author: McGUIRE, Associate Justice.

text:
    In re NIELSEN.
    No. 17796M.
    District Court of the United States for the District of Columbia.
    April 23, 1945.

      No counsel for applicant.
   McGUIRE, Associate Justice.

Petitioner religiously is a Seventh-day Adventist. He said he is willing to take the oath of allegiance, but would qualify that part of the oath which would require him to support and defend the Constitution of the United States against all enemies foreign and domestic as he is as a matter of religious scruples opposed to the taking of human life.

If such were all the facts, then obviously upon the authority of United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889; United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302; United States v. Bland, 283 U.S. 636, 51 S.Ct. 569, 75 L.Ed. 1319; Shelley v. United States 74 App.D.C. 181, 120 F.2d 734, the petition should be denied.

But there is an additional fact of importance.

The applicant was inducted into the armed forces and served as a member of such from October 26, 1943 to December 1st of that year when he was honorably discharged for reasons that are not pertinent.

While so serving he took the soldier’s oath, wore the uniform and performed such military duties as were- required in a medical training center to which he was attached, which did not include instruction in the use of combat weapons, nor was he required to submit himself to such instruction inasmuch as he stated upon induction that he was a Seventh-day Adventist.

He now claims, however, that by reason of such service and because of the fact he took the soldier’s oath he is entitled to citizenship under the provisions of 8 U.S.C.A. §§ 1001-1005 inclusive, and the authority of In re Kinloch, D.C., 53 F.Supp. 521, and the Department of Justice so recommends.

I am unable to concur. True he is qualified for citizenship provided he complies with certain essential prerequisites — one of which is the taking of the prescribed oath of allegiance. His military service in no way relieves him of the obligation of compliance.

The statute, supra, does not make naturalization of persons serving in the armed forces of the United States mandatory, it is still discretionary with the court.

Although certain hitherto indispensable conditions are waived.

And thirdly its provisions “ * * * Shall not apply to (1) * * * or (2) any conscientious objector who performed no military duty whatever or refused to wear the uniform” (§ 1004) — all of the other requirements are specifically retained, among them the oath of allegiance infra.

Nowhere is it stated that the soldier’s oath shall take the place of the oath of allegiance required of applicants for citizenship — which is mandatory (Title 8 U.S.C.A. § 735 (a) (b), “* * * that I will supp ort and defend the Constitution and laws of the United States against all enemies, foreign and domestic * * * and that I take this obligation freely without any mental reservation * * * ” (Italics supplied).

I can find no warrant in law permitting the court to permit the taking of this oath with the limitation or qualification desired to be added to it by the applicant.

True, as referred to previously, he served in the armed forces — he had no choice — and upon being inducted he immediately claimed his status as a conscientious objector and under the provisions of that law was given noncombatant service.

He petitions for citizenship which is a privilege and not a right, and then places upon the correlative duty it demands, a qualification and a limitation he has no right to impose.

Congress has'" placed, once granted, no limitation on the privilege- — the applicant to gain the former, must take the oath which is the requisite and prescribed condition precedent and can not be heard to qualify or limit it either in terms or substance.

Indeed “It is not within the province of the courts to make bargains with those who seek naturalization. They must accept the grant and take the oath in accordance with the terms fixed by the law, or forego the privilege of citizenship. There is no middle choice. If one qualification of the oath be allowed, the door is opened for others, with utter confusion as the probable final result.” United States v. Macintosh, supra [283 U.S. 605, 51 S.Ct. 575],

This in no way negatives the right of any man to live by his conscience or the constitutional provision relating to freedom of religion. Indeed the world would be much better if men in the aggregate did so — true, men have gone to the scaffold, the block and the stake for their adherence to what they believed to be the voice of God, but under circumstances where they were being compelled to do violence to their conscience and convictions by the fiat of the state. We have no such situation here — he is not being compelled to do anything — but he asks for the privilege of citizenship, and then wants to limit its reciprocal obligation with a reservation which he, as a seeker of the privilege, has no right to impose.

Title 8 U.S.C.A. §§ 1001-1005, neither abrogates, limits or in any other way qualicited fies the law as laid down in the Schwimmer, Bland, Macintosh and Shelley cases, supra.

The application is denied.

       Seventh-Day Adventist War Service Commission
      General Conference of Seventh-Day Adventists Takoma Park, Washington, D. C. (Reprinted May, 1942)
      Seventh-Day Adventist and Civil Government
      This statement was authorized by the General Conference Committee of Seventh-day Adventists, September 25, 1940. Takoma Park, Washington, D.C.
      * * * Relation of Seventh-day Adventists to War.
      In harmony with their profession as followers of the Prince of Peace, can Seventh-day Adventists engage in the destruction of their fellow men? This is a question which has confronted the members of the Seventh-day Adventist Church from its early history. From their study of life and example of Christ and the teachings of the gospel, they have from the time of their organization been noncombatants. * * 9

        9 9 9 In May, 1934, the General Conference Committee of Seventh-day Adventists approved a document of instruction to the youth of its church, two paragraphs of which refer to noncombatancy as follows:
      “The Noncombatants. — While recognizing that warfare is unavoidable in maintaining civil government in a world of sin, noncombatants conscientiously object to taking human life. They believe that in this way they can render a greater service to their fellow men and be a greater influence for the cause of righteousness than by taking combatant part in the destruction of human life. They do not, however, condemn those who take part in war. On the other hand, noncombatants are willing to aid their government in every consistent way in time of warfare, except by taking human life. They will help to feed and clothe the Army; assist in caring for the sick and wounded; help to bury the dead; aid in the transportation of men, food, clothing, etc. They will build the camps; go into the fields, mines and factories, at the direction of the government. They will help to fortify positions and otherwise protect human life. They will carry the wounded back from the front. The noncombatant is not a coward; he simply and conscientiously and courageously objects to taking human life, so far as his participation is concerned.
      “Seventh-day Adventists of the United States are registered with our Government as noncombatants. They are always ready to serve without reservation, except bearing arms in combat and doing unnecessary work on the Sabbath day. As a matter of duty and loyalty to human government which is ordained of God, they stand loyally and patriotically with their Government.”
      In this declaring the teaching of the church, this action made it plain that the member’s own conviction must be the ultimate factor in this matter of conscience. The action further states: “The church does not, attempt to dictate to its members individually, but each person must stand upon his own. conscientious convictions. * * • ”

       “I, -, do solemnly swear (or affirm) that I will bear true faith and allegiance to the. United States of America; that X will serve them honestly and faithfully against all other enemies whomsoever; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to the Rules and Articles of War.”

       Title 8 U.S.C.A. § 1001.

       Title 50 U.S.C.A. Appendix, § 305(g).


source: Caselaw Access Project

author: SCHOONMAKER, District Judge.

license: Public Domain

text:
    WALLING, Administrator, Wage and Hourbor, v. McCRADY CONST. CO. Division, United States Department of La.
    No. 2394.
    District Court, W. D. Pennsylvania.
    March 28, 1945.

      Irving J. Levy, Acting Sol., of Washington, D. C., Ernest N. Votaw, Regional Atty., and Bernard L. Barkan, Atty., Wage and Hour Division, United States Department of Labor, both of Philadelphia, Pa., and Geo. W. Jansen, Dept, of Labor, Wage and Hour Division, of Washington, D. C., for plaintiff.
   SCHOONMAKER, District Judge.

This is an action brought pursuant to Section 17 of the Fair Labor Standards Act of 1938, c. 676, 52 Stat. 1060, 29 U.S. C.A. § 201 et seq. (hereinafter referred to as “the Act”), to restrain defendant from violating Sec. 15(a) (2) of the Act, 29 U.S. C.A., § 215(a) (2).

The case, which was heard on complaint, answer, and proofs, presents the question of whether certain employees of defendant, who were admittedly paid less than the minimum overtime rates, are within the meaning of the Act. If they are, then the plaintiff is entitled to an injunction to restrain violations of the Act as to such employees who are found to be within the coverage of the Act.

The evidence disclosed that under fifty-eight different contracts relating to the maintenance, repair, reconstruction, and construction of different transportation, communication and industrial facilities, defendant employed workmen who were not paid in accordance with the provisions of the Fair Labor Standards Act.

We shall discuss the work done under these contracts under six main categories, i. e.:

I. Public highways, roads and bridges

II. Motor carrier terminal facilities

III. Telephone facilities

IV. Railroad facilities

V. Industrial Plant facilities

VI. Loading iron ore and limestone

I.

Fourteen contracts involved in this case called for work in the maintenance, repair or construction of public highways, roads, and bridges in the Commonwealth of Pennsylvania.

