Louis Eckert Brewing Co. v. Unemployment Reserves Commission

SCOTT, J.

pro

tem.

Defendants appeal from a declaratory judgment holding that plaintiff corporation is not an employer within the meaning of the Unemployment Insurance Act.

Plaintiff corporation brought suit alleging that it is engaged in the manufacture of beer; that it sells it through twenty-six persons, including the six individual plaintiffs, who in turn sell it to ultimate customers; that these persons are independent contractors and not employees; that defendant commission is about to tax it under the act (Stats. 1935, p. 1226; Stats. 1939, p. 2058, Deering’s General Laws, 1939 Supp., Act 8780 d) on the theory that such persons are employees, and asking that the court determine the legal rights and duties of the respective parties and enjoin defendant commission from collecting any such tax. Judgment was rendered declaring that the persons were not and are not employees and that plaintiff corporation is not liable for such taxes.

On appeal defendants assert (1) that section 45.10 of the act prohibited the trial court’s granting a declaratory relief judgment, and (2) that plaintiffs had not exhausted their administrative remedies under the act and were not entitled to judicial relief until they had done so. The determination of the appeal depends largely upon the construction to be placed on section 45.10 of the act, enacted in 1939, and on the commission’s rule 90.6.

Section 45.10 of the act, which became effective on September 19, 1939, approximately three months and twenty days before entry of judgment in this case, provides as follows:

“No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding, in any court against this State or against any officer thereof to prevent or enjoin under this,, act the collection of any contribution sought to be collected; but after payment of any such contribution under protest, duly verified and setting forth the grounds of objection to the legality of such contribution, the employer paying such contribution may

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bring an action against the Unemployment Reserves Commission in any court of competent jurisdiction in the county seat of the county wherein the employer maintains his principal place of business for the recovery of contributions so paid under protest. ’ ’