
    UNITED STATES v. GRAND FLOWER & ORNAMENT CO., Inc., et al.
    District Court, S. D. New York.
    Oct. 5, 1942.
    Mathias- F. Correa, U. S. Atty., of New York City, for plaintiff.
    Barry & Katzman, of New York City, for respondents.
   KENNEDY, District Judge.

This matter is before the Court upon a motion of the Government to strike the demand for a jury by the respondents. It arises out of a consent decree against respondents in a proceeding involving the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., which decree, the Government claims, has been violated by defendants in such a manner as to constitute a contempt. The original proceeding was brought in the name of the Administrator of the Wage and Hour Division, Department of Labor.

The Government here challenges the right of the respondents to a trial by jury upon the contempt, charge. I gather from the argument and trial briefs of counsel that the practical point in controversy between them is whether or not the proceeding comes within the purview of Section 385 of Title 28 U.S.C.A., or of Sections 381 to 383 and 386 to 390 of the same title. If the proceeding comes under the latter, a jury trial appears to be allowed, but if it comes under Section 385, it is not mandatory.

Under Sections 381 etc., it is provided that they shall not apply to contempts committed in the presence of the Court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in disobedience of any lawful writ, process, or other rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of the United States, which classes of proceedings for contempt it is provided should be proceeded against in the manner already provided by statute.

Applying this statute to the case at bar, it would appear that the original suit upon which the contempt proceeding is based was prosecuted “on behalf of, the United States,” inasmuch as it was brought by the Administrator under the Wage and Hour Law, a United States official, in pursuance of a special statute. If this be the correct construction of the statute, then a trial for contempt by jury is not assured the respondents, but the proceeding may be brought under Section 385. This seems to be the logic of the opinion of the Supreme Court in Hill v. United States, 300 U.S. 105, 57 S.Ct. 347, 81 L.Ed. 537, where the sections relied upon by respondents are partially construed. The particular form of procedure in presenting the contempt to the Court would not appear to be material.

For the reasons stated, the motion to strike the demand for a jury on the part of the respondents will be sustained, and an order may be entered accordingly, reserving exceptions to respondents.  