person for contempt if conviction might lead to lengthy appeals which would further delay and disrupt the trial process. Second, it increases the deterrent value of the punishment, for a conclusive, non-appealable judgment of conviction is assuredly a more frightening prospect for the would-be contemnor than a judgment whose sting is mitigated by the delay of time-eating appeals.

We therefore hold that § 1222, Code Civ.P., rationally furthers a legitimate state objective and thus does not violate the equal protection clause.

(b) Right to bail

Section 1222, Code Civ.P., as interpreted by the California Supreme Court, has been held to mean (1) that no con-temnor except one convicted under § 166, P.C., may appeal his conviction, and (2) that no contemnor except one convicted under § 166, P.C., is entitled to bail pending review of his conviction by petition.

Bell lacks standing to argue the unconstitutionality of the denial of bail rights, for although he had no right to bail, he was granted a stay of sentence, during which he petitioned both the California Court of Appeals and the California Supreme Court. The stay was an equivalent of bail.

In Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953), the Supreme Court stated the familiar rule that “a person cannot challenge the constitutionality of a statute unless he shows that he himself is injured by its operation.” (at 255, 73 S.Ct. at 1034). A’corollary of this rule is that, if a statute contains separable provisions, a person may challenge only those provisions which operate to injure him, and he may not challenge those provisions that cause him no harm.

Bell therefore cannot be heard to argue that the rule as to bail, in its application to his case, denied him equal protection of the laws. “ . [O]ne to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.” United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960). This principle cannot be relaxed in the present case, for Bell lacks the type of relationship with other persons which might give him standing to assert their rights, and because persons adversely affected by the bail provision will be able adequately to protect their own rights regardless of the outcome of this litigation. See Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

There is another reason why the question of the right to bail is not before us. This is a habeas corpus proceeding, the ultimate purpose of which is to secure the petitioner’s release from unlawful custody. Bell could raise the bail question only if an improper denial of bail was the cause of his custody at the time of the instant petition. At the time Bell commenced this habeas corpus proceeding, however, the review of his contempt conviction had been completed within the state courts and, therefore, even if he was constitutionally entitled to bail pending state court review, that time had expired when this habeas corpus proceeding began. No relief can be afforded in this habeas corpus proceeding for the allegedly improper denial of bail, for the denial of bail was not the cause of Bell’s custody at the time petition herein was filed.

Due Process

Bell contends it was fundamentally unfair for the trial judge to find him in contempt summarily under § 1211, Code Civ.P. Of his various arguments in support of this contention, the majority are frivolous, but two warrant a short discussion. First, he argues that the trial judge was personally embroiled with him and thus should have been disqualified from adjudging him in contempt. Secondly, he argues that the conviction was so erroneous as a matter of state law that it denied him due process.

When a judge becomes so “personally embroiled” with a lawyer that he is unable to sit impartially in judgment on the contempt charge, due process requires that he must be disqualified. Mayberry v. Pennsylvania, 400 U.S. 455, 465, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). But on the facts of this case, we are far from persuaded that the trial judge was “personally embroiled” with Bell. Bell’s conduct did not vilify the judge. To the contrary, Bell was polite throughout. And the judge’s comments on record do not demonstrate a bias or anger against Bell. Accordingly, we see no constitutional violation in the contemned judge sitting in judgment on the contempt charge.

As for Bell’s argument that the conviction was flagrantly erroneous under state law, thereby denying him due process, we are not persuaded. Bell’s conviction was reviewed three times in the higher California courts. Each time his conviction was allowed to stand. We infer that the higher California courts found the conviction correct under the state law. The contention that the conviction was flagrantly erroneous is therefore without merit.

Conclusion

We hold that § 1222, Code Civ.P., does not violate the equal protection clause of the United States Constitution. We hold also that § 1211, Code Civ.P., was not applied in violation of the due process clause of the Constitution. Accordingly, we reverse and remand with directions to deny the petition for ha-beas corpus,

Reversed and remanded with directions.

      . § 170.6, California Code of Civil Procedure.
      “(1) No judge or court commissioner of any superior, municipal or justice court of tlie State of California shall try any civil or criminal action or special proceeding of any kind or character nor hear any matter therein which involves a contested issue of law or fact when it shall be established as hereinafter provided that such judge or court commissioner is prejudiced against any party or attorney or the interest of any party or attorney appearing in such action or proceeding.
      (2) Any party to or any attorney appearing in any such action or proceeding may establish such prejudice by an oral or written motion without notice supported by affidavit or declaration under penalty of perjury or an oral statement under oath that the judge or court commissioner before whom such action or proceeding is pending or to whom it is assigned is prejudiced against any such party or attorney or the interest of such party or attorney so that such party or attorney cannot or believes that he cannot have a fair and impartial trial or hearing before such judge or court commissioner. . . .
      (3) If such motion is duly presented and such affidavit or declaration under penalty of perjury is duly filed or such oral statement under oath is duly made, thereupon and without any further act or proof, the judge supervising the master calendar, if any, shall assign some other judge or court commissioner to try the cause or hear the matter. . . . ”

      . The full exchange between court and counsel reads as follows :
      “THE COURT: Well, as previously indicated, we are ready to go to trial and as I stated to Mr. Bell off the record, I do not intend to overrule Judge Calcagno, and I am ready to proceed with the case.
      “So, therefore, to be specific at this time, Mr. Bell, I order you to proceed with the trial of this case forthwith. And, what is your reply to that?
      “MR. BELL: My reply to that, your Honor, is that I feel that if I proceed to trial at this time I will waive my right, rny clients’ right to peremptorily challenge his Honor and therefore in reference to my professional conduct as a member of the Bar I cannot proceed.
      “THE COURT: Well, you refuse to go to trial?
      “MR. BELL: I refuse to go to trial, your Honor.
      “THE COURT: All right. Is there anything else that you have to present on the record at this time before I make a finding?
      “MR. BELL: Can I get one telephone call?
      “THE COURT: Pardon me?
      “MR. BELL: No, there is nothing else.
      “THE COURT: All right. The Court will find you in contempt of court in disobeying a direct order to proceed with the trial . . . .”

      . § 1237, California Penal Code.
      “An appeal may be taken by the defendant :
      1. From a final judgment of conviction except as provided in Section 1237.5.
      2. From any order made after judgment, affecting the substantial rights of the party.”

      . § 1466, California Penal Code.
      “An appeal may be taken [by the defendant] from a judgment or order of an inferior court, in a criminal case, to the superior court of the county in which such inferior court is located, in the following cases. . . .
      (a) From a final judgment of conviction.
      (b) From any order made after judgment affecting his substantial rights.”

      . § 1272, California Penal Code.
      “When admitted to Bail after conviction and upon appeal. After conviction of an offense not punishable with death, a defendant who lias appealed may be admitted to bail:
      1. As a matter of right, when the appeal is from a judgment imposing a fine only.
      2. As a matter of right, when the appeal is from a judgment imposing imprisonment in cases of misdemeanor.
      3. As a matter of discretion in all other cases.”

      . § 166, California Penal Code.
      “Criminal Contempts. Every person guilty of any contempt of Court, of either of the following kinds, is guilty of a misdemeanor :
      1. Disorderly, contemptuous, or insolent behavior committed during the sitting of any Court of justice, in immediate view and presence of the Court, and directly tending to interrupt its proceedings or to impair the respect due to its authority;
      2. Behavior of the like character committed in the presence of any referee, while actually engaged in any trial or hearing, pursuant to the order of any Court, or in the presence of any jury while actually sitting for the trial of a cause, or upon any inquest or other proceedings authorized by law;
      3. Any breach of the peace, noise, or other disturbance directly tending to interrupt the proceedings of any Court;

        4. Willful disobedience of any process or order lawfully issued by any Court;
      5. Resistance willfully offered by any person to the lawful order or process of any Court;
      6. The contumacious and unlawful refusal of any person to be sworn as a witness ; or, when so sworn, the like refusal to answer any material question ;
      7. The publication of a false or grossly inaccurate report of the proceedings of any Court;
      8. Presenting to any Court having power to pass sentence upon any prisoner under conviction, or to any member of such Court, any affidavit or testimony or representation of any kind, verbal or written, in aggravation or mitigation of the punishment to be imposed upon such prisoner, except as provided in this Code.”

