author: CARTER, Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Paul S. COOPER, Defendant-Appellant.
    No. 9-6.
    Temporary Emergency Court of Appeals,
    Aug. 30, 1973.

      Robert N. Harris, Jr., Los Angeles, Cal. (Karl K. Ransom, Los Angeles, Cal., with him on the brief), for defendant-appellant.
    David H. Fox, Asst. U. S. Atty., Los Angeles, Cal. (William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., with him on the brief), for plaintiff-ap-pellee.
    Before CARTER, VAN OOSTER-HOUT and CHRISTENSEN, Judges.
   CARTER, Judge.

The defendant Paul S. Cooper appeals from a judgment of convictions entered by the District Court for the Cental District of California on October 2, 1972. The crucial question facing this court, the Temporary Emergency Court of Appeals (hereafter T.E.C.A.), is whether or not we have jurisdiction over the appeal.

Cooper was charged in a ten-count indictment with violations of 18 U.S.C. §§ 371 and 1001, and 6 C.F.R. §§ 301.101, 301.502(f), 301.601 and 301.602. The events leading up to these charges occurred in late 1971 and early 1972, during which time Cooper, an owner of apartment units in Los Angeles, allegedly violated rent controls by raising his rent from $75 per month to $92 'per month.

On three separate occasions — on December 27, and 30, 1971, and on January 18, 1972 — agents of the Internal Revenue Service warned Cooper about illegal rent increases. Apparently the warnings went unheeded, for Cooper’s rents on twenty-four units were raised.

On March 22, 1972, an agent of the Internal Revenue Service served Cooper with a notice of violation regarding rent increases. According to the testimony of a Mrs. Harris, who operated the apar-ments as manager, Cooper told her on that same day to demand signed statements from several old tenants that no rents had been raised. Mrs. Harris further testified that Cooper instructed her to threaten these tenants with eviction notices if they refused. Four out of five tenants signed the statements.

Cooper then wrote to an Internal Revenue Service agent indicating that such statements had been signed and enclosing copies. He further represented that, although rents had not been raised, the tenants had begun paying an additional $17 for maid service, telephone service, and message service; and that therefore only $75 of the overall monthly payments of $92 was for rent.

On the basis of these events, the ten-count indictment was brought against Cooper and he was tried to the court.

Count 2 charged Cooper with a conspiracy under 18 U.S.C. § 371. A judgment of acquittal was entered on this count.

Count 3 charged a violation of 6 C.F. R. §§ 301.601 and 301.602 by failure to keep rent records and make them available for inspection. On this count the court found Cooper not guilty.

Counts 5, 6, 7, 8, 9 and 10 charged unlawful rent increases under 6 C.F.R. § 301.101, a regulation promulgated pursuant to the Economic Stabilization Act Amendments of 1971 (hereafter the Stabilization Act). On these six counts the court found Cooper civilly liable but not criminally liable. Apparently the court found that rents had in fact been illegally raised, but that the violations were not willful and thus not criminal.

Count 4 charged Cooper with taking retaliatory actions against his tenants in violation of 6 C.F.R. § 301.502(f). On this count he was found guilty.

Count 1 charged Cooper with willfully and knowingly making false representations about material facts within the jurisdiction of the Department of the Treasury, the Internal Revenue Service and the Price Commission. This is a felony under 18 U.S.C. § 1001. On this count the court found Cooper guilty.

Because the court found Cooper had committed both civil and criminal wrongs, two judgments were entered separately. On September 1, 1972, a judgment on Counts 5, 6, 7, 8, 9 and 10 was filed, imposing a civil penalty of $2,500 on each count for a total of $15,000 and providing that the United States had a judgment against Cooper for that amount. Then on October 2, 1972, the judgment of conviction on the criminal counts was entered, providing that “the imposition of sentence on Counts 1 and 4 is suspended and the defendant placed on probation for a period of one (1) year upon the condition that the defendant pay within one year the civil penalty heretofore imposed herein.”

At this time Cooper took steps which ultimately brought this case to the T.E. C.A. On October 12, 1972, he filed a notice of appeal with the Clerk of the United States District Court. It read:

“Defendant, Paul S. Cooper, hereby appeals from the judgment of conviction entered in the above entitled case on October 2, 1972.
“Defendant was placed on probation for the term of one year upon condition that civil penalties in the total amount of $15,000 be paid within a period of one year and probation to terminate upon payment of the penalties.”

No notice of appeal was ever filed from the civil judgment of September 1, 1972, except insofar as the notice of appeal on October 12 might be considered a notice of appeal from that civil judgment as well as from the criminal judgment.

No notice of appeal from either the civil or criminal judgment was filed within 30 days with the Clerk of the T. E.C.A., as required by § 211(b)(2) of the Stabilization Act and by Rule 16(a) of the T.E.C.A.

Thus Cooper followed standard procedures for appealing the judgment of October 2, 1972, to the Ninth Circuit Court of Appeals, but did not take the prescribed steps for appealing that judgment to the T.E.C.A. As regards the September 1, 1972, civil judgment, he did not file an express notice of appeal to either court.

When Cooper gave notice of appeal from the judgment of October 2, 1972, the district court, in its customary manner, forwarded the notice and the record to the Clerk of the Ninth Circuit.

On March 23, 1973, the Ninth Circuit Court of Appeals, by order of a motions panel, transferred the entire appeal to the T.E.C.A. for all further proceedings, on the grounds that “the appeal was improvidently taken to this court and that sole and exclusive jurisdiction to review the matter is vested by statute in the Temporary Emergency Court of Appeals, established by the Economic Stabilization Act of 1970, as amended; that the purported appeal should not be dismissed, but the entire matter, including the record, briefs, etc., should be transferred from this court to said Temporary Emergency Court of Appeals.”

The questions presented to us are:

(1) Was the conviction on Count 1 (18 U.S.C. § 1001) a ease or controversy arising under the Stabilization Act or regulations or order issued thereunder ?
(2) Does the T.E.C.A. have jurisdiction on the appeal from the conviction on Count 1, or is jurisdiction on that appeal vested exclusively in the Court of Appeals for the Ninth Circuit?
(3) Did the Court of Appeals for the Ninth Circuit have power or authority to transfer the entire case or any part thereof to the T.E.C.A.?
(4) What disposition should the T. E.C.A. make of this appeal?

Jurisdiction Over the Appeal From the Conviction on Count 1

The district court clearly had jurisdiction of all counts of the indictment. Section 3231, Title 18 reads: “The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States. .” And Section 211(a) of the Stabilization Act provides that “[t]he district courts of the United States shall have exclusive original jurisdiction of cases or controversies arising under this title, or under regulations or orders issued thereunder ...”

There was no impropriety in the joinder of the various counts of the indictment. Rule 8(a) of the Fed.Rules of Crim.Proc. provides:

“Two or more offenses may be charged in the same indictment or information in a separate count for each offense, if the offense charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”

Under Rule 13 of the Fed.Rules of Crim.Proc. an indictment charging only the violation of 18 U.S.C. § 1001 and a separate indictment charging the offenses under the Stabilization Act -could have been joined for trial.

Our real problem concerns the respective jurisdiction of the Court of Appeals for the Ninth Circuit and the T.E.C.A. The jurisdiction of the courts of appeals is created primarily by 28 U. S.C. § 1291, which reads:

“The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . except when a direct review may be had in the Supreme Court.”

The jurisdiction for the T.E.C.A. is created by Section 211(b)(2) of the Stabilization Act, which provides:

“Except as otherwise provided in this section, the Temporary Emergency Court of Appeals shall have exclusive jurisdiction of all appeals from the district courts of the United States in cases and controversies arising under this title or under regulations or orders issued thereunder. JJ

We do not believe that the charge in Count 1, based on 18 U.S.C. § 1001, arises within the appellate jurisdiction of the T.E.C.A. We start with the premise that a conviction under 18 U.S. C. § 1001 would be appealable only to a court of appeals, under 28 U.S.C. § 1291, unless the Stabilization Act provides otherwise. We find nothing in Section 211(b)(2) of the Act which so provides. Section 211(b)(2) speaks of “controversies arising under this title or under regulations or orders issued thereunder.” We do not think that Count 1, being based on 18 U.S.C. § 1001, was a controversy “arising under” any title of the Stabilization Act or under regulations or orders issued thereunder.

Count 1 (see n. 2) properly charged that the false representations set forth therein concerned material facts “within the jurisdiction of the Department of the Treasury, the Internal Revenue Service and the Price Commission.” Even though this allegation followed the language of 18 U.S.C. § 1001, an argument has been made that the offense nevertheless arose under the Stabilization Act as provided in Section 211(b)(2). Such an argument is unsound. Although Count 1 involved a matter within the perimeter of activities assigned to, and carried on by, the Price Commission, nowhere does the Stabilization Act provide for a crime such as set forth in 18 U.S.C. § 1001.

The language in the Stabilization Act, “in cases and controversies arising under this title,” would require a loose construction in order to cover the charge in Count 1 of false representations on matters of rent control. Such a loose construction is unacceptable in light of the traditional rule that courts of special jurisdiction should strictly construe their statutory grants of jurisdiction.

Moreover, there is no indication that Congress intended to include existing offenses, already covered by Title 18, under the umbrella of the Stabilization Act. There was surely no need for such double coverage. The ordinary criminal statutes remain available to the prosecutor, and in fact the prosecutor in this case used such statutes in the indictment against Cooper.

We therefore hold that the charge in Count 1, based on 18 U.S.C. § 1001, was not a case or controversy arising under the Stabilization Act.

We hold further that the Court of Appeals for the Ninth Circuit had jurisdiction of the appeal from the conviction on Count 1 and that the notice of appeal was timely filed.

