148

JACKSON, J., concurring.

The Court evidently stands upon and reiterates the basic doctrine that the Act is one to regulate industry labor relations, for it says: "This Act contains its own definitions, comprehensive enough to require its application to many persons and working relationships, which prior to this Act, were not deemed to fall within an employeremployee category."

" 1

The claimants now before us ask to participate in the judicial largess. They believe that they are entitled to be paid for the time that they spent on the railroad's premises, under the railroad's direction, performing railroad labor, in order to learn to qualify for railroad jobs when the railroad might need them. The Court does not even attempt to distinguish the foregoing cases on which their claim is based.

This case again requires us to make a choice between grounds of decision similar to the choice that was open to us in the cited cases and I think it is timely for the Court to reconsider its approach to cases under this Act. We may purport to find grounds for denying these claims in an interpretation of the Act, although Congress never intended to regulate the subject at all. Or we can use as valid ground for denying these claims the concurrent findings by two lower courts of a good faith understanding of the parties, following a long-established custom of an industry whose labor relations have long been subject to collective bargaining. I concur only on the latter ground.

1 I did not understand when I concurred in United States v. Rosenwasser, 323 U. S. 360, that it so held. It applied the Act to piecework employees. Piecework employment is a well-known form of employment that has existed perhaps as long as employment at a fixed hourly or daily wage. I understood, and still understand, the Rosenwasser case to hold only that this form of employment is not excluded from the terms of the Act.

WALLING, WAGE AND HOUR ADMINISTRATOR, v. NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.

No. 335. Argued January 17, 1947. Decided February 17, 1947. 1. The Wage and Hour Administrator sued to enjoin alleged violations of §§ 15 (a) (2) and 15 (a) (5) of the Fair Labor Standards Act, requiring that minimum wages be paid to employees covered by the Act and that appropriate records be kept concerning their employment and pay. The trial court found that, as to one group of alleged employees, the defendant railroad "for several years past has been complying with the Act as to them and apparently intends in good faith to do so in the future," and denied the injunction. That finding was not challenged here; and no argument was made here that it was not adequate to support denial of the relief granted. Held: Denial of the injunction as to this group is sustained. P. 159. 2. Under facts practically identical with those involved in Walling v. Portland Terminal Co., ante, p. 148, and for the reasons there stated, persons in training to become yard and main line firemen, brakemen, and switchmen for a railroad, held not to be "employees" within the meaning of § 3 (e) of the Fair Labor Standards Act. P. 160. 155 F.2d 1016, affirmed.

The Wage and Hour Administrator sued to enjoin alleged violations of §§ 15 (a) (2) and 15 (a) (5) of the Fair Labor Standards Act, 52 Stat. 1060, 1068. The District Court denied the injunction. 60 F. Supp. 1004. The Circuit Court of Appeals affirmed. 155 F. 2d 1016. This Court granted certiorari. 329 U. S. 696. Affirmed, p. 160.

William S. Tyson argued the cause for petitioner. With him on the brief were Acting Solicitor General Washington, Stanley M. Silverberg and Morton Liftin.

Walton Whitwell argued the cause for respondent. With him on the brief were Edwin F. Hunt and Wm. H. Swiggart.

158

WALLING v. NASHVILLE, C. & ST. L. R. CO. 159

Opinion of the Court.

Lester P. Schoene filed a brief for the Railway Labor Executives' Association, as amicus curiae, in support of petitioner.

MR. JUSTICE BLACK delivered the opinion of the Court.

The petitioner, Administrator of the Wage and Hour Division, United States Department of Labor, filed this action in a Federal District Court to enjoin alleged violations by the respondent railroad of §§ 15 (a) (2) and 15 (a) (5) of the Fair Labor Standards Act. 52 Stat. 1060, 1068. These sections require that minimum wages be paid to employees covered by the Act and that appropriate records be kept concerning their employment and pay. The railroad was charged with having violated the Act with regard to two types of alleged employees: First, persons in training to become yard and main line firemen, brakemen, and switchmen; second, others in training to become clerks, stenographers, callers, messengers, and other similar general miscellaneous workers. The District Court held that the first group were not "employees" and therefore were not covered by the Act. On this ground alone the injunction was denied as to them. It also denied relief as to the second group, clerks, etc., partly on this same ground. Another ground for denying relief as to the second group was the court's finding that the railroad "for several years past has been complying with the Act as to them, and apparently intends in good faith to do so in the future." 60 F. Supp. 1004, 1007-1008. The Circuit Court of Appeals affirmed. 155 F. 2d 1016, one judge dissenting. We granted certiorari because of the importance of the questions decided. 329 U. S. 696.

