text:
    MARMON TOLEDO CO. v. MONOGRAM LENS CORP.
    No. 5516.
    Circuit Court of Appeals, Sixth Circuit.
    Feb. 9, 1931.
    Paul, Paul & Moore, of Minneapolis, Minn., Whittemore, Hulbert, Whittemore & Belknap, of Detroit, Mich., and Alfred C. Hirth, of Toledo, Ohio, for appellant.
    Owen & Owen and Braselton, Whitcomb & Davies, all of Toledo, Ohio, for appellee.
   PER CURIAM.

Dismissed by court order pursuant to agreement of counsel.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MOSES-ROSENTHAL CO. v. COMMISSIONER OF INTERNAL REVENUE.
    No. 4407.
    Circuit Court of Appeals, Seventh Circuit.
    May 25, 1931.
    Clarence N. Goodwin, of Washington, D. C., for petitioner.
    G. A. Youngquist, Asst. Atty. Gen., J. Louis Monarch and John MaeC. Hudson, Sp. Assts. to Atty. Gen., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and De Witt M. Evans, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for respondent.
    Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
   PER CURIAM.

Upon the authority of Duquesne Steel Foundry Co. v. Burnet, Commissioner, 51 S. Ct. 491, 75 L. Ed.-, and Enameled Metals Co. v. Burnet, Commissioner, 51 S. Ct. 491, 75 L. Ed. -, both decided by the United States Supreme Court April 27, 1931, the petition is dismissed for want of jurisdiction of this court.


text:
    In the Matter of MOSEWELL SECURITY CORPORATION, Alleged Bankrupt-Respondent, Louis Ghosser, Appellant.
    No. 406.
    Circuit Court of Appeals, Second Circuit.
    May 4, 1931.
    Leo J. Linder, of New York City (Albert P. Singman, of New York City, of counsel), for appellant.
    Sternberg & Rosen, of New York City (Sydney Ehrlich, of New York City, and Mortimer D. Atlas, of Brooklyn, N: Y., of counsel), for respondent.
    Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
   PER CURIAM.

Order affirmed.


text:
    Leo J. NEUTZLING, Appellant, v. UNITED STATES of America.
    No. 8920.
    Circuit Court of Appeals, Eighth Circuit
    Feb. 24, 1931.
    S. J. Kroman, of Minneapolis, Minn., for appellant.
    Lewis L. Drill, U. S. Atty., of St. Paul, Minn.
   PER CURIAM.

Appeal dismissed without prejudice and without costs to either party in this court, etc., per stipulation of parties.


text:
    NORTH AMERICAN CREAMERY CO., Appellant, v. Levi M. WILLCUTS, Collector, etc.
    No. 8965.
    Circuit Court of Appeals, Eighth Circuit.
    Feb. 4, 1931.
    For opinion below, see 38 F.(2d) 483.
    Leland W. Scott, of Minneapolis, Minn., for appellant.
    Lewis L. Drill, U. S. Atty., of St. Paul, Minn., for appellee.
   PER CURIAM.

Appeal dismissed without costs to either party in this court, per stipulation of parties.


text:
    Anthony O’BOYLE, Owner of THE Barge MAY QUEEN, Libelant-Appellee, v. BROOKLYN ASH REMOVAL CO., Inc., Respondent-Appellant, and Dauntless Towing Line, Inc., Respondent-Impleaded, THE Steam Tug WYOMISSING, Reading Company, Claimant-Impleaded.
    No. 387.
    Circuit Court of Appeals, Second Circuit.
    May 18, 1931.
    Alexander, Ash & Jones, of New York City (Edward Ash and Lawson R. Jones, both of New York City, of counsel), for appellant.
    William F. Purdy, of New York City (John E. Purdy, of New York City, of counsel), for libelant-appellee.
    Before MANTON, SWAN, and CHASE, Circuit Judges.
   PER CURIAM.

Deeree affirmed.


text:
    George PASENTINO and Henry Mitchell, Appellants, v. UNITED STATES of America.
    No. 9019.
    Circuit Court of Appeals, Eighth Circuit.
    March 7, 1931.
    See, also, 49 F. (2d) 767.
    Frank D. Rader, Charles S. Walden, and Paul S. Conwell, all of Kansas City, Mo., for appellants.

      William L. Vandeventer, U. S. Atty., and Claude E. Curtís, Asst. U. S. Atty., both o£ Kansas City, Mo.
   PER CURIAM.

Appeal dismissed as to Henry Mitchell, on his motion, without costs to either party in this court.


text:
    Annie K. PEAKE et al., Appellants, v. LINCOLN NATIONAL LIFE INSURANCE COMPANY.
    No. 9111.
    Circuit Court of Appeals, Eighth Circuit.
    Jan. 26, 1931.
    See, also, 10 E.(2d) 366; 15 F.(2d) 303.
    George W. Humphrey and James W. Broaddus, both of Kansas City, Mo., for appellants.
    William C. Michaels, of Kansas City, Mo., for appellee.
   PER CURIAM.

Appeal docketed and dismissed at costs of appellants, but without taxation of attorney fee, per stipulation of parties.


text:
    Frank PEREK, Appellant, v. UNITED STATES of America.
    No. 9130.
    Circuit Court of Appeals, Eighth Circuit.
    Feb. 17, 1931.
    E. D. O’Sullivan and C. J. Southard, both of Omaha, Neb., for appellant.
    Charles E. Sandall, U. S. Atty., and Ed-son Smith, Asst. U. S. Atty., both of Omaha, Neb.
   PER CURIAM.

Appeal docketed and dismissed without costs to either party in this court, on motion of appellee under Rule 16.


text:
    PRUDENTIAL INSURANCE COMPANY, Appellant, v. Jeanette FLEMING et al.
    No. 9127.
    Circuit Court of Appeals, Eighth Circuit.
    Feb. 13, 1931.
    Henry I. Eager, of Kansas City, Mo., and Ray Brown, of Wichita, Kan., for appellant.
    J. C. Ammerman, and George V. Farris, both of Joplin, Mo., and C. 0. Pingry, of Pittsburg, Kan., for appellees.
   PER CURIAM.

Appeal docketed and dismissed at costs of appellant, but without taxation of attorney fee, per stipulation of parties.


text:
    In the Matter of RAPSIL CONSTRUCTION CO., Inc., Bankrupt. Maurice Greenhut, Claimant-Appellant, John H. Gamaldi, as Trustee in Bankruptcy of Rapsil Construction Co., Inc., Appellee.
    No. 375.
    Circuit Court of Appeals, Second Circuit.
    May 4, 1931.
    Meier Steinbrink, of Brooklyn, N. Y. (Harold M. Kennedy, and Walter A. Miller, both of Brooklyn, N. Y., of counsel), for appellant.
    Furst, Schwartz & Schwager, of Brooklyn, N. Y. (Julius Schwartz and H. Sidney Landau, both of Brooklyn, N. Y., of counsel), for appellee.
    Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
   PER CURIAM.

Order affirmed.


text:
    Pete RUSS, Appellant, v. UNITED STATES of America.
    No. 9131.
    Circuit Court of Appeals, Eighth Circuit.
    Feb. 17, 1931.
    E. D. O'Sullivan and C. J. Southard, both of Omaha, Neb., for appellant.
    Charles E. Sandall, U. S. Atty., and Ed-son Smith, Asst. U. S. Atty., both of Omaha, Neb.
   PER CURIAM.

Appeal docketed and dismissed without costs to either party in this court, on motion of appellee under Rule 16.


text:
    SHAWNEE STATE BANK et al. v. Hal M. CANNON, Trustee of the Estate of J. S. MULLEN, Bankrupt, et al.
    No. 307.
    Circuit Court of Appeals, Tenth Circuit.
    Jan. 13, 1931.
    Potterf, Gray & Poindexter, Dolman & Dyer, and Slough & Gibson, all of Ardmore, Okl., for appellants.
    Ledbetter & Ledbetter, Sigler & Jackson, and J. B. Moore, all of Ardmore, Okl., for appellees.
    ’Before LEWIS and MeDERMOTT, Circuit Judges, and KENNEDY, District Judge.
   PER CURIAM.

Appeal dismissed January 13, 1931, on motion of appellant.


text:
    Nate SIPORIN, Appellant, v. UNITED STATES of America.
    No. 9163.
    Circuit Court of Appeals, Eighth Circuit.
    March 10, 1931.
    S. J. Kroman, of Minneapolis, Minn., for appellant.
    Lewis L. Drill, U. S. Atty., of St. Paul, Mann.
   PER CURIAM.

Appeal dismissed without costs to either party in this court, pear stipulation of parties.


text:
    Hannah M. SMITH, Administratrix of the Estate of Owen P. Smith, Appellant, v. MISSISSIPPI VALLEY KENNEL CLUB, James C. Gorman, John Skahara, and J. R. Benson, Appellees.
    No. 4459.
    Circuit Court of Appeals, Seventh Circuit.
    May 25, 1931.
    E. Howard M’Caleb, of New Orleans, La., and Henry B. Floyd, of Washington, D. C., ior appellant.
    Paul Bakewell, of St. Louis, Mo., for appellees.
    Before ALSCHULER, EYANS, and SPARKS, Circuit Judges.
   PER CURIAM.

