Montana Attorney General Opinion 15-620

Opinion No. 620 Workman's Compensation Act-Mon- tana Relief Commission-F. E. R. A. -Agency of the State-Employees. HELD: 1. The Montana Relief Com- mission is an agency of t.he State of Montana within the meaning of the Workman's Compensation Act and, under the facts submitted. the l<~. E. R. A. is not an agency of the State of Montana. 2. Persons at work on Federal Re- lief projects are not "employees" with- in the meaning of the 'Vorkman's Com- pensation Act for the reason that the primary purpose is relief and the cus- tomary relationship of employer and employee does not exist. 3. It appears that authority of the Montana Relief Commission to carry in- dustrial accident insurance on its own employees is implied in the authority to furnish relief under the very general and extensive powers granted to the Montana Relief Commission and the F.E.R.A. October 5, 1934. You ask for an opinion upon certain questions relative to 'Vorkman's Com- pensation on relief projects in Mon- tana. Your first. question is as fol- lows: "Is the Montana Relief Commission a department of the State Govern- ment, so as to require the said Mon- tana Relief Commission to carry In- dustrial Accident Insurance on its employees," Sections 2838 and 2839, R. C. M., 1921, recognize the general prinCiple that. is not necessary for all employers of labor within the State of Montana to come within the terms of the Work- man's Compensation Act. Section 2840, R. C. M., 1921, provides: "Where a pub- lic corporation is the employer, or any contractor engaged in the performance of contract work for. such public cor- poration, the terms, conditions, and pro- visions of compensation plan No. 3 shall be exclusive, compu1sory, and obligatory upon both emplo~'er and employee." A public corporation is de- fined as follows: "'Public corporation' means the state, or any counly, muni- cipal corporation, school district, cit~-, city under commission form of govel"ll- ment or speCial character, town, or village." (Section 2886, R. C. ~L, 1921.) It has been held by the Supreme Court of this state that the National Forest Service is not a public corpora- tion within the meaning of the Work- man's Compensation Act. (Loney '-. Industrial Accident Board, 87 Mont. 191.) It is provided hy Section 3 of Chap- ter 20 of the Laws of the Extra- ordinary Session of the Twenty-Thir!l LegislatiYe Assembly as follows: "The ~iontana Relief Commission is hereby authorized and it shall be the duty o'f that Commission to administer the fund herein created, and to administer the Emergency Relief as a state institu- tion in such manner as to effectuate the purposes of this Act as herein set forth." From this section it appears that the ~iontana Relief Commission is an agency of the State of Montana for the purpose of administering re- lief, a t least insofar as the expenditure of funds belonging to the State of Mon- tana. I do not exactly understand the re- lationship of the F. E. R. A. to the Mon- tana Relief Commission. It may well he that such agency, in the distribution of funds received from the Federal Government, is not a State agency. If we assume tha t the F. E. R. A. is an agency of the United States engaged in carrying out a duty or obligation of the Federal Go,-ernment we encounter the principle that the State may not interfere with the Federal Government in the performance of its duties as au- thorized by the Constitution of the United States. (Johnson v. Maryland, 254 U. S. 51, citing cases.) In answer to your first question, it is my opinion that the Montana Relief Commission is an agency of the Statr of Montana and that, so far as I am advised of the facts, the l<~. E. R. A. is not an agency of the State of Montana. The question of whether or not work- men who are receiving relief are to be considered as "employees" is reserved OPIXIOXS OF THE ATTORNEY GENERAL 427 and discussed in connection with the n nswer to your second question. 