There is a motion for rehearing. Briefs have been filed by the parties. A brief amicus curiae is also filed. The complaint of these briefs mainly is in effect that the opinion holds that only the compensation of such employees as are eligible to unemployment compensation should be included in the basis for computation of the employer's contributions to the fund accumulated for paying such compensation. While there is no direct statement to that effect, we so intimated in stating in the original opinion, ante, p. 171, 7 N.W.2d 580, that the act "contemplates and covers only those who were under a continuing contract of employment or to be employed through successive weeks." That only such persons were at the time *Page 173a involved entitled to unemployment compensation appears from sec. 108.04(9)(a), Stats. 1939, but on reconsideration it does not appear to us to follow from this that the compensation paid to them was not to be included in the pay roll used as basis of the computation of the unemployment contributions of the employer.
We also conclude on reconsideration that the holding of the opinion that the musicians were not employees of the plaintiff is incorrect. This holding was made upon a false assumption. That assumption was that the decision in WisconsinBridge Iron Co. v. Industrial Comm. 233 Wis. 467,290 N.W. 199, rules the instant case because by that decision the musicians would be employees of the leaders of the orchestra of which they were a part. In the Wisconsin BridgeIron Co. Case we applied the common-law conception of the independent contractor and under that conception held that Drews was a subcontractor and therefore an independent contractor and the applicants for unemployment compensation were his employees and not employees of the WisconsinBridge Iron Company.
But the instant case is governed by the statutes of 1939. Those statutes contain sub. (21) of sec. 108.02, not referred to in the briefs and not noticed by us which reads:
"Undefined terms. Any word or phrase used in this chapter not specifically defined herein shall be interpreted in accordance with the common and approved usage thereof and in accordance with other accepted rules of statutory construction. No legislative enactment shall control the meaning or interpretation of any such word or phrase, unless such enactment specifically refers to this chapter or is specifically referred to in this chapter."
This subsection was not in the 1937 statutes. By it we are prevented from considering, as we might under the 1937 statute, statutes then existing as controlling the meaning of the term "employer." The meaning of that term in the 1937 statute was controlled by the 1935 statutes because the 1937 *Page 173b statutes defined the term as a person who was such under the statutes of 1935, and under sec. 108.02(d), Stats. 1935, an employer of a subcontractor who was himself subject to the act was not an employer of the employees of the subcontractor. By the last sentence of sub. (21) of sec. 108.02,supra, we are precluded from going back to the 1937 or 1935 statutes to determine whether the plaintiff was the employer of the musicians. Considering only the definitions of the 1939 statutes, we are of opinion that the plaintiff was an employer of the musicians under the definitions of those statutes as well as that the compensation of persons not entitled to unemployment compensation should be included in computing the employer's unemployment contributions. The controlling statutory provisions besides said sub. (21) are as follows:
Sec. 108.02(3): "`Employee' means any individual who is or has been employed by an `employer' and in an `employment' both subject to this chapter."
Sec. 108.02(3m): See the original opinion, ante, p. 170, 7 N.W.2d 580.
By sec. 108.02(4)(a), (b) an employer is a person who was subject to the act under the statutes of 1937 or any other person who employed eight or more persons for eighteen weeks in 1937.
By sec. 108.02(6) "Wages" means "every form of remuneration payable . . . to an individual for personal services. . . ."
By sec. 108.18(1) employers shall contribute a specified percentage of their "pay roll."
By sec. 108.02(8) "pay roll" includes "all wages payable for a given period . . . to the . . . employees for their `employment.'. . ."
Taking sub. (3m), supra, as it reads, and we finally conclude that we must, under the other provisions above noted the judgment of the circuit court must be affirmed. *Page 174
As the briefs filed on the motion for rehearing cover everything that could be presented on reargument, reargument would serve no useful purpose. The motion for rehearing is therefore denied, but the mandate filed will be vacated and another substituted.
The brief amicus curiae filed on the original hearing sufficiently covered the issues on the appeal. It comprised twenty pages and was long enough. The costs to the respondent on the appeal for printing the brief will therefore be limited to that number of pages. No costs will be allowed on the motion for rehearing.
By the Court. — The original mandate is vacated. The judgment of the circuit court is affirmed. No costs are allowed on the motion for rehearing. The costs of the appeal taxed for printing of the brief allowed the respondent will be limited to twenty pages.