U.S. Supreme Court
U.S. v. DARBY, 312 U.S. 100 (1941)
312 U.S. 100 312 U.S. 657
Argued Dec. 19, 20, 1940.
Decided Feb. 3, 1941.
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As Amended Feb. 17, 1941
[312 U.S. 100, 102]
Robert H. Jackson, Atty. Gen., and Francis Biddle, Sol. Gen., for appellant.
[312 U.S. 100, 105]
Mr. Archibald B. Lovett, of
Savannah, Ga., for appellee.
[312 U.S. 100, 108]
Mr. Justice STONE delivered the opinion of the Court.
The two principal questions raised by the record in this case are, first,
whether Congress has constitutional power to prohibit the shipment in interstate
commerce of lumber manufactured by employees whose wages are less than a
prescribed minimum or whose weekly hours of labor at that wage are greater than
a prescribed maximum, and, second, whether it has power to prohibit the
employment of workmen in the production of goods 'for interstate commerce' at
other than prescribed wages and hours. A subsidiary question is whether in
connection with such prohibitions Congress can require the employer subject to
them to keep records showing the hours worked each day and week by each of his
employees including those engaged 'in the production and manufacture of goods to
wit, lumber, for 'interstate commerce."
Appellee demurred to an indictment found in the district court for southern
Georgia charging him with violation of 15(a)(1)(2) and (5) of the Fair Labor
Standards Act of 1938, 52 Stat. 1060, 29 U.S.C. 201, et seq., 29 U.S.C.A. 201 et
seq. The district court sustained the demurrer and quashed the indictment and
the case comes here on direct appeal under 238 of the Judicial Code as amended,
28 U.S.C. 345, 28 [312 U.S. 100, 109] U.S.C.A. 345,
and 682, Title 18 U.S.C., 34 Stat. 1246, 18 U.S.C.A. 682, which authorizes an
appeal to this Court when the judgment sustaining the demurrer 'is based upon
the invalidity, or construction of the statute upon which the indictment is
The Fair Labor Standards Act set up a comprehensive legislative scheme for
preventing the shipment in interstate commerce of certain products and
commodities produced in the United States under labor conditions as respects
wages and hours which fail to conform to standards set up by the Act. Its
purpose, as we judicially know from the declaration of policy in 2(a) of the
Act,1 and the reports of Congressional committees proposing the legislation,
S.Rept. No. 884, 75th Cong. 1st Sess .; H.Rept. No. 1452, 75th Cong. 1st Sess.;
H.Rept. No. 2182, 75th Cong. 3d Sess., Conference Report, H.Rept. No. 2738, 75th
Cong. 3d Sess., is to exclude from interstate commerce goods produced for the
commerce and to prevent their production for interstate commerce, under
conditions detrimental to the maintenance of the minimum standards of living
necessary for health and general well-being; and to prevent the use of
interstate [312 U.S. 100, 110] commerce as the
means of competition in the distribution of goods so produced, and as the means
of spreading and perpetuating such substandard labor conditions among the
workers of the several states. The Act also sets up an administrative procedure
whereby those standards may from time to time be modified generally as to
industries subject to the Act or within an industry in accordance with specified
standards, by an administrator acting in collaboration with 'Industry
Committees' appointed by him.
Section 15 of the statute prohibits certain specified acts and 16(a) punishes
willful violation of it by a fine of not more than $10,000 and punishes each
conviction after the first by imprisonment of not more than six months or by the
specified fine or both. Section 15(a)(1) makes unlawful the shipment in
interstate commerce of any goods 'in the production of which any employee was
employed in violation of section 6( 206) or section 7(207)', which provide,
among other things, that during the first year of operation of the Act a minimum
wage of 25 cents per hour shall be paid to employees 'engaged in (interstate)
commerce or in the production of goods for (interstate) commerce,' 6, and that
the maximum hours of employment for employees 'engaged in commerce or in the
production of goods for commerce' without increased compensation for overtime,
shall be forty-four hours a week. 7.
Section 15(a)(2) makes it unlawful to violate the provisions of 6 and 7
including the minimum wage and maximum hour requirements just mentioned for
employees engaged in production of goods for commerce. Section 15(a)(5) makes it
unlawful for an employer subject to the Act to violate 11(c) which requires him
to keep such records of the persons employed by him and of their wages and hours
of employment as the administrator shall prescribe by regulation or order.
