Kirschbaum v. Walling Arsenal Bldg Corporation v. Same

• Decision Date: 01 June 1942
• Docket Number: Nos. 910,924,s. 910
• Citation: 62 S.Ct. 1116,316 U.S. 517,86 L.Ed. 1638
• Parties: KIRSCHBAUM v. WALLING, Administrator of Wage and Hour Division, U.S. Department of Labor. ARSENAL BLDG. CORPORATION et al. v. SAME
• Court: U.S. Supreme Court

316 U.S. 517

62 S.Ct. 1116

86 L.Ed. 1638

KIRSCHBAUM

v WALLING, Administrator of Wage and Hour Division, U.S.

Department of Labor.

ARSENAL BLDG. CORPORATION et al.

v. SAME.

Nos. 910, 924.

Argued April 28, 29, 1942.

Decided June 1, 1942.

Messrs. Wm. Clarke Mason and Frederick H. Knight, both of Philadelphia, Pa., for petitioner A. B. Kirschbaum Co.

Messrs. Walter Gordon Merritt and Kenneth c. Newman, both of New York City, for petitioners Arsenal Bldg. Corporation and another.

Charles Fahy, Sol. Gen for respondent.

Mr. Justice FRANKFURTER delivered the opinion of the Court.

In United States v. Darby, 312 U.S. 100, 657, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430, and Opp Cotton Mills v. Administrator, 312 U.S. 126, 657, 61 S.Ct. 524, 85 L.Ed. 624, the constitutionality of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C. § 201 et seq., 29 U.S.C.A. § 201 et seq., was sustained. In the cases now before us we are required to consider the scope of the Act in relation to a particular phase of industrial activity. Specifically, the problem is this: Under § 6 of the Act an employer must pay prescribed minimum wages 'to each of his employees who is engaged in commerce or in the production of goods for commerce', and under § 7 overtime compensation must be given 'any of his employees who is engaged in commerce or in the production of goods for commerce'. Section 3(j) provides that 'for the purposes of this Act (chapter) an employee shall be deemed to have been engaged in the production of goods if such employee was employed * * * in any process or occupation necessary to the production thereof, in any State.' The employees here are engaged in the operation and maintenance of a loft building in which large quantities of goods for interstate commerce are produced. Does the Fair Labor Standards Act extend to such employees?

The facts in the two cases differ only in minor detail. In No. 910, the petitioner owns and operates a six-story loft building in Philadelphia. The tenants are, for the most part, manufacturers of men's and boys' clothing. In No 924, the petitioners own and operate a twenty-two story building located in the heart of the New York City clothing manufacturing district. Practically all of the tenants manufacture or buy and sell ladies' garments. Concededly, in both cases the tenants of the buildings are principally engaged in the production of goods for interstate commerce. In No. 910, the petitioner employs an engineer, three firemen, three elevator operators, two watchmen, a porter, a carpenter, and a carpenter's helper. In No. 924, the controversy involves two firemen, an electrician, fourteen elevator operators, two watchmen, and six porters. These employees perform the customary duties of persons charged with the effective maintenance of a loft building. The engineer and the firemen produce heat, hot water, and steam necessary to the manufacturing operations. They keep elevators, radiators, and fire sprinkler systems in repair. The electrician maintains the system which furnishes the tenants with light and power. The elevator operators run both the freight elevators which start and finish the interstate journeys of goods going from and coming to the tenants, and the passenger elevators which carry employees, customers, salesmen, and visitors. The watchmen protect the buildings from fire and theft. The carpenters repair the halls and stairways and other parts of the buildings commonly used by the tenants. The porters keep the buildings clean and habitable.

Deeming these employees within the Act because of their relationship to the activities of the tenants, the Administrator brought suits to enjoin the petitioners from violating the Act by paying wages at lower rates than those fixed by the Act. In No. 910, the District Court granted an injunction, Fleming v. A. B. Kirschbaum Co., 38 F.Supp. 204, and the Circuit Court of Appeals for the Third Circuit affirmed. 124 F.2d 567. In No. 924, the District Court denied an injunction, Fleming v. Arsenal Building Corp., 38 F.Supp. 207, but the Circuit Court of Appeals for the Second Circuit reversed. 125 F.2d 278. Despite this concurrence of views of the two Circuit Courts of Appeals,¹ we brought the cases here because of the important questions presented as to the scope of the Fair Labor Standards Act. A. B. Kirschbaum Co. v. Fleming, 315 U.S. 792, 62 S.Ct. 800, 86 L.Ed. -; Arsenal Building Corp. v. Fleming, 315 U.S. 792, 62 S.Ct. 801, 86 L.Ed. —-.

