author: JAMES HUNTER, III, Circuit Judge:

text:
    Harry H. and Thelma GIBBS, and Ella Lemar, on Their Own Behalf and on Behalf of All Others Similarly Situated, Appellants in No. 74-1067, Commonwealth of Pennsylvania ex rel. Israel Packel, Intervenor Plaintiff, v. William A. TITELMAN, Individually and as Director of the Bureau of Motor Vehicles of the Commonwealth of Pennsylvania. Appeal of GENERAL MOTORS ACCEPTANCE CORPORATION, in No. 74-1062. Appeal of CHRYSLER CREDIT CORPORATION, in No. 74-1063. Appeal of PROVIDENT NATIONAL BANK, in No. 74-1064. Appeal of GIRARD TRUST COMPANY, in No. 74-1065. Appeal of FORD MOTOR CREDIT COMPANY, Intervenor Defendant, in No. 74-1066.
    Nos. 74-1062 to 74-1067.
    United States Court of Appeals, Third Circuit.
    Argued May 31, 1974.
    Decided Aug. 1, 1974.

      W. Bradley Ward, Ira P. Tiger, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellant in No. 74-1062.
    Oliver C. Biddle, Leonard C. Homer, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for appellant in No. 74-1063.
    Tyson W. Coughlin, Philadelphia, Pa., for appellant in No. 74-1064.
    Gordon W. Gerber, John J. Brennan, Dechert, Price & Rhoads, Philadelphia, Pa., for appellant in No. 74-1065.
    George J. Miller, Dechert, Price & Rhoads, Philadelphia, Pa., for appellant in No. 74-1066.
    David A. Scholl, Chester, Pa., for appellants in No. 74-1067 and for appellees in Nos. 74-1062, 74-1063, 74-1064, 74-1065, 74-1066.
    James R. Adams, Harrisburg, Pa., Lawrence Silver, Philadelphia, Pa., Israel Packel, Harrisburg, Pa., for William A. Titelman and Commonwealth of Pennsylvania.
    Richard A. Hesse, Boston,» Mass., for National Consumer Law Center, Inc., amicus curiae.
    Joseph P. Gaffney, Jr., Harold J. Conner, Philadelphia, Pa., for Pennsylvania Consumer Finance Association, amicus curiae.
    Floyd W. Tompkins, Edward C. Toole, Jr., Alexander D. Kerr, Jr., Clark, Lad-ner, Fortenbaugh & Young, Philadelphia, Pa., for Pennsylvania Credit Union League, amicus curiae.
    Morton Newman, Neal Steinman, Ronald H. Surkin, Blank, Rome, Klaus & Comisky, Philadelphia, Pa., Eli S. Sil-berfeld, New York City, for National Commercial Finance Conference, Inc., amicus curiae.
    Before VAN DUSEN, HUNTER and GARTH, Circuit Judges.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This is an appeal from the judgment of the United States District Court for the Eastern District of Pennsylvania declaring unconstitutional certain provisions of the Pennsylvania Motor Vehicle Sales Finance Act (“MVSFA”) and the Pennsylvania Uniform Commercial Code (“UCC”) insofar as they permit creditors to repossess automobiles peaceably without resort to judicial process upon default by debtors. This Court has jurisdiction pursuant to 28 U.S.C. §§ 2201 & 1291. We reverse.

This case was tried as a class action under the Civil Rights Act, 42 U.S.C. § 1983 & 28 U.S.C. § 1343 based upon the claim that the repossessions of automobiles subject to security interests were made under “color of State law, statute, ordinance, regulation, custom or usage” and in violation of due process because effective without notice and opportunity for a hearing.

Each of the named appellees financed the purchase of an automobile either through an installment sale contract or a loan agreement which required periodic payments over a specified period of time. Each named appellee had created a security interest in his automobile as collateral security for the indebtedness. The agreements provided that, in the event of default by an appellee, the creditor would have the right to retake the automobile, with or without judicial process — a practice commonly referred to as self-help repossession.

The challenged statutes neither compel nor prohibit peaceable self-help repossession. Section 9-503 of the UCC, 12A Pa.Stat. § 9-503 provides:

“Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.”

Section 23 subd. A of the MVSFA, 69 Pa.Stat. § 623, subd. A provides:

“When the buyer shall be in default in the payment of any amount due under a motor vehicle installment sale contract or when the buyer has committed any other breach of contract, which is by the contract specifically made a ground for retaking the motor vehicle, the seller or any holder, who has lawfully acquired such contract, may retake possession thereof. Unless the motor vehicle can be retaken without breach of the peace, it shall be retaken by legal process, but nothing herein shall be construed to authorize a violation of the criminal law.”

The district court found that there was sufficient state involvement to constitute “state action” and held that under Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), lack of prior notice and an opportunity to be heard renders extra-judicial repossession unconstitutional. Since we believe that the requisite “state action” is not present and that therefore a cause of action under 42 U.S.C. § 1983 has not been alleged, we need not reach the due process issue.

It is well-settled that the fourteenth amendment applies only to actions of the “States” and not to actions which are “private.” Under 42 U.S.C. § 1983, the “under color of state law” requirement is the same as the “state action” requirement of the fourteenth amendment. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 n. 7, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); United States v. Price, 383 U.S. 787, 794-795 n. 7, 86 5. Ct. 1152, 16 L.Ed.2d 267 (1966).

Unlike pre-judgment seizures recently considered by the Supreme Court in which state action was clearly present, the seizures complained of here were effected by private individuals without the aid of any state official. Therefore, absent direct state involvement by the State of Pennsylvania, appellees’ claim of “state action” rests on one of two general theories: 1) by comprehensively regulating the field of automobile financing, without prohibiting the practice of self-help repossession, the State of Pennsylvania has become so involved and has so encouraged this private remedy that it becomes “state action,” or 2) by allowing the practice of self-help repossession, the State of Pennsylvania has abdicated or delegated to private individuals a traditional state function, thus infusing the private act of repossession with “state action.”

COMPREHENSIVE STATE REGULATION

Unquestionably the legislature of Pennsylvania, in enacting the MVSFA, comprehensively sought to regulate the area of automobile financing. But the act complained of — i. e., the seizure of appellees’ automobiles — is neither compelled nor prohibited by the MVSFA. The statute simply permits what private parties have agreed upon. Section 23 of the MVSFA, 69 Pa.Stat. § 623 provides that the creditor “may retake possession” peaceably, without resort to legal process, if the default “is by the contract specifically made a grounfl for retaking the motor vehicle.”

. Under the MVSFA, self-help repossession remains a private remedy enforced by purely private conduct pursuant to an agreement made privately and not under state compulsion. Thus, the state plays no significant role. Where, as here, “the impetus for the [act complained of] is private,” we are simply unable to conclude, as required under Moose Lodge v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1972), that the State of Pennsylvania has “significantly involved itself” in the alleged conduct so as to constitute “state action.” (Emphasis added.)

Nor do we believe that by enacting the MVSFA has the State of Pennsylvania formed a “symbiotic relationship” with creditors as was present in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). Cf. Moose Lodge v. Irvis, 407 U.S. 163, 174-175, 92 S.Ct. 1965, 32 L. Ed.2d 627 (symbiotic relationship lacking).

Nor do we find in the statutory scheme the kind of encouragement and fosterage of the alleged unconstitutional act as in Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). In Reitman, the State constitutional amendment repealed prior state legislation regulating racial discrimination in housing. Thus, in effect, the State constitutionally authorized discrimination by repealing prior law and by substantially inhibiting any subsequent change.

The case before us is vastly dissimilar to the situation in Reitman. Appellees concede that the self-help remedy of repossession “existed in some form in the common law from a very early time.” Unlike Reitman then, the State of Pennsylvania has not by the enactment of the MVSFA permitted a practice which was formerly prohibited. It is true, as appellees suggest, that “the protections surrounding the use of [this self-help] remedy have continuously ebbed and flowed.” But any encouragement or fosterage of self-help repossession resulting, if at all, from statutory modification of safeguards surrounding this private remedy is indirect and highly conjectural and is simply far less significant than the state involvement in Reitman. We think that Reitman and Moose Lodge, supra, read together, suggest that absent direct state action, private repossessions are not infused with the quality of “state action” unless we can conclude that the involvement of the State of Pennsylvania (through its enactment of the MVSFA) has “significantly” encouraged or fostered self-help repossessions. Reitman, supra, 387 U.S. at 380, 87 S.Ct. 1627; Moose Lodge, supra, 407 U.S. at 173, 92 S.Ct. 1598. See Burton, supra, 365 U.S. at 772, 81 S.Ct. 856. We cannot so conclude.

Actually, far from encouraging private repossessions, the MVSFA was enacted in 1947, among other reasons, to curb the abuses associated with private repossessions. The statute displays a noticeable concern for protecting a broad range of consumer interests, including, but not limited to, private repossessions. The MVSFA then not only makes it more difficult to repossess, but also, by protecting various other interests of the buyer, indirectly minimizes the circumstances which give rise to repossessions. We think the Second Circuit’s characterization of an installment sales financing act of another state is equally appropriate to the MVSFA:

“The state enactment was ameliorato-ry not regressive; it did not ‘move in’ on the . . . buyers, but rather on the installment sellers. •X- -X- -X- -X- -X- -X-
“The partnership, if any, is with the purchaser and not the [sellers]. See Adickes v. S.‘ H. Kress & Co., 398 U.S. 146, 90 S.Ct. 1598 (1969)”

Shirley v. State National Bank, No. 73-1783, 493 F.2d 739, at 743 (2nd Cir., filed Feb. 14, 1974).

