text:
    Berto G. Holmes v. The State of Illinois.

      Opinion filed February 17, 1905.

    1. Trespassers—not precluded from recovering for negligence of another. A trespasser is not precluded from recovering for a loss occassioned by the negligence of another, unless his act, contributed to the injury.
    2. Canal Commissioners—Rights and duties as to bridges. While it has been decided in People v. Canal Trustees, 14 Ill., 402, that the Trustees were under no legal obligation to build bridges over the canal on highways opened after the construction of the canal, the reasoning of that court does not apply to a case where the canal was opened after the highway. The canal commissioners in the latter case, at least have the legal right, if it is not their legal duty to construct and maintain such bridges; and such has been the uniform and long continued construction of the law by the State itself, through its proper officers. The canal Trustees or Commissioners also having the legal right to enter into contract with the Commissioners of Highways for the construction and maintenance of bridges, after seventy years exclusive control of the bridge in question by the canal commissioners, it will be presumed in the absence of evidence to the contrary, that there was such a contract, and that such control was exercised in accordance with such contract.
    3. Same—When doctrine applies to a municipal corporation. A municipal corporation is never estopped to deny its right to make a contract, but the doctrine of estoppel is applied to it when acting in its private, as contra-distinguished from its governmental, capacity, whenever the act is within its chartered power.

      4. Court of Claims—legislative intent in creating. It was not the legislative intent, in creating the Court of Claims to create thereby, new liabilities against the State.
    5. Respondeat Superior—when doctrine applies to State. While no private action lies unless the right to bring it is expressly conferred where acts are done by the officers of towns and cities in their public capacity, in the discharge of duties imposed by the law for the public welfare, there is an implied or common law liability for the negligence of municipal officers in the performance of corporate acts which have relation to the management of the corporate or private concerns of the municipality, from which it derives special or immediate profit or advantage as a corporation.
    6. Illinois and Michigan Canal—operation of not a governmental function. The Illinois and Michigan canal is owned by the State as a business enterprise; its ownership, control and. operation, for hire and reward, is not a governmental function.
   This is a claim by Berto G. Holmes against the State of Illinois for damages for injuries to his person and property sustained as the result of the fall of a bridge over a “feeder” of the Illinois and Michigan canal. Claim is made for five thousand ($5,000.00) dollars, but this is reduced to seventeen hundred and forty-four dollars ($1,744.00) dollars by the bill of particulars filed by claimant. The case is submitted on the evidence introduced by claimant, with the stipulation that in the decision of the case, the evidence introduced in the case of Chas. A. Peterson, Admr. v. The State, growing out of the same disaster, shall also be considered. It appears from the evidence that in 1837 and 1838 the State, through its proper officers, constructed, as appurtenant to the Illinois and Michigan canal, a “feeder,” extending from Fox river to the said canal, through a portion of La Salle county, near the city of Ottawa; that said “feeder” intersected a public highway, in such county, known as “Dayton Road,” previously established and used. That the State, upon said completion of such “feeder,” constructed thereover, on said highway, a wooden bridge known as a “pony truss” bridge, consisting of one wooden arch upon either side, resting upon plates or abutments at either end, and thus supporting the weight of the bridge; these arches each being composed of three pieces of timber, one long piece acting as a keystone and the other two proceeding diagonally from the ends of the keystone down to and upon the plates and abutments at either end. The bridge- in question was sixty-nine and eight-tenths feet long and seventeen and one-half feet wide between the chords. And that the State has ever since maintained said bridge at its own expense, and had exclusive control thereover. It appears that neither the highway commissioners, nor county, have ever had anything whatever to do with the construction, maintenance, repair or control of such bridge; but it does not appear from the record, whether there was any contract or arrangement of any kind with reference thereto between the State, through its trustees or commissioners, and the highway commissioners, or the county.

On September 11, 1902, claimant was slowly crossing this bridge, with an ordinary threshing machine outfit, consisting of traction engine, water tank and thresher; that when the engine had reached about the middle of the bridge, going south, the bridge gave way and precipitated claimant, his employe, Andrew T. Peterson and engine and threshing outfit into the canal, killing Peterson and injuring claimant and damaging his said property. It appears that the cause of the bridges’ giving way, was the very rotten condition of the south east support of the bridge, a wooden beam or support known as a “batter-post” resting on the pier; a condition not observable from the highway, but which could easily have been ascertained by the most casual inspection of the bridge. It is shown that the bridge was of a type and character, that had it been in proper state of preservation, would have supported the outfit. In fact, claimant had himself crossed it with his outfit a few weeks before. It also appears that the claimant had not observed the statute, in laying down planks on the bridge for the engine to pass over; but it further appears from the uncontradicted expert evidence in the record, that such failure to plank, in no wise contributed to the fall of the bridge; in other words, that the use of such planks would not have distributed the weight so as to relieve the strain on the rotten support, or prevent its giving way. As stated above, claimant’s employe, Peterson, was killed; claimant received wounds and scalds that kept him from his work and under a doctor’s care about two months and his engine was damaged to the extent of about three hundred ($300.00) dollars, and the balance'of the outfit, estimated at the value of about seven hundred ($700.00) dollars, substantially ruined; claimant’s whole damage being estimated at seventeen hundred and forty-four ($1,744.00) dollars.

It is manifest from the record in this case, indeed is conceded by the State, that this claim is meritorious and presented in good faith, and should be allowed, if no legal defense be shown. Three legal defenses, however, are urged by the State, against the claim.

1st. That claimant was not himself in the exercise of due care.

2d. That the State was under no legal obligation to maintain the bridge in question.

3d. That the State is not liable for the negligence of its officers, the Canal Commissioners.

The contention that claimant was not himself in the exercise of due care, rests almost, if not wholly, on the fact that he did not lay plank for his engine to cross on, in compliance with Section 268, Chap. 121, Rev. Stat., 1903. This statute is a penal statute. Whether the reason underlying it was to distribute the load on the bridge or to prevent the wear and tear of the floor planking by the ordinary spurs or toes on the tire of the wheels of ordinary traction engines, is questionable; we are inclined to the latter view, as the more reasonable, as the effect of the use of such plank could have no appreciable influence in the distribution of the load on the support of the bridge; however, in our judgment, it is not necessary in the decision of this case to determine the reason of the law. As stated, it is a penal statute. Its violation does not, in our judgment, make the violator, a trespasser; and even if it did, his trespass, on the well recognized authorities of this State, would not preclude his recovery for loss occasioned by the negligence of another, unless his act, contributed to the injury. This the evidence clearly establishes it did not do. Claimant was slowly crossing the bridge with his outfit. He had crossed the bridge with it before, and judging from the style and apparent character of the bridge, was, we think, entirely warranted in thinking it could be safely so passed over. So that we are of the opinion, the claimant, on the whole, showed no such lack of due care as to preclude him from recovery, if otherwise entitled to recover.

The second defense urged, is that the State was under no legal obligation to either construct the bridge, or keep the same in repair. It is undoubtedly true as contended by the State, that the law confers on highway commissioners, the general duties of constructing and repairing the bridges on public highways; and that it is competent for the State to assign such duties to its subordinate municipalities. And the Supreme Court in People, etc. v. Canal Trustees, 14 Ill., 402, has held that the canal authorities are under no legal obligation to construct bridges over the canal, on highways intersecting such canal, opened after the construction of the canal; in this instance the road was laid out first and the reasoning of the court in the above case does not apply; indeed, the stress laid upon the fact in that case, that the canal was constructed first, would indicate an inclination to a contrary holding where the road was opened first, and furthermore, there seems in that case to be a recognition by the court, of the power and authority of the Canal Commissioners to construct and have bridges over the canal, if they see fit so to do. Section 8 of the Canal Act. (Chap. 9, Rev. Stat.) gives the Canal Commissioners control over the canal, its “feeders” and appurtenances; and Sections 23, 24 and 27 ibid, power to control the construction of bridges thereover and to regulate the use of the same, and that the fines incurred by violation of its regulations shall go to them. These are all powers and rights generally conferred by statute, on the commissioners of highways, and seem to us to evince the legislative intent to confer the right and power, if not the duty, to construct and repair bridges over the canal, on the Canal Commissioners. That, it clearly appears, has been the construction of the law, by the State itself, through its proper officers. The State nearly seventy years ago constructed the bridge in question, renewed it and repaired it from time to time, and exercised exclusive jurisdiction over it. If the State, through its Commissioners, had the right and power, as we are inclined to think it had, to construct the bridge, or to at least enter into arrangements with the county or highway commissioners for its construction and maintenance, after such lapse of time, and in the absence of evidence on the question, it would on well recognized principles, be presumed that the officers performed their duty and that such an arrangement was made.

Suppose under the facts of this case this question arose on the prosecution of a person for malicious mischief, in defacing or maliciously injuring the bridge in question, in the indictment for which one of the necessary allegations would be as to the ownership of the bridge; and the State or Canal Commissioners should be the alleged owners, could conviction be defeated on the ground that the State or Commissioners were not in law the owners? We think clearly not. Furthermore, we think that while the doctrine of estoppel ordinarily does not apply against the State, yet it does in this case. This canal, its ownership and control, is not a governmental function, but a purely business enterprise. The State clearly had the power to construct and maintain the bridge in question, even though the Commissioners did not have. Having that power, and through its proper officers, its Canal Trustees and Commissioners, exercising it, through a long period of time, it should be, and is, we think, legally estopped from denying its rightful exercise.

