                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                      No. 17-6682

JOSHUA D. BLAIR,

                    Petitioner - Appellant,

             v.

VIRGINIA DOC,

                    Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Roderick Charles Young, Magistrate Judge. (3:16-cv-00934-RCY)

Submitted: October 17, 2017                                   Decided: October 19, 2017

Before FLOYD and HARRIS, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Joshua D. Blair, Appellant Pro Se. Michael Thomas Judge, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Joshua D. Blair seeks to appeal the magistrate judge’s order dismissing as

untimely his 28 U.S.C. § 2254 (2012) petition. * The order is not appealable unless a

circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A)

(2012). A certificate of appealability will not issue absent “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court

denies relief on the merits, a prisoner satisfies this standard by demonstrating that

reasonable jurists would find that the district court’s assessment of the constitutional

claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-

El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on

procedural grounds, the prisoner must demonstrate both that the dispositive procedural

ruling is debatable, and that the petition states a debatable claim of the denial of a

constitutional right. Slack, 529 U.S. at 484-85.

       We have independently reviewed the record and conclude that Blair has not made

the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to

proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

                                                                             DISMISSED

       *
       This case was decided by a magistrate judge with the parties’ consent pursuant to
28 U.S.C. § 636(c) (2012).

                                             2


183 Ga. App. 378 (1987)
358 S.E.2d 852
HOGUE
v.
STONE MOUNTAIN MEMORIAL ASSOCIATION.
73866.
Court of Appeals of Georgia.
Decided May 29, 1987.
Rehearing Denied June 19, 1987.
*382 William H. Smith, Jr., for appellant.
Michael J. Bowers, Attorney General, Daniel M. Formby, J. Robert Coleman, Senior Assistant Attorneys General, Angeline Mathis, for appellee.
BANKE, Presiding Judge.
Bonnie Hogue sued the Stone Mountain Memorial Association to recover for personal injuries she allegedly sustained when she "stepped off an abrupt, unseen ledge" while walking to a "laser show" on the grounds of Stone Mountain Park. She appeals the grant of Stone Mountain's motion for summary judgment, contending that the trial court erred in concluding as a matter of law that her claim was barred by the Recreational Property Act, OCGA § 51-3-20 et seq. For purposes of this appeal, Mrs. Hogue concedes that her claim is predicated entirely on simple negligence and that, as a consequence, if the trial court was correct in concluding that the Recreational Property Act was applicable, it was also correct in granting Stone Mountain's motion for summary judgment.
In essence, the Recreational Property Act specifies that "an *379 owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes" may not be held liable for personal injuries resulting from unsafe or defective conditions existing on the premises, unless such injuries resulted from "willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity...." OCGA §§ 51-3-23; 51-3-25 (1). See also OCGA § 51-3-22. "`Recreational purpose,' includes, but is not limited to, any of the following or any combination thereof: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites." OCGA § 51-3-21 (4).
In reliance on Stone Mountain Memorial Assn. v. Herrington, 225 Ga. 746, 747 (171 SE2d 521) (1969), and Brannon v. Stone Mountain Memorial Assn., 165 Ga. App. 120 (299 SE2d 176) (1983), the trial court determined that a fee which the appellant and her husband had been required to pay upon their initial arrival at the park was not an admission fee or a charge for the recreational use of the park property itself but rather a fee for the privilege of bringing their motor vehicle into the park. The appellant contends that Herrington and Brannon are distinguishable from the present case in that, at the time the trial court ruled on the summary judgment motion in the present case, Stone Mountain had not yet submitted any evidence warranting such a characterization of the fee in question. Additionally, the appellant contends that, regardless of whether an entry fee was or was not charged, a jury would be entitled to find the Recreational Property Act inapplicable based on the "business interests" test set forth in Cedeno v. Lockwood, Inc., 250 Ga. 799 (301 SE2d 265) (1983).
The appellant and her husband had driven to the park from their home in North Carolina in the company of their youngest daughter for the purpose of camping there with an older daughter and her family, who were en route to Texas from Florida. They paid an initial fee of $4.00 upon entering the park, in return for which they received a vehicle sticker which permitted them to exit and re-enter the park without additional charge during their stay there. They also paid a camping fee upon registering at the campground; and, during the course of their 2-day stay at the park, they purchased food, souvenirs, and tickets to such park attractions as the cable car ride, boat ride, and automobile museum. On the evening of what was to be the second and last night of their stay, the family left the park temporarily to dine at a nearby pizza restaurant. Upon their return, they set out on foot from a parking lot to attend the laser show. In the darkness, the appellant stepped off the edge of a concrete slab traversing her pathway and fell, severely fracturing her ankle. Held:
*380 1. We must disagree with the appellant's contention that there was no evidence of record at the time the trial court ruled on Stone Mountain's motion for summary judgment to warrant a finding that the initial $4.00 fee paid by the appellant and her husband constituted a motor vehicle fee rather than a fee for the recreational use of the park itself. It is apparent from the deposition testimony of the appellant and her husband that in return for this fee they received a vehicle sticker permitting them to leave and re-enter the park without additional charge. It is further apparent from their testimony that, whereas they had been accompanied only by their younger daughter at the time they paid the fee, various additional family members were subsequently permitted entry into the park as occupants of the vehicle during the course of the weekend, without additional charge.
In the absence of contrary evidence, such testimony leads inescapably to the conclusion that, as was the case in Herrington and Brannon, supra, what was purchased by the initial $4.00 fee was a permit for the use of a vehicle in the park. It follows that the trial court was authorized to conclude as a matter of law that this fee did not constitute a charge for the recreational use of the parkland itself. The additional fees paid by the appellant and her husband for purchases of such items as a camping permit, food, souvenirs, and tickets to park rides and attractions similarly cannot be considered charges for the recreational use of the parkland itself, it appearing that such general activities as swimming and sightseeing were available to and engaged in by the family without charge.
2. The appellant further contends that even if she was not charged an admission fee the Recreational Property Act may nevertheless be considered inapplicable pursuant to the "business interests" test set forth in Cedeno v. Lockwood, Inc., supra. In that case, the Supreme Court held that an area of buildings, streets, sidewalks, and alleyways located in the City of Atlanta and known as "Underground Atlanta" could not be considered recreational property within the contemplation of the Act because it was made available to the public not for recreational use but as a commercial attraction to promote the sale of food, merchandise, and services by the various business establishments located there. Stone Mountain Park, on the other hand, is operated by a non-profit, public entity created by statute (OCGA § 12-3-191 et seq.) for the limited purpose of acquiring and administering Stone Mountain and the property adjacent thereto "as a Confederate memorial and public recreational area...." OCGA § 12-3-191 (6). We must accordingly deem the park premises to be a public recreation area, notwithstanding the fact that substantial revenues may be derived from the sale of special permits, concessions, and tickets to rides and other attractions located on the premises. Since the appellant's alleged injuries resulted from her general recreational *381 usage of the park premises, for which no fee was charged, rather than from the use of any of the facilities, rides, or attractions for which a fee was charged, we hold that the trial court was correct in concluding as a matter of law that the provisions of the Recreational Property Act operated to prevent her from recovering from the Stone Mountain Memorial Association based on allegations of simple negligence.
Judgment affirmed. Birdsong, C. J., Deen, P. J., McMurray, P. J., Carley, Sognier, Pope, and Beasley, JJ., concur. Benham, J., dissents.
BENHAM, Judge, dissenting.
I dissent from the opinion of the majority, which holds the Recreational Property Act ("RPA") (OCGA § 51-3-20 et seq.) applicable to the facts of this case. I focus on the "business interest" exception to the applicability of the RPA, as enunciated in Cedeno v. Lockwood, 250 Ga. 799 (2) (301 SE2d 265) (1983). In that case, the Supreme Court held that if the public were invited upon land in furtherance of the owner's business purposes, the RPA "will not shield the owner from liability even though the public receives some recreation as a side benefit." Id. at 802.
I do not quarrel with the fact that appellee was created to administer Stone Mountain Park as a public recreation area. See OCGA § 12-3-191 (6). However, the association was empowered by the same legislation to operate the "project," defined as the "accommodations, utilities, facilities, services, and equipment necessary or convenient, and all property ..., including franchises and easements, in ... operating Stone Mountain ... and property adjacent thereto ..." Thus, there is a business aspect within the operation of the recreation area, a fact the majority acknowledges with its reference to the "substantial revenues [that] may be derived from the sale of special permits, concessions, and tickets to rides and other attractions located on the premises." Majority opinion at p. 380. I object to the majority's failure to take into consideration the business aspect of the Stone Mountain Memorial Association. Appellant presented evidence that she and her family expended funds within the park to camp, to enjoy various amusement rides, to shop, to eat, and to enter various museums. It is my opinion that appellant's testimony shows that, while there is a recreational benefit to be derived from a visit to Stone Mountain Park, the public is also invited to further the business interests of appellee through the sales of food, merchandise, and services. In light of the evidence of the furtherance of appellee's business interests, I do not believe summary judgment in favor of appellee, based upon the applicability of the RPA, was warranted, and therefore must respectfully dissent.


