author: ALMOND, Senior Judge. MARKEY, Chief Judge

text:
    Application of Anthony SABATINO and Daniel Orlando.
    Patent Appeal No. 8879.
    United States Court of Customs and Patent Appeals.
    July 12, 1973.
    Rehearing Denied Aug. 30, 1973.
    Markey, C. J., filed dissenting opinion.
    Theodore W. Anderson, Chicago, Ill., attorney of record, for appellants; Harry J. Roper, Pendleton, Neuman, Williams & Anderson, Chicago, Ill., of counsel.
    S. Wm. Cochran, Washington, D.C., for the Commissioner of Patents; Fred W. Sherling, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, and RICH, ALMOND, BALDWIN and LANE, Judges.
   ALMOND, Senior Judge.

This is an appeal from the decision of the Patent Office Board of Appeals, adhered to on reconsideration, affirming the rejection under 35 U.S.C. § 112 of claim 1 of appellants’ application entitled “Storage Battery Construction and Method of Making Same.” We affirm that decision.

The application is a continuation of serial No. 132,660, filed August 21, 1961. The earlier application was the subject matter involved in this court’s decision in In re Sabatino, 387 F.2d 981, 55 CCPA 811 (1968).

Claims 1 and 2 were copied from a patent to Frischkorn et al. (Frisehkorn) and an interference instituted therewith. The interference was dissolved on motion which led to this appeal of the ex parte rejection of claim 1 as not supported by appellants’ application. The rejection of claim 2 on like grounds was reversed.

Appellants’ invention relates to a process for welding electrical connectors in an aperture of a partition wall that separates adjacent cells in a storage battery*. The invention is illustrated in Figure 3 of the application, reproduced below:

The process for welding truncated conical nose 38 of projection (shank) 30 of one connector to the conical depression 40 of projection (shank) 32 of the other connector is described in In re Sabatino, supra.

The sole issue determinative of this appeal is whether appellants’ disclosure, as exemplified in the above drawing, supports the recitation of claim 1, which, in pertinent part reads:

providing opposed connector elements having tapered shanks and non-mating end portions wherein the diameter of said shanks permits limited entry of the shanks into said hole * * *. [emphasis ours]

In affirming the examiner, the board gave its reasoning as follows:

Claim 1 states “permits limited entry.” It is true that the shanks enter the dividing wall, thus the word “entry” is sufficient to describe this. By the use of the word “limited” something else is contemplated, otherwise the claim would be redundant in this respect, and the presumption is that every word is meaningful.

There is no suggestion in appellants’ disclosure that the entry of the shanks is anyway related to the diameter thereof. For this reason appellants cannot make claim 1.

OPINION

In their brief appellants contend that the claim is “clear on its face” and interpret the disputed claim recitation in light of their disclosure as follows:

The extent of entry into the aperture is in fact “limited” by mutual contact of the ends of the tapered shanks in order to form a high resistance contact (R. 8, 9). The diameter of the shanks, therefore, “permits limited entry” of the shanks into the hole.

We cannot agree with appellants’ conclusion. The board was correct in holding that claim 1 requires a specific relationship between the “diameter” of the shanks and the hole while appellants’ application is devoid of any disclosure of such a relationship. To accept appellants’ interpretation would amount to reading the phrase “wherein the diameter of the said shanks” out of the claim. Claim limitations defining the subject matter of the invention are never disregarded. See Smith v. Stone, 420 F.2d 1065, 57 COPA 884 (1970).

We have found it unnecessary to consider the Frisehkorn patent. Irrespective of Frischkorn’s disclosure, it is apparent that appellants’ application contains no support for the broadest reasonable interpretation of the disputed claim recitation.

For the foregoing reasons the decision of the board is affirmed.

Affirmed

MARKEY, Chief Judge

(dissenting).

With all respect, I must dissent. I agree that the precise issue is whether appellants’ disclosure supports the limitation, “wherein the diameter of said shanks permits limited entry into said hole.”

The only possible answer to the question “Does appellants’ shank diameter permit limited entry?” is “Yes.” Of course it also permits total entry, but that is not the question. If the claim read “total entry” and appellants’ diameter permitted only limited entry, the result would be different. But that is not the case.

Contrary to the rule requiring the broadest reasonable interpretation, the board and the principal opinion would read the word “only” before “limited.” I find no warrant in the record for so doing. It would be as reasonable to insert “at least.”

The board erred in finding no disclosure in appellants’ application of a relationship between the shank diameter and the entry thereof. Appellants’ drawing shows a relationship. Though it permits total entry, the diameter is shown as permitting an entry limited by contact with the opposed shank entering the hole from the opposite direction.

Whether Frischkorn’s drawing shows a shank tapered to limit entry, though vigorously argued, is not controlling where both appellants and Frisehkorn show a shank diameter “permitting” limited entry and the claim reads unambiguously on the disclosures of both.

To apply a claim limitation in haec verba is not to disregard it. So applied, the claim is supported by appellants’ disclosure. I would reverse.

      . Serial No. 611,435, filed January 24, 1967.

      . Patent No. 8,275,793, filed June 9, 1965, issued September 27, 1966.


source: Caselaw Access Project

author: LANE, Judge. BALDWIN, Judge

license: Public Domain

text:
    PUREX CORPORATION, LTD., Appellant, v. DAWN PRODUCTS COMPANY, Appellee.
    Patent Appeal No. 9050.
    United States Court of Customs and Patent Appeals.
    July 12, 1973.
    Baldwin, J., dissented and filed opinion.

      James M. Naylor, Frank A. Neal, San Francisco, Cal. (Naylor & Neal, San Francisco, Cal.), attorneys of record for appellant.
    Ralph F. Crandell, Denver, Colo. (Burton & Crandell, Denver, Colo.), attorneys of record, for appellee.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge.
   LANE, Judge.

This is an appeal from the unpublished unanimous decision of the Trademark Trial and Appeal Board dismissing an opposition to registration of the mark TEND for “plastic cleaning and polishing materials, namely, combination cleaning, glazing, reconditioning, antistatic, and polishing compositions, buffing compounds, buffer pads, and polishing cloths for plastic materials” in Class 4, Abrasives and polishing materials, Application Serial No. 313,274 filed November 29, 1968. Opposer relies upon its Registration No. 430,422, June 10, 1947, of TREND for a “Powered cleanser for general household use and also certain commercial uses, such as in laundries and in the cleaning of diary equipment” in Class 4, and its Registration No. 626,011, April 24, 1956, of TREND for “Detergents in dry and liquid form” in Class 52, Detergents and soaps. Op-poser is the prior user. Neither party took testimony. We affirm.

The board held that since opposer filed no evidence other than copies of its registrations, the question of likelihood of confusion turns solely upon a consideration of the marks and goods as shown in the respective application and registrations. The board said:

The burden of proof is upon the op-poser to prove its case by a preponderance of the evidence. Considering the differences in the marks and the goods, we are not persuaded that op-poser has established it would be damaged by the registration of the challenged mark.

Appellant contends that there is no significant difference between the goods and that the marks are similar in sound and similar in significance. Appellee urges that there is no evidence of record to show any similarity between the goods, and that the marks are different in both sound and in appearance. Appellant then argues that the board “failed to consider TEND and TREND synonymous, i. e. confusingly similar in significance or meaning as well as confusingly similar in sound.” However, we note that the board mentioned in its opinion “opposer’s claim of similarity as between the words ‘TEND’ and ‘TREND’ * *

The issue before us is whether the total record supports the board’s conclusion that opposer has not established that it would be damaged by the registration of the challenged mark. We find that the board’s conclusion is supported by the record. The question of likelihood of confusion turns solely upon consideration of the marks and the goods as set out above. There is no evidence that the opposer sells polishing cloths for plastic materials or that the powdered cleanser and detergents specified in op-poser’s two registrations are suitable or intended for cleaning or polishing plastic materials. The marks are specifically different, and the goods recited are also specifically different. We find no likelihood of confusion stemming from the marks TEND and TREND on the respective goods.

Finding no error in the decision of the board, we affirm.

Affirmed.

BALDWIN, Judge

(dissenting).

The marks TEND and TREND are substantially identical in appearance, sound and meaning. There is absolutely no reason to assume that appellants powdered cleanser and detergents are anything other than eminently suited for cleaning plastics. Thus in my view the goods upon which the marks are used are also substantially identical. Considering the marks as applied to the goods it is my opinion that there is a likelihood of confusion, and for that reason I would reverse the decision of the board.


author: HILL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Sammie Everett GARDNER, Defendant-Appellant.
    No. 72-1676.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted May 23,1973.
    Decided June 21, 1973.
    Herbert H. Galchinsky, Denver, Colo., for defendant-appellant.

      James M. Dunn, Asst. U. S. Atty. (C. Nelson Day, U. S. Atty., Salt Lake City, Utah, on the brief), for plaintiff-appellee.
    Before PHILLIPS, HILL and HOLLOWAY, Circuit Judges.
   HILL, Circuit Judge.

Gardner appeals from a jury conviction and sentence of taking, by force and violence or by intimidation, the money of a federally insured bank, in violation of 18 U.S.C. § 2113(a). On appeal he asserts numerous errors from the time of his arrest through the imposition of sentence.