Upon the authority of Smith, Petitioner, v. Springdale Amusement Park, Ltd., et al., Respondents, 51 S. Ct. 368, 75 L. Ed.-, decided by the United States Supreme Court April 13, 1931, tbe decree of the District Court is affirmed.


text:
    Fred E. SUITS et al. v. MAGNOLIA PETROLEUM COMPANY et al.
    No. 347.
    Circuit Court of Appeals, Tenth Circuit.
    Jan. 19, 1931.
    See, also, (D. C.) 31 F.(2d) 205; (C. C. A.) 40 F.(2d) 161; (C. C. A.) 43 F.(2d) 280.
    Allen & Jarman, Everest, Dudley & Brewer, and Suits & Disney, all of Oklahoma City, Okl., for appellants.

      B. B. Blakeney and Kathryn Van Leuven, both of Oklahoma City, Okl., for appellees.
    Before COTTERAL," PHILLIPS, and MeDERMOTT, Circuit Judges.
   PER CURIAM.

Appeal dismissed January 19, 1931, per stipulation, at costs of appellants.


text:
    Mrs. M. L. SULLIVAN, Administratrix, etc., Appellant, v. DIERKS LUMBER AND COAL COMPANY.
    No. 8902.
    Circuit Court of Appeals, Eighth Circuit
    March 9, 1931.
    Sam T. Poe, Tom Poe, and McDonald Poe, all of Little Rock, Ark., for appellant.
    A. J. Murphy and Scott Wood, both of Hot Springs, Ark., J. W. House, of Little Rock, Ark., and J. S. Kirkpatrick, of Kansas City, Mo., for appellee.
   PER CURIAM.

Appeal dismissed on application of appellee, under Rule 17, at costs of appellant.


text:
    Acle TAYLOR v. T. B. WHITE, Warden.
    No. 428.
    Circuit Court of Appeals, Tenth Circuit.
    Jan. 28, 1931.
    S. M. Brewster, U. S. Atty., of Topeka, Kan., for appellee.
    Before LEWIS, PHILLIPS, and MeDERMOTT, Circuit Judges.
   PER CURIAM.

Appeal dismissed January 28, 1931, for lack of merit.


author: PER CURLAM.

text:
    Louis L. TEN BROECK, Appellant, v. JOURNAL PRINTING CO. et al.
    No. 8810.
    Circuit Court of Appeals, Eighth Circuit.
    Jan. 12, 1931.
    A. S. Dowdall, Jr., and Orell R. Leen, both of Minneapolis, Minn., for appellant.
    George S. Grimes and James E. O’Brien, both of Minneapolis, Minn., for appellees.
   PER CURLAM.

Appeal dismissed on motion of appellees, because of death of appellant, without costs to either party in this court, etc.


text:
    Joseph L. TINGLE, Appellant, v. UNITED STATES of America.
    No. 9027.
    Circuit Court of Appeals, Eighth Circuit.
    March 17, 1931.
    See, also, 38 E.(2d) 573.
    Forest W. Hanna and Charles C. Madison, both of Kansas City, Mo., for appellant.
    William L. Vandeventer, U. S. Atty., and Harry L. Thomas, Asst. U. S. Atty., both of Kansas City, Mo.
   PER CURIAM.

Bill of exceptions stricken from record and appeal dismissed without costs to either party in this court, on motion of appellee.


text:
    UNITED STATES of America, Appellant, v. Selmer J. BRACKEY.
    No. 9112.
    Circuit Court of Appeals, Eighth Circuit.
    Jan. 26, 1931.
    William L. Vandeventer, U. S. Atty., of Kansas City, Mo.
    Goldman & Daley, of Kansas City., Mo., for appellee.
   PER CURIAM.

Appeal docketed and dismissed without costs to either party in this court, on motion, of appellant and consent of appellee.


author: PER CURIÁM.

text:
    UNITED STATES of America, Appellant, v. Carl D. COLLINGSWORTH.
    No. 9126.
    Circuit Court of Appeals, Eighth Circuit.
    Feb. 13, 1931.
    William L. Vandeventer, U. S. Atty., of Kansas City, Mo.
    Lawrence E. Goldman, of Kansas City, Mo., for appellee.
   PER CURIÁM.

Appeal docketed and dismissed, on motion of appellant and consent of appellee, without costs to either party in this court.


text:
    UNITED STATES v. Horton HOMERATHA et al.
    No. 319.
    Circuit Court of Appeals, Tenth Circuit.
    Jan. 13, 1931.
    Eor opinion below, see 40 F.(2d) 305.
    Roy St. Lewis, U- S. Atty., of Oklahoma City, Okl.
    Harry O. Glasser, of Enid, Okl., for appellees.
    Before LEWIS, and McDERMOTT, Circuit Judges, and KENNEDY, District Judge.
   PER CURIAM.

Appeal dismissed January'13, 1931, per stipulation.-


text:
    UNITED STATES of America, Appellant, v. Clifford MELTON.
    No. 9109.
    Circuit Court of Appeals, Eighth Circuit.
    Jan. 22, 1931.
    William L. Vandeventer, U. S. Atty., of Kansas City, Mo., for appellant.
    Moore & Moore, of Kansas City, Mo., for appellee.
   PER CURIAM.

Appeal docketed and dismissed without costs to either party in this court on motion of appellant and consent of appellee.


text:
    VIKING PUMP CO., Appellant, v. PERFECTION MANUFACTURING CO.
    No. 9125.
    Circuit Court of Appeals, Eighth Circuit.
    Feb. 13, 1931.
    E. A. Whiteley, of Minneapolis, Minn., for appellant.
    Prank D. Merchant, of Minneapolis, Minn., for appellee.
   PER CURIAM.

Appeal docketed and dismissed with costs, on motion of appellee, under Rule 16.


text:
    WESTERN ELECTRIC COMPANY, Incorporated, Plaintiff-Appellant, v. MAIDEN-TOLEDO, Inc., et al., Defendants-Appellees.
    No. 5687.
    Circuit Court of Appeals, Sixth Circuit.
    June 9, 1931.
    F. O. Richey, of Cleveland, Ohio (H. A. Pattison and F. T. Woodward, both of New York City, Tracy, Chapman & Welles, of Toledo, Ohio, and Richey & Watts, of Cleveland, Ohio, on the brief), for appellant.
    F. F. Crampton, of Toledo, Ohio, for appellees.
    Before MOORMAN, HICKS, andHICKENLOOPER, Circuit Judges.
   PER CURIAM.

In July, 1929, in a suit brought by appellant against appellees, a decree pro eonfesso was entered enjoining the defendants from infringing upon letters patent Nos. 1,707,544 (Thuras) and 1,707,545 (Wente), and from further unfair competition. A perpetual injunction was filed and served. Later, in December, 1929, appellant instituted proceedings in contempt. The District 'Court dismissed the proceedings on the ground that any violation of the injunction was the result of earnest solicitation upon the part of the plaintiff’s agents—analogous to entrapment in criminal cases. Upon a review of the evidence, this court is of the opinion that there was no improper conduct on the part of the appellant and its agents.

As the District Court did not determine the contentions on their merits, the decree is reversed, and the ease remanded for such proceeding.


text:
    Clarence WHITMAN, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
    No. 48.
    Circuit Court of Appeals, Second Circuit.
    May 18, 1931.
    Milbank, Tweed, Hope & Webb, of New York City (Daniel B. Priest, of New York City, of counsel), for petitioner.
    G. A. Youngquist, Asst. Atty. Gen., and Sewall Key and J. P. Jackson, Sp. Assts. to Atty. Gen. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Robert L. Williams, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for respondent.
    Before MANTON, SWAN, and CHASE, Circuit Judges.
   PER CURIAM.

Order affirmed.


text:
    Hugh WINFREY v. UNITED STATES.
    No. 402.
    Circuit Court of Appeals, Tenth Circuit.
    Jan. 28, 1931.
    S. R. Owens, of Denver, Colo., for appellant.
    Ralph L. Carr, U. S. Atty., of Denver, Colo.
    Before LEWIS, PHILLIPS, and Mc-DERMOTT, Circuit Judges.
   PER CURIAM.

Case remanded January 28, 1931, pursuant to stipulation, with direction to vacate the judgment and grant a new trial.


author: CAMPBELL, Senior District Judge.

text:
    Edward PAULSON, Plaintiff-Appellant, v. Michael SHAPIRO et al., Defendants-Appellees.
    No. 72-1368.
    United States Court of Appeals, Seventh Circuit.
    Argued April 10, 1973.
    Decided Dec. 4, 1973.

      Roger B. Harris, Chicago, Ill., for plaintiff-appellant.
    Irving D. Gaines, David A. Saichek, Milwaukee, Wis., for defendants-appel-lees.
    Before PELL and STEVENS, Circuit Judges and CAMPBELL, Senior District Judge

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

   CAMPBELL, Senior District Judge.

Edward Paulson appeals from orders granting defendants’ motion for summary judgment and denying plaintiff’s motion to vacate said judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. The record below consists of the pleadings, affidavits filed by the parties and their attorneys in support of their respective motions, and portions of the deposition of plaintiff-appellant, Edward Paulson. We reverse.

