text:
    (No. 3570
    Prothero & Willis, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 11, 1941.

    Claimants, pro se.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimants ask for an award in the amount of Thirty-five Dollars and Fifty Cents ($35.50) for eight and one-half hours’ use of tractor at Three Dollars ($3.00) per hour, and five hours’ use of truck at Two Dollars ($2.00) per hour, in connection with the removal to the grounds of the Illinois Soldiers & Sailors’ Children’s School at Normal, Illinois, of certain shrubbery and nursery stock which had been donated to the institution. The tractor was used on May 6, 1939 and the truck on May 12, 1939, but the bill for the use thereof was not presented to the institution until a year later, at which time payment could not be made by the institution authorities for the reason that the appropriation out of which the same was payable lapsed September 30, 1939.

The record does not indicate who ordered the hiring of the tractor and truck, but apparently the same were used with the approval of the Managing Officer of the institution.

There is no question but what the services were rendered as claimed; that the same were approved by the Managing Officer of the institution; that the amount of the claim is reasonable; and that there has been no unreasonable delay on the part of the claimant in presenting its claim.

We have held in numerous cases that under such circumstances the claimant is entitled to an award. Rock Island Sand and Gravel Co. vs. State, 8 C. C. R. 165; Indian Motor cycle Co. vs. State, 9 C. C. R. 526; Wabash Telephone Co. vs. State, 10 C. C. R. 211.

Award is therefore entered in favor of the claimant, Prothero and Willis, for the sum of Thirty-five Dollars and Fifty Cents ($35.50).


source: Caselaw Access Project

author: Me. Chief Justice Hollerich

license: Public Domain

text:
    (No. 3564
    Josephine VonHatten, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 11, 1941.

    Claimant, pro se.
    Geoege F. Babeett, Attorney General; Glenn A. Tbevob, Assistant Attorney General, for respondent.
   Me. Chief Justice Hollerich

delivered the opinion of the court;

Between August 16, 1940, and October 4, 1940, Alvin Von Hatten was employed as a patrolman’s first helper in the maintenance branch of the Division of Highways of the respondent. On the last mentioned date, while assisting in resurfacing the floor of a bridge known as the Sweigler Bridge, located on U. S. Route No. 50 near Shattuck, Hlinois, a kettle of heated asphalt tipped forward and covered the body of said Alvin VonHatten below the chest, inflicting burns from which he died the same day.

Said Alvin VonHatten left him surviving the claimant, Josephine VonHatten, his widow, and James VonHatten, aged five years, his only child, both of whom were totally dependent upon him for their support.

Although Alvin VonHatten had been in the employ of the respondent as patrolman’s first helper but forty-two (42) days, the evidence shows that persons of the same class in the same employment and same location worked more than three hundred (300) days a year, on an average of eight (8) hours a day, and were paid sixty cents (60c) per hour.

Upon a consideration of the facts in the record we find as follows:

1. That said Alvin VonHatten and the respondent were on the 4th day of October, A. D. 1940, operating under the provisions of the Workmen’s Compensation Act of this State; that on said date said Alvin VonHatten sustained accidental injuries which arose out of and in the course of his employment and which resulted in his death on the same date; that notice of said accident was given to said respondent and claim for compensation on account thereof was made- within the time required by the provisions of such Act; that the earnings of said Alvin VonHatten during the year next preceding the injury, computed in accordance with the provisions of Section Ten (10) of the Workmen’s Compensation-Act, were Fourteen Hundred Forty Dollars ($1,440.00), and his average weekly wage was Twenty-seven Dollars and Sixty-nine Cents ($27.69); that the necessary first aid, medical and hospital services were provided by the respondent.

2. That said Alvin VonHatten left him surviving the claimant, Josephine VonHatten, his widow, and James Von Hatten, his only child, aged five years, both of whom were totally and equally dependent upon the earnings of said Alvin VonHatten for their support and maintenance.

3. That under the provisions of Section 7-a and Section 7-h-3 of the Workmen’s Compensation Act, the amount of compensation to be paid by the respondent on account of the death of said Alvin VonHatten is Forty-four Hundred Fifty Dollars ($4,450.00); that under the provisions of Sections 7 and 8, such compensation is payable in weekly installments of Sixteen Dollars and Fifty Cents ($16.50) per week, commencing October 5, 1940.

, 4. That the share of such compensation which otherwise would be payable to said James VonHatten should be paid to his mother, Josephine VonHatten, for the support of said child.

5. That the amount of compensation which has accrued from October 5, 1940, to February 8, 1941, to wit, eighteen (18) weeks at $16.50 per week, is Two Hundred Ninety-seven Dollars ($297.00).

