Addison v. Holly Hill Fruit Products/Dissent Rutledge

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Dissenting Opinion

United States Supreme Court

322 U.S. 607

Addison  v.  Holly Hill Fruit Products

 Argued: Jan. 10, 1944. --- Decided: June 5, 1944

Mr. Justice RUTLEDGE, with whom Mr. Justice BLACK and Mr. Justice MURPHY concur, dissenting.

In my opinion the Administrator has defined 'area of production' in a valid manner, and therefore the employee petitioners should prevail. But if, as the majority hold, his definition is not valid, then the exemption is not operative, and for that reason the petitioners likewise should prevail. I dissent, therefore, from the Court's conclusion that the definition is void. I dissent equally from the wholly novel disposition it makes of the cause on that hypothesis, in remanding it to await the Administrator's retroactive redetermination of the parties' rights.

The basic issue, as the case was presented, is whether the Administrator can include in the definition not only spacial limits but also a limit upon the number of employees in exempted establishments. The Administrator included this factor in his first definition; [1] later reexamined it in extensive hearings; [2] concluded on the record thus made that no purely geographical definition could be conformed to the major legislative policies announced in the statute; [3] has retained it in each of several later definitions, varying in other details, framed after extensive hearings; [4] and now earnestly insists it, or an equivalent limitation on size of the plant, must be included, unless any definition he may make is to work havoc with some major policy of the Act, either by exempting large numbers of industrial employees [5] or by creating disturbances of competitive situations, both for farmers and for canners and packers, [6] which the statute expressly sought to avoid.

The Administrator's task is highly complex. It involves defining exemptions for employees throughout the nation engaged in 'handling, packing, storing, ginning, compressing, pasteurizing, drying, preparing in their raw or natural state, or canning of agricultural or horticultural commodities for market, or in making cheese or butter or other dairy products.' Section 13(a)(10), 29 U.S.C.A. § 213(a)(10). All these operations follow immediately upon harvest and removal from the field or milking. All can be done on the farm and frequently are done there, but may be done elsewhere, often in factories. All consist in the first stages of preparation for market.

But whether the specified operations will be done on the farm, as part of the farm work or away from it, and in either small neighborhood establishments or in larger industrial plants, will depend upon a variety of factors as great as that which comprehends the whole vast process of starting the nation's crops, over 300, [7] on their respective marketing courses. The initial steps in marketing such widely different products as cotton and apples; tobacco and milk; potatoes and citrus fruits; legume crops, wheat, corn and other grains, on the one hand, and tomatoes, strawberries, truck garden products, etc., on the other, are within the delegation.

The mere enumeration of these instances indicates some of the variables involved. Others add to the difficulty. Highly perishable crops, as fruits and vegetables, require immediate action in these stages of handling. Cotton, grains, root crops, etc., less perishable, may wait longer on the farm, some for months, before these processes become necessary. Some crops are highly concentrated for production in a few regions, such as citrus fruits in Florida, Southern Texas, and Southern California, but are marketed on a nation-wide scale. Others have regional areas of production, like cotton in the South, celery in Michigan, tobacco in the border states and a few northern regions, yet depend on the national market. Still others have regions of greater or less concentration, but are grown all over the nation, like wheat and other grains, apples, potatoes, etc.

Obviously, 'area of production,' in the sense of where the commodity is produced for purposes of commercial marketing, will vary from the whole nation, in the case of the more common grains, fruit crops and root crops, down to a few highly concentrated regions or areas in the case of others more dependent upon special climatic and soil combinations. And between the extremes of nation-wide and highly localized production are all ranges of sectional and regional production areas. [8]

Respondent regards the 'area of production' as the whole region where a commodity is grown, and therefore says the Administrator has no more to do than locate the existing limits of these areas. By this criterion the South, perhaps including California, would be the unalterable 'area of production' for cotton, the whole nation for eggs, wheat, corn, etc. This conception would nullify the delegation, making of the Administrator merely a surveyor in the wrong place. Congress clearly was not making him only a finder of fact, namely, of the geographical limits surrounding regions where 300 different commodities are produced. Such a view would exempt all employees engaged in the operations specified in Section 13(a)(10).

