Davenport Taxi, Inc. v. Labor Com'r

• Decision Date: 18 January 1973
• Citation: 319 A.2d 386,164 Conn. 233
• Court: Connecticut Supreme Court
• Parties: , 20 Wage & Hour Cas. (BNA) 1170, 74 Lab.Cas. P 33,084 DAVENPORT TAXI, INC. v. LABOR COMMISSIONER of the State of Connecticut.

Page 386

319 A.2d 386

164 Conn. 233, 20 Wage & Hour Cas. (BNA) 1170,

74 Lab.Cas. P 33,084

DAVENPORT TAXI, INC. v. LABOR COMMISSIONER of the State of Connecticut.

Supreme Court of Connecticut.

Jan. 18, 1973.

Robert W. Murphy, Asst. Atty. Gen., with whom, on the brief, were Robert k. Killian, Atty. Gen., Carl D. Eisenman, Special Asst. Atty. Gen., and Donald E. Wasik, Asst. Atty. Gen., for appellant (defendant).

Howard C. Kaplan, Stamford, for appellee (plaintiff).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

MacDONALD, Associate Justice.

This is an appeal from a judgment of the Superior Court in an action brought pursuant to the provisions of § 31-8 of the General Statutes where the court set aside an order of the director of the minimum wage division of the Connecticut department of labor. The defendant, the commissioner of labor for the state of Connecticut, assigns as error two conclusions reached by the court: (1) that the plaintiff Davenport Taxi, Inc., was subject to the Federal Fair Labor Standards Act, 52 Stat. 1060 as amended, 29 U.S.C. § 201 et seq. (June 25, 1938), hereinafter called the FLSA, to the exclusion of being subject to the jurisdiction of the defendant; and (2) that the plaintiff was not subject to the provisions of §§ 31-76b-31-76j of the General Statutes without an express finding that the plaintiff came within at least one of the exceptions set forth in § 31-76i. The other assignments of error were not briefed and accordingly are treated as abandoned. State v. Keeler, 164 Conn. 42, 316 A.2d 782; State v. Grayton, 163 Conn. 104, 302 A.2d 246.

' The court made no finding although, ordinarily, one is essential to test the conclusion reached. Practice Book § 609; Wagner v. Zoning Board of Appeals, 153 Conn. 713, 714, 216 A.2d 182; Gitlitz v. Davis, 146 Conn. 280, 281, 150 A.2d 213; Mendrochowicz v. Wolfe, 139 Conn. 506, 509, 95 A.2d 260; Maltbie, Conn.App.Proc. § 126. The . . . (defendant) did not file either a request for a finding or a draft finding. Consequently, no finding was made. The absence of a finding does not necessarily preclude action by this court. We are, however, limited in our inquiry to the material facts which appear on the record. Wooster v. Wm. C. A. Fischer Plumbing & Heating Co., 153 Conn. 700, 703, 220 A.2d 449.' Robertson v. Robertson, 164 Conn. 140, 318 A.2d 106. The record here consists only of the appeal to the Superior Court, and exhibit made part of the record, the answer and the judgment. There is a memorandum of decision but it does not establish facts and cannot take the place of a finding. E.M.J. Corporation v. Zoning Board of Appeals, 154 Conn. 667, 668, 228 A.2d 500; Wagner v. Zoning Board of Appeals, 153 Conn. 713, 714, 216 A.2d 182. We may, however, consult the memorandum for a better understanding of the basis of the court's decision. Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 318 A.2d 84; Murphy v. Murphy, 143 Conn. 600, 602, 124 A.2d 891.

It appears from the record that on April 23, 1969, the director of the minimum wage division of the Connecticut department of labor caused an order to be served on the plaintiff directing it to pay the sum of $3630.50 for overtime pay for certain employees who had performed services as 'dispatchers' for the plaintiff, a Connecticut corporation operating a taxi business in the city of Stamford pursuant to the authority of the state public utilities commission. The plaintiff appealed to the Superior Court and on November 20, 1970, its appeal was 'sustained for lack of jurisdiction' in the defendant to issue the order in question. The court's memorandum of decision states as the basis of its decision that since 'the character of the work performed by the dispatchers in interstate commerce is substantial, thereby subjecting the employer to the provisions of the . . . (FLSA),' the FLSA precluded the state from applying the state overtime wage law and the director of the minimum wage division, therefore lacked the jurisdiction necessary to order the payment of overtime compensation. The fact that the employees in question actually were engaged in interstate commerce is conceded, but the defendant basically claims that the FLSA is not exclusive in its operation and that the state and federal governments have concurrent jurisdiction over employees subject to the Act so that the state overtime compensation provisions are applicable. The fundamental issue presented in this appeal, therefore, is whether Congress, in enacting the FLSA, intended completely to preclude the states from regulating the wages, hours and overtime pay of employees engaged in interstate commerce.

