167 P.2d 113 | Ariz. | 1946
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *174 An alternative writ was issued directed to the respondents in the caption, supra, directing them to report the salaries, wages, commissions, or fees paid to contract county doctors, and to pay the required premiums thereon or show cause why they had not done so.
Subsequent to the 6th day of August, 1945, the board instructed its clerk not to report to the Industrial Commission salaries of doctors under contract. The commission demanded that the respondents comply with the provisions of Section 56-935 (Compensation Law) and Section 56-1227 (Occupational Disease Disability Law), A.C.A. 1939, as amended and supplemented. This request was denied. Respondents *175 justified their refusal to pay insurance premiums to petitioner on the salaries of physician-surgeons upon the ground that such physician-surgeons are not employees, but independent contractors whose professional services are not supervised or controlled by respondents in any manner or to any extent whatsoever.
The question for this court to decide is whether or not under the facts of this case insurance premiums are due petitioner upon the salaries of such doctors. The contracts show that the doctors are under contract with respondent county to render medical aid or when necessary perform surgery for the indigent sick within the county. It is made to appear that in the performance of their duties under the contract the doctors are not supervised or controlled by the respondents in the ministration of medicines, treatment and surgery. The respondent supervisors are lay individuals and do not pretend to have any knowledge or skill in medicine or surgery. These doctors in the performance of their duties bring not only their best skill but the right to exercise it in accordance with their own best judgment without interference from any person; in fact, such is their duty because of their special skill, ability and technical training. They use their own judgment in the treatment of patients whose welfare is entrusted to them. Some of the contracts required the doctor at his own expense to furnish "ordinary medicine," and specified that if medicines "other than ordinary drugs and medicines are used they shall be ordered directly from a drug store and paid for by the board upon itemized demand." It was contemplated that the doctors would furnish their own offices, office help, and nurses. The professional services were to be rendered patients at the doctors' offices or at the homes of patients when the exigencies of the situation required the attendance of the doctor.
The powers and duties of respondent board of supervisors at all the times material hereto were the following:
"Sec.
"Sec.
"Sec. 17-347. Contractor to give bond — Contract. — The person to whom such contract may be awarded shall give to such county a bond of not less than five thousand dollars ($5,000), for the faithful performance of such contract, to be approved by the board. The contract shall specify distinctly the amount proposed to be charged for each day's attendance upon each indigent sick person, including medical attendance, medicine, food, lodging, clothing and supplies. (R.S. 1901, §§ 1030, 1031; 1913, §§ 2483, 2484; cons. rev. R.C. 1928, § 812.)"
"Sec. 17-348. Indigent only to be cared for — Penalty — Pay patients. — No person other than an indigent shall receive public aid, or be admitted into any home or hospital the expenses of which are paid by the county, and any contractor or person having charge of any such home or hospital who knowingly receives into the same, for medical attention or subsistence, any person other than an indigent, shall be guilty of a misdemeanor. The board may admit into such hospital for hospital care, medical or surgical attention, any person other than an indigent who will pay, in part or in whole, for such hospital care, medical and surgical attention, under the rules and regulations prescribed by the board. (R.S. 1901, § 1032; 1913, § 2485; Laws 1917, ch. 14, § 1, p. 12; rev. R.C. 928, § 813.)"
"Sec.
Under and by virtue of the foregoing granted powers the respondents entered into certain agreements with physicians located in Holbrook, Snoflake, and Winslow. The following contract is typical of these agreements.
"Agreement
This Agreement entered into the 1st day of May, 1945, between the Board of Supervisors of Navajo County, Arizona, hereinafter known as the Board, and Bernard S. Heywood, a duly licensed physician and surgeon, hereinafter known as the Doctor;
Witnesseth:
That the compensation hereinafter set forth, the said Doctor agrees to perform the following services for Navajo County, Arizona, from the date hereof to June 30th, 1945,
(a) To do and perform all acts required of a County Superintendent of Health without compensation; *177
(b) To act as County Physician;
(c) To perform all surgery for resident indigents of Supervisorial Districts No. 1 and No. 3 of Navajo County, for whom said Board is, by law, authorized to render such services;
(d) To render professional services for not to exceed twelve indigent obstetrical cases during the period of this agreement within the hospital at Holbrook, Arizona, operated by the Town of Holbrook;
In consideration of the satisfactory rendition of the services aforesaid, the board will pay monthly to the Doctor, upon demand, the sum of Three Hundred and No/100 ($300.00) Dollars."
