Hickenbottom v. McCain

• Decision Date: 19 June 1944
• Docket Number: 4-7383
• Citation: 181 S.W.2d 226,207 Ark. 485
• Parties: Hickenbottom v. McCain, Commissioner of Labor
• Court: Arkansas Supreme Court

181 S.W.2d 226

207 Ark. 485

Hickenbottom v. McCain, Commissioner of Labor

No. 4-7383

Supreme Court of Arkansas

June 19, 1944

Appeal from Boone Chancery Court; J. M. Shinn, Chancellor.

Affirmed.

Charles M. Haft, for appellant.

Luke Arnett, for appellee.

Smith Justice. Holt, J., nonparticipating.

OPINION

Smith Justice.

At the 1941 session of the General Assembly, Act No. 391 was passed entitled: "An Act to Create the Employment Security Division in the Department of Labor; . . ." Acts of 1941, p. 1098, et seq. This legislation superseded and by § 21 thereof expressly repealed two prior Acts on the same subject, these being Act 155 of the Acts of 1937 and Act 200 of the Acts of 1939 amending Act 155. This litigation challenges the constitutionality of Act 391 as being violative of both the state and federal constitutions. The grounds upon which Act 391 is attacked would have been equally applicable to the question of the validity of the prior legislation. This Act 391 extends from page 1089 to page 1154, both inclusive, of the Acts of 1941, but the disposition of this appeal does not require an analysis of its provisions, and we shall refer only to those provisions of the Act which it is urged render it unconstitutional.

As is well known, and as was said in former opinions by this court, construing the legislation which Act 391 supersedes, the Acts were passed to conform to the federal legislation on the same subject, which imposed certain taxes upon employers of labor with certain exceptions not important here to consider. This federal legislation imposed a tax which was collectible throughout the nation whether the states thereof enacted legislation supplementary and complementary to it or not, but permitted those states which did pass such legislation to retain a fixed portion of the taxes, all of which would otherwise have been payable to the federal government. Buckstaff Bath House Co. v. McKinley, Commr., 198 Ark. 91, 127 S.W.2d 802. It is said that, thus induced, all the states have passed legislation on the subject, and it is said also that the constitutionality of such legislation has been uniformly upheld by both the state and federal courts, at least against such attacks as are made upon Act 391.

It is here urged that the Act violates the equal protection and due process clauses of the 14th Amendment to the Federal Constitution, but this contention is definitely and adversely disposed of by the opinion of the Supreme Court of the United States in the case of Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245, 109 A. L. R. 1327, and also upon the appeal to that court from the decision of this court in the Buckstaff case, supra, to which case further reference will later be made, where it was said: "We agree with the Supreme Court of Arkansas that the state had jurisdiction to impose the tax in question." Buckstaff Bath House Co. v. McKinley, Commr., 308 U.S. 358, 60 S.Ct. 279, 84 L.Ed. 322.

In our opinion in the Buckstaff case, supra, it was said that "we must first determine whether collection of the taxes levied by Act 155 (of the Acts of 1937) is a legitimate exercise of the state's governmental functions." After citing and reviewing the decisions of the Supreme Court of the United States in the cases of Stewart Machine Company v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279, 109 A. L. R. 1293, and the Carmichael case, supra, we said: "Although constitutionality of the Arkansas statute is not directly questioned in the appeal before us, this is the first case reaching this court in which payment of the tax is involved. Necessarily if we hold that appellant must pay the state's demand, we have upheld the validity of Act 155. For this reason the decisions quoted from have been cited." It was held that the tax must be paid, thereby upholding the constitutionality of the Act.

The opinion in the Carmichael case, supra, involved the constitutionality of a statute of the state of Alabama, which was there upheld, and in the footnote to the opinion of this court in the Buckstaff case, supra, there appears the statement that, "the Arkansas Unemployment Compensation Law is said to be almost identical with the Alabama law."

The case of McKinley, Commr. of Labor, v. R. L. Payne & Son Lbr. Co., 200 Ark. 1114, 143 S.W.2d 38, arose under and involved the construction of certain portions of amendatory Act No. 200, of the Acts of 1939, and it was there said: ". . . But the constitutionality of this particular Act was definitely settled in the case of Buckstaff Bathhouse Co. v. McKinley, Commr., supra."

