I concur in the statement made by the majority that the unemployment compensation act should be liberally construed in order to accomplish the purpose mentioned in § 2, chapter 162, Laws of 1937, p. 574 (Rem. Rev. Stat., § 9998-102). However, I am unable to agree that the legislature intended to bring appellants, and those in like positions, within the provisions of the act. A liberal interpretation may properly be invoked to aid the apparent purposes of a statute. It may not be used to evade its plain intent or to deny its clear mandate. Keeney v.Beasman, 169 Md. 582, 182 A. 566, 103 A.L.R. 1515.
The problem confronting us may be stated very simply. Do the employees of appellants, who are engaged in packing and warehousing fruit, come within the exception mentioned in the unemployment compensation act when the services designated as agricultural labor are performed off the farm?
This action was decided on demurrer. Consequently, respondents have admitted as true paragraph eight of appellants' complaint that the services performed by appellants' employees are services customarily performed by a farm hand on a farm. The allegations from paragraph eight read:
"The employees rendering these services are known principally as: receivers of fruit, hand truckers, dumpers, washing machine operators, sorters, packers, packing room flunkies, lidders, labelers, checkers, stampers, car loaders and stackers. Each andall of such services *Page 613 is mandatorily and necessarily performed in order that thefruits can be marketed; and the services hereinabove mentionedrendered by the employees of the plaintiffs are the sameidentical services necessarily performed by employees of farmerson fruit orchards for the farmers and growers of the fruitwhenever the farmer has a large enough fruit orchard, in order tobe able to wash, sort, and pack his own fruit. The said servicesare exactly the same, regardless of where the services areperformed. The said services are essential and necessary incidents to the preparation of the fruit for market, without which such fruit cannot be marketed in the channels of trade." (Italics mine.)
Our unemployment compensation statute passed in 1937, chapter 162, p. 574 (Rem. Rev. Stat. (Sup.), § 9998-101 [P.C. § 6233-301]et seq.) in so far as it is material to the discussion of this case, provides:
Section 7 (a), p. 587:
"Payment. —
"(1) On and after January 1, 1937, contributions shall accrue and become payable by each employer for each calendar year in which he is subject to this act, with respect to wages payable for employment (as defined in section 19 (g)) . . ."
Section 8 (c) (2), p. 591, provides in part:
"Any employing unit for which services that do not constitute employment as defined in this act. . . ."
Section 19, p. 609:
"As used in this act, unless the context clearly requires otherwise: . . .
"(d) `Contributions' means the money payments to the state unemployment compensation fund required by this act. . . .
"(g) (1) `Employment,' subject to the other provisions in this subsection, means service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied. . . .
"(g) (6) The term `employment' shall not include:
"(i) Agricultural labor; . . . *Page 614
"(m) `Wages' means remuneration payable by employers for employment. . . ."
Chapter 214 of the Laws of 1939, p. 818, changed the original act in the following particulars:
Section 5, p. 830, amending § 7 of the 1937 act:
"Section 7. (a) Payment.
"(1) On and after January 1, 1937, contributions shall accrue and become payable by each employer for each calendar year in which he is subject to this act, with respect to wages payable for employment (as defined in section 19 (g)) . . .
"(b) Rate of Contribution. Each employer shall pay contributions equal to the following percentages of wages payable by him with respect to employment: . . ."
Section 16, p. 853, amending § 19 of chapter 162 of the Laws of 1937:
"As used in this act, unless the context clearly requires otherwise: . . .
"(d) `Contributions' means the money payments to the state unemployment compensation fund required by this act. . . .
"(g) (1) `Employment,' subject to the other provisions in this sub-section, means service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied. . . .
"(6) The term `employment' shall not include:
"(i) Agricultural labor; (services customarily performed by a farm hand on a farm for the owner or tenant of a farm). . . .
"(m) `Wages' means the first three thousand dollars of remuneration payable by one employer to an individual worker for employment. . . ."
It was the evident intent of the legislature to relieve those engaged in agricultural pursuits from paying the taxes provided by the act. Our state and Federal governments for many years have followed a studied plan of exempting farmers from the provisions of many *Page 615 laws which apply to other occupations. It was in furtherance of this plan that our legislature exempted agricultural labor from the provisions of the unemployment compensation act.
Turning now to the main question: If the services necessary for the preparation of fruit for market are agricultural labor when performed on a farm for the farmer, are those identical services still agricultural labor when accomplished for that same farmer in a warehouse by an independent contractor? To prove that the answer is in the affirmative and that the legislature did not intend to create the distinction between washing an apple on afarm for a farmer and washing an apple in a packing house for a farmer, my discussion will be divided into two parts: (1) an examination of the term "agriculture," and (2) an examination of the exception "agricultural labor" and its legislative definition.
