It is asserted by the defendants that unemployment is a matter of public concern and that a system of insurance to relieve its burdens tends to promote the public welfare and that it is within the reserved police power of the State to enact statutes to accomplish that end. Based on that premise the defendants contend that the New York Unemployment Insurance Law *Page 17 (Laws of 1935, ch. 468) is constitutional in all its parts. The statute covers employers and employees in every kind of industry excepting six classes: (a) Agricultural employments; (b) family relationship; (c) religious, charitable and educational work; (d) non-manual or "white collar" occupations where the salary or wage is over fifty dollars per week; (e) employment by the State or governmental subdivisions; (f) employers employing less than four persons. The statute excludes from its operation all unemployed employees belonging to a class, other than manual laborers, employed at a rate of wages of more than twenty-five hundred dollars a year or more than fifty dollars a week.
All employers must pay annually three per cent of the total annual payroll of those entitled to benefits to a State fund called the unemployment insurance fund, the payment for 1936 to be one per cent; for 1937, two per cent, and thereafter three per cent annually, the entire fund to consist of such payments.
Benefits from the fund thus established can only be paid to one who has first established total loss of employment as defined in the statute and who has been employed for a specified period in the year or two years just preceding his unemployment. The amount of benefits from the fund and their duration are limited to fifty per cent of the prior wage but not less than five dollars a week nor more than fifteen dollars per week and for not longer than sixteen weeks. A waiting period of three weeks must intervene between the filing of a notice of unemployment and the commencement of benefits.
In cases of discharge for misconduct or on account of strikes or industrial disputes the waiting period is ten weeks. An unemployed person who refuses employment loses his right to benefits provided the offered employment is not objectionable on the specific grounds specified in the statute. Contributions from all employers covered *Page 18 by the statute are pooled by deposit in one fund. Administration is by the Industrial Commissioner with an advisory council. The Commissioner is to set up local offices throughout the State to act as agencies for employment and for the distribution of benefits. Such in a general way is the plan which it is contended by the defendants will promote public welfare and prosperity.
It is well to have in mind some of the things which the statute was not enacted to accomplish. The statute is not limited in its application to involuntary unemployment. One who voluntarily leaves employment or is discharged for valid cause may still be entitled to benefits.
The statute deals entirely with the effect of unemployment. It contains no provisions to prevent or limit its spread. It provides benefits for a defined class of unemployed employees. It does not deal with the causes of unemployment or cause more employment except it creates more offices which must be filled.
Neither the State nor employees contribute to the fund. A merit rating system under which an employer contributes to the fund with reference to unemployment in his business is not provided for as in all other statutes on the subject enacted by other States. One in whose business there is no unemployment pays into the fund on the same basis as one in whose business there exists an unusually large proportion of unemployment.
Benefits are not based upon need of financial assistance. One with an assured income is entitled to the same benefits as one without any income at all. The statute also permits the payment of benefits to one who quits a job without excuse or justification; to one discharged for misconduct; to one who went out on a strike; to one wrongfully discharged who may have a valid cause of action to recover damages for such wrongful discharge; to one to whom employment is available if such employment falls within the exceptions specified in the statute. The statute also requires payments into the fund by the *Page 19 employer of four or more persons in cases where the employers have no business whatever as in the case of domestic servants.
Broadly, the defendants contend that the statute will have the effect of alleviating the evils of unemployment, promote industrial security and the general welfare. To sustain such contention the defendants have submitted to the court charts, documents and extra judicial opinions tending to sustain such contention. The plaintiffs have also submitted literature of like nature, tending to establish exactly the opposite contention. Interesting as such literature is, I suppose it is only competent as tending to establish the fact that reasonable persons may entertain different views and that, therefore, the question was one for the determination of the Legislature and not for the courts. See opinion of Justice HOLMES in Adkins v. Children'sHospital, 261 U.S. 525, 570, 571, also opinion of Justice SUTHERLAND at pp. 559, 560.
There can be no doubt about the general principles which govern courts in passing upon the constitutionality of statutes which depend upon the existence of facts which have been investigated by the Legislature. There always exists a presumption in favor of the findings of the Legislature and the validity of its acts. Courts must, however, be able to discern that there is a reasonable basis for the Legislature's findings and that its action has a real and substantial relation to the public welfare. (Jacobson v. Massachusetts, 197 U.S. 11; O'Gorman and Young,Inc., v. Hartford Fire Ins. Co., 282 U.S. 251.)
While the plaintiffs question the constitutionality of various separate provisions of the statute, their principal contention strikes at the very heart of the act and asserts that the act is unconstitutional as a whole because it constitutes a violation of section 1 of the Fourteenth Amendment of the Constitution of the United States which provides that no State shall "deprive any person of life, liberty, or property, without due process of law" nor *Page 20 deny to any person the equal protection of the laws. Also that it violates section 6 of article 1 of the State Constitution which provides that no person shall "be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation."
