author: TUTTLE, Circuit Judge:

text:
    ALTERMAN FOODS, INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 73-3852.
    United States Court of Appeals, Fifth Circuit.
    Dec. 30, 1974.
    Rehearing and Rehearing En Banc Denied Jan. 13, 1975.

      Cleburne E. Gregory, John C. Gray, Atlanta, Ga., for plaintiff-appellant.
    Scott P. Crampton, Asst. Atty. Gen., Myron C. Baum, Atty., Meyer Roth-wacks, Chief, App. Section, Tax Div., Dept, of Justice, Washington, D. C., John W. Stokes, U. S. Atty., Julian Longley, William D. Mallard, Jr., Asst. U. S. Attys., Atlanta, Ga., Gary R. Allen, Jay R. Weill, Attys., Tax Div., Dept, of Justice, Washington, D. C., for defendant-appellee.
    Before TUTTLE, THORNBERRY and SIMPSON, Circuit Judges.
   TUTTLE, Circuit Judge:

This tax case involves a dispute over the legal effects of cash advances made to a parent corporation Dy a number of its wholly-owned subsidiaries, shown on the books of both the subsidiaries and parent as debts outstanding, but on which there were no interest charges, no set maturity date, no notes of indebtedness, nor any apparent legal compulsion to repay the amounts outstanding. No effort was ever made to force repayment on the part of any of the subsidiaries involved.

The Internal Revenue Service assessed a deficiency of $113,882.72 with interest of $18,193.78 on the theory that these advances were in fact dividends and thus were taxable income for the 1965 tax year. The present suit was filed seeking a refund and it was tried to a jury, which found for the plaintiff and against the government. The trial court entered judgment n. o. v. for the government, finding that the advances were in fact dividends and taxable as such. The taxpayer appeals, challenging the finding that these advances were not genuine debts, but disguised dividends. We affirm.

I.

Alterman Foods, Inc. (Alterman) is in the wholesale grocery business — operating some 52 subsidiary corporations which in turn own and operate retail grocery outlets known as Big Apple Supermarkets. Some of the Big Apple corporations run more than one retail outlet, so that some 57 retail grocery outlets are involved in the case. Each Big Apple store had a separate manager, but the parent Alterman maintained books for all the corporations, and supervised day-to-day management.

The taxpayer Alterman and each Big Apple corporation at the time of each subsidiary’s incorporation entered into an agreement whereby Alterman agreed to purchase and warehouse most of the store’s inventory, furnish supervision, prepare payrolls and maintain all accounts and records, provide trucking services, maintain insurance coverage, conduct central advertising, and pay for all fixtures and other remodeling expenses or repairs which would be needed to maintain the store. In exchange for these services the subsidiary agreed to pay a management fee, in 1965 equalling approximately 3% of gross sales, and in addition agreed to make advances to the parent upon demand. The terms of each of the contracts were uniformly as follows:

“You (the subsidiary) will advance to us (the parent) from time to time, upon our request, such funds as we may require, which will be credited to your account. Accountings shall be made and had between us from time to time, at such time as we may mutually agree upon.”

Three of the Alterman brothers active in the business served as executive officers for each of the 52 subsidiaries. Their method of operation was to transfer all proceeds save those funds needed for immediate operating expenses (such as payrolls) to the parent (the taxpayer), on a weekly or biweekly basis. Funds from each of the subsidiaries were then transferred to a central account, which the parent, Alterman, used for all its operating expenses. These expenses included not only those incurred on behalf of each of the subsidiaries which hád debts outstanding, but for all other expenses incurred by Alterman in any of its business activities. Among the facets of Alterman’s business largely unrelated to the Big Apple retail stores were a trucking concern, a real estate holding company, and a wholesale grocery business selling to other independent supermarkets, restaurants and public institutions.

At the end of the tax year in question, Alterman owed its subsidiaries the total of $3,723,006.00 and was owed in turn by its Big Apple subsidiaries a total of $1,614,223.0o. The constructive dividends were assessed by the Internal Revenue Service for the advances from 27 of the 52 subsidiary corporations which showed a credit balance on May 1, 1965 in their current accounts with Al-terman. The government assessed as a dividend the increase in each credit balance from the total of the year before. The legal issue before us is whether or not these advances were in fact genuine loans, in which case they would not be taxable to Alterman as a dividend, and thus not includable in gross income.

II.

Naturally in considering the propriety of the trial court’s entry of judgment n. o. v. we consider all the evidence, not just that evidence which supports the plaintiff’s case, but do so in a light most favorable to the party opposing the motion. Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc). The cases are clear that the central issue here is the factual one of whether there was a definite intent to repay the ad-vanees. Chism’s Estate v. Commissioner, 322 F.2d 956, 960 (9th Cir. 1963); Commissioner v. Makransky, 321 F.2d 598 (3d Cir. 1963); Oyster Shell Products Corp. v. Commissioner, 313 F.2d 449 (2d Cir. 1963); Spheeris v. Commissioner, 284 F.2d 928 (7th Cir. 1960), cert. denied, 366 U.S. 944, 81 S.Ct. 1673, 6 L.Ed.2d 855 (1961); Clark v. Commissioner, 266 F.2d 698, 710-711 (9th Cir. 1959); Roschuni v. Commissioner, 29 T.C. 1193 (1958); affirmed per curiam, 271 F.2d 267 (5th Cir. 1959), cert. denied, 362 U.S. 988, 80 S.Ct. 1074, 4 L.Ed.2d 1021 (1960).

This problem of recognizing genuine debt from spurious ones is one which arises in many contexts — the most familiar being the vast line of so-called debt-equity cases, where the issue is whether an advance made by a shareholder to a corporation is a loan, or a contribution to capital. This case involves a variation on the debt-equity problem, for here it is the corporation making advances to its sole shareholder, in this case its parent corporation.

The appellant taxpayer argues that to the extent the question of intent is a factual issue, that question is for the jury if the taxpayer asserts an intention to repay and thus arguably poses a credibility choice for the trier of fact to resolve. This argument has been rejected in a line of debt-equity cases decided by this Court, Tyler v. Tomlinson, 414 F.2d 844 (5th Cir. 1969); Berkowitz v. United States, 411 F.2d 818 (5th Cir. 1969). In these cases this Court recognized that it “requires more than a mere declaration of intention to create an indebtedness and more than the existence of corporate paper encrusted with the appropriate nomenclatural captions,” Tyler v. Tomlinson, supra, 414 F.2d at 850, and concluded that “it is not the jury’s function to determine whether the undisputed operative facts add up to debt or equity. This is a question of law.” Berkowitz v. United States, supra, 411 F.2d at 821. We believe this analogous line of cases is controlling.

Like the debt-equity cases, many different factors are considered in determining whether an advance by a corporation to a shareholder is a loan or a dividend. While the factors considered in debt-equity cases are to some extent dissimilar to those considered in corporate advance cases, due to the natural dissimilarity of the factual settings in which the cases occur, the problem of resolving conflicts between the taxpayer’s avowed intention to repay and his pattern of conduct indicating no intention to repay is identical in both types of cases. We believe the proper rule is that mere declarations by the parties that they intend a certain transaction to constitute a loan is insufficient if it fails to meet more reliable indicia of debt which indicate the “intrinsic economic nature of the transaction.” Fin Hay Realty Co. v. United States, 398 F.2d 694, 697 (3d Cir. 1968).

The reason this rule has developed is largely because these cases typically arise in the context of a closely-held corporation, where the parties do not deal at arm’s length. In this case the Alter-man brothers act as the principal executive officers of both the parent corporation and its wholly-owned subsidiaries —and it is highly unrealistic to expect them to enforce obligations against themselves.

Thus, whatever the terms of the agreement between the parent and its subsidiaries, the parent’s complete control of the creditor subsidiaries “will enable [it] to render nugatory the absolute language of any indebtedness.” P. M. Finance Corp. v. Commissioner, 302 F.2d 786, 789 (3d Cir. 1962). Where, as here, corporate advances are made to the corporation’s sole stockholder, courts look with great care to the surrounding facts and view with some suspicion declarations of intent which have the effect of maximizing the tax benefit of that stockholder. Livernois Trust v. Commissioner, 433 F.2d 879, 881 (6th Cir. 1970); P. M. Finance Corp. v. Commissioner, supra; Albert Ravano, 26 T.C.M. 793, 799 (1967); Brake & Electric Sales Corp. v. United States, 185 F.Supp. 1, 3 (D.Mass.1960), affirmed, 287 F.2d 426 (1st Cir. 1961). “We therefore look not to mere labels or to the self-serving declarations of the parties, but to the more reliable criteria of the circumstances surrounding the transaction. If none of these circumstances are in dispute, there is no jury question.” Tyler v. Tomlinson, supra, 414 F.2d at 850.

III.

Like United States v. Snyder Brothers Co., 367 F.2d 980 (5th Cir. 1966) cert. denied, 386 U.S. 956, 87 S.Ct. 18, 1021 L.Ed.2d 104 (1967) we believe in this case the intent of the parties was “objectively manifested,” Kraft Food Co. v. Commissioner, 232 F.2d 118, 123 (2d Cir. 1956) by the terms of the agreement between the parent and its wholly-owned subsidiaries. The practice of the parties of transferring virtually all the gross proceeds of the subsidiaries to the parent is undisputed, as is the fact that the parent “repaid” advances only in the sense that it made expenditures on behalf of all of its subsidiaries, and for those subsidiaries which consistently failed to make a profit eventually the parent’s relationship turned from that of debtor to that of creditor. For a number of subsidiaries, the accounts fluctuated frequently. No more systematic effort was made to repay the advances, nor was the parent under any real compulsion to do so. It would be incredible to expect the three Alterman brothers who acted as officers of each of the Big Apple subsidiaries (as well as principal officers of Alterman Foods, Inc.) to enforce an outstanding obligation which in effect they owed themselves.

