text:
    Charles Harbough Lumber Company, Inc. v. State of Illinois.

      Opinion filed November 26, 1918.

      Contract — material man must follow provisions of statute. Where material is furnished to contractor to complete work for the State, the person furnishing such material must follow the provisions of Section 23, of Chapter 82, Hurd’s Revised Statutes, to be protected, or to recover the purchase price of the material furnished.

      Presumption — not indulged against the State. No presumptions are indulged aganst the State to aid a claimant in his demand.
    Ignorance op Law — not ground for recovery. That the claimant is ignorant of the law or is guilty of laches is not ground for allowance of his claim.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed to recover for the value of building material alleged to have been furnished by claimant to Wm. 31. Deffenbaugh, and Son, who contracted ivitli the State of Illinos to erect a State building, to-wit: The St. Charles School for Boys building, in which building said material was by the said contractors used, amounting to a balance of eight hundred twenty-four dollars, eighty-eight cents ($824.88).

The evidence shows that on the first day of August, 1916, bids were received by the Board of Administration of Illinois, for the erection of buildings for the accommodation of said School for Boys, and that the contract was awarded to said Wm. 31. Deffenbaugh, of Springfield, Illinois, for the sum of nineteen thousand, one hundred eighty-nine dollars ($19,189.00). Thereafter, said Board entered into a contract with Wm. 31. Deffenbaugh and Son, co-partners, for the erection of said building for said sum, wherein and whereby the said contractors were to furnish all material, labor, tools, and equipments necessary to the completion of said building according to contract.

The said 3Vm. 31. Deffenbaugh and Son, contractors, entered into a bond to the State Board of Administration for the faithful performance of said contract in the sum of nineteen thousand one hundred eighty-nine dollars ($19,189.00), with the American Surety Company, of Yew York, as surety thereon.

Wm. 31. Deffenbaugh and Son, hereinafter called the contractors, from time to time, verbally ordered and procured of claimant a bill of building material to be used in said building, amounting to two thousand two hundred seventy-five dollars and sixtv-five cents ($2,27o.6o). Such orders covered a period of time from September 7, 1916, to 3Iarch 28, 1917, both dates inclusive. By payments and return of material, the total sum last mentioned was reduced to eight hundred twenty-four dollars and eighty-eight cents ($824.88), for which he files claim. A hill of particulars is attached, and amply supported by evidence, and to which there is no controversy.

It is claimed that “under a mistake of fact, the material, labor, etc., were figured on too low a basis, and that the State, if it should pay claimant his demand, would still be obtaining the work and material, etc., at a less figure than the fair market value thereof, and less than the other fair and i casona!) le bids made thereon by responsible contractors.”

This argument does not appeal to the Court as having much force or legal logic, especially when it is shown by the evidence that this contract was made before war was declared, and that subsequently thereto, material and labor advanced very rapidly. There is no evidence showing or tending to show, that the contract was awarded at an unreasonably low price.

Claimant and the Board of.Administration had some correspondence in the spring and summer of 1917, relative to the failure of the contractors to pay the claimant the balance he now claims, and if any further payments were made by the State to the contractor after that it is not disclosed by the evidence.

It is shown, however, that in April, 1917, the contractor abandoned, and refused to complete his contract for the erection of said buildings. Thereupon, the Board of Administration employed another firm, Lehman & Jenson Construction Company, to complete the building on same plans and specifications contained in the Deifenbaugh & Son contract, for which, said Lehman and Janson Construction Company was paid the sum of nine thousand seven hundred fifty-four dollars ($9,754.00). It appears, the State Treasurer had paid Mr. Deifenbaugh on the job, tlie sum of eleven thousand five hundred dollars ($11,500.00), which was eightv-five (85%) per cent of the amount of labor, material, furnished, as shown by statement of the architect.

It is claimed by claimant that fifteen (15%) per cent of the value of work and material furnished by Deifenbaugh and Son, was forfeited to the State, and that the State should pay the amount to claimant. The contract between the Board of Administration and Deifenbaugh & Son, provided that the building should be constructed for nineteen thousand one hundred eighty-nine dollars ($19,180.00), as stated, and that in the event the contractors should fail, or refuse to complete said buildings according to the terms of the contract, the Board of Administration should have the work completed and charge the expense thereof to said Deifenbaugh & Son. This, the Board of Administration seemed to. have done. The record of evidence fails to disclose just how much, and just when was paid by the State Treasurer to the original contractors, Deifenbaugh & Son. It is not shown, as a whole, that the State of Illinois came out ahead in any sum by reason of any forfeiture in the two contracts. The evidence falls short in this and several other particulars, and we cannot aid the claimant in any presumption against the State in order to make out his claim.

But in the event the State had been properly notified with a “Stop Order” as alleged; or that the State had profited by a forfeiture under the first contract, it could not avail the claimant in this case anything.

Where a remedy and procedure is provided by the plain provision of the statute, it must be followed. Chapter 82 of the Revised Statute of Illinois, entitled “Liens” furnishes full, complete and ample protection for all mechanics material men, labors, sub-contractors, etc.

Section 23 of Chapter 82, above referred to, provides as follows: “Any person who shall furnish material, apparatus, fixtures, machinery, or labor to any contractor for a public improvement in this State, shall have a lien on the- money, bonds or warrants, due or to become due, such contractor for such improvement: Provided, such person shall, before such payment, or delivery thereof, is .made to such contractor, notify the officials of the State, County, City or municipality whose duty it is to pay such contractor, of his claim by a written notice. It shall be the duty of such official so notified to withhold a sufficient amount to pay such claim until it is admitted, or by law established, and thereupon, to pay the amount thereof, to such person, and such payment shall be a credit on the contract price to be paid such contractor. Any officer violating the duty hereby imposed upon him, shall be liable on his official bond to the person serving such notice for the dainages resulting from such violation, which may be recovered in an action at law in any Court of competent jurisdiction. There shall be no preference between the persons serving such notice, but all shall be paid jiro rata in proportion to the amount due under their respective contracts.”

This statute was in force, July 1, 1903, the date of its enactment, till July 1, 19,17. The Legislature in 1917, passed another Lien Law; but Section 23 was not materially changed from that of 1903. Hurd’s Revised Statute of 1917, Chapter 82, Section 37. From the jilain provision of the foregoing law, it shows that claimant had a clear, positive and expeditious remedy under the statute to protect himself and enforce his claim as a materialman, by giving proper notice to the State official, wdiose duty it was to pay. He furnished a larger part of the material in fall of 1916, and might, at any time, thereafter, have given notice as above provided. Upon giving such notice the officer was legally required to stoji further payment to contractors until a proper settlement could be had with him, as provided in foregoing provision of law.

A failure of the officer so served to pay claimant as provided, makes him liable on his official bond. But it seems that from the evidence on page 22 of claimant’s evidence, by the manager of the claimant, that no notice was served, or given to any one of a lien claimed. But whether notice was, or was not served by claimant, it is immaterial in jjassing upon his right to a claim against the State. He evidently was guilty of laches, and in ignorance of his statutory rights, for which the defendant cannot be held accountable. Had he followed the plain provisions of the statute in this casé cited, he undoubtedly could have eniorcecl payment of his claim. Proper notice in due time on the State official liable to pa}', would have held the money under the State’s control till claim was properly adjusted and paid. A failure by such officer to so hold funds after notice due to contractor, would make him liable on his official bond by suit in any court having jurisdiction, of same.

The claimant surely has no right of action in this Court for the enforcement of his claim, either in law, or equity. This claim is accordingly rejected.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph A. Weber v. State of Illinois.

      Opinion filed November 29, 1918.

    Members op Legislature. Contest. Legislature acts in judicial capacity. Under the Constitution the Legislature acts in a judicial capacity when exercising its power in an election contest of its members, and determines the result of the election of its members without interference or intervention of the Courts.
    Expenses op Contest — expenses of election contest determined by the Legislature. Incidental to the power of the Legislature to determine the result of an election of its members, the expenses incurred in such contest should be fixed and determined by the Legislature itself.

      Same — the right to fix, allow or disallow expenses an exclusive one. The right to fix, allow or dis-allow expenses incurred in election contest of its members is as exclusive as the power to hear and determine such contest.

      Jurisdiction — Court is without jurisdiction in such cases. The Court is without jurisdiction to allow a claim for solicitor’s fees and expenses incurred in contest of election of members of the General Assembly.
    Edward J. Brundage, Attorney General, for State.
   Joseph A. Weber, the claimant, presents to the Court liis claim in the sum of $1,250.00, alleged to have been paid out and expended by him in about his defense in a contested election case.

Wherein one Wilson contested Weber election as a member of the house of representatives in the 50th General Assmbly of Illinois.

It appears from the uncontroverted evidence that the claimant was elected as a member of the fiftieth General Assembly from the sixth Senatorial District on the 7th day of November, 1916, and received a certificate of his election December 9, 1916.

Robert E. Wilson gave due notice of the contest for his seat, and after the convening of the Legislature, the said contest was referred to the election committee in the house, which voted to recount the ballots cast in said election.

A committee of five members was appointed to conduct the proceedings.

The committee went to Chicago of which the sixth district forms a part.

The committee proceeded to count the ballots.

The claimant employed legal counsel to aid in the contest; and engaged six watchers and six talliers at $10.00 a day each, making a

sum of ...............................................$ 480.00

His attorney fee was fixed at............................. 500.00

Incidental expenses at.................................. 270.00

Making a sum total of..................................$1,250.00

The recount and result of the contest showed that claimant was elected by over 1,000 votes majority.

■ The report of the committee showed Wilson, the contestant was badly defeated, and that claimant herein was duly elected.

The report was approved by the house, claimant prepared his- expense account and all charges which are set forth herein heretofore and same were approved by the proper committee.

A resolution had been introduced and passed by the house in the 50th General Assembly limiting the attorneys fees to be paid in such cases not to exceed $500.00 to any sitting member against whom a contest should be filed and in which a recount was required, and not to exceed $250.00 where contest should be dismissed without recount of ballots.

