[5] A coroner's verdict was offered and admitted in evidence over the objection of the plaintiff in error, the major part of which is as follows: went to the office of the doctor who had been | 115 N. E. 855; Savoy Hotel Co. v. Industreating his wife and told him he had cut his trial Board, 279 Ill. 329, 116 N. E. 712. The finger while at work in the plant of the cord- testimony of witnesses formed no sufficient age company a few days before. The finger basis for the finding and award. was then badly infected and the doctor could not tell whether there had been any laceration, but on opening it he found considerable pus. Favre was treated thereafter by the doctors, and the finger becoming gangrenous, he was taken to a hospital and the finger was amputated on February 15th. There was a general infection of the system and he died two days afterward. "That the said John Favre to his death * came from septicemia, due to a cut of finger from fiber can, accidentally received while in the discharge of his duties for the Peoria Cordage Company." Unless that verdict was admissible in evidence as proof that the injury to the finger arose out of and in the course of employment of Favre by the plaintiff in error, there was no competent evidence on which an award could be made. The antiquity of the office of coroner and the general nature of the duties of the office at common law were stated in United States Life Ins. Co. v. Vocke, 129 III. 557, 22 N. E. 467, 6 L. R. A. 65. The office of coroner, as the name indicates, related to the crown as a representative of the government, and at common law his duties were both judicial and ministerial. His ministerial duty was to act as the substitute of the sheriff under proper conditions, and the judicial authority related to inquiries as to the manner of death of any person slain or who died in prison or otherwise came to a violent or sudden death. [1-4] It is not necessary that some witness should testify to seeing an accident arising out of and in the course of employment if it is shown in some way that while the employé is at work there has been a recent accident or some circumstance tending to show the fact; but in this case there was none whatever. The testimony of witnesses as to whether the injury arose out of or in the course of employment was all purely hearsay and incompetent. The fact that statements were made by Favre to doctors who treated him did not render their testimony competent. Declarations made by one injured to his attending physician are admissible in evidence when they relate to the part of the body injured and his symptoms and sufferings, because a physician is necessarily guided to some extent by such information, free from suspicion of being spoken with reference to future liti-His principal official duty was to inquire ingation, but the statements are not competent if they relate to the cause of the injury. Illinois Central Railway Co. v. Sutton, 42 Ill. 438, 92 Am. Dec. 81; Chicago & Alton Railroad Co. v. Industrial Board, 274 Ill. 336, 113 N. E. 629; Globe Accident Ins. Co. v. Gerisch, 163 Ill. 625, 45 N. E. 563, 54 Am. St. Rep. 486; Reck v. Whittlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, 771, 5 N. C. C. A. 917; Gilbey v. Great Western Railway Co. (1910) 3 B. W. C. C. 135; Amys v. Barton (1912) 1 K. B. 40; State v. Davidson, 30 Vt. 377, 73 Am. Dec. 312. The testimony of the witnesses concerning what Favre said to them as to the cause of the injury and where and how it occurred was incompetent and should not have been admitted and was insufficient to sustain the award. This court cannot inquire into the weight of conflicting evidence and determine where the preponderance lies. Parker-Washington Co. v. Industrial Board, 274 Ill. 498, 113 N. E. 976; Munn v. Industrial Board, 274 Ill. 70, 113 N. E. 110; Illinois Midland Coal Co. v. Industrial Board, 277 Ill. 333; 115 N. E. 527; Forschner & Co. v. Industrial Board, 278 Ill. 99, 115 N. E. 912; Smith-Lohr Coal Co. v. Industrial Board, 279 Ill. 88, 116 N. E. 656. The court, however, is charged with the duty of determining whether there is any competent evidence sufficient to sustain an award, which must rest upon competent and legal evidence and not be based upon mere conjecture, suspicion, or surmise. Goelitz Co. v. Industrial Board, 278 Ill. 164, to the manner in which persons came to their death where there was any reason to suppose that death might not have been due to natural means and to institute prosecutions for homicide, and his jury fulfilled the office of a grand jury and could find a verdict of murder, and on that finding the