At least an aspect of appellees’ argument, distilled to its essence, is that when a state attempts to comprehensively regulate an area of private conduct, its failure to prohibit is equivalent to “state action.” Such a rule, however, would virtually obliterate the distinction between state and private action. As the Ninth Circuit noted in Adams v. Southern California First National Bank, 492 F.2d 324, 330-331 (9th Cir. 1973):

“Statutes and laws regulate many forms of purely private activity, such as contractual relations and gifts, and subjecting all behavior that conforms ■to state law to the Fourteenth Amendment would emasculate the state action concept. * •* * *

Lastly, we reject two other contentions of appellees by noting our agreement with the Ninth, Eighth, Fifth and Second Circuits (1) that private repossessions are not infused with “state action” merely because the state enacted sections 9-503 and 9-504 of the UCC, James v. Pinnix, No. 73-1866, 495 F.2d 206 (5th Cir., filed June 10, 1974); Nowlin v. Professional Auto Sales, Inc., No. 73-1348 and Mayhugh v. Bill Allen Chevrolet Co., No. 73-1450, 496 F.2d 16 (8th Cir., filed April 25, 1974); Shirley v. State National Bank, supra; Adams v. Southern California First National Bank, supra; and (2) that private repossessions are not infused with “state action” merely because a state issues a certificate of ownership to the secured party enabling it to transfer the automobile to a third party purchaser at a sale following repossession, Nichols v. Tower Grove Bank, No. 73-1621, 497 F. 2d 404 (8th Cir. filed May 13, 1974); Shirley v. State National Bank, supra; Adams v. Southern California First National Bank, supra.

DELEGATION OF TRADITIONAL STATE FUNCTION

In Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 488, 15 L.Ed.2d 373 (1966), the Supreme Court stated:

“Conduct that is formally ‘private’ may become so intwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action.
[W]hen private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.”

Although we find no similarity between Evans (and the cases cited therein) and the present case, appellees nevertheless suggest and the district court agreed that the State of Pennsylvania has delegated to private individuals a traditional state function, i. e., the power to decide that one’s rights are superi- or to another’s and to carry out that decision by seizing another’s property. We disagree.

Probably the chief obstacle to concluding that self-help repossession involves a traditional state function is the fact, recognized by the district court and the appellees, that in one form or another the common law very early recognized repossession as a private remedy. As the Ninth Circuit has noted, “[biased on this history, it does not appear likely that the Fourteenth Amendment, when written, was intended to eliminate self-help in light of the prevailing use of peaceful repossession.” We do not believe, moreover, that this obstacle can be surmounted by concluding as the district court did that this self-help remedy was not a “historically sound principle of the common law” and that it “ought never have been deemed applicable to the American state of society.”

Nor do we believe that the district court was correct in reading Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), as suggesting that “state action” encompasses any abdication by the state of “the power to decide that your rights are greater that another’s.” Although Fuentes clearly involved state action, the plurality opinion nonetheless spoke of a state’s abdication of effective control over “state power.” However, contrary to what the district court suggested, the “state power” to which Fuentes referred was the use of state power in the form of state officers to accomplish the seizures for the creditor. The plurality opinion recognized that at common law a creditor could “invoke state power” through the action of debt or detinue or alternatively a “creditor could . proceed without the use of state power, through self-help, by ‘distraining’ the property before a judgment.” The dissent in Fuentes also read the majority opinion as clearly distinguishing between state action and purely private action such as repossession:

“It would appear that creditors could withstand the attack under today’s opinion simply by making clear in the controlling credit instruments that they may retake possession without a hearing, or, for that matter, without resort to judicial process at all.” 407 U.S. at 102, 92 S.Ct. at 2005.

Thus, we find no support for the contention that the State of Pennsylvania has delegated a traditional state function.

We therefore conclude that appellees have failed to show the requisite “state action” necessary to support a claim under 42 U.S.C. § 1983. Accord, James v. Pinnix, No. 73-1866, 495 F.2d 206 (5th Cir., filed June 10, 1974); Nichols v. Tower Grove Bank, No. 73-1621, 497 F.2d 404 (8th Cir., filed May 13, 1974); Nowlin v. Professional Auto Sales, Inc., No. 73-1348 and Mayhugh v. Bill Allen Chevrolet Co., No. 73-1450, 496 F.2d 16 (8th Cir., filed April 25, 1974); Shirley v. State National Bank, No. 73-1783, 493 F.2d 739 (2nd Cir., filed Feb. 14, 1974); Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973).

The order of the district court of November 8, 1973 granting the declaratory relief specified in the first sentence of this opinion will be reversed with directions that the district court dismiss appellees’ complaint for failure to state a claim under 42 U.S.C. § 1983 upon which relief can be granted.

      . The sections in question are: 69 Pa.Stat. § 623 (Repossession), § 624 (Reinstating of Contract After Repossession), § 625 (Redemption and Termination of Contract After Repossession), § 626 (Sale of Motor Vehicle After Repossession), and § 627 (Deficiency Judgment).

      . The sections in question are: 12A Pa.Stat. § 9-503 (Secured Party’s Right to Take Possession After Default), and § 9-504 (Secured Party’s Right to Dispose of Collateral After Default; Effect of Disposal).

      . Appellants contend that the district court’s judgment is even broader in scope, but in view of our disposition of this case, we need not reach this question.

      . 28 U.S.C. § 1343(3).

      . The sale contracts received in evidence in this case provided:
      “a. ‘In the event the buyer defaults . . . the seller . . . may take immediate possession of said property without demand . . . and for this purpose the seller may in a lawful manner only, enter upon the premises where said property may be and remove same. . . . ’ (GMAC form.)
      “b. ‘Upon the occurrence of an event of default . . . Buyer and each Co-Buyer, jointly and severally, hereby authorize and empower Seller or Seller’s Assignee . . . to take immediate possession of said car, wherever found, with or without legal process. . . . ’ (The Gibbs contract.)
      “c. ‘If Buyer defaults . . . Seller , . . may enter the premises where the property may be and take immediate possession of the property. . . . ’ (Chrysler’s form.)
      “d. ‘In the event Buyer defaults . . . Seller shall have . . . the right to repossess the Property wherever the same may be found with free right of entry. . . .’ (Ford’s form.)
      “e. ‘In the event of a default, seller shall have the right to . . . enter any premises and without breach of the peace take possession of the vehicle. . . .’ (Girard’s installment sale contract.)”

      . We therefore need not discuss the impact of Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), which was decided subsequent to the district court’s decision. Cf. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S. Ct. 2080, 40 L.Ed.2d 452 (1974).

      . We do not express any opinion as to the reach of the fourteenth amendment with respect to “private” action under 42 U.S.C. § 1985.

      . Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Sniadach v. Family Fin. Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).

      . See Report, Joint State Government Commission, 1945-47 (March 21, 1947) ; 69 Pa. Stat. § 602 (preamble to MVSFA).

      . This appeal therefore does not present us with the situation where a “state statute or custom or usage compels the result.” Jackson v. Metropolitan Edison Co., 483 F.2d 754 (3d Cir. 1973), interpreting Adickes v. Kress, 398 U.S. 144, 90 S.Ct. 1598, 26 L. Ed.2d 142 (1970).

      . Cf. Bond v. Dentzer, No. 73-2377, 494 F. 2d 302, at 309-310 (2d Cir., filed March 13, 1974).

      . Brief of Appellees at 38. For a general discussion of the history of the self-help remedy of repossession, see McCall, The Past and Prologue: A History of the Right to Repossess, 47 S.Cal.L.Rev. 58 (1973).

      . Brief of Appellees at 38.

      . The preamble to the MVSFA, 69 Pa.Stat. § 602 provides, inter alia:
      “It is hereby determined and declared as a matter of legislative finding:
      “(a) That an exhaustive study by the Joint State Government Commission discloses nefarious, unscrupulous and improper practices in the financing of the sale of motor vehicles . . . # * * * *
      “(c) That consumers, because of these legal technicalities and because of their unequal bargaining position, are at the mercy of unscrupulous persons and are being intolerably exploited in the installment purchase of motor vehicles. Such exploitation is evident in the unfair provisions of the installment sale contract, exorbitant charges for credit, extortionate default, extension, collection, repossession and other charges for credit, unconscionable practices respecting execution of contracts, refinancing of contracts, prepayment, refunds, insurance, repossession and redemption.
      “(d) That practices enumerated, and others equally pernicious, have existed to such an extent that regulation of the installment selling of motor vehicles is necessary to the adequate protection of the public interest. . . .
      “Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to promote the welfare of its inhabitants and to protect its citizens from abuses presently existing in the installment sale of motor vehicles, and to establish a system of regulation for the purpose of insuring honest and efficient consumer credit service for installment purchasers of motor vehicles; and to provide the administrative machinery necessary for effective enforcement.” (Emphasis added.)

      . Provisions relating to repossession include, inter alia: 69 Pa.Stat. § 623(A) (self-help repossession permitted only if effected without breach of peace) ; 69 Pa.Stat. § 623(B) (repossession effected only by parties to the transaction or others who meet licensing requirements) ; 69 Pa.Stat. § 623(D) (prompt post-repossession notice) ; 69 Pa.Stat. § 625 (5-day redemption period) ; 69 Pa.Stat. § 624 (reinstatement of contract after repossession).
      Provisions designed to protect other interests of the buyer include, inter alia: 69 Pa. Stat. § 615(B) (prohibition of acceleration clauses in the event a seller deems himself to be insecure) ; 69 Pa.Stat. § 615(E) (prohibition of provision relieving the holder or his assignee from liability for legal remedies which the buyer may have had against the seller) ; 69 Pa.Stat. § 616 (restriction on assignment of installment sales contract except as to persons licensed as sales finance companies) ; 69 Pa.Stat. § 618 (additional costs included in the financing are limited) ; 69 Pa.Stat. § 619 (finance charges may not exceed specific maximum rates) ; 69 Pa.Stat. § 632 (no contract clause can operate to waive any provisions of Act intended for benefit of buyers).

      “15 . . . If we were to accept the debtors’ broad test, it would be very difficult to draw any line between state and private action. Indeed, the creditors point out this difficulty when they argue that if any action in conformance with a state law were state action for purposes of the statute (§ 1983) or the constitutional amendment, then the action of the debtors in withholding payments without affording the creditors due process is state action. See [UCC] § 2-717.”

      . In their brief appellees argue that the sellers have such a greater bargaining position than do buyers, that they can extract from buyers virtually any advantage not prohibited by law. They then suggest:
      “The only control, in such a situation, is not what extent the weaker party, not even aware of the extent of his obligation, can compel the stronger party to protect his rights. The only control, in reality, is what the law guarantees to the weaker party, or prevents the stronger party from compelling him to forfeit. . . .
      By enacting the statute challenged herein, the state has, in a very real sense, determined precisely how repossession will occur. In this context, then, the statutes challenged are not neutral, but actively encourage repossession.”
      Brief of Appellees at 52.

      . At oral argument it was represented that all contracts and agreements in issue and in the record contained default and repossession provisions. We therefore are not faced with reaching a determination of “state action” where the documents on which repossession is predicated are silent as to default and repossession remedies and reliance for repossession is based solely on 12A Pa.Stat. § 9-503. Accordingly, we do not reach or decide “state action” in such a situation.

      . See 75 Pa.Stat. § 101 et seq.

      . The district, court impliedly agreed with this, when it dismissed from the case defendant Titelman, the Director of the Pennsylvania Bureau of Motor Vehicles, under whose direction such certificates are issued. The district court stated -.
      “Neither Titelman nor any other state officer is clothed with the authority to enforce these statutes [69 Pa.Stat. §§ 623-627; 12A Pa.Stat. §§ 9-503, 9-504], The alleged deprivation prescribed by the statutes take place before any action or indeed any knowledge on the part of defendant, Titelman, comes into play.
      ‘i» ^ ^ “5. The primary purpose of the act (assignment of Certificate of Title) was not designed to establish the ownership or proprietorship of an automobile, but rather to register the name and address of a person having the right to possession, and to furnish persons dealing with one in possession of an automobile a means of determining whether such possession was prima facie lawful. Semple v. State Farm Automobile Ins. Co., 215 F.Supp. 645, 647 (E.IXPa.1963).”
      We agree with the district court’s dismissal of Titelman for the reason stated.

      . Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Pennsylvania v. Board of Trusts, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792 (1957); Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), Public Utilities Comm’n v. Pollak, 343 U.S. 451, 72 S. Ct. 813, 96 L.Ed. 1068 (1952); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946).

      . Adams v. Southern California First National Bank, supra, 492 F.2d at 337, citing 2 F. Pollock & F. Maitland, The History of English Law 574 (2d ed. 1899).

      . The district court relied upon the following language in Fuentes:
      “The statutes, moreover, abdicate effective state control over state power. Private parties, serving their own private advantage, may unilaterally invoke state power to replevy goods from another. No state official participates in the decision to seek a writ; no state official reviews the basis for the claim to repossession; and no state official evaluates the need for immediate seizure. There is not even a requirement that the plaintiff provide any information to the court on these matters.
      The State acts largely in the dark.” 407 U.S. at 93, 92 S.Ct. at 2001. (Emphasis added by district court.)

      . The state statutes in Fuentes authorized creditors to initiate replevin procedures by summary writs issued by state courts and executed by state officials.

      . See note 20 supra and accompanying text.

      . 407 U.S. at 79, 92 S.Ct. at 1993. (emphasis added).

      . See James v. Pinnix, No. 73-1866, 495 F. 2d 206 (5th Cir., filed June 10, 1974) (finding self-help repossession to involve no delegation of a state function and distinguishing Hall v. Garson, 430 F.2d 430 (5th Cir. 1970), a decision relied upon by appellees).

      . Decisions finding no “state action” with respect to similar self-help remedies include: Bickel Optical Lab., Inc. v. Marquette Nat’l Bank, 487 F.2d 906 (8th Cir. 1973); Bond v. Dentzer, No. 73-2377, 494 F.2d 302 (2d Cir., filed March 13, 1974); Fletcher v. Rhode Island Hosp. Trust Nat’l Bank, 496 F.2d 927 (1st Cir., 1974).

      . See Bell v. Hood, 327 U.S. 678, 681-683, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Adams v. Southern California First National Bank, supra, 492 F.2d at 338.


source: Caselaw Access Project

author: THORNBERRY, Circuit Judge:

license: Public Domain

text:
    Johnny WILLIAMS, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellant.
    No. 73-3695.
    United States Court of Appeals, Fifth Circuit.'
    Oct. 24, 1974.
    William L. Rogers, Asst. Atty. Gen., Miami, Fla., for respondent-appellant.
    Timothy J. Armstrong, Miami, Fla. (Court-appointed), for petitioner-appel-lee.
    Before TUTTLE, THORNBERRY and SIMPSON, Circuit Judges.
   THORNBERRY, Circuit Judge:

In this habeas case the only issue before us is whether the admission of evidence concerning offenses committed by the petitioner after the alleged crime for which he was then on trial, for the purpose of impeaching his testimony on direct examination that he had committed no such offenses, violated his right to due process under the Fourteenth Amendment. The district judge concluded that it did, but apparently only because he erroneously believed that petitioner had denied the commission of the subsequent offenses in response to a question during cross, rather than direct, examination. Consequently, he granted the petition. We reverse.

At his Florida trial for breaking and entering and grand larceny, Williams took the stand in'his own defense. During direct examination he admitted three prior armed robbery convictions and testified that he had been on parole since 1965. There then occurred this colloquy between him and his counsel:

Q. Have you committed any crimes since you got out on parole ?
A. No, sir; I haven’t.

App. at 222. The prosecutor, after getting Williams to reaffirm this statement during cross-examination (App. at 271), presented testimony that Williams had in fact committed two robberies since his parole.

As the district judge pointed out in his order, “[wjhether petitioner had in fact committed crimes since his parole in 1965 was clearly a matter collateral to and well remote from the ultimate fact issues in the case.” (Unpublished Order at 7.) But it was Williams’s lawyer, not the prosecutor, who initiated the inquiry. The law is clear that in this situation the government is entitled to impeach defendant’s credibility with evidence that would otherwise have been inadmissible, even if the evidence would have been inadmissible because obtained in violation of the defendant’s constitutional rights. See Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed.2d 503 (1954); United States v. Nadaline, 5 Cir. 1973, 471 F.2d 340, 346-347, cert. denied, 411 U.S. 951, 93 S.Ct. 1924, 36 L.Ed.2d 413; United States ex rel. Walker v. Follette, 2 Cir. 1971, 443 F. 2d 167; cf. Loper v. Beto, 405 U.S. 473, 482 n. 11, 92 S.Ct. 1014, 1019 n. 11, 31 L.Ed.2d 374, 381 n. 11 (1972). Thus, normally inadmissible “other crimes” evidence is a fortiori admissible under the rule. United States v. Jansen, 7 Cir. 1973, 475 F.2d 312, 315-316; C. McCormick, Evidence 132 n. 47 (Cleary ed. 1972) (“Illustrative are the cases where an accused takes the stand and makes an overly-broad denial of guilt (T never’). Numerous decisions allow the prosecutor to rebut by evidence of otherwise inadmissible other offenses.”).

In United States v. Nadaline, supra, this Court restated the justification for the rule:

“If a defendant testifies, he puts his credibility in issue. If he lies in the course of his testimony, he lays himself open to attack by means of illegal evidence which otherwise the prosecution could not use against him.”

471 F.2d at 347, quoting from United States ex rel. Walker v. Follette, supra. In the instant case Williams’s counsel attempted to bolster his client’s credibility by having him deny that he had engaged in criminal activity since being paroled. The prosecutor thereby became entitled to introduce evidence rebutting this “specific false statement made from the witness stand.” Loper v. Beto, supra.

We are well aware of the arguments made by respected evidence authorities against allowing impeachment on all extraneous or volunteered assertions made during . direct examination. 3A Wig-more, Evidence § 1007 (Chadbourn rev. 1970); C. McCormick, supra, at 131-33, 416-18. If the question presented here involved merely the wisdom of the practice as a matter of evidence law, we might hesitate. Cases like Walder and Harris, however, appear to foreclose any due process argument. Accordingly, the order granting the writ is reversed and the cause is remanded to the District Court for consideration of petitioner’s other claims.