      . § 1209, California Civil Procedure Code.
      “The following acts or omissions in respect to a court of justice or proceedings therein, are contempts of the authority of the court:
      1. Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial piroceed-iug;
      2. A breacli of the peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial or other judicial proceedings;
      3. Misbehavior in office, or other wilful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner, or other person appointed or elected to perform a judicial or ministerial service ;
      4. Abuse of the process or proceedings of the court, or falsely pretending to act tinder authority of an order or process of the court;
      5. Disobedience of any lawful judgment, order, or process of the court;
      6. Rescuing any person or property in the custody of an officer by virtue of an order or process of such court;
      7. Unlawfully detaining a witness, or party to an action while going to, remaining at, or returning from the court where the action is on the calendar for trial;
      8. Any other unlawful interference with tire process or proceedings of a court;
      9. Disobedience of a subpena [sic] duly served, or refusing to be sworn or answer as a witness;
      10. When summoned as a juror in a court, neglecting to attend or serve as such, or improperly conversing with a party to an action, to be tried at such court, or with any other person, in relation to the merits of such action, or receiving a communication from a party or other person in respect to it, without immediately disclosing the same to the court;
      11. Disobedience by an inferior tribunal, magistrate, or officer, of the lawful judgment, order, or process of a superior court, or proceeding in an action or special proceeding contrary to law, after such action or special proceeding is removed from the jurisdiction of such inferior tribunal, magistrate, or officer.
      No speech or publication reflecting upon or concerning any court or any officer thereof shall be treated or punished as a contempt of such court unless made in the immediate presence of such court while in session and in such a manner as to actually interfere with its proceedings.”

      . § 1211, California Civil Procedure Code.
      “When a contempt is committed in the immediate view and presence of the court, or of the judge at chambers, it may be punished summarily; for which an order-must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed.
      When the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers.”

      . § 1222, California Civil Procedure Code.
      “The judgment and orders of the court or judge, made in cases of contempt, are final and conclusive.”

      . The state court did not specify under what statute Bell was convicted, but an examination of the case shows that it could not have been § 166, P.C. A “ ‘violation of section 166 of the Penal Code is a misdemeanor and as such it is to be prosecuted in the same manner as other misdemeanors’ rather than under the Code of Civil Procedure for summary contempts.” In re McKinney, 70 Cal.2d 8, 14, 73 Cal.Rptr. 580, 584, 447 P.2d 972, 974 (1968). “ [T] lie superior court [has] no jurisdiction to hear and convict the petitioner of the misdemeanor of contempt of court under section 166 of the Penal Code.” McKinney, supra, at 13, 73 Cal.Rptr. at 583, 447 P.2d, at 975.
      Since the superior court punished Bell summarily, and the California Court of Appeals and the California Supreme Court found no jurisdictional error, the judgment of contempt was necessarily not under § 166, P.C.

      . San Antonio School District v. Rodriguez, 411 U.S. 1, 16-17, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) and citations therein.

      . Id.

      . A statute does not “rationally” further certain goals merely because it logically tends to promote them. A legislature does not act “rationally” when it acts in logical furtherance of lesser goals at the gross expense of more vital goals.
      Thus, to determine whether a statute is rational, the court must consider the statute’s logical tendency to promote its avowed goals against its tendency to impair other, more important goals. This does not mean we shall oversee a legislature in its policy decisions, or try to impose our will in choosing among competing values. That would exceed our province. But when a legislature’s choice is manifestly contrary to certain basic values inherent in a just society, we must hold that choice to be irrational.
      In the instant case, we see nothing in the statute to indicate that certain values basic to a just society are being sacrificed irrationally for the sake of inferior values. Hence in this case we should hold the statute “rational” so long as it tends logically to further its purposed objectives.

      . On June 26, 1974, the Supreme Court decided Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897. There the judge, following the trial, proceeded to hold the petitioner in summary contempt. The Court held in part that because of the acrimony of the confrontation between the trial judge and the contemnor, another judge should have tried the contempt matter.
      On July 8, 1974, in Grossman v. Striepeke (9 Cir., July 13, 1973, No. 72-2526) unpublished, the Supreme Court vacated the judgment and remanded for reconsideration in view of Taylor v. Hayes, supra. (42 U.S.L.W. 3710). As in Hayes, supra, the judge, following the trial, held Grossman in contempt.
      The factual situations in both Hayes and Grossman were vastly different from the factual situation in the case at bar. In Hayes and Grossman the exchanges between the contemnor and the court were acrimonious. In each the contempt was imposed following trial.
      In the case at bar, the contempt occurred when the trial was about to start. There was no acrimonious exchange between the court and contemnor. The judge simply ordered the attorney to proceed with the trial and inquired, “What is your reply to that?” Bell responded, “I refuse to go to trial, your Honor.” See footnote [la] for the full exchange between court and counsel.
      In Hayes, the Court stated 418 U.S. at 497, 94 S.Ct. at 2702:
      “We are not concerned here with the trial judge’s power, for the purpose of maintaining order in the courtroom, to punish summarily and without notice or hearing contemptuous conduct committed in his presence and observed by him. Ex parte Terry, 128 U.S. 289 [9 S.Ct. 77, 32 L.Ed. 405] (1888). The usual justification of necessity, see Offutt v. United States, 348 U.S. 11, 14 [75 S.Ct. 11, 99 L.Ed. 11] (1954), is not nearly so cogent when final adjudication and sentence are postponed until after trial.”
      By >way of comparison with the procedure followed in Hayes the Court notes an important event which ordinarily occurs in a summary contempt proceeding such as we have before us:
      “Even where summary punishment for contempt is imposed during trial, ‘the con-temnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution.’ Groppi v. Leslie, supra, 404 U.S., at 504 [92 S.Ct. 582, at 587] (and cases cited therein).” 418 U.S. at 498, 94 S.Ct. at 2703 (footnote omitted).
      Added enlightenment is found in Groppi at the page cited by the Court as authority for its statement:
      “Where a court acts immediately to punish for contemptuous conduct committed under its eye, the contemnor is present, of course. There is then no question of identity, nor is hearing in a formal sense necessary because the judge has personally seen the offense and is acting on the basis of his own observations. Moreover, in such a situation, the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution.” Groppi v. Leslie, 404 U.S. 496, 504, 92 S.Ct. 582, 587, 30 L.Ed.2d 632 (1972) (footnote omitted).
      Here the record reflects that Bell had an adequate opportunity to speak in his own behalf.
      In a companion case decided on the same day as Hayes, Codispoti v. State of Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 2692, 41 L.Ed.2d 912, the Court said:
      “There are recurring situations where the trial judge, to maintain order in the courtroom and the integrity of the trial process in the face of an ‘actual obstruction of justice,’ In re McConnell, 370 U.S. 230, 236 [82 S.Ct. 1288, 1292, 8 L.Ed.2d 434] (1962) ; see also In re Little, 404 U.S. 553, 555 [92 S.Ct. 659, 660, 30 L.Ed.2d 708] (1972), convicts and sentences the accused or the attorneys for either side for various acts of contempt as they occur. Undoubtedly, where the necessity of circumstances warrants, a contemnor may be summarily tried for an act of contempt during trial and punished by a term of no more than six months. . . .”
      If the contempt in the case at bar, occurring at the commencement of a trial, could not be punished summarily by the judge before whom the contempt occurred, then no such contempt could ever be punished by the judge before whom it occurred.


source: Caselaw Access Project

license: Public Domain

text:
    RESEARCH CORPORATION, Plaintiff-Appellant, v. NASCO INDUSTRIES, INC., Defendant-Appellee.
    No. 73-1229.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 24, 1974.
    Decided June 21, 1974.
    Certiorari Denied Dec. 23, 1974.
    See 95 S.Ct. 689.

      Robert L. Harmon and Clyde F. Wil-lian, Chicago, 111., for plaintiff-appellant.
    William A. Braddock and Robert W. Gutenkauf, Minneapolis, Minn., for defendant-appellee.
    Before KILEY, Senior Circuit Judge, CUMMINGS, Circuit Judge, and HOFFMAN, Senior District Judge.

