(dissenting).
I respectfully dissent.
SDCL 61-6-19 is very unique. A researcher cannot find another statute like it in the United States. Therefore, we must decide this case by employing statutory construction of this specific and very unique statute.
SDCL 61-6-19 provides (which is the statute under construction but is not recited in the majority opinion):
Benefits not payable for unemployment caused by labor dispute — Exceptions. An individual is not entitled to any benefits for any week with respect to which the secretary finds that his total or partial unemployment is due to a labor dispute at the factory, establishment, or other premises at which he is or was last employed, provided that this section does not apply if it is shown to the satisfaction of the department that:
*147(1) He is not participating in or financing or directly interested in the labor dispute; and
(2) He does not belong to a grade or class of workers of which, immediately before the commencement of the dispute, there were members employed at the premises at which the dispute occurs, any of whom are participating in or financing or directly interested in the dispute.
(3) He is locked out by his employer. If in any case separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each department shall, for the purpose of this section, be considered a separate factory, establishment or other premises. (Emphasis supplied). The Department of Labor disqualified
claimants from benefits between May 1, 1987 through November 4, 1987, because a labor dispute caused the unemployment. That dispute is not before this Court. After the picket line was removed on November 4, 1987, the Claimants unconditionally offered to return to work. However, Mor-rell had to keep private enterprise flowing. Morrell had to keep the plant alive. Mor-rell had to save the plant and its super structure. If it did not, the Claimants would have no jobs to which they could return. Replacements were hired as “permanent replacement workers.” It was either close the Sioux Falls plant or hire replacements. Reference is made to John Morrell & Co. v. Local 304A UFCW et. al., No 86-4126, 86-4135 (DSD Mar. 14, 1988) in the South Dakota Federal District Court. Said case adjudicated that the strike engaged in by the claimants was a strike prohibited by the written agreement of Morrell and the Union, which included a “no-strike” provision. Damages were awarded to Morrell for the Union’s breach. This lawsuit is spawned by hundreds of former striking workers who filed unemployment claims. Some 600 strikers were denied benefits “due to a labor dispute.” It was determined that not “until the labor dispute ended” were they eligible to receive unemployment benefits.
After the November 4, 1987, unconditional offer to return to work, there were more than 1,000 strikers who began to file either new or additional claims for unemployment benefits. Morrell did return illegal strikers to work on a “senior-qualified basis”; not all could be returned to work because there were jobs filled by replacement workers.
The Department of Labor ruled that these 1,000 strikers (and more) (1) Were not discharged for misconduct; (2) Did not voluntarily quit; and (3) After November 4, 1987, were not unemployed due to a labor dispute. I disagree with the Department of Labor and also the circuit court’s decision affirming the Department of Labor.
SDCL 61-6-19 disqualifies unemployment compensation where partial unemployment is due to a labor dispute. This language was created by an amendment in the State Legislature in 1986. It is a recent amendment and we should pay heed to it. We must determine the cause of the unemployment under our unique statute. The National Labor Relations Board refused to issue a complaint against Morrell. We may take judicial notice thereof. See, generally, State v. Aspen, 412 N.W.2d 881 (S.D.1987); Alexander v. Solem, 383 N.W.2d 486, 489 (S.D.1986); 31 C.J.S. Evidence § 50(2) (1964). Said Board determined that the May 1, 1987, strike by Claimants was an “economic strike.” There is no doubt that the Claimants walked off their jobs by virtue of a strike on May 1, 1987. A South Dakota federal jury found such action to be an open violation of a no-strike provision in the collective bargaining agreement then in force.
Morrell, attempting to keep the plant open to avoid financial disaster, hired replacement workers. Claimants could have worked but refused to work. The National Relations Board ruled that Morrell lawfully utilized correct rehiring procedures. Aspen, Alexander, id.
These Claimants were unemployed “due to” a labor dispute which they, themselves, initiated in express violation of their written word.
*148This State enacted, in 1936, the Unemployment Compensation Law. The intent was to establish reserves “for the benefit of persons unemployed through no fault of their own” and to protect against the hazards of “involuntary unemployment.” Only by denying Claimants these unemployment compensation checks, can and will the general policy of the State Legislature be implemented.
Our state law does not disqualify where unemployment is “due to a labor dispute in active progress.” Rather, our statute disqualifies unemployment where it is “due to a labor dispute.”
The circuit court erred in analyzing five foreign courts’ “active progress” thesis, throughout our nation. Those five courts’ determination was that the strike terminated on the day the offer to return to work was made. After all, these courts reasoned, if the strike terminated, the cause of the unemployment from that day forward could not be a labor dispute in active progress. These courts were caught up with a theory of “active progress.” They have their statutes to consider; we have ours. They determined that the labor dispute was no longer “in active progress” because the Claimants had offered to return to work. Thus, the cause of the unemployment was something other than a labor dispute in active progress. We have no “active progress” statute or theory or similar public policy in this state. Therefore, those five cases are inapposite.
Had the Claimants not put into motion, by their own actions, the chain of events which occurred, today those Claimants would still be working at Morrell. There is testimony from the Claimants themselves that they simply are not working because of their participation in the unlawful labor dispute which they instituted. And now confirmed, in law, by a federal judgment.
We must apply legislative enactments as written. In Petition of Famous Brands, Inc., 347 N.W.2d 882 (S.D.1984). The purpose of unemployment compensation is to relieve the monetary distress of unemployment, not to pay people who refuse to work when a job is before them and their employer has provided a place to work. This is not this writer’s philosophy; it is the spiritual pronouncement of our State Legislature. It is not my role to determine the equities between the employer and the employees; rather, it is to adjudicate, under the facts, the eligibility of unemployment compensation under the terms of South Dakota’s statutes. This is a dangerous decision to the Unemployment Compensation Fund for it clearly establishes a precedent which approves a violation of a contractual agreement and perforce approves of unemployment compensation benefits. Thus, it is a total disregard of the specific law of this state. Clearly, the unemployment was “due to a labor dispute.” No rubbing or scrubbing can change that fact. Common sense dictates that Claimants should not receive unemployment compensation at the expense of their employer when they voluntarily walked off their jobs in violation of their written contract.
HOW DID IT ALL BEGIN?
For each ending, there is always a creation, or beginning. This entire matter arose when a sister Union (Local 1142), which had members employed at Morrell’s plant in Sioux City, Iowa, engaged in a tremendous dispute with Morrell over wages and working conditions at the Sioux City plant. Members of the Sioux City Local implanted their Iowa strife into South Dakota soil by creating a picket line at Morrell’s plant at Sioux Falls. Violence ensued. South Dakota citizens who tried to cross the picket line were assaulted. Violence ceased after an injunction was issued by the Second Judicial Court against the Sioux Falls Local. In fact, the Union was fined for contempt for failure to obey the injunction. Here, a contract is more honored in its breach, than its observance. To me, that’s bad justice. Therefore, I dissent.