Wargo v. Industrial Commission

• Citation: 317 N.E.2d 519,58 Ill.2d 234
• Decision Date: 27 September 1974
• Docket Number: No. 45652,45652
• Parties: Mary B. WARGO, Appellant, v. The INDUSTRIAL COMMISSION et al. (The County of La Salle, Appellee.)
• Court: Supreme Court of Illinois

Page 519

317 N.E.2d 519

58 Ill.2d 234

Mary B. WARGO, Appellant, v. The INDUSTRIAL COMMISSION et al. (The County of La Salle, Appellee.)

No. 45652.

Supreme Court of Illinois.

Sept. 27, 1974.

John Olivero, Peru, for appellant.

Bayler & Noetzel, Peoria (Henry D. Noetzel, Peoria, of counsel), for appellee.

WARD, Justice:

On October 22, 1965, Mary B. Wargo, the widow of Michael J. Wargo, filed a claim with the Industrial Commission alleging that her husband had suffered a fatal heart attack in the course of his employment as a judge of election for the County of La Salle on November 3, 1964. An arbitrator for the Commission found that Mr. Wargo had been an employee of the County of La Salle but that Mary B. Wargo, the petitioner, had failed to prove that the attack had arisen out of and in the course of his employment. The Commission in May, 1969, affirmed the decision of the arbitrator, and in October, 1972, the circuit court of the county of La Salle affirmed the Commission's action. The record does not disclose the reason for the extraordinary delay in completing the proceedings. The petitioner has appealed to this court under Supreme Court Rule 302(a)(2). 50 Ill.2d R. 302(a), Ill.Rev.Stat.1973, ch. 110A, § 302(a)(2).

It will not be necessary for us to consider whether the conclusion that the petitioner failed to prove that her husband's heart attack was an accident which arose out of his work was contrary to the manifest weight of the evidence, because the husband at the time of his death was serving as an official of the County of La Salle and not as an employee. He therefore was not within the coverage of the Workmen's Compensation Act. Ill.Rev.Stat.1965, ch. 48, par. 138 et seq.

Public employees are within the Act's protection but public officials are not. The Act in defining 'employee' specifically includes public employees and excludes officials: '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.1965, ch. 48, par. 138.1(b).

Most workmen's compensation statutes have similar provisions which exclude officials from the benefits of the statute. 1A Larson, Workmen's Compensation Law, sec. 56.20.

McQuillin's Law of Municipal Corporations outlines indicia which distinguish officials from employees: 'The essential characteristics which differentiate a public office from mere employment are said to be: (1) An authority conferred by law, (2) the power to exercise some portion of sovereign functions of government, and (3) permanency and continuity.' (3 McQuillin, Law of Municipal Corporations, par. 12.30.) It is noted too that the term employee 'is usually used in contradistinction to the term 'officer' to indicate one not exercising some portion of the sovereign functions of government.' 3 McQuillin, Law of Municipal Corporations, par. 12.35.

Larson is less specific in setting out circumstances which he considers distinguish an official. He says: 'An official is distinguished from an employee both by his exercise of some portion of a sovereign power and by the importance, dignity and independence of his position. Of these tests, both suffering somewhat from the certain unavoidable vagueness, the former is the more fundamental and workable.' 1A Larson, Workmen's Compensation Law, sec. 56.20.

This court has said also that an official within the meaning of section 1(b) of the Workmen's Compensation Act, which we have quoted above, is one who was either recognized as a public official at common law (Winnebago County v. Industrial Com., 39 Ill.2d 260, 263, 234 N.E.2d 781) or who holds a public 'office' specifically created by the constitution or by other law. Village of Streamwood Police Dept. v. Industrial Com., 57 Ill.2d 345, 312 N.E.2d 239; County of Cook v. Industrial Com., 55 Ill.2d 540, 543, 304 N.E.2d 616; City of Danville v. Industrial Com., 38 Ill.2d 479, 231 N.E.2d 404; Krawiec v. Industrial Com., 372 Ill. 560, 25 N.E.2d 27.

In People ex rel. Landers v. Toledo, St. Louis and Western R.R. Co., 267 Ill. 142, 145--146, 107 N.E. 879, 881, this court considered whether the positions of assistant State's Attorney and assistant superintendent of schools were to be considered as offices. The court noted some of the marks of an office, as contrasted with simple employment, saying: '* * * the positions * * * are created by law. Their...