Recognizing that this case involves a close question as to the proper construction to be given the 1939 amendment of section 2(f) 1, of the Unemployment Compensation Act, and with due deference to the considered opinion of the majority of the court, I am unable to arrive at the conclusion reached in this opinion. In my judgment the majority opinion, by implication at least, contravenes previous holdings of this court as to the construction to be given the Unemployment Compensation Act. I am unable to agree that the miners and prospectors in this case come within the definition of an "employing unit" engaged in an independently established trade, business, profession or *Page 109 enterprise, and accordingly they should be classed as employees of appellee, as the employing unit.
It is clear that the General Assembly intended to tax only employing units, but that does not, it seems to me, justify the conclusion that to constitute "employment" the services must be performed for wages, as the term "wages" is commonly accepted. The manner of payment is not controlling. The word "wages" must be considered as compensation paid for labor, whether it be a specified sum for given time of service or a fixed sum for specified piece work. (Patten Package Co. v. Houser, 136 So. (Fla.) 353, 356; Champion v. Hermitage Cotton Mills, 98 S.C. 418,82 S.E. 672; In re Thomas Deutche, 182 Fed. 430.) Thus, compensation for services on the basis of tonnage, acreage or sugar content of cultivated beets, has been held not to render the person receiving such compensation as engaged in business for himself. Employers' Mut. Ins. Co. v. Ind. Com. 74 Colo. 201,219 P. 1078.
We have heretofore definitely held that the provisions of the Unemployment Compensation Act differ from common-law concepts of employment where the relation of master and servant exists.(Miller v. Murphy, 379 Ill. 524; Rozran v. Durkin, 381 Ill. 97;Peasley v. Murphy, 381 Ill. 187.) To obtain exemption from coverage under the Unemployment Compensation Act, an employer has the burden of proving that the workmen were free from direction over the performance of the services, and, in fact, that the services were either outside the usual course of the employer's business or were performed outside of all places of the business or enterprise for which such services were performed, and that the workmen were engaged in an independently established trade, occupation, profession or business. Peasley v. Murphy, 381 Ill. 187.
Tested by the foregoing rules to which this court has heretofore definitely committed itself, it is my firm conviction that the parties claiming unemployment compensation in this case were not beyond the pale of the benefits *Page 110 of the act, the purpose of which is to include, by re-definition, many individuals who would have been otherwise excluded by the former concepts of master and servant, and principal and agent as recognized at common law. Rozran v. Murphy, 381 Ill. 97.
The majority opinion recognizes that payment by the piece, job or tonnage does not control, where the workmen are subject to the control of the employer. It is conceded that the prospectors, drillers and miners, here concerned, are engaged in the company's usual course of business and upon the company's land. Tools were furnished by the company, which were to be returned to the company on termination of the employment relationship. The workmen were to prepare and maintain at the company's mines an ample supply of crude silica as requested by the company. Failure to do so on their part gave the company the right to terminate the contract. The company had the right to reject any crude silica not acceptable to it on account of quality and grade and to refuse to pay for rejected material. The company reserved the right to make contracts with others to perform the same work or to conduct such operations on its own account. In the performance of their contracts certain specified requirements made by the company had to be followed by the workmen, such as the size of the holes to be drilled, the grade of silica to be mined and the location of their work. It is difficult to imagine a more complete control over them than that reserved by the company.
Since the burden was on appellee, to obtain exemption, to prove all of the conditions enumerated in the statute, it seems clear that there is a material failure on appellee's part to sustain that burden. The conceded fact that the workmen reserved the right to work for others is insufficient to establish the fact that they were engaged in an established trade, occupation, profession or business. Obviously they were not permitted to do the same kind of work for another mining company if it interfered with the requirements *Page 111 of appellee. There is no proof that they were actually engaged in performing like services for others through an established trade, occupation or business. That they were permitted to perform farm work and odd jobs and to engage in other occupations during the existence of their contracts with the company was no proof that they were engaged in an independently established trade, occupation, profession or business. The exclusion terms of the statute, "independently established trade, occupation or business" must be limited to the character of work involved and not to odd jobs and farming, which constitute merely an avocation as distinguished from an established vocation. The illustration mentioned in the majority opinion that the owner of a lot, who engages an independent contractor to dig a cistern at the specified sum per cubic yard of excavation when finished, is not an employee, is not apropos. If the cistern digger is paid in that manner for work done in the usual course of the lot owner's regular business, he might well be an employee, whereas if he be engaged on his own account in the established trade or business of taking contracts for digging cisterns for others, or if, in an isolated contract he was to dig the cistern for a lot owner, who was not going to use it as a part of his established trade or business, the relationship of employer and employee would not exist. The conclusion reached in the majority opinion, it seems to me, provides an unwarranted means of escape from the burdens of the Unemployment Compensation Act, which were placed upon employers for the public welfare. The act as a whole evinces a deliberate legislative purpose to include in its beneficent aspects all workers to whose security unemployment is a threat.Peasley v. Murphy, 381 Ill. 187.
In my opinion appellee has failed in its burden of proving that the workmen in this case do not come within the class entitled to receive benefits, and the judgment of the circuit court ought to be reversed. *Page 112