As we did in Snyder Brothers, supra, 367 F.2d at 983, we again distinguish Rowan v. United States, 219 F.2d 51 (5th Cir. 1955). Unlike the ambiguity surrounding the intent of the parties in Rowan which made the parties’ assertions of intent meaningful, no similar ambiguity exists here. Whether Alter-man eventually repaid the advances made by its subsidiary was acknowledged to be almost wholly a function of the future success of the subsidiaries’ business operations. The taxpayer at no time asserted the loans would be repaid within any given period, nor was there any evidence of a plan of repayment. For those subsidiaries which continued to remain profitable, the advances would never be repaid. “[N]o deliberate attempt on [the shareholder’s] part to take affirmative steps toward repayment or indicating an intention of repayment,” Roschuni v. Commissioner, supra, 29 T.C. at 1203 was proven by Alterman. And like the facts in Rosehuni, “[t]he fact that the books of the corporation reflected these withdrawals in the form of open accounts is not a controlling factor in determining the intentions of the party.” Id.

Thus, despite certain similarities in the bookkeeping procedures followed by the individual taxpayers in Rowan and Alterman Foods, the enormous differences in the factual settings of the two cases, in our view, make Rowan inappo-site. Some real business purpose was served by the advances to the corporation by the taxpayers in Rowan — but no similar purpose can be discerned here. No explanation was offered for Alter-man’s need to “borrow” all the proceeds generated by its retail subsidiaries — • save for the desirability of avoiding all federal taxes on the transfer. Alterman Foods chose to do business by separately incorporating individual retail stores, and we do not believe it can now ignore the tax consequences of that decision simply by consistently showing the advances as loans on its own books.

We believe the following objective criteria support the determination of the trial court that “the advances were not genuine debt, but rather should be taxed as dividends. Alterman’s account was an open one, with no apparent ceiling. Alterman’s debit balance was steadily increasing, and the data subsequent to the 1965 tax year demonstrate that the amount of advances from the consistently profitable subsidiaries continued to increase.

There was no repayment schedule, indeed there was no fixed date of maturity, nor any indication that at some future point the sums advanced would necessarily be repaid. No interest was charged by the subsidiaries, nor was any collateral provided. The subsidiaries made no systematic effort to obtain repayment, nor did Alterman make any effort to repay the advances.

Under the terms of the agreement it does not appear that there was any absolute duty to repay. Rather it appears that the debt was payable only at the discretion of the debtor. The contract requiring the subsidiaries to make advances to Alterman did not establish an unconditional obligation to pay. By the terms of its agreement with its subsidiaries, Alterman was obliged to account for the advances it had received “at such time as we may mutually agree upon.” This promise of Alterman to account for its debts if the parties should so agree is virtually illusory — and even were it construed to mean the subsidiary might be able to obtain an equitable accounting, this would require the Alter-man brothers to seek collection against themselves.

Financial records admitted into evidence at the trial demonstrated that the profitable subsidiaries had large earned surpluses, but despite this had relatively poor dividend records prior to the tax year in question.

There was no particular need on the part of the parent for these advances, and certainly the advances were not intended to meet a particular business exigency or emergency — rather they were used for general operating expenses of Alterman, and not solely for the benefit of the subsidiaries. At trial the government proved that at times the parent used the advances to begin new subsidiaries, which had the incidental effect of increasing competition against other subsidiaries in the same general locale.

Finally no notes or certificates of indebtedness were used, nor did it appear that the parent would be able to repay the advances save by borrowing the money from outside lenders.

These objective criteria tend to disprove the assertion of the taxpayer that the advances made were genuine debts. We believe that the taxpayer failed to establish there was an unconditional obligation to make repayments within some determinable time period, and failed to establish that there was a definite intention to honor such obligation by making full repayment. What factors the taxpayer does argue establish its intention to repay are in our opinion insubstantial. Such allegedly objective economic indicia of debt such as consistent bookkeeping and consistent financial reporting on balance sheets are in our opinion little more than additional declarations of intent, without any accompanying objective economic indicia of debt. Some of the factors argued by the taxpayer have been considered in other cases as indicating an intention to create a genuine debt, such as consistent financial reporting, SEC filings, and the like, but standing alone they do not have the force of the objective criteria which we previously discussed, and do not present a jury question over the intent of Alter-man.

In our view the evidence overwhelmingly established the intention of Alter-man to receive the proceeds from its subsidiaries with no genuine intention to repay. The objective criteria conclusively establish that the advances failed to meet the test for debts established by the previous cases, and accordingly we affirm the judgment of the trial court.

      . Alterman’s books showed total accounts payable by its subsidiaries of $3,798,967.00. The magnitude of this figure was largely due to the inclusion in the accounts of the amounts owed by the real estate subsidiary, Altmo, which in 1965 totalled some $2,184,744.00.

      . For those subsidiaries which had owed Al-terman some amount from the year before, the government only assessed as a dividend those amounts which exceeded payment of the amounts owed from previous years.

      . Corporate distributions of earnings and profits are taxable as dividends to the shareholder under 26 U.S.C. §§ 61(a), 301 and 316 (the Internal Revenue Code of 1954). Section 316 of the Code defines dividends as “any distribution of property made by a corporation to its shareholders—
      (1) out of its earnings and profits accumulated after February 28, 1913, or
      (2) out of its earnings and profits of the taxable year (computed as of the close of the taxable year . . .), without regard to the amount of the earnings and profits at the time the distribution was made.
      Except as otherwise provided in this subtitle, every distribution is made out of earnings and profits to the extent thereof, and from the most recently accumulated earnings and profits.”

      . § 243(a) of the Code provides for an 85% intercorporate dividend deduction, and the deficiency assessed by the Commissioner was based on only 15% of the total amount advanced by the 27 subsidiary corporations on the taxpayer, which was included as a disguised dividend.

      . See, e. g., Estate of Mixon v. United States, 464 F.2d 394 (5th Cir. 1972); Tyler v. Tomlinson, 414 F.2d 844 (5th Cir. 1969); Berkowitz v. United States, 411 F.2d 818 (5th Cir. 1969); Curry v. United States, 396 F.2d 630 (5th Cir. 1968), cert. denied, 393 U.S. 967, 89 S.Ct. 401, 21 L.Ed.2d 375 (1968); Harlan v. United States, 409 F.2d 904 (5th Cir. 1969); Tomlinson v. The 1661 Corp., 377 F.2d 291 (5th Cir. 1967); United States v. Snyder Brothers Co., 367 F.2d 980 (5th Cir. 1966), cert. denied, 386 U.S. 956, 87 S.Ct. 1021, 18 L.Ed.2d 104 (1967); Aronov Construction Co. v. United States, 223 F.Supp. 175 (M.D.Ala.1963), affirmed, 338 F.2d 337 (5th Cir. 1964); Montclair, Inc. v. Commissioner, 318 F.2d 38 (5th Cir. 1963); Campbell v. Carter Foundation Production Co., 322 F.2d 827 (5th Cir. 1953): Rowan v. United States, 219 F.2d 51 (5th Cir. 1955). See, generally, Plumb, The Federal Income Tax Significance of Corporate Debt, 26 Tax L.Rev. 369 (1971); B. Bittker & R. Eustice, Federal Income Taxation of Corporations & Shareholders, ¶¶ 4.02, 4.03 (3d ed. 1971).

      . At least 13 different factors have been emphasized by this Court in the past, including: tlie names given to the certificates of indebtedness by the parties; the presence of a fixed maturity date; the source of the payments ; the right to enforce payment; the resultant increase in participation in management; the status of the contribution in relation to regular corporate creditors; the intent of the parties; the adequacy of capitalization ; the identity of interest between the creditor and stockholder; the source of the interest payments; the ability of the corporation to obtain other funding from third parties; the extent to which the advance was used to acquire corporate capital assets; and the failure of the debtor to repay on the due date or to seek postponement. These factors are by no means all inclusive. 38 relevant factors have been used at various times by the courts in determining this issue. See, Holzman, The Interest —Dividend Guidelines, 47 Taxes 4 (1969). The approach of this Court has been to consider all the various factors, and to weigh the evidence favoring characterization of the advances as equity as opposed to debt, while realizing that the various factors are not of equal significance and that no one factor is controlling. See, John Kelly Co. v. Commissioner, 326 U.S. 521, 66 S.Ct. 299, 90 L.Ed. 278 (1946); Dillin v. United States, 433 F.2d 1097 (5th Cir. 1970); Tyler v. Tomlinson, supra.

      . Both the issues of the effect of the stockholder’s participation in the management of the corporation, and the extent to which the corporation is thinly capitalized, which are important in debt-equity cases, are irrelevant to a characterization of an advance by the corporation to a shareholder. Among the factors considered by the courts in evaluating whether an advance to a shareholder is a dividend or a loan are: the extent to which the shareholder controls the corporation; the earnings and dividend history of the corporation ; the magnitude of the advances; whether a ceiling existed to limit the amount the corporation advanced; whether or not security was given for the loan; whether there was a set maturity date; whether the corporation ever undertook to force repayment ; whether the shareholder was in a position to repay the advances; and whether there was any indication the shareholder attempted to repay the advances. Livernois Trust v. Commissioner, 433 F.2d 879 (6th Cir. 1970); Jacob M. Kaplan, 43 T.C. 580 (1965); Chism’s Estate v. Commissioner, 322 F.2d 956 (9th Cir. 1963); Oyster Shell Products Corp. v. Commissioner, 313 F.2d 449 (2d Cir. 1963); Roschuni v. Commissioner, 29 T.C. 1193 (1958), affirmed per curiam 271 F.2d 267 (5th Cir. 1959), cert. denied, 362 U.S. 988, 80 S.Ct. 1074, 4 L.Ed.2d 1021 (1960); William C. Baird, 25 T.C. 387 (1955); A. J. Cohen, ¶ 63-234 P-H Memo T.C. (1953). See, generally, Note, Stockholder Withdrawals — Loans or Dividends?, 10 Tax L.Rev. 469 (1955) ; Bittker & Eustice, supra, Note 5 at j[ 7.05.

      . Because the primary method of “repayment” was to use current expenditures for inventory and overhead made on behalf of each subsidiary to offset the subsidiary’s advances, so long as the subsidiary’s proceeds continued to outpace its costs (i. e., so long as it returned a profit), the advances would never be repaid. Despite claims by the taxpayer that occasional major expenditures ior remodeling or relocation would offset advances by all profitable subsidiaries, this was proven to be untrue by the fact several of the 27 subsidiaries whose advances were assessed as a dividend underwent this type of major redesign in the years following 1965, yet their advances remained largely unpaid.


source: Caselaw Access Project

author: AINSWORTH, Circuit Judge: COLEMAN, Circuit Judge BELL, Circuit Judge

license: Public Domain

text:
    F. D. REESE et al., etc., Plaintiffs-Appellants, v. DALLAS COUNTY, ALABAMA et al., etc., Defendants-Appellees.
    No. 73-3756.
    United States Court of Appeals, Fifth Circuit.
    Dec. 30, 1974.

