fact is the essential key to the problem presented by this case. It serves to make clear the inapplicability of § 13 (a) (2) to petitioner's warehouse and central office employees.

Section 13 (a) (2) by its very terms exempts only those employees engaged in a retail or service establishment operating primarily in local commerce. Petitioner claims that its retail stores, warehouse and central office together constitute a "retail establishment" within the meaning of this exemption. The lack of merit in this claim is obvious. Even if, as petitioner urges, the word "establishment" referred to an entire business or enterprise, the combined retail-wholesale nature of petitioner's interstate business would prevent it from properly being classified as a local "retail establishment." But if, as we believe, Congress used the word "establishment" as it is normally used in business and in government -as meaning a distinct physical place of business-petitioner's enterprise is composed of 49 retail establishments and a single wholesale establishment. Since the employees in question work in the wholesale establishment, § 13 (a) (2) is plainly irrelevant.

Moreover, it is quite apparent from the sparse legislative history of § 13 (a) (2) that Congress did not intend to exempt as a "retail establishment" the warehouse

Prior to the adoption of the Fair Labor Standards Act the term "establishment" was used in the sense of physical place of business by many census reports, business analyses, administrative regulations, and state taxing and regulatory statutes. As applied to chain store systems, "establishment" thus described each unit in the chain. For example, under the N. R. A. Codes of Fair Competition, prepared by committees from the industries concerned, retail stores of a grocery chain were subject to the Retail Food and Grocery Trade Code, while the chain store warehouses and central offices were treated as separate "establishments" subject to the Wholesale Food and Grocery Trade Code. See N. R. A. Codes of Fair Competition, Vol. IV, pp. 460-1, 470, and Vol. V, pp. 5-6, 13-14.

and central office of an interstate chain store system. From the standpoint of its legislative ancestry, § 13 (a) (2) is the offspring of a manifest desire to exclude from the scope of the Act "business in the several States that is of a purely local nature." Sen. Rep. 884, 75th Cong., 1st Sess., p. 5. Congress was interested in exempting those regularly engaged in local retailing activities and those employed by small local retail establishments, epitomized by the corner grocery, the drug store and the department store. It felt that retail concerns of this nature do not sufficiently influence the stream of interstate commerce to warrant imposing the wage and hour requirements on them. Ibid. p. 5. Section 13 (a) (2) is a part of the Act only because of the fear that § 13 (a) (1), in exempting employees regularly engaged in a "local retailing capacity," did not clearly exclude those employed by local retailers who are situated near state lines and who make occasional interstate sales. Walling v. Jacksonville Paper Co., 317 U. S. 564, 571.

Here petitioner's warehouse and central office employees are performing wholesale duties in the very midst of the stream of interstate commerce. They constantly deal with both incoming and outgoing interstate ship

The original language of § 13 (a) (2), introduced as an amendment by Representative Celler, applied to any retail "industry." Representative Celler stated that if the amendment were accepted "retail dry goods, retail butchering, grocers, retail clothing stores, department stores will all be exempt." Several other Congressmen expressed their desire to assure the exemption of "the corner grocery store man or the filling station man" and "the local groceryman, druggist, clothing store, meat dealer-any merchant in fact." 83 Cong. Rec. 7299, 7436-7438. The exemption as it finally emerged from the joint House-Senate conference committee applied to any retail "establishment" rather than "industry." The use of the word "establishment" is more appropriate to the small local retailers which Congress had in mind and clearly indicates that Congress meant by it something less or different than "industry" or "enterprise."

ments. Such tasks are completely unlike those pursued by employees of the small local retailers, who were the sole concern of Congress in § 13 (a) (2). These duties, rather, are economically, functionally and physically like those of the independent wholesaler's employees who, when engaged in interstate commerce, are admittedly entitled to the benefits of the Act. We fail to perceive in § 13 (a) (2) or in its Congressional background any intent to discriminate against chain store employees engaged in wholesale activities or to give to chain store warehouses a competitive advantage in labor costs over independent wholesalers.

