and we infer from the record that this was done, and, in fact, was the only thing that could be done at the time of the Meredith survey. The public were entitled to a road, and the public officials having supervision of such matters-the commissioners of highways had the right, and it was their duty on a petition being filed with them for that purpose, to have said road surveyed and the boundaries established according to law, and this was done by the Meredith survey in 1897. In making this survey and establishing the boundaries of the road, reference was undoubtedly had to the road as traveled. It was not fenced throughout its entire length, but was fenced a portion of the way on the south side, and the south line of the road as established by Meredith was about where the fences were built by plaintiff in error and rebuilt by him from time to time, and which were removed by defendants in error after the Warner survey. The most natural point to be taken by Meredith in establishing this road was the intersection of the road in question with the north and south road, which he also surveyed. If any thing would show the location of these roads as established by user or prescription it would be the intersection point of the two roads. On the whole, we think there can be no question but that the boundaries of the road in controversy as fixed by Meredith, and which are shown by the plat of his survey, constituted its true boundaries, and the public are estopped from claiming that the road ran upon a different line from the survey. Gentleman v. Soule, 32 Ill. 271, 83 Am. Dec. 264. The road being thus established it could not be changed except in some manner provided by law. Neither the commissioners of highways nor any one else have a right to alter, widen, vacate, or lay out roads through the lands of others except in the manner provided by law, upon a petition of landowners and upon a hearing by the commissioners in the manner provided by the Road and Bridge Law (Hurd's Rev. St. 1915-16 c. 121). The action of the commissioners of highways in this case amounted to an alteration of the road in controversy, which they had no right or authority to do in the manner they did. The Meredith survey established the boundaries of said road until the road was altered or relocated in the manner provided by law. road as established by the Meredith survey. He could not very well point out a line that had not been established. In any event, the exact line which he pointed out as in his opinion constituting the south boundary of the road is not shown by the evidence, and is altogether too indefinite and uncertain upon which to base an estoppel to prove the true boundaries of the road. He referred to a stump standing in the road at one place, but whether the line pointed out by him along this road was 1 foot or 10 feet from the line of the Meredith survey or the line of the Warner survey is very uncertain. If the line subsequently established by the Warner survey had been definitely fixed and was visible, and plaintiff in error had agreed to such line, and the commissioners, as a result of such action, had done something that would cause them or the public a loss or damage to undo, a different question would be presented; but it is very certain from the testimony of all the witnesses and from the protest made by plaintiff in error, together with his subsequent actions, that he never agreed or consented that the south line of the road was inside of his fence and garden, which the commissioners proceeded, without sufficient warrant or authority, to destroy. For the reasons given, the judgments of the Appellate and circuit courts will be reversed and the cause remanded to the circuit court, with directions to enter a decree as to the east and west road described in the bill in accordance with the prayer of the bill of plaintiff in error. Reversed and remanded, with directions. (273 I11. 590) ARMOUR & CO. v. INDUSTRIAL BOARD OF ILLINOIS et al. (No. 10719.) (Supreme Court of Illinois. June 22, 1916.) 1. MASTER AND SERVANT 403-WORKMEN'S COMPENSATION ACT-DEATH IN SERVICE BURDEN OF PROOF. In proceedings under the Workmen's Comfor death of her husband, the burden is upon the pensation Act (Laws 1913, p. 337) by a widow widow to show that decedent's death was caused by an accidental injury arising out of and in the course of his employment. Servant, Dec. Dig. 403.] [Ed. Note.-For other cases, see Master and 2. MASTER AND SERVANT 418(6) — WORKMEN'S COMPENSATION ACT-REVIEW-ERRORS OF LAW. On writ of error to review judgment of the circuit court, confirming an award of the Indusrecord for errors of law only, and, where there trial Board, the Supreme Court can examine the is evidence fairly tending to show deceased was injured in course of employment, the judgment must be affirmed. [4] It was held by the court below that the plaintiff in error, by pointing out to the commissioners of highways on one occasion the south line of the road about where the south line was subsequently established by the Warner survey, was thereby estopped from claiming that such line was not the south boundary of the road. Such alleged action Such alleged action of the plaintiff in error is certainly totally at variance with his actions in this suit and is denied by him. He claims that he was Under the Illinois statute, the inquest of trying to point out the boundaries of the the coroner and the verdict of his jury are com [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 418(6).] 