Klamath Irrigation District v. Employment Division

LANGrTRY, p. j. This appeal, pursuant to ORS 657.684, of a referee’s findings, conclusions and order presents the question whether an irrigation district existing under Oregon law and delivering over 96 percent of the water it handles for farming purposes is exempt from paying unemployment compensation taxes for the benefit of its employes. ORS 657.020(1) of the unemployment compensation Act was amended in 1973 to provide that political subdivisions are subject to — 63 — paying the tax. Irrigation districts are admittedly political subdivisions. However, the same legislative session re-enacted without change OES 657.045(1) and (2) (c) which provide: “(1) ‘Employment’ does not include agricultural labor. “(2) ‘Agricultural labor’ includes all services performed: ÍÍ* * * * # “(c) * * * [I]n connection with the operation or maintenance of ditches, canals, reservoirs or waterways not owned or operated for profit used exclusively for supplying and storing water for farming purposes.” This definition, with the exception of the clause “not owned or operated for profit,” came to the Oregon unemployment compensation Act in 1941 amendments via the Federal Social Security Act’s (see infra pp 65-66) definition of agricultural labor. Oregon Laws 1941, chs 258 and 443. Summarizing, the record before the referee demonstrated that the district served was originally in farms. It contains 39,930.57 acres with rights running with the land to water it handles. On account of urbanization and land subdivision some 1,361 acres of this land is now divided between about 1,100 owners who use slightly less than 4 percent of its water-right water, generally for esthetic and gardening purposes. The district also delivers water to some 15,000 acres under arrangements with the United States Government, apparently all of which is for farming purposes. There appears to he no dispute as to these summarized facts. The referee held, inter alia: “* # * [I]n subsection (e) [of OES 657.045(2)] ‘used exclusively’ means then no matter — 64 — how infinitestimal or de minimis the amount of water diverted to gardens or lawns may be, [district’s] delivery of such to the turnout points negates the intent of the statutory exclusion, as well as removing the services of [district’s] employes as exempt ‘agricultural labor.’ Admittedly this is a strict interpretation of the words ‘used exclusively for.....farming purposes’, but as prefaced herein all exclusions from the Employment Division Law are to be strictly construed against the employer and in favor of coverage for the employe * * It is initially contended by the Employment Division that the enactment of the provision in ORS 657.020(1) that “political subdivisions” shall pay the tax takes precedence over the exemption for agricultural labor re-enacted in ORS 657.045(1) and (2)(c). If this contention is adopted, we would entirely ignore the agricultural labor exemption provision. This we cannot do. The two provisions should be harmonized and given effect if possible, particularly in view of the fact they were both enacted at the same legislative session. State v. Pearson, 250 Or 54, 58, 440 P2d 229 (1968); Daly v. Horsefly Irrigation District, 143 Or 441, 446, 21 P2d 787 (1933). The central question, then, is whether the words “used exclusively for supplying and storing water for farming purposes” are to be applied strictly, exactly and literally in determining whether the exemption applies. That is what was done in the quotation from the referee’s decision, supra. The referee relied on Standard Oil Co. of Louisiana v. Fontenot, 198 La 644, 4 So 2d 634 (1941), and Just-A-Mere Farm v. Peet, 247 Or 413, 430 P2d 987 (1967). For reasons that are explained infra, we think the rules of these cases were misapplied. The first case involved a license tax and in it the Louisiana court said exemption provisions in statutes imposing taxes would be strictly construed. As — 65 — a general rule, that may he correct, but the rule has its own exceptions. For example, People’s Educational Camp Society, Inc. v. C. I. R., 331 F2d 923 (2d Cir), cert denied 379 US 839 (1964), was a case involving a statutory exemption from income taxes imposed under the Internal Revenue Code. It gave the exemption to organizations “operated exclusively for the promotion of social welfare * * Construing this provision, the court said: “# * # wor¿ ‘exclusively’ as used * * * has not been given a strict interpretation * * * but rather has been interpreted to mean ‘primarily.’ * * *” 331 F2d at 931. See also Sugarman & Pomeroy, Business Income of Exempt Organizations, 46 Va L Rev 424, 425 (1960), in which the authors said: “The term ‘exclusively’ is not applied literally as meaning 100 per cent, but rather has been applied as meaning ‘primarily.’ * * *” (Footnote omitted.) In real property taxation a similar construction is often applied as was done in Plattsburgh Col. B. & E. Ass’n v. Assessors, 43 Misc 2d 741, 252 NYS2d 229 (Sup Ct Clinton County 1964). The clause there exempted real property “ * * used exclusively for carrying out’ ” “ ‘charitable * * * educational * * * purposes * * *.’ ” The court held the word “exclusively” thus used means “the primary use of the realty must be in furtherance of the permitted purposes and an occasional minor deviation does not result in tax-ability [citing authorities] * * 252 NYS2d at 234, 237. See, for the same rule applied to real property taxation in Oregon, Mult. School of Bible v. Mult. Co., 218 Or 19, 343 P2d 893 (1959). However, the more pertinent inquiry at bar is the construction to be placed upon the word “exclusively” in exemption clauses set in the context of unem — 66 — ployment compensation tax statutes. Social security and unemployment compensation taxes are imposed to accomplish a socially beneficial purpose, and will be construed to accomplish that legislative purpose when exemption provisions are ambiguous. Puget Sound B. & D. Co. v. S. U. C. C., 168 Or 614, 621, 126 P2d 37 (1942); Holmes v. Morgan, 10 Or App 242, 498 P2d 830, Sup Ct review denied (1972). Both were developed in the states in substantial part from the wording of the Federal Social Security Act. The taxes imposed in both are used for the specific purpose, whereas real property and income taxes universally are imposed to raise general government revenue. Thus, different rules of construction may be applied to them, depending upon the purpose to be served in each statute.① In a part of Just-A-Mere Farm v. Peet, supra, to which the referee did not refer in his decision, the Oregon Supreme Court said: “We begin our inquiry into the meaning of the term ‘agricultural labor’ and ‘farm’ as used in ORS 657.045 fully cognizant of the fact that the meaning of words must he derived from the purpose for which they are used. The legislative his — 67 — tory of the Oregon Department of Employment Law and the related federal unemployment legislation throws little light upon the purpose for excluding agricultural labor from the coverage of the respective acts * * *. «#**** “* * * [T]he meaning of the term ‘agricultural labor’ is by no means clear * # (Emphasis supplied.) 247 Or at 416-18. The court then went on to hold that forest or tree farming does not involve agricultural labor within the purpose of the Act. The court did not specifically consider the meaning of the clause in question at bar, but it did say: “* * * The specific activities listed in the statute to help further define ‘agricultural labor’ or ‘farm’ with the possible exception of the activities specified in subsection (2)(d) [which have to do with food processing and packing] all fit within the concept of farming as it is understood in common parlance * * 247 Or at 419. This language appears to say that the exception for irrigation employes describes them as agricultural laborers.② Our research and the briefs that have been presented do not reveal any case where the specific — 68 — clause under consideration has been construed by any court. However, in Big Wood C. Co. v. Unemployment C. Div., 61 Idaho 247, 100 P2d 49 (1940), the Idaho Supreme Court held that employes of an irrigation district were exempt “agricultural labor.” At that time the federal act and state acts patterned thereon, including Idaho’s, (which was almost universally the practice) simply exempted “agricultural labor” without defining the term. But the Idaho court pointed out that the Federal Social Security Act, from which the exemption term “agricultural labor” had been taken, was, in 1939, amended by the United States Congress to define “agricultural labor” as “* * * labor ‘in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways used exclusively for supplying and storing water for farming purposes.’ (Sec. 209 (15) (1) (3), p. 1467.) * * *” 61 Idaho at 253. See also Roberts v. Unemployment Comp. Com., 215 Or 100, 103, 332 P2d 1067 (1958). As we noted at the start of this opinion, this Social Security Act definition came into the Oregon unemployment compensation Act, word for word, in 1941. Another category of exemptions using the word “exclusively” exists in both social security and unemployment compensation statutes. This other category existed as ORS 657.070 in the Oregon Unemployment Compensation Law until it was repealed by Oregon Laws 1971, ch 463. It provided: “ ‘Employment’ does not include service * * * exclusively for religious, charitable, scientific, literary or educational purposes * * This provision apparently was never construed in Oregon. See Willamette View Manor v. Peet, 252 Or 142, 448 P2d 546 (1968). But it frequently has been construed in the context of both social security and unemployment compensation acts elsewhere. — 69 — National Capital Girl Scout Coun. v. District Unemp. Comp. Bd., 231 F Supp 546 (DDC 1964), presented a case where the same clause