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    State Savings Loan and Trust Company v. State of Illinois.

      Opinion filed December 11, 1916.

    1. Inheritance Tax — claimant to recover under section 10 of the inheritance tax law must appeal. In this claim a tax was fixed by the County Judge, and the same paid; later it was discovered that a mistake had been made in fixing the tax but no appeal was taken. Held, that a refund could not be made.
    2. Practice — claimant not precluded. Since an error was made in fixing the tax, the court holds that claimant may submit this matter to the Legislature.
    Herman H. Brown, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant, as administrator- of the estate of Mary A. Gardner, deceased, paid to the County Treasurer of Adams County on July 3, 1913, $75(>.90, same being the amount of inheritance tax found to be due by the inheritance tax appraiser. It subsequently developed that an error had been made by the inheritance tax appraiser in that he found the value of 131 shares of certain stock to be $170.00 per share, or $22,-270.00, whereas in his report he set such value down as $32,270.00, in-consequence of which the tax as levied was $100.00 more than should have been levied. The report of the appraiser was approved by the County Judge. No appeal was taken from this order to the County Court, and in consequence the order of the County Judge remains a final order.

In the case of Pattison and Harding v. The State, 2 Ct. of Cl. R. 319, a somewhat similar state of facts was presented, but in that case an appeal had been taken from the order of the County Judge to the County Court, and the County Court found that the previous order was erroneous and entered an order finding that the tax should have been a smaller amount than found by the County Judge. In that case this Court made an award to claimant. But, it will he observed in that case, the executors followed the remedy provided by statute and took an appeal. In the case before us, this was not done, and the administrator is in effect asking of us that we act as a court of review. True, there is no question but that the error in this case may he deemed one of fact, for which, ordinarily, there may be a recovery in a proper forum. But this Court cannot make an award in this case because the administrator has not followed the remedy provided by statute.

While we are satisfied that this error was made, it is not within our power to make an award under the state of facts in this case. Possibly the administrator may obtain relief by application to the Legislature, and we will not bar any such action in this case by rejecting the claim.

It is the judgment of this Court that this claim be rejected without prejudice so that the administrator, if it cares to, may present same to the Legislature for its consideration.


source: Caselaw Access Project

license: Public Domain

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    William Rummler and Eugene Rummler, Co-partners as Rumler and Rumler v. State of Illinois.

      Opinion filed December 11, 1916.

    Statute of Limitations — unliquidated claims when filed. Unliquidated claims must be filed within two years from the date the cause of action accrues.
    Harry P. Simonton, for Claimant.
    P. J. Lucey, Attorney General, for State.
   This is a suit in which claimants seek to recover for professional services rendered the Commissioners of Lincoln Park, together with incidental expenditures incident thereto. There is no question about the facts as presented, but the State by its demurrer raises the question as to whether or not this is a proper claim for the consideration of this Court. The itemized statement attached to claimants’ declaration, discloses that this claim accrued to claimants on October 30, 1912. The claim was not filed until March 8, 1915, more than two years thereafter.

This is an unliquidated claim and is barred by the Statute of Limitations requiring all such claims to be filed within two years from the date the cause of action accrues. (The Culver Construction Company v. State, 2 Ct. of Cl. R. 294.)

This being true, it will be unnecessary to discuss the other grounds set out in the demurrer.

The demurrer is sustained.


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    Emma Mayer Executrix of the Will of Simon Mayer, Decessed v. State of Illinois.

      Opinion filed December 11, 1916.

    1. Inheritance Tax — claimant to recover under section 10 of the tax law must appeal. In this claim the tax was fixed hy the County Court and the same paid hut no appeal was taken. Held, that no refund could he allowed.
    2. Practice — Court of Claims not a court of review. The Court of Claims does not sit as a court of review to pass upon the decisions of other courts.
    Simeon Straus and Ira E. Straus, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant presents this as executrix of the estate of Simon Mayer, deceased, by appointment of the Probate Court of Cook County, Illinois.

After the death of decedent, his safety deposit box was opened, and claimant was required to deposit $2,000.00 in the Fort Dearborn National Bank of Chicago1 to cover possible inheritance tax before being permitted to have access to the contents of said box.

The record shows that on February 14, 1913, the County Court of Cook County entered an order fixing the inheritance tax in said estate at $1,935.70, fixing the fair market value of the succession to Emma Mayer, the widow, at $116,784.76, and the taxable value after deducting the statutory exemption of $20,000.00 at $96,784.76, and the tax assessed at the rate of 21%. The bank transmitted the amount of the tax payment, less 5% of $1,838.92, to the County Treasurer.

Claimant’s attorney protested to the inheritance tax attorney that the tax should have been assessed at the rate of 1% instead of 2%, and so far as the record shows that is the only protest of any kind that was made.

No documentary evidence has been filed in this case from which we can ascertain just what proceedings were taken in the County Court. The evidence is to the effect that the final order was entered by the County Court and not the County Judge. If the order had been entered by the County Judge and was erroneous, an appeal could have been taken, and so far as record in this case shows, it might have been taken to the County Court. If an erroneous order was 'there entered, then, of course, an appeal could have been taken to the Supreme Court. There is no doubt but that an erroneous order was entered and so far as the record shows-it was entered by the County Court. The tax should have been levied on the basis of !■%' instead of 2%. But. instead of appealing to the Supreme Court to have the erroneous order modified, claimant protested only to the inheritance tax attorney, who, of course, was without authority to enter any order, and the judgment of the County Court so far as appears from this record, was a final order.

This Court has repeatedly stated that it is not a court of review, and for us to disturb the order of the County Court would he to assume that authority which we do not have.

In those cases wherein the facts were similar to those in this case, and wherein this Court has found for claimants, orders assessing a 2% tax were either entered by the County Judge and on appeal changed to 1% by the County Court, or fixed at 2% by the County Court, and on appeal changed to 1% by the Supreme Court. On the other hand, we have refused to make an award in those cases where the final judgment of either the County Court or County Judge erroneously assessed the tax at 2%, and claimant failed to appeal from the order and have same assessed at 1%.

Inasmuch as in this case a final judgment of the County Court which had jurisdiction, fixed the rate at 2%, we cannot act as an appellate tribunal and set that judgment aside. This, in effect, is what claimant asks us to do. On the face of the record as presented, claimant has not pursued her remedy provided by law.

In view of this situation, we cannot make an award in this case, and in consequence thereof, it is the judgment of this Court that this claim be not allowed.


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    Clara Schroeder by August Schroeder, Her Father and Next Friend v. State of Illinois.

      Opinion filed December 11, 1916.

    Respondeat Superior — doctrine of not applicable to the State. The State is not liable for the misfeasance, wrongs or negligence of its officers, agents or servants.
    Francis X. Busch, for Claimant.
    P. J. Lucey, Attorney General, for State.
   The State is not responsible for the misfeasance, wrongs, negligence or omissions of duty of its officers, agents or servants for it does not guarantee to any person the fidelity of the officer or agent whom it employs. Henke v. State, 2 Ct. of Cl. R, 11; Rood v. State, 2 Ct. of Cl. R. 22. The doctrine of responudeat superior does not apply to the State, and the State is not liable for the torts of its officers, agents and employees. Buszkiewicz v. State 2 Ct. of Cl. R., 394; State Bank of Chicago, Admr. v. State, 1 Ct. of Cl. R., 158.

The declaration in this case discloses that the claimant, Clara Schroeder, a little girl of about fourteen years was injured on June 7, 1914, by falling over a wire gate in Lincoln Park while she and a little companion of about the same age were strolling near the duck pond of the park. She suffered a fracture of two bones between the wrist and elbow of her left arm and while the injury will probably cause her arm to become weakened, the physician in attendance stated that as she grew older the arm would, become as strong as ever.

In paragraph 4 of section 3 of the Act of 1903, creating the Court of Claims, it provides among other matters, that the Court of Claims shall hear and determine “All other unadjusted claims of whatsoever nature or character against the State of Illinois.”

Counsel for claimant contends that the case at bar comes within this classification.

In the case of the State Bank of Chicago v. State, 1 Ct. of .Cl. R., page 164, the Court held as follows: “Public or State officers with only certain powers and duties enjoined upon them by the statute do not come within the doctrine of -respondeat superior. Applying this rule the South Park Commissioners being merely appointive officers with certain statutory powers are mere subdivisions of the government. They are mere assistants to the State in the exercise of its functions; not created at their own instance but for the purpose of aiding and assisting the sovereign powers of the State in carrying on the functions of the government and they are not liable for the negligence or tortious acts of its servants.” Further the Court said: “It has been judicallv decided that the Board of South Park Commissioners are not liable in their corporate capacity. Plow, then, can it now be claimed that the State is liable for the acts of the Board of South Park Commissioners ?” This case was cited with approval by the Court in the case of Busckewicz v. State, supra, and the doctrine therein announced has been uniformly followed by this Court.

