text:
    UNITED STATES of America, Appellee, v. Lawrence Eugene WEBER, Appellant.
    No. 73-1089.
    United States Court of Appeals, Eighth Circuit.
    Argued March 26, 1973.
    Submitted May 18, 1973.
    Decided May 21, 1973.
    Jack S. Nordby, St. Paul, Minn., filed appendix and briefs for appellant.
    Robert G. Renner, U. S. Atty., and John M. Lee, Asst. U. S. Atty., Minneapolis, Minn., filed printed brief for ap-pellee.
    Before MATTHES, Chief Judge, and LAY and STEPHENSON, Circuit Judges.
   PER CURIAM.

Lawrence Eugene Weber has appealed from his conviction of possession and sale of a quantity of LSD. He presents a two-pronged issue: (1) denial of his Fifth Amendment due process right caused by the government’s alleged deliberate pre-indictment delay and (2) denial of his Sixth Amendment right to a speedy trial resulting from the alleged lengthy delay between the indictment and the arrest and trial.

In chronological order we enumerate the pertinent events.

1. On April 1, 1970, defendant sold 514 LSD tablets to an agent of the Bureau of Narcotics and Dangerous Drugs.

2. On November 5, 1970, a four count indictment was returned.

Counts I and II were directed against Weber and Jack J. Conrey. Counts III and IV involved Jack J. Conrey and Guy Coney, also known as Sebastian.

3. On November 23, 1970, the Assistant United States Attorney informed the court that appellant Weber and Jack J. Conrey were fugitives and that defendant Coney had been served with a warrant in California and had requested a continuance.

4. On November 10, 1971, upon the request of the United States Attorney, the indictment was dismissed as to Guy Coney.

5. In August, 1972, during an unrelated investigation in St. Paul, Minnesota, police officers observed appellant Weber. His arrest followed.

6. On August 22, 1972, appellant Weber filed six motions including a motion to dismiss the indictment in the United States District Court. The motion to dismiss did not raise the issue of the failure of the government to grant him a speedy trial and did not complain about the delay between the date of filing of the indictment and the arrest and trial.

7. Appellant was tried on October 2 and 3, 1972, and found guilty under both counts 1 and II.

We find no merit in appellant’s contentions and affirm.

RIGHT TO SPEEDY TRIAL —POST INDICTMENT

The right to a speedy trial attaches where there is “either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge. . ” United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed. 2d 468 (1971). See also Foley v. United States, 290 F.2d 562 (8th Cir.), cert. denied, 368 U.S. 888, 82 S.Ct. 139, 7 L.Ed. 2d 88 (1961). Thus, in our view, the Sixth Amendment right to a speedy trial can only have application in this case to the period of time from indictment, November 5, 1970, to apprehension on August 2, 1972. Any suggestions that a delay occurred between the date of arrest in August, 1972, and date of trial in October, 1972, is patently frivolous.

In Barker v. Wingo, 407 U.S. 514, 525, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1971), the Supreme Court, in an exhaustive review of the speedy trial issue, adopted a balancing test which requires consideration of four factors: (1) the length of delay, (2) the reason for delay, (3) defendant’s assertion of his right to a speedy trial, (4) the prejudice to the defendant.

Although there was a delay of 21 months from the time of the filing of the indictment to the date of Weber’s apprehension, we are fully satisfied that the delay was directly caused by appellant himself. He and Conrey had fled and were fugitives from justice. There is nothing in this record to warrant a holding, as suggested by appellant, that the government was dilatory in not making a diligent effort to locate and apprehend Weber. Certainly there is no evidence of a “diligent attempt to delay the trial in order to hamper the defense.”

We observe that in Barker, supra, the failure of the defendant to assert the right makes it difficult for a defendant to prove he was denied a speedy trial. Id. at 532, 92 S.Ct. 2182. Thus, while Hot requiring an assertion of the right as an absolute rule, the court announced that a defendant has some responsibility to assert a speedy trial. Here it is significant that appellant’s attorney filed six pre-trial motions after appellant was apprehended, and in none of them did he complain of having been denied a speedy trial.

Although appellant alleges he was prejudiced because of the lapse of time, the record fails to support this consideration. In any event we have difficulty in adopting the rationale that an accused may purposefully obstruct justice by becoming a fugitive and then complain because of the lapse of time between the filing of the indictment and the date of the arrest.

Appellant .also complains because of the delay of approximately 7 months between the time he sold the LSD tablets, April 1, 1970, and the date the indictment was filed November 5, 1970. Applicable here is the pronouncement in Marion that “No actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them.” Id. at 325, 92 S.Ct. at 466. We dealt with this identical issue in Foley v. United States, supra. See also Mack v. United States, 326 F.2d 481 (8th Cir.), cert. denied, 377 U.S. 947, 84 S.Ct. 1355, 12 L.Ed.2d 309 (1964). Having carefully considered the record, appellant’s contentions and the applicable law, we are satisfied that appellant was not denied due process and was not denied a speedy trial.

The judgment is affirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    John L. MANNING, and Carlyn T. Manning, husband and wife, Petitioners-Appellees, v. Joaquin G. BLAZ, Director of Revenue and Taxation Government of Guam, Defendant-Appellant. GENERAL INSURERS, INC., Petitioner-Appellee, v. Joaquin G. BLAZ, Commissioner of Revenue and Taxation, Respondent-Appellant.
    Nos. 72-1204, 72-1206.
    United States Court of Appeals, Ninth Circuit.
    April 5, 1973.
    Rehearing and Rehearing En Banc Denied July 5, 1973.

      David Carmack (argued), Dept, of Justice, Washington, D. C., Vincent T. Ferez, Atty. Gen., Gerald E. Stinson, Asst. Atty. Gen., Agana, Guam, for defendant-appellant.
    W. S. Barrett (argued), Barrett, Fer-enz & Bramhall, Agana, Guam, for petitioners-appellees.
    David English Carmack, U. S. Atty. (argued), Scott P. Crampton, Asst. Atty. Gen., Tax Div., Dept, of Justice, Washington, D. C., for amicus curiae.
    David English Carmack, U. S. Atty. (argued), Dept of Justice, Washington, D. C., Gerald E. Stinson, Asst. Atty. Gen., Agana, Guam, for respondent-appellant.
    W. S. Barrett (argued) Barrett, Fer-enz & Bramhall, Agana, Guam; Thomas J. Nolan, Agana, Guam, for petitioner-appellee.
    Before CHAMBERS, ELY, and WALLACE, Circuit Judges.
   PER CURIAM:

These appeals involve the applicability of certain sections of the Internal Revenue Code to transactions which have their taxable locus in Guam. By virtue of the Organic Act of Guam, Congress gave Guam a tax structure of its own, patterned closely after the tax system of the United States, but with collections made by and revenues going to the government of Guam. After amendments in 1958, the final effect is that the Internal Revenue Code is in virtual full force and effect in Guam.

The Mannings are citizens of the United States and non-residents of Guam. General Insurers has among its shareholders at least three non-residents of Guam. The government of Guam denied the Mannings the right to file a joint return, and the right to a standard deduction. It denied General Insurers the right to a subchapter S election. The taxpayers filed these cases in the district court, seeking a redetermination of their deficiencies. That court granted a summary judgment in their favor, and the government appealed. We affirm.

Non-resident aliens in the United States and Guam do not enjoy the tax advantages these taxpayers sought. Thus, the sole issue in this appeal is whether a non-Guamanian United States citizen, not a resident of Guam, is to be treated as a non-resident alien for Guamanian tax purposes.

We previously considered the right of non-resident aliens of Guam to file a Guamanian joint return in Flores v. Government of Guam, 444 F.2d 284 (9th Cir. 1971). There we noted that the government’s ability to classify Flores as a non-resident alien depended upon the availability of I.R.C. § 932. However, we held that § 932 was inapplicable to Guam, and therefore Flores could not be denied the right to a joint return by virtue of that section. 444 F.2d at 288-89.

The rule of Flores controls the Mannings’ right to file a joint return. Furthermore, we perceive no basis for distinction of the claims for a standard deduction and a Subchapter S election since the denial of these claims was also founded upon a finding of non-resident alien status.

Affirmed.

      . Act of Aug. 1, 1950, ch. 512, § 31, 64 Stat. 392 (48 U.S.C. § 1421i).

      . Act of Aug. 20, 1958, Pub.L.No.85-688, § 1, 72 Stat. 681.

      . Int.Rev.Code of 1954, § 6013(a)(1).

      . Int.Rev.Code of 1954, § 142(b)(1).

      . Int.Rev.Code of 1954, § 1371(a)(3).

      . The recent passage of Pub.L.No.92-606, 86 Stat. 1494 (Oct. 31, 1972), adopted a special tax system for Guam and amended Code Section 932. These changes will eliminate the problems presented by these cases.
      Appellant principally relies upon Sayre & Co. v. Riddell, 395 F.2 407 (9th Cir. 1968) (en banc). That case upheld the classification of a Hawaii company as a foreign corporation for Guamanian tax purposes. Flores, however, concerned individuals and is controlling here.


text:
    John PARKER, Plaintiff-Appellant, v. Ray GRAVES, Defendant-Appellee.
    No. 72-2265.
    United States Court of Appeals, Fifth Circuit.
    June 13, 1973.
    John Parker, pro se.
    W. C. O’Neal, Gainesville, Fla., for defendant-appellee.
    Before GOLDBERG, AINSWORTH and INGRAHAM, Circuit Judges.
   PER CURIAM:

John Parker, a second-year law student, was employed by the University of Florida Athletic Association as a dormitory advisor, assistant track coach and meal checker at the athletic training table. He was discharged from his duties and sought relief by bringing a civil rights action against Ray Graves, the athletic director of the University. From an adverse decision in the trial court, D.C., 340 F.Supp. 586, Parker timely pursued the present appeal.

At the outset we are confronted with the determination of whether or not a motion to dismiss the complaint for failure to state a claim for which relief could be granted and for a lack of subject matter jurisdiction should have been granted.

The caption of the complaint names the defendant in his individual capacity without reference to his official capacity as an agent of the State University system. An action under 42 U. S.C. § 1983 does not lie as against a private person in his individual capacity. It is only where the person acts to deprive another of his federal rights under color of state law that § 1983 provides authority for a federal claim. An action against a state official is not authorized by § 1983 where the official has acted in a purely private individual capacity.

A person’s capacity need not be pled except to the extent required to show the jurisdiction of the court. Fed.R.Civ.P. 9(a). Failure to allege the official capacity in the caption is merely a formal error and not a fatal defect. 5 Wright and Miller, Federal Practice and Procedure, § 1321 (1969). The allegations in the complaint must be examined in order to determine the nature of the plaintiff’s cause of action.

In his pro se complaint, Parker alleged that his dismissal was premised on constitutionally impermissible reasons and was procured by the defendant acting under color of state law in his official capacity as the University’s athletic director. The allegations taken as a whole bring the case within the authorization of 42 U.S.C. § 1983, and therefore the motion to dismiss was properly denied.

The district court entered findings to the effect that the plaintiff was discharged for being remiss in his assigned duties and ineffective as an employee. The findings are based on conflicting evidence and we have determined that they are not clearly erroneous.

The judgment of the district court is affirmed.

      . The trial court did strike two allegations of causes of action.


author: WALLACE, Circuit Judge:

text:
    Marcia W. SEAMAN, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 26736.
    United States Court of Appeals, Ninth Circuit.
    April 20, 1973.

      Wareham Seaman, Jr., Sacramento, Cal. (argued), Marcia W. Seaman, Atty., for petitioner-appellant.
    Richard Farber (argued), Scott P. Crampton, Asst. Atty. Gen., Meyer Roth-wacks, Loring W. Post, Robert S. Watkins, Tax Div., Dept, of Justice, Washington, D. C., for respondent-appellee.
    Before ELY and WALLACE, Circuit Judges, and KELLEHER, District Judge.

       Honorable Robert J. Kelleher, United States District Judge, Los Angeles, California, sitting by designation.

   WALLACE, Circuit Judge:

In the beginning of 1967, taxpayer, Marcia Seaman, was legally married. On March 22, 1967, she received an interlocutory decree of divorce according to then California law. The decree contained the following notice:

This is not a judgment of divorce. The parties are still husband and wife, and will be such until a Final Judgment of Divorce is entered after one year from the date of service of copy of summons and complaint upon the defendant spouse.

She obtained a final judgment of divorce in 1968.

Taxpayer worked as a stenographer during 1967, the tax year in question. To facilitate her employment, she spent at least $900 for the daytime care of her two children. She filed an individual return for 1967 and took a $900 childcare deduction. The commissioner disallowed the deduction and the taxpayer filed a petition with the Tax Court for redetermination of the deficiency. After the court sustained the commissioner’s determination, she appealed. We affirm.

In 1967, the applicable code section was 26 U.S.C. (Int.Rev.Code of 1954) § 214. That section generally allowed a deduction for the expenses of child care necessary to allow the earning of income. In the case of a working wife, the deduction was available only if the spouses filed a joint return. Marcia Seaman and her husband did not file a joint return.

Thus she was not eligible for the deduction unless she could avail herself of one of the two exceptions contained in § 214(d)(5). One of these applied only if the woman had been deserted by her husband and she had not known his whereabouts at any time during the tax year. Marcia Seaman stipulated that she had known her husband’s whereabouts and thus this exception was unavailable to her.

