author:
PER CURIAM:
      OAKES, Circuit Judge

text:
    EDUCATION/INSTRUCCION, INC., et al., Plaintiffs-Appellants, v. Thomas MOORE, Individually and as Chairman of Capitol Regional Planning Agency, et al., Defendants-Appellees.
    No. 520, Docket 73-2507.
    United States Court of Appeals, Second Circuit.
    Argued March 5, 1974.
    Decided Aug. 21, 1974.
    Certiorari Denied Jan. 13, 1975.
    See 95 S.Ct. 783.
    Oakes, Circuit Judge, filed dissenting opinion.
    Igor I. Sikorsky, Jr., Hartford, Conn., for plaintiffs-appellants.
    Ralph G. Elliot, Hartford, Conn. (Al-corn, Bakewell & Smith, Hartford, Conn., on the brief), for defendants-ap-pellees.
    Before LUMBARD, OAKES and TIMBERS, Circuit Judges.
   PER CURIAM:

On this appeal from an order entered in the District of Connecticut, T. Em-met Clarie, Chief Judge, dismissing a complaint in a civil rights action which sought declaratory and injunctive relief, the sole issue is whether Public Act 821 enacted by the Connecticut General Assembly in 1971, Conn.Gen.Stat. §§ 4-124Í through 4-124p (Supp.1972), which authorizes regional councils of government, denies plaintiffs the equal protection of the laws because such council in the Hartford area is not apportioned on a one man, one vote basis. The district court held that there was no denial of equal protection and dismissed the complaint. We affirm.

Plaintiffs are a non-profit Connecticut corporation organized for educational, charitable and cultural purposes, together with three individual citizens of Connecticut, two of whom reside in the City of Hartford and one in the Town of Windsor. Defendants are the Chairman of the Capitol Regional Planning Agency (CRPA), the Chairman of the Capitol Region Council of Governments (CRCOG), the Secretary of the United States Department of Housing and Urban Development (HUD), the Regional Director of that Department and twenty-nine individuals who are the chief elected officials of the twenty-nine towns which comprise the Capitol Region (i. e. the Hartford area).

In view of the district court’s adequate statement of the facts and the controlling law, 379 F.Supp. 1160, it is sufficient for our purpose merely to state the claims asserted and the district court’s rulings thereon with which we agree.

Plaintiffs challenge on equal protection grounds Public Act 821 which provides for the restructuring of the existing CRPA and CRCOG to create a new regional council of government if approved by at least 60% of the towns within the planning region — here, the Hartford area. Each member town of the new council is entitled to one representative on the council, such representative to be the chief elected official of that town.

The gravamen of plaintiffs’ claim is that the Act’s restructuring of the present regional bodies to create a new regional council in the Hartford area will result in under-representation of the City of Hartford on the new council. In the past Hartford has had five representatives on CRPA, or 8% of that body’s membership. On the new council Hartford will have four representatives. A 1973 amendment gave Hartford four representatives on the council instead of the one initially provided, the three additional council members to be appointed by Hartford’s city council. Special Act No. 73-79 .(effective May 14, 1973). Hartford has a population of approximately 160,000, or about 24% of the regional population. Thus, plaintiffs argue, Hartford’s vote will be greatly diluted, as compared for example with the Town of Andover, whose population is approximately 2,000, which will have one vote. Plaintiffs’ claim in essence is that the legislature’s failure to apportion the new regional council on a one man, one vote basis denies them the equal protection of the laws in violation of the Fourteenth Amendment.

Application of the one man, one vote principle of Reynolds v. Sims, 377 U.S. 533 (1964), to various units of government in the State of Connecticut is no stranger to the Connecticut district court. E. g., Butterworth v. Dempsey, 229 F.Supp. 754 (D.Conn.1964) (state legislature), aff’d sub nom. Pinney v. Butterworth, 378 U.S. 564 (1964), on remand, 237 F.Supp. 302 (D.Conn.1964 and 1965); Kapral v. Jepson, 271 F. Supp. 74 (D.Conn.1967) (city board of aldermen); Giordano v. Amity Regional High School District #5, 313 F.Supp. 403 (D.Conn.1970) (regional board of education).

The critical question raised by defendants’ motion to dismiss the complaint for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), is whether the proposed regional council of government for the Hartford area is subject to the one man, one vote requirement. The district court held that it is not. We agree.

The statute in question does not provide for elective bodies. The councils do not exercise general governmental powers, nor do they perform governmental functions, within the meaning of Hadley v. Junior College District, 397 U.S. 50 (1970), and Avery v. Midland County, 390 U.S. 474 (1968). Indeed, the councils do not have even the minimal governmental powers found insufficient to invoke the one man, one vote principle in the Supreme Court’s most recent decisions in Salyer Land Co. v. Tulare Water District, 410 U.S. 719, 728 n. 7, 729 (1973), and Associated Enterprises, Inc. v. Toltec District, 410 U.S. 743 (1973).

The powers and functions of the councils are essentially to acquire information, to advise, to comment and to propose. As Judge Clarie aptly put it:

“To the extent that the [council] is able to provide a forum for an interchange of ideas and an atmosphere conducive to the development of solutions to regional problems which know no geographic boundaries, its importance should not be minimized. But this does not' bar recognition of the fact that it would be essentially advisory and non-governmental in both purpose and function, and the type of body which need not be apportioned on a strict numerical basis. As such, the [council] represents the kind of flexible experimentation which the Supreme Court has consistently recognized as being both desirable and constitutionally permissible.”

