Attorney General Opinions and Advisory Letters
Decision Information
Candelaria v. Vallejos - cited by 49 documents
Graham v. Miera - cited by 47 documents
Decision Content
Opinion No. 65-111
June 24, 1965
TO: Senator R. C. Morgan, 223 South Main, Portales, New Mexico
QUESTION
FACTS
The owner of a barber shop leases a barber chair to another barber for a fixed amount weekly. The owner gives no orders and exercises no control over the lessee barber. Customers are not directed to certain barbers. The lessee barber keeps all moneys which he receives from the customers and pays therefrom his own social security taxes and occupation tax. In addition, the lessee barber barber pays school taxes on his own gross receipts.
QUESTION
Under these facts is the owner of the barber shop the "employer" of the lessee barber for purposes of employer contributions under the Unemployment Compensation Act?
CONCLUSION
Not under the facts as stated.
OPINION
{*189} ANALYSIS
Section 59-9-22 (f), N.M.S.A., 1953 Compilation, the definition section of the Unemployment Compensation Law, defines "Employer" in terms of "employing unit." Then turning to the definition of "employing unit" in paragraph (e) of the same section, the statute speaks in terms of persons or entities who have had {*190} individuals in their "employ." Paragraph g (6) states that "Services performed by an individual for wages shall be deemed to be employment subject to the act unless . . ." "Wages" are defined as "all remuneration for services, including commissions and bonuses and the cash value of all remuneration in any medium other than cash."
It is true as stated by our Supreme Court in Graham v. Miera, 59 N.M. 379, 285 P.2d 493, that unemployment security acts are remedial legislation and should be liberally interpreted and that "statutory definitions modify the common law definitions of master and servant." Nonetheless, statutory definitions are not to be stretched to include as employers those whom the legislature did not decree to be such.
The key phrase in the Act, insofar as an answer to your question is concerned, is "services performed for wages." Under the facts as related to us the lessee barber performs no services for the shop owner; neither does he receive any wages from him. He is an independent contractor acting on his own.
There were two companion Ohio cases decided in 1963 on this same question. The first of these cases (Bailey v. Leach, Ohio, 193 N.E. 2d 165) dealt with a situation where the barbers shared their income with the shop owner. Thus their earnings were dependent upon the amount of work performed by them. The shop owner retained certain control over the barbers in regard to the manner and means of performing the work. Based on these facts the court concluded that the shop owner was an employer under the Unemployment Compensation Act.
The second Ohio case (Bailey v. Leach, Ohio, 193 N.E. 2d 166) dealt with a fact situation where the shop owner exercised no control over the lessee barber, where the rental was a fixed amount and where the lessee barber performed no services directly for the shop owner. Under this set of facts the court concluded that the shop owner was not an employer under the Unemployment Compensation act.
Similar cases have dealt with persons who are in orchestras. Questions have arisen as to whether the hotel or the orchestra leader is the employer. The latter has been held to be the employer because the services are performed for him, are paid for by him and the methods that are to be used in performing the services are controlled by him. Mowry v. Board of Review of Department of Labor, Ill., 104 N.E. 2d 280; In re Jermyn Hotel Co., Pa. 58 Dauph 10.
Basing our conclusion solely on the statutory definitions contained in the Unemployment Compensation Act, as Graham v. Miera, supra, indicates should be done, we do not believe barbers operating under the plan set forth in the facts perform any services for the shop owner or receive any wages from him. Under such circumstances the shop owner is not an employer of the lessee barber for purposes of the Unemployment Compensation Act.
Re: 63-112
June 24, 1965
TO: Office of the Attorney General of New Mexico
{*181} MEMORANDUM OPINION
Acequia and Community Ditch Associations are public corporations (Candelaria v. Vallejos, 13 N.M. 146, 81 Pac. 589) and political subdivisions. Attorney General Opinion No. 63-112. Chapter 145, Laws 1965, compiled as Section 75-14-25.1 provides as follows:
"Acequia and community ditch associations are hereby declared to be political subdivisions of this state."
This enactment was simply a legislative declaration of a fact long recognized by the executive branch of state government.
The following list encompasses the actual and de facto community ditch associations in Mora, San Miguel, Colfax and Lincoln Counties:
Coyote River and tributaries
Theodore y Eusibio Romero
Santo Thomas No. 1
Santo Thomas No. 2
Santo Thomas No. 3
R. Torres
Las Cocas
Santa Rita
Montoya
Rainsville
Los Griegos Cr.