Plaintiff Edward Paulson (PLAINTIFF) is a resident of Illinois. He is a real estate broker and consultant, licensed as such in Illinois, with offices located in Chicago. He is not licensed as a real estate broker in Wisconsin.

Defendant Michael Shapiro (SHAPIRO) is a resident of Wisconsin. He is the president of defendant International Trading Co. and a partner in defendant Millroad Enterprises. Defendant International Trading Co. (ITC) is a Wisconsin corporation with its principal offices in Milwaukee, and is alleged to have been the owner of a certain parcel of real estate located at North Sixth Street and Wisconsin Avenue, Milwaukee, Wisconsin (hereafter, “Sixth Street Property”). Defendant Millroad Enterprises (MILLROAD) is a partnership, the principal offices of which are located in Milwaukee, Wisconsin. Mill-road is alleged to have been the owner of a certain parcel of real estate located at North Seventh Street and Wisconsin Avenue, Milwaukee, Wisconsin (hereafter, “Seventh Street Property”).

The complaint alleges that in 1966 plaintiff was retained by Shapiro to develop the Seventh- Street Property for use as a motor-inn; that plaintiff was to negotiate a lease therefor with some nationally reputed motel operator; that Shapiro had previously contacted an organization known as The Downtowner Corporation for this purpose, but negotiations had been unsuccessful; and that an alleged oral agreement for the retention of plaintiff’s services regarding the Seventh Street Property was confirmed by letter from Shapiro to plaintiff dated August 17, 1966.

The complaint further alleges that, with the knowledge and approval of Shapiro, plaintiff thereafter engaged in various negotiations with The Down-towner Corporation, and advised Shapiro regarding methods, procedures and strategy directed toward the successful negotiation of a lease. During the course of these negotiations, The Down-towner Corporation is alleged to have indicated a preference for the Sixth Street Property which was then owned by ITC. Plaintiff contends that Shapiro thereafter orally authorized him to negotiate a lease for the Sixth Street Property and that a Letter of Intent was subsequently executed by The Downtowner Corporation regarding the Sixth Street Property. The Downtowner Corporation later signed a lease for occupancy of a motel to be constructed on the Sixth Street Property.

Plaintiff’s complaint sets forth a claim in the amount of $180,000.00 for services rendered in connection with the negotiation of the lease.

After deposing plaintiff, defendants moved for summary judgment, supporting their motion with an attorney’s affidavit, setting forth portions of plaintiff’s deposition, and the affidavit of Shapiro, which is limited to statements of “opinion and belief” that there exists no dispute or issue respecting material facts. Plaintiff responded by filing an attorney’s affidavit, setting forth portions of the Paulson deposition, and an affidavit executed by plaintiff. The district court granted defendants’ motion, and entered an order for summary judgment. Plaintiff’s motion to vacate, supported by further affidavits, was subsequently denied.

The court granted defendants’ motion for summary judgment on three separate grounds:

(1) Plaintiff’s action was held to be barred by Wisconsin Statutes § 452.13, which prohibits the maintenance of any action in the courts of Wisconsin for the collection of a brokerage commission by any person acting in the capacity of a real estate broker within the State of Wisconsin, unless such person is a duly licensed real estate broker or salesman.
(2) The alleged oral agreement relating to the Sixth Street Property was held to be void, pursuant to Wisconsin Statutes § 240.10(2), which provides that a contract to pay a commission to a real estate broker for leasing real estate for a term exceeding three years shall be void unless such contract is in writing and describes the real estate, the rent to be paid, the length of the lease, the commission to be paid and the period during which the broker shall procure the tenant.
(3) Plaintiff’s claim was held to be barred by Wisconsin Statutes § 893.21(5) which provides that any action to recover salary, wages or other compensation for personal services, except fees for professional services, must be brought within two years of the completion of such services.

The court held that the aforementioned statutes were applicable to the instant case, that the plaintiff was not a duly licensed broker in the State of Wisconsin, that there existed no written agreement respecting the Sixth Street Property, and that plaintiff had last rendered services in connection with negotiating a lease for the Sixth Street Property more than two years prior to the commencement of this action.

I

§ 452.13

§ 452.13 provides as follows:

“No person engaged in the business or acting in the capacity of a real estate broker or salesman within this state shall bring or maintain an action in the courts of this state for the collection of a commission or compensation for the performance of any act men-» tioned in this chapter without alleging and proving that he was a duly licensed broker or salesman at the time the alleged cause of action arose.”

Plaintiff contends that the court below erred in applying § 452.13 in the instant case as a bar to the maintenance of this action because the record fails to disclose any instance in which plaintiff acted “in the capacity of a real estate broker” in Wisconsin. Alternatively, plaintiff argues that application of the statute to the facts appearing in this record would be violative of the Commerce Clause of the United States Constitution, since plaintiff has averred in his various affidavits that all meetings, discussions and negotiations between the plaintiff and The Downtowner Corporation occurred outside the State of Wisconsin. Since we find that the record before us does not present facts warranting application of § 452.13, we do not reach the issue regarding the statute’s constitutionality as applied to the facts contained in this record, or as applied to facts involving mere peripheral conduct which, although occurring in Wisconsin, is incidental to the actual negotiation of a lease.

The record does not demonstrate that plaintiff acted “in the capacity of a broker” within the State of Wisconsin, and in fact, contains affidavits of plaintiff stating that he engaged in no meetings, conversations, discussions or negotiations in Wisconsin with any representative of The Downtowner Corporation. At the very least, the record reflects a genuine issue of fact precluding summary judgment.

Defendants urge that because plaintiff met with Shapiro on several occasions and inspected the property in question, he acted in the capacity of a real estate broker in Wisconsin. They argue that plaintiff’s reports and conferences with Shapiro were actually part of the process of negotiating the lease.

To discern what conduct constitutes acting “in the capacity of a real estate broker”, we need look no further than the statute in question. § 452.01(2) defines a real estate broker as any person who:

“for another, and for commission, money or other thing of value, sells, exchanges, buys or rents, or offers or attempts to negotiate a sale, exchange, purchase or rental of an interest or estate in real estate.”

The record indicates that at all times during which plaintiff acted “for another” in an attempt to “negotiate a . rental of an interest . in real estate”, he was acting outside the State of Wisconsin. As defendants' agent he was not attempting “to negotiate” the lease when conferring with his alleged principal in Wisconsin. Negotiation of the lease occurred when plaintiff, acting for another (his principal), met and conferred with the prospective tenant, The Downtowner Corporation. As previously noted, plaintiff’s affidavits aver that all such negotiations occurred either in Illinois or in Tennessee.

Contrary to defendants’ contention, this court’s decision in Reed v. Kelly, 177 F.2d 473 (7th Cir. 1949) does not require a different result. In Reed, we affirmed the dismissal of the complaint on the ground that the plaintiff, who was not a licensed real estate broker in Wisconsin, was barred under Wisconsin law from maintaining an action for the collection of a commission allegedly earned when plaintiff procured a purchaser for defendant’s Wisconsin property. Unlike the instant case, no affidavits were filed averring the absence of negotiations with the prospective purchaser in Wisconsin; nor does the Reed decision indicate whether the purchaser was a Wisconsin resident.

In short, the plaintiff in Reed failed to establish that he had not acted in the capacity of a real estate broker within the State of Wisconsin. Here, plaintiff’s sworn statement that all negotiations with the lessee occurred in Illinois and Tennessee renders inoperative the statutory requirement that he allege and prove that he was a duly licensed broker in Wisconsin at the time the alleged cause of action arose.

Our decision in this regard is consistent with numerous decisions construing the applicability of statutes similar to § 452.13.

. In Re Stoddards Estate, 60 Wash.2d 263, 373 P.2d 116 (1962), involved factual circumstances analogous to those here presented. There, an Oregon broker sued for the collection of commissions allegedly earned in connection with the sale of property located in the forum state, Washington. Relying upon a Washington statute almost identical to § 452.13, the trial court granted summary judgment on the ground that plaintiff, who was not licensed as a real estate broker in Washington, was thereby precluded from maintaining an action for brokerage commissions.

The Supreme Court of Washington reversed, noting that although the plaintiff had conferred with his principal in Washington on three separate occasions,

“all of appellant’s negotiations with the Oregon purchaser occurred in that state, none in Washington although [appellant] did show the property to its Oregon customer before respondent agreed to pay it a commission.” 373 P.2d at 117.

Thus, despite the broker’s presence in Washington on various occasions, the statute was held inapplicable because all negotiations with the purchaser occurred in Oregon.

The Stoddard court relied heavily upon the Fifth Circuit Court of Appeals’ decision in Richland Development Co. v. Staples, 295 F.2d 122 (5th Cir. 1961). In Staples, a Missouri real estate broker brought suit in the United States District Court for the Northern District of Alabama for commissions earned in procuring a customer for property located in Alabama. The defendant attempted to defend on the basis of an Alabama statute which prohibited any person from acting as a real estate broker without first being duly licensed in that state, and which had been construed by the Alabama Supreme Court as barring recovery by anyone failing to comply with the licensing requirement. Knight v. Watson, 221 Ala. 69, 127 So. 841 (1930). Plaintiff did not hold an Alabama broker’s license.