The plaintiff contends: (1) that the highways, roads, and bridges on which defendant’s employees worked, are all instrumentalities of interstate commerce; that therefore all of defendant’s employees engaged in maintaining and repairing thereof, were “engaged in commerce” within the meaning of the Act; (2) that inasmuch as said highways, roads, and bridges are located in and about a large industrial area devoted to the production of goods for commerce — and were used in such production — the employees engaged in their maintenance and repair, were “employed * * * in a process or occupation necessary to the production of goods for commerce” within the meaning of the Act.

The defendant contends that the Act does not apply to any of its activities under the highway contracts involved in this suit, because: (a) Section 3(d) specifically states that the word “employer”, as used in the Act, “shall not include the United States or any State or political subdivision of a State”; (d) that the streets and highways involved in this suit are local in their character, and not instrumentalities of interstate commerce; and (c) that the Act applies only to repair and maintenance work, does not apply to new construction, and that in instances where new construction only is involved, is not applicable for that reason. These contentions are without merit.

As to the first contention, in carrying out these highway contracts for the Commonwealth of Pennsylvania, or any of its political subdivisions, defendant is an independent contractor. The employees involved worked for the defendant, not for the United States, nor any-State or political subdivision thereof. There is no evidence showing any employer-employee relationship between defendant’s employees and the contracting States or political subdivisions thereof. We therefore hold that defendant’s employees are not within the scope of this exception of the Act. See Walling v. Craig, D.C., 53 F.Supp. 479, 483; Walling v. Patton-Tulley Transportation Co., 6 Cir., 134 F.2d 945, in which the court said on page 949: “ * * * The argument that it was the Congressional intention to make the Fair Labor Standards Act inapplicable to work under government contract, must be rejected. No reason appears why contractors for the government are to be permitted to maintain substandard labor conditions while private contractors are prohibited from so doing, and such view would thwart the clearly defined purpose of the Congress, particularly if applied at a time when all, or nearly all, major industries are operating upon government contract.”

Nor does the fact that the economic burden of complying with the Act might be carried on to the State, and to political subdivisions thereof, constitute a valid objection to complying with the Act. See Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 482, 140 A.L.R. 615; Curry v. United States, 314 U.S. 14, 62 S.Ct. 48, 86 L.Ed. 9; James v. Dravo Contracting Co., 302 U.S. 134, 160, 58 S.Ct. 208, 82 L.Ed. 115, 114 A.L.R. 318.

As to the second contention whether or not the highways involved in this case are instrumentalities of interstate commerce, the test to be applied in determining whether or not this Act applies, has been stated by the United States Supreme Court in Overstreet in North Shore Corporation, 318 U.S. 125, at pages 129, 130, 63 S.Ct. 494, at page 497, 87 L.Ed. 656, as follows: “We think that practical test should govern here. Vehicular roads and bridges are as indispensable to the interstate movement of persons and goods as railroad tracks and bridges are to interstate transportation by rail. If they are used by persons and goods passing between the various States, they are instrumentalities of interstate commerce. Cf. Covington & Cincinnati Bridge Co. v. Kentucky, 154 U.S. 204, 218, 14 S.Ct. 1087, 1092, 38 L.Ed. 962. Those persons who are engaged in maintaining' and repairing such facilities should be considered as ‘engaged in commerce’ even as was the bolt carrying employee in the Pedersen case, supra. [Pedersen v. Del. Lack. & West. R. R. Company, 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann.Cas.1914C, 153] because without their services these instrumentalities would not be open to the passage of goods and persons across state lines. And the same is true of operational employees whose work is just as closely related to the interstate movement. Of course, all this is subject to the qualification that the Act does not consider as an employer the United States or any State or political subdivision of a State, and hence does not apply to their employees. § 3(d).”

From the evidence in this case, we find that roads, highways and bridges involved herein are instrumentalities of interstate commerce, and that the persons engaged in maintaining and repairing them are engaged in such commerce. The factors that lead to this conclusion are these:

(1) Pittsburgh is the center of a large industrial area encompassing Allegheny, Beaver, and Westmoreland Counties. It is the greatest iron-and-steel producing area of the world. It is also a leading industrial center in other industries; i. e., electric equipment, chemicals, plate glass, railroad supplies, machinery and parts, slaughtering and meat packing, paper, printing, etc. Raw materials for these industries move constantly by road and rail, and by road alone, between this area and other States. Traffic-density tests in the Pittsburgh area over a one-year period revealed that 155,983 motor vehicles passed through ten test-stations every twenty-four hours. 21,860 were commercial vehicles, most of them trucks. They originated in twenty-seven different States, and were moving to twenty-two States. Although the proportion of interstate travel varied among stations, it never fell below 64%. 63% of the trucks and 19% of the buses were making interstate trips.

(2) The streets and highways involved in defendant’s repair and maintenance contracts are roads available and regularly used by persons and goods moving among the several States. They are therefore instrumentalities of commerce.

Among the streets and highways repaired and reconstructed by defendant, are portions of United States Highways 22 and 30. These highways are systems of interstate roads between important points. United States Highway 22 runs from Cincinnati, Ohio, through Pennsylvania and other States to New York. United States Highway 30 runs continuously from Oregon to Atlantic City, New Jersey. Each section of these highways covered by defendant’s contracts is also a part of the Federal Aid System of Highways, part of the principal traffic routes of military importance designated by the War Department, and a part of the inter-regional Highway System tentatively selected by the National Research Council.

We are of the opinion that the evidence clearly establishes the fact that the streets worked on by the defendant, constituting portions of these United States Highways 22 and 30, are used by “persons and goods, passing between various states”, and therefore are “instrumentalities’ of commerce”. In fact, the proofs in this case clearly show that all the roads of any importance in the Pittsburgh Area carry persons and goods in interstate commerce.

The chief work done by defendant and its employees was the removal of old pavement and the laying of new. The work was done by various kinds of employees, i. e., — foremen, timekeepers, service drivers, tractor operators, power-shovel operators, oilers and greasers, grader operators, crane operators, power operators, finishing-machine operators, roller operators, form setters, finishing blocklayers, laborers, flagmen, water boys, and watchmen. All their work was immediately related to the repair of roads. All were employed on the job site, except service drivers who were employed in hauling parts and tools to the site to make repairs to machinery and equipment, and to carry directions for the prosecution of the work. They were all engaged in commerce within the meaning of the Act. See Overstreet v. North Shore Corporation, supra; Pedersen v. Fitzgerald Co., 318 U.S. 740, 63 S.Ct. 558, 87 L.Ed. 1119, (reversing 288 N.Y. 687, 43 N.E.2d 83); North Shore Corporation v. Barnett, 5 Cir., 143 F.2d 172; Walling v. Craig, supra; Walling v. Patton-Tulley Transportation Co., supra.

As to Campbell’s Run Road, a public highway which connects U. S. Highways 22 and 30 with the City of Carnegie, Pennsylvania, we are of the opinion that it is an instrumentality of interstate commerce, even though it is a county road, because the evidence shows that out-of-state traffic goes over this road from Carnegie to and from points in Ohio. Then, too, this road is regularly used in the transportation of persons and goods between the various states. It is regularly used in the pickup and delivery of mail and freight, a substantial portion of which moves in interstate commerce. The same kind of employees who worked on this job were employed on the jobs on Routes 22 and 30, above referred to. The character of the work was the same, with the exception that in Campbell’s Road the existing road was widened and straightened. In addition, two bridges forming part of the highway were replaced by new bridges at apparently the same locations. This road, as reconstructed, followed the same route as before and was used by the same traffic. But it remained the same instrumentality ■of commerce. (See Pedersen v. Fitzgerald, supra). In this case, the abutments of two interstate bridges had been damaged by flood and the substructures of two others damaged; and the plaintiff constructed •entirely new abutments under two bridges .and repaired the substructures of the others. The court held on authority of Overstreet v. North Shore Corporation, supra, that the •employees were engaged in commerce and entitled to the benefits of the Act.

The principle to be applied in the instant •case is illustrated in Walling v. Patton-Tulley Transportation Co., supra, in which the Circuit Court of Appeals of the Sixth •Circuit concluded that work on entirely new dikes and revetments on the Mississippi River was covered by the Act, even though the construction work was new, because the river was a highway of commerce.

