The opinion
Trammell,
dissenting: In my opinion, the facts in this case distinguish it from the Metcalf & Eddy case. In that case, the court said:
The record does not reveal to what extent, if at all, their services were subject to the direction or control of the public boards or officers engaging them. In each instance the performance of their contract involved the use of judgment and discretion on their part and they were required to use their best professional skill to bring about the desired result. This permitted to them liberty *1126 oí action which excludes the idea that control or right of control by the employer which characterizes the relation of employer and employee and differentiates the employee or servant from the independent contractor.
In this case the control or right of control by the employer which characterizes the relation of employer and employee is clearly shown. The very facts which were absent in the Metcalf & Eddy case are present here.
The petitioner here was not engaged for the purpose of bringing about a particular result. He was employed in order that the wishes of the board employing him might be carried out. He was at all times under the complete control and direction of the public board or officers.
If his contract of employment had not been changed in 1923 and he had remained performing the same duties and functions, but had simply received his salary as originally provided, it seems that no question could arise in this case but that he was an employee. I do not think that the mere form or method by which a person is paid should be determinative of whether he was an employee. The fact 'that he was during the taxable years here involved paid on a percentage basis seems to me not to be material. He devoted his entire time and attention to the work and it seems to me that he was only a means or instrumentality through which the State board could really carry out its function.
The original contract of employment provided that the petitioner would receive his compensation in the way of salary, payable to him, and in addition thereto that his office expenses should be paid. This seems not to be changed by any subsequent agreement except as to the method and amount of his compensation. I see nothing in the subsequent arrangement which provided that the petitioner would bear the expenses of his office and his employees. It seems to me that the modification of the method by which he was to be paid did not cover that feature. The State board undoubtedly paid the petitioner’s office expenses under the previous arrangement, and under the subsequent arrangement the only change was the rate and amount of his compensation. The percentage on which the petitioner was paid was clearly for the purpose of paying the employees by the State. No other conclusion, it seems to me, can be drawn. The statement in the prevailing opinion that the petitioner was to bring about the desired results through his methods and instrumentalities is, in my opinion, clearly contrary to the evidence and also to the findings of fact, yet the prevailing opinion says: “ This we think stamps the petitioner as an independent contractor with the State of North Carolina rather than as an emploj^ee.” I do not think that the case of Frank H. Mesce, 64 Ct. Cls. 481, has any bearing upon this case, and I think that this case is clearly distinguishable from the other cases cited.