To search for a dependable touchstone by which to determine whether employees are 'engaged in commerce or in the production of goods for commerce' is as rewarding as an attempt to square the circle. The judicial task in marking out the extent to which Congress has exercised its constitutional power over commerce is not that of devising an abstract formula. Perhaps in no domain of public law are general propositions less helpful and indeed more mischievous than where boundaries must be drawn under a federal enactment between what it has taken over for administration by the central Government and what it has left to the States. To a considerable extent the task is one of accommodation as between assertions of new federal authority and historic functions of the individual states. The expansion of our industrial economy has inevitably been reflected in the extension of federal authority over economic enterprise and its absorption of authority previously possessed by the States. Federal legislation of this character cannot therefore be construed without regard to the implications of our dual system of government.

The body of Congressional enactments regulating commerce reveals a process of legislation which is strikingly empiric. The degree of accommodation made by Congress from time to time in the relations between federal and state governments has varied with the subject mat- ter of the legislation, the history behind the particular field of regulation, the specific terms in which the new regulatory legislation has been cast, and the procedures established for its administration. See, e.g., Virginian R. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789. Thus, while a phase of industrial enterprise may be subject to control under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., a different phase of the same enterprise may not come within the 'commerce' protected by the Sherman Law, 15 U.S.C.A. §§ 1-7, 15 note. Compare, for example, United Leather Workers' International Union v. Herkert & Meisel Trunk Co., 265 U.S. 457, 44 S.Ct. 623, 68 L.Ed. 1104, 33 A.L.R. 566, and Levering & G. Co. v. Morrin, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062, with National Labor Relations Board v. Friedman-Harry Marks Clothing Co., 301 U.S. 58, 57 S.Ct. 645, 81 L.Ed. 921, 108 A.L.R. 1352, and National Labor Relations Board v. Fainblatt, 306 U.S. 601, 307 U.S. 609, 59 S.Ct. 668, 83 L.Ed. 1014. Similarly, enterprises subject to federal industrial regulation may nevertheless be taxed by the States without putting an unconstitutional burden on interstate commerce. Compare Heisler v. Thomas Colliery Co., 260 U.S. 245, 43 S.Ct. 83, 67 L.Ed. 237, and Oliver Iron Mining Co. v. Lord, 262 U.S. 172, 43 S.Ct. 526, 67 L.Ed. 929, with Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263.

We cannot, therefore, indulge in the loose assumption that when Congress adopts a new scheme for federal industrial regulation, it thereby deals with all situations falling within the general mischief which gave rise to the legislation. Such an assumption might be valid where remedy of the mischief is the concern of only a single unitary government. It cannot be accepted where the practicalities of federalism—or, more precisely, the underlying assumptions of our dual form of government and the consequent presuppositions of legislative draftsmanship which are expressive of our history and habits—cut across what might otherwise be the implied range of the legislation. Congress may choose, as it has chosen frequently in the past, to regulate only part of what it constitutionally can regulate, leaving to the States activities which, if isolated, are only local. One need refer only to the history of Congressional control over the rates of intra-state carriers which affect interstate commerce,² and the amendment of August 11, 1939, to the Federal Employers' Liability Act, extending the scope of that Act to employees who 'shall, in any way directly or closely and substantially, affect' interstate commerce, 53 Stat. 1404, 45 U.S.C.A. § 51. Compare Federal Trade Commission v. Bunte Bros., 312 U.S. 349, 61 S.Ct. 580, 85 L.Ed. 881. The history of Congressional legislation regulating not only interstate commerce as such but also activities intertwined with it, justifies the generalization that, when the federal government takes over such local radiations in the vast network of our national economic enterprise and thereby radically readjusts the balance of state and national authority, those charged with the duty of legislating are reasonably explicit and do not entrust its attainment to that retrospective expansion of meaning which properly deserves the stigma of judicial legislation.

The Administrator does not contend that the employees in the cases before us are within the Act because Congress could have placed them there. The history of the legislation leaves no doubt that Congress chose not to enter areas which it might have occupied. As passed by the House, the bill applied to employers 'engaged in commerce in any industry affecting commerce'. See H.Rep. No. 2182, 75th Cong., 3rd Sess., p. 2; 83 Cong.Rec. 7749 50. But the bill recommended by the conference applied only to employees 'engaged in commerce or in the production of goods for commerce'. H.Rep. No. 2738, 75th Cong., 3rd Sess., pp. 29—30; 83 Cong.Rec. 9158, 9266—67. Moreover, in one of its intermediate stages, the measure incorporated...