author: ALFRED T. GOODWIN, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DECOTO AIRCRAFT, INC., Respondent.
    No. 74-2021.
    United States Court of Appeals, Ninth Circuit.
    March 6, 1975.

      William Wachter (argued), Julius Rosenbaum, Atty., Elliot Moore, Deputy Associate Gen. Counsel, Washington, D. C., for appellant.
    Wesley M. Wilson (argued), Yakima, Wash., for appellee.
    Before CHOY and GOODWIN, Circuit Judges, and BURNS, District Judge.

       The Honorable James M. Burns, United States District Judge for the District of Oregon, sitting by designation.

   OPINION

ALFRED T. GOODWIN, Circuit Judge:

In this proceeding to enforce an order of the National Labor Relations Board, the employer, Decoto Aircraft, challenges the legality of a second representation election which the board had ordered after the union lost the first election. We enforce the board’s order.

Decoto Aircraft manufactures and sells aircraft control equipment. Local Lodge 1531, International Association of Machinists and Aerospace Workers, AFL-CIO had been trying to organize Decoto’s Yakima plant. On November 20, 1972, the Seattle Regional Director of the National Labor Relations Board conducted a representation election, and the union did not obtain enough votes to win recognition.

The union filed a timely protest, asserting that Decoto had interfered with laboratory election conditions and requesting that the election be set aside and a new one be ordered. In due course a new election was ordered, and the union won.

During the Regional Director’s investigation of the union’s charges, he notified Decoto that evidence of employer misconduct not specifically alleged by the union had been discovered, and that he intended to consider and weigh this evidence. On advice of counsel, Decoto objected to the Regional Director’s inquiry into matters not specifically charged by the union. Decoto offered no evidence to rebut the Regional Director’s additional evidence of misconduct, but stood on the defense that these “new” matters had not been covered by the charges.

In March 1973, the Regional Director issued his report on the union’s objections to the first election. He concluded that the union’s wage and hour claims were not meritorious. However, the claim based upon an alleged threat by Decoto to change the shift of a prounion employee, combined with five additional findings (herein called “additional findings”) not specifically charged by the union, created a sufficient basis for setting aside the election.

Decoto promptly filed exceptions to the Regional Director’s report. While Decoto asserted that the report was defective because new allegations and evidence were improperly considered by the Regional Director, Decoto also asserted that it was entitled to a hearing.

The NLRB, in its “Decision and Direction of Second Election” found no merit in Decoto’s exceptions. The board denied the requested hearing “because the employer, having received reasonable notice of specific conduct alleged to have interfered with the election, refused to present any evidence rebutting those allegations to the Regional Director.”

Following NLRB certification of Local 1531 as the unit’s agent, Decoto refused to supply the union with requested bargaining information and refused to recognize and bargain with the local. Proceedings under sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (5), ensued.

Decoto admits its refusal to bargain, but challenges both the second election and the board’s proceedings leading to the second election.

On April 3, 1974, the board issued its decision and order, requiring Decoto to provide the union with pertinent bargaining information; to bargain with the union; and to cease interfering with the unit employees’ § 7 (29 U.S.C. § 157) rights.

In this proceeding to enforce the order we consider:

(1) Whether the Regional Director has authority to make additional findings and recommendations based on evidence of election interference uncovered during the investigation of an election but not otherwise related to the union’s specified objections.

(2) Whether Decoto’s refusal, during the Regional Director’s investigation, to present evidence on allegations other than the union’s specified objections precludes Decoto from later claiming that it is entitled to a hearing to resolve substantial and material issues of fact allegedly surrounding those allegations.

(3) Whether the cumulative effect of the shift-change charge and the additional findings was sufficient to warrant setting aside the initial election.

Decoto’s assertion that the Regional Director’s investigation should have been limited to the formal objections contained in the union’s protest is not well taken. In reviewing Decoto’s preelection conduct, the Regional Director was free to consider all evidence, relevant to the election, which was uncovered by the investigation. Independent, Inc. v. N.L.R.B., 406 F.2d 203, 206-207 (5th Cir. 1969). The Regional Director properly included the additional findings in his assessment of the climate surrounding the election.

Regarding Decoto’s demand for a hearing, when the Regional Director investigates the circumstances of a challenged election, “ * * * if it appears * * * that substantial and material factual issues exist which, in the exercise of his reasonable discretion, * * * may more appropriately be resolved after a hearing, he shall issue and cause to be served on the parties a notice of hearing * * 29 C.F.R. § 102.69(d) (1973).

The burden was on Decoto to tender specific substantial and material factual issues to be resolved by a hearing. See N.L.R.B. v. White Knight Manufacturing Company, 474 F.2d 1064, 1068 (5th Cir. 1973) . Sufficient “evidence” to warrant a hearing need not satisfy technical evidentiary requirements, and is not insufficient merely because it is not attested to, verified, or in affidavit form. See Henderson Trumbull Supply Corp. v. N.L.R.B., 501 F.2d 1224, 1227-1228 (2d Cir. 1974) . But something more solid than a mere conclusory statement is needed.

Decoto had an opportunity to submit, evidence rebutting the Regional Director’s additional findings, but refused to do so. Decoto thus failed to meet its burden of showing that substantial and material factual issues existed. The board did not err in its June 14, 1973, decision refusing to grant Decoto’s request for a hearing. See 29 C.F.R. § 102.69(d) (1973); White Knight Manufacturing Company, supra. The board clearly had authority to order the second election.

Decoto’s response to the board’s summary-judgment-show-cause notice again requested a hearing, but we agree with the board’s statement in its decision granting summary judgment that “[i]t is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding * * *. [Footnote omitted.]” Decoto has not offered newly discovered or previously unavailable evidence. Cf. Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162, 61 S.Ct. 908, 85 L.Ed. 1251 (1941); 29 C.F.R. § 102.-67(f) (1973).

We are satisfied that the cumulative effect of the facts including those uncovered in the Regional Director’s investigation warranted setting aside the initial election. These charges remained uncontradicted. Decoto’s tactical choice to stand “on the pleadings” left the proceedings in the posture of a default.

None of Decoto’s allegedly unlawful acts, alone, was of a nature so coercive, egregious, or inherently detrimental to laboratory conditions as to justify setting aside the first election. However, the board had the right to consider the totality of Decoto’s conduct in the relevant preelection period. The board was free to conclude that the conduct represents a systematic pattern of activity tending to upset the laboratory conditions requisite to a valid election. See also, N.L.R.B. v. Shirlington Supermarket, Inc., 224 F.2d 649, 653 (4th Cir. 1955), where the court said:

“ * * * The soundness of the Board’s judgment would seem to be demonstrated by the fact that the result of the election was different when the practices which the Board regarded as prejudicial were not engaged in. Certainly, we would not be justified in setting aside its action as an abuse of discretion in the light of the circumstances before us.”

The quoted observation applies with equal force here.

The board will draft and submit an appropriate form of judgment in this court.

      . Specific conduct alleged to have interfered with laboratory conditions is:
      1. Decoto’s grant of wage increases subsequent to Aerospace’s filing of the petition for election.
      2. Decoto’s reduction of employee work hours (from ten hours to eight hours a day) during the week of the election.
      3. Decoto’s threat of an undesirable shift change to an employee who was a union supporter.

      . The Regional Director alleged the following to constitute conduct detrimental to laboratory conditions:
      1. Decofo’s coercive interrogation of unit employees regarding protected union activities.
      2. The substance of employer remarks to assembled unit employees about means of registering employee complaints, the reestablishment of shop committees, employee accessibility to management, pension funds, and working conditions.
      3. Employer’s implied promises of future employee pension benefits.
      4. Employer remarks to employees in an employee meeting, including further discussion of pension benefits and improved methods of employee-grievance resolution.
      5. The circumstances surrounding the preelection circulation of a new employee handbook, which contained implied promises of future employee benefits.