The finding of the District Court that the railroad had been complying with the Act in good faith in its business relations with the trainee clerks, stenographers, etc. is not challenged. No argument is here made that this is not adequate support for denial of the relief granted as to

this second group. Under these circumstances, we affirm the court's action in denying an injunction to enjoin violations of the Act as to these trainees. We therefore do not reach the question as to whether this group as a whole or any of the persons in it were or were not employees under the Act.

The sole ground for denying relief as to the persons training to become firemen, brakemen, and switchmen was that they were not employees. The findings of fact here as to the training of these trainees are in all relevant respects practically identical with the findings of fact in Walling v. Portland Terminal Co., this day decided, ante, p. 148. These findings of fact are not challenged. For the reasons set out in that opinion we hold that the Circuit Court of Appeals was not in error in holding that the persons receiving training in order to become qualified for employment as firemen, brakemen, and switchmen, are not employees within the meaning of the Fair Labor Standards Act.

BOZZA v. UNITED STATES.

Affirmed.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.

No. 190. Argued January 7, 1947.-Decided February 17, 1947.

1. In a trial on an indictment for making and fermenting mash for the production of alcohol in violation of 26 U. S. C. § 2834, the evidence showed that C alone handled and mixed the ingredients of the mash and there was no evidence to indicate that B ever took any part in, or aided and abetted, this particular part of the process of operating an illicit distillery or that he was ever in the part of the premises where the ingredients were stored and the mash was made, although he helped to operate the still in a different part of the premises and to transport the product. Held: The Government's concession that the evidence was insufficient to sustain a conviction of B is accepted. P. 163.

160

Statement of the Case.

2. In a trial on an indictment for having possession and custody of an illicit still in violation of 26 U. S. C. § 2810 (a), the evidence showed that the defendant helped to operate the still; but there was no evidence showing that he ever exercised any control over the still, aided in the exercise of any such control, or acted as a caretaker, watchman, lookout or in any similar capacity calculated to facilitate its custody or possession. Held: The Government's concession that the evidence was insufficient to sustain his conviction is accepted. Pp. 163-164.

3. In a trial on an indictment for operating "the business of distiller . . . with intent wilfully to defraud” the Government of taxes in violation of 26 U. S. C. § 2833 (a), the evidence showed that C secretly carried on the business of a distiller in an apparently abandoned farmhouse, that B assisted him, and that the products were transported to a city in a car which followed another car, sometimes B's. Held: The evidence was sufficient to sustain B's conviction. Pp. 164-165.

(a) Under 18 U. S. C. § 550, one who aids and abets another to commit a crime is guilty as a principal. P. 164.

(b) The jury could properly infer that one helping to operate a secret distillery in the manner here shown knew that it was operated with intent to defraud the Government of its taxes. Pp. 164-165.

4. Having been convicted of a crime carrying a mandatory minimum sentence of fine and imprisonment, defendant was sentenced to imprisonment only and placed in temporary detention awaiting transportation to a penitentiary. Five hours later, the judge recalled him, called attention to the mandatory provision for fine and imprisonment, and sentenced him to both. Held: This did not constitute double jeopardy contrary to the Constitution. Pp. 165–167.

155 F. 2d 592, affirmed in part and reversed in part.

Petitioner was convicted on five counts of an indictment for violating the Internal Revenue Laws in connection with the operation of a still. The Circuit Court of Appeals reversed on two counts and affirmed on three counts. 155 F. 2d 592. This Court granted certiorari. 329 U. S. 698. Reversed on two counts and affirmed on one count, p. 167.