#### JOHN T. BORDERS, Employee, v. J. R. CLINE, Sheriff of CLEVELAND COUNTY, Employer, AMERICAN EMPLOYERS INSURANCE COMPANY, Carrier, and HEY ROSS, Employee, v. J. R. CLINE, Sheriff of CLEVELAND COUNTY, Employer, AMERICAN EMPLOYERS INSURANCE COMPANY, Carrier, and LON BYERS, Employee, v. J. R. CLINE, Sheriff of CLEVELAND COUNTY, Employer, AMERICAN EMPLOYERS INSURANCE COMPANY, Carrier.

(Filed 24 November, 1937.)

1. Master and Servant § 37—

The North Carolina Workmen’s Compensation Act is to be liberally construed to effectuate the intent of the Legislature as gathered from the language of the act.

2. Master and Servant § 38—

The Workmen’s Compensation Act is to be liberally construed to include all employments coming within the natural or ordinary meaning of the language used, but it may not be given a strained construction so as to include an occupation not’ coming within its terms.

8. Sheriffs § 1—

A sheriff occupies a constitutional (Art. IV, sec. 24) public office, and a sheriff takes office, not by contract, but by commission subject to the power of the Legislature to fix fees and compensation for which the Constitution does not provide.

4. Sheriffs § 2 — Nature of office of deputies sheriff.

A sheriff may appoint deputies to perform the ministerial duties of his office, a general deputy having authority to execute all the ordinary duties of the office of sheriff, and a special deputy being authorized to perform a specific act, and functions of deputies, sheriff are of a public character, and their fees, fixed and paid as prescribed by statute and not by the sheriff.

5. Master and Servant § 38 — Deputies sheriff are not employees of sheriff within meaning of Workmen's Compensation Act.

Deputies sheriff are not employees of the sheriff within the meaning of the North Carolina Workmen’s Compensation Act, and are not entitled to compensation for injuries resulting from an accident arising out of and in the course of the discharge of their duties, since they occupy a public office and their compensation is fixed and paid as prescribed by statute and not by the sheriff, and the discharge of their duties is not an “employment” within the meaning of that term as used in the Compensation Act. N. C. Code, 8081 (i), (a, b, c).

6. Same — Amendment allowing sheriffs to exempt themselves from Compensation Act cannot enlarge meaning of words of original act.

Since deputies sheriff are not employees of the sheriff within the meaning of the Compensation Act, the amendment of the act by sec. 2, ch. 274, *473Public Laws of 1931, permitting a sheriff to exempt himself from the operation of the act by giving the notice prescribed, cannot have the effect of bringing deputies sheriff within the intent and meaning of the act, nor may the fact that a sheriff purchases insurance to cover his compensation liability have the effect of enlarging or extending the language of the act.

Devin, J., dissenting.

Clarkson and Schenck, JJ., concur in dissent.

Appeal by defendants from Alley, J., at November Term, 1936, of ■CLEVELAND.

Proceeding under North Carolina Workmen’s Compensation Act to determine liability of defendants to claimants, respectively.

The Commissioner bearing the cases found the following facts, which were later adopted and approved by the Full Commission. As to claimant, John T. Borders:

“1. J. R. Cline, is the high sheriff of Cleveland County. He hits more than five deputies sheriff and other helpers in connection with his office as sheriff of the county. He has purchased workmen’s compensation insurance to cover his compensation liability. The American Employers’ Insurance Company is the carrier.

“2. John T. Borders is a deputy sheriff duly appointed by J. R. Oline, .the high sheriff of Cleveland County. He was instructed by the high sheriff to «transport to Goldsboro, North Carolina, two insane Negro women. He was allowed five cents a mile for the use of his automobile and for the payment of his time for services rendered.

“3. He suffered an injury by accident which arose out of and in the course of his employment and has been totally disabled since the date of the accident.

“4. He was earning as wages less than $10.00 a week as deputy sheriff.

“5. He received his compensation for services rendered as a deputy sheriff in the form of fees for serving papers, for attending trials in criminal cases, and doing other services that a deputy sheriff is ordinarily called upon to do on a fee basis.

