Dragovich v. Iroquois Iron Co.

• Citation: 109 N.E. 999,269 Ill. 478
• Decision Date: 27 October 1915
• Docket Number: No. 10071.,10071.
• Parties: DRAGOVICH v. IROQUOIS IRON CO.
• Court: Supreme Court of Illinois

269 Ill. 478

109 N.E. 999

DRAGOVICH

v.IROQUOIS IRON CO.

No. 10071.

Supreme Court of Illinois.

Oct. 27, 1915.

Appeal from Circuit Court, Cook County; Charles H. Bowles, Judge.

Proceeding by Peter Dragovich, as administrator, under the Workmen's Compensation Act to obtain compensation for the death of Frank M. Markusic, opposed by the Iroquois Iron Company, employer. Compensation was awarded, and, on appeal to the circuit court, judgment was rendered for petitioner in the sum of $3,500, and the employer appeals. Affirmed.

Dunn and Cooke, JJ., dissenting.

Albert G. Miller, of Chicago, for appellant.

Frank A. Rockhold and Charles C. Spencer, both of Chicago, for appellee.

CARTER, J.

This was a proceeding to recover compensation, under the Workmen's Compensation Act of 1911, for the death of Frank M. Markusic. The case was tried in the circuit court of Cook county on an appeal from a report of award of the board of arbitrators, rendered in accordance with section 10 of said Compensation Act. On the trial in the circuit court a judgment for $3,500 was entered in favor of appellee, payable in installments, in accordance with the terms of the statute. From that judgment this appeal was taken direct to this court, on the ground that said Workmen's Compensation Act is unconstitutional.

On a hearing in the circuit court the journals of the House and Senate were introduced, and it is argued from them that it does not appear that 23 amendments to said bill were printed before the final passage of the bill. The Senate Journal shows that the bill was introduced, amended, and passed. The House Journal shows that the bill was received from the Senate, and, having been printed and read the first time, was referred to a committee; that the committee afterward reported the bill back with 23 amendments, with a recommendation that the amendments be adopted and that the bill as amended do pass. Thereafter the bill was ordered to a second reading, and upon such reading the committee's amendments were offered and adopted. The journal proceeds:

‘There being no further amendments, the foregoing amendments, numbered 1 to 23, inclusive, were ordered printed and engrossed.’

The bill was then ordered to a third reading. The committed on enrolled and engrossed bills reported that the house amendments had been correctly engrossed, and later the record shows that the bill was taken up, read at large a third time, and passed by a vote of 98 yeas to 2 nays. The Senate Journal shows that two days later the bill was taken up in the Senate, and the question then being, ‘Shall the Senate concur with the House of Representatives in the adoption of the following amendments (1 to 23) to the bill?’ and the yeas and nays being taken, it was decided in the affirmative by a vote of 35 yeas, nays 1.

Counsel for appellant argues that under the rulings of this court in Neiberger v. McCullough, 253 Ill. 312, 97 N. E. 660, and McAuliffe v. O'Connell, 258 Ill. 186, 101 N. E. 419, this law, on account of the minutes of the journal, must be held unconstitutional; that it is necessary, in order to hold it constitutional, to find in the journal affirmative evidence that the amendments were actually printed before the final vote. The precise question raised in this case was not considered or passed upon in either of the cases just cited. In this case the journal shows that the amendments were ordered printed, while in those cases there was no such entry in the journal. In McAuliffe v. O'Connell, supra, 258 Ill. 189, 101 N. E. 420, we stated:

‘The journals of both houses fail to show that the amendments proposed by said conference committee were ever printed, or ordered to be printed, in either house’-thereby strongly intimating that if the amendments had been ordered printed, the act under consideration in that case might have been held constitutional. In the Neiberger Case, supra, nothing was said to the contrary. We have repeatedly held that where the constitutionality of a law is involved every presumption must be indulged and every reasonable doubt resolved in favor of its validity. It is a familiar doctrine of this court that laws will not be declared unconstitutional unless it is clearly proved, beyond a reasonable doubt, that the requirements of the organic law have not been observed. People v. Brady, 268 Ill. 192, 108 N. E. 1009, and cases cited; People v. Henning Co., 260 Ill. 554, 103 N. E. 530,49 L. R. A. (N. S.) 1206;Home Ins. Co. v. Swigert, 104 Ill. 653. This same rule applies to the constitutionality of a law when any defect is claimed in its passage. In Larrison v. Peoria, Atlanta & Decatur Railroad Co., 77 Ill. 11, it was held that where a law was signed by the presiding officers of both houses and approved by the Governor, it would be presumed to have been passed in accordance with all the constitutional requirements and to be valid until the presumption was overcome by clear and convincing proof.

