{ "id": 5456576, "name": "THE CITY OF ROCKFORD, Appellant, v. THE INDUSTRIAL COMMISSION et al.-(Mark E. Emigholz, Appellee.)", "name_abbreviation": "City of Rockford v. Industrial Commission", "decision_date": "1978-01-27", "docket_number": "No. 49484", "first_page": "597", "last_page": "605", "citations": [ { "type": "official", "cite": "69 Ill. 2d 597" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "413 Ill. 428", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5313658 ], "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/ill/413/0428-01" ] }, { "cite": "372 Ill. 560", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2526615 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/ill/372/0560-01" ] }, { "cite": "58 Ill. 2d 234", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2952444 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-2d/58/0234-01" ] }, { "cite": "39 Ill. 2d 260", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2856601 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/39/0260-01" ] }, { "cite": "57 Ill. 2d 345", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5407419 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-2d/57/0345-01" ] }, { "cite": "38 Ill. 2d 479", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2860456 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0479-01" ] }, { "cite": "406 Ill. 452", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2633833 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/ill/406/0452-01" ] }, { "cite": "355 Ill. 419", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5285319 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/ill/355/0419-01" ] }, { "cite": "339 Ill. 141", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5242071 ], "weight": 2, "year": 1934, "opinion_index": 0, "case_paths": [ "/ill/339/0141-01" ] }, { "cite": "326 Ill. 553", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5189780 ], "weight": 2, "year": 1930, "opinion_index": 0, "case_paths": [ "/ill/326/0553-01" ] }, { "cite": "369 Ill. 280", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2566366 ], "opinion_index": 0, "case_paths": [ "/ill/369/0280-01" ] }, { "cite": "67 Ill. 2d 137", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5813822 ], "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0137-01" ] }, { "cite": "50 Ill. 2d 2", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911426 ], "pin_cites": [ { "page": "5-6" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/50/0002-01" ] }, { "cite": "44 Ill. 2d 28", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2891312 ], "year": 1971, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0028-01" ] }, { "cite": "61 Ill. 2d 284", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2966496 ], "weight": 2, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0284-01" ] }, { "cite": "1975 Ill. Laws 2492", "category": "laws:leg_session", "reporter": "Ill. Laws", "opinion_index": 0 } ], "analysis": { "cardinality": 598, "char_count": 11613, "ocr_confidence": 0.879, "pagerank": { "raw": 1.7076074679005702e-07, "percentile": 0.7019154398576906 }, "sha256": "f2f19aba435ea2b1e76e0027396ad1fd915a483e601aeaf89b1f08e94213ae16", "simhash": "1:b4b4a8bb6f890613", "word_count": 1958 }, "last_updated": "2023-07-14T18:19:07.826164+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE CITY OF ROCKFORD, Appellant, v. THE INDUSTRIAL COMMISSION et al.\u2014(Mark E. Emigholz, Appellee.)" ], "opinions": [ { "text": "MR. CHIEF JUSTICE WARD\ndelivered the opinion of the court:\nOn March 3, 1972, the claimant, Mark E. Emigholz, filed an application for adjustment of claim with the Industrial Commission to recover workmen\u2019s compensation benefits from the respondent, the city of Rockford, for injuries sustained in an accident on December 22, 1971. The claimant alleged that on that date he was serving the respondent as a police officer. The arbitrator awarded the claimant $4,758, and the Commission affirmed the decision of the arbitrator. The respondent took an appeal by certiorari to the circuit court of Winnebago County, which ultimately confirmed the decision of the Commission, and the respondent filed a notice of appeal to this court under Rule 302(a) (58 Ill. 2d R. 302(a)). The circuit court stayed its final judgment pending disposition of the appeal.\nAt the time of the claimant\u2019s injury, section 1(b) of the Workmen\u2019s Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.1(b)) included within the class of employees eligible for compensation under the Act persons in the service of a municipal corporation (or of another type of local entity) \u201cexcept any official\u201d thereof. Effective October 1, 1975, section 1(b) was amended to include \u201cofficials\u201d within the definition of \u201cemployees.\u201d (1975 Ill. Laws 2492, 2495.) The parties do not contend that the 1975 amendment was retroactive, and we agree that the proceedings here were governed by the law in effect when the claimant\u2019s injuries occurred. (County of Cook v. Industrial Com. (1975), 61 Ill. 2d 284, 286.) The question on this appeal is thus whether the claimant was an official, as distinguished from an employee.