text:
    (No. 2629
    John A. Paluchowski, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 3, 1937.

    Joseph S. Perry, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant was employed as a laborer in the Highway Department of the State of Illinois, his duties being that of a cement finisher. On November 20, 1934 he was given a piece of lumber 2x2, 18 inches long to cut in half. Thé road crew had a hand saw to use for such purposes but claimant chose to go to a nearby milling company which operated a power saw, and there attempted to saw the stick. In doing so the saw struck the second finger on his left hand, and claimant contends it completely cut off the first phalange thereof. By agreement of counsel the records herein disclose that the claimant appeared at the hearing of this cause, and his finger was measured and that the measurement showed a difference of one-half inch in the length of the injured finger and the corresponding finger on the right hand.

Claimant gave as an excuse for using the power saw that it was much quicker than if he had attempted to use the saw which was available in the road equipment. His foreman, Mr. Vogt, testified that had he used the hand saw it would in his opinion have required about one-half hour to saw the strip in question.

Plaintiff was averaging about One Hundred ($100.00) Dollars per month in wages and he received the sum of Thirty-six and 08/100 ($36.08) Dollars during the time lost by him as a result of his accident. He seeks a further award for temporary total incapacity for the time lost by him as a result of said accident and for the total loss of the first joint of said second finger. At the time of the accident he was married but had no children under the age of sixteen years. The records of the Division of Highways disclose that claimant returned to work January 19, 1935, making a period of temporary total incapacity of eight and one-half (8%) weeks.

It is apparent that claimant in taking the sticks of lumber to the mill company and there attempting to operate a power saw, without any instructions or orders from his superior authorizing him to engage in such work, instead of using the hand saw as was apparently expected of him, was acting without and not within the course of his employment. One employed to work in a certain field of endeavor who departs from that work without authority and engages in a type of work more hazardous, and is injured in such work, is not entitled to an award under the provisions of the Workmen’s Compensation Act. The injury to claimant did not arise out of and in the course of claimant’s employment.

Weiss Paper Mill Co. vs. Ind. Com., 293 Ill. 282.
Dietzen Co. vs. Ind. Bd., 279 Ill. 11.

Award is denied and claim dismissed.


source: Caselaw Access Project

author: Mr. Justice Yantis

license: Public Domain

text:
    (No. 2918
    Max Sieloff, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 3, 1937.

    Joseph S. Perry, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant was employed as a laborer in the Division of Highways of the State of Illinois, and while engaged in operating a power mower on September 5, 1935 the thumb of his right hand became enmeshed in a chain on a sprocket wheel attached to said mower. The end of the bone was cut and it required two stitches to pull the finger together over the end of the bone. Measurement of the thumb discloses that the injured thumb is now approximately three-sixteenths of an inch shorter than the thumb on the left hand. Claimant testified that just a little bit of the finger nail was left. He received medical attention over a considerable period and incurred a total bill therefor in the sum of Fifty ($50.00) Dollars, payable to Dr. J. R. Tobin of Elgin. The State Highway Office reports that claimant returned to work November 21, 1935. Plaintiff by his claim seeks an award for temporary total incapacity for one month and twenty-two days, Fifty ($50.00) Dollars doctor’s bill incurred, and also Three Hundred Ninety-three and 75/100 ($393.75) Dollars for the total loss of the first phalange of the thumb on his right hand. Plaintiff was unmarried at the time of the accident and his wages are determined on a basis of Four ($4.00) Dollars per day and two hundred days employment per year, making Eight Hundred ($800.00) Dollars per year or Fifteen and 38/100 ($15.38) Dollars per week.

Under the holdings of the Supreme Court and previous decisions of this court we find that claimant is not entitled to any compensation for the loss of the portion of the thumb suffered in said accident, as the record discloses that he lost but three-sixteenths of an inch from such phalange and that no award is due for a portion of such first phalange under Section 8 (e) 6 of the Workmen’s Compensation Act.

McMorran & Co. vs. Ind. Com., 290 Ill. 569.
Nelson vs. State, 8 C. C. R. 70.

Claimant is entitled to an award for the medical expense incurred by him in the care of his thumb, in the sum of Fifty ($50.00) Dollars, and he is further entitled to compensation for temporary total incapacity for eleven (11) weeks at fifty (50) per cent of Fifteen and 38/100 ($15.38) Dollars, or Eighty-four and 59/100 ($84.59) Dollars.

An award is therefore hereby entered as follows:

To Max Sieloff for temporary total incapacity................$84.59
Max Sieloff for use of Dr. J. R Tobin.................... 50.00.

This award being subject to the provisions of an Act entitled, “An Act makmg an appropriation to pay compensation claims of State employees and providing for the method of payment thereof,” approved July 2, 1935 (Sess. Laws 1935 p. 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 appropriation from the Boad Fund in the manner provided in such Act.


author: Mr. Chief Justice Hollerich

text:
    (No. 3051
    Peter Tivnan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 3, 1937.

    Edwin A. Feldott, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed his complaint herein on January 21st, 1937, and alleges therein in substance that on the 22d day of January, A. D. 1935, about seven-thirty or eight o’clock p. m., he was driving ids Plymouth automobile in a northerly direction on Broadway in the Village of Melrose Park, in Cook County, and was approaching North Avenue in said village; that the roadway was covered with ice and was very slippery; that when he was in the center of the intersection of North Avenue and Broadway he noticed that said Broadway ended at North Avenue; that he tried to stop his automobile, but on account of the slippery condition of the highway was unable to do so, and said automobile skidded into a ditch on the north side of North Avenue; that at that time the respondent was in control of said North Avenue at said intersection; that the accident in question resulted from the negligence of the respondent in failing to have proper lights or barricades on said highway at said intersection for the protection of the traveling public; that the claimaüt was in the exercise of all due care and caution for his own safety, and that by reason of the negligence of the respondent as aforesaid, he sustained serious and permanent injuries, and his automobile was damaged; that he was required to pay $500.00 for medical, hospital and nursing • bills, as well as $200.00 for repairs to his automobile; and asks an award in the amount of $25,000.00.

The Attorney General has filed a motion to dismiss the ease for the reason that there is no liability on the part of the defendant under the facts set forth in the complaint.

This court has repeatedly held that in the maintenance of its hard-surfaced highways the State exercises a governmental function, and that in the exercise of such function, it is not liable under the doctrine of respondeat superior for the negligence of its servants and agents. This has been decided so often that the citation of authorities seems useless. See George McGready, et al vs. State, No. 2604, decided at the September, 1935, term of this court, and cases there cited.

Under the facts set forth in the complaint, there is no legal liability on the part of the respondent, and the motion of the Attorney General must therefore be sustained. Crabtree vs. State, 7 C. C. R. 207.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 2970
    The Trust Company of Chicago, Administrator of the Estate of Eleanor Handzel, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 3, 1937.

    Robert F. Munsell, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein as administrator of the estate of Eleanor Handzel, deceased, seeks an award because of the death of said Eleanor Handzel alleged to have occurred as the result of injuries sustained in an automobile collision. The complaint recites that the car in which decedent was riding was struck by a passenger bus from the St. Charles School for Boys that was then and there being operated in a careless and negligent manner, and the award is sought because of the alleged negligence of the driver of said bus as the agent, servant or representative of the State of Illinois.

The Attorney General has filed a motion on behalf of respondent to dismiss the complaint for the reason that plaintiff’s claim is predicated solely on the purported liability ' of respondent for the alleged negligence of an employee. Respondent is entitled to the allowance of said motion. The rule applicable thereto has repeatedly been set forth as follows:

“The State, as a sovereign, is not liable for damages, injuries or death resulting from the negligence of its officers or employees. The doctrine of respondeat superior does not apply to the State.”
Crabtree vs. State, 7 C. C. R. 207.
Childress vs. State, 8 C. C. R. 223.

The motion to dismiss the complaint is allowed and cause dismissed.


author: Mb. Chief Justice Hollebich

text:
    (No. 2916
    Western Dairy Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 3, 1937.

      Rehearing denied June 11, 1937.

    Edelson & Paullin, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

Claimant filed its complaint herein on June 22d, 1936, and seeks to recover the sum of $194.66 which it alleges it overpaid to the Secretary of State as franchise tax for the years commencing July 1st, 1934 and July 1st, 1935.

It appears from the complaint that on February 3d, 1934 claimant filed its annual report with the Secretary of State, in which it set forth that the sum of its stated capital and paid in surplus for the year commencing July 1st, 1934 was $1,281,876.25. A similar report was made for" the year commencing July 1st, 1935, and the Secretary of State thereafter assessed, and the claimant paid, a franchise tax of $640.95 in each of such years, said tax being based upon the sum of the stated capital and paid in surplus as set forth in the annual report filed by the claimant in each year, as aforesaid.

Claimant alleges that its stated capital and paid in surplus for the years commencing July 1st, 1934 and July 1st, 1935 was inadvertently set forth in its aforementioned annual reports at $1,281,876.25, and that the same should have been $1,087,210.98; that by reason of its error as above set forth, it paid the sum of $97.33 for each of such years in excess of the amount it was legally required to pay, and asks for an award for the amount of such excess payments.

On June 1st, 1936 claimant caused to be filed in the office of the Secretary of State its supplemental annual report for the year commencing July 1st, 1934, setting forth a total of stated capital and paid in surplus in the sum of $1,087,210.98.

Section 133 of The Business Corporation Act of this State provides that the annual franchise tax payable by each domestic corporation shall be computed at the rate of one-twentieth of one per cent for the twelve-month period commencing on the first day of July of the year in which the tax is payable.

