Petition for Writ of Certiorari — Addison v. Holly Hill Fruit Products, Inc. (No. 217)

OCTOBER TERM, 1943

No. 217:

GAR CAMPBELL, SALLIE BAKER anp ————

BLACK,

° . vs.

HOLLY SILL FRUIT PRODUCTS, INC.

0 PORE LARS TOMER IRE 4 sil gs 2

PETITION FOR A WRIT OF. CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FIFTH CIRCUIT AND BRIEF. IN SUP-

PORT THEREOF.

ill Sell

s

Grorce PaLMER GARRETT,

Counsel -for Petitioners.

SUPREME COURT OF THE: UNITED “STATES ~~

WILMA E. ADDISON, ERNESTINE ©. LYLES, ED-_

Petitioners,

ath

ee

INDEX.

Sussect Inpex.

wns Page -;

"Petition for a writ of certiorari —- 9 : 1.

Nature of the ease and rulings. below. Sait |

Statutory provisions: sustaining jurisdiction 3

Question - presented | 7

Reasons relied upon for allowance of writ

Brief in support of petition * ~~ &

Grounds on which the jurisdiction of.this Court

is invoked _. * eye ae»

Statement of the case. Rie Aaa she ee

- Specification of errors assigned a

Argument ...... 1W..

Question : Was the Court of Appeals in

error in holding ineffective, i in the cireum-

_ stances set forth “in the findings of. the

District Judge, the administrator’s defini- .

tions of “Area of Production’’? a;

- Conclusion Le i CRN oe wr aI A ae 21

ae Tage OF Cannes Crrep. ——~

Abram v. San Joaquin Cotton Oil Co., 46 Fed. ope: , =

: 969, 49 Fed. Supp. 393 . 14,16 —

Bowie v. Gonzalez, 117 F. (2d) 11 16

Boyer v. Miller Hatcheries, 42 Fed. Supp. 3t . 16 *

Federal Trade Comm.v. Raladam Co. ., 283 U.S. 648, 2

- T5L, Ed. 1324... .. 14

' Fleming v. Farmers Pecial Co., 128 F. (2d) 404 - . 6,8

' Fleming v. Hawkeye Pearl Buttow Co. » 113 F. (2d) ©

_ EP ee ai OCS re re oa

Gray v: Powell, 314 U. 8.402; 86 L. E Ed. 301 | ee

; Holly Hill Fruit Products, Inc., v. Addison, —¥. (2d) .

> RPS TAC ata spe ag 11

: Lofther v. First Nat. Bank of C hicnpe, 48 Fed. Supp.

692 : ; ; 16

Martin v. Mobi? 2 Wheat, 31, 6L. mn. Oe.

" 7358

ii : _- INDEX.

Maryland Casualty Co. v. United vegas 251 U.S.

Me a IS hr i ke eae 1 ee

Opp Cotton Mills-v.Administrator of the Wage and

Hour Division of the Department of Labor, 132

‘U.S. 126, 85 L. Ed. 624 ..... 15

_ Overstreet v. North Shore Corporation, - — U. Ss. —,

87 L. Ed. 423-...... LL pa Oa UY OA a mb

Redlands Foothill Groves y. Jacobs, 30 Fed. Supp.

BS oN aa Gay pe ere aan ia a es

Silgaro v. Port Compress, Co., 45 Fed. Supp. 88. i

_ Tigner v. Texas, 310 U. 8. 141, 84 L. Ed. 1124. Peas

/ UL S.'v. American Trucking Association, Tne. ¥ 310

ae | Re Pe NS 21

U.S. v. Bush, 310 U. S. 371, 84 L. Ed. 1259. cee ‘17

U.S. v. Darby, 312 U. S. 100, 85 L. Ed. 609. . 15

‘U.S. v. Dickson, 15 Pet. 141, 10 L. Ed. 689... ® w...

ULS.V. Shreveport Grain & El. Co., 287 U. ‘S. 77, 7 a6

ov J ee a as | 17

StTaTuTEs CITED.

4‘ongressional Reeord of—. -

_ July 27, 1937, pages 2895, 9904, 9906-7, 9910 14

- July 30, 1937, pages 10179-81,. 10191 14

July 31, 1937, pages 10246-7, 10267, 10276 ee

December 17, 1937, page 9319 neat 14

May, 23, 1938, page 9626... ..... ii

- May 24 and 25; 1938, pages 9741, 9746 a ahs a

Fair Labor- Standards Act (29 U.S. C. A., Sections '

- .201, et seq., 52 U.S. Statutes 1060, et + seq): AE

Section 2 Leh e Batis pve

Section 3 oe eee 18

‘Section 13 (a) 10. ; 2,5 7,8, 14, 18, 21

Federal Register, Volume 3, page 2536 __. 14

‘udicial Code, Section 240, as amended by the ‘Act .

of February 18, 1925, 43 Statutes 938, 28 1, S. CAs

347

- Regulation #5362, paragraph E of the Adminis-

- trator of the Wage and Hour Division of the De- __

. ° partment of Labor a

Senate’Report #884, 75th Congress,. First Session dd

~!