A municipal corporation (county) is never estopped to deny its right to make a contract, but the doctrine of estoppel is applied to it when acting in its private, as contra-distinguished from its governmental, capacity, whenever the act is within its chartered power; Barnard & Co. v. County of Sangamon, 190 Ill., 116; City of Chicago v. Williams, 182 Ill., 135; City of Chicago v. Sexton, 115 Ill., 230; County of Cook v. Harms, 108 Ill., 151.

If the question upon whom the legal duty rests to construct and repair bridges over the canal, arose between the Canal Commissioners and highway commissioners, a very different question would be presented than is now presented to this court, between the State and one of its citizens. It would certainly be a very harsh doctrine to exempt the State from liability in this case on the ground of want of authority on the part of the Canal Commissioners to construct and maintain the bridge in question; after it has at least tolerated such acts of its officers for two generations; and we cannot so hold.

The last defense urged is in our opinion, the most serious, i. e., that the State is not liable for the negligence of its officers. This as a general proposition is undoubtedly true. The act creating this court, certainly confers very broad jurisdiction on the court and seems to recognize the liability of the State in actions arising out of the acts and omissions of its officers, including “Canal Commissioners,” sounding in tort, and directs us to determine claims against the State according to the principles of equity and justice. The Act of the Federal Government, establishing its Court of Claims, expressly exempts such claims from the jurisdiction of that court. But notwithstanding the omission of such exemption from our statutes, and the broad powers conferred," we are inclined to the view that it was not the legislative intent, to create thereby, new liabilities against the State. But in this case, we doubt the applicability of the doctrine exempting the State from liability, for the negligence of its officers. The doctrine finds its justification in considerations of public policy. The same considerations of public policy that the courts of this State have uniformly looked to in exempting municipalities from liability for the acts of omission and commission of their police officers, members of fire departments, etc. But the courts of this State have distinguished between such cases where they hold the doctrine of no liability; and another line of cases where the municipalities are engaged in enterprises of a business nature, for profit, in contra-distinction to purely governmental functions, and they are not exempted. Says Mr. Justice Magruder in City of Chicago v. Williams, 182 Ill., 135: ‘‘There is an implied or common law liability for the negligence of municipal officers in the performance of corporate acts, which have relation to the management of the corporate or private concerns of the municipality, from which it derives special or immediate profit or advantage as a corporation. But where acts are done by the officers of towns and cities in their public capacity in the discharge of duties imposed by the law for the public welfare, no private action lies unless the right to bring it is expressly conferred. This distinction is well recognized by our Supreme Court as applied to all classes of municipalities.”

We are therefore, of the opinion that claimant is entitled to an award of damages. In view of the fact that the damages are unliquidated, and the exact amount thereof are impossible of ascertainment, from the evidence, we do not feel bound by the estimates thereof made by claimant, or his counsel, but feel warranted in exercising our own best judgment as to the amount to be fixed; and we fix his damages at $1,500.00. We accordingly award the claimant, Berto G. Holmes, the sum of fifteen hundred ($1,500.00) dollars as damages to his person and property, growing out of the matter in the above entitled suit complained of.


source: Caselaw Access Project

license: Public Domain

text:
    Eugene B. Phillips v. The State of Illinois.

      Opinion filed February 17, 1905.

    1. Waters—degree of care required by collector of artificially collected waters. The weight of authority seems to sustain the proposition that the collector of artificially collected waters, as in the case of the owners of wild and dangerous animals, must retain them in his control at his peril, and is liable for damages done by them if they escape, whether negligent or not, except it happen by the Act of God.
    2. Respondeat Superior—when doctrine does not apply. The doctrine that the State is not liable for the negligence of its officers, does not apply to the officers in charge of the Illinois and Michigan canal.
   This is a claim made by Eugene B. Phillips against the State for damages growing out of the flooding of his lands by waters from the Illinois and Michigan canal. The case is submitted on the evidence introduced by the claimant only. Claimant in 1902 was farming a rented farm in La Salle county, adjacent to said canal. In July of that year the banks of the canal broke and permitted the waters of the canal to escape upon claimant’s said lands and destroy or injure about forty acres of his crops. It is not absolutely certain from the evidence just what caused the break in the bank, but the evidence tends to prove that the break was due to holes made in the bank by musk-rats; and that claimant had given timely notice to the canal authorities of such burrowings. There is great contrariety of judicial opinion as to the degree of care required by the collector of artificially collected waters, in reservoirs and canals, to retain them in control. One class of cases holding to the doctrine that the collector of such waters, as in the case of the owners of wild and dangerous animals, must retain them in his control at his peril, and is liable for damages done by them if they escape, whether negligent or not, except it happen by the Act of God, etc. The other sustains the doctrine that before such liability attaches, such collector of waters must be chargeable with negligence. The courts of our State seem inclined to the former position; Kankakee Water Co. v. Reeves, 45 Ill. App., 285, and we incline to the same view. We deem it unnecessary, however, in view of the evidence in this case, to decide between the two lines of authority; deeming the uncontradicted evidence sufficient to sustain a judgment, even on the latter theory; if not defeated on other grounds.

Practically the only defense urged by the State’s counsel is the proposition that the State is not liable for the negligence of its officers. We fail to concur in the views of State’s counsel on this proposition as applied to the officers in charge of the Illinois and Michigan canal and have decided adversely to that contention in the case of Holmes v. The State: supra, the opinion in which case we file on this date, and which fully expresses our views on the question. The principles announced in that case, being decisive of this, we feel constrained to make an award in claimant’s favor. The claim is made for damages in the amount of $600; and claimant and his witnesses testifying in a general way, estimate the damage done, at from $500 to $600; but this estimate is not only very general in its nature but is also on the basis of a full harvested crop and at the highest market values. Estimating the damages in detail from the somewhat insufficient data furnished, we think $10.00 per acre or $400.00 for the total acreage destroyed and damaged, would fairly cover claimant’s damages. We, therefore, accordingly award claimant, Eugene B. Phillips, the sum of four hundred dollars ($400.00) as damages for his loss, growing out of the matter in the above entitled suit complained of.


text:
    Charles A. Peterson v. The State of Illinois.

      Opinion filed February 17, 1905.

    Damages: Caused by falling bridge over feeder of Illinois and Michigan Canal. Claimant was injured by the falling of a bridge over a “feeder” of the Illinois and Michigan canal. The court reviews the evidence and holds the claimant entitled to $2,500. Holmes v. the State followed.
   This is a claim by Charles A. Peterson, administrator of the estate of Andrew T. Peterson, for damages to the said estate, by reason of the death of deceased, caused by the fall of a bridge over a “feeder” of the Illinois and Michigan canal, due to the alleged negligence of the Canal Commissioners in permitting the same to be and become out of repair.

Deceased was an employe of Berto G. Holmes and was assisting him in conveying across the bridge in question, his threshing outfit, when the bridge fell and he was instantly killed thereby; and in this claim the same state of facts and legal principles are involved as in the claim of Berto G. Holmes v. The State. And our award and opinion in that case on this date filed, is decisive of the merits of this, except on the question of the amount of damages.

On the latter question the evidence in the record, is not in a very satisfactory condition to enable us to determine the exact amount of damages we ought to award.

At the time of the death of deceased, the legal limit of recovery in case of death, was five thousand ($5,000.00) dollars; and was limited to the actual pecuniary loss to the next of kin. We consider that we are bound by such rule. From the very nature of such damages, they are ordinarily incapable of exact ascertainment, and our courts have not exacted much certainty in evidentiary data for their ascertainment. But yet in this case, the evidence certainly falls short of what might have been produced by claimant bearing on that question. The father of deceased, Ole Peterson, according to the evidence, is the only next of kin, in any measure dependent on deceased for support. Deceased at the time of his death was twenty-one years, five months and eleven days old; he left him surviving two brothers, Charles A. and Ever Peterson, a sister, Tillie, since married and now named Mrs. Phillip Brooks, and his said father, Ole Peterson. Deceased had always lived with his father on a farm, and at the time of his death he and his sister and father were living together. The father was seventy-four years old and was demented, to what extent is not shown; but was said not to be able to work. Whether deceased or his father rented the farm upon which they lived is also uncertain from the evidence. Deceased worked on the farm either for himself or his father, and together with his brother Charles A., employed their sister to keep house for their father; and deceased helped support, the old gentleman; but to what extent is not satisfactorily shown.

The foregoing is the substance of the evidence we have to guide us in fixing the amount of damages. We suppose we are entitled to the same latitude in arriving at the amount of damages as a jury would be, and in view of the meagre evidence bearing on the question we cannot hope to escape the charge of guessing at the amount so often made in such cases against juries. But keeping in view the compensatory feature of the law and the age of the father, the next of kin deprived of means of support, we fix the damages at $2,500.00.

We therefore accordingly award claimant, Charles A. as administrator of the estate of Andrew T. Peterson, deceased, the sum of two thousand five hundred ($2,500.00) dollars, as damages for the death of deceased, growing out of the matter in the above entitled suit complained of.


text:
    Louis H. Krueger v. The State of Illinois.

      Opinion filed April 1, 1905.