“6. It was the duty of the sheriff to transport the two insane Negro women to Goldsboro, North Carolina. The sheriff was paid for this transportation by the county commissioners and the sheriff, in turn, turned the money over to the deputy sheriff, John T. Borders.”

As to claimants Hey Ross and Lon Bowers the same facts were found, except that the two were specially deputized to assist John T. Borders in transporting the two insane Negro women to Goldsboro.

Upon these findings the Commissioner and the Full’Commission concluded that each of these claimants as deputy sheriff is an employee of *474tbe sheriff under the provisions of the Workmen’s Compensation Act and entitled to the protection of law. Thereupon an award was made to each of the claimants.

On appeal to the Superior Court the three cases were consolidated for hearing. Judgment was signed affirming the findings of fact and conclusions of law and award of the North Carolina Industrial Commission as to each of the claimants.

From judgment thereon in accordance therewith the defendants appealed to the Supreme Court and assigned error.

B. T. Falls for claimants, appellees.

King & King and J. A. Qannon, Jr., for defendants, appellants.

WiNBORNE, J.

The question here involved: Is a deputy sheriff an employee of the sheriff, by whom he is appointed, within the meaning of the North Carolina Workmen’s Compensation Act? We hold that he is not.

This specific question has not been passed upon by this Court. However, in the case of Starling v. Morris, 202 N. C., 564, at 568, Connor, J., stated: “The question as to whether the relation between the sheriff of a county in this State, and one who has been appointed by him as a deputy is that of employer and employee, within the meaning of those words as used in the North Carolina Workmen’s Compensation Act is not presented by this appeal. In view, however, of the definition in the statute of the words 'employment,’ 'employer’ and 'employee’ as used there, it may well be doubted that a deputy sheriff is an employee of the sheriff by whom he was appointed, within the meaning of those words as used in the act.”

In considering the question it is necessary to interpret the pertinent sections of the Compensation Act under appropriate rules.

The Workmen’s Compensation Act should be liberally construed so as to effectuate the Legislature’s intent or purpose which is to be ascertained from the wording of the act. 71 C. J., 341; Johnson v. Hosiery Co., 199 N. C., 38, 153 S. E., 591; Rice v. Panel Co., 199 N. C., 157, 154 S. E., 69; Reeves v. Parker, 199 N. C., 236, 154 S. E., 66; Williams v. Thompson, 200 N. C., 463, 157 S. E., 430; West v. Fertilizer Co., 201 N. C., 556, 160 S. E., 765.

Again, “The rule has been said to be, to construe a compensation statute so as to include all services which can reasonably be said to come under the provisions; thus, with regard to the employments to which they apply, the acts are to be construed liberally. . . . Even such a provision, however, will not permit a forced construction to be given to their wording; and, apart from such provisions, the rule of *475liberal construction cannot be carried to tbe point of applying an act to employments not within its stated scope, or not within its intent or purpose, or of supporting a strained construction to include an occupation or employment not falling within it.” 71 C. J., 359.

The words used in the statute must be given their natural or ordinary meaning. 71 C. J., 353; Asbury v. Albemarle, 162 N. C., 247, 78 S. E., 146; Comrs. v. Henderson, 163 N. C., 114, 79 S. E., 442; Whitford v. Ins. Co., 163 N. C., 223, 79 S. E., 501; Motor Co. v. Maxwell, 210 N. C., 725, 188 S. E., 389; S. v. Whitehurst, ante, 300.

With these rules for guidance we find as the definitions of the words “employment,” “employee” and “employer,” as used in the North Carolina Workmen’s Compensation Act, in so far as pertinent t.o facts of instant case, C. S., 8081 (i)., a, b, and c, that: “(a) The term ‘employment’ includes employment by the State and all political subdivisions thereof and all public and gitcm-public corporations therein and all private employments in which five or more employees are regularly employed in the same business or establishment, except agriculture and domestic service and sawmills and logging operators in which less than fifteen employees are regularly employed.” “(b) The term ‘employee’ means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written. . . .” “(c) The term ‘employer’ means . . . every person carrying on any employment. . . .”

