Brief for Petitioner — Kennedy v. Silas Mason Co.

Supreme Court brief1948

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shy “OCTOBER TERM, 1 1947 * 15

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Petition

. vermis.

.:SILAR MASON COMPANY,

5 on Writ of Corticrari to the United” States Cem

o it ume tor Gn Fitch den wits

"© ORIGINAL BRIEF OF PETITIONERS. _

. wt V. 7

5 3

are |

*: LEONARD ) LLOYD LOCKARD 5

„Aten for —

—— 2

cg. SHREVEPORT. LOUISIANA =

75 8 8

. s 9

3 25

— the Court Blow. 5

AJuriscketion of this Court — — 3

8 ific 1 of “ei OS

Summary of Argument

- Respondent an Independent 1

Not a Mere Agent of the Government

_ Respondent Did Mot Disclose Ite Principal 8

N Seien of Rrror No. 2 3

Jud 2, 100 —— 3

| Spbeification of Erer No. 3 F

; - Petitioners Produced for Commerce

War Not Negation of Commeres

Commerce Need N. Be Commercial—_

Made’ 8 6

Congress Intended Coverage and 5

Policy ‘Requires ree —

5 ministrative Not Significant 8

Speeittestlon of Error No. 4 5 at

1s .

See

Appendix “A 2 : = : *

n . wks 4

That Procurement of Munitions Was Ad.

* 4 2 X

INDEX or AUTHORITIES. 5

Page No.

Alabama v. King & bees 314 US. 1; 97 L. :

d. 8. dnn

J4/44/ſJ%%/ ĩͤ ..

Am. Jur. 27, See JI, p. 402 Ff

Am. Jur. 27, Sec. 16, p. 497. ffn.

Ashley Co. v. Bradford, 109 La. 642; 28 So. 684 86

Atlas Fence Co., 61 N. LR. B. 984.586 — e

Bell v. Porter, 159 F. (2d) 117 1 2.2328 i

FBreakwater v. Us, 0b u 10

"Brooke v. U. S., 267 U.S. 482; 45 S. Ct: 345; 87 5

I 1407; 69 L. Ed. 69. a ae =

Brown Shipbuilding Co., 57 N. LR. B. 826, 328 3°: :

__ Brown v. Volkening, 64 N.Y. 76.80 : 36

| Bickstaft v: McKinley, 808 U.S. 358; 84 1.

2.14. 15

5 geen b. S., 242 US. 470; 37 S. Ct. 1922

1. L. Ed. 443 LRA. 1917F, 502; Ann. 2

Cas. 1917B, 1168 — o

| Carbide & Carbon Chemical Corp'n, 73 NLR. “fo? Kee

B. 184-5 ee.

. Casement & Co. v. _ Brown, 148 Os. 617; 87 L. 5

d. 582 15

Champion v. 18 U 821; 23.8. Ct 821; r

e. g toe = isi

-- CLT: 3 vhm Garage, 86 Pac. 2d) N

; 247 —

Clyde v. Broderick, 144 F. (2d) $48. 23

Curry v. U. S., 314 US. 14; 86 L. Ed — 2, 10, 8

Dollar Savings Bank v. US, 86 U.S. 27 — 7 82

Ellis v. U.S., 206 U.S. 246 51 L. Ed. 104 | 19

Edwards v. E 8 31 Us. 160; 62 8. =

5 164; L. Ed. 119 22

te 0 Oben No. 9801.

. vee

Fleming v. Atlantie Co., 40°F. Supp: 65⁴ 3 5

Fleming v. Gregory, 36 F. Supp. 776. — 9

70 nee v. Hawkeye Pearl Button” Co., 113 F.

: (2d) 52 5

Ford v. Williams, 21 Howard 287; 161 E

Gibbons v. Ogden, 9 Wheat. 1; 6.L. Ed. 23. 5

v. U.S., 297 US. 124; 56 S. Ct. 895; eg

Ed. 522 wast

Gordon v. U.S., $1 Ct: G. 254

Harris v. Paul, 174 N. E. 615

"-Helena-Glendale Ferry Co. v. Walling 182 F.

24) 616

4 “Hoke v. v. 227 U.S. 808; 88 S. Ct, 281; 57

L. Ed. 523; 43 L. R. A. NB 906; Ann. Cas.

1918E, 905

House Resolutions Nos. 6617, 6689, 6790, 6792,

6795, 6796, 6814, 6823, 6826, 6835, 7064, 5

7781 of 77th Congress

House Resolution No. 992 of 78th Conress._ oa

Jackson v. Northwest Air Lines, 75 F. Supp. * 1 5

‘Littleton v. Roberts, 187 S. E. 349

ee, v. Trans. Co., 39 F. Supp. a

Moehl v. E. I. du Pont de Nemours Co.

12 Labor Cases, Par. 63, 545 eure

Nash v. Towne, 5 Wall. 689; 18 L. Ed. 527 —

National cm A Deposit. Co, Co. v. Stead, 232 U. 8. N

583 58 L.

NLRB. v. Carroll, 150 f. (2a) 457

N. LR. B. v. Nee 600; 88 Shue

L. Ed. 1014

* ‘Atty. Gen’l. (012) 688

: 6

Appendn

an 31 *

Otc Sibu Conn lun „

19261034 — oe

Overnight Motor Trans. Co. v. Missel,

19 US. ee 8 —— . 8

en Dairi Milk Control Comm.

1; O61. Ed 48. - 21

eae ee ae. Sea re. Ss

5 e Amer. ‘Law Inst. =

Neid v. Colorado, 187 U.S. 187; 28 8. Ct. 525

417 1. Ed. 108 f

Reynolds Corp'n, 74 N LR. B. No. 248

Roland v. United Air Lines, 75 F. ‘Supp. 25.

5 * n v. Mecnib 3

: 3 8. Ct. 1473. a

Sdnate Bills No ion 2878, 2884,, 0

77th Con :

Senate Bills Nos| 190, 237, 78th on er

a i e 258 U.S. 495; 66 .

Swift & Co. v. U,. 196 U.S. 278. .

- Swisher v. U. S., 57 Ct. Cl. 123 a

5 Storey on “Agency”, Sec. 267. L

Thompson v. Daugherty, 40 F. Supp. 279.

Timberlake v. Da 4 Zimmerman

49 F. Supp. 2 EECA

- - Unithum v. Day Rime; ioe eet

235 Ta, 298; 10 N. W. 24 28 —— 24,88

United States C

42 N. L. R.B. 191, 1 — rare 23

US. v. Darby Lumber Co., 312 U.S. 100 10

US. v. Driscoll, 96 U.S. 421; 24 L. Ed. 847 11, 12 28

— 95

2 .

2 8 38 NS A SBR

us 3 . —

——— — — f 23 °

‘

ö US: v. Green, 4 Mason 427

325, 826) .

US. v. Hoar, 2 Mason 311.