On the afternoon of May 8, 1972, a teller at the Twentieth South branch of the First Security Bank of Utah was approached by a man with a magazine folded over a small pistol and a paper sack. The teller, complying with the man’s order, filled the sack with $1,271 from her cash drawer. The man then left the bank, and the teller immediately informed the bank manager of the robbery. The manager went to the door through which the robber had exited to determine the route of escape. The manager saw a man with a sack under is arm hurriedly walking away, and immediately pursued him; he called for the assistance of several bystanders who also joined in the chase. The pursuers observed the suspected robber enter a car to make his escape.

One of the bystanders who had joined in the chase, Milliner, was an employee of a business establishment in the area of the bank and recognized a customer, Pappadakis, approaching in his car. Upon being informed of the robbery and that the robber was making his escape in a car, Pappadakis, accompanied by Milliner, continued the chase in his car. At one point, when the getaway car stopped at an intersection, Pappadakis got out of his car and attempted to grab the robber who was alone in the car. His attempt proved unsuccessful as the robber immediately proceeded through the red light and dragged Pappadakis with him. Another motorist at the intersection, Jarvis, saw Pappadakis attired in a service station uniform being dragged down the street and assumed the driver of the car had left a service station without paying for gas. Jarvis joined in the chase and followed the escape car into a deadend alley. Jarvis attempted to make a citizen’s arrest, approached the driver of the car, whom he identified in court as Gardner, was confronted by a pistol and warned to get back from the car. Milliner and Pappadakis arrived soon thereafter and were likewise confronted with a pistol and ■warned to stay back. Both Milliner and Pappadakis identified Gardner as the man who had pointed the pistol and issued the warning.

The man then entered a nearby office building. The police were notified; however, prior to their arrival the man emerged from his hiding place and was pursued by Pappadakis to another hiding place in an area of old houses. When the police and FBI agents arrived at the scene they searched the area for the robbery suspect. Upon observing footprints going into the basement of one of the houses, a police officer ordered the robber to come out; Gardner emerged and was placed under arrest. He was searched and an envelope of money was found. Part of this money was bills with serial numbers which had been previously recorded by the bank that were used as “bait” money. When he was later searched prior to being booked into the county jail, an additional $120 was found in Gardner’s wallet. This money, with the money from the envelope, made a total of $1,271 found in Gardner’s possession.

Gardner contends his arrest without a warrant was invalid because the people who had pursued him and had informed the police of his whereabouts had no direct knowledge or information regarding the robbery of the bank. He asserts the arrest was based only on multiple hearsay information from persons having no direct knowledge of the robbery, and therefore sufficient probable cause for his arrest without a warrant was not established. The criterion for probable cause to arrest without a warrant depends on whether at the moment of the arrest'the facts and circumstances within the officer’s knowledge and of which he has reasonable trustworthy information are such as would warrant a prudent man to believe the person to be arrested has committed an offense.

The evidence establishes that Gardner was pursued by various individuals virtually from the time he left the bank until the time he was arrested. With the exception of Jarvis, each person in the chain of pursuit knew the man being chased was the suspected robber of the bank. On the basis of the information available to police officers responding to the call relating the location of the suspected robber, there was ample and sufficiently reliable information upon which to arrest Gardner without a warrant.

Gardner also maintains the search of his wallet at the time he was incarcerated in the county jail was an unconstitutional search and seizure. He contends the search at this point was no longer incident to his arrest. He also contends the unreasonableness of the search is shown by the wallet being beyond his immediate control and by the search not being necessitated by any exigent circumstances justifying it to discover possible hidden weapons. Contrary to Gardner’s assertions, searches of an individual and his wallet or other personal property at this stage of the arrest have been upheld both as incident to a lawful arrest when conducted shortly afterward at the jail or place of detention and for the purpose of discovering concealed weapons. Likewise, such search has been upheld as being part of the necessary inventory of an accused’s personal property both to preserve the accused’s belongings while he is incarcerated and to safeguard the police from a later groundless claim that some item has not been returned to him. The search of Gardner’s wallet was reasonable and was not violative of his Fourth Amendment protections.

Gardner additionally challenges the trial court’s empaneling of the jury on June 26, 1972, then excusing the members of the panel for fourteen days until the actual trial of the case was begun. He complains this procedure permitted the jurors to acquire unauthorized outside information about the case and thereby denied him a fair and impartial jury. We would first note the allegation that the jurors obtained other information is unsupported conjecture. The court, at the request of defense counsel, inquired of the jury members prior to the actual commencement of trial if any of them had acquired any information about the ease. In the absence of any affirmative response from any member of the panel, Gardner’s defense counsel expressed his satisfaction with the jury. Aside from being in direct contradiction of his allegation of denial of a fair and impartial jury, the acceptance of this jury following the court’s questioning can be considered a waiver of subsequent objection on that basis. We would further note the separation of the jury for this or any other length of time is a matter within the discretion of the trial judge and not per se error. In addition, we find nothing in the record from which prejudice may be assumed or even reasonably argued.

Gardner next challenges the failure of the trial court to permit him to examine the presentence report. He claims this denial precluded him from refuting, distinguishing or explaining any erroneous or misleading information prior to the imposition of sentence. The disclosure of the contents of a presentence report is permissive under the provisions of F.R.Crim.P. Rule 32(c), and the denial of a defendant’s request to see the report is not a violation of due process. Permitting the inspection of the presentence report is discretionary with the trial court. We would additionally note the presentence report was made orally by the probation officer at the sentencing hearing at which both Gardner and his counsel were present. Ample opportunity was afforded Gardner to either explain portions of the report or correct erroneous information, which the record indicates was done in one instance. We find no error in this regard.

Gardner lastly asserts error in the failure of the trial court to permit him allocution or to speak in mitigation of his sentence in accordance with the provisions of F.R.Crim.P. Rule 32(a). The record of that hearing shows the trial court, after receiving the verbal presentence report from the probation officer, imposed a sentence of twenty years’ imprisonment. There is no indication in the record that the trial court afforded Gardner the opportunity to speak prior to sentence. The transcript of the sentencing hearing does reflect that Gardner’s counsel was given an opportunity by the trial judge to speak on behalf of his client immediately prior to sentencing. In the language and mandate of Rule 32(a)l, the trial judge did not “ . . . address the defendant personally and ask him if he wishe[d] to make a statement in his own behalf and to present any information in mitigation of punishment.” The failure to follow the formal requirements of the rule is not of itself an error that can be raised by collateral attack. However, the failure to follow the terms of the rule is cognizable on direct appeal, and such failure by the trial court is error. The government confesses this error in the sentencing procedure, and in its brief concedes the case should be remanded for resentencing.

The conviction is therefore affirmed, but the sentence imposed by the trial court is vacated and the case is remanded for sentencing consistent with F.R. Crim.P. Rule 32(a).

      . United States v. Richerson, 461 F.2d 935 (10th Cir. 1972) cert. denied, 409 U.S. 883, 93 S.Ct. 172, 34 L.Ed.2d 139; United States v. Troutman, 458 F.2d 217 (10th Cir. 1972).

      . Wright v. Edwards, 470 F.2d 980 (5th Cir. 1972) ; United States v. Annoreno, 460 F.2d 1303 (7th Cir. 1972), cert. denied, 409 U.S. 852, 93 S.Ct. 64, 34 L.Ed. 2d 95; Bailey v. United States, 131 U.S.App.D.C. 314, 404 F.2d 1291 (1968) ; Malone v. Crouse, 380 F.2d 741 (10th Cir. 1967), cert. denied, 390 U.S. 968, 88 S.Ct. 1082, 19 L.Ed.2d 1174.

      . “ . . .we take notice that knives and other small weapons can be secreted in wallets. . . . ” United States v. Simpson, 453 F.2d 1028, 1031 (10th Cir. 1972), cert. denied, 408 U.S. 925, 92 S.Ct. 2504, 33 L.Ed.2d 337.

      . United States v. Kelehar, 470 F.2d 176 (5th Cir. 1972) ; United States v. Lipscomb, 435 F.2d 795 (5th Cir. 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331, reh. denied, 402 U.S. 966, 91 S.Ct. 1635, 29 L.Ed.2d 131; Cotton v. United States, 371 U.S. 385 (9th Cir. 1967).

      . See United States v. DePugh, 452 F.2d 915 (10th Cir. 1971), cert. denied, 407 U.S. 920, 92 S.Ct. 2452, 32 L.Ed.2d 805.

      . United States v. Stidham, 459 F.2d 297 (10th Cir. 1972), cert. denied, 409 U.S. 868, 93 S.Ct. 168, 34 L.Ed.2d 118.

      . Cook v. Willingham, 400 F.2d 885 (10th Cir. 1968).

      . Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962).

      . United States v. Becker, 437 F.2d 1086 (5th Cir. 1971).


author: LEWIS R. MORGAN, Circuit Judge:

text:
    LOUISIANA GAS SERVICE COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
    No. 71-2879.
    United States Court of Appeals, Fifth Circuit.
    June 28, 1973.
    Charles King Mallory, Washington, D. C., Andrew P. Carter, New Orleans, La., for Louisiana Gas Service Co.
    Leon M. Payne, Houston, Tex., for United Gas, Inc.
    William R. Choate, Perry O. Barber, Jr., Jeron Stevens, Houston, Tex., for United Gas Pipeline Co.
    Thomas M. Knebal, Washington, D. C., for Willmut Gas and Oil Co.
    Howard E. Wahrenbroek, Washington, D. C., John M. Kuykendall, Jr., Jackson, Miss., for Miss. Valley Gas Co., Mobile Gas Service Corp., and Clarke-Mobile Counties Gas Dist.
    Jon C. Lotis, Counsel, Gordon Gooch, Gen. Counsel, J. Richard Tiano, First Asst. Sol., Leo E. Forquer, Sol., George W. McHenry, Atty., Federal Power Commission, Washington, D. C., for Federal Power Commission.
    Before JOHN R. BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

This is another in the long series of Federal Power Commission opinions and orders concerning certain of United Gas Pipe Line Company’s facilities in southern Louisiana which have been challenged in this court. Basically, this case involves the question of who has the right to regulate a pipeline during the period in which the FPC is exercising its primary jurisdiction to determine whether or not the facilities are subject to federal regulation. Other aspects of this jurisdictional dispute are treated in separate opinions issued this date by this court.

