[451] Carter _v._ Carter Coal Co., 298 U.S. 238 (1936).
[452] Ibid. 308-309.
[453] United States _v._ E.C. Knight Co., 156 U.S. 1 (1895).
[454] 301 U.S. 1 (1937).
[455] 49 Stat. 449.
[456] 301 U.S. at 38, 41-42 (1937).
[457] National Labor Relations Board _v._ Fruehauf Trailer Co., 301 U.S.
49 (1937); National Labor Relations Board _v._ Friedman-Harry Marks Clothing Co., 301 U.S. 58 (1937).
[458] National Labor Relations Board _v._ Fainblatt, 306 U.S. 601, 606 (1939).
[459] _See_ Santa Cruz Fruit Packing Co. _v._ National Labor Relations Board, 303 U.S. 453, 465 (1938).
[460] 52 Stat. 1060.
[461] United States _v._ Darby, 312 U.S. 100, 115 (1941).
[462] _See_ ibid. 113, 114, 118.
[463] Ibid. 123-124.
[464] Owen J. Roberts, The Court and the Const.i.tution, The Oliver Wendell Holmes Lectures 1951, (Harvard University Press 1951), 56.
[465] The Act provided originally that "for the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed * * * in any process or occupation necessary to the production thereof, in any State." By 63 Stat. 910 (1949), "necessary to the production thereof" becomes "directly essential to the production thereof." The effect of this change, which has not yet registered itself in judicial decision, seems likely to be slight, in view of the power, which the act gives the Administrator to lay down "such terms and conditions" as he "finds necessary to carry out the purposes of" his orders to prevent their evasion or circ.u.mvention.
_See_ Gemsco, Inc. _v._ Walling, 324 U.S. 244 (1945). The employees involved in the following cases have been held to be covered by the act:
(1) Operating and maintenance employees of the owner of a loft building, s.p.a.ce in which is rented to persons producing goods princ.i.p.ally for interstate commerce (Kirschbaum _v._ Walling, 316 U.S. 517 (1942));
(2) an employee of an interstate motor transportation company, who acted as rate clerk and performed other incidental duties (Overnight Motor Co.
_v._ Missel, 316 U.S. 572 (1942));
(3) members of a rotary drilling crew, engaged within a State, as employees of an independent contractor, in partially drilling oil wells, a portion of the products from which later moved in interstate commerce (Warren-Bradshaw Co. _v._ Hall, 317 U.S. 88 (1942));
(4) employees of a wholesale paper company who are engaged in the delivery, from company warehouse within a State to customers within that State, after a temporary pause at such warehouses, of goods procured outside of the State upon prior orders from, or pursuant to contracts with, such customers (Walling _v._ Jacksonville Paper Co., 317 U.S. 564 (1943));
(5) employees of a private corporation who are engaged in the operation and maintenance of a drawbridge which is part of a toll road used extensively by persons and vehicles traveling in interstate commerce, and which spans an intercoastal waterway used in interstate commerce (Overstreet _v._ North Sh.o.r.e Corp., 318 U.S. 125 (1943));
(6) a night watchman employed in a plant in which veneer was manufactured from logs and from which a substantial portion of the manufactured product was shipped in interstate commerce (Walton _v._ Southern Package Corp., 320 U.S. 540 (1944));
(7) employees putting in stand-by time in the auxiliary fire-fighting service of an employer engaged in interstate commerce (Armour & Co. _v._ Wantock, 323 U.S. 126 (1944));
(8) warehouse and central office employees of an interstate retail chain store system (Phillips Co. _v._ Walling, 324 U.S. 490 (1945));
(9) employees of an independent contractor engaged in repairing abutments and substructures of bridges which were part of the line of an interstate railroad (Fitzgerald Co. _v._ Pedersen, 324 U.S. 720 (1945));
(10) maintenance employees of an office building which was owned and operated by a manufacturing corporation and in which 58 per cent of the rental s.p.a.ce was used for its central offices, where its production of goods for interstate commerce was administered, managed and controlled, although the goods were actually produced at plants located elsewhere (Borden Company _v._ Borella, 325 U.S. 679 (1945));
(11) the employees of an electrical contractor, locally engaged in commercial and industrial wiring and dealing in electrical motors and generators for commercial and industrial uses, whose customers are engaged in the production of goods for interstate commerce (Roland Co.
_v._ Walling, 326 U.S. 657-678 (1946));
(12) employees of a window-cleaning company, the greater part of whose work is done on the windows of industrial plants of producers of goods for interstate commerce (Martino _v._ Michigan Window Cleaning Company, 327 U.S. 173-178 (1946));
(13) mechanics engaged in servicing and maintaining equipment of a motor transportation company which is engaged in interstate commerce (Boutell _v._ Walling, 327 U.S. 463 (1946)). Nor does the maxim "_de minimis_"
apply to the act. Hence the publishers of a daily newspaper only about one half of one per cent of whose circulation is outside the State of publication are not by that fact excluded from the operation of the act.