The claimant in that case was seeking an award by reason of the alleged negligence of the Lincoln Park Board, and as in this case insisted that the claim came within that part of section 3 of the Act of 1903 which recites that “it shall be the duty of the said Court to hear and determine * * * all other unadjusted claims of whatsoever nature or character against the State.”

The Court in its opinion in the case of Henke v. State, supra, on page 13, held as follows: “Prior to 1877 there was no forum or tribunal in this State wherein claims could be filed against the State of Illinois. By the Act of 1877, first creating the Commission of Claims, to be composed of one Judge of the Supreme Court and two Circuit Judges of the State, it was declared to be the duty of the Commission ‘to hear and determine all unadjusted claims of all persons against the State of Illinois/ During the existence of the Commission under this Act no claim for personal injuries seems to have been filed against the State. In 1889 the Legislature revised the Commission of Claims Act, changing the manner in which the commission should be constituted, and spefi c-ially setting forth its jurisdiction. The clause referred to in section three by claimant as to 'all other unadjusted claims’ first appeared in this Act. The same year this Act went into force, the commission early passed upon the question here involved, and the opinion then rendered has been an established principle, closely followed by this Court, ever since in' the adjudication of similar cases. It was then held (Schmidt v. State, 1 Ct. of Cl. R. 76-79) that the law creating this! commission does not undertake to create a new liability against the State, but provides a method by which claims against the State may be heard before this commission/ And again on page 80, 'It is our understanding that * * * this commission has no power to make an award in any case unless the facts show a legal or equitable claim against the State/

In so doing the commission seemed to follow the opinion of the Massachusetts Court filed the same year, in Murdock Grate Co., v. Commonwealth, 24 N. E. 854, where the Court in passing upon a similar statute in that State succinctly says: 'The Act we are discussing discloses no intention to create against the State a new and heretofore unrecognized class of liabilities, but only an intention to provide a judicial tribunal where well recognized existing liabilities can be adjudicated/ ”

The law is so well settled that the State is not responsible for the misfeasance, wrongs, negligence or omissions of duty of its officers, agents or servants (which includes the Commissioners of the Lincoln Park Board), in the absence of statutory enactment creating liability that it precludes a recovery. It is therefore the judgment of the Court that this claim be denied.


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    A. T. Willett Company, a Corporation v. State of Illinois.

      Opinion filed December 11, 1916.

    Statute of Limitations — unliquidated claims — when filed. Unliquidated claims must • tie filed within two years from the date the cause of action accrues.
    Arthur J. J. Welsh, for Complainant.
    P. J. Lucey, Attorney General, for State.
   This claim is for horse hire and hauling furnished by claimant to Battery B, Field Artillery Battalion of Chicago, Illinois, from May 21, 1910, to May 30, 1912.

The original bill was for seventeen hundred nine ($1,709) dollars, upon which was paid twelve hundred ten ($1,210) dollars, leaving a balance due of four hundred ninety-nine ($499) dollars.

There is no question concerning the facts in this case, nor is therfc any question but that claimant’s account is correct and that he should be remunerated. However, this is an unliquidated claim coming within the Statute of Limitations requiring said claim to be filed withinj two years- from the time it accrued. This being true, there is nothing further to do than to deny the claim because this court has no power to make an award in such cases.

This has been the uniform holding of the court for many years and the law is so well settled that it will be unnecessary to cite any authorities.

It is the judgment of the Court that the demurrer be sustained.


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    Katharine S. Lechleiter, Doing Business as The Builders Supply Company v. State of Illinois.

      Opinion filed December 11, 1916.

    License Pees — when refund will be awarded. Where a license fee to incorporate has been paid to the Secretary of State, and it is determined by the Secretary that the name of the proposed corporation is not available and the incorporators decline to adopt another name and proceed further, the fee should -be refunded.
    Michael F. Gallagher, for Claimant.
    P. J. Lucey, Attorney General, for State.
   The claimant in this case had been conducting her business in Chicago, Illinois, under the name of the “Builders Supply Company,” and desiring her business incorporated under the above name, on November 10, 1913, sent her check for fifty-five ($55) dollars to the Secretary of State, with instructions to forward to her the necessary incorporation papers. She was informed by the Secretary of State that the name “Builders Supply Company” was not available, but that she might select some other name. She was also advised that the fifty-five ($55) dollars was placed to her credit.

Claimant not desiring to use any other name ivrote to the Secretary of State informing him to this effect and requested him to return the said fifty-five ($55) dollars, which she had advanced. She was afterward informed that this amount could not be returned as the same had been paid to the State Treasurer. This claim is filed to recover the fifty-five ($55) dollars paid to the Secretary of State.

When claimant forwarded the money in question to the Secretary of State with instructions for certain corporate papers she was informed by him that the same could not lie issued, and under the circumstances it occurs to us that she is entitled to a refund of the money advanced by her.

This case differs from those cases in which a license has been granted, but ivhere the parties afterward refuse to complete the organization. In this case the State did not comply with her request and there is no good reason why the Si ate should retain the money advanced by claimant.

We are of the opinion that claimant is entitled to relief in this case, and we therefore award her the sum of fifty-five ($55) dollars.


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    William B. Moak v. State of Illinois.

      Opinion filed December 11, 1916.

    License Fees — may not be refunded — when. Where a fee is paid to the Secretary of State for a license to receive subscriptions to the capital stock of a corporation, and the corporation is not completed, no refund of the fee.may he made.
    William B. Moak, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant in this case on behalf of Irvin A. Bice, et al., paid ninety-five ($95) dollars to the Secretary of State to secure a license to open books of subscription to the capital stock of I). S. Wilson &l Company, a proposed corporation with a capital stock of fifty thousand ($50,000) dollars.

After the license was issued the parties decided not to proceed further with the corporation, and claimant made a demand for a refund of the, license fee advanced by him, which was refused.

This claim is brought in this Court.to secure a refund of the amount of the license fee so advanced.

Claimant seems to be under the impression that this case differs from those cases in which the corporation itself advances money for a license fee but fails to proceed with the business of the corporation. The Court is1 at a loss to see where there is any difference so far as the liability of the State is concerned.

Counsel for claimant argues at some lomrth that an award should be made in this case on equitable grounds and cities the practice with reference to sheriffs and other fee officers in their respective counties. He is inclined to believe that the purpose of the Court of Claims is governed by set rules except those of its own making, and that its sole purpose is to adjust claims against the State.

In O’Donnell v. State, I Ct. of Cl. R., 255, which' has been cited with approval in different cases the Court said: “We can allow claims against the State only in cases where by express statutory provisions the legislature has created a liability on the part of the State for the acts of its agents; or rather waives the exemption of the State from such liability.”

In Schmidt v. State, 1 Ct. of Cl. R., 76-79, the Court said: “The law creating this commission does not undertake to create a new lia-, bility against the State, but provides a method by which claims against the State may be heard before this commission, and the claim rejected or an award made in favor of the claimant. The statute creating this commission, after reciting the various classes of claims of which the commission might have jurisdiction, among which may be said to be included claim of this petitioner, provides: ‘And such commission shall hear such claims according to its rules and established practice and determine the same according to the principles of equity and justice, except as otherwise, provided in the laws of this State/ ”

Continuing in the same case on page 80, it discusses the points raised by claimant in his argument in the case at bar: “The point has been pressed in argument by counsel for claimant that the legislature would have the right in a case of this kind, in-its discretion, to allow a reasonable sum to persons injured, making an appropriation for its payment, although the claim was strietty speaking, neither a legal or equitable claim, and that the intent of the Act creating this commission was to transfer to the commission the same discretionary power that the legislature would have; or in other words, that the commission would be justified, although believing the claim was neither an equitable or legal claim against the. State, in its discretion to make an award against the State and in favor of the claimant. To this proposition we cannot assent. It is our understanding that in the use of the language ‘to determine the same according to the principles of equity and justice’ is meant and used with a legal signification and that this commission has no power to make an award in any case unless the facts show a legal or equitable claim against the State. We do not believe it was the intention of the legislature to leave it discretionary with the commission to make an award in favor of the claimant regardless of the question as to whether or not he had a legal claim against the State.”

It is required by the statute that “preliminary to the filing of any papers in the office of the Secretary of State in order to incorporate under the laws of this State, the proposed incorporators must pay to the Secretary of State, the fee prescribed by'the statute.”

In the case, of Thomas A. Murphy et al., v. Slate, which opinion was filed at this term, the Court cited approval McKinley et al, v. State, 2 Ct. of Cl R. page 135, and Wells-Liddell Co., v. Slate 2 Ct. of Cl R. page 381, wherein we held as follows: “Where a fee has been paid to the Secretary of State in order to obtain a license to incorporate, such fee may not be recovered back even though no subscription to the capital stock is received by the commissioners’ or no further action is taken to complete, the incorporation.”

As this claim is governed by the principles set forth in the cases herein above referred to, we are satisfied that the facts set forth in the record before us docs not entitle claimant to an award.

It is therefore the judgment of this Court that the demurrer be sustained.


