Unemployment Comp. Div. of Workmen's Comp. Bureau v. Valker's Greenhouses, Inc., 6703.

• Decision Date: 11 February 1941
• Docket Number: No. 6703.,6703.
• Parties: UNEMPLOYMENT COMPENSATION DIVISION OF WORKMEN'S COMPENSATION BUREAU v. VALKER'S GREENHOUSES, Inc.
• Court: North Dakota Supreme Court

70 N.D. 515

296 N.W. 143

UNEMPLOYMENT COMPENSATION DIVISION OF WORKMEN'S COMPENSATION BUREAU

v.VALKER'S GREENHOUSES, Inc.

No. 6703.

Supreme Court of North Dakota.

Jan. 6, 1941.

On Rehearing Feb. 11, 1941.

Syllabus by the Court.

1. In determining whether an enterprise is to be exempted from the payment of contributions to the North Dakota Unemployment Compensation Fund upon the ground that employees are engaged in agricultural labor, the conditions under which products are produced and labor employed must be considered as well as the labor practices used.

2. Labor rendered in a greenhouse and on a tract of land cultivated in connection therewith is not agricultural labor under the facts disclosed by the record in this case, the greenhouse being primarily a commercial enterprise.

3. The amendment of the Federal Social Security Act which brought greenhouses definitely within the exemption applicable to employers of agricultural labor is an amendment in substance and not merely a legislative interpretation of the language used in the original enactment. It does not control the interpretation of the North Dakota Unemployment Compensation Act which was enacted prior to the congressional amendment.

Appeal from District Court, Burleigh.

Suit by the Unemployment Compensation Division of the Workmen's Compensation Bureau, a department of the State of North Dakota, against Valker's Greenhouses, Incorporated, to recover contributions claimed to be due from defendant under the Unemployment Compensation Act, Laws 1937, c. 232, as amended by Laws 1939, c. 215. From an adverse judgment, plaintiff appeals.

Reversed and remanded.

W. Ray Reichert and Arthur B. Atkins, both of Bismarck, for plaintiff and appellant.

Thorp, Wattam & Vogel, of Fargo, for defendant and respondent.

MORRIS, Judge.

This is an action brought by the Unemployment Compensation Division of the Workmen's Compensation Bureau of North Dakota to recover from Valker's Greenhouses, Inc., contributions claimed to be due under the North Dakota Unemployment Compensation Act. This law is Chapter 232, Session Laws N.D.1937, as amended by Chapter 215, Session Laws N.D.1939.

The Unemployment Compensation Act requires contributions to be made to the State Unemployment Compensation Fund from certain employers. It states that “employer” means “Any employing unit which for some portion of a day in each of twenty different weeks, whether or not such weeks are or were consecutive, within either the current or the preceding calendar year, has or had in employment eight or more individuals.” Sec. 2(f) (1). It is further provided by section 2(h) of the act that: “(6) The term employment shall not include: * * * (4) Agricultural labor.”

The defendant had fourteen employees during the year 1937. It contends that the labor of ten of these employees comes within the exemption in that they were employed in agricultural labor and that as a consequence, the number of employees of the class that would require the defendant to make contributions is only four; and therefore no contributions are required by the terms of the act.

The defendant, as its name implies, operates a greenhouse. This structure covers about one acre under glass and is located on an eighteen acre tract of land in the outskirts of Minot. In connection with the greenhouse, the defendant also leased another tract of seven acres of land nearby. This tract is used chiefly for pasture and hay land. Of the eighteen acre tract, approximately fourteen acres are under cultivation. In addition to the greenhouse, there is located on this tract a large barn used to house four head of cattle, two horses, and two Shetland ponies. This livestock is fed chiefly on the produce from the two tracts. There is also a small barn in which machinery and tools are housed. Water is secured from two or three wells. Pumping is done by an electric motor. The milk from two cows is used by the families of two employees who live in apartments above the greenhouse. None is sold. The greenhouse is heated by a system fed by an automatic stoker. No janitor is employed. The soil within the greenhouse is watered by a sprinkling system.

The defendant, in addition to the greenhouse, operates a store in the business section of Minot where four people are employed. The employees of the greenhouse devote their efforts exclusively to that enterprise. The labor is unskilled and of the same type as is used on farms. Two or three extra men are employed in the spring. The work of the other employees is fairly constant. These employees devote about one-half of their time to working inside the greenhouse and the rest of the time outside chiefly on the eighteen-acre tract.

The labor is performed by hand or with the two horses kept on the premises. The enterprise is devoted chiefly to raising flowers, shrubs, plants, and trees for sale. Sales are made through the down town store. About three acres of sweet corn are raised every year, also about two acres of potatoes. The sweet corn is sold but the potatoes are used. Some hay is sold. The soil in the greenhouse is changed each year. The president of the corporation testified that it does not do a nursery business to any extent.

The sole question in this case is whether the persons employed by the defendant in connection with its greenhouse enterprise are employed in agricultural labor. The question is rendered difficult by the fact that the term agriculture is inexact. It has been employed by the courts and legislatures many times but not always with the same meaning. It has been given a broad or a restricted construction in accordance with the seeming purpose of the legislative enactment under consideration.

Webster's New International Dictionary, 2d Edition, defines “agriculture” as: “The art or science of cultivating the ground, and raising and harvesting crops, often including also feeding, breeding, and management of livestock; tillage; husbandry; farming; in a broader sense, the science and art of the production of plants and animals useful to man, including to a variable extent the preparation of these products for man's use and their disposal by marketing or otherwise. In this broad use it includes farming, horticulture, forestry, dairying, sugar making, etc.”

In Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 81 L.Ed. 1245, 57 S.Ct. 868, 873, 109 A.L.R. 1327, the Supreme Court of the United States dealt with a number of questions regarding the constitutionality of the Unemployment Compensation Act of Alabama. Included among the exemptions was that of agricultural labor. Concerning these exemptions, the court said: “The character of the exemptions suggests simply that the state has chosen, as the subject of its tax, those who employ labor in the processes of industrial production and distribution.” While the point under discussion was whether or not the exemption of particular classes of employers specified in the act was arbitrary, the language, nevertheless, aptly describes the general character of the exemptions. The designation of agricultural labor, as one of the exempted classes of employment, applies to a class that is clearly not industrial.

To regard the production of all fruits of the soil, no matter under what conditions they are produced, as being agricultural rather than industrial, would place upon the term “agriculture” a broader meaning than that intended by the legislature. It would imply a broader meaning than that given to the term in its common usage. We customarily...