Section 132 of The Business Corporation Act provides as follows:

“The basis for the annual franchise tax payable by domestic corporations shall be the amount represented in this State, determined in accordance with the provisions of this section, of the sum of its stated capital and paid in surplus, on the thirty-first day of December of the preceding calendar years, minus the amount by which the sum of the stated capital and paid in surplus may have been reduced after the thirty-first day of December of the preceding calendar year and prior to the 25th day of June of the current calendar year as disclosed by any report or document filed by it with the Secretary of State.”

In its annual reports for the years 1934 and 1935, claimant set forth that the sum of its stated capital and paid in surplus on December 31st of the preceding year was $1,281,875.25, and it was assessed and paid a tax upon that amount.

The supplemental annual report for 1934, which was filed June 1st, 1936, could not be effective until after the same was filed in the office of the Secretary of State, and therefore it could have no effect on the amount of the franchise tax for the years commencing July 1st, 1934, and July 1st, 1935, which taxes had been paid long prior to the filing of such supplemental report. It was effective for the year commencing July 1st, 1936 and claimant’s franchise tax for that year was reduced accordingly.

The question here involved is whether a corporation which has paid an excessive franchise tax, as the result of its own mistake or error, is entitled to recover the amount of the excess so paid.

The rule is well established in this State that where an illegal or excessive tax is paid voluntarily, with full knowledge of all the facts, the same cannot be recovered. It is equally well established that where such tax is paid under a mistake of fact, it is not considered as having been paid voluntarily; also that where such tax is paid under a mistake of law, it may not be recovered. Alton Light & Traction Co. vs. Rose, 117 Ill. App. 83; Yates vs. Royal Insurance Co., 200 Ill. 202; Board of Education vs. Toennigs, 287 Ill. 469; School of Domestic Arts vs. Harding, 331 Ill. 330; Richardson Lubricating Co. vs. Kinney, 337 Ill. 122; Hettler Lumber Co. vs. Cook County, 336 Ill. 645; Cooper, Kanaley & Co. vs. Gill, 363 Ill. 418; American Can Co. vs. Gill, 364 Ill. 254.

The difficulty arises not with the principles of law but with the application of such principles to the particular case.

In this case the facts with reference to the amount of its stated capital- and paid in surplus were peculiarly within the knowledge of the claimant; there was no mistake on the part of the Secretary of State who assessed the tax in accordance with the annual report prepared and filed by the claimant; the only error was that of the claimant. No objection was made to the assessment, and no request for a hearing thereon was made in accordance with the provisions of Section 143 of The Business Corporation Act.

There are numerous authorities to the effect that where an illegal or excessive tax is imposed by reason of the negligence or inadvertence of the taxpayer, and thereafter paid by him, such payment is not made under a mistake of fact, and cannot be recovered. Bateson vs. City of Detroit, 143 Mich. 582; Cooley on Taxation, 4th Edition, sec. 1295; Shenango, etc. vs. Fairfield Township, 229 Pa. 357; Dubuque & Sioux City R. Co. vs. Board of Supervisors, 30 Ia. 16; O’Reilly vs. Clark, 48 R. I. 407; 61 Corpus Juris, p. 992, sec. 1270; National Lock Co. vs. State, 8 C. C. R. 320; Seth Seiders, Inc. vs. State, 7 C. C. R. 9.

On the record before us, and under the law as above set forth, claimant is not entitled to an award.

Award is therefore denied and the case dismissed.


text:
    (No. 3073
    Euphie Wood, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 3, 1937.

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

delivered the opinion of the court:

From the complaint herein it appears that prior to and on November 2d, 1936 claimant, who was then seventy years of age, resided on a farm near the railroad station known as Pisgah, in Morgan County.

While she was performing her household duties on the last mentioned date, she heard a knock at the side door. She responded thereto and found a man who was later ascertained to be Joseph Flynn, an escaped patient from the Jacksonville State Hospital, Jacksonville, Illinois. He asked for food, and while claimant was preparing the same, Flynn grabbed her about the throat and struck her. She defended herself to the best of her ability, but Flynn dragged her to the basement where she was assaulted and raped and was left unconscious. When consciousness returned Flynn had departed and claimant telephoned for help. Flynn was apprehended shortly thereafter by the sheriff who had been notified of his escape by the authorities of the Jacksonville State Hospital. Claimant was afterwards taken by ambulance to the Passavant Memorial Hospital at Jacksonville, and incurred expenses for medical and hospital care, nursing, etc., in the total amount of $102.75, and asks an award in an amount sufficient to cover such expenses, and in addition thereto the sum of $1,500.00.

The Attorney General has entered a motion to dismiss the case for the reason that there is no liability on the part of the respondent under the facts set forth in the complaint.

This court has repeatedly held that the State in the conduct of its penal and charitable institutions is engaged in a governmental function, and that in the exercise of such functions, it is not responsible for the acts of its servants and agents in the absence of a statute making it so liable. See Jones vs. State, 8 C. C. R. 77, and Palumbo vs. State, 8 C. C. R. 196, and cases there cited.

There is no theory of law upon which to base any legal liability on the part of the State for the acts of inmates of State institutions, in the absence of a statute making it so liable.

We have no authority to allow an award in any case unless there would be a legal liability on the part of the State if the State were suable. Crabtree vs. State, 7 C. C. R. 207.

There being no legal liability on the part of the State, we have no authority to allow an award, regardless of how much the case might appeal to the sympathies of the court. Award must therefore be denied. Award denied. Case dismissed.


text:
    (No. 2958
    World Book Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 3, 1937.

    Claimant, pro se.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

The record discloses that on May 21, 1934 claimant delivered certain merchandise described in the claim filed herein to the St. Charles School for Boys, being one of the State institutions under the control of the Department of Public Welfare of Illinois. That said merchandise had been legally purchased by respondent, and that the charge made therefor was the fair reasonable value thereof and the price customarily charged therefor; that at the time same was ordered and delivered there was an appropriation in force from which said bill might have been paid, but that said appropriation lapsed before claimant’s bill was submitted, and no part of said account has been paid. The facts being undisputed that the State received the supplies ordered, that same were legally purchased, and that although the appropriation out of which said account might have been paid had lapsed, that claimant was not guilty of any unreasonable delay, an award should be made. The claim is therefore allowed and an award entered in favor of claimant in the sum of $4.00.


text:
    (No. 2500
    Butler Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 10, 1937.

    Harry W. Beiher, for claimant.
    Otto Kerner, Attorney General; John Ivasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed its complaint herein on September 5th, 1934 and seeks to recover the snm of $343.45 which it claims to have paid to the Secretary of State as a franchise tax in excess of the amount which it was legally required to pay under the terms and provisions of The Business Corporation Act of this State.

It appears that claimant filed its annual report with the Secretary of State on February 23d, 1934 in which report it showed a stated capital and paid in surplus in the amount of $2,456,800.04, and showed an authorized capital stock as of the same date as follows, to wit: preferred, 27,700 shares of the par value of $100.00 per share, and 2,300 shares of common of no par value.

The Secretary of State assessed a franchise-tax based upon such report, in the amount of $1,500.00, which was paid by claimant on June 26th, 1934.

On June 29th, 1934 claimant filed in the office of Secretary of State certain articles of amendment to its articles of incorporation, said amendment reducing* the stated capital and paid in surplus from $3,000,000.00 to $2,313,086.40. The franchise tax on the last melationed amount would have been $1,156.55 and the difference between such amount and the sum of $1,500.00 which claimant paid on June 26th, 1934 as aforesaid, to wit, the sum of $343.45, is the amount for which claim is filed.

Section 132 of The Business Corporation Act (Bar Association Statute of 1935, ch. 32) provides in part as follows:

"The basis for the annual franchise tax payable by domestic corporations shall be the amount represented in this State, determined in. accordance with the provisions of this section, of the sum of its stated capital and paid in surplus on the thirty-first day of December of the preceding calendar year, minus the amount by which the sum of the stated capital and paid in surplus may have been reduced after the thirty-first day of December of the preceding calendar year and prior to the 25th day of June of the current calendar year as disclosed by any report or document filed by it with the Secretary of State.”

For claimant to have the benefit of the amendment to its articles of incorporation reducing its stated capital and paid in surplus as above set forth, it was necessary that such articles of amendment be filed in the office of the Secretary of State prior to the 25th day of June, 1934. Such articles of amendment, however, were not filed until June 29th, 1934, and consequently claimant’s annual franchise tax was required to be computed on the basis of the sum of its stated capital and paid in surplus on the 31st day of December, A. D. 1933.

The sum of claimant’s stated capital and paid in surplus on December 31st, 1933, as shown by said annual report was $2,456,800.04, and therefore, in the absence of any other showing made in accordance with the statutory requirements, the capital stock tax should have been assessed in the amount of $1,228.40. Claimant therefore paid $271.60 in excess of what it should have paid.

The question for our consideration, therefore, is whether claimant is entitled to a refund of the amount of such excess, under the facts in this case.

Sections 95, 96, 115 and 116 of The Business Corporation Act require every domestic corporation and every foreign corporation authorized to do business in this State to file an annual report with the Secretary of State between the 15th day of January and the last day of February of each year.

Section 143 of said Business Corporation Act provides that:

“Between, the first day of March and the fifteenth day of June of each year the Secretary of State shall assess against each corporation, domestic or foreign, required to file an annual report in such year the franchise tax payable by it for the twelve months’ period commencing on the first day of July of such year in accordance with the foregoing provisions * *

Section 132 hereinbefore quoted, prescribes the basis upon which the franchise tax shall be assessed.