In reading these three sections it is seen that the word “employment” is the basic factor in determining who are “employees” and “employers” within the meaning of the act. Hence, the question: Is the position of deputy sheriff an “employment” as' defined in that part reading, “All private employments in which five or more employees are regularly employed in the same business or establishment.” Analyzing that clause it is seen that the word “employments” is limited by the adjective “private,” and further by the words “business or establishment.” In Webster’s New International Dictionary, 2nd ed., we find the word “private” defined: “Belonging to, or concerning, an individual person, company or interest; peculiar to oneself; unconnected with others; personal; one’s own; not public; not general; separate; as a man’s private opinion; private property; a private purse; private expenses or interests; a private secretary; opposed to public. Not invested with, or engaged in, public ■ office or employment; not public in character or nature; as a private citizen.” The word “business” is defined as “A commercial or industrial establishment or enterprise.” “Establishment” is defined as “An institution or place of business, with its fixed or organized staff, as a manufacturing establishment.” These words, when given the natural or ordinary meaning, clearly indicate reference *476to commercial or industrial employment of a private character as contra-distinguished from public office.

The office of sheriff is constitutional. N. 0. Constitution, Art. IV, sec. 24. It is a public office.- Public office is not private property. Mial v. Ellington, 134 N. C., 131, at 162. A sheriff takes office, not by contract, but by commission subject to the power of the Legislature to fix fees and compensation for which the Constitution does not provide. Comrs. v. Stedman, 141 N. C., 448, 54 S. E., 269; Bunting v. Gales, 77 N. C., 283; Mills v. Deaton, 170 N. C., 386, 87 S. E., 123. The office of sheriff is one of public confidence and fidelity to a public trust, and cannot be a matter of bargain and sale. Cansler v. Penland, 125 N. C.,, 578, 34 S. E., 683. In the main the duties of the office are prescribed by statute, Comrs. v. Stedman, supra, and are ministerial in character, and, as to such ministerial duties, it is implied, when not so provided by statute, that he may act by a substitute or deputy. Yeargin v. Siler, 83 N. C., 348; R. R. v. Fisher, 109 N. C., 1.

There is no statutory authority for appointment of deputies sheriff. However, “the deputy is an officer coeval in point of antiquity with the sheriff.” Lanier v. Greenville, 174 N. C., 311, 93 S. E., 850.

“There are two kinds of deputies sheriff well known in practice: (1) A general deputy or under sheriff who, by virtue of his appointment, has authority to execute all the ordinary duties of the office of the sheriff, and who executes process without special power from the sheriff; and (2) a special deputy, who is an officer pro hac vice, to execute a particular writ in some certain occasion, and who acts under a specific and not a general appointment and authority.” Lanier v. Greenville, supra.

It is said in 57 C. J., 731, sec. 4, “A deputy is the deputy of the sheriff, one appointed to act ordinarily for the sheriff and not in his own name, person or right, and although ordinarily appointed by the sheriff, is considered a public officer.”

The duties and authority of a deputy sheriff relate only to the ministerial duties imposed by law upon the sheriff. How those duties are to be performed and the ends to be accomplished are as prescribed and directed by law, and not in accordance with the direction and discretion of the sheriff. By appointing a deputy the sheriff merely delegates to him the authority to execute ministerial functions of the office of sheriff. Those functions are of a public character.

The compensation of the fee deputy is that fixed by statute for the performance of duties required of the sheriff. It is paid as prescribed by statute and not by the sheriff.

“An employee is one who works for another for wages or salary, and the right to demand pay for his services from his employer would seem *477to be essential to bis right to receive compensation under tbe Workmen’s Compensation Act, in ease of injury sustained by accident arising out of and in tbe course of tbe employment.” Stacy, C. J., in Hollowell v. Dept. of Conservation and Development, 206 N. C., 206, 173 S. E., 603, citing In re Moore, 187 N. E., 219. Bashan v. County Comrs. (W. Ya., 1933), 171 S. E., 893.

In tbe instant case tbe claimant Borders is a regular deputy appointed by tbe sheriff, and received as bis only compensation fees fixed by statutes. Claimants Eoss and Byers were special deputies to assist in tbe execution of tbe writ issued by tbe clerk of tbe Superior Court under statutory authority, committing tbe insane persons to tbe hospital. C. S., 6193. Tbe cost and expense of conveying these persons to tbe hospital in accordance with tbe writ is required to be paid by tbe treasurer of the county upon order of tbe board of county commissioners. C. S., 6202.

