Boynton Cab Co. v. Giese

• Decision Date: 11 March 1941
• Citation: 237 Wis. 237,296 N.W. 630
• Parties: BOYNTON CAB CO. v. GIESE et al.
• Court: Wisconsin Supreme Court

237 Wis. 237

296 N.W. 630

BOYNTON CAB CO.

v.GIESE et al.

Supreme Court of Wisconsin.

March 11, 1941.

Appeal from a judgment of the Circuit Court for Dane County; August C. Hoppmann, Judge.

Affirmed.

Action brought by Boynton Cab Company against the defendants, Henry Giese and the Industrial Commission, to set aside the allowance of unemployment benefits under Ch. 108, Stats., to Giese as a discharged employe of plaintiff. Upon a trial of the issues under the pleadings, the court filed findings of fact and conclusions of law upon which judgment was entered affirming the award. Plaintiff appealed from the judgment.Dougherty, Arnold & Kivett, of Milwaukee (Suel O. Arnold and Michael H. Keelan, both of Milwaukee, of counsel), for appellant.

Stanley Rector and Arthur Barber, both of Madison, for respondents.

Padway, Goldberg & Tarrell, of Milwaukee, and R. M. Stroud and E. L. Wingert, both of Madison, amicus curiae.

FRITZ, Justice.

The defendant, Henry Giese, was employed for about four years (except for a brief interval in February 1938) as a taxicab driver by the appellant, Boynton Cab Company, until it discharged him on November 18, 1938. Upon his filing a claim for unemployment benefits under Ch. 108, Stats., the Commission gave due notice thereof to appellant in compliance with sec. 108.09 (1), Stats., and under the procedure authorized by that subsection appellant filed with the Commission a written rejection of the claim on the ground that “Giese was discharged *** because of dishonesty”. A deputy designated by the Commission made an ex parte investigation and an “initial determination” that the discharge was not for such misconduct as to render Giese ineligible under sec. 108.04 (4) (a), Stats., for unemployment benefits. Thereupon appellant requested a hearing and the Commission designated an Appeal Tribunal to hear and decide the disputed claim. The Tribunal held a hearing, as a trial de novo, at which it received sworn testimony which was taken down by an official stenographic reporter, together with all other proceedings at the hearing, and his transcript thereof constitutes the record upon which the Tribunal made findings of fact and a decision which sustained the initial determination and allowed benefits accordingly. Upon appellant's petition for a review of this decision, the Commission reviewed the record of the hearing before the Tribunal, and then adopted and affirmed the latter's decision. Appellant brought this action for a judicial review of the Commission's decision, including the allowance of unemployment benefits to Giese, and upon the entry of judgment affirming that decision appellant appealed.

[1][2][3] Appellant's principal contentions are (1) that the Commission acted without and in excess of its powers in allowing the unemployment benefits to Giese and in forcing appellant to assume the burden of proof on the hearing before the Tribunal; and (2) that the “initial determination” by the deputy and the affirming of his decision by the Tribunal and the Commission is a denial of due process contrary to Art. XIV, U.S. Const. This latter contention is based upon appellant's claims that the evidence, upon which the deputy made the “initial determination”, was not known to appellant, nor was such evidence required to be produced and appellant given an opportunity to rebut it. Whatever may have been the nature of the evidence upon which the deputy acted, it does not appear that appellant was aggrieved by his mere “initial determination” upon but an administrative investigation, which was not binding upon appellant inasmuch as it was entitled to and duly granted, upon its request, a hearing with a trial de novo before the Tribunal under subsecs. (2) to (5) of sec. 108.09, Stats. These provisions required the Tribunal to keep a full and complete record of all of its proceedings in relation to the claim and have all testimony which it received on the hearing taken down by a stenographer who was to make a transcript thereof upon the request of either party. There was apparently due compliance in these respects and there is nothing in the record on the hearing before the Tribunal to show upon what evidence the deputy made his initial determination, or that the Tribunal was informed as to such evidence, or that its decision was influenced thereby. In view of (1) the absence of any showing to that effect in the record, and (2) the evident intention under sec. 108.09(2) to (5), Stats., that the deputy's investigation and initial determination shall be superseded in the event of a request by appellant for a hearing by an Appeal Tribunal, and (3) the fact that appellant was duly granted such a hearing upon notice, with a trial de novo before the Tribunal, which made a decision based upon but the evidence taken on such a trial, appellant cannot be deemed to have been aggrieved or denied due process of law in the respect contended. It is not necessary, in order to meet the essentials of due process, to have a formal hearing with notice to all parties at but an initial or preliminary stage of a mere administrative proceeding as to the result of which they are afforded, after having received due notice, an opportunity to be heard in respect to such evidence as is to be taken or used as basis for the determination which is to be binding upon them. As the court said, in relation to proceedings under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq.: “The demands of due process do not require a hearing, at the initial stage or at any particular point or at more than one point in an administrative proceeding so long as the requisite hearing is held before the final order becomes effective. The proceedings before the Administrator as provided by § 8(b) satisfy the requirements of due process without further requirement, which the statute omits, of a hearing on notice before the committee.” Opp Cotton Mills, Inc., et al. v. Administrator of Wage and Hour Div. of Dept. of Labor, 61 S.Ct. 524, 536, 85 L.Ed. 624, decided Feb. 3, 1941.