'rhe second question submitted is as follows: "Under the rules and regulations of the ~Iontana Relief Commission amI }j'ederal Emergency Relief Administra- tion, those persons who are on relief rolls, the same being without means to obtain subsistence for themselves and their dependents, may, if they are physically able, work out relief that is allotted to them. }j'or this work done they receh'e eash and with this eash buy the necessities for their sub- sistence. Do you eonsider these relief clien t8, or benefiCiaries, employees, in fact, of the Montana Relief Commis- sion when they are in such a manner working out their relief?" A very difficult question is presented. On the one hand the intent of the \Vorkman's Compensation Act, and its spirit, appears to be that workmen shall he provided with compensation in sur- anee when engaged in public work. On the other hand we have the point of "iew that relief in the way of funds is heing furniShed to the needy and that work on the part of the applicant, where possible, is required as an inci- dent to the relief furnished. A numher of eases upon this point have been de- dded recently by the Supreme Courts of various states and the conelusion reaehed in almost e"ery ease is that eompensation, as required by our com- pensation .plan No.3, is not generally rpquired. In these cases the principle is adopted that the primary purpose is relief and that the customary relation- ship of an employer and employee does not exist. Following is a list of t.he cases illustrating this point: Basham v. County Court, 171 S. E. 81)3, (W. Va.) ; In Re Moore, 187 N. E. 211), 222, (Ind.); UcBurney Y. Indus- trial Accident Commission of Calif., 30 Pac. (2d) 414, (CaL); Hico v. Indus- trial ACCident Commission, 30 Pac. (2d) 584, (Cal.) ; Jackson v. North Carolina Emcrgency Relief Administration, 173 S. E. 580, (N. 0.) ; Bell ,'. City of Ra- leigh, 17::1 S. E. 581, (No C.); Village of 'Vest Milwaukee v. Industrial Com- miSSion, 255 l\". W. 728, (Wisc.); Vai- vida Y.' City of Grand Rapitls, 88 A. L. R. 707 (i\1ich.); Thurston County Chapter, etc. v. Department of Labor, etc., 7 Pac. (2d) 577, (Wn.). The case which appears to be closest in point to the question submitted is that of State ex reI. State Board of Charities and Public Welfare v. Ne- "ada Industrial Commission, 34 Pac. (2d) 408, decided by the Supreme Court of the State of Nevada on July 6, 1934. ]n the State of Nevada the code pro- vision (Nevada Compiled Laws, Section 2680, subsection 1A) contains a pro- vision very similar to our code pro- \'isions in Sections 2840 and 2886 defin- ing a public corporation and making insurance compulsory in relation to public corporations. The action was an original proceeding in mandamus be- fore the Supreme Court of Xevada to determine whether or not a legal duty rested upon the State and the political subdh'isions thereof to provide for the payment of premiums to the State In- surance Fund for the payment of any and all personal injuries by accidents sustained by persons while at work upon the Federal relief projects deter- mined upon by the State Emergency Relief Commission with the approval of the Federal Emergency Relief Ad- ministrator. It was held that: "The state, counties, school districts, and the municipal corporations thereof, where federal emergency relief work is carried on, are not employers within the meaning of the term 'employer;;' as used and defined in the Nevada In- dustrial Insurance Act, and the persons placed at work upon such projects are not employees within the meaning of the term 'employees' as defined and used in the Nevada Industrial Insur- ance Act." The opinion further states: "The money paid them is not paid as a contractual remuneration for their work, but is paid for the relief of themsel yes and their families. Conse- quently, whatever else should he done for the relief of unemployment, it is manifest that the terms, conditions, and provisions of the Nevada Indus- trial Insurance Act cannot be con- \'erted into something in the nature of an unemployment insurance benefit for the relief of the unemployed of this state." I cannot state definitely that the same conclusion would be the conclu- sion reached by the Supreme Court of the ::;tate of Montana, but can assure you that the weight of authority ac- cords with the conclusion reaChed by 428 OPINIOlXS OF THE ATTORlXEY GENERAL the Supreme Court of Nevada as cited above. The third question submitted is as follows: "Can the Montana Relief Commis- sion carry its own Industrial Accident Insurance on its own employees?"' Some measure of protection cer- taillly should be given to those who work at relief labor. The same prin- ciples which require protection for la- borers regularly employed requires the protection of those engaged in relief labor. The funds to be administered are .public funds and are to be ex- pended for the purpose of furnishing relief necessities by unemployment. It would certainly seem that from the funds so appropriated funds might be set aside and administered to take care of those injured in such relief labor. Such authority appears to me to be im- plied in the authority to furnish relief under the very general and extensive powers granted to the "fontana Helief Commission and the l!'ederal Emer- gency Helief Administration.