[6] The appellant insists that the trial court could not order the entire amount of [1] The appellee insists that the judgment the award paid to the appellee until the inof July 5, 1916, was a final order which ad- terest of the appellant had been determined judicated that Kalish had no claim to any upon his appeal No. 11,751. The question of part of the award. Kalish was a tenant in the appellant's interest cannot, however, be possession of a part of the property, and determined in that appeal. That appeal is Priess was the owner of the fee. They were based upon the proposition that the court both parties to the special assessment pro- was without jurisdiction of the intervening ceeding, the former as occupant and the lat-petition, and we agree with that position.

The only effect of reversal would be to re-stock commissioners to certify a pay roll for quire the dismissal of the petition. Since the salary of the relator as messenger of the all the proceedings upon this petition were without jurisdiction, the court should have ignored them. It did not do so, but, without the introduction of any other evidence of his exclusive ownership than the order of March 22d, ordered the payment to Priess.

The orders appealed from will be reversed, and the cause remanded, with directions to sustain the motion to vacate the order of March 22, 1917, to dismiss the intervening petition of the appellant, and to proceed to a hearing upon evidence on the petition of the appellee for payment of the award.

Reversed and remanded, with directions.

(281 Ill. 390)

PEOPLE ex rel. DOWNS v. BROWN et al. (No. 11772.)

(Supreme Court of Illinois. Dec. 19, 1917.) 1. EVIDENCE 29-JUDICIAL NOTICE-APPROPRIATION ACTS CONSTITUTIONAL PRO

VISIONS.

The court takes judicial notice of constitutional provisions and acts of the General Assembly making appropriations.

2. MANDAMUS 107-PAYMENT OF SALARY FROM STATE-LAPSE OF APPROPRIATION.

board at the rate of $70 per month from the time of his discharge by the board on February 1, 1914, to May 1, 1916, the date on which he was certified by the Civil Service Commission to the position of messenger of the state mining board, and commanding the Civil Service Commission to approve such pay roll, the auditor to issue a warrant for such salary and the state treasurer to countersign and pay the warrant. The defendants answered the petition, and a replication having been filed, the cause was heard by the court without a jury, and a writ of mandamus was awarded for payment of the salary from the 1st day of February, 1914, to June 30, 1915, inclusive. The defendants appealed from the judgment.

The facts are as follows: The relator, William F. Downs, was on and prior to July 1, 1911, an employé of the state under the classified civil service as a messenger in the office of the state board of live stock commissioners, and was so employed on January 27, 1914, at a salary of $840 per year, payable in monthly installments of $70. On January 27, 1914, the board notified him that his services would be dispensed with after February 1, 1914, and the next day the president of the board filed charges of general incompetency against him. On February 1, 1914, the board removed him from his position and refused to permit him to further perform its duties. Thereafter a hearing was had before W. M. Allen, an investigator of the Civil Service

Under Const. art. 4, § 17, providing that no money shall be drawn from the state treasury except in pursuance of an appropriation, and section 18, providing that appropriations shall end with the first fiscal quarter after the adjournment of the next regular session of the General Assembly, mandamus does not lie to make or approve a pay roll or draw a warrant for the payment, after such time, of the salary of one wrongfully discharged from the civil serv-Commission, who made a report that the ice, no appropriation for such position being made by a later General Assembly, although before the lapse of the appropriation the Civil Service Commission made a finding that the charges were not proved, the auditor having no reason for retaining the amount claimed after such time.

charge of general incompetency was not sustained, and that, while the errors committed by the relator would justify an investigation and temporary suspension, they did not justify dismissal, and he recommended a reinstatment. On June 30, 1914, the Civil Service Appeal from Circuit Court, Sangamon Coun- Commission sent to the relator a card adty; E. S. Smith, Judge. mitting him to an efficiency examination for Mandamus by the People, on the relation the position of messenger, to be held on July of William F. Downs, against L. F. Brown 3, 1914. The relator attended and took the and others, the Board of Live Stock Commis-examination, but failed to pass; his general sioners, the Civil Service Commission, the average being 63.06 per cent. On September Auditor of Public Accounts, and the State Treasurer, commanding the certification of a pay roll, the approval thereof, issuance of a warrant and countersignment, and payment thereof. Judgment for the plaintiff, and the defendants appeal. versed.