— SUPREME COURT OF THE UNITED STATES ©

OCTOBER TERM, 1%3_

WILMA E. ADDISON, ERNESTINE C. LYLES, ED-

GAR CAMPBELL, SALLIE BAKER AND LUTHER

BLACK, vs. Soe Petitioners,

HOLLY HILL FRUIT PRODUC ‘TS, INC,

7 Respondent.

PETITION FOR WRIT OF CERTIORARI TO CIRCUIT

COURT OF APPEALS. / :

To the Honorable Justices of the Suprem me Court of the

United States:

Wilma kK. Addison, Ernestine C. Lyles, Edgar Campbell,

Sallie Baker, and-Luther Black, Petitioners, respectfully

petition the Court for a writ of certiorari to rev iew a deci-

sion of the United States Circuit Court of Appeals for the

Fifth Cireuit, in a certain cause therein lately pending

between Holly Hill Fruit Products, Ine., Appellant, and .

_ the said Petitioners, Appellees, wherein a judgment was

' rendered by said Cireuit Court of ——* on June 24, 1943,

lp ;

' \. County, which had a population of over three thousand per-

reversing the judgment of the District Court, ‘and in sup-

port. of their said petition, ‘petitioners. (plaintiffs in the.

District — respectfully show :

ewe LN

/

‘The matter in controversy in this cause turns upon the

minimum wage and maximum hour’ requirements of ‘ the

Fair Labor Standards Act (29 U. S. Code Annotated, See-

tidns 201 et seqg., 52 U: S..Statutes 1060 et seq.), and more

particularly Section 13 (a) 10, whereby there is éxcepted- ’

_ from the coverage ‘of the Act ‘‘any individual employed

within the area of production (as defined by thé Adminis. .

trator), engaged in handling, packing, storing, ginning,

compressing, pasteurizing, dryi ing, preparing in their raw

or natural state, or canning of agricultural or horticultural.

“commodities for ‘market 2 >>

The District Court found that: ;

The defendant was engaged in canhing fruit during the |

period from November 14, }938, to May 26, 1939, and from

November 16, 1939, to March 30, 1940 (R. 187), and that

throughout said two seasonal periods of operation, defend-—

_ant employed at its establishment in the town of Davenport,

Polk County, Florida, in its citrus fruit canning operations

and ,processes, more than two hundred ‘‘piece workers*’’

( R.-187) and forty-seven ‘‘hour hands,’’ (R. 213); that said

town is a town of six hundred and fifty population accord- .;

ing to the 15th United States Census, 1930, situated within

four miles of an incorporated town, Haines City, in said

v4

‘sons according to both the 15th Census of 1930, and the

16th Census of 1940 (R. 187)...

During the first of these two periods, by visi

promulgated October 20, 1938, the Administrator of the

Wage and Hour Division of the Department of Labor de-

fined an individual as employed in the ‘‘area of production”’

if engagéd in such work on a farm, and on.agricultéral or _

horticultural commodities’ prdduced exclusively on such

farm, or if such commodities are obtained by the establish- |

ment where he is employed from farms in the immediate *

locality, and the number of employees in such establishment .

does not:exceed seven (R. 187 and 188): This regulation _

remained in effect through April, 1939, when, following a

séries of administrative hearings, the Administrator added

a paragraph to his said definition as follows: ‘‘(e) with:

respect to perishable or seasonable fresh fruits arfd vege-

tables, if he is engaged in handling, packing, storing, .dry-

ing, preparing in their raw or natural state, or canning such > ,

products for market i in an establishment which is located

in the open country or in a rural community and. which

obtains all of its products from farms in its immediate lo-

cality. As used in this subsection (e) ‘open country’ or

‘rural community” shall not include any city oF town of |

2,500 or greater population. according to the 15th United

States Census, 1930, and ‘immediate locality’ shall not in-

ai “dude any distance of more than 10 miles’’ (R. 187-188).

