Amicus Curiae Brief — McGrew Paint & Asphalt Co. v. Murphy

| ee

oe SERRE

SUA

SELON?

JAN 9 1949 -

IN THE

Supreme Court of the Unitett States GROPLEY

Ocroser Term, 1944.

McGREW PAINT AND ASPHALT CO.,

Petitioner,

No. 756. Us.

FRANCIS B. MURPHY, Direcror or Lapor.

RAILWAY PAINT CO.,

Petitioner.

No. 757. Us.

, FRANCIS B. MURPHY, Director or Lanor.

DEDNOX, INC.,

No. 758. Us.

FRANCIS B. MURPHY, Direcror or Lapor.

Petitioner,

| INSUL-MASTIC ROOFING & SIDING CO.,

Petitioner,

No. 759. vs.

FRANCIS B. MURPHY, Direcror or Lapon.

WRITS OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS.

ANSWER OF RESPONDENT TO PETITION FOR

WRITS OF CERTIORARI.

GEORGE F. BARRETT,

Attorney General of the State

of Illinois,

Attorney for Respondent.

Wiruuiam (. Wives,

Assistant Attorney General.

Of Counsel.

EGER S RECN RIN NE

SUBJECT INDEX.

PAGE

pe ee POR LAME AIS Tr gee en 1

SE ME RI 5c Sd do oes a ae OM ae ee eae 2,3

Argument:

I. Certiorari should be denied since no substantial

federal question is involved................... 4-8

II]. The denial of certiorari in Bureau of Unemp.

Comp. v. Independent Gasoline Company, 311

U.S. 707, relied upon by petitioners, imports no

expression of opinion upon the merits of that

ON 55.5 oS oo Sea EOS ee eae Tra wee 8-10

Ill. Petitioners’ contention that the affiliation pro-

vision in question covers control by illegal means

a SP OE IN oi Sn ee es a 10-11

ee a COE Co PED En ear RS ENG 8 ETE Lal Ge 8 op aT 12

TABLE OF FrepERAL Cases CITep.

Alton R. Co. y. Illinois Commission, 305 U. 8. 048, 5549

American Auto Trimming Co. v. Luea, 37 Fed. (2d) 801 7

Atlantic Coast Line R. Co. v. Powe, 283 U.S. 401, 403,

G8 = Tie eae hae aay Reena oine eas See y

Avent v. Mississippi Unemp. Comp. Comm., 316 U. S.

RE, We Wk SR Sic GU heck BOS De rane wel 4, 6

Black Diamond Coal Co. v. Comm., 61 Fed. (2d) 573

Rig Ss IL BO MED io ren ck eked Uk UME We ce katouas 7

Board of Tax Commissioners v. Jackson, 283 U.S. 527 6

sureau of Unemp. Comp. v. Independent Gasoline

CANN ER 0) WES skate divs sores Waetcns 8, 9, 10

Burnet Comm’r v. Wilshire Oil Co., Ine., 46 Fed. (2d)

WE A sy. Ses A EER kok Se oa a iw oe a 7

Carmichael v. Southern Coal Company, 301 U. S. 495,

Wes 5s 18 Fe Ween ieleKa oa eae sck Sach oe eee 4

Comm. v. City Button Works, 49 Fed. (2d) 705, 706.. 7

Kinterprise Irrigation Dist. v. Farmers Mut. Canal Co.,

ec ah ees EB os ois tae kee 10

Kquitable Life Assurance Society v. Brown, 187 U.S.