We agree.

We affirm on the well reasoned opinion of Judge Clarie below. 379 F.Supp. 1160 (D.Conn.1973).

Affirmed.

OAKES, Circuit Judge

(dissenting):

I respectfully dissent.

It seems to me that this is another reapportionment case just like Rosenthal v. Board of Education, 497 F.2d 726 (2d Cir. 1974). There, following Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 35 L.Ed.2d 36 (1970), and Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), we held that the constitutional claims made were not “ ‘so attenuated and unsubstantial as to be absolutely devoid of merit’, Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, 24 S.Ct. 553, 557, 48 L.Ed. 795 (1904), or ‘no longer open to discussion’, McGilvra v. Ross, 215 U.S. 70, 80, 30 S.Ct. 27, 54 L.Ed. 95 (1909).” 497 F.2d at 729. In the present case as well injunctive relief is sought. The Connecticut statutes that are involved are of state-wide applicability. For example, Conn.Gen.Stat.Ann. § 4-124c (Supp. for 1974), a provision attacked by appellants, prescribes the formation and composition of all regional councils of elected officials “[wjithin any planning region of the state . . . . ” Sections 4-124i-124p, the principal provisions appellants challenge, relate to the formation and composition of regional councils of governments established “[wjithin any planning region of the state . ” The sections relating to regional planning agencies, also under attack here, likewise are state-wide in applicability, again relating to “any planning region of the state . . . . ” E. g., Conn.Gen.Stat.Ann. § 8-31a (Supp. for 1974).

Since the question, for three-judge court purposes, is whether a substantial constitutional issue is presented, Rosen-thal v. Board of Education, supra, a discussion of the merits of the plaintiff-appellant’s claim is necessary.

On the crucial question whether the new Council of Governments established in the Hartford area (COG) pursuant to the above state provisions exercises general governmental powers within the ambit of Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), and Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970), it seems to me that neither the COG nor its predecessor bodies, the Capitol Region Planning Agency (CRPA) and Capitol Region Council of Governments (CRCOG), can be considered solely in the light of the statutory authority delegated by the State of Connecticut, as the majority considers them. Rather, we must look to the overall role of the agency in question in the federal system as a whole. A regional planning body such as COG, though a creature of state law, is established with a view to its functions under federal law and the federal system. A regional planning agency cannot be looked at while wearing state-oriented blinders when one of its principal purposes is to play a substantial role in the decision-making process involved in the dispensation of federal funds affecting all the citizens of the affected area.

The test of performing governmental powers must be one based on economic reality, not the mechanical application of nineteenth century municipal law. For example, 42 U.S.C. § 3334 requires that any application for a federal loan. or grant for the planning or construction of hospitals, libraries, sewers, water and sewage treatment facilities, highways, mass transit, airports or other transportation facilities, recreation, or open-space development must be submitted for review to an areawide agency, which in this case would be COG. COG may then comment and make its recommendations whether the application should be granted or not. 42 U.S.C. § 3334(b)(1). Primary emphasis is given to whether the project would be consistent with comprehensive planning and whether the project contributes to the fulfillment of such planning. Id. Supplementary grants, amounting to as much as any original grant, can be made, but only when there is a showing that the project will be “carried out in accord with areawide [comprehensive] planning and programming.” 42 U.S.C. § 3335(b)(3), (c)(1). In making the determination whether a project is in accord with an areawide plan, “the Secretary shall obtain, and give full consideration to, the comments of [the area-wide planning bodies].” 42 U.S.C. § 3335(d). In other words, federal law provides a carrot and stick approach to insure that local governments comply with the area plan. Thus, while COG may have no statutory power under state law to affect local governments, being limited to planning functions,- in light of the federal statutes COG’s plans themselves can affect local government’s abilities to receive federal funds and COG’s comments on localities’ applications may be altogether determinative.

Not only does the Connecticut COG have an abilility to affect the approval of individual municipalities’ applications for grants by the exercise of its planning function, but also the local municipalities are dependent upon the COG for establishment of a proper plan in the first instance. Thus, if COG does not do its job — failing to create an areawide plan or creating an areawide plan which does not meet federal requirements— even a non-member municipality’s application for a grant for water and sewer facilities or an open space land program may be disapproved for failure to be part of a proper areawide plan. See 42 U.S.C. § Í500b, 3102(c); Appendix 4, Comprehensive Planning Assistance Requirements and Guidelines for a Grant, CPM 6041.1A, U.S. Dept, of Housing and Urban Development (1972).

This control of the purse strings for the building of such a large assortment of facilities is essentially “governmental” in nature in a day and age when municipalities are frequently financially incapable of total self-reliance. In Had-ley, supra, the power to tax and spend was an important governmental power had by the district; in the year 1974 having a principal hand on the faucet of federal grants must be treated as at least as important as the local power to tax, especially where federal grants may pay up to 80 per cent of facilities’ costs, especially since in so many cases the municipalities’ powers to tax are often being exercised to their outer limits.

Beyond this, the COG has important powers under, e. g., the Intergovernmental Cooperation Act, 42 U.S.C. § 4201 et seq., and NEPA, 42 U.S.C. § 4321 et seq. In this instance it also happens to operate a regional crime squad (with the help of LEA A money), engages in joint purchasing efforts, and otherwise performs important functions that may properly be characterized as governmental in nature.

