City of Wichita v. Wyman

• Decision Date: 26 June 1944
• Docket Number: 36170.
• Citation: 158 Kan. 709,150 P.2d 154
• Parties: CITY OF WICHITA v. WYMAN, Workmen's Compensation Commissioner.
• Court: Kansas Supreme Court

150 P.2d 154

158 Kan. 709

CITY OF WICHITA v. WYMAN, Workmen's Compensation Commissioner.

No. 36170.

Supreme Court of Kansas

June 26, 1944

Syllabus by the Court.

Under statute empowering city to elect to regulate its relationship with its employees in conformity with the Workmen's Compensation Act, city is impliedly authorized to serve as its own self-insurer when it makes a proper showing to the Compensation Commissioner of its financial responsibility so to do. Gen.St.1935, 44-505, 44-532.

Whether city should serve as self-insurer of compensation to its injured employees, or purchase insurance from some reliable insurance company, is a matter which rests in the discretion of governing body of city. Gen.St.1935, 44-505, 44-532.

Where by statute official powers and duties are confirmed on public officer or official board, the only implied powers possessed by such officer or board are those which are necessary for effective exercise of powers and duties expressly conferred.

In addition to powers expressly given by statute to officer or official board such additional powers as are necessary for the due and efficient exercise of powers expressly granted are given by implication.

Under the cash basis and budget laws where existence and amount of certain contingent municipal expenses is uncertain, a rational estimate thereof by proper officials charged therewith is sufficient. Gen. St.1935, 10-1102 et seq.; Gen.St.Supp.1943, 79-2927.

So far as they are in pari materia all laws are to be read and construed together, and when so construed there is no want of accord between cash basis and budget laws and statute conferring on cities power to operate under the Workmen's Compensation Act. Gen.St.1935, 10-1102 et seq., 44-505 44-532; Gen.St.Supp.1943, 79-2927.

The cash basis and budget laws do not prevent city from serving as a self-insurer under the Workmen's Compensation Law Gen.St.1935, 10-1102 et seq., 44-505, 44-532; Gen.St.Supp.1943, 79-2927.

The Supreme Court could take judicial notice of fact that city of Wichita has financial resources to serve as self-insurer under Workmen's Compensation Act incomparably greater than those of any individual contractor to whom the Workmen's Compensation Commissioner has granted privilege of being his own self-insurer. Gen.St.1935, 10-1102 et seq 44-505, 44-532; Gen.St.Supp.1943, 79-2927.

1. Under authority of G.S.1935, 44-505, by which a city may elect to regulate its relationship with its employes in conformity with the provisions of the Workmen's Compensation Act, the city is impliedly authorized to serve as its own self-insurer when it makes a proper showing to the Compensation Commissioner of its financial responsibility so to do.

2. Certain objections to the city's serving as self-insurer in view of the cash basis and budget laws considered and not sustained.

Original action in mandamus by the City of Wichita, Kansas, against Erskine Wyman, Workmen's Compensation Commissioner, to determine whether the plaintiff may act as self-insurer under the Workmen's Compensation Act.

Judgment for plaintiff.

Vincent F. Hiebsch and Fred W. Aley, both of Wichita, for plaintiff.

A. B Mitchell, Atty. Gen. (C. H. Hobart, Asst. Atty. Gen., on the brief), for defendant.

DAWSON Chief Justice.

This is an original action in mandamus to determine whether the city of Wichita may act as self-insurer in respect to the payment of compensation which may be awarded to the city's employes injured in its service.

The Compensation Commissioner takes the position that the city is not authorized to act as self-insurer, and declines to give his sanction to its acting in that capacity.

An examination of pertinent provisions of the Workmen's Compensation Act and some reference to our previous decisions will develop the legal question. G.S.1935, 44-532, provides that every employer of labor engaged in any hazardous industry shall secure the payment of compensation awards to his injured employes by procuring insurance from some reliable insurance concern covering the compensable accidents which may befall them in his service. This statute further provides that the employer may show to the Compensation Commissioner that his financial responsibility is so sound that he may act as his own self-insurer. In the oral argument this court was informed by counsel that in administrative practice, employers who set aside a fund of $3,000 or more to secure the payment of such compensation awards are ordinarily permitted to act as self-insurers.

For many years after the first enactment of the compensation statute, the state's governmental agencies, counties, cities and the like, insofar as their normal functions were concerned, did not operate under the Workmen's Compensation Act. Simpson v. City of Kansas City, 137 Kan. 915, 22 P.2d 955; Kopplin v. Sedgwick County Com'rs, 139 Kan. 837, 32 P.2d 1058. See, also, 4 Kan.Bar Journal, Feb. 1936, 197-207 and citations therein. On the other hand, it was held that in the exercise of its proprietory functions, such as the operation of its utility services, a city's liability to its injured workmen was governed by the Compensation Act. McCormick v. Kansas City, 127 Kan. 255, 273 P. 471.

By G.S.1935, 44-505, the scope of the Compensation Act was extended to cover a number of industries and commercial activities not theretofore within its precise terms; these included "county and municipal work;" and it also provided that--

"The state highway commission, each county, city, school district, sewer district, drainage district and other public or quasi-public corporation *** may elect to come within the provisions of this act by filing with the commission a written statement of election to accept thereunder ***." Laws 1935, ch. 202, § 1.

On February 14, 1944, the city of Wichita by appropriate resolution elected to come within the provisions of the Compensation Act so far as it covered its employes, other than the officers of its police department and the regular firemen of its fire departments for whom the city had theretofore made provision by pension funds and other satisfactory arrangements of no present concern. G.S.1935, 13-629 et seq. The resolution also provided that representation should be made to the Compensation Commissioner showing the city's financial ability to serve as self-insurer as authorized by G.S.1935, 44-532, and applying for permission so to do. These matters were properly certified and submitted to the commissioner, who acknowledged their receipt and replied--

"Upon search I am unable to find under the Statutes of Kansas any law authorizing a municipality to qualify as a self-insurer under the Kansas Workmen's Compensation Act. For this reason, I regret to inform you, the application is hereby denied. ***"

Hence this lawsuit.

In its petition for mandamus the city pleaded the pertinent facts and alleged that it had an aggregate of 359 city employes below the grade of officers in its various governmental departments, that it had included in its budgetary estimates for 1944 one for payment of awards to its employes for injuries they might receive in its service. The city also alleged that the purchase of insurance coverage for its employes would incur an altogether unnecessary expense of $6,000 per annum, and that it was abundantly able to qualify as self-insurer.

In his answer and return to the alternative writ the Compensation Commissioner raised the legal question stated in his correspondence with the city quoted above. He also suggested some practical difficulties in articulating the city's fiscal arrangements for acting as self-insurer with the statutes requiring it to conduct its financial affairs in conformity with the cash basis and budget regulations therein prescribed. G.S.1935, 10-1102 et seq.; G.S.1943 Supp. 79-2927.

This court has no hesitation in holding that in principle and by precedent the...