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In re Claim of Albertson

8 N.Y.2d 77 Court N.Y. Decision date 1960-05-26 English

Decision Majority — Chief Judge Desmond. · Dissent — Fuld, J. (dissenting). · Concurring — Van Voorhis, J. (concurring in part).

Contents

Majority

p. 77
In the Matter of the Claim of William Albertson, Respondent. Isador Lubin, as Industrial Commissioner, Appellant. In the Matter of Communist Party, U. S. A., et al., Respondents. Isador Lubin, as Industrial Commissioner, Appellant.
Argued March 28, 1960;
decided May 26, 1960.
p. 78
Louis J. Lefkowitz, Attorney-General (Julius L. Sackman, Paxton Blair and Samuel Stern of counsel), for appellant.
I. The Unemployment Insurance Appeal Board properly sustained the determination of the Industrial Commissioner suspending the registrations of the Communist Party, U. S. A., and the Communist Party of the State of New York, as employers under the New York Unemployment Insurance Law. II. The Industrial Commissioner has the power to suspend the registration of an employer under the Unemployment Insurance Law. (Matter of Electrolux Corp., 286 N. Y. 390 .) III. The lndustrial Commissioner was legally justified in suspending the registrations of the Communist Party, U, S. A., and the Communist Party of the State of New York, as employers within the meaning of the Unemployment Insurance Law. The suspension was justified by reason of the fact that both of the employers constitute a criminal conspiracy, the principal object of which is the overthrow of the Government of the United States and the Government of the State of New York by force and violence. (Matter of McKay, 71 F. Supp. 397 ; National Maritime Union of America v. Herzog, 78 F. Supp. 146 , 334 U. S. 854 ; Appeal of Albert, 372 Pa. St. 13 ; Weinstock v. Ladisky, 197 Misc. 859 ; Matter of Daniman v. Board of Educ. of City of N. Y., 306 N. Y. 532 ; Matter of Lerner v. Casey, 2 N Y 2d 355 ; Carlson v. Landon, 187 F. 2d 991 , 342 U. S. 524 ; Martinez v. Neelly, 197 F. 2d 462 , 344 U. S. 916 ; Communications Assn. v. Douds, 339 U. S. 382 ; Dennis v. United States, 341 U. S. 494 .)
p. 79
IV. The suspension was justified by reason of the fact that any rights, privileges and immunities which the employers may have had, including the right to be classified as an employer within the meaning of the Unemployment Insurance Law, have been statutorily terminated. (United States v. Peace Information Center, 97 F. Supp. 255 ; Farmer v. Rountree, 149 F. Supp. 327 , 252 F. 2d 490 , 357 U. S. 906 ; Teget v. Lambach, 226 Iowa 1346 ; Oil Workers Int. Union v. Elliott, 73 F. Supp. 942 ; Dunne v. United States, 138 F. 2d 137 , 320 U. S. 790 ; Pennsylvania v. Nelson, 377 Pa. 58 , 350 U. S. 497 ; Ohio v. Akron Park Dist., 281 U. S. 74 ; Highland Farms Dairy v. Agnew, 300 U. S. 608 ; Communist Party v. Control Bd., 223 F. 2d 531 , 351 U. S. 115 ; Salwen v. Rees, 16 N. J. 216 .) V. The employers-respondents have no privileges and immunities which they can constitutionally assert. (Hague v. C. I. O., 307 U. S. 496 .) VT. The payment of a tax upon a business prohibited by statute is no justification for doing the forbidden act. (Rutkin v. United States, 343 U. S. 130 ; Angelus Bldg. & Inv. Co. v. Commissioner of Internal Revenue, 57 F. 2d 130 , 286 U. S. 562 ; Wainer v. United States, 299 U. S. 92 ; State ex rel. Replogle v. Joyland Club, 124 Mont. 122 ; State v. Israel, 124 Mont. 152 ; Commonwealth v. Smith, 193 Va. 1 ; Stein v. State Tax Comm., 266 Ky. 469 ; Lueke v. Mescall, 272 Ky. 770 .) VII. The failure of the Federal Government to act upon the provisions of the Communist Control Act of 