1. The legislative history of the child labor provisions of the
Fair Labor Standards Act of 1938 is inconclusive as to whether the
Act was intended to reach such child labor as is here involved. P.
323 U. S.
500.
2. Section 12(a) of the Fair Labor Standards Act of 1938, which
provides that
"no producer . . . shall ship or deliver for shipment in
commerce any goods produced in an establishment . . . in or about
which . . . any oppressive child labor has been employed . . .
"
held inapplicable to a company engaged in the
transmission in interstate commerce of telegraph messages. P.
323 U. S. 501
et seq.
(a) Transmission of telegraph messages is not production of
goods within § 12(a). As used in § 3(j) of the Act, which defines
"produced" as meaning,
inter alia, "handled" or "worked
on," the words "handled" and "worked on" include every kind of
incidental operation preparatory to putting goods into the stream
of commerce, but do not include such handling or working on as
accomplishes the interstate transit or movement in commerce itself.
P.
323 U. S.
504.
(b) The word "ship," used in the Act in its ordinary meaning, is
inapplicable to telegraph messages. P.
323 U. S.
506.
(c) The recoil on the public interest which would ensue is
persuasive that the Act did not contemplate application of its
indirect sanctions to the telegraph company. P.
323 U. S.
507.
141 F.2d 400 reversed.
Certiorari, 322 U.S. 719, to review the affirmance of a decree
of injunction,
52 F. Supp.
142, restraining alleged violations of the child labor
provisions of the Fair Labor Standards Act of 1938.
Page 323 U. S. 491
MR. JUSTICE JACKSON delivered the opinion of the Court.
A decree of the District Court in substance restrains the
Western Union Telegraph Company from transmitting messages in
interstate commerce until, for thirty days, it has ceased
employment of messengers under the age of sixteen years and of
certain others between the ages of sixteen and eighteen. This was
thought to be required by the Fair Labor Standards Act of 1938. The
Circuit Court of Appeals affirmed, and we granted certiorari. 322
U.S. 719.
The Western Union Telegraph Company collects messages in
communities of origin and dispatches them by electrical impulses to
places of destination, where they are distributed. Messengers are
employed in both collection and distribution. A little under 12
percent of the messenger force is under sixteen years of age, and
about .0033 percent are from sixteen to eighteen years of age,
engaged in the operation of motor vehicles, scooters, and
telemotors. These messengers are employed only in localities where
the law of the state permits it. It is not denied that both groups
are engaged in oppressive child labor as defined by the Federal
Act, [
Footnote 1] if it
applies. Whether it does so apply is the only issue here.
Page 323 U. S. 492
I. It is conceded that the Act does not directly prohibit the
employment of these messengers, because it contains no prohibition
against employment of child labor in conducting interstate
commerce. [
Footnote 2] It is
conceded, too, that language appropriate directly to forbid this
employment was proposed to Congress and twice rejected.
The major events of the recorded legislative history of this
Act, so far as relevant, were as follows: after the President's
labor message of May 24, 1937 (House Doc. No. 255, 75th Cong., 1st
Sess., p. 2) reminded Congress that "A self-respecting and
self-supporting democracy can plead no justification for the
existence of child labor," bills carefully drawn to carry out his
recommendations were introduced in the Senate by Senator Black, and
in the House by Representative Connery. These bills expressly and
comprehensively prohibited the employment of child labor either in
interstate commerce or in production of goods intended for shipment
in interstate commerce, as well as prohibiting shipment of goods
made by child labor. [
Footnote
3] When the Black bill came to vote in the
Page 323 U. S. 493
Senate, however, all of its child labor provisions were
stricken, and the provisions of another bill recommended by the
Committee on Interstate Commerce were substituted. [
Footnote 4] This prohibited the shipment in
interstate commerce
Page 323 U. S. 494
of goods made by child labor, but it did not prohibit the use of
it in carrying on the commerce itself. Thus, the Senate deleted a
direct prohibition of the employment under question here. But the
House, in turn, struck out all of the child labor provisions of the
Senate bill and substituted those of the Connery bill, [
Footnote 5] which was a counterpart of
the Black bill. This was much amended, but, as passed at length, it
contained a provision forbidding child labor in interstate commerce
"in any industry affecting commerce" and a prohibition of shipment
of child labor-made goods. [
Footnote 6] The Senate, however, did not agree to the
House bill, but meanwhile had passed as a separate measure its own
child labor bill as recommended by the Interstate Commerce
Committee. [
Footnote 7] This
did not prohibit child labor in interstate commerce. In this
posture, the Fair Labor Standards bill went to conference. The
Conference Report says that the Committee
"adopts the child labor provisions of the House amendment, with
one exception. In view of the omission from the conference
agreement of the principle of section 6 of the House
Page 323 U. S. 495
amendment, subsection (b) of section 10 of the House amendment
has been omitted. [
Footnote
8]"
The formula covering every employer "in commerce in an industry
affecting commerce" had been employed in the wage and hour as well
as the child labor provisions of the House bill, and § 6 conferred
on the Secretary of Labor the power to decide whether an industry
was one "affecting commerce." With the elimination of this
delegation to the Secretary, the formula was changed in the wage
and hour provisions, making them apply to "every employee engaged
in commerce or in the production of goods for commerce." Instead of
making a corresponding change in the child labor section, the
conference committee dropped the whole clause. No reason for this
different treatment of the child labor section was given.
