John P. Moriarty, Inc. v. Murphy

Decision Date16 May 1944
Docket NumberNos. 27779-27781.,s. 27779-27781.
Citation387 Ill. 119,55 N.E.2d 281
PartiesJOHN P. MORIARTY, Inc., v. MURPHY, Director of Labor. DOODY et al. v. SAME (two cases).
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Certiorari proceedings by John P. Moriarty, Inc., and R. E. Doody and others, doing business as Standard Grading & Construction Company, against Francis B. Murphy, Director of Labor, to review assessments for contributions due under the Unemployment Compensation Act. From adverse judgments, the plaintiffs appeal.

Reversed and remanded with directions.Appeals from Circuit Court, Cook County; Michael Feinberg, judge.

Whitty & McGah, of Chicago, for appellants.

George F. Barrett, Atty. Gen. (William C. Wines and Mary v. Neff, both of Chicago, of counsel), for appellee.

MURPHY, Justice.

The questions for determination in this case involve the issues raised in three appeals which have been consolidated for opinion. Cause No. 27779 is as to the liability of John P. Moriarty, Inc., to make contributions under the Unemployment Compensation Act (Ill.Rev.Stat.1943, chap. 48, par. 217 et seq.) for the year 1937, the second quarter of 1938 and all of 1939. Cause No. 27780 involves the liability of R. E. Doody, M. T. Doody and John P. Moriarty, copartners, doing business as Standard Grading and Construction Company under the same act for the same periods. The question in No. 27781 pertains to the liability of the copartnership for the second quarter of 1941. In June, 1940, the Director of Labor made a determination and assessment against the Moriarty corporation and the copartnership and gave each employer notice of such assessments. Protest notice was filed and a hearing requested. The Director's representative, appointed pursuant to section 25 (paragraph 242), heard evidence and filed a report with the Director which contained findings of facts and a recommendation of assessment the same as fixed by the Director. Each employer filed objections with the Director, which were overruled. The findings and assessments as recommended were confirmed by the Director. In a certiorari proceeding in the circuit court of Cook county, the Director's order was confirmed and judgments entered as follows: In No. 27779, against the Moriarty corporation for $513.68, in No. 27780, against the copartnership the Standard Grading and Construction Company for $1485.17, and in No. 27781, against the same copartnership for $280.49. The employers appealed their respective cases to this court. John P. Moriarty, Inc., will be referred to as Moriarty, the Standard Grading and Construction Company as Standard, and the Chatham Paving Company as Chatham.

In defining ‘employer’ paragraph (5) of subsection (e) of section 2 (Ill.Rev.Stat. 1943, chap. 48, par. 218) provides: ‘Any employing unit which together with one or more other employing units, is owned or controlled, directly or indirectly, by legally enforceable means or otherwise, by the same interests, or which owns or controls one or more other employing units directly or indirectly, by legally enforceable means or otherwise, and which if treated as a single unit with such other employing units or interests or both would be an employer under paragraph (1) of this subsection.’

The Director's representative found that, in 1937, Chatham had eight or more individuals in employment on some day or portion thereof in each of twenty or more calendar weeks; that neither Moriarty nor Standard had eight if treated as a single unit, but when either was combined with Chatham as a unit, each was liable for contributions, using its own payroll as a basis. Chatham paid contributions for all periods in question and its liability is not involved. It is the unit to which the Director contends Moriarty and Standard should be combined for the purpose of bringing them within the act.

For the year 1938, the representative found Chatham did not have the necessary minimum to bring it within the act but that having contributed in 1937 and not having given the Director notice and obtained his approval on or before January 31, 1938, of its intention to cease to be an employer, it automatically continued for the year 1938 as provided by subsection (b) section 3. Chatham paid in 1938 based on its employment experience of 1937. The representative found that if the employment experience of Moriarty or Standard was combined with Chatham, the total employment experience of either combination treated as a single unit would be less than eight; but he concluded that inasmuch as Moriarty and Standard were liable for contributions for 1937 under the method stated and did not give notice under subsection (b), section 3, their liability continued during the year 1938. However, by computation, the method of which is not clear, the liability of Moriarty and Standard was limited to the second quarter of that year.

In January, 1939, Chatham served notice of withdrawal and the Director accepted it. However, its employment experience for the year was equal to, or in excess of, the minimum and it therefore was within the act and paid contributions based on its payroll. Moriarty and Standard were brought in for that year by combining their respective employments with Chatham as was done in 1937. The assessment against Standard for the second quarter of 1941 was arrived at by the same method as followed in 1939.

It is contended that paragraph (e)(5) of section 2 above quoted is unconstitutional for the following reasons: (a) The act is a taxing statute and should therefore be strictly construed; (b) as a taxing act it lacks uniformity; (c) that it is vague and indefinite, and (d) that, as applied in this case, it deprives these employers of the equal protection of the laws. The opinion in Zehender & Factor, Inc., v. Murphy, 386 Ill. 258, 53 N.E.2d 944, was filed after these cases were taken under advisement. All the constitutional questions directed against said subsection in this case were determined in the Zehender and Factor case contrary to the contentions now made.

It is also contended that subparagraph (e)(1)(A) of section 2 is unconstitutional. The pertinent parts are that for the years 1937, 1938 and 1939 an employer is ‘any employing unit which has or had in employment eight or more individuals on some portion of a day, but not necessarily simultaneously, and irrespective of whether the same individuals, are or were employed on each such day within each of twenty or more calendar weeks, whether or not such weeks are or were consecutive, within either the current or preceding calendar year.’

In illustrating the question raised upon the foregoing provision, it is pointed out that if an employer had eight employees in 1939 (the statutory minimum at that time) and less than the minimum in 1938, he would be within the act in 1939 but not liable for 1938; but that if the number of employees for the years were reversed, that is, if he had eight or more in 1938 but less than the minimum for 1939, he would be within the act for 1939 by reason of his 1938 employment experience. It is said that the act deprives the employer in the latter illustration of the equal protection of the laws. The fixing of minimum standards by which an employer may be brought within the act is a legislative function. In prescribing such requirements, it is not bound to make the same provision for all employers but may prescribe requirements based upon factual conditions which apply to one group and not to another. So long as the classification rests on a sound basis and applies equally to all within the class it is not subject to constitutional objections. The constitutional objection made against this statute was also directed against paragraph (e)(5) of section 2 in the Zehender and Factor case and the principles announced there are controlling here.

The facts are not in dispute. The employers' final contention pertains to the application of the statute to the facts. It is argued that the evidence is insufficient to establish a common ownership and control such as is necessary to bring an employer within the act. Before considering the evidence bearing on the common-control features, reference will be made to the method adopted by the representative in fixing assessments against Moriarty and Standard for the second quarter of 1938. It appears the respective assessments were made on the theory that Moriarty and Standard were employers under the act in 1937 and since they did not give notice to withdraw under subsection (b) section 3, they continued under the act. The material parts of the subsection are that: ‘An employingunit shall cease to be an employer subject to this Act as of the first day of January of any calendar year, only if it files with the Director, prior to the 1st day of February of such year, a written application for termination of coverage, and the Director finds that the employment experience of such employer within the preceding calendar year was not sufficient to render an employing unit an employer under the provisions of paragraph (1) of Section 2, subsection (e). For the purposes of this subsection, the two or more employing units mentioned in paragraphs (2), (3), (4), or (5) of Section 2, subsection (e), shall be treated as a single employing unit.’ We do not believe the legislature intended that the subsection should be applied to an employer who had never paid contributions or been adjudged by the Director to be under the act. The statute directs that the application of withdrawal, to become effective, shall have the approval of the Director, if he shall find the employment experience of the employer for the preceding year was not sufficient to render him an employer as defined by the act. This requires a finding of fact by the Director but if the employer had not been a contributor in the preceding year, or had not been adjudged liable to make contributions, the Director would have no facts at hand from which he could make such finding. There is no...

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25 cases
  • County of Du Page v. Illinois Labor rel.
    • United States
    • Illinois Supreme Court
    • 18 d4 Dezembro d4 2008
    ...statutes, the strict meaning of words like "and" "is more readily departed from than that of other words." John P. Moriarty, Inc. v. Murphy, 387 Ill. 119, 129, 55 N.E.2d 281 (1944). Thus, if reading "and" in its literal sense would create an inconsistency in the statute or "render[ ] the se......
  • People v. Taylor
    • United States
    • United States Appellate Court of Illinois
    • 18 d5 Fevereiro d5 2022
    ...strict meaning of words like ‘and’ ‘is more readily departed from than that of other words.’ " (quoting John P. Moriarty, Inc. v. Murphy , 387 Ill. 119, 129, 55 N.E.2d 281 (1944) )); Martin v. Office of the State's Attorney , 2011 IL App (1st) 102718, ¶ 11, 355 Ill.Dec. 531, 959 N.E.2d 1264......
  • People v. Easton
    • United States
    • Illinois Supreme Court
    • 29 d4 Novembro d4 2018
    ...understood to mean "and" where necessary to effectuate the intent of the drafters. Id. ¶¶ 11-12 (citing John P. Moriarty, Inc. v. Murphy , 387 Ill. 119, 129-30, 55 N.E.2d 281 (1944) ).¶ 29 We noted that Rule 604(d) is designed to ensure that any potential errors in the entry of a guilty ple......
  • People v. Tousignant
    • United States
    • Illinois Supreme Court
    • 21 d5 Fevereiro d5 2014
    ...217 Ill.2d 481, 500, 299 Ill.Dec. 196, 841 N.E.2d 928 (2005)). But this is not always the case. In John P. Moriarty, Inc. v. Murphy, 387 Ill. 119, 129–30, 55 N.E.2d 281 (1944), for example, this court stated: “It is the settled law of this State that the words ‘or’ and ‘and’ will not be giv......
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