Summary
In Acme Engineering Co. v. Jones, 150 Ohio St. 423, 83 N.E.2d 202, 203, The Supreme Court of Ohio indulged in a strict construction of a provision similar to our Title 23:1541(4) and in effect that the remedy of an employer to recover a contribution erroneously paid lay exclusively thereunder.
Summary of this case from Higgins, Inc. v. WalkerOpinion
No. 31351
Decided December 15, 1948.
Unemployment compensation — Contribution rate of employer — Section 1345-4, General Code — "Binding" means final and conclusive — Refund of excess contributions — Application for review and redetermination to be filed within 60 days — Four-year limitation for adjustment or refund, inapplicable — Section 1345-2 (e), General Code — Statutory construction — Special provision constitutes exception to general provision, when.
1. A special statutory provision which applies to a specific subject matter constitutes an exception to a general statutory provision covering other subjects as well as the specific subject matter which might otherwise be included under the general provision. ( State, ex rel. Steller et al., Trustees, v. Zangerle, Aud., 100 Ohio St. 414, and paragraph one of the syllabus in State, ex rel. Elliott Co., v. Connar, Supt., 123 Ohio St. 310, approved and followed.)
2. The word, "binding," as used in Section 1345-4, General Code, means final and conclusive.
3. An employer whose rate of contribution has been fixed by the Bureau of Unemployment Compensation and who has paid contributions based on such rate cannot have that rate redetermined and a refund of contributions in excess of those based on a new rate, unless such employer files with the administrator of the Bureau of Unemployment Compensation an application for review and redetermination of the rate within 60 days after the mailing of the notice thereof to such employer's last known address, or, in the absence of the mailing of such notice, within 60 days after the delivery of such notice.
APPEAL from the Court of Appeals for Franklin county.
Prior to some time in 1941, The Buckeye Aluminum Company, a corporation, hereinafter referred to as Buckeye, was engaged in the manufacture and sale of aluminum kitchenware in Wooster, Ohio. Due to wartime restrictions by the federal government it became impossible to obtain aluminum for the manufacture of aluminum ware, and in 1941 Buckeye commenced liquidation proceedings.
In October 1942, The Acme Engineering Company, an Ohio corporation, appellant herein, hereinafter designated as Acme, purchased from Buckeye, under an installment sale contract, all its assets both real and personal, including goodwill and the right to the use of the name, Buckeye. The only assets excluded from such purchase were the moneys, deposits or credits in banks, accounts and bills receivable and United States and other bonds belonging to Buckeye. Thereupon Acme, in the plant and with the assets which it had purchased, commenced preparations to manufacture and ultimately did manufacture miscellaneous items which were used in World War II.
During all the time of its business operations and until it ceased doing business on October 31, 1944, Acme employed a sufficient number of employees to be an employer subject to the Ohio Unemployment Compensation Act and so was liable for pay-roll contributions to the Bureau of Unemployment Compensation, hereinafter designated the bureau. The bureau sent a letter to Acme advising it to send in a form called UCO-1, which is a report to determine liability. Acme returned the report to the bureau under date of December 18, 1942, which report was signed by J.W. Moorhead and which contained, inter alia, these questions and answers:
3a. "Give date on which operation began in Ohio. [A.] October 6, 1942.
"b. If business was acquired since January 1, 1936, give name and present address of former owner. [A.] The Buckeye Aluminum Company, liquidated in 1941.
* * * * *
"Remarks: This plant is just being organized and has not started production yet."
Under date of January 1943, Acme was advised by the bureau that its rate of contribution for 1942 was two and seven-tenths per cent. Also in January 1943, Acme was advised by the bureau that its rate for 1943 was two and seven-tenths per cent, and in January 1944, Acme was advised by the bureau that its rate for 1944 was two and seven-tenths per cent.
It was agreed that Acme paid into the bureau the correct amounts of money as determined by the rates so established, and it is conceded that Acme raised no objection to these rates nor asked for any refund until November 1944.
Buckeye, from whom Acme purchased its property and assets, was an employer subject to the Ohio Unemployment Compensation Act, and had a rate of seven-tenths per cent which had previously been established for it by the bureau, which rate was effective for it for the calendar year 1942.
It was stipulated between the parties hereto that if Acme, when it purchased Buckeye's property and assets, became the successor in interest to Buckeye, within the meaning of the act, Acme's proper rate of contribution to the bureau should have been seven-tenths per cent rather than the two and seven-tenths per cent, according to which it paid. If Acme had paid at the rate of seven-tenths per cent, it would have paid to the bureau $457.31 less than it paid in 1942, $4,168.45 less than it paid in 1943 and $3,714.58 less than it paid in 1944.
