United States v. Barr & Bloomfield Shoe Mfg. Co., Cr. No. 5756.

• Decision Date: 02 October 1940
• Docket Number: Cr. No. 5756.
• Citation: 35 F. Supp. 75
• Court: U.S. District Court — District of New Hampshire
• Parties: UNITED STATES v. BARR & BLOOMFIELD SHOE MFG. CO. et al.

35 F. Supp. 75

UNITED STATES v. BARR & BLOOMFIELD SHOE MFG. CO. et al.

Cr. No. 5756.

District Court, D. New Hampshire.

October 2, 1940.

Alexander Murchie, U. S. Atty., of Concord, N. H., and Vernon C. Stoneman and Allan A. Tepper, U. S. Department of Justice, both of Boston, Mass., for plaintiff.

Joseph B. Wolbarsht and Charles A. Rome, both of Boston, Mass., for defendants.

MORRIS, District Judge.

This is a criminal information filed July 24, 1940, against the Barr & Bloomfield Shoe Mfg. Co., a corporation organized under the laws of the State of New Hampshire, having its principal place of business in Seabrook in the District of New Hampshire, and Samuel Garfinkel of Lynn in the District of Massachusetts, treasurer and general manager of said corporation and Joseph King of Salem in said District of Massachusetts, foreman in charge of certain employees in said corporation.

The defendant corporation is engaged in the business of manufacturing, producing, and selling women's shoes to be shipped in interstate commerce.

The information charges numerous violations of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq.

On September 11, 1940, the defendants and each of them filed a demurrer to the information alleging the unconstitutionality of the entire Act and specifically certain provisions of the Act. Other less important grounds of demurrer were alleged.

The matter came on for hearing September 11, 1940, when the parties were heard orally and thereafter filed elaborate briefs.

The question of the constitutionality of the Fair Labor Standards Act lies at the foundation of the defendants' demurrer. If this were to be determined in defendants' favor, the other grounds of demurrer become immaterial.

There was a time, not so very long ago, when the term "interstate commerce" was held to apply to transactions between parties in one state and those of another. Manufacturing was held not to be commerce and was beyond the pale of constitutional provisions regulating interstate commerce. These observations may be well illustrated by quotations from various well considered opinions of the Supreme Court as then constituted.

In the case of Kidd v. Pearson, 128 U. S. 1, 9 S.Ct. 6, 10, 32 L.Ed. 346, decided in 1888, Mr. Justice Lamar discusses the distinction between manufactures and commerce in the following language: "No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufactures and commerce. Manufacture is transformation — the fashioning of raw materials into a change of form for use. The functions of commerce are different. The buying and selling and the transportation incidental thereto constitute commerce; and the regulation of commerce in the constitutional sense embraces the regulation at least of such transportation."

The foregoing language was quoted with approval by Mr. Justice Sutherland in the case of Carter v. Carter Coal Company, 298 U.S. 238, 56 S.Ct. 855, 867, 80 L.Ed. 1160. Decided in 1936.

It is further observed by the Court in the case last above cited that the word "commerce" as used in the Constitution is the equivalent of the phrase "intercourse for the purposes of trade" and includes transportation, purchase, sale and exchange of commodities between the citizens of the different states, and the power to regulate commerce embraces the instruments by which commerce is carried on. That commodities produced or manufactured within a state are intended to be sold or transported outside the state does not render their production or manufacture subject to federal regulation under the commerce clause.

In the case of Schechter Corporation v. United States, 295 U.S. 495, 55 S.Ct. 837, 851, 79 L.Ed. 1570, 97 A.L.R. 947, Mr. Chief Justice Hughes speaking for the court says:

"Our growth and development have called for wide use of the commerce power of the federal government in its control over the expanded activities of interstate commerce, and in protecting that commerce from burdens, interferences, and conspiracies to restrain and monopolize it. But the authority of the federal government may not be pushed to such an extreme as to destroy the distinction, which the commerce clause itself establishes, between commerce `among the several States' and the internal concerns of a state. The same answer must be made to the contention that is based upon the serious economic situation which led to the passage of the Recovery Act — the fall in prices, the decline in wages and employment, and the curtailment of the market for commodities. Stress is laid upon the great importance of maintaining wage distributions which would provide the necessary stimulus in starting `the cumulative forces making for expanding commercial activity.' Without in any way disparaging this motive, it is enough to say that the recuperative efforts of the federal government must be made in a manner consistent with the authority granted by the Constitution.

"We are of the opinion that the attempt through the provisions of the code to fix the hours and wages of employees of defendants in their intrastate business was not a valid exercise of federal power."

It is true that the Schechter and Carter cases involve a consideration of the National Recovery Act and involved the question of the right of Congress to delegate its powers, but the delegation of power was not stressed in the opinions.

The Fair Labor Standards Act establishing minimum hours of labor and wages appears more closely...