accused could be tried and sentenced to death. The verdict, when it contained the subject-matter of an accusation equivalent to an indictment of the accused, was a basis for a trial and conviction. Smalls v. State, 101 Ga. 570, 28 S. E. 981, 40 L. R. A. 369. The general nature of the office of coroner remains the same as at common law, but the finding of the jury is advisory, merely, to the public authorities charged with the administration of the criminal law, and the duties of the coroner and his authority are specifically defined by statute. He is a conservator of the peace, and may act as sheriff in case the office of sheriff is vacant or the sheriff is disqualified to act. With respect to his power to hold inquests and under what circumstances he is authorized to hold the same, his power is specifically defined by the statute to hold an inquest "whenever and as soon as he knows or is informed that the dead body of any person is found, or lying within his county, supposed to have some to his or her death by violence, casualty or any undue means." The function and authority of the jury to render a verdict are fixed by the oath to "diligently inquire, and true presentment make, how, and in siduum, and no judicial power can be exercised by any other authority. Missouri River Telegraph Co. v. First Nat. Bank of Sioux City, 74 Ill. 217; People v. Olson, 245 Ill. 288, 92 N. E. 157. [7] The finding of the jury may be made prima facie evidence of facts within the legitimate scope of the inquiry but it determines no right and fixes no liability. It may be that a legitimate finding by a coroner's jury of a physical fact, when admitted as evidence, what manner, and by whom or what, the body, in the courts therein named, and the section which here lies dead came to its death." The exhausts the judicial power, leaving no recoroner can only act within the limits of his statutory authority, the plain purpose of which is to seek information and obtain and secure evidence in case there is reasonable ground to believe that a death has been caused by violence or other undue means, and he is authorized to apprehend any person implicated by the inquest as the unlawful slayer of the deceased or as an accessory thereto. He cannot go beyond his statutory authority, but within that authority he has discretion to hold an inquest if there is reason-will have some effect upon the issues in the able ground for a belief that the deceased may have come to his death by violence or unnatural means. Unless by an inquiry the circumstances indicate to the coroner that the deceased came to his death by violence, casualty, or any undue means, he has no authority to hold an inquest of the body. Albaugh-Dover Co. v. Industrial Board, 278 Ill. 179, 115 N. E. 834. Favre did not come to his death by violence, casualty, or any undue means, but died under the care of physicians, at a hospital and after an operation, from infection which the evidence showed might enter into any cut or injury such as he had sustained, and it does not appear that the coroner had any information or knew of any circumstances indicating that he came to his death from any of the causes mentioned in the statute. If the coroner had any information which in the exercise of his discretion authorized him to act, his authority was limited to an inquiry into the physical facts and obtaining and securing evidence for the apprehension and prosecution of any person implicated in the commission of a crime. In no case would the verdict be admissible for the purpose of fixing civil liability. In Pittsl urg, Cincinnati & St. Louis Railway Co. v. McGrath, 115 Ill. 172, 3 N. E. 439, which was an action for negligence causing the death of the plaintiff's intestate, the court, in sustaining the exclusion of the deposition of a witness at the inquest who had since died, after stating that such depositions were admissible in England, said: "The plaintiff was not a party to the proceeding before the coroner, was not present, had no opportunity for the cross-examination of the witness, and any question of negligence-the vital question in this case was not the very matter of inquiry before the coroner. The legitimate object of the inquest would have been fulfilled in finding simply that the death of deceased was caused by his being run over by a railroad train, without inquiry whether it was through anyone's, or whose, negligence." [6] It would be absurd to say that the deposition of a deceased witness was not admissible to fix a civil liability, but that the verdict of the coroner's jury, based on the same deposition, would be admissible for the