The opinion
HUTCHESON, Chief Judge
(dissenting).
I agree with the holding of the majority on the question most labored in the case, that the helpers involved are employees of the respondent, and if I could agree that the containers handled by them were in commerce when handled by them, I could agree that the decree must be affirmed.
I agree, too, with the majority that, upon the question whether the empty containers when handled by the helpers were in commerce, the decision in Walling v. Jacksonville Paper Co., 317 U.S. 564 , 63 S.Ct. 332 , 87 L.Ed. 460 , is controlling here. Since, however, “the bearings of that observation lies in the application of it”, I hasten to add that the application to the facts of this case of the principles declared and applied there require not the affirmance but the reversal of the decree.
It is true that the opinion at page 567 of 317 U.S. at page 335 of 63 S.Ct. declares (a declaration with which I fully agree): “It is clear that the purpose of the Act was to extend federal control in this field throughout the farthest reaches of the channels of interstate com *433 merce. There is no indication (apart from the exemptions contained in § 13) that once the goods entered the channels of interstate commerce, Congress stopped short of control over the entire movement of them until their interstate journey was ended. No ritual of placing goods in a warehouse can be allowed to defeat that purpose. The entry of the goods into the warehouse interrupts but does not necessarily terminate their interstate journey. A temporary pause in their transit does not mean that they are no longer ‘in commerce’ within the meaning of the act.”
But it is also true that, after agreeing with the administrator as to certain of the categories dealt with in that case, that the goods received “in commerce” at the warehouse remained “in commerce” and their interstate journey ended only when delivered to retail customers, the court went on to say:
“As to the balance, we do not think the Administrator has sustained the burden which is on a petitioner of establishing error in a judgment which we are asked to set aside. We do not mean to imply that a wholesaler’s course of business based on anticipation of needs of specific customers, rather than on prior orders or contracts, might not at times be sufficient to establish that practical continuity in transit necessary to keep a movement of goods ‘in commerce’ within the meaning of the Act. It was said in Swift & Co. v. United States, 196 U.S. 375, 398 , 25 S.Ct. 276, 280 , 49 L.Ed. 518 , that ‘commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business.’ While that observation was made apropos of the constitutional scope of the commerce power, it is equally apt as a starting point for inquiry whether a particular business is ‘in commerce’ within the meaning of this Act. We do not believe, however, that on this phase of the case such a course of business is revealed by this record. The evidence said to support it is of a wholly general character and lacks that particularity necessary to show that the goods in question were different from goods acquired and held by a local merchant for local disposition.
“In this connection we cannot be unmindful that Congress in enacting this statute plainly indicated its purpose to leave local business to the protection of the states. S.Rep. No. 884, 75th Cong., 1st Sess., p. 5; 83 Cong.Rec., 75th Cong., 3d Sess., Pt. 8, p. 9169. Moreover as we stated in Kirschbaum Co. v. Walling, supra, 316 U.S. [517, pages] 522-523, 62 S.Ct. [1116], 1119, 1120, 86 L.Ed. 1638 , Congress did not exercise in this Act the full scope of the commerce power.”
Applying these principles to this case, the facts of which are agreed, or testified, to without dispute, as set out below, 3 *434 it seems perfectly clear to me that it is to completely misapprehend either the effect of the undisputed facts or of the meaning and effect of the opinion in the Jacksonville case or of both to hold, as the majority does, that because the appel *435 lant’s employees involved in this case, in the course of their purely intrastate solicitation, sale and delivery of beer, pick up some of the empties for return to the warehouse and because the warehouse, after assorting and assembling enough of them to make a carload, ships them in interstate commerce, these employees are engaged in commerce,
in the first place, this holding, that the picking up of a small part of the empties for return to the warehouse brings these men, whose activities are essentially intrastate, into interstate *436 commerce, makes the tail (and a very little tail at that attached to a very large dog) wag the dog.
But, in the second place, and far more important, it is a distortion of all the decisions, from Coe v. Town of Errol, 116 U. S. 517 , 6 S.Ct. 475 , 29 L.Ed. 715 , down, to say, under this evidence, that, with the picking up of the empty bottles which, while still loaded, had become a part of the mass of property in the state, and their delivery to the warehouse, their movement in interstate commerce has begun.
If it had already begun, so that the cans were already in the stream of commerce, I should, of course, agree that the temporary unloading and depositing of the cans at the warehouse did not divert them from that stream. It seems clear to me, though, that it is a great abuse of the metaphor to call the dry run evidenced here in the completely intrastate delivery of the mass of full bottles, returnable and non-returnable, to the retail trade, and the as completely intrastate sorting, selecting, picking up, and returning to the warehouse, a part of the stream of, indeed even a trickle in, interstate commerce.