      J. L. Chestnut, Jr., Selma, Ala., for plaintiffs-appellants.
    W. McLeon Pitts, T. G. Gayle, Cart-ledge W. Blackwell, Jr., Selma, Ala., for def endants-appellees.
    Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
   AINSWORTH, Circuit Judge:

Plaintiffs appeal from an adverse summary judgment against their challenge to the constitutionality of the districting plan for elections to the County Commission of Dallas County, Alabama. They contend that Dallas County’s at-large election system, which requires that candidates be residents of certain districts that are not equally populated, violates the Fourteenth Amendment. Relying on Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1964), the District Court reasoned that the at-large feature of the plan preserved it against constitutional attack. In our view the plan denies “fair and effective representation” in violation of the Fourteenth Amendment, Reynolds v. Sims, 377 U.S. 533, 565, 84 S.Ct. 1362, 1383, 12 L.Ed.2d 506 (1964), and so we reverse and remand.

I. The Dallas County Districting Plan

The Statement of Agreed Facts submitted to the trial court shows that the County Commission is the governing body of Dallas County. Its responsibilities include, among others, building roads and bridges, managing and disposing of county properties, providing sewerage improvements, enforcing state health laws, settling legal claims against the county, and raising and investing county revenues. 12 Ala.Code §§ 11, 12 (1958, 1973 Cum.Supp.).

For the purpose of electing county commissioners Dallas County is divided into four districts (City, South, West, and Fork). Laws of Alabama No. 328 (Feb. 8, 1901) (as amended). The City District, containing the City of Selma, has a population of 27,379 — approximately half of the total for the county. The West, South, and Fork Districts, which are rural areas, have populations of 6,209, 14,203, and 7,505 respectively. Four commissioners and a probate judge, who can vote only to break ties, are elected from these districts. Although all the voters of Dallas County vote for all four commissioners, only one of the candidates residing in each district may be elected. The probate judge may reside in any of the districts.

II. Plaintiff’s Prima Facie Case of Invidious Discrimination

A. One Man — One Vote and Dilution

This case does not present the one man — one vote issue in its conventional form. It is undisputed that the votes cast in Dallas County elections are of equal weight. Each voter can vote for four candidates, and the election is county-wide. Rather this case is an instance of dilution of equally weighted votes — of “minimiz [ing] or cancel [ling] out the voting strength” of a group that has an identifiable set of common interests. Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965). The one man — one vote principle is violated when some votes carry more weight than others. Dilution, in contrast, minimizes the impact of one group’s votes, even though they are equal in weight to nondiluted votes. Recent decisions have recognized that “access to the political process and not population [is] the barometer of dilution of minority voting strength.” Zim-mer v. McKeithen, 5 Cir., 1973, 485 F.2d 1297, 1303 & n. 14. See White v. Reges-ter, 412 U.S. 755, 765, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314 (1973).

Dilution, or restriction of “access to the political process,” is usually accomplished by drawing district lines either to disperse the votes of one faction so that they cannot influence the outcome of elections, or to concentrate those votes in as few districts as possible, thus wasting their strength. In this case none of the familiar devices of dilution, such as gerrymandering, is present. The dilution here is alleged to be accomplished by a method usually encountered in one man — one vote cases: burdening the voters of a particular political unit with an explicit, numerical disadvantage.

B. Testing the Dallas County Plan for Dilution

Because of the explicit, numerical disparity created by the residency requirement, the injury this plan inflicts on Selma voters is apparent on its face. The citizens of Selma are forbidden to elect resident commissioners in proportion to their numbers. They must select candidates who reside not in their subdistrict but who reside in the rural subdistricts to represent Selma’s interests. It is to be expected that commissioners who are elected from rural sub-districts will give greater priority to needs of the subdistricts in which they reside than to the interests of the City of Selma. Unlike the residents of Selma, the other voters in Dallas County can choose their proportional share of the representative body from among rural candidates who, by reason of their residence in rural areas, can be expected to share their interests.

The Supreme Court and this Court have repeatedly stated that “lack of provision for at-large candidates running from particular geographical sub-districts” is a signal of unconstitutional dilution of one group’s voting strength. Zimmer v. McKeithen, 5 Cir., 1973, 485 F.2d 1297, 1305. “[I]f districts are not appropriately subdistricted to assure distribution of legislators that are resident over the entire district,” an important element of fair and effective presentation is sacrificed. Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376 (1966). See White v. Regester, 412 U.S. 755, 766 n. 10, 93 S.Ct. 2332, 2340, 37 L.Ed.2d 314 (1973). The clear implication of this conclusion is that having representatives who live among constituents is vital to maintain effective representation. Therefore, a districting scheme that inhibits the right of the residents of a subd’istrict from electing representatives living in their own area is undeniably an injury. See Moore v. Leflore County Bd. of Election Com’rs, N.D.Miss., 1973, 361 F.Supp. 609, 613, aff’d, 5 Cir., 1974, 502 F.2d 621.

Dallas County has a subdistrict residency requirement, but it falls upon the four subdistriets unequally. The number of commissioners permitted to reside in Selma is less, in proportion to its population, than the number permitted to reside in the other three subdistricts. Selma — the County’s urban area, with half the total population — is prohibited from having more than one resident commissioner, whereas the three remaining subdistricts — all rural, with the other half of the population — have three resident commissioners. Thus Selma, the urban community, is outvoted three to one by the rural areas, even though its population is virtually equal to their populations.

Dilution is established if a districting scheme works an invidious effect on an identifiable group. See, e. g., White v. Regester, supra, 412 U.S. at 765, 93 S.Ct. at 2339. In this case identifying the disadvantaged group is simple, because it is described by the boundaries of Dallas County’s City District. The discrimination, however, is not based on place of residence alone. The group of voters adversely affected by the plan is virtually coextensive with the group of city dwellers in Dallas County. The voters of Selma confront not only the common concerns that develop among residents of the same area, but also a perspective on local issues that the rural population, with its distinct social and economic interests, is unlikely to share. Defendants’ expression of concern at the prospect of a city-dominated county government clearly shows the divergence of interests. Thus the discriminatory effect of the Dallas County plan is political as well as geographical.

Finding an adverse effect on an identifiable group of voters is not sufficient in itself to establish dilution. The effect must be invidiously discriminatory. See Reynolds v. Sims, supra, 377 U.S. at 561, 84 S.Ct. at 1381. Multimember districts are not unconstitutional per se, but they are not constitutional per se either. See White v. Regester, supra, 412 U.S. at 765, 93 S.Ct. at 2339. The circumstances of the present case differ significantly from most of the decisions involving multimember districts. The Supreme Court and this Court have upheld multimember districting schemes with residency requirements somewhat similar to the one challenged here. See Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Goldblatt v. City of Dallas, 5 Cir., 1969, 414 F.2d 774. In these cases, however, the subdistricts were equally populated and thus did not cause the discrimination that appears in the present case.

The Supreme Court has reviewed a multimember plan with unequally populated residency subdistricts only once. In Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967), the statute under review provided for a county government of eleven representatives elected at large by the voters of the seven unequally populated boroughs of Virginia Beach, Virginia. That plan resembles the Dallas County arrangement in that residency requirements provided that seven of the representatives must live in different boroughs. The other four representatives, however, were elected without regard to residence. The Court held the plan constitutional. This Court has held, however, that the Dusch-type plan is not immune from constitutional attack. See Lipscomb v. Jonsson, 5 Cir., 1972, 459 F.2d 335. Like any other, mul-timember plan, the Virginia Beach plan cannot be used to perpetrate a “denial of effective participation in the political process.” Lipscomb v. Jonsson, supra, at 339.

We conclude that the circumstances of the present case differ significantly from Dusch. In that case the presence of the four positions unrestricted as to residency assured that the heavily populated boroughs would not be forced to depend on representatives from the sparsely populated ones. The effect of the plan was to give all voters an equal opportunity to choose their share of the members of the representative body from their own area. Thus as an instrument of fair and effective representation the plan could not be said to create a “distinction on the basis of race, creed, or economic status or location.” Dusch v. Davis, supra, 387 U.S. at 115, 87 S.Ct. at 1555.

A panel of this Court articulated this reading of the Dusch case in Keller v. Gilliam, 5 Cir., 1972, 454 F.2d 55. Kell er presented facts indistinguishable from those of the present case. Judge Tuttle found important differences between Keller and Dusch:

What was clear in the Virginia Beach (Dusch) case is that there was no combination by which representatives residing in the districts comprising a minority of the population could combine to work their will over the majority residing in the heavier populated precincts, except with the concurrence of some of the four councilmen who could reside in any of the boroughs and who were elected at large. Quite the contrary is obviously true here.

454 F.2d at 56. In Keller, as in the present case, preserving majority rule was not possible, and the plan was struck down. We believe Keller is sound and decline defendants’ invitation to overrule it. See Moore v. Leflore County Bd. of Election Com’rs, N.D.Miss., 1973, 361 F.Supp. 609, aff’d 5 Cir., 1974, 502 F.2d 621 (Leflore III); id., N.D.Miss., 1973, 361 F.Supp. 603 (Leflore II); id., N.D.Miss., 1973, 351 F.Supp. 848 (Leflore I).

In Davis v. Thomas County, 5 Cir., 1967, 380 F.2d 93, decided one month after Dusch v. Davis, supra, a panel of this Court upheld an at-large election— subdistrict residency plan in which the districts were unequally populated. In light of our belief in the correctness of Keller, the per curiam opinion in Thomas County cannot be followed.

The result directly supported by Keller is also in harmony with the Supreme Court’s two most recent decisions on the dilution issue. In Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973), the Court upheld a legislative reapportionment plan admittedly drawn to reflect the statewide political strengths of the major parties. The use of political criteria was permissible because no invidious discrimination occurred. Although a group of voters in a particular district might have exerted more influence if the lines had been drawn differently, no identifiable political faction was treated differently from any other.

In White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), the Court struck down multimember legislative districting plans because minorities in the area historically had been officially excluded from the electoral process. These obstacles, the Court reasoned, prevented black and Mexican-American groups from functioning as effective political forces in the context of a multi-member district.

