Haines v. Department of Employment

VAN DYKE, P. J.

Appellants petitioned the superior court for a writ of mandate directed against the department, compelling it to show cause why certain so-called arbitrary assessments it had made for unemployment insurance contributions claimed by it to be due and payable from appellants as employers pursuant to the Unemployment Insurance Act should not be canceled. Petitioners allege that, pursuant to the act, the department had on May 30, 1950, levied an arbitrary assessment against them for the reason “that no returns for contributions were filed by them”; that the assessment was on account of contributions alleged to have become due and owing for the period commencing June 1, 1942, through September 30, 1945; that during that period the section of the act, to wit, section 45.5, which authorized the arbitrary assessment, was as that section had been enacted in 1939 and amended in 1943; that the department had no jurisdiction in May of 1950 to make said arbitrary assessment on account of contribution liability arising during the period January 1, 1942, to September 30, 1945, for the reason that “the law in force at the time the alleged contributions became due was repealed in 1945 prior to the date of said assessment,” and the repealing act contained no saving clause. Section 45.5 of the act, which provides for assessments where an employer fails to file a return, was first added to the act by Statutes of 1939, chapter 630. The section was amended by Statutes of 1943, chapter 1114, and was repealed by section 1 of Statutes of 1945, chapter 561. Its provisions, however, were substantially reenacted by section 2 of said chapter 561. Petitioners’ claim is that, notwithstanding a substantial concurrent reenactment of the provisions authorizing assessments where an employer has made no return, the effect of the repealing clause is to divest the board of jurisdiction to make such assessments on account of contributions falling due before the repealing clause was enacted. This contention cannot be sustained.

The Unemployment Insurance Act is one devoted to the relief of unemployment. Speaking broadly, the subject legislation establishes a fund for such relief; places a liability on both employers and employees to pay contributions into that fund and directs the use of the fund in relieving against the

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incidence of unemployment. The act contains various provisions, including the power of arbitrary assessment where no return is made, for compelling the payment of contributions into the fund. With respect to the primary liability of the petitioners, their petition is silent and contains no allegations that during the assessment period they were not employers obligated to withhold employee contributions, to add their own contributions, and pay the whole into the fund. Essentially, therefore, their contention is that by repealing one statutory method of compelling them to discharge their obligations to the fund the state has forgiven the debt. Such a result could hardly flow from a statute which repealed the provisions as to one only of the various methods which the statute contains whereby the obligation to pay into the fund could be enforced.