Connecticut Importing Co. v. Perkins, 340.

• Decision Date: 04 October 1940
• Docket Number: No. 340.,340.
• Court: U.S. District Court — District of Connecticut
• Parties: CONNECTICUT IMPORTING CO. v. PERKINS, Secretary of Labor, et al.

35 F. Supp. 414

CONNECTICUT IMPORTING CO. v. PERKINS, Secretary of Labor, et al.

No. 340.

District Court, D. Connecticut.

October 4, 1940.

Arthur Klein, of New Haven, Conn., for plaintiff.

George A. McNulty, Gen. Counsel, and Irving J. Levy, Asst. Gen. Counsel, both of Washington, D. C., Walter C. Bryan, Regional Atty., and Irving Rozen, Senior Atty., both of New York City, and Robert P. Butler, U. S. Atty., of Hartford, Conn., for defendants.

HINCKS, District Judge.

This is an action brought by a wholesale liquor dealer for a judgment to determine whether or not its employees are engaged in interstate commerce as defined in the Fair Labor Standards Act of 1938, 29 U.S. C.A. § 201 et seq. The defendants are Madam Perkins, Secretary of Labor, Philip B. Fleming, Administrator of the Wage and Hour Division of the Department of Labor, Cornelius J. Danaher, Commissioner of Labor of the State of Connecticut, and his Deputy, Morgan Mooney, and Robert P. Butler, United States Attorney for the District of Connecticut.

The complaint alleges that the Administrator heretofore issued "Interpretive Bulletin No. 5" wherein he states, inter alia, "It is our opinion that wholesalers purchasing their goods from outside the State (as does the plaintiff here) should comply with the provisions of the Act", and that employees engaged in connection with sales of goods purchased outside the State and shipped direct to customers of the wholesaler within the State and also employees engaged in connection with sales of goods shipped to the wholesaler from without the State after the goods have already been resold to or ordered by customers within the State, are an essential part of the stream of interstate commerce and are included in the phrase "engaged in commerce."

The complaint further alleges that the defendants through their agents have investigated the plaintiff's business and notified the plaintiff that it is engaged in interstate commerce and hence liable for all penalties, etc., provided by the act. The complaint concludes with the allegation that the plaintiff, though not amenable to the act, because of doubt in the premises and "because of the threats made by the defendants through their agents," as just above set forth, is compelled to its injury to comply with the act.

The matter is before the court upon a motion to dismiss.

As to the defendants Perkins and Fleming, the motion must be granted. This the plaintiff concedes because these defendants were never served with process within this District.

I think the motion must be granted also with respect to the defendants Danaher and Mooney. It is true that the act provides expressly, Section 11, 29 U.S.C.A. § 211, that the Administrator may "utilize the services of State and local agencies and their employees." I assume therefore that these defendants may have had legal authority from the Administrator to investigate the plaintiff's business. But I cannot assume that these defendants have any power to prosecute for violations of the act. Section 4 of the Act, 29 U.S.C.A. § 204, provides that "attorneys appointed under this section may appear for and represent the Administrator in any litigation, but all such litigation shall be subject to the direction and control of the Attorney General." Surely it is wholly clear that this provision confers no power or duty upon the attorneys of the Administrator to institute and prosecute criminal prosecutions in the name of the United States. Apparently the brunt of prosecution must rest on the District Attorney as a part of his general duties, 28 U.S.C.A. § 485, except in so far as the Attorney General by...