author: STEPHENSON, Circuit Judge.

text:
    UNITED STATES of America ex rel. Tilden Louis CONDON, Appellee, v. Don R. ERICKSON, Warden of the South Dakota State Penitentiary, Appellant.
    No. 72-1529.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 11, 1973.
    Decided April 25, 1973.
    Rehearing and Rehearing En Banc Denied May 29, 1973.
    Thomas R. Vickerman, Asst. Atty. Gen., Pierre, S. D., and Andrew Aberle, Timber Lake, S. D., for appellant.
    Richard A. Smith, Rosebud, S. D., for amicus.
    John Simko, Sioux Falls, S. D., for ap-pellee.
    Before LAY, HEANEY and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

This appeal presents the question of whether Eagle Butte, South Dakota is located within the boundaries of the Cheyenne River Indian Reservation. If it is, then South Dakota had no jurisdiction to charge and convict appellee Con-don, an enrolled member of the Cheyenne Indian Tribe, for the rape of a 70 year old librarian at Eagle Butte. Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962) and City of New Town, North Dakota v. United States, 454 F.2d 121 (CA8 1972).

18 U.S.C. § 1153 provides, among other offenses, that an Indian who commits rape against another Indian or other person within the “Indian Country” shall be subject to punishment within the exclusive jurisdiction of the United States. Indian Country, defined in 18 U.S.C. § 1151, means “ . . . all land within the limits of any Indian reservation under the jurisdiction of the United States government . . . ” *3 The boundaries of the Cheyenne River Indian Reservation were originally established by the Act of March 2, 1889, 25 Stat. 888. It has been held, however, that the portion of the reservation opened up to settlement (of which Eagle Butte is a part) by the Act of May 29, 1908, 35 Stat. 460 was severed from the reservation by the 1908 Act and no longer “Indian Country.” United States v. LaPlant, 200 F. 92 (D.S.D.1911) and Lafferty v. State, 80 S.D. 411, 125 N.W.2d 171 (1963). See also, State v. Barnes, 81 S.D. 511, 137 N.W.2d 683 (1965). Compare, State v. Molash, 199 N.W.2d 591 (S.D.1972).

The rape was committed on November 2, 1964. Condon thereafter was arrested on federal charges and held in federal custody until April 16, 1965, when South Dakota arrested him on charges of first degree rape. Condon pleaded guilty in state court and received a fifteen-year sentence. Post-conviction efforts in state courts failed. State ex rel. Condon v. Erickson, 182 N.W.2d 304 (S.D.1970). Condon then petitioned the United States District Court for the District of South Dakota claiming that (1) he had been denied effective assistance of counsel and (2) the state was without jurisdiction to try him since the crime was committed on “Indian country,” where federal jurisdiction is exclusive. We agreed with the trial court’s denial of relief on the first issue but remanded with directions to hold an evidentiary hearing on the jurisdictional question. United States ex rel. Condon v. Erickson, 459 F.2d 663 (CA8 1972).

On remand, Judge Nichol granted Condon’s petition for writ of habeas corpus holding that although it appeared that Congress diminished the boundaries of the Cheyenne River Reservation by implication in the Act of May 29, 1908, 35 Stat. 460 (thereby excluding Eagle Butte from the reservation), decisions by the Supreme Court and this Court commanded a contrary result. United States ex rel. Condon v. Erickson, 344 F.Supp. 777 (D.S.D.1972).

On appeal, the State and the United States by amicus curiae urge that the 1908 Act changed the boundaries of the reservation so as to exclude from the reservation the portion in which Eagle Butte is located.

BACKGROUND

“Federal Indian law is a subject that cannot be understood if the historical dimension of existing law is ignored.” F. Cohen, Handbook of Federal Indian Law, XIII (Introduction by N. Margold) (1942). Prior to 1850 the Mississippi River was considered to be the general dividing line between “civilization” and the “Indian Country.” See, Act of June 30, 1834, 4 Stat. 729. The Sioux, who were driven west of the Mississippi by the Chippewa in the early 18th century, roamed the Missouri Valley freely. They followed the buffalo herds which provided them food, shelter and clothing. At this time their lands were definitely unwanted and considered worthless by their neighbors to the east. Soon, however, farming settlers began crossing the Mississippi pushing westward and others carved out great trails through Sioux lands heading for the Oregon’s Willamette valley and western gold fields. The Sioux and their buffalo herds were then threatened by the invaders and constant conflict followed. Finally, in the Treaty of April 29, 1868 at Fort Laramie, the Sioux agreed to a territory encompassing approximately the western one-half of present-day South Dakota, bordered on the east by the Missouri River and portions of present-day Nebraska on the south. This area was known as the Great Reservation of the Sioux Nation.

The demand for Indian lands grew with immigrant settlers flooding in by the thousands. The buffalo became nearly extinct by 1885 and the Sioux had to adjust to a life on the reservation which consisted almost entirely of residing adjacent to government agencies and eating government furnished food. An alliance arose between easterners sympathetic to the Indians and western politicians. From this alliance came an Indian policy by which the Indians allegedly were to become “civilized” in part by receiving allotments or parcels of land and agriculture tools to enable them to create a subsistence of their own.

After the Indians commenced farming on their allotments, a large portion of their reservation was no longer necessary for their purposes and became “surplus.” In the Act of March 2, 1889, 25 Stat. 888, the Great Sioux Reservation was divided into seven separate reservations, one of which is the Cheyenne River Indian Reservation. The new reservations were to be “permanent” and the lands outside the new boundaries were expressly restored to the public domain. 25 Stat. 888, 896, (§ 21) and Act of April 30, 1888, 25 Stat. 94 (§ 21). As of 1904 the Indian population on the Cheyenne River Reservation was 2,557, and by 1908 the reservation encompassed 2,867,840 acres of which 320.-631 had been allotted to 934 Indians, leaving unallotted and theoretically “surplus” some two and one-half million acres. F. Webb, Handbook of American Indians North of Mexico, H.R.Doc.Ño. 926, Part 2, 59th Cong., 1st Sess. 386 (1910).

By the Act of May 29, 1908, 35 Stat. 460, Congress opened to settlement the surplus or unallotted lands in the Cheyenne River and Standing Rock reservations. 80,142 persons registered to homestead. South Dakota Legislative Manual, 131 (1911). The area opened includes the site where Eagle Butte is now located.

THE 1908 ACT

We cannot say that the 1908 Act on its face affected the exterior boundaries of the reservation, although it is admittedly a close question. The Act authorized the Secretary of the Interior “to sell and dispose of all that portion of the Cheyenne River and Standing Rock Indian reservations . . . being within the following described boundaries, . . except such portions thereof as have been allotted to Indians: . . . . ” The lands were to be disposed of by presidential proclamation under the prevailing federal homestead and town-site laws. In nearly all respects, the language of the 1908 Act is identical to other contemporaneous acts held not to have changed the boundaries of the respective reservations involved. See, Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962) and City of New Town, North Dakota v. United States, 454 F.2d 121 (CA8 1972).

Appellee thinks it significant that the 1908 Act provided for the proceeds from the sale of the lands to be deposited into the Treasury of the United States and credited to the Indians as was the case in the 1906 (Seymour) and 1910 (New Town) acts. This method contrasts with prior acts wherein payment for the lands was made directly to the Indians. It has been aptly pointed out, however, that this was simply a new method utilized by a Congress that no longer favored purchasing Indian lands and providing them free of cost to settlers. “New Town et al: the Future of an Illusion,” 18 South Dakota L.Rev. 85, 94-98 (1973).

Appellant relies primarily on two provisions found within the 1908 Act which are not present in either the 1906 or 1910 Acts. In § 2 of the 1908 Act it is stated as a proviso that the Secretary may permit Indians who have received allotments in the area opened to settlement to relinquish such and receive a new allotment “within the respective reservations thus diminished. ...” (emphasis added). This proviso is subject to two competing constructions. The reservation thus diminished, as contended by appellant, means a smaller reservation with adjusted boundaries. On the other hand, the reservation could have retained its original exterior boundaries even though the portion held by Indians was diminished by virtue of the sale of lands within the boundaries to outsiders. Indeed, this would be consistent with 18 U.S.C. § 1151 defining Indian country as lands within the limits of a reservation notwithstanding the issuance of any patent.

