The term "state experience factor" properly interpreted in the light of the provisions of the "Unemployment Compensation Act" embodied in Chapter 4, Title 26, Code 1940, imports just what these words mean, a factor, based on the factual experience of all employers and their employees operating within this state coming within the influence of the act, afactor or yard stick, by which the contribution rate of the taxpayers — the employers and their employees — in the light of the factual experience of each employer and his employees, is to be determined.
The state experience factor is not a mere arbitrary mathematical calculation based on thin air, but is an ascertained percentage set up on a factual basis of experience in business, of wages paid, wages received, claims paid for unemployment, depending upon periods, hours worked, and the needs of the trust fund to meet the demands of unemployment and social security. Without this factual basis for levying the tax the levy would be purely arbitrary and could not be sustained on any principle of constitutional law.
Section 204, Subsection (E), prescribes the basis for setting up the "state experience factor" and how and when the director shall proceed. It provides: "From the total amount of benefits paid from the unemployment compensation fund during each calendar year there shall be subtracted *Page 211 all amounts credited to the fund during each such calendar year other than employers' and employees' contributions, and the remainder shall be termed the 'amount required for the fund' for each such calendar year. The 'state experience factor'for each calendar year shall be a percentage determined by dividing the total of the amounts required for the fund for thethree most recent calendar years by the state-wide total ofbenefit wages of all employers for the three most recentcalendar years and by adjusting to the next higher multiple of one percent. The state experience factor shall be determinedannually prior to the fifteenth day of March of the calendaryear for which the determination is made." [Italics supplied.] The language of the statute emphasized, clearly indicates the scope of the factual inquiry essential to a fixation of the "state experience factor," and that once determined it applies uniformly to all taxpayers for the tax year, and that the legislature did not contemplate or authorize any refixation, or setting up of a yard stick for one or more taxpayers, not applicable to all, merely to neutralize the errors and mistakes of the director in computing the contribution rate of a single taxpayer.
Section 193, defining the "base period * * * of an individual's benefit year," has nothing to do with the fixation of the "state's experience factor," except as it enters into or influences "the state-wide total of benefit wages of all employers for the three most recent calendar years."
The appellant, through counsel, as we construe the brief filed with the application for rehearing, concedes that the state experience factor rests upon a factual basis, but he contends, to quote from his brief: "For example, if the parties had not stipulated the fact of the result of a finding by the Director of the State factor based upon the four quarter period, the burden would have been cast upon the Director tofirst determine the facts. This determination would be conclusive when presented to the Court unless impeached for fraud. In other words the only testimony which would bepresented to the Court would be the Director's findings offact." [Italics supplied.] The substance of this contention is, pending the hearing of the taxpayer's appeal if an error of the director in ascertaining the taxpayer's contribution rate has been exposed, the statute authorizes the director to make an exparte finding of fact, which is binding upon the court and the taxpayer, who has no voice in such determination and has no right to offer proof in respect to the factual basis of such finding. The statute so construed would violate the due process clause of the constitution. Due process of law implies, among other things, the right to contradict by proof every material fact which bears on the question of right involved. 2 Mayfield's Dig. p. 723, § 831; Zeigler v. South N. A. R. Co.,58 Ala. 594; 12 Amer. Juris., pp. 267, 271, §§ 573-575.
The state experience factor of 13% for the year 1941-1942, was applicable to the Metcalf case, and the director made the contention in that case, in accord with the holding of the majority opinion in this case, that the state experience factor was not subject to redetermination, stating two reasons therefor. We quote from the brief filed December 30, 1943, "Proposition No. 7":
"The method of calculating the tax rate as contended by appellants is administratively impossible because the records on which it rests are non-existent and were neither established nor required to be kept by the then existing law. (Citing the statutes.)
"Proposition No. 8. The method of calculating the tax rate as contended for by appellants, if it were possible would involve an enormous additional expenditure to accomplish what is already achieved by the Director's method of calculation, namely, to replenish the Trust Fund with the amount needed based upon past experience. (Citing the statute.)"
