(concurring in the result).
In light of the decision of this court in Robinson v. Neil, 452 F.2d 370 (6th Cir. 1971) cert. granted, 406 U.S. 916, 92 S.Ct. 1800, 32 L.Ed.2d 115 (1972). I feel constrained to concur in the decision to affirm the judgment of the District Court.
I agree with the majority opinion that Tennessee law permitted a prosecution *328for violation of a state law after a conviction for violation of a municipal ordinance proscribing the same conduct. As the majority observes, the basis for this practice is the distinction drawn by Tennessee courts between the “civil” nature of municipal prosecution and the “criminal” nature of state proceedings. See, e. g., O’Dell v. City of Knoxville, 214 Tenn. 237, 379 S.W.2d 756 (1964). I also agree that courts are not bound to accept this civil-criminal dichotomy for purposes of applying the Fifth Amendment double jeopardy clause.
However, it is not clear that under Tennessee law, a municipality is a separate sovereign from the state. Indeed, the rule appears to be that a municipality is merely an arm of the state to which has been delegated certain of the state’s sovereign powers. See, e. g., Bricker v. Sims, 195 Tenn. 361, 259 S. W.2d 661 (1953); Nashville, C. & St. L. Ry. v. Marshall, 161 Tenn. 236, 30 S.W. 2d 268 (1930). If, under Tennessee law, a municipality and the state are the same sovereign, then the rule of Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084 (1907), made applicable to the states by Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), that arms of the same sovereign cannot prosecute for the commission of the same offense, would enable appellant to raise a double jeopardy defense to the state prosecution that he challenges in this appeal.
This court’s decision in Robinson, however, which also involved Tennessee law, appears to have foreclosed this argument. If the question with which the Robinson opinion was concerned were still open in this circuit, I would hold that, for the reasons stated above, it is not necessary under Tennessee law to reach the question of the retroactivity of the decision in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). If, in any event, I am incorrect in my assessment of Tennessee law on the sovereignty issue, I would hold, as did the District Court in Robinson, 320 F.Supp. 894 (E.D.Tenn.1971), that Waller should receive retrospective application.
Accordingly, were it not for the decision of this court in Robinson, I would hold that appellant properly could assert a federal double jeopardy defense as a bar to his state prosecution, and I would reach the question whether appellant’s plea of guilty to that offense waived his right to raise his double jeopardy claim in these post-conviction proceedings.