text:
    (No. 1359
    Standard Oil Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.
    Baer & Baer, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyic, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now comes Oscar E. Carlstrom, Attorney General, and makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the claimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.-

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it is hereby ordered that the claim be dismissed without an award and the case stricken from the docket.


source: Caselaw Access Project

author: Mr. Chief Justice Clarity

license: Public Domain

text:
    (No. 1387
    Central States Portland Cement Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    Cutting, Moore & Sidley, for claimant.

      Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now comes Oscar E. Carlstrom, Attorney General, and makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the claimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it is hereby ordered that the claim be dismissed without an award and the case stricken from the docket.


text:
    (No. 1388
    Consolidated Cement Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    Cutting, Moore & Sidley, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now comes Oscar E. Carlstrom, Attorney General, and makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the claimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it is hereby ordered that the claim be dismissed without an award and the case stricken from the docket.


text:
    (No. 1389
    Florida Portland Cement Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    Cutting, Moore & Sidley, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now comes Oscar E. Carlstrom, Attorney General, and makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the claimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it is hereby ordered that the claim be dismissed without an award and the case stricken from the docket.


text:
    (No. 1454
    The Continental National Bank and Trust Company, (Successor of the Continental and Commercial Trust and Savings Bank), John R. Thompson, Jr., and Henry M. Henriksen, Executors Under the Last Will and Testament of John R. Thompson, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 17, 1930.

    Mayer, Meyer, Austrian & Platt, for claimant.

      Osoab E. Cablstbom, Attorney General; Boyce A. Kiddeb, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the ■court:

It appears that one John B. Thompson died on June 17th, 1927, a resident of Lake County, State of Illinois, leaving a last will and testament which was duly probated in the Probate Court of Lake county, Illinois, and letters testamentary were duly issued thereon on July 2nd, 1927, to the Continental and Commercial Trust & Savings Bank, John B. Thompson, Jr., and Henry M. Henriksen, the persons named in said will as executors thereof.

That on the 15th day of December, 1927, the County Court of Lake County entered an order approving the appraiser’s report in the appraisement of the estate of said decedent, John B. Thompson. It is alleged that said order identified and determined the relationship of the beneficiaries taking by said will and of all persons, corporations and transferees taking property or interests appraisable by reason of the death of the said John B. Thompson and determine the value of the successions, transfers and gifts to the beneficiaries under said will and the tax due the State of Illinois as shown by such appraisement and order.

It is further alleged that at the time of the determination of the inheritance tax there was allowed as a deduction on account of the claim of Bose H. Thompson, the widow of said decedent, the sum of $39,026.63; that on the 14th day of May, 1928, an order was entered by the Probate Court of Lake County allowing claim to said widow in the sum of $289,026.63 further alleging that $250,000.00 of said claim was not included as deduction against the gross value of said estate.

In the first place the record does not disclose as far as this court can ascertain much about the nature of this widow’s claim. It appears by a copy of the order of court (of the County Court of Lake County) that two of the executors of the estate consented to its allowance; that the third executor made no objection. It would appear to this court that the widow of said deceased, claimant as aforesaid, was advised of the hearing in the matter of the inheritance tax as this court understands and believes the law to be that all parties in interest shall have proper notice of hearing on inheritance tax in which any interest would be affected. Therefore it would appear that claimant would naturally be aware of the proceedings and the effect of inheritance tax proceedings and it would naturally seem reasonable that she would advise the executors of .her claim and have same presented and allowed before the inheritance taxes were determined as there appears to be ample time between the appointment of executors and the date of the inheritance tax hearing. It also appears to the court that the Attorney General of Illinois should be given notice in the matter of allowance of a large claim of this kind which so materially affects the rights of the People of the State of Illinois in the matter of the taxing powers of the State. The Attorney General contends that a petition should have been filed in the County Court of Lake County seeking a new order fixing the correct amount of the inheritance tax. If this was done the Attorney General would have been notified and given the right to appear for the State and if the court would find that a lower tax value should be fixed it would appear that no trouble would be had in the claimant’s application for a refund from the State Treasurer.

It is the contention of this court that if a method had been followed as prescribed and intended by the statute of the State of Illinois, that claimant would be furnished with the relief sought and it is therefore the opinion of this court that jurisdiction should not be taken in this case in this court and it is therefore recommended that the claim be disallowed.


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    (No. 1548
    Katherine Niestadt, Minnie Hildebrandt, Elisabeth Hildebrand, Frederick A. Ringler, William Ringler, Jr., Fred Ringler, Individually, and William Ringler, Jr. and Fred Ringler, Conservators of the Estate of George Ringler, an Insane Person, Claimants, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    William G. Thon, for claimants.

      Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a case wherein the claimants are asking for damages in the sum of Thirteen Thousand Nine Hundred Fifty-eight ($13,958.00) Dollars for 6,970 square feet of land which was taken for highway purposes by the State of Illinois for the construction of the State Bond Issue Route No. 19 in the County of Cook and City of DesPlaines.

It appears that the Attorney General makes no contention as to the fact that the land in question was taken by the State of Illinois for the construction of the Northwest Highway and that the pavement was laid in October and November, 1928. It appears that the only contention for the consideration of this court as to whether according to claimant that claimant should be allowed $2.00 a square foot, or according to the defendant $1.25 a square foot. This court is of the opinion that the contention of the Attorney General in view of all the facts before the court that $1.25 a square foot would be an adequate remuneration for the land taken which would amount to $8,724.00. The court considers this a fair consideration.

Therefore the court recommends that the claimant be awarded the sum of $8,724.00.


author: Mr. Justice Thomas

text:
    (No. 1603
    Thomas W. Connole, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    A. B. Johnson, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant was an employee of the State engaged in construction work on State Bond Issue Route No. 108 near Carrollton. On August 12, 1929, a truck he was driving overturned and the lower part of his left leg and the left foot were badly burned the foot being permanently injured so that he has to wear a brace. The injury necessitated his being taken to a hospital and his hospital and physician’s bills, amounting to $1,362.25, were paid by the State. At the time of his injury claimant was earning $21.00 per week. In addition to the hospital and physician’s bills of claimant paid by the State he has expended $50.00 for a brace. He was not taken to the hospital for about a month after receiving the injury and during that time he was nursed and cared for by his sister, Margaret Connole. After he was taken to the hospital his mother, Julia Connole, waited upon and nursed him thereby saving the expense of a regular trained nurse. The evidence shows the services of these women were worth $345.00 a sum very much less than would have been required to employ regularly trained nurses. The proof also shows the State paid claimant compensation at the rate of $10.50 per week for about 35 weeks, the total amount paid being $370.50.

Section 3 of the Workmen’s Compensation Act specifically provides • that the provisions of the act shall apply automatically to the State when engaged in any enterprise or business declared by that section to be extra hazardous. The construction of a paved road is an enterprise or business declared by section 3 of the act to be extra hazardous. (Van Hoorbeke v. State, 5 Ct. Cl. 337.)

The evidence shows conclusively that claimant’s injury arose out of and in the course of his employment and the State is, therefore, liable to pay him the compensation provided for in the act. Item 14 of paragraph (e) of section 8 of the act provides that an employee shall be paid fifty, percentum of his average weekly wage during 135 weeks for the permanent and complete loss of the use of a foot. We think the evidence shows that, for all practical purposes, claimant has lost the use of his left foot and is entitled to be compensated therefor as provided in said item 14. One half of his weekly wage is $10.50 which for 135 weeks would be $1,417.50. Of this amount he has already been paid $370.50 leaving due him $1,047.00. We think he should also, be allowed the $50.00 he paid for his brace and the $345.00 the evidence shows the services of his sister and mother were worth. Claimant is therefor allowed an award of $1,442.00 to be paid in a lump sum.


text:
    (No. 1608
    Sam Ryerson, Jr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    Sam Ryerson, pro se.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim suffered as a result of a fire which occurred on the 5th day of June, 1930, at the State laboratory of the Department of Agriculture, Springfield, Illinois. The claimant was at the time of the alleged damages and is now, or at the time of the filing of the claim, an employee of the State of Illinois as an assistant in making tests, investigations, etc., relative to the Department of Agriculture experiments. It appears that claimant had clothing and other personal effects in the building at the time of the fire; that claimant was instrumental in assisting in saving property of the State of Illinois valued at around $70,000.00 and that in so doing he disregarded his own property, books and effects.

The claimant shows that he sustained a loss of Three Hundred Ninety-five and 75/100 ($395.75) Dollars. The Attorney General comes and recommends the allowance of this award provided this court is of the opinion that it is a claim that equity and good conscience would sustain.

This court is of the opinion that wherein an employee of the State of Illinois unselfishly permits the destruction of his own property in order to save a large amount of property for the People of the State of Illinois, that he should be com- • pensated.