       Senior District Judge Julius J. Hoffman of tlie Northern District of Illinois is sitting by designation.

   JULIUS J. HOFFMAN, Senior District Judge.

The plaintiff, assignee of United States Patent No. 3,362,381, has appealed from summary judgment entered against it in a suit for infringement. We agree with the District Court that the patent is invalid, and affirm.

The patent in suit, issued to Dr. Roy Farrell on January 9, 1968, is entitled “Cryogenic Branding of Animals”, and describes a method of branding by freezing the skin of the animal. The first and principal claim asserts invention of:

“1. A method of permanently branding living domesticated animals which comprises applying in a predetermined configuration representing insignia to a selected portion .of the living animal, said selected portion having normal hair length and normal skin, a super-cooled material for a sufficient time to freeze such selected portion and permanently alter the appearance thereof.”

The specifications and examples state that the application of a supercooled material, such as dry ice or a metal instrument chilled with dry ice and alcohol or in liquid nitrogen, held in contact with the animal’s skin, will cause a temporary loss of hair, followed by a regrowth of white hair in the area frozen, or by a permanent loss of hair if the application of cold is carried to the point of destruction of the hair follicles. The regrowth of white hair is particularly effective for marking animals with dark hair. Examples to illustrate the claimed invention recount the marking of two dogs, a cat, and a cow.

The prior art references noted on the file wrapper include an article by Dr. A. Cecil Taylor published in the Journal of Experimental Zoology, Vol. 110, p. 77 (1949), entitled “Survival of Rat Skin and Changes in Hair Pigmentation Following Freezing”. The article describes in detail a series of experiments with laboratory rats. Freezing the skin of the animals with dry ice or with a metal instrument supercooled with dry ice and alcohol was found to produce a permanent regrowth of white hair, on the skin area frozen, or, in case of lethal freezing, to leave the affected area bald. The proffered scientific explanation for the phenomena is that the pigment-producing cells of the hair bud, carrying more moisture than the cells which control hair growth but not color, are more susceptible to the formation of destructive ice crystals. Freezing to a limited degree thus has a differential effect, destroying the color-producing cells but not the hair itself, with the result that the hair resumes normal growth but without color, that is, white.

Taylor thus discloses a method for turning the hair of living animals white, in defined-and limited areas where the skin is frozen by contact with a supercooled material. This article, published some fifteen years before the plaintiff’s patent was applied for, raises the defense of anticipation, denying patent-ability if “the invention was described in a printed publication more than one year prior to the date of the application for patent. . . . ” 35 U.S.C. § 102(b). On this ground, the District Court concluded that the patent was invalid.

The plaintiff contends, however, that the Taylor article does not disclose the use of this method for the purpose of branding. Dr. Taylor was concerned with discovering the biological principles at work, and not with the commercial use of his method. His article does not consider the application of his research as a means of marking animals for identification, nor for esthetic purposes. Nonetheless, his writings teach that freezing by contact with a chilled instrument can be used to produce a mark consisting of a growth of white hair in the shape of the applicator.

While it is clear that a process may be patentable even though it is the “new use of a known process” (35 U.S.C. § 100(b)), it is not enough merely to find the latent qualities in an old discovery and adapt it to a useful end, even if others had failed to detect it. General Electric Co. v. Jewel Co., 326 U.S. 242, 249, 66 S.Ct. 81, 90 L.Ed. 43 (1946). Without more, “‘the application of an old process to a new and analogous purpose does not involve invention, even if the new result had not before been contemplated.’ ” 326 U.S., at 247, 66 S.Ct. at 83; General Radio Co. v. Superior Electric Co., 321 F.2d 857, 862 (3 Cir. 1963), cert. denied 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 695 (1964). “That those who preceded the patentees failed to perceive all the uses to which [their disclosure] was accommodable does not minimize the effect of their disclosures or enhance the claim to patent-ability.” Gould-National Batteries, Inc. v. Gulton Industries, Inc., 361 F.2d 912, 914 (3 Cir. 1966).

Whether a different use for a known process is merely analogous and cognate, and thus not “new”, is a question which merges in the decisional process with the question of obviousness. “The application of an old principle to a new use will not gain a patent unless the new use would not have been obvious at that time to a person of ordinary skill in the subject matter art.” Skirow v. Roberts Colonial House, Inc., 361 F.2d 388, 390 (7 Cir. 1966). It is not enough that the plaintiff “has merely adapted an old method to a new use by modifications obvious to one skilled in the art, which does not constitute a patentable invention.” Scott Paper Co. v. Fort Howard Paper Co., 432 F.2d 1198, 1203 (7 Cir. 1970). See also Grinnell Corp. v. Virginia Electric & Power Co., 401 F.2d 451, 453 (4 Cir. 1968); Preuss v. General Electric Co., 392 F.2d 29 (2 Cir. 1968).

The fact that the Taylor article does not directly describe the end of branding, to qualify as full and absolute anticipation, does not suffice to validate the plaintiff’s patent. Under Section 103, a patent is invalid even “though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” 35 U.S.C. § 103. We agree with the District Court that the use of Taylor’s method for purposes of marking an animal for identification would have been obvious from his published article.

The plaintiff argues, however, that a decision of the question of obviousness cannot be made upon a motion for summary judgment. A patent, duly issued by the Patent Office, enjoys a presumption of validity, and that presumption is reinforced when the prior art was cited and considered by the Patent Examiner. See Schnell v. Allbright-Nell Co., 348 F.2d 444 (7 Cir. 1965), cert. denied 383 U.S. 934, 86 S.Ct. 1062, 15 L.Ed.2d 851 (1966). But the presumption is not factual, requiring the introduction of evidence in every case to overcome it. The “ultimate question of patent validity is one of law . . . ” Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 694, 15 L.Ed.2d 545 (1965). The legal question of obviousness “lends itself to several factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained ; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined.” 383 U.S., at 17, 86 S.Ct., at 694.

Once these factual inquiries have been made, the question is a pure issue of law. As stated in Erie Technological Products, Inc. v. Die Craft Metal Products, Inc., 461 F.2d 5, 9 (7 Cir. 1972):

“Of course the patent office must have decided that the subject matter would not have been obvious, and issuance of the patent creates a presumption in its favor. We are to be on guard against deciding that the subject matter of any patent would have been obvious because it has become obvious by hindsight. Although we should, and do, carefully consider the conclusion reached by the district court, the ultimate issue of obviousness under 35 U.S.C. § 103, after it has been refined by performing the steps required by Graham v. John Deere Co. is one of law.”

There is nothing in Rule 56 to forbid the use of summary judgment procedures to determine whether a genuine issue of fact exists, concerning the factual foundation for determination of the ultimate issue of law: obviousness. Although care must be exercised to assure that controverted fact issues are not ignored, see Tee-Pak, Inc. v. St. Regis Paper Co., 491 F.2d 1193 (6 Cir. 1974), “ . . . a suit concerning the validity of a patent over the prior art is not immune from disposition on motion for summary judgment even though, in addition to prior art patents, deposition testimony of the applicant and affidavits are involved, if no genuine issue of material fact is present.” A R Inc., v. Electro-Voice, Inc., 311 F.2d 508, 511 (7 Cir. 1962). “Further, it is well settled that, in a proper case, the validity of a patent may be determined by use of summary judgment.” Technograph Printed Circuits, Ltd. v. Methode Electronics, Inc., 356 F.2d 442, 446 (7 Cir. 1966), cert. denied 384 U.S. 950, 86 S.Ct. 1570, 16 L.Ed.2d 547 (1966).

