I am unable to agree with the conclusion reached by my associates in this case. The Workmen's Compensation law was enacted to provide "for workmen injured in *Page 579 hazardous employments and their families and dependents sure and certain relief . . . regardless of questions of fault." Laws 1919, chap. 162, § 1. It applies to the state and all political subdivisions thereof as well as to private employers. Id. § 2. An employee means every person engaged in a hazardous employment under any appointment or contract of hire. Id. § 2. It is conceded that a deputy sheriff is an employee engaged in hazardous employment and, hence, subject to the protection of the act. See Fahler v. Minot, 49 N.D. 960, 194 N.W. 695; Crandall v. North Dakota Workmen's Comp. Bureau, 53 N.D. 636, 207 N.W. 551.
In Altman v. North Dakota Workmen's Comp. Bureau, 50 N.D. 215, 195 N.W. 287, 28 A.L.R. 1337, the question arose whether, or, to what extent, the original act applied to an employment between a North Dakota employer and an employee working without the state. The precise question involved in the case was stated in the opinion therein as follows: "Did the legislature intend that the Compensation Act should operate to insure all persons employed under a North Dakota contract, regardless of where the parties intend the contract of employment to be performed?"
After careful consideration this court reached the conclusion that the act did not "evidence any intention on the part of the legislature to give the Compensation Act extra-territorial effect, so as to render the Compensation Fund liable for injuries sustained in the course of an employment the situs of which iswithout the state." 50 N.D. 225, 226. The court pointed out the reasons impelling this conclusion, among others being the right of the state to supervise, regulate and control the employment; but it took pains to indicate that there was no intention to hold that an employee in a hazardous employment within the state, would be barred from recovery because he was injured beyond the borders of the state while in the performance of some work incidental to an employment within the state. The court said: "If the state cannot supervise, regulate or control the employment in the exercise of its police power, it is difficult to see on what theory injuries in such employment should be compensated out of a fund created by levies upon industry in North Dakota, unlessthe employment beyond the borders be merely an incident to anemployment within the state. It is not intended to hold that a person who is injured beyond the *Page 580 borders of the state in service which is incidental to anemployment within the state, may not recover under the compensation law. That question is essentially different and is not before us."
The legislative assembly in 1923 amended and re-enacted § 10 of the original act so as to read as follows:
"The Workmen's Compensation Bureau shall disburse the Workmen's Compensation Fund to such employees of employers as have paid into the said fund the premiums applicable to the classes to which they belong, who have been injured in the course of their employment, wheresoever such injuries have occurred, or to their dependents in case death has ensued, and such payment or payments to such injured employees, or to their dependents in case death has ensued, shall be in lieu of any and all rights of action whatsoever against the employer of such injured or deceased employee, but no compensation shall be paid on account of injuries occurring outside of the state of North Dakota, nor because of death due to an injury occurring outside of the state of North Dakota, unless the employer and the Bureau shall have previously contracted for insurance protection for employees while working outside of the state in the employment in which the injury occurred. Provided that no such contract shall be issued to any employer unless his principal plant and main or general office is located in North Dakota and at least two-thirds of whose entire payroll is used or expended for work performed in the state of North Dakota." Laws 1923, chap. 350.
It is this enactment which the majority members say precludes the plaintiff from recovery in this action.
It should be borne in mind that the enactment of 1923 amended only one section of the Workmen's Compensation Act. The question is: In what particular was it sought to change the then existing law?
At the time of the enactment of chapter 350, Laws 1923, the North Dakota Workmen's Compensation Act could not be applied to an employment the situs of which was wholly without the state. An individual or corporation whose principal business establishment was in this state, with practically the entire payroll therein, who had some minor establishment or undertaking outside the state, could not obtain coverage in the North Dakota Workmen's Compensation Fund for the employees who were wholly or primarily engaged in the performance *Page 581 of work outside the state. This brought about a situation making it desirable to amend the act so as to permit the North Dakota Workmen's Compensation Bureau to insure North Dakota employers so as to give them full coverage for employees outside of the state as well as within, subject to the limitations prescribed in the act. In my opinion the legislative assembly had no intention to make any change in the law then existing so far as concerned employments within the state. A deputy sheriff would be engaged in an employment the situs of which is wholly within the state. Any activity on his part outside of the state would be wholly incidental to his employment within the state. Is it reasonable to assume that the legislative assembly, by the amendment which it enacted in 1923, intended to change the rule so as to take away from such employee the protection which he had under the former law? I think not. The language of the statute indicates clearly that what the legislature had in mind was employment the situs of which was without the state. There was no intention to take away from any employee in an employment within the state any protection which he had under the original act.
If, as the majority members say, insurance in a case like this is dependent upon the making of a "special" or "express" contract, then it would be possible and quite likely that in some counties the authorities would make an "express" or "special" contract with the Workmen's Compensation Bureau, so as to afford protection while in others they would not. Even in the same county arrangement might be made for an "express" or "special" contract to protect some and not others. The very uniformity of protection which the statute contemplates for public employees would be wanting. But the statute makes no reference to "express" or "special" contracts. No such term is found in the statute. It says there shall be no compensation paid on account of injuries occurring outside the state nor because of death due to an injury occurring outside the state, "unless the employer and the Bureau shall have previously contracted for insurance protection for employees working outside of the state in the employment in which the injuries occurred."
I see no reason why under the terms of the 1923 act the previous contract, to which the statute refers, may not be made in precisely the same manner as contracts are made under the act for insurance against injuries sustained by employees in the course of employment within the *Page 582 state. If the compensation bureau is fully informed of the nature of the work of an employee, and that work entails in part, as an incident to the employment within the state, the performance of certain duties without the state, with the pay-roll covering the work as an entirety, then it seems to me that there clearly exists a situation where the employer and the Compensation Bureau have previously contracted that the insurance shall cover the entire employment including injuries that may be sustained without the state. It seems to me that when insurance is obtained for an employee who, in the very nature of things, may be required to perform part of his duties outside the state, incidental to the employment within the state, that a contract such as the statute contemplates should be implied. Certainly this would be the rule if we were dealing with a private insurance company and I see no reason why the same rule should not be applicable here. Bordson v. North Dakota Workmen's Comp. Bureau, 49 N.D. 534, 541, 191 N.W. 839, 842.
Inasmuch as the majority opinion is predicated upon the theory that the injuries in question here were sustained in the course of employment, — provided the insurance covers injuries sustained outside of the state, — I have not considered the question whether the injuries were sustained in the course of employment. The members of the legislative assembly, however, as evidenced by their enactment in 1931, were of the mind that the injuries so sustained by a peace officer outside of the state in the discharge of duties arising within the state, would be sustained in the course of his employment (Laws 1931, chap. 313), and it seems to me that this is a reasonable construction. It seems that an officer who, in the conscientious discharge of his duties, continues to follow an offender against the laws of this state, whom he is seeking to apprehend, into an adjoining state, is pursuing rather than deviating from, or abandoning, his line of duty.