The fact that the Legislature made no provision for the preservation of the records containing the factual data, the basis for determining the state's experience factor, is conclusive that it did not intend that such factor should be changed after the fifteenth of March of the year in which it was set up and declared. Assuming that the statement of the director in the Metcalf case, that such records were nonexistent, and that a resurvey "would involve an enormous additional expenditure to accomplish what is already achieved by the Director's method of calculation," the situation sustains the holding that the statute did not contemplate or authorize a resurvey of the facts on the appeal of a taxpayer, on which appeal the statute limited the review to his contribution rate. *Page 212
To state briefly the scope of the factual inquiry, the calendar years 1938, 1939 and 1940 constitute the time element to be reviewed in order to establish the state experience factor for the tax year beginning April 1, 1941. This means it would be necessary to review the Department's records for each individual employee covered by the Act and ascertain his earnings for each of the calendar quarters involved in the three year period.
In 1938 there were 350,000 (estimated) workers covered by the Act.
In 1939 there were 377,300 (actual) workers covered by the Act.
In 1940 there were 488,600 (actual) workers covered by the Act.
The number of covered workers for the years 1939 and 1940 are taken from information furnished by Director Frank R. Broadway. The number of covered workers for the year 1938 is estimated, conservatively, we think, at 350,000. Employer payroll reports are furnished the Department quarterly, or 4 reports for each calendar year. 350,000 multiplied by 4 equals 1,400,000, or the number of individual items to be checked and verified with respect to employees alone in undertaking to reestablish a State Experience Factor. 377,300 multiplied by 4 equals 1,509,200, or the number of individual items to be checked and verified with respect to the year 1939. 448,600 multiplied by 4 equals 1,794,400, or the number of individual items to be checked and verified with respect to the year 1940. This makes a total of 4,703,600 individual employee items with respect to calendar quarter earnings for the years 1938, 1939 and 1940. The second essential step in the computation would be to compare each of the individual employee slips with the original quarterly payrolls furnished by every employer to the Director in order to see if typists, in transcribing employee earnings from employer's payroll records to the individual employee wage slips, made any errors in transposition. This would require comparing each individual wage slip of every employee covered by the law for the three calendar years under review with the original payroll record of every employer in the state, which of itself would be a matter of several million comparisons.
This makes plain and irrefutable the wise provision of the legislature that the only review authorized under the Unemployment Compensation Act is the employer's benefit wage percentage, and his contribution rate as fixed by his benefit wage percentage, specifically set out in Section 204 (H). Evidently, the director at the time of filing his brief in the Metcalf case, in fact realized this stupendous task when he there took the position that such a procedure was impossible to follow.
Moreover, it is apparent from the annual report of the Director of Industrial Relations to the Governor for the Fiscal Year ending September 30, 1942, matters of which the court takes judicial notice, as stated in brief filed in the Metcalf case: "That a variation of as much as $7,000,000.00 in benefit wages paid throughout the State of Alabama would not have the effect to change the state experience factor one iota. In the Fourth Annual Report of the Department of Industrial Relations to the Governor of Alabama, for the fiscal year ending September 30, 1942, on pages 24 and 25, appear the computations of the State Experience Factor for 1941 and 1942. Actually, the factor for 1941 was 12.32% and only because of the requirement of 'adjusting to the next highest multiple of one per cent (1%)' [Section 204(E)] was it stated to the 13%. The amount required for the fund for the years 1938, 1939 and 1940, or 'D' in the formula was $16,447,159.63. That amount is fixed, it is the amount of contributions or taxes actually required for the fund to pay benefits to claimants in the years 1938, 1939, and 1940. That amount is only 12.32% of the maximum liability, that is the state-wide total of benefit wages of all employees for the same three most recent calendar years, namely, $133,543,984.21. Mathematically
D 16,447,159.63 expressed — = -------------- = 12.32%. Since C 133,543,984.21
the numerator is fixed by actual payments, it will be seen that the denominator C could be changed by subtracting as much as 7,027,371.90 without increasing the percentage above 13%. In other words, if we
D 16,447,159.63 say: — = -------------- = 13%, the State C 126,516,612.31
Experience Factor would still remain, 13%. We may conclude that a very material change can be made in the denominator C without affecting the State Experience Factor."
