Supreme Court of Florida. En BancMay 21, 1954
72 So. 2d 820 (Fla. 1954)

April 27, 1954. On Rehearing May 21, 1954.

Appeal from the Circuit Court for Gulf County, E. Clay Lewis, J.

Thomas Sale, Panama City, for appellant.

Charles M. Guyton, B.L. Solomon, Marianna, Cecil G. Costin, Jr., Port St. Joe, J. Lewis Hall, Tallahassee, for appellees.

This case raised the question of whether a deputy sheriff was an officer or an employee, or such an employee that he was covered by the terms of the Workmen's Compensation Act, F.S. Chapter 440, F.S.A.

The individual in question was a deputy sheriff, and an officer and not an employee, and this case is controlled by the opinion in the case of Blackburn v. Brorein, 70 So.2d 293. See also Leon County v. Sauls, 151 Fla. 171, 9 So.2d 461


THOMAS, SEBRING and DREW, JJ., concur.

ROBERTS, C.J., and TERRELL and BARNS, JJ., dissent.

On Rehearing Granted

MATHEWS, Justice.

Inadvertently the original opinion in this case used the word affirmed when the intention was to use the word "Reversed", which is shown by the text of the opinion.

The deceased was a deputy sheriff and claim was filed against the Sheriff and the County. The deputy commissioner found that the County was liable and the sheriff was not liable. This conclusion was correct, but it was based upon the erroneous theory that the deputy sheriff was an employee of the County and as such was covered by the Workmen's Compensation Act, F.S.A. § 440.01 et seq.

The County appealed to the Full Commission which made an order reversing the Deputy Commissioner and by finding and holding that the sheriff was liable and the County was not. On appeal to the Circuit Court the order of the Full Commission was affirmed. In the case of Blackburn v. Brorein, Fla., 70 So.2d 293, we held that a deputy sheriff was an officer and not an employee, and this case is controlled to that extent by that opinion.

The deceased deputy sheriff was not an employee but was an officer, not elected at the polls. The important question in this case is whether the deceased deputy sheriff would come under the purview of the Workmen's Compensation Act, not as an employee but as an officer, "not elected at the polls". Because the sheriff is elected at the polls and does not come under the terms of the Act is no reason why a deputy sheriff, who is an officer, not elected at the polls, should be excluded from the terms of the Act.

F.S. Section 440.02(1), F.S.A. provides as follows:

"The term `employment' includes employment by the state and all political subdivisions thereof and all public and quasi-public corporations therein and all private employments in which three or more employees are employed in the same business or establishment except officers elected at the polls, domestic servants in private homes; agricultural farm labor, professional athletes such as professional boxers and wrestlers, and baseball, football, basketball, hockey, polo, tennis, jai alai and similar players excluding also all referees, judges, umpires, trainers, masseurs and similar performers or attendants incident to professional exhibitions and performance of athletic games, sports and contests, turpentine labor, labor in processing gum-spirits of turpentine, crude gum, oleoresin and gum rosin." (Emphasis supplied.)

The above section is a masterpiece of ambiguity due to punctuation and grammatical construction. It appears to be an attempt to throw together in one sentence a definition of "employment" for the purpose of the Workmen's Compensation Act. Notwithstanding the ambiguity of the above section, a consideration of the history of the various Acts discloses a clear legislative intent and purpose to include in the Act all officers not elected at the polls "engaged in an employment under any appointment or contract of hire * * * express or implied, oral or written". A deputy sheriff, although an officer, is engaged under an "appointment".

Section 2 of Chapter 17481, Laws of 1935, in defining "employment" states, "The term `employment' includes employment by the State and all political subdivisions thereof, except officers elected at the polls". Then follows in logical sequence others who may be included, or excluded.

Chapter 18413, Laws of Florida 1937, enacted to correct certain errors and omissions of the Act of 1935 carried forward in the same identical words of Chapter 17481, the definition of the term employment as follows:

"When used in this Act —

"(1) The term `employment' includes employment by the State and all political subdivisions thereof, except officers elected at the polls, * * *."

The ambiguity first appeared in Section 1 of Chapter 20672, Laws of Florida 1941, when the attempt was made to put in one sentence all of those included in the term "employment" and exceptions and exclusions, although classes as set forth in the one sentence were misplaced.

