The term ``retail'' is alien to some businesses or operations. For
example, transactions of an insurance company are not ordinarily thought
of as retail transactions. The same is true of an electric power company
selling electrical energy to private consumers. As to establishments of
such businesses, therefore, a concept of retail selling or servicing
does not exist. That it was the intent of Congress to exclude such
businesses from the term ``retail or service establishment'' is clearly
demonstrated by the legislative history of the 1949 amendments and by
the judicial construction given said term both before and after the 1949
amendments. It also should be noted from the judicial pronouncements
that a ``retail concept'' cannot be artificially created in an industry
in which there is no traditional concept of retail selling or servicing.
(95 Cong. Rec. pp. 1115, 1116, 12502, 12506, 21510, 14877, and 14889;
Mitchell v. Kentucky Finance Co., 359 U.S. 290; Phillips Co. v. Walling,
324 U.S. 490; Kirschbaum Co. v. Walling, 316 U.S. 517; Durkin v. Joyce
Agency, Inc., 110 F. Supp. 918 (N.D. Ill.) affirmed sub nom Mitchell v.
Joyce Agency, Inc., 348 U.S. 945; Goldberg v. Roberts 291 F. 2d 532 (CA-
9); Wirtz v. Idaho Sheet Metal Works, 335 F. 2d 952 (CA-9), affirmed in
383 U.S. 190; Telephone Answering Service v. Goldberg, 290 F. 2d 529
(CA-1).) It is plain, therefore, that the term ``retail or service
establishment'' as used in the Act does not encompass establishments in
industries lacking a ``retail concept''. Such establishments not having
been traditionally regarded as retail or service establishments cannot
under any circumstances qualify as a ``retail or service establishment''
within the statutory definition of the Act, since they fail to meet the
first requirement of the statutory definition. Industry usage of the
term ``retail'' is not in itself controlling in determining when
business transactions are retail sales under the Act. Judicial authority
is quite clear that there are certain goods and services which can never
be sold at retail. (Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S.
190, 202, rehearing denied 383 U.S. 963; Wirtz v. Steepleton General
Tire Company, Inc., 383 U.S. 190, 202, rehearing denied 383 U.S. 963.)
