Acme Engineering Co. v. Jones

• Court: Ohio Supreme Court
• Writing for the Court: STEWART, J.
• Citation: Acme Engineering Co. v. Jones, 150 Ohio St. 423, 83 N.E.2d 202 (Ohio 1948)
• Decision Date: 15 December 1948
• Docket Number: 31351.
• Parties: ACME ENGINEERING CO. v. JONES.

83 N.E.2d 202

150 Ohio St. 423

ACME ENGINEERING CO. v. JONES.

No. 31351.

Supreme Court of Ohio

December 15, 1948

Syllabus by the Court.

1. A special statutory provision which applies to a specific subject matter constitutes an exception to a general statutory provision covering other subjects as well as the specific subject matter which might otherwise be included under the general provision. State ex rel. Steller et al., Trustees v. Zangerle, Aud., 100 Ohio St. 414, 126 N.E. 413, and paragraph one of the syllabus in State ex rel. Elliott Co. v. Connar, Supt., 123 Ohio St. 310, 175 N.E. 200, approved and followed.

2. The word, 'binding,' as used in Section 1345-4, General Code, means final and conclusive.

3. An employer whose rate of contribution has been fixed by the Bureau of Unemployment Compensation and who has paid contributions based on such rate cannot have that rate redetermined and a refund of contributions in excess of those based on a new rate, unless such employer files with the administrator of the Bureau of Unemployment Compensation an application for review and redetermination of the rate within 60 days after the mailing of the notice thereof to such employer's last known address, or, in the absence of the mailing of such notice, within 60 days after the delivery of such notice.

Appeal from Court of Appeals, Franklin County.

Prior to some time in 1941, The Buckeye Aluminum Company, a corporation, hereinafter referred to as Buckeye, was engaged in the manufacture and sale of aluminum kitchenware in Wooster, Ohio. Due to wartime restrictions by the federal government it became impossible to obtain aluminum for the manufacture of aluminum ware, and in 1941 Buckeye commenced liquidation proceedings.

In October 1942, The Acme Engineering Company, an Ohio corporation, appellant herein, hereinafter designated as Acme, purchased from Buckeye, under an installment sale contract, all its assets both real and personal, including goodwill and the right to the use of the name, Buckeye. The only assets excluded from such purchase were the moneys, deposits or credits in banks accounts and bills receivable and United States and other bonds belonging to Buckeye. Thereupon Acme, in the plant and with the assets which it had purchased, commenced preparations to manufacture and ultimately did manufacture miscellaneous items which were used in World War II.

During all the time of its business operations and until it ceased doing business on October 31, 1944, Acme employed a sufficient number of employees to be an employer subject to the Ohio Unemployment Compensation Act and so was liable for pay-roll contributions to the Bureau of Unemployment Compensation, hereinafter designated the bureau. The bureau sent a letter to Acme advising it to send in a form called UCO-1, which is a report to determine liability. Acme returned the report to the bureau under date of December 18, 1942, which report was signed by J. W Moorhead and which contained, inter alia, these questions and answers:

3a. 'Give date on which operation began in Ohio. [A.] October 6, 1942.

'b. If business was acquired since January 1, 1936, give name and present address of former owner. [A.] The Buckeye Aluminum Company, liquidated in 1941.

* * *

* * *

'Remarks: This plant is just being organized and has not started production yet.'

Under date of January 1943, Acme was advised by the bureau that its rate of contribution for 1942 was two and seven-tenths per cent. Also in January 1943, Acme was advised by the bureau that its rate for 1943 was two and seven-tenths per cent, and in January 1944, Acme was advised by the bureau that its rate for 1944 was two and seven-tenths per cent.

It was agreed that Acme paid into the bureau the correct amounts of money as determined by the rates so established, and it is conceded that Acme raised no objection to these rates nor asked for any refund until November 1944.