MG ME fa EGR ARaE Pn hee aN eS ee 6

Great A. & P. Company v. Grosjean, 301 U.S. 412. ..4,5,6

Hamilton-Brown Shoe Company v. Wolf Brothers &

Cobspeny, B60 0. Bi Bae, Te so eRe a g

H. EH. Butt Grocery Company v. Sheppard, 311 U. S.

ache a BG tee a Soa ane 4,5, 6

felverme vy. Clifford, 300 U. &. 3B)... . oe ccc cs 4,6

Indiana Unemp. Comp. Board yv. Benner-Coryell Lum-

Der Te, ae a; Wee oro as eee 8,9

iB Se

ill

Island Petroleum Co. v. Comm., 57 Fed. (2d) 992

i Sis Rs vd s cay w dun encnessesauuunseanaal

J. Rogers Flannery & Company v. Comm., 42 Fed. (2d)

ES os op aka neh bh aot a an eae eek Ga wk Aan EA clei aaa

Kile & Morgan Company v. Commissioner, 41 Fed.

NEEDS OM OL SIE R ESATO OER OR

Lavenstein Corporation v. Comm’r, 25 Fed. (2d) 375

iioett Co. v. Lee, 308 0. B. 87... oh ee cei ds

ignch v. Mow Tork, 306. B. 00. 05. occ senile.

Minnesota v. National Tea Company, 309 U.S. 551, 556

| Murdock v. Memphis, 20 Wall. 590, 634, 635...........

Olds and Whipple v. Comm., 75 Fed. (2d) 272 (C. C. A.

MR ord come Faerie eee eee

Palmgrove Company v. Comm’r., 25 Fed. (2d) 801....

Pokorny Realty Company v. U.S.,59 Fed. (2d) 236...

Senn v. Tile Layers Union, 301 U. S. 468, 477........

Uniform Printing & Supply Company v. Comm., 33

Pe. Cae SOP rn Sac Bn ND ou cab cla hvac bhccaed

U8. v. Carver, 260 U. &. 468 400... ww. ccc scene

TABLE oF State Cases Crren.

_ Benner-Coryell Lumber Company v. Indiana Unemp.

Comp. Board, 218 Ind. 20, 29 N. E. (2d) 776........

- Gibson Products Co. v. Murphy, 186 Okla. 714, 100 P.

ENE Ss Gsrud ou Vb sche AK des FANE EE ca es

- Godsol y. Michigan Unemp. Comp. Comm., 302 Mich.

a; ee REE Es 6a 5 0c toads bes BuGi ae ee

H. E. Butt Grocery Company v. Sheppard, 137 8S. W.

8,9

iv

Independent Gasoline Company v. Bureau of Unemp.

Comp., 190 Ga. 613, 10 S. E. (2d) 58........... 7, 8, 9, 10

Kellogg v. Murphy, 349 Mo. 1165, 164 S. W. (2d) 285.. 5

Maine Unemp. Comp. Comm. vy. Androscoggin, Jr.,

Inc., 137 Me. 154, 16 A. (2d) 262.... 2... ...660005, §

Maryland Unemp. Comp. Bd. v. Albrecht, 36 A. (2d) 666 §

Mississippi Unemp. Comp. Comm. v. Avent, 192 Miss.

eS Tee ey ss Ko kak sh aacun haan pre 4,6

Moriarty, Inc. v. Murphy, 387 ll. 119, 55 N. K. (2d) 281 1)

Mt. Vernon Bank and Trust Co. v. Iowa Employment

Security Comm., 11 N. W. (2d) 402................ §

New Haven Metal and Heating Supply Co. y. Danaher,

E28 Oomn, Bike, Zi A. (98) S06... ees &

Unemp. Comp. Comm. vy. Willis, 219 N. C. 709, 15 S. E.

GRE ties get boas Paice e aes eee N

Washington v. Kitsap County Bank, 10 Wash. (2d) 520,

i ee ee mato nE bah ENE NED, 0 #7) 7,8

Wiley Motors, Inc. vy. Unemp. Comp. Comm., 130 N. J.

L. 30, 31 A. (2d) 39, 131 N. J. L. 228, 35 A. (2d) 894 §

Witherspoon Oil Co. v. State (Texas), 156 S. W. (2d)

onc OE ET CE) CE OEE Dp Mime son §

Feprrant Statutes Crrep.

U. S. Stat. at Large, Vol. 40, P. 1082................ 7

State Sratvures Crrep.

