Evening star., 1947-02-09

pain Of heavy penalty II he didn't
guess right.
q. But where q group Of men
have made the laborious efforts that
defendant and It's competitors have
to find out where they stand on
these two laws 1t must be readily
agreed that they should not be made
to pay q penalty before the law was
properly interpreted.
"s How can we legally ,or
equitably enforce penalty for fall
ure to conform with a statutory
mandate when the nature of ones
duty is not disclosed by the act
itself?"
Constitution infringement
Cited in Railroad Case.
See also Great Northern Railway
Co. VS.. Sunburst Co., 287 U. S. 356,
where the court said:
"This is a case where a court has
refused to make its ruling retro
active, and the novel stand is taken
that the Constitution of the United
States is infrfnged by the refusal.
1--WE think the Federal Constitu-
ton has no voice upon the subject.
A State in defining the limits of
adherence to precedent may make
a choice for itself between the prin-
ciple of forward operation and that
of relation backward. 1t may say
that decisions of its highest court
though later overruled, are law
nonetheless for intermediate trans
actions. Indeed there are cases in
timating, too broadly that it must
give them that effect; but never has
doubt been expressed that 1t may
so treat them If it pleases, whenever
injustice or hardship will thereby
be averted."
See also Judge (now Chief JUS
tice) Wilson's opinion in Warning
VS.. Colpeys, 122 F. IN 642.
OTHER CLAIMS.
While defendant contends that
plaintiffs cannot recover in this case
for the reason that in the original
suit they were not seeking compen-
sation for time consumed in walk
ing or preliminary activities, it is
sufficient for this court to know
that this point was previously ad-
vanced before the Supreme Court
and then remanded to our attention.
In view of our previous findings
and opinion we do not deem 1t
necessary to touch upon other rea-
sons advanced by defendant why
plaintiffs should not recover, such
as offsetting against any plaintiff
walking time the amount Of time
used by employees going to the wash
room, or for other personal pur-
suits, nor the claim that a bonus
really given as gift at Christmas
or for vacation can effect possible
damages. Nor can we take serious
ly the claim of plaintiffs that the
Supreme Court meant that all
walking time over 2 minutes a day
or all preliminary activities that
contributed in any way to the bene-
fit of the employer is compensate.
We believe that If the Supreme
Court meant this it would have
said so.
Attempted to Abide
BY Courts Mandate.
We conclude this opinion by in
serting an unusual observation; but
chance has made this an unusual
cause. We have, of course, en-
deavored to abide by the mandate
of the Supreme Court and we are
not unmindful of the establishment
set out in its opinion that our de-
cision be made lin light Of the reali-
ties of the industrial world" In
this connection we have not con-
sidered those who seemingly be-
lieve that the working man is en-
titled only to what has often been
termed "the crumbs from the
table; nor have we considered the
equally abhorrent theology of others
who would seek by their strained
of what the Supreme
Court said in this case to further
widen the gulf between capital and
labor. We ought to have in mind
always that we are in great part
an industrial nation where very
mass production and fair
relations between capital and labor
served us so we'll; that we should
look upon laEor and industry as q
team pulling in the same direction,
or as husband and wife where the
give or the take is not all on one
side.
We believe that "in light of the
realities of the industrial world"
means that our decision should, If
consistent with law, aid in promot-
ing accord and not inciting discord,
and that we should treat industry
fairly while granting labor all its
rights. We believe that ''in light of |
the realities of the industrial world"
means that without labor there
would be no industry, and without
industry there can be no labor.
It was the light of all the reali-
ties of the industrial world, not only
part. that we have attempted to
decide this case.
Conclusion.
We cannot, however, reach our
final decision without expressing
some regrets for the original plain
tiffs. Our recent observances have
proven to us that when these en-
ployes claimed they were actually
working at producing pottery before
7 o'clock in the morning and
1 o'clock in the afternoon, jumping
the gum and not having that extra
time counted in their workweek.
they were telling the truth. We
believed it then-we believe it now:
Rut the master in 1943 found other
wise, and under the rules we must
follow the masters findings. i
Let us not be understood as hold
ing that all portal-to-portal suits
should be dismissed. There may be,
and perhaps are, many instances
where walking and the preliminary
activities time consumed is of such
an amount as to call for compen-
sation that the worker is not now
receiving. But this is not one.
Four years ago we held that time