49 F.Supp. 659 (D.N.J. 1943), 154, Application of Walling

Docket Nº:N.D. 154.
Citation:49 F.Supp. 659
Party Name:Application of WALLING, Adm'r of Wage and Hour Division, U.S. Dept. of Labor.
Case Date:April 03, 1943
Court:United States District Courts, 3th Circuit, District of New Jersey

Page 659

49 F.Supp. 659 (D.N.J. 1943)

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

N.D. 154.

United States District Court, D. New Jersey.

April 3, 1943

Arthur E. Reyman, of New York City, Regional Atty., U.S. Dept. of Labor, for applicant.

Cole & Morrill, of Paterson, N.J. (Elisha Hanson, of Washington, D.C., of counsel, for respondent.

MEANEY, District Judge

The question to be determined in this case is whether this court should issue an order enforcing the subpoena duces tecum heretofore issued by the Administrator of the Wage and Hour Division of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., pursuant to Section 9 of the said Act. (In this opinion said Administrator shall be referred to as the Administrator, and said Act as the Act.)

The respondent herein is engaged in the business of publishing a newspaper in Paterson, New Jersey, within the jurisdiction of this Court, and refused permission to the agents of the Administrator to inspect its books and records, on the ground that its business was not subject to the provisions of the Act and that its employees were not affected by it.

The purpose of the requested inspection was to examine the records of the respondent to determine the hours worked by and the compensation received by its employees and to seek for possible violations of sections 6, 7, 11(c), 15(a)(2) and 15(a)(5) of the Act.

Upon the refusal of the respondent to permit any inspection of its books or records, the Administrator issued a subpoena duces tecum, requiring the respondent to appear before one of the officers of the Wage & Hour Division, United States Department of Labor and to produce all books and records pertaining to sale, shipment, delivery or transportation by respondent of newspapers, books, periodicals or goods of any character between the same dates.

Page 660

Upon advice of counsel, respondent failed to observe the requirements of the subpoena, whereupon the Administrator filed a petition requesting the issuance by this Court of an order to show cause why an order should not issue directing Respondent to comply with the requirements of the said subpoena. The order to show cause was issued and argument had thereon.

In an examination of the situation before the Court, the first matter that arises for settlement would seem to be whether in a proceeding such as the instant one, the respondent may raise the question of its coverage by the Act.

In its return to the order to show cause, respondent, along with certain objections to the constitutionality of the Act in its attempted application to a newspaper, in effect...

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