The Transfer of the Appeal by the Ninth Circuit

The next question presented is whether the Court of Appeals for the Ninth Circuit, having jurisdiction over the appeal on Count 1, as shown supra, had any jurisdiction over the counts arising under the Stabilization Act which enabled it to transfer part or all of the appeal to this court.

The action of the Ninth Circuit raises two inquiries: (1) Was there some sort-of pendent jurisdiction over the Stabilization Act counts permitting the transfer of the whole case or of the counts based on the Stabilization Act; and, if not, (2) were there unique circumstances which nonetheless permitted the transfer of the whole case or the counts based on the Stabilization Act?

The Court of Appeals had exclusive jurisdiction of the appeal on Count 1. No valid transfer of that part of the appeal could be made to this court; there is no authority for the argument that the doctrine of pendent jurisdiction would allow such a transfer to occur. The doctrine applies in civil cases. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966) states that pendent jurisdiction may exist in the civil context whenever claims arise under both federal and state claims and “. . . the relationship . . . permits the conclusion that the entire action comprises but one constitutional case.” The Supreme Court noted that the federal and state claims were derived “. . . from a common nucleus of operative facts.” It concluded that the doctrine was discretionary and “. . . [i]ts justification lies in consideration of judicial economy, convenience and fairness to litigants.” (p. 726, 86 S.Ct. p. 1139). But in view of the lack of authority for an application of the doctrine in criminal cases, we hold the doctrine is not applicable here.

Another basis supports our holding that the T.E.C.A. does not have jurisdiction over the appeal on Count 1. We first note the limited sanctions contained in the Stabilization Act.

Section 208 of the Stabilization Act reads:

“§ 208: Sanctions; criminal fine and civil penalty
“(a) Whoever wilfully violates any order or regulation under this title shall be fined not more than $5,000 for each violation.
“(b) Whoever violates any order or regulation under this title shall be subject to a civil penalty of not more than $2,500 for each violation.”

Thus it was clearly the congressional intent that the criminal offenses created by the Stabilization Act would carry only the criminal sanction of a fine not exceeding $5,000 and a civil penalty. Imprisonment was not provided as a sanction.

On the other hand, the statutory provision on which Count 1 was based, 18 U.S.C. § 1001, provides for imprisonment, for one to ten years, and allows a fine of up to $10,000. Under general federal law a crime is a felony if a convicted defendant could be sentenced to a penitentiary for at least one year, regardless of what the actual sentence provides. Thus a violation of 18 U.S.C. § 1001 is a felony, even if the defendant, like Cooper, is given probation.

In the district court the TJ. S. Attorney joined felony counts under Title 18 with less serious counts under the Stabilization Act. As noted above, such joinder is permissible. But on appeal from the judgment, the joinder presents problems. Congress gave the T.E.C.A. appellate jurisdiction on convictions for violations of the special offenses of the Stabilization Act; Congress has not chosen to give the T.E.C.A. appellate jurisdiction over felony convictions under Title 18. Congress certainly did not contemplate that the T.E.C.A., a court of special competence, would expand its jurisdiction beyond the bounds fixed by the Stabilization Act.

The proper procedure below would have been the filing of two notices of appeals, one to the Court of Appeals for the Ninth Circuit as to the conviction on Count 1, and one to the T.E.C.A. as to the judgments on counts under the Stabilization Act. The fact that two records on appeal would be required', one for each court, cannot justify expanding the jurisdiction of the T.E.C.A. The extra work involved for the appellant in preparing two records is a simple burden that should not control our interpretation of the Act.

Since Counts 4, 5, 6, 7, 8, 9 and 10 arise under the Stabilization Act, we must decide whether we may still have jurisdiction on these counts. Over fifteen months elapsed between the filing of the notice of appeal in the district court and the transfer of the entire appeal to the T.E.C.A. on March 23, 1973. On March 26, 1973, by order of Chief Judge Tamm of the T.E.C.A., the transfer order was treated as a notice of appeal to the T.E.C.A. We are satisfied that Chief Judge Tamm merely treated the transfer as a notice of appeal out of time. The effect of his order was merely to have the record show a filing of a notice of appeal to the T.E.C.A. without deciding the effect of its untimeliness. That decision is one that we must now make.

Two Supreme Court cases, Thompson v. I. N. S., 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964), and Harris Truck Lines v. Cherry Meat Packers, 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962), provide insight as to the effect of untimely appeals when there exist “unique circumstances.” The basic holding in these cases is that, if at a time when a party might take a timely appeal, he receives assurances from the district court that he need not appeal [Thompson], or that the time for appeal is extended [Harris], then he should not lose his right to appeal where the district court was in fact mistaken. But in our case the appellant Cooper was in no way misinformed or misled by the district court. Thus the cases above are inapposite.

On the other hand, in Reed v. Kroger, 478 F.2d 1268 (T.E.C.A.1973) (per cur-iam), we held that a notice of appeal, mistakenly filed in the district court with reliance on the district clerk’s assistance, required dismissal.

The general rule is that the necessity for filing of a timely notice of appeal is mandatory and jurisdictional. United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960). Since Cooper failed to file a timely appeal with the T.E.C.A., we have no jurisdiction on the counts arising under the Stabilization Act.

Disposition

Our disposition in the case is as follows :

The Ninth Circuit clearly had jurisdiction over Count 1. Its action in transferring that count along with the rest of the case to our court was beyond its power and was void.. Since the order transferring that count was void, we need make no order transferring that count back to the Ninth Circuit. Accordingly, the Ninth Circuit still has jurisdiction over the appeal from Count 1. The Clerk of the T.E.C.A. is directed to return the record to that court.

As to the remaining counts arising under the Stabilization Act, a notice of appeal to the Ninth Circuit Court of Appeals was not a proper notice of appeal. The Stabilization Act and rules of the T.E.C.A. clearly state that appeals must be taken to this court within the thirty-day period. Since no proper appeal has been taken to this court, and since even if the Ninth Circuit’s transfer order is treated as a notice of appeal, it was untimely, the appeal from the counts based on the Stabilization Act is dismissed.

      . P.L. 92-210, 92nd Congress, S. 2891, December 22,1971, 85 Stat. 743.

      . “On or about March 31, 1972, in Los An-geles County, -within the Central District of California, after receiving a notice of violation of the Rent Stabilization Regulations of the Economic Stabilization Program, defendant PAUL S. ' COOPER did willfully and knowingly make and cause to be made false and fraudulent statements and representations concerning a material fact within the jurisdiction of the Department of the Treasury, the Internal Revenue Service, and the Price Commission, departments or agencies of the United States, by submitting and causing the submission to the Internal Revenue Service of a letter and tenant certificates regarding defendant’s purchase and operation of an apartment house located at 6075 Franklin Avenue, Hollywood, California, which falsely and fraudulently stated and represented the following, as the defendant then and there well knew: That rents had not been raised in the last six months; that the tenants were paying $75.-00 per month rent and $17.00 per month for maid service, phone answering service, and message service; that these services were requested by the tenants effective January 1, 1972; and that the tenants had no complaints about their rentals whatsoever. Said, false and fraudulent statements and representations were submitted by the defendant in an attempt to trick and deceive the Internal Revenue Service into believing that he had not unlawfully raised any rents at the Franklin Avenue apartment house; and that his actions were in full compliance with the rent regulations of the Economic Stabilization Program.
      All in violation of Title 18, United States Code, Section 1001.”

      . Section 211(b)(2) of the Stabilization Act provides: “Except as otherwise provided in this section, the Temporary Emergency Court of Appeals shall have exclusive jurisdiction of all appeals from the district courts of the United States in cases and controversies arising under this title or under regulations or orders issued thereunder. Such appeals shall be talcen by the filing of a notice of appeal with the Temporary Emergency Court of Appeals within thirty days of the entry of judgment by the district court." (Emphasis added.)

      . “A notice of appeal in any civil or criminal case arising under the Economic Stabilization Act of 1970 as amended by the Economic Stabilization Act Amendments of 1971, P.L. 92-210, 85 Stat. 748-50, or a motion for injunctive relief as provided by Section 211(e) (2) of such Act as amended, shall be filed with the cleric of this court within SO days of the entry of judgment by the district court. This time limitation shall be binding upon both government appeals and private appeals. If submitted by mail a notice of appeal shall be deemed filed as of the date postmarked by the United States Postal Service.” (Emphasis added.)

      . “18 U.S.C. § 1001. Statements or entries generally
      Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and wilfully falsifies, conceals or covers up by any trick, scheme, or device a matei’ial fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

      . Nothing in the congressional history of the Stabilization Act indicates such a purpose or effect.

      . Gratuitously we state that although we dismiss the appeal from the counts based upon the Stabilization Act, we have, nevertheless, reviewed defendant’s contentions, and had the appeal been properly taken as to these counts, we would have held the contentions of the defendant to be without merit.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DELAWARE VALLEY APARTMENT HOUSE OWNERS ASSOCIATION et al., Appellants, v. UNITED STATES of America et al., Appellees.
    No. 3-2.
    Temporary Emergency Court of Appeals.
    Feb. 12, 1973.
    Herbert A. Fogel, Philadelphia, Pa. (Andrew Elash, Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, Pa., on the brief), for appellants.
    Robert E. Easton, Washington, D. C. (Harlington Wood, Jr., Washington, D. C. , Robert E. J. Curran, Philadelphia, Pa., and William E. Nelson, Washington, D. C., on the brief), for appellees.
    Leonard B. Sand, Washington, D. C., Steven M. Goldman, Denver, Colo., of counsel, Robinson, Silverman, Pearce, Arsonsohn, Sand & Berman, Washington, ■D. C., on the brief of the National Realty Committee, Inc., and the National Assn, of Home Builders filed a brief, amicus curiae.
    Before HASTIE, ANDERSON and HASTINGS, Judges.
   PER CURIAM.