In November 1944, Acme filed claims with the bureau for refund of the alleged overpayments in the amounts above specified. The claims were filed pursuant to the provisions of Section 1345-2 (e), General Code, a section of the Ohio Unemployment Compensation Act, and the appellee herein, administrator of the bureau, disallowed the same. Acme then instituted further proceedings with the administrator, which were heard before a deputy administrator, for a review and redetermination of the order of disallowance pursuant to the provisions of Section 1345-4 (c) (4) (F), General Code. The deputy administrator likewise ordered a disallowance.
An appeal, pursuant to Section 1345-4 (c) (4) (F), General Code, was taken by Acme to the Court of Common Pleas of Franklin county, which court affirmed the decision of the deputy administrator.
An appeal was taken by Acme to the Court of Appeals which affirmed the judgment of the Common Pleas Court.
The case is before this court on the allowance of a motion to certify the record.
Mr. Thomas X. Dunigan, for appellant.
Mr. Hugh S. Jenkins, attorney general, Mr. John M. Woy and Mr. Roland B. Lee, for appellee.
Two questions are presented in this case. The first is, was Acme, within the meaning of the statute, a "successor in interest" to Buckeye, and the second is, did Acme make its claims for refund of alleged excess contributions within the time limited by law.
Under Section 1345-4 (c) (1), General Code, it is provided in part:
"If an employer shall transfer his business or shall otherwise reorganize such business, the successor in interest is hereby required to assume the resources and liabilities of such employer's account, and to continue the payment of all contributions * * *."
It is conceded in this case that, if Acme was a "successor in interest" to Buckeye, its rate of contribution to the bureau should have been the same as Buckeye's, to wit, seven-tenths per cent. The administrator contends that Acme was not a "successor in interest," and the deputy administrator and the Court of Common Pleas so held. The Court of Appeals held that Acme was a "successor in interest," and, in this court, the administrator has assigned such holding as error. It is contended on the one hand by the administrator that Buckeye had ceased business before Acme was incorporated or functioning in business. The administrator contends that to be a "successor in interest" the successor must have had transferred to it and must have taken over a going business; that Buckeye had ceased to manufacture aluminum products in September 1941, owing to the shortage of aluminum, and on October 22, 1941, its stockholders authorized a complete liquidation and distribution of its property; and that it marketed the last of its products about January 1942, so that, at the time Acme purchased Buckeye's property and assets, it was doing no business except the mere matter of liquidating. The administrator contends further that late in 1942 Acme started up in the old Buckeye property an entirely new type of business, to wit, the manufacture of war materials. On the other hand, it is contended by Acme that since it purchased the plants, assets, goodwill and right to use the name, Buckeye, Acme was the "successor in interest" of Buckeye. Acme contends further that neither Buckeye nor itself could manufacture aluminum ware because the government conscripted all aluminum, and that, since Buckeye would still have been the same company if it had turned to the manufacture of war materials, Acme was in fact and in law a "successor in interest."
In the view we take of this case, we are not called upon to decide the question whether Acme was a "successor in interest" to Buckeye. Acme's claims for refund of its excess contributions were under authority of Section 1345-2 (e) which reads as follows:
"If not later than four years after the date on which any contribution or interest thereon is paid, an employer who has paid such contribution or interest shall make application for an adjustment thereof in connection with subsequent contribution payments, or for a refund thereof because such adjustment cannot be made, and the administrator shall determine that such contribution or interest or any portion thereof was erroneously collected, the administrator shall allow such employer to make an adjustment thereof, without interest, in connection with subsequent contribution payments by him, or if such adjustment cannot be made the administrator shall refund said amount, without interest, from the clearing account of the unemployment fund * * *."
It is conceded that Acme's applications for refund were made within four years after the rights predicating such applications accrued, and that, if the above statute were the only one involved and if it were determined that Acme was a "successor in interest" to Buckeye, Acme would be entitled to have its excess payments refunded to it, it being impossible to make any adjustment thereof in connection with subsequent contributions because of the fact that Acme ceased business late in 1944. However, to bar Acme's claims for refunds, the administrator is relying upon another section of the Unemployment Compensation Act.
Section 1345-4, General Code, provides, inter alia:
"The administrator shall determine as of each computation date the contribution rate of each employer for the next succeeding contribution period. Once a rate of contribution has been established under the provisions of this section for a contribution period * * *, such rate shall remain effective throughout such contribution period. The rate of contribution shall be determined in accordance with the following requirements:
* * * * *
"As soon as practicable after October 1st but not later than January 31st of the ensuing calendar year the administrator shall notify each employer of his contribution rate as determined for the next ensuing contribution period pursuant to this section. * * *
"Such rate shall become binding upon the employer unless, within 60 days after the mailing of notice thereof to his last known address, or in the absence of mailing of such notice, within 60 days after the delivery of such notice the employer files an application for review and redetermination, setting forth his reasons therefor. The administrator shall promptly examine the application for review and redetermination, and if a review is granted, the employer shall be promptly notified thereof and shall be granted an opportunity for fair hearing."
The section proceeds with a provision that if the administrator denies the application of the employer he may appeal to the Common Pleas Court of Franklin county, and that an appeal may be taken from the judgment of the Common Pleas Court.