(Mabee _v._ White Plains Publishing Co., 327 U.S. 178 (1946)). On the other hand, an employee whose work it is to prepare meals and serve them to maintenance-of-way employees of an interstate railroad in pursuance of a contract between his employer and the railroad company is not "engaged in commerce" within the meaning of ---- 6 and 7 of the Fair Labor Standards Act (McLeod _v._ Threlkeld, 319 U.S. 491 (1943)); nor are maintenance employees of a typical metropolitan office building operated as an independent enterprise, which is used and is to be used for offices by every variety of tenants, including some producers of goods for commerce (10 East 40th St. _v._ Callus, 325 U.S. 578 (1945)); nor are maintenance employees of a building corporation which furnishes loft s.p.a.ce to tenants engaged in production for interstate commerce "unless an adequate proportion of such tenants are so engaged." (Schulte _v._ Gangi, 328 U.S. 108 (1946)). _Also_ Section 12 (a) of the Fair Labor Standards Act, which provides that "no producer, * * * shall ship or deliver for shipment in commerce any goods produced in an establishment * * * in or about which * * * any oppressive child labor has been employed * * *" was held inapplicable to a company engaged in the transmission in interstate commerce of telegraph messages, (Western Union _v._ Lenroot, 323 U.S. 490 (1945)). The decision was a five-to-four one. It should be added that the Court has not always been unanimous in favoring coverage by the act. In the Borden case above, Chief Justice Stone, speaking for himself and Justice Roberts, protested, as follows: "No doubt there are philosophers who would argue, what is implicit in the decision now rendered, that in a complex modern society there is such interdependence of its members that the activities of most of them are necessary to the activities of most others. But I think that Congress did not make that philosophy the basis of the coverage of the Fair Labor Standards Act. It did not, by a "house-that-Jack-built" chain of causation, bring within the sweep of the statute the ultimate _causa causarum_ which result in the production of goods for commerce. Instead it defined production as a physical process. It said in -- 3 (j) "Produced means produced, manufactured, mined, handled, or in any other manner worked on" and declared that those who partic.i.p.ate in any of these processes "or in any process or occupation necessary to" them are engaged in production and subject to the Act." 325 U.S. 679, 685. On the other hand, the holding in 10 East 40th St., above, was a five-to-four decision, and Justice Frankfurter, speaking for the Court took pains to explain that Congress in enacting the Fair Labor Standards Act, "did not see fit, * * *, to exhaust its const.i.tutional power over commerce." 325 U.S. 578-579. _See_ 87 Law Ed.
pp. 87-105 for a note reviewing both Supreme Court, lower Federal Court, and State court cases defining "engaged in commerce" as that term is used in the Fair Labor Standards Act.
[466] 50 Stat. 246.
[467] 315 U.S. 110 (1942).
[468] Ibid. 118-119.
[469] 317 U.S. 111 (1942).
[470] 52 Stat. 31.
[471] 317 U.S. at 128-129.
[472] Ibid. 120-124 _pa.s.sim_. In United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939), the Court sustained an order under the Agricultural Marketing Agreement Act of 1937 (50 Stat. 752) regulating the price of milk in certain instances. Said Justice Reed for the majority of the Court: "The challenge is to the regulation "of the price to be paid upon the sale by a dairy farmer who delivers his milk to some country plant." It is urged that the sale, a local transaction, is fully completed before any interstate commerce begins and that the attempt to fix the price or other elements of that incident violates the Tenth Amendment. But where commodities are bought for use beyond State lines, the sale is a part of interstate commerce. We have likewise held that where sales for interstate transportation were commingled with intrastate transactions, the existence of the local activity did not interfere with the federal power to regulate inspection of the whole.
Activities conducted within the State lines do not by this fact alone escape the sweep of the Commerce Clause. Interstate commerce may be dependent upon them. Power to establish quotas for interstate marketing gives power to name quotas for that which is to be left within the State of production. Where local and foreign milk alike are drawn into a general plan for protecting the interstate commerce in the commodity from the interferences, burdens and obstructions, arising from excessive surplus and the social and sanitary evils of low values, the power of the Congress extends also to the local sales."" Ibid. 568-569. _See also_ H.P. Hood & Sons _v._ United States, 307 U.S. 588 (1939), another milk case; and Mulford _v._ Smith, 307 U.S. 38 (1939), in which certain restrictions on the sale of tobacco, under the Agricultural Adjustment Act of 1938 (52 Stat. 31), were sustained in an opinion by Justice Roberts, who spoke for the Court in the latter case.
[473] United States _v._ The William, 28 Fed. Cas. No. 16,700, 614, 620-623 _pa.s.sim_ (1808). Other parts of this opinion are considered below in connection with the prohibiting of interstate commerce. _See also_ Gibbons _v._ Ogden, 9 Wheat. 1, 191 (1824); United States _v._ Marigold, 9 How. 560 (1850).
[474] 289 U.S. 48 (1933).
[475] Ibid. 57, 58.
[476] 5 Stat. 566 -- 28.
[477] 9 Stat. 237 (1848).
[478] 24 Stat. 409.
[479] 35 Stat. 614; 38 Stat. 275.
[480] 29 Stat. 605.
[481] 192 U.S. 470 (1904).
[482] 223 U.S. 166 (1912); _cf._ United States _v._ California, 332 U.S.
19 (1947).
[483] 239 U.S. 325 (1915).