Dana Corp. v. Employment Security Commission , 371 Mich. 107 ( 1963 )

371 Mich. 107 (1963) 123 N.W.2d 277

DANA CORPORATION
v.
EMPLOYMENT SECURITY COMMISSION.

Calendar No. 23, Docket No. 49,555.

Supreme Court of Michigan.

Decided September 4, 1963.

Dickinson, Wright, McKean & Cudlip (Richard C. Van Dusen, of counsel), for plaintiff.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and John J. Long, Assistant Attorney General, for defendant.

O'HARA, J.

Dana Corporation, plaintiff-appellant and the Michigan employment security commission stipulated facts before a referee of that commission to whom Dana Corporation had appealed from an administrative redetermination of its contribution rate on its chargeable payroll for employment security tax purposes for the year 1957.

Successive decisions by the referee, the appeal board majority, and the circuit court of Ingham county, affirmed the administrative decision.

The question on appeal to this Court is identically stated by appellant and appellee:

"Was appellant, Dana Corporation, on June 30, 1956, a ``qualified employer,' as that term was used in sections 19 and 22 of the Michigan employment security act?"^[1]

The stipulation of facts printed in the joint appendix of record in this Court is at variance with the stipulation of facts quoted in appellant's brief. The italicized portion of the following quotation was omitted from the joint appendix:

"Consequently it [Dana] was not, on September 1, 1955, a ``qualified employer' under section 19 (a) (1) of the act, unless it acquired such status by virtue of the transfer to it of a portion of the rating account balance of Murray Corporation of America as hereinafter described, which conclusion Dana Corporation vigorously denies."

The referee also omitted all of the foregoing quotation in his opinion — which is part of the appendix — with the following observation:

"(NOTE: Omissions consist of legal conclusions, not factual data, and are left out by the referee to avoid confusion.)"

The omitted portion of the stipulation while stated in legal conclusionary terms is also a statement of ultimate fact which limited the interpretation of the term "qualified employer" as used in sections 19 and 22 of the involved statute, for the purpose of this case.

When the inconsistency was noted in this Court, we directed the clerk to inquire of both counsel which version of the stipulation was actually agreed upon before the referee. Counsel apprise us by letter to our clerk that the omitted language was contained in the stipulation and should have been included in the joint appendix. We accept, therefore, the corrected version as controlling.

From this acceptance it follows that the referee was without authority to alter the terms of the stipulation by any omission therefrom, as much as by any addition thereto.

To the bench, the bar, and administrative agencies, be it known herefrom that the practice of submission of questions to any adjudicating forum, judicial or quasi-judicial on stipulation of fact, is praiseworthy in proper cases. It eliminates costly and time-consuming hearings. It narrows and delineates issues. But once stipulations have been received and approved they are sacrosanct. Neither a hearing officer nor a judge may thereafter alter them. This holding requires no supporting citation. The necessity of the rule is apparent. A party must be able to rest secure on the premise that the stipulated facts and stipulated ultimate conclusionary facts as accepted will be those upon which adjudication is based. Any deviation therefrom results in a denial of due process for the obvious reason that both parties by accepting the stipulation have been foreclosed from making any testimonial or other evidentiary record.

This is not to say, of course, that the hearing officer or judge may not reject any offered stipulation as incomplete or legally erroneous. The concerned adjudicator has not only that right — he has that duty. But as previously indicated, the time so to do is before final acceptance of the stipulation, not after.

The most cursory review of the record here reveals that the majority of the appeal board, by disregarding the omitted portion, reached a conclusion not probable and perhaps not even possible had the omission been considered.

The majority appeal board decision recites:

"It is the opinion of this appeal board that the position assumed by Dana Corporation [that there was a break in the 36-month period, preventing it from being a ``qualified employer'] is not tenable for the reason that Dana Corporation at all times during the times involved in this case was an ``employer' within the meaning of section 41 of the act, and, being such ``employer,' continued at all such times to be a ``qualified employer' within the meaning of section 19(a)(1) of the act since there is no way provided in the act by which an ``employer' under section 41 of the act can be divested of his character as a ``qualified employer' in the sense of section 19(a)(1) of the act." (Emphasis supplied.)

