National Tunnel & Mines Co. v. Industrial Commission

MOFFAT, Chief Justice. *41 Alton Hartle, claimant, filed with, the Unemployment Compensation Division of the Industrial Commission of Utah commission on the 12th day of September, 1938, a claim for “benefits,” alleging he was a miner, that his last employment was mining, that he voluntarily terminated the employment because a change of contract made it impossible to make a living wage and that he was in the employ of the National Tunnel Mines Company at Bingham, Utah, from January 1, 1937, to June 1, 1938. The commission requested from the National Tunnel & Mines Company, company, a Wage and Separation Report” on September 17, 1938, covering the period of January 1, 1937, to June 1, 1938, during which time Hartle claimed he was in the employ of the company. No report was filed. A “Final Notice and Demand for Wage and Separation Report” was dated and mailed to the company on September 26, 1938. Counsel for the company called counsel for the commission on September 29, 1938, and advised that Hartle was a lessee. E. C. Howe, “Chief, Claims and Benefits,” addressed a “Claims for Benefits” report to Harold D. Ellis, Unemployment Compensation Representative, Salt Lake City, Utah, which read: “Re: Alton Hartle “SS * [ XXX-XX-XXXX ] “You have been mailed an initial determination for the above named claimant which shows this claimant to be ineligible for benefits because of insufficient earnings in covered employment. The National Tunnel and Mines Company for whom this claimant worked has informed us that this man was a lessee and was not an employee of the company. Since there is a question as to whether or not the type of services which this man performed should be classed as employment under the Utah Unemployment Compensation Law we suggest that this claimant be informed of his right to appeal this case before the Appeal Tribunal of the Utah Unemployment Compensation Division. “Will you kindly arrange to handle this matter accordingly and advise this office.” *42 Claimant then filed an “Appeal and Request for Hearing on Claim for Unemployment Compensation Benefits,” dated October 3, 1938, with the commission and alleged therein: “My relationship with the National Tunnel & Mines Company and the Utah-Delaware Mining Company was that of an employee and not that of an ‘independent contractor’ as stated by them.” The following “Inter-Office Communication” followed: “October 3, 1938 “Subject: Hartle, Alton “To: Mr. E. C. Howe, Chief Claims & Benefit Dept. “From: Harold D. Ellis “Attention: M. O. Cox “With reference to your inter-office communication of October 1, please be advised that the above named claimant completed a form UC 617 ‘Appeal and Request for Hearing on Claim for Unemployment Compensation Benefits’ which has been transmitted through the usual channels. “/s/ Harold D. Ellis “Sr. UC Representative” The record contains unsigned documents purporting to be “Notice of Appeal and Hearing.” A hearing was held on November 14, 1938, at 10 o’clock, in the forenoon. Floyd T. Atkin, Appeals Examiner, conducted the hearing. The claimant was present and the National Tunnel & Mines Company, plaintiff herein, was represented by counsel and H. D. Hunter, cashier of National Tunnel & Mines Company. (Counsel for the plaintiff mention the fact that the claimant and the appeals tribunal were already discussing the question when they arrived. No objection was taken, it was not stated that this was prior to the time set for the hearing or if counsel were late for the hearing. This raises an implication but not having any more facts than here given, we do not find that there is any basis for any action on our part as to any implication). The basis of the relationship between Hartle and the plaintiff is a “lease” executed on the 1st day of January, 1937, *43 for a period of six months with the Utah-Delaware Mining Company, a “lease” executed on the 1st day of April, 1938, to expire on September 30th, 1938, and a Supplemental Contract executed on the 1st day of April, 1938, with the National Tunnel & Mines Company, which company took over the Utah-Delaware Mining Company. The lease executed January 1, 1937, provided that the plaintiff does “hereby grant, demise and let unto said Lessee that portion of the Company’s mining property situated * * The lease further provided that the lessee is to have and hold said demised premises and lessee covenants and agrees to work same in good and miner-like fashion and in a manner necessary to good and economical mining, to supervise the work personally, to assist in the performance thereof and not to employ or bring upon said premises any persons objectionable to the lessor, to work said premises with at least two men each day except Sundays and holidays and any failure to do so for three days in any one calendar month shall work a forfeiture of this lease without notice, to allow to remain on the leased ground and to revert to the company at the termination of the lease, all track, pipe, chutes, timber, additions, improvements or supplies such as explosives and tools, to assume all responsibility for personal injuries to or the death of said lessee or any of said lessee’s employees in or upon the property, said ores are to be delivered to the International Smelting Company and the lessee may have a representative present at the samplings. Lessee agrees not to sublease, without consent, to pay for the tramming, smelting and