author: ENGEL, Circuit Judge.

text:
    Willard BARRY and Harriet Barry, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    No. 73-1858.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 1, 1974.
    Decided Aug. 5, 1974.

      Willard Barry, Cleveland, Ohio, for appellants; John Kennedy Lynch, Cleveland, Ohio, on brief.
    Lawrence Ross, Tax Div., Dept, of Justice, for appellee; Scott P. Cramp-ton, Asst. Atty. Gen., Meyer Rothwacks, Donald H. Olson, Charles R. Burnett, Attys., Tax Div., Dept, of Justice, Washington, D. C., on brief; Frederick M. Coleman, U. S. Atty., of counsel.
    Before WEICK, McCREE and EN-GEL, Circuit Judges.
   ENGEL, Circuit Judge.

Taxpayers Willard Barry and his wife Harriet M. Barry appeal from that part of a judgment of the United States District Court for the Northern District of Ohio which denied their claim for a refund of income taxes based upon claimed depreciation for the years 1959 and I960 and upon a claimed loss resulting from demolition in 1960. The taxpayers had sought unsuccessfully to take depreciation in those years on a commercial building owned by them and located in downtown Colorado Springs, Colorado. They were likewise unsuccessful in claiming a loss due to demolition when the building was torn down. Harriet Barry had inherited the property by specific devise from her mother Louie N. Mullin when she died on June 1, 1959.

The district court found that all of the value in the Colorado Springs property lay in the land, and that the aging commercial building located upon it was without a separate market value. Consequently, the judge ruled that the building was without separate adjusted basis, within the meaning of § 1014 of the Internal Revenue Code of 1954, from which taxpayers could take depreciation under § 167 or a demolition loss deduction under § 165.

The principle issue on appeal is whether the district court correctly determined that the building for which taxpayers claimed depreciation and demolition loss had no value, and therefore afforded taxpayers no basis from which to depreciate or suffer a loss due to demolition.

A taxpayer’s basis in inherited property is the fair market value of that property at the date of decedent’s death or, at the taxpayer’s option, at the “alternate valuation date”. §§ 1014, 1032, Internal Revenue Code. For purposes of federal estate tax liability, the Barrys elected to take their basis as of the alternate valuation date of June 1, 1960. At that time, it was agreed that the total value of the taxpayers’ Colorado Springs real estate was $160,000. However, no breakdown or allocation between land or building was made on the estate tax return. Thús, while the total value of the property is not seriously disputed in this action, for the purpose of assessing the amount, if any, of depreciation and loss deductions allowable to the taxpayers for the building, it was incumbent upon the taxpayer, the Internal Revenue Service, and ultimately the trial court to make a determination of the taxpayers’ basis in the building, by allocating the total fair market value of the property between the land and the building.

“Fair market value of property” has been defined as “what a willing buyer would pay in cash to a willing seller”. United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336 (1943). Likewise, this court has held that the determination of fair market value is a question of fact. Estate of Kreis v. C. I. R., 227 F.2d 753 (6th Cir. 1955). Findings of fact may not, of course, be set aside unless they are clearly erroneous. F.R.Civ.P. 52. Thus, while the facts may be complex and" the possible inferences therefrom various, the function of this court is a narrow one — to decide whether the trial court’s finding that the building owned by the Barrys had no value — i. e. no fair market value — was clearly erroneous.

Taxpayers’ Colorado Springs property had been in Mrs. Barry’s family for many years. The exact date of the construction of the building was never accurately established, but the proofs showed that it predated the turn of the century. Basically, the structure was a part two-story and part three-story building, of stone and masonry construction, which occupied all of a lot located at 18-20 South Tejón Street in downtown Colorado Springs. The lot itself was 190 feet in depth, and its 50 foot frontage on South Tejón Street lay some 200 feet south of the intersection of South Tejón and Pikes Peak Avenue, generally recognized as the commercial center of Colorado Springs. While there was a dispute- of fact concerning the structural soundness of the building, the proofs supported the finding of the trial court that the building was without an elevator, could not be air-conditioned, and that, in fact, the owners were instructed not to use the upper floors because of non-conformity with various building code requirements.

Louie N. Mullin owned the property until her death on June 1, 1959, at which time she was a resident of Ohio. On September 15, 1954, Mrs. Mullin had entered into a lease of the premises with the Exchange National Bank of Colorado Springs as lessee. The original term of the lease was five years, commencing January of 1955, with an option in the lessee to extend the lease for an additional five years,, until January 1, 1965. The lease also gave to the lessee the option at any time during the lease term to demolish the building with no payment required to be made on that account to Mrs. Mullin as lessor. The lease did not, however, require demolition. The lease provided that the Exchange National Bank was to pay a monthly rental of $1,000 and an annual payment of $1,000 toward real property taxes. It placed as conditions on the exercise of the demolition option only that the lessee give prior notification to the lessor by registered mail, and that demolition be done in a good and workmanlike manner at lessee’s expense. The lease did not require the construction of any building in place of the demolished building.