1954 does not militate against its efficacy. (Salwen v. Rees, 16 N. J. 216 .) VIII. The criminal character of the employers is based on criminality which is malum in se, rather than merely malum prohibitum, and, therefore, no benefits can accrue to its employees under the Unemployment Insurance Law even with respect to employment which antedated the notice of termination. (Albertson v. Millard, 106 F. Supp. 635 , 345 U. S. 242 ; People v. Zinke, 170 Misc. 332 ; Matter of Clarke v. Town of Russia, 283 N. T. 272; Herbold v. Neff, 200 App. Div. 244 ; Carmichael v. Southern Coal Co., 301 U. S. 495 ; Steward Mach. Co. v. Davis, 301 U. S. 548 ; Matter of Cassaretakis, 289 N. Y. 119 , 319 U. S 306 .) IX. The employee is not entitled to any benefits under the Unemployment Insurance Law since he has failed to show that he was employed in covered employment for the minimum number of weeks in the base year. (Matter of Miller v. Kling,
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291 N. Y. 65 ; Matter of Morton, 284 N. Y. 167 Matter of Waterman, 285 App. Div. 1106 , 285 App. Div. 1196 ; Matter of Stork Restaurant v. Boland, 282 N. Y. 256 ; Matter of Electrolux Corp., 288 N. Y. 440 ; Matter of Friedel v. Board of Regents of Univ. of State of N. Y., 296 N. Y. 347 ; Matter of Humphrey v. State Ins. Fund, 298 N. Y. 327 ; Matter of Donahue v. Fletcher, 299 N. Y. 227 ; Matter of Tompkins v. Board of Regents of Univ. of State of N. Y., 299 N. Y. 469 ; Matter of Burke v. Bromberger, 300 N. Y. 248 .) X. The employee was not an employee within the meaning of the Unemployment Insurance Law insofar as the Communist Parties and the Civil Rights Congress were concerned. XI. The fact that the employers-respondents and the Civil Rights Congress were, after the effective date of the Communist Control Act, actually contributing employers does not establish the employee’s right to benefits if there was no right under the law to accept such contributions. (Lanolin Plus Cosmetics v. Marzall, 196 F. 2d 591 , 344 U. S. 823 ; People v. System Props., 281 App. Div. 433 , 2 N Y 2d 330 ; Ranke v. State of New York, 206 Misc. 596 , 285 App. Div. 1113 ; Bates Chevrolet Corp. v. State of New York, 192 Misc. 151 ; Matter of Eisenberg, 184 Misc. 387 ; Matter of Longo v. Eilers, 196 Misc. 909 ; City of New York v. Wilson & Co., 278 N. Y. 86 ; Brill v. Wagner, 5 Misc 2d 768 ; People ex rel. McGoldrick v. Riggs, 200 Misc. 313 ; Williams Oil Co. v. State of New York, 198 Misc. 907 ; People ex rel. Depew v. State Bd. of Parole, 189 Misc. 321 ; Matter of S. B. Garage Corp. v. Murdock, 185 Misc. 55 .)
Stephen C. Vladeck, Sylvan H. Elias and Judith P. Vladeck for William Albertson, respondent.
I. The Appellate Division properly found that claimant-respondent met all qualifications under the law for entitlement to unemployment insurance benefits. The claimant met all of the statutory requirements for entitlement to benefits. (Matter of Batter, 257 App. Div. 546 .) II. The Appellate Division properly found that the statutes relied on by the Industrial Commissioner did not render the claimant’s employment illegal. III. The Industrial Commissioner’s argument that the employment contract between claimant and the employers was void is erroneous as a matter of law. (Matter of Clarke v. Town of Russia, 283 N. Y. 272 ; Herbold v. Neff, 200 App. Div. 244 ; Sturm v. Truby, 245 App. Div. 357 ; Rosasco Creameries v. Cohen, 276 N. Y. 274 .) IV. In