By Section 56-935, A.C.A. 1939, "The state and each county, city, town, municipal corporation or school district which is liable to its employees for compensation must insure in the state compensation fund. * * *" Section 59-936 provides that employees covered by insurance in the state fund are entitled to compensation. Section 56-941 provides that the state and political subdivisions are liable to the fund for accident benefit premiums. Section 56-929, as amended (Chapter 65, Laws 1943), enumerates the employees covered and, in part, reads as follows:
"Sec. 56-929. Employee, workman, and operative. — (a). In this article, unless the context otherwise requires, the terms `employee,' `workman,' and `operative' mean: 1. every person in the service of the state, or of a county, city, town, municipal corporation, or school district, including regular members of lawfully constituted police and fire departments of cities and towns, under appointment or contract of hire, except the elective officials and except officials receiving more than three thousand six hundred dollars ($3,600) per year salary, * * *."
Under the specific provisions of Section 56-928, as amended by Chapter 33, Laws 1945, an independent contractor is classified as an employer. We quote: "(c) A person engaged in work for another, and who while so engaged is independent of the employer in the execution of the work, not subject to the rule or control of the person for whom the work is done, but is engaged only in the performance of a definite job, or piece of work, and subordinate to the employer only in effecting a result in accordance with the employer's design, is an independent contractor, and an employer within the meaning of this section."
This court has on numerous occasions considered this section and under various fact situations defined who are independent contractors. A typical statement of the rule is contained in United States Fidelity Guaranty Co. v. Industrial Commission,
Other informative cases are Grabe v. Industrial Commission,
The position of the commission is succinctly set forth in two of the propositions of law submitted by it. They are:
1. The board of supervisors of Navajo County in performance of the duties under Sections
2. The exercise of any part of the police power of the state may not be alienated or delegated to an "independent contractor." The power, right and duty of elected public officers to perform the duties prescribed by Sections
Under common law and statutes which governed the territory of Arizona, and under the provisions of the constitution and statutes of the State of Arizona prior to 1925, persons performing services for the State of Arizona or its subdivisions when injured while in the performance of a governmental
function had no cause of action against the state, State v. Sharp,
With these cases in mind, the legislature in 1925 submitted to the electors at a special election a proposed amendment to Article XVIII, Section 8 of the Constitution, which proposed to authorize the enactment of a Workmen's Compensation Law adopted by the legislature contemporaneously with the proposed constitutional amendment. *179
Under the provisions of the constitution as amended, and the Workmen's Compensation Law, which was enacted pursuant to the amended provision of the Constitution, the state, its counties and its municipalities became "employers" within the provisions of the Workmen's Compensation Law. The applicable section is: "Sec. 56-928. Employers subject to law. (a) Employers subject to the provisions of this article are: 1. the state, 2. each county, city, town, municipal corporation, and school district, * * *."
It is mandatory that the named employees, including contractors who are subject to supervision and control, except elected officials and officers who receive in excess of $3,600 per annum, be insured. Industrial Commission v. Arizona State Highway Commission,
In the case of Ocean Accident Guarantee Corp. v. Industrial Comm. of Arizona,
Under the provisions of Sections
This court in Coleman v. Lee,
It is therefore apparent that the duty of caring for the indigent sick is a governmental function and is an exercise of the police power, and such powers and duties are vested in the board of supervisors. *180 It is a fundamental principle of constitutional law that the police power is inalienable and cannot be surrendered or delegated, by affirmative action, by inaction, by contract, or otherwise. 11 Am. Jur., Const. Law, § 254; 37 Am.Jur., Municipal Corporations, § 276; 44 C.J. 73, § 2129. This jurisdiction vested in the board of supervisors is alienable, and the board may not delegate it to any person other than a duly constituted deputy, agent, contractor, employee, workman, or operative, over whom it must as a matter of law retain supervision or control within the meaning of Sections 56-928 and 56-929.
Under the provisions of Sections
Respondents urge that the employment of professional men and women such as doctors, lawyers, nurses, and other technicians who by reason of their skill and ability are particularly fitted to do the work required of them does not create the relationship of master and servant or employer and employee. Our attention has been directed to the cases of Associated Indemnity Corp. v. Industrial Accident Commission,
"Supervision or control" as used in Section 56-928 of the Compensation *181 Law does not mean that the board of supervisors or the employer may direct the thinking, or direct the technical manner of performing the work or services of a doctor, lawyer, engineer, etc. This, however, does not change his "status" under the Workmen's Compensation Law. The employer, having the right to direct the time and the place in which the services are to be rendered, the persons to or for whom the services are to be rendered, and the degree and amount of said services, exercises supervision and control over the person performing them as it is duly bound to do.
The board of supervisors must operate within its budget established for such purposes and must of necessity supervise and control the nature, the degree, and the amount of work to be performed by the several doctors operating under the aforementioned contracts; and supervise the work of county officers or employees. Section
We, therefore conclude that the doctors employed under the contracts in question are employees and not independent contractors within the meaning of Section 56-928.
The alternative writ should be made peremptory, and it is so ordered.
STANFORD, C.J., and MORGAN, J., concurring.