Alstate Construction Company v. Durkin/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice FRANKFURTER concurs, dissenting.

The Court reasons that if the man who is building or repairing an interstate highway is 'engaged in commerce', the one who carries cement and gravel to him from a nearby pit is 'engaged * *  * in the production of goods for commerce'. Yet if that is true, how about the men who produce the tools for those who carry the cement and gravel or those who furnish the materials to make the tools used in producing the cement and gravel? Each would be essential to the highway worker 'engaged in commerce'. Yet the circle gets amazingly large once we say that 'the production of goods for commerce' includes the 'production of goods for those engaged in commerce.' Cf. McLeod v. Threlkeld, 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538.

A person who is maintaining or repairing interstate transportation facilities is 'engaged in commerce'. Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 496, 87 L.Ed. 656. A person who is creating articles destined for the channels of interstate commerce and all others who have such a close and immediate connection with the process as to be an essential or necessary part of it are engaged in 'the production of goods for commerce'. See Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 1120, 86 L.Ed. 1638. If those who serve those 'engaged in commerce' are also included, a large measure of cases affecting commerce are brought into the Act. Yet the history of the Act shows that no such extension of the federal domain was intended. See Kirschbaum Co. v. Walling, supra, 316 U.S. at pages 522-523, 62 S.Ct. at pages 1119-1120. If those whose activities are necessary or essential to support those who are 'engaged in commerce' are to be brought under the Act, I think an amendment of the Act would be necessary.