[312 U.S. 100, 111] The indictment charges that appellee is engaged, in
the state of Georgia, in the business of acquiring raw materials, which he
manufactures into finished lumber with the intent, when manufactured, to ship it
in interstate commerce to customers outside the state, and that he does in fact
so ship a large part of the lumber so produced. There are numerous counts
charging appellee with the shipment in interstate commerce from Georgia to
points outside the state of lumber in the production of which, for interstate
commerce, appellee has employed workmen at less than the prescribed minimum wage
or more than the prescribed maximum hours without payment to them of any wage
for overtime. Other counts charge the employment by appellee of workmen in the
production of lumber for interstate commerce at wages of less than 25 cents an
hour or for more than the maximum hours per week without payment to them of the
prescribed overtime wage. Still another count charges appellee with failure to
keep records showing the hours worked each day a week by each of his employees
as required by 11(c) and the regulation of the administrator, Title 29, Ch. 5,
Code of Federal Regulations, Part 516, and also that appellee unlawfully failed
to keep such records of employees engaged 'in the production and manufacture of
goods, to-wit lumber, for interstate commerce'.
The demurrer, so far as now relevant to the appeal, challenged the validity
of the Fair Labor Standards Act under the Commerce Clause, Art. 1, 8, cl. 3, and
the Fifth and Tenth Amendments. The district court quashed the indictment in its
entirety upon the broad grounds that the Act, which it interpreted as a
regulation of manufacture within the states, is unconstitutional. It declared
that manufacture is not interstate commerce and that the regulation by the Fair
Labor Standards Act of wages and hours of employment of those engaged in the
manufac- [312 U.S. 100, 112] ture of goods which it
is intended at the time of production 'may or will be' after production 'sold in
interstate commerce in part or in whole' is not within the congressional power
to regulate interstate commerce.
The effect of the court's decision and judgment are thus to deny the power of
Congress to prohibit shipment in interstate commerce of lumber produced for
interstate commerce under the proscribed substandard labor conditions of wages
and hours, its power to penalize the employer for his failure to conform to the
wage and hour provisions in the case of employees engaged in the production of
lumber which he intends thereafter to ship in interstate commerce in part or in
whole according to the normal course of his business and its power to compel him
to keep records of hours of employment as required by the statute and the
regulations of the administrator.
The case comes here on assignments by the Government that the district court
erred insofar as it held that Congress was without constitutional power to
penalize the acts set forth in the indictment, and appellees seek to sustain the
decision below on the grounds that the prohibition by Congress of those Acts is
unauthorized by the commerce clause and is prohibited by the Fifth Amendment.
The appeals statute limits our jurisdiction on this appeal to a review of the
determination of the district court so far only as it is based on the validity
or construction of the statute. United States v. Borden Co., 308
U.S. 188, 193 , 195 S., 60 S.Ct. 182, 185, 186, and cases cited. Hence we
accept the district court's interpretation of the indictment and confine our
decision to the validity and construction of the statute.
The prohibition of shipment of the proscribed goods in interstate commerce.
Section 15(a)(1) prohibits, and the indictment charges, the shipment in
interstate commerce, of goods produced for interstate commerce by employees
whose wages and hours of employment do not [312 U.S. 100,
113] conform to the requirements of the Act. Since this section is not
violated unless the commodity shipped has been produced under labor conditions
prohibited by 6 and 7, the only question arising under the commerce clause with
respect to such shipments is whether Congress has the constitutional power to
While manufacture is not of itself interstate commerce the shipment of
manufactured goods interstate is such commerce and the prohibition of such
shipment by Congress is indubitably a regulation of the commerce. The power to
regulate commerce is the power 'to prescribe the rule by which commerce is to be
governed'. Gibbons v. Ogden, 9 Wheat. 1, 196. It extends not only to those
regulations which aid, foster and protect the commerce, but embraces those which
prohibit it. Reid v. Colorado, 187 U.S. 137 , 23 S.Ct. 92;
Lottery Case (Champion v. Ames), 188 U.S. 321 , 23 S.Ct.
