act, under which the cause of action was brought, provided such actions should be commenced within two years after the death. That act was amended by an act approved May 13, 1903, in force July 1, 1903, which reduced the time within which such actions should be brought to one year, and the question is whether the act as amended applied to this cause of action. If the time fixed within which an action under the Injuries act is to be considered as a statute of limitations the amended act would not apply, for such a statute will be given a prospective effect unless there appears a clear intention to the contrary, and then only where reasonable time is allowed in which to enforce existing rights. (2 Lewis' Sutherland on Stat. Const. secs. 706, 707; 17 R. C. L. 676, 682, 683.)

At common law no right of action existed in anyone to maintain an action against any person or corporation causing the death of another by any wrongful act, neglect or default. A right of action for such causes was given by our Injuries act, which was adopted in 1853, and which for the first time in this State created such cause of action and provided in whose name the suit should be brought and how any money recovered should be distributed. The act fixed the time within which such an action should be brought at two years after the death. Similar statutes are in force, we believe, in all the States of the Union, and the question whether the time fixed by the statute for bringing such actions is a statute of limitations has been passed upon by many courts, and it has generally, if not universally, been held that the statute creates a new liability unknown to the common law, fixes a time within which the action may be commenced, and is not a statute of limitations; that the time fixed for commencing the cause of action created by the statute is a condition of the liability, and operates as a limitation of the liability itself and not of the remedy, alone. The Harrisburg, 119 U. S. 199; Rodman v. Missouri Pacific Railway Co. (Kan.) 59 L. R. A. 704; Partee

v. St. Louis and San Francisco Railroad Co. 123 C. C. A. 292; 51 L. R. A. (N. S.) 721; Gulledge v. Seaboard Airline Railroad Co. (N. C.) 125 Am. St. Rep. 544; 8 R. C. L. 801-805; 8 Am. & Eng. Ency. of Law, 875.

In Spaulding v. White, 173 Ill. 127, this court considered the question whether the amendatory act of 1895, fixing the time within which a bill might be filed to contest a will at two years instead of three years, (the time allowed by the former act,) applied to cases where wills had been probated prior to the amendment. In that case the will had been admitted to probate March 29, 1894, and a bill was filed to contest it in March, 1897. When the will was admitted to probate the statute gave three years' time in which to file a bill to contest it, and the bill was filed within three years from the probate of the will. The amendment of 1895 reduced the time to two years, and if the amended act applied the bill was not filed within the time limited. The court said, in substance, that the jurisdiction to entertain a bill to contest a will was derived exclusively from the statute and could be exercised only in the manner and under the limitations prescribed by the statute, and that the time allowed for filing such a bill is not a limitation law. The court said: "There is a material distinction between a statute conferring jurisdiction and fixing a time within which it may be exercised, and a statute of limitations." That case was followed and its reasoning adopted in Sharp v. Sharp, 213 Ill. 332.

We are referred by plaintiff's counsel to Hathaway v. Merchants' Loan and Trust Co. 218 Ill. 580. That case held that the amendment of 1903 to section 70 of the Administration act, reducing the time for filing claims to one year, did not apply to claims against an estate upon which letters testamentary had been granted before the amendatory act took effect. The right of action in that case was based upon promissory notes given by the deceased in his lifetime and was not given or conferred by any statute.

The statute fixing the time within which claims might be filed related only to the remedy and did not confer or give a cause of action. The court considered and treated the time fixed by the statute for filing claims against an estate as a limitation law and applied the rule that such statutes would not be given a retroactive effect. The right of action in that case existed before the death of the maker of the notes. "A cause of action, unless founded solely upon a statute, is a vested right, which cannot be destroyed by limiting a time for its enforcement that has already expired.” (2 Lewis' Sutherland on Stat. Const. sec. 706.)

This case does not present a situation where the time fixed by the amendment of 1903 (one year) within which suit must be brought had expired when the act went into effect. A little less than three months had expired after the death of plaintiff's intestate before the amendment went into effect. More than nine months were left to plaintiff to bring the suit within the time allowed by the amendment of 1903.

In our opinion the demurrer to the special plea should have been overruled, and for the error in sustaining it the judgment will be reversed and the cause remanded.

Reversed and remanded.

Mr. CHIEF JUSTICE CARTER, dissenting:

I cannot agree with the reasoning in the foregoing opinion. The question to be decided is not, in my judgment, whether the statute in question is a statute of limitations or one creating a liability, but whether the legislature intended, when it amended the act, to make the amendment retroactive. If the legislature, in so amending, had in plain and unambiguous terms shown a clear intention to make the act retroactive in effect, then I believe the reasoning of the opinion would be sound, but there is no language in such amendment that warrants any such construction. While it is undoubtedly within the legislative power to pass

a statute such as this and to make it applicable to existing causes of action, "yet such a statute is not to be readily construed as having a retroactive effect but is generally deemed to apply merely to causes of action arising subsequent to its enactment, and the presumption is against any intent on the part of the legislature to make the statute retroactive. * * * The statute will only be given a retroactive effect when it was clearly the intention of the legislature that it should so operate." (Hathaway v. Merchants' Loan and Trust Co. 218 Ill. 580.) Retroactive laws are always looked upon with general disfavor, and Chancellor Kent said: "There has not been, perhaps, a distinguished jurist or elementary writer within the last two centuries who has had occasion to take notice of retrospective laws, either civil or criminal, but has mentioned them with caution, distrust or disapprobation." (Sutherland on Stat. Const. sec. 406. See to the same effect, 17 R. C. L. 682; 19 Am. & Eng. Ency. of Law,-2d ed.-174; Endlich on Interpret. of Statutes, sec. 271.) The general rule is that a statute is construed as operating only on cases or facts which come into existence after it is passed, unless a retroactive effect is clearly shown to be intended by its wording. There was nothing in this amendment to indicate such an intention on the part of the legislature, therefore the presumption should prevail that it was not retroactive. (Hathaway v. Merchants' Loan and Trust Co. supra.) And even if the intention clearly appears, it should not be given effect if to do so would render the act unreasonable or unjust.

The opinion assumes that this statute is not one of limitation, but this court treated it as a statute of limitations and so termed it in Wall v. Chesapeake and Ohio Railroad Co. 200 Ill. 66. Whether or not it is such a statute, I believe that it should not be construed as operating on cases or facts which came into existence before it was enacted.

(No. 11715.-Judgment affirmed.)

THE MUELLER CONSTRUCTION COMPANY, Plaintiff in Error, vs. THE INDUSTRIAL BOARD OF ILLINOIS et al.(JOSEPH BELANGER, Defendant in Error.)

Opinion filed February 20, 1918—Rehearing denied April 4, 1918.

1. WORKMEN'S COMPENSATION—the words “arising out of” and "in the course of" the employment are used conjunctively in Workmen's Compensation act. In section 1 of the Workmen's Compensation act of 1913 the words "arising out of" and "in the course of" are used conjunctively and in order to satisfy the statute both conditions must concur, as the employer is not an insurer for all accidents occurring in the course of the employment.

2. SAME meaning of words “arising out of” and “in the course of" the employment. In section I of the Workmen's Compensation act of 1913, providing that an injury for which compensation is to be paid must arise out of and in the course of the employment, the words "arising out of" refer to the origin or cause of the accident and are descriptive of its character, while the words "in the course of" refer to the time, place and circumstances under which the accident takes place.

3. SAME reason for classification of hazardous employments in Workmen's Compensation act. The reason for the classification of hazardous employments in section 3 of the Workmen's Compensation act of 1913 is that those engaged in such occupations are subject to special risks and hazards peculiar to the occupations enumerated and not common to other employments, and that society should, in justice, bear a portion of the burden arising from the accidental injuries peculiar to the risks of those employments, as a part of the cost of such business.

4. SAME when injury to employee while crossing a street occurs in the course of his employment. A carpenter foreman who is struck and injured by an automobile while crossing a street for the purpose of using a telephone, as a part of his duties as foreman, to order materials for the day's work because there was no telephone in the building where he was employed, must be regarded as being injured while in the course of his employment.

5. SAME-effect where injury in course of employment occurs before or after working hours. In determining whether an injury occurred in the course of the employment the exact time when the earning of wages commenced and ended is not conclusive of the question, and a reasonable period must be allowed before and after such time where the employee is injured at a place where he might