Therefore this court recommends that claimant be allowed and awarded the sum of Three Hundred Ninety-five 75/100 ($395.75) Dollars.


text:
    (No. 1642
    Ella Kirkpatrick, Next Friend of Duncan Louise Kirkpatrick, a Minor, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    Augustus L. Williams, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

The declaration in this case charges that Louise Kirk-Patrick, a child of the age of four years and a student in the kindergarten department of the Hayes school of the City of Chicago, on December 12, 1929, while walking out of the school to the schoolyard, down the stairway of the school, was shoved by other children also walking and playing while leaving said school, which resulted in her being thrown upon the cement sidewalk and trampled upon by many of the children causing her to sustain permanent injuries, for which $12,000.00 damages are asked against the State. To this declaration the Attorney General has filed a demurrer, and the cause is submitted on the declaration and demurrer.

It does not appear why this claim is filed against the State. The Board of Education of the City of Chicago has the management, supervision and control of the schools of the city. As the declaration fails to state any cause of action against the State the demurrer is sustained and the case dismissed.


text:
    (No. 1516
    Hillman F. Spencer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1930.

    Capps & Weaver, for claimant.
    Oscar B. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears from the evidence in this case, that claimant was on the 17th day of August, 1928, and for over a year prior thereto, employed by the Department of Public Works and Buildings of the State of Illinois, in the Division of Highways and while assisting in moving a portable or collapsible office building from Kiser to Carrolton, and while engaged in his duties, riding on a truck, he was thrown from the truck, his right foot caught in a tire carrier, and dragged five hundred feet. His flesh and tendons were torn and lacerated.

It appears that the State has already paid claimant $350.00 and consents to a further award for injuries, etc., of $1,528.40.

It is therefore recommended that the claimant be allowed $1,528.40.


text:
    (Nos. 765, 766, 768
    New York, Chicago and St. Louis Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1926.

      Rehearing denied January 19, 1927.

      Motion to set aside previous orders allowed March 10, 1927.

      Alschuler, Putnam & Flannigen, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It- appears from a stipulation filed herein that claimant on or about Feb. 3rd, 1919, in pursuance of the Public Utilities Law of the State of Illinois, applied to the Public Utilities; Commission for its approval of the issue by claimant of its evidence of indebtedness in the form of its second and improvement mortgage bonds secured by a second and improvement mortgage, said mortgage being a lien upon the entire railroad property of the claimant, and it further appears by such stipulation that said issue of bonds in the principal sum of Four Million One Hundred Thirty-five Thousand (4,135,000.00) Dollars, were approved by the said Public Utilities Commission of Illinois, and an order was entered by said commission directing claimant to pay an amount equal to ten cents on every one hundred dollars of the bonds authorized by this order, and that said amount should be paid into the State Treasury of Illinois before said bonds could be issued.

In pursuance of said order the claimant on or about Feb. 21,1919, after stating to the commission and to the State Treasurer of Illinois, that it should not pay a sum equal to ten cents on every one hundred dollars of notes authorized, paid into the State Treasury of Illinois Four Thousand One Hundred and Thirty-five ($4,135.00) Dollars, being the charge prescribed by said order of said commission.

It was further stipulated that if witnesses were offered by the claimant and examined they would testify that the funds should be immediately available to meet, discharge and refund obligations incurred and that claimants could not wait without inconvenience and loss any further orders of said commission, or of any court, and that it was of urgent necessity to said claimant that the issue of said bond be approved by said commission immediately and without delay in order that the same might be sold at once to provide funds for the aforesaid purpose; by reason whereof the said money was paid into the State Treasury to avoid such inconvenience and loss.

The stipulation contained other clauses but the above as recited shows the main contentions of the claimant and said stipulation or the part recited above appears to the court to be similar in cases Nos. 765, 766 and 768. Therefore the disposition of all three cases will be controlled by this opinion. The essence of the contention of the claimant is that a portion of the payments made by them should not be made owing to the fact that certain of the property and assets upon which the aforesaid bonds were to be secured, were without the State of Illinois. It is not necessary to discuss the amount of property in the State or outside of the State in view of the opinion of this court as the question to be considered here is whether or not the claimant is entitled to recover any part of the charges paid by them. A contention of the State is that the Public Utilities Act of 1913/-provided claimant with a specific remedy by appeal from the orders complained of herein, and that the orders of the Public Utilities Commission are not subject to review by the Court of Claims.

It is the opinion of this court that the Public Utilities Act provided an adequate remedy for the claimant by an appeal to the Circuit Court and on to the Supreme Court of the State of Illinois, if they saw fit to pursue the matter for a final adjudication.

Having failed to follow the plan as provided by the statute, the claimant cannot obtain the relief sought in the Court of Claims. If the statute had been followed and the Supreme Court has passed judgment in favor of the claimant, then of course this court would follow the law or judgment of the Supreme Court in the instant cases.

It is urged that this case is one that should be considered as a matter of equity and good conscience. It does not appear to the court as reasonable to employ this rule in this case in view of the fapt that claimant was provided by statute with a clear legal remedy.

It is the opinion of this court that it was the intention of the Legislature when the Court of Claims was established to give jurisdiction to the Court of Claims only in such cases that could not be heard or determined by any other court or by any other process of law provided by the statutes of the State of Illinois. The Public Utilities Act provided a means as the Legislature intended for those who were dissatisfied by the rulings or decisions of the commission to appeal to the courts of the State for an adjudication of any dispute that, might arise or any injustice that might appear to any party or person in interest.

■ It is therefore considered by the Court that Claims Nos. 765, 766 and 768 be disallowed.

Subsequently, on January 19, 1927, the following order was filed:

This matter coming on for a further consideration on petition for- a rehearing, and the court after reading and considering the said petition, is of the opinion that there is no reason disclosed by such-' petition or suggestions therein to change or alter the opinion of this court heretofore filed.

Therefore it is considered by this court that said petition for rehearing be and the same is hereby denied.

On March 10,1927, the following order was filed:

This matter coming on to be heard on the motion of the complainant, in the above entitled cause, the New York, Chicago, and St. Louis Railroad Company, asking that the order entered herein, denying the motion for a rehearing, filed by said complainant, be set aside, and the court, having heard arguments of counsel, and the State of Illinois being represented by the Attorney General and the complainant by its counsel, and the court being fully advised in the premises, it is, therefore, ordered that the order entered by this court, denying the petition for rehearings filed on the behalf of the complainant in the above entitled claims, be and is hereby set aside.

It further appears to the court that in order that the complainant may have a just and fair consideration of its petitions for rehearing, that said petitions for rehearing be and shall be considered along with said other petitions for rehearings pending to certain other claims involving the same subject matter as to facts and law.

On June 14,1931, the following additional order was filed:

Now this cause coming on to be heard upon the statements filed by claimants and statements filed by the Attorney General on behalf of the State, and the court having considered said statements and the petitions for rehearing herein heretofore filed.

And it appearing to the court that nothing contained in the statements filed by the claimants reveal sufficient cause or reason for the modification or change of the opinion heretofore filed in these cases, it is ordered by the court that the opinion heretofore filed be, and it is hereby confirmed and the cause dismissed.


text:
    (No. 1260
    American Bridge Company, et al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1931.

    Fyffe & Clarke, for claimant.
    Oscar E. Carrlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

The above entitled case involves the claims filed by fourteen corporations all consolidated as parties claimant in one case,, and the facts of the individual claims are considered in this consolidated opinion upon consolidated briefs and arguments filed by the claimants, the brief and argument filed by the State, and the reply brief of the claimants.

The claims are as follows by the following designated corporations :

American Bridge Company, a corporation organized and doing
business under the laws of the State of New Jersey............ $ 200.00
The American Steel and Wire Company of New Jersey, a corporation organized and doing business under the laws of the
State of New Jersey.......................................... 2,250.00
Benjamin Moore & Co., a corporation organized and doing business under the laws of the State of New Jersey............... 627.15
The Gilbert and Bennett Manufacturing Company, a corporation organized and doing business under the laws of the State
of Kentucky ................................................. 480.17
Haskelite Manufacturing Corporation, a corporation organized
and doing business under the laws of the State of New York... 956.66 H. J. Heinz Co., a corporation, organized and doing business under the laws of the .State of Pennsylvania..................... 1,000.00
Robert W. Hunt Company, a corporation organized and doing
business under the laws of the State of Delaware.............. 200.00
Laclede Steel Company, a corporation organized and doing business under the laws of the State of Missouri.................. 750.21
National Candy Co., Inc., a corporation organized and doing
business under the laws of the State of New Jersey....'....... 483.97
Orbon Stove Co., a corporation organized and doing business under the laws of the State of Delaware......................... 250.00
National Tube Company, a corporation organized and doing business under the laws of the State of New Jersey................ 1,000.00
Peerless Light Co., a corporation organized and doing business
under the laws of the State of Maine.......................... 609.82
Thomas J. Webb Co., a corporation organized and doing business
under the laws of the State of West Virginia.................. 150.00
Western Felt Works, a corporation organized and doing business
under the laws of the State of West Virginia.................. 1,500.00

It appears from the declaration filed that each of. the fourteen corporations is a foreign corporation licensed to do business in the State of Illinois; it appears further that each of the claimants paid the amounts set opposite the names above to the Secretary of State as franchise fees for the privilege of transacting business in the State of Illinois, and that each payment so made was paid under protest; it appears further that each of said companies did, within thirty days after the date of the payment of such amounts, file a hill for an injunction in the Circuit Court of Sangamon County restraining the Secretary of State from paying that amount collected over to the State Treasurer, that a temporary injunction was issued in each case, and that a demurrer was filed on behalf of the Secretary of State to each bill of complaint.