On June 15, 1939, effective June 17, 1939, the Adminis-

trator ‘again amended his definition aforesaid to provide.

that the individual shall be regarded as employed in the

“area: of production”’ (a) if he performs those operations —

on materials-all of which come from farms in the genetal

vicinity of the establishment where he is employed arid the

number of employees engaged in those operations in that

establishment does not exceed’ seven, or * ° * (d).if he

’ performs ‘those operations on materials all of which come

_from farms in the immediate locality of the establishment

where he is employed and the establishment is located .in

the open country or in a rural community. As used in this

sub-section (d) * “immediate locality’’ shall not include any

distance of more than ten miles and “open country” or

2p es |

“o ,

&

4 ‘

‘rural community *’ shall not include any city or town of

2,500 or greater population according to the 15th United

States Census, 1940’’ (R. 188-189)..

The District Court further found :°

‘“‘VII. In ‘and throughovt the said two seasonal periods

of operation, the establishment of the defendant did not

obtain all of its agricultura! and horticultural commodities ;

or materials from farms in the ‘immediate locality’ or’

‘general vicinity’ ofthe said establishment as defined

by the Administrator. An appreciable portion thereof

came from a distance beyond the range’ of usual farin:

travel. The géweral vicinity of defendant’s. establishment

was not sparsely settled, there being several towns and

communities within a radius of Jess than ten miles. Thus,

‘considerable fruit was canned and’ processed in the de-

fendant’s eStablishment duritig said season which came

from: the neighborhood of Haines City, which is within’

four miles and has several commercial canning plants

operating in conipetition to defendant’s establishment.

Also considerable. fruit. was cated and. processed in the

defendant’s establishment during the seasons in eontro-

versy, coming from the neighborhood of communities as

far away from Davenport as Lake Wales—20 miles—Bab-

son Park, several miles more than 20, Dundee 14 miles,

Loughman 7 or 8 miles. Much of this fruit was hauled

past other canning factories. to reach the defendant’s es--—

tablishment’’ (R. 192). =e : " ;

“VITL. In and during said two seasonal periods ofsoper-

“ation, the: establishment of the .defendant is not located

in the ‘open country’ or a ‘rural comniunity,’ as de-

fined by the Administrator in his said several definitions,

because there was within the range of usual farm travel, -

at a. point not more than four miles away, a town of more

Way ee

than 2500 iii aceording to the applicable United

States ‘Census’’ (R. 192-3). ‘

“IX. There was practically no téstimony showing the

percentage of the fruit processed by the defendant estab-

» jishment which. was procured from groves. located .at a

distance of more than’ ten miles by the shortest road haul

from the establishment; almost all of the. testimony on

the distance of the point of origin of the commodities

processed by said establishment during said two sefsonal

periods had reference to a ten mile radius, ‘asthe’ crow

flies’ ’?> “(R. 193).

“X, The evidence discloses that the defendant is not

an establishment operated by the farmers raising the com

modities processed, and that the procéssing is not done

by the farmers through the use of their own farm labor ,

on their own farms. On: the contrary, although. its mem-

bership consisted of fruit growers owning groves in two

certain townships in Polk County, Florida, the def ‘endant

accepted a considerable portion of its commodities from

groves of non-inembers ‘and, in fact, processed many

thousands of boxes of fruit deliv ered to the eanning plant

by a speculative. nen-fiember, the Grapefruit Distributors,

Inc., a_corporation. The employees of the de fendant were

‘ not hired by the.members, nor were they farm labor. On:

the contrary, they. were hired aby the defendant corpora-

tion and did no farm or agricultural labor. They were sim-

ply industrial employ ees, The defendant corporation was

not itself engaged in agricultural or- horticultural labor

or work. It was a comitercial industrial concern entitled

to earn a reasonable profit from canning ffuit”’. (R. 193).

The District Court “eoheluded that the total exemption

intended by Section 13 (a) (W) (29 U.S. @. A. See. 2138

(a) (10), of|the Fair Labor Standards Act of 1938) was in-

applicable to the defendant (R. 194-197)... -

, .

& , : t

The Court of Appeals found it to be admitted that the

wage and hour requirethents of the Act were not observed *

(R. 225) but adopted the holding in the prior case of

Fleming v. Farmers Peanut-Co. (CCAS, 128 Fed. (2nd)

404), decided by the same Court of Appeals, that the limi-

tation in the Administrator’s definitions as to the number

of employees was void (R. 226). The Court: of Appeals

held that: As to the period from Noveinber 14, 1938 to

April 19, 1939, the evidence showed that 97.24% of the

commodities came from farms. located within 10 miles,

96/100 of 1%. could not be traced, and the balance came

from farms less than 25 miles distant, and that “‘it would

“be most unreasonable to say that the nexfligible quantity

obtained from a slightly greafer distance should affect -

the statutory concept of area of production’’ (R. 226). As-

_ to the period from April 30, 1939, to May 26, 1939, the

Court of Appeals held that the evidence showed that ‘*more

97% of the commodities processed came from farms ~

“located within 10 miles of-the.plant. * * * The purchase

of so great a portion within a ten mile radius of the plant,

gud the acquisition of the negligible balance from farms’

within 25 miles were sufficient to prove that the products

were obtained within the immediate locality’? (R. 226-7).

And, as to the period from November 16, 1939, to March

30, 1940, the Court of Appeals held that the evidence showed

that ‘‘during this period 91.39% of the frhit processed -

- was purchased from farms within ten miles of ‘the plant,

and an additional 4% came from farms within twenty,

five miles; and none yas known. to have come from, any

vreater .distance’’ (R. 227). Thereupon, the Court o

Appeals held that: ‘*In ordinary usuge the words ‘gene ‘ral

- Vicinity’ indicate a larger area than is meant by ‘immedi-

-ate locality’ and a distance of 25 miles in this lay of

highly developed travel facilities is not beyond the ranze

of usual farm trav el’ (R. 227). © And, finally, **that these

/

j

7

appellees were employed within the area of production +

during the entire period involved here, and that the mini-—

mum wage and maximam hour provisions of the Act did —

not apply to -them’’ (R. 228).

1. Jurisdiction is invoked under Section 240 of ‘the Ju-

diciary Code, as amended by the Act of February 13, 1925,

43 Statutes 938, 28 U. 8. C. A. Section 347.

_ 2 The statute of the United States involved: is the Fair.

Labor Standards Act of 1938 (29.U. S. C. A. Sections 201

et seq.; 52 U. S. Statutes 1060 et seq.) particularly ion

13 (a) (10) thereof, hereinbefore ‘summarized in the Krst

-paragraph of this petition. =

3. The judgment to be reviewed is dated June 24, ‘A. D..

1943 ,

<3 CG. ,

The qtestion. a ey is whether the Court of Appeals —

correctly held ineffective, in the cifeumstances set forth in

the. findings of the District: Judge, the Administrator’ s*

said three ‘definitions #f-**area of production.”’

, D.

The said ruling and décision of the Court of Appeals

is of such far*réaching extent as to call for a decision of

this Court upon fhe question of federal law here involved... °

If the said. rnling and decision of the Court of Appeals is

‘suffered to stand and become a precedent, it will operate

to the prejudice, not only of the petitioners, but of many

other persons employed in the sonia a fruits and vege-

tables. ; :

Moreover, until the conflict and confusion is resolved in

the seventeeg decisions of the lower courts (all district

;

court decisions except the decisions ofthe Circuit Court

of Appeals of the Fifth Circuit in the case of Fleming v.

Farmers Peanut Company 128 Fed.. (2d) 404, and in this

present case, construing Section 13 (a) (10) of the Act

and the Administrator’s definitions of ‘‘area of produc-

tion,’’) the- Administrator cannot know the scope of -his ~

powey, nor can the employers and employees intended to

be included in, or excepted from, the Act know: their re-

spective duties and rights under the Act.

The decision of the Court of Appeals, without over-

ruling the findings~of fact made by the District Judge,

determines the case contrary to these findings.

The decision pf the Court of Appeals renders ineffective

the definition of ‘‘area of production’? promulgated by the

Administrator although the Act of Congress expressly

committed to him the’ power and duty to define the phrase.

It disregards the spirit of the Act by exempting a whole in-

dustry from the coverage of the Act. It disregards the .

-rule that the Administrator’s regulation is presumed to

be valid and based upon sufficient factual reasons. It dis-

regards the intent of Congress as disclosed by the legis- >

lative history of the Aet. It disregards the rule that ex-

emptions from the scope of an Act of this type are to be

strictly construed and exempts the defendant although

the’ Court of Appeals concedes that the defendant is not.

literally within the exemption. It invalidates the Admin-

-istrator’s definitions.which are essential to the claim of

_ exemption and yet disregards the corollary that, if the defi-.

nitions are invalid, there can be no exemption.

Prayer for Writ. .

Wuekerore, petitioners pray for a writ of certiorari to

_be issued under the seal of this Court, directed to the United

States Cirenit Court of Appeals for the Fifth Circuit,

sitting at New Orleans, Louisiana, commanding that C ourt

‘to certify and send to this Court upon a day to be desig-

nated, a full and complete transcript of the record and all

proceedings in the case entitled Holly Hill Fruit Products,

‘Ine. Appellant, v. Wilma E. Addison, et al., Appellees,

‘ being Case No. 10643, in said Circuit Court of Appeals, to

the end that this cause may be reviewed and determined by

~ this.Court, and that the decree of the Circuit Court of

'Appeals may: be reversed, and the petitioners may be-

granted such other and further rejjef as may seem proper.