As to Duquesne Way, a street in the •City of Pittsburgh, twelve blocks long and lying on the Allegheny River side of Pittsburgh’s “Golden Triangle”, we hold that :to be an instrumentality of commerce. It is used frequently each day in the pickup and delivery of interstate mails, express and freight. Terminals of four interstate carriers are located on it, and it is used daily by trucks beginning or ending interstate journeys. The Pennsylvania Railroad Freight Depot is also located at one end of this street, and it is used constantly by freight to and from the States in the course of interstate journeys. Since this street is an instrumentality of interstate commerce, the work done therein by defendant’s employees in repaving and in repairing its drains, sidewalks and sewers, constituted employment in commerce.

The final question in the instant case as to defendant’s highway activities involves the contracts with Allegheny County, Pennsylvania, whereby defendant repaired certain streets and replaced an obsolete and dangerous bridge, which together constitute a main through-traveled route from the Borough of Wilkinsburg through the Boroughs of Edgewood, Swiss-vale and North Braddock to the Borough of East Pittsburgh from United States Highways 22 and 30 in the Borough of Wilkinsburg to United States Highway 30 in the Borough of East Pittsburgh. The streets involved are Edgewood Avenue in Edgewood, Hawkins and Bell Avenues in North Braddock, Center and Bessemer Streets in East Pittsburgh. It also involves Dooker’s Hollow Bridge. All of these streets and this bridge constitute main thoroughfares in said boroughs. These streets are used primarily for local traffic. But being also used by persons and goods passing between various States, they are therefore instrumentalities of interstate commerce. That, we think, is sufficient to bring them within the interstate commerce rule. They are used daily in the pickup and delivery of interstate mails, interstate express and interstate freight. Every day fourteen trucks of the North Braddock Motor Lines, moving in interstate commerce, used Edgewood Avenue, Hawkins Avenue, and Dooker’s Hollow Bridge. In our view, the interstate use of these streets and the Dooker’s Hollow Bridge was not so trivial and sporadic as to be disregarded as de minimis. We therefore hold they were instrumentalities of interstate commerce.

(3) Defendant’s third contention is that the Act applies only to repair and maintenance work on highways, and not to new construction thereon; that therefore in those instances where there was new work on such highways, the Act does not apply. We cannot agree with that contention. In most of the highways involved in this case, where defendant claims the work was new, — even though the road follows the old — it relies on the magnitude, of the work, notwithstanding the work was on the old road. In such cases there is no doubt that the work done by defendant was repair or reconstruction of an instrumentality of interstate commerce. In some instances, parts of the highway were relocated following the general location of the old highway, and served the same purpose. In those cases we are of the opinion the work done by the employees falls squarely within the Act. In such instances, the work done was clearly to improve portions of a highway that was used in interstate commerce.

There are also other independent reasons why defendant’s employees should be held within the coverage of the Act. Section 3(j) provides that for the purpose of the Act, any person employed in “any process or occupation necessary to the production” shall be considered as “engaged in the production of goods.” The industrial character of the Pittsburgh area and the extent to which its streets and highways are used in carrying persons, raw materials and goods in process of fabrication to factories, is a factor to be considered. The roads and the work of the employees who repair and reconstruct them are indispensable to the continuance of production of goods moving in interstate commerce. Consequently it may properly be held that defendant’s employees working on the roads are covered by the Act, not only because they are engaged in commerce under the Overstreet decision, but because they are also engaged in the production of goods that move in interstate commerce.

II.

The next phase of the case relates to activities of defendant’s employees in repairing motor carrier facilities. Under contract with Motor Freight Express, Inc., defendant’s employees resurfaced the concrete apron about a loading dock, and excavated for an additional gasoline tank at the terminal of the Motor Freight Express, Inc. This corporation is engaged in interstate commerce. All the goods carried by it move interstate. The loading and unloading thereof is interstate commerce. (See Fleming v. Jacksonville Paper Co., 5 Cir., 128 F.2d 395, 398, affirmed 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460). The concrete apron which defendant’s employees resurfaced was a facility by which this commerce was carried. We hold therefore that the employees resurfacing this apron were engaged in commerce and covered by the Act. The extension of facilities for fueling the trucks at this terminal was also a mere addition to an existing facility of interstate commerce.

III.

The next phase presented is whether or not defendant’s employees working on telephone facilities, both trunk lines and local lines used for interstate communications, are within the coverage of the Act. We are of the opinion that the entire telephone system, both local and through lines, is within the coverage of the Act, for they are all parts of the same system which furnishes interstate communication service. Schmidt v. People’s Telephone Union, 8 Cir., 138 F.2d 13; National Labor Relations Board v. Central Missouri Telephone Co., 8 Cir., 115 F.2d 563; National Labor Relations Board v. J. G. Boswell Co., 9 Cir., 136 F.2d 585. The work of defendant’s employees was done in the maintenance and repair of an instrumentality of interstate commerce, and these employees engaged therein were employed in commerce.

The question, however, arises in this case of whether or not work of defendant’s employees in providing additional telephone facilities to improve the system and make it more flexible is within the coverage of the Act. The facts as to this construction were as follows:

As a part of its network, the Bell Telephone Company also maintained a trunk route between the central offices of Sterling and Grant and other offices, which was designated “Normal Route for Trunks between Sterling and Grant and other offices”. This trunk was regularly and continuously used for communication between the City of Pittsburgh and various States. In order to provide additional facilities and to improve the system by making it more flexible, relieving the congestion on the Sterling-Grant trunk, a new trunk was set up between the Sterling office and the Montrose office, known as the SterlingMontrose office.

Under a contract with the Bell Telephone Company, dated April 14, 1941, defendant and its employees constructed the tile ducts for this new Sterling-Montrose trunk. They installed a new tile duct beginning at Rural Street in East Liberty, Pittsburgh, and along St. Clair Street up to Margaretta Street, placing it alongside an existing duct, thus “reinforcing” that line. From that point, new duct was installed from St. Clair Street to North Negley Avenue, and on North Negley Avenue to Black Street, from there to Stanton Avenue, to Swan Way, and from Swan Way as far as Gale Street to Gale Way, then to Butler Street to the Pennsylvania Railroad tracks, and then to the bank of the Allegheny River. At certain points along this route there were facilities of the telephone company and it was unnecessary to put in new tile or reinforce the old. For the remaining distance new ducts were installed. After the completion of the tile ducts, trunk cables were pulled through, which provided direct service connecting the Sterling office with the Montrose office. Over these trunks interstate calls could be, and were made by subscribers of the telephone company. After the installation of the direct service A trunks, one percent of the regular traffic was in interstate commerce.

In our opinion, the construction of this link in the telephone system was work on an instrumentality of commerce, and it facilitated the continued flow of interstate communications. The work was as closely linked to the transmission of interstate messages as a repair or enlargement of existing lines. We therefore conclude that the work on this link is within the coverage of the Act.

IV.

The next question we have to consider is whether the employees working on projects in connection with the Union Railroad Company were within the coverage of the Fair Labor Standards Act. Our conclusion is that they were. The Union Railroad is a switching railroad serving industrial plants in the Pittsburgh area. A substantial part of tonnage carried by this railroad originated at out-of-State points, or was moved to points outside Pennsylvania. It was thus engaged in interstate commerce. It is therefore an instrumentality of interstate commerce, and any work done in the main-tenance and reconstruction of that railroad is employment in commerce within the meaning of the Act. Overstreet v. North Shore Corporation, supra; Pedersen v. Fitzgerald, supra. This railroad performs other services in connection with production in the steel mills in this area, such as handling and moving ore, mqlten metals, molds, and slag, between plants and to cinder dumps. This, we think, also brings the railroad’s employees within the coverage of Section 3(j) of the Act. This section provides that an employee shall be engaged in production of goods if he is employed “in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof.” See Bracey v. Luray, 4 Cir., 138 F.2d 8; Mid-Continent Pipe Line Co. v. Hargrave, 10 Cir., 129 F.2d 655. See also our opinion Shepler v. Crucible Steel Co., 60 F.Supp. 260, wherein plaintiffs were seeking to recover from Crucible Steel Company compensation for overtime under the Fair Labor Standards Act. The plaintiffs in that case were watchmen on a barge-landing maintained by the Crucible Fuel Company along the Ohio River where its barges carrying coal were moored. This coal was in transit to the Crucible Steel Company which was engaged in manufacturing iron and steel, which products were sold and delivered by the Steel Company in interstate commerce. The coal transported did not .itself move in interstate commerce, but was converted into coke at the plant of the Steel Company. This coke was used in the process of manufacturing the steel and iron that went into interstate commerce. In our opinion filed February 3, 1943, 60 F.Supp. 260, we said:

“On these facts it is our view that plaintiffs were engaged in occupations ‘necessary to the production’ of iron and steel which go into interstate commerce. Without fuel the furnaces of the Steel Company could not operate at all. The fact that the Steel Company uses as a medium for getting that fuel to its furnaces a wholly-owned and controlled subsidiary corporation, the Crucible Fuel Company, does not withdraw the employees of that subsidiary corporation from the provisions of the Fair Labor Standards Act. Those engaged in the mining of coal and transporting it from the mines to the furnaces, are engaged in an occupation ‘necessary to the production of goods for commerce*. Whether they work for the Steel Company directly, or for a wholly-owned subsidiary, can make no difference, because without fuel you cannot operate a furnace in a steel mill.

