6 N.W.2d 687 | Wis. | 1942
Action brought by Cedarburg Fox Farms, Inc., against the state Industrial Commission to set aside its findings and decision in denying a petition filed by plaintiff for the refund of $3,523.12 paid for 1934 to 1939, inclusive, as unemployment compensation contributions under ch. 108, Stats. Plaintiff alleged in its complaint that the commission acted without and in excess of its powers in holding that plaintiff's employees on its fox farm were not "farm laborers" under the term as used in sec.
". . . except that for the purposes of this chapter an `employment' shall not include: 1 Employment as a farm laborer; . . ."
At the times in question plaintiff was engaged in extensive operations in the breeding and raising of silver foxes and the sale of their pelts. For conducting its operations, it owned and used three hundred sixty-four acres of land, consisting three former farms, with a residence and the usual farm buildings on each farm. In addition to some farm machinery, there are three trucks, ten horses used for draft purposes, and forty sheep which graze and keep the grass under control in the spaces between the fox pens. Half of the land is used directly in the raising of the foxes. The balance is used for raising feed and grazing the draft horses and also the horses which are killed for fox feed. There is a slaughterhouse fully equipped with machinery for handling horses killed for feed, for drawing off the hides, and for chopping and grinding the meat and bone; and also a two-thousand-pound capacity feed mixer, and a five-thousand-pound capacity refrigerator for storing the fox feed, which consists horse meat, cereals, vegetables, and milk. A very small portion of the feed is raised on the farm. Fifty-four thousand eight hundred ninety-six dollars were expended by plaintiff for feed in 1939. In 1934 there were about one thousand pair of foxes on the farm, and since then the number has increased to nineteen hundred pair; and seven thousand to eight thousand pups are raised each year. The foxes are kept by pairs in separate pens inclosed by a wire fence, and all are the thirty-fourth generation bred and kept in captivity since 1905. Plaintiff has usually between ten and twenty employees engaged in preparing the feed and feeding *607 and caring for the foxes, and doing other work around the place. They are rotated and shifted from one type of work to another, and may be called upon to do general farm work, and also to tend to the foxes. Their wages are somewhat higher than are paid for the ordinary farm work by farmers in the vicinity; and their employment is somewhat seasonal. When the foxes are to be pelted they are transported by trucks to a fox range in upper Michigan and allowed to run free in large inclosures. The ranges are owned by a different corporation and the proportionate cost is charged to plaintiff. The foxes are then pelted and the furs sold by an auction agency. Plaintiff's pelt sales for 1939, as reported by it in 1940 to the federal census bureau, were $200,558; and the total value of its farm was $87,685, of which $47,608 was for buildings and fixtures. The proportion of total value thus attributed to buildings and fixtures, — without including the value of its breeding foxes, — indicates a specialized investment and the use of capital for equipment far in excess of that found in the ordinary farm of like size. About forty-five per cent of the capital stock of the plaintiff corporation is owned by the Herbert Nieman Company. The Nieman group of fox farms, of which the plaintiff's farm is a unit, produces the largest amount of fox pelts in the United States. The bookkeeping records of the plaintiff's operations are kept by another corporation, which handles the work for seven other operating fox farms, and charges the proportionate expense back to plaintiff. In apportioning the cost of labor to the farm's various products, no one part or certain number of its employees is applied exclusively to the foxes.
At the times plaintiff paid the contributions which it seeks to have refunded, there was in effect, in substantially the same form, the provision in sec.
"Farm Laborers Exempted. Only those persons employed on a farm in customary types of farm work or employed and paid directly by a farmer in transporting his raw produce shall be deemed `farm laborers' under section
There does not appear to have been any controversy that resulted in a decision by the commission and a judicial review thereof to determine whether the employment of a laborer in performing services in the operation of a fox farm, as conducted by plaintiff, constituted "employment as a farm laborer" under the meaning of that term as used in sec.
". . . The provisions of this subsection shall not apply to farmers or to farm labor. . . ."
In the Eberlein Case the employers' farm consisted of three hundred acres of land, most of which was devoted to general farming operations. A small portion was devoted to the raising of foxes and another portion to the raising of ginseng. An employee, who performed services in the general farming operations, but also spent some time working on the fox farm and also in the ginseng gardens, was injured while husking corn, and applied for compensation therefor under ch. 102, Stats. The commission held that there could be no separation of the three enterprises conducted on the farm; that the labor performed in the operation of the fox farm and of the ginseng gardens did not constitute "farm labor" within the meaning *609
that term in sec.
"It is pretty clear to us that fox farming, when separately pursued, is not farming within the meaning of the statute, and that one who raises foxes as a separate pursuit is not a farmer. Thus, if one should buy a small tract of land appropriate for the raising of foxes and engage in no other agricultural pursuits, he would have no election to stay out of the Workmen's Compensation Act. When the tools, the amount, and type of labor required, and the hazards of workmen, income, and investment are considered, he must be treated as engaged in an industry. . . . The same conclusion applies to the raising of ginseng if the situation be limited as above. In such a case the analogy to the operation of a hothouse is very close. Such activities are not farming as that term is commonly understood and as the legislature must have understood it when the act was drafted." (Eberlein v. Industrial Comm., supra.)
Those conclusions and the reasons therefor are likewise applicable in the case at bar to the fox-farming enterprise in which plaintiff was engaged, and to the Industrial Commission's determination that the employment of workers in the performing of services in plaintiff's conduct of that enterprise did not constitute "employment as a farm laborer." In this case, as we concluded in Eberlein v. Industrial Comm., supra., an employer conducting fox farming on the scale and in the manner in which plaintiff operated its fox-farming enterprise, with its proportionately large capital investment in specialized machinery and equipment, and labor and feed, as well as breeding *610
stock, can rightly be held to be engaged in an industry, and not in a customary type of farming as that term is ordinarily and commonly understood. In the absence of a definition or other express term to the contrary in sec.
Those rulings and the commission's determination under review herein are in accord with the decision in In re Bridges,
"Under the provisions of the Labor Law (art. 18, sec. 502, chap. 468, L. 1935, as amended by chap. 117, L. 1936) the employer was not entitled to the exemption of the employee as a farm laborer."
The facts that the legislature in enacting ch. 372, Laws of 1939, amended sec.
In support of plaintiff's contentions in respect to the conclusions stated above, it relies largely upon the courts' conclusions in United States v. Turner Turpentine Co. (5th Cir.)
"The company asserts that the amendment of the Social Security Act of August 10, 1939, states the meaning of `agricultural labor' which should here be applied, it being a mere clarification of the original act, citing United States v. TurnerTurpentine Co. 5 Cir.,
Those conclusions are in accord with the statement of the ways and means committee, in reporting the amendment for passage (H. R. No. 728, 76th Cong., 1st Sess., pp. 2, 18), that the committee —
"believes that greater exactness should be given to the exception and that it should be broadened to include as `agricultural labor' certain services not at present exempt, as such services are an integral part of farming activities."
"The last sentence of the subsection [corresponding to par. (e) of
As workers on fur-bearing animal farms were considered to be within the coverage of the federal act because they were not included in the term "agricultural labor," as used in the act prior to the definition thereof created by the amendment effective January 1, 1940, such workers likewise cannot be considered to have been included in the term "farm laborer" (as used in sec.
It follows that the Industrial Commission was warranted in concluding that the employment in question in the case at bar was not that of "farm laborers" as that term was defined for the purposes of ch. 108, Stats., prior to 1940.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment dismissing the complaint.