United States v. Turner Turpentine Co.

• Decision Date: 15 April 1940
• Docket Number: No. 9306.,9306.
• Citation: 111 F.2d 400
• Parties: UNITED STATES v. TURNER TURPENTINE CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

111 F.2d 400 (1940)

UNITED STATES v. TURNER TURPENTINE CO. et al.

No. 9306.

Circuit Court of Appeals, Fifth Circuit.

April 15, 1940.

Thomas G. Carney and Sewall Key, Sp. Assts. to Atty. Gen., Samuel O. Clark, Jr., Asst. Atty. Gen., and T. Hoyt Davis, U. S. Atty., of Macon, Ga., for appellant.

Harley Langdale, J. Lundie Smith, Jr., and B. Lamar Tillman, all of Valdosta, Ga., for appellee.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellees, owners and operators of a Georgia turpentine farm, first sought unsuccessfully¹ to enjoin the assessment and collection of taxes under the Social Security Act, U.S.C., Title 42, Sections 1001, 1004, 1007 and 1101, 42 U.S.C.A. §§ 1001, 1004, 1007, 1101, then paid the taxes² and brought this suit for their refund. Upon the facts which were without dispute, the District Judge thought that the labor with regard to which the taxes were imposed and collected, to-wit, the production of gum from oleoresin by the scarification of living pine trees and its processing into gum spirits of turpentine and gum rosin, was "agricultural labor" within the exception of Section 811 of the act, U.S.C., Title 42, 42 U.S.C.A. § 1011; that the taxes had been wrongfully exacted and must be refunded; and on full findings of fact³ and conclusions of law⁴ he gave judgment for appellees. This appeal finds no fault with the fact findings. But it does assail the conclusions of law and the judgment for appellees as unsupported by the facts they purport to rest on and as directly in the teeth of the decisions,⁵ statutes⁶ and rulings⁷ it cites and relies on, and particularly of the Social Security Act amendment, approved August 10, 1939, effective January 1, 1940, 42 U.S.C.A. § 1011, specifically setting forth the content of the term agricultural labor as used in the act and embracing in that content, labor employed in turpentine farming operations of the kind in question here.

Appellees vigorously dispute this. They point out that none of the decisions relied on had to do with statutes or situations like the one at bar; that the statutes, (except the Social Security Amendment of 1939) and the Attorney General's opinion, appellant relies on as persuasive, are really not in point; that the cumulative bulletin is of no force as authority because its correctness is the very question now for decision; while the Act of Congress in 1939 in amending the Social Security Act to specifically declare the content of the term "agricultural labor", instead of aiding appellant on the question, defeats it. For, a clarifying act, it not only by precise definition, includes the labor in question as "agricultural labor", but it takes the definition from the Agricultural Marketing Act as amended in 1931 and of force when the original Social Security Act was passed. In addition, appellees cite in affirmative support, lexicographers, treatises and decisions giving the term "agriculture", at the time the act was passed and now, a meaning broad enough to include turpentining, and statutes of the United States and of the turpentine raising states which show a settled legislative understanding that the term "agricultural labor", when used as here, has a content broad enough to include turpentine farming.

We agree with appellees. The federal cases appellant cites are not at all in point. They had to do with the rights and privileges of an entryman, under the homestead laws, to cultivate the land. They properly held that the cupping and boxing of pine trees under the old wasteful and destructive methods then in use, was not cultivation but "destruction", and that the destructive practices there condemned were not permitted under those laws. Pridgen v. Murphy, supra, construed the Georgia Workmen's Compensation Act, which used the term "farm laborers", and held: that the legislature had used the term in its original sense of the cultivators of land for the production of agricultural crops, and had not meant it to include turpentine operations. But the Georgia legislature at its next session, after the decision was handed down, declared⁸ "the term `agricultural commodities' and `agricultural products' and `farm products' shall include and embrace crude gum (oleoresin) from a living tree or trees, and the following products as processed by the original producer of the crude gum (oleoresin) from which derived."

And in 1939, Acts Ga.1939, p. 241, it specifically declared, "Every original producer * * * of crude gum (oleoresin) * * * and his employees are hereby declared to be, for all intents and purposes, farmers in so far as any statute of this State relates to farming and farmers." In the Florida case of Griffith v. Hulion, supra, decided in 1925, the question for decision was whether a turpentine woodsrider had a lien for his services. Several Florida lien statutes were discussed. Cf. Lowe v. North Dakota Workmen's Compensation Bureau, infra. One gave a lien on the goods of a merchant; one, Sec. 3506, Rev. Gen.St.1920, a lien "in favor of any person performing any labor in, or managing or overseeing, to the cultivation or harvesting of crops", another, Sec. 3505, a lien to persons performing labor or services in the production of turpentine resin. What was said in the opinion 90 Fla. 582, 107 So. 356 in rejecting the claim to a lien under Sec. 3506, "the use of the word * * * `cultivation, removes all doubt on this subject. * * * The process is destructive in its nature * * *. There is no tilling of the ground or fertilizing of the soil around the tree, but a destruction of a portion of the tree in order to obtain the annual flow of the valuable sap.", was unnecessary to the decision, the court holding that plaintiff had his lien under Sec. 3505, and that therefore for his protection and that of persons performing labor or services in the production of turpentine resin, no strained construction of Sec. 3506 to bring them under it was necessary. Further after the decision of that case, the Florida Legislature in 1933, declared, "`crude turpentine gum' (oleoresin), the product of a living tree, or trees, of the pine species" and "gum-spirits-of-turpentine" and "gum resin" as processed therefrom, are hereby classified and declared to be "`agricultural commodities' * * * and `farm products.'" Florida Sessions Act 1933, Chapter 16297.

The Louisiana case cited was one construing the Louisiana Workmen's Compensation Act, No. 20, Acts of La.1914. It merely held that the company which produced crude gum was engaged in the manufacture of resin and turpentine and its employees were engaged in a hazardous trade, within the definition of the act. The Georgia Civil cases cited, held merely that the cutting and cupping of trees by the employees of a life tenant, resulted in permanent injuries to the trees amounting to waste, and was enjoinable at the suit of the remainderman.

In further affirmative support of its position that "agricultural labor" as used in the statute covered the labor in question, appellees in addition to the Georgia and Florida statutes, cite statutes to the same effect from Alabama and Mississippi which, with Georgia and Florida produce more than 90% of the gum turpentine and resin produced in the United States. Alabama Sessions Acts, 1936, Gen.Acts Ala.1936, Ex.Sess., p. 70, declares, "The terms `agriculture commodities,' `agriculture products' and `farm products,' shall include and embrace crude turpentine gum (oleoresin) from a living tree, or trees, of the pine species", while Mississippi General Laws of 1934, Chapter 301, provide, "Crude * * * gum (oleoresin) is a product of a living tree, or trees, of the pine species, and gum-spirits-of-turpentine and gum-rosin as processed therefrom, are hereby classified and declared to be agriculture commodities, agriculture products and farm products." Not content with state statutory support, appellees cite, the Naval Stores Act of 1923, U.S.C., Title 7, Sec. 91, 7 U.S.C.A. § 91, requiring the secretary of agriculture to establish standards for turpentine and resin, and the 1931 amendment of the Agricultural Marketing Act, U.S.C., Title 12, Sec. 1141j, 12 U.S. C.A. § 1141j(g), providing, "as used in this act subchapter, the term `agricultural commodity' includes in addition to other agricultural commodities, crude gum (oleoresin) from a living tree, and * * * gum, spirits of turpentine and gum rosin, as defined in the Naval Stores Act, approved March 3, 1923 section 92 of Title 7." In 1935, in an amendment to the Agricultural Adjustment Act, U.S.C. Title 7, Sec. 608c(2), 7 U.S.C.A. § 608c(2), Congress defined agricultural commodities so as to include "naval stores as included in the Naval Stores Act sections 91 to 99 of this title and standards established thereunder," (including refined and partially refined oleoresin), and this act was approved just 10 days after the Social Security Act. More recently, the Wage Hour Bill, U.S.C., Title 29, Sec. 203(f), 29 U.S. C.A. § 203(f), declared that "agriculture" includes, "farming in all its branches and among other things * * * the * * * cultivation, growing and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 1141j(g) of Title 12, U.S.C.A., as amended)."

As to the 1939 amendment of the Social Security Act, we agree with appellees, that it is to be regarded as interpretative and explanatory of the term as it was used in the original act, and that it is itself a binding and final congressional declaration of what was meant by the term "agricultural labor" as there used. It is now a settled principle of statutory construction that Congress or a legislature in legislating with regard to an industry or activity, must be regarded as having had in mind the actual conditions to which the act will apply, that is, the needs and usages of such activity. When then, Congress in passing an act like the Social Security...