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any ease, there has been no showing that claimant participated in any illegal activity or that his employment was other than lawful. (Matter of Cassaretakis, 289 N. Y. 119 , 319 U. S. 306 ; Yates v. United States, 354 U. S. 298 ; Nowak v. United States, 356 U. S. 660 ; Schware v. Board of Bar Examiners, 253 U. S. 232 ; Schneiderman v. United States, 320 U. S. 118 ; Wieman v. Updegraff, 344 U. S. 183 .)
John J. Abt for Communist Party, U. S. A., and another, respondents.
I. Appellant’s contention that the registrations of the employers-respondents should be suspended because they ‘ ‘ constitute a criminal conspiracy ’ ’ has no foundation in the evidence and is fallacious as a matter of law. (Schware v. Board of Bar Examiners, 353 U. S. 232 ; Yates v. United States, 354 U. S. 298 ; Anti-Fascist Committee v. McGrath, 341 U. S. 123 ; Morgan v. United States, 304 U. S. 1 ; Thompson v. Wallin, 301 N. Y. 476 ; Communist Party v. Control Bd., 254 F. 2d 314 , 351 U. S. 115 .) II. 'The Appellate Division correctly held that the Communist Control Act furnishes no justification for suspending the registrations of the employers-respondents. III. The obligation to pay unemployment insurance taxes is not a right, privilege or immunity within the meaning of the act. IV. The act does not incapacitate the national and State parties from having persons in their employment. V. Appellant’s interpretation of the act is contrary to that of the executive departments of the Federal Government, the Congress and the State Legislature. (Commttnist Party v. Control Bd., 254 F. 2d 314 , 351 U. S. 115 ; Copper Queen Mining Co. v. Arizona Bd., 206 U. S. 474 ; Massachusetts Mut. Life Ins. Co. v. United States, 288 U. S. 269 ; Johnson v. Manhattan Ry. Co., 289 U. S. 479 ; Bullock v. Cooley, 225 N. Y. 566 ; Matter of Kolb v. Holling, 285 N. Y. 104 ; People ex rel. Werner v. Prendergast, 206 N. Y. 405 .) VI. The act contemplates that the Communist Party will continue to have and to act through officers, agents and employees. VII. Section 3 of the act does not terminate rights which are granted by State law. (United States v. Rumely, 345 U. S. 41 ; United States v. Witkovich, 353 U. S. 194 ; United States v. Gambling Devices, 346 U. S. 441 .) VIII. The act does not terminate the collective right of members of the Communist Party to enter into contracts of employment. IX. The liability of the employers-respondents to taxation under the Federal Unem
p. 82
ployment Tax Act is conclusive of their status as contributing employers under the Unemployment Insurance Law. X. The Communist Control Act, on its face and as sought to be applied by appellant, violates the Constitution of the United States. (Pennsylvania v. Nelson, 350 U. S. 497 ; Communist Party v. Control Bd., 351 U. S. 115 .) XI. The aot is a bill of attainder. (Cummings v. Missouri, 71 U. S. 277 ; United States v. Lovett, 328 U. S, 303 ; Communications Assn. v. Douds, 339 U. S. 382 .) XII, The act is an ex post facto law, XIII. The act violates the due process prohibition against fiat legislation, (West Coast Hotel Co. v. Parrish, 300 U. S. 379 ; Miller v. Wilson, 236 U. S. 373 ; Prudential Ins, Co. v. Cheek, 259 U. S, 530 ; Lochner v. New York, 198 U. S. 45 .) XIV, The act violates the First and Tenth Amendments. (De Jonge v. Oregon, 299 U. S. 353 ; Herndon v. Lowry, 301 U, S, 242 ,) XV. The action of appellant in suspending the registrations of the employers-respondents denied them and their employees due process of law and the equal protection of the laws in violation of the New York and United States Constitutions. (Konigsberg y. State Bar, 353 U. S, 252 ; Wieman v. Updegraff, 344 U. S. 183 ; Adler v. Board of Educ,, 342 U. S. 485 ; Nowak v. United States, 356 U, S, 660 ; Schware v. Board of Bar Examiners, 353 U. S. 232 .)