The court below (Special Term, Albany county) in the action brought by the Associated Industries of New York State, Inc., sustained the plaintiff's contention upon those broad grounds; in the actions brought by W.H.H. Chamberlin, Inc., and E.C. Stearns Co. the court below (Special Term, Onondaga county) sustained the plaintiffs' contention to the extent of invalidating the statute in so far as benefits are made payable thereby to employees discharged for misconduct or unemployed due to a strike, lock-out or other industrial controversy, but upheld the statute otherwise. The questions presented are whether the statute deprives plaintiffs of their property without due process of law, whether it denies to plaintiffs the equal protection of the laws, whether it deprives plaintiffs of their liberty of contract without due process of law and whether it takes plaintiffs' property for public use without just compensation.
If the statute violates the constitutional provisions in either respect, it cannot be sustained no matter how persuasive the arguments may be that it promotes the public welfare, and is, therefore, within the police power. "First the constitution and then the police power" is the test that courts are required to apply.
If the United States Supreme Court has in principle decided the questions involved we should follow such decision without regard to our personal views. (People ex rel. Tipaldo v. Morehead,270 N.Y. 233.)
The statute contains a declaration of the policy of the State which is declared to be that "economic insecurity due to unemployment is a serious menace to the health, welfare and morals of the people of this state;" *Page 21 also "involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family" (§ 500).
The statute, however, is not limited in its application to involuntary unemployment and it does not contain any provision which tends to prevent its spread. It is limited to the effects of unemployment and provides benefits for a limited class of unemployed employees.
It does not by its provisions tend to prevent unemployment or to bring about greater employment. In fact, it is urged by plaintiffs that the effect of the statute will necessarily be to increase unemployment because those employing four persons will get along with the assistance of three so as to avoid the necessity of contributing to the fund and that all employers subject to the statute will reduce the number of employees and the amount of the payroll as much as possible and thereby keep the amount of contributions to the fund as low as possible.
The statute recites that "the well-being of the wage earners of this state require(s) the enactment of this measure for the compulsory setting aside of financial reserves for the benefit of persons unemployed through no fault of their own" (§ 500). Nevertheless, the statute provides for benefits to those who may be unemployed through their own fault.
Concededly, the act does not purport to have been enacted for the benefit of the wage earners of the State as a whole but its benefits are limited to a certain class of unemployed wage earners. Those not included in the act under the operation of well-settled economic laws will be injuriously affected as employers will, as far as possible, add the three per cent of the wage roll which they are compelled to pay into the fund to the selling *Page 22 price of goods or services and a portion of the increased cost will be borne by the wage earners not covered by the act.
The three per cent of the payroll which every employer is required to pay into the fund is not paid for the benefit of his own unemployed employees only. He may not have any unemployed employees and his entire contributions to the fund may be used for the unemployed employees of others even though such unemployed employees are not in need of financial assistance. It is, therefore, urged that general welfare cannot be promoted by the act; that only the limited class entitled to share in the fund are benefited, but that even though there is some benefit to the general public, it is indirect. Finally, it is urged that there is no way that unemployment may be lessened or benefited by placing increased burdens on employers. It is pointed out that under the act the employer who employs the most help and pays the highest wages and contributes most to the welfare of wage earners is penalized by being required to pay most into the fund.
It seems clear that the statute cannot be sustained as a tax law. The statute does not levy or assess a tax. It is a part of the Labor Law and it prescribes penalties contrary to the provisions of the Tax Law (Cons. Laws, ch. 60) making it a misdemeanor for an employer willfully to refuse to pay three per cent of his payroll into the fund. "A tax, in the general understanding of the term, and as used in the Constitution, signifies an exaction for the purpose of the Government. The word has never been thought to connote the expropriation of money from one group for the benefit of another." (United States v.Butler, 297 U.S. 1.)
If the statute is to be sustained, it must be because it is deemed to be within the police power of the State. That power, however, is limited by the Constitution and it has always been held that the Legislature could *Page 23 not, under the guise of the police power, enact a valid law the effect of which would be to take the property of one class and give it to another class. (Louisville Joint Stock Land Bank v.Radford, 295 U.S. 555, 601; Lake Shore Michigan Southern Ry.Co. v. Smith, 173 U.S. 684; Railroad Retirement Board v.Alton R.R. Co., 295 U.S. 330.)
The statute clearly indicates that the purpose of the Legislature was not the relief of the poor and needy but the benefit of a limited class of employees temporarily out of work.
The benefit to the general public, if any, would be indirect and incidental. Such benefit does not make the statute one for the general welfare.
I am unable to distinguish this case from the principle decided in the case of Railroad Retirement Board v. Alton R.R. Co. (supra) which decided that the act of Congress was in conflict with the due process clause of the Fifth Amendment which is the same as the due process clause of the Fourteenth Amendment applicable to State legislation. (Nebbia v. New York,291 U.S. 502, 525.)
