Tharp v. Unemployment Compensation Commission, 2201

• Decision Date: 20 January 1942
• Docket Number: 2201
• Citation: 121 P.2d 172,57 Wyo. 486
• Parties: THARP v. UNEMPLOYMENT COMPENSATION COMMISSION
• Court: Wyoming Supreme Court

121 P.2d 172

57 Wyo. 486

THARP v. UNEMPLOYMENT COMPENSATION COMMISSION

No. 2201

Supreme Court of Wyoming

January 20, 1942

ERROR to the District Court, Washakie County; P. W. METZ, Judge.

Action by the Unemployment Compensation Commission of Wyoming against Frank E. Tharp, sole trader, doing business under the firm name and style of Sanitary Barber Shop, to recover money allegedly due from defendant as contributions under the Unemployment Compensation Law. To review a judgment for plaintiff, defendant brings error.

Affirmed.

For the plaintiff in error there was a brief by G. W. Bremer of Worland, C. A. Zaring of Basin, and oral argument by Mr Bremer.

The judgment of the trial court is erroneous in holding that plaintiff in error is liable for the payment of Unemployment Compensation Tax for and on account of persons who performed services as barbers in his establishment under the firm name and style of Sanitary Barber Shop. The men unemployed were licensed barbers and were independent contractors as appeared from the evidence. They furnished their own tools and performed services on a commission basis under a contract with plaintiff in error, which expressly declared that neither the relation of master and servant nor of employer and employee existed between plaintiff in error and the persons performing services as barbers in his establishment. Defendant in error demanded payment from plaintiff in error under the provisions of Chapter 113 of the Laws of 1937 known as the "Unemployment Compensation Law," and upon refusal of plaintiff in error to pay such tax, brought this action to recover. The trial court erred in its findings of fact and conclusions of law and in rendering judgment against plaintiff in error, none of which are sustained by the evidence. The trial court also erred in overruling the motion of plaintiff in error for a new trial. The written contract existing between plaintiff in error and the barbers who worked in his establishment rendered them free from direction and control. The contract must speak for itself. Barrett v. First National Bank, 50 Wyo. 502 at 508. The facts in this case are very different from those in the case of McDermott v. State (Wash.) 82 P.2d 568. The following cases construe written agreements relative to the subject of independent contractors. McCormick v. Sears Roebuck & Co. (Mich.) 236 N.W. 785; Lumber Co. v. Eder (Wisc.) 220 N.W. 199; Svolos v. Marsch & Co. (N. Y.) 186 N.Y.S. 689; Fidelity & Cas. Co. v. Ind. Acc. Com. of Cal., 43 A. L. R. 1304; Washington Pub. Co. v. Ernst (Wash.) 124 A. L. R. 667; Stricker v. Comm. (Utah) 19 A. L. R. 1159. Chapter 113, Laws 1937 is a revenue measure and all doubts as to its construction must be resolved in favor of the taxpayer and against the taxing power. State Board of Equalization v. Stanolind Oil & Gas Company, 54 Wyo. 521. The declaration appearing in the Act that it is enacted under the police power of the state adds little, if anything, to the Act in question. 12 C. J. 904; State v. Sheridan, 25 Wyo. 347; State v. Mortuaries, Inc. (Mont.) 68 A. L. R. 1512 et seq. Plaintiff in error does not come within the provisions of Chapter 113, Laws 1937 and he has not been an employer of barbers since December 31, 1937. The judgment is in conflict with Article I, Sections 2, 6, 7, 28 and 33 of the State Constitution. Weaver v. Public Service Commission, 40 Wyo. 462. There is no quarrel between the parties to the license agreements, which according to their terms could be terminated at any time. Parsons v. Commission (Cal.) 173 P. 585; Washington Recorder Co. v. Ernst, 124 A. L. R. 667; State v. Langley, 53 Wyo. 332. It is not the duty of the court to make contracts for the parties. Phillips v. Hamilton, 17 Wyo. 41. Courts must look to the objects which the parties have in view. Wyoming Oil Company v. Carter, 31 Wyo. 314; Dunn v. Gilbert, 36 Wyo. 249; Bosler v. Coble, 14 Wyo. 423. In view of the recently decided case of Commission v. Mathews, 111 P.2d 111, no extensive citation of authorities seems necessary. However, we respectfully submit the following: Lumber Co. v. Eder (Wis.) 220 N.W. 199; Barton v. Studebaker Corp. (Cal.) 189 P. 1025; Fuller Brush Co. v. Ind. Comm. (Utah) 129 A. L. R. 511; Stockwell v. Morris, 46 Wyo. 1; Weaver v. Public Service Commission, 40 Wyo. 462. It is respectfully submitted that the judgment of the trial court should be reversed.

For the defendant in error there were briefs by Ewing T. Kerr, Attorney General, of Cheyenne; Tom Nicholas and James G. McClintock of Casper, and oral argument by Mr. McClintock.

Chapter 113, Laws 1937 was enacted to establish a system of unemployment compensation or insurance system based on wages paid by employers. The services performed by licensee barbers are within the definition of the term "employment" in the Unemployment Compensation Law. Industrial Commission v. Life Ins. Co. (Colo.) 88 P.2d 560; Young v. Bureau of Unemployment Compensation (Ga.) 10 S.E.2d 412; Payne Lumber Co. v. McKinley (Ark.) 143 S.W.2d 38; Schomp v. Brush Company, 12 A.2d 702. The law provides that services performed for wages constitute employment. Where a statute provides a glossary, the definitions therein contained must be followed in construing the law. In re Monrovia Evening Post (Cal.) 248 P. 1017; Dewitt v. State, ex rel. Crabbe (Ohio) 141 N.E. 551; O'Boyle v. Parker-Young Co. (Vt.) 112 A. 385; Fisk v. Bonner Tie Co. (Idaho) 232 P. 569; Chicago & Eastern Railway Co. v. Kaufman (Ind.) 133 N.E. 399; Ind. Comm. v. Investment Co. (Colo.) 242 P. 49; Fox v. Oil Company, 294 U.S. 87; Steinberg v. United States, 14 F.2d 564; Southern Photo & Blue Print Co. v. Gore (Tenn.) 114 S.W.2d 796; Singer Sewing Machine Co. v. Comm. (Ore.) 103 P.2d 708; Comm. v. Life Insurance Co. (Colo.) 88 P.2d 560; Re Mid-American Co., 31 F.Supp. 601; Globe Co. v. Comm. (Utah) 91 P.2d 512. The statutory test as to employment differs from that employed at common law. The statutory relationship exists if the employer has general control over the services performed. Industrial Comm. v. Insurance Co., supra.; Timber Company v. Baker, 53 Wyo. 467. Chapter 11, W. R. S. 1931. The law relating to the licensing of barbers, as amended by the Laws of 1935, requires barber shops to be under the direction, supervision and management of registered barbers. State v. Laramie, 40 Wyo. 74. The services resulted in a profitable return to plaintiff's business. Lamont v. Realty Company, 48 Wyo. 56; Pope v. Safeway Stores, Inc., 54 Wyo. 256. Wage earners following a particular profession have never been considered independent contractors. Brackett v. Lubke, 4 Allen 138. The constitutional question urged by plaintiff in error is undeserving of serious consideration. The act regulating barbers comes within the police power of the State. State v. Sherman, 18 Wyo. 169; Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511; Timber Co. v. State, 243 U.S. 227; 40 Wyo. 462. The Unemployment Compensation Law is intended to alleviate the evils of unemployment for persons who are willing to work but who cannot find work. Chamberlain v. Andrews (N. Y.) 2 N.E.2d 22; Gillum v. Johnson (Cal.) 62 P.2d 1037; Howes Bros. v. Unemployment Comm. (Mass.) 5 N.E.2d 720; Carmichael v. Southern Coal and Coke Co., 301 U.S. 495; Tatum v. Comm., 178 So. 95. Article I, Section 28 of the Constitution must be read in connection with Article XV, Sections 11 and 12 relating to tax exemptions. State v. Snyder, 29 Wyo. 199; Harkin v. Board of Commissioners, 30 Wyo. 455; Ideal Bakery Co. v. Schryver, 43 Wyo. 108. An example of unreasonable classification is contained in State v. LeBarron, 24 Wyo. 519; State v. Sherman, 18 Wyo. 169; McGarvey v. Swan, 17 Wyo. 120; In re Gillette Daily Journal, 44 Wyo. 226. The contributions required are not property taxes. Martin v. United States, 307 U.S. 618.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

In the district court of Washakie County, Wyoming, the Unemployment Compensation Commission of Wyoming, as plaintiff, instituted an action to recover certain amounts of money against Frank E. Tharp, sole trader, doing business under the firm name and style of Sanitary Barber Shop in the town of Worland, Wyoming. After pleadings were filed, issues made up and trial had to the court without a jury, a judgment was given in favor of the plaintiff. In the present proceedings in error to review that judgment the defendant Tharp has accordingly become the plaintiff in error and the plaintiff, the defendant in error. For convenience the parties will be referred to hereinafter as aligned in the district court or by their respective names, the defendant in error being designated as the "Commission" and the plaintiff in error, Frank E. Tharp, etc., as "Tharp". The history and material facts of this litigation requiring consideration at this time may be summarized thus:

Since the year 1933 to and including the year 1937, Tharp has been engaged in conducting a barber shop called the "Sanitary Barber Shop" in the Town of Worland. He employed three men as barbers, his brother, Elbert C. Tharp, Frank L. LeFavour and Charles L. Chorum. Each of these men had been in the employ of the defendant and in his barber shop as barbers for a number of years prior to 1937. He himself also worked in the shop and supplied the public with the same sort of service as his employees aforesaid, in addition to his managerial duties.

In connection with the employment status of Tharp and his three employees as described above, some of the requirements of Chapter 11, Revised Statutes 1931, regulating the practice of barbering in this State, may be appropriately mentioned here. Section 11-103 of that Chapter, as amended by Laws of Wyoming, 1935, Chapter 9,...