(dissenting).
The judgment about to be affirmed awards each employee of the toll road minimum wages, overtime pay, and penalties for every work-week since the Fair Labor Standards Act went into effect, although there is no finding of fact that in all workweeks or in any one of them a substantial amount of interstate commerce was done in which any employee could have been engaged. The theory advanced is that because the road was open for general commerce it became an “instrumentality of interstate commerce” so soon as any interstate commerce was done and continued to be such so long as it was kept open, so that everyone employed about it was at all times “engaged in interstate commerce.” The district judge and the majority of this court seem to think this is required by the opinion of the Supreme Court in Overstreet v. North Shore Corporation, 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656. The district judge said: “The Supreme Court in its decision * * * left little for the trial court to do other than determine the amounts the several plaintiffs are entitled to recover. * * *. As I construe its opinion the Supreme Court held in this case that the employees engaged in operat*176ing and maintaining a privately owned toll road and bridge over navigable waters are engaged in commerce and are subject to the Fair Labor Standards Act, and that their status under the Act is not dependent upon whether the amount of interstate traffic is substantial, more or less.” Though deeming it unimportant, he found as facts that the “overwhelming majority of the automobiles * * * bear Florida license plates”; that every merchant having a place of business on the road had testified and only one had received interstate shipments and he only three of them; and the “total of interstate shipments did not exceed 14 in the period from 1938 to 1942 inclusive.” He refused to find that the use of the road for interstate commerce had been “extensive” or “substantial”, but thought it enough that it was open to such use and was so used. The majority opinion also says: “We think a careful reading of the opinion (in the Overstreet case) justifies the view that the holding is based upon the fact of interstate use rather than upon the extent of such use.”
This, I think, is a serious misunderstanding of the Overstreet decision. The sole contention there was that the employer was not the carrier of interstate commerce, and therefore, as the court states it, “their (the employees’) activities are local and at most only affect commerce.” 318 U.S. 128, 63 S.Ct. 496, 87 L.Ed. 656. There was no question as to the amount of interstate commerce done, for the petition, the court says, alleged: “The toll road constitutes an integral part of the highway system of the United States * * *. It is used extensively b.y persons and vehicles traveling between the island and points outside Florida in interstate commerce. Mail to and from other states as well as goods produced outside Florida and consigned to merchants on the island are transported over the toll road. * * * We think these allegations bring petitioners within the coverage of the Act and entitle them to recover if proved.” The Court then settled the contention made, assuming “extensive” interstate transportation actually done, and held the work of the employees was close enough to that transportation to be practically a part of it. It certainly did not say how much, of-a mixed employment must be in interstate commerce as compared with what is intrastate, in order to apply the Act; which is the present question.
If the road had been used for interstate traffic only, the rule here acted on would be correct; its employees would be engaged in such commerce all the time, whether it were great or small. But this is not an interstate road. It is not “an integral part of the highway system of the United States” and never will be. It is a dead-end country road along the north shore of the St. John’s River to Pilottown at its mouth where some river pilots live, being the village postoffice called Fort George. The population is less than 100. There is little reason for or likelihood of any interstate traffic. As has been stated, the district court found that such traffic in goods was almost nil; and the overwhelming part of the passing vehicles bore Florida license plates. There is dispute in the evidence as to how many bore foreign plates, but that a car bore a foreign plate does not, as the witnesses all say, prove that it was on an interstate trip over this road; for all Florida is full of persons temporarily there with their cars, for war work, military service, or pleasure, using their cars with foreign plates every day. There is only a possibility that some of the foreign cars passing had come direct from another State. If any were going to the fishing camps testified about, it was only in the fishing season; and if any were going to the “exclusive clubs” on the Island, the out-of-State patrons were few and only during the winter season when the clubs were open. It is hard to imagine why any interstate traveller would wish to go to Pilottown, and none is definitely shown ever to have gone there. Mere sightseers would almost certainly be on intrastate trips out of Jacksonville. The mail did pass each way once a day except Sundays, in charge of an employee of the United States who paid no toll. This was not interstate commerce in a constitutional sense, but the exercise of a governmental function under the postoffice and postroads clause of the Constitution. There is no proof that any of the mail was interstate in fact, though witnesses say some probably was. The commerce done on the intercoastal canal, facilitated by the drawbridge, has been put out of the case by settling according to the Act with Over-street and the other bridgetenders. The maintenance men did no repairs (save one time) on the drawbridge as such, but worked only on the plank surfacing which was part of the toll road and did not facilitate the canal commerce.