The decision in that case was placed upon two grounds: First, as above stated, and, second, upon the ground that the statute did not constitute a regulation of interstate commerce. The decision on the first ground is as binding upon this court as the decision upon the second ground. I agree with Justice RUSSELL, who presided at Special Term in the action brought by Associated Industries of New York State, Inc., that the principle decided is applicable and controlling in this case. The provisions of the Federal act and the statute here involved are very similar. The Federal act provides for compulsory contributions by railroads to a fund to be distributed as pensions to retired employees, the fund to be a single pooled fund, the fund to be made up of contributions of employers and employees. All interstate carriers are treated as a single employer and all employees as employees *Page 24 of a single employer; the benefits under the fund to be at a given rate; the contributions of individual carriers to the fund to be at a disparate rate. The Federal act applies only to interstate carriers subject to Federal regulation. It requires each carrier to contribute a fixed amount annually without regard to the number of employees who become superannuated and, therefore, entitled to the benefits of the fund. It provides that former employees no longer in the service who may have been discharged for cause shall be entitled to the benefits. It also provides that an employee shall be entitled to benefits without regard to his need for financial assistance. It will be observed that those provisions are in substance contained in the statute here in question. Mr. Justice ROBERTS, writing the opinion for a majority of the court, said: "It is arbitrary in the last degree to place upon the carriers the burden of gratuities to thousands who have been unfaithful and for that cause have been separated from the service, or who have elected to pursue some other calling, or who have retired from the business, or have been for other reasons lawfully dismissed. * * * Certain general features of the system violate the fifth amendment. Under the statutory plan the draft upon the pension fund will be at a given rate, while the contributions of individual carriers to build up the fund will be at a disparate rate. This results from the underlying theory of the act, which is that all the railroads shall be treated as a single employer. * * * There is no warrant for taking the property or money of one and transferring it to another without compensation, whether the object of the transfer be to build up the equipment of the transferee or to pension its employees. * * * We conclude that the provisions of the act which disregard the private and separate ownership of the several respondents, treat them all as a single employer, and pool all their assets regardless of their individual obligations and the varying conditions *Page 25 found in their respective enterprises, cannot be justified as consistent with due process." (Railroad Retirement Board v.Alton R.R. Co., supra, pp. 349, 355, 357, 360.)
The opinion also points out that the act is intended to furnish assurance of payments of pensions to employees of all the carriers so that solvent railroads are required to furnish the money necessary to meet the demands of the system upon insolvent carriers. The effect of the decision is to hold that the act is invalid because in conflict with the due process clause of the Fifth Amendment.
The defendants rely largely on the cases involving workmen's compensation statutes to sustain the validity of the present act. I think those cases have no application. They are distinguished in the opinion of Justice ROBERTS, who also distinguishes the case of Dayton-Goose Creek Ry. Co. v. United States (263 U.S. 456) and Noble State Bank v. Haskell (219 U.S. 104).
The head money case (Edye v. Robertson, 112 U.S. 580) involved the regulation of foreign commerce involved in immigration, a subject of regulation by the Federal government. The sheepdog cases are based upon the nature of the animals which makes it legal to regulate and limit their keeping and to encourage the raising of sheep. (Longyear v. Buck, 83 Mich. 236; Nicchia v. People, 254 U.S. 228, 230, 231.)
The case of Cooley v. Board of Wardens (12 How. [U.S.] 299) was decided upon the principle that the purpose of the statute was the regulation of navigation in the interest of public safety. The principles involved in those cases are not applicable in this case.
The tax or contribution is not against industry or employers. It is against a certain class of individuals and corporations who are engaged in employing wage earners. The term "industry" is a mere concept. The burden is placed not upon industry but on those of a certain class who are engaged in industry and upon *Page 26 others not so engaged. It is placed not alone upon those who have unemployed wage earners but also upon those who have no unemployed workers. No one questions the obligation and duty of the State. That question is not involved. The question here involved is whether the State may place that burden upon a certain class of individuals and corporations for the benefit of another class for whose condition they are in no way responsible.
If the statute is unconstitutional in its main features, no part of the act can be sustained. We cannot rewrite the statute.
So much of the judgments as were appealed from by W.H.H. Chamberlin, Inc., and E.C. Stearns Co. should be reversed, without costs, and so much of the said judgments as were appealed from by the defendants therein should be affirmed, without costs, and the plaintiff's motions for judgment on the pleadings granted, without costs. The judgment in the action brought by Associated Industries of New York State, Inc., should be affirmed, without costs and its motion for judgment on the pleadings granted, without costs.
LEHMAN, CROUCH, LOUGHRAN and FINCH, JJ., concur with CRANE, Ch. J.; HUBBS, J., dissents in opinion in which O'BRIEN, J., concurs.
Judgment accordingly. *Page 27