Anderson

A place called Darwin, less than 150 population, lies in the Mojave desert in California, and may be likened to a trading post for those who are engaged directly and indirectly in the mining industry of the Anaconda Copper Mining Company whose “Darwin Mine” is located about a mile from the town and is operated in two shifts under approximately 250 employees. The product moves in interstate commerce. The business part of the town consists of a post office, an automobile service station, a small short-order lunch counter, a small sandwich and chili lunch place, and a grocery store. The sandwich shop opens at 10:00 a. m., but is closed Thursdays Saturdays, and Sundays. A paved highway, connects the town with Keeler, population 150, twenty-odd miles away; Olancha, population 200, about 35 miles away; Panamint Springs, population 12, *640 about 15 miles away; and Lone Pine, population about 1500, around 40 miles away. There are meager accommodations at each of these places. There is no public passenger service in or out of the town. There are no privately operated rooming houses in Darwin, and no public dining places other than the lunch places mentioned. Anaconda owns some house…

(dissenting).

This case should have been affirmed or at most remanded for further findings of fact.

The majority have made two vital and essential findings without which the conclusion reached cannot be supported:

The first finding is a pillar which must be present to uphold the judgment this Court directs to be entered. The second is no less essential under § 13(a) (2) of the Fair Labor Standards Act, 29 U.S. C.A. § 213(a) (2). The writer expresses no opinion on these postulated facts, except to say that the trial court did not make them and that there is conflicting evidence. But the authority of this Court does not extend to making findings of fact.

The trial court did make pertinent findings which are not held clearly erroneous but the effect of which is avoided by the suggestion that, on the record as a whole, another result must be reached. But, if this be true, the case should be sent for reconsideration and new findings. The findings of fact of the trial court, which seem supported by almost uncontroverted evidence, are set out in the margin.

*644 The majority opinion uses the phrase that the facilities are “reasonably needed,” instead of the statutory text which…

On Rehearing.

The petition for rehearing is denied. We append the following citations of pertinent decisions:

Mitchell v. Joyce Agency, 348 U.S. 945 , 75 S.Ct. 436 , 99 L.Ed. 740 ; Mitchell v. C. W. Vollmer & Co., 349 U.S. 427 , 75 S.Ct. 860 , 99 L.Ed. 1196 ; Maneja v. Waialua Agricultural Co., 349 U.S. 254 , 75 S.Ct. 719 , 99 L.Ed. 1040 ; Alstate Construction Co. v. Durkin, 345 U.S. 13 , 73 S.Ct. 565 , 97 L.Ed. 745 ; Mitchell v. King Packing Co., 350 U.S. 260 , 76 S.Ct. 337 , rehearing denied 350 U.S. 983 , 76 S.Ct. 466 ; Steiner v. Mitchell, 350 U.S. 247 , 76 S.Ct. 330 ; Mitchell v. Budd Tobacco Co. and King Edward Tobacco Co., 350 U.S. 473 , 76 S.Ct. 527 .

See, also, Mitchell v. Myrtle Grove Packing Co., 350 U.S. 891 , 76 S.Ct. 148 ; General Electric Co. v. Porter, 9 Cir., 208 F.2d 805 , 44 A.L.R.2d 854 , certiorari denied 347 U.S. 951 , 74 S.Ct. 676 , 98 L.Ed. 1097 ; Tobin v. Ramey, 5 Cir., 205 F.2d 606 ; 6 Cir., 206 F.2d 505 , certiorari denied sub nom. Hughes Constr. Co. v. Mitchell, 346 U.S. 925 , 74 S.Ct. 310 , 98 L.Ed. 418 ; Durkin v. Fisher, 7 Cir., 204 F.2d 930 , certiorari denied sub nom. Fisher v. Durkin, 346 U.S. 897 , 74 S.Ct. 220 , 98 L.Ed. 398 ; Stewart-Jordan…