State ex rel. Davis v. Hix ( 1955 )

Lovins, President:

This proceeding comes here on writ of certiorari sued out by C. S. Davis, Director of Employment Security, hereinafter designated as director, against the Board of Review of the West Virginia Department of Employment Security, hereinafter designated as board; E. A. Hansbarger, Chairman of the West Virginia Department of Employment Security; W. A. Mitchell and Henry A. Walker, members of the Board of Review, hereinafter designated as chairman and members respectively; the Island Creek Coal Company, hereinafter designated as employer; and John Blaskewiecz, claimant, who will be hereinafter referred to as claimant.

The claimant was employed by the employer as a general laborer. He was separated from employment on the 4th day of April, 1952, as a consequence of a general reduction in the labor force.

Claimant filed his claim on April 4, 1952, and commencing on April 9, 1952, was paid unemployment compensation benefits until August 12, 1952, such payments aggregating the sum of $425.00. In the meanwhile he filed his application for old age benefits July 21, 1952, under Title II of the Federal Social Security Act.

He received his first payment under Title II of the Social Security Act on or about the 3rd day of September, 1952.

Claimant also applied for a miner’s pension during the second week of April, 1952 and received $100.00 per month from the United Mine Workers of America Welfare and Retirement Fund for the months of July, August and September, 1952.

The initial claim was allowed by the deputy director as above stated. No written decision however was filed by him. It is indicated however that the deputy sent to the employer Form T3 advising the employer that the claimant had made claim for maximum unemployment compensation benefits. The notice so sent to the employer did not definitely state that the claimant was eligible, that he was not disqualified, or that benefits would be paid. On the reverse side of the notice so sent to the employer, certain printed instructions appear indicating that if the employer knew of any reason for disallowance of compensation benefits, it should be noted thereon and filed with the Department of Employment Security.

No action was taken by the employer until sometime in August, 1952.

On the 28th day of August, 1952, the deputy director, at the request of the employer, rendered a decision that the claimant was available for full time employment for which he was fitted by prior training and experience as of August 12, and therefore, eligible for benefits without disqualification. The claimant ceased filing continued claims for unemployment compensation benefits on and after August 27, 1952.

The trial examiner, acting as an appeal tribunal, upon consideration of the record, held that the claimant was not entitled to any unemployment benefits. Such action of the tribunal was appealed to the board. The board held that he was entitled to compensation to and including August 12, 1952. The employer applied for and obtained an appeal and judicial review of the board’s order.

The Circuit Court of Kanawha County reversed the action of the Board and remanded the proceeding for further action.

It is to be noted that according to the opinion of the Circuit Court of Kanawha County, made a part of the record, only one question was decided by that Court. Should the deputy director have made a written decision at the inception of the claim? No other questions were passed on.

On the petition of the director, this Court granted a writ of certiorari to review the judgment of the Circuit Court of Kanawha County. Two questions are raised by this petition: (1) Does the statute require that the deputy director prepare and file a written statement of his reasons? (2) Was the claimant available for full time work for which he was fitted by prior training and experience at the time of the filing of his initial claim.

The rights of the claimant and the employer; the authority and power of the director and the board rest entirely on the applicable statute, Chapter 1, Acts of the Legislature, Second Extraordinary Session, 1936, as amended. That act has been amended numerous times. Section 2 of the original act authorizes the citation thereof as “Unemployment Compensation Law”. Such citation will be hereinafter used.

The director cites numerous cases to uphold the principle of administrative and contemporaneous construction of the statute.

Where the language of the statute is of doubtful meaning or ambiguous, rules of construction may be resorted to and the construction of such statute by the person charged with the duty of executing the same is accorded great weight. Daniel v. Simms, 49 W. Va. 554, 39 S. E. 690. See State v. Davis, 62 W. Va. 500, 60 S. E. 584; Thomas v. State Board of Health, 72 W. Va. 776, 79 S. E. 725; Brandon v. Board of Control, 84 W. Va. 417, 100 S. E. 215; State v. Sims, Auditor, 134 W. Va. 428, 433, 59 S. E. 2d 705; Ballard v. Vest and Others, 136 W. Va. 80, 65 S. E. 2d 649; State ex rel. v. Kan. Co. Court, 137 W. Va. 127, 70 S. E. 2d 260. But before any rules of construction should be applied to a statute, it must be ambiguous or of doubtful meaning. McLaughlin v. Morris, 128 W. Va. 456, 461, 37 S.E. 2d 85; Unemp. Com. v. Casualty Co., 130 W. Va. 147, 156, 42 S. E. 2d 820; Raynes v. Pencil Co., 132 W. Va. 417, 419, 52 S. E. 2d 248. As to what constitutes an ambiguity, see 50 Am. Jur., Statutes, §226.

