Walling v. Connecticut Co.

154 F.2d 552, 1946 U.S. App. LEXIS 2086

• Court: Court of Appeals for the Second Circuit
• Decided: March 29, 1946
• Docket: 221
• Status: Published

Opinion

FRANK, Circuit Judge.

There is little to add to what was said in the opinion below. Aside from § 13(a) (9), the employees are obviously within the Act, without regard to the percentage of power sold for use in interstate commerce. 1 Defendant’s contention comes to this: Since it is a “local trolley carrier,” none of its employees is covered by the Act because § 13(a) (9) expressly exempts “any employee” of such a carrier. Literally, that contention is correct. But it would mean that, no matter in what business, however extraneous to its functioning as a “local trolley carrier,” defendant engaged, those employed in that extraneous business would be exempt. The policy of the Act, disclosed in its history, precludes the acceptance of such a literal construction. 2

Affirmed.

1 Mabee v. White Plains Publishing Co. Inc., 66 S.Ct. 511.

2 Markham v. Cabell, 66 S.Ct. 193; A. H. Phillips, Inc., v. Walling, 324 U.S. 490, 493, 497, 498, 65 S.Ct. 807, 157 A.L.R. 876; Walling v. Jacksonville Paper Co., 317 U.S. 564, 571, 63 S.Ct. 332, 87 L.Ed. 460; Roland Electrical Co. v. Walling, 66 S.Ct. 413; Phillips v. Star Overall Co., 2 Cir., 149 F.2d 416, 420; Collins v. Kidd Dairy & Ice Co., 5 Cir., 132 F.2d 79, 80; Davis v. Goodman Lumber Co., 4 Cir., 133 F.2d 52, 54; Walling v. Peoples Packing Co., 10 Cir., 132 F.2d 236.