U.S. Court of Appeals for the Seventh Circuit, 1949

Lee v. Hercules Powder Co.

U.S. Court of Appeals for the Seventh Circuit · Decided January 21, 1949 · Kerner, Lindley, Major

171 F.2d 950; 1949 U.S. App. LEXIS 3439 (Federal Reporter, Second Series)

Counsel

Alfred G. Goldberg and Padway, Goldberg & Previant, all of Milwaukee, Wis., for plaintiffs-appellants. •, William J. P. Aberg, George G. Blake, and Aberg, Bell, Blake & Conrad, all of Madison, Wis., for defendants-respondents., Tom C. Clark, Atty Gen., H. G. Morison, Asst. Atty. Gen., Charles H. Cashin, U. S. Atty., of Madison, Wis., Enoch E. Ellison, Sp. Asst, to Atty. Gen., and Johanna M. D’Amico, Atty., . Department of Justice, of Washington, D. C., for the United States as Intervenor.

Cases that cite this one

5 later published cases cite this decision.

Leo Feist, Inc. v. Apollo Records, N. Y. Corp. (District Court, S.D. New York 1969)
Moss v. Hawaiian Dredging Co. Larsen v. Flood Bros. (9th Cir. 1951)
Bumpus v. Remington Arms Co., Inc (8th Cir. 1950)
Aniasco, Florentino v. Ahukini Terminals Ltd. (United States District Court for the District of Hawaii 1950)
Thomas v. Carnegie-Illinois Steel Corp. (3d Cir. 1949)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

PER CURIAM.

This appeal involves two suits instituted by the plaintiffs on behalf of themselves and all other employees similarly situated, to recover overtime compensation allegedly due under the provisions of the Fair Labor Standards Act of 1938, Act of June 25, 1938, Ch. 676, 52 Stat. 1060, as amended, 29 U.S.C.A. §§ 201-219. Claims asserted are for time spent before the scheduled starting time and after the scheduled waiting time on the premises of the defendant, in traveling and in preliminary preparation for productive work.

Upon the enactment of the Portal-to-Portal Act of 1947, Act of May 14, 1947, Ch. 52, 61 Stat. 84, 29 U.S.C.A. § 251-262, the defendant moved to dismiss the suits, which motion after a hearing was allowed and a judgment rendered, from whence this appeal comes.

The sole error which the plaintiffs urge as a basis for reversal is that the Portal-to-Portal Act is unconstitutional in that the plaintiffs are deprived of their property without due process of law, in contravention of the Fifth Amendment to the Constitution of the United States. Oral argument in this court was waived by the parties and the cause submitted upon written briefs. The United States of America by its Attorney General was granted leave to intervene and has filed a brief.

The constitutionality of the Act under attack has been sustained by three Circuit Courts of Appeals, and in two of such cases certiorari was denied by the Supreme Court. Seese v. Bethlehem Steel Co., 4 Cir., 168 F.2d 58; Battaglia v. General Motors, Inc., 2 Cir., 169 F.2d 254, certiorari denied by the Supreme Court, 69 S.Ct. 236; Fisch v. General Motors, Inc., and Bateman v. Ford Motor Co., 6 Cir., 169 F.2d 266, certiorari denied by the Supreme Court, 69 S.Ct. 405. A large number of District Courts have reached the same conclusion as is shown in the footnote, 168 F.2d at page 61, of the Seese case.

The constitutionality of the instant Act has been accorded such universal judicial approval that no good purpose could be served in discussing the attacks which are here made upon if. Every argument which the plaintiffs make has been rejected by the courts over and over again.

We agree that the Act is constitutional. The judgment appealed from is, therefore, affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.