Opinion of the Justices

• Decision Date: 13 July 1949
• Docket Number: 102.
• Citation: 41 So.2d 775,252 Ala. 527
• Parties: OPINION OF THE JUSTICES.
• Court: Alabama Supreme Court

41 So.2d 775

252 Ala. 527

OPINION OF THE JUSTICES.

No. 102.

Supreme Court of Alabama

July 13, 1949

Courts 208

106 ----

Opinion of the Justices of the Supreme Court in response to questions propounded by the Senate under Code 1940, Tit. 13, § 34, as to the validity of a proposed substitute for Senate Bill No 279, amending Code 1940, Tit. 26, § 185.

SENATE RESOLUTION NO. 37

By Mr Patton

WHEREAS there is now pending in the Legislature of Alabama Senate Bill No. 279 for which a substitute is under consideration in a standing committee of this Body, a copy of which substitute is attached hereto; and

WHEREAS, said substitute would amend Section 185, Title 26, 1940 Code as amended by adding a new paragraph to said subsection; therefore BE IT RESOLVED BY THE SENATE OF ALABAMA:

That the Justices of the Supreme Court or a majority of them be requested, pursuant to the provisions of law in such cases made and provided, to render to this body their opinion as to whether said substitute is violative of any provision of the Constitution of Alabama including particularly Section 6 thereof.

I hereby certify that the above Resolution was adopted by the Senate of Alabama June 24, 1949.

(Signed) J.E. SPEIGHT

Secretary of Senate

Substitute for S. 279

A BILL TO BE ENTITLED AN ACT

To amend Section 185 of Title 26, 1940 Code, as amended by Act Number 310 of the 1943 Legislature and as further amended by Act Number 283 of the 1945 Legislature, relating to unemployment compensation.

Be it Enacted by the Legislature of Alabama:

Section 1. Section 185 of Title 26, 1940 Code as amended by Act Number 310 of the 1943 Legislature and as further amended by Act Number 283 of the 1945 Legislature is amended to read as follows:

"§ 185. EMPLOYER.--'Employer,' as used in this chapter means:

"A. Any employing unit which on each of some twenty days during the current or preceding calendar year, each day being in a different calendar week, employed in employment for some portion of the day (whether or not at the same moment of time) eight or more employees, provided, that such employment in a calendar year shall make a newly subject employer subject for all purposes as of January 1 of [252 Ala. 529] the calendar year in which such employment occurs.

"Any employing unit, engaged as a contractor or builder or subcontractor, in construction work which on each of some six days during the current calendar year, each day being in a different calendar week, employed in employment for some portion of the day (whether or not at the same moment of time) eighteen or more employees, provided, that such employment in a calendar year after December 31, 1949 shall make a newly subject employer subject for all purposes as of January 1st of the calendar year in which such employment occurs.

"B. Any employing unit which, having become an employer under this chapter, has not under sections 224 and 225 of this title ceased to be an employer subject to this chapter; or

"C. For the effective period of its election pursuant to section 225 hereof any other employing unit which has elected to become fully subject to this chapter.

"D. Any employingunit (whether or not an employing unit at the time of acquisition) which acquires the organization, trade or business or substantially all the assets thereof of another which at the time of such acquisition was an employer subject to this chapter.

"E. Any employing unit which acquires the organization, trade, or business, or substantially all the assets thereof of another employing unit (not an employer subject to this chapter) and which, if the employment record of such employing unit subsequent to such acquisition together with the employment record of the acquired unit prior to such acquisition, both within the same calendar year, would be sufficient to constitute an employing unit an employer subject to this chapter.

"F. Effective January 1, 1946, any individual or employing unit engaged in employment in this state subject for either the current or preceding calendar year to the pay roll tax imposed by section 1600 of the Federal Internal Revenue Code."

Section 2. This Act shall take effect upon its passage and approval by the Governor or its otherwise becoming law.

To the Senate of Alabama

State Capitol

Montgomery Alabama

Gentlemen:

In Senate Resolution No. 37 inquiry is made of the members of this court as to whether or not the substitute bill for Senate Bill 279, which proposes to amend § 185, Title 26, Code 1940, as amended (1947 Cum. Pocket Part, Title 26, pp. 101-102), violates "any provision of the Constitution of Alabama including particularly Section 6 thereof." The substitute bill, the subject of this inquiry, will be referred to hereinafter as the proposed bill.

