The opinion
CARTER, J.
I concur in that portion of the majority opinion holding that labor performed in the “girdling, thinning and harvesting" are not subject to the Unemployment Insurance Act (Stats. 1935, p. 1226, as amended; Deering’s Gen. Laws, 1937, Act 8780d). But I do not agree with that portion of said opinion holding the packing house labor activity of defendant to be not agricultural and therefore subject to the act.
Defendant is engaged in contracting with producers in which he agrees to purchase their products, and perform certain agricultural duties with regard to producing, harvesting and packing the produce. The majority opinion proceeds upon the theory that, under subdivision a of rule 7 adopted by the commission, packing activities are excluded from the definition of agricultural labor because traditionally, such activities are not concerned with tilling the soil or other of the farm activities, and that under subdivision b, such activities are not agricultural labor, because the employees are not employed by the owner or tenant of a farm. There is no realistic basis for the use of the owner-tenant employer test as the yardstick for measuring the scope of the definition of agricultural labor. It is conceded that if the packing was done by the farmer on the farm it would be such labor. And there can be no doubt about it. The packing of the produce is just as much an essential step in the farmer’s business as any other factor. His aim is to make a living, first by growing the produce and then preparing it for sale. That preparation inescapably includes packing. Hence it follows that packing of agricultural products is a farming pursuit. Indeed it must be so characterized in order to fall within the definition of agricultural labor where the employer is an owner or tenant. How then may it be said that the criterion is the status of the em *564 ployer—that he must be an owner or tenant of a farm ? On the one hand it would not be said that a person was employing agricultural labor if his employees were manufacturing locomotives, even though he was the owner or tenant of a farm, and the enterprise was conducted on the farm. On the other hand, if the services performed are the tilling of the soil it is agricultural labor regardless of whether the employer is an owner or tenant of a farm. That proposition is conceded by the majority opinion. I can see no other possible conclusion than that the requirement of a tenant-owner employer relationship is not a valid test for solving the problem. The basic principle must be that the vital turning point is the nature of the services performed. Are they agricultural in character as that term is used and understood throughout the nation?
In the instant case, packing as we have seen, by its very nature, is a part of the farmer’s business, otherwise we leave him with his enterprise half completed. He has produced his crops but ceases to have farmer services performed when he carries his project to its logical conclusion—to the end that he had in view when he launched it,—that is, the packing and disposal of the fruits of his toil. Moreover, there are additional factors in the instant ease. Defendant probably is not a tenant of a farm nor are he and the owner of the farm strictly speaking joint adventurers. Yet they have some of the aspects of the latter legal conception. The enterprise as a whole consists of producing and disposing of farm products. The owner of the land carries it to a certain stage and defendant completes the process. That process is continuous and unbroken from the seed to the consumer. Merely because the land owner does not perform the final acts, does not make the various phases any the less a part of the course of the activity. In a sense the defendant is performing some of the attendant tasks for the land owner and the latter carries some of the burdens of the former, all to the achievement of a single goal and all an integral and inseparable part of the venture.
The proposition that the scope of the words “agricultural labor’’ does not turn on the test of an owner-tenant employer relationship is brought out in Stuart v. Kleck, 129 F.2d 400 , 402: “Accordingly, the exemption attaches to the ‘services performed’, which refers to the type of work that is being done, and is not dependent on the form of the contract or whether the employee is employed by the owner or tenant of *565 the farm or an independent contractor. . . . The important question, then, is: What is the nature of the services furnished and were these performed upon a farm?” [Emphasis added.]
A case closely in point is Batt v. Unemployment Compensation Division, 63 Idaho 572 [ 123 P.2d 1004, 1005 ], where it is said: “The only controversy before ns is as to whether the appellant, Batt, is liable for contributions under the Unemployment Compensation Laws, . . . upon wages for (a) labor of individuals performed upon farm products purchased by him from farmers; and, (b) for the same kind of labor performed on farm products handled on so-called ‘consignment’.
“The opinion of the Chief Justice seems to recognize a difference between the work done on (a) purchased farm products and (b) consigned farm products. I am unable to distinguish any material or legal difference between the two.
