The sole activity of a mutual irrigation company owned entirely
by farmers is the collection, storage, and distribution of water
for irrigation purposes, wholly within Colorado. The water is
supplied by the company to farmers at headgates on the company's
canals, whence it is taken into the farmers' own laterals and used
by them in the production of agricultural products to be shipped in
interstate commerce. The company is nonprofit, and distributes
water only to its stockholders.
Held: the company's field employees (ditch riders, lake
tenders, and maintenance men) and its bookkeeper are within the
coverage of the Fair Labor Standards Act, as employed in an
"occupation necessary to the production" of goods for interstate
commerce, within the meaning of § 3(j), and are not exempt under §
13(a) as "employed in agriculture." Pp.
337 U. S.
756-770.
1. The fact that a particular activity is necessary to
agricultural production does not require the conclusion that it is
agricultural production. P.
337 U. S.
759.
2. The test of whether a particular type of activity is
agricultural is whether the activity is carried on as part of the
agricultural function or is separately organized as an independent
productive activity. P.
337 U. S.
761.
3. The irrigation company is not engaged in "agriculture,"
within the meaning of § 3(f) of the Act, since it owns no farms,
raises no crops, and is not engaged in cultivating or tilling the
soil or in growing any agricultural commodity. Pp.
337 U. S.
762-764.
4. In § 3(f) of the Act, which defines "agriculture," the word
"production" is not used in the special expanded meaning in which
it is used in § 3(j) of the Act. Pp.
337 U. S.
764-766.
Page 337 U. S. 756
5. The activities of the employees in question are not exempt
under § 3(f) as practices "performed by a farmer or on a farm." Pp.
337 U. S.
766-768.
6. Assuming that the agricultural exemption includes the work of
persons who do no farming, but are employed by farmers, the
employees here in question are nonetheless not exempt, since they
are employed not by farmers, but by the company, and the fact that
the company is owned by farmers, and is nonprofit, is immaterial.
Pp.
337 U. S.
768-769.
167 F.2d 911 modified and affirmed.
A suit by the Administrator to restrain alleged violations of
the Fair Labor Standards Act by a mutual irrigation company was
dismissed by the District Court, which held the employees in
question exempt as employed in agriculture. The Court of Appeals
reversed, except as to a bookkeeper, whose case it regarded as
moot. 167 F.2d 911. This Court granted cross-petitions for
certiorari. 335 U.S. 809.
Modified and affirmed, p.
337 U. S.
770.
MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.
The principal question to be decided in this case is whether the
employees of a mutual ditch company are exempt from the provisions
of the Fair Labor Standards Act [
Footnote 1] as persons employed in agriculture. The
company is the Farmers Reservoir & Irrigation Company, a
Colorado corporation having an authorized capital stock of
$1,050,000 and an authorized bonded indebtedness of
Page 337 U. S. 757
$850,000, $450,000 of which is presently outstanding in the
hands of the public. The company has central offices in Denver. It
owns four large, and several small, reservoirs, and a system of
canals from 200 to 300 miles long, all in Colorado. The sole
activity of the corporation is the collection, storage, and
distribution of water for irrigation purposes. The water is
diverted from the public streams of Colorado, stored in the
company's reservoirs, and distributed to farmers through the
company's canals.
The company is a mutual one. It does not sell water. It
distributes it only to its own stockholders, who are each entitled
to a limited quantity for each share of stock held. The income of
the company is derived largely from assessments levied on the
stockholders annually to pay for the costs of operating the system.
There are no profits, and no dividends.
The company did not comply with either the recordkeeping or the
wages and hours provisions of the Fair Labor Standards Act, and the
Administrator sought an injunction directed against continuation of
these alleged violations. The company claimed that its employees
were not subject to the Act. These employees fall into two
categories. First, there are the field employees -- ditch riders,
lake tenders, and maintenance men. Their activity, in general,
consists of the physical operation, control, and maintenance of the
company's canals, reservoirs, and headgates. The second category
comprises the company's office force in Denver. For purposes of
this case, it contains only one occupant -- the company's
bookkeeper.
