The principal applied by the majority and the nature of the views below stated may appear as sufficient to justify an expression of the reasons for my dissent.
Among others not differing in legal effect or altering their meaning and import, the industrial commissioner found as follows:
"II. That on the 19th day of September, 1946, James Gulbrandson was in the employment of both the employers above named, that is, the Town of Midland, South Dakota, and Haakon County, South Dakota, in the capacity of a law enforcement officer, he havingbeen legally deputized in such capacity for each of saidemployers."
"VIII. That the decedent, James Gulbrandson, was deputized as a law enforcement officer in behalf of both *Page 474 said Employers during an emergency and in a time of stress, the employment by the employer, Haakon County, having resulted from the joint action of one Paul Ratigan and one Charles Schofield, both agents of said Haakon County and, at the time of such employment, both charged with the duty of enforcing the law for and on behalf of said Haakon County; and the employment of thedecedent as an enforcement officer for the Employer, the Town ofMidland, having resulted from the action of the said CharlesSchofield, who at the time of the employment, was also an agentof the employer, the Town of Midland, and charged with the dutyof enforcing the law for and on behalf of said town. That the decedent at the time of the said accident, and resulting death, was acting under authority conferred upon him by the said Paul Ratigan and said Charles Schofield. The two official capacities in which the said Charles Schofield was then functioning, that is, as a law enforcement officer for both Haakon County and the Town of Midland, were concurrent and indistinguishable at the time the said Schofield deputized the decedent." (Emphasis supplied.)
The emphasized parts of the findings quoted above form the basis for my departure from the opinion of the majority. Upon the quoted declarations the commissioner based the general conclusion that the marshal, Schofield, had authority to enlist the citizens of Midland to assist in law enforcement and to bind the town as an employer of such citizens. An award of $2500 as against the Town of Midland is affirmed by the judgment of the circuit court.
As appears from the opinion of the majority, Schofield was asked by an officer at Philip to apprehend two young men sought for a felony they had committed at Cottonwood and who thereafter had started eastward. Thereupon Schofield enlisted the aid of Gulbrandson and Mousseau and declared to them that he was deputizing them as deputy sheriffs. He did not ask assistance from Gulbrandson on behalf of the town of Midland. Without affixing any particular legal effect to the declaration of Schofield that he was appointing Gulbrandson as a deputy sheriff, we must nevertheless attach thereto the factual significance, i.e., that *Page 475 Schofield enlisted the aid of Gulbrandson as an assistant to the sheriff and so stated.
It is my view that it was not a municipal function on the part of the Town of Midland to engage in the business of pursuing and capturing felons who escaped from Cottonwood or elsewhere. Support for this view is the specific declaration of duties of the sheriff as found in SDC 12.1001, to wit: "He (the sheriff) must pursue and apprehend all felons, * * *". By this provision I believe it was clearly intended to impose upon the sheriffs of the state the responsibility for the capture of fugitives from justice and, attendant with that responsibility, the incidental risks and liabilites. That other officers named in SDC 45.1112 are charged with the duty of preserving the peace is altogether plain. As I view the matter, however, there is a decided difference between the duty of keeping the peace in a given municipality and that of running down felons who are wanted because of crimes committed elsewhere. Such a distinction is recognized also by SDC 45.1133 which clothes all policemen with authority to pursue and arrest fugitives from justice. I think it is too obvious to admit of other contention that if a town marshal is about the business of trying to arrest a person whose custody is sought because of his criminal conduct at a place other than in the marshal's town such officer proceeds under permissive authority granted by said section 45.1133 and not under SDC 45.1112 vesting a town marshal with power "to suppress disorder and keep the peace". Nothing contained in SDC 45.1133 invites the belief that when a marshal or policeman attempts an exercise of the authority therein granted such officer is then on a mission for the town by which he is employed and being on such mission he may operate under SDC 45.1112 and summon aid which is not needed to preserve the peace of the town and thereafter use that aid in an attempt to capture a felon sought for a crime committed elsewhere.
For the peace and protection of the townspeople the marshal may command assistance in order to suppress lawlessness existing in his town. When a marshal pursues such *Page 476 an endeavor some authorities uphold the allowance of a recovery by an assistant to him upon the theory and premise that those called to the aid of the marshal are carrying out a duty devolving upon such officer, and such assistants are therefore regarded as servants or employees of the town in performing one of its duties and governmental functions. I find no case, however, affixing to a municipality the character of an employer in an instance where a town officer seeks to exercise authority only as is allowed him under SDC 45.1133. My opinion is that the powers of a marshal, "within the jurisdiction of the municipality, * * * to suppress disorder and keep the peace", do not include authority to him to enlist the townsmen in the business of apprehending felons wanted for lawlessness committed elsewhere and thus impose upon a municipality the risks and liabilities incident to that kind of law enforcement. It is a matter of common knowledge, and as is reflected by the record in this case, that town marshals are not equipped for the business of pursuing and capturing felons. Simply that they "may" do so under SDC 45.1133 does not make it follow, as I view it, that the town is thus placed in that business and thereby rendered liable as an employer of those aiding in this special mission. I find nothing in the record in this case to support the view that Gulbrandson was pressed into service that he might aid the marshal in suppressing disorder or preserving the peace in Midland. There is no showing that affairs at Midland were other than altogether orderly and quiet as the officer looked to the west for the expected approach of the felons.