US. v. Hill, 248 U.S. 420% 39 8. Ct. 148; 63

I. Ed. 887

U.S. v. Hughes, 26 Fed. Cases 297

US. v. Coun Allegheny 5

322 U.S. 1 88%. Ed. 1209. — ou

US. v. Southeastern Underwriters’ Ass’n ma

322 U.S. 583; 88 L. Ed. 1440 8, 21

U.S. v. Sim m, 262 US 466; 40 S.-Ct. 364; Bs

„ 10 KAL. R. 510 . 22

Walling v. Haile * Mines, 186 F. (2d) 12 28

Ww Jacksonville Paper Co. “3

ee! 564; 87 L. gland So Vd

Walling V. Patton-Tulley, 134 F. (2d) 945.— 224, 32

Weber v. Freed, 289 U.S. 324; 36 S. Ct. 131: 0

L. Ed. 308; Ann. Cas. 1916C, — 22

3 chouse Elec. & · Mfg. Co. ae

1 LKB. 404, 412 2³

> — Srarurks ‘ crren: Le

Act of ns 1940 (Pub. No. 703, 76th Con- 8

Stat. 712, U. S. C. A. 5, 189 (a) 92 if

Lend-Lease, 20 U.S. C. A., p. 411-423 40

Judicial Code, 240 (a), 28 U. C. A. See. $47. te a

National Labor Relations Act (49.Stat. L. 499), 2

ö Chap. 372, 29 U. S. C. A., Sec. 151, et seg 2 23

Fair Labor Standards Act (US.C.A; 29, Sec.

: 90%, & eeg) 8, 17, 6, %

Eight-Hour Law, ete., (40 USCA. 221. „

5. OCTOBER TERM, 1947

e 890

on Writ of Certurafi to the United States Cireult

Congt of Are. for the Fifth Cireuit

ö 3 BRIEF or PETITIONERS.

| ‘ln: soe ela adh. a kG aataiaaes

granted by this Honorable Court to review the final judg-

ment in a elvil case of the United States Cirouit Court of .

e for the Fifth Cireuit. N

"OPINION OF THE | corr BELOW

The original judg judgment of the Fifth Cireuit Court

ae An was entered . 12th, 1947 . and

. rehearing was 0 without opinion, January un

1048 (R. 260). _ The opinion is reported in 164 f. a

1016. : ‘

— OF THIS COURT. :

Jurisdiction was invoked under Séction 240(s) 4

the Judicial Code, as amended (28 U. S. C. A. Section 347).

. Jurisdiction was urged: (1) Because of the paramount

public’ importance of the issues raised, requiring inter-

pretation of provisions of the Fair Labor Standards Act

involved in a ‘multitude of cases now pending in the lower |

federal eourts; (2) because of the conflict between the

~ decision of the Seventh Circuit Court of Appeals, in BELL

„ ve. PORTER, 159 F. (ad) 117, and the decision below;

__KING & , $14 US. 1; BUCKSTAFF CO. »,

_'. McKINLEY, sds U.S. 358; CURRY v. UNIFED |

Sars, 814 U.S. 14; PENN ‘DAIRIES . MILK CON- -

. PROL.COMM., $18 U.S. 261. |

ee Seamuig tho etav bs 00 plainly itt: to Seite il

he State apa the Ray of te Court doversies Gis |

a 0 =< | :

SUMMARY STATEMENT OF THE CASE. :

inn "Petitioners (not firemen) sued for overtime, penal”

7 ties, and 3 fees, ee ha

Pai ‘ 5 x

* ——— nang . . 8

22 2 3 2

6. N 2

Fair Labor Standards Act of June 25, 1988 (c-676, 62 Stat.

10560, 29 U:S.C.A. 201 et cn), by the Silas Mason Com-

pany, a cost plus a fixed fee contractor with the United 4

States Goyernthent, The Silas Mason Company firstly —

constructed an ordnance plant for the. Government, after

which it operated this facility for the Government under

tu conventional wartime cost plus a fixed fee contract, °

and it was during the operation of this facility, in making

_ munitions for war, that petitioners worked. ; :

A motion for summary judgment was filed by the

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

belonged to the Government, the title tc the raw materials

‘processed into munitions was! at al times in the Govern-

ment, and that the Silas Mason Company shipped ont

-- these, munitions upon orders ofthe Government, for the

which it was d that thie was the stendardleed wai- 2

time cost plus a fixed fee contract. _ At this plant, peti-

tioners engaged in the manufacture, fabrication, and load-

ing of shells, munitions, bombe, and other materials and

58 . .

na during the conduct of the war (R-2, 21). Petitioners’

i J aman aie mine dhe,

21). The plant and equipment used in the production

_ activities, as well as goods worked on, were the property

of the United States (R-21); and the contract, pursuant

to which the Silas Mason Company constructed and operat-

ed the plant, refers to that Company as a contractor and

provides that the contractor is the manufacturer of, or

Sean cach 8 eng ee

W .

equipment to be used or manufactured, in the performance

of the contract (R-48). The contract, provides that peti-

tioners and other employees “shall be subjeet to the con- |

trol, and constitute employees of, contractor” (R-45, 118).

The contractor was to receive specified fees from the

“contract, in addition to reimbursement for costs (R-21), |

but the contract provided for renegotiation of these fees

“to eliminate therefrom any amount jas a result of

pag eye ponte pete (R-128

' ah The contract contemplated: by: the Silas”

ee ones as eomply-

ing, in appropriate situations, w.th the Eight-Hour Law

(R-88, 39, 40, 41, 43 48) and with the Walsh-Healey Act.

Oe, 51, 116). Compliance with: the Social Security Act

cate (R54): ‘The Silas Mason Company was required

to adhere 26 local Workmen’s Compensation Laws and to

3 “procure all necessary permits and licenses, obey and abide

by all applicable laws, regulations and ordinances, and

1 other rules of the United States of America, of the state,

territory or subdivision thereof wherein the work is dans

. or of any other duly constituted public authority” (R-75).

“The Silas Mason Company bought the raw materials in

the open market, but under the contract (R-78) it was.

stipulated that title vested in the Government from the

— of — . .

mary emt ——

e N 2

2 1 : . 4 5 -

8 Ret a ie 8

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. % ~ 2 * 5 —

7 2 * ae ; s

8 6.

5 . 5

° Pe

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g 2% 5

od ‘nt thé nee fer: ee benen tha

State of Louisiana did not constitute interstate commerce, -

/ within the meaning of the Fair Labor Standards Act, be-

‘ cause the goods were the property af the United States

K. nd tateretete. traneyertation

(R-282, 289). se

| me Fifth Cireuit Court of Appeals affirmed by :

an en bane court, Judge Hutcheson dissenting. Besides

agreeing with the district judge that, the pgtitioners were

not engaged in the production of goods for commerce, the

Fifth Cireuit Court of Appeals additionally hell that the

- Bilas Mason Company was not an independent contractor,

because the Government exercised a continuing supervie-

ion over the manufacture of the munitions (R-251).

Additionally, the Fifth Cireuit Court. of Appeals

held that this contract between the Silas Mason Company :

and the Government, being under the authority of Act of

Congress of July 2, 1940 (Public No. 708, 54 Stat. 712, 2

entitled “An Act to Expedite the Strengthening of Nation-

| al Defense”), petitioners were therefore actually emplayees

of the Wor Denne |

It was also held, by the Fifth Cireuit Court of

Appeals, that the United States would be exempt in the .

situation presented here, under sub-paragraph ＋ of

Section 3 of the Fair Labor Standards Act, which exempts

_ from operation of the Act “goods after their delivery. into

the actual physical possession of the ultimate consumer

thereof, other than the producer, manufacturer, er pro-

eessor thereof.

Petitioners e rele herein by certiorari.

"SPECIFICATIONS OF ERROR. i

v. econ blow i erroneous Jn the following

2 *

— 3 Poe Be 5 6

5 . 8 8 < 7 ° 5 8 7 1 : . ‘

3% J.

„ e tet ta e tale

A ugh United

3 ie Oe —

of the War Department, in that they were g in

; : their Iabore-on thése munitions, by the of the

Act of Congress of July 2, 1940 (Public No. 708, 84 Stat.

