# Petition for Writ of Certiorari — Kennedy v. Silas Mason Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0028%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1948 - **Citation:** 334 U.S. 249 ## Text Dati AS, oS) Comes is Sgt Benue ans Boma: Cp ” PETITION FOR WRIT OF PF CERTIORARI. : Sommary Statement ot The Matters Involved — aca ita Gs Yor AN ok Toa Witt . - wewonaXDUN BRIEP IN SUPPORT OF PE- \ \ eo —e \ : IE VA “3 oo e \ ea ’ hee i o\ - F ° = 6 7 = ; ; Saat : A. 5 ; 7 ~ \ a o? Pi 2 ~~ Sin erne 4 ¢ op . ee = a - . : ‘ 3 : _ . : ee Ase : ; 2h. "2 4 be 24 ; . i ne : ? 2 ys ae ° . 6 ae Wer. = b Se . 3 3 ‘@% : ‘ . x 3. ‘ss : é Z 3 . ; Ae fe oe va Ck oh . Peary . Foes yg ee : Je ¢ . ' } . S ' 4 -. , re ° y Bri: . _ 6 z ae AS : * Ae Rx et Shae x ; Faas ae mani % f U ts J - \ oom ‘ ~ - ° , % : | "HARRIS KENNEDY, ft gS ca 4 = neti ee — a "sILAs MASON ‘COMPANY, Pe . pany ae peeves | 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. + Bs ~~ ~— . =" J -He - = are ZENE, an : > 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 eee 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 + without written crn, ge Hu a again : oo. o , o>, . . : gs . m =": » “a 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 , ; ' I. - ; - mechanics, within the mieaning of the Act of July 2, 1940 _ and further relief in. the premises’ as to thts. Honorable -. | Court may seem mest and just} and for such other reliet eee ee ¢ ‘ ¢ ; LEONARD LLOYD LOCKARD Attorney for Petitioners. | Ae 904 Ardis Bldg. : eS . Shreveport, La. ~ * a . oe ” 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 : 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; | ‘ e : 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 i e n \ i ¢ a ke ~ . 4 Ps . . . A " | : Zi ” my . ee + 2 AS ee x “A : ‘ 18. 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. : a * "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 * « © Sim v. State, 254 N.Y.S. ‘150, 151; 18 Mise. 159. fet | = i, ers mee ss 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 , y, . . & : 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 : --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0028%3A02. Public record. Not legal advice.