The District Court held that the field employees were engaged in
the production of goods for commerce, as those terms are defined in
§ 3 of the Act, but that the bookkeeper was not. It held, however,
that all of the company's employees were exempt under § 13(a)(6) as
persons "employed in agriculture." This second holding
Page 337 U. S. 758
was reversed, as to the field employees, by the Court of Appeals
for the Tenth Circuit, [
Footnote
2] one judge dissenting, and, in No. 128, we granted the
company's petition for certiorari on the exemption issue. The Court
of Appeals did not pass on the bookkeeper's status. It regarded his
case as moot because his salary was said by the company, in its
brief, to have been raised to $210 per month while the appeal was
pending. The court regarded this as sufficient to establish his
exemption as an administrative employee under § 13(a)(1) of the
Act, and therefore limited its consideration and its reversal of
the District Court to the field employees. In No.196, we granted
the Administrator's cross-petition with respect to the
bookkeeper.
It is conceded here that the courts below were correct in
holding that the field employees are engaged in the production of
goods for commerce. The company, however, argues that this requires
the conclusion that they are employed in agriculture. This argument
rests on the fact that the activities of the company and its
employees are entirely confined within the Colorado. The company
diverts water in Colorado, stores it in Colorado, distributes it in
Colorado to farmers, who, finally, consume it in Colorado. The only
products moving in interstate commerce are the agricultural
commodities produced by the farmers who consume the company's
water. Hence it is said that we can hold that the company's
employees are engaged in the production of goods for interstate
commerce only if we say that their work in supplying water to the
farmers is an integral part of the production of the farm products
which are shipped in interstate commerce. But that production is,
of course, agriculture. Hence, the company's employees, if they are
engaged in the production of goods for commerce, must be exempt as
persons employed in agriculture.
Page 337 U. S. 759
The argument rests on a misconstruction of § 3(j) of the Fair
Labor Standards Act [
Footnote
3] -- the section which the courts below relied on in
concluding that the field employees of the company are engaged in
the production of goods for commerce. Section 3(j) provides
that,
"for purposes of this Act, an employee shall be deemed to have
been engaged in the production of goods if such employee was
employed . . . in
any process or occupation necessary to
the production thereof. [
Footnote
4]"
From the beginning, this Court has refused either to read this
provision out of the Act by limiting the coverage of the Act to
those actually engaged in production or, on the other hand, to
expand it so as to include every process or occupation affecting
production for commerce. We have held that, if an occupation, not
itself production for commerce, has "a close and immediate tie"
with the process of production, it comes within the provisions of §
3(j). [
Footnote 5] Applying
this standard, the Court of Appeals quite properly held that the
field employees here are engaged in an occupation necessary, in the
statutory sense, for the production of agricultural commodities
shipped in commerce. [
Footnote
6]
But the conclusion that the work
is necessary to
agricultural production does not require us to say that it is
agricultural production. This distinction between necessity
Page 337 U. S. 760
and identity, or, differently phrased, between production in the
normal sense and production in the special sense defined in § 3(j),
disposes of the company's contention. The question here is whether
the occupation of the field employees of the ditch company can
itself be termed agriculture. The answer to that question is not
predetermined by the fact that the occupation is within the scope
of the Act because it has a necessary connection, in commerce, with
agricultural production. [
Footnote
7]
Agriculture, as an occupation, includes more than the elemental
process of planting, growing, and harvesting crops. There are a
host of incidental activities which are necessary to that process.
Whether a particular type of activity is agricultural depends, in
large measure. upon
Page 337 U. S. 761
the way in which that activity is organized in a particular
society. The determination cannot be made in the abstract. In less
advanced societies, the agricultural function includes many types
of activity which, in others, are not agricultural. The fashioning
of tools, the provision of fertilizer, the processing of the
product, to mention only a few examples, are functions which, in
some societies, are performed on the farm by farmers as part of
their normal agricultural routine. Economic progress, however, is
characterized by a progressive division of labor and separation of
function. Tools are made by a tool manufacturer, who specializes in
that kind of work and supplies them to the farmer. The compost heap
is replaced by factory produced fertilizers. Power is derived from
electricity and gasoline, rather than supplied by the farmer's
mules. Wheat is ground at the mill. In this way, functions which
are necessary to the total economic process of supplying an
agricultural product become, in the process of economic development
and specialization, separate and independent productive functions
operated in conjunction with the agricultural function, but no
longer a part of it. Thus, the question as to whether a particular
type of activity is agricultural is not determined by the necessity
of the activity to agriculture, nor by the physical similarity of
the activity to that done by farmers in other situations. The
question is whether the activity in the particular case is carried
on as part of the agricultural function or is separately organized
as an independent productive activity. The farmhand who cares for
the farmer's mules or prepares his fertilizer is engaged in
agriculture. But the maintenance man in a power plant [
Footnote 8] and the packer in a
fertilizer factory [
Footnote 9]
are not employed in agriculture, even
Page 337 U. S. 762
if their activity is necessary to farmers and replaces work
previously done by farmers. The production of power and the
manufacture of fertilizer are independent productive functions, not
agriculture.
