Mr. JUSTICE THOMPSON delivered the opinion of the

court:

This writ of error is prosecuted to review the judgment of the circuit court of Cook county confirming the decision of the Industrial Commission awarding compensation for the death of Anthony Hample, the circuit court having certified that the cause is one proper to be reviewed by this court.

The errors specified are based upon the contention that the liability, if any, of plaintiff in error for the death of Anthony Hample is defined and limited exclusively by the provisions of the Federal Employers' Liability act, and that the Illinois Workmen's Compensation act as amended and in force July 1, 1917, is unconstitutional in so far as it applies automatically and without election to all employers and their employees engaged in the extra-hazardous business of carriage by land. (Laws of 1917, p. 507.) The first point assumes that the deceased was employed in interstate commerce at the time he received the fatal injuries. He was employed as a watchman and train rider, charged with the duty of guarding the property of plaintiff in error in its railroad yards at Hayford, Illinois, and with the duty of riding its trains to guard merchandise carried by it. The commission found that he was on duty at the time and at a place not outside of the limits prescribed for the performance of his duties; that he was not engaged in interstate commerce, and that the injury, received by him and resulting in his death was an accidental injury arising out of and in the course of his employment.

The deceased was found dead about four o'clock in the morning of August 18, 1917. The body was lying four or five feet off the east-bound main track of plaintiff in error and a considerable distance south of the Belt Line tracks, which crossed the tracks of plaintiff in error approximately at right angles. The body was lying on its back, with the head away from the track and with the arms stretched above

course.

the head. His gun, fully loaded, was lying on the ground a few inches from his right hand and his flashlight was in his coat pocket. There was a bullet wound through the chest, which caused a fatal hemorrhage. There was another bullet wound which passed through the arm and body at the level of the sixth rib. Both bullets took a downward There were no other marks, scratches or abrasions on the body. There were no eye-witnesses to the shooting of deceased, and just what he was doing at the time he was shot can be determined only by the facts and circumstances leading up to the time when he was last seen alive. Deceased had no regular hours of employment, but his usual hours were from 6:00 o'clock P. M. to 6:00 o'clock A. M. Until about 11:30 o'clock P. M. his duties were to watch and to guard the property of the plaintiff in error in its yards at Hayford. About this time train No. 92 was due to leave the yards for Michigan points, and it was the duty of deceased to ride this train to Valparaiso, Indiana. He was a special officer sworn in, with authority to make arrests. There were several side-tracks near the point where the body was found, and upon these side-tracks were some cars loaded with merchandise and also some "bad order" It was the duty of deceased to arrest anyone stealing journal brasses or merchandise from these cars and to otherwise protect his employer's property from trespassers. Some auto tires stolen from plaintiff in error had been discovered in the weeds and grass, and the officers of plaintiff in error had left these tires as a decoy, to see if the thieves would return for them. It is the contention of defendants in error that the deceased was shot by thieves returning for these tires or coming to steal other property of plaintiff in error. It is the contention of plaintiff in error that deceased had boarded interstate train No. 92, which was due to leave the yards about 11:30 o'clock and which it was the duty of deceased to ride to Valparaiso, Indiana, and that he was shot by someone on this train. The train crew all

cars.

testified that they did not see deceased board the train or anywhere in the vicinity of the train. The train was required to stop north of the Belt Line crossing, and there was the place where the deceased was directed to board the train. His body was found south of the Belt Line crossing. Whether he was shot while guarding this interstate train or while guarding the property of plaintiff in error stored in its yards was a question of fact to be determined from all the facts and circumstances in the record.

Some of the duties of the deceased had no connection with interstate commerce or its movement and transportation. Not every employee of an interstate carrier is engaged in interstate commerce. To be so engaged the work of the employee must constitute a real and substantial part of the interstate commerce in which the carrier is engaged. The true test is that at the time of the injury the employee was engaged in interstate transportation or in work so closely related to it as to be practically a part of it. (Chicago, Rock Island and Pacific Railway Co. v. Industrial Board, 273 Ill. 528; Chicago and Alton Railroad Co. v. Industrial Com. 288 id. 603.) The mere expectation that the employee would presently be called upon to perform a task in interstate commerce is not sufficient to bring the case within the act. (Chicago and Alton Railroad Co. v. Industrial Com. 290 Ill. 599.) The plaintiff in error was engaged in both interstate and intrastate commerce, and to relieve itself of its obligation to provide and pay compensation under the Workmen's Compensation act it was incumbent upon it to show the fact that the work being done at the time of the injury was interstate commerce. (Illinois Central Railroad Co. v. Industrial Board, 284 Ill. 267.) This is one of those cases where it is difficult, if not impossible, to determine just what deceased was doing when he was killed, and therefore it is a problem to determine under which act to proceed. There is evidence in the record to justify either conclusion. The injured employee or his per

sonal representative must determine whether to proceed under the State Compensation law or the Federal Employers' Liability act. Here the surviving dependents chose to proceed under the State statute, and the defense is that they should have proceeded under the Federal statute. If the choice had been to proceed under the Federal statute the defense would in all probability have been the State statute. In such case we will not substitute our judgment for that of the Industrial Commission, when there is any evidence in the record which justifies its finding.

We turn now to the constitutional question. When it is alleged that an act of the General Assembly violates constitutional restrictions imposed by the people upon the exercise of legislative power the rules by which the court is to be guided are well settled. The General Assembly is without restriction or limit in the exercise of legislative power, except as bounds are set up or restrictions imposed by the constitution. All presumptions are in favor of the validity of a statute, and in all doubtful cases the doubt is resolved in favor of the law. Neither the motive nor the wisdom of the General Assembly is ever questioned, but where it is clear that a limitation or restriction imposed by the people in the fundamental law has been violated or disregarded by the General Assembly it is the plain duty of the court to so declare, and that duty can neither be evaded nor neglected, no matter how desirable or beneficial the attempted legislation may be. Sutter v. People's Gas Light Co. 284 Ill. 634.

Section 3 of the Workmen's Compensation act provides that the act shall apply automatically and without election to all employers and their employees engaged in any of the enterprises or businesses which are declared by the act to be extra-hazardous, and in this class are placed carriers by land. It is contended that the act is unconstitutional because it creates a liability without fault of the employer, takes the property of employers brought automatically with

in its provisions without due process of law, denies to employers the right of trial by jury, delegates judicial powers to persons not authorized by the constitution to perform judicial acts, and restricts the free right of contract guaranteed by the constitution.

The scheme of the act is so wide a departure from common law standards respecting responsibility of employer to employee that doubts naturally arise respecting its constitutional validity. In support of this type of legislation it is said in New York Central Railroad Co. v. White, 243 U. S. 188, (37 Sup. Ct. 247,) that the whole common law doctrine of employers' liability for negligence, with its defenses of contributory negligence, fellow-servants' negligence and assumption of risk, is based upon fiction and is inapplicable to modern conditions of employment; that in the highly organized and hazardous industries of the present day the causes of accident are often so obscure and complex that in a material proportion of cases it is impossible by any method correctly to ascertain the facts necessary to form an accurate judgment, and in a still larger proportion the expense and delay required for such ascertainment amount, in effect, to a defeat of justice; that under the former system the injured workman was left to bear the greater part of industrial accident loss, which because of his limited income he was unable to sustain, so that he and those dependent upon him were overcome by poverty and frequently became a burden upon public or private charity; and that litigation was unduly costly and tedious, encouraging corrupt practices and arousing antagonisms between employers and employees.

The entire matter of liability for death caused by wrongful act, both within and without the relation of employer and employee, is a modern statutory innovation. The legislature may modify this right of action, extend it or limit it, or even abolish it altogether. No person has a vested interest in any rule of law, entitling him to insist that it shall remain unchanged for his benefit. (Middleton v.