same identical purpose. At common law the office of the coroner was judicial in its nature, but by section 1 of article 6 of our Constitution the judicial powers are vested civil case as prima facie evidence of the existence of such fact. In United States Life Ins. Co. v. Vocke, supra, which was an action on a life insurance policy, it was held that the verdict of a coroner's jury finding that the insured came to his death by suicide was admissible in evidence, although not conclusive. This was upon the distinct ground that the proceeding was analogous to proceedings in rem, being made in behalf of the public to ascertain matters of public interest and concern, and in that respect was an exception to the general rule in regard to hearsay evidence. The verdict in that case was legitimate evidence of how and in what manner and by whom or what the deceased came to his death. That decision was followed, concerning admissibility in evidence of a coroner's verdict that an insured came to his death by suicide, in the case of Grand Lodge Independent Order of Mutual Aid v. Wieting, 168 Ill. 408, 48 N. E. 59, 61 Am. St. Rep. 123; also to show the fact of suicide by a testator, in Pyle v. Pyle, 158 Ill. 289, 41 N. E. 999; and again in Devine v. BrunswickBalke-Collender Co., 270 Ill. 504, 110 N. E. 780, Ann. Cas. 1917B, 887, as to the cause of the death of a child killed by an automobile truck, where the verdict contained a finding that the driver of the truck was blamelessan essential question before the coroner's jury for their investigation and to be included in their verdict. It was followed also in Stollery v. Cicero & Proviso Street Railway Co., 243 Ill. 290, 90 N. E. 709, as to a verdict that a boy came to his death by being caught and crushed by a conveyor, and in Foster v. Shepherd, 258 Ill. 164, 101 N. E. 411, 45 L. R. A. (N. S.) 167, Ann. Cas. 1914B, 572, as to the portion of a verdict finding that a wound was caused by a bullet fired from a gun held in the hands of Homer Shepherd, who in the opinion of the jury was justified in the act. In all of these cases the body came to its death by means within the terms of the statute and the finding was within the statutory authority of the coroner and the oath of the jury. In Armour & Co. v. Industrial Board, 273 Ill. 590, 113 N. E. 138, the verdict held admissible found that the deceased came to his death from traumatic pneumonia, resulting from an injury received when he fell from an Armour & Co. wagon. That verdict was competent prima facie evidence of the physical fact of the cause of death, and there were stipulated facts that the deceased was driving a wagon for Armour & Co. at the time, in the course of his employ'ment. In this case there was not a word of competent evidence that Favre received any injury at the plant of the plaintiff in error or during the time that he was working there, and if the coroner could hold any inquest, his authority and the power of the jury ended with the finding that Favre died from septicæmia, due to a cut on his finger. The question whether the injury to his finger arose out of and in the course of his employment was purely a matter of private right between the applicant and the plaintiff in error and was beyond the jurisdiction of the coroner or his jury. No one is strictly a party to an inquest made on behalf of the public, and to permit a finding to fix the liability of an individual not a party to the proceedings except as one of the general public, who has no choice in the selection of the jury, no right to cross-examine witnesses or disprove testimony, is to condemn him unheard and to disregard fundamental principles applicable to all proceedings in courts of justice. It is not within the province of a coroner's jury to fix civil liability of any one growing out of an accident resulting in a death, except in so far as a legitimate finding of physical facts within the power and jurisdiction of the coroner may have that effect. Novitsky v. Knickerbocker Ice Co., 276 Ill. 102, 114 N. E. 545; Albaugh-Dover Co. v. Industrial Board, supra. If the coroner, in the exercise of his discretion, acted upon any information which justified holding an inquest, the finding that the death of Favre resulted from an injury while in discharge of his duty as an employé of the Peoria Cordage Company was entirely without the province of the jury and was unauthorized by the statute, the law or the nature of the coroner's office and could have no effect to fix a civil liability. It was incompetent for that purpose, and should not have been admitted in evidence. 