    Statute of Limitations—Claim for a definite sum as compensation for military services not barred by. Claimant served in the State militia and earned $37 from the State which he has not received because of his absence in the Philippines during the life of the appropriation made to pay the claim. Held that such claim is not an unliquidated claim barred by the statute of limitations, because not presented within two years from the time the claim arose.
   On the 26th day of April, 1898, the claimant, Louis H. Krueger, as a member of Troop “M,” First Illinois Volunteer Cavalry was called into service by the State, and on the 21st day of May of said year was mustered into the United States service and immediately thereafter as a part of the regular army, was sent to the Philippine Islands where he was mustered out of service, and returned to this country. Having served 25 days in said Troop “M,” he was entitled .to the sum of fifty ($50.00) dollars from the State for said services, as is provided by the Military Code of this State, article 8, paragraph 35, Starr & Curtis, Statutes. Prior to his departure to the Philippine Islands he received from the State the sum of thirteen ($13.00) dollars, and this claim for thirty-seven ($37.00) dollars is for the balance due him for said services.

The pay roll of said Troop “M,” filed by the Adjutant General with the State Auditor, shows that the claimant actually served the number of days claimed, and that there is thirty-seven ($37.00) dollars yet due him from the State. An appropriation to pay this amount together with similar claims was made by the General Assembly in 1899. Which appropriation the claimant was unable to avail himself of because of his said absence. That the claimant rendered the services or that said amount is due him is not denied by the State. It is contended, however, that this claim is barred by the statute of limitations. The statute so relied upon provides that all persons having unliquidated claims against the State of Illinois shall present the same within two years from the time such claims may have arisen. When the claimant entered into the services of the State the above section of the military code, which was in force, provided the amount of compensation he should receive for his services and his enlistment became an acceptance of the provisions of said code by which the sum he was to receive became fixed and certain and, therefore his claim does not come within the statute of limitations. We accordingly award the claimant Louis H. Krueger the sum of thirty-seven ($37.00) dollars the amount of his claim in this proceeding.


text:
    Jennie A. Ratto v. The State of Illinois.

      Opinion filed April 10, 1905.

    Statute of Limitations—running not stopped by introduction of bill relating to claim in Legislature. The running of the statute of limitations against a claim for damages against the State is not stopped by the introduction of a bill for relief in either branch of the Legislature.
   The facts on which the claimant bases her right of recovery are set forth in the petition substantially as follows: That the claimant is the widow of Gasper R. Ratto, who held a position as “Deputy Game and Fish Warden for the State,” from the year 1897 until his death February 11, 1902. For the further statement of material facts, quotation is made from the petition as follows:

“Petitioner further says that on or about the 15th day of December, A. D. 1901, said Gasper R. Ratto while engaged in his duties as such Deputy Game Warden had left his residence before five A. M., and had gone to the American Express office at the Illinois Central Railroad Depot- in Chicago, to inspect incoming packages; that about 6:30 A. M., having opened a barrel or box containing game, to discover whether it contained anything which had been shipped contrary to the provisions of the law, as he withdrew his hand, he received a scratch on the back of same and the wound became infected from some poisonous germ connected with the game or the barrel and resulted in blood poisoning, and although medical aid was promptly sought, and everything done that could be done to prevent the spread of the infection, these efforts were not successful and said Ratto died February 11, 1902.”

It is further set forth that “a bill for relief was introduced into the House of Representatives at the session of 1903, being House Bill No. 399, which was referred to the Committee on Claims; that this committee appointed a special committee to hear evidence in the case and, under its direction, evidence was taken and laid before the committee; that on consideration of said evidence the committee recommended a favorable report, but that the adjournment of the Legislature prevented any further proceedings.”

Petitioner further states that she has attached hereto a copy of the depositions aforesaid and prays the court that same may be received by the- court as the evidence in this case, required to be taken by deposition.”

It is further stated in the petition that the said Gasper R. Ratto left a widow, the claimant herein, and nine children; that “six of said children are living with the petitioner, the three older of whom have been compelled to secure employment to aid in their own support and that of the family, and the three younger of said children, varying from thirteen to seventeen years of age are still in school:” It is further stated that “said Gas-per R. Ratto at the time of his death left no property, and petitioner has no property nor any income except that derived from what her said children earn.”

In consideration of this statement of facts the sum of $3,000 is asked as proper relief for the claimant and her children.

In behalf of the State, pleas were filed by the Attorney General denying liability of the State, because the facts alleged in claimant’s petition are not sufficient in law to entitle claimant to recover thereunder, and further that said claim was not presented within two years from the time such claim may have arisen, and is therefore barred by the statute of limitations.

Under the law creating this court, there is a provision that it “shall file with the records of each claim determined, a brief written statement of the reason of the determination.”

The foregoing statement of the case should be a sufficient compliance with the above requirement—a compíete “statement of the reason of the determination” which constrains the court to reject this claim; however much it may appeal to personal sympathy for the unfortunate, it is unwarranted under the laws by which this court must be governed in allowing or rejecting claims— and in our view of the laws applicable we are constrained to reject the claim.

Careful consideration has been given to the able arguments of the plaintiff’s attorney; but, however ingenious or ingenuous they may be, we cannot concur with his interpretation of the law creating this court—nor as to the purpose for which it was created, nor as to the scope of its authority.

Inasmuch, however, as counsel’s interpretation has not heretofore been presented in argument before the court, so far as recorded or recalled, it would seem desirable to present the general tenor of the argument and counsel’s views of the law applicable. They are best indicated by quotations from the argument filed:

“Petitioner further represents that it has heretofore been the praiseworthy custom of the State of Illinois to come to the relief of families the heads of which have lost their lives in the service of the State; that while such action has usually been taken where the deceased was in the military service of the State, there should be no distinction in principle from such service and the service which said Ratio was rendering; that said Ratio was exposed not only to the dangers arising from active opposition by men provided with fire-arms with whose unlawful business or pleasure he, in the exercise of his duties was interfering, but was also in danger of impairment of health and loss of life from the effects of swamps, malaria, and accidents on the water, and as the sequel proved, by the far more insidious and fatal effects of poisonous germs taken into his system while quietly and faithfully fulfilling the duties of his office; that such service, though not surrounded by the traditions and glamour of military service, is nevertheless a species of military service, requiring the constant use and possession of arms and the meeting of lawless individuals or parties likewise armed, engaged in the violation of positive law.”

P. 3. Claimant’s petition.

“It needs no argument to show that the Court was not organized to take cognizance of simply legal or equitable claims, but includes all claims whatsoever. Those based upon a moral obligation are fully within the scope of the court’s investigation and decision.”

“It is precisely because the State cannot be made a defendant in any court of the State—in other words, because there can be no legal claim against it that the Court of Claims was established.”

P. 2. Brief and Argument for Claimant.

“With all due respect to the Attorney General, it is quite obvious that there is no allegation in the petition of negligence on the part of the State. There could be none. Nor does the objection that the statute of limitations has run apply to a case of this kind. Statutes of limitations cut off the right of action after the expiration of a given period. Where no right of action has ever existed it cannot be cut off by any statute. Even here, however, the record shows that the death of Batto occurred February 11, 1902, and that the bill for relief was introduced in the House of Bepresentatives February 5,1903, but a little over one year thereafter. So that even if it were necessary that a claim be made within two years, it was done in this case.”

P. 3. Brief and Argument for Claimant.

As to this reasoning of the claimant’s attorney, as above briefly indicated, it is felt that no extended comment is necessary.

As to the contention above, that “there should be no distinction in principle from such service (militia) and the service which Batto was rendering: there was no distinction, until the Legislature saw fit to establish one by enacting Sec. 4, Article IX, of the Military Code in force July 1, 1901. This court has not yet nor is it at present disposed to abolish the distinction that the Legislature has seen fit to create. While the Legislature has at all times shown a liberal disposition towards those killed or wounded in the military service of the State and has, before the enactment of 1901 made frequent appropriations therefor; nevertheless this court had not assumed the power or privilege of disbursing the State’s funds for such purposes, however much personal sympathy might have so inclined the members of the court.

It is fair to state, and attention is called to the fact that in the Hatfield case against the State, on a rehearing thereof an award is made for injury received in the military service, on the ground that the Legislature had frequently made appropriations in similar cases: but even in that case (of Hatfield) the opinion throughout, up to the making of the award, was an argument that such awards by the Court of Claims (or the Commissioners of Claims) were unauthorized—though the Legislature, being a law unto itself, could do as it saw fit. Since the Hatfield case, the reasoning in the opinion filed on rehearing has been followed; the award of the claim has not been accepted as a precedent: though since the enactment of Sec. 4, Article IX of the Military Code, in force July 1, 1901, the question is more one of contention, as in this case, than as to what is the present law.

As to the argument that the statute of limitations does not “apply to a case of this kind: that statutes of limitations cut off the right o f action after the expiration of a given period. Where no right of action has ever existed it cannot be cut off by any statute.” This argument does not appeal to the court, except for its novelty.

As to the introduction of a bill, relating to this claim, in the House of Representatives, and the argument that the running of the statute is thereby "stopped; without disrespect to the General Assembly, which was the creator of the Court of Claims, and likewise, in 1847, of the statute of limitations, yet we hold that its own creature, the statute of limitations would continue to operate just as effectively after the introduction of a bill in either branch of the General Assembly as if the bill had been introduced, in the shape of a resolution in a political or any other convention.

In spite of the eloquence and ingenuity of the claimant’s attorney, the court can not agree with him in his reasoning and the claim is rejected as not warranted in law, and for a further reason, if any were necessary, it is barred by the statute of limitations.


text:
    Harry D. Palmer v. The State of Illinois.

      Opinion filed April 10, 1905.