FRY V. STATE

(comment: 1)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-02-207-CR

BOBBY GENE FRY	APPELLANT

V.

THE STATE OF TEXAS	STATE

------------

FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

------------

OPINION

------------

Appellant appeals the denial of his request for counsel for the purpose of obtaining an order for post-conviction forensic DNA testing pursuant to chapter 64.01 of the code of criminal procedure.  Because we hold the order that Appellant seeks to appeal is an interlocutory, unappealable order, we dismiss the appeal for want of jurisdiction.

Background

On July 25, 2001, Appellant filed an affidavit of indigency and a pro se request for appointment of counsel to assist him in obtaining an order for forensic DNA testing under chapter 64 of the Texas Code of Criminal Procedure.
See

Tex. Code Crim. Proc. Ann.
 art. 64.01(c) (Vernon Supp. 2003).  This statute provides:

(c)  A convicted person is entitled to counsel during a proceeding under this chapter.  If a convicted person informs the convicting court that the person wishes to submit a motion under this chapter and if the court determines that the person is indigent,
the court shall appoint counsel
 for the person.

Id.
 (emphasis added).  On October 2, 2001, Appellant, pro se, sent a letter to the trial court desiring to know the status of his request for counsel.

On February 5, 2002, the State filed a reply, supported by affidavits of two property custodians, stating that any evidence relating to Appellant’s case had been previously destroyed.  In its response, the State urged the trial court to “summarily den[y]” Appellant’s request for counsel because “to provide him with counsel to file a motion would constitute a useless act by this Court.”

On March 18, 2002, eight months after Appellant filed his motion for appointment of counsel, the trial court signed an order which states, in full, “The Court finds that there exists no evidence containing biological material available in this case to be tested.  Accordingly, the Court denies the defendant’s request for counsel to file a motion for forensic DNA testing.”  At Appellant’s request the court appointed him counsel on appeal.

Jurisdiction To Appeal The Trial Court’s Order

The right to appeal in a criminal case is a substantive right solely within the province of the Legislature.
Lyon v. State
, 872 S.W.2d 732, 734 (Tex. Crim. App.),
cert. denied
, 512 U.S. 1209 (1994).  “A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed.”
 Tex. Code Crim. Proc. Ann.
 art. 44.02 (Vernon 1979).
 Generally, a criminal defendant may only appeal from a final judgment.

See

State v. Sellers
, 790 S.W.2d 316, 321 n.4 (Tex. Crim. App. 1990);
Hilburn v. State
, 946 S.W.2d 885, 886 (Tex. App.—Fort Worth 1997, no pet.).
 “The courts of appeals do not have jurisdiction to review interlocutory orders unless that jurisdiction has been expressly granted by law.”

See Apolinar v. State
, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991).

The pertinent appeal statute in Appellant’s case is article 64.05 which provides:

An appeal of a finding under Article 64.03 [denial of DNA testing] or 64.04 [trial court’s finding after DNA is tested] is to a court of appeals, except that if the convicted person was convicted in a capital case, the appeal of the finding is a direct appeal to the court of criminal appeals.

Tex. Code Crim. Proc. Ann.
 art. 64.05.  Appellant’s request for appointment of counsel was made under article 64.01.  Appellant has not filed, and therefore the trial court has not ruled upon, a request for forensic DNA testing.

The Texas Court of Criminal Appeals has recently discussed the legislative history regarding the appealability of certain determinations made by the trial court under chapter 64.  In
Kutzner v. State
, the court explained that the initial  proposed version of chapter 64 did not provide for any appellate review of the convicting court’s determinations under chapter 64.  75 S.W.2d 427, 433-34 (Tex. Crim. App. 2002).  As further analyzed by the court in
Kutzner
,

Early in the legislative process, the Senate Jurisprudence Committee added an amendment that authorized an appeal of only the convicting court’s “findings under proposed Article 64.04.”

The House Criminal Jurisprudence Committee later amended the Senate Jurisprudence Committee’s version of Article 64.05 to authorize an “appeal of a finding under Article 64.03 or 64.04.”  The House Criminal Jurisprudence Committee bill analysis explained that this amendment “provides for an appeal of a convicting court’s
determination to order testing
” under Article 64.03, and the House Research Organization bill analysis also explained that this amendment authorized “[a]ppeals of orders for tests [under Article 64.03] or of findings about test results [under Article 64.04].”  Both houses of the Legislature . . . enacted this version of Article 64.05.

Id.
 at 434 (emphasis added and internal footnotes omitted).  It is evident from this analysis that when the Legislature enacted chapter 64, it carefully considered the appealability of certain trial court determinations made under chapter 64 and crafted the current statute which specifically provides for an appeal from a determination to order testing under article 64.03 and from a finding under article 64.04 regarding the results of testing.  Article 64.05 is silent concerning any right of appeal from a trial court’s denial of request for counsel under article 64.01.

We agree with our sister court of appeals that a trial court’s denial of counsel under article 64.01 is not appealable under article 64.05.
See McIntosh v. State
, No. 10-01-409-CR, slip op. at 3, 2002 WL 31779905, at *1 (Tex. App.—Waco Dec. 11, 2002, no pet.);
see also In re Bretz
, No. 08-03-068-CR, 2003 WL 1889945, at *1 (Tex. App.—El Paso April 17, 2003, orig. proceeding) (not designated for publication) (holding that because there is no right to appeal from denial of counsel under chapter 64, relator did not have adequate remedy by appeal and mandamus was appropriate procedural vehicle to challenge denial of counsel).
(footnote: 1)  Accordingly, we hold the trial court’s order denying Appellant’s request for appointment of counsel under article 64.01 is not an appealable order.
(footnote: 2)
Conclusion

We dismiss the appeal for want of jurisdiction.
(footnote: 3)

DIXON W. HOLMAN

JUSTICE

EN BANC

LIVINGSTON, J. filed a dissenting opinion in which WALKER, J. joins.

DAUPHINOT, J. filed a dissenting opinion joining LIVINGSTON, J.'s dissenting opinion.

PUBLISH

DELIVERED: June 5, 2003

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-02-207-CR

BOBBY GENE FRY	APPELLANT

V.

THE STATE OF TEXAS	STATE

------------

FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

------------

DISSENTING OPINION

------------

I respectfully dissent to the majority opinion.  The majority decided that we have no jurisdiction over this appeal and must dismiss.  It has concluded that the trial court’s order denying Appellant the appointment of counsel and finding that no evidence of biological material is available is an interlocutory and therefore non-appealable order.  I respectfully believe that article 64.05 and the court of criminal appeals' directives found in its
Kutzner
 opinion dictate a different conclusion.
Tex. Code Crim. Proc. Ann.
 art. 64.05 (Vernon Supp. 2003);
Kutzner v. State
, 75 S.W.3d 427 (Tex. Crim. App. 2002).