In the absence of a detailed definition of agriculture, we
should be compelled to determine whether the activity concerned in
the present case -- the diversion, storage, and distribution of
water for irrigation purposes -- is carried on as part of the
agricultural function or is so separately organized and conducted
as to be treated as an independent, nonagricultural productive
function. Fortunately, however, the Fair Labor Standards Act
provides a carefully considered definition which is of substantial
aid in helping us to make that determination.
The definition is contained in § 3(f) of the Fair Labor
Standards Act. It says:
"Sec. 3(f). 'Agriculture' 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."
As can be readily seen, this definition has two distinct
branches. First, there is the primary meaning. Agriculture includes
farming in all its branches. Certain specific practices such as
cultivation and tillage of the soil, dairying, etc., are listed as
being included in this primary meaning. Second, there is the
broader meaning.
Page 337 U. S. 763
Agriculture is defined to include things other than farming as
so illustrated. It includes any practices, whether or not
themselves farming practices, which are performed either by a
farmer or on a farm, incidentally to or in conjunction with "such"
farming operations.
Dealing with these two branches of the definition in order, it
is clear first that the occupation in which the company's employees
are engaged is not farming. The company owns no farms, and raises
no crops. Irrigation, strictly defined -- that is the actual
watering of the soil -- may no doubt be called farming. And the
work of the farmers in seeing to it that the water released from
the company's ditches is properly distributed to the growing plants
undoubtedly is included in farming as being part of the process of
cultivating and tilling the soil. But the significant fact in this
case is that this work is not done by the company's employees.
There is a clear and definite division of function. The ditch
company carries the water in its own canals to the lands of the
farmers. When a farmer desires water so that he can irrigate his
fields, he notifies the company. Its employees then operate the
headgates, which are located on the company's canals and which the
farmers are forbidden to operate, [
Footnote 10] so that the appropriate quantity of water
can pass out of the company's canals and off the company's land
into the farmer's irrigation ditches. The responsibility of the
company's employees ceases when they so release the water. The
water is supplied to the farmer at the headgates, and he takes it
over there and uses it, in his own laterals, as he sees fit, to
irrigate his crops.
Page 337 U. S. 764
The ditch company, then, is not engaged in cultivating or
tilling the soil or in growing any agricultural commodity. It is
contended, however, that it is nevertheless engaged in farming
because of the use in the definition of the words "production . . .
of any agricultural . . . commodities," in addition to the words
cultivation, tillage, harvesting, etc. Since produce is defined in
§ 3(j) of the Act so as to include, "for the purposes of this Act,"
any occupation necessary to production, it is argued that
production of agricultural commodities includes any occupation
necessary to the production of agricultural commodities. It is thus
argued that, in the case of agriculture, as distinguished from
other exemptions, Congress did provide that the exemption should
include not only the occupation named, but also all of those other
occupations whose work is necessary to it.
If Congress intended to convey that meaning by using the word
production in the definition of agriculture, we should, of course,
give the definition its intended scope. But we do not "make a
fortress out of the dictionary." [
Footnote 11] And we have therefore consistently refused
to pervert the process of interpretation by mechanically applying
definitions in unintended contexts.
Lawson v. Suwanee Fruit
& S.S. Co., 336 U. S. 198;
Atlantic Cleaners & Dyers v. United States,
286 U. S. 427. In
the present case, the legislative history confirms what a natural
reading of the language of the agricultural exemption would
indicate -- the word "production" was not there used in the
artificial and special sense in which it was defined in § 3(j).