More persuasive from appellant’s standpoint is the final sentence of the act, the second proviso of § 9. This section provides that Indians residing upon allotments in a northern strip of townships may use the timber thereon for domestic purposes “only as long as the lands remain part of the puiblic domain.” (emphasis added.) Since the townships are located within the area opened to settlement, appellant asserts that this proviso is declaratory of Congress’ intent that the entire area be restored to the public domain and therefore it is no longer within the 1889 boundaries of the reservation. Appellee argues poor draftsmanship by the authors of the Act. Both are plausible, but Congress may have intended to restore only this Northern strip of townships to the public domain for a limited period until the lands were sold to the homesteading set-tiers. If such were the case, the remaining open area in which Eagle Butte is now a part would not have been affected.

LEGISLATIVE HISTORY

Resort to the applicable contemporaneous and subsequent legislative history is not helpful. Both the House and Senate Committee reports are silent as to the 1908 Act’s effect upon the boundaries of the Cheyenne River Reservation. Appellant points out the various references in the reports and attached documents to a diminished reservation and a relinquishment of land by the Indians. A reservation, however, as already pointed out, may be diminished in land size by sale of portions thereof to non-Indians without changing the reservation’s boundaries.

As in Seymour and New Town, the subsequent Congressional treatment of the reservation has been inconsistent. In the Act of July 11, 1940, 54 Stat. 1336, pt. 2, Congress referred to the opened areas as the ceded areas of the reservation. In 1952, The Secretary of Interior restored to the reservation part of the opened lands, “. . . being within the boundaries of the former Cheyenne River Reservation. . . . ” 17 Fed.Reg. 1065, 1066 (1952). Congress, however, in the Act of June 23, 1910, 36 Stat. 602, pt. 1, authorized the sale of certain of these lands within the opened area to the Milwaukee Land Company, referring to the property as “surplus and unallotted lands in the Cheyenne River Reservation. ...”

The historical relationship between the United States and the Sioux was primarily one of a continuous conflict over the acquisition of Sioux lands by the settlers and their government. The Sioux’s land was acquired by conquest, by treaty and then by Act of Congress. In the earlier acts and treaties, Congress restored the lands acquired to the public domain and then allowed homesteading by settlers free of cost. Later, Congress opened the lands to settlement, selling the lands to homesteaders and depositing the funds in the Treasury to the credit of the Indians. In these later acts, in which the 1906 {Seymour), 1910 {New Town) and the 1908 Acts are included, Congress did not expressly restore the opened lands to the public domain.

It was originally held that Indian Country ceased to be such whenever Indians lost title to the land, Dick v. United States, 208 U.S. 340, 359, 28 S.Ct. 399, 52 L.Ed. 520 (1908); United States v. LaPlant, 200 F. 92 (D.S.D. 1911); Bates v. Clark, 95 U.S. 204, 24 L.Ed. 471 (1877); and F. Cohen, Handbook of Federal Indian Law, 7 (1942). This view has been laid to rest by the present definition of “Indian Country” which includes all land within an Indian reservation notwithstanding the issuance of any patent. See Seymour, supra, 368 U.S. at 357-358, 82 S.Ct. 424. See also, Kills Plenty v. United States, 133 F.2d 292 (CA8 1943). Therefore, the fact that the 1908 Act removes title to reservation lands from the Indians and places it into the hands of non-Indians does not, by itself, affect the exterior boundaries of the reservation.

We cannot say, as we did in New Town, that the 1908 Act “clearly by its own terms does not purport to alter the reservation boundaries” established by the 1889 Act. (emphasis added) 454 F.2d at 125. Nor does a reading of the Act, its legislative history and its subsequent legislative treatment require the opposite conclusion. The Congressional intent underlying the 1908 Act with respect to the reservation’s boundaries is not clearly discernible by application of the traditional methods of statutory construction.

In the final analysis, we conclude that in view of the principles expressed in Seymour, New Town and McClanahan v. State Tax Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973), LaPlant is no longer viable to the extent that it holds that the 1889 boundaries of the reservation were changed by the 1908 Act. See also, United States ex rel. Miner v. Erickson, 428 F.2d 623, 637-638 (CA8 1970) (Judge Lay, dissenting) and Putnam v. United States, 248 F.2d 292 (CA8 1957).

Seymour holds that the opening of an Indian reservation for settlement by homesteading is not necessarily inconsistent with its continued existence as a reservation. The Suprtme Court in Seymour also approved its prior statement in United States v. Celestine, 215 U.S. 278, 285, 30 S.Ct. 93, 95, 54 L.Ed. 195 (1909) that “when Congress has once established a reservation, all tracts included within it remain a part of the reservation until separated therefrom by Congress.” Finally, in MeClanahan, supra, the Court reaffirmed the long standing “policy of leaving Indians free from state jurisdiction and control [which] is deeply rooted in the Nation’s history.” Rice v. Olson, 324 U.S. 786, 789, 65 S.Ct. 989, 991, 89 L.Ed. 1367 (1945). See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832) and Beardslee v. United States, 387 F.2d 280, 285 (CA8 1967) (Blackmun, J.).

Each case, of course, must be decided under the applicable statute and upon its own facts. Where as here, however, the question presented is close, we conclude that a holding favoring federal jurisdiction is required unless Congress has expressly or by clear implication diminished the boundaries of the reservation opened to settlement. We therefore affirm the trial court’s decision that the original boundaries of the Cheyenne River Indian Reservation as established by the 1889 Act were unaffected by the 1908 Act. Eagle Butte, therefore, lies within “Indian Country,” as defined by 18 U.S.C. § 1151 and the State Courts of South Dakota had no jurisdiction to try Condon for the offense. The writ of habeas corpus was properly granted.

Affirmed.

      . As a condition to achieving statehood, South Dakota incorporated into its State Constitution, adopted on October 1, 1899, Article XXII in which the State disclaimed all right and title to lands owned or held by Indians or Indian tribes. In 1901, the State relinquished to the United States exclusive jurisdiction and authority to arrest, prosecute, convict and punish all persons in violation of federal laws when committed upon any Indian Reservation. By the Act of February 2, 1903, 32 Stat. 793, Congress granted jurisdiction to the United States District Court for the District of South Dakota to hear and try persons committing certain crimes on Indian reservations. See, Kills Plenty v. United States, 133 F.2d 292 (CA8 1943). For fifteen years Congress offered to the states, South Dakota included, to turn over civil and criminal jurisdiction of persons within Indian reservations. Act of August 15, 1953, § 7, 67 Stat. 588 (18 U.S.C, § 1162 and 28 U.S.C. § 1360), repealed, Pub.L. 90-284, Title IV, § 403(b), April 11, 1968, 82 Stat. 79 (25 U.S.C. § 1323). South Dakota apparently could never muster sufficient popular support in order to accept the United States’ offer of jurisdiction. See, Staff Report, “Jurisdiction Over Indian Country in South Dakota,” (South Dakota State Legislative Research Council, March 5, 1964) and State v. Molash, 199 N.W.2d 591, 593 (S.D.1972).

      . See, General Allotment Act (Dawes Act), Act of February 8, 1887, 24 Stat. 388.
      It has been estimated that the Indian farmers achieved a minimally successful crop only one out of every five years, the other four were destroyed by drought or flood. See G. Hyde, A Sioux Chronicle (1956). See also, Annual Reports of the Dept, of Interior, 328-333 (1905).

      . For an account of the methods used in the 1880’s by the agents of the “Great White Father” to obtain the consent of the Indians to the agreement, see G. Hyde, A Sioux Chronicle (1956).

      . 1 Kappler, Indian Affairs — Laws and Treaties, 1030 (1904).

      . In § 7, Congress made a specific grant of sections 16 and 36 of each township to the states for the use of the common schools.

      . This method became quite unpopular from the standpoint of the Indian, who wanted the money in his pocket rather than deposited for his “benefit” in the Treasury of the United States. See G. Hyde, A Sioux Chronicle (1956) and H.It.Rep.No. 1539, 60th Cong., 1st Sess., 21-28 (1908).

      . H.R.Rep.No.1539, 60th Cong., 1st Sess. (Misc. Vol. No. 2, April 20, 1908) and Sen.Rep.No.439, 60th Cong., 1st Sess. (Misc. Vol. No. 2, April 1, 1908).


source: Caselaw Access Project

author: COFFIN, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Richard J. TAYLOR, Jr., Defendant, Appellant.
    No. 72-1231.
    United States Court of Appeals, First Circuit.
    Argued April 10, 1973.
    Decided May 14, 1973.

