the county clerk shall at once notify the | gether with an estimate of the cost of such state highway commission of such intention. improvement, all of which shall have been [1, 2] There was no attempt to comply approved by the state highway commission. with any one of said sections by the county board of Du Page county, and such was not necessary. The Roads and Bridges Act clearly provides for two methods of letting contracts for the building of state aid roads. Under the general method prescribed by the Roads and Bridges Act, the department of public works and buildings, under section 26, is to advertise and let the contracts for the state aid roads therein provided, and the sections above named are only applicable to the contracts so let, and were enacted for the special purpose of binding both the state and the county to pay for such roads so let, one-half by the state and one-half by the county. Section 15d is a special act or addition to the Roads and Bridges Act (Smith-Hurd Rev. St. 1923, c. 121, § 19), enacted for the purpose of authorizing any county to build or let contracts for building state aid roads in such county, and such section provides the whole method therefor without reference to the other sections above referred to. This section as passed in 1915 and amended in 1917 provides that in case any county desired to construct or improve highway se lected as state aid roads more rapidly than its allotment of state aid roads money would permit, such county might advance the entire cost of such improvement or construction and take the necessary steps to construct and improve the same, and if such roads were constructed "under, and in accordance with, plans, specifications, estimates of cost and contracts approved by the state highway commission," and were found, "upon inspection of the state highway engineer, to have been completed as provided for in said contracts," the allotment of money made thereafter by the state might be applied on the payment of any bonds or other obligations which might have been issued to meet the cost of such improvement or construction, to the extent of not more than one-half the cost of such improvement or construction. The section then provided that the county might issue bonds if the voters at a general or special election gave their consent to raise money to so improve or construct such roads, and gave a form of ballot to be used in voting for or against the bonds. It also authorized the county board to submit a proposition to the voters of the county for the levying of an additional tax to pay for the bonds, and gave a form of ballot for that vote. The act further provided that the county board of such county, before adopting a resolution to submit such questions to a vote, shall adopt a resolution specifying the particular roads to be improved, the type of improvement to be made on each section of such roads, the proposed width of the paved and graded roadway, to The county board in this case had complied literally with this last provision before having the proposition of issuing the bonds submitted to a vote of the people, and it did all that it was required to do before having the bond issue voted upon and also the special tax voted upon. It was then authorized to sell bonds, as it did do, to raise money to build the roads. After raising the money it is then authorized to build the roads, and when it has let the contracts and has built the roads it will be entitled to receive allotments of money from the state, to be applied on the payment of the bonds to meet the cost of such improvement or construction to the extent of not more than one-half the cost thereof, provided that such roads be constructed "under, and in accordance with, plans, specifications, estimates of costs and contracts approved by the state highway commission," and are found, "upon inspection of the state highway engineer, to have been completed as provided for in said contracts." The contracts, under this section, are clearly to be let by the county, but the state reserves the right to have the contracts completed according to specifications and plans of its own suggestion and within its estimates of costs before it will recognize any obligation to contribute one-half the cost thereof. All these plans, specifications, and estimates by the state highway commission may be furnished at the time of the letting of the contract for the building of the roads, but they are not conditions precedent to a vote for bonds and for levying a special tax. [3] It does not seem to us to require any further discussion of or comment upon the provisions of section 15d to show that sections 18, 20, 21, 22, and 24 are not applicable to the procedure for the construction of roads by a county as provided in section 15d, and that the latter section is rather a special or particular provision for the construction of state aid roads by a county, added to the general provisions for the construction of such roads by the state. It is a well-settled rule of construction that where there are two provisions, one of which is general, and designed to apply to cases generally, and another is particular, and relates only to one subject, the particular provision must prevail and must be treated as an exception to the general provision. Dahnke v. People, 168 Ill. 102, 48 N. E. 137, 39 L. R. A, 197. [4,5] We do not think that appellant's contention that the election being opened one hour earlier, and closed two hours earlier than it should have been, furnishes any ground for sustaining its bill for injunction, even if the election law of 1872 (Laws 187172, p. 380) does apply to this special election as to the opening and closing of the polls. There is no allegation in the bill, and no (145 N.E.) proof was offered to the effect that any legal voter was deprived of his right to vote because of such election opening and closing at the hours aforesaid. The election notice was in full compliance with the law in all other particulars. The authorities are to the effect that where the great body of the electors have actual notice of the time and place of the holding of an election and of the questions submitted, the election notice is sufficient, and particularly where no prejudice is shown. 9 R. C. L. 991, 992. On page 1107 of the volume of R. C. L. just cited it is said: expect the polls to close at 7 o'clock p. m. and that complainant is not prejudiced by the fact that they were not so closed or that they were opened an hour earlier than the old law prescribes. [6] The objection that although the voters of Du Page county approved and voted for the bonds in question they did so only upon the theory that the state would reimburse the county for one-half thereof, and that there is no legal obligation upon the state to do this, we consider without merit. The law provides for such reimbursement, and while it is true that such obligation cannot "Ordinarily a provision as to the time of open-be enforced legally against the state, yet ing and closing of the polls is considered directory, on the general principle that a statute is to be regarded as directory if the directions given to accomplish a particular end may be violated and yet the given end be, in fact, accomplished and the merits of the case unaffected. The particular hour of the day in the case of an election is not of the essence of the thing required to be done, and where the law fixes the opening and closing of the polls at sunrise and sunset, the election should not be invalidated because the polls were closed a few minutes before or were kept open a few minutes after sundown." It is said on page 1108 of the same volume that, even where the polling place in one precinct was not open at all and no election held, that of itself did not invalidate the election held in the county, unless it was made to appear that the general result was changed, and that the burden of showing that the result was changed lies upon the person contesting the result of the election. It is again said on page 993 that whether or not any failure to comply with a provision of an election law shall invalidate an election depends upon the character of the irregularity or defect or the special circumstances surrounding the election. In the case now in hand the election was held under the Australian ballot law (Smith-Hurd's Rev. St. 1923, c. 46, § 288 et seq.), and the people of this state have been acquainted with that law for many years and know the time of the opening and closing of the polls under we must assume good faith upon the part of the state, and cannot hold the county bond issued bad on the theory that voters acted in reliance upon an obligation that the state would repudiate. Illinois is not, a state that repudiates its obligations. The judgment of the circuit court is affirmed. Judgment affirmed. KARESKE'S CASE. (Supreme Judicial Court of Massachusetts. Worcester. Nov. 8, 1924.) I. Master and servant 416-Agreement with final determination of all issues involved in es- St. 1923, c. 125, stating that failure to make claim shall not bar proceedings if insurer has executed agreement in regard to compensation, is not applicable to accident occurring before its passing. 3. Master and servant 398-Statute as to effect of agreement as barring defense of lack of claim includes agreement not approved. that law. The election law of 1872 is rarely ever in use in any election wherein the polls are to be opened at 8 o'clock a, m, and closed at 7 p. m. We think this case should be St. 1923, c. 125, stating failure to make governed by the rule announced in Cleland v. Porter, 74 Ill. 76, 24 Am. Rep. 273, and that executed agreement, gives such effect to agreeclaim shall not bar proceedings if insurer has before the people should be deprived entire-ment which has not been approved. ly of the result of this election it was incumbent upon the complainant to allege in 4. Master and servant its bill facts that would show or tend to show that the election would have been otherwise, had the law of 1872 been followed. The natural presumption is that the people of Du Page county, who have been voting so long under the Australian ballot law and Appeal from Superior Court, Worcester within the hours prescribed thereby, did not County; Stanley E. Qua, Judge. 398-Knowledge of injury to insurer inferable from agreement as to compensation. from fact that insurer entered into agreement Knowledge of injury was properly inferred in regard to compensation. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Proceeding under the Workmen's Com- [ ber 14, 1922, and January 29, 1923, and was pensation Act between Joseph Kareske, the in the City Hospital from November 14 to employee, the Worcester Gaslight Company, the employer, and the Employers' Liability Assurance Corporation, Limited, of London, England, insurance carrier. From a decree awarding compensation, insurance carrier appeals. Affirmed. C. C. Milton and F. L. Riley, both of Worcester, for insurer. E. A. D. Moss, of Worcester, for employee. December 22 where he was operated on for double hernia. By virtue of the agreement, compensation was paid by the insurer up to February 2, 1923. The agreement was approved by the board on February 15, 1923. After returning on January 29, Kareske con tinued to work for the gas company till June 16, 1923, when he was discharged. During this period he was not at his former work, and was paid $24 per week. He went to work again on August 6, in a Polish grocery store, where he was paid in goods worth $18 a week, but received no money. A hearing was had before a single member of the Industrial Accident Board on October 17, WAIT, J. On January 17, 1923, Joseph Kareske and "the Employers' Liability Assurance Corporation, Limited, of London, Eng.," executed a written agreement for compensation under the Workmen's Compensation Act. It recited that the agree-1923. The record does not disclose how this ment was "in regard to compensation for hearing was brought about, but the report the injury sustained by said employee while of the member sets out that the questions in the employ of Worcester Gas Light Com- before him were (1) whether Kareske receivpany, Worcester"; gave as the date of ac- ed an injury arising out of and in the course cident "Nov. 14, 1922"; the place "Steam" of his employment; (2) notice; and (3) in(meaning the boiler room); the nature capacity. Evidence was presented upon all these points. The member found that Ka"Hernia"; the cause of injury "Lifting an ash car"; and stated that there was no oth-reske was not intoxicated; that the agreeer ground or cause of claim. It stated as the terms of agreement: "To be paid $16.00 (which it is agreed is twothirds (%) of my average weekly earnings week during total disability which it is estimated will be weeks, and to be paid $ per week for weeks for loss of It is hereby agreed that I have suffered no permanent loss of use of any member of my body as a result of the above accident, except as above stated." ment stands; that there was an early recurrence of the hernia which caused inability to get work after June 16, 1923; that his wages then were $24 weekly; that reapersonable efforts were made to obtain work, and that from August 6, he was at work with an earning capacity of $18 per week. He found Kareske entitled to total disability payment of $16 a week from June 16 to August 6, 1923, and to payment for partial disability at $7.84 per week (two-thirds of the difference between $29.76 and $18) from A report was filed with the board by the August 7 to the date of the hearing; this employer on December 6, 1922, which in compensation for partial incapacity to con"Sec. C, Injured Person," described the in- tinue in accordance with the act. He furjured employee as J. Kareske, an ashman, ther found that the employer had knowla regular time worker in the steam depart- edge of the injury. The insurer claimed a ment, with average weekly earnings of review. The Industrial Accident Board $29.75, and which in "Sec. D, Cause," stated, stated the question raised as, "Incapacity," under "Describe fully how injury occurred: reciting, however, that the insurer raised "J. Kareske was found intoxicated at 2:30 questions of notice and whether the injury m. He was in a tunnel underneath the arose out of and in the course of the employHeine Boilers. Foreman Belcher told Mr. Ol-ment. The board affirmed and adopted the sen, engineer, to send him home. Mr. Olsen findings of the single member on the question did so. J. Kareske was asleep when found. of incapacity, and found there was due the Few days later man's son came in to office and said his father was in hospital. When seen employee, $136.64 to the date of hearing, by Mr. Clark, man had been operated on for and thereafter a weekly compensation of double hernia. This report is made out just $7.84 in accordance with the provisions of for a record." the statute. The board ruled that because of the agreement, the question whether the injury arose out of and in the course of the employment was not open, and it disregarded all evidence on this point. It found that the insurer had knowledge of the injury, making this finding as the reasonable inference from the fact of the execution of the agreement for compensation in which they agreed upon the time, place, and cause of the injury. A majority of the board also ruled and found that having entered into the agreement which had been duly ap a. It further reported the man to be at the City Hospital, and the probable duration of his disability to be unknown. A supplemental report was filed on January 29, 1923. stating that no incapacity resulted, and that Kareske had returned to work on January 29, 1923, as laborer at $29.75 a week. A claim for compensation was filed with the board on January 4, 1923, and on February 23, 1923. There was no dispute that Kareske was out of work between Novem (145 N.E.) proved, the insurer was not at liberty to agreement filed with the department of inraise the question of notice. A decree was entered in the superior court that Kareske was an employee under the Compensation Act at the time of the injury; that the injury arose out of and in the course of his employment; and that compensation was due him to December 6, 1923, in the sum of $136.64 and thereafter a weekly compensation of $7.84 in accordance with the provisions of the statute. From this decree the insurer appeals. [1] The fundamental question presented by this appeal is the effect to be given to an agreement with regard to compensation, a memorandum of which has been filed with the department of industrial accidents and approved by it, but which has never been presented to the superior court for the entry of a decree. A majority of the Industrial Accident Board has ruled, in substance, that it stands like a decision of a single member which the parties have not sought to have reviewed; that it is a final determination of all issues involved in the establishment of the right to compensation; that, as in the case of every other determination, whether or not embodied in a decree, the board has jurisdiction to modify the award of compensation as changes take place in the condition of the injured employee. G. L. c. 152, § 12. Bartoni's Case, 225 Mass. 349, 354, 114 N. E. 663, L. R. A. 1917E, 765; Hurley's Case, 235 Mass. 387, 126 N. E. 775; Sonia's Case, 234 Mass. 475, 125 N. E. 574; Frizzi's Case, 237 Mass. 460, 130 N. E. 95; Emma's Case, 242 Mass. 408, 136 N. E. 125; Johnson's Case, 242 Mass. 489, 136 N. E. 563, but the basic questions of liability under the law are not open for further consideration or different determination. The Workmen's Compensation Act, where an employee in the occupations to which it applies is injured in the course of his employment from a cause arising out of the employment, substitutes for the rights of action and grounds of liability given by earlier statutes, and by the common law, a system of weekly payments based upon the loss of wages resulting from the injury. Devine's Case, 236 Mass. 508, 592, 593, 129 N. E. 414. It enforces performance of the obligation which it establishes by a decree of the superior court (G. L. c. 152, § 11), and it prescribes the process by which a party can become entitled to a decree (G. L. c. 152, $$ 6-11). It contemplates two courses of procedure by which an enforceable obligation may be established. One, G. L. c. 152, §§ 6, 7, 11, by a voluntary accord between the parties upon the facts of liability, extent of incapacity, and quantum of compensation; the other, G. L. c. 152, §§ 7-10, inclusive, by adversary proceedings in the course of which liability, incapacity, and compensation are determined by a tribunal. The first results in a memorandum of the dustrial accidents and approved by it; the second in a decision by a board member, or by a reviewing board, on a review of the decision of the member. Either forms the basis for a decree of the superior court. The act seeks a procedure "as simple and summary as may be." G. L. c. 152, § 5. It leaves to the parties to decide for themselves whether to proceed by amicable arrangement or by adversary proceedings. If the parties proceed by way of negotiation they must file a memorandum of the agreement reached, whether that agreement be oral or in writing, with the department of Industrial Accidents, and they must obtain the department's approval of the agreement. That approval can be given only when the terms of the agreement conform to the law. G. L. c. 152, § 6. Either party can then present the memorandum of agreement, so approved, to the superior court and ask that it be embodied in a decree. G. L. c. 152, § 11. The matter is ripe for decree upon the approval of the agreement by the department. Where the parties begin by adversary proceedings, a hearing is had before a single member of the board who hears the evidence, decides facts and law, and, in a proper case, makes an order in regard to compensation. If either party is dissatisfied he can ask a review of the single member's findings and rulings by a reviewing board. G. L. c. 152, §§ 8, 10. At the stage when a decision has been made by the single member which neither party cares to. ask to have reviewed, or where in case review has been obtained, a decision is made by the reviewing board, the adversary proceedings are ripe for a decree; and, as in the case of the nonadversary procedure, either party may present the papers to the superior court and ask for a decree. The agreement, order, or decision is not of itself a decree. Johnson's Case, 242 Mass. 489, 493, 136 N. E. 563. When the case has reached the stage that it is ripe for a decree, either by adversary or nonadversary proceedings, the question open for the superior court is whether the order, decision, or agreement presented will support a decree consonant with the law. Johnson's Case, supra. The statute, G. L. c. 152, § 11, says that the "court shall render a decree in accordance therewith" (i. e., with the agreement, order, or decision), and this has been held to mean in accordance with the law applicable to the facts presented by the papers. McNicol's Case, 215 Mass. 497, 501, 120 N. E. 697, L. R. A. 1916A, 306; Doherty's Case, 222 Mass. 98, 109 N. E. 887; Keohane's Case, 232 Mass. 487, 122 N. E. 573; Bell's Case, 238 Mass. 46, 130 N. E. 67; Chisholm's Case, 238 Mass. 412, 131 N. E. 161; Johnson's Case, 242 Mass. 489, 136 N. E. 563; Emma's Case, 242 Mass. 408, 136 N. E. 125; Gillard's Case, 244 Mass. 47, 138 N. E. The Industrial Accident Board was right in stating the question open on the second proceeding to be "Incapacity"; and the ruling of the majority was correct in holding that having gone to an approved agreement the insurer could not now raise a question of notice of the accident. 384. The superior court, therefore, before en- [ in the statute requires a party to take out tering a decree, has the duty of framing the a decree. It was here unnecessary. The decree and of satisfying itself that the decree insurer paid what was agreed; and it ought so framed complies with the law. It must not now to be able to raise any question it hear the parties, but it cannot revise findings then forebore to litigate. of fact for which there is any legal basis in the evidence and papers submitted. Doherty's Case, 222 Mass. 98, 109 N. E. 887; Knight's Case, 231 Mass. 142, 120 N. E. 395; Weatherbee's Case, 231 Mass. 297, 120 N. E. 845; Sciola's Case, 236 Mass. 407, 128 N. E. 666. Where the evidence is set out, it is bound by the legal effect of the papers presented. When all that appears before it is a memorandum of an agreement approved by the department, the court is justified in assuming that the jurisdictional facts have been made out; that a claim has been filed, and that notice has been given, or that the occurrences which by law excuse proof of reasonable claim and notice have been shown; that the injured person was an employee of an insured employer and that the injury was received in the course of the employment and arose out of it. [2, 3] We do not understand that the ruling of the majority of the board rested in any way on St. 1923, c. 125. By that statute, failure to make a claim shall not bar proceedings if the insurer has executed an agreement in regard to compensation. The papers show that here claims were made in due season. The statute was not in force, however, when this accident occurred, and it is not applicable. Devine's Case, 236 Mass. 588, 129 N. E. 414; Walkden's Case, 237 Mass. 115, 129 N. E. 396; Lapan's Case, 237 Mass. 340, 129 N. E. 607. It is to be noted that the statute applies to a condition which does not occur in these proceedings, in that it gives to an agreement which has not been approved, effect to bar a defense of lack of claim. Barry's Case, 240 Mass. 409, 134 N. E. 259. Proceedings under the act, however, do not necessarily end with the decree or the right to ask for a decree. The statute contemplated that changes may take place which will require revision of an order for compensation; and it authorizes such revision (G. L. c. 152, §§ 7, 12). In the pro- It follows, also, from what has been here ceedings thereon it is obvious that all mat- stated that the question whether the inters concluded by the earlier proceedings jury arose out of and in the course of Kabetween these parties and not affected by reske's employment is not now open. The the changed conditions which lead to reearlier proceedings concluded that issue. vision should not again be offered. Hur-Hurley's Case, supra. The ruling of the ley's Case, 235 Mass. 387, 126 N, E. 775; Bartoni's Case, 225 Mass. 349, 114 N. E. 663, L. R. A. 1917E, 765. board was correct. [4] The board was clearly justified in finding that the insurer had knowledge of the inIn the case before us we have two pro- jury by inference from the agreement and ceedings, one culminating in the agreement what it stated. We have before us in the of January 17, 1923, the other resulting in papers, the evidence reported by the single this appeal. The first nonadversary, the member which covers the issues of knowlsecond adversary. The second involves a edge of the injury by insurer and employer further claim and arises under G. L. c. 152, and agent, and sets out all the facts upon § 12. So far as the questions of fact involv- which the superior court would have proed in the first proceeding are essential to ceeded had a decree been asked in the earthe determination of the second, they are lier phase of the case. An examination settled. Injury, liability, and compensation satisfies us that there was evidence to jushad been fixed. There was nothing in re-tify a finding of all essential facts in favor gard to them which was open to controversy of the employee in both proceedings. Brown's on an application for a decree. The mere Case, 228 Mass. 31, 116 N. E. 897. No confact that no decree was taken, we regard tention of fraud or mistake has been made. as immaterial. In the great majority of The decree ought not to be disturbed. cases no decree is in fact entered. Nothing Decree affirmed. |