GrorcE PaLMER GaRRETT,

419 Exchange Building,

Orlando, Florida, '

Counsel for Petitioners.

SUPREME COURT’ OF THE UNITED STATES

OCTOBER TERM, 1943 .

No. 217 |

WILMA E. ADDISON, ERNESTINE (. LYLES, EDGAR

CAMPBELL, SALLIE - BAKER, axnpn LUTHER

BLACK,

Petitioners,

US.

HOLLY HILL FRUIT PRODUC TS, INC., _

- Respondent.

PETITIONERS’ BRIEF IN SUPPORT OF THEIR

PETITION FOR WRIT OF CERTIORARI.

I.

@

The Opinion of the Court Below. |

The opinion of the Circuit Court of Appeals for the Fifth

Cireuit was rendered. on June 24, 1943, and is, reported as

Holly Hill Fruit Products, lic. v. Wilma E, Addison, et al.,, .

Case No. 10643 (C.C.-A. 5th) — F. (2d) —, Advance Sheet ,

No. "(not yet printed), oe by Holmes, Circuit .

Judge. »

12 .

I.

Grounds.on Which the Suriadiction of This Court Is

; Invoked.

The decision of the Court of Apgeals involves a nov vel and

important problem and principle of federal law with regard

to which the decisions of the lower courts are in conflict and

confusion. This problem is the determination of the extent ~

to which the Administrator of the Wage & Hour Division of ~

the. Department of Labor, acting under direct authority of

Congress to define the phrase, ‘‘ Area of Production’, limit-

ing an exemptton from the coverage of the Act can, by his

‘definition, reasonably depart f rom the dictionary meaning

of the phrase in order to carry out the intent of Congress, as

he determines. that intent from the legislative history of the.

enactment and from hearings he has himself held. to ascer-

tain the proper practical scope of the phrase and the exemp-

~ tion. This case.constitutes an important precedent for all’

District and Circuit Courts of Appeal in dealing with the

_extent and. scope of the exemption granted by Section —

13 (a) (10) of the Fair Labor Standards Act.: The seven-

teen decisions by various lower federal courts, including

- two by the Circuit-Court of Appeals for the 5th Cireuit, on

the validity and effect of the Administrator’s definition of .

“area of -production’’ are at this moment in utter conflict

‘and confusion as to the effectiveness and scope of this

exemption.

Mm. ene

Statement of the Case.

~ The petition to which this brief is attached sufficiently

states all of the facts that are material to a consideration

of the. questions presented.

; ‘ Hl =

I V ° a

———— . ®

Specification of Errors ‘hetgeill.

There was no error in the District Court. We specify as

error the decision of the Court of Appeals in reversing

the District Court.

| ARGUMENT.

Question: Was the Court of Appeals in error in holding

ineffective, in the circumstances set forth in the findings of

the District Judge, the Administrator’ s definitions of ‘‘area

of production’’?

‘Petitioners conceive. that the said ruling and decision of

the Court of Appeals is erroneous, in this:

Said ruling and decision overloeks;-or fails to give ‘effect

to, the essential purpose of the enaetment as manifested in

Section 2 of the Acty (b) ‘*It is hereby declared to be the

‘policy of this Act through the exercise by Congress of its

power to regulate commerce among. the séveral states, to *

correct and as rapidly as practicable to eliniinate,”’ ete., the

existence, in industries engaged: in commerce or in the

production of goods for commerce, of labor conditions detri?

mental to the niaintenance of the minimum standard of liv.

ing necessary for he alth, efficienc ‘vy pnd gene ‘ral well-bei ‘ing .

of workers.

The whole Act is is be read together with the dee Jared

purpose in mind. ; :

The thought back of the Administrator's definitions is

adinirably set forth in the preamble to the Administrator's

first definition of the phrase-‘‘area of production’’, promul-

gated by him on October 20, 1938, undér the authority given —

~ : e. °

14. _

him by Section 13 (a). (10) of the me of Ce ongress., This

_preamble reads as follows:

“nm appraring x that the intent of Congress i in making

the special provisions relating to the ‘area of produc-

tion’ was to prevent undue disturbance .to agriculture

and to exempt small businesses clearly related to agri-. .

culture to employ.oceasional workers in addition to

' members of employer’s family without regard to the

Wage and Hour Standards of ‘the Act, and. |

‘*It appearing that the exemption of only ae busi-

nesses which employ a small: number of workers would -”

not result in material inequalities between firms doing ,

the same type of business; and

“Tt appearing that such small businesses are pre-

dominantly located in the ‘open country’ or ‘rural com-

munities’, receive most of their raw products from

neighboring farms, and frequently employ workers who

spend part of their time in actual operations; and

‘‘It appearing that the exemption herein granted to

such small businesses would not defeat the declared

purpose | of the Act, theréfore, in view of the ‘fore.

going. o © ©» \

Vol. 3, F ede ral Register, Page » 2536.