Certainly, if it were meant in that sense, it would make surplusage
of the remainder of the carefully wrought definition. And it would
hardly have been innocuously placed among such specific terms as
"cultivation," "tillage," "growing," and "harvesting."
Page 337 U. S. 765
But we need not speculate on the congressional meaning. The
history of the use of the word production is crystal clear. It was
added to the definition of agriculture in order to take care of a
special situation -- the production of turpentine and gum rosins by
a process involving the tapping of living trees. There had been
indications that such activity would not be considered agriculture,
since turpentine is neither cultivated nor grown. [
Footnote 12] And a special amendment, §
15(g), had been added to the Agricultural Marketing Act specifying
that commodities so produced were to be considered agricultural
commodities for the purposes of that Act. [
Footnote 13] To insure the inclusion of the
process within the agricultural exemption of the Fair Labor
Standards Act, the word production was added to § 3(f) in
conjunction with the words "including commodities defined as
agricultural commodities in § 15(g) of the Agricultural Marketing
Act as amended." [
Footnote
14]
Page 337 U. S. 766
It is unnecessary to decide whether, in view of this history,
the word production in the agricultural exemption should be limited
to those specific products defined in § 15(g) of the Agricultural
Marketing Act, or should be given its normal meaning. The only
question here is whether the word was used in the special expanded
meaning defined in § 3(j) of the present Act. It is clear that it
was not used in this special sense. And it follows that it does not
encompass the work of the company's employees who cannot be said,
in any normal use of the term, to be engaged in the production of
agricultural commodities. Their work is necessary to agricultural
production, but it is not production.
The work of the company's employees is not, then, farming. But,
coming to the second branch of the definition of agriculture, it is
equally clear that it does constitute a practice performed as an
incident to or in conjunction with farming. If the Act exempted all
such practices, the company would be exempt. But the exemption is
limited. Such practices are exempt only if they are performed by a
farmer or on a farm. [
Footnote
15]
Page 337 U. S. 767
This language was carefully considered by Congress. As
originally introduced, the exemption covered such practices only if
performed by a farmer. On the floor of the Senate, it was objected
that this would exclude the threshing of wheat or other functions
necessary to the farmer if those functions were not performed by
the farmer and his hands, but by separate companies organized for
and devoted solely to that particular job. [
Footnote 16] To take care of that situation, the
words "or on a farm" were added to the definition. Thus, the wheat
threshing companies, even though they were separate enterprises,
were included in the exemption because their work was incidental to
farming and was done on the farm. [
Footnote 17] In the face of this careful use of language,
we are required to limit the exemption as Congress intended it
should be limited -- to practices performed by a farmer or on a
farm. In the present case, it is clear that the work of the
company's employees is done neither on a farm or by farmers.
Clearly, it is not done on a farm. Nor, we think, is it done "by
a farmer." Since we have already said that
Page 337 U. S. 768
the company's employees are not engaged in farming, it is
perhaps too obvious that the work that they do is not done by
farmers. But an argument to the contrary is made. It is based on
the fact that the company is a mutual one, owned by the farmers
whom it serves. It is argued that the company is therefore merely a
formal conduit or agent by which the farmers cooperatively operate
their common water supply system and cooperatively employ the men.
The men are therefore said to be farmers because they are said to
be employed by farmers.
Even if it were conceded that the exemption includes the work of
persons who do no farming, but are employed by farmers, it still
does include the company's employees, because they are not, in
fact, so employed. There is a difference between the hiring of
mutual servants by a group of employers and the creation by them of
a separate business organization, with its own officers, property,
and bonded indebtedness, which, in turn, hires working men. Those
working men are in no real sense employees of the shareholders of
the organization. They are hired by the organization, fired by the
organization, controlled and directed by the organization, and paid
by it. The fact that the organization is a corporate one adds to
the picture, but is not controlling. The controlling fact is that
the company has been set up by the farmers as an independent entity
to operate an integrated, unitary water supply system. The function
of supplying water has thus been divorced by the farmers from the
farming operation, and set up as a separate and self-contained
activity in which the farmers are forbidden, by the company's
bylaws, to interfere. [
Footnote
18] Those employed in that activity are employed by the
company, not by the farmers who own the company. The fact that the
company is not operated for profit is immaterial.