Despite the fact that the broker had engaged in certain activities in Alabama, characterized by the Staples court as “collateral to the contract”, the statute was held inapplicable. Noting that both the formation of the contract and “major portions of its performance” had occurred outside Alabama, the court reasoned that:

“While the statute is applicable to certain acts performed by Staples, this transaction is not of the sort at which the statute is primarily directed; Under these circumstances the public policy argument thins into invisibility, and will not prevent enforcement of an otherwise valid contract.” 295 F.2d at 129.

Similarly, in C. B. Snyder Realty Co. v. Sherrill-Noonan, Inc., 261 F.2d 269 (3rd Cir. 1968) the court refused to apply a Pennsylvania statute which would otherwise have barred an action for recovery of commissions by one not licensed as a broker under Pennsylvania law. Finding that the plaintiff had act-' ed in the capacity of a broker only in New York and possibly New Jersey, the court held that if the plaintiff “did not perform any of its broker’s activity in Pennsylvania in connection with the transaction on which recovery is now sought, it did nothing prohibited by the Act.” 261 F.2d at 272.

More recently, the Third Circuit followed its decision in Snyder, refusing to bar an action brought by a New York broker for commissions earned through the sale of Pennsylvania real estate. Sun Sales Corporation v. Block Land, Inc., 456 F.2d 857 (3rd Cir. 1972).

Under similar circumstances, other courts have avoided enforcement of statutes similar to § 452.13 on the ground that choice-of-law considerations render the law of the forum state inapplicable; e. g., James v. Hiller, 85 Ariz. 40, 330 P.2d 999 (1958); Cochran v. Ellsworth, 126 Cal.App.2d 429, 272 P.2d 904 (1964). Since we find that the provisions of Wisconsin’s statute do not apply to the conduct reflected in this record, we need not 'determine whether the public policy considérations which prompted the enactment of § 452.13 would, given different circumstances, require its application.

We view as persuasive the decisions discussed herein, regarding both the purposes and the applicability of statutes such as § 452.13. The purchaser in this instance was not a resident of Wisconsin, nor were the negotiations comprising plaintiff’s activities as a broker conducted in Wisconsin. Whether the statute would be applicable if plaintiff had conducted most, but not all, negotiations with the lessee outside Wisconsin is not before this court, but we are impressed with the treatment afforded this question by Judge Wisdom in Richland Development Company v. Snyder, supra. In any event, we are satisfied that Paul-son did not act “in the capacity of a broker” in Wisconsin and that § 452.13 therefore does not bar the maintenance of this action.

II

§ 240.10(2)

§ 240.10(2) provides as follows:

“Every contract to pay a commission to any real estate agent or broker or to any person for leasing real estate for a term exceeding 3 years shall be void unless such contract, note or memorandum thereof describing such real estate, expressing the rent to be paid or a method to determine the same, the length of the lease, the commission to be paid, and the period during which said person shall procure a tenant, be in writing and be subscribed by the person agreeing to pay such commission.”

Whether § 240.10(2) is applicable in the instant case is basically a choice-of-law question. While it may be that, in the interest of advancing stated public policy, Wisconsin courts would enforce a Wisconsin regulatory statute such as § 542.13 in an appropriate case, such is not the case with respect to the Statute of Frauds, as codified under § 240.10(2). Unlike § 452.13, re-fleeting public policy of the forum state to regulate the licensing of real estate brokers through supplemental enforcement legislation, § 240.10(2) represents but a small portion of Wisconsin’s contract law and does not embrace any particular public policy considerations. This distinction is of no small import, since the district court sitting in Wisconsin must determine whether Wisconsin’s choice-of-law principles would preclude application of § 240.10(2) under the facts here presented.

Plaintiff and defendants agree that Wisconsin has embraced the “center-of-gravity” or “grouping-of-contacts” approach reflected in Section 188, Conflict of Laws, Second. Haines v. MidCentury Insurance Co., 47 Wis.2d 442, 177 N.W.2d 328 (1970).

In pertinent part, Section 188 of the Restatement provides:

“(1) • • •
(2) In the absence of an effective choice of law by the parties (see § 187), the contacts to be taken into account in applying the principles of Section 6 to determine the law applicable to an issue include:
(a) the place of contracting,
(b) the place of negotiation of the contract,
(c) the place of performance,
(d) the location of the subject matter of the contract, and
(e) the domicile, residence, nationality, place of incorporation and place of business of the parties.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.
(3) If the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied, except as otherwise provided in §§ 189-199 and 203.”

The oral authorization allegedly given plaintiff by Shapiro to negotiate a lease for the Sixth Street Property was apparently communicated to plaintiff in Wisconsin. However, this fact does not establish that Wisconsin was “the place of contracting.” As defendants correctly observe, the place of contracting is the place where the last act occurred giving the contract binding effect. The alleged contract called for plaintiff to negotiate a lease with a prospective tenant. The last act necessary to create a binding contract between the broker and his principal was the acquisition by plaintiff of a lessee ready, willing and able to lease the property under terms agreeable to the principal. This occurred in Tennessee. As the court correctly observed in Cochran v. Ellsworth, swpra,.

“Ordinarily the ‘last act essential to the validity’ of a brokerage contract is not the signing of authorization to act. The mere engagement of a broker to dispose of specified property does not create an enforceable contract, for the broker is not obligated to find a purchaser. An enforceable contract does not result until the broker finds one able and willing to buy the property at the authorized price.” 272 P.2d at 908. Accord, James v. Hiller, 85 Ariz. 40, 330 P.2d 999, 1002 (1958).

For like reasons, the place of performance of the alleged contract was also Tennessee. The performance contemplated was for plaintiff to act in the capacity of a broker in an effort to procure a lessee for the Sixth Street Property. As previously noted, plaintiff acted as a broker when he conducted negotiations with the prospective tenant in Tennessee. Under these circumstances, Wisconsin courts have held that the place of performance determines the applicable law. In Re Knippel’s Estate, 7 Wis.2d 335, 96 N.W.2d 514 (1959); Pat J. Murphy, Inc. v. Drumond Dolomite, Inc., 214 F.Supp. 496, 498 (E.D.Wis. 1963), aff’d 346 F.2d 382 (7th Cir. 1965).

Moreover, Subsection (3) of Section 188 indicates that where the place of negotiating a contract and the place of its performance are in the same state, the law of the forum will usually be applied except as otherwise provided in Sections 189-199 and 203. Since the state wherein this contract (between the broker and his principal) was negotiated and the state of its performance are not the same, application of Wisconsin’s statute is even less compelling, and the exceptions to its applicability reflected in Sections 189-199 and 203 assume added importance.

Of particular significance is Section 196 of the Restatement, relating to “contracts for the rendition of services.” Section 196 provides that:

The validity of a contract for the rendition of services and the rights created thereby are determined by the local law of the state where the contract requires that the services, or a major portion of the services, be rendered, unless . . . some other state has a more significant relationship under the principles stated in § 6.

We find nothing in the principles set forth in Section 6 which would lead to the conclusion that § 240.10(2) should be applied. On the contrary, the provisions in Section 6 would more appropriately suggest application of Tennessee law under the facts here presented.

Admittedly, Wisconsin is the state of defendants’ residence and the state wherein the property is situated. In addition, the alleged contract for plaintiff’s services appears to have been negotiated between the broker and his principal in that state. We find, however, that these factors, particularly in light of the provisions of Section 196 of the Restatement, are quite clearly outweighed by the fact that plaintiff’s services were rendered and the contract was performed in Tennessee.-

Finally, as reflected in the Comments which follow Section 188 of the Restatement, “protection of the justified interests of the parties is the basic policy underlying the field of contracts,” and these expectations should not be denied by application of local law, absent strong public policy considerations to the contrary. We do not view § 240.10(2) as embracing public policy considerations or matters of state interest such as might otherwise require application of Wisconsin law. For this reason and in light of the foregoing discussion regarding the principles set forth in Section 188 of the Restatement, we hold that Tennessee law should be applied to determine the validity of the alleged oral contract and that plaintiff's action is therefore not barred by § 240.10(2).

III

§ 893.21(5)

§ 893.21(5) provides that “any action to recover unpaid salary, wages or other compensation for personal services, except fees for professional services” must be brought within two years after the cause of action has accrued. Defendants argue that the last services performed by plaintiff occurred in March of 1968; that this action is not one for the collection of fees for professional services; that plaintiff’s complaint was filed in May of 1971, more than two years after the completion of his services; and that § 893.21(5) therefore bars this action.

Defendants’ argument centers principally on the contention that a suit for the collection of brokerage commissions is not an action to recover “fees for professional services.” The implication of this contention seems to be that plaintiff is necessarily asserting a claim to recover “compensation for personal services,” and that unless his services are deemed to be professional in nature, this action is barred by § 893.21(5). It is with this assumption that we disagree, and therefore find it unnecessary to engage in the semantical exercise of discerning whether a broker is a “professional” and whether brokerage commissions are “professional fees.”

