The opinion of the court was delivered by: HOLTZOFF
This case comes before the Court on cross motions for summary judgment. The action is brought for a declaratory judgment to adjudicate an order by the Secretary of Labor to be invalid as in contravention of the statute pursuant to which it was promulgated.
The Walsh-Healey Act, pursuant to which this order was promulgated, 41 U.S.C.A. § 35 et seq. relates to Government contracts for the manufacture or furnishing of materials, supplies, articles and equipment in any amount exceeding $ 10,000. One of the provisions of the Act is that there shall be included in each contract a representation and stipulation that all persons employed by the contractor in its performance will be paid not less than the minimum wages as determined by the Secretary of Labor to be the prevailing minimum wages for persons employed on similar work or in the particular or similar industries or groups of industries currently operating in the locality in which the materials, supplies, articles, or equipment are to be manufactured or furnished under said contract.
It is contended by the plaintiffs that under this provision the Secretary of Labor is without power to fix a single prevailing minimum wage for a particular industry on a nation-wide basis. To determine whether this objection is sound it is necessary to analyze the pertinent phraseology of the Act. The Secretary of Labor is directed to determine the prevailing minimum wages for persons employed on similar work, or persons employed in the particular or similar industries, or persons employed in groups of industries. In other words, he may act under any one of these three provisions. These provisions are followed by the clause, 'currently operating in the locality in which the materials, supplies, articles, or equipment are to be manufactured or furnished under said contract'.
It is contended by the defendants that the words 'currently operating in the locality' are limited only to the last of the three alternatives, namely, persons employed in similar groups of industries. On the other hand, the plaintiffs claim, contrary to the contention of the Secretary, that those words relate back to all of the three clauses. There is some ambiguity in the statute. It is difficult to construe it according to strict grammatical requirements. The words 'currently operating' seem inapplicable to the noun 'work' or to the noun 'industries'. It is, perhaps, an unfortunate choice of words, but it seems to the Court that the phrase 'currently operating' may not be construed as being limited solely to the last of the alternatives but relates back to each of them, namely, persons employed on similar work currently operating in the locality, or, persons employed in the particular or similar industries currently operating in the locality, or persons employed in similar groups of industries operating in the locality. This is the interpretation, in the opinion of this Court, which should be accorded to those words.
In this connection, the Court wishes to call attention to the fact that when the construction of this provision was first raised in litigation in Lukens Steel Co. v. Perkins, 70 App.D.C. 354, 107 F.2d 627, 630, the point now made by counsel for the Secretary of Labor was not advanced, but it seemed to be assumed that the words "currently operating in the locality" were applicable to and limited each of the three alternatives. Apparently the present construction sought to be applied by counsel for the Secretary of Labor is more or less of an afterthought.
Such a type of interpretation and construction of words was satirized by a great English satirist in the well-known book 'Through the Looking Glass'. This book records a dialogue between Alice and Humpty Dumpty and says:
"When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean -- neither more nor less.'
"The question is,' said Alice, 'whether you can make words mean so many different things.'
"The question is,' said Humpty Dumpty, 'which is to be master -- that's all."
The Court is not going to place its seal of approval upon that type of construction of plain English words. The Court is of the opinion that under no circumstances is it reasonable to construe the word 'locality' as applicable to the entire United States of America and calling the entire country a single 'locality'.
The Court is especially impelled to this conclusion by the opinion of the Court of Appeals for the District of Columbia Circuit in Lukens Steel Co. v. Perkins, 70 App.D.C. 354, 107 F.2d 627. That case involved the validity of an order under this statute, which fixed wages in the steel industry at a single figure for an area of about fourteen states and the District of Columbia and referred to them as a 'locality'. In an opinion written by Mr. Justice Justin Miller, in which Mr. Justice Vinson, then a member of that court, concurred, it was very cogently and persuasively held that the word 'locality' may not be used to describe a broad area consisting of fourteen states and the District of Columbia. On this point the court made the following observations, 107 F.2d at pages 630, 631:
'It is true that the word locality is one of somewhat indefinite meaning. Still, its indefiniteness has certain well recognized limits in common meaning and usage, which exclude and forbid the interpretation placed ...