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The plaintiffs in error were operating an inter-State as well as an intra-State railroad, and if the work at which Olson was engaged at the time of his injury was a part of the inter-State commerce in which the receivers were engaged he is not entitled to compensation under the State Compensation law but only under the Federal Employers' Liability act, if at all. (Staley v. Illinois Central Railroad Co. 268 Ill. 356; Chicago, Rock Island and Pacific Railway Co. v. Industrial Board, 273 id. 528; Illinois Central Railroad Co. v. Behrens, 233 U. S. 473.) Not every employee of an inter-State carrier is engaged in inter-State commerce. If his work constitutes a real and substantial part of the inter-State commerce in which the carrier is engaged then the employee is engaged in inter-State commerce, otherwise not. (Illinois Central Railroad Co. v. Behrens, supra; Pederson v. Delaware, Lackawanna and Western Railroad Co. 229 U. S. 146; Chicago, Rock Island and Pacific Railway Co. v. Industrial Board, supra.) His employment need not be directly in the transportation of goods from one State into another or in the operation or movement of trains. If he is engaged in the operation, maintenance or repair of any of the instrumentalities used by the carrier in the transportation of goods from one State into another he is engaged in inter-State commerce. Section men repairing a track, carpenters repairing a bridge, machinists and car repairers working on engines and cars, and hostlers caring for engines, are engaged in inter-State commerce if the track, bridge, engines and cars are used in inter-State commerce. Their work has a direct and substantial connection with inter-State transportation and is an essential part of it. This cannot be said of Olson's work. It had no connection, even remote, with transportation. It was preliminary to the erection of a structure which might eventually form a part of a road-bed used in inter-State commerce. The forms were not instrumentalities of interState commerce, and the retaining walls, which had not yet
been built, could not be such instrumentalities until the filling which they were to retain and upon which the tracks were to rest had been deposited in place. Olson's work was a matter of indifference, so far as the inter-State commerce in which the plaintiffs in error were engaged was concerned, though the structure to be erected might eventually become an instrument of such commerce.
The judgment of the circuit court was right, and it is affirmed.
(No. 11010.-- Judgment affirmed.) THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, vs. Pat
RICK H. HART et al.-(THE CHICAGO BONDING AND
Opinion filed October 23, 1917.
1. Bonds--secretary of bureau of labor statistics is authorized to receive license fees. Under section 12 of the act relating to the bureau of labor statistics, as amended in 1909, the secretary of the board is authorized to receive and act as custodian of license fees for private employment agencies, and his bondsmen are liable for loss to the State caused by his appropriating such fees to his own use.
2. SAME-State not bound by representations of an employee in application for bond. The State is not bound by the representations of an employee of the State, in his application for a bond, with respect to the approximate amount of money he would handle in a year, as the State is not bound to know or inquire into the method of a bonding company in determining whether it will become a surety.
3. SAME-effect of knowledge by the State that an employee is mningling public funds with his own. The mere fact that an officer or officers of the State knew that a bonded employee was mingling public funds with his private funds is no defense to a suit by the State on his bond, as the State owes no duty to a bonding company to use diligence to save such company from loss.
APPEAL from the Circuit Court of Sangamon county; the Hon. NORMAN L. JONES, Judge, presiding.
GILLESPIE & FITZGERALD, and SABAT H, STAFFORD & SABATH, (CHARLES B. STAFFORD, of counsel,) for appellant.