To show that the proposition established by the demurrer is true as a general rule of law, a search of the authorities reveals that the term "agriculture" has acquired not only a comprehensive meaning, but also a certain definite classification. Accordingly, the authorities indicate that while all farming is agriculture, not all agriculture is farming.
2 Am. Jur. 395, § 2, says:
"Agriculture, in the broad and commonly accepted sense, may be defined as the science or art of cultivating the soil and its fruits, especially in large areas or fields, and the rearing, feeding, and management of livestock thereon, including everyprocess and step necessary and incident to the completion ofproducts therefrom for consumption or market and the incidental turning of them to account. The term is broader in meaning than`farming;' and while it includes the preparation of soil, the planting of seeds, the raising and harvesting of crops, and all their incidents, it also includes gardening, horticulture, viticulture, dairying, *Page 616 poultry, and bee raising, and more recently, `ranching.'" (Italics mine.)
An elaborate definition is also found in Keeney v. Beasman,169 Md. 582, 586, 182 A. 566, 568, 103 A.L.R. 1515:
"Literally, agri cultura means the tillage or cultivation of the soil. But, like many words compounded of different elements, it has a meaning of its own broader than that of its elements considered separately, for from time immemorial it has been regarded as synonymous with husbandry, and includes, not only the cultivation of the soil and the raising of crops, but also `gathering in the crops and raising live stock' (Oxford Dictionary), and, as a natural concomitant of those activities,marketing the products of the soil, the increase and the products yielded by the stock, such as wool and milk. That has been so from the earliest times." (Italics mine.)
Again, in Robinson v. Lytle, 276 Ky. 397, 400,124 S.W.2d 78, 80, the court collected several definitions:
"Since `agricultural pursuit' has been held to `include every process and step taken and necessary to the completion of a finished farm product' (Cook v. Massey, 38 Idaho 264,220 P. 1088, 1091, 35 A.L.R. 200), and `"agriculture" covers all things ordinarily done by the farmer and his servants incidental to the carrying on of his branch of industry' (Warner v. Longstreth,108 Pa. Super. 124, 164 A. 806), and `"Agricultural laborers" [is] a term broader and more comprehensive than "farm laborers";'(Davis v. Industrial Commission of Utah, 59 Utah 607,206 P. 267, 269), it can be readily seen that the boundary extends further in some cases than in others, and that "agriculture" is the broadest exclusion. In Keefover v. Vasey, 112 Neb. 424,199 N.W. 799, 35 A.L.R. 191, the court said [page 801]:
"`There is some discussion . . . upon a supposed distinctionbetween one engaged in agricultural pursuits and one engaged infarm labor. Such a distinction doubtless exists in the sense thatone who is engaged in the pursuit of agriculture may notnecessarily *Page 617 be a farm laborer, but it is quite evident that every farmlaborer is engaged in an agricultural pursuit. . . .'" (Italics mine.)
Finally, in United States v. Turner Turpentine Co.,111 F.2d 400, 404, the court, in discussing the term "agricultural labor" under the social security act, the prototype of ours, remarked:
"When then, Congress in passing an act like the Social Security Act, uses, in laying down a broad general policy of exclusion, a term of as general import as `agricultural labor', it must be considered that it used the term in a sense and intended it to have a meaning wide enough and broad enough to cover and embrace agricultural labor of any and every kind, as that term is understood in the various sections of the United States where the act operates. This does not mean of course, that a mere local custom which is in the face of the meaning of a general term used in an act, may be read into the act to vary its terms. It does mean, however, that when a word or term intended to have general application in an activity as broad as agriculture, has a wide meaning, it must be interpreted broadly enough to embrace in it all the kinds and forms of agriculture practiced where it operates, that its generality reasonably extends to."
From the foregoing authorities, therefore, it may be stated that the word "agriculture" is very broad in scope, that "farming" is a species of the general term "agriculture," and that the preparation of fruit on a farm for market is agricultural labor.
Supposing fruit preparation work is done in a packing house, as in the instant case, would this transfer in work-place correspondingly change the label "agricultural labor" to something else? The majority bases its decision upon the wording of § 19 (g) (6), which states that "services customarily performed by a farm hand on a farm for the owner or tenant of a farm" shall not be termed employment. In stating its conclusion, the majority says: *Page 618
"We are further of the opinion that by Laws of 1939, chapter 214, p. 857, § 16 (g) (6) (i), the legislature, by stating `Agricultural labor; (services customarily performed by a farm hand on a farm for the owner or tenant of a farm),' indicated in no uncertain terms that the term `agricultural labor,' as used in the 1939 act, includes only labor performed on a farm, by a farm hand, for the owner or tenant of the farm, and that this was an interpretation of the meaning of the term `agricultural labor,' as used in the 1937 act." (Italics mine.)
