Appellant has since the effective date of the Unemployment Compensation Law (September 1, 1936, Ch. 12, 3d Ex. Sess., 1935, sec. 7) filed reports and paid under protest the excise tax required by said law in the total amount of $2620.05. On March 19, 1941, appellant filed an application for refund, contending his employes were not covered, because engaged in agricultural labor. From an order of the board denying such application this appeal comes to us on a stipulation summarized as follows.
Appellant owns or is the tenant of between 800 and 900 acres of farm lands, upon which he raises potatoes, onions, lettuce, carrots, and peas. He also owns and operates two so-called processing sheds, not located on the farms. Appellant cleans, grades, and packs at these two sheds all of the produce raised upon his own lands and those rented by him, and in addition purchases from, or handles on consignment, similar produce grown and harvested by others, all of which he sells to track buyers, jobbers, and car lot distributors. Such products are not saleable unless they have been processed, and such processing is necessary by reason of state or federal statutes or regulations or requirements of purchasers. Rejected produce remains the property of the farmer and is returned to him.
The so-called processing operations consist of cleaning, washing, cooling, and sorting the vegetables, and grading, sizing, packing, icing, and loading the marketable portion thereof. No change whatever is made physically or chemically in the substance or structure of the vegetables. The contributions paid were for wages paid the employes engaged in these operations, and two employes engaged in clerical duties, one practically continuously and one part time. The processing operations are seasonable, the labor is unskilled, and the equipment is not specialized. This work is often done by the individual farmer on his own place by contract crews, in which event no tax is charged or collected from the farmer. Growers who do their own processing pay no tax.
The produce harvested on appellant's lands constituted 22 1/2% of the produce processed by appellant at his sheds. *Page 578
Appellant made contributions to the United States until the end of 1939, when the federal act as amended became effective, and after which no further contributions were required from appellant by the United States on account of the labor aforesaid.
Some former employes received benefit payments based in part upon wage credits earned in the employ of appellant.
The Industrial Accident Board found the services rendered in processing the produce purchased or handled on consignment by appellant were not exempt employment and the wages for such services are subject to the excise tax, except that the services performed in connection with the vegetables raised upon the lands of which appellant is owner or tenant are agricultural labor, that the wages paid for said services are exempt from the excise tax levied, and ordered that 22 1/2% of the taxes paid be refunded. The appellant appealed from that part of the order denying his petition for refund charged against him and paid for labor in processing products not grown or raised by him, i. e., both purchased by him and handled on consignment.
No question of jurisdiction was raised by the parties. The court, however, sua sponte, submitted to counsel in this and other cases presently presented and akin hereto queries as to the jurisdiction of this court of the proceeding herein, dependent in effect upon two uncertainties — first, whether or not the constitutional amendment providing for a direct appeal from the Industrial Accident Board to this court submitted by the legislature (1935 S. L., p. 377) and ratified and approved by the people at the general election of November 3, 1936 (1937 S. L., p. 498), included appeals from the Industrial Accident Board in so-called social security or unemployment compensation cases, as the one herein is; and, second, whether the same includes claims before, and orders made by, the board, as herein, for a refund of taxes paid by the asserted employer under protest, or whether such proceedings are properly and solely cognizable because of Idaho constitution, *Page 579 article 5, sections 2, 13, and 20,1 by district courts and, within the jurisdictional amount, under sections 21 and 222 thereof by probate and justice courts.
Discussions in the briefs by counsel at least suggest these two additional questions: first, whether the legislature intended the statute to cover direct appeals of this kind; and, second, whether, since the board was in effect prosecutor, judge, and jury, a hearing before them, with their findings binding on the courts, would constitute due process.
It is doubtful if either party herein could have (they have not) raised these jurisdictional questions because appellant sought relief under the statute, and respondent has asserted a traverse under the statute. (Brady v. *Page 580 Place, 41 Idaho 747, 242 P. 314; Taylor v. Girard, 54 Idaho 787,36 P.2d 773; Henderson v. Twin Falls County, 59 Idaho 97,80 P.2d 801.)
All of the parties in their briefs in response to the questionnaire herein take the position that the board has jurisdiction and that the orders made denying refunds were directly appealable.
The court, therefore, in discussing the jurisdictional questions would in a way be shadow-boxing only itself, because there is no real opponent to the views advanced by counsel. It might be better to dispose of such contentions at the threshold of the influx of possibly continually increasing litigation of this kind, rather than to wait until a doubtful rule has, because of indecisive silent acquiescence in or approval thereof, become so intrenched that its eradication would be fraught with difficulty and perhaps with hazards affecting not only procedure but substantive rights resting upon a juristic structure of straw.
However, ordinarily and generally questions not raised by the parties will not be raised by the court (In re Brainard,55 Idaho 153, 39 P.2d 769), and constitutional questions will not be determined unless absolutely necessary. (Howell v. Boardof Commissioners, 6 Idaho 154, 53 P. 542; McGinness v. Davis,7 Idaho 665, 65 P. 364; Jack v. Village of Grangeville, 9 Idaho 291,74 P. 969; Mills Novelty Co. v. Dunbar, 11 Idaho 671,83 P. 932; Kimbley v. Adair, 32 Idaho 790, 189 P. 53; Loganv. Carter, 49 Idaho 393, 288 P. 424; In re Allmon, 50 Idaho 223,294 P. 528; Garrity v. Board of County Commissioners,54 Idaho 342, 34 P.2d 949; In re Brainard, supra; Albrethsenv. State, 60 Idaho 715, 96 P.2d 437; McLean v. Hecla MiningCo., (Ida.) 108 P.2d 299.) Nevertheless, the court has under similar circumstances considered and passed upon such questions. "However, in view of the fact that the court submitted the question to counsel and they have argued it here, we have concluded to consider the question." (Hull v. Cartin,61 Idaho 578, at 596, 105 P.2d 196.) We will however again, but pointing out the hazards of such course, reserve, as in BigWood Canal Co. v. Unemployment Compensation *Page 581 Division, 61 Idaho 247, 100 P.2d 49, such jurisdictional questions and proceed to the merits of the controversy.
The criterion is whether the legislature intended by the phrase "agricultural labor" to exempt any of the operations carried on herein. The board classified as agricultural labor all the work done by appellant and his employes on produce raised by him, and the appeal does not involve the same, and we need not consider it further. The entire court is of the opinion that the activities of the appellant and his employes on products purchased outright by him from other producers and growers are in the same category, and the order of the board was in this particular incorrect. There remains only for determination the classification of the work done in connection with produce handled by appellant on consignment.
The purpose of the statute as declared by the legislature is to ameliorate conditions of unemployment. (Sec. 2, Ch. 12, 3d Ex. Ses. 1935, p. 21.) The legislature has the right to grant exemptions from taxation. (Art. 7, Sec. 5, Idaho Constitution.) On the other hand, we may take judicial notice that unemployment exists among agricultural labor.
The term "agricultural labor" has been variously and ununiformly defined. It is a more restrictive phrase than agricultural pursuits. (In re Roby, 54 Wyo. 439,93 P.2d 940.) Exemption from taxation is to be strictly construed against the exemption. (Bistline v. Bassett, 47 Idaho 66, at 71,272 P. 696, 62 A.L.R. 323; Andrews v. North Side Canal Co.,52 Idaho 117, at 123, 12 P.2d 363; Lewiston Orchards Irr.Dist. v. Gilmore, 53 Idaho 377, at 383, 23 P.2d 720.) This rule has been applied to this form of excise tax. (Big WoodCanal Co. v. Unemployment Compensation Division, supra.) The trend in a cognate field (workmen's compensation) has been not to enlarge exemptions. (Gloubitz v. Smeed Brothers,53 Idaho 7, 21 P.2d 78; Dorrell v. Norida Land Timber Co.,53 Idaho 793, 27 P.2d 960; Mundell v. Swedlund, 59 Idaho 29,80 P.2d 13.) The statutory changes and amendments of the unemployment compensation statute, *Page 582 both federal and state, have been in the same direction.3 The authorities recognize and make a distinction between labor performed as an agricultural activity, and performed in the commercial or industrial field merely as an adjunct to agriculture. (Park Floral Co. v. Industrial Commission,104 Colo. 350, 91 P.2d 492; Wayland v. Kleck, (Ariz.) 112 P.2d 207; Cowiche Growers v. Bates, (Wash.) 117 P.2d 624;H. Duys Co. v. Tone, 125 Conn. 300, 5 A.2d 23; NorthWhittier Heights Citrus Ass'n v. National Labor RelationsBoard, 109 F.2d 76.) This thought has been recognized by this court. In Cook v. Massey, 38 Idaho 264, 220 P. 1088, commercial threshing was considered an agricultural pursuit, because of the historical background, legislative intent and interpretation as gleaned from other statutes, and that grain is not a finished farm product until threshed. In Gloubitz v.Smeed Brothers, supra, the court followed with approval the restrictive definition in the workmen's compensation statute that an agricultural pursuit was confined to the handling of livestock on the farm *Page 583 or open ranges, and did not include its delivery as a commercial or industrial activity apart from and unconnected with agricultural pursuits as such. In Mundell v. Swedlund,supra, and Dorrell v. Norida Land Timber Co., supra, the court clearly held that it was the general scope of the activity and not the particular thing done which determined the classification.
Any number of activities if carried on in the home or on the farm are agricultural in their nature, whereas if carried on under different conditions, either as to place or extent of the work performed, fall into a different classification. Among others, we may mention and call attention to baking or cooking in the home which are domestic service, where it is done as purveying to the public it partakes of industrial or commercial characteristics; compare butchering, spinning, weaving, sewing, and tailoring, drilling of wells, carpentry in the repair of buildings on a farm, care, repair, and upkeep of farm machinery or machinery generally.
It is urged that a broad, general definition should be *Page 584 given the term (agricultural labor) and that niceties of distinction should not be engaged in because of the consequent difficulty of the employer and the board in determining as to whether the employment falls within one class or the other. In dealing with an administrative board of this kind, however, such almost infinitesimal lines of demarcation cannot be avoided, and again we must recognize that, as has heretofore been stated, each case must be decided more or less upon the peculiar and definitive features involved therein. Illustrations too numerous to even mention readily occur to any one of work which if done in the home would be domestic and exempt, under other circumstances and in a different environment would not be; so with work on or connected with farming.
Courts as courts should not shut their eyes to what they know of the common affairs of business and industry. While the work done by appellant both for himself and others was of an agricultural nature, performed on consigned produce, it partook of the nature of a business in the industrial field, as distinguished from employment which we believe the legislature intended to exempt from the operation of the unemployment compensation statutes, and the board was justified in making the distinction it did as to consigned produce.
The order as to produce purchased should be reversed. Otherwise affirmed.
Holden, J., concurs.
1 "Sec. 2. Judicial power — Where vested. — The judicial power of the state shall be vested in a court for the trial of impeachments, a Supreme Court, district courts, probate courts, courts of justices of the peace, and such other courts inferior to the Supreme Court as may be established by law for any incorporated city or town."
"Sec. 13. Power of legislature respecting courts. — The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a coordinate department of the government; but the legislature shall provide a proper system of appeals, and regulate by law, when necessary, the methods of proceeding in the exercise of their powers of all the courts below the Supreme Court, so far as the same may be done without conflict with this constitution."
"Sec. 20. Jurisdiction of district court. — The district court shall have original jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be conferred by law."
2 "Sec. 21. Jurisdiction of probate courts. — The probate courts shall be courts of record, and shall have original jurisdiction in all matters of probate, settlement of estates of deceased persons, and appointment of guardians; also jurisdiction to hear and determine all civil cases wherein the debt or damage claimed does not exceed the sum of five hundred dollars, exclusive of interest, and concurrent jurisdiction with justices of the peace in criminal cases."
"Sec. 22. Jurisdiction of justices of the peace. — In each county of this state there shall be elected justices of the peace as prescribed by law. Justices of the peace shall have such jurisdiction as may be conferred by law, but they shall not have jurisdiction of any cause wherein the value of the property or the amount in controversy exceeds the sum of three hundred dollars, exclusive of interest, nor where the boundaries or title to any real property shall be called in question."
3 "The term 'covered employment' shall not include —
(f) Services performed in the employ of an individual owner or tenant operating a farm in connection with the cultivation of soil, the production and harvesting of crops or the raising, feeding or managing of livestock, bees or poultry, or in connection with the processing, packing or marketing of the produce of such farm where such processing, packing or marketing is an incident to the ordinary farming operations of such individual owner or tenant; provided, however, that nothing in this subsection shall be construed to exclude from the term 'covered employment' services performed in the employ of any person or persons who operate a farm or farms only incidental to a principal occupation or occupations which would otherwise be termed covered employment within the meaning of this Act." [Sec. 18-5, Ch. 182, 1941 Ida. S. L.]
"(1) The term 'agricultural labor' includes all service performed —
(1) on a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife.
(2) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm.
(3) In connection with the production or harvesting of maple sirup or maple sugar or any commodity defined as an agricultural commodity in section 1141j (g) of the Title 12, as amended, or in connection with the raising or harvesting of mushrooms, or in connection with the hatching of poultry, or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways used exclusively for supplying and storing water for farming purposes.
(4) In handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, any agricultural or horticultural commodity; but only if such service is performed as an incident to ordinary farming operations or, in the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market. The provisions of this paragraph shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticulture commodity after its delivery to a terminal market for distribution or consumption.
As used in this subsection, the term 'farm' includes stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards."