GEWIN, Circuit Judge
(dissenting).
I respectfully dissent. The sole question before the Court is coverage under the Fair Labor Standards Act, 29 U.S.C. A. § 201. The employee involved was hired as a night watchman by the defendant, a construction firm laying a stretch of city street in Houston, Texas. The employee was not paid the minimum wage required to be paid to employees engaged “in the production of goods for commerce”. The street being constructed required an underpass beneath the tracks of a railroad. The street was used for the passage of mail trucks and it was used occasionally by trucks serving several industries and a railroad teamtrack in the area. The new street under construction has not been designated as a part of the highway system of the United States or of the State of Texas, but it does lead into a United States highway. The construction was new.
In my opinion, the lower court was correct in concluding that the work of this employee on a city street in Houston, Texas, constituted only an isolated and local activity and does not constitute engagement in interstate commerce.
The coverage of the Fair Labor Standards Act is not co-extensive with the power of the United States Congress to regulate interstate commerce. Purely local activity is not covered by the Act. As pointed out by Justice Frankfurter in Mitchell v. H. B. Zachry Co., 362 U.S. 310, 80 S.Ct. 739, 4 L.Ed.2d 753:
“While attempted formulas of the relationship to production required for coverage cannot furnish automatic or spontaneous answers to specific problems of application as they arise in their protean diversity, general principles of the Act’s scope afford direction of inquiry by defending the broad bounds within which decision must move. In [A. B.] Kirschbaum Co. v. Walling, [316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638] supra, we found that limits on coverage cannot be understood merely in terms of the social purposes of the Act, in light of which any limitations must appear inconsistent. For the Act also manifests the competing concern of Congress to avoid undue displacement of state regulation of activities of a dominantly local character. Accommodation of these interests was sought by the device of confinement of coverage to employment in activities of traditionally national concern. The focus of coverage became ‘commerce,’ not in the broadest constitutional sense, but in the limited sense of § 3(b) of the statute: ‘trade, commerce, transportation, transmission, or communication among the several States * * *.’ Employment ‘in’ such activities is least affected by local interests.”
Neither was the work of the employee night watchman, working on a city street, “directly” or “vitally related” to commerce. As pointed out in Zachry:
“No independent vitality attaches to conclusory phrases such as ‘directly’ or ‘vitally related.’ What is finally controlling in each case is the relationship of the employment to ‘commerce,’ in the sense of the statute * * »
It seems to be inconceivable that Congress intended that every item of work done on every city street that is incidentally used in interstate commerce to be covered by the Act. If so, the same rule would apply to all sidewalks used by mail carriers or messengers who may be delivering goods for shipment in interstate commerce. Every farm to market road, every lane, trail and alley would be subject to the same construction. All interstate commerce and interstate travel • originates in the same local area and on some local street. Ultimately, “all roads-lead to Rome.” If Congress had intended the law to be such, it could have said so with little effort and with simple language.