Page 337 U. S. 769
It is nonetheless the employer. Of course, if Congress had
intended the absence of profit to be material, and had provided
that the employees of agricultural cooperatives should be exempted
because their work is done for the benefit of the farmers who own
the cooperatives, we should honor that provision. But the
legislative history of the existing definition clearly shows that
no such result was intended. [
Footnote 19]
We conclude, therefore, that the Court of Appeals correctly
determined that the field employees of the company are not exempt
from the provisions of the Fair Labor Standards Act as persons
employed in agriculture. [
Footnote 20] There remains for consideration the
bookkeeper's case. The Court of Appeals limited its reversal of the
District Court to the field employees because it regarded the
bookkeeper as exempt, in any event, as an administrative employee.
We need not decide whether it erred in so doing, since the company
in this Court disclaims -- as it did in the District Court -- any
reliance on the administrative exemption. And our discussion with
regard to the field employees makes it clear that the Court of
Page 337 U. S. 770
Appeals decision is, in the absence of any claim of
administrative exemption, equally applicable to the bookkeeper. It
has been stipulated that his work is a necessary part of the
operation of the company's water supply system. The fact that it is
clerical, rather than manual, is immaterial.
Borden Co. v.
Borella, 325 U. S. 679. It
follows that his case is on all fours with that of the field
workers, and that he is engaged, as they are, in the production of
goods for commerce, and is not exempt as employed in agriculture.
The judgment of the Court of Appeals reversing the District Court
and remanding the case to it should therefore be treated as
applicable to both types of employee.
As so modified, the judgment is
Modified and affirmed.
* Together with No.196,
McComb, Wage & Hour
Administrator v. Farmers Reservoir & Irrigation Co., on
certiorari to the same Court.
[
Footnote 1]
52 Stat. 1060, 29 U.S.C. §§ 201-219.
[
Footnote 2]
167 F.2d 911.
[
Footnote 3]
52 Stat. 1061, 29 U.S.C. § 203(j).
[
Footnote 4]
Emphasis added.
[
Footnote 5]
Kirschbaum Co. v. Walling, 316 U.
S. 517,
316 U. S. 525;
Armour & Co. v. Wantock, 323 U.
S. 126;
Roland Electric Co. v. Walling,
326 U. S. 657,
326 U. S.
663.
[
Footnote 6]
"Necessary" understates the case. The water supplied by the
company's employees is, in this case, an indispensable prerequisite
for agricultural production. Cultivation began only with
irrigation, and it will end if the irrigation ceases. Under such
circumstances, there can be no doubt of the immediacy of the
connection between the production, by the farmers, for commerce and
the work of the petitioner's field employees in providing water for
irrigation.
[
Footnote 7]
The fallacy of the notion that an exemption carries with it all
occupations whose nexus with interstate commerce is the exempted
occupation is demonstrated by authority as well as by logic. In
Boutell v. Walling, 327 U. S. 463, for
example, the question was whether men who were employed by a
service company to service trucks carrying goods in interstate
commerce were exempt under § 13(b)(1) as the employees of an
interstate carrier subject to regulation by the Interstate Commerce
Commission. Their only connection with commerce was their work on
the trucks of the interstate carrier. The Court divided as to
whether the employees were themselves employed by the carrier
within the meaning of the Motor Carrier Act, and therefore exempt.
But there was no suggestion in either of the opinions in the case
that, if not employed by the carrier, they were nevertheless exempt
because their only connection with interstate commerce was through
an enterprise which was itself exempt.
In only one case brought to our attention was a contention
presented similar to that made here. In
Dize v. Maddrix,
144 F.2d 584,
aff'd, 324 U. S. 324 U.S.
697, the local manufacture of boxes was held to be within the Act
because the boxes were used by fishermen to ship their fish in
interstate commerce. The fishermen were exempt under a specific
exemption in the Act covering fishing, and it was argued that the
manufacturer of the boxes should therefore be exempt as "fishing"
because its only connection with commerce was through fishing. The
argument was rejected summarily.
[
Footnote 8]
Meeker Cooperative Light & Power Assn. v.
Phillips, 158 P.2d
698.
[
Footnote 9]
McComb v. Super-A Fertilizer Works, 165 F.2d 824.
[
Footnote 10]
Article VII, § 5 of the Company's By-Laws provides as
follows:
"All headgates in the Company's canals shall be operated and
maintained by and under the exclusive control of this company, and
no stockholder or any other person shall have the right to
interfere with, reconstruct, repair, change, or alter, open, or
close said headgates or any of them in any manner whatsoever."
[
Footnote 11]
L. Hand, J., in
Cabell v. Markham, 148 F.2d 737, 739,
aff'd, Markham v. Cabell, 326 U.
S. 404.
[
Footnote 12]
See S.Rep. No.230, 71st Cong., 2d Sess. (1930).
[
Footnote 13]
46 Stat. 1550, 12 U.S.C. § 1141j(g). This language originated in
S. 2354, 71st Congress. That bill was reported to the Senate
(S.Rep. No.230) and passed. 72 Cong.Rec. 7016 (1930). It did not
come to a vote in the House. Its substance was added by the Senate
to H.R. 16836, an amendment to the oleomargarine tax laws, and in
this form became law.
See 74 Cong.Rec. 6688, 7196
(1931).
[
Footnote 14]
The word "production" was not actually contained in either the
House or Senate bills as originally passed. The Senate bill, S.
2475, 75th Cong., 1st Sess., as passed, contained the reference to
§ 15(g) of the Agricultural Marketing Act in the following way:
". . . 'agriculture' . . . further includes the definition
contained in subdivision (g) of Section 15 of the Agricultural
Marketing Act. . . ."
See 81 Cong.Rec. 7659 (1937). This language was faulty,
since the section referred to was not a definition of agriculture,
but of an agricultural commodity. The language was retained in this
form when the bill was first debated in the House.
See 82
Cong.Rec. 1580, 1690 (1937). The House voted to recommit the bill.
Id. at 1835. In committee, the definition of agriculture
was completely redrafted, and the reference to the Agricultural
Marketing Act omitted.
See H.R.Rep. No.2182, 75th Cong.,
3d Sess. (1938). The bill passed the House in this form. In
conference, it was agreed that the House version of the definition
of agriculture should be adopted, with three stated exceptions.
Only one of the three is relevant here -- the reinsertion of the
reference to the Agricultural Marketing Act. The word "production"
was added in conjunction with that reference, and was obviously
used only to make the reference grammatically correct. The
committee report states the change in this way:
"The production of commodities defined as agricultural
commodities in section 15(g) of the Agricultural Marketing Act is
included within the definition of agriculture. . . ."
H.R.Rep. No.2738, 75th Cong., 3d Sess., p. 29 (1938).
[
Footnote 15]
Although not relevant here, 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 the
farming operation of the farmer on whose premises the processing is
done. Such processing is therefore not within the definition of
agriculture.
Bowie v. Gonzalez, 117 F.2d 11.
[
Footnote 16]
"MR. TYDINGS. . . . In the case I vizualize . . . , the farmer
is not performing the service. The man to whom I refer makes a
business of doing nothing but threshing. He owns his own machine,
and hauls it from farm to farm, and enters into contracts with
farmers to thresh their crops, the point being that, while he is
dealing with an agricultural commodity, he is not necessarily a
farmer, and he is not doing work ordinarily done by a farmer."
"MR. BORAH. He is doing the exact work which the farmer did
before he took it up."
"MR. TYDINGS. That is true, but I do not think the bill is drawn
in sufficient detail to bring the man to whom I refer under its
provisions of exemption."
81 Cong.Rec. 7653 (1937).
See also the comments of
Senator Bone,
id. at 7659.
[
Footnote 17]
81 Cong.Rec. 7888 (1937).
[
Footnote 18]
See n 10,
supra.
[
Footnote 19]
The debate in both Houses shows a clear awareness that the
employees of farmers cooperative associations would not be exempted
as employees of farmers. At various times, amendments were offered
and adopted exempting the employees of certain types of
cooperatives.
See 81 Cong.Rec. 7947 (1937), 82 Cong.Rec.
1783 (1937). All such special exemptions were, however, omitted
from the bill as it finally became law.
See also
Interpretative Bulletin No. 10, issued by the Administrator, Wage
& Hour Division, 29 C.F.R. § 780, 81-82 (Supp. 1947).
