UNEMPLOYMENT COMP. COMM. v. BARLOW

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No. 34599.

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UNEMPLOYMENT COMPENSATION COMMISSION OF MISSISSIPPI v. BARLOW.

Lyle V. Corey, of Meridian, for appellee, on motion to dismiss appeal.

The Unemployment Compensation Commission of Mississippi has failed to comply with the provisions of Subsection (j), Section 6, Chapter 147 of the Laws of Mississippi of 1938 as amended, in that the appellant has not paid to the appellee the benefits by reason of unemployment awarded to the appellee by the final order of the Circuit Court of Lauderdale County, Mississippi, from which order this appeal is being prosecuted.

We must constantly bear in mind that, prior to the enactment of this amendment (Laws 1940, Chap. 295, Sec. 6 (j)), there was no authority in the Act for the Commission to prosecute any appeal or at any time to take the initiative in any judicial proceeding involving claims for benefits. The only right which the Commission has to prosecute this appeal from the decision of the Circuit Court is the implied right contained in this amendment. It is our opinion that the Legislature, in enacting this amendment, intended to grant to the Commission the right to prosecute such an appeal, not only from the board of Review to the Circuit Court, but also from the Circuit Court to the Supreme Court, but it is also intended, in granting this right that the right and the burden should go hand in hand and that if the Commission sought to exercise such right, it must bear the burden placed on it by the amendment and proceed with the payment of the claim allowed without regard to the appeal. If the contention of the appellant that this amendment has no application to appeals from the Circuit Court to the Supreme Court be sound, then we respectfully submit that the appellant has no authority under the law to prosecute this appeal under any circumstances. We do not urge this proposition, however, as it is our honest opinion that the amendment applies to a case of this kind. We simply urge the proposition that the amendment must be applied as a whole, including the proviso that the Commission cannot take advantage of one portion of the amendment and at the same time deny the applicability of the rest. Harry M. Bryan and Henry Edmonds, both of Jackson, for appellant, on motion to dismiss appeal.

There is nothing whatever in the Unemployment Compensation Law that requires the Commission to pay benefits to a claimant during and pending a perfected appeal to this honorable court from a judgment of the circuit court. There is nothing whatever in the Act that remotely suggests the imposition of a condition precedent upon the authority of the Commission, as an administrative agency of the state, to appeal from such judgments. Counsel for appellee seeks to bring about such a condition precedent by urging the application of a portion of the 1940 amendment of Section 6 of the Act to all cases appealed by the Commission, whether to the circuit court or to this court. Suppose that the Commission should make such payments, irrespective of the authority so to do being found in the Act. Suppose, particularly, that in event it should do so in the case at bar and this court should reverse the circuit court and hold that the claimant was not lawfully entitled to the benefits claimed. What of the authority and responsibility of the Commission? Absent a legislative direction or a grant of discretionary authority, it is submitted that the Commission might be held as acting beyond the limits of its lawful powers.

Section 6(i) of the Law sets out the basis statutory method whereby any party aggrieved may secure judicial review of any decision of the Board of Review. By the addition of Subsection (j) as an amendment, the Legislature cleared all doubt as to the authority of the Commission to appeal from the Board of Review to the circuit court. But, once an appeal is taken from the Board of Review to the circuit court — whether by the Commission, the claimant, or "any party aggrieved" — the following excerpt from Section 6(i) unquestionably applies: "An appeal may be taken from the decision of the circuit court of the county in which the plaintiff resides to the Supreme Court of Mississippi, in the same manner, but not inconsistent with the provisions of this Act, as is provided in civil cases."

Henry Edmonds and Harry Bryan, for appellant, on merits.

The Legislature could impose upon appellant the duty to promulgate such rules and regulations as might be necessary to give life and effect to the legislative utterance and could grant to appellant the power so to do.

