author: HASTINGS, Senior Circuit Judge.

text:
    James R. MADLER, Plaintiff-Appellant, v. L. Robert ARTOE, doing business as Lee Artoe Carbon Company, Defendant-Appellee.
    No. 73-1371.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 16, 1974.
    Decided March 28, 1974.

      Abraham A. Diamond, Chicago, 111., for plaintiff-appellant; Stephen H. Loeb, Chicago, 111., on the brief.
    Lee Artoe, Chicago, 111., for defendant-appellee.
    Before HASTINGS, Senior Circuit Judge, PELL and SPRECHER, Circuit Judges.
   HASTINGS, Senior Circuit Judge.

This is an appeal from an order of the United States District Court dismissing an amended complaint seeking recovery of unpaid interstate motor freight charges for lack of subject matter jurisdiction. We reverse.

The amended complaint alleges that plaintiff Madler is the assignee of the claim of Consolidated Freightways Corporation of Delaware (Consolidated) in the amount of $989.84 against defendant Lee Artoe Carbon Company (Artoe). The claim consists of unpaid freight charges incurred by Artoe as a result of transportation services performed in interstate commerce by Artoe’s direction or in its behalf by assignor Consolidated.

Consolidated is an interstate motor common carrier operating under authority of certificates of public convenience and necessity issued by the Interstate Commerce Commission pursuant to the Interstate Commerce Act Part II, Title 49 U.S.C. § 301 et seq. As such, Consolidated was authorized to perform the transportation services in issue. Defendant Artoe is a proprietorship engaged in business in Chicago, Illinois. Artoe appears throughout this proceeding and on appeal by its proprietor, Lee Artoe, acting pro se.

Plaintiff alleges that this action arises under the Interstate Commerce Act, supra, and more particularly under 49 U.S.C. § 316(b), which requires, inter alia, common carriers by motor vehicle, such as Consolidated, to “enforce just and reasonable rates.” Under this theory jurisdiction in the district court is generally asserted by virtue of Title 28, U.S.C. § 1337.

The district court, in a brief unreported memorandum opinion and order, sustained defendant’s motion to dismiss the complaint on the ground that no right of action to recover unpaid interstate common carrier freight charges exists in the federal courts, absent a requirement for “the construction of tariffs required by the Act.” The trial court held that “the complaint merely states a claim for unpaid charges which presumably were made pursuant to a contract between Consolidated and defendant.” The court distinguished two cases, hereinafter referred to, on the ground “that their adjudication required the construction of tariffs required by the Act.” (Emphasis added.) The court further concluded that in the absence of an express right of action in the Act to recover any unpaid freight charges, together with the absence of case authority, it was “loath to find that its jurisdiction extends so far.”

Finally, in denying plaintiff’s motion to alter or vacate its memorandum and order, the court stated that it “continues to regard this as an action under a contract rather than under the laws regulating commerce.” While the court has not so indicated, it would be a fair assumption that it was moved by an otherwise commendable desire to avoid making the federal court a small claims collection agency.

The issue of subject matter jurisdiction in the instant case raises the novel but important question of the nature of the claim in issue and whether it is wholly insubstantial and frivolous.

At the outset, it is obvious that Consolidated, as an entity which provides transportation of freight for hire in interstate commerce, is a creature of and is subject to regulation under the Interstate Commerce Act. A variety of statutory obligations, including those pertaining to the enforcement of just and reasonable rates, are set out in 49 U.S.C. §§ 316, 317, 318. The detail found there is complex. The district court was of the opinion that “ [i] n a statute so detailed as the Interstate Commerce Act, Congress, if it had desired to do so, could and presumably would have created an express right of action in the federal courts to recover any unpaid freight charges.” In light of this contention we shall briefly review what some of the courts have had to say on the question of jurisdiction.

We begin with the landmark case of Bell v. Hood, 327 U.S. 678, 682-683, 66 S.Ct. 773, 90 L.Ed. 939 (1946), where the Court speaking through Mr. Justice Black declared in substance that where a complaint in a federal court is so drawn as to seek recovery directly under the Constitution or laws of the United States, the court must entertain the suit, except: (a) where the alleged claim appears to be immaterial and made solely for the purpose of obtaining jurisdiction, or (b) where it is wholly insubstantial and frivolous.

In Bela Seating Co. v. Advance Transportation Co., N.D.Ill., 344 F.Supp. 854, 855 (1972), Judge Will further reads Bell v. Hood, supra, as holding that a claim must not be dismissed for lack of jurisdiction under § 1337, supra, “unless it appears, to a legal certainty, that the claim is wholly insubstantial and frivolous so far as the Constitution and the laws of the United States are concerned.”

Clearly the claim in controversy is neither insubstantial nor frivolous. The amount of the claim is not the true test. If it is within the purview of the Act which regulates the common carrier, and we think it is, then under the standards of Bell v. Hood, supra, the suit must be entertained. Whether or not an action in contract could be maintained in a state court is irrelevant to the issue of federal jurisdiction before us.

Further, our court in National Van Lines, Inc. v. United States, 7 Cir., 355 F.2d 326, 331 (1966), expressly held that 49 U.S.C. § 317(b) “imposes upon a carrier the absolute obligation to collect charges in accordance with published tariffs.” There an inadvertent mistake provided no excuse for a deviation.

Louisville & Nashville R. R. Co. v. Rice, 247 U.S. 201, 202-203, 38 S.Ct. 429, 62 L.Ed. 1071 (1918), concerned a suit by the railroad company to recover $145 based upon provisions of a tariff duly filed, published and approved as required by the Interstate Commerce Act. The question at issue turned upon a construction and an effect of that Act. The federal district court dismissed the action for want of jurisdiction. The Supreme Court reversed and held there was jurisdiction under § 24 of the Judicial Code, which is now 28 U.S.C. § 1337, supra. The Court said:

Section 24 of the Judicial Code provides that regardless of amount involved District Courts shall have original jurisdiction “of all suits and proceedings arising under any law regulating commerce.” The Interstate Commerce Act requires carrier to collect and consignee to pay all lawful charges duly prescribed by the tariff in1 respect of every shipment. Their duty and obligation grow out of and depend upon that act'. 247 U.S. at 202, 38 S.Ct. at 429.

In Atchison, T. & S. F. Ry. Co. v. Springer, 7 Cir., 172 F.2d 346, 349 (1949), our court held in an action brought by a railroad for unpaid freight charges incurred by a shipper as demur-rage, that such action arose out of the laws of the United States regulating commerce, citing Louisville & Nashville R. R. Co. v. Rice, supra, 247 U.S. at 203, 38 S.Ct. 429, and § 1337, supra. The district court here sought to distinguish Springer on the ground-that it necessitated the construction of a tariff required under the Act.

Bernstein Bros. Pipe & Machinery Co. v. Denver & R. G. W. R. Co., 10 Cir., 193 F.2d 441, 443-445 (1951), reiterates that a claim by a railroad for unpaid freight charges was properly tried in a federal district court, and that original jurisdiction arose from § 1337, supra, citing Mulford v. Smith, 307 U.S. 38, 46, 59 S.Ct. 648, 83 L.Ed. 1092 (1939), and Turner, Dennis & Lowry Lumber Co. v. Chicago, M. & St. P. Ry. Co., 271 U.S. 259, 260, 46 S.Ct. 530, 70 L.Ed. 934 (1926). Further citing Rice, supra, 247 U.S. at 202-203, 38 S.Ct. 429, and Springer, supra, 172 F.2d at 349, the Tenth Circuit specifically states that “a suit to recover a freight undercharge arises under a law regulating commerce, since the duty to pay and the right and obligation to collect grow out of and depend upon the Interstate Commerce Act.” The court goes on to hold that “[ejvery question of the construction of an interstate tariff is a question of Federal law,” and “is a judicial question of which the courts have jurisdiction in the first instance.”

Finally, in Miller v. Ideal Cement Co., D.Wyo., 214 F.Supp. 717, 718 (1963), a suit by an interstate motor freight carrier to collect unpaid freight charges, the district court held: “This court has original jurisdiction of this proceeding arising under the Acts of Congress regulating commerce, namely, 49 U.S.C. §§ 316, 317 and 304(a). Title 28 U.S.C. § 1337; Bernstein Bros. Pipe and Machinery Co. v. Denver R. G. W. R. Co., 10 Cir., 193 F.2d 441 (1951).” In its memorandum opinion in the instant case, the district court also sought to distinguish Miller, as it did Springer, because its adjudication required the construction of tariffs under the Act.

With deference to the learned district court in the case at bar, in light of the foregoing line of federal cases beginning with Bell v. Hood, supra, and Louisville & Nashville R. R. Co. v. Rice, supra, and their progeny, most of which have not been cited here, we fail to find support for its conclusion that it was without subject matter jurisdiction to entertain this cause of action.

We find and hold that an original right of action lies in the federal district courts to entertain a claim by an interstate motor freight common carrier against a consignor for unpaid motor freight charges arising out of a regulated interstate shipment.