Claimants contend that tbe amendment to sec. 17 of tbe Compensation Act (sec. 2, cb. 274, Public Laws 1931) which permits any sheriff to exempt himself and any and all deputies appointed by him from tbe provisions of tbe act by notice in writing to the Industrial Commission, manifests tbe intent of tbe Legislature to include sheriffs and their deputies within tbe meaning of tbe act. If tbe wording of tbe original act be not sufficient to include them, then “sheriffs and their deputies” cannot be read into tbe meaning of tbe words, originally used, by an amendment permitting a sheriff to exclude himself and bis deputies. “It is ours to construe tbe laws and not to make them.” . . . “It is in tbe province of tbe law-making power to change or modify tbe statute, not ours.” . . . “It is ours only to declare tbe law, not to make it . . .” Stacy, C. J., in S. v. Whitehurst, ante 300, citing authorities.

Claimants further contend that in view of tbe fact that tbe defendant sheriff has purchased compensation insurance to cover bis compensation liability, tbe amendment to sec. 14 (b) of tbe Compensation Act (cb. 150, Laws 1935), C. S., 8081 (u) (b), affords a foothold upon which this case may stand. Holding that tbe relationship of employer and employee, within tbe meaning of tbe North Carolina Workmen’s Compensation Act, does not exist between a sheriff and bis deputy, the provisions of this amendment are not applicable to tbe ease in band. Tbe defendant sheriff “purchased workmen’s- compensation insurance to cover bis compensation liability.”

Tbe judgment of tbe court below is

Eeversed.

*478Devin, J.,

dissenting:

I am constrained to the view that the comprehensive language of the Workmen’s Compensation Act and the statutory definitions of the terms “employment,” “employer,” and “employee” are sufficiently broad to embrace the service or employment of the sheriff’s deputies. Every contract of service, written or implied, is presumed to have been made subject to the provisions of the act, unless therein exempted. C. S., 8181 (m).

This view is strengthened by the specific reference in the act to deputies sheriff as follows: "Provided, however, that any sheriff may exempt himself, and any and all deputies appointed by him, from the provisions of this act by notice in writing to the Industrial Commission.” C. S., 8081 (x). The legislative intent that deputies sheriff be subject to the provisions of the act seems apparent. The heart of a statute is the intent of the lawmaking body. That is the cardinal rule of interpretation and construction. Trust Co. v. Hood, Comr. of Banks, 206 N. C., 268, 173 S. E., 601; S. v. Humphries, 210 N. C., 406, 186 S. E., 473. The portion of the act quoted above should not be disregarded. It forms the basis for the uniform ruling of the Industrial Commission that injuries by accident to deputies sheriff, arising out of and in the course of their employment as such, are compensable.

In the instant case the sheriff, with due consideration of the dangers constantly attending the services of his deputies, instead of seeking exemption for himself, has paid for insurance so that relief might be readily available for them, and the insurance carrier, for agreed compensation, has contracted to underwrite the casualty.

This construction of the Workmen’s Compensation 'Act imposes no unnecessary hardship upon the sheriff, since he may at any time exempt himself with reference to his deputies from the provisions of the act by a notice in writing to the Industrial Commission to that effect.

The fact that the fees received by the deputy are not usually paid to him by the sheriff should not be held controlling, for the reason that compensation for his service is received by him by virtue of his appointment and employment by the sheriff in whose name alone he is empowered to act.

For instance, it has been uniformly held that a caddy employed by a golf, club, but paid by those for whom he caddies, is an employee of the club within the meaning of the Workmen’s Compensation Act. Claremont Country Club v. Industrial Accident Commission, 174 Cal., 395; Indian Hill Club v. Industrial Commission, 309 Ill., 271; Bynum v. Knighton, 137 Ga., 250.

It may not be out of place to say that, while the employment or office of deputy sheriff may not be rated very highly in dignity or emoluments, those who fill these’ positions are called upon to render *479necessary and valuable service to the public, frequently involving danger to themselves, and society is largely dependent upon them for local enforcement of law and for carrying on the orderly processes of the administration of justice.

I am authorized to say that Claekson and Sohenck, JJ., join in this opinion.