Murphy v. Menke

• Decision Date: 10 November 1942
• Docket Number: 38124
• Parties: Andrew J. Murphy, Sr., Elmer J. Keitel, Sr., and Harry P. Drisler, Members of the Unemployment Compensation Commission of Missouri, Appellants, v. J. W. Menke
• Court: Missouri Supreme Court

165 S.W.2d 653

350 Mo. 145

Andrew J. Murphy, Sr., Elmer J. Keitel, Sr., and Harry P. Drisler, Members of the Unemployment Compensation Commission of Missouri, Appellants, v. J. W. Menke

No. 38124

Supreme Court of Missouri

November 10, 1942

Appeal from Circuit Court of City of St. Louis; Hon. Harry F Russell, Judge.

Reversed and remanded (with directions).

George A. Rozier, Chief Counsel, and Edward D Summers, Assistant Counsel for appellants; Harry G Waltner, Jr., of counsel.

(1) The Supreme Court has jurisdiction of this cause, because the members of the Unemployment Compensation Commission are parties hereto in their official capacities as state officers. Murphy v. Hurlbut Undertaking & Embalming Co., 346 Mo. 405, 142 S.W.2d 449. (2) The respondent in this case is an employer within the meaning of the Unemployment Compensation Law and is therefore, required to make contributions as required by such law. Sec. 9423 (h) (1), R. S. 1939; Sec. 9423 (i) (6) (3), R. S. 1939; Sec. 9427, R. S. 1939. (3) The term "members of the crew of a vessel" is under Federal Admiralty authorities a technical term including only those who are employed primarily to assist in navigation, and should, therefore, be given such technical meaning. Laws 1937, pp. 574, 577; 26 U.S.C. A., sec. 1607 (4), and note, p. 407; Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086; Charles Nelson Co. v. Curtis, 1 F.2d 774; International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157; Chap. 216, 42 Stat. at L. 634, Comp. Stat. 1925, 991 (3), Federal Stat. Ann. Supp. 1922, p. 225; State of Washington v. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646; 33 U.S.C. A., sec. 901; 68 Congressional Record, 69th Congress (2d Sess.), Part 5, p. 5908 (March 4, 1927); DeWald v. Baltimore & Ohio Ry. Co., 71 F.2d 810; Diomede v. Lowe, 87 F.2d 296; South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251; Nogueira v. New York, N. H. & H. Ry. Co., 281 U.S. 128, 50 S.Ct. 303, 74 L.Ed. 754; Sec. 655, R. S. 1939; Ex parte Bethurum, 66 Mo. 545; Rose v. Franklin Life Ins. Co., 153 Mo.App. 90, 132 S.W. 613; Shore Fisheries v. Board of Review, 127 N. J. L. 87, 21 A.2d 634; Berwind-White Coal Mining Co. v. Rothensies, 45 F.Supp. 55; Puget Sound Bridge & Dredging Co. v. Unemployment Comp. Comm., 126 P.2d 37; 24 U.S.C. A., sec. 1. (4) The provision of the Unemployment Compensation Law excluding officers and members of the crew of a vessel on the navigable waters of the United States constitutes a statutory exemption from taxation, and is therefore required to be strictly construed. A. J. Meyer & Co. v. Unemployment Comp. Comm., 152 S.W.2d 184; Lucas, Superintendent of Ins. v. Murphy, 156 S.W.2d 686; Murphy v. Concordia Pub. House, 155 S.W.2d 122, 136 A. L. R. 146; Fitterer v. Crawford, 157 Mo. 51, 57 S.W. 532, 50 L. R. A. 191; State ex rel. Van Raalte v. Board of Equalization of St. Louis, 165 S.W. 1047; State ex rel. St. Louis Y. M. C. A. v. Gehner, 320 Mo. 1172, 11 S.W.2d 30; St. Louis Y. M. C. A. v. Gehner, 329 Mo. 1007, 47 S.W.2d 776.

Wilder Lucas for respondent.

(1) The showboat "Goldenrod" is a vessel within the meaning of Section 9423 (i) (6) and 42 U.S.C. A. 1107c. Internal Revenue Dept. Regulation 90, p. 8, 1 U.S.C. A., sec. 3; Internal Rev., Cumulative Bulletin 1937-2, pp. 429, 430; The Sea Lark, 14 F.2d 201; Pendleton v. Franklin, 7 N.Y. 508. (2) The term "members of a crew" as used in Section 9423 (i) (6) and 42 U.S.C. A. 1107c is used in the sense of any person serving on board a vessel contributing in any way to the operation and the welfare of the vessel or in any way forwarding her enterprise, and not in the sense of those primarily engaged in navigation as the term is used in the Longshoremens' and Harbor Workers' Compensation Act, 33 U.S.C. A., 901, 903. The report of the House Committee on the United States Unemployment Act, contained in Internal Rev., Cumulative Bulletin 1939-2, p. 607; Internal Rev. Regulation 90, p. 8; Wood Bros. Const. Co. v. Iowa U. Compensation Comm., 296 N.W. 345; Maryland Cas. Co. v. Lawson, 94 F.2d 191; 46 U.S.C. A. 713; The J. S. Warden, 175 F. 314; The Baron Napier, 249 F. 126; The Sea Lark, 14 F.2d 201; Gale v. Union Bag & Paper Co., 116 F.2d 27. (3) As used in this Act, "members of the crew" or "seamen" include orchestra leaders, bartenders, muleteers, candy vendors, and actors who are employed on vessels. The Sea Lark, 14 F.2d 201; Warner v. Goltra, 67 S.W.2d 47; Warner v. Goltra, 293 U.S. 155; 4 U. C. I. S. Benefits Service 6214; J. S. Warden, 175 F. 314; The Baron Napier, 249 F. 126; Internal Revenue Cumulative Bulletin 1937-1, p. 473; Commerce Clearing House Unemployment Service for New York, Paragraph 1368.02. (4) The construction of the words "members of the crew" as used in the Longshoremens' and Harbor Workers' Compensation Act (33 U.S.C. A. 901, 903) is limited by the decisions themselves to the words as used in that particular act and not as the term is generally used. South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 84 L.Ed. 732; Nogueira v. N. Y., N. H., & H. R. Co., 281 U.S. 128, 74 L.Ed. 754. (5) The Federal legislation dealing with Unemployment Compensation insurance was first enacted in 1935. It contained the exemption from its operation of "services performed by officers and members of the crew of a vessel on navigable waters of the United States." These words were construed in 1936 by the Internal Revenue Department in its Regulation 90 giving them the broad meaning above set forth. Only after this and in 1937 was the Missouri Unemployment Compensation Act enacted and it contained the identical wording of exemption of services of officers and members of the crew as is contained in the Federal legislation. (a) The Federal and State legislation on unemployment compensation constitute a cooperative legislative effort by state and national governments for carrying out a purpose common to both which neither could fully achieve without the cooperation of the other. A. J. Meyer & Co. v. Unemployment Comp. Comm., 152 S.W.2d 184; Sec. 9426 (k), R. S. 1939. (b) The prior interpretation, therefore, given the act by the Internal Revenue Department would certainly be persuasive, to say the least, and unless contrary to some established state policy, controlling. The Missouri Legislature in enacting this Act would, therefore, be presumed to have had the Federal Act and its interpretation in mind when enacting the State Act, particularly those parts that were incorporated verbatim. A. J. Meyer & Co. v. Unemployment Comp. Comm., 152 S.W.2d 184; Wood Bros. Const. Co. v. Iowa Comp. Comm., 296 N.W. 345.

Gantt, J. All concur except Hays, J., absent.

OPINION

GANTT

Action under the Unemployment Compensation Law to collect from defendant employer Menke a tax of $ 135.39 as contribution to the unemployment fund. The parties waived a jury. On hearing the evidence, the trial court ruled that defendant was not subject to the provisions of said law. Judgment accordingly and plaintiff members of the Unemployment Compensation Commission appealed. The facts follow:

Menke's home is in Cincinnati, Ohio. He is the owner of the towboat Winona and the showboat Goldenrod. The Goldenrod is not self-propelled. It is attached to the Winona. At least eight of the employees on the boats are actors who furnish entertainment to patrons of the showboat. The other employees are deck hands, engineer, cook and helper. The actors are paid weekly and sleep on the showboat. All the employees are served with meals on the Winona. In navigation the actors, "like everybody else," assist the deck hands during a storm on the river.

Menke conducted the Goldenrod show at Pittsburgh two years, Nashville one year and Memphis one year. The show is patronized by citizens of the city. In October, 1937, he located in St. Louis and tied the boats to the wharf at the foot of Locust Street. At that time the city claimed the show was under the jurisdiction of the theatre code of the city. The federal court enjoined the city from interfering with the show and Menke continued to conduct the same at that location. However, for one week in 1938, he conducted the show at Swartztrauber Park in Illinois and then returned to the Locust Street location in St. Louis.

Menke testified that both boats were registered at the custom house in St. Louis as a vessel under the laws of the United States, and at that time he was enrolled as captain of the same; that during the time of his location in St. Louis he was sued in admiralty for wages earned on the vessel; that libels were threatened against him both in equity and in admiralty; that the actors are admitted to the marine hospital in St. Louis; that he thinks one actor was admitted to said hospital; that the hospital recognized the actors as seamen; that he registered as a citizen of the city of St. Louis and voted in said city at the presidential election, and that he intends to move the show business from St. Louis when a favorable opportunity presents itself. The facts set forth in the above statement (including the testimony of Menke) are not in dispute.

The Federal Social Security Act of August 14, 1935, exempts from the provisions of the act "service performed as an officer or member of the crew of a vessel on the navigable waters of the United States." Our Unemployment Compensation Law, of June 17, 1937, makes the same exemption. [Par. (6), No. (3) of subsection (i), Sec. 9423, R. S. 1939.]

The parties proceed on the theory that the towboat Winona and the showboat Goldenrod may be considered a vessel within the meaning of the exemption. It follows that the only question for determination is whether or not the actors are members of the crew of the vessel within the meaning of the...