712, 6 U.S. C. A. 189(a) ); that vonsequentty they are nt

5 . 28 =

3 whe 5

* ; : a 8

‘In holding that the munitions of war, in the po

te ein of ein 20 af hn Pu Lae

aining dare eee

| with by, this Court in the case of ALABAMA ». KING &

___ BOOZER, 814 U, S. 1 and other cases, by the measure of :

which respondent was an independent contractor and

petitionera, perforce, his employees; that petitioners’

relation tö respondent had all of the usual incidents of an

emplòyer-employse relationship; and that the ‘mere fact

a that the War Department maintained close supervision of

dis ‘operation and could require, respondent to discharge ~

; ca i eer ——

its efficiency, were wholly insufficient to rob respondent

_ of its independent status. 3 | ee

We urge that the provisions-of the Act of July 2,

1940 (Public No. 708, 54 Stat. 712, 5 U.. C. A. 180 (0)

et Wei te eons saasnen’-

: 22; —

plus a fixed fee contracts, gave him me election to operate

‘these-plants either by ‘or through:

-- “the medium of qualified commercial agencies; that inthis

cave he availed et of the rvices of a qualified em-

wereial agency, expert in man

: 42 pepe ly Se to hers sin of ay, fer om 5 5

. — of sic — —— —

Act, had the Secretary of. War elected to operate the fac-

; ility himself (which he did not); but the Act being wholly —

* gilent as to the working conditions which were to obtain

in the event that the Secretary of War availed himself of .

db services of another, as. here; it is clear the pro-

/ “* viaing of the Fate Labor Standards Act's

to prevail.

„ ** * sd

222

111.

v. r- thatthe munitions produced here, bythe

cisely the definition of “commerce”. set. out in the Act; |

|.” that the inelusion of the word “transportation” iteelf in.

__. ‘toners’ peluson-.

escapably points this conclusien; that transportation, vel

non, has always been regarded by this Court as commerce;

and that many cases by this Court, beginning with GIB.

BONS v. OGDEN, 9 Wheat. 1, 6 L. Ed. 28, to and including

__ UNITED STATES v. SOUTHEASTERN UNDERWRIT- -

. ERS’. ASS'N., $22°US. 588, “have held that commerce -is :

not confined to the concept of trade and traffic; that vut-

~~ gide the immediate area of conflict, war is not the antithesis |

of commerce, but often a stimulant; and that Congress,

mm exeluding the Government from the Act, limited it to |

= government in the ordinary sense; that the Government

here is only collaterally affected, and that decisions of

this Court, interpreting the letter, the spirit, and the

purpose of the Fair Labor Standards Act, compel red.

ota ed Po

r | do, not apply here beesiuse of no clear

conditions aguinat —-— 1B ef )

the Act; that to take the theory of the court below on this

point ‘would permit, and invite, wholésale evasions of the

Act and ee at ;

Act large groupe of workers, 7 |

— we 5

DalklEs v. PA. MILK CONTROL co. $18 U.S. 261, a

86 L. Ed. 748. Jot : . 70 N

ies ‘sales tax on materials purcha

coe facilities for the. government. ‘Fhe government intervened .

andd cont mded that since it was the ‘recipient of the ma-

. ° terials sold to- the contractor, taking title at the. ‘facility |

site, as here, the sales in. reality were to the United States

N and not subject to local sales taxes. This. Court held that

the soundness. of this contention “turns on the terms of.

ae the contract and the rights, and. obligations « of the parties

. under it“. The Court held that the contractor was the

purchaser, not the goversiment, and said: a Se

1 2 — —— 5 ae 2 .

a ; : „ ö ad Be i

; n . a: as,

* . " 8 55 : 4 oe ce

5 8 . . 9 i a N 1 44

rie 5 5 1 N * t 5 Sal 2

. - 885 1 ‘. 4 7

̃ ; = ? : . re, 8 10 | ; |

5. „ 5 8

2 “SPECIFICATION OF ERROR NO. 1.

ox!

5 e Independent Contractor -

e e ee

8 — the Jedoon- blow was the

theory that the respondent was not an’ independent con-

| tractor but a mere. agent or instrumentality of the Goveri-

ment, and hence, that petitioners were employees of tho

war Department. The cost plus a fixed fee contract which 3

obtained in this case seems to be a standardized form used -

5 by the government for the securing of supplies during the :

nunte war. This Court has had occasion to consider tbe

precise relationship of a contractor to: the government,

under such a contract, several times heretofore. ALA.

BAMA v. KING & BOOZER, $14 US. 1, 87 L.Ed. 8;

CURRY v. U. S. 814. US. 14, 86 L. Ed. 9;. PENN

5 The KING. & BOOZER case inys

the contractor to byild

ed an Alabama

= 1 1 5

“The contract provided that the title to all materials

and supplies for which the contractors were en-

' titled to be reimbursed’ should vest in the govern-

ment, ‘upon delivery at the sitg of the work or at an

approved storage site. and upon inspection and ac-

: ceptance in writing by the contracting officer’.” 3

A ner pte tpl into this tontract

( b. ;

‘The Court further said:

377555500505 a ee

‘have reserved the right to restrict. or control the

action of the contractors in other respects, neither

the reservation nor the exercise of that power give

the co rs the status of agents of the Govern- -

nient ) enter into contracts or to pledge its credits. i

„ (US. v. DRISCOLL, 96 U.S. 421). The circum-

stance that the title to the lumber passed to the

ge poe t on delivery does not obligate it tothe

) eee ere, N :

: „ a lump-sum contract. e

DRAVO CONST. CO., 802 US. 10.

The case of UNITED STATES v. COUNTY OF

„ ALLEGHENY,..882 U.S. 174, 88. L, Ed. 1209, does not

derogate from the holding of this case. ‘It merely declares

that property af the United States, in the hands of a

government contractor, is immune from local taxatioh. N

_ It did not hold’ that the contractor himself is immune. a

Provisions of this contract are consistent only with

the independent status of fespondent. The contract de-

elares (R-45, 118) that the ‘employees “shall. be subject _ a

to oe control and constitute — of the contractor”.

| 12

. It provided for renegotiation of excessive profits that

micht accrue to respondent (R-128). Profits are associated }

with the thought of an entrepreneur. The requirement

“ of adherence to the Walsh-Healey Act (R-47, 50, 116) and

to the Eicht-Hour Law (R-38, 89, 41, 42 and 43), as well

as the stäte Workmen's Compensation Laws (R- 78) and

the Social Security Act: (R54), is applicable only to ‘the |

employees of a private: — : ee

The contract. provided for fines, in eértain e-

tingencies, against the respondent, e. g. for failure to abide

by the Eight-Hour Law (R-89) and the ‘Walsh-Healey

, Act. If respondent is the government’s agent, and not an

independent contraetor, we have the egregious. situation

of the government's imposing fines and penalties on itself.

Such a stipulation, providing for fines or penalties in a

similar situation, . was characterized by this Court in

. UNITED STATES v. DRISCOLL, (96 U.S. 421, 21 L. Ed.

38470, as “incongruous with the idea’ of his being an agent

and not a contractor”. Respondent was required to abide _

by all local laws enforceable in the state, territory or sub-

division wherein the work was being done. We are aware

tilist the federal government séeks to abide by local re-

strictions in the interest of harmony and comity; but to

impose it as a binding and legal obligation in all contingen- 4

‘cies, on its mere agent, goes beyond the e |

mere comity: V Pa es se *

The hiring of petitioners. by n was with-

out any hindrance on the part of the government, initially,

and the wages to be paid 1 were not e 0 5

the 3 the minima: exacted: 1 the Walsh-

Healey Act, — and that was a requirement grading

wages upward. The contract further provided that the

oe contractor “is the manufacturer of, or a regular dealer.

in, the materials, supplies, articles, or equipment, to be

manufactured or used in the performance of the contract” .

