C. A. Lund & Co. v. Rolfe.

• Decision Date: 06 February 1945
• Citation: 41 A.2d 226
• Parties: C. A. LUND & CO. v. ROLFE.
• Court: New Hampshire Supreme Court

41 A.2d 226

C. A. LUND & CO.

v.ROLFE.

Supreme Court of New Hampshire.

Feb. 6, 1945.

Transferred from Superior Court, Belknap County; Lorimer, Judge.

Action by C. A. Lund & Co. against Richard S. Rolfe for declaratory judgment concerning amount of contributions payable by plaintiffs to Unemployment Compensation Fund. Case submitted upon an agreed statement of facts, and transferred without ruling.

Judgment for defendant.

Petition for a declaratory judgment under R.L. c. 370, § 20. The plaintiffs seek relief from a ruling by the defendant, executive director of the unemployment division of the Bureau of Labor, concerning the amount of contributions payable by them to the unemployment compensation fund under R.L. c. 218. The case was submitted upon an agreed statement of facts, the material portions of which appear in the opinion. Transferred without ruling by Lorimer, J.

PAGE and BURQUE, JJ., dissenting.

Harold E. Wescott, of Laconia, for plaintiffs.

F. Maurice LaForce, of Berlin, for defendant.

BRANCH, Justice.

The C. A. Lund Company, predecessor of the plaintiff partnership, and a wholly owned subsidiary of the Northland Ski Manufacturing Company, a Minnesota corporation, commenced the manufacture of skis and allied equipment at Laconia in this state in October, 1937. By April 1, 1942, the Laconia plant employed one hundred and thirty-seven persons, with a monthly pay roll of about $15,000. The agreed statement in regard to the stock ownership of the Northland Ski Manufacturing Company is not entirely clear, but the plaintiffs cannot be harmed if we accept the interpretation placed upon it by their counsel. We quote from their brief: ‘The stockholders of the corporation consisted of the father, mother and the children of the Lund family, namely, C. A. Lund, Emma A. Lund, Carl F. Lund, Ambrose C. Lund, Harriet M. Lund and Alice J. Lilleburg.’ By means of voting trusts, the control of the corporation was vested solely in Carl F. Lund and Ambrose C. Lund. On April 1, 1942, the plaintiff partnership consisting of Carl F. Lund, Ambrose C. Lund, C. A. Lund and Harriet M. Lund, all stockholders of the Northland Ski Manufacturing Company, ‘took over’ in an undisclosed manner, the Laconia plant and have since continued to operate it under the name of C. A. Lund and Company. Since April 1, 1942, there have been no changes in the personnel or type of business conducted before that date except such as normally occur in the operation of any manufacturing business. It is asserted in the plaintiffs' brief that ‘actually nothing has happened to this manufacturing business except that two members of the Lund family have withdrawn their interest in the Laconia plant.’

For the first six months of 1943, C. A. Lund Company, if still in business and upon their experience, would have been ordered to pay contributions at the rate of 2.5%; for the second six months of 1943 at 2.3%; for the first six months of 1944 at the rate of 1.3%. These reductions would have arisen under the provisions of R.L. c. 218, with reference to merit ratings based upon the experience of the business for three years.

The defendant is charged by the statute with the duty of determining the merit rating of employers in accordance with their actual experience in the payment of contributions on their own behalf and with respect to benefits charged against their accounts, with a view to fixing such contribution rates as will reflect such experience. R.L. c. 218, § 6E. Section 1 of the act defines employer as follows:

‘H. ‘Employer’ means (1) Any employing unit which in each of twenty different weeks * * * within either the current year or the preceding calendar year, has or had in employment, four or more individuals, irrespective of whether the same individuals are or were employed in each such week; * * *

‘(3) Any employing unit which acquired the organization, trade or business, or substantially all the assets thereof, of another which at the time of such acquisition was an employer subject to this chapter.’ R.L. c. 218, § 1H.

The defendant has ruled that since there was a change in ownership on April 1, 1942, the plaintiffs will not be entitled to the low rating until January 1, 1946 when they will have had an independent existence and experience for three years. The plaintiffs have paid contributions under protest to the unemployment compensation fund of 2.7%.

The question to be decided is whether or not the partnership is entitled to succeed to the merit rating of the corporation. It is argued by the plaintiff that ‘the same personnel continue to carry on the same manufacturing business as before and it is not fair or just that the partnership should be denied the merit rating experience of the corporation.’ The short answer to this argument is that the statute contains no provision for the transfer of the merit rating of one employer to another, and the question of the justice or the fairness of the present arrangement is for the Legislature to determine. In order to grant the relief prayed for it would be necessary for the Court, in effect, to write into the statute a new provision authorizing such transfer, which would clearly transcend the limits of judicial power.

It is stated in the defendant's brief and not controverted by the plaintiffs, that the laws of forty-two states now provide for experience ratings and that thirty-eight of these statutes make provision for transfers of experience ratings from one employer to another in certain cases. This fact lends added force to our conclusion that relief in such cases must be sought from the Legislature rather than from the courts.

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