\nThe hearing before the arbitrator on the claimant\u2019s application was originally set for June 5, 1972. For reasons which do not appear of record the Commission issued seven successive notices, each of which postponed the hearing, and, as a result, the hearing did not take place until November 7, 1973. On that date no one appeared for the respondent, and the arbitrator conducted an ex parte hearing, at which the only witness was the claimant.\nThe claimant testified that on the date of his injury he was .employed by the respondent as a police officer. On the night of December 22, the police had received a report that a burglar alarm had been set off at an auto parts establishment. The claimant and his partner responded to the call. The portion of the premises where cars were stored was surrounded by a corrugated metal fence some seven feet high. In order to climb the fence so as to enter the fenced-off area and conduct a search, the claimant stood on a wooden crate, which broke while he had one hand on the top of the fence, causing his hand to be dragged along the edge of the fence. Since there is no contention that the claimant was not injured in the course of his employment, or that the award was excessive, it is not necessary to describe in detail the extent of his injury. It is enough to state that the claimant was taken to a hospital for emergency treatment and for immediate surgery, and that a report by an examining physician which was introduced in evidence stated that permanent injury to his hand had resulted.\nThe arbitrator\u2019s award was rendered November 8, 1973. The respondent filed a petition for review, and on January 17, 1975, a hearing before the Commission took place. At this hearing the respondent offered no testimony but presented a \u201cmemorandum of law\u201d in which, for the first time, the contention was made that the claimant was an official of the city of Rockford. The respondent also tendered copies, certified by the city clerk of Rockford, of sections 21 \u2014 1 and 21 \u2014 6 of the city ordinances. Section 21 \u2014 1 creates a police department to consist of the chief of police and such number of other members as provided by ordinance. Section 21 \u2014 6 provides in part as follows:\n\u201cIn addition to the chief of police, the following offices and grades of offices in the police department shall be created and the members of the department shall be graded and classified accordingly: captains, lieutenants, sergeants, police patrolmen, and policewomen as designated by section 2 \u2014 132 of this Code.\u201d\nOn February 4, 1975, the Commission affirmed the award, and the respondent then took an appeal to the circuit court by certiorari. The court set aside the decision of the Commission, and remanded the cause for the purpose of taking further evidence.\nOn the remanded hearing no additional testimony was introduced, and the Commission reaffirmed the award of the arbitrator. The respondent then took a second appeal to the circuit court, which again set aside the Commission\u2019s order and remanded the cause, this time because of a claimed failure of the Commission to give proper notice of the hearing to the respondent\u2019s counsel. On this second remand it does not appear from the record what evidence, if any, was offered by either party, but the Commission once again affirmed the arbitrator\u2019s original award.\nThe respondent then took a third appeal to the circuit court, and this time the court confirmed the Commission. It is from this latter judgment that the present appeal is prosecuted.\nThe prior orders of the circuit court remanding the cause were interlocutory and not appealable. However, as we noted in Downey v. Industrial Com. (1969), 44 Ill. 2d 28, 29, appeal of the final order of the circuit court brings the entire record before us and permits review of the correctness of the remanding orders. See also Allis Chalmers Manufacturing Co. v. Industrial Com. (1971), 50 Ill. 2d 2, 5-6.\nFrom the report of proceedings it is difficult to determine whether the remandment orders were based on the court\u2019s belief that proof of the claimant\u2019s employment as a policeman could not rest solely on his own uncorroborated testimony, or whether the remandment was based on the proposition that further testimony was required to determine whether the claimant\u2019s position was that of an official.\nAs to the first alternative, the claimant\u2019s testimony that he was employed as a policeman was not controverted, and we see no reason why the claimant should be required to authenticate his testimony by that of other persons. Atlantic & Pacific Tea Co. v. Industrial Com. (1977), 67 Ill. 2d 137, 141. If the remandment was for the purpose of taking testimony on whether the claimant was an official, it was equally improper.\nSome jurisdictions have taken a functional approach to the question of a claimant\u2019s status, looking to such factors as the degree of sovereign power exercised by the claimant, the importance and independence of his position, and whether he is required to be bonded and to take an official oath. (See 1A A. Larson, Workmen\u2019s Compensation secs. 56.20, 56.31.) Under such an approach it might well have been necessary to put in evidence bearing on the criteria just enumerated. The exception previously existing for officials which was found in section 1(b) of the Act would have been a matter of defense, and the burden of proving that it was applicable would have fallen upon the respondent. (People ex rel. Illinois Armory Board v. Kelly (1938), 369 Ill. 280.) Since the respondent failed to introduce any such evidence of official status either before the arbitrator or in the hearing on review, the proper action by the circuit court on the first appeal would have been to confirm the decision of the Commission. We do not believe that the respondent would have been entitled to a second opportunity to put in that defense.\nIn Illinois, however, the functional approach is not followed. Instead, the question whether a policeman is an official (assuming that he is not such at common law, and is not made so by the Illinois Constitution or by statutory provision) hinges on whether the municipal ordinance by virtue of which he serves creates an \u201coffice. \u201d Johnson v. Industrial Com. (1927), 326 Ill. 553; City of Metropolis v. Industrial Com. (1930), 339 Ill. 141; Murphy v. Industrial Com. (1934), 355 Ill. 419; City of West Frankfort v. Industrial Com. (1950), 406 Ill. 452; City of Danville v. Industrial Com. (1967), 38 Ill. 2d 479; Village of Streamwood Police Department v. Industrial Com. (1974), 57 Ill. 2d 345; cf. County of Winnebago v. Industrial Com. (1968), 39 Ill. 2d 260; Wargo v. Industrial Com. (1974), 58 Ill. 2d 234; County of Cook v. Industrial Com. (1975), 61 Ill. 2d 284.\nThat there is an ordinance prescribing a policeman\u2019s duties is irrelevant (City of Metropolis v. Industrial Com. (1930), 339 Ill. 141), as is a requirement that he take an oath of office or be bonded (Johnson v. Industrial Com. (1927), 326 Ill. 553; Krawiec v. Industrial Com. (1939), 372 Ill. 560). What is required in order to show that he is an official is an ordinance which in terms creates an \u201coffice\u201d of which he is the occupant. Thus in City of West Frankfort v. Industrial Com. (1950), 406 Ill. 452, 455, the ordinance stated, \u201cThe office of police patrolman is hereby created,\u201d and in City of Danville v. Industrial Com. (1967), 38 Ill. 2d 479, 481, the ordinance provided, \u201cThere is hereby created the office of police sergeants.\u201d In each of t-hese cases the employee was held to be an official. By way of contrast, an ordinance merely authorizing the appointment of a policeman does not establish the appointee as an official. Murphy v. Industrial Com. (1934), 355 Ill. 419; Krawiec v. Industrial Com. (1939), 372 Ill. 560; Village of Steamwood Police Department v. Industrial Com. (1974), 57 Ill. 2d 345.\nThe Commission and the circuit court had before them certified copies of the ordinances introduced by the respondent referred to above. Trial courts may take judicial notice of municipal ordinances. (Ill. Rev. Stat. 1975, ch. 51, par. 48a; Charles v. City of Chicago (1952), 413 Ill. 428, 435.) The question whether the claimant was an official could thus have been readily resolved by examining the ordinance without the need of further evidence.\nThe respondent\u2019s ordinance, quoted earlier, in terms \u201ccreates offices\u201d in the police department which include those of police patrolmen. Except for its reference to \u201cgrades\u201d of department members, which we take to be a reference to the relative rank of each category, the ordinance does not differ in substance from those which were held to establish official status in the cases of City of Frankfort v. Industrial Com. (1950), 406 Ill. 452, and City of Danville v. Industrial Com. (1967), 38 Ill. 2d 479;\nWere the question to come before this court as a new one, we might question the propriety of excluding from workmen\u2019s compensation coverage as an \u201cofficial\u201d a police patrolman who, so far as the record shows, had no one under his command or supervision, and who, in the performance of his assigned duties, might not exercise functions of a supervisory or discretionary nature. In view of the unbroken course of prior decisions on the matter, and of the 1975 amendment to the Workmen\u2019s Compensation Act, however, we feel constrained to hold that under the city ordinance here the claimant was an official of the respondent, and that he was therefore not eligible for an award under the Act.\nFor the reasons given, the judgment of the circuit court is reversed and the award of the Industrial Commission is set aside.\nJudgment reversed; award set aside.", "type": "majority", "author": "MR. CHIEF JUSTICE WARD" } ], "attorneys": [ "A. Curtis Washburn and Stephen W. McCarty, of Rockford, for appellant.", "John L. Heaslip, of Rockford, for appellee." ], "corrections": "", "head_matter": "(No. 49484. \u2014\nTHE CITY OF ROCKFORD, Appellant, v. THE INDUSTRIAL COMMISSION et al.\u2014(Mark E. Emigholz, Appellee.)\nOpinion filed January 27, 1978.\nA. Curtis Washburn and Stephen W. McCarty, of Rockford, for appellant.\nJohn L. Heaslip, of Rockford, for appellee." }, "file_name": "0597-01", "first_page_order": 609, "last_page_order": 617 }