As to that part of your inquiry which asks if the proposed bill violates any provision of the Constitution, we must respectfully decline to answer, as it is too broad and indefinite. Such is the established policy of the justices of this court.--Opinion of the Justices, 216 Ala. 469, 113 So. 584; Opinion of the Justices, 249 Ala. 511, 31 So.2d 721.

Section 185, Title 26, Code 1940, as amended, is a part of the unemployment compensation laws of this state. Those laws set up a comprehensive scheme for providing unemployment benefits for workers employed within the state by employers designated by the act. These employers include all who employ eight or more persons during twenty or more weeks of the year (subsec. A, § 185, Title 26, Code 1940, as amended), except those engaged in certain specified employments. § 186, Title 26, Code 1940, as amended. The unemployment compensation laws impose upon the employers the obligation to pay a certain percentage of their total monthly payrolls into the state unemployment fund, and each employee is required to contribute to the fund a certain percentage of his wages.

As presently written and as pertinent here, § 185, Title 26, Code 1940, as amended, defines employers, in subsec. A thereof, as:

"Any employing unit which on each of some twenty days during the current or preceding calendar year, each day being in a different calendar week, employed in employment for some portion of the day (whether or not at the same moment of time) eight or more employees, provided, that such employment in a calendar year shall make a newly subject employer subject for all purposes as of January 1 of the calendar year in which such employment occurs."

The proposed bill, if enacted into law, would add another paragraph to subsec. A of § 185, Title 26, as presently amended, which paragraph reads as follows:

"Any employing unit, engaged as a contractor or builder or subcontractor, in construction work which on each of some six days during the current calendar year, each day being in a different calendar week, employed in employment for some portion of the day (whether or not at the same moment of time) eighteen or more employees, provided, that such employment in a calendar year after December 31, 1949, shall make a newly subject employer subject for all purposes as of January 1st of the calendar year in which such employment occurs."

In so far as we are able to determine contractors, builders, and subcontractors are employers under the existing unemployment compensation laws if they employ eight or more employees on one day during twenty or more weeks of the calendar year. Hence, if the proposed bill is enacted into law, such employers will be placed in a class by themselves in that they will not come under the provisions of the unemployment compensation laws of this state unless they employ as many as eighteen employees on one day in six or more weeks during the calendar year.

So, your inquiry is substantially this: Does this classification violate the due process clause of § 6 of the state constitution? We point out that there is no equal protection clause in the Constitution of 1901. The equal protection clause of the Constitution of 1875 was dropped from the Constitution of 1901.--Hamilton v. Adkins, 250 Ala. 557, 35 So.2d 183; McLendon v. State, 179 Ala. 54, 58, 60 So. 392, Ann.Cas.1915C, 691. Of course, the due process and equal protection clauses of the Fourteenth Amendment are involved here, although no specific reference is made thereto in your inquiry.

While the due process and equal protection guaranties are not coterminous in their spheres of protection, equality of right is fundamental in both. Each forbids class legislation arbitrarily discriminatory against some and favoring others in like circumstances.--Beeland Wholesale Co. v. Kaufman, 234 Ala. 249, 174 So. 516; Washington Nat. Ins. Co. v. Board of Review, N.J., 64 A.2d 443. It is essential that the classification itself be reasonable and not arbitrary, and be based upon material and substantial distinctions and differences reasonably related to the subject matter of the legislation or considerations of policy, and that there be uniformity within the class.--Washington Nat. Ins. Co. v. Board of Review, supra.

In Carmichael v. Southern Coal Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245, 190 A.L.R. 1327, the Supreme Court of the United States upheld the Alabama Unemployment Compensation Act as against the attack that it violated the due process and equal protection clauses of the Fourteenth Amendment to the Federal Constitution, in that said act excluded from its coverage employers of less than eight persons and exempted from its provisions particular classes of employers.

In answer to such contentions it was said:

"(a) Exclusion of Employers of Less than Eight. Distinctions in degree, stated in terms of differences in number, have often been the target of attack, see Booth v. Indiana, 237 U.S. 391, 397, 35 S.Ct....