Cook County v. Industrial Commission

• Decision Date: 30 November 1973
• Docket Number: No. 45651,45651
• Citation: 55 Ill.2d 540,304 N.E.2d 616
• Parties: The COUNTY OF COOK, Appellant, v. The INDUSTRIAL COMMISSION et al. (Joanne Watson, Appellee.)
• Court: Illinois Supreme Court

Page 616

304 N.E.2d 616

55 Ill.2d 540

The COUNTY OF COOK, Appellant, v. The INDUSTRIAL COMMISSION et al. (Joanne Watson, Appellee.)

No. 45651.

Supreme Court of Illinois.

Nov. 30, 1973.

Bernard Carey, State's Atty., Chicago (Sheldon Gardner and Michael J. Goldstein, Asst. State's Attys., of counsel), for appellant.

William J. Harte, Chicago (Kevin M. Forde, Harold L. Rifken, and Mann & Rifken, Chicago, of counsel), for appellee Joanne Watson.

UNDERWOOD, Chief Justice:

The claimant, Joanne Watson, filed an application for adjustment of claim to recover workmen's compensation benefits for severe and permanent injuries she sustained on February 3, 1969, while serving as a juvenile probation officer for the circuit court of Cook County. The arbitrator's decision finding her to be an employee of Cook County and awarding benefits was affirmed by the Industrial Commission and by the circuit court of Cook County on review. The County of Cook appeals.

There is no dispute as to the extent of the claimant's injuries or as to the fact that they arose out of and in the course of the performance of her duties as a probation officer. The sole issue on appeal is whether the claimant, for the purposes of workmen's compensation, was an 'employee' of Cook County and therefore entitled to workmen's compensation benefits or whether she was an 'official' of the County and therefore expressly excepted from coverage pursuant to the terms of section 1(b) of the Act. The pertinent provisions of that section in effect at the time she was injured provided that the term 'employee' means: 'Every person in the service of the State, including all persons in the service of the University of Illinois, county, city, town, township, incorporated village or school district, body politic, or municipal corporation therein, under appointment or contract of hire, express or implied, oral or written, * * * Except any official of the State or of any county, city, town, township, incorporated village, school district, body politic or municipal corporation therein * * *.' (Ill.Rev.Stat.1967, ch. 48, par. 138.1(b), emphasis supplied.) For the reasons hereafter stated, we are of the opinion that the claimant was an employee rather than an official of Cook County, and the judgment below therefore must be affirmed.

An 'official' within the meaning of section 1(b) of the Workmen's Compensation Act has been held to be one who was either recognized as a public official at common law or who holds a public 'office' created by the constitution or by law. The office of sheriff was created by the 1870 constitution (Ill.Const. (1870), art. X, sec. 8), and in County of Winnebago v. Industrial Com. (1968), 39 Ill.2d 260, 234 N.E.2d 781, a deputy sheriff was held to be an official of the county since at common law the sheriff and his deputy were considered as one and the same person. In a series of cases dealing with the question of whether a particular policeman was an official of the municipality he served, we held that unlike a deputy sheriff, a policeman was not generally recognized as holding a public office at common law and is not an 'official' in the absence of a statute or ordinance creating an office for the position in question. (Krawiec v. Industrial Com. (1939), 372 Ill. 560, 25 N.E.2d 27; Murphy v. Industrial Com. (1934), 355 Ill. 419, 189 N.E. 302; City of Metropolis v. Industrial Com. (1930), 339 Ill. 141, 171 N.E. 167; Johnson v. Industrial Com. (1927), 326 Ill. 553, 158 N.E. 141.) Only in those cases where a position was specifically designated as an 'office' have we found the individual occupying such a position to be an 'official' within the meaning of the Act. City of Danville v. Industrial Com. (1967), 38 Ill.2d 479, 231 N.E.2d 404; City of West Frankfort v. Industrial Com. (1950), 406 Ill. 452, 94 N.E.2d 413; City of Pekin v. Industrial Com. (1930), 341 Ill. 312, 173 N.E. 339.

The County of Cook suggests that the Juvenile Court Act creates the office of probation officer by providing for appointment of probation officers by the chief judge of the circuit. (Ill.Rev.Stat.1969, ch. 37, par. 706--5(1).) It is also argued that probation officers perform fixed public duties involving the exercise of discretion, that the position requires the taking of an oath of office and that probation officers are appointed to serve at the pleasure of the appointing power, all of which are characteristics of persons holding public office. The answer to the County's arguments in this regard is that notwithstanding the foregoing factors, a person is not an official unless he actually holds an office. A statute or ordinance does not create an office by merely referring to the position or providing for appointment thereto but must definitely state than an office has been created. (Krawiec v. Industrial Com. (1939), 372 Ill. 560, 25 N.E.2d 27; Murphy v. Industrial Com. (1934), 355 Ill. 419, 189 N.E. 302; City of Metropolis v. Industrial Com. (1930), 339 Ill. 141, 171 N.E. 167.) As we stated in Krawiec: 'We cannot agree that because decedent took an oath of office, made a bond, was called an officer, or because his tenure was called 'term of office' he thereby became an 'officer' when no 'office' was actually in existence.' (372 Ill. at 564, 25 N.E.2d at 29.) And in Johnson v. Industrial Com. (1927), 326 Ill. 553, 555, 158 N.E. 141, in answer to the contention that the claimant was an officer De facto because he was appointed by the village board as a police patrolman, took an official oath and performed the duties usually performed by one holding such an office we stated: 'A public office can exist only by force of law, and it would be a misapplication of terms to call one an officer who holds on office. While there is some authority to the contrary, the great weight of authority is to the effect that there can be no officer De jure or De facto where there is no office to fill.'

In further support of its contention that the claimant was an official rather than an employee, the County cites certain language in Shea v. Sweitzer (1918), 285 Ill. 465, 120 N.E. 760, to the effect that a probation officer holds an office in the county created by the legislature. At the outset we note that Shea did not deal with the question of whether a probation officer was an 'official' within the meaning of the Workmen's Compensation Act, but rather with the issue of whether the Officers...