Also that actual expenses for railroad fare, etc., if itemized and verified might be allowed to such sitting member, contestee, provided he is successful in retaining his seat.

The expenses were itemized and verified by claimant to amount of $745.15.

It appears in evidence that an appropriation was made.

By reference to the session laws of 1917, page 86, we find that two items there contained in II. B. 1037 and presented to the Governor for his approval.

The first item was for “Joseph A. Weber for expenses for himself and his attorney in contest case 745.15.”

“The second item, Andrus & Trutter attorneys fees for Joseph A. Weber, $500.00 both of which items were vetoed by the Governor.”

On the same page of said session laws and continuing on pages 87, 88 and 89 we find about 33 items for similar claims in other election contests of same character, and all “vetoed.” '

The claimant says the Governor vetoed his claim because it had not been referred to the Court of Claims for allowance.

There is no record evidence to this effect in this case.

On page 90 session laws — session laws 1917, the Governor is recorded as saying “I veto each of said items (after having vetoed items above mentioned) for the reason set forth in the opinion of the Attorney General, a copy of which is hereto attached.”

We have not been apprised nor made acquainted with the contents of such opinion, even if it were material herein.

It is submitted by claimant, in his brief and argument that election contest expenses have for many years been paid by Congress and the various states, and that a terrible abuse of such powers had heretofore prevailed in Congress and in the Illinois General Assembly; and that such expense for election contests in the 48th General Assembly of Illinois amounted to about $68,000.00.

The 50th General Assembly seems to have curbed and remedied such abuse to the extent, at least of the amount of expenditures mentioned in the resolution above referred to.

There seems to be no dispute about the facts in .this case. Both parties cite, and it is the law, that section 9, article 4, Constitution 1870, Illinois, provides as follows:

“Each house shall determine the rules of its proceedings and be the judge of the election returns and qualifications of its members.”

States in creating offices have the right to provide such agencies and mode of procedure as they deem fit to determine the result of the elections to such offices without the intervention or interference by the Courts — 9 Ruling Case Law, page 1158, Taylor v. Beckham 108 Ky. 278, 49 L. A. E. 358.

The constitutional provision making each house the judge of election and qualifications of its members is an exclusive grant of power and constitutes each house the sole and ultimate tribunal to pass upon the qualifications and elections of its members; and such power cannot be granted away or transferred to any other tribunal or office. Ex-Parte Dalton 44, Ohio St. 142; Note 16, A. S. R. 220. See also cases cited 9 Ruling Laws 1158.

This view is upheld in Kilbourne v. Thompson 103 U. S. 168 “The power given to the house of the Legislature is a judicial power and its acts in a judicial capacity when exercising it in an election contest of its members, the express vesting of this judicial power in a particular case so closely and vitally affecting the body to whom that power is given takes it out of a General grant of judicial power to Courts.” Board of Alderman v. Darrow, 16 A. S. R. 220 (note).

The expense of election contests of the character mentioned is a necessary incident in such investigations, and in our opinion should be fixed and allowed or disallowed by the Legislative body hearing the contest.

This right it appears to the Court, is an exclusive as is the exclusive right to adjudicate the matter to be heard by such body.

There is no statutory provision governing the payment of such expenses, and the rules governing such bodies may or may not be changed by any session of the General Assembly at its pleasure.

In view of the facts and law in this case, the Court is not inclined to encroach upon, or abridge what appears to it to be the exclusive power and right of the State Legislature.

The Court holds that it is without jurisdiction in this case and the same is dismissed without prejudice.


text:
    Louis J. Snyder, Executor of the Estate of Caroline E. Deshon, Deceased v. State of Illinois.

      Opinion filed January 30, 1919.

    Inheritance Tax — Lora J. Moore, executrix, etc. v. State, Stipra, folloioed. This case is controlled by the decision of the Court in the case of Lora J. Moore, ex. etc. v. State, Supra.

    Edward J. Brundage, Attorney General, for State.
   The facts in this case as disclosed by the evidence are as follows: Caroline E. Deslion died on the eighteenth day of September, A. D. 1915, a resident of the City of New York. Administration was taken out in New York and claimant, Louis J. Snyder was appointed Executor of the Will of said decedent. On the fifth day of October, A. D. 1916, the County Judge of Cook County, Illinois, entered an order purporting to assess an inheritance tax in said estate of one hundred seventy-nine and 98/100 dollars ($179.98), which amount, together with interest, was on the same day paid by the claimant to the County Treasurer of Cook County, the total payment being one hundred ninety-one and 23/100 dollays ($191.23).

Thereafter, on the fifth day of September, A. D. 1918, the acting County Judge of said county entered an order vacating and setting aside for want of jurisdiction, so much of said prior order as attempted to assess a tax upon the transfers by said decedent of shares of stock in foreign corporations to non-resident beneficiaries, and it was found that with the elimination of the foreign stock there would be no tax on the estate.

The State by the Attorney General admits that if a refund is granted in the case of Lora J. Moore, etc., v. The State, Number 33, filed at this term, claimant is entitled to a refund of one hundred ninety-one and 23/100 dollars ($191.23).

In said case it was stipulated by and between the Attorney General for the State, and Walter K. Lincoln, attorney for claimant, herein and for said Lora J. Moore, Executrix as follows:

First — That the Decree of the County Court of Cook County reforming the order of tax therein (a certified copy of which was therein filed with this Court) shall constitute all the evidence in said cause and that this stipulation shall stand and apply to the cases hereinafter enumerated, now pending in this Court.

Second — That the statement, brief and abstract filed by the parties hereto in said estate shall stand as a statement, brief and abstract in the cases hereinafter enumerated, except as to dates and amounts in said cases, and that the decision of this Court in the said Lora J. Moore cases shall determine the merits and disposition of said cases hereinafter named.”

List of cases above referred to:

John M. Campbell v. State.

United States Trust Company of N. Y. v. State.

Henry Purcell v. State.

John T. Morse v. State.

Charles M. Bissell v. State.

Boston Safe Deposit and Trust Company of Boston, Massachusetts v. State.

Andrew Fish v. State.

Arthur D. Hill v. State.

F. J. Moore v. State.

John E. Garden v. State.

Commonwealth Trust Company of Harrisburg, Pennsylvania, v. State.

Louis J. Snyder, Executor, v. State.

Geo. F. Perkins v. State.

Said stipulation in the Lora J. Moore, Executrix, case number thirty-three, will, therefore, govern in this case, and the Court having awarded the claimant a refund in the said Lora J. Moore, Executrix, Etc., case and from the evidence and stipulation we award claimant the sum of one hundred seventy-nine and 98/100 dollars ($179.98).


text:
    Commonwealth Trust Company, Executor of Estate of Margaret C. Holderman, Deceased v. State of Illinois.

      Opinion filed January 30, 1919.

    Inheritance Tax — Lora J. Moore, et al v. State, Supra, followed. This case is controlled by the decision of the Court in the case of Lora J. Moore, ex. etc. v. State, Supra.

    Edward J. Brundage, Attorney General, for State.
   The evidence shows, and same is admitted by the State, that Margaret 0. Holderman died testate, December 17, A. D. 1915, a resident of Harrisburg, Pennsylvania. Éo administration in this State; but letters were issued to petitioners in Dauphin County, Pennsylvania.

On the fourteenth day of June, A. D. 1916, the Comhy Judge of Cook County, Illinois, entered an order assessing an inheritance tax of said estate of two hundred eighty-eight and 01/100 dollars ($288.04), and same was paid to County Treasurer of Cook County, less a discount of five per cent.

Thereafter, on the fifth day of September, A. D. 1918, the acting County Judge of Cook County entered an order vacating and setting aside for want of jurisdiction, so much of said order as attempted to assess a tax upon transfer by said decedent of shares of stock in foreign corporations, and which were included in said order of assessment. On hearing the County Court, granted prayer of petition and found that the said prior order validly assessed a tax less discount of two hundred three and 05/100 dollars ($203.05); and that claimants (petitioners) were entitled to a refund of seventy and 59/100 dollars ($70.59).

The evidence in the case is sufficient. In case number thirty-three, of Lora J. Moore, Executrix, etc., v. State filed at this term, it was stipulated and agreed by the Attorney General for the State and Walter Iv. Lincoln, attorney for claimant, and that the finding and opinion in said cause should govern the case at bar, and quite a number of other cases mentioned in the stipulation, except as to the amounts to be allowed.

The Attorney General admits that if a refund is granted in said case of Lora J. Moore, Executrix, v. State, that claimant herein is entitled to a refund of seventy and 59/100 dollars ($70.59).

For reasons for this allowance see opinion in said Lora J. Moore case above referred to.

The Court awarded a refund in said Lora J. Moore case, and agreeably to the stipulation mentioned and from evidence submitted in this case, the Court awards the claimant the sum of seventy and 59/100 dollars ($70.59) refund.


text:
    John M. Campbell, et al, Executor of the Estate of Brent Good, Deceased v. State of Illinois.

      Opinion filed January 30, 1919.

    Inheritance Tax — Lora J. Moore, et al v. State, Supra, followed. This case is controlled by the decision of the Court in the case of Lora J. Moore, et al v. State, Supra.

    Edward J. Brim dago, Attorney General, for State.
   The facts in this case as disclosed by the evidence and amitted to be true, are as follows: Brent Good died testate, on the tenth da}- of September, A. D. 1915, a resident of Long Branch, Neiv Jersey, and letters testamentary were issued in that State to John M. Campbell on said estate. No administration was had in Illinois. On the twentieth day of November, A. D. 1916, the County Judge of Cook County- entered an order purporting to assess an inheritance tax in said estate of seven hundred ten and 73/100 dollars ($710.73), which amount plus the interest, was paid to County Treasurer of Cook County, November 28, 1916, in the sum of seven hundred fifty-five and 61/100 dollars ($755.61).

Thereafter, on the fifth day of September, A. D. 1918, the acting County Judge, on petition duly presented, entered an order vacating and setting aside for want of jurisdiction, so much of said prior orders attempted to assess a tax on the transfer by said decedent of shares of stock in foreign corporations to non-resident beneficiaries. The Court found that a valid tax of two hundred fifty-one and 58/100 dollars ($251.58) was assessed, which the State admits to be correct. That five hundred four and 23/100 dollars ($504.23) was illegally assessed and should be refunded to the petitioners.

