DocketNumber: No. 18157. Judgment affirmed.
Judges: Thompson
Filed Date: 6/22/1927
Status: Precedential
Modified Date: 10/19/2024
In May, 1924, Emil Johnson was employed by the village of Elmwood Park as a special traffic officer, his compensation being five dollars for each day he was on duty. June 23, 1924, the board of trustees approved the recommendation of the head of the police department that an additional police officer be regularly employed, and Johnson was added to the force at a salary of $150 a month. He took the official oath and assumed his duties as motorcycle officer. October 5, 1924, Johnson was injured in a collision between his motorcycle and an automobile and died as a result of such injuries. Application for adjustment of a claim for compensation under the Workmen's Compensation act was filed with the Industrial Commission by defendant in error, the widow of Johnson and the mother of his two children, Howard and Robert, nine and three years old, respectively. An award was denied on the ground that Johnson was an official of the village and was injured in the performance of his official duties. The superior court of Cook county set aside the order denying an award, and on the record before it found that the petitioner was entitled to recover compensation and entered an award accordingly. This writ of error is prosecuted by leave of court to review the record.
Section 3 of the Workmen's Compensation act provides that the act shall apply automatically to every incorporated village and its employees, and section 5 provides that every person in the service of an incorporated village who is not an official of such village shall be considered to be an employee. It has been held that a person appointed to the office of police patrolman is an official of the municipality which by ordinance has created the office, and that such a person is by the terms of section 5 excluded from the provisions of the Workmen's Compensation act. (City of Chicago *Page 555
v. Industrial Com.
But it is contended by plaintiff in error that Johnson was appointed by the village board as a police patrolman, took the official oath and performed the duties usually performed by one holding such an office, and that therefore he was an officerde facto. A public office can exist only by force of law, and it would be a misapplication of terms to call one an officer who holds no office. While there is some authority to the contrary, the great weight of authority is to the effect that there can be no officer de jure or de facto where there is no office to fill. (People v. Knopf,
The judgment of the superior court is affirmed.
Judgment affirmed. *Page 556