      Roger C. Park, Boston, Mass., by appointment of the Court, with whom Zalkind & Silverglate, Boston, Mass., was on brief, for appellant.
    Alan R. Hoffman, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

Appellant Taylor was charged with four counts of selling cocaine in violation of 26 U.S.C. § 4705(a). His trial began on April 4, 1972. At the expiration of the morning session, at which appellant was present and during which the prosecution had presented testimony from one of its agents who had purchased the cocaine from appellant, the district court announced that there would be a lunch recess until 2 p.m. Appellant was also told by his attorney to return to the courtroom at that time. Despite this knowledge, appellant failed to return and after the neighboring halls and courtrooms were searched, the judge recessed the trial until the following morning. That morning appellant’s wife testified that she had left the courtroom the previous day with her husband, that they separated after taking a cab to Roxbury, that he did not appear to be ill, and that she had not heard from him since.

Appellant's trial counsel then moved for a mistrial on the grounds that the jurors’ minds would be tainted by appellant’s absence and that to continue the trial would deprive appellant of the Sixth Amendment right to confront witnesses against him. This motion was denied, as the judge found appellant to have absented himself voluntarily from the proceedings and, pursuant to F.R.Crim.P. 43, continued the trial. Throughout the remainder of the trial, the court scrupulously and more than once told the jury that they could not draw any inference of guilt from appellant’s absence. Another motion for a mistrial on Fifth and Sixth Amendment grounds was denied before the jury was given the case. After deliberation, the jury found against appellant on all four counts. He was subsequently arrested and sentenced to the statutory five year minimum, to be served concurrently with a state court sentence, on July 6, 1972.

On appeal, appellant’s main contention is that he was deprived óf the right to confront witnesses against him under the Sixth Amendment and of due process of law under the Fifth Amendment as a result of the trial having continued in his absence. While recognizing the right to be present at every stage of one’s trial may be waived, except in capital offenses, Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912), appellant contends that generally a waiver of constitutional rights cannot be found in the absence of “an intentional relinquishment or abandonment of a known right or privilege”, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), and that in the context of the right of confrontation, appellant must have been warned of or be shown to have otherwise known the consequences of his absence — viz., that if he “voluntarily absented himself he would be deemed to have waived his constitutional right to testify and to confront witnesses against him so that the trial could continue without him.” United States v. McPherson, 137 U.S.App.D.C. 192, 421 F.2d 1127 (1969).

When we examine appellant’s contention in regard to the Sixth Amendment right to confrontation in the circumstances of this case, his claim must be rejected. We agree with Judge Tamm in his dissent in McPherson, supra at 1131, that “the right that was involved was the right to be present. Thus it follows that if the defendant knew or should have known that he had a right to be present, his voluntary absence (and there is no doubt that his absence was voluntary) was a waiver of that ‘known right.’ ”2 We deem this reasoning dispositive here since there is no claim, nor do we think there can be under the facts before us, that appellant did not know that he had a right to be present in court during every stage of his trial, cf. Wade v. United States, 142 U.S.App.D.C. 356, 441 F.2d 1046 (1971), nor that his absence was due to anything but his voluntary choice.

Appellant protests that this formulation of the confrontation right and its attendant waiver here is too narrow, since there is no indication that it was forfeited “with sufficient awareness of the relevant circumstances and likely consequences”. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). He would have us believe that a defendant who flees from a courtroom in the midst of a trial —where judge, jury, witnesses and lawyers are present and ready to continue —would not know that as a consequence the trial could continue in his absence. We think that “this is one of those cases in which the imagination is baffled by the facts.” Sir Winston Churchill, Bartlett’s Familiar Quotations at 922 (14th ed. 1968). The very statement that a trial will continue or commence at a fixed time, when coupled with knowledge of one’s right to be present at trial, implies that the continuation of the trial, at least in non-capital eases, does not depend on his presence. More pertinent, and more specific here, we note that at sentencing, when appellant was questioned regarding his flight from the trial, he made no contention that he was unaware of the fact that as a consequence of his flight the trial could continue in his absence.

Moreover, we note that any Supreme Court precedent on this specific issue is supportive of our formulation of the right and its waiver in such cases.' In Diaz, swpra, a case in which the defendant expressly consented to the continuance of the trial in his absence, the Court cited with approval many relevant state and federal decisions, among them Fight v. State, 7 Ohio 181 (1835) and Falk v. United States, 15 App.D.C. 446 (1899), both involving a situation where the defendant left in the midst of a trial which the Court agreed was properly continued in the defendant’s absence. Although we recognize that these cases antedate Johnson v. Zerbst, supra, we do not feel that we can overlook them.

In any event, even if we were free to write on fresh foolscap, when we more closely examine the Supreme Court cases on which appellant relies, we see that their rationale does not support the position, here advocated. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), required that one being interrogated by police authorities must not only be told that he has a right to remain silent, but must be told an important consequence of a waiver of that right — that anything that is said may be held against him. Brady, supra, and other eases involving guilty pleas require that a defendant be told exactly what rights he forfeits in foregoing a trial. In both cases we think that the consequences of the waiver were not so obvious or direct as those in a situation like the one before us. But, more important, those cases extended the constitutional umbrella so broadly because of other underlying problems. In Miranda the Court was concerned with the problems of direct coercion, the charged emotional atmosphere in many in-custody interrogations and the understandable fear held by an accused that he had better cooperate with the police if he hopes for any leniency later. In Brady the Court recognized that a multitude of extraneous factors, some of which might include improper prosecutorial activity, have, frequently induced a decision to plead guilty. Thus, in both instances it was thought that the constitutional rights at stake could be meaningfully exercised only if the consequences of waiver were expressly told to the accused. These or similar underlying fears are simply absent in our case. A defendant free on bail, and thus not in custody, is not subject to any direct coercion to waive his right to be present at his trial. Nor might a defendant free on bail be led to believe that he could gain anything, certainly not favor with the authorities, by absenting himself from his own trial. We do not feel that the situation before us calls for an expansion of the holdings in Miranda and Brady.

An additional reason for our decision is what we perceive to be the enormous practical problems which adoption of the appellant’s position could cause, so as to make the solution unworkable. While appellant contends that the explicit warning requirement he seeks to impose on the judicial system is salutary and would be easy to administer, in that only a few more words at the time bail is effectuated would be sufficient to satisfy the suggested requirement, we do not view the matter so simply. We well an-tieipate the argument that a defendant who did not appear at his trial several months after bail was provided should not be expected to remember the initial admonition given by the magistrate who enlarged him. Aside from such problems relating to timing, we wonder exactly what consequences of waiver might be incorporated into a warning to a defendant. He might be told that he would waive his right to confront witnesses against him. He might also be told that although relevant testimony given in his absence might be capable of being rebutted by any witnesses or evidence the defendant desires to introduce, his leaving the trial would, as a practical result, leave him without compulsory process for obtaining important witnesses in his favor. He might be told that his counsel would be unable to properly continue his defense without his aid, and so he would thereby be waiving the effective assistance of counsel. He might also be told that he would waive his right to testify in his own behalf. We hesitate to catalogue the various consequences which could result when a defendant absconds from trial. It is sufficient to state that we are disinclined to go beyond what the Supreme Court has thus far required in this situation, and, in effect, impose upon a trial court an added ritual of explanation which would be comparable to that administered to a defendant before accepting a plea of guilty.

Lastly, we are not without any Congressional guidance in this matter. Rule 43 of F.R.Crim.P. allows the continuation of a trial despite “the defendant’s voluntary absence”. There is no indication that the rule requires anything more than what we have found to be the present constitutional standard for waiver in this case, i.e., simply knowledge of the right to be present and voluntary absence. In fact, the rule may work an even more absolute forfeiture of the right of confrontation than we have suggested, see generally, Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), though we are not called upon to decide that issue at this time.

We therefore conclude that the district court did not violate the Sixth Amendment in continuing the trial pursuant to F.R.Crim.P. 43 in appellant’s voluntary absence. Additionally, whatever might be the result in other cases where actual prejudice amounting to a miscarriage of justice could be demonstrated, we do not believe that the continuation of the trial here constituted a denial of due process.

Appellant’s second basis for this appeal is that the court committed plain error when it charged the jury as to reasonable doubt. He relies particularly on United States v. MacDonald, 455 F.2d 1259 (1st Cir. 1972), decided three weeks before the charge here was given, in which we cautioned district courts not to deviate from the consistently approved stock of charges on reasonable doubt. We did not, however, find the charge in MacDonald, which included two references to “intelligent reason” and one to “proof to a moral certainty, proof beyond a doubt for which you can give a reason”, to constitute plain error. A fortiori, we think that in the context of the entire charge here the solitary, off-handed reference to “valid reason” does not call for reversal as a matter of law.

Affirmed.

      . Rule 43 reads in part:
      “The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. In prosecutions for offenses not punishable by death, the defendant’s voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict.

      . This issue is apparently still open for a definitive Supreme Court ruling. See Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973).