I am fully cognizant that the water district cases, Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973), and Associated Enterprises v. Toltec Watershed Improvement District, 410 U.S. 743, 93 S.Ct. 1237, 35 L.Ed.2d 675 (1973), indicate to many that the Supreme Court is backing away from Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and its progeny. I think these cases can be read, however, as dealing only with special purpose districts; even though the water districts in Salyer and Toltec had broad governmental powers, they were for a limited or special purpose only, relative to the cost and use of water. See 59 Cornell L.Rev. 687 (1974). Here, while the COG does not have the direct power to tax, its ability to influence or determine the amount, type, and location of virtually every public service is “governmental” power in its truest sense.

None of this, of course, is to say that there must be the same precision in formulating a proper system of apportionment of representation on a regional planning agency as in a state legislature, just as state legislative reapportionment is not subject to the same strict standards as congressional reapportionment. E. g., White v. Regester, 412 U.S. 755, 763, 93 S.Ct. 2342, 37 L.Ed.2d 314 (1973). Nor is it to fail to recognize the point underlying Mr. Justice Harlan’s dissent in Avery, 390 U.S. at 491-498, 88 S.Ct. 1114, that in a given case a regional planning agency may be of more concern to the rural members thereof than to the urban residents involved. These are considerations which could be taken into account, however, in establishing a formula which more equally protects or represents the people of Hartford than the one ultimately adopted, under the threat of this law suit, by the Connecticut Assembly by special act. Under the majority decision today,' regional planning agencies for metropolitan areas may be weighted in representational makeup one-sidedly against the urban area in favor of the outlying suburbs and towns, and thus the central cities of states with a state legislature dominated by rural or suburban towns left behind the door when facilities or services requiring federal funding are established.

While the district court did not reach the question and the majority mentions it only in passing, a subsidiary question is whether, since there is no direct election of the members of the new COG as such, this case falls within the rule of Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), that-makes the one-man one-vote doctrine of Reynolds v. Sims, supra, inapplicable to non-elected officials. The Connecticut statutes, however, make it very clear the COG will be basically composed of the “chief elected official” from each member town or city. Conn. Gen.Stat.Ann. § 4-124k. The “chief elected official” means “the highest ranking elected governmental official of any town, city or borough,” and the term “elected official” means “any selectman, mayor, alderman or member of a common council or other similar legislative body ... or warden of burgess . . . .” Conn.Gen.Stat.Ann. § 4-124i (Supp. for 1974). While the case is one not precisely controlled by precedent in this respect, it seems closest to Bianchi v. Griffing, 393 F.2d 457 (2d Cir. 1968), where persons elected as town supervisors automatically became members of the county board of supervisors. Here as there the fact is that thése officials aré elected, they are not appointed, and the one office (that of “chief elected official”) carries with it automatic membership on the regional council.

From all this it seems clear to me that there is a sufficiently substantial question of constitutionality as to require the convening of a three-judge court, see Rosenthal v. Board of Education, supra.

      . The statement in the district court opinion that Hartford would have one representative on the new council referred to the i>ro-vision in the Act prior to the 1973 amendment.

      . Reynolds v. Sims implemented the Supreme Court’s earlier holding in Baker v. Carr, 369 U.S. 186 (1962), that an assertion of constitutional right, as impaired by malapportionment according to population of representatives in state legislatures, presented a justi-ciable issue to be determined by the federal courts.

      . Tile district court did not find it necessary to determine whether members of the council are elected or appointed, since the council clearly does not exercise general governmental powers nor does it perform governmental functions.
      We do note, however, that at least some members of the council do not automatically become council members by virtue of their election to office in their respective towns. The three additional members from Hartford, referred to above, are appointed by the city council under Special Act 73-79. And at least the members from West Hartford, Wethersfield and Glastonbury are selected by the respective town councils after the voters elect the councils themselves.

      . We agree with the district court’s conclusion that there was no issue before that court on the present record as to whether federal statutes or regulations of IIUD require fair representation of minority groups on policymaking bodies which control or significantly affect the disposition of federal funds. The councils are not conduits of federal funds, but only of information. Since federal certification of the councils here involved has been terminated, regulatory compliance was not an issue before the district court and it is not an issue before us.

      . We note that our dissenting colleague addresses himself primarily to the question of whether a three-judge court should have been convened below. Arguing that such a court should have been convened, the dissent relies heavily upon our recent decision in Rosenthal v. Board of Education, 497 F.2d 726 (2 Cir. 1974). The dissent’s reliance on Rosenthal, in our view, is misplaced. In Ros-enthal, there was no question that the body involved performed substantial governmental functions (“There seems no doubt, as recognized by the district court, that the powers of a central high school district include substantial governmental functions.” 497 F.2d at 728). Here the proposed regional councils do not have general governmental powers and do not perform governmental functions.
      It is axiomatic that a single judge may dismiss a complaint which attacks the constitutionality of a state statute and seeks an injunction against its enforcement if he finds that the complaint presents no substantial constitutional issue. E. g., Goosby v. Osser, 409 U.S. 512 (1973). Here the recent decisions of the Supreme Court in Salyer and Associated Bnterprises “inescapably render the [plaintiffs’] claims frivolous.” 409 U.S. at 538. The district court therefore properly dismissed jdaintiffs’ complaint without convening a three-judge court.

      . The COG was the result of the legislative consolidation under Conn.1971 Public Act No. 821, Conn.Gen.Stat.Ann. §§ 4-124i-124p, of the then existing CRPA and CRCOG, and its composition is principally the object of attack in this suit.