The basis for this preatuble prefixed by the Administrator

to his original definition of the phrase ‘‘area of production’

is clearly given in the debates in Congress on the Act, the

joint committee hearings, and the committee reports.

‘See, for example, Senate Report #884, 75th Congress,

first session; C. R.. July 27, 193%, pages 9895, 9904, 9906-7,

9910; C. R. July 30, 1937, pages 10179-81, 10191; (@®% R. July

31, 1937, pages 10246-7 7, 10267, 10276; C. R. December 17,

1937, page 2319: C. R. May 23, 1938, page 9626; C. R. May |

24 and 25, 1938, pages 9741, 9746. :

The debates may be considered. Federal Trade Comn. v..

Raladam Co., 283 U. S. 648, 650, 75 L. Ed. 1324;. Abram v.

San Joaquin Cotton Oil Co., 49 Fed. Supp. 393 at 401. se

e,

ed

15 ’

Moreover, the said Congressional debates and reports

disclose the esserttial intent of Congress in enacting the Act

to include within its provisions all industrial workers and

exclude agricultural workers.

- That the Administrator's problem was deliberately cast

upon him by Congress. and he was left with full authority

to pnomulgate’ a definition, reasonably conceived to carry

out the intent of Cofigress even though it.departed from

the dictionary meaning of the phrase ‘‘area of production’”’,

is clear from the colloquy between Senator Black and Sena-

tor Schellenbach in. the course 6f the debate on the bill, as

follows :

Senator Black whet Senator Schellenbach what would be —

the definition of ‘‘area’’, would it not be possible to define it

more clearly to get the effect. Senator Schelenbach an-

swered, ‘‘I gave that considerable thought. Ido not believe

it is possible, and that i is something that the Board (now the*

Administrator) which has ‘been accused of receiving too

much power, will have ‘to decide. It would have to provide

a definition of ‘immediate production area’ *’

sional Record, July 30, 1937, p. 10181). . |

in resolving his definitions, the Administrator could well

assume that the Art was constitutional. The Supreme *

(' ourt has so held in the cases of: ce

(Congres-

“Opp Cotton Muls vy. Administrator of the v age and

‘Hour Division of the De ‘partment of Labor, 312 U.S.

126, 85 L. Ed. 624, and

United States v. Darby,3 312 U.S. 100, &5 L. Ed. 609,

Likewise, he could well assume that the intent of the Act

was to cover all industrial employees engaged in commerce.

Overstreet v. North Shore Corporation, — <V.&

87 L. Ed. 423

and to except only those establishments coming strictly

and literally within the exemptions of the Act.

?

.

ne t ed

He cauld fairly assume that the Act being a ene one

with a humanitarian end in view is entitled to a liberal con-

struction. Fleming v. Hawkeye Pearl Button Co. (C.C. A.

8), 113 Fed. 2nd 52; Bowie v.. Gonzalez (C. C. A. 1st), 7

Fed. 2nd 11; Lofther v. 1st Nat. Bank of C mcage, 48 Fed.

Supp. 692.

He could fairly assume that exemptions therefrom should

be construed strictly. Fleming v. Hawkeye Pearl Biiton

Co. supra; Boyer v. Miller Hatcheries, 42 Fed. Supp. 137;

Abram v. San Joaquin Cotton Oil Co:, 46 Fed. Supp, 969.

A reading of the debates in Congress will demonstrate

that the Administrator in defining the phrase properly exer-

cised his judgment and discretion to advance the purpose -

in: the mind of Coa&gress when the Act was enacted.. —__

A reading of the record of the Administrative hearings

by his representative, Merle D. Vincent, to ascertain the

factual basis for such definitions, and a reading of the find-

ings of the said assistant show that the Administrator had

a sufficient basis for using his Congressionally granted

power to define the phrase ‘‘area of production’’ as he did.

The Administrator's definition as to number of employ ees

is upheld in the Texas case of Silgaro v. Pyt Compress'Co.,

45 Fed. Supp. 88.

The distinction between the Administrator’s definitions

and that. of the Court of Appeals rests in the fact that the

Court of Appeals has stuck to the dictionary meaning of the

_phrase and thereby defeated the intent of Congress, where-

as the Administrater has given effect to the intent of Con- .

ress as he determined it to be. \" ate

The Supreme Court has long recognized that while Con-

-wress may not delegate legislative-power to administrative

- agencies, Congress may declare its will, and, after fixing

a primary standard, devolve upon administrative officers

the power to fill the details by prescribing administrative

‘rules and regulations allowing reasonable variations, tol-

17 ; -, ?

