Petition for Writ of Certiorari — Mabee v. White Plains Publishing Co.

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212 1945 & |

, CHAPLES CLNUNE GROPLEY

i. aS cee

Supreme Court of the Rnited States

October Term, 1944.

es oi No. <a ak 7

COURTNEY M. sissies CHARLES K. BARNUM, ED-

WARD G. TOMPKINS, NORTON MOCKRIDGE,

‘GEORGE S. TROW and WILLIAM L. O’DONOVAN,

Petitioners,

against

WHITE PLAINS PUBLISHING COMPANY, INc.,

Respondent.

Motion to Dispense with Reprinting Record on Certiorari,

Petitior for Writ of Certiorari to the Court of Appeals

of the State of New York and Brief in Support of Peti-

tion for Writ of Certiorari.

4, i

~ MORTON LEXOw,

Altorney for Petitioners,

. 70 Lafayette Avenue,

Suffern, N. Y.

Davip H. MOSEs, :

STEPHEN R. J. ROACH,

On the Brief.

So, \

THE REPORTER coma. Inc., Walton, N. Y.

Index.

~ Motion to Dispense With Reprinting Record on

2 aca sttininecaee emeneppseionannnionnds

Petition for. Writ of Certiorari to the Court of

Appeals of the State of New York ................

Opinions Below ...........< i sieeschaecaomaaicremnnostsit

Jurisdictional Statement ....................-- ME ORE

The Federal Question as-Stated by Court of

Appeals in the Amendment of Remittitur Is

ES ee en

Statement of Matter Involved .

Questions Presented caldinaasebaauith :

Reasons for — “ee a

ieee A

Appendix B

Brief in Support of Petition for Writ of Certiorari

- Preliminary Statement . i caahcinllsininsvinnapedicophon

Summary of Argument .. hat scniallbctensiliil | ar ee

Point I. The hesiliaais of receiying, | transmittin ing,

exchanging news, intelligence and a advértising

through the use of interstate communications

and ‘agencies constitutes interstate commerce

and the producing therefrom a product (a

Page

daily newspaper) constitutes goods for inter- .

state commerce within the meaning of the Fair

Labor Standards Act of 1938 -.0...0.........:::cese000

Pornt II. There is no expression in this court in a

case under the Fair Labor Standards Act

_ which justified the Courts below in applying

the ‘‘de minimis”’ doctrine. On the contrary,

*this Couri has said in effect otherwise ........

Post HI. The doctrine of ‘‘de minimis’”’ is inap-

plicable under the facts and controlling de-

cisions in the Federal Courts which decisions

the Courts below refused to follow poco eesitahi

Sy rr,

CASES CITED. -

‘ . , Page

Associated Press v. National Labor Board, 301 U.S

IIIS sitsciathiagsieecaacesastanNt ai cteiealiabadcigaiciaaasion eee |

Belo v. Street, 36,,Fed. Su upp. 9 _, SRI Cees Cites ae

Dorner v. Iaco Clothes, ee ah: Speen 33

\ Drake-v. Hirsch, 40 Fed. Supp. 290, 1 WHC 702 ........ » 3

Elmore v. Cromer & Beaty Co., Inc., 6 WHR 861 2

Philips v. Star ita hice Cleaning a. A WHR

BPR OCI x MOET: RANG Mar REC Me 33

Federal Trade Commission v. Bunte, 312 U. S. 349,

353... sssiainsledsccsnetieAiebelchealianentensada Genpepekcageuialants 34

Fleming v. Lowell Sun Company, 36 Fed. Supp.

reversed 120 Fed. 2d 213, affirmed 31 U.

Teg WRI I ehaidinccdetesementicceesi a 30

Gerdert v. Certified Poultry & Egg Co., 38 Fed.

Supp. 964, 1 WHC 577 -.................... . <*, -

Goldberg v. Worman, 37 Fed. Supp. etter a

Kirschbaum v. Walling, 316 U. S. 517 : 27, 28

Ling, et al., v. Currier Lumber Co., 6 WHR 401,

> a Fed. Supp. 204 he 32

McKeown v. Southern California, 52 - Fed. Supp.

es I I iniitcccbinetinnaikamameaciis 3L

Muldowney v. Seaberg Elevator Co., 39 Fed. oe .

275, 1 WHC 606 ...... 32

National Labor Relations Board v. “Fainblatt, 306 U.

S. 601 (3 LRR Man. 535) ...................2. 25, 33

Nelson v. Southern Ice Co., 1 WHC 787 .................... 32

Polish National Alliance v. National Labor Relations

Board, 322 U. S. 643 27

Sapp, et al., v. Horton’s Laundry, 56 Fed. Supp.

901 Pomece cence nsewcccceasseserens 31

Schroepfer, et al., v. A. S. Abell Co, 6 WHR 940,

“ 138 Fed. 2d 11li 4 ¥é

iii.

| Page

Sun Publishing Company v. Walling, 140 Fed. 2d 445,

) certiorari denied 64 S. Ct. 496 -................... .. 23, 30

Strand v. Garden Valley Telephone Co., 6 WHR 1087 32

United States v. American Trucking Association, 310:

U. S. 534 . a “ 29

United States v. Darby, 312 U. S. 100 -............. 2, 98, 32

United States v. Underwriters Association, 322 U.S

. §33, particularly at page 549 2 27

Walling v. Oklahoma, 7 WHR 655 ee

Walling, ete., v. Partee, et al.. 6 WHR 865 ~.....-....... 33 —

Walling v. Oklahoma Press Publishing Company,

U. S. D. C. E. D. Oklahoma, June 12, 1944 25, 29

Western Union Telegraph Company v. Lenroot,

United States Supreme Court, Jan. 8, 1945 .. 26

Wood v. pyor Sand & Gravel ane ™ Fed. Supp.

Butaanae CITED. —

Interpretative Bulletins of the Wage and Hour Divi- — -

sion, U. S. Dept. of Labor, No. 1 ae

No. 5 , ae

Defendant’s Exhibit A «ft. Bl

SratvTe. -

Motor Carrier Act, See. 203(b) (9) ‘ 35

IN THE

\ “]

Supreme Court of the United States

OctoBer Term, 1944.

No.

CourtNEY M. Masee, Cuartes K. Bar-

NuM, Epwarp G. Tompxins, Norton

MockrincE, Georce 8S. Trow and WILL-

1M L. O’Donovay, ~

Petitioners,

against :

Wuite Piains PusuisHine Company, Inc.,

Respondent.

Motion to Dispense With Reprinting Record on

Certiorari.

State of New York,

County of. Rockland, _ ss:

Davi H. Moses, beimg duly sworn, deposes and says

that he is an attorney at law associated with Lexow & |

Jenkins of which firm Morton Lexow is the attorney of 3

record for the petitioners herein in this Court. That

your deponent is also admitted to the bar of this Court. *

That your deponent has been in charge of this matter

since Mr. Morton Lexow was retained as attorney of

record to seek review in this Court.

That this is a motior to have the petition for a writ of

certiorari heard on a-single printed \ certified copy of the ©

record‘in the court below and to dispense with the neces-

sity of having the Clerk of this Court reprint the eptire

record of the court below on this application for certiorari.