The other exception would have applied if Mrs. Seaman had been “legally separated from her spouse under a decree of divorce or of separate maintenance at the close of the taxable year . . . § 214(d)(5)(A). Since the taxpayer does not argue that she was legally separated under a decree of separate maintenance, she must have had a “decree of divorce” to entitle her to the deduction.

In California, an interlocutory decree of divorce does not dissolve the marriage. Brown v. Brown, 170 Cal. 1, 147 P. 1168 (1915); Paulus v. Bauder, 106 Cal.App.2d 589, 235 P.2d 422 (1951). The dissolution only occurs upon entry of the final decree. Olson v. Superior Court, 175 Cal. 250, 165 P. 706 (1917). We have held that since a California interlocutory decree does not dissolve the marriage, the spouses are still married for federal tax purposes. Riddell v. Guggenheim, 281 F.2d 836, 842-843 (9th Cir. 1960); Commissioner v. Ostler, 237 F.2d 501 (9th Cir. 1956); United States v. Holcomb, 237 F.2d 502 (9th Cir. 1956). Although none of those cases construed section 214, the language in the various sections is virtually identical. In good conscience, we cannot distinguish them. As we see no compelling reason to depart from our prior decisions, we must hold that Marcia Seaman was not entitled to a child-care deduction for 1967.

Taxpayer argues that the leading case in this area, Eccles v. Commissioner, 19 T.C. 1049, aff’d, 208 F.2d 796 (4th Cir. 1953), was wrongly decided and that our cases, which relied upon Eccles, should be overruled. Although her arguments are impressive, they are more properly addressed to the Congress. Tax deductions are a matter of legislative grace. We noted in Ostler that “[i]f the rules on the tax consequences of interlocutory divorces are to be changed, it should be done by legislative action.” 237 F.2d at 502. Our duty is to interpret the law, not to create it. Unfortunately, Congress did not modify the pertinent statute until after 1967, to the disadvantage of Marcia Seaman.

Affirmed.

      . The section was amended in 1971. Act of Dec. 10, 1971, Pub.L. No. 92-178, § 210(a), 85 Stat. 518. As amended, the section would now allow the deduction this taxpayer claimed for 1967. The amendment effected this change by adopting the definition found in Int.Rev.Code of 1954, § 143(b) (1).

      . See n. 1, supra.


author: PER CURIAM.

text:
    Richard E. FOWLER, Appellant, v. Charles WOLFF, Jr., Warden, Nebraska Penal Complex, Appellee.
    No. 72-1740.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 16, 1973.
    Filed June 7, 1973.

      Richard E. Fowler, filed typewritten briefs pro se.
    Clarence A. H. Meyer, Atty. Gen., and Harold S. Salter, Deputy Atty. Gen., Claims Div., State of Nebraska, Lincoln, Neb., filed printed brief for appellee.
    Before HEANEY and ROSS, Circuit Judges, and BENSON, District Judge.

       District of North Dakota, sitting by designation.

   PER CURIAM.

Richard E. Fowler appeals from a decision dismissing his civil rights action.

Fowler brought this action for monetary damages against Charles Wolff, Warden of the Nebraska Penal Complex; John Greenholtz, Chairman of the Board of Parole; Harold Smith, a member of the Board of Parole; and James Lyon, Records Officer of the Nebraska Penal Complex. Fowler alleged that the defendants had violated his constitutional rights: first, by paroling, rather than releasing, him from prison on January 3, 1971; and second, by failing to give him a hearing when his parole was revoked on January 10, 1971.

Fowler has presented essentially the same claims in several prior actions. His first action was dismissed on March 24, 1971, for failure to exhaust administrative remedies. His second action was dismissed on the merits on August 24, 1971. The defendants in the August 24th action were Maurice H. Sigler, Warden of the Nebraska Penal Complex, Greenholtz and Smith. The court, in its memorandum disposing of the second action, specifically discussed the question of whether Fowler was entitled to release, rather than parole, but it did not specifically discuss whether Fowler’s constitutional rights had been violated by the failure to accord him a hearing on his parole violation. No appeal was taken from the District Court’s order.

Thereafter, Fowler brought four additional actions, making essentially the same allegations. These were dismissed by the District Court as being frivolous and repetitious on June 13, 1972, August 2, 1972, September 11, 1972, and November 14, 1972. The last of these is the subject of this appeal.

Fowler argues that the trial court erred in dismissing his most recent action. We do not agree. As we have indicated, a review of the pleadings in each of the plaintiff’s actions shows that the two claims raised by the plaintiff in the present action have been raised by him in his five previous actions. Both claims were conclusively determined against the plaintiff by the District Court in its order of August 24, 1971, from which the plaintiff did not appeal. The plaintiff has had his day in court on these claims, and res judicata bars him from presenting them again. This is true even though the District Court’s memorandum of August 24, 1971, did not specifically discuss the failure of the parole board to accord the plaintiff a hearing ón his parole violation. Thomas v. Consolidation Coal Company, 380 F.2d 69, 80 (4th Cir.), cert. denied, 389 U.S. 1004, 88 S.Ct. 562, 19 L.Ed.2d 599 (1967); St. Lo Const. Co. v. Koenigsberger, 84 U.S.App.D.C. 319, 174 F. 2d 25, 27, cert. denied, 338 U.S. 821, 70 S.Ct. 66, 94 L.Ed. 498 (1949); Restatement of Judgments, § 68m.

The plaintiff contends that res judicata does not bar this action because of the addition of certain defendants not included in prior actions. The pleadings show that James Lyon, Records Officer of the Nebraska Penal Complex, and Charles Wolff, the Complex’s current warden, are the only defendants in the present action who were not defendants in the action dismissed on August 24, 1971. The relationship of Lyon and Wolff to the parties sued in the August 24th action is so close that their addition cannot change the fact that this present action is repetitious and barred by res judicata. Gambocz v. Yelencsies, 468 F.2d 837 (3rd Cir. 1972).

Affirmed.


author: DUNIWAY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Jeffery SALEM, Defendant-Appellant.
    No. 73-1184.
    United States Court of Appeals, Ninth Circuit.
    May 31, 1973.
    Ronald G. Borden, Menlo Park, Cal., for defendant-appellant.
    James L. Browning, Jr., U. S. Atty., Robert E. Carey, Jr., F. Steele Lang-ford, Asst. U. S. Attys., Chief, Crim. Div., San Francisco, Cal., for plaintiff-appellee.
    Before DUNIWAY and WRIGHT, Circuit Judges, and RUSSELL E. SMITH, District Judge.

       Honorable Russell E. Smith, United States District Judge, District of Montana, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

Salem was convicted of refusing to submit to induction into the Armed Forces, 50 U.S.C. App. § 462(a), and he appeals. He argues that because he had made out a prima facie case for a conscientious objector classification the local board was required to reopen his classification, Mulloy v. United States, 1970, 398 U.S. 410, 90 S.Ct. 1766, 26 L. Ed.2d 362. We affirm.