On the other hand a slight error in calculating the taxpayer's benefit wages might materially affect his contribution rate. *Page 213 The scope of the inquiry here is limited to the individual taxpayer's experience.
It is further insisted that the rule of strict construction should not be applied to the procedural provisions of the statute. In the majority opinion we cited Westenhaver v. Dunnavant, 225 Ala. 400, 143 So. 823, written by Justice Gardner, now Chief Justice, applying that rule which has long existed in Alabama. It was declared by this court in Crowder v. Fletcher Co., 80 Ala. 219, 222, speaking through Stone, C. J.: "* * * 'statutory remedies, especially when the right to be enforced was unknown to the common law, are to be followed with strictness both as to the methods to be pursued, and the cases to which they are applied.' * * *" A more concise statement of the rule is found in Westenhaver v. Dunnavant, supra: "And statutory remedies for rights unknown to the common law are to be strictly construed."
But it is also contended in the application for rehearing that a mistake of law by the Director is not beyond judicial review, citing Ex parte Alabama Textile Products Corp.,242 Ala. 609, 7 So.2d 303, 308, 141 A.L.R. 87, a hearing on petition for common law writ of certiorari to review the action of the Board of Appeals, Division of Unemployment Compensation Commission, Department of Industrial Relations of the State of Alabama. The court in that case observed: "We have firmly adhered to the principle that on certiorari to an inferior jurisdiction this Court will only consider questions of law. But if such tribunal misapplied the law to the facts as found by it, or if there was no evidence to support the finding, a question of law is presented which should be thus reviewed. (Citing Authorities.)"
A review of authorities cited to support the quoted statement is to the effect that if the conclusion of fact of the acting official, court or body is without material evidence to support it; or if the inferior tribunal, court or body states all the facts but misapplies the law to the facts, this court on certiorari will quash such conclusion. We quote from the opinion in the last cited case:
"Our conclusion is that the Appeals Tribunal and Board of Appeals did not correctly apply the law to the facts which they found and which were agreed to be true.
"It results that the order of both the Appeals Tribunal and the Board of Appeals affirming the conclusion of the deputy examiner are contrary to the law, as is also the conclusion of the deputy examiner. It is therefore ordered that all those orders be and they are hereby quashed and held for naught."
We have found no case holding that this court on certiorari will enter into a determination of facts or authorize such redetermination. See Ex parte City of Birmingham, 199 Ala. 9,74 So. 51; City of Birmingham v. Southern Bell Tel. Tel. Co.,203 Ala. 251, 82 So. 519; Ex parte Slaughter, 217 Ala. 515,116 So. 684.
However, a complete answer to this suggestion is that, we are not here reviewing the finding of the director on common law writ of certiorari. We are reviewing the judgment of the Circuit Court of Mobile County on a direct appeal and the circuit court to which the taxpayer appealed under Section 204(H) is a court of law, not a court of equity, and the statute which authorizes the appeal limits the scope of that appeal.
It has also been intimated in some of the briefs that the holding of the majority in this case leaves the director with irrevisable power in setting up and administering the trust, leaving a door open to abuse and fraud, against which the taxpayer and others interested in the trust would be without remedy. This intimation is fallacious. If abuse or fraud intervene in the administration of the trust, a court of equity would, no doubt, have ample power to take charge and administer it until a new director could be selected.
The application for rehearing is without merit and is due to be overruled. It is so ordered by the court.
THOMAS, LIVINGSTON, and STAKELY, JJ., concur. *Page 214