In this case, although Acme was notified in January 1943 that its rate for the time it did business in 1942 was two and seven-tenths per cent, and was again notified in January 1943 that its rate for 1943 was two and seven-tenths per cent, and was notified in January 1944 that its rate for 1944 was two and seven-tenths per cent, it paid its contributions for all three periods strictly according to the rates fixed by the bureau and did not file an application for review and redetermination within 60 days of receiving notice of such rates. Since the statute provides that the rate shall be binding upon the employer if an application for a review and redetermination is not filed within 60 days of the reception of notice of the rate by the employer, it is contended by the administrator that the rate became final, and that the application of Acme under Section 1345-2 (e), General Code, was of no avail.
We are confronted with two statutes, one general and the other specific. Section 1345-2 (e) gives a four-year limitation for an application for an adjustment or refund of any contribution or any portion thereof which was erroneously collected. This would include any overpayments because the amount had been incorrectly figured according to the rate established, any overpayments because of a mistake in figuring the number of employees for whom payments had to be made, or any overpayments from any general cause. Acme contends that it was within time in its applications, for the reason that although it paid strictly according to the rate fixed for it, nevertheless the greater portion of its contributions were erroneously collected because it should rightly have had a much lower rate. Yet the rate becomes binding unless the application for review and redetermination is made within 60 days after the mailing or receipt of the notice thereof.
It is a general rule of law in statutory construction that when there are two statutory provisions covering the same subject matter, one of which is general and the other special, the special statutory provision for a specific case is to be construed as an exception to general provisions which might otherwise include the particular case.
This court has followed that general rule which is not only buttressed by authority but is sound in reason and logic. In State, ex rel. Steller, v. Zangerle, Aud., 100 Ohio St. 414, 126 N.E. 413, it is said:
"A special statute covering a particular subject matter must be read as an exception to a statute covering the same and other subjects in general terms."
In State, ex rel. Elliott Co., v. Connar, Supt., 123 Ohio St. 310, 175 N.E. 200, the first paragraph of the syllabus reads:
"Special statutory provisions for particular cases operate as exceptions to general provisions which might otherwise include the particular cases and such cases are governed by the special provisions."
Therefore, a statutory provision, which would make a rate of contribution binding upon an employer unless within 60 days after the employer receives notice of the rate he files an application for review and redetermination, would govern over a statutory provision fixing the time limitation at four years for an application for a refund of a contribution or a portion thereof which was erroneously collected. The 60-day provision applying specifically to the rate must be considered as an exception to the four-year provision which applies generally to erroneously collected contributions.
Acme contends, however, that the word, "binding," in the clause of Section 1345-4, General Code, which reads, "such rate shall become binding upon the employer unless, within 60 days," does not mean final or conclusive. It is earnestly contended and ingeniously argued on behalf of Acme that the 60-day provision means that the employer who had paid in accordance with it must continue to so pay during the period for which the rate was set unless he makes application within 60 days for a review and redetermination, but that that is as far as he is bound, and he may within the four-year provision apply for the excess paid by him as a result of an incorrect rate for the correction of which he had not applied within the 60 days.
We are of the opinion that this construction of the word, "binding," is too strained, and that the real meaning of the word in the legislative mind denotes finality and conclusiveness. It seems too plain to be defined otherwise.
In Meunier's case, 319 Mass. 421, at page 423, 66 N.E.2d 198, it is said:
"The controversy in the present case hinges on the meaning to be given to the word 'binding.' That word has frequently been employed in our decisions to denote that certain evidence is final and conclusive against a party * * *.
"The word 'bind' or 'binding' appearing in our statutes has been construed to mean conclusive."
Holding as we do that, since Acme did not avail itself of its right to file applications to have its rate reviewed and redetermined under Section 1345-4 (c) (4) (F) within 60 days after it received notice of the rates it could not avail itself of Section 1345-2 (e), it would make no difference whether it was a successor in interest to Buckeye.
It might be said that it is an unfortunate hardship that one who erroneously paid large sums in excess of what its contribution should have been cannot have refunds made to it, but that same thing can be said in connection with any claim or appeal which has been barred because not brought within the time provided by law. It may seem hard that a title by adverse possession can ripen against an owner or that a demonstrably erroneous judgment cannot be reversed because an appeal was not filed within the statutory period, but it is the policy of the law to bring controversial matters to a time of repose and if one has not availed himself of his legal remedies within the time fixed by law he must bear his misfortune. The fact the general statutory provision provides a four-year limitation and the special provision one of only 60 days may seem to a defeated party to be unwise, but, as we have so frequently said, the wisdom or desirability of legislation is a question for the legislative and not the judicial branch of government. Our function is limited to an interpretation of the meaning of statutory provisions and whether they are in accord with the federal and state Constitutions.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and SOHNGEN, JJ., concur.
TURNER, J., not participating.