*177It is perfectly clear that both the toll-takers, who dealt directly with the traffic on the road, and the maintenance men who did not, but whose work was so near that traffic as to be practically a part of it, were engaged principally in intrastate commerce, with a small admixture of interstate commerce. Is that admixture, not exactly determined or determinable, sufficient to make these men “engaged in interstate commerce” under the Act? No one contends that an employee must be wholly so engaged. No one hitherto has contended that a very slight admixture of interstate commerce will suffice. The Act itself, in Section 13, 29 U.S.C.A. § 213, excluded certain employments, as agriculture, catching fish, seamen, switchboard operator in a small telephone exchange, but did not say what proportion of the employee’s time and effort must be given to the excluded activity to effect an exclusion. In only one case was attention given to a possible mixed employment, in excluding “any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce.” Sect. 13(a) (2). Preponderance is here made the test as between service in interstate and in intrastate commerce. It is a logical and reasonable test, and would afford a fair test in all mixed employments. This court, however, in Fleming, Adm’r, v. Jacksonville Paper Co., 5 Cir., 128 F.2d 395, 397, suggested that if “a substantial part” of the employee’s mixed work was in interstate commerce it was enough. That language was repeated by the Supreme Court on review of the case, 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460. That may be said to be the judicial formula. After the decision of Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, which applied the Act to the maintenance employees of the owner of a building whose tenant was using it wholly for the production of goods for commerce, the Administrator was confronted with the case of a building only partly used for such production. He applied the judicial formula of “substantial part”, and by a rule published Oct. 17, 1942, directed that 20% should be considered substantial. When he had a case of mixed employment by trolley and bus carriers, exempt under Sect. 13(a) (9), he on March 6, 1944, applied the same ratio of 20%. We therefore have the legislative suggestion of preponderance, the judicial formula of substantial part, and the administrative crystallization of 20% to choose between. But no choice need be made, because the fact-findings are that the admixture of interstate commerce done was not “extensive”, nor even “substantial”, and certainly nowhere near 20%. The district judge called it a “flow”, but the evidence shows it to be a mere trickle, and (except for the mail) seasonal and intermittent. None is proved with certainty.
The toll-takers have the larger recoveries, one for over $5,000, more than twice his agreed salary already paid. This is because their jobs were very light, an average of 125 cars passing in 24 hours, and the hours of service were long, causing much overtime. For not one of the work-weeks for which each claims and is awarded overtime pay and penalties is it proven that he in fact handled a single car travelling interstate, yet his right depends absolutely on his proving for each workweek that he was engaged in interstate commerce. All one can spell out of the evidence is that he might have been in some of the weeks so engaged to a slight extent. It seems to me that his recovery has no certain basis other than that he saw the postman pass by every day.
The telephone line is a mere makeweight, not mentioned in the Overstreet case. It is a two-wire country line costing originally about $800, and intended for use about the toll road. Some stores and fishing camps were allowed to put in ’phones and the toll-takers made their connections. Some interstate communication occurred by connecting with the Jacksonville switchboard, but weeks and months passed when there was none. The toll-takers as small switchboard operators were excluded under Sect. 13(a) (11), but no one contends that their telephone work was enough to exclude them altogether if they were otherwise engaged in interstate commerce. The road maintenance crew also kept up the telephone line, but work on it was occasional and insignificant. The line since 1942 has been operated by another company and its employees, and the line kept up by a single man. It adds nothing to this case.
The toll road also has now been turned over, to the County, because unprofitable. The County employees are not under the Act. The former employees are out of a job. The policy and purpose of the Act as declared in Section 2, 29 U.S.C.A. § 202, to improve wages without producing unemployment, has been frustrated. I think the decision is wrong in its philosophy and most unjust in its results.