Walling v. Shenandoah-Dives Mining Co.

134 F.2d 395, 1943 U.S. App. LEXIS 3573

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 8, 1943
• Docket: 2623
• Status: Published

Opinions

HUXMAN, Circuit Judge.

This action was instituted in the United States District Court for the District of Colorado by the administrator of the Wage and Hour Division 'of the United States Department of Labor to enjoin the Shenandoah-Dives Mining Company from violating provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. The complaint alleged violations of the Act extending over a period of three years. In a supplemental answer, the company alleged that about six months after the institution of the action it entered into a new contract with the bargaining representatives of its employees, which superseded the contract of which the administrator complained. It alleged that the new contract fully complied with the Act, and that, therefore, the controversy had become moot.

At a pretrial conference, counsel for the company, while contending that the original contract was in compliance, further stated that the new contract was in full compliance with the Act; that it was entered into in good faith and was intended to be a permanent arrangement with no thought or desire either to change the wage scale oi-go back to the former scale or plan set up in the challenged contract.

Counsel for the administrator admitted that the new contract was in full compliance and stated that they did not dispute or challenge the statement of counsel for the company that it intended in good faith to comply with the Act. It must therefore be assumed that at the time of trial the company was in full compliance in good faith with the provisions of the Act.

The trial court found that the new contract fully complied with the Act; that it was entered into without any purpose of subterfuge; that the administrator made no objections to the new contract; and that the controversy had become moot.

The question presented is whether, under these circumstances, the administrator is entitled to an injunction as a matter of right when all violations have ceased and there is no reason to assume that the company will violate the Act in the future.

Under Article 3, Section 2 of the Constitution, the United States federal courts have' jurisdiction to hear and determine “cases and contrqversies.” A moot question does not present a case or controversy within the meaning of the Constitution. When in the course of a trial the matter in controversy comes to an end, either by an act of one or both of the parties or by operation of law, the question becomes moot and the court is without further jurisdiction in the matter. In United States v. Alaska S. S. Co., 253 U.S. 113, 40 S.Ct. 448, 449, 64 L.Ed. 808, the Supreme Comt said: “* * * It is a settled principle in this court that it will determine onL actual matters in controversy essential to the decision of the particular case before it. Where by an act of the parties, or a subsequent law, the existing controversy has come to an end, the case becomes moot and should be treated accordingly. However convenient it might be to have decided the question of the power of the Commission to require the carriers to comply with an order prescribing bills of lading, this court ‘is not empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it. * * * ’ [People of State of] California v. San Pablo & Tulare R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747. * * * ”

The difficult problem in cases of this character is to determine when the actual controversy has ceased and come to an end. The question whether cessation of unlawful practices subsequent to the institution of an action under an Act, renders the controversy moot, is not free from difficulty. Both parties cite numerous authorities in support of their position. A careful analysis of these decisions dissolves most of the apparent conflict in them.

In those cases in which an injunction was granted notwithstanding that the challenged practices had ceased, it generally appeared that there remained the possibility of a resumption of the challenged acts or the possibility of future violations or a question as to the validity of the Act or the administrative regulation, or some other matter of possible dispute between the parties. In Southern Pacific Terminal Co. v. I. C. C., 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310, the court recognized the general rule that a court will not entertain a moot question, but held that even though the order of the commission had expired, the question was not moot where interests of a public character were asserted under conditions that might be immediately repeated. Sears, Roebuck & Co. v. Federal Trade Commission, 7 Cir, 258 F. 307, 310, 6 A.L.R. 358, involved an injunctive order of the commission. The company had complied with the order; in fact, it had discontinued the practices complained of before the order was made. In tipholding the order, the court said: “Here, no assurance is in sight that petitioner, if it could shake respondent’s hand from its shoulder, would not continue its former course.”

In Guarantee Veterinary Co. v. Federal Trade Commission, 2 Cir., 285 F. 853, it appeared that there was no assurance that the company would not return to its objectionable practices. In Fairyfoot Products Co. v. Federal Trade Commission, 7 Cir., 80 F.2d 684, the Board ordered the company to cease and desist from certain unfair trade practices. The company filed a form of compliance, attaching certain conditions thereto. Under these circumstances the court held that the discontinuance was not a bar to the order. The case of United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007, involved the validity of an order requiring railroad companies to dissolve an association, and adjudged illegal and void a certain agreement between the railroad companies. The railroad companies did not admit the illegality of the agreement, nor allege their purpose not to enter into a similar one in the immediate future. A number of cases have held that where, either by the conduct of the parties or by operation of law, the existing controversy has come to an end, the case has become moot. People of State of California v. San Pablo & T. R. Co, 149 U.S. 308, 13 S.Ct. 876, 37 L.Ed. 747; Fleming v. National Bank of Commerce, D.C., 41 F.Supp. 833; Walling v. Builders’ Veneer & Woodwork Co., D.C., 45 F.Supp. 808; Fleming v. Phipps, D.C., 35 F.Supp. 627; Fleming v. Lincoln Loose Leaf Warehouse Co.,¹ Fleming v. Kull, D.C.E.D.Tex. June 16, 1941¹.

It is the duty of the administrator to enforce the provisions of the Act and compel compliance therewith. An injunction may not be employed to punish past violations or to simply establish that violations had occurred. Its function is to stop existing violations or prevent further infractions if there is reason to believe that they may occur.

If issues are joined in an action in which the plaintiff alleges that the defendant is violating provisions of the Act or there is reason to believe that he will violate them, there is present a justiciable controversy. But if during the proceedings violations cease and the accused admittedly is in full compliance, without reason to believe that future violations will occur, the justiciable controversy disappears and the question becomes moot. It would seem to be an idle gesture to enjoin violations of the Act when they have ceased and there is no reason to fear that they will again be renewed. When such a situation arises, it is the duty of the trial 'court to ascertain if there is reason to fear future violations. The court, in the discharge of this function, is invested with a sound discretion in reaching its conclusion as- to whether an injunction should or should not be issued, and its decision will not be disturbed on appeal unless it appears that there has been an abuse of discretion.

An examination of the record in this case leads us to conclude that here there was no abuse of discretion.

The judgment of the court will therefore be affirmed.

1 No opinion for publication.