Boshuizen v. Thompson & Taylor Co.

• Decision Date: 17 April 1935
• Docket Number: No. 22922.,22922.
• Citation: 360 Ill. 160,195 N.E. 625
• Court: Illinois Supreme Court
• Parties: BOSHUIZEN v. THOMPSON & TAYLOR CO.

360 Ill. 160

195 N.E. 625

BOSHUIZEN

v.THOMPSON & TAYLOR CO.

No. 22922.

Supreme Court of Illinois.

April 17, 1935.

Action by Gertrude Boshuizen against the Thompson & Taylor Company. Judgment for defendant, and plaintiff appeals.

Affirmed.Appeal from Superior Court, Cook County; John W. Preihs, judge.

James H. Coonce, of Chicago, for appellant.

Angerstein, Piggott & Angerstein and Ashcraft & Ashcraft, all of Chicago (Thomas C. Angerstein, Russell F. Locke, and Alan E. Ashcraft, Jr., of Chicago, of counsel), for appellee.

Samuel A. Ettelson, of Chicago, amicus curiae.

HERRICK, Justice.

Gertrude Boshuizen (hereinafter called the plaintiff) brought suit in the superior court of Cook county against the Thompson & Taylor Company (hereinafter called the defendant) to recover damages under the provisions of paragraph (a) of section 15 of the Occupational Diseases Act (Smith-Hurd Ann. St. c. 48, § 87(a) for violation of section 1 of that act (section 73).

The amended complaint in part charged that the defendant is a corporation engaged in Chicago in the business of jobber of teas, coffees, and spices and is a roaster and importer of teas, coffees, and spices, and as an incident to said business the defendant engaged in the business of canning and packing pepper and other spices and preparing the same for market; that for a period of eleven months immediately prior to May 23, 1934, the plaintiff was in the employ of the defendant for hire, working in the defendant's plant in the canning and packing of pepper and other spices; that she was required in her employment to fill orders by pouring ground pepper and other spices into cans and other containers, to work in dust created by agencies used in the manufacturing process, to come into direct contact with dust created by such agencies, and to be exposed to irritating and injurious dusts; that the work and process carried on by the defendant was likely and liable to produce illness and disease peculiar to the process and work so carried on, and subjected the employees of the defendant, including the plaintiff, to the danger of illness and disease incident to such work and processes to which employees are ordinarily not exposed in other lines of employment, to wit, illness and disease caused by irritating and injurious dusts. The defendant filed a motion to dismiss the plaintiff's amended complaint, alleging, among other grounds, that section 1 of the Occupational Diseases Act violates, with other constitutional provisions, article 3 and section 2 of article 2 of the State Constitution and the Fourteenth Amendment to the Federal Constitution. The trial court found section 1 of the act unconstitutional and entered judgment in favor of the defendant and against the plaintiff for costs. From that judgment the plaintiff has taken an appeal direct to this court.

Section 1 of the Occupational Diseases Act is as follows: ‘That every employer of labor in this State, engaged in carrying on any work or process which may produce any illness or disease peculiar to the work or process carried on, or which subjects the employees to the danger of illness or disease incident to such work or process, to which employees are not ordinarily exposed in other lines of employment, shall, for the protection of all employees engaged in such work or process, adopt and provide reasonable and approved devices, means or methods for the prevention of such industrial or occupational diseases as are incident to such work or process.’ Smith-Hurd Ann. St. c. 48, § 73, Cahill's Rev. St. 1933, c. 48, par. 185, p. 1375.

For the purpose of passing upon the construction, validity, or constitutionality of a statute the court may resort to public official documents, public records, both state and national, and may take judicial notice of and consider the history of the legislation and the surrounding facts and circumstances in connection therewith. Davis v. Farmers' Co-operative Equity Co., 262 U. S. 312, 43 S. Ct. 556, 67 L. Ed. 996; 23 Corpus Juris, §§ 2001, 2005. Applying this rule, we find that the Occupational Diseases Act is a specific statute passed in 1911 as a result of the report and recommendation of the Occupational Diseases Commission appointed by the Governor pursuant to a joint resolution adopted by both branches of the General Assembly in 1907 (Laws 1907, p. 586), and continued by a like resolution in 1909 (Laws 1909, p. 488). This type of legislation was a complete stranger to the common law, and section 1 under consideration here has no common-law origin or history. First Nat. Bank v. Wedron Silica Co., 351 Ill. 560, 184 N. E. 897;Arquin v. Industrial Comm., 349 Ill. 220, 181 N. E. 613;Keeran v. Peoria, Bloomington & Champaign Traction Co., 277 Ill. 413, 115 N. E. 636;Adams v. Acme White Lead & Colors Works, 182 Mich. 157, 148 N. W. 485;Pennsylvania Pulverizing Co. v. Butler (C. C. A.) 61 F.(2d) 311. The section has no generally accepted body of precedents, no established standards of conduct, and no common knowledge or understanding on which it is bottomed. It therefore follows that the constitutionality of section 1 must be decided from an examination of the terms of that section alone. In determining the validity of section 1 we give due weight to the rule that where two divergent, reasonable meanings may be given a statute, the interpretation which supports the validity, rather than the one which strikes it down, is to be approved (Hunt v. Rosenbaum Grain Corp., 355 Ill. 504, 189 N. E. 907;People v. Anderson, 355 Ill. 289,187 N. E. 338;People v. Dopp, 343 Ill. 521, 175 N. E. 812), and that the burden of showing the unconstitutionality of the statute rests upon the party assailing its validity. Reif v. Barrett, 355 Ill. 104, 188 N. E. 889.