      . The majority opinion in McPherson stands alone in sharp contrast to other cases which have defined the scope of the right to confrontation more in accordance with Judge Tamm’s views, including our implicit rulings on this point in Goitia v. United States, 409 F.2d 524 (1st Cir. 1969) and United States v. Miller, 463 F.2d 600 (1st Cir. 1972). See also United States v. Partlow, 428 F.2d 814 (2d Cir. 1970) ; United States v. Tortora, 464 F.2d 1202 (2d Cir.), cert. denied sub nom. Santoro v. United States, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972) ; United States v. Eskew, 460 F.2d 1028 (9th Cir. 1972) ; United States v. Garcia-Turino, 458 F.2d 1345 (9th Cir. 1972) ; United States v. Cox, 459 F.2d 986 (5th Cir. 1972).

      . The court has made an independent finding on the issue of voluntariness, after examining transcripts from the trial and sentencing hearing, as we did in Miller, supra, 463 F.2d at 603 n. 4; see also Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 n. 4 (1966).

      . At the sentencing hearing, appellant went into his reasons for absconding. “The reason I left out of the courtroom is because it is not my lawyer’s fault or anybody else’s, it is just how things were coming out and I knew they were wrong and I don’t you know, I didn’t have a voice of saying whatever I wanted to say.” “I got scared he couldn’t defend me right because I left out of here.”

      . Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) in which the Court said that before an unruly defendant could be said to lose his right to be present at his own trial, he must be specifically so warned and told that the trial would continue in his absence, is significantly distinguishable from the instant case. It involves, most fundamentally, a removal from the courtroom which is effectuated by a physical act or threat of a governmental agent and not, as here, a voluntary and uncoerced flight. Moreover, the therapeutic value of a warning in a case like Allen, whereby the unruly defendant’s course of action may be immediately and voluntarily terminated, is totally absent here where the wrongful act, the decamping, leaves no one to warn.

      . The warning might, according to appellant, consist of the following: “I inform you that you have a right to be present at every stage of your trial, but that if you voluntarily absent yourself at any stage of the proceedings, they may be continued in your absence.”

      . In Davis, Mr. Justice Rehnquist, speaking for a majority of tlie Court, wrote that F.R.Crim.P. 12(b)(2), which requires certain defects in the institution of a prosecution or indictment to be raised before trial and that failure to do so constitutes a waiver thereof, precludes subsequent raising of a claim of unconstitutional composition of the grand jury which returned the indictment. Noting that the jury selection system there attacked “had been openly followed for many years prior to petitioner’s indictment”, id., at 235 of 411 U.S., at 1579 of 93 S.Ct., the Court did not utilize the proffered standard of Johnson v. Zerbst, supra, that waiver must be “understandingly and knowingly” effectuated, in ruling that the petitioner had forfeited his right to raise the constitutional claim pursuant to Rule 12(b) (2).

      . The charge, not objected to, stated in part: “If you do not accept the testimony as clear evidence of his guilt, if you find that from the testimony you cannot make up your minds, that you are wavering back and forth l>ecause of some reason, some valid reason; or if after reaching a judgment it does not remain, so that you say: ‘I’m not so sure, I can’t, I can’t accept that’ — then the government has failed to prove the commission of the crime beyond a reasonable doubt.” [Emphasis added.]


author: DONALD RUSSELL, Circuit Judge: CRAVEN, Circuit Judge

text:
    Jesse FOWLER, Individually and on behalf of all others similarly situated, Appellant, v. Abner ALEXANDER, Chief District Judge, 21st Judicial District of North Carolina, et al., Appellees.
    No. 72-1471.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 2, 1972.
    Decided May 7, 1973.

      Michael Sheely, Winson-Salem, N. C. and Herman L. Stephens, Kernersville, N. C. (Thorns Craven and Nonnie F. Midgette, Winston-Salem, N. C., on brief) for appellant.
    Jacob L. Safron, Asst. Atty. Gen. of N. C. (Robert Morgan, Atty. Gen. of N. C. and P. Eugene Price, Jr., County Atty., for Forsyth County, N. C., on bi'ief) for appellees.
    Before CRAVEN, RUSSELL and WIDENER, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

Contending that certain North Carolina statutes, under the terms of which he has been temporarily confined earlier, were unconstitutional, the plaintiff seeks declaratory relief finding such statutes invalid, an injunction against their future enforcement, and damages for his short confinement. The defendants are the judges of the court who ordered the plaintiff confined under the provisions of the challenged statutes, the sheriff and the jailer who executed the order of the court in confining the plaintiff temporarily, and the director of the Administrative Office of the Courts of North Carolina. The plaintiff requested the convening of a three-judge court to hear his constitutional attack on the statutes. The district court, 340 F.Supp. 168, denied the request and proceeded to dismiss the complaint.

We affirm.

The plaintiff’s connection with the statutes of which he complains in this action began by his procuring the issuance of a warrant against a Mrs. Gentry, charging her with the theft of his watch. When subpoenaed to testify at Mrs. Gentry’s trial, he appeared and asked that the charges be dismissed. The Court dismissed the charges and without a hearing assessed costs against him under the terms of the statutes, whose validity he attacks. Claiming inability to pay, he was placed in the county jail by order of the court. The next day a relative paid the costs and he was released. He thereupon filed this action. He makes no claim that he contemplates now or in the future procuring the prosecution of any person in North Carolina —certainly not any prosecution for which a finding of want of “reasonable-ground for the prosecution” could be made. So far as the present prospects of the plaintiff appear, the enforcement of the statutes assailed by him presents no present or even likely threat of harm or injury to him. By his action, it is rather plain he is not seeking protection against any real probability of present or future enforcement of the statutes against him, but seeks to express his resentment at their past use against him on the occasion when he procured a prosecution, the good faith of which the trial court, without hearing, found lacking.

We may quickly dispose of plaintiff's claim for damages. It is plainly without merit. The defendants were cloaked with immunity. Pierson v. Ray (1967) 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288. Such immunity, however, does not extend to plaintiff’s action for injunctive and declaratory relief under Section 1983, 42 U.S.C. Littleton v. Berbling (7th Cir., 1972), 468 F.2d 389. We are of opinion, however, that the district court correctly dismissed these aspects of plaintiff’s action for lack of standing.

Standing is not a procedural issue in the exercise of federal judicial power. Article III, Section 2 of the Constitution limits the judicial power of federal courts to the adjudication of “cases” or “controversies”. The existence of a case or controversy within this constitutional concept “depends upon whether the persons seeking relief have alleged a sufficient personal stake in the outcome to assure that the court will be called upon to resolve real issues between genuine adversaries rather than merely to give advisory opinions with respect to abstract or theoretical questions.” Abele v. Markle (2d Cir. 1971) 452 F.2d 1121, 1124. Specifically, “the constitutionality of laws may be challenged only by those litigants who will suffer some actual or substantial injury from their enforcement, as distinguished from a remote, general, or hypothetical possibility of harm.” Id.

These principles were given practical application by the Supreme Court in the recent decision of Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, where the standing of a non-pregnant wife, who had received medical advice that pregnancy would endanger her health, to maintain an attack on a state anti-abortion statute was at issue. The Court said, in denying standing: “This very phrasing of the Does’ position reveals its speculative character. Their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health. Any one or more of these several possibilities may not take place and all may not combine. In the Does’ estimation, these possibilities might have some real or imagined impact upon their marital happiness. But we are not prepared to say that the bare allegation of so indirect an injury is sufficient to present an actual case or controversy.” (at 128, 93 S.Ct. at 714). The same conclusion was reiterated by Mr. Justice Marshall in Linda R. S. v. Richard D. and Texas et al., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536, 1973: “The Court’s prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” Earlier in Laird v. Tatum (1972) 408 U.S. 1, 13-14, 92 S.Ct. 2318, 2325, 33 L.Ed.2d 154, involving a claim of a preferred First Amendment right, the Court emphasized that, “[A]negations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm; ‘the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.’ ”

It is true that there are some instances in which standing will be upheld even though the complainant may not allege present harm. Those instances, however, are limited to situations where, because of the complainant’s vocation or some other unique condition, the threat of future prosecution of the plaintiff represents a real present and future threat or hazard. That was the situation of the physician in Doe v. Bolton (1973) 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, filed January 22, 1973, who in his normal practice, it would be reasonably anticipated, would be consulted by pregnant women patients seeking an abortion. 410 U.S., at 187-188, 93 S.Ct., at 745-746. It was, also, the situation in Wulp v. Corcoran (1st Cir. 1972) 454 F.2d 826, where plaintiffs engaged in the sale and distribution of newspapers and other printed material, although not yet arrested or threatened, were threatened with prosecution under a permit ordinance.