    1. Statute of Limitations—act of 1847 not repealed. Neither the act creating the Commission nor the later act creating the Court of Claims specificially repeals the limitation act of 1847; nor is it repealed by implication.
    2. Same—intention and purpose of the act of 1847. The act of 1847 was passed solely with reference to claims against the State, and with the special purpose of fixing a two years limitation within which then existing claims should be proven and filed; and a like limit as to presenting unliquidated claims against the State that might thereafter arise. The limitation was the essential intention and purpose of the act. The different officers named before which the various kinds of claims should be proven up and filed, were incident to the main purpose of the act.
    3. Statutes—rule of construction as to repeal by implication. It is a rule of construction that a law passed with reference to a specific thing is not affected by the passage of a general law unless it is definitely shown by the language of the general law that it was intended to repeal or modify the special act.
   No testimony having been taken in this case either for the claimant or in behalf of the State, there is no dispute as to the circumstances out of which this claim arose. As stated in the petition which is verified by the affidavit of the claimant and is in no way contradicted or disputed, said claimant was on the 29th day of September; 1901, an enlisted man in “Troop A” First Cavalry, of the “Illinois National Guard;” that said First Cavalry was a regular integral part of the military force of the State of Illinois, called into action (service?) by the State for the preservation of the public peace; that said organization was prepared for said service; that on the said 29th day of September he was called into action (?) at Chicago, Illinois, by his superior officers and while at drill in the performance of his duty he was kicked in the right side by his horse.

The claimant was then taken to a hospital in Chicago where it was found necessary to perform several serious operations and “was detained in hospital for many months and for m.any months after leaving hospital was slowly regaining an imperfect healthhis bill for surgical service was the sum of $155.00; the hospital bill was $217.25; loss of wages during the time spent in hospital and in convalescing $600.00, making a total of $972.25 as the amount.

In behalf of the State, the Attorney General in the pleas filed denies liability of the State: that the facts, as disclosed are not sufficient to entitle claimant to recover; and further, the defense of the statute of limitations is interposed.

As tO' the first defense: This claim was founded on Section 4, Article IX of the “Military Code” in force July 1, 1901, and in the absence of other defense the court would consider the claim well founded. The case of Balsley v. The State, cited in the brief filed for the defense, is not applicable. In that case, though the opinion of this court was filed March 11, 1903, the injury, for which claimant sought recovery, was inflicted July 29, 1900, before the passage of the act above referred to. In the Balsley case this court held that the above enactment was not retroactive and that as the doctrine of respondent superior does not apply against the State, therefore Balsley had no right of recovery.

The circumstances are different in this case, the injury, for which an award is sought, having occurred September 29, 1901, several months after said Section 4, Article IX went into effect.

We do not enter into a discussion as to the proper amount of the award, if any award were to be made; the petition fails to show what wages or salary or occupation, if any, the claimant had at the time of the action; nor is the time he was incapacitated definitely stated except that he was detained in the hospital “many months” and for “many months” after leaving the hospital he was slowly regaining an impaired health.

This vagueness is not material in this particular case, inasmuch as the court feels constrained to hold that the claim is barred by the statute of limitations.

It is contended by claimant’s attorney that the Act of March 1, 1847 (statute of limitations) was, in effect, repealed by the Act creating the Commission of Claims; (in force July 1, 1877) inasmuch as said Act does not specifically “impose any such limitation on its powers.”

Heither the Act creating the Commission nor the latter Act creating the Court of Claims, specifically repeals the limitation act of 1847: Nor are we satisfied that it is repealed by implication.

The Act of 1847 was passed solely with reference to claims against the State, and with the special purpose of fixing a two years limitation within which then existing claims should be proven and filed; and a like limit as to presenting unliquidated claims against the State that might thereafter arise. The limitation was the essential intention and purpose of the Act: The different officers named before which the various kinds of claims should be proven up and filed—were incident to the main purpose of the Act.

As argued by the Attorney General in the case of Partello v. The State (ante p. 309), “It is a rule of construction that a law passed with reference to a specific thing is not affected by the passage of a general law unless it is definitely shown by the language of the general law that it was intended to repeal or modify the Special Act.”

In the case of Fairbanks v. The State (ante p. 1), it was held, after thorough and able argument on this point, that the limitation act had not been repealed. So far as we have been able to discover, this ruling has been uniformly followed by the court. If it is an unjust law it should be repealed by the Legislature. This court is not disposed to ignore laws which are in force nor, in effect, to attempt the repeal of laws, by rendering decisions in conflict with them.

For this reason the claim is rejected.


text:
    Wm. H. Reeves, et al v. The State of Illinois.

      Opinion filed April 20, 1905.

    1. Words and Phrases—construction of term, “2% of cost,” in computing architects’ fees. The term 2% of the cost of the buildings when used to designate the amount of an architect’s commission for superintending the erection of buildings, signifies 2% of the contract price and not 2% .of the actual cost price.
    2: Fees and Salaries—provision of Constitution as to payment of claims under agreements made without express authority of law. Section 19, of Article IV, Constitution of 1870, provides that “The General Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made, nor authorize the payment of any claim, or part thereof hereafter created against the State under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall he null and void.”

    3. Constitutional Law—money not to he diverted from appropriation hy resolution. Article IV, Section 17, of the Constitution provides that, no money shall be diverted from any appropriation made for any purpose, or taken from any fund whatever, either by joint or separate resolution.
    4. Statute oe Limitations—act of 18Jf! in force. The statute of limitations of 1847 was not repealed by implication, by the act of 1877 creating a commission of claims.
   This is a claim for services rendered as architects by Wm. H. Reeves and J. M. Baillie, doing business under the firm name of Beeves & Baillie, under a contract entered into by said firm with the Commissioners of the Asylum for the Incurable Insane at Bartonville—which contract reads as follows:

“This agreement made and entered into this 18th day of February, A. D. eighteen hundred and ninety-eight, by and between Beeves & Baillie, Architects, parties of the first part, hereinafter known as the architects, and the Commissioners of the Asylum for the Incurable Insane at Bartonville, Illinois, owners, parties of the second part, hereinafter known as owners.

Witnesseth: That the said architects for and in consideration of the payments to be made to them by the said owners as hereinafter provided, do hereby covenant and agree to furnish for all building improvements upon said Asylum site, full architectural services, including plans, details, specifications and architectural supervision of construction, including a local superintendent on grounds during the construction of building. The said superintendent shall be satisfactory to the Commissioners. The said work to be done in a skillful and workmanlike manner. Said owners, for and in consideration of said architects strictly performing the covenants and agreements above specified, by and at the time mentioned do hereby agree to pay to the said architects a sum as stated below: three (3) per cent when any plans, details and specifications are completed, and the balance to be paid at the rate of two (2) per cent on contractor’s estimate during the construction of the buildings for superintendence.

When more than one (1) building is built from the same plan, three (3) per cent of the cost of the first building is to be paid for plans, and specifications and two (2) per cent of the cost of all the buildings to be paid for superintendence.

It is agreed that in case the work is abandoned before completion, the architects are to be reimbursed for their labor as follows:

For preliminary studies one (1) per cent of estimated cost of building improvements.

For preliminary studies, general drawings and specifications three (3) per cent of estimated cost of buildings.

For preliminary studies, general drawings, specifications and details.............

For partial superintendence............per cent of the value 'of so much of the building as is completed at the time of such abandonment, in addition to the amount to be paid for preliminary studies, general drawings, specifications and details as above specified.

Additional reimbursements, as agreed upon, to be made to the architect by the owner for the following additional service, to-wit:

For surveys of land and measurements incident thereto.

For alterations and additions in the contracts or plans caused by deviations from the original scheme after the working drawings have been completed.

For necessary traveling expenses and for time spent in visiting for professional consultation*............

It is also agreed, that until a definite estimate is furnished, the architects’ charges shall be based upon the proposed cost of the work, and the payments received by the architects from the owners during such time, shall be considered as installments of the entire fee, which is based upon the actual cost. The actual or total cost of the building when completed shall include all the fixtures necessary to render it fit for occupation, and the architects shall be entitled to extra compensation for furniture or other articles designed or purchased by them.

It is further agreed, that if any material or work used in the construction of the building be already upon the ground, or comes into the possession of the owners without expense to them, the value of said material or work is to be added to the sum actually expended upon the building before the architects’ commission is completed.

It is further agreed that all drawings, specifications, etc., as instruments of service, are the property of the architects and are to be returned to them after having answered the purpose for which they were made, or upon demand of the architects.

The work provided for in this contract shall be completed within three years from the date thereof.

Should any dispute arise respecting the provisions of this contract or any question arising thereunder or the value of the work done in case of abandonment, the same shall be submitted to three arbitrators, each of the disputing parties choosing one, and these two a third, and the decision of such arbitrators, shall be final and binding on all parties. And in case of such dispute if, after written notice from one party to another of the appointment of an arbitrator, the party so notified fails to appoint a second arbitrator within ten (10) days from the receipt of such notice, the arbitrator appointed by the party giving such notice shall proceed alone and decide the matter in dispute and his decision shall be final and binding on all parties, the same as if the matter had been decided by three arbitrators appointed as above provided.

The entire expense of such arbitration shall be borne by the party declared to be in the wrong.