“The stipulation of facts covering this phase of the question is as follows:
“ ‘That aside from the produce raised by the applicant the balance for such produce which are processed as hereinafter set forth are secured in the following ways:
“ ‘The applicant purchases from the farmer grower the portion of his crop which is marketable when sorted and graded. To enable applicant to determine the part purchased and to prepare the same for market the farmer delivers such produce at the applicant’s shed or warehouse, contained in half bags as taken by the farmer directly from the field as harvested.
“ ‘The applicant also handles a comparatively small part of potatoes on consignment, in which case the farmer delivers the potatoes from the field as harvested, and after the applicant has processed the same as hereinafter stated and sold the same there is deducted from the sale price the expenss, including a charge for processing and a brokerage charge, and the balance is paid to the farmer. . . .’
“It appears, from the stipulation of facts, and is admitted, that this so-called processing merely consists of sorting, washing and grading these several farm products and packing or crating them for shipment and market. It is further stipulated and found as a fact, that the same laborers do the work on. both the purchased and the consigned products; and that the work is identical on both.
“It is clear that the appellant does, for hire, just such work *566 as the farmer would have to do himself or hire someone else to do, on the farm or elsewhere, in preparation of his products for market. For this labor, the appellant received and deducted from the sale price ‘the expenses including a charge for processing and a brokerage charge’, and paid the balance to the farmer. . ^ .
“I fail to see wherein the work done upon consigned products is any less ‘agricultural labor’ than that done upon the same kind of products purchased by appellant, or grown by him on his own farm. It was all agricultural labor.” [Emphasis added.]
In Cache Valley T. Growers Assn. v. Industrial Com., 106 Utah 1 [ 144 P.2d 537 ), the employer was not a farmer but bought turkeys from farmers and processed them for market. The labor was held to be agricultural. (See, also, In re Batt, —Idaho— [ 157 P.2d 547 ].)
The decision of the majority in this case is out of harmony with the principles stated in the companion case of The Irvine Company v. California Employment Commission, post, p. 570 [ 165 P.2d 908 ], this day decided. First, it is there stated in regard to the scope of the words here involved: “ ‘agricultural labor’—a term ‘intended ... to have a meaning wide enough and broad enough to cover and embrace agricultural labor of any and every hind,. . . that in modern usage this is a wide and comprehensive term and that statutes using it without qualification, must be given an equally comprehensive meaning. ’ ” [Emphasis added.] If we give that broad meaning to the term, the services here performed undoubtedly bear the characteristics of agricultural pursuits. Second, in the Irvine ease the point is stressed that the courts should not “pick out some particular phase of the operation as determinative of whether it was agricultural, industrial or commercial.” They should view the enterprise as a whole. So analyzed in the instant case, it is apparent that the labor supplied by the defendant under his contracts with the landowners was a part of the larger enterprise in which both participated in producing crops and conditioning them for sale to the consumers. Third, the Irvine case points to the 1939 amendment to the federal Social Security Act ( 26 U.S.C.A. § 1607 ) as of persuasive significance in determining the scope of agricultural labor and the necessity for harmony between the state and federal acts. Applying that principle to the instant case we search in vain for any requirement in the 1939 *567 congressional amendment for any restriction in the operation of the exemption on packing house employees to cases where the employer is a land-owner or tenant. It reads: “The term ‘agricultural labor’ includes all service performed—
“(1) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife.
“ (2) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm.
“(3) In connection with the production or harvesting of maple sirup or maple sugar or any commodity defined as an agricultural commodity in section 1141 j (g) of Title 12, as amended, or in connection with the raising or harvesting of mushrooms, or in connection with the hatching of poultry, or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways used exclusively for supplying and storing water for farming purposes.
“(4) In handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, any agricultural or horticultural commodity; but only if such service is performed as an incident to ordinary farming operations or, in the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market. The provisions of this paragraph shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption.” [Emphasis added.]
In my dissenting opinion in California Employment Com. v. Butte County Rice Growers Assn., 25 Cal.2d 624, 640 [ 154 P.2d 892 ], I discussed the rationale of the federal and state definitions of agricultural labor and the discussion there is pertinent here.
*568 In my opinion the trial court was correct in holding that none of the services here performed were subject to the Unemployment Insurance Act, and the judgment should therefore be affirmed.
Schauer, J., concurred.
Appellant’s petition for a rehearing was denied February 25, 1946. Carter, J., and Schauer, J., voted for a rehearing.