Reversed and remanded.

      . Although impeachment under this rule is often accomplished by the prosecutor’s introducing records of prior convictions, in the seminal case — Walder v. United States, supra — the government put on a witness to testify about an earlier incident involving the defendant out of which no conviction ever resulted. Moreover, we see no reason why criminal activity committed after tlie alleged crime for which the defendant is on trial should not be admissible for impeachment if the defendant specifically denies the activity during his direct testimony. Cf. United States v. Long, 5 Cir. 1973, 483 F.2d 1390, 1391.


author: WILLIAM E. MILLER, Circuit Judge.

text:
    Patricia BACH, Executrix, etc., Plaintiff-Appellant, v. PENN CENTRAL TRANSPORTATION CO., Defendant-Appellee.
    No. 73-2123.
    United States Court of Appeals, Sixth Circuit.
    Argued April 11, 1974.
    Decided Aug. 23, 1974.

      Richard M.' Markus, Cleveland, Ohio, for plaintiff-appellant; Spangenberg, Shibley, Traci & Lancione, Cleveland, Columbus, Ohio, Donald S. McNamara, Ohio, on brief.
    Harrison W. Smith, Jr., Columbus, Ohio, for defendant-appellee.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and MILLER, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

The appellant, executrix of her husband’s estate, brought this action under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq., alleging that her husband’s death was caused by appellee’s negligence. She contends on appeal that erroneous instructions and rulings on evidence by the district court caused the jury mistakenly to find the decedent contributorily negligent to an excessive degree and also to return a damage award that did not fully reflect the decedent’s future income. She therefore contends that she is entitled to a new trial.

James Bach, the decedent, was a railroad fireman for the appellee. On the day of his death he was a member of a five-man crew that picked up and dropped off cars at private commercial sidings in the Dayton, Ohio area. Approximately three hours after the fatal trip began, Bach left the train to use the restroom at a nearby service station. Rather than stop the train and wait for Bach to return, the conductor told him to wait for the train where he got off and that he would be picked up as the train returned over the same track on the way to the terminal. Witnesses who watched Bach return from the service station testified at trial that they saw him walk to the track, sit down on it and rest his head on his knees and arms. The train’s whistle was sounded repeatedly as the engine approached, but Bach did not move from the track. He was struck by the train and killed.

The jury found that both the railroad and Bach were negligent but concluded that Bach was 80% at fault in causing the accident. As a consequence, the jury’s award of $128,000 was reduced to $25,600.

A significant question on the present appeal is whether Section 4511.19 of the Ohio Revised Code should have been referred to by the court. This statute provides that in any criminal prosecution for driving while under the influence of alcohol, a court may admit evidence of blood alcohol concentration, provided that if the test is by blood analysis, rather than breath or urine, the blood must be withdrawn by a physician or registered nurse within two hours of the alleged violation. The sample must be analyzed by a person licensed by the Ohio Department of Health. The statute also provides that if the blood alcohol concentration is .10% or more, there is a presumption that the defendant was under the influence of alcohol. If the concentration is less than .10%, no presumption exists.

Robert Martin, a toxicologist with the Montgomery County Coroner’s office, testified for the appellee that as part of an autopsy on Bach, blood was withdrawn and analyzed for alcohol. The test showed that decedent’s blood alcohol level was .135%. Appellant objected op the basis that the admissibility requirements of Section 4511.19 were not met: the sample was not withdrawn by a physician or registered nurse; it was withdrawn 17 hours after the accident rather than within the statutory two-hour period; nor was the sample analyzed by a person licensed by the Department of Health. The court overruled the objection and allowed the testimony.

The question of the applicability of Section 4511.19 again arose in the trial when the court without a request from either party gave the following instruction to the jury:

The Legislature of Ohio in a statute unrelated to this case has determined that a concentration of ten hundredths of one percent or more by weight of alcohol in the blood withdrawn within two hours creates a presumption that such person was under the influence of alcohol. This is only a presumption and it is not controlling upon you. It may be rebutted and you may also consider any' other evidence presented to you such as the conduct, conversations or appearance of James Bach at or near the time of his death. The state of Mr. Bach’s sobriety is a question of fact and like all questions of fact is within your exclusive province.

Appellant objected to the instruction, claiming that the presumption should not apply in civil cases.

We have been unable to find any Ohio case that discusses the applicability of Section 4511.19 to civil cases. Some other states have similar statutes which have been uniformly construed by the courts as having no application in civil cases. E. g. Wilson v. Coston, 239 Ark. 515, 390 S.W.2d 445 (1965); Mattingly v. Eisenberg, 79 Ariz. 135, 285 P.2d 174 (1955) ; Matthews v. All American Assurance Company, 226 So.2d 181 (La. App.1969); Carroll v. Houtz, 93 N.J. Super. 215, 225 A.2d 584 (1966). None of these decisions contains an extended analysis of the reasons the statute cannot be utilized in civil trials. Rather the courts have simply followed the literal wording of the statutes and have assumed that specific language would have been employed had the legislatures intended the statutes to apply in civil cases. Absent Ohio case law on the subject, we feel that a federal court sitting in that state should be governed by the wording of the statute without attempting a more expansive interpretation, thus limiting its reach to criminal proceedings.

Was the court’s charge with respect to the Ohio statute reversible error? We think it was. Admittedly, there is some ambiguity in the instruction. The court stated that the statute was “unrelated to this case.” The appellee stresses this language and argues that, whatever the reason the court had for giving the charge, it was clear from its wording that it did not apply in this case. To us, this argument is not persuasive. When the entire instruction is read, the words “unrelated to this case” are hardly sufficient to remove from the minds of the jury that the Ohio legislature had adopted a statute predicated upon its conclusion that a concentration of ten hundredths of one per cent or more of alcohol in the blood of a person gives rise to a presumption that such person is under the influence of alcohol. The error was only compounded when the court proceeded to state that “this is only a presumption and it is not controlling upon you. It may be rebutted and you may also consider any other evidence presented to you . . . .’’If the statutory presumption was inapplicable the jury may well have wondered why the statute was referred to at all. If no statutory presumption existed, why was the jury advised that it was only a presumption which could be rebutted ?

Appellee also points to the portion of the instruction that for the presumption to exist, the blood must have been withdrawn within two hours. Since in this case the blood was not withdrawn until 17 hours after Bach’s death, it is surmised that the jury would not have applied the presumption and that the error was therefore harmless. Whether the jury did in fact construe the charge as stating that a rebuttable presumption existed in the case under Ohio law cannot of course be known to an absolute certainty. It can be said with considerable confidence, however, that the jury at least must have been confused. As it was error to give the charge and as it was at best confusing and misleading, we are not prepared to say that it was harmless. Where an erroneous instruction goes to the heart of an important issue in a case and is capable of leaving the jury with a false conception of the law, the risk of prejudice is unacceptably high.

As we have already said, the appellant argues that even though the presumption in Section 4511.19 does not apply in civil cases, the procedures contained in the statute for analyzing blood must be met before evidence of blood alcohol concentration may be introduced. This argument becomes irrelevant in view of our conclusion that the statute is inapplicable in civil actions. Aside from statute, evidence of blood alcohol concentration in appropriate cases should be received like any other expert testimony. The test procedures need not necessarily conform to those described in the statute, but they must accord with good practice in the field to assure reliable results. See Lawrence v. City of Los Angeles, 53 Cal.App.2d 6, 127 P. 2d 931 (1942). Similarly, expert evidence would be admissible for interpreting the results — for describing the physical and mental condition of a person with a given blood alcohol concentration. Lawrence v. City of Los Angeles, supra.

One more issue regarding Bach’s alleged use of alcoholic beverages remains. Appellee read to the jury, over appellant’s objection, portions of the deposition of the brakeman, one Mays, who stated that Bach had told him that he had gone on a drinking spree while in Cincinnati on Thursday evening. Also, Mays testified that on Saturday afternoon, the day of the accident, Bach had made some vague references to Wild Turkey bourbon — references which fall short of establishing that Bach had had any contact with this brand of liquor. Appellant objected to the testimony regarding Bach’s drinking in Cincinnati on Thursday because it was too remote in time to reflect his condition on Saturday. Similarly, appellant argues that since there was no evidence that Bach had been drinking the Wild Turkey bourbon on the day of the accident, any references to the liquor were irrelevent and prejudicial.

Clearly, testimony tending to show that the decedent had been drinking before a fatal accident is generally relevant to the jury’s consideration of contributory negligence. See Schlichter v. Port Arthur Towing Co., 288 F.2d 801 (5th Cir. 1961), cert. den. 368 U.S. 828, 82 S.Ct. 50, 7 L.Ed.2d 32 (1961); Hadley v. Baltimore & Ohio Rwy. Co., 120 F.2d 993 (3rd Cir. 1941). Yet the relevance of such evidence disappears if the drinking occurred so long before the accident that the alcohol could no longer have any effect on the decedent’s conduct. The probative value of such evidence must be closely scrutinized to avoid the possibility of prejudice to the party charged with negligence. In this case, particularly in view of the testimony of appellee’s expert Martin that any alcohol consumed by the decedent in Cincinnati on Thursday night and early Friday, would not still be in his blood at the time of the accident on Saturday evening, references to the so-called Cincinnati drinking should not have been received or should have been stricken. The same is true with respect to the ambiguous references to Wild Turkey bourbon. This evidence was much too remote and uncertain to be of probative value on the issue of contributory negligence.

