Mulhausen v. Bates

• Decision Date: 21 June 1941
• Docket Number: 28309,28251.
• Citation: 9 Wn.2d 264,114 P.2d 995
• Parties: MULHAUSEN v. BATES, Commissioner of Unemployment Compensation and Placement. STATE ex rel. MULHAUSEN v. SUPERIOR COURT FOR THURSTON COUNTY et al.
• Court: Washington Supreme Court

114 P.2d 995

9 Wn.2d 264

MULHAUSEN v. BATES, Commissioner of Unemployment Compensation and Placement.

STATE ex rel. MULHAUSEN v. SUPERIOR COURT FOR THURSTON COUNTY et al.

Nos. 28309, 28251.

Supreme Court of Washington

June 21, 1941

Department 1.

No 28251: Original Writ of Prohibition.

Proceeding by Robert Bruce Farmer for unemployment compensation against R. W. Mulhausen, wherein Jack E. Bates, as Commissioner of Unemployment Compensation and Placement of the State of Washington, affirmed decision of the appeal tribunal in favor of claimant, whereupon R. W. Mulhausen appealed to the Superior Court and also filed a bill in equity and petitioned for a declaratory judgment in the Superior Court which struck out such bill and petition, and affirmed decision in favor of the claimant, from which judgment R. W. Mulhausen appealed. His appeal was consolidated with an original application by the State of Washington, on the relation of R. W. Mulhausen against the Superior Court of the State of Washington for Thurston County and the Honorable John M. Wilson, one of the judges thereof, and Jack E. Bates as Commissioner of Unemployment Compensation and Placement of the State of Washington for certiorari and prohibition.

Order in accordance with opinion.

No 28309: Appeal from Superior Court, Thurston County; John M. Wilson, Judge.

C. P. Borberg, of Seattle, for relator and appellant in both actions.

Smith Troy and William J. Millard, Jr., both of Olympia, for respondents.

BLAKE Justice.

Pursuant to Rem.Rev.Stat.Supp., § 9998-106, Robert Bruce Farmer filed claim for unemployment compensation. According to the claim, his last employer was R. W. Mulhausen, an individual doing business as R. W. Mulhausen Company, of Portland, Oregon, for whom he had been working as a salesman of oleomargarine. He was separated from his employment October 31, 1938. Parenthetically, it should be said here that he was discharged for misappropriation of funds belonging to Mulhausen.

The claim was disallowed on the ground that Farmer was not eligible for compensation, with the notation 'No Wage Record.' From this 'Initial Determination', Rem.Rev.Stat.Supp., § 9998-106(b), Farmer took an appeal to an 'Appeal Tribunal'. Rem.Rev.Stat.Supp., § 9998-106(d).

The matter came up for hearing Before the appeal tribunal September 19, 1939. After some evidence had been received, the hearing was continued, and was resumed November 4, 1939. Mulhausen was represented by counsel on both occasions. The principal question presented for determination by the appeal tribunal was whether the relationship of employer and employee existed between Mulhausen and Farmer in contemplation of the definition of employment contained in the statute. Rem.Rev.Stat.Supp., § 9998-119(g)(5). At the outset of the hearing, the appeal examiner stated:

'This supplemental determination was received by Mr. Farmer on August 15, 1939, and the appeal taken states that the claimant is a resident of Washington, was employed in Washington by R. W. Mulhausen Company from January 1, 1938 to November 1, 1938, that wages earned while thus employed do not appear on the claimant's determination, although this employer had over 80 employees in Washington over 20 weeks in 1938, and although claimant was under the control and direction of R. W. Mulhausen Company and although the services were performed in the usual course of business of that company, the claimant was not engaged in an independently established business.'

And Mr. Borberg, counsel for Mulhausen, said: 'I would like the record to show that while R. W. Mulhausen Company appears here, they don't concede nor consent to their designation as an employer. Rather the attitude of the company is that there is no relationship of employee and employer that has ever existed between it and the appellant.'

To facilitate the hearing, however, Mr. Borberg later stipulated: 'The R. W. Mulhausen Company stipulates that during all of the years of 1937 and 1938, there were during each of 20 weeks more than eight, not employees, but agents of the same class as the claimant in this case, performing the same services in the same manner and pursuant to the same contract as this claimant.'

Thus, the necessity of proving that element of the definition of 'employer' under the act was obviated. Rem.Rev.Stat.Supp., § 9998-104(e), 9998-119(f).

At the close of the hearing on November 4th, the following colloquy occurred between the appeal examiner and Mr. Borberg:

'Examiner Preston: We would prefer on questions of law to have that briefed. Would you care to prepare a brief prior to a decision on the matter? 'Mr. Borberg: If the examiner desires it, I will brief it and file the brief. I would like to have time on it because I won't be able to do it within less than 15 days on account of other business. * * *

'Examiner Preston: Very well. The hearing will stand adjourned and the company will submit a brief on the questions of law within that time. A copy of the brief will be forwarded to the appellant and further time, if necessary, permitted for the appellant to submit a reply.'

The appeal tribunal made its findings of fact and decision on November 13, 1939, without affording counsel the time stipulated for filing a brief. The decision was to the effect that Farmer was an employee of Mulhausen within the meaning of the act, Rem.Rev.Stat.Supp. § 9998-119(g)(5)(i), employed under identical contracts and employed under identical contracts and performing similar services for Mulhausen in this state are 'deemed to have been in employment subject to the Act'; that Mulhausen, 'in each of twenty different weeks within the years 1937 and 1938, had in employment eight or more individuals' in this state, and 'is a subject employer' under the act; and that Farmer is eligible for benefits under the act.

Pursuant to Rem.Rev.Stat.Supp., § 9998-106(e), Mulhausen petitioned to the commissioner of unemployment compensation for review of the decision of the appeal tribunal on the following grounds: 'That the findings of fact are contrary to the evidence, and the decision contrary to the law and the evidence in that the said claimant and all others in the class of which he was a member during the period of his socalled employment was and were independent contractors and not employees; and further, for the reason that the proceedings in relation to said matters concern only the claim of the said Robert Bruce Farmer, and that the Appeal Examiner was without jurisdiction to make the determination which was made, or any determination as to the liability of the so-called employer in respect of other individuals.'

The petition for review was filed November 20, 1939. On November 30, 1939, the commissioner affirmed the decision of the appeal tribunal. From the decision of the appeal tribunal and the order affirming it, Mulhausen appealed to the superior court and, at the same time, filed a bill in equity and petition for a declaratory judgment. By this independent proceeding, Mulhausen sought an injunction against the commissioner to restrain him from collecting any sums of money from him as an employer under the act; a reversal of the findings and decision of the appeal tribunal; a decree adjudging that the relationship of Farmer to him was that of an independent contractor and not that of an employee in contemplation of the act.

Upon motion of the commissioner, the superior court struck this bill in equity and petition for a declaratory judgment, and proceeded to hear the matter on appeal in accordance with the provisions of Rem.Rev.Stat.Supp., § 9998-106(i). After a hearing of the matter on appeal, the superior court entered judgment affirming the order of the commissioner affirming the findings and decision of the appeal tribunal.

From that judgment, Mulhausen has appealed to this court. He has also made an original application for certiorari and prohibition to this court, by which he seeks a review of the proceedings had Before the department and the superior court and to restrain both the court and the department from proceeding further in the matter.

Before discussing the main issue, it is necessary to dispose of the questions raised by the application to this court for certiorari and prohibition and by the so-called bill in equity and petition for a declaratory judgment in the superior court.

First. Neither certiorari nor prohibition lies to the superior court, when acting within its jurisdiction, if there is an adequate remedy by appeal. Rem.Rev.Stat. § 1002, 1028. State ex rel. Miller v. Bell, 157 Wash. 279, 289 P. 25; State ex rel. Ernst v. Superior Court, 198 Wash. 133, 87 P.2d 294. The Unemployment Compensation Act, Rem.Rev.Stat.Supp., § 9998-106(i), specifically provides: 'Appeal shall lie from the judgment of the Superior Court to the Supreme Court as in other civil cases.' Since the statute specifically affords an adequate remedy by appeal, the application for writs of certiorari and prohibition will be denied.

Second. Likewise, the courts will not entertain a bill in equity nor a petition for a declaratory judgment designed to call for decision of a case for the determination of which a special statutory method has been provided. Borchard, Declaratory Judgments, 156; Bradley Lumber Co. v. National Labor Relations Board, 5 Cir., 84 F.2d 97. Borchard says:

'Where, however, a special statutory method for the determination of the particular type of ease has been provided, it is not proper to permit that issue to be tried by declaration. This would amount to ousting of its jurisdiction a statutory court prescribed for the particular case, and it was not intended that a declaration should be employed for such a purpose.'

The Unemployment...