Farmers Reservoir Irrigation Company v. McComb/Dissent Jackson
Mr. Justice JACKSON, dissenting.

If employees operating these irrigation works are so necessary to the raising of crops destined for interstate commerce that they are 'producing goods for commerce' within the Fair Labor Standards Act, I cannot agree that they are not 'employed in agriculture' within its exemptions.

It is admitted that as a separate enterprise this handling of irrigation water does not bring these employees within the Act regulating interstate commerce, because the water is captured, stored, transmitted, delivered and consumed solely within one state. The reasoning by which they are nevertheless brought under the Act is this: To deliver water on arid lands is so inseparable from agriculture thereon that it is to produce goods, that is, agricultural crops, for commerce.

However, 29 U.S.C. § 213(a)(6), 29 U.S.C.A. § 213(a)(6), exempts individuals 'employed in agriculture.' It would seem logical that one who is producing agricultural products for commerce is 'employed in agriculture.' But according to the Court he is not. The irrigation activity seems endowed with some esoteric duplicity not apparent on its face. When we read 29 U.S.C. § 206 or § 207, 29 U.S.C.A. §§ 206, 207, the irrigator is producing crops because his activity is inseparable from crop production; but when we read on a half-dozen sections and get to 29 U.S.C. § 213(a)(6), 29 U.S.C.A. § 213(a), (6), the irrigation has been converted into a distinct and disconnected enterprise.

This paradox is attributed to the definition of agricuture in 29 U.S.C. § 203(f), 29 U.S.C.A. § 203(f), which is said to make a distinction between agricultural production 'in the normal sense' and the same thing 'in the special sense' of § 3(j) of the statute, 29 U.S.C. § 203(j), 29 U.S.C.A. § 203(j). However, its text and history seem to show that the congressional purpose was not to make the agricultural exemption less comprehensive than 'normal' agricultural operations but to make certain that nothing connected with farming remained subject to the Act. It exempted 'any practices * * * performed by a farmer or on a farm as an incident to or in conjunction with farming * * * operations.' Thus the farm exemption did not end at the line fence.

This irrigation seems to me to be 'performed by a farmer' and hence, by definition, part of the operation of agriculture. Certainly the agricultural exemption is not lost because farmers pool their capital through a mutual, nonprofit corporation for no other purpose whatever than to carry water to their own arid lands to make it possible to produce crops. The only purpose of the corporate form is to limit individual liability for a project which is subsidiary to each farmer's main enterprise but which is beyond the means or demands of any of them as individuals. Only the landowners can become stockholders; only the stockholders can become water users, and the operating costs and capital charges are met by assessing them in proportion to their water benefits. Employees engaged in the water operation would be on a quite different footing if it were a water company selling water to the public or the farmer for profit.

If, as the Court holds, these employees are engaged in production of agricultural crops for commerce, I do not see how it can hold that they are not engaged in agriculture. If the Court could say 'To be or not to be: that is the question,' it might reasonably answer in support of either side. But here the Court tells us that the real solution of this dilemma is 'to be' and 'not to be' at the same time. While this is a unique contribution to the literature of statutory construction, I can only regret the great loss to the literature of the drama that this possibility was overlooked by the Bard of Avon. It will probably now be as great a surprise to the proponents of the agricultural exemption as it would have been to Shakespeare, had it been suggested to him. 

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