Roush v. Town of Esmond, 9096

• Decision Date: 26 July 1950
• Docket Number: No. 9096,9096
• Parties: ROUSH v. TOWN OF ESMOND.
• Court: South Dakota Supreme Court

Page 547

43 N.W.2d 547

73 S.D. 406

ROUSH v. TOWN OF ESMOND.

No. 9096.

Supreme Court of South Dakota.

July 26, 1950.

Rehearing Denied Sept. 28, 1950.

Harry J. Eggen, De Smet, Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellant.

Royhl & Benson, Huron, for claimant and respondent.

SMITH, Judge.

Whether the proof established the relation of employer and employee between the town of Esmond, a municipal corporation of the third class, SDC 45.0102, and the claimant, Cecil Roush, is the principal question presented by this appeal from an award of workmen's compensation under the provisions of SDC 64.

The town of Esmond had formerly operated an electric utility. The system had been abandoned in anticipation of service to the community by an REA project. From conflicting testimony the Industrial Commissioner was justified in believing the following facts. While all of the members of the governing body of the town were together at the place of business of one of their number, it was informally agreed that the poles and wires of the abandoned municipal system should be removed from the streets and that eighty cents per hour should be paid for the work. No minutes were made of this meeting. Several weeks thereafter one of the members of the board told Cecil Roush to go ahead with the work on that basis. It was understood that he was to secure a helper. He was directed to remove the wire and wind it up, and to pile the poles on a vacant lot. A second member of the board talked with him about the best method of doing the work just before he started the task. A third member of the board worked with Roush. Thus all of the members of the board knew he was undertaking the work before he did anything. Within about two hours after Roush commenced working, he ascended a ladder he had placed against a pole; the pole gave way; and he fell to the ground. A very serious spinal injury resulted.

Predicated upon these facts the Industrial Commissioner determined that Roush was in the service of the town of Esmond under a contract of employment at the time of his injury and made a substantial award of compensation. On appeal to the circuit court a modification of the award was directed, and as modified the award was affirmed. The town has appealed.

The statutes dealing with workmen's compensation provide that the term 'employer' shall include any municipal corporation within the state and define an 'employee' as 'every person, including a minor, in the services of another under any contract of employment, express or implied', except certain persons described in the statute. SDC 64.0102. The decisions which construe these statutes hold that the existence of the contractual relation of employer and employee, except in certain instances not here involved, is essential to recovery of workmen's compensation in this jurisdiction. Bergstresser v. City of Willow Lake, 63 S.D. 386, 259 N.W. 276; Schumacher v. Schumacher, 67 S.D. 46, 288 N.W. 796.

We understand respondent's brief to concede that these provisions have reference to a contract express or implied in fact as defined by SDC 10.0601, as follows, 'An express contract is one, the terms of which are stated in words. An implied contract is one, the existence and terms of which are manifested by conduct.' We entertain the view that the relation of employer or employee can only arise out of a contract, either express or implied in fact.

The contention that the facts we have detailed are not sufficient in law to establish the essential contractual relation of employer and employee centers around the provisions of SDC 45.0107 reading as follows: 'Contracts of a municipality shall not be valid unless authorized by a vote of the governing body at a duly assembled meeting thereof.' We have reluctantly arrived at the conclusion that the facts fail to show such an effective authorization by the governing body of the town of Esmond as is essential to the existence of either an express or an implied contract of employment.

It is the contention of claimant that a contract for the work of removing the poles and wires was authorized at the described meeting of the members of the board and that the validity of a contract, express or implied, made pursuant thereto does not depend upon a record of the meeting in the minutes of the board. We shall consider that contention.

The provision we have quoted from SDC 45.0107 must be looked at in its relation to other statutes dealing with our municipal corporations, and certain of the decisions of this court.

By SDC 45.1008 it is provided: 'The word 'resolution' as used in this title shall mean any determination, decision, or direction of the governing body of a municipality of a special or temporary character for the purpose of initiating, effecting, or carrying out its administrative duties and functions under the laws and ordinances governing the municipality.'

By SDC 45.1009 it is provided: 'A resolution may be passed after one reading. It shall be recorded at length in the minutes of the meeting at which it is passed, with a statement of the number of votes for and against the same. It shall be published in full as part of the minutes.'

By SDC 45.0101(8) it is provided: 'Any requirement for publication shall mean publication in the official newspaper of the municipality concerned or affected, if any; but if none, then in a legal newspaper published in such municipality, if any; but if none, then by posting in three of the most public places in the municipality during the period required for publication but for not less than ten days prior to the hearing or event or lapse of the time fixed.'

By SDC 45.1116, as amended by Ch. 164, Laws of 1943, it is provided: 'The governing body of every city, town and village shall cause to be published in the official newspaper therein, or, if no official newspaper has been designated therein, in any legal newspaper published within such city, town or village, within thirty days after each meeting thereof a full account of the proceedings at such meeting, giving a detailed statement of all expenditures of money, the names of the persons to whom payment is made, and showing the service rendered therefor. * * *' Subsequently amended by Ch. 202, Laws of 1947.

By SDC 45.1010, it is provided: 'Except such resolutions or ordinances as may be necessary for the immediate preservation of the public peace, health, or safety, or support of the municipal government and its existing public institutions, which take effect upon the passage and publication thereof, every resolution or ordinance passed by the governing body shall take effect on the twentieth day after its publication unless suspended by operation of a referendum.'

By SDC 45.1011 provision for a referendum is made in words as follows: 'The required number of qualified electors residing in any municipality may file within twenty days after publication of any ordinance or resolution subject to referendum a petition with the auditor or clerk, requiring him to submit any such ordinance or resolution to a vote of the electors of the municipality for its rejection or approval.

'A special election shall be held for the purpose within thirty days after the filing of such petition; except that when such petition is filed within three months prior to the annual municipal election, such ordinance or resolution shall be submitted at such annual election if there is time to give notice thereof.' Subsequently amended by Ch. 198, Laws of 1947.

The acts of a governing body of a municipality which are subject to the foregoing provisions and to referendum were considered in State ex rel. Wagner v. Summers, 33 S.D. 40, 144 N.W. 730, 50 L.R.A.,N.S., 206, Ann.Cas.1916B, 860, and in State ex rel. Martin v. Eastcott, 53 S.D. 191, 220 N.W. 613, 614. In the Eastcott case it was written:

'Cases like Murphy v. Gilman, 204 Iowa 58, 214 N.W. 679, in which distinction is made between acts of municipal bodies which are legislative in character and acts which are only administrative, and hold that only legislative acts are subject to the referendum, are of no aid in solving the question in this case because our statutes, which define an ordinance as 'a permanent legislative act of the governing body of a municipal corporation within the limits of its powers,' and a resolution as 'any...