The judgment order of the district court dismissing the amended complaint in issue is reversed. This cause is remanded to the district court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

      . § 1337. Commerce anil anti-trust regulations
      The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Stanley David PETERS, Petitioner-Appellant, v. Raymond L. GRAY, Respondent-Appellee.
    No. 73-1720.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 13, 1974.
    Decided March 29, 1974.
    James R. Glover, Madison, Wis., for petitioner-appellant.
    Robert W. Warren, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, Wis., for respondent-appellee.
    Before HASTINGS, Senior Circuit Judge, and CUMMINGS and STEVENS, Circuit Judges.
   PER CURIAM.

This is an appeal from a decision of the United States District Court for the Western District of Wisconsin which denied appellant’s petition for a writ of habeas corpus. The facts are stipulated. Judge Doyle’s summary of them is as follows:

Petitioner and a companion were arrested and charged with burglary and theft in January, 1970. At their initial appearance in County Court for Columbia County, Wisconsin, on January 12, 1970, both men were found to be indigent. The court appointed one lawyer, Lewis Charles, to represent them both. A joint preliminary examination was held on January 20,1970.

Soon after the lawyer was appointed, petitioner told him that he was dissatisfied with him.

It later developed that petitioner wanted a jury trial, but that his companion wished to waive his right to trial by jury. Their lawyer accordingly met with the presiding judge in chambers, prior to the arraignment of the two men, telling the judge that he believed the difference in opinion between the two men as to the form of the trial raised the possibility of a conflict of interest; that he wished to be relieved of the representation of one of the two men and that since petitioner had expressed dissatisfaction with his services whereas petitioner’s companion had not, he believed he should be relieved of the representation of petitioner. The presiding judge told the lawyer that he agreed that there might be a conflict of interest; that he would relieve him of the representation of one client; that it was not his policy to grant requests for changes of appointed counsel; that the lawyer was appointed first to represent petitioner; and therefore, he would appoint new counsel for petitioner’s companion.

At the arraignment which followed on January 28, 1970, petitioner asked the judge for the appointment of new counsel. The judge asked, ‘On what grounds?’ Petitioner answered:

Well, I would like to get another legal opinion; and I feel that we are incompatible as to the line of defense. Without inquiring further into the nature of petitioner’s disagreement with his appointed counsel, the judge denied his request, saying:

Well, I feel that Mr. Charles is a capable lawyer, and will advise you of your rights, and do nothing that would not be compatible with your desires in this matter; so, I would deny your request; and we’ll proceed with the arraignment.

After petitioner’s request for a different lawyer was denied, petitioner pleaded not guilty and demanded a jury trial. His lawyer then asked for and was granted permission to withdraw as counsel for petitioner’s companion.

On March 11, 1970, the state moved to dismiss the charge of theft against petitioner and petitioner pleaded guilty to the charge of burglary. On March 23, 1970, petitioner was sentenced to a term of five years in prison.

At petitioner’s initial appearance, bail had been set for him in the amount of $2,000. Petitioner had been unable to raise the amount required and had remained confined until he was convicted.

When petitioner had been arrested, he and his companion were in petitioner’s automobile. A search of the automobile at the scene of the arrest revealed a number of rifles and shotguns underneath the folded down back seat of petitioner’s car. The guns were later identified as guns taken from Thompson Electric Motor Service, the scene of the burglary and theft with which the two men were charged. At the preliminary examination one of the arresting officers testified that after removing petitioner and his companion from petitioner’s car, he reached into the front seat to remove an open can of beer from the floor and noticed the butts of several rifles or shotguns protruding from underneath the folded down back seat. Petitioner told his lawyer that the arresting officer was not telling the truth; that the guns could not have been visible to someone reaching into the front seat. Petitioner’s lawyer verified to his own satisfaction that the arresting officer was telling the truth.

Petitioner’s companion was tried without a jury on February 13, 1970. Prior to the trial, the motion to suppress the evidence seized as a result of the search of petitioner’s car was denied following a hearing. He was found guilty of both burglary and theft.

Petitioner asked his lawyer to file motions to suppress evidence seized in the search of his car, and for change of venue, and an affidavit of prejudice against the presiding judge. His lawyer refused because he did not believe there was a basis for any of the motions.

Petitioner’s lawyer met with the prosecutor and reached a plea bargain to the effect that if petitioner would plead guilty to the burglary charge, the state would move to dismiss the theft charge and would not oppose the recommendation of petitioner’s lawyer for probation.

Petitioner was informed by his lawyer of the plea bargain conference, was told that his chances of acquittal were not good, and was advised to plead guilty.”

Appellant does not contend that he was denied effective assistance of counsel. Nor can his argument be fairly characterized as a claim that he was denied a right to be represented by counsel of his choice, since there is nothing in the record to indicate that he wanted to be represented by any specific identifiable lawyer. See United States. v. Bergamo, 154 F.2d 31 (3d Cir. 1946). He contends that the state was required to appoint a different lawyer for him since he had advised the trial judge that he was dissatisfied with his counsel and the record does not disclose any acceptable reason for the judge’s refusal to appoint another lawyer for him. He stresses his status as an indigent, and argues that “respect for the dignity of the individual” justifies the relief he seeks.

We may assume that the reason given by the judge for refusing to substitute counsel — namely that appellant’s lawyer had been appointed to represent him before he was appointed to represent his codefendant — was so insubstantial as to be the equivalent of no reason at all, and therefore properly characterized by appellant as “arbitrary.” Nevertheless, appellant is not entitled to have a federal court revise that decision unless he has established that he was deprived of a federal constitutional right. It is, of course, well settled that a state court may err without offending the Federal Constitution. Since appellant received the effective assistance of counsel, and since there is no suggestion that the trial was fundamentally unfair, there is no basis for finding a violation of the Due Process Clause or of the Sixth Amendment as it applies to states by reason of the Fourteenth Amendment. The mere fact that an indigent defendant advises a state trial judge that he is dissatisfied with his lawyer' — when that advice is not supported by facts raising questions of fairness or of the adequacy of counsel’s representation — does not require the judge either to appoint another lawyer or to justify his refusal to do so. The Federal Constitution does not require state judges to follow every procedure that we might consider desirable. Since appellant did not establish any constitutional right to different counsel, we adopt as our own the following language from Judge Doyle’s Memorandum Opinion:

“It may well be advisable, any time a defendant in a criminal proceeding makes a specific request for a change of appointed counsel, that the presiding judge made an inquiry, on the record, into the reasons for the request. If he finds that the dissatisfaction is genuine and that a change of counsel at that point is practicable and will not unreasonably impede judicial processes, he can make a new appointment. On the other hand, if he finds to his satisfaction that the defendant’s objections to his appointed counsel are made as a maneuver to delay his trial or otherwise to frustrate orderly judicial processes, he can deny the request for a change of counsel. I do not think, however, that such a procedure is required under the Constitution of the United States.
I am not persuaded that a court’s refusal to change appointed counsel for an indigent in the absence of specific allegations or evidence of ineffectiveness is an unconstitutional interference with a defendant’s Sixth Amendment right to counsel or that it is comparable to the unreasonable disregard of a defendant’s right to obtain private counsel shown in the cases cited by petitioner.” ■'
The judgment is
Affirmed.

      . Memorandum Opinion at 1-3.

      . The case is therefore unlike United States v. Woods, 487 F.2d 1218 (5th Cir. 1973).

      . See People v. Crovedi, 65 Cal.2d 199, 58 Cal.Rptr. 284, 417 P.2d 868, 873 (1966). Appellant lias not indicated that his disagreements with counsel caused him to mistrust counsel, so that any right to confidence in counsel was not affected.

      . Appellant properly argues that this case is, therefore, different from United States v. Hampton, 457 F.2d 299 (7th Cir. 1972), where the criminal defendant’s objection to his appointed counsel was not voiced until the eve of trial.

      . See Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 36 L.Ed.2d 656.

      . Memorandum Opinion at 5-6.


author: BREITENSTEIN, Circuit Judge.

text:
    Gloria FORD, Plaintiff-Appellee, v. VALMAC INDUSTRIES, INC., Defendant-Appellant.
    No. 73-1448.
    United States Court of Appeals. Tenth Circuit.
    April 3, 1974.
    Dennis D. Palmer and Dwight Henderson on brief for plaintiff-appellee.
    George E. Feldmiller, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., George A. Lowe and Lowe, Lowe & Lowe, Olathe, Kan., on brief for defendant-appellant.
    Before BREITENSTEIN, McWIL-LIAMS and DOYLE, Circuit Judges.
   BREITENSTEIN, Circuit Judge.

We are concerned with the proper venue of an action alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court held that venue lay in Kansas. We allowed an interlocutory appeal under 28 U.S.C. § 1292(b).

Valmac, through a predecessor company, employed plaintiff in its Kansas plant as a chicken cutter until her discharge on September 25, 1968. Operations of the Kansas plant ended on December 31, 1968. In March, 1969, Val-mac opened a plant in Missouri and certain employees of the closed Kansas plant began work at the new Missouri plant. Plaintiff presented to the United States Equal Employment Opportunity Commission written charges of unlawful sex discrimination. The Commission made a reasonable cause finding of discrimination. Plaintiff then brought a timely action in the Western District of Missouri to enforce her rights. Venue was asserted in that district on the ground that if she had not been discriminated against she would have been employed in the Missouri plant. The employer appeared and attacked venue. The court transferred the case to Kansas.