3. CORONERS 22-CORONER'S VERDICT-COM PETENCY. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes petent evidence in an inquiry as to the cause of a death. [Ed. Note. For other cases, see Coroners, Cent. Dig. § 28; Dec. Dig. 22.] DENCE. 4. CORONERS 22-CAUSE OF DEATH-EVIA coroner's verdict is competent evidence, in cases under the Workmen's Compensation Act, and, though not conclusive, makes out a prima facie case. [Ed. Note. For other cases, see Coroners, Cent. Dig. § 28; Dec. Dig. 22.] 5. CORONERS 18-VERDICT OF JURY-FORM. The form of the verdict of a coroner's jury, "We, the jury, are of the opinion that," etc., did not make the statement any the less a finding of the jury. [Ed. Note. For other cases, see Coroners, In a widow's proceedings under the Workmen's Compensation Act for death of her husband, the order of the circuit court, at the conclusion of its judgment, that it retained jurisdiction to enforce the judgment and in accordance with the statute, was unnecessary and useless, in view of section 19, par. "g," providing that the circuit court shall have power at any time on application to make judgment conform to any modification required by any subsequent decision of the Supreme Court on appeal, etc., but was harmless. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 411.] Error to Circuit Court, Cook County; Oscar M. Torrison, Judge. Wabash Railroad Company. He returned to the plant with the load of freight about half past 5, complaining to his foreman that he was suffering, and the latter sent him in a buggy, with another employé, to the office of the physician of the plaintiff in error, who made a superficial examination. Fitzgerald was then suffering from pain in his back and flinched upon the application of pressure to the lumbar region. From the physician's office he was taken to his home in the buggy. He ate no supper, but went immediately to bed. He was sick at his stomach, had severe running of the bowels, was in pain all night, and the next morning was spitting blood. His wife examined his body that Cent. Dig. §§ 20, 21; Dec. Dig. 18.] 6. MASTER AND SERVANT 411-WORKMEN's morning and found two bruises-one at the COMPENSATION ACT-HARMLESS ERROR-OR- right shoulder blade and the other on the DER RETAINING JURISDICTION. right side of the back, near the lower part of the spine. Both were black and yellow. He received no treatment, except that his wife rubbed his back with arnica, until the next day, which was Sunday, when a physi cian came, who found him suffering great pain in the right side of his chest, and on examination found two or three bruises-one on his back and another on the right shoulder blade. They were abrasions, and were red, but with no discoloration. There was another bruise near the spine on the right side a contusion which came from external means, which might have been a blow, a The defall, or other external violence. ceased was in severe pain from breathing. The doctor treated him for a fracture of the rib, and strapped the rib with adhesive straps, although afterward he found it was not broken. The doctor continued to visit him until his death, which occurred on Friday, March 20th. On Tuesday he developed pneumonia. The doctor testified that the cause of his death was traumatic pneumonia, brought on by an external injury to the lung. After the deceased left the stock yards on Friday, March 13th, he delivered his load and ate his lunch at about 1:30 o'clock with John Shugrue, another teamster, who testified that he ate a good, hearty dinner and his physical condition then seemed all right. After his lunch Fitzgerald went to the Wabash freight house, where he loaded his wagon with 31 cases of pork and beans in boxes weighing about 90 or 100 pounds, and 48 10-pound boxes. He was there about 30 minutes, and then left, and the next seen of him, so far as the record shows, was when he arrived at the stockyards in the evening. Proceedings under the Workmen's Compensation Act by Alice I. Fitzgerald, to obtain compensation for the death of her husband, Walter A. Fitzgerald, opposed by Armour & Co., the employer. Compensation. was awarded, the award of the Industrial Board affirmed by the circuit court, and to review the judgment of the circuit court the employer brings error. Judgment affirmed. Alfred R. Urion, Charles J. Faulkner, Jr., and Walter C. Kirk, all of Chicago, for plaintiff in error. Charles W. Lamborn and Edward McTiernan, both of Chicago, for defendants in error. DUNN, J. This writ of error was sued out to review the judgment of the circuit court of Cook county, which confirmed the finding and award of the Industrial Board of Illinois on the claim of Alice I. Fitzgerald, administratrix of the estate of Walter A. Fitzgerald, against the plaintiff in error, allowing her the sum of $3,500 in weekly installments on account of the death of the decedent, who was her husband. Walter A. Fitzgerald was employed