Mitchell v. Huntsville Wholesale Nurseries, Inc., 17488.

• Decision Date: 03 June 1959
• Docket Number: No. 17488.,17488.
• Parties: James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant, v. HUNTSVILLE WHOLESALE NURSERIES, INC., and John Fraser, III, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

267 F.2d 286 (1959)

James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant, v. HUNTSVILLE WHOLESALE NURSERIES, INC., and John Fraser, III, Appellees.

No. 17488.

United States Court of Appeals Fifth Circuit.

June 3, 1959.

Bessie Margolin, Asst. Sol., Dept. of Labor, Washington, D. C., Beverley R. Worrell, Regional Attorney, Birmingham, Ala., Stuart Rothman, Solicitor, Sylvia S. Ellison, Albert M. Horn, Attorneys, United States Department of Labor, Washington, D. C., for appellant.

C. V. Stelzenmuller, M. L. Taliaferra, Birmingham, Ala., Charles E. Shaver, Huntsville, Ala., Lanier, Price, Shaver & Lanier, Huntsville, Ala., Burr, McKamy, Moore & Thomas, Birmingham, Ala., of counsel, for appellees.

Before HUTCHESON, Chief Judge, and TUTTLE and BROWN, Circuit Judges.

HUTCHESON, Chief Judge.

The only question presented by this appeal is whether the district judge correctly found and held that the agricultural exemption of the Wage and Hour Act provided by Sec. 13(a)(6) thereof, 29 U.S.C.A. § 213(a) (6), applies to the employees at the Canal Street warehouse of defendant-appellee, Huntsville Wholesale Nurseries, Inc., and as correctly denied the injunction sought by plaintiff-appellant.

The action was brought by the Secretary of Labor under Section 17 of the Fair Labor Standards Act of 1938, as amended,¹ to enjoin Huntsville Wholesale Nurseries, Inc. (herein referred to as Huntsville), and its vice-president and active manager, John Fraser, III, from violating the Act's minimum wage, overtime and record-keeping provisions with respect to employees employed at a packing and storage warehouse (hereinafter referred to as the Canal Street warehouse), located on Canal Street in downtown Huntsville, Alabama, and from shipping in interstate commerce goods produced by such employees.

In their answer and again at the pretrial hearing, appellees admitted that the employees in question were within the Act's general coverage. During the trial, they admitted non-compliance with the Act's requirements and stipulated that appellant would be entitled to injunctive relief unless, as appellees claimed, the exemption contained in Sec. 13(a) (6) of the Act is applicable to the Canal Street warehouse employees.

Section 13(a)(6), 29 U.S.C.A. § 213 (a) (6), exempts employees employed in "agriculture", which under Section 3(f) of the Act, includes:

"* * * farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 15(g) of the Agricultural Marketing Act, as amended), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market."

On the issues thus joined, there was a trial to the court without a jury and a record made up of, answers of both plaintiff and defendant to requests for admission, depositions, and oral testimony which, though comparatively voluminous, presented no substantial conflict with respect to any material fact. The trial concluded, the district judge, on findings of fact and conclusions of law, which sustained Huntsville's defense and rejected plaintiff's theory, entered judgment denying the injunction sought.

Appealing therefrom, plaintiff-appellant correctly, we think, summarizing the material facts² established and found and the legal effect given them by the district judge, and, citing and discussing the cases on which it relies, is here insisting that the judgment denying the injunction was wrongly entered and that it must be reversed with directions to grant the relief sought.

The appellees, in their turn, relying strongly on the breadth and scope of the findings in their favor and the sweeping nature of the agricultural exemption, and exhaustively citing and discussing many cases dealing with and applying the exemption, are here insisting that on this record there is no basis for the holding that the findings and conclusions are clearly erroneous and must be set aside, and urging upon us that the judgment was right and must be affirmed.

A full and careful consideration of the record, the briefs and the arguments in the light of the principles as set down and applied in the controlling cases, convinces us that the appellant is right that the judgment must be reversed with directions to grant the injunction.

Since in this, as in other instances of statutory construction, Captain Cuttle's famous dictum, "The bearings of that obserwation lies in the application of it", applies with full force, and the bearing, that is the force and effect of what is said in each of the many cases cited and discussed by appellant and appellees, lies in each case in its application to the facts of that case, we shall not undertake a review and analysis of the many cases appellant and appellees cite. Confining ourselves to the authoritative cases, we shall draw therefrom and apply to the facts of this case the principles controlling here. In doing so, we shall not undertake to determine whether, as appellees claim, the exemption in the breadth of its withdrawal from the act, like Aaron's rod, swallows up the statute or, as appellant claims, the statute in the sweep of its comprehensive coverage swallows up the exemption. It will, we think, be sufficient for our purpose to cite the controlling cases. Farmers Reservoir & Irr. Co. v. McComb, 337 U.S. 755, 69 S.Ct. 1274, 93 L.Ed. 1672; Maneja v. Waialua, 349 U.S. 254, 75 S.Ct. 719, 99 L.Ed. 1040; Mitchell v. Budd, 350 U.S. 473, 76 S.Ct. 527, 100 L.Ed. 565; Mitchell v. Hertzke, 10 Cir., 234 F.2d 183; Mitchell v. Hunt, 5 Cir., 263 F.2d 913; Chapman v. Durkin, 5 Cir., 214 F.2d 360; and to say that under their holdings and teachings the judgment may not stand.

These cases settle it that the definition of agriculture in the Act combines two distinct meanings. The primary meaning includes the specifically enumerated elemental farming operations such as the cultivation and tillage of the soil, growing and harvesting. The second and broader meaning, on the basis of which the exemption was allowed in this case, includes other incidental practices but "only if they are performed by a farmer or on a farm", as an incident to, or in conjunction with, such farming operations. Farmers Reservoir Irrigation Co. v. McComb, supra, 337 U.S. 763-766, 69 S.Ct. 1274, 1280. This means that the practices in question must relate to the farmer's own farming operations and not to the farming operations of others and must in addition be subordinate to such operations. Maneja v. Waialua and Mitchell v. Budd, supra.

Although Huntsville is a farmer to the extent that it operates Gladstone Farm and has nursery stock growing on the Fraser Place, this is not sufficient to exempt the employees at the Canal Street warehouse, employed in unloading, sorting, grading, trimming, storing, racking, and picking nursery stock received from other sources. This is so for the reason pointed out in the Farmers Irrigation case, that the Act's definition of agriculture requires that the practices be performed by a farmer or on a farm, and there is the additional requirement that the practices be incidental to such farming.

Thus processing on a farm of commodities produced by other farmers is incidental to, or in conjunction with, the farming operation of the other farmers and not incidental to, or in conjunction with, farming operations of the farmers on whose premises the processing is done. Such processing is therefore not within the definition of agriculture. 337 U.S. at page 766, 69 S.Ct. 1274.

It was and is, therefore, of the greatest importance to appellees' case that it be found and held that the rosebushes grown in Texas are grown by Huntsville, and...