In
Kutzner
, the court determined that it had jurisdiction over a capital appellant’s request for DNA testing and held that a convicting court’s “findings,” for purposes of appeals under article 64.05, extend to
any

determinations
 under 64.03.
Kutzner,
75 S.W.3d at 434.  It also concluded that the limitation of appellate review to mere “findings” would be inconsistent with the legislative purpose of providing convicted persons “full access to the courts” and to “provid[ing] a check on individual courts’ [sic] decisions.”
Id
. at 434-35.  The court further directed that there should be no distinction in such person's rights to appeal based solely upon the convicting court’s label of “findings” or “conclusions of law” because that could result in different treatment of similarly situated people.
Id.
 at 435.  Since
any determination
 by the convicting court under chapter 64 is reviewable by appeal, it follows that a trial court’s failure to appoint counsel when the appellant has met the sole two requirements for counsel is error subject to direct appeal.  Some of the other intermediate courts have held similarly.

In
Clark v. State
, the Beaumont Court of Appeals held that there are only two requirements to appointment of counsel:  1) a request and 2) indigence.  84 S.W.3d 313, 314 (Tex. App.—Beaumont 2002, pet. ref'd).  Once a convicted person meets these two requirements, the appointment of counsel is mandatory.
Id
.  The Beaumont court noted that the appellant had been denied counsel at the “stage clearly mandated” by chapter 64.
Id.
  The court held that the failure to make such an appointment, even when appellant had filed a pro se motion, failed to comply with the statute and that such failure affected appellant’s substantial rights requiring reversal on direct appeal.
Id.
;
see

Tex. R. App. P.
44.2(b).

Similarly, the Houston First District Court of Appeals held that a convicting court’s denial of an evidentiary hearing on appellant’s motion for DNA testing could be reviewed on appeal even absent express findings or determinations on the merits.
Thompson v. State
, 95 S.W.3d 469, 471 (Tex. App.—Houston [1
st
 Dist.] 2002, no pet.).  Citing to
Kutzner
, the court noted that the court of criminal appeals had “explicitly 'rejected' a 'narrow and hypertechnical construction of Article 64.05.'”
Id
.  While the court ultimately determined that there is no statutory hearing requirement at the initial 64.03 stage, it clearly held that it had jurisdiction on direct appeal to review the trial court’s findings, “express or implied.”
Id.

Despite this, the majority, following the
Rodriguez
 opinion and rationale, will require an indigent convicted person who has no counsel, and quite likely no access to a record, to file a mandamus proceeding seeking to compel the trial court to comply with its ministerial duty to appoint counsel.
  See In re Rodriguez
, 77 S.W.3d 459, 461 (Tex. App.—Corpus Christi 2002, orig. proceeding);
Cravin v. State
, 95 S.W.3d 506, 508 (Tex. App.—Houston [1
st
 Dist.] 2002, pet. ref’d) (holding appellate review was proper regarding trial court’s denial of DNA testing after State responded the evidence did not exist proper).  I believe that requiring such indigent convicted person to pursue mandamus when the statute clearly contemplates direct appeal of all chapter 64 determinations turns the statute on its head and denies direct appeals to those without counsel while allowing those who had counsel, appointed or otherwise, to appeal the court’s determinations.  Surely, a convicting court’s denial of appointed counsel
after the convicted person has met the two requirements
is tantamount to the denial of the motion itself, regardless of the merits.

Additionally, it is important to note that in this case the convicting court’s order states, “[t]he Court finds that there exists no evidence containing biological material available in this case to be tested.  Accordingly, the Court denies the defendant’s request for counsel to file a motion for forensic DNA testing.”  This “finding” of “no evidence” is clearly a “determination” under chapter 64, mandating direct review under article 64.05.

For these reasons, I believe this court has jurisdiction and should submit the case and reverse and remand for appointment of counsel.

TERRIE LIVINGSTON

JUSTICE

DAUPHINOT and WALKER, JJ. join.

DELIVERED: June 5, 2003

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-02-207-CR

BOBBY GENE FRY	APPELLANT

V.

THE STATE OF TEXAS	STATE

------------

FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

------------

DISSENTING OPINION

------------

I join Justice Livingston’s dissent.  I write only to emphasize that  contrary to the majority’s assertion that “the trial court has not ruled upon [ ] a request for forensic DNA testing,” the trial court’s order provided:

The Court finds that there exists no evidence containing biological material available in this case to be tested.  Accordingly, the Court denies the defendant’s request for counsel to file a motion for forensic DNA testing.

The trial court could not have entered a “no-evidence” finding without reaching the merits of the case, and the trial court used this substantive finding to retroactively justify violating Appellant’s right to counsel.  This finding is clearly a final determination; thus, we have jurisdiction to review this case under chapter 64.

LEE ANN DAUPHINOT

JUSTICE

DELIVERED: June 5, 2003

FOOTNOTES
1:
Cf.

Cravin v. State
, 95 S.W.3d 506, 508 (Tex. App.—Houston [1
st
 Dist.] 2002, pet. ref’d) (holding trial court’s denial of motion for forensic DNA testing constituted implied determination that the evidence did not exist under article 64.03-.04 and was appealable under article 64.05);
Thompson v. State
, 95 S.W.3d 469, 471 (Tex. App.—Houston [1
st
 Dist.] 2002, pet. filed) (holding trial court’s denial of motion for forensic DNA testing under article 64.03, without evidentiary hearing, was an appealable order under article 64.05);
Clark v. State
, 84 S.W.3d 313, 314 (Tex. App.—Beaumont 2002, pet. ref’d) (in addressing trial court’s denial of motion for forensic DNA testing under article 64.03, court of appeals also ruled upon appellant’s complaint that trial court denied his request for appointment of counsel).

2: We observe that
a trial court has a mandatory duty to appoint counsel under article 64.01(c) once the convicted person establishes his indigence and requests counsel be appointed to assist in filing a motion for forensic DNA testing.
See In re Rodriguez
, 77 S.W.3d 459, 461 (Tex. App.—Corpus Christi 2002, orig. proceeding);
Gray v. State
, 69 S.W.3d 835, 837 (Tex. App.—Waco 2002, no pet.);
see also Bretz
, 2003 WL 1889945, at *1.  As analyzed by the court in
Rodriguez
, the statute makes no provision for summary denial of the request for counsel; conspicuously absent from article 64.01(c) is any requirement of a prima facie case of entitlement to DNA testing before the right to counsel attaches.
77
 S.W.3d at 461.  Under the statute, the only requirements for appointment of counsel are a request for counsel and indigence.
Id.
  Once a convicted person meets those requirements, appointment of counsel is mandatory.
Id.

3: Appellant is not without a remedy in this case.
See Rodriguez
, 77 S.W.3d at 461 (holding trial court had ministerial duty to appoint counsel to indigent defendant under article 64.01, and conditionally granting writ of mandamus).
See also In re Cash
, 99 S.W.3d 286, 288 (Tex. App.—Texarkana  2003, orig. proceeding) (ordering trial court to rule on convicted person’s request for appointment of counsel under article 64.01, determine whether convicted person is indigent, and if indigent to immediately appoint counsel).

COMMENTS AND ANNOTATIONS
Comment 1:
Majority Op by HOLMAN, Dissent Op by LIVINGSTON, in which WALKER and DAUPHINOT, JJ. join, Dissent Op by DAUPHINOT, J.