by Armour & Co. as a teamster from December, 1912, until March, 1914. About 7 o'clock in the morning of March 13, 1914, he started in apparent good health, with his team, from the plant of plaintiff in error at the Union Stockyards, in Chicago, with a load for delivery downtown, and with orders to bring back a load from the freight house of the [1, 2] The burden rested upon the administratrix of showing that the decedent's death was caused by an accidental injury arising out of and in the course of his employment, and the plaintiff in error insists that there was no competent evidence showing such accident, and death as the result of it. There is no dispute as to the facts shown. They were stipulated for the most part, and the testimony of the witnesses as to those which were not stipulated was not contradicted in any way. No evidence was introduced by the plaintiff in error. We are authorized to examine the record for errors of law only. If there was evidence fairly tending to show that the decedent received injuries resulting in his death, arising out of and in the course of his employment by the plaintiff in error, the judgment of the circuit court must be affirmed. While there may be a serious question whether the evidence which has been stated tends to show that the deceased received any injury arising out of his employment resulting in his death, it is not necessary to discuss that question, because the verdict of a coroner's jury, rendered upon an inquest upon the body of the deceased, was introduced in evidence, which found that the deceased came to his death from traumatic pneumonia, and further stated: "We, the jury, are of the opinion that said traumatic pneumonia resulted from an injury received when he fell from an Armour & Co. wagon at the Wabash freight depot, located on Clark street, between Polk and Taylor streets, on March 13, 1914, at about 2 o'clock p. m." [3-5] It is insisted by counsel for the plaintiff in error that a coroner's verdict is not competent evidence in cases under the Workmen's Compensation Act, and, even if admissible, should not be allowed, under the circumstances of this case, to make out a prima facie case for the claimant. While in the view taken by the courts of many states the finding of a coroner or his jury is not admis sible in evidence on the trial of an issue as its judgment, ordered "that this court retain jurisdiction for the purpose of enforcing this judgment and in accordance with the statute in such case made and provided." The plaintiff in error contends that the court had no power to retain jurisdiction after the term, for the purpose of enforcing the order and judgment. The Workmen's Compensation Act, in paragraph "g" of section 19, provides that: "The circuit court shall have power at any time, upon application, to make any such judgment conform to any modification required by any subsequent decision of the Supreme Court upon appeal, or as the result of any subsequent proceedings for review as provided in this act." The order was unnecessary and useless, but it was harmless. The judgment of the circuit court will be affirmed. Judgment affirmed. (273 Ill. 479) THOMAS v. CITY OF CHICAGO. (No. 10614.) (Supreme Court of Illinois. June 22, 1916.) 1. APPEAL AND ERROR 1094(1)-REVIEWFINDINGS OF FACT-CONCLUSIVENESS. A finding of fact by the Appellate Court that the suspension of a civil service employé was in good faith and with no intent to violate the civil service law (Hurd's Rev. St. 1913, c. 24, §§ 446-485) is conclusive on appeal to the Supreme Court. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4322, 4323, 4352; Dec. Dig. 1094(1).] 2. MUNICIPAL CORPORATIONS PLOYÉS-REMOVAL-SUSPENSION. 218(1)-EM Under Hurd's Rev. St. 1913, c. 24, § 457, providing that no employé in classified service shall be removed except for cause upon written to suspend a subordinate for more than 30 days, charges, but not limiting the power of an officer and under section 4, authorizing rules to be made, held that Civil Service Rule 8, § 7, of the shall be the first to be laid off, does not control city of Chicago, providing that last employés the suspension or lay-off, of employés in good faith and for lack of funds. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 589, 598; Dec. Dig. 218(1).] Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; John Gibbons, Judge. Assumpsit by Michael A. Thomas against the City of Chicago. From a judgment of the Appellate Court reversing a judgment for plaintiff (194 Ill. App. 526) he appeals. Affirmed. We Clarence S. Darrow and Peter Sissman, both of Chicago, for appellant. Samuel A. Ettelson, Corp. Counsel, of Chicago (Leon Hornstein, of Chicago, of counsel), for appellee. CRAIG, C. J. Appellant, the plaintiff in the court below and hereafter referred to as the plaintiff, brought suit in assumpsit in the [6] The circuit court, at the conclusion of circuit court of Cook county against the city For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes There of Chicago for the amount of wages claimed | expected shrinkage in the revenues. to be due him for 29 days, from December were 43 sanitary inspectors, including the 3 to and including December 31, 1912, as