224 F. 667 | 6th Cir. | 1915
The government commenced two actions of a civil nature against the railroad company to recover penalties amounting to $60,000, for alleged violations of the federal statute commonly known as the Hours of Service Act (34 Stat. 1415). A plea of the general issue was filed to each declaration. The actions appear to have been submitted as a single cause by consent of counsel and upon an agreed statement of facts. An instructed verdict was rendered in favor of defendant,.judgment was entered accordingly, and the government prosecutes error.
“The length of hours of service has direct relation to the efficiency of the human agencies upon which protection to life and property necessarily depends. * * * In its power suitably to provide for the safety of employes and travelers, Congress was .not limited to the enactment of laws relating to mechanical appliances; hut it was also competent to consider, and to endeavor to reduce, the dangers incident to the strain of excessive hours of duty on the part of ® * * .telegraphers, and other persons embraced within the class defined by the act. * * * If, then, it be assumed, as it must be, that in the furtherance of its purpose Congress can limit the hours of labor of employes engaged in interstate transportation, it follows that this power cannot be defeated either by prolonging the period of service through other requirements of the carriers or by the commingling of duties relating to interstate and intrastate operations.”
We may therefore safely assume that the statutory limits of service, which can be exacted of a telegraph operator within the 24-hour period, must be observed.
“That no operator, •* * * who by the use of the telegraph * * * 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 daytime. * * * ”
It appeared in the Atchison Railroad Case, supra, that the telegraph office in question was “shut from 12 to 3 by day and by night, but open the rest of the time.” The government claimed, among other things, that Congress intended by the proviso to legislate in respect of all towers, offices, etc., and in the course of the opinion Mr. Justice Holmes said, at page 43 of 220 U. S., at page 363 of 31 Sup. Ct. (55 L. Ed. 361):
“We think the government is right in saying that the proviso is meant to deal with all offices. * * * ”
In construing the language of the proviso, then, we may regard the law as settled that the offices now in question were embraced within the terms of the act.
The railroad seeks in two ways to escape the “night and day” class. One is by insisting that the words “continuously operated night and day” signify continuously “during every hour from midnight to midnight,” and that as these offices were not so operated the defendant is not liable. The other is that the offices belong to> the class which are “operated only during the daytime.” It is said of the latter that the operation here, though admittedly extending into the night and also the day, is consistent with the permission to exact 13 hours of services in offices “operated only during the daytime,” because in this latitude there are not that many hours of daylight each day for the greater portion of the year. The contention for the railroad thus comes to be a virtual concession that, unless the offices can rightfully be placed in the “daytime” class, the statute was violated.
The present classification was evidently made, and theoretically it must be regarded as having been made, through selection of characteristics that were common to the respective groups of objects which were intended to be erected into classes. 'The objects of the classification were “towers, offices, places, and stations.” In considering these objects, in connection with the services therein rendered, it will at least be an aid to interpretation to observe the characteristics which were employed to describe and distinguish the two classes created — • the “daytime” class and the “night and day” class. It will be found that the characteristics are not arbitrary, but that they are natural and reasonably constant. The dominant characteristic of the “daytime” class is that for a substantial portion of the year the whole service, and for the rest of the year by far the greater length of the daily service, falls within the hours of daylight; while the controlling characteristic of the “night and day” class is that the service extends into both night and day throughout the year. The fluctuations in length of service that may be rendered during the hours of daylight do not seem to us to be material, whether the one or the other of these classes be considered.
As respects the “daytime” class, the maximum service prescribed for a single operator (13 hours) cannot, it is true, he performed during the greater part of the year within the hours of daylight, yet the
In order to exclude the offices in question from the “daytime” class, we have only to recall that, subject to negligible intermissions, the Traverse City office was operated from 4:30 a. m. to 9:30 p. m., and the Pellston office from 6:30 a. m. to 11 p. m. Another view of. the situation will lead to the same result. The service rendered at Traverse City in every 24-hour period of the month in issue was 17 hours, and at Pellston 16% hours; and thus there were 4 hours more service required at the one place, and 3% hours more at the other, in each 24-hour period, than would have been permissible as to one telegraph operator even in a “daytime” office. It was therefore necessary to place more than one operator in each of the offices, and to require the .two, who were placed in each office; to work during the same hours for a material part of each 24-hour period. As Mr. Justice Holmes said in the Atchison Railroad Case, and in part already quoted at page 43 of 220 U. S., at page 363 of 31 Sup. Ct. (55 L. Ed. 361) :
“The antithesis is between places continuously operated night and day and places operated only during the daytime. We think that the government is right in saying that the proviso is meant to deal with all offices, and, if so, we should go farther than otherwise we might in holding offices not operated only ■during the daytime as falling under the other head.”
No decision has come to our notice which sanctions a service in any office such as. those here concerned for more, than 9 hours in any 24-hour period. Indeed, under conference ruling No. 287 (March-16, 1908) of the Interstate Commerce Commission (Conference Rulings [Ed. April 1, 1911] p. 92), as well as by the decision in United States v. Atlantic Coast Line R. Co., 211 Fed. 897, 901, 128 C. C. A. 275 (C. C. A. 4), the present offices would be excluded from the daytime class and regarded as in the day and night class. See United States v. St. Louis & S. W. R. Co. of Texas, supra; United States v. M., K. &
“There is some reason for attributing the meaning of habitually or regularly to the word continuously; but the plain construction, and that which will give the statute its full signification, is to take the whole phrase ‘offices, places, and stations continuously operated night and day’ to mean offices whose operation is continued from the day into the night.”
It results from the views we have expressed that during the month here involved the offices in question belonged to the “night and day” class. Any other conclusion would eliminate them altogether from the operation of the statute. In view of the Atchison Railroad Case, it was not necessary that the service' should be continuous; it might be intermittent. The defect, then, in defendant’s plan, was that each telegraph operator was required to work more than 9 hours. The purpose of the act as defined in its title is “to promote the safety of employes and travelers upon railroads by limiting the hours of service” of tlie employes. The subject was peculiarly within the province of the lawmakers. Effective service and the average in hours of human endurance arc vitally related. And, in the light of the ruling in the Baltimore & Ohio Railroad Case, the salutary effect of such an act cannot be frittered away through any opposed theory of the carrier, as here, touching the proper duration of time for work and for recuperation.
The judgment must be reversed, and the case remanded for further proceedings not inconsistent with this opinion.
These words are hereafter set out with their context.