Murphy v. Hurlbut Undertaking & Embalming Co.

• Decision Date: 28 June 1940
• Docket Number: 37004
• Citation: 142 S.W.2d 449,346 Mo. 405
• Parties: Andrew J. Murphy, Sr., Chairman, Edward C. Crow and Harry P. Drisler, Members of Unemployment Commission of Missouri, v. Hurlbut Undertaking & Embalming Company, a Corporation, Appellant
• Court: Missouri Supreme Court

142 S.W.2d 449

346 Mo. 405

Andrew J. Murphy, Sr., Chairman, Edward C. Crow and Harry P. Drisler, Members of Unemployment Commission of Missouri, v. Hurlbut Undertaking & Embalming Company, a Corporation, Appellant

No. 37004

Supreme Court of Missouri

June 28, 1940

Appeal from Jasper Circuit Court; Hon. Ray E. Watson Judge.

Affirmed.

Geo B. Lang and Milo A. Lang for appellant.

(1) The court erred in rendering judgment against appellant for pay roll tax contributions due only from employers of 8 or more persons for 20 weeks or more during the calendar year 1938 defendant having less than 8 people in its employ during the year 1938. (2) The court erred in finding that the appellant herein was justly indebted to plaintiff for contributions which could not be credited against any Federal tax due for the year 1938 as provided in Section 23 of the Missouri Unemployment Compensation Act. (3) The court erred in rendering judgment in favor of plaintiff, the effect of which was to declare the Missouri Unemployment Compensation Act a taxing act bi-annual in its operation, instead of an act to carry out the provisions of Title IX of the Social Security Act, each year being a separate period.

Harry G. Waltner, Jr., chief counsel, and Edward D. Summers, assistant counsel, for respondents.

(1) The Supreme Court has jurisdiction of all appeals in cases involving the construction of revenue laws of this State and in all cases where any State officer is a party. Art. 6, Sec. 12, Mo. Const.; Sec. 5, Amend. of 1884, Mo. Const. (2) The Unemployment Compensation Law imposes a tax for public purposes and is therefore a "revenue law" within the meaning of the Constitution. Secs. 2, 6, Laws 1937, pp. 574, 584; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495; Beeland Wholesale Co. v. Kaufman, 234 Ala. 249, 174 So. 518; Buckstaff Bath House Co. v. McKinley, 127 S.W.2d 802; Tatum v. Wheeless, 180 Miss. 800, 178 So. 95; State ex rel. Hadley v. Adkins, 221 Mo. 112, 119 S.W. 1091; State ex rel. Millis v. Fleming, 189 Mo.App. 261; (Id.), 275 Mo. 509, 204 S.W. 1085; Lyons v. School Dist. of Joplin, 246 S.W. 610, (Id.), 311 Mo. 349. (3) Respondents have brought this action as "state officers" within the meaning of Article 6, Section 12 of the Missouri Constitution. Sec. 5, Laws 1937, p. 580; Shelley v. Mo. Comm. for the Blind, 274 S.W. 688, 309 Mo. 612; State ex rel. Lentine v. State Board of Health, 65 S.W.2d 943, 334 Mo. 220; State ex rel. Horton v. Clark, 9 S.W.2d 635, 320 Mo. 1190; Sec. 15 (h), Laws 1939, p. 925. (4) The defendant is an employing unit and was an "employer" within the meaning of the Unemployment Compensation Law during the year 1938. Secs. 3(g), 3(h) (1) (2), (3), (4), (5), 7(b), Laws 1937, pp. 575, 576, 587; p. 576; Ludlow-Saylor Wire Company v. Wolbrink, 205 S.W. 196, 275 Mo. 639; Ex parte Asotsky, 5 S.W.2d 22, 319 Mo. 810; Hull v. Baumann, 131 S.W.2d 721; Unemployment Compensation Comm. v. Wachovia Bank & Trust Co., 2 S.E.2d 592. (5) The defendant is required to make contributions with respect to wages payable by it for employment during the year 1938. Secs. 6, 15 (a) (b), 23, Laws 1937, pp. 585, 598, 602; Howes Bros. v. Mass. Unemployment Comp. Comm., 5 N.E.2d 720; Gibson products Co. v. Murphy, 100 P.2d 453; Tatum v. Wheeless, 180 Miss. 800, 178 So. 95; Brown v. State, 323 Mo. 138, 19. S.W.2d 12; Steward Machine Co. v. Davis, 301 U.S. 548.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Plaintiffs recovered (before the court without a jury) a judgment against defendant in the sum of $ 411 alleged to be the amount owed for the year 1938, by defendant for employer contributions under our unemployment compensation law. [Laws 1937, p. 574 et seq., amended 1939 Laws 1939, p. 892 et seq.] Defendant appealed to the Springfield Court of Appeals, and that court, on motion of plaintiffs and under Sec. 1914, R. S. 1929, Ann. Stat., p. 2587, transferred the cause here on the theory that a state officer is a party. [Constitution, Sec. 12, Art. 6.]