&o9

The reasons why this relief is requested are as fol-

lows: | |

1. Counsel has endeavored through negotiations with

counsel for the respondent and with the Clerks of the

Court of Appeals and the Appellate Division to obtain

sufficient copies of the record to file with this Court and

has been advised that no extra copies are obtainable.

2. That the petitioners prevailed in “the Trial Court

and the respondent, in appealing to the Appellate Divi-

sion, did not print xtra copies of the record. —

3. When the petitioners appealed to the Court of Ap-

peals of the State of New York from the reversal in the

Appellate Division, they obtaincd from the Court of Ap-

peals permission to have the appeal heard on the. few

extra copies of*the record that-were then available and

_ to dispense with reprinting the records

4. The petitioners are only able to obtain two copies

of the record, one of which has been certified and for-

_ warded to this Court, and the other copy is for use of

. counsel. ‘

d. Petitioners have endeavored to obtain from the

counsel for the respondent’a stipulation omitting un-

essential and unnecessary portians of the printed record

and after making every reasonable effort for that pur-

_pose have been unable to obtain such stipulation.

(a) On February 16th, 1945, your deponent wrote to

Frances K. Marlatt, attorney for the respondent in the

State Courts, as follows:

“Since the review will only involve the question

of Interstate Commerce, we. inquire whether»you

will on to omit unnecessary portions of the

recor

(b) On February 23rd, 1945, Miss Marlatt wrote your

deponent as follows:

‘*My client believes that the entire record is nec-

essary for the determination of any question in-

volved in this case and therefore is unwilling to

—— that anything be omitted from the rec-

=: .

Appeals to amend the remittitur so as to have that Court -

_ state that the cause wagdisposed of upon the single issue

of Interstate Commerce. That motion was granted and

on the 8th of March, 1945, the remittitur was amended

limiting the issue to the question of Interstate Commerce

(Record, ‘p.. 547). : :

(d) That pending such motion to the Court of Appeals,

Associate Justice Jackson of this Court extended the tinie

of the petitioners to apply for a writ of certiorari sixty

days from February 12th, 1945.

(e). That after the amendment of the remittitur by or- -

der of the Court of Appeals, petitioners’ counsel again

wrote counsel for the respondent asking to omit unneces-

sary portions of the record and on March 2lst, 1945,

we were advised*by counsel for the respondent that:

“The entire testimony of the complaining wit-

nesses, together with their exhibits, as well as the-

. + entire testimony of the defense witnesses must be

printed.’’ .

6. On March 29th, 1945, your deponent personally

brought the certified copy of the record to.the Clerk of .

this Court for filing and it was examined by the Clerk who

advised your deponent, that‘ to reprint the record, con-

sisting of over 560 pages, would cost at least Fifteen

Hundred ($1500.00) Dollars and that since the ‘time to

fe certiorari under the order of Judge Jackson possibly

expired on April 13th, 1945; that sufficient time did not

remain for the Clerk to print the ‘record in time.

=~ ob

LW . That’ your deponent inquired of the petitioners and

rr been advised that they are unable to raise. sufficient

money to pay for the printing of the record and the other

- disbursements incidental to this petition for the follow of

ing ‘reasons: /

(a) One of the illite: to wit, Courtney M.

Mabee is-in the armed services and .is unéble at

this time te contribute anything to the cost of. this:

litigation ;

“(< (b) The other petitioners are salatied employees

= and have not sufficient money o ‘Property to bear

the expense themselves; -

11 _ (e) That the ‘petitioner were promised by the

New vspaper Guild, who intends to file gape amicus

curtae if the petition’ erein is granted, a contribu- ”

tion to help pay the expenses and, for reasons uan-

known to the petitioners, at the February meeting .

of that-group, the motion to authorize the expendi-

ture’was inadvertently omitted from the calendar

and your deponent has been informed that the next

meeting at which such matter will be taken up, will

occur in*the month of May, 1945. aw

7 one

? 8. That the question involved herein is primari

of law and that the facts necessary to determine that

question can be summarized on a page and that since the

entire printed record will be filed with this Court, either

12 counsel’ can, in the petition and reply, quote such portions

of the record as they deem necessary to the issue of In- .

terstate Commerce which is the only issue upon which

review is sought and which is the only issue upon which

the New York Court of capes determined the federal

question involved.

WD 9. That the petitfoners have made araiinpenaite for the

—— of this motian, petition and brief for certiorari _

7 etfully request that on this proceeding the re- ..

NET of the entire record by the Clerk be dispensed

. with. If’ petition for certiorari is granted, counsel will

sin F

endeaver again to arrange to have a condensed record * 43

printed sufficient to review the question upon which cer- .

tiorari may be —

1 ee _ -DAVED H. MOSES.

‘Sworn /to before me, this )

7th/ day of April, 1945. . -

/Beatrice Rittendale 3

Notary Public, s “

Rockland County, | #

Ty THE

; i 14

SUPREME COURT OF THE UNITED STATES,

Octoser TERM, 1944, a

«No. ‘ , a

- Courtney M. Masee, Cuarnes K. Bar-

num, Epwarv’ G. Tompkins, Norton ~

- Mocxkrince, Georce 8. Trow and WI:L- ~

1M L. O’Donovay,

Petitioners, é

‘against -. ! 15

WHITE PLAINseP UBLISHING Company, Inc.,

~ Respondents

4 I

—

PETITION FOR WRIT OF CERTIORARI TO THE

-<COURT ‘OF _ OF THE STATE OF NEW

io <a :

To the Honorable Chief Justice, ahd the Associate Jus-

tices of the-Supreme Court of the United States:

‘ i \

ete 6

_Courtney M. Mapes, Cuartes K. Barnum, Epwarp G.

TomPkINs, NorTON MockRIDcE, Grorce S. Trow and Wiu-

iu L. O’Donovan, by their attorneys, pray that a writ

of certiorari issue to review the judgment: and order of’

the Court of Appeals of New York entered»in the above °

ease on the 16th of November, 1944, dismissing the com-

plaint against the respondent and affirming the judgment

of the Appellate Division of the Supreme Court: of New

York for the Second Judicial Department which. reversed,

on the law and on the facts, the judgment of the Trial

Term of the Supreme Court, Westchester County, and ~

dismissed the complaint on the law which judgment and

order of the Court of Appeals was amended by order

entered’ on the 9th of March; 1945.

* e ; ta

Opinions Below.

The opinion of the Trial Term, Supréme Court, West-

chester County, is reported at 180 Mise. 8, 41 N. Y. S.

2d 534 (our p. 535, et seq.).

The vpinion of the Appellate Division of the Supreme |

Court for the Second Judicial Department is reported —

at 267 A. D. 284, 45 N. Y. S. 2d 479 (gdaitonal Revers

pp. 551-561).

There is no opinion in the éoart of Appeals in affirm- |

ing the Appellate Division except the memorandum re-

ported at 293 N. Y. 781.

The order of the Court of Eom amending the re-

' mittitur appears in the record at page 547 and is reported

in the New York Law Journal, March 10th, 1945, and

has not vet been officially — ee

J urisdictional Statement.

The remittitur of the Court. of Appeals of New York

was entered on the 16th of November, 1944, and amended

by order entered on the 9th of March, 1945.

