Bowden v. Cumberland County

• Decision Date: 01 January 1924
• Citation: 123 A. 166
• Parties: BOWDEN v. CUMBERLAND COUNTY et al.
• Court: Maine Supreme Court

123 A. 166

BOWDEN

v. CUMBERLAND COUNTY et al.

Supreme Judicial Court of Maine.

Jan. 1, 1924.

Appeal from Supreme Judicial Court, Cumberland County, in Equity.

Proceeding under the Workmen's Compensation Act by Eva E. Bowden, widow of Arthur C. Bowden, claimant, opposed by Cumberland County, the United States Fidelity & Guaranty Company, insurer, and the State of Maine. From decree awarding compensation as against the State, based on findings and rulings of the Industrial Accident Commission, the State appeals. Appeal sustained. Decree reversed.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, and MORRILL, JJ.

Clement F. Robinson and Arthur L Robinson, both of Portland, for claimant.

William H. Fisher, Deputy Atty. Gen., and Strout & Strout, of Portland, for respondents.

HANSON, J. This is an appeal from a decree based on the findings and rulings of the chairman of the Industrial Accident Commission. By the decree compensation is awarded as against the state of Maine to the claimant, widow of former Deputy Sheriff Arthur C. Bowden, for the maximum amount provided by statute.

Arthur C. Bowden was a deputy sheriff of Cumberland county, and was acting, by appointment of the sheriff, as court officer of the superior court for Cumberland county during its session.

The chairman of the Commission found the following facts:

"Mr. Bowden was accidentally injured while on his way from his home in Freeport to attend to his duties as a superior court officer of the Cumberland county superior court on the morning of December 6, 1921, and he died as a result of those injuries on the 10th day of December, 1921. Besides his duties as a superior court officer, Mr. Bowden was also acting in the performance of his regular duties as a civil deputy, in that, because of certain legal matters which had been turned over to him as a deputy sheriff for action, it was necessary for him to see Sheriff King F. Graham in Portland that morning. Mr. Bowden lived in Freeport, and it was his custom to go to Portland each morning to attend to his duties as court officer, and to return to his home each evening, when those duties were completed for the day.

"On the morning of December 6, 1921, while proceeding to Portland for the purpose outlined above, the accident occurred which resulted in the death of Mr. Bowden."

The following statutes, given here in the order of their passage, were and are involved in the findings of the Commission, and in the determination of the instant case:

"'Employee' shall include every person in the service of another under any contract of hire, express or implied, oral or written, except: (a) Farm laborers; (b) domestic servants; (c) masters of and seamen on vessels engaged in interstate or foreign commerce; (d) person whose employment is but casual, or is not in the usual course of the trade, business, profession or occupation of his employer; (e) officials of the state, counties, cities, towns or water districts and other quasi-municipal corporations of a similar character. Policemen and firemen shall be deemed employees within the meaning of this act. If, however, any policeman or fireman claims compensation under this act, there shall be deducted from such compensation any sum which such policeman, fireman or other person may be entitled to receive for any pension or other benefit fund to which the state or municipal body may contribute. Any reference to an employee who has been injured shall, when the employee is dead, also include his legal representatives, dependents and other persons to whom compensation may be payable." R. S. 1916, c. 50, § 1, p. 2.

An "Act to provide compensation for Injuries received by state employees" was enacted later, to wit:

Chapter 230, Laws of 1917, which provides as follows:

"All persons employed by the state or under the direction and control of any department of the state shall be entitled to the benefits of chapter fifty of the Revised Statutes. The Governor and council shall order such compensation as shall be assessed, paid from the state contingent fund."

An amendment to the foregoing chapter 50 of R. S. 1916, relating to workmen's compensation, incorporating therein chapter 230, Laws of 1917, was passed as in Public Laws 1919, c. 238, after paragraph (e), as follows:

"(f) Except that any town or city may, in lieu of the compensation and insurance provided by this act, continue any member of the fire department or police force in said town, who may have been injured in the course of his duties, on the payroll at full pay, if such full pay exceeds the maximum compensation provided for employees under this act. Any reference to an employee who has been injured shall, when the employee is dead, also include his legal representatives, dependents and other persons to whom compensation may be payable; (g) all persons employed by the state or under the direction and control of any department of the state shall be entitled to the benefits of chapter fifty of the Revised Statutes. The Governor and council shall order such compensation as shall be assessed, paid from the state contingent fund."