It appears further that upon a hearing’ on the demurrer as filed in the Circuit Court of Sangamon County the Judge of the Circuit Court indicated that the fees were properly and legally collected, were valid, and that he, the court, would sustain the demurrer of the Secretary of State to each bill filed.

The stipulation entered in this claim indicates that the claimants desired to hold the cases in the Circuit Court of Sangamon County in abeyance pending the appeal of certain other cases, but that the Assistant Attorney General who had charge of the cases in the Circuit Court insisted upon the dismissal of the cases of the claimants herein unless appeals were had from the decision of the Circuit Court, and that thereupon claimants dismissed their cases in the Circuit Court.

Claimants now ask for an award of the various amounts by this Court of Claims on the theory that the Act involving the payment of the franchise taxes paid by them was subsequently held invalid by the Supreme Court of Illinois in cases appealed by other corporations. It appears also from the briefs and arguments submitted by the claimants that the facts involving the appeal in the cases wherein the corporations were successful Avere not identical nor the same with the facts involved in their OAvn cases, and claimants even admit that perhaps the Supreme Court would not have determined the Act unconstitutional or invalid upon the facts as involved in their own cases, since all of their authorized capital stock was issued.

It seems inconsistent that the claimant should ask an award and the return of their moneys in this court when they admit, in effect, that they would not have been successful in obtaining the return of those moneys in the Supreme Court of the State of Illinois.

Claimants also advance the theory that the cost of an appeal Avould have been prohibitive in these cases. It is exceedingly difficult as a practical matter to decide whether or not the cost of an appeal would be prohibitive in the above entitled claims. It perhaps would he prohibitive in the instance of a claim for the amount of $150.00, but would not be prohibitive for the amount of $1,000 or more. This court, however, will not pass upon such a proposition since it is undoubtedly true that recourse to courts of superior jurisdiction is the right of all litigants and the cost thereof cannot be considered as an element of duress and compulsion in the payments of taxes.

The court has often held that taxes voluntarily paid cannot be recovered in this court. It has also held that if a claimant has not exhausted its remedies in courts of general jurisdiction that the amounts involved cannot be recovered in this court.

It is the opinion of this court that claimants in this case have not exhausted their legal remedies in the courts of general jurisdiction since they had the opportunity to appeal but determined not to do so.

It is therefore ordered that the above mentioned claims be disallowed and that this case be, and it is hereby dismissed.


text:
    (No. 1302
    Joseph P. Farrell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 7, 1929.

      Rehearing denied January 15, 1931.

      Ellis, Western & Brittain, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant was employed by the State as a laborer in maintenance work on one of the State highways, near Elgin. While engaged with other employees in marking the traffic line on the pavement he fell from a truck and fractured his right leg. The injury occurred June 10, 1927, and the next day he was taken to the Sherman Hospital at Elgin where he remained until August fifth following. He received surgical attention while at the hospital by Dr. W. S. Brown and also for a considerable time after he left. The hospital bill introduced in evidence is $201.50 and Dr. Brown’s bill, also introduced, is $401.00. Claimant in his declaration asks an award for $4,000.00 to compensate him for his injury, basing his claim upon the provisions of the Workmen’s Compensation Act. The provisions of this Act apply to the State when it is engaged in any enterprise or business declared by Section 3 of the Act to be extra hazardous. Under paragraph 1 of that section the maintenance of one of the paved highways of the State is an extra hazardous enterprise or business.

Claimant was receiving from the State at the time of his injury an average weekly wage of $30.25 and was paid at that rate during all the time he was incapacitated from work, the total payments amounting to $605.00. On October 31, 1927, he went back to work for the State at the same wage and worked until February 14, 1928, when he quit of his own volition, having secured other employment.

Sub-section (A) of Section 8 of the Workmen’s Compensation Act provides the employer shall provide the necessary first aid medical and surgical services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the injury. Sub-section (b) of section 8 provides the employee shall be paid 50 percent of his earnings during the period of his temporary total incapacity, but not less than $7.50 per week nor more than $14.00 per week. Sub-section (d) of section 8 provides that Avhere the employee is partially incapacitated he shall receive 50 percent of the difference between the average amount which he earned before the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident. “The object of this section of the statute is to compensate the injured employee for his reduced earning capacity, and if the injury does not reduce his earning capacity he is not entitled to compensation. There is no intent expressed in the statute to alloAV compensation for pain and suffering.- The phrase, ‘or is able to earn in some suitable employment or business’, was added to the section to prevent a person from loafing or refusing to work in order to collect compensation.” (Groveland Coal Co. v. Industrial Com., 309 Ill. 73.) An employee is physically able to work Avhen he can do so without seriously endangering his health or life. (Voight v. Industrial Com., 297 Ill. 109; St. L. & O’F. Coal Co. v. Industrial Com., 321 Ill. 117.)

The evidence shows claimant has fully recovered from his injury and was able to earn and did earn as much after his accident as before. “When an employee is physically able to Avork and is able to earn in a suitable employment the same Avages as he received before he was injured an award for partial incapacity is not justified. ’ ’ (Paradise Coal Co. v. Industrial Com., 301 Ill. 504.) Claimant testified that he is not able to do the same work, since his injury that he could do before. That is not material. If he is able to earn in any suitable employment or business as much after his injury as he earned before it then he is not entitled to an aAvard.

Claimant also testified his injury had decreased his earning power more than half. This testimony was objected to, and is not competent. (Old Ben Coal Co. v. Industrial Com., 293 Illl. 524.)

Approximately twenty Aveeks intervened between the date claimant Avas injured and the date he returned to work. For that period the maximum amount he was entitled to receive as compensation was $280.00. It is conceded he was paid $605.00. Deducting the $280.00 compensation he was entitled to leaves $325.00, to cover hospital and surgical services. The employee has the right to secure his own hospital and surgical services at his own expense. So far as this record shows he did so. The employer is not liable for all hospital, medical and surgical services the employee may elect to secure. His liability is limited “to that which is reasonably required to cure or relieve from the effects of the injury.” We think $325.00 was amply sufficient to have secured the necessary hospital and surgical aid required in this case.

The liability of the State for injuries to its employees while engaged in extra hazardous enterprises is the same as that of private citizens or corporations engaged in similar enterprises, and is to be determined “in accordance with the rules prescribed in the act commonly called the Workmen’s Compensation Act.” Under the provisions of this Act claimant is not entitled to any more compensation than he has received.

The award is therefore denied and the claim dismissed.

On January 15, 1931, upon petition for rehearing the following additional opinion was filed:

Claimant has filed a petition for rehearing, which is to a large extent but a re-argument of the case. Under the rules of this court, argument in support of a petition for rehearing is not permitted. The reason for this rule is, the State has no opportunity to be heard upon the petition. However, we have again examined the record in the case and find no reason for granting a rehearing and the petition is therefore denied.


text:
    (No. 1097
    Geneva Beard, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1928.

      Rehearing denied March 11, 1931.

      E. J. Branson, for claimant.
    Oscar E. Oarlstrom, Attorney General; Frank E. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court.