Factual Background

On October 1, 1970, United Gas Pipe Line Company filed with the FPC an application for a certificate of public convenience and necessity with regard to certain sales in Louisiana and Texas, pursuant to section 7(c) of the Natural Gas Act, 15 U.S.C. § 717f(c). The facilities involved in this case had formerly been treated as wholly intrastate and had been regulated by the Louisiana Public Service Commission. The alleged existence of federal jurisdiction was based on the doctrine of transportation of commingled intrastate and interstate volumes of gas which had its genesis in the Florida Parishes opinion.

To keep straight exactly what this petitioner is challenging here it is necessary to set forth the chronology of various proceedings before the FPC in some detail. In FPC Docket No. C.P. 71-89, United filed the existing rate schedules under which sales in these facilities had been regulated by the Louisiana Public Service Commission. Prior to FPC determination of its jurisdiction over these disputed facilities and while the certificate proceeding was pending, United filed a general schedule of proposed changes in its FPC Gas Tariff pursuant to section 4(d) of the Natural Gas Act. This filing included increased rates for the disputed facilities. On December 31, 1970, the FPC accepted for filing these proposed rate increases in Docket No. R.P. 71-41, but suspended their effectiveness for five months under section 4(e) of the Act. With regard to the disputed facilities and sales which had not yet been certificated, the Commission expressly ordered that the increased rates in this southern zone were to be contingent on the finding of jurisdiction and issuance of a certificate in Docket No. CP 71-89. If there was no finding of jurisdiction or no certification, United would be required to make refunds of all excess charges with interest.

The suspension of these proposed tariffs under section 4(e) meant that the new charges could not become effective until June 1, 1971. During this period, the FPC scheduled hearings on this general rate increase. On March 10, 1971, United filed a revision of its earlier tariff filing and requested that this amended tariff become effective on June 1, 1971, the date on which the original increased rates would have become effective. The FPC acquiesced and waived the 60-day requirement of its regulations, section 154.22, in an order dated May 18, 1971.

The next day, Louisiana Gas filed a motion to strike all proposed rate increases and to dismiss the proceedings relating to the rates and conditions of service for non-certificated sales to Louisiana Gas. As noted, these noncertificated sales were currently being considered in certification proceedings in Docket No. CP 71-89. In the alternative, Louisiana Gas requested suspension of the rates pending certification.

By order dated July 8, 1971, the FPC denied these motions of Louisiana Gas. The Commission again made clear that it was allowing the rates to go into effect only because it noted probable jurisdiction under Florida Parishes, and provided for refunds if a certificate was not ultimately issued. On August 27, the Commission denied rehearing, stating that rate jurisdiction was not contingent upon certificate authority and that the only jurisdictional requirement was that the sale to Louisiana Gas be a sale in interstate commerce for resale for public consumption.

Thus, the question before us on review is whether or not the FPC was proper to order imposition of contingent rates before it had conclusively determined its jurisdiction over the facilities and before a certificate had been issued.

Right to Regulate

The FPC takes the position that there has been federal jurisdiction over these facilities ever since the jurisdictional facts, i. e., the injection of interstate volumes of natural gas into these formerly intrastate facilities, were first present. It argues that the probable jurisdictional prerequisites allow it to regulate a pipeline, subject to refund, while determining the actual existence of federal jurisdiction and the necessity for a certificate.

In J. M. Huber Corp. v. F.P.C., 3 Cir. 1956, 236 F.2d 550, 555, the court found that jurisdiction did not depend on an agency or court determination thereof:

The jurisdiction of the Commission over a natural gas company conferred by Section 4(b) of the Act does not depend on whether that company fulfills its obligation under 7(c) to obtain a certificate. There is nothing in 7(c) or any other part of the Act giving the slightest credence to that strange conception of the Commission’s authority. . . As it now develops, jurisdiction by the Commission over independent producers was present in the Act throughout the period but it was not until the Supreme Court defined it in 1954 that the Commission considered itself justified in asserting that authority. There is no indication that its attitude prior to the Phillips decision was arbitrary or capricious and beyond doubt thereafter it functioned in accordance with the Supreme Court mandate.

Thus, because the FPC may have been hesitant in asserting jurisdiction until its theory had received Court approval is no reason to say that the jurisdiction has not always been present.

Here, the Commission had a colorable claim to jurisdiction under the Florida Parishes decision. It had requested that United take steps in light of Florida Parishes to get a determination of the need for a certificate. While Florida Parishes was not as clear an authority for the existence of federal jurisdiction as was the Supreme Court opinion which controlled Huber, the general principle should remain the same. When the FPC has a colorable claim to jurisdiction, it should be able to take regulatory control, subject to a viable refund procedure, pending final determination of jurisdiction.

Under section 16 of the Natural Gas Act, the Commission has “power to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of this Act.” This section would also support the Commission’s assertion of jurisdiction once it has noted probable jurisdiction. As the Commission pointed out with regard to these facilities in question, United cannot charge the increased rates without a filing before the Commission. Thus, the Commission notes the difficulties for United if jurisdiction is ultimately withheld unless some action is taken to protect United during the period that this jurisdictional determination is being made. Plaquemines Oil and Gas Co., 43 FPC 242 (1970), affirmed in part and remanded in part, Plaquemines Oil and Gas Co. v. F.P.C., 1971, 146 U.S.App.D.C. 287, 450 F.2d 1334, illustrates the difficulty in trying to reconstruct a rate schedule which should have applied to periods during which the FPC should have been exercising control but was not. In that case the court held that the Commission possessed the equitable power to go back and reconstruct sales and determine whether refunds were in order. The court, however, pointed out the great difficulty in doing this:

. . . we recognize that instances may arise where attempts by the Commission to determine what it would have done in previous years, had filings been made in compliance with the Act, may be unavailing because of lack of absolutely essential data or may be so burdensome on the Commission (and hence the public purse) or the parties as to be prohibitive. Id. at 1388, n. 13.

Here, as the Commission points out in its brief, these rate filings by United supply the missing data and if the Commission is allowed to go on and pass on these rate filings subject to refunds, all parties are adequately protected. Furthermore, it seems well within the Commission’s discretion to decide that any excess should be paid into United, subject to refund with interest, rather than held by the purchasers to be paid with interest to United if jurisdiction was found. The Commission has far more control over a natural gas company like United to ensure that the refund money would be actually available if ever due.

We also find that there is ample judicial authority for the position that the Commission may exert control prior to the issuance of a certificate of public convenience and necessity with regard to the sales involved. In addition to the Huber case above, see Sun Oil Co. v. F. P.C., 5 Cir. 1960, 281 F.2d 275, in which we stated:

The power of the Commission over [a company] and its sales and deliveries of gas is not dependent upon it having made application for and the Commission having issued a Certificate of Public Convenience and Necessity. Id. at 278.

See also Magnolia Petroleum Co. v. F.P. C., 5 Cir. 1959, 236 F.2d 785; Natural Gas Pipeline Co. v. Harrington, 5 Cir. 1957, 246 F.2d 915.

We find that all of the other contentions of petitioner, Louisiana Gas Service Corp., are without merit and, therefore, the exertion of control by the FPC in this case prior to a final adjudication by the FPC, but subject to refund, is

Affirmed.

      . See Louisiana Power & Light Co. v. F.P.C., 5 Cir., 483 F.2d 623; State of Louisiana, et al v. F.P.C., No. 72-2233, 5 Cir., 483 F.2d 972.

      . United Gas Pipe Line Company, 30 FPC 560 (1963), affirmed sub nom. Louisiana Public Service Commission v. F.P.C., 5 Cir., 359 F.2d 525, cert. den. 385 Ü.S. 833, 87 S.Ct. 73, 17 L.Ed.2d 68 (1966).

      . This version generally involved schedules pertaining to curtailment rather than adjusted rates.

      . In State of Louisiana, et al v. F.P.C., No. 72-2233, 5 Cir., 483 F.2d 972, we addressed the propriety of a similar rate increase allowed by the Commission in light of a supplemental rate increase filed by United. This petitioner, Louisiana Gas Service Corp., is only challenging the first general rate increase in this particular case.

      . We do today affirm the Commission’s jurisdiction over these facilities under the Florida Parishes doctrine. See Louisiana Power & Light Co. v. F.P.C., supra n. 1.

      . With regard to possible ways to return the parties to status quo if the FPC ultimately finds the jurisdictional facts do not exist, there is little trouble where the issues involve only the rates to be charged the customers. Money can always be refunded with interest. The situation is far different, however, where the possibility of curtailment of services is involved. Under those circumstances the axiom that “you can’t refund gas” is clearly applicable. Therefore, we do not pass on the issue of whether or not the Commission may order curtailment before it has determined for itself the existence of jurisdictional facts.