Here there was no factual dispute concerning the state of the prior art, as recorded in the Taylor article. The differences between the method there disclosed and the claimed invention are plainly discernible from the documents, and involve principally the shape of the area of skin upon which the supercooled material is applied to turn the hair white. The plaintiff improves upon the Taylor method only by altering the hair color in a predetermined configuration, rather than in the fortuitous shape of the supercooled material applied for purposes of research rather than identification. Under such circumstances, the District Judge correctly concluded that no genuine issue of fact remained. A full trial, for the sole purpose of hearing expert testimony on the level of ordinary skill in the art, could not have aided the court in resolving the legal question of obviousness, and the court could properly rule on that issue “without the taking of testimony from experts in the pertinent area of knowledge.” Monaplastics, Inc. v. Caldor, Inc., 378 F.2d 20, 21 (2 Cir. 1967); Trico Products Corp. v. Roberk Company, 490 F.2d 1280, 1281-1282 (2 Cir. 1973). “Rule 56 applies to patent cases and is used in those instances where the structure and mode of operation of the accused device may be readily comprehended by the court and compared with the invention described and claimed in the patent without need of technical explanation by expert witnesses.” Technograph Printed Circuits, Ltd. v. Methode Electronics, Inc., 356 F.2d 442, 447 (7 Cir. 1966), cert. denied 384 U.S. 950, 86 S.Ct. 1570, 16 L.Ed.2d 547 (1966).

In opposition to the motion, the plaintiff presented a declaration prepared in support of the plaintiff’s application for a British patent, signed by Dr. Taylor, stating that it did not occur to him, from the work described in his article, that his methods could be employed for branding, and stating his belief that such a use would not have been obvious. The District Court concluded that this evidence raised no genuine issue of fact, and could not salvage the patent. The Supreme Court reached a similar conclusion in Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57, 90 S.Ct. 305, 24 L.Ed.2d 258 (1969), where the Court held the patent invalid as a matter of law despite the evidence of two expert witnesses that they had not believed the claimed invention would work. The plaintiff also offered affidavits tending to show a need for an improved method of branding, to eliminate the disadvantages of hot branding; the failure to find such a means, in a British contest wth 3,000 entries; the commercial success of freeze branding, as revealed by numerous inquiries and licenses; and skepticism, as evidenced by resolutions adopted by two cattlemen’s associations, recording their doubts about the permanence, economy, and practicality of the method. These factors are useful makeweights in doubtful cases, and may tip the scales when otherwise evenly balanced. They serve to induce a becoming intellectual modesty on the part of the judiciary, and to limit the temptation to judicial hindsight, all as discussed in Graham v. John Deere Co., 383 U.S. 1, 35-37 (1965). But such evidence did not in that case deter the Supreme Court from concluding that the claimed invention was obvious as a matter of law, and the patent invalid. A failure to consider such secondary factors, in the face of the evident lack of difference, would not constitute reversible error. Scott Paper Co. v. Fort Howard Paper Co., 432 F.2d 1198, 1203-1204 (7 Cir. 1970). Here the evidence was presented and considered, albeit in documentary form. Since much of it was inherently documentary, there is no reason to suppose that the evidence would have a different impact if it were presented in a trial rather than in summary judgment proceedings. The District Judge afforded the plaintiff every opportunity to meet its burden in opposing the motion under Rule 56(e), even to the extent of allowing an additional affidavit to be filed long after the motion had been taken under advisement.

We agree with the court below in its conclusion that no genuine issue of material fact is presented, and that the defendant is entitled to judgment as a matter of law, under Rule 56. Giving full credence to the plaintiff’s factual assertions, there remains the implacable and undisputed fact that the plaintiff has added nothing to the Taylor disclosures beyond recognizing that the resultant markings could be made in a pattern or design, useful for identification. While this application of the disclosed method may avoid the strict defense of anticipation under § 102, it was nonetheless obvious within the meaning of § 103, and the District Court did not err in adjudging the patent to be invalid.

Our affirmance on the ground of invalidity makes it unnecessary to consider the alternative ground of the judgment below: that the defendant has avoided infringement by confining freeze branding to skin from which the hair has first been removed by clipping. For purposes of further appeal, it is enough to record our doubt concerning the District Court’s narrow interpretation of the claim, in light of the mentions of pre-clipping, both in the patent specifications and examples, without resolving that doubt.

Affirmed.


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    STATE OF NEW MEXICO, on behalf of itself and all other public bodies in the State of New Mexico similarly situated, Plaintiffs-Appellees, v. AMERICAN PETROFINA, INC., et al., Defendants-Appellants.
    No. 26182.
    United States Court of Appeals, Ninth Circuit.
    July 17, 1974.
    William Simon (argued) of Howrey, Simon, Baker & Murchison, Washington, D. C., for defendants-appellants.
    Josef D. Cooper (argued) of Friedman, Koven, Shapiro, Saltzman, Koe-nigsberg, Specks & Homer, Chicago, 111., Perry Goldberg (argued), Chicago, 111., for plaintiffs-appellees.

      Before BROWNING and WRIGHT, Circuit Judges, and KING, District Judge.

       Of the District of Hawaii.

   OPINION

EUGENE A. WRIGHT, Circuit Judge:

In this ease we must decide whether a state is liable for alleged violations of sections 1 and 2 of the Sherman Act. We hold that it is not and affirm the district court’s order dismissing the Shell Oil Company’s counterclaim against the State of New Mexico.

New Mexico, on behalf of itself and all other public bodies in New Mexico similarly situated, sued Shell and five other asphalt suppliers for alleged antitrust violations. Shell counterclaimed, alleging that New Mexico and some of its political subdivisions conspired as consumers of asphalt to fix prices and eliminate competition among themselves, in violation of sections 1 and 2 of the Sherman Act [15 U.S.C. §§ 1, 2], The district court dismissed Shell’s counterclaim, holding that the Sherman Act is not applicable to the conduct of a state. That court certified the case for interlocutory appeal under 28 U.S.C. § 1292 (b), and we granted leave to take an interlocutory appeal.

The issue on appeal is whether sections 1 and 2 of the Sherman Act apply to the conduct of a state and whether sections 4 and 16 of the Clayton Act [15 U.S.C. §§ 15, 26] afford Shell the remedies it seeks. Since sections 4 and 16 of the Clayton Act provide remedies only for violations of the antitrust laws, and since the only alleged violations are of sections 1 and 2 of the Sherman Act, our primary inquiry is whether sections 1 and 2 apply to the conduct of a state.

By its very terms, section 2 applies only to “persons,” and while section 1 invalidates “[e]very contract, combination ... or conspiracy, in restraint of trade,” the remedial portion of section 1 is directed only to “persons.” Thus, the Supreme Court has stated that the “[Sherman] Act is applicable to ‘persons’ including corporations.” Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). Of course, this merely shifts the inquiry to one concerning the meaning of “person” as that term is used in the Sherman Act.

Section 8 of the Sherman Act [15 U. S.C. § 7] defines “person” as used in the Act as follows :

The word “person”, or “persons”, wherever used in sections 1 to 7 of this title shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the' laws of any foreign country.

Since the term is explicitly defined for use throughout the statute and the definition does not include states, there is at least a strong implication that states were not intended to be subject to the Act. See Georgia v. Evans, 316 U.S. 159, 163, 62 S.Ct. 972, 86 L.Ed. 1346 (1942) (Roberts, J., dissenting). This methodology seems precluded, however, by the majority approach in Evans. There the Court considered whether a state was a “person” who could sue for treble damages under section 7 of the Sherman Act, the forerunner of 15 U.S. C. § 15. Notwithstanding the fact that states were not mentioned in the definition of “person” under section 8 of the Sherman Act, the Court held that a state was a “person” under section 8 and could sue for treble damages under section 7. The Court stated that the definition of “person” must be interpreted in light of the “purpose, the subject matter, the context, the legislative history, and the executive interpretation of the statute,” 316 U.S. at 161, 62 S.Ct. at 974, implicitly eschewing a literal or mechanical methodology.

Although the language of Evans supports an inference that sections 1 and 2 of the Sherman Act apply to states (by including states within the definition of “person”), its rationale refutes such a broad interpretation. The policies relied upon to define “person” referred only to the ability of a state to sue for treble damages; no mention was made of states as defendants. It, is, therefore, difficult to conclude that the Court intended actually to define “person” to include states everywhere in the Act. While it is normally desirable that a term be given a uniform meaning throughout an act, especially a term defined in a definitional section, the functional methodology of the Evans Court indicates a more flexible approach. At least it is difficult to conclude that a meaning seemingly broader than the facial meaning of the statutory definition applies throughout the statute when the justification for adopting that meaning refers only to a specific context in which the term is used.

This conclusion is supported by the language of Parker v. Brown, supra, 317 U.S. at 351, 63 S.Ct. at 313, decided less than a year after Evans, where the Court stated that the Sherman Act gives “no hint that it was intended to restrain state action.” If the state were a “person” as that term is used everywhere in the Act certainly the Court would have found a “hint” that the Act restrained states since it clearly restrains “persons.” Thus, we conclude that Evans does not apply beyond its factual context; it dealt only with the question whether a state can sue for treble damages under 15 U.S.C. § 15.

Parker v. Brown did more than negate the language in Evans indicating that a state is a “person” as that term is used everywhere in the Act. The Parker Court expressly declared that states are not subject to the Sherman Act:

The Sherman Act makes no mention of the state as such, and gives no hint that it was intended to restrain state action or official action directed by a state. The Act is applicable to “persons” including corporations (§ 7), and it authorizes suits under it by persons and corporations (§15). A state may maintain a suit for damages under it, Georgia v. Evans, 316 U.S. 159 [62 S.Ct. 972, 86 L.Ed. 1346], but the United States may not, United States v. Cooper Corp., 312 U.S. 600 [61 S.Ct. 742, 85 L.Ed. 1071] — conclusions derived not from the literal meaning of the words “person” and “corporation” ' but from the purpose, the subject matter, the context and the legislative history of the statute.
There is no suggestion of a purpose to restrain state action in the Act’s legislative history. The sponsor of the bill which was ultimately enacted as the Sherman Act declared that it prevented only “business combinations.” 21 Cong.Rec. 2562, 2457; see also at 2459, 2461. That its purpose was to suppress combinations to restrain competition and attempts to monopolize by individuals and corporations, abundantly appears from its legislative history. See Apex Hosiery Co. v. Leader, 310 U.S. 469, 492-493 [60 S.Ct. 982, 84 L.Ed. 1311] and n. 15; United States v. Addyston Pipe & Steel Co., C.C., 85 F. 271, affirmed 175 U.S. 211 [20 S.Ct. 96, 44 L.Ed. 136]; Standard Oil Co. v. United States, 221 U.S. 1, 54-58 [31 S.Ct. 502, 55 L.Ed. 619].

317 U.S. at 351, 63 S.Ct. at 313.

Unlike the Evans language that was negated by Parker, there is no subsequent Supreme Court holding or language to undermine the conclusion that the Parker Court meant what it said. To the contrary, there are significant justifications for concluding independently that states were not intended to be covered by the Sherman Act. First, sections 1 and 2 of the Sherman Act provide for criminal sanctions, a remedy Congress would not lightly apply to states. We are reluctant to impute such an intention without a clear indication from Congress. And there is no indication that Congress intended the civil remedy provision of section 7 of the Sherman Act to have greatpr scope in terms of regulated conduct than section 1 or 2. Second, even concerning the civil remedy of treble damages provided by section 7 of the Sherman Act, the Eleventh Amendment would cause seri- ■ ous difficulties for such a suit against a state. Without a clear indication from Congress, we are reluctant to impute to Congress an intent that would raise such substantial constitutional problems.

The fact that the two principal remedies of the Sherman Act as originally enacted are of dubious propriety if applied to states, the absence of any mention of state action in either the Act or the legislative history, and the language of Parker v. Brown quoted above lead us to conclude that sections 1 and 2 of the Sherman Act do not apply to the activities of a state.

We have yet to confront Shell’s argument, however, based on recent cases, that Parker, does not confer absolute immunity from antitrust liability upon the states. Shell’s position essentially is that only where a state’s legislature affirmatively decides that competition “is not the summum, bonum in a particular field and deliberately attempts to provide an alternate form of public regulation,” George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25, 30 (1st Cir. 1970), is the state immune from antitrust liability. Shell relies upon the language and factual situation of Parker and a number of cases interpreting Parker, primarily Hecht v. Pro-Football, Inc., 144 U.S.App.D.C. 56, 444 F.2d 931 (1971), cert. denied 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972).

In Parker, the California legislature authorized state officials to regulate the marketing of California agricultural products to restrict competition and prevent economic waste. The legislature authorized the creation of a commission, composed of the State Director of Agriculture and others appointed by the governor, to oversee the program. Upon application by ten producers, the commission was authorized to appoint a committee from within the industry to formulate a plan. The commission could then adopt the plan, after public hearings, if “the program was reasonably calculated to carry out the objectives of the Act.” After one such program was adopted for the raisin industry, Parker sued Brown, State Director of Agriculture, to enjoin enforcement of the program, alleging that it violated the Sherman Act.

After stating, in the language already quoted, that the Sherman Act does not apply to the states, the Parker Court emphasized the legislature’s involvement in the plan before concluding that the plan was not violative of the Sherman Act. Thus, Shell argues that the state’s immunity extends only to similar situations where the legislature has mandated an alternative to competition •as the summum, bonum for an industry.

A number of post -Parker cases seemingly enhance Shell’s position by focusing on the legislative involvement in Parker, They are best represented by the First Circuit in George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., supra, 424 F.2d at 30 (footnote omitted):

The [Parker] Court’s emphasis on the extent of the state’s involvement precludes the facile conclusion that action by any public official automatically confers exemption. As one commentator has observed, the assertion that an act is “valid governmental action * * * suggests inquiry rather than ends it. * * * Generally, the underlying issue in determining the applicability of such an exemption is the degree of governmental involvement in, and supervision over, the allegedly wrongful private activity.” Comment, Alabama Power Company v. Alabama Electric Cooperative, Inc., 55 Va.L.Rev. 325, 345-346 (1969). Our reading of Parker convinces us that valid government action confers antitrust immunity only when government determines that competition is not the summum bonum in a particular field and deliberately attempts to provide an alternate form of public regulation.
In terms of such deliberate governmental occupation of a field normally left to the free winds of competition, this case falls at the opposite end of the spectrum from Parker. At the Parker end of the spectrum lie cases like Trucking Unlimited v. California Motor Transport Co., 1967 Trade Cas., ¶ 72,298 (N.D.Cal. 1967), a case involving certification of common carriers, where the deliberate choice of a regulatory agency intervened between the private anti-competitive activity and the resulting restraint on trade, or cases like E. W. Wiggins Airways, Inc. v. Massachusetts Port Authority, 362 F.2d 52 (1st Cir. 1966), cert. denied, 385 U.S. 947, 87 S.Ct. 320, 17 L.Ed.2d 226 (1967), a suit involving an airport service franchise, where a state agency exercised broad authority to manage a monopoly in the public interest. Even at this end of the spectrum, no exemption will be found if state encouragement of price stability falls short of the delegation and approval in Parker. See Schenley Indus., Inc. v. New Jersey Wine & Spirit Wholesalers Ass’n, 272 F.Supp. 872 (D.N.J. 1967); cf. United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 561-562, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944).
The middle of the spectrum is occupied by cases in which the state has chosen to regulate a field, but state policy is neutral or silent with respect to restraints of trade.- Since there is no conflict in such cases between state regulatory action and the policy of unfettered competition, the courts have found no difficulty in denying antitrust immunity. Northern Securities Co. v. United States, 193 U.S. 197, 347-350, 24 S.Ct. 436, 48 L.Ed. 679 (1904), cited in Parker v. Brown, supra, at 317 U.S. 351, 63 S.Ct. 307, [87 L.Ed. 315]; Travelers Insurance Co. v. Blue Cross of Western Pennsylvania, 298 F.Supp. 1109 (W.D.Pa.1969); cf. Asheville Tobacco Board of Trade, Inc. v. FTC, 263 F.2d 502 (4th Cir. 1959).

But these cases involved suits against allegedly private defendants who defended on the basis that the state has authorized their anti-competitive conduct. The alleged authorization is normally either a putative regulatory scheme or a state created corporation intended to manage a monopoly in the public interest.

