Lenroot v. Western Union Telegraph Co.

• Decision Date: 03 March 1944
• Citation: 52 F. Supp. 142
• Parties: LENROOT, Chief of Children's Bureau, U. S. Department of Labor, v. WESTERN UNION TELEGRAPH CO.
• Court: U.S. District Court — Southern District of New York

52 F. Supp. 142

LENROOT, Chief of Children's Bureau, U. S. Department of Labor, v. WESTERN UNION TELEGRAPH CO.

District Court, S. D. New York.

October 7, 1943.

Judgment Affirmed March 3, 1944.

Douglas B. Maggs, Sol., Irving J. Levy, Associate Sol., and Julius Schlezinger, Principal Atty., all of Washington, D. C., and John K. Carroll, Regional Atty., and John A. Hughes, Atty., United States Department of Labor, both of New York City, (Charles M. Joseph, of New York City, of counsel), for plaintiff.

Francis R. Stark and Clarence W. Roberts, both of New York City, for defendant.

RIFKIND, District Judge.

All the facts have been stipulated and both parties move for summary judgment. Plaintiff is the Chief of the Children's Bureau of the United States Department of Labor, who is authorized, "subject to the direction and control of the Attorney General," to bring this action. Section 12(b) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 212(b).

Defendant is engaged in the transmission and delivery of telegraph messages throughout the United States and in foreign countries. Its principal office is within the Southern District of New York.

The action is to enjoin defendant from violating the provision of Section 15(a) (4) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 215(a)(4). The violations alleged are that, within the period beginning January 1, 1941, and continuing to the date of the complaint, defendant has been engaged in shipping telegraph messages in interstate commerce and in delivering telegraph messages for shipment in interstate commerce, such messages having been produced in its establishments in which oppressive child labor was employed.

The oppressive child labor was of two categories: (1) Within the period beginning January 1, 1941, and continuing to the date of the complaint, defendant employed in its establishments minors under 16 years of age; (2) within the period beginning January 1, 1942, and continuing to the date of the complaint, defendant employed in its establishments minors between 16 and 18 years of age in the occupation of motor vehicle driver.

The relevant statutory and regulatory provisions are set out in the margin.¹

Only two questions are presented for decision: Are the activities of the defendant subject to the child labor provisions of the Act? If the answer is in the affirmative, should injunctive relief be granted? It is the contention of defendant that it is not a "producer, manufacturer or dealer," that it does not "ship or deliver for shipment in commerce any goods." It is engaged, the defendant argues, in the transmission of ideas, whereas the statute governs only the shipment of tangible goods. Plaintiff argues that there is no such limiting language expressed in the statute and that no such limiting intention can be discovered in the policy and history of the statute.

A brief description of what actually occurs at the establishments of the defendant has been stipulated. Messages transmitted by defendant are received and delivered by the following methods: Messengers, over-the-counter, telephone and private telegraph wire. The large majority of messengers use bicycles. A smaller number perform their duties on foot. A still lesser number operate motor vehicles.

Over-the-counter messages are usually inscribed on a telegraph blank by the sender but, sometimes, by employees of defendant. Messages received by private telegraph wire are printed at an office of defendant on a telegraph blank or on gummed paper tape. Messages received by messenger are inscribed by the sender and carried by the messenger to an office of the defendant.

At the office where a message is received for transmission, an employee stamps it with the date and time of filing. He also notes the number of words and the class of telegraph service. If a word is illegible, or if words have been wrongly combined or broken, an employee of defendant makes the necessary correction. The stamped and corrected message is then transmitted to a message center either by means of a teleprinter operated on a telegraphic circuit or by pneumatic tube.

In the message center, each message is marked with the name or symbol of the message center to which it is to be routed. It is then distributed to the proper telegraph circuit for transmission to that message center. In most instances the message is conveyed to the designated message center from the originating message center by teleprinter, multiplex printer or Morse key. When the multiplex printer is used the message is first converted into a perforated paper which is fed into an automatic transmitter. In using either the teleprinter or the multiplex printer, the message is received in the form of symbols reprinted by a machine at the receiving center. When the Morse key is used, the communicating signal is an audible one. An operator at the receiving center translates the audible code signals and reduces them to writing.