The Attorney General admits in this case that if a refund is granted in the case of Lora J. Moore, Executrix, v. The State, number 33 (and decided at present term of this Court) then claimant herein is entitled to a refund of five hundred four and 23/100 dollars ($504.23).

, Said case above mentioned was decided on, an opinion filed at present term of this Court awarding a refund to the claimant. In said case, it was stipulated by counsel for the respective parties that finding of the Court in that case should govern the finding in the case at bar, and many other eases where the facts were substantially the same as in the Moore case.

Taking the evidence herein, and the stipulation into consideration, the Court awards a refund for claimant in the sum of five hundred four and 23/100 dollars ($504.23).


text:
    Boston Safe Deposit and Trust Company, Trustee of the Estate of Benjamin W. Parker, Deceased v. State of Illinois.

      Opinion filed January 30, 1919.

    Inheritance Tax — Lora J. Moore, et al v. State, Supra, followed. This ease is controlled by the decision of the Court in the ease of Lora J. Moore, et al v. State, Supra.

    Edward J. Brundage, Attorney General, for State.
   The facts in this case shown by the evidence on file herein are as follows:

Benjamin W. Parker died on 11th day of December, 1910, a resident of Winthrop, Massachusetts.

Ho administration was had in this State, but by order of Probate Court of Suffolk County, Hassaehusetts, the claimant herein the Boston Safe Deposit and Trust Company was appointed trustee of said estate under the will of said decedent.

On the 17th day of August, 1916, the County Judge of Cook Count)', Illinois, entered an order purporting to assess an inheritance tax of $1,324.08 in said estate, and on the 17th day of August, 1916, the claimant herein paid to the county treasurer of said county of Cook the sum of $1,775.27, being amount of taxes plus 6% interest puiqiorted to be assessed by said order.

Therefore on the 5th day of September, 1916, the Acting County Judge of said Cook County, upon petition filed and presented by claimant herein entered an order vacating and setting aside for want of jurisdiction said order in so far as it purported to assess a tax upon the transfer by will of the decedent to now resident beneficiaries of shares in foreign corporations.

Such order did find that the said prior order validly assessed in said estate the sum of $1,025.34 and that the interest due thereon up to date of payment equaled $1,373.93 and that $401.32 was illegally assessed, and that said original order was void as to that extent for lack of jurisdiction.

The facts in this case are identical, except as to amounts as those" in case No. 33, Lora J. Noore, executrix v. State (opinion filed at present term of this Court) and counsel in said case stipulated and agreed in, therein that the finding in said case should govern in this (and quite a number of other cases) and that in the event that a refund should also be allowed in the case at bar.

An opinion allowing a refund in said Lora J. Moore case was filed at present term of this Court.

For reasons for allowance of the claim in said cause see opinion in said No. 33, Moore v. State, and also Oakman v. State.

For the reasons stated in said eases and from the evidence herein the court awards claimant herein a refund of four hundred and” one and 32/100 dollars.


text:
    Charles H. Bissell et al, Executors of the Estate of Jane C. Gillette., Deceased v. State of Illinois.

      Opinion filed January 30, 1919.

    Inheritance Tax — Lora J. Moore, et al. v. State, supra, followed. This case is controlled by the decision of the Court in the case of Lora J. Moore, et al. y. State, supra.

    Edward J. Brundage, Attorney General, for State.
   This is a claim for refund of $48.60 inheritance tax erroneously paid. The facts disclosed by evidence herein are as follows:

Jane C. Gillette died testate October 31st A. D. 1915, a resident of Salisburg, Connecticut.

Ho administration was had in this State, and Charles H. Bissell, Frank A. Hotchkiss and Bankers Trust Company of Hew York were appointed executors of the will of decedent by order of the Probate Court of Salisburg, Connecticut.

On the 25th day of April, 1916 the County Judge of Cook County, Illinois entered an order purporting to assess an inheritance tax in said estate of $674.66 which amount less discount for payment within six months, on the 28th day of April, 1916, the claimant paid to the county treasurer of said Cook County, the sum so paid being $640.93 net.

Thereafter the petitioners (claimants) filed a petition in the said County Court praying that said order be decreed to be null and void for want of jurisdiction in so far as it attempted to tax the transfer.of decedent of stock of foreign corporations to non resident beneficiaries, and on the 5th day of September, 1918, the said county found that said prior order validly assessed a tax less 5% discount of $592.27 which amount it admitted should have been paid under said prior order.

$48.66 the Court found to have been erroneously assessed and erroneously paid.

In the case of Lora J. Moore v. State, No. 33, in which an opinion was filed at the present term of this Court the facts in the case were identical with this case except as amounts, and it was stipulated and agreed in said • cause by counsel representing the parties that if an award for refund should be made for claimant therein that then the claimant in this case is also entitled to a refund.

In this case at bar it is admitted by the Attorney General that if a refund is granted in the case of Lora J. Moore, etc. v. The State, claimant herein is entitled to a refund of $48.66.

For reasons allowing such claim in the said case of Lora J. Moore, etc. v. State, we refer to the opinion filed therein at the present term of this Court.

For the reasons therein expressed, which are applicable also to this case, and from the evidence herein we are of the opinion that claimant is entitled to a refund of the taxes so erroneously paid and we accordingly award to claimants herein the sum of forty-eight and 66/100 dollars.


text:
    Henry Purcell, Executor of the Estate of Theodore B. Basselin, Deceased v. State of Illinois.

      Opinion filed January 30, 1919

    Inheritance Tax — Lora J. Moore, et al v. State, supra, followed. This case is controlled by the decision of the Court in the case of Lora J. Moore, et al. y. State, supra.

    Edward J. Brundage, Attorney General, for State.
   The facts in this case stated below arc proven by the evidence 'herein to-wit:

Theodore B. Basseline died testate on the 19th day of April, A. D. 1914, a resident of the state of Hew York and letters of administration were issued to Henry Purcell, claimant, in said State no administration was granted in this State.

On the 25th day of April, 1916, the County Judge of Cook County, Illinois, entered an order purporting to assess an inheritance tax in said estate of $107.53, which amount plus interest was by claimant paid next day to County Treasurer of Cook County, total being $120.07.

Thereupon on September 5th, 1918, the acting County Judge of said county entered an order vacating and setting aside for want of jurisdiction so much of said original order as attempted to assess a tax upon the transfer by decedent of shares of stock in foreign' corporations to non-resident beneficiaries.

And it was found that with the elimination of the foreign stock from such assessment there was no tax property due or assessable or validly assessed by said order, the Court having no jurisdiction.

This case is governed by the finding by this Court in case No. 33, Lora J. Moore, Executrix, v. State, filed at this term, in which the Court made an award of refund of taxes erroneously paid, etc.

It was stipulated by the parties in said case that the finding- and decision of the Court therein should govern in this case (and several others) except as to the amount.

For the reasons stated in said case and also in Oakman v. State, filed at this term and from evidence on file herein the Court awards claimant the sum of one hundred twenty and 70/100 dollars, the same being admitted to be correct and payable herein the event of a refund in said No. 33 above referred to.


text:
    L. Rodgers Wentworth et al, Executors Estate of Clare E. Seabury, Deceased v. State of Illinois.
    Opinion. filed January 30, 1919.

    Inheritance Tax — Lora J. Moore, et al. v. State, supra, followed. This case is controlled by the decision of the Court in the case of Lora. J. Moore, et al. v. State, supra.

    Edward J. Brundage, Attorney General, for State.
   The facts in this case, as disclosed by the evidence on file are aS follows:

Clara E. Seabury, died testate on the 5th day of January, A. D. 1916, a resident of New York City, New York.

L. Dodgers Wentworth and Albert H. Seabury were duly appointed in that State executors of the will of said decedent, on the 22nd day of June, 1916, the County Judge of Cook County, Illinois, entered an order assessing an inheritance tax in said estate of $1,142.28, which amount less 5% discount for payment within six months was by claimant paid to the County Treasurer of said county on 26th day of June, 1916, the net payment being $1,085.17.

Thereafter on 5th day of September, A. D. 1918, the acting County Judge of Cook County entered an order vacating and setting aside for want of jurisdiction, so much of said prior order as attempted to assess a tax upon the transfer by said decedent of shares of stock in foreign corporations to non-resident beneficiaries, and it was found in such order that the said prior order of the County Judge assessed a valid tax, less discount of $925.21, which amount the State admits should have been the true amount in the original order $159.96 of said prior order was declared illegally assessed for want of jurisdiction. The State admits that in the event a refund is allowed in case No. 33 Lora J. Moore, Executor, v. State (opinion filed at the present term of this Court) that $159.96 should be allowed in this case agreeably to a stipulation and agreement entered into in said case.

The opinion given in that case and the law governs in this case. Accordingly the Court awards claimant herein the sum of one hundred fifty-nine and 96/100 dollars.


text:
    United States Trust Company of New York, Executor of Estate of Catherine Wolfe Loney, .Deceased v. State of Illinois.

      Opinion filed January 30, 1919.

    Inheritance Tax — Lora J. Moore, et al. v. State, sxipra, followéd. This ease is controlled by the decision of the Court in the case of Lora J. Moore,, et al. v. State, supra.

      ' Edward J. Brundage, Attorney General, for State.
   The facts in this case as disclosed by the evidence are as follows:

Catherine Wolfe Loney died testate on the 7th day of May, 1915, a resident of the state of New York, and letters testamentory were issued to United States Trust Company of New York, no administration was had in Illinois.

On the 25th day of April, 1916, the County Judge of Cook County,. Illinois, entered an order purporting to assess an inheritance tax in said estate of $762.65, which amount, together with interest, was on the 25th day of April, 19)16, paid by claimant to county treasurer of said county.

Thereafter on the 5th day of September, 1918, the Acting County Judge of said Cook County entered an order vacating and setting aside for want of jurisdiction, so much of said prior order as purported to assess a tax upon the transfer by said decedent of shares of stock of foreign corporations to non resident beneficiaries.