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    Thomas A. Murphy, R. G. Smith and Felix Gogolinski v. State of Illinois.

      Opinion filed December 11, 1916.

    License Fees — may not be refunded, when. Where a fee is paid in order to obtain a license to open subscriptions to the capital stock of a corporation and the license issues, but no further steps are taken or the corporation is not completed, no refund may he made.
    Walter F. Somers, for Claimants.
    P. J. Lucey, Attorney General, for State.
   This is a case where claimants applied to the Secretary of State for a license to open books of subscription to the capital stock of the Central Plumbing and Heat Supply Company. Their application to the Secretary of State was accompanied by a check for seventy ($70) dollars, receipt of which was acknowledged by him, February 19, 1914. License was issued in accordance with their application, but later the parties not desiring to complete their organization, requested the Secretary of State to refund the amount of the check which accompanied their application. The Secretary of State informed them he would be unable to comply with their request as the money in question had- been paid to the State Treasurer.

Upon claimants’ application to the State Treasurer for a refund of the amount in question, they were informed that same could not bo paid by him but that they might secure redress before this Court.

The State has filed a general and special demurrer to this claim.

The causes assigned by the special demurrer set up the fact that the license fee was paid by the Secretary of State into the State Treasury, and that by reason thereof the State of Illinois by its officers has' performed all the services required of it by law, and that it is entitled to the license fee so paid and upon which this claim is based. Preliminary to the filing of any papers in the office of the Secretary of State in order to incorporate under the laws of this State, the proposed incorporators must pay to the Secretary of State the fee prescribed by statute. Hurd’s Stats. 1913, p. 1254. chap. 53, par. 10.

Where a fee has béen paid to the Secretary of State in order to obtain a license to incorporate, such fee may not be recovered back, even though no subscriptions to the capital stock are received by the commissioners or no further action is taken to compleat the incorporation.

McKinley et al v. State, 2 Ct. of Cl. R. 125; Wells-Lid-dell Co., v. State, 2 Ct. of Cl. R. 381.

The facts in this case are similar to those in the case of Wells-Lid-dell Co., v. State Supra; tire Court in that case held as follows:

“The provision of the Statute in reference to the case at bar involves the same principles as in the case of Wm. McKinley, R. W. Hood and J. R. Ebersol, v. State, decided at the October Term of this Court, 1910, wherein this Court decided the provision of the law, chapter 53, Hurd’s ¡Revised Statutes 1909, is clear, that payment of the sum of thirty ($30) dollars, was a requirement which must he complied with before the Secretar)- of State could issue any papers whatever and that retention of the fee by the Secretary of State, is in no way made conditional upon the corporation or individual taking further steps. The law does not make this fee divisible and this Court has no authority to decide this case contrary to the plain provisions of the law.”

As this case clearly comes within the law as decided in the case of Wells-Liddell Co., v. State, and as the decision in that case has been in accordance with the holding of this Court, we are of the opinion that the demurrer should be sustained. Demurrer sustained.


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    Charles S. Buckley v. State of Illinois.

      Opinion filed December 11, 1916.

    1. Inheritance Tax — when no refund will be made. Where an inheritance tax is fixed by the county judge, and the same paid, no appeal being taken, an award will be refused.
    2. Same — is a tax upon what. An inheritance tax is a tax upon the right of succession, and not upon the estate of the decedent.
    3. Same — not affected by agreements among heirs, etc. Agreements among those who succeed to an estate will not affect the tax.
    4. Same — facts held not sufficient to justify an award. In this claim the tax was fixed by the county judge and the same paid. Later, in a collateral proceeding in a foreign state a consent decree was entered, whereby, claimant took a greater estate which was liable to a tax as devised but would not be liable to a tax as determined by the decree. Held, no refund could be allowed.
    5. Jurisdiction — court has equitable jurisdiction of what. The Court of Claims possesses equitable jurisdiction but in exercising the same it is governed by legal principles.
    Oscar F. Zipf, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant is a son of Lile Sabin Buckley, deceased, who died on November 28, 1912, in St. Cloud, Kansas, leaving a last will and testament. Said will, after a minor bequest, left the bulk of the estate, amounting to $22,545.29, to the National Amreican Woman’s Suffrage Association.

Tiie will was admitted to probate in the Probate Court of St. Cloud County. It was contested by claimant in the District Court of St. Cloud County, and a decree was entered in that Court by agreement of the parties, which decree finds that the will “is her last will and testament, and that the same should stand as made, subject to the conditions and finding hereinafter set forth.” The Court also found that “bv agreement between the parties hereto appearing, the real estate belonging to deceased at the time of her death, should be and become the property of the plaintiff.” And it was further found that the title to the real estate described in the decree should be quieted in the said Buckley, that the administrator with the will annexed should pay one-half of the estate in cash to the National American Woman’s Suffrage Association, figuring the real estate at $10,500.00, and the remaining one-half to Buckley.

On April 26, 1913, the County Judge of Stephenson County, Illinois, appointed an inheritance tax appraiser, who found an estate with taxable cash value of $2,000.00, as the property of J. L. ICamrar, a legatee, the tax on which at 3% was $60.00, and the balance of the estate was valued at $22,549.29, and was determined to be the property of the National American Woman’s Suffrage Association, and the tax fixed at 5%, or $1,127.26. The total tax recommended was $1,187.26. This finding of the appraiser was approved by the County Judge. On July 7, 1913, the administrator paid the said tax with interest from November 28, 1912, a total of $1,230.50.

Claimant now seeks to recover back so much of the tax as applied to that part of the estate which he acquired in the settlement with the National American Woman’s Suffrage Association. This amount, which he claims he is entitled to recover, is $584.34. He contends that the amount of the estate which he obtained in his settlement, being less than $20,000.00, that no tax should have been levied. He also claims that the amount received by him was a beneficial interest in his mother’s estate, and that it is immaterial how he got it, whether directly or indirectly, and asserts that '‘it was an amicable, equitable settlement, made by the decree of a Court of Record.” It will be observed that the tax was paid on July 7, 1913. The order of the Probate Court of St. Cloud County, Kansas, was entered on July 12, 1915, over two years after the tax had been paid. Claimant states that afterwards he ‘Took a survey of the situation and found that although exempt from paying any tax, he had in fact paid the sum herein mentioned.” Claimant contends also that he is entitled to recover by virtue of the Court of Claims Act, which provides for the hearing and determination of unadjusted claims by this Court; that he does not seek to recover by virtue of either sertions 10 or 25 of the inheritance tax law; that he does not seek to recover under any express provision of the Revenue Act, but bases his claim to recover solely on his legal and equitable right to the money which the State now holds for his use.

The State, on the other hand, contends that the order of the County Judge of Stephenson County is final; that it is a judgment, and no appeal having been taken, that it must be recognized as a final judgment ; that the proceeding here is collateral, and that the judgment of the County Judge of Stephenson County cannot be set aside in this proceeding; and that the inheritance tax is fixed as of the date of the death of the person.

Claimant, on the other hand, contends that this proceeding is not one to vacate or attack the judgment of the County Court of Stephenson County, but is an original proceeding of which this Court has jurisdiction, and appeals to the equitable jurisdiction of this Court.

We have heretofore held in many cases that we will not disturb the findings of the County Judge where no appeal has been taken to the Couunty Court, and an order therein entered modifying or setting aside the judgment of the County Judge. But, claimant contends that the case before us is one of a different nature wherein this rule is not applicable. If it be granted that this is true, we must consider the circumstances under which the order of the District Court of St. Cloud County, Kansas, was entered, and the nature of the order. This was an order entered by agreement of the parties, as appears upon its face. It did not set aside the will of decedent. It finds that the parties had entered into an agreement or a settlement whereby claimant here acquired title to part of the estate devised under the will. Had the case been actually tried in the District Court, and had the will been set aside, we would have an entirely different question confronting us. It is immaterial how claimant acquired the title to the property he had acquired so long as it is apparent that the will of the decedent was found to be her will. The case might have been settled by the giving of a deed or the turning over of money and the taking of a release, as well as in the way that it was settled. What purpose of the parties may have been in effect the settlement, Ave do not knoAv, nor is it material. The fact remains that claimant’s testimony shows that the title to all the property of the decedent, except minor legacies, vested in the devisee under the will. He after Avar ds received some of the property by agreement AA'ith the deA’isee. If claimant here is entitled to a refund, then it appears to us that an utter stranger to the proceedings who may eventually have acquired some of this property from the devisee Avould, Avith like shoAV of reason, be entitled to a refund, if the rate of taxation Avere smaller, or if such person were entitled to exemptions. The Supreme Court of this State in In Re Estate of Henry Graves, Deceased, 242 Ill. at page 216, has said: “The tax is not upon the estate of the decedent, but upon the right of succession, and it accrues at the same time the estate vests, — that is, upon the death of the decedent. Questions may arise as to the persons in whom the title vests, and such questions may affect the amount of the tax and the persons whose estate shall be charged Avith it; but Avhen those questions are finally determined, their determination relates to the time of the decedent’s death. Ho changes in title, transfers or agreements, of those A\7ho succeed to the estate, among themselves, or Avith strangers, can affect the tax.” In that case the Supreme Court pointed out that the contestant did not receive her interest in the estate as an heir. “Ho beneficial interest passed to her under any statute. The money Avas paid to her by Adrtue of a contract with the heirs. Henry Graves died testate. His will disposed of all his estate. The whole of the residuary estate vested at the instant of his death in the residuary legatee. The inheritance tax was then due and payable. The beneficial interest in the property then passed to the legatees and their succession gave rise to the tax. Subsequent events did not affect it.” The language of the Supreme Court in that case aptly fits the cast at bar. If claimant took as heirs, he Avas entitled to all of the estate. The District Court found that he took what he did merely by agreement with the devisee. Clearly, he has no claim upon the State of Illinois for a refund, the estate upon which the tax was paid having been legally and properly, so far as any eAÚdence in this case shoAvs, the property of the National American Woman’s Suffrage Association. In the case of People v. Union Trust Company, 255 Ill. 182, the Supreme Court said: “If, in order to avoid litigation, the legatees, contestants and others in interest under tire will compromised their claims, the concessions made, Avhile binding upon the parties, take effect under the agreement, and are not a modification of the will or rights under it or under the inheritance laws of the State.”

