(dissenting).
In so far as the question whether the miners and the haulers of barite ore were employees of the respondents is a question of fact, its decision by the Board, if supported by evidence, is binding on this Court. But “the interpretation of the meaning of the statutes, as applied to jus-ticiable controversies, is exclusively a judicial function.” United States v. American Trucking Ass’ns, 310 U.S. 534, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345. And because the finding of the Board in this case, that the miners and haulers were employees of respondents, is not only without evidence in the record to support it, but requires to sustain it an interpretation of the National Labor Relations Act contrary to its evident meaning, I think the petition of the Board for enforcement should be denied.
Respondents own land in Missouri on which barite ore is found. They gave miners permission to enter upon the land to prospect for barite ore and to mine it when discovered. They granted the haulers and the miners the right to enter and remove the ore found by the miners. They exercised no control over either miners or haulers as to the details of the work permitted to be done, and they did not employ either of them, in the common and usual sense of the word employ, to do anything. They did not engage to purchase the ore produced at an agreed price, nor at any price. Under the permission granted by respondents, the miner was at liberty to mine when and where he pleased, at such times and in such manner as suited his whim or interest, using his own tools and following his own notion as to tools needed and methods of work. The haulers were free to work in the same manner as the miners, although it is a fair inference from the evidence that when the miner had ore on hand and a market for it was *591available, he requested the hauler to move it to the purchaser.
And there are pertinent provisions of the. Missouri mining laws controlling the relation between the miners and haulers and the respondents. Mo.Rev.Stat.(1939) §§ 14783-14786, Mo.R.S.A. §§ 14783-14786. The substance of these statutes may be stated briefly:
The owner of land, if willing to permit mining upon it by persons other than himself and his employees, may give notice, in the manner provided by the statute, of the terms, conditions, and requirements upon which those entering upon the land with the owner’s permission may engage in mining operations. If the terms of the statute concerning notice are complied with, those persons entering upon the land with the owner’s consent are by law bound by the terms and conditions stated in the notice.
If a landowner permits persons other than his employees to engage in mining operations on his land without giving the notice in the manner and form required by the statute, the persons entering upon the land in good faith are given the right to continue there for a period of three years, together with a right of way over and upon the land for moving the minerals mined. This right is exclusive against the owner and all claiming under him, and is continuous for the term stated unless the miner shall cease operations for more than ten days in any one calendar month, without reasonable excuse or without the consent of the owner, and upon the condition that the miner deliver to the owner, at the mine if he chooses, a royalty upon the minerals mined, the amount of the royalty to be determined by agreement between the miner and the owner, or, if not so determined, to be the same in kind and proportion as is paid or delivered by others mining the same kind of ore on the owner’s land or on adjacent lands.
The landowner is given a lien on all minerals mined to secure delivery of the royalty. The miner is given exclusive possession of all ore produced, except the royalty proportion, until he shall have been offered or paid by the landowner the highest price then being paid by the landowner to others for minerals of the same kind. The miner producing minerals and paying or delivering the royalty, may notify the landowner of the amount of ore on hand ready for delivery, and demand that the landowner take and pay for it within five days after service of the notice, at the price stated in the notice. On failure of the landowner to accept and pay for the mineral within the time stated in the notice, the miner acquires absolute title to it and may dispose of it at will.
These Missouri statutes, it will be noted, deal expressly with the relations between a landowner and those permitted to mine on the owner’s land, but who are not the owner’s employees. Their evident intent and purpose is to protect a miner producing ore on land under a license from the owner, from the consequences of arbitrary action by the owner and the possible loss by the miner of the fruits of his industry and labor. And they fix in such cases the relative rights of the parties and the character of the relation existing between them. Obviously a miner permitted to enter an owner’s land is not by the statute made an employee of the owner. The statute, by express provision, applies only when the relation of employer and employee does not exist between the miner and the owner. The miner, following such permissive entry, may, but does not necessarily, become an independent contractor in relation to the owner, as the Missouri courts have held. Woodruff v. Superior Mineral Co., 230 Mo.App. 616, 70 S.W.2d 1104, certio-rari quashed 337 Mo. 718, 85 S.W.2d 743. Without more than permissive entry and possession under the statute, the miner is properly the holder of a license coupled with an interest, certainly not an employee. Skidmore v. Haggard, 341 M,o. 837, 110 S. W.2d 726, 729; Restatement, Agency, §§ 2, 220.
It is undisputed that the respondents did not comply with the Missouri statutes concerning notice of the terms and conditions on which miners might enter their lands. Those terms and conditions were therefore fixed by the sections of the statutes controlling in the absence of notice.
The power of Missouri to fix the relative status of landowners and miners in the circumstances stated, in so far as the exercise of that power does not conflict with congressional action under the federal constitution, cannot be doubted. And Missouri interpretations of Missouri statutes are controlling. Lindsey v. Washington, 301 U. S. 397, 57 S.Ct. 797, 81 L.Ed. 1182; Midland Realty Co. v. Kansas City Power & Light Co., 300 U.S. 109, 57 S.Ct. 345, 87 L.Ed. 540. Unless, therefore, there is *592something in the National Labor Relations Act bringing the- miners and haulers within the purview of that Act, into the classification of employees of respondents, or unless there is something in the conduct of the parties changing their relative status as fixed by the permissive entry and operation under Missouri law, the Board’s holding that the miners and haulers were employees of respondent landowners cannot be sustained.
