Lukens Steel Co. v. Perkins, 7368.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 107 F.2d 627
• Docket Number: No. 7368.,7368.
• Parties: LUKENS STEEL CO. et al. v. PERKINS et al.
• Decision Date: 04 August 1939

107 F.2d 627 (1939)

LUKENS STEEL CO. et al.
v.
PERKINS et al.

No. 7368.

United States Court of Appeals for the District of Columbia.

Decided August 4, 1939.

On the Merits October 3, 1939.

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Roberts B. Thomas, of New York City, O. Max Gardner, of Washington, D. C., and Frederick H. Knight, of Philadelphia, Pa., for appellants

Edward J. Ennis, of New York City, and Charles E. Rhetts, of Washington, D. C., for appellees.

Joseph Kovner, of Washington, D. C., amicus curiæ for Steel Workers Organizing Committee.

R. M. O'Hara, of Washington, D. C., amicus curiæ for Andrews Steel Co. et al.

John F. Budke, of Franklin, Pa., amicus curiæ for Parkersburg Iron & Steel Co.

Before MILLER, EDGERTON, and VINSON, Associate Justices.

PER CURIAM.

This cause was specially set down for argument on the appellants' (plaintiffs') petition for an injunction against the above named appellees (defendants) restraining them from continuing in effect a determination made under date of January 16, 1939, by appellee McLaughlin, as Acting Secretary of Labor, pursuant to "An Act To provide conditions for the purchase of supplies and the making of contracts by the United States, and for other purposes.", approved June 30, 1936, 49 Stat. 2036, 41 U.S.C.A. § 35 et seq. We had previously granted an injunction pendente lite, which will be continued in effect.

The case was fully argued at the hearing and has been given due consideration. Justices MILLER and VINSON are of opinion that the complaint states a valid cause of action entitling the plaintiffs to an injunction as prayed therein and, therefore, are of opinion that the District Court was in error in dismissing the complaint. The grounds of this court's opinion will be filed shortly, and Justice EDGERTON will file a dissenting opinion. A judgment will thereupon be entered remanding the cause to the District Court, with instructions to set aside and vacate its previous order dismissing the complaint, and directing that court to proceed in accordance with the opinion of this court.

On the Merits.

MILLER, Associate Justice.

In 1936, Congress enacted a statute¹ which, among other things, provides that "in any contract made and entered into by any * * * agency * * * of the United States * * * for the manufacture or furnishing of materials, supplies,

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articles, and equipment in any amount exceeding $10,000, there shall be included * * *" five representations and stipulations, the second of which reads as follows:²

"That all persons employed by the contractor in the manufacture or furnishing of the materials, supplies, articles, or equipment used in the performance of the contract will be paid, without subsequent deduction or rebate on any account, not less than the minimum wages as determined by the Secretary of Labor to be the prevailing minimum wages for persons employed on similar work or in the particular or similar industries or groups of industries currently operating in the locality in which the materials, supplies, articles, or equipment are to be manufactured or furnished under said contract." Italics supplied

The complaint filed by appellants in the lower court alleged that on or about January 16, 1939, appellee McLaughlin, purporting to act pursuant to the statute, issued a determination — in which appellee Perkins actively participated, and which she authorized, approved and consented to — determining:

"(2) That the prevailing minimum wages for persons employed in the manufacture or furnishing of the products of the Iron and Steel Industry are the amounts indicated for each of the following localities whether arrived at on a time or piece work basis:

* * * * * *

"6. 62½ cents per hour in the locality consisting of Ohio, Pennsylvania, Delaware, Maryland, Kentucky, New Jersey, New York, Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire, and Maine, and that portion of the State of West Virginia comprised within the counties of Hancock, Brooke, Ohio, Marshall, Harrison, and Monongalia, and the District of Columbia." Italics supplied

This determination was challenged in the lower court, and is challenged here, as void, beyond the authority of the appellees Perkins and McLaughlin to make, arbitrary and capricious, and wholly without warrant or authority of law; particularly in its employment of the word locality to describe an area consisting of thirteen states, a portion of a fourteenth, and the District of Columbia as well. The challenge is well justified and the lower court erred in dismissing the complaint. The determination in this particular is not only unwarranted but incongruous.