On April 23, 1959, the Exchange National Bank exercised its option to extend the lease for the additional five years. In August of 1960, more than one year after Mrs. Mullin’s death, the bank exercised its additional option to demolish the building. Demolition was completed by November 15, 1960.

The evidence in the case supported the finding of the trial judge that Exchange National Bank’s purpose in entering into the lease in 1954 and exercising its option to renew in 1959 was not to occupy the building as such, but was to retain its possession of the land so that ultimately it could be used for a parking lot and a drive-in teller facility. The property was eventually put to such use under a later lease. Meanwhile, to recoup its rental expenses, the Exchange National Bank put the building to other uses. From March 1955 through December 1956, the building was sublet to the First National Bank at an annual rent of $13,000, the exact amount of Exchange National Bank’s annual obligation to the lessor. First National spent $25,000 in improvements on the building for use as a temporary main office in downtown Colorado Springs while it was rebuilding its own building. Thereafter, the building was subleased to Fashion Bar, a women’s clothing store which had been required to vacate its prior location because of an expansion of a J. C. Penney Company building. Fashion Bar occupied the premises at the time of Mrs. Mullin’s death and thereafter until December of 1959 when it moved to a building which it had purchased.

By the time the dispute came to trial, the building had been gone for more than twelve years, which made valuation more difficult. Nevertheless, the parties presented to the court what we consider to be a classic factual dispute over value which was ultimately resolved by the trial judge adversely to the taxpayers. In addition to the evidence discussed above relating to the uses of the building, the trial court received a wide variety of evidence both from taxpayers and the government on the issue of the fair market value of the building in 1959 and 1960.

Taxpayers offered evidence of value which directly or inferentially might have supported a separate valuation of the building at an amount ranging from $45,000 to $72,680. Their proofs included an appraisal for insurance purposes at $72,680; evidence that fire insurance in force at the date of death and demolition was carried in the amount of $60,000; evidence that the El Paso County Assessor’s Office allocated the total value of the property at 40% for the building and 60% for the land; and their own income tax returns for 1959 and 1960 which placed a value on the building at $54,000 which they later amended to $45,000. In addition, Mrs. Barry testified as owner, of the property that, in her opinion, the building had a value of $60,000 and a remaining useful life of 20 years. The trial judge placed little or no reliance on Mrs. Barry’s own valuation. He also gave Tittle credence to the' 60/40 allocation of the assessor’s office, as the proofs showed that it was a standard formula and was not based upon an appraisal of actual fair market value of the particular property in question.

In our view, the most compelling evidence in favor of the taxpayers was the proof that on the date of Mrs. Mullin’s death, the store was actually in use as a dress shop and the lessee was actually paying the sum of $1,000 per month in rent and $1,000 per year toward taxes. Thus, argue the taxpayers, any structure which has a use value of at least $1,000 a month must have a fair market value in addition to the value of the land on which it is located.

The trial judge, however, rejected the evidence of the plaintiffs below in favor of what the taxpayers have in their brief characterized as a:

“1972 hypothetical appraisal of the building ... by Albert Curry, paid professional ‘expert’ witness who had never inspected the building . [whose] appraisal was based upon prices paid for the acquisition of 5 other downtown real estate parcels, admittedly acquired for development, with no value attributed by Curry to any of the buildings on the acquired parcels, and with no details furnished as to income and expense data for the acquired buildings; so that none of said other buildings was fairly comparable to the building in question.”

Accordingly, appellants urge us to hold that the trial judge’s findings based upon the expert’s testimony are clearly erroneous.

We disagree with the appellants’ characterization of the government’s proof of value. The trial judge’s decision did not rest on so slender a reed as appellants suggest. While it is true that the appraisal by the government’s expert was not made until years after the demolition of the building, the appraiser demonstrated that he was exceedingly well qualified and familiar with commercial values of downtown property in Colorado Springs at the times involved. He properly analyzed the value of the subject property from the three traditional approaches and he satisfactorily explained why he rejected the “reproduction costs less accrued depreciation” approach to value for this building, and accepted as most accurate the results reached by use of market data and income analysis.

The government’s expert witness, Mr. Curry, testified that on the date of inheritance, as well as on the alternate valuation date, the highest and best use of the property was either as vacant land suitable for parking, or suitable and available for the construction of a new commercial building. He further testified and the trial judge accepted his opinion that the old building was a detriment to the overall value of the property. Contrary to the assertion of appellants, the other downtown real estate sales investigated and relied upon by the government expert as comparables, provided convincing support, not only for Mr. Curry’s valuation of the property as a whole, but for his conclusion that the entire value of it lay in the land.