      . It is not mere coincidence that COG was created meeting the federal requirements for planning agencies which are to serve as Area Planning Offices and thereby qualify for large federal planning grants.

      . There is no indication of any sort that this is the case here. -

      . In the case of Hartford (on behalf of the citizens of which the plaintiff-appellants instituted this suit), with a population of approximately 160,000 or 24 percent of the “Capitol Region,” it liad five representatives of the 66 on the old CRPA. Before this suit was brought the Hartford representation on the new COG would have been one of 29, just the same as Andover’s (population 2,000). Thereafter the Connecticut legislature passed Special Act No. 73-79 (eff. May 14, 1973) providing Hartford with three additional representatives to COG who are appointed.

      . There is an exception where a town has no “chief elected official,” in which case the representative to COG is chosen from the elected officials by the legislative body of the town. Conn.Gen.Stat.Ann. § 4-124k (Supp. for 1974). Here, however, only three of the 29 towns comprising the so-called Capitol Region have no “chief elected official.” Despite this exception and that specially made in the case of Hartford, the COG is in substantial part elective in nature and composed of elected members. See Bianchi v. Griffing, 393 F.2d 457 (2d Cir. 1968). See also Lodico v. Board of Supervisors, 256 F.Supp. 440 (S.D.N.Y.1966) (reapportionment of County Board of Supervisors ordered where members of Board became such upon election to post of Supervisor by individual towns), approved on this point by Abate v. Mundt, 403 U.S. 182, 183, 187, 91 S.Ct, 1904, 29 L.Ed.2d 399 (1971).


source: Caselaw Access Project

author: BARRETT, Circuit Judge. BREITENSTEIN, Circuit Judge

license: Public Domain

text:
    PIPELINERS LOCAL UNION NO. 798, TULSA, OKLAHOMA, and A. Leroy Jones, Plaintiffs-Appellants, v. Fred H. ELLERD, et al., Defendants-Appellees.
    No. 73-1880.
    United States Court of Appeals, Tenth Circuit.
    Argued July 9, 1974.
    Decided Oct. 2, 1974.
    Breitenstein, Circuit Judge, concurred in the result, with opinion.

      Robert A. Hampe, St. Louis, Mo. (Richard L. Daly, St. Louis, Mo., on brief) for appellants.
    Jon B. Clarke, Denver, Colo. (David J. Clarke, Denver, Colo., on brief) for ap-pellees.
    Before BREITENSTEIN, Mc-WILLIAMS and BARRETT, Circuit Judges.
   BARRETT, Circuit Judge.

Pipeliners Local Union # 798 (Union), and A. Leroy Jones (Jones), appeal from the judgment of September 24, 1973, awarding Intermountain Equipment Rentals, Inc. (Intermountain) $5,731.83 and costs on its counterclaim.

Intermountain, a Utah corporation qualified to do business in Colorado, submitted its bid to construct 20 miles of natural gas pipeline in San Miguel County, Colorado, for Rocky Mountain Natural Gas Company. Intermountain’s stock is owned 90% by W. C. James and 10% by Ralph Pinkham. After Inter-mountain’s bid was accepted, it entered into a 50-50 joint venture agreement with W. C. James and Associates, Inc. (Associates), a Utah corporation qualified to do business in Colorado. Associates’ stock is owned 51% by Louis R. Morava and 49% by W. C. James. Under the joint venture agreement, of which Rocky Mountain Natural Gas Company was fully informed, Inter-mountain was to furnish most of the equipment and Associates was to furnish the financing. The joint venture hired W. C. James as its general project manager. It was to operate under the trade name of Associates. A third corporation, W. C. James, Inc. (James, Inc.), a Nevada corporation, whose stock is owned 100% by W. C. James and his wife, leased some of its equipment to the joint venture. Prior thereto, in August of 1970, James, Inc. had entered into a collective bargaining agreement with Union which expired by its own terms on April 30, 1973. Neither Intermoun-tain or Associates were signators to that or any other collective bargaining agreement with Union.

In April of 1971, Jones, as business agent of Union, contacted W. C. James about the employment of Union welders and welder helpers on the project. The joint venturers declined to employ them. The construction was commenced in May of 1971 with non-Union welding workers. Jones insisted that Union members should be employed on the project. Associates continued to refuse to employ them. On the morning of Saturday, May 29, 1971, Jones came to the project area with some 20 to 26 Union members with the purpose of shutting down the job. Jones and the Union members climbed over a fence and entered a private right-of-way where they shut off equipment or instructed the operators to do so. They threatened Associates’ non-Union workers. Jones and the Union members refused to leave the jobsite until finally ordered to do so by the Sheriff of Dolores County, Colorado. All work was necessarily cancelled for the balance of that day. Associates felt compelled to hire a deputy sheriff and three night watchmen to patrol the job-site even though the succeeding day, Sunday, was not a scheduled work day. Jones and Union members appeared at the jobsite again briefly on Monday morning. Associates lost the permanent services of twelve workers. The project was held up until their replacements could be hired and qualified for their assigned tasks.

The Sheriff of Dolores County testified by deposition that on the morning of May 29th, at the jobsite, Jones told him that he and the Union members had come to shut the job down. He testified that Jones was very belligerent; that he observed three hand guns in a van parked on the highway; that he was told by one of the non-Union workers that Jones and his associates had told them to “get over here and sit down” or they “will beat the hell” out of them.