This suit by. Delaware Valley Apartment House Owners Association seeks to restrain the government from enforcing Price Commission Regulation 301.208, 6 C.F.R. § 301.208, which undertakes to control the imposition of certain rent increases in excess of 8 per cent. It is complained that the regulation exceeds the authority delegated by Congress and that it invidiously discriminates against certain landlords and deprives them of their “inherent right of contract.”

After the facts had been stipulated, the district court entered judgment for the defendant. This appeal followed.

In an elaborate opinion the district court considered and rejected each of the appellant’s legal arguments. Delaware Valley Apt. House Owners Assn. v. United States, E.D.Pa., decided Oct. 12, 1972, 350 F.Supp. 1144. We find no essential error in the district court’s disposition of any of the appellants’ contentions.

The judgment is affirmed.


author: ESTES, Judge.

text:
    WESTERN STATES MEAT PACKERS ASSOCIATION, INC., Plaintiff-Appellant, v. Dr. John DUNLOP, Director, Cost of Living Council, et al., Defendants-Appellees.
    No. 9-8.
    Temporary Emergency Court of Appeals.
    Sept. 1, 1973.

      Merle D. Cohn and Kenneth A. MacDonald, Seattle, Wash., for plaintiff-appellant.
    Paul T. Michael, Atty., Dept, of Justice, Washington, D. C. (Irving Jaffe, Acting Asst. Atty. Gen., William E. Nelson, Stanley D. Rose, John N. Hanson, Attys., Dept, of Justice, Washington, D. C., with him on the brief), for the Government appellee.
    Before CARTER, CHRISTENSEN and ESTES, Judges.
   ESTES, Judge.

This is an appeal under Section 211 of the Economic Stabilization Act of 1970, as amended (the Act), by plaintiff, Western States Meat Packers Association, Inc., from an order of the United States District Court for the Western District of Washington denying plaintiff preliminary injunctive relief prohibiting the enforcement of Executive Orders and Cost of Living Council (CLC) temporary meat price ceiling regulations. In addition, the district court has, pursuant to § 211(e) of the Act, certified to this court three constitutional issues.

On March 29, 1973, the CLC issued Subpart M of its Regulations as “Temporary Meat Price Ceilings,” which established ceilings on the prices which could be charged or paid for most meat.

On June 13, 1973, the President issued Executive Order 11723, providing for a comprehensive freeze for a period of 60 days on the prices of all commodities and services offered for sale except the prices for raw agricultural products. On June 15, the CLC promulgated its “Freeze Regulations” (6 C.F.R. Part 140) to implement Executive Order No. 11723.

On July 19, 1973, the President issued Executive Order No. 11730 and the CLC promulgated its “Special Price Rules for Food,” effective from July 18 to September 12, 1973 (6 C.F.R. 140.91-140.-99). This Executive Order and these CLC regulations, among other things, lifted the ceilings on prices charged or paid for most meat, except beef, and made it permissible to charge or pay a price for any meat item derived from swine or sheep above the ceiling price for that item so long as that increased price does not exceed an allowable amount calculated pursuant to the regulations. [6 C.F.R. 130.121, 130.127, 130.57D(e)]

To the extent plaintiff challenges the CLC’s regulations as being arbitrary and capricious, in excess of its statutory authority, and contrary to § 203(b)(1), (2) and (5) of the Act, plaintiff’s claims are rejected in light of our decision in Pacific Coast Meat Jobbers Association v. Cost of Living Council, No. 9-7, 481 F.2d 1388 (T.E.C.A.,1973). Challenges asserting the failure of the CLC to' hold adequate hearings and make formal findings were also rejected in that decision. However, none of the claims made by the plaintiffs in Pacific Coast was based on constitutional grounds, as that decision specifically noted.

The first two constitutional issues certified to us are directed not at CLC regulations and procedures, but instead mention only Executive Orders 11723 and 11730. However, we will also construe these two issues to be directed at the CLC regulations and actions in implementing and continuing the freeze on beef prices only. [38 F.R. 19347 et seq. (July 19, 1973) ]

On the first issue certified, plaintiff claims that the freezing of the prices at which plaintiff’s members may sell their beef products in effect constitutes a taking of their property without just compensation in violation of the due process clause of the fifth amendment. An otherwise valid governmental control on prices has been held not to be a taking of property prohibited by the fifth amendment. As the Supreme Court noted in discussing administrative orders fixing maximum rents under the Emergency Price Control Act of 1942:

We are not dealing here with a situation which involves a “taking” of property. ... By § 4(d) of the Act it is provided that “nothing in this Act shall be construed to require any person to sell any commodity or to offer any accommodations for rent.” There is no requirement that the apartments in question be used for purposes which bring them under the Act. Of course; price control, the same as other forms of regulation, may reduce the value of the property regulated. But, as we have pointed out in the Hope Natural Gas Co. case (320 U.S. [591] p. 601 [64 S.Ct. 281, 88 L.Ed. 333]), that does not mean that the regulation is unconstitutional. Mr. Justice Holmes, speaking for the Court, stated in Block v. Hirsh, supra [256 U.S. 135] p. 155 [41 S.Ct. 458, p. 459, 65 L.Ed. 865]: “The fact that tangible property is also visible tends to give a rigidity to our conception of our rights in it that we do not attach to others less concretely clothed. But the notion that the former are exempt from the legislative modification required from time to time in civilized life is contradicted not only by the doctrine of eminent domain, under which what is taken is paid for, but by that of the police power in its proper sense, under which property rights may be cut down, and to that extent taken, without pay.” A member of the class which is regulated may suffer economic losses not shared by others. His property may lose utility and depreciate in value as a consequence of regulation. But that has never been a barrier to the exercise of the police power.

Bowles v. Willingham, 321 U.S. 503, at 517-518, 64 S.Ct. 641 at 648, 88 L.Ed. 892 (1944); accord, Wilson v. Brown, 137 F.2d 348 (Emer.Ct.App.1943). Since this court held in Pacific Coast that the imposition of the price ceiling on beef was a valid exercise of the regulatory powers vested in the President and CLC by the Act, it is clear that there has been no taking here.

The second issue certified is whether defendants’ actions in regard to the beef freeze have effectively deprived plaintiffs of a substantial property interest without opportunity for the notice and hearing required by the due process clause of the fifth amendment. Although this court’s discussion of this issue in Pacific Coast was concerned only with statutory requirements, the court was of the opinion that the CLC’s decision not to hold formal public hearings after notice was entirely rational in light of the extensive informal consultations held, the possibility of counter-productive economic effects, and the impracticability due to the emergency confronting the CLC.

In Bowles v. Willingham, 321 U.S. 503, at 519, 64 S.Ct. 641 at 649, 88 L.Ed. 892 (1944), the Supreme Court stated:

It is finally suggested that the Act violates the Fifth Amendment because it makes no provision for a hearing to landlords before the order or regulation fixing rents becomes effective. Obviously, Congress would have been under no necessity to give notice and provide a hearing before it acted, had it decided to fix rents on a national basis the same as it did for the District of Columbia. See 55 Stat. 788. We agree with the Emergency Court of Appeals (Avant v. Bowles, 139 F.2d 702) that Congress need not make that requirement when it delegates the task to an administrative agency. In Bi-Metallic Investment Co. v. State Board, 239 U.S. 441 [36 S.Ct. 141, 60 L.Ed. 372], a suit was brought by a taxpayer and landowner to enjoin a Colorado Board from putting in effect an order which increased the valuation of all taxable property in Denver 40 per cent. Such action, it was alleged, violated the Fourteenth Amendment as the plaintiff was given no opportunity to be heard. Mr. Justice Holmes, speaking for the Court, stated, p. 445 [of 239 U.S., page 142 of 36 S.Ct.]: “Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.” We need not go so far in the present case. Here Congress has provided for judicial review of the Administrators action. To be sure, that review comes after the order has been promulgated; and no provision for a stay is made. But as we have held in Yakus v. United States, [321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834] supra, that review satisfies the requirements of due process. As stated by Mr. Justice Brandeis for a unanimous Court in Phillips v. Commissioner, 283 U.S. 589, 596-597 [, 51 S.Ct. 608, 611, 75 L.Ed. 1289]: “Where only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for the ultimate judicial determination of the liability is adequate. Springer v. United States, 102 U.S. 586, 593 [26 L.Ed. 253] ; Scottish Union & National Ins. Co. v. Bowland, 196 U.S. 611, 631 [25 S.Ct. 345, 351, 49 L.Ed. 619], Delay in the judicial determination of property rights is not uncommon where it is essential that governmental needs be immediately satisfied.”

In United States v. Lieb, 462 F.2d 1161 (T.E.C.A.1972), the plaintiff claimed that imposition of the initial 90-day freeze denied him due process of law because he was unable to obtain an administrative hearing. This court rejected the contention, stating, at 1167: “If OEP had been required to hold administrative hearings on the advisability of the regulations and interpretations it adopted or planned to adopt, the delays encountered by such hearings would have destroyed the program scheduled to be in effect for only 90 days. Procedures were set up for handling requests for exemptions or exceptions, and Lieb was advised of these procedures. He elected to forego the administrative procedures available to him.”

The opinion in Pacific Coast also held that the implementation and continuation of the freeze on beef prices was a rational decision based upon the best information available. In United States v. Lieb, 462 F.2d 1161, at 1167-1168 (T.E. C.A.1972), this court also stated:

The Supreme Court, in Richardson v. Belcher, 404 U.S. 78 [92 S.Ct. 254, 30 L.Ed.2d 231] (1971), holds that federal statutes are consistent with the due process clause of the Fifth Amendment if they meet the rational basis test enunciated in Dandridge v. Williams, 397 U.S. 471, 485 [90 S.Ct. 1153, 1161, 25 L.Ed.2d 491] (1970), as follows:
“In the areas of economies and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ . . . ‘The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.’ . ‘A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ ”

Accordingly, we reject plaintiff’s claims as to this issue.