The same objections forbid regarding the 'area of production' as the region from which the particular plant purchases its raw material. The only substantial difference would be to make the Administrator's fact finding task a more impossible one. A definition would be required for every plant engaging in any of the specified operations for each of the more than 300 agricultural and horticultural commodities produced annually in the United States. Congress hardly could have intended to load upon the Administrator a task of these infinite proportions. Nor did it intend the same time intend to overwhelm him or to make that exemption automatic. Congress intended the Administrator to define the area of production. It did not at the same time intend to overthelm him with making myriads of particular and highly variable definitions for each operating unit, or to make him merely a runner of courses and distances, whether large or small. It rather intended him to make practical, workable and therefore generic and stable definitions.

It follows necessarily that the Administrator's power is discretionary and the important questions are to what extent and in what manner may his discretion work. Neither subdivision (a)(10) nor Section 13 as a whole supplies these answers. The section itself does not supply all the standards necessary for definition of the term. At most it affords direction to exempt some but not other employees engaged in the specified activities and that those exempted must be within the 'area of production.' This necessarily includes some region where the commodity is produced. But since that region is an unknown quantity and so also is the question what employees within it are to be exempted, solutions must be found either in other provisions of the statute or in the legislative history, unless the delegation is to fall for want of standards.

The statute itself furnishes clear guides for directing the Administrator. He is confined, as has been noted, by subsection (a)(10) to employees engaged in the specified initial operations of marketing. They must work within some producing region. Apart from the exemption they are within the Act's coverage, but close to the major line it draws between farm workers, who are excluded from, and industrial labor, which is within its coverage. Depending, not upon what they do, but upon where and how they do this work, they would fall on one side or the other of this line and within or without the incidence of the evils the Act sought to eradicate. These were 'the existence, in industries * * * of labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers. * * *' [9] Congress exercised its authority over commerce, 'to correct and as rapidly as practicable to eliminate the conditions above referred to in such industries without substantially curtailing employment or earning power.' Section 2(a), (b), 29 U.S.C.A. § 202(a, b). (Emphasis added.)

The broad line between farming and industry runs throughout the Act. [10] It is the statute's basic line of policy between coverage and noncoverage. The line not only is pertinent to each of the statute's provisions but, where the contrary is not clearly and unambiguously stated, it is controlling. There can be no assumption that Congress intended employees in one group to be transferred to or treated as being in the other where no such clear mandate can be found.

In determining what Congress intended by the delegation, it is crucial to keep in mind that, whatever decision the Administrator may make and by whatever criteria, the effect of his action must be to put some employees on one side of this line and others on the opposite side. That consequence he cannot escape. And, because he cannot avoid it, the line is pertinent and material to his choice, as it is to all others he must make in performing his duties. It is the statute's lodestar. The distinction between farming and industry is the essence of his determination. An 'area of production' determined without reference to this distinction would contradict, not enforce, the statute's basic policy. And this appears, not solely from the policy itself and the effects of failure to take it into account, but from a consideration of other determinations the Act confides to the Administrator and of the manner in which it requires him to make them.

Thus, in issuing minimum wage orders and industry classifications, he and the industry committees must have 'due regard to economic and competitive conditions,' and act so as not to 'substantially curtail employment' or 'give a competitive advantage to any group.' And there is a specific prohibition against fixing wages or classifications 'solely on a regional basis.' Rather the governing criteria are to be competitive conditions, wages for comparable work fixed by collective bargaining or by voluntary minimum wage plans. Section 8(b), (c), (d). The statute's primary design was to bring industrial workers under its protections and to eliminate as rapidly as possible the substandard conditions of such labor. But this was to be done with an eye also to two other matters: one, that by too rapid advance employment be not curtailed; and, two, that competitive conditions in the affected industries be not unduly disturbed or competitive advantages created. Cf. Section 2.

These purposes were inescapably pertinent to the problems of exemption arising under Section 13(a)(10). They were likewise pertinent to other exemptions, cf. Section 7(c) and compare Section 7(b), and to still other delegations the statute confided to the Administrator. That Congress did not burden the books with 'an itemized catalogue' [11] of standards in each instance of delegation, gives no basis for believing that what permeated all else found these parts insulated. The Administrator clearly had power, and more, the duty, to take account of these factors.

