Dissenting Opinion
Gonas, J.I have conferred with my learned colleagues on this case which concerns the historic unemployment compensation legislation.
I cannot agree with the decision by the majority of the court. Whether or not the relationship of employer-employee exists is a fact question which is beyond our province. Questions of facts which are determined by the Liability Referee in this class of eases are binding upon us. Burns’ Ind. Stat. §52-1542 k (1961 Supp.) The Referee found specifically that the *193company retained the right to direct and control the performance of the truck drivers herein, involved. This finding is tantamount to the existence of the employer-employee relationship. In my view, the evidence sufficiently supports this finding.
Appellant testified as follows:
“Q. Even when your drivers, your employees, and the alleged independent contractors haul for Atkins, they are hauling on your Public Service Commission permit, is that correct ?”
“A. In the biggest part of the instance, yes. . . .”
From this and other testimony, the Liability Referee undoubtedly drew an inference that the hauling was done by the employees in question under the Public Service Commission Permit which was issued to the appellant. The record does not show that the employees in question own a permit. Therefore, the Liability Referee had a proper foundation for finding these workmen to be the employees of appellant.
Appellant, in his own testimony, further stated, that he received a check about the 15th of each month from a company with which he had contracted to perform certain services, and that he paid his employees, including the ones in dispute, from this check. This is further evidence that these workmen are employees of appellant. Thus, the employees in question should be treated as the other employees of the company for the purpose of the Employment Security Act. Burns’ Ind. Stat. §15-1532.
The majority opinion asserts that the evidence is susceptible to only one conclusion or inference. However, their conclusion is different from that reached by the Liability Referee, and I cannot concur in the conclusion reached by the majority. Besides, evidence *194merely serves as a basis for reasoning in this class of cases, and it is inevitable that inferences will be made of many facts without direct proof thereof.
The legislature intended, by enacting this statute that every employer contribute an amount to the Unemployment Fund based on the number of his employees in fact. Even prior to the days of Blackstone in England, and Kent in the United States, laws were intended to be uniformly applied and no member of any class was to be excepted. So it is with our Employment Security Act; all employers are bound to contribute, for the benefit of their employees, to the Unemployment Compensation Fund, unless specially exempted by our statutes.
In view of the intent of the legislature, and the purpose of this Act, we should permit no employer to give the appearance that he contributes his just share by the use of a subterfuge.
The majority opinion ignores the facts as found, and substitutes their judgment for that of the Liability Referee. Thus, an employer is permitted to escape contributing his statutory share into the Unemployment Fund.
I respect the findings made by the Liability Referee, and submit that his decision should be affirmed.
Note. — Reported in 180 N. E. 2d 549.