Petition for Writ of Certiorari — Kennedy v. Silas Mason Co.

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” PETITION FOR WRIT OF PF CERTIORARI.

: Sommary Statement ot The Matters Involved

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_ AUTHORITIES CITED. |

: : Albena ¥. King-and Booser, $10 U. 8. La

oh Armour & Company ¥. ‘Wanjock, 328 U. S. 126.

-- -Bell v. Porter, 159 Fed, (24), ——

Brooks v. U. 8. 267 U: S. 482; 45 8. Ct. 345. es

Buckstaff Company v. ‘McKinley, 808 U.S. 858 ~

+ Caminetti v. U. 8. 242 U. 8: 470; BY S: C192

ne Champion v, Ames, 188 U. 8. 821; 288, Ct 821

Crabb v. Welden Bros., 65.F. Supp. 369.

- Garey v. U. 8, 14 U. | eaeeeves Stee Wig

"Finerty v. Bryan, Ind, 16N. E. (2a) "882, $83.

ut Gordon v.B S., (1896) 81 Ct. Cl. 254;. (1908) 26

Op. J Att. Gen. 404... 7

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AUTHORITIES CrTED—(Continaed)

ae seuechinnin 5.

i Reid v. Colorado, 187 U. S. 187; 28.8. Ct 92 po

= Sim v. State, 254 N.Y.S, 160,161; 142 Mise. 159...

~< Skidmore y. Swift & Company, 228 U.S. at 1

Statutes: 1. I. Judicial Code, See: 240 (a), Title 28, ae

‘. Keb ot Taly 1940 (Public No. 703, ee

64 Stat. 712, 5 U.S.C.A. 189-a) a

| “8, Fair’ Labor ‘Standards : Act of June

ee. oe "25, 1988 (c-676; 52: Stat. 1000, 2 29 .

USCA. 201) - nee

Swisher ¥-U. 8. 67 Ct. Cl. 123. ia ae

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Timberlake v. Day & tinineman, ine, 49 F. Sopp oe

. -Umthum 9 Vv. Sel & Zimmerman, Ine. '16 N. Wy. (24) e. 2 :

” 258. a | Eyl 11

"United States v. Hill, 248 US. 3 4205 39S. Ct. 143. M4 i

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| "HARRIS KENNEDY, ft gS ca 4

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"sILAs MASON ‘COMPANY, Pe .

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PETITION FOR WRIT OF CERTIORARI TO THE 2

__ UNITED STATES CIRCUIT COURT OF APPEALS

To the Honirable the Chief Juation and Aavosate Justion

of the Supreme ‘Court of the United States:

“Your petitioners; Harris Kennedy, Howard Sweatt, — et

L. M. Williams, William S. Jones, Harry Johnson and. |}

James E. —_ praying for writ of certiorari, eacuad eee

show: ao oe

ee + SUMMARY STATEMENT OF THE - a ae

_ MATTER INVOLVED, ee Ne. ;

Petitioners (not. firemen) sh aeons poo ote : =

alties, ant. | pemeai fom, said to “be due them under the ee

_\ment, ind that Silas Mason. Company. shipped out

| _ eee sa the Reames ees 2 2 which -

* "the condhet of the war: (R-2y 21). Petitioners’ work re-

ae The plant and equipment used in the-products, activities, —

, _as well as goods worked on; were the ptoperty of the United —

| 2a tn a 8 (e606, 82

"Stat, 1060, 29 USCA. 2 ), by the Silas Mason Company,

operated this facility for the Government under the con.

ventional’ wartime “cdet-plus-s-fixed-fe contract, and it.

was during the operation of thir facility, | making mm

-itions for war, that petitioners worked. *s Ae .

; A motion for summary judgmienp was bythe:

Silas Mason Company (R-19), setting out that /plant.

belonged to the Government, the title to the raw. materials

' processed into munitions was at all times in:the.Govern-’,

munitions upon orders of the-Government, for the prdee

cotien of the war by the Governioent sod #9 ol ‘The

Ht Wan mapeneat Gat thls was Oss jiged wartime >

. “cost-plus-a-fixed-fee” contract: At this 7 suttebaiae

“ceteed in the maniatacture, fabrication, and loading'af

shells, munitions, bombs and other materials and products, -

which were shipped out of the state of Loyisiana during, :

i.

lated to the manufacture of these munitions» ‘{R-8, 21).

