Evening star., 1948-12-12
Lines Are Firmly Drawn
In Supreme'C Court Feud
Latest Wage.Hour Ruling Follows
Pattern Set Five Years Ago
Bv Gerard D. Reilly

BY Gerard ID. Kelly
The bitter feud which began In the Supreme
Court i've years ago with the famous portal
to-portal pay decision In the coal mines seems
to have produced fairly permanent division
among the justices in litigation over the ques.
ton of the coverage Of the Fair Labor Stand
ards (Wage and Hour) Act. This was Illus
trated again by the 5-4 holding the past week
in Vermilya Brown VS.. Connell, an action to
recover overtime wages brought by the EN-
ployes Of contractors engaged in constructing
United States military base on the island Of
Bermuda, British crown colony
The matter was decided by the same five
members Of the court who constituted the ma
jority in the Jewell Ridge (walking time in
mines) and the Mount Clemens Pottery (pre-
lminary and postlimnary time in factory
cases, viz, Justices Reed, Black, Douglas, Muir
ply and Rutledge. They gained no recruits,
however for Chief Justice Vinson, who was
appointed to the court after these decisions,
.concurred with Justices Jackson, Frankfuter
and Burton in the minority opinion.
The case was unusual in two respects. It
was the first time in which an action under
the Wage-Hour Act has involved a question Of
international law and was also the first private
suit in which the position Of the Government
on coverage, as set forth in the anaicus brief
filed by the Department Of Justice, was not
in accord with the conclusion ultimately
reached by the majority.
The case also was attended by an interesting
divergence of views among present and past
Solicitors General, the argument for the plain
tiff being made by Charles Fahy, who held the
office of Solicitor General Q941-1945) longer
than any other lawyer in modern American
history; and for the Government by Philip
Perlman, his successor in Office. The majority
opinion was written by Mr.. Justice Reed, So
licitor General from 1884 to 1887, and the
minority opinion by another former Solicitor
General Mr. Justice Jackson.
The decision has been the subject OF much
discussion, most of It critical, among interna-
tional lawyers, for 1t held that the Bermuda
military base leased to this country In lS4l In
return for batch of over-age destroyers was
possession of the United States" and conse-
quently subject to the provisions OF the Fair
Labor Standards Act, which apply to employees
engaged in commerce or producing goods for
commerce between "any State Of the United
States or the District of Columbia or any
Territory or possession of the United States"
Mr. Justice Jackson, in the lucid and vigor-
GUS prose which is characteristic Of his legal
opinions, traced the history of the Roosevelt
Churchill negotiations to demonstrate that the
United States had disclaimed sovereignty over
any part of the islands involved in the treaty.
According to his opinion, the State Depart.
ment had originally favored outright acquisi-
ton of the island bases in exchange for the
destroyers, with the intention Of fortifying the
islands to forestall any possible attack upon
the Panama Canal President Roosevelt, how
over, overruled this proposal, preferring that
the United States should not undertake the
responsibilities of governing any part Of the
islands, but should confine its role to the
establishment and maintenance Of military,
naval and air installations. His reasons for
doing this were explained in the Stimson and
Hull memoirs.
The justice also cited the terms Of the leases
which were subsequently executed by the two
governments to show the limited character Of
American control Of the bases. He noted that
the State Department had expressed its con-
cern with a lower court holding that the Ber-
muda base was possession Of the United
States in the sense in which the term Is used
to describe the Philippines (prior to the effec-
tive date Of the Independence Act), SWANS
Island, Samoa, Guam and other places in which
the United States exercises its sovereignty to
the exclusion Of that of any other power. The
department feared that the holding of the
lower court, If permitted to stand, might be
detrimental to our diplomatic relations with
Great Britain.
In answering his views Mr.. Justice Reed did
not directly dispute the position Of the State
Department for he said that the question was
not one of sovereignty but merely of statutory
construction. He declared that since Congress
could pass any criminal laws with respect to
the conduct of American citizens even in foreign
countries, 1t was clear that Congress could also
impose civil liability upon its nationals for
transactions abroad in which they participated.
The rest of his opinion was devoted to de-
veloping the conclusion that Congress intended
the protection of the Wage-Hour Act which
was given to employees on bases built on our
own Territories in the Pacific to apply to en-
ployes Of American contractors on foreign
territory under lease for bases.
** 4
In this connection he said that I'VE feel sure
that the House Of Assembly of Bermuda did
not also undertake legislation similar to our
Fair Labor Standards Act to control labor rela-
tions on the base" This portion of the opinion
was the least convincing for no language ap-
pears in the terms of the lease which specifically
abridges the authority of the Bermuda Legisla-
ture in this respect.
The majority decision also seemed to over
look the fact that Congress has not only
enacted general labor legislation like the Fair
Labor Standards Act but in the Bacon-Davis
Prevailing Wage Act and the eight-hour law has
made regulations with respect to labor stand
ards which dealt specifically with laborers and
mechanics employed on public works under
Government contract.
Under long established administrative inter-
pretation these statutes have not been applied
in foreign countries In fact the Labor De-
partment has always deemed itself bound by
an old opinion of the Attorney General hold
ing that these acts did not apply to construc-
ton work on foreign embassies, even though
the sites of such buildings are land belonging to
the United States The reasoning was that
these statutes indicated an intention on the
part of Congress to improve labor standards
IIsaitai hut in farains,