By omitting from F.S. Section 440.02 (1), F.S.A., a misplaced classification, the first clause of the section would read:

"The term `employment' includes employment by the state and all political subdivisions thereof * * * except officers elected at the polls * * *."

which is the identical language used in the Acts of 1935 and 1937 hereinabove mentioned.

It is quite clear that it was the legislative intent to exclude from the Act all officers elected at the polls, and to include those not so elected. The entities upon which the statute places liability are the State and all its political subdivisions. The County is a political subdivision. The acts performed by the deputy sheriff are as a deputy sheriff of the County and not as an employee. See Holland v. Mayes, 155 Fla. 129, 19 So.2d 709.

The order of the Circuit Court affirming the Florida Industrial Commission, which reversed the order of the Deputy Commissioner, be and the same is hereby reversed, with directions to take further proceedings in accordance with this opinion.


THOMAS, J., dissents.

M.A. Hill, duly authorized and acting in the capacity of deputy sheriff of Gulf County, died from injuries received in an altercation while in the course of his employment as such deputy sheriff. Claim for compensation under the Florida Workmen's Compensation Act was duly filed against B.E. Parker, as Sheriff of Gulf County and against Gulf County, with the petition that the Florida Industrial Commission determine which of the parties named as employer was liable.

The Workmen's Compensation Act, Chapter 440 F.S.A. is applicable to "employment by the State and all political subdivisions thereof * * * except officers elected at the polls * * *". Section 440.02 F.S.A. The views are unanimous that the deputy sheriff comes within the scope of "employment" as above stated. The point for determination is whether the Sheriff or the County is liable. We hold the County liable and affirm the award of the Deputy Commissioner.

By F.S. Chapter 145, F.S.A. the Sheriff's compensation from fees is limited with provisions for the excess to be paid over to the county by the Sheriff. The selection of personnel of the Sheriff's office and duration of tenure is at the will of the Sheriff. The "net income" of the office is required to be paid over to the county, F.S. Section 145.05, F.S.A.

Every employer and every employee is presumed to have accepted the provisions of Chapter 440, see F.S. Section 440.03, F.S.A. Every employer is liable for and is required to secure to employees the payments of the compensation provided in Section 440.10 Every employer is required to secure the payment of compensation by insurance of a company or association authorized to do business in this state unless excused by the commission on grounds of his ability to pay an award of compensation, Section 440.37, and a failure to procure insurance when required is made a misdemeanor, Section 440.43.

The judgment appealed is against the appellant in his capacity as sheriff and not against him individually. If the appeal is to be affirmed it may involve his successor in office as an officer and agent of the county. The revenue of the office of sheriff in some counties may not be sufficient to pay the maximum compensation to the sheriff allowed by law. If the widow is to look solely to the office of sheriff it may mean that she will not receive the benefits of the Workmen's Compensation Act. These factors are to be taken into consideration in construing the Act in determining the intent of the law.

The true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging the common law) is that four things are to be discerned and considered: (1) What was the law before the passing of the act; (2) What was the mischief or defect for which the law had not provided; (3) What remedy the legislature has designated to cure the defect or mischief; and (4) the reason of the remedy. Heydon's case reported by Lord Coke (1584) 3 Co.Rep. 8: "And the office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief and pro privato commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico" (ib.).

A deputy sheriff is not a sheriff but an agent of the sheriff by reason of appointment by the sheriff; he is not an officer but an agent for one who is an officer; he is not an officer but is one vested with deputed authority of the office of sheriff.

The deputy of the officer, like the officer, occupies a dual status. The sheriff as to the county and state is a public servant and employee; a deputy likewise occupies a status of public servant and employee, yet both the sheriff and his deputies for other purposes are of the status of officers.

If the sheriff had procured insurance it would have been an act on behalf of the county as an operating expense of the office. To have done so would partake of the discharge of a duty owing by him to the county in the discharge of his duties as a county officer in carrying out the obligations imposed on the county by Chapter 440. The manner and means of carrying out the law's exactions have been left to the administration of county affairs since the law is silent in this respect.

It is my conclusion that the deputy sheriff in relation to the county and the Workmen's Compensation Act, Chapter 440, was a county employee and the judgment appealed from should be reversed.