      . Decoto cites NLRB v. Tommy’s Spanish Foods, Inc., 463 F.2d 116 (9th Cir. 1972), for the proposition that “[e]ven if the employer had informed employees [during the critical preelection period] of the fact that prior to the filing of the election petition the employer had investigated pension funds, this statement would not be grounds for setting aside the election.”
      We agree with Decoto’s analysis of Tommy’s Spanish Foods, but distinguish it from the case at bar. We do not base our holding solely upon the fact that Decoto informed its employees of a potential increase in pension benefits. Rather, it is based upon the totality of Decoto’s conduct including, but not limited to, the pension benefit issue.


source: Caselaw Access Project

author: McALLISTER, Senior Circuit Judge.

license: Public Domain

text:
    LAKE ODESSA MACHINE PRODUCTS, INC., a wholly-owned subsidiary of Sparton Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 74-1491.
    United States Court of Appeals, Sixth Circuit.
    March 19, 1975.
    As Amended May 23, 1975.
    Carl E. Ver Beek, Thomas J. Barnes, Varnum, Riddering, Wierengo & Christenson, Grand Rapids, Mich., for petitioner.
    Elliott Moore, Deputy Associate Gen. Counsel, Peter G. Nash, John S. Irving Jr., Patrick H. Hardin, Paul Spielberg, Stephen D. Quinn, N.L.R.B., Washington, D. C., Bernard Gottfried, Director, Region 7, N.L.R.B., Detroit, Mich., for respondent.
    Before PECK and LIVELY, Circuit Judges, and McALLISTER, Senior Circuit Judge.
   McALLISTER, Senior Circuit Judge.

This case has its genesis in a representative election first conducted on November 1, 1972. The Union lost that election by a vote of 49 to 25. The Union filed objections to the election and, on December 1, 1972, a hearing was conducted before a Board Hearing Officer. On January 18, the Hearing Officer recommended that the election objections be sustained, and that a second election be ordered. The employer chose not to appeal the Hearing Officer’s report and, instead, agreed to another election. Accordingly, the November election was set aside and a second election was held on March 5, 1973.

The results of the second election were 52 votes for the Union; 22 votes against and 4 challenged ballots. It appears that the election was held on a Monday.

On the Friday and Saturday preceding the election, the Union distributed to the workers materials which invoked Board processes by quoting the NLRB as making statements which it did not make. Union agents made false statements regarding the employees’ profits. The Union distributed false and prejudicial handbills which contained cartoons calculated and intended to show that the employer mistreated the workers and that the Government had accused the employer of “Foul” tactics in order to prejudice the workers against the employer.

These handbills contained language, in quotation marks and attributed to the National Labor Relations Board, which had never been used by the Board in any order pertaining to Lake Odessa. The language on the handbill recited:

“THE FACTS (as stated by N.L.R.B.) “THE ELECTION CONDUCTED ON NOV. 1, 1972 WAS SET ASIDE BECAUSE THE NATIONAL LABOR RELATIONS BOARD FOUND THAT CERTAIN CONDUCT OF THE EMPLOYER INTERFERED WITH THE EMPLOYEES’ EXERCISE OF A FREE AND REASONED CHOICE. THEREFORE, A NEW ELECTION WILL BE HELD IN ACCORDANCE WITH THE TERMS OF THIS NOTICE OF ELECTION. ALL ELIGIBLE VOTERS SHOULD UNDERSTAND THAT THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, GIVES THEM THE RIGHT TO CAST BALLOTS AS THEY SEE FIT, AND PROTECTS THEM IN THE EXERCISE OF THIS RIGHT, FREE FROM INTERFERENCE BY ANY OF THE PARTIES.”

At the top of the handbill was printed a sketch, headed by the word, “FOUL! ” in large letters. The sketch showed two boxers in a ring, one labeled “COMPANY,” and the other labeled “EMPLOYEE.” It showed the boxer labeled “COMPANY” striking a devastating foul blow below the belt of the boxer labeled “EMPLOYEE.” At the moment, a figure dressed as Uncle Sam, standing between the fighters, called “FOUL! ” At the side of the sketch in large black-face print were the words: “When Uncle Sam is the referee, no fouls allowed. Uncle Sam says, ‘no decision,’ finds company guilty of striking foul blow, orders new election.” At the bottom of the sketch is pictured an arm with hand in boxing glove, on which there are the words: “VOTE YES” and in between these words the statement: “HERE’S YOUR KNOCKOUT PUNCH.” The sketch was signed at the bottom: “ALLIED INDUSTRIAL WORKERS OF AMERICA.”

On the second handbill was a sketch of an employer saying to an employee: “FOR YOUR LOYAL AND FAITHFUL SERVICE TO THE COMPANY, I AM PROUD TO PRESENT YOU WITH THIS 15 YEAR AWARD, . . . CONGRATULATIONS! ” The employee is pictured replying: “THANKS BOSS, I HOPE I WILL BE WITH THE COMPANY FOR ANOTHER 15 YEARS!” Alongside this sketch is another labeled, “LATER . . . ” showing the employee reading a notice taken from his mailbox stating: “Your services are no longer needed with the company. Your final payroll check is enclosed. Your Boss.” The caption under the sketch states: “WHAT HAPPENS IF YOU ARE FIRED?” followed by “BE WISE . . . ORGANIZE FOR JOB SECURITY. It DOESN’T COST . . IT PAYS TO BE A MEMBER OF THE A.I.W.” This second flyer distributed by the Union allegedly depicted the experience of a former employee named Curtis. Curtis had quit the employment of the Company of his own volition, without any complaint. When, later, he wished to be reemployed, his later attempt to withdraw his resignation was refused. There was no violation of any rights of Curtis by the Company; and the circulation of the flyer by the Union depicting him as, first, being thanked by the Company for his loyal service of 15 years, and receiving an award for such service, and his receiving, immediately after from his mailbox, a notice that he was fired and his final check was being enclosed was a misrepresentation calculated to show the Company’s bad faith, cruel treatment of an old and trusted employee, and deceit to the latter’s immense disadvantage. The flyer was false and intended to destroy all confidence of the employees in the honesty, fairness and business decency of the Company.

During the election, one of the employees stated that the Company’s profits for the previous year had amounted to three million, seven hundred thousand dollars. This was approximately twenty-five times the amount of profits that the Company had made that year.

The Regional Director who recommended that the employee’s objections be overruled in their entirety, did not even talk with the Union Business Agent, who chaired the meeting, to ascertain whether the employee who made the statement that the employer’s profits were twenty-five times more than they actually were, was or was not an in-plant organizer.

In the election the members selected the Union as their representative. The Company, claiming that the certification of the Union as representative was predicated on an unlawful election, technically ref used, to bargain because of the conduct of the Union heretofore set forth. The Company charged the foregoing activities of the Union vitiated' the election, and filed objections to the validity of the election. The Board then, without holding a hearing, found the Company in violation of Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act. The Company filed a petition for review. The Regional Director overruled the Company’s objections to the conduct of the Union in their entirety, and the Board thereupon adopted the Regional Director’s decision, without affording the Company a hearing.

On April 19, 1974, the employer petitioned this Court for review of the Board’s order; and the Board, on June 7, 1974, filed its cross-application for enforcement of its order.

The contention of the employer is that the Union published and distributed materials which invoked Board processes, and contained such deliberate and contemptible misrepresentations that they prevented the holding of a free and fair election.

The Regional Director’s Report and the Recommendations on Objections (hereinafter referred to as “Report”), while admitting that the Union did attribute statements to the Board, which the Board did not in fact make, nevertheless, did not sustain the employer’s objection. The Regional Director found “special circumstances in this case which may mitigate such improper use.” The Regional Director found those special circumstances to be:

1. That the impression is not left through official documents or seals that the Board is favoring one side or another.
2. There was no sufficient impact on the electorate.
3. The entire document was reasonably accurate.
4. The employees could interpret the materials as election propaganda.
5. The employer had an adequate opportunity to respond.