It is argued that neither of these opinions by this court is conclusive of the constitutionality of Act 391 of the Acts of 1941, for the reason that the objections to the constitutionality of Act 391 here raised were not raised or considered in either of the prior cases arising under Act 155 of 1937 and Act 200 of the Acts of 1939.

This is true, and we, therefore, consider the objections to Act 391 of the Acts of 1941. But before doing so we will dispose of a motion made in the court below and insisted upon here. This appeal is from the decree of the court below dismissing the case for lack of jurisdiction, and an objection to the jurisdiction sustained by the court below was and is that this is a suit against the state and is, therefore, in contravention of § 20, art. V, of the Constitution, which provides that "the state of Arkansas shall never be made defendant in any of her courts." The purpose of this suit is to restrain the officers provided for by Act 391 from discharging the duties imposed upon them by the Act in the collection of the taxes which it imposes, and it is, therefore, insisted that the suit is in effect one against the state, although the state is not a nominal party.

Among the other and latest cases cited in support of this contention is that of Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235, which, in turn, cites our leading cases on the subject. That was the case in which it was sought to enjoin the State Treasurer from paying warrants issued by the Auditor of the State in favor of certain county assessors, who had agreed that a per cent. of their official fees, payable to the state, should be paid to the plaintiffs who sought to enjoin the State Treasurer from paying these warrants to the assessors, with whom they had contracted. We held that the action was in effect an equitable garnishment against the State Treasurer, relating to funds belonging to the state, and was, therefore, a suit against the state. We there quoted and approved a statement from 59 C. J. 307, reading as follows: "Accordingly it is well settled, as a general proposition, that, where a suit is brought against an officer or agency with relation to some matter in which defendant represents the state in action and liability, and the state, while not a party to the record, is the real party against which relief is sought so that a judgment for plaintiff, although nominally against the named defendant as an individual or entity distinct from the state, will operate to control the action of the state or subject it to liability, the suit is in effect one against the state and cannot be maintained without its consent . . ."

This opinion in the Page case, supra, cites a number of our opinions on this subject and among others the case of Pitcock v. State, 91 Ark. 527, 121 S.W. 742, 134 Am. St. Rep. 88, which may be termed our leading case upon the subject. This Pitcock case overruled the previous decision of this court in the case of McConnell v. Arkansas Brick Company, 70 Ark. 568, 69 S.W. 559, which related to the same contract, one for the hire of state convicts. It was held in the McConnell case that the suit was not one against the state, while in the Pitcock case it was held that the suit was against the state. After reviewing a number of cases, including decisions by the Supreme Court of the United States, it was said of these cases that: "The only distinction found in these cases is that where the suit is against an officer to prevent him from doing an unlawful act to the injury of the complaining party, such as the taking or trespass upon the property belonging to the latter, the former cannot shield himself behind the fact that he is an officer of the state; and also where the officer refuses to perform a purely ministerial act, the doing of which is imposed upon him by statute. In either of such cases a suit against such an officer is not a suit against the state."

The instant suit is predicated upon the theory and allegation that certain officers, under the purported authority of an Act which is unconstitutional and, therefore, void, are about to take the plaintiff's property by imposing a tax, which when imposed becomes a lien upon it. But if the relief prayed is granted no obligation is imposed upon the state. It is, therefore, not a suit against the state. The opinion in McCain, Commr. of Labor, v. Crossett Lumber Co., 206 Ark. 51, 174 S.W.2d 114, cites a number of cases to the same effect.

It is argued that inasmuch as the Act creates a Department of Labor which is placed under the supervision of an officer designated as the Commissioner of Labor, who is charged with the enforcement of the provisions of the Act, it is violative of the following provisions of our Constitution, to-wit: Section 1, art. IV; § 1, art. V; § 1, art. VI; art. VII, and § 9 of art. XIX.

We will consider these objections to Act 391 collectively, but before doing so we may say here, as was said in the case of Bush v. Martineau, 174 Ark. 214, 295 S.W 9, that: "Before proceeding to a discussion of the issues raised by this appeal, we deem it proper to premise our remarks by two fundamental...