Applying these rules to the facts of this case, it would appear plain that the plaintiff lacks standing to put in issue the constitutionality of the North Carolina statutes. He is under no present threat of prosecution under these statutes. The likelihood that he will run afoul of them in the future is remote and speculative in the extreme. It can be safely assumed — and he does not allege otherwise — that he does not contemplate either presently or in the future the institution of a prosecution in North Carolina. Unlike the physician in Bolton, he is not engaged in a business in connection with which it is reasonably to be anticipated he will be called on to prosecute in North Carolina some individual without probable cause. Similarly, unlike the situation faced by the complainants in Wulp, he is not threatened with a present prosecution under the statutes he challenges. The most he can contend is that the statutes represent an intangible “chill” on his possible exercise of a right to prosecute undei North Carolina law. But the mere fact that the statutes may chill in some indefinable way his urge to prosecute is of no moment in the absence of any real likelihood that he has or will have reason to prosecute some one in North Carolina. As Mr. Justice Black in Younger v. Harris (1971) 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, summed it up: feelings of “inhibition”, without any claim of a threat of prosecution, or that a prosecution was likely, or even remotely possible, are entirely too “imaginary or speculative” to establish standing. (401 U.S. at 42, 91 S.Ct. 746).

The mere fact that earlier the plaintiff was caught in the net of the challenged statutes gives him no standing. His earlier encounter with the statutes has become moot. The costs assessed have been paid, not by the complainant but by others. He is no longer restrained. He is plainly not subject to any “specific present objective harm”. His claim to relief in this proceeding relates not to a present claim of harm but to a “chill” resulting from the possible future enforcement of the statutes.

Affirmed.

CRAVEN, Circuit Judge

(dissenting) :

Has Fowler “established that ‘personal stake in the outcome of the controversy,’ Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), that insures that ‘the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution,’ Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972)?” Roe v. Wade, 410 U.S. 113, 123, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973). I think so. Fowler has been incarcerated pursuant to the statute in question in the past and may be again should he execute another criminal warrant.

This case is not like Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971) where:

Not a single one of the citizens who brought this action had ever been prosecuted, charged, or even arrested under the particular intimidation statute which the court below held unconstitutional. . . . Rather, it appears from the allegations that those who originally brought this suit made a search of state statutes and city ordinances with a view to picking out certain ones that they thought might possibly be used by the authorities as devices for bad-faith prosecutions against them.

401 U.S. at 80-81, 91 S.Ct. at 760.

That Fowler is not now being prosecuted or imminently threatened with prosecution is not dispositive of this case. Kirkland v. Wallace, 403 F.2d 413, 415 n.4 (5th Cir. 1968). Fowler can “present a justiciable controversy and . have standing despite the fact that the record does not disclose that [he] has been prosecuted, or threatened with prosecution, for violation of the State’s . . . statutes.” Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973). The majority opinion states that standing will be upheld, absent present harm, only in those cases where because of the plaintiff’s vocation or other unique condition there is a real and present hazard. However, that is the rule where one person is found to have standing to assert the rights of another, Eisenstadt v. Baird, 405 U.S. 438, 445-446, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), and is not applicable here where Fowler challenges the statute in his own right.

Because of Fowler’s past involvement with the statute, I think he is a proper party to request an adjudication of the issue. See Flast v. Cohen, 392 U.S. 83, 100, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

That the doctrine of abstention may be applicable, e. g., Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), is not relevant to the standing issue. Arrington v. City of Fairfield, 414 F.2d 687, 691 (5th Cir. 1969). Indeed, such an equitable decision is beyond the power of a single judge and is to be determined by the three-judge court. Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Abele v. Markle, 452 F.2d 1121,1126 (2d Cir. 1971).

Therefore, for the reasons stated above, I would reverse the district court and remand with directions to request the convening of a three-judge court.

      . N.C.Gen.Stats. §§ 6-49, 6-50, which are statutes of statewide application. At the time of Fowler’s incarceration, § 6-49 provided in relevant part:
      In all criminal actions in any court, if the defendant is acquitted, nolle prosequi entered, or judgment against him is arrested, or if the defendant is discharged from arrest for want of probable cause, the costs, including the fees of all witnesses whom the judge, court or justice of the peace before whom the trial took place shall certify to have been proper for the defense and prosecution, shall be paid by the prosecutor, whether marked on the bill or warrant or not, whenever the judge, court or justice is of the opinion that tbere was not reasonable ground for the prosecution, or that it was not required by the public interest.
      N.C.Gen.Stats. § 6-49 (Repl. Vol. 1969).
      Also, § 6-50 provided:
      Every such prosecutor may be adjudged not only to pay the costs, but he shall also be imprisoned for the nonpayment thereof, when the judge, court, or justice of the peace before whom the case was tried shall adjudge that the prosecution was frivolous or malicious.
      N.C.Gen.Stats. § 6-50 (Repl. Vol. 1969).
      These statutes were amended in 1971 so that incarceration may only be imposed when the nonpayment of costs is willful. N.C.Gen.Stats. § 6-50 (Repl. Vol. 1969), as amended (Supp. 1971).

      . This analysis of Younger follows the language of the Court in Wulp v. Corcoran, supra, at 830 of 454 F.2d.


author: PER CURIAM:

text:
    Mrs. Patricia DEWRELL, as Administratrix of the Estate of Mrs. Lonie S. Jackson, Deceased, Plaintiff-Appellant, v. Caspar W. WEINBERGER, as Secretary of Health, Education and Welfare, Defendant-Appellee.
    No. 73-1058
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 2, 1973.
    Frank J. Mizell, Jr., Montgomery, Ala., for plaintiff-appellant.
    Ira DeMent, U. S. Atty., Kenneth E. Vines, Asst. U. S. Atty., Montgomery, Ala., for defendant-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

In this suit for review of a denial of Social Security benefits, claimant alleges that there was no substantial evidence to justify denial of her claim and that she was denied procedural due process in her disability hearing. The District Court, relying on its Magistrate’s recommendations, affirmed the administrative decision. We affirm.

The Social Security Act provides that the Secretary’s factual findings which are supported by substantial evidence shall be conclusive. 42 U.S.C.A. § 405 (g). This Court’s task, therefore, is limited to review of the administrative record to determine if there is such substantial evidence to support the Secretary’s decision. See Jackson v. Richardson, 449 F.2d 1326 (5th Cir. 1971).

Section 223(d)(2)(A) of the Social Security Act, 42 U.S.C.A. § 423(d)(2) (A) provides that

an individual . . . shall be determined to be under a disability only if his physical or mental . . . impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy ....

Careful review of the record reveals substantial medical evidence that claimant did not qualify for benefits under this definition of “disability.”

We find no merit in appellant’s claim that she was denied procedural due process in her disability hearing.

Affirmed.


text:
    DeKALB COUNTY, GEORGIA, Plaintiff-Appellant, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Defendant-Appellee.
    No. 72-3783.
    United States Court of Appeals, Fifth Circuit.
    May 29, 1973.
    George P. Dillard, Robert E. Mozley, Herbert O. Edwards, Decatur, Ga., for plaintiff-appellant.
    Harry S. Baxter, J. Rodgers Lunsford, III, A. Stephens Clay, Albert C. Tate, Jr., Atlanta, Ga., Murphey Candler, Jr., Gary M. Sams, Decatur, Ga., for defendant-appellee.
    Before AINSWORTH, DYER and INGRAHAM, Circuit Judges.
   PER CURIAM:

We are in agreement with the well reasoned opinion of the district court, DeKalb County, Georgia v. Southern Bell Telephone and Telegraph Company, 358 F.Supp. 498 (N.D.Ga.1972), and its judgment is affirmed.


author: PER CURIAM.

text:
    Kenneth R. LaLONDE, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees.
    No. 72-1699.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 11, 1973.
    Decided June 21, 1973.
    Robert J. Milzavetz, Minneapolis, Minn., for plaintiff-appellant.
    William A. Whitledge, Atty., Tax Div., Dept, of Justice, Washington, D.C., for defendants-appellees.
    Before CLARK, Associate Justice, Retired, and HEANEY and BRIGHT, Circuit Judges.

       United States Supreme Court, sitting by designation.

   PER CURIAM.