On November 5, 1969, Salem was classified 1-A. On February 3, 1970, he presented to his board a letter in which he requested a copy of Selective Service Form 150 for conscientious objectors. A copy of Form 150 was given to him. On the form was the notation that it was to be completed and returned within 30 days. On March 4, Salem requested additional time to complete and return the form, and was given ten more days. On March 16, the board, not having received the completed form from Salem, sent him an order to report for induction. On March 31, the board received the completed Form 150. On April 7, the board reviewed Salem’s file, and decided not to reopen his classification. On September 23, 1970, Salem refused to submit to induction.

When a registrant, after his board has mailed an order to report for induction to him, submits a claim that he is a conscientious objector, the board is not required to reopen whether the claim states a prima facie case or not. If the claim shows that the registrant’s views matured before he was ordered to report, it is barred by 32 C.F.R. 1625.3. If the claim shows that his views matured after the order to report was mailed, it is barred by the same regulation as interpreted in Ehlert v. United States, 1971, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 678. See United States v. Bloom, 9 Cir., 1971, 444 F.2d 1399. Salem is in just that situation.

Salem argues, however, that because his letter was received before he was ordered to report, his case is governed by Mizrahi v. United States, 9 Cir., 1969, 409 F.2d 1219. Mizrahi, however, is an exceptional case. There, Mizrahi’s letter asking for Form 150 was mailed to the board on February 26, and received on February 28; the order to report for induction was mailed the same day. On March 2, the board sent him Form 150, telling him to return it by March 8, which he did. We held that Mizrahi’s letter was to be treated as having been received before the order to report was sent to him, and that the completed Form 150 was to be treated as supplemental to the letter. We said:

“In these circumstances it must be deemed that appellant’s written request stated his claim as a conscientious objector and was received by the local board before it mailed to appellant its Order to Report for Induction.” Id. at 1224.

Our holding in Mizrahi amounts, in substance, to this: that once a board receives a request for Form 150, at least when the request states that the registrant is a conscientious objector, the registrant must be allowed time to file Form 150 before an order to report for induction is sent to him. If that is not done, the request will be treated as a claim, and the regulation, 32 C.F.R. 1625.3, will not bar it.

Salem’s case is different. After his letter was received, the board not only waited the full 30 days specified on the Form 150, but also extended the time, at Salem’s request, for another ten days. Only after that time expired did the board issue its order to report. The February 3 letter did not make out a prima facie case. United States v. Lawton, 9 Cir., 455 F.2d 328, cert. denied, 406 U.S. 960, 92 S.Ct. 2071, 32 L.Ed.2d 347 (1972); United States v. McKinley, 9 Cir., 1971, 447 F.2d 962; United States v. Lloyd, 9 Cir., 431 F.2d 160, cert. denied, 403 U.S. 911, 91 S.Ct. 2210, 29 L.Ed.2d 688 (1970). Assuming that the Form 150 did state a prima facie case, it came too late; the regulation applies.

Affirmed.

      . The letter reads :
      “Dear Draft Board:
      On the basis of certain ideals and, more important, certain beliefs which I hold, I feel it is appropriate for me to request at this time, your form concerning classification ‘Conscientious Objector.’
      Sincerely,

        /%/ J. Jeffery Salem”.


text:
    LOCAL UNION NO. 52, PLUMBERS AND STEAMFITTERS UNION, Plaintiff-Appellee, v. DANIEL OF ALABAMA et al., Defendants-Appellants.
    No. 72-2548.
    United States Court of Appeals, Fifth Circuit.
    June 5, 1973.
    John L. Cole, Birmingham, Ala., Homer L. Deakins, Jr., Robert N. Willis, Atlanta, Ga., for defendants-appellants.
    James Harold Evans, Montgomery, Ala., for plaintiff-appellee.
    Before WISDOM, DYER and INGRA-HAM, Circuit Judges.
   PER CURIAM:

Defendants, Daniel of Alabama (the general contractor) and Brown Mechanical Contractors, Inc. (the subcontractor), appeal from an order of the district court that required arbitration, but limited the arbitrable issues under the applicable collective bargaining agreements to whether Brown had acted arbitrarily or in bad faith, in the discharge of eleven union members. With the order thus limited, we affirm.

The narrow question before us is whether an employer can be compelled to arbitrate any aspect of a discharge which is based on a clause in a collective bargaining agreement that provides: “The Employer shall be the sole judge of the employee’s capabilities to perform work in a workmanlike manner.” The bargaining agreements also contained a no-strike clause and a clause compelling arbitration of all disputes (unless this last clause was in conflict with some other portion of the agreement).

Defendants recognize the national policy favoring the utilization of arbitration procedures to settle labor disputes (United Steelworkers v. Enterprise Wheel & Car Corp., 1960, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424; United Steelworkers v. Warrior & Gulf Navigation Co., 1960, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steelworkers v. American Manufacturing Co., 1960, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403), but correctly note that it cannot be ordered when a party has not agreed to submit a particular issue to arbitration (John Wiley & Sons v. Livingston, 1964, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898). They contend that the clause making them the sole judge of an employee’s ability to perform satisfactory work completely insulates from review by an arbitrator any decision of theirs to discharge an employee when this clause is relied upon. We conclude that there is no such absolute insulation on the facts before us.

The presence of a no-strike clause in a bargaining agreement requires at least a minimal quid pro quo from management. As the Supreme Court said in United Steelworkers v. Warrier & Gulf Navigation Co., supra, 363 U.S. at 583, 80 S.Ct. at 1353:

When ... an absolute no-strike clause is included in the agreement, then in a very real sense everything that management does is subject to the agreement, for either management is prohibited or limited in the action it takes, or if not, it is protected from interference by strikes.

Without some accountability under the bargaining agreements, Brown could discharge any employee and could avoid arbitration by merely phrasing the discharge in terms of the employee’s failure to perform properly. To avoid this interpretation of the otherwise clear language of the “sole discretion” clause before us, but, at the same time to protect a party’s right to withhold certain issues from the scope of arbitration, the accountability required on these facts must be limited to determining whether the employer acted in good faith, and not arbitrarily, in making the discharges. Cf. Palestine Telephone Co. v. Local 1506, Electrical Workers, 5 Cir. 1967, 379 F.2d 234; Fruit Packers, Local 760 v. Torvig Sealander Fruit Co., E.D.Wash.1958, 160 F.Supp. 623.

