Cowiche Growers, Inc. v. Bates

• Decision Date: 09 October 1941
• Docket Number: 28434.
• Citation: 117 P.2d 624,10 Wn.2d 585
• Court: Washington Supreme Court
• Parties: COWICHE GROWERS, Inc., et al. v. BATES, Com'r of Unemployment Compensation and Placement, et al.

117 P.2d 624

10 Wn.2d 585

COWICHE GROWERS, Inc., et al. v. BATES, Com'r of Unemployment Compensation and Placement, et al.

No. 28434.

Supreme Court of Washington, En Banc.

October 9, 1941

Action for a declaratory judgment by Cowiche Growers, Incorporated and others, against Jack E. Bates, Commissioner of Unemployment Compensation and Placement of the State of Washington, and another. From a judgment of dismissal plaintiffs appeal.

Affirmed.

SIMPSON J., and ROBINSON, C.J., dissenting.

Appeal from Superior Court, Thurston County; John M. Wilson, judge.

Cheney & Hutcheson and Wendell W. Duncan, all of Yakima, for appellants.

Vanderveer, Bassett & Geisness, of Seattle, amici curiae.

Smith Troy and William J. Millard, Jr., both of Olympia, for respondents.

JEFFERS Justice.

Plaintiffs, Cowiche Growers, Inc., and Yakima County Horticultural Union, co-operative corporations, and sixteen other corporations and firms, filed in the superior court for Thurston county a complaint and amended complaint, for the purpose of obtaining a declaratory judgment definding their rights, duties, privileges and liabilities under the unemployment compensation act, in so far as it concerns plaintiffs' employees who are engaged in rendering the services described in the amended complaint. The prayer of the amended complaint further asks:

'(a) That the services rendered and labor performed by such of plaintiffs' employees as are described in the complaint be adjudged to be agricultural labor within the meaning of the 'Unemployment Compensation Act' and, therefore, exempt from the operation of such act; and

'(b) That plaintiffs are entitled to a refund of all contributions paid upon the wages of such employees; and

'(c) That the failure of a plaintiff to have appealed from a benefit determination when notice of such determination has been given him does not affect either his right to a refund nor the amount thereof.'

In order that we may have Before us the character of the services performed, it will be necessary to set out in detail the services described in the amended complaint. In the various paragraphs of the amended complaint it is alleged:

'4. Each of the plaintiffs employs employees in receiving, washing, sorting, packing, and storing of fresh fruits as a necessary incident to the preparation of such fruits for market in their fresh or raw condition; and all of said fruits are delivered to carriers for transportation to market shortly after the completion of such services. The said services are necessary to be performed in order that such fruits may be marketed, and all of the said services are rendered to such fruits in their raw state.'

'7. The said services rendered by such employees upon fresh fruits are as follows: (a) receiving of fruit at the plant and checking it in; (b) hand-trucking the fruit from the receiving platform either direct to the washing machine, or into cold storage to await washing, and then being hand trucked from storage to the washing machine; (c) running the fruit through a washer for the purpose of removing excess deposits of lead, arsenate, acid, and fluorine. The washing is made mandatory by the Pure Food and Drugs Act of the United States [21 U.S.C.A. § 1 et seq.] and the regulations of the Department of Agriculture of the United States of America; (d) sorting the fruit into the various grades--in the case of apples, into extra fancy, fancy, 'C' grade, and culls. This sorting is required by the statutes of the state of Washington and the rules and regulations of the Department of Agriculture of the state of Washington; (e) sizing the fruit, which is necessary in order to get the uniform sizes for packing, which is required and done according to the rules and regulations of the department of agriculture of the state of Washington; (f) packing the fruit into boxes, which packing is in accordance with the rules and regulations of the department of agriculture of the state of Washington, and in standard containers prescribed by the laws of the state of Washington; (g) lidding and labeling--, lidding the boxes is made necessary in order to ship said fruit to makret, and labeling of the boxes is required by the rules and regulations of the department of agriculture of the state of Washington and the agricultural laws of this state; (h) hand-trucking the boxed fruit to a carrier for transportation to market, and loading upon said carrier for shipment to market, or hand-trucking the boxed fruit to cold storage to await shipment, and then from cold storage to said carrier and loading upon said carrier for transportation to market.'

'10. All of such services have always been performed upon the orchard by the farmer and his employees until recently when the cost of the equipment became so large that farmers owning or operating small orchards could not afford the investment, and it became more economical to have the services performed at central locations. At the present time the identical services above set forth are performed upon the farm or orchard for the owner or tenant thereof by employees of the owner or tenant upon many orchards in the immediate vicinity of the plaintiffs.'

'14. None of the plaintiffs, insofar as this action is concerned, conduct any of the operations in which such services are rendered upon a farm, but in packing houses and warehouses centrally located in Yakima, Selah, Buena, and Westbrook, in Yakima county, Washington. Some of the plaintiffs operate commercially soley, and grow no fruit of their own. Others of the plaintiffs grow fruit and also pack commercially for other farmers. Two of the plaintiffs, Cowiche Growers, Inc. and Yakima County Horticultural Union, are cooperative associations, only handling the fruit of their members. The said cooperatives are duly organized under the laws of the state of Washington, and are classified as cooperatives by the state and federal governments under all laws with reference to cooperatives; and each of said cooperative associations is engaged in the business of marketing the fruit grown by its members and rendering such subsidiary and additional services as are necessarily incident thereto.'

'15. That with the exception of fruit that is grown by some of the plaintiffs, and received, washed, sorted, sized, packed, and stored by them for their own account, each and all of the said services rendered by any of the plaintiffs are for the account of the farmer or grower of the fruit on a cost per box basis, and is charged directly to the grower.'

'17. At the present time approximately one-third of all fresh fruits are ranch or orchard packed, one-third thereof are packed by grower cooperatives, and one-third by centrally located packing plants on a custom basis by commercial packers for the grower. That is, that all Washington apples, pears, peaches, cherries, etc., are packed either by or for the grower.'

The trial court, in its memorandum opinion, stated:

'Plaintiff contends that all of such services constitute agricultural labor within the meaning of that term as contained in chapter 162, Laws of 1937, and chapter 214, Laws of 1939.

'Defendant contends such services are not agricultural and that plaintiffs are liable for the contributions provided for by said acts, based upon employers wages for such services.

'By section 19(g)(6), chapter 162, Laws of 1937, the legislature excluded from the operation of the act, 'Agricultural Labor'. The 1939 legislature amended section 19(g)(6)(i), so as to read as follows:

"The term employment shall not include (i) agricultural labor-(services customarily performed by a farm hand on a farm for the owner or tenant of a farm).'

'The legislature thus defined what it meant by agricultural labor in the enactment of 1937.

'The legislature of 1941 [c. 253], amended the act of 1939 and the definition of agricultural labor as contained therein so as to exclude from the operation of the act as agricultural labor the various services set forth in the complaint, which amendment more closely conforms to the definition of agricultural labor found in the act of congress.

'It is the contention of plaintiffs that this definition is interpretative and explanatory of the term agricultural labor used in the 1937 and 1939 acts. I do not think this contention can be successfully maintained. The 1941 act is purely an amendment. It does not purport to be retroactive and cannot be operative Before the effective date fixed by statute after the passage of the act. * * *

'The rights of the parties to this action must be governed by the statute as it existed at the time of the performace of the work and I am satisfied that the work performed as set forth in the complaint cannot be considered as agricultural labor within the definition of the act of 1939. It is rather, employment in an industrial or commercial enterprise as contended by the defendant.'

Judgment dismissing the action was entered on May 12, 1941, after demurrers to the complaint and amended complaint had been sustained, and after plaintiff had refused to further plead. This appeal by plaintiffs followed.

The assignments of error are (1) in sustaining the demurrer to the complaint; (2) in sustaining the demurrer to the amended complaint; (3) in entering judgment dismissing appellants' action. This opinion considers the allegations of both the complaint and amended complaint.

Appellants' argument is divided as follows:

'I. The services described in the complaint are 'agricultural labor' within the meaning of the 1937 act and within the meaning of the 1939 unnumbered section and within the meaning of the 1941 amendment to the unnumbered section.

'II. The 1941 act is a binding interpretation by the legislature as to what it...