stating that "[t]here is no surer way to misread any document than to read it literally"
How later courts described this case
- stating that "[t]here is no surer way to misread any document than to read it literally"
- "It does not therefore seem to me an undue liberty to give the section as a whole the meaning it must have had, in spite of the clause with which it begins. . . . There is no surer way to misread any document than to read it literally".
- concurring opinion of L. Hand, J.
- There is no surer way to misread any document than to read it literally.
Written by the judges who cited it.
The opinion
SWAN, Circuit Judge
(dissenting).
These are petitions under section 10 of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 210 , by home workers and employers of home workers in the embroideries industry to review a wage order of the Administrator which establishes a minimum wage rate of 40 cents an hour and prohibits, with very limited exceptions, home work. No one questions the validity of the minimum wage portion of the order. My brothers hold valid the prohibition of home work. I shall attempt to state briefly the reasons why I cannot agree with them.
Section 5 of the Act provides for the appointment by the Administrator of industry committees, each such committee being composed of representatives of the public, of employees and of employers in the industry. Section 8 prescribes the duties of the committee and of the Administrator after the committee has filed a report containing its recommendations. Subsection (b) requires that after investigating conditions in the industry the commit *625 tee “shall recommend to the Administrator the highest minimum wage rates for the industry which it determines * * * will not substantially curtail employment in the industry.” Under subsection (c) the committee may recommend classifications within the industry but the wage it recommends must not "substantially curtail employment in such classification,” nor give a competitive advantage to any group in the industry.” Under subsection (c) the report containing its recommendations the Administrator must give a hearing to interested persons and shall by order carry the recommendations into effect, if he finds that they are lawful and supported by the evidence adduced at the hearing, and, “taking into consideration the same factors as are required to be considered by the industry committee,” will carry out the purposes of section 8; otherwise he must disapprove such recommendations and again refer the matter to the same or another industry committee for further consideration and recommendation. Subdivision (d). Subdivision (e) provides that no order issued under section 8 shall remain in effect after expiration of the statutory rates specified in section 6. Then follows subdivision (f) under which the Administrator claims his power to prohibit home work. It reads as follows : “Orders issued under this section shall define the industries and classifications therein to which they are to apply, and shall contain such terms and conditions as the Administrator finds necessary to carry out the purposes of such orders, to prevent the circumvention, or evasion thereof, and to safeguard the minimum wage rates established therein. * *”
The committee which recommended the 40 cent minimum wage for the embroideries industry made no recommendation as to the abolition or restriction of home work. This issue was never presented to the committee. Had the committee known that the wage it recommended was to be accompanied by such a restriction, which, as Judge Hand well says, “will disorganize and make over the industry, break up much family economy, and produce conditions which cannot possibly adjust themselves” for a considerable period of time, the committee might well have withheld its recommendation of a minimum wage rate lest employment in the industry be substantially curtailed. The Administrator, it is true, has made a finding that employment will not be substantially curtailed. But this finding adds no support to the validity of the order in my opinion. The issue of curtailment of employment by reason of the prohibition of home work was interjected without statutory authority into the hearing held under § 8(d). That hearing is to determine whether the committee’s recommendations are made in accordance with law, are supported by the evidence, and will carry out the purposes of the section, “taking into consideration the same factors as are required to be considered by the industry committee.” As already noted the prohibition of home work was not presented to the committee and consequently was not a factor considered or required to be considered by it. Bearing in mind that under section 8(d) the Administrator must either adopt or reject the recommendations of an industry committee and is given no discretion to modify them, and that such committee is repeatedly admonished to determine that its recommendations will not substantially curtail employment, it appears to me unreasonable to suppose that Congress intended the incidental powers conferred by section 8(f) to authorize the Administrator in his uncontrolled discretion to take action so radical as to alter the whole structure of an industry and cause one-third of the employees engaged therein to become factory workers or to give up-their employment. In-my opinion “such terms and conditions” as the Administrator finds necessary “to carry out the purposes of the order or prevent evasion thereof” mean terms and conditions which are truly incidental to administration, that is, requirements as to keeping records, filing reports, etc. And this finds confirmation, I think, in the fact that the act as finally passed omitted the parenthetical definition which appeared at one stage of the legislative history of -section 8(f), namely, “such terms and conditions (including the restriction or prohibition of industrial home work or of such other acts or practices) as the Board finds necessary to carry out the purposes of such orders * * In my opinion so much of the order as prohibits home work should be set aside.