From the receiving message center, the messages are routed to the defendant's offices and delivered to the respective sendees by the same means by which the messages are originally received for transmission at message centers.

On March 31, 1943, 11.14 per cent of defendants messengers were under 16 years of age, and 33/100 of one per cent were between 16 and 18 years of age and employed as operators of motor vehicles.

In analyzing the provisions of the child labor sections of the Fair Labor Standards Act, two general considerations must be observed: First, the incidence of these provisions of the statute is not aimed at those engaged in interstate commerce, nor at those who produce goods for commerce. Cf. Sections 6 and 7 of the Act, 29 U.S.C.A. §§ 206, 207. The statute does not prohibit the employment of child labor. The ban of the statute is against shipment or delivery for shipment, in commerce, by a producer, manufacturer or dealer of any goods produced in an establishment situated in the United States in or about which any oppressive child labor has been employed. Second, the statute establishes a national policy and a national standard of child labor. It does not constitute merely an additional sanction for the enforcement of varying state child labor laws.

Those two characteristics of the statute are the fruits of a long national debate and considerable legislative experimentation.²

The history of the statute is consistent only with the conclusion that Congress intended to keep the arteries of commerce free from pollution by the sweat of child labor. To accomplish this result with the least difficulty, the law prohibited the introduction into the stream of commerce, not only of the products of child labor but of all of the products of an establishment where any child labor had been employed within 30 days. In view of the breadth of the congressional policy, the opening hypothesis should be that the defendant is subject to the Act unless reason for lack of application is clearly shown. (I am not speaking of the burden of proof, since the case presents no issues of fact.)

We look first to the list of exemptions enacted by Congress. Section 13(c) exempts one class of agricultural employees. It further makes the law inapplicable "to any child employed as an actor in motion pictures or theatrical productions." I think I may take judicial notice of the fact that for a generation or more the employment of young messengers by the telegraph companies in the United States has been open and notorious. How simple it would have been, were such the intention of Congress, to add to Section 13(c) a few words describing them. Indeed, in another connection, messengers are expressly mentioned in Section 14, 29 U.S.C.A. § 214. The answer to this query might be that such an express exemption would be inconsistent with the scheme of the Act which, it is asserted, deals only with tangibles; but observe the words "theatrical productions." Granted that motion picture producers manufacture tangible film, what tangible goods are produced at a theatrical production? Theatrical productions can be tele-casted or televised. Manifestly Congress was unwilling to rely on the intangible character of such goods to take them out of the statutory prohibition and granted an express exemption to child actors. It gave no such explicit sanction to the employment of children as telegraph messengers.

Defendant's chief reliance is upon the "obvious and natural import of the language." United States v. Goldenberg, 1897, 168 U.S. 95, 102, 18 S.Ct. 3, 4, 42 L.Ed. 394; Lynch v. Alworth-Stephens Co., 1925, 267 U.S. 364, 370, 45 S.Ct. 274, 69 L.Ed. 660. The words "producer" and "goods" especially when used in a context with "ship," it is contended, require a construction of the statute which limits its application to producers of goods that can be shipped, or tangible goods.

Reliance upon the common meaning of the terms employed is misplaced when Congress has enacted definitions which necessarily displace both the dictionary and common usage as authority for the meanings of the words employed. Thus, under the statute, "produced" includes "handled, or in any other manner worked on." Section 3(j). "Goods" includes "articles or subjects of commerce of any character." Section 3(i). If only tangible goods were within the purview of the statute, what do the emphasized words add to the words "wares, products, commodities, merchandise," which precede them? Assuming that "articles * * * of commerce" might be disregarded as no more than a verbal flourish, usually deprived of effect by the rule of noscitur a sociis (State of Virginia v. Tennessee, 1893, 148 U.S. 503, 519, 13 S.Ct. 728, 37 L.Ed. 537; United States v. Baumgartner, D.C.S.D.Cal., 259 F. 722, 724), the insertion of "subjects of commerce" seems insistently to demand that tangibility shall not be the required attribute of the goods. The phrase "subjects of commerce" has a history which the manifest professional...