understood by the common run of men. See Haynie v. Hogue Lumber & Supply Co. of Gulfport, Inc., 1951, D.C.S.D.Miss., 96 F.Supp. 214.
I am fully aware of the extreme liberality of the courts in the interpretation of this Act, and with this approach I am in complete accord. However, I do not think that in the interpretation of the Act the courts should lend themselves to a twisted and distorted concept of the meaning of plain and ordinary words as they are used in the exemption allowed by the Act.
According to the testimony in this case, not merely 75% But 100% Of the annual dollar volume of sales of goods or services were not for resale and, as we have found, were recognized as retail sales or services in this particular industry.
In the Miller case, supra, the Supreme Court of Pennsylvania held that a licensed optometrist, who purchases the glasses he prescribes for his patients from manufacturing opticians, adds their cost in his bill for professional services, and whose total charge includes a profit on the glasses thus purchased and sold to his patients, is a retail dealer within the meaning of the Mercantile License Tax Act of May 2, 1899, P.L. 184, as amended, to the extent that he sells such glasses; that the sale of the glasses was not a part of the professional services of an optometrist. The Court indicated that it was not impressed that an optometrist who sells glasses and mountings is in the position of a dentist who sells bridgework, or of a doctor who supplies medicine to his patient, and noted that the Commonwealth had very correctly not attempted to collect the mercantile tax in those instances; that the making of the bridgework by the dentist constituted a large part of the personal work of a dentist involving scientific work, labor and design; that the furnishing of medicine to a patient by a medical doctor is an inherent part of a physician's professional services in the treatment of sickness and disease. The Commonwealth of Pennsylvania makes no distinction in the case of the doctor as to whether his prescribed dosage is administered orally or hypodermically. Certainly, the dosage is consumed. By the same token the lotions, fluids and similar articles used by the hair stylist are just as effectually consumed as is the dosage administered hypodermically by the doctor.
As the Court well stated in Haynie, supra, 'The essential distinction between a wholesaler and a retailer is that the person buying from a retailer is the ultimate user or consumer of the article or commodity and does not sell it again, whereas the one buying from a wholesaler buys only for the purpose of selling the article again.' (96 F.Supp. 216).
The Government cites Arnold v. Ben Kanowsky, Inc., 1960, 361 U.S. 388, 80 S. Ct. 453, 4 L. Ed. 2d 393, as having a bearing on the instant case. I think it is clearly distinguishable. In this case the defendant made phenolic aircraft parts for use in manufacturing aircraft subassemblies. Kanowsky's interstate commerce customers incorporated them into aircraft or parts thereof which they in turn sold to others. The Court of Appeals held that the sales of phenolic and phenolic parts were not for resale. The Supreme Court held this was error, that the 'sales indisputably were made with the expectation that the parts would be incorporated in aircraft and that the aircraft would be sold. Such transactions are clearly within the concept of resale.' In a sense the phenolic product was consumed but by the process of consumption it underwent a transformation or became part and parcel of something else which became a commodity for sale.
Consumption or loss of identity by themselves are not the sine qua non. In the instant case, the articles in question not only were consumed and lost their identity but they did not, as in Arnold v. Kanowsky, supra, become attached to something else and in that unified condition become an article of commerce.
For the reasons above stated, I conclude that defendant's establishment is exempt from the minimum wage and hour provisions of the Fair Labor Standards Act of 1938, as amended. An Order in accordance herewith will be entered.