Buckeye, from whom Acme purchased its property and assets, was an employer subject to the Ohio Unemployment Compensation Act, and had a rate of seven-tenths per cent which had previously been established for it by the bureau, which rate was effective for it for the calendar year 1942.

It was stipulated between the parties hereto that if Acme, when it purchased Buckeye's property and assets, became the successor in interest to Buckeye, within the meaning of the act, Acme's proper rate of contribution to the bureau should have been seven-tenths per cent rather than the two and seven-tenths per cent, according to which it paid. If Acme had paid at the rate of seven-tenths per cent, it would have paid to the bureau $457.31 less than it paid in 1942, $4,168.45 less than it paid in 1943 and $3,714.58 less than it paid in 1944.

In November 1944, Acme filed claims with the bureau for refund of the alleged overpayments in the amounts above specified. The claims were filed pursuant to the provisions of Section 1345-2(e), General Code, a section of the Ohio Unemployment Compensation Act, and the appellee herein, administrator of the bureau, disallowed the same. Acme then instituted further proceedings with the administrator, which were heard before a deputy administrator, for a review and redetermination of the order of disallowance pursuant to the provisions of Section 1345-4(c)(4)(F), General Code. The deputy administrator likewise ordered a disallowance.

An appeal, pursuant to Section 1345-4(c)(4)(F), General Code, was taken by Acme to the Court of Common Pleas of Franklin county, which court affirmed the decision of the deputy administrator.

An appeal was taken by Acme to the Court of Appeals which affirmed the judgment of the Common Pleas Court.

The case is before this court on the allowance of a motion to certify the record.

Thomas X. Dunigan, of Cleveland, for appellant.

Hugh S. Jenkins, Atty. Gen., John M. Woy, of Columbus, and Roland B. Lee, of Toledo, for appellee.

STEWART Judge.

Two questions are presented in this case. The first is, was Acme, within the meaning of the statute, a 'successor in interest' to Buckeye, and the second is, did Acme make its claims for refund of alleged excess contributions within the time limited by law.

Under Section 1345-4(c)(1), General Code, it is provided in part:

'If an employer shall transfer his business or shall otherwise reorganize such business, the successor in interest is hereby required to assume the resources and liabilities of such employer's account, and to continue the payment of all contributions * * *.'

It is conceded in this case, that, if Acme was a 'successor in interest' to Buckeye, its rate of contribution to the bureau should have been the same as Buckeye's, to wit, seven-tenths per cent. The administrator contends that Acme was not a 'successor in interest,' and the deputy administrator and the Court of Common Pleas so held. The Court of Appeals held that Acme was a 'successor in interest,' and, in this court, the administrator has assigned such holding as error. It is contended on the one hand by the administrator that Buckeye had ceased business before Acme was incorporated or functioning in business. The administrator contends that to be a 'successor in interest' the successor must have had transferred to it and must have taken over a going business; that Buckeye had ceased to manufacture aluminum products in September 1941, owing to the shortage of aluminum, and on October 22, 1941, its stockholders authorized a complete liquidation and distribution of its property; and that it marketed the last of its products about January 1942, so that, at the time Acme purchased Buckeye's property and assets, it was doing no business except the mere matter of liquidating. The administrator contends further that late in 1942 Acme started up in the old Buckeye property an entirely new type of business, to wit, the manufacture of war materials. On the other hand, it is contended by Acme that since it purchased the plants, assets, goodwill and right to use the name, Buckeye, Acme was the 'successor in interest' of Buckeye. Acme contends further that neither Buckeye nor itself could manufacture aluminum ware because the government conscripted all aluminum, and that, since Buckeye would still have been the same company, if it had turned to the manufacture of war materials, Acme was in fact and in law a 'successor in interest.'

In the view we take of this case, we are not called upon to decide the question whether Acme was a 'successor in interest' to Buckeye. Acme's claims for refund of its excess contributions were under authority of Section 1345-2(e) which reads as follows:

'If not later than four years after the date on which any contribution or interest thereon is paid, an...