Such finding, of course, as urged by appellant, is at complete variance with the accepted stipulation that:

"Between December 26, 1954, and September 1, 1955, Dana had no employees in Michigan. Consequently, it was not on September 1, 1955, a ``qualified employer' under section 19(a)(1) of the act unless it acquired such status by virtue of the transfer to it of a portion of the rating account balance of Murray Corporation of America, as hereinafter described, which conclusion Dana vigorously denies." (Emphasis supplied.)

It cannot be stipulated that appellant "was not a ``qualified employer' under section 19(a)(1) of the act unless it acquired such status by virtue of the transfer to it of a portion of the rating account of Murray Corporation," and at the same time base a finding that it was a "qualified employer" because "there is no way provided in the act by which an employer under section 41 of the act can be divested of his character as a ``qualified employer' in the sense of section 19(a)(1) of the act."

Irrespective of the effect of the stipulation, however, the minority opinion of the appeal board is, we believe in accord with the intent of the statute under ordinary rules of construction. The pertinent excerpt is here quoted:

"It is my conclusion, therefore, that as of the date of the transfer from Murray Corporation to Dana Corporation, * * * the transferor was not a ``qualified employer' by virtue of the negative balance being transferred to the solvency account as of the previous computation date, June 30, 1955. Under these circumstances Dana Corporation, the transferee, had an election under the act to become or not become a ``qualified employer' by replacing or not replacing a proportionate share of the negative balance in the solvency account. Dana Corporation elected not to make such replacement and not to become a ``qualified employer.'

"It is my conclusion, therefore, that Dana Corporation was not in respect to the year 1957 a ``qualified employer' within the meaning of section 19(a)(1) of the act, and that, therefore, its contribution rate for 1957 should have been established at 27% in accordance with section 13^[2] of the act." (Emphasis supplied.)

This legislative intent is indicated by the use of the distinguishable terms — "qualified employer" and "employer." The option granted in subdivision (b) (3) of the statute^[3] in the following language is also compelling of the rationale of the minority opinion:

"If on the date of the transfer the transferor was not a ``qualified employer' under subsection (b) of section 19 of this act because a negative balance had been transferred from his rating account to the solvency account on 1 or more of the 3 immediately preceding computation dates, the transferee shall nevertheless be deemed a ``qualified employer' if he replaces his proportionate share of all negative balances which had been transferred from the transferor's account to the solvency account on all such computation dates." (Emphasis supplied.)

The quotation marks enclosing the term "qualified employer" are the legislature's, indicating to us the special and distinguishable nature of the term, and that term must be considered to have a constant meaning. For this reason, we do not completely understand, nor can we accept as correct the statement in the majority opinion:

"The word ``qualified' remains constant in meaning but it is impossible that the term ``qualified employer' can remain fixed and unalterable regardless of the exigencies of context."

We are of the opinion that had the legislature so intended it would have enclosed only the word "qualified" in quotes and not the phrase "qualified employer."

We need not discuss the opinion of the trial judge. It was delivered from the bench and consisted of an adoption of the majority opinion which we have here analyzed.

The judgment affirming the decision of the Michigan employment security commission is reversed. The cause is remanded, with instructions to enter an order fixing appellant's contribution rate at 2.7% for 1957.

Under the circumstances of this record, we believe appellant should have costs.

CARR, C.J., and DETHMERS, KELLY, BLACK, KAVANAGH, SOURIS, and SMITH, JJ., concurred.

NOTES

[1] As in effect in 1956, see CLS 1956, §§ 421.19, 421.22 (Stat Ann 1955 Cum Supp §§ 17.520, 17.524). — REPORTER.

[2] CLS 1956, § 421.13 (Stat Ann 1960 Rev § 17.513). — REPORTER.

[3] As in effect in 1956, see CLS 1956, § 421.22 (Stat Ann 1955 Cum Supp § 17.524). — REPORTER.