Shumaker v. State Labor Department

• Decision Date: 08 November 1941
• Docket Number: 35337.
• Citation: Shumaker v. State Labor Department, 154 Kan. 418, 118 P.2d 550 (Kan. 1941)
• Parties: SHUMAKER v. STATE LABOR DEPARTMENT et al.
• Court: Kansas Supreme Court

118 P.2d 550

154 Kan. 418

SHUMAKER v. STATE LABOR DEPARTMENT et al.

No. 35337.

Supreme Court of Kansas

November 8, 1941

Rehearing Denied Dec. 12, 1941.

Syllabus by the Court.

When a statute is susceptible of more than one construction, it must be given that construction which, when considered in its entirety, gives expression to its intent and purpose, even though such construction is not within strict literal interpretation of the statute.

Words phrases, or clauses in some part of a statute may be omitted inserted, or transferred, if, by so doing, the legislative intent may be ascertained.

Parties desiring a review in district court of a decision of the State Labor Department with regard to unemployment compensation have a 10-day interval in which to obtain such review, and that interval begins 10 days after commission's notification or mailing of its decision.Gen.St.Supp. 1939, 44-709(h, i).

The procedure for obtaining judicial review of the decisions of the State Labor Department consists in the filing of an action in the district court, and the service in such action is not required to be by service of summons, but by serving on a member of the commission, or on such person as the commission may designate, a petition by review, and by leaving with such person so served as many copies of the petition as there are defendants.Gen.St.Supp.1939, 44-709(h i).

The procedure for obtaining review in the district court of a decision of the State Labor Department concerning unemployment compensation, is governed by the Unemployment Compensation Act, and not by the common law or other statutory rules of procedure.Gen.St.Supp.1939, 44-709(f, h, i).

1.When a statute is susceptible of more than one construction it must be given that construction which, when considered in its entirety, gives expression to its intent and purpose, even though such construction is not within the strict literal interpretation of the statute.

2.Words, phrases or clauses, in some part of a statute may be omitted, inserted or transferred if by so doing the legislative intent may be ascertained thereby.

3.Subdivisions (h) and (i) of G.S.1939, Supp., 44-709, construed and held: (1)Parties desiring a review in the district court of a decision of the State Labor Department, touching unemployment compensation, have a ten-day interval in which to obtain such review by the courts and this interval begins ten days after the date of the commission's notification or mailing of its decision; (2) the procedure for obtaining such review is governed by the act pertaining to the subject of unemployment compensation and not by common law or other statutory rules of procedure; (3) the procedure for obtaining judicial review of decisions of the commission consists in the filing of an action in the district court and the service in such action is not required to be by service of summons but by serving upon a member of the commission, or upon such person as the commission may designate, a petition for review and by leaving with such person so served as many copies of the petition as there are defendants.

Appeal from District Court, Montgomery County; J. W. Holdren, Judge.

Action by J. C. Shumaker, doing business as the Shumaker Bakery, against the Kansas State Labor Department, Unemployment Compensation Division, and others, to review a decision in an unemployment compensation case.From an adverse judgment, the plaintiff appeals.

Judgment affirmed in part and reversed in part.

Jake L. Liberman, of Caney, for appellant.

Clark H. McPherson, of Topeka, and Wallace Carpenter, of Independence, for appellees.

WEDELL Justice.

This action was filed in the district court to obtain a judicial review of the decision of the state labor department in an unemployment compensation case.The state labor commissioner appeared specially in the district court and, by motion, challenged the right of review.The motion was sustained and plaintiff appeals.

We shall first take note of a matter which in nowise involves the merits of the appeal.We do so in the interest of clarity.The statuteswe will presently consider refer to the commission.The motion was filed by the state labor commissioner.In 1939the state commission of labor and industry was abolished and in its place there was established and continued a separate and distinct department to be known as the state labor department, with a chief officer who was designated as state labor commissioner.All powers, authority, jurisdiction and duties previously conferred upon the state commission of labor and industry, except those pertaining to the administration of the workmen's compensation act, were conferred upon the state labor commissioner.G.S.1939, Supp. 75-3401 and 75-3402.The provisions of the act were not otherwise changed and they employ the term "commission."In discussing the provisions of the actwe shall therefore use the language of the statutes, namely, the term "commission".

Defendant moved to dismiss the action in the district court upon two grounds which were as follows:

1."That the decision of the above-named commissioner was mailed to the plaintiff on the 19th day of December, 1940; that the petition for judicial review was filed with the clerk of this court on the 27th day of December, 1940; and that such action was prematurely filed within the meaning of G.S.1939, Supp., 44-709(h) and (i).

2."That the defendant has never been served with a summons in this case and the only pretended service has been a mailing of two copies of the petition for judicial review by the plaintiff's attorney to this defendant."

Defendant's motion was sustained on both grounds.Was the action for review in the district court prematurely commenced?At first blush the word "action" may appear inappropriately used but that is the language of the statute involved as will presently appear....