
    (No. 10793.)
    Phoebe Marshall, Admrx., Defendant in Error, vs. The City of Pekin, Plaintiff in Error.
    
      Opinion filed December 21, 1916.
    
    1. Workmen’s compensation—when Industrial Board has no pozver to award compensation. The Industrial Board has no power to award compensation under the Workmen’s Compensation act of 1913 where the act does not apply to the injured employee and to the employer or the accident in question does not come within the provisions of the act.
    2. Same—rule where employer conducts extra-hazardous business. Where it is sought to hold an employer under the Workmen’s Compensation act of 1913 because he conducts an extra-hazardous business and has not elected not to come under the act, it must also appear that the employee was engaged in such extra-hazardous occupation and was injured while in the course of that employment.
    3. Same—cities and villages are employers within meaning of the Workmen’s Compensation act. Cities and incorporated villages are employers within the meaning of the Workmen’s Compensation act of 1913, but they have the same right of election as other employers with reference to coming under the act and are governed by the same rules respecting extra-hazardous occupations as are applied to other employers.
    4. Same—when injury is not within Workmen’s Compensation act. The fact that a city operates a free wagon bridge does not render it liable under the Workmen’s Compensation act for an injury received by a policeman, caused by a bullet from his revolver, which was discharged when it fell from his pocket while he was stooping over his desk in the city hall, in the performance of his duties as desk sergeant.
    Writ of Error to the Circuit Court of Tazewell county; the Hon. J. M. Niehaus, Judge, presiding.
    
      J. P. St. Cerny, Corporation Counsel, (W. B. Cooney, of counsel,) for plaintiff in error.
    Prettyman, Velde & Prettyman, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court:

Plaintiff in error is a municipal corporation organized as a city under the general Incorporation act, and had adopted and was acting under the commission form of government on and prior to Saturday, December 6, 1913. On that day Harry Marshall, the husband of Phoebe Marshall, while acting as a special policeman for plaintiff in error, was accidentally killed in the city hall as he stooped over his desk, by the discharge of his own revolver, which was fired by falling out of his pocket and striking the edge of a cuspidor. His regular duty in which he was at that time employed was to act as desk sergeant, his hours on duty being from six o’clock P. M. on Saturdays to' six o’clock A. M. on Sundays. He was employed by the chief of police with the consent and approval of the mayor and commissioner of public health and safety of plaintiff in error, but the appointment was never ratified or approved by the council of plaintiff in error, unless the payment of salary or wages by the warrants of plaintiff in error on its order constituted a ratification by it, and he never took any oath of office or filed any bond as such special policeman. He was paid for his services to the city as desk sergeant and special policeman the sum of $326,—a little more than two dollars per day for the time he was actually employed,—from July 1, 1912, to November 1, 1913. Por years prior to the accident plaintiff in error was maintaining within its limits a free wagon bridge across the Illinois river, but it has never given any notice of its intention to provide and pay compensation under the Workmen’s Compensation act. The mayor learned of .the accident within a few hours thereafter, and the city council passed a resolution of condolence on the death of Marshall, December 8, 1913. Said deceased left no will but left surviving him five children and his said widow, who was appointed administratrix of his estate. On May 29, 1914, his widow, as said administratrix, made application for compensation for his death, under the Workmen’s Compensation act of 1913, to the Industrial Board of Illinois against plaintiff in error.. Arbitration was waived. The foregoing- facts were stipulated by the parties, with the further agreement that the decision of the Industrial Board, sitting as a full board, should be considered the same as a decision on an arbitration herein appealed from, and that the decision of the board have the same effect as if a decision on such appeal. The board awarded compensation in the sum of $2400. The circuit court of Tazewell county quashed the writ of certiorari directed to the board and on a review of its proceedings rendered a judgment against plaintiff in error confirming the award of the board and taxed the costs against plaintiff in error, and this writ of error followed.

The only question urged before the circuit court and before this court is the one of jurisdiction of the Industrial Board, based on the facts admitted in the record. If the Workmen’s Compensation act of 1913 did not apply to the deceased and to plaintiff in error, or if the accident in question does not come within the provisions of the act, the Industrial Board had no jurisdiction. Courter v. Simpson Construction Co. 264 Ill. 488.

Section 1 of that act provides that any employer in this State may elect to provide and pay compensation for accidental injuries sustained by any employee arising out of and in the course of the employment, according to the provisions of the act, and thereby relieve himself from any liability for the recovery of damages except as provided in the act. Paragraph (b) of that section provides that every employer within the provisions of the act who has elected to provide and pay compensation according to its provisions shall be bound thereby as to all his employees covered by the act so long as his election continues. If he does not elect to come under the act he is subject to the same liabilities and entitled to make the same defenses as existed before the act was passed, unless he is engaged in an occupation, enterprise or business denominated by section 3 of the act as extra-hazardous. Such employers, under section 3, are entitled to all of the benefits of' the act if they elect to come under it, and are presumed to have made this election unless they elect to continue under the old law, in which latter case the act does not permit them to make the defenses of assumed risk, contributory negligence and injury by the negligence of a fellow-servant.

It is insisted by the defendant in error, and it was held by the Industrial Board and the circuit court, that the maintaining of a free wagon bridge by plaintiff in error is the maintaining of a structure within the meaning of clause 1 of paragraph (&) of section 3 of said act, and therefore an extra-hazardous employment. To sustain the jurisdiction of the Industrial Board it is not only necessary to hold that plaintiff in error was engaged in an extra-hazardous occupation, but also that the deceased was engaged in that hazardous occupation and lost his life from an injury arising out of and in the course of said employment. An employer who is engaged in an extra-hazardous occupation and who has made no election to come under the Workmen’s Compensation act cannot be compelled to pay compensation under said act to any employee injured in an occupation not deemed extra-hazardous under said act simply because such employer is also engaged in an extra-hazardous employment and in which said employee is not engaged. To so hold would be to deny such employer equal rights and privileges with another employer who is only engaged in an occupation not deemed extra-hazardous within the meaning of such act, and would be in violation of the constitutional rights of such employer engaged in both kinds of occupations as well as in violation of the act itself. (Vaughan's Seed Store v. Simonini, 275 Ill. 477; Uphoff v. Industrial Board, 271 id. 312.) The deceased was not engaged in any work in connection with the bridge in question. The injury from which he died did not arise out of or in the course of the employment declared by the Industrial Board to be extra-hazardous, and he was not injured while engaged in an employment that was, in fact, shown by the evidence to come within any one of the occupations enumerated under said section 3 as extra-hazardous occupations.

It is insisted by the defendant in error that the State, and every county, city, incorporated village or other municipal corporation within this State, are by the terms of said act declared to be employers within the meaning thereof, and that they are liable to their employees for all accidental injuries sustained by them arising out of and in the course of their employment according to the provisions of the act, whether such employment be extra-hazardous or otherwise and without regard to the question as to whether or not they have elected to accept the provisions of the act. She further contends that the deceased was not an officer of the plaintiff in error, but that under the stipulations in this record he must be held to have been simply its employee within the meaning of said act, and that for these reasons it is liable in this case for his death, and that the judgment and finding herein should be in her favor upon those general broad grounds.

We do not here decide the question whether the deceased was an officer of plaintiff in error or merely an employee, but it may be conceded for the purposes of this decision that the deceased was an employee, as contended, and not an officer. Sections 4 and 5 of said act make it clear that all cities and incorporated villages of this State are employers within the meaning and intent of the act. It is equally clear from all the provisions of the act, and particularly from the reading of sections 1 and 2 thereof, that such cities and villages are not liable to their employees for the compensation provided in that act unless they have elected to provide and pay such compensation for accidental injuries to their employees, except for such injuries received by their employees arising out of and in the course of an employment or occupation denominated in section 3 of the act as extra-hazardous. Section 1 of the act in express terms provides that any employer in this State may make an election to pay compensation as provided by the act. Paragraph (&) thereof provides that every employer within the provisions of the act who has elected to provide and pay compensation under the act shall be bound thereby to all his employees covered by the act until January 1 of the next succeeding year, and also provides that any such employer may elect not to provide and pay the compensation therein provided after the expiration of such calendar year by filing notice as'therein provided. Paragraph (c) of said section provides that any employee may elect to be bound or not to be bound by said act by giving the notice as therein provided. All employers and employees are treated alike by said act so far as the rights of election are concerned, and cities and incorporated villages and other municipal corporations have the same right of election under the act as other employers. The plaintiff in error did not elect to be bound by the provisions of said act. The employment or occupation of the deceased at the time he was killed did not belong to the class of employments or occupations denominated in section 3 of said act as extra-hazardous, as heretofore stated. We must therefore hold that under the facts admitted in this record the Industrial Board had no jurisdiction to allow compensation in this case, and that the circuit court erred in quashing the writ of certiorari and in entering judgment approving the finding and award of the board.

The judgment of the circuit court is reversed.

Judgment reversed.  