text:
A.C. No.172933 - JESUS E. VERGARA v. HAMMONIA MARITIME SERVICES, INC., ET AL.
A.C. No. 172933 - JESUS E. VERGARA v. HAMMONIA MARITIME SERVICES, INC., ET AL.
JESUS E. VERGARA, Petitioner, v. HAMMONIA MARITIME SERVICES, INC. and ATLANTIC MARINE LTD., Respondents.
Seaman Jesus E. Vergara (Petitioner) comes to us through this Petition for Review on Certiorari1 with the plea that we set aside - for being contrary to law and jurisprudence - the Decision2 promulgated on March 14, 2005 and the Resolution3 promulgated on June 7, 2005 by the Court of Appeals (CA), both issued in C.A.-G.R. SP No. 85347 entitled Jesus E. Vergara v. National Labor Relations Commission, et al.
On April 4, 2000, petitioner was hired by respondent Hammonia Maritime Services, Inc. (Hammonia) for its foreign principal, respondent Atlantic Marine Ltd., (Atlantic Marine). He was assigned to work on board the vessel British Valour under contract for nine months, with a basic monthly salary of US$ 642.00.
The petitioner was a member of the Associated Marine Officers' and Seaman's Union of the Philippines (AMOSUP). AMOSUP had a collective bargaining agreement (CBA) with Atlantic Marine, represented in this case by Hammonia.
The petitioner left the Philippines on April 15, 2000 to rendezvous with his ship and to carry out therein his work as a pumpman. In August 2000, while attending to a defective hydraulic valve, he felt he was losing his vision. He complained to the Ship Captain that he was seeing black dots and hairy figures floating in front of his right eye. His condition developed into a gradual visual loss. The ship's medical log entered his condition as "internal bleeding in the eye" or "glaucoma."4 He was given eye drops to treat his condition.
The petitioner went on furlough in Port Galveston, Texas and consulted a physician who diagnosed him to be suffering from "vitreal hemorrhage with small defined area of retinal traction. Differential diagnosis includes incomplete vitreal detachment ruptured macro aneurism and valsulva retinopathy."5 He was advised to see an ophthalmologist when he returned home to the Philippines.
He was sent home on September 5, 2000 for medical treatment. The company-designated physician, Dr. Robert D. Lim of the Marine Medical Services of the Metropolitan Hospital, confirmed the correctness of the diagnosis at Port Galveston, Texas. Dr. Lim then referred the petitioner to an ophthalmologist at the Chinese General Hospital who subjected the petitioner's eye to focal laser treatment on November 13, 2000; vitrectomy with fluid gas exchange on December 7, 2000; and a second session of focal laser treatment on January 13, 2001.
On January 31, 2001, the ophthalmologist pronounced the petitioner fit to resume his seafaring duties per the report of Dr. Robert D. Lim, Medical Coordinator.6 The petitioner then executed a "certificate of fitness for work" in the presence of Dr. Lim.7 Claiming that he continued to experience gradual visual loss despite the treatment, he sought a second opinion from another ophthalmologist, Dr. Patrick Rey R. Echiverri, who was not a company-designated physician. Dr. Echiverri gave the opinion that the petitioner was not fit to work as a pumpman because the job could precipitate the resurgence of his former condition.
On March 20, 2001, the petitioner submitted himself to another examination, this time by Dr. Efren R. Vicaldo, a physician who was not also designated by the company. Dr. Vicaldo opined that although the petitioner was fit to work, he had a Grade X (20.15%) disability which he considered as permanent partial disability.
Armed with these two separate diagnoses, the petitioner demanded from his employer payment of disability and sickness benefits, pursuant to the Philippine Overseas Employment Administration Standard Employment Contract Governing the Employment of all Filipino Seamen on Board Ocean-going Vessels (POEA Standard Employment Contract), and the existing CBA in the company. The company did not heed his demand, prompting the petitioner to file a complaint for disability benefits, sickness allowance, damages and attorney's fees, docketed as NLRC NCR OFW Case No. (M) 01-050809-00.
On January 14, 2003, Labor Arbiter Madjayran H. Ajan rendered a decision in the petitioner's favor.8 The Arbiter ordered Hammonia and Atlantic Marine to pay the petitioner, jointly and severally, sickness allowance of US$ 2,568.00 and disability benefits of US$ 60,000.00 under the CBA, and 10% of the monetary award in attorney's fees.
The petitioner thereafter sought relief from the CA via a Petition for Certiorari under Rule 65 of the Rules of Court. The CA dismissed the petition in a Decision promulgated on March 14, 2005,11 and likewise denied the petitioner's motion for reconsideration.12 Hence, the present petition.
The petitioner contends that the CA erred in denying him disability benefits contrary to existing jurisprudence, particularly the ruling of this Court in Crystal Shipping Inc., A/S Stein Line Bergen v. Deo P. Natividad,13 and, in strictly interpreting the POEA Standard Employment Contract and the CBA between the parties on the matter of who determines a seafarer's disability.
The petitioner particularly questions the CA decision for giving credit to the certification by the company-designated physician, Dr. Robert Lim, that declared him fit to work.14 On the assumption that he was indeed fit to work, he submits that he should have been declared to be under permanent total disability because the fit-to-work declaration was made more than 120 days after he suffered his disability.
In a different vein, the petitioner impugns the pronouncement of Dr. Robert Lim, the company-designated physician, that he was fit to resume sea duties as of January 31, 2001 since Dr. Lim did not personally operate on and attend to him when he was treated; he had been under the care of an ophthalmologist since September 6, 2000. The petitioner points out that there is nothing in the record to substantiate the correctness of Dr. Lim's certification; neither did the attending eye specialist issue any medical certification, progress report, diagnosis or prognosis on his eye condition that could be the basis of Dr. Lim's certification. The petitioner stresses that Dr. Lim's certification was not based on his first hand findings as it was issued in his capacity as the "Medical Coordinator" of the Metropolitan Hospital.17 He also points out that Dr. Lim is not an eye specialist.
20.1.5 Permanent Medical Unfitness - A seafarer whose disability is assessed at 50% or more under the POEA Employment Contract shall, for the purpose of this paragraph is regarded as permanently unfit for further sea service in any capacity and entitled to 100% compensation, i.e., US$ 80,000 for officers and US$ 60,000 for ratings. Furthermore, any seafarer assessed at less than 50% disability under the Contract but certified as permanently unfit for further sea services in any capacity by the company doctor, shall also be entitled to 100% compensation.
1. The provisions of the POEA Standard Employment Contract and the CBA between the parties clearly provide that the assessment of the company-designated physician should be accorded respect.
2. There are no legal or factual bases for the petitioner's claim of total and permanent disability benefits as he was declared "fit to work."
3. The petitioner's reliance on the Crystal Shipping v. Natividad24 case is misplaced.
4. The petitioner is not entitled to attorney's fees.
The respondents anchor their case on their compliance with the law and the existing CBA as applied to the petitioner's circumstances.
They point out that upon the petitioner's repatriation, he was immediately referred to an ophthalmologist who scheduled him for observation and regular monitoring preparatory to possible vitrectomy. He was prescribed medication in the meantime.
On November 13, 2000, the petitioner underwent laser treatment of the right eye, which he tolerated well. His vitrectomy, scheduled on November 22, 2000, was deferred because he was noted to have accentuated bronchovascular marking on his chest x-ray, and mild chronic obstructive pulmonary disease as revealed by his pulmonary function test. He was given medication for his condition and was advised to stop smoking.
The petitioner was cleared for surgery on November 29, 2000. He underwent vitrectomy with fluid gas exchange and focal laser treatment of his affected eye on December 7, 2000. He tolerated the procedure well. His condition stabilized and he was discharged for management as an outpatient on December 9, 2000.
On December 13, 2000, the petitioner's vision was 20/40 (r) and 20/20 (l) with correction and slight congestion observed in his right eye. His vision improved to 20/25 (r) and 20/20 (l) by December 20, 2000 although a substantial lesion was observed and contained by laser markings. This remained constant and by January 11, 2001, no sign of vitreous hemorrhage was noted on fundoscopy.
The respondents anchor their objection to the grant of disability benefits on Dr. Lim's certification. They dispute the petitioner's contention that the medical certifications and assessments by the petitioner's private physicians - Dr. Echiverri and Dr. Vicaldo - should prevail.
The respondents likewise question the petitioner's reliance on Art. 20.1.5 of the CBA for his claim that he is entitled to 100% disability compensation since his doctors, Echiverri and Vicaldo, declared him unfit to work as a seaman although his disability was determined to be only at Grade X (20.15%), a partial permanent disability. They contend that the petitioner's position is contrary to what the cited provision provides as the CBA28 specifically requires a "company doctor" to certify a seafarer as permanently unfit for service in any capacity.
3. Upon sign-off from vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of his permanent disability has been assessed by the company-designated physician, but in no case shall this period exceed one hundred twenty (120) days.
In case of permanent total or partial disability of the seafarer caused by either injury or illness the seafarer shall be compensated in accordance with the schedule of benefits enumerated in Section 30 of his Contract.
The respondents then point out that Section 30 provides a schedule of disability for injuries, disease or illness contracted. Any item in the schedule classified under Grade I constitutes total and permanent disability entitled to a disability allowance equivalent to US$60,000 (US$50,000 x 120%). They consider reliance on this Court's ruling in Crystal Shipping v. Natividad;30 Government Service Insurance System v. Cadiz;31 and Ijares v. Court of Appeals,32 to be misplaced with respect to the advocated conversion of the petitioner's medical condition from temporary to permanent disability.