‘erances and exemptions which, because of their variety and

need for detailed statement, it-was impracticable for Con-

gress to prescribe. United States v. Shreveport, Grain &

El. Co., (1932), 287 U.§. 77, 77 L. Ed. 177. A regulation

by a department of government addressed to, and reason-

ably adapted to, the enforcement of an Act of Congress, thie

administration of which is confided to such department has

the force and effect of law, if it be not in conflict with ex-

press statutory provision. Maryland Casualty Co. v. United —

Stafes, (1920) 251 U. S. 342,°349, 64. L. Ed. 297. Had Con-

gress. itself defined ‘‘area of production’’ as did the Ad-

mipistrator in his regulations, the provision. would .un-

questionably have been valid. -Cf. Tigner v. Texas,. (1940),

310 U. S. 141, 84 L. Ed. 1124.

The Congress reposed the controlling diseretion as to - -

the scope of the exemption in\ the Administrator. And

where ‘‘a determination has beenleft to an administrative

body, this delegation will be respected and_the administra-

tive conclusion left ‘untouched.”’ Gray v. Powell, 314 U.S.

402, 86 L. Ed. 301, (1949). It has long been held that where

Congress has aufherigd a public officer to take kome speci-

fied legislative action when in his judgment that action

is necessary or appropriate to carry out the poliey of Con-

gress, the judgment of the officer as to the existence of the

facts calling for that action is not subject to rev lew. United

States v. Bush & Co. (1940), 310 U. S. 371, 84 L. Hd. 1259.

As stated by Mr. Justice Storey in Martin v. Mott, 12 Wheat.

(U.S.) 31, 32, 6-L. Ed. 541; ‘Whenever a statute gives a

discretionary power to any. person, to be exercised ‘by him

upon his own opinion of certain facts, it is a sound rule. of

~ construction, that the. statute constitutes him - sole ‘and

exclusive judge of the existence of those facts.’ . -

The Court of Appeals did not reverse the findings of the

District Court. . The findings of the District Court are

clearly based upon sufficient facts to justify the same.-

18

These findings of the District Court find the establishment .

to be of such character as that the establishment does not

fall within the sphere of the exception granted by Section 13

(a) (10).

~ The Court of Appeals concedes that if the Administrator’ 4

definitions. are to all respects valid and the exemption’ is

strictly construed, the defendant’s establishment is not

within the exemption granted by ‘Section 13 (a) (10) of the

Act. It overlooks the rule that ‘‘those who set up any such

exceptiun must establish it as*being within the words as

~ well as within the reason thereof’’; U. S.v. Dickson, 15 Pet. -

141, 165, 10 L. Ed. 689.

Section 13 (a) (10) of the Act exempting “‘any-indiv ‘dual

employed within the area of production (as defined by the

Administrator) ’’ contemplates a definition by the Adminis.

_trator not alone with respect to the meaning of the several

words as as¢ertained by an’inspection of the dictionary, but

as fairly and reasonably understood in the light of the

substantive provisions of the statute, and the declared per.

pose of the Act as set forth in Section 2 thereof.

It is significant that Section 3 of the Act contains no less

than 13-definitions of the words employed in‘the statute. .

Yet, the phrase ‘‘area of production’ is not among those

, defined. In leavi ing the definition of this term to the d-

niinistrator the Congress could only be contemplating that,

~ in adapting its declared purpose to vary ing conditions aris-

‘ing, the Administrator would exercise a sound discretion.

reasonably adapted to the— purpose ofthe Act. ,The Ad-

_ministrator’s several amendments, of his original Aefinition, -

referred to by the District, Court, Record 187 to 192, in-

chusive, show a progressive effort on the part of the Ad-

ministrator in this direction. Why should the Adminis-

trator be expressly empowered to define the phrase if the

dictionary definition is to control?

x,

| o @

It may not be presumed that the Administrative hearings

referred to by the District Judge (R. 188) afforded no basis:

for the definitions promulgated. by the Administrator’s

regulations. Fixing the number of employees at ‘‘not to _

exceed 7’’ has a direct bearing on the Congressional pur-

_ pose of.maintainjng the minimum standard of living deemed

‘necessary. It also has a direct bearing on the intent of

Congress. (1) to mold the exemption so as to prevent ‘the

large scale farmer from securing a competitive advantage

over the small seale-producer, and (2) to enable small plants

to compete with larger more industrialized plants perform-

ing similar operations and (3) to prov ide a wage differen-

tial between rural and urban areas and thereby aid the

small farmer in marketing his. goods.