Ala. Acts 1935, See. 2(f), P. 952: Ala. Code of 1928

(1896 Cam:.Senpp., Par. T6Q7)... «0. 6.6 6d.ccaceades 4,5

Ch. 48, Par. 218(e) (4), P. 1610, Tll. Rev. Stat. 1937... .2, 10

Ch. 48, Par. 218(e) (5), P. 1614, Tl. Rev. Stat. 1939... .3, 10

‘ da

IN THE

Supreme Court of the United States

Ocroser TERM, 1944.

McGREW PAINT AND ASPHALT CO.,

Petitioner,

_ No. 756. vs.

FRANCIS B. MURPHY, Drrecror or Lasor.

RAILWAY PAINT CO.,

/ No. 757. vs.

j FRANCIS B. MURPHY, Drmecror or Lasor.

Petitioner,

DEDNOX, INC.,

No. 758. vs. Petitioner,

FRANCIS B. MURPHY, Dimecror or Lasor.

INSUL-MASTIC ROOFING & SIDING CO.,

Petitioner,

No. 759. US.

FRANCIS B. MURPHY, Direcror or Lasor.

WRITS OF CERTIORARE TO THE SUPREME COURT OF ILLINOIS.

ANSWER OF RESPONDENT TO PETITION FOR

WRITS OF CERTIORARI.

The respondent for this, his answer to the petition for

| writs of certiorari in the premises, says that, for the rea-

sons and upon the considerations suggested in the brief

accompanying this answer, the said petition for writs of

certiorari should be denied.

Francis B. Murpny,

Director of Labor.

By: Georcr F. Barrett,

Attorney General of the State of Illinois.

STATEMENT OF THE CASE.

The Llinois Unemployment Compensation Act sets y

a comprehensive plan for providing unemployment benefit.

for workers employed within the State by employers desig

nated by the Act. These employers include all who emplo:

six or more workers within twenty or more weeks in th

year (eight or more workers prior to 1940), except thos:

engaged in certain specified employments.

The Act imposes on employers who come within its scope,

the obligation to pay a certain percentage of their pay

rolls into the State unemployment trust fund. Benefits are

payable from the fund to the employees covered by the

Act, in the event of their unemployment, upon prescribed

conditions and at prescribed rates.

In order to prevent evasion of the law by dividing «

business having the required number of workers to bring i!

within the statute into smaller units, each having less thar

the minimum number of workers (R. 33), the Illinois Legis

lature originally in 1937 incorporated into the Unemploy-

ment Compensation Act the provision which is now being

attacked by the petitioners. This provision, more common

referred to as the ‘‘affiliation provision,’’ is as follows:

‘* *Kimployer’ means:

‘‘Any employing unit which, together with one «

more other employing units, is owned or controlled,

direetly or indireetly, by the same interests, or whic)

owns or controls one or more other employing units

and which, if treated as a single unit with such othe

employing units or interests, or both, would be an en:

ployer under paragraph (1) of this subsection;’’ (Ch

48, Par. 218(e)(4), P. 1610, Tll. Rev. Stat. 1937.)

3

The above section was amended on May 24, 1939 to read

as follows:

‘**Kimployer’ means:

‘*Any employing unit which, together with one or

more other employing units, is owned or controlled, di-

rectly or indirectly, by legally enforceable means or othi-

erwise, by the same interests, or which owns or controls

one or more other employing units directly or indi-

rectly, by legally enforceable means or otherwise, and

which, if treated as a single unit with such other em-

ploying units or interests or both, would be an em-

ployer under paragraph (1) of this subsection.’’ (Ch.

48, Par. 218(e)(5), P. 1614, Ill. Rev. Stat. 1939.)

The necessity for the above provision has been recog-

nized not only in [llinois but also in many other parts of

the country. Twenty-two other States now have a similar

provision in their unemployment compensation laws.’

