Wiley Motors Inc. v. Unemployment Comp. Comm'n.
| Decision Date | 01 April 1943 |
| Docket Number | No. 221.,221. |
| Parties | WILEY MOTORS, Inc., et al. v. UNEMPLOYMENT COMPENSATION COMMISSION. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Proceeding by the Wiley Motors, Inc., and others for a writ of certiorari to review a decision of the Unemployment Compensation Commission that prosecutors are employers within the Unemployment Compensation Law.
Writ dismissed.
October term, 1942, before CASE, DONGES, and COLIE, JJ.
Leon Semer, of Metuchen (Stephen F. Somogyi, of Perth Amboy, of counsel), for prosecutors.
Charles A. Malloy, of Trenton (Herman D. Ringle, of Trenton, of counsel), for defendant.
This writ of certiorari brings up for review a decision of the Unemployment Compensation Commission of New Jersey that:
‘Wiley Motors, Inc. and Samuel E. Wiley t/a New Jersey Fulgent Co. are employers as of January 1, 1936 in accordance with R.S. 43:21-19(h)(1), N.J.S.A. 43:21-19(h)(1), by application of subsection 19(h)(4) of the New Jersey Unemployment Compensation Law.
‘The New Jersey Fulgent Co., Inc. is an employer as of May 29, 1936, in accordance with R.S. 43:21-19(h)(2), N.J.S.A. 43:21-19(h)(2).
‘Wiley, Inc. is an employer as of March 4, 1938, in accordance with R.S. 43:21-19(h)(2).’
The holding above was rendered after a hearing upon the application of the prosecutors herein for a refund in the amount of $1,025.87, the sum paid by them under protest for contributions levied against them, or some of them, as employers for the years 1936, 1937, 1938 and 1939.
The facts are not in dispute. Wiley Motors Inc., was organized in 1933; Samuel D. Wiley owning 100 shares of its capital stock and being its President and Treasurer; Frank H. Durham, holding 8 shares and being its Vice-President; Ida Jaffe Hamburg, holding 2 shares and being Secretary. The business of the corporation was the retail sale of motor trucks, tires, tubes and the repairing of trucks. It had two employees, exclusive of the officers. In the latter part of 1937 it ceased business and early in 1938 Wiley, Inc., was organized and succeeded to the business of its predecessor. Samuel D. Wiley was its President and Treasurer, holding 4 shares of stock; Anna R. Wiley, his wife, also held 4 shares and was Vice-President and Secretary; Samuel Wiley (the father of Samuel D. Wiley) was not an officer but held 4 shares. The latter company also had five employees, including officers. In 1939 Wiley, Inc., ceased operations and is now dormant. New Jersey Fulgent Co. Inc. was organized in May of 1936; Samuel D. Wiley, President and Treasurer holding 8 shares; Anna R. Wiley, Vice-President, holding 1 share; Ethel Kessler Shapiro, Secretary, holding 1 share. Its total employees including officers, is six. Prior to its incorporation in 1936 the same business of manufacturing aeroplane flares and signal devices was carried on by Samuel D. Wiley, individually, under the trade name of New Jersey Fulgent Co. It is conceded that the number of employees of the affiliated companies for the respective years under consideration was eight or more.
The Unemployment Compensation Commission levied yearly employer's contributions as follows:
1936
Wiley Motors, Inc. $73.74
New Jersey Fulgent Co., Inc. 48.18
1937
Wiley Motors, Inc. $85.39
New Jersey Fulgent Co., Inc. 139.52
1938
Wiley, Inc. $143.98
New Jersey Fulgent Co., Inc. 336.44
1939
Wiley, Inc. $114.10
The total of these contributions, $1,025.87, is the subject matter of this proceeding.
The section of the Unemployment Compensation Act applicable to the instant situation is R.S. 43:21-19, N.J.S.A. 43:31-19, which reads as follows:
‘As used in this chapter, unless the context clearly requires otherwise: * * *
‘(h) ‘Employer’ means:
‘(1) Any employing unit which for some portion of a day, but not necessarily simultaneously, 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 (irrespective of whether the same individuals are or were employed in each such day);
‘(2) Any employing unit which acquired the organization, trade or business, or substantially all the assets thereof, of another which at the time of such acquisition was an employer subject to this chapter;
‘(3) Any employing unit which acquired the organization, trade or business, or substantially all the assets thereof, of another employing unit and which, if treated as a single unit with such other employing unit, would be an employer under paragraph (1) of this subsection;
‘(4) Any employing unti which together with one or more other employing units, is owned or controlled (by legally enforcible means or otherwise), directly or indirectly by the same interests, or which owns or controls one or more other employing units (by legally enforcible means or otherwise), and which, if treated as a single unit with such other employing unit or interests, would be an employer under paragraph (1) of this subsection.’
Prosecutor writes down twelve reasons why the decision under review should be reversed: First, that prosecutors are not affiliated within the meaning of R.S. 43:21-19(h)(4); second, that prosecutors are not subject employers because they do not separately have eight or more individuals in employment; third, that the statute has no application since the business are unrelated and were not organized or split up to evade subject status; fourth, that the decision of the Unemployment Compensation Commission violates the separate corporate existence, character and property rights of prosecutors; fifth, that the decision under review enlarges the scope of covered employers in a manner not contemplated or intended by the legislature. The remaining seven reasons may be summed up by stating that they each allege a violation of the United States Constitution, more specifically the Fourteenth Amendment thereof.
Prosecutors' first argument is that there is no affiliation within the meaning and contemplation of R.S. 43:21-19(h)(4). This argument is, in the main, based upon the contention that the purpose of the affiliate clause was to prevent a...
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