Plaintiff then amended her complaint and asserted Kansas venue on the ground of her employment and discharge in that state, and alleged that but for the wrongful discharge she would have continued to work there. Valmac again attacked venue on the basis that it had no office in that district and could not be found there. The court denied the motion and this interlocutory appeal followed.

Section 706(f) of the Act, 42 U.S.C. § 2000e-5(f) (3), confers jurisdiction on United States District Courts, and provides that an action may be brought in the judicial district where (1) the alleged unlawful employment practice was committed, (2) where the employment records relevant to such practice are maintained, (3) where the aggrieved person would have worked but for the alleged unlawful employment practice, and (4) “if the respondent is not found within any such district, such action may be brought within the judicial district in which the respondent has his principal office.” Because the claimed unlawful employment practice occurred in Kansas, venue is in that district if the respondent may be found there. Otherwise venue is in Arkansas where the respondent has its principal office.

Valmac says that “found” requires an existing physical or business presence to sustain venue. Plaintiff argues that if the employer is subject to the jurisdiction of the district, venue is properly laid there. Valmac was subject to Kansas jurisdiction under the Kansas long-arm statute, K.S.A. § 60-308(b) (1), which says that a person is subject to Kansas jurisdiction “as to any cause of action arising from * * * (1) The transaction of any business within this state * * The allegedly wrongful discharge arose out of the business which Valmac was transacting in Kansas.

For jurisdictional purposes, the “minimum contacts” test of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95, has been expanded to the “substantial connection” standard of McGee v. International Life Insurance Co., 355 U.S. 220, 223, 78 S. Ct. 199, 2 L.Ed.2d 223. Our case is not like Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283, which holds that the unilateral activity of a person claiming a relationship with a nonresident defendant is not enough to satisfy the “contact” requirement. Ibid, at 253, 78 S.Ct. 1228. Valmac was doing business in Kansas, and employed the plaintiff to work in that business. The transaction of business in Kansas suffices to establish Kansas jurisdiction.

We are concerned with venue, not with jurisdiction. Jurisdiction is the power to adjudicate and venue is where judicial authority may be exercised. Wright, Handbook of the Law of Federal Courts 149 (1970 ed.). Jurisdiction is oft concerned with constitutional problems of due process. Venue is a legislative matter. In enacting § 706(f) Congress did not say how a corporation must be “found” in a district to establish venue. We are aware of no legislative history which aids in the ascertainment of the pertinent congressional intent. See Dubnick v. Firestone Tire and Rubber Co. of California, E.D.N.Y., 355 F.Supp. 138, 142 and particularly n. 8 and n. 11.

Valmac was “found” in Kansas for jurisdictional purposes. The problem is whether it was “found” there for venue purposes. In Freeman v. Bee Machine Co., Inc., 319 U.S. 448, 63 S.Ct. 1146, 87 L.Ed. 1509, consideration was given to the special venue provision of the Clayton Act, 15 U.S.C. § 15, which lays venue in a district where, among other things, an individual may be “found.” To the same effect is 15 U.S.C. § 22 pertaining to corporations. The court noted that a corporation may be present “in a metaphorical sense,” commented that “ ‘found’ in the venue sense does not necessarily mean physical presence,” and said that if a person is subject to the jurisdiction of a court for the purposes of a lawsuit, he is “found” there for the purposes of the special venue provisions of the Clayton Act. Ibid, at 454-455, 63 S.Ct. 1146.

Houston Fearless Corporation v. Teter, 10 Cir., 318 F.2d 822, was concerned with the general venue statute, 28 U.S.C. § 1391(c), and held that whether the corporation was “doing business” in Colorado for venue purposes must be resolved by application of the principles announced in International Shoe. Ibid, at 826. Accordingly, when a corporation is “found” in a district for jurisdictional purposes it is also “found” there for venue purposes.

This result does not conflict with that reached in Stebbins v. State Farm Mutual Automobile Insurance Company, 134 U.S.App.D.C. 193, 413 F.2d 1100, 1102-1103, cert, denied 396 U.S. 895, 90 S.Ct. 194, 24 L.Ed.2d 173. There the employee conceded the absence of venue under § 706(f) and relied on the general venue statute, 28 U.S.C. § 1391(c). The court declined to apply the general statute and said that by § 706(f) Congress intended “to limit venue to the judicial districts concerned with the alleged discrimination * * 413 F.2d at 1102. In the case at hand the alleged discrimination- did occur in Kansas.

We do not rest our conclusion on the general venue statute. Among the four venue provisions of § 706(f) is that which lays venue in the district where the alleged discrimination occurred. Here it occurred in Kansas, and the employer can be “found” in Kansas for jurisdictional purposes. It is also “found” there for venue purposes. This construction harmonizes with, and best attains, the objectives of Title VII.

Affirmed.


author: STEPHENSON, Circuit Judge.

text:
    NATIONAL CHIROPRACTIC INSURANCE CO., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 73-1781.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 15, 1974.
    Decided April 16, 1974.

      Kent M. Forney, Des Moines, Iowa, for appellant.
    William S. Estabrook, III, Atty., Tax Div., Dept, of Justice, Washington, D. C., for appellee.
    Before GIBSON, STEPHENSON and WEBSTER, Circuit Judges.
   STEPHENSON, Circuit Judge.

The sole issue on this appeal is whether the district court correctly determined that the taxpayer-appellant did not qualify as a mutual insurance company for federal income tax purposes under § 821 of the Internal Revenue Code of 1954 (26 U.S.C. § 821) because of its requirement that policy holders waive their right to dividends and because of its failure to provide insurance at cost. The district court’s decision is published at 365 F.Supp. 971. We affirm.

Taxpayer filed its tax returns for the years 1965-1970 as a mutual insurance company pursuant to 26 U.S.C. § 821. Subsequently, the Government claimed upon audit that taxpayer was subject to taxation under 26 U.'S.C. § 831, which applies to companies other than mutual insurance companies, i. e., stock companies. Deficiency assessments were levied by applying § 831 rather than § 821. After payment of the assessment, timely refund claims were filed and denied. Taxpayer then commenced this action below to recover the amount of the assessments and interest. Taxpayer’s claim was denied by the district court.

The characteristics of a mutual insurance company for tax purposes are set out in Modern Life & Accident Insurance Co. v. Commissioner of Internal Revenue, 420 F.2d 36, 38 (CA7 1970). They consist of (1) common equitable ownership of the assets by members, (2) the right of policy holders to be members to the exclusion of others and to choose management, (3) the sole business purpose of supplying insurance at cost, and (4) the right of members to the return of premiums which are in excess of the amount needed to cover losses and expenses.

The facts are undisputed. The parties agree that taxpayer complied with the first two requirements of a mutual insurance company, i. e., there is common equitable ownership and the policy holders are members to the exclusion of others and they choose the management. See 365 F.Supp. at 973.

The dispute arises with respect to whether taxpayer meets the last two requirements of the business purpose of supplying insurance at cost, and the right of members to the return of premiums in excess of the amount needed to cover losses and expenses.

The articles of incorporation of taxpayer allow the by-laws to provide for using excess monies (above the amounts needed for payment of claims and maintenance of legal reserves) in part “to protect in every way not contrary to law the philosophy, art and science of chiropractic and the professional welfare of its members.” The articles further provide that members waive all claims for dividends declared out of such excess.

The parties stipulated that taxpayer has not paid dividends to policy holders during the years in question. Taxpayer did make contributions totaling $250,-000 to the Foundation for Accredited Chiropractic Education (F.A.C.E.), a foundation which uses its funds to further research at chiropractic colleges and to aid in the instruction of the profession.

Taxpayer contends that periodic payment of dividends is not essential; it is enough that the power exists for the members to cause such a return at such time as they deem it to be appropriate. Thompson v. White River Burial Ass’n, 178 F.2d 954 (CA8 1950) Order of Railway Employees v. Commissioner, 2 T.C. 607 (1943). Further, in this case the ultimate right to require dividends remains in the policy holders. Although up to now the policy holders have not required the payment of dividends, they can do so at any time by virtue of their absolute control of the company.

The difficulty with taxpayer’s position is that its policy holders have been required to waive their claims to dividends. Substantial sums have been contributed to F.A.C.E., which can hardly be characterized as a cost of providing insurance. The policy holders have been denied the right to return of premiums in excess of cost. Under these circumstances taxpayer’s claim that it is a mutual insurance company must fail. Mutual Fire Insurance Co. of Germantown v. United States, 142 F.2d 344 (CA3 1944), cert, denied, 323 U.S. 729, 65 S.Ct. 65, 89 L.Ed. 585 (1944); American Insurance Co. of Texas v. Thomas, 146 F.2d 434 (CA5 1944).

In Penn Mutual Company v. Lederer, 252 U.S. 523, 525, 40 S.Ct. 397, 398, 64 L.Ed. 698 (1920), the Supreme Court observed, “It is of the essence of mutual insurance that the excess in the premium over actual cost as later ascertained shall be returned to the policy holder.” It is abundantly clear that the taxpayer-appellant has not met that essential during the years in question.