29, 1914, the Civil Service Commission passed a resolution reciting the hearing before Allen, the swearing of witnesses and taking of testimony, and found that the charges were proved and discharged the relator from the Re-position of messenger in the office of the board

Edward J. Brundage, Atty. Gen., and Clarence N. Boord, of Chicago, for appellants. B. L. Catron, of Springfield, for appellee.

CARTWRIGHT, J. The relator, William F. Downs, filed in the circuit court of Sangamon county his petition for a writ of mandamus directed to the board of live stock commissioners, the Civil Service Commission, the auditor of public accounts, and the state treasurer, commanding the board of live

of live stock commissioners. On May 27, 1915, the relator applied for a rehearing of the charges, and the rehearing was had before Frank Trutter, an investigating officer of the Civil Service Commission, who found that the charge of general incompetency was not sus tained by the proof, and that, while the errors committed justified an investigation and perhaps a reprimand of the relator, they did not justify dismissal. On September 16, 1915, the Civil Service Commission passed a resolution reciting the investigation, and finding

board.

roll or to draw a warrant for such payment.

that the charge was not proved, and ordering, coerced to pay money out of which the paythe name of the relator to be placed on the ment can be legally made, the writ of manpreferred reinstatement list for the position damus will be denied for the obvious reason of messenger, without allowance of pay for that courts, in administering the law, will the time of suspension. The name of the re- not command an act to be done which is lator was placed on the preferred reinstate- contrary to law. Want of funds being a comment list, and remained there until May 1, plete answer to a petition to compel an off1916, when he was certified to the position of cer to pay warrants drawn upon him is necmessenger in the office of the state mining essarily a complete answer to a petition to compel an officer to make or approve a pay People v. Needles, 96 Ill. 575: People v. Swigert, 107 Ill. 494; People v. Pavey, 137 Ill. 585, 27 N. E. 697; City of Chicago v. People, 210 Ill. 84, 71 N. E. 816; Fitzsimmons v. O'Neill, 214 Ill. 494, 73 N. E. 797; 18 R. C. L. 227; 19 Am. & Eng. Ency. of Law (2d Ed.) 795; 26 Cyc. 319; Dunten v. State, 172 Ind. 59, 87 N. E. 733; McCaslan v. Major, 64 S. C. 188, 41 S. E. 893; People v. Reis, 76 Cal. 269, 18 Pac. 309; State v. Bryan, 26 Or. 502, 38 Pac. 618.

The several steps which the relator asked the court to compel the defendants to perform were for the purpose of withdrawing from the state treasury the amount necessary to pay the relator a salary, and the conditions under which that may be done are fixed by the Constitution. Section 17 of article 4 of the Constitution provides:

"No money shall be drawn from the treasury except in pursuance of an appropriation made by law, and on the presentation of a warrant issued by the auditor thereon; and no money shall be diverted from any appropriation made for any purpose, or taken from any fund whatever, either by joint or separate resolution."

Section 18 provides as follows:

"Each General Assembly shall provide for all the appropriations necessary for the ordinary and contingent expenses of the government until the expiration of the first fiscal quarter after the adjournment of the next regular session, the aggregate amount of which shall not be increased without a vote of two-thirds of the members elected to each house, nor exceed the amount of revenue authorized by law to be raised in such time; and all appropriations, general or special, requiring money to be paid out of the state treasury, from funds belonging to the state, shall end with such fiscal quarter.'