Upon a careful consideration of the record, briefs and arguments of the parties, the Court has concluded that the judgment of the District Court should be affirmed for the reasons stated in that court’s opinion. LaLonde v. United States, 350 F.Supp. 976 (D.Minn. 1972).


text:
    EXTENDICARE OF KENTUCKY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-2049.
    United States Court of Appeals, Sixth Circuit.
    Argued June 8, 1973.
    Decided June 15, 1973.
    John S. Greenebaum, Louisville, Ky., for petitioner; Boyce F. Martin, Jr., Barnett, Greenebaum, Martin & McConnell, Louisville, Ky., on brief.
    Elliott Moore, Acting Asst. Gen. Counsel, N.L.R.B., Washington, D.C.; John C. Getreu, Director, Region 9, N.L.R.B., Cincinnati, Ohio, Margery Lieber, N.L.R.B., Washington, D.C., for respondent; William Wachter, Atty., Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Washington, D.C., on brief.
    Before PHILLIPS, Chief Judge, O’SULLIVAN, Senior Circuit Judge, and LIVELY, Circuit Judge.
   ORDER

This matter is before the Court upon the petition of Extendicare of Kentucky, Inc. to review and set aside an order issued by the National Labor Relations Board and the cross application by the Board for enforcement of its order. The Board’s decision and order are reported at 199 NLRB No. 47. With respect to all issues except the termination of the employment of Rita Doyle there is substantial evidence to support the findings and the order of the National Labor Relations Board and enforcement is granted. We further conclude that the findings of the Board with respect to the discharge of Rita Doyle are not supported by the evidence as a whole and enforcement of the order of the Board insofar as it finds the discharge of Rita Doyle to violate the National Labor Relations Act and directs her immediate reinstatement is denied. It is further ordered that the notice to employees prepared by the trial examiner and filed as an appendix to his decision be substituted for the notice to employees filed as an appendix to the decision and order of the Board.


text:
    CHARTERED NEW ENGLAND CORPORATION, Plaintiff-Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY et al., Defendants-Third-Party Plaintiffs-Appellees, v. Milton BOMBACH et al., Third-Party Defendants.
    No. 72-2214.
    United States Court of Appeals, Fifth Circuit.
    June 22, 1973.
    Lawrence B. Clark, James F. Trucks, Jr., Birmingham, Ala., for plaintiff-appellant.
    James E. Clark, Birmingham, Ala., William P. Sullivan, Jr., New York City, for Hartford.
    Ferris S. Ritchey, Birmingham, Ala., for Fadwa Adrey and others.
    Sydney Lavender, Birmingham, Ala., for N.B.C.
    Before COLEMAN, MORGAN and RONEY, Circuit Judges.
   PER CURIAM:

In this suit on a broker’s employees blanket fidelity bond, we are asked to review a summary judgment for the defendant. The question is whether the insured’s negotiations with and entry into agreements with the employee and third person debtors regarding the loss were of such import as to relieve the insurer of liability on the bond, and, more particularly, whether there is a genuine issue as to any material fact which requires reversal.

Having studied the briefs, considered extended oral argument,_ reviewed the record, and conducted substantial independent legal research, the Court is of the opinion that there is no error in the trial court proceedings or in the trial judge’s disposition of the case.

Affirmed.


text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. Edward F. MAULDIN, in his Individual capacity and as Administrator of the Estate of Leonard S. Preuit, Defendant-Appellee.
    No. 72-3517.
    United States Court of Appeals, Fifth Circuit.
    June 15, 1973.
    Rehearing and Rehearing En Banc Denied Aug. 7, 1973.
    Richard F. Schubert, Sol. of Labor, U.S.; Dept, of Labor, Washington, D.C., Beverley R. Worrell, Regional Sol., U.S. Dept, of Labor, Atlanta, Ga., Sandra P. Bloom, Dept, of Justice, Washington, D.C., Norman H. Winston, Associate Regional Sol., George D. Palmer, Atty., U.S. Dept, of Labor, Birmingham, Ala., Carin Ann Clauss, Donald S. Shire, Dept, of Labor, Washington, D.C., for plaintiff-appellant.
    E. B. Haltom, Jr., Donald H. Patterson, Florence, Ala., for defendant-appellee.
    Before AINSWORTH, GODBOLD and INGRAHAM, Circuit Judges.
   PER CURIAM:

We are in agreement with the well reasoned Memorandum Opinion of the district court, Hodgson v. Mauldin, 344 F.Supp. 302 (1972), and its judgment is affirmed.


text:
    Evelyn HOLLMAN, etc., Plaintiff-Appellant, v. Max V. COGEN and Peter M. Cogen, d/b/a 187 Street Apartments, Ltd., Defendants-Appellees.
    No. 73-1421
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 19, 1973.
    Robert F. Williams, Miami, Fla., John Lazarus, Opa-locka, Fla., for plaintiff-appellant.
    Peter M. Cogen, Opa-locka, Fla., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   ORDER:

Appellee’s answer to a motion for reconsideration filed with the District Court below stated that appellant had since paid her rent and her tenancy was then in good standing. Appellee stated that it had not brought an action against appellant nor does it intend to do so. The case is therefore moot and the order of the District Court is vacated with directions to dismiss the complaint.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TEAMSTERS FREIGHT EMPLOYEES LOCAL UNION NO. 480, INT’L BHD. OF TEAMSTERS, etc., Respondent.
    No. 73-1058.
    United States Court of Appeals, Sixth Circuit.
    Argued June 11, 1973,
    Decided June 15, 1973.
    Richard A. Cohen, Asst. Gen. Counsel, N.L.R.B., Washington, D.C., John J. A. Reynolds, Jr., Director, Region 16, N.L. R.B., Memphis, Tenn., Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Acting Asst. Gen. Counsel, Washington, D.C., for petitioner.
    Cecil D. Branstetter, Nashville, Tenn., for respondent; Carrol D. Kilgore, Nashville, Tenn., on brief.
    Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and CECIL, Senior Circuit Judge.
   ORDER

Upon consideration of the record, briefs and arguments of counsel for the parties, the Court finds that there is substantial evidence to support the findings of fact of the Board and the inferences to be drawn therefrom, the decision and order of the Board being reported at 197 NLRB #162.

The Court further finds that the respondent has violated Section 8(b)(2) of the National Labor Relations Act as amended by attempting to cause the company to employ only union members as casual drivers, and has violated Section 8(b)(2) and (1)(A) of the Act by causing the company to drop from its list of casual drivers, James and Kenneth Bonds, because they were not union members.

It is therefore ordered that the Order of the Board be and it is hereby enforced.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. James FRANKLIN, Defendant-Appellant.
    No. 72-3558.
    United States Court of Appeals, Fifth Circuit.
    June 14, 1973.
    Henry Gonzales, Tampa, Fla., for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-appel-lee.
    Before JOHN R. BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   PER CURIAM:

This is a conviction for perjury. We are of the clear opinion that the questions asked and the answers given did not constitute perjury. Cf. Bronston v. United States, 1973, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568.

Reversed.


text:
    Glen A. WILSON, Petitioner-Appellant, v. STATE OF LOUISIANA, Respondent-Appellee. Donald MIMS, Petitioner-Appellant, v. STATE OF LOUISIANA, Respondent-Appellee.
    Nos. 73-2274, 73-2172.
    United States Court of Appeals, Fifth Circuit.
    June 13, 1973.
    Donald Mims, pro se.
    Glen A. Wilson, pro se.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, La., for respondent-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.
   PER CURIAM.

These are appeals from orders imposing conditions of pre-trial release, taken under 18 U.S.C. § 3147. Previously we remanded the causes for entry of written statement of reasons for imposing conditions of release, Rule 9(a), F.R.A. P., and the statements have been filed as a supplemental appendix.

The motion of appellant Wilson to appeal in forma pauperis is granted with respect to only this appeal from order imposing conditions of release.

The orders of the District Court are supported by the proceedings below, and thus they are affirmed. 18 U.S.C. § 3147.


author: THORNBERRY, Circuit Judge:

text:
    James LAWRENCE L.S.P. #66555, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, Respondent-Appellant,
    No. 72-2553.
    United States Court of Appeals, Fifth Circuit.
    June 5, 1973.
    Rehearing and Rehearing En Banc Denied July 11, 1973.

      Clement Story, III, Asst. Dist. Atty., Louise Korns, New Orleans, La., for respondent-appellant.
    Louis B. Merhige, New Orleans, La., for petitioner-appellee.
    Before BELL and THORNBERRY, Circuit Judges, and GROOMS, District Judge.
   THORNBERRY, Circuit Judge:

Appellee Lawrence was convicted in 1968 in a Louisiana court of heroin possession and sentenced to a twelve-year term of imprisonment. He petitioned the district court below for a writ of habeas corpus, which was granted conditionally. ***The Louisiana Prison Warden appeals. Finding his five assignments of error to be without merit, we affirm.