No controversy appears to have arisen on the floor of Congress
as to inclusion of a direct prohibition applicable to interstate
commerce. On the contrary, the advocates of the different versions
passed by the Senate and House seem to have overlooked the fact
that one contained the prohibition and the other did not;
controversy was chiefly over whether the Act should simply reenact
the method of the 1916 Act, which had been held unconstitutional,
or should hedge by including labeling and other remedies which
might have a better chance of being upheld, whether state-issued
age certificates should be utilized, how much discretion should be
vested in the Department of Labor, and whether particular goods
only, or all goods from a particular establishment, should be
excluded from commerce. [
Footnote
9] So far as coverage was concerned, all proponents were aware
that any of the suggested versions
Page 323 U. S. 496
of legislation would reach only a small fraction of existing
child labor, [
Footnote 10]
and the chief concern seems to have been
Page 323 U. S. 497
to eliminate child labor in mining and manufacturing industries
shipping goods in interstate commerce, [
Footnote 11] which
Page 323 U. S. 498
was the most objectionable use of child labor. [
Footnote 12] This had ben the only object
of the earlier legislation which had been held unconstitutional;
neither the Act of 1916, [
Footnote 13] held unconstitutional in
Hammer v.
Dagenhart, 247 U. S. 251, nor
the Act of 1919, [
Footnote
14] held unconstitutional in
Bailey v. Drexel Furniture
Co., 259 U. S. 20, had
prohibited child labor in interstate commerce, but both applied
only to child labor in mines, quarries, mills, canneries,
workshops, factories, and manufacturing establishments.
Both parties contend, on the basis of legislative history, that
the omission of a direct prohibition was deliberate, the Company
arguing that it was unwanted, the Government that it was believed
superfluous. We think that dispassionate
Page 323 U. S. 499
reading will not disclose what either advocate sees in this
history.
It is nowhere stated that Congress did, and no reason is stated
or is obvious why Congress should, purposely leave untouched child
labor employed directly in interstate commerce. It is true that no
opponent of child labor appeared to want to strike at all of it.
Agriculture, which accounts for from one-half to two-thirds of it,
was expressly exempted. Child actors, almost negligible in number,
were exempted. Telegraph messengers, so far as the evidence
reveals, although a familiar form of child labor, were in no one's
mind in connection with this prohibition, although the
peculiarities of that service were recognized in allowing them
under certain conditions to be employed at lower than minimum wages
under the Act. [
Footnote 15]
But whether a majority of Congress, had this question come to its
attention, would have regarded messenger service as more like
agriculture in being a relatively inoffensive type of child labor,
or as more like mining and manufacturing, considered more harmful,
is a question on which we have no information whatever.
On the other hand, we find nothing to sustain the Government's
position that "the omission resulted from the realization that the
indirect sanction of forbidding interstate shipment, coupled with
broad statutory definitions," would be construed to eliminate child
labor from interstate commerce. No such realization appears in any
committee
Page 323 U. S. 500
report, in the speech of any sponsor of the bills, nor in debate
either on the part of those supporting or of those opposing the
bills. The only explanation advanced for the hypothesis that
Congress deliberately chose indirection instead of forthright
prohibition is an assumption that there were doubts of its
constitutional power to enact direct legislation. It is true that,
in
Hammer v. Dagenhart, 247 U. S. 251,
this Court had held that an earlier attempt to exclude from
interstate commerce products of mines and mills that employed child
labor was an invalid attempt to reach employment matters within the
control of the states. But even the prevailing opinion in that case
expressly conceded that Congress had ample power to control the
means by which interstate commerce is carried on. 247 U.S. at
247 U. S. 272.
There was never a holding or an intimation in this or any other
decision of this Court that a direct prohibition of child labor in
interstate commerce would not be sustained. Restrictive
interpretation in this field reached its maximum in
Hammer v.
Dagenhart. It was decided by a closely divided Court, and, at
the time this bill was pending, it was undermined by later
decisions and was thought to be marked, even then, for consignment
to the limbo of overruled cases, a prediction that was shortly
fulfilled.
United States v. Darby, 312 U.
S. 100. Moreover, the purpose of the proponents of this
Act to challenge the decision in
Hammer v. Dagenhart and
require this Court to reexamine its soundness is manifest in many
ways. It can hardly be supposed that Congress, while reasserting a
power once denied to it, feared to exercise directly a power often
conceded and never denied.
Our search of legislative history yields nothing to support the
Company's contention that Congress did not want to reach such child
labor as we have here. And it yields no more to support the
Government's contention that Congress wanted to forego direct
prohibition in favor of
Page 323 U. S. 501
indirect sanctions. Indeed, we are unable to say that
elimination of the direct prohibitions from the final form of the
bill was purposeful at all, or that it did not happen from sheer
inadvertence, due to concentration on more vital and controversial
aspects of the legislation. The most that we can make of it is that
no definite policy either way appears in reference to such an
employment as we have in this case, no legislative intent is
manifest as to the facts of this case which we should strain to
effectuate by interpretation. Of course, if, by fair construction,
the indirect sanctions of the Act apply to this employment, courts
may not refuse to enforce them merely because we cannot understand
why a simpler and more direct method was not used. But we take the
Act as Congress gave it to us, without attempting to conform it to
any notions of what Congress would have done if the circumstances
of this case had been put before it.
II. The Government brought this action to reach indirectly child
labor in interstate commerce by bringing it under the prohibition
of Section 12(a) of the Act, which, so far as material, reads
"no producer, manufacturer, or dealer shall ship or deliver for
shipment in commerce any goods produced in an establishment
situated in the United States, in or about which within thirty days
prior to the removal of such goods therefrom any oppressive child
labor has been employed."