We are thus unable to say that the warehouse and central office employees of petitioner's interstate chain store system plainly and unmistakably fall within either the terms or the spirit of the exemption specified in § 13 (a) (2). Economic facts, legal principles and consistent and thorough administrative interpretation of the exemption all compel the conclusion that § 13 (a) (2) is not applicable to the facts of this case. We therefore affirm the judgment of the court below.

8

Affirmed.

The CHIEF JUSTICE, MR. JUSTICE FRANKFURTER and MR. JUSTICE JACKSON concur in the result.

MR. JUSTICE ROBERTS dissents.

8 See Interpretative Bulletin No. 6, United States Department of Labor, Wage and Hour Division, originally issued in December, 1938, and revised in June, 1941. See also First Annual Report of the Administrator of the Wage and Hour Division, United States Department of Labor (1940), p. 21, informing Congress that "each physically separated store of a chain of stores will be considered a separate 'retail establishment.' The warehouses and central executive offices of the chain are not 'retail establishments.'"

Opinion of the Court.

UNITED STATES v. WILLOW RIVER POWER CO.

CERTIORARI TO THE COURT OF CLAIMS.

No. 312. Argued February 8, 9, 1945.-Decided March 26, 1945.

1. An owner of a dam and hydroelectric plant near the confluence of navigable and non-navigable streams, and embracing lands riparian to the navigable stream, is not entitled under the Fifth Amendment to compensation from the United States for a reduction in the generating capacity of the plant, which resulted from an authorized navigation improvement that raised the level of the water of the navigable stream above ordinary high-water mark. United States v. Cress, 243 U. S. 316, distinguished. Pp. 504, 506.

2. The resulting damage to the riparian owner in this case did not constitute such a taking of property as is required by the Fifth Amendment to be compensated. P. 510.

101 Ct. Cls. 222, reversed.

CERTIORARI, 323 U. S. 694, to review a judgment for the plaintiff in a suit against the United States to recover compensation for an alleged taking of property.

Mr. Paul A. Freund, with whom Solicitor General Fahy, Assistant Attorney General Shea and Miss Cecelia H. Goetz were on the brief, for the United States.

Mr. R. M. Rieser, with whom Mr. John Wattawa was on the brief, for respondent.

MR. JUSTICE JACKSON delivered the opinion of the Court.

The Willow River Power Company has been awarded $25,000 by the Court of Claims as just compensation for impaired efficiency of its hydroelectric plant caused by the action of the United States in raising the water level of the St. Croix River. Reality of damage and reasonableness of the award are not in issue. Our question is

whether the damage is the result of a "taking" of private property, for which just compensation is required by the Fifth Amendment.

Willow River in its natural state was a non-navigable stream, which flowed to within a few rods of the St. Croix River, turned and roughly paralleled it for something less than a mile, and then emptied into the St. Croix. Many years ago an earth dam was thrown across the Willow about a half-mile above its natural mouth. A new mouth was cut across the narrow neck which separated the two rivers and a dam was built across the artificial channel close to or upon the banks of the St. Croix. Here also was built a mill, which operated under the head produced in the pool by the two dams, which obstructed both the natural and the artificial channel of the Willow River.

These lands and appurtenant rights were acquired by the Willow River Power Company, a public utility corporation of the State of Wisconsin, and were devoted to hydroelectric generation for supply of the neighborhood. The plant was the lowest of four on Willow River operated by the Company as an integrated system. The powerhouse was located on land owned by the Company above ordinary high water of the St. Croix. Mechanical energy for generation of electrical energy was developed by water in falling from the artificial level of non-navigable Willow River to the natural level of navigable St. Croix River. The elevation of the head water when at the crest of the gates was 689 feet above mean sea level. The operating head varied because elevation of the tail water was governed by the fluctuating level of the St. Croix. When that river was low, the maximum head was developed, and was 22.5 feet; when the river was at flood stage, the operating head diminished to as little as eight feet. The ordinary high-water mark is found to have been 672 feet, and the head available above that was seventeen feet.