Wilson v. Hix

Citation65 S.E.2d 717,136 W.Va. 59
Decision Date12 June 1951
Docket NumberNo. 10293,10293
PartiesWILSON et al. v. HIX et al.
CourtSupreme Court of West Virginia

Syllabus by the Court.

1. Section 11, Article 7, Chapter 130, Acts of the Legislature, 1945, dealing with 'Benefits pending appeal'; Section 17, Article 7, Chapter 135, Acts of the Legislature, 1949, dealing with 'Finality of Board's Decision'; and Section 22, Article 7, Chapter 76, Acts of the Legislature, 1943, dealing with 'Judicial Review' should be read in pari materia, and when so read should be construed to mean that the words 'a court' in Section 17 mean a court having jurisdiction, which, under Section 22, is the Circuit Court of Kanawha County; and further that Sections 11, 17 and 22 should be construed to mean that if no application for an appeal is had to the Circuit Court of Kanawha County within thirty days after the decision of the board of review, the decision of the board of review should become final within the meaning of said Section 22, in which event a claimant, last employer, or other interested party has an additional twenty days under Section 22 within which to apply to the circuit court for a judicial review of the findings of the board of review; and further if a claimant, last employer, or other interested party elects under Section 17 to apply to the circuit court for an appeal within the thirty-day period, such person has a right to a judicial review independent of the provisions of Section 22, in which case it is the duty of the circuit court to pass on all legal questions involved in the board's findings, including the judicial question whether the decision of the board is clearly wrong or against the preponderance of the evidence.

2. To the extent that the opinion of this Court in the case of State ex rel. Aikens v. Davis, 131 W.Va. 40, holds that under Section 17, Article 7, Acts of the Legislature, 1943 (now Section 17, Article 7, Acts of the Legislature, 1949), a claimant, last employer, or other interested party did not have the right within thirty days after the decision of the board of review, to apply to the Circuit Court of Kanawha County for a judicial review independent of the provisions of Section 22, Article 7, Chapter 76, Acts of the Legislature, 1943, the holding of this Court is disapproved.

3. The filing of an appeal by claimant, last employer, or other interested party from the decision of the board of review within thirty days after mailing of the notification of the board's decision under Section 17, Article 7, Chapter 135, Acts of the Legislature, 1949, will not serve to prevent the operation of the clear and mandatory provision of Section 11, Article 7, Chapter 130, Acts of the Legislature, 1945, which reads: '* * * If benefits are allowed by the decision of the board on appeal from the decision of the appeal tribunal the benefits shall be paid whether such decision reverses or affirms the decision of the appeal tribunal and regardless of any further appeal: * * *.'

Perry S. Poffenbarger, James G. Jeter, Jr., Charleston, for petitioners.

Franklin W. Kern, Leo Loeb, Dayton, Campbell & Love, Charles M. Love, and Thomas W. Moses, all of Charleston, for respondents.

RILEY, Judge.

Clyde W. Wilson, an employee of Edwin M. Knowles China Company, a corporation, and certain other employees similarly situated, are here on certiorari to the Circuit Court of Kanawha County, seeking a reversal of an order of the circuit court, entered on the 7th day of January, 1950, in which it refused to grant 'an appeal and judicial review of the action of the Board of Review' as prayed for.

The claims grow out of a cessation of work due to an unauthorized strike of a number of employees of the china company, who are not claimants here, and, because of the highly integrated nature of the industry in which claimants were employed, though they did not participate in the strike, they were thrown out of work by reason of the strike.

Prior to the action of the circuit court the matter in controversy had passed through the several hearings and appeals provided by statute, beginning with the field deputy, who denied the right of claimants to unemployment compensation benefits. The appeal tribunal, consisting of a trial examiner, which took evidence, and the board of review, in the order named, upheld the finding of the field deputy.

On September 9, 1949, the board of review addressed a letter of transmittal of its decision to claimants and their employer, in which it stated: 'This decision is final, unless a claimant or interested party appeals to the circuit court of Kanawha county within thirty days after mailing or notification of the Board's decision.' Beneath the signature of the board of review by E. A. Hansbarger, Chairman, appears the following notation: 'Important. Your thirty days allowed for appeal by the West Virginia law will expire on October 9, 1949, cc: Mr. E. C. Armstrong, President of Local 124 National Brotherhood of Operative Potters, Newell, W. Va Mr. James M. Duffy, President National Brotherhood of Operative Potters, East Liverpool, Ohio.'

