Assistant to the Attorney General Kenyon, Attorney General Wickersham, and Special Assistant United States Attorney Doherty for petitioner.[ U S v. Atchison, T & S F Ry Co 220 U.S. 37 (1911) ]
[220 U.S. 37, 40] Messrs. Robert Dunlap and Gardiner Lathrop for respondent.
Mr. Justice Holmes delivered the opinion of the court:
This is an action to recover penalties for violation of the 'Act to Promote the Safety of Employees and Travelers upon Railroads by Limiting the Hours of Service of Employees Thereon.' March 4, 1907, chap. 2939, 2, 3, 34 Stat. at L. 1415, 1416, U. S. Comp. Stat. Supp. 1909, pp. 1170, 1171. The government had a verdict in the district court, subject to exceptions, and the judgment was reversed by the circuit court of appeals. 100 C. C. A. 534, 177 Fed. 114.
The case is this: By 2 it is made unlawful for common carriers subject to the act to permit any employee subject to the act to be on duty 'for a longer period than sixteen consecutive hours,' or, after that period, to do on duty again until he has had at least ten consecutive hours off [220 U.S. 37, 43] duty, or eight hours after sixteen hours' work in the aggregate: Provided that no telegraph operator and the like shall be permitted to be 'on duty for a longer period than nine hours in any twenty-four hour period in all towers, offices, places, and stations continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places, and stations operated only during the daytime,' with immaterial exceptions. By 3 there is a penalty of not exceeding $500 for each violation of 2. The defendant was subject to the act. It had a station and telegraph office at Corwith, in the outer limits of Chicago, which was shut from 12 to 3 by day and by night, but open the rest of the time. The government contends that this was a place 'continously operated night and day.' At this station the same telegraph operator was employed from halfpast 6 o'clock in the morning until 12, and again from 3 P. M. to half-past 6, or nine hours, in all, of actual work. The government contends that when nine hours have passed from the moment of beginning work, the statute allows no more labor within twenty-four hours from the same time, even though the nine hours have not all of them been spent in work. According to the government's argument, the operator's nine hours expired at half-past 3 in the afternoon. These questions on the construction of the statute are the only ones that we have to decide.
We are of opinion that the government's argument cannot be sustained, even if it be conceded that Corwith was a place continuously operated night and day, as there are strong reasons for admitting. The antithesis is between places continuously operated night and day and places operated only during the daytime. We think that the government is right in saying that the proviso is meant to deal with all offices, and if so, we should go farther than otherwise we might in holding offices not [220 U.S. 37, 44] operated only during the daytime as falling under the other head. A trifling interruption would not be considered, and it is possible that even three hours by night and three hours by day would not exclude the office from all operation of the law, and to that extent defeat what we believe was its intent.
But if we concede the government's first proposition, it is impossible to extract the requirement of fifteen hours' continuous leisure from the words of the statute by grammatical construction alone. The proviso does not say nine 'consecutive' hours, as was said in the earlier part of the section, and if it had said so, or even 'for a longer period than a period of nine consecutive hours,' still the defendant's conduct would not have contravened the literal meaning of the words. A man employed for six hours and then, after an interval, for three, in the same twenty-four, is not employed for a longer period than nine consecutive hours. Indeed, the word 'consecutive' was struck out when the bill was under discussion, on the suggestion that otherwise a man might be worked for a second nine hours after an interval of half an hour. In order to bring about the effect contended for it would have been necessary to add, as the section does add in the earlier part, a provision for the required number of consecutive hours off duty. The presence of such a provision in the one part and its absence in the other is an argument against reading it as implied. The government suggests that if it is not implied, a man might be set to work for two hours on and two hours off, alternately. This hardly is a practical suggestion. We see no reason to suppose that Congress meant more than it said. On the contrary, the reason for striking out the word 'consecutive' in the proviso given, as we have mentioned, when the bill was under discussion, and the alternative reference in 2 to 'sixteen consecutive hours' and 'sixteen hours in the aggregate,' show that the obvious possibility of two periods of service [220 U.S. 37, 45] in the same twenty-four hours was before the mind of Congress, and that there was no oversight in the choice of words.
Judgment of Circuit Court of Appeals affirmed.