In re Foy

• Decision Date: 04 September 1941
• Docket Number: 28240.
• Citation: 116 P.2d 545,10 Wn.2d 317
• Court: Washington Supreme Court
• Parties: In re FOY et al.

116 P.2d 545

10 Wn.2d 317

In re FOY et al.

No. 28240.

Supreme Court of Washington, En Banc.

September 4, 1941

Application by John Henry Foy and others, claimants, to the Division of Unemployment Compensation for unemployment compensation benefits, alleging that they had been in the employ of the Advance Aluminum Castings Corporation. After a ruling that the claimants were not eligible for benefits, the claimants appealed to the statutory appeal tribunal, which rendered its decision in favor of the claimants. The Advance Aluminum Castings Corporation then requested the Commissioner of Unemployment Compensation and Placement to review the action of the appeal tribunal. From an adverse decision of the Commissioner, the Advance Aluminum Castings Corporation appealed to the superior court. From a judgment of the superior court, the Commissioner appeals, and the Advance Aluminum Castings Corporation moves to dismiss appeal.

Judgment reversed, and cause remanded for further proceedings.

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

Appeal from Superior Court, Yakima County; Dolph Barnett, judge.

Smith Troy, Atty. Gen., and Lyle L. Iversen and Wm J. Millard, Jr., Asst. Attys. Gen. (Lawrence W. Thayer, of Olympia, of counsel), for Commissioner of Unemployment.

Richards Conklin & Delle, of Yakima, for respondent.

BEALS Justice.

John Henry Foy, Adolph Hepper and Emanuel A. Hepper applied to the division of unemployment compensation for unemployment compensation benefits, alleging that they had been in the employ of Advance Aluminum Castings Corporation. After a ruling that the claimants were not eligible for benefits under the unemployment compensation act, Laws 1937, chapter 162, Rem.Rev.Stat. (Sup.), § 9998-101 et seq., the claimants appealed, and the question of the claimants' eligibility was heard by the statutory appeal tribunal, which, after taking testimony, made findings of fact and rendered its decision thereon in favor of the claimants. The employer then requested the commissioner of unemployment compensation and placement to review the action of the appeal tribunal, which the commissioner did, adding one finding to the effect that the employer had employed eight or more persons for twenty weeks within 1938, and affirmed the action of the appeal tribunal. The employer then appealed from the decision of the commissioner to the superior court for Yakima county, where the case was heard upon the record, and a decision rendered, holding that claimants Adolph and Emanuel Hepper were entitled to receive benefits based upon the portion of the services which they had rendered to the employer while acting as managers, but denying them benefits upon their employment as salesmen, and denying all benefits to claimant Foy. From the judgment of the superior court, the commissioner of unemployment compensation and placement (hereinafter referred to as the commissioner) has appealed to this court.

Error is assigned upon the refusal of the superior court to confirm the decision of the commissioner; upon the action of the superior court in reviewing the factual questions presented and, as contended by appellant, in substituting its judgment on the facts for that of the statutory tribunal. Error is also assigned upon the finding of the trial court that the claimants were not entitled to receive unemployment compensation benefits based upon all of the services which they performed for Advance Aluminum Castings Corporation (herein referred to as the employer).

Respondent moves to dismiss the appeal upon two grounds: That appellant has failed to comply with the rules of this court providing for the filing and serving of a statement of facts or bill of exceptions, and in certain cases preparing and filing an abstract thereof; and that the statute does not confer upon the commissioner, who is the sole appellant herein, any right of appeal to this court from a judgment of the superior court, such as that entered in the case at bar, respondent contending as to the latter ground of its motion, that the commissioner was not aggrieved by the judgment of the superior court, which provided for the allowance of less unemployment benefits to the claimants herein than were awarded to them by the department.

