passage into and across the Mississippi River than was provided by the then present Harvey Lock and Canal. The defense was that the employees working on the Algiers Lock were not engaged in interstate commerce and thus were not covered by the Act. The Court speaking through Mr. Justice Douglas commented upon the issue as follows:
'Section 7 of the Act makes the 40-hour week and the overtime provisions applicable to the Algiers Lock and Canal project if the respondent's employees at work on it are 'engaged in commerce.' It is argued that they are not engaged 'in commerce' since the Algiers Lock is new construction and therefore in the category of the new tunnel that was being constructed in Raymond v. Chicago, M. & St. P.R. Co., supra (243 U.S. 43, 37 S. Ct. 268, 61 L. Ed. 583). In the latter case, the Court held that an employee at work on a new tunnel for an interstate carrier was not subject to the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., even though the tunnel, when completed, would be an interstate facility.
'We do not think that case should control this one. We are dealing with a different Act of another vintage -- one that has been given a liberal construction from Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S. Ct. 1116, 86 L. Ed. 1638, to Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S. Ct. 565, 97 L. Ed. 745. The question whether an employee is engaged 'in commerce' within the meaning of the present Act is determined by practical considerations, not by technical conceptions. See Walling v. Jacksonville Paper Co., 317 U.S. 564, 570, 63 S. Ct. 332, 336, 87 L. Ed. 460; Overstreet v. North Shore Corp., 318 U.S. 125, 128, 130, 63 S. Ct. 494, 496, 497, 87 L. Ed. 656. The test is whether the work is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated local activity. See McLeod v. Threlkeld, 319 U.S. 491, 497, 63 S. Ct. 1248, 1251, 87 L. Ed. 1538.' 349 U.S. at page 429, 75 S. Ct. at page 862.
* * *
'The Gulf Intracoastal Waterway is an existing instrumentality of commerce. Without Algiers Lock, it has proved inadequate where it crosses the Mississippi. Harvey Lock cannot handle the traffic. Use of Harvey Lock entails travel through some five miles of the New Orleans harbor, already heavy with traffic. It is impractical to widen Harvey Lock because it is located in a highly developed industrial section of New Orleans. Algiers Lock is conceived as the practical alternative for relieving the congestion of the Waterway at this point. See S.Doc. No. 188, 78th Cong., 2d Sess., pp. 1-4. The work on Algiers Lock seems to us to have as intimate a relation to improvement of navigation on the Waterway as the dredging of Harvey Lock would have. It is part of the redesigning of an existing facility of interstate commerce. Those working on the Algiers Lock are therefore 'engaged in commerce' within the meaning of § 7 of the Act.' ( Emphasis supplied.) 349 U.S. at page 430, 75 S. Ct. at page 862.
The Court pointedly emphasized the holding in Vollmer by the following language in Southern Pacific Co. v. Gileo, 1956, 351 U.S. 493, 500, 76 S. Ct. 952, 957, 100 L. Ed. 1357, a Federal Employers' Liability Act case, wherein it was stated:
'This Court recently rejected the 'new construction' doctrine in determining whether an employee is 'engaged in commerce' within the meaning of a like provision in the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. Mitchell v. C. W. Vollmer & Co., 349 U.S. 427, 75 S. Ct. 860, 861, 99 L. Ed. 1196.'
Despite the contention of defendants that the Court's rejection of the 'new construction' doctrine in Vollmer and Gileo was only dicta, and their other arguments, I am persuaded that their holdings plainly foreclose the defendants from the insulation they seek under the doctrine.
The Court has made it clear that the question of whether an employee is engaged 'in commerce' is to be 'determined by practical considerations, not technical conceptions' under the Fair Labor Standards Act. The application of the principles laid down in Vollmer to the facts in this case produce a hand in glove fit. Just as with the Gulf Intracoastal Waterway in the Vollmer case, the system of interstate highways of New Jersey prior to the construction of the Garden State Parkway, as it is developed in this case, was an 'existing instrumentality of commerce'. Without the Parkway, the existing net work of New Jersey roads 'proved (as) inadequate' in handling the constantly increasing flow of interstate traffic as did the Waterway without the Algiers Lock. Use of the prior existing roads of New Jersey entailed travel through numerous communities, already 'heavy with traffic as was New Orleans Harbor. Widening of the existing facilities in New Jersey would have been as 'impractical' as that of widening Harvey Lock. The Parkway, like Algiers Lock, therefore, was 'conceived as the practical alternative for relieving the congestion.' And the Parkway, as in the instance of the Algiers Lock is 'part of the re-designing of an existing facility of interstate commerce.'
Those working on it, as those working on Algiers Lock, must be viewed as 'engaged in commerce', since they performed work 'so directly and vitally related to' interstate commerce 'as to be, in practical effect, a part of it', as stated in the Vollmer case.
The analogy of the Vollmer case to the case at bar appears to be accurate and complete and its decision governs here. Hence, the motion by the defendants to dismiss the information will be denied and an order in conformity herewith should be submitted by the plaintiff with consent as to form, or it should be noticed for settlement.