Sheriff Ellerd of San Miguel County testified by deposition that on Monday morning following the Saturday jobsite encounter, he and other officers were escorting non-Union workers to the jobsite when he confronted Jones. Ellerd questioned Jones about a reported rock-throwing incident on Sunday. While El-lerd was frisking Jones, Jones made a quick turn. This alarmed Ellerd who struck Jones on the chin with an open palm.

Appellants Jones and Union contend that when Jones and the Union members went to the jobsite, they did so for the sole purpose of “visiting” with W. C. James in regard to the collective bargaining agreement the Union had entered into with James, Inc.

Following the events of May 29-31, Associates continued the construction work on the project with non-Union employees. Associates did not pay any fringe benefit contributions to the Union’s benefit fund. The project was completed in July, 1971.

On July 6, 1971, the instant suit was filed by Union and Jones against the counties of San Miguel, Montrose and Dolores, Colorado, the three sheriffs of these counties, individually and in their official capacities, together with W. C. James, James, Inc. and Intermountain. The Complaint alleged that the events of May 31, 1971, giving rise to the Civil Rights action, occurred at a time when Jones and the two Union members were parked in a car, off of the jobsite on a public highway, and when they were not interfering with any work activity. They alleged that their rights under the Fourth, Sixth and Fourteenth Amendments to the Constitution of the United States were violated, contrary to the Civil Rights Act, 42 U.S.C.A. §§ 1983 and 1985, to-wit: Unlawful search; use of physical violence and abuse without cause; unlawful search of the automobile; abusive and unwarranted frisking of Jones and the two Union members in his company; violent striking of Jones rendering him unconscious, with further physical abuse of Jones by use of fists, which required medical care, resulting in permanent impairment entitling Jones to award of actual damages of $250,000.-00; ordering Jones and his Union companions to get out of the three counties above named, with instructions to deputy sheriffs by Sheriff Ellerd to consider Jones and other members of the Union as “armed and dangerous” and with instructions to “shoot to kill”; that after leaving the scene the three sheriffs followed to insure that Jones and companions left the three counties; that on May 29, 1971, W. C. James informed Jones that if he appeared on the jobsite, James would call the police to cause Jones to be thrown in jail. In addition to actual damages sought by Jones, both Jones and Union sought punitive damages of $1,000,000.00 each, against the defendants and each of them.

Intermountain filed an Answer generally denying the allegations of the Complaint and, as an affirmative defense pled that any injuries or damages suffered by plaintiffs were incurred while Jones and the Union members were engaged in a violation of provisions of the Colorado Labor Peace Act, C.R.S.1963 Ann., Ch. 80-4-1 through 80-4-22, as amended. In addition, Intermountain counterclaimed, alleging that because of the events of May 29-31, 1971, engendered by the plaintiffs, it had been damaged $14,808.25 for costs involving the protection of laborers and material, the replacement of three operators, five welders, one helper and three laborers who quit their jobs following threats made by plaintiffs, together with the delay and loss of at least two days’ production on the project.

During the months of November and December, 1971, the defendants moved for dismissal of the Union’s Complaint. Memorandums were filed by the defendants asserting that the Union's Complaint failed to state a cause of action. The Union did not file a memorandum in opposition to the motions. On February 9, 1972, the Court dismissed the Union’s Complaint.

On September 26, 1973, pursuant to an oral stipulation made in open court on September 24, 1973, an Order was entered dismissing with prejudice the Complaint of both Union and Jones relating to all claims and against all parties. All parties agreed that the counterclaim of Intermountain survived and that it should be tried to the Court without a jury. Following trial the Court delivered oral findings of fact, conclusions of law and judgment from which this appeal is taken.

Appellants jointly allege Trial Court error in that: (1) it improperly entered its Order on February 9, 1972, granting defendants-appellees Motions to Dismiss Union’s complaint on the ground that it failed to state a claim upon which relief could be granted; (2) it admitted into evidence Intermountain’s Exhibits I, D, D — 1, T-2, T-3, T-4 and S as “business records” even though they did not qualify as such under the Business Records exception to the Hearsay Rule, and further by reason of Intermountain’s failure to establish a proper foundation for their admission; (3) it failed to find a violation of the Colorado Labor Peace Act which is a prerequisite to the entry of judgment on the counterclaim; and (4) it granted damages for a suni of money paid for “watchmen” which was too remote; improperly permitted W. C. James to estimate the percentage of efficiency lost on the job, which was an unsubstantiated conclusion and opinion; found a “loss of efficiency” on the job-site, lacking substantial evidence; and, granted judgment on the counterclaim even though Intermountain failed to meet its burden of proof.

I.

At the threshold we must determine whether the District Court had jurisdiction over Intermountain’s counterclaim following dismissal of plaintiffs’ Complaint and all claims with prejudice. It is the contention of appellants that the Court was without jurisdiction over the counterclaim in view of the prior voluntary dismissal of the Complaint by plaintiffs in that the counterclaim is permissive rather than mandatory in nature. Union and Jones contend that following dismissal of the Complaint, the counterclaim failed for want of an independent basis requisite for jurisdiction under Rule 13(b), Fed.R.Civ.P., 28 U.S. C.A. Intermountain argues, alternatively, that its counterclaim: (a) was based on independent jurisdictional grounds, i. e., diversity of citizenship and amount in controversy required to satisfy 28 U.S.C. § 1332(a); and (b) that even if no independent jurisdictional ground to support the counterclaim exists, that the Court properly retained ancillary jurisdiction, because the counterclaim is compulsory.