Architects—Parties of the First part:
Beeves & Baillie, [seal.]
Owners—Parties of the Second part:
F. W. Henke, [seal.]
H. P. Reed, [seal.]
J. W. Wilson, [seal.]
Agreement between Beeves & Baillie, Architects, of the first part, and
Commissioners of the Asylum for the Incurable Insane, Bartonville, Illinois, of the second part.
For architectural services on building improvements, located at asylum site, Bartonville, Illinois.
Peoria, February 18,1898.”

Accompanying the petition filed in this case is a statement of account, (marked “Exhibit B”) verified by the affidavit of J. H. Baillie, which is identical with the copy of said account contained in the brief and argument of claimants’ attorneys, except that said latter statement credits the Commissioners with $805.70, not credited in the original statement, for payments made to the claimants since the filing of their petition: which latter statements of account is as follows:

Item No. 1.
To superintending the general construction of four buildings, known as the Employes, Domestic and Supply building and Boiler house, two per cent of Gleason &
Sons contract, $54,678.50 ..... $3,093.57
Bee. on account............. 2,374.12
Bal....................... $719.45
Item No. 2.
To superintending the general construction of four buildings known as the Employes, Domestic Supply building and Boiler house, two per cent of the extra cost incurred in finishing Gleason & Sons forfeited contract ................... $61,215.42 less deduction
3,989.75
57,225.67
$1,144.51
Item No. 3.
To superintend the plumbing of four buildings, known as Employes, Domestic and Supply building and Boiler house, two per cent of John O’Neill & Sons contract $12,644 ............... $252.88
Deceived on account......... 70.08
Bal...................... $182.80
Item No. 4.
To plans and specifications of the following buildings at three per cent of the cost based on the lowest bid
submitted for the building (exclusive of heating and plumbing) :
Cottage A (erected). $14,270 $428.10
Cottage B 15,795 473.85
Cottage C 38,800 1,164.00
Cottage D 19,081 572.43
Dining hall (erected) 11,152 334.56
Bath house 10,317 300.51
Hospital 70,720 2,121.60
Milk house 4,308 129.24
Horse and cow barn 18,081 542.43
Administration bldg 40,000 1,200.00
Physicians res 12,000 360.00
$7,635.72
Item No. 5.
Made sketches for the following buildings for which a charge of one per cent of estimated cost is made:
Amusement hall____ $12,000 $120.00
Chapel morgue..... 7,000 70.00
Water tower....... 8,000 80.00
270.00
$7,905.72:
Rec. payment...... 3,640.00
Bal............... $4,265.72
Amt. with $2,046.76 brought forward.. $6,312.48
Item No. 6.
DEDUCTIONS FOR SUMS RECEIVED SINCE FILING OF CLAIM.
For sketches for water tower............. $ 80.00
For plans and specifications for Cottage “B” 473.80
For credit on horse and cow barn as per agreement............................ 251.90'
$ 805.70
Total amount of claim............... $6,312.48-
Total amount received or agreed to be deducted ............................. 805.70'
Balance of claim ................. $5,506.78

In behalf of the State, the Attorney General denies its liability; first, because the contract on which claimants rely was, as to most of their claim, made by the Commissioners without any authority and is therefore void: and second, that most of the items making up the claims are barred by the statute of limitations as to unliquidated claims against the State, not having been filed within two years after the cause of action accrued, as required by the act of 1847. Laws of 1847.

For convenience of reference the items making up the foregoing statements have been numbered from one to six.

As to item No. 1 (balance $719.45) and item No. 3 (balance $182.80) being for services rendered in superintending the construction of buildings authorized by the Legislature for which an appropriation had been made by the act of June 14, 1897, the court is of the opinion that these charges constitute legal claims and are in accordance with the contract hereinbefore quoted, viz: two per cent of the contract price for superintendence of construction.

Nor is the statute of limitations, pleaded in behalf of the State, a bar to either of those items (Nos. 1 and 3), nor to item No. 2, as the services for which these charges were made (superintending the construction of buildings under the Gleason contract) were not completed until March 1, 1902; page 16 of Deposition, the claim being filed April 30, 1903. As to item No. 2, $1,144.51, we have doubt as to the legality of this charge; for the construction to be placed on the wording of the contract, so far as it is applicable to this item is not entirely clear. Under their contract claimants were entitled to two per cent for superintendence. Is this commission to be figured on the contract price or on the actual cost price, as has been done in the statement of account. In one clause of the contract (written into a printed form —Exhibit B attached to claimants petition) are these words, “Said owners (the commissioners) * * * agree to pay said architects a sum as stated below— three (3) per cent when any plans, details and specifications are completed, and the balance to be paid at the rate of two (2) per cent on contractors estimates during the construction of the buildings for superintendence.”

Further on in said contract is a clause—in a printed form—which reads, “It is also agreed that until a definite estimate is furnished, the architects’ charges shall be based upon the proposed cost of the work, and the payments received by the architects from the owners during such time, shall be considered as installments of the entire fee, which is based upon the actual cost.” To admit of a reasonable construction the word “cost” as last above used, must be understood as the cost under the contract. The cost to the Commissioners under the contract, not the cost to the contractor, nor the cost to the Commissioners who, succeeding the contractors as in this case, were obliged to finish the contract themselves. That this was the understanding of the claimants is shown by the fact that all their charges (in the statement of their account) are based and figured on the “Bids”— i. e. the cost, the contract price. The contract for the buildings on which this charge for superintendence is based, was let to Gleason & Sons for $154,678.50—on this amount claimants figured their three per cent charge for plans and specifications; but in as much as Gleason & Sons failed to carry out their contract and by reason of such failure, the Commissioners were themselves obliged to complete said buildings, at an additional cost of $57,-225.67 beyond the Gleason contract price, the claimants charge their two per cent commission on this additional cost, for superintendence.

We do not believe the contract is reasonably susceptible of such a construction, nor do we believe that either party at the time the contract was made intended or expected that it should be so construed, if they thought of such a contingency at all, which is not likely.

Had the cost of material, labor, etc. depreciated instead of advancing in price, thereby enabling the Commissioners to complete the buildings for less than the contract price, it is not likely that claimants would have been willing to figure the two per cent commission on the decreased cost of the building, nor should they, under reversed conditions, expect commissions on the increased cost. We more readily adopt this interpretation of the contract (limiting the commission to the contract price) as there was no consequent hardship or loss (rather the opposite) to the claimants, resulting from the completion of the buildings by the Commissioners, though at an increased cost. Under the terms of their contract claimants were obliged to have a superintendent on the grounds during the construction of the buildings “at an expense of $5 a day every day he was there” (page 17 Deposition of W. H. Reeves.) “We furnished a man on the grounds at our expense during the entire construction of the buildings up to the time the contract for the erection of the buildings was forfeited by the Commissioners.” Page 5 of deposition. “How much, if any, of the time we kept a man on the ground after the forfeiture of the Gleason contract I do not know.” Page 7 Deposition Wm. H. Reeves. From the above it would appear that the completion of the building by the Commissioners, though at an increased cost over the contract price, effected a saving to the claimants rather than a loss or hardship. Irrespective of this consideration which has no legal bearing, we think the legal effect of the contract and the intention of the parties was that the percentage for superintendence should be based on the contract price, as was the three per cent for plans and specifications. (Deposition of W. H. Reeves, p. ) “We were paid in full”—for the plans and specifications—“at the rate of three per cent (on $154,768.50) as the contract called for.”

In accordance with the above views we hold that this charge of $1,144.51 (item No. 2 of Statement of Account) should not be allowed.

As to item No. 4, for plans and specifications of eleven buildings, for which in the aggregate a claim of $7,685.72 is made, being three per cent on the total amount ($254,524.00) of the “bids” for said buildings, and as to item No. 5 for sketches of three buildings, for which a claim of $270.00 is made, being one per cent on the total amount ($27,000) of the bids for said three buildings, the Attorney General denies any liability on the part of the State, for the reason that the contract under which the services of claimants were rendered, was made by the Commissioners without authority of law.

From the letter of J. Mack Tanner, secretary, attached to the claim and marked “Exhibit C,” it appears that this whole claim was presented to the Board of Charities and was by them disapproved, with a recommendation that it be not paid excepting as to the items of $719.45 and $182.80 for superintendence under the Gleason contract—basing their disapproval on the contention that the Commissioners, in entering into the contract with Reeves & Baillie, exceeded their authority.

That part of the letter applicable to items No. 4 and No. 5 of the account is as follows:

“A further claim was made for architectural service in preparing plans, specifications, etc., for certain buildings known as Cottages A, B, C and D, horse and cow barn, milk house, bath house, dining hall, hospital building and physician’s cottage. If the Board of Commissions entered into any contract or agreement with Messrs. Reeves & Baillie to prepare such plans, they exceeded their authority for the law states: ‘That they shall not have power to bind the State by any contract beyond the amount of the appropriation, which may at the time have been made for the purposes expressed in the contract,’
“These plans were prepared in 1898. At the time no appropriation had been made for the construction of any of the buildings for which these plans were drawn. In 1899, however, appropriations were made for nine cottages, one hospital building, two dining rooms, one bath house, one horse and cow bam and one milk house. Also for a water tower, for which plans were not prepared. The nine cottages were all constructed from one plan.
“It would appear therefore, that the authority of the trustees or Commissioners did not extend beyond having plans prepared for these buildings for which appropriations were made. Inasmuch as Reeves & Baillie were paid improperly, as we believe, $3,640 out of funds appropriated for other purposes, they have already drawn more than could in our judgment be legally drawn and should not therefore receive the balance above mentioned as being due them until the whole matter shall be legally determined.”

While we coincide w't,ih the Board of Charities in their conclusion that the Commissioners of the Asylum had no authority for entering into the contract with Reeves & Baillie for the plans and specifications, our conclusion is based on other provisions of the law than that cited in Mr. Tanner’s letter—Hurd’s Statutes, chapter 23, section 20—for we are inclined to agree with the contention of claimants attorneys that the restriction contained in said act is applicable only to the trustees of the institutions named in the body of the act. Trustees of most of the State institutions created since the above enactment are, by express provision of the act creating them, restricted and made subject to the above law. Though this provision is omitted in the act of 1895 creating the asylum for the incurable insane at Bartonville, yet we think it can hardly be contended that the omission exempts the Commissioners from the provisions of the constitution applicable to this subject.

Section 19 of Article IV, Constitution of 1870, is as follows:

“The General Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made, nor authorize the payment of any claim, or part thereof hereafter created against the State under any agreement or contract made without express authority of law; and all such un authorized agreements or contracts shall be null and void

In this case there was no appropriation, no express authority for erecting any of the buildings for which these plans and specifications were drawn and for which these charges are made. The appropriation of 1897 was for a specific purpose, for the erection of certain buildings therein named—none of those for which this charge is made being of the number.

It is urged by claimants’ attorneys that the authority for the action of the Commissioners in employing the claimants to make these plans and specifications is contained in the joint resolution adopted by the Senate January 5,1898. Concurred in by the House of Representatives, February 2, 1898. But this effect could not have been accomplished even if that had been the intention of the General Assembly—for the appropriation of 1897, having been made for a specific purpose, it could not by resolution, joint or separate, be diverted from that purpose, as would be done in this case if the contract relied on by claimants had been carried out as to the payment of these items.

“No money shall be drawn from the Treasury except in pursuance of an appropriation made by law, and on the presentation of a warrant issued by the Auditor thereon; and no money shall be diverted from any appropriation made for any purpose, or taken from any fund whatever, either by joint or separate resolution

Const. Art. 4, Sec. 17.

(See Burritt v. Commissioners of State Contracts, 120 Ill. Rep., 322, as to the interpretation of the above constitutional provision and its prohibition of appropriations by “Resolutions.”) Nor does the resolution of the General Assembly disclose any intention to divert the appropriation of 1895 to any other purpose than that indicated in the act. It had been found advisable to remove to a different site a building already constructed, located inadvertently over an abandoned coal mine—authority to the trustees to make such change of site and to the Governor to hasten the construction of said building (provided for by the act of 1895) was all that was attempted or intended by the resolution, which was as follows:

concerning hospital for insane, bartonville.

Whereas, The fortieth General Assembly in regular session made an appropriation of $247,750, for the construction, completion and maintenance of a hospital for the insane at Bartonville, Peoria county, Illinois; and

Whereas, It has been ascertained that said building was being constructed upon an insufficient foundation and that it would be detrimental to the interests of the State to complete said building upon the site where it is now located; and

Whereas, The appropriation by the said General Assembly provides for the completion of said building upon its present site; and

Whereas, It is necessary for the comfort and care of a large number of insane persons now in the several almshouses of Illinois, that said building be completed at the earliest possible moment for the relief of such persons; and

Whereas, The Governor of Illinois has made a careful examination of said structure and all the facts and circumstances surrounding the same, and did, on the 4th day of January, 1898, send a special message to the General Assembly calling attention to the condition of said institution and the need of its immediate completion, and making a request in reference to the appropriation aforesaid; therefore, be it

Resolved, by the Senate, the Souse of Representatives concurring: That it is the sense of the General Assembly that said institution should at once be completed, and that said appropriation as made should be used for that purpose on such site as may be selected by the Board of Trustees of such institution upon the land at Bartonville now owned by the State of Illinois; be it further

Resolved, That we concur in the recommendation of the Governor in said special message and accede to his request therein; be it further

Resolved, That the Governor is hereby authorized and requested to immediately proceed to the reconstruction of said building and its completion at the earliest possible moment, and that he use the appropriation made by this General Assembly, at its regular session for said purpose.

Adopted by the Senate January 5, 1898.

Concurred in by the House February 2, 1898.

We are unable to find anywhere, either in the original act of 1895 creating the institution, nor in the appropriation act of 1897, nor in the above resolution any authority or appropriation by which the Commissioners could bind the State for plans and specifications of buildings to cost (according to the bids included in items No. 4 and No. 5 of the statement of account) the sum of $281,-524—for which there had been, at the date of the contract—February 18, 1898—no appropriation whatever. While we do not question the good faith of the claimants, yet with their intelligence and extended experience in transacting business with trustees and officers and agents of the State, we feel that they were at least negligent and careless in that they failed to inform themselves as to what authority the Commissioners had for making the contract under which this large amount of work was done in the preparation of plans, etc. The wisdom of the constitutional restriction prohibiting payment by the General Assembly of claims created against the State under any agreement or contract made without express authority of law and declaring “all such unauthorized agreements or contracts to be null and void”—is borne out by this case in which no offense more serious than ignorance of the law is suspected or intimated. Yet if this claim of seven thousand or more dollars could be allowed for services rendered under an unauthorized contract, by the same rule there would be nothing to prevent other Boards of Trustees from binding the State in like manner and for unlimited amounts, without reference to legislative authority or appropriations. Apart from the above construction of the law under which we hold that the commissioners had no autohrity to make the contract except as to the so called Gleason buildings, (which were authorized by the appropriation act of 1897) and that the charges for services rendered thereunder must be disallowed—we hold that the defense of the statute of limitations pleaded by the Attorney General bars recovery on all the items of the account, excepting for services rendered in connection with the Gleason contract, superintendence of those buildings not being completed until March 1, 1902 (page 16 of deposition) but the plans and specifications and sketches included in items Nos. 4 and 5 were completed during the winter, spring and summer of 1899—see abstract of evidence pages 5, 6 and 7—and the claim not being filed until April 30, 1903, there was failure to comply with the law which provides that “hereafter all unliquidated claims against the State shall be proved up and filed as above (with the Auditor) within two years from the time such claim may have arisen; and any claim not presented and proved up as above and filed shall be forever barred from payment by the State.” It is contended in the brief and argument filed by claimants’ attorneys that the “last work done on the cottages ‘A’ and ‘O’ and dining hall was performed on April 18, 1902,” referring apparently to work of superintendence. However this may be, it does not establish the right of recovery as to the items contained in this statement of account, which were for services in drawing plans, specifications and sketches completed not later than the summer of 1899, June 1, 1899. The employment of claimant for making plans, specifications and sketches was under the contract of February 18, 1898. Whether or not that contract was authorized, whether it was legal and binding or null and void, the work done under this contract, for which the charges in items No. 4 and No. 5 are made, was completed during the summer of 1899, at which time the cause of action accrued and inasmuch as the claim was not filed until April 30, 1903, it is barred by the statute of 1847, requiring that unliquidated claims shall be filed within two years. It is contended by claimants’ attorneys that as to cottages “A” and “C” and the dining room, claims for these charges is saved from the operation of the statute because “the last work done on them was performed on April 18, 1902” about one year before the claim was filed. If this is correct, that work, presumedly for superintendence of construction on said cottages, must have been done under a separate and subsequent order, understanding or agreement; not that under which the plans and specifications were drawn and upon which this suit is brought, probably after subsequent appropriations were made warranting such employment of the claimant by the Commissioners. It is apparent from the evidence of W. H. Reeves that the plans and specifications for all the buildings named in item No. 4 and No. 5 were ordered in October and November, 1898 (see page 7 of depositions) and were all completed by the 1st of June, 1899—(page 9 of depositions) four years before the filing of this claim—the subsequent employment of claimants (if that was the fact) to superintend the construction of those buildings would not take from the operation of the statute those claims for plans and specifications made in pursuance of a separate order or alleged contract with the Commissioners made in the fall of 1898.

The claimants’ attorneys argue with great earnestness that this court being, as they claim, “a court, not of oppression but one in the nature of a court of equity, which looks to the substance rather than to form and seeks to do justice between the parties,” etc. Granting that this may be true, it cannot be contended or conceded that the court can ignore statutes and laws or by its decisions in effect repeal statutes or repeal the constitution. If the statute of limitations (of 1847) relating to unliquidated claims is unreasonable or works injustice to claimants, its repeal by legislative authority should be sought. This court cannot repeal, amend or ignore the act so long as it is in force. So far as the court is informed or has been able to discover, the binding effect of this statute has been recognized and uniformly applied to all claims coming within its provisions. In the claim of Fairbanks v. the State filed with the Auditor May 11, 1880, the defense of the statute of 1847 was pleaded by the Attorney General in behalf of the State. The question was fully and ably argued by attorneys on both sides and on full consideration it was held by the court that the contention of claimants’ counsel, that the statute of limitations (1847) had, by implication, been repealed by the act of 1877 creating a Commission of Claims, was untenable. That the act of 1877 “provides a forum for hearing and disposing of claims against the State and as to the manner of presentation and pressing such claims; but there is nothing in the act itself that is in conflict with the statute of limitations of 1847 above quoted and for that reason could not repeal that statute by implication.” It was further held that the fact that the Legislature had made appropriations for similar claims, does not have the effect of repealing the law—a statute law cannot be repealed or annulled in any such manner— no authority has been cited by attorneys in this or any other case, so far as we are informed, which can be construed as repealing or attempting to repeal the statute of limitations of 1847. This court has uniformly held and as at present constituted, still holds that the statute is in full force and effect, and in accordance with this opinion we hold that all the items of claimants’ statement of account, excepting those arising under the Gleason contract are barred by this statute of limitations. As to item Ho. 2 for $1,144.51, this charge (founded on the increased cost of construction over and above the contract price) is disallowed as not being warranted by a reasonable construction of the contract dated February 18, 1898, on which claimant relies for recovery.

As to all the charges and claims for services included in item No. 4 (total, $7,635.72) and in item No. 5 (total, $270) the court reject all of said claims, holding that they are founded on a contract made without authority on the part of the Commissioners, for which no appropriation had been made at the date of said contract (February 18, 1898) and that said contract was, therefore, null and void.

Aside from, or in addition to the above finding the court holds further that all the charges for services included in said items No. 4 and No. 5 are barred by the statute of limitations of 1847.

In conclusion, summarizing the foregoing findings, item No. 1, balance $719.45 is allowed; item No. 3, balance $182.80 is allowed, making a total sum of $902.25 that could be properly credited to claimants. Inasmuch, however, as all the other items of account and all other claims herein made are hereby disallowed and rejected; and inasmuch as it appears from the statement of account filed with this claim, and from evidence presented by claimants that the sums of $3,640 and $805.70 (total, $4,445.70) have been paid on this account to the claimants in addition to $4,640.35 (three per cent on $154,678) and $2,374.12 credited in the statement of account, we find that after deducting the above credit of $902.25 to which claimants were entitled there has been paid to said claimants by the Asylum Commissioners, without authority of law, and from appropriations made for other purposes, the sum of $3,542.70, over and above just credits and claims to which claimants were legally entitled.

The claim is therefore rejected. There is no provision for a further finding by this court.


text:
    John R. Clausen v. The State of Illinois.

      Opinion filed April 1, 1905.

      Krueger v. State, ante p. 336, followed:

   This claim being founded upon the same facts and circumstances as the claim of . Louis H. Krueger v. The State of Illinois wherein an opinion was filed at this term of this Court. The finding in said case being the same as in this.

We accordingly award the claimant John R. Clausen the sum of thirty-seven ($37.00) dollars the amount of his claim in this proceeding.


text:
    Bernhardt Ettner v. State of Illinois.

      Opinion filed April 10, 1905.

      Crissey v. State, p, 363 follows:

   This claim is founded upon the same state of facts as the claim of J. N. Crissey v. State of Illinois. Which claim was decided by this court at this term. The reasons for rejecting the same apply in all particulars to this case. This claim is therefore rejected.


text:
    J. N. Crissey v. State of Illinois.

      Opinion filed April 10, 1905.

    1. Statute of Limitations—as to filing of unliquidated claims, still in force. The statute of limitations providing that all unliquidated claims "against the State shall be filed within two years from the time such claims arise, is still in force.
    2. Same—Introduction of hill in legislature within two years does not meet requirements of statute. The statute provides the manner in which a claim must be presented, against the State and the mere introduction of a bill in the general assembly does not meet the requirements of such statute.
    3. Liquidated Damages—what are. A claim for damages for a herd of cattle taken and destroyed by the State where the value of the property must be ascertained from evidence, is a claim for unliquidatd damages.
   The claimant in his bill of complaint alleges, that on the 18th day of January, 1901, the State of Illinois, by its duly appointed, qualified and acting Board of Live Stock Commissioners and its Veterinary Surgeon, acting under the direction and command of said Board, and without the permit or consent of the claimant and without warrant or authority of law, wrongfully, illegally and negligently, and with force, entered upon the premises of the claimant in the County of McHenry in this State, and under a pretended law of this State, took possession of a herd of cows and young cattle then and there the property of claimant and of the value of $940, and drove and carried them away without the consent of the claimant, and caused the same to be shipped and taken to the city of Chicago, a distance of about 70 miles from the said farm of claimant, and there killed and destroyed said cattle without warrant of law, and that there is due claimant from the tate as compensation for said cattle the sum of $474, with interest thereon till July 1,1904, making a total of 545.60.

As a defense to these allegations the State in addition to the general issue pleads:

First. That said cattle were taken with the consent and at the request of the claimant.
Second. That the State has made full payment to the claimant for said cattle
Third. That an accounting and adjustment has been made prior to the filing of this complaint, and that the amount that the State should pay to claimant for said cattle was adjusted, settled upon and agreed to by the claimant, and that the said amount was paid to the claimant in full satisfaction of all claims on account of the destruction of said cattle.
Fourth. That this claim is barred by the statute of limitations.

It appears from the evidence that one of the State Veterinary Surgeons went to the farm of the claimant and obtained from him a written request to test the cattle in question for Tuberculosis. Said request provided that, in the event any of said cattle proved to have indication of the presence of Tuberculosis, to indicate, in the judgment of the State Veterinary, the presence of Tuberculosis in such cattle, then such animals so affected were to be slaughtered; and if post-mortem indicated, in the judgment of the Veterinary, that the flesh of any of said animal was unfit for food, then the carcass of said animal was to be destroyed or manufactured into fertilizer. By said request the claimant also agreed and stipulated that the slaughter and destruction of any of said animals so affected should be without loss to the State of Illinois.

There was also a stipulation in said request that the carcass of any animal so slaughtered which should pass the inspection for human food, was to be disposed of by claimant, and in the event that postmortem examination would not disclose the presence of disease of any animal, the State Board of Live Stock Commissioners was to make compensation to claimant for the difference between the proceeds derived from the sale of such carcass found fit for human food and a fair, reasonable appraised value for such animals on foot, the cattle being appraised by the claimant and the Veterinary Surgeon, and their value agreed upon as sound cattle.

The claimant contends that the request to have these cattle tested and the diseased ones slaughtered was obtained from him by force of threats and intimidation and is therefore void; and that he is entitled to their appraised value as sound cattle.

The proof shows that these cattle were tested at the farm of claimant; that said test showed some were diseased and some not; that the latter were left with the claimant and the former were afterwards taken to Chicago and there slaughtered and a post-mortem examination made for Tuberculosis; that all of said cattle so slaughtered were affected with Tuberculosis in various stages of advancement.

The evidence also shows that the carcasses of said cattle were disposed of by said board according to the stipulations in said request, that an allowance was made to claimant by said board for said cattle according to its rules; that payment of the sum specified in said allowance was made to claimant, and that he accepted said amount without objection or protest, and up to the time of filing this claim in this court made no legal demand for further or additional compensation from the State or from said board. There is nothing in the evidence tending to show that said payment was not made by the State and accepted by the claimant as a full and satisfactory settlement for said cattle. Hence the only logical conclusion to be arrived at is that the claimant voluntarily agreed to have these cattle tested, and that such agreement is binding upon him.

Under this state of the proof, no reason is perceived why the claim should not be barred both in law and equity, and the claimant estopped from recovering additional compensation. All the actions of the claimant subsequent to the signing by him of the request to have these cattle tested lead to the conclusion that said re-quest was made voluntarily and without force or intimidation and that he so considered it.

The statute of limitations is also interposed as a •defense by the State. This statute provides that all unliquidated claims against the State shall be presented within two years from the time such claim may have .arisen.

It is argued at length by counsel for claimant that ■said statute does not apply to this case for three reasons.

First. That said statute has been repealed.

Second. That this is a liquidated claim and does not come within the statute.

Third. That within two years from the time this claim arose there was a bill introduced in the general assembly of this State to pay this claim and that the introduction of said bill meets the provision of the statute requiring claims to be presented within two years.

As to the first contention it has been uniformly held by the commission of claims of which the court of claims is the successor, that said statute is an existing law of this State.

Trickle v. State, decided Oct. 29, 1897;

Henderson v. State, decided Dec. 16, 1897;

Carr v. State, decided Dec. 16, 1897;

Carpenter v. State, decided Dec. 16, 1897;

Fairbanks v. State, decided Dec. 16, 1889.

If the request of claimant to have these cattle tested was void then it conferred no right upon the officers of the State to make an appraisement of the cattle in question, and such appraisement, if made, created no obligation upon the State. Therefore, the claimants’ damages if his contention be correct would be the value of the property taken, which damages must necessarily be ascertained from evidence other than from said appraisement, and therefore would be a claim for unliquidated damages. This claim having been filed in this Court on the 30th day of April A. D. 1904, more than two years after it arose, is therefore barred by the statute of limitations.

As to the third contention. The statute provides the manner in which a claim must be presented against the State and giving said statute the most liberal construction it cannot be held that the mere introduction of a bill in the general assembly in any way meets with the requirements of said statute.

For the above reasons this claim is rejected.


author: Mr. Justice LiNscott

text:
    (No. 2838
    Lillie E. Caldwell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1937.

    Craig & Craig, Craig Van Meter, Fred H. Kelly, James W. Craig, Jr., and Frank C. Winkler, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice LiNscott

delivered the opinion of the court:

On the 10th day of February, 1936, claimant filed her claim with the Clerk of this Court, alleging.that on the 25th day of December, 1935, Amos B. Caldwell, now deceased, was employed as a Highway Maintenance Patrolman for the State of Illinois on Route No. 133, between State Route No. 45 at Areola, Illinois, and the intersection of State Route No. 133 with State Route No. 49; that a blizzard was in progress on said day, and said Amos B. Caldwell went to work to remove drifts from the highway, and according to the testimony, the temperature went down as low as 15 to 20 below zero; that he worked until 6:30 A. M. on December 26, 1935. He continued to work all the afternoon of December 25, 1935, until about 4:00 P. M. when his truck broke down and was taken to a garage at Areola, but they did not have the necessary parts at Areola, and the deceased went with another man to Mattoon, to get the necessary parts. They returned to Areola about 2:00 A. M. on the morning of December 26th, and the weather was very cold. The deceased rested and slept in a chair in the garage for approximately two hours. Sometime between 4:00 and 4:30 A. M., he and his helper left the garage, and he again engaged in his duties.

Claimant alleges that the deceased’s death was caused by exposure and over-exertion and the severe cold weather. He had been in the employ of the State about two years and received $1,280.00 per annum. He lived at Hindsboro, Illinois. The evidence shows that on December 24th, he had been to Paris, Illinois, attending a meeting of the maintenance supervisors and others at the District Engineer’s office at Paris, Illinois. He returned to his home about 6:00 P. M. on the evening of December 24th, 1935. About 2:00 A. M., December 25th, he made arrangements for one of the helpers to go out on the highways to start working in clearing off the snow and drifts. This helper came in about noon on Christmas day, and about that time, the deceased left his home with another helper, having made arrangements with said helper about 9:00 that day. They worked until the truck broke down, the deceased having done all the driving. When the deceased and his helper had their truck repaired, they again went on the road, cleaning off the drifts that had accumulated on the highway. About 6:30 in the morning he stopped his car and made a statement to the effect that when he felt a spell coming on he did not wish to drive. He got out of the truck, walked to the rear end and back again. After he had re-entered the truck, he raised both arms as if stretching and about that time collapsed; was removed to a nearby house and apparently was dead when he was taken to the house.

Dr. J. P. Henderson of Oakland was called and he testified that in his opinion the death "was caused by over-exertion and cold, which brought on an attack of angina pectoris.

The facts are not controverted. He had no children under sixteen years of age, but left a wife who was dependent upon him. The testimony shows that prior to this, the deceased had enjoyed good health, he had worked regularly and died while at work.

There might have been a diseased condition of his heart prior to the date of his death, but if that condition had been accelerated by his efforts on the preceding night and day, that would be sufficient to bring the case under the Compensation Act. This court has jurisdiction of the case; the State had proper notice of the death of claimant’s intestate, and application for adjustment was filed in apt time.

The construction and maintenance of a hard-surfaced paved public highway is the maintenance and construction of a structure under the Workmen’s Compensation Act.

The deceased left a widow and no children. The amount of compensation payable in this case is determined by Section 7a, Workmen’s Compensation Act, which is a sum equal to four times the average annual earnings of the employee, but not less in any event than two thousand five hundred dollars, and not more in any event than four thousand dollars.

The court finds that the deceased and the respondent were, on the 26th day of December, 1935, operating under the Workmen’s Compensation Act; that on the date last mentioned above, said deceased sustained accidental injuries within the meaning of the Act, which did arise out of, and in the course of the employment; that notice of the accident was given said respondent and claim for compensation on account thereof was made on respondent within the time required by the provisions of the Act; that the earnings of the deceased during the year next preceding the injury were $1,280.00, and that the average weekly wage was $24.62.

That the deceased at the time of the injury was 55 years of age and had no child under sixteen years of age.

That the petitioner is entitled to recover compensation in the sum of $4,000.00; that the said petitioner is now entitled to have and receive from the respondent the sum of $882.80, being the amount of compensation that has accrued from the 27th day of December, 1935, to the 12th day of May, 1937; and the further sum of $3,117.20 to be paid to her at the rate of $12.31 per week, payable every two weeks until fully paid, all of which is subject to the approval of the Governor of Illinois.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 2, 1935 (Sess. Laws of 1935, Page 49) and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from the Eoad Fund in the manner provided for in such Act.


author: Mb. Chief Justice Holleeich

text:
    (No. 3031
    Commercial Acetylene Supply Co. Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 1, 1937.

    Claimant, pro se.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mb. Chief Justice Holleeich

delivered the opinion of the court:

From the stipulation of facts herein it appears that claimant was awarded a contract to furnish oxygen and acetylene gas for the use of the respondent at Lincoln State School and Colony from July 1st, 1934 to June 30th, 1935.

The contract provided for a demurrage charge of two cents (2c) per day on all cylinders held beyond an initial thirty-day period. During the term of the contract, cylinders were held beyond the thirty-day period for a total of 2,116 days.

At the close of each month claimant rendered a statement of the amount due it for such demurrage charges, but none of such items were vouchered for payment, and no payment has been made therefor.

The appropriation from which such items were payable lapsed September 30th, 1935, at which time there remained an unexpended balance of such appropriation sufficient to pay the claimant’s account.

From the facts stipulated it appears that under the terms of its contract, claimant is entitled to the amount claimed. It presented its statements promptly, and the failure to approve the same and voucher them for payment was not the result of any negligence on the part of the claimant. The evidence shows that there was an unexpended balance in the proper appropriation at the time the same lapsed, sufficient to pay the amount of claimant’s demand, and under the repeated decisions of this court, claimant is entitled to an award.

Award is therefore entered in favor of the claimant for the sum of Forty-two Dollars and Thirty-two Cents ($42.32).


author: Mb. Chief Justice Hollbrich

text:
    (No. 1902
    Verne Fiedler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 1, 1937.

    Clarence B. Davis, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollbrich

delivered the opinion of the court:

Prior to and on August 5th, 1931 claimant was a member of Troop G, 106th Cavalry, Illinois National Guard, and on that date, while his Company was at Camp Grant, and while he was participating in troop maneuvers, claimant was thrown from his horse and sustained injuries to his left ankle. He was immediately taken to the field hospital at Camp Grant, and shortly thereafter was taken to St. Anthony’s Hospital at Rockford, where a cast was applied to his foot and the lower part of his leg. He was returned to the field hospital the next day, and remained at such hospital until his troop returned home, about ten days thereafter. Upon his return home claimant was placed under the care of Dr. Lockie, one of the medical officers of the National Guard, who continued to treat him for his injuries. Claimant saw Dr. Lockie several times a week for the first three months after his injury and thereafter every month or two until about a year after the accident. The testimony indicated that the cast was not properly applied in the first instance, but same was not entirely removed until about seven weeks after the accident. During the time the cast was on his leg, claimant moved about with the aid of crutches; after the cast was removed he used a cane until about November 1st, 1931.

Claimant was eighteen years of age at the time of the accident and had attended high school during the school year prior to his injury, but had worked during the preceding year. He started back to school again at the opening of school after his injury, but on account of difficulty in carrying books, getting up and downstairs on crutches, and otherwise moving about, he quit after about a week. His condition was such that he could have attended school at the opening of the February, 1932, semester, but other reasons prevented him from doing so, and he did not thereafter return to school.

A Board of Medical Examiners was convened at Hines Hospital on November 10th, 1931 to consider claimant’s case, and such Board made the following findings:

“An examination of the left ankle reveals a slight enlargement of both the internal and external malleoli, particularly the internal. There is slight soft tissue thickening over the ankle but not sufficient to pit from pressure. The patient dorsal flexes the left ankle to a normal range. Plantar flexion is limited very slightly in the extreme. Abduction and adduction (turning out and in of ankle) of the left ankle is possible to one-half of the normal range. There is no actual shortening of the left lower extremity. No atrophy of the muscles. One-half inch increase in the circumference of the left ankle as compared with the right. The longitudinal arches of both feet are depressed to the second degree with pronation. The toes are normal. The condition of the arches does not produce symptoms at this time.
“Functionally, the results of the treatment are good; patient has no permanent residual disability. No further treatment is indicated for this condition. Diagnosis: Fracture Left Astragulus, Recent, Healed.
“Recommendations: It is the opinion of the Board that this patient’s ankle now has reached the point where the soldier can resume his regular employment.”

Claimant did not procure regular employment until a year and a half or two years had elapsed from the date of the injury, but the evidence does not show that the failure to procure employment resulted wholly from his physical condition.

He is now employed as a musician, and testified that his foot still bothers him, particularly after strenuous exercise or after walking several miles.

Dr. Lockie died prior to the taking of testimony herein, and no record of his treatment or findings is in evidence.

Doctor bills in the amount of $48.00 were paid by the respondent, and claimant was also paid $178.00 for approximately three months’ compensation pursuant to the provisions of Section 10 of Article 16 of the Illinois Military and Naval Code.

Section 11 of Article 16 of the Military and Naval Code of this State provides that in every case where an officer or enlisted man of the National Guard shall be injured while performing his duty in pursuance of orders from the Commander-in-Chief, such officer or enlisted man shall have a claim against the State for financial help and assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand.

Claimant was injured while performing his duty in pursuance of orders from the Commander-in-Chief, and therefore has a claim against the State for financial help or assistance, and the only question for this court to determine is the question as to whether claimant has already been fully compensated for the injuries so sustained by him, or whether the merits of the case entitled him to further compensation.

Under all of the evidence, we feel that the injury sustained by claimant, the disability resulting therefrom, and the resulting loss of wages, entitle him to additional compensation, and in our judgment the payment of an additional sum of Three Hundred Dollars ($300.00) will fully compensate him therefor.

Award is therefore entered in favor of the claimant for the sum of Three Hundred Dollars ($300.00).