Violation of this command is a crime (§§ 15 and 16) punishable
by a fine and imprisonment, and threatened violations may be
restrained by injunction. The Government in this case sought
injunction. Its complaint charges the Western Union with a
violation in that
"defendant has been engaged in shipping telegraph messages in
interstate commerce and in delivering telegraph messages for
shipment in interstate commerce, the said goods having been
produced in its said establishments in
Page 323 U. S. 502
or about which the aforesaid minors were employed, suffered, and
permitted to work within thirty (30) days prior to the removal of
said goods therefrom."
Contention that this section is applicable to the Western Union
is predicated on three steps,
viz.: telegrams are "goods"
within its meaning; the Company "produces" these goods within the
Act because it "handles" them, and transmission is "shipment"
within its terms. If it can maintain all three of these positions,
the Government is entitled to an injunction; if it fails in any
one, admittedly the effort to bring the employment under the Act
must fair.
The Government says messages are "goods" because the Act defines
"goods" as therein used to include, among other things, "articles
or subjects of commerce of any character." § 3(i). Of course,
statutory definitions of terms used therein prevail over colloquial
meanings.
Fox v. Standard Oil Co., 294 U. S.
87,
294 U. S. 95. It
was long ago settled that telegraph lines, when extending through
different states, are instruments of commerce, and messages passing
over them are a part of commerce itself.
Western Union
Telegraph Co. v. James, 162 U. S. 650,
162 U. S. 654.
That "ideas, wishes, orders, and intelligence" are "subjects" of
the interstate commerce in which telegraph companies engage has
also been held.
Western Union Tel. Co. v. Pendleton,
122 U. S. 347,
122 U. S. 356;
cf. Associated Press v. Labor Board, 301 U.
S. 103,
301 U. S. 128.
It is unnecessary to decide whether electric impulses into which
the words of the message are transformed are "goods" within the Act
(
cf. Utah Power & Light Co. v. Pfost, 286 U.
S. 165;
Fisher's Blend Station, Inc. v. State Tax
Commission, 297 U. S. 650;
Electric Bond & Share Co. v. Securities & Exchange
Commission, 303 U. S. 419),
since the complaint is not based on "shipment" of impulses as
"goods," but only of messages. We think telegraphic messages are
clearly "subjects of commerce,"
Page 323 U. S. 503
and hence that they are "goods" under this Act, as alleged in
the complaint.
The next inquiry is whether the Western Union Telegraph Company
is a producer of these goods within the Act. Congress has laid down
a definition that, as used in the Act, "
produced' means
produced, manufactured, mined, handled, or in any other manner
worked on. . . ." § 3(j). The Company, says the Government, not
only "handles" the message, but "works on" it.
The Government contends that, in defining "produced," the
statute intends "handled" or "worked on" to mean not only handling
or working on in relation to producing or making an article ready
to enter interstate transit, but also includes the handling or
working on which accomplishes the interstate transit or movement in
commerce itself. If this construction is adopted, every
transporter, transmitter, or mover in interstate commerce is a
"producer" of any goods he carries. But the statute, while defining
"produced" to mean "handled" or "worked on," has not defined
"handled" or "worked on." These are terms of ordinary speech, and
mean what they mean in ordinary intercourse in this context. They
serve a useful purpose when read to relate to all steps, whether
manufacture or not, which lead to readiness for putting goods into
the stream of commerce. One who packages a product, or bottles a
liquid, or labels, or performs any number of tasks incidental to
preparing for shipment might otherwise escape the Act, for, in a
sense, he neither manufactures, produces, or mines the goods. We
are clear that "handled" or "worked on" includes every kind of
incidental operation preparatory to putting goods into the stream
of commerce.
If we go beyond this and assume that handling for transit
purposes is handling in production, we encounter results which we
think Congress could not have intended.
Page 323 U. S. 504
The definitions of this Act apply to the wage and hour
provisions as well as to the child labor provisions. Section 15(a)
makes it unlawful to transport or ship goods in the production of
which any employee was employed in violation of the wage and hour
provisions. But it makes this exception:
"except that no provision of this Act shall impose any liability
upon any common carrier for the transportation in commerce in the
regular course of its business of any goods
not produced by
such common carrier."
(Italics supplied.) This recognizes a distinction between
handling in transportation and producing, which is entirely put to
naught by the Government's contention that, by definition, everyone
who handles goods in carriage is thereby made a producer. The
exception, then, is as if it read "the Act shall impose no
liability on a common carrier for carrying goods that it does not
carry." One would not readily impute such an absurdity to Congress;
nor can we assume, contrary to the statute, that "produced" means
one thing in one section and something else in another. To construe
those words to mean that handling in carriage or transmission in
commerce makes one a producer makes one of these results
inevitable. Congress, we think, did not intend to obliterate all
distinction between production and transportation. Its artificial
definition, if construed to mean that "handling" and "worked on"
catches up into the category of production every step in putting
the subject of commerce in a state to enter commerce, is a sensible
and useful one, not at odds with any other section of the Act. We
think the Government has not established its contention that the
Western Union is a "producer" of telegraph messages.
A third inquiry remains. Has the Company engaged in "shipping
telegraph messages in interstate commerce and in delivering
telegraph messages for shipment" as alleged? The learned trial
court said, "More troublesome
Page 323 U. S. 505
is the question whether the defendant
shipped' goods in
commerce." But he concluded on the basis of our decisions that the
defendant was a "carrier of messages" to be compared to a railroad
as a "carrier of goods," citing Western Union Telegraph Co. v.
