Griggs v. Harding County

• Decision Date: 30 April 1942
• Docket Number: 8491.
• Citation: 3 N.W.2d 485,68 S.D. 429
• Parties: GRIGGS v. HARDING COUNTY et al.
• Court: South Dakota Supreme Court

3 N.W.2d 485

68 S.D. 429

GRIGGS v. HARDING COUNTY et al.

No. 8491.

Supreme Court of South Dakota

April 30, 1942

Caldwell & Burns, of Sioux Falls, for appellants.

Dan McCutchen, of Belle Fourche, for respondent.

ROBERTS Judge.

Plaintiff widow and dependent of John Emmett Griggs, who was at the time of his death the county highway superintendent of Harding County, this state, instituted this proceeding against Harding County and its insurer to recover compensation under the Workmen's Compensation Law. The industrial commissioner found that deceased was an employee of the county and that his death was caused by an accident arising out of and in the course of the performance of services as county highway superintendent. From a judgment of the circuit court affirming an award, defendants appeal.

This appeal presents the question whether the status of the deceased was that of an employee or of a public officer to whom the provisions of the Workmen's Compensation Law do not apply.

SDC 64.0102 provides that the term "employer" as used in the Workmen's Compensation Law shall include "the state and any municipal corporation within the state or any political subdivision of this state." This section further provides that the term "employee" as used in the statute shall include "every person, *** in the services of another under any contract of employment, express or implied," but excludes from its operation "Any official of the state or of any county, municipality, or school district therein, elected or appointed for a regular term of office or to complete the unexpired portion of any such term."

A public office as distinguished from mere employment involves a delegation to the person filling the office of some part of the functions of government to be exercised by him for the benefit of the public. The distinction is clearly stated in 53 A.L.R. 595: "It may be stated, as a general rule deducible from the cases discussing the question, that a position is a public office when it is created by law, with duties cast on the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent; while a public employment, on the other hand, is a position which lacks one or more of the foregoing elements."

There are other criterions, such as a fixed tenure of position; the taking of an oath of office and the giving of an official bond that distinguish a public office from employment. These are not absolute criterions, but may be considered with other elements.

The Supreme Court of Iowa in the case of McKinley v. Clarke County et al., 228 Iowa 1185, 293 N.W. 449, had before it for determination the right of a widow to recover workmen's compensation for the accidental death of her husband arising out of and in the course of the performance of services connected with his position as county engineer. The county board was authorized to employ an engineer to superintend construction and maintenance work on highways within the county and to perform other duties prescribed by statute. The court concluded that the statute delegated certain sovereign powers to county engineers and that the duties performed by the deceased at the time of his death would not constitute him an employee so as to make his death compensable under the Workmen's Compensation Law.

In the case of Miller v. Board of Commissioners of County of Ottawa, 146 Kan. 481, 71 P.2d 875, plaintiff contended that the contract whereby he was employed as a county engineer was impaired by an amendatory statute reducing the amount of his monthly salary. The statute prescribed at length the duties of a county engineer. He was required, among other things, to prepare plans, specifications and estimates for roads, bridges and culverts; to act for the county in all matters relating to construction and maintenance of highways and bridges; to advise township and county officers with reference to highway construction; and to keep specified records. The court concluded that plaintiff appointed by the county board as county engineer under authority of statute was a public officer whose salary could be reduced by a subsequent legislative act.

In the case of Coulter v. Pool, County Auditor, et al., 187 Cal. 181, 201 P. 120, 122, it was held that a statute created a public office notwithstanding a legislative declaration to the effect that it was not the purpose of the legislature to create a public office. The court said:

"At the outset we are satisfied that the act in question contemplates the creation of a county office, and does, in fact, provide for something more than a mere employment by the board of supervisors of a person to be known as the county engineer. And we are convinced that this is so despite the verbiage of the act, industriously employed, which, among other things declares that the county engineer appointed by the board of supervisors 'shall be deemed an employee and not a county officer *** subject to the control and supervision of the board of supervisors.' ***

"Its definition and application depend, not upon what the particular office in question may be called, nor upon what a statute may call it, but upon the power granted and wielded, the duties and functions performed, and other circumstances which manifest the true character of the position and make and mark it a public office, irrespective of its formal designation."

See, also, 22 R.C.L. 379; 46 C.J. 927, 928; notes in 10 A.L.R. 201, 44 A.L.R. 1477, 53 A.L.R. 595, and 93 A.L.R. 333.

The question whether a county highway superintendent is to be regarded as a public officer must be determined by...