author: RONEY, Circuit Judge:

text:
    CHIGLADES FARM, LTD., et al., Plaintiffs-Appellants, v. Earl L. BUTZ, Secretary of Agriculture of the United States of America, et al., Defendants-Appellees.
    No. 72-3451.
    United States Court of Appeals, Fifth Circuit.
    Oct. 10, 1973.

      Nathan Lewin, Washington, D. C., Michael R. Storace, Miami, Fla., for plaintiffs-appellants.
    Robert W. Rust, U. S. Atty., Robert Silverstein, Miami, Fla., M. W. Wells, Orlando, Fla., L. Patrick Gray, III, Asst. Atty. Gen., Judith S. Feigin, Walter H. Fleischer, Dept. of Justice, Washington. D. C., for defendants-appellees.
    Before GOLDBERG, CLARK and RONEY, Circuit Judges.
   RONEY, Circuit Judge:

Appellants have been trying since mid-1967 to do nothing more remarkable than grow and market celery in Florida, and this case concerns their heretofore unsuccessful efforts to achieve this modest goal.

This wailful preface to plaintiffs’ brief would have bewildered the founders of this country. But so far are we now from the freedom of enterprise envisioned by those noble souls that the District Court’s decision denying plaintiffs the right to sow, reap and sell must be affirmed. More precisely, plaintiffs may sow and reap all the celery they wish, but they cannot sell, because the market is regulated by federal law and they have been regulated out. We agree with the District Court that the federal administrative order which denied plaintiffs a share of the celery market is both lawful and constitutional.

To regulate the marketing of celery grown in Florida, the United States Secretary of Agriculture issues “base quantities,” or market shares, to eligible producers. Plaintiffs, having been denied a market quota, brought this action to compel the Secretary to issue Chiglades Farm, Ltd., a base quantity. Alternatively, plaintiffs challenge the marketing system as exceeding the Secretary’s statutory authority, as being unconstitutional, and as violating the antitrust laws. Jurisdiction was invoked under 28 U.S.C.A. § 1331(a) [federal question]; 28 U.S.C.A. § 1361 [to compel a federal officer to perform his duty]; 5 U.S.C.A. § 701 et seq. [judicial review of administrative rulings]; and 15 U.S.C.A. § 4 [antitrust]. The District Court, by summary judgment, held that Chiglades is not entitled to a base quantity and that the Marketing Order-is both lawful and constitutional. We affirm.

The Statutory Program

The Agricultural Marketing Agreement Act, 7 U.S.C.A. § 601 et seq., is designed to establish and maintain orderly marketing conditions for agricultural commodities in interstate commerce. Both to prevent unreasonable price fluctuations and to maintain parity prices, the Act authorizes the Secretary of Agriculture to promulgate marketing orders regulating “handlers” of specified agricultural commodities, including celery. 7 U.S.C.A. § 608c(3), (4). Such orders may provide methods for the limitation of a commodity. Market shares are required to be determined subsequently by a “uniform rule” embracing the production history of each producer.

Pursuant to this Act, the Secretary issued Marketing Order No. 967, 30 Fed. Reg. 14266 (1965), to stabilize the Florida celery market through annual allotments establishing the maximum amount of celery each handler might purchase. For its administration, Marketing Order 967 created the Florida Celery Committee, composed of producers, handlers, and their employees, nominated by groups from different regions of the State. 9 C.F.R. §§ 967.25, 967.26, 967.-28. Each season, the Committee recommends the total amount of celery to be handled, and the Secretary, if necessary, may impose marketing limits to insure the season’s “marketable quantity.” 7 C.F.R. §§ 967.35(a), 967.36(a), 967.13.

Following promulgation of the Order in 1965, each producer was required to register with the Committee and to furnish its sales history since 1958. Producers with no sales during this period were entitled to inclusion if they made “firm and substantial” commitments to produce celery and were engaged in its production prior to September 30, 1965. 7 C.F.R. § 967.37(b). From this data, a “base quantity” was determined.

Marketing Order No. 967 was the result of the Florida Supreme Court’s holding in Rab'in v. Conner, 174 So.2d 721 (Fla.1965), that a state celery marketing order was violative of the State and federal constitutions. Utilizing his rule-making power under the Agricultural Marketing Agreement Act, the Secretary of Agriculture adopted Marketing Order No. 967, similar in many respects to the State order.

The Facts

Chiglades Farm, Ltd. is a limited partnership, of which Leo Bramson and Mai’vin Welfeld are general pax'tners, organized in 1962 to grow celery in a joint venture with A. J. Sullivan of Florida, Inc., a Florida corporation. Ansel J. Sullivan, one of the principals in the corporation bearing his name, was a long-time Florida celery producer and was allocated in 1962 a “base quantity” under the state marketing system. The Joint Venture Agreement provided that the quota held personally by Sullivan would be transferred to the Sullivan corporation, which would receive twenty percent of the net profits and bear no losses. Chiglades was to lease the land, contribute $75,000 for the production of celery, bear any losses, and be entitled to eighty percent of the net profits.

Eugene McCabe, a veteran of the Florida produce business and a member of the Florida Celery Committee, initiated the business venture and was an organizer of the Sullivan corporation. He was also the principal officer of Pioneer Land Company, which leased the farm land to the joint venture, and Pioneer Growers Corporation, which marketed the joint venture’s celery. All records and payments involving the cooperative were in the name of the Sullivan corporation, despite the Joint Venture Agreement’s requirement that the operating bank account be in the joint venture’s name.

In 1965, Ansel Sullivan died, the Florida Supreme Court ruled the state marketing system unconstitutional, and the fedex’al plan was initiated. Pursuant to the new marketing order’s registration requirements, the Sullivan corporation, not Chiglades, applied for and received a quota based on its past production history. Chiglades and Sullivan, Inc. then entered into a new Joint Venture Agreement, reciting that the Sullivan corporation had applied for a federal quota under which the joint venture would operate.

The joint venture was terminated in June, 1967. Chiglades filed with the Florida Celery Committee an application for a new base quantity to be awarded from any reserve established by the Secretary of Agriculture. The application, on the form designed for producers who have no record of celery sales during the base period, listed the joint venture’s production history as its own, and no reference was made to the Sullivan corporation. The following month, the application was denied, and similar efforts seeking a “reserve” base quantity in May, 1969 and 1970, proved unsuccessful after the Secretary determined that no marketing reserve would be established in those years.

In May, 1969, Chiglades filed a quota application based on its alleged production history during the joint venture. After a hearing, both the Department of Agriculture examiner and the Florida Celery Committee concluded that Chi-glades was not entitled to credit for the base quantity issued to the Sullivan corporation. The Secretary of Agriculture upheld this decision on the ground that the limited partnership never produced celery in its own capacity and that the Marketing Order, both as promulgated and as applied, is within the purposes of the Act and is constitutional.

The District Court held that the Secretary’s award of a base quantity to Sullivan, Inc., rather than to Chiglades, was supported by substantial evidence and that, in view of market demands, the Secretary was justified in refusing to issue Chiglades a new quota. The Court held that the Marketing Order was both a proper exercise of the Secretary’s statutory authority and constitutional and that the antitrust laws had not been violated since 7 U.S.C.A. § 608b specifically provides that marketing agreements shall not be held violative of any antitrust laws.

The Base Quantity Assignment

Plaintiffs contend that between 1962 and 1965, Chiglades was the sole “producer” of celery under the joint venture, that it is therefore entitled to the Sullivan corporation’s base quantity or the allocation of a new quota, and that the District Court erred in concluding that the Secretary’s refusal to issue a quota was based on substantial evidence.

Review of administrative proceedings under the Agricultural Marketing Agreement Act is limited by 5 U.S.C.A. § 706. The District Court properly confined itself to a determination of whether the decision rendered by the Secretary was supported by substantial evidence. See 5 U.S.C.A. § 706(2) (E); Watson v. Gulf Stevedore Corp., 400 F.2d 649, reh. denied, 404 F.2d 1059 (5th Cir.), cert. denied, 394 U.S. 976, 89 S.Ct. 1471, 22 L.Ed.2d 755 (1968); Lewes Dairy v. Freeman, 401 F.2d 308 (3rd Cir.), cert. denied, 394 U.S. 929, 89 S.Ct. 1187, 22 L.Ed.2d 455 (1968). The District Court observed that the following facts tended to substantiate the Sullivan corporation’s claim to the base quantity:

1. Sullivan, Inc. possessed a base quantity under the Florida regulation which was subsequently held unconstitutional.

2. A. J. Sullivan had a long history as a producer of celery in Florida.

3. The payroll bank account of the . joint venture was in Sullivan, Inc.’s name, but all money deposited in it came from the account maintained by the joint venture.

4. Pioneer Growers Cooperative, which was the handler for the celery grown by the joint venture maintained its accounts only in the name of Sullivan, Inc., and made payments directly to Sullivan, Inc. It should be borne in mind, however, that Pioneer Growers Cooperative was aware that it was in effect handling celery for the joint venture, since E. A. McCabe was an officer of Pioneer Growers Cooperative, and was also an officer of Pioneer Land Co. which leased the land to Chiglades for the purpose of growing celery under a joint venture agreement with Sullivan, Inc. And although money was paid directly to Sullivan, Inc., it was then transferred into the account maintained by the joint venture for distribution.