The present case is more like Regester than Gaffney. Coneededly the discrimination here may be less severe than in Regester, insofar as city dwellers are a more heterogeneous faction than blacks or Mexiean-Americans. On the other hand, the discrimination here is current, explicit, and official, unlike the informal historical disadvantages that supported the decision in Regester. 412 U.S. at 766-769, 93 S.Ct. at 2340.

C. Discriminatory Intent

It is unclear whether dilution of a group’s voting power is unconstitutional only if deliberate. See Comment, Political Gerrymandering: A Statutory Compactness Standard as an Antidote for Judicial Impotence, 41 U.Chi.L.Rev. 398, 408-409 (1974). In any event, the intention underlying the Dallas County plan is unambiguous. Although intent often can be inferred from the effects of a districting scheme, see Wright v. Rockefeller, 376 U.S. 52, 56-57, 84 S.Ct. 603, 605, 11 L.Ed.2d 512 (1964), in this case there are explicit declarations to consider.

Defendants assert that the districting plan is designed to assure “a governing body which is knowledgeable of subjects relating to agriculture” and to prevent the city from establishing a “tyranny of the majority” that would “encroach upon legitimate minority interests.” By its sponsors’ own admission, the plan is designed to “minimize or cancel out” the voting strength of one group of voters. The Supreme Court has repeatedly declared that voters may not be excluded from the electoral process out of concern for the way they might vote. See Evans v. Cornman, 398 U.S. 419, at 423, 90 S.Ct. 1752, at 1755, 26 L.Ed.2d 370 (1970); Cipriano v. City of Houma, 395 U.S. 701, 705-706, 89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 (1969); Carrington v. Rash, 380 U.S. 89, 93-94, 85 S.Ct. 775, 778-779, 13 L.Ed.2d 675 (1965). This case presents a less extreme form of the same strategy. Instead of excluding a group of voters outright, the county has weakened their ability to participate by restricting unequally their opportunity to elect candidates from their own area.

III. Evaluating the Prima Facie Case

A. The Standard of Review

Plaintiffs have established a strong prima facie case of official discrimination intended to dilute their voting strength. Unless some justification can be discovered that rebuts this prima facie case, the discrimination is invidious and violates the Fourteenth Amendment. See, e. g., Kilgarlin v. Hill, 386 U.S. 120, 122, 87 S.Ct. 820, 822, 17 L.Ed.2d 771 (1967).

The standard of review by which justifications of the plan are to be judged is not entirely clear. See Casper, Apportionment and the Right to Vote: Standards of Judicial Scrutiny, 1973 Sup.Ct.Rev. 1, 29-32. Compare Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), with McDonald v. Board of Election Com’rs of Chicago, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). The most recent articulation of the standards of review under the Equal Protection Clause appears in Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972):

To decide whether a law violates the Equal Protection Clause, we look, in essence, to three things: the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification.

The Court concluded that statutes burdening the right to vote “must meet close constitutional scrutiny” and be “necessary to promote a compelling state interest.” Id. at 336-337, 92 S.Ct. at 1000. See Kramer v. Union Free School District, supra; Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 855-856, 31 L.Ed.2d 92.

This standard has been applied irrespective of any political or racial implications in the one man-one vote cases concerning congressional districts. Disparities in the weight accorded the votes of residents of different places has been sufficient to trigger strict scrutiny, even though location is not a suspect classification. See, e. g., Ellis v. Mayor and City Council of Baltimore, 4 Cir., 1965, 352 F.2d 123, 129. Here the presence of political discrimination, which the Supreme Court has suggested is a suspect classification, underscores the propriety of a strict standard of review.

In the one man-one vote cases, greater deference has been shown toward apportionment plans for state legislative districts than for congressional districts. Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 983-985, 35 L.Ed.2d 320 (1973). No such distinction has appeared in adjudication of the dilution issue. There is, to be sure, a strong suggestion of judicial deference to legislative judgment attacked on grounds of dilution through political discrimination. See Gaffney v. Cummings, supra, 412 U.S. at 752-753, 93 S.Ct. at 2331-2332. This deference, however, is motivated by wholly different policies from those that underlie the deference shown in Mahan v. Howell, supra. Apportionment plans for state legislative districts that deviate from the numerical ideal of equally weighted votes are tolerated out of respect for important values of federalism. The federal judiciary is reluctant to apply the principles of Equal Protection rigidly where the vitality of local political institutions and subdivisions is at stake. See Mahan v. Howell, supra, 410 U.S. at 325-330, 93 S.Ct. at 985-987. Thus a more moderate standard of review is appropriate.

In the dilution cases, however, regard for federalism is not the reason for judicial restraint, but rather respect for the institutional limitations on the courts’ ability to gauge the ramifications of districting patterns. Intentional dilution of a group’s voting strength is a serious affront to the Constitution. Establishing this injury in court, however, is often very difficult. In most dilution cases the convenient numerical guidelines available in conventional one man-one vote cases are absent. Instead the courts must evaluate evidence of the political alignments of allegedly disadvantaged factions and infer the intent of the legislature from actions that may have several plausible motives. It is not surprising, therefore, that so-called “partisan gerrymandering,” Casper, Apportionment and the Right to Vote: Standards of Judicial Scrutiny, 1973 Sup.Ct.Rev. 1, 24, is more difficult to verify than racial gerrymandering, because dilution on the basis of race can be demonstrated by reliable demographic data. Compare Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973) with Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). The difficulty of proof, however, is the principal difference.

B. Justifications for the Districting Plan

The kinds of justifications that may rebut a prima facie showing of dilution are not as clearly defined as the justifications the courts entertain in defense of deviations from numerical equality. See Reynolds v. Sims, supra, 377 U.S. at 622-623, 84 S.Ct. at 1413 (Harlan, J., dissenting). Adjudication of the latter issue long ago established that preservation of rural-urban balance in a legislative body is a categorically unacceptable reason for departing from the one man-one vote standard. See, e. g., Davis v. Mann, 377 U.S. 678, 692, 84 S.Ct. 1441, 1448, 12 L.Ed.2d 609 (1964). This purpose — the protection of “legitimate minority interests” — is the only one offered to justify the discrimination caused by the Dallas County plan.

Although defendants urge that their concern is to ensure “knowledgeable” representatives, their fear of a “tyranny of the majority” exercised by the voters of Selma demonstrates that influence rather than mere expertise, is their objective. Moreover, defendants do not explain why the residents of Selma cannot be trusted to elect representatives who are qualified to protect their interests, if agriculture is indeed so vital to the entire county.

In Dusch v. Davis, supra, the Supreme Court suggested that if all votes are equally weighted, residency districts of unequal population that preserved agrarian influence might withstand constitutional scrutiny. The Court surmised that the plan under review “seem[ed] to reflect a detente between urban and rural communities.” Id., 387 U.S. at 117, 87 S.Ct. at 1556. It is not clear that the Court intended to permit discriminatory plans to be justified by invoking the protection of agricultural interests as a purpose. The Virginia Beach plan, as we noted earlier, worked no real discrimination. Therefore the question whether protection of agricultural interests would justify a discriminatory plan was not squarely presented.

Even if Dusch does approve the use of unequally populated subdistricts under the circumstances of that case, in Dallas County there is no “detente between urban and rural communities” as found in Dusch, but instead a domination by the latter. However sufficient the preservation of agricultural influence may have been as a justification for the Virginia Beach plan, which did not compromise the democratic principle of fair and effective representation, that purpose does not justify the burdens on electoral participation created by the Dallas County Plan. Under the views we have expressed, the districting plan is constitutionally impermissible.

We remand this case, therefore, for the fashioning of appropriate relief by the District Court under the principles herein announced.

Reversed and remanded.

COLEMAN, Circuit Judge

(dissenting) with whom GEWIN, DYER, SIMPSON, CLARK and RONEY, Circuit Judges, join.

I regret that I must respectfully dissent.

A majority of the Court today holds, as I understand its opinion, that the statutory scheme for the election of county commissioners in Dallas County, Alabama, is prima facie unconstitutional, although the opinion admits, “It is undisputed that the votes cast in Dallas County elections are of equal weight. Each voter can vote for four candidates, and the election is countywide”.

The record is totally bereft of any discrimination on the basis of race, creed, or other personal status, either individually or as a group.

Every commissioner, regardless of his place of residence, is answerable to every voter in the entire county, including the voters residing in Selma. While the record fails to reflect the voting strength of Selma as contrasted to the remainder of the county, it is pointed out that Selma contains approximately half the population of the county. It goes against human experience to hold as a matter of law, I think, that any commissioner residing in the rural area and answerable to the county as a whole would likely consider that his chances of retention in elective office would be enhanced by either neglecting or ignoring the best interests of Selma voters.

Therefore, I cannot agree with the language of the opinion which states [Page 883] that, “It is to be expected that commissioners who are elected from rural subdistricts will give greater priority to needs of the subdistricts in which they reside than to the interests of the City of Selma”.

This case is before us on appeal from summary judgment and there is no evidence to support that statement.

I think the voters of Selma are getting better than equal treatment.

An examination of Title 12 [Counties] of the Code of Alabama indicates that the commissioners, along with the judge of probate, who is elected at-large as a general county official, have jurisdiction over county roads, bridges, and stock law districts, whereas they have no jurisdiction over the streets of Selma. The commissioners direct and control the property of the county, such as the courthouse. Within statutory limits they levy taxes for county purposes. They appropriate the money required for the maintenance of general county functions. They administer the liquidation of county bonded debt. They are required to publish semi-annually an itemized report of the receipts and expenditures of the county.

The governing authorities of Selma control similar functions within the corporate limits of that city. Citizens residing outside the corporate limits of Selma have no vote for officials or on other public issues in the city of Selma.

Yet, the citizens of Selma have a vote as to each and every commissioner of the entire county, including areas outside the city. Except for the levying of county taxes and expending county funds, the commissioners appear to perform very few functions of particular interest to the residents of Selma. Nevertheless, each and every commissioner on election day must submit to being weighed in the Selma scales, but the governing authorities of Selma do not have to go before the people of the county.

