CURTIS, J. I dissent. As I understand the majority opinion, it requires an employer to pay contributions and to make deductions from wages of employees in support of the unemployment fund, although such employees’ wages are less than the minimum entitling them to receive the benefits of the California Unemployment Insurance Act upon becoming unemployed. (Stats. 1935, chap. 352, p. 1226, as amended; [428]Deering’s Gen. Laws, 1935 Supp., Act 8780d, p. 2039, as amended.) I do not believe that a reasonable interpretation of this legislation sustains such a conclusion.
The act is an integrated and self-contained aggregation of rules, built one upon the other, all of which rules are phrased in certain terms, which in turn are carefully and artificially defined. Each clause of the statute must be read in the light of all the rest of the statute—most particularly in the light of the definitions.
As the 'problem is here presented, the disputed point is the identification of the “employer” who is liable for payment of contributions to the unemployment fund. In the first place, to be subject to the tax, the employer must employ individuals in the conventional legal sense; that is, the legal relationship of employer and employee must be established. Assuming, as the majority opinion in short holds, that the facts herein do establish such legal status, there still remains the question of whether the Los Angeles Down Town Shopping News is an “employer” within the special meaning of the act. Concededly, the specifically excepted services—such as agricultural labor or domestic work in a household—do not constitute “employment” under the act, and the employer of individuals in occupations which are so expressly without the coverage of the act would not be required to make contributions based on “wages” paid for such “employment.” Upon like reasoning, no more liable as a taxpayer is the employer of individuals who are just as definitely excluded from the benefits of the act not by reason of the character 'of their work but by reason of their mininwm earnings according to the declared operative schedule of the applicable legislation. Thus, at the time involved herein, an employee must have earned in the preceding year not less than $156 in order to qualify for benefits (Stats. 1937, eh. 743, p. 2064; Deering’s Gen. Laws, 1937, vol. 2, Act 8780d, §56, p. 4136)—a sum considerably more than the yearly aggregate of newsboy carriers receiving $2.00 to $2.50 per week and denoting the base pay for services which would be deemed “employment” within the meaning of the act.
The legislative scheme manifestly contemplates that the taxable pay roll should relate to the “employment” of persons entitled to the benefits of the act, and that the respective c tributions of the “employer” and “employee” must be m [429]sured accordingly. This plan has been followed and emphasized in pertinent additions to the act. In 1939 section 9.2 was adopted to provide: “An individual shall be deemed ‘unemployed’ in any week during which he performs no service and with respect to which no wages are payable to him, or in any week of less than full-time work if the wages payable to him with respect to such week are less than his weekly benefit amount.” (Stats. 1939, ch. 674, §2, p. 2146; Deering’s Gen. Laws, 1939, Supp., Act 8780d, § 9.2, p. 1702.) At the same time the Legislature increased the base pay to $300 (Stats. 1939, ch. 674, § 13, p. 2151; Deering’s Gen. Laws, 1939, Supp., Act 8780d, § 57(e), p. 1723) and provided that an “unemployed” person may earn as much as $3.00 a week without affecting his right to benefits. (Stats. 1939, ch. 674, § 12, p. 2150; Deering’s Gen. Laws, 1939, Supp., Act 8780d, § 55, p. 1721.) Thus, the base pay determinative of eligibility to the unemployment benefits is even more clearly defined as the basis for computation of the “taxable pay roll” within the operative force of the act. Accordingly, a conceded employee earning less than $3.00 a week would be deemed “unemployed,” and it necessarily follows that the respective percentage contributions from the “employer” and “employee” would not be required from such minimum compensation.
It is true, as the majority opinion notes, that the act “is a remedial statute and as such must be liberally construed for the purpose of accomplishing its objects”—the relief of unemployment—but it seems to be a clear perversion of legislative intent to assume that wages paid to persons expressly made ineligible to the protection of the act are nevertheless taxable. To so extend the operation of the statute to persons not within its letter appears to be not only improper, but likewise cause for challenge of its constitutionality. It is argued that since the contributions collected on wages go into a common fund for the purpose of paying unemployment insurance benefits, whether or not the person whose earnings are so taxed draws such benefits is of no importance. (Matter of Cassaretakis, 289 N.Y. 119 [44 N.E.2d 391]; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495 [57 S.Ct. 868, 81 L.Ed. 1245, 109 A.L.R. 1327]; Steward Machine Co. v. Davis, 301 U.S. 548 [57 S.Ct. 883, 81 L.Ed. 1279, 109 A.L.R. 1293].) In this regard it is suggested that “we all [430]pay insurance premiums of one kind or another, but we do not all collect on our policies.” That is true enough, but how long would we continue ot pay premiums if we knew we, or our beneficiaries, would not be eligible to receive any benefits if the contingency insured against occurred? Upon like considerations it is reasonable to assume that the act contemplates as “employees” only those persons eligible to draw benefits if the contingency—unemployment—occurs, and only their- “wages” should constitute the pay roll basis for the taxable contributions.
The above noted cases are not persuasive of any other conclusion. First, in considering the Cassaretakis decision, it is pertinent to note the distinguishable feature of the New York Unemployment Insurance Law which puts the entire burden for contributions upon the employer. The question'there presented was whether the New York statute was applicable to marine employments. In holding that employees in such work were within the protection of said law and entitled “to receive the benefits upon becoming unemployed,” the New York Court of Appeals at page 126 made the following observation cited by the commission herein: “This tax is an excise based upon the exercise of the privilege of employing individuals. (citing the Carmichael and Steward cases, supra.) The obligations of the employer under this law are not to his employees but to the state. Likewise, claimants of benefits assert their rights against the state and not against the employer. The employer’s duty to pay contributions and the employee’s right to receive benefits are independent of each other. The employer must continue to pay the tax although none of his employees ever becomes entitled to benefits through lack of employment; the employee has a right to receive benefits upon becoming unemployed although his employer has failed to contribute.” (Italics added.) Significant in this language is the recognition that the employee within the scope of the act is the one entitled to its benefit features, and that the employer’s payment of a nondiscriminatory excise tax based upon his exercise of the privilege of employing an individual to perform services for him is independent of his employee’s right to the statutory coverage upon becoming unemployed. The decision thus stands for the desirability of construing a state unemployment insurance law to protect as many employments as are fairly within its scope and in[431]crease the number of potentially eligible recipients of benefits, but it does not touch upon the problem here presented where the legislative plan provides for contributions to be exacted from both the employer and employee upon the basis of a pay roll for services not excepted from the terms of the California act.
The Carmichael case, supra, sustained the constitutionality of the Alabama Unemployment Compensation Act, which was attacked on the following grounds: (1) That it infringed the due process and equal protection clauses of the Fourteenth Amendment; (2) That the state was coerced by the federal government in adopting the Social Security Act; and (3) That it involved an unconstitutional surrender of power by the state to the federal government. Like the California statute, the Alabama act provides for contributions by employers and employees, and the pay-roll levy creating a fund for use for relief of unemployment was designated an “excise tax”—an exaction on the right, on the one hand, to employ, and, on the other hand, to be employed. (Carmichael v. Southern Coal & Coke Co., supra, 301 U.S. 508; see, also, Gillum v. Johnson, 7 Cal.2d 744, 763 [62 P.2d 1037, 63 P.2d 810, 108 A.L.R. 595].) But in so upholding the Alabama Act insofar as the questions raised under the federal Constitution were concerned, the Carmichael case did not consider the propriety of including in the taxable pay roll wages of persons excluded from the benefits of the state unemployment insurance law. Rather that case assumes throughout that the base pay refers to “employment” within the coverage of the state law and that the burden on the employee is offset by his eligibility to the statutory benefits on becoming unemployed.
The Steward case, supra, upheld the validity of the tax imposed by the Social Security Act upon employers as within the power conferred upon Congress to levy an “excise” on the right to have individuals in employment, but necessarily under the scheme of the federal legislation involved the employee’s relation to the taxable pay roll insofar as coverage was concerned was not considered. The distipguishable element of the California act is its manifest contemplation that only the wages of persons “in employment” as therein prescribed should be included in the taxable pay roll determina[432]tive of the contributions of both the employer and the employee.
As a further point to be noted here, the majority opinion states: “The record shows that a few of the boys working for Shopping News had employment other than that as a carrier and earned total wages exceeding the minimum amount which determines eligibility.” Such observation as to the total earnings of a few of the newsboy carriers does not fortify the propriety of the judgment herein holding that the wages of all the newsboy carriers, the great majority of whom were receiving total wages less than “the minimum amount which determines eligibility,” are to be included in the taxable pay roll. In my opinion, the ineligibility of a conceded employee to enjoy the protection of the act because not “in employment” within its meaning—whether by reason of the character of his work or the below minimum earnings—is a controlling factor in establishing the exclusion of his wages from the base pay roll determinative of the respective and related contributions of the employer and the employee.
Upon the premise of this interpretation of the Legislature’s plan of unemployment relief as embodied in the act—that it does not apply where the employee upon becoming unemployed is without its benefit coverage—the judgment herein should be reversed.
Shenk, J., concurred.
Appellant’s petition for a rehearing was denied August 4, 1944. Shenk, J., and Curtis, J., voted for a rehearing.