For the prosecutor, Gross & Gross (Benjamin Gross).
For the respondent, Herman D. Ringle and Charles A. Malloy.
Before Justices Case, Bodine and Porter.
The opinion of the court was delivered by
CASE, J. We have before us for review a determination of the Unemployment Compensation Commission that the prosecutor, Miller Auto Gear and Parts Co., Inc., is an employer subject to the provisions of the Unemployment Compensation Law, R.S. 43:21-1, et seq. The determination
stands or falls upon whether or not Barney Miller, the owner of one third of the capital stock and the vice-president and treasurer of the corporation, was employed by the corporation. If he was employed, the corporation had eight persons in employment and the statute, R.S. 43:21-19 (h) (1), applied; otherwise not.
The facts are not in dispute. Miller was the vice-president and treasurer of the corporation. The only function that he performed on behalf of the corporation was to sign checks and notes which were countersigned by one of the other officers. Miller had an independent business of his own -- a fish business -- which he personally conducted at a different location in the City of Bayonne. He rarely visited the place of business of the corporation. On almost all occasions when checks were to be signed they were taken by a messenger to Miller's place of business and signed there. Miller received no remuneration or compensation. He devoted his time exclusively to his own business.
The statutory provision is in R.S. 43:21-19 (h) (1):
"'Employer' means: (1) Any employing unit which for some portion of a day, but not necessarily simultaneously, in each of twenty different weeks, whether or not such weeks are or were consecutive, within either the current or the preceding calendar year, has or had in employment, eight or more individuals (irrespective of whether the same individuals are or were employed in each such day)."
The act does not apply to all employees; only to those who are part of a total of eight or more. There is nothing inherently distinguishing in that number. A man or a woman who has only two or three or six associated employees may be as apt to lose his or her job and to feel the pinch of unemployment as is the employee who is one of eight or more, but he or she does not come within the statute. Eight is an arbitrary number fixed by the legislature; simply that, and precisely that. It is, therefore, not for those who sit in a judicial capacity, whether within and as a part of the commission, or independently as a part of ...