The claimant is bringing action here for damages on account of injuries' received while riding as a passenger in an automobile near Chester, Illinois, in Sec. 75 of Hard Eoad No. 3. She claims she left her home at six-thirty or seven o’clock in the evening on Oct. 11th, 1924, on her way to a carnival. On the way back about two miles out of Chester on the same evening on hard road Eoute No. 3, she claims that the car in which she was riding ran into a stump that was in the center of the pavement which caused the car to turn over and resulted in breaking the right leg of the claimant. The accident is of course a regrettable one. The claimant alleges there was no light on the stump in question and that the stump was placed there by one of the engineers in charge of the work and it is further alleged by claimant that this road was open for local travel by the State of Illinois through orders of Mr. Sewell, State engineer, the State engineer in charge of the construction of this new road. It appears however by the declaration of claimant that because of piles of gravel having* been placed on the right side of pavement, the driver of said touring car was obliged to drive on the left side of said pavement. This thought suggests to this court the fact that claimant or the driver of her car should be placed upon his guard to use every possible caution.in attempting to travel upon this road, and it appears from the record in the testimony of Mr. Midgaas who was charged with placing* this stump on the highway, that he did not place any stump of any kind'in any place on the highway excepting one stump in the middle of said road and placed a sign on which it said, “Barricade — 400 feet” or “Slow” on that stump.

This court is impressed with -the fact that the building of a great highway system entails a good many difficulties and we understand the anxiety of the public to travel over a new road as early as possible, but we are impressed from the record that in view of the fact of the gravel or other road material being on the road, that any person travelling over such road should be filled with the highest caution and it would seem that if a driver exercised a caution that should be required on a new road of this character that he might observe an obstruction of this kind, and from the record we are also of the opinion that this road had not been taken over by the State through its Department of Public Works and Buildings, and that being the case the State would not be liable according to our judgment.

Therefore taking the entire record into consideration this court is of the opinion that this claim should be disallowed.

On March 11,1931, upon petition for rehearing the following additional opinion was filed:

This claim coming on for rehearing and the court after consideration of the petition for rehearing finds no good reason to change the opinion heretofore entered. Therefore the petition for rehearing is denied.


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    (No. 1300
    Karl Axel Henrick Larson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

      Rehearing denied March 11, 1931.

    E. P. Field, for claimant.

      Oscar E. Carlstrom, Attorney General; Frank E. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim for damages alleged to be done to crops on account of the improper construction of hard road Eoute 3, which is supposed to have caused poor drainage of the claimant’s land. The land in question has been termed “low land on general level” and from the evidence disclosed by the record it appears that in dry years, crops could always be raised and in wet years they could not raise crops and it does appear that the years in question were exceedingly wet years.

The State contends that it would be an impossibility to build a bridge that would take care of the situation following extraordinary heavy rains. The Attorney General also contends that the damages to the crops of this claimant were caused only on low land after extra heavy rainfalls; that the State is not responsible for damages therefrom and from all the evidence this court is of the opinion that the contention of the Attorney General is correct and it is further the opinion of the court that the building of these hard roads throughout the State has been of considerable value to adjacent property owners which ought to be considered wherein there is a claim for damages as in this case.

Therefore it is recommended that this claim be denied and the claim dismissed.

On March 11, 1931, upon petition for rehearing the following additional opinion was filed:

This claim coming on for rehearing and the court after consideration of the petition for rehearing finds no good reason to change the opinion heretofore entered. Therefore the petition for rehearing is denied.


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    (No. 1321
    James Cunningham, Son & Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1931.

      Brown, Hay & Stephens, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court.

This is a claim brought to recover for certain franchise taxes alleged to be improperly levied and collected by the Secretary of State. It appears that the claim arose from taxes paid in 1922 and that this claim was filed on June 29th, 1928.

The Attorney General in behalf of the State of Illinois files a demurrer on the theory that more than five years elapsed.

There can be no question as to this point as Section 10 of an Act to Create the Court of Claims sets forth specifically that all claims must be filed within five years. Therefore the demurrer is sustained and claim dismissed.


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    James Cunningham, Son & Company, 1322; A. G. Spalding & Bros., 1323; Blaw-Knox Company, 1324; Certain-Teed Products Corporation, 1325; Dennison Manufacturing Co., 1326; Graton & Knight Company, 1327; The R. M. Hollingshead Co., 1328; United Profit Sharing Corporation, 1329; United States Envelope Company, 1330, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1931.

    Brown, Hay & Stephens, for claimants.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

By request of claimants the above cases have been combined as they are all of a similar nature and involve similar principles.

It appears that the claimants complain that the Secretary of State of Illinois wrongfully collected franchise taxes in each instance and therefore wish to recover back the taxes so alleged to be wrongfully collected.

In certain of the cases, the Attorney General raises the question of the Statute of Limitation which in the court’s opinion has merit. However, the strongest contention and which the court believes is a good defense is that claimants did not proceed with their remedy at law. This is the position taken by this court in numerous cases heretofore, passed on and we fail to find any reason in these claims where this court should depart from that rule.

Therefore this court recommends that all of the above named and numbered claims be disallowed.


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    (No. 1563
    Earl Paddock, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1931.

    A. V. Smith, for claimant.
    Oscar E. Cablstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant is asking an award against the State for $124.80 to reimburse him for loss sustained on account of the sale of a bull infected with tuberculosis. The bull, a registered Holstein animal, was tested by the State Veterinarian and found to be tubercular. On the 19th of July, 1929,- the bull was condemned and claimant ordered to dispose of it within 30 days, as the law provides. The animal was appraised at $350.00. On Angnst 22, 1929, it was sold to the Central Live Stock Commission Company at Chicago for $162.79, resulting in a loss of $187.21. The Bovine Tuberculosis Act, in force July 1, 1929, provides the State shall pay one-third of the difference between the appraised value of a tubercular animal and the proceeds of the sale of the salvage, not exceeding $70.00 for a pure-bred animal, where the United States assists in the eradication of tuberculosis in cattle and two-thirds of such difference, not exceeding $140.00 for a purebred animal, where the United States does not cooperate with the State in the eradication of that disease.

Section 8 of that Act provides: “No compensation shall be paid to any person for an animal condemned for tuberculosis: (4) If the owner retains the animal for more than thirty days after it has been adjudged infected with tuberculosis. ’ ’

Cattle infected with a disease such as tuberculosis become a public nuisance and the State has the power, if deemed necessary to the public welfare, to order their destruction without compensation to the owner. (Durand v. Dyson, 271 Ill. 382; Mayfield v. State, 5 Ct. Cl. 226.) And if the State-sees fit to limit the amount of compensation it will pay to the owner of property destroyed in the exercise of such power or to make payment of compensation contingent upon compliance by the owner with certain imposed conditions no one can question its authority to do so. Under the maxim “the safety of the people is the supreme law” the State had the right to order claimant’s animal destroyed without paying him any compensation therefor. The statute is so plain it cannot be misunderstood. It provides compensation shall not be paid if the owner retains the animal more than thirty days after it has been adjudged infected. That is the law and this court has no power to change it nor to disregard it. The Legislature deemed thirty days ample time for owners of such diseased animals to dispose of them. There is certainly nothing in this record to show claimant could not have-disposed of his animal within the time fixed by the statute. But, be that as it may, the statute is plain and mandatory,, and claimant not having complied with its provisions is not. entitled to any award.

The claim is therefore denied and the case dismissed.


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    (No. 1618
    Geo. B. Smith Chemical Works, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1931.

    Evan L. Searcy, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant is asking* an award for the sum of $6,185.05 balance alleged to he due it for repair work done on buildings at the Lincoln State School and Colony at Lincoln in 1928. Claimant’s total bill for the work done was $16,170.69 all of which was paid except the hills for resurfacing floors for which payment was not made, because the work was improperly done. The record does not disclose whether or not claimant had a written contract for this work but it does show no bid was submitted by it and that the work was not let to the lowest responsible bidder as the statute plainly requires. When claimant undertook to do the work it was bound to do it in a good workmanlike manner. The evidence of claimant shows conclusively that it did not so perform the work of repairing* the floors and that it knew it was not doing such work in a proper manner. It seeks to justify its failure in that regard by saying the officials in charge of the school were urging it to complete the work as quickly as possible. There is no evidence, however, that these officials ever urged or requested the work to be done in an improper manner. But even had they done that claimant would not have been justified in following their directions for they had no power or authority to say how the work should be done. The statute specifically provides that the Department of Purchases and Construction shall have the supervision and control of the construction and repair of all buildings belonging to the State. Claimant was fully aware of this provision of the law and knew the superintendent of the school had no control over the manner in which the work should be done.

The evidence shows that it will cost between $800.00 and $1,500.00 to make the repairs necessary to put the floors in the condition in which claimant should have left them. The cost of doing that should be borne by claimant. We think $1,000.00 is the probable cost of that work and will deduct that sum from claimant’s demand.

It is therefore ordered that claimant be awarded the sum of $5,185.05.


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    (No. 1654
    Bibb MacNeil Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 17, 1930.

      Rehearing denied March 11, 1931.

    Joseph L. Moore, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is for $294.00 alleged excess franchise taxes and penalties paid by claimant for. the years 1927, 1928 and 1929. The declaration does not charge the taxes were paid under duress or protest. So far as appears from the decf) laration the taxes were voluntarily paid. The Attorney General has demurred to the declaration on behalf of the State, and the cause is submitted on the declaration and demurrer.