Abbott v. State, 63 So. 667, 106 Miss. 340; U.S. v. Grimaud, 220 U.S. 506, 31 Sup. Ct. 480, 55 L.Ed. 536; Marshall Field Co. v. Clark, 143 U.S. 649, 12 Sup. Ct. 495, 36 L.Ed. 294; Ex Parte Fritz, 86 Miss. 222, 38 So. 722, 109 Am. St. Rep. 700; N.O., M. C.R. Co. v. State, 70 So. 355, 110 Miss. 290; Clark v. State, 152 So. 820, 169 Miss. 369 Bailey Bean v. Wilson, 90 So. 362, 128 Miss. 49; Hawkins v. Hoye et al., 66 So. 741, 108 Miss. 282; State ex rel. Atty. Gen. v. County School Bd. of Quitman County, 181 So. 313, 181 Miss. 818; Town of Ocean Springs v. Green, 27 So. 743, 77 Miss. 472; Hartman v. May et al., 151 So. 737, 168 Miss. 477; 93 A.L.R. 1408; Ormond v. White et al., 37 So. 834, 85 Miss. 276; Cox v. Wallace et al., 56 So. 461, 100 Miss. 525; I.C.R.R. Co. v. Miss. R.R. Com., 143 Miss. 805, 109 So. 868; Brannon's "Rights and Privileges Under the 14th Amendment."

Consequently, the Commission prescribed and adopted its Regulation Number 103, among others, necessarily required to put the administrative machinery in motion for the accomplishment of the legislative will. It is undisputed in the record that the requirements of Paragraphs (a) and (b) of the Regulation 103 were not met by appellee. It is therefore inescapable as a matter of law and fact that he did not meet the eligibility conditions of the statute.

The unemployment trust fund was created by Section 9 of the Unemployment Compensation Law.

Tatum v. Wheeless, 180 Miss. 800, 178 So. 95.

The powers of trustees generally are limited by the terms of the instrument creating the trust. This is true whether the trust is created by statute or comes into being by the voluntary act of an individual.

46 C.J. 1038.

Since this trust fund was established under the authority of the statute and is, therefore, a public fund, designated for a specific purpose, statutory requirements must be tested and met before any part of it can be withdrawn. It is the inescapable duty of potential claimants to comply with the law and with the reasonable rules and regulations adopted and promulgated toward the administration of the law, and there can be no waiver of any requirement of the law by this appellant. This court is thoroughly committed to the principle that boards and commissions are held to the strictest limitations of their powers.

Jefferson County v. Grafton, 74 Miss. 435, 21 So. 244, 36 L.R.A. 798, 60 A.S.R. 516; 4 Am. Eng. Ency. of Law 375; Ammons v. Bank, 103 Miss. 744, 60 So. 770; Sup'rs v. Arrighi, 54 Miss. 558; Monroe County v. Strong, 78 Miss. 565, 29 So. 530; Boutwell v. Bd. of Sup'rs of Jasper County, 128 Miss. 337, 91 So. 12.

It necessarily follows that statements of employees of the Commission of a mere opinion to potential claimants resting simply in parol are insufficient to create a waiver of statutory and valid regulatory provisions as is true in cases affecting other types of public revenues and funds. This court has never departed from the principle that governmental subdivisions, boards and commissions, created by the legislature derive all such powers as they have from and are strictly limited by the terms of the statutes creating them and defining their functions. Such functions must be performed in strict accord with law, and nothing can be inferred. A waiver cannot be interposed as against the public in event some statutory direction has been omitted. It is undoubtedly true that often heavy losses fall upon innnocent persons because of the application of these principles, but their establishment rests upon sound policies.

Brittian v. Robertson, 120 Miss. 684, 83 So. 4; G. M.C. Traction Co. v. Robertson, 129 Miss. 322, 92 So. 221.

Appellee depends here upon a statement by some unidentified and unauthorized person to establish a waiver on the part of the sovereign of the solemn requirements of the law itself. We respectfully say that should the Unemployment Compensation Commission, sitting in solemn session have entered into a written agreement with appellee waiving benefit eligibility conditions, unless there was express statutory authority therefor and so long as the law and the valid regulations of the Commission affirmatively required that those conditions be met, such agreement would be absolutely and utterly void. Much more so, the parol statement of an unidentified and unauthorized employee.

Lyle V. Corey, for appellee, on merits.

It is the contention of the appellee that by presenting himself in person at the Meridian Employment Office and there requesting permission to file a claim, he did everything that it was physically possible for him to do toward complying with Regulation 103, and that those acts constituted the legal equivalent of the actual filing of such claim. The fact that that office omitted performing its duty does not prejudice the appellee's rights.

Meridian Nat. Bank v. Hoyt Bros. Co., 74 Miss. 221, 21 So. 12.

The law has never required a man to do the vain or useless thing. Any attempt on the part of appellee to comply with paragraph (b) of Regulation 103 by calling at that office once each week would have been utterly foolish in view of the reception he received on his first visit.

The Unemployment Compensation Law is not one of what is commonly known as "Relief," but rather is in the nature of "Job Insurance."