It is true that the word locality is one of somewhat indefinite meaning.³ Still, its indefiniteness has certain well recognized limits in common meaning and usage,⁴ which exclude and forbid the interpretation placed upon the word by the appellees in their determination. It is true that within the proper limits of the meaning of locality, the Secretary is required by the statute to exercise judgment and discretion; but the determination in this case goes so far beyond any possible proper application of the word as to defeat its meaning and to constitute an attempt arbitrarily to disregard the statutory mandate. The rule therefore — that where the adoption of one of several possible interpretations of a doubtful statute involves the exercise of judgment and discretion, upon which the duty of an officer to perform a particular act depends, the courts cannot control the exercise of that discretion⁵ — has no application in the present case.⁶

Popular acceptance and usage accord to the word locality connotations of common interest and understanding, such as are revealed in the following expressions: Local self-government,⁷ our local schools,

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local interests, a local concern,⁸ local option,⁹ local boy makes good, local items as used in newspapers, local prejudices, local talent.¹⁰ Its meaning is suggested also by such terms as local anesthetic, and location as used in mining law,¹¹ and in motion picture parlance. In ordinary and common usage locality is synonymous in meaning with such words as place, vicinity, neighborhood and community.¹² These words, also, are too indefinite to be used for purposes of exact measurement in terms of acres or square miles.¹³ But neither they nor locality itself, in any case, connote large geographical areas, with widely diverse interests, such as the fourteen states and the District of Columbia, grouped in the protested determination. The word place, in its ordinary significance, has a distinctly limited meaning as is indicated by such expressions as place of birth, place of origin, the old home place, ore in place, and by the word placement as used in the game of tennis. Would a jury from the vicinity of Brooklyn be acceptable — within the well known rule¹⁴ — for the trial of an accused person in St. Lawrence County, New York, to say nothing of Sussex County, Delaware? Would it be a normal use of the word to say that folks in Van Buren, Maine, neighbor with those in the District of Columbia, or in Monongalia County, West Virginia? To ask these questions is to answer them. The word community^14a connotes a congeries of common interests arising from associations — social, business, religious, governmental, scholastic, recreational — involving considerations of public health, fire protection, water, sewage, transportation, and other services, which bind together the people of such a community or set them quarreling with each other. The only community of interest revealed by the determination in the present case is steel and iron manufacture. It could almost as well be said that because Esperanto groups throughout the world have a community of interest, the whole world is a locality

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Words which approximate in meaning the definition contended for by appellees are area, region, province, territory, river basin, drainage area, water shed. In the Report of the Public Contracts Board¹⁵ — and upon which it is alleged that the protested determination was based — the words area and region are used throughout. The Report reveals that no attention was paid therein to the concept of locality specified in the statute. In fact, the basis of the determination — assuming the correctness of appellants' allegations, as we are bound to do upon a motion to dismiss¹⁶ — is revealed throughout the Report by such language as the following: "The predominant minimum wage practice in this industry comes to light only when we view the practice of the industry as a whole or over broad regional areas" Italics supplied; and again by the following language: "These various producing centers occupy relatively small areas and none of them can be called geographic regions. It should be noted that the variations in base rates between a majority of the producing centers are not wide. * * * The question here is whether these relatively small wage variations between relatively small geographical areas should be made the basis for separate findings of prevailing minimum wages which would be limited to the locale of the variation." Italics supplied The Report and the determination both answered the question in the negative; deliberately rejecting the delegation of power given by the statute and assuming a power neither given nor intended thereby.¹⁷

It is significant that appellees cite no cases which support or suggest a meaning for the word locality comparable in geographical

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area or scope with the meaning given to it in the protested determination. But they argue that the use of the word locality in the Public Contracts Act in preference to the language "city, town, village, or other civil subdivision of the state" which is used in the Davis-Bacon Act¹⁸ "clearly discloses the congressional intent that the word `locality' shall not be restricted to a civil subdivision of the...