Action under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., by L. Metcalfe Walling, succeeded by William R. McComb, Administrator of the Wage and Hour Division, United States Department of Labor, against the California Conserving Company, Inc., later known as Hunt Foods, Inc., for injunction. Judgment for defendant, 74 F. Supp. 182, and plaintiff appeals. Affirmed.

29 U.S.C.A. § 207(c). Walling v. California Conserving Co., D.C., 74 F. Supp. 182, 184, affirmed sub nom. McComb v. Hunt Foods, Inc., 9 Cir., 167 F.2d 905, 906, certiorari denied, 335 U.S. 845, 69 S.Ct. 69, 93 L.Ed. 395; McComb v. C.H. Musselman Co., D.C., 74 F. Supp. 185 (sustained by the Court of Appeals for the Third Circuit, although there is no reported opinion); Hendricks v. Di Giorgio Fruit Corporation, D.C., 49 F. Supp. 573, 576. The stock argument that one claiming an exemption must bear the burden of proof to show that it is applicable on the facts is entirely inconsistent with the argument that the findings of fact can have no weight in the interpretation of the language.

The footnote¹ cited the following Musselman cases: "McComb v. C.H. Musselman Co., [D.C.] 74 F. Supp. 185, affirmed [3 Cir.,] 167 F.2d 918; Sugar Creek Creamery Co. v. Walker [ 208 Ark. 639], 187 S.W.2d 178; Shain v. Armour Co., D.C.W.D.Ky., 50 F. Supp. 907; Walling v. Bridgeman-Russell Co., 2 W.H. Cases 785, (D.Minn.)." To these may be added these similar cases: McComb v. Hunt Foods, Inc., 9 Cir., 167 F.2d 905, certiorari denied 335 U.S. 845, 69 S.Ct. 69, 93 L.Ed. 395, affirming Walling v. California Conserving Co., D.C., 74 F. Supp. 182; Hendricks v. Di Giorgio Fruit Corp., D.C.Cal., 49 F. Supp. 573. With "first processing" as the common denominator and the Musselman concept as its theme, the Employer makes a substantial factual showing.

There is no ground to invoke the theory of technical, narrow construction of the Act to cover this basic food supplying industry. Walling v. California Conserving Co., D.C., 74 F. Supp. 182, affirmed McComb v. Hunt Foods, 9 Cir., 167 F.2d 905, certiorari denied 335 U.S. 845, 69 S.Ct. 69, 93 L. Ed. 395. But agriculture is not commerce, interstate or foreign, nor does agriculture affect such commerce in a constitutional sense.

Of course the burden of proof exists only in connection with an issue of fact and not with interpretation of any law. See 31A C.J.S. Evidence § 121 at 255; Walling v. California Conserving Co., 74 F. Supp. 182 (N.D.Cal. 1945), aff'd sub nom. McComb v. Hunt Foods, 167 F.2d 905 (9th Cir. 1948). Further application of these general rules reveals that the nonexistence of the Midlantic exception is not a precondition to application of § 554(a).

In a civil suit such as this, the plaintiff must prove all essential elements of its case by a preponderance of the evidence, and it must prove that it has a clear right to the injunctive relief sought. Allen v. Pyrene Manufacturing Company, 111 F. Supp. 819 (D.N.J. 1953); Walling v. California Conserving Company, 74 F. Supp. 182 (N.D.Cal. 1945), affirmed McComb v. Hunt Foods, 9 Cir., 167 F.2d 905, cert. denied 335 U.S. 845, 69 S.Ct. 69, 93 L.Ed. 395; Bowles v. Luboil Heat Power Corporation, 55 F. Supp. 703 (E.D.N.Y. 1944); Bowater Steamship Company v. Patterson, 303 F.2d 369 (C.A.2, 1962), cert. denied 371 U.S. 860, 83 S.Ct. 116, 9 L.Ed.2d 98. As was said in United States v. Board of Education of Greene County, Mississippi, 332 F.2d 40 (C.A.5, 1964):

In McComb v. Hunt Foods, 9 Cir., 167 F.2d 905, the above case was reviewed along with other connected cases and was affirmed, Circuit Judge Denman dissenting. In Walling v. California Conserving Co. Inc., D.C., 74 F. Supp. 182, 183, affirmed McComb v. Hunt Foods, 9 Cir., 167 F.2d 905, the Administrator sought to enjoin defendant from violating Sections 207(b)(3) and 207(c) of the Fair Labor Standards Act. Defendant purchased whole fresh apples of inferior grades and parts of fresh apples consisting of peelings and cores obtained from other operators who dry the pulp of the apple.

Certainly Congress did not intend to penalize employers for converting the little apples "which God made", the peelings and cores of other apples, and whole apples already peeled, all perishable, into a non-perishable salable product. In Walling v. California Conserving Co., D.C.N.D.Cal. 1945, 74 F. Supp. 182, an identical question was before the Court, and it was held that the employer of those engaged in processing of apple pomace was clearly within the Sec. 7(c) exemption. In Hendricks v. Di Giorgio Fruit Corporation, D.C.N.D.Cal. 1943, 49 F. Supp. 573, a similar question was involved and the Court, in a well reasoned opinion, found that the 7(c) and 7(b)(3) exemptions were properly taken.