The respondents stress that in the present case, the petitioner had been accorded the necessary medical treatment, including laser treatment by company-designated physicians, that restored his visual acuity to 20/20. He was declared fit to work upon his return to the full possession of all his physical and mental faculties and after he was cleared of all impediments. They contend as well that all that the petitioner could present in support of his claim for total permanent disability was the Grade X disability assessment issued by his private physician, Dr. Vicaldo, that he is "now unfit to work as seaman." They point out that Dr. Vicaldo himself is not an "eye specialist."
Finally, the respondents insist that neither factual nor legal basis exists for petitioner's claim of Grade I total and permanent disability benefits. Factually, the petitioner was declared fit to work by the company-designated physician. Legally, only blindness or total and permanent loss of vision of both eyes is considered a Grade I disability under the terms of the POEA Standard Employment Contract. Under its Section 30 on the portion on "Eyes," only total and permanent loss of vision of both eyes can be considered as Grade I disability, not the petitioner's claimed impairment of vision in the right eye.
The Governing Law and Rules.
Entitlement to disability benefits by seamen on overseas work is a matter governed, not only by medical findings but, by law and by contract. The material statutory provisions are Articles 191 to 193 under Chapter VI (Disability Benefits) of the Labor Code, in relation with Rule X of the Rules and Regulations Implementing Book IV of the Labor Code. By contract, Department Order No. 4, series of 2000 of the Department of Labor and Employment (the POEA Standard Employment Contract) and the parties' CBA bind the seaman and his employer to each other.
By way of background, the Department of Labor and Employment (DOLE), through the POEA, has simplified the determination of liability for work-related death, illness or injury in the case of Filipino seamen working on foreign ocean-going vessels.33 Every seaman and the vessel owner (directly or represented by a local manning agency) are required to execute the POEA Standard Employment Contract as a condition sine qua non prior to the deployment for overseas work. The POEA Standard Employment Contract is supplemented by the CBA between the owner of the vessel and the covered seamen.
Any unresolved dispute, claim or grievance arising out of or in connection with this Contract, including the annexes shall be governed by the laws of the Republic of the Philippines, international conventions, treaties and convenants where the Philippines is a signatory.
Through this provision, the DOLE skirted any possible issue regarding the law that should govern the terms and conditions of employment of Filipino seamen working in ocean-going vessels that have no significant Philippine presence and that hardly see Philippine waters. Thus, with the POEA Standard Employment Contract, there is no doubt that in case of any unresolved dispute, claim or grievance arising out of or in connection with the contract, Philippine laws shall apply.
In real terms, this means that the shipowner - an employer operating outside Philippine jurisdiction - does not subject itself to Philippine laws, except to the extent that it concedes the coverage and application of these laws under the POEA Standard Employment Contract. On the matter of disability, the employer is not subject to Philippine jurisdiction in terms of being compelled to contribute to the State Insurance Fund that, under the Labor Code, Philippine employers are obliged to support. (This Fund, administered by the Employees' Compensation Commission, is the source of work-related compensation payments for work-related deaths, injuries, and illnesses.) Instead, the POEA Standard Employment Contract provides its own system of disability compensation that approximates (and even exceeds) the benefits provided under Philippine law.34 The standard terms agreed upon, as above pointed out, are intended to be read and understood in accordance with Philippine laws, particularly, Articles 191 to 193 of the Labor Code and the applicable implementing rules and regulations in case of any dispute, claim or grievance.
As these provisions operate, the seafarer, upon sign-off from his vessel, must report to the company-designated physician within three (3) days from arrival for diagnosis and treatment.35 For the duration of the treatment but in no case to exceed 120 days, the seaman is on temporary total disability as he is totally unable to work.36 He receives his basic wage during this period37 until he is declared fit to work or his temporary disability is acknowledged by the company to be permanent, either partially or totally, as his condition is defined under the POEA Standard Employment Contract and by applicable Philippine laws.38 If the 120 days initial period is exceeded and no such declaration is made because the seafarer requires further medical attention, then the temporary total disability period may be extended up to a maximum of 240 days, subject to the right of the employer to declare within this period that a permanent partial or total disability already exists.39 The seaman may of course also be declared fit to work at any time such declaration is justified by his medical condition.
Thus, upon petitioner's return to the country for medical treatment, both he and the respondent company acted correctly in accordance with the terms of the POEA Standard Employment Contract and the CBA; he reported to the company-designated doctor for treatment and the latter properly referred him to an ophthalmologist at the Chinese General Hospital. No dispute existed on the medical treatment the petitioner received, to the point that the petitioner executed a "certificate of fitness for work" based on the assessment/certification by the company-designated physician.
Problems only arose when despite the certification, the petitioner sought second and third opinions from his own doctors, one of whom opined that he could no longer resume work as a pumpman while the other recognized a Grade X (20.15%) partial permanent disability. Based on these opinions, the petitioner demanded that he be paid disability and sickness benefits; when the company refused, the demand metamorphosed into an actual case before the NLRC Arbitration Branch.
As we outlined above, a temporary total disability only becomes permanent when so declared by the company physician within the periods he is allowed to do so, or upon the expiration of the maximum 240-day medical treatment period without a declaration of either fitness to work or the existence of a permanent disability. In the present case, while the initial 120-day treatment or temporary total disability period was exceeded, the company-designated doctor duly made a declaration well within the extended 240-day period that the petitioner was fit to work. Viewed from this perspective, both the NLRC and CA were legally correct when they refused to recognize any disability because the petitioner had already been declared fit to resume his duties. In the absence of any disability after his temporary total disability was addressed, any further discussion of permanent partial and total disability, their existence, distinctions and consequences, becomes a surplusage that serves no useful purpose.
A twist that directly led to the filing of this case is the issue of whose medical pronouncement should be followed given that the company-designated physician had declared the petitioner fit for work with a certification of fitness duly executed by the latter, while the petitioner's physicians gave qualified opinions on his medical situation.
x x x more weight should be given to the assessment of degree of disability made by the company doctors because they were the ones who attended and treated petitioner Vergara for a period of almost five (5) months from the time of his repatriation to the Philippines on September 5, 2000 to the time of his declaration as fit to resume sea duties on January 31, 2001, and they were privy to petitioner Vergara's case from the very beginning, which enabled the company-designated doctors to acquire a detailed knowledge and familiarity with petitioner Vergara's medical condition which thus enabled them to reach a more accurate evaluation of the degree of any disability which petitioner Vergara might have sustained. These are not mere company doctors. These doctors are independent medical practitioners who passed the rigorous requirements of the employer and are more likely to protect the interest of the employer against fraud.
Moreover, as between those who had actually attended to petitioner Vergara throughout the duration of his illness and those who had merely examined him later upon his recovery for the purpose of determining disability benefits, the former must prevail.
We note, too, as the respondent company aptly observed, that the petitioner never raised the issue of the company-designated doctor's competence at any level of the arbitration proceedings, only at this level of review. On the contrary, the petitioner accepted his assessment of fitness and in fact issued a certification to this effect. Under these circumstances, we find the NLRC and the CA's conclusions on the petitioner's fitness to work, based on the assessment/certification by the company-designated physician, to be legally and factually in order.
As a last point, the petitioner has repeatedly invoked our ruling in Crystal Shipping, Inc. v. Natividad,41 apparently for its statement that the respondent in the case "was unable to perform his customary work for more than 120 days which constitutes permanent total disability." This declaration of a permanent total disability after the initial 120 days of temporary total disability cannot, however, be simply lifted and applied as a general rule for all cases in all contexts. The specific context of the application should be considered, as we must do in the application of all rulings and even of the law and of the implementing regulations.
Crystal Shipping was a case where the seafarer was completely unable to work for three years and was undisputably unfit for sea duty "due to respondent's need for regular medical check-up and treatment which would not be available if he were at sea."42 While the case was not clear on how the initial 120-day and subsequent temporary total disability period operated, what appears clear is that the disability went beyond 240 days without any declaration that the seafarer was fit to resume work. Under the circumstances, a ruling of permanent and total disability was called for, fully in accordance with the operation of the period for entitlement that we described above. Viewed from this perspective, the petitioner cannot cite the Crystal Shipping ruling as basis for his claim for permanent total disability.
Additionally and to reiterate what we pointed out above regarding the governing rules that affect the disability of Filipino seafarers in ocean-going vessels, the POEA Standard Employment Contract provides its own Schedule of Disability or Impediment for Injuries Suffered and Diseases Including Occupational Diseases or Illness Contracted (Section 32); Disability Allowances (a subpart of Section 32); and its own guidelines on Occupational Diseases (Section 32-A) which cannot be disregarded in considering disability compensation and benefits. All these - read in relation with applicable Philippine laws and rules - should also be taken into account in considering and citing Crystal Shipping and its related line of cases as authorities.
In light of the above conclusions, we see no need to discuss the petitioner's other submissions that the lack of disability has rendered moot, particularly the existence of doubt that the petitioner insists should be resolved in his favor.
WHEREFORE, premises considered, we DENY the petition for lack of merit.
1 Under Rule 45 of the Rules of Court; rollo, pp. 9-27.
2 Penned by J. Vicente Q. Roxas, JJ. Portia Alino-Hormachuelos and Juan Q. Enriquez, Jr., concurring; id., pp. 175-184.
4 Petition, Annex "C," id., p. 51.
5 Petition, Annex "D," id., p. 52.
9 NLRC Second Division, Comm. Angelita A. Gacutan, ponente, Comms. Raul T. Aquino and Victoriano B. Calaycay, concurring; id., pp. 149-155.
10 Promulgated on June 14, 2004; id., pp. 157-158.
12 Promulgated on June 7, 2005; supra note 3.
13 G.R. No. 154798, October 20, 2005, 473 SCRA 559.
16 G.R. No. 142049, January 30, 2001, 350 SCRA 629.
18 Annex "G," Petition; rollo, p. 55.
19 Annex "H-1," Petition; id., p. 57.
20 Annex "B," Petition, pp. 29-50, 41.
21 G.R. No. 142293, February 27, 2003, 398 SCRA 301.
22 Construction in favour of labor: -All doubts in the implementation and interpretation of the provisions of the Code, including its implementing rules and regulations, shall be resolved in favour of labor.
24 G.R. No. 154797, October 20, 2005, 473 SCRA 559.
29 Respondent's Memorandum, pp. 12-13; rollo, pp. 577-578.
31 G.R. No. 154093, July 8, 2003, 405 SCRA 450.
32 G.R. No. 105521, August 26, 1999, 313 SCRA 141.
1. The employer shall continue to pay the seafarer his wages during the time he is on board the vessel.
3. Upon sign-off from the vessel fro medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of his permanent disability has been assessed by the company-designated physician, but in no case shall this period exceed one hundred twenty (120) days.
6. In case of permanent total or partial disability of the seafarer caused by either injury or illness the seafarer shall be compensated in accordance with the schedule of benefits enumerated in Section 32 of this Contract. Computation of his benefits arising from an illness or disease shall be governed by the rates and the rules of compensation applicable at the time the illness or disease was contracted.
C. It is understood that computation of the total permanent or partial disability of the seafarer caused by the injury sustained resulting from warlike activities within the warzone area shall be based on the compensation rate payable within the warzone area as prescribed in this Contract.
D. No compensation and benefits shall be payable in respect of any injury, incapacity, disability or death of the seafarer resulting from his willful or criminal act or international breach of his duties, provided, however, that the employer can prove that such injury, incapacity, disability or death is directly attributable to the seafarer.
E. A seafarer who knowingly conceals and does not disclose past medical condition, disability and history in the pre-employment medical examination constitutes fraudulent misrepresentation and shall disqualify him from any compensation and benefits. This may also be valid ground for termination of employment and imposition of the appropriate administrative and legal sanctions.
F. When requested, the principal shall furnish the seafarer a copy of all pertinent medical reports or any records at no cost to the seafarer.
G. The seafarer or his successor in interest acknowledges that payment for injury, illness, incapacity, disability or death of the seafarer under this contract shall cover all claims arising from or in relation with or in the course of the seafarer's employment, including but not limited to damages arising from the contract, tort, fault or negligence under the laws of the Philippines or any other country.
34 Id., Section 20 [B] (3).
36 Pursuant to Article 192(c)(1), Labor Code.
37 Pursuant to Section 20[B](3), POEA Standard Employment Contract.
38 Pursuant to Rule X, Section 2, Rules and Regulations Implementing Book IV of the Labor Code.

matches:
v.
v.
v.
v.
v.
v.
Art. 20
v.
v.
v.
v.


text:
Posted On February 13, 1894 by &filed under High Court, Madras High Court.
Arthur J.H. Collins, Kt. C.J. and Muthusami Aiyar, J.
1.The question referred to the Full Bench is, whether a second appeal will, lie in this case. The property in dispute belonged to the 1st and 2nd defendants. In August 1886, they sold it to one Rama Kurup, who sold it again to plaintiff in February 1889. The third defendant obtained a money decree against the first and second defendants in Original Suit No. 26 of 1888 on the file of the Subordinate Court of North Malabar and brought the property once more to sale in execution, and the fourth and fifth defendants purchased it at the court sale for Rs. 975.
2. The plaintiff preferred a claim as prior purchaser but as it was disallowed, she brought this suit to establish her title and to set aside the second sale. The court fee paid on her plaint was computed on the sale amount, viz., Rs. 975, and the Court of First Instance held that the sale in her favor was only a colorable transaction and dismissed the suit with costs. From this decision, the plaintiff preferred an appeal and paid on the memorandum of appeal, the same court fee as on the plaint. But the District Judge considered that court fee was payable on the amount of the decree in Original Suit No. 26 of 1888, viz., 2,894-8-0 and called on the plaintiff to make good the deficiency, Rs. 193, within fifteen days from the date of his order.
3. On the plaintiff failing to comply with this order, the appellate court rejected the appeal, and the preliminary objection is taken before us, that the decision of the judge is final under Section 12 of the Court Fees Act and that no second appeal can be entertained.
4. Our decision must depend on the construction which ought to be put on Section 12 of the Court Fees Act and on the provisions of the Code of Civil Procedure relating to the same matter.
5. Section 12 of the Court Fees Act enacts that every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal, shall be decided by the court in whish such plaint or memorandum of appeal, as the case may be is filed, and such decision shall be final as between the parties to the suit. If this section stood alone, the order of the judge, that court fee must be paid, not on the sale amount, but on the amount of decree in execution of which the sale took place, would be final and not open to appeal, however erroneous that order might be. But the Court Fees Act came into force on the 1st April 1870, and Act VIII of 1859 was the Code of Civil Procedure then in force. Section 81 of that enactment contemplated the valuation of a suit in two aspects and provided that “if it appears to the court that the claim is improperly valued, or being properly valued, that the plaint is written upon stamped paper of inadequate value, and the plaintiff on being required by the court to correct such improper valuation, or to supply such additional stamp as may be necessary, shall not comply with the requisition, the court shall reject the plaint.” Section 36 allowed an appeal from every order rejecting a plaint.
6. On comparing the Court Fees Act with the Code of Civil Procedure it will be observed that the material words in the one are “valuation for the purpose of determining the amount of court fee payable on a plaint”–and those in the other, are “if the claim is improperly valued, or being properly valued, the, plaint is written upon stamped paper of inadequate value.” The former contemplated the actual fee which ought to be paid, and the latter the two factors involved in computing it. Shortly after the Court Fees Act, the question how the two enactments, are to be construed together so that effect may be given to the provisions of both which relate to the same matter or are in pari materia, came under the consideration of the different High Courts in this country.
7. The first case in which the question was considered is that reported in I. L. R, 2 B, 145, Narayan Madhavrao Naik v. The Collector of Thana. The decision therein adopted the principle, that where a later Act is absolutely repugnant in one of its provisions, to a provision in a former Act, the earlier enactment is pro tanto repealed and the learned judges who took part in that case came to the conclusion that under Section 12 of the Court Fees Act the decision of the Lower Court on the amount of court fee payable was final, that the category in which a suit is to be placed was as essential an element of valuation as the subsequent arithmetical computation, by which the fee payable was ascertained, and that Section 12 of the Court Fees Act virtually repealed Section 36 of the Code of Civil Procedure.
8. We must observe here that Section 36 of the Civil Procedure Code was not mentioned in the second or third schedule of the Court Fees Act amongst the enactments wholly or partially repealed and this circumstance gave rise to a doubt as to whether Section 12 repealed Section 36, when the question came to be considered by the High Courts at Calcutta and Allahabad.
9. In determining the amount of court fee, it will be noted that there are two factors to be considered. It is first necessary to decide to which of the several classes of suits recognized by the Court Fees Act, the suit in question belongs and when the fee prescribed for any particular class of suits, is regulated by the value ” of the subject matter of the suit, the further question to be considered is, what is the valuation for the purpose of determining the amount of the fee. It was held at Calcutta in the cases reported in 19 W. R, 214, Gunga Monee Chawdhrain v. Gopal Chunder Roy, and 7 B, L. R, 663, The Collector of Sylhet v. Kalihumar Dutt and at Allahabad in the case reported in I. L. R, 1 A, 360, Chunia v. Ramdial, that when the judge makes a mistake as to the category in which the suit is to be placed, an appeal will lie under Section 36 of Act VIII of 1859; and when the error is in the computation of value, the decision of the judge is final under Section 12 of the Court Fees Act.
10. Then Act X of 1877 was passed in the place of Act VIII of 1859, and with the conflicting decisions of the different High Courts before them, the legislature adopted the principle laid down by the High Courts at Calcutta in 19 W. R, 214 and at Allahabad in I. L. R, 1 A, 360. Section 54, C. P. C, adopted the classification contained in Sections 31 and 32 of Act VIII of 1859, and referred in Clause (a) to undervaluation of the relief sought and in Clause (b) to cases in which the relief is properly valued but the plaint is written upon paper insufficiently stamped. In place of Section 36 01/2 Act VIII of 1859 which permitted an appeal from every order rejecting a plaint, was inserted only the order passed under Clause (b) among the appeasable orders specified in 3. 588 in Act X of 1877.
11. The next case to which we may refer is the leading case in this Presidency, of Annamalai Chetti v. Gloete, reported in I. L. R, 4 M, 204, wherein the learned Chief Justice after explaining the course of legislation, held that Section 12 of the Court Fees Act, which makes the decision of a court in which a plaint or memorandum of appeal is filed, final on questions relating to valuation for the purpose of determining the amount; of court fee chargeable, does not affect the question as to the class of suits in which a particular suit ought to be placed. It is thus clear that under Section 588 as if originally stood, an appeal was allowed if there is an error as to the category in which the suit ought to be placed.
12. The two cases which are referred to as being in conflict with the decision in Annamalai Ghetti v. Cloete, are the decision in Second Appeal No. 1001 of 1891 (Madras) and the case reported at I. L. R, 12 A, 154. The last mentioned decision of the Full Bench is in conflict with the Full Bench decision reported in I. L. R, 11 A, 91.
13. But in none of these cases the course of legislation and the intention of the legislature to be presumed therefrom, appear to us to have been duly considered.