It has long been the rule of law in Mississippi that an insurance company cannot take advantage of the insured's failure to make proof of claim when, prior to the time proof of claim should be made, the insurance company denied liability.

Planters Ins. Co. v. Comfort, 50 Miss. 675; Provident Life Acc. Ins. Co. v. Jemison, 120 So. 836, 153 Miss. 60; Clegg v. Johnson, 143 So. 848, 164 Miss. 198.

The Unemployment Compensation Law being in the nature of "job insurance," the Commission is the insurance company, or insurer, the unemployed individual is the insured, and the law itself is the insurance contract.

Authority to waive a regulation is implied from the right to adopt that regulation in the first instance. What better proof can we find that the requirements of the regulation were waived than the fact that the one having the power to adopt that regulation refuses to permit another to comply with it. Consequently, we contend that, having the power to waive these requirements, the Commission is subject to the same rules of law with respect thereto as a private insurance company. We further contend that the statements made to the appellee on the occasion of that first visit to the Meridian Employment Office were in substance a denial of liability. The words used were "You will have to go to Tennessee." The meaning was "You can't get any money from us."

There is much more involved in this case than a mere parol statement of any employee of the Commission. There is a total failure on the part of the Commission to fulfill a duty imposed upon it by statute and by its own regulation. The appellee made his tender, he presented himself in person at the employment office and asked to file a claim. The appellant refused his tender when it said, "You will have to go to Tennessee."

Argued orally by Harry M. Bryan and Henry Edmonds, for appellant, and by Lyle V. Corey, for appellee.

1. MASTER AND SERVANT.

Under provisions of Unemployment Compensation Law authorizing Unemployment Compensation Commission to appeal from decisions of the board of review and providing that appeals might be taken from decisions of the circuit court to Supreme Court, commission had right to appeal to Supreme Court from adverse judgment of circuit court on claimant's appeal from order disallowing claim for benefits (Laws 1936, chap. 176, sec. 6 (i. j), as amended Laws 1940, chap. 295, sec. 4; Laws 1936, chap. 176, as amended, sec. 6(e, h), as amended, Laws 1940, chap. 295, sec. 4).

2. MASTER AND SERVANT.

The provisions of Unemployment Compensation Law that a petition for judicial review should not act as a supersedeas and that appeal by Unemployment Compensation Commission should not have effect of denying benefits to any claimant did not make payment of benefits allowed by circuit court a prerequisite to an appeal to Supreme Court by commission from circuit court's judgment (Laws 1936, chap. 176, sec. 6(i, j), as amended Laws 1940, chap. 295, sec. 4).

ON THE MERITS. (In Banc. May 26, 1941.) [2 So.2d 544. No. 34599.] 1. CONSTITUTIONAL LAW.

The legislature can delegate to administrative agency the right to promulgate such reasonable regulations as might be necessary to accomplish the purposes for which the agency is created.

2. MASTER AND SERVANT.

The Unemployment Compensation Commission did not "waive" compliance with statute or rules and regulations requiring compensation claimant to register for work at public employment office and to file claim for benefits and to report at intervals during waiting period and compensable period, by failing to furnish application blank to claimant going to public employment office, and by erroneously advising him that he could not obtain benefits in Mississippi, where person dealing with claimant at office was merely a receptionist in the waiting room (Laws 1936, chap. 176, secs. 4, 6(a)).

ON MOTION.

ON MOTION TO DISMISS APPEAL.

Alexander, J., delivered the opinion of the court, on motion to dismiss appeal.

Appellee's claim for benefits under the Unemployment Compensation Law (Ch. 176, Laws of 1936, as amended by Chapter 3 of first extraordinary session of 1936, Chapter 147 of the Laws of 1938 and Chapter 295 of the Laws of 1940), after passing through the several intermediate channels provided by the act, was heard by the board of review [Sec. 6(e)], and there disallowed.

Section 6(h) of the Act provides: "Any decision of the board of review in the absence of an appeal therefrom as herein provided shall become final ten days after the date of notification or mailing thereof, and judicial review thereof shall be permitted only after any party claiming to be aggrieved thereby has exhaused his administrative remedies as provided by this act. The commission shall be deemed to be a party to any judicial action involving any such decision, and may be represented in any such judicial action by any qualified attorney employed by the commission and designated by it for that purpose, or at the commission's request by the attorney general."

Appellee thereupon, pursuant to subsection (i) thereof, sought "judicial review thereof by commencing an action in the circuit court" of Lauderdale county. Such action resulted in a reversal of the order of the board of review, and the claim for benefits was ordered paid. An appeal therefrom was taken to this court under authority of said subsection (i) which includes a provision that: "An appeal may be taken from the decision of the circuit court of the county in which the plaintiff resides to the supreme court of Mississippi, in the same manner, but not inconsistent with the provisions of this act, as is provided in civil cases." Appellee contends that the Commission is without right of appeal to this court, and moves for dismissal of such appeal. Appeal from the board of review to the circuit court is available also to the Commission under subsection (j), which provides that "The commission shall be authorized to appeal from decisions of the board of review involving questions of interpretation of this act." Wherefore, we hold that under Section 6(i), Ch. 295 of the Laws of 1940, pp. 499, 501, the Unemployment Compensation Commission of Mississippi has the right of appeal to the Supreme Court from any judgment against it by the circuit court. Such view renders it unnecessary to ground such right upon Section 13 of the Code of 1930 providing for appeals to the Supreme Court from any final judgment of a circuit court in a civil case.

But movant urges further that if such appeal is available to the Commission, it is subject to the condition that the benefits allowed by the circuit court should first be paid. Appellee cites the concluding provision of said subsection (i): "A petition for judicial review shall not act as a supersedeas or stay unless the board of review shall so order," and the proviso in subsection (j) "provided, however, that such an appeal by the commission under this subsection shall not have the effect of denying benefits to any claimant who has been awarded benefits by virtue of the decision of the board of review from which the appeal is taken." Assuming that both the quoted provisions apply to appeals to this court, we cannot hold that payment of awarded benefits is prerequisite to such appeal, but that there is provided merely an appeal without supersedeas.

Motion denied.

Alexander, J., delivered the opinion of the court, on motion to dismiss appeal.

ON THE MERITS.

McGehee, J., delivered the opinion of the court, on the merits.

The question here presented for decision arises under the Mississippi Unemployment Compensation Law, chapter 176, Laws 1936, as amended by chapter 3, Laws of First Extraordinary Session of 1936, chapter 147, Laws 1938, and chapter 295, Laws of 1940. The appeal is from a judgment of the Circuit Court, reversing a decision of the Board of Review created by said statutes, and directing the Board of Review to enter an order allowing weekly compensation at $15 for a period of fourteen weeks in favor of the appellee. Not having registered for work or filed his claim for benefits in the manner, and within the time, required by law, the appellee claims the right to have his application dated back about eighteen months to a time when he presented himself at the local employment office at Meridian to register for work and file a claim, and was erroneously advised by an unidentified employe in the reception room at the office that it would be necessary for him to apply to the Tennessee Unemployment Compensation Commission in order to obtain unemployment compensation.

For several years prior to May 5, 1938, the appellee had been employed by a life insurance company of Memphis, Tennessee, as district manager, with an office at Meridian, Mississippi, with a number of agents and other employes under his supervision. His employment with the company was terminated on May 4, 1938; whereupon he sought information from an attorney as to his right to obtain compensation under the Mississippi Unemployment Compensation Law, chapter 176, Laws 1936, as amended. The attorney advised him, as almost any other attorney not connected with the administration of this law would have done, that he was not familiar with the law, and sent him to the local office of the Unemployment Compensation Commission. The appellee claims that he then went to this office, presented his social security card to one of the ladies in the front office, who read the card and told him that he would have to get his compensation benefits from the state of Tennessee, as his employment was in that state. He told her he thought his company had made contributions to the Unemployment Compensation Fund in Mississippi, where he had been working, but the lady still thought that the information she had given him was correct.

It was not shown that the lady referred to, whoever she may have been, had any authority either to advise claimants in regard to their right to the benefits sought, or to waive any of the conditions prerequisite to an allowance thereof. Moreover, the only reasonable inference to be drawn from the record before us is that the lady was merely a receptionist in the office. The appellee does not claim to have asked for the manager, or anyone else in authority, but left the office after showing his social security card to the lady in the reception room, and reported to his attorney that he had been advised at the office that he would have to take the matter up with the Unemployment Commission of Tennessee. It was then determined that this course would not be taken until after the attorney should conclude a contemplated suit against the employer of the appellee for alleged breach of his contract of employment. That matter was finally terminated during October of that year, but the appellee made no effort during the next several months either to contact anyone in authority at the local office, or at the central office of the Mississippi Unemployment Compensation Commission at Jackson; nor did he ever communicate with the Commission in Tennessee in regard to the matter.

Finally, in October, 1939, he learned through a former fellow employe that he could collect unemployment benefits in Mississippi, whereupon he filed a claim with the local office at Meridian for the fourteen weeks' compensation here involved; but which claim could not be allowed for the reason that it had not been filed within the required time subsequent to the termination of his employment on May 4, 1938. However, the claim was referred by the Claim Examiner to the Referee, who permitted it to be dated back to May 5, 1938, and allowed the same, on the ground that the appellee had presented himself on that date at the local employment office for the purpose of filing his claim for benefits, and was misinformed as to his rights in the premises.

The cause was then appealed by the Claim Examiner to the Board of Review, which, after a full hearing, reversed the decision of the Referee and disallowed the claim. Thereafter a judicial review was obtained in the Circuit Court upon the record made before the Board of Review. That court held that when appellee presented himself to register for work, and to make a claim for benefits at the employment office, his action in that behalf constituted the legal equivalent of a registration for work and filing a claim on the form prescribed for that purpose; and the decision of the Board of Review was therefore reversed and the decision of the Referee reinstated, allowing the claim at $15 a week for a period of fourteen weeks, as if filed on May 5, 1938.

Section 4, chapter 176, Laws 1936, provides that: "An unemployed individual shall be eligible to receive benefits with respect to any week only if it has been found by the commission that: (a) He has made a claim for benefits in accordance with the provisions of section 6(a) of this act. (b) He has registered for work at the employment office designated by the commission within such time limits and with such frequency and in such manner (such as in person or in writing) as the commission may by general rule prescribe, . . ."

Section 6(a) provides, among other things, that "Claims for benefits shall be made in accordance with such rules as the commission may prescribe, at the employment office nearest either to the individual's place of residence or to the place of his most recent employment. . . . An employer shall give to each of his employees at the time such employee becomes totally unemployed, a printed statement of the rules prescribed by the commission relating to the filing of claims for benefits. Such printed statements shall be supplied by the commission to each employer without cost to him."

It was not shown that the employer of the appellee failed to furnish him the printed statement of rules prescribed by the commission relating to the filing of claims for benefits.

It is well settled that the Legislature has the power to delegate to an administrative agency the right to promulgate such reasonable rules and regulations as might be necessary to accomplish the purposes for which the agency is created. Abbott v. State, 106 Miss. 340, 63 So. 667; United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563; Marshall Field Co. v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294.

Among other rules and regulations promulgated by the Mississippi Unemployment Compensation Commission is regulation 103, which provides:

"(a) Any individual claiming benefits or waiting period credits for total unemployment shall report in person at the public employment office most accessible to him, and there shall on form UC 501(1) register for work, and (2) file a claim for benefits. The claim for benefits shall constitute both the individual's registration for work and his claim for benefits.

"(b) In order to establish eligibility for benefits or waiting period credits for weeks of total unemployment during a continuous period of total unemployment, the claimant shall (1) continue to report at intervals of not less than one week, or at intervals of less than one week when directed to do so by the Commission, at the public employment office at which he registered for work and filed his claim for benefits, and (2) file at such office each week a continued claim for benefits on Form UC 507 (Master Index Claim Card) during waiting period and on Form UC 510 (Continued Claim) during compensable weeks. The continued claim for benefits shall constitute both the individual's registration for work and his claim for benefits."

Moreover, it is conceded by the appellee that the commission had the power to promulgate the foregoing regulation, and it is not contended that the same is arbitrary or unreasonable. The appellee's position is that the employment office at Meridian waived compliance with the regulation by failing to furnish him the required form of application when he presented his social security card, and by erroneously advising him that he could not obtain the benefits applied for in Mississippi. A sufficient answer to this contention is that if it should be conceded that someone vested with authority to advise the applicant as to his rights in the premises could waive the requirements, the same could not be waived by a mere receptionist in the waiting-room of the office. The requirement contemplated that an applicant should not only present himself at the office to register for benefits, but that he should also continue to report his availability for work, as well as his desire for benefits provided for while unemployed.

We are of the opinion that the appellee has not brought himself within either the terms of the statute or the rules and regulations prescribed thereunder, so as to be entitled to the compensation allowed.

The judgment of the Circuit Court will therefore be reversed, and that of the Board of Review, disallowing the claim, reinstated.

Reversed and judgment here for appellant.

UNEMPLOYMENT COMPENSATION COMMISSION OF MISSISSIPPI v. BARLOW.

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