On the argument we were asked by petitioner to discard the common and long-established meanings of the words employer and employee, as used in the Na-ional Labor Relations Act, on the ground that they were “legacies from an outmoded craft economy.” But in matters of legislative policy the right to pick and choose among legacies from the past belongs to the legislature and not to the courts. And that the Congress in the National Labor Relations Act used the words according to long-established and common acceptation cannot be doubted. The right and occasional necessity for the courts, in the interpretation of- acts of the legislature, to resort to considerations of the evident legislative policy and purpose is admitted; also, that the words in acts of the legislature take meaning from their context, which may imperatively call for a restriction or an extension of their common usage. United States v. American Trucking Ass’ns, supra. But where the legislature, as in the National Labor Relations Act, with the policy and purpose of the Act in view and -for the specific purpose of removing the necessity of judicial interpretation concerning either the words or the purpose of the Act, defines the meaning of particular words, no justification can possibly be found for judicial or administrative speculation as to their meaning, under the guise of interpretation in aid of a supposed legislative policy.
The Congress was careful to define both employer and employee in the National Labor Relations Act. In both instances the definitions compel the conclusion that the words were used according to common acceptation. Employer is defined as any employer or agent’ of any employer, with exceptions not material here. Employee is defined as any employee, with exceptions also of no importance here, including-persons discharged from employment in violation of the Act. The Act is entitled a Labor Relations Act, and it deals with wages and hours of labor and conditions of employment, the purchasing power of wage earners, and with procedure for collective bargaining by workers with a view to regulations in the public interest of the employer-employee relation for the protection of interstate commerce. The National Labor Relations Board acquired no power or jurisdiction under the Act except where the relation of employer and employee existed.
Nor is there evidence in this record ■justifying the . inference that the parties themselves changed the relation fixed between them by Missouri law. The Board sought to reinforce its holding by arguments based upon certain matters developed in the evidence not relevant to the question under consideration. One of these was the fact that one of the respondent landowners, of which there were four, was engaged in the business of buying and selling the ore prpduced from respondents’ lands. It is not disputed that three of the respondents had no connection whatever with the business of buying and selling the ore. But since the respondent, so engaged, also collected the royalties and distributed them among all the landowners, the Board concluded that all landowners were engaged in the business of “operating” their lands for the production and sale of barite ore. And in reaching this conclusion the Board attached importance to the fact that the respondent who dealt in barite ore issued to the miners the written permission to enter upon the land, and included within each permit the name of a hauler. But the right of an owner of land to say who shall enter upon it is a common incident of ownership, the exercise of which has not heretofore been considered sufficient to establish the relation of employer and employee between the owner and those permitted to enter.
The Board also laid stress upon the fact that the respondent engaged in dealing in ore, sent notices to miners and haulers of the price he was willing to pay for ore and the price he was willing to pay for hauling. A copy of this notice is set out in the majority opinion of the Court. By its terms it applied not only to the miners and haulers on respondents’ land, but to all within the mining district. It is nothing more than a quotation of the prices by one in the market for ore, and certainly it is not of itself sufficient to make those who produced, hauled, and sold the ore, em*593ployees of one who purchased it. The offer was to purchase clean, dry ore. Logically under the Board’s finding, a miner who produced clean, dry ore was an employee; one whose ore was not clean and dry, was not.
The evidence establishes the fact that it was customary in the mining district involved here for the purchaser of barite ore to account to the owner for his royalty, to die hauler for his hauling charge, and to the miner for his interest. Jn the light of that prevailing custom, the notice is nothing more than a quotation of the prices for ore and a statement of the quality o.f ore which would be bought and the proportions of the price which would be paid to the hauler and to the miner. It is idle to contend that either the miner or the hauler was compelled to accept the conditions of the offer in the face of the provisions of the controlling statutes of Missouri to the contrary. If there was any compulsion upon either the miner or the hauler to accept any of the terms of the offer, it was derived, not from any right in respondents to compel acceptance, but rather from the force of unfortunate economic necessity.
One other provision of the Missouri mining law requires attention. The statute provides that all ore mined upon the lands of any person in the state shall be the absolute property of the owner of the land, except in cases where the right of ownership is modified by express contract. Mo. Rev. Slat. (1939) § 14786, Mo.R.S.A. § 14786. But this section must be construed in the light of the sections of the statute discussed above. So construed it ,is not effective to change the relative rights of miners and landowners in the situation covered by other sections. Missouri courts, with this section of the Act before them, have sustained the rights granted the miner in preceding sections. Woodruff v. Superior Mineral Co., supra.
On the facts stipulated by the parties and found by the Board, as well as because of the plain provisions of Missouri law, the finding of the Board here, that respondents operated a tract of land for the production of barite ore, and engaged miners and haulers in that operation, is wholly without evidence to sustain it. The Board’s finding tha-t the permits issued to miners are revocable at will, and that the miners and haulers received a proportion of the market price of minerals produced as wages earned in the employment of respondents, is in the very teeth of controlling Missouri statutes. The decision of the Board in this case produces a result “plainly at variance with the evident policy and purpose” of the National Labor Relations Act, and one “that is both futile and absurd.” Compare United States v. American Trucking Ass’ns, supra. If allowed to stand, it would place an owner of ore bearing lands in the business of producing ore-if he permitted others to go upon his lands to engage in that business. It would make owners employers, and licensees employees, although neither had voluntarily assumed either status and even if both objected. It would override the settled policy of a state in matters within the state’s exclusive jurisdiction. It .would bring within the purview of the Fair Labor Standards Act of 1938, as employers and employees, landowners and licensees, in the absence of any contract between them requiring the licensees to work or the landowner to pay wages. It obtains this result by giving to the words employer and employee, as used in the National Labor Relations Act, a meaning which the Congress, by careful definition, was at pains to reject.