Clearly, the statement in the act refers to the kind or character of the work performed and not to the place of its performance.
The important question is, What is the character or nature of the work? I interpret the language in the statute as words describing "services customarily performed." Hence, instead of the act referring to the place of performance, it merely describes the type of service — the nature of the work — coming within the term "agricultural labor." The prepositional phrase "on a farm" adds merely to the general description of the nature of the services. The legislature did not intend that the statute should define agricultural labor in a limited or confined sense, especially when it employed the comprehensive term "agricultural," and used the indefinite article "a" rather than the definite article "the."
"`The' is the word used before nouns, with a specifying or particularizing effect, opposed to the indefinite or generalizing force of `a' or `an'. United States v. Hudson, 65 F. 68, 71." 1 Words and Phrases (Perm. Ed.), 1.
Thus, the language should not be interpreted either to confine the performance to a specific area or to a certain person. On the contrary, it should be interpreted as creating a general test and standard, a standard which describes the various services according *Page 619 to the nature of the work. Read from this perspective, the interpretation will then coincide with the comprehensive term it explains.
Perhaps my conception of the erroneous holding by the majority may appear more obvious by aid of the following illustration. Under the involved section, three factual situations, on the whole, are possible. First, a farmer may employ A, B, and C to prepare his fruit for market; the work is done on the farm. To the majority, this is the only case where workers are exempt. Second, the farmer may engage an independent contractor to prepare the fruit. The contractor, depending on the circumstances, may perform the work on the farm or at his establishment. For this situation, let us assume that the contractor and his employees, A, B, and C render the services on the farm. That A, B, and C are then agricultural laborers is established by the following authorities: Lowe v. Workmen'sCompensation Bureau, 66 N.D. 246, 264 N.W. 837, 107 A.L.R. 973;Jones v. Industrial Commission of Utah, 55 Utah 489,187 P. 833; Baldwin v. Roby, 54 Wyo. 439, 93 P.2d 940. In the third situation, the farmer contracts with the contractor for the preparation of the fruit. But since the contractor can do the work more economically and more conveniently at his establishment, the fruit is taken there.
That the legislature intended to discriminate between situation (1) and situation (3), or even between situation (2) and situation (3), seems impossible, especially on a basis such as place of performance. I can discern no reason, therefore, for holding that, because a number of fruit farmers cause a co-operative to be organized to facilitate marketing, they should be subject to the terms of a statute which concededly would not apply to the labor employed by them acting individually, or by other persons employed in the same *Page 620 activity, who are not members of such an organization.
Recalling the question in the case at bar again, where services (preparation of fruit for market) rendered to a farmer on his farm (situations (1) and (2)) are classed agricultural labor, does the fact that these same services (preparation of fruit for market) are performed off the farm (situation (3)) change this label of the labor from agricultural to something else? The answer is, the services remain exactly the same.
Unfortunately, there is not only a dearth of cases presenting factual situations similar to the one at bar, but also a decided conflict in these. I believe, however, that the reasoning expressed in Bucher v. American Fruit Growers Co., 107 Pa. Super. 399,168 A. 33, is much sounder than that of NorthWhittier Heights Citrus Ass'n v. National Labor Relations Board,109 F.2d 76, the majority's principal case, which was based to a certain extent upon an Oregon unreported circuit court case. In the Bucher case, claimant prosecuted an appeal under the workmen's compensation act. The company, owner of a number of farms set out in apple orchards, employed claimant to haul barreled apples in his truck. Claimant loaded barreled apples upon his truck at the company's packing shed, hauled them to the railway station, aided in placing them in railway cars, and occasionally assisted in "running apples" into barrels. While returning from a haul, claimant had a collision, sustaining injuries. Subsequently, he filed his compensation application. The act exempted persons who, at the time of the injury, were engaged in agricultural services.
In upholding the employer's defense that claimant was engaged in agriculture and therefore excluded from the act, the court said:
"We think the legislature used the words `agricultural workers' and the phrase `engaged in agriculture' *Page 621 in their comprehensive, usual and commonly accepted sense; there is nothing in the act or in its title indicative of an intention to distinguish grain growers and their employes from fruit or vegetable growers and their employed laborers. The following excerpts from the opinion in the court below are adopted: `The question raised is whether or not the word "agriculture" legally construed would include fruit growing, — the care, maintenance and cultivation of orchards and the harvesting, storage and shipping of the fruit raised therein. Agriculture as defined by Webster is the "art or science of cultivating the ground, especially in fields or in large quantities, including the preparation of the soil, planting of seeds, the raising and harvesting of crops and the rearing, feeding and management of livestock." In Funk Wagnall's dictionary agriculture is defined as "a science that treats of the cultivation of the soil," and under this definition it is stated "agriculture as a generic term includes at once the science or art and process of supplying human wants by raising products of the soil and by associated industries.