„ (RAS (a)). This is inconsistent with any’ notion that

respondent was a mere agent. a

But the court below, Schiele int :

‘- pendence, found that because of the general. supervision

which the government exercised over the work, and par-

: ticularly its right to require the discharge of any empldyee

(R. 76), respondent was a mere agent. This provision,

with reference, to the discharge of an employee, (R-76)

is in this verbiage: “The contracting officer may require

the contractor to discharge from work any emiployee the

contracting officer deems incompetent or whose retention

is deemed to be not in the publie*interest”. But this right

5 of discharge on the part of the government is indirect.

An apt comment on this, in 27 AM. MR. See. 1 AM, P. com

wba . :

See. 11: . +» Incidental powers N

employer over laborers, as the right to compel con-

tractors to discharge workmen who are t,

although tending to show the contractors’ su 5

eney, do not 8 — that the contractors

7 Tt to manifest that this requivenent was Eee

for security and. ef fieieney reasons. This was a war pro-

* ject and success had to be assured, as well as complete

protection against sabotage. . “Considered in the light of

we additional fact that respondent had unlimited right,

ae initially, to hire, and little restriction as to the wages,

indicates that this situation is no-different from that dealt

with by this Court in BUCK STATT v. McKINLEY, sos

US. 358, 84 L. Ed. 328, where this Court said:

“The control reserved 7. the 8 for

tection of a governmental public

interest is not incompatible wi e of the

_ status of a private enterprise. See FEDERAL |

_ COMPRESS & WAREHOUSE™ CO. v . McLEAN,

a. (291 — 47, 78 L. Ed. 622). That con

flog whol ry, is not to be differentiated —

| the tye of conte which the United States

_out transf him into its instrumentality. See

JAMES v. DRAVO CONTRACTING CO., 302 U.S: .

184, 82 L. Ed. 155, In effect, petitioner ,

the point by admitting its . under * Social . :

Security Act. 7

ä eee en

Firth Circuit below was this provision, quoted in the foot- i

note to that opinion, relative to supervisory power: e

„performance ‘of the construction work of the entire

2 be under the supervision of the contract-

— — by the e Gen-

THIS alien RELATED TO THE’ ‘CONSTRUC-

TION OF THIS PROJECT, NOT TO THE OPERATION

OF THE PROJECT DURING WHICH TIME THESE

PETITIONERS LABORED. |

FFC 2

oompliching the contract, and held it 9915 for — is

| apparent from 5 following:

“In carrying out. the work under this Title IV

ning operations) i eee See ee

3 and W 28

b 2 opera 7 osing 2 the Plant, 2

; aer ee ofall persons including. (but not 1 the

em yment of all work here- |

undder erer

stitute employees of the Contractor) . (R-45).

5 From the general provisions. of ‘the contract it ean.

be gleaned, it is conceded, that a representative of the Gov-

_ ernment was in attendance, but this circumstance does not

destroy the independence of the contractor as demonstrat-

ce intent :

ed in BUCKSTAFF v. McKINLEY (supra). Also see

N 4 4 CO. e 148 US. ee 87 L. Ed.

8 . xf

0 The third provision in 8 relied on by the

court below as. supporting its position for the mere agency

of the respondent, was this (R-16) : “The government re-

serves the right to pay to the persons concerned all sums

due from the contractor for labor, materials, and other

charges“. It is not claimed that this reservation was ever

- exercised. At no time did the Government pay these peti- :

. tioners—they were always paid by respondent, Inasmuch

as respondent did pay these petitioners, it is idle specu-

lation as to what would occur. had the government paid

them. But even if the government had exercised its rights

during the — in qosstion, that is only one — bear:

7 267. Also see note, 6 A.L.R. 649, for accumulation, of

10.

0 .

eb ee See

27 AM. JUR., cote nemme, e

. 5 b

— Not Disclose Tis Principal. _ ;

hae nnn

e that these patient denis eee e

ent, — it hired them, worked them, and paid them. It

. deducted their pro rata part of the Social Security tan,

and it provided them with Workmen’s Compensation. For

” aught that appears here, these petitioners did not know |

: the United States, or the War Department, to be here at

al. There is no showing that the petitioners knew that

"| this contract Wad existence, much less knéw the details of

it. In such a situation, — if, indeed, the Silas Mason

Company was a mere agency’ of the government — it

stands in the position of NOT HAVING DISCLOSED 1s

_PRINCIPAL,. AND WOULD BE LIABLE TO THESE

| PETITIONERS BECAUSE THE CONTRACT WAS ITS

| OWN. See FORD v. WILLIAMS, 21 Howard 287, 16 .

Ed. 36; NASH v. TOWNE, 5 Wall. 689, 18 L. Bd. 687; -.

‘See. $22, RESTATEMENT OF THE LAW OF AGENCY, |

AMER. LAW INSTITUTE; STOREY on “Agency”, Sec.

cases. Hence, we urge that if this Court should find that

“the munitions produced here were “commerce” and

“goods”, then respondent would be. liable to petitioners

under the Fair Labor Standards Act, notwithstanding the |

‘fact that it was a mere agency of the United States; be

cause, in ifs failure to disclose its principal, it made itedlf

| SS

i 17

| SPECIFICATION OF ERROR NO. 2.

: Potitionsrs Not Governed By-The Act of July 2, 1940,

| The court below, besides ‘the reasons hereinabove

— on that petitioners were not governed by u

Fair Labor Standards Act — additionally held that peti-

tionen were, in reality, employees of the War Depart- _

ment because the contract, on its face, indicated that it 5

was made en- M authority of the Act of Congress of July —

2. 1940. (Pe No, m = 6

USCA. 1% ̃ (R-B4). 0 ees

: This Act, in Section 1, authorised the Segretary of =

N of cost plus a fixed fee contractors. 3

1 further provided, in part:

“The Secretary of War is further authorised * * * ,

Sulmetion 4(b) further provided: é 3

1 7 “Notwithianding the provisions of any ser lw

eee

However, both the district judge (R-233) and the court 8

below found it controlling. The writer does not find, in |

"the numerous cases in the lower courts which have dealt

with this matter, any reference to this theory. —

By Section 1 of this Act the Secretary of War may,

in his discretion, operate these plants either: (1) Through.

the agency of qualified commercial manufacturers (as in”

bur ease here), or or (2) through government personnel. 3

: we urge that subsection 4(b’, above quoted, pro

. K eonitel to ei

* laborers on the project tolerable working conditions, only

in the event that the Secretary of War elected to operate

“this facility through Government personnel. There is no

, Provision in the Act a to wage rates and hours of em

eo 8

„

Bube of cojpitanetel eee e (an herd, who made

contracts with the Government to operate such a plant.

This omission can diy signify the intent of Congress for

the latter employees te have the dt of the Fair Labor Bands

Standards Act.

= Moree, btn 4) evn nly a “ae

chanics”, r

1000 (see 40 U.S. C. A. $81, $25, $85, 26). It is fair to

assume that the meaning of the expression in this Act of

July 2, 1940, has the same ineaning as has been ascribed

- to it in the previous Acts. ELLIS v. UNITED STATES,

206 U.S. 246, 51 L. Ed. 1049 (exeluding masters, mates, : He

engineers, firemen); 1912 Op. Atty. Gen. 588 (excluding

~ seamen); BREAEWATER v. UNITED STATES, 183 F.