Right States have no need of an affiliation provision, since

their unemployment compensation laws impose liability on

employers with a minimum of one worker or very few

workers.2. Three States formerly contained an affiliation

provision in their unemployment compensation acts but

deleted it when their laws were amended so as to prac-

tically include all emplovers regardless of the number of

their workers.*

The question sought to be presented.

The question raised by petitioners herein is whether

the above affiliation provision in the [linois Unemploy-

ment Compensation Act infringes the due process and

equal protection clauses of the Fourteenth Amendment.

1. Arizona, Delaware, Florida, Georgia. Iowa, Louisiana, Maine, Mary-

land, Michigan. Minnesota, Mississippi. Missouri, New Hampshire, New

Jersey, New Mexico, North Dakota, Oklahoma, Rhode Island, South Caro-

lina, Tennessee, Texas and West Virginia.

2. Arkansas, California, Montana, Nevada, Ohio, Oregon, Pennsylvania

and Wyoming.

3. Idaho, Utah and Washington.

Soteietle Satie ie

S

EERE ce ES I

yaaa

ARGUMENT.

L.

Certiorari should be denied since no substantial Federa!

question is involved.

The question raised by petitioners has already been fore

closed by prior decisions of this Court so as to leave w

room tor real controversy.

In Mississippe Unemp. Comp. Comm. v. Avent, 192 Miss.

So, 4S. (2) 296, 684, it was contended that certain provi

sions of the Mississippi Unemployment Compensation Act

identical with the provisions of the Illinois Unemployment

Compensation Act herein attacked, deprived the appelle

of property without due process of law and denied him th

equal protection of the law contrary to the State and Fed

eral constitutions, The Supreme Court of Mississippi held

that such provisions were not violative of either the State

ov Federal constitutions.

An appeal was taken to this Court, which dismissed the

appeal for want of a substantia] Federal question. Arent v.

Vississipps Unemp. Comp. Comm... 316 U.S. 641: 62.8

('t. 947. In dismissing the appeal, this Court cited th

following cases: Carmichael vo Southern Coal Company

BOLUS. 495, 510-513; Great A. P. Company v. Grosjean

SOLUS. 412, WR. Butt Grocery Company v. Sheppard

S11 UL S. 608; Helrering v. Clifford, 309 U.S. 331.

Carmichacl v Southern Coal Company, supra, involved

the general constitutionality of the Alabama Unemploy

ment Comperfsation Act. The said Act at that time con

tained the following provision :

vee 8 Where a) person, partnership, associa

Eis

ae

5

tion, corporation, whether domestic or foreign, or the

legal representative, trustee in bankruptey, receiver,

or trustee thereof, or the legal representative of a de-

ceased person, cither directly or through a holding

company or Otherwise has a majority control or own-

ership of otherwise separate business enterprises eni-

ploying persons in the state, all such enterprises shall

be treated as a single ‘employer’ for the purposes of

this act. * * *'* (The Unemployment Compensa-

tion Act, Ala. Acts 1935, See. 2(f), P. 952; Ala. Code

of 1928, 1936 Cum. Supp., Par. 7597.)

This Court, while not specifically discussing such pro-

vision, held that the Alabama Unemployment Compensa-

tion Act, as a whole, was not subject to any constitutional

infirmity.

In Great A. d P. Company v. Grosjean, supra, this Court

upheld the constitutionality of a State chain store tax

act which provided that the tax ‘tshall be based on the

tumber of stores or mereantile establishments included un-

der the same general management, supervision or con.

trol."’

The Butt Grocery case, supra, involved an appeal from

the decision of the Court of Civil Appeals, 3d Supreme

Judicial District of Texas, which sustained the validity of

the Texas Chain Store Act. H. BE. Butt Grocery Company

v. Sheppard, 137 S. W. (2d) 823, 824. The said statute

provided that the ** Act shall be construed to apply to every

ei which is

controlled or held with others by majority stock owner-

person for} * * * corporation

ship or ultimately controlled or directed by one manage-

ment or association of ultimate management. * * *"

In its decision, the Texas Court pointed out that the law

was manifestly intended to prevent large chains of stores

from cireumventing the tax burdens imposed under the

Act, by organizing separate corporations to operate them,

AP A I 6 ots hae

*

Ship ke Sei eek ae ee

6

the capital stock of which, or a majority of it, being owned

by a parent corporation or holding company, or by an iy

dividual or association of individuals. The Court also

noted that it was unmaterial that the appellant corpora

tious were organized and were operating stores separately

before the Act was passed.