handling charges, all costs, attorney’s fees and expenses incurred in enforcing the covenants of the lease. Some of the foregoing provisions might signify elements of a closer relationship than that of lessor and lessee. These are the standard provisions of a mining lease. The element of control is limited to the fact that the work must be performed in a “good and miner-like fashion.” The supervision is left to the lessee. *44 Other covenants made by the lessee, as provided in the lease are: “Not to obstruct the main openings in any manner whatsoever. To stow no waste underground except with the consent and under the direction of the agents of said Company. “The Company acting through its agent or agents shall be the sole judge as to whether ore mined by Lessee can profitably be immediately shipped as direct smelting ore. “It is expressly understood and agreed that said Compa/ny reserves the property and the right of property in and to all ores extracted from said demised premises during the term, of this lease. All shipments of ore shall be made by said Lessee in the na/me of said Company account of this lease, and all payments for such shipments of ore shall be made to said Company account of this lease. (Italics added.) “Lessee shall be subject to the orders of the Company’s agents as to the use of cars, drifts, blacksmith shop and ore bins. “Lessee will promptly comply with and obey all rules, ordinances and la.w made by all legally constituted and/or appointed authorities in any way affecting said demised premises or operation thereof and will comply with all rules and regulations of insurance companies.” In the lease executed April 1, 1938, the lessee agrees, inter alia: “To do or cause to be done not less than 3 8-hour shifts of work per day excepting only those days when said Company is not carrying on operations in its said mine; * * * to adopt the same time for commencement and ending of each shift as is adopted by the Company in its work; to accurately observe the time when each person working on said demised premises commences and ends each shift’s work and to make or cause to be made a written record thereof which the Company shall at all times have the right to examine; to adopt and enforce the same rules and regulations with respect to Lessee’s employees as those adopted by the Company with reference to Company employees, to comply with all rules, regulations and requirements deemed desirable by the Company for its convenience and that of its employees and lessees or by it deemed necessary or desirable in the interest of health or safety; to at all times allow Company agents to enter upon said demised premises and to inspect same, *45 make surveys thereof, or take samples of ore or other materials therein * * * “It is mutually understood' and agreed that the title in and to all ores extracted from the demised premises shall at all times remain in the Company and that the same shall be shipped in the name of and sold by the Company to International Smelting and Eefining Company pursuant to the terms and conditions of the contract then existing between the Company and said International Smelting and Eefining Company and that the proceeds from the sale of such ore shall be received and distributed by the Company in the manner herein Specified.” The supplemental agreement simply provided that the plaintiff might deduct an additional two per cent of the ore values to protect them against the fluctuation of taxes. (The Unemployment Compensation Act, 'Chapter 1, Laws Utah 1936, Special Session, as amended by Chapter 43, Laws Utah 1937, provides that “No agreement by an individual in the employ of any person or concern to pay all or any portion of [the tax] * * * shall be valid.” Section 15, Chapter 1, Laws Utah 1936, Special Session). We shall hereafter set forth the contention of counsel for the plaintiff under five headings. 1. “The Unemployment Compensation Act makes no provision for an appeal by the claimant from the determination of ineligibility by the deputy.” Section 6, Chapter 43, Laws Utah 1937, Paragraph (b) reads: “A deputy or representative designated by the .commission, and hereinafter referred to as a deputy, shall promptly examine the claim andf on the basis of the facts found by him, shall either determine whether or not such claim is valid, and, if valid, the week with respect to which benefits shall commence, the weekly benefit amount payable, and the maximum duration thereof, or refer such claim* to an appeal tribunal, which shall make its decisions with respect thereto in accordance with the procedure prescribed in subsection (c) of this section, except that in any case in which the payment or denial of benefits will be determined by the provisions of section 5(d) of *46 this act, the deputy shall promptly transmit his full findings of fact with respect to that subsection to the commission which, on the basis of evidence submitted and such additional evidence as it may require, shall affirm, modify, or set aside such findings of fact, and transmit to the deputy a decision upon the issues involved under that subsection which shall be deemed to be the decision of the deputy. HE SHALL PROMPTLY NOTIFY THE CLAIMANT AND ANY OTHER INTERESTED PARTY OF THE DECISION AND THE REASONS THEREFOR. Unless the claimant or any such interested party within five calendar days after the delivery of such notification or within seven calendar days after such notification was mailed to his