Employment Sec. Agency v. Joint Class "A" School Dist. No. 151

• Decision Date: 22 March 1965
• Docket Number: D,No. 151,No. 9481,151,9481
• Citation: 400 P.2d 377,88 Idaho 384
• Parties: Page 377 400 P.2d 377 88 Idaho 384 EMPLOYMENT SECURITY AGENCY, Plaintiff-Respondent, v. JOINT CLASS 'A' SCHOOL DISTRICT, Defendant-Appellant. Supreme Court of Idaho
• Court: Idaho Supreme Court

Page 377

400 P.2d 377

88 Idaho 384

EMPLOYMENT SECURITY AGENCY, Plaintiff-Respondent v JOINT CLASS 'A' SCHOOL DISTRICT No. 151, Defendant-Appellant.

No. 9481.

Supreme Court of Idaho.

March 22, 1965.

Herman E. Bedke, Burley, for defendant-appellant.

Franklin H. Powell, Boise, for plaintiff-respondent.

SMITH, Justice.

The issue involved on this appeal is whether appellant school district is liable for payment of unemployment payroll taxes on its employees, other than faculty members, for the period from January 1, 1962, to May 18, 1963, inclusive. The determination of the issue hinges upon the construction of certain sections of the statute and construction of the definition of 'covered employment'. The facts are undisputed.

Prior to 1961, I.C. § 72-1316(a)(6) provided that 'covered employment' wxcluded:

'Service performed in the employ of * * * any public institution or instrumentality which pays the wages of its employees out of moneys raised solely by exercise of the power of taxation, including * * * school districts; * * *.'

The legislature in 1961, by H.B. 138 (S.L. 1961, ch. 112), enacted I.C. § 72-1316B setting forth a new exclusion in this area of covered employment; portions thereof read:

'On and after January 1, 1962, the term 'covered employment' in addition to the definition contained in section 72-1316 shall include an individual's entire service for wages when performed for and paid by any county, municipality, incorporated village, or any public institution or instrumentality other than the State of Idaho, which pays the wages of its employees out of moneys raised solely by the exercise of the power of taxation, excluding the following:

* * *

* * *

'(2) Members of the faculties of public schools, colleges or universities.

'* * *.'

The legislature in 1963, by H.B. 72 (S.L. 1963, ch. 92), amended I.C. § 72-1316B to read:

'On and after January 1, 1962, the term 'covered employment' in addition to the definition contained in section 72-1316 shall include as an individual's entire service for wages when performed for and paid by any county, municipality, incorporated village, or any public institution or instrumentality other than the state of Idaho, which pays the wages of its employees out of moneys raised solely by the exercise of the power of taxation, excluding the following:

* * *

* * *

'(2) Members of the faculties of public schools, colleges or universities, and all other employees of public school districts.' (Amendatory portion is italicized.)

This enactment became law March 12, 1962.

Thereafter the legislature in 1963, by H.B. 131 (S.L. 1963, ch. 318), amended I.C. § 72-1316(a)(6) and repealed I.C. § 72-1316B, as follows:

'72-1316. COVERED EMPLOYEMENT.--(a) The term 'covered employment' means an individual's entire service, including service * * * performed by him for wages or under any contract of hire, * * * except----

'* * *

'(6) Services performed in the employ of: (A) any public institution or instrumentality which acquires its operating funds primarily through direct or indirect, taxation, including but not limited to * * * school districts; * * *.

'* * *

'SECTION 2. That Section 72-1316B [Sess. Laws 1963, ch. 92], Idaho Code, be, and the same is hereby repealed.'

This enactment became law March 28, 1963, effective May 18, 1963, 60 days after the legislature adjourned. I.C. § 67-510.

In January 1962 appellant school district began paying payroll taxes on all of the employees, other than school teachers, and continued payment thereof through the four quarters of 1962. Appellant refused thereafter to pay such taxes for the first quarter of 1963, and demanded a refund from respondent of all sums paid during the year 1962.

Thereafter upon the conclusion of hearings had, respondent's appeals examiner determined that appellant school district was liable for payment of payroll taxes for the period from January 1, 1962, to May 18, 1963, inclusive, and denied appellant's demand for refund.

The Industrial Accident Board, upon appellant school district's appeal, entered an order affirming the decision of the appeals examiner. The school district thereupon perfected an appeal to this Court.

Appellant by its assignments asserts that the Board erred in determining that appellant was liable for payment of payroll taxes for the portion of the year 1963 to and including May 18, 1963, and in refusing to grant to appellant a refund for such taxes paid during the year 1962; also in determining that liability for payment of such taxes was lawfully imposed under constitutionally adopted law.