If so, he could not escape the question of size. And indeed the Court does not deny this. Size certainly is not irrelevant to distinguish within any group which may do essentially the same work in two different ways, one the farming way, the other the industrial one. If is not irrelevant to economic dislocations or to curtailments of employment. And it is relevant to these things as much within as without an area of production. [12]

The legislative history discloses one object of the exemption as originally proposed was to protect small farmers, who are unable to perform these operations at the farm and therefore are dependent upon whatever nearby establishments may exist, whether large or small. Various members of the Senate and of the House sponsored amendments for this purpose. [13] As the bills went to conference each contained flat exemptions, substantially covering the activities now specified in Section 13(a)(10). But the debates in both houses show that even the sponsors of the various amendments differed or were doubtful concerning whether the amendments would give exemption to large plants. [14] There was general agreement that small ones should be relieved from coverage. [15] Senator Reynolds went further and proposed several amendments to relieve all small plants from the Act's provisions, not merely those engaged in the limited operations specified in the bills or Section 13(a) (10). These were defeated. [16] And there was vigorous demand, from the sponsor of the bill in the Senate and others, [17] for restricting the scope of the amending exemptions to small plants. These differences were not settled on the floor of either house. But when the bills came to conference, they were resolved by changing the flat exemptions into discretionary ones to be defined by the Administrator.

Since the delegation feature did not appear until the conference report and there is little in that report or in the debates upon it to add light, the previous discussions are wholly inconclusive, except in one respect. This was to show that there was great variety and complexity of opinion, and that this revolved around the question of size. That question continued unresolved up to conference and was resolved there, not by decision either way, but by reference to the Administrator. It must be taken therefore that the purpose was to give him discretion to make the necessary choices between the conflicting viewpoints as the facts of particular situations would give occasion for doing. And, it would seem, the preponderance of sentiment in favor of exempting small plants, but not large ones, except in occasional instances where this would be necessary to protect the small farmer, well could be taken as his guiding light. The legislative history, therefore, in so far as it sheds light at all, clearly is not inconsistent with what the Administrator has done, but on the contrary supports it.

The Court does not find the Administrator acted improperly by taking these considerations into account. He only must not state them in his definition. And this matter of mere formulation is the crux of the case. The definition must be made 'in relation to the complicated economic factors that operate between agricultural labor conditions and the labor market of enterprises concerned with agricultural commodities and more or less near their production.' (Emphasis added.) The Administrator is given 'appropriate discretion to assess all the factors relevant to the subject matter,' which is essentially one of 'economic determination,' too complex for litigation to solve. He 'may properly weigh and synthesize all such factors.'

In making his economic synthesis, however, the Administrator must state his results only in surveyor's terms. Congress, when it granted the exemption, 'restricted the Administrator to the drawing of geographic lines, even though he may take into account all relevant economic factors. * * *' The 'zone within which economic influences may be deemed to operate and outside of which they lose their force' cannot be defined directly and purposively to draw the line between the zone of farming and the zone of industry. This must be done only indirectly, in an awkward, roundabout way.

Nothing prevents the Administrator from drawing the lines as he thinks best, unless the suggestion of the specially concurring opinion is followed that they must be drawn in regular circles or squares. The courts have no business to tell him where to put them. He can define distance by air lines or by road lines to market. He can run the lines around big towns, but not around big factories. Baltimore could be excluded, but not Martin's bomber plant or one like it, in size and methods, for processing or canning fruits and vegetables. Towns may go out, though surrounded by truck farms, but not commercial canneries. Residences, apparently, must surround the cannery. In short, the Administrator can draw whatever map lines he thinks will achieve the appropriate economic adjustments, except one which leaves out perhaps the biggest cannot factory of all, and no court can interfere. I do not believe that Congress, when it gave the Administrator his complicated task and authorized him to consider all the relevant and complex economic factors, not only denied him the power to execute those considerations in his action, but compelled him to frustrate them in defining 'area of production.' The Court does not deny the Administrator may consider the size of the plant, and make this even the crucial factor in his decision. Yet it would only impede or defeat his judgment, formed on proper considerations, as well as the statute's purposes, to require him to state the exemption, not simply in the terms best chosen to express his meaning clearly and definitely, but in others couched in pure though tortured geography. According to his experience and confirmed judgment, shared by successive administrators and never reversed or modified, to require the latter method of formulation would make his task well nigh impossible or, if not that, incapable of being discharged without doing violence to the Act's major purposes and standards. [18]