Said Section 143 also provides that the Secretary of State shall:

“mail a written notice to each corporation against which such tax is V assessed, addressed to such corporation at its registered office in this State, notifying the corporation (1) of the amount of franchise tax assessed against it for the year next ensuing * * *; (2) that objections, if any, to such assessment will be heard by the officer making the assessment, on or before the twenty-fifth day of June of such year, upon receipt of a request from the corporation; and (3) that such tax * * * shall be payable to the Secretary of State on the first day of July next succeeding the date of the notice”; * * * Failure to receive such notice shall not relieve the corporation of its obligation to pay the tax * * * or invalidate the assessment thereof.”

Such section also provides that the Secretary of State shall have power to hear and determine objections to any assessment of franchise tax at any time after such assessment and, after hearing, to change or modify any snch assessment.

It is not contended that the Secretary of State did not mail, or that the claimant did not receive the notice required to be mailed by such Secretary under Section 143. Claimant filed no objections with Secretary of State relative to the tax assessed against it, and made no request for a hearing in the matter as required by such section.

Section 2a of an Act entitled “An Act in Delation to the Payment and Disposition of Moneys Deceived for or on Behalf of the State” (Bar Association Statutes, 1935, ch. 127b, Par. 35,) provides as follows:

“It shall be the duty of every officer, board, commission, commissioner, department, institute, arm or agency, brought within the provisions of this Act by Section 1 hereof to notify the State Treasurer as to money paid to such officer, board, commission, commissioner, department, institute, arm or agency, under protest and the Treasurer shall place such money in a special fund to be known as the protest fund. At the expiration of thirty days from the date of payment the money shall be transferred from the protest fund to the appropriate fund in which it would have been placed had there been payment without protest, unless the party making such payment shall within such period file a bill in chancery and secure a temporary injunction restraining the making of such transfer, in which case such payment shall be held in the protest fund until the final order or decree of the court.”

The statutes provided a full and complete remedy for the claimant and it should have taken advantage of the provisions of law enacted for its protection. Having failed to take advantage of the remedies provided by statute, it follows that the payment made by claimant was made voluntarily and without compulsion or duress.

Our courts have uniformly held that where an illegal or excessive tax is paid voluntarily and with a full knowledge of all the facts, it cannot be recovered. Alton Light & Traction Co. vs. Rose, 117 Ill. App. 83; Walser vs. Board of Education, 160 Ill. 272; Yates vs. Royal Ins. Co., 200 Ill. 202; Board of Education vs. Toennigs, 287 Ill. 469; School of Domestic Arts vs. Harding, 331 Ill. 330; Merchants Trust Co. vs. Harvey, 335 Ill. 284; Richardson Lubricating Co. vs. Kinney, 337 Ill. 122; Hettler Lumber Co. vs. Cook County, 336 Ill. 645; Cooper, Kanaley & Co. vs. Gill, 363 Ill. 418; American Can Co. vs. Gill, 364 Ill. 254.

It is also uniformly held that where such tax is paid under a mistake of fact, it is. not considered as having been voluntarily paid, and may therefore be recovered.

It is also uniformly held that where such tax is paid under a mistake of law, it may not be recovered. Although the foregoing principles of law are firmly established by the decisions, yet the application of such principles to the facts in the particular case is often involved in considerable difficulty.

In this case the Secretary of State made an erroneous assessment; there was no fault on the part of the claimant, but the facts relative to the amount of claimant’s stated capital and paid in surplus were as well known to the claimant as they were to the Secretary of State, and both parties were chargeable with a knowledge of the law relative to the amount of the tax to be paid.

In the case of Alton Light & Traction Co. vs. Rose, supra, the plaintiff tendered to the Secretary of State for filing, two certificates of corporate consolidation, together with a fee of $1.00 for the filing of each certificate. The Secretary of State refused to file the same unless he was paid the sum of $1,045.00, which he contended was the proper filing fee. Plaintiff objected to the payment of such fee, but eventually paid the same and commenced suit to recover the amount so paid, which it claimed to be excessive, and without warranty or authority in law. The court held, however, that the fees were paid voluntarily, without legal duress, or compulsion, and therefore were not recoverable.

In the case of Yates vs. Royal Insurance Co., supra, the plaintiff sued to recover certain taxes which it had paid under the provisions of a law which was thereafter held to be unconstitutional. The court there held that the payment was voluntarily made, without fraud or compulsion, and therefore was not recoverable. In that case the court quoted from Cooley on Taxation, 2d Ed. 810, as follows:

“All payments are supposed to be voluntary until the contrary is made to appear. Nor is the mere fact that a tax is paid unwillingly or with complaint of any legal importance, but there must be in the case some degree of compulsion, to which the taxpayer submits at the time but with notification of some sort equivalent to reservation of rights.”

In the case of Walser vs. Board of Education, supra, the county clerk of Cook County by mistake entered upon the tax collector’s book certain real estate as lying and being in School District No. 1, whereas in fact the same was located in District No. 2. The owners of the property had no knowledge of the mistake made by the clerk, and paid the tax assessed against their lands, which was substantially in excess of what they should have been required to pay if their lands had been properly assessed. In that case the court, on page 275, said:

“The tax levied by District No. 1, as extended on lands belonging to District No. 2, was an illegal and void tax. That tax was paid by the owners of the property so illegally assessed, voluntarily. The books were open to inspection by the taxpayers, and the means of knowledge existed to learn and know all the facts. Money paid voluntarily by one with knowledge or means of knowledge of all the facts cannot be recovered back.

In the case of Hettler Lumber Co. vs. Cook County, supra, the plaintiffs owned two lots abutting on the river. The lots as originally laid out contained 886,880 square feet. In 1898 the City of Chicago condemned a portion of each lot for the purpose of straightening the river, and thereby reduced the area of said lots to 646,832 square feet. After such condemnation the board of assessors continued to fix the valuations of such lots upon the basis of their original areas. As the result of such action the plaintiff in the eight years following 1918, paid $21,553.07 in taxes, in excess of what it would have been required to pay if the assessors had made the proper reduction in valuation after the area of the lots had been decreased. Plaintiff sued to recover the amount of such overpayment and interest, on the ground that such payments had been made under a mutual mistake of fact. The court held, however, that the payments were made voluntarily and therefore could not be recovered.

In the case of Cooper, Kanaley & Co. vs. Gill, supra, plaintiffs’ property was improved by a one-story building and the property adjoining on the east was improved by a three-story hotel. By mistake of a clerk in the assessor’s office the hotel building was marked on the record card of plaintiff’s property. As the result of such mistake, plaintiff’s property was assessed more than it should have been, and the taxes paid by it for 1929 and 1930 were $2,001.24 in excess of what it would have been required to pay if such mistake had not been made. The court held that the payments were made voluntarily and could not be recovered, and in discussing the question, used the following language (p. 421):

“Where taxes have been voluntarily paid in full on an over-assessment, due to arriving at a value based on mistake either of fact or judgment or other error on the part of the assessor, and where fraud was not an element in the over-assessment, courts are without jurisdiction to afford relief.”

In the case of American Can Co. vs. Gill, supra, certain tanks had been assessed for general taxation at $2,201.00 and $620.00 respectively. The figures were handled in the assess- or’s office through a comptometer, and in the operation of the machine, the decimal point was shifted two places to the right, resulting in an entry in the tax books of a valuation on said tanks of $220,100.00 and $62,000.00 respectively, upon which valuations taxes were assessed and paid. Plaintiff sought a refund under the theory of double taxation. The court held that there was no double taxation, and that the taxes had been voluntarily paid and therefore could not be recovered.

The question as to when illegal or excessive tax payments may be recovered, is the subject of an exhaustive annotation in 64 A. L. R., commencing on page 9. The general rule is set forth on page 10, as follows:

"It is a well-settled rule, in the absence of statute, that the right of a party who has paid a tax, local assessment, or license fee, to recover the same back, depends upon whether or not the payment was involuntary. If the payment was voluntary, it cannot be recovered; if it may be deemed involuntary, a recovery may be had.”

Under the heading of general rules it is pointed out on page 11 that “the terms ‘voluntary’ and ‘involuntary’ when used with reference to payments of taxes, are not applied in their ordinary sense.”

Under the heading “Existence and adequacy of other remedy or relief ’ ’, the annotator, on page 54, says:

“There is a conflict in the authorities on the question whether the existence of another remedy or means of relief will render a payment of taxes voluntary, where the taxpayer neglects to avail himself of such remedy.
“It has frequently been held that the compulsion brought to bear upon the taxpayer must, in order to render his payment involuntary, have been of such a nature that he had no other reasonable means of immediate relief from the same, except by making the payment.”

After citing a long list of cases from different jurisdictions, he proceeds (page 55):

“And according to this line of cases, representing, probably, the weight of authority, where the taxpayer has some other legal remedy or protection against the coercive acts of the collecting officer, he is bound to avail himself thereof, and, if he neglects to do so, and pays the tax, such payment is deemed voluntary.”

The annotation in 64 A. L. R. 9, is supplemented by a further annotation in 84 A. L. R. 294.

As shown by this annotation, the question before us has been the subject of litigation in practically every State in the Union, and as usual, the views of the several courts are not entirely in harmony. Our own courts are inclined to construe the law strictly, in favor of the taxing body and against the taxpayer.

From the record in this case it appears that claimant 'made no objection to the tax assessed against it and made no request for a hearing thereon, in accordance with the statute; also that the tax in question was paid without protest, and with a full knowledge of all the facts. Under the decisions of our courts, such payment constituted a voluntary payment within the legal meaning of those words, and therefore the claimant is not entitled to have the same refunded. Award denied. "Case dismissed.


author: Mr. Chief Justice Hollerioh

text:
    (No. 3048
    James B. Emerick, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 10, 1937.

