Donnely v. Mavar Shrimp & Oyster Co., Inc.

190 F.2d 409, 1951 U.S. App. LEXIS 2438, 20 Lab. Cas. (CCH) 66,468

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 17, 1951
• Docket: 13419_1
• Status: Published

Opinions

HOLMES, Circuit Judge.

This action is brought under the Declaratory Judgments Act, as amended, which is contained in Chapter 151 of the Federal Judicial Code of 1948, as amended by the Act of May 24, 1949. See Title 28 of U.S.Code, Sections 2201 and 2202. Federal jurisdiction is based solely on diversity of citizenship, and the amount involved exceeds $3000 exclusive of interest and costs. This appeal is from a judgment declaring the rights and legal relations of the parties under Section 213(a) (5) of Title 29, United States Code.

The Declaratory Judgments Act is a procedural statute that provides an additional remedy for use in cases of which the federal courts already have jurisdiction; it should be given a liberal construction. The procedure is expressly recognized in Fed. Rules Civ.Proc. rule 57, 28 U.S.C.A., which says that the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate; also that the court may order a speedy hearing of an action for declaratory judgment, and may advance it on the calendar. See Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 5 Cir., 137 , affirmed in 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949; Gully v. Interstate Natural Gas Co., 5 Cir., 82 F.2d 145; Mississippi Power & Light Co. v. City of Jackson, 5 Cir., 116 F.2d 924; Borchard, Declaratory Judgments, pp. 619-621.

We have no doubt that this case involves an actual justiciable controversy, which in the interest of justice should be speedily heard and determined in accordance with the letter and spirit of the just-cited rule. Delay in adjudicating this controversy might be financially disastrous to many small operators in the shrimp and oyster industry. Said Section 213(a) (5), as amended, exempts from the minimum-wages and maximum-hours provisions of the Act any employee engaged in the catching or cultivating of any kind of fish, shellfish, or other aquatic forms of animal and vegetable life, including packing of such products for shipment, “processing (other than canning),” marketing, freezing, curing, storing, or distributing, the above products, or byproducts thereof. The word processing, as used in the exempting clause, includes a series of acts, events, and occurrences, which are necessary to transform raw seafood into an edible commercial product. The statute excludes from the minimum-wages and maximum-hours provisions of the Act every one of the acts and progressive steps, except canning, included in the term processing.

Canning includes hermetically sealing, and sterilizing or pasteurizing, and every other operation necessarily performed on the products before they are placed in cans, bottles, or other containers to be hermetically sealed, as well as the actual placing of the commodities in such containers; also included are subsequent operations such as the labeling of the cans or other containers, and the placing of the sealed containers in cases or boxes, whether such subsequent operations are performed as a part of an uninterrupted or interrupted process. Every other act or step in catching, curing, marketing, and distributing aquatic products is embraced in the exemption clause except only those especially performed upon the products for the purpose of canning. All the preparatory things are excluded from the act that can be and are done when canning is not intended or contemplated; and all the subsequent operations are excluded, as a matter of course, when canning has not actually taken place. Catching, freezing, curing, shelling, or shucking, shrimp or oysters, constitutes no part of the canning process. Corn is sometimes shucked in the field, and pecans are often shelled without canning. Wringing its neck and plucking its feathers are primary but separable processes in cooking a chicken, and all three are processes other than canning. The primary processes in the silk industry are performed in Asia, and the partially processed silk product is by law imported, duty free, into the United States. Ginning is the primary process in the cotton textile industry, but a cotton gin is distinguishable from a textile mill. A corn shucker is not a miller, and a shrimp picker is not engaged in canning shrimp, any more than a corn shucker is engaged in canning corn. The least that can be said is that the processes are separable; and that the Act so contemplated is indicated by retaining the exemption as to processes other than canning.

If picking shrimp and shucking oysters are not exempted, what are the processes other than canning that were in the legislative mind? Catching, cultivating, curing, storing, freezing, and marketing, are without qualification specifically exempted from the wages and hours law. What, then, we repeat, are the processes (other than canning) that the amendment intended to exclude from the exemptions if the actual canning retroactively embraced everything previously done to the product except catching, curing, freezing, storing, and marketing? The position and punctuation of clause (5) in paragraph (a) of Sec. 213, Title 29, indicate that the parenthetical words (other than canning) modify only the preceding word “processing,” and not the words “marketing, freezing, curing, storing, or distributing”. Curing means to prepare for preservation or permanent keeping; to preserve, as to cure beef or fish. See Webster’s Dictionary. We must give full effect to all the words used by the Congress; to do this means that preparing shrimp or oysters for preservation or permanent keeping is exempted from the provisions of both Sections 206 and 207 of said Title 29. These appellants are not engaged in canning; they do not work in the canning room; their work is frequently done without any intention on the part of their employer to can the articles that are being processed; they are engaged in ,a process involving shrimp and oysters that is distinct from, not necessarily related to, and often not succeeded by, canning. Cochrane v. Deener, 94 U.S. 780, 788, 24 L.Ed. 139; Waldman v. Swanfeldt, 9 Cir., 66 F.2d 294, 295; Henry v. Markesan State Bank, 8 Cir., 68 F.2d 554, 557; Waller v. Humphreys, et ux., 5 Cir., 133 F.2d 193; McComb v. Consolidated Fisheries Company, 3 Cir., 174 F.2d 74; Cincinnati Soap Company v. United States, D.C., 22 F.Supp. 141, 143; State v. Pacific American Fisheries, 73 Wash. 37, 131 P. 452-454.

The statute recognizes that, in obtaining and offering shrimp and oysters for sale for use as food, it is necessary to cultivate them, catch, cure, freeze, pack, can, or otherwise transform, them into a marketable product. Prior to 1949, Section 213(a) (5) exempted every act of1 an employee in catching, curing, canning, cultivating, and marketing, any kind of shellfish or other aquatic forms of animal and vegetable life. In 1949, Section 213(a) i(5) was amended so as to exclude canning from the exemption, but it left the exemption intact as to every other distinct act and feature of the industry that was necessary to convert the raw material of aquatic life into a marketable product. As used in the statute, processing is an inclusive word that embraces all the acts necessary to improve the material and convert it into an edible product. The amendment of 1949 did not strike the word processing out of the exempting clause (as it might have done), but limited its scope and effectiveness only to acts and doings other than canning. The act of canning is only one of several processes necessary in turning the aquatic material into food fit for human consumption. We must ascribe to the legislative mind some reason for leaving the word processing (other than canning) in the exemption clause of said Section 213(a) (5). What are processes other than canning are questions of fact to be decided upon the special characteristics of the process or operation of the particular business or industry.

The findings of fact by the district court are not clearly erroneous; and the judgment appealed from is affirmed.

Affirmed.