Neither do we find merit in appellants’ assertion that the government’s case rested solely upon expert testimony and was, therefore, deficient. Appellants cite in this regard Estate of Kreis v. Commissioner of Internal Revenue, supra. In Kreis, this court held that the testimony of an expert, alone, was insufficient to compel reversal when the expert’s findings conflicted with the findings made by the trial court. Kreis is authority for affirming the decision of a trial court when its findings are not clearly erroneous. In so holding, this court noted that the trial judge was not bound to accept the findings of an expert, but Kreis did not hold that he was bound to reject them, even as the sole basis for his decision. In any event, the trial judge in this case had additional evidence before him against which to measure that opinion testimony. He had the facts as testified to by the manager of the Fashion Bar, Mr. Levy, relating to the condition of the building at the time. Most importantly, the trial judge had before him evidence of the contemporary treatment of the property at the times involved by those having the responsibility to deal with it, the officers of the Exchange National Bank, Mrs. Mullin, and the taxpayers themselves. This included, of course, the willingness of the Exchange National Bank to rent the property and to take the risk that it might not be able to recoup its rents, solely for the purpose of retaining a right to demolish the building and to use the resultant vacant land for parking. Also convincing to the trial judge and to us was Mrs. Mullin’s willing and presumably well informed decision to enter into a relatively short term lease, which, nevertheless, gave to the lessee a right to demolish the building altogether, without any further compensation.

While taxpayers strenously urge to the contrary, it was permissible for the trial judge to infer from the proofs that taxpayers themselves, in failing to take any steps to avert the demolition of the building, at least in part, tacitly acknowledged that it had little value apart from the land.

Although, as we noted earlier, taxpayers’ proof that the building was rented at the date of death was their most convincing evidence of its value, we do riot believe it sufficient to render clearly erroneous the trial judge’s finding of no fair market value. Indeed, a close examination of the record and the trial judge’s expressed reasons for his findings, reveal sound reasons for disregarding this evidence as controlling proof of value.

It is undisputed that, even with the building, the property had value and was capable of use. We do not believe that it necessarily follows, however, as urged by appellants, that for this reason a failure to ascribe any market value to the building itself was error. Upon reviewing the condition of the building and concluding that rehabilitation costs were prohibitive, the judge concluded that “It could not be said that it really had a useful life left as a retail commercial structure in 1959.” He further concluded that the bank itself, in leasing the property, “regarded the building as having no economic value”, and that the decision of the Fashion Bar to locate in the building and later to seek unsuccessfully a lease in its own right, was in recognition of the prime location which was offered, not of the value of the building itself, and reflected its willingness to take a gamble that it might acquire that location for its own later use.

Moreover, we find no merit in the contention of the taxpayers that the trial court gave no weight to certain evidence offered by them and received by the court. Appellants do not assert that any evidence which they offered was erroneously excluded from presentation or consideration. It is the function of the trial court alone to weigh evidence and assess credibility of witnesses. As taxpayers themselves argue, even the testimony of an expert witness may be disregarded if it conflicts with the sound judgment of the trial court based on his evaluation of all the evidence. Estate of Kreis v. C. I. R., supra. The reviewing court is not to substitute its judgment on the probative value of specific evidence, but is to look to the entire evidence on the record. Unless, on that basis, it is “left with a definite and firm conviction that a mistake has been committed”, it must affirm the findings of the trial court. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 1200, 4 L.Ed.2d 1218 (1960).

We conclude, therefore, upon a careful review of the entire record, that the finding of the district court that the building had no fair market value on the dates in question, and hence that appellants had no basis in the building, is supported by the competent evidence, and is not clearly erroneous. F.R.Civ.P. 52. We decline to hold that, as a matter of law, a building must have a separate fair market value as that term is defined in United States v. Miller, supra, whenever it has a rental value, however temporary.

Finally, we conclude that the district court was correct in declining to consider whether, because of a demolition clause in the lease, taxpayers would have been precluded by Section 1.165-3(b)(2) of the Treasury Regulations to the Internal Revenue Code from taking a demolition loss deduction under Section 165 of the Code. The lease granted the lessee an option to demolish the building, but did not mandate it. Since the trial court found as a matter of fact that the building had no fair market value and hence no separate adjusted basis, a finding which we hold to be not clearly erroneous, it treated the issue as moot. We agree. Even under the construction of the law urged by taxpayers, there would be no loss to deduct since the adjusted basis of the building was found to be zero. “A court is not empowered to ‘declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the ease before it’.” Caldwell v. Craighead, 432 F.2d 213, 218 (6th Cir. 1970).

Accordingly, the judgment of the district court is affirmed. Costs to appel-lee.

      . It is the position of the taxpayers that the building should have been valued for purposes of deducting depreciation in their 1959 and 1960 income tax returns at $40,000, that depreciation on a ten year straight line basis should accordingly have been allowed in the amount of $2,333 for seven months and $3,500 for the ten and one-half months in 1960. They further claim that they were entitled to take a remaining unrecovered cost basis of $34,167 as a loss within the meaning of § 165 of the Internal Revenue Code of 1954, as such loss is further defined in Treasury Regulations § 1.165-3.

      . Pertinent sections of the Internal Revenue Code of 1954 as applicable to this case are as follows:
      § 165. Losses.

      (a) General Rule. — There shall be allowed as a deduction any loss sustained during the taxable year and not compensated for by insurance or otherwise:
      (b) Amount of deduction. — For purposes of subsection (a), the basis for determining the amount of the deduction for any loss shall be the adjusted basis provided in section 1011 for determining the loss from the sale or other disposition of property.