"`It is contended by the claimant that fruit growing is horticulture, an occupation distinct from agriculture and not included therein. But the dictionary definition of horticulture is "the department of the science of agriculture which relates to the cultivation of gardens or orchards, including the care of vegetables, fruit, flowers, and ornamental shrubs and trees." In common parlance it is unquestioned that agriculture would be considered as including fruit growing. If it is correct that horticulture is one department of agriculture, then agriculture must include horticulture. [See also 2 Corpus Juris, 988,] The occupations of growing fruit and of raising other crops are so allied to each other and the character and condition of labor required so identical in each case that we can see every reason why a laborer in fruit growing should be treated and classified in the same way under this Act of Assembly as a laborer on a farm which grew crops other than fruit. Of course the storage and marketing of the crop raised whether it be fruit or grain, is just as much the work of agriculture as is the planting and *Page 622 cultivation thereof, or any other labor engaged in for the purpose of furthering, as a main or an incidental purpose, the cultivation of the ground or raising of crops. We are convinced that the defendant as a fruit grower was engaged in agriculture, and that the claimant in helping the defendant for compensation to harvest and deliver for shipment or storage the crop of apples obtained from the orchards of the defendant, was engaged in the pursuit of agriculture.'"
Again, in Big Wood Canal Co. v. Unemployment CompensationDivision, 61 Idaho 247, 100 P.2d 49, the canal company, a mutual nonprofit corporation engaged in operating an irrigation system serving some nine hundred farmers, claimed a refund from the unemployment compensation division because the service performed by its employees was "agricultural labor" as defined by the act. In allowing the refund to the employer canal company, the court made this observation:
"The fact, that the reservoirs or impounding works are many miles distant from the farms to which the water belongs and is delivered through intervening canals, renders the labor necessary for its storage and delivery no less `agricultural labor.' The farmer who goes to the warehouse 20 miles away for a load of fertilizer, or a load of seed, does not by those acts lose his character or designation as a farmer or one engaged in `agricultural labor.' The fact, that the Big Wood Canal Co. employs and pays the men who tend and maintain the reservoirs and canals, and measure and deliver the water to the farmers, renders them no less laborers in the interest and field of agriculture, since the entire maintenance and operating expense is charged up to and prorated among the various farms and tracts of land to which the water is delivered as an appurtenance. [Citing cases] The Big Wood Canal Co. is not a profit-making corporation; it is merely a medium or instrumentality created to represent the farmers owning water rights from the reservoirs and is doing for them what each one cannot do alone for himself." *Page 623
That the test in these cases is not place of performance, but the character and nature of the performance, is clearly illustrated by Davis v. Industrial Commission of Utah, 59 Utah 607,206 P. 267. Claimant was engaged by a farmer to herd sheep on the public domain. His claim for injuries was denied on the ground that the Utah industrial act excepted agricultural labor. In upholding denial of compensation, the court stated:
"The applicant for compensation herded sheep for his employer on the public domain. If he was an agricultural laborer when herding on the owner's ranch, the fact that the sheep were herded elsewhere would not remove him from this class of labor. If raising stock on a small farm is agriculture, raising stock on a large ranch is the same; and if raising and caring for sheep on the owner's premises is agriculture, the laborer's avocation is not changed by the sheep being pastured and herded elsewhere, whether on the public domain or not."
With regard to the majority's cases of Park Floral Co. v.Industrial Commission, 104 Colo. 350, 91 P.2d 492, and GreatWestern Mushroom Co. v. Industrial Commission, 103 Colo. 39,82 P.2d 751, the court in Industrial Commission v. United FruitGrowers Ass'n, 106 Colo. 223, 103 P.2d 15, had this to say:
"It is certain that the products involved herein are purely agricultural in character and were produced under ordinary field operations on fruit farms and orchards. Thus the decisions inGreat Western Mushroom Co. v. Industrial Commission,103 Colo. 39, 82 P.2d 751, and Park Floral Co. v. IndustrialCommission, 104 Colo. 350, 91 P.2d 492, wherein the products involved were `specially cultivated under artificial structures or diggings,' and not `produced under ordinary field operations,' are in no manner applicable in the case at bar."
Because I feel that the legislature intended that the true test was the nature of the services performed *Page 624 rather than the place where they were performed, and because I believe that appellants' employees come within the exemption of "agricultural labor," I dissent.
ROBINSON, C.J., concurs with SIMPSON, J.