It is therefore hereby ordered as follows:

A) That the share of such compensation which would otherwise would be payable to said James VonHatten shall be paid to Ms mother, Josephine VonHatten, for the support of said child.

B) That an award be and the same is hereby entered in favor of the claimant, JosepMne VonHatten, for the sum of Forty-four Hundred Fifty Dollars ($4,450.00), payable as follows, to wit:

The sum of Two Hundred Ninety-seven Dollars ($297.00), being the amount of compensation which has accrued from October 5,1940, to February 8,1941, shall be paid forthwith.

The balance of such compensation, to wit, the sum of Forty-one Hundred Fifty-three Dollars ($4,153.00), shall be paid in Two Hundred Fifty-one (251) weekly payments of Sixteen Dollars and Fifty Cents ($16.50), commencing February 15, 1941, and one final payment of Eleven Dollars and Fifty Cents ($11.50).

This award, being subject to the provisions of an Act entitled “An Act making an Appropriation to Pay Compensation Claims of State Employees and providing for the Method of Payment Thereof” (Illinois Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain MoMes until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly, ’ ’ approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.


author: Mr. Chief Justice Hollerich

text:
    (No. 3076
    Ross White, Andy Fris, Ted Dockerty, Ben Janchewski, John Saiz and Stanley Blakey, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 11, 1941.

    George W. Dowell and Carl Preihs, for claimants.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

The claimants, Ross White, Andy Fris, Ted Dockerty, • Ben Janchewski, John Saiz and Stanley Blakey, filed their joint complaint in this court on the 5th day of April, A. D. 1937, and allege therein in substance that for a long time-prior to and on the 4th day of August, A. D. 1935, the respondent was the owner of and possessed of a certain bridge-known as North Fork Bridge, which was a part of S. B. I. Route No. 2 and was located about one and one-half (1%) miles north of the Village of Patoka; that the respondent through its Department of Public Works and Buildings and its Chief Highway Engineer carelessly and negligently constructed such bridge of a width of sixteen (16) feet eight (8) inches, being one (1) foot four (4) inches less than the concrete pavement on either side thereof; that such condition was dangerous to automobiles and trucks meeting or passing on such bridge; that on said 4th day of August, A. D. 1935, about eleven o ’clock p. m., the claimant, Ross White, was driving his truck in a southerly direction on said S. B. I. Route No. 2 over said bridge; that the other claimants in this proceeding were riding as passengers in said truck; that when said truck was near the south end of said bridge, another truck drove upon said bridge from the south and sideswiped the truck in which the claimants were riding, whereby said last mentioned truck was damaged and each of the claimants sustained per-. sonal injuries; that the claimants were in the exercise of all due care and caution, and that said accident occurred as the result of the carelessness and negligence of the respondent in constructing and maintaining said bridge of the width of one (1) foot four (4) inches less than the concrete pavement at either end of said bridge; and that each of said claimants asks for an award in the amount of Two Thousand Dollars ($2,000.00).

The respondent has filed a motion to dismiss the complaint for the reason that it does not set forth a claim which the State of Illinois as a sovereign commonwealth should discharge and pay.

We have repeatedly held that in the construction and maintenance of its system of State highways the State is acting in a governmental capacity. Spurrell vs. State, 10 C. C. R. 74; Tivnan vs. State, 9 C. C. R. 495; McGready vs. State, 9 C. C. R. 63; Baumgart vs. State, 8 C. C. R. 220; Bucholz vs. State, 7 C. C. R. 241; Braun vs. State, 6 C. C. R. 104.

It has been uniformly held in this State that in the exercise of its governmental functions the State is not liable for the negligence of its agents or employees, in the absence of a statute making it so liable. Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234; City of Chicago vs. Williams, 182 Ill. 135; Royal vs. State, 9 C. C. R. 67; Ryan vs. State, 8 C. C. R. 361; Wilson vs. State, 8 C. C. R. 72; James H. Wolfe, et al. vs. State, 10 C. C. R. 324; 25 R. C. L. p. 407, sec. 43.

Under the authorities above cited the motion of the respondent must be allowed.

Motion to dismiss allowed. Case dismissed.


author: Mr. Justice Linscott

text:
    (No. 2957
    L. Balkin Builder, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1939.

      Rehearing denied) February 13, 1941.