"112 (excluding seamen); GORDON v. UNITED STATES, es

81 Ct. Cl. 254 (excluding watchmen) ; SWISHER v.

UNITED STATES, 57 Ct. Cl. 138 (exoluding firemen).

‘There is nothing in the affidavit supporting qum-

i mary judgment, or otherwise in this record, from which :

it can be determined that the petitioners here, who are

described as safety inspectors and foremen, fall into the

category of: “laborers and mechanics”. Hence, if this ease

should finally come to turn on this point, the matter would

F Sa Ne seed Mir tel of We tone :

| a de ; 2 7

„ 3 —

8 SPECIFICATION or ERROR e

f Petitioners Produced for Comineree.

The third reason assigned below N

should be denied, was that these munitions were

a“ ‘Commerce’ means wk commerce, transports 8

tion, transmission or communication among tne

several states or from, any state to any place out-

side thereof.” . f x

. : The court 8 that dommerce was absent be

cause: (1) the munitions were made for.war, which is the:

_ negation or antithesis of commerce; (2) that it is not com-

mere, unless commercial; (3), that the government, in

procuring these munitions, was performing an adminis- .

"trative act for the sovereign, which made them exempt.

We will discuss these seriatim. Me

War Not Negation of Commerce. ; fee

Threaded throughout the opinion below, ied boldly. ;

stated in the concurring opinion, is the concept’ that war is

à negation of commerce; is wholly antipodal, and for that

reason commerce could not exist in this situation. This

“Jdea haa been expressed. by other courts taking the same

view: That idea is true only in part; in the area of hos

tilities, commerce does end, but outside of the immediate

area of war, it is a stimulant.of commerce. Such has been

the history of this country. World War I generated gen-

cas eral _prosperi ity’ and produced many millionaires; Werld

War II accelerated commerce i in the United States to un

—

e ae s 4 0 J qu f

and a movement and interchange of commodities, beyond

(~~: anything in our history, or the history of any other coun- 5

~ try,

and abmöst beyond man's imagination. Comnierce

ent Was, tf Government in this war; by.the device of _

to war. Baged upon its experience in the first 5

profits. It was provided for in this contract (R. 128).

Here in Louisiana, at this plant site, thousands of miles

from · the area of conflict, war brought » immense spurt

in industrial output. It wage not tal mmerce — it

quickened it! 25 ae 25 a See

5 . Commeree Need Not Be 2 b Mere

* This obecssion with the notiodi thet war was ane

| gation of commerce, even at points distant from the con- :

flict, was based upon the false notion that commerce is an

ae _exchange of commodities, in a commercial gense, between .

the the peoples af v various states.

. of coinmeres 9s being merely

trade or traffic, has never obtained in this country.

“Commerce”, in ‘the Constitution, is without a definition,

8 but this Court has, from earliest times, construed it to in- ot

clude more than tradé or traffic, beginning with GIBBONS

v. OGDEN, (supra) to and including UNITED STATES |

v. SOU THEASTERN UNDERWRI TERS’ ASS’N, 322

«US. 588, 88 L. Ed. 1440. In the latter case, the Court

observed (at p. 549): “** not only, then may transactions

Papers i. ai Ps though non-commercial *

or. é scaling down of anticipated : ;

dees this Court held, in NATIONAL LABOR -

‘RELATIONS BOARD v. FAINBLATT, 806 U.S. 600, 83

IL. Ba. 1014, at p. 118: 5

meres within constitutional control of the nation!

. * government and subject to the regulatory power art :

. g., GOOCH v. U.S., 297 U.S. 124, 56 S. Ct. 295, 80 L. Ed.

Ses (kidnapped persons); BROOKE v. U.S., 267 US. 482,

18 S. Ct. $45, 69 L. Ed. 699, 87 A.L.R. 1407 (stolen auto-

+ mobiles); WEBER „ FREED, 289 U.S. 884, 36 S. Ct.

131, 40 L. Ed. 308, Ann, Cas. 1916C, $17 (prize fight

= filma); HOKE v. U.S., 227 U.S. 808, 38 S. Ct. 281, 87 L.

Ed. 588, 48 L. R. A., V. S., 906 Ann. Cas. 1913E, 905, and

CAMINETTI v. US., 242 U.S. 470, 87 S. Ct. 198, 61 L.

Ed. 448, Lx. A. 1917F, 508, Ann. Cas. 1917B, 1168. (wor

men jor immoral purposes); CHAMPION v. AMES (lot-

gery case) 188 U.S. $21, 28 S. Ct. $21, 47 L., Ed. 492 (lot-

tery tickets); REID v. COLORADO, 187 US. 187, 23 S.

Ot. 98; 47 L. Ed. 108 (diseased stock); UNITED STATES

v. SIMPSON, 252 U. S. 465, 40 S. Ct. 364, 64 L. Ed. 665,

10 A. L. R. 510 and UNITED STATES v. HILL, 248 US.

| p80, 30 S. Ot. 148, 68 L. Ed. $37 (intoxicating liquors for

"personal use). Also see EDWARDS v. CALIFORNIA, Sth

.. 160, 62 S. Ct. 164, 36 L. Ed. iI.

ing the naked word “commerte” as was done in the Con-

ais although that might have sufficed in view of thi

Court’s interpretation of the word. It was careful to de-

fine it as including “transportation”. ‘This specification. .

is consistent with the notion that the courts intended to ex-

„FFF —

n ne that the de d us fn

‘the National Labor Relations Act is precisely the same as”

in the Fair Lahor Standards Act (49 Stat. L —

$72, 29 U. SC. A., Sec. 151, et geg.) |

The National, Labor Relations Board, in interpret- .

ing the National Labor Relations. Act, has, with remark-

able consistency, held to the view, that interstate commerce

ineludes interstate transportation of property ot the. Se

United States, to be used for military purposes and for

other purposes. WESTINGHOUSE ELEC. & Mrd. Co,

$8 N. L. R. B. 404, 412; UNITED STATES.CARTRIDGE g RH

0. 42 N.L.R.B. 191, 198; BROWN-SHIPBUILDING .

co, 57 N. L. R. B. $26, 828; ATLAS FENCE CO., 61 NLL.

R-B.-984, 985; ODENBACH SHIPBUILDING CORP., 64 +

N.L.R. B. 1026, 1084; CARBIDE & CARBON CREA.

CAL CORP., 78 N. L. x. B. 184, 185; REYNOLDS CORP.,.

74 N.L.RIB. No. 218. Some of the | federal courts ~ ~

have also taken the view that the tion of goods |

for the-eonvenience of the government was commerce. . }

BELT v. PORTER, 159 F. 2d. 117; CLYDE v. BRODER-

ICR, 144 F. ad 348; WALLING v. HAILE GOLD MINES,

136 F. 24.102; TIMBERLAKE v. DAY & ZIMMERMAN,

49 F. foo: 28; SCLAND v. UNITED AIR LINES, 18

„. Sir 885 ‘JACKSON ». NORTHWEST AIR LVs

=F. od 945. ‘See also UMTHUM v. DAT & ZIMMER-

ear MAN. INC., 85 Ia, 298, 3 10 N. W. 2d 26.

a 20, bees words are teed: “ ‘employee’ includes any in-

ee 8 dividual employed by amemployer”. The word “any” is :

a 1 US. 664, 87 L. Ed. 460, Where it was held that the Act’

5 3 heavy. burden of persuasion. and must a

Bor rox co, 118 F. 2d 62. Here, neither t the letter r nor

thes yy epirit : admite the attempted exemption.