Two separate but related questions arise in this consolidated proceeding. We are first to decide whether, on the theory that his employment by the Communist Parties (N. Y. and U. S. A.) was not “ covered employment ”, respondent Albertson is ineligible for unemployment insurance benefits. Second, we must determine whether the Industrial Commissioner was legally justified in suspending the registration of the Communist Parties themselves as “ employers ” within the meaning of the Unemployment Insurance Law.

We agree with the Appellate Division that Albertson is not to be denied an unemployment insurance award solely because part of his base period of employment was with the Communist organizations. Nothing was proven beyond that bare fact. There is no statute or other precedent disqualifying him from coverage. His work with the Communist organizations was not shown to have been criminal, conspiratorial or traitorous.

p. 83
Despite the equivocal status and illegal purposes of his employer, his own contract of hiring (unlike that in Matter of Clarke v. Town of Russia, 283 N. Y. 272 ) was not so completely illegal as to prohibit unemployment insurance coverage. It would be unreasonably punitive to hold that, because (the employer who paid unemployment taxes for him was engaged in an anti-American conspiracy, Albertson must lose his insurance. Since the striking of the parties from the list was as of March 26, 1957, there is no inconsistency in protecting the insurance rights of Albertson whose employment ended before that date.

As to the alleged rights of Communist Parties to recognition and listing, however, we disagree with the Appellate Division, The Industrial Commissioner in performing his statutory duty (Labor Law, § 571) of computing and collecting these taxes had necessarily to decide who were “ employers ” under the act (Matter of Electrolux Corp., 286 N. Y. 390 , 397). In so doing, he could not ignore the Federal Communist Control Act (U. ¡3. Code, tit. 50, § 842) which declared that the Communist Party is " not entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof; and whatever rights, privileges and immunities which have heretofore been granted to said party or any subsidiary organization by reason of the laws of the United States or any political subdivision thereof are terminated”. We take that plain declaration and its absolute language to mean what it says, although we find no decisions construing it in this connection. It necessarily means that the artificial body or entity calling itself the Communist Party is to be deprived of all the ‘ rights, privileges, and immunities ” that other such entities have. The Appellate Division dealt with this statutory language by saying that the requirement of paying an unemployment insurance tax is not an “immunity or right” where the employer has been allowed by the State to exist, has in fact been allowed the exercise of other privileges and where no reason is shown why it should not pay this tax. Of course, paying a tax is not really claiming an “immunity” or “right” but with the payment of this particular tax goes a status and enrollment as an employer. Whatever value that status may have is being sought and claimed by the Communist Parties in this proceeding.

p. 84
The State offcers of New York, reading literally the Federal statute, have deprived the Communist Parties of their former places on the State’s offcial roll of employers. The Federal Government, although charged with the enforcement of its own Communist Control Act, is, we are told, still collecting unemployment insurance taxes from the Communist Parties. What the reason is for this position we do not know and there is not enough in the record to prove any binding Federal administrative construction of the Federal act. We know that the Communist Parties are allowed to use the mails, list themselves in the telephone books, hold public meetings and write letters to magazines (see Harper’s for May, 1960, pp. 6-8, communication signed by the party’s “National Educational Secretary”). But we are not here determining whether the reports of the demise of these organizations are exaggerated. The situation in our court is that these Communist Parties are demanding that they be restored to this State’s list of employers. They come as unincorporated groups claiming rights or privileges but all rights of unincorporated associations are created by and dependent upon ithe State. The Appellate Division recognized in its opinion that the State might by appropriate steps prevent the Communist Parties ‘ ‘ from engaging in any activity or existence ”. We think that the State of New York has already done so. The Attorney-General, its highest law oEcer, argues to us on this appeal that the unemployment insurance oEcers acted validly in denying further recognition to the Communist Parties.

We accept none of the arguments that this Federal Communist Control Act is unconstitutional. We do not think that it is a bill of attainder or ex post facto legislation. We see no denial of due process in the deprivation of these organizations of their status without a hearing. Section 841 of title 50 of the United States Code contains a Congressional finding that the Communist Party is not really a political party but ‘ ‘ in fact an instrumentality of a conspiracy to overthrow the Government of the United States ”, that it is dedicated “ to the proposition that the present constitutional Government of the United States ultimately must be brought to ruin by any available means, including a resort to force and violence ”, and that as an agency of a hostile foreign power it is “a clear present and continuing danger to the security of the United States,” Similar pro

Dissent

p. 85
nouncementis are found in a number of decisions of this court and of the United States Supreme Court (see Dennis v. United States, 341 U. S. 494 , 547; Matter of Lerner v. Casey, 2 N Y 2d 355 , 372, affd. 357 U. S. 468 ). These are not mere fiats or rhetorical flourishes but recognitions by courts and Congress of facts that are so well established and known that recognition of them without further proof is a right and duty (see East New York Sav. Bank v. Hahn, 293 N. Y. 622 , 627, affd. 326 U. S. 230 ).