last known address, files an appeal from such decision and applies for a hearing, SUCH DECISION SHALL BE FINAL AND BENEFITS SHALL BE PAID OR DENIED IN ACCORDANCE THEREWITH. If an appeal is duly filed, the payment of any benefits with respect to the period prior to the final decision of the commission, shall be made only after such decision; provided, that if an appeal tribunal affirms a decision of a deputy, or the commission affirms a decision of an appeal tribunal, allowing benefits, such benefits shall be paid regardless of any appeal which may thereafter be taken, but if such decision is finally reversed, no employer’s account shall be charged with benefits so paid.” (Italics and caps, added.) The deputy is to make a finding based upon the facts found by him, or to refer such claim to an appeal tribunal. But in the case where the payment or denial of benefits will be affected by the provisions of section 5(d) relative to strikes, he shall refer the claim to the commission who shall affirm, modify or set aside his findings upon the issues involved under that subsection which shall be deemed to be the decision of the deputy. The only decision at this stage of the proceedings which the commission is to make is relative to section 5(d) and the decision of the commission relative to such subsection shall be the decision of the deputy. The next sentence reads: “He [the deputy] shall promptly notify the claimant and any other interested party of the decision and the reasons therefor.” It is contended by plaintiff that the decision referred to is the decision of the commission relative to subsection 5(d) *47 only. The interest of the claimant, however, would be an interest in the whole determination, that of the commission relative to section 5(d) plus that of the deputy relative to the findings he has made as to the relationship existing between the employing unit and the claimant. To say that the decision of the commission relative to the determination made under section 5 (d) is all that is to be in the notification sent the claimant is untenable. The commission determination is only part of the decision and when it is coupled with the findings of the deputy upon the relationship between the employing unit and the claimant, the decision becomes complete and of this complete decision is the claimant given notice by the deputy. To provide for such an elaborate system of appeal for the interested parties when the claimant is granted benefits and no appeal when the claimant is denied benefits seems untenable and a strained construction which would not effectuate the purposes of the statute or give interested parties an equal right of appeal. We hold the claimant is entitled to an appeal from any decision of the deputy, whether under section 5(d) or otherwise pursuant to the statute. 2. “The ‘appeal tribunal’ is without the power to reverse or set aside a determination of the deputy declaring an applicant ineligible for benefits.” Section 6(c) provides in part: “Unless such appeal is withdrawn, an appeal tribunal, after affording the parties reasonable opportunity for fair hearing, shall affirm or modify the findings of fact and decision of the deputy. * * *” In the instant case, the deputy denied benefits to the claimant upon the grounds that the claimant’s relationship with the employing unit was not within the act. The appeal tribunal overruled the findings of the deputy and found, the claimant was entitled to benefits within the act. The plaintiff contends that the appeal tribunal “shall af *48 firm or modify the findings of fact and the decision of the deputy” but that it cannot set aside .or overrule such findings. The rights established by the act are purely statutory and the procedure is statutory. The deputy, appeal tribunal and commission have only such authority as is expressly granted. The intention of the legislature is expressed in the act. Our purpose is to give effect to the rational intention of the legislative body creating this procedure. The deputy first makes his finding or initial determination. Section 6(b). From this finding or decision an appeal may be taken to the appeal tribunal who shall afford “the parties reasonable opportunity for fair hearing” and shall make its decision. Section 6 (c). From this decision another appeal may be taken to the commission by “any of the parties interested in a decision” and “by the deputy whose decision has been overruled or modified by an appeal tribunal.” (The question of a decision by the appeal tribunal which is not unanimous has not arisen as the appeal tribunal consisted of but one individual. Section 6 (e), Chapter 43, Laws Utah 1937. See Chapter 2, Sec. 6, Third Extraordinary Session Laws Colorado 1936, as amended by Chapter 260, Session Laws Colorado 1937). There is a thread of procedure running through Sec. 6. To state that once a deputy has made a decision it is final save “to affirm or modify the findings of fact and decision of the deputy” by the appeal tribunal is a unique interpretation. If the deputy denies compensation, then the only modification which could be made would be to allow some compensation. The amount of benefits to be given an individual is fixed by statute and it is purely a ministerial act. Once the determination of whether benefits Should be allowed or not is made, everything else is fixed by statute. “Any interested party” may appeal from any decision made during the proceedings and even the deputy may appeal under certain circumstances. The purpose of the act is to allow a “fair hearing” with ample opportunity for “any interested *49 party” to be heard and even to enable administrative officers to appeal from determinations which have been made contrary to their decisions. Sec. 6(e). The claimant had the right of appeal from the determination of the deputy and the appeal tribunal had the right to “modify,” affirm or set aside the decision of the deputy in the instant case. 3. “The Commission and its agencies are without power or jurisdiction to order an alleged employer to appear and submit evidence or contest a claim made by an applicant for benefits.” In section 6(b), it is provided: "* * * He [the deputy] shall promptly notify the claimant and any other interested party of the decision and the reasons therefore. Unless the claimant or any such interested party, * * * files an appeal from such decision and applies for a hearing, such decision shall be final and benefits shall be paid or denied in accordance therewith.” Section 6(c) provides: “* * * an appeal tribunal, after affording the parties reasonable opportunity for fair hearing, shall affirm or modify the findings of fact and decision of the deputy. The parties shall be duly notified of such tribunal’s decision * * Section 6(d) provides: “To hear and decide disputed claims, the commission shall establish one or more impartial appeal tribunals consisting in each case of either a salaried examiner, * * **or a body consisting of three members, one of whom shall be a salaried examiner, who shall serve as chairman, one of whom shall be a representative of employers and the other of whom shall be a representative of workers; * * *.” Section 6(e) provides: “The commission may on its motion affirm, modify or set aside any decision of an appeal tribunal * * * or direct the taking of additional evidence, or may permit any of the parties to such decision to initiate further appeals before it. * * * The commission shall promptly notify the interested parties of its findings and decision.” *50 Section 6(h) provides: “Any decision * * * shall become final * * * and judicial review thereof shall be permitted only after any party claiming to be aggrieved thereby has exhausted his remedies * * Section 6(i) provides: «* * * after the decision of the commission has become final, any party aggrieved thereby may secure judicial review thereof by commencing an action in the supreme court against the commission for review of its decision in which action any other party to the proceeding before the commission shall be made a defendant. * * *” The legislature contemplated that more than the claimant might be interested in the determination of the commission, perhaps the public or the family of the claimant. There is nothing to indicate that the alleged employing unit should be made a party to the suit unless it claims to be aggrieved. It might be contended that by the very nature of things the employing unit would be opposed to having benefits conferred upon one who was formerly “performing services for wages or under any contract of hire,” for them. The allowance of benefits increases or may increase the rate the employing unit may have to pay. Thereby it may be aggrieved. However, until the employing unit comes in and claims to be aggrieved and submits to the jurisdiction of the commission the determination of the commission will not be binding upon it. Section 11 (i) provides for the subpoenaing of witnesses but not parties. Under Section 11 (i) any person may be subpoenaed to submit evidence but by making an appearance as a witness, the commission does not obtain jurisdiction over the individual so as to make the decree or order binding upon the witness as a party. It is further provided in Section 11 (g) : “* * * The commission may require from any employing unit any sworn or unsworn reports with respect to persons employed by it which the commission deems necessary for the effective administration of this act. * * *” *51 Upon denial by the employing unit that the claimant is “employed by it,” the commission is not empowered to hold the employing unit for contempt but the courts must be resorted to and there such issue will be determined. The State Tax Commission may determine whether or not it will proceed against the employing unit to collect the tax. Section 14 (b). The district court will then determine if the claimant be employed by the employing unit within the meaning of the act. 4. “The Commission and its agencies are without power or jurisdiction to hear or determine the question of whether an alleged employer is liable for contributions to the fund. The Commission and its agencies are without power or jurisdiction to order or require an alleged employer to file wage reports.” This contention contains two parts: (a) The commission is without power to determine whether an alleged employer is liable for contributions; and (b) the commission is without power to order or require an alleged employer to file wage reports. (a) It is contended that this exaction of contributions is a tax and should be administered and supervised by the State Tax Commission. Article XIII, Section 11 of the Constitution of the State of Utah provides, inter alia: The State Tax Commission shall administer and supervise the tax laws of the State.” The question to be determined is whether “contributions” be a tax under the general taxing power of the state, whether “contributions” be