For the prosecutor, Pitney, Hardin & Skinner (Charles R. Hardin and Frederick A. Frost).
For the respondents, Clarence F. McGovern.
For the Unemployment Compensation Commission, Herman D. Ringle and Charles A. Malloy.
Before Justices Case, Donges and Heher.
The opinion of the court was delivered by
CASE, J. The writ of certiorari brings up a determination of the Board of Review (Unemployment Compensation Commission of New Jersey) which held that Arthur N. Selvey was, under the circumstances hereinafter related, eligible for benefits because of unemployment and that the prosecutor was the employer within the purview of the statute entitled "An act to provide for the establishment and administration
of unemployment compensation, providing for the levy and collection of contributions therefor, providing penalties and making appropriations," being chapter 270 of Pamph. L. 1936, appearing in the Revised Statutes as chapter 21 of title 43.
Prosecutor is a national bank incorporated under the Federal Banking Act. Within its conceded statutory authority, it made a loan, secured by first lien upon improved realty. There was a default under the mortgage. The bank foreclosed, bought in at the foreclosure sale and on or shortly after March 25th, 1937, received a deed from the sheriff for the premises. The bank made a bona fide effort to liquidate its interest in the property as rapidly as possible but was unable to do so forthwith and for a time, including the period now in question, operated the property through a managing agent. No profit was made by the bank either on the operation of the property or on the bank's original investment. The question is whether the employment was within the application of the Unemployment Law.
That statute provides (R.S. 43:21-19 (i) (7) (F)):
"The term employment shall not include: * * * Service performed in the employ of any other state or its political subdivisions, or of the United States government, or of an instrumentality of any other state or states or their political subdivisions or of the United States."
That provision is plain. Service in the employ of an instrumentality of the United States is not within the statute. We have no occasion to inquire whether the status of one employed by an instrumentality of the United States is such that his employment could be brought within the statute if the state legislature undertook so to do. We are simply to ascertain whether the respondent was in the employ of an instrumentality of the United States acting within its powers as such instrumentality. If that question is resolved in the affirmative, the case is decided. National banks are instrumentalities of the United States. That legal fact is established beyond ...