      . Were the FPC not allowed to take interim control of rate regulation, this problem would be present in every case where a formerly intrastate pipeline has allegedly become interstate in nature.


author: WEICK, Circuit Judge. EDWARDS, Circuit Judge

text:
    GIBSON & PERIN CO. et al., Plaintiffs-Appellees and Cross-Appellants, v. CITY OF CINCINNATI et al., Defendants-Appellants and Cross-Appellees.
    Nos. 72-1607, 72-1608.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 31, 1973.
    Decided June 26, 1973.
    Edwards, Circuit Judge, concurred specially and filed opinion.

      S. Arthur Spiegel, Cincinnati, Ohio, for Gibson & Perin Co.; Cohen, Todd, Kite & Spiegel, Cincinnati, Ohio, on brief; Hawley Todd, Marshall C. Hunt, Jr., Cincinnati, Ohio, of counsel.
    A. David Nichols, Cincinnati, Ohio, William Chadeayne, Columbus, Ohio, for City of Cincinnati, and others; Isabel Guy, Acting City Sol., Thomas F. Rehme, Asst. City Sol., Cincinnati, Ohio, on brief.
    Bricker, Evatt, Barton & Eckler, Columbus, Ohio, for Associated Dry Goods Corp. and Cincinnati Redevelopment-Corp.; Russell Leach, H. Franklin Crawford, III, John F. Birath, Jr., Columbus, Ohio, of counsel.
    Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.
   WEICK, Circuit Judge.

The controversy in this case arose out of the Cincinnati Business District Core Project Urban Renewal Plan, hereinafter referred to as “Plan”, which Plan was adopted by ordinance passed by City Council in 1962 after two public hearings. The Plan was amended in 1964 and 1965. Under this Plan old, dilapidated business buildings in blighted areas of Cincinnati have been razed and replaced with fine, new, privately-owned buildings, with the help of private industry. We agree with the District Judge that urban renewal in Cincinnati has been an outstanding success and a real boon to the City.

Of the many new buildings that have been constructed under the Plan, only the one in issue here has been questioned, and that is Pogue’s seven-story, shoppers’ parking garage, which opened on June 1, 1967. Although it was characterized by the District Court as a single-purpose parking garage designed primarily to serve Pogue’s department store, actually it serves not only shoppers at Pogue’s and other department stores, but also it serves customers for other business places in that downtown area. It serves also people who are attending other evening functions in the area of the garage. The fact is that the garage is open to the general public twenty-four hours a day, seven days a week. It accommodates at least 1,200 cars, which is about four times more parking space than was previously available in the area, and really consists of two garages. It also has space for retail businesses on the ground floor, part of which already has been rented to Closson’s.

The plaintiffs are retail merchants and the owner of a French restaurant, all with places of business owned or leased on the south side of Fourth Street (but outside the Urban Renewal Area), and located on the opposite side of Fourth Street from Pogue’s parking garage. They do not like the design and location of the parking garage.

Plaintiffs claim, and the District Court found, that plaintiffs—

“ . . . were led to expect that the north side of Fourth Street would be developed for retail and office space, with a shopper’s garage on Elm Street between Fourth and Fifth Streets;”

that instead, the City—

“ . . . not only approved the construction of the garage on Fourth Street between Elm and Race, but approved a single-purpose shopper’s garage wth scissors ramps designed solely for Pogue’s whose store is east of Block D at the corner of Fourth and Race Streets. . . .”;

that the change in the Plan was made without a public hearing; that a portion of Fourth Street was vacated without notice to the plaintiffs; that the ramps on Fourth Street impede pedestrian traffic on the northerly side of Fourth Street and adversely affect plaintiffs’ businesses located on the opposite side of Fourth Street. Actually, the scissors ramps protect pedestrians who walk on the public sidewalk underneath the ramps. Without the ramps the automobiles entering and exiting the garage on Fourth Street would be at the same level as the public sidewalk, and it would be very dangerous for pedestrians to walk thereon.

In their third amended complaint filed in 1969, the plaintiffs, in addition to the foregoing, have charged the defendants with violation of their civil rights, conspiracy, fraud, violation of federal and state antitrust laws, and with everything else that they could think of including the charge of depriving them of due process of law and the equal protection of the laws. They asked for injunctive relief and damages.

Defendants in the case, named in the Third Amended Complaint, were the City of Cincinnati; William C. Wichman, who was City Manager, and is now deceased; Cincinnati Redevelopment Corporation [CRC], a private Ohio corporation for profit, which purchased the land from the City after the City had acquired it by condemnation or by purchase, and had razed the old buildings. (CRC constructed the new parking garage thereon and sold and conveyed it for $4,000,000 to Adcor Realty Co., a subsidiary of Associated Dry Goods, Inc., which is also the parent corporation of H & S Pogue Co., Inc., a department store.) Continuing the list of defendants : Associated Dry Goods Co.; H & S Pogue Co., Inc.; Adcor Realty Co.; Morgan Guaranty Trust Co., which acquired the title to the property from Ad-cor Realty Co. under a lease-back arrangement for the operation of the Pogue department store; the Regional Director of HUD; and the Secretary of the Department of Housing and Urban Development, the latter two of whom were voluntarily dismissed from the case.

The District Court heard the case without a jury and decided against the plaintiffs on the issues of conspiracy, fraud and antitrust violations, but found in favor of the plaintiffs on the issue that the construction of the garage on Fourth Street, rather than on Elm Street, violated the Urban Renewal Plan, and that plaintiffs, although located outside the Urban Renewal area, had standing to file the action. The Court entered a mandatory—

“ . . . injunction against the City and Pogue’s Division of Associated Dry Goods Corporation, jointly and severally, requiring them to alter the Pogue completed garage by installing two elevators at Fourth and Elm Street (in addition to the existing three elevators only 80 feet from the northwest corner of Fourth and Race Street) and to improve the fire tower on Fourth Street so that it and the elevators can serve the area in which the plaintiffs are located and thus counteract the blighting effect of the garage as constructed.” (App.Yol. I, p. 55)

We affirm the District Court in its decision that there was no conspiracy, fraud or antitrust violation. We reverse the mandatory injunction issued against the City and Pogue’s.

I

STANDING

Pogue’s new garage is located in Urban Renewal Block D, which block consists of an entire city block, bounded on the north by Fifth Street, on the south by Fourth Street, on the east by Race Street, and on the west by Elm Street.

Only the plaintiffs, whose places of business are located outside the Urban Renewal area, have filed suit. They claim that the location and design of the garage have resulted in economic injury to them.

The threshold question therefore is whether persons located outside the Urban Renewal area have standing to maintain this action. We are of the opinion that plaintiffs do not have standing.

Plaintiffs contended in the District Court that they do have standing on the following grounds:

1) As federal taxpayers;
2) Under the Administrative Procedure Act;
3) As persons having a.personal stake in the outcome of the case; and
4) As private attorneys general.

The District Court ruled that plaintiffs’ contentions were untenable as federal taxpayers and under the Administrative Procedure Act. We agree. The Court, however, held that they had standing as persons having a personal stake in the outcome of the case, and as private attorneys general. We disagree.

No eases have been cited to us by the Court or by the parties, nor have we found any cases, where persons located outside the Urban Renewal area have been permitted to question the design or location of buildings approved by the agency (the City, in the present ease) as being in conformity with the Plan, said agency having been authorized by Congress to act. There is no general statutory right of appeal to the United States District Courts from decisions of federal, local or public agencies, and private persons, engaged in urban renewal projects under 42 U.S.C. § 1450 et seq. The Secretary is authorized to sue and to be used. 42 U.S.C. § 1456(c)(1). Suits, of course, could be filed for violation of specific regulations adopted by the Secretary of HUD under the provisions of § 1455(c)(1) by persons having standing.

Nor do we find authority for the mandatory order issued by the District Court ordering the City and the purchaser of property from the redeveloper, to make changes in completed buildings which the purchaser had acquired in good faith and for which it had paid a large sum of money.

The District Court recognized that it was charting a new course in virgin territory, — a course which we believe would have an adverse effect on future Urban Renewal projects, if persons located outside the project may question the decisions relating to the project made by the duly authorized local public agencies.

Not only was the project approved by HUD, but the Plan and the design and location of the garage were specifically approved by the City.

Standing to sue as “private attorneys general” rests on an explicit provision in the regulatory statute conferring standing, which is absent here. Data Processing Service v. Camp, 397 U.S. 150, 153 n. 1, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

Review of decisions of federal agencies may be obtained under the Administrative Procedure Act. Contrary to plaintiffs’ claims, the City is not a federal agency as defined in the Act. 5 U.S.C. § 701(b)(1). Furthermore, the Director and the Secretary of the federal agency were voluntarily dismissed from the case by the plaintiffs.

The Act does not confer standing to seek judicial review upon anyone who suffers economic injury as a result of agency action, regardless of whether that person’s private rights have been invaded. Woodland Market Realty Co. v. City of Cleveland, 426 F.2d 955 (6th Cir. 1970); Harrison-Halsted Community Group, Inc. v. Housing & Home Finance Agency, 310 F.2d 99 (7th Cir. 1962).

Plaintiffs have no standing as federal taxpayers to question the design and location of the garage. They have not established a logical link between their status and the type of legislation which they are attempting to attack. They have not challenged a congressional enactment under the taxing and spending clause of Art. I, Sec. 8 of the Constitution, which is a prerequisite for standing under Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). In addition, the Court said:

“. . . [T]he taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. When both nexuses are established, the litigant will have shown a taxpayer’s stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court’s jurisdiction.” (Id. at 102-103, 88 S.Ct. at 1954).