This limited approach to the arbitra-ble issues was precisely the approach taken by the district court. Moreover, instead of immediately ordering arbitration to determine whether Brown had acted arbitrarily or in bad faith, the court below ordered arbitration on these two issues only after the plaintiffs had introduced affidavits that placed the motivation for the discharges in question. Without such a showing an arbitration order would have been improper; with the affidavits before the district court, however, arbitration of the two issues was fully warranted.

Affirmed.


text:
    Bobbie J. HAMILTON, Petitioner-Appellant, v. STATE OF NEW MEXICO et al., Respondents-Appellees.
    No. 72-1877.
    United States Court of Appeals, Tenth Circuit.
    May 31, 1973.

      George E. Pino, Sp. Asst. Atty. Gen., has filed a motion to affirm on behalf of respondents-appellees.
    Jack L. Love, Fed. Public Defender, has filed a memorandum in opposition to summary affirmance and a response to motion to affirm on behalf of petitioner-appellant.
    Before LEWIS, Chief Judge, and PICKETT and McWILLIAMS, Circuit Judges.
   PER CURIAM.

This is an appeal from an order of the district court denying appellant’s application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Upon conviction of assault, appellant Bobbie Hamilton applied for an appeal bond, which was denied by both the sentencing court and the state supreme court. Appellant then sought federal habeas corpus relief to assert that his constitutional right to bail had been denied. There is a direct appeal now pending in the state court.

The real issue is whether appellant has a claim which is cognizable by federal habeas corpus. A state prisoner has no absolute federal constitutional right to bail pending appeal. Bloss v. Michigan, 421 F.2d 903 (6th Cir. 1970); United States ex rel. Fink v. Heyd, 408 F.2d 7 (5th Cir. 1969), cert. denied, 396 U.S. 895, 90 S.Ct. 192, 24 L.Ed.2d 172; United States ex rel. Klein v. Deegan, 290 F.Supp. 66 (S.D.N.Y.1968); United States ex rel. Siegal v. Follette, 290 F. Supp. 632 (S.D.N.Y.1968); Iles v. Ellis, 264 F.Supp. 185 (S.D.Ind.1967).

Federal courts do not sit as appellate courts to review the use or abuse of discretion of state courts in granting or withholding bail pending final appeal. Bloss v. Michigan, supra, 421 F.2d at 906. And, generally, denial of bail is not an available basis for seeking post-conviction relief. Corbett v. Patterson, 272 F.Supp. 602 (D.C.Colo. 1967). See also Sheldon v. Nebraska, 401 F.2d 342 (8th Cir. 1968).

We notified appellant that the court was considering summary affirmance and that appellee had filed a motion to affirm. We now have before us appellant’s memorandum in opposition to summary affirmance and his response to motion to affirm. Nonetheless, we have now carefully and thoroughly reviewed the files and records in this case, and are convinced that the district court’s denial of relief was proper.

Accordingly, the motion to affirm is granted and the judgment is affirmed.

Affirmed.


author: BREITENSTEIN, Circuit Judge.

text:
    MEDICAL DEVELOPMENT CORPORATION, Plaintiff-Appellee, v. INDUSTRIAL MOLDING CORPORATION, Defendant-Appellant. MEDICAL DEVELOPMENT CORPORATION, Plaintiff-Appellant, v. INDUSTRIAL MOLDING CORPORATION, Defendant-Appellee.
    Nos. 72-1504, 72-1505.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted March 26, 1973.
    Decided May 24, 1973.
    Rehearing Denied June 15, 1973.

      I. Daniel Stewart, Jr., Salt Lake City, Utah (Jones, Waldo, Holbrook & Mc-Donough, Salt Lake City, Utah, on the brief), for Medical Development Corp.
    W. David Pantle, Denver, Colo. (Dawson, Nagel, Sherman & Howard, Denver, Colo., and Hitchcock, Bowman & Mal-lano, Torrance, Cal., on the brief), for Industrial Molding Corp.
    Before BREITEN STEIN, Circuit Judge, DURFEE, Judge, Court of Claims, and DOYLE, Circuit Judge.

       Sitting by designation.

   BREITENSTEIN, Circuit Judge.

In this diversity action plaintiff Medical Development Corporation sued for damages and other relief claiming breach of contract and warranty, negligence, fraud, and other wrongs. Defendant Industrial Molding Corporation counterclaimed for unpaid balances of goods sold and other relief including a stay of the proceedings pending arbitration. Plaintiff’s motion for summary judgment was denied, and its appeal from this order is No. 72-1505. On plaintiff’s motion, the court permanently enjoined arbitration of certain disputes. No. 72-1504 is defendant’s appeal from the injunction.

All of the three contracts involved were made in California and covered goods manufactured by the defendant, a California corporation, in that state and sold to the plaintiff, a Utah corporation, F.O.B. Los Angeles. The first contract, made in September, 1969, related to two protype molds and contained an arbitration clause. In April, 1970, plaintiff gave defendant a purchase order for four additional molds, and defendant responded with a quotation confirmation. In May, 1970, another transaction between the parties related to production of plastic parts from the molds. A prime issue is whether the contracts relating to the April and May transactions contain arbitration clauses.

After this suit was filed, defendant demanded arbitration and moved to stay court proceedings pending arbitration. The court denied the stay. Plaintiff then moved for a stay of arbitration, and the court enjoined arbitration “pending resolution by this Court of whether the issues raised in this action should be referred to arbitration.” After much skirmishing by the parties, the court held a “partial trial on the issues of arbitration,” and ruled that the September transaction was subject to arbitration and that as to the April and May transactions there was no agreement to arbitrate. The court permanently enjoined arbitration of issues arising out of the April and May transactions. The appeal in No. 72-1504 attacks the permanent injunction.

We are concerned with an interlocutory order, not a final decision on the merits. The Federal Arbitration Act, 9 U.S.C. § 1 et seq., is applicable because the contracts evidence transactions in interstate commerce. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 401, 87 S.Ct. 1801, 18 L. Ed.2d 1270.

The threshold question is the appealability of the order enjoining arbitration. We recognize that the circuits are in disagreement as to the appealability of an order granting or denying a stay of arbitration. Compare Greater Continental Corp. v. Schechter, 2 Cir., 422 F.2d 1100, 1102-1103, and Lummus Co. v. Commonwealth Refining Co., 2 Cir., 297 F.2d 80, 84-96, cert. denied 368 U.S. 986, 82 S.Ct. 601, 7 L.Ed.2d 524, with Power Replacements, Inc. v. Air Preheater Co., 9 Cir., 426 F.2d 980, 982-983, and A. & E. Plastik Pak Co. v. Monsanto Co., 9 Cir., 396 F.2d 710, 713. See also New England Power Co. v. Asiatic Petroleum Corp., 1 Cir., 456 F.2d 183, 185-187; and Buffler v. Electronic Computer Programming Institute, Inc., 6 Cir., 466 F.2d 694, 699. This court’s decision in Hart v. Orion Insurance Co., 10 Cir., 427 F.2d 528, 529, concerned an order staying the district court’s proceeding pending arbitration, not an order concerning a request for a stay of the arbitration proceedings.

