Borders v. Cline

WiNBORNE, J. The question here involved: Is a deputy sheriff an employee of the sheriff, by whom he is appointed, within the meaning of the North Carolina Workmen’s Compensation Act? We hold that he is not. This specific question has not been passed upon by this Court. However, in the case of Starling v. Morris, 202 N. C., 564, at 568, Connor, J., stated: “The question as to whether the relation between the sheriff of a county in this State, and one who has been appointed by him as a deputy is that of employer and employee, within the meaning of those words as used in the North Carolina Workmen’s Compensation Act is not presented by this appeal. In view, however, of the definition in the statute of the words 'employment,’ 'employer’ and 'employee’ as used there, it may well be doubted that a deputy sheriff is an employee of the sheriff by whom he was appointed, within the meaning of those words as used in the act.” In considering the question it is necessary to interpret the pertinent sections of the Compensation Act under appropriate rules. The Workmen’s Compensation Act should be liberally construed so as to effectuate the Legislature’s intent or purpose which is to be ascertained from the wording of the act. 71 C. J., 341; Johnson v. Hosiery Co., 199 N. C., 38, 153 S. E., 591; Rice v. Panel Co., 199 N. C., 157, 154 S. E., 69; Reeves v. Parker, 199 N. C., 236, 154 S. E., 66; Williams v. Thompson, 200 N. C., 463, 157 S. E., 430; West v. Fertilizer Co., 201 N. C., 556, 160 S. E., 765. Again, “The rule has been said to be, to construe a compensation statute so as to include all services which can reasonably be said to come under the provisions; thus, with regard to the employments to which they apply, the acts are to be construed liberally. . . . Even such a provision, however, will not permit a forced construction to be given to their wording; and, apart from such provisions, the rule of [475] liberal construction cannot be carried to tbe point of applying an act to employments not within its stated scope, or not within its intent or purpose, or of supporting a strained construction to include an occupation or employment not falling within it.” 71 C. J., 359. The words used in the statute must be given their natural or ordinary meaning. 71 C. J., 353; Asbury v. Albemarle, 162 N. C., 247, 78 S. E., 146; Comrs. v. Henderson, 163 N. C., 114, 79 S. E., 442; Whitford v. Ins. Co., 163 N. C., 223, 79 S. E., 501; Motor Co. v. Maxwell, 210 N. C., 725, 188 S. E., 389; S. v. Whitehurst, ante, 300. With these rules for guidance we find as the definitions of the words “employment,” “employee” and “employer,” as used in the North Carolina Workmen’s Compensation Act, in so far as pertinent t.o facts of instant case, C. S., 8081 (i)., a, b, and c, that: “(a) The term ‘employment’ includes employment by the State and all political subdivisions thereof and all public and gitcm-public corporations therein and all private employments in which five or more employees are regularly employed in the same business or establishment, except agriculture and domestic service and sawmills and logging operators in which less than fifteen employees are regularly employed.” “(b) The term ‘employee’ means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written. . . .” “(c) The term ‘employer’ means . . . every person carrying on any employment. . . .” In reading these three sections it is seen that the word “employment” is the basic factor in determining who are “employees” and “employers” within the meaning of the act. Hence, the question: Is the position of deputy sheriff an “employment” as' defined in that part reading, “All private employments in which five or more employees are regularly employed in the same business or establishment.” Analyzing that clause it is seen that the word “employments” is limited by the adjective “private,” and further by the words “business or establishment.” In Webster’s New International Dictionary, 2nd ed., we find the word “private” defined: “Belonging to, or concerning, an individual person, company or interest; peculiar to oneself; unconnected with others; personal; one’s own; not public; not general; separate; as a man’s private opinion; private property; a private purse; private expenses or interests; a private secretary; opposed to public. Not invested with, or engaged in, public ■ office or employment; not public in character or nature; as a private citizen.” The word “business” is defined as “A commercial or industrial establishment or enterprise.” “Establishment” is defined as “An institution or place of business, with its fixed or organized staff, as a manufacturing establishment.” These words, when given the natural or ordinary meaning, clearly indicate reference [476] to commercial or industrial employment of a private character as contra-distinguished from public office. The office of sheriff is constitutional. N. 0. Constitution, Art. IV, sec. 24. It is a public office.