The Supreme Court of Wisconsin has heretofore interpreted the meaning of “personal services,” as that term is used in § 893.21(5). In Estate of Javornik, 35 Wis.2d 741, 151 N.W.2d 721 (1967), that court stated:

“We think ‘personal services’ as used in sec. 893.21(5), Stats., means human labor such as is commonly rendered in return for a salary or a wage in the case of an employee and for ‘other compensation’ in the case of an independent contractor. . . . Such human labor must be in the nature of a service as distinguished from the end-product or the fruit of the service the distinguishing feature of personal services for the purpose of this section is whether the human labor itself is sought and is the object of the compensation or whether the end-product of the service is purchased.” (emphasis added) 151 N.W. 2d 725.

This language was subsequently quoted in full by the Supreme Court of Wisconsin in Younger v. Rosenow Paper & Supply Co., 51 Wis.2d 619, 188 N.W.2d 507, 510-511 (1971) and in Estate of Schroeder v. Gateway Transportation Co., 53 Wis.2d 59, 191 N.W.2d 860 (1971). The Younger court held that an employee’s claim for a bonus payable under a stock purchase plan was an action for breach of contract, not one to recover compensation for personal services, since the bonus was payable not for plaintiff’s human labor per se, but only in the event that his services produced the desired end-product, i. e., profit.

Similarly, in Schroeder, the court held that a claim for deferred compensation under defendant’s pension plan was not an action for' “personal services”, since the main benefits derived by defendant from the plan admittedly included those which accrue from employee retention, i. e., lower hiring and training costs and more efficient employee performance resulting from the use of experienced labor. This was the “end-product” for which deferred compensation was paid, and § 893.21(5) was therefore held inapplicable.

These cases leave no doubt that § 893.21(5) is to be narrowly construed, precluding its application in the instant case. Defendants assumed no obligation to compensate plaintiff for his efforts to procure a lessee, unless and until he had successfully done so. Thus, plaintiff does not seek compensation for “human labor,” but rather for the “end-product” of his services, i. e., the procurement of a lessee ready, willing and able to lease the Sixth Street Property. Under these circumstances, plaintiff’s claim is not one for “personal services” and is not barred by § 893.21(5).

For these reasons the judgment before us must be reversed and the cause remanded to the district court for trial on the merits.

Reversed and remanded.

      . It is also noteworthy that Section 141 of the Restatement specifically provides that “Whether a contract must be in writing . . . is determined by the law selected by application of the rules of §§ 187-188.”

      . Section 6 of the Restatement sets forth general choice-of-law principles and provides as follows:
      (1) The court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
      (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include:
      (a) the needs of the interstate and international systems,
      (b) the relevant policies of the forum,
      (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
      (d) the protection of justified expectations,
      (e) the basic policies underline the particular field of law,
      (f) certainty, predictability and uniformity of result, and
      (g) ease in the determination and application of the law to be applied.”

      . Tennessee Code Annotated § 23-201(4), provides that “any contract for the sale of lands . . . , or the making of any lease thereof for a longer term than one year; . . . ” must be in writing. In the past 100 years, only two Tennessee decisions have considered whether this statute requires that the contract between a real estate agent and his principal be in writing. Cobble v. Langford, 190 Tenn. 385, 230 S.W.2d 194 (1950) ; Lowe v. Wright, 40 Tenn.App. 525, 292 S.W.2d 413 (1956). Each considered the validity of a real estate contract executed by the seller’s agent, in the absence of a written agency contract, and both cases held that § 23-201(4) does not require that the agent’s authority be in writing. Although neither case specifically addressed the issue, it would thus appear by implication that the Tennessee Statute of Frauds does not require that the contract between a real estate agent and his principal be written in order for the agent to maintain an action to collect commissions. Since this question is not squarely before this Court, however, we leave a determination of the applicable Tennessee law to the district court, where the issue, if contested on remand, can be more thoroughly considered with the benefit and assistance of briefs.


author: COFFIN, Chief Judge.

text:
    ASSOCIATED GENERAL CONTRACTORS OF MASSACHUSETTS, INC., et al., Plaintiffs-Appellants. v. Alan ALTSHULER et al., Defendants-Appellees.
    No. 73-1250.
    United States Court of Appeals, First Circuit.
    Heard Oct. 2, 1973.
    Decided Nov. 30, 1973.
    Certiorari Denied April 22, 1974.
    See 94 S.Ct. 1971.

      James J. O’Leary, Boston, Mass., with whom Joseph P. Rooney, Ansel B. Chaplin, Gaston, Snow, Motley & Holt, Boston, Mass., and James E. Flynn, Jr., Cambridge, Mass., were on brief, for plaintiff s-appellants.
    Dennis L. Ditelberg, Asst. Atty. Gen., and Gershon M. Ratner, Boston, Mass., with whom Robert H. Quinn, Atty. Gen., John F. Houton, Asst. Atty. Gen., Michael J. Hoare, Sp. Asst. Atty. Gen., Benjamin Jones, and Robert City, Boston, Mass., were on brief, for defendants-appellees.
    Robert T. Moore, Atty., Dept, of Justice, with whom William J. Kilberg, Sol. of Labor, J. Stanley Pottinger, Asst. Atty. Gen., James N. Gabriel, U. S. Atty., and David L. Rose, Atty., Dept, of Justice, were on brief, for The Secretary of Labor of The United States, amicus curiae.
    Jerry Cohen, Morris Shubow, John Henn, John Reinstein, Matthew Fein-berg, Charles A. Levin, Mark A. Michelson, and Stephen R. Moore on brief for Civil Liberties Union and American Jewish Congress, New England Region, amici curiae.
    Before COFFIN, Chief Judge, MOORE and McENTEE, Circuit Judges.

       Of the Second Circuit, sitting by designation.

   COFFIN, Chief Judge.

This is an appeal from a judgment sustaining, as constitutional and in accord with state law, certain contract requirements imposed by the Commonwealth of Massachusetts upon contractors engaged in publicly funded construction work at Boston State College. Appellants are thirteen individual construction companies, now engaged in construction of public buildings for the Commonwealth, and a membership corporation comprised of one hundred forty-five general contracting firms which together perform approximately eighty per cent of all construction in the Commonwealth. Each of the appellants was a prospective bidder for the Boston State College contract.

In relevant part, § IB of the contract requires that the contractor

“. . . maintain on his project, which is located in an area in which thére are high concentrations of minority group persons, a not less than twenty percent ratio of minority employee man hours to total employee man hours in each job category ft

Section V, ¶ 3, of the contract provides, however, that the contractor must hire only “competent” workers. The Secretary of Transportation and Construction for the Commonwealth, who is charged with enforcing the contract provisions, interprets this to mean that § IB requires the hiring of only “qualified” workers. The district court has interpreted the contract in the same way.

The contract also requires that the contractor engage in special referral procedures as well as traditional referral methods, cooperate with a Liaison Committee composed of various representatives from community groups, make weekly compliance reports to the Liaison Committee and the Massachusetts Commission Against Discrimination (M.C. A.D.), and permit the M.C.A.D. access to books, records, and accounts containing employment information.

The contract further stipulates that the M.C.A.D. will investigate any alleged non-compliance with the contract terms and notify the contractor of both its findings and recommendations as to how he might comply with the terms. If the contractor fails to accept the recommendations and in addition the M.C.A.D. determines that the contractor has not taken “every possible measure to achieve compliance”, the M.C.A.D. will report its findings to the Bureau of Construction and recommend that specific sanctions be imposed. Before imposing any sanctions, however, pursuant to the Commonwealth’s Administrative Procedures Act, M.G.L.A. c. 30A §§ 10, 11, and according to the Secretary of Transportation and Construction, the Bureau will provide the contractor with notice of the findings and a hearing in which he may challenge them.

Because the federal government pays a portion of the construction costs of the Boston State project, contractors are also required to accept federal bid conditions, promulgated by the United States Secretary of Labor pursuant to § 201 of Executive Order No. 11246 (30 F.R. 12319, as amended, 32 F.R. 14303; 34 F.R. 12985) and 41 C.F.R. 60. The specific contractual elements of the federal bid conditions are derived from the Boston Area Construction Program (the Boston Plan), a “hometown” equal employment opportunity plan prepared by the local construction industry in cooperation with the Department of Labor. Unlike the Commonwealth’s § IB, the federal Boston Plan sets area-wide percentage objectives for minority hiring within each trade, rather than percentage goals for each project. Under the Boston Plan the responsibility for fulfilling the objectives does not lie with the individual contractor; he merely agrees to hire whatever minority workers are referred to him by the trades unions in the course of the plan’s operation. Moreover, while § IB requires that contractors take “every possible measure” to comply with the contract terms, the Boston Plan necessitates merely a “good faith” effort by the contractor. A fourth point of difference between the two plans is that the Boston Plan places the burden of proving noncompliance upon the government agency, while § IB places the burden of proving compliance, once non-compliance has been alleged, upon the contractor himself.