It is the judgment of this Court that the claim be denied.


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    The Merchants Loan and Trust Company, Executors of the Last Will and Testament of Arthur W. Masters, Deceased v. State of Illinois.

      Opinion filed December 11, 1916.

    1. Inheritance Tax — happening of may justify refund, when. If by the happening of a contingency an interest in an estate is liable to a lesser tax than though the contingency had not happened then upon the happening of such contingency, a refund should be made, in case the tax has been paid.
    2. Interest — when allowed. Where the right to a refund is established under section 25 of the inheritance tax law, interest will be allowed.
    McCullough & McCullough, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant filed its petition here as executor of the last will and testament of Arthur AAr. Masters, late a resident of Cook County, who died on August 3, 1909.

The will of decedent, probated in the Probate Court of Cook County, created a trust estate to continue until a son should become twenty-one years of age, and a daughter eighteen years of age, and it further provided, that, if each of said children should attain their respective ages that division should be made in equal shares between said children and the widow. It contained further provision for distribution of the estate, in the event that either or both of the children should die before arriving at the ages as set forth in the will.

The inheritance tax appraiser appraised the net taxable value of the estate at $59,370.31. The inheritance tax was assessed at $724.45, and on January 22,1910, the amount of said tax, less five per cent, or $688.23, was paid to the County Treasurer of Cook County.

Inasmuch, as the contingencies which terminate the trust have occurred, the said children having reached the ages of twenty-one and eighteen respectively, the estate of said decedent became the property of the said widow and children. Before division into thirds, however, it is provided in the will that each of the children should receive, outright, $5,000.00. If the estate valued at $59,370.31 be divided into thirds, each of the children and the widow will receive $15,330.92, and to the share of each of the children should be added $5,000.00, making the inheritance of each child $21,330.92. The estate taken by the widow is not subject to tax, being less than $20,000.00 in value. The deduction of exemptions for each of the children would make the estate of each child subject to tax worth $1,330.92.

Under section 25 of the inheritance tax law, claimants are entitled to a refund with interest at the rate of three per cent from the date of payment, and in this case, claimants are entitled to the difference between the amount paid $688.23, and the tax that should have been paid, $26.60, less five per cent, or $25.27, same being the aggregate of the tax that should have been paid by the children, less 5% on the theory that same would have been paid within six months as the original tax was paid. This amount is $662.96.

It is accordingly .the judgment of the Court that claimant be awarded the sum of $662.96, together with interest thereon at 3% from January 22, 1910.


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    B. A. Smith v. State of Illinois.

      Opinion filed December 22, 1916.

    Fees and Salaries — Dental Board. Claimant rendered services as a member of the Dental Board and incurred certain expenses in connection therewith for which he has not been paid. Held, that an award should be made.
    Fred B. Hamill, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant in this case was a member of the Illinois State Board of Dental Examiners, having served on said Board from August 32, 1913, until August 9, 1915. He received as compensation the sum of $10.00 for each day actually engaged in the duties of the office for all legitimate and necessary expenses incurred in attending the meeting of the said board. The salary and expenses of the different members of the board were paid from the fees, fines, and penalties received and recovered by the board in connection tvith their work.

It was provided by the Statute creating the Board of Dental Examiners that no part of expense incurred by the said board should be paid out of the State Treasury, but later, upon the advice of W. IT. Stead, former Attorney General of the State, it was decided that all moneys collected by the board should be paid into the State Treasury and that warrants covering the salaries and expenses of the different members should be paid by warrants drawn by the Auditor of State," directed to the State Treasurer.

This plan was adopted, and from that time on all moneys received by the board have been turned into the State Treasury.

On July 8, 1915, the Auditor of Public Accounts issued a warrant directed to the State Treasurer, payable to claimant for the sum of $178.51, which warrant was duly countersigned by the State Treasurer, and delivered to claimant by the Auditor in payment of claimant’s salary and expenses. The warrant in question was issued on account of a deficiency and payment was refused by reason of a certain injunction proceedings instituted in the Circuit Court of Sangamon County, Illinois. Later, on September 27, 1915, claimant received from the Auditor a second warrant for $340.00, which was duly signed by the State Treasurer.

The latter warrant was drawn against a regular appropriation which was included in the Omnibus Bill approved June 29, 1915, in force, -July 1, 1915. This bill so far as it attempted to appropriate moneys for the payment of salaries of officers of the State Government was afterward declared unconstitutional by the Supreme Court of this State in the case of J. B. Fergus et al v. Andrew Russell et al, 370 Ill. 304, and by the final decree in that case the State Treasurer was enjoined from paying any warrants that were declared to be unconstitutional and void.

Ho claim is made that claimant failed to perform his duties in accordance with the statute authorizing his appointment nor is there any question regarding the correctness and justice of his claim.

Having performed his duties we believe that he should be compensated, and we accordingly make an award in favor of the claimant for $518.51.


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    T. A. Broadbent v. State of Illinois.

      Opinion filed December 22, 1916.

    Fees and Salaries — B. A. Smith v. State ante followed. This claim is governed by the decision of the Court in B. A. Smith v. State, supra.

    Brown, Hay & Creighton, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant is seeking an award for services performed in connection with the Illinois State Board of Dental Examiners. The facts are practically the same as those in the case of B. A. Smith v. State of Illinois, in which case an opinion was filed at this term.

Our conclusions are the same and we therefore make an award in favor of claimant for $124.10.


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    C. P. Pruyn v. State of Illinois.

      Opinion filed December 22, 1916.

    Fees and Salaries — B. A. Smith v. State ante followed. This claim is governed hy the decision of the Court in B. A.. Smith v. State, supra. "
    Brown, Hay & Creighton, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant in this case is seeking an award for services performed in connection with the Illinois State Board of Dental Examiners. The facts are practically the same as those in the case of B. A. Smith v. State of Illinois, in which case an opinion was filed at this term.

Our conclusions are the same and we therefore make an award in favor of the claimant for $170.40.


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    W. F. Whalen v. State of Illinois.

      Opinion filed December 22, 1916.

    Fees and Salaries — B. A. Smith v. State ante followed. This claim is governed by the decision of the Court in B. A. Smith v. State, supra.

    Brown, Hay & Creighton, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant in this case is seeking an award for services performed in connection with the Illinois State Board of Dental Examiners. The facts are practically the same as those in the case of B. A. Smith v. State of Illinois, in which case an opinion was filed at this term.

Our conclusions are the same and we therefore make ah award in favor of the claimant for $279.35.


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    E. F. Hazell v. State of Illinois.

      Opinion filed December 22, 1916.

    Fees and Salames — B. A. Smith v. State ante followed. This claim is governed by the decision of the Court in B. A. Smith v. State, supra.

    Brown, Hay & Creighton, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant in this case is seeking an award for services performed in connection with the Illinois State Board of Dental Examiners. The facts are practically the same as those in the case of B. A. Smith v. State of Illinois, in which case an opinion was filed at this term.

Our conclusions are the same and we therefore make an award'in favor of the claimant for $304.70.


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    Henry L. Whipple v. State of Illinois.

      Opinion filed December 22, 1916.

    E!ees and Salaries — B. A. Smith v. State ante followed. This claim is governed by the decision of the Court in B. A. Smith v. State, supra.

    Brown, Hay & Creighton, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant is seeking an award for services performed in connection with the Illinois State Board of Dental Examiners. The facts are practically the same as those in the case of B. A. Smith v. State of Illinois, in which case an opinion was filed at this term.

Our conclusions are the same and we therefore make an award in favor of claimant for $313.73.


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    Dr. N. W. Cox v. State of Illinois.