Affirmed.

      . The insurance contract itself also provides for this waiver of dividend claims.


text:
    Lester RUSSELL, Plaintiff-Appellant, v. Wallace BARTLEY et al., Defendants-Appellees.
    No. 73-1791.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 15, 1974.
    Decided March 27, 1974.
    Robert L. Bertram, Jamestown, Ky., for plaintiff-appellant.
    Donald F. Mintmire, Munfordville, Ky., and Michael A. Owsley, Bowling Green, Ky., for defendants-appellees; Robert B. Hensley, Hensley & Mintmire, Munfordville, Ky., and English, Lucas, Priest & Owsley, Bowling Green, Ky., on briefs.
    Before PECK and ENGEL, Circuit Judges, and CONTIE, District Judges

       Honorable Leroy J. Oontie, United States District Judge for tbe Northern District of Ohio, sitting by designation.

   PER CURIAM.

The issue in this case is one of first impression in this Circuit. We are asked to hold that the Occupational Safety and Health Act of 1970, 29 U.S. C. §§ 651-678 (hereinafter “OSHA”), impliedly created a private remedy for damages resulting from violations of the Act. For the reasons set forth in this opinion we decline to so hold.

Appellant was injured in the course and scope of his employment with the Bartley and Barton partnership, allegedly as a result of the failure of this employer to comply with provisions of OSHA. The injuries of which appellant complains were occasioned when a ditch in which he was working collapsed. He applied for and received workmen’s compensation benefits pursuant to the applicable Kentucky statutes for the injuries he sustained. Appellant instituted this suit against his employer claiming that OSHA created a private cause of action against employers for violations of the Act. Subsequently, he filed an amended complaint bringing Howard K. Bell, Consulting Engineers, Inc. (hereinafter “Bell”) into the suit as an additional defendant. Bell acted as supervising engineer and designed the plans and specifications on the project on which appellant was injured, the allegation against Bell being that its negligence was a joint and concurrent cause of the injuries. The amended complaint further alleged that all parties to the suit were residents of Kentucky and that Bell was a Kentucky corporation. Jurisdiction was asserted under 28 U.S.C. § 1331.

The District Court, acting on defendants’ motions to dismiss and for summary judgment, concluded that OSHA did not give an employee a cause of action against his employer or any other party and dismissed the complaint for want of jurisdiction. Judgment was entered in favor of defendants, and this appeal followed.

OSHA’s declared purpose is “to assure so far as is possible every working man and woman in the Nation safe and healthful working conditions. .

29 U.S.C. § 651(b). To this end the Act specifies safety requirements for employers engaged in interstate business and emphasizes the duty of the employer to provide safe working conditions. Enforcement of that duty is by criminal sanction, civil penalty and the right to injunctive relief. However, nowhere in the statute or in the record of the debate on the Act in Congress is there any mention of a private civil remedy against anyone for damages suffered by an employee because of a violation of the Act. On the contrary, the Act provides that:

“Nothing in this chapter shall be construed to supersede or in any manner affect any workmen’s compensation law or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.” 29 U.S.C. § 653(b)(4).

Arguments not unlike those made by appellant were advanced in two cases emanating from the Fifth Circuit. Hare v. Federal Compress and Warehouse Co., 359 F.Supp. 214 (N.D.Miss. 1973); Skidmore v. Travelers Ins. Co., 356 F.Supp. 670 (E.D.La.1973), aff’d per curiam, 483 F.2d 67 (5th Cir. 1973). In Hare the plaintiff sought to fix liability upon a property owner or the prime contractor who hired the subcontractor whose employee was killed as a result of alleged OSHA violations. The court dismissed this claim because “the act does not ‘enlarge or diminish or affect any . . . liabilities of employers . . . under any law . . . .’29 U.S.C. § 653(b)(4).” 359 F.Supp. at 218. Skidmore involved a complaint filed against executive officers of the injured workman’s employer for the employer’s failure to comply with the Act. The Skidmore court stated as follows: “While the statute imposes a duty on employers, ... it does not mention any private civil remedy against the employer . ” 356 F.Supp. at 671. In neither of the above cases was the employer named as a defendant, but both courts clearly recognized the difficulty in concluding that OSHA directly or impliedly created any type of civil remedy in favor of employees.

Defendant-appellee Bell was not appellant’s employer. “From the very wording of the statute and all of the legislative reports it is clear that OSHA applies only to ‘employers.’ ” Skidmore, supra, 356 F.Supp. at 672. With respect to Bartley and Barton, there is no legislative history or case law to support appellant’s proposition that OSHA created a private civil remedy and the clear language of § 653(b)(4) of the Act specifically evidences a congressional intention to the contrary. Therefore, the District Court’s determination that it lacked jurisdiction under 28 U.S.C. § 1331 was eminently correct.

The judgment is affirmed.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SECURITY NATIONAL LIFE INSURANCE COMPANY, Respondent.
    No. 73-1167.
    United States Court of Appeals, First Circuit.
    Argued Feb. 4, 1974.
    Decided March 18, 1974.
    Joseph C. Thackery, Atty., Washington, D. C., with whom Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, and William F. Wachter, Atty., Washington, D. C., were on brief, for petitioner.
    Federico A. Cordero, Santurce, P. R., for respondent.
    Before COFFIN, Chief Judge, McEN-TEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

Respondent, Security National Life Insurance Company, was found by an Administrative Law Judge of the National Labor Relations Board to have violated section 8(a)(3) and (1) of the National Labor Relations Act, in that it discharged employee Aureo Rivera because of his union activities, and to have violated section 8(a)(1) of the Act in that it interfered with, restrained and coerced its employees in the exercise of rights guaranteed them under the Act. The decision of the Administrative Law Judge was affirmed by a panel of the Board and is here on application for enforcement of the Board’s order. Respondent argues that the Board lacked jurisdiction to act against it because in doing so it applied the National Labor Relations Act to Puerto Rico and thereby violated the terms of the “compact” which defines Puerto Rico’s present political relationship with the federal government. Respondent also disputes the factual findings made by the Board. We find neither ground persuasive and grant the Board’s application.

The substantive claim presented by respondent challenges certain fact and credibility determinations made by the Administrative Law Judge and upheld by the Board. We need no citations for the proposition that credibility determinations are given great • respect by courts, which recognize that the fact finder is in the best position to evaluate the demeanor of the witness. And we find the questions raised about the documentary evidence in the hearing unconvincing as well as insignificant when the totality of the evidence is considered. Consideration of the whole record, particularly in light of the limited scope of review, convinces us that we must uphold the Board’s determination.

Respondent’s jurisdictional argument is a more significant, if no less clear cut, question. In NLRB v. Gonzalez Padin Co., 161 F.2d 353 (1st Cir. 1947), we found the National Labor Relations Act applicable to Puerto Rico. After Puerto Rico had achieved Commonwealth status the question of the continued applicability of the Act was presented to the National Labor Relations Board in Xavier Zequeira, 102 N. L.R.B. 874 (1953). In that case the Board held that the Act remained operative in the new Commonwealth. In Six-to Ortega, 110 N.L.R.B. 1917 (1954), the Board stated that it would thereafter apply the Act to Puerto Rico utilizing the same jurisdictional standards as are operative in applying the Act to the states, and respondent apparently concedes that this standard was adhered to in this case. -

The question of the power of the Congress to apply national legislation to Puerto Rico after 1952 is dealt with in Caribtow Corp. v. Occupational Safety and Health Review Commission, 493 F. 2d 1064, decided by us this day. In that case we found that laws of general applicability enacted after 1952 may be applied to Puerto Rico in conformity with Public Law 600, which established the legal framework for Commonwealth status, and which was adopted by the people of Puerto Rico “in the nature of a compact”. This ease presents a simpler issue. It has been held many times that laws in force prior to 1952 remained operative in Puerto Rico under the terms of section 9 of the Puerto Rican Federal Relations Act, which provides in pertinent part that, “The statutory laws of the United States not locally inapplicable, except as hereinbefore or hereinafter otherwise provided, shall have the same force and effect in Puerto Rico as in the United States . . . .” 48 U. S.C. § 734. Respondent does not claim that the National Labor Relations Act is “locally inapplicable” or that any exception to applicability to Puerto Rico has been provided. As was said in United States v. DeJesus, 289 F.2d 37, 40 (2d Cir. 1961), “it was not necessary for the Congress to alter specifically all outstanding statutes theretofore previously applicable in order to continue their effectiveness in Puerto Rico after it became a commonwealth in 1952.” Accord: Rodriguez Salgado v. United States, 277 F.2d 653 (1st Cir. 1960); Sanchez v. United States, 256 F.2d 73 (1st Cir. 1958); Moreno Rios v. United States, 256 F.2d 68 (1st Cir. 1958). See also Magruder, The Commonwealth Status of Puerto Rico, 15 U.Pitt.L.Rev. 1, 17 (1953).

