the commission assuming jurisdiction of an action for damages for libel or slander, or one for money due to goods sold and delivered, or one for damages for negligence, or indeed, any proceeding other than one under the Workmen's Compensation, Insurance, and Safety Act, looking to the fixing and enforcement of compensation to an employee or to his dependents in the event of his death on account of injuries received by him in the course of his employment," the objection of lack of jurisdiction of the subject-matter may be urged collaterally. They also admit, as before stated, that a proceeding against the original contractor by an employee of a subcontractor, to obtain compensation for an injury received in the course of that employment, is not a lawful proceeding under said act, nor a proceeding authorized thereby. They therefore admit the error of their conclusion. The argument is comparable to the defense of the wet nurse in Marryatt's story of Mr. Midshipman Easy, who, when taxed by the austere and highly moral father of little Jack with being the mother of an illegitimate child and therefore unfit to suckle the child of such a father, answered by way of confession and avoidance, "But it was such a little one." Here, the award being for compensation to plaintiff for injuries received in the course of his employment, and the only departure from the authority of the commission being that it has avowedly charged such compensation to one who was not legally liable and could not lawfully or justly be made liable therefor, it is too small to be taken advantage of collaterally, although wholly unauthorized, as completely without authority of law as would have been an award of damages for libel. As if perceiving that the above-mentioned admission is a little awkward in its logical results, the majority opinion proceeds to endeavor to show that there was some semblance of jurisdiction in the commission when it made the award here in question. There was jurisdiction, they say, because the proceeding was "by an employee to obtain an award by the commission of the compensation provided" by the act for injuries accidentally received by the employee in the course of his employment. From this small premise it is argued that the commission is thereby given jurisdiction to make an award against any person from whom the employee sees fit to ask it, whether such person is the employer or not. Of course if this argument were good, this court could never, in any direct proceeding to review such award, have power to annul it; for, jurisdiction of the person being admitted, there would be jurisdiction of the subject-matter also, and, no other cause being set up, it would be only for lack of such jurisdiction that this court could, under the act, set aside an award. But the argument states only half the case. It is as if one of our superior courts should give judgment foreclosing a mortgage on land lying wholly outside of the state, and when the objection of want of jurisdiction of the subject-matter is made the plaintiff should answer that the superior court has jurisdiction of actions to foreclose mortgages on land. The obvious reply would be that the fact that land shall lie in this state is essential to the jurisdiction and that it is necessary to be included in any complete description of such jurisdiction. The application of the illustration is obvious. There is no question here of the failure of the complaint before the commission to state a valid claim under the act. It is not disputed that the claim was made against Janssen solely on the ground that he was the original contractor, and upon the theory, now known to be erroneous, that the act cast upon him in that character a liability to compensate the employee of a subcontractor under him. The record plainly shows on its face that this is the fact of the matter. Nor was it a mere lack of evidence to show that Janssen was the employer of the plaintiff. There never was a claim that he was such employer. Running through the majority opinion there is apparent an erroneous idea as to the nature of what is denominated a "collateral attack"the idea that it is some sort of proceeding to review the decision so attacked or objected to in the collateral suit. This is not in any sense true. When a judgment appears on its face to have been made by a tribunal having no power to act at all on the subject-matter thereof, it is, as Mr. Freeman says, "in legal effect, no judgment." "It neither binds nor bars any one." Freeman on Judgments, § 117. The objection may be raised at any time or place, in court or out of court. And when raised and sustained, no direct action upon the void judgment ensues in the sense that it is vacated, annulled, or reversed. It is merely excluded from consideration if the objection is made in court in a collateral action, or disregarded entirely if the objection is made by a party interested in the course of a business transaction out of court. In a trial in a justice's court an objection of this character can be made to a judgment of the superiof court, over whose judgments a justice's court can have no reviewing power whatever. The justice, nevertheless, has power to sustain the objection and exclude proof of the void judgment. And his ruling can itself be reviewed only on appeal to the superior court. Finally, it is said that section 21, article 20, of the Constitution, gives the Legislature power to provide this immunity of awards of the commission from question collaterally, even when they are upon matters not committed to the commission either by the Legislature or by the Constitution itself. The statement in that section that "the Legislature may provide for the settlement of any dispute arising under the legislation contemplated by this section," refers only to the preceding sentence wherein power is given to the Legislature to "create and enforce a liability on the part of employers to compensate their employees" for injuries arising out of and happening in the course of their employment. This section, therefore, does not contemplate any legislation allowing a liability for compensation to be created against persons not employers nor legislation providing that compensation awarded against persons not employers shall be immune from collateral attack, and that, though invalid for want of power if directly attacked, they immediately become valid and enforceable if such direct attack, for any reason, is not made within the short time allowed. Hence, whatever power the Legislature may have over such matters, it does not derive that power from this section, but obtains it from the general grant of legislative power found in article 4. But in my opinion it is entirely clear that the Legislature has made no attempt to exercise such power by any provision of the act under consideration. For these reasons I am of the opinion that the writ of mandate applied for should have been refused. We concur: Sloss, J.; Melvin, J. SUPREME COURT OF ILLINOIS. ILLINOIS CENT. R. CO. ข. INDUSTRIAL BOARD ET AL. (No. 12075.)