So much of authority and power to defeat the statute's intended operation cannot be given to mere verbalism, more especially to one word, torn in context, function and purpose from the remainder of the Act. 'Area,' it is true, means area. But 'area of production' means more. 'The notion that because the words of a statute are plain, its meaning is also plain, is merely pernicious oversimplification. It is a wooden English doctrine of rather recent vintage * * * to which lip service has on occasion been given here, but which since the days of Marshall this Court has rejected, especially in practice. * * * A statute, like other living organisms, derives significance and sustenance from its environment, from which it cannot be severed without being mutilated.' [19] And so does a section in a statute. 'Area of production' as used in Section 13(a)(10) means an exemption, limited to persons performing the specified operations within a producing region, but selected from all so situated by an exercise of the Administrator's judgment in accordance with the statute's prime objects and chief limitations, among which necessarily is the size of the plant. If that is so, I see no good reason for forbidding the Administrator to say so.

It follows the Administrator has not improperly exercised his function, the definitions are valid, and respondent's employees were not exempt from the statute's provisions.

But if the definitions were invalid, as the Court holds, I could not agree to the extremely novel disposition it makes of the case. We are dealing with an exemption, not with the statute's primary coverage. Concededly the respondent employer was liable to petitioners for the minimum wages, overtime pay and statutory penalties under Section 16(b), 29 U.S.C.A. § 216(b), if they were not exempt under Section 13(a)(10) or some other exemption. Ordinarily exemptions are not favored. Coverage, not exemption, is preferred. If the exemption is dubious, it is not given effect. If ambiguous, it is resolved strictly in favor of the statute's application. Spokane & I.E.R. Co. v. United States, 241 U.S. 344, 36 S.Ct. 668, 60 L.Ed. 1037; Piedmont & N.R. Co. v. Interstate Commerce Commission, 286 U.S. 299, 311, 312, 52 S.Ct. 541, 545, 76 L.Ed. 1115; McDonald v. Thompson, 305 U.S. 263, 59 S.Ct. 176, 83 L.Ed. 164. In this case, if the exemption does not apply, the petitioners are within the statute and respondent is liable on their claims.

To escape liability, respondent has the burden of showing the exemption does apply. But to do this it cannot merely show the definition of the Administrator is invalid. That would only leave itself and the petitioning employees subject to the Act's provisions, which require the payment of the claims. Respondent's dilemma therefore is both sharp and real. If the definition is valid, it does not cover these employees and respondent is liable to them. If the definition is invalid, clearly it exempts no one, petitioners are covered by the Act, and the respondent must pay. This is true whether the reason dictating invalidity is want of standards, application of the wrong ones, or merely formulating the result in the wrong way. This dilemma presents the alternative which respondent, the Court of Appeals and this Court have attempted to avoid in order, so it is said, to escape an 'either-or' conclusion, which is the kind the law almost always must make. It is one from which there is no escape without exercise of inventive genius beyond the right of either court to apply and which, as applied here, makes the cure worse than the disease.

Respondent's invention, and likewise the Court of Appeal's, was to strike the limitation on the number of employees and apply the remainder of the definition. This but emasculates it. Hence all here, but one, are agreed such liberty cannot be taken with the Administrator's function. This Court's invention however does it equal or greater violence, first, as I think in emasculating it; second, and lacking even more in justification, in requiring it to be exercised with backward reaching effect.

If the Court had sought its escape in finding that there were no standards to control the Administrator's discretion or that he had applied the wrong standards, one might understand its refusal to sustain the definition. But that too would mean that petitioners would recover. The Court does neither. There is no claim, except a semblance of suggestion in a separate opinion, that the statute supplies no standards and therefore gives the Administrator 'a roving commission to create exemptions.' Nor is there one that the wrong standards were used. The invention is called forth only to correct a mode of statement.

