Broadway v. Alabama Dry Dock & Shipbuilding Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The appellee, Alabama Dry Dock and Shipbuilding Company, made application, as provided in Subsection (H), Section 204, Tit. 26, Code 1940, to the Director of Industrial Relations for a review as to the determination of its benefit wage percentageand its contribution rate as fixed by its benefit wagepercentage, effective April 1, 1941. The director denied its application on June 30, 1941, and on July 20, 1941, appellee applied to the Circuit Court of Mobile County and obtained an appeal from said ruling of the director, and on the hearing of said appeal, the court reviewed the director's determination of appellee's benefit wage percentage and his contribution rate as fixed by its benefit wage percentage, holding that the director erred in fixing appellee's benefit wage percentage for the year beginning April 1, 1941, at 25.02 per cent, and fixed 15 per cent as correct. Applying this percentage to the state's experience factor of 13 per cent, ascertained that its contribution rate was 1.5 per cent, and not 2.5 per cent as fixed by the director, and as a result of these errors appellee paid $106,299.84 into the fund in excess of its liability, and is entitled to a refund thereof. From that judgment the director appealed.

The appellant's major contention is that the statute is remedial and when liberally interpreted a review of the state's experience factor fixed by the director for said year is within the scope of the taxpayer's appeal from the director's denial of his petition for review, and that the circuit court erred in not reviewing the director's fixation of the state's experience factor.

We are not of opinion that the rule applicable to the interpretation of remedial statutes is here applicable. This statute is original and not remedial, creating rights and duties in derogation of the common law, is paternalistic in character, and invokes and applies the taxing power of the state. Carmichael v. Southern Coal Coke Co., 301 U.S. 495,57 S.Ct. 868, 874, 81 L.Ed. 1245, 109 A.L.R. 1327; 50 Am.Juris, p. 33, § 15. The United States Supreme Court, in the cited case, sustained this act against an attack that it violated the Constitution of the United States, in that it took private property for private uses. The Court, speaking through Stone, J., observed:

"The purposes specified by the Act requires our consideration of the objections pressed upon us that the tax is invalid because the purposes are invalid, and because the methods chosen for their execution transgress constitutional limitations. It is not denied that since the adoption of the Fourteenth Amendment state taxing power can be exerted only to effect a public purpose and does not embrace the raising of revenue for private purposes. [Omitting authorities.] The states, by their constitutions and laws, may set their own limits upon their spending power [Omitting authorities], but the requirements of due process leave free scope for the exercise of a wide legislative discretion in determining what expenditures will serve the public interest.

"This Court has long and consistently recognized that the public purposes of a state, for which it may raise funds by taxation, embrace expenditures for its general welfare. [Omitting authorities.] The existence of local conditions which, because of their nature and extent, are of concern to the public as a whole, the modes of advancing the public interest by correcting them or avoiding their consequences, are peculiarly within the knowledge of the legislature, and to it, and not to the courts, is committed the duty and responsibility of making choice of the possible methods. [Omitting authorities.] As with expenditures for the general welfare of the United States [Omitting Authorities], whether the present expenditure serves a public purpose is a practical question addressed to the lawmaking department, and it would require a plain case of departure from every public purpose which could reasonably be conceived to justify the intervention of a court. [Omitting Authorities.] The present case exhibits no such departure.

"(a) Relief of Unemployment as a Public Purpose. Support of the poor has long been recognized as a public purpose. [Omitting authorities.) We need not labor the point that expenditures for the relief of the unemployed, conditioned on unemployment alone, without proof of indigence of recipients of the benefits, is a permissible use of state funds. For the past six years the nation, unhappily, has been placed in a position to learn at first hand the nature and extent of the problem of unemployment, and to appreciate its profound influence upon the public welfare. Detailed accounts of the problem and its social and economic consequences, to be found in public reports of the expenditures of relief funds, and in the studies of many observers, afford a basis for the legislative judgment. It suffices to say that they show that unemployment apparently has become a permanent incident of our industrial system; that it varies, in extent and intensity, with fluctuations in the volume of seasonal businesses and with the business cycle. It is dependent, with special and unpredictable manifestations, upon technological changes and advances in methods of manufacture, upon changing demands for manufactured products — dictated by changes in fashion or the creation of desirable substitutes, and upon the establishment of new sources of competition.

"The evils of the attendant social and economic wastage permeate the entire social structure. Apart from poverty, or a less extreme impairment of the savings which afford the chief protection to the working class against old age and the hazards of illness, a matter of inestimable consequence to society as a whole, and apart from the loss of purchasing power, the legislature could have concluded that unemployment brings in its wake increase in vagrancy and crimes against property, reduction in the number of marriages, deterioration of family life, decline in the birth rate, increase in illegitimate births, impairment of the health of the unemployed and their families and malnutrition of their children.

"Although employment in Alabama is predominantly in agriculture, and the court below found that agricultural unemployment is not an acute problem, the census reports disclose the steadily increasing percentage of those employed in industrial pursuits in Alabama. The total amount spent for emergency relief in Alabama, in the years 1933 to 1935, inclusive, exceeded $47,000,000, of which $312,000 came from state funds, $2,243,000 from local sources and the balance from relief funds of the federal government. These figures bear eloquent witness to the inability of local agencies to cope with the problem without state action, and resort to new taxing legislation. Expenditure of public funds under the present statute, for relief of unemployment, will afford some protection to a substantial group of employees, and we cannot say that it is not for a public purpose.

"The end being legitimate, the means is for the legislature to choose. When public evils ensue from individual misfortunes or needs, the legislature may strike at the evil at its source. If the purpose is legitimate because public, it will not be defeated because the execution of it involves payments to individuals. * * *"

In the interpretation and application of statutes of this class, it is a well settled rule, that they are to be strictly construed against the taxing power and favorably to the taxpayer. Westenhaver v. Dunnavant, 225 Ala. 400, 143 So. 823; 18 Ala.Dig. 139, Statutes, 239; State v. Seals Piano Co.,209 Ala. 93, 95 So. 451; 18 Ala.Dig. 141, Statutes, 245.

The state's experience factor was not within the scope of the taxpayer's petition for review authorized by the statute. The statute provides:

"Any employer may apply to the director for and shall be entitled to a review as to the determination of his benefitwage percentage and his contribution rate as fixed by hisbenefit wage percentage, provided such application is filed within sixty days of the date of the mailing by the director to the employer of the notice of such determination. Pending suchreview such employer shall withhold and transmit employeecontributions and make all contribution payments otherwiserequired by this chapter, at contribution rates fixed by thedetermination sought to be reviewed; and resulting overpayments or underpayments of contributions by the employer, shall, uponany redetermination, be adjuster or refunded pursuant tosection 243 of this title. Any employer may within thirty days after the date of the mailing by the director to such employer of notice of the ruling of the director upon such application for review appeal such ruling to the circuit court of any county wherein the employer is engaged in doing business, upon such terms and upon giving such security for costs as the court may upon application prescribe; trial in that court shall be de novo with respect to his benefit wage percentage. Andredetermination of benefit wage percentage, whether by thedirector or the court on appeal, shall not be effective as toan employee contribution rate before the calendar quarter firstbeginning after such redetermination." [Italics supplied.]

This section clearly limits the review to a taxpayer's benefit wage percentage and his contribution rate as fixed by his benefit wage percentage. Expressio unius est exclusio alterius. 50 Am.Juris. 450, § 429. The review authorized by the appeal to the circuit court can be no broader than the review authorized by the taxpayer's application to the director. The statute not only requires prompt action on the part of the taxpayer to obtain the review, but contemplates an early determination of the controversy by the director and the court. The taxpayer's benefit wage percentage and his contribution rate is fixed by the director on a survey of the particular business of the taxpayer and its scope; while the state experience factor is fixed by a survey of all of the employers in the state within the influence of the act, as stated in brief, more than 6,000 scattered over the state.

The taxpayer is required to give security for costs of the appeal, and if his appeal is to be burdened by a re-survey on evidence offered in respect to all such employers, it would be so burdensome, that the taxpayer would often suffer the imposition of an unwarranted tax, rather than assume the risks resulting from such review, and such review would prolong the litigation intolerably. In the meantime the taxpayer must continue to pay at the erroneous fixed rate, pending his appeal.

The provision that the "trial in that court shall be de novowith respect to his benefit wage percentage," clearly limits the scope of the hearing on the appeal and contemplates that the rate will be determined anew on evidence adduced by the parties, without any presumption in favor of the director's decision or previous fixation. See 25 C.J.S., De, p. 1011, Notes 36-38; Collier Willis, Ltd., v. Astor, 9 Cal.2d 202,70 P.2d 171, 173; 18 C.J., De Novo, p. 486; Black's Law Dic. (1891) p. 230, De Novo.

The appellant insists that the court erred in treating the employees of the appellee as maritime workers, and in applying the fractional formula provided for in § 204(B) in the reduction of the employees' benefit wage. The argument is that the court ignored the provisions of Section 211, that "Until such determination of the director, no industry shall be deemed to be a maritime industry." The agreed statement of facts clearly shows that this status had been determined by the director effective February 1, 1940, and said employees had been in this class previous to such determination. We are of opinion, therefore, that the quoted provision of Section 211 is clearly without application, and the court did not err in applying the fractional formula. Metcalf et al. v. Department of Industrial Relations et al., 245 Ala. 299, 16 So.2d 787.

There can be no doubt that the legislature had plenary power to authorize and provide a review of the fixation by the director of the state's experience factor, but there is nothing in the provisions of § 204(H), nor in the provisions of § 243, or any other part of such law, that authorizes such review. Why? Because the legislature intended, that aside from the limited review authorized by § 204(H), and after the expiration of sixty days, the rate as fixed should be non-reviewable.

Where applications for adjustments and refunds are made under § 243, Tit. 26, Code 1940, it must be assumed that the contribution rate fixed by the director is correct, and conclusively so. Whether or not there are erroneous payments or contributions, interest and penalties must be determined in the light of the contribution rate previously fixed. The legislature certainly did not contemplate, after the lapse of three years and more, the director could open up and go into, review and redetermine the state's experience factor, or the contribution rate of the employer and his employees. Such ruling would confound and make uncertain the law and the rights of taxpayers, and would jeopardize the integrity of the trust fund. The provisions of § 243, authorizing adjustments and refunds, contemplates that credit may be given on current taxes for the amount of such erroneous payment, or if this cannot be done, refund of the amount of such erroneous payment.

The trial court fell into a technical error in rendering a personal judgment against the director, and authorizing issuance of execution for its collection. The form of judgment should be one requiring the Director, Frank R. Broadway, to allow adjustments by giving credit on current taxes due, or refund the sum of money resulting from such overpayment, and pay the costs of the proceeding. Code 1940, Tit. 26, § 243.

Other questions suggested are not pressed.

We find no other error on the record, and the judgment, as here corrected, will be affirmed.

Corrected and affirmed.

THOMAS, LIVINGSTON, and STAKELY, JJ., concur.

GARDNER, C. J., and FOSTER and SIMPSON, JJ., dissent in part, as stated in the opinion of FOSTER, J.