64(1)-CONSTRUCTION-INVA sions may be expressed in the same section or LIDITY IN PART. 64(1)-CONSTRUCTION-INVA Where the unconstitutional part of a statute is so connected with other parts that they mutually depend upon each other, and the Legpendently of that which is void, the whole act islature would not have passed the residue indemust fall. 5. STATUTES _ ~64(1)-CONSTRUCTION-INVALIDITY IN PART. scope and purports to provide a complete and Since Acts 1901, c. 226, is comprehensive in independent system for the inspection of petroleum products within the state, and provides that after the time specified for its taking efwith and all laws providing for and regulating fect "all laws or parts of laws in conflict herethe inspection of petroleum products are hereby repealed," the legislative purpose to substitute for the old law (Acts 1881, c. 78, and Acts 1891, spection is shown, and since under repealing c. 27), a new and complete system of oil inclause no law would remain to which reference might be had to replace section 5, which is unclause cannot without section 5 be held valid. constitutional, the act including the repealing 6. QUO WARRANTO 24-PERSON ENTITLED TO RELIEF. Acts 1901, c. 226, as to oil inspection being void, relator appointed by the state geoloActs 1891, c. 27, to act as state supervisor of gist under Acts 1881, c. 78, as amended by oil inspection, has such interest in office as entitles him to bring quo warranto against one appointed under Acts 1901. Appeal from Superior Court, Marion County; Clarence E. Weir, Special Judge. Quo warranto by the State, on the relation of Adam H. Felker, against Marion Caldwell. Judgment for relator, and defendant appeals. Affirmed. Ele Stansbury and John F. Robbins, both The judgment of the circuit court is revers- of Indianapolis, and U. S. Lesh, of Hunted and the cause is remanded, with direc-ington, for appellant. Myers, Gates & Ralstions to set aside the finding and award of ton and Charles E. Cox, all of Indianapolis, the Industrial Board. Reversed and remanded, with directions. FARMER, CARTER, and CRAIG, JJ., dissenting. (187 Ind. 617) for appellee. SPENCER, J. The General Assembly of 1881 passed an act which provided for the inspection of all kinds of oil used for illuminating or combustive purposes and for regulating the sale and use of said oil within the state. Acts 1881, p. 571. Under this act, which was comprehensive in scope, the Governor was (Supreme Court of Indiana. June 27, 1918.) authorized to appoint a state inspector of 1. COMMERCE 51-OIL INSPECTION-EXCES- oils to administer the various provisions of SIVE FEES. Acts 1901, c. 226, regulating the inspec- the law and to perform the duties therein retion of petroleum products, is objectionable as quired of him. In 1891 the office of the state CALDWELL v. STATE ex rel. FELKER.* (No. 23444.) For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied. See also 123 N. E. 794. against citizens of Indiana in favor of those beyond its limits. Inasmuch as section 5 must be held invalid for the reasons just stated, we need not determine whether it violates the Constitution of this state. In fact, appellant does not seriously contend that said section is valid in all its provisions, but asserts that if, for the purposes of argument, its invalidity be assumed, the remain supervisor of oil inspection was created by, the state, since the Legislature will not be legislative enactment, and the duty of ad- presumed to have intended to discriminate ministering the laws relative to oil inspection was placed on that officer. Acts 1891, p. 29. Provision was made for the appointment of the supervisor by the state geologist, and the office of state inspector of oils was abolished. In 1901 the General Assembly passed an act "regulating the inspection of oil and other petroleum products, providing penalties for its violation, repealing all former laws and laws in conflict therewith." Acts 1901, p. 516. | ing sections of the act of 1901 may be upheld The duty of administering this law was plac- and reference had to the act of 1881 for the ed on an officer also designated as the state schedule of fees to be exacted for the insupervisor of oil inspection, and provision spection of oil. was made for his appointment by the Gov ernor. On June 22, 1917, appellant was named by the Governor of the state to hold the office of supervisor under the act of 1901, and entered on the discharge of the duties therein required of that officer. On July 2, 1917, the relator in this action was duly appointed by the state geologist to act as state supervisor of oil inspection under the acts of 1881 and 1891, and entered on the discharge of his duties in that capacity. This action in quo warranto was instituted by the relator in order to determine who is entitled to the office in question, and the decision of that issue rests on the validity or invalidity of the act of 1901. [1] Section 5 of that act provides a schedule of fees to be collected by the supervisor or his deputies from the person or persons at whose request each inspection of oil is made. Fifty per cent. of such fees is to be retained by the inspector as compensation for services rendered, and the remaining 50 per cent. is to be turned over to the state treasurer as a part of the general revenue. The contention is made that, inasmuch as section 5, on its face, provides for the collection of fees in excess of the amount necessary for the proper enforcement of the inspection law, it is, in part, a revenue measure and in violation of certain provisions of the state and federal Constitutions relative to uniform taxation and due process of law, and particularly objectionable as placing a burden on interstate commerce. The latter contention is fully sustained by the decision in Foote v. Maryland (1914) 232 U. S. 494, 505, 34 Sup. Ct. 377, 58 L. Ed. 698, and need not be discussed at length. In this connection see, also, Castle v. Mason (1915) 91 Ohio St. 296, 307, 110 N. E. 463, Ann. Cas. 1917A, 164; Bartels Northern Oil Co. V Jackman (1915) 29 N. D. 236, 252, 150 N. W. 576; Foote v. Clagett (1911) 116 Md. 228, 241, S1 Atl. 511. The decision in the case last cited is authority here for the holding that, as section 5 of the act of 1901 is unconstitutional as to oil and petroleum products transported into the state from other points, it must be held void as to oil produced and sold within [2, 3] There can be no doubt that: "Where a part only of a statute is unconstitutional, and therefor void, the remainder may still bave effect under certain conditions. The court is not warranted in declaring the whole statute void unless all the provisions are connected in subject-matter, depend on each other, were designed to operate for the same purpose, or are otherwise so dependent in meaning that it cannot be presumed that the Legislature would have passed one without the other. The constitutional and unconstitutional provisions even in the same sentence, and yet be perfectly may even be expressed in the same section, or distinct and separable, so that the first may stand though the last fall. The point or test is not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance." 1 Lewis' Sutherland on Statutory Construction (2d Ed.) § 296. See, also, State ex rel. v. Blend (1890) 121 Ind. 514, 521, 23 N. E. 511, 16 Am. St. Rep. 411. [4] On the other hand, it is equally well settled that: al, if such part is so connected with the other "Where a part of a statute is unconstitutionparts as that they mutually depend upon each other as conditions, considerations, or compensations for each other, so as to warrant the bewhole, and if they could not be carried into eflief that the Legislature intended them as a fect the Legislature would not have passed the residue independently of that which is void, then Blend, supra, 121 Ind. at page 521, 23 N. E. the whole act must fall." State ex rel. V. at page 513, 16 Am. St. Rep. 411. See, also, Board, etc., v. Knight (1917) 117 N. E. 565, 571; State ex rel. v. Fox (1902) 158 Ind. 126, 130, 63 N. E. 19, 56 L. R. A. 893. [5] The act of 1901 is comprehensive in scope and purports to provide a complete and independent system for the inspection and sale of oil and other petroleum products within the state. To a considerable degree it is a substantial re-enactment of the law of 1881, with such principal changes as appear to have been suggested by the increased use of such products and by the evident purpose to provide an additional revenue to the state. The act expressly provides that: It "shall take effect and be in force from and after January 1, 1903, after which said date all laws or parts of laws in conflict herewith, and all laws providing for, and regulating the inspection of petroleum oil, or petroleum products, used for illuminating purposes in this state, are hereby repealed." (Our italics.) Af Meloy, J. W. Verbarg, John Clerkin, Wm. a TOWNSEND, J. Appellants sought temporary injunction to prevent the officers of Jennings county from carrying out the provisions of an act to relocate the county seat. Acts 1913, p. 906. It is contended: First. That the act is void under section 22 of article 4 of our Constitution, which says: [6] It was thus clearly the legislative pur-¡cree rendered, complainants