Smolen v. Indus. Comm'n

• Citation: 154 N.E. 441,324 Ill. 32
• Decision Date: 23 December 1926
• Docket Number: No. 17673.,17673.
• Parties: SMOLEN v. INDUSTRIAL COMMISSION et al.
• Court: Supreme Court of Illinois

324 Ill. 32

154 N.E. 441

SMOLEN

v.INDUSTRIAL COMMISSION et al.

No. 17673.

Supreme Court of Illinois.

Dec. 23, 1926.

Error to Circuit Court, Cook County; Harry M. Fisher, Judge.

Proceeding under the Workmen's Compensation Act by Thomas Smolen, opposed by the Western Steel Car & Foundry Company, employer, in which compensation was awarded. Later the employer presented a petition under Workmen's Compensation Act, § 8, par. (f), and the Commission modified the award. On a writ of certiorari, the circuit court set aside the Commission's order, and the employer brings error.

Reversed, and writ of certiorari quashed.

Farmer, J., dissenting.Cassels, Potter & Bentley, of Chicago (Ralph F. Potter, and Claud D. Raber, both of Chicago, of counsel), for plaintiff in error.

Augustine J. Bowe, and William J. Bowe, both of Chicago, for defendant in error.

DUNN, J.

The Industrial Commission made an award for total permanent incapacity for work under the Workmen's Compensation Act (Laws 1913, p. 335) on April 8, 1921, in favor of Thomas Smolen against the Western Steel Car & Foundry Company, his employer, for $3,500, payable in weekly installments, and for a pension, after the time of payment of the installments had expired, of $23,33 a month for the remainder of his life. All the installments accruing until July 15, 1925, amounting to $2,975.44, were paid. On April 6, 1925, the employer presented a petition under paragraph (f) of section 8 of the Workmen's Compensation Act, representing that about August 1, 1924, and ever since, Smolen had been employed by the Chicago & Western Indiana Railroad Company, and had earned, or been able to earn, as much as before his injury, and praying for an order modifying and suspending the payment of compensation. Upon a hearing the commission of October 29, 1925, ordered that payments under the award be made until the date of filing the petition, April 6, 1925, and thereafter 41 1/2 cents a week should be paid for 104 weeks, and upon the expiration of that time all payments of compensation should cease. Upon a writ of certiorari the circuit court of Cook county set aside the order, finding that the Industrial Commission was without jurisdiction to enter it, and a writ of error was allowed to the Western Steel Car & Foundry Company to review the record.

Paragraph (f) of section 8 of the Workmen's Compensation Act was amended in 1921 by the addition of the proviso that--

‘Any employee who receives an award under this paragraph and afterwards returns to work, or is able to do so, and who earns or is able to earn as much as before the injury, payments under such award shall cease; if such employee returns to work, or is able to do so and earns or is able to earn part but not as much as before the injury, such award shall be modified so as to conform to an award under paragraph (h) of this section.’ Laws of 1921, p. 453.

Before this amendment an award for total disability could be reviewed by the commission only within 18 months after it was made and upon the ground that the disability had subsequently recurred, increased, diminished, or ended. The amendment of 1921 was considered by the court in the cases of Arnold & Murdock Co. v. Industrial Com., 314 Ill. 251, 145 N. e. 342, 40 A. L. R. 1470, and Superior Coal Co. v. Industrial Com., 321 Ill. 240,152 N. E. 535. In the former case the award was made in February, 1916, more than five years before the amendment of 1921 was passed. It was confirmed by the circuit court, and the decision of the circuit court was affirmed by this court in February, 1917. In March, 1917, the employer filed a petition under paragraph (h) of section 19 of the Workmen's Compensation Act, alleging that the disability had decreased or ended, and praying that the award be decreased. Upon a hearing the Industrial Commission dismissed this petition on the ground that the disability had not decreased or ended. Subsequently the act of 1921 amending section 8 having been passed, the employer, on May 3, 1922, filed a petition under paragraph (f) of the amended section, praying for a modification of the award on the ground that the disability had diminished or ended. It was held that upon the making of the award and its confirmation by final judgment it became a vested right in the employee which would not be affected by subsequent legislation, and therefore the amendment of 1921 did not apply to it. In the latter case the award was made on September 16, 1920, and the compensation awarded was paid until July 13, 1923. On March 7, 1923, the employer filed a petition for review under paragraph (h) of section 19 on the ground that the disability had diminished and ended. A motion was made to dismiss the petition on the ground that it had not been filed within 18 months of the date of the award, but evidence was introduced, and at its conclusion an amended petition under paragraph (f) of section 8 was allowed to be filed, and the commission dismissed the petition of the ground that the disability had not decreased. The circuit court confirmed this decision, but this court reversed the judgment, holding that the award was not a vested right beyond the reach of legislative power, since it was still subject to review at the time the amendment became effective. The court thereupon proceeded to a consideration of the petition under the provisions of paragraph (f) of section 8, and in view of the evidence, which tended to show that the defendant in error was earning 25 week, reversed the judgment of the circuit court and remanded the cause, directing the award to be reviewed as provided in paragraph (f) of section 8. The award in favor of the defendant in error was by the law subject to the right of the plaintiff in error to have it reviewed in the manner provided by the act, but that manner was a mere question of procedure, and a change in the law which affectsonly the remedy or procedure governs all rights of action without regard to whether they accrued before or after such change.

[1] Counsel for the defendant in error concede that the latter case is substantially identical with the case now under consideration and is adverse to their position, but argue the question, which they say was not raised or discussed in either of the cases cited, that the amendment, if given the retroactive effect which it was given in the Superior Coal Co. Case, impairs the obligation of a contract and divests vested rights. In Keeran v. Peoria, Bloomington & Champaign Traction Co., 277 Ill. 413, 115 N. E. 636, in discussing the Workmen's Compensation Act it was said:

‘The employers who accepted the provisions of the act assumed the definite liabilities it imposed upon them in consideration of their exemption from their common-law liability, while the employees who accepted surrendered their common-law rights in consideration of the definite remedy given by the act. The provisions of the act become a binding contract as to all who accept them.’

[2][3][4][5] Whether the obligation imposed by the Workmen's Compensation Act is contractual in its nature or entirely statutory does not affect the question of the right of the Legislature to change the remedies provided for its enforcement. It is well understood that the Legislature has no authority to pass a law impairing the obligation of a contract or depriving a citizen of his property or of any vested right, but there is no vested right in a public law which is not in the nature of a grant, and however beneficial an act of the Legislature may be to a particular person or class of persons, or however injuriously they may be affected by its repeal, the Legislature clearly has the right to abrogate all legislative acts which are not in the nature of contracts or private grants. The repeal of a law cannot impair vested...