Article 7, Section 3 of the Unemployment Compensation Law provides that the director shall appoint deputies to investigate and originally determine all claims for benefits. Article 7, Section 4 of the Unemployment Compensation Law provides as follows: “A deputy shall promptly investigate a claim and shall, after the establishment of the facts, determine whether or not such claim is valid, and, if valid, shall determine: (1) The week with respect to which benefits will commence; (2) The amount of benefit; (3) The maximum duration of benefits.

“After determination, the deputy shall promptly notify the claimant and the last employer of his findings and decision.”

Article 7, Section 8 of the Unemployment Compensation Law provides in part as follows: “A claimant, last employer, or other interested party, may file an appeal from the decision of the deputy within eight calendar days after notice of the decision has been delivered or mailed by registered mail to the claimant and last employer as provided in section four * * * of this article * * * ff

The words of the statute quoted above are plain in meaning and without ambiguity. They require a decision by the deputy in writing and that such decision be delivered or sent by registered mail to the claimant and last employer. This was not done in this instance.

The director argues that Form T3 on the reverse side of which is printed certain instructions provides sufficient notice to the employer and that it has been the practice and procedure of the Department of Employment Security to handle claims for such compensation in the manner indicated by this record. But that does not comply with the statute. We therefore conclude that non-compliance with the statute renders illegal the charge of the amount of compensation paid claimant to the merit rating account of the employer.

We are cited cases from other jurisdictions which seem to indicate that the procedure adopted by the Department of Employment Security is correct, but we prefer to base our conclusion solely on the applicable statute, which in plain and unambiguous terms, requires that a deputy make a decision and forward it by delivery or registered mail as above noted.

The foregoing disposes of the sole question decided by the Circuit Court of Kanawha County.

This however does not fully dispose of the questions fairly raised on the record. It is to be noted that this case is here on a writ of certiorari, as required by Article 7, Sections 27 and 30 of the Unemployment Compensation Law, as amended.

A writ of certiorari is somewhat different from an appeal and writ of error. Code, 53-3-2 provides: “In every case, matter or proceeding, in which a certiorari might be issued as the law heretofore has been, and in every case, matter or proceeding before a county court, council of a city, town or village, justice or other inferior tribunal, the record or proceeding may, after a judgment or final order therein, or after any judgment or order therein abridging the freedom of a person, be removed by a writ of certiorari to the circuit court of the county in which such judgment was rendered, or order made; except in cases where authority is or may be given by law to the circuit court, or the judge thereof in vacation, to review such judgment or order on motion, or on appeal, writ of error or supersedeas, or in some manner other than upon certiorari; * * * ”,

Code, 53-3-3 provides that the circuit court shall “ * * * review such judgment, order or proceeding, of the county court, council, justice or other inferior tribunal upon the merits, determine all questions arising on the law and evidence, and render such judgment or make such order upon the whole matter as law and justice may require * * * ”.

In the first point of the syllabus in Alderson v. Commissioners, 32 W. Va. 454, 9 S. E. 863, this Court said: “Upon a writ of certiorari used as an appellate proceeding to bring to the Circuit Court for review a judgment or order of an inferior tribunal, the Circuit Court should decide all matters of law and fact, including those on the merits fairly arising on the record, either affirming such judgment or order, or reversing or modifying it, and should render such judgment, as the inferior tribunal should have rendered, or remand it to that tribunal, where further proceedings are necessary with distinct decision on the points involved in the latter event.”

In this jurisdiction circuit courts, upon certiorari, review matters of law and fact and make such disposition of a case as “ * law and justice may require ’ Copley v. Trent, 117 W. Va. 768, 188 S. E. 138. See Taxi Co. v. Hudson, 103 W. Va. 173, 136 S. E. 833.

Varying uses have been made of the writ of certiorari in other jurisdictions. We have examined decided cases in other jurisdictions, but we are controlled by the statutes above noted and cases decided by this Court. Hence, the citation of decisions from other states would serve no useful purpose.

In compliance with our own statutes and decisions, we think the question of disqualification or eligibility of the claimant arises on the record. It is shown that the claimant made application for old age pension under Title II of the Federal Social Security Act; that he made application for an allowance by the United Mine Workers of America Welfare and Retirement Fund. Such action on the part of the claimant raises the question whether he was eligible or qualified for unemployment compensation benefits. Moreover, if he is ineligible or disqualified, when did such ineligibility arise or disqual-fication take place? Those questions should have been decided by the trial court. This Court should not decide questions which have not been decided by the trial court.

Accordingly, the judgment of the Circuit Court of Ka-nawha County is affirmed.

This proceeding is remanded to the Circuit Court of Kanawha County, with directions to pass on the questions above stated.

Affirmed; remanded with directions.