14. Another question which requires to be noticed is whether the amendment Act has made any difference. Section 54, as since amended, retains the classification but orders passed under that section are defined among orders which have the force of a decree. There is no trace of an intention to enlarge or contract the right of appeal with reference to such orders. Under Section 540, an appeal will lie from every decree unless when otherwise expressly provided by this Code or by any other law for the time being in force. No appeal was allowed by Act X of 1877 from an order under Section 54, Clause (a), and there is so intention to give an appeal in such case. The Code as amended simply restores the law to the footing on which it stood before Act X of 1877 was passed and the course of decisions then passed and approved by the legislature, is that followed in I. L. R, 4 M, 204.
15. We are, therefore, of opinion that when the decision of the judge is erroneous as to the category in which the suit ought to be placed, a second appeal will lie and that in other cases, no second appeal will lie.
16. I adhere to the opinion expressed in Kanaran v. Komappan, I. L. R, 14 M, 169, which was founded on the Judgment in I. L. R, 4 M, 204 (wrongly cited in the report). I think that a question as to the category to which a suit or appeal belongs is not a question the decision of which is made final by Section 12 of the Court Fees Act.
18. This case comes on again for disposal in accordance with the ruling of the Full Bench as to the scope of Section 12 of the Court Fees Act. That ruling is that, when the question raised in second appeal refers to the category in which the suit from which it arises was placed for the purpose of determining the court fee, a second appeal will lie, On the view that the present suit was a suit for a decree declaring that the private sale to the plaintiff is valid and that the court sale in favor of the 4th and 5th defendants is invalid, it prays for two distinct declarations and the court fee payable thereon is Rs. 10 for each declaration. Viewing it as a suit for setting aside a court sale, its proper position in the category provided by Section 7 of Act VII of 1870 is similar to that of a suit (Clause VIII) to set aside an attachment of land or of an interest in land or revenue. The court, fee should, according to that section, be calculated on the amount for which the land or interest was attached unless that amount exceeds the value of the land or interest therein in which case the fee is to be computed as if the suit was for possession of such land or interest. The court fee paid on the plaint and the memorandum of appeal filed in the District Court was computed on the price for which the laud was sold and was therefore in accordance with Clause VIII. The present suit was not for setting aside the decision which led to the court sale and moreover, the plaintiff was not a party to it and we think the judge was not entitled to treat the decree as the subject matter of the suit, All that the plaintiff sought was to protect her right to the land and it is immaterial to her whether the decree is otherwise enforced or not.
19. The court fee paid in the courts below, in our opinion, being sufficient, we set aside the order of the judge and remand the case for disposal on the merits. The costs in this Court will abide and follow the result.

matches: v. v. v. v. v. v. v.


text:
Health, 152 Wn. App. 156, 216 P.3d 1039 (2009), Division I concluding that the presiding officer should have excluded evidence gathered under a warrantless inspection and seizure; Dodge City Saloon v. Wash. State Liquor Control Comm’n, 168 Wn. App. 388, 288 P.3d 343 (2012), Division II citing Seymour with approval). Division III has not yet considered applying the exclusionary rule to administrative proceedings.
Oregon courts have not excluded evidence from administrative proceedings when that evidence was obtained in violation of the Oregon Constitution (TMM v. Lake Oswego School Dist., 198 Ore. App. 572, 108 P.3d 1211 (2005)).
There are cases in both Oregon and Washington in which a court has suppressed evidence in a civil or criminal proceeding when that evidence was obtained through an administrative search in violation of the state constitution.
In Washington, the Attorney General represents state agencies in administrative hearings. RCW 43. 10.040. Notwithstanding the statutory language, lawyers employed by some agencies sometimes represent those agencies in administrative hearings; e.g., child support hearings before the Office of Administrative Hearings, and Department of Revenue lawyers in “informal appeals” (RCW 82.03.140) before the Board of Tax Appeals.
In Oregon, agencies may be represented by the Attorney General in contested case hearings (ORS 183.452( 1)). Agencies may be represented by an officer or employee of the agency if 1) the Attorney General agrees to the representation and 2) the agency rule authorizes agency personnel to appear and represent the agency in the type of hearing.
In Oregon, a party other than the agency may appear and be represented by counsel or another representative, but the non-lawyer representative may do so only in compliance with ORS 183.457( 2). The Oregon statute also limits the agencies before which non-lawyer representatives may practice by describing those agencies in ORS 183.457( 1).
before the issue comes on for hearing.
by order of the reviewing court.
where the licensee has made timely application for renewal in accordance with the rules of the agency, such license shall not be deemed to expire, despite any stated expiration date thereon, until the agency concerned has issued a formal order of grant or denial of such renewal.
In Oregon, the proponent of a fact or position in a contested case has the burden to present evidence to support that fact or position, ORS 183.450( 2), but judicial review of an order focuses on the standards of review in ORS 183.482( 7) and ( 8) without specifically imposing burdens on judicial review. In Washington, RCW 34.05.570( 1)(a) specifies the burden of demonstrating the invalidity of agency action is on the party asserting invalidity.
The Oregon and Washington APAs both provide the exclusive remedy. In Oregon, common law specifies the exclusivity rule; in Washington, the APA specifies the rule.
Oregon appellate courts have consistently held that the Oregon APA establishes a comprehensive pattern for the judicial review of administrative decisions. The APA statutes governing judicial review provide the sole and exclusive methods of obtaining judicial review (Bay River, Inc. v. Envtl. Quality Com., 26 Ore. App. 717, 720, 554 P.2d 620 (1976); School Dist. No. 48 v. Fair Dis. App. Bd., 14 Ore. App. 35, 512 P.2d 799 (1973); see also Wallace v. State ex rel. PERB, 245 Ore. App. 16, 263 P.3d 1020 (2011); Eppler v. Bd. of Tax Serv. Exam’rs, 189 Ore. App. 216, 219, 75 P.3d 900 (2003); Kerivan v. Water Res. Comm’n, 188 Ore. App. 491, 496, 72 P.3d 659 (2003)).
WSBA ADMINISTRATIVE LAW SECTION BY ATTENDING THE NORTHWEST ADMINISTRATIVE LAW INSTITUTE ON SEPT. 19–20 AT THE HILTON VANCOUVER WASHINGTON.
For the first time, practitioners and professionals from Oregon and Washington will come together to explore administrative law topics and practice issues that span both sides of the Columbia River. To register for the seminar, go to osbar. inreachce.com.


text:
The claimant was represented by Paul Ranando, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., 700 West Johnson Ave., Cheshire, CT 06410.
This Petition for Review from the January 22, 1997 Finding and Dismissal of the Commissioner acting for the Fifth District was heard September 5, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and Stephen B. Delaney.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the January 22, 1997 Finding and Dismissal of the Commissioner acting for the Fifth District. In that decision the trial commissioner concluded that the claimant’s stress did not arise out of or in the course of his employment. In support of his appeal, the claimant contends that all of the medical evidence indicates that the claimant’s stress was caused by his employment. We find no error.
The trial commissioner found the following relevant facts. The claimant was employed by the state Department of Corrections as a prison guard from 1982 until June 11, 1993. The claimant worked in the Cheshire facility from 1982 to 1987 without any stress-related symptoms. The claimant worked at the Litchfield facility from 1987 to 1989 without any stress-related symptoms. From 1989 to July 17, 1992, as a result of changed conditions at the Litchfield facility, the claimant experienced stress which arose out of and during the course of his employment. During this time the claimant continued to perform his job duties and experienced no disability. Subsequently, from July 17, 1992 to 1993, as a result of the Litchfield facility’s change to a drug rehabilitation facility, the claimant’s symptoms of stress resolved.
In 1993, the claimant was informed that he was being transferred back to the Cheshire facility because the Litchfield facility was being closed. He testified that he again began to experience insomnia and some stress. The claimant did not seek medical attention, however; instead, he pursued administrative avenues such as requesting a different facility for assignment, filing a union grievance, and seeking a leave of absence. These efforts were unsuccessful. The claimant stated that he was convinced he could not handle the stress in Cheshire, and tendered his resignation effective on June 11, 1993, the date the Litchfield facility closed. The trial commissioner concluded that the claimant’s stress did not arise out of and during the course of his employment, but instead was caused by the impending transfer.
Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the trial commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).
In order for the Workers’ Compensation Act to apply, a claimant’s injury must arise out of and in the course of his employment. Fulco v. Norwich Roman Catholic Diocesan Corporation, 27 Conn. App. 800, 807 (1992), appeal dismissed, 226 Conn. 404 (1993); Senatro v. Royal Insurance Co., 14 Conn. Workers’ Comp. Rev. Op. 44, 46, 1890 CRB-8-93-11 (May 4, 1995). Section 31-275(1) C.G.S. defines “arising out of and in the course of employment” to include accidental injuries “originating while [the employee] has been engaged in the line of his duty in the business or affairs of the employer upon the employer’s premises . . . .” Thus, in order to come within the course of employment, an injury must occur “(a) within the period of the employment; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it.” McNamara v. Hamden, 176 Conn. 547, 551 (1979). In order to arise out of the employment, the injury must occur in the course of the employment and be the result of a risk incident to the employment or the conditions under which it is performed. Tovish v. Gerber Electronics, 32 Conn. App. 595, 607 (1993), appeal dismissed, 229 Conn. 587 (1994); see also Crochiere v. Board of Education, 227 Conn. 333, 349 (1993).
Much like the termination proceedings in Fulco, the respondent’s elimination of the claimant’s position and its inability to arrange a suitable replacement job for the claimant did not constitute conduct regularly engaged in as an incident to the claimant’s employment. The commissioner’s finding that the claimant suffered emotional and mental injuries during the period of her employment, as opposed to after her employment had ended, makes no difference when one considers the reasoning behind the Fulco decision. Conduct relating to the actual or potential termination of employment is of a different nature than conduct relating to the duties of employment or incidental to that employment.
Because we find no error in the trial commissioner’s determination that the claimant’s injury did not arise out of or occur during the course of his employment, we need not address the claimant’s contention that the trial commissioner erred by failing to accept the opinion of Dr. Mark Rubenstein.

matches: v. v. v. v. v. v. v. v. v.


What is a Reciprocal Insurance Exchange?
Written by Andy Webb, Esq.
A reciprocal insurance exchange is “an unincorporated association in which members (as individuals, partnerships, trustees, or corporations) exchange contracts and pay premiums through an attorney-in-fact for the insurance of each other.” Reciprocal Exchange: Legal Definition, Merriam-Webster.com, https://www.merriam-webster.com/legal/reciprocal%20 exchange (last visited March 6, 2019). Historically, insurance exchanges were formed by individuals or corporations engaged in a similar line of business who together undertook to indemnify one another from certain kinds of risks by a mutual exchange of insurance contracts. See Lee v. Interinsurance Exchange, 50 Cal. App. 4th 694. Often times insurance exchanges were started to avoid questionable risk pools. For example, USAA (a reciprocal insurance exchange with a military focus and over ten million customers) was founded by military officers who believed they were better drivers than average civilians. See Andrew Verstein, Enterprise Without Entities, 116 Mich. L. Rev. 247, 267 (2017) (citing Paul T. Ringenbach, USAA: A Tradition of Service 1922-1997, at 20). Today, policyholders in a reciprocal insurance exchange—often known as “subscribers”—act through a common attorney-in-fact and are simultaneously both insurers and insureds. This method of providing insurance is different from mutual insurance companies because insurance exchanges do not have a corporate existence; instead, they are simply an unincorporated association of individuals who swap potential liabilities between themselves. 43 Am. Jur. 2d Insurance § 72 (2016).
Due to their unique structure, certain distinctive legal questions arise in litigation involving reciprocal insurance exchanges. One of the most relevant of these questions is where are reciprocal exchanges “citizens” for the purpose of diversity jurisdiction in Federal Court? 28 U.S.C. § 1332 allows for jurisdiction over civil matters in the Federal courts system only when the matter in controversy exceeds $75,000 and the parties are “citizens” of different states, also known as diversity jurisdiction. For the purposes of diversity jurisdiction, a corporation is a citizen of the State in which it is incorporated, as well as the State where the corporation has its principal place of business. But when, as with a reciprocal insurance exchange, the entity in question is an unincorporated association “diversity jurisdiction in a suit by or against the entity depends on the citizenship of all its members.” McKenzie v. Farmers Ins. Exchange, 2018 U.S. Dist. LEXIS 21974, *5 (S.D., 2018); see also Stagg v. Farmers Ins. Exch., 2016 U.S. Dist. LEXIS 57791 (Or. 2016).
Despite the fact that reciprocal insurance exchanges consider themselves unincorporated associations, Federal Courts are split as to whether to consider the exchanges unincorporated associations or whether to apply the traditional corporations citizenship test when determining diversity jurisdiction. Though there is a split amongst the Courts, the vast majority of Federal Courts examining the issue have found that reciprocal insurance exchanges, including large national based exchanges, are unincorporated associations and therefore, citizens of all states in which their subscribers reside. See generally McKenzie, 2018 U.S. Dist. LEXIS 21974, *9-10.
In coming to the conclusion that reciprocal insurance exchanges are unincorporated associations and share citizenship with their subscribers, Courts have looked to the specific structure and workings of the exchange. For example, the Arizona District Court stressed that in determining a reciprocal insurance exchange’s citizenship, “the analysis should be case and fact specific” where “the courts examine the entity’s own definition of a ‘member.’” James River Ins. Co. v. Cast & Assocs., 2012 U.S. Dist. LEXIS 49949 (Ariz., 2012). The Maryland District Court, for example, looked at the traditional definition of a reciprocal insurance exchange and noted, “[i]n a reciprocal insurance exchange, there is no distinction between policyholders (or ‘customers’) and insurers (or ‘underwriters’)”, indeed “one of the key identifying components of a reciprocal insurance exchange is that all of the policyholders are also providers of insurance to each other.” James G. Davis, Constr. Corp v. Erie Ins. Exch., 953 F. Supp. 2d 607, 611 (Md., 2013). Whereas, in the 2018 McKenzie case, the South Dakota Circuit Court took an even deeper look into the workings of the particular insurance company in question, concluding the company was in fact a true reciprocal insurance exchange. The Court noted subscribers in that exchange could vote to determine the members of the Board of Governors, which had significant oversight powers within the exchange and was charged with overseeing the financial affairs of the exchange. McKenzie, 2018 U.S. Dist. LEXIS 21974, *8-9. Accordingly, the McKenzie Court found that the subscribers in that case were acting as a traditional unincorporated reciprocal insurance exchange and found the Court lacked diversity jurisdiction to adjudicate the issues in the case.
Despite the great weight of authority in favor of a reciprocal insurance exchange’s status as citizens of all states in which it has subscribers, recent opinions on the issue have warned reciprocal exchanges against “‘strategic and self-serving’” applications of these diversity jurisdiction principals. McKenzie 2018 U.S. Dist. LXIS 21974, *11 (quoting Staggs, 2016 U.S. Dist. LEXIS 57791, *8, n. 3). The McKenzie court identified multiple cases where the reciprocal insurance exchange in question argued for removal from State Court to Federal Court based on diversity jurisdiction and chastised the “Defendant‘s selective invocation of federal jurisdiction [as] a waste of its insureds[’] time and resources as well as that of the courts.” Id. at *13. The Court went on to find “this apparent strategy more than ‘troubling,’ . . . and instead appears to be chicanery.” Id.
Often times in liability litigation or declaratory judgment actions, one party may have an advantage in litigating in either Federal or State Court. With three of the nation’s largest twenty property/casualty insurance companies (USAA, Farmers, and Erie) classifying themselves as reciprocal insurance exchanges, you may come across many cases involving these or other reciprocal insurance exchanges. It is important to recognize the jurisdictional limits these companies are under as a result of their structure and how that effects your litigation strategy. Additionally, due to the split in authority and harsh critiques some of these insurers have seen for taking advantage of their unincorporated association status, you may be able to fight against this status for the advantage of your insured.
 The McKenzie Court cited to seven cases where reciprocal insurance exchanges were found to be citizens of the states of their subscribers and one case where the court held that opposite and distinguished the justification cited by the Garcia case. Compare Privilege Underwriters Reciprocal Exch. v. Research Products Corp., 2017 U.S. Dist. LEXIS 21089,*10 (W.D. Ky., 2017); Staggs v. Farmers Ins. Exch., 2016 U.S. Dist. LEXIS 57791 (D. Or., 2016); Nevada Capital Ins. Co. v. Farmers Ins. Exch., 2014 U.S. Dist. LEXIS 169031, (D. Nev., 2014); James G. Davis, Constr. Corp. v. Erie Ins. Exch., 953 F. Supp. 2d 607 (D. Md. 2013); Hartfield v. Farmers Ins. Exch., 2013 U.S. Dist. LEXIS 3883 (E.D. Mich., 2013); James River Ins. Co. v. Cast & Assocs., Inc., 2012 U.S. Dist. LEXIS 49949 (D. Ariz., 2012); Farmers Ins. Exch. v. MTD Prods., 2011 U.S. Dist. LEXIS 135257 (N.D. Tex., 2011); Tyler v. Nightengale, 2007 U.S. Dist. LEXIS 89682 (D. Neb., 2007) with Garcia v. Farmers Ins. Exch., 121 F. Supp. 2d 667 (N.D. Ill., 2011).


§ 218-1 Definitions and word usage; time standards.
§ 218-2 Authorization for closing of any street.
§ 218-3 Removal of vehicles; costs to be borne by owner.
§ 218-4 Violations and penalties.
§ 218-5 Repeal of prior ordinances; effect on violations.
§ 218-6 Parking regulations not exclusive.
§ 218-7 Parking prohibited during state of emergency.
§ 218-8 Temporary parking prohibition for snow plowing and removal.
§ 218-9 Stopping or standing prohibited during certain hours on certain streets.
§ 218-10 Parking time limited on certain streets.
§ 218-11 Parking prohibited at all times on certain streets.
§ 218-12 Parking prohibited during certain hours on certain streets.
§ 218-13 Parking prohibited for certain class of motor vehicles.
§ 218-21 No turn on red.
§ 218-25 Lane use restrictions.
§ 218-27 Borough of Buena Forest development.
§ 218-29 Handicapped parking on-street.
§ 218-30 Handicapped parking on municipal parking lots and Board of Education property.
§ 218-31 Handicapped parking on private property open to the public.
§ 218-32 Handicapped parking on all other private property.
§ 218-33 Signs, pavement marking, installation and maintenance.
§ 218-34 Movement of traffic on municipal property.
§ 218-35 Movement of traffic on private property open to the public.
§ 218-38 Adoption of standards.
§ 218-41 Hours of road work.
§ 218-42 Road closings and detours.
§ 218-46 Payment for services rendered by traffic directors.
§ 218-47 Insurance for traffic directors.
§ 218-48 Indemnification and hold harmless.
§ 218-49 Violations and penalties.
Farm equipment — See Ch. 112.
Streets and sidewalks — See Ch. 195.
Taxicabs — See Ch. 209.
Traffic control in construction and maintenance zones — See Ch. 213.
Motor-driven vehicles — See Ch. 221.
Vehicle towing and storage — See Ch. 223.
Unregistered vehicles — See Ch. 224.
