Dept. Nat. Resources v. Indus. Acc. Com.

THE COURT.

The petitioner herein seeks to have reviewed and annulled a decision and award of the Industrial Accident Commission, by the terms of which the widow and minor son of one Frank Machado was granted an award by the Commission upon the occurrence of the sudden death of said Frank Machado, who was drowned while acting in the capacity of a volunteer deputy of the Fish and Game Commission of the state of California. The undisputed facts are these: Prior to October 15, 1927, Frank Machado applied to the Fish and Game Commission for appointment to the position of volunteer deputy fish and game warden in the region of Watsonville. The Fish and Game Commission *Page 15 approved his application, whereupon Machado subscribed to the oath of office and furnished the bond as required by the provisions of section 642 of the Political Code (as amended by Stats. 1927, p. 947), and also paid the fee of five dollars, required premium on said bond, and thereupon and on October 15, 1927, received his certificate of appointment as such volunteer deputy of said Commission. While serving in that capacity and on June 10, 1928, said Frank Machado was accidentally drowned through the capsizing of his motor-boat in Pinto Lake in Santa Cruz County and while he was actively engaged in performing the duties incident to his position. Thereafter and upon the application of his widow and minor son the Industrial Accident Commission, upon a showing of the foregoing facts and its finding thereon, made and entered its award in favor of said applicants, whereby the petitioner herein was ordered to pay the sum of $1150 as death benefits and burial expenses to the applicant, Margaret Machado. A petition for rehearing filed by the petitioner herein was thereafter denied by the Commission; whereupon the petitioner filed this application for a writ of review.

[1] The primary question of law presented upon this application is as to whether Frank Machado at the time of his death was such an employee of the Fish and Game Commission as to come within the provisions of the Workmen's Compensation Act relating to public officers and to the class of public officers, the widow, heirs and dependents of which are entitled under the terms of the act to receive an award upon the death of such employee while in the course of performing the services required by his official position. That Frank Machado was a public officer under the provisions of section 642 of the Political Code is conceded by the parties to this proceeding. He was what was known as a volunteer deputy fish and game warden, appointed as such under the provisions of the foregoing section of the Political Code, which permits the Fish and Game Commission to appoint deputies "with or without pay." That Frank Machado was of the latter class and from and after the time of his appointment up to the time of his death was engaged in the service of said Commission without pay would seem to be apparent from the facts attending his appointment and service, the only sum of money which he received from the Commission *Page 16 during the period of his service being the sum of five dollars, returned to him for the purpose of reimbursing him for the amount which he had been required to pay as premium upon his bond. It is true that under a rule of the Commission relating to volunteer deputies it is provided that since the Secretary of State requires the payment of a fee of five dollars upon the filing of the bond of a volunteer deputy "each volunteer deputy will be paid a salary of five dollars for the first month's service to compensate him for the bond premium. Thereafter his services will be volunteer and without compensation." It would seem, however, to be clear under the very terms of the foregoing rule, that at least from and after the first month of the decedent's service and the receipt by him of the sum of five dollars as provided for in said rule his services thenceforth and up to and including the time of his death were "volunteer and without pay" and that he must therefore be held to have been an appointed public officer, serving as such without pay. Section 8 [subd. A] of the Workmen's Compensation Act (Stats. 1917, p. 835), provides as follows: