State ex rel. Nilsen v. Hayes

530 P.2d 1264, 20 Or. App. 135, 1975 Ore. App. LEXIS 1572
CourtCourt of Appeals of Oregon
DecidedJanuary 20, 1975
StatusPublished
Cited by1 cases

This text of 530 P.2d 1264 (State ex rel. Nilsen v. Hayes) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Nilsen v. Hayes, 530 P.2d 1264, 20 Or. App. 135, 1975 Ore. App. LEXIS 1572 (Or. Ct. App. 1975).

Opinion

THORNTON, J.

This case involves a provision of our labor code which authorizes the State Labor Commissioner to bring supplementary judicial proceedings against an employer where that employer has failed to pay wages due his employes.

The state appeals from an order of the circuit court finding that defendant Hayes was not in contempt of court for violating the terms of the decree enjoining him from doing business until such time as he furnished [137]*137a bond for payment of wages becoming dne in the future.

ORS 652.340 (2), the section involved, provides:

“If within 10 days after demand for such bond the employer fails to provide the same, the commissioner may commence a suit against the employer in the circuit court of appropriate jurisdiction to compel him to furnish such bond or cease doing business until he has done so. The employer shall have the burden of proving the amount thereof to be excessive.”

The essential facts are as follows: Defendant Hayes had previously been engaged in business as Oregon Statewide Security, Inc., an Oregon corporation. The corporation failed to pay some of its employes. These employes thereafter assigned their claims to the Labor Commissioner for collection. When the claims were not paid, the state, pursuant to ORS 652.340, brought a suit to enjoin the defendants from doing business within the state of Oregon, and particularly from engaging the services of any employes. Defendant Hayes was personally served with summons and complaint, but made no appearance. A default decree was entered which provided essentially as follows:

“* * * The Defendant, Robert Hayes, aka Bob Hayes, shall furnish unto the Commissioner of the Oregon Bureau of Labor a good and sufficient bond approved by him in the sum of $3,000.00 and Defendant, Oregon Statewide Security, Inc., shall furnish unto the Commissioner of the Oregon Bureau of Labor a good and sufficient bond approved by him in the sum of $3,500.00 payable to the State of Oregon conditioned that the said Defendants will, for a period of six months from the date of approval of such bond by the said Commissioner, conduct their business whether as an individual, a partnership or through or by a corporation and pay [138]*138their employees in accordance with the laws of the State of Oregon.
“* * # Until said bond is posted and approved as set forth above Defendants, Bobert Hayes, aka Bob Hayes, and Oregon Statewide Security, Inc., shall be and hereby are enjoined from doing any business, directly or indirectly, within the State of Oregon whether as an individual, a partnership or through or by a corporation, and particularly from engaging the personal services of any employee.

Thereafter the state filed a motion and affidavit for an order requiring defendant to show cause why he should not be held in contempt of court and punished accordingly for violating the terms of the above decree. The affidavit alleged that defendant had failed to provide the required bond, and that he “is presently doing business as one of the liquor licensees and one of the proprietors of The Elbo Boom Tavern in Molalla, Oregon and has engaged the personal services of an employee.”

Based upon the above motion and affidavit the circuit court signed the order requiring defendant

“* # * to show cause, if any there be, why he should not be found guilty of contempt of court, and punished accordingly, for carrying on a business in Oregon in violation of the Decree in force and effect in this case and for engaging the personal services of an employee in violation of said Decree.”

When the contempt matter came on for hearing on the above show cause order, defendant Hayes through his counsel conceded that he was presently operating the “Elbo Boom Tavern” located in Molíala, as co-proprietor, under license from the Oregon Liquor Con[139]*139trol Commission (OLCC), but asserted he was not in contempt of the decree because he had no paid employes.

The state offered the following evidence: That two different couples had recently worked at the tavern; that four OLCC printed application forms signed by defendant Hayes were posted on the wall behind the bar of the tavern, representing that both couples had applied to the OLCC for permits to serve drinks at the tavern. The state contends that the posted permits tend to prove that the applicants were also employed by defendant Hayes.

The evidence on the part of defendant Hayes was to the effect that no wages of any kind were paid to any of the above persons, and that the signing of two of the applications for the service permits, which were posted on the wall, was as an accommodation to the people concerned, and that no employment resulted therefrom.

At the conclusion of the taking of the above evidence, counsel for the state made the following argument to the court:

“Complaining about the amount of the bond and alleging that the injunction is overbroad in reference to its statute, I think, is engaging in a collateral attack on the decree, which is improper here and not proper matter for the Court to consider.
“If the Court does not take that view of it, I would request permission to read very shortly from the applicable statute, [ORS] 652.340, Sub 2 * *

The trial court did not accept the state’s argument that defendant was engaging in a collateral attack upon the prior decree. Instead, the court found that defend[140]*140ant Hayes was not employing any persons at the tavern and held:

“(1) The business activities of the Defendant, Eobert Hayes, * * * are not of the type contemplated by the applicable statute, OES 652.340 (2). OES 652.340 (2) does not prohibit mérely being in business but is addressed only to situations wherein the person in business will at the same time be an employer.
“ (2) The Defendant, Eobert Hayes, has not violated the Decree herein and consequently is not guilty of a contempt of this court.”

Defendant did not appear or file a brief on this appeal. As we understand the defendant’s position, he does not contend that he is not engaged in doing business in this state. Eather he contends that OES 652.-340 (2) does not apply because he has no paid employes.

The state contends that the trial court’s interpretation of OES 652.340 (2) is in effect inserting the phrase “as an employer” after “doing business”; that the decree upon which the contempt action was based specifically enjoins the defendant from “doing any business, directly or indirectly, within the State of Oregon whether as an individual, a partnership or through or by a corporation, and particularly from engaging the personal services of any employee.” Therefore, the defendant by engaging in the business of operating the “Elbo Eoom Tavern” violated the express terms of the injunction whether or not he engaged the personal services of an employe in that operation.

The term “doing business” is not defined in OES ch 652, nor has its meaning as used in OES 652.340 (2) been the subject of judicial definition by the appellate courts of this state, so far as we can determine.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dunlap v. Dickson
754 P.2d 27 (Court of Appeals of Oregon, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
530 P.2d 1264, 20 Or. App. 135, 1975 Ore. App. LEXIS 1572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-nilsen-v-hayes-orctapp-1975.