And it was found that the said prior order assessed a valid tax, to the extent of $603.07, which amount the State admits is the true amount that should have been taxed and paid.

The State admits in this case that if a refund be granted in No. 33, Moore, executrix v. State of Illinois (opinion filed at present term of this court) that claimant in this case is entitled to a refund of $205.34,. the amount erroneously paid.

This consent of the Attorney General is based upon a stipulation filed in said case that the facts and law governing in the Moore case is to govern in this (and others) case except as to amount.

Upon the evidence and stipulation the Court awards claimant herein a refund of two hundred and five and 34/100 dollars.


text:
    William E. Mooney v. State of Illinois.

      Opinion filed January 30, 1919.

    Expenses Legislative Committee — when State not liaMe. A Legislative Committee after the final adjournment of the General Assembly is without authority to incur expenses or create a liability against the State.
    Edward J. Brundage, Attorney General, for State.
   The claimant claims compensation for services rendered and moneys expended in behalf of a committee appointed by the Legislature under House Joint Resolution No. 21, adopted by the 49th General Assembly. The Legislature at the 1915 session appropriated the sum of $10,000.00 for the expenses of said committee. The evidence shows that this committee met and that claimant performed his services after the 1915 session of the Legislature had adjourned. The evidence further shows that the committee met and organized in July, 1915, and that on July 7, 1915, the claimant was appointed as attorney, assistant secretary and investigator for said committee.

Under the decision of the Supreme Court in the case of Fergus v. Russell, 270 Ill., 304, and under the provisions of the State Constitution, we are of the opinion that the committee acted without authority after the adjournment of the Legislature and that the State is not liable for any services or expenses incurred by the committee or by anyone employed by the committee after the sine die adjournment of the Legislature.

The claim is therefore rejected.


text:
    Charlotte Phillips, et al v. State of Illinois.

      Opinion filed January 30

    Inheritance Tax — exemption. When estate not liable to tax. Refund. Where the widow, who is a life tenant of the testator, dies before any of the children of testator who are devisees under the will, the children are each entitled to an exemption of $20,000.00, upon the valuation of their respective shares.

      Refund — when refund will be made. Where inheritance tax has been assessed, and paid, under Section 25, and afterward the beneficiaries become vested with entire estate, and after allowing the exemption, it is found no tax is due the State, claimant is entitled to a refund of the tax paid.
    Edward J. Brundage, Attorney General, for State.
   The petitioners, Charlotte Mary Phillips, Ivate Edith Poyal, Bryon Calm Player, Anna Louise Player, Kewton John Player and Milton Player, the latter as sole surviving executor and the other as only heirs at law of John Player, deceased, claim a refund of $926.38 inheritance tax paid, and statement of facts as follows:

John Player died testate August 14, 1914, and Milton Player and Charlotte Player, widow, were appointed executors of the last will and testament of decedent.

The above named six petitioners were the only children and heirs at law left by him surviving, who took as legatees in the will the property of decedent in equal parts, except a very few small bequests.

The inheritance tax was assessed, levied and collected against said estate or estates in remainder so devised to said children to the amount of $926.38 on the estate appraised at $117,513.14, allowing but one exemption of $20,000.00, which was allowed to Bryon Calm Player.

The said widow was a life tenant also died April 7th, 1917, leaving her surviving the said same six children of herself and her said husband.

By reason of the death of the said Charlotte Player, widow before the death of any of the children, legatees and devisees of said John Player deceased, each of said children was and is entitled to $20,000.00 upon the value of their respective shares and devisees and for such reason the said tax of $926.38 so paid in as aforesaid should be refunded to all of said petitioners except Bryon Calm player, with 3% interest per annum from February 13, 1915.

The State by its counsel, Edward J. Brundage, Attorney General, says the evidence shows that claimants are entitled to. a refund of said sum under section 25 of the inheritance laws with interest as stated, but in order to make the facts clearer states that the will directed that some of the remainder should be given certain real estate at certain valuation as per their respective shares.

The claimants evidently stated their case on the assumption that the shares will all be equal and hence below the exemption, as to each.

That in view of the provisions of the will while their shares will be considered equal, the actual value of their shares will not be equal.”

The State admits that the actual value of the property to be delivered in kind differs so slightly from the valuations placed, thereon by the testator that there will be no inheritance tax in this estate as to these remainders, and it so held by the Court and an award of $936.38 with 3% interest per annum from February 13, 1915, is hereby made in favor of the claimants for the use of the claimants, except Bryon Calm Player.


text:
    Edward S. Harkness, Executor of the Estate of Charles W. Harkness, Deceased v. State of Illinois.

      Opinion filed January 30, 1919

    Inheritance Tax — when entitled to a refund. Where upon appeal from the order of the county judge assessing an inheritance tax the amount of the assessment is reduced claimant is entitled- to a refund of difference between the amount of tax paid under the original order and the amount of tax fixed by the County Court upon the appeal.

      Interest — Section 10, Inheritance Tax Law. Ño interest can be allowed on refund under Section 10, of Inheritance Tax Law.
    Section 10, and Section 25, Inheritance Tax Law — construed. Section 10, and Section 25 of Inheritance Tax Law are not Pari Materia and the refund of tax mentioned in Section 25 cannot be construed so as to justify an allowance of interest on refund under Section 10.
    Edward J. Brundage, Attorney General, for State.
   The facts in this case as disclosed by the evidence are as follows: On the first day of May, A. D. 1916, Charles W. Harkness died testate, a resident of Hew York, and letters testamentary were issued to Edward S. Harkness, the Complainant, in Hew York, October 15, A. D. 1916, an appraisement was made of the property of decedent and filed in County Court in Cook County, and the County Judge entered an order thereon assessing an inheritance tax in said estate, due to the State of Illinois, the sum of fifty-four thousand two hundred thirty-two and 66/100 dollars ($54,232.66), the property upon which sum was assessed was valued at two million seven hundred eleven thousand six hundred thirty-three and 07/100 dollars ($2,711,633.07).

An appeal in due time was presented to the County Court of said county, and by order of County Court on hearing on such appeal, the amount was reduced to five hundred seventeen thousand six hundred twenty-four and 50/100 dollars ($517,624.50), and the entire tax to be paid therein was found to be ten thousand three hundred fifty-two and 50/100 dollars ($10,352.50). Ho appeal was ever presented from such decision.

The original amount of fifty-one thousand five hundred twenty-one , and 03/100 dollars ($51,521.03) was paid by claimant before the appeal was taken under this modification, claimant was liable for the payment of only nine thousand eight hundred thirty-four and 87/100 dollars ($9,834.87), which, taken from fifty-one thousand five hundred twenty-one and 03/100 dollars ($51,521.03), leaves forty-one thousand six hundred eighty-six and 16/100 dollars ($41,686.16), due on refund to claimant. Claimant made demand upon the county treasurer and State Treasurer for a refund of same and was refused. He, therefore, files claim herein for said over-payment, and for interest paid on the taxes so erroneously paid.

The claim is made- for refund for taxes erroneously made under Section Ten. The provision in Section Twenty-five of the Inheritance Tax Law for three per cent interest does not apply to refund under Section Ten, of the same law. Hess v. State, 2 Ct. 1 Rep. 321-322. William v. State, 2 Ct. 1 Rep. 346-347.

The two sections mentioned relate to different kinds of refunds and the two sections are not pari materia to the extent that the provision for interest in Section Twenty-five can be applied to Section Ten in our opinion. Interest will be disallowed.

The State admits its liability herein as expressed by the Attorney General in writing herein, and it is, therefore, ordered that claimant have refund of forty-one thousand six hundred eighty-six and 16/100 dollars ($41,686.16).


text:
    Inanda M. Edwards, as Trustee Under the Last Will and Testament of Knutt E. Edwards, Deceased v. State of Illinois.

      Opinion filed January 30, 1919.

    Inheritance Tax — when claimant entitled to a refund. Whsre under the provisions of a will an interest is bequeathed to a daughter of the testator to be held in trust by the executor of the estate until she arrives at the age of twenty-five years, and upon proper inheritance tax proceedings a tax is assessed at the highest rate possible under Section 25 of the Inheritance Tax Law, and is paid, and afterwards the daughter arrives at the age of twenty-five years and becomes vested with the full beneficial interest in the property devised she is entitled to a refund under the provisions of said Section 25.
    Edward. J. Brundage, Attorney General, for State.
   The evidence as in this case discloses that claimant is the Executor of the estate of Rnutt E. Edwards, who departed this life in Cook County, Illinois, testate, on or about the eleventh day of January, A. D. 1913, leaving petitioner, his widow, and Esther I. Edwards, (now Kencken) his daughter, and only heir at law him surviving. A copy of the will is attached to the petition, which bequeathed one-third (1/3) of the estate to the widow, and the remaining two-thirds (2/3)' to the daughter, to be held by claimant in trust for said daughter, till she reaches the age of twenty-five years, and that in the event, said daughter should die before reaching the age of twenty-five years, the said two-thirds (2/3) so bequeathed to her should go to deceased’s surviving brothers and children of his deceased brothers.

At the time the inheritance tax was assessed and paid into the State Treasury, said daughter had not reached the age of twenty-five years, and her interest was accordingly subject to be defeated in favor of the said brothers, nephews and nieces of'deceased, in the event she should die before attaining the age of twenty-five years; and that thereafter it became necessary to impose an inheritance tax on that part of said estate upon the basis of a nephew or niece or testator being the beneficiary at the higher tax rate of four per cent in such case made and provided.

Proceedings were had in the County Court to appraise the property and the estate was appraised at sixty thousand seven hundred sixty and 32/100 dollars ($60,760.32) and a tax levied as follows: Inanda M. Edwards, widow, one-third (1/3) entire estate clause two of will, twenty thousand two hundred fifty-three and 44/100 dollars ($20,-253.44) less exemptions, twenty thousand dollars ($20,000.00) — ■ $253.44, rate one per cent (1%) — $2.53, Inanda H. Edwards.