As to the first ground for the dismissal of the appeal, above stated, the commissioner's record, which includes a stenographic transcript of the testimony taken Before the department, and other matters presented to the department in connection with the claim, becomes a part of the record Before the superior court, upon being filed therein after an appeal from the departmental ruling. Reid v. Department of Labor and Industries, 194 Wash. 108, 77 P.2d 589. The departmental record should be brought Before this court as part of the transcript on appeal. Rule XIV of the Rules of the Supreme Court, 193 Wash. 18-a, provides for abstracting statements of fact, and has no application to transcripts on appeal. In the case at bar, there is no statement of facts Before us, and apparently none was necessary. The motion to dismiss the appeal, as based upon the first ground above stated, is without merit.

The second ground relied upon by respondent, that the commissioner is not, under the law, entitled to appeal to this court from such a judgment as was entered by the superior court in this case, presents a more serious question.

The following portions of the act are pertinent to the question now under discussion:

Rem.Rev.Stat.(Sup.), § 9998-106(h), reads as follows: 'Appeal to Courts. Any decision of the commissioner or appeal tribunal in the absence of an appeal therefrom as herein provided shall become final thirty days after the date of notification or mailing thereof, and judicial review thereof shall be permitted only after any party claiming to be aggrieved thereby has exhausted his remedies as provided in subsections (c), (d), and (e) of this section. The commissioner shall be deemed to be a party to any judicial action involving any such decision, and shall be represented in any such judicial action by the Attorney General.'

Section 9998-106(i), after providing for appeals to the superior court, continues: 'Appeal shall lie from the judgment of the Superior Court to the Supreme Court as in other civil cases.'

Rem.Rev.Stat. § 1716, the general statute relating to appeals to the supreme court, provides: 'Any party aggrieved may appeal to the supreme court in the mode prescribed in this title from any and every of the following determinations * * *.'

The commissioner is a party to the proceeding. The question to be determined upon respondent's motion is whether or not he is an aggrieved party, and as such may appeal to this court from the judgment of the superior court.

The judgment of the superior court, from which the appeal has been prosecuted, denied all benefits to one claimant, and allowed the two others less benefits than the department awarded them. The fund, then, from which unemployment benefits are paid, was not depleted by the judgment of the superior court, in so far as it denied benefits, but will be called on to pay less by way of benefits to claimants than it was required to pay by the departmental ruling.

The effect of such a judgment of the superior court is two-fold. In the first place, it denies the right of claimants to unemployment benefits; in the second place, it in effect denies to the state, acting through the commissioner, the right to collect contributions from the employer, based upon the salaries of the employees who are held to be without the scope of the statute. It cannot, then, be positively said that the judgment does not adversely affect the compensation fund.

In an action instituted by the state for the purpose of collecting contributions from an employer, based upon the salaries of certain employees, could it be held that a judgment of the superior court to the effect that the contributions sought could not be collected for the reason that the employees referred to were not within the purview of the act, could not be brought Before this court by appeal by the state, for the reason that if the state could not collect the contributions it could not be held liable to the employees for payment of benefits, and therefore was not aggrieved by the judgment? If such be the law, judgments of the superior court might finally determine, contrary to the decision of the commissioner, questions of the greatest importance arising under the act, without any opportunity being afforded to obtain a decision of this court on the matter.

In the preamble of the act, Rem.Rev.Stat. (Sup.), § 9998-102, the legislature has declared the concern of the public with involuntary unemployment and the importance of legislation intended to lighten the burdens thereof. The preamble continues: 'Social security requires protection against this greatest hazard of our economic life. This can be provided only by application of the insurance principle of sharing the risks, and by the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment. * * * The legislature, therefore, declares that in its considered judgment the public good, and the general welfare of the citizens of this state require the enactment of this measure, under the police powers of the state, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own, and that this act shall be liberally construed for the purpose of reducing involuntary unemployment and the suffering caused thereby to the minimum.'

It is the duty of the commissioner appointed as head of the department to administer the act in accordance with its...