Harrison v. Herzig Bldg. & Supply Co.

• Decision Date: 28 April 1942
• Citation: 161 S.W.2d 908,290 Ky. 445
• Parties: HARRISON v. HERZIG BUILDING & SUPPLY CO.
• Court: Kentucky Court of Appeals

161 S.W.2d 908

290 Ky. 445

HARRISON v. HERZIG BUILDING & SUPPLY CO.

Court of Appeals of Kentucky

April 28, 1942

Appeal from Circuit Court, Laurel County; Franklin P. Stivers Judge.

Action by Harry Harrison against Maria Herzig, doing business under the style of Herzig Building & Supply Company, to recover wages due for overtime work under the Fair Labor Standards Act and liquidated damages for nonpayment thereof. From a judgment of dismissal, plaintiff appeals.

Reversed.

Wharton Noble, of London, for appellant.

H. C Clay & Sons, of London, for appellee.

STANLEY Commissioner.

The appeal presents the question of whether a State Court is required or permitted to take jurisdiction of a case founded upon a right of action created by an Act of Congress. The decision calls for the construction of the term "any court of competent jurisdiction," used in the Fair Labor Standards Act of 1938--more popularly known as the Wages and Hours Law, 52 Statutes at Large, 1060, 29 U.S.C.A. § 201 et seq. The Act which prohibits shipment in interstate commerce of goods produced therefor under conditions denounced by it is a valid exercise of federal constitutional power. United States v. Darby, 312 U.S. 100, 657, 61 S.Ct 451, 85 L.Ed. 609, 132 A.L.R. 1430.

Pertinent provisions are as follows:

"Sec. 6 [§ 206]. (a) Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages at the following rates--(1) during the first year from the effective date of this section, not less than 25 cents an hour, (2) during the next six years from such date, not less than 30 cents an hour, ***."

"Sec. 7 [§ 207]. (a) No employer shall, *** employ any of his employees who is engaged in commerce or in the production of goods for commerce--(1) for a workweek longer than forty-four hours during the first year from the effective date of this section, (2) for a workweek longer than forty-two hours during the second year from such date, or (3) for a workweek longer than forty hours after the expiration of the second year from such date, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."

"Sec. 16 [§ 216]. *** (b) Any employer who violates the provisions of section 6 or section 7 of this Act [section 206 or section 207 of this title] shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action."

In his petition filed in the Laurel Circuit Court, the appellant, Harry Harrison, alleged that the defendant, Maria Herzig, doing business under the style of Herzig Building and Supply Company, at London, Kentucky, is and was engaged in selling lumber and building material in Kentucky and adjoining states. He alleged in substance that from October 25, 1938 (the effective date of the Act), to May 1, 1941, he had been employed by the defendant and entitled to receive under the Act a minimum wage of 25 cents an hour for overtime; that he had worked a total of 1,560 overtime hours, for which he should recover $577.20 as wages. He further pleaded the right under Section 16(b) of the Act to recover an additional sum of $577.20 as liquidated damages, and prayed judgment for $1,154.40 and his costs, including a reasonable attorney's fee. The court sustained a special demurrer to the petition and the plaintiff suffered its dismissal by failing to plead further. The sufficiency of the petition, tested by general demurrer, was not passed upon by the circuit court, and we confine ourselves also to the sole question of jurisdiction.

The question is raised by the appellant: Since the National Government has only delegated powers wherein does Congress acquire authority to require the courts of the several states to take jurisdiction of a cause of action wholly created by it? The answer is that such jurisdiction is not conferred by the act of Congress. It merely is recognized. It exists by virtue of the State Constitutions, all of which contain provisions similar to Section 14 of the Constitution of Kentucky, declaring that: "All courts shall be open and every person, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay." In the proper exercise of any delegated power in respect to substantive matters, Congress may take them over and place exclusive jurisdiction in the Federal courts to enforce them both by authority of necessary implication and under Article III, Section 2 of the Constitution of the United States. We have a dual citizenship, with rights and duties appertaining thereto, severally and jointly. Legal remedies for any civil wrong may be enforced as a matter of right in the appropriate state courts save in exceptional instances where jurisdiction has been expressly denied by the Constitution of the United States or by Congress. Grubb v. Public Utilities Commission, 281 U.S. 470, 50 S.Ct. 374, 74 L.Ed. 972. This is not only by virtue of the State Constitutions but by reason of the duty of the State courts to take cognizance of federal laws. It is declared in Article 6 of the Federal Constitution that the judges in every state shall be bound thereby "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." The two courts form one system of jurisprudence, constituting the law of the land, having jurisdiction partly different and partly concurrent. Claflin v. Houseman, 93 U.S. 130, 23 L.Ed. 833. In Mondou v. New York, N.H. & H. R. Co., 223 U.S. 1, 32 S.Ct. 169, 178, 56 L.Ed. 327, 38 L.R.A.,N.S., 44, sustaining the constitutionality of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., in response to the argument that it imposes duties upon the State court to enforce an act of Congress not in harmony with the policy of the state, the Supreme Court pointed out that Congress "spoke for all the people and all the states, and thereby established a policy for all," and that the policy became as much that of the state as if the act had emanated from its own legislature. The opinion, as do many others, quotes the following pertinent statements from Claflin v. Houseman, supra:

"The laws of the United States are laws in the several states, and just as much binding on the citizens and courts thereof as the state laws are. The United States is not a foreign sovereignty as regards the several states, but is a concurrent, and, within its jurisdiction, paramount, sovereignty. *** If an act of Congress gives a penalty (meaning civil and remedial) to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a state court. The fact that a state court derives its existence and functions from the state laws is no reason why it should not afford relief; because it is subject also to the laws of the United States, and is just as much bound to recognize these as operative within the state as it is to recognize the state laws. The two together form one system of jurisprudence, which constitutes the law of the land for the state; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent. *** It is true, the sovereignties are distinct, and neither can interfere with the proper jurisdiction of the other, as was so clearly shown by the Chief Justice Taney, in the case of Ableman v. Booth, 21 How. 506, 16 L.Ed. 169; and hence the state courts have no power to revise the action of the Federal courts, nor the Federal the state, except where the Federal Constitution or laws are involved. But this is no reason why the state courts should not be open for the prosecution of rights growing out of the laws of the United States, to which their jurisdiction is competent, and not denied."

See Louisville & N. R. Co. v. Scott, 133 Ky. 724, 118 S.W. 990, 19 Ann.Cas. 392, affirmed 219 U.S. 209, 31 S.Ct. 171, 55 L.Ed. 183; Chesapeake & O. Ry. Co. v. Kelly's Adm'x, 161 Ky. 655, 171 S.W. 185, reversed for erroneous instructions 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117, L.R.A. 1917F, 367; also, Knight v. Pennsylvania R. R., 280 Ky. 191, 132 S.W.2d 950, which points out that the mere fact that a right of action springs from a Federal statute does not deprive the State courts of jurisdiction. This has been recently reiterated by the Supreme Court in Miles v. Illinois Central R. Co., 62 S.Ct. 827, 86 L.Ed. 1129. It is to be borne in mind that any decision concerning a federal law by a state court of last resort may be reviewed by the Supreme Court of the United States, and thus all questions may be eventually and finally determined by it.

Therefore the power of Congress to leave with or to impose upon the State courts the duty of enforcing the civil remedies provided by the Wages and Hours...