Upon appeal to this Court, the ease was dismissed for

want of a substantial federal question, the Court citing

frreat A. d& P. Company v. Grosjean, supra; Board of Ta:

Commissioners Vv. Jackson, 283 UL S. 527: Liggett Co. \

Lee, 288 US. 517; Fox v. Standard Oil Co., 294 U.S. 87.

The last three cases dealt with statutes similar to the om

quoted above in Great A. & P. Company v. Grosjean, su

pra.

In Helrerima vo Clifford, supra, this Court held that;

husband was properly taxed for income of property placed

by him in trust for his wife, where he retained contro!

over the trust property and the income.

Upon consideration of the authorities cited by this Court

in dismissing the appeal in the trent case, supra, it is

manifest that this Court by virtue of such decisions ha-

upheld the validity of the provision herein attacked. A!

though petitioners have raised a federal question, it ‘is

one which has been so explicitly decided by this Court as

to foreclose further argument on the subject and hence

to cause the federal question relied upon to be devoid ot

any substantial foundation or merit."* (Equitable Lat

Assurance Society v. Brown, 17 U.S. 308, 314.)

It should be noted that language similar te the statute

in question has for many vears occurred in Federal Rev

enue Acts and has been the subject of frequent construc

tion and explication in the opinions of Federal courts ty

many decisions.

For example, Section 240(b) of the Federal Interna!

-

i

Revenue Act of 1918, which required affiliated corporations

to file consolidated returns, defined affiliation, declaring it

to exist where ‘‘substantially all of the stock of two or

more corporations is owned or controlled by the same in-

terests."" U.S. Stat. at Large, Vol. 40, P, 1082.) This

section was reenacted in the Revenue Acts of 1919 and

921, It was changed to ‘towned by the same interests’’

in the Revenue Act of 1924.

The said provisions in the Federal Revenue Acts have

becn given effect in the following cases: Pokorny Realty

Company v. U.S. 59 Fed. (2d) 236; American Auto Trim-

ming CoV. Luca, 37 Fed. (2d) 801; Uniform Printina d

Supply Company Vv. Comm., 33° Fed. (2d) 445 (0, tS. ees

ith): Comm. v. City Button Works, 49 Fed. (2d) 705, 706:

Palmarove Company Vv. Comm’ r, 25 Fed. (2d) S01: Laven-

tem Corporation vo. Comm'n, 25 Fed. (2d) 375: J. Roaers

Flannery d Company v. Comm., 42 Fed. (2d) 11: Olds and

Whipple v. Comm... 75 Fed. (2d) 272 (C. C. A. 2d. 1925) ;

Black Diamond Coal Co. v. Comm.. 61 Fed. (2d) 573 (C.

CA. 7th, 1982); Island Petroleum Co. v. Comm.. 57 Fed.

2d) 992 (C. CL AL, 4th); Burnet Comm’r v. \Vilshire Oil

Co. Ine. 46 Ped. (2d) 975 (C. C. A. 9th, 1931): Kile &

Horgan Company v. Commissioner, 41 Fed. (2d) 925,

The case of Independant Gasoline Company v. Bureau of

Vremp. Comp., 190 Ga. 613, 10S. EK. (2d) 58, upon which

petitioners rely, represents a minority view and stands

alone. Tt is ably discussed and disapproved of in ellaash-

maton Vv. Kitsap Countu Bank, 10 Wash. (2d) 520, 117 P.

(2d) 228.