In either situation, it is necessary to determine whether the anti-competitive result actually is a goal of the state entitled to the state’s immunity rather than a private group masquerading under the banner of “state action.” Such a determination necessarily involves an inquiry into legislative motives, and courts are understandably reluctant to apply the state’s immunity to private parties without a clear indication by the state’s legislature that the anti-competitive results have its sanction.

But there is no indication from those cases that the legislature must declare its intent to supplant competition in an industry when there is no question that the conduct is committed by the state. Since the suit here is directly against the state, there can be no such question, and the Whitten analysis is inapplicable. The “legislative mandate” test is useful, indeed possibly necessary, when there is doubt if the defendant or the regulatory scheme is really an instrument of the state. But when there is no doubt that the defendant is the state, the “legislative mandate” analysis is unnecessary.

This conclusion comports with the reliance in Parker upon a “legislative mandate”. After declaring that the Sherman Act is inapplicable to states, the Court seemingly turned to the question whether the plan was really the act of the state, noting that “a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful.” From what follows in the Court’s opinion, it appears that the Court was responding to the obvious point that since the Commission was comprised of industry leaders and the plan was formulated by industry representatives, the plan was nothing more than a private agreement disguised as state action. It was apparently to this obvious objection that the Court responded when it relied upon the legislative regulatory policy and the fact that the commissioners were gubernatorial appointees. Thus, the Court was merely relying on the legislative mandate to conclude that the plan was the product of the state; it did not conclude that state action is immune from antitrust liability only when directed by the legislature as part of an anti-competitive regulatory scheme.

We have yet to consider in detail Hecht v. Pro-Football, Inc., supra. There, the District of Columbia Armory Board, a public body which operates Robert F. Kennedy Stadium, entered into a lease with a football team, the Washington Redskins, that prohibited the Armory Board from leasing the stadium to any other professional football team. The district court dismissed an antitrust suit against the parties to the lease, holding that the lease was a governmental act and, as such, exempt from the antitrust laws under Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). The District of Columbia Circuit reversed and remanded.

The court disagreed with the conclusion that all governmental action is exempt from the antitrust laws:

The rationale of the trial court and the theory of the appellees in sustaining its decision set forth as “the execution of the * * * lease * * * constituted valid governmental action which is immune from application of the antitrust laws.” In support of this appellees state, “The key, undisputed fact is that the Armory Board is a governmental agency.” And we are cautioned not to “overlook the fact that, in leasing the Stadium, the Armory Board acted pursuant to an Act of Congress.” In conclusion, after review of the pertinent authorities appellees deduce the “rule that where direct governmental action, as distinct from private conduct, has caused the alleged injury to a plaintiff, the provisions of the federal antitrust laws are inapplicable * * -x-» an(j “the action of the Armory Board in entering into the Stadium lease with the Redskins was a governmental act which is immune from application of the antitrust laws.”
After a study of the rationale back of the decided cases in this area of antitrust law, we consider that the issue, the facts considered most relevant by appellees, and the rule derived by ap-pellees is a much too talismanic approach where scrupulous distinctions are called for. As was said earlier this year by Judge Goldberg in Woods Exploration & Producing Co. Inc. v. Aluminum Co. of America, [438 F.2d 1286], “[t]he instant case involve[s] state participation. That proposition, however, only begins the analysis, for it is not every governmental act that points a path to an antitrust shelter. We reject ‘the facile conclusion that action by any public official automatically confers exemption.’ George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., * * * 1 Cir. 1970, 424 F.2d 25, 30.” Like Circuit Judge Coffin in Paddock Pool, supra, “[w]e are particularly reluctant to rely on verbal formulae to solve problems of antitrust liability.”

444 F.2d at 934-935 (footnotes omitted).

The significant point of Hecht is that the court, for the first time, drew the “scrupulous distinctions” not to determine whether the Board was actually a private party, but rather to determine whether an admittedly governmental body fell within the scope of antitrust laws. The case is distinguishable on the ground that the governmental body was a federal rather than state' entity. However, the court did not limit its reasoning to cases involving federal action, and it relied heavily on cases, such as Parker, involving state action. The implication of the court’s language and approach is that states are not always immune from antitrust liability.

Our conclusion that a state (once found indeed to be a state) is not covered by sections 1 and 2 of the Sherman Act is inconsistent with the rationale of Hecht. We can do no more than say that, for the reasons already discussed, we disagree with the implication of Hecht that a state may sometimes be liable.

A final point raised by Shell must be considered. It argues that states engage in numerous “business activities” that are similar to the conduct of private parties. The state acting as a consumer, as in this case, is a common example. Shell argues that when states act like private businesses or as consumers they should be treated as such under the antitrust laws. This may be true, but it is a matter for Congress to decide. The basis (grounded in federalism) for our conclusion that Congress did not intend the Sherman Act to apply to the states does not vary in strength depending on the specific activity in which the state engages. Therefore, we have no basis for concluding that Congress intended sections 1 and 2 of the Sherman Act to apply to some activities of the state but not to others.

We conclude that a state cannot be sued for alleged violations of sections 1 and 2 of the Sherman Act. The order of the district court dismissing Shell’s counterclaim is affirmed, and the case is remanded for further proceedings.

      . This is a question of first impression for this court. The issue was presented as to a county in Security Fire Door Company v. County of Los Angeles, 484 F.2d 1028 (9th Cir. 1973), but the case was decided on other grounds, see id. at 1030 n.2.

      . Section 1 of the Sherman Act, as amended, [15 U.S.C. § 1] provides in relevant part:
      Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. . . . Every person who shall make any contract or engage in any combination or conspiracy declared by sections 1 to 7 of this title to be illegal shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding fifty thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.
      Excepting two provisos, not here relevant and deleted from the above quotation, and an increase in the magnitude of the fine, the language of 15 U.S.C. § 1 is substantially the same as when originally enacted. See 26 Stat. 209, ch. 647 § 1 (1890).
      Section 2 of the Sherman Act, as amended, [15 U.S.C. § 2] provides :
      Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding fifty thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.
      Except for an increase in the magnitude of the fine, 15 U.S.C. § 2 is identical to the original enactment. See 26 Stat. 209, ch. 647, § 2 (1890).

      . Shell seeks treble damages, costs and attorneys’ fees along with injunctive relief. Section 4 of the Clayton Act, as amended [15 U.S.C. § 15] provides:
      Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.
      This language has not been altered since its original enactment. See 38 Stat. 731, ch. 323, § 4. It is similar to section 7 of the Sherman Act [26 Stat. 210, ch. 647, § 7] (1890), now repealed.
      Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any circuit court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney’s fee.

        We note that Section 4 of the Clayton Act omits the language “by any other person or corporation” used in Section 7 of the Sherman Act. The omission might give rise to the inference that injuries need no longer be caused by “persons.” The difference in language, however, seems to be without relevance. The Senate report on the bill repealing Section 7 of the Sherman Act indicates that the purpose of Section 4 of the Clayton Act was to provide a private remedy for violations of all “antitrust laws,” not just violations of the Sherman Act. Sen.Rep.No. 619, June 21, 1955, H.R. 4954, 1955 U.S. Code Cong. & Admin.News, p. 2328. No significance was given to the fact that Section 4 of the Clayton Act omits the phrase' “by any other person.” In addition, in Georgia v. Evans, 316 U.S. 159, 62 S.Ct. 972, 86 L.Ed. 1346 (1942), the Court analyzed section 7 of the Sherman Act, which was still in force, without any mention of the different language used in section 4 of the Clayton Act. Indeed, Justice Roberts, dissenting, relied on the very phrase that is missing from section 4 of the Clayton Act. 316 U.S. at 163, 62 S.Ct. 972. Had the difference been significant, analysis under section 7 would not have ended the inquiry for Justice Roberts.
      Regarding injunctive relief, 15 U.S.C. § 26 provides in relevant part:
      Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws.

      . An identical definition is found in section 1 of the Clayton Act [15 U.S.C. § 12].

      . Nor is there any indication that either section 4 or section 16 of the Clayton Act [15 U.S.C. §§ 15, 26] was intended to expand the scope of regulated conduct under sections 1 and 2. They merely provided additional remedies for conduct prohibited elsewhere in the Acts.

      . Since we hold that Shell’s claim does not state a cause of action under the Sherman Act, we need not consider the question whether the fact that Shell’s complaint is a counterclaim circumvents the proscription of the Eleventh Amendment. Nor does the analysis depend upon a holding, and therefore we do not hold, that the Eleventh Amendment would bar a suit for treble damages against a state under the Sherman Act. The point is that the Eleventh Amendment raises such serious questions concerning such a suit that it is unlikely that Congress had a futile intent to apply the Sherman Act to the states. And even if a counterclaim would not be barred, it is unlikely that Congress intended to apply the Sherman Act to the states merely to cover the counterclaim situation. It should be noted in this regard that, as originally enacted, the Sherman Act provided for no private injunctive relief. And there is no indication that including private injunctive relief in Section 16 of the Clayton Act [15 U.S.C. § 26] expanded the substantive scope of the Sherman Act.

      . The difficulty of applying the third remedy, forfeiture of property under section 6 of the Sherman Act [15 U.S.C. § 6], seems no more benign than those mentioned in connection with treble damages and criminal sanctions.

      . This conclusion is not necessarily contrary to the policies one might discern in the antitrust laws. It is true that the Sherman Act was intended to protect competition, see Apex Hosiery Co. v. Leader, 310 U.S. 469, 492-493 & n.15, 60 S.Ct. 982, 84 L.Ed. 1311 (1940). But the problem presented by the trusts of 1890 was not only that they prevented competition detrimentally to consumers, but also that they were, in a laissez-faire economy, able to do so unchecked by popular control of any type. While states might act anti-competitively, they do not do so unchecked by popular control. Thus, it is possible to conclude that the Sherman Act was aimed at controlling anti-competitive elements where there was no available remedy rather than at controlling all possible anti-competitive entities, including states. Of course, this is not the only reasonable interpretation of the Sherman Act’s policies, but is a reasonable one which at least shields our holding from the claim that it is inconsistent with any reasonable purpose Congress could have had in mind.
      We also note that where a state’s activities affect the economy of another state, to whose citizens it is not responsible politically, the activity must be carried out within the confines of the Interstate Commerce clause.

      . For example:
      [The marketing program] derived its authority and its efficacy from the legislative command of the state and was not intended to operate or become effective without that command.
      (317 U.S. at 350, 63 S.Ct. at 313, emphasis added).
      We find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature.

        Id. at 350-351, 63 S.Ct. at 313 (emphasis added).
      The state itself exercises its legislative authority in making the regulation and in prescribing the conditions of its application.

        Id. at 352, 63 S.Ct. at 314 (emphasis added).

      . Since we reject Shell’s argument, we need not consider whether New Mexico’s legislature has mandated anti-competitive purchases of asphalt to replace competition among inferior public bodies.

      . One set of such cases should be separated from the others at the outset. In Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), the Court held that joint efforts to influence public officials in the passage of laws are beyond the scope of the antitrust laws. Noerr cited Parker, 365 U.S. at 137 n.17, 81 S.Ct. 523, and both Parker and Noerr-Pennington deal with what might be termed “state-action” immunity. But by imputing the “legislative” limitation of Noerr-Pennington to Parker, Shell loses sight of the fact that they are two separate doctrines. See, e. g., George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25 (1st Cir. 1970), where Parker and Noerr-Pennington immunity are discussed separately. The case before us has none of the elements of a Noerr-Pennington case, and the Noerr-Pennington doctrine is inapplicable.

      . See also Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 706, 82 S.Ct. 1404, 1414, 8 L.Ed.2d 777 (1962), “[Parker] sustained the validity of mandatory state or federal governmental regulations. . . . ” ; Consolidated Gas Electric Light & Power Co. of Baltimore v. Pennsylvania Water & Power, 194 F.2d 89, 99 (4th Cir. 1952), “[Parker involved] the right of the State of California to regulate and control the production of agricultural products within the state”; Morton v. National Dairy Products Corp., 287 F.Supp. 753, 763 (E.D.Pa.1968). “[Parker holds that] activity imposed by a state on sellers through legislation ... is ‘state activity’ beyond the reach of the antitrust laws”; and North Little Rock Transportation Co., Inc. v. Casualty Reciprocal Exchange, 85 F.Supp. 961, 964 (E.D.Ark.1949), “The Sherman Act is not violated by acts authorized and regulated by state statute”. In Wainwright v. National Dairy Products Corp., 304 F.Supp. 567 (N.D.Ga.1969), the Court found the existence of “state action” by finding: “In short, the state’s hand ran throughout the statutory scheme” (Id. at 574).

      . See, e. g., Travelers Insurance Co. v. Blue Cross of Western Pennsylvania, 298 F.Supp. 1109 (W.D.Pa.1969).

      . See, e. g., Wiggins Airways, Inc. v. Massachusetts Port Authority, 362 F.2d 52 (1st Cir.), cert. denied, 385 U.S. 947, 87 S.Ct. 320, 17 L.Ed.2d 226 (1966) ; Ladue Local Lines, Inc. v. Bi-State Development Agency of Missouri-Illinois Metropolitan District, 433 F.2d 131 (8th Cir. 1970).

      . Nor can there be any valid argument that a county is really a private party masquerading under .the umbrella of state authority.

      . Any other reading of Parker would make the “legislative mandate” discussion inconsistent with the earlier statement that the Sherman Act is inapplicable to the states.
      It is true that the defendant was clearly a state officer in Parker. But the plaintiff was not asserting that the Director of Agriculture was liable: he was arguing that the Director could not enforce his regulations requiring admittedly private parties to act anti-competitively. It is far different to conclude that a state official, not acting under the mandate of a legislative regulatory scheme, can be enjoined from forcing private parties to act anti-competitively than to conclude that the official or the state for whom he acts is itself liable for a violation of the Sherman Act. The former is merely a Supremacy Clause question.

      . This distinction is not without significance, since the federalism obstacles to state antitrust liability discussed above are inapplicable. The central issue in Ileclit was whether Congress, in granting authority to the Armory Board to operate Robert F. Kennedy Stadium, authorized a mode of operation inconsistent with the antitrust laws. See 444 F.2d at 935, 938, 942-947. Since Congress had enacted both the antitrust laws and the legislation concerning the stadium, and since the former preceded the latter both chronologically and in order of national importance, the court began with the premise that the antitrust laws applied to the operation of the stadium absent “a definite clearly expressed, specific intent of Congress” to the contrary. Id. at 947. A different premise underlies the question of the applicability of the antitrust laws to state action. As stated in Parker, “[i]n a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.” 317 U.S. at 351, 63 S.Ct. at 313.

      . The issue is more properly framed as one involving the applicability of the Sherman Act to the states rather than a state’s immunity from the Act.

      . We note that we are faced only with an antitrust claim directly against the state. We express no opinion on the liability of private parties who conspire with a state in restraint of trade. Nor do we imply that a state cannot be enjoined from forcing private parties to violate the antitrust laws where the requirements of Parker are not met.
      In addition, we express no view concerning, the circumstances in which state agents, officers, and employees acting in their official capacities are subject to the Sherman Act. Of., e. g., Rangen, Inc. v. Sterling Nelson & Sons, 351 F.2d 851, 858-859 (9th Cir. 1965).
      Since we have concluded that states are not regulated by sections 1 and 2 of the Sherman Act, we need not consider whether sections 4 and 16 of the Clayton Act afford Shell the remedies it seeks..


author: BUTZNER, Circuit Judge:

text:
    James Franklin LEWIS, Jr., Appellant, v. ROLAND E. TREGO & SONS, Appellee.
    No. 73-1952.
    United States Court of Appeals, Fourth Circuit.
    Argued April 1, 1974.
    Decided Aug. 2, 1974.

      Joseph F. Lentz, Jr., Baltimore, Md., for appellant.
    R. Roger Drechsler, Baltimore, Md. (Raymond J. Cardillo and David D. Patton, Baltimore, Md., on brief), for appel-lee.
    Before BUTZNER, RUSSELL, and FIELD, Circuit Judges.
   BUTZNER, Circuit Judge:

James Franklin Lewis, Jr., a marine construction worker, appeals from an order dismissing his complaint against his employer, Roland E. Trego & Sons, Inc., for personal injuries he received while working on a moored construction barge in 1969. We affirm the district court’s dismissal of Lewis’ Jones Act claim, but we vacate that part of the order which dismisses his general maritime claim based on unseaworthiness and remand the case for further proceedings.