5. When Order No. 967 was first promulgated, it was Sullivan, Inc., and not Chiglades nor the joint venture that made application to the Florida Celery Committee for a base quantity.

6. The joint venture agreement provided that Sullivan, Inc. was to obtain a base quantity, and no mention was made as to a base quantity being taken in the name of or owned by the joint venture.

Chiglades’ claim rests on the following evidence:

1. Chiglades was the dominant contributor to the joint venture and was entitled to a substantially greater share of the profits than Sullivan, Inc.;

2. All the land used for the production of celery was leased by Chi-glades from Pioneer Land Co.;

3. All initial funds for operation of the joint venture were supplied by Chiglades;

4. Sullivan, Inc. originally supplied the equipment, but Chiglades was to be responsible for all additional equipment needed. After A. J. Sullivan’s death, Chiglades purchased all the equipment from his estate; and so Chiglades eventually owned all the farming equipment;

5. All losses incurred by the joint venture were to be borne in full by Chiglades. The 1962 agreement provided that profits were to be divided 80 percent to Chi-glades and 20 per cent to Sullivan, Inc. The 1965 agreement divided profits 92% per cent to Chiglades and 7% per cent to Sullivan, Inc. A. J. Sullivan was to assign all his shares in Sullivan, Inc. to Chi-glades as a pledge for his performance under the ■ Joint Venture Agreement, but he never did so.

Weighing these facts, the District Court concluded that the Secretary’s decision that the base quantity should remain with the Sullivan corporation was neither arbitrary, capricious, nor unsupported by substantial evidence. We agree.

First, Chiglades was not clearly a producer under the Marketing Order’s definition or within its criteria for entitlement to a base quantity. Under the Marketing Order,

“Producer” means any person who grew or grows celery in the production area in a proprietary capacity. The person with the right to sell celery so that handlers may purchase from such person or may handle on such person’s behalf is in fact a producer. In sharecropping arrangements, such person receiving a share of the crop with authority to pass title thereon is a producer of the celery he owns. A renter with full right to dispose of a celery crop by passing clear title is a producer.

30 Fed.Reg. at 13710.

The Sullivan corporation made all sales, received all proceeds, supplied most equipment, and made production commitments for the partnership. Chi-glades neither had any history of celery production in the 1965-1966 or earlier seasons nor had made, prior to September 30, 1965, any “firm and substantial” .commitments for such production, as required for designation as a “producer” under the Order. 7 C.F.R. § 967.37. We find no support for extending to a limited partnership or its partners the characteristics required to meet the Marketing Order’s definition of “producer.”

Second, the same factors which support the Secretary’s finding that Chi-glades did not qualify as an independent producer in 1965 also provide substantial evidence for the determination that Chiglades did not have a history of celery production in prior seasons. In fact Chiglades was not in existence during some of the years considered in granting the quota to the Sullivan corporation.

Third, there is no evidence to show that Chiglades sought to assert any claims to producer status in 1965 when the Sullivan corporation was awarded its base quantity. Applicants for a base quantity in the initial 1965-1966 season were required to file by December 20, 1965, a deadline not met by plaintiffs. Only after dissolution of the joint venture did Chiglades first assert a proprietary interest in the celery. We can only conclude from these facts that Chiglades determined in 1965, under a theory or pretext irrelevant to this suit, that the Sullivan corporation’s obtaining a quota for the joint venture would be in the limited partnership’s bést interests.

Fourth, under the terms of the Joint Venture Agreement, the base quantity was retained by the Sullivan corporation and never passed either to Chiglades or the limited partnership.

Fifth, since plaintiffs seek issuance of a new quota if it is determined that the Sullivan corporation is entitled to the one in question, we are directed to the Marketing Order’s provisions for reserve quotas. 7 C.F.R. § 967.37(d)(1). The District Court found that “[s]ince present and past demand for celery has been limited, an increase in the total base quantities for the industry [permitting issuance of a reserve quota] is currently unwarranted,” and the Secretary’s refusal to grant one met the substantial evidence standard.

Conformity With the Agricultural Marketing Agreement Act

Plaintiffs’ contention that Marketing Order No. 967 is invalid because it exceeds the authority granted the Secretary of Agriculture by the Agricultural Marketing Agreement Act rests on three premises: (1) the Marketing Order assigns production quotas rather than regulating distribution as authorized by the Act, (2) the allocation method is unreasonable, and (3) the base quantity system excludes new growers from the industry. Finding no merit to any of these arguments, we find the Marketing Order to be a valid exercise of the Secretary’s statutory authority.

First, the District Court noted that, notwithstanding the exemption of producers from regulation, 7 U.S.C.A. § 608c(13)(B), “[w]hen the Secretary formulates a rule based upon prior production history as to the amount each handler may handle from each producer, a scheme of quotas arises whereby the producer is as regulated as a handler.” The Court sanctioned such indirect regulation, however, on the ground that § 608c “does not actually regulate producers in their capacity as producers.”

To justify the Marketing Order, the Secretary of Agriculture distinguished between the permissible regulation of the amount which a producer may sell to a handler and the prohibited regulation of the amount a producer may grow. Although no appellate court decisions concerning this distinction’s application to the Agricultural Marketing Agreement Act have been brought to our attention, the Supreme Court has found such a distinction valid under the Agricultural Adjustment Act. In Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092 (1939), where petitioners challenged marketing quotas apportioned to tobacco farms subject to penalties on warehousemen who marketed tobacco in excess of any farm’s quota, the Court, upholding the regulatory system, found that “[t]he statute does not purport to control production. It sets no limit upon the acreage which may be planted or produced and imposes no penalty for the planting and producing of tobacco in excess of the marketing quota.” 307 U. S. at 47, 59 S.Ct. at 652.

Similarly, the Florida celery producer is not limited to growing any maximum amount. It is only the marketing of his produce that is regulated and that is the precise statutory objective of the Agricultural Marketing Agreement Act, under which the Celery Marketing Order was promulgated. It cannot be said, therefore, that the Secretary of Agriculture exceeded his authority in promulgating an order affecting production only indirectly while regulating the industry’s marketing.

Second, plaintiffs argue that, contrary to the dictates of 7 U.S.C.A. § 608c (6)(B) that base quantities be apportioned “equitably among producers”, the Marketing Order provisions for the allocation of quotas according to production history are based on unrepresentative periods. A similar contention was rejected by the Supreme Court in Sec’y of Agriculture v. Central Roig Refining Co., 338 U.S. 604, 70 S.Ct. 403, 94 L.Ed. 381 (1950), where the Court upheld the Secretary’s. allotment of sugar quotas under the Sugar Act of 1948, 7 U.S.C.A. § 1100 et seq.

In Central Roig Refining Co., the Court examined another quota system founded on past market share and acknowledged that “[fixing] quotas on a strict historical basis is hard on latecomers into the industry . . . . ” 338 U. S. at 617, 70 S.Ct. at 410. But the

Court concluded that

since Congress fixed the quotas on a historical basis it is not for this Court to reweigh the relevant factors and, perchance, substitute its notion of expediency and fairness for that of Congress. This is so even though the quotas thus fixed may demonstrably be disadvantageous to certain areas or persons. This Court is not a tribunal for relief from the crudities and inequities of complicated experimental economic legislation.

338 U.S. at 618, 70 S.Ct. at 410.

The celery marketing system does not employ a rigid historical base period. Congress specifically provided that allotments may be based, at the Secretary’s discretion, upon the amounts sold by producers in such period as the Secretary determines to be representative or upon the current quantities available for sale or both. See 7 U.S.C.A. § 608c(6)(B). As noted above, producers with no sales during the period determined to be representative are entitled to base quantities if they made “firm and substantial production commitments and were engaged in production prior to a designated date.” 7 C.F.R. § 967.-37(b).

Third, the base quantities are not, as plaintiffs allege, “perpetual transferrable licenses” which operate to preclude entry of new producers into the industry. New producers may obtain quotas in either of two ways: (1) producers, with the Celery Committee’s approval, may transfer all or part of their allotments, see 7 C.F.R. § 967.39, and (2) new quotas may be issued from the reserve amount established by the Secretary of Agriculture in any season, see 7 C.F.R. § 967.37(d)(1). Only the Secretary, not the present producers or their marketing committee, has the power to preclude entry of new growers in the industry. 7 C.F.R. §§ 967.37(d)(1), 967.-37(d)(3).

Admittedly, no reserve quotas have been issued since promulgation of the Order, but the Secretary contends that his refusal to issue a new quota is consistent with the objectives of the Agricultural Marketing Act since there has been no increased demand for celery. Furthermore, if he deems the Marketing Order not to be in furtherance of the Act’s policy, he is empowered to terminate the program. 7 U.S.C.A. § 608c(16)(A). Thus, the Order does not preclude entry of new producers into the industry and does not confer “perpetual licenses” on any group of producers.