Texas, 105 U. S. 460,
105 U. S. 464;
Pensacola Telegraph Co. v. Western Union Telegraph Co.,
96 U. S. 1. He
thought "ship" synonymous with "transport" and "convey" and hence
held that the Company was "shipping" messages.
The Circuit Court of Appeals, although it sustained the
injunction, took a contrary view of the nature of the enterprise.
It analyzed the technology of transmitting messages. The message,
it said, never leaves the originating office. It is only a text for
sending electrical impulses "which are not only not the sender's
message, but would be totally incomprehensible to him or to the
addressee, if either could perceive them." It said,
"From the foregoing, it is at once apparent that there is not
the least similarity between what the defendant does and the
transportation of goods by a common carrier."
Thus, it cut the ground from under the Government's only
allegation of violation --
i.e., that the Company is
engaged in "shipping" messages. It advanced this theory,
apparently, to answer the Company's contention that, if it was
likened to a carrier, as the District Court thought, it was
entitled to the benefit of the carrier's exemption in Section
15(a)(1). We do not think it is necessary for us to resolve the
interesting but baffling inquiry as to precisely what, if anything,
moves across state lines in the telegraphic process. In its
practical aspects, which concern the public, transmission of
messages is too well known to require analysis, and in its
scientific aspects, which interest the physicist, it is too little
known to permit of it.
The statute applies the indirect sanctions of the Act only to
those who "ship" subjects of commerce. It does not, however, define
"ship." The Government says, "[t]he
Page 323 U. S. 506
verb "ship" is an imprecise word meaning little more than to
send or to transport." The term, not being artificially defined by
statute, is from the ordinary speech of people. Its imprecision to
linguists and scholars may be conceded. But if it is common in the
courts, the marketplaces, or the schools of the country to speak of
shipping of telegram or receiving a shipment of telegrams, we do
not know of it, nor are examples of such usage called to our
attention. Nor, if one departs from the complaint in the case and
adopts the theory of the Court of Appeals, do we think either
scientist or layman would ever speak of "shipping" electrical
impulses. The fact is that, to sustain the complaint, we must
supply an artificial definition of "ship" -- one which Congress had
power to enact, but did not. We do not think "ship" in this Act
applies to intangible messages, which we do not ordinarily speak of
as being "shipped."
Another consideration convinces us that this Act did not
contemplate its application by indirection to such a situation as
we have in hand. Its indirect sanctions are well adapted to the
producer, miner, manufacturer, or handler in preparation for
commerce. They become clumsy and self-defeating when applied to
telegraph companies, railroads, interstate news agencies, and the
like, as this decree demonstrates. The Western Union is not
forbidden by the decree to employ child labor, nor could it be, for
it is not so forbidden by the Act. As construed by the courts
below, what is prohibited is the sending of telegrams -- so long as
it employs child labor and for a period of thirty days after it
quits. This, as the Company observes, is a sanction that the Court
could not permit to become effective. A suspension of telegraphic
service for any period of time would be intolerable. Of course, the
Government says, the Company could escape its effect except for the
thirty-day period by discharging some
Page 323 U. S. 507
twelve percent of its messengers, who are under age but whom
neither the Court nor Congress has forbidden it to employ. It also
suggests that the thirty-day period may be absorbed in delays. Or,
it says, the District Court or Circuit Court of Appeals "may
properly stay the injunction further in order to permit the
transmission of messages until petitioner has a reasonable time to
comply."
Of course, literal compliance could be made only by ceasing to
send messages, since that is all the decree does or could command.
But the Company could and probably would avoid doing what the
decree orders by doing what it does not and cannot order:
viz., discharging the underage part of its messenger
force. This, however, would leave the thirty-day period after our
mandate becomes final and goes down, during which the courts must
stay the force of the injunction, either candidly or by dilatory
tactics, or the Company, by continuing service to the public, would
be in contempt. Even if this were done, courts cannot stay the
provisions under which the sending of messages during such period
is made criminal. We may suppose the Government would not actually
prosecute. But that is only because the sanctions of the Act, if
applied to such a situation, are so impractical that a violation
adjudged by us to be proven by stipulation of the parties as to the
facts would be waived. We think if Congress contemplated
application of this Act to the Western Union, it would have
provided sanctions more suitable than to forbid telegrams to be
sent by the only Company equipped on a nationwide scale to serve
the public in sending them. Nor will we believe without more
express terms than we find here that Congress intended the courts
to issue an injunction which, as a practical matter, they would
have to let become a dead letter, or enforce at such cost to the
public, if a defendant proved
Page 323 U. S. 508
stubborn and recalcitrant. If the indirect sanctions of this Act
were literally to be applied to great agencies of transportation
and communication, the recoil on the public interest would be out
of all proportion to the evil sought to be remedied.
However, the indirect sanction of cutting one's goods off from
the interstate market is one which can be applied to producers as
we have defined them herein effectively and without injury to the
public interest. If such a producer using child labor is refused
facilities to transport his goods, competitors usually come in,
needs are still supplied, and only the offender suffers. These
indirect sanctions can practically and literally be applied to the
miner and the manufacturer with no substantial recoil on the public
interest, and with no gestures by the courts that they cannot
follow through to punish disobedience.