It is the settled law of this State that taxes voluntarily paid cannot be recovered back. This doctrine has been announced by our Supreme Court and by this court so often that a citation of authorities is unnecessary. It is equally well settled in this State that a plaintiff or claimant must state a cause of action in his declaration, — must set forth therein such a state of facts that if proven will show he is entitled to recover. Admitting everything set forth in claimant’s declaration to be true it is not entitled to recover the taxes sued for. The demurrer is therefore sustained and the case dismissed.

On March 11, 1931, upon petition for rehearing, the following additional opinion was filed:

We have considered the grounds set forth in the petition for rehearing and find no reason for changing the views expressed in the opinion filed in the case. The rehearing is therefore denied.


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    (No. 1681
    National Fire Proofing Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1931.

    McIlvain, Murphy & Mohn, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant is a foreign corporation which was licensed to do business in Illinois. On April 9, 1930, claimant filed its certificate of withdrawal, having ceased to do business in this State. Thereafter the Secretary of State, through an oversight, sent a bill to claimant for the franchise tax for the year beginning July 1, 1930, and ending June 30, 1931, amounting to $644.29, and the same was paid. It is admitted by the Secretary of State that no tax was due from claimant and its payment was the result of a mutual mistake, and the Attorney General concedes claimant is entitled to have it refunded.

Claimant is therefore allowed an award in the sum of $644.29.


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    Ludwig Svoboda, Frantiska Mikulecka, John Svoboda, and Anton Svoboda, 1700; Nellie G. Halliday, 1701; Edna Elma Cone, 1703; Sherman Scott, 1703; Mathilda Hieronymus Oglesby, 1704; Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1931.

    Claimants pro se.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimants in these cases are the heirs of deceased soldiers of the World War to whom compensation had been allowed under the provisions of the Act approved May 3, 1921, and generally called the Soldiers’ Bonus Act. After the compensation had been allowed each of the soldiers died before the vouchers issued to them had been paid. Section 3 of the Act terminating the Service Recognition Board, approved July 11, 1927, provides that in all cases where compensation has been allowed by the recognition board but payment has not been made it is the duty of the Adjutant General, as soon as satisfactory proof is furnished him, locating the soldier or his heirs, to certify such fact to the State Treasurer who shall • make payment of the sum so allowed by the recognition board to the person entitled thereto.

After the passage of the Act of July 11, 1927, and before the Adjutant- General had approved and certified their claims in accordance with its provisions the appropriations made for the payment of compensation payable under it had lapsed so that no funds were available out of which to pay them. Claimants thereupon filed their- claims in this court asking that awards be allowed them for the respective amounts of compensation allowed said deceased soldiers and remaining unpaid. The Attorney General concedes the claims are just and that awards should he made the respective claimants for the amounts asked by them respectively.

Claimants Ludwig Svoboda, Frantiska Mikulecka, John Svoboda and Anton Svoboda are the heirs at law of Frank Svoboda to whom compensation in the sum of $267.50 had been allowed by' the Service Becognition Board and who died before it was paid. The claims of these persons, as heirs of such deceased soldier, was approved by the Adjutant General, as required by said Section 3, on May 26, 1930. It is therefore ordered that they be allowed the sum of $267.50 to be paid to them jointly.

Claimant Mrs. Nellie G. Halliday is the sole heir at law of Henry Evans Halliday, Jr., to whom compensation in the sum of $106.50 had been allowed by the Service Becognition Board and who died before it was paid. The claim of Mrs. Halliday, as heir of said deceased soldier, was ap'proved by the Adjutant General, as required by said Section 3, on January 13, 1930. It is therefore ordered that she be allowed the sum of $106.50.

Claimant Mrs. Edna Elma Cone is the sole heir at law of Jean Bichard Cone to whom compensation in the sum of $235.50 had been allowed by the Service Becognition Board and who died before it was paid. The claim of Mrs. Cone, as heir of said deceased soldier, was approved by the Ad- ■ jutant General, as required by said Section 3, on December 20,1929. It is therefore ordered that she be allowed the sum of $235.50.

Claimant Mrs. Mathilda Hieronymus Oglesby is the sole heir at law of Charles Byron Oglesby to whom compensation in the sum of $241.50 had been allowed by the Service Becog- ' nition Board and who died before it was paid. The claim of Mrs. Oglesby, as heir of said deceased soldier, was approved by the Adjutant General, as required by said Section 3, on October 24, 1930. It is therefore ordered that she be allowed the sum of $241.50.

Claimant Sherman Scott is the sole heir at law of Bobert Scott to whom compensation in the sum of $254.00 had been allowed by the Service Becognition Board and who died before it was paid. The claim of Mr. Scott, as heir at law of said deceased soldier, was approved by the Adjutant General, as required by said Section 3, on January 27, 1930. It is therefore ordered that he be allowed the said sum of $254.00.


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    Joseph Keig, 1443: John H. Garnsey, 1444; A. A. Offerman, 1445; William C. Mooney, 1446; Francis J. Loughran, 1447; Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 25, 1929.

      Rehearing denied April 16, 1931.

    John L. Walker, for claimants.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

All the claimants appear to be represented by the same attorney and their causes of action can be considered jointly as their claims are based upon the same principle.

It appears that certain prisoners were confined in the Illinois State Penitentiary and escaped. Afterwards they were caught and indicted by the Circuit Court of Will County. Afterwards they were brought to trial in the Circuit Court of Will County. It appears that claimants were appointed by the court to represent the defendants under said indictment and according to the allegations made spent a large amount of time and professional effort in behalf of the culprits. It is alleged and claimed also that on account of the location of the penitentiary at Joliet and the consequent necessity of trying this line of cases in that county that a burden was placed upon the bar of that county. This court and its members has had like experience in being appointed to defend those charged of crime and of course accepted the mandates of the court faithfully although perhaps reluctant-. ly, as a member of the bar naturally desires to be compensated. It is a distinction to be designated by the court to defend. It is also a duty that every lawyer must face and this court is of the opinion that the bar of Will County should of course meet the additional requirements of their community. This institution and those of a similar character contribute to the advantage at least in some respects to a community. The business men and tradesmen naturally profit and these advantages should offset to some extent the burdens that might come to members of the bar. It is the further opinion of the court that in view of the above statements that equity and good conscience should not prevail.

Of course it cannot be contended that there is any legal obligation on the part of the defendant The State of Illinois, and it is the opinion of the court that the demurrer filed by the Attorney General in each of the above cases should be sustained and it is therefore considered that the demurrer be sustained in each of the aforementioned cases.

On April 16,1931, upon petition for rehearing, the following additional opinion was filed:

The above entitled cases being again brought to the attention of this court upon petition for rehearing and the court finds that there is not sufficient reason shown to grant the same.

Therefore the petition for rehearing is denied.


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    (No. 1535
    The Ohio Casualty Insurance Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1931.

      Rehearing denied April 16, 1931.

      Doyle, Sampson & Giffin, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant is an Ohio corporation organized to write certain kinds of insurance. On July 21, 1921, it was licensed to do business in Illinois. The laws of Ohio require all foreign companies doing an insurance business in that State to pay a tax of 2y2 per cent of the premiums received in the State during the preceding calendar year. The law of Illinois provides that foreign corporations doing an insurance business in this State shall pay the same rate of tax as is imposed by the State where such corporation is organized as Illinois corporations doing an insurance business in that State. .The effect of this provision of the Illinois law is to impose upon Ohio insurance companies doing business iñ Illinois the same tax an Illinois insurance company has to pay for doing business in Ohio. On May 24, 1927, the Ohio law was amended to increase the tax from 2y2 per cent to 3 per cent of the premiums received during the preceding year. This change in the law of Ohio automatically changed the law of Illinois in so far as it related to Ohio companies doing business in Illinois. On June 16, 1927, the Superintendent of Insurance of Illinois notified claimant that its tax for the year beginning July 1, 1927, was $5,287.34. On May 5, 1928, the Superintendent of Insurance notified claimant that its tax for the year commencing July 1, 1928, was $7,676.70. Each notice stated that the tax was assessed under the provisions of the Illinois law entitled “An Act in relation to the taxation of non-resident corporations, companies, and associations for the privilege of doing an insurance business in this State, approved June 28, 1919, in force July 1, 1919,” and that if there were any objections to the assessment they would be heard by the Department of Trade and Commerce, and also stated that the tax had been computed at 3 per cent of the gross premiums received in Illinois during the preceding year ending December 31st. The tax for 1927 was paid by claimant on July 8th of that year and the tax for 1928 on June 25th of that year. No objections were made to the taxes and they were voluntarily paid without any protest on the part of claimant. On December 12, 1928, the Supreme Court of Ohio held that the law increasing the rate of tax from 2% to 3 per cent was not retroactive and that the new rate only applied to premiums received after it went into effect. Thereafter claimant filed this action asking that $1,397.58 of the taxes paid for the years 1927 and 1928 be refunded on the ground that it paid $881.22 more than was legally due for the year 1927 and $516.36 more than was due for 1928.

