I do not agree with either the conclusions reached in the majority opinion or the reasoning therein contained. Even though the examiner may have admitted some evidence which was technically incompetent there is ample and substantial evidence in the record to support his findings. *Page 235 His conclusions as to the uncertainty and unfairness of the testimony of some of the witnesses were amply justified.
In my opinion, the record shows a plain subterfuge, conceived for the sole purpose of an evasion of the law and a planned effort to escape the payment of the tax. Without the provisions contained in paragraph 5(e) of section 2 of the Unemployment Compensation act to prevent such evasions, the whole act would be rendered inoperative and subject to like fraudulent evasions by those unwilling to assume their just share of the burdens of government.
The substantial and undisputed evidence in the record justifies the conclusion that the two Wilsons owned the two corporations, which together employed more than eight employees. Regardless of the two separate corporate entities the business in which each was engaged was similar, if not identical. To say that one was engaged in trucking one commodity and the other a different commodity, is simply evading the question — they were both engaged in the trucking business. This business was operated from one office and under one management by the two Wilsons indiscriminately. The businesses cannot be classified separately simply because they may have had one fleet of truck drivers assigned to the delivery of flour and another to the delivery of other commodities. No one would expect those engaged in hauling both coal and flour to use either the same trucks or the same drivers, indiscriminately, for hauling both. To say that the provisions of this wholesome law can be defeated by such a crude subterfuge is to confess a weakness of law and government, which I am unwilling to admit.
The partisan attitude of the examiner is, in some respects, subject to criticism. He should not, however, in my opinion, be condemned simply because he did not possess that judicial bearing which prevented him from expressing what anyone reading the record must believe. *Page 236