States (R-21) ; ‘and the contract, pursuant to which the -

; Silas Mason Company constructed and operated the plant,

a _ Manon: ee ene :

ustitusé employees of contractor? (R-45, 118). The / ©. .

as to receive specified fees frém the'contract =~

dit: nto reimbursement ‘for costs (R-21), the _

“ contpac Steinar gorepper Chel

-ighte therefrom any amount found as a res Tyee a

« Plegotiation to represent! excessive profits

A contract contemplated compliance by‘t Silas Mason Com -

*.pany with*various federal and state egul:

applicable to private employers, such as complying, ap- :

- (propriate situations, with the Eight Hour Law (R-88, 39, ° ~

| 40; 41,48) and with the Walsh-Healey Act (R-47, 51, 116). —

| Compliance with the Social*Security Aet was required be

: cause included among the reimbursable costs (R-54).

} en iy cas ada Gs ee te

. Workmen’s Compensation Laws and to “procure all neces-

sary permits and licenses, obey and abide by all applicable

~ laws, regulations and ordinances and other rules of the

-. United States-of America, of the state, territory or sub-

Sop cmd pee watery C0). The Sian en

_duly constituted public authority”. (R-75). The Silas -

Mason Gompany bought thé raw materials in. the open —

: . market, but under. the contract .(R-73). “it was stipulated .

“ that title vested in the Government from the moment, of

= —- Silas Mason Company. eee.

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Bp Phe erveaoprage irr

by the petitioners for transportation outside the state.of

Louisiana did not constitute {interstate commerciy within“

_, the meanja of the Fair Labdr Standards Act, because the

8 goods were the property af thé-JInited States during their i

. manufacture and interstate transportation (R-282, 289). -

_ the Fifth Cnn Got of hype ti yn

“ing with the datrit judge that the petitionins re

Se “engaged in: the. produetion af goods for commerce

ee Fifth Cireuit Court of Appeals additionally held/that the

| Se Mason Compe ws Dit an indent oe acta

eee ~ because the Government exercised a con’ 3

and the. Government, being under the authority |

: Congress. of July 2, 1940 (Public No, 708, 54 St

‘entitled “ Ari“ Act. to Expedite the Strengthening '

sal Defense”), petitioners, were. therefone acjually m

actual Phelea! pomsnien of the ultimate consumer ‘there

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ot ai a te prota mec emer

“ing (R-262).. nee hes

prea st 7 : _ JURISDICTION. etl

: "i siglo, pens hh: Ch Os eel

of Appeals was entered. December 12, 1947 (R-251); the -~ :

per Fettelng rovenring wg yenderd ox: Jennary

15, 1 (R269). Ske pie

The jurisdiction of this Court is invoked under Sec- bps

ie ‘on 4a th Sal Gea edad Ae oF |

s ruary 18, 1925 (Title 28, U:8.C.A.. 347). | |

ee QUESTIONS PRESENTED. . ee ae ae

| sin qeeathion peamaladare,

on toe c/n Whither: weeiilate predueid ina, Goren: e

"ment facility by a “cost-plus-a-fixedYee” contractor with

- the.Government, for shipment out of the United States, ©

_P tly Cer nd ili he retin

of the laté war, are are ene ——

| Fair Labor Standards Act. :

oe “2 Whether munitions of wat, proiueed'in'

fealty belénging to the ‘Government, by a “cost-plus-a-

— 2” contractor, . m raw materiale, title to ch

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ho eet arpa Subsidiary to the question immediately

"TL above is whether or not the merely constructive possession,

“/.-. mate consumer provision create the exemption, eek.

ag July 2, 1940 (Public No. 703, 64 Stat. 712, 5 USC, Ko , ;

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; - mechanics, within the mieaning of the Act of July 2, 1940

_ <. (Publie No. 708, 54 Stat, 712, 5 U.S.C.A., 189-8).