Ascertainment of the intention of Congress in this situation is
impossible. It is to indulge in a fiction to say that it had a
specific intention on a point which never occurred to it. Had the
omission of a direct prohibition of this employment been called to
its attention, it might well have supplied it, for any reason we
can see. Congress, of course, has the right to be indirect where it
could be direct and to be obscure and confusing where it could be
clear and simple. But, had it determined to reach this employment,
we do not think it would have done so by artifice in preference to
plain terms. It is admitted that it is beyond the judicial power of
innovation to supply a direct prohibition by construction. We think
we should not try to reach the same result by a series of
interpretations so far-fetched and forced as to bring into question
the candor of Congress, as well as the integrity of the
interpretative process. After all, this law was passed as the rule
by which employers and workmen must order their daily lives. To
translate this Act by a process of interpretation
Page 323 U. S. 509
into an equivalent of the bills Congress rejected is, we think,
beyond the fair range of interpretation. Declining that, we cannot
sustain the Government's bill of complaint.
Reversed.
[
Footnote 1]
"'Oppressive child labor' means a condition of employment under
which (1) any employee under the age of sixteen years is employed
by an employer (other than a parent or a person standing in place
of a parent employing his own child or a child in his custody under
the age of sixteen years is an occupation other than manufacturing
or mining) in any occupation, or (2) any employee between the ages
of sixteen and eighteen years is employed by an employer in any
occupation which the Chief of the Children's Bureau in the
Department of Labor shall find and by order declare to be
particularly hazardous for the employment of children between such
ages or detrimental to their health or wellbeing. . . ."
29 U.S.C. § 203(l), June 25, 1938, c. 676, § 3(l), 52 Stat.
1061.
[
Footnote 2]
The Act provides:
"After the expiration of one hundred and twenty days from the
date of enactment of this Act, no producer, manufacturer, or dealer
shall ship or deliver for shipment in commerce any goods produced
in an establishment situated in the United States in or about which
within thirty days prior to the removal of such goods therefrom any
oppressive child labor has been employed. . . ."
§ 12(a), 29 U.S.C. § 212(a).
[
Footnote 3]
"Sec. 7. It shall be unlawful for any person, directly or
indirectly "
"(1) to transport or cause to be transported in interstate
commerce, or to aid or assist in transporting, or obtaining
transportation in interstate commerce for, or to ship or deliver or
sell in interstate commerce, or to ship or deliver or sell with
knowledge that shipment or delivery or sale thereof in interstate
commerce is intended, any unfair goods; or"
"(2) to employ under any substandard labor conditions any
employee engaged in interstate commerce or in the production of
goods intended for transportation or sale in violation of clause
(1) of this section."
This was the provision in the bill S. 2475 as reported,
respectively, by the Senate Committee on Education and Labor, July
6, 1937, and by the House Committee on Labor, August 6, 1937.
"Unfair goods" was defined to mean goods produced by any
substandard labor condition, and the latter was defined to include
child labor. §§ 2(a)(11) and (15).
[
Footnote 4]
This was S. 2226, reported in Sen. No. 726, 75th Cong., 1st
Sess. It was incorporated into the Black bill July 31, 1937, 81
Cong.Rec. 7949-51. It provided:
"Sec. 4 [§ 27 in the amended Black bill]. It shall be unlawful
for any person who --"
"(a) has produced goods, wares, or merchandise in any State or
Territory, wholly or in part through the use of child labor, on or
after January 1, 1938; or"
"(b) has taken delivery of such goods, wares, or merchandise in
any State or Territory with notice of their character whether by
purchase or on consignment, as commission merchant, agent for
forwarding or other purposes, or otherwise, to transport or cause
to be transported, in any manner or by any means whatsoever, or aid
or assist in obtaining transportation for or in transporting such
goods, wares, or merchandise in interstate or foreign commerce or
to sell such goods, wares, or merchandise for shipment in
interstate or foreign commerce or with knowledge that shipment
thereof in interstate or foreign commerce is intended."
Other provisions subjected child labor-made goods to the laws of
the states into which they were shipped regardless of their
interstate character, forbade transportation into states in
violation of their laws, and forbade shipment in interstate
commerce of goods not labeled as to their child labor character.
The bill represented the view that several methods of circumventing
Hammer v. Dagenhart, infra should be tried at the same
time, in case any should be held invalid.
[
Footnote 5]
See S. 2475 as reported by House Committee on Labor,
August 6, 1937, H.R. Rep. 1452, 75th Cong., 1st Sess.
[
Footnote 6]
"Sec. 10.(a). No producer, manufacturer, or dealer shall ship or
deliver for shipment in commerce any goods produced in an
establishment situated in the United States in or about which
within 30 days prior to the removal of such goods therefrom any
oppressive child labor has been employed. . . ."
"(b) No employer engaged in commerce in any industry affecting
commerce shall employ any employee under any oppressive child labor
condition."
83 Cong.Rec. 7441; passed,
id. at 7450 (75th Cong., 3d
Sess.).
[
Footnote 7]
S. 2226, identical with the child labor provisions previously
incorporated by the Senate in the Black bill in lieu of the
latter's child labor provisions.
See note 4 supra. 81 Cong.Rec. 9320.
[
Footnote 8]
Conference Report, H.R.Rep. No. 2738, 75th Cong., 3d Sess.,
32.
[
Footnote 9]
See 82 Cong.Rec. 1411-14, 1597-98, 1691-95, 1780-83,
1822; 83 Cong.Rec. 7399-7400.
[
Footnote 10]
See, e.g., Joint Hearings on Fair Labor Standards,
Senate Committee on Labor and House Committee on Education and
Labor, 75th Cong., 1st Sess., 382-84; Hearings on Regulation of
Child Labor, Senate Committee on Interstate Commerce, 75th Cong.,
1st Sess., 60; remarks of Representative Schneider of the House
Committee on Education and Labor, 82 Cong.Rec. 1823, 83 Cong.Rec.