No such nexuses have been established. Indeed, plaintiffs have not established any violation of a specific statute or constitutional provision.

The District Court relied on Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), wherein standing was held to exist in petitioner, a data processing company, to review a decision of the Comptroller of the Currency permitting National Banks, such as the respondent bank, to make data processing services available to other banks and bank customers. Review was provided for by the Administrative Procedure Act.

In addition to plaintiffs’ claim to economic injury because of competition from the banks, the interest which they sought to protect was arguably within the zone of interests to be protected and regulated by statute.

To the same effect is Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L. Ed.2d 192 (1970), wherein review was sought under the Administrative Procedure Act. The Court, following Data Processing Service, supra, held that farmers who were eligible for payments under the Food and Agricultural Act of 1965, had standing to challenge the validity of an amended regulation issued by the Secretary of Agriculture, which amended regulation, they alleged, violated the Act.

The Court further held that the farmers had a personal stake and interest; that they were clearly within the zone of interests protected by the Act; and that the statutory scheme evinces a congressional intent that the Secretary’s decision may be judicially reviewed.

Both Data Processing and Barlow, (unlike the present case) involve reviews sought under the Administrative Procedure Act. Both cases involved persons within the zone of interests protected, which is not true in the present case as plaintiffs’ businesses were located outside the Urban Renewal area. While in Data Processing the Court found no prohibition against review, in Barlow the Court found congressional intent favoring review.

In our case no review was provided by statute of acts of agencies and private developers of Urban Renewal projects. We think it was because. review would frustrate implementation of Urban Renewal plans and would discourage cities and redevelopers who might not want to become embroiled in protracted litigation, particularly after they had expended their money to participate in the project.

In our case, under no stretch of the imagination can it be claimed that plaintiffs, who were located outside the Urban Renewal area, were within the zone of interests protected by the statute. Since they had no money invested in the structures located in the Urban Renewal area, they had no personal interest or stake in the project.

The decision in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), is against the plaintiffs, as the Court held there that even under the Administrative Procedure Act the plaintiff and its members, who allegedly had a special interest in the conservation and the sound maintenance of the natural parks, game refuges, and forests of the county, did not have standing to enjoin federal officials from approving an extensive skiing development in the Mineral King Valley in the Sequoia National Forest. Petitioners in that case had not alleged that the challenged development would affect the Club or its members in their activities, or that they even used Mineral King, but alleged that the project would adversely change the area’s aesthetics and ecology.

In our case, the District Court in its opinion stated:

“It seems clear to the Court that the City could not have condemned the property in the south half of Block D for the purpose of erecting a garage such as the one the Developer built to the specifications of Pogue’s.
“In effect this would be condemning property for private purposes, and it needs no citation of authority to say that is not permitted.” (App. I, p. 59).

This proposition was set to rest in the leading case on Urban Renewal, which ease involved the District of Columbia. In Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954), Mr. Justice Douglas, who wrote the opinion for the Court, stated:

“Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. See Luxton v. North River Bridge Co., 153 U.S. 525, 529-530 [, 14 S.Ct. 891, 892] 38 L.Ed.2d 808; United States v. Gettysburg Electric R. Co., 160 U.S. 668, 679 [, 16 S.Ct. 427, 429] 40 L.Ed. 576. Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established. See Luxton v. North River Bridge Co., supra; cf. Highland v. Russell Car Co., 279 U.S. 253 [, 49 S.Ct. 314] 73 L.Ed. 688. The public end may be as well or better served through an agency of private enterprise than through a department of government — or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects. What we have said also disposes of any contention concerning the fact that certain property owners in the area may be permitted to repurchase their properties for redevelopment in harmony with the overall plan. That, too, is a legitimate means which Congress and its agencies may adopt, if they choose. (Id. at 33-34, 75 S.Ct. at 103).”

In making it clear that it is not the function of the Courts to sit in review of legislative determinations, the Court stated:

“. . . But we have said enough to indicate that it is the need of the area as a whole which Congress and its agencies are evaluating. If owner after owner were permitted to resist these redevelopment programs on the ground that his particular property was not being used against the public interest, integrated plans for redevelopment would suffer greatly. The argument pressed on us is, indeed, a plea to substitute the landowner’s standard of the public need for the standard prescribed by Congress. But as we have already stated, community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis — lot by lot, building by building.
It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch. See Shoemaker v. United States, 147 U.S. 282, 298 [, 13 S.Ct. 361, 390] 37 L.Ed. 170; United States ex rel. Tennessee Valley Authority v. Welch, supra, [327 U.S. 546] at page 554 [, 66 S.Ct. 715, at 718, 90 L.Ed. 843]; United States v. Carmack, 329 U.S. 230, 247 [, 67 S.Ct. 252, 260] 91 L.Ed. 209.
The District Court indicated grave doubts concerning the Agency’s right to take full title to land as distinguished from the objeetional buildings located on it. 117 F.Supp. 705, 715-719. We do not share those doubts. If the Agency considers it necessary in carrying out the redevelopment project to take full title to the real property involved, it may do so. It is not for the courts to determine whether it is necessary for successful consummation of the project that unsafe, unsightly, or insanitary buildings alone be taken or whether title to the land be included, any more than it is the function of the courts to sort and choose among the various parcels selected for condemnation.
The rights of these property owners are satisfied when they receive that just compensation which the Fifth Amendment exacts as the price of the taking.” (Id. at 35-36, 75 S.Ct. at 104).

The title to the land in Block D, on part of which the garage was constructed, was acquired by the City, either by purchase or condemnation. No such defense was interposed in any condemnation suit, nor is there any proof that any purchases made by the City were other than voluntary. The title of the purchaser may not be collaterally attacked here.

The case closest in point to the present one is our decision in Woodland Market Realty Co. v. City of Cleveland, 426 F.2d 955 (6th Cir. 1970). In that case the plaintiff, which held a leasehold interest in certain commercial property located in Cleveland, sued the City for damages to its leasehold interest, the value of which was alleged to have been destroyed by the activity of the City in establishing its Urban Renewal project. Plaintiff claimed that such activity violated its rights under the Fifth and Fourteenth Amendments to the Constitution. Plaintiff alleged that its leasehold was originally included in the Urban Renewal project, but that the City later excluded it and acquired instead adjacent property belonging to plaintiff’s tenants, thereby depriving plaintiff of its tenants.

In affirming the judgment of the District Court dismissing the complaint, we stated that there had been no taking of plaintiff’s property within the meaning of the Fifth and Fourteenth Amendments requiring the payment of just compensation; that the losses sustained by plaintiff did not result from any intrusion or encroachment on plaintiff’s property. “Its leasehold estate has remained intact.” Id. at 958. Plaintiff’s losses resulted from the transformation of the neighborhood from a residential neighborhood to vacant land. We followed Berman v. Parker, supra, in holding that the drawing of boundary lines for a public project is a matter of legislative discretion, and it is not the function of the courts to review such discretion. We stated:

“When reduced to its essence, the issue presented upon this appeal is whether a property owner having property adjacent to an urban renewal project may maintain an action for compensation under the Fifth and Fourteenth Amendments of the Federal Constitution for depreciation in the value of his property by reason of the establishment of the project. This Court is of the opinion that he cannot.” (Id. 426 F.2d at 959).

In Campbell v. United States, 266 U.S. 368, 45 S.Ct. 115, 69 L.Ed. 328 (1924), the Court held that a property owner, a portion of whose land was condemned for a public purpose, was not entitled to compensation for damages to the residue occasioned by the acquisition and/pse of adjoining lands of others for theXsame project.

We followed Berman v. Parker, swpra, in Nashville 1-40 Steering Comm. v. Ellington, 387 F.2d 179 (6th Cir. 1967), holding that the routing of public highways was a prerogative of the executive department of the state, and not the judiciary.

Further, in order to have standing, plaintiffs must establish that they have a legal interest to maintain the suit, that the right invaded—

“. . . is a legal right, — one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.” (Tennessee Power Co. v. TVA, 306 U.S. 118, 137, 59 S.Ct. 366, 369, 83 L.Ed. 543 (1939)).

See also- United States ex rel. TVA v. Welch, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843 (1946); Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938). Plaintiffs have established no such rights. Whatever damages plaintiffs sustained as a result of the Urban Renewal project are damnum absque injuria.

Under Ohio law plaintiffs, as owners or lessees of land abutting on the south side of Fourth Street, have no property right in the continuation or maintenance of the flow of traffic past their property, and the diversion of traffic as a result of public improvement is not an impairment of a property right for which damages may be awarded. State ex rel. Merritt v. Linzell, 163 Ohio St. 97, 126 N.E.2d 53 (1955). As a matter of fact, the width of Fourth Street was not changed in the improvement.

Plaintiffs complain about not having received notice from the City of the vacation of a portion of Fourth Street. Actually, the portion vacated was not the traveled portion of the street, but included the north sidewalk, the location of which was changed by an exchange of easements and was relocated on Pogue’s property and underneath the ramps. Plaintiffs were not abutting owners of land on the north side of Fourth Street and were not entitled to notice under Ohio law. Ohio Rev.Code, § 723.06.

In essence, all that plaintiffs are really complaining about is the fact that they did not receive the benefits from the Urban Renewal project which they expected.