The chairman of the Industrial Accident Commission quotes also section 9 of chapter 85 of the Revised Statutes of the state of Maine, which provides that "Sheriffs shall obey all such orders relating to the enforcement of the laws as they from time to time receive from the Governor"; and article 5, part 1, section 1, of the Constitution that "the supreme executive power of this state shall be vested in a Governor"; and also section 12 declares that "he shall take care that the laws be faithfully executed." The chairman quotes very fully the Opinion of the Justices, 3 Me. 484, answering questions proposed by the Senate as to the right of any person to hold and exercise, at the same time, "the several offices of deputy sheriff and justice of the peace." The justices there held that:

"There can be no question that sheriffs, deputy sheriffs, and coroners are executive officers; and for the reasons we have assigned, we think they must also be considered, though not named under a distinct head, as belonging to the executive department; the limits of which are nowhere in the Constitution expressly defined."

The question before the Commission, so far as it related to the state, was proposed and answered by the chairman as follows:

"Was Arthur C. Bowden in the employ of the state of Maine or under the direction, and control of any department of the state of Maine on December 6, 1921?"

His answer was:

"Based upon the evidence submitted and upon the rulings of the Supreme Judicial Court already quoted it is found that Mr. Bowden was not in the employ of the state of Maine at the time of the accident which caused his death, but that, as a deputy sheriff and superior court officer, he was 'under the direction and control' of the executive department of the state of Maine, and therefore an 'employee' within the meaning of the act."

The chairman gives very clearly his view of the effect of the law, and particularly his construction of paragraph (g), as follows:

"As originally enacted in 1915, section 1, subdivision 11, of the Maine Workmen's Compensation Act did not include paragraph (g). This paragraph was added by an amendment in 1919. Prior to that time, some doubt existed as to whether or not certain persons in the service of the state were entitled to the benefits of the Workmen's Compensation Act. By the amendment it was intended to include within the benefits of the Workmen's Compensation Act, without exception, all persons employed by the state or 'under the direction or control of any department of the state.' Were it not for the provisions of paragraph (g) as adopted by the amendment to the Maine Compensation Act, extending to 'all persons in the employ of the state or under the direction and control of any department of the state,' deputy sheriffs would not be entitled to compensation under the Maine Workmen's Compensation Act, for, like policemen and firemen, they act in an official capacity, rather than under a contract of hire."

We are not persuaded that Mr. Bowden, a deputy sheriff, and superior court officer, was at the time of the accident "under the direction and control of" the executive department of the state of Maine, and therefore an "employee" within the meaning of the act. Mr. Bowden was admittedly an official, a public officer, and before the amendment was admittedly excepted under paragraph (e) of the act. If the Legislature had intended in any manner to change the meaning and intent of paragraph (e) of the act, or to authorize a more liberal construction of the same than had already been accorded it, we must assume such intention would have been expressed in terms. From the language of the amendment, those persons not included in the original act, and comprehended in the amendment, were intended to be protected thereby. It was an extension of, and not a change in, the existing statute inclusion. It was not meant for one department of state, but for all. Primarily, it was intended for employees, as distinguished from officials, employees directly employed by officials authorized to act for the state, or persons employed or in the service of any department without such official or authorized sanction.

A deputy sheriff, while acting as court officer during a session of the court, is not and cannot be held to be exercising an executive function while acting as such court officer, under the direction and control of the executive department, nor is he an employee of any department within the meaning of paragraph (g) of the amendment.

That sheriffs and their deputies are subject to the direction and control of the executive has been recognized since 1820, but, in all the years since, the rule stated in the Opinion of the Justices, cited, has been followed, that such direction and control has been exercised, "when legal coercion was necessary,"...