*1 19, 1942) Nо. 6964 March In re refund of contributions of P. BATT under G. Unemployment Compensation Law, BATT, P. G.
Appellant, v. UNEMPLOYMENT COMPENSA- TION DIVISION OF INDUSTRIAL ACCIDENT IDAHO, Respondent. BOARD OF
(123 (2d) 1004) Langroise, Griffin, E. Baird H. S. Laurence W. Sam appellant. *2 Miller, Robertson, Bert H. Attorney General, M. Thos. Ennis, Jr., Attorneys General, B. Paul Assistant Respondent. AILSHIE, case, statement of the facts of J. —A appeal our the the decision on merits of must
rest, opinion detail in is set forth in sufficient the (“Concurring dissenting Chief Justice ; reason, no part”) and, for that further statement opinion. will be made in this facts case, jurisdiction questioning In this where no one is court, but, contrary, party every proceeding invoking jurisdiction urging it, feels, to exercise as he did in the writer case 578, 196, Cartin, Hull at Pac. 2d v. Idaho he wherein said: question [jurisdictional] was not “Since assignment party litigation
either no of error specified thereon, opinion it is writer question properly that the for decision.” is not before us assigned conclusion, likeA on a constitutional error, Company Big was reached Wood Canal Unemployment Div., 61 Idaho at 100 Pac. 2d C. it is where said: *3 any pass upon have not and do not considered
“We jurisdictional question appellant both case since this respondent the Industrial Accident contend jurisdiction pass had the this matter the Board on instance; appellate jurisdiction the first and that vested such this court orders.” review all 153, 157, Brainard, Idaho 39 In the matter of In re also Pac. 2d this court said: grounds public this upon policy, court “Based firm of constitutionality an the of has ofttimes reiterated that case, any unless act or statute will be determined in necessary absolutely in order to such determination is the determine the tutionality the case in consti- of which merits question.” has statute been drawn in such quoting from au- citing a long list of cases and After thorities, the concluded: law, no “According principles of to these well-defined right constitutionality an question has the the thereby, and then act, injuriously unless he is affected challenged the law.” party properly has when such effect, Garrity Cоmmissioners, see Board To the same 2d Idaho 34 Pac. 949. reasons, foregoing any the thinks For the writer dis- jurisdictional questions cussion the constitutional merely dicta. appeal, only controversy understand the
As I this be- Batt, appellant, us is as fore is liable for to whether Compensation Unemployment contributions under Law, upon wages performed (a) for labor of individuals products farmers; purchased by farm from him (b) performed for the same on farm kind of labor products “cоnsignment.” handled on so-called opinion recognize
The of the Chief Justice seems (a) purchased difference between work done on products (b) consigned products. farm I farm am distinguish legal unable material or difference between two. stipulation phase covering
The of facts follows: produce “That aside applicant from produce balance such processed as here- inafter set forth following ways: are secured in the applicant purchases grower
The the farmer portion crop of his which is marketable when sorted and graded. applicant To part enable to determine the purchased and to prepare the for market the same farmer applicant’s delivers at the shed or ware- house, bags contained in half as taken the farmer directly from the field as harvested. applicant comparatively also handles a small potatoes cоnsignment, in which case the farmer potatoes harvested,
delivers after the the field applicant processed as hereinafter .same stated and sold the there same is deducted from the sale price expenses, including charge processing *4 brokerage charge, and the paid balance to is the farmer. the produce
In case of all or non-market- culls other go by able are and to the farmer owned back producer direсts, or disposed as he and does not go into market.” stipulated that is further
It salable, and there is no market products are not “Such graded processed, and having them without for stated, in they are not salable and as hereinafter packed in in which as or the condition ultimate consumers bulk fields; that the United they are States harvested products distri- purchase said for government will processed.” so unless same are on relief bution facts, and ad- stipulation of is aрpears, from the It mitted, merely processing consists so-called that products sorting, washing grading these several farm and shipment market. crating them and packing or for and fact, the same stipulated found as a that It further is purchased con- on both do the work laborers on both. signed is identical products; that work hire, just does, appellant for that the It clear hire to do himself would have as the farmer work elsewhere, prepa- do, else to farm someone labor, the for For this products his market. ration “the price sale and deducted from appellant received charge and a processing broker- including a for expenses It the farmer.- charge,” paid the age balance portions of appears and unsalable that all culls further owner, after consigned returned products were completed. processing the so-called was consigned done to see wherein the work fail I done “аgricultural than labor” less products purchased by appellant, products upon the kind of same It all grown on his own farm. was him labor. reversed, both should be the Board order of processing purchased and those received products is here- consignment, The cause is so ordered. it Board, to take instructions with remanded herein accordance the views proceedings in further appellant. expressed. awarded Costs J., concurs. Budge, part. dissenting in
GIVENS, C.J., concurring *5 Appellant the date of the has since effective Un- employment Compensation (September Law Sess., 7) reports paid sec. filed and 12, 3d Ex. Ch. protest required by under said law in the the excise tax 19, 1941, appellant total On March amount of $2620.05. application refund, contending employes filed an his covered, engaged were not because labor. denying application From an order of the board appeal stipulation us on comes to summarized аs follows.