As the evidence is convincing that the decedent, whether drunk or sober, was guilty of a high degree of negligence in sitting on a rail, knowing that the train was soon to return, his head down resting on his hands and knees, oblivious of this impending doom despite the train’s continuous whistle and other sounds, can it be said that the court’s errors in charging the Ohio statute and in admitting the challenged evidence of drinking were harmless? We think not. This is true primarily because under the F.E.L.A. the issue was not negligence alone but comparative negligence as between the decedent and the railroad. Although the evidence of decedent’s negligence was strong, so too was the evidence indicating negligence on the part of the railroad. The crew was aware that they were to return and pick the decedent up at the point where he had been left off. Despite such knowledge, there is evidence that inadequate precautions were taken to learn of the decedent’s location or whereabouts. There is a justifiable inference from the record that the decedent was not seen on the track by any member of the crew although he could have been seen had the crew members exercised a greater degree of care. The jury’s responsibility was to fix the degree of negligence of each party. We are unable to say that the erroneous rulings on the drinking issue were simply innocuous and played no part in causing the jury to find the decedent 80% negligent rather than, say, 50% or 60% or some other percentage less than 80% negligent.

Appellant sought at trial to introduce the testimony of an economist on the income that Bach would have made throughout the remainder of his working life. Based on his knowledge of the railroad industry and his estimate of future inflation, the economist was prepared to testify that the decedent’s income would rise abruptly — so much so in fact that when he reached retirement age in the year 2002 decedent would have had an income of $49,413.12. This was in dramatic contrast to Bach’s income of $13,496 in the last full calendar year prior to his death. The court denied admission of this portion of ,the economist’s testimony.

In recent history inflation has been so persistent that it is difficult to conceive that the purchasing power of the dollar might remain constant through the year 2000. On the other hand, the predictive abilities of economists have not advanced so far that they can forecast with any certainty the existence and rate of inflation for the next thirty years. Limited use of economists and other experts may be appropriate in some cases to show that raises in income or promotions would most probably occur. See Senn v. Lackner, 91 Ohio App. 83, 100 N.E.2d 432 (1951), aff’d 157 Ohio St. 206, 105 N.E.2d 49 (1952). Yet testimony on the exact income that the decedent would have received through the year 2002 is so speculative, in our view, that it is inadmissible.

We do not hold, however, that the jury may never consider inflation and future increases in income in determining damages. Ideally, the damage award should compensate appellant for the financial loss she will suffer as a result of the death of her husband. If a jury is not permitted to consider decreases in the purchasing power of money, appellant would be woefully damaged if inflation should continue at its present or at any other substantial rate. Some consideration of probabilities is inevitable in any fair award of damages. The court’s role is to keep such extrapolations within reasonable bounds and insure that they conform to the evidence. Har-Pen Truck Lines, Inc. v. Mills, 378 F.2d 705, 709-710 (5th Cir. 1967).

Even though no expert testimony on inflation and future increases was admitted, it was still error for the district court to charge the jury that it should not consider “future increases or decreases in the purchasing power of money.” Cf. Willmore v. Hertz Corporation, 437 F.2d 357 (6th Cir. 1971). Inflation is a fact of life within the common experience of all jurors. Admittedly, if the jury considers this issue without expert testimony, their calculations will be even more imprecise. There is always a chance that the verdict may be too generous. But if jurors should be prohibited from applying their common knowledge of inflation in reaching a verdict, the party entitled to recovery could be grievously under-compensated. The court can always rectify an exorbitant verdict through its power of remittitur. See 6A Moore’s Federal Practice ff 59.05 [3].

Appellant also objects to the court’s charge that the jury should not consider the “effect of federal income tax because awards in F.E.L.A. cases are not subject to taxation.” It is true that this Court has ruled in a number of cases that refusal on the part of the trial court to give such a charge in cases awarding damages not subject to federal taxation is not reversible error. New York Central R. R. Co. v. Delich, 252 F. 2d 522 (6th Cir. 1958); Payne v. Baltimore & Ohio R. R. Co., 309 F.2d 546 (6th Cir. 1962), cert. den. 374 U.S. 827, 83 S.Ct. 1865, 10 L.Ed.2d 1051; and Hageman v. Signal L. P. Gas, Inc., 486 F.2d 476 (6th Cir. 1973). Other circuits, including the Second, the Fifth and the Eighth Circuits, have subscribed to a similar view. McWeeney v. New York N. H. & H. R. R. Co., 282 F.2d 34, 39-40 (2nd Cir. 1960) (en banc), cert. den. 364 U.S. 870, 81 S.Ct. 115, 5 L.Ed. 2d 93; Cunningham v. Bay Drilling Co., 421 F.2d 1398 (5th Cir. 1970); Prudential Ins. Co. v. Wilkerson, 327 F.2d 997 (5th Cir. 1964); and Blue v. Western Railway, 469 F.2d 487 (5th Cir. 1972), cert. den. 410 U.S. 956, 93 S.Ct. 1422, 35 L.Ed.2d 688. The Tenth Circuit, on the other hand, has indicated that while it would not be reversible error for the trial judge to refuse the charge, such a precautionary instruction would nevertheless not justify a reversal. Nichols v. Marshall, 486 F.2d 791 (10th Cir. 1973.)

Notwithstanding our previous holdings that the refusal to give such a charge is not error, we are persuaded that neither is it reversible error in a personal injury action involving awards exempt from federal taxation for the trial judge in the sound exercise of his discretion to advise the jury affirmatively that its award will not be liable to federal income tax. In the present case, we are of the view that the charge was not improper. See Domeracki v. Humble Oil & Refining Co., 443 F.2d 1245, 1248-1252 (3rd Cir. 1971). The instruction does not require the jury to make complicated calculations nor does it necessitate speculation. It merely gives the jurors an accurate statement of the tax law which should assist them in reaching a realistic verdict.

The judgment of the district court is vacated and the action is remanded to that court for a new trial consistent with this opinion.

      . The Arizona statute was subsequently amended to provide a presumption in civil cases. Thompson v. Bryson, 19 Ariz.App. 134, 505 P.2d 572 (Ariz.1973).


author:
GIBBONS, Circuit Judge. ALDISERT, Circuit Judge
      ROSENN, Circuit Judge

text:
    B. Wilson REDFEARN et al., Individually and on behalf of all others similarly situated v. DELAWARE REPUBLICAN STATE COMMITTEE, and Chairman Herman C. Brown, Defendants, Basil R. Battaglia et al., Intervening Defendants, James H. Baxter, Jr., et al., Intervening Defendants, Charles G. Lamb et al., Individually and as officers of the Kent County Republican Committee, Intervening Defendants, Delaware Republican State Committee and Herman C. Brown, Chairman, Defendants, Basil R. Battaglia et al., Intervening Defendants, Appellants.
    No. 73-1916.
    United States Court of Appeals, Third Circuit.
    Argued March 14, 1974.
    Decided July 29, 1974.

      Aldisert, Circuit Judge, concurred and filed opinion.
    Rosenn, Circuit Judge, dissented and filed opinion.
    William O. LaMotte, III, Thomas Reed Hunt, Jr., Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for appellees.
    Victor F. Battaglia, Gary W. Aber, Biggs & Battaglia, Wilmington, Del., for appellant Basil R. Battaglia.
    A. Richard Barros, Brown, Shiels & Barros, Dover, Del., for appellants Charles G. Lamb, Evelyn H. Greenwood, Allen Hedgecock, Allen Haas, Andrea L. Barros and John David.

      William Swain Lee, Betts & Lee, Georgetown, Del., for appellants Delaware Republican State Committee and Herman C. Brown, Chairman.
    Howard T. Ennis, Jr., Georgetown, Del., for appellants James H. Baxter, Jr., George A. Bramhall, Florence E. Craemer, Harvey H. Lawson and William D. Stevenson, Sr.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

This appeal involves, but unfortunately does not resolve, the conflict between two constitutionally protected interests; the right of freedom of association for the achievement of desired political ends —protected by the first amendment— and the right to have one’s vote in an election for public office given equal weight with that of other voters — protected by the equal protection clause of the fourteenth amendment. The order appealed from, an injunction issued by a single district judge on a motion for summary judgment, adjudged that certain internal rules of the Republican State Committee of Delaware for the allocation of delegate seats in that party’s state convention violated the equal protection clause of the fourteenth amendment and directed the party to adopt new internal rules consistent with that clause. Although the order appealed from was in form an injunction against the operation of the party’s internal rules, those rules implicated state action only by virtue of 15 Del.C. §§ 101, 3301(c) and 3116, and the injunction is against those statutes as applied to the Republican State Committee. We conclude (1) that the injunction issued was improvidently granted, (2) that any proper injunction may by virtue of 28 U.S.C. § 2281 be beyond the power of a single district judge, and (3) that the case should not have gone forward without giving notice to the governor and attorney general of Delaware as required by 28 U.S.C. § 2284(2). The three-judge court issue is so closely interrelated with the merits of the conflicting constitutional claims that a discussion of those claims is required.

I. THE COMPLAINT AND MOTION

The plaintiffs are four registered Republican voters residing in the Second Convention District, suburban New Castle County, who seek, for themselves and other Republican voters similarly situated, relief pursuant to 42 U.S.C. § 1983, and Rule 23(a) and (b) Fed.R.Civ.Proc., for the claimed dilution of their equal voting rights in the Republican party primary election for nominees for statewide office. The prayer for relief is for:

“(1) A declaration that 15 D.el.C. Sections 101 and 3301(c), as construed and applied by the State Republican Party and in accordance with its custom and usage, are unconstitutional.
(2) A temporary and permanent injunction prohibiting defendants from allocating among the four state Republican convention districts delegates to Republican State Conventions and Republican National Conventions in any manner other than one which results in each such delegate representing an equal number of registered Republican voters.
(3) An affirmative Order directing the defendants henceforth to allocate delegates to Republican State Conventions and Republican National Conventions in a manner consistent with the principle of ‘one-man-one vote’, such that'each delegate to such conventions represents an equal number of registered Republican voteJfs; and, further, that all further voting by delegates elected to the 1972 Republican State Convention be weighted in such a way as to reflect the number of registered Republican voters represented by the delegate casting the vote.
(4) Such other and further relief as may be necessary, just, and proper.”

The undisputed facts alleged in the complaint and confirmed by affidavits filed in support of the motion for summary judgment, are set forth fully in the opinion of the district court. *The Republican Party of Delaware under its rules is organized into four convention districts: The City of Wilmington; New Castle County outside Wilmington (where the plaintiffs reside); Kent County; and Sussex County. Each convention district is allotted 30 delegates. An additional 100 delegates are allotted to districts on the basis of one delegate for each 1% of the statewide Republican vote which was cast by voters in that district during the last Presidential election. There is no question that this formula provides disproportionate convention delegate strength for districts other than suburban New Castle County which has the largest Republican registration.

II. THE STATUTORY ARRANGEMENTS FOR PRIMARIES

Delaware, like the other 49 states, has for many years provided for publicly financed primary elections for the nomination of candidates at the general election running with party designations. Prior to 1969 the State by statute defined “Party” as simply “any political party, organization or association.” It defined “Primary election” as

“an assemblage of voters who are members of any political party, as defined in this section, duly convened for the purpose of nominating a candidate or candidates for public office, or for the purpose of selecting delegates or representatives to any political convention thereafter to be held for the purpose of selecting candidates, which at the last general election before the primary election polled at least 10% of the entire vote of this State, or any division or sub-division thereof, for which nominations were made.” 15 Del.C. § 3101 (amended by 57 Del.Laws ch. 181 § 1).

Any such party simply notified the Department of Elections of. its desire to hold a primary election. 15 Del.C. § 3108. Prior to 1969 the method of becoming a party candidate was both simple, and from the point of view of state involvement, neutral.

“Any person desiring to be voted for as a candidate for nomination at any primary election shall notify the County Committee of which he is a member, in writing at least 15 days before such primary election is held.” 15 Del.C. § 3107 (amended by 57 Del. Laws ch. 241 § 5; 57 Del.Laws ch. 567 § 18C).

At one time the political party caused ballots to be printed which included the names of all self-designated candidates. See 15 Del.C. § 3124 (amended by 49 Del.Laws eh. 276 § 3). Since 1953, however, the Department of Elections has prepared the ballots. But because prior to 1969 mere notice of intention to become a candidate sufficed for a candidate to obtain a place on the primary ballot, the internal party organization had no legal though perhaps a significant practical effect on the ultimate party nominee. Thus prior to 1969 there was no legally significant tension between a Delaware political party’s right to determine its own makeup and the one man one vote principle. In 1969, however, the legislature (one may presume at the invitation of thé major parties) intruded into the internal affairs of political parties in a significant way by amending 15 Del.C. § 3107 with respect to the manner of becoming a primary election candidate for statewide office, and by the addition of 15 Del.C. §§ 3116 and 3301(c) imposing new legal obligations on political parties. Section 3301(c) provides that no candidate for the office of Elector of President and Vice President, United States Senator, Representative in Congress or State Officer elected statewide may be deemed nominated for the general election unless he has either received more than 50% of the eligible delegate vote at a party nominating convention or has received a majority of the votes cast in a party primary election. The section provides further:

“No such state nominating convention shall have completed its business relative to such nominations until such time as 1 nominee for each of the aforesaid offices shall have received a vote greater than 50% of the total number of eligible delegate votes at such convention, which polled vote shall be considered final.”

There is no way to get on the general election ballot as a candidate for statewide office other than by a convention nomination or a primary election. By virtue of 15 Del.C. § 3116, a primary election will be held only after one candidate at a party nominating convention receives 50% of the total number of eligible delegate votes, and only if one other candidate in the final polled vote at the convention receives at least 35% of the eligible delegate votes cast. The effect of these provisions is to restrict access to the general election ballot to no more than two candidates from each political party which is large enough to be eligible to hold a primary election. Candidates of minor parties — since 1969 those which polled less than 5% of the entire vote cast in any county at the last general election — can get on the general election ballot by achieving a delegate vote of over 50% at a party convention. The political reality, however, is that governmental power will be achieved through the general election process only by those parties with a following sufficient to be eligible for a primary election. Thus the alternative of nomination by a minor party convention does not significantly increase the voting power of voters in suburban New Castle County at the general election. Nor does that alternative effect the plaintiffs’ voting power with respect to choice of a nominee who will bear the Republican party label.

III. THE EFFECT OF THE DISTRICT COURT ORDER

The district court ruling that the Republican State Convention is in the foregoing statutory context “state action” within the meaning of the fourteenth amendment and 42 U.S.C. § 1983 is obviously correct. See Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed. 2d 821 (1963). But the court’s decision to let stand the challenged statutes but hold invalid the internal party rules raises quite serious first amendment issues. The court’s order that the one man one vote rule be complied with by the nominating convention of the Republican Party of Delaware can be accomplished in only two ways. Either the convention delegates must all be elected at large, or if the party concludes it should continue to have convention districts, the districts must have delegate strength in proportion to party membership in each district. Many believe that party success in achieving statewide or national political power is intimately related to success in achieving such power in the local substructures of government. Thus the ability of any party in Delaware to organize itself on a district rather than an at large basis may be, or is believed to be, significantly related to its pursuit of the power to impose its policies upon government. The freedom to associate for such a pursuit is the heart of the right of association guaranteed by the first amendment. See Bates v. Little Rock, 361 U.S. 516, 523, 80 S. Ct. 412, 4 L.Ed.2d 480 (1959); N. A. A. C. P. v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); cf. N. A. A. C. P. v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). If a given party chooses to organize by districts, but to allocate delegate strength to a district in which it has fewer numbers but a greater opportunity to achieve the practical advancement of the political ideas for the pursuit of which the association was formed, state action which frustrates that choice is highly suspect. Yet the effect of the district court’s ruling is that the Delaware statutes under attack have been construed to prohibit that choice. The statute under which the state intrudes its action into the party continues to operate, but at the expense of the freedom of association of the party.

IV. AVAILABLE ALTERNATIVES

There are obvious alternatives to the sacrifice, of the party’s associational rights. The State could be required to withdraw from its intrusion into the party organization and to return to its former neutral means or devise other neutral means for getting on the ballot for statewide general elections. That would require at least declaratory relief against the continued operation of 15 Del.C. § 3301(c) and § 3116. Since the court never weighed this alternative, but instead simply enforced the State’s decision at the expense of the associational rights of the Republican Party, we reverse and remand for reconsideration.

It should be clearly understood that our reversal and remand does not determine that the alternative of holding the State primary election statutes unconstitutional must be chosen over that of enjoining the party convention delegate allocation. We reverse and remand because the district court, in deciding that the party rules rather than the state statutes must yield, did not weigh the highly relevant associational rights of the Party. We are aware that the 1969 amendment to the Delaware primary election law probably was aimed at preserving the integrity of the state electoral process' by the prevention of practices such as raiding of an opposition party primary to produce a weak opponent. The Supreme Court has held that this is a valid public policy. See Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1972). It can, however, be achieved by means other than those chosen by Delaware. Such alternative means, and their possible effect on the Republican Party’s associational rights and on the operation of the one man one vote rule in the general election, must be weighed before the court can consider an injunction by which it intrudes into the internal affairs of a political party. See Lynch v. Torquato, 343 F.2d 370 (3d Cir. 1965).

V. THE THREE-JUDGE COURT ISSUE

The district court rejected the defendants’ suggestion that the case required the convening of a three-judge court. 362 F.Supp. at 74. Possibly if. no more were truly at issue than the validity of the Republican Party rules and injunctive relief against the party officers, it could be said that although party action was “state action” within the meaning of the fourteenth amendment and 42 U.S.C. § 1983, the party officers were not “state officers” within the meaning of 28 U.S.C. § 2281. See Judge Mansfield’s suggestion of that possibility in Seergy v. Kings County Republican County Committee, 459 F.2d 308, 312 n. 6 (2d Cir. 1972). It seems unlikely, however, that the Supreme Court, construing § 2281 even as narrowly as it does, would permit the frustration of the Congressional policy behind that section by the device of an injunction which effectively dismantles a state statute by nominally enjoining others than state employees. There is also the problem that the Delaware statutes virtually make the party convention a state agency and its rules state administrative rules. As Seergy v. Kings County Republican County Committee, supra, states, there is no question but that statutes dealing with party primaries are of statewide application. 459 F.2d at 312 n. 5. In any event, if on remand the plaintiffs continue to press their demand for injunctive as well as declaratory relief, the district court should request the convening of a three-judge court since we have held that injunctive relief going beyond the party rules and involving the legitimacy of the State’s intrusion must be considered. Since the complaint seeks injunctive relief against “the enforcement, operation or execution of State statutes or state administrative orders” notice of the hearing on remand should be given to the governor and attorney general. If the plaintiffs withdraw their request for injunctive relief the case may proceed before a single judge.