If that were all, there would not be much room to complain. But, in addition to compelling the Administrator to make the definition in a manner which frustrates his function and the statute's objectives, or only partly fulfills them, the decision opens the door to a general expansion of the novel, and I think unauthorized, practice of retroactive administrative determination of private rights. That is true, unless these petitioners are to be specially treated, although less than a majority of the Court agree that the authorities cited to sustain it justify the procedure outlined. But if the procedure is justified in this case, it is in any other where an administrator mistakenly includes in a regulation a factor later held to make it invalid. No reason stated makes this case a special one. And there is none. It cannot be taken that these parties are to be singled out for unique treatment, merely in order to avoid the normal legal consequences of invalidating administrative action. Hence, every interest affected by such action now must take two risks in place of one: first, the normal, inescapable risk that the governing regulation may be held invalid; second, in that event, the novel one that some future regulation, a wholly unknown quantity, will relate back over an indefinite time to create entirely new or different and unexpected rights and liabilities.

Of course there must be room for creative analogies in the law to give the desired escape from mechanical concepts and permit shaping its remedies. But we are as often told that Congress should perform the creative act in Congress' field. This should be most true where what we are called upon to recreate is Congress' own handiwork. If Congress intended the Administrator to act retroactively, Congress wholly failed to express this purpose.

Moreover, it is not remedies but rights which are thus refashioned. And not equity but law remolds them. Who knows, before the redefinition, what persons may be included in its coverage? Or whether it may not have to be made again? The same persons cannot be included. Otherwise there would be no point to this decision. If the Administrator can rephrase the same coverage in wholly geographic terms, apart from delay the only result will be to have criticized his language. If he cannot do this some persons, and no one can tell in advance how many, will be deprived altogether of rights, others given them who had none. So with liabilities.

The innovation would be serious if confined to this case or this Act. It is beyond prediction what the consequences may be, of uncertainty, or hardship, of injustice in deprivation of rights, in windfalls of right to others, in laying on new and wholly unexpected liabilities and in relieving from anticipated ones, if retroactive administrative refashioning becomes the general practice. The alternative, either to sustain or to hold void the regulation, and fix the rights accordingly, is not only the accepted and established one. It is the only one by which men can know the risks they assume at the time they become subject to them.

Retroactivity is not favored in law. For this there are sound reasons, in some cases constitutional ones. Cf. Forbes Pioneer Boat Line v. Board of Commissioners, 258 U.S. 338, 42 S.Ct. 325, 66 L.Ed. 647; Ochoa v. Hernandez y Morales, 230 U.S. 139, 33 S.Ct. 1033, 57 L.Ed. 1427. There are few occasions when retroactivity does not work more unfairly than fairly. Congress, the state legislatures and the courts apply the principle sparingly, even where they may. Cf. Graham and Foster v. Goodcell, 282 U.S. 409, 51 S.Ct. 186, 75 L.Ed. 415; United States v. Heinszen, 206 U.S. 370, 27 S.Ct. 742, 51 L.Ed. 1098, 11 Ann.Cas. 688. Seldom if ever therefore may administrative or executive authority to apply it be inferred from legislation not expressly giving it. Compare Arizona Grocery Co. v. Atchison, T. & S.F.R. Co., 284 U.S. 370, 52 S.Ct. 183, 76 L.Ed. 348; Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110, 59 S.Ct. 423, 83 L.Ed. 536. But, in any event, whatever corrective needs may prompt and vindicate a grant of such authority in other circumstances are not present in this application. Yet, if this decision is to mark the beginning of a general pattern, such authority now bids fair to become a common characteristic of administrative action.

The administrative process has increasingly important functions in our legal system. Ordinarily it does enough, if it takes care of today and tomorrow. When it begins to add yesterday, without clear congressional mandate, the burden may become too great. In any event, that has not heretofore generally been considered its task. If that task it is to be added, the addition should be made by the body whence administrative power is derived, not by this Court's imaginative resourcefulness.

