(concurring). I agree in the result but not with the means by which it was attained. The minimum wage law prior to 1959 did not bestow upon the commissioner the authority to define by regulation “executive, administrative or professional capacity.”1 Without such authority he usurped legislative power. So much of mandatory order 7B as was held to be applicable to Shell station managers should have been held invalid. Also, the line of demarcation in the order between an exempt and nonexempt executive seems tenuous and capricious. When business is good and the manager earns $75 or more a week, he is a bona fide executive and is not subject to the minimum wage law, but if one of our New England snowstorms so interferes *287with, business that he earns but $74.99 the next week, he loses his status as a bona fide executive though the only difference in the nature of his duties was the lack of exercise for his fingers in ringing up the cash register. Regulations should be expected to at least make sense.
I concur in the result only because the trial court concluded upon the facts that the managers were not employed by Shell in a bona fide executive or administrative capacity. That conclusion had abundant support, not the least item of which was the fact that 90 per cent of their duties consisted of pumping gas, changing oil and doing the other routine work of a gasoline station attendant. I suspect that the other 10 per cent consisted in getting permission from Shell to do the things that a bona fide executive could have done normally upon his own authority.
By Publie Acts 1959, No. 683, § 1, the clause in § 31-58 (f) with which we are concerned was amended to read “an individual employed in a bona fide executive, administrative or professional capacity as defined in the regulations of the labor commissioner.”