The administrative determination suspended the registration of the Communist Parties as of March 26, 1957 and the State has not accepted any reports or payment of contributions since that date. Since Albertson’s employment was earlier than that date there is no difficulty as to him. If there are or will be unemployment insurance problems as to other employees of these Communist Parties, decision on those problems will have to wait until the claims, if any, are presented in the usual way. Many corporations and bodies are considered not to be employers under the act (see Labor Law, § 560, subd. 4) and presumably their employees are aware of it.

The order of the Appellate Division should be modified by reversing so much thereof as sets aside the suspension of the registration of the employers-respondents and the decision of the Unemployment Insurance Appeal Board in this connection reinstated, otherwise the Appellate Division order should be affirmed, with costs to claimant-respondent against the Industrial Commissioner.

This is a curious case; a taxpayer, the Communist Party, resists exemption from taxes, while the State, through its Industrial Commissioner, insists on thrusting such an exemption upon it.

The unemployment insurance system, a joint federal-state undertaking, provides benefits for persons involuntarily unemployed to be financed by an excise tax on employers (see U. S. Code, tit. 26, § 3301 et seq.; Labor Law, art. 18). Having lost his job with the Parkside Delicatessen, following earlier employment with the Communist Party, U. S. A., the respondent Albertson applied for such benefits under this State’s Unemployment Insurance Law (Labor Law, art. 18).[1] Although the

1 His employment with the Communist Party has been treated as essential to qualify him for such benefits.

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Party had paid to the State all unemployment insurance contributions required to be paid and had for many years made, and is currently making, tax payments to the United States Bureau of Internal Revenue under the Federal Unemployment Tax Act, the Industrial Commissioner decided that it was not subject to the tax and that, on this account alone, Albertson was not entitled to unemployment benefits.

This result is sought to be supported by reference to the Federal Communist Control Act of 1954 and by contentions about the nature of the Communist Party and the constitutional powers of the Federal and State Governments to deal with it. But, under settled and salutary principles of adjudication, courts avoid decision on such large-matters — here, not free of difficulty (see Auerbach, The Communist Control Act of 1954, 23 U. of Chi. L. Rev. 173, 183 et seq,; see, also, Remarks of Representative E. Celler, during House debate, 100 Cong. Rec. 14643)—unless they are necessary for a disposition of the issues presented. There is no such necessity in this case; decision of the issues now before us depends solely on the answer to one simple question of statutory construction. Is the Communist Party an “ employer ” subject to unemployment insurance taxes 1 If it is, the Appellate Division was correct, and its order reversing the Industrial Commissioner’s determination must be affirmed.

The New York Unemployment Insurance Law, having its origin in the Federal Social Security Act of 1935 (U. S. Code, tit. 42, § 301 et seq.), defines an “ employer”, in exceedingly broad terms, as “any person, partnership, firm, association, public or private ” (Labor Law, § 512). Absent an overriding-legislative proscription, it is admitted, the Communist Party is an employer within the meaning of our statute, and is liable to pay taxes under the provisions of section 560. But, says the Industrial Commissioner, since 1954, the Federal Government, by enactment of the Communist Control Act (U, S. Code, tit. 50, § 841 et seq.), has prevented the Communist Party from being an employer with the consequence that it is not subject to unemployment insurance taxes and its employees are not entitled to any benefits under our Unemployment Insurance Law.

This contention is unreasonable. In the first place, it is significant that the federal authorities, admittedly aware of the

p. 87
Industrial Commissioner’s position, have taken one diametrically opposed and continue to recognize the Communist Party as an employer subject to the Federal act. And, although determination of the persons who fall within the class of employers subject to the state tax may not be a matter of federal law, there can be no doubt of the desirability, indeed, of the “ obvious necessity of harmonizing where possible our state [unemployment insurance] law with the federal acts ’ ’. (Pioneer Potato Co. v. Division of Employment Security, 17 N. J. 543 , 549, per Brennan, J.) In the second place, the Communist Control Act, relied upon by the Commissioner, may not, in any event, be read to support the determination which he made in this case.