Appellant or is the and owns tenant of between lands, potatoes, upon 900 acres onions, he of farm raises carrots, lettuce, peas. and He also owns and operates sheds, processing two so-called not located on the Appellant cleans, grades, packs and farms. sheds all at these two produce the lands his own him, purchases from, those rented addition consignment, grown produce handles on similar by others, buyers, harvested all of which he sells to track jobbers, products lot car distributors. Such are not they saleable processed, unless have been and such processing necessary by is reason of state or federal regulations purchasers. requirements statutes or Rejected produce property remains farmer and is returned to him. processing operations The cleaning, so-called consist of
washing, cooling, sorting grading, vegetables, sizing, packing, icing, loading pоrtion the marketable change physically thereof. No is whatever made chemically vegetables. in the substance or structure of wages The paid contributions paid employes were for engaged operations, employes engaged in these and two duties, in clerical practically continuously and one processing operations seasonable, time. The unskilled, equipment specialized. labor and the is not This work is often done individual farmer his place by crews, own contract no which event tax charged or collected farmer. do Growers who their processing own pay no tax. produce appellant’s harvested on lands constituted by appellant processed at his sheds.
22% % until Apellant made contributions to United States as amended became the federal act end when effective, further no contributions were and after which required appellant by on account the Unitеd States the labor aforesaid. *6 employes payments received based former benefit
Some wage employ of upon earned in the part credits appellant. Board found the
The Accident services Industrial produce purchased or handled processing rendered exempt employ- consignment by appellant were not on subject wages are such services and for ment performed in tax, except that con- the services excise vegetables upon lands of which nection with labor, аppellant is owner or tenant are wages exempt paid are from said services for the taxes and ordered that levied, tax excise 22% % appellant appealed from that paid refunded. The be charged petition denying his for refund the order of against products processing labor in paid him and for e., by him, purchased him grown by not or raised i. both consignment. handled and on parties. by the jurisdiction was raised No however, court, to counsel spontе, sua submitted hereto presented and akin presently cases this other pro- jurisdiction court queries as to the this uncertain- ceeding herein, dependent two in effect amendment first, the constitutional whether ties — Accident appeal the Industrial a direct providing for legislature (1935 by the this submitted Board to people approved by the at L., p. 377) and ratified S. (1937 L., p. general S. election of November Accident 498), appeals the Industrial included unemployment security com- social Board in so-called pensation second, and, cases, is; whether herein by, the made and orders before, claims the same includes herein, paid by the asserted board, taxes refund of proceedings employer protest, or whether under cognizable of Idaho consti- solely properly and because tution, 2, 13, 20,1 by district courts article sections jurisdictional amount, and, sections 21 under within the justice by probate courts. 222 thereof suggest least Discussions in the briefs counsel at first, legis- questions: these two additional whether the appeals lature direct intended statute to cover kind; and, second, whether, since the was in effect board judge, them, jury, hearing prosecutor, before findings binding courts, their due would constitute process. party (they
It is doubtful either herein could have if not) jurisdictional questions have raised these because sought appellant statute, respondent relief under the (Brady asserted a travеrse under statute. judicial 2. power power “Sec. Judicial vested.—The —Where impeachments, of the state a of the as shall vested in a court for the trial of Court, Supreme courts, probate justices courts, district courts peace, Supreme and such other courts inferior to the Court may any incorporated city be established law for town.” legislature legis- 13. respecting “Sec. Power of courts.—The power deprive judicial shall department *7 lature have no to the of jurisdiction any power pertains rightly it as a co- department government; legislature ordinate provide necessary, of the but shall the proper system appeals, regulate by a law, of when proceeding the of powers methods of in the exercise their Supreme may of Court, all the courts below the so far as the same be done without conflict with constitution.” this “See.20. of Jurisdiction district court.—The district court shall original jurisdiction cases, equity, have in all both at law in jurisdiction appellate may by probate and such as be conferred law.” 2 probate 21. “Sec. Jurisdiction of courts.—The courts record, original jurisdiction shall be of courts and shall have in probate, persons, all matters of and settlement of estates of deceased appointment guardians; jurisdiction of also to hear and de- damage all termine cases wherein the debt or civil claimed does dollars, interest, sum five not exceed the of hundred exclusive of jurisdiction justices peace and concurrent with of the in criminal cases.” justices peace. county “Sec. 22. of Jurisdiction of the each —In justices peace be pre- of this state there shall elected peace jurisdiction scribed of law. Justices the shall have such may by law, they jurisdiction be conferred but shall not have of any controversy interest, shall be called property cause wherein the value the of or the in of amount dollars, exceeds sum three hundred exclusive property nor where boundaries title real question.” in
580 747, Place, 314; Taylor Girard, 242 Pac. 54 Ida. 41 Ida. v. 787, County, (2d) 773; Falls 36 Pac. Henderson v. Twin 97, 801.) (2d) 59 Ida. Pac. 80 response parties in their in All of briefs questionnaire position herein take the that the board has jurisdiction denying and that the orders made refunds appealable. directly were jurisdictional court, therefore, discussing itself, shadow-boxing questions way only be would a оpponent there is real views advanced because by no dispose might con- It be better to such counsel. possibly con- tentions at tinually increasing threshold of the influx kind, litigation than rather has, rule of indecisive silent wait until doubtful because thereof, acquiescence approval so intrenched in or become fraught difficulty and that its eradication be would procedure affecting perhaps not but with hazards rights resting upon juristic structure of substantive straw. questions ordinarily generally raised
However, not (In re by the parties will not court 153, 769), Brainard, (2d) consti Ida. 55 39 Pac. questions unless abso be determined tutional will Commissioners, lutely necessary. (Howell 6 v. Board of 665, 542; Davis, 154, v. 7 65 Pac. McGinness Ida. 53 Ida. Pac. 291, Village Grangeville, 9 364; v. Ida. 74 Jack Dunbar, 671, Novelty 969; Mills v. 11 Ida. 83 Co. Pac. Adair, 790, 53; 932; Kimbley v. 32 Ida. 189 Pac. Pac. Allmon, Carter, 424; Logan In re 49 Ida. 288 Pac. v. County 528; Garrity v. Board 294 Pac. 50 Ida. Commissioners, (2d) 949; In re 54 Ida. 34 Pac. State, supra; Ida. Pac. Brainard, Albrethsen Co., 437; Mining (Ida.) (2d) McLean v. Hecla Nevertheless, 299.) court has under similar (2d) questions. passed considered circumstances “However, fact submitted *8 view of argued here, they we to counsel have it (Hull Cartin, question.” v. have consider concluded 196.) 578, 596, however (2d) Pac. We will 61 at 105 Ida. course, such re pointing the hazards of out again, but Unemployment Com- serve, Big Co. v. as in Wood Canal
581 pensation Division, 247, 49, (2d) Ida. 61 100 Pac. jurisdictional questions proceed merits of the controversy. legislature
The by criterion is whether the intended “agricultural phrase exempt opera- labor” to tions agricul- carried on herein. The board classified as appellant tural ployes all the by labor work done and his em- produce him, appeal on and the does same, involve need not consider further. we it The entire appellant opinion of the the activities that of the employes and his products purchased on out- right by producers growers him from other are in the category, same and the order board was in this particular incorrect. There remains for determina- tion the classification the work done in connection with by appellant consignment. handled purpose
The legisla- the statute as declared ture is to ameliorate unemployment. (Sec. 2, conditions of 12, 3935, p. 21.) legislature Ch. 3d Ex. Ses. has the right grant exemptions 5, (Art. 7, from taxation. Sec. Idaho Constitution.) hand, may the other On we take judicial notice unemployment agricul- among exists tural labor. “agriculturаl The term labor” variously has been
ununif ormly It defined. phrase more is a restrictive .than agricultural pursuits. (In Roby, Wyo. 439, re 54 93 Pac. (2d) 940.) Exemption strictly taxation is to con against strued exemption. (Bistline Bassett, v. 47 66, Ida. 696, at 71, 323; 272 Pac. L. 62 A. R. Andrews v. Co., North 117, Side Canal 123, (2d) 52 Ida. at 12 Pac. 363; Lewiston Gilmore, Orchards Irr. v. Dist. 53 Ida. (2d) at 720.) 23 Pac. applied This rule this form of (Big excise tax. Wood Canal Co. v. Unem ployment Compensation Division, supra.) The trend in a cognate (workmen’s compensation) field has been not enlarge еxemptions. (Gloubitz Brothers, 53 Ida. Smeed (2d) 78; Co., 21 Pac. Dorrell v. Norida Land & Timber 53 Ida. (2d) 960; Swedlund, Pac. Mundell v. Ida. 29, 13.) changes (2d) The statutory unemployment amendments compensation statute, *9 582 state, federal have in the same direction.3 been
both recognize and make authorities distinction between agricultural performed per activity, as an labor merely an the commercial or industrial field as formed in adjunct agriculture. (Park Floral Industrial Co. v. Commission, 350, Wayland (2d) 492; 104 91 Pac. Colo. Kleck, (Ariz.) 207; (2d) Pac. v. 112 Cowiche Growers Bates, 624; Duys (Wash.) (2d) v. 117 Pac. H. & Co. v. Tone, 23; (2d) North 125 Conn. 5 Atl. Whittier Board, Heights Ass’n v. National Labor Relations Citrus thought recognized by (2d) 76.) 109 Fed. This Massey, In this court. v. Ida. Cook 220 agricultural pur threshing an commercial was considered suit, legislative background, because of the historical statutes, gleaned interpretation intent and other product grain and that not until a finished farm supra, Brothers, the court threshed. In v. Gloubitz Smeed approval with restrictive definition in followed compensation pur statute that an workmen’s handling suit confined of livestoсk farm was employment’ “The term ‘covered shall include— (f) performed employ Services in the of an individual owner or soil, operating tenant the a farm in of connection with cultivation harvesting production crops raising, feeding or or the managing livestock, poultry, bees or in connection with or marketing processing, packing farm or of such processing, packing marketing where or is an incident tenant; ordinary farming operations provided, however, owner of such individual or nothing in this subsection shall be con- employment’ services from the term ‘covered strued exclude employ any person persons operate performed or who in the occupation occupa- principal or incidental to a farm or farms employment within otherwise be termed covered tions which would the 18-5, meaning 1941 Ida. L.] this Act.” Ch. S. [Sec. per- ‘agricultural “(1) labor’ includes all service The term formed— employ (1) farm, person, in connection with on a in the raising harvesting any cultivating soil, connection with or or in commodity, including raising, agricultural shearing, feeding, stock, bees, poultry, horticultural or management caring for, training, of live- fur-bearing animals and wildlife. operator employ (2) or tenant or other of a of the owner In the operation, management, conserva- farm, with the in connection and its tion, improvement, maintenance of such farm tools or clearing salvaging land of brush and equipment, timber open ranges, delivery and did not include its as a com activity apart or industrial and unconnected mercial Swedlund, agricultural pursuits such. In Mundell pra, Co., and Dorrell v. Norida Land & Timber su supra, clearly scope general held that it was the activity particular thing not the done which *10 determined the classification. Any number on in of activities if carried the home or agricultural