[1, 2] The act of the General Assembly of 1913 (Acts 1913, p. 108) appropriated $840 per annum for the position held by the relator until the expiration of the first fiscal quarter after the adjournment of the next regular session and ended at that time. The General Assembly in 1915 made no appropriation for the salary of a messenger of the state board of live stock commissioners, nor any appropriation from which the salary of the relator could be paid. This suit was begun on May 8, 1916, and there was then no money in the treasury nor in the hands or under the control of the defendants, or any of them, out of which the payment of the relator's salary could be legally made. It does not appear that the acts of the General Assembly making appropriations in 1913 and 1915 were offered in evidence, nor that the constitutional provisions were presented to the circuit court, but those acts were public laws, of which the courts had judicial knowledge, and it was not necessary to offer them in eyidence. Both the supreme law and the public laws of the state are judicially noticed by the courts. People v. Hill, 163 Ill. 186, 46 N. E. 796, 36 L. R. A. 634; Vance v. Rankin, 194 Ill. 625, 62 N. E. 807, 88 Am. St. Rep. 173; People v. Braun, 246 Ill. 428, 92 N. E. 917, 20 Ann. Cas. 448; 1 Chamberlayne on Evidence, 605. If there is no fund in the control of the officer or body sought to be

Counsel for appellee regards the decisions in People v. Secretary of State, 58 Ill. 90, and People v. Lippincott, 72 Ill. 578, as sustaining the judgment, but that is a misapprehension. In People v. Secretary of State a petition for a writ of mandamus was filed in this court to compel the auditor of public accounts and the state treasurer to countersign and pay a warrant for printing paper sold and delivered to the state by the relator. A contract for paper for the use of the state, in pursuance of law, had been awarded to the relator and partly performed. The General Assembly had attempted to rescind the contract, and the secretary of state refused to accept any more paper and the auditor refused to draw a warrant for the amount due. The answer showed that there was no money in the treasury to pay for the paper, and the court said that if the petition was to compel payment alone the answer would be a bar to relief; but where the state had received services or property of an individual under a contract made in pursuance of law, it was the duty of the auditor to draw a warrant and the treasurer to countersign it and deliver it to the person entitled to receive it. whether there was money in the treasury or not for its payment, and it should be paid when there were funds for the payment of the claim. The contract was made pursuant to law, and the material question was whether the contract was binding so far as it had been performed before repudiation. Vouchers were payable by the act of 1849 (Laws 1849, p. 77) out of "any moneys in the treasury not otherwise appropriated." There was no question of the lapsing of an appropriation.

People v. Lippincott, supra, was also a petition for a writ of mandamus commanding the auditor to issue his warrant for $60, the price of ten volumes of the reports of the decisions of this court. The only question

819-FOREIGN-IMPEACHMENT

FOR IRREGULARITY.

Judgment awarding compensation under the Indiana statutes by a court of that state cannot be impeached by establishing irregularity in is erroneous, but will be regarded as valid and the form of proceedings, or that the decision binding in another state until set aside by the court in which it was rendered. 4. STATUTES STATUTE.

281 PLEADING FOREIGN

Where the statutes of another state are mere

ly evidence of ultimate facts, they need not be pleaded.

5. MASTER AND SERVANT 361-WORKMEN'S COMPENSATION ACTS-WHO SUBJECT.

submitted for decision was whether section | can be reviewed only by the Supreme Court up18 of article 4 of the present Constitution on direct appeal. abrogated all laws in regard to appropria- 3. JUDGMENT tions for the payment by the state for the opinions of this court, or whether the appropriations would not expire until the end of the first fiscal quarter after the adjournment of the next regular session of the General Assembly. The decision was that sections 3 and 4 of the act of 1849, relating to incidental expenses of state officers and the mode of defraying the same, were in the nature of standing appropriations, which did not expire until the period fixed by the present Constitution. That they were standing appropriations was again stated in People v. Day, 277 Ill. 543, 115 N. E. 732, and being such, it was held that the relator's claim should be paid whenever there were funds in the treasury which might be lawfully used for that purpose. The Lippincott Case was cited in People v. Swigert, supra, in support of the doctrine that all appropriations, whether general or special, when otherwise unlimited, will continue in force and be available for the purposes for which they were made until the expiration of the first fiscal quarter after the adjournment of the next regular session of the General Assembly, at which time all appropriations must lapse and cease to be of any validity.