a plaintiff. The plaintiff, by reason of the sanitary inspector of said city, which posi- date of his appointment and length of servtion he held by appointment, in accordance ice, was the ninth in order of appointment. with the requirements of the civil service The head of his department, in order to law applying to said city of Chicago. It accomplish the necessary saving in that dewas charged in the declaration that, at the partment, found it would be necessary to time of the appointment of the plaintiff and lay off approximately one-third of these inat the time he was laid off, there was in spectors. Instead, however, of laying off those force a rule of the civil service commission last appointed, as required by section 7 of of Chicago governing the method of lay-off rule 8 above set out if said rule had been of civil service employés, known as rule 8, followed, the head of the department laid section 7 of which is as follows: off the last seven who had been appointed, 31 days during October. Of the remaining 36 in the department, about one-third were laid off during the month of November, onethird during November and December, and the remaining one-third during portions of December and January-all for periods aggregating 29 days. It further appears that the force of sanitary inspectors was distributed, when all were working, by districts, so the entire city would be covered and all classes of business and places necessary to be inspected would be inspected, and the head of the department laid off the inspectors in such a manner that no part of the city was entirely neglected but a reduced force worked in each district. "Sec. 7. Lay-Off-Whenever it becomes necessary in any bureau, through lack of work or funds or for other cause, to reduce the force in any employment, the person working in such bureau who was last certified for such employment shall be the first laid off. Seniority of certification shall control in lay-off cases of employés transferred from one bureau to another or re-instated in the service. This section shall not apply to positions in the common labor service (class L), in which employés may be laid off without regard to seniority." It was further charged as grounds for plaintiff's claim that the defendant arbitrarily and without any resonable cause, and in disregard of the rule above set out, laid off and suspended the plaintiff from his employment for the period above mentioned and has refused to pay the plaintiff his compensation for said space of time; that, such suspension or laying off being wrongful, he was entitled to his wages for said period, although he did not work; that at the time the plaintiff was laid off the defendant retained in its employ, in positions of employment similar to the position held by the plaintiff, a large number of persons who were certified and appointed to such positions a long time after plaintiff was certified to his position. Issues were joined and a trial was had before the court, which found in favor of the plaintiff and assessed his damages at the sum of $93.55, and entered judgment against the city for that amount. Defendant prayed and was allowed an appeal to the Appellate Court for the First District, which court reversed the judgment of the circuit court with a finding of facts, which was, in substance, that the action of the city of Chicago and the head of the department of health of said city in laying off the plaintiff for a period of 29 days was taken in good faith and in the interest of economy and necessary retrenchment and in an honest effort to bring the expenses of the city of Chicago for the year 1912 within the revenues of the city for that year, and not for the purpose or with the intent to circumvent or evade any provision of the act to regulate civil service of cities or any rules of the civil service officers appointed suant to the provisions of that act. It was stipulated in the circuit court that this was a test case, involving the respective rights of the city and about 300 employés who claim to be in a similar situation as the plaintiff, and that the amount claimed by these employés is somewhere between $25,. 000 and $30,000. This fact, it seems, was considered in passing upon a motion for a certificate of importance, which was granted by the Appellate Court and pursuant to which an appeal was taken to this court. Counsel for the defendant contend that the statute gave the head of a department authority to lay off any subordinate for a period not exceeding 30 days; that the rule of the civil service commission, if construed so as to curtail this right, is contrary to law; that the rule was, in fact, observed both in letter and spirit; that an employé is not entitled to pay for the time he is not in the service of the city even if wrongfully laid off, and that a city has the right to lay off a civil service employé if it is done in good faith and in the interest of economy. Section 4 of the act to regulate the civil service of cities, which is in force in the defendant city, provides that the civil service commission shall make rules to carry out the purposes of the act, and for examinations, appointments, and removals in accordance with its