        § 167. Depreciation

      (a) General Rule. — There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)—
      (1) of property used in the trade or business, or
      (2) of property held for the production of income.
      H: * * * *
      (g) Basis for depreciation. — The basis on which exhaustion, wear and tear, and obsolescence are to be allowed in respect of any property shall be the adjusted basis provided in section 1011 for the purpose of determining the gain on the sale or other disposition of such property.
      § 1011. Adjusted basis for determining gain or loss

      The adjusted basis for determining the gain or loss from the sale or other disposition of property, whenever acquired, shall be the basis (determined under section 1012 or other applicable sections of this subchapter) and subchapters C (relating to corporate distributions and adjustments), K (relating to partners and partnerships), and P (relating to capital gains and losses), adjusted as provided in Section 1016.
      § 1014. Basis of property, acquired from a decedent.

      (a) In general. — Except as otherwise provided in this section, the basis of property in the hands of a person acquiring the property from a decedent or to whom the property passed from a decedent shall, if not sold, exchanged, or otherwise disposed of before the decedent’s death by such person, be the fair market value of the property at the date of the decedent’s death, or, in the case of an election under either section 2032 or section 811 (j) of the Internal Revenue Code of 1939 where the decedent died after October 21, 1942, its value at the applicable valuation date prescribed by those sections.

      . Mr. Curry explained to the court that he had researched the records of the Assessor of El Paso County, which included information as to construction, condition and other factors of the building and other buildings in the area, and also that he talked to individuals who were knowledgeable as to the buildings at the particular time. Mr. Curry’s qualifications as an expert real estate appraiser were also fully established in court.

      . Mr. Curry testified that the three traditional approaches are (1) cost less depreciation, (2) market data, and (3) the income approach.

      . According to Mr. Curry, reproduction cost less accrued depreciation was not an appropriate approach for estimating value in the case of a building over sixty years old.

      . Mr. Curry explained his conclusions based upon the income and market data approach, as follows:
      “I indicated earlier, in order for the building to have value, the property had to be capable of producing enough net income that a return or market rent on the value of the land has to be deducted first, and then any income that remains is attributable to or computable to the building, and by taking this figure and capitalizing it at a rate, it gives an indication of building value, so the next step here was to subtract from this net income a return, and I used the rate of 6 percent as being a minimum return that one would expect on their investment at this time at the date of valuation, so I deducted from this 6 percent interest or income return on the land value of $161,000, which I liad estimated based on the market data.
      “We see if we multiply the $161,000 by 6 percent, and as representing the interest or economic rent return on the value of the land as though vacant, would require an income of $9,690.”
      Having demonstrated earlier in his testimony that the land with the building on it was capable of producing $8,800 in income, Mr. Curry concluded:
      “ . . . as so improved, the building has no market value at all; but, rather, it has become a detriment to the land, and really it should have been torn down, because it is incapable of producing net income imputable to improvements; in fact, there is some $890 short because the building is there.”

      . Appellants assert that the trial court accorded “no weight” to: the testimony of either taxpayer; the testimony of the official from the county assessor’s office; the evidence regarding fire insurance; evidence of rental use; and the evidence of value as determined by the Colorado Department of Revenue.

      . United States Treasury Regulation § 1.-165-3(b)(2) provides;
      If a lessor or lessee of real property demolishes the buildings situated thereon pursuant to the requirements of a lease or the requirements of an agreement which resulted in a lease, no deduction shall be allowed to the lessor under Section 165(a) on account of the demolition of the old buildings.
      Whether this language prohibits a demolition loss deduction where demolition is not actually mandatory, but is nevertheless permitted by tlie lessee during tlie term of tlie lease, has produced a split in the circuits. The Seventh Circuit in Landerman v. Commissioner of Internal Revenue, 454 F.2d 338 (1971), and the Eighth Circuit in Foltz v. United States, 458 F.2d 600 (1972), have taken the position that an option in the lessee to demolish the lessor’s building, precludes the taking of the deduction. The Ninth Circuit in Feldman v. Wood, 335 F.2d 264 (1964), and the Fifth Circuit in Hightower v. United States, 463 F.2d 182 (1972), take a more restrictive view of the regulatory language, holding that the lessor may take the demolition loss where demolition by the lessee is permitted but is not mandatory under the terms of the lease. As the issue is not properly before us, we can not take a position at this time as to the proper construction of the regulation. We note, however, that the pertinent regulation is currently under study for possible amendment.

      . See Feldman, supra, and Hightower, supra.


source: Caselaw Access Project

author: WIDENER, Circuit Judge: BUTZNER, Circuit Judge

license: Public Domain

text:
    Grady D. KERSH et al., Appellees, v. V. Lee BOUNDS, Commissioner of the North Carolina Department of Corrections, et al., Appellants.
    Nos. 73-1578, 73-1579.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 7, 1974.
    Decided July 25, 1974.