The Constitution does not require that the legislative journal shall show affirmatively that the bill or its amendments have been printed. In discussing this question in Chicago Telephone Co. v. Northwestern Telephone Co., 199 Ill. 324, 342, 65 N. E. 329, 334, we said:

‘Where the Constitution does not require a fact to be recorded upon the journal, and it can be inferred from the recital in the journal that such fact existed, or such step was taken, then the presumptionwill be indulged that such fact did exist, or such step was taken, in order to sustain the validity of the law, where the contrary does not appear from the journal itself. * * * So, here, inasmuch as the record recites that the ordinance was laid over under the rules, and inasmuch as the rules require that it shall be presented and read before it lies over for one week, the presumption will be indulged that the rule was complied with, not only in regard to the presentation of the ordinance, but also in regard to the reading of it.’

This court had this rule in mind in Neiberger v. McCullough, supra, for in that case, in discussing this very question, we referred to the discussion in the opinion just quoted from and approved this rule as there laid down. The facts here bring this case squarely within that rule. The journal shows that the amendments were ordered printed. Nothing appears on the journal to indicate that the order was not complied with, and it must be presumed, under this rule, that these amendments were actually printed before the final passage of the bill. Not only did the journal show that these amendments were ordered printed, but the rules of both the Senate and the House required that all amendments should be printed before being passed. By an unbroken line of decisions this court has held that the presumption must be that a public officer has pursued the course pointed out by law, and has performed his duty, until the contrary is shown. Ballance v. Underhill, 3 Scam. 453;Grubb v. Crane, 4 Scam. 153;People v. Newberry, 87 Ill. 41;Long v. Linn, 71 Ill. 152;People v. Walsh, 96 Ill. 232, 36 Am. Rep. 135;Hogue v. Corbit, 156 Ill. 540, 41 N. E. 219,47 Am. St. Rep. 232;State v. Illinois Central Railroad Co., 246 Ill. 188, 92 N. E. 814;People v. Cincinnati, Lafayette & Chicago Railway Co., 256 Ill. 280, 100 N. E. 208. To hold on this record that this law is unconstitutional would be extending the doctrine of the Neiberger Case further than it has been extended in that or any other case in this court. Indeed, under the rules laid down by this court in the cases relied on by appellant, as the journal shows that the amendments were ordered printed, it will be presumed, as nothing is shown to the contrary, that they were printed. The law must therefore be held constitutional.

Counsel for appellant further argues that, even though the law be held constitutional, appellee could not recover under the Compensation Act, as the record does not show that he was injured while in the course of his employment by the appellant. The evidence shows that the deceased, Frank M. Markusic, had been in the employ of appellant, the Iroquois Iron Company, for a number of years, doing different kinds of work about appellant's plant, sometimes in the buildings and sometimes on the dock. On December 24, 1912, he was working in the shop of appellant, assisting in making some safety appliances. Max Gornick, with two or three other men, was working in the same shop, repairing steam pipes under the floor, and for this purpose some of the steel plates forming the floor had been taken up, thereby leaving an opening or hole, in which was accumulated a quantity of hot water, from which were escaping vapor and steam, making it impossible for a person approaching the opening from where Markusic was working, to see the hole. Gornick, while engaged in this work, slipped and fell into the opening and into the hot water, and screamed for help, crying out in Croatian, which was the the native language of Markusic: ‘For good God! pull me out, people! pull me out!’ At this cry, the testimony is, markusic dropped his work and ran toward the place from which the cry came. The steam and vapor coming from the water so obscured the opening that he fell into the hole, and was so badly scalded that he died from the effects two days later. Gornick was being assisted out by others just as Markusic fell in. The distance from where deceased was working to the place where the accident occurred is estimated by witnesses to be from 100 to 150 feet. In traveling between the two points he would have to go about 50 or 75 feet south and then about 50 feet west around a boiler. The place of the accident could not be seen, apparently, from the place where deceased worked.

Section 1 of the act requires that compensation may be had for accidental injuries sustained by any employé ‘arising out of and in the course of the employment,’ etc. From the facts already stated, counsel for appellant argues that it was not shown that...