In passing upon the contentions that it was not “due process of law” to allow testimony to be taken without notice to either party, and notice of an applicant's claim for compensation to be given by mail, as provided in sec. 2394-16, Stats., Workmen's Compensation Act, this court said in Borgnis v. Falk Co., 147 Wis. 327, 363, 133 N.W. 209, 220, 37 L.R.A.,N.S., 489: “Were the commission a court, these objections would probably deserve serious consideration, especially the latter one. But, as we have seen, the commission is an administrative board merely. It is common knowledge that such boards are frequently given power to investigate and determine facts without notice to the parties of each successive step in the proceedings. The proceedings before such boards are not expected to be as formal and cumbrous as the proceedings of courts; indeed, the greater flexibility which such bodies must possess if they are to discharge their duties seems to demand greater freedom of action. If notice, either actual or constructive, of the commencement of the proceedings before such a body be required to be given to the parties interested, and they be given full and free opportunity to be heard and present evidence, it is generally held sufficient, even though notice of intermediate steps in the proceeding be not required or given.” To the same effect see Milwaukee County v. Dorsen, 208 Wis. 637, 641 et seq., 242 N.W. 515;Bourjois, Inc., v. Chapman, 301 U.S. 183, 57 S.Ct. 691, 81 L.Ed. 1027;United States v. Illinois Cent. Ry. Co., 291 U.S. 457, 463, 54 S.Ct. 471, 78 L.Ed. 909;McGregor v. Hogan, 263 U.S. 234, 237, 44 S.Ct. 50, 68 L.Ed. 282; Mott on Due Process of Law, § 89; 12 Am.Jur. p. 307, § 612.

[4][5] The contention by appellant that the Commission erred in requiring appellant to assume the burden of proof is made in relation to the Commission's implied approval of a ruling made by the Tribunal, upon appellant's counsel inquiring whether it was to put in its evidence first, and stating that he assumed that the record ought to contain some evidence upon which there was based the initial finding that this was a case for payment of compensation. The chairman of the Tribunal ruled, “This, in effect, is a trial de novo. The decision in this case will be based upon the testimony presented at the hearing. The burden of proof is upon the employer, who is attempting to protect his reserve fund.” This ruling, which is questioned by appellant, was proper in view of the following matters: (1) The stipulation at the commencement of the hearing that the only question involved was whether Giese was discharged for dishonesty; (2) the provision in sec. 108.02(18), Stats., that, “An employe shall be deemed ‘eligible’ for benefits for any given week of his partial or total unemployment only when he is not disqualified by any provision of this chapter from receiving benefits for such week of unemployment”; and (3) the provision in sec. 108.09(1), Stats., requiring a written statement from the employer setting out the reasons for the rejection of the claim in the event that he seeks to have an employe held disqualified from receiving the benefits. Under these provisions, it was evidently intended that an unemployed worker, who is otherwise eligible for benefits, shall be deemed eligible unless the employer in rejecting his claim asserts some valid reason because of which the employe must be considered...