The following furnishes a brief reference to the laws and their respective provisions pertinent herein:

I.C. § 72-1316(a)(6) prior to

the 1961 legislature, excluded from 'covered employment' services performed in the employ of a public institution which pays its employees out of moneys raised solely by the power of taxation, including school districts.

H.B. 138, 1961 legislation, enacted

I.C. § 72-1316B to effective January 1, 1962, to exclude from 'covered employment', members of the faculties of public schools.

H.B. 72, 1963 legislation, amended

I.C. § 72-1316B to exclude from 'covered employment', all employees of school districts. It became law March 12, 1963.

H.B. 131, 1963 legislation, amended

I.C. § 72-1316(a)(6) to exclude from 'covered employment' services performed in the employ of a public institution, which acquires its operating funds primarily through direct or indirect taxation, including school districts; and repealed I.C. § 72-1316B. It became law March 28, 1963, effective May 18, 1963.

The various enactments will be considered in the order of their adoption by the legislature.

Appellant raises the question as to which enactment is controlling, i.e., H.B. 138 (1961) enactment) which sought to impose liability upon appellant for payment of the payroll taxes, or I.C. § 72-1316(a)(6) which excepted appellant from imposition of any such liability.

Appellant points out that H.B. 138 (1961 enactment) sought to impose liability for payment of such taxes upon the payroll of employees who were not members of faculties of public schools; whereas H.B. 138 did not amend I.C. § 72-1316(a)(6) which excluded from covered employment services paid for by a school district from moneys raised solely through taxation. The two enactments are in pari materia; there is irreconcilable conflict between them inasmuch as I.C. § 72-1316(a)(6) in effect excludes from covered employment all services performed for public schools paid by money derived through taxation; whereas H.B. 138 excludes from covered employment only members of the faculties, but by implication includes in covered employment all other employees of public schools.

'[I]n case of an irreconcilable inconsistency between statutes in pari materia the latest expression of the legislative will should control.' Lloyd Corporation v. Bannock County, 53 Idaho 478, 25 P.2d 217 (1933). See also Little v. Nampa-Meridian Irrigation District, 82 Idaho 167, 350 P.2d 740 (1960); Herrick v. Gallet, 35 Idaho 13, 204 P. 477 (1922); Peavy v. McCombs, 26 Idaho 143, 140 P. 965 (1914). To the extent that there is conflict in the provisions of I.C. § 72-1316(a)(6) enacted prior to the 1961 legislature, and H.B. 138, enacted by the 1961 legislature, the latter is controlling and must prevail, commencing as of January 1, 1962, as provided in the first paragraph of such enactment.

Appellant contends that H.B. 72 (1963 enactment) which amended I.C. § 72-1316B to exclude from covered employment all employees of school districts, had a retroactive application to January 1, 1962, as set forth in H.B. 138 (1961 enactment), and that therefore the legislature intended that appellant school district be exempted from liability for payment of payroll taxes on its entire payroll back to January 1, 1962. Appellant argues, although the amendment, H.B. 72, does not specifically provide for retroactive operation, nevertheless by setting out the provision contained in the original 1961 enactment of I.C. § 72-1316B that it become effective January 1, 1962, shows the legislative intent that the amendment shall have such retroactive effect.

An inspection of H.B. 72 (1963 enactment) shows that the 1963 legislature amended only paragraph (2) of I.C. § 72-1316B, to exclude from covered employment, 'all other employees of public school districts', in addition to the 1961 exclusion of 'members of the faculties'. The applicable rule of construction is set forth in I.C. § 67-511, which reads:

'Where a section or part of a statute is amended, it is not to be considered as having been repealed and re-enacted in the amended form; but the portions which are not altered are to be considered as having been the law from the time when they were enacted and the new provisions are to be considered as having been enacted at the time of the amendment.'

See also State ex rel. Nielson v. McCarty, 76 Idaho 153, 279 P.2d 879 (1955); John Hancock Mut. Life Ins. Co. v. Haworth, 68 Idaho 185, 191 P.2d 359 (1948); 82 C.J.S. Statutes § 384, p. 903. We therefore conclude that the amendatory portion of H.B. 72 (1963 enactment) cannot be accorded a retroactive application.

Appellant poses the query: Did H.B. 131 (1963 enactment) repeal only H.B. 138 (1961 enactment) codified as I.C. § 72-1316B; or did H.B. 131 also repeal I.C. § 72-1316B as amended by H.B. 72 (1963 enactment)?

The legislature by its latest enactment H.B. 131 (1963 enactment) specifically repealed I.C. § 72-1316B, as amended by the previous enactment H.B. 72 (1963 enactment); and by amendment to I.C. § 72-1316(a)(6), continued to exclude from covered employment all services performed in the employ of any school district.

In addition, the legislature altered the original language of I.C. § 72-1316B. Its original language excluded from covered employment services performed in the employ of a public institution which...