The facts which led to the conviction are summarized in the district court’s opinion:

On January 15, 1968, James Lawrence, John Mosby, and Ella Washington were seated in Porter’s, a combination bar and pool room, at 2135 Washington Avenue in New Orleans watching a game of pool. Two policemen entered and frisked Lawrence on the grounds that he fit the description of an armed robbery suspect. No contraband or weapons were found on Lawrence’s person. During the frisk, he was questioned by the officers who, upon learning that he was unemployed and had no money arrested him for vagrancy. Washington and Mosby were arrested on the same charge, and the three were placed in a police car for transportation to Central Lockup. Because no police matron was present at the time of arrest, Miss Washington was not searched before entering the vehicle although Mosby was.
At Central Lockup Lawrence, Mosby and Washington were then booked for vagrancy. Either during or after the booking procedure one of the arresting officers searched the police car and found a narcotics “outfit” under the back seat. Since he claimed that he had seen Lawrence take the paraphernalia out of his pants and place it under the seat while the three “vagrants” were in the police car, Lawrence was additionally charged with possession of narcotics.

Lawrence v. Henderson, E.D.La.1972, 344 F.Supp. 1287, 1289-1290. Appellee attempted to subpoena as a witness in his defense Ella Washington, who would have testified that the narcotics “outfit” belonged to her rather than to appellee. The subpoena was sent to the Parish Prison where the witness was awaiting arraignment, but due to an apparent mistake it was not served. Instead, it was returned with the notation, “Subject Does Not Reside Here.”

The district court granted the writ on the basis of its determinations (1) that appellee’s arrest for vagrancy was made without probable cause, (2) that the narcotics paraphernalia should have been excluded from evidence at appellee’s trial as the fruit of an unlawful arrest, and (3) that appellee was denied compulsory process for obtaining a witness in his favor in violation of the Sixth and Fourteenth Amendments.

On appeal appellant contends that the district court erred (1) in failing to rule that appellee’s objection to the admission of the narcotics paraphernalia was untimely, (2) in failing to determine that the discovery of the new pair of pants in appellee’s possession supplied probable cause for his arrest, (3) in failing to overturn Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (4) in failing to rule that appellee’s abandonment of the “outfit” in the police car deprived him of standing under the Fourth Amendment to challenge its admission into evidence, and (5) in concluding that appellee was denied compulsory process to secure a witness in his defense.

Appellant’s first contention — that ap-pellee’s challenge to the admission of the narcotics paraphernalia into evidence came too late — is an argument that the district court should not have considered the constitutional validity vel non of the seizure because the admission of the evidence rested on an adequate independent state procedural ground. Appellee made a pretrial motion to suppress, but that motion was not aimed at the narcotics paraphernalia; only after the trial was in progress did he object to the admission of the “outfit” into evidence;

The defendant here made only one motion to suppress, an oral motion, which sought only to suppress evidence having no connection with this offense. This motion therefore in no respect addressed itself to the narcotics evidence to which the defendant objected when it was proffered at the trial. He did not move to suppress the narcotics paraphernalia; he simply objected, after predicate and foundation had been laid, to the admissibility of these articles as evidence at his trial before the jury. The defendant’s objection under these circumstances came too late to raise the issue of an unconstitutional search and seizure.

State v. Lawrence, 1971, 260 La. 169, 255 So.2d 729, 731-732. Since the Louisiana Supreme Court approved the overruling of appellee’s objection on the theory that it was untimely, State v. Lawrence, supra, 255 So.2d at 732, we will assume that the state trial court’s original ruling was also made on this basis.

If a state evidentiary ruling rests on adequate independent state procedural grounds, the federal courts will not go beyond these grounds to reach the constitutional issues; but “the question of when and how defaults in compliance with state procedural rules can preclude our consideration of a federal question is itself a federal question.” Henry v. Mississippi, 1965, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, rehearing denied 380 U.S. 926, 85 S.Ct. 878, 13 L.Ed.2d 813. To be “adequate” to preclude review of the federal question, the state procedural requirement with which a defendant has failed to comply must be one which “serves a legitimate state interest.” Id., 379 U.S. at 448, 85 S.Ct. at 567. We have no doubt that the rule requiring that motions to suppress be made before the beginning of a trial does serve a legitimate state interest. A similar rule obtains in the federal courts, Fed.R.Crim.P. 41(e), and where a defendant fails to make the motion before trial as required, the district court has discretion to refuse to entertain it at trial. See, e. g., Rosen v. United States, 5th Cir. 1961, 293 F.2d 938. As summarized by the Louisiana Supreme Court, the purposes of the rule are:

to eliminate from the trial before the jury all disputes over police conduct unrelated to the guilt or innocence of the accused; to avoid unwarranted delay of the trial and confusion of the jury; to spare the State as well as the defense the expense of a useless trial in cases where a purely legal determination by the judge alone is required; to avoid the necessity of declaring a mistrial because the jury has been exposed to unconstitutional evidence, with resulting repetitive litigation; and to afford the State and the accused advance knowledge of the rules of evidence which must be followed during the course of the trial.

State v. Lawrence, supra, 255 So.2d at 732; see also Jones v. United States, 1960, 362 U.S. 257, 264, 80 S.Ct. 725, 732, 4 L.Ed.2d 697.

Our determination that the rule generally serves a legitimate purpose does not, however, finally answer the question whether non-compliance in a given case furnishes an “adequate” state ground. In Henry v. Mississippi, supra, the Supreme Court, while recognizing the validity of the Mississippi contemporaneous-objection rule, held it necessary to inquire further whether the purpose of the rule was “substantially served” by the petitioner’s untimely motion in that case. 379 U.S. at 448, 85 S.Ct. at 568. Thus, we should determine in each particular case whether the procedural default committed defeated the purpose of the rule.

In the instant case, the question becomes whether the purpose of the rule requiring that motions to suppress be made before trial when possible was substantially served by appellee’s contemporaneous trial objection. We are persuaded that it was. The facts surrounding appellee’s arrest upon which the motion was based were well developed in the pre-trial suppression hearing, even if that motion was not aimed at the narcotics paraphernalia to whose admission appellee later objected. A ruling on the basis of the facts already developed at the suppression hearing would not have required delay or interruption of the trial. Appellant has not argued, and the record does not suggest, that appellee’s failure to move to suppress earlier resulted from a strategic decision or intentional by-passing of the rule. Under these circumstances the denial of appellee’s later objection on the basis of untimeliness cannot be said to rest on an independent state ground adequate to preclude review of the federal question involved by the federal courts. In the absence of an intentional default strict application of the procedural rule by a trial court to refuse to consider a motion to suppress is generally inappropriate in a case such as this one where the challenged evidence constitutes virtually the whole case against the defendant; refusal to consider the motion deprives defendant of what may often be his only defense. The procedural rule should not be administered to compel an injustice. Cf. Jones v. United States, supra, 362 U.S. at 264, 80 S.Ct. at 733.

Appellant’s second argument— that appellee’s arrest was based on probable cause — does not challenge the district court’s determination that no probable cause existed to arrest appellee for vagrancy, but contends that the police officers’ discovery of the new pair of pants in Lawrence’s possession supplied the probable cause to arrest for theft or receiving stolen property. Possession of new uncuffed trousers still bearing the store label may have aroused the officers’ suspicion, but we agree with the district court that it did not amount to probable cause in itself or in combination with the other information known to the arresting officers.

Appellant’s contention that the district court should have overruled Mapp v. Ohio, supra, is patently frivolous and needs no discussion.

Since we find no error in the district court’s determination that appellee was arrested in violation of his Fourth Amendment rights, appellant’s abandonment argument must also fail. If it is assumed that Lawrence possessed the narcotics paraphernalia at one time, the facts make clear that the illegal arrest prompted him to conceal it in the police vehicle. Under such circumstances it cannot be said that Lawrence voluntarily abandoned the “outfit:” Fletcher v. Wainwright, 5th Cir. 1968, 399 F.2d 62.

Because we think it clear that appel-lee’s arrest was invalid and that admission of the “outfit” into evidence against him was constitutional error, we find it unnecessary to consider the compulsory-process issue.

The judgment of the district court is therefore

Affirmed.

      . As a result of the frisk in the bar, a new pair of trousers was found under Lawrence’s coat but no charges were brought in connection with the pants.