321; United States v. Delaware & Hudson Co., 213 U.S. 366 ,
29 S.Ct. 527; Hoke v. United States, 227 U.S. 308 , 33 S.Ct.
281, 43 L.R.A.,N.S., 906, Ann.Cas.1913E, 905; Clark Distilling Co. v. Western
Maryland R. Co., 242 U.S. 311 , 37 S.Ct. 180, L.R.A.1917B,
1218, Ann.Cas.1917B, 845; United States v. Hill, 248 U.S. 420
, 39 S.Ct. 143; McCormick & Co. v. Brown, 286 U.S. 131 , 52
S.Ct. 522, 87 A.L.R. 448. It is conceded that the power of Congress to prohibit
transportation in interstate commerce includes noxious articles, Lottery Case,
supra; Hipolite Egg Co. v. United States, 220 U.S. 45 , 31
S.Ct. 364; cf. Hoke v. United States, supra; stolen articles, Brooks v. United
States, 267 U.S. 432 , 45 S.Ct. 345, 37 A.L.R. 1407;
Kidnapped persons, Gooch v. United States, 297 U.S. 124 , 56
S.Ct. 395, and articles such as intoxicating liquor or convict made goods,
traffic in which is forbidden or restricted by the laws of the state of
destination. Kentucky Whip & Collar Co. v. Illinois Central R. Co.,
299 U.S. 334 , 57 S.Ct. 277.
But it is said that the present prohibition falls within the scope of none of
these categories; that while the prohibition is nominally a regulation of the
commerce its motive or purpose is regulation of wages and hours of persons
engaged in manufacture, the control of which has been reserved to the states and
upon which Georgia [312 U.S. 100, 114] and some of
the states of destination have placed no restriction; that the effect of the
present statute is not to exclude the prescribed articles from interstate
commerce in aid of state regulation as in Kentucky Whip & Collar Co. v. Illinois
Central R. Co., supra, but instead, under the guise of a regulation of
interstate commerce, it undertakes to regulate wages and hours within the state
contrary to the policy of the state which has elected to leave them unregulated.
The power of Congress over interstate commerce 'is complete in itself, may be
exercised to its utmost extent, and acknowledges no limitations, other than are
prescribed by the constitution.' Gibbons v. Ogden, supra, 9 Wheat. 196. That
power can neither be enlarged nor diminished by the exercise or non-exercise of
state power. Kentucky Whip & Collar Co. v. Illinois Central R. Co., supra.
Congress, following its own conception of public policy concerning the
restrictions which may appropriately be imposed on interstate commerce, is free
to exclude from the commerce articles whose use in the states for which they are
destined it may conceive to be injurious to the public health, morals or
welfare, even though the state has not sought to regulate their use. Reid v.
Colorado, supra; Lottery Case, supra; Hipolite Egg Co. v. United States, supra;
Hoke v. United States, supra.
Such regulation is not a forbidden invasion of state power merely because
either its motive or its consequence is to restrict the use of articles of
commerce within the states of destination and is not prohibited unless by other
Constitutional provisions. It is no objection to the assertion of the power to
regulate interstate commerce that its exercise is attended by the same incidents
which attend the exercise of the police power of the states. Seven Cases v.
United States, 239 U.S. 510, 514 , 36 S.Ct. 190, 191;
Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146,
156 , 40 S.Ct. 106, 108; United States v. Carolene Products Co., 304 U.S.
[312 U.S. 100, 115] 144, 147, 58 S.Ct. 778, 780; United States v.
Appalachian Electric Power Co., 311 U.S. 377 , 61 S.Ct. 291,
decided December 16, 1940.
The motive and purpose of the present regulation are plainly to make
effective the Congressional conception of public policy that interstate commerce
should not be made the instrument of competition in the distribution of goods
produced under substandard labor conditions, which competition is injurious to
the commerce and to the states from and to which the commerce flows. The motive
and purpose of a regulation of interstate commerce are matters for the
legislative judgment upon the exercise of which the Constitution places no
restriction and over which the courts are given no control. McCray v. United
States, 195 U.S. 27 , 24 S.Ct. 769, 1 Ann.Cas. 561;
Sonzinsky v. United States, 300 U.S. 506, 513 , 57 S.Ct.
554, 555, and cases cited. 'The judicial cannot prescribe to the legislative
departments of the government limitations upon the exercise of its acknowledged
power'. Veazie Bank v. Fenno, 8 Wall. 533, 548. Whatever their motive and
purpose, regulations of commerce which do not infringe some constitutional
prohibition are within the plenary power conferred on Congress by the Commerce
Clause. Subject only to that limitation, presently to be considered, we conclude
that the prohibition of the shipment interstate of goods produced under the
forbidden substandard labor conditions is within the constitutional authority of
In the more than a century which has elapsed since the decision of Gibbons v.
