*1 Harry P. Chairman, Edward C. Andrew J. Crow Murphy, Sr., Commis- Drisler, Members Limpp. Missouri, Appellants, v. H. Rufus sion of (2d) 420. February Two, 1, 1941.
Division Summers, Waltner, Counsel, D. Harry Jr., G. Edward Chief Counsel, appellants. Assistant
Culver, Phillip, respondent. & Smith for Kaufmamn adopted appellants is following statement of WESTHUES, C. The by the court: Unemployment brought by the members
"This action was Unemployment (h) of the under Section Compensation Commission against Limpp H. 1939, p. 925), (Laws Refus collecting County purpose of Gentry the Circuit Court Compensa- contributiоns counts, August filed on petition, Law. six tion December, of such 1939 term and the cause was returnable to the defendant filed *3 the first of the return term Court. On costs, December require give security for and on plaintiffs motion to Thereafter, December 12, 1939, the motion. on Court such sustained liability under the 1939, answer, denying his 12, defendant filed his Compensation Law un- alleging Unemployment act and that the Stipulation Agreed constitutional A and Statement applied him. taking submittеd, of Facts was then filed and the cause was the Court 1940, February 1, agreed it under the advisement on the facts. On of in favor the judgment against plaintiffs Court the rendered and judg- timely of defendant. After trial and in arrest motions new duly overruled, appeal allowed to this ment filed and February 1, Court on 1940. ‘‘ oil business engaging The defendant is an in the retail individual King City, Missouri, petition all in the and has at times mentioned year 1936 persons During one and the employ. had in his the employment defendant had in on some and individuals portion day employment of in of twenty each different weeks. This experience during plaintiffs’ 1936 contention the of constitutes basis Unemploy- that the defendant liable to the mаke contributions under during ment him respect wages payable Law with year 1937, the calendar quarters the four 1938 and the first calendar of quarter upon of the computed 1939. The are contributions sued for basis of a percentage wages of are in payable the defendant and amounts, the periods, and became due follows: Period. Date. Due Amount.
Year, 1937 1938 .....................$119.25.........January Quarter, 40.91.........April 1st 1938............... .1938 Quarter, 41.04.........July 2nd 1938 1938............... Quarter, 31, 1938 3rd 1938............... 45.63.........October Quarter, 26.73.........January 4th 1939 1938............... Quarter, 26.73.........April 1st 1939 1939...............
252 еmployer is an the defendant within plaintiffs contend that
“The (5) meaning (1) (h) 3 and 3 of (h) of Sections therefore, to make contributions in and liable Compensation Law Unemployment Compensation Fund. with such law to the accordance employer is an as claimed not admit that he Defendant does may being ap- and if law be construed as plaintiffs, claims that him, following provisions plicable it is violative of the of the Con- 4; 15; : Article Section Article Section Article Section stitution 30; 10; the 14th Amendment of the Constitution of the United States.” respondent
In stipulation referred to it was admitted that during employ eight in his or more individuals day twenty weeks; portion on of a in eaсh of some different employees any employ did not have in his or more January following Appellants since contend Unemployment Compensation subjected of re sections spondent (g), (h) (1), to the of act. Section 3 (h) (5), 1937, pages part Laws 575 and 576. These read sections as follows:
“(g) ‘Employing any organiza- unit’ type means individual or tion, subsequent . . . which has or had in its performing one or more individuals within this services for it state.” ‘ ’ “(h) Employer means: “ (1) Any employing day, portion unit which for some of a but not necessarily simultaneously, twenty weeks, in each different whether or not such consecutive,, or weeks are were within either current or preceding year, emplоyment, eight calendar has or had *4 irrespective individuals of whether the same individuals are or employed day.” in each such “ Any (5) employing which, having employer unit an become under paragraph (1), (2), (3) (4), not, has 7, under Seсtion ceased to be employer an subject to this Act.” 1937, page Laws (h) (5), to referred in Section 3
insofar as ease, involved in this as reads follows: “ (b) Except provided as (c) section, otherwise in subsection of this an employing shall employer subject unit cease to to this Act be day January as of the first any year, of of calendar if it with the files commission, prior day January year, to the fifth of of such a written application for coverage, of termination and the commission finds that days, there were no day being thirteen different each in a different week within preceding year, employ- the calendar within which such ing employed eight unit subject оr more individuals in employment to this Act.” law, by