      . When appellee applied for the writ originally, the district court ordered that he be granted an out of time appeal to the Louisiana Supreme Court in order to permit the state court to rule first on the constitutional issues presented. Lawrence v. Henderson, E.D.La.1970, 318 F.Supp. 230. After the Louisiana Supreme Court affirmed appellee’s conviction, State v. Lawrence, 1971, 260 La. 169, 255 So.2d 729, he again applied to the district court, which ordered this time that the writ would issue unless the state chose to vacate the conviction and retry appellee within forty-five days. Lawrence v. Henderson, E.D.La.1972, 344 F.Supp. 1287.


author: BENSON, District Judge.

text:
    Lassie Fay WILKERSON et al., Appellants, v. The CITY OF CORALVILLE, IOWA, et al., Appellees.
    No. 72-1514.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 13, 1973.
    Decided April 30, 1973.
    J. Jane Fox, Iowa City, Iowa, for appellants.
    John P. Sizemore, Iowa City, Iowa, for apellees.
    Before GIBSON and ROSS, Circuit Judges, and BENSON, District Judge.

       Benson, Chief Judge, United States District Court, District of North Dakota, sitting by, designation.

   BENSON, District Judge.

This is an appeal from a summary judgment of dismissal in a class action brought under 42 U.S.C. § 1983.

Appellants (residents) reside in an unincorporated platted area of Johnson County, Iowa, known as Summit Hills. The territory adjacent to and surrounding Summit Hills, with the exception of one small farm, has been annexed by the City of Coralville (Coralville). It is not disputed that the conditions in Summit Hills are as described by the District Court:

“Its 119 lots are owned by 31 persons individually or jointly with their spouses. It contains 11 dwelling houses and two trailers. There are no dedicated public streets or roads. The private roads are not paved, and are not maintained by Coralville or Johnson County. They become impassable in rain or snow. There are no sidewalks or rain gutters. Fire protection is inadequate because of lack of fire hydrants, although the Coralville Fire Department answers calls from that area. The only two street lights are maintained by residents who installed them.
Only three houses have city water. The water supplies and sewage facilities are inadequate and constitute an inconvenience to the residents, and a danger to health, safety and property. There is no trash or garbage pickup in Summit Hills.”

The Iowa Code provides that annexation proceedings may be initiated by resolution of the governing body of the annexing municipality, Section 362.26 (Supp.1972); or by application signed by all of the owners of the territory to be annexed, Section 362.30 (1946); or by petition of 10% of the owners of the territory to be annexed, Section 362.31 (Supp.1972).

In proceedings initiated by Coralville, the voters of the city, on April 19, 1966, approved the annexation of certain territory, which included Summit Hills. On April 1, 1969, the Coralville City Council deleted part of the total annexation package, including Summit Hills. The Johnson County Iowa District Court, on June 23, 1969, entered its judgment which approved the proposed annexation, excluding Summit Hills.

Residents then filed this action in United States District Court for the Southern District of Iowa. Coralville defendants moved for dismissal on the grounds that the complaint failed to state a claim upon which relief could be granted. Matters outside the pleadings were presented without objection, and the Court treated the motion as one for summary judgment. It found the action to be barred by the Iowa Statute of Limitations, but also concluded plaintiffs had presented no cause of action upon which relief could be granted, and entered its summary judgment of dismissal. Residents have taken this appeal as against the Coralville defendants only. Without considering the statute of limitations issue, we affirm on the basis that the complaint fails to state a claim upon which relief can be granted.

Residents, in seeking relief under 42 U.S.C. § 1983, have alleged, in effect, that Coralville and the individual defendants in their representative capacity as officials of Coralville, under color of authority vested in them by the laws of Iowa, discriminated against residents by refusing to annex Summit Hills by reason of the poverty of the residents. They contend that the failure to annex subjects them to discrimination in that it deprives residents of municipal services in violation of their rights under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. They demand affirmative and injunctive relief, and actual and punitive damages.

The basic requirements of a § 1983 complaint are: (1) that complained conduct was under color of state law, and (2) that such conduct subjected plaintiff to a deprivation of rights, privileges or immunities secured by the Federal Constitution and laws. Jones v. Hopper, 410 F.2d 1323 (10th Cir. 1969); Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963); Elmwood Properties, Inc. v. Conzelman, 418 F.2d 1025 (7th Cir. 1969); Morey v. Independent School District, 312 F.Supp. 1257 (D.C.Minn.1969), aff’d 429 F.2d 428 (8th Cir. 1970). The allegations necessary to state a § 1983 claim are not to be held insufficient unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Jones v. Hopper, supra.

For purposes of examining the sufficiency of the complaint, we assume residents could prove Coralville excluded the Summit Hills area from annexation because of the poverty of the residents, and we must determine whether those facts would entitle residents to relief.

The record discloses that the annexation proceedings which resulted in Summit Hills being excluded from annexation were initiated by the governing body of Coralville, and related to a total annexation package of which Summit Hills was but a part. There is no indication that any effort has been made by the owners of the Summit Hills territory to achieve annexation by pursuing the procedures available under the Iowa Code, § 362.30 (1946), or § 361.32 (Supp. 1972) . Residents do not allege, and there is nothing in the record to indicate, that Coralville would be required to extend municipal services to annexed territory, and there is a serious question as to whether this is a proper class action. 3

Overlooking these obvious deficiencies in residents’ case as it comes before this Court, and assuming that the right to municipal services would arise from annexation and that all procedural remedies to achieve annexation had been exhausted, the complaint still fails.

In seeking relief under the Equal Protection Clause, residents are not questioning a classification created by state law, nor have they alleged that a state law impinges upon a substantive right or liberty created by the Constitution. Their claim is simply that the Equal Protection Clause prohibits Coralville from exercising its powers derived under state law from refusing to annex Summit Hills, because the residents thereof are impoverished. Residents’ counsel has expressed it thusly:

“Plaintiffs do not contend that the City of Coralville is required to provide municipal services to persons who are not residents of that city. Plaintiffs contend that the fact they are outside the City of Coralville is an overt act’ of discrimination by Defendants in violation of Plaintiffs’ Civil Rights as guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. It is because Plaintiffs have thus been discriminated against that they do not receive municipal services. Plaintiffs have the right not to be excluded from annexation on the basis of their poverty.” (Emphasis added)

From a search of the Constitution, statutes, cases, and Iowa laws, this Court cannot find the right which residents assert. We find no right of annexation available to anyone, owners or residents, regardless of economic status. Whether Coralville, in the exercise of its powers relating to the annexation of territory, should be permitted to encircle and exclude an impoverished area is a matter of legislative policy for the State of Iowa.

The cases upon which appellants rely relate to poverty as a suspect classification when it results in the denial of the exercise of fundamental rights as in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1955); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

The relative hardships endured by the residents of Summit Hills, by reason of the absence of municipal utilities, evokes concern. However, appellants’ argument in the case before us is not unlike that addressed to the Supreme Court in Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), wherein the Court found the law of the State of Oregon did not violate the Equal Protection Clause. Mr. Justice White, in his opinion for the Court, said:

“Appellants argue, however, that a more stringent standard than mere rationality should be applied both to the challenged classification and its stated purpose. They contend that the ‘need for decent shelter’ and the ‘right to retain peaceful possession of one’s home’ are fundamental interests which are particularly important to the poor and which may be trenched upon only after the State demonstrates some superior interest. They invoke those cases holding that certain classifications based on unalterable traits such as race and lineage are inherently suspect and must be justified by some ‘overriding statutory purpose.’ They also rely on cases where classifications burdening or infringing constitutionally protected rights were required to be justified as ‘necessary to promote a compelling governmental interest.’
We do not denigrate the importance of decent, safe, and sanitary housing. But the Constitution does not provide idicial remedies for every social and nomic ill. We are unable to per- ■> in that document any constitu- ' guarantee of access to dwellings rticular quality or any recogni-he right of a tenant to occupy the real property of his landlord beyond the term of his lease, without the payment of rent or otherwise contrary to the terms of the relevant agreement. Absent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships are legislative, not judicial, functions.” at 73, 92 S.Ct. at 874.

It is . not the province of this Court to create substantive Constitutional rights in the name of guaranteeing equal protection of the laws. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).

Affirmed.

      . The District Court noted the Iowa Statutes provide for financing of most improvements by special assessments. Iowa Code Ann. § 391.45 (1949). It is conceivable that owners do not desire to assume burdens which would be created by extending municipal services to the area which the residents seek.

      . The residents (plaintiffs-appellants) purport to represent all of the residents of Summit Hills. On the record, it is questionable they fairly and adequately represent the interest of all members of the class, or that their claim is typical of the claim of the representative class. We note two of the original plaintiffs-residents withdrew because they no longer wished to be plaintiffs in this action. See Ihrke v. Northern States Power Company, 459 F.2d 566 (8th Cir. 1972) ; Crawford v. Texaco, Inc., 40 F.R.D. 381 (S.D.N.Y. 1966).