The jurisdiction of this Court is invoked under Sec-

tion 237 (b) of the Judicial Code, as amended, by the Act

of February 13th, 1925, for the reasons:

1. That the Appellate Division of the Supreme Court

and the Court of Appeals of the State of New York have

decided a federal question of substance not heretofore

determined by this Court;

2. That they have decided it in a way not in accord with

the applicable decisions of this Court; E

3. That the New York Courts expressly considered the

question an ‘open -one in this Court and one that should

be decided by this Court;

4. That the decisions in the.United States District

Courts are a conflict and some District Courts have sug-

gested that \the question should be decided by this

Court;

5. That the seal of the decisions of the Courts bélow

has begn to deny tov the poe their saa undgr a

federal statute. | | ®: “

The Federal Question as Stated by Court of Appeals.

“in the Amendment’ of Remittitur Is:

“Motion to’ amend remittitur granted. Return

of remittitur requested and when returned it will be

“49

amended by adding thereto the following: Upon

this appeal there was*presented and necessarily

passed upon ‘the question whether the respondent

was engaged in interstate commerce or in the pro-

duction of goods for interstate commerce within the

g ‘

= _ meaning of the Fair Labor Standards Act of 1938.

This court held that the respondent was not en-

gaged in interstate commerce or in the produetion

of goods for interstate commerce within the mean-

ing- of the Fair Labor Standards Act of 1988”

(Court of Appeals, March 9, 1945).

The federal question was passed upon in the motion to

dismiss the complaint, as appears from. the opinion of -

Mr. Justice Witschief, at Special Term, 179 Mise. 832;

o& N. Y. S. 2d 231, is as follows:

‘‘The action is brought to recover -overtime com-

- - pensation under the provisions of the Fair Labor

Standards Act of 1938, 29 U. S. C. A., See. 201.

et seq. The defendant published a newspaper at .

White Plains, N. Y., during the periods mentioned

in the complaint and it is alleged in the complaint

' that the defendant was engaged in interstate com-

merce and during said periods sent and delivere«!

its newspaper to various parts of the United

States and did not confine such delivery to the

State of Nev vy York. When the defendant discon-

tinued its velibientiah of a’ newspaper, its total

daily circulation was 5,000 of -which forty-two

copies were sent to points outside of New York

State. All of the objections made to the Fair

Labor Standards Act of 1938 in regard to its ap-

’ plication to the defendant have been overruled in

4 the U. S. District Court for the District of Massa- -

chusetts, in Fleming, Adm’r, etc., v. Lowell Sun

Co., 36 F. Supp. 320. The Federal Courts have

held that newspapers are subject to the Fair La-

bor Standards Act of 1938. A. H. Belo Corpora-

tion v. Street, D. C., 36 F. Supp. 907. And the U.

'§. Supreme Court has held that the Associated

_ Press is engaged in interstate commerce.* Asso-

ciated Press v. National Labor Relations Board.

301 U..S. 103, 57 S. Ct. 650, 81 L. Ed. 953. That

, Congress considered the act’as applicable to daily

‘newspapers is indicated by the eighth exemption

in Section 13 of the act which excludes weekly or

. semi-weekly newspapers with a circulation of less .

than 3,000, the major part of which is in the county

where the publication is issued. It is not for this

court to consider either the wisdom or the justice

of the appliéation of the act to daily newspapers

in such localities as White Plains, only a very

small portion of whose circulation goes without the

state.’

The Trial Justice passed on the federal question to the

same extent as Justice Witschief (41 N. Y, S. 2d 534, p.

“537):

(180 Mise. 8); (Record, p. 533).

‘Prior to the trial the defendant had moved be-

fore Mr. Justice Witschief to dismiss the complaint.

, The questions raised upon that motion were decided

in -acecordance with the statute and authoritative

precedents. The court at this time reaffirms the

decision of Mr. Justice Witschief (179 Mise. 832,

38 N. Y. S. 2d 231) to the ful) extent thereof.’’

The Appellate Division, in reversing the judgment of

the Trial Court, passed upon the federal question as fol-

lows (Record, p. 53), (45 N. Y. S. 2d 479, pp. 481-485),

(267 A. D. 284):

‘«* * © Nor is it necessary for us to pass upon .

these questions because this judgment must be re-

versed for the reason that appellant and’ respond-

ents were not engaged in commerce within the

meaning of the Act, and Congress never intended

it to apply to the situation disclosed by this rec-

ord.’’

Record, page 564:

‘“‘The conclusion is irresistibie that appellant was

engaged in a strictly local as distinguished from a

national activity, t. e., the local business of pub-

lishing a local newspaper. It did, not produce

goods for commmerce within the me of the Act

ane consequently, plaintiffs were not engaged in

any “process or occupation nece ssargeyto the produc-

tion thereof.’’ Ss

* . . * *

QO -

The question was raised on appeal to the Court of Ap-

peals, .by specification in the notice of appeal to that

Court, that an’appeal was taken from each and every part

of the judgment of the Appellate Division (Record, p. 561).

Under the practice of the State of New York, this was

the prescribed method for bringing up a review of the en-

tire judgment of the Appellate Division (Civil Practice

Act, Section 562). The question was briefed in the briefs

of both the petitioners and respondent submitted to the .

Appellate Division and to the Court of Appeals.

The Court of Appeals, after affirming the judgment of

the Appellate Division without opinion on November 16,

1944, amended the remittitur on March 9th, 1945, to state

as set forth above.

The grounds upon which it is contended that the ques-

tion.involved is substantial are set forth under the reasons

2%) granting the writ infra, pages 15 to 18.

- Statute Involved.

The “statute involved is the Fair Labor Standards Act

of 1938 (Act of June 25th, 1938, Chapter 676, 52 Stat. 1060,

U. S. C. Title 29, See. 210 et seq.). The — pro- |

visions drawn into question herein are: |

fas “See, 3. As used in this’? Act—~

a ¢ * — ‘ * .

**(b) ‘Commerce’ means trade, commerce, trans-

portation, transmission, or communication among

the several States or from any State to any place

outside thereof. ;

. , + » ee a . .

‘*(i) ‘Goods’ means goods (including ships and

marine equipment), wares, products, commodities,

merchandise or articles or subjects of commerce of

any character, or any part or ingredient thereof,

but does not include goods after their delivery into

the actual physical possession of the ultimate con-

sumer thereof other than a producer, manufacturer

or processor thereof. . «

**(j) ‘Produced’ means produced, manufactured,

mined, handled, or in any other manner worked on

in any State; and for the purposes of this Act.an

employee shall be deemed to have been engaged in

the production of goods if such employee was em-

ployed in pr oducing, manufacturing, mining, han-

dling, transporting, or inany other manner w vorking

on such goods, or in any process or occupation nec-

essary to the produetion thereof, in any State.’

**Sec. 7. (a) No employer shall, except as other-

wise provided,in this section, employ any of his

employees who is engaged in commerce or in the

production of goods for commerce—

**(1) for a work week longer than forty-four

hours ‘during the first year from the effective date

of, this section,

‘“*(2) for a work week longer than forty-two

hours during the second year from such date, or

(3) for a work week longer than forty hours

after the expiration of the second year from such

date, unless such employee receives compensation

for his employment in excess of the hours above

specified at a rate not less than one and one-half

times the reguiar rate at which/he is employed.”’

‘See also appendix: A and B which set forth Section

13 pertaining to exemptions and portions of Section 15

pertaining to. prohibited acts:

Statement of -Matter Involved.