This is not a White v. Regester case. There the District Court found that ethnic minorities who were also a minority of the total population “had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” The Supreme Court affirmed, upon consideration of the totality of the circumstances. There is nothing to indicate in the instant case that Selma voters have any less opportunity than do county residents to participate in the political processes or to elect commissioners of their own choice. Such rights do not include the right to be elected to office or to have a neighbor elected.

I offer the further thought that the “factual” conclusions of the majority are wholly hypothetical. I think the Supreme Court decisions require proof of “a real-life impact”, Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971). In Chavis, the Supreme Court said, “The real-life impact of multi-member districts on individual voting power has not been sufficiently demonstrated, at least on this record, to warrant departure from prior cases”, Id. at 146, 91 S.Ct. at 1870.

I would therefore adhere to the teachings of the Supreme Court in Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967), which, in the absence of distinction on the basis of race, creed, economic status, or location, held: upholding a residence requirement for the election of state senators from a multi-district county we said in Fortson v. Dorsey, 379 U.S. 433, 438, 85 S.Ct. 498, 501, 13 L.Ed.2d 401, 404:

“The Seven-Four Plan makes no distinction on the basis of race creed, or economic status or location. Each of the 11 councilmen is elected by a vote of all the electors in the city. The fact that each of the seven councilmen must be a resident of the borough from which he is elected, is not fatal. In

‘It is not accurate to treat a senator from a multi-district county as the representative of only that district within the county wherein he resides. The statute uses districts in multi-dis-trict counties merely as the basis of residence for candidates, not for voting or representation. Each district’s senator must be a resident of that district, but since his tenure depends upon the county-wide electorate he must be vigilant to serve the interests of all the people in the county, and not merely those of people in his home district; thus, in fact he is the county’s and not merely the district’s senator.’

“By analogy the present consolidation plan uses boroughs in the city ‘merely as the basis of residence for candidates, not for voting or representation.’ He is nonetheless the city’s, not the borough’s, councilman. In Fort-son there was substantial equality of population in the senatorial districts, while here the population of the boroughs varies widely. If a borough’s resident on the council represented in fact only the borough, residence being only a front, different conclusions might follow. But on the assumption that Reynolds v. Sims controls, the constitutional test under the Equal Protection Clause is whether there is an ‘invidious’ discrimination.” (387 U.S. at page 115, 87 S.Ct. at page 1556, 18 L.Ed.2d at page 659)

With, deference, nothing in this case justifies an effort to undermine the teachings of Dusch. I therefore respectfully dissent.

Separate Opinion of COLEMAN, Circuit Judge.

Since I wrote the dissenting opinion in which Judges Gewin, Dyer, Simpson, Clark, and Roney joined, the majority opinion has been amended (as the majority had a right to do) by including in Footnote 9 a reference to Lytle v. Commissioners of Election of Union County, 4 Cir., 1974, 509 F.2d 1049 [No. 74-1619, June 17, 1974], The author of the majority opinion has graciously delayed its release to give me an opportunity to file this separate opinion, which I have not circulated to the other Judges for possible concurrences as I am reluctant to cause any further delay in the release of the en banc opinion.

Lytle v. Commissioners of Election, supra, was consolidated and decided with McCain v. Lybrand in the Fourth Circuit. Both cases, of course, had common issues. Lytle was concerned with the election of the Board of Control in Union County, South Carolina. Lybrand involved similar elections in Edgefield County. In both counties the members of the Board of Control were elected at large but each member had to reside in separate fixed districts of the county. The District Court had invalidated the system in both counties. The Fourth Circuit [Judges Craven, Russell, and Field] affirmed as to Union but reversed as to Edgefield. The unsuccessful appellees in Edgefield sought certio-rari. On November 25, 1974, the Supreme Court denied review, McCain v. Lybrand, - U.S. -, 95 S.Ct. 515, 42 L.Ed.2d 308 [No. 74-278, 43 USLW 3303]. I have not had an opportunity to see the petition as filed in the Supreme Court but the point as recited in USLW reads as follows:

“County officials elected at large may validly be required to reside in separate fixed districts of county, even though districts have wide population variances; attempt through residency requirement to strike balance between interests of rural and urban areas in county, provided voting rights for both areas are protected by at-large elections, meets ‘rational’ test; county plan represents proper balancing of rural-urban interests and is without such population variances among districts as to require deletion of residency requirements on constitutional grounds.”

In Union County, the urban area composed 58% of the population but only one member of the eight man board was required to reside in that area. It was pointed out that Union District (the urban area) had 17,127 people, Goshen Hill, had 561. Each had a residential member of the Board. There were no floating members as in Dusch.

This was held invalid, but the Court was careful to point out that “to strike down completely all residential requirements would mean that the urban area of Union could completely dominate and control the Board, leaving the rural areas of the county without any representative to voice their peculiar and unique territorial interests”. In decreeing transitional relief the District Court was directed to avoid such a result, saying that while awaiting a new Act of the Legislature,

“The remedy adopted should be one that recognizes and gives proper effect to the population variances among the districts as well as the economic differences among them. It was the virtue of the Dusch plan that it did exactly that.”

No figures are cited in the opinion as to Edgefield County, but it is said that “There is not the wide disparity of population among the districts as was the case in Union County. It is not obvious that a minority, either in numbers or interritorial or economic interest, can dominate the Board”.

The Edgefield case is the one on which the Supreme Court denied certio-rari.

I think the Fourth Circuit opinion in Lytle and Lybrand contains a valuable analysis of the problem we have encountered in Dallas County. Assuming that this case is, as ordered, to go back to the District Court to “fashion relief”, I suggest that it could very advantageously look carefully to the teachings of Lytle and Lybrand.

Since the Dallas County system reveals no such glaring disparities as appeared in Union County, and not now knowing the figures as to Edgefield, I adhere to my original dissent.

BELL, Circuit Judge

(concurring in part and dissenting in part):

Although I agree with the majority that this cause must be remanded, I would remand for an evidentiary hearing on the question of invidious discrimination vel non which, as I understand the law, is the sine qua non for finding a violation of the Equal Protection Clause in apportionment cases. See e. g., Dusch v. Davis, 1967, 387 U.S. 112, 116, 87 S.Ct. 1554, 18 L.Ed.2d 656; Reynolds v. Sims, 1964, 377 U.S. 533, 561, 84 S.Ct. 1362, 12 L.Ed.2d 506. “The Equal Protection Clause does not, of course, require that the State never distinguish between citizens, but only that the distinctions that are made not be arbitrary or invidious.” Avery v. Midland County, 1968, 390 U.S. 474, at 484, 88 S.Ct. 1114, at 1120, 20 L.Ed.2d 45.

This appeal is from a summary judgment upholding the districting plan for electing county commissioners in Dallas County. The implicit holding of the district court was that as a matter of law, there was no invidious discrimination in the plan. The majority of this court has found invidious discrimination as a matter of law. Because I find a fact issue for resolution in the district court, I respectfully dissent from the final determination in this court.

The invidious discrimination, if any, is against urban voters as a group — the residents of the City of Selma. There is no claim of racial discrimination. It is simply an urban versus rural resident question somewhat like that faced by the Supreme Court in Dusch v. Davis, supra. The districting plan there was upheld on facts which fell short of showing invidious discrimination. The ratio decidendi of the decision is that, given an at-large election, coupled with a district residential requirement for the candidates where the population of the districts vary widely, the constitutional test under the Equal Protection Clause nevertheless is whether there is invidious discrimination as a result of the inequality in population of the districts.

A substantial disparity from the one-man-one vote standard makes out invidious discrimination in the ordinary apportionment plan but we are here faced with an at-large plan where all voters of the county have a voice in the election of the candidates. The dilution, if any, in the vote of some residents depends on finding a group of voters who are treated differently from other groups. Having established the existence of such a group, here the voters of Selma, the next question is whether the difference, or the dilution in the terminology of the majority, reaches proportions of invidiousness.

As noted, Avery v. Midland County, supra, equates an invidious distinction between voters with arbitrariness, and appellants alleged that the Dallas County districting plan was arbitrary.

The record as now constituted shows a population disparity in the districting plan in question on an urban versus rural basis. Just under one-half of the residents in the county reside in the district comprising the City of Selma and they are allocated one commissioner for residence. There are three districts outside the city and each is allocated one commissioner for residence. Thus approximately one-half of the population residing outside Selma has three resident commissioners as against one for the other one-half residing in Selma. All four commissioners are elected at-large. But Dusch v. Davis, supra, teaches that disparity in the population of districts may be justified in an at-large election system.

It may be that taxes are not levied on citizens of Selma for expenditure in the rural areas to such a degree as would rise to the level of an invidious form of discrimination. It may be that the system can be justified in other ways. Much will depend on the structure and operation of the county government from the standpoint of taxes levied, expenditures made, and services rendered.

The majority opinion assumes invidious discrimination in the following statement:

“ . . . It is to be expected that commissioners who are elected from rural subdistricts will give greater priority to needs of the subdistricts in which they reside than to the interests of the City of Selma. Unlike the residents of Selma, the other voters in Dallas County can choose their proportional share of the representative body from among rural candidates who, by reason of their residence on rural areas, can be expected to share their interests.” P. 883.

This is disputed by the dissenting opinion; indeed, a strong argument is made that there is no discrimination at all against the citizens of Selma. I have examined the record in vain for a factual basis for either position.

My understanding of the judicial process is that constitutional rulings should not be anticipated. Ashwander v. Tennessee Valley Authority, 1936, 297 U.S. 288, 346-347, 56 S.Ct. 466, 80 L.Ed. 688, J. Brandeis, concurring. Indeed, Art. Ill of the Constitution prevents our deciding questions in the abstract. Wef are not foreclosed from requiring a factual determination because of the district court’s view that only a question of law was presented. That view may well have been proper in ruling for the defendants on the authority of Davis v. Thomas County, 5 Cir., 1967, 380 F.2d 93, now to be overruled by the majority. A decision by the district court for plaintiffs might well have required an evidentiary hearing but it is enough to say that the case was not considered by the district court in that posture.

The sum of the majority opinion is to rule for plaintiffs on the one man-one vote standard despite Duseh v. Davis, supra, which holds that an at-large election with a district residential requirement superimposed thereon may accord with that standard even with substantial disparity in the population of the districts. The determination turns on the totality of the facts and not on a mechanical or arithmetical computation to determine a variation from the one man-one vote measurement.