Respondent contends that since Puerto Rico is not a “state” the Commerce Clause does not apply to it, and that since it is not a “territory” the Territorial Clause, Art. IV, section 3, clause 2, does not apply. From this premise it is further contended that since neither of these Constitutional grants of power to Congress applies to a “Commonwealth”, that Congress has no power to legislate concerning Puerto Rico. We think this argument places too much emphasis on labels and not enough on logic. What is determinative, as we say analogously in Caribtow, is that application of the National Labor Relations Act to Puerto Rico is consonant with the “compact”. One or both of these Constitutional provisions clearly underlies such Congressional action and thus clearly supports application of the Act to this case.

The order will be enforced.

      . The Administrative Law Judge found that respondent received more than $500,000 in insurance premiums during the calendar year, of which more than $50,000 was received from policies outside Puerto Rico. The company was also found to have received substantial amounts of reinsurance from outside of the Commonwealth and to have paid some $5,000 to beneficiaries outside of Puerto Rico.

      . Respondent notes that Puerto Rico has its own Labor Relations Act and asserts that the national and local acts cannot coexist. But in NLRB v. Gonzalez Padin Co., supra, we rejected a similar argument in 1947, and, in view of the fact that many states also have their own laws dealing with labor relations, we see no conflict or anomaly in the current situation.

      . See also Buscaglia v. Ballester, 162 F.2d 805 (1st Cir.), cert, denied, 332 U.S. 816, 68 S.Ct. 154, 92 L.Ed. 393 (1947), and discussion of this point in Caribtow.

        . Art. IV, section 3, clause 2 provides in part: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” See People of Puerto Rico v. Shell Co., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235 (1937).


text:
    William E. BOYD, Petitioner-Appellant, v. Henry E. COWAN, Respondent-Appellee.
    No. 73-1825.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 6, 1973.
    Decided March 13, 1974.

      John L. Wilson, Williamsburg, Ky., for petitioner-appellant; J. C. Traylor, Bowling Green, Ky., (Court-appointed), on brief.
    Robert L. Chenoweth, Asst. Atty. Gen., Frankfort, Ky., for respondent-ap-pellee ; Ed W. Hancock, Atty. Gen., Frankfort, Ky., on brief.
    Before PHILLIPS, Chief Judge and EDWARDS and MILLER, Circuit Judges.
   PER CURIAM.

This is an appeal from denial of appellant’s petition for a writ of habeas corpus without hearing, entered in the United States District Court for the Western District of Kentucky, at Bowling Green.

The critical questions argued on this appeal are whether petitioner was denied a right to appeal his state court conviction and denied the right to the effective assistance of counsel in perfecting an appeal. This issue was considered by the Kentucky State Court in a hearing under Kentucky Criminal Rule 11.42 and relief was denied under Kentucky law because at the time of his trial, appellant was represented by retained counsel. See Bartley v. Commonwealth, 463 S.W.2d 321 (Ky.1971).

It is clear however, that in this circuit there can be a finding of constitutional denial of a right to appeal by failure of retained counsel to perfect an appeal when the facts in the case impose a duty on him to do so. Woodall v. Neil, 444 F.2d 92 (6th Cir. 1971); Goodwin v. Cardwell, 432 F.2d 521 (6th Cir. 1970).

Under these circumstances this case is remanded to the United States District Court for the Western District of Kentucky, Bowling Green Division, for hearing as to whether appellant was unconstitutionally denied his right to appeal and his right to counsel in perfecting an appeal. In the context of this case, appellant’s right to appeal could have been denied either by refusal or neglect of the attorney in perfecting the appeal, or by his failure to make himself available to the appellant so that the merits of an appeal could be discussed and the appellant afforded an opportunity to make an informed decision. We think that the rule to be applied is that if the attorney is of the opinion that an appeal is frivolous or unwarranted, he has the duty to communicate such opinion to his client in a timely manner so that the client might either consult another attorney or call the matter to the attention of the court. The duty of an attorney to communicate with his client fully and promptly is particularly compelling when the latter is incarcerated.

The judgment of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion.


text:
    UNITED STATES of America, Plaintiff-Appellant, v. John A. LEININGER, Jr., Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. David L. SWARTZENTRUBER, Defendant-Appellee.
    Nos. 73-1961, 73-1962.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 1, 1974.
    Decided March 21, 1974.
    Robert Steinberg, Cincinnati, Ohio, for plaintiff-appellant; William W. Mil-ligan, U. S. Atty., Grayce M. Ruehlman, Asst. U. S. Atty., Cincinnati, Ohio, on brief.
    George T. Gareff, Columbus, Ohio, for defendants-appellees.
    Before PECK, MILLER and LIVELY, Circuit Judges.
   ORDER.

These two cases were argued and heard together since they involve essentially the same basic issue, i. e., the power of a United States District Court to dismiss a criminal indictment on its own motion.

In the Leininger case, the defendant was charged in a 3-count indictment with wilfully violating certain sections of the Internal Revenue Code, because of his failure to pay federal income taxes. The defendant, after arraignment proceedings on March 2, 1973, indicated to the court that his plan was to stand mute. The United States Attorney then moved orally that the defendant be committed to Springfield for examination pursuant to 18 U.S.C. Sec. 4244, to determine whether the defendant was mentally competent to stand trial or assist in his own defense. This motion was granted by the court from the bench. Thereafter, the court on its own motion entered a formal order on July 11, 1973, finding that (1) the charges made against this defendant in this indictment are unworthy of prosecution; (2) because of his psychotic condition the defendant should not be brought to trial; and (3) the interests of justice will best be served by dismissal of the charges. In accordance with these findings the indictment was dismissed.

We have examined the arraignment proceedings as reproduced in the government’s brief, which indicate that the court was probably justified in granting the government’s motion for commitment of the defendant to Springfield for mental evaluation. However, we find nothing in the record which would authorize the court to make the findings and adjudications on its own motion contained in its order of July 11, 1973. The right of a court to dismiss a criminal indictment on its own motion is limited to extreme circumstances which do not exist in the present case. Ordinarily, the decision to prosecute an indictment is one which rests with the prosecuting arm of government.

In the Swartzentruber case, the defendant was charged in an indictment with violating Title 50, Appendix, Sec. 462, U.S.C., in failing to comply with an order of his local draft board directing him to report to a hospital for civilian work in lieu of induction into the armed forces. At his arraignment on May 18, 1973, the defendant entered a plea of guilty which was subsequently withdrawn by the district court with directions that a plea of not guilty be entered. The defendant was released on his own recognizance with the court indicating that the case would be set for trial at a later date. However, on July 11, 1973, before trial under the indictment, the court, sua sponte, entered a formal order finding that (1) the charges made against this defendant are unworthy of prosecution; (2) because of his obviously deep religious beliefs this defendant should not be brought to trial; and (3) the interests of justice will best be served by dismissal of the charges. Except for the few statements made by the defendant at his arraignment, there is no support in the record for the court’s finding that the defendant entertained deep religious beliefs; nor is there any support for the court’s finding that the charge in the indictment is unworthy of prosecution, or that the interests of justice would best be served by dismissal of the charges. Under these circumstances, we think that the court was without authority to dismiss the indictment.

It is therefore ordered and adjudged that the district court’s orders dismissing the indictments in both the Leinin-ger case (No. 73-1961) and the Swartz-entruber case (No. 73-1962) be and the same are hereby vacated and both actions are remanded to the district court for further proceedings pursuant to the respective indictments.

      . Our disposition of these eases is limited to their own facts, as we are not required to reach the question whether a district court may not in some circumstances dismiss an indictment on its own motion,


author: WIDENER, Circuit Judge:

text:
    Staunton C. STONESTREET, Appellant, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Appellee.
    No. 73-1898.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 6, 1973.
    Decided March 20, 1974.
    Robert N. Bland for appellant.
    Ray L. Hampton, II, Asst. U. S. Atty. (John A. Field, III, U. S. Atty., on brief) for appellee.
    Before BRYAN, Senior Circuit Judge, and WINTER and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

This is an appeal from an action under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare (Secretary) which denied Stonestreet’s application for disability benefits. The district court granted the Secretary’s motion for summary judgment.

This is Stonestreet’s fourth application for disability benefits under § 216 (i) and § 223 of the Act, 42 U.S.C. § 416(i) and § 423. His application contains substantially the same allegations as the other three, which were denied and the denials affirmed by the Appeals Council. Denial of the third application was also affirmed by the district court (S.D.W.Va.) in May of 1965. In all four of his applications, Stonestreet alleges that he became unable to work in September, 1953, because of a back injury incurred in an automobile accident. In his current application, he also alleges that two doctors thought he had heart trouble.

The hearing examiner concluded that the doctrine of administrative res judi-cata did not apply to Stonestreet’s present application because of the change of standard for impairment wrought by the 1965 amendments to the Act. He then considered Stonestreet’s new evidence, found that it was cumulative, and denied his application. The district court concluded that administrative res judicata, should have barred claimant’s application, but, in any event, the trial examiner’s findings (which became those of the Secretary) were supported by substantial evidence. We affirm.