Claimant contends, in its argument, that these alleged overpayments “were paid under a mistake which was mutual between the claimant and the insurance superintendent.” There is no charge in the declaration that the payments were paid by mistake, neither are there any allegations in the declaration from which it can be inferred they were paid by mistake. So far as the declaration discloses the payments were voluntarily made, and if they were they cannot be recovered back for it is fundamental that one who pays a tax voluntarily cannot maintain an action for its recovery. If these taxes were in fact paid by mistake that fact should have been set up in the declaration. It is the duty of a litigant to state his cause of action in his pleading and his proof must correspond to his declaration. Proof without a proper declaration will not sustain a judgment. The declaration in this case is fatally defective and we might well sustain the demurrer and dismiss the suit without further discussion. But as evidence has been taken and the cause argued on the facts and law we will decide the case on its merits.

Claimant contends the alleged excess taxes were paid under the misapprehension of the law of Ohio, — that the Superintendent of Insurance and claimant both made a mistake in construing the amendment of the Ohio statute increasing the rate of tax from 2% to 3 per cent of the gross premiums received the preceding year, and.that such mistake was one of fact and not of law. It may be conceded that a foreign law is a fact to be proven, when its proof is necessary, like any other fact. But that question does not enter into this case. The question here is did claimant make a mistake in the construction of the law of Illinois. The taxes which claimant paid were assessed under and in accordance with the statute of this State, and were paid by claimant because it believed the law of Illinois required it to pay them. The Superintendent of Insurance notified claimant each year the amount of tax that had been assessed against it and the rate at which it had been assessed and stated that objections thereto would be heard if claimant desired to make any objections. Claimant made no objections but paid the tax without protest. It is clear that the payment was voluntary. When claimant paid the taxes it believed the amount paid was legally due under the law of Illinois. If claimant was mistaken as to the amount of tax it owed such mistake was a mistake of law and not of fact. There is no pretension that any fraud, deceit or coercion was used to induce claimant to pay the tax. The law is settled in this State that the payment of a tax will be deemed voluntary where it is paid with full knowledge of the facts and in the belief that it is legal. (Yates v. Royal Ins. Co., 200 Ill. 202.) Taxes so paid cannot be recovered, even though they are illegal, in the absence of a statute authorizing such recovery. (Richardson Lubricating Co. v. Kinney, 337 Ill. 122; Ill. Merchants Trust Co. v. Harvey, 335 Ill. 284.) As there is no statute in Illinois authorizing a recovery of these taxes claimant is not entitled to have them refunded.

Claimant urges that “as a matter of equity and good conscience” it ought to recover these taxes because “the State has received money to which it was never entitled. ’ ’ Whether or not claimant paid more taxes than were legally due is a question which it is not necessary for us to decide. If the Superintendent of Insurance properly construed the law the taxes he assessed against claimant were all legal. If, however, he assessed a greater sum than was due and claimant voluntarily paid it then the State is entitled to retain it and neither law nor equity will aid claimant to recover it.

In no view of the case is claimant entitled to an award and its claim is denied and the case dismissed.

On April 16, 1931, upon petition for rehearing, the following additional opinion was filed:

While the court did say in the opinion in this case that we might well sustain the demurrer and dismiss the suit we did not do so but decided the case on its merits.

The petition for a rehearing in so far as it applies to the decision of the case is bnt a re-argument of the questions heretofore argued and decided, and no questions of fact or law are presented that were not before the court and considered by it when the decision was rendered. The petition for a rehearing is denied.


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    (No. 1617
    I. B. Curran, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1931.

    I. B. Curran, pro se.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent:
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears from the records and affidavit of claimant that there was an arrangement between claimant and defendant for the rental of the building to be used by the State Biological Laboratory of the Department of Public Health. There appears to be no dispute that the quarters were used by the State of Illinois during the months of April, May and June, 1929, at a rental of $12.50 per month. There is no dispute in the records as to the fact that said amount is reasonable for the use of said quarters. The State of Illinois received the benefit of this property during the months in question and therefore the court recommends that claimant be allowed the sum of Thirty-seven — 50/100 ($37.50) Dollars.


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    (No. 1630
    Shelly Kelly, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1931.

      Frank J. and James T. Burns, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank B. Eagle-ton and Carl I. Dietz, Assistants Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

On December 24, 1929, claimant was engaged in clearing State Bond Issue Boute No. 49 near Kankakee with a tractor and snow plow. His left foot was caught in the machinery and severely injured. As a result of the injury he was required to expend $98.00 for surgical and medical services and to pay a hospital bill of $10.00. He was totally incapacitated for 13 weeks, and partially incapacitated for 135 weeks. His average weekly earnings were $33.00. His injury arose out and in the course of his employment, and he was engaged in work declared extra hazardous by the provisions of the Workmen’s Compensation Act. As that Act applies to the State when it is engaged in work declared to be extra hazardous claimant is entitled to recover. Under the evidence in this case he is entitled to an award of $1,100.00. It is therefore ordered that claimant be and he is allowed an award of $1,100.00.


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    (No. 1636
    Frank Meister, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1931.

    John A. Mathew, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz and Frank B. Eagleton, Assistants Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant was employed by the State in work declared by the Workmen’s Compensation Act to be extra hazardous and, on December 27, 1929, received an injury to the second finger of his left hand. The injury arose out of and in the course of his employment, and the State is liable to pay him compensation therefor. The injury to the finger is shown to be permanent and to seriously interfere with its use. We think, under the evidence, he should be awarded $390.00. It is therefore ordered that claimant be and he is awarded the sum of $390.00.


author: Mj\ Justice Thomas

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    (No. 1652
    Arthur Boyd, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1931.

    Glenn O. Brown, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank B. Eagle-ton, Assistant Attorney General, for respondent.
   Mj\ Justice Thomas

delivered the opinion of the court:

On October 26,1929, while employed as a workman for the State in repairs being made by the State to the Anna State Hospital claimant received an injury to his left eye. The injury arose out of and in the course of his employment. His physician’s charges were paid by the State. The evidence shows he has suffered a loss of three fourths of the sight of the eye. At the time of the injury the State was engaged in an enterprise declared by Clause 1 of Article 3 of the Workmen’s Compensation Act to be extra hazardous and is, therefore, liable to pay claimant the compensation provided in that Act to be paid a workman for such injury. The amount due claimant, under the evidence, is $810.00. It is therefore ordered that claimant be and he is allowed an award of $810.00.


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    (No. 1662
    William W. Wheelock and William G. Bierd, Receivers, Chicago & Alton Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1931.

    William L. Patton, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim filed to recover for payment of undercharge upon a shipment of one steam shovel and one carload of sand amounting to One Hundred Forty-nine 64/100 ($149.64) Dollars.

The Attorney General comes and offers no dispute relative to the claim here presented and recommends that the award be allowed and therefore this court recommends that the claimant be allowed the amount claimed the sum of One Hundred Forty-nine 64/100 ($149.64) Dollars.


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    (No. 1666
    The Pioneer Creamery Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1931.

    George H. White, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim for refund of corporate franchise tax in the sum of Three Hundred Ninety 30/100 ($390.30) Dollars, paid by claimant on June 27th, 1930.

It appears that claimant adopted a resolution to dissolve the said corporation at a special meeting held on July 10th, 1930, and it is alleged that such certificate for dissolution was mailed to the corporation department Secretary of State’s office on or about July 15th, 1930. The Attorney General asserts that the records of the Department discloses no communication during the period of June 16th to August 5th, 1930, relative to said certificate for dissolution. The Attorney General further contends that the claimant corporation was not legally dissolved until the 25th day of August, 1930.

This court is of the opinion that corporations are as a rule legally advised in the conduct of their business and it would appear that they should exercise due diligence in all their corporate matters. This court, in view of the fact of the Attorney General’s objections, is of the opinion that no redress can be furnished to claimant, in view of all the facts disclosed by the record in this case.

Therefore the claim is disallowed.


author: Mr. Chibe Justice Clarity

text:
    (No. 1667
    Holland Butter Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1931.

    George H. White, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Chibe Justice Clarity

delivered the opinion of the court:

This is a claim for refund of corporate franchise tax in the sum of Forty-nine 17/100 ($49.17) Dollars, for period commencing July 1st, 1930 and ending June 30th, 1931. It appears by stipulation that .said corporation ceased doing business after July 10th, 1930. It is recommended by the Attorney General that claim for refund as above set forth be allowed.