“In our opinion, this case falls squarely within the ruling of the Supreme Court in Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, holding that employees of an owner of a building who were engaged in its maintenance and operation, were engaged in an ‘occupation necessary to the production’ in interstate commerce, where the tenants of the building were engaged principally in the production of goods for interstate commerce. In the instant case, I would say the necessity is much stronger than in Kirschbaum v. Walling, supra, because you cannot make steel at all without heat in the furnaces; and the Fuel Company is owned by the Steel Company.

“We therefore conclude that the Fair Labor Standards Act of 1938 is applicable to plaintiffs as employees of defendant Fuel Company.”

The judgment in that case was affirmed by the Circuit Court of Appeals (Shepler v. Crucible Fuel Co., 3 Cir., 140 F.2d 371), which assumed, without deciding, that the Act was applicable to the plaintiff in that case.

Now, particularly referring to the work actually done by defendant and its employees for the Union Railroad Company, they constructed a viaduct, known as Munhall Arches, carrying two main tracks of the Union Railroad Company. They reconstructed the Breick Hollow Arch, which elevated the railroad track over the underpass of the Breick Hollow Arch. They reconstructed a similar arch at Clairton Junction. They repaired the East Pittsburgh and Clairton viaducts of the Union Railroad Company. The defendant and its employees also made repairs to the coaling station at Clairton, which was used as an integral part of the railroad facilities in transporting interstate goods. They constructed a substructure for an M. O. Tower with necessary retaining wall for housing interlocking and signal equipment to replace an old structure used for the same purpose. At a result of its design and location, it could have no other use. It is an integral part of existing railroad facilities functionally, and essential to their operation. Defendant and its employees made repairs to Hill Station Roundhouse, which was used for the repair and inspection of its steam locomotives. Defendant and its employees also' did the grading and substructure construction of a consolidated maintenance-of-way shop, storehouses, and garage to house the Railroad’s maintenance-of-way facilities,, which had been scattered at various points along the Railroad’s right of way.

Our conclusion is that defendant’s employees, in working on the several jobs above enumerated, were engaged in commerce and the production of goods for commerce. The fact that the defendant itself is engaged in construction, and not production, is of no moment. The test is the character of the work of the employees. Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Walling v. Sondock, 5 Cir., 132 F.2d 77 (certiorari denied 318 U.S. 772, 63 S.Ct. 769, 87 L.Ed. 1142).

We consider next the question of whether or not defendant’s employees working on railroad facilities in connection with industrial plants, are engaged in commerce and the production of goods for commerce. We take up first the railroad trestle build at the Wood Works of the Carnegie-Illinois Steel Corporation. In this connection, defendants and its employees reconstructed a concrete floor for said railroad trestle. The Carnegie-Illinois Steel Corporation produces goods for interstate commerce at its Wood Works, at which it receives materials in interstate commerce, and ships goods in interstate commerce via the Union Railroad Company. This Corporation also moves freight within the steel plant, dumping waste and hauling steel products and raw materials between mills and between the various trunk lines and the mills. Our conclusion is that the work done by the defendant’s employees was covered by the Fair Labor Standards Act. The fact that the trestle was located within the Wood Works rather than on the main line of the Union Railroad, only emphasizes the importance of this trestle for the production of goods for commerce.

We consider now the industrial spurs constructed at the Linde Air Products Company’s plant. In June 1939, the Union Railroad Company constructed a side-track on its right of way and the yard-tracks of the Linde property. Defendant’s employees did the grading for the work. In and after this construction, interstate shipmer' s moved in and out of the plant over them.

At the plant of the Wm. B. Scaife Company along the Pennsylvania Railroad, defendant’s employees did the grading and installed the railroad tracks for a similar siding. The Scaife Company is engaged in the production of domestic-range boilers, hot-water heaters, pneumatic tanks, gas cylinders, etc., for shipment in interstate commerce. At the request of the United States Government, defendant built an additional structure within the site of this plant; and in connection therewith, constructed a railroad siding to facilitate the movement of construction materials and the shipment of munitions produced. Defendant’s employees worked on this siding. It is perfectly plain that these railroads spurs and sidings are necessary to facilitate the movement of interstate commerce to and from these plants. While they were not integrated into existing commerce or existing production, nevertheless they were clearly necessary for the production of goods for commerce, and therefore covered by the Fair Labor Standards Act.

As to the Linde Air Products Company underpass, while the Linde Company was building its new plant for the production of liquid oxygen, the Union Railroad Company assigned to defendant the work of constructing an underpass under two main lines of the Railroad running adjacent to the plant-site, to avoid a level grade-crossing at the point of entry to the Linde plant. We are of the opinion that the defendant’s employees engaged in this work were covered by the Act, by reason of the fact that the elimination of accident hazards is an integral part of commerce in which the Railroad was engaged.

In regard to the remaining contracts involved in this suit on. which defendant and its employees worked, they involve various kinds of maintenance, repairs, replacements, and construction of plant-facilities in three large industrial establishments which ship their products in interstate commerce; i. e., — Carnegie-Illinois Steel Corporation, Westinghouse Electric & Manufacturing Company, and the William B. Scaife Company. The work done was an integral part of the normal maintenance and operation of their respective plants. Part was the repair, reconstruction and modification of existing facilities. The remainder was the construction of new units which were designed for use in the production of particular goods. These new units were all integral parts of existing plants, and were constructed to enlarge or replace outmoded buildings and machinery, and thus to continue the operation of the plant as a whole.

Concerning the work done by defendant’s employees on these various jobs, we can say, in the language of Mr. Justice Frankfurter in Kirschbaum v. Wailing, 316 U.S. 517, 525, 62 S.Ct. 1116, 1121, 86 L.Ed. 1638: “* * * In our judgment, the work of the employees in these cases had such a close and immediate tie with the process of production for commerce, and was therefore so much an essential part of it, that the employees are to be regarded as engaged in an occupation 'necessary to the production of goods for commerce.’ ”

In this case, it was settled that maintenance employees engaged in supplying heat, light and water, and maintaining a safe and habitable building, were covered by the Act.

In Walton v. Southern Package Corporation, 320 U.S. 540, 64 S.Ct. 320, 88 L.Ed. 298, it was held that the Act applied to a watchman whose duty was to aid in protecting a building, machinery, and equipment from injury or destruction by fire.

In Bowie v. Gonzalez, 1 Cir., 117 F.2d 11, 20, the Circuit Court of Appeals held “dead” season employees who were “engaged in the repair and maintenance of the milling and transportation facilities” of a company engaged in gathering and refining sugar cane, were covered by the Act.

In Consolidated Timber Co. v. Womack, 9 Cir., 132 F.2d 101, 106, the phrase “necessary to the production” was held to embrace cooks in a lumber camp.

In Holland v. Amoskeag Machine Co., D.C., 44 F.Supp. 884, the court held that employees engaged in a machine shop repairing machines for use elsewhere in the production of goods for commerce, and employees producing steam sold to factories for use in heating the building and in the productive processes, were in the coverage of the Act.

In Mid-Continent Pipe Line Co. v. Hargrave, 10 Cir., 129 F.2d 655, 657, the court held that watchmen engaged in guarding pipe lines carrying crude petroleum to a refinery engaged in “production of goods for commerce”, were within the meaning of the Act.

In Bracey v. Luray, 4 Cir., 138 F.2d 8, the court held that employees engaged in sorting and loading scrap-iron which was thereafter sold intra-state to the scrap dealers, who in turn shipped in intra-state to processors producing goods for interstate commerce, were covered by the Act.

We list below the activities of defendant’s employees which we find to be within coverage of the Act:

(1) The repair of the foundation of the steam hammers at the McKees Rocks Works of the Carnegie-Illinois Steel Corporation.

(2) The drainage ditch at the Irwin Works of the Carnegie-Illinois Steel Corporation, which was lined with concrete to improve its usefulness.

(3) The Irwin Works Roadways of the Carnegie-Illinois Steel Corporation.

