Carnley v. State ex rel. West Boylston Mfg. Co.

• Decision Date: 08 April 1948
• Docket Number: 3 Div. 500.
• Citation: Carnley v. State ex rel. West Boylston Mfg. Co., 34 So.2d 681, 250 Ala. 403 (Ala. 1948)
• Parties: CARNLEY, Director of Department of Industrial Relations, v. STATE ex rel. WEST BOYLSTON MFG. CO.
• Court: Alabama Supreme Court

34 So.2d 681

250 Ala. 403

CARNLEY, Director of Department of Industrial Relations, v. STATE ex rel. WEST BOYLSTON MFG. CO.

3 Div. 500.

Supreme Court of Alabama

April 8, 1948

Aubrey M. Cates, Jr., Gen. Counsel, Dept. of Industrial Relations, of Montgomery, A. A. Carmichael, Atty Gen., Gardner F. Goodwyn, Jr., and Hugh F. Culverhouse, Asst Attys. Gen., and J. Eugene Foster, of Montgomery, for appellant.

Steiner Crum & Weil and Sam Rice Baker, all of Montgomery, for appellee.

BROWN Justice.

This appeal is prosecuted by Fleetwood Carnley, as Director of the Department of Industrial Relations, from a judgment of the Circuit Court of Montgomery County, awarding peremptory writ of mandamus directed to said appellant commanding him to 'determine petitioner's said application for refund marked Exhibit '1,' to its said petition, and do (to) allow same in whole or in part for refund or adjustment, or deny same in whole or in part, as the law and facts may warrant, giving petitioner due notice of such denial by mail.'

Said petitioner is the West Boylston Manufacturing Company, a corporation organized and existing under the laws of this state, an employer of labor, subject to and governed by the industrial relations act embodied in Title 26, Chapter IV, Code of 1940, and makes contributions under the provisions of said act to the trust fund established thereunder.

On the 18th of August, 1947, petitioner made application to the director of the department of industrial relations for an adjustment or refund under the provisions of § 243, Title 26, in respect to a payment made on May 4, 1944, estimated on taxable wages accruing and paid by the petitioner to employes from January 22 to March 31, 1944, the amount of the contribution as tax being $6,660.28.

On the filing of the petition for writ of mandamus the circuit court awarded the alternative writ requiring the director to show cause why he should not consider said claim. The stipulation of facts made between the parties in open court on submission of the case for final judgment conceded that the petitioner had made demand on the respondent to consider its application and to determine the same and either to grant it in whole or in part or to deny it in whole or in part and that respondent, after a reasonable time has elapsed for such consideration, has taken no action thereon.

The return to the rule nisi by the respondent in its material parts sets up as a reason for nonaction want of jurisdicition and absence of duty on the part of the director to consider the claim for the reason that the provisions of § 204(H), Title 26, Code of 1940, requires the filing of such claim within 60 days from the date of mailing notice by the director to the employers of the determination of the employer's benefit wage percentage and its contribution rate as fixed by its benefit wage percentage. To state the contention otherwise, § 204, (H), Title 26, Code of 1940, is a statute of limitations barring the right of review of claims filed under § 243, Title 26.

Before filing the answer or return to the rule nisi the respondent challenged the sufficiency of the petition by demurrer, raising above questions asserted by the return, which demurrer was overruled. In paragraphs 4, 5, 6 and 7 of the answer or return, in addition to the absence of jurisdicition and lack of duty on the part of the director to act, the respondent sets up facts going to the merits of the claim. After motion to strike said paragraphs they were eliminated on demurrer filed by petitioner. The assignments of error challenge the soundness of the rulings on demurrer to the petition and said paragraphs of the answer.

Section 243, Title 26, Code of 1940, provides: 'If not later than four years after the date on which any contributions penalties, or interest became due an employer who has paid such contributions, penalties, or interest thereon shall make application for an adjustment thereof in connection with subsequent contribution payments, or for a refund hereof because such...