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

delivered the opinion of the court:

Claimant alleges in his complaint that during the years 1933, 1934 and 1935 he was the owner of a Plymouth sedan automobile; that in each of such years he filed with the Secretary of State his application for registration of such automobile, in which application he set forth that the horsepower of such automobile was 26.00; that as a matter of fact the horsepower of such automobile was 23.44; that by reason of his error as above set forth, he was required to pay $4.00 in each of such years in excess of what he should have paid, and asks for a refund of the amount of such excess, to wit, $12.00.

The Secretary of State had no knowledge of the horsepower of snch automobile other than the statement contained in claimant’s application. The registration fee imposed by such Secretary was based upon the application filed by the claimant, and was strictly in accordance with the statute. The only error in connection with the matter was the error of the claimant as above set forth.

In the case of Butler Company vs. State, No. 2500, decided at the present term of this court, we held that where an illegal or excessive tax is paid voluntarily and with a full knowledge of all the facts, it cannot be recovered. However, where payment of such tax is made under a mistake of fact, it may be recovered.

In the case of Western Dairy Co. vs. State, No. 2916, also decided at the present term of this court, we held that where an illegal or excessive tax is imposed by reason of the negligence or inadvertence of the taxpayer, and thereafter paid by him, such payment is not made under a mistake of fact, and therefore cannot be recovered.

The registration fee in question in this case was not paid under a mistake of fact within the legal meaning of such words, and therefore claimant is not entitled to an award.

Award denied. Case dismissed.


text:
    (No. 2657
    John Fogarty and Anna Fogarty, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 10, 1937.

    Hogan & Coale, for claimants.
    Otto Kernbr, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion the court:

Since August 1st, 1927, claimants have been and still are the owners in joint tenancy of a lot in the City of Taylorville, Illinois, having a frontage of 50 feet on Snodgrass Street and a depth of 150 feet. Snodgrass Street commences at Park Street and extends in a northerly direction. Park Street runs east and west and now constitutes a part of S. B. I. Boute No. 48.

The Wabash Bailway extends in a northeasterly and southwesterly direction, just east of claimants ’. property. Such railway previously crossed Park Street at grade, but when said Park Street was made a part of S. B. I. Boute No. 48, a subway was constructed under the railroad and in the construction thereof, said Park Street was excavated for some considerable distance on each side of the railroad right-of-way.

Claimants’ lot is located approximately J00 feet north of the north line of Park Street, and the natural grade of the land prior to the excavation for the subway was in a southerly or southeasterly direction towards Park Street, such grade being approximately 4%. When the subway was completed a retaining wall was constructed along the north side of Park Street, including what had previously been the entrance from Snodgrass Street to Park Street, and a considerable quantity of excavated material was placed on the premises just north of such retaining wall, and between such wall and the claimants’ property, thereby raising the level of such property a considerable extent and entirely cutting off any access from Snodgrass Street to Park Street. A drain was constructed near the southeast corner of claimants’ lot for the purpose of tailing care of the surface water, but there was testimony tending to show that such drain was not entirely effective and that the excavated material placed on the lots adjoining claimants’ premises interfered in a substantial manner with the natural drainage of said lot.

Claimants purchased their lot in 1927, and thereafter constructed thereon a frame dwelling, consisting of four rooms, bath and basement, at a total cost of over $3,800.00.

Claimants contend that their property has been damaged as the result of the construction of said subway, in the following particulars:

1. By cutting off all access to Park Street from Snodgrass Street.

2. By interference with the natural drainage from their property as it existed prior to the improvement.

It is not contended by the respondent that claimants’ property has not been damaged, but the question in dispute is the amount of the damage which such property has sustained.

Claimants produced seven witnesses who testified as to the amount of damage to said property as the result of the construction of the subway and the other work in connection therewith as hereinbefore set forth. Respondent produced four witnesses who testified on the same subject. As is usual in cases of this kind, the witnesses differed widely in their estimates of the amount of damage. The highest estimate made by any witness for the claimants was $1,500.00, and the lowest estimate made by any witness for the respondent was $400.00.

Where private property is not taken, but is damaged for public use, the property owner is entitled to recover the damages which his property has sustained, and the proper measure of damages in such case is the difference between the fair cash market value of the property unaffected by the improvement, and its fair cash market value as affected by it. Brand vs. Union Elevated Co., 258 Ill. 133; Department of Public Works vs. Caldwell, 301 Ill. 242; Department of Public Works vs. McBride, 338 Ill. 347.

Where a property owner’s right of access to his property has been destroyed or interfered with, he is entitled to compensation for the damages sustained. Rigney vs. City of Chicago, 102 Ill. 64; Barnard vs. City of Chicago, 270 Ill. 27; Lydy vs. City of Chicago, 356 Ill. 230.

While the public authorities may change the grade of a street at their own pleasure, yet, when the grade is changed and sewers or drains are constructed in an imperfect manner, or where the inlets are negligently permitted to become obstructed, so that surface water cannot be carried off, and an adjoining property owner is damaged thereby, the property owner is entitled to recover for such damage. Nevins vs. City of Peoria, 41 Ill. 502; City of Elgin vs. Kimball, 90 Ill. 358; Bouillon vs. City of Greenville, 233 Ill. App. 500.

The question as to the right of a property owner to damages for property damaged but not taken as the result of a public improvement was very thoroughly considered by this court in the consolidated cases of Albert J. Moore, et al. vs. State, Nos. 1957 to 1974, where the authorities were examined and the proper elements of damage considered. In that case we held that interference with the right of access and interference with natural drainage constituted proper elements of damage.

The court viewed the premises in question in this case and upon consideration of all of the evidence in the record, we feel that the fair cash market value of claimants ’ property has been depreciated as the result of the construction of the subway in question to the extent of $700.00.

Award is therefore entered in favor of the claimants for the sum of Seven Hundred Dollars ($700.00).


author: Mr. Justice Linscott

text:
    (No. 2262
    Foreman-State Safety Vault Co., a Corporation, (Formerly the Foreman Safety Vault Co., a Corporation), Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 10, 1937.

    D’Anoona, Pflattm & Kohlsaat, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The complaint in this action alleges that on the 1st day of July, 1929, a written lease was entered into by and between the Foreman-State Safety Vault Go., and the State of Illinois, for the premises described as 1309 square feet situated in the tower on the twenty-fourth floor of the building known as The Foreman National Bank Building, located at 33 North LaSalle Street, Chicago, Illinois, for a two year term, be•ginning with the 1st day of July, 1929, for an annual rental of Five Thousand Four Hundred Nineteen and 26/100 ($5,419.26) Dollars, payable monthly at the rate of Four Hundred Fifty-One and 61/100 ($451.61) Dollars, in advance, on the first day of each and every month during the term of the lease.

The lease was signed on behalf of the State by Col. S. 0. Tripp, Acting Assistant Quartermaster General of the State of Illinois.

It is alleged that at the expiration date of the above mentioned lease, it was mutually agreed in writing to extend the same from July 1, 1931 to June 30, 1933, both inclusive, with rental at the same amount. It is further alleged that this extension agreement was executed by Col. S. O. Tripp, and approved by C. E. Black, Adjutant General of the State of Illinois. It is also alleged that the premises were duly occupied by the State of Illinois, for and during the months of March, April, May and June of the year 1933, in accordance with the terms, covenants and conditions contained in the foresaid lease and the renewal thereof, but notwithstanding the terms of the lease, the State paid a rental of Three Hundred Dollars ($300.00) per month for said months of March, April, May and June of the year 1933, thereby becoming indebted to the claimant for the sum of One Hundred Fifty-One and 61/100 ($151.61) Dollars for each of said months, and the claimant alleges that the sum of Six Hundred Six and 44/100 ($606.44)' is the balance due.

The leases were offered in evidence.

Evidence was taken by stipulation and it appears that on March 6, 1933, the claimant wrote General Black confirming a conversation that claimant had with General Black concerning the lease and a renewal thereof for 1200 square feet, being 109 square feet less than covered by the original lease. In this letter they offered to renew the lease for a two year extension at the rate of $3600.00 per annum, which was a reduction of 33%% from the then rate, and they further agreed that in consideration of this extended period, they would modify the lease then in existence so that the rate to be paid for balance of the term commencing March 1, 1933, would be at the same rate as that for the extended period, and asked for a reply within a reasonable time. The record does not disclose any reply. The Adjutant General states-that he has conferred with all lessors regarding a reduction of rent for the last four months of the biennium ending June 30, 1933, and one of the lessors was the plaintiff in this case, and the Adjutant General refers to a conference he had with claiments concerning a reduction of rent for the balance of the biennium to the annual rate of $3600.00, and he states: “This was agreed to in consideration of an extended period at the same rate for 2 years from July 1, 1933.” He further states “The credits were accordingly taken on this basis.” The General states that afterwards they agreed to extend the lease from July 1, 1933 to April 30, 1934, at the same rate, and in view of this agreement the lease was extended accordingly at the rate of $338.70 per month for this shorter period.

The original letter written to the Adjutant General and upon which they asked a reply, offered a two year extension at the rate of $3600.00 per annum, and agreed to a $300.00 monthly rental for the four months above mentioned.

No action was taken on the letter of March 6, 1933 but later the lease was extended from July 1, 1933 to April 30, 1934, on the basis of $4,064.40 per annum, payable monthly at the rate of $338.70.

It is apparent, therefore, that as a part of the consideration for such extension they would modify the then pending lease so the rental for the last four months thereof would be $300.00 monthly instead of $451.61. This offer not having been accepted by the State and a renewal having been made at a different rental than for a ten month period, the State was not entitled to a reduction in the rent for the last four months of the lease then pending.