'It is often a perplexing question whether Congress has precluded state action or by the choice of selective regulatory measures has left the police power of the States undisturbed except as the state and federal regulations collide.' Rice v. Santa Fe Elevator Corporation, 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447. Generally, it may be stated that 'acts of Congress preclude state interferences with interstate commerce when: (1) Congress has occupied or pre-empted the field; (2) there (is) a conflict or clash between the congressional and state statutes; and (3) when the local interference inhibit(s) the attainment of the policy underlying the congressional legislation.' 2 Antieau, Modern Constitutional Law, p. 95 (1969). In considering whether state interference is precluded it is important to note that 'Congress, in producing the Act, did not make it coextensive with the limits of its power over commerce. 'The history of the legislation leaves no doubt that Congress chose not to enter areas which it might have occupied' . . . (Kirschbaum Co. v. Walling, 316 U.S. 517, 522, 62 S.Ct. 1116, 86 L.Ed. 1638). This necessarily means that there is a remaining area which is the subject for appropriate state regulation. Congress 'indicated its purpose to leave local business to the protection of the states' (Walling v. Jacksonville Paper Co., 317 U.S. 564, 570, 63 S.Ct. 332, 87 L.Ed. 460; 10 East 40th St. Bldg., Inc. v. Callus, 325 U.S. 578, 582, 65 S.Ct. 1227, 89 L.Ed. 1806). This less-than-complete coverage is manifested and occasioned by the Act's failure to contain, with respect to interstate commerce, such words as 'affecting' or 'promoting' rather than the narrower 'engaged in commerce or in the production of goods for commerce.' (Higgins v. Carr Bros. Co., 317 U.S. 572, 574, 63 S.Ct. 337, 87 L.Ed. 468).' Goldberg v. Wade Lahar Construction Co., 290 F.2d 408, 414 (8th Cir.).

Although we have not been referred to and have been unable to find a case which clearly determines this issue, we are led by the authorities to the conclusion that Congress intended the FLSA to be exclusive ¹ except for those instances under 29 U.S.C. § 218 and the exemptions provided by 29 U.S.C. § 213 which will be discussed later in this opinion. In Mitchell v. H. B. Zachry Co., 362 U.S. 310, 320, 80 S.Ct. 739, 745, 4 L.Ed.2d 753, Mr. Justice Frankfurter stated that '(a)lthough the . . . (FLSA) has never contained even a general definition of the relationship of an activity to commerce necessary to justify its inclusion, such a relationship has been extrapolated by the courts in conformity with the statutory scheme, so as to displace state regulation 'throughout the farthest reaches of the channels of interstate commerce.' Walling v. Jacksonville Paper Co., . . . (317 U.S. 564, 567, 63 S.Ct. 332, 87 L.Ed. 460).' (Emphasis added.) In the same opinion, he twice referred to 'displacement of state power.' Mitchell v. H. B. Zachry Co., supra, 362 U.S. 316, 80 S.Ct. 739. The defendant contends that this language was merely dicta, but in Roberts, The Court and the Constitution, at page 56, Mr. Justice Roberts, in discussing United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609, which upheld the constitutionality of the FLSA, states that 'the effect of sustaining the act was to place the whole matter of wages and hours of persons employed through the United States, with slight exceptions, under a single federal regulatory scheme and in this way completely to supersede state exercise of the police power in this field.' ² In an earlier decision, Kirschbaum Co. v. Walling, 316 U.S. 517, 522, 62 S.Ct. 1116, 86 L.Ed. 1638, Mr. Justice Frankfurter spoke of Congress not 'occupying' areas which it might have occupied because the FLSA did not apply to employees in industries merely 'affecting' commerce. Lower federal court decisions also lend support for the preemptive nature of the Act: '(I)f the petitioner was employed in interstate commerce, the Federal Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., controls to the exclusion of the State Legislation. Congress has occupied the field of labor relations in such commerce and the State no longer has any power to deal with the subject.' Sirmon v. Cron & Gracey Drilling Corporation, 44 F.Supp. 29, 30 (D.La). Also in Divine v. Levy, 36 F.Supp. 55, 58 (D.La.), the District Court stated that because the plaintiff was employed in interstate commerce 'the . . . (FLSA) comes to his succor; the benefits coming to him thereunder are to the exclusion of those coming to him under a state statute. The state statute is to apply only when the unpaid and discharged laborer has been engaged in intrastate commerce.' The New York Court of Appeals held similarly in a case dealing with the Hours of Service Act, 45 U.S.C. § 61 et seq., which regulates the hours of work of certain classes of employees of carriers engaged in interstate commerce, stating that: 'Where employees are engaged both in interstate and intrastate commerce, regulation of their hours of labor and their wages by congressional action shall be construed as an exclusion of the states from the same field.' Long Island R. Co. v. Department of Labor, 256 N.Y. 498, 516, 177 N.E. 17,...