Swanson v. Employment Sec. Agency

• Decision Date: 15 July 1959
• Docket Number: No. 8728,8728
• Parties: Oliver W. SWANSON, Claimant-Respondent, v. EMPLOYMENT SECURITY AGENCY, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 714

342 P.2d 714

81 Idaho 385

Oliver W. SWANSON, Claimant-Respondent, v. EMPLOYMENT SECURITY AGENCY, Defendant-Appellant.

No. 8728.

Supreme Court of Idaho.

July 15, 1959.

Frank L. Benson, Atty. Gen., John W. Gunn, Asst. Atty. Gen. (Graydon W. Smith, former Atty. Gen., on the brief), for appellant.

Carver, McClenahan & Greenfield, Boise, for respondent.

SMITH, Justice.

Appellant Employment Security Agency will be referred to as the agency, respondent Oliver W. Swanson as claimant and the Industrial Accident Board as the board.

Claimant commenced this proceeding to determine whether he was eligible for employment security benefits while attending North Idaho Junior College in Coeur d'Alene, a regular established school. The relevant facts found by the agency's appeals examiner, adopted by the board on review, read as follows:

'Claimant filed an initial claim for benefits effective January 5, 1958. He had been employed at the Northwest Timber Company from November, 1955, through January 8, 1958, and was unemployed because of reduction in force.

'During the time that claimant was employed at Northwest Timber he was working night shift from 4:45 p. m. to 1:30 a. m. Starting with the second semester in January, 1956 (probably an error for 1957--Document 2 in Agency's Administrative file), he enrolled at the North Idaho Junior College, majoring in education. His classes ran from 8 a. m. to 2:25 p. m. When the first semester ended on January 24, 1958 (although he did not take his examinations until January 29), claimant did not immediately enroll but after surveying the labor market and finding that there were few if any jobs existing, he enrolled as of February 17. At the time of the hearing [March 3, 1958] he was pursuing his course at the college.

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'The claimant, after completing the first semester, made an effort to find other work but, not being successful in this, he again enrolled; and at the time of his hearing [before the appeals examiner], he was a full-time student at the junior college. He was also a full-time student between the time of his being laid off and until after taking his examinations for the semester.'

The facts are not in dispute.

I.C. § 72-1312(a), the particular statute involved, reads as follows:

'A week of unemployment with respect to which an eligible benefit claimant shall be entitled to benefits shall be known as a compensable week; provided, however, that no person shall be deemed to be unemployed while he is attending a regular established school excluding night school.' (Emphasis supplied.)

The matter for decision by the board on review was whether claimant was eligible for benefits beginning January 8, through the week ending February 1, 1958, and during times thereafter, while attending the college. Based upon the facts as outlined and the statute as applied to those facts the board determined that claimant should be allowed benefits. The agency appealed from the board's determination.

The single question of law involved pinpoints on the interpretation of the portion of I.C. § 72-1312(a), 'no person shall be deemed to be unemployed while he is attending a regular established school excluding night school.' The board, holding in favor of claimant, ruled that the phrase, 'no person shall be deemed to be unemployed,' creates a prima facie but rebuttable presumption of ineligibility for benefits, and that claimant had successfully rebutted the presumption, thus entitling him to benefits. The agency asserts such ruling as error.

The words 'deem' or 'deemed' have been the subject of considerable controversy and in instances have received the interpretation that they create a disputable presumption and not a conclusive one. Cases in this category are: Kleppe v. Odin Tp., McHenry County, 40 N.D. 595, 169 N.W. 313; Moody v. State, 159 Tenn. 245, 17 S.W.2d 919; Sanitary Milk & Ice Cream Co. v. Hickman, 119 W.Va. 351, 193 S.E. 553; Zimmerman v. Zimmerman, 175 Or. 585, 155 P.2d 293; Erickson v. Erickson, 167 Or. 1, 115 P.2d 172; Williamson v. Winningham, 199 Okl. 393, 186 P.2d 644; Brimm v. Cache Valley Banking Co., 2 Utah 2d 93, 269 P.2d 859.

Conversely, many well reasoned decisions indicate the weight of authority to be that the words 'deem' or 'deemed' create a conclusive presumption. We refer to a few of those decisions.