The third constitutional issue certified is the question whether defendants’ decision to discontinue the freeze on other meats but to continue the freeze on beef until September 12, 1973, is such an invidious discrimination against plaintiff as to deny the equal protection of the laws, as guaranteed by the due process clause of the fifth amendment. Because no state action is involved here, the equal protection clause of the fourteenth amendment is not applicable. The Supreme Court has said, however, that a “discrimination may be so unjustifiable as to be violative of due process.” Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954). In rejecting contentions that this different treatment for beef was arbitrary and capricious, this court, in Pacific Coast, affirmed the finding of the district court that the CLC decision was based on the following legitimate economic considerations. First, it was decided that market pressures were such that the freeze on meat prices would have to be lifted. Second, it was noted that removal of the ceiling on all meat prices would increase the level of prices dramatically, while splitting the relaxing of the ceiling into beef and non-beef steps would lessen this impact. Third, beef prices had been rising much faster than prices on all other meats. Finally, there was evidence of destruction of live poultry, swine, and sheep, portending future shortages of those meats, while beef was not being destroyed or otherwise withdrawn from the production cycle but was, instead, only being withheld from the market.

Moreover, the determination made was not that there should be a permanent or indefinite ceiling on the price of a single type of meat, but rather a determination of the order in which the entire ceiling should be lifted from all meats. Indeed, had it not been for the fact that this appeal has been expedited, the freeze would have expired by its own terms. In view of these factors, we cannot say that it was an invidious discrimination against plaintiff for the defendants to decide to keep the freeze in effect on beef for two months longer than on other meat products.

The additional argument made here, that in effect it was not rational to continue the freeze against the beef market level occupied by the members of the plaintiff, while leaving prices at the production level uncontrolled, and that the burden of the price control was thus placed solely on those in plaintiff’s members’ position, must be rejected. The affidavit of Dr. John Dunlop reveals that the members of the CLC took into account the many conflicting factors that involve the entire economy of the country. They were mindful that live cattle and raw agricultural products had been exempted by Executive Order, that the purpose of this exemption was to increase the production of feed grain and cattle, and that controls on the prices of these commodities would defeat this purpose. CLC made an honest attempt to foresee the immediate economic developments, and in some instances apparently was mistaken. As of March 29, 1973, when the meat price ceilings were first imposed, the CLC did not expect the cost of feed grain to rise, but it did rise. Substantial withholding of cattle from the market by producers was not anticipated, but it has occurred. The record demonstrates that CLC had a rational basis for its decision, although it may have made mistakes in predicting economic trends. Mere error in judgment does not destroy the fact that there was a reasonable basis for the decision, and its continuance until September 12, 1973, in view of the short period of time involved and the rapidly changing conditions.

Turning our attention now from consideration of the constitutional issues certified to consideration of the plaintiff’s appeal from the denial of preliminary injunctive relief, we find that the record reflects that the evidence in this case is not materially different from that in Pacific Coast. Counsel for the plaintiff has admitted in his own affidavit of August 9, 1973, that the issues and facts of the cases are similar. Many of the affidavits in this case were also offered in Pacific Coast. Although it is indicated that some of the member companies of plaintiff association are unable profitably to continue operations due to the temporary price ceiling on beef, it is not clear that they will suffer irreparable injury. For all of the reasons stated herein and in our opinion in Pacific Coast, plaintiff has failed to show itself entitled to the preliminary injunctive relief sought, and the constitutional issues having been determined adversely to plaintiff, the judgment of the district court is affirmed.

      . Section 211 (c) of the Act provides :
      “In any action commenced under this title in any district court of the United States in which the court determines that a substantial constitutional issue exists, the court shall certify such issue to the Temporary Emergency Court of Appeals. Upon such certification, the Temporary Emergency Court of Appeals shall determine the appropriate manner of disposition which may include a determination that the entire action be sent to it for 'consideration or it may, on the issues certified, give binding instructions and remand the action to the certifying court for further disposition.”

      . “1. Defendants through Executive Orders No. 11723 and 11730 which froze and freeze plaintiff’s prices at a level which is insufficient to recover operating costs and a reasonable return upon investment in order to subsidize the beef consuming public with artificially low beef prices ‘confiscated’ plaintiff’s property in violation of the due process clause of the Fifth Amendment to the Constitution of the United States.
      “2. Defendants in promulgating their freeze on beef through Executive Orders No. 11723 and 11730 deprived plaintiff of a substantial property interest without according them the notice and hearing required by the due process clause to the Fifth Amendment to the United States Constitution.
      “3. Defendants in singling out plaintiff to operate at a loss in order to subsidize artificially low beef prices, while allowing fish, fowl, pork, sheep, and other non-beef processors and packers to pass on increased costs dollar for dollar to the American consumer invidiously discriminate against plaintiff in violation of the ‘imputed’ equal protection clause of the Fifth Amendment to the Constitution of the United States.”

      . Actually, the district court, in making its oral findings and conclusions from the bench and denying plaintiff’s motion for a preliminary injunction, expressly stated, “Plaintiffs have, properly in my opinion, restricted the issues. They admit that we do not face a substantial constitutional question.” Later, in discussing procedure for appeal, the district court indicated it would be willing to certify constitutional questions, and then stated, “It was not framed that way here particularly, but I leave it to you gentlemen to decide if you want to carry it out or how you want to carry it out.”

      . In this case plaintiff, Western States Meat Packers Association, Inc., has not applied for an exception from the price ceiling with the CLC.

      . In discussing the Court’s certification of the constitutional questions, the district court stated that “for the purposes of temporary relief, they [plaintiff’s counsel] did not bring these constitutional questions to the court. As a matter of fact, they waived them for that purpose and argued only the statutory instructions [sic] to the question, the standard question, and they have been denied their temporary relief.”

      . The plaintiff is an incorporated association, and nothing in the complaint indicates that this is a class action. Plaintiff itself neither buys nor sells meat. Although we have serious doubts about the standing of the plaintiff, as a “person suffering legal wrong” under the Act, to bring this action, the issue was not pressed below nor decided by the trial court, and we do not decide it here.

      . This is dispositive also of the defendants’ motion to dismiss the certification of the constitutional issues and to dismiss the appeal.


author: THORNBERRY, Circuit Judge:

text:
    AMERICAN RADIO ASSOCIATION et al., Plaintiffs-Appellants, v. MOBILE STEAMSHIP ASSOCIATION, INC., et al., Defendants-Appellees.
    No. 72-3803.
    United States Court of Appeals, Fifth Circuit.
    Aug. 22, 1973.

      Otto E. Simon, Mobile, Ala., Howard Schulman, New York City, for plaintiffs-appellants.
    Frank B. McRight, Kirk C. Shaw, Mobile, Ala., for Mobile Steamship Assn.
    Alex F. Lankford, III, Mobile, Ala., for Malone.
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   THORNBERRY, Circuit Judge:

A group of unions (appellant) representing seamen on American flag vessels asked the district court to enjoin temporarily state court injunction proceedings brought against the union by Mobile Steamship Association, a membership corporation representing shippers and stevedoring companies at the Port of Mobile, and by Alabama soybean farmer Robert E. Malone. The unions charged that appellees used the state court proceedings to block peaceful picketing at the Port of Mobile, thereby violating the unions’ first amendment free speech rights and 42 U.S.C. § 1983. The district court denied the motion for temporary injunction, and the unions appeal that decision. We conclude the district judge did not abuse his discretion in denying appellants’ motion, and therefore we affirm his decision.

The court below published no findings of fact or conclusions of law, but the parties by and large agree on the facts of this case. Some areas of contention do exist, and where they are important we shall describe the parties’ differing contentions.

The nub of this case is the unions’ dissatisfaction with the wage differential existing between American seamen and their foreign flag counterparts. The unions contend that the substandard wages paid to foreign flag seamen give foreign flag ships a competitive cost advantage over American flag vessels. Since lower costs naturally attract more shipping business, American flag shipping has lost ground to foreign flag shipping and many American seamen consequently have lost their jobs. To counteract this trend the appellant unions launched a nationwide campaign of picketing foreign flag vessels. Typically the pickets peacefully carried signs and handed out literature that described the foreigners’ substandard pay and working conditions, the deteriorating state of the U. S. merchant marine, and the importance of a strong merchant marine. The literature further urged the reader not to patronize foreign flag vessels but to utilize the American merchant marine.

As a part of this campaign appellants began picketing all land entrances to the Port of Mobile’s Alabama State Docks on November 3, 1971, and subsequently confined their activities to the berths of foreign vessels in port. The picketing effectively shut down the port because foreign vessels composed the largest part of the port’s business, and local longshoremen refused to cross the picket lines. The impact of the picketing was unusually strong because it followed on the heels of a longshoremen’s strike that had ended only minutes before appellants’ picketing began. The prospect of continued inactivity and the accompanying loss of business at the port prompted appellee Mobile Steamship Association to seek a preliminary injunction from the Mobile County Circuit Court on the basis that the picketing had an unlawful purpose under Alabama law. The state court enjoined the picketing without issuing findings or conclusions.

Throughout this dispute the unions have maintained that it belongs in the federal courts. They first attempted to remove the state cause of action; the federal district court remanded the action to state court. Their second attempt at federal adjudication came approximately one year after the state injunction. On November 3, 1972, the unions brought the instant action seeking damages, a permanent injunction, and a preliminary injunction against appellees’ further prosecuting their cause in the state court, which in effect would be an injunction against the state court proceedings. The district court denied the motion for preliminary injunction, and the requests for damages and permanent injunction remain before that court.