Trustee for use and benefit of a child of a deceased brother of decedent two-thirds (2/3) of estate distributed* for taxation under section twenty-five, inheritance tax laws — forty thousand seven hundred sixty and 32/10Ó dollars $40,760.32) less exemption — twenty thousand dollars ($20,000.00) equal thirty-eight thousand five hundred sixty and 88/100 dollars ($38,560.88) at four per cent, equal one thousand five hundred forty and 20/100 dollars $1,540.20) tax, making a total of one thous- and five hundred forty-two and 81/100 dollars ($1,542.81). On the thirteenth day of June, A. D. 1913, the executor paid the County Treasurer said sum last mentioned less five per cent for paying in the taxes inside of six months, making a net amount so paid in of one thousand four hundred sixty-three and 27/100 dollars ($1,463.27).

The. said Esther I. Edwards (now Esther I. Kencken) arrived at the age of twenty-five years on the fourteenth day of December, A. D. 1917, and upon the happening of such contingency she became and is now vested with the full beneficial 'interest in said property and estate on which the inheritance tax was imposed at the rate of four per cent as aforesaid. The evidence supports the facts above set forth and by calculation it is shown that claimant is entitled to a refund of twelve hundred sixty-eiglit and 45/100 dollars ($1,268.45) with interest thereon at three per cent from June 13, A. D. 1913, and claimant is therefore, awarded the sum of twelve hundred sixty-eight and 45/100 dollars ($1,268.45) with interest at three per cent premium thereon from June 13, A. D. 1913.


text:
    Herbert F. Perkins, Executor of the Estate of Franklin H. Head, Deceased v. State of Illinois.

      Opinion filed January 30, 1919.

    Inheritance Tax. Refund. Deed as an equitable mortgage. Where it is shown that a deed is an equitable mortgage, and that an excessive valuation was placed upon the lands by the appraisers, and the County Court upon appeal orders a refund of the over-payment of the tax erroneously made, t-his Court will enter an award for the amount of the tax over-paid according to the findings of the County Court.
    Edward J. Brundage, Attorney General, for State.
   Franklin H. Head died testate June 28, 1914, a resident of Illinois, and Herbert F. Perkins, Elizabeth Head Gates, and Henry D. South-well were only appointed executors of the last will and testament of the decedent.

An appraiser was appointed by the judge of the County Court, Cook County, who filed his appraisement on the first day of October, A. D. 1914, which contained amongst other articles, Item Humber 78, which described certain lands belonging to decedent, and a valuation placed thereon of eighty-five thousand dollars ($85,000.00). On the twenty-eighth day of December, A. D. 1914, the County Judge entered an order fixing the inheritance tax at eight thousand three hundred sixty and 69/100 dollars ($8,360.69), which amount, less five per cent discount — seven thousand nine hundred forty-two and 66/100 dollars ($7,942.66) was paid on same day by claimant to the treasurer of said county.

At time order was so made litigation was pending in the Circuit Court of ICane County, Illinois, wherein it was shown in said Court that the decedent’s claim or title to said lands described in item Humber 78 was only an equitable mortgage upon said- lands. Said premises were shown to be worth twenty thousand dollars ($20,000.00), and hot worth eighty-five thousand dollars ($85,000.00) as fixed by appraiser and approved by County Court.

An appeal was in due time prayed and perfected to the County Court, and on consideration of the same and subsequent proceedings properly had the County Court on the twenty-first day of March, A. D. 1918, decreed and ordered a refund to the executors of the said estate of twelve hundred thirty-five and 01/100 dollars. ($1,235.01) as overpayment erroneously made. Ho appeal has been prosecuted from such judgment.

From the evidence herein, it is clear that the claimant is entitled to the refund claimed.

The Attorney General in written statement, admits that the claimants are entitled 'to a refund herein of twelve hundred thirty-five and 01/100 dollars ($1,235.01). The claimants are accordingly awarded a refund of twelve hundred thirty-five and 01/100 dollars $1,235.01).


text:
    Martua Ruddy Leet v. State of Illinois.

      Opinion filed January 30, 1919.

    Inheritance Tax — refund under Section 25. There being no dispute as to the facts and law governing this case, the Court enters an award for the amount of the claim.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for refund of inheritance tax under section twenty-five of the inheritance tax laws of Illinois, in the sum of forty-six hundred ninety-nine and 97/100 dollars ($4,699.67), with interest thereon at three per cent per annum from February 17, A. D. 1911.

The evidence on file fully supports the facts alleged in declaration, and it is admitted by the Attorney General in writing, that under said section the claimant is entitled to a refund of four thousand six hundred ninety-nine and 67/100 dollars - ($4,699.67).

The Ctourt, therefore, awards claimant 'the sum of four thousand six hundred and ninety-nine and 67/100 dollars ($4,699.67), with interest at three per- cent from February 17, 1911.


text:
    Joseph Ryan v. State of Illinois.

      Opinion filed January 30, 1919.

    Governmental Function — Joliet Pententiary. Not liable to inmates for injuries received by them. The State in conducting and operating the Penitentiary at Joliet exercises a governmental function and is not liable to an inmate thereof who is injured while performing the duty assigned to him by the officers, agents or employees of that institution.

      Same — employment of inmates. The employment of the inmates of the institution at labor is merely incidental to and a part of the governmental function of the State, and is not a separate and distinct enterprise conducted by the State for profit.

      Same — purpose of employment of inmates. It is only a method by which the inmates carry out the sentence imposed upon them by the Court.
    Respondeat Superior — not repealed by Act creating Court of Claims. The doctrine of Respondeat Superior was not repealed by the Act of 1917 creating the Court of Claims.
    Edward J. Brundage, Attorney General, for State.
   The claimant, Joseph Ryan, seeks to recover damages for injuries which he claims were received by him on Sept. 15, 1916, on the quarry train at the Joliet penitentiary where he was serving his term as a prisoner on conviction for the crime of larceny. He was assigned by one ICelly, superintendent of the stone quarry operations, to the duties of brakeman on the quarry train which conveyed stone from the quarry to the main line of the railroad. It was a narrow gauge railroad and on it were operated a small engine and small cars. Claimant claims that while making the coupling of two loaded stone cars, his foot became wedged between a guard rail and the main rail and before the train could be stopped, several loaded cars of stone passed over his foot and it was severed- above the ankle. In attempting to dislodge the wedged foot with his right hand, the hand was also severed. Plaintiff was treated at the prison hospital and the foot and hand were amputated there.

The evidence as to how the injury occurred is practically undisputed. The evidence, however, tends to show that said Kelly had given said Ryan and other brakemen directions that they should not steji over the outside rail of the narrow gauge track when making a coupling, and when Mr. Ryan was injured, it seems that he was violating orders given him by his superior. It appears also from the evidence that the track was quite narrow and that Ryan could have worked on the outside of the rail of the track and reached over about two feet with his hand and coupled the cars without stepping over the rail between the cars.

The State has filed a demurrer to the declaration, setting up that the doctrine of respondeat superior is not applicable to the State; that in the absence of Statute, the State is not liable for the torts of its officers, agents and emplo)rees and that in conducting the State penitentiary at Joliet, the State is exercising a governmental function and is not liable for injuries to the inmates thereof or those it employs.

In our view of this case, it is not necessary to discuss the evidence in detail. This Court, as well as the Superior Court of the State, has repeatedly held ‘that the rule of respondeat superior is not applicable to the State’,- — -Jasper v. State, 2nd Court of Claims, 323; Taylor v. State, 2nd Court of Claims, 243, and Elmore v. Drainage Commissioners, 135-Ill., 269., and this Court has also held ‘that the State is conducting its penitentiary, is exercising a governmental function and is not liable for damages’, — Taylor v. State, 2nd Court of Claims, 243. The quarrying of the stone in the Joliet penitentiary is merely incidental to and a part of the governmental function of conducting the penitentiary and it cannot be said that it is a separate and distinct enterprise conducted by the State for profit, but is part of the plan for providing employment for the inmates of the institution and of carrying out the sentences of hard labor imposed on them. The general doctrine held by the Courts of the different states seem to be that ‘public officers having the custody of prisoners are not liable to a prisoner for injuries caused by defective machinery with which he was put to work, nor is a municipality liable/' O'Hare v. Jones, 161 Mass. 391; Alamago v. Albany Company, 25 Hun. (N. Y.), 551; Lewis v. State, 96 N Y. 71.

We quote from part of the decision in the latter case, as follows:

“The claimant was not a voluntary servant for hire and reward nor was the State his master in any ordinary sense. He was compelled to labor as a means of reformation and to endure imprisonment as a punishment and for the protection of the community. While employed lie was subject to such regulations as the keeper charged with his custody might from time to time prescribe, and if, in the course of service, lie sustained injury, it must be attributed to the cause which placed him in confinement.” We think that this doctrine is applicable to the case at bar, aside from the rule that the doctrine of respondeat superior is not applicable to the State.

Counsel for claimant contends that the Act of 1917, creating the Court of Claims, has practically repealed the rule that the doctrine of respondeat superior does not apply to the State, and that this Court should hear and allow claims of this kind on the ground that they should appeal to the good conscience and equity of the Court. This Court has held in other cases presented at this term of Court, that said Act does not authorize this Court to allow any claims which are not based on principles of law .and equity, however much such cases might appeal to the sympathies of the Court.

We are therefore of the opinion that the state is not liable in this case and that the demurrer to the declaration should be sustained. The claim is therefore rejected.


text:
    Walter G. Oakman, et al, Executors of the Will of Andrew Freedman, Deceased v. State of Illinois.

      Opinion filed January 30, 1919.

    Inheritance Tax — transfer of stock of foreign corporation to non-residents. Jurisdiction. The County Court to hear and determine whether an inheritance tax is due on the" succession to property it must have jurisdiction over the beneficiary of the property or its judgment will. be void. (Oakman v. Small, 282 111. 360.)

      Title — to excess of the legal tax does not vest in State. The title to the excess of the legal tax does not vest in the State but belongs to the beneficiaries under the will.
    Valid Claim — what is for refund. Where the County Court finds the amount of tax paid to be in excess of the tax legally due the State it is proper to order a refund of the amount of the excess found to be erroneously paid, and a claim for such excess tax is a valid one against the State.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for refund of inheritance tax alleged to have been erroneously paid by the claimants.