In the cited cases, the parties did not contest the existence of an arbitration clause in the agreements under consideration. Here, the issue is controlled by whether in fact there was an agreement to arbitrate. That matter was determined adversely to defendant and a permanent injunction issued. In these circumstances, we are not concerned with the concept that the Federal Arbitration Act fosters speedy arbitration or with the controversy over the applicability of 28 U.S.C. § 1292(a)(1) to an order granting or denying a stay of arbitration of an issue referable to arbitration under a written agreement.

From a practical standpoint, our situation is that after a full-blown trial of the issue the court permanently enjoined arbitration of the disputes arising out of the April and May transactions because, in its opinion, there was no agreement to arbitrate. In Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 545, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528, the Court said that § 1292 allows appeals from interlocutory orders “when they have a final and irreparable effect on the rights of the parties.” We realize the struggle which the courts have had with the Cohen decision, see 9 Moore’s Federal Practice, 2d ed., If 110.10, pp. 134-136, but we believe that the difficulty has been the reconciliation of Cohen with the final judgment requirement of 28 U.S.C. § 1291. We are concerned with § 1292(a)(1) and not with the final judgment rule. We believe that our situation falls squarely within § 1292(a)(1) because a permanent injunction was entered after a trial of the pertinent issues and that injunction had a final and irreparable effect on the rights of the parties. Accordingly, the order is appealable. We emphasize that our decision has no bearing on the finality of a judgment under § 1291 or on the appealability of an order granting or denying a stay of arbitration in a situation where the issue is referable to arbitration under an uncontested written agreement.

With regard to the April transaction, the parties negotiated orally for the manufacture of four container molds and four lid molds. Defendant gave an oral quotation on prices and agreed to commence work upon receipt of one-half of the tooling cost. , Defendant told plaintiff that its oral quote would be confirmed in writing on its usual quotation form. Plaintiff sent defendant two purchase orders and its check for $20,600. Defendant responded with its written confirmation designated Q182-70. At the bottom of the front page is a statement that the terms and conditions on the reverse side are incorporated by reference. Among the terms found on the reverse side is an arbitration clause. At the bottom of the reverse side appear the words “APPROVED & ACCEPTED” with appropriate signature lines upon which no signatures appear. It is conceded that in the September transaction a similar form was used and the terms and conditions were specifically agreed to by plaintiff.

Thus, we have oral negotiations followed first by plaintiff’s purchase orders and second by defendant’s quotation confirmation. The trial court found lack of awareness of the arbitration clause by the plaintiff. Defendant says that a decision based on a subjective test of a party’s actual knowledge is wrong in law because an objective test has long been recognized. Under the test which defendant advocates if a prudent man would have known that a provision was intended to be a part of a contract, each party is bound by that provision regardless of actual knowledge. See e. g. Hischemoeller v. National Ice & Cold Storage Co., 46 Cal.2d 318, 294 P.2d 433, 436-437, and 1 Restatement of Contracts § 230, p. 310.

Plaintiff counters with provisions of the Uniform Commercial Code § 2-207 (California Commercial Code § 2207). Section 2-207(2) (b) makes a material alteration in a written confirmation of a previously concluded oral agreement ineffective. See Dorton v. Collins & Aikman Corp., 6 Cir., 453 F.2d 1161, 1169. The question of a material alteration rests upon the facts of each case. See Ibid, at 1169, n. 8.

We attach no significance to the fact that the quotation confirmation was not signed by either party. We are aware of no decision under the California Arbitration Act, Cal.Civ.Code § 1281, determinative of the type of writing required. Decisions under the Federal Arbitration Act, 9 U.S.C. § 2, and under the similar New York statute have held it not necessary that there be a simple integrated writing or that a party sign the writing containing the arbitration clause. See Fisser v. International Bank, 2 Cir., 282 F.2d 231, 233; Ocean Industries, Inc., v. Soros Associates International, Inc., S.D.N.Y., 328 F.Supp. 944, 947; and Joseph Muller Corp. Zurich v. Commonwealth Petrochemicals, Inc., S.D.N.Y., 334 F.Supp. 1013, 1020-1021. All that is required is that the arbitration provision be in writing.

Plaintiff relies on Commercial Factors Corp. v. Kurtzman Bros., 131 Cal.App.2d 133, 280 P.2d 146, which declined to give effect to a New York judgment confirming an arbitration award. The court held that there was no agreement to arbitrate and, hence, no New York jurisdiction. The decision says nothing about the prudent-man test recognized in Hischemoeller v. National Ice & Cold Storage Co., 46 Cal.2d 318, 294 P.2d 433, 436-437. The decision is not clear whether it is based on general contract law principles or whether it depends on rules applicable to arbitration agreements. We agree with the statement in Collins Radio Co. v. Ex-Cell-O Corp., 8 Cir., 467 F.2d 995, 998, that under § 2 of the Federal Arbitration Act, 9 U.S.C. § 2, federal courts do not apply state statutes and decisions which limit arbitration agreements with rules not applicable to other contracts. In the circumstances we cannot accept Commercial Factors Corp. as a controlling statement of California law.

With relation to the April transaction, the court found that defendant told plaintiff that “its oral quote would be confirmed in writing on defendant’s usual quotation form.” This was the form apparently used in the September transaction which the court held was subject to arbitration. The court went on to find that plaintiff’s negotiator was not “made aware of the arbitration clause or understood that the same was intended to apply as a term of the agreement of the parties of April 13, 1970.” We have difficulty reconciling these findings. The court said nothing about the prudent-man test and made no finding that the inclusion of the arbitration clause was a material alteration within the purview of § 2-207 of the Uniform Commercial Code as is strongly urged by the plaintiff in this appeal. Findings must be sufficiently detailed and exact to permit an intelligent review. Commercial Standard Insurance Co. v. Liberty Plan Co., 10 Cir., 283 F. 2d 893, 895. The findings here fail to meet that standard, and the terse conclusions of law relating to the April transaction shed no light on the theory adopted by the trial court. With regard to the April transaction, the permanent injunction against arbitration must be reversed and the case remanded for further consideration in the light of this opinion.

Plastic parts to be made from the molds were covered by the May transaction in which a final contract was signed on May 26. Previously, defendant sent to plaintiff a copy of the contract with the quantity terms left blank. The contract was written on defendant’s stationery which did not contain terms and conditions on the reverse side. The contract specified that for all other terms and conditions reference was made to Quotation Q182-70 “a copy of which is attached.” A photocopy of the front of Q182-70 was attached, but no copy of the terms and conditions on the reverse side was included. The arbitration clause was on the reverse side of Q182-70. During further negotiations the quantities were inserted and the contract retyped and signed. No copy of Q182-70 was attached, but a photocopy of the front of that document was available at the signing. The trial court held that the arbitration clause was not incorporated by reference in the May 26 contract and that the reference to the incorporation of the Q182-70 terms and conditions was ambiguous.

