R. C. Huffman Const. Co v. Unemployment Comp. Comm'n

• Decision Date: 14 January 1946
• Citation: 184 Va. 727,36 S.E.2d 641
• Court: Virginia Supreme Court
• Parties: R. C. HUFFMAN CONST. CO. v. UNEMPLOYMENT COMPENSATION COMMISSION.

36 S.E.2d 641

184 Va. 727

R. C. HUFFMAN CONST. CO.

v.UNEMPLOYMENT COMPENSATION COMMISSION.

Supreme Court of Appeals of Virginia.

Jan. 14, 1946.

Appeal from Circuit Court of City of Richmond; Julien Gunn, Judge.

Petition by the R. C. Huffman Construction Company to review a decision of the Unemployment Compensation Commission of Virginia requiring the petitioner to make contributions under the Unemployment Compensation Act. From an adverse decree, the petitioner appeals.

Affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

O. R. McGuire, of Washington, D. C, for appellant.

Abram P. Staples, Atty. Gen., and Kenneth C. Patty, Asst. Atty. Gen., for appellee.

EGGLESTON, Justice.

This appeal involves the question whether the services performed by certain employees of The R. C. Huffman Construction Company are within the provisions of the Virginia Unemployment Compensation Act, ¹ so as to render the Company liable for the pay-roll taxes for the year 1943, and the subsequent years, on the wages of such employees under section 7 of the Act, as amended. Michie's Code of 1942 and 1944 Supp. § 1887(99).

Section 2 of the Act (as amended by Acts 1938, ch. 446, p. 1004, Acts 1940, ch. 333, p. 538, Acts 1942, ch. 317, p. 446) reads as follows:

"Section 2. Definitions.--As used in this act, unless the context clearly requires otherwise:

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"(j) (7) The term 'employment', after December thirty-first, nineteen hundred and thirty-nine, shall not include:

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"(F) Service performed as an officer or member of the crew of a vessel on the navigable waters of the United States."

The primary question presented to us is whether the service of the employees of this Company are within this exception and hence excluded from the provisions of the Act. Incidentally, we are likewise concerned with the 1944 amendment to the section. Acts 1944, ch. 181, at page 230.

The Unemployment Compensation Commission held that such service was not within the exception, and the Circuit Court of the city of Richmond affirmed this holding. Hence this appeal.

The matter was before the Unemployment Compensation Commission on an extended stipulation of facts, the material portion of which may be summarized thus:

The R. C. Huffman Construction Company, hereinafter called the Company, for a number of years has been engaged in dredging operations in the navigable waters of the United States and within the territorial limits of the Commonwealth of Virginia, under a contract with the United States Government. Such operations consist of deepening, widening, and improving the harbors and channels in the Hampton Roads area. For this purpose the Company employs several hydraulic and bucket dredges, with auxiliary barges and tugboats.

The material removed by the hydraulic dredges is either deposited, by means of pipes, on land or in the water elsewhere in the area, or is deposited by the dredges in scows and towed by tugs for deposit in deeper water. The deposit area, in some instances, is only a short distance from the dredges. In others, the material must be carried a distance of twenty-five or more miles.

The material removed by the bucket dredges is deposited in scows, from which it is dumped either on land or in deeper water in a manner similar to that in which the material from the hydraulic dredges is disposed of.

Both types of dredges are moved to the site of their work by means of tugs, but both types are moved from place to place on the site under their own power.

All of the dredges, tugboats and scows are registered vessels of the United States. They carry consolidated enrollment and license certificates and observe the navigation rules which apply to all vessels operating in the coastal waters of the United States.

Some, but not all, of the dredges have both eating and sleeping accommodations for those employed thereon.

The scows or barges are not self-propelled, but are towed by tugboats.

Since the Unemployment Compensation Commission held that the service of theemployees of the Company on tugboats is within the terms of the exception, and hence not covered by the Act, we have no further concern with these employees. Our inquiry involves only the employees on the dredges and scows.

Each dredge is under the command and in charge of a captain who is the superior officer of the other employees thereon. Inasmuch as the operation of the dredges may involve other vessels, the captains of the dredges are required to have a thorough knowledge of marine signals, navigation lights, and rules of the road.

Next in authority on the dredges are levermen who supervise the actual hydraulic or cutting operation of the machines.