(4) The Scaife crib-wall built by William B. Scaife Company along the Allegheny River adjacent to the Scaife plant to prevent erosion of the plant-yard.

(5) The Maintenance Office of the Irwin Works of the Carnegie-Illinois Steel Corporation, in which defendant’s employees removed a brick floor and replaced it with a concrete floor.

(6) The Cold Mill foundation of the Carnegie-Illinois Steel Corporation, where defendant’s employees were engaged in filling in an obsolete cold mill so that it could be used for storage and warehouse space.

(7) The William B. Scaife Company sewers where defendant’s employees extended the sewers to shift the outlet downstream below the intake pipe of the plant’s water supply.

(8) The leading platform of the Trafford Works of the Westinghouse Electric & Manufacturing Company, where defendant’s employees tore out an existing loading platform and constructed a concrete platform.

(9) At the Irwin Works of the Carnegie-Ulinois Steel Corporation, where the defendant’s employees constructed foundations for relocating a down tilter, which was used in the production of steel.

(10) The annealing furnace bases at the Irwin Works of the Carnegie-Illinois Steel Corporation, which defendant’s employees constructed.

(11) East Pittsburgh Turtle Creek Road, which was graded by defendant’s employees so that it could be used as a roadway by trucks for the transportation of goods in process of production for commerce.

(12) Acid disposal facilities at the Irwin Works of the Carnegie-Illinois Steel Corporation. Defendant’s employees constructed a concrete trench for waste acids.

(13) Electrolytic tinning plant at the Irwin Works of the Carnegie-Illinois Steel Corporation. Defendant’s employees built the floor and foundation which was a part of an existing establishment producing goods for interstate commerce.

(14) Plate shearing line at the Irwin Works of the Carnegie-Illinois Steel Corporation. Defendant’s employees built the concrete foundation for this shearing line.

(15) Weigh and traffic office at the Irwin Works of the Carnegie-Illinois Steel Corporation, for which defendant’s employees built the foundation. This construction was so intimately bound up with the production processes that it could not be carried on without it, and therefore within the coverage of the Act.

(16) Tin Plate Building Extension — Gas Cleaner Leantos. Defendant’s employees constructed the foundations at the Irwin Works of the Carnegie-Illinois Steel Corporation. Both structures were necessary for the operation of the Works, and physically and functionally bound up therewith.

VI.

Under two separate contracts, defendant’s employees loaded into railroad cars, iron ore and limestone at Cranes-ville, Pennsylvania, and Gaseóla, Pennsylvania. These products had been previously stored at these points by the Carnegie-Illinois Steel Corporation. After they had been loaded by defendant’s employees, they were transported to the Carnegie-Illinois Steel Corporation’s plant at Pittsburgh, where they were processed into iron and steel products. “Goods” as defined by the Act, include “any part or ingredient thereof” Sec. 3(i), and “handling” is by express terms included in production; Sec. 3(j). We are of the opinion that this work was clearly within the coverage of the Act. Bracey v. Luray, 4 Cir., 138 F.2d 8.

Generally, in regard to all of the activities of the defendant involved in the case, defendant seeks to draw a distinction between repair and reconstruction of existing facilities, and new construction, contending that new constructions are not covered by the Act. It bases this contention on the ruling of the Supreme Court in the cases involving an interpretation of the Federal Employers’ Liability Act, 34 Stat. 232, as re-enacted and changed by the act of April 22, 1908, 35 . Stat. 65; 45 U.S.C.A. § 51, that the Congress could constitutionally regulate only employees engaged in “transportation”. The Employers’ Liabilities Cases, 207 U.S. 463, 28 S.Ct. 141, 52 L.Ed. 297; New York, N. H. & Hartford R. Co. v. Bezue, 284 U.S. 415, 52 S.Ct. 205, 76 L.Ed. 370, 77 A.L.R. 1370. However, in a later case, Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 563, 57 S.Ct. 592, 81 L.Ed. 789, the Supreme Court held that The Employers’ Liabilities Cases, supra, was not controlling as to the power of Congress to regulate labor in railroad-repair shops, and that such laborers came within the scope of the Act. In connection with the consideration of the cases holding that The Employers’ Liability Act applies only to transportation, it may be noted that the Act was amended in 1939, 45 U.S.C.A. § 51, so that it now applies to any employee “any part of whose duties * * * shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and sul. ‘.antially, affect such commerce * *

We therefore conclude that the rulings of the Supreme Court upon the Federal Employers’ Liability Act furnish us no guide to aid us in the determination of the proper application of the Fair Labor Standards Act.

We are of the opinion that under this Act, there is no distinction between maintenance of existing facilities of commerce, and improvement or extension thereof by new construction. In Warren-Bradshaw Co. v. Hall, 317 U.S. 88, 63 S.Ct. 125, 126, 87 L.Ed. 83, the Supreme Court made no such distinction where oil-well drillers were employed in drilling new oil wells in the Panhandle Oil Field of Texas. That certainly was not repair or maintenance work. The Supreme Court held that they were engaged in a “process or occupation necessary to the production” of oil, some of which ultimately found its way, when produced, into interstate commerce, and were therefore within the provisions of Section 3(j) of the Act.

Our conclusion is therefore on the whole of the transactions involved in this case that the plaintiff is entitled to an injunction, as prayed for.

Our findings of fact and conclusions of law are filed herewith. An order for judgment in accordance therewith may be submitted on notice to opposing counsel.


author: DE VANE, District Judge.

text:
    GROTE et al. v. BECKER et al.
    No. 927.
    District Court, S. D. Florida, Miami Division.
    April 23, 1945.
    Riley & Dressier, of Miami, Fla., for plaintiffs.
    L. J. Cushman, of Miami, Fa., for defendant.
   DE VANE, District Judge.

This case is submitted to the court on stipulation of the facts and presents a single question — the right of the plaintiff to collaterally attack and impeach the validity of a final decree of divorce entered by a court of competent jurisdiction in the State of Texas.

It is stipulated by the parties that on March 27, 1942, Donn Charles Grote enlisted in the armed services of the United States and while in the military service applied for and there was issued to him, effective May 20, 1942, a contract of insurance by the National Service Insurance, Certificate No. N-6057302, in the amount of $10,000. His Mother, Erma Amelia Grote, was named beneficiary in the policy of insurance.

On June 14, 1943, the said Donn Charles Grote married the defendant, who is sued in this case under her maiden name, Lorraine Violet Becker, at Del Rio, Texas, and they, thereafter, lived together as husband and wife until the death of the said Donn Charles Grote on August 25, 1943. On August 7, 1943, on an appropriate form therefor, and filed with the Veterans’ Administration August 11, 1943, the said Donn Charles Grote designated Lorraine Violet Grote, defendant herein, and his wife, as beneficiary of said policy. While the policy was in full force and effect the said Donn Charles Grote died in the line of duty on August 25, 1943, and the principal sum of said policy became payable in the manner therein stipulated, to the lawful beneficiary entitled to receive the same. Both parties to this suit have made claims upon the United States Veterans’ Administration for the amount due under the policy of insurance. The plaintiff in this case alleges that the defendant was, prior to her marriage to the said Donn Charles Grote, the legal wife of one Edward James Lewis, a resident of Texas, and that on April 20, 1943, she filed suit against the said Edward James Lewis, in Bexar County, Texas; that on June 9, 1943, a final decree of divorce was granted to her, dissolving her marital relations and restoring her maiden name.

Plaintiff further alleges that the divorce proceedings brought by the defendant are void and the final decree entered in said suit is ineffectual in that the defendant herein — plaintiff in the divorce suit filed in Bexar County, Texas, — was not a bona fide resident of Texas for one (1) year, and of Bexar County for six (6) months prior to April 20, 1943, when said divorce suit was filed, and that said period of residence for one (1) year in the State of Texas, prior to the filing of a Divorce action, was a jurisdictional requirement under the statutes of the State of Texas. The further allegations are made by the plaintiff, herein, that the marriage of the defendant to the decedent, Donn Charles Grote, on or about June 14, 1943, was null and void and that, therefore, the attempted change of beneficiaries of the insurance was void and ineffectual as against the plaintiff in this case. Certified copies of the petition for divorce, the waiver of the defendant in the divorce suit, and the final decree of divorce are attached to the stipulation.

The final decree of divorce recites that the court, from an inspection of the records and from the evidence, finds that the plaintiff in the divorce proceedings “is and has been an actual bona fide inhabitant of the State of Texas for a period of more than twelve (12) months next preceding the filing of plaintiff’s petition herein, and also has resided in Bexar County, for more than six (6) months next preceding the filing of this suit.”