Trego, a marine contractor, hired Lewis as a general laborer to work on land and on its pile driver and barges. While working aboard a barge, Lewis was injured by an overturning scaffold that had been erected to enable him and other workmen to place headers atop piles for the construction of a boathouse.

The district court found that Lewis had no seaman’s papers and was not assigned to any vessel in Trego’s fleet. He rarely accompanied a barge as it was being moved from one job to another. He slept ashore and performed 90 percent of his work on land. He went aboard a vessel only when his construction work required him to be on the water. From these facts, the district court found that Lewis was not sufficiently connected with Trego’s barge to be a member of the crew. Since there is evidence to support it, this finding is conclusive. South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 258, 60 S.Ct. 544, 84 L.Ed. 732 (1940). Accepting the factual premise that Lewis was not a member of the crew, we approve the court’s conclusion that he could not recover under the Jones Act. 46 U.S.C. § 688; Labit v. Carey Salt Co., 421 F.2d 1333 (5th Cir. 1970); Bellomy v. Union Concrete Pipe Co., 297 F.Supp. 261 (S.D.W.Va.1969), aff’d per curiam, 420 F.2d 1382 (4th Cir. 1970); see Hill v. Diamond, 311 F.2d 789, 793 (4th Cir. 1962) (dictum).

Lewis’ claim of unseaworthiness stands on a different footing. The district court properly recognized that a shore-based employee doing a seaman’s work on his employer’s vessel in navigation can recover for injuries caused by unseaworthiness, although he is not a member of the crew. Reed v. The S.S. YAKA, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963). The court correctly ruled that the barge was a vessel, Norton v. Warner Co., 321 U.S. 565, 65 S.Ct. 747, 88 L.Ed. 931 (1944), and that it was in navigation while moored in navigable waters to give the workmen access to offshore piling. Cf. Senko v. LaCrosse Dredging Co., 352 U.S. 370, 373, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957).

The critical question, therefore, is whether Lewis was doing the work of a seaman aboard the barge. If he was, he is entitled to sue on the warranty of seaworthiness ; if not, his suit must be dismissed. Compare Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946) with United Pilots Ass’n v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959). In deciding this issue, we accept the district court’s findings of fact and differ only with its legal conclusions.

The district court found: “When the wooden barge was used in connection with 'defendant’s construction work, plaintiff would assist in moving it, handling lines, or otherwise preparing it for its intended use as a floating platform. However, the evidence indicates that such activity was a very small percentage of the total work that plaintiff did for Trego.” The evidence also disclosed that in preparing the barge for its intended use, Lewis pumped water from its bilge and carried equipment and building materials aboard. But Lewis was not tending the barge when he was injured. Instead, he was engaged in building a 50' x 150' boathouse that required one row of piling on land and three in the water. Because of the depth of the water and the distance from shore, the barge was indispensable for placing headers on the offshore piling. The district court found that “the work then being done by plaintiff was contributing to the mission of such barge, namely its use as a floating platform for the performance of marine construction work.” It thereupon found that Lewis was employed to work on the barge “in a capacity contributing to its essential mission and purpose.”

There can be no doubt about the adequacy of the evidence to support the court’s finding that Lewis was contributing to the barge’s essential mission when he was injured. This finding alone appears to establish his status conclusively. One who works aboard a ship in navigation is usually considered to be a seaman if his duties are essential to some purpose of the vessel. Lawrence v. Norfolk Dredging Company, 319 F.2d 805, 808 (4th Cir. 1963) ; Gahagan Construction Corp. v. Armao, 165 F.2d 301, 305 (1st Cir. 1948). The work need not be in actual aid of navigation. Carumbo v. Cape Cod S.S. Co., 123 F.2d 991, 994 (1st Cir. 1941). The district court, however, held that Lewis’ claim was not controlled by these principles.

The court did not consider Lewis’ conventional maritime duties to be significant. It recognized that moving a barge, handling lines, pumping bilge, and loading supplies are traditionally seamen’s work. See, e. g., Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Jeffrey v. Henderson Bros., 193 F.2d 589, 591 (4th Cir. 1951) but held that they formed too little of Lewis’ total work to make him a seaman. The Supreme Court, however, has repeatedly held that a person transitorily aboard a vessel is entitled to a warranty of seaworthiness if he is performing the work of a seaman. Seas Shipping Co. v. Sieracki, supra; Pope & Talbott, Inc. v. Hawn, 346 U.S. 406, 412, 74 S.Ct. 202, 98 L.Ed. 143 (1953). The fact that 90 percent of Lewis’ work was on land does not detract from the maritime nature of his duties afloat.

The district court also pointed out that the boathouse was an extension of the land and that for the purposes of this case it was not a proper subject of admiralty jurisdiction. It reasoned that since “seamen traditionally do not drive piles, build boathouses or construct bulkheads,” Lewis was not entitled to the warranty of seaworthiness, but must seek a remedy under appropriate compensation laws.

Certainly, a shore-based worker climbing over the roof of a boathouse could not invoke the maritime warranty of seaworthiness. His remedy would be governed by state law. Cf. Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971). But Lewis’ case does not depend on extending admiralty jurisdiction to the boathouse. The accident occurred on a barge in navigation, and it is the nature of his work there that determines his status. Cf. Garrett v. Enso Gutzeit O/Y, 491 F.2d 228 (4th Cir. 1974).

We have held that construction workers on scows or barges who were engaged in building structures which were extensions of land were seamen. Biggs v. Norfolk Dredging Co., 360 F.2d 360, 362 (4th Cir. 1966) (construction laborer putting caps on bridge piles); Sum-merlin v. Mossman Construction Co., 199 F.2d 715 (4th Cir. 1952) (crane fireman on barge building bridge); Leary Construction Co. v. Matson, 272 F. 461, 463 (4th Cir. 1921) (winchman on pile-driver scow building dock); see also Sprat-ley v. Tidewater Construction Co., 238 F.Supp. 650 (E.D.Va.1965) (laborer on barge building bridge). Other courts have reached this conclusion in similar circumstances. See, e.g., Stafford v. Perini Corp., 475 F.2d 507 (1st Cir. 1973) (cement-form carpenter on offshore construction barge); see also 1 Norris, The Law of Seamen, §§ 17, 21 (1970). These cases dealt with the application of the Jones Act and the status of the employees as crew members. In this respect, of course, they are not controlling. They illustrate, however, that construction employees working on vessels in bays and harbors are seamen. The work that the successful claimants in these cases performed was indistinguishable from the work that Lewis was doing. Historically, both Congress and courts of admiralty have drawn a distinction between purely terrestrial injuries and those occurring on navigable water. See Nacirema Operating Co. v. Johnson, 396 U.S. 212, 222, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969). We find no warrant for considering an injury which took place on a construction vessel in navigable waters as an injury occurring on land either because the structure being built over the water will be an extension of the land or because the injured worker who was assigned a place of work on the vessel normally performed most of his work on land.

In sum, we hold that Lewis cannot recover under the Jones Act because he was not a member of the barge’s crew. However, as a land-based worker performing a seaman’s work aboard a vessel in navigation, he is entitled to seek recovery for injuries caused by the vessel’s unseaworthiness.

The judgment is affirmed in part, vacated in part, and remanded for further proceedings. Lewis shall recover his costs.

      . Trego makes no claim that the case is governed by the 1972 Amendments to the Longshoremen’s and Harbor Workers’ Compensation Act, P.L. 92-576, 86 Stat. 1251. (1972).

      . Trego asserts that Lewis did not allege a cause of action under the doctrine of unseaworthiness in the second count of his complaint. Lewis, denying any defect, countered with a motion to amend. Without deciding this issue, the district court “assumed that a proper cause of action has been alleged.” We make the same assumption, confident that, if need be, the district court will consider Lewis’ pending motion to amend.