dissenting:
The claimant filed his claim on April 9, 1952, and was paid unemployment compensation from that date to August 12, 1952. The employer was notified of the filing of the claim, and of certain actions thereon, by Department Forms B-6, B-6A and T-3. Form B-6 “required” *393the employer to complete and return the form if it knew “any reason” why the claim should not be paid, and advised the employer that the “claim may be considered payable unless this form is returned to the local office shown below within ten days from the date this claim is filed”, and unless reasons be shown why the claim should not be paid. Form T-3 “is actually a notice to the employer of a charge to his account” and, of course, potential notice that any future payments on that particular claim would be charged to its experience rating account. Form T-3 is mailed to the employer “any time a claim is filed indicating the claimant is entitled to benefits so far as a monetary determination is concerned”.
The employer ignored the receipt of Forms B-6 and B-6A and made no objections to payments and no appearance, except that it “drew up a separation notice and ran it off for them and returned it”. The “separation notice” so returned by the employer showed “the name of the individual, and the office in which the claim was filed, and the date we prepared the separation notice, the date of the termination, the day last worked, and the reason for his termination”.
After the appearance of the employer in August, 1952, the only objection raised by the employer, so far as the present controversy is concerned, went to the charge-ability of payments previously made to the employee to the experience rating account of the employer. The actual contention, and the only contention, of the employer is that its experience rating account should not be charged with the payments made to claimant, for the reason that it was not promptly notified of a decision on the claim by a deputy, as required by Section 4 of Article 7 of Chapter 21A of Michie’s 1955 Code of West Virginia.
In Horsman Dolls v. Unemployment Compensation Commission, 7 N. J. 541, 82A. 2d 177, certiorari denied 342 U. S. 890, 96 L. ed. 667, 72 S. Ct. 201, wherein a *394very similar, if not precisely the same, question was discussed, the Court said: “As respects the ‘decision’ to which the provision for notice has reference, and the significance of the phrase ‘other interested party,’ subsection 6(b) is not free from ambiguity. But we shall resolve the doubt in favor of notice. In this view, the failure of notice to the plaintiff employer of the deputy’s initial determination of the detached employee’s eligibility for benefits did not result in substantial prejudice to plaintiff which demands that his account for rate purposes be disburdened of the benefits lawfully paid to the detached employee because of seasonal unemployment. The want of notice of the initial determination, however informal the decision, did not serve to deprive plaintiff of such remedy by appeal as the statute gave him, for plaintiff concedes that its failure to respond to the notices B-ll was the entire absence of grounds of disqualification * * * The disburdening of plaintiff’s account of benefits thus lawfully paid would work serious detriment to the statutory policy of unemployment insurance without reparatory service to appellant. Administrative failures or deficiences cannot be made to serve the interests of one whose substantial rights have not been thereby invaded. The statute does not say that, for the purpose of computing the employer’s contribution rate, a failure of notice of the initial determination shall, in and of itself, work a disburdenment of the employer’s account of the benefits lawfully paid; and the corollary is that the employer cannot invoke the omission save as may be needed to repair the injury done to him * * * The special interest of the employer is the measurement of the payroll excise by the benefits paid; and he cannot complain of the want of due process if he is afforded a full hearing at some stage of the proceedings on the question of the validity of the charges to his account for benefits paid. The requirements of due process are satisfied if, after appropriate notice, the person charged with the excise be given an opportunity to be heard as to the validity and the amount of the levy at some point *395in the proceedings before the excise becomes irrevocably fixed * * * Laches and the principle of estoppel in pais serve to bar the relief sought. Plaintiff knew that benefits were being paid to the separated employees, and it was well aware that, in making these payments, the Commission relied upon its failure to make known grounds of disqualification in response to the notices B-ll. By plaintiff’s conduct, the Commission was led to believe that the claimants were under no disqualification, and acted accordingly. Plaintiff intended that its inaction be so interpreted, for that was the fact. Plaintiff cannot now in equity and good conscience demand that, for want of the notice of the initial determination, it be disburdened of the benefits so paid * * To the same effect is the holding in Todd Shipyards Corporation v. Texas Unemployment Compensation Commission,.... Texas...., 264 S. W. 2d 709.
The question raised should not be disposed of by simply saying that the wording of the statute is plain and that in effect it is mandatory. The enactment of unemployment security legislation, making provision against loss of income incident to involuntary unemployment, for the purpose of relieving the public generally of economic burdens, was primarily for a public purpose, but it was also for the personal benefit of the employee, to afford him living substance when not able to obtain work, and for the benefit of the employer, in enabling him to have valuable employees “stand-by” during times of business distress. The administration of such a policy should not be stymied by unnecessarily strict application of statutory provisions, especially at the instance of a party not injured. In the instant case, of what interest is it to the employer to have a written decision by the deputy, other than to be afforded an opportunity to appear and be heard? That, the employer in the instant case had. Having had sufficient notice through the department forms, why should the employer be permitted to take advantage of his own neglect, merely because some administrative step had not been timely taken by those *396charged with the administration of the act? The employer had full knowledge of such administrative policy and practices. Its employee and principal witness testified that “prior experience has taught me that even though we request a deputy’s decision we don’t get them, anyhow”. Moreover, the information conveyed to the employer, by the forms mentioned, that payments had been made to the employee and that the employer’s experience rating account had been or would be charged with such payments, was the equivalent of notice that a decision had been rendered, and was a substantial compliance with the applicable statutory provision.
Though the majority be correct in holding the notice insufficient, it is still in error, I think, in its holding, for the reason that the limitation fixed by the statute as to the time for an appearance would not commence to run until proper notice of the decision of the deputy. This being true, the employer in the instant case could have appeared at any time within the statutory period, after receipt of a proper notice, and defended its rights, even as to payments previously made to the employee. It is academic that a person not a party to a proceeding, even a court proceeding, is not bound by any action had therein. Moreover, in the course of the hearing before the board, the question was raised as to the availability of the employee involved, a question which would have probably determined the employer’s liablity on the merits, and counsel for the employer announced: “We are not going into that”; whereupon, Commissioner Walker advised: “I think we should go into that”. The employer having refused to have the matter of the availability of the employee considered, the board was not, of course, required to go further into the question. Thus, the employer was afforded, and the employer refused, the very right for which he now contends. Perhaps the best answer to the whole problem appears, in so far as the instant case is concerned, when it is pointed out that the majority completely ignores what amounted to an appearance by the employer when it filed the “separation *397notice” furnishing information as to “the reasons for his termination”, and other pertinent information.
Believing the reasoning of the Court in the opinion in the Horsman Dolls case to be sound and applicable, and being of the further views indicated, I respectfully dissent.