The petitioners were employees of the respondent who:

‘was engaged in publishing a daily newspaper at White

Plains, New York. The petitioners were engaged in the

process of obtaining, receiving and soliciting news, re-

writing, editing and preparing the material for publica- -

tion and obtaining news and advertising from various

sources, and preparing them for publication. They sued

for overtime compensation under the Fair Labor Stand-

ards Act of 1938 and received an award of $42,010.34 for

overtime compensation under the Act from the Trial .

Court who tried the issues without a jury. This judg-

ment was reversed by the Appellate Division of. the Su-

preme Court, Second Department, or the law and on the

facts and the complaint dismissed on the law and. the

reversal affirmed by the Court of Appeals.

The respondent, to produce its’ newspaper, made daily

and immediate use of news dispatches received by direct

teletype connection from the Associated Press and Inter-

national News Service from points outside of the State

of New York and from other states and foreign countries

(Record, pp.. 48, 146, 295). These teletype machines

were operated daily from morning to night. (p. 296). ©

News. items were sometimes taker off the’ teletype ma-

chines and printed without change (pp, 412, 441). Re-

spondent had national advertising (pp. 48, 356) in the

same proportion as any other daily newspaper of simi-

lar size (p. 356). Advertising mats were secured from a

national advertising agency in Chicago, Ill. (p. 48), and

cuts to reproduce pictures from Philadelphia, Pa. (p. 48),

and comic strips, syndicated news, medical news columns

and panels came from Chicago and California (p. 49).

During ihe period in question, the respondent obtained

its pictorial service from the Central Press -Association

f eas:

13 ©

of Chicago, Ill. (p. 49). Some of the petitioners, at

times, sold advertising in Connecticut and New Jersey.to

concerns in. those states (p. 66) and some .of the peti- |

tioners, as reporters, covered events’in South Norwalk

and Greenwich, Connecticut (p. 276). The paper used by

the respondent came from Maine (p. 48). In February,

1939, respondent ran a full page advertisement announc-

ing that they were expanding their national and inter-

national news service because of importance to ‘their

readers, because ‘‘the war would influence everyone’s

life,’? and ‘because ‘fof everyone’s interest in wo

ditions’’ (p.-324). When France capitulated in this war

a special edition of the paper was run (p. 445). Tie

respondent had a daily, regular out-of-state circulation

(pp. 64, 65) to about 45 subscribers located without the -

state (p. 357)._Dhe weekly® production for this purpose

amounted to 270 copies. or over 14,000 per year.

. The total daily production fluctuated between 9,000 to

11,500 copies. The petitioners did not explore at the

_ trial how many of the other copies, produced and deliv-

ered to newsdealers or sold on the streets may have

reached interstate commerce or -how many ‘were sent

gratis or otherwise to national advertisers or similar per-

sons. Defendant’s Exhibit A, a study of small daily news-

papers under the Fair Labor Act, prepared by the United

States Department of Labor, Wage and Hour Division,

Economics Branch, discloses that a sampling of out-of-

state circulation of the average daily newspaper in an

average territory varied from 8% to 9% of the total

daily production. The out-of-town state circulation of

the respondent was about .5%. ——.

Under the agreement between the respondent and the

International News Service Department and the King

* Overtime under the Fair Labor Act is computed upon a weekly

base of 40 or more hours. (See 7-a of the Act, supra, which weekly

base was varied éach of the first three years of the Act.)

rid eon-

Feature Syndicate (p. 347), the respondent was obligated

fo send news items to the syndicate for republication in

other parts of the country if of interest.

The respondent by its link to the Associated Press and

the International News Service's ‘nation-wide networks,

was served by the same wireless, cable, and other means

of communication that are used by the Press Services in.

receiving and transmitting news (pp. 295-296).

Under the respondent’s agreement with the Interna-

tional News Service Department ‘of the Kings Feature

Syndicate, dated March 27, 1939 ( Petitioners’ Exhibit 15,

admitted p. 347) news obtained or published by respond-

ent was to be sent into the channels of interstate com-

mherce upon request or if interest to the other subscrib- .

ers of the news service.

The Appellate Courts below disregarded the use of in-

terstate instrumentalities and the flow of materials from

points outside of the state to the newspaper and consid-

ered only the sending .of forty-five copies each day of

each week to the subscribers out of the state. It further

held that such number was too insignificant or too inconse-

quential under the doctrine of ‘‘de minimis non curat lex”’

to bring the tespondent under the coverage of the Act.

A a

Questions Presented.

lk. Was ‘the respondent® engaged in interstate com-

merce, or in the production of goods for interstate com-

merce within the meaning of the Fair Labor Standards

Act of 1938 during:the period alleged in the complaint?

2. Was the Cotirt below correct in refusing to cop-

sider all the interstate activity of the respondent proved

. If the “respondent is held so engaged then each employee en-

gaged in that process or in production of goods for such commerce is

so engaged. Kirschbaum v. Walling, 316 VU. S. 517.

15.

except the actugl mailing of the product each day to the

45 out-of-state subscribers in determining: the question of

interstate commerce? :

3. Was tle doctrine of de minimis non curat lex ap-

plicable under the Fair Labor Standards Act and under

the facts of this case? 2

Reasons for Granting the Writ.

1, The Appellate Division of the New York Supreme '

Court*and the Court of Appeals have decided a’ federal

question of substance not heretofore determined by this

Court. The Appellate Division of the Supreme Court

of the State of New York, in its opinion in this case,

stated that it had made ‘‘independent search’’ (Record,

p. 555) and that it had found no case in the United States

Supreme Court where the Act was held applicable under

. the facts herein, stating (Record, p. 553):

-**While the Supreme Court has sustained the

constitutionality of the Act (United States v.

Darby, 312. U. S. 100 (1 WH Cases 17), and Opp

Cotton Mills v. Administrator,.312 U. S. 126 (1:

WH Cases 26), it has not considered the precise

questions now posed.’’

* While District Judge J. T. O’Connor in McKeown v.

Southern California, 52 Fed. Supp. 331, in holding that

the de minimis doctrine was inapplicable in a case arising

under the Fair Labor Act stated: oe

a “This important ruling has not yet been passed

upon by ‘either the Cireuit or Supreme Cofirts.’’

2. The Appellate Courts of New York have decided,

this federal question of substance not in accord with ap-

plicable decisions in this Court concerning Interstate

Commerce. , /

46-3. The Appellate Cousfs of New York have definitely

refused to follow the controlling decisions in the Federal

Courts upon the issue involved. The newspaper cases

where the precise issue was decided or discussed are:

Sun Publishing Company v. Walling; 140 Fed. 2d

445, certiorari denied ULS. , April 24th,

1944, 64 S. Ct. 496.

Fleming v. Lowell Sun Company, 36 Fed. Supp.

320, reversed on other grounds, 120° Fed. 2d 213,

affirmed by an equally divided court 315 U.S. 784.

Schroepfer, et al., v. A. S. Abell. Co.,.138 Fed. 2d —

111, certiorari denied U.S. , January 17th,

1944.

47 « Belo v. Street, 36 Fed. Supp. 907.

