Victor Chem. Works v. Indus. Bd. of Illinois

• Decision Date: 22 June 1916
• Docket Number: No. 10529.,10529.
• Citation: 113 N.E. 173,274 Ill. 11
• Parties: VICTOR CHEMICAL WORKS v. INDUSTRIAL BOARD OF ILLINOIS et al.
• Court: Illinois Supreme Court

274 Ill. 11

113 N.E. 173

VICTOR CHEMICAL WORKS

v.INDUSTRIAL BOARD OF ILLINOIS et al.

No. 10529.

Supreme Court of Illinois.

June 22, 1916.

Error to Circuit Court, Cook County; Oscar M. Torrison, Judge.

Proceedings under Workmen's Compensation Act by Casimo Landolina, as administrator, claimant, for death of his intestate, against Victor Chemical Works, employer. To a confirmation of the award of an arbitration committee by the Industrial Board, the employer brought certiorari to the circuit court, and, after an order quashing the writ of certiorari after hearing, the case was certified by the circuit court as one proper to be reviewed by the Supreme Court, and the employer brings error. Affirmed.Lewis A. Stebbins and Burton P. Sears, both of Chicago, for plaintiff in error.

Craig A. Hood, of Chicago Heights, and Simon T. Sutton and Harry A. Goldsmith, both of Chicago, for defendants in error.

CRAIG, C. J.

August 4, 1914, one of the defendants in error, Casimo Landolina, as administrator of the estate of Filippo Landolina, deceased, filed with the Industrial Board of Illinois his application for adjustment of claim against the plaintiff in error, the Victor Chemical Works, under the Workmen's Compensation Act, asserting that his brother, Filippo Landolina, was killed September 6, 1913, in an accident arising out of his employment by the plaintiff in error, and that claim for compensation was made on the plaintiff in error within six months thereafter under the Workmen's Compensation Act. An arbitration committee was appointed as provided in the act, a hearing was had, evidence was taken, and said committee on August 26, 1914, entered its award against plaintiff in error and in favor of the defendant in error for $6 per week for 416 weeks from September 6, 1913. Plaintiff in error filed a petition with the Industrial Board to review the award of the arbitrators, and said board on September 12, 1914, confirmed the award. No additional evidence was taken before the Industrial Board. The plaintiff in error thereafter filed its petition for a writ of certiorari with the circuit court of Cook county, and on April 3, 1915, said writ was ordered to issue to said Industrial Board to send up the record or said proceedings, and on April 20, 1915, a certified copy of all proceedings had before said board was returned to the circuit court pursuant to said writ. Thereafter, on November 24, 1915, the attorneys for the administrator moved to quash the writ of certiorari, and upon a hearing on said motion and an inspection by the court of the record of the Industrial Board the court entered an order quashing the writ of certiorari and awarding a procedendo, with costs. On motion of the plaintiff in error the court granted a certificate that the cause was one proper to be reviewed by this court and signed and sealed a bill of exceptions. A writ of error was sued out from this court.

It is assigned as error that the circuit court of Cook county erred in quashing the writ of certiorari and awarding the writ of procedendo for the reasons: (1) That the Workmen's Compensation Act of 1913 is unconstitutional; (2) that said act of 1913 does not apply to nonresident alien dependents; (3) that the evidence produced before the arbitrators, which was passed upon by the Industrial Board and is contained in the record, did not show that the deceased had contributed to the support of his parents; (4) that it was not affirmatively shown that the deceased was not a casual employé; and (5) that it was not shown that a proper claim for compensation had been made. These contentions will be considered in their order.