‘a

75 F. Sepp. 82; LI IVG v. PATTON-TULLY co.

In the definition. of “employ .

A all-inclusive, and it certain ‘forecast the holding ofthis

Court in WALLING u. JA KSONVILLE PAPER CO.,

7 was intended to extend to the utmost reach of interstate 85

i Ne ee

— is” remed den aiming exemy:..

show themsclves excluded by both the letter and the spirit- |

at the Act. HELENA GLENDALE FERRY CO. v. WAL-~

LIN d. 158 F. 2d'616;. FLEMING v. HAWKEYE PEARL

9 “Unless the Fair Labor. Standards ‘Act: be “emaseu .

- lated to nothing, it must be held to apply to, contractors

ne during’ the last war, and now, produce goods for the

bDutted States in the conventienal way. This much was >

oe - eanceded by the court below-in the ube of this language 4

It the defendant is engaged on this contract in the bus

‘hess of ‘manufacturing munitions -of- war, either as 3

A. ee n proposition, or under a contract by which it agree! ~

‘to produce and sell to the government either at a fixed

85 V

° Spree

| 285.

are of the opinion that it would come within the’ Fair. :

Labor ‘Standards Aet“. .

What ‘difference can Mee be, emily; in the

— conditions of these petitioners here, making mun-

itions for the United States government under u cost plus

e “

ee fixed fee contract, as compared to those workers supply-

ing goods for the United States. in time of war or peace,

such as the’ producers. of trucks; oils, steel, and any other

kinds of commodities?

Vnto ward bonsequences will ent if this *

tion bee the ordinary contractors and “cost plus a

fixed fee contractors is adjudged, and. between employees ies

of the two kinds of contractors. What: it means is, that

workers for th two types of contractors, although they :

may be wor ng toward the same end, under the some con- :

_ ditions, and e the aame thing, for the army or the

g government, generally would be, quoad their employers, :

under different requirements as to the-minima of wages

and maxima of hours. There is no valid reason for tis ies

distinction. J udge Hutcheson, in his dissent . aptly .

a states what we seek hene to protray:

A ask upon 1 What permissible theory can it ie claim- 3

ed that appellants are not covered here, when it is

ceonceded that had they been working for a private

plant which made munitions for sale arid delivery

to the United States for war, they, would haveybeen.

The munitions in both cases would be for purpose

of war and not for ordinary trade, but in both cases

they would have been produced for transportation

from a . to N place outside thereof.”

: os

— 4 imam Sr pt

—

plus a fixed fee contracts rested in the fact of advancing

~ costs, the policy of cost plus afixed fee contracts was in .

auguratsd. THE GOVERNMENT‘ OF THE UNITED

. stint? Why did not the government manifest, me

* CONCEDEDLY, HAD THE BENEFIT OF THE ACTS.

STATES CERTAINLY DID NOT RESORT TO THIS

DEVICE TO SAVE MONEY! Judge Sibley characteriz-

._ ed the cost plus a fixed fee method as “the ‘business folly

of making cost plus a fixed fee contracts”. 9 i

"Here was the governmént, quite willing to pay out

extra money in order to get supplies. Could it be that the

. governinent was partisan in its generosity and was ready

niggardly attitude toward employees of its other class of

peaermesting the opinion below, and the opinions dk.

other lower courts arriving at a similar result, is a notion

that these acht“ hape a touch of the immoral and the m

patriotic — that they are an attempted gouge of the gov-

‘ernment. BUT ALL THAT ‘PETITIONERS: SEEK

| HERE IS AN EQUALITY OF HOURS*AND. WAGES —

* WITH OTHER EMPLOYEES OF CONTRACTORS FOR —

HE GOVERNMENT, DURING WARTIME, WHO, -

py re

;

tractors to make flat bids on government projects. To in-

dure the contractor against this extra hazard of advancing

3 6 hides, a 2

thousand other commodities. These commodities mee

used for WAR, and were as necessary a6 were, anten

“Surely the Court can look through mere form,

_ method, labels, or apparatus, to the reality of this situ -

“tion. Nomenclature is not controlling. That was demon-

strated in this Court's recent holding in RUTHERFORD 9

\ FOOD CORPORATION v. McCOMB, 320 U.S. 9

67 S. Ct. 1478, decided ‘June 10, 1047. Said ‘the Court

there: i pe dead \

he Fair Labor Standards Act was passed by

Congress to lessen, so far as seemed then practicable,

the distribution in “commerce of goods produced

under sub-normal labor conditions. An effort to

eliminate low wages and long hours was the method

chosen to free commerce: from the interference aris-

ing from production of goods under conditions that

Ra were detrimental to the health and well-being of

- worker. * Where the work done, in its essence,

follows the usual path of an employee, putting on

an ‘i t contractor’ label does not take the.

=e werhak the protection of the Act." 5

\ _(Emphasis ours) 8

| Congreas Intended Coverage and Policy Requires It

: "When this Act was passed in June, 1938, war, ona

major scale, was in the offing. , If not foreseen, at least

, "the possibility of war was known to Congress, in view of |

our repeated experience with it. But, if war was not an-

ticipated or taken into account, still Congress knew that

the government had, from time immemorial, been making

contracts with, and purchases from, private contractors, ©

0 —

—

2 “edu of them cost plus a fired * (see UNITED STATES

v. “DRISCOLL, .supra). But the Act makes no exemption —

for employees of contractors for the government, of any 5

kind whatsoever, whether conventional or cost plus a fixed

fee. How then can the Court, as was done below, find a

distinction between the two classes of contractors, where

Es + the Act makes none and history points to none? |

. „ When the wür did come, with the expanded activi- .

—— that did not cause Congress to

amend this Act, although individual Congressmen thought

it should be‘ amended. We are informed, by the amicus —

curiae brief of the Department of Labor filed in the court

below, that eighteen bills or resolutions were introduced

ae in Congress, locking to the suspension of the Act during |

the war (Senate Bills Nos. 2232, 2873 and 2884, and House

Resolutions Nos. 6617, 6689, 6790, 6792, 6795, 6796, 6814,

6823, 6826, 6835, 7054 and 7731, of the 77th Congress, 24 3

oa Session; dar Bill Nin 180 and in and Hone Bo

lution No. 992 of the 78th Congress, 1st Session) none of

which were passed. Obviously; such amendments were un-

necessary, unless applied to the large group of people who

were warking for cost plus a fixed fee contractors.

ey have this view — the coverage of the Act — because in the

Portal to Portal Act of 1947 (Public Law 49, 80th Congress,

Chap. 52) there is set forth, in Section 1, the Congressional

: finding that the ‘cost to the government, under the Fair .

labor Standards Act, required the Congress, to act; aud

= the Judiciary Committee, im its 98 on this bill, referred :

ree ‘ es:

o r \\

| 5 ce : 29

to the fact that expenditures by the government for sup-

plies, through the medium of cost plus a fixed fees con-

" tractors, amounted during the war to 840, 000, 000, 000.