7401. The Chief of the Children's Bureau of the Department of Labor
presented to the Senate Interstate Commerce Committee figures,
based on the 1930 Census, showing the distribution by occupations
of child workers between 10 and 15 years:
Occupation Number Per cent
Agriculture . . . . . . . . . . . . . . . . . . 469,497 70.4
Manufacturing and mechanical industries . . . . 68,266 10.2
Trade . . . . . . . . . . . . . . . . . . . . . 49,615 7.4
Domestic and personal service . . . . . . . . . 46,145 7.0
Clerical occupations. . . . . . . . . . . . . . 16,803 2.5
Transportation. . . . . . . . . . . . . . . . . 8,717 1.3
Extraction of minerals. . . . . . . . . . . . . 1,184 0.2
Other (includes public and professional
service, forestry, and fishing) . . . . . . . 6,891 1.0
Hearings,
supra, p. 60.
Comparable figures based on the 1940 Census (but for the age
group 14-17) are as follows:
Occupation Number Per cent
Agriculture, forestry, fishing. . . . . . . . . 456,966 54.3
Mining. . . . . . . . . . . . . . . . . . . . . 2,769 0.3
Construction. . . . . . . . . . . . . . . . . . 10,746 1.2
Manufacturing . . . . . . . . . . . . . . . . . 104,023 12.3
Transportation, communication,
and other public utilities. . . . . . . . . . 12,103 1.4
Trade . . . . . . . . . . . . . . . . . . . . . 109,687 13.0
Personal services . . . . . . . . . . . . . . . 109,628 13.0
Amusement, recreation, and related services . . 13,013 1.6
Professional and related services . . . . . . . 12,128 1.4
Other . . . . . . . . . . . . . . . . . . . . . 12,944 1.5
Pamphlet,
1940 Census Data on Employment and School
Attendance of Minors 14 through 17 Years of Age (Dept. of
Labor, Children's Bureau, 1943) 14.
Since agriculture was expressly excluded (and this was true of
all versions of child labor legislation reported to the House and
Senate), the child labor clearly covered by the "producing goods
for commerce" formula was, at most, 12-15%, and most of the
remainder was in occupations clearly not covered by that formula,
such as local retailing and service industries. In this light, the
omission of the one or two percent in nonproducing interstate
commerce industries, even if deliberate, would not have been
incongruous.
The following exchange during the Senate Interstate Commerce
Committee hearings is also of interest in view of the Senate's
rejection of the Black-Connery child labor provisions in favor of
the Commerce Committee proposal:
"MISS LENROOT. . . . There has been a decided shift in the
employment of children between the ages of 14 and 16 years from
factories to miscellaneous occupations in trade and service
industries, which would not be covered by any of the bills now
pending before this committee, and which involve very often
employment of children for long hours at very low wages."
"THE CHAIRMAN. Let me ask you this question right there: do you
think newsboys should be prohibited from working? I propound that
question to you because it has been put up to me."
"MISS LENROOT. I think, under any powers that I can see that
Congress has or that it may be construed to have now, it would be
very difficult, if not impossible, to bring newsboys in."
"THE CHAIRMAN. But do you think they should be prohibited from
such employment?"
"MISS LENROOT. I think, if Congress had broad power to legislate
on the subject of child labor, it would be desirable to work out
some standard which would be somewhat different from factory
employment."
"SENATOR MINTON. In other words, you think it is improper to use
newsboys on the streets to sell newspapers?"
"MISS LENROOT. Under a certain age, and under certain
conditions; yes. I would make the age somewhat lower than the age
for factory employment, however."
Hearings,
supra, p. 43.
[
Footnote 11]
Thus, Senator Wheeler, one of the authors of the measure adopted
by the Senate, said,
"We are trying to give you something of a practical nature that
can be passed, that will perhaps not go as far as some of us would
like to see it go, but something which we can uphold as
constitutional, that will affect child labor, stop it, and prevent
it effectively in the factories, particularly in the sweatshops and
southern textile mills. . . . We want to keep them out of the
factories where they are being exploited and are in competition
with men and in competition with women who need work."
Joint Hearings,
supra, note 10 pp. 33-34, 36. Representative Schneider, who was
apparently in charge of the child labor provisions of the Labor
Committee's bill on the floor, reminded the members that, although
the bill went as far as it could, "the child labor that is used
in the production of articles for interstate commerce
constitutes only 25 percent of nonagricultural child labor that
exist today," and hence ratification of the child labor amendment
was still essential. 82 Cong.Rec. 1823 (ital. supplied). And
Senator Thomas, who was one of the Senate managers in the
conference which produced the final bill, interpreted the result of
the compromise as follows in his report to the Senate:
"Neither House nor Senate yielded its convictions, but both
Houses obtained their common objective, which was to abolish
traffic in interstate commerce in the products of child labor and
in the products of underpaid and overworked labor."
83 Cong.Rec. 9163.
[
Footnote 12]
See generally the hearings preceding the enactment of
the Child Labor Act of 1916. Hearings on H.R. 8234, House Committee
on Labor, 64th Cong., 1st Sess.; Hearings on H.R. 8234, Senate
Committee on Interstate Commence, 64th Cong., 1st Sess.
[
Footnote 13]
Act of Sept. 1, 1916, c. 432, § 1, 39 Stat. 675.
[
Footnote 14]
Act of Feb. 24, 1919, c. 18, § 1200, 40 Stat. 1057, 1138.
