Blake v. . Allen

WiNBORNE, J. Tbe statute, under which plaintiff has attempted to bring defendant Walker Allen, resident and sheriff of Dillon County in the State of South Carolina, into court in this action, Public Laws 1929, ch. 75, is entitled: “An act to provide for service of process in civil suits upon non-resident owners and operators of motor vehicles in actions or proceedings growing out of accidents or collisions in which such motor vehicle owners or operators may be involved.” Section 1 of the Act provides that in any action or proceeding against a nonresident “growing out of any accident or collision in which said non-resident may be involved by reason of the operation by him, for him, or under his control or direction, express or implied, of a motor vehicle on such public highway of this State,” service may be obtained through the Commissioner of Revenue. Smith v. Haughton, 206 N. C., 587, 174 S. E., 506; Wynn v. Robinson, 216 N. C., 347, 4 S. E. (2d), 884; Crabtree v. Sales Co., 217 N. C., 587, 9 S. E. (2d), 23. Though at the time of the accident here involved, defendant Walker Allen was not operating, or riding in the automobile of defendant Sawyer, the question is whether the automobile was being operated by defendant Cottingham for defendant Allen, or under his control or direction, express or implied. Applying pertinent principles of law to those findings of fact, which are supported by evidence, and binding on appeal, Crabtree v. Sales Co., supra, this question must be answered in the negative. This decision follows the general principle of law that a delegate cannot delegate, delegatus non potest delegare, that is, “the person to whom an office or duty is delegated cannot lawfully devolve the duty on another, unless he be expressly authorized so to do.” Black’s Law Dictionary, 3rd Ed.; Shankland v. The Mayor of Washington, 5 Peters, 390, 8 L. Ed., 166; 26 C. J. S., 978. A deputy, as usually defined, is one who by appointment exercises an office in another’s name. He must be one whose acts, done under color of office, are of equal force with those of the officer himself. 26 C. J. S., 978; Piland v. Taylor, 113 N. C., 1, 18 S. E., 70; Styers v. Forsyth County, 212 N. C., 558, 194 S. E., 305. In 26 C. J. S., at page 978, it is said: “The position of ‘deputy,’ as the word implies, is that of a subordinate, and he has power to do every act which his principal might do, but ‘a deputy may not make a deputy.’ ” Under the law as declared in this State, particularly in the cases of Borders v. Cline, 212 N. C., 472, 193 S. E., 826, and Styers v. Forsyth *449 County, supra, where the status of a deputy sheriff has been recently considered, the position of a deputy sheriff is a public office, the appointment to which delegates to the deputy authority to perform only ministerial duties imposed upon the sheriff, and in respect to these duties, as stated in the Styers case, supra, “he acts as vice principal or alter ego of the sheriff, for the sheriff ‘and his deputy are, in contemplation of law, one person/ ” In the Borders case, supra, it is stated that the duties to be performed and the ends to be accomplished are as prescribed and directed by law, and not in accordance with the direction and discretion of the sheriff. The deputy is neither the agent, servant, nor employee of the sheriff. In this connection Stacy, C. J., speaking specifically thereto in the Styers case, supra, said: “It is-true that in some of the cases a deputy is loosely spoken of as an ‘employee of the sheriff,’ or as an ‘agent of the sheriff,’ but the designation is inexact, and is not to be found in those cases dealing with his precise status.” Accordant with these principles, it follows that in the present case the automobile was being operated for defendant Sawyer, and under his control or direction in the performance of his duties as deputy sheriff, within the purview of the statute, Public Laws 1929, chapter 75, and not for defendant Allen, as sheriff. In respect to those duties Sawyer lacked authority expressly or impliedly to designate another to act in his stead for the sheriff. The judgment below is Reversed.