Opinion
Gen. No. 45,588.
Opinion filed December 8, 1952 Released for publication December 23, 1952
Appeal by plaintiff from the Circuit Court of Cook county; the Hon. HARRY J. FLANDERS, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1951. Judgment reversed and cause remanded with directions. Opinion filed December 8, 1952. Released for publication December 23, 1952.
LOUIS G. DAVIDSON, JOSEPH D. RYAN, HARRY I. KRONENBERG, and LOUIS P. MILLER, all of Chicago, for appellant.
THOMAS C. STRACHAN, JR., JAMES O. DWIGHT, ERWIN H. WRIGHT, and GEORGE C. BUNGE, all of Chicago, for appellee; ARTHUR J. DONOVAN, of Chicago, of counsel.
James Quitman brought an action in the circuit court of Cook county against the Chicago Transit Authority to recover damages for personal injuries. Defendant joined issue and presented the affirmative defense that plaintiff's injuries arose out of and in the course of his employment and that the action is barred by the provisions of Section 29 of the Workmen's Compensation Act [Ill. Stats. 1951, ch. 48, par. 166; Jones Ill. Stats. Ann. 143.44]. Plaintiff denies this allegation. At the close of all the evidence plaintiff's motion to strike the affirmative defense was denied. At the conclusion of the evidence the court directed a verdict for the defendant on the ground that under the undisputed evidence plaintiff's injuries arose out of and in the course of his employment, and that since his employer, the American Car and Foundry Company, and the defendant were under the Workmen's Compensation Act, he cannot maintain the action. Judgment was entered against plaintiff, who appeals.
While the appeal was pending, our Supreme Court in Grasse v. Dealer's Transport Co., 412 Ill. 179, decided that the first paragraph of section 29 of the Workmen's Compensation Act is unconstitutional. Subsequent to the filing of that opinion the parties filed supplemental briefs. In its brief defendant states that in the Grasse case the Supreme Court has held that the first paragraph of section 29 is unconstitutional. In pointing out that the constitutionality of that paragraph was not raised in the trial court it insists that the proposition cannot be urged on this appeal. It says that an appellant may not urge the invalidity of a statute in the Appellate Court where the issue was not raised in the trial court, citing Sefcik Dairy Co. v. Jurca, 359 Ill. 237, 239; Zelney v. Murphy, 387 Ill. 492, 496; People ex rel. Toman v. Belmont Radio Corp., 388 Ill. 11, and other cases.
[1-4] Once a statute is declared unconstitutional it is void ab initio. No rights can be predicated upon it, nor can it afford any protection. It is as if it had never been written. It is our duty to recognize and follow the decisions of the Supreme Court. The cases cited by plaintiff are authority for the proposition that the constitutionality of a statute cannot be raised for the first time in a court of review. The constitutionality of the first paragraph of section 29 of the Workmen's Compensation Act was raised during the trial of the Grasse case. It was then properly before the Supreme Court. We are of the opinion that the cases cited by defendant are not applicable. We cannot close our eyes to the fact that the Supreme Court has declared the first paragraph of section 29 to be unconstitutional.
[5] Defendant asserts that the Supreme Court has exclusive jurisdiction of constitutional questions and that all such questions are waived by appeal to the Appellate Court, citing Armour Co. v. Industrial Board, 275 Ill. 328, 335, and other cases. The constitutional question was raised in the Grasse case and we feel that we should follow the law laid down by the Supreme Court in that case. Finally, defendant maintains that the Appellate Court, being a court of review, should interpret and apply section 29 of the Workmen's Compensation Act as though the Grasse case "had never been decided." We cannot ignore the Grasse case. As a court of review it is our duty to follow and apply the decisions of our Supreme Court. Therefore, the judgment of the circuit court of Cook county is reversed and the cause remanded with directions to sustain plaintiff's motion to strike the affirmative defense and for a new trial.
Judgment reversed and cause remanded with directions.
FRIEND, P.J. and NIEMEYER, J., concur.