as that quoted above from former ORS 657.070 was enacted. Later a legislative amendment removed the word “educational.” The Girl Scout organization claimed exemption as being exclusively charitable after the “educational” exemption was eliminated. The court found the organization to be partly — quite a bit — educational. Yet, the court found the organization was primarily charitable and exempt under the then remaining provisions of the clause. The court said: “* * * Obviously, the word ‘exclusively’ must not be taken literally. The Court construes it to mean ‘primarily’ or ‘principally’ or ‘in large part’. We were admonished of old that, ‘The letter kxlleth but the spirit giveth life’. This is the principle that we must invoke in construing words that are not words of art * * 231 F Supp at 547. The appellate court of Puerto Rico, in an exhaustive survey of the rules of construction applying to cases like this, agreed with the construction given in the Girl Scout case to the word “exclusively” used in the same clause in another unemployment compensation case. Sec. of Labor v. Asoc. de Senoras Damas, 94 PRR 131 (1967) (see n 1). The leading case on the subject, often cited, is Better Business Bureau v. United States, 326 US 279, 66 S Ct 112, 90 L Ed 67 (1945). This case involved payment of social security taxes for employes of a Better Business Bureau, which claimed its purpose was “educational” under the same exemption clause we have quoted above. Referring to the word “exclusively” in this context, the United States Supreme Court said: “* * * This plainly means that the presence of a single noneducational purpose, if substantial — 70 — in nature, will destroy the exemption * * *.” (Emphasis supplied.) 326 US at 283. We have found no case where the context is like that in this case where a court has so narrowly construed the word “exclusively” as did the referee at bar. Just-A-Mere Farm v. Peet, supra, tells us in the context of an unemployment compensation agricultural labor exemption case that the meaning of the words we here construe “must be derived from the purpose for which they are used * * *.” The exemption must be assumed to have been included and re-enacted by the legislature for some purpose. Obviously, it was not for the benefit of the employes. See Stromberg Hatchery v. Ia. Emp. Sec. Comm., 239 Iowa 1047, 33 NW2d 498 (1948). And it is difficult to imagine an irrigation district where some minimal part, at least, of water delivered will not be used for a purpose other than a farm purpose. Thus, it is logical that the exemption was included for the purpose of relieving the district of the burden of the tax if none of the water is sold for a profit, and if the organization is devoted “primarily” or “principally” or “in large part” to delivering water for farm purposes, and if the nonfarm purposes to which the water is put are not “substantial.” Obviously, on the facts, this test of qualification for the exemption is fulfilled by the petitioner-district. If it is desirable from the standpoint of public policy and socially beneficial results that the employes of such organizations be covered by the Act, the legislature can accomplish that objective with a simple amendment to the Act. Reversed. Footnotes [①] For exhaustive discussions of this subject in the context of the word “exclusively” used in cases involving exemptions from taxation for unemployment compensation of employers, see the opinions in In Re Gem State Academy-Bakery, 70 Idaho 531, 224 P2d 529 (1950), and Sec. of Labor v. Asoc. de Senoras Damas, 94 PRR 131 (1967). We have not overlooked the following language in Rahoutis v. Unemployment Commission, 171 Or 93, 117, 136 P2d 426 (1943), a case involving construction of the statutes defining coverage under the Oregon unemployment compensation Act where the court is referring to the opinion in Guar. Mtg. Co. of Nashville v. Bryant, 179 Tenn 579, 168 SW2d 182 (1943): “* * * The Tennessee court held that the statute of that state should be strictly construed as a taxing statute, a proposition which was considered and rejected by this court in the Singer case [Singer Sew. Mach. Co. v. State U. C. C., 167 Or 142, 103 P2d 708, 116 P2d 744, 138 ALR 1398 (1941)] * * *.” [②] The case we note in the next paragraph was decided in 1940 when state unemployment acts exempted agricultural labor, but had not yet been amended to incorporate the Social Security Act definitions of agricultural labor. In it, the Idaho Supreme Court specifically held, sans statutory definition of the term, that employes of an irrigation district like the one at bar were engaged in agricultural labor. Big Wood C. Co. v. Unemployment C. Div., 61 Idaho 247, 100 P2d 49 (1940). (For a discussion of the history of the agricultural labor definitions in the closely related social security and unemployment compensation laws, see Roberts v. Unemployment Comp. Com., 215 Or 100, 332 P2d 1067 (1958).)