.Briefly, the facts are as follows: Andrew Freedman died on December 24, A. D. 1915, a resident of the State of New York, leaving a last will and testament, in which, petitioners were named as executors in the State of New York.

On the twenty-fourth day of May, 1916, the County Judge of Cook County, Illinois, entered an order assessing a tax in the aggregate of two thousand one hundred twenty-three and 95/100 dollars ($2,123.95) as being due the State of Illinois as inheritance tax. On the twenty-fourth day of May, A. D. 1916, the co-executors, after deducting 5% paid into the treasury, two thousand seventeen and 75/100 dollars'($2,017.75).

All of said tax of two thousand one hundred twenty-three and 95/100 dollars ($2,123.95), except two hundred thirty-four and 60/100 dollars ($234.60) ivas fixed and assessed the succession to, or transfer of stock of corporations organized and existing under and by virtue of the laws of States other than the State of Illinois; and that neither the said Andrew Freedman, nor the beneficiaries under his will were residents of Illinois.

On petition duly presented to the County Court of Cook County on the twenty-fourth day of May, A. D. 1916, was asked to set aside and vacate said order of assessment, and that it be declared null and void, in so far as it fixed or assessed a tax upon the succession or transfer of stocks of said foreign corporations. On motion the petition was stricken from the files by the County Court, whereupon, petitioners prayed an appeal to the Supreme Court of Illinois, and upon a hearing the Supreme Court reversed the order, striking the petition from the files (Oakman v. Small, 282 Illinois, 360). Pursuant to the mandate of the Supreme Court, the lower Court set aside and vacated its order so entered on the twenty-fourth day of May, A. D. 1916, and fixed and assessed a 'tax of two hundred thirty-four and 60/100 dollars ($234.60), as due the State of Illinois as inheritance tax, and found that said County Court had no jurisdiction to assess the remainder of the tax fixed and assessed as aforesaid; and entered a decree declaring “the order fixing the remainder of the amount so assessed, null and void, and that the said balance, one thousand seven hundred ninety-four and 88/100 dollars ($1,794.88) was erroneously paid, and that it should be refunded to petitioners by the State of Illinois, and that they make application accordingly,” etc.

Claimants also ask that the State pay the costs advanced by appelants in said case and filing fee, amounting in all to forty-five dollars ($45.00). Later, on the twenty-fifth day of April, A. D. 1918, the said County Court vacated its last order above referred to, and entered a decree, declaring that the sum of one thousand eight hundred sixteen and 93/100 dollars ($1,816.93) was erroneously paid, and ordered a refund of said amount, as erroneously paid; and that the actual amount due the State is two hundred and 82/100 dollars ($200.82) after deducting 5%. The claimants present their amended claim showing that one thousand eight hundred sixteen and 93/100 dollars ($1,816.93) (instead of one thousand seven hundred ninety-four and 88/100 dollars ($1,794.88) be refunded, and asking that the forty-five and 20/100 dollars ($45.20) paid out and expended as costs as aforesaid be also allowed to claimants, making a total of one thousand eight hundred sixty-two and 13/100 dollars ($1,862.13).

The record evidence supports all the allegations, and is virtually admitted as true. In defendant’s brief, it states that “Amounts paid under a void order of court, purporting to assess an inheritance tax are not erroneous inheritance taxes,” and that, therefore, the claimants are not entitled to refund.

In entering the original order of assessment, the County Judge erroneously included the sum of one thousand eight hundred sixteen and 93/1Ó0 dollars ($1,816.93), (after the 5% deduction) which, to that extent was declared by the decree of County Court to be void, as above mentioned. The assessment was in a sum total and purported to be a tar legally assessed.

The County Court found such excess to be a tax illegally assessed, and (by way of suggestion) ordered a refund of the amount so found erroneously paid.

In Hew York it was held that “Where there was no jurisdiction to assess United States bonds in an appraisement under the laws of 1892 (H. Y.) the surrogate has power to modify order without appeal and direct a refund, although the time of appeal has expired.

Matter of Coogan, 27 Miscellaneous Report (N. Y.) 563; affirmed 45 App. Div. (N. Y.) 628; 162 N. Y. 613.

Also see opinion in the case of Lora J. Moore, et al, executors of the estate of James Hobart Moore, deceased v. The State of Illinois, filed at the present term of this Court and numbered thirty-three (33). For a fuller discussion of the facts in this case at bar, see Oakman v. Small, 282 Illinois, 360.

Application was made in due time to the County Treasurer and to the State Treasurer for a refund of amount so erroneously paid, and no compliance with the request made.

From investigation we are unable to find where the State Treasurer has ever complied with a similar request, as no appropriation is made in anticipation of such claims. The title to this excess of the legal tax never became legally vested in the State. It belongs to the beneficiaries in the will. The beneficiaries were not entitled to a transfer of the property until the consent of the Attorney General and State Treasurer was obtained; and that cannot be obtained till the tax entered is paid. We take it that these taxes were paid under this state of affairs, and since the County Court has, under the mandate of the Supreme Court, found that the State is not entitled to the amount claimed by the claimants, we are, of the opinion that such amount was illegally assessed, erroneously paid, and that it constitutes, in this case, a valid claim against the State of Illinois. We believe that equity and good conscience require the same to be refunded by the State.

As to the amount of forty-five and 50/100 dollars ($45.50) claimed as costs against the State, we disallow same for the reason that the State is not liable for costs. We, accordingly award to the claimant a refund in the sum of eighteen hundred sixteen and 93/100 dollars ($1,816.93).


text:
    Philip C. Lindgren, Administrator C. T. A. of Estate of John K. Stewart, Deceased v. State of Illinois.

      Opinion filed January 30, 1919.

    Inheritance Tax — when refund will lie made. Where it is shown that an inheritance tax has been erroneously paid claimant is entitled to a refund under Section 10, of Inheritance Tax Law.
    Edward J. Brundage, Attorney General, for State.
   The evidence discloses that John IC. Stewart died intestate the first day of June, A. D. 1916, a resident of the town of Huntington, County of Suffolk, State of New York, and Philip C. Lindgren was duly appointed Administrator C. T. A. of the estate of said decedent, by Probate Court, Cook County, Illinois.

On the first day of December, A. D. 1916, the County Judge of Cook County entered an order fixing the inheritance tax in the said estate at sixty-five thousand eight hundred seventy and 67/100 dollars ($65,870.67), and that sixty-two thousand, five hundred seventy-seven and 14/100 dollars ($68,577.14) was paid, being the net amount due the State, after deducting the five per cent, etc.

Afterwards the claimant in due time appealed from such order to the County Court of Cook County, and the Court after hearing the evidence on the sixth day of June, A. D. 1917, entered a final order fixing the tax due the State at fifty-six thousand five hundred twelve and 41/100 dollars ($56,618.41), from which no appeal was prevented.

In said final order the Court found that claimant had paid into the County Treasury the sum of sixty-two thousand five hundred seventy-seven and 14/100 dollars ($68,577.14); that the claimant should have only paid fifty-three thousand six hundred eighty-six and 79/100 dollars ($53,686.79); that the sum of money, therefore, erroneously paid was eight thousand eight hundred ninety and 35/100 dollars ($8,-890.36), which claimant insists should be refunded.

The Attorney General and Floyd E. Britton, Assistant Attorney General, admit that the State should refund said sum claimed to have been erroneously paid.

The Court accordingly hereby awards claimant the sum of eight thousand eight hundred ninety and 35/100 dollars ($8,890.35).


text:
    Minnie P. Edwards, Executrix v. State of Illinois.

      Opinion filed January 30, 1919.

    Inheritance Tax — when claimant entitled to a refund. In this claim, there being no dispute as to the facts and law governing the same, upon proofs submitted, the Court finds that claimant is entitled to a refund under Section Ten (10) Inheritance Tax Law.
    Edward J. Brundage, Attorney General, for State.
   This is a proceeding brought by the claimant as executrix of the last will and testament of James A. Edwards, deceased, for the recovery of a part of an inheritance tax claimed to have been erroneously paid to the County Treasurer of Cook County, Illinois. The evidence shows that in computing the amount of the tax, the appraiser appointed by the County Court of Cook County, Illinois, refused to allow as a deduction the sum of $70,000.00 claimed to be involved in a suit pending against said James A. Edwards in the Superior Court of Cook County, Illinois, by one Luella Woods, and that the tax was fixed at the sum of $7,002.79. The evidence further shows that afterwards said suit was compromised for the sum of $30,000.00, which sum the executrix has paid.

A stipulation has been signed by the Attorney General agreeing that the modified order fixing the tax by the County Judge of Cbok County, a certified copy of which appears in the evidence, may stand and be accepted by this Court as the basis upon which this ease may be deterined. Said modified order finds the facts as above stated and further finds that the total tax which should have been assessed against said estate was $6,652.65 and that the total amount which should have been paid after deducting the discount was $6,003.99, and that the difference between the amount paid by the executrix to the County Treasurer and the amount which should have been paid, after allowing the discount of 5% is $648.66.

Section 10 of the Inheritance Tax Act provides for the refunding of any tax which has been erroneously paid to the State Treasurer. The claimant is therefore awarded the sum of $648.66.


text:
    Chicago Serum Company v. State of Illinois.

      Opinion filed January 30, 1919.

    Non-Liability of State — unauthorized act of officers or agents. The State is not liable for the unauthorized acts of its officers or agents.
    Public Policy — what acts of State officers or agents are against. It is against public policy to permit individual members of a Board to act without authority from such Board, itself acting at a regular or special meeting. To permit such a practice opens the door for the perpetuation of fraud.
    U. S. Government — action of, does not maleej the State liable. That the United States Government recognized the arrangement and paid its one-half of the appraised value of the serum does not make the State liable for the other half.
    Award of Appraisers — when null and void. An award fixed by appraisers who were appointed without authority of law is null and void.
    Edward J. Brundage, Attorney General, for State.
   In the year 1915, and for some time prior thereto, the plaintiff was engaged in the manufacture of a substance called Anti-hog Cholera Serum, which was claimed by said Company to prevent hog cholera when swine were innoculated with said substance.

The plaintiff has its principal place of business in the City of Chicago, and State of Illinois. In the fall of 1915 the foot and mouth disease was prevalent in Illinois and other States of the Union, among cattle and hogs. The plaintiff was distributing and selling its product among the hog raisers and the breaking out of the foot and mouth disease among hogs where the serum manufactured by the plaintiff was used, raised a grave suspicion in the minds of the public authorities, both State and National, that its serum was infected with the germ of the foot and mouth disease.

In October, 1915, the members of the State Board of Live Stock Commissioners, representing the State of Illinois, and an agent of the United States Department of Agriculture, met the business manager of the plaintiff and talked over with him the situation. It does not appear that the members of the Board of Live Stock Commissioners met as a board at this meeting, as there is no record of their meeting in the evidence in this case,, but after discussing fully the situation with the agent of the plaintiff, the members of the Board of Live Stock Commissioners of Illinois and the agent of the United States Agricultural Department on one part, and the Chicago Serum Company on the other, entered into a verbal agreement whereby it was agreed that the plaintiff should turn over to the Department of Agriculture of the United States Government and to the Board of Live Stock Commissioners of the State of Illinois, all senun in its possession; that said serum would be appraised by two persons, one to. be appointed by agents of the United States Agricultural Department and one by the members of the State Board of Live Stock Commissioners of Illinois, and that the plaintiff should be paid for said serum, whatever sum was fixed by the said appraiser one appraiser was appointed by the members of the Live Stock Commission of Illinois, and one by the Department of Agriculture of the United States Government. Said alleged appraisers met and adjudged that the senun of the plaintiff, to be turned over to the United States authorities and the Board of Live Stock Commission of Illinois, was valued at $10,106.58.

In all the dealings between the plaintiff and the Board of Live Stock Commissioners of Illinois, it does not appear that the board acted at any regular or special meeting. The business was talked over in a loose way by individual members of the board and no record was ever kept of any meeting or action had or taken by the Board of Live Stock Commissioners in reference to any of its dealings with the plaintiff. There was no adjudication or determination by any board, Court or tribunal as to whether the plaintiff's serum was infected with foot and mouth disease, or whether it was not. The plaintiff voluntarily surrendered and turned over the substance to the members of the Board of Live Stock Commissioners and to the agent of the United States Agricultural Department, upon the understanding that it was to be paid such price as was fixed by the persons alleged to be appraisers.

We do not believe that there is a legal claim against the State of Illinois by reason of this arrangement entered into by the plaintiff and the aforementioned parties. The members of the Board of Live Stock Commissioners of the State of Illinois had no authority whatever to enter into any such arrangement. There is no statute or law in this State by which the taxpayers of this State could be subjected to paying and compelled to pay for an alleged debt in this manner. The alleged appraisers had no standing before the law. They were not public officers nor appointed by any authority of law. They took no oath of office and there is no authority for appraisers to be appointed for such purpose and in such manner. So far as the liability of the State is concerned, the estimate of the appraisers is a nullity and absolutely void. There can be no foundation of a legal liability upon an award made by those men. It would be against public policy to allow officials of the State to enter into such loose transactions and unbusiness like dealings and to compel the taxpayers to be responsible for their unauthorized acts. The Board of Live Stock Commissioners never met and determined or adjudged whether this senun was infected or whether it was not, nor was it found out whether their suspicion was well founded or not. The plaintiff could have stood on its rights and before the property was confiscated or destroyed, compelled the State to establish the fact that it was infected, but the plaintiff seemed very glad of an opportunity to sell its product without such a determination, and the Board of Live Stock Commissioners seemed perfectly willing to avoid the personal or official responsibility of attempting to establish their allegation that the serum was infected. If this serum was poisoned and infected then the people of the State of Illinois ought not to pay a single cent to the manufacturer and distributor of such a dangerous nostrum. If it was not infected, then the State authorities had no right or authority under the law, to purchase and destroy this substance at -the expense of the taxpayers of the State.

There is no evidence in this case tending to show whether the substance was infected or whether it was not, but the alacrity of the plaintiff to sell the same to the State and Government authorities leads us. to believe that it had a suspicion of the substance as well as did the public officers involved. The fact that the United States Government afterwards recognized this arrangement and paid one-half of the appraised value of the product, does not establish the liability of the State of Illinois to pay for the other half sued for in this case. Altogether, we believe it would be against public policy to make an award in this case and put on approval the- loose conduct of all the parties concerned in the transaction here involved. If public officers can do business in the manner it is alleged they did in this ease, the doors for the perpetration of fraud would swing wide open and the taxpayers would have no protection whatever. The demand of the plaintiff is disallowed.


text:
    Robert Rohl, Sr. v. State of Illinois.

      Opinion filed January 30, 1919.

    Mistake of Law — not entitled to moneys paid under. Moneys voluntarily paid under a mistake of law cannot' be recovered.

      Same — under unconstitutional statute, no recovery. Moneys voluntarily paid under a mistake of law cannot be recovered even though the law under which it is paid is afterwards declared unconstitutional. Yates v. Royal Ins. Go., 200 111. 202.

      Payment — when not made under protest. Payment made after threat to bring suit for non-payment is not a payment made under protest.
    Edward J. Brundage, Attorney General, for State.
   In this case, claimant seeks to recover $400.00 for money he claims to have paid for his wife Anna Rohl while she was confined in the Southern Illinois Hospital for the Insane at Anna, Illinois, under the Act to revise the “law for charities, approved June 11, 1912.

The State, through the Attorney General, has filed a general demurer to the declaration and sets up in the brief that the statute under which this money was claimed to hav.e been paid, was declared unconstitutional and that as a matter of law, the payments claimed to have been made were voluntary, made under mistake of law, and cannot be recovered back. From the declaration and evidence in this case, it appears to us that these payments were voluntary and that they were not made under protest. The claimant sets forth that the managing board of the Anna State Hospital threatened him with suit, and that under such threat, he paid the sums of money. Payment of money under threat of commencing suit, is not a payment under protest, and it does not appear from the evidence or the declaration that any legal duress was exercised. Claimant should have resisted the payment, as was done in the Miles case, 278 Ill., 174, wherein this law was declared unconstitutional.

The Supreme Court in the case of the People v. Foster, 133 Ill., page 509, has held that where money is voluntarily paid under a mistake as to the law and under a claim of right, it cannot be recovered back, and in the case of Yates v. The Royal Insurance Company, 200 Ill.., page 202, the Supreme Court of this State decided that the mere fact that the statute imposing a tax is unconstitutional and the tax for that reason illegal, does not authorize recovery of the amount paid if it was paid voluntarily. This Court, in the Home Life Insurance Company case, in which an opinion was filed December 19, 1908, held that there can be no recovery of payments made under a mistake of law.

This Court, at this term, in the case of Popham, conservator, against the State, which was a case brought to recover money paid under this unconstitutional statute, held there was-no right of recovery.

The demurrer to the declaration is therefore sustained and the claim rejected.


text:
    Charles B. Osborne, Executor of the Estate of Lucius G. Fisher, Deceased v. State of Illinois.

      Opinion filed January 30, 1919.

    Inheritance Tax — entitled to refund. A reduction by the County Court, upon appeal, of the original assessment of an inheritance tax against an estate, will entitle claimant to a refund of the difference between the amount of tax paid under the original order of the County Judge and the amount found due by the County Court.
    Edward J. Brundage, Attorney General, for State.
   The facts in this case as disclosed by the evidence are as follows: Lucius G. Fisher, died testate March 20th, 1916, at Chicago, Illinois, and Charles B. Osborne, claimant, was duly appointed executor of the will of deceased.

An inventory was filed and an appraisement was submitted and approved by County Judge of said county and an inheritance tax assessed in said estate.

In due time an appeal was prayed to the County Court and on trial of said cause it was found that the total amount after deduction of 5%, etc., was $49,433.77.

Dnder the original order claimant had paid in $50,602.77.

The difference between the two amounts is $1,168.49, which claim claimant claims was erroneously paid and for which he asks a refund.

The Attorney General admits in writing filed in this cause that the State is liable to claimant for said sum.

Accordingly the claimant is awarded the sum of eleven hundred sixty-eight and 49/100 dollars ($1,168.49).


text:
    Walter J. North, Administrator of the Estate of James W. North, Deceased v. State of Illinois.

      Opinion filed March 3, 1919.

    Governmental Function — University of Illinois. The State in conducting the University of Illinois exercises a governmental function, and is not liable for injuries sustained by its employees.
    Employers Liability Act — University of Illinois not within its provisions. The University of Illinois, and its employees do not come within the provisions of the Employers Liability Act. (North v. University of Illinois, 201 App. 449.)
    Edward J. Brundage, Attorney General, for State.
   Findings of the law and fact made by the Court of Claims at the special request of Governor Frank 0. Lowden :•

The evidence shows in this case that from February 1st, 1913, until December 5th, 1913, James W. North, deceased, was employed by the Board of Trustees of the University of Illinois, in its medical department, at 508 Honoré street, Chicago, Illinois, as curator, at $70.00 per month. Among his duties was that of moving cadavers from' floor to floor of the medical school. These cadavers were delivered to him in the basement of the building by the Demonstrators’ Association, and were placed by him on a freight elevator and taken to either the fourth, fifth or sixth floor for preparation for dissecting.

North was last seen on the evening of December 4th, 1913. On December 5th, 1913, his body was discovered at the bottom of the elevator shaft with a dissecting table and a cadaver lying upon him. The elevator was on the sixth floor. The exact manner of his death, or the cause of the accident, is unknown, and does not appear from the evidence. The evidence shows that he fell through the elevator shaft with a cadaver and table. The fall was the cause of his death. A number of witnesses testified that the elevator was defective in minor matters, but there is no evidence showing or tending to show that these defects were the cause of the accident.