Walling v. Oklahoma Press Publishing Company,

District Court ‘Oklahoma, June 12th, 1944, ©

Fed. . -

~ The, decisions: in those cases and the discussions were

to the effect that the employees of newspapers situated

similarly as respondent were governed by the Fair Labor

Standards Act of 1938. PE Fc

4. There is a conflict between the many decisions in ~

the United States District Courts on the precise point in-

yélved herein. The overwhelming authority, however, be-

ing with. the contention of the petitioners.

48 5. The doctrine of ‘‘de minimis non curat lex’’ is not

applicable under the Fair Labor Standards Act, the great

weight of decisions under that Act and the Bulletins of

the Wage and Hour Division of the Department of Labor

all support this View._ We collate in our brief the many .

eases which hold that t Wider the history and structure of

the Fair Labor Standards Act, the doctrine of ‘‘de mini-

mis non curat lex’’ is inapplicable, especially where the

out-of-state activity is not casual or spasmodic, but a reg-

townie continuous daily feature such as in this case wheré

the newspapers that were sent out of the state were. sent

out each day of each week of each year to regular sub¥’ 49

scriberd and the weekly or yearly production for- that

purpose was substantial in amount (over 14,000 copies per

year). ¥

6. The Adininistrator of the Wage and Hour Division

of the Department of Labor has not acquiesced in the de-

cision of the New York Appellate-Courts below since both

in the Appellate Division and in the Court of Appeals,

the Administrator filed a brief ‘‘amicus curiae,”’ urging .

that the respondent was engaged in interstate commerce

within the meaning of the Fair Labor Standards Act of .

1938 under the facts proved: in this case.

7. That this case is of the utmost public importance

since if the decision of the New York’ Appellate Courts

stands, it will exclude from the coverage of the Wage and

Hour Law all the employees of virtually all daily news-

papers published in New York State, since the cireum-

stances of their publication is substantially similar to

that of respondent. According to the 1940 U. S. census

about one-third of the persons engaged in the producing

of newspapers in the United States are located in the’

State of New York. If the decision of the Appellate

(Courts of New York stand, it will deprive a considerable

number of those employees of thé benefits of the Act.

This will have the effect of adding to the Act a further 51

exemption than the one provided for in Section 13(a), °

' Subdivision (8), (Appendix A), which exemption is re-

stricted to employees of ‘‘any weekly or semi-weekly news-

paper with a circulation of less than three thousand, the

major part of which circulation is within the éounty where.

printed and published * * *.’’ Congress never intended

/ ta exelude from the benefits of the Act employees of

' daily newspapers or other . newspapers not ‘specifically

within the exemption‘ quoted.’ a

53 ad | 70 Lafayette Avenue,

“SA local retailing capacity, or in the capacity of outside sales-

52 Wuererore, your petitioters pray that a writ of cer-

tiorari be is8ued under the seal of this Court to review

the decision of the Court below.

Dated, April 10th, 1945,

COURTNEY M. MABEK, CHARLES K. BAR. 4

NUM, EDWARD G. TOM PKINS, NORTO}

MOCKRIDGE, GEORGE S.. TROW . and

WILLIAM L. O’DONOVAN,

By Morton Lexow,

_ Attorney for Petitioners,

Office & P. O. Address,

Suffern, New York.

Davin H. Mosss, . x

-STePHEN R. J. Roacn,

On the Briefs - :

APPENDIX A... -

See. 13. (a) The provisions of sections 6 and 7 shall

not apply with respect to (1) any employee employed: in «

a bona fide execftive, administrative, professional, or.

man (as such terms are defined and delimited by regula-

tions of the Administrator); or (2) any employee en-

gaged in any retail or service establishment the. greafer

part of whose selling or servicing is in ‘intrastate com-

merce; or (3) any eriployee employed as’a seaman; or

(4) any’ employee of a carrier by air subject to the provi-

sions of title II of the Railway Labor Act; or (5) any

employee employed in the catching, taking, harvesting,

cultivation, or farming of any kind of. fish, shellfish, crus-

. tacea, sponges, seaweeds, or other aquatic forms of ani-

ee 19

mal and vegetable ‘life, including the going to and re-

turning from work and including employment in the load-

ing, unloading, or packing of such products for shipment

or in propagating, processing, marketing, freezing, can-

—ning, curing, storing, or distributing the above products,

or by-products thereof; or (6) any employee employed in

agriculture; or (7) any employee to the extent that 4uch

employee is exempted by regulations or orders of the Ad-

ininistrator issued under section 14; or (8) any employee

employed in connéction with the publication of ‘any week-

ly or semi-weekly newspaper with a circulation of less

than three thousand, the major part of which circulation

is within the county where, printed and published; or (9)

any employee ‘of a street, suburban, or interurban elec-

trie railway,.or local trolley or motor bus carrier, ha t

included in other exemptions contained in this section;

or (10) to any individual employed within the area’ of

production (as defined by the Administrator), engaged

in handling, packing, storing, ginning, compressing, pas-

teurizing, drying, preparing in their raw or natural state,

or camhing of agricultural or horticultural commodities for

market, or.in making cheese or butter or other dairy

products; or (11) any switchboard operator employed in

au public telephone exchange ‘which has less than five hun- -

dred stations.

(b) The provisions of section 7 shall not apply with

respect to (1) any employee with respect to whom the In-

terstaté Commerce Commission has power to establish

qualifications and maximum hours of service pursuant to

the provisions of section 204 of the Motor Carrier Act,

1935; or.(2) any employee of an employer subject’to the

provisions of Part I of the Interstate Commerce Act.

shall not apply with respect to any employee employed '

in agriculture while not legally required to attend school,

or to any child employed as an actor in motion pictures

or theatrical productions,

)

‘APPENDIX B.

See. 15. (a) After the sidebien of one hundred and

twenty days from the date of enactment of this Act, it

shall be unlawful for any person— |

(1) to transport, offer for transportation, ship, deliver,

or sell in commerce, or to ship, deliver, or sell with

knowledge that shipment or delivery or sale thereof in

commerce is intended, any goods in the production of

which any employee was employed in violation of section

6 or section 7,'or in violation of any regulation or order

of the Administrator issued under section 14; except that

no. provision of this Act shall impose any liability upon

any common carrier for the transportation in commerce

in the regular course of its business of any goods not pro-

duced by such common carrier, and no provision of this

Act shall excuse any common carrier fron its obligation

to accept any goods for transportation.

IN THE

Supreme Court of the United States

OctTosEeR Term, 1944.

No.

CourTNey M. MasBee, CHARLES K. Bar-

num, Epwarp G.* Tompkins, Norton

Mockrivce, Grorce S. Trow and W1.-

tiAM L. O’Donovan,

Petitioners,

against

Wuite PLarss Pusuisuinc Company, Inc.,

Respondent.

BRIEF IN SUPPORT OF PETITION FOR WRIT

OF CERTIORARI.

Preliminary Statement.

The opinions below, the statement of the matter in-

volved, jurisdiction and the questions presented appear

in the Petition for a Writ of Certiorari herein and in the

interest of brevity are incorporated here by reference.

Summary of Argument.

POINT I.

The business of receiving, transmitting, exchanging

news, intelligence and advertising through the use of

Interstate Communications and. .agencies constitutes In- |

terstate Commerce and the Producing therefrom a product

(a daily newspaper) constitutes producing goods for in-

terstate commerce within the meaning of the Fair Labor

Standards Act of 1938.

POINT II.