We, therefore, hold that because the terms of the offer in the letter of March 6, 1933 which placed obligations on the respondent were not accepted by the respondent, the claimant is entitled to an additional $151.61 for each of said months, or a total of $606.44.

We, therefore, enter an award in favor of the Foreman-State Safety Vault Co., a corporation, in the sum of Six Hundred Six Dollars and Forty-Four Cents ($606.44.)


text:
    (No. 2990
    The Stotlar-Herrin Lumber Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 10, 1937.

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

delivered the opinion of the court:

In accordance with the requirements of The Business Corporation Act of this State, claimant filed in the office of the Secretary of State its annual report for the years 1934, 1935 and 1936. Each of such annual reports set forth that the corporation had a stated capital of $100,000.00. Each of such reports also set forth the paid-in surplus of the corporation which was stated to be as follows, to wit: for the years 1934 and 1935, $165,982.67; and for the year 1936, $156,308.33. In each of such years the Secretary of State assessed a franchise tax in accordance with the statute, based upon stated capital and paid-in surplus as set forth in the aforementioned annual reports, and the tax as so assessed was duly paid by the claimant.

Claimant now contends that it “placed an incorrect interpretation on the meaning of the words “paid in surplus;” that a matter of fact, said corporation had no paid-in surplus during any of such years; that the amount set forth in the several reports as paid-in surplus, was in fact earned surplus and not paid-in surplus as therein stated; that by reason of its error, claimant was required to pay the total sum of $244.14 in excess of what it should have paid for the years mentioned, and it therefore asks for a refund of the amount of the excess so paid.

The facts with reference to the amount of claimant’s paid-in surplus were peculiarly within the knowledge of the claimant. Claimant made no objection to the assessment and made no request for a hearing thereon, as it had the privilege of doing, under the terms and provisions of Section 143 of The Business Corporation Act.

The question here involved was fully considered by this court at the present term in the cases of Butter Company vs. State, No. 2500, and Western Dairy Co. vs. State, No. 2916. In those cases we held in substance as follows:

1. Where an excessive tax is paid voluntarily and with a full knowledge of the facts, it cannot be recovered;

2. When the statute provides a remedy for the taxpayer and he fails to take advantage thereof, he cannot claim that the tax was involuntarily paid; and in the latter case, as follows:—

3. Where an excessive tax is assessed by reason of the negligence or inadvertence of the taxpayer and thereafter paid by him, such payment is not made under a mistake of facts, and cannot be recovered.

Under the rule laid down in the cases referred to, the claimant is not entitled to an award.

Award is therefore denied and the case dismissed.


author: Mb. Justice Linscott

text:
    (No. 2917
    City of Shelbyville, Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 11, 1937.

    It. I. Dove, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

The original complaint in this cause was filed June 22, 1936, for the sum of $143.91, and thereafter, on July 11, 1936, an amended complaint was filed herein, and the damage claimed was $125.46.

The amended complaint alleges that the claimant is a municipal corporation, and that on or about the 15th day of December, 1930, the claimant, by its Street Commissioner, one O. W. Harris, entered into a verbal agreement with the Department of Public Works and Buildings, Division of Highways, through its representative, one C. H. Apple, the District Engineer, to the effect that the claimant was to take care of the street cleaning necessary on State Bond Issue Route No. 16, through the business district of Shelbyville, Illinois, and pursuant to that agreement, claimant was to render a statement quarterly to the Department. According to that agreement, the Clerk of the City of Shelbyville mailed a statement of services for the period from April 1, 1932 to June 30, 1933, in the amount of $125.46. The amended complaint further alleges that after the Department had received the statement, the Clerk was notified by C. H. Appel, District Engineer, that it was impossible for that Department to pay bills incurred prior to July 1, 1933 because the appropriation for the biennium prior to July 1, 1933 elapsed on September 30, 1933. This letter from the Department is attached to the amended complaint and is known as Exhibit C, and is dated February 1, 1935. The letter further stated that they were willing to schedule the invoices for cleaning from July 1, 1933 to December 31, 1934, and asked for three more copies each of the invoices covering that period.

In a letter from R. T. Cash, District Engineer, under date of July 3, 1936, it was stated that the following sums had been agreed upon but were not paid: The period from April 1 to June 30, 1932, in the sum of $29.52; July 1 to September 30,1932, in the sum of $29.52; October 1 to December 31, 1932, in the sum of $18.45; January 1 to March 31, 1933, in the sum of $18.45, and April 1 to June 30, 1933, in the sum of $29.52, or a total sum of $125.46.

The Attorney General makes no objection to the allowance of this sum.

We have repeatedly held that where it is conceded that claimant rendered services and furnished supplies to the State, and has not been paid therefor because of the lapse of appropriation out of which payment could have been made, and the amount is unquestioned, an award will be made for such services and supplies.

Journal Printing Co. vs. State, 8 C. C. R. 673.
Schreiber Lumber Co. vs. State, 8 C. C. R. 381.
Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165.

An award, therefore, in the sum of $125.46, payable to the City of Shelbyville, Illinois, is hereby made.


text:
    (No. 2092
    County of St. Clair, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 11, 1937.

    Louis P. Zerweck, for claimant.
    Otto Keener, Attorney General, and Carl Dietz and John Kasserman, Assistant Attorneys General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim was filed by St. Clair County, through its States Attorney, to collect the sum of $7,011.24, which claimant declares the State of Illinois owed it under and by virtue of a certain contract entered into on the 6th day of September. 1929, between the County of St. Clair, party of the first part, The Pennsylvania Bailroad Company, lessee of and operating the railroad of the Pittsburgh, Cincinnati, Chicago and St. Louis Bailroad Company, party of the second part, and the State of Illinois, acting by and through its Department of Public Works and Buildings, hereinafter called the State and intervener.

The county was constructing a county highway known as State Aid Boute No. 51, extending-from the Village of Caseyville, St. Clair County, Illinois, in a northeasterly direction to the north line of St. Clair County, Illinois, where it made connection with the City of Collinsville in Madison County, Illinois. The County had petitioned the Illinois Commerce Commission for authority to re-locate the crossing of the Pennsylvania Railroad, and had requested that the new crossing be improved by separating the grades of the railroad and the highway by means of an overhead crossing or viaduct. The Railroad was named defendant, the case being No. 18447,'before the Commerce Commission.

The State of Illinois through its Department of Public Works and Buildings intervened. The reason for the intervention by the State was that under the Act of the Legislature, providing for the issuance of a Hundred Million Dollars worth of bonds for the construction of a State wide system of hard roads, S. B. I. Rt. 157, was located and described as follows:

“Beginning at Cahokis and extending in a northerly direction to a point on Route No. 4, known as Sunset Hill; affording Cahokis Church, Edgemont, French Village, Caseyville, Peter’s Station, Sunset Hill and the intervening communities reasonable connections with each other.”

It was the contention of the Department of Public Works and Buildings that this re-located crossing and grade separation should serve as a portion of said State Bond Issue Route 157 when it was located and constructed, accordingly on to wit: October 25, 1929, Tri party agreement was signed and delivered by the respective parties, the State acting by and through its Department of Public Works and Buildings by H. H. Cleveland, Director and Prank T. Sheets, Superintendent of Highways. A copy of the agreement is set forth in the complaint.

In accordance with the agreement and the subsequent order entered by the Commission in case No. 18447, the County of St. Clair, advertised for and awarded contracts for the construction of this grade separation. The contracts were known officially as Section 59C-15d and Section 59D-15d.

The agreement provided that when the State should construct State Bond Issue Route 157 and incorporate the aforesaid grade separation as a part of its Route 157, the State would reimburse the County of St. Clair, to the extent of one-half of the cost of the grade separation, provided, the Pennsylvania Railroad Company would pay the remaining half of the cost. The costs of the work ordered by the Commission in the case before them, being the case mentioned herein, and agreed to by the parties in supplementary claims as forming the basis of division of costs between the railroad company, and the county and State are as follows:

Payment on contracts and costs of materials of construction, paid by the county, exclusive of engineering and overhead.$140,224.57
10% of the above item as provided for in the agreement as engineering and overhead costs to the county.............. 14,022.47
Cost of work performed by the P. C. C. & St. L. including percentage for overhead and engineering costs as provided for in the agreement................................ 2,944.56
Total costs, used as basis for division of costs...............$157,191.70
Payments made to the county by P. C. C. & St. L. and credit for work done by P. C. C. & St. L.............................. 78,595.84
Balance due county from State of Illinois, as provided for in agreement ............................................ 78,595.86
Credit allowed by Department of Public Works and Buildings, State of Illinois to the County of St. Clair, on account of work performed under the agreement.......................... 71,581.62
Balance due county from State of Illinois, account of work performed under terms of agreement...................... 7,011.24

This is shown by an itemized account of the costs marked Exhibit “B” and attached to the complaint.

The railroad company paid its one-half of the cost but the Department of Public Works and Buildings refused to pay a portion of the costs referred to under Section 3 of said tri-party agreement. That part of the contract objected to by the State, is as follows:

Section 3. The work chargeable to grade separation, the cost of which is to be borne fifty (50) per cent by the county and fifty (50) per cent by the railroad as hereinafter provided, shall comprise the following: * * *
(c) * * * An additional charge of ten (10) per cent shall be added to the actual cost of all work performed to cover cost of engineering, supervision and accounting.

Section 6 of the agreement provides:

"When the State constructed State Bond Issue Route 157 and incorporated that aforesaid grade separation as a part of its Route 157 which the State hereby agrees to do, the State will reimburse the county for an amount the county has expended on the grade separation, not’ to exceed half (½) of the cost of separation of grades, provided, further, that the railroad has paid the remaining half (½)”.

