BIENNIAL REPORT OF THE ATTORNEY GENERAL 569

of public hearing, as such, as req uired by law as a condit ion precedent to t he establis hm ent of a ny p r ice to be paid at any leve l for mi ll{"?

2. Is the recent amend ment to order 20-24 (now known as 220-6.14) in va lid for the same reason?

3. Could any fa ir trade order of t his commission have the effect of establish ing a floor for the sale of mHk at wholesa le or retail? At the outset, may I respectfully direct your attention to

ij 301 .13 (7), F.S., which provides as folows: The commission may upon its own motion or upon

ap plicati on from time to time, alter, revise or amend an official orde r theretofore made with respect to the prices to be charged or paid for mi lk. After making such investi­gation and before making, revising or amending any order fixi ng the price to be charged or paid for milk, the com­mission shall give a hea1·ing the1·eon to all pa1·ties inteTested IIpon reasonable notice to such inteTested paTties and to the publ ic of such hea ring in such newspaper or news­papers as in the judgment of the commission shall afford sufficient notice and publicity. Such order of the commis­sion may be reviewed by appeal as provided in this chapter at the instance of any aggrieved person appearing of record at the hea ring either in person or by personal r epresen­tative and opposing the making of the order. In your request for opinion yo u relate that the subject order

\l'a" originally adopted as a fa ir trade order and not advertised in the manner required by the above statute. This "fair trade" order you advise has been amended several times, the last on Aug. 24, 1962. You further advise that the order originally provided for a calculable minimum wholesale price below which distributors could not :elI to retail establishments and the most recent amendment pro\"ided tha t "milk and milk products shall not be sold at retail in any milk marketing area at a price below the average .. . "

I am of the view that the order as originally passed, as well as after amendment clearly constitutes an ordel· fixing the price to be charged or paid for mi lk and would, therefore, be requ ired to be adop ed only after advertisement of notice of public hearing as required by the statute. It is our op inion the original order and the amend men ts thereto are illegal.

Insofar as question 3 is concerned, further stu dy of it is required by us and you may expect to hea r from us shortly. We undel·stand from con versa ions we have had with you that answers o questions 1 and 2 are urgent.

062-127-0ctober 1, 1962

ST ATE OFFICERS AND E [PLOYEES C\"L\fPLOY:VIENT COMPENSATIO~ BENEFITS AS WAGES

CKDER ~ 222.15 , F.S.-PAYlVIE~T TO ESTATE OF DE­CEASED EiVIPLOYEE-~~443 . 08, 443.10, 735.05, F .S.

To: Ray E. Green, State C01n1JtToller, Tallahassee QCESTIOK :

May unemployment compensation benefits due a state employee at the t ime of his death be pa id to his s urvivors in accordance with §222.15, F.S.? Section 222.15, F.S., provides that:

570 BIENNIAL REPORT OF THE ATTORNEY GENERAL

It is lawful f or any employer, in case of the death of an employee, to pay to the wife or hu band, and in case there is no wife or husband, then to the child or children, proyided the child or child ren be oyer the age of eighteen years, and in case there is no child or children, then to the father or mother, any wages or traveling expenses that may be due aid employee at the time of hi death. When the above tated question is applied to aid ~ 222.15 , F.S.,

the question a r ises as to what is the nature of unemployment com­pensation, and may uch compensation be cIa sified as '·wages or traveling expen e " for the purposes of said section of the stat­utes.

Unde r ~4 43.08, F.S., each employer in thi s .. tate within the unemployment compensation statu tes of thi state is required to make the stipulated contr ibu t ions to the unemployment trust fund created and established by ~443.10, F.S. The state treasurer is the ex-officio treasurer and custodian of this fund and is required to administer it "in accorda nce with the directions of t he commission." This unemployment compensation t r ust fund provides the fu nd from which unemployment compensation benefits are paid. Funds paid into the state unemployment compensation trust fu nd are pa id into t he U.S. t r eas ury, and cred ited to a special fund, and may be withdrawn therefrom only for paying unemployment benefits (People v. U.S., 328 U.S. 8, 66 S. Ct. 841, 90 L. Ed. 1049, text 1052 ) . Payments from this trust fund must be di stributed in strict accord­ance with the terms of the unemployment compensation statutes (81 C.J.S. 357, ~241 ) .

