Slike stranica

dence that Henry Gerkin, an employee in the recorder's office, was told by one of the employees on the day of the accident that Michelson had been hurt; that the then chief clerk in the recorder's office told him to go over and take care of Michelson, get a doctor, and take him home; that Gerkin reported to the chief clerk in the recorder's office that Michelson had been hurt, which was only a few minutes after the accident had happened; that within 30 days he had talked to Joseph F. Haas, the recorder, about Michelson's accident and how he was getting along. The Industrial Commission affirmed the finding of the arbitrator, and the superior court of Cook county vacated and set aside the decision and remanded the cause to the Industrial Commission, with directions to allow both parties to introduce further evidence if they saw fit. Gerkin again testified that he had talked to Haas on the same day the accident happened and at the time Michelson was in the doctor's office in the health department in the city hall. He testified that Haas told him to take care of Michelson and get a cab or patrol wagon; that within 30 days he talked several times to Haas about Michelson's condition. The Industrial Commission again found for plaintiff in error and fixed the compensation the same as in the previous order. On writ of certiorari to the superior court, that court again set aside the decision and award of the Industrial Commission and quashed the proceedings.

It appears from the record that Gideon C., from the recorder's office came to see her Michelson, husband of Fredica O. Michelson, husband. It further appears from the evion September 2, 1921, was employed in the recorder's office of Cook county, Ill. His duties were to search the tax records and carry record books from one office to another. While carrying books in the county building on that day, he entered one of the elevators in the building, which was in some manner started, and he fell to the floor of the elevator. His legs projected beyond the floor of the elevator and the top of the iron work inclosing the door. His right leg was broken at or near the ankle and a gash cut in his left leg near the knee. He was a man about 56 years of age, weighing about 220 or 230 pounds. He had formerly lived in the South, but due to asthmatic attacks he was advised to move from that climate and so removed to Chicago. At the time of the accident, although physically able to do the work and apparently in good health, he had high blood pressure, hardening of the arteries, and chronic disorders of the heart and kidneys. He had worked in the recorder's office for about two years prior to the accident. Immediately after the accident he was given first aid and taken to his home, where he was treated for his wounds. The wound in his leg became infected. This infection continued for two or three weeks. He returned to work November 28, 1921, but was unable to work full time. He frequently left his work between 1 and 2 o'clock in the afternoon. He was unable to carry the books as he had done prior to the accident, and on January 15, 1922, he died of apoplexy, shown to be due to a hemorrhage of the brain, brought about by his kidney and heart condition.

The family physician, Dr. Kirk, testified that in his opinion the accident made the condition of the kidneys worse and tended to increase the blood pressure, giving more work for the heart to do, and hastened Michelson's death. The widow testified that the attacks of asthma became more frequent after the accident. Dr. Patton and Dr. N. H. Adams testified that in their opinion the accident hastened the death of the deceased by its harmful effect upon an already diseased heart and arteries. Dr. William O. Krohn testified on behalf of defendant in error that in his opinion the accident did not have anything to do with the man's death, but that his rest and quiet in bed after the accident had a tendency to help his heart, his high blood pressure, and kidneys.

The stipulation filed showed the earning capacity of deceased to be $43 per week. The arbitrator awarded $14 per week for 2676 weeks and $200 for medical services. On a hearing on the petition for review of the decision of the arbitrator, filed by defendant in error, testimony was heard on behalf of plaintiff in error as to notice of the accident. The widow testified that three or four men

Plaintiff in error urges that the holding of the superior court that the notice was insufficient was erroneous, and that the court erred in quashing the record of the Industrial Commission. Defendant in error contends the decision of the superior court was correct, first, because the record fails to show that the notice required by the Workmen's Compensation Act was given to the county of Cook; and, second, because the evidence failed to show that the accident caused or hastened the death of Michelson.

[1] As to the question of notice, defendant in error contends that notice must be given in writing since the amendment of section 24 of the Workmen's Compensation Act, July 1, 1921 (Laws 1921, p. 460). That question was fully considered by this court in Heyworth v. Industrial Com., 321 Ill. 298, 151 N. E. 920, where it was held that in the absence of a showing by the employer that he is prejudiced by the failure to give written notice, where oral notice is given, written notice will not be required.