II

LIABILITY OF THE CITY OF CINCINNATI

The City is a political subdivision of the State of Ohio. It is not a “person” within the meaning of the Civil Rights Act and Congress did not intend that municipal corporations should be amenable to the Act. 28 U.S.C. § 1343; 42 U.S.C. § 1983; Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Johnson v. City of Cincinnati, 450 F.2d 796, 798 (6th Cir. ,1971).

There is an additional reason why the City cannot be held liable in this action. In its activities under the Urban Renewal project it was engaged in the performance of a governmental, and not a proprietary, function. It was exercising the police power of the state. It cannot be held liable for the performance of such acts. Broughton v. Cleveland, 167 Ohio St. 29, 146 N.E.2d 301 (1957); Wooster v. Arbenz, 116 Ohio St. 281, 156 N.E. 210 (1927).

III

LIABILITY OF POGUE INTERESTS

Inasmuch as the City is not liable for economic injury allegedly sustained by plaintiffs on account of the Urban Renewal Plan, it is difficult to see how Pogue’s, whose sin was to purchase a completed garage and to pay $4,000,000 for it, could possibly be held liable.

Plaintiffs complain that the Plan was changed to locate the garage on Fourth Street instead of on Elm Street. Actually, it is located on both streets. The City contends that the Plan was never changed; that brochures, reports, newspaper articles, etc., on which plaintiffs and the District Court relied as indicating a location on Elm Street, were illustrative only and were not a part of the Plan. City Council did approve the design and location of the garage.

But even if the City did change the location and design, it had the right to do so, as was held in Woodland Market Realty, supra, where the city changed its original plan to include plaintiffs in the urban renewal area and then changed its plan to exclude plaintiffs.

In our opinion, a public hearing was not required even if the City did change the design or location of a building in Block D.

Plaintiffs were tardy in filing their suit nearly one year after the City had passed an ordinance approving the bid of CRC as being “in accordance with the Urban Renewal Plan,” and after the property was conveyed by the City to the redeveloper.

IV

ANTI-TRUST VIOLATIONS

The District Court found that there was no evidence of any conspiracy to restrain trade. We agree.

Although most of the plaintiffs and Pogue’s have been engaged in business in Cincinnati for many years, no claim-of antitrust violation was ever made against Pogue’s until after it acquired its new garage.

Participation in an Urban Renewal project does not violate the antitrust laws.

Plaintiffs allege that the relevant market was a “dramatic elbow” at the corner of Fourth and Elm Streets. This claim is ridiculous. There was no proof of any relevant market. There was no proof of any real competition between the plaintiffs and Pogue’s. The antitrust claims are frivolous.

The judgment of the District Court is reversed and the cause is remanded with instructions to dismiss the complaint.

EDWARDS, Circuit Judge

(concurring specially).

This is a complex and difficult case. In my judgment there is merit to the plaintiffs’ claims of economic injury as found by the District Judge. Unfortunately for plaintiffs, however, both the applicable statutes and the case law require decision of the merits of those claims before the legislative body of the City of Cincinnati, and do not allow for the subsequent judicial remedy ordered by the District Judge.

I join the result reached by Judge Weick’s opinion. I also join it in its disposition of plaintiffs’ antitrust appeal and in its disposition of plaintiffs’ claims of city ordinance and state law violations.

I also agree that no appeal procedure from the legislative decisions of the Cincinnati City Council pertaining to the Council’s formulation and adoption of the Urban Renewal Plan was provided by Congress in 42 U.S.C. § 1450 et seq. (1970), and that under the fact posture of this case no appeal is permissible under the terms of the Administrative Procedures Act, 5 U.S.C. §. 702 (1970).

I believe, however, that the findings of fact of the District Judge concerning plaintiffs’ claims of economic injury are not clearly erroneous and that plaintiffs had standing to bring this suit. See Data Processing Service Corp. v. Camp, 379 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). In my judgment, however, the proofs do not serve to support the District Judge’s conclusion of violations of plaintiffs’ Fourteenth Amendment rights to due process and equal protection, and hence, this case should have been dismissed under the authority of Berman v. Parker, 348 U.S. 20, 75 S.Ct. 98, 99 L.Ed. 27 (1954); United States ex rel. TVA v. Welch, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843 (1946); Tennessee Electric Power v. TVA, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939), and Woodland Market Realty Co. v. City of Cleveland, 426 F.2d 955 (6th Cir. 1970).

As to Foster v. City of Detroit, 405 F.2d 138 (6th Cir. 1968), and Norwalk v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968), I consider them not controlling for the reasons set forth in footnote 3 to Judge Weiek’s opinion.

      . The original complaint was filed in the District Court on July 2, 1966, about a year after CRC had acquired the land from the City at a cost of $587,770.04.
      In the original complaint there was no charge of antitrust violation.
      On February 21, 1967, the District Court denied plaintiffs’ application for a preliminary injunction, to enjoin completion of the garage. An Amended Complaint was filed on June 8, 1967; the Third Amended Complaint was filed on January 27, 1969; the trial commenced on June 2, 1970, and was concluded on June 25, 1970; the Memorandum Opinion of the District Court was filed on July 26, 1971.

      . Plaintiffs, who are located on the south side of Fourth Street, and their customers, would have to walk only eighty feet from the northwest corner of Fourth and Race Streets to use the existing three elevators in the garage. There is no proof that the existing elevators are not adequate to serve properly the garage. Aside froni the damage to the garage occasioned by the construction of unneeded additional elevators, the construction ordered by the Court might cost as much as $350,000. The exact amount of the construction so ordered has not been determined since the plans therefor have not been prepared.

      . The District Court relied heavily on Nor-walk v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968), which we believe is inapposite. In Norwalk the plaintiffs were directly involved (by removal) in the Urban Renewal scheme. They alleged violation of a specific standard in the Urban Renewal Act, as well as racial discrimination. The complaint was dismissed on motion and the allegations were accepted as true. Foster v. City of Detroit, 254 F.Supp. 655 (E.D. Mich., 1966), aff’d 405 F.2d 138 (6th Cir. 1968) is likewise inapplicable, as it involved due process violations in Detroit’s condemnation procedures concerning the right to compensation on the part of property owners whose lands were taken.


author: LAY, Circuit Judge.

text:
    Paul D. PRASHAR and Darlene Prashar, Appellants, v. VOLKSWAGEN OF AMERICA, INC., a corporation, and Import Motors of Chicago, Inc., a corporation, Appellees. VOLKSWAGENWERK AKTIENGESELLSCHAFT, a corporation, also known as Volkswagenwerk, G.m.B.H., Appellant, v. Paul D. PRASHAR and Darlene Prashar, Appellees.
    Nos. 72-1625, 72-1670.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 11, 1973.
    Decided June 27, 1973.
    Rehearings Denied July 19, 1973.

      Timothy J. Nimick, Sioux Falls, S. D., for Prashár and others.
    George J. Danforth, Jr., Sioux Falls, S. D., for Volkswagen.
    Harold C. Doyle, Sioux Falls, S. D., for Import Motors.
    Before LAY and STEPHENSON, Circuit Judges, and TALBOT SMITH Senior District Judge.

       The Honorable Talbot Smith, Senior United States District Judge, Western District of Michigan, sitting hy designation

   LAY, Circuit Judge.

This is a diversity of citizenship case arising in the State of South Dakota. Both appeals revolve around the same basic question — whether compliance with Rule 3 of the Federal Rules of Civil Procedure constitutes “commencement of an action” sufficient to toll the South Dakota statute of limitations. Plaintiffs brought an action to recover for personal injuries incurred on October 5, 1968, while operating a Volkswagen on a South Dakota highway. The defendants were the manufacturer, Volkswagenwerk Aktiengesellschaft; the importer, Volkswagen of America, Inc.; and the regional distributor, Import Motors of Chicago, Inc. The complaint was filed on October 4, 1971, one day prior to the running of the South Dakota statute of limitations, in the office of the clerk of the United States District Court for the District of South Dakota. However, the defendants were not personally served with process until after the applicable statute of limitations had run. Each of the defendants moved for summary judgment alleging that the period of limitations had not been tolled by the filing of the complaint in the federal district court. For under South Dakota law an action is “commenced” when either the summons is served on the defendant or the summons is delivered to the sheriff with the intent that it actually be served. The district court acknowledged that if the action could be deemed “commenced” under the federal rules the applicable period of the statute of limitations would be tolled. However, the trial court felt bound by Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949), and Groninger v. Davison, 364 F.2d 638 (8 Cir. 1966), and granted summary judgment to Volkswagen of America and Import Motors, 347 F. Supp. 129. The court denied Volkswagenwerk Aktiengesellschaft’s motion for summary judgment, holding that Rule 4(i) (1), Fed.R.Civ.P., governed service on the foreign corporation and since South Dakota had no comparable provision for such service, the filing of the complaint tolled the statute against this foreign corporation. In denying the motion, the district court granted a certificate pursuant to 28 U.S.C. § 1292(b) enabling Volkswagenwerk Aktiengesellschaft to appeal along with the plaintiffs.

We find that Rule 3 of the Federal Rules of Civil Procedure governs both appeals and order the reinstatement of the action against all defendants.