There is no expression in this Gourt in a case under

the Fair Labor Standards Act ‘which justified the courts

below in applying the ‘‘de minimis’’ doctrine. On the con-

trarypthis Court has said in effect otherwise.

POINT IIL.

The doctrine of ‘‘de minimis” is inapplicable under

- the facts and controlling decisions in the Federal Courts

which decisions the Courts below refused to follow.

OTT

Argument.

POINT I.

The business of receiving, transmitting, ex-

changing news, intelligence \ and advertising

through the use of Interstate \Communications

and agencies constitutes Interstate Commerce

and the Producing therefrom a product (a daily

newspaper) constitutes producing goods for in-

terstate commerce within the meaning of the

Fair Labor Standards Act of 1938. - es

The provisions of the Act are set forth -in the petition.

Section 3 (a) includes ‘‘transmission”* as well as ‘‘trans-

‘portation’? and ‘‘communication’’ ‘‘among the several

states or from any state to a place outside thereof”’

within the word ‘‘commerce’’ as used in the Act.

Under Subdivision (i) ‘‘goods’’ includes ‘‘ products’?

‘for subjects of any character.’’

Under Subdivision (j) ‘‘produced’’ includes ‘handled”’

‘or in any other manner worked on in any state * * *2**.

The decisions under: the Act where employees of daily

newspapers were concerned support the petitioners’ con-

tentions of .coverage:

In Sun Publishing Company v.. Walling, 140 Fed. 2d

445, certiorari denied 64 S.. Ct. 496, April 24th, 1944, the

Court said:

—_—

“*The appellant seit The Jackson (Tenn.)

Sun, a newspaper with a circulation of 9,000 daily

; 24

and 11,000 on Sunday. Approxiinately 200 copies

of each edition are sold outside of the state. An

added number of copies are sent extrastate as com-

alimentary or to national adyertisers for confirma-

tion of their advertisements! The newspaper is a

member of the Asseciated” Press and not only re-

ceives news from it but transmits to it news items

originating in its own territory. It also receives -

news from the United Press Association, receives

from out of the state the comic supplement which

it distributes with its Sunday edition to both local

and outside subscribers, and uses syndicated arti-

cles sent to it by mail from various’ national serv-

ices. It carries a substantial volume of natidnal

advertising for out-of-state producers and distrib-

utors who usually send it their mats or electrotype

plates for printing. Substantially all of its paper

and other materials are.shipped to it from outside °

the state. Its employees include the writers and

reporters who gather, compose and edit the news

stories and write headlines, the linotypers and-

sterotypers, pressmen, subscription and cireulation

employees, and the like.’’

‘“‘The contention that the Act is not: applicable

to the appellant’s business because its employees

are not engaged in commerce or the production of

goods for commerce, must be repected on the author-

ity, among others, of Associated Press v. N.L.R.B.,

supra.’

Tn Flemmg v. Low ell Sun Company, 36 Fed. Supp. 320,

reyersed on other grounds 120 Fed. 2d 213, and affirmed

by an equally divided Court, 315 U. S, 784. 1 WHR 418,

at page 422: |

‘‘It is common knowledge that the instrumen-

talities. of interstate commerce are used and af-

‘fected by every new spaper in gathering and pub-

lishing news and preparing the newspaper for cir:

. culation both in and out of the State in which it is

published. This point has been raised time and

time again, and it is too late in this case, under the

doctrine laid down by the recent cases‘of Associated

Press v. National Labor: Relations Board, 301 U.

S. 103 (1 LRR Man. 732), and National Labor Re-

lations Boards v. A. S. Abell Co., 97 F. 2d 951 (2

LRR Man. 679), and cases cited, to raise it success-

fully now. Cf. Gibbons v. Ogden, 9 Wheat. 1, 6 L.

nd. 23; National Labor Relations Board v. Fain-

blatt, 306 U. S. 601 (4 LRR Man. 535), where the

Court said: ‘The power of Congress to regulate in-

terstate commerce is plenary and extends to all

such commerce be it great or small.’ ”’

* In Walling v. Oklahoma Press~ Publishing Company,

U.S.D.C. E.D. Oklahoma, June 12th, 1944, the District

Judge, in holding a local newspaper under the Act, stated:

‘*The Company receives its news in the usual man-

ner. Out-of-state news is received over telegraphic

wires by means of an automatic teletype: machine

which requires no one to operate. The Company

then selects that part of ‘such news as is desired

and publishes it, discarding the remainder. Its

out-of-state ads are received through the United

States mail, a large part thereof being in the form |

of mats and electrotype plates. The Company

deals with an out-of-state representative in handling

this out-of-state advertising. The advertisers pay

wi an out-of-state representative, and the out-of-state

' representative in turn pays the Company, after

deducting his commission. At the hearing, the

- Company, admitted that much of its newspaper

supplies, paper, machinery, ete., are purchased out:

side the State of Oklahoma.”’

Schroepfer, et al., v.A. S. Abell Co., 6 WHR 940, 138

Fed. 24 111:

‘‘There is no; question but that the defendant

is engaged in interstate commerce with respect to

the publication of its papers, the gathering of news

therefor and the sale of the portion of its papers

sent out of the state. N.L.R.B. v. A. S. Abell Co.,

4 Cir., 97 F. 2d 951, 954 (2 LRR Man. 679).’’

Belo v. Street, 36 Fed. Supp. 907, where the District

Judge stated:

‘‘Of course, the news is engaged’ in interstate

commeree. It sends its papers everywhere. It re-

ceives supplies and news from abroad.”’

Interpretative Bulletins of the Wage and Hour Division,

United States Department of Labor, No. 1, at page 4:

pee

‘‘From this declared policy of Congress it is -

evident that, apart from certain specific exemptions

enumerated later in the statute, Congress intended

the widest possible application of its regulatory ;

power over interstate commerce; and the Admin~

istrator, in interpreting the statute for the pur-

pose of performing his administrative duties, should

properly lean toward a broad interpretation of thie

key words, ‘engaged in commerce or in the produc-_

tion of goods for commerce.’ * * *”’

Western Union Telegraph Company v. Lenroot, United

States Supreme Court, January Sth, 1945, U.S.

“*It was long ago settled that telegraph lines

when extending through different states are instru-

ments of commerce and messages passing over

them are a part of commerce itself. Western Union

Telegraph Co. v. James, 162 U. S. 650, 654. That

‘ideas, wishes, orders, and intelligence’ are ‘sub-

jects’ of the interstate commerce in which telegraph

companies engage has also been held. Western

Union Tel. Co: v. Pendleton, 122 U. S. 347, 356;

—ef>; Associated Press v. National Labor Relations

Board, 301 U. S. 103, 128 (1 LRR Man. 732). It

is tnnecessary to decide whether electric ‘impulses -

intd which the words of the message are trans-

formed are ‘goods’ within the Act (cf. Utah Power

& Light Co. v. Pfost, 286 U. S. 165; Fisher’s Blend

Station, Inc., v. State Tax Commission, 297 U. S.

650; Electric Bond & Share Co. v. Securities & Ex-

change Comm., 303 U. S. 419), since the complaint

is not based on ‘shipment’ of impulses as ‘goods’

but only of messages. We think telegraphic mes-

\ 7

sages are clearly ‘subjects of commerce’ and hence

' that they are ‘goods’ under this Act, as alleged in

the compiaint.’’