Accordingly, Congress, both during and after the war, +

885 adhered to the view that the Act applied to cost plus a fixed

fiee contractors. Moreover, the Executive Department had

‘the same view. Executive Order No: 9801, appearing in

the appendix, established the 48-hour. minimum work-

week, but it was careful to provide that it should not be

“construed as suspending or modifying any provision of

the Fair Labor Standards Act”. We . 9 2 7

and 5 of this Order: |

5 2) An departments = agencies of the Federal

: Government shall require their contractors to

comply with the minimum workweek prescrib-

ed in this Order and with policies, directives,

and regulations prescribed hereunder, and

- . shall promptly take such action as may -

re for that purpose. 7 5 f

8 667 3) Nothing in this Order shall 1 L *

| uber dine or in conflict with any Federal,

| State or law limiting hours of work or

with provisions of any ividual or col-

lective bargaining with respect to. :

rates of pay for hours worked in excess of the

8 agreed or customary workweek, nor shall this

? Order. be construed as suspending or modi-

_ fying any provision of the Fair Labor Stand-

- ards Act (Act of June 25, 1938; 52 Stat. 1060;

29 U.S.C. 201, et seq.) or any other Federal,

State or iocal law re ng to the payment of

wages or-overtime.”” ae 8

0 : 7 ‘a 8 oP ae

208 (d) of the Act, it is provided;

States or any State or political. subdivision of a

State, or any labor organization (other than when

N 8 1 . ; k

CCC eemiuebauamaitate ose

8 44 Sih Semin ste

„

impliedly referred to. : :

ag 6 . a

‘contract is a disclaimer by. the government that it is the

employer. There is nothing in the statute itself else-

"where, to indicate that Congress intended that the words.

of the statute ‘excluding the Government should be taken

in other than the ordinary meaning. We submit that,

according to ordinary understanding, the Government does

not stand here us the employer, rather than the respondent. ee

, An act of the Government is none the less adminis-

trative if in time of peace, instead of war. ‘If the Act is

deemed inapplicable because the: procurement ‘of these

munitions was an administrative act, it would exclude

5 great segments of the working population because all work -·

ers under. government contracts would be excluded. In

other, but analogous, situations, exclusion on this argu-

ment has been denied. Take the case of the United States

mails — as relates to the National Labor Relations Act.

employees for contract mail carriers have been held as in

commerce. N.L.R.B. v. CARROLL, 120 F. ad 457. As

„ Sn AS apart om

: mail carriers have adjudged. under the Act.

1 5 THOMPSON. v. DAUGHERTY, 40 F. Supp. 279; FLEM-

ING v. GREGORY, * F. — 776; MAGANN v.

‘TRANSPORTA TION 00. 49 F. pine 742. In the case

of. WALLING v. PATTON-TULLEY | TRANSPORTA-

ION CO., 184 F. ad 945, employees of an independent

contractor on dyke and revetment work on the Missouri

and Mississippi Rivers were ‘subject to the Fair Labor

Standards Act. Insofar as levees and their repairs are

_ concerned, that is certainly administrative activity. noe

fact, to a limited extent the federal government owns

' these rivers, but not, of course, as fully as it owned the

munitions in this case. But counsel, in the court below,

urged that general legislation does not- inelude the sover-

eign, unless by express words or compelling implication, 3

eiting UNITED STATES v. HOAR, 2:Mason $11, UNIT-

v. HUGHES, 26 Fed. Cases 297; and. DOLLAR SAVINGS —

„ Bak v. UNITED STATES, 86 U.S. 222. Ovef Ned,

however, is the fact that the existence of the government

o the’ United States was manifestly considered by the

lawmakers and fully provided for to the extent intended by

the sole mention of the government in sub-section (d) 15 8

Section e eee : ; .

Moreover, the rule of the Hoax, N voHks, “a

DOLLAR SAVINGS BANK cases, supra, applies only in 1 5

the situation where the Government is in litigation. In all

these cases, the Government was a party. Here the Govern-

ment is not a party, and is affected only because, by con-

tract, the results of this law-suit may touch the Govern- 4

ment. Rut the fact that the Government may be affected

5 — by this — been held not to — the cost, ph

_—_—

—

a fixed fee ‘contractor 15 ene dee of his contract. |

ALABAMA v. KING E BOOZER, CURRY v. UNITED .

_ STATES, supra. In those cases, the Court was solieitous

to preserve local rules, regulations and laws. Surely Con-

~gress did not intend for a national policy, gmbodied in the 5

Fair Labor Stauthrds Act, to be frustrated in a situation

where care is taken to permit the operatign of local policies.

This preeise argument was presented and rejected in an

| — situation in the Supreme Court of Iowa, in the

case of UMTHUM v. DAY & ZIMMERMAN, me.

we excerpt trum that ease:

“The. statement of J sation Story in the HOAR ‘ae

is by no means a hard and fast rule by which the

. sovereign e from pusarel terns of » te.

‘tute; purpose, subject. matter, context,

tive history and executive interpretation are aids

to construction which may indicate. an intent to

bring the sovereign within the scope of. the law.

UNITED STATES v. COOPER CORPORATION, |

418 U.S. 600, 61 S.Ct. 742, 85 L. Ed. 1071, 1074,

~ 1075, Roberts, J. ‘Cases in which the doctrine of

fe the HOAR case have been applied are of two classes:

(1) Those where the act, if the ‘sovereign were

not exeluded, would deprive it of a recognized or

established prerogative title or interest. A elassie

example of these cases is, UNITED STATES v.

_HOAR itself, holding the sovereign is exempt from 8

general statutes of limitations. (2) Those where

ge the act would work obvious absurdity if the public 3

or its officers were not held to be impliedly exclud-

ed, as, for example, the application of 7 speed sta-

tute to a policeman pursuing a criminal or to a fire

i —— 7 8 to a fire alarm. * 5

2 2 L. Ed. $14, $17,

5 a government is

resisting

UNITED STATES, ‘s08 ‘US. 879, 58 S. Ct. 275,

J. Pl

of these classes. The

to the case. It is not

on the contrary the

does not fall

4 ation.

20 t of Labor has amicus curiae _

brief urging a reversal. Plainti not an em-

payee of the goverament but of f. aa

tion.

5 c

it it ean be called such, of UNITED STATES v.

HOAR. Where a statute is for the public good or

to prevent injury and wrong, the sovereign is bound

by it although not particularly named therein.

NARDONE v. UNITED STATES, supra, 302 U.S.

275, 58 S.Ct. $75, 82 L. Ed. $14, $18; UNITED *

| STATES v. HERRON, 20 Wall. 281, 22 L. Ed.

276, 276. It would seem that the Act involved here

Was intended for Wer

Jory ee,

1 5

\ .

: ICATION OF EREOR NO. &

‘Munitions Not Cxempt as Goods in the Hands

; of the Ultimate Consumer.

5 Finally, it was held by the cbuirt below that the

~ munitions manufactured here were excluded under the

Act, by the provisions of sub-paragraph R

equipment), wares, products, commodities, mer-

J27½)000S00 hiatemente

character, or any part or ingredient thereof, but

does not include goods after their delivery inte me

actual physical possession of the ultimate consumer

r e manufacturer, or

processor thereof.”

ws ty atl ih ha lilies peaiians a aug an

petitioners labored, did not occur until after these goods -

lor at least the raw materials from which the munitions

were made) were delivered into the hands of the govern- -

ment of the United States, which was the ultimate con- :

sumer of the munitions; that the exemptive provision of

the above quoted paragraph thus came into operation.

; This view is ‘untenable — firstly, because the ex-

i emption does not become effective until after delivery into i

the actual physical possession of the ultimate consumer. 25

Here, the actual physical possession on the part of the Gov-

ernment did not come about, under any theory, until the

goods were processed to completion and were loaded on

railroad ears, and, e

a 2 red to the arme coe tre on the battle trent. At ay

Si j 5

| CNY. 70; 80; ASHLEY CO. „ BRAD- 55

<FoRD, 10 La. 642, 83 So. 66, HARRIS . PAUL, 174

y 5 VE. 616, C. l T. CORP'N~v.. BIETMORE GARAGE, %s

6 ba (2d) 247; LITTLETON v. ROBERTS, 187 C. B. 849.

oe : This Court had an analogous situation before it in or.

