dissenting. I dissent because I believe the majority has misinterpreted the employment security act. The part of the act in question is properly stated by the majority but, nevertheless, I wish to repeat it at this point:
. . . the term “employment” does not apply to service performed:
(i) in the employ of (I) a church or convention or association of churches, or (II) an organization which is operated primarily for religious purposes [my italics] and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches ... (Ark. Stat. Ann. § 81-1103 (i) (1) (D) (Repl. 1976).)
It seems to me the majority holds that Clauses I and II are exactly the same in application. In other words, the majority’s holding is that Clause II means any organization which is operated, supervised, controlled or principally supported by a church, convention or association of churches is exempt. This renders useless the words “ . . . which is operated principally for religious purposes ...” The majority has emphasized the two words “an organization” which is merely a descriptive phrase and has nothing to do with the intent involved. This section is designed to exempt the classifications stated in Clause I above and those in Clause II so long as they are operated principally for religious purposes.
Under the holding of the majority it is quite possible that a church could own a hog farm, furniture factory, ammunition supply depot, or chain of grocery stores and still be exempt from paying employment security taxes. I cannot bring myself to believe that such was the legislative intention when this was enacted. Theoretically, the churches, conventions, associations and other religious organizations could monopolize the employment market and entirely defeat the purposes of unemployment benefits.
The National Baptist Convention U.S.A., Inc. has its headquarters in Chicago, Illinois. It consists of 7,000 churches. One of the churches is not the Hot Springs Hotel and Bath House. In fact, the convention owns the bath house in Hot Springs which is in direct competition with other bath houses at least 90% of the time. If there is any religious purpose connected with the National Baptist Hotel and Bath House, other than the occasional meetings attended by church members, it is not revealed in the record. Admittedly, the religious use of the bath house amounts to less than 10% of the total use of the facility. None of the funds received from the operation of this business is deposited to the credit of the National Baptist Convention U.S.A., Inc. To the contrary, the funds are deposited either to the account of the National Baptist Sanitarium or National Baptist Hotel. It is from these last mentioned funds that the employees are paid. No employees are paid by the National Baptist Convention U.S.A., Inc. The funds from which they are paid are generated by a business operated in head-to-head competition with other commercial businesses in Hot Springs, Arkansas.
In my opinion, when a church ventures outside its religious purposes and enters into the private business sector it should be guided by and subject to the same laws as others engaged in the same type business. If one person was employed by the National Baptist Bath House and another person by a neighboring bath house, each performing the same type of work until discharged through no fault of their own, the one could draw unemployment benefits but the one who had been employed by the Baptist Bath House could not draw benefits. This cannot conform to the intent of the legislative enactments as embodied in the plain language of the employment security act.
I cannot find any evidence in the record that the bath house is “operated principally for religious purposes,” which is what it would take to convince me that the enterprise should be exempted. Therefore, I would reverse the holding of the Court of Appeals and reinstate the circuit court’s judgment affirming the Employment Security Division.