(dissenting).
As I construe the majority opinion, it is predicated on the theory that the stipulation of fact with respect to work in excess of 40 hours did not relate to the time between January 25, 1950, when the new regulation went into effect, and March 7, 1950, the date of trial. It is then argued that since there was no evidence introduced as to hours of work during that period and since there is a presumption of lawful conduct, the presumption must be that there was no violation with respect to excess workage during this period. With this I cannot agree. This was not in my view the theory upon which the case was tried and decided in the lower court, nor was it the theory upon which it was presented to us. The case was tried upon the theory that the questioned employees were executives and were being paid the minimum amount required by the regulation for executives. Nowhere is there a contention or intimation that there was a change in the work, hours after January 25.
In Finding No. 3 the trial court found the time involved as extending to March 7, 1950. The court found that “During the periods hereinafter stated” the employees in question were foremen as follows: “Elevator Department. Archie Hatcher — Elevator Foreman — December, 1946, to date of trial, March 7, 1950. Mill Department. Frederick Honeywell — Second Miller — January 18, 1946, to date of trial, March 7, 1950.” In its Finding No. 10, the court found that “ * * * all of the aforesaid employees worked more than forty (40) hours in certain of the work-weeks in the periods of time involved * * * ”, Having in Finding No. 3 fixed the period of time involved as ending March 7, 1950, it seems to me that the presumption must be that this was the period of time the trial court had in mind when it found that during that time the employees worked in excess of 40 hours per week.
Appellee’s brief will be searched in vain to find that it was contending that there was a change in work time after January, 1950, or that it relied on a presumption of compliance with the new regulation during that period of time. It does object to a consideration of the period of time between January 25 and March 7, but only because of the minimum salary requirement as to executives, which was increased under the new regulation. Thus it states in its brief: “The administrator is concerned with only two things in, his brief. He is concerned (1) with the forty-one days between January 25, 1950, and the time of trial. He is concerned (2) with that portion of Honeywell’s $55.00 weekly salary during those *288forty-one days above $42.70 per week, which portion was contributed by the Government as the result of the on-the-job training program.” Appellee then argues that the salary requirement of $55.00 per week during this period of time should not be considered and then states: “But, even if the Government’s contribution be disregarded, it still does not help appellant. This is because the payment involves a period of time not in issue in this law suit, the forty-one days before trial. The reference to •wages after January 25, 1950, in the Findings can„be regarded as surplusage.” From this statement, it clearly appears that the court did consider the period of time from January 25 to March 7 as part of the time involved and that during that time excess hours were worked. Appellee says in its brief that this should be disregarded as surplusage. In all of this the emphasis is merely upon the wages and nowhere is there an intimation that there was a change in hours of employment.
It is thus clear to me that the case was tried upon the assumption by all parties, including the court, that throughout the entire period up to March 7, 1950, excess hours were worked. The court pitched its decision squarely on the ground that these two employees were executives and that the limitation as to hours did not apply to them.
I fail to find any substantial evidence supporting the court’s finding that Hatcher customarily and regularly directed the work of more than one other employee. This not only appears from his own testimony, but is made clear by the testimony of Jackman, Assistant to the General Manager of appel-lee’s mill at Wichita. He was Manager of the Cherryvale mill until October, 1947. He testified positively that for six or seven months of the year Hatcher had only one man under him in the grain elevator. This does not constitute such customary or regular direction of the work of other employees as is contemplated by the regulations. It seems to me that it may also fairly be stated that Honeywell’s own testimony reveals that he did not ordinarily and customarily have other employees under his supervision, although in his case there is no such positive testimony as in the case of Hatcher. It is without dispute that after January 25, 1950, the salary paid him by appellee did not equal $55.00 per week. That sum could be reached only by adding to the salary paid him by the company the subsistence the Government paid him for on-the-job training under the G.I. Bill of Rights. Veterans’ subsistence pay is granted so they may go to school and fit themselves for a particular calling or employment — in this case, the position of a miller. The company did not consider Honeywell qualified to hold the position of a miller. It refused to pay him the minimum salary for such á position. It employed him as an apprentice miller. An apprentice is one who works while studying to fit himself for a particular position. Appellee stresses the responsibilities of a miller, the great amount of discretion and exercise of judgment that go with the position. When Honeywell came to appellee, he had been a truck driver. Whether he had ever seen a flour mill is questionable. It is certain that he knew nothing of the operation of a flour mill or of the work of a miller. To say that such a person is a qualified miller, possessing that rare judgment which the company stresses as necessary to the making of high grade flour, to say nothing of trusting him with management and responsibilities of the most important department of the flour mill would seem to do violence to understanding. In any event, it is sufficient to say that Hatcher and Honeywell each-without dispute lacked one of the qualifications of an administrative executive officer — Hatcher did not ordinarily have supervision of other employees and Honeywell was not paid by his employer the minimum base salary required by the regulation. The standards of the regulations have the force and effect of law. All the requirements are mandatory and must be complied with before one can fit the qualification.1 *289It is my view with respect to the period of time from January 25, 1950, to March 7, 1950, that appellee violated the act with respect to these two employees and that an injunction should have 'been granted.
. Walling v. Yeakley, 10 Cir., 140 F.2d 830; Helliwell v. Haberman, 2 Cir., 140 F.2d 833; Marchant v. Sands Taylor & Wood Co., D.C., 75 F.Supp. 783.