On each dredge there are engineers and firemen. The engineers have charge of the opration and maintenance of the machinery employed in the dredging operations. The firemen fire, operate, and maintain boilers which furnish steam for the operation of the respective dredges.

On each dredge there is a man who is in charge of the deck hands. The deck hands clean and repair the dredge, assist in removing its anchors, maintain the pipe lines through which the material is pumped from hydraulic dredges, and generally do such labor as may be necessary in dredging operations.

On each scow of barge are one or more scowmen who assist in making fast and disengaging the towlines by which the scows are towed between the site of the dredging operations and the dumping grounds. Incidentally, these men operate the pumps which pump out the bilges of the scows.

The cooks and messboys prepare, cook and serve food to the men on the dredges and scows.

It is further stipulated that these employees "receive all the benefits of seamen under the laws of the United States, and are classified as seamen."

The stipulation does not disclose whether these employees signed seamen's articles with the respective dredges on which they were employed. Presumably they did not.

The Attorney General concedes that each of these dredges and scows, thus employed, was "a vessel on the navigable waters of the United States" within the definition of section 2 (j)(7)(F) of the Act, but he insists that the work done by each of these employees was not "service performed as an officer or member of the crew" within the definition. In order to come within the exclusion, he says, the service must "substantially tend to promote the welfare of the vessel as an agency of navigation"; that the service of these individuals, while maritime in character, was not incidental to navigation, but was incidental to the construction of a channel through the navigable waters of the United States within the territorial limits of the State.

This view, in effect, both the Unemployment Compensation Commission and the Circuit Court of the city of Richmond upheld.

The appellant, on the other hand, contends that since these men were employed on vessels on the navigable waters of the United States, are "classified as seamen, " and are entitled to all of the benefits as such, under the Federal statutes and decisions, they are members of the crew of the respective vessels on which they are employed within the meaning of our statute.

The appellant first says that it is the function of the Federal government to define what types of floating equipment are "vessels", and what employees thereon are "seamen" and "members of the crew"; that under various Federal statutes and numerous decisions of the United States courts, such employees as those with whom we are here concerned are classified and recognized as "seamen" and "members of the crew", and are given certain valuable benefits as such; and that a State statute which fails to conform to such interpretation is unconstitutional in that it encroaches upon the "admiralty and maritime Jurisdiction" granted exclusively to the Federal courts under Article III, § 2, of the Constitution of the United States.

This contention was, we think, definitely set at rest in the recent case of Standard Dredging Corp. v. Murphy, 319 U.S. 306, 63 S.Ct. 1067, 87 L.Ed. 1416, which upheld the constitutionality of the New York Unemployment Compensation Act. This Act contained no provision similar to that in the Virginia Act, exempting the service of a "member of the crew of a vessel", and was, therefore, broad enough to include such, provided these employees were engaged primarily in maritime work in the territorial waters of that State. The court pointed out (319 U.S. at pages 308, 309, 63 S.Ct. at pages 1068, 1069, 87 L.Ed. 1416) that the State statute, in levying a tax uponthe employers of these maritime workers in order to provide relief in case of their unemployment, in no way infringed upon the admiralty and maritime jurisdiction of the Federal courts. It distinguished the case of Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, L. R.A.1918C, 451, Ann.Cas.l917E, 900, which invalidated a New York Workmen's Compensation Act in so far as it deprived a maritime employee of his right to recover in admiralty for his injuries and relegated him to the State Act for relief.

Moreover, it was held in the Standard Dredging Corp. case, 319 U.S. at pages 310, 311, 63 S.Ct. at pages 1069, 1070, 87 L.Ed. 1416, that the fact that the Federal Unemployment Tax Act, 26 U.S.C.A. Int.Rev. Code, § 1607(c)(4), exempts from the Federal tax employers of "an officer or member of the crew of a vessel on the navigable waters of the United States" does not operate to exempt them from State unemployment insurance taxes.

The appellant next argues that in exempting from the operation of the statute "service performed as an officer or member of the crew of a vessel, " the General Assembly was using the words "officer or member of the crew" as they are defined in the various Federal Statutes and decisions. It relies mainly upon the recent decision of Norton v. Warner Company, 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931, in which it was held that a bargeman,...