[
Footnote 15]
"The Administrator . . . shall by regulations or by orders
provide for (1) the employment of learners, of apprentices, and of
messengers employed exclusively in delivering letters and messages
. . . at such wages lower than the minimum wage applicable under
section 6 and subject to such limitations as to time, number,
proportion, and length of service as the Administrator shall
prescribe. . . ."
§ 14, 29 U.S.C. § 214.
MR. JUSTICE MURPHY, dissenting.
By reading into the Fair Labor Standards Act an exception that
Congress never intended or specified, this Court has today granted
the Western Union Telegraph Company a special dispensation to
utilize the channels of interstate commerce while employing
admittedly oppressive child labor. Such a result is reached, to
borrow the words of the majority opinion,
"by a series of interpretations so far-fetched and forced as to
bring into question the candor of Congress as well as the integrity
of the interpretative process."
The opinion of the Court demonstrates that the legislative
history of the Fair Labor Standards Act is inconclusive insofar as
the failure to insert a provision directly prohibiting child labor
in interstate commerce is concerned. But that factor is neither
determinative nor even significant in the setting of this case. The
issue is not whether the child labor provisions of Section 12(a)
apply to a company solely engaged in interstate commerce or in the
transporting of goods in such commerce. Rather, the crucial problem
is whether Western Union, in preparing messages for transmission in
interstate commerce, may fairly be said to be a "producer" of
"goods" which it "ships" in interstate commerce so as to come
within the purview of Section 12(a). That Western Union may also be
the interstate transmitter of messages is beside the point; it is
enough if it is a producer of goods destined for interstate
shipment. Indeed, Section 15(a)(1) expressly envisages just such a
situation. It provides in part that no common carrier shall be
liable under this Act "for the transportation
Page 323 U. S. 510
in commerce in the regular course of its business of any goods
not produced by such common carrier," thereby recognizing that, if
a carrier is actually the "producer" of the "goods" it transports,
it may be visited with the liabilities of Section 12(a).
In approaching the problem of whether Western Union is a
producer of goods shipped in interstate commerce, we should not be
unmindful of the humanitarian purposes which led Congress to adopt
Section 12(a). Oppressive child labor in any industry is a
reversion to an outmoded and degenerate code of economic and social
behavior. In the words of the Chief Executive,
"A self-supporting and self-respecting democracy can plead no
justification for the existence of child labor. . . . All but the
hopelessly reactionary will agree that to conserve our primary
resources of manpower, Government must have some control over . . .
the evil of child labor. . . ."
Message of the President to Congress, May 24, 1937, House Doc.
No. 255 (75th Cong., 1st Sess.) p. 2. Congress sought in Section
12(a) to translate these sentiments from rhetoric to law. That it
may not have done so to the full limits of its constitutional power
is not of controlling significance here. It matters only that
courts should not disregard the legislative motive in interpreting
and applying the statutory provisions that were adopted. If the
existence of oppressive child labor in a particular instance falls
within the obvious intent and spirit of Section 12(a), we should
not be too meticulous and exacting in dealing with the statutory
language. To sacrifice social gains for the sake of grammatical
perfection is not in keeping with the high traditions of the
interpretative process.
The language of Section 12(a), when viewed realistically and
with due regard for its purpose, compels the conclusion that
Western Union has been guilty of a violation of the child labor
provisions. Oppressive child labor conditions
Page 323 U. S. 511
are admitted, and the only issue concerns the application of the
words "goods," "producer," and "ships" to the activities of Western
Union.
1. The opinion of the majority concedes that telegraphic
messages are "subjects of commerce,"
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 229-230,
and hence are "goods" as defined in Section 3(i) of the Act.
2. The majority holds, however, that Western Union is not a
"producer" of goods, even though the term "produced" is defined in
Section 3(j) to include "handled, or in any other manner worked
on." It further holds that the words "handled" or "worked on" refer
only to incidental operations preparatory to putting goods in the
stream of commerce, and that they cannot relate to a "handling" or
"working on" which accomplishes the interstate movement in commerce
itself (which is said to characterize Western Union's activities).
Even if we assume that this distinction is correct, however, it
does not preclude Western Union from being described as a
"producer." Contrary to the view expressed in the majority opinion,
the Government does not ground its case in this respect on a claim
that mere transportation of goods by a carrier such as Western
Union constitutes a "handling" or "working on" so as to make that
carrier a producer. The contention, rather, is that Western Union
employees,
prior to the introduction of the messages into
interstate commerce, "work on" and "handle" the messages. And
that contention would seem to be justified by the facts.
Before the messages actually move in commerce, Western Union
employees aid in the composition of the messages, write them on
blanks, mark the written messages, transform them into electric
impulses, and perform numerous other incidental tasks. In a very
real and literal sense therefore they "handle" and "work on" a
message before it enters the channels of interstate commerce. The
uniqueness
Page 323 U. S. 512
of Western Union insofar as it acts also as the interstate
carrier of these messages does not negative the fact that it
actually processes, and hence "produces," the messages as a preface
to that interstate transit.
3. Finally, the majority does not think that the verb "ship" is
applicable to the transmission either of electrical impulses or
intangible messages, and hence Western Union does not "ship" goods
in commerce within the meaning of Section 12(a). As a matter of
linguistic purism, this conclusion is not without reasonableness.
But proper respect for the legislative intent and the
interpretative process does not demand fastidious adherence to
linguistic purism. This Court does not require that Congress spell
out all types of "goods" or "subjects of commerce" that move in
interstate commerce; no more should it require that Congress spell
out every verb that may be in usage as to various goods or subjects
of commerce. If the verb actually used by Congress may fairly be
interpreted to cover the particular situation in a manner not at
variance with the intent and spirit of the statute, no sound rule
of law forbids such an interpretation.
As a matter of fact, it is unnecessary to strain reality in
order to apply the verb "ship" to the transmission of telegraph
messages. The verb is defined by competent authority to mean "to
transport, or commit for transportation." Webster's New
International Dictionary, 2d Ed. This Court itself has referred to
telegraph companies as engaged in "transportation" of messages.
Western Union Tel. Co. v. Texas, 105 U.
S. 460,
105 U. S. 464.
Since messages are "goods," and since Western Union is the
"producer" of them, there is no difficulty in saying that it
"ships" or "transports" the messages in commerce when its employees
send them across state lines.
Such an interpretation and application of the clear statutory
words are not only realistic, but are in obvious,
Page 323 U. S. 513
accord with the statutory policy of eliminating oppressive child
labor in industries transporting goods and subjects of commerce
across state lines. The natural ease with which these words fit the
activities of Western Union adds weight to the conclusion that
Section 12(a) covers just such a situation as this. There is
nothing in the statute or in its legislative background to suggest
that telegraph companies are exempt, and the consistent
administrative attitude has been that no such exemption exists.
Child Labor Regulation No. 3, issued by the Chief of the Children's
Bureau, U.S. Department of Labor, May 8, 1939; Wage and Hour Field
Instructions, June 4, 1942. It is indisputable that the evils of
oppressive child labor allow no distinction in favor of the
employment of telegraph messengers of tender years.
Cf. United
States v. Rosenwasser, 323 U. S. 360.
Indeed, the reference to messengers in Section 14 of the Act is
evidence of an awareness by Congress that the Act would reach such
persons. If Congress found it necessary to provide in Section 14
for certain exceptions as to minimum wages for messengers, it seems
clear that Congress thought that all other appropriate provisions
of the Act applied to all messengers absent specific exceptions.
Moreover, even Section 14 makes no distinction between messengers
working in and about manufacturing establishments shipping goods in
commerce, who presumably still come within the provisions of
Section 12(a) under the majority's view, and those employed by
telegraph companies. Under these circumstances, we are not
justified in delineating an exception to Section 12(a) that
Congress itself did not see fit to make explicitly.
A word need be said about the Court's fear of enforcing Section
12(a) against Western Union. Pursuant to the Congressional mandate,
the trial court enjoined Western Union from transmitting or
delivering for transmission in commerce "telegraph or other
messages or any other
Page 323 U. S. 514
goods" produced by it in any establishment in or about which,
within 30 days prior to the transmission, there shall have been
employed any oppressive child labor. It is said, however, that this
is a sanction that we dare not permit to become effective, since
the suspension of telegraphic service for 30 days would be
intolerable. Such a sanction is said to be well adapted to the
producer, miner, manufacturer, or handler, but clumsy and
self-defeating when applied to telegraph companies, railroads, and
the like. Convinced by these considerations that the Act did not
contemplate its application to this situation, the Court proceeds
to carve out a judicial exception to Section 12(a) for all
interstate carriers.
However much we may dislike the imposition of Congressional
sanctions against a particular industry or field of endeavor, the
judicial function does not allow us to disregard that which
Congress has plainly and constitutionally decreed, and to formulate
exceptions which we think, for practical reasons, Congress might
have made had it thought more about the problem. To read in
exceptions based upon the nature or importance of the particular
industry or corporation is dangerous precedent. If the suspension
of telegraphic service for 30 days is so intolerable as to justify
lifting the burden of Section 12(a) from the shoulders of Western
Union, can it not be argued with equal fervor that a 30-day
injunction against interstate shipments by an airplane
manufacturer, a munitions plant, or some other industry vital to a
war- or peace-time economy would be likewise intolerable? What
valid distinction in this respect is there between interstate
carriers and manufacturers or producers? Moreover, are we to
examine the competitive situation or degree of importance of a
particular company to determine the amount of intolerableness which
a suspension of interstate transportation might engender? These and
countless other legislative
Page 323 U. S. 515
problems present themselves when we embark upon a course of
fashioning exceptions to a statute according to our own conceptions
of appropriateness of the sanctions of an Act. Such a course is an
open invitation to wholesale veto of valid and reasonable
legislative provisions by means of judicial refusal to apply
statutory enforcement measures. Adherence to the sound rule that
inequities and hardships arising from statutory sanctions are for
Congress, rather than the courts, to remedy by way of amendment to
the statute is desirable and necessary in such a situation.
We are charged with the duty of interpreting and applying acts
of Congress in accordance with the legislative intent. Courts are
not so impotent that they cannot perform that duty and, at the same
time, grant stays or other appropriate relief in the public
interest should the occasion demand it.
See Standard Oil Co. v.
United States, 221 U. S. 1,
221 U. S. 81;
United States v. American Tobacco Co., 221 U. S.
106,
221 U. S.
187-188. Thus, if the injunction is granted here against
Western Union, we will have vindicated to that extent the public
policy against oppressive child labor. If a 30-day suspension of
telegraph messages would unduly harm the public interest, a stay of
the mandate or of the injunction can be granted until at least 30
days have elapsed during which no oppressive child labor has been
employed by Western Union. Thus, by fashioning remedies through
injunctions and stays, we can aid in the elimination of oppressive
child labor without undue hardship on the public. This can and
should be done without abdicating our judicial function and
assuming the rule of the legislature.
MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE RUTLEDGE
join in this dissent.