148 F.2d 57 (3rd Cir. 1945), 8443, Walling v. News Printing Co., Inc.

Docket Nº:8443.
Citation:148 F.2d 57
Party Name:WALLING, Adm'r, Wage and Hour Division, U.S. Dept. of Labor, v. NEWS PRINTING CO., Inc.
Case Date:March 05, 1945
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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148 F.2d 57 (3rd Cir. 1945)

WALLING, Adm'r, Wage and Hour Division, U.S. Dept. of Labor,

v.

NEWS PRINTING CO., Inc.

No. 8443.

United States Court of Appeals, Third Circuit.

March 5, 1945

Argued Dec. 22, 1943.

Bessie Margolin, of Washington, D.C. (Douglas B. Maggs, Sol., of Washington, D.C., John K. Carroll, Regional Atty., of New York City, and Morton Liftin and Joseph I. Nachman, Attys., both of Washington, D.C., United States Department of Labor, on the brief), for appellant.

Elisha Hanson, of Washington, D.C., and David L. Cole, of Paterson, N.J. (Cole & Morrill, of Paterson, N.J., on the brief), for respondent.

Before BIGGS, GOODRICH, and McLAUGHLIN, Circuit Judges.

BIGGS, Circuit Judge.

The Administrator of the Wage and Hour Division, United States Department of Labor, petitioned the court below to enforce a subpoena duces tecum pursuant to the provisions of Section 9 of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 209, to compel the respondent, News Printing Company, Inc., to produce the books, records and documents described in the subpoena before the Administrator or his representatives at Newark, New Jersey. The records sought to be examined relate to the wages paid to the respondent's employees, the hours of work, and the sale or transportation of newspapers, books, periodicals or goods shipped by the respondent in interstate commerce. The respondent would not permit an examination of its

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records by agents of the Administrator and refused to obey the subpoena. Consequently the Administrator filed a petition to the court below seeking an order directing the respondent to produce the records covered by the subpoena at such time and place as the court should direct. The petition alleged upon information and belief that respondent was engaged in interstate commerce within the meaning of the Act and was violating Sections 6, 7, 11(c), and 15(a)(1)(2)(5) of the Act, 29 U.S.C.A. §§ 206, 207, 211(c), and 215(a)(1), (2, 5).

A rule to show cause was issued and the respondent filed a return and answer asserting that it was not within the purview of the Act, that to require it to produce the records specified in the subpoena would constitute a violation of the rights guaranteed to it by the First, Fourth and Fifth Amendments of the Constitution of the United States. The respondent's answer asserted also that it was exempted by the provisions of Section 13(a)(1), 29 U.S.C.A. § 213(a)(1), because it was engaged in 'a bona fide executive, administrative, professional, or local retailing capacity, or in the capacity of outside salesman * * * .' An affidavit, executed by the president of the respondent, alleged that it was engaged in printing and publishing in Paterson, New Jersey, a daily newspaper called the 'Paterson Evening News' with a circulation of more than three thousand copies and that less than 1% of its papers moved in interstate commerce. Other affidavits filed by the respondent, executed by persons who are experts in the newspaper field, state their conclusions as to what will be the effect of the Act on the newspapers of the United States including that of the respondent. They assert that executing the provisions of the Act will destroy the freedom of the press.

The learned District Judge held that the objections to the subpoena based on the Fifth Amendment were without merit. He held also that other objections made by the respondent based on the Fourth Amendment turned on the question of the coverage of the respondent by the Act. The court thereupon discharged the rule, stating that since the Administrator had not had the opportunity 'sufficiently to argue the question of coverage', the matter was left open for further proceedings. See 49 F.Supp. 659, 661.

The administrator has appealed. The appeal was taken in accordance with the procedure established by the Rules of Civil Procedure, 28 U.S.C.A.following Section 723c, and also in accordance with the former appellate practice. The appellant has stated that it would be helpful if we would designate which manner of taking the appeal was correct. We think that it was the intent of the framers of Rule 18 to provide that the new and improved appellate procedure should apply insofar as appropriate to proceedings such as that sub judice. For an analogy based upon the Criminal Appeals Rules see note 2 to the opinion in United States v. White, 322 U.S. 694, 697, 64 S.Ct. 1248. Cf. McCrone v. United States, 307 U.S. 61, 65, 59 S.Ct. 685, 83 L.Ed. 1108. Cf. also Perkins v. Endicott Johnson Corporation, 2 Cir., 128 F.2d 208, 226, 227. There is no question, however, in the case at bar as to whether the appeal was taken properly.

The Administrator contends that the Act requires the enforcement of the subpoena without a determination by the court that the employer is within the coverage of the Act. The respondent takes the position that in the absence of proof by the Administrator...

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