The opinion
Millard, J.
(dissenting) — I accept as conclusive the finding by the commissioner that the reason for the unemployment of certain employees “was that they refused to go through the picket line established by the striking union.” That finding does not, however, sustain the decision of the commissioner that such refusal constitutes “participating in” the labor dispute within the meaning of the unemployment compensation statute (Rem. Rev. Stat. (Sup.), § 9998-105 (e)).
I am aware of the decision of the supreme court of California, which the Associated Press announced three days ago (February 7, 1941), to the effect “that employes out of work because of voluntary refusal to pass strike picket lines are not entitled to unemployment compensation.”
If that authority or precedent be
invoked
— Quod
ex-emplo fit, id etiam jure fieri putant
— to buttress the position of the majority of this court, it is a sufficient and logical answer to observe that to require men to do that which would tend to cause a riot and probably result in serious injury to, or loss of life of, those in the picket line and those who endeavored to break through such line, as a condition precedent to unemployment compensation, is an exaction so oppressive as to invalidate the statute in so far as the imposition of the penalty is concerned.
In addition to the logic of the position of the minority, a precedent to support that position is available, an opinion of this court. In
In re Deming,
192 Wash. 190 , 73 P. (2d) 764 , we held that a statute which exacted a ten per cent penalty in the event of the failure of a
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guardian to render a verified account at least once in every two years, and whenever cited to do so, was invalid in so far as the imposition of the penalty of ten per cent was concerned. We said:
“Careful consideration of the statute now under discussion, in the light of the authorities, convinces us that the provision thereof purporting to impose a ten per cent penalty for failure to file a verified account within the time limited by law is arbitrary, unjust and discriminatory, is not based upon any reasonable theory of compensation, and that the same is consequently void as amounting to taking property without due process of law.”
To require men to commit assault and battery, violate criminal statutes, jeopardize their limbs and lives as a prerequisite to unemployment compensation, can not reasonably be deemed less oppressive than the ten per cent penalty provision of the statute invalidated in
In re Deming, supra.