State v. Whitehurst

57 S.E.2d 770 (1950)

231 N.C. 497

STATE ex rel. EMPLOYMENT SECURITY COMMISSION v. WHITEHURST.

No. 26.

Supreme Court of North Carolina.

March 1, 1950.

*771 W. D. Holoman, R. B. Overton, R. B. Billings, Raleigh, for appellee the Employment Security Commission of North Carolina.

Harry B. Brown, Elizabeth City, for defendant appellant.

DENNY, Justice.

The defendant contends that since he was not an employing unit at the time he bought the assets of M. E. Perry, trading as Colonial Cleaners, he could not be held an employing unit that acquired the assets of another so as to tack on his employment of more than eight individuals for sixteen weeks in 1948, to the employment of more than eight individuals for twelve weeks in 1948, by the previous owner of the business, and thereby make him liable for contributions upon wages paid his employees during 1948.

The answer to the defendant's contention is found in the pertinent provisions of the Employment Security Law.

G.S. § 96-8(e) defines an employing unit as follows:

"`Employing unit' means any individual or type of organization, including any partnership, association, trust, estate, jointstock company, insurance company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal representative of a deceased person which has, on or subsequent to January first, one thousand nine hundred and thirty-six, had in its employ one or more individuals performing services for it within this state * * *."

An employer who is required to pay contributions upon wages of his employees, is defined in G.S. § 96-8(f), subsection (1), as follows:

"`Employer' means (1) Any employing unit which in each of twenty different weeks within either the current or the preceding calendar year has, or had in employment, eight or more individuals". And any two employing units may be treated as a single unit when they come within the provisions of G.S. § 96-8(f), subsection (3) which provides:

" `Employer' means * * * (3) Any employing unit which acquired the organization, trade, or business, or substantially all the assets, thereof, of another employing unit and which, if treated as a single unit with such other employing unit, would be an employer under paragraph (1) of this subsection."

It will be noted that the right to treat two employing units as a single unit, is not referred to in the statute as an employing unit which acquires the organization, trade or business of another employing unit, but as an "employing unit which acquired the organization, trade, or business * * * of another employing unit and which, if treated as a single unit with such other * * * unit, would be an employer" under the definition contained in subsection (1) of G.S. § 96-8(f).

Clearly, W. H. Whitehurst, trading as Colonial Cleaners, became an employing unit as defined by the statute, G.S. § 96-8 (e), on August 16, 1948, the date he began to operate the business. And the Employment Security Commission of North Carolina had the right to know whether or not the employing unit of W. H. Whitehurst, trading as Colonial Cleaners, acquired the business from another employing unit. There is but one answer to such inquiry. He acquired all the assets of another employing unit, and when these two employing units are treated as a single unit, as provided in the statute, then such unit employed as many as eight individuals for twenty eight weeks in 1948, and "would be an employer" as defined in G.S. § 96-8(f), subsection (1).

We do not concur in the defendant's contention that in order for the employing unit of M. E. Perry, trading as Colonial Cleaners, and the employing unit of W. H. Whitehurst, trading as Colonial Cleaners, to be "treated as a single unit" it was necessary for W. H. Whitehurst to have been *772 an "employing unit" prior to the time he acquired the assets of M. E. Perry. On the contrary, we think the defendant was an "employer" in 1948, within the meaning of the Employment Security Law. It follows, therefore, that the judgment entered below will be upheld.

Affirmed.