At the time of his death James W. North ivas an employe, as aforesaid, of the State University, and we find that his death grew out of his employment while working in the line of his duty. He left him surviving a wife and four minor children. He was the sole support of his family, and left them without means of support.

The administrator in this case filed a claim before the Industrial Board of Chicago. The Industrial Board entered an order against the University of Illinois, allowing the administrator the sum of $3,500, payable in installments of $8.75 per week. The Circuit Court approved this finding of the Industrial Board and University appealed to the Appellate Court. The Appellate Court found that the employes of the University of Illinois did not come under the Employers’ Liability Act, and the claim of the administrator was defeated. (See North v. C nil emit ¡[ of Illinois, 201 App. 4-19).

From the foregoing'facts we find as follows:

First — That at the time of his death James W. North was working for the University of Illinois; that the University of Illinois is a branch of the State Government and is performing governmental functions, and that the State of Illinois is not legally liable for any negligence of the authorities or employees of the State University, and that there is no legal liability in this case.

Second — We find that if James W. North at the time of his death came under the Employers’ Liability Act, and if the employees of the University of Illinois were protected thereby, that the State would be liable, under said Act in this case, for the death of James W. North and that $3,500 would be a proper sum to award the administrator in this case if the State elected to treat this matter the same as though the Employers’ Liability Act applied.

Third — We find that it would be just and proper in this case for the State to pay a sum not exceeding $3,500 to the administrator and claimant in - this ease.

Fourth — We find that this claim was technically barred by the Statute of Limitations. However, the administrator, ever since the death of James W. North, has been constantly and continually undertaking to recover from the State on account of the death aforesaid, first, through the Industrial Board and from that through the courts of the State, and afterwards, when the Appellate Court had decided he could not recover, the administrator took the matter up with the Legislature and has, at a number of sessions, sought relief by getting an appropriation, through the Legislature.

We do not think that the claimant in this case has slept on his rights, but has done everything he could in the nature of the case to bring his claim to the attention of the authorities of the State, and that it would be a hardship in this case to set up the Statute of Limitations as a defense and we think it would be unjust for the State to do so in this case.


text:
    Omar W. Branstitter, Administrator of the Estate of Helen Branstitter, Deceased v. State of Illinois.

      Opinion filed March 3, 1919.

    Govern-mental Puxctiox — Hospital for Insane at Jacksonville. The State in conducting the Hospital for the Insane at Jacksonville, exercises a governmental function and is not liable for injuries received by its employees while in the discharge of their duty.

      Same — negligence of employees of institution. The Insane Hospital at Jacksonville is a branch of the State Government exercising a governmental function, and even though the authorities of the institution were negligent, and such negligence caused the death of claimant’s intestate, still there would be no legal liability against the State.
    Edward J. Brundage, Attorney General, for State.
   Findings of Law and F’aet made by the Court of Claims at the special request of Governor Flank O. Lowden:

The evidence in this case shows that on the 8th day of January, in the year 1918, in the City of Jacksonville, Illinois, Helen Branstitter, now deceased, ivas an attendant and night watch at the hospital for the insane in the City of Jacksonville, Illinois; that she had charge1 of two wards in said asylurii; that she went on duty at ten o’clock at night and quit at six o’clock in the morning. She had been acting in such capacity for a period of more than one year at the time of her death. She had under her charge sixty insane patients, and was the sole person looking after them from ten o’clock p. m. until six o’clock a. m. It was her duty to look after the patients under her, to see what they were locked up at night and to attend to any of their wants during the time she was on duty.

On the 8tli day of Jammy, 1918, about 11:00 o’clock p. m. Helen Branstitter was called into the room of one of the inmates on some pretext, wdiere two of the female patients immediately seized her, strangled her to death and took the keys from her and escaped from the asylum. It appears from the evidence that these two insane female patients had for a number of days been conspiring to assault Miss Branstitter for the purpose of getting the kej's and escaping from the asylum, and in doing so they caused her death by strangulation.

Miss Branstitter left her surviving her father, mother and four brothers and sisters, two of whom were living at home, John, age thirteen, and Elizabeth, aged nineteen. During the time that the deceased worked at the asylum she lived at home. She was past twenty years of age and was earning $31.00. Her earnings went into the support of herself and her father and other members of the family. Her father is a man past fifty-six years of age, in fair health, a brick layer by trade, and when unable to procure employment at his trade works at common labor. He has a small home in Jacksonville, Illinois, but is dependent upon his earnings for the support of himself and his family. The exact amount that Helen Branstitter contributed to the support of her father and mother and minor brother does not appear from the evidence. The father, in his testimony, estimated the amount to be about $20.00 per month.

There was an inquest on the body of Helen Branstitter and the verdict of the Coroner’s jury advised that in the future there should be one night watch in each ward, apparently feeling that the deceased was compelled to look after too many patients, and. probably this was the cause of her death.

Unless it was negligence for the insane asylum authorities to put her in charge of two wards containing- about sixty patients, we find no negligence on the part of the authorities of the institution.

From the foregoing evidence we find as follows:

First — That during the time Helen Branstitter worked for the insane asylum aforesaid, she was an employe of the State, and if the employees of the State enjoyed the benefit of the Workmen’s Compensation Act, the State would be liable under said Act in probably the sum of $1,660.

Second — We find that the insane hospital at Jacksonville is a branch of the State Government exercising a governmental function, and that even though the authorities of the institution were negligent and such negligence caused the death of Helen Branstitter, still there would be no legal liability on the State.

We have no hesitation in saying that in our judgment it would be proper for the State in this case to make an appropriation of $2,500.


text:
    Frank J. Smith v. State of Illinois.

      Opinion filed March 3, 1919.

    Respondeat Superior — not applicable to the State. The State is not liable for injuries sustained by its employees while in the discharge of their duty.
    Workman’s Compensation Act — liability of State. The liability of the State under the Workman’s Compensation Act is limited to enterprises enumerated in Section Three (3) of the Act, in force at time of the accident.
    Statute of Limitations — When claim- is barred. Where the declaration on its face shows that the cause of action arose more than two years prior to the filing of the declaration the claim will be barred by the statute of limitations.
    Edward J. Brundage, Attorney General, for State.
   The claimant, Frank J. Smith, brings this suit against the State for damages for injuries claimed to have been sustained by him on August 1, 1914, while performing his duties as a day turnkey in the Pontiac Eeformatory. On that day, while he was on duty, one of the inmates of said institution escaped, and said claimant was directed by the assistant superintendent who was his superior officer, to go and search for said escaped inmate. Claimant started in a buggy for the Eeformatory with someone else who was driving the horse, and in order to pass from- the grounds of said Eeformatory out upon the public highway, it was necessary to open a gate at the entrance to said grounds. While claimant and his companion were riding in said buggy and approaching said gate and before said horse and buggy had stopped, claimant jumped from the buggy to the ground in order to run ahead and open said gate and injured his left ankle and foot. He was treated at the hospital and had an operation performed on his foot, but he did not recover from his injuries and on December 21, 1917, the foot was amputated above the anide, and he claims that he incurred a large indebtedness for medical services and also claims damages for the injuries.

In the opinion of the Court, there is no liability on the part of the State in this case. The Workman’s Compensation Act does not apply to this case, as the liability of the State under that Act is limited to the enterprises enumerated under section 3 of said Act, and it is not claimed that this case comes under the provisions of said section. The State is not liable in this kind of a case for the reason that ‘the doctrine of respondeat superior does not apply to the State’, Elmore v. Drainage Commissioners, 135 Ill., 269. Under the holdings of this Court in previous decisions, The State is not liable for the torts of its officers, agents and employees’, Henke v. State of Illinois, 2nd Court of Claims Reporte, page 11.

The State, through the Attorney General, pleaded the Statute of Limitations. The declaration inThis case shows that the injury complained of occurred on August 1, 1914, and under the Statutes in force at that time, this claim would be barred within two years from the time it accrued. The declaration was filed in this Court on April 29, 1918. The defense of the Statute of Limitations having been raised, it is the duty of this Court to enforce same.

For the reasons above stated, this claim is rejected.

At the request of the Governor, we make the following findings of law and fact in this case:

(1) That claimant was an employee of the State of Illinois, serving as turnkey in the Pontiac Reformatory and that while in the performance of his duties under the direction of the assistant superintendent who was his.superior officer, he injured his left ankle and foot, and as a direct and approximate result of said injury, it was necessary to amputate the foot above the ankle. Said Frank J. Smith is 37 years of age; is married, and has one child, 8 years old. Both his wife and child are dependent upon him for their support. He has no property of any kind. His salary at the Reformatory at the time he was injured was sixty dollars ($00.00) per month and he has continued in the employment of said Reformatory since said time except for the time he was in the hospital when his foot was amputated, and he is still in the employ of said Repormatory. The injuring of said ankle caused a diseased condition of the bone. Hecrosis set in and the bone became tubercular and it was necessary to amputate, the foot in order to save his life. The claimant now receives a salary of seventy dollars ($70.00) per month in said institution. "We further find that claimant expended two hundred and fifty ($250.00) for physicians’ services in endeavoring to be cured of his injuries and that he suffered considerable pain since said injury occurred in 1914.

(2) We find that the authorities of the Pontiac State Reformatory are acting in a governmental capacity as a branch of the State Government and that the State is not liable for injuries received by its employees as the Workman’s Compensation Act does not apply to this class of cases.

(3) We find that if the State of Illinois waived its souvereigntv and submitted to the same liability in this case that a private individual or corporation ivould bear, then and in that case the State would be liable to the claimant for his injury, if the Workmen’s Compensation Act applied.

(4) We find that if at the time the claimant was injured, employees of the State enjoyed the protection of the Workman’s Compensation Act the same as employees of private persons or corporations, and that the State of Illinois had elected to come under the provisions of said Act, then and in that case, the claimant herein would have been entitled to compensation under such Act.

(5) We believe that it would be only an Act of justice and right under the circumstances of this case for the State Legislature to appropriate not to exceed three thousand dollars ($3,000.00) as'relief and compensation for all injuries sustained by the claimant‘while working in the Pontiac Keformatory in the service of the State of Illinois.