From the facts above recited, it is obvious that the employer did not have an opportunity to respond to all of these false statements, and scurrilous materials. The Union had more than three months to organize and prepare the false pamphlets. When they were circulated on the Friday before the election to be held on Monday, the employer had only Saturday to answer all these statements and innuendos to some of the employees when many were absent from the plant, and on the Monday morning before the election that was to take place that afternoon. The action of the Union was conceived with the unfair intention of depriving the employer of a fair chance to respond to the false charges.

It is our conclusion that the representations made by the Union in its handbills misrepresented the facts, and were deliberately dishonest, and made at the last moment before the election with the intention that the voters would rely • on them as being truthful and, upon this reliance, vote against the employer.

The Company did not commit any of the acts attributed to it by the Union in its handbills. There was no evidence that Uncle Sam, or the Government, claimed the Company was guilty of any foul play against the employees, as was represented by the handbills.

From the evidence it clearly appears that the Union, by publishing and distributing campaign materials containing false statements and invoking the Board as making statements which it never made, prevented the holding of a free and fair election. While the Board acknowledges that it consistently and zealously makes every effort to prevent any party from suggesting, either directly or indirectly, to the voters that it endorses a particular choice, nevertheless it made a determination as to the effect of the language in the documents on the employees’ minds without taking any testimony.

In Allied Electric Products, 34 LRRM 1538, the Board said:

“The Board is necessarily concerned with the protection of its procedures designed to provide fair elections. The Board particularly looks with disfavor upon any attempt to misuse its processes to secure partisan advantage, and especially does it believe that no participant in a Board election should be permitted to suggest either directly or indirectly * * * that this Government Agency endorses a particular choice.”

In Mallory Capacitor Co., 161 NLRB No. 127, the Board said:

“We do not agree with the Regional Director’s conclusion that the circulated document did not interfere with a fair election.”

In the foregoing case, after the Regional Director issued a complaint and notice of hearing, the Labor Union distributed a copy of the complaint to the employees which was prepared by a photographic process containing, in part, an altered reproduction of the complaint. As the Board, in Mallory, said:

“The alteration consisted of cutting out parts of the complaint and reconstructing the remaining parts so as to produce a document consisting primarily of the alleged unlawful conduct and the conclusionary allegation that they constituted violation of the Act. Deleted from the document were portions which indicated it was not a final judgment of the Board, which gave notice that the Employer would have the right to appear in person or otherwise, and give testimony. The signature of the Regional Director was included in the altered document. Added to the document, and appearing at the top of the first page, was a picture of Uncle Sam pointing a finger and, in large printing, the words ‘Uncle Sam says “Mallory Bosses Guilty.” ’ The document also included a copy of a letter entitled ‘An Open Letter To: Mr. Ruggles, Plant Manager.’ The penultimate paragraph of said letter reads as follows: ‘Mr. Ruggles you are only trying to get us to vote against ourselves. Why don’t you start being honest with your employees and respect our intelligence. For you have already been found guilty by the United States Government for your conduct in the election.’ ”

The Board concluded:

“The Board is necessarily concerned with the protection of its procedures designed to provide fair elections. It particularly looks with disfavor upon any attempt to misuse its processes to secure partisan advantage. And, plainly, we cannot sanction the reproduction of a Board document which is altered for campaign purposes and used under circumstances where it is reasonably calculated to mislead employees into believing that the Board has judged the Employer to have violated Federal law whereas, in truth, it has only made allegations which have yet to be proved. We shall set aside the election and order a new one.”

See, to the same effect, N.L.R.B. v. John S. Barnes Corporation, 478 F.2d 1105 (1973) (C.A. 7); Thiokol Chemical Corporation, 82 LRRM 1583 (1973); Dubie-Clark Company, 209 N.L.R.B. No. 21 (1974).

From all the foregoing, the election to which the employer objects was, without question, an unfair election in every sense of the word.

The petitioner employer’s request that this Court enter an Order denying enforcement of the Board’s Order, which is before the Court on Petition to Review, is hereby granted.


author: STEPHENSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Howard Eugene ROWELL, Appellant.
    No. 74-1731.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 11, 1975.
    Decided March 21, 1975.
    James L. Crabtree, Millin, Crabtree & Houdek, Kansas City, Mo., for appellant.
    Robert G. Ulrich, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before BRIGHT and STEPHENSON, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       The Honorable Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation.

   STEPHENSON, Circuit Judge.

This appeal from a jury conviction on two counts of an indictment charging distribution of heroin asserts (1) insufficiency of the evidence to support a finding of defendant’s mental responsibility at the time of the offense, (2) error by the court in interrogating a juror after the trial had commenced, and (3) error in the imposition of sentence. We affirm.

I.

In substance, appellant contends that the government failed to establish beyond a reasonable doubt that he was able to conform his conduct to the requirements of the law in accordance with the test of insanity prescribed in this circuit. United States v. Frazier, 458 F.2d 911, 918 (8th Cir. 1972). He particularly points to the testimony of Dr. Zwerenz who, in response to a hypothetical question, opined that at the time of the offense appellant “ * * * was suffering from mental disease or defect which did not allow him to conform his conduct to the requirement of the law.” The record included testimony and evidence indicating, among other things, that appellant had a long history of drug addiction, was suffering from withdrawal symptoms at the time the heroin in question was obtained and distributed, and was able to secure heroin for himself in the process of doing so. .

The government in rebuttal offered the testimony of Dr. McKnelly who, in response to a similar hypothetical question, was of the opinion that appellant “could appreciate the nature of his acts and was able to adhere to the right.” Dr. McKnelly had seen Dr. Zwerenz’ report and suggested they were in agreement as to everything except their conclusions.

Further discussion of the evidence would not be fruitful. Suffice to say a submissible jury issue as to mental eompetency was created and submitted to the jury under proper instructions. The jury having spoken, we must review the evidence most favorable to the prevailing party. United States v. Dawson, 467 F.2d 668, 673 (8th Cir. 1972). We are satisfied that the verdict has adequate support in the evidence.

II.

At the close of the first day of trial, counsel for the government advised the court that one of the jurors apparently had been convicted of several municipal violations for offenses relating to the use of alcohol. The following day, at the close of the evidence, the prosecutor suggested that the juror in question might not be a competent juror. Appellant’s counsel advised the court that he would strenuously object to anything being done without a hearing — that the juror in question was the only black on the jury. After further discussion, appellant’s counsel advised the court that he would object to any further action being taken, pointing out that the government had failed to request any voir dire questions and that municipal ordinance violations would not make the juror incompetent to serve.

Ultimately, after the evidence was closed, the trial court decided to hold a hearing for the purpose of determining whether the juror could continue to serve as an impartial juror in the case. The hearing was held in chambers by agreement of the parties. The court carefully questioned the juror, who assured the court he had no prejudice against law enforcement officials and would be a fair and impartial juror. The court then announced that it would not be warranted in finding that he would not be an impartial juror and instructed the juror not to discuss the matter with any other jurors. The juror continued his service with the jury. No objection was then made by any of the parties.

The parties are entitled to a trial by an impartial jury. Matters which come to the attention of the trial judge after trial has commenced which may affect impartiality on the part of a juror or jurors command careful consideration. The taint of partiality must be removed. But in doing so, great care must be exercised in order to avoid compounding the problem.

In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), it appeared that during the trial of the case a juror informed the trial court of an improper statement that had been made to him about the case. The judge informed the prosecuting attorneys. As a result, the Federal Bureau of Investigation contacted the juror and made its report, which was considered by the judge and the prosecutors. It was concluded that the statement made to the juror was made in jest, and the matter was dropped. In remanding the case with directions that the district court hold a hearing to determine whether the incident was harmful, the Supreme Court at pages 229 — 230, at pages 451 of 74 S.Ct. commented as follows:

* * * The sending of an F.B.I. agent in the midst of a trial to investigate a juror as to his conduct is bound to impress the juror and is very apt to do so unduly. A juror must feel free to exercise his functions without the F.B.I. or anyone else looking over his shoulder. The integrity of jury proceedings must not be jeopardized by unauthorized invasions. The trial court should not decide and take final action ex parte on information such as was received in this case, but should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.