Our jurisdiction is not especially challenged, but whether challenged or not, it is our duty to determine such question. [Perkins v. Burks et al. (Mo.), 61 S.W.2d 756; Rust Sash & Door Co. v. Gate City Bldg. Corp. et al., 342 Mo. 206, 114 S.W.2d 1023.] Section 15, subdivision (h), Laws 1939, p. 925, requires that such action as here shall be in the name of the three unemployment compensation commissioners. This suit was filed subsequent to the effective date of the 1939 amendment, and therefore was commenced in the name of the three commissioners, instead of " in the name of the commission" as provided by subdivision (b) of Sec. 15, Laws 1937, p. 599, before amendment.

Plaintiffs contend that the members of the commission are state officers within the meaning of Sec. 12, Art. 6 of the Constitution, and that jurisdiction of the appeal is in this court. "A State officer within the meaning of that section (Sec. 12, Art. 6, Const.) is one whose official duties and functions are coextensive with the boundaries of the State." [State ex rel. Foerstel et al. v. Higgins et al., 144 Mo. 410, 1. c. 412, and cases there cited, 46 S.W. 423.] Under this definition members of the State Board of Health are state officers (State ex rel. Conway v. Hiller et al., 266 Mo. 242, 180 S.W. 538; State ex rel. Lentine v. State Board of Health et al., 334 Mo. 220, 65 S.W. 943; State ex rel. Horton v. Clark et al., 320 Mo. 1190, 9 S.W.2d 635), and so are members of the commission for the blind (Shelley v. Missouri Commission For The Blind, 309 Mo. 612, 274 S.W. 688). "In order for jurisdiction to be in the Supreme Court on the ground that a state officer is a party, such officer must be a real party in his official capacity, in order to be a party within the meaning of the Constitution." [Klaber v. O'Malley (Mo.), 90 S.W.2d 396, 1. c. 397, and cases there cited.] Certainly the "duties and functions" of the members of the unemployment compensation commission are "coextensive with the boundaries of the State" and since the statute requires such suit as here, to be "in the name of the three commissioners," there is no escape from the conclusion that plaintiffs in the present case are state officers and are real parties in their official capacity. We think that jurisdiction of the present appeal is in this court, and so rule.

Plaintiff's petition was in four counts. The first count alleged that "the defendant, during the calendar year beginning on January 1, 1937, ending on December 31, 1937, had in employment under contracts for hire, eight and more individuals performing services for it for some portion of a day in each of twenty different weeks of such calendar year and that the defendant is and at all times hereinafter mentioned was an employer within the meaning of the unemployment compensation law.

"That the wages payable to all individuals by the defendant for employment occurring during the calendar quarter beginning on the 1st day of January, 1938, were in the total amount of three thousand five hundred twenty-five dollars ($ 3,525.00) and that by reason thereof, there became due and payable by and from the defendant and unto the State of Missouri and more particularly unto the unemployment compensation commission for the unemployment compensation commission fund, under and by virtue of the terms of the unemployment compensation law and under the rules and regulations of the unemployment compensation commission, on the 30th day of April, 1938, a contribution of 2.7 per cent of such wages or the sum of ninety-five dollars and eighteen cents ($ 95.18) together with interest thereon, at the rate of one per cent per month from and after said 30th day of April, 1938, until paid; that the full amount of said contribution and the interest thereon as aforesaid is now wholly due and unpaid.

"Wherefore, plaintiffs pray judgment against defendant in the sum of $ 95.18 and interest thereon at the rate of one per cent per month from and after the 30th day of April, 1938, to date and for costs of this action."

The second count, for $ 107.73, covered the calendar quarter beginning April 1st, the third count, for $ 97.88, covered the calendar quarter beginning July 1st, and the fourth count, for $ 110.21, covered the calendar quarter beginning October 1st.

In the answer, defendant admitted that "for the calendar year beginning January 1, 1937 and ending on December 31, 1937, it had in its employ eight people and was subject to title nine of the social security act (42 U.S.C. A., Sec. 1101 et seq.), and the enabling act (so called by defendant) of Missouri (Laws 1937, p. 574 et seq.) and did make its report as provided by law for the said calendar year, both to the (federal) treasury department, as provided by title nine, and to the State of Missouri as provided by the enabling or procedural act of June, 1937.

"Answering further defendant (states that it) did, at the time of filing the return due the State of Missouri, to-wit, January 20, 1938, give due and legal notice to the State of Missouri that it (defendant) was no longer subject to the provisions of either title nine or the procedural act of Missouri.

"Answering further, defendant denies that it was subject to the provisions of the procedural act, as charged in plaintiffs' petition, for any portion of the calendar year 1938, and that it is not justly or legally indebted to the State of Missouri or the unemployment compensation commission of Missouri in any amount whatsoever."

Plaintiffs, in each count, asked interest at one per cent per month, Sec. 15, Laws 1937, p. 598, but no interest was allowed.

Our unemployment compensation act (Laws 1937, p. 574 et seq.), hereinafter, for the most part, referred to as the act, in paragraph (g)...