On Petition for rehearing it is contended by counsel that by its opinion filed herein on March 23, 1943, the Court has made the mere size of the operation the test of the taxability of the enterprise. Inasmuch as counsel for appellee has so construed the opinion, it may be that it would be thus construed by others and we, therefore, think it expedient to clarify the matter in this regard.
The 1941 Session of the Florida Legislature adopted the definition of "agricultural labor" as set forth in the Act of Congress of August 10, 1939, effective January 1, 1940. See sub-section 9 of Section 3, Chapter 20685 et seq., Acts of 1941. The Act of Congress provided:
"(L) Agricultural Labor. The term 'agricultural labor' includes all service performed."
Sub-section 4 provides:
"In handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, any agricultural or horticultural commodity; but only if such service is performed as an incident to ordinary farming operations, or, in the case of fruits and vegetables as an incident to the preparation of such fruits or vegetables for market. The provisions of this paragraph shall not be deemed to be applicable with respect to service performed *Page 607 in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption."
It will, therefore, be observed that agricultural labor only applies to labor in the processing of fruit when and if such service is performed as an incident to the ordinary farming operations, or in case of fruits and vegetables as an incident to the preparation of such fruits and vegetables for market, and further that the exemption is not applicable "with respect to services performed in connection with commercial canning."
The record in this case shows that Growers Equipment Company was not engaged in growing or producing fruit but was engaged in the processing and canning of fruit and that it performed the service for two or three other corporations which produced the fruit and did some processing for others.
It is contended that because the fruit was produced by corporations which were largely owned and controlled by the same person who in effect owned and controlled Growers Equipment Company that Growers Equipment Company was not engaged in commercial canning. With this contention we are unable to agree. Growers Equipment Company and the several corporations which produced the fruit were just as much separate legal entities as they would have been, so far as the matters here under consideration are concerned, as if the stock in each had been owned and each had been controlled by different individuals.
It was, and is, therefore, our conclusion that Growers Equipment Company was engaged in commercial canning and was not engaged in the packing of its own fruit produced by it. The size of the operation is immaterial. It is the method of the operation which controls. Undoubtedly, under the provisions of the Act here under consideration, if the grower, whether a corporation or an individual, grows and processes its own fruit, then its processing activity does not come within the purview of the Act because it is then an incident to the horticultural operation of the owner, but when several different individuals or corporations, or different individuals *Page 608 and corporations, produce fruit and deliver that fruit for packing and processing to another individual or corporation which is engaged solely in the enterprise of packing and processing fruit, then the exemption does not apply to the packing and processing operation.
Petition for rehearing denied.
TERRELL, CHAPMAN and ADAMS, JJ., concur.