Rule 13(a), Fed.R.Civ.P., provides, inter alia:

(a) Compulsory Counterclaims.

A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occur rence that is the subject matter of the opposing party’s claim ....

(Emphasis supplied).

A related or compulsory counterclaim — as distinguished from a permissive counterclaim — must be pleaded or it is barred. See Wright and Miller, Federal Practice and Procedure, Civil § 1417 and cases cited.

A federal district court may assert jurisdiction of a claim which is a continuation of, or incidental and ancillary to, a principal claim over which it has jurisdiction, even though it might not have jurisdiction of the ancillary proceedings if it were an independent and original action or proceeding. Aetna Insurance Company v. Chicago, Rock Island and Pacific Railroad Company, 229 F.2d 584 (10th Cir. 1956); Wright, Federal Practice and Procedure, § 1414 at 69-71. This is so because the ancillary claim is referable to or dependent upon the jurisdiction of the court over the principal suit or proceeding. United States v. Acord, 209 F.2d 709 (10th Cir. 1954). In Inter-State National Bank of Kansas City v. Luther, 221 F.2d 382 (10th Cir. 1955), cert. dismissed 350 U. S. 944, 76 S.Ct. 297, 100 L.Ed. 823 (1956), we held that:

Counterclaim under Rule 13, F.R.C.P., includes both setoff and recoupment, and is broader than either in that it includes other claims and may be used as a basis for affirmative relief. See Clark Code Pleading, 2d Ed. 637, cited 3 Moore’s Federal Practice, § 13.02, p. 9. Rule 13(a), F.R.C.P., provides for compulsory counterclaim “if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim * * *.” Rule 13(b) provides for a permissive counterclaim . . . the only difference . we need to note is that the compulsory counterclaim, being ancillary to the claim, derives its jurisdiction from the same source, whereas a permissive counterclaim not arising out of the same transaction or occurrence must rest upon independent grounds of jurisdiction being of the view that the Bank impliedly consented to the jurisdiction of the court, the counterclaim was maintainable under Rule 13(b), F.R.C.P., whether compulsory or permissible. See 3 Moore’s Federal Practice §§ 13.-18-13.19. (Emphasis supplied.) 221 F.2d at 390.

The courts have given the terms “transaction” and “occurrence” contained in Rule 13(a), supra, flexible and realistic constructions in order to effect “judiciaPeconomy ”, i. e., trial in one action of all related controversies between the parties and, of course, the avoidance of multiciplicity of suits. Southern Construction Co., Inc. v. Pickard, 371 U.S. 57, 83 S.Ct. 108, 9 L.Ed.2d 31 (1962); Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926); State of Iowa v. Union Asphalt & Roadoils, Inc., 409 F.2d 1239 (8th Cir. 1969); Great Lakes Rubber Corporation v. Herbert Cooper Co., Inc., 286 F.2d 631 (3rd Cir. 1961); Glens Falls Indemnity Company v. United States ex rel. Westinghouse Electric Supply Company, 229 F.2d 370 (9th Cir. 1955); Wright and Miller, Federal Practice and Procedure, § 1409. See also Fed.R.Civ.P., Rule 54(b), 28 U.S.C. A.

It has been said that most courts, rather than attempting to define the key terms of Rule 13(-a), supra, precisely, have preferred to suggest standards by which the compulsory or permissive nature of specific counterclaims may be determined: (1) Are the issues of fact and law raised by the claim and counterclaim largely the same? (2) Would res judicata bar a subsequent suit on defendants’ claim absent the compulsory counterclaim rule? (3) Will substantially the same evidence support or refute plaintiffs’ claim as well as defendants’ counterclaim ? and (4) Is there any logical relation between the claim and the counterclaim? See Wright and Miller, Federal Practice and Procedure, Civil § 1410, Ch. 4, p. 42 and cases cited. On the totality of the facts presented, we hold that while many of the issues of fact and law are largely the same, and while much of the same evidence would support or refute plaintiffs’ claim as well as defendants’ counterclaim, the one compelling test of eom-pulsoriness met here is that both the original claims of plaintiffs-appellants and the counterclaim of defendant-appel-lee arose out of the same “transaction or occurrence” which logically relate by reason of their common origin. The “logical relation” test is the most controlling. Moore v. New York Cotton Exchange, supra; Wright, Law of Federal Courts, 1970 Ed., Ch. 10, Counterclaims, pp. 346-347; 1A Barron & Holtzoff, Wright ed., § 394.

The exercise of federal jurisdiction over claims against parties as to whom there exists no independent basis for jurisdiction finds substantial analogies in the joinder of new parties under the doctrine of ancillary jurisdiction within the context of compulsory counterclaims under Rule 13(a), supra. H. L. Peterson Company v. Applewhite, 383 F.2d 430 (5th Cir. 1967); Albright v. Gates, 362 F.2d 928 (9th Cir. 1966); United Artists Corporation v. Masterpiece Productions, Inc., 221 F.2d 213 (2nd Cir. 1955). These decisions are also authorities for the rule that in deciding what is a “transaction” or “occurrence”, the terms must be accorded liberal construction. And if the counterclaim is held to be compulsory, it is settled that the court has ancillary jurisdiction to decide it even though the plaintiffs’ claim be dismissed. Moore v. New York Cotton Exchange, supra; Kirby v. American Soda Fountain Company, 194 U.S. 141, 24 S.Ct. 619, 48 L.Ed. 911 (1904); United States for Use & Benefit of D’Agostino Excavators, Inc. v. Heyward-Robinson Company, 430 F.2d 1077 (2nd Cir. 1970), cert. denied 400 U.S. 1021, 91 S.Ct. 582, 27 L.Ed.2d 632 (1971); Atlantic Corporation v. United States, 311 F.2d 907 (1st Cir. 1962); Home Ins. Co. of New York v. Trotter, 130 F.2d 800 (8th Cir. 1942); Wright and Miller, Federal Practice and Procedure, Civil, §§ 1414, Ch. 4, p. 78; 2365 Ch. 7, p. 175; Wright, Law of Federal Courts, §§ 9, 79 (2d Ed. 1970).