      Opinion filed December 22, 1916.

    Fees and Salames — B. A. Smith v. State ante followed. This claim is governed by the decision of the Court in B. A. Smith v. State, supra.

    Alexander Wilson, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant is seeking an award for services performed in connection with the Illinois State Board of Dental Examiners. The facts are practically the same as those in the case of B. A. Smith v. State of Illinois, in which case an opinion was filed at this term.

Our conclusions are the same and we therefore make an award in favor of the claimant for $552.73.


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    O. H. Seifert v. State of Illinois.

      Opinion filed December 22, 1916.

    Fees and Salaries — B. A. Smith v. State ante followed. This claim is governed by the decision of the Court in B. A. Smith v. State, supra.

    E. I. Frankhauser, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant is seeking an award for services performed in connection with the Illinois State Board of Dental Examiners. The facts are practically the same as those in the ease of B. A. Smith v. State of Illinois, in which case an opinion was filed at this term.

Our conclusions are the same and we therefore make an award in favor of the claimant for $119.20.


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    Gideon M. Dempsey v. State of Illinois.

      Opinion filed December 22, 1916.

      Fees and Salabibs — B. A. Smith v. State ante followed. This claim is governed by the decision of the Court in B. A. Smith v. State, supra.

    E. I. Frankhauser, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant is seeking an award for services performed in connection with the Illinois 'State Board of Dental Examiners. The facts are practically the same as those in the case of B. A. Smith v. State of Illinois, in which case an opinion was filed at this term.

Our conclusions are the same and we therefore make an award in favor of claimant for $187.77.


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    Marie D. Gaines v. State of Illinois.

      Opinion filed December 22, 1916.

    Fees and Salames — B. A. Smith v. State ante followed. This claim is governed by the decision of the Court in B. A. Smith v. State, supra.

    E. I. Frankhauser, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant is seeking an award for services performed in connection with the Illinois State Board of Dental Examiners. The facts are practically the same as those in the case of B. A Smith v. State of Illinois, in which case an opinion was filed at this term.

Our conclusions are the same and we therefore make an award in favor of claimant for $51.35.


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    C. F. O’Connor v. State of Illinois.

      Opinion filed December 22, 1916.

    Fees and Salaries' — B. A. Smith v. State ante followed. This claim is governed by the decision of the Court in B. A. Smith v. State, supra.

    E. I. Frankhauser, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant is seeking an award for services performed in connection with the Illinois State Board of Dental Examiners. The facts are practically the same as those in the case of B. A. Smith v. State of Illinois, in which case an opinion was filed at this term.

Our conclusions are the same and we therefore make an award in favor of the claimant for $Ill.95.


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    Mary A. Cummings v. State of Illinois.

      Opinion filed December 22, 1916.

    Inheritance Tax — facts held sufficient to authorize an award. In this claim debts were proven up after the tax had been fixed and paid which debts were not reckoned in fixing the tax. Held, that an award should be made.
    Palissard & Benjamin, for Complainant.
    P. J. Lucey, Attorney General, for State.
   Claimant is the widow of and executrix of the will of Bobert P. Cummings, late of Iroquois County, Illinois, who died on December 31, 1914, and on April 12, 1915, an inheritance tax appraiser was appointed. On June 30, 1915, he inade his report to the County Court of Iroquois County, fixing the value of the estate subject to tax at $341,084.48, from which amount exemptions of the widow amounting to $20,000.00 were deducted, and the tax fixed at $6, 421.69. The report of the appraiser ivas approved, and claimant paid into the County Treasury $6,100.61, being the amount of the tax less 5%, and this tax was in turn paid to the State Treasurer.

There had been pending the claim of Damson Brothers and Company against the estate in the amount of $167,280.61, and no deduction was made on account of said claim. On January 4, 1916, said claim was allowed in the amount of $73,475.79. In making his appraisal the inheritance tax appraiser allowed $10,250.00 as costs of administration. This was subsequently ascertained to be $16,587.60. By these two items the share of the widow as legatee and devisee was lessened in the amount of $79,813.39. On the other hand, credits in the amount of $4,654.98 had not been taken into consideration by the appraiser, and no tax had been levied thereon. A recapitulation of these figures demonstrated that tax has been paid on $75,158.41, which amount the widow as legatee and devisee and who is also claimant herein, has not received. The tax on this amount, less the 5% allowed for payment within six months, amounts to $1,428.02, which is the amount of this claim.

Chapter 120 section 373 of the Bevised Statutes states as follows:" “Whenever debts shall be proved against the estate of the decedent after distribution of legacies from which the inheritance tax has been deducted in compliance with this Act, and the legatee is required to refund any portion of the legacy, a proportion of the said tax shall be repaid to him by the executor or administrator if the said tax has not been paid into the State or county treasury, or by the County Treasurer if it has been so paid.” Section 375 of the same chapter provides:

‘‘When any amount of said tax shall have been paid erroneously to the State Treasurer, it shall be lawful for him on satisfactory proof rendered to him by said County Treasurer of said erroneous payment to refund any pay to the executor, administrator or trustee, person or persons who have paid any such tax in error the amount of such tax so paid, provided that all applications for the repayment of said tax shall be made within two years from the date of said payment.”

It is apparent that claimant is entitled to a refund, and it is accordingly the judgment of this Court that claimant be awarded the sum of $1,428.02.


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    Earl G. Howarth v. State of Illinois.

      Opinion filed December 22, 1916.

    Military Service — when award will be made for injuries received in. A member of the Illinois Naval Reserve who is injured in the service of the State under orders from the Commander-in-Chief, is entitled to an award in the Court of Claims.
    Cecil Page, for Claimant.
    P. J. Lucey, Attorney General, for State.
   The claimant in this case ivas a young man at the time of the accident and was regularly enlisted as a seaman in the Third Division of the Illinois Naval Reserve, a part of the organized military force of the State, and was under the rules and regulations covering military bodies. He was required to render obedience to all orders of his superior officers, and a part of the duties of the Naval Reserve consisted in taking cruises on Lake Michigan and the other Great Lakes.

On or about August 1, 1914, he was ordered by Captain Edward A. Evers, Commanding Officer of the Naval Reserve, which he was enlisted with the Third Division as a seaman, to go on a cruise on the United States Steamship “Dubuque/5 and claimant was ordered to and did serve as a seaman on board said ship from that date; until on oil about September 7, 1914. His particular duty on board the ship during the cruise was that of captain of the stow-hole, to stow below deck various equipment, and bring same forth when needed. The storeroom or stow-hole below deck was raised by means of an opening through the deck called a hatehhole, which was bordered with a ledge extending upwards from the deck approximately one-lialf inch. Over the hatch hole was constructed an iron cover operating on hinges, with a ledge on the underside extending downward approximately one-half inch and fitting over the ledge on the deck so as to prevent water from entering the stow-hole. The cover weighing approximately one hundred pounds. On or about August 18, 1914, at the hour of 4 A. M., while the sea was somewhat rough causing the ship to rock, claimant, after having stowed away a quantity of equipment, and using due care for his own safety, sought to close the cover over the ledge when he lost control of it, the cover falling on the index finger of his right hand and practically severed it; although the finger was not amputated, it is now stiff and he has no use of same.

At the time of his injury he was earning $14.00 per week; he was prevented from following his business for four weeks and thereafter earned $30.00 per month for two years in service of the Illinois Naval Eeserve.

The State admits all the facts alleged in claimant’s declaration, and admits that claimant under the law of the State of Illinois as cited in the brief, is entitled to a recovery, but contends that claimant should not be awarded a large amount or the amount he claims, to-wit: $3,000.00.

Considering the injury, that it was the index finger of his right hand, and the manner in which same was sustained, that he received about half pay for two years, we are of the opinion that claimant is entitled to an award. s

An award is therefore made to claimant in the sum of $800.00.


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    Hal C. Smith v. State of Illinois.

      Opinion filed December 22, 1916.

    'Military Service — when award will be made for injuries received in. A member of the Illinois Naval Reserve who is injured in the service of the State under orders from the Commander-in-Chief is entitled to an award in the Court of Claims.
    Cecil Page, for Claimant.
    P. J. Lucey, Attorney General, for Claimant.
   The claimant in this case was a young man at the time of the accident, and was regularly enlisted as a seaman in the Third Division of the Illinois Naval Reserve, a part of the organized military force of the State, and was under the rules and regulations covering military bodies. He was required to render obedience to all orders of his superior officers, and a part of the duties of the Naval Reserve consisted in taking cruises on Lake Michigan, and the other Great Lakes.