It appears that the State itself incorporated this grade separation in the State Bond Issue 157, and the railroad company paid its one-half, including the ten per cent of the costs for engineering. The Department of Public Works and Buildings has made a partial refund for its share of the cost, but refuses to include in the item of cost, the ten per cent charge for engineering, it being claimed by the Department of Public Works and Buildings that the Hundred Million Dollar Road Bond Issue Act does not allow such a refund, and under these circumstances, an award is asked in the sum of $7,011.24.

It appears to the court that the contract entered into by the State, through its proper Department, is one to be construed in its entirety, and a contract which the Department had a legal right to make and that the State is bound thereby. Costs of engineering was a necessary part of the whole contract and certainly necessary for the intelligent completion of the job, and expressly provided for in the contract. The railroad company recognized this and paid their portion, and that is the only contingency upon which the State could refuse to pay, because it is specifically provided in the contract that the State would reimburse the county for an amount the county has expended on the grade separation, not to exceed half of the cost of separation of grades, provided, further that the railroad has paid the remaining one-half.

Upon a rechecking of the figures, it appears that the amount actually owed by the State is $6,611.13 and not $7,011.24, and this is admitted and agreed to by the State’s Attorney of St. Clair County.

For the reasons aforesaid, an award in the sum of $6,611.13 in favor of the County of St. Clair is recommended.


text:
    (Nos. 2749-2750 consolidated
    Haldane Cleminson, No. 2749 and Southtown Hospital Corporation, a Corporation, No. 2750, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 11, 1937.

    Altheimer, Mayer, Woods & Smith, for claimants.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

The above cases were consolidated, as they grow out of the same statement of facts. The claim of Dr. Haldane Cleminson is for the sum of $511.00, and the number8 of that suit is 2749 and the claim of Southtown Hospital Corporation is for the sum of $388.64, said claim being numbered 2750. Each claim is duly itemized, and said claims are for services rendered to Joseph Reilly, an employee of the State.

In No. 2749 it is alleged that the claimant, being a practicing physician, on November 3, 1934, attended Joseph Reilly, an employee of the respondent in the Department of Highways. It appears that about 6:50 p. m., Reilly was engaged in repairing certain street lights and street barricades at 5200 West Fifty-fifth Street, Chicago, Illinois, in the discharge of his duties, and that while so employed, a certain automobile driven by one Frank Ackerman, a resident of Milwaukee, Wisconsin, collided with him and caused serious injuries so that it was necessary to procure immediate surgical, medical and hospital treatment for Reilly. He was taken to the- Southtown Hospital Corporation, 5701 South Wood Street, Chicago, Illinois, and was given emergency and first aid treatment.

Upon an examination of Reilly it was found that he had sustained the following injuries: a multiple compound comminuáted spiral fracture of the tibia of the lower left leg, a multiple compound comminuated fracture of the fibula, a laceration of the scalp, and divers other contusions and abrasions about the head, neck and body.

It appears that Dr. Cleminson attended Reilly from November 3, 1934, to and including August 18, 1935, both while he was confined to the Southtown Hospital and after his discharge therefrom, during which time the several fractures sustained by the said Reilly were reduced and a recovery effected under the care and treatment of claimant. A complete statement of the services rendered is included in the Bill of Particulars attached to the complaint, amounting to $511.00, and this is a reasonable charge for similar services made by physicians and surgeons in Chicago at that time.

On or about October 15, 1935, the claim was presented to the head of the Maintenance Department of the Division of Highways, District No. 10, Department of Public Works and Buildings, and claimant was advised that the claim could not be paid in the due course of administration by the Department for the reason that most of it had been incurred prior to June 30, 1935, which was the close of the biennium of said Department; that thereafter, on October 16, 1935, claimant forwarded to the Division of Highways, his itemized bill, as set forth in the Bill of Particulars, and on October 21, 1935, claimant was advised by C. W. Boss, Engineer of Maintenance, Division of Highways, Department of Public Works and Buildings, that the claim could not be paid in the due course of administration by the Department for the reason above mentioned, and he was advised to file his claim in this court.

It is set forth in the claim that Beilly had received compensation from the respondent in accordance with the provisions of the Workmen’s Compensation Act and that the payments were made without any contest.

The claim for hospital services sets up the same statement of facts, and avers that Beilly was taken to the South-town Hospital Corporation and there received said emergency treatment and other treatment and that Beilly remained a patient of the hospital from November 3, 1934 to and including December 31, 1934, during which time his injuries were treated and he was ministered to, and certain medicines, dressings, splints and other medical accessories were furnished to him by the claimant, being the hospital, and that upon his discharge, there was due and owing to the hospital for services so rendered, the sum of $388.64. This claim was duly itemized.

All of the facts are conceded, and it appears that both parties were duly diligent in the presentation of their claims.

The Compensation Act provides that an employer shall provide the necessary first aid medical and surgical services, and all necessary medical, surgical and hospital services thereafter limited, however, to that which is reasonably required to cure or relieve from the effects of the injury.

It appears from the file that the man responsible for the injury, Frank Ackerman of Milwaukee, Wisconsin, was then a representative of the Dealers Transport Company, 7001 South Chicago Avenue, Chicago, Illinois. His employer was insured with the Employee’s Liability Insurance Corporation at 175 West Jackson Boulevard, Chicago, Illinois. It appears that on December 31, 1935, Mr. Kendrick Harger, then a district engineer, attempted to collect the amounts due both claimants from the Employee’s Liability Insurance Company, and they refused to pay, claiming that under the provisions of Section 29 of the Workmen’s Compensation Act, it was the duty of the State of Illinois to pay the compensation as is presented in these claims, it then being encumbent upon the State to make recovery from the insurance company of the amounts paid by the State to the claimants. While this position is undoubtedly arbitrary, we see no other remedy, and would suggest that an appropriate proceeding be commenced against Ackerman’s employer. We feel, however, that before doing this, these claims should be paid. There is no dispute as to the facts, or that the amounts claimed are unreasonable.

In view of the Bill of Particulars filed, we hold that the amounts claimed are reasonable, and, we, therefore, recommend an award to Dr. Cleminson in the sum of $511.00, and to the Southtown Hospital Corporation, an award in the sum of $388.64.


text:
      (No. 3098
    Indian Motor Cycle Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 11, 1937.

    Herman H. Cohn, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim was filed on May 10, 1937 with the clerk of this court, and on the 17th day of May, 1937, a stipulation was entered into between the claimant and the Attorney General of the State of Illinois, wherein it is stipulated and agreed by the parties that the claimant, pursuant to an order and request on the part of the respondent, sold and delivered on June 12, 1935, to the Illinois Division of Highways Garage, Springfield, Illinois, for the use of respondent, certain motorcycle parts as itemized in the account attached to the complaint, of the reasonable value of $44.20; that at the time these articles were ordered, there was in the appropriation from which they were payable, sufficient funds to pay for the same, and that when the appropriation lapsed on September 30, 1935, there still remained an unexpended balance sufficient to pay for these articles.

It is further stipulated that claimant presented its bill for said articles to the respondent prior to the lapse of said appropriation, but due to the delay in the vouchering of the same for payment, the appropriation lapsed before a warrant therefor was issued. Consequently, the claimant has not been paid.

We have repeatedly held that:

“Where claimant has rendered services or furnished supplies to the State on the order or request of an official authorized to contract for the same, and submits a bill therefor within a reasonable time, and due to no neglect or fault on the part of claimant, same is not approved and vouchered for payment before the appropriation from! which it is payable lapses, an award for the reasonable and customary value of the services or supplies will be made where at the time the expenditure was contracted there were sufficient funds remaining in the appropriation to pay for same.”
Rock Island Sand Gravel Co. vs. State, 8 C. C. R. 165.
Individual Towel & Cabinet Service Co. vs. State, 6 C. C. R. 407.
Grant Tire Co. vs. State, 7 C. C. R. 183.

The Attorney General admits that this claim falls within the rule and should be paid.

An award, therefore, in the sum of $44.20 in favor of Indian Motor Cycle Company, a corporation, is hereby approved.


text:
    (No. 2881

    Dr. H. O. Taylor, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 11, 1937.

    Ford L. Rendleman, for claimant.
    Otto . Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The complaint was filed herein on April 9, 1936, claiming that $150.00 was due the claimant who is the coroner of Union County, Illinois, and alleging that on February 11, 1936, and prior thereto, there was located in said county, the Anna State Hospital for the Insane, to which is committed insane people of Southern Illinois.

The complaint sets forth Section 27 of Chapter 85 of the Revised Statutes of the State of Illinois, which in substance provides that in the event of a sudden or mysterious death of any inmate of any public or private hospital or asylum for the insane, a coroner’s inquest should be held, as provided by law in other cases, and that in cases where the deceased patient was an inmate of any State charitable or penal institution, and the fees for holding such inquest cannot be collected out of the estate of such deceased inmate, such fees shall be paid by the Department of Public Welfare out of the State treasury.

A motion to amend the complaint was filed on July 21, 1936, claiming that $96.00 was due the claimant, and said motion set forth that the following named persons or inmates of the Anna State Hospital suddenly and mysteriously died and inquests were held:

Date
1935 Name County Inquest Amount
Mar. 20 Phillip Nagel ..... . Inquest ........ $16.00
Mar. 27 Walter Cothern ... . Inquest ....... 16.00
Mar. 30 Olive Toler ....... . Inquest ....... 16.00
May 29 Adam Johnson____ . Inquest ....... 16.00
June 8 Wm. Crawford---- . Inquest ....... 16.00
June 15 Frank Merski ____ . Inquest ....... 16.00
$96.00

A copy of the complaint was forwarded to the Department of Public Welfare and by the Department to Dr. R. A. Goodner, managing officer at the Anna State Hospital, for investigation. Dr. Goodner submitted that the above and foregoing was a true list of inquests held by the claimant for which he had not been paid, and to which his claim should apply. Dr. Goodner did not return the complaint to the Department of Public Welfare, but sent the copy directly to the clerk of this court, with a list of inquests, with the following certificate:

“When checked with the records of the Anna State Hospital, Anna, Illinois, this invoice is found to be correct.