      Jacob L. Safron, Asst. Atty. Gen., N. C. (Robert Morgan, Atty. Gen., N. C., James M. Bowen, Rutherfordton, N. C., Atty., for Polk County defendants, and Frank B. Aycock, III, Charlotte, N. C., Atty., for Gaston County defendants, on brief), for appellants.
    J. David James, Greensboro, N. C. (Norman B. Smith, Greensboro, N. C. [Court-appointed counsel], and Smith, Carrington, Patterson, Follín & Curtis, Greensboro, N. C., on brief), for appel-lees.
    Before BRYAN, Senior Circuit Judge, and BUTZNER and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

This suit was brought under 42 U.S.C. § 1983 by three indigent inmates of the North Carolina Department of Correction (Department) against the Correction Department Commissioner and the members of the Board of Commissioners of Gaston and Polk Counties, North Carolina. The prisoners alleged that the defendants had treated prisoners in safekeeping status, called safekeepers, normally housed in county prisons at county expense, differently from the regular inmates under custody and control of the Department insofar as their requests for elective, non-essential medical services are concerned. They say the safekeep-ers had thus suffered cruel and unusual punishment in violation of the Eighth Amendment and that this discrimination ran afoul of the Fourteenth Amendment Equal Protection Clause. The case was tried, without a jury, on stipulations of fact, the district court concluding that the prisoners did not prove cruel and unusual punishment, but that the state had no rational basis for such classification among prisoners, and violated the Equal Protection Clause by so doing. The defendants were ordered not to treat the safekeepers differently in any medical matter from other prisoners generally, and each plaintiff was awarded $1.00 as nominal damages. Because we conclude that the state has a rational basis for its action, and there was no Equal Protection violation, we reverse.

One category of safekeeper is a prisoner who has been sentenced to a term of imprisonment for longer than thirty days, has appealed his conviction, and has not been released on bail pending appeal. A safekeeper may also be one held pending trial. Such prisoners are generally held in county jails and the cost of maintaining the prisoner is paid by the county where the prisoner was tried. Safekeepers held pending appeal may be transferred, as a matter of course, to the Department in accordance with N.C.G.S. § 15-183, while any other county prisoner may be transferred if considered necessary for his safety or to avoid a breach of the peace. N.C.G.S. § 153-189.1. In any event, the Department is not liable for the expenses of maintaining convicts until they have been received by Department authorities and, since execution of the sentence is automatically stayed pending appeal under N.C.G.S. § 15-184, safekeepers are not regarded as serving sentences in the Department system until their appeals are decided. The county responsible is billed by the Department for the safe-keepers held by the Department for the county. See also N.C.G.S. §§ 148-4 and 148-29. The parties stipulated that an average of 140 North Carolina prisoners are on safekeeping status in the custody of the Department at any given time, and that the average stay of a person on safekeeping status is five months. The average stay of felony prisoners in the Department system is slightly more than four and one-half years, and misde-meanants slightly more than ten months.

The Department medical staff categorizes inmate medical services as being emergency, routine, or elective. Emergency and routine medical care is given to all state and county prisoners, including safekeepers, while elective care (i. e., that which is not essential to the safe-keeper’s immediate welfare and poses no threat to life or limb) is given at Department expense only to prisoners in custody of the Department who are not on safekeeping status.

The three plaintiffs were all on safekeeping status, held at a Department prison, at the time this suit was filed, and all subsequently became regular inmates under the general custody and control of the Department.

While on safekeeping status pending trial, being held by the Department by order of the Superior Court of Gaston County, plaintiff Price (on loan from the State of Florida for trial) was examined by prison doctors on June 22, 1971 and found to have a slight umbilical hernia. The Department medical staff did not, in their judgment, believe any treatment was necessary, and, at a subsequent examination on December 23, 1971, no hernia was found.

Plaintiff Kersh, while on safekeeping pending appeal, was examined on May 5, 1971 and found to have 20-25 vision. He was found not to be in immediate need of glasses and was not given any. Kersh was again examined on November 4, 1971 and was found to have perfect (20/20) vision at that time.

Plaintiff Rogers was a safekeeper pending appeal who, on examination, was found to need corrective eyeglasses and false teeth (there is no allegation he did not come to prison without either). His request for same was refused, but he received both eyeglasses and false teeth in the fall of 1971 when his conviction was affirmed and he became a regular inmate.

It was stipulated that, had these prisoners been members of the regular prison population other than in safekeeping status when these minor physical impairments were found to exist, they would have been provided with the medical attention or corrective appliances, the lack of which is complained of.

It is argued that the effect of the order of the district court has been to declare the applicable North Carolina statutes unconstitutional, and that a three-judge court should have been convened to hear the case. This contention has no merit, for the only issue here concerned the pattern or practice of state officials in treating safekeeper prisoners different from other prisoners. It is well-settled that when the allegation of unconstitutionality goes to the result obtained by use of statutes not attacked as unconstitutional, a three-judge court is not required. E. g., Turner v. Fouche, 396 U.S. 346, 353-354 and n. 10, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970).