On or about June 28, 1914, he was ordered by Captain Edward A. Evers, Commanding Officer of the Naval Reserve, which he was enlisted with, in the Third Division as a seaman, to go on a cruise on the United States Steamship “Dubuque,” and claimant was ordered to and did serve as a seaman on board said ship from June 28, 1914, until on or about September 10, 1914. His particular duty on board said ship during the cruise, was working on what is called an ash hoist, being a shaft extending from the floor of the fire-room, through the deck of the ship, by which was hoisted ashes from the fire room to the deck of thes hip, by means of a rope operated over a pulley. The pulley was located in the hoist about twenty-six feet above the fire room floor and about six feet above the deck. On the end of the rope in the fire room was fastened a sack used as an ash carrier. The other end ivas extended upward passing over a pulley in the hoist and then about twenty feet aft to a drum, looped around the drum and there held and pulled by a seaman. The drum was operated by an electric motor which revolved the drum during the hoisting, while the sack was being emptied and while the sack and rope were being returned to the fire room for the purpose of repeating the operation. On or about July 3, 1914, claimant was stationed on the deck at the hoist for the purpose of receiving and disposing of the ashes when lifted as aforesaid from the fire room to the deck and returning the sack and rope to the fire room as aforesaid. When a sack reached the deck, the seaman holding the end of the rope, after jiassing around the drum, would release the tension and thereby permit the drum to continue to revolve without gripping the rope and raising the sack of ashes higher. After the ashes were disposed of by claimant, during one of these operations on the last named date, July 3, 1914, claimant using due care for his own safety, dropped the empty sack to the fire room and was in the act of pulling- down the rope for the purpose of repeating the operation, when suddenly the rope became tightened on the revolving drum, and jerked the fingers and-hand of claimant into the pulley, destroying the first joint of the second finger, breaking open joint in the second finger of the left hand, pulled the second joint out of the socket and otherwise injured the hand, resulting in the loss of the use of the first two joints of the finger.

At the time of, or just prior to his injury, he was earning $14.00 per week. He was injured on July 3, 1914, and continued in the service of the Illinois Kaval Reserve until some time about September 10, 1914, during all of which time ho received about $56.00 from the State, as payment for cruising, resulting in a loss to the claimant of salary during that time in the amount of $84.00.

The State admits all the facts alleged in claimant's declaration, and admits that claimant under the law of the State of Illinois, as cited in the brief, is entitled to a recovery, but contends that claimant should not be awarded a large amount or the amount he claims, to-wit: $2,000.00.

Considering the injury, that is was the second finger of the left hand, and the manner in which it was sustained, we are of the opinion that claimant is entitled to an award. An award is therefore made to the claimant in the sum of $400.00.


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    Charles W. O’Neill v. State of Illinois.

      Opinion filed December 22, 1916.

      Contracts- — when recovery may be had on. The court reviews the evidence and makes an award in favor of claimant.
    McRoberts, Morgan & Zimmerman, for Claimant.
    P. J. Lucey, Attorney General, for State.
   On July 18, 1910, the Board of Administration of the State of Illinois, entered into a contract with Earl D. Stout for the erection of a hospital building at the Peoria State Hospital at South Bartonville, Illinois. Claimant became a subcontractor under the said Earl D. Stout in connection with the erection of said building and agreed to install the plumbing and heat for said building.

He did his work in a satisfactory manner, but was unable to secure the money due him for his work from the general contractor and accordingly filed a claim for the amount due him, with the Board of Administration. The Board of Administration advised claimant they could not deal with him except through the principal contractor, Earl D. Stout. Claimant then secured a statement from the said contractor, Stout, authorizing and requesting the Board of Administration to pay the sum of $236.00 to claimant, that being the amount due the said Stout from the said Board.

As the money appropriated to take care of this contract was not paid within a certain time, it was turned back to the State Treasury with other unexpended appropriations, and the Board of Administration was unable to pay claimant, nothwithstandin g they were requested to do so by the general contractor.

Under the circumstances it appears to us that claimant is entitled to receive from the State the sum of $236.00, which is being withheld on the general contract and we therefore make an award to claimant for that amount.

Claimant is awarded $236.00, this payment to claimant relases the State of Illinois from all obligations to the general contractor, Earl D. Stout, for and on account of the money so paid to claimant.


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    Charles W. O’Neill v. State of Illinois.

      Opinion filed December 22, 1916.

      Contracts — when recovery may be had on. The court reviews the evidence, and makes an award in favor of claimant.
    McRoberts, Morgan & Zimmerman, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant, a contractor of Peoria, Illinois, entered into a contract with the Board of Administration of the State of Illinois, whereby he was to provide material and do certain work in connection with some of the cottages at the Peoria State Hospital, South Bartonville, Illinois. He employed I. L. Hartman a sub-contractor to do a part of the work but the work of Hartman was not satisfactory to the Board of Administration, and they declined to accept it. Claimant after-wards contracted with the Peoria Stone & Marble Co., to finish the work which he had sublet to Hartman; the said Peoria Stone & Marble Co., finished same and it was accepted as satisfactory by the Board of Administration. The said Hartman filed a claim with the Board of Administration for $303.59, on account of the work done under claimant’s contract, and the Board has withheld that amount insisting they would not pay it until claimant and Hartman had settled their differences.

Later, Hartman entered suit against claimant in the County Court of Peoria County, Illinois, for money alleged to be due him on account of the work done by him in connection with claimant’s contract with the State. Claimant filed notice of set off and upon a hearing the Court entered a judgment for claimant in the sum of $50.00.

The appropriation under which the Board of Administration had power to make the contract with the claimant was made by the Forty-eighth General Assembly at the regular biennial session held from January 8, 1913, to June 30, 1913, and this appropriation, together with all other unexpended appropriations lapsed into the State Treasury, ás provided by the constitution on the 30th day of September, 1915, and there is no appropriation out of which the amount due claimant on his contract can be paid by the Board of Administration.

Claimant having done the work in a manner satisfactory to the Board of Administration and having adjusted his claim with Hartman, the sub-contractor, in the Civil Courts, we are of the opinion that he should be reimbursed by the State for the money due him.

We therefore make an award to claimant in the sum of $303.59.


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    David Rutter and Company, a Corporation v. State of Illinois.

      Opinion filed December 22, 1916.

      Contracts — facts which, will justify recovery on. In this claim, the specifications recited that delivery of coal could be made by rail, when such was riot the case, the State representative was aware of the fact, but the claimant was not. Held, that claimant was not bound by price fixed in contract, but could recover a reasonable price.
    Thomas D. Nash, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant entered into a contract with the State Board of Administration for supplying coal to the Peoria State Hospital at Bartonville for the year ending July 1, 1915.

Claimant, previous to the making of the contract, had secured a copy of the specifications for bidders, as prepared and furnished by the Board of Administration, and in these specifications it was recited that the Peoria State Hospital was accessible by the Peoria & Pekin Union Bailway, and it was provided that coal should be delivered in car load lots, f. o. b. on the siding at the hospital. The specifications were not appliable alone to the hospital, but to all institutions under the control of the Board of Administration. Certain of the institutions it appeared from the specifications had no side tracks, and it was provided that at such institutions delivery should be by wagon.

It appears that there was a track to the Bartonville institution, but this track, while constructed by the railroad company mentioned, was on the property of another, and prior to the making of this contract, the railroad company had been enjoined by the Circuit Court of Peoria County from transporting cars of coal over said tracks except such cars as contained coal from the mines of the owners of the land. This fact was known by the Board of Administration, but was unknown to the claimant.

About August 1, 1914, claimant tendered coal to the railroad company for delivery to the hospital, but the railroad company refused to receive same, because of the existence of the injunction. Thereupon the president of the claimant company advised the Board of Administration of the fact, stating that it would be impossible for him to perform his contract. The necessities of the hospital were urgent, and claimant was advised to make deliveries as best it could. Thereupon, claimant made arrangements for delivery by wagon. This, however, necessitated the expenditure of 75c per ton for delivery from the nearest point on the railroad to the hospital. To make deliveries in this manner, claimant expended $12,873.59, and it now seeks to recover this amount from the State, claiming that it was impossible to perform the contract, that in making its bid it had acted upon the representation that the hospital was accessible to the railroad, while in fact it was not, and that the direction to it by the Board of Administration to make deliveries as best it could, as it ivas apparent that it was impossible to perform the contract, amounted in effect to a new contract. As we view this case, either no contract in fact existed, due to the fact that the minds of the parties had not met, or if it existed, then a new contract was made when the claimant, after refusing to deliver under the contract as executed, was instructed to make deliveries. It is unnecessary for the the purposes of this case to determine which was the actual state of affairs. Certainly, delivery on the side track at the hospital was an essential ingredient of the contract. Accordingly, we do not believe that claimant is barred from recovery by article IV section 19 of the constitution.

The State concedes that there is some equity in claimant’s claim.

We are of the opinion that, due to the fact that claimant has innocently sustained this loss, due entirely to the facts as above stated, that it is entitled to recover, and it is accordingly the judgment' of this Court that claimant be awarded the sum of $12,873.59.


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    Western United Gas and Electric Company, a Corporation v. State of Illinois.

      Opinion filed December 22, 1916.

