Kirby v. Indiana Employment Sec. Bd., No. 2--373A66

Docket NºNo. 2--373A66
Citation40 Ind.Dec. 10, 304 N.E.2d 225, 158 Ind.App. 643
Case DateDecember 10, 1973

Page 225

304 N.E.2d 225
158 Ind.App. 643
Bessie KIRBY, d/b/a Kirby Beauty Salon, and Glayds Hellmich,
d/b/a Little Charm Beauty Salon, Appellants,
v.
The INDIANA EMPLOYMENT SECURITY BOARD et al., Appellees.
No. 2--373A66.
Court of Appeals of Indiana, Third District.
Dec. 10, 1973.

Raymond B. Rolfes, William H. Robbins, Rolfes, Garvey, Walker & Robbins, Greensburg, for appellants.

[158 Ind.App. 644] Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for appellees.

Page 226

APPEAL FROM THE INDIANA EMPLOYMENT SECURITY BOARD.

HOFFMAN, Chief Judge.

This is a consolidated appeal by Bessie Kirby, doing business as Kirby Beauty Salon (Kirby), and Gladys Hellmich, doing business as Little Charm Beauty Salon (Hellmich), for a judicial review of decisions rendered by a Liability Referee of the Indiana Employment Security Board (Board) that they are liable for past contributions under the Indiana Employment Security Act.

Each appellant owns a licensed beauty shop located on the premises of gift shops which they repectively operate, but neither is a licensed beauty operator. It is their practice to lease booth space to licensed operators, with appellants supplying the necessary fixtures and large equipment and the operator supplying her own hand tools. Under the terms of the agreements, each operator agrees to adhere to professional standards of work, and to use the leased equipment with due care.

The operators pay a straight percentage of their gross receipts as rental for the space. Appellants withhold no social security or other taxes, do not have seniority rules, vacations, or sick leave, and pay no workmen's compensation for the operators. The operators make their own appointments and set their own hours, receive payment from their customers and pay to appellants a percentage of their gross receipts each week. The agreement is terminable on 30 days' written notice by either party.

Both Kirby and Hellmich were served by the Board with a notice and demand for payment of contributions as employers, plus interest and penalties, which had accrued from approximately 1968 to 1972. Each appellant protested to her individual notice and demand, and requested a hearing on such protest. The two cases were decided separately by a [158 Ind.App. 645] Liability Referee; however, Kirby and Hellmich join in this appeal from their respective adverse rullings.

The Act provides for payments to certain unemployed persons, which are financed through contributions required of those who are considered employers. Under the Act, the contributions 'accrue and become payable from each employer for each calendar year in which it is subject to this article * * * with respect to wages paid during such calendar year * * *.' IC 1971, 22--4--10--1, Ind.Ann.Stat. § 52--1534 (Burns Cum.Supp.1973). 1 Kirby and Hellmich must come within this portion of the Act to be liable at all for contributions under the Act. Necessarily, then, a construction of this portion of the Act either subjecting them to, or excluding them from, its terms must be made.

When construing a statute, the primary objective is to ascertain and effectuate the general intent of the Act, if possible. Engle v. City of Indianapolis (1972), Ind.App., 279 N.E.2d 827, 29 Ind.Dec. 602 (transfer denied). In the case at bar, the intent of the Act is best discovered by first examining the definitions the Legislature has supplied for the terms used in the Act. These definitions are binding on the court in making its construction of the Act, unless they are repugnant to the manifest intention of the Legislature. Town of Kewanna etc. v. Ind. Emp. Sec. Bd. (1961), 131 Ind.App. 400, 404, 171 N.E.2d 262.

The above quoted section of the Act requires contributions from 'employer.' The relevant portion of the Legislature's definition of this term reads as follows:

'ARTICLE VII--Employers

"Employer' * * * defined.--Prior to January 1, 1972, 'employer' means any

Page 227

employing unit which * * * has or [158 Ind.App. 646] had in employment, and/or has incurred liability for wages payable to, four (4) or more individuals * * *, and subsequent to December 31, 1971, * * * 'employer' means any employing unit which * * * has or had in employment, and/or...

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15 practice notes
  • In re Network Associates, Inc. Securities Litig., No. C 99-01729 WHA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • November 22, 1999
    ...Bank, 510 U.S. 86, 114 S.Ct. 517, 126 L.Ed.2d 524 (1993) ................................ 6 Kirby v. Indiana Employment Security Board, 158 Ind.App. 643, 304 225 (3 Dist.1973) ........................................................ 8 LaBelle v. State Employees Retirement System, 265 Ill.Ap......
  • Economy Oil Corp. v. Indiana Dept. of State Revenue, No. 1--574A80
    • United States
    • December 30, 1974
    ...Wayne Township v. Lutheran Hospital (1974), Ind.App., 312 N.E.2d 120; Kirby v. Indiana Employment Security Board (1973), Ind.App., 304 N.E.2d 225; Morgan City R.E.M.C., supra; Thompson v. Thompson (1972), Ind., 286 N.E.2d 657. Similarly, the spirit of an enactment will prevail over the lett......
  • Loza v. State, No. 3-573A55
    • United States
    • Indiana Court of Appeals of Indiana
    • September 23, 1974
    ...of the Legislature. State v. Gilbert (1966), 247 Ind. 544, 219 N.E.2d 892; Kirby v. Indiana Employment Security Board (1973), Ind.App., 304 N.E.2d 225, 40 Ind.Dec. 10. When a court undertakes to ascertain and effectuate that intent, it should be guided by the principles 'a statute must be r......
  • Indiana Alcoholic Beverage Commission v. Osco Drug, Inc., No. 1-1180-A-318
    • United States
    • Indiana Court of Appeals of Indiana
    • February 18, 1982
    ...Wayne Township v. Lutheran Hospital (1974), 160 Ind.App. 427, 312 N.E.2d 120; Kirby v. Indiana Employment Security Board (1973), 158 Ind.App. 643, 304 N.E.2d 225; Morgan City R. E. M. C., supra; Thompson v. Thompson (1972), 259 Ind. 266, 286 N.E.2d 657. Similarly, the spirit of an enactment......
  • Request a trial to view additional results
15 cases
  • In re Network Associates, Inc. Securities Litig., No. C 99-01729 WHA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • November 22, 1999
    ...Bank, 510 U.S. 86, 114 S.Ct. 517, 126 L.Ed.2d 524 (1993) ................................ 6 Kirby v. Indiana Employment Security Board, 158 Ind.App. 643, 304 225 (3 Dist.1973) ........................................................ 8 LaBelle v. State Employees Retirement System, 265 Ill.Ap......
  • Economy Oil Corp. v. Indiana Dept. of State Revenue, No. 1--574A80
    • United States
    • December 30, 1974
    ...Wayne Township v. Lutheran Hospital (1974), Ind.App., 312 N.E.2d 120; Kirby v. Indiana Employment Security Board (1973), Ind.App., 304 N.E.2d 225; Morgan City R.E.M.C., supra; Thompson v. Thompson (1972), Ind., 286 N.E.2d 657. Similarly, the spirit of an enactment will prevail over the lett......
  • Loza v. State, No. 3-573A55
    • United States
    • Indiana Court of Appeals of Indiana
    • September 23, 1974
    ...of the Legislature. State v. Gilbert (1966), 247 Ind. 544, 219 N.E.2d 892; Kirby v. Indiana Employment Security Board (1973), Ind.App., 304 N.E.2d 225, 40 Ind.Dec. 10. When a court undertakes to ascertain and effectuate that intent, it should be guided by the principles 'a statute must be r......
  • Indiana Alcoholic Beverage Commission v. Osco Drug, Inc., No. 1-1180-A-318
    • United States
    • Indiana Court of Appeals of Indiana
    • February 18, 1982
    ...Wayne Township v. Lutheran Hospital (1974), 160 Ind.App. 427, 312 N.E.2d 120; Kirby v. Indiana Employment Security Board (1973), 158 Ind.App. 643, 304 N.E.2d 225; Morgan City R. E. M. C., supra; Thompson v. Thompson (1972), 259 Ind. 266, 286 N.E.2d 657. Similarly, the spirit of an enactment......
  • Request a trial to view additional results

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