In the meantime appellants have kept alive their state cause of action by appealing to the Alabama Supreme Court. That court ruled against the unions in May 1973, and overruled their rehearing application on July 5,1973.

Appellants have brought their cause of action in the federal court under 42 U.S.C. § 1983, which gives a cause of action whenever one’s federal rights are violated by a person acting under color of state law. The unions claim appellees violated their first amendment rights of free speech by getting an injunction that halts the unions’ informational picketing, which is a form of speech. The appellees are acting under color of state law, according to the unions, because they utilized the state courts in their transgression of the unions’ first amendment rights. Last, the unions say the doctrine of federal preemption gives primary jurisdiction in this matter to the NLRB and leaves the state court without power to adjudicate.

At this point we must emphasize that the merits of this case are not before the court. At issue here is simply an appeal from the denial of a preliminary injunction. A preliminary injunction’s function is simply to preserve the status quo until the merits can be adjudicated. We test the trial court’s decision by asking whether he abused his discretion. Mercury Motor Express v. Brinke, 5th Cir. 1973, 475 F.2d 1086; Exhibitors Poster Exchange, Inc. v. National Screen Service Corporation, 5th Cir. 1971, 441 F.2d 560. See 7 Moore’s Federal Practice ¶ 65.04 (2d ed. 1972). The case’s merits constituted only one factor to be weighed by the trial court in determining whether a preliminary injunction should issue. The merits are tested by asking whether the moving party has established a probable right to relief. 7 Moore’s Federal Practice [¶] 65.04 (1972). Equally important are irreparable harm to appellants and the balance of harm to all parties.

In regard to the merits we conclude only that appellants’ position is not so clearly correct that it would be an abuse of discretion for the trial court to decide they had not proved a probable right to relief. To illustrate, the unions rest heavily on Thornhill v. Alabama, 1940, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, to maintain that the picketing violates their right to free speech. The Supreme Court, however, restricted Thorn-hill in Teamsters Local 695 v. Vogt, 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347 (1957), which permits states to prohibit picketing where its purpose is counter to a valid state policy. In the instant case appellants claim the sole purpose was Informational, but appellees argue the purpose was to interfere wrongfully with their businesses. Since appellees are neutral third parties in this dispute over seamen’s wages and job opportunities, appellants arguably are violating the Alabama state policy against wrongful interference with the business of another. Without a finding of fact in regard to the unions’ purpose we cannot say whether appellants’ picketing is constitutionally protected free speech or a simple tort.

The preemption issue also will be central to appellants’ claim on the merits. The unions argue that this dispute is within the primary jurisdiction of the NLRB and therefore the state court’s jurisdiction is preempted. A series of Supreme Court cases has dealt with the problem of American unions’ picketing foreign vessels, and the existence of NLRB jurisdiction appears to hinge on whether the dispute is one “affecting commerce.” The dispute does not affect commerce if the picketing’s purpose is to pressure the foreign ship’s owner for more favorable treatment of his crew. In this case the Alabama Supreme Court found:

The dispute was either one between the unions and the foreign shipowners to force a raise in the internal standards of those vessels, or one where the intent was to block use of those ships to force Congress to act in the international sphere, which in either case are matters affecting international relations and not properly for NLRB jurisdiction. American Radio Association v. Mobile Steamship Association, 1973, 291 Ala. 201, 279 So.2d 467.

A Texas court of civil appeals reached a contrary conclusion concerning similar picketing by appellants in Windward Shipping (London) v. American Radio Association, 482 S.W.2d 675 (Tex.Civ. App.-Houston [14th Dist.] 1972, no writ) cert. granted, 412 U.S. 927, 93 S. Ct. 2749, 37 L.Ed.2d 154 (1973), and found that the dispute was not focused on improving the foreign seamen’s job opportunities by encouraging American business to patronize American shipping. Therefore the court . concluded that NLRB jurisdiction preempted the state courts because the dispute affected commerce.

It is undisputed that the unions are dissatisfied with the wage differential existing between them and their foreign counterparts. They are also convinced that this wage differential is costing the American seaman job opportunities. It is not perfectly clear, however, whether they want their picketing to result in a ban on foreign shipping, higher wages for foreign seamen, or simply increased American use of the more expensive American shipping. Their intentions will determine whether the dispute affects commerce and falls within the National Labor Relations Act and the exclusive province of the NLRB. The question is a difficult one, and the U.S. Supreme Court has granted certiorari in the Windward Shipping case. We cannot say that it would be an abuse of discretion to decide that appellant is not likely to prevail on to the preemption issue.

Even if we assume that appellant has shown a “probable right” to recovery on the merits, it must also be able to show “probable danger that the right may be defeated, unless the injunction is issued.” 7 Moore’s Federal Practice ¶ 65.04 (1972). For example, if the injunction is not issued the ensuing course of events may moot the controversy or so weaken the plaintiff financially that it cannot continue the litigation. This is a form of the traditional “irreparable injury” that is prerequisite to injunctive relief.

In the present ease there is no showing that an injunction is necessary to preserve the unions’ cause of action. Their right to recovery is endangered only if we equate danger with the litigation of one’s claim in the Alabama state courts. We repeat that the purpose of a preliminary injunction is to preserve one’s cause of action until it can be adjudicated properly on the merits. This purpose militates against a preliminary injunction in this case for two reasons. First, appellants’ free speech claims have been litigated in the Alabama state courts, and appellants have not shown that their claims received unfair or incompetent treatment. At the time this motion for preliminary injunction was made, appellants had completed litigation in the Mobile County Circuit Court. They persistently postponed an appeal of that court’s preliminary injunction and finally carried their argument to the Alabama Supreme Court in February 1973, more than a year after the trial court’s ruling. That court has now decided against appellants; thus the Alabama courts have already adjudicated this dispute. U.S. Supreme Court review is available if the unions wish to appeal the Alabama Supreme Court decision. The second reason why a preliminary injunction is unnecessary here to preserve the unions’ cause of action is that our leaving the state court injunction in force will only temporarily restrict the unions’ ability to communicate. Refusing a preliminary injunction will not moot the controversy, injure appellants so severely that they cannot pursue their cause of action, or otherwise hamper their chances for adjudication in the federal courts.

The third element in the successful petition for a preliminary injunction is that “plaintiff is in substantial need of protection and that the damage to him in the absence of an injunction outweighs the foreseeable harm to the defendant . . .”7 Moore’s Federal Practice ¶ 65.04 (1972). In this case the state court injunction deprived the unions of their right to publicize their grievances by picketing in the Port of Mobile. The unions’ publicity effort, however, was nationwide (more than twenty states), and the harm from temporarily suspending the picketing in one of those states would seem relatively insubstantial. By contrast appellees alleged that the work stoppage endangered a perishable soybean crop worth $50,000,000. In addition they claimed fixed overhead cost losses of $15,000 per day, vessel demurrage costs of $2,000 to $5,000 per day per vessel, and lost ocean freight revenues of $35,000 per day. They argued further that the work stoppage virtually closed the port and caused manufacturing plants to curtail production and lay off personnel, thereby damaging severely the economy of the City of Mobile. When we balance the injuries we cannot say the trial judge abused his discretion by letting the state court injunction continue to block union picketing and allow the port to function until the case could be heard on the merits.

The foregoing discussion has shown that appellant must meet the three traditional requirements for a preliminary injunction in a manner that would indicate the trial judge abused his discretion in refusing relief. Because he seeks to enjoin proceedings in a state court he must meet an additional requirement. He must show that federal intervention in this case would be justified despite the principles of equity, comity and federalism.

In the Anti-Injunction Act, 28 U.S.C. § 2283, Congress expressed a strong preference to avoid federal intervention in pending state proceedings. The Supreme Court later supported the statute by holding that “any injunction against state court proceedings otherwise proper under general equitable principles must be based on one of the specific statutory exceptions to § 2283 if it is to be upheld. .” Atlantic Coast Line Railroad v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 287, 90 S.Ct. 1739, 1743, 26 L.Ed.2d 234 (1970). Then in Mitchum v. Foster, 1972, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705, the Court held that § 1983 was just such an exception to the Anti-Injunction Act.

Mitchum v. Foster makes possible appellant’s instant § 1983 action in the federal courts; it does not approve unlimited federal intervention in pending state court proceedings. After the Court found § 1983 to be an exception to the Anti-Injunction Act it added a caveat.

. we do not question or qualify in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding.

92 S.Ct. at 2162.

In regard to the principles of equity, we have already discussed the prerequisites that must be met before equity will grant an injunction. We concluded that appellant has failed to demonstrate that it will suffer irreparable harm if the preliminary injunction is not granted and that our injunction would damage appellees substantially more than our refusal to enjoin would harm the unions.

Application of the principles of comity and federalism also leads us to conclude that federal intervention is not warranted in this case. The Supreme Court has defined these principles as

a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. Younger v. Harris, 1971, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed. 2d 669.

Thus the concepts of comity and federalism teach that we should be hesitant to enjoin state court proceedings, for such injunctions create federal-state friction and inject delays, duplication and added expense into the litigation process. The principles of equity require a showing of irreparable harm to justify federal intervention. See Cousins v. Wigoda, 7th Cir. 1972, 463 F.2d 603, application for stay denied, 1972, 409 U.S. 1201, 92 S.Ct. 2610, 34 L.Ed.2d 15 (Rehnquist, Circuit Justice). Since a showing of irreparable harm is absent here, the trial court was well within its discretion to deny the preliminary injunction.

Viewed in terms of the traditional prerequisites for a preliminary injunction and the reticence engendered by the principles of “equity, comity and federalism”, we find the trial court did not abuse its discretion in refusing the appellants’ request for a preliminary injunction.

Affirmed.

      . Section 1983 provides :
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
      42 U.S.C. § 1983.

      . AVrongful interference with the business of another is both a criminal act and a tort in Alabama. Title 14, Section 54, Code of Alabama (1940) (Reeomp.1959) provides:
      Two or more persons who, without a just cause or legal excuse for so doing, enter into any combination, conspiracy, agreement, arrangement, or understanding for the purpose of hindering, delaying or preventing any other persons, firms, corporations, or association of persons from carrying on any lawful business, shall be guilty of a misdemeanor.
      The Supreme Court of Alabama has ruled that such behavior is also tortious. See Pennington v. Birmingham Baseball Club, Inc., 277 Ala. 336, 170 So.2d 410 (1964), and Sparks v. McCrary, 156 Ala. 382, 47 So. 332 (1908). AVe express no opinion here as to the validity of this state policy as a ground for enjoining picketing.

      . American Radio Association v. Mobile Steamship Association, May 3, 1973, Alabama Supreme Court No. SC 12, 71 L.C. 69,494.

      . The principles of preemption in labor cases are discussed in San Diego Bldg. Trades Council v. Garmon, 1959, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775.

      . Incres Steamship Co. v. International Maritime Workers Unions, 1963, 372 U.S. 24, 83 S.Ct. 611, 9 L.Ed.2d 557; McCul-loch v. Sociedad Nacional, 1963, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547; Marine Cooks & Stewards v. Panama Steamship Co., 1960, 362 U.S. 365, 80 S.Ct. 779, 4 L.Ed.2d 797; and Benz v. Compania Naviera Hidalgo, 1957, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709.

      . See 29 U.S.C. § 141, § 152(6), and § 152(7).

      . Section 2283 provides:
      A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.
      28 U.S.C. § 2283.


author: JAMES HUNTER, III, Circuit Judge:

text:
    UNITED STATES ex rel. Joseph RUSSO, Appellant, v. SUPERIOR COURT OF NEW JERSEY, LAW DIVISION, PASSAIC COUNTY, et al., Appellees.
    No. 72-2154.
    United States Court of Appeals, Third Circuit.
    Argued April 30, 1973.
    Decided July 24, 1973.
    As Amended Aug. 23,1973.
    Certiorari Denied Nov. 12, 1973.
    See 94 S.Ct. 447.

      Donald Horowitz, Cummins, Cummins, Dunn, Horowitz, Rosener & Pashman; Hackensack, N. J., for appellant.
    Joseph D. J. Gourley, Prosecutor, Paterson, N. J., for appellees, Gary H. Schlyen, Passaic, on brief.
    Before HUNTER and WEIS, Circuit Judges, and NEWCOMER, District Judge.

      . At this time the jury had deliberated for approximately fifteen hours.

   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This is an appeal from the denial of a writ of habeas corpus by the district court. Appellant Joseph Russo has been accused of committing first degree murder. His first trial ended in a mistrial over his objection. He contends that for the state to retry him would violate the Fifth Amendment’s prohibition against double jeopardy.

After his mistrial, appellant moved for a dismissal of the indictments against him. His motion was denied by the trial court. Leave to file an interlocutory appeal was denied by the Appellate Division of the New Jersey Superi- or Court, and the New Jersey Supreme Court declined to certify the case. Appellant then filed a petition for a writ of habeas corpus. An appeal to this court followed the denial of appellant’s petition by the district court.

A full factual exposition is necessary to an understanding of appellant’s double jeopardy contention. Appellant has been charged with two murders at a party at his home. His trial on these charges began on December 3, 1971 and ended in a mistrial on December 18, 1971.

The state’s principal witness testified that he had seen appellant shoot the victims. But the defense produced a witness who testified that in fact it was the state’s witness who had killed the decedents. The state’s witness had testified that appellant had fired at one of the victims from close range (two feet) while the defense witness claimed that the state’s witness had shot from a distance of seven or eight feet.

The defense then produced a special agent of the Federal Bureau of Investigation. The agent stated that he was not able to find any powder residue on the clothing of the victims and that the presence of powder residue was related to the distance of the gun from the victim. He testified that six to eight feet was the maximum distance at which there could be powder residue on the clothing. That is, it was possible that if the weapon were fired from closer than eight feet, there could be no powder residue. But if it were fired from beyond six to eight feet, there definitely could be none.

“THE COURT: In other words, what you’re saying is that if the gun was shot beyond six to eight feet, no matter how far beyond, it wouldn’t show powder residue, but if it was shot between the gun barrel and the victim within — if the distance was less than eight feet there could be residue. Is that what you’re saying?
“THE WITNESS: Yes, sir, it could. It could be closer, but he is asking me for the maximum distance and I would say eight feet would be the maximum distance at which you wouldn’t find with any of those barrel lengths.” Appellant’s Appendix, 45a-46a.

The witness further testified that if the victims had been shot from close range, powder residue would have been left on the clothing.

“Question: How about residue from two to eighteen inches ?
“Answer: Yes, sir.
“Question: Beyond that would there be any?
“Answer: Beyond there, out to probably three to four feet, you might have residue.” Appellant’s Appendix, 47a.

The testimony of the F.B.I. agent thus tended to support the testimony of the defense’s witness. As so often happens, credibility was a key question for the jury.

After hearing testimony for nine days, the jury was charged on the morning of December 17, 1971. The jury began deliberating at 10:35 a.m. At 7:05 p.m., the court recalled the jury to give them a supplemental charge. At 8:20 p.m. the trial court again recalled the jury. The court instructed the jurors to retire and to determine among themselves whether they would be able to reach a verdict shortly. If they could not, they would have to spend the night in a motel. The jury returned to the jury room, and defense counsel objected that the court was “putting undue pressure on the jury at this point to arrive at a verdict.”

The jury came back to the courtroom at 8:45 p.m. The following dialogue occurred :

“THE COURT: Madam Forelady, I don’t want you to give me any figures. I don’t want you to make any statement whatsoever except to respond to my question as to whether you believe that if you stay for a short time here there is a reasonable possibility of you arriving at a unanimous verdict.
“MADAM FORELADY: Yes, your Honor. We need a little bit more time.
“THE COURT: A little bit more time.

Well, the Court will be very happy to make that available for you, but you must understand that you can have all the time that you need whether it is tonight or whether it would be tomorrow. Time is no problem. Those of us who are employed by the County are prepared, as a part of our responsibility, to give the full time to a jury and you folks should understand that you have the full time in order to arrive honestly, without sympathy, without prejudice, without fear, just having in mind what is a just result.” Appellant’s Appendix, 14a.

The jury returned to the jury room. At 9:50 p.m. they sent a note to the court indicating that at that time they were far from reaching a verdict. The court then decided to have the jury spend the night in a motel. These events prompted the defense counsel to move for a mistrial on the grounds that the jury was “hopelessly deadlocked.” The state indicated it would object to any grant of a mistrial. The court did not specifically rule on the defense motion, but sent the jury to a motel.

The next morning the court sent the jury out to deliberate at 9:28 a.m. Minutes later, the jury sent a note to the judge requesting, among other things, the testimony of both the state’s witness and the defense’s witness as to the distance of the gun from the victims and the testimony of the F.B.I. agent about the relation of powder residue to distance.

The rest of the morning was devoted to assembling the portions of testimony requested by the jury. It is unclear whether the jury was deliberating from the time of its request until 11:30 a.m. when the portions of the record they had asked for were read to them by the court. The jury retired at 12:15 p.m. for lunch and to continue deliberating. At 2:25 p.m. the court called the jury back to the courtroom, where, as the record shows, the trial judge declared a mistrial without warning to or consultation with either the defense or the prosecution :

“Madam Forelady, I want to ask you a question and-I don’t want any numbers from you. I would like to get a yes or no answer. Has the jury arrived at a unanimous verdict?
“THE FORELADY: Not yet, your Honor.
“THE COURT: Well, last night there was a question in the Court’s mind after reviewing with counsel as to whether or not because of the long time that you spent here, whether it would be fair to let the jury continue to deliberate. I felt I wanted to have a full opportunity for you to review and to deliberate and, therefore, I arranged for you to have the unpleasantness of going to a motel, which you did, and since then you have had breakfast, you deliberated, you have had lunch, and I noticed as you walked out you seem to be walking out so very wearily and I appreciate very much all that you have done and I am satisfied that it would not be fair to the defendant, nor to the State if in your weariness you arrived at unanimity just for the sake of entering a verdict. I feel that this requires you to be alert and that the time has passed when there is a risk that your verdict would not really represent what you actually feel would be just.
“So that under the circumstances I am going to declare a mistrial and I won’t impose upon you any longer than I have. I have imposed upon you because I felt that I had to because of the seriousness of the charge against the defendant that he was entitled to have judged by you and, under the circumstances, I am going to excuse you.” Appellant’s Appendix, 48a-49a.

Appellant objected to the granting of the mistrial in the judge’s chambers after the jury had been dismissed. It is this declaration of a mistrial upon which appellant’s double'jeopardy contention is based.

Appellant has presented one other ground for relief. He alleges that the walls of the jury room in which the jury deliberated here were thin enough to permit outsiders to overhear conversations that occurred inside the room. As a result of this structural defect, he further alleges, it was common knowledge that the jury in his case was leaning towards acquittal. He claims that he is entitled to an evidentiary hearing as to whether the trial judge had this knowledge and whether he based his decision to declare a mistrial on it. The district court denied his request.

JURISDICTION

Although the state has not questioned our jurisdiction to hear this case, we feel that a brief jurisdictional statement is necessary. Appellant is presently released on $75,000 bail pursuant to Article I, par. 11 of the New Jersey Constitution and Rule 3:26, Revised Rules of Court of New Jersey. He presented his double jeopardy claim to the state courts so he has exhausted his state remedies.

The Supreme Court has recently held that a defendant released on his own recognizance is “in custody” within the meaning of 28 U.S.C. §§ 2241(c)(3), 2254(a). Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). The only difference between Hensley and our case is that Hensley had been convicted of a misdemean- or and was awaiting sentence when he petitioned for habeas corpus while appellant has not yet been convicted.

This is not a significant difference. In Burris v. Ryan, 397 F.2d 553 (7th Cir. 1968), the petitioner was initially charged with rape. That charge was dismissed following a mistrial. The petitioner was then charged with rape, indecent liberties, and contributing to the delinquency of a minor. While on bail and before trial he petitioned for habeas corpus. The court held that he was “in custody” at this time. Other courts have made similar rulings. Matzner v. Davenport, 288 F.Supp. 636, 638 n. 1 (D.N.J.1968), aff’d., 410 F.2d 1376 (3d Cir. 1969); Foster v. Gilbert, 264 F. Supp. 209, 211-212 (S.D.Fla.1967).

If appellant had been tried in federal court, we could hear his double jeopardy claim even though he had not yet been convicted. United States v. Lansdown, 460 F.2d 164, 170-172 (4th Cir. 1972).

In view of Hensley, Lansdown and the policy behind the double jeopardy clause, we feel that it is proper for appellant to present his claim. One of the main purposes of the double jeopardy clause is to prevent citizens from being subjected to the ordeal of another trial. United States v. Green, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). See page 11, infra. We see no reason sufficient to subvert this purpose by forcing appellant to condition assertion of his right upon conviction. Accordingly, we hold that this court does have jurisdiction under 28 U.S.C. §§ 2241(c) (3), 2254(a).

DOUBLE JEOPARDY

The prohibition against double jeopardy contained in the Fifth Amendment, made applicable to the states by Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), has been recognized as a fundamental American right. Behind that clause is a deep concern that the government should not be able to use its vast power and resources to subject a citizen to repeated prosecutions for the same alleged of-fence, Reprosecution increases the possibility that an innocent man may be found guilty; and it forces a defendant through the ordeal of another criminal trial, involving additional anxiety, insecurity, embarrassment and expense. E. g. Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). When a mistrial is declared, another policy also is relevant: the defendant may have been deprived of “ ‘ [a] valued right to have his trial completed by a particular tribunal,’ ” which he believes may be “favorably disposed to his fate.”

For these reasons the courts have consistently adhered to the standard formulated by Justice Story in United States v. Perez, 9 Wheat. (22 U.S.) 579, 580, 6 L.Ed. 165 (1824) in determining whether a trial judge properly exercised his discretion in declaring a mistrial without a defendant’s consent:

“We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They* are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution under urgent circumstances, and for very plain and obvious cases; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.”

“Manifest necessity” must be present, then, for a trial judge to declare a mistrial and still preserve for the state the right to prosecute a defendant. What constitutes “manifest necessity” is unclear. The Supreme Court has stated that its decisions “escape meaningful categorization;” and the court has emphasized that each case must necessarily turn on its particular facts. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (U.S.1973).

A trial judge has a broad discretion to determine what factual situations merit a mistrial and allow a defendant to be reprosecuted. Illinois v. Somerville, supra. But while the Supreme Court has refused to make hard and fast rules about when mistrials may be declared, it has always recognized that trial judges may declare a mistrial without barring reprosecution only in extraordinary circumstances.

Some of the cases, in the words of Justice Douglas, involved “a breakdown in judicial machinery,” Gori v. United States, 367 U.S. 364, 372, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961) (dissenting opinion), in which there was no chance of prosecutorial or judicial manipulation that could subject a defendant to a second prosecution when a conviction might not be obtained in the first. United States v. Perez, supra (deadlocked jury); United States v. Simmons, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891) (juror acquainted with defendant) ; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892) (deadlocked jury); Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894), (juror disqualified for being member of grand jury which had indicted defendant); Wade v. Hunter, supra, (military campaign necessitated termination of court martial). The Court has also looked at what alternatives the trial judge had available to him when he thought that a mistrial was required. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); United States v. Jorn, supra.

The most recent Supreme Court decision in this area is Illinois v. Somerville, supra. There the court held that an obvious procedural error in the trial that would make reversal on appeal- a certainty justified a retrial after a mistrial had been declared. In Somerville, the indictment was defective, and Illinois law would not permit it to be amended. Nor could a defendant waive the defect. Although a prosecutorial mistake was involved, the majority emphasized that the defective procedure did not lend itself to prosecutorial manipulation. The only alternative in that situation was to let the trial continue and to force the state to conduct another complete trial if the defendant were to be convicted in the first one. The court held that in those circumstances the public’s interest in “obtaining an impartial verdict or keeping a verdict of conviction if its evidence persuaded the jury” outweighed the defendant’s right not to be retried.

In reviewing a trial court’s declaration of a mistrial, then, we must at least look at the possibility of manipulation inherent in the procedure complained of, the alternatives available to the trial judge at the time, and the presence “of some important countervailing interest of proper judicial administration.” Illinois v. Somerville, supra, 410 U.S. at 468, 93 S.Ct. at 1074. And it must be emphasized that even in cases where there is no possibility of manipulation or prejudice to a defendant beyond that of undergoing another trial, the double jeopardy clause will bar re-prosecution unless there is an “important countervailing interest of proper judicial administration.” Illinois v. Somerville, supra. (Emphasis added).

With these considerations in mind, we move to a review of the trial judge’s determination that in this case there was manifest necessity present so that appellant can now be retried after having been deprived of a verdict by the jury then empaneled.

The trial judge decided that the jury was too exhausted to reach an impartial verdict. This, argues the state, made a mistrial a manifest necessity. While the appellant argues that no double jeopardy case has ever been decided on the basis of jury exhaustion, we are not willing to state that this could never provide the manifest necessity necessary to declare a mistrial. Cf. United States v. Potash, 118 F.2d 54, 56 (2d Cir. 1941), cert. denied 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540 (mistrial declaration upheld because a juror was “incapacitated to continue.”).

We do, however, find that there was no “manifest necessity” in the present ease. This is a mixed question of fact and law which we can freely review. E. g. Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 9 L.Ed.2d 770; United States ex rel. Thomas v. State of New Jersey, 472 F.2d 735, 737, 738 (3d Cir. 1973).

As Justice Story said in Perez:

“ . . . [T]he power [to declare a mistrial] ought to be used with the greatest caution under urgent circumstances, and for very plain and obvious cases; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner.” Id. 22 U.S. at 580, 6 L.Ed. 165.

No “caution” or “urgent circumstances” appear on this record. Beyond one statement made by the judge while the jury was deliberating and the statement he made to the jury when it was dismissed, there is no support in the record for the trial judge’s determination of their physical condition. The trial judge did not ask the jury about its physical condition, and the jury did not volunteer any statements. The jury never indicated that it was exhausted. Nor did the trial judge ask the defense counsel or the prosecutor as to their impression of the jury’s condition. In short, there is nothing on the record to distinguish the physical condition of this jury from the condition of any other jury that has heard nine days of testimony and deliberated for fifteen hours. Even the prosecutor — quite candidly and properly^ — admitted before us at oral argument that he was surprised at the trial judge’s action.

The Sixth Circuit in United States v. Lansdown, 460 F.2d 164, 169 (4th Cir. 1972) held that:

“The conclusion that a jury is unable to reach a verdict must be supported by something in addition to the trial court’s conclusion that the jury has deliberated long enough. (footnote omitted).”

We think a similar rule should be applied as to the jury’s physical condition.

Not only was there no inquiry as to the physical condition of the jurors, there was no questioning them as to their progress towards reaching a verdict. Before the defendant loses his Fifth Amendment right, we think that the trial judge must at least determine whether the jury is approaching a verdict. United States v. Lansdown, supra. The only indications present at that time were the jury’s response “not yet” to the judge’s question as to whether a verdict had been reached and the requests by the jury for certain crucial portions of the testimony. The response “not yet” is perfectly consistent with a jury actively deliberating, People ex rel. Stabile v. Warden City Prison, 202 N.Y. 138, 95 N.E. 729 (Ct.App.1911) ; and the testimony which the jury requested demonstrated that they were focusing on a crucial issue in the case. To reiterate, the jury never stated anything to indicate that it was exhausted or deadlocked, and the trial judge had previously told the jurors that they could have all the time they needed. See p. 5, supra.

The manner in which the decision in this case was reached could easily lead to manipulation. As the Court said in Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 224 (1957) :

“This [jeopardy attaching after the jury is sworn] prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict.” (Emphasis added).

The jury was dismissed at 2:25 p. m., and the jurors could have been permitted to remain until the end of the day with little additional hardship. The trial was almost at an end, so the state was not saving any resources as a result of the judge’s declaration as it did in Somerville.

If “manifest necessity” is to mean anything as a standard, we must find that none existed in this case. A defendant has a valued right to a particular tribunal, and it was taken away from him here.

Much of what the court in United States v. Lansdown, supra, 460 F.2d at 169, stated is applicable:

“We conclude that there was no ‘manifest necessity’ in this case for declaring a mistrial when the district court did so. The district court, without considering any other factors, simply concluded that approximately 11 hours of deliberation, in a case presenting a close question of credibility, was long enough. The district judge did not seek the opinion of counsel or the defendant; after having told the jury that it could be ‘leisurely in its deliberations,’ he made no inquiry as to whether the jury was about to reach a verdict or thought that a verdict was possible. Indeed, he rejected statements from the jury that it was on the verge of a verdict and wished to continue. The jury was dismissed at approximately 1:00 P.M. The jurors would have suffered little additional hardship if required to remain at least until the end of the day. Under these circumstances, we believe that the district court failed to protect adequately the defendant’s right to have his case decided by a particular tribunal.” (footnotes omitted).

When he denied appellant’s motion for dismissal of the indictments against him, the trial judge indicated that he was “in effect” agreeing with appellant’s motion for a mistrial made on the previous day. But as the record shows, appellant’s motion was made on the basis that the jury was deadlocked while the trial judge declared a mistrial on the grounds that the jury was exhausted. Appellant could very well have concluded from the jury’s request for the critical testimony that there was a strong possibility of a verdict. Appellant’s assessment of his chances with this jury could easily have changed after his request for a mistrial. We see no reason to lock him into a motion once it is made.

In addition, the trial judge stated at the hearing that appellant’s counsel did not object while the jury was in the box and that he only objected as an “afterthought.” Appellee’s Appendix, pg. 21. While the better practice may be to object as soon as counsel learns that a mistrial is to be granted, see Scott v. United States, 202 F.2d 354 (D.C.Cir.1952), cert. denied 344 U.S. 879, 73 S.Ct. 176, 97 L.Ed. 681 (1952), appellant’s counsel was in a difficult situation. He had no advance warning or notice that a mistrial was to be declared; as we mentioned, even the prosecutor admitted that he was surprised by the trial judge’s action. The Supreme Court’s conclusion in United States v. Jorn, supra, 400 U.S. at 487, 91 S.Ct. 547, 558, may also be applicable in this situation:

“. . . [I]ndeed, the trial judge acted so abruptly in discharging the jury that, had the prosecutor been disposed to suggest a continuance, or the defendant.to object to the discharge of the jury, there would have been no opportunity to do so.”

Also, to have objected in front of the jury might have prejudiced appellant for trying to “show up” the trial judge, especially if some members of the jury actually did want to go home despite their civic obligation. In this situation, we cannot penalize appellant for failing to object sooner.

If we were presented with a close ease, we would have the admonishment of the Supreme Court to resolve doubts about the propriety of a mistrial in favor of the liberty of a citizen. Downum v. United States, supra, 372 U. S. at 738, 83 S.Ct. 1033. But this is not a close case. We can find no compelling reason to force appellant through still another trial after he was deprived of a jury in the midst of its deliberation. In this instance the state’s interest in enforcing its laws must yield to the right of its citizen not to be reprosecuted.

Since we have disposed of this case on appellant’s double jeopardy claim, we do not find it necessary to reach his second contention. We repeat what we said in footnote 15, however, that there is nothing to indicate to us that the trial judge behaved with any impropriety.

The judgment of the district court will be reversed, and the case remanded to that court for it to grant appellant’s petition for a Writ of Habeas Corpus.

      . Between the denial of his motion for certification by the New Jersey Supreme Court and his petitioning for a writ of habeas corpus, appellant was retried. There was another mistrial. His double jeopardy claim arises from the first mistrial.

      . The chronology of these events is as follows:
      18 December 1971 Mistrial declared.
      1 May 1972 Motion to dismiss indictments denied.
      28 May 1972 Leave to appeal denied by Appellate Division of the New Jersey Superior Court.
      1 June 1972 Certification denied by the New Jersey Supreme Court.
      5 June 1972 Retrial commenced on indictments.
      17 June 1972 Retrial ends in mistrial.
      31 July 1972 Appellant files his petition for a writ of habeas corpus.

      . United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), quoting: from Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1948).

      . United States v. Jorn, supra, 400 U.S. at 486, 91 S.Ct. 547, 558.

      . E. g. United States v. Perez, 9 Wheat. (22 U.S.) 579, 580, 6 L.Ed. 165 (1824) : “To be sure, the power ought to be used with the greatest caution under urgent circumstances, and for very plain and obvious cases; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the in-isoner.”
      Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891), quoting Perez “test.” Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892), citing Perez. Wade v. Hunter, 336 U.S. 684, 692, 69 S.Ct. 834, 839, 93 L.Ed. 974 (1948) :
      “This case presents extraordinary reasons why the judgment of the Commanding General should be accepted by the courts.”
      Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901 (1961):
      “Where, for reasons deemed compelling by the trial judge, ... a mistrial may be declared . . . and he [the defendant] may be retried
      Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963):
      “The discretion to discharge the jury before it has reached a verdict is to be exercised ‘only in very extraordinary and striking circumstances,’ to use the words of Mr. Justice Story in United States v. Coolidge, 25 Fed.Cas. 622, 623.”
      United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971):
      “The Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. See United States v. Perez, 9 Wheat. (22 U.S.) 579, 580, 6 L.Ed. 165 (1824).”
      Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (U.S.1973) :
      “The determination by the trial court to abort a criminal proceeding where jeopardy has attached is not one to be' lightly undertaken, since the interest of the defendant in having his fate determined by the jury first impaneled is itself a weighty one. United States v. Jorn, supra.”

      . In United States v. (Jori, supra, the court permitted a retrial because the trial judge’s ruling was for the “sole benefit” of the defendant. To analyze double jeopardy cases on the basis of which party benefited from the ruling has been questioned by the Supreme Court in United States v. Jorn, supra, 400 U.S. at 483, 91 S.Ct. 547.

      . Justice White’s dissent argued that a prosecutorial error could not be a sufficient excuse to reprosecute a defendant. Illinois v. Somerville, supra.

      . As Mr. Justice White stated in dissent in Somerville:

        “Downum and Jorn, over serious dissent, rejected the view that the Double Jeopardy Clause protects only against those mistrials that lend themselves to prosecutorial manipulation and underwrote the independent right of a defendant in a criminal case to have the verdict of the initial jury. Both eases made it quite clear that the discretion of the trial court to declare mistrials is reviewable and that the defendant’s right to a verdict by his first jury is not to be overridden except for ‘manifest necessity.’ ” Id., 410 U.S. at 471, 474, 93 S.Ct. at 1075.
      Where the majority and the dissent differed in Somerville is over whether there was manifest necessity to declare a mistrial.

      . The Supreme Court lias on numerous occasions made similar statements. E. g. Downum v. United States, 372 U.S. 734, 737, 83 S.Ct. 1033, 1035, 10 L.Ed.2d 100. “Here, as in Wade v. Hunter, supra, 336 U.S. at 691, 69 S.Ct. at 838, 93 L.Ed. 974, we refuse to say that the absence of witnesses ‘can never justify discontinuance of a trial.’ Each case must turn on its facts.”

      . On the first day of deliberation, the judge had informed the jury that if it could not reach a verdict shortly, he would have to determine whether to send them to a motel for the night. Appellant’s attorney objected that the judge was putting undue pressure on the jury, and the judge made the following statement about the propriety of sending the jury to a motel:
      “THE COURT : Very well.
      “My concern here is that the jury should be able to render a verdict while they are alert and I have some concern that as the hours pass that sometimes people tire. They may not tire, they may have enough enthusiasm for their work that they could go on for hours, but these are responsibilities that I feel that the Court has to weigh. What I am suggesting here is what I feel is necessary in the interest of a just and a fair determination.”

      . See page 5. At the hearing on appellant’s motion to dismiss the indictments, the judge also made the following statement :
      “Now, on the previous occasions that day when the jury emerged from their room the Court had observed what was happening, what had started out to be an alert, neatly dressed and a neatly appearing jury. The men’s ties were off and all the parties appeared to be discheveled in appearance. I asked the forelady if the jury had arrived at a unanimous verdict and she exliaustedly said, ‘not yet.’ I described to the jury my observations of it wearily entering the jurybox and my concern lest their evident condition lead to an unjust verdict.” Appellee’s Appendix, 20.

      . Fifteen hours is not an unusually long time for a jury to deliberate. In De-Grandis v. Fay, 335 F.2d 173 (2d Cir. 1964), the court held that it was not a violation of due process for a trial judge to have kept the jury in deliberation for twenty-four eonsecutive hours (i. e., without sleep) during which time the jury twice advised the court of its fatigue.

      . The state contends that the trial judge adhered to the procedures suggested by the New Jersey Supreme Court in inquiring into the possibility that a verdict could be reached. See State v. Hutchins, 43 N.J. 85, 96, 202 A.2d 678, 685 (1964). While the trial judge did ask the jury whether a verdict might be reached during the first day of deliberations, see pg. 5 supra, the record shows that he made no such inquiry on the following day.

      . We cannot emphasize too strongly that there is nothing to lead us to suspect that the trial judge was guilty of such manipulation. But the possibility exists and is a factor which we definitely must consider. The alternatives are to allow the discretion of the trial judge to go unchecked or to become embroiled in embarrassing inquiries into his motives in each particular case.

      . Although it should be obvious, we feel that we should add that the construction of the jury room in question here can only lead to similar difficulties occurring in the future. A jury’s deliberations are normally considered secret, and the fact that it is possible to hear conversations which take place inside that room opens up possibilities of overt interference with deliberations of the jury as well as claims such as appellant makes here. It may also inhibit jurors in their discussion to realize that certain portions of their conversations may be overheard.
      We commend' to the attention of the appropriate governmental authorities the new standard work “The American Courthouse” published by Edwards Brothers, Ann Arbor, Michigan. At page 56, the text reads: “For security reasons, windows should not permit public exposure, especially at ground level, and the room should be soundproof.” The confidentiality of a jury’s deliberation and its necessary comfort during this critical time are far too important to be jeopardized by cost cutting construction practices which ultimately develop to be counterproductive.