Upon the rehearing the Industrial Commission adopted and reaffirmed its former findings. They now stand as the findings in this cause except as they are modified by the conclusion of the Commission that the deceased at the time of his injury and death was acting as jailer.
In the opinion of the hearing commissioner, ajiproved by the full commission, we find the following resume of the evidence, to wit: “The evidence discloses that on the day Lawrence Gowens was killed he was at the jail about his duties, and was called to come immediately to the home of one Bob Campbell, who lived just two doors from the jail, nearly in the back yard of the jail, and was advised that the said Campbell had shot his wife. The deceased went immediately to the home of said Bob Campbell where the wife of Campbell had been seriously wounded by a gunshot inflicted upon her by her husband, Bob Campbell, and he, Deputy Sheriff Gowens, the deceased, thereupon found Campbell armed with a shotgun and in the act of leaving his home, and when *109the deceased attempted to arrest the said Campbell and deter him from fleeing, he was fatally shot by Campbell, from which injuries he died within a short while thereafter.”
In the original award the commission held that deceased acted in a dual capacity and undertook to treat the positions held by him as one. It concluded that he acted either in the capacity of deputy sheriff,in charge of the jail or as jailer authorized to perform the duties of a deputy sheriff.
While these two offices, or positions, are usually held by one person for convenience and efficiency, they are separate and distinct. The Constitution provides for the office of sheriff. N. C. Const., Art. IV, sec. 24. There is no constitutional authority for' appointment of deputies sheriff. The right of the sheriff to appoint deputies is a common law right. “The deputy is an officer coeval in point of antiquity with the sheriff.” Lanier v. Greenville, 174 N. C., 311, 93 S. E., 850; Borders v. Cline, 212 N. C., 472, 193 S. E., 826. He 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. 57 C. J., 731, Sec. 4. The duties and authority of a deputy sheriff relate only to the ministerial duties imposed by law upon the sheriff. Borders v. Cline, supra.
Likewise, the position of jailer is one of common law origin and has existed from time immemorial. The statute, C. S., 3944, provides that: “The sheriff shall have the care and custody of the jail in his county; and shall be, or appoint, the keeper thereof.” The duties of the jailer are those prescribed by statute and such as were recognized at common law.
In Alamance County, until 1935, the sheriff had the right to appoint the jailer under the provisions of C. S., 3944, and of ch. 559, Public-Local Laws 1927. The Legislature, by ch. 201, Public-Local Laws 1935, repealed ch. 559, Public Laws 1927, and vested in the Board of Commissioners of Alamance County “full power and authority to name and designate the jailer and such other assistants as in the opinion of said board shall be necessary to properly maintain, operate and supervise the said jail and the inmates therein, and to prescribe the rules and regulations and general policies of such operation, maintenance and supervision of said jail, and to prescribe the duties of the said jailer and his assistants.”
After the enactment of eh. 201, Public-Local Laws 1935, the commissioners of Alamance County permitted the deceased, who had theretofore been appointed jailer by the sheriff, to continue his employment as such without any new appointment. They paid him his salary fixed by the commissioners and the turnkey fees allowed by law. The mere fact that they did not specifically reappoint him did not affect his posi*110tion as an employee of tbe county from and after tbe enactment of tbe recited statute.
We have been unable to find in tbe common law, or in tbe decisions or statutes of tbis State, any declaration or provision wbicb could be interpreted as vesting in tbe jailer any authority to serve process or make arrests. Whenever be undertook to do so, except perhaps in attempting to recapture a prisoner who bad escaped from bis custody, of necessity, be was acting in bis capacity as deputy sheriff, and not as jailer.
There is no such position as deputy sheriff-jailer known to tbe law. When tbe deceased undertook to act in given instances be was acting either as jailer by virtue of bis employment by tbe county, or as deputy sheriff under bis appointment by tbe sheriff.
As stated in tbe original findings of tbe commission, when tbe deceased went to tbe scene of tbe shooting and found Campbell, tbe man who bad shot bis wife, armed with a shotgun and in tbe act of leaving bis home, “Deputy Sheriff Gowens, tbe deceased,” attempted to arrest him. In so doing he was acting in bis capacity as a deputy sheriff. If be was undertaking to act in bis capacity as jailer, then bis act in attempting to arrest Campbell was entirely outside tbe scope of bis employment as jailer, and tbe injuries be received in attempting to make tbe arrest did not arise out of or in tbe course of bis employment by tbe county as such. No other conclusion is permissible.
That be was undertaking to act as deputy sheriff is not only supported by tbe specific findings of fact by tbe commission, but by other evidence in tbe record wbicb tends to show that a person nearby called to tbe wife of tbe deceased, informed her of tbe shooting, and inquired for the sheriff. In consequence of tbe information and tbe inquiry for tbe sheriff, bis deputy, tbe deceased, as it was bis duty to do as deputy sheriff, responded.
In tbe liability policy issued by tbe defendant tbe deceased was named as an employee of tbe county. He received an injury wbicb caused bis death. If tbe fact that, although tbe deceased was insured, be cannot recover, makes tbis appear as a bard case, we must bear in mind that tbe defendant Indemnity Company contracted to pay only in tbe event tbe defendant county was liable.
As there is no evidence in tbe record to support tbe conclusion that tbe deceased suffered an injury by accident arising out of and in tbe course of bis employment as jailer, tbe judgment below must be
Reversed.