provisions, and the commission may, from time to time, make changes in the origpur-inal rules. Hurd's Stat. 1913, c. 24, p. 402. Section 12 of the same act provides, among There is no dispute about the facts. It other things, that "nothing in this act shall appears that it became necessary during the limit the power of any officer to suspend a year 1912 to cut down the expenses of all de- subordinate for a resonable period, not ex entire Civil Service Act discloses that the only provisions of the act are in regard to appointments and to removals or discharge without cause. The provisions as to removals which are contained in section 12 provide that no official within the classified civil service of any city, who has been appointed under said rules and after the examination provided for in the act, shall be removed or discharged except for cause, upon written charges and an opportunity to be heard in his own defense, and further provide how such charges shall be investigated before the civil service commission and how its finding and decision are enforced. The precise quesThe precise question to be determined is whether, under section 12 of the act, the head of the department of health had the right to suspend the plaintiff, under the circumstances, for the period of 29 days, or whether any suspension or lay-off was absolutely controlled by section 7 of rule 8 adopted by the civil service commission as above set out. Civil Service Act, providing that no employé Without deciding whether the civil service commission had the power to adopt the rule in question and give it the force of law, we think it is clear that the rule does not apply to a suspension or lay-off not exceeding 30 days, when such suspension or lay-off is made in good faith and because of lack of funds, as was done in this case. The judgment of the Appellate Court will be affirmed. The language of section 12 is explicit and unambiguous. It provides squarely that "nothing in this act shall limit the power of any officer to suspend a subordinate for a reasonable period, not exceeding 30 days." It is contended by counsel for the appellant that this provision only refers to suspensions for cause, as enumerated in that section, and was clearly inserted for the purpose of enabling the head of a department to maintain necessary discipline and efficient service by temporarily suspending an employé, pending an investigation of charges preferred against him or while his case was being considered. While, undoubtedly, the head of the department would necessarily have the power to suspend a subordinate for these causes if the head of a department were to have any con-1. trol over such subordinate or anything to say about the management of his department, there are a great many causes, other than those given by counsel for appellant, which might make a suspension or lay-off of the employés of a department necessary. Can it reasonably be said, under the clear and exreasonably be said, under the clear and explicit language of the statute, that the head of the department has not the power to lay off employés under him for periods of less than 30 days for lack of work, lack of funds, or other good cause? [1, 2] The Appellate Court has made a finding of fact that the action of the head of the department was taken in good faith and in the interest of economy and necessary retrenchment and with no intent to circumvent or evade any provision of the civil service law, and this finding of fact is conclusive on this court. A different question would be presented if it appeared that the plaintiff had been suspended or laid off for the purpose of evading the provisions of the civil service evading the provisions of the civil service law. In Fitzsimmons v. O'Neill, 214 Ill. 494, 73 N. E. 797, we held that section 12 of the Judgment affirmed. (273 III. 452) PEOPLE ex rel. RYAN, County Collector, v. (Supreme Court of Illinois. June 22, 1916.) POSES. An item of $22,500 of a county tax "for the payment of fees and salaries and clerk hire of as being for more than one purpose and failing the various county officers" was not improper to designate the amount for each purpose separately, since there is no objection to levying a gross sum for several different purposes where the several purposes are embraced within the same general designation. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 497; Dec. Dig. 304.] 2. TAXATION 319(1) - ASSESSMENT - PAR TIAL LEGALITY. Where part of an assessment is illegal, and that which is legal can be separated from that which is illegal, judgment should be rendered only for that which is legal. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 527; Dec. Dig. 319(1).] 3. HIGHWAYS 139-ROAD AND BRIDGE TAX -MEETING OF COMMISSIONERS. the highway commissioners, shows a meeting of Where the record of a town clerk, clerk of the board of town auditors on the first Tuesday in September, and, on the same day, as part of the same record, the record of the action of the highway commissioners making a levy for road and bridge purposes, such record is sufficient. [Ed. Note.-For other cases, see Highways, Cent. Dig. § 393; Dec. Dig. 139.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |