Department of Indus. Relations v. West Boylston Mfg. Co.

• Decision Date: 06 October 1949
• Docket Number: 3 Div. 532.
• Citation: 42 So.2d 787,253 Ala. 67
• Parties: DEPARTMENT OF INDUSTRIAL RELATIONS et al. v. WEST BOYLSTON MFG. CO.
• Court: Alabama Supreme Court

42 So.2d 787

253 Ala. 67

DEPARTMENT OF INDUSTRIAL RELATIONS et al. v. WEST BOYLSTON MFG. CO.

3 Div. 532.

Supreme Court of Alabama

Oct. 6, 1949

Rehearing Denied Nov. 17, 1949.

A. A. Carmichael, Atty. Gen., Aubrey Cates, Jr. Gen. Counsel, Department of Industrial Relations, Sp. Asst Atty. Gen., Hugh F. Culverhouse, Asst. Atty. Gen., and Richard T. Rives, Sp. Counsel, of Montgomery, for appellant.

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

FOSTER Justice.

This case was before the Court previously. Carnley v. State ex rel. West Boylston Mfg. Co., 250 Ala. 403, 34 So.2d 681.

The first question argued in brief by appellants relates to the meaning and validity of section 243, Title 26, Code, as measured by certain provisions of the Constitution and in connection with section 204(H), Title 26, Code, as construed by this Court.

Appellee, claiming the benefit of section 243, supra, filed its petition with the director on August 18, 1947, for a refund of certain contributions to the unemployment compensation fund as set up in section 197, Title 26, Code. The contributions were paid in 1944, and alleged to have been erroneously collected and, therefore, to be subject to refund under section 243, supra, which in terms allows such a petition to be presented and determined by the director for contributions erroneously collected within four years. There was a denial by the director and on appeal to the circuit court that court reversed and ruled that the said contributions were erroneously collected, and ordered either a refund by the director or an allowance of credit on future payments.

The claim of appellee is based on a contention that an amendment made June 28, 1943, to section 204(G) of Title 26, Code, by adding No. 6 violates section 45 and other provisions of the Constitution. That amendment makes provision for a larger contribution rate on 'Excess Wages'. No application was made for a redetermination of the amount of wages taxable at the reduced rate, which is provided for in section 204(H) to be made within sixty days of the date of mailing by the director to the employer of the notice of the determination of that matter by the director.

The question posed by the appellants, now considered, is whether section 243, supra, permits such an application within four years when no application was filed within sixty days under section 204(H).

That statute looks to an existing status before the contributions shall be made. It authorizes procedure to settle disputes with respect to the basis of computation by which the amount of the contributions shall be determined and provides for a redetermination when that made by the director is erroneous. It does not provide for a refund because it does not relate to contributions which have already been made. If a redetermination is finally made on the basis of such application, resulting favorably to the employer, contributions made pending such review may be adjusted or refunded pursuant to section 243 of Title 26, supra. That would contemplate an application for such adjustment or refund of contributions which are required to be made pending review, to refund which section 204(H) makes no provision. Section 243, supra, is also available, as we will show, to correct any erroneous computation on matter determined by the director which determination is conclusive by the failure to appeal under section 204(H).

As amended by the Act of June 28, 1943, General Acts 1943, page 281, such redetermination on the application of the employer may include the amount of wages which as to such employer will be taxable at such reduced rate (wages in excess of which shall be excess wages). Before the amendment was made and while section 204(H) provided for a redetermination of only the employer's benefit wage percentage, this Court in Broadway v. Alabama Dry Dock & Shipbuilding Co., 246 Ala. 201, 20 So.2d 41, 45, observed as to it that it did not provide for a review of the fixation by the director of the State experience factor although the legislature had the power to provide for such review, therefore, the legislature intended 'that aside from the limited review authorized by § 204(H), and after the expiration of sixty days, the rate as fixed should be non-reviewable.' And 'where applications for adjustments and refunds are made under § 243, Tit. 26, Code 1940, it must be assumed that the contribution rate fixed by the director is correct, and conclusively so.' At that time the contribution rate based on the benefit wage percentage was the only matter then subject to redetermination and review under section 204(H). But we think that is a holding that broadly speaking to the extent that a redetermination and review are available under section 204(H) a failure to exercise the right as there provided has the effect of conclusively making effective the director's primary determination and it is not subject to review under section 243, supra, except for some erroneous computation or other error not going to the basis of the computation.