The petition in this case contains no allegation of fact upon which plaintiff bases her claim that the defendant was not a bona fide resident of Texas for more than twelve months, and of Bexar County for more than six (6) months prior to the filing of her divorce suit in that State. And during the argument, counsel for plaintiff frankly admitted that plaintiff in this suit was not possessed of facts that would justify the allegation that the defendant here — plaintiff in the divorce proceedings — had perpetrated a fraud upon the Texas court. He frankly stated that by the general allegation contained in the complaint filed in this case — that the defendant was not a bona fide resident of the State of Texas for twelve (12) months and of Bexar County for six (6) months prior to the institution of the divorce proceedings — the court would, by way of discovery, ascertain the truth of the allegation.

Counsel for the defendant relies upon a line of Texas decisions to the effect that twelve months’ residence in the State and six months’ residence in any particular county of the State is not jurisdictional in divorce actions in Texas. See: Aucutt v. Aucutt, 1933, 122 Tex. 518, 62 S.W.2d 77, 89 A.L.R. 1198; Prendergast v. Prendergast, 1938, Tex.Civ.App., 122 S.W.2d 710; Ex parte Scott, 1939, 133 Tex. 1, 123 S.W.2d 306; Kent v. Kent, 1940, Tex.Civ.App., 143 S.W.2d 159; Tucker v. State, 1941, 141 Tex.Cr.R. 428, 148 S.W.2d 1111; Therwhanger v. Therwhanger, 1943, Tex.Civ.App., 175 S.W.2d 704.

The court holds that in a suit of this character the validity of a divorce decree may be attacked collaterally, if the complaint attacking the same sets out facts which, if proven true, would constitute a fraud upon the State court granting the divorce, but in the absence of such allegations of fact, this court will not inquire into the validity of the final decree of divorce granted by the State of Texas court.

Plaintiff is therefore not entitled to the relief sought in this petition. Findings of fact and conclusions of law in line with this memorandum opinion will be filed, and final judgment will be entered for the defendant on her cross-complaint filed in this case.


author: GIBSON, District Judge.

text:
    WHITEHEAD v. ATLANTIC LIFE INS. CO. et al.
    Civ. A. No. 2903.
    District Court, W. D. Pennsylvania
    April 19, 1945.
    Max V. Schoonmaker and Valera Grapp, both of Pittsburgh, Pa., and Maurice J. O’Sullivan, of Kansas City, Mo., for plaintiff.
    Smith, Buchanan & Ingersoll, Allen T. C. Gordon, and William Booth, all of Pittsburgh, Pa., for defendants.
   GIBSON, District Judge.

Each defendant has moved to dismiss the complaint for lack of jurisdiction, improper venue, insufficiency of process and insufficiency of service of process under Federal Rules of Civil Procedure, rule 12(b), 28 U.S.C.A. following section 723c. For that purpose the defendants have specially appeared.

The Atlantic Life Insurance Company is a corporation of the State of Virginia and the Bankers National Life Insurance Company is a corporation of New Jersey. The complainant is a resident of Missouri.

Neither of the defendants has an office of its own within the State of Pennsylvania, but each has issued some policies of insurance from its home office pursuant to requests from independent insurance agents in the state. Each, pursuant to the requirements of the Pennsylvania Insurance Law, has appointed the Insurance Commissioner its agent upon whom all process against the Company may be served, and upon such appointment the plaintiff relies as determining the sufficiency of the venue in the instant case. The defendants, on the other hand, contend that the facts alleged in the complaint established neither jurisdiction nor proper venue in this court.

The instant action is based upon an alleged infringement of plaintiff’s copyright. The plaintiff, as stated, is a citizen and resident of Missouri, and of the defendants, one is a corporation of Virginia and the other of New Jersey. Thus we have an action brought in the Western District of Pennsylvania by a nonresident of the District against other nonresidents, and in which the complaint fails to state that any infringement of the copyright occurred in this District or in Pennsylvania.

The status of the action depends upon the scope to be given the insurance law of Pennsylvania which requires all foreign insurance companies desiring to conduct any part of their business in the state to appoint the Insurance Commissioner as their agent to accept service of process upon them. If, after an insurance company has authorized the Commissioner to accept service of process in its behalf, that authorization enables any nonresident of the District to bring an action in the Federal Court against it, upon a cause of action not connected with the insurance business of the defendant and not alleged to have occurred in the District or in Pennsylvania, then no question can exist as to the propriety of alleging venue in this District. This court, however, finds itself unable to agree with this proposition.

The Pennsylvania Insurance Act, by requiring the appointment of the Insurance Commissioner to accept service on behalf of the insurance company, was designed to protect residents of the state in their dealings with the company, but could not have the effect of widening federal jurisdiction. True, it has been held that a federal court in a state having such a statute is a court of the state and the act applies to service of process in that court. But it cannot be held to apply to a federal case, in the face of objection to the venue, where none of the causes of action arose in the state or belonged to its resident, and in which the general jurisdiction of the subject matter was wholly in United States Courts. The instant case is one in which a state court would not have jurisdiction even with consent of the defendants. The basis of the action is a law of the United States.

Attention has been called to Neirbo Co. v. Bethlehem Shipbuilding Corporation, 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437, and Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4, 60 S.Ct. 215, 84 L.Ed. 537. An examination of those cases will disclose that both were based upon diversity of citizenship. In the Neirbo case the opinion stated [308 U.S. 165, 60 S.Ct. 156] : “Since the corporation had consented to be sued in the courts of the state, this Court held that the consent extended to the federal courts sitting in that state. As to diversity cases, Congress has given the federal courts ‘cognisance, concurrent with the courts of the several States! ” (Our italics.) In the same case is quoted from opinion of Judge Cardozo in Bagdon v. Philadelphia & Reading Coal & Iron Co., 217 N.Y. 432, 111 N.E. 1075, L.R.A.1916F, 407, Ann.Cas.1918A, 389, the following: “It (appointment of officer to accept service) does not enlarge or diminish jurisdiction of the subject-matter. It means that, whenever jurisdiction of the subject-matter is present, service on the agent shall give jurisdiction of the person.”

In both the Neirbo case and Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., supra, it will appear that the causes of action arose in the state of trial. In the last-mentioned case it is specifically stated that the suit was “upon causes of action arising in that state.” [309 U.S. 4, 60 S.Ct. 217.]

The statutory authority for the appointment of the Insurance Commissioner as -agent by foreign insurance companies is found in the Act of May 17, 1921, P.L. 682, Article III, § 301, clause (c), 40 P.S. § 421(c) which reads, in part, as follows: “(c) It shall, by a duly executed instrument filed in his office, constitute and appoint the Insurance Commissioner or his successor its true and lawful attorney, upon whom all lawful processes in any action * * * may be served; * * * and that the authority thereof shall continue in force irrevocable so long as any liability of the company remains outstanding in this Commonwealth.”

The wording of this clause would seem to make it plain that it was designed to take care of the interests of residents of Pennsylvania, and contemplated no action where others were interested or where jurisdiction was lacking in any Pennsylvania court.

The appointment of an agent to accept service is for the purpose of securing local jurisdiction in respect of business transacted within the state. Mitchell Furniture Co. v. Selden Breck Const. Co., 257 U.S. 213, 42 S.Ct. 84, 66 L.Ed. 201; Missouri Pacific R. Co. v. Clarendon Boat Oar Co., 257 U.S. 533, 42 S.Ct. 210, 66 L.Ed. 354; Morris & Co. v. Skandinavia Ins. Co., 279 U.S. 405, 49 S.Ct. 360, 73 L.Ed. 762. See also Dehne v. Hillman Investment Co., 3 Cir., 1940, 110 F.2d 456, 458; Steinberg v. Aetna Fire Ins. Co., D.C., 1943, 50 F.Supp. 438, 439; Glazier v. Van Sant, D.C., 1940, 33 F.Supp. 113.


author: BYERS, District Judge.

text:
    JAMES McWILLIAMS BLUE LINE, Inc., v. THE PROSPECT II THE BLUE JACKET. THE PROSPECT II
    No. A-17123.
    District Court, E. D. New York.
    April 30, 1945.
    Mahar & Mason, of New York City (Frank C. Mason, of New York City, of counsel), for libelant.
    Purdy & Lamb, of New York City (Edmund F. Lamb, of New York City, of counsel), for claimant.
   BYERS, District Judge.