Upper Mora River
Los Cruzes
Lunas
Las Colonias
Gallina
Leyba
La Jolla
El Rito
Romero
Lovatos y Romero
Lovatos y Raton
Acequia del Media
Romero
Acequia Madre de Holman
Los Martinez
La Morada
Trampero Abajo
Tranpero del Media
La Acequia de Arriba y Sierra de Holman
Canoncito
Encinol
Vallecitos
Cassidy
Encinol
El Alto South
Alto del Talco
Maes y Romero
Martinez
Lucero
Cassidy Mill
El Alto North -- El Medio -- Edge or River
Alto de los Chupaderos
En Medio
Trambley Mill
Navarro
Lower Mora River
Canoncito de la Cueva
La Cueva ditch & storage
Buena Vista
South Golondrinas
North Golondrinas
Sandoval y Weathen
Upper Clyde
Loma Parda
Phoenix
Larrazola
Crowley
Tipton
North Side
Cherry Valley
{*182} Rio Cebolla
La Canada y La Aguila
La Bandito-Monte Aplanado
Los Quintanas
La Canada Scca
Murphy Lake
La Isla
San Jose
El Carmen
San Jose Abajo
Sapello-Manuelita Creeks
Acequia del Sombrilla
Rociada Puniente
Ramirez
Rociada Oriente
Jose Doloros Maestos
Paiz Maestas
Acequia de los Martinez
Canancito de la Manuelita
Alcanter
Los Martinez
La Tequa
Manuelita
Rackley
San Ignacio
Acequia del Ojo
Rito Colorado
Acequia de las Tusas
Acequia de los Chimayosas
Davis y Pena
Acequia de Llano
Shallaberger-Placita
La Molina
Wheaton Creek
Piedra Colorada
Manueles Creek
Upper Ditch
Crtiz
South Ditch
Community Ditch
Ocate Creek
Lopez Ditch
Los Le Febres Creek
Sandoval Ditch
Upper and lower Trujillo Ditches
Le Febre
Las Hueras Creek
Upper Ditch
Lower Ditch
Vanderitas Creek
Upper and Middle Garcia
Ditches
Naranjos Community Ditch
Hern Ditch
Rio Ruidoso -- Community Ditches
1. F. Herrera Ditch -- S -- Near Ruidoso
2. Hale Ditch -- S -- Near Ruidoso Downs
3. F. Herrera Ditch -- N -- Near Ruidoso Downs
4. A. Herrera Ditch
5. Avent Ditch
6. Bracken Ditch
7. Maxwell-Hewett Ditch
8. Pope Ditch
9. Allison Ditch
10. F. Sanchez Ditch -- N --
11. F. Sanchez Ditch -- S --
12. M. Sanchez Ditch
13. Mirabal Norman Ditch
14. F. Silva Ditch
15. P. Gonzales Ditch
16. A. Sanchez Ditch (J. Tully)
17. J. Tully Ditch
18. G. Coe Ditch
19. R. Coe Ditch
20. F. Coe Ditch
21. L. Gallegas Ditch
22. Barragan and West Ditch
23. Analla and Barragan Ditch
24. Ambrocio Chaves Ditch
25. Leopoldo Gonzales Ditch
26. Chasas Ditch -- N --
27. Chasas Ditch -- S --
28. F. Sanchez Ditch
29. D. Gallegas Ditch
30. San Patricio Ditch -- Community
31. Mes Ditch
32. F. Hilbern Ditch
{*183} 33. C. Hilbern Ditch
34. Storm Ditch
35. Ambrocio Chaves Ditch
36. Kirkland Ruidoso Ditch
Rio Hondo
1. P. Chaves Spring Ditch
2. J. and P. Analla Ditch
3. F. and M. Analla Ditch
4. Pas Torres Ditch
5. Analla Spring Ditch
6. Serrano Ditch
7. Josefa Vigil Ditch
8. Casey and Ramon Vigil Ditch
9. Buck Guys Ditch
10. Casey Ditch
11. Picacho Ditch
12. Kline Ditch
13. Montano Ditch
14. Michaelis Ditch
15. Antelope Valley Irrigation District (Springer)
16. Vermejo Conservancy District (Maxwell)