Therefore it is recommended by this court that claimant be allowed the sum of Forty-nine 17/100 ($49.17) Dollars.


text:
    (No. 1673
    Western Indiana Gravel Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1931.

    R. R. Bookwaltbr, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Chibe Justice Clarity

delivered the opinion of the court:

This is a claim made for shipments of gravel which were ordered under the terms of a written order or contract dated March 22nd, 1929, signed by L. H. Buckley of the Division of Purchases and Supplies. There seems to be no objection made by the Attorney General as to this claim amounting to $158.59. And it further appearing that the gravel was furnished and used by the State under the direction of the highway officials.

Therefore it is recommended that claim be allowed in the sum of One Hundred Fifty-eight 59/100 ($158.59) Dollars.


text:
    (No. 1696
    Edmund John Metts, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1931.

      Michel & Barnes, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant was employed by the State in a business declared by the Workmen’s Compensation Act to be extra hazardous. And on August 28, 1930, while so employed was seriously injured. He had a compound fracture of both bones in his left leg, a compound fracture of his left wrist and a multiple fracture of his ribs and was otherwise bruised and lacerated. The injuries arose out of and in the course of his employment, and the State is liable to compensate him for them. His hospital and physician’s bills amounted to $697.50. He has recovered from all the injuries except the one to his leg, and we have decided that he should be allowed compensation in the sum of $1,825.00. It is therefore ordered that claimant be and he is awarded the sum of $1,825.00.


text:
    Maxine Browning, 1023; Allen Williams, by the Foreman Trust & Savings Bank, 1038-1713; Samuel G. Harris, 1071, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1931.

    Lewis E. Johnson for Maxine Browning, Lynn & Korn for Allen Williams, Henry H. Proctor for Samuel G. Harris.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

In the above entitled matters this court has made allowances therein for the reasons therein given in the opinion.

It has been directed to the attention of this court that the amounts, as heretofore allowed in these causes, have not been as muck as was proper and desired. That being true, the court has permitted the above entitled causes to be reopened and recommends additional amounts in these cases, in the following sums:

Allen Williams, No. 1038, $1,000.00.

Samuel G. Harris, No. 1071, $1,000.00.

No amount is allowed in the Maxine Browning case, No. 1023.

The new cases involving the same person and the same injury, which have recently been filed, are hereby dismissed, being numbered as follows: Maxine Browning, No. 1023; Allen Williams, No. 1713; and Samuel G. Harris, No. 1071.


text:
    (No. 1362
    Frank Hartkorn, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1930.

      Rehearing granted May 28, 1930.

      Modified opinion filed May 14, 1931.

    Mills, Richardson & Helffrich, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears that the basis of this claim is that the property of the claimant, was damaged on account of the building of a hard road in front of claimant’s premises, that on account of such improvement, water was diverted onto the claimant’s property.

We are of the opinion from all of the evidence in the case, that there is no material damage to claimant’s premises, on account of the construction of this road. On the contrary, the court believes, that hard roads generally add value to property, and that the increased value of the premises in question, would greatly compensate the claimant for any inconvenience that might be occasioned by the improvement in question.

Therefore, the court recommends that the claim be disallowed.

On May 28, 1930, upon motion of claimant an oral order was entered granting a rehearing for the purpose of taking additional testimony to determine the amount of damages.

On May 14,1931, the following additional modified opinion was filed:

It appears from additional evidence taken that claimant suffered damages by reason of hard road construction on S. B. I. Route No. 7. The Attorney General comes and stipulates and agrees that claimant suffered damages in the sum of $2,500.00.

The court, therefore, recommends that claimant be allowed $2,500.00.


text:
    (Nos. 1393-1755
    Ozell Bush, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1931.

    Benjamin G. Pollard, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

In the above entitled matter this court has made an allowance therein for the amount heretofore set forth and given the reasons therein.

It has been directed to the attention of this court that the amount, as heretofore allowed in this cause, has not been as much as was proper and desired. That being true, the court has permitted the above entitled cause to be reopened apd recommends an additional amount in this casé in the sum of $1,000.00.

The case involving the same person and the same injury, which has recently been filed, is hereby dismissed, being numbered as follows: Ozell Bush, No. 1755.


text:
    (Nos. 1410-1614
    Aaron Wells, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1931.

    Harris & Harris, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This court has heretofore, at the January session, A. D. 1929, filed an opinion in this cause.

Since that time a new claim has been filed in this court, between the same parties, for the same injuries, and is numbered 1614.

Following the filing of the second case, motion was made on behalf of the claimant to reopen the old case because of new evidence not considered on the first hearing, which was allowed by the. court. *On May 12,1931, the Attorney General filed a stipulation and statement in the old case, after which this court found that this claimant was injured in line of duty, in the course of his employment while an employee in the Division of Highways of the Department of Public Works and Buildings of the State of Illinois, under the Workmen’s Compensation Act.

In said stipulation and statement the Attorney General suggests that if this court found this claimant to be working under the Workmen’s Compensation Act, while employed by the State of Illinois, that after proper deductions were made this claimant would be entitled to Two Thousand Dollars ($2,000.00), all of which stipulation and statement whs approved by the claimant herein.

We therefore recommend an allowance in this cause, in accordance with said stipulation, in the sum of Two Thousand Dollars ($2,000.00). The new case in this cause, being No. 1614, is hereby dismissed.


text:
    (No. 1461
    J. M. Blackford, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1931.

    Edwabd Pbee, for claimant.
    Oscar E. Cablstbom, Attorney General; Fbank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

On November 9, 1925, claimant was employed in the capacity of house-father at the St. Charles School for Boys at a salary of $80.00 per month. He was later promoted to the position of night deputy at a salary of $125.00 per month. These positions were and are under the provisions of the State Civil Service Act. On January 9, 1928, claimant was discharged, the statement reciting his discharge was for refusing to obey orders. He contends his discharge was illegal, and is asking this court to award him the amount of his salary from January 9,1928.

Section 12 of the State Civil Service Act provides that no employee in the classified civil service of the State shall be removed, discharged or reduced in rank or pay by the appointing officer, except for just cause, and that the term “just cause” as used in that section means any cause which is detrimental to the public service other than political, racial or religious. The section also provides that an employee who has been discharged may file with the Civil Service Commission, within five days after his discharge, a statement in •writing alleging that his discharge was made for political, racial or religious causes, and the commission is then required to order a hearing upon the question. If, upon the hearing, the commission shall find the discharge was made for political, racial or religious causes it is required to enter an order reinstating the employee and directing the payment of all back salary due. If the commission shall find the discharge was not made for political, racial or religious causes the discharge shall stand and be final. Under the provisions of this section claimant had a full and adequate remedy to have the legality of his discharge passed upon by the officials appointed by law for that purpose. It will be noted the statute provides an employee may be discharged for “just cause” and that “just cause” means any cause detrimental to the public service other than political, racial or religious. The cause set forth in the statement was for refusing to obey orders. If he did refuse to obey orders such refusal would be detrimental to the public service. Claimant was given a copy of the statement showing the cause of his discharge. If he believed the statement was untrue and that his discharge was either for political, racial or religious reasons he should have filed with the Civil Service Commission a statement in writing alleging such facts and the commission would then have given him a hearing upon the question. He did not do so, and his discharge became final and effective. It is clear from the provisions of the Civil Service Act that the Legislature intended to clothe the Civil Service Commission with the sole authority to determine whether a discharged employee had been discharged for political, racial or religious causes and that the Court of Claims has no jurisdiction to pass upon the question.

The claim is therefore denied and the cause dismissed.


text:
    (No. 1486
    C. E. Carson Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1931.
    Justus Chancellor, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

The claimant files its claim for $73,319.34 for delays in completing its contract with the State of Illinois for the construction of Sections 16, 17 and 18 of ¡Hard Road Bond Issue Route No. 18 after it had entered upon performance by reason of a change of route made necessary by litigation forcing the State to change the route as originally platted and claimant had the contract to construct a concrete highway.

It is stipulated and agreed between the claimant and the legal representatives of the State of Illinois that the claimant was damaged in the sum of $48,496.53 on account of the. delays caused by litigation over the right of way which the State had not procured before the letting of the contract by the State of Illinois to complete the construction of the concrete road over said Sections 16,17 and 18 of S. B. I. Route No. 18.

On the request of the legal representatives of the State the court allows an award for $48,496.53.


text:
    (No. 1490
    County of Lee, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1931.

    Mark C. Keller for claimant.

      Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

The claimant files its claim for $1,100.00 for coroner’s and juror’s fees for inquests upon bodies of patients and inmates of the Dixon State Hospital at Dixon, Illinois, from May 28,1924 to March 16,1929. There is no statutory provision which obligates the State to reimburse counties where charitable institutions are located for such fees.

Without a statutory provision this court has no power to allow a claim of this kind. The claim is denied and the case dismissed.


text:
    (No. 1503
    Martha Scrivner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1931
    ‘ S choles, O’Connor & Dougherty, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant was employed as an assistant cook at the Peoria State Hospital. On December 7, 1928, while engaged in her work, she lifted a meat table drawer weighing about 25 or 30 pounds. She alleges lifting the drawer caused her to suffer a rupture of the lower portion of her abdomen, and has filed this claim for $5,000.00 damages.

In conducting penal, charitable and educational institutions the State is in the exercise of its governmental functions and is not liable for injuries received by its employees therein, in the absence of a statute creating such liability.

Claimant contends, however, in her brief that her case comes within the provisions of the Workmen’s Compensation Act. The Workmen’s Compensation Act applies to the State only when the State is engaged in a business declared to be extra hazardous by Section 3 of that Act. (Village of Chapin v. Industrial Com., 336 Ill. 461; Perry v. State, 6 Ct. Cl. No. 1246.) Conducting a hospital does' not come within any of the enterprises declared extra hazardous by that section.

The claim is therefore denied and the case dismissed.


text:
    (No. 1508
    Clara Hart Kennedy, Executrix of the Last Will and Testament of Thomas Kennedy, Deceased, Clara Hart Kennedy, Kaywin Kennedy, and Thomas Hart Kennedy, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1931.

    Kennedy & Kennedy, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for'respondent.
   Mr. Chibe Justice Clarity

delivered the opinion of the court:

It appears claimant suffered damages by reason of hard road construction on S. B. I. Koute No. 8. The Attorney General comes and stipulates and agrees that claimant suffered damages in the sum of $2,500.00.

The court, therefore, recommends that claimant be allowed $2,500.00.


text:
    (No. 1524
    A. R. Ransom, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1931.

    Frank E. Herrick, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-
    ton,- Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim for the loss of crops on one and one-half acres of ground in the year 1929 and inability to plant 4 acres on the same farm land in.1929 as a result of a drain line being destroyed which was under the jurisdiction of the Division of Highways. The files in the case do not disclose very many facts upon which the court can consider the actual damage, but it appears that the District Engineer of Highways and the Attorney General’s office are of the opinion that ,an allowance should be made. The claim is for $180.00 and the Attorney General suggests that $75.00 is a reasonable amount to allow.

Therefore the court recommends that claimant be allowed the sum of Seventy-five ($75.00) Dollars.


author: Mr. Chief Justice Clabity

text:
    (No. 1529
    County of Whiteside, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1931.

    Lloyd H. Brown, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clabity

delivered the opinion of the court:

This is a claim for relief under the Bovine Tuberculosis Eradication Acts of 1919 and 1925 for loss sustained through the destruction of certain tubercular cattle owned by the County of Whiteside as a part of a dairy herd of the White-side County Home. The total claim is made in the sum of $280.93.

There appears to be no contention as to the claim coming within the law, although the State is liable for only one-third and the Attorney General comes and recommends an allowance of $123.87 to claimant, being one-third of the claim and would be the extent of the liability of the State of Illinois.

Therefore, this court recommends that claimant be allowed $123.87.


text:
    (No. 1533
    John Smith, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1931.

    B. F. Tunnell, for claimant.
    Oscae E. Cablsteom, Attorney General; Gael I. Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is for $12,000.00 alleged to be the value of wheat straw which claimant says he burned in the years 1921 to 1926 both inclusive. In 1920 the wheat fields in certain sections of Madison County became infected with a disease known as flag smut and the Department of Agriculture issued an order directing that straw from the infected fields be burned. On July 11,1921, the infected locality was quarantined by the Department and all wheat straw grown therein (with certain exceptions) ordered burned. On June 26, 1922, the sections affected with this disease were again quarantined by the Department, the quarantine providing that “wheat straw grown in the quarantined area shall not be moved or transported out of the quarantined area.” The quarantine regulations issued that year did not require the burning of the straw. On July 18, 1924, the quarantine was lifted and there were no restrictions on the use or disposition of the straw after that date, and if claimant burned his straw that and the subsequent years he did not do it because of any requirement or regulation of the Department of Agriculture.

This claim was not filed until August 21, 1929, more than five years after the destruction of the straw burned in the years 1921, 1922 and 1923. Section 10 of the Act creating the Court of Claims provides every claim against the State shall be forever barred unless it is filed within five years after the claim first accrues. This statute bars the allowance of the claim for those years. As claimant was not required to burn his straw for the years 1924, 1925 and 1926 there is no theory on which the State can be required to pay him the value of that straw.

The quarantines above mentioned were declared under the provisions of the Plant Inspection Act of 1917. That Act did not provide for the payment of damages for the destruction of any property destroyed under its provisions to prevent the spread of plant diseases. Under its police powers the State has the right to destroy plants and animals to prevent the spread of infectious diseases and is not liable to compensate the owner for the loss suffered thereby unless the statute provides for the payment of such loss. (Durand v. Dyson, 271 Ill. 382; Mayfield v. State, 5 Ct. Cl. 226.) It follows that claimant is not entitled to any award, and the claim is denied and the case dismissed.


text:
    (No. 1543
    Guy H. Casey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1931.

    Stone & Fowler, and S. E. Quindry, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I.. Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears that the claimant was employed as a State Highway Patrolman at the time he sustained personal injuries on Route No. 2. It appears that his motorcycle collided with the rear end of a wagon having no lights. There is no objection to the contention that this accident occurred in the line of duty; that claimant suffered a number of minor bruises and lacerations about the body and a fracture of the right knee cap. Claimant contends that injury has resulted in considerable loss in the use of his right leg.

The Attorney General comes and defends and states to the court that in event liability is established, it recommends that an award be made not to exceed the sum of $976.10.

The court is of the opinion that from all the facts and circumstances presented that the award of the claimant should be in the sum of $976.10. The court believes that this is fair and reasonable.

Therefore the court recommends that the .claimant be allowed the sum of $976.10.


text:
    (No. 1550
    Frank Ritz, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1931.

      Frank Ritz, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz; Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This is a claim for payment under the Bovine Tuberculosis Eradication Ant of 1925, for the loss of two cows destroyed as tubercular reactors.

On April 11, 1929, claimant’s herd was tested by a duly authorized veterinarian of the Division of Animal Industry, Department of Agriculture, and two grade cows found to be tubercular. The cows were appraised at $135.00 each. On May 14, 1929, they were taken by truck to the Union Stock Yards in Chicago and sold for $81.70 at a loss to claimant of $178.30.

Chapter 8, Section 8, of Smith-Hurd Ill. Revised Statute 1929 provides: “No compensation shall be paid to any person for any animal condemned for tuberculosis: (4) If the owner retains the animal more than thirty days after it has been adjudged infected with tuberculosis.”

Cattle infected with a disease such as tuberculosis become a public nuisance and the State has the power, if deemed necessary to the public welfare, to order their destruction without compensation to the owner. Durand v. Dyson, 271 Ill. 382. Mayfield v. State, 5 Ct. Cl. 226. And if the State sees fit to limit the amount of compensation it will pay to the owner of property destroyed in the exercise of such power or to make payment of compensation contingent upon compliance by the owner with certain imposed conditions no one can question its authority to do so. The statute provides compensation shall not be paid if the owner retains the animal more than thirty days after it has been adjudged infected. That is the law and this court has no power to change it nor to disregard it. The Legislature deemed thirty days ample time for owners of such diseased animals to dispose of them. The claimant in this case kept his cows thirty-two days after they had been tested and tagged as tubercular. The statute in this case is plain and mandatory, and claimant not having complied with the law is not entitled to any award.

The claim is therefore denied and the case dismissed.


text:
    (No. 1559
    Harry E. Blackwell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1931.

    Thomas L. Fekete, Jr., for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Claimant was an employee of the State of Illinois and fifty-nine years old. He was employed by the Grain Inspection Bureau, Department of Trade and Commerce. His work consisted of obtaining samples of grain out of cars. While employed at this work on December 22, 1924, he slipped and fell while getting doivn from the top of a freight car. He fell feet first, striking a brick paved platform and suffered injury to both legs, fracturing bones in his left leg and right foot as a result of the fall. Claimant was confined in the hospital for a time. It is conceded that he has carried a crutch or cane ever since the accident.

The Attorney General comes and recommends in the event of liability of the respondent being established that the claimant be allowed on a basis of 50% disability. We are of the opinion this is correct.

Therefore, the court recommends that claimant be allowed the sum of $2,437.50.