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Sisk v. Arizona Ice & Cold Storage Co.

Supreme Court of Arizona

September 27, 1943

DEAN A. SISK, ROBERT D. KENDALL and JOHN M. SAKRISON, as members of and constituting the EMPLOYMENT SECURITY COMMISSION OF ARIZONA, Appellants,
v.
ARIZONA ICE & COLD STORAGE COMPANY, a corporation, Appellee

APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Reversed and remanded.

Mr. Arthur M. Davis, for Appellants.

Messrs. Conner & Jones, for Appellee.

OPINION

[60 Ariz. 498] ROSS, J.

The appellee is a corporation organized under the laws of Arizona with its principal place of business located in Tucson, Pima County. It is engaged in the business of manufacturing ice and selling it to the public. Two-thirds of its products it disposes of directly to the custom and the other one-third reaches the custom through persons selected and employed by it to deliver its products and collect the price therefor from the custom.

The Employment Security Act of Arizona, Article 10 (sections 56-1001 to 56-1022),

Page 396

Arizona Code 1939, as amended by Chapter 124, Session Laws of 1941, was enacted under the police powers of the state and provides "for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own." Section 56-1001, as amended by section 1, Chapter 124, supra. Under the act every employer of three or more persons (with exceptions not necessary to state) is required to pay contributions on such persons' wages into the reserve fund for use during periods of unemployment. The appellee paid to the commission contributions on the sales and deliveries of ice made directly to the custom by itself and its agents but refused to make like payments on the other sales and deliveries, contending that the retail drivers were not its employees and not under its control or direction.

[60 Ariz. 499] The Employment Security Commission of Arizona, under section 56-1011, as amended by section 11(b) (2), Chapter 124, supra, upon its own motion, after notice and hearing, determined that the appellee corporation was an employer within the terms of the act, that the services were for it and in connection with its business and constituted it an employing unit, and that it should make contributions on all wages earned by the retail drivers from and after January 1, 1936.

From this determination the corporation appealed to the Superior Court of Pima County and after hearing upon the record the court decided that the retail drivers of the corporation "are not employees" within the meaning of the Employment Security Act and that no contributions are due or payable by it in connection with the operations of such retail drivers.

The commission has appealed from such decision, contending, of course, that the facts show the corporation to be an employing unit as defined by the act and liable for contributions on the wages of the retail drivers. This is the question that we are to decide.

Most of the states (38 or more) have acts similar to ours. Many of them have been construed but the constructions have not always been in agreement. They all recognize, however, the legislation to be in the interests and for the security of the "worker and his family." It is an effort to stabilize employment and to secure to the workman and his family an opportunity to have and enjoy the common and ordinary comforts of life during periods of depression and unemployment. The legislature, to assist in the accomplishment of that very laudable object, has provided that certain employers should contribute a percentage on the wages paid by them into a fund, and the question is, is the appellee corporation under the law and the facts required to make such contribution.

[60 Ariz. 500] We are to determine (1) whether the retail dealers in ice performed "services for wages" for appellee within the meaning of section 56-1002, as amended by section 2(i) (1), Chapter 124, supra, which provides that

"'Employment' means any service... including service in interstate commerce, performed for wages or under any contract for hire, written or oral, express or implied";

and (2) whether if such retail dealers did perform "service for wages or under contracts of hire" nevertheless they are within the provisions of subdivision (i) (5) (A), (B) and (C) of said amended section ...


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