A full discussion of the doctrine of administrative res judicata as it applies in Social Security proceedings is found in Leviner v. Richardson, 443 F.2d 1338 (4th Cir. 1971). There we held that the doctrine in administrative proceedings does not have the same aura of rigid finality as in judicial proceedings, and that a prior Social Security determination should not be res judicata where new and material evidence is offered. In this case, the only new evidence of any consequence consisted of two new medical reports of a Dr. Kuhn, who had also submitted medical reports or testified concerning this claimant in each of the three prior hearings. The Secretary concluded that the new reports were merely cumulative and added nothing to the evidence considered previously. It is clear that the Secretary’s decision was supported by substantial evidence and, had it not been for the 1965 amendment to 42 U.S.C. § 416 (i), he would have held the application barred by the doctrine of administrative res judicata.

In all of one claimant’s prior applications, the Secretary concluded that Stone-street had failed to show impairments which would prohibit him from engaging in substantial gainful employment prior to September 30, 1958, the date on which he last met the earnings requirements for disability purposes. The 1965 amendment to 42 U.S.C. § 416(i) did not change this element of disability under the Act, but simply liberalized the time requirement by providing that such “inability to engage in substantial gainful employment” need last or “be expected to last for more than 12 months” rather than the previous requirement of a “long and indefinite duration.” We have previously held in an almost identical situation that where the claimant failed to establish that he had been unable to engage in substantial gainful activity at any time before the end of his insured status, the effect of the 1965 amendment need not be reached. Everett v. Secretary of HEW, 412 F.2d 842 (4th Cir. 1969). Thus, since the 1965 amendment is not reached, it would not preclude a finding of res judicata as to the first element of disability (that claimant be found unable “to engage in substantial gainful employment”). See James v. Gardner,. 384 F.2d 784 (4th Cir. 1967). The only question, then, which could properly have been before the district court, was whether there was new and material evidence as defined in Leviner in order to permit a reopening of the merits of the case. He applied the proper standard and found no such new and material evidence, and we agree. We are of opinion res judica-ta bars the plaintiff’s claim.

Parenthetically, we should say that the record indicates there is substantial evidence to support the finding by the Secretary of no disability within the meaning of the statute prior to September 30, 1958.

Affirmed.


text:
    UNITED STATES of America, Appellee, v. Douglas K. ROLLINGS, Appellant.
    No. 73-1818.
    United States Court of Appeals, Eighth Circuit.
    Feb. 25, 1974.
    Arthur Mack, Minneapolis, Minn., for appellant.
    Robert G. Renner, U. S. Atty., Minneapolis, Minn., for appellee.
    Before HEANEY, BRIGHT and ROSS, Circuit Judges.
   PER CURIAM.

Douglas K. Rollings was charged in an indictment that, having been previously convicted of a felony, he knowingly received a firearm in and affecting commerce in violation of 18 U.S.C. App. § 1202(a)(1). He entered a plea of not guilty and waived trial by a jury. The case was heard upon facts stipulated by Rollings and the Government, and Rollings was found guilty of the one count as charged in the indictment. Rollings appeals that conviction arguing, as he did before the district court, that the lower court’s decision, as well as the decisions of this Court, and the decision of the Supreme Court which construe and apply 18 U.S.C. App. § 1202, fail to consider the decision of the Supreme Court in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). We affirm the district court’s decision.

In Tot v. United States, supra, 319 U. S. at 466, 63 S.Ct. at 1241, the Supreme Court held that the section of the Federal Firearms Act (15 U.S.C. § 902(f)) which provided that it was unlawful for a convicted felon to receive a firearm “which ha[d] been shipped or transported in interstate or foreign commerce” was confined to the receipt of firearms as a part of interstate transportation and did not extend to the receipt, in an intrastate transaction, of such articles which, at some prior time, had been transported interstate. However, Tot dealt with a predecessor statute to 18 U.S.C. § 922(g) and (h), “a modified and recodified version of 15 U.S.C. § 902(e) and (f) (1964 ed.), 75 Stat. 757, which in turn amended the original statute passed in 1938, 52 Stat. 1250, 1251.” United States v. Bass, 404 U.S. 336, 343 n. 10, 92 S.Ct. 515, 520, 30 L.Ed.2d 488 (1971). This Court has recently held in a receiving and concealing case brought under 18 U.S.C. § 922(h) that “it is not sufficient ... to prove that the firearm had at some remote time previously traveled in interstate commerce.” United States v. Ruffin, 490 F.2d 557 (8th Cir. 1974).

In this case, however, Rollings was convicted under 18 U.S.C. App. § 1202(a)(1). In construing that statute, the Supreme Court said:

[W]e add a final word about the nexus with interstate commerce that must be shown in individual cases. The Government can obviously meet its burden in a variety of ways. . For example, a person “possesses . . . in commerce or affecting commerce” if at the time of the offense the gun was moving interstate or on an interstate facility, or if the possession affects commerce. Significantly broader in reach, however, is the offense of “receiv[ing] in commerce or affecting commerce,” for we conclude that the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce.

United States v. Bass, supra, 404 U.S. at 350, 92 S.Ct. at 524 (emphasis added). Thus, for a conviction under Section 1202(a), the Government need only establish that the firearm, sometime prior to its receipt by the defendant, traveled in or affected commerce. United States v. Bass, supra. See also United States v. Lupino, 480 F.2d 720, 723-724 (8th Cir. 1973); United States v. Glasgow, 478 F.2d 850, 851 (8th Cir. 1973); United States v. Mancino, 474 F.2d 1240, 1241-1242 (8th Cir.), cert, denied, 412 U.S. 953, 93 S.Ct. 3020, 37 L.Ed.2d 1007 (1973).

Among the stipulated facts before the district court in this case was:

3. The 9 mm Luger pistol received by the defendant was made in Germany by Mauser, and traveled from Germany to Minnesota sometime prior to the defendant’s receipt of the firearm in Minnesota.

“Commerce,” as defined by 18 U.S.C. App. § 1202(c)(1):

[m]eans travel, trade, traffic, commerce, transportation, or communication among the several States, or between any foreign country . . . and any State

Thus, the Government has demonstrated that the Luger received by Rollings previously moved in commerce. This establishes a significant nexus with interstate commerce.

The judgment of conviction is affirmed.


author: DUNIWAY, Circuit Judge: WRIGHT, Circuit Judge

text:
    Frieda KLINGEBIEL and Henry Klinge-biel et al., Plaintiffs-Appellants, v. LOCKHEED AIRCRAFT CORPORATION, a California corporation, Defendant-Appellee.
    No. 72-1160 .
    United States Court of Appeals, Ninth Circuit.
    Feb. 20, 1974.

      Wright, Circuit Judge, concurred specially with opinion.
    Jonathan J. Wilcox (argued), of Belli, Ashe, Ellison, Choulos & Lief, Robert L. Lieff, of Lieff, Alexander, Wilcox & Hill, San Francisco, Cal., for plaintiffs-appellants.
    Jacques E. Soiret (argued), Robert E. Moore, Jr., of Kirtland & Packard, Los Angeles, Cal., for defendant-appellee.
    OPINION
    Before DUNIWAY, HUFSTEDLER and WRIGHT, Circuit Judges.

       Together with appeals in the following cases :
      72-1161 through 72-1184 72-2716 through 72-2722 72-2793 through 72-2796 72-3191 through 72-3193 72-3065 72-3066.

   DUNIWAY, Circuit Judge:

These are diversity actions in which we are required to apply the law of California. All of them are actions for wrongful death of foreign nationals occurring abroad or elsewhere in the United States. The sole question presented is whether the district court was correct in applying the California Statute of Limitations.

In considering such a question, we apply two principles. The first is that the duty of the federal court is to ascertain and apply the existing California law, not to predict that California may change its law and then to apply the federal court’s notion of what that change might or ought to be. ****The proper fora in which to seek to change California law are the California legislature and the California courts, not the federal courts. Only when the question has not been decided in California do we have the doubtful privilege of “first guessing” what the California courts might do. This is not such a case. The second is that in doubtful cases, we defer to the judgment of the local judge, who knows at least as much about the law of his state as we do.

In these cases, District Judge Zirpoli, in a careful opinion, held that the California statute is applicable under California conflict of laws rules. Klingebiel v. Lockheed Aircraft Corp., D.C.N.D.Cal., 1974, 372 F.Supp. 1086.

We think that Judge Zirpoli is right and affirm for the reasons stated in his opinion.

Each of the judgments appealed from is affirmed.

WRIGHT, Circuit Judge

(concurring specially):

I concur in the result, but not for the reasons stated in the district court’s opinion. I believe that California’s new interest balancing approach to conflict of laws problems, announced in Reich v. Purcell, 67 Cal.2d 551, 63 Cal.Rptr. 31, 432 P.2d 727 (Cal.1967), was intended to be applicable alike to substantive and procedural choice of law problems. This conclusion is not based on a prediction that California will change its law to this effect but rather on a belief that the reasoning in Reich dictates it. I also believe that such a conclusion is dictated in this Circuit by Horton v. Jessie, 423 F.2d 722 (9th Cir. 1970).

Applying an interest balancing approach to the particular facts of this case, I conclude that California would apply its own statute of limitations and dismiss the action.

      . Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188.

      . Decisions of the California Courts of Appeal are to be followed by a federal court where the Supreme Court of California has not spoken on the question, “in the absence of convincing evidence that the highest court of the state would decide differently.” Stoner v. New York Life Ins. Co., 1940, 311 U.S. 464, 467, 61 S.Ct. 336, 338, 85 L.Ed. 284, and eases cited.

