In this case we have only a procedural question to determine. The provisions of the unemployment compensation act necessary to be considered are not ambiguous, so no question of interpretation is involved. The controversy between the department and the appellant is over the order in which the various procedural *Page 20 steps necessary to determine whether an unemployed workman is entitled to be paid benefits under the act and the amount thereof shall be taken. The act provides various procedural steps and authorizes others to be fixed by regulations prescribed by the commissioner. The whole tenor of the act is to provide a plain, adequate, and speedy method whereby beneficiaries of unemployment insurance may be accorded the relief contemplated by the act at a time of immediate necessity, and if the procedure outlined by it and the regulations prescribed by the commission are followed, this result may be accomplished.
My disagreement with the majority opinion is that it outlines an order of procedure different from what the act and regulations provide, which, if followed, may, as contended by the department, seriously impede the administration of the act and tend to prevent the accomplishment of its purposes, and that it asserts as a basis for the conclusion reached that the claim made by Jullin was invalid on its face, which I do not think is borne out by the record. It may be that the procedural method outlined in the majority opinion would make a better piece of legislation from the standpoint of the employer, but the procedure to be followed and the order in which the successive steps must be taken is for the legislature and not for the courts to determine, even though it may appear to them that the law as framed could be improved upon or may operate unfairly to someone. When a law is found to be constitutional and requires no interpretation to make it effective, there is nothing to be done by the courts but to apply it as it is written to the various factual situations as they arise.
The majority opinion adopts the view that the department must find and conclude that a claimant is entitled to benefits before his base and benefit years can be computed and fixed, which is just opposite to what the act provides.
When a workman ceases to be employed, his first act is to make a claim for benefits. Section 6 (a) of the act provides: "Claims for benefits shall be made in accordance with such regulations as the Commissioner shall prescribe." The commissioner has prescribed that an application for *Page 21 benefits shall be made in writing at an employment office on such forms as shall be provided by the commissioner. The regulation does not prescribe how soon after unemployment commences a claim must be made. The claim for benefits includes claims for waiting period time. After the first claim for benefits is made, the claimant must file a continued claim for every week thereafter with respect to which he claims benefits. As a condition precedent to the application for benefits, the unemployed workman must register for work at an employment office and must re-register during every calendar week thereafter with respect to which he shall file a claim for benefits or waiting period time.
Jullin did all of this, except he did not reregister or make any certification for either waiting credit or benefits after making his initial claim. He signed the initial claim, but apparently was not required to sign the claim-record card kept by the department as a part of its records. On this record it is indicated on a line numbered 26: "claimant's signature to the above certification," but no space is provided for the claimant to sign. In any event, the failure of the claimant to sign the claim-record card is not jurisdictional and would not affect the validity of the claim he had previously made and signed. When a claim is filed, then Rem. Supp. 1943, § 9998-106b [P.P.C. § 923-21] must be followed. This is set out in full in the majority opinion. In substance, it is this: A representative designated by the commissioner shall take the claim. The unemployment compensation division must promptly do the following things: (1) Make an initial determination with respect to whether or not benefits are potentially payable; (2) determine the weekly benefit amount payable; (3) determine the maximum amount of benefits potentially payable; (4) notify the claimant, his most recently employing unit as stated by him, and any other interested party, of the making of the initial determination. This section of the act provides that:
"The initial determination shall fix the general conditions under which benefits shall be paid during any period of unemployment occurring within the ensuing benefit year." *Page 22
The section further provides that one who has received an initial determination finding that benefits are potentially payable to him, shall, during his benefit year, receive benefits in accordance with such initial determination with respect to any week as to which he meets the benefit eligibility conditions provided by § 4 of the act, unless it is found that he is disqualified by the provisions of § 5 of the act. It seems quite clear that, in order to get this far, the division must necessarily compute the base year and the benefit year as defined by the act. The act does not provide by express terms nor by any fair implication that the division must make a final determination that the claimant is then eligible for benefits. This is something the division must determine before the claimant can be paid any benefits. But the whole idea seems to be that the claimant starts the departmental machinery in motion when he makes a claim, and it is then that the base and benefit years are to be fixed. If it is later found the claimant is ineligible for benefits, he does not receive any; but his base and benefit years are fixed so that, if at any time within the benefit year he becomes eligible for benefits, they can be promptly determined and paid.
It seems to me that if the legislature intended to have eligibility for benefits finally determined as a first preliminary step before computing the base and benefit years, it would have plainly so provided, but it did not do so. On the contrary, it clearly outlined a procedure by which the base and benefit years were to be computed before the question of eligibility was to be finally determined. There would be no occasion for the use of the terms "initial determination" and "potential benefits" if it were otherwise.