The district court viewed the issue here as being whether there is any justification for inmates being treated to different standards of medical care because those services are being paid for by different divisions of the government, safekeepers by the county, the others by the state. It found that plaintiffs had not proved cruel and unusual punishment, so only the constitutionality of the practice which maintained the two standards of medical treatment for prisoners is considered here. The court was not impressed with the State’s argument that safekeeping status only lasted a short time, and to require providing of elective medical care would be a nuisance, administrative inconvenience, and would cost the state more money. The court said that this distinction between prisoners, based on which state instrumentality pays the'bill, is arbitrary and unreasonable, and held such procedure to be a violation of the Equal Protection Clause.

We think the district court erred when it held the Equal Protection Clause violated upon the facts of this case. Under the North Carolina System, Department prisoners are those who have exhausted their avenues of appeal and are serving their sentences, and all such prisoners are furnished the disputed elective medical care. Safekeeper prisoners, however, are not in that category, for they have not yet been committed to the custody and control of the Department, despite the fact that some safe-keepers may be assigned to the Department for custodial purposes only at the expense of the county. The difference is at once apparent. Prisoners whose terms are not fixed by reason of pending appeals or because not yet tried are safekeepers, prisoners of the county. North Carolina has simply said that those charged with or convicted of crime are county prisoners until they begin serving their sentences, at which time they become Department prisoners. Since the county prisoners are treated alike and the Department prisoners treated alike, we are of opinion there is no equal protection violation. The fact that some county prisoners are housed in Department prisons is not of constitutional significance nor is the fact that the county continues to bear the expense of those prisoners.

Even assuming, however, that the district court was correct in its holding that the North Carolina Department of Correction may have only one category of prisoners, which must include all in the physical custody of the Department, there would still be no Equal Protection violation. “There is no doubt that discipline and administration of state detention facilities are state functions. They are subject to federal authority only where paramount federal constitutional or statutory rights supervene.” Johnson v. Avery, 393 U.S. 483, 486, 89 S.Ct. 747, 749, 21 L.Ed.2d 718 (1969). The constitutional deprivations alleged here were that these three safekeeper prisoners were not allowed elective and unessential, but desired, medical treatment at state expense while prisoners who are regarded as serving their sentences do receive such care as a matter of course. This administrative procedure, just as bail release procedures considered in Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1972), could hardly be regarded as affringing some fundamental right, emanating from the Constitution, or as being based on any suspect criterion. That being so, the applicable standard for measuring the justification of this different treatment of prisoners is the traditional one of whether the distinction has some rational basis. McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973); Schilb v. Kuebel, supra, 404 U.S. at 365, 92 S.Ct. 479 (1972).

We agree with the defendants that it would be a nuisance and administrative inconvenience for the state to be forced to give unessential medical care to safe-keeper prisoners, but our conclusion need not be based on this nor on the fact that prisoners who now say they desire this unessential treatment did not have it outside the prison and were, nevertheless, able to commit their crimes unhindered by their medical inconveniences, which, on the average, would have to wait only five months for treatment.

We think that North Carolina has a rational basis for providing by law that counties shall pay for the upkeep of prisoners whose terms of confinement are uncertain and have not become fixed, who are subject to immediate return to the Sheriff of the County and who are ordinarily in the physical custody of the Sheriff of a county. We see nothing irrational about the State paying for prisoners in its care, and counties paying for prisoners in their care, although such latter prisoners may have been housed by the State on a temporary basis.

We note that the plaintiffs admittedly have been furnished with both routine and emergency medical care. Failure to furnish other and additional elective medical care, which is not essential to the immediate welfare of the prisoners and the lack of which poses no threat to life or limb, we do not think is irrational. It may not be seriously contended that any prisoner detained for however short a period is entitled to have all his needed elective medical care performed while in custody, and it may not be argued that the State is not entitled to set some standard as to which prisoners shall receive the care. When we remember that safekeepers are in the custody of the Department only five months, half that of misdemeanants and less than one-tenth that of felons, and that safekeepers are essentially county prisoners, only being housed by the State on a temporary basis, we do not think North Carolina has acted in an irrational, arbitrary or capricious manner toward them. To the contrary, we are of opinion their treatment so far as medical care is concerned is both reasonable and rational and free from constitutional infirmity.

In sum, we can find nothing arbitrary, capricious or irrational in this state procedure. As the Supreme Court stated in McGowan v. Maryland, 366 U.S. 420, 425-426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961), “[t]he constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective.” This is not such a case. Although set in a different context, we think the language of the court in Ross v. Moffitt, 417 U.S. 600, 611, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974), is persuasive: “Despite the tendency of all rights ‘to declare themselves absolute to their logical extreme,’ there are obviously limits beyond which the equal protection analysis may not be pressed without doing violence to principles recognized in other decisions of this Court. The Fourteenth Amendment ‘does not require absolute equality or precisely equal advantages’. [Citation omitted] Nor does it require the State to ‘equalize economic conditions’.” And, referring to the equal protection question there presented (State appointed attorneys for indigents in discretionary appeals), the court continued: “The question is not one of absolutes, but one of degrees.” 417 U.S. at 612, 94 S.Ct. at 2445.

In view of the disposition we make of the case, we need not consider its class action aspects.

The judgment of the district, court is

Reversed.

BUTZNER, Circuit Judge

(dissenting) :

This case illustrates yet another form of deprivation of due process of law and invidious discrimination against prisoners who pursue their right of appeal A state prisoner who elects not to appeal is provided non-emergency medical services deemed appropriate by prison doctors.' On the other hand, the state denies similar medical attention to a prisoner while his appeal is pending. If the prisoner has been erroneously convicted, he is released or remanded for a new trial without the medical care which the state refused to provide during his wrongful incarceration. If he was properly convicted, he receives the care to which he would have been entitled in the first place had he not appealed.

I would hold that a prisoner is deprived of due process of law 'when the state pursues otherwise legitimate policies in a manner that is calculated to burden unnecessarily his right to appeal. Furthermore, there is no rational nexus between the exercise of this right and the state’s classification of prisoners for medical purposes. Encumbrances on a right so important as appeal must be justified by more than the trifling cost and administrative inconvenience shown in this record. I would affirm also for the reasons stated in the excellent opinion of the district judge. Kersh v. Bounds, 364 F.Supp. 590 (W.D.N.C.1973).

      . Effective February 1, 1974, N.C.G.S. § 162-39.

      See Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) (felony indictment after request for do novo review of misdemeanor conviction) ; North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (unjustified increased sentence on retrial after habeas corpus) ; Wilson v. North Carolina, 438 F.2d 284 (4th Cir. 1971) (refusal to credit time served pending appeal towards commutation of life sentence) ; Cole v. North Carolina, 419 F.2d 127 (4th Cir. 1969) (refusal to credit incarceration pending appeal to sentence).


author: PER CURIAM.

text:
    Edwin DUBA, Appellant, v. W. Don McINTYRE et al., Appellees.
    No. 73-1724.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 15, 1974.
    Decided July 18, 1974.

      Blevens, Bartu & Blevens, Seward, Neb., for appellant.
    Barlow, Watson & Johnson and Steven Flodman, Lincoln, Neb., for appellee McIntyre.
    William T. Oakes, Omaha, Neb., and Mr. Donald Witt, Lincoln, Neb., for ap-pellee Lissman.
    Perry, Perry, Witthoff & Guthery, Lincoln, Neb., for appellee Ach.
    Before GIBSON, BRIGHT and STEPHENSON, Circuit Judges.
   PER CURIAM.

Appellant-Duba brought this damage action for malicious prosecution, false arrest, and violation of 42 U.S.C. § 1983 in the United States District Court for the District of Nebraska (Senior' District Judge Richard E. Robinson, presiding). Appellees, who are officials of Friend, Nebraska- — Justice of the Peace W. Don McIntyre, City Attorney Bernard J. Ach, and Chief of Police Donald Lissman — moved for summary judgment on the grounds of judicial immunity. In an unreported opinion, Judge Robinson sustained the motions and dismissed the case.

The fundament of appellant’s complaint is that appellees maliciously destroyed his business and violated his constitutional rights by attaching and selling off his entire stock of hogs, valued at several thousand dollars, on the pretense of satisfying a $55 misdemean- or fine. The underlying facts appear to be that on September 11, 1970, Duba entered a plea of guilty before Justice of the Peace McIntyre on a charge of unlawfully permitting some of his hogs to run at large upon the streets of the City of Friend, Nebraska; he was released on the condition that the $55 fine plus $4 costs be paid within one week. On September 24, 1970, City Attorney Ach issued and delivered to appellee-Mc-Intyre an affidavit for a bench warrant, directing Duba’s arrest and the attachment of all of his hogs “in order to satisfy the fine and costs herein as well as the fine and costs in subsequent cases filed for the same offense.” The bench warrant was issued forthwith, Duba was arrested and detained for about one hour, and 110 of his hogs were attached, loaded, and removed to an auction barn in York, Nebraska, where they were sold the following day without bond, inventory, or advertisement.

In answer, appellees raise the defense of judicial immunity for the justice of the peace and, in turn, derivative immunity for the prosecutor and quasi-judicial immunity for the police chief. Judge Robinson concluded:

The Court finds, upon the undisputed facts, that under the pertinent Nebraska law there was jurisdiction over the subject matter, and that notwithstanding acts done in an excess of jurisdiction the defendants are entitled to assert the defense of immunity.

The sole issue on this appeal is whether the doctrine of judicial immunity was properly invoked to shield the conduct of the appellees in this case. We hold that it was.

As the district court correctly noted, the common law rule of judicial immunity from liability for damages was not abrogated by the passage of 42 U.S.C. § 1983, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and that immunity is absolute even though the judge may act in excess of his jurisdiction and "with malice. Id. at 554, 87 S.Ct. 1213. As a judicial officer, a justice of the peace has the benefit of this immunity. Stift v. Lynch, 267 F.2d 237 (7th Cir. 1959). A derivative form of immunity exists for prosecutors who will be cloaked with the same immunity granted to judges when they are acting within the scope of their proper prosecutorial capacity, rather than in an investigatory capacity. Barnes v. Dorsey, 480 F.2d 1057, 1060 (8th Cir. 1973). See Wilhelm v. Turner, 431 F.2d 177 (8th Cir. 1970), cert. denied, 401 U.S. 947, 91 S.Ct. 919, 28 L.Ed.2d 230 (1971). A quasi-judicial form of immunity is extended to police and other court officers for purely ministerial acts where they do nothing other than perform orders issuing from a court. Rhodes v. Houston, 202 F.Supp. 624, 636 (D.Neb.), aff’d, 309 F.2d 959 (8th Cir. 1962) (citing cases). The question therefore is whether the appellees were acting within the scope of their jurisdiction under Nebraska law.