Official time standards. Whenever certain hours are named in this chapter, they shall mean either Eastern Standard Time or Eastern Daylight Savings Time as may be in current use.
The Director of the Department of Public Safety (Director) or, in his absence, disability or inability to act, the Officer in Charge (OIC) or, in the event of his absence, disability or inability to act, then the Mayor of the municipality, is hereby authorized to provide by regulation for the closing of any street or portion thereof to motor vehicle traffic on any day or days during specified hours, on any day or days whenever he finds that such closing is necessary for the preservation of the public safety, health or welfare for a period not exceeding 48 consecutive hours.
Any regulations promulgated by the Director/OIC and in accordance with Subsection A above shall provide for the posting of proper warning signs of such closing of any street or portion thereof during the time the same is closed in pursuance thereof.
Any regulation adopted that mandates the closing of any street for a period greater than 48 consecutive hours shall not become effective unless and until it has been submitted to and approved by the Commissioner of the Department of Transportation of the State of New Jersey.
Any vehicle parked in violation of this chapter shall be deemed a nuisance and a menace to the safety and proper regulation of traffic, and any Buena Borough Police Officer may provide for the removal of such vehicle. The owner shall bear the reasonable costs of the removal and storage which may result from such removal before regaining possession of the vehicle.
Unless another penalty is expressly provided by New Jersey statute, every person convicted of a violation of a provision of this chapter or any supplement thereto shall be liable to a penalty in accordance with § 1-15 of the Code of the Borough of Buena.
All former traffic ordinances of the Borough of Buena are hereby repealed, and all ordinances or parts of the ordinances in conflict with or inconsistent with the provisions of this chapter are hereby repealed, except that this repeal shall not affect or prevent the prosecution or punishment of any person for any act done or committed in violation of any ordinance hereby repealed prior to the taking effect of this chapter.
The provisions of this chapter imposing a time limit on parking shall not relieve any person of the duty to observe other, more restrictive provisions prohibiting or limiting the stopping or standing or parking of vehicles as set forth in N.J.S.A. 39:4-8, N.J.S.A. 39:4-197 and any other New Jersey statute or as hereinafter provided.
In accordance with N.J.S.A. 39:4-8, 39:4-197.3 and 40:67-16.9, upon the declaration of an emergency, there shall be no parking upon streets or sections of streets where temporary "emergency no parking" signs are displayed. The Director/OIC or, in his absence, the ranking police officer is authorized to declare an emergency and to direct the posting of "emergency no parking" signs when weather conditions, accidents, road construction, fire or public celebrations dictate or require avoidance of hazards or other conditions which interfere with the free flow of traffic. Notification that "emergency no parking" signs are being or will be posted shall be given to the operator or owner of any vehicle which has been parked prior to the posting of the signs.
The effectiveness of this section is contingent upon the signs being erected as required by law.
Removal. Whenever snow has fallen and the accumulation is such that it covers the streets or highways, an emergency shall exist and no vehicle shall be parked on the streets or highway portions thereof indicated. The above parking prohibitions shall remain in effect after the snow has ceased until the streets have been plowed sufficiently and to the extent that parking will not interfere with the normal flow of traffic.
No person shall park a vehicle for longer than the time limit between the hours listed on any day (except Sundays and public holidays) upon any of the streets described.
No motor vehicle exceeding 20 feet in length, or seven feet in width, or eight feet in height, or exceeding a gross weight in excess of 12,000 pounds shall be parked upon any alley or street within the Borough, except as provided herein. This section is not intended to prohibit the parking of motor vehicles commonly known as pickup trucks with or without cargo caps.
Adjacent resident exception. This parking restriction shall not apply to vehicles actively engaged in delivering products or rendering services requested by a property owner or resident adjacent to any alley or street.
Emergency vehicle exception. This parking restriction shall not apply to vehicles actively engaged in rendering emergency services such as ambulances, fire trucks and vehicles plowing snow.
Loading and unloading exception. This parking restriction shall not apply to vehicles actively engaged in the loading or unloading of passengers, merchandise for a business or materials for a job site during the period of construction.
Public improvement exception. This parking restriction shall not apply to vehicles owned, operated or authorized by the City, county or state which are actively engaged in the installation, maintenance or repair of public improvements or streets or the rendering of other governmental services.
Public utility exception. This parking restriction shall not apply to vehicles owned or operated by a public utility company actively engaged in the installation, maintenance or repair of public utilities.
Pursuant to N.J.S.A. 40:67-16.1, the streets or parts of streets as described are hereby designated as routes for vehicles over four tons. All trucks having a total combined registered gross weight of vehicle plus load in excess of four tons shall be excluded from all streets, except from those streets listed which form a part of the system of truck routes. Vehicles will be permitted on all streets for the purpose of the pickup and delivery of materials.
Vehicles over the registered gross weight are hereby excluded from the streets or parts of streets described, except for the pickup and delivery of materials on such streets.
The following described streets or parts of streets are hereby designated as one-way streets in the direction indicated. Parking on these streets will be permitted on the sides indicated below.
Pursuant to the provisions of N.J.S.A. 39:4-140, the streets or parts of streets described are hereby designated as through streets. Stop signs shall be installed on the near-right side of each street intersecting the through street except where yield signs are provided for in the designation.
No person shall make a right turn on the red signal at any location listed.
The locations described are hereby designated as loading. No person shall park a vehicle in said location during the times indicated other than for the loading or unloading of goods and materials.
The lane locations described are designated as lane use reservations and traffic shall move as indicated.
The speed limit for both directions of traffic along the streets or parts thereof, described below and made part of this chapter, are hereby established at the rate of speed indicated.
Regulatory and warning signs shall be erected and maintained to effect the above designated speed limits.
In accordance with the provisions of N.J.S.A. 39:4-197, 39:4-197.6, 39:5A-1, 39:5A-4 and 40:48-2.46, the following street locations as listed are designated as handicapped parking spaces. Such spaces are for use by persons who have been issued special identification cards or plates or placards by the Division of Motor Vehicles pursuant to N.J.S.A. 39:4-205, or a temporary placard issued by the Director/OIC and then only when using a motor vehicle on which there is displayed a certificate for which a special vehicle identification card has been issued pursuant to N.J.S.A. 39:4-206. No other person shall be permitted to park in these spaces.
In accordance with the provisions of N.J.S.A. 39:4-197, 39:4-197.6, 39:5A-1, 39:5A-4 and 40:48-2.46, the following off-street municipal parking yards and Board of Education property as listed are designated as handicapped parking areas. Such spaces are for use by persons who have been issued special identification cards, plates or placards by the Division of Motor Vehicles, or a temporary placard issued by the Director/OIC. No other person shall be permitted to park in these spaces.
In accordance with the provision of N.J.S.A. 40:48-2.46, the following off-street parking yards as listed are designated as handicapped parking areas. Such spaces are for use by persons who have been issued special identification cards, plates or placards by the Division of Motor Vehicles or a temporary placard issued by the Director. No other person shall be permitted to park in these spaces.
In accordance with the provisions of N.J.S.A. 39:5A-1, the following off-street parking yards as listed are designated as handicapped parking areas. Such spaces are for use by persons who have been issued special identification cards, plates or placards by the Division of Motor Vehicles, or a temporary placard issued by the Director. No other person shall be permitted to park in these spaces.
The owners of the premises referred to in the above sections shall provide and install signs and pavement markings for use by handicapped persons, which signing and marking shall be in accordance with the Manual on Uniform Traffic Control Devices. The cost of the procurement and installation of the signs to be paid by the owner of said property. The owner shall, subsequent to installation, maintain such signs and pavement markings in good condition at no cost or expense to the Borough. The owner shall be responsible for the repair and restoration or replacement of same.
Public parking and police vehicle parking, as depicted with signage.
The purpose of this article is to establish controls and regulations directed toward the safe and expeditious movement of traffic through construction and maintenance zones throughout the Borough of Buena and to provide for the safety and compensation of the workforce performing these operations.
The Borough of Buena Council hereby finds and declares that problems of traffic control occur when traffic must be moved through or around street construction, maintenance operations and utility work, above and below ground, which requires blocking streets and obstructing the normal flow of traffic, and that such obstructions are or can become dangerous when not properly controlled. In order to better promote the public health, safety, peace and welfare, it is necessary to enact such guiding principles whereas the aforementioned potential problems may be prevented and avoided.
The Borough of Buena Council in the County of Atlantic and State of New Jersey does hereby adopt the current Manual on Uniform Traffic Control Devices, as published by the American Traffic Safety Services Association (ATSSA) hereafter known as "MUTCD," except as hereby supplemented and amended, as it controls and regulates whenever construction, maintenance operations or utility work obstructs the normal flow of traffic. A person, contractor or utility that fails to comply with the provisions of MUTCD while performing such work is in violation of this article.
Statutory authority. In accordance with the provisions of N.J.S.A. 39:4-197.3, the governing body of the Borough is authorized to adopt special traffic regulations by resolution when declaring an emergent or temporary condition that warrants special traffic regulations. These regulations may be provided for a period of time not to exceed three months from the effective date of the resolution. Notice of these regulations shall be given as required by N.J.S.A. 39:4-198. Approval of an emergency resolution is required from the Commissioner of Transportation to be effective pursuant to N.J.S.A. 39:4-202.
Director authorized to perform certain actions.
Pursuant to N.J.S.A. 39:4-98.2, the Director is designated as the official authorized to reduce the regular speed limit on streets under local jurisdiction for up to 72 hours for the purpose of street maintenance and repairs.
Traffic detours shall be permitted and traffic directors shall be posted at all construction or maintenance sites when it is determined by the Director/OIC that it is necessary for the health, safety and welfare of the public.