Constitutional Questions

Plaintiffs argue that (1) Marketing Order No. 967 is unconstitutional for the reasons the Florida Celery Order was struck down in Rabin v. Conner, supra, and (2) they were deprived of due process by the composition and authority of the Florida Celery Committee. Neither of these constitutional claims is valid.

First, although the Florida Celery and Sweet Corn Marketing Law, Ch. 573, F.S.A. (1959) found unconstitutional by the Florida Supreme Court in Rabin, was similar in objectives and mechanics to the federal Marketing Order, there is one crucial difference. Under the Florida system, permanent base quantities could be changed only by amending the orders. Reserve quotas not to exceed 2%% of the permanent allotments could be issued to new producers each year, but no producer could be assigned more than 25% of the 2%% total reserve amount. Only after three successive years of production under reserve quotas could a new producer be issued a permanent base quantity, and that would be equal to the average number of crates sold by him during his production years.

Thus, it was impossible for a new producer ever to be assigned a quota competitive in volume with older producers. The Florida Court, viewing the system as an arbitrary exercise of the State’s police power, reasoned that

[i]t is inescapable that the effect of the marketing order is to draw an unjust and discriminatory distinction between those who were producers during the representative period and those who were not. Such a classification, for which we can find no justification in any legitimate public policy, amounts to an arbitrary exercise of the state’s police power so as to constitute a taking of property without due process of law and a denial of equal protection of the law. So viewed, the marketing order is violative of Sections 1 and 12, Declaration of Rights, Florida Constitution and the Fourteenth Amendment to the United States Constitution.

174 So.2d at 725. The federal regulatory system has no such impediment to a new producer’s gaining a share in any increase in the celery market.

In view of the aforementioned distinction between the Florida and federal-systems, the Florida -Supreme Court’s reasons for finding the state plan unconstitutional do not pertain to the ease at bar. Moreover, the Florida court did not decide “the more basic question of whether the state, in the exercise of the police power, may or may not regulate the quantity of celery which may be sold by or handled for producers . . . . ” The court concluded that it was “unnecessary that we do so because . we find the manner of regulation employed . . . to be invalid . . . . ” 174 So.2d at 725-726. Thus, plaintiffs can find no broader constitutional support for their position in Rabin v. Conner, supra.

Second, plaintiffs complain that the composition of the Florida Celery Committee vests control of the industry in a group of self-interested producers and. thereby deprives them of due process of law. It is argued that, despite the Secretary’s ultimate authority, he exercises no independent judgment. The District Court agreed that “their motivation, at least in part, stems from self-interest,” but noted that it is the Secretary

1. Who actually selects committee members.

2. To whom recommendations and complaints are made.

3. Who limits the total celery to be handled during a marketing season.

4. Who sets aside a reserve for those persons who desire to increase their base quantity or who háve no base quantity.

5. Who issues other regulations to effectuate the policy of the marketing order.

6. Who hears and passes on all appeals from orders of the Florida Celery Committee.

The Court concluded, therefore, that the checks on the Committee’s powers are effective, and we agree.

Congress has approved the use of such producer-controlled committees on the theory that the most sound decisions will result from permitting those in the area with the greatest knowledge of the industry’s needs to make recommendations to the Secretary. See, e. g., Sen.Rep. No. 566, 87th Cong., 1st Sess., p. 39, 2 U.S.C.C.A.N., 87th Cong., 1st Sess., pp. 2243, 2281. This Court, upholding producer committees in the citrus industry in Whittenburg v. United States, 100 F.2d 520 (5th Cir. 1939), found that

[ajction taken is always that of the Secretary. These others [producers] gather and present information to give him a broader view of the situation. Their concurrence gives his action support and tends to assure its enforcement. But they have no actual power.

100 F.2d at 523.

We recognize that McCabe, whom plaintiffs portray as the culprit in their lack of success, is a member of the Florida Celery Committee and this fact highlights the potential for abuse that is implicit in any self-regulatory body. Mc-Cabe, nevertheless, abstained from voting on the Chi glades application for a base quantity, and any arbitrariness of the Committee’s decisions fails to meet constitutional dimensions.

Antitrust Problems

Under 7 U.S.C.A. § 608b,

The making of any such [marketing] agreement shall not be held to be in violation of any of the antitrust laws of the United States, and any such agreement shall be deemed to be lawful.

Plaintiffs maintain that, insofar as Marketing Order No. 967 exceeds its statutory authority, this antitrust immunity is inapplicable. Having found no abuse of authority, however, we must conclude that the immunity is undisturbed. Where such total immunity is granted, there can be no violation of the antitrust laws. See Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973).

Affirmed.

      . “Handlers” are defined in the Act as “processors, associations of producers, and others engaged in the handling of any agricultural commodity or product thereof” specified in the Act. 7 U.S.C.A. § 608c (1).

      . Throughout this litigation, plaintiffs have alleged extensive illegal and unethical conduct by McCabe. According to their account of the facts, McCabe suggested the joint venture to Bramson and offered to “resurrect” Ansel Sullivan’s celery quota. Mc-Cabe, personally and through Horace Unwin, the bookkeeper of Pioneer Growers Cooperative and A. J. Sullivan of Florida, Inc., then arranged the joint venture’s affairs to his best interest.
      The operation of the venture was left practically entirely to McCabe. Contrary to the Joint Venture Agreement, its bank account was under the Sullivan corporation’s name. McCabe and Unwin obtained control of the Sullivan corporation without informing any of the Chiglades partners; and after the federal quota system was introduced, McCabe urged Bramson that application for a base quantity should be in the Sullivan corporation’s name. Although he abstained from voting, McCabe also was one of the five members of the Florida Celery Committee’s Marketing Subcommittee which issued the base quantity in 1965 to thq Sullivan corporation. As this statement of facts relates, the joint venture was terminated when Bramson first learned of McCabe’s personal interest in the Sullivan corporation.
      These allegations, depicting the subject events in light of McCabe’s self-dealing, are not central to the issues posed by this appeal and were addressed by two state actions filed by Chiglades. In the first, brought on the theory that McCabe owed a fiduciary obligation to the partnership, summary judgment was granted for McCabe on the ground that a limited partner lias no fiduciary duty to the partnership. The second action, to compel the Sullivan corporation to proceed with the joint venture bv permitting the base quantity to be used by Chiglades on land other than that owned by the Pioneer Land Company, was terminated by voluntary dismissal. A final order of dissolution of the Chiglades partnership, at McCabe’s initiative, was entered on April 21, 1970.

      . 5 U.S.C.A. § 706 provides the following scope of review:
      To decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.

      . To demonstrate its “proprietary capacity,” Chiglades relies on irrelevant authority. See, e. g., Owen v. Comm’r, 192 F.2d 1006 (5th Cir. 1951), and Irrgang v. Fahs, 94 F.Supp. 206 (S.D.Fla.1950) [involving the taxation of gains from sales of unsevered fruit]; Adams v. Adams, 158 Fla. 173, 28 So.2d 254 (1946) [involving estate problems relating to citrus crops].

      . Plaintiffs argue that they had been supplied the wrong forms and allege that Mc-Cabe’s deceits were responsible for the continued reliance on the Sullivan corporation for a base quantity. These contentions are not responsive to the Secretary’s requirement that all past or current producers in 1965 themselves apply under the new federal marketing system.

      . Allotting, or providing methods for allotting, the amount of such commodity or product, or any grade, size, or quality thereof, which each handler may purchase from or handle on behalf of any and all producers thereof, during any specified period or periods, under a uniform rule based upon the amounts sold by such producers in such prior period as the Secretary determines to be representative, or upon the current quantities available for sale by such producers, or both, to the end that the total quantity thereof to be purchased, or handled during any specified period or periods shall be apportioned equitably among producers. 7 U.S.C.A. § 608c(6) (B).


source: Caselaw Access Project

author: DYER, Circuit Judge:

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. WEINGARTEN, INC., Respondent.
    No. 73-1891
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 9, 1973.
    Elliott Moore, Acting Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Louis Y. Baldwin, Jr., Director, Region 23, N. L. R. B., Houston, Tex., for petitioner.
    Neil Martin, Houston, Tex., for respondent.
    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.

   DYER, Circuit Judge:

The National Labor Relations Board, pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C.A. § 160 (e), seeks.enforcement of its order finding that J. Weingarten, Inc., violated section 8(a)(1) of the NLRA, 29 U.S.C.A. § 158(a) (1), by refusing to allow a union representative to be present at an investigatory interview with an employee. We conclude that, under the facts found by the Administrative Law Judge, there was no legal requirement for a union representative to be present and accordingly we.deny enforcement of the Board’s order.

I.

The facts are essentially undisputed. Weingarten operates a series of retail stores and Leura Collins has been employed by the company in its lunch counter or “lobby department” at store # 98. In mid-June 1972, Don Hardy, a loss prevention specialist working for Weingarten, was asked to observe Collins to determine whether reports of her stealing from the store were true. Hardy observed nothing unusual during a day and one-half at the store, but he did learn from Joe York, the manager of store # 98, that another employee, Jewel Moody, had reported a theft by Collins the previous day. When this report was verified with Moody, Hardy and York called Collins to a meeting in the employee’s lounge at a time when no one else was present.

At the meeting Collins was confronted with the charges of theft. She denied any wrongdoing and offered an apparently plausible explanation for her actions. She also asked either “Shouldn’t the Union be in on this?” or “Could I have Billie [the Union representative] with me ?” Whatever the exact question, the response in essence was, “No, this is a private matter.” A short time later, Collins’ explanation was verified and she was told that the matter was closed.

When told this, Collins became emotional and stated that the only things she had ever taken from Weingarten were her free lunches. This revelation came as a surprise to both York and Hardy who believed that this was directly contrary to store policy. They began questioning Collins again to determine the scope of this practice. Faced with the reopening of the interview, she again requested the presence of the Union steward and was again told that the interview was a private matter. The interview finally ended when Hardy learned that employees at some Weingarten stores did in fact get free lunches and that the policy was unclear at store # 98. Collins was given the rest of the day off and was told not to discuss the matter with anyone.

II.

The Board asserts that the interview, in which it found Collins had reason to fear for her job, was a proper place for union representation and argues that the denial of that representation constituted an 8(a)(1) violation. Its position is based on the decisions in Quality Manufacturing Co., 1972, 195 N.L.R.B. No. 42, 79 LRRM 1269, and Mobil Oil Corp., 1972, 196 N.L.R.B. No. 144, 80 LRRM 1188, and is best stated in the following passage from Mobil:

An employee’s right to union representation upon request is based on Section 7 of the Act which guarantees the right of employees to act in concert for “mutual aid and protection.” The denial of his right has a reasonable tendency to interfere with, restrain, and coerce employees in violation of Section 8(a)(1) of the Act. Thus, it is a serious violation of the employee’s individual right to engage in concerted activity by seeking the assistance of his statutory representative if the employer denies the employee’s request and compels the employee to appear unassisted at an interview which may put his job security in jeopardy. Such a dilution of the employee’s right to act collectively to protect his job interests is, in our view, unwarranted interference with his right to insist on concerted protection, rather than individual self-protection, against possible adverse employer action.

Id. at 1191.

The company responds on two fronts. First they argue that Collins did not make sufficiently clear her requests for union representation and that her continuation with the interview after her requests were denied constituted permission for the interview. Secondly, they question the merits of the legal rule advanced by the Board in Mobil and Quality, and argue that the proper rule was established by this Court in Texaco, Inc., Houston Producing Division v. NLRB, 5 Cir. 1969, 408 F.2d 142.

HI.

As a preliminary matter, we conclude from a careful reading of the record that Collins adequately raised the question of union representation and we know of no rule that would require her to halt the interview completely in order to be able to raise before the Board and this Court the question of her right to that representation. Consequently, we face squarely the question decided by the Board in Mobil and Quality, and reject the rule enunciated there. Our conviction in this regard is strengthened by the recent opinions of the Seventh and Fourth Circuits which denied enforcement of the comparable portions of the Board’s orders in Mobil and Quality. Mobil Oil Corp. v. NLRB, 7 Cir. 1973, 482 F.2d 842; NLRB v. Quality Manufacturing Co., 4 Cir. 1973, 481 F.2d 1018.

Our inquiry into the merits must initially focus on the nature of the confrontation between Collins on the one hand and York and Hardy on the other. There has been no suggestion that the meeting was anything other than a preliminary fact-finding interview. Indeed the Board in its brief before this Court consistently refers to the meeting as an investigative interview. As we said in our Texaco decision on related facts, there is no evidence that the company sought to deal with the employee about the consequences of her misconduct: “ [t] he function of the interview was to question [the employee], not to bargain with [her].” 408 F.2d at 144.

With the interview thus defined, it is not surprising that the company seeks to rely on a long line of Board decisions, each of which indicates — either directly or indirectly — that no union representative need be present. See, e. g., Illinois Bell Telephone Co., 1971, 192 N.L.R.B. No. 138; Texaco, Inc., Los Angeles Terminal, 1969, 179 N.L.R.B. 976; Wald Manufacturing Co., 1970, 176 N.L.R.B. 839, aff’d, 6 Cir. 1970, 426 F.2d 1328; Dayton Typographic Service, Inc., 1969, 176 N.L.R.B. 357; Jacobe-Pearson Ford, Inc., 1968, 172 N.L.R.B. No. 84; Chevron Oil Co., 1967, 168 N.L.R.B. No. 574; Dobbs Houses, Inc., 1964, 145 N.L.R.B. 1565. See also NLRB v. Ross Gear & Tool Co., 7 Cir. 1947, 158 F.2d 607. The Board does not expressly repudiate those decisions, but attempts to distinguish them by finding a violation of Collins’ section 7 rights by virtue of the nature of the investigative interview.

In addition to its own precedent, the Board is well aware that it must distinguish the Fifth Circuit Texaco case or that decision would be binding precedent upon us, absent en banc reconsideration. In Texaco, the Board’s order, which found both an 8(a)(1) and an 8(a)(5) violation, was denied enforcement when we found no requirement for union representation at an' investigative interview. The Board contends that that case was essentially a “refusal to bargain” case which did not put at issue any other section 7 rights. This contention was considered by the Fourth Circuit in Quality and rejected by the following language, which we adopt in full.

Every situation wherein an employee is directed by management to cooperate in an investigatory interview carries the implicit threat of discipline if such direction is not obeyed. And the statement that a particular Section 7 right [the right to act in concert for mutual aid and protection] mentioned in the above quotation had not been previously considered is inaccurate when examined in the context of the case before us. As illustrated by the cases cited in this opinion, the Board has many times been confronted with an alleged violation of Section 8(a)(1) in the context of a denial of union representation at employer-employee interviews. By necessary implication, Section 7 rights have been at issue in each of these cases. Yet never has it been thought, as the Board would hold here, that such rights require an employer to permit an employee to have a union representative present whenever the employee “has reasonable ground to fear that the interview will adversely affect his continued employment, or even his working conditions.”

481 F.2d at 1024 (footnote omitted).

The crux of this case thus hinges on a proper interpretation of section 7 of the NLRB. The Board centers its argument on the language guaranteeing employees the right to act in concert for mutual aid and protection. This right is triggered, it contends, when an employee being interviewed has a reasonable basis for believing that his job is in jeopardy. Thus it concludes that a denial of requested representation at that point constitutes a violation of section 8(a)(1). We disagree.

While a basic purpose of section 7 is to allow employees to engage in concerted activities for their mutual aid and protection, such a need does not arise at an investigatory interview. To extend the scope of the Act’s protection to such preliminary contacts between an employee and his employer would be to - apply an overbroad interpretation to section 7. We follow the Seventh Circuit’s decision in Mobil, supra,, but we find it unnecessary at this time to approve or disapprove that part of the opinion (see 482 F.2d 842) which placed great emphasis on the economic pressure function of section 7. We believe that an investigatory interview would be a premature stage at which to invoke a requirement of union representation in the absence of some showing that the purpose of the interview was not merely to elicit facts concerning employee conduct but to impose disciplinary measures upon the employee so that grievance hearings later on would merely put the seal on the employer’s prejudgment.

This interpretation of the scope of section 7 is consistent with our decision in Texaco and agrees with the conclusions of the Fourth and Seventh Circuits.

Enforcement denied.

      . Section 7 of the NLRA, 29 U.S.C.A. § 157, provides:
      Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a) (3) of this title.

      . Section 8(a)(1), 29 U.S.C.A. § 158(a)(1) provides that it shall be an unfair labor practice for an employer, “to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in section 157 of this title [section 7].”


author: DUNIWAY, Circuit Judge: GOODWIN, Circuit Judge

text:
    James DAVIS, Plaintiff-Appellee, v. Walter E. CRAVEN, Defendant-Appellant.
    No. 71-2813.
    United States Court of Appeals, Ninth Circuit.
    Sept. 11, 1973.

      James B. Cuneo, Deputy Atty. Gen. (argued), Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, Cal., for defendant-appellant.
    Thomas J. Graff (argued), Environmental Defense Fund, Berkeley, Cal., for plaintiff-appellee.
    Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN and WALLACE, Circuit Judges.
   OPINION

DUNIWAY, Circuit Judge:

The State of California (acting^ through its warden) appeals from an order granting a writ of habeas corpus on behalf of James Davis, a prisoner serving a sentence for first-degree robbery and assault with intent to commit murder.

At the close of Davis’ trial in the state court, the judge said:

“It is the opinion of this Court, based on the evidence that we have heard in this case, that the guilt of the Defendant in this case has been proved beyond reasonable doubt as to each of the counts in the Indictment. I would caution you that it is your right and your duty to exercise the same independence of judgment in weighing the Judge’s comments on the evidence as you are entitled to exercise in weighing the testimony of the witnesses and the arguments of counsel.
“You will keep in mind that you are the exclusive judges of the credibility of the witnesses and of all questions of facts submitted to you. Such authority as the trial Judge has to express his personal thoughts on any of these matters is confined to the sole purpose of aiding you in arriving at a verdict and may not be used and is not used in this ease to impose his will upon you or to compel a verdict.”

