State Ex Rel. Boone County Coal Corp. v. Davis

• Decision Date: 13 December 1949
• Docket Number: No. 10223.,10223.
• Citation: 56 S.E.2d 907
• Parties: STATE ex rel. BOONE COUNTY COAL CORPORATION . v. DAVIS.
• Court: West Virginia Supreme Court

56 S.E.2d 907

STATE ex rel. BOONE COUNTY COAL CORPORATION .

v.DAVIS.

No. 10223.

Supreme Court of Appeals of West Virginia.

Submitted Nov. 15, 1949.

Decided Dec. 13, 1949.

Original proceeding in mandamus by the State, on the relation of the Boone County Coal Corporation, against C. S. Davis, Director of Employment Security, to fix relator's rate of contribution to the unemployment compensation fund for the calendar year 1949 at.7% of its total payroll and to accept settlement for the year of 1949 of such basis.

The Supreme Court of Appeals, Riley, J., held that the relator having defaulted in filing a payroll report and in making payments required him on a specified date, was on written notice of assessment by security director, entitled to redetermination by director of contribution rate on the filing by the relator of a correct and sufficient report within 30 days after receipt of such notice of assessment and that it was the director's duty to determine relator's rate on the basis of relator's actual employment experience and awarded a writ of mandamus as prayed for in petition.

Syllabus by the Court.

1. The proviso contained in Subsection (3), Section 7, Article 5, Chapter 162, Acts of the Legislature, Regular Session, 1947: "Provided, however, That if an employer has failed to furnish to the director on or before July thirty-one of such preceding calendar year the wage information for all past periods necessary for the computation of the contribution rate such employer's rate shall be two and seven-tenths per cent; * * *", is mandatory, and when an employer, subject to the un-employment compensation law of this State, through inadvertence has defaulted in filing a report and making the payment required of him on a specified date, it is the duty of the director, without regard to the employer's actual experience, to assess the employer's contribution to the fund on the basis of 2.7 per cent.

2. Subsection (1), Section 17-a, Article 5, Chapter 76, Acts of the Legislature, Regular Session, 1943, with respect to the right of an employer to have an allegedly erroneous contribution assessment redetermined upon application made within thirty days after notice of such assessment shall have been given to the employer, has not been repealed by the enactment of Subsection (3), Section 7, Article 5, Chapter 162, Acts of the Legislature, Regular Session, 1947.

3. The first proviso in Subsection (3), Section 7, Article 5, Chapter 162, Acts of the Legislature, Regular Session, 1947, "That if an employer has failed to furnish to the director on or before July thirty-one of such preceding calendar year the wage information for all past periods necessary for the computation of the contribution rate such employer's rate shall be two and seven-tenth per cent: * * *", and Subsection (1), Section 17-a, Article 5, Chapter 76, Acts of the Legislature, Regular Session, 1943, relating to summary assessments and redetermination thereof, should be read and interpreted in pari materia, and when so read the statutes should be interpreted so that, when an employer, subject to the unemployment compensation law of this State, through inadvertence, has defaulted in filing a report and making the payment required of him on the specified date, the director, upon such default, shall assess the employer's contribution on the basis of a rate of 2.7 per cent, give written notice of such assessment to the employer, and such assessment shall be subject to redetermination by the director upon the filing by the employer of correct and sufficient reports within thirty days after notice of such assessment shall have been given to the employer.

Spilman, Thomas & Battle, Charleston, R. S. Spilman, Jr., Charleston, for petitioner.

Leo Loeb, Charleston, Franklin W. Kern, Charleston, for defendant.

RILEY, Judge.

The State of West Virginia at the relation of Boone County Coal Corporation, a corporation, in this original proceeding in mandamus seeks to command the defendant, C. S. Davis, Director of Employment Security, to fix relator's rate of contribution to the unemployment compensation fund for the calendar year 1949 at 0.7 per cent of its payroll, and to accept settlement for the year 1949 on such basis.

This case, having been submitted to the Court on relator's petition, respondent's answer, and relator's demurrer to the answer, involves no disputed question of fact.