    D ’Ancona, Pflaum & Kohlsaat, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant filed its complaint with the Clerk of this court on August 26, 1936, and alleged that on or about the 8th day of October, 1935, the respondent, through its proper officers awarded to the claimant, a certain written contract for the construction of a public improvement known as State Bond Issue, Boute 50, Section 101 — SB—NBH 1, which contract was duly accepted by the claimant, a copy thereof being attached to the complaint; that in pursuance of said contract, the claimant performed and completed all of the work as was required to be done by said contract and the plans, specifications and amendments thereto; that the respondent, acting-through its proper officers, on or about the 15th day of April, 1936, requested and directed the claimant to perform and complete additional and extra work for the public improvement as aforesaid, which extra and additional work was not required to be performed according to the terms of the contract, plans, specifications and amendments; that said extra and additional work consisted of excavating and backfilling- a crib wall, and the furnishing of an asphalt plank together with the pumping and drainage of water from said public improvement; that thereafter, pursuant to the authorization, direction and in accordance with' the special instance and request of the respondent, through its proper officers, the claimant excavated and backfilled the said crib wall, furnished and completed the asphalt plank, and pumped and drained the water from said public improvement; that the fair, reasonable and customary charge for said additional and extra work was the sum of $6,022.57.

The common counts are attached under Paragraph 4.

Claimant further charges that there is due and owing to the claimant from the respondent the said sum of $6,022.57, which claim has been presented to the Department of Public Works and Buildings, Division of Highways of the State of Hlinois, but the State has failed and refused to pay that sum.

An affidavit is attached to the complaint, signed by L. Balkin, president of L. Balkin Builders, Inc. In this affidavit he says he has full and complete knowledge of all the facts and that the facts contained in the complaint are true to the best of his knowledge and that the State of Illinois is indebted to the claimant in the sum hereinabove mentioned.

A copy of the contract attached to the complaint is as follows::

“Contract
1. This Agreement, made and concluded this 8th day of October, 1934, between the State of Illinois, acting by and through the Department of Public Works and Buildings, known as the party of the first part, and L. Balkin, Bldr. Inc. his/their executors, administrators, successors or assigns, known as the party of the second part.
2. Witnesseth : That for and in consideration of the payments and agreements mentioned in the Proposal hereto attached, to be made and performed by the party of the first part, and according to the terms expressed in the Bond referring to these presents, the party of the second part agrees with said party of the first part at his/their own proper cost and expense to do all the work, furnish all materials and all labor necessary to complete the work in accordance with the plans and specifications hereinafter described, and in full compliance with all of the terms of this agreement and the requirements of the Engineer under it.
3. And it is also understood and agreed that the Notice to Contractors, Special Provisions, Proposal, and Contract Bond, hereto attached, and the Plans for State Bond Issue Route No. 50 Federal Aid Project No. 141D-NRH, Section 101SBNRH-1, in Cook County, dated March 22, 1934, and the "Standard Specifications for Road and Bridge Construction,” adopted by said Department January 2, 1932, are all essential documents of this contract and are a part hereof.
4. In Witness Whereof, The said parties have executed these presents on the date above mentioned.
The State of Illinois,
By the Department of Public Works and Buildings
By Robert Kxngery, ' Director.
Attest: Party of the First Part.
Ernest Lieberman, (If a corporation)
Acting Superintendent of Highways.
Corporate
Name L. Balkin Builder, Inc.
By L. Balkin, President.
Attest: Party of the Second Part.
H. B. Balkin, Secretary. (If a co-partnership)
(Seal) (Seal)
(Corporate Seal)
.............................(Seal)
Partners doing business under the firm name of
.............................( Seal) ”

The above, consisting of four pages and the signatures thereto, is all that is attached to the complaint, but it is obvious that there are other writings, consisting of plans, specifications and special provisions that are made a part of the contract by special reference, but not copied therein.

The respondent made a motion to dismiss and filed this motion on December 6, 1938. The evidence was filed in this case on November 3, 1938. As grounds for the motion to dismiss it is contended that the claimant has no claim against the State of Illinois arising under the contract referred to in the complaint for reasons not appearing upon the face of claimant’s complaint but appearing from an affidavit attached to the motion to dismiss in support of said motion; that it appears that on October 1, 1934, the claimant made and executed an assignment to the Duffin Iron Company of all its right, title and interest to the sum of $33,986.94, and in and to any and all monies owing, payable and thereafter becoming due or payable to the claimant from the State of Illinois under the contract referred to in the complaint. The affidavit attached to the motion to dismiss was made by M. K. Lingle, Engineer of Claims, Division of Highways, Department of' Public Works and Buildings, State of Illinois, and' he states that there is attached to his affidavit, a true and correct copy of an instrument executed by L. Balkin Builder, Inc., under-date of October 1, 1934, and that the contract mentioned and referred to therein is the same contract mentioned and referred to in the complaint filed in the Court of Claims in this case; that said instrument is in words and figures as follows,, to wit:

