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May 6, 1971

James D. Hodgson, Secretary of Labor, Plaintiff
American Can Company, Defendant

Lord, Jr., Ch. J.

The opinion of the court was delivered by: LORD, JR.

The Court is presently called upon to determine as a preliminary matter whether defendant, American Can Company, charged with alleged violations of Sections 15(a)(1) and 15(a)(2) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. ยง 201, et seq., is entitled to a jury trial in plaintiff's action to enjoin it from continuing to perpetuate such violations. We find that it is not.

 Defendant relies almost entirely, as it must, upon the Constitutional guarantees of a jury trial in a criminal case contained in Article III, and the Seventh Amendment right to a jury trial in suits at common law.

 Historically it has been recognized that there are cases in which the jury trial may be denied. Hamilton's assertion that the allocation of factfinding functions between judge and jury was subject to Congressional determination *fn1" supports the refusal to interpret Article III as freezing the procedure the courts must follow in exercising their law and equity powers, a refusal given great support by numerous cases later decided, see infra.

 With regard to the Seventh Amendment guaranty of jury trials, the historical position was expressed by Mister Justice Story in Parsons v. Bedford, et al., 3 Pet. 433, 446; 28 U.S. 433, 446, 7 L. Ed. 732 (1830), where, after first analyzing Article III and the Seventh Amendment, he noted, "The phrase 'common law', found in this clause, is used in contra distinction to equity . . . . It is well known that in civil causes, in courts of equity . . . juries do not intervene . . . ."

 The better view, however, seems to be that after the original Constitution had been ratified, those concerned with jury trial felt impelled to submit a separate amendment protecting the right to trial by jury, indicating that Article III, Section 2 was not concerned with the kind of procedure to be followed in the federal courts. *fn2"

 As originally enacted in 1938, Section 17 of the Act (under which the Secretary seeks to restrain the alleged violations) provided that, "The district courts . . . shall have jurisdiction, for causes shown, to restrain violations of Section 15." This was considered a granting of equitable jurisdiction, entitling an equity court to grant full relief. See, McComb v. Frank Scerbo & Sons, 177 F.2d 137, 138-139 (2nd Cir. 1949).

 This decision prompted Congress to take away certain equity powers of the courts, and it amended Section 17 to provide that no court would have the power to restrain violations of this nature (here, violations of minimum wage standards).

 Employees were thus left with the responsibility of acting as little attorneys general on their own behalf, a condition which left such actions open to pressure from sources such as employers. The 1949 amendment was repealed in 1961, in part because, as was noted by a Senate report on the question, "Very few of these suits have been brought by employees . . . and of the few that have been brought most are initiated by individuals no longer in the employ of the defendant employer." U.S. Code Cong. & Ad. News, 87th Congress, First Session 1961, Vol. 2 at p. 1658.

 Congress, therefore, specifically restored the full equity powers of the courts by the 1961 changes. Nothing that we have found in the legislative history of the Act or any of the cases which have followed from it have indicated an intent to provide for trial by jury. Had such an intent been present, Congress could have included it at no difficulty to itself. The language, however, indicates a very strong contrary intent. The 1961 amendment speaks of "restraining" a continuing wrong. Restraining is, historically, an equitable term. *fn3"

 We have read numerous cases, all but one of which supports the Secretary's position that a jury trial may be properly denied in an action of this type. Among the many persuasive cases cited by the Government in its brief are Wirtz v. Jones, 340 F.2d 901 (5th Cir. 1965); Wirtz v. L.A. Swann Oil Company, 293 F. Supp. 211 (E.D. Pa. 1968); Wirtz v. Riccio, 264 F. Supp. 134 (M.D. Pa. 1967); Wirtz v. Turner d/b/a Ace Generator and Starter Exchange, 227 F. Supp. 395 (N.D. Ga. 1963); Wirtz v. Robert E. Bob Adair, Inc., 224 F. Supp. 750 (W.D. Ark. 1963). See also 5 Moore's Federal Practice 38.27, at 209, and cases cited in note 7 (2d ed. 1969).

 The one case not in agreement is Wirtz v. Thompson Packers, Inc., 224 F. Supp. 960 (E.D. La. 1963), a Fifth Circuit case, which has been effectively overruled by Sullivan v. Wirtz, 359 F.2d 426 (5th Cir.), certiorari denied, 385 U.S. 852, 17 L. Ed. 2d 80, 87 S. Ct. 94 (1966); and Wirtz v. Jones, 340 F.2d 901 (5th Cir. 1965).

  The defendant places great reliance on United States v. Darby, 312 U.S. 100, 85 L. Ed. 609, 61 S. Ct. 451 (1941), where the Supreme Court said that one who violates the provisions of the Act "is warned that he may be subject to the criminal penalties of the Act." Id. at 126. However, Section 17 actions are remedial, not punitive, meant to prevent future violations, not punish past ones. Buckley v. Wirtz, 326 F.2d 838 (10th Cir. 1964). This is a civil action, entirely lacking the formal ...

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