8 Wh a - NATIONAL SAFETY. DEPOSIT CO. v. STEAD, 232 U.

. S. 88, 58 L. Ed. 505. Confronting the court there vas

„

_ had possession, and the kind of possession, aa between the \ } .

dee, e e F 934

3 e mere possession of the .ultimste.consumer, then ue.

. 5 \ :

. 3% ee 1 8

e . 8 - be * 1 *

- é : . ‘ =. a.

* n , . f

8 ** 2

„ rer . 5

—

.. Physical possession. We have to assume Congress

“acted knowingly and deliberately in Class of

_, possession over another. Had the t said the

: A wel eclaitthsd id sntent Gementhsn ed pp “i

in has been into (1) constructive, and (2) actasl - .

* 8

ag?

~ constructive, possession of the ultimate consumer, or wn a

c e

7% teigad inom 25

ves the ultimate consumer himself, and him only, Tha

bere uns not the ultimate consumer, and sure- 1

w it eazinot claim an exemption designed for another.

An the actual physical possession of the ultimate a

v. 1 CO., #0. F. Supp. 664:

— ttn

+ that ve hs found, is that of Judge Russell in FLEMING ee

tase oss “Pistia ct iat wile atk nd euapay. 35

i. ment prior to any delivery and there can be no.

reasonable construction of the statute which would

relate the condition of goods after delivery to pro.

. duction. Goods gannot be produced after they are

consumer. 8 mt of this rm et the statute,

construction. This, ‘every effi-

bach of ix employees engaged in the

produetion- of ds, but not including goods after

- . their delivery into the actyal physical possession rt

the ultimate consumer thereof’ makes no sense at

Aull, if, as above. stated, the production aimed —

the Aet n e the 8 .

Nr .

Pie, 8 5

8 pe 8 — see JACKSON + „ NORTH.

‘WEST AIR LINES, eupra: MOEHL v. E. I. DU PONT

DE NEMOURS & co, 12 Labor Cases, Par. 63, 64

‘It has long'been the ‘Administrator's view (nen Par

ee 6 of Interpretive Bulletin No. 6, Revision of 1989,

; fegued by Administrator) that the purpose of: Section

ach was to make effective the penal sections af

| _ Section 16 af the Act, so as to inmunize the innocent ah

“per of goods Produced contrary tothe Act. ‘This interpre-

_ tation, while not controlling, is entitled to respectful con

_ Sideration. OVERNIGHT MOTOR TRANSPORTATION :

Co. ö. MISSEL, 316 U.S. 572, 86°L. Ed. 1083. To apply:

__~ exemption of production intended for commerce, contrary .

do de broad scope of the Act. What was happening here

. must not be lost sight of. Respondent acquired these raw

5 2 metals

„ eee e and it was,

under any reasonable theory, A continuous process; The

f rrocessing was simply a step in interstate commerce. In

BELL u. PORTER, supra, the Seventh Circuit denied this

b exemption in these words: “ ® since the stoppage’ of the :

goods for the purpose of manufacturing and processing

° did not stop the flow af commerce”. This Court itself long

ago reached the same view in eee v. WALLACE,

8 ee

1556 Us. 495, 66 L. 24 785, ‘She e SWIFT & CO. es

8. 196 US. $75, U.S. v. DARBY eee ä

8 0.8. 100. Ob : } ca a 8

1 TT oi Ws eoveccign insides. |

Against ability jn this situation, differentiating it from

. privats entities, untoward and uhexpected results will en-

eue. Take the case of a railroad owning coal mines. mo

the railroad should mine this coal iteelf, for consumption

on its engines, it would then not have the benefit of the :

". provision, because it ‘excludes the ultimate consumer who

is a “producer, manufacturer or processor” ; but if the

. the contractor would be exempt, says the respondent. II-

lustrations could be endlessly given. Take an automobile

company which owned its own steel mills, such as Kaiser.

Fraser and its Fontana plant, or the Pullman Company,

55 making its own cars: This would offer an opportunity for

oe wholesale evasion of the Act, 80 as to take large groups of

productive workers, otherwise under the Act, out from

| 86? twat sppenmn to tna whly wmepened 5

en. e \

oe ‘Pinal, ft not a6 dear va thle 30 5

judgment) as tPpreclude further „that the United

States was the ultimate consumer ‘these munitions. It

is true that Mr. Telford, who was General Manager for

espondent, did state in athdavt supporting judgment ee

that the munitions ‘were ° hipped ont of the said premises. see

: railroad utilized the medium of an independent contractor, os

„

ee eee . e e i b

nn Germany, Japan, Italy and othe? natiows” In- 21,

‘still, it is apparent that Mr. Telford, who was not in the |

- Government’s employ, could have had no personal know-

"ledge an to the actual use of these munitions. The mun- |

“Melford operated. ‘Tt would ben -part of fs ba to’

__ know, and we know that Mr. Telford, a private citizin,

we 1

0 for security reasons. ‘There uns no reason why he ae

oS know, ae rea Cone Ser oe ee

“would have been withheld from .

: “b

‘this, or any other, assertion in Mr. Telford’s affadavit;

but no one understood that this expression in his affidavit,

8 adverted to just above, was to be taken to mean än asser-

Indeed, the expression “used by ita armed

forces” could well mean, and comprehend, use by the Allies. 5

7 Allies we did have, thanks to a beneficent | ) ee

: among whom were England, Russia and hit 55

as a matter of common knowledge, were known to have used, -

great quantities of munitions produced in the United

. — States. To.s0 conclude is to ignore “Lend-Lease” U.S. C.

for “Lend-Lease” purposes. Therefore, if this case comes 84

to turn on this point, we respectfully suggest that it should

P sr 4 ge gS “5. -

. 2 ; 5

* 8 3

e e iii

"exemption rests upon him who asserts it — in this case,

~ vesting on respondent. umme,

We therefore respectfiifiy: submit’ that this case

sald be reversed and remanded for teal.

dee for Fee

. licence tes ae

~ March, 1948 given copy of the above and foregoing -brief

to Charles D. ee e Se ee ee

in, by manually placing same in his hands. nee

— 1

stitution and statutes, as President of the United State

: and in order to mest the manpower requirements of our

by e filler wald of our avaliable manpower, itis

——

law, as the Ghairman determines to be neces-

tee eee of this Order and .

: ‘Promote compliance with its provisions.

6. Mai te: is’ Onder eal. be eoustract as

| or in ‘conflict with any Federal,

State or local law limiting hours of work or with

Waa construed as suspending or modifying any pro-

es | Vision af the Fair Labor Standards Act (Act al

Ne June 25, 1988; 52 Stat. 1060; 29 U. S. C. 201, et

ee: eg) or any other Federal, State of local jaw

7 6

ii a cated diac - car ;

(2) „

8 000 ) aftr the expiration of seven year fom ch

% ab any time „„ „ „„ n

(6) e 8

ployess who le engaged ta. eokamerce in the

following rates:- — \ Aes ten

„

Jess than 80 cents an hour, *

date, not less than 40 cents an hour, or the rate

a (not less than 80 cents an hour) prescribed in ,

the applicable order of this Administrator ae

sued under section 208 of this title,

is lower, and |

‘>? —

ee hed

ie ease

(8) for a workweek longer

8 fe

—

d No employer * *.** e,

‘excess of the hours -*

N i HH i

2 BH £33:

all ike \a | 5 92 .

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.