The jury found Davis guilty.

The conviction was affirmed on appeal. People v. Davis, 1968, 260 Cal.App.2d 211, 67 Cal.Rptr. 35, cert. denied, 1968, 393 U.S. 890, 89 S.Ct. 210, 21 L.Ed.2d 169. Citing People v. Brock, 1967, 66 Cal.2d 645, 58 Cal.Rptr. 321, 426 P.2d 889, a decision of the California Supreme Court disapproving an almost identical instruction, the state appellate court held that the trial judge’s comment on Davis’ guilt was error under California law, but that the error was harmless.

After unsuccessfully petitioning the state courts for a .writ of habeas corpus, Davis turned to the federal courts. In the federal habeas corpus proceedings, the district court held that “[jjudicial comment to the jury, reflecting the court’s view that the defendant was guilty, is prima facie an unconstitutional deprivation of the due process right of fundamental fairness.” We disagree and reverse.

In Gonsior v. Craven, 9 Cir., 1971, 449 F.2d 20, we dealt with an almost .identical instruction, given in a California criminal case. We declined to hold that the instruction deprived the defendant-petitioner of due process of law. In the present case, we ordered a hearing in banc to consider whether Gonsior was correctly decided, or should be overruled. We conclude that Gonsior was correctly decided, is dispositive of this case, and should not be overruled. We do not favor “constitutionalizing,” and thus imposing on the states, the result reached in United States v. Murdock, 1933, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381.

Murdock is the only Supreme Court decision brought to our attention that involved a comparable instruction to that given by the judge in Davis’ case. Here is the instruction in Murdock:

“So far as the facts concerned in this case, gentlemen of the jury, I want to instruct you that whatever the Court may say as to the facts, is only the Court’s view. You are at liberty to entirely disregard it. The Court feels from the evidence in this case that the Government has sustained the burden cast upon it by the law and has proved that this defendant is guilty in manner and form as charged beyond a reasonable doubt.” (290 U.S. at 393, 54 S.Ct. at 225)

And here is the Supreme Court’s ruling:

“In the circumstances we think the trial judge erred in stating the opinion that the respondent was guilty beyond a reasonable doubt. A federal judge may analyze the evidence, comment upon it, and express his views with regard to the testimony of witnesses. He may advise the jury in respect of the facts, but the decision of issues of fact must be fairly left to the jury, Patton v. United States, 281 U.S. 276, 288, [50 S.Ct. 253, 74 L.Ed. 854]; Quercia v. United States, 289 U.S. 466, [53 S.Ct. 698, 77 L.Ed. 1321], Although the power of the judge to express an opinion as to the guilt of the defendant exists, it should be exercised cautiously and only in exceptional cases. Such an expression of opinion was held not to warrant a reversal where upon the undisputed and admitted facts the defendant’s voluntary conduct amounted to the commission of the crime defined by the statute. Horning v. District of Columbia, 254 U.S. 135, [41 S.Ct. 53, 65 L.Ed. 185]. The present, however, is not such a case, unless the word ‘willfully,’ used in the sections upon which the indictment was founded, means no more than voluntarily.” (290 U.S. at 394, 54 S.Ct. at 225 emphasis added.)

The Court then proceeded to hold that actual wrongful intent was an element of the crime, that as to this the evidence was in conflict, and that therefore there was error.

The emphasized language and the citation,, without disapproval, of Horning v. District of Columbia, both indicate that, in exceptional cases, an instruction such as was given in Davis’ case is not error at all. A fortiori, it is not an error of constitutional dimension under the Constitution o,f the United States.

We know of no decision of the Supreme Court since Murdock that elevates the Murdock rule to constitutional status. Certainly Parker v. Gladden, 1966, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420, does not. That case involved unauthorized tampering with the jury by a bailiff, unknown to the court or the parties, which is quite different from what happened in Murdock and in Davis’ case. In Parker there was no opportunity for the court to correct it. Moreover, as the Court pointed out in Parker (p. 364, 87 S.Ct. 468), the bailiff’s statement amounted to testimony received by the jury, not in open court, not subject to confrontation or cross-examination or any other safeguards of a trial. Contrast that situation with what was done by the judge here. He expressed his opinion of the evidence, in open court, and accompanied it with a clear and direct statement that it was only an opinion and did not bind the jury and that the jury was free to disregard it and find the other way.

Nor can we read Parker as establishing the proposition that any error which can be said to go “to the fundamental process of assessing and evaluating evidence” is a violation of due process. This is a jump that we cannot make. For obvious reasons, it is not the job of a bailiff to provide the jury with evidence, or to decide what evidence a jury may or may not hear, or to aid them in evaluating the evidence. However, the latter is precisely a role of the trial judge; indeed, the Supreme Court has long held that this judicial function is part of the fundamental nature of a trial by jury as guaranteed by the Federal Constitution.

In Murdock, the Court cites Patton v. United States, 1930, 281 U.S. 276, 288, 50 S.Ct. 253, 74 L.Ed. 854. In Patton, at the cited page 288, 50 S.Ct. page 254, the Court defines a trial by jury as in-eluding three elements, the second of which is:

“(2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them in respect of the facts;” (emphasis added.)

The Court in Murdock also cites Querica v. United States, 1933, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321. In that case, at p. 469, 53 S.Ct. at p. 699, the Court quotes Sir Matthew Hale:

“ ‘Herein he [the judge] is able, in matters of law emerging upon the evidence, to direct them [the jury]; and also, in matters of fact to give them a great light and assistance by his weighing the evidence before them, and observing where the question and knot of the business lies, and by showing them his opinion even in matters of fact; which is a great advantage and light to laymen.’ Hale, History of the Common Law, 291, 292. Under the Federal Constitution the essential prerogatives of the trial judge as they were secured by the rules of the common law are maintained in the federal courts.”

The trial judge in Davis’ case did just what Hale and the Supreme Court say that he may do. It would be incongruous to hold that error in performing this valuable function violates the Federal Constitution.

This is not to say that judicial mistakes by state judges can never rise to' the level of federal constitutional error. That such instances can occur is illustrated by Braley v. Gladden, 9 Cir., 1968, 403 F.2d 858, but that case is no more in point here than Parker v. Gladden, supra, Braley arose from an Oregon prosecution for murder. Under Oregon law, to convict of murder in the first degree, a unanimous verdict was required. For lesser included offenses, a 10 to 2 verdict sufficed. The judge so informed the jury. To acquit a 10 to 2 verdict also sufficed. The judge, however, did not tell the jury that. Moreover, while the jury received forms for guilty verdicts, it received none for acquittal. This was done in the context of an instruction as to the sufficiency of a 10 to 2 verdict of conviction, reading: “Just one verdict which requires your verdict to be unanimous out of all the verdicts I have submitted to you.” (403 F.2d at 859-860.) We held that this performance deprived Braley of due process. One of the elements of due process in the context of a jury trial is a knowledge by the jury that it may acquit, and of how it may acquit. In Braley, we said that what happened “constituted, in effect, a severely adverse comment by the trial judge, an impermissibly grave insinuation of judicial attitude toward the issue of guilt or innocence.” (Emphasis added.) Read in context, this is hardly a holding that any comment indicating a state judge’s attitude toward the issue of guilt or innocence violates the Federal Constitution. In Braley the trial judge did nothing to counteract the “insinuation of judicial attitude” that we found in what happened. In Davis, on the other hand, after making his comment, the trial judge made it clear to the jury that it was only a comment,

that it was up to the jury to come to its own conclusion, and that the jury was entirely at liberty to disregard the comment.

United States ex rel. De Lucia v. McMann, 2 Cir., 1967, 373 F.2d 759, is likewise not in point. It involved the taking of an unauthorized view of the scene of the crimes by some members of the jury. As in Parker, supra, this was the reception of evidence by jurors ex parte and without any of the safeguards of a trial. The case is no more in point than is Parker, on which it expressly relies.

We find no federal constitutional error here.

Our holding makes it unnecessary to consider the state’s further argument that the error, if of constitutional dimension, was harmless beyond a reasonable doubt under Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and its progeny.

The order appealed from is reversed.

GOODWIN, Circuit Judge

with whom Judges Merrill, Browning, Ely and Hufstedler concur (dissenting):

While I agree that it is unwise unnecessarily to give constitutional status to rules of procedure which have commended themelves to one or more federal courts, I believe the judge’s comment in this case was at least as much of a threat to the fairness of the trial as were the judicial errors and omissions which were found to be constitutionally fatal in such cases as Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966); Braley v. Gladden, 403 F.2d 858 (9th Cir. 1968); and Naughten v. Cupp, 476 F.2d 845 (9th Cir. 1972), cert. granted, 411 U.S. 947, 93 S.Ct. 1926, 36 L.Ed.2d 408 (1973). Further, by not overruling Gonsior v. Craven, 449 F.2d 20 (9th Cir. 1971) while en banc, we are leaving undone a piece of work that will have to be done later.

Accordingly, I dissent.