The opinion of this court in O'Rourke v. City of Sioux Falls,4 S.D. 47, 54 N.W. 1044, 1045, 19 L.R.A. 789, 46 Am. St. Rep. 760, declares:
"There are two kinds of duties imposed upon a municipal corporation, in respect to which there is a clear distinction, — one is imposed for governmental purposes, and is discharged in the interest of the public, and the other arises from the grant of some special power, in the exercise of which the municipality acts as a legal individual. * * * In the enactment of ordinances, and in the appointment of officers *Page 477 and agents for their enforcement, the municipality is exercising a governmental authority, and, within its limits, acts as the representative of the state, and its officers are regarded asagents, not of the city corporation, but of the state. Their powers and duties are derived from the law, and not from the city under which they hold their appointment." (Emphasis supplied.)
No subsequent decision of this court calls into question the former opinion. It seems to me not consistent to regard police officers as agents of the state in the discharge of governmental functions and to hold the municipality liable as an employer for losses incurred by such officers while acting as representatives of the state.
In 43 C.J., Municipal Corporations, § 1745, with a mass of decisions cited in support thereof, is the following:
"Futhermore, police officers can in no sense be regarded as servants or agents of the city. Their duties are of a public nature. Their appointment is devolved upon cities and towns by the legislature as a convenient mode of exercising a function of government; * * *".
Also in 37 Am. Jur., Municipal Corporations, § 224, it is stated:
"It is generally held that police officers of a municipality are not municipal officers, since their duties are of such a nature that they are agents of the state."
An extended review of cases bearing upon the question of liability for injuries or death resulting from services similar to those in which Gulbrandson was engaged is found in Eaton v. Bernalillo County, 46 N.W. 318, 128 P.2d 738, 142 A.L.R. 647, and in an annotation appearing in the volume last cited at page 657 thereof and prior annotations referred to therein. Many of these cases affirm the views of my colleagues in upholding an award against Haakon County. To impute to Gulbrandson, however, a dual role simply because he accompanied an officer who could assume to act either as deputy sheriff or town marshal, or both, in the Town of Midland, if and when the young robbers came along, and to impose upon the town the liability of an employer for the proposed mission are positions which, I believe, are not *Page 478 sustained by the facts or the law applicable thereto. I think the facts of this case support the views that Gulbrandson was called upon to respond to the duty imposed upon him as a citizen of the state; that he assumed to assist a deputy sheriff, whose duty it was to capture the fugitives, and who, as a town marshal, was authorized, because he was an officer in the latter capacity also, by SDC 45.1133 to perform such a mission as a representative of the state rather than for the town and that the services of Gulbrandson were rendered in the interests of the general public and as an agent of the state.
In adopting the broad view that it is the business of the towns and the duty of their marshals to pursue and capture felons fleeing about the state we thereby enlarge the powers conferred by law upon municipalities, we increase the liabilities of such subdivisions, we divide the responsibility the law places upon the sheriffs and their aids, we require the municipalities and their police officers to provide the means and equipment to meet the resulting burdens and we pass along to the taxpayers of the towns the risks and expenses to be incurred in this kind of law enforcement. I think the authorities do not support such a ruling.
Resorting to the definitions of "employer" and "employee" under the workmen's compensation law we find that an employer is one "using the service of another for pay". SDC 64.0102(1). There is no showing in the instant case that the Town of Midland used the services of Gulbrandson for pay. If it is presumed that Gulbrandson was legally employed in work for the town it may then be assumed that such employment carried therewith an implied promise to pay for his services. I find, however, nothing upon which to predicate an implied contract of employment, the first presumption which must be made.
It seems reasonably clear also that we cannot ignore the exception stated in SDC 64.0102(2)(a) relating to one not employed in the usual course of business of the employer. Such a one is therein declared not to be an employee within the meaning of the workmen's compensation law. No showing before us even slightly suggests that it is the usual *Page 479 course of business of the Town of Midland to engage in pursuing and capturing felons fleeing across the state and, of course, it is a reasonable assumption that there could be no such showing.
That certain peace officers specified in SDC 64.0102(2)(b), as amended by Ch. 313, S.L. 1943, are to be deemed employees within the meaning of that section carries therewith no implication of a legislative intent to place towns in the business of apprehending felons for offenses not committed within the jurisdiction of the municipality and thus affix to municipalities the character of employers in such an undertaking. Power to engage in such business is not by the laws of this state granted to municipalities. SDC 45.02.
In giving expression to my views it may not be regarded as altogether unfitting to add that the compensation to be awarded to the widow and minor children of Gulbrandson under the workmen's compensation law is in my opinion wholly inadequate and that, in the absence of other recourse for the losses suffered, and upon a finding that their husband and father met death in attempting to serve the interests of the people of this state, I believe that the state legislature should honor a claim in their behalf and allow to them such sum as by that body may be deemed reasonable and just.