THESE two cases, because of similarity in fact and law, *Page 70 were consolidated for trial below and are, for the same reason, submitted to us for disposition in a single opinion. They arise under the Colorado Employment Security Act (S.L. 1941, c. 224), particularly section 5 thereof which deals with disqualification for benefits. The claimants in both cases are coal miners who had for years been employed as such in the northern Colorado fields, one at Frederick and the other at Erie. Work was discontinued in these mines in the spring of 1942, and claim was made for compensation under the act. On May 11, 1942, claimants were offered similar work at Hayden, 175 miles away on the other side of the continental divide, but they insisted the work was not suitable and declined to accept, whereupon the claims deputy denied their claim for compensation, holding that the work at Hayden was suitable and that because of their refusal they became disqualified for benefits under the statute. On appeal to the referee, the decision was reversed. The department appealed in turn to the Industrial Commission which refused compensation. Finally the matter reached the district court which set aside the findings and award of the commission and ordered the allowance of compensation. It is for the purpose of reviewing and reversing the decision of the trial courts that the Industrial Commission has brought the cases here on error.
A detailed statement of the facts is unnecessary because they are undisputed. In addition to what has been said it may be noted that both claimants were family men and had their homes at Erie and Frederick, respectively, and both felt that having to leave their homes and families to enter employment at such a distance from their places of residence made the work unsuitable.
Section 5 (c) (1) of the statute reads: "In determining whether or not any work is suitable for an individual, the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment *Page 71 and prospects for securing local work in his customary occupation, and the distance of the available work from his residence, shall be considered."
In its findings the commission posed the question at issue to be, "Whether or not the jobs offered these claimants were suitable?" Its decision was as follows:
"The Commission, in considering the question raised in this case, is of the opinion that the degree of risk involved to the health, safety, and morals of the claimants, in being referred to the jobs offered, was no greater than that to which they are customarily subjected. The Commission has also taken into consideration the claimants' physical fitness and prior training, their experience and prior earnings, the length of their unemployment and their prospects of securing work in their customary occupations, as well as the distance of available work from their residence, and comes to theconclusion that the only question regarding the jobs offered that could possibly render them unsuitable is the distance of the available work from the claimants' residences.
"In deciding whether or not this factor is such as to render the jobs unsuitable, the Commission is of the opinion that the fact that our country is at war must be taken into consideration. Also, the fact that there is a shortage of coal and a shortage of manpower to mine the coal needed in the war effort must be taken into account. It is essential to the welfare of our nation that full use be made of every possible man-hour. To permit jobs essential to the war effort to remain unfilled while fully qualified men remain idle seems contrary to good public policy. To permit men under these circumstances to draw benefits is certainly not within the intent of the provisions of the Employment Security Act of Colorado.
"The Commission therefore finds that the claimants did fail without good cause to apply for available suitable work when so directed by the Department of Employment *Page 72 Security and the United States Employment Service."
[1] It is at once obvious from a reading of this decision that the commission felt that the only matter involved as rendering the job unsuitable, "is the distance of the available work from the claimants' residences." It is to be noted that the sole reason assigned by the commission for its holding is the fact that our country is at war, and that because of the shortage of coal and manpower as a result thereof, "To permit jobs essential to the war effort to remain unfilled while fully qualified men remain idle seems contrary to good public policy." "Under these circumstances" the decision concludes that the men are not entitled to draw benefits.
While we can understand the patriotic motive that prompted these expressions, the commission was without legal authority to place the decisive factor in the case on this basis. Its only source of authority is in the statute; consequently, we agree with the trial court.
Judgments affirmed.
MR. JUSTICE KNOUS especially concurs.
MR. JUSTICE BURKE, MR. JUSTICE JACKSON and MR. JUSTICE GOUDY dissent.