As against the holding in Independent Gasoline Com-

yanu v. Burean of Unemp. Comp.. supra, affiliation provi-

‘ions in the unemployment compensation laws of twelve

other States which are similar to the one in question have

wen sustained as constitutional in the following eases:

Se

vay

;

a

¥

i

!

3

ie

#

as Sot

Sif RRS

ate

8

New Haven Metal and Heating Supply Co. v. Danaher, 128

Conn. 213, 21 A. (2d) 383; Mt. Vernon Bank and Trusi

Co. v. lowa Employment Security Comm., 11 N. W. (2d)

402; Mame Unemp. Comp. Comm. y. Androscoggin. Jr,,

Ine., 1ST Me. 154, 16 A. (2d) 252; Maryland Unemp. Comp,

Bd. v. Albrecht, 36 A. (2d) 666; Godsol v. Michigan Unemp,

Comp. Comm., 302 Mich. 652, 5 N. W. (2d) 519; Mississippi

Unemp, Comp. Comm. v. Avent, 192 Miss. 85, 4S. (2d)

296, 684; Kellogg v. Murphy, 349 Mo. 1165, 164 S. W. (2d)

280; Wiley Motors, Ine. v. Unemp. Comp. Comm., 130 XN. J.

L. 30, 31 A. (2d) 39; 131 N. J. L. 228, 35 A. (2d) 894:

Unemp. Comp. Comm. v. Willis, 219 N. C. 709, 15 S. E.

(2d) 4; Gibson Products Co. v. Murphy, 186 Okla. 714, 100

P. (2d) 458; Witherspoon Oil Co. v. State (Texas), 156

S. W. (2d) 579; Washington vy. Kitsap County Bank, 10

Wash. (2d) 520; 117 P. (2d) 228.

It is respectfully submitted that the question raised by

petitioners is clearly unsubstantial and that the petition

for writs of certiorart should therefore be denied.

Il.

The denial of certiorari in Bureau of Unemp. Comp. v. In.

dependent Gasoline Company, 311 U. S. 707, relied upon

by petitioners, imports no expression of opinion upon

the merits of that case.

Petitioners’ assert that provisions similar to the one iy

question have been held unconstitutional in) [ade penden’

Gasoline Company v. Bureau oF Unemp. Comp.. 190 Ga.

613, 10S. FB. (2d) 58 and in Benner-Coryell Lumber Con

pany v. Indiana Unemp. Comp. Board, 218 Ind. 20, 2%

N. BE. (2d) 776, and that this Court has denied certiorari

in both of these cases. Bureau of Unemp. Comp. v. Inds

pendent Gasoline Company, 311 U.S. 707: Indiana Un

7)

emp. Comp. Board v. Benner-Coryell Lumber Company,

312 U. S. 698.

A careful reading of the decision of the Supreme Court

of Indiana in Benner-Coryell Lumber Company v. Indiana

Unemp. Comp. Board, supra, clearly indicates that the

statute therein attacked was not declared unconstitutional

but that it was held inapplicable to the facts in that ease.

Moreover, this Court denied certiorari in the foregoing

Indiana case for want of a final judgment. /ndiana Un-

emp. Comp. Board vy. Benner-Coryell Lumber Company,

supra.

The denial of certiorari by this Court in Bureau of Un-

emp, Comp. Vv. Independent Gasoline Company, supra, im-

ports ho expression of opinion upon the merits of the ease.

That rule has been stated many times by this Court, U.S,

v. Carver, 200 U.S, 482, 490; Hamilton-Brown Shoe Com-

pany Vv. Wolf Brothers & Company, 240 U.S. 251, 258:

Atlantic Coast Line R. Co. vy. Powe, 288 U.S. 401, 403, 404.

It should be noted that in Bureau of Unemp. Comp. Vv.

