that only in cases where doubt could exist, would such question as has been raised herein be the basis of objection, and should frivolous claims be made they could very easily be determined by the Court at the time of application for an order enforcing the terms of the subpoena.
The U.S. Supreme Court in the Endicott Johnson case [ 63 S. Ct. 340, 87 L. Ed. ], above referred to, granted certiorari because "of the importance of the questions in the enforcement of the Act, and because of probable conflict with a holding of the Circuit Court of Appeals for the Sixth Circuit." Nowhere in the course of the opinion is there any rejection, specific or by patent implication, of the findings of the latter court as set forth in General Tobacco & Grocery Company v. Fleming, 6 Cir., 125 F.2d 596, 140 A.L.R. 783. The finding in the Endicott Johnson case relates strictly to the procedure under the Walsh-Healey Public Contracts Act, which differs specifically from the Fair Labor Standards Act of 1938.
The trend and tendency of the present day is to enlarge the functions of administrative bodies in order to carry out the purposes of social legislation. Commendable as this is, the functions of the Courts remain, and those functions are not merely to act as an adjunct of administrative bodies, but rather in such instances as have been categorically indicated by Congress to implement the operation of such bodies. Desirable as the contribution of experts to government is, there is no indication that Congress has as yet determined to substitute a government of mere expert opinion, for a government of law.
The constitutional objections raised by Respondent include one which is based on the First Amendment, relative to abridgment of the freedom of the Press. No attempt to accomplish so reprehensible a purpose appears in this Act. Regulation of conditions under which a newspaper may be published, of itself, does not limit the freedom of the Press as envisaged in that salutary Amendment. The provisions of this Act relating to hours and wages of employees are not restrictions which might fairly be construed as violations of the newspaper's right to function as a medium for impartial distribution of the news. There is no reason why provisions of law aiming at sensible amelioration of conditions of employment should be barred of extension to the field of newspaper publication on the spacious pretext of violating the Freedom of the Press. A newspaper is a business in addition to being a medium for dissemination of news and opinion, and as such is subject to the provisions of general laws of government. Associated Press v. Labor Board, 301 U.S. 103, 57 S. Ct. 650, 81 L. Ed. 953; Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357; Lovell v. City of Griffin, 303 U.S. 444, 58 S. Ct. 666, 82 L. Ed. 949; Fleming v. Lowell Sun Co., D.C., 36 F.Supp. 320, reversed on other grounds, 1 Cir., 120 F.2d 213, affirmed Holland v. Lowell Sun Co., 315 U.S. 784, 62 S. Ct. 793, 86 L. Ed. 1190.
As for respondent's contention that the provisions of the Fifth Amendment have been violated by the implications of the Act, there does not seem to the Court to be merit therein. The Supreme Court has repeatedly asserted that there is no requirement of uniformity in connection with the Commerce power, Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 37 S. Ct. 180, 61 L. Ed. 326, L.R.A.1917B, 1218, Ann.Cas.1917B, 845; Florida Fruit & Produce v. United States, 5 Cir., 117 F.2d 506. The Fifth Amendment has no equal protective clause Brushaber v. Union Pacific R. Co., 240 U.S. 1, 36 S. Ct. 236, 60 L. Ed. 493, L.R.A.1917D, 414, Ann.Cas.1917B, 713. Steward Machine Co. v. Davis, 301 U.S. 548, at page 584, 57 S. Ct. 883, 81 L. Ed. 1279, 109 A.L.R. 1293.
As to the insistment by the respondent that the Act violates the 4th Amendment to the Constitution, that situation is dependent on the determination hereinbefore made which obviates necessity for discussion.
In view of the foregoing, the order to show cause why an order directing respondent to appear before the Administrator's agent to produce evidence as set forth in the subpoena, is dismissed.
Since the Administrator has not had opportunity sufficiently to argue the question of coverage, that matter is left to such further proceedings as may be appropriate in the premises.
Let an order be entered in accordance herewith.
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