The Ragan case involved a diversity suit brought to recover damages for personal injuries occurring in Kansas. The complaint was filed within the applicable Kansas statute of limitations. However, the summons was not served on the defendant until after the time period had expired. The Kansas statute of limitations provided that an action would be deemed commenced at the time the summons was served. The Supreme Court held that even though the plaintiff had complied with Rule 3 of the Federal rules, the action was nevertheless barred. The Court reasoned that:

“Where local law qualifies or abridges it, the federal court must follow suit. Otherwise there is a different measure of the cause of action in one court than in the other, and the principle of Erie R. Co. v. Tompkins is transgressed.” Ragan v. Merchants Transfer Co., 337 U.S. at 533, 69 S.Ct. at 1235.

Some sixteen years later in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), the Court was faced with a direct conflict between Federal Rule of Civil Procedure 4(d)(1) and a state law governing service of process. A diversity suit -was timely filed in the Massachusetts federal district court. Service of process was made pursuant to Rule 4(d)(1) by leaving copies of the summons and complaint with the defendant’s wife at his residence. The defendant urged that the action should be dismissed since the service of process was contrary to state law which required “in hand” delivery of the summons to the defendant. The federal district court, relying on Ragan and Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), granted summary judgment to the defendant. On appeal the Supreme Court reversed. This time the Court did not apply the state law and through Chief Justice Warren wrote:

“[I]t cannot be forgotten that the Erie rule, and the guidelines suggested in York, were created to serve another purpose altogether. To hold that a Federal Rule of Civil Procedure must cease to function whenever it alters the mode of enforcing state-created rights would be to disembowel either the Constitution’s grant of power over federal procedure or Congress’ attempt to exercise that power in the Enabling Act.” Hanna v. Plumer, 380 U.S. at 473-474, 85 S.Ct. at 1145.

Some courts have taken umbrage in the Hanna language to believe that Ragan was overruled. Several commentators have joined in this belief. Other courts, such as our own, have disagreed and under circumstances on all fours with Ragan have reluctantly felt compelled to apply the law of Ragan Undoubtedly the total demise of Ragan would not sadden anyone — perhaps only because of the harshness of the rule to the individual case.

However, it is not the prerogative of this court to overrule Ragan. And there should be little doubt as to the verity of Judge Vogel’s observation in Groninger: Hanna did not overrule Ragan. The Supreme Court, although perhaps tenuously in the eyes of many, still sought to distinguish Ragan in Hanna. The Court made direct reference to the fact that Ragan did not involve a federal rule as broad as the state rule with which it purportedly clashed, 380 U.S. at 470, 85 5. Ct. 1136, and the Court additionally observed that following Rule 4(d)(1) did not involve, as it did in Ragan, “a situation where application of the state rule would wholly bar recovery . . . .” Id. at 469, 85 S.Ct. at 1143. Thus we reaffirm, as we did in Groninger, that for us to ignore Ragan would abdicate our trust as an inferior federal court bound by higher law. However, contrary to the defendants’ urging, this does not conclude the matter.

It is recalled that Hanna distinguished Ragan on the ground that Federal Rule 3 was not broad enough to cover the particular problem involved in Ragan. Federal Rule 3 does not attempt to specify that filing tolls the controlling statute of limitations. On the other hand the Kansas statute in Ragan did specifically address itself to the manner of tolling the period of limitations.

The significance of this relates to our reading of Ragan that Rule 3 was not controlling since the Kansas commencement of action statute was so intimately bound up with the rights and obligations created by the state statute of limitations that the state law governed under Erie principles.

In this regard, the Ragan Court specifically considered the fact that under Kansas law the commencement of actions was an integral part of the statute of limitations. Ragan, supra, 337 U.S. at 532, 534, 69 S.Ct. 1233, 93 L.Ed. 1520. In the instant case it is urged that the South Dakota statute on commencement of action is not an integral part of the statute of limitations. Although contained in the same chapter along with the statute of limitations, the South Dakota statute defining when an action is commenced does not refer to the limitations statute. We deem it significant that the South Dakota Supreme Court has held that the commencement of actions statute is a general statute. Thus in Taylor v. McCarty, 68 S.D. 510, 4 N.W.2d 816, 817-818 (1942), the South Dakota Supreme Court specifically observed:

“SDC 33.0202 [commencement of action statute] appears as part of a chapter of our Code dealing with the limitations of actions. Similar provisions have been construed by other courts as only fixing the time of commencement of the action for the purpose of applying the statute of limitations. See Wait’s New York Practice Simplified, 4th Ed., Vol. 1, p. 717; H. L. Spencer Co. v. Koell, 91 Minn. 226, 97 N.W. 974. However, in the case of Tabour Realty Co. v. Nelson, et al., 56 S.D. 405, 228 N.W. 807, the quoted statute was interpreted as a rule of general application in fixing the commencement of actions. That interpretation has been adopted by the Legislature through enactment of the South Dakota Code of 1939 (In re Gooder’s Estate, S.D., [68 S.D. 415], 3 N.W.2d 478), and we are not at liberty to reconsider its construction.”

Even though one may conclude that the South Dakota commencement statute is not an integral part of that state’s statute of limitations, the question remains whether this should constitute a material difference. The defendants urge that it does not since Ragan stressed that “where one is barred from recovery in the state court, he should likewise be barred in the federal court,” 337 U.S. at 532, 69 S.Ct. at 1234, and consequently, it is immaterial whether or not the “commencement” provision was or was not intended to be an integral part of the statute of limitations. Cf. 2 Moore, Federal Practice § 3.07[4.-3-l] at 779 (2d ed. 1970).

In applying Ragan and its analysis of Erie and Guaranty Trust, we adhere to Chief Justice Warren’s admonition in Hanna that the “out-come determination” test cannot be read without reference to the twin-aims of Erie: (1) discouragement of forum shopping and (2) avoidance of inequitable administration of the laws. 380 U.S. at 468, 85 S.Ct. 1136.

When Federal Rule 3 and the South Dakota commencement statute are examined as “housekeeping rules” it is obvious that we are dealing only with a mode of enforcing state-created rights. There is little or no encroachment on state policy when we adopt one rule over the other. The manner in which the tolling statute operates is primarily designed to put litigants on notice that suit is being filed. As Justice Black observed in Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467, 82 S.Ct. 913, 916, 8 L.Ed. 2d 39 (1962):

“When a lawsuit is filed, that filing shows a desire on the part of the plaintiff to begin his case and thereby toll whatever statutes of limitation would otherwise apply. The filing itself shows the proper diligence on the part of the plaintiff which such statutes of limitation were intended to insure.”

When considered in this light there is little likelihood that the federal rule would cause a plaintiff to choose the federal court. Compare Byrd v. Blue Ridge Cooperative, Inc., 356 U.S. 525, 536-540, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958). Under South Dakota law, at the time of filing the complaint in federal court the limitation period was still running in the state court. Cf. Sylvestri v. Warner & Swasey Co., 398 F.2d 598, 606 (2 Cir. 1968). All that was necessary under state law to toll the statute would have been to deliver the summons to the sheriff in the county wherein the defendant corporations were doing business with the intent that the summons actually be served within sixty days. See SDCL Ann. § 15-2-31. Surely this additional act is not so substantial to motivate the plaintiff to choose one forum over another. As has often been said, federal diversity actions can never be identic to those carried out in state form. See Atkins v. Schmutz Manufacturing Company, 435 F.2d 527, 536 (4 Cir. 1970). However, even where the facts might favor the choice of the federal forum, pragmatism requires recognition of Mr. Justice Harlan’s observation that “litigants often choose a federal forum merely to obtain what they consider the advantages of the Federal Rules of Civil Procedure or to try their cases before a supposedly more favorable judge.” Hanna v. Plumer, 380 U.S. at 475, 85 S.Ct. at 1146, 14 L.Ed.2d 8. Moreover, we note that Erie was borne out of the equal protection problems generated in Swift v. Tyson, 41 U.S. (16 Pet) 1, 10 L.Ed. 865 (1842). This constitutional concern was intrinsically coupled with the vital recognition of the necessary bridling of encroaching federalism in areas of state policy. As Mr. Justice Harlan stated, the primary concern in Erie was the choice of rule which “would substantially affect those primary decisions respecting human conduct which our constitutional system leaves to state regulation.” Hanna v. Plumer, 380 U.S. at 475, 85 S.Ct. at 1146. The Supreme Court in Byrd v. Blue Ridge Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958), lent further explication to this principle. An injured workman sued in tort in federal court and the defendant pleaded immunity because the plaintiff allegedly was a statutory employee under workmen’s compensation law. The basic issue was whether the plaintiff was entitled in federal court to have the factual issue presented to a jury or following state law, tried solely to a judge. Mr. Justice Brennan observed:

“We find nothing to. suggest that this rule [that the defense immunity of a statutory employer was a matter to be decided by the court] was announced as an integral part of the special relationship created by the statute. Thus the requirement appears to be merely a form and mode of enforcing the immunity . . . and not a rule intended to be bound up with the definition of the rights and obligations of the parties.” Byrd v. Blue Ridge, 356 U.S. at 536, 78 S.Ct. at 900.

The defendants have not pointed to, nor have we found, any state policy expressed in South Dakota similar to that found by the court of appeals in Merchants Transfer & Warehouse Co. v. Ragan, 170 F.2d 987 (10 Cir. 1948), where the Kansas statute of limitations was construed to be integrated with the rule relating to commencement of actions. Cf. Isaacks v. Jeffers, 144 F.2d 25 (10 Cir. 1944), cert, denied, 323 U.S. 781, 65 S.Ct. 270, 89 L.Ed. 624. Consequently, application of Rule 3 to the South Dakota statute of limitations does not alter “the mode of enforcement of state-created rights in a fashion sufficiently ‘substantial’ to raise the sort of equal protection problems to which the Erie opinion alluded.” Hanna v. Plumer, supra, 380 U.S. at 469, 85 S.Ct. at 1143.

