of hills which would necessarily cover some virgin road territory.
The function of the court in this situation is clearly pointed out by Justice Frankfurter in A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 523, 524, 62 S. Ct. 1116, 1120, 86 L. Ed. 1638.
'* * * the scope of the Act is not coextensive with the limits of the power of Congress over commerce, * * *. * * * the Fair Labor Standards Act puts upon the courts the independent responsibility of applying ad hoc the general terms of the statute to an infinite variety of complicated industrial situations. * * *
'* * * the provisions of the Act expressly make its application dependent upon the character of the employees' activities. * * *'
In Overstreet v. North Shore Corp., 318 U.S. 125, 128, 63 S. Ct. 494, 496, 87 L. Ed. 656, the court said: '* * * And in determining what constitutes 'commerce' or 'engaged in commerce' we are guided by practical considerations.'
Again in 10 East 40th Street Building, Inc. v. Callus, 325 U.S. 578, 582, 65 S. Ct. 1227, 1228, 1229, 89 L. Ed. 1806, 161 A.L.R. 1263, Justice Frankfurter said: '* * * For as was pointed out in Walling v. Jacksonville Paper Co., supra, 317 U.S. (564) at page 570, 63 S. Ct. (332) 336, 87 L. Ed. 460, we cannot 'be unmindful that Congress in enacting this statute plainly indicated its purpose to leave local business to the protection of the states.' We must be alert, therefore, not to absorb by adjudication essentially local activities that Congress did not see fit to take over by legislation.'
Original construction is definitely beyond the contemplation of the Act.
But what is original construction? As indicated above, plaintiff insists upon the ultimate, i.e., the construction of a road where no road has previously existed. Defendant contends that any resurfacing of an old road bed is new or original construction. In the Kirschbaum case, supra, 316 U.S. 517, 520, 62 S. Ct. 1118, Justice Frankfurter aptly phrased the inherent difficulty in properly applying the provisions of the Act to the average industrial enterprise as follows: 'To search for a dependable touchstone by which to determine whether employees are 'engaged in commerce or in the production of goods for commerce' is as rewarding as an attempt to square the circle. * * *'
However, in attempting to determine what constitutes 'commerce' or 'engaged in commerce' we are cautioned that we are to be guided by practical considerations.
This defendant, according to the Stipulations, makes, distributes and applies its road material, amesite; its road work, covered by contracts with the Commonwealth of Pennsylvania and many of its political subdivisions, involved no completely original construction, it consisted entirely in some form of resurfacing of previously existing roads, either interstate as such or connecting with an interstate system, with the slight exception involved in the straightening of old road lines; its industrial and railroad work was in each cited instance done for the improvement of the facilities of concerns engaged in interstate commerce; its private work comprised about fourteen and one-half per cent. of its overall total and apparently involved no interstate activity. Furthermore, at none of its plants was there any segregation of work performed by its off-the-road employees who were engaged in work having definite interstate involvements from those of a purely private nature.
Starting with the premise that approximately eighty-five and one-half per cent. of its total volume of work for the period in question involved interstate facilities, the sole question remaining is- Was it or was it not original construction? A typical case would be a through highway carrying a State and frequently a United States highway number. It may originally have been dirt, but it was none the less a part of an interstate system of highways. Just what sort of treatment would the defendant have us designate original construction on that old road bed? What difference does it make whether the old dirt road bed has simply been oiled, stoned and oiled, cemented or amesited? It is still the improvement of a previously existing interstate highway.
In Walling v. McCrady Const. Co., D.C.W.D. Pa. 60 F.Supp. 243, 248, affirmed 3 Cir., 156 F.2d 932, the court, in my judgment, correctly analyzed this road situation as follows: '* * * In most of the highways involved in this case, where defendant claims the work was new,- even though the road follows the old- it relies on the magnitude of the work, notwithstanding the work was on the old road. In such cases there is no doubt that the work done by defendant was repair or reconstruction of an instrumentality of interstate commerce. In some instances, parts of the highway were relocated following the general location of the old highway, and served the same purpose. In those cases we are of the opinion the work done by the employees falls squarely within the Act. In such instances, the work done was clearly to improve portions of a highway that was used in interstate commerce.'
I am of the opinion that the various plants of the defendant were all component parts of an integrated unit, eighty-five and one-half per cent. of whose total output was directed toward the improvement of various interstate facilities, and that all of the employees of the defendant are definitely within the scope of the statute. As interpreted by the Supreme Court in Overstreet v. North Shore Corp., 318 U.S. 125, 129, 63 S. Ct. 497, 'We think that practical test should govern here. Vehicular roads and bridges are as indispensable to the interstate movement of persons and goods as railroad tracks and bridges are to interstate transportation by rail. If they are used by persons and goods passing between the various States, they are instrumentalities of interstate commerce. Cf. Covington & Cincinnati Bridge Co. v. Kentucky, 154 U.S. 204, 218, 14 S. Ct. 1087, 1092, 38 L. Ed. 962. Those persons who are engaged in maintaining and repairing such facilities should be considered as 'engaged in commerce' even as was the bolt-carrying employee in the Pedersen case, supra, because without their services these instrumentalities would not be open to the passage of goods and persons across state lines. And the same is true of operational employees whose work is just as closely related to the interstate movement. * * *'
My conclusion is, therefore, on the whole of the transactions involved in this case, that the plaintiff is entitled to an injunction, as prayed for.
An order for judgment in accordance herewith may be submitted on notice to opposing counsel.