The court of appeals of Alabama, in Dept. of Industrial Rela­tions v. Drummond, 1 So. 2d 395, text 401; Tenn. Coal, Iron and Railroad Co. v. Martin, 36 So. 2d 535, text 536; and Dept . of I ndus­trial Relations v. Stone, 53 So. 2d 859, text 861, deemed unemploy­ment compensation to be "in the nature of insurance." To the same effect see also the opinion of the Court of Common Pleas of Ohio in Reeves v. Board of Review, 118 N. E. 2d 159, text 160; at least to a limited extent (Berdan v. Unemployment Compensation Board, 153 Pa. Super. 49, 33 A. 2d 264) . Unemployment compensation i . referred to in 48 Am. JUl'. 520, et seq., : 10 et seq., as unemployment insurance. The Supreme Cou rt of Florida in Florida Industrial Commission v. Growers Equipment Co., 152 Fla. 595, 12 So. 2d 889, text 892, stated that " ... t he well being of wage earners and the welfare of the state require the enactment of a compulsory unem­ployment insurance plan, and the setting aside of financial reser ves for the benefit of persons without employment through no fault of their own." Contracts between individu al ·whereby one contracting party agrees to compensate the other, in whole or in part, during unemployment have been held to be insurance contracts (State v. Bar ton, 92 Neb. 666, 139 N. W. 225; Smythe v. Home Li fe and Acci dent Ins. Co., 134 La. 368, 64 So. 142, text 143). See also defini­tion of "social insurance" in Black's Law Dictionary. In Friedman v. American Surety Co., 137 Tex. 149, 151 S. W. 2d 570, text 578, the s upreme cou rt of Texas recognized that the dominant purpose of the state's unemployment compensation act "i s to provide insu rance or com pen atiol1 to employees, who come under it, in times of unemployment." However, the Texas court remarked that "the right of such employees to enjoy 01' participate in the fund in times of unemployment should be r egarded as a part of their compensation or wages."

BIENNIAL REPORT OF THE ATTORNEY GENERAL 571

The word "wages" usually relates to t he compensation given t o a servant or hired person fo r h is services ; remuner at ion from an employer to hi s ser vant or hired person (Black's Dict iona ry ; 44 'Nords and P hrases 490, et seq. ; 92 C. J. S. 1035, et seq.) . Section 222.15, F. S. , seems to be limited to wages 01' compensation due an employee by hi s employer . Unemployment compensation is not pay­able f r om an employer to an employee for se rvi ces rendered; but by the state to an unemployed whose employment has ceased due to conditions beyond hi s cont rol. Section 222.15, F . S., author izes the payment of an employee's wages, by an employer, to h is or her next of kin , as descri bed in sald section, when the employee is deceased . The unemployment compensation is payable, not by t he employer , but by t he state, to the next of kin of the employee from fu nds belonging to a state t r ust f und.

The above autho r it ies and obser vations lead us to a negative answer to t he above sta ted quest ion; howeve r, t h is answer merely holds t hat the unemployment compensat ion due the employee at t he t ime of hi s deat h may not be paid under and pur suant to said §222.15, F. S ., as wages . Such unpa id unemployment compensat ion is pl'operty of the decedent's estate and is payable under t he statutes of descent and distribution t o the personal representative or in accordance with ~§735 .0 5, et seq., F. S., under order s of admini stra­ti on unnecessar y when applicable.

062-128-0dober 1, 1962

ELECTORS AND ELECTIONS ABSENTEE REGISTRATIO N BY SE RVICE ACADEMY

CADETS-§97.063, F. S.

To ,' M1'S . E aster L ily Gates , Superviso)' of R egistmtion, B1'oward County, F ort Laudm'dale

QUE STION: Do cadets who are enrolled at armed forces service

academies meet the definition requirements provided In

§97.063, F. S., relat ive to absentee registration? Section 97.063, F. S., provides : Members of the armed forces while in t he active service, and their spouses, shall be entitled to register absentee. Various reli able military authorities r eport to this offi ce

that cadets attending service academies su ch as the air for ce academy at Color ado Springs, the naval academy at Anna polis and the mili tary academy at West P oint, r ece ive a ll owances a nd subsisten ce from t he U. S. government, wear a uniform r epre­sentative of their par t icu lar branch of service, a r e subject to t he uni form code of mili ta ry j us tice, acqu ir e longevi ty status f or pay purp oses while a t the academy an d in at least one inst an ce (Anna poli s ) hold a military rank junior to that of a commissioned office r, but senior to that of warrant officers . In additi on, we are ad vised t hat cadet s a re r equi r ed to sign a contract with t he government obligating themselves for a stipulat ed num ber of year s of reser ve or acti ve duty tra ining prior t o or f oll owing g ra duation fr om t he academy, depending upon w hether t he stu dent mainta ins a satisfactory standing in order to receive a degr ee and commission.

Th is be ing the case, it wo uld appea r t hat duly enrolled service academy 'cadets a re, in every sense, an integra I part of