RESPONDENT: Lublin, McGaughy & Associates
LOCATION: United States Senate
DOCKET NO.: 37
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fourth Circuit
CITATION: 358 US 207 (1959)
ARGUED: Oct 21, 1958
DECIDED: Jan 12, 1959
Facts of the case
Media for Mitchell v. Lublin, McGaughy & AssociatesAudio Transcription for Oral Argument - October 21, 1958 (Part 1) in Mitchell v. Lublin, McGaughy & Associates
Audio Transcription for Oral Argument - October 21, 1958 (Part 2) in Mitchell v. Lublin, McGaughy & Associates
You may proceed, Mr. Hofheimer.
Alan J. Hofheimer:
Mr. Chief Justice, may it please the Court.
I think I -- I've said that the Department of Labor launched a two-pronged attack against that firm, the firm that we represent and I used that divisively for this reason that both in the trial court and in the Court of Appeals the Department of Labor stressed the point that plans and specifications were goods.
That was their main frontal attack.
They set out I think to prove that plans and specifications were goods if they could and of course they did not succeed in either tribunal.
Failing that, and as a second prong of the attack was the contention that the employees of this firm were engaged in commerce.
I note that in the appeal on the writ of certiorari to this Court the -- the seal has been slightly reversed and now the first frontal attack is that the employees are engaged in commerce and secondly, we meet the issue that plans and specifications are goods.
I should like to say at outset that -- and I think it should be clearly understood, that our clients in this case, the respondent -- respondents are independent art -- architects and engineers.
Case after case in the various Courts of Appeal have been resolved, some one way and some the other where draftsmen and chainmen and other people who do the same type of work that our employees do who are employed by contractors.
I think there is not a large contractual firm that doesn't employ chainmen and draftsmen and other people similarly to those employed by an independent firm, but we think that under the Act, it's very important to bear in mind the fact because we get to the question eventually of remoteness to bear mind in the fact, that the firm that we represent the defendants in this case as originally brought, do not participate in any construction whatsoever.
They -- there's no evidence in the record of their having any job site engineers and there is no evidence in the record of their participating actively in any construction work at all.
Now with that as a background I should like first to direct my argument to the question of whether or not plans and specifications are goods under this Act.
I'd like to say here that I do not believe that there's a single court in the country that has held that plans and specifications are goods.
William O. Douglas:
Well Brown case in the Circuit Court.
Alan J. Hofheimer:
In the Brown case Mr. Justice it was particularly held in the last sentence of the Brown case that we will not pass upon that point because we will hold that the employees are engaged in commerce and the judge in the Brown case particularly said that he wouldn't decide whether or not plans and specifications are goods.
He wasn't called upon to pass on that fact.
The case that we think is the leading exposition, in other words, in the Brown case -- we think the case that is the leading case on this point in that it discusses the matter or one of the leading cases because Judge Learned Hand did in a case dealing with the -- not with plans and specifications but with a -- a similar typewritten manifestation.
In the -- in the case that the appellant refers to as the old Turpin case, which is a District Court case decided by Judge Chesnut down in Baltimore.
He went into the matter in great detail and we think with a great deal of effectiveness and conviction and with the Court's permission I should like to read what Judge Chesnut said.
This is case is McComb against Turpin.
It's in 81 F.Supp. 86 and I'm reading from that brief.
Judge Chesnut with impressive clarity and reason then he explained why plans, drawings, and specifications are not goods.
They are only a physical embodiment in words of professional conclusions.
The opinion continues in the words of Justice Holmes in Federal Base Ball Club of Baltimore against National League of Professional Base Ball Clubs, 259 U.S. 200 and I quote, “Personal effort, not related to production, is not a subject of commerce.
That which in its consummation is not commerce does not become commerce among the States because the transportation that we have mentioned takes place.
A firm of lawyers sending out a member to argue a case, on the Chautauqua lecture bureau -- or the -- or the Chautauqua lecture bureau sending out lecturers, does not engage in such commerce because the lawyer or lecturer goes to another State. Certainly the word goods could not be construed to include professional advices and its definition should not be construed to include the type-written or mechanical expression by which the advice is given.
Now that was the opinion of Judge Chesnut on plans and specifications which we think is the only case that we have been able to find and I think our adversary certainly would have found the other if he could tell the other way, this is the only case we've been able to find, dealing directly with plans and specifications.
If the Secretary's contention were accepted in this respect would that sweep under the Act all of these employees or only some of them?
Alan J. Hofheimer:
I think it will probably sweep them all --