Jones v. Gaylord Guernsey Farms

• Decision Date: 30 June 1942
• Docket Number: No. 2459.,2459.
• Citation: 128 F.2d 1008
• Parties: JONES, Collector of Internal Revenue, v. GAYLORD GUERNSEY FARMS.
• Court: U.S. Court of Appeals — Tenth Circuit

128 F.2d 1008 (1942)

JONES, Collector of Internal Revenue, v. GAYLORD GUERNSEY FARMS.

No. 2459.

Circuit Court of Appeals, Tenth Circuit.

June 30, 1942.

Warren Wattles, Sp. Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., J. Louis Monarch, A. F. Prescott, and Arthur L. Jacobs, Sp. Assts. to Atty. Gen., and Charles E. Dierker, U. S. Atty., and George McElroy, Asst. U. S. Atty., both of Oklahoma City, Okl., on the brief), for appellant.

Geo. M. Green, of Oklahoma City, Okl. (Robt. M. Rainey, Streeter B. Flynn, H. M. Peck, and Frank G. Anderson, all of Oklahoma City, Okl., on the brief), for appellee.

Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

The question presented in this appeal is whether the services performed by certain employees of E. K. Gaylord during the years 1936, 1937, 1938 and 1939, were such that they were exempt from the general provisions of the Social Security Act. 42 U.S.C.A. § 301 et seq. E. K. Gaylord, the taxpayer, owned and operated Gaylord Guernsey Farms, consisting of approximately eight hundred acres, near Oklahoma City, Oklahoma. During the years in question he owned a herd of two hundred seventy-five dairy cows, which produced approximately 300 gallons of milk per day. The milk was cooled and bottled on the farm. Part of it was processed into cream, buttermilk and cottage cheese. All of these products were sold to individuals, hotels and grocery stores, both at wholesale and retail, and were delivered by trucks. Nothing was processed save what was produced on the farm, and no other products were marketed or sold. During the time in question, the taxpayer also raised blooded livestock for sale. This stock was exhibited at different fairs. The employees in question consist of two bottlers and coolers, four or more truck drivers, two or more carpenters, two showmen, a bookkeeper, and a stenographer.

The coolers and bottlers lived on the farm. The truck drivers did not live on the farm, but came early in the morning and drove the loaded trucks to the city and sold and delivered the milk products and collected therefor. The carpenters did not live on the farm. Their duties consisted of building and repairing sheds and fences, as well as doing repair work generally. They also did ordinary jobs around the farm when not otherwise engaged. The showmen's work consisted of preparing and conditioning the show cattle for exhibit. All their work, except when at a fair, was done on the farm. The stenographer worked in the taxpayer's office in town and devoted part of her time to work not connected with the farm. Her work in connection with the farm consisted in attending to registration of cattle, answering telephones concerning milk orders, and work of that nature. The bookkeeper kept the records and accounts pertaining to the operation of the farm.

It is claimed, and the court so held, that these employees are exempted from the operation of the act by Section 811(b) (1) and Section 907(c) (1) of the Act, 49 Stat. 620. The two sections are identical, and provide that:

"Section 811. When used in this title sections 1001 to 1010 of this chapter —

* * * * *

"(b) The term `employment' means any service, of whatever nature, performed within the United States by an employee for his employer, except —

"(1) Agricultural labor * * *."

The act itself did not define the term "agricultural labor." Regulation 90, promulgated under Title IX of the Social Security Act, defined the term as follows:

"Art. 206(1). Agricultural labor. — The term `agricultural labor' includes all services performed —

"(a) By an employee, on a farm, in connection with the cultivation of the soil, the harvesting of crops, or the raising, feeding, or management of live stock, bees, and poultry; or

"(b) By an employee in connection with the processing of articles from materials which were produced on a farm; also the packing, packaging, transportation, or marketing of those materials or articles. Such services do not constitute `agricultural labor,' however, unless they are performed by an employee of the owner or tenant of the farm on which the materials in their raw or natural state were produced, and unless such processing, packing, packaging, transportation or marketing is carried on as an incident to ordinary farming operations as distinguished from manufacturing or commercial operations.

"As used herein the term `farm' embraces the farm in the ordinarily accepted sense, and includes stock, dairy, poultry, fruit, and truck farm, plantations, ranches, ranges, and orchards.

"Forestry and lumbering are not included within the exception."

A regulation promulgated by an administrative body charged with the administration of an act is entitled to great weight, and unless contrary to the legislative intent, ought to be upheld. United States v. Stanolind Crude Oil Co., 10 Cir., 113 F.2d 194; Nicholas v. Richlow Mfg. Co., 10 Cir., 126 F.2d 16. The 1939 amendment to the Social Security Act defined "agricultural labor" in substantially the same terms as did Regulation 90 by the Treasury Department. Whether the employees in question are excluded from the act, therefore, is to be determined from an interpretation of Regulation 90.

The regulation establishes two factors necessary in determining the scope of the exclusion — the nature of services rendered by an employee, and the dominant purpose of the enterprise in which the employer is engaged. An employee is excluded if he does work on a farm in connection with the...