      . There are several Circuit Court decisions that follow Murdoch; e.g., United Stales v. Woods, 2 Cir., 1958, 252 F.2d 334; United States v. England, 7 Cir., 1965, 347 F.2d 425; McBride v. United States, 10 Cir., 1963, 314 F.2d 75. Each held it to be error to give a comparable instruction; none purports to lay down a rule of constitutional law. Compare: United States v. Jacobo-Gil, 9 Cir., 1973, 474 F.2d 1213, 1216; United States v. Carlos, 9 Cir., 1973, 478 F.2d 377 in which we have held that certain comments are erroneous.

      . The proposed new constitutional rule cannot rationally be limited to cases such as this one; its logical consequence is a complete re-examination and limiting of the trial judge’s role as advisor to the jury. For example, can it be seriously contended that a judicial comment to the effect that a defendant’s credibility should be questioned because of his personal stake in the case does not “go to the fundamental process of assessing and evaluating evidence,” or that it may not be the equivalent of a comment on the “ultimate question” in certain cases? But such comments have regularly been approved by this Court. E.g. United States v. JacoboGil, 9 Cir., 1973, 474 F.2d 1213; United States v. Eskridge, 9 Cir., 1972, 456 F.2d 1202, 1205-1206; Louie v. United States, 9 Cir., 1970, 426 F.2d 1398, 1402; Papadakis v. United States, 9 Cir., 1953, 208 F.2d 945, 954. In short, it is by no means clear that Gonsior will be the only casualty if we were to overrule it.

      . Chambers v. Mississippi, 1973, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297, and Brooks v. Tennessee, 1972, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358, do illustrate the fact that from time to time the Supreme Court “constitutionalizes” a rule that some might think deals only with error rather than with violation of the constitution. Neither case, however, even remotely resembles the Davis case. In Chambers the court held that a state rule of evidence, as applied in that case improperly prevented a defendant who was charged with murder from showing that another man had confessed to the murder under circumstances which appeared to the Court to establish the credibility of the confession. In Brooks the trial court had applied a Tennessee rule under which a defendant, if he desired to take the witness stand, had to do so before any of his own witnesses could testify. The court held that this violated his fifth amendment privileges against self-incrimination. The difference between these two cases and the Davis case is obvious.


text:
    UNITED STATES of America, Petitioner-Appellant, v. MARTIN LINEN SUPPLY COMPANY et al., Respondents-Appellees.
    Nos. 72-2796, 72-2800.
    United States Court of Appeals, Fifth Circuit.
    Oct. 9, 1973.

      Irwin A. Seibel, Antitrust Div., Dept, of Justice, Washington, D. C., William S. Sessions, U. S. Atty., Hugh P. Shovlin, Asst. U. S. Atty., San Antonio, Tex., for petitioner-appellant.
    Mervin C. Pollak, New York City,. Brice A. Tondre, J. Burleson Smith, San Antonio, Tex., for respondents-appellees.
    Before THORNBERRY, AINSWORTH and RONEY, Circuit Judges.
   RONEY, Circuit Judge:

This is an appeal from orders of the District Court resulting in the dismissal before trial of civil and criminal contempt petitions brought by the United States charging violations of a final judgment in a civil antitrust action. Contrary to the argument of the respondents, we hold that we have appellate jurisdiction to review these orders which we reverse on the ground that the conduct charged in the petitions could constitute a violation of the antitrust decree.

The antitrust judgment, a consent decree, prohibited each corporate defendant linen supplier (collectively referred to herein as “Martin”), from threatening, coercing, inducing or attempting to induce any linen rental supplier to refrain from furnishing linen supplies to any customer. The contempt argument centers on the interpretation and subsequent application to be given this prohibition in relation to Martin’s alleged activities.

The appellate jurisdiction problem is difficult. Under the Expediting Act, the Supreme Court has exclusive jurisdiction of appeals from final judgments in every civil action wherein the United States is complainant. Under the Criminal Appeals Act, the Court of Appeals has jurisdiction in a criminal case to review a decision, judgment or order dismissing an indictment or information except where the double jeopardy clause of the Constitution prohibits further prosecution. A criminal contempt prosecution in an antitrust case has been held to be a “criminal case” within the meaning of 18 U.S.C.A. § 3731. United States v. Goldman, 277 U.S. 229, 48 S.Ct. 486, 72 L.Ed. 862 (1928).

At bar is an appeal from a criminal contempt proceeding over which we have review jurisdiction, and an appeal from a civil contempt proceeding which, standing alone, is beyond our jurisdiction. To further complicate the jurisdictional picture, the District Court entered a separate order “construing” the final antitrust judgment in the civil suit. Although Martin contends that this construction order was a “final judgment” within the Expediting Act, thereby precluding review by our Court, we reason that the construction order is actually a part of the contempt proceedings and should be handled in the same manner as if it were a ruling within the context of a contempt proceeding. Since we have jurisdiction over the criminal contempt appeal, we will additionally review the civil contempt appeal on the rationale of judicial economy found in cross-claim, pendant and ancillary jurisdiction. To hold otherwise would require the same parties to litigate basically the same issues in two different courts at the same time.

The Proceedings Below

In 1969, the United States filed a civil complaint in the District Court alleging that Martin restrained trade in violation of the Sherman Act, 15 U.S.C.A. § 1 et seq., with respect to the business of furnishing linen supplies in the state of Texas. In June, 1969, after negotiation, a consent decree was entered as final judgment in the suit.

In December, 1971, the United States filed the separate civil and criminal contempt petitions under review alleging violations of Section V(A)(1) of the consent decree. That Section provides

Each corporate defendant is enjoined and restrained from, directly or indirectly :

(A) threatening, coercing, inducing or attempting to induce:

(1) Any linen rental supplier to refrain while in business, from furnishing linen supplies to any customer ....

The activities which the Government allege violated the consent decree revolve around Martin’s attempts to exact reciprocal agreements from other linen suppliers not to compete for Martin’s customers, backed up by warnings of economic reprisals.

After full pre-trial discovery, Martin filed a petition in the original antitrust proceeding for construction of the above Section. The District Court determined that the allegations by the Government centered on Martin’s activities aimed at recoupment of its own former customers and retaliations against competitors who solicited its customers. The Court concluded that Section V (A)(1) of the consent decree does not prevent Martin from threatening competitors with economic reprisals to persuade them to refrain from soliciting Martin’s customers.

Subsequent to the entry of the construction order and based thereon, the District Court dismissed the criminal and civil contempt petitions against Martin.

The Construction Order

Martin contends that the construction order interpreting a provision of the antitrust consent decree was a final judgment in a civil action and that, since the United States was the complainant, appeal lies only to the Supreme Court under the Expediting Act. The construction order, however, was initiated, viewed in light of, and decided upon the allegations of the contempt petitions. Although the application for construction of the antitrust decree and the construction order bore the caption and docket number of the contempt proceedings, the application was made after the date for the trial of the contempt charges had been set. It was made to the District Judge who was to hear the contempt petitions and not to the District Judge who entered the consent decree in the original antitrust suit. The Memorandum of Points and Authorities accompanying the application referred to the charges in the contempt petitions numerously and stated that the interpretation urged by the Government “in the pending contempt proceedings” would have adverse consequences. Immediate construction was urged in order to “narrow the factual issues of the pending contempt petition trials” and provide a basis for “reappraisal of the entire contempt proceedings and their termination or other disposition without trial.”

The District Judge acknowledged in his opinion and order that the application was made “at this time because of the pendency of criminal and civil contempt proceedings . . . .” After interpreting Section V(A)(1) of the consent decree, he found that the activities alleged in the contempt petitions and particularized in supplementary papers did not violate the Section. Three weeks later, on June 12, 1972, the District Court dismissed the contempt petitions in accordance “with this Court’s Memorandum Opinion dated May 18, 1972, in Civil Action No. SA-69-C4-114 [the original antitrust suit].”

It is evident the construction order was a ruling integral with the contempt proceedings, and not a final judgment within the meaning of the Expediting Act. See United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973). To hold otherwise would allow the captioning of the application and construction order to override the substance of the ruling. United States v. Jorn, 400 U.S. 470, 478 n.7, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); United States v. Sisson, 399 U.S. 267, 279 n. 7, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970); United States v. Hark, 320 U.S. 531, 536, 64 S.Ct. 359, 88 L.Ed. 290 (1944).

We hold that we have jurisdiction to review the construction order in connection with any review jurisdiction we have of the contempt proceedings.

Double Jeopardy

Although admitting that we have jurisdiction to review criminal contempt proceedings, Martin contends that the dismissal of the criminal contempt petition in this case was tantamount to an acquittal and that the double jeopardy clause of the Constitution would prevent a trial in the event we reversed the District Court. If such were the case, a review would be inappropriate. See United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970).

Martin bases its claim on the extensive pre-trial discovery which it reasons confronted the Court with the merits of the Government’s claims. Jeopardy is not always an easy concept to determine. “[A] defendant is placed in jeopardy in a criminal proceeding once the defendant is put to trial before the trier of facts, whether the trier be a jury or a judge.” United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). In the case of a jury trial, a defendant is deemed to have been put in jeopardy when the jury is empanelled and sworn. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). In a non-jury trial, jeopardy attaches when the court begins hearing evidence. Hunter v. Wade, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949).