* 1. MASTER AND SERVANT WORKMEN'N COMPENSATION ACTS-RIGHT TO COMPENSATION-FACT OF EMPLOYMENT. A workman who was instructed with the running of an electric motor for hauling switchmen through the yards, and was injured while so doing, was in the employ of the railroad, although he had not submitted to physical examination or been formally accepted as an employee, since such formalities could have been and were waived by putting the employee to work without observing them. (For other cases, see Master and Servant, Dec. Dig. § 361.) 2. COMMERCE - INTERSTATE COMMERCE WORKMEN'S COMPENSATION ACT. --- RAILROADS Question whether the servant is entitled to compensation, depending on whether he was engaged in interstate commerce when injured, is to be determined by the character of the work being done at the instant of injury. (For other cases, see Commerce, Dec. Dig. § 27[5].) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACTS-RIGHT TO COMPENSATION-BURDEN OF PROOF. The employing railroad, being engaged in both interstate and intrastate commerce, to relieve itself of the obligation to pay compensation under the Workmen's Compensation Act (Hurd's Rev. St. 1917. c. 48, * Decision rendered, June 20, 1918. 119 N. E. Rep. 920. §§ 126-152i), had the burden of showing that at the time of the injury the servant was actually engaged in interstate commerce. (For other cases, see Master and Servant, Dec. Dig. § 403.) · 4. COMMERCE - "INTERSTATE COMMERCE"-RAILROADS WORKMEN'S COMPENSATION ACT. A servant in switchyards operating a motor to carry switchmen back and forth, and injured while hauling switchmen who had been looking after cars of coal moving within the state, but because they belonged to the company subject to reconsignment to points without the state, was not engaged in interstate commerce. (For other cases, see Commerce, Dec. Dig. § 27[7].) (For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.) Error to Circuit Court, Marion County; James C. McBride, Judge. Proceedings by Lydia Webster, as administratrix of Claude F. Webster, deceased, for workmen's compensation, opposed by the Illinois Central Railroad Company, employer. The circuit court on writ of certiorari confirmed the award of the Industrial Board in favor of the claimant and certified the case to the Supreme Court. Judgment affirmed. Kagy & Vandervort, of Salem (W. W. Barr, of Carbondale, of counsel), for plaintiff in error. Noleman & Smith, of Centralia, for defendants in error. CARTWRIGHT, J. In January, 1916, the plaintiff in error, the Illinois Central Railroad Company, had a yard which was called the "south yard," near its station at Centralia. It was a yard on which cars moved by gravity, being brought at the south end to what was known as the "hump" and permitted to run north. into different classification tracks and switches. In order to control the cars by brakes switchmen rode them down from the hump to the north end, a distance of about 4,000 feet, where they were turned into the several classification tracks and switches. Each switchman managed from two to five cars, and those who rode cars down were carried back to the hump by a gasoline motor for another trip. Claude F. Webster was operating the gasoline motor for carrying switchmen the night of January 8 and 9, 1916, and at about 4:15 a. m., as he was going north on track 17 to bring back to the hump three switchmen who had ridden cars down to the north end, he ran into a bad order car standing on the track and was killed. His mother. Lydia Webster, who was administratrix of his estate, claimed compensation for his death under the Workmen's Compensation Act, and the plaintiff in error defended on the grounds, first, that Webster was not in its employ when killed; and, second, that if in its employ he was engaged at the time in interstate commerce. The Industrial Board awarded compensation, and on a writ of certiorari from the circuit court of Marion county the record was brought to that court and the decision of the board confirmed. The court certified that the case was one proper to be reviewed by this court. Claude F. Webster was employed in the freight office of the plaintiff in error in Centralia, and he had a brother, William Webster, who was employed in the south yard in the office of Frank E. Hatch, the trainmaster. William Webster asked the trainmaster if he would give his brother, Claude, a chance to run the motor, and Hatch said that he would provided Claude could hold it. Hatch, the trainmaster, and Don Carlyle, the yardmaster, had charge of the employment of the men who ran the motorcars. The conversation with Hatch was in December, 1915, and the rule of the plaintiff in error on employment required a written application on a printed form containing various questions, and it required a physical examination. Claude signed such an application for employment as motorman. On Thursday, January 6, 1916, Carlyle, the yardmaster, asked William Webster if his brother still wanted the position as motorman, and being told that he did, said that he should come down the next day. Claude reported at the south yard next morning, and Bert Stewart, yard clerk, who was running the motorcar as an extra man, was instructed by Carlyle to teach Claude to operate the motorcar. Stewart and Claude rode, and operated the motorcar all day Friday on track 17 from the hump to the north end; Stewart giving Claude instructions as to operating it. On Saturday Carlyle asked William Webster if his brother was fixed up and ready to go to work. William said that he was ready and was 4old that Claude should show up for work that night. Accordingly on Saturday night Claude reported for work at about 7:15, and from that time until the accident in the morning he ran the car the greater part of the time, Stewart would get on the car and run it for two or three trips and then Claude would run it two or three trips alone until about 11 o'clock, after which time. Claude would run the car about three-quarters of an hour, taking 8 or 10 minutes for a trip the full length of the yard, and then Stewart would get on the car and make two or three trips with him. The last time Stewart got on the car was about 3:15 or 3:30 in the morning, when he made three trips and left the car in charge of Claude. After that Claude operated the car until the accident at 4:15. There had been no physical examination as required by the written application, and no acceptance had been indorsed or written upon it. William Webster showed the application to W. R. Clements, who was employed in the office of the trainmaster, Hatch, and said that it was all ready but the physical examination, and Clements said that he did not know that that would make any difference, because he understood they were going to transfer him from one department to another. [1] The basis of the claim that Claude F. Webster was not in the employ of the plaintiff in error while running the motorcar for it is that there had been no physical examination or acceptance of the application by the proper authority, and that he was only learning to operate the car. The claim that he was only learning |