We agree with the trial court. The contention of defendant that the issue with regard to the May transaction is not properly before us because it was not framed by the pre-trial order is not sustained by the record. Defendant’s argument that reference to the Q182-70 quotation confirmation would cause a prudent man to realize that the arbitration clause of that document was applicable to the May transaction is not persuasive. The fact is that the pertinent portion of document Q182-70 was not attached or exhibited. By supplying only part of document Q182-70, defendant at the very least created an ambiguity whether the balance of the document was incorporated. Defendant caused the ambiguity, and the effect thereof must be construed against it. McClintick v. Leonards, 103 Cal.App. 768, 285 P. 351, 354.

Case No. 72-1505 is plaintiff’s cross-appeal from the court’s denial of its summary judgment motion. A denial of a summary judgment motion is not an appealable order. Jones v. United States, 10 Cir., 466 F.2d 131, 136 n. 3, cert. denied 409 U.S. 1125, 93 S.Ct. 938, 35 L.Ed.2d 257, and Goodyear Tire & Rubber Co. v. Jones, 10 Cir., 433 F.2d 629, 632.

In No. 72-1505 the order denying summary judgment in favor of the plaintiff is affirmed, and costs are assessed against the plaintiff-appellant. In No. 72-1504 the order is reversed insofar as it enjoins arbitration of the disputes arising out of the April transaction, and the case is remanded for further consideration of that transaction in the light of this opinion. In all other respects the order of the trial court is affirmed. The costs in No. 72-1504 shall be divided equally.


author: MARIS, Circuit Judge.

text:
    Edwin R. KRAMER et al., Appellants, v. GOVERNMENT OF the VIRGIN ISLANDS and Board of Zoning Subdivision and Building Appeals of the Virgin Islands, St. Croix Drive-In-Theater, Intervenor.
    No. 72-1492.
    United States Court of Appeals, Third Circuit.
    Submitted Feb. 1, 1973.
    Decided May 18, 1973.
    Arnold M. Selke, Corneiro, Gibbs & Selke, Charlotte Amalie, St. Thomas, V. I., for appellants.

      Warren M. Pulner, Asst. Atty. Gen., Charlotte Amalie, St. Thomas, V. I., for appellee.
    Clarence A. McLaughlin, Bornn, McLaughlin & Finucan, Charlotte Amalie, St. Thomas, V. I., for intervenor.
    Before MARIS, ROSENN and HUNTER, Circuit Judges.
   OPINION OF THE COURT

MARIS, Circuit Judge.

The question presented on this appeal is whether the District Court of the Virgin Islands erred in affirming the decision of the Board of Zoning, Subdivision and Building Appeals of the Virgin Islands, hereinafter called the Board of Appeals, to grant a zoning exception for the construction of a drive-in theater in an area of St. Thomas zoned for residential and agricultural use, and in denying injunctive relief with respect thereto.

It appears from the record that an application had been filed on behalf of the St. Croix Drive-in Theater, Inc., with the Virgin Islands Planning Board for a special exception, as a recreational use, for a drive-in theater proposed to be constructed on a parcel of land located at Estate Donoe in St. Thomas which is in an R 10 zoning district. The Planning Board held a public hearing at which the plaintiffs, owners and residents of land overlooking the area of the proposed drive-in theater, objected to the granting of the exception. The application was denied for “improper location” and “possibility of traffic congestion.” Pursuant to 29 V.I.C. §§ 270, 277, an appeal was taken from the Planning Board’s decision to the Board of Appeals by the St. Croix Drive-in Theater, Inc. The Board of Appeals held a meeting at which the testimony of various persons appearing in favor of the applicant was received. Thomas Blake, director of the Planning Board, also testified at the meeting, stating that his board had received several letters from people who live in the surrounding area voicing objections to the possible noise and congestion of traffic resulting from the theater located at Estate Donoe. After receiving the testimony the Board members inspected the site of the proposed theater. Thereafter the Board of Appeals reversed the decision of the Planning Board and granted a special exception authorizing the construction of a drive-in theater at the proposed location in Estate Donoe.

The plaintiffs then filed a complaint in the District Court of the Virgin Islands against the Government of the Virgin Islands and the Board of Appeals to review the Board’s decision, alleging, inter alia, that it was arbitrary, capricious and in violation of the zoning law, 29 V.I.C., ch. 3, subchap. III. The St. Croix Drive-in Theater, Inc. intervened in the action, answered the complaint, and prayed for its dismissal. The Government of the Virgin Islands and the Board of Appeals also answered, asking for dismissal of the complaint. The district court entered a judgment dismissing the complaint on the ground that the plaintiffs, because they had not appeared before the Board of Appeals, did not come within the class of persons granted the right of review. On appeal from that judgment this court held that the plaintiffs were authorized under 29 V.I.C. § 270 to seek review by the district court of the Board of Appeals’ action and we remanded the cause to the district court for hearing on the merits. Kramer v. Government of the Virgin Islands, 3 Cir. 1971, 8 V.I. 449, 453 F.2d 1246.

Upon remand plaintiffs filed in the district court a motion for an injunction alleging that the establishment of the drive-in theater would result in traffic congestion and noise to their injury, contrary to the purpose of the law in establishing the residential zone, and that, in any event, such a theater was not a recreational facility which was authorized by the zoning law as a special exception in an R 10 residential zone. The plaintiffs specifically alleged that the Board of Appeals’ decision was in violation of the zoning law, 29 V.I.C. § 260(3), in that it would increase congestion in the roads and streets, which it was one of the objects of the law to prevent. The district court, after hearing, found reasonable and well supported by the evidence the conclusion of the Board of Appeals, that, in the light of the understanding of the term in the community, an outdoor drive-in theater is a “recreational use” within the meaning of the statute. The court applied the rule enunciated in N. L. R. B. v. Hearst Publications, 1944, 322 U.S. 111, 131, 64 S.Ct. 851, 88 L.Ed. 1170, that where the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially, the reviewing court’s function is limited to deciding whether that determination has warrant in the record and a reasonable basis in law. Concluding that the Board did not exceed its authority in granting a special exception for recreational use and that its decision to do so was based on relevant evidence acceptable to a “reasonable mind,” the district court denied the injunction and affirmed the decision of the Board of Appeals. Kramer et al. v. Government of the Virgin Islands et al., 1972, — V.I. -. This appeal by Edwin R. Kramer and Theodore A. Giattini, two of the plaintiffs followed.