I am not willing to decide the case for plaintiffs or defendants absent a resolution of the disputed facts which bear on the question of invidiousness. The pretrial order recites at least one such dispute under the heading “DISPUTED FACTS”, as follows:

“In their complaint, the plaintiffs allege: ‘That three (3) out of every four dollars collected by Dallas County in the last fiscal year were levied on and collected from the citizens of Selma, Alabama. Notwithstanding, the services offered by the County to the citizens of Selma are comparatively insubstantial and grossly discriminatory.’ This fact is disputed by the defendants.”

I would hold that the disparity appearing from the districting plan itself does make out a prima facie case of invidious discrimination. Aught else appearing, the Selma voters are entitled to have two of the four commissioners reside in Selma. The burden should be on defendants to overcome the prima facie case, if they can, by offering sufficient justification for the disparity. Within this framework, I suggest that the proper disposition of this cause is to vacate and remand with direction that it go forward to an evidentiary hearing.

      . That enactment provides, in relevant part: Sec. 6. Be it further enacted, That said county of Dallas is here divided into four commissioner’s districts, as follows: City, including that portion of said county which is within the corporate limits of Selma; Fork, including that portion of said county, outside the limits of Selma, lying and being within the fork made by the Alabama and Cahaba rivers; West, including that portion of said county, which is westerly of the Cahaba river; and South, including that portion of said county which is southerly of the Alabama river; to be known as the City District, the Fork District, the West District, and the South District. That all of said members shall be elected at the general election held in August, 1902, and every four years thereafter, that one commissioner shall be elected from each of said districts, and at the time of his election shall be a bona fide resident and voter of said district; and at said election the person who shall receive more votes than any other person in the district, shall be duly declared elected as commissioner from said district; provided, that all of said commissioners shall be elected by all of the qualified voters of said county.

      . The Statement of Agreed Facts submitted to the trial court shows that' Dallas County is one of thirty-five Alabama counties operating under laws requiring the election of county commissioners who must reside within prescribed geographical subdistricts but who must be elected by an at-large county vote.

      . This distinction has emerged in one man — - one vote adjudication only recently. In the early reapportionment cases, the two concepts are combined in one description of the evils the one man — one vote principle prohibits. See Reynolds v. Sims, supra, 377 U. S. at 555, 566, 84 S.Ct. at 1378, 1384.

      . Plaintiffs of course do not assert a right to be guaranteed representation in proportion to their numbers. See White v. Regester, supra, 412 U.S. at 765-766, 93 S.Ct. at 2339. Rather they seek only to remove the legal obstacles to electing resident representatives in proportion to their numbers.

      . Defendants in fact assert that the entire governing body would be composed of Selma residents if the county is forced to abandon its present scheme. In light of the fact that Selma contains slightly less than 50 per cent of the county’s population, we are at a loss to explain this contention.

      . In Fortson, it was not claimed that the discrimination inhered in the multimember district, but rather in the use of multimem-ber districts in a statewide plan that provided for single member districts elsewhere in the state. Thus Fortson tells us very little about the issues presented in this case.

      . Several District Courts have also upheld such plans. See Dove v. Bumpers, E.D.Ark., 1973, 364 F.Supp. 407; Perkins v. Matthews, S.D.Miss., 1969, 301 F.Supp. 565; Reed v. Mann, N.D.Ga., 1964, 237 F.Supp. 22. Unequally populated districts, however,, were not alleged in any of these.

      . The same must be said of plans, such as that in Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965), that provide for equally populated districts. See Moore v. Leflore County Bd. of Election Com’rs, N.D.Miss., 1973, 361 F.Supp. 603, aff’d, 5 Cir., 1974, 502 F.2d 621.

      . Our view is shared by the Fourth Circuit, which recently struck down a districting plan indistinguishable from Dallas County’s, and on very similar facts. See Lytle v. Commissioners of Election of Union County, 4 Cir., 1974, 509 F.2d 1049 [No. 74-1619, June 17, 1974]; cf. McCain v. Lybrand, 4 Cir., 1974, 509 F.2d 1049 [No. 74-1619, June 17, 1974], cert. denied,--U.S. -, 95 S.Ct. 515, 42 L.Ed.2d 308 [November 25, 1974], decided in a joint opinion with Lytle, supra.

      Defendants also argue that Keller was in fact decided on the basis of a single member district election residency scheme, since that plan was in effect when the suit was filed. The District Court declared that plan unconstitutional and ordered at-large elections, but retained the subdistrict residency requirement. This remedy was challenged on appeal. Thus the case considered in Keller was a challenge to a plan to be implemented at the 1971 elections. The court’s analysis of that plan was based on a fully ripened controversy and is not dicta in any sense. That the same plan was enacted by the Mississippi Legislature but challenged by the Attorney General of the United States pursuant to Section 5 of the Voting Rights Act of 1965 did not diminish the vitality of the District Court’s order. Such decrees are not within the reach of Section 5 of the Act. See Connor v. Johnson, 402 U.S. 690, 691, 91 S.Ct. 1760, 1761-1762 (1971); Zimmer v. McKeithen, 5 Cir., 1972, 467 F.2d 1381; Moore v. Leflore County Bd. of Election Com’rs, D.C.Miss., 1973, 361 F.Supp. 609, aff’d, 5 Cir., 1974, 502 F.2d 621; Conner v. Board of Sup’rs of Oktibbeha Co., Miss., N.D.Miss., 1971, 334 F.Supp. 280.

      . See Williams v. Rhodes, 393 U.S. 23, 30-32, 89 S.Ct. 5, 10-11, 21 L.Ed.2d 24 (1968); Shapiro v. Thompson, 394 U.S. 618, 658-659, 89 S.Ct. 1322, 1344, 22 L.Ed.2d 600 (1969) (Harlan, J., dissenting). Moreover the Court has never suggested that political discrimination is less invidious than racial discrimination. See, e. g., Dusch v. Davis, supra, 387 U.S. at 117, 87 S.Ct. at 1556 (condemning districting plans that “minimize or cancel out the voting strength of racial or political elements of the voting population.” (Emphasis added.) Nor does the extent of the constitutional injury turn on the importance or unimportance of the election. See Hadley v. Junior College Dist. of Metro. Kansas City, Mo., 397 U.S. 50, 54-55, 90 S.Ct. 791, 794-795, 25 L.Ed.2d 45 (1970).

      . The Supreme Court has even suggested that' in cases of state legislative reapportionment, there may be a de minimis line below which a violation of the one man-one vote principle, even though clearly proved, is insignificant, although no decision has explicitly so stated. Compare Gaffney v. Cummings, 412 U.S. 735, 745, 93 S.Ct. 2321, 2326-2327, 37 L.Ed.2d 298 (1973) with Kirkpatrick v. Preisler, 394 U.S. 526, 530-531, 89 S.Ct. 1225, 1228-1229, 22 D.Ed.2d 519 (1969).

      . No racial discrimination is alleged in this case.


author: WISDOM, Circuit Judge:

text:
    John Culberson SMITH, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-3623.
    United States Court of Appeals, Fifth Circuit.
    Dec. 30, 1974.

      LeRoy A. Hartley, New Orleans, La. (Court-appointed), for petitioner-appellant.
    Donald E. Walter, U. S. Atty., Dosite H. Perkins, Jr., Joseph S. Cage, Jr., Asst. U. S. Attys., Shreveport, La., for respondent-appellee.
    Before WISDOM and BELL, Circuit Judges, and BREWSTER, District Judge.
   WISDOM, Circuit Judge:

This appeal challenges a sentence imposed in the probation revocation context. John Culberson Smith originally pleaded guilty on four separate indictments charging him with various offenses arising out of the burglary of a United States Post Office. Although the four indictments originated in different districts, three of them were transferred to the district having jurisdiction over the fourth indictment, in accordance with Fed.R.Crim.P. 20. The court sentenced Smith on July 18, 1960.

On the first indictment, which charged violations of 18 U.S.C. §§ 1707 and 2115 in two counts, the court sentenced Smith to a total of eight years imprisonment. The second indictment charged violations of 18 U.S.C. §§ 371 and 500 in eight counts. Smith was sentenced on the first count to a two-year term of imprisonment, consecutive to the eight-year term to be served on the first indictment. The court deferred imposition of custodial sentence on the remaining counts of the second indictment and placed Smith on supervised probation for a term of five years, beginning at the end of the two years custodial term levied on the first count of the second indictment. On the third and fourth indictments, which charged violations of 18 U.S.C. §§ 641 and 500, respectively, the court deferred imposition of custodial sentence and placed Smith on supervised probation for two five-year terms, concurrent with each other and with the term levied on the second indictment.

Smith completed his custodial sentences and commenced service of his probationary term on April 20, 1971. Smith violated his probation, and a rule to revoke was filed on September 3, 1971. He was apprehended on December 15, 1972.

The court reconsidered sentencing on those indictments in which imposition of custodial sentence had been suspended. On the two counts of the fourth indictment, the court ordered that Smith be imprisoned for two consecutive five-year terms. On the third indictment and on the remaining counts of the second indictment, the court reinstated Smith on supervised probation, beginning at the end of the custodial term levied on the fourth indictment.

When the district court revokes probation, it may require the probationer “to serve the sentence imposed, or any lesser sentencé, and, if imposition of sentence was suspended, [the court] may impose any sentence which might originally have been imposed”. 18 U.S.C. § 3653. In Smith’s case, imposition of sentence was suspended. Therefore, the court could impose any sentence that would have been proper if imposed at the time of the initial sentencing.

Smith does not challenge his new custodial sentence; his only quarrel is with the district court’s reinstatement of his probation. Smith does not believe that a term of probation is a “sentence” within the meaning of Section 3653. In his view, further probation is not a sentencing alternative that the district court may properly consider. We disagree.

In determining whether probation is properly defined as a “sentence”, we avoid needless terminological distinctions of artificial origin; we focus on the reality of the probationary status. Probation is a sentence like any other sentence. The A.B.A. Standards state the proper considerations:

“It [probation] is an attempt by society to impose a sanction which will accomplish its goals, just as any other sentence is designed to do. The fact that it differs from other sentences in that the defendant remains subject to a prison term if he does not comply with the conditions of his release does not suggest or require the need for . confusing terminology.”