Subsequently, in Remmer v. United States, 350 U.S. 377, 76 S.Ct. 425, 100 L.Ed. 435 (1956), the Supreme Court remanded the case to the district court for a new trial after concluding that the hearing held pursuant to the first remand “ * * * reveals such a state of facts that neither [the juror] nor anyone else could say that he was not affected in his freedom of action as a juror.” See also Rubenstein v. United States, 227 F.2d 638 (10th Cir. 1955).

In the instant case the experienced trial judge decided to hold a hearing in chambers after full consultation with all parties. At the completion thereof, the juror was directed to continue to participate in the trial and cautioned not to reveal the matter to other jurors. No objection was then made by either party. These proceedings were conducted after the evidence was closed and in such a manner as to avoid curiosity on the part of other jurors. We are satisfied that no error was committed.

III.

Before passing sentence, the trial court observed that “ * * * in a case involving two illegal sales of heroin, it would be an impermissible deviation from sentencing standards to place the defendant on probation, even if he had no prior offense.” Similar comments were made by the court with respect to appellant’s record of a prior offense. Appellant reads these remarks as an indication that the court misunderstood his sentencing options under the statute, which included probation. The contention is frivolous.

Affirmed.

      . The Honorable William H. Becker, Chief Judge, Western District of Missouri, initially sentenced defendant for a study and report under 18 U.S.C. § 4208(b). Ultimate sentence imposed was two years imprisonment on Count I to be followed by three years probation on Count II; mandatory parole term of three years under 21 U.S.C. § 841 to follow release on Count I and probation on Count II.

      . The court indicated to counsel that had the conviction record been disclosed on voir dire, it would have sustained a challenge for cause under 28 U.S.C. § 1866(c)(2).


text:
    T. Eugene THOMPSON, Petitioner-Appellant, v. Bruce McMANUS, Warden, Minnesota State Prison, Respondent-Appellee.
    No. 74-1568.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 6, 1975.
    Decided March 21, 1975.
    Certiorari Denied June 9, 1975.
    See 95 S.Ct. 2421.
    Peter J. Thompson, Community Defender, Minneapolis, Minn., for petitioner-appellant.
    Counsel for respondent-appellee was not present when the case was submitted to the Court.
    Before JOHNSEN, Senior Circuit Judge, and STEPHENSON and WEBSTER, Circuit Judges.
   STEPHENSON, Circuit Judge.

Petitioner-appellant T. Eugene Thompson appeals from a denial of habeas corpus relief by the district court. Thompson, an inmate of the Minnesota State Prison since 1963, is serving a life sentence after conviction of the charge of causing the murder of his wife. He asserts he is held in custody in violation of his federal constitutional rights because: (1) Prejudicial pretrial publicity, which continued during his trial, prevented a fair trial; (2) the prosecutor used evidence obtained by an illegal search and seizure; (3) the prosecutor failed to disclose exculpatory evidence; (4) the state court failed to grant a new trial on the basis of newly discovered evidence; (5) the petitioner was denied the right to confront witnesses because hearsay evidence was admitted; (6) the grand jury considered hearsay evidence; and (7) appellant was denied the effective assistance of counsel. We affirm on the basis of the district court’s comprehensive opinion reported at 377 F.Supp. 589.

After a change in venue from Ramsey to Hennepin County, the appellant was tried and convicted of first degree murder. The jury conviction was affirmed by the Minnesota Supreme Court. State v. Thompson, 273 Minn. 1, 139 N.W.2d 490, cert. denied, 385 U.S. 817, 87 S.Ct. 39, 17 L.Ed.2d 56 (1966). Appellant sought relief by petition for writ of habeas corpus, but the action was premature and was dismissed without prejudice for failure to exhaust state remedies. Thompson v. Tahash, 286 F.Supp. 663 (D.Minn.1968). Thereafter, lengthy post-conviction relief hearings were held, but relief was denied. The Minnesota Supreme Court affirmed. Thompson v. State, 289 Minn. 270, 183 N.W.2d 771 (1971). Subsequently, the present § 2254 proceeding was instituted. A hearing was held at which testimony in deposition form was received, exhibits filed, the records of all prior proceedings made available, extensive briefs submitted, and oral arguments presented.

The facts of the case are fairly summarized by the Minnesota Supreme Court in State v. Thompson, 273 Minn., 1, 139 N.W.2d 490 (1966), and, where applicable to the points raised, further summarized in the district court’s opinion.

The contentions raised by the appellant in this appeal were thoroughly ventilated by the district court. Thompson v. McManus, 377 F.Supp. 589 (D.Minn. 1974).

Brief additional comments will be made with respect to appellant’s contention that illegally seized evidence and the fruits thereof were admitted in his trial.

Mrs. Thompson was assaulted in her home between 8:30 and 9:00 a. m. on March 6, 1963. She struggled to the residence of her neighbor (Mrs. Nelson), from where the police were called. They arrived about 9:15 a. m. and entered the Thompson home through an open front door. Among other things, they noted a large pool of blood in the front entryway, drawers of a nightstand open, drawers of a closet chest of drawers open, and blood and disarray in the master bedroom. Finding no assailant or other victim, they left the house, sealed it off to the public by posting guards, and awaited the arrival of crime-lab specialists. Within a short while the investigative unit arrived and made a thorough search. It is the evidence seized during this alleged second search that is the basis of appellant’s objection.

Appellant was at his law office when he was contacted by the Nelsons. He drove to the Nelson residence where he was advised that his wife had been taken to the hospital. He then went to the hospital. While at the hospital, appellant discussed with Lt. Barkley of the St. Paul Police Department the possibility of robbery as a motive. When the investigative unit arrived at appellant’s home at 10:35 a. m., they were requested to examine a filing cabinet in the basement for the purpose of determining whether there was some money there.

There can be no question that the initial intrusion into appellant’s home was appropriate as a search for the assailant and other possible victims. It was justifiable as an entry made in hot pursuit, and the exigencies of the situation made that course imperative. Warden v. Hayden, 387 U.S. 294, 298, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); United States v. Goldenstein, 456 F.2d 1006 (8th Cir. 1972); compare Root v. Gauper, 438 F.2d 361 (8th Cir. 1971). Appellant agrees to the propriety of the initial intrusion but contends that the second entry by the investigative unit approximately an hour later without a search warrant was not justifiable because the emergency no longer existed. Golden-stein, supra; Root, supra.

We are satisfied that the entry by the investigative unit, whether it be termed a second entry or a continuance of the first, was proper because the police had reasonable grounds to believe that it was authorized by appellant. When appellant arrived at the Nelsons’, it was readily apparent that the police were searching his home. A short time later at the hospital he was a cooperating, aggrieved husband who assisted the police by discussing robbery as a motive for the brutal assault. Appellant was not a suspect. The police in this emergency situation were searching for clues that might lead to the apprehension of the culprit with the approbation and assistance of the victim’s husband. We agree with the trial court that under the circumstances the illegal search claim was properly denied by the state courts.

We conclude that no useful purpose would be served by discussing the other issues raised in this appeal.

Affirmed.

      . The United States District Court for the District of Minnesota, Honorable Edward J. Devitt, Chief Judge.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles H. BUSH, Defendant-Appellant.
    No. 74-3902
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 8, 1975.
    William C. Calhoun, Augusta, Ga., for defendant-appellant.
    R. Jackson B. Smith, Jr., U. S. Atty., Edmund A. Booth, Jr., Asst. U. S. Atty., Augusta, Ga., for plaintiff-appellee.
    Before GEWIN, GOLDBERG and DYER, 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:

Appellant Charles Bush was found guilty by a jury on a one-count indictment charging him with income tax evasion for the calendar year 1971 in violation of 26 U.S.C. § 7201. On appeal, he contends (1) that his motion to suppress certain evidence should have been granted and (2) that he was entitled to a judgment of acquittal because the government allegedly failed to carry the burden of proof as to his net worth. We find no merit in either contention and we affirm the judgment of conviction.