Since that time the legislature has added to the matter subject to review under section 204(H), supra, 'the amount of wages which, as to such employer, will be taxable at such reduced rate (wages in excess of which will be excess wages).'

Appellants argue that since the amount of excess wages was subject to redetermination and review under section 204(H), supra, which was not done, it cannot be the basis of a refund under section 243, supra.

But we think the legislature did not intend that by such failure an employer would be concluded as to a matter over which the judicial power of the director could not be made conclusive when that want of authority appeared on the face of the proceeding. It may even be questionable whether the legislature intended to bestow on such a tribunal the right to make the primary determination of its jurisdiction in response to a contention that such proposed jurisdiction is in violation of some provision of the Constitution or plain provision of law. The inclusion in the determination by the director of matter which is not authorized by the Constitution or law appearing on the face of the proceedings could well be made the basis of review by common law certiorari without resorting to the remedy provided in section 204(H), supra.

The right of such contention is not curtailed by a failure to apply for a review under section 204(H). We agree that whatever right was foreclosed by a failure to apply for a redetermination under that statute cannot be made the basis of an application under section 243, supra.

But since the controversy here relates to the claim of a want of jurisdiction or plain violation of law which appearing on the face of the proceeding is not foreclosed by a failure to apply for a redetermination under section 204(H), supra, we see no reason why section 243, supra, should not be as available for such relief as is certiorari.

A holding by us that the excess wages amendment to section 204 is constitutional would serve to foreclose the right of appellee to question the amount of the excess wages as determined by the director for that a petition to redetermine was not made under section 204(H), supra. S. Buchsbaum & Co. v. Gordon, 389 Ill. 493, 59 N.E.2d 832, Id., 325 U.S. 838, 65 S.Ct. 1411, 89 L.Ed. 1964.

Section 243, supra, is not without application to other situations, such as overpayments because the amount had been incorrectly figured according to the rate established or because of a mistake in figuring the number of employees for whom payments had to be made, or any other overpayments from any general cause, Acme Engineering Co. v. Jones, 150 Ohio St. 423, 83 N.E.2d 202, as by the inclusion in the determination of a statutory burden which is in violation of the Constitution.

Appellants challenge the constitutionality of section 243, supra, as violative of sections 72, 100, 14 and 45 of the Constitution.

Sections 72, 100 and 14, Constitution.

Section 72 provides that no money shall be paid out of the treasury except upon appropriations made by law. Section 100 prohibits a remission or release of an obligation or liability to the State or its diminution by the legislature, or that it be extinguished except by payment. Section 14 prohibits all suits against the State. We have many cases on the subject of each such provision of the Constitution.

We do not think section 243, supra, violates any of them. To understand its application to this situation it is necessary to analyze its status as respects those provisions of the Constitution.

We recently had occasion in an advisory opinion to the House of Representatives of Alabama in respect to the office building bill before the House for the Industrial Relations Department of the State to observe that the unemployment compensation fund is set up by section 197, Title 26, Code, to be composed principally of contributions made to it by employers and employees pursuant to that chapter of the Code, and the accretions to such contributions and money received from the federal unemployment account. That by section 198, Title 26, Code, the director shall designate a treasurer of that fund. The State treasurer is not the treasurer of that fund by virtue of his office. Within that fund a clearing account is set up by such treasurer. Refunds payable under section 243, supra, are directed to be paid out of the clearing account. 'After clearance thereof' all other moneys in the clearing account shall be deposited with the Secretary of the Treasury of the United States to the credit of the account of this State in the unemployment trust fund established and maintained by act of Congress. Opinion of the Justices, Ala.Sup., 41 So.2d 771.

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