# Petition for Writ of Certiorari — Mabee v. White Plains Publishing Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386405_0036%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1946 - **Citation:** 327 U.S. 178 ## Text Vics . ve Qua, L&E : om ‘ ' 4 pi get! % ; = P s* d of Be 212 1945 & | , CHAPLES CLNUNE GROPLEY i. aS cee Supreme Court of the Rnited States October Term, 1944. es oi No. 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 ye ~ ~~ 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 Q 4 2 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 a 3 4 (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- =: . (c) Thereafter, your deponent moved in the Court of 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 is a 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 ; “(; 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.”’ 28 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, ~ 29 ‘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 » 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. é 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. ei a 32 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. .. 33 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 - po }] 34 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): o “*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. : : oe vJ 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. 36 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386405_0036%3A2. Public record. Not legal advice.