Mengel Co. v. Ishee
Decision Date | 08 December 1941 |
Docket Number | 34730. |
Citation | 192 Miss. 366,4 So.2d 878 |
Court | Mississippi Supreme Court |
Parties | MENGEL CO. v. ISHEE. |
Welch & Cooper, of Laurel, and Jas. U. Smith, Jr., of Louisville, for appellant.
Quitman Ross, of Laurel, for appellee.
The appellee Ishee brought this action in the Circuit Court of Jones County against the appellant the Mengel Company, a corporation engaged in the sawmill business, to recover the sum of $668.33 and 100 percent "liquidated damages" and reasonable attorneys fee and costs, which he claimed was due him by the defendant for "overtime hours" worked by him as one of its employees. The action was brought under the authority of the Fair Labor Standards Act of 1938 commonly called the "Federal Wage and Hour Law" Act of June 25, 1938, c. 676, 52 Stat. 1060, Title 29 U.S.C.A. Sec. 201-219, Laws of 1939, Public Laws No. 344, August 9, 1939. His wages for overhours worked was shown to be $668.33. He recovered a judgment for that amount plus an equal amount as "liquidated damages" less $12.40. The recovery was had under the provisions of Section 16(b) of the Act.
The evidence showed without any real conflict that both Ishee and the Mengel Company were engaged in interstate as well as intrastate commerce. They were engaged in manufacturing lumber and selling it in both classes of commerce. Ishee was foreman for the mill from the time the lumber left the saws and while it went through various processes until the time it was stacked on the yard for shipment to customers both in and out of the State. There is no real substantial difference between the parties as to that fact. We, therefore, go no further with the discussion of the question.
The Mengel Company made application to the court to remove the case to the Federal District Court for the Southern District of this State and in connection therewith presented the necessary bond and otherwise complied with the removal statute. The application for removal was denied and that action of the court excepted to. The Mengel Company then moved the court to dismiss the suit upon the ground that under the law the jurisdiction of the Federal Court was exclusive and therefore the state courts were without jurisdiction. This motion was overruled and the action of the Court in so doing was excepted to by the Mengel Company.
There are other questions in the case but they are not discussed and disposed of for the reason it would be useless as we have reached the conclusion that the Court erred in overruling the application to remove the case to the Federal Court.
The Federal statutes to be considered and construed are Sections 16(a) and 16(b) of the Wage and Hour Law; U.S.C.A. Title 28 c. 10, § 371, Judicial Code, § 256; U.S.C.A. Title 28, c. 2, § 41, Subsec. 8, Judicial Code, § 24, amended; and U.S.C.A. Title 28, c. 3, § 71, Judicial Code, § 28, amended. They are herewith copied in the order stated above:
First. Of all crimes and offenses cognizable under the authority of the United States.
Second. Of all suits for penalties and forfeitures incurred under the laws of the United States."
The majority of the Court are of the opinion that the Act gives the State and Federal courts concurrent jurisdiction regardless of whether the 100 percent "liquidated damages" provided for in Section 16(b) is a penalty or damages; that the language in the Act "action to recover such liability may be maintained in any court of competent jurisdiction" means any State or Federal court having jurisdiction; that, therefore, the statute giving the Federal courts exclusive jurisdiction of penalties and forfeitures was modified to that extent. The view of the majority is supported by the very able opinion of the Supreme Court of Alabama in Forsyth v. Central Foundry Co., Nov. 22, 1940, 240 Ala. 277, 198 So. 706; nevertheless the writer thinks it unsound.
There being concurrent jurisdiction of the State and Federal courts, under the last Federal statute copied above, the defendant may...
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