Appellants argue that the trial court erred in finding, prior to the hearing on the counterclaim, that Union’s Complaint had failed to state a claim upon which relief could be granted. Motions to Dismiss were filed against Union’s Complaint by all of the Defendants. On February 9, 1972, the Court entered its Order granting the Motions to Dismiss on the ground that the “complaint does not state a claim in behalf of plaintiff, Union, upon which relief can be granted as against any defendant.” Intermountain contends that this constituted a final order requiring filing of notice of appeal under F.R.A.P., Rules 3(a) and 4(a), 28 U.S.C.A., with the clerk of the district court within 30 days of the date of the Order appealed from. We hold that the Order was not a final order or judgment, however, because it does not meet the requirements of Fed. R.Civ.P. 54(b), 28 U.S.C.A. for failure to contain an express determination that there is no reason for delay and expressly directing entry of judgment. Absence thereof failed to terminate Union’s action as to its claim. Prior to the trial on Intermountain’s counterclaim, however, counsel for Union and Jones did, in open court, explicitly and unqualifiedly stipulate that all actions “as to all parties with the exception of the parties to the counterclaim” were dismissed with prejudice, each party to pay its own costs. (R., Vol. II, pp. 2-4). The stipulation was made in open court on September 24, 1973. We hold that it constituted a voluntary dismissal of the complaint and claims of Union and Jones supportive of the Order of Dismissal entered by the Court on September 26, 1973 (R., Vol. VI, p. 100), even though no formal stipulation of dismissal was signed by all of the parties to the action as contemplated by Fed.R.Civ.P., Rule 41(a), 28 U.S.C.A. No contention is made that the Trial Court abused its discretion in entering the Order of Dismissal on September 26, 1973. We hold that it did not. Davis v. Operation Amigo, Inc., 378 F.2d 101 (10th Cir. 1967). It is significant, we believe, that appellants’ supplemental memorandum on appeal refers to the dismissal order of September 26, 1973, as one “voluntarily” agreed upon by plaintiffs-appellants. The voluntary dismissal constitutes a bar to appellants’ attack upon the Order of Dismissal of February 9, 1972. See Inter-State National Bank of Kansas City v. Luther, supra.

Appellants cannot now be heard on their contention that the Trial Court erred in entering its order of February 9, 1972, dismissing Union’s complaint on the ground that it “does not state a claim . • . . upon which relief can be granted” in light of their subsequent voluntary dismissal of their respective complaints and causes of action. That being so, the District Court then had jurisdiction only over the Intermountain counterclaim.

II.

Appellants allege Trial Court error in the admission in evidence of Intermountain’s Exhibits I, D, D-l, T-2, T-3, T-4 and 5 as “business records” in that they did not qualify under the Business Records exception to thé hearsay rule and that Intermountain failed to establish proper foundation and identification and basis for their admission.

Each of the exhibits challenged were listed and identified in the Trial Court’s pre-trial order. (R., Vol. VI, p. 92). They related to expenses incurred by Intermountain resulting from the Jones-Union members encounter on the project property. They represent entries kept by Intermountain in the regular and ordinary course of its business. Intermountain’s office manager, Jack V. Mott, testified that each of the exhibits represented records pertaining to the “permanent records and the jobsite records for the construction” from information within his personal knowledge, or that regularly submitted to him in the ordinary course of business. Mott testified that Exhibits I and S, daily cost records, were personally prepared by him on a daily and weekly basis predicated, in part, upon invoices, footages achieved, and time cards turned in by the foreman of each phase of the project’s prior day’s work. (Vol. II, pp. 41, 43, 44, 55, 78-80). All of the exhibits were identified and utilized by Mott based either on his personal knowledge, or reliable accounts and records kept in the ordinary course of business. They qualify as “business records” within the hearsay rule exception. United States v. Sparrow, 470 F.2d 885 (10th Cir. 1972), cert. denied 411 U.S. 936, 93 S.Ct. 1913, 36 L.Ed.2d 397 (1973); Woodring v. United States, 376 F.2d 619 (10th Cir. 1967), cert. denied 389 U.S. 885, 88 S.Ct. 153, 19 L.Ed.2d 182 (1967); Powell v. Brady, 30 Colo.App. 406, 496 P.2d 328 (1972); 28 U.S.C.A. § 1732. The admissibility of evidence is discretionary with the trial court and will not be disturbed on appeal unless clearly erroneous. United States v. Brumley, 466 F.2d 911 (10th Cir. 1972), cert. denied 412 U.S. 929, 93 S.Ct. 2755, 37 L.Ed.2d 156 (1973); United States v. Acree, 466 F.2d 1114 (10th Cir. 1972), cert. denied 410 U.S. 913, 93 S.Ct. 962, 35 L.Ed.2d 278 (1973). And in Hodgson v. Okada, 472 F.2d 965 (10th Cir. 1973), we said:

The trial court found that “there are no adequate records which permit anyone to compute, with any degree of certainty at all, the amount of underpayment.” The Court proceeded to make its computations of underpayment to the pickers on the basis of testimony of three of the pickers contained in depositions, which the trial court observed to “constitute a maze of total and complete confusion.” The Court then averaged the wages from the deposition testimony, made adjustments, and arrived at the figure of $1,279.90 as the amount due predicated on thirteen pickers who worked SYz days per week or 44 hours per week for four weeks. 472 F.2d at 969.