“Assignment
"For and in consideration of the sum of One Dollar ($1.00) and other good and valuable considerations to the undersigned in hand paid, receipt whereof is hereby acknowledged, the undersigned, L. Balkin Builder, Inc., does hereby assign, transfer, set over and convey unto Duffin Iron Company, an Illinois corporation, all of its right, title and interest in and to the sum of Thirty-three Thousand Nine Hundred Eighty-six and 94/100 Dollars ($33,986.94), and in and to any and all moneys owing, payable or hereafter becoming due or payable to the undersigned, L. Balkin Builder,' Inc. from the State of Illinois, Department of Public Works and Buildings, Division of Highways, under the contract, State No. 5710, entered into by the State of Illinois, acting through the Department of Public Works and Buildings, with the undersigned L. Balkin Builder, Inc. for the construction of the work designated as State Bond Issue Route 50, Project 141D-NRH, Section 101-SB-NRH-l, Cook County, Illinois, including the construction of one plate girder railroad subway structure, one span, at 70' 9", near the intersection of Cicero Avenue and 158th Street in Oak Forest, reference to which contract hereby made a part hereof is hereby made for a full statement of the terms thereof. i
“The undersigned, does hereby expressly authorize and empower the said Duffin Iron Company to collect and receipt upon said contract from the said State of Illinois in the place and stead of the undersigned the said sum of Thirty-three Thousand Nine Hundred Eighty-six and 94/100 Dollars ($33,986.94) and any other moneys owing, payable or hereafter becoming due or payable to the undersigned under said contract, and to take all necessary proceedings for the collection thereof, and to execute and deliver all proper receipts and vouchers therefor the same as the undersigned might or could do were this assignment not made. The undersigned hereby expressly represents that it has full power and authority to execute this assignment; that the said sum of money is to become due the undersigned from the said State of Illinois by reason of the said contract; that no assignment or transfer of the moneys to become due upon said contract other than the assignment embodied in this instrument has been executed by the undersigned; and the said State of Illinois, Department of Public Works and Buildings, Division of Highways, and each and every of them are hereby authorized and directed to pay to the said Duffin Iron Company the said sums of money above mentioned.
In Witness Whereof the undersigned has caused these presents to be signed at Chicago, Illinois, by its corporate officers, and its corporate seal to be affixed thereto, both being duly authorized so to do pursuant to resolutions unanimously adopted by the Board of Directors of the undersigned, this first day of October, 1934.
L. Balkin Builder, Inc.,
(Seal) By (Signed) L. Balkin, Pres.
Attest:
(Signed) H. B. Balkin, Sec.
I, Joseph Harrow, a Notary Public in and for the County and State aforesaid, do hereby certify that Louis Balkin, personally known to me to be the President, and H. B. Balkin personally known to me to be the Secretary of L. Balkin Builder, Inc., an Illinois corporation, personally known to me to be the President and Secretary respectively of said L. Balkin Builder, Inc., appeared before me this day in person and severally acknowledged that they signed the said instrument and caused the corporate seal of said corporation to be affixed thereto, as their free and voluntary act individually and as such President and Secretary respectively, and as the free and voluntary act of said corporation, for the uses and purposes therein set forth, and that the execution and delivery of said instrument was duly authorized by them asi such President and Secretary respectively, and duly authorized ■by the unanimous resolution of the Board of Directors of said L. Balkin Building, Inc.
Given: under my hand and Notarial seal, this 1st day of October, 1934.
(Seal)
(Signed) Joseph Harrow, Notary Public.”

In paragraph 5 of the complaint it is alleged that “no other1 persons, firm or corporation has any title or interest in and to the said claim or any part thereof, and that the claimant is still the sole owner and claimer of said claim.” Claimant argues that this motion comes too late to be given consideration by this court because it was not filed for more than two, years after the filing of the claim herein. While this court has no such rule governing the- same, the rules of this court do make the Illinois Practice Act a part of the rules. The claimant says that no contention is being made that the claimant did not assign to the Duffin Iron Company the sum of $33,986.94, together with any and all other moneys owing, payable or thereafter become due or payable to the claimant under the contract, but claimant points out and argues that the amount now being claimed by the claimant is not for moneys due and payable under the contract, but for moneys due and payable for extra work, labor and material furnished and performed by the claimant, not under the contract. Claimant argues that the motion should not be considered by the court because it was not presented in due time and therefore .the motion should be stricken from the records. Another ground urged by the claimant is that the motion is not well founded, either in point of fact or in point of law; that while it is true that the claimant did under date of October 1, 1934, execute and deliver an assignment to the Duffin Iron Company, it did not assign this particular claim which arose out of special work.