P. J. LUCEY, A. B. GARRETT, and Jacob R. CREIGHTON, for the People.
Mr. JUSTICE DUNCAN delivered the opinion of the court :
Appellee sued Patrick H. Hart as principal, and appellant, the Chicago Bonding and Surety Company, as surety, in an action of debt upon an official bond given to appellee by Hart as secretary of the bureau of labor statistics. The declaration charges that in said bond it was provided that if said Patrick H. Hart should faithfully perform his duties as such secretary and should faithfully account for and pay over to the parties entitled thereto all moneys that should come into his hands by virtue of said office, and should account and turn over to his successor in office all properties, moneys, books and papers that should come into his hands by virtue of said office, then the said writing obligatory was to be void, otherwise to remain in full force and effect. The breach of the bond assigned is that after the appointment of Hart, and during the time he was such secretary, prior to the said 20th day of April, 1914, to-wit, between said date and December 31, 1913, divers sums of money due appellee as fees and taxes for licenses issued to divers persons, firms and companies for the privilege of conducting and carrying on in this State the business of private employment agencies, to-wit, $4375 in money, came to the hands of said Hart as such secretary, all of which sums it was his duty, as such secretary, to collect and account for and pay over to the State Treasurer as the money of appellee; that he failed to regard and perform that duty, as such secretary, during or since that time and converted and disposed of said sums to his own use, and has neglected and refused on request, and still refuses, to pay over said sum, or any part thereof, to appellee or its treasurer. A
copy of the bond and a bill of particulars were attached to and filed with the declaration, and Hart was defaulted.
Appellant filed its plea of 11011 est factum without verification, and therewith gave notice of five special defenses, three of which, upon motion of appellee, were stricken from the case. The other two, upon which the cause proceeded to trial, are, in substance, (1) appellant denies that appellee has suffered damage and loss in any amount, as alleged by it, and insists on strict proof of the various amounts it is alleged that Hart, as such secretary, received and failed to account for and pay over to appellee's treasurer; (3) that the duties of Hart, as such secretary, are fixed by the statute, and nowhere in the said statute is it provided that Hart, as such secretary, shall receive or collect any of said sums alleged to have come into his hands, and that there was no breach of any official duty of Hart for which appellant is liable as his surety.
A jury was waived, and on the trial of the cause the bond was produced and introduced in evidence and the evidence was heard on the special matters in issue. The court found against appellant, and found the debt to be $10,000 and the damages of appellee $4375. Judgment was rendered accordingly, and this appeal followed.
The plea of non est factum was apparently filed to permit the giving of notice of the special defenses aforesaid, and no question arises under that plea.
The evidence establishes the fact that Patrick H. Hart was appointed secretary of the bureau of labor statistics in 1913 and gave said bond, with appellant as surety, in the sum of $10,000, which was duly approved by the Governor. He kept at the Sangamon Loan and Trust Company's bank, in Springfield, an official account up to the close of December, 1913, when he closed up said official account and made no more deposits at said bank or at any other bank in his name, as such official. That account was closed by a check signed by Hart, payable to William Ryan, Jr., State Treas
urer, for $3716.34, the same being moneys paid to him for licenses of private employment agencies and interest thereon. Thereafter Hart continued in said office and collected from Richard J. Knight, chief inspector of private agencies, at various times up to March 28 or 29, 1914, fees for licenses of private employment agencies amounting in all to the sum of $4375. Those moneys were received by Hart in his official capacity and were sent to him by Knight, to be retained in his official capacity, as shown by the positive testimony of Knight, by the letters of Knight to Hart in which he made the remittances, and by the letters of Hart in which he acknowledged the receipt of the remittances, All these last sums received from Knight by Hart were deposited by him in the Ridgley National Bank, at Springfield, in a private account in his name, and were never paid over to the State Treasurer by Hart or to anyone authorized to receive them, as shown by the testimony of Luke D. McCoy, who was appointed as successor to Hart as secretary of the bureau of labor statistics in 1914, and who was acting secretary from about April 1, 1914, to September 1, 1914, after Hart had abandoned and left the office, about March 30, 1914. McCoy's evidence was corroborated by several other witnesses and exhibits in evidence.
It is argued by appellant's counsel that the evidence fails to show that Hart received the first five items or sums named in the bill of particulars, amounting to $250, from Knight after December 31, 1913, the day he made settlement with State Treasurer Ryan, as Knight remitted said sum to Hart at Springfield in a letter written by Knight at Chicago on December 30, 1913, and that therefore the evidence is not clear that Hart had not paid this sum to the State Treasurer in said settlement. The evidence as to these items clearly shows that the money was deposited in the Ridgley National Bank in Hart's individual account and that no money in that account was paid to or turned over to said treasurer. The appellant admitted that all the items