A.B.A. Standards Relating To Probation, p. 25 (Approved Draft, 1970). With these considerations in mind, we find that the probationary term ordered by the district court was a sentence within the contemplation of Section 3653. We find no merit to the argument that a federal court cannot reinstate probation as a part of the punishment assigned, when probation is revoked and deferred sentencing takes place. It is unreasonable to suggest that, although a federal court may order the probationer incarcerated for the maximum statutory sentence, it may not order him incarcerated for a lesser term and then reinstated for the remaining portion of his original probation. We find such a principle inconsistent both with the discretion lodged in the sentencing court and with the view that we should not foreclose legitimate sentencing alternatives that otherwise would be available upon a revocation of probation.

The narrow issue we face is whether this probationary term would have been a proper sentence if originally imposed. The only relevant limitation we find is that of 18 U.S.C. § 3651, which states, in pertinent part, that “[t]he period of probation, together with any extension thereof, shall not exceed five years.”

At least one court has construed this section to mean that a probationer may not be sentenced, upon revocation of probation, to an additional term of probation that, together with his previous probation, would exceed the five-year maximum. In United States v. Buchanan, E.D.N.C.1972, 340 F.Supp. 1285, the defendant was initially placed on probation for three years. The court thereafter extended his probation for an additional year. He then violated the conditions of his probation and was sentenced to six months imprisonment as well as to two years additional probation. Buchanan, therefore, was sentenced to a total probationary term in excess of the five-year maximum. Smith’s case is distinguished from Buchanan’s in that Smith’s previous and future probationary periods will together equal only the five-year maximum, because he was given credit for the period from April 20 to September 3, 1970 when he complied with the conditions of his probation. When he is released from custody, Smith will be liable to serve a maximum of four years, seven months and seventeen days on supervised probation.

Moreover, in Buchanan the court based its decision on a narrow ground. It held that while the court may extend the term of probation up to the maximum five-year period, it may do so only if the probation has not been revoked. 340 F.Supp. 1285, 1289. Smith’s case, on the other hand, does not concern an extension of the probationary term; the district court merely reinstated the previous probationary period and required him to serve the remainder of that period upon release from custody.

Smith relies also on Fox v. United States, 10 Cir. 1965, 354 F.2d 752. Fox is not in point because the violation of probation in that case occurred after the expiration of the statutory maximum period. Right or wrong, Buchanan and Fox are not relevant to this case.

The judgment of the district court is affirmed.

      . The indictments charged Smith with breaking into a United States Post Office, theft of postal funds (cash, stamps, blank money orders and validating stamps), concealing and retaining government property with an intent to convert it to his own use, conspiracy to forge and utter counterfeit money orders, and uttering these money, orders. Because Smith accomplished the parts of this scheme at various locations, he was indicted in four different districts.


author: PER CURIAM:

text:
    C. D. LAZIER, Plaintiff-Appellant-Cross Appellee, v. Richard W. WEITZENFELD, etc., et al., Defendants-Appellees-Cross Appellants.
    No. 74-1792.
    United States Court of Appeals, Fifth Circuit.
    Jan. 2, 1975.
    Morris W. Milton, St. Petersburg, Fla., for plaintiff-appellant.
    John D. Pettigrew, Ralph H. Haben, Jr., Palmetto, Fla.,. James E. Thompson, Thomas T. Steele, Tampa, Fla., for defendants-appellees.
    Before MORGAN and CLARK, Circuit Judges, and GORDON, District Judge.
   PER CURIAM:

In his complaint Reverend C. D. Lazier sought damages for an alleged conspiracy to prevent him from exercising his right to express his views and to picket a place of public accommodation which employed a racially restrictive patronage policy. By a pre-trial stipulation, the contention was sharpened to assert a conspiracy to have plaintiff arrested because of his inquiries about the integration of this establishment. The complaint also included claims for false arrest and malicious prosecution. Upon the conclusion of an extensive hearing, the district court directed a verdict for the defendants. We affirm.

Examination of the tediously-tried, objection-filled transcript reveals that on at least one occasion prior to the night of his arrest Lazier, a Negro, had indeed threatened to integrate the premises of the Nook Bar, a public tavern, after being advised by its management that blacks were not served there, except for off-premises consumption. The reason plaintiff did not get his claims to the jury despite this favorable start, can be found in the remaining proof.

In the following statement of events which culminated in plaintiff’s arrest, we have resolved all conflicts and inferences most favorably to plaintiff’s position. Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969). Late in the night of August 1, 1971 Reverend Lazier was operating his automobile on the streets of Bradenton, Florida when he observed a widowed member of his congregation, Violet Thomas. He picked up Mrs. Thomas and they drove to the home of Shirley Murray, a friend of Mrs. Thomas, and asked her to go with them to “pick up a beer some place.” When Mrs. Murray accepted and joined the group she had her hair put up on rollers and was wearing a bathrobe.

No precise chronology for the pastor and his ladies was established, but at approximately'2:00 a.m. on August 2 the party arrived at the Nook Bar. Reverend Lazier ordered two or three cans of beer from the take-out window and then backed his car across the street onto the apron of a service station. At that point he noted a sheriff’s patrol car drive onto the parking lot of the Nook Bar and decided to wait to see if the officer was “going to buy some whiskey or something.” Instead the officer, after conversing with the manager, walked across the street and told Reverend Lazier, “These people [the operators of the Nook Bar] don’t want your business there no more.”

The following excerpts from the testimony of Reverend Lazier most aptly describe the next sequence of events:

Q. All right. Now, up to this point, may I assume that your reason for being there at the Nook was that you wanted to buy some beer ?
A. Correct.
Q. That is the only reason you were there ?
A. Eminently correct.
* * X X X X-
Q. You didn’t go there to picket;- did you?
A. No sir.
Q. You didn’t go there to express your views; did you ?
A. I went there to get a beer.
X X X X X- X-
Q. All right, Reverend Lazier. As a matter of fact, isn’t it true the reason you drove back there was simply because [Deputy Sheriff] Steve Abrams told you not to ?
A. Well, I guess that is part of it. Nobody tells me where I can go, you know.
XXX X X X
Q. But he did tell you, “Don’t go back on there because the people don’t want you on there ?”
A. Yes.
Q. And you took that as a dare; didn’t you?
A. Certainly so.
Q. And you took his dare, and you went back on there ?
A. Eminently correct.

When Reverend Lazier drove back on the parking lot of the Nook Bar Deputy Sheriff Abrams arrested him for trespassing after warning, pursuant to Fla. Stat.Ann. § 821.01.

In this case the law arises from the facts. The reasoning which brought about the Nook’s call for assistance by the sheriff and its manager’s request to Deputy Abrams to “bar” Reverend Lazier this night appears with less than crystal clarity. The Nook’s sole employee at this hour stated that she became frightened when Lazier observed to her that the parking lot contained only one car other than her own and that' it was almost closing time. She also testified she feared that if he came inside the bar and other customers came in, a fight might start. The Deputy Sheriff testified that when he arrived at the scene the barmaid told him that Reverend Lazier had asked her to go out with him. It is plain, however, that Reverend Lazier possessed absolutely no intention or purpose of desegregating the Nook Bar on this occasion, and no reasonable juror could have thought such would be his purpose. Indeed, Reverend Lazier himself testified that his intentions to picket the establishment would have involved conduct during daylight hours rather than at night. His companions on this occasion were among the most unlikely he could have selected for demonstrating against segregation. While the barmaid may have had his threats to integrate in mind when she asked Officer Abrams to prevent his return, that threat of action at another time had nothing to do with his 2:00 a. m. arrest. The proof established beyond cavil that his arrest resulted when he “took the dare.”

The District Judge correctly applied the law by directing a verdict on plaintiff’s first count, which charged a conspiracy to prevent the exercise of plaintiff’s rights of expression and to picket. The court also acted within the permissible ambit of its discretion in declining to continue to exercise pendent jurisdiction to try the remaining counts of the complaint, which asserted false arrest and malicious prosecution. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

The judgment appealed from is

Affirmed.

      . The state of Mrs. Thomas’ sobriety during the ensuing events is in conflict. However, she admitted having consumed several highballs earlier in the evening, was arrested for public drunkenness and did forfeit bail pn this charge.


author: AINSWORTH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Anthony JAMES, Defendant-Appellant.
    No. 74-2435
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 2, 1975.
    Rehearing and Rehearing En Banc Denied Feb. 6, 1975.

      Daniel S. Pearson, Miami, Fla., for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., John Milton Turner, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, circuit Judges.

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

   AINSWORTH, Circuit Judge:

Appellant, Robert Anthony James, was convicted on a four-count indictment for violations of the Mann Act, 18 U.S.C. §§ 2421, 2422, which proscribes knowingly inducing, enticing, and coercing women to travel in interstate commerce for the purpose of engaging in prostitution. In this appeal appellant alleges his counsel was ineffective because of a conflict of interest allegedly resulting from counsel’s prior representation of a Government witness; that the court erred in not giving certain instructions ; and that there was insufficient evidence to sustain the conviction on Count II of the indictment. A review of these alleged errors reveals no basis for reversal, and we therefore affirm.

Testimony at trial revealed that appellant was a pimp. In 1973, he sent Shirley Ann Newton from Atlanta to New Orleans during Mardi Gras to engage in prostitution with orders to earn $1,000. When she, at appellant’s direction, returned to Atlanta with only $600, appellant beat Shirley Ann Newton, and she engaged in further acts of prostitution in Atlanta in an attempt to make the $1,000. Subsequently, Shirley Ann Newton was forced to go from Atlanta to San Francisco to engage in prostitution for James. Appellant was also charged with coercing Sherry Dean Hill to go from Atlanta to Las Vegas for purposes of prostitution. In his brief, appellant admits the sufficiency of the evidence for all the interstate trips except that one from New Orleans back to Atlanta, Count II of the indictment.

