(dissenting) :
In connection with the determination of whether a timely appeal was taken, we disagree with the conclusion reached by the majority. Involved is an interpretation of § 59-9-6(b), N.M.S.A.1953, and, in particular, that part which is italicized below:
“(a) * * *
“(b) Initial Determination. A representative designated by the commission, and hereinafter referred to as a deputy, shall promptly examine the claim and, on the basis of the facts found by him, shall either determine whether or not such claim is valid, and if valid, the week with respect to which benefits shall commence, the weekly benefit amount payable and the maximum duration thereof, or shall refer such claim or any question involved therein to an appeal tribunal or to the commission, which shall make its determinations with respect thereto in accordance with the procedure described in subsection (c) of this section, except that in any case in which the payment or denial of benefits will be determined by the provisions of section 5(d) (sec. 57-805(d) [59-9-5(b)D of this act, the deputy shall promptly transmit his full finding of fact with respect to that subsection to the commission, which, on the basis of the evidence submitted and stick additional evidence as it may require, shall affirm, modify, or set aside such findings of fact and transmit to the deputy a decision upon the issues involved under that subsection. The deputy shall promptly notify the claimant and any other interested party of the decision and the reasons therefor. Unless the claimant or any such interested party, within fifteen (IS) calendar days after the date of notification or mailing of such decision, files an appeal from such decision, such decision shall be final and benefits shall be paid or denied in accordance therewith. If an appeal is duly filed, benefits with respect to the period prior to the final determination of the commission, shall be paid only after such determination: Provided, That if an appeal tribunal affirms a decision of a deputy, or the commission affirms a decision of an appeal tribunal, allowing benefits, such benefits shall be paid regardless of any appeal which may thereafter be taken, but if such decision is finally reversed, no employer’s account shall be charged with benefits so paid.’r
The language of the section leaves much to be desired. However, the only issue necessary to be resolved in this case is as to the nature of the notification by the deputy of the determination of the issues which arose when problems incident to § 59-9-5(d), supra, were first presented and ruled on by the commission. Section 59-9-6 (b), quoted above, provides for an initial determination from which an appeal to an appeal tribunal must be taken within fifteen days. Was the commission’s action thereon a commission decision from which an appeal to the courts is provided in § 59-9-6(h), supra? We do not agree with the majority that an appeal to the courts is required from the decision in this case. Nothing was involved except a transmittal by the deputy to the commission of his findings of fact concerning possible disqualifications under § 59-9-5 (d), which findings of fact were in turn ruled on by the commission, and the decision reached transmitted to the deputy who then notified the claimants and other interested parties of the decision and the reasons therefor, as provided in § 59-9-6 (b). That this decision is not the decision of the commission required to be appealed to the courts within fifteen days under § 59-9-6(h), supra, seems to us to be clear for a number of reasons.
First, the subsection heading describes the proceedings as the “Initial Determination.” Ordinarily, appeals are not taken piecemeal, or until all administrative procedures are exhausted. To so interpret this section, in our view, would result in a manifestly time-consuming and wasteful procedure. We cannot believe that the legislature intended such an outcome.
Second, no hearing where the interested parties may be heard is required for the initial determination. The section provides only that the deputy transmit his findings concerning rights to benefits under § 59-9-5 (d), and the commission, “on the basis of the evidence submitted and such additional evidence as it may require” shall then act. While admittedly the commission could hold a hearing where the parties could be present and allowed to submit evidence and arguments, none is provided for or required. To our minds, to interpret the section to make the decision under the facts here a final decision from which an appeal to the courts is required for a review, raises serious questions of constitutionality because there would be a total absence of due process in such a procedure. Compare Clovis National Bank v. Callaway, 69 N.M. 119, 364 P.2d 748 (1961). That a hearing could be had does not alter the fact that none is required. As said in State ex rel. Holmes v. Board of Finance, 69 N. M. 430, 367 P.2d 925 (1961), “It is not what has been done but what can be done under a statute that detei-mines its constitutionality.”
Third, reason and common sense tell us that it was never intended that a decision by the commission concerning the payment or denial of benefits as affected by § 59-9-5 (d) should be the full basis for a final appealable decision. This is particularly true where the only hearing was one before the deputy on this- limited portion of possible issues that might have been presented, and no record of the hearing is available.
Fourth, the history of the provision supports our conclusion. The section is unchanged in any material respect from the form in which it was adopted in 1936 (ch. 1, § 6, N.M.S.L.1936). An examination of the laws of Arizona (ch. 13, § 6, Ariz. S.L.1936) and of Colorado (ch. 1, § 6, Colo. 3rd Ex.Sess.1936) discloses that in 1936 unemployment compensation laws adopted in those states contained a provision identical with our § 59-9-6 (b). It is self-evident the laws adopted by these states and by us, all came from the same source. However, in 1937, Arizona (ch. 68, § 4, Ariz.S.L.1937) and, in 1939, Colorado (ch. 167A, § 6, Colo.Stat.Ann.1939, pock, supp.) amended the section wherein there was added after the language of the sentence italicized above, the words “which shall be deemed to be the decision of the deputy.” These words were never added to our statute. However, we see nothing in the added words except an attempt at clarification. We would hazard the opinion that the question here argued had arisen in other states because of the uncertainty of the language originally employed, and that the same source from which the original act emanated then suggested a change in order that the intention be made more certain. We see in the new words added no indication that a change was intended thereby. To the contrary, we are satisfied that no other interpretation is reasonable, even in the absence of the clarifying words. To our minds, if the New Mexico legislature had adopted the change, the present uncertainty and argument would have been avoided, but the meaning of the original enactment would be unchanged.
Fifth, and finally, although the Utah statute specifically provided that the decision was a “decision of the deputy”— the language omitted from our statute—the discussion and rationale in National Tunnel & Mines Co. v. Industrial Commission, 99 Utah 39, 102 P.2d 508 (1940), to our minds supports the reasoning and conclusion advanced by us. No decision passing on the language as it appears in our statute has come to our attention. However, see Johnson v. Pratt, 200 S.C. 315, 20 S.E.2d 865 (1942), where a right to proceed as was here attempted was not questioned. Admittedly, the South Carolina statute and our own are not identical, but they are very comparable.
The majority having come to a conclusion contrary to that which we consider correct, and not having examined the appeal on its merits, we disagree and respectfully dissent.