I think all of this is further borne out by the appeal procedure which is provided by the act. When the initial determination is made, the employer may file an appeal therefrom with the commissioner. This appeal may have a two-fold aspect. If the appeal is taken with respect to the claim itself, the act provides that benefits shall not be paid to the claimant prior to the final determination of the appeal. If, upon the initial determination, benefits are allowed, but an *Page 23 appeal is filed relative to the maximum amount of benefits potentially payable or the weekly benefit amount, benefits may, nevertheless, be paid to the extent of the minimum potential benefit amount or weekly benefit amount which the division of unemployment compensation or any party to the appeal shall assert is due the claimant. It thus appears that, if the employer feels that the claimant is not eligible for benefits, he may take an appeal and thus prevent any payment for benefits to the claimant until the appeal is finally determined. When the appeal is taken, the question of eligibility is determined on the appeal. If, however, the employer considers the claimant eligible when the claim is filed, but wishes to contest the maximum amount of benefits to be paid, he may do so. This kind of an appeal does not prevent the payment of benefits, but limits them as above stated.
There is nothing in the act which provides that, if it shall be found that the claimant is not entitled to benefits, the prior action of the division in computing the base and benefit years becomes invalid or that such action shall be disturbed in any way, as concluded by the trial court. If, after a claim for benefits is made, it later is determined that he either was or is not eligible therefor, nevertheless his base and benefit years have been fixed, so that benefits may be paid whenever he becomes eligible during the benefit year, and this process does not have to be repeated each time he makes a claim for benefits. It may be that the amount of a claimant's compensation may be different according to the time or times covered by the base year, and the several employers of an employee might be differently affected according as the base year may be computed, and this may afford an argument that the base year should not be computed until it is determined that a claimant is eligible for benefits; but all of this was for the legislature to determine, and we should not attempt to fix a rule not in accord with that prescribed by the legislature.
The division followed its regulations and the statute. It subsequently developed that Jullin was not eligible for benefits because he did not keep up his registration for *Page 24 employment. No benefits were paid to him. The division maintained its record of his base and benefit years for future use should the occasion arise. I find nothing in the act which justified the trial court on appeal in requiring the department to efface and nullify this record.
I am unable to find that the claim was invalid upon its face, as stated in the majority opinion. A copy of the claim is in the record. It is on a form prescribed by the commissioner. It contained all of the information required by him. It gave name and address of the claimant, the name of his last employer and the date on which he became unemployed. It stated that he was unemployed, that he was able to work, was available for work, and by it he registered for work. This claim was signed by the claimant. In the section of the act defining "benefit year," it is provided:
"Any claim for benefits made in accordance with § 6 (a) of this act shall be deemed to be a valid claim for the purposes of this section, if the individual has earned wages for employment by employers as provided in § 4 (e) of this act."
In view of all of this, I am unable to concur in the view that the claim was invalid on its face. The claim was made on the form prescribed and met all of the requirements of the statute and the regulations prescribed by the department, and was sufficient to justify the department in proceeding to compute the base and benefit years.
In addition to this, it is well to note that the act does not provide for any review by the courts of the sufficiency of a claim for benefits, and I think it follows that such question is one exclusively for the department to determine. The right of a claimant to be awarded benefits is subject to judicial inquiry upon appeal, but not the sufficiency of the content of the claim made therefor.
The judgment should be reversed.
BLAKE and MALLERY, JJ., concur with GRADY, J. *Page 25
[En Banc. August 3, 1945.] PER CURIAM.
After the opinion in this case was filed, respondent presented its application to supplement the opinion, asking that the same be amended by an order fixing a reasonable fee for respondent's attorneys.
[7] The court thereafter, on the 6th day of July, 1945, entered its order fixing the attorneys' fee for respondent's counsel in the sum of $250, and then directed that the parties appear before the court, sitting En Banc, on the 17th day of July, 1945, to present their respective theories as to whether or not the attorneys' fee allowed should be paid out of the unemployment compensation administration fund.
And the matter having come on regularly before the court sitting En Banc on the day referred to, and the court having heard the argument of counsel for the respective parties, and having examined the briefs filed herein, it is the judgment of the court that compensation allowed to respondent's counsel above referred to for services rendered on the appeal of the above-entitled cause to this court is a proper charge against the unemployment compensation fund, and that the amount be paid out of that fund.
BLAKE and MALLERY, JJ., dissent.