(dissenting). The judgment of the Appellate Division should, I believe, be affirmed throughout.
Benefits were charged to respondent’s account by .the Unemployment Compensation Commission for the years 1939 to 1941 inclusive in the amount of $93,000 where respondent was the last employer and of $3,800 where respondent was the employer in the base year.- Those figures do not represent the judgment; they are simply important factors in determining plaintiff’s rate of contribution to the general fund. It was conceded before the Appellate Division and is conceded before us that- the item of $3,800 was improperly included. Eor accuracy in the record and for a precise disposition of the issues there should, therefore, be no disturbance of the striking of that item by the Appellate Division.
My vote to affirm the judgment in the Appellate Division in setting aside the remainder of the decision by the Commission is substantially upon the grounds stated in the opinion written by Judge Colie for the Appellate Division and reported in 9 N. J. Super. 101.
The statute as it then was (B. S. 43:21-6(5)) required that the executive director, by his designee, should determine whether a claim for benefits was valid and, if valid, when the payments should begin, the weekly amount payable and the maximum duration thereof, and should promptly notify the claimant and any other interested party of the decision and the reasons therefor. The Commission was not authorized to pay benefits, until such notice had been given and-the designated period for appeal had elapsed. The last employér was, of course, an interested party; none more so, because the *554charge would be made against his account. The deputy originally recognized that obligation and maintained the practice of sending to the employer a notice on Eorm B-ll that the worker had made claim for benefits, that the records of the Commission indicated that the claimant was eligible for benefits in a named amount and that if the employer had any objections to payment of the claim he should check appropriate items in the form and return, and along with that notice, and in effect as a part thereof, the deputy sent a letter stating, inter alia, that "the purpose of the notice is to inform you that the Commission has declared the claimant to be eligible for benefits in the amount as indicated, and to allow you to present to the Commission any information in your possession which would make the claimant ineligible for benefits.” The information thus given measurably complied with the statute; it notified the employer that the Commission had considered and granted the claim in the amount stated on Form B-ll. The importance of that information lay in the fact that the claim could have been invalidated by incidents which occurred after the worker had left the employer, about which the employer would have no information but upon which it was the deputy’s duty to find the facts and so determine the validity of the claim. Such incidents, for instance, could be the claimant’s availability for work, pregnancy if a woman, the claimant’s removal from the labor market, refusal to take a comparable job, receipt of old age pension, conditions which could depend upon facts wholly foreign, to, or subsequent to, the employer’s record. That the employer had no adverse information to communicate did not signify that there were no disentitling facts or that the employer was not interested in being notified of the decision. I find no concession by the employer that the benefits in question were valid and properly allowed; the concession was that the employer’s record did not disclose invalidation. The Commission could not either by rule or regulation, or by a procedure adopted by its officers and employees, nullify a statutory requirement; it could not *555place upon an employer the burden of doing that which the ■statute imposed upon the Commission. And it is not for us to hold that the employer was obliged, before receiving notice of the decision, to make such inquiry into facts outside his knowledge as would' enable him to determine, in advance, what his course would be with respect to an appeal.
Por some reason the office changed Porm B-ll so that it no longer contained the amount of benefits for which the worker was eligible and discontinued sending the letter or any substitute form of notification that the claim had been allowed. Indeed there is no satisfying proof that the office followed the practice of making a determination of validity unless the issue of a compensation check is, ipso facto, to be accepted as such; and even notice of the payment of the ■check was not given the employer. All, then, that the employer knew was that a claim had been presented; it was left in complete ignorance of the finding thereon. I do not •consider notice of successive weekly payments so important as an initial notice that the claim was determined to be valid. The omission was clearly in violation of the statute, and that which was omitted was, in my opinion, a necessary preliminary to a charge against the employer’s account for the purpose of fixing the employer’s rate of contribution to the fund. The workers to whom unemployment benefits were paid are not concerned with this proceeding.
That the requirement is considered vital by the Legislature is apparent from the continued direction in even more positive ierms, as by ch. 308, P. L. 1945, in amending the paragraph ■designated above, “The deputy shall promptly notify the claimant, the most recent employing unit and all employers in the base year of the decision and the reasons therefor,” and by ch. 167, P. L. 1950 (B. 8. 43 :21-6 (6) (2)), “Whenever a determination of eligibility shall be made with respect to the first-week of the benefit year for which benefits are •claimed, the claimant, the last employing unit and all employers in the base year shall be promptly notified of such ■determination.” Provisions enacted subsequent to the period *556in question do not, of course, vary the obligation of the Commission or of its officers, but the statutory citations indicate the importance which the Legislature attributes to the making of a determination and the giving of immediate notice thereof to the employer.
Inasmuch as nothing answering to a judicial or quasi-judicial determination was made, and no notice of validity or allowance was given, I can see nothing else than that, the plaintiff was deprived of its right of appeal made, by the statute, to depend upon the making of the decision and the giving of notice thereof.
Aokebson, J., concurs herein.
For reversal—Justices Hehee, Oliphant and Burling—3.
For affirmance—Justices Case and Ackekson—2.