a tax under the police power to alleviate “economic insecurity due to unemployment” which is a “serious menace to the health, morals, and welfare of the people of this state” or whether “contributions” be a license or fee incident to the regulation of unemployment. The last part of the question might be somewhat answered by the question, what is to be regulated? Is is a means of controlling business, labor, employers or employees or individuals having no relation to the payment of the “contri *52 butions?” The contributions are an excise for the specific purpose of protecting the state and the people who constitute the state by alleviating suffering due to economic insecurity incident to unemployment, and a means of protecting the health, morals and welfare of the people of the state. This is a tax and as the Supreme Court of the United States said in the case of Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 57 S. Ct. 868, 81 L. Ed. 1245, 109 A. L. R. 1327, it is not concerned whether a particular exaction is sustainable as an exercise of the police power or the taxing power of the state. This is not a regulatory measure. In the case of Beeland Wholesale Co. v. Kaufman, 234 Ala. 249, 174 So. 516, the Supreme Court of Alabama held that contributions were taxes. We so find. Constitutional provisions must be considered as limitations on legislative power where there is language of limitation or exception. Legislative power over taxation is plenary except where limitations or exceptions are expressed in the basic law. The provisions of Sec. 11 of the state constitution specifically vest the power of administering and supervising the tax laws of the state in the State Tax Commission. Therefore, that specific provision must be considered as a limitation on the power of the legislature to place the administering and supervising power in any other officer or commission. State v. Southern Pacific Company, 95 Utah 84, 79 P. 2d 25. Sec. 9 (c) specifically provides that “the state tax commission shall collect all contributions under this act.” Section 14 (b) provides, inter alia, “If, after due notice, any employer defaults in any payment of contributions or interest thereon, the amount due shall be collected by civil action in the name of the state tax commission * * The State Tax Commission is specifically charged with the responsibility of collecting the tax and when someone defaults then the tax commission is to start a civil action. The tax commission is to determine against whom they shall proceed and who is liable for the payment of contributions. *53 This is the function contemplated when the constitutional amendment was adopted placing upon the state tax commission the burden to “administer and supervise the tax laws.” (b) The (b) part of the contention has heretofore been determined in this opinion. The commission is not empowered to hold anyone in contempt for not filing a return when the employing unit denies the claimant is “employed by it.” The commission has power to order the “employing unit” to file a return but the “employing unit” is not in contempt if it does not file in accordance therewith. The fact finding body to determine who is entitled to benefits is the Industrial Commission. With the propriety of the procedure set forth in this act, this court is not concerned. The plaintiff has not been properly proceeded against and the order against plaintiff is vacated. 5. “The evidence is insufficient to support a finding that plaintiff was an employer of Hartle within the meaning of the Act.” It is not contested that the commission had the power to determine whether or not the claimant was entitled to benefits. Section 19 (j) provides, inter alia: “(1) ‘Employment’ subject to the other provisions of this subsection, means service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied. * * * “ (5) Services performed by an individual for wages shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the commission that— “(a) such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and *54 “(b) such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and “(c) such individual is customarily engaged in an independently established trade, occupation, profession or business.” Under the aforesetforth provisions of the leases, there are definite provisions made for the control and direction over the performance of the service both under the contract of hire and in fact. The only evidence that there is such a contractual relationship as a lessor-lessee relationship is found in the introductory provisions wherein it is stated the plaintiff does “hereby grant, demise and let unto said Lessee that portion of the company’s mining property situated * * It is specifically provided that the lessor reserves the property and the right of property in and to all ores extracted from said “demised” premises. There is provided in the lease a general right of control and direction over the relationship created under the contract. The claimant meets the requirements for one eligible for benefits. See Pottorff v. Fidelity Coal Mining Co., 86 Kan. 774, 122 P. 120; Industrial Commission v. Bonfils, 78 Colo. 306, 241 P. 735; McDermott v. State et al., 196 Wash. 261, 82 P. 2d 568. A contrary result was reached, though the same principles of law were applied, because the element of control was lacking in the case of Texas Co. v. Wheeless, 185 Miss. 799, 187 So. 880. The allowance of benefits is affirmed.