See also Kirschbaum v. Walling, 316 U.+S. 517, and

United States v. Darby, 312 U.S. 100.

‘ Cases generally defining the scope of ** Interstate Com-

meree’’ and Federal Acts which may be urged to support

petitioners’ contentions are:

Associated Press v. * National Labor Board, 301 U.

S. 103..

U ested States v. Underwriters A ssociation, 322 U.

S. 533, particularly at p. 549.

Polish National Alliance v. National Lalor Rela-

tions Board, 322 U.S. 643.

‘

POINT I. iF

There -is no expression in this Court in a

case under the Fair Labor Standards Act which

justified | the Courts below in applying the “de

minimis” doctrine. On the contrary. this

Court has said in effect otherwise. =

In United States v. Darb% 312 2 U.S. 100, at p. 123, this

Court stated:

‘*Congress, to attain its objective in the suppres-

sion of nationwide competition in interstate com-

“merce by goods produced under substandard labor -

conditions, has made no distinction as to the volume

or amount of shipments in the commerce or of

production for commerce for any particular shipper

or producer. It recognized that in present day in-

dustry, competition by a small part may affect the

whole and that the total effect of the competition

' of many small producers may be great. See H.

Rept. No. 2182, 75th Cong., Ist Sess., p. 7. The

legislation aimed at a whole embraces all its parts.”’

In Kirschbaum v. Walling, supra, this Court noted, at

page 521:

‘‘Congress may choose, as it has chosen fre-

quently in the past, to regulate only part of what

it constitutionally can regulate, leaving to the

' States activities which, if isolated, are only local.’’

(Italies ours.)

It cannot be said that ‘the respondent “‘isolated”’ itself

from *‘Interstate Commerée.””

The Wage and Hour Administrator in his Interpretative

Bulletin No. 5, page 5, stated:

‘*Where an employee is engaged in the produc-

tion of any goods for interstate commerce, the act

makes no distinction as to the percentage of his

employer’s goods:or of the malt upon which he

works that move in interstate commerce. The entire

legislative history of the act leads to the conclusion

that Congress intended to exclude from the chan-

nels of interstate commerce all goods produced un-

der labor conditions detrimental to the health, effi-

ciency, and general well-being of workers. The

President’s message advocating the passage of

wage and hour legislation stated that ‘goods pro-

duced under conditions whivh do not meet rudi-

mentary standards of deceney should be regarded

as contraband and ought not to be allowed to pollute

the channels of interstate trade.’ The Congress

@ expressly found in section 2 (a) (1) that the pro-

duction of goods under labor conditions detrimental

to health, efficiency, and general well-being of work-

ers ‘causes commerce and the channels and instru-

mentalities of commerge to be used to spread and

perpetuate such labor conditions among the work- -

ers of the several States.’ The reference in section

15 (a) (1) to ‘any goods’ is convincing proof of

this intent of Congress to make no distinction as to

the percentage of goods which move in interstate

ecommerce. That section makes it unlawful for any

person ‘(1) to transport, offer for transportation,

‘ship, deliver, or sell in commerce, or to ship, de-

liver, or sell with knowledge that shipment or deliv-

ery or sale thereof in commerce is intended, any

goods in the production of which any employee

was: employed in violation of section 6 or section

te e

“Thus, there is no justification for determining

the applic ability of the act to a particular mployee

on the basis of the percentage of the goods -he

produces, or of his employer?s goods, which move

in interstate commerce.’ (Italics ours.)

The United States Supreme Court as to interpretative

bulletins said in United States v. American J'rucking

Association, 310 U.S. 534, at page 549:

‘*The Commission and the Wage and Hour Divi-

sion, as we have said, have both interpreted Sec.

204 ¢a) as relating solely to safety of operation..

In Any case such <interpretations are entitled to

great weight. This is peculiarly true here where

the interpretations involve ‘contemporaneous con-

struction gf a statute by the men charged with the

responsibifity of setting its machinery in motion,

of making thé parts work efficiently and smoothly

while they are yet untried and new.’ ”’

And in Walling v. Oklahoma Press Publishing Com-

pany, supra, the District Judge wrote in holding the

employees under the Act:

_. **Sinee June 1, 1939, no papers have been sold

by the Company to persons outside the State of

Oklahoma, unless it might be said that the send-

ing of papers to out-of-state advertisers constitutes

a sale, although no sum is paid for the papers

as such. The Company mailed, without charge, to

former Muskogee residents in the armed forces

approximately 120 copies of the Muskogee Daily

Phoenix, and approximately 17 copies of the Musko-

gee Times-Democrat. The Company also mails to

its out-of-state representative for ‘advertisers a

copy of each paper for each foreign advertiser.

Fie ag number of papers so sent’ is approximately 67

aily.’

In Sun Publishing Company v. Walling, supra, the

‘Cireuit Court said where 200 copies out of 9,000 were

sold outside: the state:

“Likewi it is unimportant that only a small

percentage of appellant’s newspapers are sent out °

of the state. U.S. v. Darby, 312 U. S. 100 (1 WH

cases 17);.Chapman v. Home Ice Co., 136 F. 2d

353 (6 WHR 570) (C. C. A. 6). The Act, by its

terms, is applicablé to newspapers generally be-

cause by its express terms it exempts weeklies

and semi-weeklies and those with circulations less

than 3,000.’’

In Fleming v. Lowell, supra, the District Judge ob-

served:

‘*The respondent diate § in resisting the order

sought, that the Administrator is. without jurisdic-

tion over. the. respondent’s affairs because of the

infinitesimal amount of respondent’s ° circulation

that erosses the state lines.

‘‘In support of this seats the respondent

argues that more than 98% its total average

daily circulation is distributed’ entirely within the -°.

Commonwealth of’ Massachusetts:. To be sure, the

Congress in passing the Act .was exercising its ™

power to regulate commerce to correct and.-elim-

inate the conditions referred to «in its findings set .

out in Section 2 (a) of the Act. However, ‘the

percentage or number of newspapers of .the re-

spondent that crossed state lines is not controlling °

on the question of whether or not the respondent:

is engaged in commerce between the states.’’

The Appellate Division below sought to distinguish ‘this .

case by stating (Record, p. 560):

‘*Respondents also rely én Fleming v.-Lowell Sun-

Co. (36 F. Supp. 320; reversed on other grounds,

120 F. 2d 213, and. affd. by an equally. divided

court, 315 U. S. 784). That case, so far as material,

Pe authority only for the proposition that a large

newspaper is engaged i in interstate commerce. (See

Schroepfer v. A. S. Abell Co., supra, p. 115.)’’

The Wage and Hour Administrator has expressly de-

nied any such distinction. See Defendant’s Exhibit A,

page 67: i :

‘“‘The Wage and Hour Division has generally

held that employees of small newspapers, when not

specifically exempted by the language of Section

13 (a) (8) of the Act, are covered by the wage

and hour provisions of the law if they aid in the

flow of interstate commerce to the paper or if they

help to produce a paper or job work which goes

° outside the state or léads to a flow of commerce

_ across state boundaries.’ This interpretation has

been applied to small newspapers as well as large

ones, and. almost,all newspaper employees not

specifically exempted have, in short, ‘been held to

be covered.”’

POINT Il.

The doctrine of “de minimia’”” is tanpelicable

under the facts and controlling decisions in the

Federal Courts which decisions the Courts be- °

Jow refuse to follow.