The mere arraignment and pleading to an indictment or the conduct of a preliminary examination does not place the defendant in jeopardy. Collins v. Loisel, 262 U.S. 426, 429, 43 S.Ct. 618, 67 L.Ed. 1062 (1923); Bassing v. Cady, 208 U.S. 386, 391-392, 28 S.Ct. 392, 52 L.Ed. 540 (1908). Nor does the dismissal on a nolle prosequi when the witnesses have been sworn but before any have testified. Newman v. United States, 133 U.S.App.D.C. 271, 410 F.2d 259 (1969).

The Supreme Court has admonished us, however, to avoid any rigid rule and evaluate each case according to its facts. Illinois v. Somerville, supra. Indeed, this Court has noted the absence of fixed rules by which to measure an individual case. McNeal v. Hollowell, 481 F.2d 1145 (5th Cir. 1973).

In the case at bar the trial was admittedly in the pre-trial stages. It is true that the Government disclosed the nature of its case in the extensive pretrial procedures ordered by the District Judge, but this did not commence a “hearing” of the evidence. The trial had not yet begun. Martin was never in jeopardy because it is “when the trial commences . . . that the constitutional policies underpinning the Fifth Amendment’s guarantee are implicated . ” United States v. Jorn, supra, 400 U.S., at 480, 91 S.Ct., at 555.

We find the authority relied upon by Martin to be inapplicable. United States v. Findley, 439 F.2d 970 (1st Cir. 1971), United States v. Ponto, 454 F.2d 657 (7th Cir. 1971), United States v. Grochowski, 454 F.2d 655 (7th Cir. 1971), and United States v. Gustavson, 454 F.2d 677 (7th Cir. 1971), are “draft act” cases which precluded appeal by the Government. They did not turn on the double jeopardy clause. All of the cases were decided under the Criminal Appeals Act, 18 U.S.C.A. § 3731, prior to its amendment by the Omnibus Crime Control Act of 1970, § 14(a), 84 Stat. 1890. Under the prior Act, appeal was limited, not only by the double jeopardy clause, but also by statutory constraints. In deciding Findley, Ponto, Grochowski, and Gustavson, the Courts relied on these statutory constraints rather than the double jeopardy clause.

The First Circuit stated in Findley that the defendant had “ [a] dmittedly . not formally been put in jeopardy. . . . Collectively we believe this was an approach not in terms of double jeopardy, but in terms of the kind of error section 3731 was intended to cover.” 439 F.2d at 973.

The Seventh Circuit in Ponto, sitting en banc, discussed the applicability of the double jeopardy clause: only three members of the five-judge majority were persuaded that the Constitution barred an appeal. 454 F.2d at 663. The two members of the majority who had concurred in the result on statutory grounds did not join in the opinion on the constitutional grounds. 454 F.2d at 665. The four dissenting judges disagreed on both statutory and constitutional grounds: they felt that the constitutional guarantee against double jeopardy was inapplicable since the trial had not begun and jeopardy had not attached. 454 F.2d at 667-668. A similar distribution in the voting occurred in the companion case, Gustavson. There, only seven members heard the case en banc. Only five expressed an opinion on the double jeopardy issue. Of these, two voted that it barred the appeal and three voted that the clause was inapplicable.

Since the draft act cases were not decided on jeopardy grounds, they do not support Martin’s argument that jeopardy has attached in this case.

Civil Contempt Jurisdiction

The civil contempt petition is virtually identical to the criminal contempt petition. Since the dismissal of the criminal contempt petition is appeal-able to this Court, the civil contempt petition may also be heard here on the basis of judicial economy. Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 612-618, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966), is illustrative of the judicial economy reasoning. In that case, the Federal Maritime Commission entered a reparation order directing a carrier to pay damages to a shipper. Both the carrier and the shipper appealed, each intervening in the appeal of the other. The Court of Appeals had jurisdiction to review the shipper’s claim for an increase in damages, but did not have jurisdiction over the carrier’s appeal which properly lay in the District Court through an enforcement proceeding by the shipper. The Supreme Court held that the Court of Appeals could properly review both appeals.

With the jurisdiction of the Court of Appeals properly invoked by the shipper, there is, therefore, every reason to permit the carrier not only to litigate the amount of the reparation order but also to insist upon a determination of the validity of the Commission’s order, both with respect to the carrier’s violation of the Act and with respect to the reparation award itself . . . . The minimal disadvantages resulting to the shipper from permitting the carrier to attack the reparation order are more than offset by the desirability of a prompt and efficient determination of the validity of the Commission’s order . And, once the carrier intervenes in the shipper’s appeal, all the parties interested in the complete resolution of the validity of the Commission’s order are before the court. In this situation it would make little sense to require the carrier to break off his argument short of its logical conclusion and relitigate it anew before a district court in an enforcement action.

383 U.S. at 616-617, 86 S.Ct. at 1024-1025.

Consideration of the appeals jointly in the case at bar is supported by the holding in two kinds of cases. First, in cases arising under the former Criminal Appeals Act, the Supreme Court required the Court of Appeals to review both grounds if the District Court’s ruling was on alternative grounds, one appealable under the statute to the Supreme Court and the other to the Court of Appeals. United States v. Swift & Co., 318 U.S. 442, 444-445, 63 S.Ct. 684, 87 L.Ed. 889 (1943). Second, in cases involving a single order for civil and criminal contempt in which the Supreme Court has held that the criminal aspect of the order controls for purposes of determining the procedure on appeal. See Union Tool Co. v. Wilson, 259 U.S. 107, 110, 42 S.Ct. 427, 66 L.Ed. 848 (1922) (cross writ); In re Merchants’ Stock & Grain Co., 223 U.S. 639, 32 S.Ct. 339, 56 L.Ed. 584 (1912) (contempt decree containing both remedial and punitive provisions).

Without deciding whether we would have jurisdiction to review the civil contempt proceeding were it standing alone or were it substantially different than the criminal petition, we hold that we have jurisdiction to review the dismissal under the facts of this case.

Contempt Charge

At this juncture it is necessary to review the language of Section V(A)(1) of the consent decree:

V.

Each corporate defendant is enjoined and restrained from directly or indirectly :

(A) Threatening, coercing, inducing or attempting to induce:

(1) Any linen rental supplier to refrain, while in business, from furnishing linen supplies to any customer ....

A consent decree is the manifestation of a negotiated settlement where the defendants in the original suit relinquished their right to litigate the issues of antitrust liability, relying fully on the decree terms. See United States v. Armour, 402 U.S. 673, 681-683, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971). It is necessary to look to the consent decree in its entirety to ascertain the meaning of the various sections as intended by the parties. United States v. Atlantic Rfg. Co., 360 U.S. 19, 22, 79 S.Ct. 944, 3 L.Ed.2d 1054 (1959). In so doing the trial court and this Court must give weight to the plain meaning of the words used. United States v. Armour, supra 402 U.S. at 682, 91 S.Ct. 1752. This caveat works to the protection of both parties.

Relying on the plain meaning of the words, the thrust of Section V(A)(1) is to prohibit Martin from engaging in activity which is aimed at causing any linen supplier to refrain from furnishing linen supplies to any customer. “Causing any linen supplier to refrain” is the key phrase of the section. The method used to procure the forebearance from competition is secondary: threats, coercion, and inducements by Martin are prohibited by V(A)(1) if they are aimed at a competitor with the intent to have that competitor refrain from competing with Martin.

The Government alleged that the following activities were violative of Section V(A) (1):

threats of recoupment, threats of price wars and threats of retaliatory sales campaigns to induce competitors to enter into reciprocal agreements not to compete for customers, and to refrain from soliciting and taking customers from Martin ....

The District Court, after addressing itself to these allegations, held that “soliciting,” “competing,” and “taking” were not synonymous with “furnishing linen supplies.” “Furnishing linen supplies” was limited to delivering linen supplies. By so defining the phrase, none of the activity alleged by the Government was within the prohibition of Section V(A)(1) since the allegations were not addressed to furnishing linen supplies.

In examining the entire consent decree, however, the word “furnishing” appears in several different sections. This repeated use of the words “furnish” or “furnishing” in conjunction with the “linen supplies” indicates that the words are used collectively in this decree to describe the business in which the respondents. are engaged. The words “furnish linen supplies” are used in the same manner in Section V(A)(1) and accordingly that section should be interpreted to mean that the defendants are prohibited from using threats, coercion and inducements to persuade their competitors to refrain from “doing business” with any customer.

Next, the District Court looked at the methods alleged by the Government to have been used by Martin. Finding that they centered on recoupment and retaliation, the Court stated that Martin may recoup business lost to competitors “by any means, including below cost prices, lump sum cash payments, loans, free services, gratuities and other inducements. . . . ” It was a simple step for the Court to conclude that Martin “may also say, in advance, that they will engage in these same activities. The speculative effect of verbalization cannot be different than that of the deeds verbalized.” As a consequence of this reasoning, the District Court found:

1. The provisions of Section V(A)(1) do not prohibit Martin and Cascade from recouping business lost to competitors, from engaging in price wars and retaliatory sales campaigns to effect such recoupment, and from threatening to engage in those activities.

The activities of recoupment and retaliation are not per se violations of Section V(A)(1). They are violations, however, if their announced purpose is to cause Martin’s competitors to refrain from competing, since the Section prohibits activities which “directly or indirectly” attempt “to induce” competitors “to refrain” from doing business.

It may be acceptable, as the District Court found, for Martin to engage in activity to recoup business. There is a difference, however, in activities of recoupment aimed at the customers and the threats of recoupment aimed at the competitors. We are mindful of the fact that recoupment practices may have the side effect of discouraging competition. Such flows from the normal course of business. But the use of threats directed at competitors to restrain competition, or to obtain reciprocal noncompetitive agreements, as the Government alleges, goes to the heart of the antitrust problem. Such activity was recognized and prohibited by Section V(A)(1).

The District Court concluded that the alleged activities by Martin against competitors were unsuccessful. The Court accepted tables submitted by Martin “showing that for more than three years there has been a constant interchange of accounts between Martin . . . and some one hundred competitors in the State of Texas.” This information is not dispositive of the issue: it is irrelevant under Section V(A)(1) whether or not Martin’s competitors were actually induced to refrain from competing. The issue is whether Martin either directly or indirectly threatened, coerced, induced, or attempted to induce such action.

Assuming that the allegations by the Government in the contempt petitions and supplementary papers are factually true, Martin attempted to engage other linen suppliers in noncompetitive agreements and’ attempted to curtail competition under threats, coercion and inducements of retaliatory sales campaigns. Such alleged activity aimed at restraining competition is a prima facie violation of Section V(A) (1).

We have only assumed, as did the District Court, that the allegations are true. The District Court must now address the factual issues in the case. We remand for such purpose.

Reversed and remanded.

      . The corporate defendants include Martin Linen Co. and Texas Sanitary Towel Supply Corp. (Cascade Linen Service). Tex-Mart Corp., which had been named as a defendant in the original complaint and consent decree, was not named as respondent in the petitions. Respondent William B. Troy is included because he is the controlling stockholder and president of both Martin Linen Supply and Cascade Linen Service.

      . Section 2 of the Expediting Act, as amended (15 U.S.C.A. § 29) provides:
      In every civil action brought in any district court of the United States under [the antitrust laws], wherein the United States is complainant, an appeal from the final judgment of the district court will lie only to the Supreme Court.
      Tidewater Oil v. United States, 409 U.S. 151, 93 S.Ct. 408, 34 L.Ed.2d 375 (1972).

      . 18 U.S.C.A. § 3731 states
      In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more courts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
      . . . The provisions of this section shall be liberally construed to effectuate its purposes.

      . Jurisdiction was retained under Section X of the consent decree:
      Jurisdiction is retained for the purpose of enabling any of the parties to this Final Judgment to apply to this Court at any time for such further orders or directions as may be necessary or appropriate for the construction or the carrying out of this Final Judgment, for the modification or termination of any of the provisions hereof for the purpose of enabling the plaintiff to apxily to this Court for the enforcement of compliance herewith and for the punishment of violations hereof.

      . Accordingly the Court finds :
      3. The provisions of Section V(A) (1) do not prohibit Martin and Cascade from recouping business lost to competitors, from engaging in price wars and retaliatory sales campaigns to effect such recoupment, and from threatening to engage in those activities.
      2. None of the activities of Defendants charged as violations of Section V (A) (1) in Paragraphs 10, 31, 12 and 13 of the Contempt Petitions and in the Supplementary Papers, violate the injunctions of that Section.

      . Prosecution for refusal to submit to induction under the Military Selective Service Act of 1967, 50 U.S.C.A. App. § 462(a).

      . The rationale of judicial economy to prevent duplicity in the federal system has precedent in the policy underlying cross-claims, pendant and ancillary jurisdiction. Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926); Smith Petroleum Service, Inc. v. Monsanto Chemical Co., 420 F.2d 1103, 1113-1115 (5th Cir. 1970); 2A Moore, Federal Practice, ¶ 8.07 [5] (2d ed. 1972).

      . Section 11(c) :
      “Linen rental supply business” means the business of furnishing clean linen supplies; Section IV:
      Bach defendant is enjoined and restrained from entering into, adhering to, enforcing or claiming any rights under any contract, agreement, understanding, plan or program with any person, not owned or controlled by such defendant, to directly or indirectly:
      (A) Fix, determine, maintain, stabilize or adhere to prices, discounts, or terms or conditions of sale, for the furnishing of any linen supplies to any third person;
      (B) Divide, allocate or apportion markets, territories or customers for the furnishing of any linen supplies or otherwise restrict competition between or among linen rental suppliers;
      (O) Cause any seller of linen supplies to boycott or refuse to sell linen supplies to any linen rental supplier; ....
      Section V (G) :
      Discussing or exchanging with any linen rental supplier, prices or price lists for the furnishing of linen supplies to any customer, or exchanging with, furnishing to or receiving from any linen rental supplier or linen rental suppliers, any list of customers or customer accounts served by any linen rental supplier; . . . .
      Section VI:
      Each corporate defendant is enjoined and restrained from furnishing or offering or threatening to furnish linen supplies to a customer or potential customer on terms or conditions which involve below cost prices, lump sum cash payments to the customer, loans (other than bona fide loans by a defendant to its then existing customers), free service, gratuities or other similar inducements to obtain a contract or renewal of a contract for the furnishing of linen supplies, for the purpose or with the effect of eliminating a competitor or competitors.


author: PER CURIAM.

text:
    Beverly R. WELLFORD v. Basil R. BATTAGLIA, in his capacity as Chairman of the Republican City Committee, et al. Appeal of Joseph S. YUCHT et al.
    No. 73-1652.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) July 3, 1973.
    Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 1973.
    Decided Sept. 21, 1973.
    Kent Walker, State Sol., Richard S. Gebelein, Deputy Atty. Gen., Dept. of Justice of Del., Wilmington, Del., for appellants.
    R. Franklin Balotti, Richards, Layton & Finger, Wilmington, Del., for appellee. Submitted Under Third Circuit Rule 12(6) July 3, 1973
    Before GIBBONS and HUNTER, Circuit Judges.
    Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 1973
    Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM.

Appellants, the defendants below, seek review of an order of the district court holding unconstitutional Section 3-300 of the Charter of the City of Wilmington, Delaware, and enjoining its enforcement. The charter provision imposes a requirement that a candidate for mayor of the city shall have been a resident of the city for at least five years at the time of his election. The plaintiffappellee, a resident of the city for less than four years desires to be a candidate for mayor in the next election. On the authority of the charter provision the defendants in their several official capacities declined to permit his candidacy. Since the City Charter has only local application, the suit was properly considered by a single district judge and appeal is to this court. See, e. g., Cleveland v. United States, 323 U.S. 329, 332, 65 S.Ct. 280, 89 L.Ed. 274 (1945). On cross motions for summary judgment the district court held (1) that the constitutionality of the charter provision must be judged by the “compelling state interest” standard rather than the “any rational basis” standard, and (2) that the State of Delaware could advance no compelling state interest which would justify a five-year residency requirement for a city mayoral candidate. Wellford v. Battaglia, 343 F.Supp. 143 (D.Del.1972). We affirm.

The Supreme Court held in Turner v. Fouche, 396 U.S. 346, 362, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), that while the Federal Constitution does not guarantee the right to hold public office, the equal protection clause of the fourteenth amendment does guarantee the right to be considered for such office without the burden of invidious discriminatory disqualifications. In that ease the Court did not have to decide whether the real property ownership disqualification should be judged by the “compelling state interest” standard or the more flexible “rational basis” standard, for it could find no rational connection between school board membership and real property ownership. The district court could not find, nor can we, that there is no rational relationship between residence in Wilmington and the office of mayor. It found, however, that judged by the “compelling state interest” test the five-year requirement went far beyond what is reasonably required to achieve the state’s objectives. Assuming the applicability of the higher standard, we agree that a residency requirement of five years duration has not been justified.

The district court concluded that the charter provision must be judged by the stricter standard because it interfered with two rights which the Supreme Court has held to be fundamental. The court concluded that the exclusion of certain candidates by virtue of a five-year residency requirement interfered with the right to vote of citizens of Wilmington. See Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). It also concluded that the five-year residency requirement interfered with the potential candidate’s right to travel. See Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). We agree that both rights are affected, that both have'been held by the Supreme Court to be fundamental, and that the Court has required that state laws limiting them be judged by the “compelling state interest” standard.

The judgment of the district court will be affirmed.

      . The appellants are members of the Board of Elections and Department of Elections of New Castle County, Delaware. An additional defendant, not an appellant, is the Chairman of the Wilmington Republican City Committee.

      . The facts of this case, including the length of the disqualification and the limited territory of the unit of government, distinguish it from Walker v. Yucht, 352 F.Supp. 85 (D.Del.1972).