- Public office is not private property. Mial v. Ellington, 134 N. C., 131, at 162. A sheriff takes office, not by contract, but by commission subject to the power of the Legislature to fix fees and compensation for which the Constitution does not provide. Comrs. v. Stedman, 141 N. C., 448, 54 S. E., 269; Bunting v. Gales, 77 N. C., 283; Mills v. Deaton, 170 N. C., 386, 87 S. E., 123. The office of sheriff is one of public confidence and fidelity to a public trust, and cannot be a matter of bargain and sale. Cansler v. Penland, 125 N. C.,, 578, 34 S. E., 683. In the main the duties of the office are prescribed by statute, Comrs. v. Stedman, supra, and are ministerial in character, and, as to such ministerial duties, it is implied, when not so provided by statute, that he may act by a substitute or deputy. Yeargin v. Siler, 83 N. C., 348; R. R. v. Fisher, 109 N. C., 1. There is no statutory authority for appointment of deputies sheriff. However, “the deputy is an officer coeval in point of antiquity with the sheriff.” Lanier v. Greenville, 174 N. C., 311, 93 S. E., 850. “There are two kinds of deputies sheriff well known in practice: (1) A general deputy or under sheriff who, by virtue of his appointment, has authority to execute all the ordinary duties of the office of the sheriff, and who executes process without special power from the sheriff; and (2) a special deputy, who is an officer pro hac vice, to execute a particular writ in some certain occasion, and who acts under a specific and not a general appointment and authority.” Lanier v. Greenville, supra. It is said in 57 C. J., 731, sec. 4, “A deputy is the deputy of the sheriff, one appointed to act ordinarily for the sheriff and not in his own name, person or right, and although ordinarily appointed by the sheriff, is considered a public officer.” The duties and authority of a deputy sheriff relate only to the ministerial duties imposed by law upon the sheriff. How those duties are 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. By appointing a deputy the sheriff merely delegates to him the authority to execute ministerial functions of the office of sheriff. Those functions are of a public character. The compensation of the fee deputy is that fixed by statute for the performance of duties required of the sheriff. It is paid as prescribed by statute and not by the sheriff. “An employee is one who works for another for wages or salary, and the right to demand pay for his services from his employer would seem [477] to be essential to bis right to receive compensation under tbe Workmen’s Compensation Act, in ease of injury sustained by accident arising out of and in tbe course of tbe employment.” Stacy, C. J., in Hollowell v. Dept. of Conservation and Development, 206 N. C., 206, 173 S. E., 603, citing In re Moore, 187 N. E., 219. Bashan v. County Comrs. (W. Ya., 1933), 171 S. E., 893. In tbe instant case tbe claimant Borders is a regular deputy appointed by tbe sheriff, and received as bis only compensation fees fixed by statutes. Claimants Eoss and Byers were special deputies to assist in tbe execution of tbe writ issued by tbe clerk of tbe Superior Court under statutory authority, committing tbe insane persons to tbe hospital. C. S., 6193. Tbe cost and expense of conveying these persons to tbe hospital in accordance with tbe writ is required to be paid by tbe treasurer of the county upon order of tbe board of county commissioners. C. S., 6202. Claimants contend that tbe amendment to sec. 17 of tbe Compensation Act (sec. 2, cb. 274, Public Laws 1931) which permits any sheriff to exempt himself and any and all deputies appointed by him from tbe provisions of tbe act by notice in writing to the Industrial Commission, manifests tbe intent of tbe Legislature to include sheriffs and their deputies within tbe meaning of tbe act. If tbe wording of tbe original act be not sufficient to include them, then “sheriffs and their deputies” cannot be read into tbe meaning of tbe words, originally used, by an amendment permitting a sheriff to exclude himself and bis deputies. “It is ours to construe tbe laws and not to make them.” . . . “It is in tbe province of tbe law-making power to change or modify tbe statute, not ours.” . . . “It is ours only to declare tbe law, not to make it . . .” Stacy, C. J., in S. v. Whitehurst, ante 300, citing authorities. Claimants further contend that in view of tbe fact that tbe defendant sheriff has purchased compensation insurance to cover bis compensation liability, tbe amendment to sec. 14 (b) of tbe Compensation Act (cb. 150, Laws 1935), C. S., 8081 (u) (b), affords a foothold upon which this case may stand. Holding that tbe relationship of employer and employee, within tbe meaning of tbe North Carolina Workmen’s Compensation Act, does not exist between a sheriff and bis deputy, the provisions of this amendment are not applicable to tbe ease in band. Tbe defendant sheriff “purchased workmen’s- compensation insurance to cover bis compensation liability.” Tbe judgment of tbe court below is Eeversed.