(Signed) R. A. Goodner, Managing Officer.”

The original complaint was amended in compliance with the report of Dr. Goodner. Nothing appears concerning the financial status of the estates of the various deceased inmates, except the statement of Dr. Goodner, the managing officer, to the effect that the invoices were correct.

The managing officer of each charitable or penal institution of this State has rather extensive executive and administrative powers and duties, and he undoubtedly had knowledge of the financial status of the inmates of his institution.

One question, however, arises as to one item of $16.00, which is for an inquest on an inmate committed from Union County. This is the county wherein the institution is located. The law prior to 1931 required the fees of the coroner for inquests held on persons whose estates were insolvent to be paid out of the county treasury. An amendment oí 1931 provided that where the deceased was a patient or inmate of a State institution, the fees should be paid by the State. We hold that this is a special statute on the subject and hold that it was not intended to make a distinction as to the fees of the coroner for holding an inquest on an inmate of a State institution committed from the county in which the institution was located. No defense to this claim has suggested itself to the court.

We, therefore, recommend an award in the sum of $96.00 in favor of the claimant, Dr. H. 0. Taylor.


author: Mr. Justice Tantis

text:
    (No. 2762
    Paul H. Boyers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 30, 1937.

    Clarence B. Davis, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant Paul H. Boyers, on the 18th day of August, 1934 was a member of Company “M”, 129th Infantry, Illinois National Guard, and on that day was quartered at Camp Grant by order of his company commander. The record discloses that while he was sleeping in a shelter tent, placed pursuant to the orders of his commanding officer, an electrical storm occurred and lightning struck the tent in which claimant was sleeping. One man was killed outright and claimant was unconscious for several hours. He was unable to see anything out of the left eye for several weeks after the accident. Dr. William Wright of Sterling, Illinois, testified that he examined plaintiff on August 20, 1934; that the left eye showed a hemorrhage in the cornea, the pupil was slightly enlarged; there was a sagging of the left side of the face showing a paralysis; also an impairment in the use of the left arm and leg. The heart was enlarged. The doctor testified to his condition at the time of the hearing on July 31, 1936 and stated that there was an absence of reflex in the entire left arm and leg and a lack of strength in both; that he has approximately total loss of the use of the left eye, and that his general physical ability is about fifty (50) per cent of normal. Immediately after the accident claimant was taken to the camp hospital and three days later was taken to Chicago with the medical corps, was treated there and was then returned to his home in Sterling. A medical board convened at Fort Sheridan, February 12, 1935, and after careful consideration of all the evidence, diagnosed the condition of Private Boyer as “Paralysis, partial, left arm and leg, involving flexor muscle group, incurred in line of duty.”

According to the record claimant has been retained in the employ of his previous employer in limited work, and is able to earn approximately fifty (50) per cent of his previous earnings. At the time of the injury he was married, and his wife and one child now eleven years of age constitute his family. His previous earnings were between Thirty ($30.00) Dollars and Thirty-four ($34.00) Dollars per week. In the absence of any definite rate of compensation for one injured while in line of duty in the military service of the State, and under the facts appearing in this record we believe that an award made in line with the provisions of the Workmen’s Compensation Act is equitable and just. Total disability under such rule would be compensated for at the rate of Four Thousand Four Hundred Fifty ($4,450.00) Dollars. An award is therefore made in favor of claimant herein on the basis of fifty (50) per cent disability, in the sum of Two Thousand Two Hundred Twenty-five ($2,225.00) Dollars. It is further ordered that this cause should be retained on the docket for such further orders as may be in accordance with law.


text:
    (No. 2244
    Fried & Bell Paper Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 30, 1937.

    Morris A. Haft, for claimant.
    Otto Kerner, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

From the stipulation of facts herein it appears that the claimant corporation was organized under the laws of this State on October 3d, 1925; that its authorized capital stock consisted of 750 shares of common stock of the par value of $100.00 per share; that the issued stock of the company at no time- exceeded $55,900.00; that the articles of incorporation set forth that the amount of capital stock actually paid in was $60,000.00; that all of claimant’s business "has been located in the State of Illinois; that during the month of February in each of the years 1929, 1930 and 1931, claimant filed with the Secretary of State its annual report as required by law, in which it failed to set forth in the space provided therefor, or elsewhere therein, the amount of its issued capital stock; that on February 22, 1932, claimant filed with the Secretary of State its annual report in which it set forth the total amount of its issued capital stock at the sum of $55,900.00 and further stated in such report that it elected to pay its franchise tax on the basis of its entire issued capital stock; that in each of the years from 1929 to 1932, inclusive, the claimant was assessed and paid a franchise tax in- the amount of $37.50, based upon its total authorized capital stock of $75,000.00; and that none of such payments was made under protest.

Claimant contends that in each of such years its franchise tax should have been based upon the total amount of its issued capital stock, to wit, $55,900.00, and that the amount of the franchise tax which should have been assessed against it in each of such years was $27.95, and asks for a refund of the amount so overpaid by it as aforesaid.

The Attorney General contends that claimant is not entitled to an award for any over-payments made by it, for the reason that payment of the tax assessed against it in each year was made voluntarily and with a full knowledge of the facts, and therefore cannot be recovered. Several other contentions are made by the Attorney General, but in the view we take of the case, it will not be necessary to consider them.

This claim having arisen prior to the adoption of The Business Corporation Act, claimant’s rights must be determined by the terms and provisions of The General Corporation Act of this State, approved June 12th, 1919, in force July 1st, 1919, as amended.

Section 112 of such Act provides that between the 1st day of February, and the 15th day of June of each year, the Secretary of State shall mail a notice in writing to each corporation against which a tax is assessed, notifying such corporation of the amount of the tax assessed against it, and that objections, if any, to such assessment will be heard by the officer making such assessment, upon request by the corporation on a date not later than the 25th day of June, etc.

Section 111 of the same Act provides that the Secretary of State shall have power to hear and determine objections within the time specified in the Act, and after hearing, to change or modify any assessment.

Substantially the same provisions are incorporated in the present Business Corporation Act.

There is nothing in the record to indicate that the claimant made any objection to the tax assessed against it, or that it requested a hearing thereon.

In the case of Butler Co. vs. State, No. 2500, decided at the present term of this court, after a comprehensive review of the authorities, we held in effect, as follows:

1. Where an illegal or excessive tax is paid voluntarily and with the full knowledge of all the facts, it cannot be recovered.

2. Where such tax is paid under a mistake of fact, it is considered as having been involuntarily paid, and may be recovered.

3.. Where such tax is paid under a mistake of law, it may not be recovered.

4. Where a franchise tax is erroneously assessed and no objection is made thereto, and no request is made for a hearing thereon in accordance with the statute, and the tax is paid, such payment constituted a voluntary payment within the legal meaning of those words.

In that case the court, in conclusion, said:

"From the record in this case it appears that claimant made no objection to the tax assessed against it and made no request for a hearing thereon, in accordance with the statute; also that the tax in question was paid without protest, and with a full knowledge of all the facts. Under the decisions of our courts, such payment constituted a voluntary payment within the legal meaning of those words, and therefore the claimant is not entitled to have the same refunded.”

What we said in the Butler Company case applies with special force to the facts in this case.

Furthermore, in the case of Western Dairy Co. vs. State, No. 2916, also decided at the present term of this court, we held that where an illegal or excessive tax is imposed by reason of the negligence or inadvertence of the taxpayer, and thereafter paid by him, such payment is not made under a mistake of fact and cannot be recovered.

The- rule laid down in the Butler Company case and the Western Dairy Co. case was thereafter approved in the case of Stotlar-Herrin Lumber Co. vs. State, No. 2990, and is decisive of this case.

Award denied. Case dismissed.


text:
    (No. 2687
    Charles A. Jackson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 30, 1937.

    Claimant, pro se.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim was filed pro se June 18, 1935, and is for the sum of $16.00. It is charged that during the month of August, 1932, claimant was coroner of Randolph County; that he was summoned to the Southern Illinois Penitentiary at Menard for the purpose of holding an inquest on August 14, 1932, on the body of John Parks, an inmate of said institution, who had been murdered.

The claim was not filed in time for the appropriation then made for the then biennium, and when the claim was presented, the appropriation had lapsed.

The file contains a letter under date of June 29, 1935, from A. L. Bowen, Director of the Department of Public Welfare, wherein he states:

“Mr. Jackson, who was coroner of Randolph County in August, 1932, has set up the correct statement of the facts.
“Mr. Jackson’s claim for $16.00 is his fee in, the inquest over the body of John Parks, a prisoner at the Menard Branch of the Illinois State Penitentiary, and is a valid claim.”

We take it that the last clause of Mr. Bowen’s letter to the effect that this claim “is a valid claim” is the result of a proper investigation made by Mr. Bowen, and that the deceased, John Parks left no estate out of which the coroner’s fee could be paid.

Section 26 of Chapter 53 of our statute provides that such fee shall be certified by the court and when the same cannot be collected out of the estate of the deceased * * *, in the case of inmates of any State charitable or penal institution, by the Department of Public Welfare, out of the State treasury.