That the Unemployment Insurance Law of New York, as well as of the other states, and the Federal Unemployment Tax Act (U. S. Code, tit. 26, §§ 3301-3308) make up a “coordinated scheme” (Buckstaff Co. v. McKinley, 308 U. S. 358 , 364) is obvious from the merest perusal of the statutes concerned (see, especially, U. S. Code, tit. 26, §§ 3302, 3306; U. S. Code, tit. 42, § 503; Labor Law, §-§ 530, 532, 536, 560, subd. 1, par. [c][2] ) and has been the subject of judicial observation not only in this court, but in numerous other courts. (See, e.g., Matter of Lazarus [Corsi], 294 N. Y. 613 , 618; Buckstaff Co. v. McKinley, 308 U. S. 358 , 363-364, supra; Lines v. State of California, 242 F. 2d 201 , 203, cert, denied 355 U. S. 857 ; Scripps Mem. Hosp. v. California Employment Comm., 24 Cal. 2d 669 , 677; Arnold Coll. v. Danaher, 131 Conn. 503 , 507; Stromberg Hatchery v. Iowa Employment Security Comm., 239 Iowa 1047 , 1051; Pioneer Potato Co. v. Division of Employment Security, 17 N. J. 543 , 547, supra.) Thus, we are told on the highest authority that “ it would seem to be a fair presumption that the purpose of Congress was to have the state law as closely coterminous as possible with its own. To the extent that it was not, the hopes for a coordinated and integrated dual system would not materialize.” (Buckstaff Co. v. McKinley, 308 U. S. 358 , 364, supra.) Perhaps, the strongest indication that “ The administration of the branch of federal security which deals with [unemployment compensation] and the administration of the

2 Paragraph (c) of subdivision 1 of section 560 does not appear in the reeodification which took effect in January of 1960.

p. 88
state laws [dealing with ,the same subject] constitute a single system” (Arnold Coll. v. Danaher, 131 Conn. 503 , 507, supra,), is provided by the fact that our Legislature itself prescribed, as one of the conditions of liability for contributions under our law, that an employer is ‘" liable for tax under the provisions of the federal unemployment tax act ” (Labor Law, § 560, subd. 1, par. [c]).[3]

Notwithstanding these overwhelming indications that the state and federal unemployment compensation provisions should be administered, insofar as possible, as one act, the Industrial Commissioner has refused so to consider them. He admits that the federal authorities, despite the statutes on which he relies and despite their awareness of his position, continue to deal with the employer respondents herein as " liable for tax under the provisions of the federal unemployment tax ”, but he insists that his judgment should not be controlled by their determination. There is no warrant for this position in the statute which he administers. The necessity to achieve a coordinated and integrated dual system ” (Buckstaff Co. v. McKinley, 308 U. S. 358 , 364, supra) represents so strong a state and federal legislative policy that the Industrial Commissioner should have concluded that, as long as an employer is treated by the federal authorities as subject to the federal unemployment tax, it is liable for contributions under our Unemployment Insurance Law, unless, of course, our own statute embodies an express provision to the contrary. (See Matter of Lazarus [Cor si], 294 N. Y. 613 , 618, supra; see, also, cases cited, supra, p. 87; cf. Matter of Marx v. Bragalini, 6 N Y 2d 322 , 333; Matter of Weiden, 263 N. Y. 107 , 110.) As was said by the Connecticut Supreme Court, " Unless the provisions of the state [unemployment insurance] statute clearly differ from those of the federal act, it must be assumed that the legislature intended that they be interpreted alike, and this is particularly true with reference to those which determine the persons who are obligated to make contributions.” (Arnold Coll. v. Danaher, 131 Conn. 503 , 507, supra.) Especially is this so where the only

3 As noted in footnote 2, this paragraph does not appear in the recent reeodifieation of section 560 which became effective January 1, 1960. It seems to have been omitted for technical considerations and without any regard to underlying policy.

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basis for the Commissioner’s position is his interpretation of a federal statute.

In short, a determination by the federal authorities that, despite the Federal Communist Control Act, the Communist Party is an employer subject to registration and tax under the Federal Unemployment Tax Act (U. S. Code, tit. 26, § 3301 el seq.) requires a like decision by the Industrial Commissioner. Even were this not so, however, I would, nevertheless, regard the Commissioner’s ruling as unreasonable since it rests on a mistaken reading of the Communist Control Act. Insofar as relevant that statute (U. S. Code, tit. 50) recites in section 842:

“ The Communist Party of the United States * * * [is] not entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof; and whatever rights, privileges, and immunities which have heretofore been granted to said party * * * are hereby terminated ”.