Finally, respondent has not asked for this retroactive 'relief.' And this may be for entirely good reasons of its own. What respondent sought in the District Court, what it secured in the Court of Appeals, and what it has sought here, but clearly is not entitled to have, is a judicial declaration that, as a matter of law, its employees would have been exempt under any valid definition the Administrator might have adopted. In effect, this is a claim of exemption by the statute itself, one which would nullify the Administrator's power. Relief not sought should not be forced on respondent by an exercise of this Court's inventive genius. More especially should this not be done on the court's own motion, without any of the parties having had an opportunity to consider or discuss it in the briefs or in argument. Under such a policy, generally followed, a litigant never can know with what kind of gift horse he may come out, even if successful. And in this case the parties have faced the double uncertainty, wholly unanticipated, of creation here and recreation by the Administrator, when the latter undertakes relieving the District Court of the duty to await his further action. [20]

The judgment of the Court of Appeals should be reversed and the cause should be remanded to that court for determination of the other issues in the case. [21]

Mr. Justice DOUGLAS join in that part of this dissent which would hold that the Administrator has defined 'area of production' in a valid manner.


^1  Promulgated October 20, 1938, effective four days later. 3 Fed.Reg. 2536.

^2  See Hearings on Proposed Amendment of Section 536.2 (area of production) of Regulations issued under the Fair Labor Standards Act of 1938, Wage and Hour Division, Department of Labor Ref. Nos. 54; 73; 162a; 162b; 162c.

^3  Tests proposed and considered included: the mapping of producing territories; a flat mileage-population definition; a 'first concentration point' criterion; a standard which would include only establishments which handled and prepared for the account of the farmer commodities to which he retained title. All these and others were rejected by successive administrators, after being urged and opposed by industry representatives, as presenting insuperable obstacles to carrying out the statute's major policies.

^4  Compare the definition promulgated October 20, 1938, 3 Fed.Reg. 2536, with the amendments of April 20, 1939, 4 Fed.Reg. 1655; June 17, 1939, 4 Fed.Reg. 2436; October 1, 1940, 5 Fed.Reg. 2647; and April 1, 1941, 6 Fed.Reg. 1476.

^5  Cf. Department of Labor Release R. 226, March 18, 1939; G.-60, July 24, 1940.

^6  A flat mileage definition was in force during part of the time material in this case, but was abandoned after its effects, by way of creating serious unfair discrimination between competing establishments and narrowing grocers' outlets, became evident. Cf. Department of Labor Release, G.-60, July 24, 1940.

^7  Cf. Farm and Ranch Schedules, U.S.C.ensus of Agriculture, 16th Census of the United States, 1940.

^8  As the legislative history shows, cf. text infra at notes 13-16, there was fairly general agreement that some part of the work specified in Section 13(a) (10) should be exempt, whether or not it was done on the farm. But beyond this, a great variety of opinion existed both as to how far the exemption should go and as to the economic basis for it. Among the latter were views that the exemption should be made because the farmer bore the cost of the work, cf. 81 Cong.Rec. 7656, 7877, 7880; or because many farmers in fact performed it on their farms and as part of their operations, cf. Section 3(f), 52 Stat. 1060, 29 U.S.C.A. § 206(f); 81 Cong.Rec. 7657-7659; or because others who had to resort to independent contractors to have it done would be discriminated against unless the work were exempt; cf. 81 Cong.Rec. 7656, 7658 7660, 7876. Some legislators were concerned to have the exemption apply whether the work were done in large or small plants; others to limit it to small ones only; and still others to secure it completely for particular crops. Numerous amendments were tendered, but for the most part defeated. It was not until the Conference Committee's report was framed that the problem was solved by referring it to definition by the Administrator. But even proponents of the amendments which were adopted recognized that the problem was one which 'the board * * * would have to decide,' 81 Cong.Rec. 7878, 'something that would have to be worked out,' 83 Cong.Rec. 7401.

^9  Section 2(a). These conditions Congress found burden commerce, lead to labor disputes obstructing it, interfere with fair and orderly marketing, and spread themselves by causing the channels of commerce to be used for marketing among the several states the goods produced under them. Ibid.

