Hutton v. State
| Decision Date | 17 October 1944 |
| Docket Number | 46529. |
| Citation | 16 N.W.2d 18,235 Iowa 52 |
| Parties | HUTTON v. STATE. |
| Court | Iowa Supreme Court |
John M. Rankin, Atty. Gen., and Robert L. Larson Asst. Atty. Gen., for appellant.
Lee & Walsh, of Ames, for appellee.
M. L. Hutton state conservation director, died in February, 1941, from injuries received shortly prior thereto in an automobile accident, arising out of and in the course of the performance of his duties. His widow instituted proceedings under the Workmen's Compensation Act against State of Iowa (conservation commission). An award of compensation was made upon arbitration, was sustained upon review and was affirmed by the district court. The state has appealed.
Section 1421, Code of Iowa 1939, provides in part:
'3. The following persons shall not be deemed 'workmen' or 'employees': * * *
Appellant contends decedent was not an employee but was a public officer within the meaning of the foregoing exception.
The state conservation commission was created in 1935 by Chapter 13 of the 46th G. A., which consolidated in it the offices, duties and powers of the state fish and game commission, the state board of conservation, and the forestry commissioner.
The part of the act creating the commission and prescribing its organization (with certain subsequent amendments) is now Chapter 85.1 (Sections 1703.28 to 1703.53) Code of Iowa 1939.
Section 1703.49 requires the commission to protect, propagate and preserve, the fish, game, fur-bearing animals and protected birds of the state and to enforce laws, rules and regulations relating thereto. Section 1703.50 empowers the commission to expend all moneys of the fish and game protective fund, to acquire, improve and maintain lands and waters for public hunting, fishing and trapping, and for fish hatcheries, game farms and wild life refuges, to furnish fish, game and wild life to stock the lands or waters of the state, to adopt departmental rules governing procedure, to adopt and enforce administrative orders fixing seasons territorial limits, bag limits, etc. of fish, game and wild life, and to pay all salaries and operating expenses of the department. The two foregoing sections were originally enacted in 1931 in the act creating the state fish and game commission. Section 1703.38 provides:
Section 1703.39 provides the director shall serve during the pleasure of the commission at an annual salary, not to exceed $4,000.00, to be fixed by it. Section 1703.40 provides the director shall, with the consent of the commission and at salaries to be fixed by it, employ such assistants as may be necessary to carry out the duties imposed on the commission and under the same conditions shall appoint such officers to be known as state conservation officers, as may be necessary to enforce the laws, rules, and regulations, the enforcement of which are imposed upon said commission.
Section 1703.43 provides:
'The appointees and employees aforesaid may be removed by the said director at any time subject to the approval of the commission.'
It has been said that it is difficult to define with accuracy the term 'public officer' as distinguished from 'employee'. One definition approved by various courts is that to make a public employment a public office, five elements are indispensable:
(1) It must be created by the constitution or legislature or through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government; (3) the duties and powers must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) the office must have some permanency and continuity, and not be only temporary and occasional. State ex rel. Barney v. Hawkins, 79 Mont. 506, 257 P. 411, 53 A.L.R. 583. See also notes in 53 A.L.R. 595; 93 A.L.R. 333 and 140 A.L.R. 1076.
Barney v. Hawkins, supra, quotes with approval from the frequently cited case of State v. Spaulding, 102 Iowa 639, 72 N.W. 288. While the definition in the Spaulding case is in different form and somewhat less comprehensive, the discussion therein recognizes the elements listed above. Various authorities recognize other elements which are usually, though not necessarily, attached to a public office. However, each case turns upon its own particular circumstances.
In this case most of the essential elements of a public office are present. The focal question is whether or not the statutes delegate to the conservation director sovereign powers, to be exercised by him, independently, for the benefit of the public.
The only statutes relating to the powers and duties of the director of conservation thus far mentioned are contained in Chapter 85.1 of the Code. Apparently no other statutes were presented or considered in the various trials leading up to this appeal. Had the powers and duties of the director been limited to those conferred in said Chapter it may be that the position would not have been a public office. See In re Nagler, 194 Wis. 437, 216 N.W. 493; Kirby et al. v. Nolte et al., 349 Mo 1015, 164 S.W.2d 1; State ex rel. Nagle v. Page, 98 Mont. 14, 37 P.2d 575, and authorities hereinbefore...
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