On this appeal, the appellants contend that the district court erred in denying the plaintiffs’ application for an injunction because the value of their property will be reduced by the traffic congestion, noise pollution, visual pollution, heat pollution, and creeping commercialism, which, as they allege, will result from the establishment of the theater. They argue further that, as a matter of law, it was improper for the Board of' Appeals to grant a special exception in an R 10 residential zone to construct an outdoor drive-in theater, because such a theater would constitute a business or commercial use of the land and not such a recreational use as is authorized by the statute to be granted as a special exception in such a zone. We turn first to consider the latter contention.

The provisions of the zoning law which are involved are contained in sub-chapter III of Chapter 3 of Title 29, Virgin Islands Code (29 V.I.C. § 260 et seq.), and are, in pertinent part, as follows:

“§ 260. Purpose
the zoning requirements set forth in this subchapter shall be for the purpose of benefitting the Virgin Islands by:
(1) promoting the public health, safety, morals and general welfare;
(3) lessening congestion in the roads and streets;
(4) protecting the established character and social and economic value of agricultural, residential, commercial, industrial, recreational and other areas;
§ 261. Definitions
For the purpose of this subchapter, certain terms are defined as follows:
(17) Recreational use: Public or private recreational facility, including, but not limited to, golf courses, boat harbors, and bathing beaches. Commercial uses, such as refreshment stands and equipment rentals, may be permitted if clearly accessory to the principal use.
§ 266. District requirements
District requirements shall be as set forth in the schedule annéxed hereto, marked “Appendix I,” incorporated into and by this reference made a part of this subchapter. .
Appendix I
Schedule of Zone Requirements R 10 Zone
One- or Two-Family Residential
(Intent: To stabilize the agricultural and residential character of the Zone and to encourage a suitable environment for family life.)
Permitted Principal Uses and Structures :
1. Agricultural use
2. One or two single-family dwellings
3. Two-family structure Permitted Accessory Uses and Structures:
1. Home occupations
2. Servants’ quarters
3. Roadside stand Special Exceptions:
1. Rooming or boarding house
2. Community service or facility
3. Resort hotel
4. Agricultural processing plant
5. Recreational use
6. Apartment house
7. Three- or four-family structure
8. Neighborhood commercial activities
9. Quarrying and associated activities
§ 269. Special exception and variance procedure
(a) Special exceptions. The Planning Board may grant special exceptions for certain uses as specified in Appendix I . Such special exceptions shall be granted only when found to be in harmony with the purpose and intent of this subchapter and subject to such conditions and safeguards as may be appropriate.

[29 V.I.C. § 260 et seq.]

It will be seen that the statute authorizes the granting in an R 10 residential zone of a special exception for a “recreational use,” which the law defines as a “Public or private recreational facility, including, but not limited to, golf courses, boat harbors, and bathing beaches.” The appellants strongly urge that an outdoor drive-in theater is not such a facility and that its operation is not a recreational use. The word “recreation,” however, in its popular sense is of very comprehensive signification and includes in its general meaning games, sports and plays. 36A Words and Phrases, Perm, ed., pp. 121-122. Webster defines “recreation” as, inter alia, “refreshment of the strength and spirits after toil; diversion; play” and defines the word “diversion” as “that which turns or draws the mind from care or study, and thus relaxes and amuses Sny. . . . amusement, entertainment, recreation, game.” Webster’s New International Dictionary, 2d ed., pp. 2082, 759. The district court concluded that the Board was not unreasonable in deciding that a drive-in theater constituted “recreation” in the common community understanding of the term and was, therefore, authorized by the statute to be permitted as a special exception in the R 10 zone. We cannot say that this conclusion, thus affirmed by the district court, has no warrant in the record or any reasonable basis in the law. Under the rule laid down in N. L. R. B. v. Hearst Publications, 1944, 322 U.S. Ill, 131, 64 S.Ct. 851, 88 L.Ed. 1170, our authority to review this question extends no further. The fact that such a theater would be a commercial enterprise for private profit does not derogate from this conclusion since the statutory definition of recreational use specifically mentions golf courses, boat harbors and bathing beaches, all of which are frequently operated for profit and when so operated certainly constitute forms of commercial enterprise. We conclude that the statute, 29 V.I.C. §§ 261(17) and 269, fairly construed, authorizes the zoning authorities to grant, when it is found to be in harmony with the purpose and intent of the law, a special exception permitting a drive-in theater to be constructed and operated in an R 10 residential zone.

This brings us to the remaining question, namely, whether under the facts of this ease the action of the Board of Appeals in granting such an exception was within the purpose and intent of the law or whether, as the appellants contend, it violated that purpose and intent. In support of their contention they urge that the Planning Board corréetly denied the application for a special exception for the reasons of “improper location” and “possibility of traffic congestion” and that the decision of the Board of Appeals which granted the exception and the judgment of the district court which affirmed that decision are not supported by the evidence. They urge that traffic congestion on the connecting roads, excessive noise, visual pollution, heat pollution and creeping commercialism will result from the establishment of the drive-in theater in their residential neighborhood. The St. Croix Drive-in Theater, Inc., on the other hand, argues that the decision of the Board of Appeals and the judgment of the district court have support in the evidence disclosed in the minutes of the Planning Board and the Board of Appeals to the effect that the proposed drive-in theater would be located in an old quarry with a recessed moving-picture screen practically invisible from the road; that photographs of the area showed only two houses on the Wintberg Bay side, one of which was about 3000 feet away from the picture screen; and that an architect-member of the Planning Board visited the site, took photographs, analyzed the traffic conditions, and reported that the theater traffic would come at off-peak hours. Our review of the record as a whole satisfies us that the district court did not err in concluding that the decision of the Board of Appeals was supported by the record. The appellants have cited in support of their contentions numerous cases from other jurisdictions, each of which we have considered. However, it is clear that each of them turns on its own special facts and none is controlling here.

The district court also concluded that on the record before it the plaintiffs were not entitled to an injunction. We are satisfied that the court did not err in so doing. This is not to say, however, that the plaintiff might not become entitled to injunctive relief in the future. For while a drive-in theater is a lawful business and not a nuisance per se, King v. James, 1950, 88 Ohio App. 213, 97 N.E.2d 235; Bzovi v. City of Livonia, 1957, 350 Mich. 489, 87 N.W.2d 110, it may become a nuisance in fact if the place and manner of its operation result in such substantial injury to residents of the neighborhood as to amount to an invasion of their rights to repose and the enjoyment of their homes. Guarina v. Bogart, 1962, 407 Pa. 307, 180 A. 2d 557, 93 A.L.R.2d 1165, and annotation p. 1171 et seq.; 4 Am.Jur.2d, Amusements and Exhibitions § 37. And compare City of Somerset v. Sears, 1950, 313 Ky. 784, 233 S.W.2d 530.

The judgment of the district court will be affirmed.