Columbus & G. Ry. Co. v. ADM'R OF WAGE AND HOUR DIV., 9857.

• Decision Date: 28 February 1942
• Docket Number: No. 9857.,9857.
• Citation: 126 F.2d 136
• Parties: COLUMBUS & G. RY. CO. v. ADMINISTRATOR OF WAGE AND HOUR DIVISION, UNITED STATES DEPARTMENT OF LABOR.
• Court: U.S. Court of Appeals — Fifth Circuit

126 F.2d 136 (1942)

COLUMBUS & G. RY. CO. v. ADMINISTRATOR OF WAGE AND HOUR DIVISION, UNITED STATES DEPARTMENT OF LABOR.

No. 9857.

Circuit Court of Appeals, Fifth Circuit.

February 28, 1942.

R. C. Stovall, Gen. Counsel, of Okolona, Miss., Rufus Creekmore, of Jackson, Miss., and Julian J. Willingham, of Augusta, Ga., for petitioner.

Irving J. Levy, Acting Sol., U. S. Department of Labor, William W. Cox, and Louis Sherman, Attys., U. S. Department of Labor, all of Washington, D. C., for respondent.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

By a petition to review and to modify or set aside, in whole or in part, as it affects them, petitioner and intervenor, bring in question, a minimum wage order, dealing with the railroad carrier industry as a whole, classifying it as composed of a trunk, and a short, line division, and establishing a minimum hourly wage of thirty-six cents for the former and of thirty-three for the latter. Of all the carriers involved in the hearing and affected by the order, petitioner and intervenor alone complain of it and ask its modification. Having a gross annual operating revenue of more than $1,000,000 each, and a line of railroads, respectively 167.7 and 399 miles long, petitioner and intervenor were classified in the trunk line division and made subject to the thirty-six cents minimum, with the result of an added annual expense to the Mississippi road of $30,000 and to the Georgia and Florida road of $28,500.

Complainants concede that the constitutionality in general of the act and of the procedure which resulted in the order, have been settled in United States v. Darby, 312 U.S. 100, 657, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430, and in Opp Cotton Mills v. Administrator, of Wage and Hour Division, 5 Cir., 111 F.2d 23; Id., 312 U.S. 126, 657, 61 S.Ct. 524, 85 L.Ed. 624. They attack the order on narrower constitutional and statutory grounds. The statutory grounds are that the provisions of the statute governing industry classification and the determination of the wage rate for each classification were disregarded and therefore the order was invalid as in violation of the statute. The constitutional grounds are that if the statute be construed as authorizing the procedure taken and the result obtained here, then the statute is unconstitutional as depriving complainants of their property without due process in violation of the Fifth Amendment.

The attack upon the order, while vigorously urged as to all the grounds¹ comes to a focus in the attack upon (1) the definition of the industry as unduly restrictive, (2) the classification within the industry as arbitrary and as based upon factors which had no real or substantial relation to the ability of those within the classification to stand the wage rate; (3) the consideration of the economic and competitive conditions in the industry, not independently of but only as affecting curtailment of employment, and (4) the inclusion of complainants in the classification which is subjected to the thirty-six cent rate, both because their particular conditions took them out of the class and because the application of the rate to them will, in violation of the statute, substantially curtail employment on their lines.

The administrator, on his part, flatly insists (1) that the definition of and the classification within, the industry, was natural, reasonable and appropriate; (2) that upon every factor making them up, complainants come within both definition and classification; (3) that it is clear from the statute, as it plainly reads and as it has been interpreted, that the ultimate determination to be made by the administrator, is whether and only whether an increase of the wage rate above thirty cents and not above forty cents per hour, can be made without substantially curtailing employment in the industry; and (4) that economic and competitive conditions are only two of the factors to be considered in arriving at that determination. Meeting complainants' contention that the evidence does not show that employment will not be substantially curtailed on their lines, the administrator insists that the record sufficiently supports his finding that it will not, but that if this is not so this would not affect the validity of the order, for its validity depends not upon its effect upon employment on a particular railroad, but in the industry as a whole; and the evidence is overwhelming, indeed it is not disputed, that employment in the industry as a whole will not be substantially curtailed by the order. To complainants position that the administrator failed to find that the wage rates ordered are necessary for the maintenance of a minimum standard of living of employees affected thereby, the administrator replies, that the statute fixed forty cents per hour as a minimum standard to be attained as soon as possible without curtailing employment and provided that industry committees should consider and report, and the administrator should find, not what would be a rate necessary for the maintenance of a minimum standard of living, for Congress has fixed that standard, but when and to what extent that standard can be reached or approximated without serious curtailment of employment.

Finally, the administrator pointing to the composition and make-up of the industry committee; the voluminous record of evidence taken and considered; the careful hearings had; the sharp differences of opinion in the committee; the thoughtful and detailed report it filed; its careful and thorough consideration and approval by the administrator, as shown by the thoughtful and clear opinion he filed; and finally to the fact that of all the industry affected, only these two roads, and they, in a peculiarly parlous economic condition, have objected to it, insists that as near as is humanly possible, the matter remitted by Congress for consideration, hearing and order, has been carefully, fully and justly, heard and determined.

We agree with the administrator. It is not our province to determine for ourselves whether the definition and classification used by the administrator, were the best possible. Our duty is done when we determine as we must here, that they were legally permissible, having regard to the factors to be considered and the...