The opinion
John A. Fogleman, Justice, dissenting. I disagree with the majority only in its finding substantial evidence that the services performed by the members of the Shiloh Trust in operating the service station were “for wages” as required by Ark. Stat. Ann. § 81-1103 (i) (5) (Repl. 1960). “Wages” for the purpose of the act are defined as “remuneration payable for personal services.” Ark. Stat. Ann. § 81-1103 (n) (Repl. 1960). As weird and unrealistic as the method of operation of the Shiloh Trust, in the existing world, may seem to us, I cannot agree that those persons operating the service station receive remuneration for their personal services.
The trust is described as having been initiated for the rehabilitation of man. The personnel utilized in the service station are drawn entirely from the members of the group and reside on the trust property. The member who started the station is now assigned to another operation. The allowance to each member is called a “student requirement.” It is determined solely by the age of the member. The chores or duties performed have no bearing upon the payment or its amount. People among the members who have reached “substantial” age and perform no services whatever receive the same allowance. One of these at Shiloh was stated to be an example. The income produced from the station is kept in a separate bookkeeping account, and the profit remaining after all bills are paid goes into the trust fund, from which allowances are paid to all members. A member who did not render any services would continue to receive his allowance. Four members have served at the service station, but. not all of them simultaneously. Little profit has been realized at the service station. No time records are kept on chores or assignments performed by members.
The findings made by the circuit court include the following:
The decisive point in issue it seems to this Court is whether services are being performed for compensation. On this issue a determination is being made that the members do not work for wages as reflected by the record presented in the case. Recognition is given to the fact that Shiloh does not withhold any State or Federal income taxes from the allowance and do not deduct anything for Social Security taxes. Too, the fact that the Internal Revenue Service has ruled that the allowances do not constitute wages and therefore requires no deductions or withholdings appears to be highly significant.
The Employment Security Act specifically states a declaration of State public policy. An examination of 81-1101 forces me to the conclusion that the individual members of Shiloh could never make claim against an employer; that there is no employer-employee relationship and that no contributions should be exacted.
In reaching this decision language used in the case of McCain, Commissioner of Labor v. Crossett Lumber Company, 206 Ark. 51 , appears to be applicable:
“. . . in construing an act imposing a special tax, such as we have here, we must construe the same strictly against the State and favorably to the taxpayer, and all ambiguities or doubts therein respecting liability for such tax must be resolved in favor of the taxpayer.”
I submit that the eminent circuit judge was correct in his findings. Consequently, I would affirm his judgment.
I am authorized to state that Harris, C. J., joins in this dissent.