We there held that the award was not arbitrary. And in Boehm v. Fox, 473 F.2d 445 (10th Cir. 1973), we held that notwithstanding a timely objection lodged at trial, a witness may testify from summaries in lieu of original records if used to refresh his memory, and that such testimony is not violative of the best evidence rule. The objection there lodged to the testimony, was based upon the ineompetency of the witness, failure to lay a foundation, and because the testimony was based on hearsay. The exhibits were further admissible under the liberal provisions of Fed.R. Civ.P., Rule 43(a), 28 U.S.C.A., and other Colorado decisions. Department of Highways v. Intermountain Terminal Company, 164 Colo. 354, 435 P.2d 391 (1967); Hobbs v. Breen, 74 Colo. 227, 220 P. 997 (1923). Mott was voir dired and thoroughly cross-examined. There was no abuse of discretion in the admission of the exhibits.

III.

Appellants argue that the Trial Court erred in failing to find they had violated the Colorado Labor Peace Act, C.R.S.1963, 80-4-1, et seq., as amended, as a prerequisite to the entry of judgment on Intermountain’s counterclaim. They contend that in view of the fact that Intermountain relied upon the Act in pleading its counterclaim, that it must first utilize the administrative provisions of the Act in seeking a remedy in lieu of the instant action. Inter-mountain pled the Act in its Affirmative Defenses to the Complaint and in its Counterclaim to this extent:

7. The activities of plaintiffs as hereinabove set forth constituted unfair labor practices under the Colorado Labor Peace Act, Chapter 80, Article 4 of Colorado Revised Statutes, 1963, as amended, for which plaintiffs are liable for damages under section 19 thereof.
(R., Vol. VI., p. 48).

We hold that this allegation cannot be construed to foreclose Intermountain’s right to an independent remedy. The issue was resolved by the Colorado Supreme Court in Denver Building and Construction Trades Council v. Shore, 132 Colo. 187, 287 P.2d 267 (1955). There the employer invoked the Act in a suit for injunctive relief and damages. The defending union contended that the employer’s exclusive remedy was via administrative proceedings set forth in the Act. The Court rejected this argument, holding that recovery in damages for injury incurred as a result of illegal practices is founded in tort and that tortious conduct may be remedied in a common-law action for damages. We agree.

V.

Finally, appellants contend that the Trial Court erred in granting damages in a sum paid for “watchmen” which was too remote; that W. C. James was improperly permitted to estimate the percentage of efficiency lost on the job, which was an unsubstantiated conclusion and opinion; that there was a lack of substantial evidence relating to the Court’s findings of “loss of efficiency” on the jobsite; and that Intermountain failed to carry its burden of proof. We disagree.

The Trial Court’s finding that employment of the watchmen was justified by the facts and circumstances is fully supported by the record. The same is true of the mileage paid to the sheriff. The record is undisputed on the fact that twelve employees were coerced and intimidated to the extent that they quit their jobs, and that the remaining employees were nervous and apprehensive and that, as a result, the “loss of efficiency” in production was based on expert estimates of damages related to facts established at trial. We have held that when the cause and existence of damages has been established with requisite certainty, recovery will not be denied because the amount of such damages is difficult to determine with mathematical preciseness. Hodg-son v. Okada, supra; A to Z Rental, Inc. v. Wilson, 413 F.2d 899 (10th Cir. 1969).

We affirm.

BREITENSTEIN, Circuit Judge

(concurring in result).

The complaint asserts violation of civil rights by reason of physical violence which occurred when union representatives sought to shut down a construction project because of a refusal to employ only union labor. The plaintiff union and one of its representatives claimed violation of 42 U.S.C. §§ 1983 and 1985. Jurisdiction was asserted under 28 U.S. C. § 1343. Defendant employers asserted a counterclaim for expenses incurred as a result of plaintiffs’ actions. No objection was made to the assertion of the counterclaim and judgment was entered thereon in favor of the employers. If the counterclaim was compulsory, there is ancillary federal jurisdiction.

My trouble with the opinion is the possibility that it will be taken as a general approval of counterclaims in civil rights actions. I have been unable to find any authority on the point. On the record presented both the violence and the additional expenses arose out of the Union’s effort to close down the job. Satisfaction of the “transaction or occurrence” requirement of Rule 13(a), F.R.Civ.P., should be determined in the first instance by the trial court. Here, the problem was not presented to the trial court and we should not make a de novo determination. Implicit in the decision of the trial court is recognition that the counterclaim was compulsory and, hence, ancillary jurisdiction was present.

On the particular facts of this unique case, coupled with the failure of the plaintiffs to object in the trial court to the counterclaim, I would affirm but I would leave open the question of recognition generally of compulsory counterclaims in civil rights actions.