Section 1 does not include employees engaged in extrahazardous occupations especially dangerous to the health of the employee, but only those employees engaged in nonhazardous industries. First Nat. Bank v. Wedron Silica Co., supra; Kelley v. St. Louis Smelting & Refining Co., 307 Ill. 367, 138 N. E. 618.

Several cases involving different phases of the occupational diseases act have been here for review. The constitutional validity of section 2 was upheld in Burns v. Industrial Comm., 356 Ill. 602, 191 N. E. 225; the validity of the amendment of 1923 to section 15 was upheld in First Nat. Bank v. Wedron Silica Co., supra; in Zurich General Accident & Liability Ins. Co. v. Industrial Comm., 331 Ill. 576, 163 N. E. 466, section 15 was held not to violate section 13 of article 4 of the Constitution; in Labanoski v. Hoyt Metal Co., 292 Ill. 218, 126 N. E. 548, section 15 of the act was held not to offend the Fourteenth Amendment to the Federal Constitution nor section 13 of article 4 of the Illinois Constitution; the validity of the amendment to section 15 (Laws of 1921, p. 444), was before the federal court in Hoyt Metal Co. v. Atwood (C. C. A.) 289 F. 453, and it was there held that the amendment operated prospectively, only, and would not defeat a cause of action accrued before the amendment became effective; if given a retroactive operation the amendment would be unconstitutional as impairing the obligation of contract and as invalid interference with vested rights. There has never been a judicial pronouncement here upon the constitutionality of section 1.

It is contended by the plaintiff that section 1 has been the law for many years and its provisions enforced by judgments of this court; that thereby the court has recognized its validity; that the rule is, where a statute has been recognized as valid, indirectly or directly, in numerous decisions, then the maxim of stare decisis should be applied and the statute be declared constitutional. There is merit in this position, but the rule cited is not inflexible. While section 1 has been in force over twenty years, yet it is only within recent years that cases based upon its provisions have reached this court, and there is not a long line of decisions of this court upon the subject. In People v. Bruner, 343 Ill. 146, 175 N. E. 400, decided in 1931, there was presented to this court for decision the issue whether the statute originally enacted in 1827, providing that juries in criminal cases should be the judges of the law as well as of the facts, offended the provisions of article 3 and section 5 of article 2 of the State Constitution. That statute had theretofore been before this court in different and varying forms in a very large number of cases, yet the decision in the Bruner Case held the act unconstitutional. It was said in the Bruner Case that though a statute had been interpreted and in force over a considerable period, yet where its constitutionality on the grounds charged has never been determined the statute is subject to attack on constitutional grounds. The statute granting to a master in chancery the power to grant writs of injunction when no judge authorized to grant such writs was present in the county was in 1923 declared unconstitutional in Bottom v. City of Edwardsville, 308 Ill. 68, 139 N. E. 5. That statute had been in force since 1845 and the power purported to be conferred by it had been frequently and commonly exercised. The rule deducible from the authorities is that even though a statute may be venerable, its old age does not render it immune against constitutional attacks.

Numerous cases are cited by the plaintiff wherein statutes speaking in general terms have been upheld. An examination of those cases will disclose that the employed words in those acts had acquired an intelligible and generally understood meaning at common law or had a definite, special, trade, or technical significance. The distinction between the two classes of statutes is aptly drawn in People v. Mancuso, 255 N. Y. 463, 175 N. E. 177, 76 A. L. R. 514. It is there pointed out that there are two types of legislative acts: (1) Those which prescribe a duty in terms sufficiently definite to...