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~~". gn contractor, or merely an agency of the United States —

of “eqmmerce”, looked to the ultimate purpose of, or the

| “end use of, the munitions; and finding that’ to be “war”, :

“<2 aid that “war” and “commerce” are not synonymous, it _

ah te be ae : fast ces , ; oF:

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REASONS FOR GRANTING WRIT.

‘Petitioners amign ax reasons for the truance of

' a writ of certiorari the following: may. |

.. °. 4 Phe issues presented are of.

public importance, due to the fact that mucli }

Uatertal wan produced during ‘ie war by “costplu-e. Ne

_* fixed-fee” ‘contractors, under identical or similar condi- — ¥

rice mane Wut tomes gpg

: volving hundreds, if sot thousands, of litigants, presenting eso

problema here; and it is of prime-importance that the |

en dy a tte en fe .

+.

: 2. ‘The decision 4 d herein by the. Fifth

-Gireuit: is contrary to the of the Seventh Circuit; .

"in the case of Bell v. Porter,-159-F: 2d 117, where the .

Court specifically held that munitions produced under like

cireumstantes. wore ctenmere, within the messing of the ——

"Fair Labor Standards Act. .. ae S 3

. " 3. ‘The ‘doclalon below tn comic: with- rele

- vant decisions of thi Court, in ite holding that a ‘‘cost- an 7

: plus-a-fixed-fee” gontractor, engaged’in the production of. -_.

| munitiona, was mere agency of the United States Gov- Ss

"ernment, conflicting with the decisions of this Court ifithe

cases of Alabama v. King qnd Boozer, $10 0. S. 1; ‘Buck-

ae McKinley, $08 U. S. 58; Curry-v. us,

4

an 818 U_S: PoOUe NG, AS 2s

ree... Tbe Fifth Cireuit has that. this

plow-a-fizpd-fea” ontract, similar to others if

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7 : E ol on e . r

ee eae overnr Tuy the war, was not governed -

‘quoad the workers by xe provisions of the Wage & Hoyr

- Law, but, to the i , by the Act of Congress of July’

|. 2, 1940 (Public No. 703;-54 Stat. 712, 5 U.S.C:A., 189-a),” .

: holding, in effect, that these-employees were employees of e

the War Department of the United States. This is the first

time any ‘court has said this. Thus there is presented the .

: important issue as to whether war workers, under a “cost- .

| plus-e-fixed-fee” cimtvactor, are entitfed to the benefit of:

"the Wage &-Hour Law. < a eee

‘ WHEREFORE, your pititionera saaiaaniaiy pray

--that a ‘writ of certiorari be issued out of and under the

geal of this Honorable Court, directed to the United States —

Cireuit Court of Appeals for the Fifth Circuit, command-

"ing that Court to certify and send to this Court for its re-__

view and determination, on, a. day certain to be named:

ee therein, a full and complete transcript of the récord ‘and :

"all proceedings in the case No. 11,976, antitled on its docket

“Harrie Kennedy, et al, Appellants, versus “Silas Mason —

/ Company, Appellee”, and that said judgment of the said

., Circuit Court of Appeals may be reversed by this Honor.»

" ‘ble Court, and that your petitioners may have such other >

and further relief in. the premises’ as to thts. Honorable -.

| Court may seem mest and just} and for such other reliet

eee ee ¢ ‘

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; LEONARD LLOYD LOCKARD

Attorney for Petitioners. | Ae

904 Ardis Bldg. : eS

. Shreveport, La. ~

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” MEMORANDUM BRIEF IN SUPPORT OF PETITION as

| MoR WRIT OF, CERITORARL _

May it please the Court: wns a

“1 ike decision of the Cirentié Court of Appeals has

not bebn’ reported’ but begins at pagp 251 of the record. —

_ Jurisdiction of this Court ii invoked under Section 240(a)

MERE a oe EY a EY

18, 1925 (Title 28, U.S.C.A., 347). a

cee A statement of the case 1s found at pages 1 to 5

_ of the foregping gpplication. SSA oe

oS nage ASSIGNMENT OF ERRORS

ee [Ss ‘The Coutt elow errlffin finding that-com-

‘merce was: not involved in. this case ‘within the meaning

\ of the Fait Labor Standards Aet Law;- et ’

ale he Cote erred in ia ‘conclusion thet the + ‘

: munitions of war. involved herein were not “‘goods” with- .

in sub-paragraph “i”. of Section 3 of the Fair Labor —

ae es

s : < Se Goth ated tn seadlietonh the ae

"> ployees a ‘ “cost-plus-a-fixed-fee” contractor producing -

+ miynitions for. the- United States Government, were not. -

"covered by’ the Fair Labér Standard Act but by provisions

CAS ee ee resid ig eae eeaun cia saad :

180m; Se ie

we ie Mentied ond ati: ne ‘that Silas

# Mason Company, "a twas a ylere agency of, the”

ies of the U tates; |

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ae ey slates ek ao. °

10.

, & The Court erred tn locking. to the’ end wee:

fe or ultimate purpde af the goods produced as a test under 3

: the Fair Labor Standards Act, oe ln a

sét out or implied in the act; 7 es

oe is Caer wed be cdacilig Unk ening

i eel eis ia a a a :

~ ARGU =

| The public ,in ortance of the ini iene we

this application ¢ can scarcely’ be overstated. During the

7

last war. the government expended forty billion dollars of .

: its total war effort t6 obtain war supplies through the med- -..

dum of “coat-plus-ti-fixed-fee”, contracts similar to ths in e i

"this case (see : report of the Judiciary Committee in.connec- _

. * tem with the Portal to Portal Act of 1947). -Out of that __

By immense business have arisen multitudes of claims like the - :

‘Sone asserted here, and the lower federal courts a are: now aE

busily engaged i in the disposition of them. These cases’ are

‘being variously degided in thé United States -Distriet

'Coviets and “in the state courts. This Court has-had to

deal with cases arising out of similar circumstances as

: > manifested ini the case of Armour & Co. v. Wantock, 823 _

ae, and the case of Skidmore v. Swift & Co., $23

_ U.S. 184. Among the cases involving similar issues that

are, or have been, in the United States on Courts and

the state courts, we refér to: ee alae F

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Umthun ». Day & Zimerman, Ie, 16NW

‘ (@d) 258. .

d jase sy “Timberlake v. Dey & Zimmerman, ne, 49 F.

Supp. 28.

" Lasater Herewles Powder Con 7 WH.

Cases 150: _ spat datba

lee v. St. Johns River 7 Shiphling Co, 69

ee soe tee

Barksdale v. Ford; Baker & Davis, 70 F. ‘Supp.

690.

Deal & Co. v. Leone’, 196 S.W. ) 991.

ere "Steward v. Kaiser Co., 71 F. ‘Stipp. 551.

‘Anderson v. Federal Cartridge Corp., 7 W.A.

-:, Cases is: os

Matlock v. itenlioriees & Porter, 6 ee Hour

Report. 917.

Crabb v. Welden Bros, 65 id Supp. 369.

This is 5 simply illustrative. The issues thus raised. here 7

“are alive—current,. and a devision by this. Court would be _.

Most useful j in the administration of the law. aa

a6

ee. “TM United States Circuit Court of Appeals for the’

Seventh Circuit, in the case ‘of Bell w Porter, 159 F. att

(2d) 117, did squarely reach a position’on the issue of

: . “commerce” — contrary to die — reached by

~

Se ‘complainants on-the issue of “‘commmierce”, , it found against

-. “-was-not’ work time: within the méaning of the Wage &

ee. this Court in recalling the writs without a hearing, but ©

ee : :. 2

the Fifth Circuit in this case. theta ned”

"writ should be granted herein in order.to resolve this con-

‘flict between the circuits.; We observe, of course, that |

‘this Court, after granting a writ of ‘certiorari in the Bell

v. Porter cage, . did later reverse itg position and. recall”

_ the writs without a hearing (67 S. Ct. 1092). But we

- note that in this case, while the circuit court found with.

them on the merits, holding that sleeping. time of firemen.

: ‘Hour Law (petitioners were not firemen). We have ‘no

way of knowing whether. that: or other reasons actuated 3

we make bold to , Suggest, as illustrative ‘of the need of .

clarifying this law, that i v. Porter had been taken

‘and decided, this application and others, doubtjess = :

‘made and to follow, would be unnecessary. <i A

ae ‘Mareover, the contract with Silas Mason Gompaniy et

- here was typical (see opinion of the District Judge in this

"case, R-222) of the’ multitude of other “cost-plus-a-fixed- .

’ fee” contracts entered into by the goverriment, aspects of —

‘which this Court has considered. ‘While not précisely pre-_-

‘senting the-same issues, the decision below is apparently

contrary to: ‘the ruling of this Court that “cost-plus-a-fixed-.

- fee* contractors are not agents or instrumentalities of the

United States, pantionarsy the following cases: =

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lala King and Beane $10 US. 1.

Aaa Buckstaff Co. v. ‘McKinley, 308 Us. 358.

See? Curry % US. $14 U.S. 1h.

| Penn Dairies v. Milk Contd Commission, $18

US. 861. :

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* "The decision of the court that: the eerie law

was the Act of July 2, 1940 (Public No. 708, 54 Statutes

712, 5 U.S.C.A. 189-a, entitled An Act to Expedite the —

Strengthening of National Defense”) was an extremely ee

important, ruling, the effect being that the Wage.& Hour.

Law of 1938 was supergeded : and set aside as to employees ©

of the “cost-plus-a-fixed-fee” contractor for the govern-

ment. This is the first time this view has been projected by

any court. Tt presénts an important problem connected with -

interpretation*of the Wage & “Hour Law. If, indeed, on

this point the Fifth Cireuit is correct, it would be disposi- ;

tive of ‘the gréat mass of cases with identical issues now |

— through the federal courts.

This Act of July 2, 1940 provides, { in ‘Sethe 4

: thereof, only for. “laborers and mechanics”: Petitioners

_are described as being either safety inspectors or foremen, =o

— in the category of laborets and ehscmmcces |

‘Swthr US, tC. 128. ae ioe

| 28 Op. ‘Att. Gen, 404 ee

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Sim v. State, 254 N.Y.S. ‘150, 151; 18 Mise.

159. fet | =

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fi Finerty » Bryan, Ind. 16 ‘NE. Cr 882, 88s.

38 not:-within the stage We waster i mechanics, “

this Act of July 2, 1940 ‘a. mere pro tanto repeal of the

. Wage & Hour Law, or did it make the Wage & Hour Law

completely | unavailable in the situation we ‘have here?

‘Those are issues that only this Court ean retolve with such,

ney ag | to set — at rest... 3 ,

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: Pinal, the Court of Appeals tak the view Ut

" “ag these munitions were made for war, which might be ,

the very antithesis of commerce, there was no commerce

" within the meaning of the Wage & Hour Law. In that .

connection the Fifth Circuit set’ up and invented!’ wholly |

-arbitrary standard not supplied by the Act. Implicit in ©

-- that decision is the notion.that to be commerce the. product:

| manufactured must be for’ “trade and traffic”, and that .

* alone. The definition in the Wage & Hour Law is much |

'\> broader. The narrow conception of commerce as beihg

ee confined to trade and traffic has, in‘other situations,.been

= rejected by this Court, e.g. Caminetti v. U.S., 242 U.S: 4703

ne 87. S. Ct. 192 (women for immoral purposes) ; ; Champion: :

v: Ames, 188 U.S. 321.28 S. Ct. 321 (lottery tickets);

Reid v. Colorado, 187 US. 137; 23 S. Ct. 92 (diseased —

~ stock) ; United States v. Hill, 248 U.S. 420; 39 S. Ct. 143

. (intoxicating liquors) ; Brooks v is S., 267° U.S. 482; 45 :

S.Ct. $45 (8b

124;. 56.8.CE

. nape per ‘There ia nothing :