The finding of the Civil Service Commission that the charge against the relator was not proved and the order to place his name on the preferred reinstatement list was on September 16, 1915, before the lapse of the appropriation from which his salary could have been paid, but he took no action until the commencement of this sult and permitted the appropriation to lapse. The auditor therefore had no reason to retain the amount claimed by the relator until it should be Judicially determined whether he was entitled to it or not, and by virtue of the Constitution the appropriation came to an end and any unexpended balance was turned back into the general funds of the state. The circuit court erred in awarding the writ, and the judgment is reversed. Judgment reversed.

(281 Ill. 259)

DRTINA et al. v. CHARLES TEA CO. (No. 11464.)

(Supreme Court of Illinois. Dec. 19, 1917.) 1. COURTS 219(8)—JURISDICTION-ILLINOIS APPELLATE COURT.

Under the Indiana Workmen's Compensation Act (Laws 1915, c. 106) § 4, providing that every contract of service between any employer and employé covered by this act, written or imto the taking effect of this act, shall, after the plied, now in operation or made or implied prior act has taken effect, be presumed to continue, where deceased entered employment of defendant six weeks before such act went into effect he was nevertheless subject to the act.

Error to Appellate Court, First District, on Appeal from Circuit Court, Cook County; Oscar M. Torrison, Judge.

Action by Filomena Drtina and others against the Charles Tea Company. To review a judgment of the Appellate Court (204 Ill. App. 183), affirming a judgment for plaintiffs, defendant brings certiorari. Affirmed. W. T. Alden, C. R. Latham, and H. P. Young, all of Chicago (T. A. Sheehan, of Chicago, of counsel), for plaintiff in error. Bowe & Bowe, of Chicago, for defendants in error.

CARTER, C. J. This was an action in debt in the circuit court of Cook county, based on a judgment of the superior court of Lake county, Ind. The judgment of the Indiana court was for an award under the Workmen's Compensation Act of said state (Laws 1915, c. 106). The judgment, both in that court and our circuit court, was for $9.07 a week for a period of 300 weeks, beginning September 10, 1915, payable to Filomena Drtina and to the legal guardian of her daughter Rosie. On appeal to the Appellate Court the judgment of the Cook county circuit court was affirmed, and the cause has been brought here on petition for certiorari.

Albert Drtina, husband of Filomena and father of Rosie, was killed September 10, 1915, by a railroad train while engaged in the business of selling and delivering tea and coffee for plaintiff in error. He was living in Hammond, Ind., at the time. Plaintiff in error's place of business was in Chi

The Appellate Court is without jurisdiction to pass upon a constitutional question. 2. COURTS219(8)—JURISDICTION-ILLINOIS cago. After Drtina's death his widow and SUPREME COURT - CONSTITUTIONAL QUESTIONS-WAIVER.

child filed their petition, pursuant to the Indiana Workmen's Compensation statute, in Appealing to the Appellate Court and sub- that state, setting forth the nature of their mitting the case for decision upon errors which it might lawfully consider is a waiver of alleged claim. An agent of plaintiff in error resided unconstitutionality of a statute involved, which at Hammond and was served with a copy of

niskki, 255 Ill. 384, 99 N. E. 621.