>» The Courts below relied on three cases in : tke Distrieét

Courts. These cases are:

‘ Goldberg v.:Worman, 37 Fed. Sup. 778.

Zehring v. Brown Materials, 48 Fed. Sup. 740.

They are opposed, ‘by such cases’ as: g

; WicKeown v. Southern California, 52 Fed. Supp. 331,

6 WHR 1016, where District Judge J. T. O’Connor refused

to apply the’ doctrine under the Wage, ands Hour Law

where the interstate activity, as small as it might be,

1 Wage and Hour Division, press releases, July 14, 1988, and Au-

Bust 13, 1941. : ;

Sapp, et al., v."Horton’s Laundry, 56 Fed. Sup. 901.

was a regular every “day arid every -week part of the busi-

ness of the employer and was; not casual or spasmodic.

He stated:

‘*The activities of the plaintiff, under the facts,

were not casual nor spasmodic, but rather a con-

tinuous, regular and integral part of his everyday

and every’ week business, partaking of an interstate

character. Withholding: recognition of these salient

' faetors would be interpol ang language into the

Act which was not intendéd by Congress nor ob-

served by the cases construing the statute. It is’.

the opinion of this court that the rule de minimis

+ is not applicable in view of the decisions cited and

’ the stipulation submitted.”’

“In Lang, et al., v. Currier Lumber Co., 6 WHR 401, 50

Fed. Supp. 204, the District Judge, in noting that this

Court stated in United States v. Darby that Congress

‘*has made no distinction as to, the volume or amount of

shipments,’’ stated: ie

‘Therein lies the distinetion and in our’ opinion

it is now. generally accepted that when even less

than one per cent of one’s business ig in er

commerce, that business is subject to the Fair La

Standards Act, unless that ‘less than one per cent’

was a casual or isolated sale.’’

_ Also:

Drake v. ‘Hirsch, 40’ Fed. Sup. 290, 1 WHC 702, ee

S. D. C. N. D. Georgia. «

- Muldowney v. Seaberg Elevator Co., 39 Fed. Sine.

275, 1 WHC 605, U. S. D. C. E. D. New York.

Nelson v. Southern Ice Co, U. 8. D. C. Ni: D.

Texas,~*1 WHC 787.

Strand v. Garden. Valley Telephone Co., 6 WHR

- 1087, U. S. D. C. District of . Minnesota.

Elmore v. Cromer ¢& Beaty Co., Inc., 6 WHR 861,

U. S. D. C. W. D. South Carolina, August 2,

1943. ..

Philips v. Star Overall Dry Cleaning Co., 7 WHR

92, U. S..D. C. S. D. New York, January 6, 1944. rN

Dorner v: laco Clothes, Inc., 7 WHR 35, U.S. D. :

. C, N. D. Ilinois. :

Walling, etc., v. Parteeet al., 6 WHR 863, U. S. D.

C. Tennessee. : .

Walling v. Oklahoma, 7 WHR.655, U. S. D. G. E..

ie D. Oklahoma. D. eae “

/ Gerdert v. Certified Poultry & Egg Co., 38 Fed.

» Supp. 964,°1 WHC 577.

Wood v.. Central Sand & Gravel X0., 33 Fed. Supp.

| [sa+—-40,:1 WHC 326. : | #

And others.

The most that may be said of the few cases repre-

| senting ‘the minority view is that if the Interstate Com-

. “merce activities are ‘‘casual,’’ ‘‘spasmodic,’’ ‘‘isglated,”’

‘rare’ or ‘‘occasional’’ there might be some basis for

invoking the doctrine although this Court has never said\

so and the Wage and Hour Administrator has denied it.

But where, as here, the Interstate Commerce is a regu-

lay every-day, every-week activity, the doctrine, no mat-

. ter -how far it may be stretched, is wholly inapplicable.

Furthermore, the case at bar involving a daily news-

paper is radically different than the three cases cited

above relied upon by the respondent. The respondent

herein is dependent upon its direct tieup with instru-

mentalities and agencies of Interstate Commerce to pro-

duce its product without which it could not successfully

compete or operate as a daily newspaper.

The Appellate Division below seized upon a stra sen- _

tence in National Labor’,Relations Board v. Fainblatt,

_ supra (p. 607), to justify.invoking the doctrine of ‘‘de

minimis.”’ This they were. not justified in doing be-

cause: a i eae a

1. The decision in the Fainblatt case was under an-

other Federal Act. and as Mr. Justice Frankfurter so

}]

aptly stated th Federal Trade Commission v. Bunte, 312

_U. S. 349, 353: ; 2

‘*Translation of an implication drawn from the

special aspects of one! statute to a totally different

statute is treacherous business.” .

2. The statement was not necessary to the decision nor

was the doctrine actually invoked in that case.

3. There is further language in this same chse contrary

to respondént’s position.

4, And as the Court observed in the same case (p.

606):

“*The amount of the commerce regulated is of

special significance only to the extent that Con-

gress may be taken to have. excluded commerce of

small volume from the operation of its regulatory

measure by express provision or fair implication.’’

Neither is presént under the ‘Wage and Hour Law.

First of all, under Section 15 (a) °(1) as pointed out in

the Administrators Interpretative Bulletin No. 5, the Act:

refers to ‘‘any goods’’ thereby negativing the idea. that

no goods, unless. substantial in volume, should be covered

under the Fair Labor Standards Act, and as the Admin-

istrator also pointed out, the Congress had carefully

worked out the many exceptions or exemptions and spe- -

cifically exempted newspapers having a circulation of

3,000 or less ‘‘the major part of which circulation is with-

in the county where printed and published * * *.’’ The

Congress well knew that most daily ‘local papers would .

necessarily have a small percentage of circulation be-

yond the place of publication. With this in mind they

_ selected the special type of newspaper. to be:.exempted

and there included all others that utilized the channels

of interstate commerce. : :

An example of an express: provision for exemption is

the Motor Carrier Act of 1935 whieh was enacted by al-

most the same Congress that hited the Fair Labor

Standards Act. Since the.Fair Labor Standards Act, by

express provision, refers to the Motor’ Carrier Act of

1935, it may be said that these Acts are in “pari imate-

ria.’’

In the Motor Carrier Act, the express provision ex-

empting the carriers is found in Section 203 (b) (9)

which is as follows:

**the casual, occasional, or reciprocal transporta-

tion of passengers or property by motor vehicle in

interstate or foreign commerce for compensation

by any person not engaged in transportation by

motor vehicle as.a regular — or busi-

“ness * * * are exempt.” —

If it took an express provision to exempt even a casual

or occasional transporter of persons or. property. from

_ the provision of the Motor Carrier Act then surely it

would take an express provision to exempt a newspaper

which did not already come under the express exemp-

tion where such newspaper was in regular, daily use in

- the channels of iterstate commerce and daily shipped

a portion of their products interstate.

IV.

- Conel usion.

, itis respectfully, subeaitied that this poe for a:

- writ of certiorari should be granted.

Respectfully submitted,

= MORTON LEXOW,

, ‘ Attorney for Petitioners,

‘ Office & P. O. Address:

70 Lafayette Avenue,

Y Suffern, New York.

Davin H. Mosss,

STePHEN R. J. Roacu,

On Brief.

Dated, April 10th, 1945.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.