It shall be the responsibility of the person, contractor, or utility wishing to conduct work on, under or above the roadway to contact the Director/OIC or his designee of the Borough of Buena Police Department in order to arrange a preconstruction meeting to submit plans for the safe movement of traffic during the period of construction of work. The Director/OIC or his designee has the authority to dictate the number of certified police officers required to ensure the safe movement of traffic in the construction zone. Any person, contractor or utility who fails to comply with this article prior to the start of such work and whose plans are not approved by the Director/OIC or his designee of the Borough of Buena Police Department is in violation of this article.
The person, contractor or utility shall provide the Borough of Buena Police Department with at least two emergency contact phone numbers to be called in the case of any emergency at the construction or maintenance site prior to the start of any work. If for any reason the emergency contact person cannot be reached or if the emergency person does not respond to the call from the Borough of Buena Police Department to correct the hazardous situation, the Borough may respond and correct such hazardous conditions. The reasonable fees for such emergency service by the Borough shall be charged to the person, contractor or utility responsible for such conditions.
Generally, there shall be no construction, Borough maintenance operations or utility work on any roadway in the Borough before the hour of 7:00 a.m. or after 5:00 p.m. This time limit may be adjusted to permit work prior to 7:00 a.m. or after 5:00 p.m. by the Director/OIC, or his designee, of the Borough of Buena Police Department, if reasonable conditions apply and after thoroughly reviewing such request.
Road closings and/or traffic detours shall not be permitted unless approved by the Director/OIC or his designee of the Borough of Buena Police Department.
Traffic directors, i.e., those police officers certified by Rutgers University as knowledgeable of the Manual on Uniform Traffic Control Devices, shall be posted at all construction or maintenance sites when determined by the Director/OIC, or his designee, that same is necessary to provide for the safe and expeditious movement of traffic.
The Director/OIC or his designee shall have the authority to stop work, including effecting the removal of equipment and vehicles, stored material within the street right-of-way, backfilling of open excavations and/or other related work, in order to abate any nuisance and/or safety hazard or for any violation of this article. The Borough may respond and correct any such hazardous and/or nuisance conditions. The reasonable fees for such emergency service by the Borough shall be charged to the person, contractor or utility responsible for such conditions.
No materials, vehicles or equipment are to be placed in the roadway or sidewalk area until all construction, signs, lights, devices and pavement markings are installed.
Payment for all certified police officers working all construction highway details for directing the appropriate movement of traffic flow may be coordinated by the Director/OIC or designee. The payment shall be the appropriate rate designated by the Police Department with an additional appropriate percentage fee for fringe benefits, to include but not be limited to social security, unemployment insurance, workers' compensation and an administrative fee of 5% added to the subtotal for all of the expenses that are required. The aforementioned fees shall be waived for nonprofit organizations, local government, local government authorities or other special districts of government and any other just cause and determined by the Director/OIC and affirmed through resolution by Borough Council.
Rate: $50 per hour to be paid to each officer from 7:00 a.m. to 5:00 p.m.
Hours worked between 5:00 p.m. and 7:00 a.m. will be at a rate of $60 per hour.
Administrative fee: $10 per hour for each officer to be retained by the Borough to recover costs associated.
Minimum block of time: A minimum of four hours will be paid for each officer working each detail regardless of the actual time worked.
Special administrative cost. In the event a serious personnel matter occurs requiring the intervention of the personnel officer of the Borough of Buena, Subsections A(1), (2) and (3) shall apply to compensation of the personnel officers regardless of his/her non-sworn status.
In the event the Director/OIC or designee determines that the use of a police motor vehicle is necessary, a fee of $50 per day or any part thereof for the use of said vehicle will be charged and made payable to the Borough of Buena. Reference is made to Borough of Buena Code concerning third-party Police Department overtime.
All payments for road detail assignments shall be paid in advance through an off-duty police escrow account to be known as the "police overtime account," and all funds collected for services rendered shall be paid by and through such account. Reference is made to Borough of Buena Ordinance for third-party overtime. The Director/OIC with consent of the Mayor may waive the prepayment requirement or may amend prepayment requirement to partial deposit.
The person, contractor or utility company shall provide the Borough of Buena Administrator a certificate of insurance naming the Borough of Buena as an additional insured on a general liability insurance policy having policy limits not less than $1,000,000 per occurrence.
Any person, contractor or utility company shall complete an application for a traffic director, which said application shall contain an agreement to indemnify and hold harmless the Borough of Buena for any claims or actions brought as a result of the use of Borough of Buena police officers by said party, including all attorney fees.
Any person, contractor, or utility who commits a violation of this article shall, upon conviction thereof, for the first offense, pay a fine of not less than $500 nor more than $1,000 and/or may be imprisoned in the county jail for a term not exceeding 90 days, or both; for a second offense, upon conviction thereof, pay a fine of not less than $1,000 nor more than $2,500 and/or may be imprisoned in the county jail for a term not exceeding 90 days, or both.
A separate offense shall be deemed committed on each day or on which each violation occurs or continues to occur.


text:
We give the generalization of the method of the space-time description of particle creation by a gravitational field for a scalar field with nonconformal coupling to the curvature. The space-time correlation function is obtained for a created pair of the quasi-particles, corresponding to a diagonal form of the instantaneous Hamiltonian. The case of an adiabatic change of the metric of homogeneous isotropic space is analyzed. We show that the created pairs of quasi-particles in de Sitter space should be interpreted as pairs of virtual particles.
A. A. Grib, S. G. Mamayev, and V. M. Mostepanenko, Vacuum Quantum Effects in Strong Fields (Energoatomizdat, Moscow, 1988, in Russian; English translation: Friedmann Lab. Publ., St. Petersburg, 1994).
A. A. Grib and Yu. V. Pavlov, Int. J. Mod. Phys. D 11, 433 (2002); Int. J. Mod. Phys. A 17, 4435 (2002); Grav. & Cosmol. 12 159 (2006); Grav. & Cosmol. 14 1 (2008).
A. A. Grib and S. G. Mamayev, Yadernaya Fizika 10, 1276 (1969); Sov. J. Nucl. Phys. 10, 722 (1970).
S. G. Mamayev and N. N. Trunov, Yadernaya Fizika 37, 1603 (1983); Sov. J. Nucl. Phys. 37, 952 (1983).
V. B. Bezerra, V. M. Mostepanenko, and C. Romero, Int. J. Mod. Phys. D 7, 249 (1998).
L. P. Grishchuk and V. M. Yudin, J. Math. Phys. 21, 1168 (1980).
X. S. Mamaeva and N. N. Trunov, Teor. Mat. Fiz. 135, 82 (2003); Theor. Math. Phys. 135, 520 (2003).
Yu.V. Pavlov, Teor. Mat. Fiz. 126, 115 (2001); Theor. Math. Phys. 126, 92 (2001)].
S. A. Fulling, Gen. Rel. Grav. 10, 807 (1979).
[Engl. transl.: Yu. V. Pavlov, Teor. Mat. Fiz. 140, 241 (2004); Theor. Math. Phys. 140, 1095 (2004)].
C. Lanczos, Ann. Math. 39, 842 (1938).
T. D. Newton and E. P. Wigner, Rev. Mod. Phys. 21, 400 (1949).
S. S. Schweber, An Introduction to Relativistic Quantum Field Theory (Row, Peterson and Co, New York, 1961).

matches: V. V. V. V. V. V.


text:
The Pringle case (Case C-370/12 Pringle) decided today is arguably the case of the year. In an accelerated procedure, the full court (all 27 judges!) answered a number of questions referred by the Irish Supreme Court on the competence of EU Member States under EU law to conclude the ESM Treaty. The ESM Treaty is a treaty under public international law concluded by the members of the eurozone to create a permanent crisis mechanism to safeguard the stability of the euro area. It is the latest answer to the ongoing sovereign debt crisis (dubbed the ‘eurocrisis’) experienced by a number EU Member States that have the euro as a currency.
Despite the good intentions of its creators, the idea of setting up a permanent international body competent to grant financial assistance (amongst other things) to eurozone members in financial difficulties goes somewhat against the foundations of the Economic and Monetary Union, which aims at ensuring price stability through sound government budgets. It is thus not surprising that a case was brought before the CJEU so that the latter had to rule on whether Member States can actually do this under EU law.
There was perhaps little doubt about the outcome of this case. The stakes are too high for the CJEU to send the ESM back to the drawing table. Yet, the CJEU had to engage in some serious legal acrobatics to confirm the competence of the EU Member States to conclude the ESM Treaty. The judgment has many very interesting aspects (especially as regards the competence of Member States to conclude international agreements), but I’ll focus in this post on the one that’s politically the most fun: the compatibility of the ‘no bail-out’ clause (article 125 TFEU) with the ESM (‘bailout?’) Treaty.
According to the CJEU, the aim of the article ‘is to ensure that the Member States follow a sound budgetary policy’, and the prohibition contained therein is to ensure that Member States ‘remain subject to the logic of the market when they enter into debt, since that ought to prompt them to maintain budgetary discipline. Compliance with such discipline contributes at Union level to the attainment of a higher objective, namely maintaining the financial stability of the monetary union.’ Accordingly, Member States are prohibited by article 125 TFEU from granting financial assistance to other Member States where this would result diminish the recipient Member State’s incentive ‘to conduct a sound budgetary policy’ (paras. 135-136).
In the other corner we have the ESM Treaty. The ESM, with its initial lending capacity of €500 billion, can provide various forms of funding and financial support to contracting parties that are having severe financing problems. Such support is, however, subject to strict conditionality (in the form of macroeconomic adjustment programmes), and can only be granted if it is indispensable to safeguard the financial stability of the eurozone as a whole. Thus, the ESM provides for funds to those members whose budgetary policy has not been particularly sound. But at the same time, the ESM does try to ensure that their policies get back on track. Is such a system compatible with article 125 TFEU?