on the farm are in nature, their if whereas conditions, place carried on under different еither as to or performed, extent of work fall into a different others, Among may classification. we mention and call baking cooking attention to or in the home service, purveying domestic where is done it as public partakes it of industrial or commercial charac- ; compare spinning, weaving, sewing, teristics butchering, tailoring, drilling wells, carpentry repair of in the of buildings farm, care, repair, on a upkeep of farm machinery generally. machinery or urgеd broad, general
It that a definition should be major hurricane, other debris left if the of such service performed on a farm. (3) production In harvesting connection maple with the or of sirup maple sugar any commodity or agricultural or defined as an commodity 1141j(g) amended, section of the Title as inor raising harvesting connection with mushrooms, or or in con- hatching poultry, nection with or in connection with the ginning cotton, operation of ditches, canals, or in cоnnection with the or mainten- reservoirs, waterways ance of exclusively or used supplying storing farming purposes. for water for (4) handling, planting, drying, packing, packaging, process- In ing, freezing, grading, delivering storing, storage or or market market, agricultural transportation any or to a carrier for or as commodity; performed horticultural but if such service is ordinary farming operations or, in an incident to and the case of fruits vegetables, preparation as an incident of such fruits shall not vegetables provisions paragraph market. The of this applicable respect performed be deemed to be connection with commercial with to service in in canning freezing or commercial any agricultural commodity connection with or horticulture after delivery consumption. its to a terminal market for distribution or subsection, dairy, stock, As used in this term ‘farm’ includes fur-bearing poultry, fruit, ranches, animal, farms, plantations, truck nurseries, greenhouses ranges, or other similar structures primarily raising used for the or horticultural commodities, orchards.” given (agricultural labor) the term and that niceties of engaged distinction should not be because of con- sequent difficulty employer of the board determ- ining employment to whether the as falls within class dealing the other. In an administrative board kind, however, such almost infinitesimal lines of de- avoided, again recognize marcation cannot be must we that, stated, as hаs heretofore each case must decided peculiar more or less and definitive features therein. involved too numerous to Illustrations readily even mention occur if one work which done in exempt, the home would be domestic and under other circumstances and in a different environment would be; farming. so on with work or connected with eyes they
Courts courts should not shut their to what industry. know of common affairs business and by appellant done work both for himself While agricultural nature, and consigned performed others an was of partook it nature produce, of the of business field, distinguished employment in the industrial legislature exempt which we believe the intended to operation unemployment statutes, compensation *11 justified and the making board in the distinction it was consigned did as produce. produce purchased
The order as to should be reversed. Otherwise affirmed.
Holden, J., concurs. MORGAN, Except particular in in accord I am J. — opinion case. with the Justice in this Chief Givens agree point on him is as to which am unable I vegetables performed upon by appellant on labor received consignment. in I the labor mentioned this believe all consigned case, including appellant, that on “agricultural meaning is the unem- labor” within compensation employ- ployment and is not “covered law tax should ment” reason of the excise which imposed. duty to the attention believe it our to call
I legal juris- profession grave doubt exists as to that аppeals diction of this court entertain cases of this earnestly Board, the Industrial kind from Accident hope has so well said on this sub- what the Justice Chief appeals may ject warning serve as a result will binding only no in decisions which will have force. deciding jurisdictional questions I am favor of While court, urged by present themselves whether parties not, and, that to be not while I believe one, majority rule, fully per- the sensible but I am
suaded the manner which Justice handled Chief preferable ignoring it.
(No. 20, 1942) 6948. March SMYTHE, WALTER Respondent, RICHARD G.W. PHOENIX, Appellant. (123 (2d) 1010)