    License Fees — when refund will be awarded. Claimant paid a fee to Utilities Commission of this State upon the basis of an issuance of §800,000 worth of stock when late the amount was reduced to §80,000. Held, that a refund should be made.
    R. C. Putnam, for Claimant.
    P. J. Lucey, Attorney General, for State.
   The claimant company is a corporation organized and doing business under and by virtue, of the laws of the State of Illinois, with its principal office at Aurora, Illinois. It is a public utility corporation which furnishes gas, electricity and steam heat in several of the cities of the State.

On petition of claimant the State Public Utilities Commission of Illinois on December 16, 1915, entered an order authorizing the issuance of $800,000 worth of bonds of the Western United Gas and Electric Company, which said order contained a provision for the payment by claimant of an authorization fee of $800.00.

The sum of $800.00 ivas paid by claimant to the State Public Utilities Commission in accordance with its order. Later, it was determined that the order of the State Public Utilities Commission authorizing the issuance of bond's to the amount of $800,000.00 was far in excess of what was required and upon petition of claimant said order was modified to the extent that said claimant company would' be authorized to issue $80,000 worth of bonds.

After the amended order was entered by the commission reducing the amount of bonds issued from $800,000 to $80,000,.claimant sought to recover from the State Public Utilities Commission and from the State Treasurer the sum of $720.00 which represents the difference between the amount paid by it, upon the entering of the first order, and the amount that it would have been required to pay under the amended order.

Claimant was informed that the money so, paid by it was turned into the State Treasury, and that as there was no appropriation covering refunds of this kind he was unable to pay back the- money.

Having paid the sum of $800.00 in good faith in accordance with the order of the State Public Htilities Commission, and not having received the benefit as was intended by the order of the commission, we are of the opinion that claimant is entitled to a refund of $720.00.

We accordingly make an award in favor of the claimant in the sum of $720.00.

Judge Alschuler took no part in the consideration of this ease.


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    Thomas McGuire, Doing Business as The McGuire and White Detective Agency. v. State of Illinois.

      Opinion filed December 22, 1916.

      Contracts — when law will imply promise on part of State to pay. Where a duty is imposed hy law upon an officer and moneys are not provided with which to perform the duty, he may perform the duty and the necessary expenses are a proper charge against the State.
    Benson Landon, for State.
    P. J. Lucey, Attorney General, for State.
   Thomas McGuire, the claimant, is carrying on a general detective business in the City of Chicago, under the name of McGuire & White Detective Agency.

On June 12, 1914, the Auditor of Public Accounts employed Mr. McGuire to furnish men to protect the property of the La Salle Street Trust and Savings Bank, the State Bank of Calumet, and the Ash-land Twelfth Bank, which banks were under investigation by the Auditor’s office, Mr. McGuire furnished men and rendered service for the period of time beginning June 12, 1914, and ending September 27, 1914. The statement for services and expenses of operatives rendered shows a charge against the LaSalle Street Bank of $210.85, against the Ashland Twelfth Street Bank of $1,909.20, and against the State Bank of Calumet of $1,903.15, a total of $4,023.20.

The testimony of the witnesses shows that the contract was made hy the Auditor, that the services were rendered, and that the charges are the usual and reasonable charges for such service.

The State, was represented at the taking of testinmony by the Attorney General, but he has not filed any brief or argument contesting the claim.

On the authority of the case of Anyon, et al v. State, decided in the October Term, 1914, by this Court, this claim will be allowed, and it is the judgment of the Court that claimant be awarded the sum of $4,023.20.


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    Augustus Albert Carpenter, Executor of the Last Will of Augustus A. Carpenter, Deceased v. State of Illinois.

      Opinion filed December 22, 1916.

    Inheritance Tax — ivhen refund will be made. In this claim the tax as fixed hy the County Judge was paid under protest, after which an appeal was taken to the County Court which court confirmed the order of the County Judge, and thereupon an appeal was taken to the Supreme Court, which court held that a portion of the estate was not liable to a tax under the act of 1909. (People v. Carpenter, 264 Ill. 400). Later, a tax was fixed
    by the County Judge under the act of 1895, and an appeal taken to the County Court which approved the action of the County Judge in fixing the tax and thereupon an appeal was prayed to the Supreme Court which court held that the estate was not liable to a tax under the act of 1895. (People v. Carpenter, 274 Ill. 103.) Held, that claimant is entitled to an award.
    Scott, Bancroft, Kartin & Stephens, for Claimant.
    P. J. Lucey, Attorney General, for State.
   The claimant in this case seeks an award for $2,020.47, which he claims is due by reason of the erroneous inheritance tax assessment in the estate of Augustus Albert Carpenter, deceased.

The appraiser appointed by the County Court to fix the tax on decedent’s estate found that the total tax assessed against the estate to be $28,997.04. Claimant to secure his statutory discount paid to the County Treasurer, $27,547.19, which was the amount originally taxed, less than five per cent discount.

The County Judge entered an order fixing the tax rate in accordance with the appraiser’s report and upon an appeal to the County Court from the order of the County Judge, the order was affirmed. An appeal was taken to the Supreme Court of the State of Illinois, and it found that the tax was excessive and erroneous. A new order fixing the tax rate was again entered by the County Court and this second order was appealed from to the Supreme Court and was found upon hearing to be excessive.

A final order wras made hy the County Court in accordance with the directions of the Supreme Court which fixed the total tax at $26,870.23. Claimant contends that he is entitled to five per cent discount on the amount of this final order, by reason of his having paid the original tax assessed against the estate, within six months from the death of deceased.

The State insists that claimant is not entitled to an allowance of five per cent discount on the amount of this final order, although they concede that there is a basis for claimant’s contention upon equitable grounds.

In the case of Bartholomae v. State, 2Ct. of Cl. R, 306, where the same question arose this court held as follows: “It would seem that, inasmuch, as this erroneous tax was paid within the period whereby the five per cent discount was secured, that a like discount should be allowed upon the correct tax as fixed by the County Court, this being included in the money already paid, * *

As heretofore stated, claimant paid $27,547.19, which was the original assessment, less the five per cent discount. If the correct assessment of $26,870.23 had been made in the first instance, claimant after deducting his five per cent discount would have paid $25,526.72. The difference in what he paid under the erroneous order and what he would have paid under corrected final order amounts to $2,020.47, and we believe that claimant is entitled to a, refund of this amount.

We therefore make an award in favor of claimant for $2,020.47, -


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    Western Grain Products Company v. State of Illinois.

      Opinion filed December 22, 1916.

    License Fees — vahen refunded. Where a fee is paid under protest, in a case where no fee is required, a refund will he allowed.
    P. J. Lucey, Attorney General, for State.
   Claimant is engaged in the manufacture of stock food at West Hammond, Illinois. On December 27, 1913, it paid license fees amounting to $50.00 into the State Treasury for two of its products, and again paid such fees on January 5, 1915. It objected to the payment of these fees to the State Food Commission, stating that the particular products covered by said licenses were not sold within the State of Illinois. Nevertheless, upon the insistence of the Food Commission, it did pay the fees. Subsequently, for the year 1916, the Food Commission being satisfied that the foods were not sold in Illinois, did not require license for the same brands.

It is clearly apparent from the record that these foods were not sold in Illinois, and that under the law claimant should not have been required to pay license fee. There is some question as to whether or not the fees were paid under protest by claimant, but we are inclined to resolve the doubt, on consideration of the evidence in the record, in favor of the claimant, and it is accordingly awarded the sum of $100.00.


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    Frank N. Hill v. State of Illinois.

      Opinion filed December 22, 1916.

    Non-Liability of State — State not liable to officers who volunteer services. Where an officer volunteers his services in assisting and arresting an escaped convict and in consequence thereof receives injuries, the State is not liable.
    Louis Warner and Lauderback Brothers, for Claimant.
    P. J. Lucey, Attorney General, for State.
   The claimant in this case a resident of the City of Chenoa, Illinois, was on July 20th and 21st, 1915, and prior and subsequent to said dates, the regularly appointed and acting marshal of said city, and by agreement with said city, his hours of duty were between 6 P. M. and 12 o’clock midnight.

On the evening of July 20th, 1915, claimant received a telephone communication from the State Reformatory, at Pontiac, Illinois, to be on the lookout for two escaped criminals from said institution. Complying with said request, he at once began the search and continued from the time the first train, the “Hummer” a Chicago and Alton train from Pontiac, reached Chenoa at about 9 o’clock P. M. until the time he sustained a broken leg, which was about 1 o’clock in the morning of July 21, 1915, and at least an hour after his duties to the city of Chenoa as city marshal for that day and night. His official hours ended at midnight, but by special request of the officer of the State Reformatory he continued the search until about one o’clock A. M., at which time while walking along the Chicago and Alton railroad track to search some empty box cars located near the canning factory, he accidentally fell across the rail in such a way as to bréale his left leg between the knee and ankle. By reason of this accident he was put to considerable expense, unable to perform any work for a long period of time, and suffered great bodily pain.