The leading cases which we must turn to for guidance in determining whether the complained-of acts were done in the “absence” of jurisdiction or merely in “excess” of jurisdiction are Bradley v. Fisher, 13 Wall 335, 80 U.S. 335, 20 L.Ed. 646 (1871); Manning v. Ketcham, 58 F.2d 948 (6th Cir. 1932); and Wade v. Bethesda Hospital, 337 F.Supp. 671 (S.D.Ohio 1971). Cf. Jacobson v. Schaefer, 441 F.2d 127 (7th Cir. 1971). These cases instruct that the motivation of the judge is no test of his jurisdiction, and that malice goes only to aggravation of damages and that honesty of purpose goes only to mitigation. Manning v. Ketcham, 58 F.2d at 949. A useful test has been suggested in Wade v. Bethesda Hospital, where the court said:

We begin by defining the concept of jurisdiction as it is used in the context of judicial immunity. The cases are clear that the term jurisdiction means that the judge must have both jurisdiction over the person and subject matter if he is to be immune from suit for an act performed in his judicial capacity. See, Thompson v. Heither, 235 F.2d 176 (6th Cir. 1956) and cases cited therein; Ryan v. Scoggin, 245 F.2d 54 (10th Cir. 1957). A third element, however, also enters into the concept of jurisdiction as used in this context. The third element is the power of the Court to render the particular decision which was given. See, Cooper v. Reynolds, 77 U.S. 308, 316, 10 Wall. 308, 19 L.Ed. 931 (1870); National Malleable & Steel Castings Co. v. Goodlet, 195 F.2d 8 (7th Cir. 1952); City of Phoenix v. Greer, 43 Ariz. 214, 29 P.2d 1062 (1934).
A judge will not lose his immunity because of a mere error in judgment even though the resultant act be in excess of the Court’s jurisdiction. Ryan v. Scoggin, supra; O’Bryan v. Chandler, 352 F.2d 987 (10th Cir. 1965) cert. den. 384 U.S. 926, 86 S.Ct. 1444, 16 L.Ed.2d 530, rehearing den. 385 U.S. 889, 87 S.Ct. 13, 17 L.Ed.2d 123. “Excess of jurisdiction” as distinguished from entire absence of jurisdiction, means that the act, although within the general power of the judge, is not authorized and therefore void, because conditions which alone authorize exercise of judicial power in the particular case are wanting and judicial power is not lawfully invoked. Pogue v. Swink, 365 Mo. 503, 284 S.W.2d 868 (1955).
Consequently, the third element in the concept of jurisdiction as used in the context of judicial immunity necessitates an inquiry into whether the defendant’s action is authorized by any set of conditions or circumstances. [337 F.Supp. at 673.]

In essence, Judge Robinson used this test to examine appellant’s allegations in light of Nebraska law which clearly authorizes judicial officers including justices of the peace to issue executions to recover fines imposed for violation of municipal ordinances. See Neb.Rev.Stat. § 17-564 (Reissue 1970); § 27-1601 (Reissue 1964). Cf. Cleaver v. Jenkins, 84 Neb. 565, 121 N.W. 992 (Neb. 1909). Judge Robinson concluded :

It is clear from the language of the Bench Warrant that the purpose was to aid in the execution and attachment and not to commit the plaintiff to jail until the fine and costs were paid, and the plaintiff’s own evidence confirms that the purpose was not to commit the plaintiff to jail until the fine and costs were paid (Defendant’s (plaintiff’s) Exhibit 8, pgs. 29-31). Other language relating to future fines-and costs goes to an excess of jurisdiction and is superfluous with respect to this action because there is no contention that any money was held for future fines and costs.

We think that Judge Robinson was correct in holding that appellees’ conduct, even though in excess of their jurisdiction, was within their general powers under Nebraska law and therefore cloaked with immunity for the purpose of a civil rights action under § 1983. We also approve Judge Robinson’s wise caveat regarding judicial immunity:

The defendants should not interpret the shield of immunity as for their protection or benefit. As stated in Pierson v. Ray, supra, 386 U.S. at 554, 87 S.Ct. 1213 it is
“(F)or the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.”
In order to benefit the public fully it' is important to exercise good judgment.

See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

Affirmed.

      . This opinion, limited to recognizing the applicability under § 1983 of the common law rule of immunity for the defendants in this case, offers no view on whether plaintiff would have a common law action under Nebraska law in indebitatus assumpsit, and possible damages against the state for the recovery back of a fine which allegedly has been illegally collected. If Nebraska recognizes such an action in indebitatus assumpsit, Nebraska state courts provide the proper forum.