Ogden, these principles of constitutional interpretation have been so long and
repeatedly recognized by this Court as applicable to the Commerce Clause, that
there would be little occasion for repeating them now were it not for the
decision of this Court twenty-two years ago in Hammer v. Dagenhart,
247 U.S. 251 , 38 S.Ct. 529, 3 A.L.R. 649, Ann.Cas.1918E, 724. In that
case it was held by a bare majority of the Court over the powerful and now
classic dissent of Mr. Justice Holmes setting forth the fundamental issues
involved, [312 U.S. 100, 116] that Congress was
without power to exclude the products of child labor from interstate commerce.
The reasoning and conclusion of the Court's opinion there cannot be reconciled
with the conclusion which we have reached, that the power of Congress under the
Commerce Clause is plenary to exclude any article from interstate commerce
subject only to the specific prohibitions of the Constitution.
Hammer v. Dagenhart has not been followed. The distinction on which the
decision was rested that Congressional power to prohibit interstate commerce is
limited to articles which in themselves have some harmful or deleterious
property-a distinction which was novel when made and unsupported by any
provision of the Constitution-has long since been abandoned. Brooks v. United
States, supra; Kentucky Whip & Collar Co. v. Illinois Central R. Co., supra;
Electric Bond & Share Co. v. Securities & Exchange Commission, 303
U.S. 419 , 58 S.Ct. 678, 115 A.L.R. 105; Mulford v. Smith,
307 U.S. 38 , 59 S.Ct. 648. The thesis of the opinion that the motive of
the prohibition or its effect to control in some measure the use or production
within the states of the article thus excluded from the commerce can operate to
deprive the regulation of its constitutional authority has long since ceased to
have force. Reid v. Colorado, supra; Lottery Case, supra; Hipolite Egg Co. v.
United States, supra; Seven Cases v. United States, supra, 239 U.S.
514 , 36 S.Ct. 191; Hamilton v. Kentucky Distilleries & Warehouse Co.,
supra, 251 U.S. 156 , 40 S.Ct. 108; United States v.
Carolene Products Co., supra, 304 U.S. 147 , 58 S.Ct. 780.
And finally we have declared 'The authority of the Federal Government over
interstate commerce does not differ in extent or character from that retained by
the states over intrastate commerce'. United States v. Rock Royal Co-Operative,
Inc., 307 U.S. 533, 569 , 59 S.Ct. 993, 1011.
The conclusion is inescapable that Hammer v. Dagenhart, was a departure from
the principles which have prevailed in the interpretation of the commerce clause
both [312 U.S. 100, 117] before and since the
decision and that such vitality, as a precedent, as it then had has long since
been exhausted. It should be and now is overruled.
Validity of the wage and hour requirements. Section 15(a)(2) and 6 and 7
require employers to conform to the wage and hour provisions with respect to all
employees engaged in the production of goods for interstate commerce. As
appellee's employees are not alleged to be 'engaged in interstate commerce' the
validity of the prohibition turns on the question whether the employment, under
other than the prescribed labor standards, of employees engaged in the
production of goods for interstate commerce is so related to the commerce and so
affects it as to be within the reach of the power of Congress to regulate it.
To answer this question we must at the outset determine whether the
particular acts charged in the counts which are laid under 15(a)(2) as they were
construed below, constitute 'production for commerce' within the meaning of the
statute. As the Government seeks to apply the statute in the indictment, and as
the court below construed the phrase 'produced for interstate commerce', it
embraces at least the case where an employer engaged, as are appellees, in the
manufacture and shipment of goods in filling orders of extrastate customers,
manufactures his product with the intent or expectation that according to the
normal course of his business all or some part of it will be selected for
shipment to those customers.
Without attempting to define the precise limits of the phrase, we think the
acts alleged in the indictment are within the sweep of the statute. The obvious
purpose of the Act was not only to prevent the interstate transportation of the
proscribed product, but to stop the initial step toward transportation,
production with the purpose of so transporting it. Congress was not unaware that
[312 U.S. 100, 118] most manufacturing businesses shipping their product
in interstate commerce make it in their shops without reference to its ultimate
destination and then after manufacture select some of it for shipment interstate
and some intrastate according to the daily demands of their business, and that
it would be practically impossible, without disrupting manufacturing businesses,
to restrict the prohibited kind of production to the particular pieces of
lumber, cloth, furniture or the like which later move in interstate rather than
intrastate commerce. Cf. United States v. New York Central R. Co.,
272 U.S. 457, 464 , 47 S.Ct. 130, 132.
The recognized need of drafting a workable statute and the well known
circumstances in which it was to be applied are persuasive of the conclusion,
which the legislative history supports, S.Rept.No. 884 75th Cong.1st Sess., pp.
7 and 8; H.Rept.No. 2738, 75th Cong.3d Sess., p. 17, that the 'production for
commerce' intended includes at least production of goods, which, at the time of
production, the employer, according to the normal course of his business,
intends or expects to move in interstate commerce although, through the
exigencies of the business, all of the goods may not thereafter actually enter
interstate commerce. 2
There remains the question whether such restriction on the production
of goods for commerce is a permissible exercise of the commerce power. The power
of Congress over interstate commerce is not confined to the regulation of
commerce among the states. It extends to those activities intrastate which so
affect interstate commerce or the exercise of the power of Congress over it as
to make regulation of them appropriate means to the attainment of a legitimate
end, the exercise of the granted power of Congress to regulate interstate
commerce. See McCul- [312 U.S. 100, 119] loch v.
Maryland, 4 Wheat. 316, 421. Cf. United States v. Ferger, 250 U.S.
199 , 39 S.Ct. 445.
While this Court has many times found state regulation of interstate
commerce, when uniformity of its regulation is of national concern, to be
incompatible with the Commerce Clause even though Congress has not legislated on
the subject, the Court has never implied such restraint on state control over
matters intrastate not deemed to be regulations of interstate commerce or its
instrumentalities even though they affect the commerce. Minnesota Rate Cases,
230 U.S. 352, 398 , 410 S. et seq., 33 S.Ct. 729, 739, 744, 48
L.R.A.,N.S., 1151, Ann.Cas.1916A, 18, and cases cited. In the absence of
Congressional legislation on the subject state laws which are not regulations of
the commerce itself or its instrumentalities are not forbidden even though they
affect interstate commerce. Kidd v. Pearson, 128 U.S. 1 , 9
S.Ct. 6; Bacon v. Illinois, 227 U.S. 504 , 33 S.Ct. 299;
Heisler v. Thomas Colliery Co., 260 U.S. 245 , 43 S.Ct. 83;
Oliver Iron Mining Co. v. Lord, 262 U.S. 172 , 43 S.Ct. 526.