appeal. pose to substitute for the old law a new and firmed. complete system of oil inspection, and, unMiller & Dowling and Geo. H. Batchelor, der the provisions of the repealing clause, all of Indianapolis, for appellants. H. C. no law would remain to which reference might be had to replace an invalid section. Appellant bases his right to the office in question on the provisions of section 3 of the act of 1901, which provide for the appointment of the supervisor by the Governor, and, further, that his salary shall be paid out of the state treasury, although the services of that officer had previously cost the state nothing. It is inconceivable that this provision would have been enacted by the Legislature except on the theory that the returns to the state treasury, under the provisions of section 5, "The General Assembly shall not pass local would provide a sufficient revenue to meet * or special laws regulating county and the necessary appropriations for the depart-township business." ment of oil inspection. In brief, we are forc- Second. That if this section does not aped to the conclusion that, with section 5 elim- ply, section 23 of article 4 applies, which inated, the act of 1901 cannot be made op- forbids a special law where a general law erative, and that the entire act, including the can be made applicable. repealing clause, must therefore be governed by the rule that, where valid and invalid provisions of an enactment are so connected one with the other that it is apparent that the Legislature would not have passed the act, except as a whole, the entire statute must fall. This leaves the act of 1881 in force, except as amended and modified by the act of 1891, and the relator's appointment to the office of state supervisor of oil inspection, under the provisions of the latter enactment, must be upheld. He has such a property right in the office as entitles him to bring this action (City of Madison v. Korbly [1869] 32 Ind. 74), and that right has been established. Our conclusions, in their substance, serve to dispose of the vital issues presented and require an affirmance of the judgment be low. Judgment affirmed. (187 Ind. 614) [1] That the relocation of county seats is not "county business" within the meaning of the first section above set out has been conclusively decided by the courts of this state. Mode v. Beasley, 143 Ind. 306, 42 N. E. 727; Board v. State, 147 Ind. 476, 46 N. E. 908; Swartz v. Board, 158 Ind. 141, 63 N. E. 31; Board v. State, 155 Ind. 604, 58 N. E. 1037; Board v. State, 161 Ind. 616, 69 N. E. 442. We are aware that Board v. State, 147 Ind. 476, 46 N. E. 908, was overruled by Board v. State, 155 Ind. 604, 58 N. E. 1037, but not upon this point. It simply holds that the court in 147 Ind. 476, 46 N. E. 908, supra, made a mistake in the application of the principle; and that the act there involved did regulate county business; and that the Legislature could not, by combining county business with the relocation of the county seat, make such a law valid when it was not separable. The case turns on a special assessment which made that act void under section 1, article 10, of our Constitution. CRIST et al. v. MOLONY et al. (No. 23152.)* It is also contended that Board v. State, (Supreme Court of Indiana. June 27, 1918.) 161 Ind. 616, 69 N. E. 442, by implication 1. STATUTES 94(3)—SPECIAL LAWS-RELO- overruled Mode v. Beasley, supra; but an CATING COUNTY SEAT-COUNTY BUSINESS. examination of that case discloses that the The relocation of county seats is not "coun-act there in question involved the building of ty business" within Const. art. 4, § 22, provid- a courthouse, and this could not be separating that the General Assembly shall not pass local or special laws regulating county and township business. ed from the relocation provisions. The act here in question does not pretend to regulate county business within the meaning of section 22, art. 4, of our Constitution. It simply provides for a petition by the voters for an election; for a bond by the petitioners to pay expense if the election fails; for an order and notice of election; for the order in which petitions shall be acted upon; for the appointment of clerks and judges of Appeal from Circuit Court, Jennings Coun- election; for a form of ballot; for a canvass ty; James F. Cox; Special Judge. of the returns; for the per cent. necessary Suit by George M. Crist and others against to carry the election. It also provides that Daniel Molony and others. From the de- if the vote is in favor of relocation, the coun For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied. |