Whatever else this legislation may mean, it may not be taken to affect the “liability [of] any employer * * * for contributions ” under our Unemployment Insurance Law (Labor Law (art. 18, § 560). This, it ¡seems obvious, necessarily follows from the fact that, whereas the act cuts off " rights, privileges and immunities ”, the status of an employer under the Unemployment Insurance Law involves, and is expressly denominated, a “ liability ” (see, e.g., Labor Law, §§ 560, 561, 562, 570, 572, 579), a duty to pay an “ excise tax.” (Matter of Cassaretakis, 289 N. T. 119, 127, affd. 319 U. S. 306 ; see, also, Matter of Burke, 267 App. Div. 127 , 130.) Certainly, a deprivation of " immunities ’ ’ may not be read to confer an immunity from taxation and, just as surely, a loss of “ rights ” and “ privileges ” can hardly be said to grant a freedom from the" obligation to pay a tax. Taxation is an intensely practical business, and the courts do not deal in riddles in interpreting tax statutes.

There are surely better ways of dealing with the problems posed by communism and the Communist Party than by forced and unreal construction of statutes designed to serve entirely

Concurrence

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different purposes. The plain fact is that our Unemployment Insurance Law was enacted to benefit the ‘ ‘ unemployed worker ’ ’ (Labor Law, § 501), not the employer, and it is the latter who is burdened with a tax in order to fulfill the purposes of the statute. The imposition of such a burden upon the Communist Party as employer cannot possibly be deemed the sort of ‘' right ” or “ privilege ’ ’ denied to the Party by the Communist Control Act. If Congress had been intent upon depriving the Communist Party of its ability to enter into contracts or hire employees, it could easily and unmistakably have ■ so provided. And, if our Legislature desired to prevent employees of the Communist Party from receiving unemployment insurance benefits, it could, I assume, have done so, but, in the absence of such legislation, the Industrial Commissioner may not bring about this result simply by coining a new legal concept, a privilege new to our law, ‘ ‘ the privilege to pay taxes ’ ’.

This disposes of the proceeding brought by the respondent employer; the Communist Party is subject to registration and taxation as an employer under the Unemployment Insurance Law. And, that being so, it follows that the Appellate Division was also correct in holding, in the proceeding instituted by the respondent Albertson, that he had met all qualifications under the law and was entitled to unemployment benefits.

I would affirm the order appealed from in all respects.

If the Communist Party in the United States is ‘ ‘ the agency of a hostile foreign power ’ ’ and ‘ ‘ an instrumentality of a conspiracy to overthrow the Government of the United States ” as the Congress of the United States has determined (U. S. Code, tit. 50, § 841), on. account of which it has been “ outlawed ” and declared not to be “ entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof” (id., § 842), then if cannot be recognized as a legitimate employer or its servants as legitimate employees. It has no living legal tissue. It enjoys neither the identity nor the rights, privileges or immunities of a legal organization. Unless these findings by the Congress are idle words, if lacks the power to make contracts and cannot enter into the relationship of employer and employee. No agency of a foreign power or its

p. 91
subsidiary organizations can have a legal status as part of ‘1 an authoritarian dictatorship within a republic,” as the Communist Control Act says, certainly where its reason for existence is that which is above stated. Taxation does not make it legal (United States v. Yuginovich, 256 U. S. 450 , 462; United States v. Stafoff, 260 U. S. 477 , 480; United States v. One Ford Coupe, 272 U. S. 321 , 326).

These conclusions are in accord with the majority opinion insofar as it upholds the suspension of the registration of the Communist Party—State and national—but not in regard to the allowance of unemployment insurance to Albertson. In our view the order of the Appellate Division should be reversed in its entirety and the determination of the Unemployment Insurance Appeal Board reinstated.

Judge Dye concurs with Chief Judge Desmond; Judge Fuld dissents in part and votes to affirm the order appealed from in all respects in an opinion in which Judge Fboessel concurs; Judge Van Voorhis concurs in part but votes to reverse the order appealed from and to reinstate the determination of the Unemployment Insurance Appeal Board in an opinion in which Judge Burke concurs; Judge Foster taking no part.

Order of the Appellate Division modified in accordance with the opinion herein and, as so modified, affirmed, with costs to claimant-respondent against the Industrial Commissioner.

Cases cited

Statutes and regulations cited