1919 which was at least 15 months after Reichert's return to work- extending the time for filing the claim to 18 months The law applicable to the case when the accident happened was the law of 1917 (Hurd's Rev. St. 1917, c. 48), and under that act claim for compensation must be made withIn 6 months, and hence at the expiration of that time (no payment having been made under the provisions of the act,) unless there was a pending proceeding, the right to proceed thereafter for the claim must be held to be extinguished. Ohio Oil Co. v. Industrial Com, 293 Ill. 461, 127 N. E. 743. The law of 1919 could not be retroactive, under that decision, to revive a substantive right to the applicant's claim. If there had been a pending proceeding the situation would have been different, because then it might, perhaps, have been argued, as counsel for defendant in error seem to argue, that the law was simply a change in the procedure and would apply to pending litigation; but a new or amended act could not apply to revive a claim which had been wholly extinguished prior to its enactment, according to the law existing at the time of the new enactment, hence the applicant did not have the right to bring this action more than six months after the time of the alleged accident. Ohio Oil Co. v. Industrial Com., supra. As the arbitrator and the Industrial Commission were without jurisdiction to hear and pass upon the claim, the judgment of the circuit court must be reversed, and the record of the Industrial Commission quashed. Judgment reversed. GIERTZ v. SNYDER ET AL. (No. 14496.) 1. MASTER AND SERVANT INGS STATUTORY. COMPENSATION PROCEED Proceedings under the Workmen's Compensation Act are purely statutory and are governed by, and the rights of the parties are determined in accordance with, its provisions. (For other cases, see Master and Servant, Dec. Dig. § 394) 2 MASTER AND SERVANT BOND EXECUTED ON REVIEW OF AWARD OF COMPENSATION, SECURITY UNTIL FINAL DETERMINATION. Employer's bond, executed on application for writ of certiorari to review award for employee by the Industrial Commission under Workmen's Compensation Act, providing that such bond shall operate as a stay of the judgment or order of the circuit court, until the time shall have passed within which an application for a writ of error can be made, and until the Supreme Court has acted upon. the application for a writ of error after such application is made, held to secure payment of award until final determination of case by the Supreme Court on writ of error to review circuit court's judgment. (For other cases, see Master and Servtnt, Dec. Dig. § 417 [10] ) Appeal from Circuit Court, Logan County; Frank Lindley, Judge. deceased, against James I. Snyder and others. Judgment for plaintiff, and defendants appeal. Affirmed. Harold F. Trapp, of Lincoln, for appellants. FARMER, J. Albert H. Giertz, an employee of Snyder & Montgomery, received injuries in the line of his employment, from which he died July 17, 1919. His wife, as administratrix, filed a claim for compensation, and she was given an award of $8.41 per week for 416 weeks. Snyder & Montgomery sued out of the Logan county circuit a writ of certiorari to review the award. In order to obtain the writ, they gave bond in accordance with the provisions of the statute, with Ella F. Snyder, Katie R. Montgomery, Victor J. Ryan, A. F. Sturgis, and Lafayatte Boyer as sureties. At the hearing on the writ of certiorari, the circuit court quashed and set aside the award and rendered judgment against the adminstratrix for costs. She filed her petition in this court for a writ of error, which was granted, and, on consideration of the case, the judgment of the circuit court was reversed and set aside and judgment rendered in her favor in this court confirming the award of the Industrial Commission. Snyder v. Industrial Com., 297 Ill. 175, 130 N. E. 517. The defenses interposed to the award were that the injury to the employee did not arise out of or happen in the course of his employment; also that the death was not the result of the injury. No question of the validity of the statute or any provision of it was raised until a petition for a rehearing was filed in this court and in a short per curiam opinion denying a rehearing, it was held the employers had waived the right to question the validity of the statute. The award not being paid, the adminstratrix brought suit on the bond given by Snyder & Montgomery when they sued out the writ of certiorari. By their fourth plea to the declaration, defendants set up the judgment of the circuit court in favor of Snyder & Montgomery and alleged they did prosecute the suit successfully. By their fifth plea they averred that the bond was given under the requirements of a stitute which was unconstitutional and void, as being in violation of the fourteenth amendment to the Constitution of the United States and of the Constitution of the state of Illincis. The circuit court sustained demurrers to those pleas, and defendants elected to stand by them. Evidence was heard under issues made by other pleas and judgment was renderd in favor of plaintiff. Defendants have prosecuted this appeal to this court on the ground that the constitutionality of a statute is involved. As to the fourth plea, counsel argues bonds are construed strictly in favor of the sureties; that the understanding of the principals was that they would prosecute the suit in the circuit court successfully or the obligors would pay any judgment and costs awarded against the principals; that Snyder & Montgomery did prosecute the suit successfully and no judgment was rendered against them in that court, but a judgment was rendered in their favor for costs against the plaintiff in this action. He further argues that the writ of error sued out of