^10  "Industry' means a trade, business, industry * * * in which individuals are gainfully employed.' Section 3(h). "Agriculture' includes farming in all its branches * * * 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.' Section 3(f). Section 5, 29 U.S.C.A. § 205, provides for industry committees and their functioning, to which the Administrator submits data and from which he receives recommendations and reports which he must approve before making them effective in the form of minimum wage rates and industry classifications. Cf. Section 8, 29 U.S.C.A. § 208.

^11  National Broadcasting Co. v. United States, 319 U.S. 190, 219, 63 S.Ct. 997, 1011, 87 L.Ed. 1344.

^12  Respondent however, consistently with its 'fact-finder' or 'surveyor' theory of the Administrator's function, says the purpose was not to distinguish, within the specified activities, between farmers and industrial workers; it was rather to go a step further and exempt the latter as well, provided only they were within an area of production as respondent conceives it. That the Administrator may exempt some, or perhaps many, who are in fact industrial workers, because they are doing these activities under factory conditions and methods, may be conceded. That he must exempt all of them, or some larger number than his judgment, formed after considering the facts, the statute's policies, and the effects of what he may do, finds proper, cannot be accepted. Respondent claims an exemption fixed by the Act. The statute has given it one only when, in the Administrator's judgment, not arbitrarily formed, it meets the conditions which he finds will execute the legislative policy.

^13  The Senate's first suggestion of 'area of production' came from Senator Copeland, 81 Cong.Rec. 7656, although Senator Schwellenbach became the chief proponent of the concept there. Senator Black, sponsor of the bill, was concerned with the scope of 'area' and sought a more accurate term for limiting its effect so as not to exempt workers in large plants, cf. 81 Cong.Rec. 7656 7660, 7876-7878, and others expressed opinions that large operators should not be exempted. For portions of the discussion on the Senate floor see also 81 Cong.Rec. 7648-7673, 7876-7888, 7927-7929, 7947-7949.

In the House of Representatives, the sponsor of the bill was Representative Norton. Chief proponent of the amendment involving 'area of production' was Representative Bierman. Cf. 83 Cong.Rec. 7325, 7326, 7401-7408.

^14  Responding to inquiry whether packing houses in Iowa and Illinois would be exempted by his amendment, Representative Bierman said: 'Speaking frankly, I think that is something that would have to be worked out.' 83 Cong.Rec. 7401. Senator Schwellenbach clearly recognized his amendment would exempt large as well as small packing and similar plants, 81 Cong.Rec. 7877, 7878, but expressed the opinion there would not be 'any large or enormous plants' in the specified operations. In response to Senator Black's inquiry concerning the indefinite effect of 'area' without further definition, he said: 'I gave considerable thought to that. I do not believe it is possible, and that is something which the board, which has been accused of receiving too much power, would have to decide. It would have to provide a definition of 'immediate area of production." Cf. 81 Cong.Rec. 7876-7878.

^15  See the discussion cited in notes 8, 13 and 14.

^16  Cf. 81 Cong.Rec. 7948. Respondent argues from this that the intent of Congress was shown not to authorize the Administrator, by the later conference amendment, to distinguish among plants within the 'area of production' on the basis of size. The argument however ignores the fact that the amendments proposed by Senator Reynolds were drawn and intended to exempt from the statute's operation all plants having fewer than the number of employees (the amendments varied from five to ten in this respect), not merely plants engaged in the particular marginal operations specified in the various forms the Schwellenbach Amendment took during the debate. The conclusion to be drawn from the rejection of the Reynolds Amendments is not that the Senate intended to exempt all plants, large and small, covered by the Schwellenbach Amendment or by the form taken by Section 13(a)(10) in conference, but rather that the Senate was unwilling to except even all plants having as few as five employees from the statute's coverage.

^17  Cf. notes 13 and 14, supra, and the cited discussions.

^18  Cf. notes 1-6, supra, and text.

^19  United States v. Monia, 317 U.S. 424, dissenting opinion at page 431, 432, 63 S.Ct. 409, 412, 87 L.Ed. 376.

^20  The Administrator is not a party to this suit, but has appeared and participated here as amicus curiae.

^21  In view of its disposition of the case, the Court of Appeals did not consider respondent's defenses under Sections 7(b) and 7(c) of the Act, on both of which the District Court held for petitioners.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).