There was a collision on January 10, 1944, in the Arthur Kill, about a half mile south of Tremley Point on the New Jersey side. The libelant’s wooden barge Blue Jacket, being loaded and the hawser vessel in a two-barge tow to the libelant’s tug Republic No. 5 that was proceeding up the Kill, favoring the Staten Island side, and when about abreast of the mouth of the Rahway River, was struck by the steel barge Cape Clarence, which was light and being towed, stern foremost, by the Diesel tug Prospect II, which had the barge on the tug’s port hand; the stern of the tug was about 10 feet aft of the rear end of the barge.

There is no criticism of the make-up of either tow, nor are the material facts in dispute.

The collision occurred at about 2:45 p. m., and there was an ebb tide flowing down the Kill, and the wind was blowing out of the northwest, of an average hourly force of about 22 miles.

There were two barges, both loaded, in the upbound tow, which means that the freeboard of those vessels was low. It will be seen that this tow was affected only by the tide, while the Cape Clarence, being light, had the tide underfoot, and was receiving the force of the wind on her high side nearest the Staten Island shore. Also that the captain of the Prospect II had to navigate without being able to observe anything except what he could see dead ahead and to his starboard side, since his entire view to port was shut off; this means that he had to rely on navigating signals from the deckhand on the Cape Clarence.

The vessels came into mutual sight as the downbound tow rounded Tremley Point, and Loud, the mate on the Republic No. 5, who was in charge of navigation, at once blew a one-blast signal to indicate a port passing, and he did not hear an acceptance, although all witnesses called for the Prospect II assert that the signal was accepted by a one-blast whistle signal.

The channel is about 375 feet wide, and there was ample room for these tows to pass safely, and the Cape Clarence passed the Republic No. 5 with a clearance of about 20 feet, but her course was then toward the New Jersey shore, for the Prospect II was under a starboard helm at that time, which caused the after end of the Cape Clarence to approach so close to the Blue Jacket as to strike the latter near her port bow; that is to say, between the bow cleat and the quarter cleat on the port side forward, causing the damage in suit.

The Findings are:

(1) Ownership and operation of all vessels involved were conceded and are found to be in accordance with the pleadings.

(2) The libelant’s Diesel tug Republic No. 5 (87 feet by 20.1 feet by 9.9 feet inside depth, with 500 horse power) was proceeding in a northerly direction through Arthur Kill on January 10, 1944, having in tandem tow the libelant’s wooden barge Blue Jacket, loaded (116.3 feet by 31.2 feet by 13.4 feet inside depth) and drawing 11% feet of water, and close coupled, libelant’s wooden barge Blue Comet (112 feet by 29 feet by 14.8 feet inside depth), drawing 11% feet of water, also loaded, on a bridle hawser about 200 feet long, leaving a space between the tug and the hawser barge of about 180 feet. This tow moved at a speed of 2% miles per hour over the ground.

(3) The claimant’s Diesel tug Prospect II (63.5 feet by 18.8 feet by 8 feet inside depth, with 375 horse power) was proceeding in a southerly direction through the Arthur Kill at the same time, having on her port side the steel barge Cape Clarence, which was light, stern first (133.9 feet by 34 feet by 15.5 feet inside depth). This tow, being light, and having the tide underfoot, made 4% miles per hour over the ground.

(4) As the latter tow was made up, the navigator of its tug was unable to see except directly ahead from his pilot-house and on his starboard side, since the cabin on the Cape Clarence rises 8 feet above the deck and is 22 feet wide and measures 8 feet fore and aft, and the coaming is 4.9 feet above the deck; the height of the sides of the Cape Clarence at the stem was 18.6 feet, which was increased by the 8-foot height of the cabin; the height of the sides amidships was 17 feet, and the Cape Clarence drew 20 inches when light.

(5) The top of the pilot-house of the Prospect II was not more than 15% feet above the water-line.

(6) The stem of the tug Prospect II was about 80 feet aft of the forward end of the Cape Clarence as the latter was being towed.

(7) There was an ebb tide running southerly through Arthur Kill, and a northwest wind prevailed, of an average hourly force of 22 miles; visibility was good, and the temperature was about 34° Fahrenheit.

(8) No other navigation affected either tow.

(9) As the southbound tow rounded Tremíey Point it was observed by the navigator of the Republic No. 5 when his tug was about a half mile below that place, and he at once blew a one-whistle signal to indicate a port passing.

(10) That signal was accepted by the Prospect II which also blew a one-whistle signal, which was not heard, however, on the Republic No. 5.

(11) Both tows were navigated upon the understanding that they were to pass port to port.

(12) No further signals were exchanged between the towing vessels, nor was an alarm blown by either.

(13) When about off the mouth of the Rahway River the after corner of the Cape Clarence, as she was being towed, struck the port side of the Blue Jacket.

(14) Both barges in the upbound tow at the time of the collision were somewhat westerly of the center line of the channel; that is to say, they tended to favor the Staten Island side, by reason in part of the force of the tide running out of the Rahway River, which tended to set on the Staten Island side of the Kill.

(15) The descending tow did not continue to navigate in accordance with her own acceptance of a port to port passing.

Conclusion

The libelant is entitled to the usual decree appointing a Commissioner to assess damages.

It will be seen that these tows, once having come into mutual sight, were traveling at a combined speed of about seven miles an hour, which means that not to exceed 4% minutes elapsed between the one-whistle signal blown by the Republic No. 5, and the collision; this interval apparently afforded the descending tow too little time for her navigator to correctly calculate the effect of the northwest wind upon the high sides of the Cape Clarence, which tended to hold her off from the New Jersey shore.

The testimony is convincing that Jensen, who was acting as deckhand on the Cape Clarence, undertook to direct the navigation of the tow .from the forward end of his vessel throughout the trip which had started that morning at 96th Street and East River, and which was to end at South Amboy; he had held a license since 1937, and seemed to be a responsible person; off Tremley Point, when he was in his cabin, he observed the ascending tow and at once went out to the deck and made appropriate signals to Olsen, the captain of his towing vessel, to indicate a one-whistle signal, which Olsen blew; and then a right turn, which Olsen executed. Jensen expected a starboard passing because the upbound tow was bucking the tide, but he promptly adjusted himself to a port passing by directing the acceptance of the one-whistle signal.

As the tows approached, Jensen again signaled for a right rudder, and that was obeyed, but soon the tows were so close that Jensen realized that a left rudder was necessary in order to throw the stern of the Cape Clarence closer to the New Jersey shore, and he gave such a signal, which was also obeyed, but by then it was too late to avoid the contact to which reference has been made.

The tows continued on their respective ways, and it should be noted that Loud, the navigator of the Republic No. 5, said that the Cape Clarence not only struck the Blue Jacket but also the bridle with such fo-ce that, after the ascending tow had proceeded about four miles, the hawser parted at the bridle.

The fault to be attributed to the Prospect II lay in making too wide a turn at Tremley Point to enable her tow to carry out the port passing, and perhaps this is to be explained by Jensen’s early expectation that there would be a starboard passing.

Loud, the navigator of the Republic No. 5, is to be criticised for not having repeated his one-blast signal when he says he received no answer from the Prospect II, and perhaps for not blowing an alarm; but that fault cannot be said to have contributed to the collision, since Jensen’s testimony makes it clear that, once the port passing was accepted, the descending tow navigated upon that agreement, and therefore a repetition of the one-blast would not have emphasized the understanding which Jensen already possessed when he directed Olsen to accept the initial one-blast signal.

It is obvious that the risk of navigating a tow consisting of such a light steel barge as this, and made up so that the master of the tug has only half or less of a field of vision, is a heavy one, and entails such a responsibility as can be discharged only by the most careful and alert attention of those in control. Cf. Martin Marine Transp. Co., Inc., v. Jakobson & Peterson, Inc. (The Republic No. 5), 2 Cir., 135 F.2d 325.

The offending tug relies mainly upon the argument that when the tows came into mutual sight the ascending one must have been inclining closer to the New Jersey side than her testimony discloses, since it is customary for such a tow to thus avoid the full effect of the ebb tide; if that be granted, then it is argued that she was not in her own side of the channel when the collision occurred, and fault must be attributed to the towing vessel Republic No. 5 for that result.

I do not so appraise the testimony. It is true that the collision should never have taken place, for there was ample space in which to effect a port passing. Also it may be true that the Republic No. 5 was not as close to the Staten Island side of the fairway as possible, and I doubt if Buoy No. 6 was much out of position, if at all, when this collision took place. However, the evidence is persuasive that the upbound tow at the time of the collision was completely in her own side of the channel, which means that contact would not have occurred if the same were true of the Prospect II and her tow.