The evidence shows that claimant received one dollar per day from the city of Chenoa as city marshal, and that during all the time he was unable to work the city continued to pay him one dollar per day. His doctor bill amounted to $25.00. The evidence shows that at no time was claimant either an officer or servant of the State of Illinois. If claimant had been in the service of the State as one of its servants, he would have been required to submit his claim to the Industrial Board. Claimant is seeking• to recover damages for his injury in the sum of $1,000.00. It is the judgment .of the Court that the claim be denied.


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    W. T. Joos v. State of Illinois.

      Opinion filed December 22, 1916.

    Statute of Limitations — unliquidated claims — when filed. Unliquidated claims must be filed within two years from the date the cause of action accrues.
    Weil & Bartley, for Claimant.
    P. J. Lucey, Attorney General, for State.
   This is a claim presented by W. T. Joos against the State of Illinois for damages caused by a continuous nuisance.

' Claimant, according to the statement filed herein, is the lessee of a farm in Peoria County, which adjoins certain lands leased by the owner thereof to the State of Illinois and used as a part of the State Bifle Bango and known as “Camp Grant”; that shortly after claimant took possession under the lease above referred to> the State began the operation of the Bifle Bange, and on July 7, 1910, various State troops and companies of the Illinois National Guard were engaged in rifle practice upon the lands leased by the State and adjoining claimant5* property. That rifle practice began on September 18, 1909, and continued until the 28th day of November of that year, during all of which time neither the claimant nor his assistants were able to work in the fields, since they were within range of the bullets being fired by the troops and companies above referred to, while practicing target shooting; that the crops were not harvested at all nor utilized; that his com fodder and second crop of clover were left a waste in the fields owing to the heavy snows falling shortly after the ends of the rifle practice. That rifle practice began on July 7, 1910 and continued until about October 30th, of that year, and during the following season commenced on or about July 2, 1911, and continued until October 30th following. That the claimant, being unable to operate his farm on that account, complained to the officers in charge of the Illinois National Guard, including the Adjutant General thereof, but without result, and in order to redress the wrongs, instituted in the Circuit Court of Peoria County, Illinois, a suit in chancery, praying that the officers of said Illinois National Guard, and the members thereof be restrained from so using said rifle range, but that no temporary injunction was issued by the Circuit Court; that after a protracted hearing in said court an injunction was issued, in accordance with the prayer of the bill, from which injunction order the State thereafter appealed to the Supreme Court. The Supreme Court on the 17th clay of December, 1912, entered an order affirmaing the decree of the Circuit Court and making such injunction permanent. (W. T. Joos, Appellee v. The State National Guard, et al, 257 Ill. 138.)

The total claim as shown by the declaration, including attorney’s fees, court costs, etc., incurred in and about the trial of said case and $750.00 alleged to be clue through loss of crops, etc. amounts to $1,587.10.

To this claim the State has interposed a demurrer, urging that if the claimant has a valid claim that the statute of limitations interposes a bar to recovery.

That this rifle range constitutes a nuisance, for which the State is liable, there can be no question, both on principle and adjudication. Crawford v. State, 1 Ct. of Cl. R. 91; Joos v. Ill. Nat. Guard, et al, 257 Ill. 138; Scanlan v. State, 1 Ct. of Cl. R. 128; Green v. State, 1 Ct. of Cl. R. 173; Hickox v. State, 1 Ct. of Cl. R. 81; Chicago Ball Club v. State, 1 Ct. of Cl. R. 291. Court of Claims Act 1903.

The damaging of property by bullets, during target practice carried on by the State Militia is not an act in which the servant could exercise his choice or make use of his judgment. It is the militia acting in strict subordination to the civil power. We believe that as conducted the rifle range at Camp Grant constituted a permanent nuisance of a kind already considered by this Court; but that the nuisance discontinued when the rifle practice ceased on October 30, 1911, and the declaration in this court ivas not filed with the Auditor of Public Accounts, who is ex-officio Clerk of this Court until April 26, 1914, more than two years after the nuisance abated, and is therefore barred by the Statute of Limitations. No legal liability rests upon the State to pay claimant’s amounts paid, out by him as costs and attorneys’ fees in prosecuting the case in Peoria County and Supreme Court of this State. The demurrer is sustained and the petition dismissed.


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    Robert L. Vlands v. State of Illinois.

      Opinion filed December 22, 1916.

    1. Quarantine — State not liable for acts of officers in enforcing. Where the State exercises its police power in enforcing a quarantine to prevent the spread of a contagious disease, the State is not liable for the acts of its officers or agents in the enforcement of such quarantine.
    2. Same — State not liable for property destroyed. Where in the enforcement of a quarantine the property of an individual or corporation is destroyed, the State in the absence of a statute is not liable therefor.
    Kirby, Wilson and Brockhouse, for Claimant.
    P. J. Lucey, Attorney General, for State.
   The claimant in this case was a tenant farmer residing three miles north of Ashland, Cass County, Illinois. On November 9, 1914, the farm occupied by him was placed under strict quarantine by order of the State Board of Live Stock Commissioners, because the live stock belonging to said claimant on said farm had become afflicted with a dangerous and contagious disease, known as the foot and mouth disease. On November 11, 1914, the farm was still being under quarantine, the dwelling house occupied by claimant was destroyed by fire, and part of his household goods and other personal property situated in said dwelling was also destroyed, for which he now presents his claim for $242.35.

Counsel for claimant argue that had it not been for the strict quarantine on said farm prohibiting claimant’s neighbors from going to the house, they would have been able to save the balance of claimant’s personal property, and therefore the State should reimbursce him for the loss that he sustained.

The State in placing the quarantine on claimant’s farm ivas acting solely in a governmental capacity for the benefit of its citizens. This work must necessarily be handled through its officers, employees or servants, and if the State in the exercise of its police powers had destroyed the property in question no recovery could be had against the State, there being no statute provided therefor.

The judgment of this Court is that the claim be rejected.


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    R. C. English and E. C. English, Copartners Doing Business as English Brothers v. State of Illinois.

      Opinion filed December 22, 1916.

    Mistake op Facts — contractor making mistake in estimate. Where a contractor in making an estimate upon work to be performed by him honestly makes a mistake in such estimate, he may have his contract rescinded.
    Henry L. Jones, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimants who are contractors at Champaign, Illinois, are asking for an award in the sum of $4,500.00 on account of their having forfeited to the State said amount when they refused to comply with a bid submitted by them for the erection of an auditorium for the Southern State Normal University at Carbondale, Illinois.

It appears from the records before the Court that a clerical mistake was made by claimant in preparing their estimates in connection with the structural and ornamental iron used in the erection of the proposed building.

At the time claimants were preparing their estimates for the erection of the auditorium at Carbondale, they were also engaged in preparing estimates for the erection of a State building at Normal, Illinois. The Gage Structural Steel Co., of Chicago, Illinois, furnished claimants proposals for the structural steel in connection with the building to be erected at Normal, Illinois, but did not furnish them proposals for the steel to be used in the building at Carbondale.

By Mistake, claimants used the proposal furnished them for the Normal building, believed it to be the proposal for the erection of the Carbondale building and this mistake caused their estimates to be from $12,000 to $14,000 less than they should have been.

When the bids were opened it was found that claimants were considerably lower than the other bidders and accordingly the contract was awarded to them. Claimants on finding their mistake above referred to, notified the State Architect and the Board of Trustees of the Southern Illinois State Normal University that they would be unable to go ahead with the work on account of the mistake in their bid and asked that their certified check for $4,500 be returned.

At the request of the State Architect a meeting was held at Carbondale, Illinois, at which claimants, the State Architect and the Board of Trustees were present and this matter was gone over in detail. At that time the State Architect examined all of claimants5 data with reference to the estimates on the building in question, and advised the board that he was satisfied that claimants made a mistake as contended and he further advised the board that he believed claimants5 check should be returned. However, the board believing that it would be an injustice to the other bidders to return claimants5 check, refused to do so, and cashed the same.

The State contends that claimants are not entitled to a refund of the amount of their certified check for the reason that it might open the door to fraud and that the State would be the victim of scheming contractors.

In the determination of any particular case, the Court can only be governed by the records before it in that case, and from a careful examination of all the testimony and exhibits filed with us, we are clearly of the opinion that the mistake in question was honestly made by claimants in the preparation of their estimates, and it is of such a nature as would entitle claimants to rescind their contract with the State.

In the case of W. M. Allen, Son & Co. v. State of Illinois, 2 Ct. of Cl. R. 404, a ease similar to the one before, us, this Court held as follows. “* * * and for the further reason that we are convinced that claimants did not try to rescind their contract for any other reason than the mistakes made by them in the preparation of their several estimates, we believe it would be unjust and inequitable to compel them to suffer a loss as would be occasioned by the forfeiture of their two checks amounting to $5,900.55

As there is nothing in this case to warrant us in believing that claimants did not make the mistake as contended and that their refusal to proceed with the contract ivas based on said mistake, we are of the opinion that they are' entitled to have the amount of their certified check returned, and we therefore make an award in their favor in the sum of $4,500.00.