this court by plaintiff was the beginning of a new suit and not a continuation of the suit in the circuit court. [1, 2] Proceedings under the Workmen's Compensation Act (Hurd's Rev. St. 1921, c. 48, §§ 126-152i) are purely statutory and are governed by, and the rights of parties determined in accordance with its provisions. No writ of certiorari shall issue at the instance of one against whom an award for the payment of money has been made, unless such party shall give a bond in an amount fixed by a member of the Industrial Commission and approved by the clerk of the court, "conditioned that, if he shall not successfully prosecute said writ, he will pay the said award and the costs of the proceedings in said court." The statute further provides that the bond shall operate as a stay of the judgment or order of the circuit court until the time shall have passed within which an application for a 2 Vol. X-Comp. writ of error can be made until the Supreme Court has acted upon the application for a writ of error, if such application is made," while langvage might have been used which would have more clearly expressed the legislative intent, it seems reasonably clear that the intention was the bond should be security for the payment of the award until the case is finally determined. This is the first time this question has been presented to this court and we are not referred to any decision of any other state where this question has been decided. The reasoning in Baum v. Industrial Com., 288 Ill. 516, 123 N. E. 625, 6 A. L. R. 1242, is not directly in point but tends to support that view. When the entire act, its scope and purpose are considered, it would seem to be the reasonable intent and meaning that, if an award of compensation is made an injured employee, and the employer desires a court review, the bond required to be given is to protect the employee until the final adjudication of the rights of the parties. The rule contended for by defendants that the writ of error is a new suit can have no application, for it is a continuation of the suit until its final determination. This court reversed, set aside and annulled the judgment of the circuit court. It had the right and power to remand the case to that court with directions to enter judgment for the award, but to avoid delay and costs judgment was entered here. To hold the bond was discharged by the judgment of the circuit court would seem to seriously impair the protection and benefits the act was intended to secure and would, in our opinion, be contrary to the legislature intent. [3] The ground upon which the constitutionality of the statute is attacked is that, as in force at the time the proceeding or compensation, was had, it permitted a review of the decision of the Industrial Commission on questions of law only, and made the decision of the Industrial Commission final on questions of fact, if there was any competent evidence to support it. Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S, 287, 40 Sup. Ct. 527, 64 L. Ed. 908, is relied upon, also authorities that a bond given under the requirements of an unconstitutional statute is void and cannot be made the basis of a recovery. It may be well to observe that Snyder & Montgomery were not denied any right defendants now claim was guaranteed them by the Constitution. They do not claim they were and the fact is they were not, denied the right to introduce and have considered all the testimony they desired on the hearing before the arbitrator and the Industrial Commission. It appears, from the opinion of this court, that the evidence of their defenses was heard and considered, and this court said all the evidence conclusively showed the employee was injured while at work in his employers' building, and warranted the finding of the Commission that the injury was the cause of death. The judgment of this court was not based on the fact that the evidence was conflicting and that there was some competent evidence to support the award. Before Snyder & Montgomery could assail the constitutionality of the statute they must show their rights had been infirnged by enforcement of the alleged invalid provision. Public Utilities Com. v. Chicago & West Towns Railway Co., 275 III. 555, 114 N. E. 325, Ann. Cas. 1917C. 50; People v. Olsen, 215 III. 620, 74 N. E. 785; New York Central Railrotd Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629. In the view we take of the case it is not necessary to pass on the validity of the statute. Defendants say in their brief, "It is not contended that an action will not lie against Snyder & Montgomery personally on said award," but that the sureties may interpose as a defense to the action that the statute is unconstitutional and the bond without consideration and void. [4] Moses y. Royal Indemnity Co., 276 Ill. 177, 114 N. E. 554, was a suit on a bond, given pursuant to the provisions of section 23 of the Municipal Court Act, to stay execution on a judgment until it could be reviewed on a writ of error sued out of the Appellate Court. The surety interposed the defense that section 23 was unconstitutional, and the bond was therefore without consideration and void. This court held it was unneces sary to determine whether the statute wts valid or not; that the consideration for the bond was the stay of the execution, and the obligor received the benefit of the consideration; that the bond was voluntarily executed upon a sufficient legal consideration. Among the authorities cited in support of that conclusion is Daniels v. Tearney, 102 U. S. 415, 26 L. Ed. 187. In that case a bond was given in West Virginia pursuant to a statute and ordinance of secession, that until otherwise provided by law, no execution should be issued except in favor of the commonwealth against nonresidents and no sales made under decrees without the consent of the parties interested. Where an execution was in the hands of an officer, if the debtor gave bond and security for the payment of the debt, interest, and costs, there should be no sale until the operation of the ordinance ceased. The court held the act was in violation of the Constitution and that the bond, as a statutory instrument, was of no more validity than the statute, but the court held, where the bond is voluntarily entered into and the principal enjoys the benefits it was intended to secure, it is too late to raise the question of its validity. The court said: "The principle of estoppel thus applied has its foundation in a wise and salutary policy. It is a measure of repose. It promotes fair dealing. It cannot be made an instrument of wrong or oppression, and it often gives triumph to right and justice where nothing else known to our jurisprudence can by its operation secure those ends. Not to apply the principle of estopped to the bond in this case would, it seems to us, involve a mockery in judicial administration and a violation of the plainest principles of reason and justice." * If, as counsel concedes, the award is a valid liability against the principals on the bond, we are unable to see any distinction between that case and the one under consideration. In our opinion the circuit court did not err in sustaining demurrers to the fourth and fifth pleas and redering judgment for plaintiff, and the judgment is affirmed. Judgment affirmed. KELLER v. INDUSTRIAL COMMISSION ET AL. (No. 14432.) (Supreme Court of Illinois. April 19, 1922) 135 Northeastern Reporter, 98 1 MASTER AND SERVANT CIRCUIT COURT EMPOWERED BY COMPENSATION LAW TO REVIEW FACTS AS WELL AS LAW. In reviewing an award in Workmen's compensation case, the circuit court porceeds under the law as it existed at time of review, empowering it to review the facts as well as the law. (For other cases, see Master and Servant, Dec. Dig. § 417 [1] ) 2. MASTER AN SERVANT FINDING OF FACT IN COMPENSATION PROCEEDING ENTITLED TO WEIGHT In reviewing the facts on appeal from judgment of circuit court confirming award of Industrial Commission in workmen's compensation proceeding, the Supreme Court will give great weight to the finding of the Industrial Commission, and will not reverse the decision of the commis sion on a review of the facts, unless the decision is against the manifest weight of the evidence. (For other cases, see Master and Servant, Dec. Dig. § 418 [6]) 3. MASTER AND SERVANT JURY COMPENSABLE. DISEASE AGGRAVATED BY IN The compensation may be awarded for an injury, although there is a pre-existing disease, if the disease is aggravated and accelerated by such injury, but will not be awarded, if the disability is due solely to a preexisting disease and would have arisen regardless of the injury. (For other cases, see Master and Servant, Dec. Dig. & 376 [2] ) 4. MASTER AND SERVANT - FINDING OF COMPENSABLE INJURY CAUSING BLINDNESS HELD UNWARRANTED In proceedings under Workmen's Compensation Act (Hurd's Rev. St. 1921, c. 48 §§ 126-152i) for compensation for loss of one eye and partial loss of other eye, involving issue as to whether the disability was due to injuries sustained when 600-pound chunk of coal fell on defendant's head and fractured his skull, as claimed by the employee, or was the result of syphilis as claimed by the employer, evidence held not to sustain award for employee. (For other cases, see Master and Servant, Dec. Dig. § 405 [4] ) Error to circuit court, Montgomery County; Thomas M. Jett, Judge. Proceedings under Workmen's Compensation Act by Patrick Kinney for compensation for injuries, opposed by T. C. Keller, receiver, employer. Award for employee by the Industrial Commission was confirmed by the circuit court, and the employer brings error. Reversed and remanded, with directions. Hill & Bullington, for plaintiff in error. A. W. Kerr and Sam Gilbert, both of Chicago, for defendant in error THOMPSON, J. May 1, 1918, Patrick Kinney, defendant in error, was injured by a fall of coal in the mine of plaintiff in error, May 29, 1919, the arbitrator before whom the evidence was taken found that deferdant in error was entilted to receive compensation for two days temporary total disability, and that he was entitled to the further sum of $15 a week for 133 1-3 weeks for the reason that the injuries sustained caused the permanent and complete loss of the sight of his right eye and the permanent loss of one-third of the sight of his left eye. On review the Industrial Commission heard further testimony of defendant in error and received a written report of an examination made by its medical director. It confirmed the decision of the arbitrator and entered an award accordingly September 6, 1921, on review before the circuit court of Montgomery county a judgment was entered confirming this award. [1, 2] Under the law in force at the time this cause was reviewed by the circuit court it had the power and it was proper for it to revicw the facts as well as the law. Otis Elevator Co. v. Industrial Com., 302 Il 90, 134 N. E. 19; Chicago & Western Indiana Railroad Co. v. Guthrie, 192 III. 579, 61 N. E. 658. In reviewing the facts this court will give great weight to the finding of the Industrial Commission, which is qualified by experience and special study to weigh the facts and circumstances applicable to cases within its jurisdiction. Where the Industrial Commission sees and hears the witnesses testify, we will give to its finding the same weight that we give to the finding of other administrative commissions, and will not reverse the decision of the Industrial Commission on a review of the facts, unless its decision is against the manifest weight of the evidence. Public Utilities Com. v. Springfield Gas |