35 Pa. Commonwealth Ct. 470 (1978)
Joseph Kraftician, Appellant
v.
Borough of Carnegie, Appellee.
No. 2175 C.D. 1976.
Commonwealth Court of Pennsylvania.
Argued May 1, 1978.
May 24, 1978.
Argued May 1, 1978, before Judges CRUMLISH, JR., WILKINSON, JR. and BLATT, sitting as a panel of three.
Ronald P. Koerner, with him Gatz, Cohen, Segal & Koerner, for appellant.
*471 Stephen A. Zappala, with him Nathan T. Cohen, and Zappala & Zappala, for appellee.
OPINION BY JUDGE WILKINSON, JR., May 24, 1978:
Appellant filed a complaint in assumpsit in the Allegheny County Court of Common Pleas seeking monetary damages for alleged wrongful discharge[1] when he was furloughed from his position as a police officer in the Borough of Carnegie (Borough). The lower court dismissed the complaint. We affirm.
The complaint stems from a resolution adopted by Borough Council on January 31, 1972, in which council resolved for economic reasons to furlough eight employees, including four firemen, two street department workers and two policemen. Appellant was subject to this furlough resolution as the oldest police officer on the force who was eligible for retirement.[2] He remained on furlough status from February 13, 1972, the effective date of the resolution, until May 5, 1973 when he was recalled. After his recall, appellant worked for a week before submitting his resignation. Prior and subsequent to the furlough the Borough employed three part-time extra policemen, designated by the Borough as "special police." Two of the police were primarily engaged in traffic control and patrol *472 of the business district in the Borough and one was employed as a communications officer operating a base station coordinating police activity in the Borough and eight neighboring municipalities. Although these special police were not equipped by the Borough with standard police equipment such as a gun or handcuffs, they were permitted to carry their own such equipment.
The appellant has framed the issue on appeal to this Court as follows: "Can a municipality terminate the employment of a regular civil service police officer for alleged economy reasons while retaining special police with no civil service status?" We must answer, within the confines of the facts presented in this case and the applicable law, in the affirmative.
The Borough Code permits municipalities to reduce the number of their police or fire force, where required for economic or other reasons. See Section 1190 of the Code, 53 P.S. § 46190. However, Section 1195 of the Code, 53 P.S. § 46195, specifically excludes from this section extra or special police who are hired on a part-time basis. Thus, the Code does not require that, when reducing the complement of the police force, municipalities must include special police in making that determination.[3] Moreover, this Court has held with respect to similar provisions in the Police Tenure Act[4] that a municipality may reduce its police force for reasons of economy and efficiency even where the municipality hires non-civil service employees to perform some of the same clerical duties previously performed by police officers. Gruver v. Howell, 28 Pa. Commonwealth Ct. 296, 368 A.2d 920 (1977).
*473 The only limitation imposed on the power of a municipality to act in the reduction of its police civil service work force for economy or other reasons is that it must act in good faith. Thus, where there is affirmative evidence of bad faith on the part of municipal officials or where the facts show a patent attempt to avoid or circumvent civil service provisions, our Courts have held a municipality's exercise of this power may be illegal. See Schauer v. Whitehall Borough, 413 Pa. 6, 194 A.2d 318 (1963); Mack v. Hoover, 342 Pa. 291, 20 A.2d 757 (1941). On the subject of bad faith and the degree of proof required for a police officer to prevail when challenging the reduction of a police force, this Court recently held that sufficient evidence of bad faith must be produced to rebut the presumption that public officials acted with regularity. Gruver, supra; see also, Gabriel v. Trinity Area School District, 22 Pa. Commonwealth Ct. 620, 350 A.2d 203 (1976). Here, there is little evidence in the record to suggest that Borough Council acted for any reason other than economy as compared with ample evidence the Borough faced severe budgetary problems in the year of the furlough. The mere fact that the Borough continued to employ special police to work only in a limited area of the Borough on a part-time basis is not sufficient to show an attempt to circumvent the civil service provisions of the Code and thus show the requisite bad faith on the part of Borough officials.
Appellant, however, suggests that this Court should extend the rulings in Schauer, supra and Mack, supra, to require that a municipality must, consistent with the Code's civil service provisions, first furlough extra police before reducing its civil service police force. We cannot agree. The Code clearly does not mandate this result since it makes specific provision that the mayor may appoint special police to perform certain *474 limited police functions and excludes these extra police from consideration in regular police civil service matters. Compare Section 1190 of the Code with Section 1195 of the Code. Thus, we believe the intent of the legislature is contra the position urged by appellant. Also, we do not believe the mere continued utilization of extra police must perforce operate to nullify or circumvent the civil service laws and protections accorded regular police officers. As the record in this case suggests, special or extra police are frequently employed by municipalities to perform only limited duties and are needed in a municipality during certain limited hours to complement the regular police force. Appellant's assertion that a municipality could circumvent the civil service laws by hiring special police and furloughing its regular police would be relevant under the rules established in Schauer, supra, and Mack, supra. However, as we have previously indicated such is not the case here.
Accordingly, we will enter the following

ORDER
AND NOW, May 24, 1978, the order of the Court of Common Pleas of Allegheny County at No. 3443 October Term, 1973, dated February 24, 1976, is hereby affirmed.
NOTES
[1]  Appellant was furloughed. He resigned after being called back from furlough.
[2]  This furlough was made pursuant to Section 1190 of The Borough Code (Code), Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46190, which provides in pertinent part:

If for reasons of economy or other reasons it shall be deemed necessary by any borough to reduce the number of paid employes of the police or fire force, then such borough shall apply the following procedure: (i) if there are any employes eligible for retirement under the terms of any retirement or pension law, then such reduction in numbers shall be made by retirement of such employes, starting with the oldest employe. . . .
[3]  It is interesting to note that on the facts of this case, appellant's furlough would have been required even if the special police were considered part of the force for furlough purposes.
[4]  Act of June 15, 1951, P.L. 586, as amended, 53 P.S. § 811 et seq.


164 U.S. 248 (1896)
WILSON
v.
KIESEL.
No. 189.
Supreme Court of United States.
Argued and submitted November 3, 1896.
Decided November 30, 1896.
APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF UTAH.
Mr. Abbot R. Heywood for the motion submitted on his brief.
Mr. Ogden Hiles opposing.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
Wilson recovered judgment against the Ogden Power Company, a corporation organized under the laws of the Territory of Utah, for $22,405.16, on which an execution was issued and returned wholly unsatisfied, whereupon he filed a bill in the Fourth Judicial District Court for the Territory of Utah, County of Weber, against the company; and against Kiesel, Anderson and Carnahan, and many others, to compel them severally to pay their respective unpaid subscriptions to the capital stock of the corporation to be applied in satisfaction of the judgment. Defendants Kiesel, Carnahan and Anderson were charged with having each subscribed for fifty shares *249 of the par value of one hundred dollars each and with being each liable for five thousand dollars. They answered denying that there was anything due from them to the corporation, and alleging that each of them had paid in full and at par value the amount of the stock subscribed by him; and averring, among other things, that plaintiff was also a subscriber and had paid no part of his subscription; and that Wilson had long before sold and assigned the said judgment and now had no interest therein; and by way of cross complaint alleged that said judgment was entered by unauthorized consent and was fraudulent and void for various reasons set forth; that it had been sold and transferred to third parties; and that if the action of Wilson against the company had been tried, no greater sum than two thousand dollars would have been found due; to which cross complaint plaintiff filed an answer.
The record discloses that some twenty-two of the other defendants filed their several answers to the complaint, but does not contain those answers. The cause was referred to a special master to take testimony and report his findings thereon, and he subsequently filed a report containing twenty-one findings of fact, embracing a finding that defendants Kiesel, Carnahan and Anderson had paid their subscriptions to the capital stock in full, and to these the master added twenty-nine further findings, making fifty in all. As a conclusion of law the master recommended that the court find that plaintiff was entitled to a judgment for the sum of $16,500.52; that some thirty-two named defendants, not including Kiesel, Carnahan and Anderson, should be, respectively, ordered to pay their unpaid subscriptions in the amounts stated; and that said amounts should be applied in payment of the judgment and costs. A decree was thereupon rendered in favor of plaintiff, April 29, 1893, making the findings and conclusions of the master the findings and conclusions of the District Court, and awarding judgment against each of some thirty defendants for amounts stated severally and separately as to each, and in favor of some seven defendants under a stipulation that they had paid their *250 several subscriptions, and also in favor of defendants Kiesel, Carnahan and Anderson. Plaintiff moved for a new trial as to Kiesel, Carnahan and Anderson, which was denied, and he appealed to the Supreme Court of the Territory from the judgment in favor of Kiesel, Carnahan and Anderson and from the order overruling the motion for a new trial. The record does not contain the appeal of the other defendants from the judgment which had been rendered in favor of plaintiff and against them, but it appears from the opinion of the Supreme Court of the Territory that they did so appeal, and that all the contesting defendants were before that court.
On January 29, 1894, the judgment of the District Court on plaintiff's appeal was affirmed with costs. On the same day the opinion of the Supreme Court of the Territory was filed in the case, a copy of which was transmitted in accordance with our rule, is referred to by counsel for appellant as part of the record, and as such may serve to supply certain marked deficiencies otherwise existing therein. From this opinion it appears that plaintiff appealed from the judgment in favor of Kiesel, Carnahan and Anderson, and that twenty-four other defendants appealed from the judgment against them. The Supreme Court, after rehearsing the facts in the case, stated the question on plaintiff's appeal to be whether Kiesel, Carnahan and Anderson had paid their subscriptions to the capital stock of the company as contended on their behalf; and that the questions raised on the appeal of the other defendants were whether plaintiff while a delinquent subscriber himself could maintain this action in equity against other delinquent subscribers; whether the judgment at law in Wilson's favor was fraudulent and void; and whether if the judgment was valid plaintiff could maintain an action on it as the real party in interest. The Supreme Court held that a delinquent subscriber could maintain the action but must contribute pari passu with the other subscribers to the payment of the amount due him; that the judgment was not conclusive on the subscribers, ought to have been reduced by a very large amount, and would have to be reversed in order to afford the subscribers the opportunity to test the validity of *251 Wilson's claim against the corporation; and that Wilson was not the real party in interest at the beginning of the action and could not maintain it in his own name, which latter conclusion called for the affirmance of the judgment in favor of Kiesel, Carnahan and Anderson, and the absolute reversal of the judgment against the other defendants and the remanding of the cause to the court below with directions to dismiss the action, it being, therefore, unnecessary to pass on the question as to whether or not Kiesel, Carnahan and Anderson had paid their subscriptions to the capital stock of the company.
While the judgment of affirmance appears in the record, the judgment of reversal with directions does not. From the judgment of affirmance, the plaintiff appealed to this court and gave bond running to Kiesel, Carnahan and Anderson, or either of them, and citation was issued to Kiesel, Carnahan and Anderson only.
It is evident from the foregoing statement that this appeal must be dismissed. The complaint alleged that Kiesel, Carnahan and Anderson each subscribed to fifty shares of the capital stock of the Ogden Power Company of the par value of one hundred dollars each, and that each was liable for five thousand dollars for which recovery was sought. This did not reach the jurisdictional amount. Chapman v. Handley, 151 U.S. 443.
It is true that these defendants contended that the amount due from each on their several subscriptions had been paid by a conveyance of land which was owned by them jointly, but the matter in dispute was the liability of each for five thousand dollars, and the fact that their several subscriptions may have been paid with joint property would not make the question of the liability of each a question of the liability of all and they did not seek a recovery over. But it is said that the matter in dispute far exceeded the jurisdictional limit, because Kiesel, Carnahan and Anderson had filed a cross complaint seeking to set aside and cancel Wilson's judgment against the Ogden Power Company, which was a judgment for $22,405.16. This contention, however, only demonstrates that the appeal must be dismissed for want of proper parties, *252 as the other defendants were directly and vitally interested in the disposition of the cross complaint and necessary parties to the appeal. Not having been made such, and there being no summons and severance, or the equivalent, the appeal cannot be sustained. Davis v. Mercantile Trust Co., 152 U.S. 590; Hardee v. Wilson, 146 U.S. 179.
Indeed this objection is fatal in any view, for while this record is manifestly inadequate and insufficient, it does appear and is conceded that the other defendants were before the Supreme Court of the Territory on their own appeal as well as Kiesel, Carnahan and Anderson on Wilson's appeal, and that the case was disposed of as to all of them on a ground common to all. We cannot be required to consider such a case by piecemeal, and if we were to take jurisdiction and determine the questions which have been argued at the bar, we should, in fact, be disposing of matters affecting parties not before us and who have been afforded no opportunity to be heard.
Appeal dismissed.


1 F.Supp. 946 (1931)
HARRIS
v.
MISSOURI PAC. R. CO. et al.
No. 4385.
District Court, E. D. Illinois.
July 8, 1931.
Beasley & Zulley, of East St. Louis, Ill., for plaintiff.
*947 Whitnel & Browning, of East St. Louis, Ill., for defendant Missouri Pac. R. Co.
P. K. Johnson, of Belleville, Ill., and C. E. Weisell, of Cleveland, Ohio, for all other defendants.
WHAM, District Judge.
By his bill the plaintiff seeks relief from a ruling of the general committee of adjustment of the Grand International Brotherhood of Locomotive Engineers, a labor union of which the plaintiff is a member, which ruling has been permitted to go into effect by the defendant Missouri Pacific Railroad, by which company the plaintiff is employed as a locomotive engineer, and which ruling affects detrimentally the plaintiff's rights of seniority. The case is now before the court upon the motions of the defendants to dismiss the bill. The principal ground of the motions is that the bill fails to state facts entitling the plaintiff to equitable relief.
It appears from the plaintiff's bill and the exhibits thereto attached and made a part thereof that the ruling which is complained of was made in a controversy between two local divisions of the Brotherhood of Locomotive Engineers on the Missouri Pacific Railroad, namely Division 674 located at Dupo, Ill., and referred to as the Illinois Division, of which the plaintiff is a member, and Division 42 located at St. Louis, Mo., and referred to as the Missouri Division, of which the individual defendants are members. The controversy involved the rights of the members of the respective locals to man the runs between Dupo, Ill., and Poplar Bluff, Mo., via Gale, Ill., and Dexter Junction, Mo. The distance from Dupo to Gale is 114 miles, from Gale to Dexter Junction 50.91 miles, and from Dexter Junction to Poplar Bluff 26 miles. Of this territory the 114 miles between Dupo and Gale, in the territory of the Illinois Division, and the 26 miles between Dexter Junction and Poplar Bluff, in the Missouri Division, is the property of the Missouri Pacific Railroad, while the 50.91 miles of trackage between Dexter Junction and Gale belongs 46.91 miles to the Cotton Belt Railway and 4 miles to the Missouri-Illinois Bridge Company, over which the Missouri Pacific Railroad had trackage rights only. The question as to how the runs between Dupo and Poplar Bluff should be prorated between the two locals and whether the foreign trackage should be considered in the apportionment had been a live controversy for a number of years. On January 10, 1927, it was considered by the general committee of adjustment on an appeal by the Illinois Division from conflicting rulings on the subject by the general chairman, and was disposed of as follows:
"Moved and seconded  Decision of General Chairman that foreign territory can not be prorated be sustained. Motion carried.
"Moved and seconded  Decision of General Chairman giving prorate of foreign territory from Dexter Junction to Gale to Missouri Division be reversed. Motion carried.
"Moved and seconded  The rights of the Mo. Div. engineers to continue the use of Cotton Belt rails between Dexter Junction and Gale for runs originating on Mo. Div. and terminating at Gale is conceded. Motion carried.
"Moved and seconded  That the prorate on runs between Dupo and Poplar Bluff via Dexter Junction be not retroactive. Motion carried."
The foregoing ruling was not appealed from by any of the interested parties and became effective. At the time of this ruling, Gale, Ill., was a division point on the Missouri Pacific Railroad, and by the decision of the general committee of adjustment the runs originating on the Missouri Division and terminating at Gale were conceded to the members of the Missouri Division. Subsequently, Gale was abolished as a terminal, whereupon the controversy was reopened by a letter from the officials of the Missouri Division, under date of December 14, 1927, to the general chairman of the general committee of adjustment, complaining that the abolishment of Gale as a terminal had destroyed the runs originating on the Missouri Division and terminating at Gale, which had been conceded to the Missouri Division in the former ruling, and again sought to have the foreign trackage between Dexter Junction and Gale prorated to the Missouri Division. It was further stated in the letter that the Missouri Division, after the abolishment of Gale as a division point, had sought an agreement with the Illinois Division, but that the Illinois Division would not agree to any departure from the ruling of the general committee of adjustment on January 20, 1927, and that, having failed to reach an agreement with the Illinois Division, the Missouri Division was, by its letter, referring its complaint to the general committee of adjustment under the provisions of sections 34 and 35 of the standing rules.
Following the receipt of this letter by the general committee of adjustment, a special *948 committee was appointed to consider the question presented therein. By its letter of January 17, 1929, the special committee reported that it had reviewed the file in the controversy, heard witnesses, and found that Gale had been abolished as a terminal on October 5, 1927, which had eliminated the runs held by the Missouri Division engineers between Poplar Bluff and Gale. Due to these circumstances, the special committee recommended:
"That Missouri Division engineers be given all mileage between Poplar Bluff and Gale on runs originating at Poplar Bluff and terminating at Dupo, originating at Dupo and terminating at Poplar Bluff.
"And that Illinois Division be given all mileage between Bush and Dexter Junction on runs originating at Bush and terminating at Poplar Bluff and originating at Poplar Bluff and terminating at Bush.
"Should Gale be re-established as a terminal for runs between Poplar Bluff and Gale, the runs will be manned by Missouri Division engineers."
The recommendation of the special committee was adopted by and became the ruling of the general committee of adjustment.
From this ruling of the general committee of adjustment, the Illinois Division appealed to the Grand Chief Engineer on points of law under the provisions of section 29 of the standing rules, which section is hereinafter quoted with the other pertinent provisions of the constitution and by-laws. As a basis for its appeal, it set out that the effect of the ruling of the general committee of adjustment appealed from was to prorate the foreign territory between Gale and Dexter Junction to the Missouri Division, which was in direct conflict with the former ruling of the general committee of adjustment "that foreign territory cannot be prorated" which former ruling had not been appealed from and was established law. Upon consideration of the appeal, the Grand Chief Engineer denied the appeal, ruling that the fact that Gale had been abolished as a terminal created a new condition which did not exist at the time of the former ruling and therefore no points of law were involved in the ruling appealed from. In his letter of April 8, 1929, to the Illinois Division denying their appeal on points of law, and giving reasons therefor, the Grand Chief Engineer stated, "If you are dissatisfied with the decision of the General Committee of Adjustment, it is your prerogative to appeal as per Section 28 of the standing rules, providing such appeal is made within ninety days from the date the decision was rendered." The Illinois Division perfected no appeal under section 28, but contented itself with appealing from the decision of the Grand Chief Engineer on points of law to the Grand International Division, which body on June 12, 1930, convened in the Sixth Triennial Convention, sustained the decision of the Grand Chief Engineer, whereby the ruling of the general committee of adjustment complained of became final.
It is the contention of the plaintiff that the ruling of the general committee of adjustment complained of is in direct conflict with its former ruling which had become the established law of the order and had not been repealed as provided by the laws of the order, and therefore constituted a violation of the constitution and by-laws of the order to the detriment of the plaintiff; that the plaintiff and others similarly situated with him are entitled to relief in equity from the burden of the said void and wrongful order.
It is not alleged in the bill nor are facts alleged which indicate that the action of the general committee of adjustment in making the ruling complained of was in any way affected or caused by fraud, duress, collusion, or other wrongful influence or that the rights of the plaintiff, under the constitution, were arbitrarily denied. On the other hand, the facts alleged and the contents of the exhibits attached to the bill indicate that the decision of the general committee of adjustment was made after due consideration of all rights involved, and, if wrong or improper, are so through error in judgment and not through intention. Wherefore it appears that the plaintiff must rest his right to relief entirely upon the proposition that the ruling of the general committee of adjustment violated the constitution and by-laws of the order and thereby operate unlawfully to deprive him and others similarly situated of their lawful seniority and territorial rights and the profits and advantages flowing therefrom.
The pertinent provisions of the constitution and by-laws establishing authority to fix the territorial and seniority rights of members and their rights of appeal are found in sections 27, 28, 29, 34, and 35 of the standing rules, as follows:
"Section 27. Any action taken by a General Chairman or a General Committee of Adjustment on any system shall stand as law for all members and Divisions on said system until repealed by the General Committee, or in accordance with provision for appeals in Section 28, Standing Rules. * * *
*949 "Sec. 28. An appeal may be taken from the decision of the General Committee of Adjustment or the Chairman to the members of the system, if made within ninety days from the date of such decision, and a majority vote of members on said system shall be final. * * *
"Sec. 29. All appeals from the General Committee of Adjustment on all settlements shall first be appealed to the Grand Chief on points of law involved for his decision before they can be entertained by the Grand Body."
"Sec. 34. (a) No new business will be entertained by a General Committee of Adjustment unless sent under the seal of Divisions interested.
"(b) The General Committees of Adjustment shall have full power to settle all questions of seniority and rights to runs and jurisdiction of territory that are presented to them, and their decision shall be final unless, on an appeal to the membership, their decision is repealed by a majority vote. (This law is effective July 12th, 1927.)
"Sec. 35. When a question of jurisdiction of territory or seniority arises between the members themselves or two or more Divisions that cannot be amicably adjusted by such Divisions, said question shall, with all the facts in the premises, be referred to the General Committee of Adjustment who shall rule on the matter and such ruling shall stand as a law, subject to appeal as per Section 28 of the Standing Rules. * * *"
It is well established as a general principle that courts will not interfere with or review the decisions of the authorized tribunals of a voluntary association in the absence of a showing of fraud, collusion, or arbitrariness. Gonzalez v. Roman Catholic Archbishop of Manila, 280 U. S. 1, 50 S. Ct. 5, 74 L. Ed. 131; Engel v. Walsh, 258 Ill. 98, 101 N. E. 222, 45 L. R. A. (N. S.) 353; Simpson v. Grand International Brotherhood of L. E., 83 W. Va. 355, 98 S. E. 580; Jetton-Dekle Lumber Co. v. Mather, 53 Fla. 969, 43 So. 590; International Hod Carriers' Building & Common Laborers' Union of America, Local No. 426, v. International Hod Carriers' Building & Common Laborers' Union of America, Local No. 502, of International Hod Carriers' Building & Common Laborers' Union of America et al., 101 N. J. Eq. 474, 138 A. 532; Mayer v. Journeymen Stone-Cutters' Association, 47 N. J. Eq. 519, 20 A. 492.
In section 91 of Oakes on Organized Labor and Industrial Conflicts, the principle is stated somewhat more broadly as follows: "Section 91: Ordinarily the courts will not interfere with the internal affairs of the union so as to settle disputes between the members, or questions of policy, or internal management. They will intervene only when civil or property rights are involved and then only when there has been bad faith or fraud, or a question of public policy is involved, or the constitution or by-laws of the union have been violated by the acts of which complaint is made. They will not overrule the decision of a union tribunal merely because of a difference of opinion as to the merits."
Since no question of public policy or of bad faith appears from the plaintiff's bill, his case rests solely on the allegation that the ruling in question constituted a violation of the constitution and by-laws of the organization. An analysis of this question shows that the violation complained of, if any, is a violation of the rules of practice and procedure within the order as laid down by the constitution and by-laws rather than a violation of provisions affecting the substantial rights of the plaintiff. That the general committee of adjustment had the right under the constitution and by-laws of the organization either to allow or not to allow foreign territory to be prorated in fixing territorial and seniority rights between divisions cannot be questioned. Whether it was proper for it to make the ruling complained of allowing foreign territory to be prorated in view of its earlier ruling to the contrary, without repealing such earlier ruling, presents a question of procedure and practice rather than of substance. The right of the general committee of adjustment to repeal its former ruling, if necessary, is recognized in section 27 of the standing rules. The method of repeal is provided in section 29 of the rules of order. In view of this specific provision, does the enactment of a ruling which is in direct conflict with a former ruling operate to repeal such former ruling? Was it necessary, under the facts before the general committee of adjustment, that the former ruling be repealed before the new ruling could lawfully be made? Or, in view of the new situation which the committee found to exist because of the abolishment of Gale as a terminal, was it proper that the controversy be treated as a new one not controlled by the committee's former ruling? The organization, by its constitution and by-laws, had constituted officers and tribunals to pass upon these questions of order and procedure, and they were duly passed upon by such duly constituted officers and *950 tribunals. These were strictly questions of interpretation and construction of the constitution and by-laws of the union. That the courts will not review the correctness of the interpretation fairly placed upon the constitution and by-laws of a voluntary association by its duly authorized tribunals, particularly where only a procedural or jurisdictional question is involved, seems to be the settled rule. Burke v. Monumental Division, B. of L. E. (D. C.) 273 F. 707; Pratt v. Amalgamated Ass'n of Street & Elec. Ry. Employees of America, 50 Utah, 472, 167 P. 830; Long et al. v. B. & O. Railroad Co., 155 Md. 265, 141 A. 504; Simpson v. B. of L. E., supra. No reason here appears for departing from the usual rule, wherefore it would seem improper for the court to take jurisdiction of this case under the facts shown by the bill.
Another contention urged under the defendants' motions to dismiss which goes to the sufficiency of the bill is that the allegations of the bill and the contents of the exhibits made a part thereof show that the plaintiff did not exhaust all his remedies within the order before filing his suit for relief in equity. Courts will not take jurisdiction over controversies between a voluntary association and one of its members until the member has exhausted all remedies provided within the association. Engel v. Walsh, supra; Moody v. Farrington, 227 Ill. App. 40; Crisler v. Crum, 115 Neb. 375, 213 N. W. 366; Loeffler v. Modern Woodmen of America, 100 Wis. 79, 75 N. W. 1012; Oakes on Organized Labor and Industrial Conflicts, § 63; 24 Cyc. 828.
From an examination of the above-quoted sections of the constitution and by-laws which are made a part of the plaintiff's bill it is apparent that two methods of appeal from decisions of the general committee of adjustment were provided and both were open to the plaintiff. Each afforded a remedy. Failure to use either amounted to a failure to exhaust his remedies within the order. One cannot read those provisions of the constitution and by-laws without being impressed with the thought that it was the purpose of the organization that the control of the seniority and territorial rights of the members should first be exercised by the general committee of adjustment, but that the membership should be the ultimate and final arbiters of the seniority and territorial rights of the members of the union. The plaintiff's bill shows that the plaintiff did not appeal to the membership. By failing to give the members an opportunity to act in his controversy, the plaintiff precluded himself from an available remedy, whereby, it would appear, the equities of his contention would have been most certain to have been understood and given due consideration. Regardless of whether the tribunals of the organization were in error in their procedure in the case, the plaintiff had an opportunity to have any error obviated by appealing to the membership on the merits of the controversy, and of this opportunity he did not avail himself. Having failed to do this, he cannot now ask the courts to take jurisdiction of his case to determine the correctness of the procedural method followed by the tribunals of the organization in arriving at the decision, when it appears that the substance of the decision was within their constitutional power.
The plaintiff also relies upon an alleged violation of an agreement between the members of the brotherhood and the Missouri Pacific Railroad with reference to seniority rights and particularly of that paragraph of the agreement which reads as follows:
"h. When runs or work extend into or over one or more territories, the engineers affected will be assigned to run out the mileage or work on a pro rata basis under methods approved by the Superintendent and Local Chairman or General Chairman."
Plaintiff alleges that the method of assigning the mileage or work between Poplar Bluff and Dupo, in compliance with the ruling of the general committee of adjustment complained of, has never been approved by the superintendent of the railroad company, but has been permitted to go into effect without such approval, and that this constitutes an actionable violation of the agreement by the railroad company. It is sufficient to dispose of this contention to say that the acquiescence of the railroad company and its superintendent in the application of the ruling to the assignment of its engineers "to run out the mileage or work" in question is equivalent to an approval of the method by the superintendent, and therefore does not constitute a violation of the agreement by the railroad company.
In view of the conclusions above stated, I find it unnecessary to pass upon the further contention of the defendants that seniority rights of a member of a labor union do not constitute property rights of such a nature as to justify the interference of a court of equity in the internal administration of the affairs of the union through its authorized officers and tribunals.
*951 For reasons heretofore pointed out, I find that the plaintiff's bill does not state facts constituting grounds for equitable relief, and therefore it must be and it is hereby dismissed at the cost of the plaintiff.


732 F.2d 974
116 L.R.R.M. (BNA) 2131, 235 U.S.App.D.C. 372,100 Lab.Cas.  P 10,980
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.The WASHINGTON STAR COMPANY, Respondent.
No. 83-1920.
United States Court of Appeals,District of Columbia Circuit.
April 24, 1984.

On Petitioner's Application for Summary Entry of a Judgment Enforcing Its Order.
Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., for petitioner.
Betty Leach, Richard N. Appel, Washington, D.C., and Lawrence D. Levin, for respondent.
Before WILKEY and MIKVA, Circuit Judges, and McGOWAN, Senior Circuit Judge.
Opinion PER CURIAM.

PER CURIAM:

1
On December 21, 1981, the General Counsel of the National Labor Relations Board ("NLRB" or "the Board") issued a complaint and notice of hearing charging The Washington Star Company ("the Star") with violations of the National Labor Relations Act ("NLRA" or "the Act").  Trial was held on these charges before an Administrative Law Judge, which resulted in a finding that the Star had violated the Act.  On March 21, 1983, the case was transferred to the Board.  The Board established by order of April 12, 1983 a filing date of April 29, 1983 for the Star's exceptions to the Administrative Law Judge's decision.  On Friday, April 29, 1983, after business hours, the Star mailed its exceptions to the NLRB.  The filing was postmarked that same day, but was not received by the Board until Monday, May 2, 1983.

2
The Board rejected the Star's exceptions as untimely filed.  On June 1, 1983, the Board rejected the Star's Motion for Reconsideration.  On June 7, 1983, the Board issued an order adopting the findings and conclusions of the Administrative Law Judge.  The Board now seeks enforcement of this order.  In turn, the Star asks us to rule that the Board abused its discretion in refusing to accept the exceptions and asks us either to accept the exceptions for consideration in this enforcement proceeding or to remand this matter to the Board with instructions to consider the Star's exceptions and to render a decision on the merits.

3
A party seeking to file exceptions to a decision must do so within twenty days from the date of the order transferring the case to the Board or within such further period as the Board may allow.  29 U.S.C. Sec. 160(c) (1976) and 29 C.F.R. Sec. 102.46(a) (1983).  In the event that no timely or proper exceptions are filed, the findings, conclusions and recommendations of the Administrative Law Judge automatically become the decision and order of the Board and all objections and exceptions thereto shall be deemed waived.  29 C.F.R. Sec. 102.48(a) (1983).  When the Act or any of the regulations promulgated thereunder require a filing with the Board in any proceeding, such filing must be received by the Board before the close of business of the last day of the time limit set for such filing.  29 C.F.R. Sec. 102.114(b) (1983).

4
Section 10(e) of the Act, 29 U.S.C. Sec. 160(e) (1976), grants the Board the power to petition the United States Court of Appeals for the District of Columbia for enforcement of its orders.  Section 10(e) provides this court jurisdiction over such a proceeding and the power to order on the pleadings, testimony and proceedings set forth in the transcript "a decree enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of the Board.  No objection that has not been urged before the Board ... shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances."

5
There is no dispute that the Star's filing was late.  Nor is there any dispute that the normal consequence is waiver of the untimely exceptions.  The issue presented is whether this harsh result is appropriate under these circumstances.

6
A counsel's lack of familiarity with the NLRB's regulations alone is not such an excusable circumstance.    NLRB v. Good Foods Manufacturing & Processing Corp., 492 F.2d 1302, 1305 (7th Cir.1974);  NLRB v. Izzi, 343 F.2d 753, 755 (1st Cir.1965).  When, however, good faith efforts to comply with Board regulations are made and no prejudice would result to any party, courts as well as the Board have excused untimely filings.    See, e.g., NLRB v. Central Mercedita, Inc., 273 F.2d 370 (1st Cir.1959);  In New York Sheet Metal Works, Inc., 243 NLRB 967 (1979);  World Publishing Co., 220 NLRB 1065 n. 2 (1975).

7
In NLRB v. Central Mercedita, Inc., 273 F.2d 370 (1st Cir.1959), the First Circuit held that the Board had acted arbitrarily in defaulting a party because its exceptions were filed "only two days late".  The court accordingly refused to grant the Board's petition for summary enforcement of its order.  In that instance, counsel for respondent had failed to file timely exceptions with the Board because of the urgent need to prepare briefs for appeal in three other matters.  Counsel petitioned the NLRB for an extension of time, but was granted less than half the requested extension.  The First Circuit noted that these circumstances did not present the normal situation where the respondent makes no attempt to file exceptions on time and offers no excuse for the failure.  "On the contrary, the respondent here filed its exceptions with the Board but did so two days late for reasons which seem on their face to be entirely adequate."    273 F.2d at 372.

8
In its initial filings, the NLRB argued that the extraordinary circumstances exception was strictly limited to cases involving a late filing due to clearly unavoidable conditions or the Board's own negligence.  The Board urged that this was a simple case of an attorney misreading the NLRB regulation on filing deadlines.  The Star's response indicated, however, that this matter was not the simple summary enforcement case presented by the NLRB.  The Star had prepared a thirty-three page brief in advance of the filing date and had taken steps to ensure timely filing in the belief that postmarking the filing on or before the due date was the required procedure to make an effective filing with the Board.1   Difficulties arose, however, in the final typing, indexing and pagination of the brief.  This delayed the Star's filing until the due date.  Realizing that time was critical, the Star had the filing taken by messenger to the main Washington Post Office to insure that it would be postmarked on the due date.  It did this even though it could have instructed the messenger to deliver it directly to the NLRB.  Because the Star believed it was necessary under the Board's regulations to secure a postmark to meet the filing requirements it took the action it did.  Thus, the filing which was due at the NLRB by the close of business on Friday was not received there until the following Monday morning.  As a consequence, the charging parties received its notice of the exception prior to the date it might have received it if the regulations had been strictly followed--a copy of the notice filed with the Board on the day prescribed and a copy sent to the charging party by mail on that date.  While this does not cure the untimely filing it does exemplify the total absence of prejudice to the parties in interest.

9
After reviewing the initial filings of the parties, we recognized that this case did not quite fit into any neat characterization.  On the one hand, the untimely filing could not be attributed to a clearly unavoidable condition nor was the NLRB implicated as a cause of the delay.  Yet, on the other hand, this was also not the case where a respondent had entirely neglected to file exceptions or had filed so late that the filing could not be regarded as in good faith.  Indeed, here the Star clearly acted in good faith and the de minimis delay that did result caused no prejudice to any party.  Accordingly, we directed the parties to file supplemental memoranda addressed to the question:

10
What specific policy concerns support or militate against a narrow interpretation of the statutory exception to the filing of timely objections because of "extraordinary circumstances" set out in 29 U.S.C. Sec. 160(e) (1976)?

11
The NLRB's response correctly noted that the Board has broad discretion in making and applying its own procedural regulations (such as filing deadlines) and that reviewing courts have generally refused to set aside the Board's construction of its own rules unless such construction was arbitrary.  Therefore, the NLRB argued, that because the "extraordinary circumstances" language does not enlarge a court's power of review, this Court must defer to the Board's construction.  The Board did not point to any particular policy which requires such a strict interpretation, nor did it reconcile this interpretation with deviations therefrom which the Board and the courts have previously employed to avoid application of such a strict construction of the Board's filing rules.  In contrast, the Star called to the attention of the Court an important policy consideration which argued against adoption of the narrow interpretation of Section 10(e) urged by the Board.  The Star contended that the underlying policy of the Act--to resolve unfair labor practices on their merits2--argues against a narrow interpretation of Section 10(e).  Indeed, the Star had previously called the court's attention to instances where the Board itself had accepted late filings under similar circumstances in order to effectuate this underlying policy of the Act.    See, e.g., In New York Sheet Metal Works, Inc., 243 NLRB 967 (1979) ("[I]t would effectuate the policies of the Act to apply liberally our filing deadlines in this case.").

12
The NLRB's insistence on strict adherence to its filing regulations in that narrow category of cases where a party makes a good faith, though mistaken, effort on the due date to file by mail is arbitrary when no prejudice would accrue to any party.  The NLRB admits that it accepts filings mailed one day before the due date, even if they do not reach the Board's offices until after that date, since it acknowledges that the party made a good faith effort to comply.  See Response of the NLRB to the Star's Opposition to the Application for Summary Entry of a Judgment Enforcing its Order at 2.  Indeed, contrary to the strict application of its filing requirements the Board urges here, it has in the past been willing to waive them in circumstances where parties demonstrated less good faith than the Star did here.    See, e.g., St. Bernadette's Nursing Home, 234 NLRB 835 n. 1 (1978) (filings mailed in Philadelphia on January 4 and due in Washington on January 5 accepted though arrived late because "in the normal course, they would have been delivered" on the due date);  Magic Chef, Inc., 181 NLRB 1136 n. 1 (1970) (exceptions filed over two weeks late accepted because union failure to file in timely manner was an "oversight" and no prejudice would result to any party).  Given the Board's record of inconsistent application of the filing deadline, we find the decision of the Board here puzzling to the point of arbitrariness.    See Cappadora v. Celebrezze, 356 F.2d 1, 6 (2d Cir.1966) (Friendly, J.)  ("[a]nd once appropriate rules have been established, the discretion conferred in day to day administration cannot have been assumed to extend to unreasonable deviation from such rules on an ad hoc basis at the whim of the Administration," lest it constitute agency action which is arbitrary, capricious and an abuse of discretion under the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A)).  See generally Note, Violations by Agencies of their Own Regulations, 87 Harv.L.Rev. 629 (1974).

13
If the Board articulates its reasons for a strict rule that requires filings to be in hand on the due date and announces that it will apply this rule uniformly or with specific stated exceptions then this court would be obliged to defer to the Board's discretion and authority.  Under such circumstances there would be no reason not to enforce the Board's order on request.  The present sometimes-yes, sometimes-no, sometimes-maybe policy of due dates cannot, however, be squared with our obligation to preclude arbitrary and capricious management of the Board's mandate.  See 5 U.S.C. Sec. 706(2)(A) (1976).  We accordingly decline to enforce the Board's order and remand this matter to the Board for consideration of the Star's exceptions in the first instance as required by South Prairie Construction Co. v. Operating Engineers, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976).  We, of course, express no opinion on the merits of the exceptions.

1
 This confusion is a product of the opaque captions and curious wording of the pertinent NLRB regulations.  Compare 29 C.F.R. Sec. 102.113(a) (1983):
Sec. 102.113 Date of Service;  filing of proof of service.
(a) The date of service shall be the day when the matter served is deposited in the United States mail or is delivered in person, as the case may be.  In computing the time from such date, the provisions of Sec. 102.114 apply.
....
with 29 C.F.R. Sec. 102.114(b) (1983):
Sec. 102.114 Time;  additional time after service by mail.
....
(b) When the act or any of these rules require a motion, brief, exception, or other paper in any proceeding, such document must be received by the Board or the officer or agent designated to receive such matter before the close of business of the last day of the time limit, if any, for such filing or extension of time that may have been granted.

2
 In fact, the Board's own regulations provide that its rules "shall be liberally construed to effectuate the purposes and provisions of the Act."    29 C.F.R. Sec. 102.121 (1983)