The relator, Boone County Coal Corporation, an employer within the meaning of the unemployment act, Chapter 1, Acts of the Legislature, 1936, Second Extraordinary Session, as amended, now is and has for many years been engaged in the production of coal, oil, gas and other natural resources in Boone and Logan Counties.

The relator's payroll, as alleged in the petition, for several years past has amounted to more than one million dollars annually, and its payroll for the year 1949 will probably amount to more than one million, five hundred thousand dollars.

On July 31, 1948, relator, through inadvertence, failed to file with the director its' report of the amount of wages paid by it for the preceding quarter of 1948, ending June 30, 1948, and to make payment of its contribution to the fund for that period, which report and payment were under the regulations promulgated by the director required to be filed and paid on or before that date. The vacations of relator's auditor and cashier overlapped at the end of July, 1948. The necessary wage information and check in payment for the second quarter of 1948 were prepared prior to July 31, 1948. The oversight occurred by reasonof the absence of both the auditor and cashier from relator's office during the last week in July, 1948, and neither the wage information nor the check was mailed on or before July 31, 1948. When the auditor returned about August 7, 1948, his attention was called to the papers, whereupon the report and check were promptly mailed to the director's office. At that time the director was in possession of all data necessary to enable him to calculate and fix relator's rate of contribution to the fund for the year 1949. On the day the director received the report and check, he had hardly begun, and certainly he had not completed, the calculation of rates for all employers subject to the unemployment compensation act for the ensuing year.

The director regularly filed relator's report on the day it was received, and accepted the tendered payment, with interest at the rate of one per cent a month from July 31, 1948, to August 7, 1948; but because of relator's delinquency in filing the report and making payment in accordance therewith, the director refused to accept the payment in final settlement of relator's liability. Evidently invoking the provisions of Subsection (3), Section 7, Article 5, Chapter 162, Acts of the Legislature, Regular Session, 1947, the director ignored relator's actual experience, and billed relator with the difference between the amount of contribution on the basis of 2.7 per cent and 0.7 per cent. The pertinent provisions of said subsection (3) read: "The director shall, for the year one thousand nine hundred forty-eight and for each calendar year thereafter, classify employers in accordance with their actual experience in the payment of contributions on their own behalf and with respect to benefits charged against their accounts, with a view of fixing such contribution rates as will reflect such experience. For the purpose of fixing such contribution rates for each calendar year, the books of the department shall be closed on July thirty-one of the preceding calendar year, and any contributions thereafter paid, as well as benefits thereafter paid with respect to compensable weeks ending on or before June thirty of the preceding calendar year, shall not be taken into account until the next annual date for fixing contribution rates: Provided, however, That if an employer has failed to furnish to the director on or before July thirty-one of such preceding calendar year the wage information for all past periods necessary for the computation of the contribution rate such employer's rate shall be two and seven-tenths per cent: * * *."

On December 23, 1948, the director by letter formally notified relator that its rate for the calendar year 1949 was fixed at 2.7 per cent, and relator within thirty days filed a correct and sufficient report, and requested that its rate be redetermined under the provisions of Subsection (1), Section 17-a, Article 5, Chapter 76, Acts of the Legislature, Regular Session, 1943, which provides: "If an employer fails to file reports for the purpose of determining the amount of contribution in accordance with the regulations of the director, or files manifestly incorrect or insufficient reports, the director may assess the contribution and any interest due on the basis of the information submitted by the employer or on the basis of an estimate as to the amount due, and shall give written notice of such assessment to such employer: Provided That such assessment shall be subject to redetermination by the director upon the filing by the employer of correct and sufficient reports within thirty days after notice of such assessment shall be given to him."

The director refused this request for a redetermination of relator's rate, but, at relator's request submitted the question of relator's right to a reduced rate to the Attorney General of West Virginia, who rendered a written opinion, dated June 22, 1949, to the effect that relator was entitled to the lower rate reflected by its employment experience.

At this point it seems pertinent to state that as of July 31, 1948, the date relator's report and payment should have been filed and made, the payments credited to relator's account for all past years having exceeded the benefits charged to said account by an amount at least of 11 per centof relator's average annual payroll, relator's rate for the year 1949, based on such experience alone, should...