But it does not follow that Congress may not by appropriate legislation
regulate intrastate activities where they have a substantial effect on
interstate commerce. See Santa Cruz Fruit Packing Co. v. National Labor
Relations Board, 303 U.S. 453, 466 , 58 S.Ct. 656, 660. A
recent example is the National Labor Relations Act, 29 U.S.C.A . 151 et seq.,
for the regulation of employer and employee relations in industries in which
strikes, induced by unfair labor practices named in the Act, tend to disturb or
obstruct interstate commerce. See National Labor Relations Board v. Jones &
Laughlin Steel Corp., 301 U.S. 1, 38 , 40 S., 57 S.Ct. 615,
625, 108 A.L.R. 1352; National Labor Relations Board v. Fainblatt,
306 U.S. 601, 604 , 59 S.Ct. 668, 670, and cases cited. But long before
the adoption of the National Labor Relations Act, this Court had many times held
that the power of Congress to regulate interstate commerce extends to the
regulation through legislative action of activities in-
[312 U.S. 100, 120] trastate which have a substantial effect on the
commerce or the exercise of the Congressional power over it. 3
In such legislation Congress has sometimes left it to the courts to
determine whether the intrastate activities have the prohibited effect on the
commerce, as in the Sherman Act, 15 U.S.C.A. 1-7, 15 note. It has sometimes left
it to an administrative board or agency to determine whether the activities
sought to be regulated or prohibited have such effect, as in the case of the
Interstate Commerce Act, 49 U.S.C.A. 1 et seq., and the National Labor Relations
Act or whether they come within the statutory definition of the prohibited Act
as in the Federal Trade Commission Act, 15 U.S.C.A. 41 et seq. And sometimes
Congress itself has said that a particular activity affects the commerce as it
did in the present act, the Safety Appliance Act, 15 U.S.C.A. 1 et seq., and the
Railway Labor Act, 45 U.S.C.A. 181 et seq. In passing on the validity of
legislation of the class last mentioned the only function of courts is to
determine whether the particular activity regulated or prohibited is within the
reach [312 U.S. 100, 121] of the federal power. See
United States v. Ferger, supra; Virginian R. Co. v. System Federation,
300 U.S. 515, 553 , 57 S.Ct. 592, 602.
Congress, having by the present Act adopted the policy of excluding from
interstate commerce all goods produced for the commerce which do not conform to
the specified labor standards, it may choose the means reasonably adapted to the
attainment of the permitted end, even though they involve control of intrastate
activities. Such legislation has often been sustained with respect to powers,
other than the commerce power granted to the national government, when the means
chosen, although not themselves within the granted power, were nevertheless
deemed appropriate aids to the accomplishment of some purpose within an admitted
power of the national government. See Ruppert, Inc., v. Caffey, 251
U.S. 264 , 40 S.Ct. 141; Everard's Breweries v. Day, 265
U.S. 545, 560 , 44 S.Ct. 628, 631; Westfall v. United States,
274 U.S. 256, 259 , 47 S.Ct. 629. As to state power under the Fourteenth
Amendment, compare Otis v. Parker, 187 U.S. 606, 609 , 23
S.Ct. 168; St. John v. New York, 201 U.S. 633 , 26 S.Ct.
554, 5 Ann.Cas. 909; Purity Extract & Tonic Company v. Lynch, 226
U.S. 192, 201 , 202 S., 33 S.Ct. 44, 45, 46. A familiar like exercise of
power is the regulation of intrastate transactions which are so commingled with
or related to interstate commerce that all must be regulated if the interstate
commerce is to be effectively controlled. Shreveport Case, 234 U.S.
342 , 34 S.Ct. 833; Wisconsin Railroad Comm. v. Chicago, B. & Q.R. Co.,
257 U.S. 563 , 42 S.Ct. 232, 22 A.L.R. 1086; United States v. New York
Central R.R. Co., supra, 272 U.S. 464 , 47 S.Ct. 132; Currin
v. Wallace, 306 U.S. 1 , 59 S.Ct. 379; Mulford v. Smith,
supra. Similarly Congress may require inspection and preventive treatment of all
cattle in a disease infected area in order to prevent shipment in interstate
commerce of some of the cattle without the treatment. Thornton v. United States,
271 U.S. 414 , 46 S.Ct. 585. It may prohibit the removal, at destination,
of labels required by the Pure Food & Drugs Act, 21 U.S.C.A. 1 et seq., to be
affixed to ar- [312 U.S. 100, 122] ticles
transported in interstate commerce. McDermott v. wisconsin, 228
U.S. 115 , 33 S.Ct. 431, 47 L.R.A.,N.S., 984, Ann.Cas.1915A, 39. And we
have recently held that Congress in the exercise of its power to require
inspection and grading of tobacco shipped in interstate commerce may compel such
inspection and grading of all tobacco sold at local auction rooms from which a
substantial part but not all of the tobacco sold is shipped in interstate
commerce. Currin v. Wallace, supra, 306 U.S. 11 , 59 S.Ct.
385, and see to the like effect United States v. Rock Royal Co-Op., supra,
307 U.S. 568 , 59 S.Ct. 1010, note 37.
We think also that 15[a] [312 U.S. 100, 2] , now
under consideration, is sustainable independently of 15(a)(1), which prohibits
shipment or transportation of the proscribed goods. As we have said the evils
aimed at by the Act are the spread of substandard labor conditions through the
use of the facilities of interstate commerce for competition by the goods so
produced with those produced under the prescribed or better labor conditions;
and the consequent dislocation of the commerce itself caused by the impairment
or destruction of local businesses by competition made effective through
interstate commerce. The Act is thus directed at the suppression of a method or
kind of competition in interstate commerce which it has in effect condemned as
'unfair', as the Clayton Act, 38 Stat. 730, has condemned other 'unfair methods
of competition' made effective through interstate commerce. See Van Camp & Sons
v. American Can Co., 278 U.S. 245 , 49 S.Ct. 112, 60 A.L.R.
1060; Federal Trade Comm. v. R. F. Keppel & Bro., 291 U.S. 304
, 54 S.Ct. 423.
The Sherman Act and the National Labor Relations Act are familiar examples of
the exertion of the commerce power to prohibit or control activities wholly
intrastate because of their effect on interstate commerce. See as to the Sherman
Act, Northern Securities Company v. United States, 193 U.S. 197
, 24 S.Ct. 436; Swift & Co. v. United States, 196 U.S. 375 ,
25 S.Ct. 276; United States v. Patten, 226 U.S. 525 , 33
S.Ct. 141, 44 L.R.A.,N.S., 325; United Mine Workers v. Coronado Coal Co.,
259 U.S. 344 , 42 S.Ct. 570, 27 A.L.R. 762; Local
[312 U.S. 100, 123] 167 v. United States, 291 U.S. 293
, 54 S.Ct. 396; Stevens Co. et al. v. Foster & Kleiser Co. et al.,
311 U.S. 255 , 61 S.Ct. 210, decided December 9, 1940. As to the National
Labor Relations Act, see National Labor Relations Board v. Fainblatt, supra, and
The means adopted by 15(a)(2) for the protection of interstate commerce by
the suppression of the production of the condemned goods for interstate commerce
is so related to the commerce and so affects it as to be within the reach of the
commerce power. See Currin v. Wallace, supra, 306 U.S. 11 ,
59 S.Ct. 385. Congress, to attain its objective in the suppression of nationwide
competition in interstate commerce by goods produced under substandard labor
conditions, has made no distinction as to the volume or amount of shipments in
the commerce or of production for commerce by any particular shipper or
producer. It recognized that in present day industry, competition by a small
part may affect the whole and that the total effect of the competition of many
small producers may be great. See H. Rept. No. 2182, 75th Cong. 1st Sess., p. 7.
The legislation aimed at a whole embraces all its parts. Cf. National Labor
Relations Board v. Fainblatt, supra, 306 U.S. 606 , 59 S.Ct.
So far as Carter v. Carter Coal Co., 298 U.S. 238 , 56
S.Ct. 855, is inconsistent with this conclusion, its doctrine is limited in
principle by the decisions under the Sherman Act and the National Labor
Relations Act, which we have cited and which we follow. See, also, Sunshine
Anthracite Coal Co. v. Adkins, 310 U.S. 381 , 60 S.Ct. 907;
Currin v. Wallace, supra; Mulford v. Smith, supra; United States v. Rock Royal
Co-Op., supra; Clover Fork Coal Co. v. National Labor Relations Board, 6 Cir.,
97 F.2d 331; National Labor Relations Board v. Crowe Coal Co., 8 Cir., 104 F.2d
633; National Labor Relations Board v. Good Coal Co., 6 Cir., 110 F.2d 501.
Our conclusion is unaffected by the Tenth Amendment which provides: 'The
powers not delegated to the United States by the Constitution, nor prohibited by
it to the [312 U.S. 100, 124] States, are reserved
to the States respectively, or to the people'. The amendment states but a truism
that all is retained which has not been surrendered. There is nothing in the
history of its adoption to suggest that it was more than declaratory of the
relationship between the national and state governments as it had been
established by the Constitution before the amendment or that its purpose was
other than to allay fears that the new national government might seek to
exercise powers not granted, and that the states might not be able to exercise
fully their reserved powers. See e.g., II Elliot's Debates, 123, 131; III id.
450, 464, 600; IV id. 140, 149; I Annals of Congress, 432, 761, 767-768; Story,
Commentaries on the Constitution, secs. 1907, 1908.
From the beginning and for many years the amendment has been construed as not
depriving the national government of authority to resort to all means for the
exercise of a granted power which are appropriate and plainly adapted to the
permitted end. Martin v. Hunter's Lessee, 1 Wheat. 304, 324, 325; McCulloch v.
Maryland, supra, 4 Wheat. 405, 406; Gordon v. United States, 117 U.S. Appendix,
697, 705; Lottery Case, supra; Northern Securities Co. v. United States, supra,
193 U.S. 344, 345 , 24 S.Ct. 459, 460; Everard's Breweries v. Day, supra,
265 U.S. 558 , 44 S.Ct. 631; United States v. Sprague, 282
U.S. 716, 733 , 51 S.Ct. 220, 222, 71 A.L.R. 1381; see United States v.
The Brigantine William, 28 Fed.Cas. 614, 622, No. 16,700. Whatever doubts may
have arisen of the soundness of that conclusion they have been put at rest by
the decisions under the Sherman Act and the National Labor Relations Act which
we have cited. See, also, Ashwander v. Tennessee Valley Authority,
297 U.S. 288, 330 , 331 S., 56 S.Ct. 466, 475; Wright v. Union Central
Ins. Co., 304 U.S. 502, 516 , 58 S.Ct. 1025, 1033.
Validity of the requirement of records of wages and hours. 15(a)(5) and
11(c). These requirements are incidental to those for the prescribed wages and
[312 U.S. 100, 125] hours, and hence validity of the former turns on
validity of the latter. Since, as we have held, Congress may require production
for interstate Commerce to conform to those conditions, it may require the
employer, as a means of enforcing the valid law, to keep a record showing
whether he has in fact complied with it. The requirement for records even of the
intrastate transaction is an appropriate means to the legitimate end. See
Baltimore & Ohio R. Co. v. Interstate Commerce Commission, 221 U.S.
612 , 31 S.Ct. 621; Interstate Commerce Commission v. Goodrich Transit
Co., 224 U.S. 194 , 32 S.Ct. 436; Chicago Board of Trade v.
Olsen, 262 U.S. 1, 42 , 43 S.Ct. 470, 479.
Validity of the wage and hour provisions under the Fifth Amendment. Both
provisions are minimum wage requirements compelling the payment of a minimum
standard wage with a prescribed increased wage for overtime of 'not less than
one and one-half times the regular rate' at which the worker is employed. Since
our decision in West Coast Hotel Co. v. Parrish, 300 U.S. 379
, 57 S.Ct. 578, 108 A.L.R. 1330, it is no longer open to question that the
fixing of a minimum wage is within the legislative power and that the bare fact
of its exercise is not a denial of due process under the Fifth more than under
the Fourteenth Amendment. Nor is it any longer open to question that it is
within the legislative power to fix maximum hours. Holden v. Hardy,
169 U.S. 366 , 18 S.Ct. 383; Muller v. Oregon, 208 U.S. 412
, 28 S.Ct. 324, 13 Ann.Cas. 957; Bunting v. Oregon, infra; Baltimore & Ohio R.
Co. v. Interstate Commerce Commission, supra. Similarly the statute is not
objectionable because applied alike to both men and women. Cf. Bunting v.
Oregon, 243 U.S. 426 , 37 S.Ct. 435, Ann.Cas.1918A, 1043.
The Act is sufficiently definite to meet constitutional demands. One who
employs persons, without conforming to the prescribed wage and hour conditions,
to work on goods which he ships or expects to ship across state
[312 U.S. 100, 126] lines, is warned that he may be subject to the
criminal penalties of the Act. No more is required. Nash v. United States,
229 U.S. 373, 377 , 33 S. Ct. 780, 781.
We have considered, but find it unnecessary to discuss other contentions.
[ Footnote 1 ] 'Sec. 2 ( 202). (a) The Congress hereby
finds that the existence, in industries engaged in commerce or in the production
of goods for commerce, of labor conditions detrimental to the maintenance of the
minimum standard of living necessary for health, efficiency, and general
well-being of workers (1) causes commerce and the channels and instrumentalities
of commerce to be used to spread and perpetuate such labor conditions among the
workers of the several States; (2) burdens commerce and the free flow of goods
in commerce; (3) constitutes an unfair method of competition in commerce; (4)
leads to labor disputes burdening and obstructing commerce and the free flow of
goods in commerce; and (5) interferes with the orderly and fair marketing of
goods in commerce.'
Section 3(b) defines 'commerce' as 'trade, commerce, transportation,
transmission, or communication among the several States or from any State to any
place outside thereof.'
[ Footnote 2 ] Cf. Administrator's Opinion,
Interpretative Bulletin No. 5, 1940 Wage and Hour Manual, p. 131 et seq.
[ Footnote 3 ] It may prohibit wholly intrastate
activities which, if permitted, would result in restraint of interstate
commerce. Coronado Coal Co. v. United Mine Workers, 268 U.S. 295,
310 , 45 S.Ct. 551, 556; Local 167 v. United States, 291
U.S. 293, 297 , 54 S.Ct. 396, 398. It may regulate the activities of a
local grain exchange shown to have an injurious effect on interstate commerce.
Chicago Board of Trade v. Olsen, 262 U.S. 1 , 43 S.Ct. 470.
It may regulate intrastate rates of interstate carriers where the effect of the
rates is to burden interstate commerce. Houston, E. & W. Texas R. Co. v. United
States, 234 U.S. 342 , 34 S.Ct. 833; Railroad Commission of
Wisconsin v. Chicago, Burlington & Quincy R. Co., 257 U.S. 563
, 42 S.Ct. 232, 22 A.L.R. 1086; United States v. Louisiana, 290
U.S. 70, 74 , 54 S.Ct. 28, 31; Florida v. United States, 292
U.S. 1 , 54 S.Ct. 603. It may compel the adoption of safety appliances on
rolling stock moving intrastate because of the relation to and effect of such
appliances upon interstate traffic moving over the same railroad. Southern R.
Co. v. United States, 222 U.S. 20 , 32 S.Ct. 2. It may
prescribe maximum hours for employees engaged in intrastate activity connected
with the movement of any train, such as train dispatchers and telegraphers.
Baltimore & Ohio R. Co. v. Interstate Commerce Commission, 221 U.S.
612, 619 , 31 S.Ct. 621, 625.