First. As to the constitutionality of the act, this court has held the Workmen's Compensation Act of 1911, which is similar to and of the same general effect as the act of 1913, to be constitutional. Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 N. E. 211, Ann. Cas. 1915A, 241;Crooks v. Tazewell Coal Co., 263 Ill. 343, 105 N. E. 132, Ann. Cas. 1915C, 304;Dietz v. Big Muddy Coal Co., 263 Ill. 480, 105 N. E. 289. Plaintiff in error claims, however, that the act of 1911 was held constitutional by this court because it was elective, and not compulsory; that the act of 1913, while in terms elective, the same as the act of 1911, is in effect compulsory, for the reason that the time given for election by employers as to whether or not they would accept or reject the provisions of said act is unreasonably short. The act was passed by the Legislature, and was approved by the Governor on June 28, 1913, and went into effect the 1st day of July following, by reason of the provisions of the Constitution. Without discussing the reasoning of this court in the cases above referred to in which the act of 1911 was held constitutional, and assuming, for the sake of argument, that the act of [274 Ill. 15]1911 was held constitutional because it was elective, and that the act of 1913 should be held constitutional for the same reason, we think it is true, as contended by plaintiff in error, that where the act is made elective a reasonable time must be given by the act in which to exercise the election. Is the act, however, subject to the objection made? Section 1 of the act (Laws of 1913, p. 337), provides:

‘That any employer in this state may elect to provide and pay compensation for accidental injuries sustained by any employé arising out of and in the course of the employment according to the provisions of this act.’

Paragraph ‘a’ of the same section provides:

‘Election by an employer to provide and pay compensation according to the provisions of this act shall be made by the employer filing notice of such election with the Industrial Board.’

Paragraph ‘b’ provides:

‘Every employer within the provisions of this act who has elected to provide and pay compensation according to the provisions of this act shall be bound thereby as to all his employés covered by this act until January 1 of the next succeeding year and for terms of each year thereafter: Provided, any such employer may elect not to provide and pay the compensation herein provided for accidents resulting in either injury or death and occurring after the expiration of any such calendar year by filing notice of such election with the Industrial Board at least sixty days prior to the expiration of any such calendar year, and by posting such notice at a conspicuous place in the plant, shop, office, room, or place where such employé is employed, or by personal service, in written or printed form, upon such employé, at least sixty days prior to the expiration of any such calendar year.’

Section 2 provides:

‘Every employer enumerated in section 3, paragraph (b), shall be conclusively presumed to have filed notice of his election as provided in section 1, paragraph (a), and to have elected to provide and pay compensation according to the provisions of this act, unless and until notice in writing of his election to the contrary is filed with the Industrial Board and unless and until the employer shall either furnish to his employé personally or post at a conspicuous place in the plant, shop, office, room or place where such employé is to be employed, a copy of said notice of election not to provide and pay compensation according to the provisions of this act; which notice of nonelection if filed and posted as herein provided, shall be effective until withdrawn; and such notice of nonelection may be withdrawn as provided in this act.’

[1] It is the contention of counsel that plaintiff in error, not having taken affirmative action by filing a rejection of the act with the Industrial Board before July 1, 1913, was by the express terms of section 2 of the act conclusively presumed to have elected to have accepted the same, and was bound thereby, and could not escape from its terms until January 1, 1914, and then only by filing a notice of rejection by November 1, 1913. Before said date the accident from which this case arose occurred, September 6, 1913, at a time, therefore, before plaintiff in error could possibly have rejected the act, and at a time when it had been arbitrarily forced into the position of having elected to accept the same. We do not so understand the meaning and intent of this act. When the constitutionality of a statute is questioned it is the duty of the courts, and also a rule of construction, to adopt such construction as will make the statute constitutional if its language will permit. There is a strong presumption in favor of the validity and constitutionality of an act, and courts should not declare acts of the Legislature unconstitutional unless satisfied of their unconstitutionality beyond a reasonable doubt.

The main fault found with the act is section 2, above set out. The act was passed and went into effect on July 1, 1913. Either employers or employés could elect not to come within the provisions of the act. In the first sentence of the first section it is provided that any employer may elect to provide and pay compensation, etc., according to the provisions of the act, and paragraph ‘a,’ following, provides that such election ‘shall be made by the employer filing notice of such election with the Industrial Board.’ So far there is required an affirmative action on his part. Paragraph ‘b’ of section 1, immediately following paragraph ‘a’ above set out, provides that ‘every employer within the provisions of this act who has elected to provide and pay compensation according to the provisions of this act shall be bound,’ etc., until January 1st of the next succeeding year. Undoubtedly this provision would apply to all employers who had actually filed notice with the Industrial Board of their election to be bound by the act. Section 2 provides that every employer ‘shall be conclusively presumed to have filed notice of his election as provided in section 1, paragraph (a), and to have elected to provide and pay compensation according to the provisions of this...