[
Footnote 20]
While it lacks relevance to the question of congressional
intention in 1938, we may note that the precise question here
involved was discussed at length on the Senate floor in 1946 in
connection with certain amendments to the Fair Labor Standards Act.
It was clearly stated, without objection, that employees of an
irrigation company which supplied water to farmers were, like the
employees of a power company which supplies electricity to farmers,
not exempt as employed in agriculture. 92 Cong.Rec. 2318-2319
(1946).
MR. JUSTICE FRANKFURTER, concurring.
Both in the employments which the Fair Labor Standards Act
covers and in the exemptions it makes, the Congress has cast upon
the courts the duty of making distinctions that often are bound to
be so nice as to appear arbitrary in relation to each other. A
specific situation like that presented in this case presents a
problem for construction which may with nearly equal reason be
resolved one way rather than another. Except when a conflict
between Courts of Appeals requires settlement by this Court, it
does not seem to me very profitable to bring the individual cases
here for adjudication. But, since this case is here, it has to be
decided. The nature of the problem being what it is, I acquiesce in
the judgment that commends itself to the majority of my
brethren.
MR. JUSTICE JACKSON, dissenting.
If employees operating these irrigation works are so necessary
to the raising of crops destined for interstate commerce that they
are "producing goods for commerce"
Page 337 U. S. 771
within the Fair Labor Standards Act, I cannot agree that they
are not "employed in agriculture" within its exemptions.
It is admitted that, as a separate enterprise, this handling of
irrigation water does not bring these employees within the Act
regulating interstate commerce, because the water is captured,
stored, transmitted, delivered and consumed solely within one
state. The reasoning by which they are nevertheless brought under
the Act is this: To deliver water on arid lands is so inseparable
from agriculture thereon that it is to produce goods, that is,
agricultural crops, for commerce.
However, 29 U.S.C. § 213(a)(6) exempts individuals "employed in
agriculture." It would seem logical that one who is producing
agricultural products for commerce is "employed in agriculture."
But, according to the Court, he is not. The irrigation activity
seems endowed with some esoteric duplicity not apparent on its
face. When we read 29 U.S.C. § 206 or § 207, the irrigator is
producing crops because his activity is inseparable from crop
production; but, when we read on a half-dozen sections and get to
29 U.S.C. § 213(a)(6), the irrigation has been converted into a
distinct and disconnected enterprise.
This paradox is attributed to the definition of agriculture in
29 U.S.C. § 203(f), which is said to make a distinction between
agricultural production "in the normal sense" and the same thing
"in the special sense" of § 3(j) of the statute, 29 U.S.C. §
203(j). However, its text and history seem to show that the
congressional purpose was not to make the agricultural exemption
less comprehensive than "normal" agricultural operations, but to
make certain that nothing connected with farming remained subject
to the Act. It exempted "any practices . . . performed by a farmer
or on a farm as an incident to or in conjunction with farming . . .
operations." Thus, the farm exemption did not end at the line
fence.
Page 337 U. S. 772
This irrigation seems to me to be "performed by a farmer," and
hence, by definition, part of the operation of agriculture.
Certainly the agricultural exemption is not lost because farmers
pool their capital through a mutual nonprofit corporation for no
other purpose whatever than to carry water to their own arid lands
to make it possible to produce crops. The only purpose of the
corporate form is to limit individual liability for a project which
is subsidiary to each farmer's main enterprise but which is beyond
the means or demands of any of them as individuals. Only the
landowners can become stockholders, only the stockholders can
become water users, and the operating costs and capital charges are
met by assessing them in proportion to their water benefits.
Employees engaged in the water operation would be on a quite
different footing if it were a water company selling water to the
public or the farmer for profit.
If, as the Court holds, these employees are engaged in
production of agricultural crops for commerce, I do not see how it
can hold that they are not engaged in agriculture. If the Court
could say "To be or not to be: that is the question," it might
reasonably answer in support of either side. But here, the Court
tells us that the real solution of this dilemma is "to be" and "not
to be" at the same time. While this is a unique contribution to the
literature of statutory construction, I can only regret the great
loss to the literature of the drama that this possibility was
overlooked by the Bard of Avon. It will probably now be as great a
surprise to the proponents of the agricultural exemption as it
would have been to Shakespeare, had it been suggested to him.