[2] Defendant in error contends, however, that notice to the county, to be valid, must be given to some one capable of binding the county; that the recorder of deeds is not such a person, and that therefore notice to him or some employee in his office does not. constitute notice to the county of Cook. There

(158 N.E.)

is no claim in the record that defendant in error was in any way prejudiced by the character of the notice given, but it is argued that there was no sufficient notice to the county. It is clearly shown that deceased was employed in the office of the recorder of deeds of Cook county on September 2, 1921; that he was injured while in the line of his duty; that he returned to work in November of the same year, and died in January, 1922, and at the time of his death was still an employee in the recorder's office of Cook county. The statute is silent concerning who shall be served with notice on behalf of the county in a case of this kind. By section 24 notice is to be given to the employer as soon as practicable, but not later than 30 days after the accident. Who is the employer? The salary of the employee is paid by the county. The recorder represents the county, in that he had power to employ the deceased and to bind the county for the payment of his salary. He alone may dismiss an employee. He is therefore the agent or vice principal of the county. We are of the opinion that, so far as the purpose of the statute requiring notice is concerned, notice to the recorder is notice to the county, and that the requirements of the statute are by such notice met. The recorder had notice of the injury to Michelson the next day after the injury. Heyworth v. Industrial Com., supra.

The superior court erred in setting aside the finding of the Industrial Commission and in quashing the record of the commission, and its judgment is reversed, and the award of the commission confirmed.

Judgment reversed, and award confirmed.

(327 III. 158)

PEOPLE ex rel. SWANSON et al. v. WEIN-
BERG et al. (No. 18235.)

Supreme Court of Illinois. Oct. 22, 1927.
I. Quo warranto 52-Judgment of not guilty
must be entered on overruling demurrers to
pleas constituting bar to action, notwith-
standing issues joined on other pleas.

Where trustees of sanitary district were charged by information in nature of quo warranto with usurping office, and they set up pleas which constituted bars to the action, on overruling demurrers to such pleas judgment of standing that issues were joined on other pleas. not guilty should have been entered, notwith2. Health 4-Act authorizing creation of sanitary districts requires but one publication of notice of meeting of commissioners and of election to organize (Laws 1917, p. 396, § 1; Smith-Hurd Rev. St. 1925, c. 100, § 3).

creation of sanitary districts and for sewage Act June 22, 1917 (Laws 1917, p. 396), for disposal, providing in section 1 for notice of

As no error is argued concerning the hold-time and place of meeting of commissioners ing of the Industrial Commission that the parties to the proceeding were under the Compensation Act, it is not necessary to con

sider that matter here.

[3, 4] Defendant in error urges, however, that the evidence does not show that Michelson's death was caused by the injury referred to. The widow testified that, while he had had asthma, he had been cured of it for some time before the injury; that it recurred frequently after the injury; that before the injury he appeared to be a healthy man, but that after the injury he was nervous, much weaker, and slept poorly. As we have seen, the family physician testified that it was his opinion that the accident, because of the additional load placed on the heart and arteries by the ipjury and infection, hastened the death of Michelson. Two other physicians testified to a like conclusion from a hy pothetical question covering the evidence of the witnesses. One physician testified in response to such hypothetical question that in his opinion the injury had nothing to do with Michelson's death. Regardless of the conclusion which this court would reach were we hearing the evidence, the rule is that the findings of the Industrial Commission on the facts will not be disturbed unless against the manifest weight of the evidence. Consolidated Coal Co. v. Industrial Com., 311 Ill. 61, 142 N. E. 498; Peabody Coal Co. v. Industrial Com., 311 Ill. 338, 143 N. E. 90.

and of election to organize district by publication inserted in one or more daily or weekly papers at least 20 days prior thereto, merely requires a single publication, notwithstanding Smithcation for three successive weeks, where number Hurd Rev. St. 1925, c. 100, § 3, requiring publiof publications is not specified.

Appeal from Circuit Court, Knox County; Willis F. Graham, Judge.

Action in the nature of quo warranto by the People, on the relation of R: Maynard Swanson and others, against L. Weinberg and others. From a judgment of ouster, defendants appeal. Reversed and remanded.

Edmund D. Adcock, of Chicago, and Woolsey & Lucas, of Galesburg, for appellants. Bardens & Hardy and Marsh, Lewis & ThompR. C. Rice, State's Atty., and Hardy, Hardy, son, all of Galesburg, for appellees.