As correctly pointed out in appellant’s brief, the question of when the interstate journey commences, while of a similar nature, is not the precise question and does not present precisely the same problem in determining it, which was presented in the Jacksonville case, whether an interstate journey, after it had once commenced, was merely temporarily interrupted or had ended. In Coe v. Town of Errol, supra [ 116 U.S. 517 , 6 S.Ct. 477 ], the court, stated:
“This question does not present the predicament of goods in course of transportation through a state, though detained for a time within the state by low water or other causes of delay, as was the case of the logs cut in the state of Maine, the tax on which was evaded by the supreme court of - New Hampshire. Such goods are already in the course of commercial transportation, and are clearly under the protection of the constitution.”
In all the cases decided since which deal with the question when does the interstate journey commence, the courts have held without wavering that the interstate journey of goods does not commence until they have started upon such transportation in a continuous route or journey to another state or have been committed to a common carrier for transportation to another state. The transportation of goods to a depot or other place from which the journey to another state is to begin is not part of the journey, but is only preliminary and is performed for the purpose of putting the property in a state of preparation and readiness for transportation. The intention to ship the goods outside the state and partial preparation to do so are of no consequence. In Coe v. Town of Errol, supra, the court said:
“Although intended for exportation, they may never be exported, • — the owner has a perfect right to change his mind, — and until actually put in motion for some place outside of the state, or committed to the custody of a carrier for transportation to such place, why may they not be regarded as still remaining a part of the general mass *of property in the state?”
In the same case the Court stated:
“The carrying of them in carts or other vehicles, or even floating them, to the depot where the journey is to commence, is no part of that journey. That is all preliminary work, performed for the purpose of putting the property in a state of preparation and readiness for transportation.”
On the principles laid down in Coe v. Town of Errol, and on the authority of the Jacksonville case and the cases it cites, which recognize and enforce those principles, I respectfully dissent.
. Mr. Maxfield testified:
“Q. What is the business of Stewart-Jordan Distributing Do., Mr. Maxfield? A. They are engaged in the business of distribution of beer and wine.
“Q. What brands of beer do you distribute? A. Pabst Blue Ribbon and Berger Beer and Ale.
“Q. Where is this beer and ale obtained? A. Pabst Blue Ribbon comes from Peoria, Illinois; Berger Beer comes from Cincinnati, Ohio.
“Q. What type containers does that beer and ale come to you in, Mr. Max-field? A. It comes to us in twenty-four, twelve ounce bottles, per case. Twelve, thirty-two ounce bottles; cans; and, in draft beer, half barrel containers.
“Q. Of the bottled beer, is some of it contained in what is called ‘non-returnable bottles’ and some in ‘returnable bottles’? A. The greater part of it is in non-returnable bottles.
“Q. But, you do receive some in returnable bottles? A. We do receive some, yes.
“Q. Of these returnable bottles received from the brewery, are you required to place a deposit on those bottles when they are shipped to you? A. We buy those bottles when they are shipped to us.
*434 “Q. You buy thorn outright? A. Yes, sir.
“The Court: You buy them and sell them back at an exchange price, when you return them? A. Yes, sir, that’s right.
“Mr. Earvin: Now we have agreed, Mr. Maxfield, that you shipped a carload of empty containers back to the brewery approximately once a week. Where do you get the containers that you ship back? A. We pick those empty containers up out among the retail trade.
“Q. Do your regular delivery trucks pick them up when they go out to make deliveries, then, to the customers? A. That’s right.
“Q. Does your company employ driver-salesmen, Mr. Maxfield? A. Yes, sir.
“Q. What duties do these driver-salesmen perform? A. Their duties are the sales and — of beer and ale from the truck route. From a truck. Over a stipulated certain route, each day of the week.
“Q. Do they also — is it also part of their duties to return, these empty containers to your warehouse, too? A. That’s right.
“Q. Is each driver assigned a specific route? A. More or less, yes, sir. Each driver is assigned a particular territory or route, to serve them.
“Q. Do they have customers on the route, on whom they are supposed to call at certain intervals? A. That’s right.
* * * * * * *
“Q. You ship around four a month. Three to four each month, out, and you get in an average of twenty-two and as high as thirty-six cars. What is the occasion of the difference in those two figures? A. The occasion for the difference in those two figures is because of the nonreturnable bottles and cans.
“Q. At the time you purchase that beer and that beer is sent to you, are you charged for the bottles at that time? A. We buy the bottles, yes.
“Q. Then, they are the property of Stewart-Jordan? A. They are our property.
“Q. Are you obliged or do you have any understanding with the factory that you will return bottles? A. Not a compulsory agreement with the factory. We have a set agreement with them that they will buy back all the empties we care to send back to them, but there is nothing compels us to send them back to them.
“The Court: You do gather them for the purpose of sending them back, however? A. Yes, sir.
* * * * * * *
“Q. What processes, if any, do the empties go through at the time they are returned to your plant, Mr. Maxfield? A. These empties are brought in by the driver-salesmen, on the trueles, and placed in the front section of the warehouse, in a separate section, where they are cheched by the office for accuracy as to the number of cases returned. Then they are cheched by otir warehouse crew for accuracy of the contents, whether they are the right hind of bottles and right hind of cases, and then they are placed on floats and sent bach to our warehouse stach, or stoch, as we call it, because we heep accurate inventory on those empties, and where they are, and they are eventually placed in the car and shipped to the factory.” (Emphasis supplied.)
“Q. Each case of bottles, then, is then individually checked after it gets off the truck, before it is placed into the stock? A. Yes, sir.
Joe Thompson testified;
“Q. What is the first thing you do when you go to work in the morning? A. The first thing is to locate the driver and find the truck.
“Q. Then what do you do? A. We load the truck.
“Q. What do you load on the truck? A. Beer.
“Q. How do you know how much beer to put on the trucks? A. Well, we have a list of how many cases he desire.
“Q. The driver tells you how many cases? A. Yes, sir.
“Q. What do you do when you get in at night? A. Well, if it is not too late, we take empties off and straighten up the truck and get it checked.
“Q. When you take the empties off, where do you put them? A. Put them against the wall.
“Q. Do you pick up empties all during the day when you are working on the route? A. Yes, sir.
“Q. When you pick them up, do you check the cases that you pick up? A. Yes, sir.
“Q. What do you check them for? A. The bottles. See if they have the right bottles in them.
“Q. What are the right bottles? A. Brown bottles.
*435 “Q. If you have something other than brown bottles, what do you do? A. Take them out and ask for brown bottles.
“Q. How do you know what cases to pick up? A. We pick up Pabst Blue Ribbon cases.
“Q. Do you ever pick up any Berger cases? A. Seldom. We handle Berger Beer, but seldom pick up Berger cases. Not since I been on the truck.
*******
“A. We have Berger Beer and we have ale and we have wine.
“Q. Now, do you get empties from all those other things? You said you got empties from Berger Beer? A. I never handled any Berger stuff. I just handled Blue Ribbon.
“Q. Do you get any empties back of that beer? A. We seldom get any empties on Berger Beer.
“Q. Do you get any empties back on wine? A. No, sir.
“Q. Is all the beer that you take out, Pabst Blue Ribbon? Do you take cans with you? A. Yes, sir.
“Q. Do you take no-return bottles with you? A. Yes, sir.
“Q. After you have been on your route and got rid of your beer, how many cases would you have on your truck, of empties? A. That’s according to the sales.
“Q. That’s right. Well, I will ask you this. Do you have any idea, generally, of empties, how many you would have? A. Twenty-five to thirty.
Walter Morrison testified:
“Q. Where do you work, Walter? A. Stewart-Jordan, Pabst Blue Ribbon.
“Q. How long have you been working there? A. I work for the company about a year now.
“Q. What job — what kind of work do you do there? A. Well, we — sometimes we unload trueles and put them up there against the wall, for the warehouse, and then we cheek them and load them on a float and send them to the back of the warehouse, until we get a stack of enough to load a car, and a car comes in and we load them in the car.
“Q. And when you move these cases of these empty bottles, you move them from the front of the warehouse to the back? A. Yes, sir.
“Q. When you move them, you say you check them? What do you do that for? A. To see they have the right bottles in them.
“Q. What are the right bottles. A. All brown bottles.
“Q. If you have all brown bottles in them, what do you do? A. Put them in different places, and when we get enough of them, we load them up.
“Q. If you don’t have all brown bottles, what do you do? A. We have to set them aside until we have enough to make them up — make the cases up. Some of them have Coca-Cola bottles, and we take them out.
*****
“Q. I see. Now, when the empties come in at night — when they come in at night with their empties, what happens when the truck comes in with the empties? Do they unload them? A. We help unload them. Help unload the truck.
“Q. Does the warehouse gang have to check the bottles and cases after they get in there? A. Yes, sir.
“Q. And you do, I believe, sort them and fill up crates, and take green ones out and put them in other boxes? A. Yes, sir.
“Q. After they have been sorted like that you stack them, is that right? A. Yes, sir.
“Q. And then you ship titem out? (Emphasis supplied) A. That’s right.” Aaron Hines testified:
“Q. What kind of work do you do? A. Warehouse man.
“Q. What do you do in the warehouse ? A. Load trucks; unload them. Cars.
“Q. Do you handle containers full of empty bottles in the warehouse ? A. Yes, sir.
“Q. What do you do to those bottles? A. Check them.
“Q. What do you check them for? A. For outlaw bottles, to see if they full, and, the kind of bottles. Certain kind of bottles.
“Q. Then, do you load them on railroad cars? A. Yes, sir, after they are checked.”