      . “. . . [T]he proper function of the . . . federal court is to ascertain what the state law is, not what it ought to be.” Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 497, 61 S.Ct. 1020, 1022, 85 L.Ed. 1477.

      . See, e. g., Turnbull v. Bonkowski, 9 Cir., 1969, 419 F.2d 104, 106, and cases cited; Hall v. United States, 9 Cir., 1969, 407 F.2d 849, 850, and cases cited; Ford v. International Harvester Co., 9 Cir., 1968, 399 F.2d 749, 752.

      . Under Erie R. Co. v. Tompkins, supra, California conflict of law rules are to be applied. Klaxon Co. v. Stentor Electric Mfg. Co., supra, 313 U.S. at 496, 61 S.Ct. 1020.

      . Judge Zirpoli stated that Horton v. Jessie, 9 Cir., 1970, 423 F.2d 722, “adopts a ‘significant contacts’ approach” in applying the California statute of limitations. Horton was not an attempt at an “authoritative revision of California law.” In Horton we did not reach the issue of whether or not the substance-procedure dichtomy was still viable in California. There was no need to do so because it was clear that regardless of the approach taken the California statute of limitations applied.


author: PER CURIAM:

text:
    Joe K. DEVITA, Plaintiff-Appellee, v. BURLINGTON NORTHERN, INC., successor in interest by merger to Great Northern Railway Company, Defendant-Appellant.
    No. 72-1776.
    United States Court of Appeals, Ninth Circuit.
    March 11, 1974.
    As Amended on Denial of Rehearing May 8, 1974.

      Lawrence D. Silvernale, (argued), Seattle, Wash., Hugh A. Dressel, Spokane, Wash., for defendant-appellant.
    William J. Powell, Spokane, Wash., for plaintiff-appellee.
    Before CHAMBERS and SNEED, Circuit Judges, and BURNS, District Judge.

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

   PER CURIAM:

The judgment of the district court setting aside the determinations of the National Railroad Adjustment Board, First Division, is reversed.

Devita, a locomotive' engineer, was discharged for alleged insubordination and inducing insubordination.

At issue is whether Devita took an appeal in time from the company superintendent to a higher official, the general manager. Devita says he did not get timely notice of the superintendent’s decision, so he could not take a timely appeal. The railroad says the notice was promptly mailed, and its general manager and its vice president so ruled.

When the case reached the Railroad Adjustment Board, it ruled that the notice was timely. The implication of the rulings are that Devita must have received the notice promptly.

If the question were properly before the courts and we had heard and seen the witnesses, we might have found the facts just as the district court did, i. e., no notice. But the right of courts to review the work of the Railroad Adjustment Board is very, very limited. See Brotherhood of R.R. Trainmen v. Chicago River & Indiana R.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957).

We are concerned with 45 U.S.C. § 153, First (m), as it read prior to 1966 and with the 1966 amendment.

We conclude that this procedural issue, on facts like the ones here, is simply left forever with the Board.

The main case cited by Devita, Gunther v. San Diego & Arizona E. Ry. Co., 382 U.S. 257, 86 S.Ct. 368, 15 L.Ed.2d 308 (1965), really undercuts his position.

Here in Devita’s case, the trial court made a de novo determination of fact. Some God in heaven may know that it was right and the board was wrong. But Congress does not seem to have committed to us the function of reviewing factual determinations on procedural steps, especially where there was some evidence to support the Board’s conclusion.

As we read the Act and its history, it seems rather clear that Congress thought that it ordinarily would be best to keep these cases within the Board and out of the courts, and that such a rule would usually be to the advantage of the aggrieved workman.

Here the thing cuts the wrong way for Devita.

      . In the intra-company process there were three steps: review by the superintendent who had notified Devita of his discharge; review by a general manager; and finally a review by a vice president. After the third step, the case went to the Board.

      . Devita was notified of his discharge on January 7, 1965. The superintendent’s notice of denial was dated February 18, 1965. On June 22, 1965, the general manager denied the claim on the basis of the 60-day limitation for appeal from the superintendent in the collective bargaining agreement. The general manager did not review the merits. On August 12, 1965, the vice president denied the claim again on the ground used by the general manager.
      On January 24, 1969, Devita filed Ms petition for a review with the National Railroad Adjustment Board. We do not understand the delay from 1965 to 1969, but the only time issue made anywhere as the case was en route is the delay on the appeal from the superintendent on the ruling of February 18, 1965.

      . Appellee’s brief makes an alternative contention that his union had a parallel appeal lodged with the railroad going for him and that the union submitted a timely notice of rejection of the superintendent’s disallowance of Devita’s claim. The union appeal, however, was quite clearly taken from the railroad’s denial of a claim for back wages for a portion of the period that Devita was suspended prior to his discharge. The NRAB’s implicit determination that this appeal did not preserve Devita’s claim for reinstatement was thus not wholly baseless.

      . Prior to 1966, § 153, First (m), provided that the Board’s awards “shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award.” Act of June 21, 1934, ch. 691, § 3, First (m), 48 Stat. 1189. The 1966 amendment to the Act deleted that provision and added a new subsection (q) which provides that the findings and orders' of the Board shall be conclusive on review, except that the order may be set aside or remanded “for failure of the division to comply with the requirements of this chapter, for failure of the order to conform, or confine itself, to matters within the scope of the division’s jurisdiction, or for fraud or corruption by a member of the division making the order . . . .” 45 U.S.C. § 153, First (q).

      . In Gunther, supra, the Supreme Court recognized that Congress did not favor judicial review of the Board’s decisions, and accordingly, the Court refused to expand the jurisdiction of the courts, even though the exception clause of § 153, First (m), as it read prior to the 1966 amendment to the Act, might have been construed as allowing such an expansion. The current language of § 153, First (m), cannot even arguably be interpreted as allowing exceptions beyond its plain language.

      . We do not consider whether the 1966 amendments were retroactive because we conclude that the law before 1966 and after 1966 did not permit the district court’s review in the area it acted.


text:
    Oscar E. COX, Plaintiff-Appellant, v. CHESAPEAKE OHIO RAILROAD COMPANY, a corporation, Defendant-Appellee.
    No. 73-1304.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov. 29, 1973.
    Decided March 14, 1974.
    Certiorari Denied June 17, 1974.
    See 94 S.Ct. 3184.

      Bruce H. Keidan, Keidan & Keidan, Southfield, Mich., for plaintiff-appellant.
    Robert A. Straub, Southfield, Mich., for defendant-appellee.
    Before CELEBREZZE and PECK, Circuit Judges, and McALLISTER, Senior Circuit Judge.
   PER CURIAM.

This is an appeal from a summary judgment entered in favor of defendant. Plaintiff sued his railroad employer under the Federal Employers’ Liability Act, 45 U.S.C. § 51, (hereinafter “F.E. L.A.”) for injuries sustained while performing voluntary overtime work as a wrecker in defendant’s Canadian operations. Normally, plaintiff worked in and around Detroit and did not, except on this one occasion, cross into Canada.

Defendant filed a motion to dismiss on the grounds that F.E.L.A. does not apply to railroad employees injured outside the territorial United States. After receiving briefs and hearing oral argument on this issue the District Court granted defendant’s motion to dismiss. Defendant-appellee defends this decision on the authority of New York Central R.R. Co. v. Chisholm, 268 U.S. 29, 45 S. Ct. 402, 69 L.Ed. 828 (1925). In Chisholm, a case strikingly similar on its facts to the one at bar, the Supreme Court, after noting that the “case presents nothing beyond a question of construction,” held that F.E.L.A. does not have extraterritorial effect. 268 U.S. at 31, 45 S.Ct. at 402.

Plaintiff-appellant argues that Chisholm does not stand for the proposition that Congress did not intend F.E.L.A. application for railroad employees injured while temporarily working outside the United States, but rather that the decision reflected contemporary conflicts of law principles that stressed lex loci delictus theories. Appellant further asserts that conflicts of law principles have undergone profound changes since 1925, and that under currently accepted theories, variously known as “significant contacts,” “significant relations” or “governmental interests” tests, United States law (in this case F.E.L.A.) would be applied.

While it is true, as appellant asserts, that a number of federal and state courts have begun to reject the lex loci delictus test method of determining applicable law, Chisholm remains a firm restriction on the extra territorial application of F.E.L.A. Indeed, the Supreme Court apparently added to this resolve in Lauritzen v. Larsen, 345 U.S. 571, 581, 73 S.Ct. 921, 927, 97 L.Ed. 1254 (1952), wherein it stated that, “[w]e have held [F.E.L.A.] not applicable to an American citizen’s injury sustained in Canada while in service of an American /employer.” Appellant has failed to demonstrate any reasonable basis for our holding that the Supreme Court has abandoned the Chisholm decision, however desirable such a course may be.

The District Court correctly determined that it lacked jurisdiction over this case:

The judgment of the District Court is affirmed.

      . Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); Romero v. Int’l Term. Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959); Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1952) (Jones Act); McClure v. United States Lines Co., 368 F.2d 197 (4th Cir. 1966); Tramontana v. S. A. Empresa De Viacao Aerea Rio Grandense, 121 U.S.App. D.C. 338, 350 F.2d 468 (1965).

      . Reich v. Purcell, 67 Cal.2d 551, 63 Cal. Rptr. 31, 432 P.2d 727 (1967); Wilcox v. Wilcox, 26 Wis.2d 617, 133 N.W.2d 408 (1965); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963).


author: PER CURIAM. McCREE, Circuit Judge

text:
    Gary Lee ETHRIDGE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-1678.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov. 28, 1973.
    Decided March 21, 1974.
    MeCree, Circuit Judge, filed concurring opinion.
    Glenn Zell, Atlanta, Ga., for petitioner ; Gary Lee Ethridge, pro se, on brief.
    Martha Johnson, Asst. U. S. Atty., for respondent; Charles H. Anderson, U. S. Atty., Nashville, Tenn., on brief.
    Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.
   PER CURIAM.

Petitioner, who was convicted on a variety of counts, including first degree murder, after a lengthy trial before the United States District Court for the Middle District of Tennessee, Nashville Division, and whose conviction we affirmed in 424 F.2d 951 (6th Cir. 1970), cert, denied, 400 U.S. 993, 91 S.Ct. 463, 27 L.Ed.2d 442 (1971), now appeals from denial by a Judge of that court of his motion to vacate sentence under 28 U.S.C. § 2255 (1970).

The complaint pertains to his contention that two counts upon which he was convicted were counts which should have been regarded as merged, since one concerned the robbery of the Bordeaux Bank and the other possession of money taken in that robbery. He relies upon Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961).

As a discretionary matter, we decline to consider this issue. See Barnes v. United States, 412 U.S. 837, 848 n.16, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). The Supreme Court has indicated, “The concurrent sentence rule may have some continuing validity as a rule of judicial convenience.” Benton v. Maryland, 395 U.S. 784, 791, 89 S.Ct. 2056, 2061, 23 L. Ed.2d 707 (1969). In Barnes v. United States, supra, it very recently squarely employed the concurrent sentence rule.

We can think of few circumstances where the rule can be more aptly applied than here. Appellant was convicted upon four counts with the sentences shown below:

Count 8 — murder to avoid apprehension for bank robbery — 50 years.

Count 1 — conspiracy to commit bank robbery and murder — 5 years.

Count 2 — bank robbery — 20 years.

Count 3 — possession of the proceeds of a bank robbery — 10 years.

All of these sentences are concurrent. The 50-year sentence is not under attack. We can think of no set of circumstances where there could be meaningful collateral effects of the sentences he now attacks. See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Benton v. Maryland, supra.

The judgment of the District Court is affirmed.

McCREE, Circuit Judge

(concurring).

I concur because appellant makes no claim that adverse collateral effects may result from the sentences that' he challenges here. I do not agree, however, that there exist no circumstances under which possible adverse consequences might be demonstrated.

      . Its classical application is found in Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943).


author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    Patricia J. SWAB, Appellant, v. The CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT, a municipal corporation, et al., Appellees.
    No. 73-1864.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 14, 1974.
    Decided April 11, 1974.
    Robert C. Nelson, Cedar Rapids, Iowa, for appellant.
    David S. Good, Cedar Rapids, Iowa, for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.
   VAN OOSTERHOUT, Senior Circuit Judge.

The primary issue raised by the plaintiff on her timely appeal is whether the hearing procedures required by the Code of Iowa, § 279.13 (1973), and as followed by the defendant school board are sufficient to satisfy the requirements of procedural due process.

Plaintiff was employed as a teacher by defendant Cedar Rapids Community School District from 1947 to 1973. Iowa has no teacher tenure law. The procedure for terminating the contracts of teachers is set out in § 279.13.

The procedural due process issue was by the agreement of the parties submitted to the court (Judge McManus) upon facts stipulated by the parties at pretrial conference and upon briefs. Judge McManus found the plaintiff had been accorded procedural due process and provided by his order of September 25, 1973, that unless plaintiff notified the court by October 8, 1973, that she desired to pursue her substantive due process claim the action would be dismissed. No such notice having been given, a final order of dismissal was entered on October 12,1973.

The trial court recognized that no teacher tenure rights exist in Iowa and held that the termination of a teacher’s contract by nonrenewal is permitted only after granting the procedural rights to a conference and a hearing, accompanied by “written statement of specific reasons” as provided by statute. The court specifically found “both the private conference and a public hearing were granted plaintiff pursuant to the statute and the Board substantially followed the requirements of Section 279.13.” Such finding is supported by substantial evidence ; the parties so stipulated.

The court also based plaintiff’s right to procedural due process on federal constitutional grounds. The parties stipulated that plaintiff makes no claim that she was terminated on the basis of race, religion or the exercise of her first amendment rights. Inasmuch as it is clear that § 279.13 provides the plaintiff with procedural due process, we need not and do not reach the issue of whether in the absence of the state statute a teacher must be granted procedural due process upon the termination of her contract. See Scheelhaase v. Woodbury Central Community School District, 488 F.2d 237 (8th Cir. 1973).

We shall, briefly respond to points raised by plaintiff. She contends that she was not advised in sufficient detail with respect to the cause for her termination and was not advised of the names of witnesses to be used against her and the nature of their testimony. Plaintiff was represented by counsel of her own choosing at both the private conference with the board and at the public hearing. At the private conference plaintiff declined an opportunity afforded her to confront the school principal and his assistant. Plaintiff knew the principal and the assistant were the moving forces in her dismissal. They were the principal witnesses who testified against her at the public hearing. Plaintiff had a full opportunity to cross examine the witnesses testifying against her and to offer witnesses on her own behalf. Plaintiff has made no showing that she was surprised by the witnesses used against her or the testimony they offered. She made no effort to obtain a continuance for the purpose of meeting any testimony offered against her. We agree with the trial court that both the private conference and the public hearing met the requirements of § 279.13 and afforded plaintiff procedural due process.

Plaintiff contends the board was biased in that they voted following the private conference to institute proceedings to terminate plaintiff’s contract and thus had pre-judged the termination issue before the public hearing. The board by the statute, as a step in the contract termination procedure, was required to determine whether notice of termination of a teacher’s contract shall be given. If the teacher requests a public hearing, as she did, a public hearing must be held. At the conclusion of the public hearing, the board is required to vote on the termination of the teacher’s contract. All the board did here was to follow the termination procedure prescribed by § 279.13.

In answering a similar contention the Second Circuit in Simard v. Board of Education of Town of Groton, 473 F. 2d 988, 993 (2d Cir. 1972), held:

The constitutional rule sought here would require that decisions as to teacher competence be surrendered to a body less familar with relevant considerations and not responsible, under state and local law for making such decisions. Moreover, it is unrealistic to require a Connecticut town to provide more than one body to deal with various aspects of school administration. We do not believe that due process, varying as it does with differing factual contexts, requires so much in this case, absent a showing of actual, rather than potential, bias.

We agree with such holding. See Wilson v. Lincoln Redevelopment Corp., 488 F.2d 339, 342-43 (8th Cir. 1973).

No personal bias on the part of any member of the school board has here been shown. Plaintiff has failed to demonstrate that she has been denied procedural due process.

Plaintiff, although afforded an opportunity to pursue the issue of substantive due process, elected not to do so and hence such issue is not before us.

The judgment of dismissal is affirmed.

      . Section 279.13 provides that teachers’ contracts shall not be for more than a period of one school year and that existing contracts will be automatically renewed for a like period unless terminated by mutual consent or in accordance with the provisions of the statute reading:
      V V 'í» •I'
      [T]he board may by a majority vote of the elected membership of the board, cause said contract to be terminated by written notification of termination, by a certified letter mailed to the teacher not later than the tenth day of April; provided, however, that at least ten days prior to mailing of any notice of termination the board or its agent shall inform the teacher in -writing that (1) the board is considering termination of said contract and that (2) the teacher shall have the right to a private conference with the board if the teacher files a request therefor with the president or secretary of the board within five days; and if within five days after receipt by the teacher of such written information the teacher files with the president or secretary of the board a written request for a conference and a written statement of specific reasons for considering termination, the board shall, before any notice of termination is mailed, give the teacher written notice of the time and place of such conference and at the request of the teacher, a written statement of specific reasons for considering termination, and shall hold a private conference between the board and teacher and his representative if the teacher appears at such time and place. * * * In event of such termination, it shall take effect at the close of the school year in which the contract is terminated by either of said methods. The teacher shall have the right to protest the action of the board, and to a hearing thereon, by notifying the president or secretary of the board in writing of such protest within twenty days of the receipt by him of the notice to terminate, in which event the board shall hold a public hearing on such protest at the next regular meeting of the board, or at a sj)ecial meeting called by the president of the board for that purpose, and shall give notice in writing to the teacher of the time of the hearing on the protest. Upon the conclusion of the hearing the board shall determine the question of continuance or discontinuance of the contract by a roll call vote entered in the minutes of the board, and the action of the board shall be final. The foregoing provisions for termination shall not affect the power of the board of directors to discharge a teacher for cause under the provisions of section 279.24.