Appellants challenge the constitutionality of § IB of the contract requirements imposed by the Commonwealth on three grounds: They contend, first, that' § IB varies so significantly from the federal bid conditions of the Boston Plan that it violates the Supremacy Clause of Article VI; second, that § IB imposes a fixed racial hiring quota which violates the Equal Protection clause of the Fourteenth Amendment; and finally, that § IB permits the imposition of sanctions without proper notice or an opportunity to be heard, in violation of the Due Process clause of the Fourteenth Amendment. Appellants also contend, pursuant to the pendent jurisdiction of this court, that § IB involves the M.C.A.D. in activities which go beyond the scope of its enabling legislation.

I

In order to deal with appellants’ first contention, that § IB violates the Supremacy Clause because the federal Boston Plan must necessarily preempt § IB, it is necessary to set out the context in which this case arises.

We note at the outset that the construction industry has been particularly slow, throughout the nation, to open itself to racial minorities. For this reason, in 1967 the federal government launched pilot plans in several cities designed to increase minority employment on federally funded construction projects by way of “affirmative action” programs. Executive Order 11246, under which the Secretary of Labor was authorized to promulgate such programs, required that contractors “take affirmative action to ensure that applicants are employed . . . without regard to race . . . . ” Affirmative action itself was defined as “specific steps to guarantee equal employment opportunity keyed to the problems and needs of members of minority groups, including, when there are deficiencies, the development of specific goals and time tables ”

After several different affirmative action programs had been implemented, with varying degrees of success, in 1970 the government permitted particular communities to develop their own “hometown” affirmative action programs. If the Secretary of Labor approved the plans, the plans would receive federal funding, and local contractors who complied with them would thereby comply with the mandate of Executive Order 11246.

The Boston Plan emerged from negotiations between representatives . of buildings trades unions, contractors, and minority communities in the Boston area, and was approved by the Secretary of Labor in the fall of 1970. Although it fulfilled its first year goal of training and placing three hundred sixty minority workers, relationships with the minority community representatives deteriorated to the extent that the Department of Labor withheld second year funding until a revised plan could be negotiated. The new plan, beginning operations in January, 1972, did not have the participation of representatives of Boston’s minority communities. In addition, although put into effect two years after the original Boston Plan had commenced, the revised plan retained the same minority employment goal as that of the original plan.

At about the same time as the revised Boston Plan was put into effect, the Commonwealth began an inquiry of its own into the need for a separate state affirmative action program. The inquiry revealed that despite the existence of the federal Boston Plan, minority membership in all of the nineteen participating unions amounted to less than four per cent of union membership, while minorities comprised approximately twenty-three per cent of the population of Boston. Since virtually all of the contractors who engage in state funded projects rely upon these predominantly white unions for workers, minority employment in the construction trades continued to be extremely low. The Commonwealth also determined that the Boston Plan had no provision for the collection of reliable data on the actual number of hours worked by minority workers placed on construction jobs. Finally, in the opinion of the Commonwealth’s Office of Transportation and Construction, the Boston Plan lacked adequate enforcement machinery. On the basis of these findings the Commonwealth concluded that the federal Boston Plan had not gone far enough, and that a separate, state affirmative action program was required for construction projects in which state funds were committed.

The contract for the construction of Boston State College is the first to incorporate both the Commonwealth’s own § IB bid conditions, promulgated under authority of the Governor’s Executive Order No. 74, and the federal Boston Plan bid conditions. The Assistant Secretary of Transportation and Construction for the Commonwealth has determined that there exist adequate journeymen, apprentices, and trainees within Boston’s minority community to provide at least twenty per cent of the work force for the project, as well as for other projects anticipated in the area. It is estimated that the total work force required for the Boston State Project will vary between forty-seven and one hundred fifty persons; contractors on the project must therefore take “every possible measure” to employ between ten and thirty qualified minority workers.

Appellants contend that because the Commonwealth’s § IB affirmative action program places different requirements upon contractors than those of the Boston Plan, the two are in conflict, and that the state plan must therefore be declared invalid. Appellants point out, most particularly, that under § IB, contractors must bear the burden of showing that they have taken “every possible measure” to comply, whereas under the Boston Plan, they must have made merely a “good faith effort” and the burden of showing non-compliance rests with the government agency. They also stress that the record keeping and referral requirements of § IB are more onerous than those of the Boston Plan.

In deciding whether state regulations should be invalidated because they conflict with federal law, courts have tended to examine both the possibility of broad conflict in “purposes and objectives” between the two schemes, Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1940), and the likelihood of specific conflict in the implementation of the two programs.

Clearly, the broad purposes which lay behind the federal Boston Plan and the Commonwealth’s § IB are congruent. Affirmative action, defined in the President’s Executive Order as “ . steps to guarantee equal employment . including . . . the development of specific goals and time tables . ” has the same meaning as affirmative action as defined in the Governor’s Executive Order: “ . . . positive and aggressive measures to insure equal opportunity.” Both plans envisage minority hiring goals as a means of achieving equal opportunity.

Nothing in the President’s Executive Order requires that affirmative action taken under the Order be uniform throughout the country, nor does it necessitate that the federal government be the source for every program. An important aspect of federal implementation is the development of “hometown” plans, conceived and developed by local contractors, unions, and minority representatives. And in at least one instance the federal government has relied upon a plan originally conceived by state officials for their own state funded contracts. See Illinois Builders Ass’n v. Ogilvie, 327 F.Supp. 1154 (S.D. Ill. 1971) , aff’d, 471 F.2d 680 (7th Cir. 1972) .

Nor is there any indication that the federal government has intended to preempt this field. Federal preemption should not be presumed, absent “a clear manifestation of intention” to preempt the field. Schwartz v. Texas, 344 U.S. 199, 202-203, 73 S.Ct. 232, 97 L.Ed. 231 (1952); see also New York State Department of Social Service v. Dublino, 405 U.S. 413, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973). The President’s Executive Order merely requires that contractors take some “affirmative action” and directs the Secretary of Labor to “use his best efforts” through “state and local agencies” as well as federal agencies. The Secretary of Labor has stated, as amicus curiae, that the federal program is not meant to preempt state programs such as the Commonwealth’s § IB. And congressional policy in this area, as expressed in Title VII of the Civil Rights Act of 1964, the statute most closely analogous to the President’s Executive Order, is clearly one of encouraging state cooperation and initiative in remedying racial discrimination. Title VII, 42 U.S.C. § 2000h-4 expressly disclaims any intent to preempt state action. See also Voutsis v. Union Carbide, 452 F.2d 889 (2d Cir. 1971), cert, denied, 406 U. S. 918, 92 S.Ct. 1768, 32 L.Ed.2d 117 (1971).

Even if there is no conflict between the purposes and objectives of the two schemes, the state plan might still be invalid if there is a showing of “such actual conflict between the two schemes of regulation that both cannot stand in the same area . . . .” Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963); see also Perez v. Campbell, 402 U.S. 637, 649-653, 91 S. Ct. 1704, 29 L.Ed.2d 233 (1971). While we acknowledge that § IB may be more demanding than the Boston Plan, and may well involve higher administrative costs, there is no reason to suppose that contractors could not comply with both at the same time. By complying with § IB’s minority hiring goals on projects funded by both the state and the federal government, contractors would also comply with the Boston Plan’s goals. The reporting requirements are different for the two plans, but this merely necessitates the filing of two different sets of reports.

The only place where the two plans might be found slightly incompatible is in the area of trade union referrals. Recognizing that union reluctance to admit minorities to apprenticeship programs has been one primary reason for the small percentage of minorities in the construction trades, the Boston Plan focusses upon encouraging areawide minority recruitment into the unions, and therefore does not alter the patterns of contractor reliance upon the unions for referrals. The Commonwealth’s § IB, however, facilitates referrals from sources other than the unions by providing alternative mechanisms for recruiting minority workers.

We think, however, that there is little likelihood that § IB would discourage union initiative in training and recruiting minorities. The Commonwealth’s program will operate on a small scale, only within neighborhoods with a high minority population; the contractors for the Boston College project are required to employ approximately thirty minority workers. The federal Boston Plan is designed to train and place three hundred sixty minority workers each year drawn from all over the state. Therefore, despite the Commonwealth’s program, buildings trades unions will be obligated to continue their efforts at recruiting minority workers and referring them to contractors. Furthermore, the Commonwealth’s program does not prohibit union referrals. It merely provides other sources for referrals. Thus, § IB might actually induce a stepped-up program of union recruitment if the unions are desirous of maintaining contractor reliance upon union referrals.

We conclude, therefore, that § IB presents no challenge to the Supremacy Clause.

II

Appellant’s second contention, that the Commonwealth’s § IB imposes a fixed racial hiring quota which violates the Equal Protection clause of the Fourteenth Amendment, presents a more difficult issue, the implications of which stretch far beyond this particular dispute.

The first Justice Harlan’s much quoted observation that “the Constitution [is colorblind] . . . [and] does not . permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights”, Plessy v. Ferguson, 163 U.S. 537, 554, 16 S.Ct. 1138, 1145, 41 L.Ed. 256 (1896) (dissenting opinion) has come to represent a long-term goal. It is by now well understood, however, that our society cannot be completely colorblind in the short term if we are to have a colorblind society in the long term. After centuries of viewing through colored lenses, eyes do not quickly adjust when the lenses are removed. Discrimination has a way of perpetuating itself, albeit unintentionally, because the resulting inequalities make new opportunities less accessible. Preferential treatment is one partial prescription to remedy our society’s most intransigent and deeply rooted inequalities.