THOMPSON, J. An information in the nature of quo warranto was filed in the circuit court of Knox county charging that appellants, L. Weinberg, J. E. Potter, and D. B. Swanson, were unlawfully usurping and executing the office of trustees of the Gales burg sanitary district. To this information seven pleas were filed and demurrers were filed to each plea. All of the demurrers were overruled and a rule was entered on relators to plead or stand by their demurrers. Gen

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

eral replications were filed to the second,, passing of the tax levy ordinance, the filing fourth, and sixth pleas, but no replies were of the certificate of levy and the extension made to the first, third, fifth, and seventh of taxes thereon, and acquiescence in the pleas, appellees electing to stand by their de-action of the trustees in the management of The cause came on for trial before the affairs of the district.


a jury on the second, fourth, and sixth pleas, [1] Each of these pleas was a bar to the the question submitted to the jury being action, and when the demurrers to these whether the construction and maintenance of pleas were determined in favor of the pleas the plant for the treatment of sewage of the and appellees elected to stand by the demurdistrict and the construction and mainte- rers the court should have entered a judgnance of a common outlet for the drainage ment of not guilty. People v. Bug River thereof would conduce to the preservation of Drainage District, 189 Ill. 55, 59 N. E. 605; the public health. There was a verdict of Bissell v. City of Kankakee, 64 Ill. 249, 21 guilty and a judgment of ouster. This ap-Am. Rep. 554. The fact that there were peal followed. other pleas on which issues were joined is Appellants rely for reversal upon the fol- immaterial. The court should have entered lowing errors: (1) The verdict of the jury judgment on the pleas which stood as a was against the preponderance of the evi- bar to the action. The trial on the other dence; (2) the court admitted improper evi- pleas, with these pleas standing, was a nullidence for appellees and refused proper evi- ty. 2 Tidd's Practice, 3d Am. from 9th Lond. dence offered by appellants; (3) attorneys Ed. *741. The first, third, fifth, and seventh for appellees made improper statements in pleas' answered the information, and, their their argument to the jury; and (4) the mo- averments being admitted by the demurtion in arrest of judgment should have been rers, there was nothing left for trial. granted because the verdict was on an immaterial issue and because the pleadings do not support the judgment. Appellees assign cross-errors questioning the action of the court in overruling their demurrers to the first, third, fifth, and seventh pleas of ap pellants.

[2] Appellees contend, however, that the court erred in sustaining the pleas, for the reason that they showed on their face that proper notice had not been given to confer jurisdiction on the authorities to proceed with the organization of the district. Section 1 of the act requires that notice shall be given by the county judge of the time and

The first plea set up in detail a complete record of the proceedings taken in the or-place where the original commissioners will ganization of the district and alleged compliance with the provision of the act of June 22, 1917, authorizing the creation of sanitary districts and providing for sewage disposal. The third plea set out verbatim the petition to the county judge, signed by upwards of 100 legal voters of the territory, and alleged compliance with the statute. The fifth plea is like the first in every respect except that it sets forth more in detail certain orders entered by the trustees and by the county judge in the organization of the district. The seventh plea is substantially the same as the second, which sets forth the complete record as in the first plea, and in addition alleges that the territory of the sanitary district was and is contiguous, that it contains only one incorporated city, that none of the territory of the district, which is not situated within the limits of the city of Galesburg, is more than three miles from the corporate limits, and that none of said territory is within any other sanitary district. The seventh plea further alleges that the relators and the public generally are estopped from questioning the due organization and existence of the district because of the final adjudication of the questions by the trustees, the overwhelming vote of the voters in favor of the district, the orders of the county court relating to the establishment of the district, the

meet, "by a publication inserted in one or
more daily or weekly papers published in
such proposed district, at least twenty days
prior to such meeting," and of the election
to organize the district "at least twenty (20)
days prior thereto by publication in one or
more daily or weekly papers published with-
in such proposed sanitary district." Laws of
1917, p. 396. Appellees argue that inasmuch
as the number of publications is not specified,
section 3 of chapter 100 of the statutes
(Smith-Hurd Rev. St. 1925), which pro-
vides, "Whenever notice is required by law,
or order of court, and the number of publi-
cations is not specified, it shall be intended
that the same be published for three suc-
cessive weeks," shall apply. The language
of the act under construction is a fun reply
to this argument. Similar questions have
been before the court on several occasions,
and it has been held uniformly that language
similar to that used in the act before us re-
quires a single. publication. Central Illi-
nois Public Service Co. v. City of Taylorville,
307 Ill. 311, 138 N. E. 623; Stone v. City of
Chicago, 207 Ill. 492, 69 N. E. 970; Aldis
v. South Park Com'rs, 171 Ill. 424, 49 N. E. .
565; Weld v. Rees, 48 Ill. 428.