The order appealed from will be reversed and the case remanded to the district court for further proceedings consistent with this opinion.

ALDISERT, Circuit Judge

(concurring).

Although I find the nagging single-judge-statutory court issue most troublesome and not free from doubt, as long as plaintiffs insist on injunctive relief, I am persuaded that a three-judge court is necessary. This case presents a collision between countervailing principles: (1) an allegation of unconstitutional application of an otherwise constitutional statute for which a three-judge court is not necessary, see, Spencer v. Kugler, 454 F.2d 839, 844 (3d Cir. 1972), and (2) a challenge to a statewide rule of a political party so inexorably intertwined with the state’s election process that it must be considered a challenged administrative regulation of statewide operation, thus necessitating a three-judge court if an action is sought to enjoin its use. Board of Regents v. New Left Education Project, 404 U.S. 541, 542, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972).

In Redfearn v. Delaware Republican State Committee, 362 F.Supp. 65, 67 (D.Del.1973), we learn:

The Delaware Republican Party is, as defined by 15 Del.C. § 101, a “political party, organization or association which elects delegates to a National Convention, nominates candidates for electors of President and Vice-President, United States Senator, Representative in Congress, Governor, and other offices, and elects a State Committee and officers of a State Committee by .a State Convention composed of elected members from each Representative District, provided a registered party member is available in each Representative District.” [Footnote omitted.]

In large measure Rule 2 of the Republican Party controls the selection of delegates in an annual state convention composed of 220 delegates. Any person desiring to stand for election as a delegate must comply with the provisions of 15 Del.C. § 3107(a)(2)(ii). Other Delaware statutes control the day of the primary election, state payment for the primary election, and as Judge Latchum summarizes: “In all other respects the voting procedure of the Republican primary election is conducted according to the State’s general election laws.” 362 F.Supp. at 68.

This Republican Party rule governs the composition of the convention which in turn determines whether one’s name may go on the Delaware ballot as a candidate in the primary. All of this relates to statewide operation and, except by name and form, it has all force and efficacy of an official regulation promulgated by a state agency. It is clear that a three-judge court is required where there is a federal constitutional challenge to a state regulation. Thus whether a three-judge court should be convened depends on whether Rule 2 qualifies as an administrative regulation. The rule is statewide. Where activities of a political party directly affect the electoral process, those activities are said to constitute state action. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944). I would hold that the Delaware Republican State Committee, in this context, has the responsibilities of a statewide administrative agency, that its Rule 2 has the efficacy of an administrative regulation, and that a challenge thereto requesting injunctive relief requires a three-judge court.

ROSENN, Circuit Judge

(dissenting).

I believe that a remand for the convening of a three-judge court to consider the constitutionality of the Delaware statutes or of the Republican party rule is neither necessary nor desirable.

I.

A brief review of the background of this litigation may be helpful for an understanding of my specific objections to the remand required by the majority.

Under current Delaware law, no one may get onto a party primary ballot unless he received at least 35% of the vote at the party’s nominating convention. If a person seeking his party’s nomination as a candidate in the general election receives 50% of the delegate vote at the nominating convention, and no other person receives at least 35% of the vote, that person becomes the party’s nominee. 15 D.el.C. §§ 3116, 3301(c)(i). If an ■ additional person receives at least 35% of the vote, at his request a party primary is held. 15 Del.C. § 3116. The person receiving a majority of the at-large votes in the party primary is certified as the party nominee. 15 Del.C. § 3301(c) (i), (ii). The ultimate party nominee will therefore have either been nominated at the convention or will win a primary that was required as a result of the convention vote.

Because of the significance of the nominating convention in the selection of the party’s ultimate nominee, the allocation of delegates to the convention is crucial. As no state statute specifically addresses this question, allocation is determined by party rule. The State Republican Committee allocates 120 of 220 delegates to four convention districts of disparate population on the basis of 30 delegates to each district. The remaining 100 delegates are allocated among the four districts on the basis of one delegate for each 1% of the statewide Republican party vote which was cast by voters in that district during the preceding presidential election. Rule 2, Republican State Committee. The Republican party delegate allocation formula is challenged in this appeal by the voters of the most populous convention district, New Castle County, on the ground that the allocation denies them equal voting strength in the party nominating process, in violation of the Equal Protection Clause of the Fourteenth Amendment.

The district court granted plaintiffs’ motion for summary judgment, holding that the Republican party delegate allocation formula was unconstitutional. Because of the disparity of population in the four convention districts, it held that the allocation of an equal number of delegates to each district (i. e., 30) results in highly disproportionate voting strength. The court enjoined all future use of the allocation formula and further ordered the state committee to devise an allocation formula consistent with the one-man, one-vote principle. The court held that the party function in nominating -candidates for statewide and national office constituted “state action,” and that the one-man, one-vote principle applied to nominating conventions. The court considered and rejected contentions regarding the “political” nature of the controversy, the alleged justifications for the formula, and the propriety of a three-judge court as opposed to a single-judge court. The defendants have appealed.

Neither Judge Gibbons nor Judge Al-disert reach the merits of this controversy. For somewhat different reasons, each would remand the case to a three-judge court, unless the plaintiffs withdraw their request for injunctive relief.

II.

I first consider the approach taken by Judge Gibbons. He would remand the case to the district court with directions to consider the constitutionality of 15 Del.C. § 3116 and § 3301(c). As I read his opinion, the denial of equal voting strength to voters in the Republican primary flows from the combination of (1) the party rule that provides for equal allocation of convention delegates to districts unequal in population, and (2) the state statute that limits candidates in a party primary to those who received at least 35% of the delegate vote at the party’s nominating convention. •

Judge Gibbons suggests that this denial of equal voting strength can be remedied by two alternative means if necessary to avoid a constitutional violation. The first alternative, which was the approach taken by the district court, is to invalidate the party rule, in effect upholding the state statute. The result is a party nominating convention in which delegates are apportioned on a one-man, one-vote basis. The second alternative, proposed by Judge Gibbons although neither presented to nor considered by the district court, is to allow the party rule to stand but to declare unconstitutional the Delaware statute that limits candidates in a party to those receiving at least 35 % of the vote at the nominating convention, § 3116. The effect would be to create a primary open to all Republican party members and to limit the power of the convention to nothing more than an endorsement of a candidate. Because the ultimate party nominee would be selected at an at-large primary election on a one-man, one-vote basis, no denial of equal voting rights would occur.

I disagree for several reasons with Judge Gibbons’ direction to the district court to consider the constitutionality of § 3116 on remand. An appellate court should not suggest the drastic alternative of declaring a state legislative enactment unconstitutional, when none of the litigants request such relief. Although the complaint lists two Delaware statutes, § 101 and § 3301(c), the statute with which the majority is concerned, § 3116, is nowhere mentioned in the complaint. Nor do I believe that a fair reading of the complaint allows the inference that the plaintiffs sought to attack the constitutionality of § 3116. In the course of briefing in the district court, moreover, plaintiffs expressly disclaimed any challenge to the constitutionality of Delaware statutes, directing their attack solely to the party rule. In response to a suggestion by defendants that a three-judge court was required in light of the complaint, plaintiffs stated:

In the present case, plaintiffs challenge the constitutionality of the delegate apportionment formula utilized by the State Republican Committee, under color of state law, in allocating delegates among the four Convention Districts. The immediate source of this unconstitutional result is Rule 2 of the Rules of the Republican State Committee, not any statute of the State of Delaware. Therefore, a three-judge court is not required and would not be proper in the present case.

Plaintiffs’ Reply Brief in Support of their Motion for Summary Judgment, at p. 31; Docket No. • 21. Significantly, neither did the defendants raise the alternative of the uneonstitutionality of § 3116.

Moreover, even were the constitutionality of both Rule 2 and of § 3116 at issue in the district court, I believe that the constitutionality of the rule should be considered before the constitutionality of the statute is reached. This approach is dictated by traditional judicial deference to state legislatures, and judicial reluctance to declare state regulatory programs unconstitutional.

Judge Gibbons would no doubt maintain that departure from the traditional deference to state regulatory programs is warranted in the instant case because of the Republican party’s interest in freedom of association. I am unpersuaded by this argument for three reasons.

First, I believe that the majority’s concern with the party’s first amendment rights should be directed to the preliminary question of whether the party activity is “state action.” See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). Judge Gibbons states, without extended discussion, that the district court’s findings in favor of state action are “obviously correct.” At this point I believe that the quasi-governmental entity’s freedom of association is no longer of central importance.

Second, even assuming we should consider the party’s first amendment interests, I do not believe that invalidating the state statute would significantly avoid interference with the party’s freedom to associate. Invalidating the statute would permit any party member to challenge in a primary the convention’s choice of candidates. In the primary, party voters may not give deference to the convention’s choice. To the extent that this is true, invalidating the statute, or invalidating the rule directly, would result in the same interference with the party’s first amendment interest in the convention process.

Finally, invalidating the statute while upholding the party rule would result in (1) the present convention delegate allocation based on factors other than population or party voting strength, combined with (2) unlimited access to the primary ballot by party members desiring to challenge the candidate endorsed by the convention. Invalidating the rule while upholding the statute would result in (1) a convention delegate allocation based entirely upon population or party voting strength, combined with (2) access to the primary ballot limited to those receiving at least 35% of the vote at the nominating convention. As Judge Gibbons notes, the political parties in Delaware were no doubt influential in obtaining passage of the statute limiting access to the primary ballot. It is by no means clear, therefore, that the Republican party would prefer the first set of conditions to the second set. It is thus difficult to understand Judge Gibbons’ conclusion that invalidating the statute presents less of an intrusion into the party’s first amendment interests than does invalidating the rule.

III.

I now turn to the approach taken by Judge Aldisert. Apparently concluding that the constitutionality of § 3116 need not be considered by the district court on remand, he states that “whether a three-judge court should be convened depends on whether Rule 2 qualifies as an administrative regulation.” He answers this question in the affirmative. As I read his opinion, he reasons that given the context of the Delaware election system, once there is a finding that the rule involves state action, the rule becomes a state administrative order within the meaning of 28 U.S.C. § 2281. Judge Gibbons, although he does not decide the question, appears to agree that even a challenge directed solely to the party rule requires the convening of a three-judge court. As discussed below, I disagree with this conclusion.

The Supreme Court has repeatedly stated that “the three-judge court statute is to be strictly construed.” Considerable significance, therefore, must be attached to the point, apparently conceded by Judge Aldisert, that in this case the literal requirements of § 2281 have not been met. The party rule is not a state statute or order of a state administrative board or commission, and the private defendants are not state officers. •

Moreover, there is no reason in this case to expand the scope óf § 2281 beyond its literal language. The Supreme Court has stated that § 2281 provides

procedural protection against an improvident statewide doom by a federal court of a state’s legislative policy.

Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941) (emphasis supplied). The state has expressed no legislative interest in any particular Republican party delegate apportionment formula, as is evidenced by the complete silence of the Delaware statutes on the question.

I note that even under present judicial construction, the scope of the term “State statute” under § 2281 is narrower than the scope of “state action” under the fourteenth amendment. A three-judge court is required under § 2281 “not merely because a state statute is involved but only when a state statute of general and statewide application is sought to be enjoined.” Moody v. Flowers, 387 U.S. 97, 101, 87 S.Ct. 1544, 1548, 18 L.Ed.2d 643 (1967). Thus, state statutes of local application, although clearly state action, do not come within § 2281. See Moody v. Flowers, supra. I do not believe, therefore, that when a nominally private group promulgates a rule which is held to be “state action” for fourteenth amendment purposes, that rule is then automatically a state statute or administrative order for purposes of § 2281 and the nominally private defendants are then automatically state officers within the meaning of the statute.

In any event, even if Rule 2 of the Republican party could somehow be deemed a state administrative order under § 2281, I do not believe that the rule meets the judicially imposed requirement that it be of statewide application. The rule, although it applies to Republicans spread throughout the state, does not apply to any other political party. This situation is similar to that in Board of Regents, supra. The Supreme Court there held that § 2281 did not apply to a challenge to a rule promulgated by the State Board of Regents which did not apply to all the public institutions of higher education in the state, even though the institutions to which the rule did apply were spread throughout the state.

For these reasons, I perceive no justification for an expansion of the circumstances under which a three-judge court is required. This is particularly true in light of the many competing demands on judicial resources arid the heavy burden imposed on the Supreme Court by direct appeals from three-judge courts.

In view of the disposition of the case by my colleagues, I do not discuss the issue of the constitutionality of Rule 2.

      . Redfearn v. Delaware Republican State Committee, 362 F.Supp. 65 (D.Del,1973).

      . The statutes on primary elections are collected in Note, Primary Elections: The Real Party in Interest, 27 Rutgers L.Rev. 298 n. 1 (1974).

      . Party conventions are required to continue roll call votes until at least one nerson receives greater than 50% of the vote. 15 Del.C. § 3301(c).

      . The district court stated :
      The Court does find and declare . . . that the State Convention delegate allocation formula set forth in Rule 2 of the Republican State Committee violates plaintiffs’ rights under the equal protection clause of the Fourteenth Amendment.
      Redfearn v. Delaware Republican State Committee, 362 F.Supp. 65, 74 (D.Del.1973).

      . The court rejected the three-judge court contention on the ground that plaintiffs’ challenge was to the party rule and not to a state statute or administrative order.

      . 15 Del.C. § 101 defines a party as follows:
      “Party” or “political party” means any political party, organization or association which elects delegates to a national convention, nominates candidates for electors of president and vice-president, United States senator, representative in congress, governor and other offices, and elects a state committee and officers of a state committee by a state convention composed of elected members from each representative district, provided a registered party member is available in each representative district.

      . 15 Del.C. § 3301(c) provides:
      No candidate for the office of elector of president and vice president, United States senator, representative in congress, governor or other state officer to be voted for on a statewide basis, shall be deemed nominated and no certificate of nomination for such candidate shall be made or filed, nor shall the name of any such candidate be placed on the ballot in any general election in this State, unless the candidate:
      (i) shall have been so nominated by receiving more than 50% of the eligible delegate vote on the final polled vote of a State nominating convention of the political party advancing his candidacy, at a convention held not later than the 4th Saturday in July in the year of such general election and who was not required to run in a primary election ; or
      (ii) shall have received a majority of the votes cast by registered voters of the political party advancing his candidacy at a statewide primary election held pursuant to the provisions of Chapter 31 of this title.
      No such state nominating convention shall have completed its business relative to such nominations until such time as 1 nominee for each of the aforesaid offices shall have received a vote greater than 50% of the total number of eligible delegate votes at such convention, which polled vote shall be considered final.

      . 15 Del.C. § 3116 provides:
      The presiding officer and secretary of the convention of any political party shall certify to the several departments of elections, the state election commissioner, and the secretary of state, the names of all persons receiving at least 35% of the eligible votes cast on the final polled vote in the convention for the nomination of United States senator, representative in congress, governor and other state offices. The final polled vote shall be when 1 of the nominees for each of the above offices shall have received a vote greater than 50% of the total number of eligible delegate votes at such convention. Such certification shall be made within 5 days of such final vote. When the names of 2 such persons are so certified with respect to any office, a primary election shall be held on the Saturday immediately following the 1st Monday in September in all districts in which votes may be cast at the general election for that office and in the same manner as elsewhere provided in this title for primary elections, provided that the person receiving the lesser number of votes cast at the convention with respect to any office, shall, within 5 days of such final vote give notice pursuant to section 3107(a)(1) and (b) of this title.

      . 28 U.S.C. § 2281 provides :
      An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.

      . I agree with Judge Aldisert’s implicit conclusion that the challenge to Rule 2 is not a challenge to any Delaware state statutes “as applied.” Rather, the attack on the rule is an attack on the “unconstitutionality of the result obtained by the use of a statute which is not attacked as unconstitutional,” and therefore does not require a three-judge court. Ex Parte Bransford, 310 U.S. 354, 361, 60 S.Ct. 947, 951, 84 L.Ed. 1249 (1940). See also United States v. Christian Echoes Ministry, 404 U.S. 561, 565, 92 S.Ct. 663, 30 L.Ed.2d 716 (1972); Griffin v. School Board, 377 U.S. 218, 228, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964).

      . Board of Regents v. New Left Education Project, 404 U.S. 541, 545, 92 S.Ct. 652, 655, 30 L.Ed.2d 697 (1972). See also, Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).

      . See Smith v. State Executive Committee, 288 F.Supp. 371, 374 (N.D.Ga.1968) (attack on party rule does not require three-judge court as no attack was made on underlying statute) (dictum); Maxey v. Washington State Democratic Committee, 319 F.Supp. 673 (W.D.Wash.1970) (single judge holds party rule on delegate allocation unconstitutional, without discussion of three-judge courts); Bond v. Dentzer, 325 F.Supp. 1343, 1348-1350 (N.D.N.Y.1971) (attack on state wage assignment statute does not require three-judge court, despite naming of state officer who “plays no role in implementation of [challenged statute]” which is self-implementing; private party defendants are not state officers within meaning of § 2281); Klim v. Jones, 315 F.Supp. 109, 112-113 (N.D.Cal.1970) (attack on state innkeeper’s lien statute does not require three-judge court “because no . . . state or local officer has been named as a defendant or is sought to be restrained”); Adams v. Egley, 338 F.Supp. 614, 616-617 (S.D.Cal.1972) (attack on state commercial code provisions authorizing repossession after default of debtor does not require three-judge court “since no action of either a state or local officer is sought to be restrained”). See also Dahl v. Republican State Committee, 319 F. Supp. 682, 683 (W.D.Wash.1970). But see Harper v. Vance, 342 F.Supp. 136, 139 (N.D. Ala.1972) (challenge to party rule requiring filing fees requires three-judge court as rule constitutes order of state - “administrative board”).