Appellant’s trial counsel, John Rogers, had previously defended Shirley Ann Newton on various prostitution charges in state courts. It appears that Rogers’ representation of Shirley Ann Newton was often at the direction of appellant. Appellant now alleges this led to a conflict of interest between counsel’s obligation to appellant and his obligations to a former client, a conflict of interest which is claimed to have impaired cross-examination. Appellant also alleges the court should have held a hearing on this matter. The fact of Rogers’ prior representation of Shirley Ann Newton on unrelated state charges was brought to the court’s attention, and of course was well known to appellant himself. No specific showing of prejudice has been made. Indeed, appellant likely thought he had an advantage in having counsel with complete knowledge of Shirley Ann Newton’s previous history. In situations such as this where the client was aware of the previous relationship, we have denied such claims in the absence of a clear showing of prejudice. Harrison v. United States, 5 Cir., 1968, 387 F.2d 614, 615. We previously noted in a similar situation that “Mppellant cannot now, after knowingly completing the trial with such counsel, urge that he was prejudiced.” Nelson v. United States, 5 Cir., 1969, 415 F.2d 483, 487-488, cert. denied, 396 U.S. 1060, 90 S.Ct. 751, 24 L.Ed.2d 754 (1970).

Appellant next alleges he was entitled to a mistrial or an instruction regarding statements made by the prosecutor in closing argument. The statements were initially objected to, but there was no request for a mistrial or an instruction. The objected to statement is as follows:

MR. TURNER: You have heard from Shirley Ann Newton that she was a victim of two things in dealing with this defendant: One is his charm, because it was this defendant’s charm which initially caused her to enter into prostitution for him. I think that charm can be observed by all of you here, and that you saw other women sitting on the stand, women who, having dealt with this defendant, haven’t seen him for over a year, women who refused to testify, women who changed their testimony before the grand jury, just sitting here in the presence of this man.
MR. ROGERS: Now, Your Honor, at this time I hate to object, but—
THE COURT: What was the statement?
MR. ROGERS: He’s getting awful close to a motion in that he says they have changed their testimony. There is no evidence in this case of any change of testimony, Your Honor.
THE COURT: I don’t believe there is any evidence of that.
MR. TURNER: I’m sorry, Your Hon- or.

Viewing the record as a whole, including those portions of the prosecutor’s argument to which objection is made, in the context of a hotly contested trial, we are convinced no reversible error was committed. The prejudicial effect, if any, of the alleged improper argument appears to be slight while the evidence of guilt is overwhelming. Even if the argument was improper, it constituted no more than harmless error. United States v. Rhoden, 5 Cir., 1972, 453 F.2d 598, 600.

Appellant claims next that he was entitled to an- instruction on the limited use of impeachment evidence used by the prosecutor. No such instruction was properly requested by trial counsel, and thus a plain error holding would be essential to a decision to reverse. Fed.R.Crim.P. 52(b). While we have noted the desirability of instructing juries as to the limited purposes for which impeachment evidence is admitted, e. g., Slade v. United States, 5 Cir., 1959, 267 F.2d 834, we have not held that the failure to give an instruction sua sponte automatically results in reversible error. See Valentine v. United States, 5 Cir., 1959, 272 F.2d 777, 778. We decline to do so now. Rather, we note that the impeachment complained of related to the testimony of witnesses whose testimony, at best, would have been cumulative. A damning case had already been presented by the Government. Under the facts and circumstances of this case, the lack of an instruction was not so critical as to affect the substantial rights of the appellant. See United States v. Helms, 5 Cir., 1972, 467 F.2d 1085.

Finally, appellant argues there was insufficient evidence on Count II of the indictment, concerning the trip from New Orleans back to Atlanta. Appellant argues that Shirley Ann Newton’s trip from Atlanta to New Orleans and back to Atlanta constitutes only one, and not two, violations of the Mann Act. Since there was no motion for a judgment of acquittal at the close of the Government’s case, we will not review the sufficiency of the evidence save to determine whether a manifest miscarriage of justice has occurred. United States v. Frugé, 5 Cir., 1974, 495 F.2d 557, 558, and cases there cited. No such miscarriage of justice resulted here, in that the evidence of guilt was overwhelming. Moreover, the district court could have given James a consecutive sentence based on either Count III or Count IV, rather than using Count II as the basis for a consecutive sentence.

Affirmed.


author: COLEMAN, Circuit Judge.

text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. HARRISON COUNTY, MISSISSIPPI, et al., Defendants-Appellees.
    No. 73-3604.
    United States Court of Appeals, Fifth Circuit.
    Jan. 2, 1975.

      Beverley R. Worrell, Regional Sol., Norman H. Winston, Associate Regional 501., Leighton A. Beers, Jr., George D. Palmer, Attys., U. S. Dept, of Labor, Birmingham, Ala., William J. Kilberg, 501., Donald S. Shire, Deputy Associate 501., Carin Ann Clauss, U. S. Dept, of Labor, Washington, D. C., for plaintiff-appellant.
    Boyce Holleman, Jim Rose, Gulfport, Miss., for defendants-appellees.
    Before COLEMAN, CLARK and RO-NEY, Circuit Judges.
   COLEMAN, Circuit Judge.

This is a suit brought by the Secretary of Labor against the Board of Supervisors of Harrison County, Mississippi, (governing authority of that County) for injunctive relief and back pay for county employees who work at the Harrison County Home for the Poor. The Secretary contends that these employees are entitled to the minimum wages and overtime compensation prescribed by the Fair Labor Standards Act. The County denies coverage, a position sustained by the District Court.

We affirm.

The Harrison County Home is a home for paupers.

This activity is authorized by § 262 of the Mississippi Constitution of 1890, which provides as follows:

“The board of supervisors shall have power to provide homes or farms as asylums for those persons, who, by reason of age, infirmity, or misfortune, may have claims upon the sympathy and aid of society; and the legislature shall enact suitable laws to prevent abuses by those having the care of such persons.”

While this constitutional section mentions those who are old or infirm, it concludes with the all-inclusive category of those who are the victims of misfortune.

It is not open to doubt, under all the Mississippi decisions, that a county board of supervisors has no implied powers and can exercise only such authority as expressly set forth by statutes.

The Mississippi Legislature has prescribed the jurisdiction of county boards of supervisors in the matter of establishing and maintaining homes for the poor, as follows:

“Jurisdiction — county homes.
“The board of supervisors of each county shall have the jurisdiction and power necessary and proper for the relief and support of the poor of its county, and it shall have control of the county home, and may employ a suitable person to take charge of the same. It shall see that the poor are properly treated; and it may provide nurses and physicians in such cases as it may deem proper, and purchase medicines, and payment therefor may be ordered out of the proper fund by warrant on the county treasurer.” Miss.Code, 1972, Section 43-31-1.

It will be noted that this statute alludes to “the relief and support of the poor”, but further provides that they shall be properly treated, that nurses and physicians may be supplied in such cases as may be deemed proper, and that medicines may be purchased.

This legislative authority goes all the way back to Hutchinson’s Mississippi Code of 1848, Chapter 14, Article 5(2), and has been brought forward in every Code in effect since that time. The language is the same in Section 7345 of the Mississippi Code of 1942, appearing in Chapter 4 thereof, under the general heading “Paupers”. By Section 7345 of Chapter 4, for example, it is directed that the County shall provide decent burial for indigents dying within its borders even though they are not residents of the same. Section 7360 imposes the same duty upon incorporated municipalities.

All of the foregoing clearly demonstrates a fixed public policy with reference to county homes. They are solely for the succor of those who, by reason of their poverty, are unable to supply themselves with the ordinary necessities of life, such as food, clothing, and shelter, including medicine and medical attention when needed.

This Court knows, of course, as a matter of common knowledge, generally known even to the minimally informed citizen, that since the advent of various welfare programs fostered and maintained by the United States, the county poor house has almost disappeared from the scene. Very few counties find it necessary to maintain them any more, although Harrison County, a heavily populated county on the Mississippi Gulf Coast, has considered it advisable to do so. The disappearance of these facilities is no subject for regret because in the older days of a possibly more self-reliant people, the unavoidable necessity of seeking refuge at the county poor house was regarded not only as a crowning personal shame but the uttermost index to personal misfortune.

In any event, prior to 1966, the wages paid employees of the county home were of no concern to the Secretary of Labor; employees of state and local governments were exempt from the commands of the Wages and Hours law.

This case arises because Congress, in 1966, amended the Wages and Hours statutes to extend coverage to those “engaged in the operation of a hospital, [or] an institution primarily engaged in the care of the sick, the aged, the mentally ill or defective who reside on the premises of such institution”, 29 U.S.C., § 203(s)(4).

The Secretary concedes that the Harrison County Home is not a hospital, mental or physical. From the record it is apparent that it is not a home for the sick (nursing home), operated as such for the purpose of rendering the services ordinarily expected and obtainable therein, with poverty as no indispensable prerequisite for admission.

A person applying for admission to the home because of age or illness would be rejected. The primary, indispensable requirement is that he must be an indigent; age or illness is incidental. Able bodied individuals are not accepted because they are deemed indigent by choice and, as a matter of public policy, not entitled to maintenance at the cost of those who earn a living and pay taxes.

The real consideration here is what Congress intended when it extended coverage to include hospitals and institutions “primarily engaged in the care of the sick, the aged, the mentally ill or defective” (emphasis added).

The Secretary argues that because nearly all of the inmates of the Harrison County Home are old or ill, or both, the coverage applies. If Congress had not seen fit to limit coverage to those “primarily engaged” we would perceive no reason to disagree.

The words “primary” or “primarily” have often prompted the definition of the Courts. There is nothing legally obscure about their meaning. As used in an Internal Revenue statute, the word “primarily” meant “of first importance” or “principally”, Malat v. Riddell, 383 U.S. 569, 86 S.Ct. 1030, 16 L.Ed.2d 102 (1966). On another occasion the Supreme Court said that the word might also include “essentially” or “fundamentally”, Board of Governors v. Agnew, 329 U.S. 441, 67 S.Ct. 411, 91 L.Ed. 408 (1947). We shall not belabor this opinion by listing other cases which might be cited.

Obviously, the Harrison County Board of Supervisors had no authority, solely at the expense of public funds, to operate a hospital, a nursing home, a convalescent home, or a mental health facility for those who, without more, would like or “need” to reside permanently therein because of age or illness. The sole primary, essential, fundamental authority and purpose for this home was the care of the indigent. Indigency, not illness or age, was the indispensable prerequisite for the operation of the home. That the inmates were old or ill was an incidental, not a primary factor.

Thus, we are constrained to hold that the language of the statute may not be judicially stretched to include a public function, i. e. the operation of a poor house, which Congress did not see fit to mention.

This renders, it unnecessary to reach, discuss, or decide other issues raised by the parties to this appeal.

The judgment of the District Court is

Affirmed.