Counsel for plaintiff in error further argue that if section 62 must be assumed to be constitutional the judgment of the superior court of Lake county, Ind., should have been held void and unenforceable because that court failed to notify the parties of the rendition of such judgment, as required by the terms of said section. The record of the superior court of Lake county states, in terms, that notice was served as required by said section. Moreover, we think it is clear from other evidence in the record that the officers or representatives of the company had a copy of such judgment within the time spec

the application and notice of the arbitration | Appellate Court only as to errors which were hearing. The case was called for a hearing properly assigned in that court and upon on January 10, 1916, defendants in error be- which that court had jurisdiction to pass. ing present, represented by their counsel. A Appealing to the Appellate Court, and subspecial appearance was entered by said com- mitting the case for decision upon errors pany for the purpose of objecting to the ju- which that court might lawfully consider, is risdiction of the board on the ground of de- a waiver or abandonment of any assignment fective service, in that the person who had of error which that court could not pass upon been served was not at the time of such serv- and which can be reviewed only by this court ice in its employ. No proof was offered to on a direct appeal. Town of Scott v. Artsustain this objection and it was overruled, man, 237 Ill. 394, 86 N. E. 595, and cases whereupon the hearing proceeded and was cited; Vermilion Drainage District v. Shockparticipated in by plaintiff in error's attor-ey, 238 Ill. 237, 87 N. E. 335; People v. Viskney. At the close of petitioners' case the attorney for plaintiff in error asked for a continuance for introducing testimony "upon the merits of the case." The continuance appears to have been allowed, but plaintiff in error offered no testimony. Thereafter, on January 18, 1916, the board made an award for the petitioners and against plaintiff in error. Subsequently, in accordance with the Indiana Workmen's Compensation statute, plaintiff in error filed its application for a review of the award, setting forth, among other things, the alleged defective service of summons. After a hearing these objections were overruled and a decision entered against plaintiff in error. By section 61 of the Indi-ified by the Indiana statute for such service. ana act it is provided that an appeal to the Appellate Court of that state may be had by either party within 30 days. Such an appeal was not taken. Subsequently defendants in error, under the provisions of said act, filed a certified copy of the Industrial Board's award in the superior court of Lake county, and judgment was rendered thereon in accordance with said statute. Section 62 does not provide for any service of summons prior to the rendition of judgment in the superior court, but contemplates that after judgment is entered the parties be notified.

[1, 2] Counsel for plaintiff in error argue here, as they did in the Appellate Court, that the provisions of section 62 of the Indiana Workmen's Compensation Act are unconstitutional in authorizing the entry of a judgment in the superior court without first serving notice upon the person against whom such judgment is entered. It appears from the record in this case that plaintiff in error was notified, in accordance with said section 62, after said judgment was entered in the superior court of Lake county. The Appellate Court, in passing on this question, rightly decided that under the statute and decisions of this state said Appellate Court was without jurisdiction to pass on a constitutional question. There can be no question that if litigants desire to question the constitutionality of an Illinois statute they waive such question by appeal to the Appellate Court instead of directly to the Supreme Court of this state, and therefore, by like reasoning, the question as to the constitutionality of the Indiana statute cannot now be raised in this court. This court has repeatedly decided that it can review the decision of the

[3] Counsel for the plaintiff in error further argue that the judgment of the circuit court of Cook county is erroneous because it was entered for installments of compensation that had not accrued when such judgment was rendered. Such judgment is in the usual form when the award is made in weekly installments and in accordance with the provisions of the Workmen's Compensation Acts of this state (Hurd's Rev. St. 1915-16, c. 48, §§ 126-152L) and of Indiana as well as of numerous other jurisdictions, and our attention has not been called to any authorities that convince us that a judgment in that form is invalid. Furthermore, this was a judgment based on the Indiana statute and in accordance with its provisions. A judgment of a sister state cannot be impeached by establishing irregularity in the form of proceedings or that the decision is erroneous. On this record the Indiana court had jurisdiction of the subject-matter and the person and therefore was authorized to render the judgment. It will be regarded as valid and binding in another state until set aside by the court in which it was rendered. 15 R. C. L. 915. This same reasoning applies with full force also to the further point made by counsel for plaintiff in error that the Workmen's Compensation Act of Indiana cannot apply to employés of foreign corporations carrying on interstate commerce in that state. We think it is plain, under the Indiana statute, fairly construed, that the court was authorized to enter judgment against plaintiff in error, even though the deceased employé was engaged in interstate commerce, and if the judgment of the Indiana court is erroneous it cannot be inquired into here.