We conclude that it is only when a state legislates a rule regarding the commencement of action as an integral part of the statute of limitations that a state policy making a mode of enforcing a state-created right intrinsically material to the right involved becomes clearly discernible and substantial. It is only then that Erie principles as set forth in Ragan must govern the litigation. Cf. Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 212, 60 S.Ct. 201, 84 L.Ed. 196 (1939).

Having found SDCL Ann. §§ 15-2-30 and 15-2-31 not to be so intrinsically related to the rights flowing from the state statute of limitations, we conclude that pursuant to the dictates of Hanna v. Plumer, supra, Rule 3 must control the manner of tolling the statute of limitations. In accord, Chappell v. Rouch, 448 F.2d 446 (10 Cir. 1971).

The judgment in 72-1625 is reversed and the actions are ordered reinstated; the judgment in 72-1670 is affirmed for the reasons stated herein.

      . The South Dakota Compiled Laws Ann. (1967) j>rovide:
      “15-6-3 — COMMENCEMENT OE ACTION
      “A civil action is commenced as provided in §§ 15-2-30 and 15-2-31.
      “15-2-30. Commencement of action by service of summons — Summons on codefendant. — An action is commenced as to each defendant when the summons is served on him, or on a codefendant who is a joint contractor or otherwise united in interest with him.
      “15-2-31. Attempted commencement of action by delivery of summons to sheriff — Publication or service following attempt. — An attempt to commence an action is deemed equivalent to the commencement thereof when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county in which the defendants or one of them, usually or last resided; or if a corporation be defendant, to the sheriff or other officer of the county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. Such an attempt must be followed by the first publication of the summons, or the service thereof, within sixty days.”

      . In Groninger, an action for personal injuries was filed in the federal district court one day before Iowa’s two-year statute of limitations was to expire. The defendant moved for summary judgment on the ground that the suit had not been commenced within the two-year period since Rule 49 of the Iowa Rules of Civil Procedure specifically stated that an action was deemed commenced for purposes of tolling the statutes of limitations by serving the defendant with an original notice. The district court granted the defendant’s motion and this court affirmed — concluding that the case was controlled by the Supreme Court’s opinion in Ragan v. Merchants Transfer & Warehouse Co., supra.

      . See, e. g., Grabowski v. United States, 294 F.Supp. 421 (D.Wyo.1968) ; Elizabethtown Trust Co. v. Konschak, 267 F. Supp. 46 (E.D.Pa.1967) ; Sylvestri v. Warner & Swasey Co., 244 F.Supp. 524 (S.D.N.Y.1965), aff’d, 398 F.2d 598 (2 Cir. 1968) ; cf. Hardy v. Green, 277 F. Supp. 958 (D.Mass.1967) ; Newman v. Freeman, 262 F.Supp. 106 (E.D.Pa. 1966) ; Callan v. Lillybelle, Ltd., 39 F. RJD. 600 (S.D.N.Y.1966).

      . See, e. g., 2 Moore, Federal Practice § 3.07 [4.-3-1] at 37 (1972 Supp.) ; Stason, Choice of Law Within the Federal System: Erie versus Hanna, 52 Cornell L.Q. 377, 397 (1967).

      . In Groninger v. Davison, 364 F.2d at 642, Judge Vogel observed that “[w]hile it is difficult to reconcile Hanna v. Plumer with the holding in Ragan, we nevertheless must conclude that the majority of the Supreme Court felt that it was not an overruling of Rag-an.” See also Sylvester v. Messier, 351 F.2d 472 (6 Cir. 1965), cert. denied, 382 U.S. 1011, 86 S.Ct. 619, 15 L.Ed.2d 526 (1966) ; Anderson v. Phoenix of Hartford Insurance Co., 320 F.Supp. 399 (W.D. La.1970) ; Decker v. Fox River Tractor Co., 309 F.Supp. 648 (E.D.Wis.1970) ; O’Shea v. Binswanger, 42 F.R.D. 21 (D.Md.1967) ; cf. Anderson v. Papillion, 445 F.2d 841 (5 Cir. 1971).

      . There are probably many who share Mr. Justice Harlan’s concurring reasoning in Hanna:

      “At most, application of the Federal Rule would have meant that potential Kansas tort defendants would have to defer for a few days the satisfaction of knowing that they had not been sued within the limitations period. The choice of the Federal Rule would have had no effect on the primary stages of private activity from which torts arise, and only the most minimal effect on behavior following the commission of the tort. In such circumstances the interest of the federal system in proceeding under its own rules should have prevailed.” 380 U.S. at 477, 85 S.Ct. at 1147.

      . The Court, well aware of the existence of Ragan, noted that:
      “[T]his Court has never before been confronted with a case where the applicable Federal Rule is in direct collision with the law of the relevant State . . . .” Hanna v. Plumer, 380 U.S. at 472, 85 S.Ct. at 1144.

      . Kan.Gen.Stats.1935, § 60-308 provided:
      “An action shall be deemed commenced within the meaning of this article [statute of limitations], as to each defendant, at the date of the summons which is served on him, or on a codefendant who is a joint contractor, or otherwise united in interest with him. Where service by publication is proper, the action shall be deemed commenced at the date of the first publication. An attempt to commence an action shall be deemed equivalent to the commencement thereof within the meaning of this article when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons within sixty days.”

      . South Dakota Compiled Daws Ann. § 2-14-9 (1967) specifically provides that “[s]ource notes, cross-references, and titles whether designating entire titles, parts, chapters, sections, or subdivisions, constitute no part of any statute.”

      . That the commencement of action statute is general in nature and affects statutes other than limitations is further exemplified by SDCD Ann. § 15-6-26 (a) which states that “[a]fter commencement of the action the deposition may bo taken without leave of court. . . . ”
      See also Tabour Realty Co. v. Nelson, 56 S.D. 405, 228 N.W. 807 (1930) (garnishment proceedings) ; Taylor v. McCarty, supra (appointment of receiver).

      . “Erie and its offspring cast no doubt on the long-recognized power of Congress to prescribe housekeeping rules for federal courts even though some of those rules will inevitably differ from comparable state rules. Cf. Herron v. Southern Pacific Co., 283 U.S. 91, [51 S.Ct. 383, 75 L.Ed. 857]. ‘When, because the plaintiff happens to be a non-resident, such a right is enforceable in a federal as well as in a State court, the forms and mode of enforcing the right may at times, naturally enough, vary because the two judicial systems are not identic.’ Guaranty Trust Co. v. York, supra, 326 U.S. at 108, [65 S.Ct. at 1469] ; Cohen v. Beneficial Loan Corp., 337 U.S. 541, 555 [69 S.Ct. 1221, 3229, 93 L.Ed. 1528].” Hanna v. Plumer, 380 U.S. at 473, 85 S.Ct. at 1145.

      . The concern of Erie was with discrimination against citizen-defendants. Rag-an similarly involved a citizen-defendant. Here, however, as in Sylvestri v. Warner & Swasey Co., 398 F.2d at 606, we are dealing with non-resident defendants and it is difficult to assess any discrimination against the citizen-plaintiffs by reason of allowing the action to proceed in the federal court.

      . Thus, even by here applying Buie 3 the federal court is still governed by the time-periods' set forth in the state statute of limitations. See Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945).

      . Of course, the troublesome question is what difference does it make whether a state reads two rules together to reach a given result or legislates one rule which embodies the two to reach the same result. We recognize merit to Professor Moore’s criticism of the approach taken here. See 2 Moore, Federal Practice § 3.07 [4.-3-1] at 779 (2d ed. 1970).
      Yet we think his Erie answer based on “outcome” too simplistic in view of Byrd and Hanna. It would have caused less consternation to all if Mr. Justice Harlan’s views in Hanna would have been adopted by the majority, but the fact remains they were not. In Hanna the Court recited language of the Fifth Circuit which reads:
      “ ‘One of the shaping purposes of the Federal Buies is to bring about uniformity in the federal courts by getting away from local rules. This is especially true of matters which relate to the administration of legal proceedings, an area in which federal courts have traditionally exerted strong inherent power, completely aside from the powers Congress expressly conferred in the Bules. The purpose of the Erie doctrine, even as extended in York and Ragan, was never to bottle up federal courts with “outcome-determinative” and “integral-relations” stoppers — when there are “affirmative countervailing [federal] considerations” and when there is a Congressional mandate (the Buies) supported by constitutional authority.’ Lumbermen’s Mutual Casualty Co. v. Wright, 322 F.2d 759, 764 (C.A. 5th Cir. 1963).” 380 U.S. at 472-473, 85 S.Ct. at 1145.
      Thus, perhaps our approach runs counter to the “integral-relations” stoppers concern of the Fifth Circuit. However, to adopt this reasoning in the present case without further analysis would require us to say that Manna overruled Ragm, which, as we have said, we refuse to do. Nevertheless, we feel a determination must be made in every case as to whether the state has taken a rule of practice and substantially intertwined that rule with the basic right of recovery. When this is so, the rule cannot be viewed as affecting only the mode of relief, and the “countervailing considerations” of a desired uniform practice in a federal court must yield to “the policy of uniform enforcement of state-created rights and obligations.” Cf. Byrd v. Blue Ridge, supra, 356 U.S. at 537-538, 78 S.Ct. at 901.