In the early case of Leonard v. Grant, C.C.D.Or., 5 F. 11, 16, was involved a federal law (19 Stat. 604) which provided that a woman, capable of naturalization, who was now or may hereafter be married to a citizen of the United States, shall be deemed a United States citizen. The Court, in construing the statute as creating a conclusive presumption, i. e., the equivalent to her being naturalized directly by an act of Congress or in the usual mode thereby prescribed, said: 'The word 'deemed' is the equivalent of 'considered' or 'judged;' and, therefore, whatever an act of congress requires to be 'deemed' or 'taken' as true of any person or thing, must, in law, be considered as having been duly adjudged or established concerning such person or thing, and have force and effect accordingly.'

In Harder v. Irwin, D.C.N.Y., 285 F. 402, 405, was interpreted a provision of the Revenue Act of 1916, § 31(b), as amended by Act October 3, 1917, 40 Stat. 300 (Comp. St. § 6336z), that any distribution made to corporation shareholders 'shall be deemed to have been made from the most recently accumulated undivided profits or surplus.' The Court held that the word 'deemed' must be construed as an absolute requirement or as creating a conclusive presumption. See United States v. Davis, D.C. Mo., 50 F.2d 903, to the same effect.

H. P. Coffee Co. v. Reconstruction Finance Corp., Em.App., 215 F.2d 818, 822, involved the interpretation of a federal regulation, that coffee subsidy payments shall be deemed to have been paid on all coffee the importer had in inventory on termination of the program. The Court, in holding that 'deemed' created a conclusive presumption of payment of the subsidy, said:

'It is said that the word [deemed] must be construed as raising only a rebuttable presumption that the subsidy had been paid on all coffee which an importer has in his terminal inventory, and that this presumption disappears on proof by an importer that, in fact, he has received no subsidy payments thereon. This contention flies directly into the teeth of the generally accepted definitive import of the word 'deemed' and almost unanimous judicial determination that the word, when employed in statutory law, creates a conclusive presumption. E. g., United States v. Davis, D.C., 50 F.2d 903; Harder v. Irwin, D.C., 285 F. 402; Intagliata v. Shipowners & Merchants Towboat Co., Cal.App., 151 P.2d 133, subsequent opinion 26 Cal.2d 365, 159 P.2d 1; King v. McElroy, 37 N.M. 238, 21 P.2d 80; Commonwealth v. Pratt, 132 Mass. 246. See 11 Words and Phrases, Deem, pp. 478-482. Absent qualifying language, or ambiguity, we must give to the word 'deemed', as employed in the emphasized language of paragraph 1(f)(iii), its natural import.'

In In re Waldron's Estate, 84 Colo. 1, 267 P. 191, the Court held that the word 'deem' created a conclusive presumption as to residence, as used in a statute providing that in the case of a person dwelling in the state for the greater part of any period, he shall be deemed a resident during the twelve consecutive months in the twenty-four months next preceding his death, for the purpose of determining inheritance taxes.

In State v. Holmes, 133 Wash. 543, 234 P. 275, the Court held that a law created a conclusive presumption, which provided that an attorney who failed to register annually and pay a registration fee, 'shall be deemed' suspended.

In 26A C.J.S., p. 122, definitions of the word 'deemed', taken from many jurisdictions, appear as follows 'Following the definitions given for the present tense and, of course, depending upon the connection or circumstances of its use, 'deemed' has been variously defined as meaning accounted, adjudged, conclusively considered, considered, declared, decreed, determined, judged, or presumed; accepted as an established fact; construed or interpreted, held, regarded or treated as; taken and considered. 'Deemed' is further defined as meaning conclusively presumed, as distinguished from presumed prima facie; although it has also been held that sometimes the word may connote a prima facie presumption as distinguished from a conclusive presumption.

"Deemed' has been held to be equivalent to, or, synonymous with, 'adjudged,' 'considered,' and 'decreed,' and also with 'determined,' 'presumed,' and 'regarded."

The text cites the jurisdictions of North Dakota and Virginia wherein the word has been held connoting a prima facie presumption as distinguished from conclusive presumption.

In our own jurisdiction we find one instance, in Powell v. Spackman, 7 Idaho 692, 65 P. 503, 54 L.R.A. 378, wherein was construed the word 'deem;' therein this Court, in construing the portion of Idaho Const. art. 6, § 5, reading:

'For the purpose of voting no person shall be deemed to have gained or lost a residence by reason of his presence or absence * * * [then follows certain contingencies].'

ruled as follows:

'The word 'deemed' is the past participle of the transitive verb 'deem,' which is defined by Webster as follows: 'To account; to esteem; to think; to judge; to hold in opinion; to regard.' And it is defined by the same lexicographer, when used as an intransitive verb, as follows: 'To be of opinion; to...