Vollman v. California Employment Stabilization Commission

DEIRUP, J. pro tem. Plaintiff appealed from a judgment for defendant in this action, which was brought to recover contributions toward unemployment insurance which had been paid under protest.

Appellant is the successor in interest of a partnership which [96]carried on business under the name o£ Valley Catering Company. For convenience he will be regarded as being the owner of that business during the period of time that is involved in this action.

In a number of labor camps, from December, 1943, through March, 1946, appellant furnished meals to Mexican nationals who had been brought into the United States to do farm work pursuant to an executive agreement that had been entered into by representatives of the governments of the United States and Mexico. For a short time he deducted from the wages of employees 3.70 per cent, assuming that he was required to do so by the Unemployment Insurance Act (Stats. 1935, ch. 352, as amended; 3 Deering’s Gen. Laws, Act 8780d). On April 19, 1944, having been advised that he was not subject to the act and .that either he should repay the sums he had deducted or elect to come within its provisions, he filed with the respondent a written election, as provided in section 15 of the act. The effect of the election was to subject the plaintiff to the terms of the act to the same extent as all other employers who were covered by the act for two calendar years and thereafter unless he gave proper notice of withdrawal of his election. Such a notice was never given.

Appellant found it convenient to employ Mexican nationals to wash the dishes, clean the mess halls, prepare vegetables, keep the stock rooms in^order and to do whatever other work was necessary in the maintenance and operation of the kitchens. He did not pay their wages directly to them, but to the camp manager. He did not make any deductions from their wages for unemployment benefits, but he paid to the defendant, under protest, all the sums he was required by the act to pay, amounting to $3,731.21.

Appellant contends that the Mexican nationals whom he employed did not come within the purview of the act, for they were brought into the United States pursuant to an executive agreement which required that they be returned to Mexico within too short a period of time to permit them to qualify for unemployment benefits under the act. One answer to this contention is that under the provisions of section 53 of the act they would have had the same right as any other employee to apply for compensation after they had received $300 in wages. Another answer is that contributions by an employee are payable to the respondent even though the employee might not be eligible for benefits because