The judgment is reversed, and the cause is remanded to the circuit court of Knox county.

(158 N.E.)

(327 111. 246)
(No. 18033.)

Supreme Court of Illinois. Oct. 22, 1927.

1. Municipal corporations 304 (5)-Ordinance must describe improvement and its component parts with certainty, but need not set forth in minute detail every particular.

Ordinance for construction of improvement must describe contemplated improvement and its component parts with certainty, but it need not set forth in minute detail every particular of improvement and every circumstance of work, since some discretion concerning details must necessarily be left to board of local improvements.

2. Municipal corporations ~304 (5)—Ordinance for improvement may make certain product standard of quality and fitness, and require material used to equal it.

Ordinance for construction of local improvement may make certain product, substance, or compound standard of quality and fitness, and require that only material equal to it in all respects shall be used.

3. Municipal corporations 304 (5)-Discretion to permit substitution of substance meeting standard prescribed is not broad enough to allow construction of improvement of materials essentially different.

Discretion to permit substitution of particular substance meeting standard prescribed in ordinance for construction of local improvement is not broad enough to allow construction of substantial part of improvement in manner and of materials essentially different from specifications of ordinance.

4. Municipal corporations 304(1)-Ordi-
nance for construction of sewage treatment
plant of certain specifications, "or its equal in
efficiency," held indefinite, and therefore void.
Ordinance for construction of sewage treat-
ment plant, providing that "treatment plant
shall consist of septic tank of following form,
dimensions, and specifications, or its equal in
efficiency," followed by specifications, held in-
definite and insufficient, and therefore void, since
ordinance permitted substitution of treatment
plant all together different from one specified,
subject only to condition of equal efficiency.
5. Municipal corporations 444-Where ordi-
nance for improvement is void, court cannot
confirm special assessment (Local Improve-
ment Act 1897).

A valid ordinance for construction of improvement is basis of every special assessment, under Local Improvement Act of 1897, p. 101; and, if ordinance is void, county court has no power to confirm assessment.

the assessment, they appeal. Reversed and remanded, with directions.

Mitchell & Wilson, of Freeport, for appellants.

J. N. Gates, of Lena, and A. H. Manus, of Freeport, for appellee.

DE YOUNG, J. The president and board of trustees of the village of Lena, in Stephenson county, passed an ordinance for the construction of a system of sewers and a sewage treatment and disposal plant. A petition for the levy of a special assessment for the proposed improvement was filed in the county court of Stephenson county. Objections to the assessment were interposed by a number of landowners. The legal objections were overruled, the objectors waived any controversy concerning the question of benefits, and the assessment was confirmed. From the judgment of confirmation, William Kable and 25 other objectors prosecute this appeal.

The objections upon which errors are assigned and argued are: (1) That the ordinance for the improvement was not passed at a legally called meeting of the president and board of trustees of the village; (2) that the engineer's estimate and the ordinance leave the character, dimensions, and specifications of the sewage treatment and disposal plant to be determined by the contractor, and that the ordinance is therefore void; (3) that

the oath of the commissioner who made the assessment was taken before a notary public, who was one of the attorneys for the petitioner; and (4) that certain parcels of property which will be benefited by the improvement are not assessed therefor.

A review of the record discloses that consideration of the second objection, only, is necessary.

A substantial item in the engineer's estimate of the cost of the improvement is:

taining two settling chambers and one gas vent "One septic tank of reinforced concrete, conwith baffle walls, concrete inlet and outlet over one sludge digestion chamber, provided troughs with cast-iron wiers and cast-iron support for sludge pipe, covered with brick building with windows, door and ventilator, and asphalt shingle roofing (said building being estimated to cost $475) complete in place, including building, excavation and surrounding refilling and seeding, or its equal in efficiency, $4,352."

Section 4 of the ordinance provides that: "The treatment plant shall consist of a septic tank of the following form, dimensions and

Appeal from the Stephenson County Court; specifications, or its equal in efficiency." Edward E. Laughlin, Judge.