Appellant argues that evidence obtained from him during the first interview with Internal Revenue Service personnel should have been excluded at trial. He asserts that he did not properly waive his right to have an attorney present at the interview and that the government agents used fraud and deceit to encourage him to proceed with the interview unassisted by an attorney. We have carefully reviewed the record, including a transcript of the interview in question, and we find that appellant was given the Miranda-like warnings pursuant to established I.R.S. procedures, that he understood his right to counsel, and that he intelligently, knowingly, and willingly chose not to have counsel present. Furthermore, we can find nothing in the record to support his allegation of fraud and deceit on the part of the government agents. We hold that appellant has failed to meet his burden of proof on this issue. See United States v. Dawson, 486 F.2d 1326 (5th Cir. 1973); United States v. Tonahill, 430 F.2d 1042 (5th Cir. 1970).

At the trial, a government witness testified that, in computing appellant’s income by the net worth method, appellant was given credit for zero cash on hand both at the beginning and at the end of the tax year under consideration. Appellant contends that this was improper because he had related to I.R.S. personnel that he had certain sums of money at the beginning and at the end of the year 1971. There is, however, other evidence to support the government’s use of the zero cash on hand figure. For example, an amended joint tax return filed by appellant for 1971 reflected zero cash on hand at the end of the calendar years 1970 and 1971. Moreover, we note that, since a zero cash on hand figure was used for the beginning as well as the end of the tax year, this did not affect the determination of appellant’s income for 1971 because the net worth method of computation depends on increases in assets to reflect income. With reference to cash on hand, the government gave appellant the benefit of the doubt by not finding an increase in his net worth in that respect. The government did not fail to meet its burden of proof as to appellant’s net worth as argued, and, accordingly, he was not entitled to a judgment of acquittal.

Affirmed.


author: PER CURIAM: PER CURIAM:

text:
    Charles Lester JACKSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74—4073
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 8, 1975.
    Rehearing Denied June 16, 1975.

      Richard T. Simmons, Jr., Asst. Federal Public Defender, New Orleans, La., for petitioner-appellant.
    Gerald J. Gallinghouse, U. S. Atty., Mary W. Cazalas, Asst. U. S. Atty., New Orleans, La., for respondent-appellee.
    Before COLEMAN, AINSWORTH 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.

   PER CURIAM:

Appellant, represented by court-appointed counsel, was convicted on his plea of guilty of distribution of heroin, a violation of 21 U.S.C. § 841(a)(1). He was sentenced on September 20, 1972 to five years imprisonment and a three year special parole term.

In his § 2255 motion appellant alleged that the arraigning magistrate and the trial judge were aware that he was undergoing withdrawal from heroin addiction and therefore, he was incompetent to plead guilty; also, he suffered a respiratory ailment, was refused medication while incarcerated awaiting trial, and decided to plead guilty to obtain medication. He contends that under these circumstances his plea was invalid. The District Court conducted an evidentiary hearing on November 13, 1974. Relief was denied in an order filed December 3, 1974 with findings of fact set out in an order filed January 31, 1975.

The record shows that appellant was on methadone from July, 1971 to June, 1972, but began shooting heroin on June 29, 1972 until he was arrested on July 27, 1972. He was kept incarcerated until August 30, 1972, when he pled guilty. Thus more than a month elapsed that he was not on heroin. Trial counsel testified that at his first interview with appellant, on August 16, 1972, appellant admitted his guilt and stated his wish to plead guilty. Counsel stated that appellant appeared alert, logical, and remembered the facts surrounding his arrest. Appellant testified that he understood the proceedings at which he pled guilty and that his plea was entered to expedite his removal from the parish prison.

Addiction to narcotics does not per se render a defendant incompetent to enter a guilty plea, Warren v. United States, 5 Cir., 1974, 488 F.2d 862; United States v. Williams, 5 Cir., 1972, 468 F.2d 819; Howard v. United States, 5 Cir., 1970, 420 F.2d 478; Sanchez v. United States, 5 Cir., 1968, 401 F.2d 771, cert. denied 394 U.S. 962, 89 S.Ct. 1313, 22 L.Ed.2d 564. The District Court found that the appellant understandingly pled guilty. That finding is supported by the transcript of the arraignment and the testimony of appellant and his attorney at the evidentiary hearing. At the arraignment, appellant stated that he understood the charges, that he took time to discuss possible defenses, and that the plea was freely and voluntarily entered. Where the trial court has scrupulously followed Rule 11, F.R.Cr.P., the defendant is bound by his statements in response to that court’s inquiry, Frank v. United States, 5 Cir., 1974, 501 F.2d 173; Bryan v. United States, 5 Cir., 1974, 492 F.2d 775. Furthermore, at the hearing on the § 2255 motion appellant admitted his guilt.

The judgment of the District Court denying § 2255 relief is

Affirmed.

ON PETITION FOR REHEARING

PER CURIAM:

It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied. By a writ of habeas corpus ad testificandum Charles Lester Jackson was given a full hearing in the District Court, which subsequently found that his addiction to narcotics had not infected the voluntary character of his plea of guilty. See, Gibilterra v. United States, 9 Cir., 1970, 428 F.2d 393.


text:
    The SUMITON BANK, Plaintiff-Appellant, v. FUNDING SYSTEMS LEASING CORPORATION, Defendant-Appellee.
    No. 74-1927.
    United States Court of Appeals, Fifth Circuit.
    May 8, 1975.
    Eugene D. Martenson, Birmingham, Ala., for plaintiff-appellant.
    John H. Morrow, Stanley D. Bynum, Birmingham, Ala., for defendant-appellee.
    Before BROWN, Chief Judge, and GODBOLD and CLARK, Circuit Judges.
   PER CURIAM:

The bank claims against the drawer of a check deposited with it. The check was order paper. The signature of the payee as purported indorser was forged. Below it was added the signature of another entity, which we will assume was an authorized signature.

The forged signature of the payee was inoperative to make the bank a holder, Code of Ala., Tit. 7A, §§ 1— 201(20); 3-201; 3-202; 3-404 (1966); nor did the presumably valid second signature convert the order paper to bearer paper. See Code of Ala., Tit. 7A, §§ 3— 201; 3-202(1), (2); 3-204(2); 3-404(1); 1-201(20) (1966).

The decision in favor of the drawer is affirmed.

      . Which makes it unnecessary for us to consider the bank’s claim that it was a holder in due course and therefore took free of defenses of the drawer. See Code of Ala., Tit. 7A, §§ 3-302(1); 1-201(20) (1966).


text:
    Jim ROBINSON et al., Plaintiffs-Appellees, v. J. Stanley POTTINGER, Asst. Attorney General of the United States of America et al., Defendants, William P. Nunn et al., Intervenors-Appellants.
    No. 74-3486.
    United States Court of Appeals, Fifth Circuit.
    April 24, 1975.
    See also, D.C., 376 F.Supp. 615.
    William R. Gordon, Montgomery, Ala., for intervenor-appellant.
    Joseph D. Phelps, Charles A. Stakely, Jr., Montgomery, Ala., for Robinson and others.
    Ira DeMent, U. S. Atty., Kenneth E. Vines, Asst. U. S. Atty., Montgomery, Ala., Gerald W. Jones, Marie Klimesz, Attys., U. S. Dept, of Justice, Washing-tin, D. C., for Pottinger and others.
    Solomon S. Seay, Jr., Montgomery, Ala., for Charles Varner, Jr.
    Before GEWIN, BELL and CLARK, Circuit Judges.

      . Under § 5 of the Voting Rights Act we are doubtful that the Attorney General is authorized to render advice or suggestions as to the validity of the' legislation of the type here involved if he renders no objection to the legislation. The Act authorizes the Attorney General to object to state voting legislation, to render no objection to the same, or to make no response — which is considered tantamount to no objection. In this case, as indicated, he rendered no objection but suggested the existence of possible constitutional infirmities.

   PER CURIAM:

The only issue presented on this appeal is whether Act 618, Acts of Alabama, Regular Session 1973, commonly known as the Mayor-Council Act of 1973, is a general act of local application and therefore valid, or a local law and therefore invalid because it was not advertised as such pursuant to state constitutional and statutory provisions. We affirm the judgment of the district court holding that the Act is a general law of local application and is constitutional.

This case originated as a class action filed by the plaintiffs-appellees on behalf of all registered voters in the city of Montgomery, Alabama, seeking a declaratory judgment as to the constitutionality of the Mayor-Council Act. The Act provides a means by which cities having a population of not less than 70,000 nor more than 135,000 may adopt the mayor-council form of government. The City Attorney of the City of Montgomery submitted the Act to the Attorney General of the United States for approval under the provisions of § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. See Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973); Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971); Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969); South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966).

Assistant Attorney General J. Stanley Pottinger, Civil Rights Division, responding for the Attorney General, informed the City Attorney that “the Attorney General does not interpose an objection to the changes involved” in the Act. In his letter, however, the Assistant Attorney General did question the constitutionality of two provisions of the Act, one requiring qualifying fees from candidates and the other requiring that may- or and city council candidates receive a majority, rather than a plurality, of the vote.

Upon learning of the questions raised by Mr. Pottinger, Montgomery Mayor Jim Robinson and certain other citizens brought this class action seeking a declaratory judgment as to the constitutionality of the Mayor-Council Act in order to remove the “cloud of uncertainty” which they claimed had been caused by the Assistant Attorney General’s letter. Their complaint sought a judgment that the sections of the Act referred to by Mr. Pottinger were constitutional. The named defendants were Attorney General William Saxbe, Assistant Attorney General Pottinger, and Perry O. Hooper, the probate judge of Montgomery County who is charged with administering elections and referenda in Montgomery.

William P. Nunn and others moved to intervene in the action and their motion was granted. In their cross-complaint, the intervenors raised, for the first time in the litigation, the issue which is before us on appeal, whether the Mayor-Council Act is a “local law” and therefore invalid because it was not advertised pursuant to Alabama law before enactment.

Defendants Saxbe and Pottinger asserted that the district court did not have jurisdiction over them and moved to dismiss. This motion was denied. However, they did not appeal since the district court did not order any relief against the United States. In a brief filed on this appeal, these federal defendants stated “there would appear to be no federal interest at stake in this appeal.”

The district court found §§ 3.02 and 4.02 dealing with qualifying fees violative of equal protection and ordered them deleted from the Act. The court rejected the contention that §§ 1.07 and 4.01 requiring a plurality vote affected a dilution of individual voting rights. After ordering the appendix establishing district lines for Montgomery severed from the Act, the court found that the Act was complete, intelligible, and capable of being validly executed, and that the Act was a general, rather than a local law, and therefore was valid. It is this issue alone that is before us on appeal: whether the Mayor-Council Act of 1973 is a local law as opposed to a general act of local application, which was not advertised and is therefore unconstitutional.

The decree and judgment of the district court is attached hereto as Appendix A. We conclude that the appellants have failed to demonstrate that error was committed. Since the district court retained jurisdiction of this litigation pending the adoption of district lines by the City Commission within a specified time, we affirm the judgment and remand the case for such proceedings as may be appropriate. The mandate shall issue immediately.

Affirmed and remanded.

APPENDIX A

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION JIM ROBINSON; ET AL, Plaintiffs, VS. I CIVIL ACTION J. STANLEY POTTINGER, Etc.; [ NO. 74-49-N ET AL, Defendants.

JUDGMENT

This cause is now submitted for final determination upon a stipulation of facts and briefs of the parties. The Plaintiffs and the class they represent bring this suit for a declaratory judgment seeking to have declared the constitutionality of Act No. 618, Acts of Alabama, Regular Session 1973. Act 618 is, allegedly, a general act of local application providing a method by which cities having a population of not less than 70,000 nor more than 135,000 might adopt the may- or/council form of government. In anticipation of utilizing this method of governmental change and of giving the voters of Montgomery an opportunity to adopt the mayor/council form of government, the City Attorney submitted Act 618 to the Attorney General of the United States on December 7, 1973, for approval pursuant to the Civil Rights Act of 1965 (42 U.S.C. § 1973 et seq.). The Attorney General of the United States, through his assistant, J. Stanley Potting-er, responded on February 4, 1974, by expressing no objection to the Act based upon his duties under the Civil Rights Act of 1965. However, he did question the constitutionality of two portions of the Act. The Plaintiffs, upon discovering that questions had been raised by the Attorney General filed their bill for declaratory judgment action on February 20, 1974.

The Court on February 22, 1974, found that the suit was properly maintainable as a class action and required notice to be given the prospective class members. On March 18, 1974, William P. Nunn, Paul L. Smith and L. N. Duncan intervened in the case, through their attorney, William R. Gordon, and challenged the constitutional validity of the Act. On the same day, Charles Varner, Jr., made an appearance in the suit, through his attorney, Solomon S. Seay, Jr., and questioned the validity of the council district lines as drawn by the Alabama Legislature and as attached as an appendix to the Act.

The contention of Charles Varner, Jr., is moot since he stated in the proposed submission filed on August 8, 1974, that he would accept the district lines drawn anew by the Plaintiffs.

The Interveners raised numerous objections to the validity of Act 618, only three of which they insist upon in brief. Two of these questions were initially raised by Pottinger. They are (1) whether § 3.02 and § 4.02, requiring a qualifying fee from candidates, is violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution and (2) whether §§ 1.07 and 4.01, requiring that a candidate for the office of mayor receive a majority of the vote rather than a plurality, is violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution. The third question in two parts is (a) whether the Act is general or local as ^defined by Alabama law and (b) whether, if the Act is local, failure to advertise the Act renders it void as violative of the State Constitution. The parties stipulate that the Act was never advertised as a local act.

This Court is of the opinion that Act 618 is general in nature and is, therefore, valid. “It is the duty of the courts to sustain the constitutionality of a legislative act unless it is clear beyond a reasonable doubt that it is in violation of the fundamental law.” State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487, 121 A.L.R. 283; Norton v. Lusk, 248 Ala. 110, 26 So.2d 849; Brittain v. Weatherly, 281 Ala. 683, 207 So.2d 667. It is further the duty of the courts not to construe a law as local, when it is worded and framed in a way which allows interpretation as a general law, even though interpretation as a general law is less natural than interpretation as a local law. State ex rel. Coliman v. Pitts, 160 Ala. 133, 49 So. 441; State ex rel. Montgomery v. Merrill, 218 Ala. 149, 117 So. 473; Brittain v. Weatherly, supra.

It has been consistently held that, a law is general even though an act when passed applies to one city only, if the act will apply to all other cities as they come within the class described by the law. Taxpayers and Citizens of City of Mobile v. Board of Commissioners of City of Mobile, 252 Ala. 446, 41 So.2d 597; Reynolds v. Collier, 204 Ala. 38, 85 So. 465; Brittain v. Weatherly, supra.

Population is the basis of classification used by the Legislature in this type legislation and scrutinized by the courts for constitutional validity. The Alabama Appellate decisions hold that, where there is a substantial difference in population and the classification is made in good faith, reasonably related to the purpose to be effected and to the differences in population which forms the basis thereof and is not merely arbitrary, it is a general law. Reynolds v. Collier, supra; Opinion of the Justices, 275 Ala. 409, 155 So.2d 513.

Act 618 proposes “to provide a form of municipal government to be known as the Mayor-Council form of government, which may be adopted by any city in the State of Alabama having a population of not less than 70,000 nor more than 135,-000.” Act No. 618, Acts of Alabama, Regular Session 1973, page 879.

Upon review of Act 618 and in comparison with previous legislative acts of a similar nature declared constitutional by the courts, it is the opinion of this Court that the population classification involved in Act 618 is established in good faith and reasonably relates to the purpose to be effected and to the difference in population which forms the basis thereof. In Brittain v. Weatherly, supra, the Court approved a population classification of between 30,000 and 45,000 in a similar legislative act.