However, Article 125 TFEU does not prohibit the granting of financial assistance by one or more Member States to a Member State which remains responsible for its commitments to its creditors provided that the conditions attached to such assistance are such as to prompt that Member State to implement a sound budgetary policy.
According to the CJEU, this was the case with the ESM Treaty. First of all, the instruments of the ESM ‘demonstrate that the ESM will not act as guarantor of the debts of the recipient Member State. The latter will remain responsible to its creditors for its financial commitments.’ The granting of financial assistance in the form of a credit line does not imply assumption of debts by the ESM, but rather ‘amounts to the creation of a new debt, owed to the ESM by that recipient Member State, which remains responsible for its commitments to its creditors in respect of its existing debts’. Nor does the buying of state bonds amount to the assumption of debt, since the recipient Member State will still have to ‘repay the debts in question’. To that the CJEU added, quite remarkably, that the price of those bonds ‘may be significantly different from the value of the claims contained in those bonds, since the price depends on the rules of supply and demand on the secondary market of bonds issued by the ESM Member concerned.’ And of course, the ESM has no influence on those prices….
In any case, the CJEU continued by emphasising that stability support is only granted subject to strict conditionality and when such support ‘is indispensable to safeguard the financial stability of the euro area as a whole’. In the CJEU’s view, the measures are designed to make sure that the receiving Member State implements sound budgetary policies. The CJEU also stated that in relation to the measures on capital calls, ESM Members remain bound to pay their part of the capital.
Despite these crystal clear statements made by the CJEU, the question is whether this is in fact the reality as many have argued that the debts of eurozone members in difficulties should be forgiven or will be forgiven. The CJEU says that there is no assumption of debt whatsoever of the part of the ESM and the receiving Member States are subject to strict conditionality. If the governments of Greece, Spain, Ireland and Portugal are reading the judgment, they have been thoroughly warned that the CJEU is not on the side of those who believe that their debts should be forgiven. The CJEU is seems clear on what the obligations under the ESM Treaty entail, and litigators will have this judgment to remind the CJEU of it.
Hi Sébastien, another interesting matter indeed, Armstrong on eutopialaw discusses it a bit. I believe there will be a post on that soon here too, so stay tuned ;).

matches: CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU


Appealed from the Davidson County Chancery Court, Frank F. Drowota, III.
David M. Pack, Atty. Gen. of Tenn., Milton P. Rice, Deputy Atty. Gen., Nashville, for appellant.
P.V. Jackson, III, Nashville, for appellees.
Appellees instituted this suit seeking to recover certain penalties on gross receipts taxes which penalties were paid under protest.
Appellees are a chain of corporations engaged in the vending machine business. They have elected to pay taxes on the gross receipts of their business in lieu of privilege and sales taxes.
On August 4, 1970, appellees paid appellant a sum equal to one-fourth of their gross receipts privilege tax for the fiscal year beginning July 1, 1970, and ending July 1, 1971. They paid interest of six per cent per annum for the four day delinquency and also a penalty of ten per cent on the amount of one quarter of the annual tax.
Thereafter, appellant advised appellees because of their failure to remit the first quarterly installment of their 1970 gross receipts privilege tax on August 1, 1970, they had forfeited their option to pay the tax on a quarterly basis and were required to pay the entire amount of the 1970-71 tax, plus a penalty of ten per cent and interest of six per cent per annum for the four days of delinquency.
Appellees excepted and refused to comply. However, on December 15, 1970, appellees paid franchise and excise taxes for the fiscal year ending September 1, 1970. The appellees requested a credit for such franchise and excise tax payments against the annual gross receipts privilege tax demanded by appellant, prior to the computation of any penalties thereon. Appellant declined to grant such a credit.
On June 24, 1971, appellees paid appellant under protest the sum of $6,320.65. Thereafter, this suit was filed.
"Rules and regulations not inconsistent with said chapters when promulgated by the commissioner, and approved by the attorney-general, shall have the force and effect of law."
"Any person desiring to exercise the option of paying his tax on a quarterly installment basis under provisions of Section 67-4318, Tennessee Code Annotated, shall make timely payment of the first installment on or before the first day of August and failing to make such timely payment, together with any unpaid gross receipts privilege tax due for a prior period, shall not have the option of paying his tax on a quarterly installment basis, but shall be required to pay the entire amount of the annual tax, plus a penalty of ten per cent (10%) of the annual tax, together with interest at the rate of six per cent (6%) per annum on the tax and penalty."
The Chancellor found the aforesaid rule and regulation was inconsistent with T.C.A. Section 67-4318. He, therefore, found appellees had not forfeited their right to pay the tax on a quarterly basis and gave judgment against appellant for the sum paid under protest. He did not reach the question of credit for the franchise and excise tax payments.
Appellant perfected an appeal to this Court and insists the Chancellor erred in holding a taxpayer may avail himself of the privilege of paying the gross receipts privilege tax in quarterly installments, as provided by T.C.A. § 67-4318, after being in default on August 1 of the taxable year.
"Any person failing to file report and pay the tax found to be due in accordance with the provisions of §§ 67-4315 — 67-4323 on or before August 1 of any year shall, as a penalty for such failure, pay an additional amount of ten per cent (10%), together with interest at the rate of six per cent (6%) per annum on the total amount of the tax and penalty incurred. Provided, that any person subject to the gross receipts tax imposed by chapters 40 to 43, inclusive, of this title shall have the option of paying his tax on a quarterly instalment basis by paying one-fourth (1/4) of the tax due on the first day of August, and an additional one-fourth (1/4) of the tax that may be due on each of the first days of November, February and May; provided further, that any person so exercising this option shall be required to pay interest at the rate of six per cent (6%) per annum on any payment made after the first day of August under the foregoing provisions. Any person failing to pay the appropriate instalment of this tax when it shall become due, shall be required to pay as a penalty for such failure, a penalty of ten per cent (10%) of the instalment in addition to interest at the rate of six per cent (6%) per annum on the tax and penalty."
In reaching a proper construction of the statute, it should be pointed out that the tax here involved is an annual tax and not a quarterly tax. Automatic Merch. Co. v. Atkins, 205 Tenn. 547, 327 S.W.2d 328 (1959); T.C.A. § 67-4317. The gross receipts privilege tax is for the fiscal year beginning on July 1 of the taxable year and ending on July 1 of the following year "measured by gross receipts for the preceding fiscal or calendar year" and payable on August 1 of the taxable year. T.C.A. Section 67-4317.
The legislative intent controls the construction of statutes. A statute should be construed as a whole and "we should and will assume the legislature used each word in a statute purposely and the use of these words conveyed some intent and had a meaning and a purpose." Anderson, Fish and Oyster Co. v. Olds, 197 Tenn. 604, 277 S.W.2d 344 (1955).
It is apparent the legislative intent of T.C.A. Section 67-4318 was to permit a taxpayer of the gross receipts privilege tax to either pay the entire tax on or before August 1 of the taxable year; or, at his option, to pay the tax in quarterly installments by paying one-fourth of the tax due on the first day of August, etc., "under the foregoing provisions."
It is clear from the language of both T.C.A. Sections 67-4317 and 67-4318 that the entire amount of the tax is due and payable on August 1 of the taxable year unless the taxpayer exercises the option to pay quarterly by paying one-fourth of the annual tax on or before August 1 of the taxable year.
The Chancellor evidently lifted the words "any person so exercising this option shall be required to pay interest at the rate of six per cent (6%) per annum on any payment made after the first day of August" out of context to arrive at his construction the option was not forfeited.
"Under the statute the complainants' right to exercise their option of paying taxes on a quarterly basis for the tax year 1970-1971 was not forfeited when complainants paid the first quarter of their gross receipts taxes on August 4, 1970. Under the statute complainant taxpayers were required to pay interest at the rate of six per cent (6%) per annum for four days plus a penalty of ten per cent (10%) of the total tax due on the first quarter, this complainants have done."
The meaning of a statute is to be determined, not from special words in the single sentence or sections, but from the statute taken as a whole and viewing the legislation in light of its general purposes. Cummings v. Sharp, 173 Tenn. 637, 122 S.W.2d 423 (1938).
It is clear from reading the entire statute the only payment to be made after the first day of August of the taxable year by a taxpayer who has failed to make any payment on the first day of August is the entire tax, plus a penalty of ten per cent and interest of six per cent on the total amount of the tax and penalty.
It is, also, clear a taxpayer who has exercised the option to pay on a quarterly basis by paying the first installment on the first day of August is required to pay interest on the three remaining installments when due and on default of any remaining installment when due a penalty of ten per cent in addition to interest of six per cent on the tax and penalty.
This is readily seen when the words "under the foregoing provisions" are added to the words quoted above as having been lifted from context.
Moreover, to construe the statute as the Chancellor has would render the first sentence of the statute meaningless.
Such construction also runs afoul of T.C.A. Section 67-4317 and the opinion of this Court in Automatic Merch. Co. v. Atkins, supra, which declares the tax to be an annual tax.
Under the construction placed on the statute by the Chancellor, the taxpayer could exercise the option any time after the first day of August of the taxable year and thereby destroy the legislative intent.
The decree of the Chancellor is reversed and the cause remanded for determination of the issue of whether appellees are entitled to a credit against their gross receipts tax liability for having paid their franchise and excise taxes for the fiscal year ending October 1, 1970.
Appellees will pay the costs of this appeal.
DYER, C.J., McCANLESS, J., and JENKINS, Special Justice, concur.