We have repeatedly held that where it appears that claimant performed services required by law but before application for payment was made the appropriation lapsed, and it is conceded by the proper Department that the State is indebted to claimant in the amount claimed, an award for same will be made.

Ruediger vs. State, 7 C. C. R. 11.
Miller vs. State, 7 C. C. R. 251.

An award is therefore made in the sum of $16.00.


author: Me: Chief Justice Hollebich

text:
    (No. 2571
    Lake Zurich Milk Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 30, 1937.

    Michael, B. Boderick, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me: Chief Justice Hollebich

delivered the opinion of the court:

Claimant filed its complaint herein on January 8th, 1935, and alleges therein substantially as follows:

That on or about June 20th, 1933 claimant entered into a written contract with Chicago State Hospital at Dunning, in which it agreed to supply said hospital with milk and cream during the months of July, August and September, 1933, at the following prices, to wit: 12%c per gallon for milk, and 10%c per pint for cream.

That on July 28th, 1933 an order was issued by the Secretary of Agriculture of the United States establishing a s'o-called Milk Code in the Chicago area, effective August 1st, 1933, which code purported to fix the re-sale price of milk in that area at 30c per gallon.

That prior to the establishment of such milk code, claimant paid the farmer $1.45 per cwt. for Class I milk, and 84c for surplus milk, and delivered to the respondent nothing but surplus milk; that after the code became effective, claimant was required to pay the farmer $1.75 for Class I milk, and was also required to deliver Class I milk to the hospital; that by reason thereof, it lost 91c per cwt. on all milk delivered to the hospital during the months of August and September, 1933, to wit, 307,275 pounds:

That claimant delivered 18,000 gallons of milk to the respondent during the month of August, and 17,550 gallons during the month of September, and on account of the requirements of such milk code, sustained a loss of 12%c per gallon on the amount so delivered.

The Attorney General has entered a motion to dismiss the case for the reason that there is nothing in the complaint to indicate that the milk which was delivered by the claimant to the respondent was not paid for at the contract price; that having paid the contract price therefor, respondent is discharged from any further liability to the claimant; in short, that claimant is not entitled to recover anything whatsoever over and above the contract price.

Section 41 of The Uniform Sales Act of this State, Bar Association Revised Statutes, 1935, Chap. 121a, Par. 44, provides as follows:

“It is the duty of the seller to deliver the goods and of the buyer to accept and pay for them, in accordance with the terms of the contract to sell or sale.”

In this case the seller delivered the goods and the buyer paid for the same in accordance with the contract of sale. The complaint does not aver, nor does the proof show any provisions of such contract which purport to cover a contingency such as arose in this case. If it was intended to provide against any such contingencies, adequate provision therefor should have been made in the contract.

The case of Thomson vs. Thomson, 315 Ill. 521, involved contracts made on May 23d and June 12th, 1917, for July delivery of 20,000 bushels of corn. On account of the exigencies of war demands, it would have been extremely difficult if not impossible for the seller to deliver the corn at the time specified in the contracts. In that case, however, the purchases were made in accordance with and subject to the rules, regulations and customs of the Board of Trade of the City of Chicago. On July 5th, 1917 the Board of Trade adopted a resolution fixing a price which should be the basis of settlement for all contracts made prior to that date; and the Supreme Court held that under the provisions of the purchase agreement, settlement was required to be made on the basis of the price fixed by resolution of the Board of Trade. In considering the question as to the effect of a contract for purchase or sale containing no such provisions, the Supreme Court, on page 526, said:

“One who contracts cannot be relieved from the obligation of his contract which binds him to perform his agreement, and he cannot be deprived of the benefit of his lawful contract, and the rights which it confers upon him, without his consent, and in every case the question is what the contract was and what obligation it created. A party to a contract has no right to impose a condition not provided for in the contract itself. (Illinois Con ference Female College vs. Cooper, 25 Ill. 148.) Neither would it be any defense in such case that by reason of the declaration of war against Germany on April 6, 1917, and the unusual conditions resulting, and sure to result in the future, in abnormally high prices, which would have enabled purchasers to compel sellers to settle their contracts at extortionate prices, the Board of Trade, by resolution of the board of directors, provided that after July 5, 1917, settlement of the contract in question should be made in the manner in which they were made. Neither would1 it be any defense to a suit for damages resulting from a breach of such contract that a compliance with such contract would entail great hardship upon defendants, or that by reason of the exigencies of the World War the fulfillment of the contract would be rendered extremely difficult, or even impossible, where defendant has failed to limit in the contract his liability in respect to' such contingencies. Illinois Central Railroad vs. McClellan, 54 Ill. 58; Illinois Central Railroad Co. vs. Cobb, Christy & Co., 64 id. 128; Toledo, Wabash and Western Railway Co. vs. Lockhart, 71 id. 627; Phelps vs. Illinois Central Railroad Co., 94 id. 548.”

The case of Thomson vs. Thomson was cited with approval in the case of Green vs. Ashland State Bank, 346 Ill. 174-184, and is decisive of the question here involved.

Under the law as above set forth, plaintiff has no right to recover under the facts set forth in the complaint, and the motion of the Attorney General to dismiss the case must be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 2226
    Monarch Fire Insurance Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 30, 1937.

    Harlington Wood, for claimant.
    Otto Keener, . Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Under a stipulation of facts filed herein, it appears that on the 15th day of June, 1933 the Superintendent of Insurance of Illinois assessed the claimant under “An Act in Relation to the Taxation of Non-Resident Corporations, Etc. For the Privilege of doing an Insurance Business in this State,” approved June 28, 1919, the amount of $5,965.13, being two and one-half (2%) per cent tax on $238,605.16 gross premiums received in Illinois during the year ending December 31,1932, less local tax paid in 1932 amounting to $694.64 and less Fire Department taxes paid in 1932 of $2,874.55, making a total deduction of $3,569.19, or a net balance of $2,395.94 paid on June 13,1933. Claimant seeks a refund on account of personal property taxes paid by its agents in Chicago in 1932, amounting to $799.10 and $104.74, or a total of $903.84,. vouchers for such payments not having been submitted for credit against the Privilege Tax assessed.

Plaintiff has a similar claim pending in the case of Monarch Fire Insurance Company vs. State, C. of C. No. 2227, for a refund of $610.58 for over-payments alleged to have been made on the 14th day of May, 1932, and plaintiff has confused the latter claim somewhat in its Statement, Brief and Argument in the instant case, hut regardless of the confusion as to amounts, the claim in each case is based upon a payment made under a purported mistake of facts; claimant alleges that by oversight it neglected as b matter of fact to procure a proper credit to apply upon the Privilege Tax which it might have done under the law; that such mistake of fact was caused by the forgetfulness or oversight of claimant; that such omission amounted to a mistake of fact and that claimant therefore is entitled, to an award. Respondent contends that the mistake was not in the payment of the Franchise Tax which was legally due, and that if any mistake was made it was entirely that of the tax-payer itself, and was one that arose entirely by virtue of error and omission in its own office, for which no refund can be legally claimed.

In support of its claim plaintiff cites Moorman Manufacturing Co. vs. State, 8 C. C. R. 106, in which the following statement is quoted:

“As a general rule a payment made under a mistake of fact, and which the payor was under no legal obligation to make, may be recovered back * * * Where one by mistake of fact pays more than is due upon a debt or obligation, he may recover the over-payment * * * where money is paid to another under influence of a mistake of fact, that is on the mistaken supposition of the existence of a specific fact which would entitle the other to the money, and the money would not have been paid if it had been known to the payor that the fact was otherwise, it may be recovered.”

In the instant case there was a legal obligation by statute requiring claimant to pay a Franchise Tax. It was further its duty to submit a proper statement to the Secretary of State’s Office, upon which to base such payment. The details of its accounts and the credits to which it was entitled by law were known to the payor. The fact that some clerical employee failed to make up a proper report to send to the Secretary of State is not such a mistake of fact as to bring the claim within the exception to the rule of the well settled law of this State “That a tax which is paid voluntarily and not under duress or compulsion cannot be recovered back.” ( Oppenheimer & Co. vs. State, 6 C. C. R. 465.)

“The payment of a tax will be deemed voluntary where it is paid with full knowledge of the facts and in the belief that such payment is legal. Taxes so paid cannot be recovered even though they are illegal, in the absence of a statute authorizing such recovery.”

Richardson Lubricating Co. vs. Kinney, 337 Ill. 122.

The cases of Anderson vs. State, 8 C. C. R. 157 and Fowler vs. State, 8 C. C. R. 160, cited by claimant, are not considered as supporting its claim, as in both those cases the mistake of fact was mutual and was the fault of respondent.

Notwithstanding the views expressed in the case of Firemen’s Insurance Company, etc. vs. State, 2 C. C. R. 220, the court believes that the correct expression as to the responsibility of the State and the right of claimant herein are correctly expressed in Seiders, etc. vs. State, 7 C. C. R. 9, i. e., where it appears that the Secretary of State has computed a Franchise Tax on information furnished by payor and has followed the directions of the Legislature in computing and collecting such tax, and a claimant thereafter, because of an error in the records of his own office and in the information furnished to the Secretary of State, claims a payment has been made in excess of the amount otherwise legally due, and such excess payment is in no way shown to be the fault of the Secretary of State or the State of Illinois, the court is of the opinion that no refund is due. As a matter of public policy, the various State officers and taxing bodies should be able to rely upon the information furnished by those applying for Franchise licenses, and where a tax or license fee is legally due and the applicant submits erroneous information and thereafter voluntarily pays the license fee or tax that has been correctly computed from such information, no sufficient authority of law exists in the opinion of the court to justify a refund on any portion thereof. An award is denied and claim dismissed.