The specifications for the construction of Petition by Village of Lena for levy of spe- the tank follow at considerable length, but cial assessment for proposed improvement. the alternative to build a tank of equal effiObjections were interposed by William Ka- ciency is not eliminated. The treatment plant ble and others. From a judgment confirming will be an integral and substantial part of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The judgment of the county court is reversed, and the cause is remanded to that court, with directions to dismiss the petition. Reversed and remanded, with directions.

the proposed improvement. There may be (134 N. E. 121; City of Lincoln v. Harts, 250 many ways in which such plants can be Ill. 273, 95 N. E. 200; American Hide & built. The engineer's estimate contemplates, Leather Co. v. City of Chicago, 203 Ill. 451, and the provision of the ordinance permits, 67 N. E. 979. the substitution of a treatment plant altogether different from the one specified, subject only to the condition of equal efficiency. One plant may be as efficient as another, yet substantial differences between the two in cost and durability may exist. The right of substitution destroys the certainty that the treatment plant will be constructed in the manner and of the materials prescribed by the ordinance. The officer or body exercising the function of deciding whether the substituted plant is as efficient as the one specified would necessarily do so under a supposed delegated authority, and, if the substitution was approved, a substantial part of the improvement would differ from that which the property owner had been led to believe would be constructed and for the payment of which his property is assessed.

(327 III. 137)

PEOPLE v. AKERS. (No. 18315.) Supreme Court of Illinois. Oct. 22, 1927. Courts 219(8)—Evidence held to show walver of any violation of constitutional rights, by unlawful search, precluding exercise of jurisdiction by Supreme Court.

Evidence held to show that defendant consented to search of his automobile by officers without search warrant, and hence he waived any right to complain that his constitutional rights had been invaded, precluding exercise of jurisdiction by Supreme Court.

Thompson, J., dissenting.

Error to Lawrence County Court; J. A. Benson, Judge.

William Akers was convicted of unlawfully possessing and transporting intoxicating liquor on two counts, and he brings error. Cause transferred to Appellate Court.

Fred W. Gee and Shaw & Huffman, all of Lawrenceville, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., and Philip H. Lewis, State's Atty., of Lawrenceville, for the People.

[1-5] The ordinance must describe the contemplated improvement and its component parts with certainty. City of North Chicago v. Cummings, 266 Ill. 575, 107 N. E. 776; City of Geneseo v. Brown, 250 Ill. 165, 95 N. E. 172; McChesney v. City of Chicago, 213 Ill. 592, 73 N. E. 368; Washburn v. City of Chicago, 202 Ill. 210, 66 N. E. 1033; People v. Warneke, 173 Ill. 40, 50 N. E. 221. It is not necessary, however, to set forth in minute detail every particular of the improvement and every circumstance of the work, since some discretion concerning details must necessarily be left to the board of local improvements. City of East St. Louis v. Vogel, 276 Ill. 490, 114 N. E. 941; City of Watseka v. Orebaugh, 266 Ill. 579, 107 N. E. 887; City of Chicago v. Le Moyne, 243 Ill. 379, 90 N. E. 746. An ordinance for the construction of a local improvement may make a certain product, substance, or compound the standard of quality and fitness, and require that only material equal to it in all respects shall be used. Fishburn v. City of Chicago, 171 Ill. 338, 49 N. E. 532, 39 L. R. A. 482, 63 Am. St. Rep. 236; Hintze v. City of Elgin, 186 Ill. 251, 57 N. E. 856; City of Chicago v. Gage, The undisputed evidence shows that on 237 Ill. 328, 86 N. E. 633. This discretion, May 24, 1926, plaintiff in error was arrested however, may only be exercised to permit by the sheriff of Lawrence county on the the substitution of a particular substance or Illinois bank of the Wabash river at a point ingredient which meets the standard pre- about a mile and a half south of Vincennes, scribed, but it is not broad enough to allow Ind., at a place where there were many fishthe construction of a substantial part of the ing boats. After having been arrested plainimprovement in a manner and of materials tiff in error's automobile was searched withessentially different from the specifications out a search warrant, and in the car the ofof the ordinance. In respect of the treat- ficers found and seized a five-gallon jug conment plant, the ordinance is indefinite and taining three gallons of distilled water, two insufficient, and therefore void. A valid or- empty glass bottles, two small vials of colordinance is the basis of every special assess- ing matter, a tin measuring can with funnel ment under the Local Improvement Act of attached, a hydrometer, and a bottle contain1897, p. 101; and, if the ordinance is void, ing from one-eighth to one-fourth of a pint the county court has no power to confirm the of liquid which is claimed by defendant in assessment. People v. Freeman, 301 Ill. 562,error was intoxicating liquor. These articles

HEARD, C. J. Upon an information filed in the county court of Lawrence county charging plaintiff in error with violating the Prohibition Act (Laws 1921, p. 681), by unlawfully possessing and transporting intoxicating liquor, he was tried, convicted, and sentenced upon two counts, and he has sued out a writ of error from this court to review the record.

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