Usual decree for libelant to be settled.


text:
    SHEPLER et al. v. CRUCIBLE FUEL CO. OF AMERICA et al.
    No. 1957.
    District Court, W. D. Pennsylvania.
    Feb. 3, 1943.
    Schlesinger & Schlesinger, of Pittsburgh, Pa., for plaintiffs.
    Jno. C. Bane, Jr., Nicholas Unkovic, and Reed, Smith, Shaw & McClay, all of Pittsburgh, Pa., for defendants.
   SCHOONMAKER, District Judge.

This is an action filed in this court under the Fair Labor Standards Act of June 25, 1938, 29 U.S.C.A. § 201 et seq., for the recovery by plaintiffs from the defendants of compensation for alleged overtime in the course of their employment as watchmen over defendant Crucible Fuel Company’s property at Singer’s Landing, which was a floating barge located on the Ohio River in Pittsburgh; Shepler being employed as night watchman, and Rice as day landing man. Their employment began in the spring or summer of 1937, and ended May 1, 1942, when the Landing was discontinued by the defendant, Crucible Fuel Company.

At the trial, counsel for the defendant Crucible Steel Company of America moved to dismiss the complaint as to that company, and counsel for the plaintiffs offered no objection thereto. It was thereupon directed that the complaint be dismissed as to that company, and the trial proceeded as to the Crucible Fuel Company.

The question at issue is whether or not the Fair Labor Standards Act should be applied in determining the wages to which these plaintiffs would be entitled from the defendant, Crucible Fuel Company.

By Section 6 of the Act, the prescribed minimum wages must be paid to each employee “who is engaged in commerce or in the production of goods for commerce.” By Section 7, overtime compensation must be paid to such employees. Section 3(j) of the Act provides 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.”

The Crucible Fuel Company is engaged in the business of mining coal. It owns a mine at Crucible on the Monongahela River in Greene County, Pennsylvania; and from that point ships its mined coal in its own barges to three steel plants of the Crucible Steel Company located on the banks of the Monongahela and Ohio Rivers. These coal barges are towed to the steel plants by two tow steamboats owned and operated by the defendant Crucible Fuel Company. In the course of these towing operations, Crucible Fuel Company maintained a floating dock or landing on the Ohio River, known as “Singer’s Landing”, consisting of icebreakers, two flat boats — (a fuel flat and a mooring flat), a house-boat and a pump-boat, — all moored to the ice-breakers.

Defendant Crucible Fuel Company used this landing as a temporary mooring for its barges, both loaded and empty, when the convenience of said Fuel Company made it desirable or necessary to leave barges there. This landing was also used by the other river-boat owners and operators for the same purpose, without charge therefor, in accordance with an established river custom. Among such operators was the Hillman Transportation Company which moved barges between October 24, 1938, and April 28, 1940, some of which were loaded with coal en route to interstate transportation.

Plaintiff Shepler was night-landing man in charge of this landing from 6 P. M. to 6 A. M. His duties were to protect the equipment comprising the landing, and all craft moored there, from trespass and injury. He was required to inspect all moored barges at hourly intervals and to pump out any excess of water accumulated in any barge, to see that lights required by law were kept burning. He was also required to keep a log-book of occurrences at the landing. Plaintiff Rice had the same duties each day from 6 A. M. to 6 P. M.

The coal mined by the Fuel Company does not itself pass into interstate commerce. It is mined in Pennsylvania and delivered in Pennsylvania to the Crucible Steel Company, which transforms it at its steel mills into coke and in that form is used by the Crucible Steel Company to charge its furnaces in the process of manufacturing iron and steel, which products are sold and delivered by the Steel Company in interstate commerce. Practically all of the capital stock of the Fuel Company is owned by the Crucible Steel Company.

On these facts it is our view that plaintiffs were engaged in occupations “necessary to the production” of iron and steel which go into interstate commerce. Without fuel the furnaces of the Steel Company could not operate at all. The fact that the Steel Company uses as a medium for getting that fuel to its furnaces a wholly-owned and controlled subsidiary corporation, the Crucible Fuel Company, does not withdraw the employees of that subsidiary corporation from the provisions of the Fair Labor Standards Act. Those engaged in the mining of coal and transporting it from the mines to the furnaces are engaged in an occupation “necessary to the production of goods for commerce.” Whether they work for the Steel Company directly, or for a wholly-owned subsidiary, ' can make no difference, because without fuel you cannot operate a furnace in a steel mill.

In our opinion, this case falls squarely within the ruling of the Supreme Court in Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, holding that employees of an owner of a building who were engaged in its maintenance and operation, were engaged in an “occupation necessary to the production” in interstate commerce, where the tenants of the building were engaged principally in the production of goods for interstate commerce. In the instant case, I would say the necessity is much stronger than in Kirschbaum Co. v. Walling, supra, because you cannot make steel at all without heat in the furnaces; and the Fuel Company is owned by the Steel Company.

We therefore conclude that the Fair Labor Standards Act of 1938 is applicable to plaintiffs as employees of defendant Fuel Company.

In arriving at this conclusion, we attach no significance to the fact that barges of coal belonging to other companies, and destined to go into interstate commerce, were occasionally tied up to defendant Fuel Company’s landing without charge.

It next remains to be determined whether by applying the Fair Labor Standards Act to the facts of this case, the plaintiffs are entitled to any recovery. This Act was enacted June 25, 1938, and went into effect one hundred and twenty days from the date of its enactment, or on October 24, 1938. From the summer of 1937 until December 1, 1938, plaintiffs were paid monthly salaries; Rice receiving $200 per month, and Shepler, $190 per month.

Late in November 1938, defendant Crucible Fuel Company concluded that in order to comply with the Fair Labor Standards Act, the wages of the plaintiffs should be computed and paid on an hourly basis. Accordingly from December 1, 1938, until May 1, 1942, when this landing was discontinued and these plaintiffs were dismissed, their wages were computed on an hourly basis for a forty-hour week, with time and one-half for all hours over forty hours in each week. The hours worked by each plaintiff were recorded in a time-book signed by each plaintiff weekly. The rate per hour was fixed for Shepler at 460 for the first forty hours of each work week, and 690 per hour for all hours worked over forty hours each week. The rate fixed for Rice was 48.40 per hour for the first forty hours of each work week, and 72.60 per hour for all hours worked over forty hours each week. Beginning April 1, 1941, seamen employed on river craft in the Pittsburgh district were given a wage increase of 800 per day. Accordingly the wages of plaintiffs were increased by adding 60 per hour to the ordinary hourly rate of each man, and 90 per hour on the overtime rate. The daily work-day was fixed at eleven hours per day; and from January 1, 1942, to May 1, 1942, when the landing was discontinued, each man was permitted to be absent from work on one day per week, but was paid as though he worked the usual eleven hours that day.

At the time the change was made from the monthly rate basis of pay to the hourly basis, the plaintiffs were told by Ritts, who had charge of the River Transportation of the Fuel Company, that in order to comply with the Fair Labor Standards Act, the Company must transfer them from monthly to hourly wage rates on the basis of eleven hours per day on a seven-day week basis; that if that arrangement was not satisfactory to them, it would be necessary for the Fuel Company to add at least one man, and possibly two additional men, to work at this landing, which would result in a decrease of the hourly pay for time and over-time. The plaintiffs objected to additional men, and stated they preferred to work their established schedule of hours at the new hourly rates.

On these facts we are of the opinion that defendant Fuel Company has discharged its obligations to the plaintiffs under the Fair Labor Standards Act, and that the plaintiffs can recover nothing in this case. Under the Fair Labor Standards Act, the parties may legally agree upon the regular rate to be paid by the employer to the employee, so long as that rate equals, or exceeds, the minimum required by the Act. See Walling v. A. H. Belo Corporation, 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716.

That is just what the parties did in the instant case. They agreed upon an hourly rate on the basis of a forty-hour week, at a rate which exceeded the minimum required by the Act, and agreed upon time and a half for all work beyond the forty-hour week period. True it is that both plaintiffs testified that they did not agree to the new hourly rate. But from all the evidence in the case, we must find that they did agree to it. In fact, by continuing to work under the new arrangement, a new contract was created. See Williams v. Jacksonville Terminal Co. 315 U.S. 386, 62 S.Ct. 659, 86 L.Ed. 914.

And finally, as to plaintiffs’ claim for an extra hour’s wages covering their luncheon periods, we find no merit in this contention. Certainly, a claim for wages for that period is not a claim for wages under the Fair Labor Standards Act, as we find no provision therein for payment of wages for a luncheon period.

Our findings of fact and conclusions of law are filed herewith. An order for judgment dismissing the complaint may be submitted on notice to opposing counsel.