No. 2741 | 5th Cir. | Apr 5, 1915
(after stating the facts as above).
“Sec. 2. That it shall be unlawful for any common, carrier, its officers or agents, subject to this act to require or permit any employé subject to this act to be or remain on duty for a longer period than sixteen consecutive! hours, and whenever any such employé of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted again to go on duty unül he has had at least ten consecutive hours off duty; and no such employé who has been on duty sixteen hours in the aggregate in any twenty-four hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off' duty: Provided, that no operator, train dispatcher, or other employé who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four hour period in all towers, offices, places, and stations continuously operated night and day, nor for a Longer period than thirteen hours in all towers, offices, places, and stations operated only during the day time, except in case of emergency, when the employés named in this proviso may be permitted to be and remain on duty for four additional hours in a twenty-four hour period on not exceeding three days in any week: Provided further, the Interstate Commerce Commission may after full hearing in a particular case and for good cause shown extend the period within which a common carrier shall comply with the provisions of this piroviso as to such case.”
It will be observed that the first part of the section refers to em-ployés generally, subject to the act, and renders it unlawful for a carrier to require or permit any employé to be or remain on duty for a longer period than 16 consecutive hours, etc. The proviso, however, excepts operators, train dispatchers, and other employés, who by the use of the telegraph or telephone transmit, report, etc., orders pertaining to or affecting train movements, from the general language thus employed and provides for them a special rule. For reasons deemed wise by the Congress, it was thought that telegraph operators, train dispatchers, and oth'er employés of that class should have shorter hours for work and longer intervals of rest; and hence the provision directly applicable to them, that their work hours should be limited to 9 and 13, respectively, accordingly as they might be employed in towers, offices, places, and stations continuously operated night and day, or in towers, offices, etc., operated only during the daytime.
The purpose of adding the provisó was to prescribe shorter hours for work for telegraph and telephone operators, and other employés, whose primary and principal duty require them to operate telegraphic instruments and telephones for transmitting, etc., orders affecting train movements generally. And that such construction is correct is evidenced by the requirement that such employés must perform their duties at a fixed place and that their hours of service at such place shall
“Provided, that no-operator,” etc., “shall be required or permitted to be or remain on- duty for a longer period,” etc., “in all towers, offices, places ahd stations,” etc.
—thus evidencing the intention that such employes must have a fixed place for work, and at such place they should not be required or permitted to work a longer time than the number of hours prescribed. If the proviso be construed to include a conductor, what number of hours, it may be asked, shall he be permitted to work during the 24-hour period? Shall it be 16, 13, or 9 hours? Having regard for the language óf the proviso, it will be scarcely possible to give a satisfactory reply to the question — a difficulty which affords additional ground for holding that as to such employé the proviso is altogether inapplicable.
It seems to us that it would plainly violate accepted canons for construing statutes to include in the proviso a train conductor, having no fixed place for work except on a moving train, and who, under the first clause of section 2, may be required or permitted to work for the period of 16 hours. His primary and chief duty requires him to look after his train, and stopping at a station to transmit or receive an order, affecting his immediate train, is a mere incidental service, which cannot operate to classify him as a telegraph or telephone operator or train dispatcher. The contention of counsel for the government is that train conductors are included in the words-of the proviso, “or other employe,” who by the use of the telegraph or telephone dispatches reports, etc. We have endeavored to show that it was not the intention of the lawmakers to so include them.
“In the enumeration of particulars, general and comprehensive terms are sometimes used, in the construction of which reason and good sense require that, if you would not violate the intention of the writer, their meaning must be restricted to things of a like nature and description, with the particulars among which they are found.” 3 Words and Phrases, 2328.
Or, to state the rule in somewhat different language:
“Ejusdem generis means of the same kind or species. The words are used to designate a rule of construction that: ‘When an author makes use, first, of terms, each evidently confined and limited to.a particular class of a'known species of things, and then, after such specific enumeration, subjoins a term of very extensive signification, this term, however general and comprehensive in its possible import, yet when thus used, embraces only things ejusdem generis’ — that is, of the same kind or species with those comprehended by the preceding limited and confined terms.” 3 Words and Phrases, 2328.
This proviso of section 2 of the Hours of Service Act, was construed by the Circuit Court of Appeals for the Eighth Circuit in Missouri Pacific Railway Co. v. United States, 211 F. 893" court="8th Cir." date_filed="1914-02-16" href="https://app.midpage.ai/document/missouri-pac-ry-co-v-united-states-8791221?utm_source=webapp" opinion_id="8791221">211 Fed. 893-897, at page 897, 128 C.C.A. 271" court="8th Cir." date_filed="1914-02-16" href="https://app.midpage.ai/document/missouri-pac-ry-co-v-united-states-8791221?utm_source=webapp" opinion_id="8791221">128 C. C. A. 271, at page 275, where it was said by the court:
*37 "As the word ‘employé’ in the proviso of section 2 includes ‘operator’ and ‘train dispatcher,’ for the latter are both employes, the conclusion here is irresistible that Congress intended by the use of the words ‘other employe’ to mean an employe engaged primarily in the same class of service as would be performed by an operator or train dispatcher.”
In our construction of the statute we have steadily kept in view the beneficent purpose of the law. If we have construed it properly, the Congress may enact such further legislation as may be deemed best for the public interests.
We are of the opinion that the judgment should be affirmed, and it is so ordered.
WALKER, Circuit Judge, dissents.