(dissenting).
I cannot agree that an employee, by virtue of his membership in a union which has entered into a pension agreement with his employer, has waived his rights to benefits under the unemployment compensation provisions of M. S. A. c. 268. The provisions of this chapter should be liberally construed so as to further its remedial and beneficent purposes. Nordling v. Ford Motor Co. 231 Minn. 68, 42 N. W. (2d) 576, 28 A. L. R. (2d) 272. The social policies which prompted the enactment of this legislation are set forth in § 268.03.
The majority opinion has adopted the narrower construction as expressed in Campbell Soup Co. v. Board of Review, 24 N. J. Super. 311, 94 A. (2d) 514, which decision was reversed by the Supreme Court of New Jersey in Campbell Soup Co. v. Board of Review, 13 N. J. 431, 100 A. (2d) 287. The lower court had held that an employee could not have both the benefits of pension agreement and unemployment legislation — that the pension agreement disqualified the employee from claiming unemployment benefits. On appeal, the Supreme Court of New Jersey reversed the lower court, holding that an employee does not “voluntarily” discontinue his employment where the decision to discontinue is not his and his alone to make. The issues which involve a construction of corresponding New Jersey unemployment compensation statutes are fully discussed in that case. It is my view that the conclusions reached in that decision are sound and should be adopted by this court.
A pension agreement entered into between an employer and its union should not be considered as a substitute for benefits created by social legislation to which all employees are entitled. It is a contractual obligation which flows from considerations separate and apart from the minimal benefits provided by law.
It is my view that the majority opinion wrongly construes the pension agreement as containing, by implication, a provision which is clearly invalid under the law. It seems to me that this conclusion must neces*74sarily follow from the provisions of § 268.17 which prohibit the waiver or release of rights to benefits under c. 268. This view is not inconsonant with Jackson v. Minneapolis-Honeywell Regulator Co. 234 Minn. 52, 62, 47 N. W. (2d) 449, 454, where the employee’s enforced leave was a condition of his employment under an agreement for paid vacations. As that decision points out, “There is an important distinction between an agreement for a leave or vacation shutdown which gives rise to no unemployment compensation benefits and a collusive agreement that unemployment compensation benefits be waived.” In the Jackson case, the relation of the employer and employee was not terminated. In the case before us, the termination is final. Here the pension contract determines in effect that the employee is no longer qualified for his employment. The construction by the majority denies to the employee the benefits which have accrued to him under the law over a period of many years of service.
I am of the view that where, as here, retirement is enforced by the. provisions of a bilateral contract in which the employer has joined, such retirement is not “voluntary” within the meaning of the statute so as to deprive employee of unemployment compensation.
For the foregoing reasons I respectfully dissent.
On Appeal from Clerk’s Taxation of Costs.
On April 18, 1958, the following opinion was filed:
Per Curiam.The commissioner of employment security has appealed from the clerk’s taxation of costs against him upon the ground that he was acting in his sovereign capacity as respondent in this appeal by seeking to have relator’s experience-rating account charged with benefits for the claimants herein and thus increasing the taxes which would thereby become due to the state. If the commissioner had sought to collect revenues to which the state was undoubtedly entitled, there would be no question that he was acting in his sovereign capacity and would be immune from the taxation of costs.30 However he was seeking not to *75collect revenues which were due and owing but rather to determine whether or not these taxes were to be imposed at all. Therefore the case must be dealt with as one in which a private citizen challenges state action under a statute. We have held that in such situations costs may not be taxed against the state when the other party prevails.31 These instances are to be distinguished from the cases where the state itself is in court in the same capacity as any private party so that costs may be taxed against it.32
The clerk’s taxation of costs must be set aside.
Northern Nat. Bank v. Northern Minnesota Nat. Bank, 244 Minn. 202, 70 N. W. (2d) 118.
Mushel v. Schulz, 139 Minn. 234, 166 N. W. 179.
See, Bingenheimer v. Diamond Iron Min. Co. 237 Minn. 332, 54 N. W. (2d) 912.