Intentional, official recognition of race has been found necessary to achieve fair and equal opportunity in the selection of grand juries, Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966); tenants for public housing, Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir. 1973); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968); Gautreaux v. Chicago Housing Authority, 304 F. Supp. 736 (N.D. Ill. 1969); school administrators, Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970); and children who are to attend a specific public school, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).

The intentional, official recognition of race in the selection of union members or construction workers has been constitutionally tested and upheld' in two contexts. The first is where courts have ordered, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g), remedial action for past discrimination. In fulfilling their “duty to render a decree which will so far as possible eliminate the discriminatory effects of the past . . . ”, Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965), courts have ordered unions to grant immediate membership to a number of minority applicants, United States v. Wood, Wire, and Metal Lathers International Union, Local No. 46, 471 F.2d 408 (2d Cir. 1973), cert, denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973); to begin an affirmative minority recruitment program, United States v. Sheet Metal Workers International Ass’n, Local No. 36, 416 F.2d 123 (8th Cir. 1969); to match normal referrals with minority referrals until a specific objective has been obtained, Heat and Frost Workers, Local 53 v. Vogler, 407 F.2d 1047 (5th Cir. 1969); or to take on a certain number of minority apprentices for each class of workers, United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir. 1971), cert, denied, 404 U. S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971). Courts have also ordered employers to hire minority employees up to thirty per cent of the total work force, Stamps v. Detroit Edison, 365 F.Supp. 87 (E.D. Mich. 1973); to hire one minority worker every time two white workers were hired, up to a certain number, Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert, denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972); and in our own Castro v. Beecher, 459 F.2d 725 (1972), we order that black and Spanish-speaking applicants for police positions, who had failed to measure up to a constitutionally impermissible set of hiring standards, be given priority in future hiring.

The second context in which race has been recognized as a permissible criterion for employment is where courts have upheld federal affirmative action programs against challenges under the Equal Protection clause or under the anti-preference provisions of Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e-2(j). Recognizing that the discretionary power of public authorities to remedy past discrimination is even broader than that of the judicial branch, see Swann v. Charlotte-Mecklenburg, supra at 16 of 402 U.S., 91 S.Ct. 1267; cf. Katzenbach v. Morgan, 384 U.S. 641, 653, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), courts have upheld the specific percentage goals and time tables for minority hiring found in the Philadelphia Plan, Contractors Ass’n of Eastern Pennsylvania v. Secretary of Labor, 311 F.Supp. 1002 (E.D. Pa. 1970), aff’d, 442 F.2d 159 (3d Cir. 1971), cert, denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971), the Cleveland Plan, Weiner v. Cuyahoga Community College District, 19 Ohio St.2d 35, 249 N.E.2d 907, 908 (1969) , cert, denied, 396 U.S. 1004 (1970) , the Newark Plan, Joyce v. MeCrane, 320 F.Supp. 1284 (D. N.J. 1970), and the Illinois Ogilvie Plan, Southern Illinois Builders Ass’n v. Ogilvie, 327 F. Supp. 1154 (S.D. Ill. 1971), aff’d, 471 F.2d 680 (7th Cir. 1972).

Despite ample precedent for using race as a criterion of selection where the goal is equal opportunity, we approach its use in the present case with care. This marks the first time, to our knowledge, that a court has been asked to sanction a plan for hiring a specific percentage of minority workers that requires an employer to take “every possible measure” to reach the goal on each job site, and places upon him the burden of proving compliance, under threat of serious penalties if that burden is not sustained. It is but a short step from these requirements to a demand that an employer give an absolute percentage preference to members of a racial minority, regardless of their qualifications and without consideration for their availability within the general population. The Commonwealth’s affirmative action plan forces us to address a fundamental question: are there constitutional limits to the means by which racial criteria may be used to remedy the present effects of past discrimination and achieve equal opportunity in the future?

There are good reasons why the use of racial criteria should be strictly scrutinized and given legal sanction only where a compelling need for remedial action can be shown. Norwalk CORE v. Norwalk Redevelopment Agency, 395 F. 2d 920, 931-932 (2d Cir. 1969). Government recognition and sanction of racial classifications may be inherently divisive, reinforcing prejudices, confirming perceived differences between the races, and weakening the government’s educative role on behalf of equality and neutrality. It may also have unexpected results, such as the development of indicia for placing individuals into different racial categories. Once racial classifications are imbedded in the law, their purpose may become perverted: a benign preference under certain conditions may shade into a malignant preference at other times. Moreover, a racial preference for members of one minority might result in discrimination against another minority, a higher proportion of whose members had previously enjoyed access to a certain opportunity.

In the present instance, there is no question that a compelling need exists to remedy serious racial imbalance in the construction trades, particularly in Rox-bury, Dorchester, and South End, where minorities constitute approximately forty per cent of the population, and yet only about four per cent of the membership of buildings trades unions, and where there has been a long history of racial discimination in those unions. Such an imbalance within the relatively lucrative, highly visible, and expanding construction trades undermines efforts at achieving equal opportunity elsewhere in the economy, and contributes to racial tensions.

Even where a long history of discrimination and continuing racial imbalance compels the remedial use of ¡racial criteria, however, the means chosen to implement the compelling interest should be reasonably related to the desired end. See Contractors Ass’n of Eastern Pennsylvania v. Secretary of Labor, supra, 311 F.Supp. at 1011; cf. McLaughlin v. Florida, 379 U.S. 184, 193, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). A program which included unrealistic minority hiring goals might impose an unreasonable burden on the employer and upon qualified workers who were denied jobs because they were not members of the racial minority. Unrealistically high goals are likely, in addition, to forment racial tensions and to prompt employers to circumvent the rules.

A program of affirmative action might be considered to impose unrealistic and unreasonable hiring goals if it included a racial preference that could not be fulfilled, or could be fulfilled only by taking on workers who were unqualified for the trainee, apprentice; or journeyman status for which they were hired. Equal opportunity is an elusive concept, but at its core it carries the simple mandate that opportunities should be open to all on the basis of competence alone. Thus, it would be consistent with the goal of equal opportunity to give first priority to members of a minority that had previously been denied equal opportunity, if those members were otherwise as qualified as were qualified members of the majority population. In order that this special treatment be meaningful, of course, there should be equal opportunity to gain the training necessary to qualify.

While § IB says nothing about hiring “qualified” minority workers, § V, ¶ 3 of the same contract requires that the contractor hire only “competent” workers. The district court has interpreted § IB in light of § V, U 3, to require that the twenty per cent minority employees of § IB be “qualified” for the status to which they were assigned. The Commonwealth’s Secretary of Transportation and Construction, who is charged with implementing these provisions, has interpreted § IB in the same way.

Appellants maintain, however, that the goal of twenty per cent minority workers on each construction site, combined with the contractor’s burden of proving that he has taken “every possible measure to achieve compliance” with the goal, will necessarily move the contractor to hire unqualified minority workers, rather than run the risk of incurring sanctions. While we think that this is an unwarranted concern, given that the Boston State College project will require approximately thirty minority workers, we concede that, in principle, a high percentage goal for minority hiring combined with a high burden of proving compliance might create the likelihood that unqualified workers would be hired.

Despite the fact that the Secretary of Transportation and Construction alleges that the twenty per cent goal was based upon an assessment of current availability of minority journeymen, apprentices, and trainees, courts are ill equipped to judge the accuracy of such assessments. It becomes important, therefore, that affirmative action plans, such as the Commonwealth’s § IB, contain fair procedures for contractors to make a showing that insufficient qualified minority workers are available. Thus, any reasonable program designed to remedy racial imbalance must incorporate the necessary elements of due process. So long as contractors receive notice and a meaningful opportunity to challenge any allegations of non-compliance and prove that they have taken whatever efforts are required of them to comply, it is less important that a particular percentage goal might be Slightly optimistic or unrealistic, given current availability of qualified minority workers.

Appellants’ contention that § IB violates the Equal Protection clause is therefore intimately tied to their contention that § IB, in violation of thp Due Process clause, permits the imposition of sanctions without proper notice or an opportunity to be heard, an issue to which we now turn.

Ill

Appellants’ due process claim concerns § IB.2 of the contract provisions, which sanctions listed below .... [T]he Commission (M.C.A.D.) shall make a final report of non-compliance, and recommend to the Bureau [of Construction] the imposition of one or more of the sanctions listed below .... [T]he Bureau shall impose one or more of the following sanctions, as it may deem appropriate . . . . ”

The M.C.A.D.’s determination of noncompliance is made ex parte. Contractors are notified of the findings and given an opportunity to take specific steps which would, in the opinion of the M.C.A.D., bring them into compliance, but contractors are not permitted to challenge the findings of non-compliance at this juncture.

The Bureau of Construction is required, pursuant to the Commonwealth’s Administrative Procedure Act, M.G.L.A. c. 30A §§ 10, 11, to hold a hearing before any penalties may be imposed on the contractors for non-compliance. What is in dispute is the scope of this hearing. Appellants maintain that § IB.2 allows, at most, a challenge to the particular sanction which the M.C.A.D. has recommended, in favor of what might be contended to be a more appropriate sanction, but not a challenge to the truth of the M.C.A.D.’s basic findings of non-compliance. If appellants’ interpretation of § 1B.2 were correct, their due process claim would have some merit because contractors would be subject to serious penalties, such as debarment from participation in state contracts for three years, without having had an opportunity to contest the findings on which the imposition of the penalty was based. See Boddie v. Connecticut, 401 U.S. 371, 377-379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); cf. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L. Ed.2d 556 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).

We do not think, however, that § IB .2 must necessarily be interpreted to require such a narrowing of the scope of the administrative hearing. The contract states that the Bureau “shall impose” one of the sanctions only “as it may deem appropriate to attain full and effective enforcement.” It would seem perfectly consistent with this mandate for the Bureau to determine for itself that the contractor had in fact taken “every possible measure” to achieve compliance, despite the findings of the M. C.A.D. to the contrary, and that any sanction would be inappropriate. The presumption of constitutionality customarily accorded state statutes, e. g., United States v. Carolene Products, 304 U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), would dictate that we apply this interpretation. The Supreme Judicial Court of Massachusetts has, moreover, construed certain other Commonwealth statutes, facially lacking express provisions for notice and hearing, as impliedly calling for such due process requirements. See Rohrer, Petitioner, 353 Mass. 282, 230 N.E.2d 915 (1967); O’Leary, Petitioner, 325 Mass. 179, 89 N. E.2d 769 (1950).

The Commonwealth’s Secretary of Transportation and Construction has given the foregoing interpretation to § IB .2, and has stipulated that no sanctions may be imposed against a contractor until he has had a full hearing before officials of the Bureau of Construction in which he may challenge any findings of non-compliance by the M.C. A.D. Since the Secretary is entrusted with interpretation and implementation of the contract privisions, his view is at least entitled to “respectful consideration”, Fox v. Standard Oil Co., 294 U.S. 87, 96, 55 S.Ct. 333, 79 L.Ed. 780 (1935). We see no reason not to accept his interpretation in this case, Law Students Research Council v. Wadmond, 401 U.S. 154, 162, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971), and indeed condition our holding on the consistent application of this interpretation. We conclude, therefore, that § IB so construed does not violate the Due Process clause of the Fourteenth Amendment.

Since contractors are provided with notice and a full opportunity to contest allegations of non-compliance, they may thereby show that insufficient qualified minority workers were available. Therefore, in light of our preceding analysis, we find that § IB does not violate the Equal Protection clause of the Fourteenth Amendment.

IV

Appellants’ final contention, which comes within the compass of our pendent jurisdiction, is that the Commonwealth’s § IB program involves the M.C.A.D. in activities that are prohibited by the anti-preference clause of M.G. L. A. c. 151B, § 4. This clause provides, in relevant part that “ . . . nothing contained in this chapter or in any rule or regulation issued by the Commission [M.C.A.D.] shall be interpreted as requiring any employer, employment agency or labor organization to grant preferential treatment to any individual or to any group because of the race . of such individual or group . . . . ”

The anti-preference clause has not been interpreted by Massachusetts courts. The district court determined, however, that the statute is inapplicable to activities of the M.C.A.D. carried on pursuant to § IB for two reasons. The first is that the anti-preference clause applies only to regulations issued by the M. C.A.D., while under § IB the M.C.A. D. merely investigates and makes recommendations under regulations promulgated by the Secretary of Transportation and Construction. The second rea-' son is that, contrary to the assertions of appellants, the clause applies only to authority vested in the statute itself, while the authority for § IB stems from the Governor’s Executive Order No. 74 and from M.G.L.A. c. 6A § 24 and c. 149 § 44A, both of which provide for the acceptance or the rejection of bids. We agree ijvith this analysis.

In addition, we would point to the way in which federal courts have dealt with the anti-preference provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(j), which is analogous to the Commonwealth’s anti-preference clause. In United States v. I.B.E.W. Local 38, 428 F.2d 144 (6th Cir. 1970), cert, denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970), the court construed that provision to mean that an employer was not required to grant preferential treatment to minorities merely because of racial imbalance on his work force, but that some preference might be required to remedy the present effects of past discrimination. “Any other interpretation would allow complete nullification of the stated purpose of the Civil Rights Act of 1964”. Id. at 149-150. See also Carter v. Gallagher, supra.

It is undisputed that past racial discrimination in Boston’s construction trades is in large part responsible for the present racial imbalance. Given this fact, we find it difficult to conceive that Massachusetts would interpret its own anti-preference provision in such a way as to prohibit programs designed to remedy that imbalance.

We conclude, therefore, that the Commonwealth’s § IB is violative of neither state law nor the federal Constitution.

Affirmed.

      . See Marshall, The Negro and Organized Labor, 118-28 (1965) ; Hill, The Racial Practices of Organized Labor: The Contemporary Record, in The Negro and the American Labor Movement 313-314 (J. Jacobson, ed., 1968).
      As of May 19, 1970, only 11.8% of the 1.1 million members of the construction unions in America were members of racial minorities. The higher the skilled union, the smaller the percentage of minority workers becomes : 38.3% of construction laborers are members of racial minorities, while 5.1% of electrical workers, and 2.1% of plumbers. Equal Employment Opportunity Commission Release No. 70-15 (May 19, 1970).

      . 30 Fed.Reg. 12319, as amended 32 Fed.Reg. 14303.

      . Under the Secretary of Labor’s regulations, the Director of the Office of Contract Compliance (O.F.C.C.) has full authority to implement the policies of the Secretary. Thus, the position of the O.F.C.C. is analogous to that of the Commonwealth’s Bureau of Construction.

      . 41 C.F.R. § 60.-1.40(a) (Supp.1970).

      . Plans have been promulgated for Philadelphia, Washington, D.C., St. Louis, Atlanta, and Camden, N.J. See 41 C.F.R. 60.5, 60.6, 60.8, and 38 F.R. 21533 (Aug. 10, 1973). Such “imposed” plans operate only on the contractors; they do not require, and typically do not have, the cooperation of the unions involved.

      . There are now approximately forty-seven hometown plans finally approved by the O. F.C.C., including approximately twenty-nine federally funded training programs. '

      . The O.F.C.C. determines the adequacy *6f the hometown plan by considering such factors as (1) the minority population of the area to be covered by the plan; (2) the minority manpower utilization in the industry (on a trade by trade basis) ; (3) the availability of minorities for employment; (4) the need and availability of training programs; and (5) the projected growth and attrition factors of the area industry in the near future.

      . For any trades or contractors not participating in the hometown plan, Part II of the federal bid conditions sets forth mandatory affirmative action requirements for each individual contractor, generally paralleling those of the hometown plan. The principal distinction with respect to Parts I and II of the bid conditions is that the obligations under Part II are individual obligations that run to a contractor’s own work forces, with each contractor responsible for its own training program. Under Part I (the hometown plan), the minority hiring goals are obligations of the trade, and it is the administrative committee of the hometown plan that assigns fair share goals to the individual contractors.

      . The United States Department of Labor is now funding a subcontract with the Recruiting and Training Program (formerly the Workers Defense League), a minority organization which is providing recruiting, training, and referrals for the Boston Plan.

      . The Commonwealth was also of the view that it is desirable to concentrate minority employment in the trade in projects in or near minority neighborhoods. Thus, the Commonwealth contends that its plan is not designed simply for the purpose of increasing minority employment but also for altering the geographic distribution of placements.

      . The district court found that the minority populations of neighborhoods in which the Commonwealth’s plan is to be applied is approximately 40%.

      . See Employment and Manpower Problems in the Cities: Implications of the Report of the National Advisory Commission on Civil Disorders, Hearing Before the Joint Economic Comm., 90th Cong., 2d Sess. at p. 38 (1968).

      . See Kaplan, Equal Justice in an Unequal World: Equality for the Negro — The Problem of Special Treatment, 61 Nw.U.L.Rev. 363 (1966).

      . For example, a preference for induction into the armed services might appear to some to be a positive opportunity for training and steady work, yet might also appear at other times or to other people to be a somewhat negative opportunity.

      . Based upon information revealed in the depositions of several union officials, and other statistical information such as the “Equal- Employment Opportunity Local Union Reports”, the district court concluded that racial imbalance does exist in the Boston construction trades and such imbalance is the result of past discriminatory practices on the part of many “entities” in that industry. Such inferences from statistical showings of racial imbalance are permitted. See, e. g., Carter v. Gallagher, 452 F.2d 315, 323 (8th Cir. 1971) ; Parkham v. Southwestern Bell Telephone, 433 F.2d 421, 426 (8th Cir. 1970) ; Jones v. Lee Way Motor Freight, 431 F.2d 245, 247 (10th Cir. 1970).

      . If, at some future time, racial balance were to be achieved in Boston’s construction trades, we assume that there would no longer exist a compelling need for remedial action, and the use of such racial criteria would no longer be warranted.

      . Thus, presumably, to be “qualified” for a training program would require less competence than to be “qualified” for apprenticeship or journeyman status.