The employer, Edwin M. Knowles China Company, raises for the first time in this Court the question of the jurisdiction of the Circuit Court of Kanawha County to consider the case, on the ground that an application for a review of the decision of the board was not made to the circuit court within twenty days after the decision of the board had become final, as required by Section 22, Article 7, Acts of the Legislature, 1943, Chapter 76.

On the other hand counsel for claimants say that the appeal to the Circuit Court of Kanawha County was timely made under Section 17, Article 7, Acts of the Legislature, 1949, Chapter 135, which is headed 'Finality of Board's Decision.' Prior to the last-mentioned enactment, the Unemployment Compensation Act (now Employment Security) provided that appeals to a court should be made 'within twenty days' after mailing of notification of the board's decision.

The primary question arising in this proceeding is what is the effect of Section 17 providing for the finality of the board's decision after mailing of the notification, unless 'a claimant * * * appeals to a court within thirty days after mailing of notification of the board's decision', read in connection with Section 22?

A secondary question arising herein is whether the filing of an appeal by a claimant, last employer, or other interested party from the decision of the board of review within thirty days after mailing of the notification of the board's decision under Section 17, Article 7, Chapter 135, Acts of the Legislature, 1949, will serve to prevent the operation of the provision of Section 11, Article 7, Chapter 130, Acts of the Legislature, 1945, which reads: '* * * If benefits are allowed by the decision of the board on appeal from the decision of the appeal tribunal the benefits shall be paid whether such decision reverses or affirms the decision of the appeal tribunal and regardless of any further appeal, * * *.'

In the consideration of the question of jurisdiction now before us, we deem it advisable to reappraise the provisions of Section 11, Article 7, Chapter 130, Acts of the Legislature, 1945, dealing with 'Benefits Pending Appeal'; Section 17, Article 7, Chapter 135, Acts of the Legislature, 1949, dealing with 'Finality of Board's Decision'; and Section 22, Article 7, Chapter 76, Acts of the Legislature, 1943, dealing with 'Judicial Review', in connection with the holding of this Court in the case of State ex rel. Aikens v. Davis, 131 W.Va. 40, 45 S.E.2d 486. Section 11 reads: 'Benefits Pending Appeal.--If an appeal is filed, benefits for the period prior to final determination of the board shall be paid only after such determination. If benefits are allowed by the decision of the board on appeal from the decision of the appeal tribunal the benefits shall be paid whether such decision reverses or affirms the decision of the appeal tribunal and regardless of any further appeal: Provided, That such decision does not relate to a disqualification under subsection (4) of section four of article six; but if the decision of the board is reversed on appeal an employer's account shall not be charged with the benefits so paid.' Section 17 reads: 'Finality of Board's Decision.--The decision of the board shall be final and benefits shall be paid or denied in accordance therewith, unless a claimant, last employer, or other interested party appeals to a court within thirty days after mailing of notification of the board's decision.' At the time the Aikens case was decided Section 17, contained in Article 7, Chapter 76, Acts of the Legislature, 1943, read: 'Finality of Board's Decision.--The decision of the board shall be final and benefits shall be paid or denied in accordance therewith, unless a claimant, last employer or any base period employer of a claimant, or other interested party appeals to a court within twenty days after mailing of notification of the board's decision.' Section 22, also contained in Chapter 76, Acts of the Legislature, 1943, reads: 'Judicial Review.-- Within twenty days after a decision of the board has become final, any party aggrieved may secure judicial review of the decision by commencing an action against the board in the circuit court of Kanawha county. Parties to the proceedings before the board shall be made defendants. The director shall be a necessary party to such judicial review.'

The fact that the instant claims arose in 1948 and 1949, and prior to the enactment of Section 17, Article 7, Chapter 135, Acts of the Legislature, 1949, changing the time period of twenty days in the 1943 statute to thirty days in the present statute is of no moment. We say this because the amendment did not change or serve to divest any vested rights which claimants had. The amendment concerned only the matter of procedure, and by...

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