In the light of this. record it may not be justly said that

the Administrative hearings afforded ‘ho basis for para-

graph ‘‘E’’ of regulation 5362 whereby ‘‘ ‘open country’

_ or ‘rural community’ shall not include any , city or town of

~ 9500 or greater population according to the 15th Census,

1930, and ‘immediate locality’ shall not include any dis-

tance of more than 10 miles’? (R. 188). Obviously, as the

' District Judge held (R. 196) such. a restriction does not

contemplate that a town of: Grenier population than 250)

shall lie within the area.

The opinion of the Court-of Appeals stated that ‘in ‘ordi

nary usage the words ‘general vicinity’ indicate a larger

_area ‘than is meant by ‘immediate locality’ and a distance of

25 miles in this day of highly developed travel facilities ix

not beyond the range of usual farm travel’’ (R. 227): But

_ the-finding of ti® District Judge was that ‘am appreviable

portion (of the commodities or materials processed) came

from a distance -beyond the range of usual farm ttavel’’

~ {R. 192). This was a finding of the facts presented in thi-

controversy as to'the particular circumstances and ought

ad

not to have been suiitaa by the Court of, Appeals te’ a

* conclusion of law as to what, country-wide, in general, is

the usual range of farmitravel:

In the above mentioned finding IX, the District Court

. found that there was practically no testimony in the record

showing the percentage of the fruit processed by the de-

fendant establishment which was procured from groves lo-

cated at a distance of more than 10 miles by the shortest

road haul from the establishment; almost all of the testi-

mony on the distance of the point of origin of the commodi-

ties processed by said establishment during said two sea-

sonal periods had reference to a ten miile radius, ‘‘as the

«row flies’’ (R. 193). ‘‘Shortest road haul’ is the only _

reasonable construction’ of the word ‘‘distance’’ in the

clanse of the Administrator's definitions that ‘‘ immediate

locality shall not include any distance of more than 10

miles."*, Yet, the Court of Appeals, treating the ‘‘distance”

fixed by the regulation to be ‘‘as the crow flies”’, undertook

- to find specifie percentages of these materials to have come

from specific distances within or without a ten mile radius

(R. 226 and 227).

The District Judge found wat each of the Administra-

tor’s three definitions effective during the periods in con-

troversy were in all respects valid (R. 194-5). The Court

of Appeals.cast aside the number factors in the several

definitions (R. 226 and 227) and interpreted the Adminis

trator’s use of the word ‘‘all"’ to méan ‘‘substantially all’.

and by so doing, rendered ineffective that part of the Ad.

ministrator’s definitions requiring that all of the commoili-

ties processed nust be obtained from the immediate locality

or general vicinity of the establishment (R. 227).-

We submit that the District Judge was right in measuring ,

the exemption claimed by the Administrator's definitions. ,

ee ot at ees ae.

If so, then, on the facts in the record, as reflected in the

findings of fact made by the District Judge, he was also

right in finding that the defendant's establishment is not

exempt under Section 13 (a) (10).

However, if the Administrator's definitions are not valid,

no exemption in favor of the.defendant exists. On this

point a California District Court says: sige

**Assuming that the Administrator's definition of

‘area of production’ ix wrong, they (speaking of the

defendants) cannot claim exemption under it unless

the Administrator redefines the phrase. so as to ex-

clude their, establishment. .. ‘

Re dlands Foothill Grov es v. Jacobs, District r ‘ourt,

Southern District of California, Central Divi-

sion, January 5, 1940, 30 Fed. Supp. 995 at 1006,

second column. Opinion by Yankyich, Judge.

We submit that the Administrator faithfully exercised

‘his discretion and: judgment in defining the phrase ‘‘area -

of production’’. His interpretation of this phrase is en:

titled to great, weight.

, Usa. American Tracking diudiiteee, Inc. (1940),

310 U.S. 534. “

Miller Hatcheries v. Boye r. (CC A Sth, 1942), 131 Fee

(2d) 283 at 286.

If the -Administrator’s several definition< are valid, the

defendant's establishment does npt come within the exemp- .

tion granted by Section 13 (a) (10).

If the Administrator's definitions are invalid, no ae. y

tion exists under Section 13 (a) (10), because it was me

sary for him to define the phrase aqere the-exe “iaption

could be claimed.

~

5 \:

eee ner Sear er anee ant ceeemonary epee tat nemananene eleven

_In either event, the petitioners are entitled to affirmance

of the judgment entered by the District Judge in their

favor.

Respectfully submitted,

. GeorGeE PaLMer GarretTT,

_As Counsel. for Petitioners.

(7358)