The above Legislature enacted the of contained an emergency clause and Respondent became effective on June any persons eight or not he did that since contends for; tax sued subject to the not January 1, 1937, ishe time, after and retrospective commission interpreted by the as that the law Constitution, because the Missouri of of Section II violative enactment рrior the as existed on a status for was based tax sued the forth, make the above set in their statement Appellants, law. during 1936 con- experience employment “This following assertion: is liable defendant that the plaintiff’s contention basis of stitutes the with Employment the under to make contributions Ap- year 1937, during the etc.” him wages payable respect to Undertaking & Murphy al. v. Hurlbut of et pellants cite the 142 S. decided 346 Mo. Embalming Company, subject authority defendant was court, of this Division One required pay the tax. the law and as will in that us not mentioned case now question before “It opinion. quoted from the following statement the be noted act, during year was, under concеded defendant accruing in 1937.” The defendant paid it all contributions and that 1938, that it would January 20, the commission that ease notified during year 1938. The court held that only employees have seven of Section (b) subdivision complied had not with the defendant act unit is under the provides employing that an which supra, which any shall, 5th of prior January if it may exempt from act be coverage, year, application for a termination make written days, no thirteen each commission finds that there were different preceding year, within being in a different week within the calendar employing employed eight individuals in which such unit or more employment subject to the act. was undеr the act commented, court further “Defendant
This required employees it time.” because or more ruled, correctly so, that in that case So the court the defendant escape could not tax for 1938 under the Appellants of Car- (b) subdivision of Section 7. also cite case L. Co., michael v. Southern Coal & 109 A. R. Coke U. S. Unemployment Compensation Law, 1327. In that case Alabama act, point similar to the Missouri was held constitutional. The present Respondent consideration was not in that case. in this case except does not contend that Missouri in- law is unconstitutional attempts bring employing sofar as the commission within its terms time, many units who at no аfter had as *5 employees. law, interpreted It does seem to us that the as commission, attempts subject employing insofar as it a tax to units to a existing prior act, retrospective on status to the enactment of the in character and therefore unconstitutional. Supreme
The Unemployment Compensa- North Court of Carolina in tion Co., Commission v. Wachovia Bank & 215 2 E. C. Trust N.
254 a consideration somewhat similar situa under 592, l. c. liad
(2d) Unemрloyment Compensation Law became In that case tion. attempted 1936. commission collect The to on December effective considering question after year court,, 1936. The the tax attempts require “Insоfar the act length, tersely stated: respect employment’ year ‘in for the of contributions payment in and is direct conflict with the 1936 it retroactive ’’ Constitution and is void. Our constitu I, retrospective laws is even broader than inhibition as tional case, In Carolina, however, referred to. above of North year eight a tax for subject to because it had was defendant precise question so us was not employees, more before now or principle, however, strong similarity. In a in that case. there is present brief, reply in a refers us to the of Shelton Appellants, Hotel 104 Pac. 478. The Company (Wash.), question v. Bates there point was similar to the decided Division One of this court decided Undertaking Embalming & Murphy Company, supra. in v. Hurlbut admittedly company in 1938. The hotel was under the act desired It coverage year for the 1940. It to terminate is evident that the case point question is nоt in on the now under consideration. escape is no from conclusion that respondent
There was year 1937 because in taxed for the he had or year Analogous employees in the situation be a would 1937, taxing in law enacted individual in 1936 because he had an income come within the law sufficient to but did not a have clearly taxable income in 1937. a law retrospective Such would be Paper void. al., Graham Co. v. Gehner (2d) 49, et S. W. [See 155; Dirckx, Mo. Smith v. 283 Mo. l. c. 223 S. W. l. c. In quoted the latter case the court approval with Mr. 106.] Story’s retrospective “Every Justice definition of a law as follows: away impairs rights statute which takes or acquired vested existing laws, or оbligation, imposes creates a duty, new a new at or a disability, respect new in taches to transactions or considerations already past, retrospective.” must present law, be deemed en attemрts impose a acted 1937, tax year employed eight because he people or in the creating obligation thus a imposing past new a new a duty on transaction or condition which rule, therefore, existed in 1936. We question that insofar as attempts units, the act employing to tax who, after employed eight at no time or more em ployees, on the basis that employed more were in previous years, is retrospective and void. The trial court judgment entered for the costs incurred
against appellants. assigned This action appellants error and contend that is not State liable for the in a costs case o£ this J., charaсter. In 59 p. 332, C. general sec. we read: “It is a *6 are not re- statute, that costs rule, apart from established and well brought she courts, has suit whether state, a in her own from coverable she defendant; or-whether been sued properly plaintiff or has provision, statutory Therefore, absent a defeated.” successful Respondent against the State. erroneously assessed costs n Ann., p. 1476, 1929, Mo. Stat. 1255, Revised Statutes cites Section nature. gоvern an action of this not section, it, does as we read but that on contracts to actions expressly are confined Its bonds, State, such as etc. in favor judgment of the circuit court judgment part of the and that affirmеd,
the merits Bohling, against Cooley reversed. State is assessing the costs CC., concur. C., is foregoing opinion
PER CURIAM: The Westiíues, judges All the concur. adopted'as opinion,of the court. Ely guardian, Sanders, Sanders, A. natural v.
Richard Lee formerly others), Directors of and Trustees (six A. E. Jones et al. Ap Corporation, the Commercial Shelbina, Bank p ellants. Two, February 1, 1941. Division