Independent Gasoline Company, supra, the Supreme Court

of Georgia held that the provision in question violated

beth the state and federal constitytions. Its decision as

to the validity of the statute under ‘the state constitution is

accepted as binding by this Court. Minnesota v. National

Tea Company, 309 U.S. 551, 556; Alton R. Co. v. Illinois

Commission, 8305 U.S. 548, 554: Senn v. Tile Layers Union,

301 U.S. 468, 477.

A decision by a state court holding a state statute in-

valid because repugnant to like provisions in both the

federal and state constitutions rests upon adequate non-

federal grounds and will not be reviewed by this Court.

Lynch v. New York, 293 U. S. 52. Where an independent

and adequate non-federal ground of decision appears, re-

view may not be had in the Supreme Court of the United

10

States, even though the state court purports to decide 4

federal question and decides it erroneously. As this Court

has pointed out, in such a case reversal for error in the

decision of the federal question would be ‘useless and

profitless,"’ for the state court could thereafter enter the

same judgment upon the non-federal ground alone. Mur-

dock v. Memphis, 20 Wall. 590, 634, 6385; Enterprise Irri-

gation Dist. v. Farmers Mut. Canal Co., 243 U.S. 157, 164,

165.

In view of the foregoing, the reason for the denial of

certiorari by this Court in Bureau of Unemp. Comp. vy.

Independent Gasoline Company, supra, is clear. It is re-

specttully submitted that sueh denial imports no expres-

sion of opinion upon the merits of that case.

ITT,

Petitioners’ contention that the affiliation provision in

question covers contro] by illegal means is devoid of

merit.

Petitioners maintain that the phrase ‘by legally en-

forceable means or otherwise’? as contained in the affilia-

tion provision purports to include control by unlawful and

fraudulent means. The contention is inapplicable and

frivolous as is evident from the following:

First, prior to May 24, 1939, the affiliation provision in

the Illinois Unemployment Compensation Act did not con-

tain the phrase ‘‘by legally enforceable means or other.

wise.”* (Page 2 herein.) Such phrase was added hy

amendment on May 24, 1939 (Page 3 herein).

The petitioners were in existence prior to that date (Pe-

titioners’ Brief P. 20) and their liability was predicated

upon the provisions of the statute prior to the said amend-

ment.

11

Second, the argument is based on purely gratuitous

assumptions. It is without any foundation in the record

and is premised upon a complete misunderstanding of the

opinion rendered by the Supreme Court of Illinois in the

instant case.

The Hlinois Supreme Court held that both ownership

and actual joint control were necessary to bring an em-

ployer within the scope of the affiliation provision (R. 33,

34; see also Woriarity, Ine. v. Murphy, 387 Til. 119, 55 N. EB.

(2d) 281, decided by the Supreme Court of Illinois on the

same day as the instant case). It found that O. V. Me

Grew’s majority ownership of the stock in each of the pe-

titioner corporations constituted ownership within the

meaning of the statute and that the stipulation as to con-

trol was a binding stipulation of fact made for the purpose

of obviating the necessity of taking proof on the question

of actual joint control, evidencing a unification in the man-

agement and formation of the policies of each of the pe-

titioner corporations. It is difficult to conceive of control

being other than legally enforceable under the above cir-

cumstances.

Third, petitioners place an unreasonable construction on

the phrase ‘*by legally enforceable means or otherwise.”’

Such language plainly does not sanction control by unlaw-

ful or fraudulent means. The objective of the statute does

not require such a construction nor will the Court impute

such an intention to the Legislature. No court which has

pissed upon the affiliation provision has so construed it,

least of all the Supreme Court of Illinois. On the eon-

trary, the latter has limited the application of the affilia-

tion provision to cases where both ownership and control

are present.

It is submitted that petitioners’ contention is without

merit in this regard.

1 abn A DOS Be SA NMR

whAG

Ros

a

oy

“"

12

CONCLUSION.

For the foregoing reasons respondent submits that the

petition for writs of certiorari should be denied.

Respectfully submitted,

GHORGE F. BARRETT,

Attorney General of the State

of Illinois, |

Attorney for Respondent,

Wit.tiam C. WINEs,

Assistant Attorney General,

Of Counsel.

Address: Supreme Court Building,

Springfield, [linois.