The Interveners, however, do not strongly argue the invalidity of the population classification but, rather, attack the Act’s inapplicability to any city in Alabama other than Montgomery. They point out that the Legislature included as an appendix to the Act a specification of the initial council districts, designating the geographical location of those districts by reference to Montgomery landmarks and street names. Furthermore, in the body of the Act at §§ 1.07 and 7.01 reference is made to the appendix as the source of the initial council districts. The procedure for establishing the initial council districts which is provided in the Act is clearly applicable to Montgomery only. No other means of establishing initial council districts is set forth in the Act.

The question before the Court then is whether, in the absence of a provision for the establishment of initial council districts for cities other than Montgomery, the law must be considered a local law. The test is, not whether the Act is applicable to only one city at its inception, but whether other cities might be able to use the Act at some future time. Reynolds v. Collier, supra; Brittain v. Weatherly, supra. The claimed deficiency in the Act is its failure to provide a procedure by which initial council districts might be adopted by other cities. While this deficiency might lead to confusion in the implementation of the Act, it may not rise to the significance of constitutional fatality if the Code otherwise provides a procedure therefor.

Embodied in the general laws of municipal corporations are various provisions empowering the governing bodies of the municipalities by ordinance to draw districts or wards for the purpose of furthering governmental ends. Code of Alabama, Title 37, §§ 7 and 96. In the absence of any valid provision in Act 618 providing a method of drawing districts, these provisions of the Alabama Code must be consulted. The duty of establishing initial council districts falls upon the existing governing body of the municipality seeking to utilize the law. Subsequent redistricting shall be accomplished in accordance with the provisions of Act 618.

The initial district lines having been drawn by the State Legislature for Montgomery alone, they constitute provisions purely local in nature. As such, they cannot stand with an act of an otherwise general character.

Furthermore, the appendix is an addition to the Act not referenced in the title and, as such, is void. Wilkins v. Woofe, 281 Ala. 693, 208 So.2d 74; Kendrick v. Boyd, 255 Ala. 53, 51 So.2d 694. Section 45 of the Alabama Constitution requires that any subject matter covered in the Act must be summarized in the title or that portion of the Act is void. The fact that a portion of the Act fails for this reason does not render the whole Act void. State ex rel. Clarke v. Carter, 174 Ala. 266, 56 So. 974; State ex rel. Harmon v. Murphy, 211 Ala. 663, 101 So. 465. Therefore, the appendix must be severed from the Act.

The Plaintiffs contend that, even though this portion of the Act should be rendered void, the district lines may still be drawn or approved by this Court. In support of this proposition, the Plaintiffs cite Yelverton v. Driggers, 370 F.Supp. 612 (M.D.Ala.1974) and Mahon v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973). These cases, however, are inapplicable. In Yelverton, the Court has not attempted the redistricting. It stayed the case so as to afford local authority an opportunity to perform a local duty. The Court in Mahon was called upon to determine the validity of districts drawn by a body empowered to do so, which erroneously performed its duty to redistrict, and in so judging, the Court assumed the duty to supervise a valid drafting of district lines after local authorities had failed. This Court is called upon to, in effect, establish anew the initial districts for Montgomery and, thereby, by-pass the procedure set up by State law. Code of Alabama, Title 37, §§ 7, 96. While the initial districts established by the Alabama Legislature as amended and agreed to by parties to this cause, in the light of suggestions by the Plaintiffs’ attorneys and Charles Varner’s attorney may be helpful, they are not legally binding. The initial district lines must be drawn by the Board of Commissioners of the City of Montgomery. Absent a showing that that group, acting under color of State law, has abrogated its official duty, this Court should not exercise its broad equity powers to interfere. Swann v. Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554, see also Yelverton v. Driggers, supra, 370 F.Supp. at 619.

In his letter of February 4, 1974, the Attorney General raises two questions which cast doubt upon the constitutional validity of Act 618. The Interveners join in raising these questions and argue these points in brief. They argue, first, that § 3.02 and § 4.02 of the Act, requiring that a qualifying fee accompany a statement of candidacy, denies equal protection of the laws. This argument is convincing in view of the recent Supreme Court decision of Lubin v. Ponish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702. The Court reviewed California statutes which require that qualifying fees accompany the statement of candidacy. The Court held that, in the absence of reasonable alternative means of ballot access, a state may not, consistent with constitutional standards, require from an indigent candidate filing fees he cannot pay.

Section 3.02 provides that the statement of candidacy for the office of councilman “shall be accompanied by a qualifying fee in the amount of $150.00” (emphasis added). Section 4.02 provides that the statement of candidacy for the office of mayor “shall be accompanied by a qualifying fee in the amount equal to $300.00” (emphasis added). No alternative means of ballot access is provided by the Act. Therefore, it is the opinion of this Court that the portions of §§ 3.02 and 4.02 which deal with qualifying fees deny equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution.

The fact that §§ 3.02 and 4.02 are unconstitutional does not, however, render the entire Act impotent. Section 11.02 provides:

“If any section or part of section of this act shall be held invalid by a court of competent jurisdiction, such holding shall not affect the remainder of this act nor the context in which such section or part of section so held invalid may appear, except to the extent that an entire section or part of section may be inseparably connected in meaning and effect with the section or part of section to which such holding shall directly apply.”

The provisions of §§ 3.02 and 4.02 requiring a filing fee may be deleted from the Act and the meaning and effect of the Act will be unaltered. Applicants seeking to qualify for the ballot would then be required to meet all the prerequisites set out in the Act with the exception of the filing fee requirement. The courts have consistently given effect to separability clauses. See Opinion of the Justices, 284 Ala. 626, 227 So.2d 396; Hamilton v. Autauga County, 289 Ala. 419, 268 So.2d 30. It is the opinion of the Court that this portion of Act 618 is separable.

The second question raised by the Attorney General and argued by the Interveners is whether §§ 1.07 and 4.01 of the Act affect a dilution of the individual’s voting rights. This contention by the Interveners, in the opinion of this Court, is without merit.

The Interveners cite Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, for the proposition that a person’s individual vote should not be diluted by any means. There is no question that this is the law. However, no dilution of individual votes is perpetrated by this Act and the Interveners have cited no cases that hold otherwise.

Interveners also cite in support of their proposition Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971) and White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), which cases they admit are not directly in point. These cases deal with the propriety of multi-member districts in certain situations where there was strong evidence that the purpose of the districting was to deny voting strength to minority groups. Here we have single-member districts and the Attorney General has indicated that the proposed districting “does not have the purpose * * * or effect of abridging” voting privileges on account of race. Act 618 provides that the mayor shall be elected at large and the councilmen shall be elected from single-member districts.

The Court, having been cited no cases supporting the Interveners’ position and having scrutinized the election process as described in the Act, is of the opinion that no individual’s voting strength is diluted thereby.

While certain portions of Act 618 have been held invalid, the purpose of the Act can still be accomplished by implementation of the remaining sections. In view of the lengthy delay already caused by administrative and judicial examination of the Act and in view of the right of the City’s citizenry to either accept or reject the proposed change of government, the Court is of the opinion that the proposed change of government should be submitted to the voters as soon as is reasonably possible. Before submission to the voters can be contemplated, however, initial council districts must be drawn. As heretofore pointed out, the responsibility therefore rests with the presently constituted governing body of the City of Montgomery, that being the City Commission of the City of Montgomery. The proposed districting must thereafter be submitted for approval of either the Attorney General of the United States or of the United States District Court for the District of Columbia pursuant to 42 U.S.C. § 1973c.

Council districts have been drafted both by the parties which, if adopted by the City Commission, apparently would not “have the purpose and [would] not have the effect of denying or abridging the right to vote on account of race or color” (parenthetical expression added), within the requirements of 42 U.S.C. § 1973c. The City Commission may wish to draft a different set of districts, however. This they have a right to do. The Court is of the opinion that a period of 30 days is a reasonable time within which to either approve one of the tentative drafts already submitted to the Court or draft district lines anew. It is the

Order, judgment and decree of this Court as follows:

1. That Act No. 618, Acts of Alabama, Regular Session 1973, be, and the same is hereby, declared to be general in nature;

2. That the district lines drawn by the Legislature for the City of Montgomery are provisions purely local in nature and, not having been advertised, are invalid and are hereby stricken from the Act;

3. That the portions of §§ 3.02 and 4.02 dealing with qualifying fees be, and the same are hereby, deleted from the Act, leaving intact the remainder of §§ 3.02 and 4.02; and

4. That §§ 1.07 and 4.01 of Act 618 be, and the same are hereby, declared to be constitutional.

This Court retains jurisdiction of this matter pending the adoption of district lines by the City Commission within 30 days from the date of this order.

Done this 10th day of September, 1974.

/s/ R. L, Varner_■_ , United States District Judge

      . Act 618, §§ 3.02, 4.02, Acts of Alabama, Regular Session 1973.

      . Act 618, §§ 1.07, 4.01, Acts of Alabama, Regular Session 1973.

      . An additional party, Charles Varner, Jr., made an appearance before the district court and alleged that the council district lines as they were then drawn resulted in a dilution of black voting strength. Since that time, the lines have been revised and Varner has stated to the district court that he has no further objections. Varner has not appealed.

      . Although none of the parties to this appeal have questioned the jurisdiction of either the district court or this court to consider the issues presented, supplemental briefs dealing with that issue were requested at oral argument. The plaintiff-appellees contended that their complaint as amended was predicated on the following: the 14th Amendment to the Constitution; Title 28 U.S.C. § 1331, authorizing actions arising under the Constitution, laws or treaties of the United States; Title 28, U.S.C. § 1343, authorizing redress for the deprivation of elective franchise under state law; Title 28 U.S.C. §§ 2201 and 2202, providing for declaratory judgments; and the Administrative Procedure Act, Title 5 U.S.C. § 702. The appellees further asserted that, as voters of the city of Montgomery, they were directly, substantially, and adversely affected by the constitutional challenges made by Assistant Attorney General Pottinger and by “the cloud of uncertainty” which arose as a result of the opinions volunteered by Mr. Pottinger. As indicated in footnote 4, supra, one of the intervenors, during the course of the proceedings, alleged that the Act had a dilutive effect on minority voting strength in some instances. We are convinced that the allegations of the complaint were sufficient to confer jurisdiction on the district court.

      . This may present further problems as to the approval by the Attorney General heretofore obtained.

      . “Sec. 106. No special, private, or local law shall be passed on any subject not enumerated in section 104 of this Constitution, except in reference to fixing the time of holding courts, unless notice of the intention to apply therefor shall have been published, * *

      . “§ 7. The councils of the several cities may, by ordinance, divide such city into not less than three nor more than fourteen wards, except as otherwise provided herein, and the numbers and boundaries of such wards may be fixed and changed at any time, except as herein restricted.”
      “§ 96. The commissioners of such city, to be known as the board of commissioners of such city, shall have, possess and exercise all the powers and authority, legislative, executive and judicial, theretofore possessed by the may- or, or governing body or bodies of said city, by whatsoever name called, * * *.”


text:
    GEORGIA-PACIFIC CORP., Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
    No. 75-1344.
    United States Court of Appeals, Fifth Circuit.
    May 9, 1975.
    James W. McCartney, Albert S. Tabor, Jr., Houston, Tex., for petitioner.
    J. David Mann, Jr., Washington, D. C., for Laclede Gas Co.
    Richard P. Noland, Washington, D. C., for Gen. Motors.
    Drexel D. Journey, Gen. Counsel, George W. McHenry, Jr., Sol., William J. Grealis, Atty., Washington, D. C., for respondent.
    Wm. W. Bedwell, Washington, D. C., for Miss. River Trans. Corp.
    Before BELL, CLARK and RONEY, Circuit Judges.
   PER CURIAM:

The Federal Power Commission (FPC) has filed a motion to dismiss for improper venue Georgia-Pacific Corporation’s (GPC) petition for review of a FPC order of December 26, 1974, denying rehearing of a FPC order of November 14, 1974, which denied GPC’s request for extraordinary relief from the curtailment plan of Mississippi River Transmission Corporation (MRT), previously approved by FPC. GPC has responded by alternatively opposing dismissal and moving this Court to transfer the petition to the Court of Appeals for the District of Columbia Circuit, wherein venue is unquestionably proper under § 19(b) of the Natural Gas Act. 15 U.S.C.A. § 717r(b).

Proper venue for review of an FPC order is in the circuit “wherein the natural gas company to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia . . ..” 15 U.S.C.A. § 717r(b) (emphasis added). The natural gas company to which the orders GPC seeks to have reviewed relate is Mississippi River Transmission Corporation. GPC was involved in the FPC proceeding only as a customer of MRT, not as the natural gas company, although it is a natural gas company. MRT is incorporated, and therefore “located” in Delaware, which is in the Third Circuit. FPC v. Texaco, Inc., 377 U.S. 33, 37-39, 84 S.Ct. 1105, 12 L.Ed.2d 112 (1964). MRT maintains its executive offices in St. Louis, Missouri, and operates its pipeline system in Missouri, Illinois and Arkansas. Therefore, its “principal place of business” must be in either the Seventh Circuit (Missouri and Illinois) or Eighth Circuit (Arkansas). It is clear, then, that venue is improper in this Circuit. It is equally clear that venue does exist in the District of Columbia Circuit. The only issue which remains is whether this Court should dismiss the case or grant GPC’s motion to transfer it to the District of Columbia Circuit.

It should be noted initially that the Natural Gas Act’s provision for the place to file a petition for review involves only matters of venue and not a question of jurisdiction. We have jurisdiction over the petition. Panhandle Eastern Pipe Line Co. v. FPC, 324 U.S. 635, 638-639, 65 S.Ct. 821, 89 L.Ed. 1241 (1945).

This Court previously declined to transfer a petition for review of a FPC order in Gulf Oil Corp. v. FPC, 330 F.2d 824 (5th Cir. 1964), because of our view, at that time, that in the absence of express statutory authority we were powerless so to transfer. Since our decision in Gulf Oil, which was based partially on the absence of any direct holding to the contrary by other federal Courts of Appeals, a number of circuits have acknowledged the inherent power to transfer a petition for review of an agency ruling to a circuit with proper venue. See, e. g., Municipal Distributors Group v. FPC, 148 U.S.App.D.C. 343, 459 F.2d 1367 (1972); Panhandle Eastern Pipe Line Co. v. FPC, 343 F.2d 905 (8th Cir. 1965); Panhandle Eastern Pipe Line Co. v. FPC, 337 F.2d 249 (10th Cir. 1964). See generally Annot., 22 A.L.R.3d 563 (1968). Although in a different context, the Supreme Court has also said that the Court of Appeals may itself order the transfer of a case even without an express statutory grant of the power to do so. Koehring Co. v. Hyde Construction Co., 382 U.S. 362, 86 S.Ct. 522, 15 L.Ed.2d 416 (1966). In light of these developments we no longer doubt that we have the inherent power to transfer a case such as this one to a jurisdiction of proper venue.

Such a circumstance exists in this case. The time for GPC to file a petition for review in a circuit with proper venue has expired, so that it will be left without judicial review of the FPC orders if we dismiss the suit. There is no allegation or indication that GPC was attempting to achieve anything unlawful, unjust or unfair by bringing its petition in this circuit. GPC merely made a mistake and filed where it, and not the nátural gas company to which the orders relate, is located, GPC being a Georgia corporation and a natural gas company. The FPC has not demonstrated any prejudice that will result from the transfer. We think that justice will best be served by a transfer in such circumstances.

An appropriate separate order of transfer is being entered with the filing of this opinion.