As we view this matter, the only real contention between the parties hereto is whether or not the work, labor and material which the claimant admittedly furnished, was included in the orginal contract between the parties, or was, strictly speaking, extra work, the claimant taking the position that it was strictly extra work, whereas the respondent claims that the original contract required the claimant to.do the work.

Under the view that we take of the case, it will be unnecessary to pass upon the motion of the State to dismiss on the grounds that an assignment of claimant’s interest had been made. All the time the claimant knew that the claim had been assigned, and secondly, it charged in its complaint that no other person, firm or corporation had any right, title or interest in and to this claim, because it necessarily goes back as-to what constituted the extra work herein.

This project was located in the general vicinity of 158th Street and Cicero Avenue in the Village of Oak Forest. It appears from the files that the structure was designed by the Chicago, Rock Island and Pacific Railway; that the letting, award, engineering supervision, estimates and payments thereof and final payments were made by the State of Illinois, Department of Public Works and Buildings, Division of Highways. The letting of said project was held on April 18, 1934, and the claimant was determined the low bidder. The contract was awarded on August 15, 1934, at the bid price of $33,986.94, and according to that part of the complaint referred to as the contract and attached to the complaint the claimant agreed at its “own proper cost and expense to do all the work, furnish all materials and all labor necessary to complete the work in accordance with the plans and specifications hereinafter described, and in full compliance with all of the terms of this agreement and the requirements of the Engineer under it. And it also understood and agreed that the Notice to Contractors, Special Provisions, Proposal, and contract Bond, hereto attached, and the plans for State Bond Issue Route No. 50 Federal Aid Project No. 141D-NRH, Section 101SBNRH-1, in Cook County, dated March 22, 1934, and the “Standard Specifications for Road and Bridge Construction,” adopted by said Department January 2, 1932, are all essential documents of this contract and are a part hereof. ’ ’

It is contended that the additional or extra work performed by the claimant and the additional or extra materials furnished by the claimant may generally be classified .under the three following classifications:

1. Drainage and pumping........................................$3,852.91
2. Excavating and backfilling behind crib walls:
Excavating ...................................... $312.05
Backfilling ....................................... 550.69
- 862.74
3. Asphalt planking .........................-.................... 1,308.92
or a total of......................................................$6,024.57

and an award is sought upon the basis that the three items above mentioned constitute extra work.

The Standard Specifications for Road and Bridge Construction, adopted January 2, 1932, the revisions of and additions to the Standard Specifications, adopted March 27, 1934, Special Provisions, General Plans for Proposed Under-grade Crossing, and the Notice to Contractors, etc. were all made a part of the contract. The contract is quite lengthy, consisting of some tMry-five pages, and we find therein, the following:

“4. The undersigned further declares that he has carefully examined the proposal, plans, specifications, form of contract, and contract bond, and special provisions (if any), and that he has inspected in detail the site of the proposed work, and that he has familiarized himself with all of the local conditions affecting the contract and the detailed requirements of construction, and understands that in making this proposal he waives all right to plead any misunderstanding regarding the same.
5. The undersigned further understands and agrees that if this proposal is accepted he is to furnish and provide all necessary machinery, tools, apparatus and other means of construction, and to do all of the work, and to furnish all of the materials specified in the contract, except such materials as are to be furnished by the Department, in the manner and at the time therein prescribed, and in accordance with the requirements therein set forth.
6. The undersigned declares that he understands that the quantities mentioned are approximate only and that they are subject to increase or decrease; that he will take in full payment therefor the amount of the summation of the actual quantities, as finally determined, multiplied by the unit prices shown in the schedule of prices contained herein.”

The first claim for extra work is classified as “Drainage and pumping” and the amount asked for is $3852.91. Section 21 of Claimant’s Exhibit “IB” provides as follows:

“The Contractor shall provide and maintain proper drainage for the excavation as the work progresses so that all rain water and surface drainage may be diverted, thus permitting the excavation to be carried on in dry material. Whenever water is encountered the same shall be removed by bailing or pumping, great care being taken at all times, that the surrounding soil is not disturbed or moved.”

This provision clearly provides for the bailing or pumping of water and proper drainage for the excavation of any work, and under the provisions of Section 4 of the Standard Specifications for Road and Bridge Construction hereinabove quoted, we fail to see how there could have been any misapprehension in this regard.

The next item claimed is for excavating and backfilling behind crib walls. The charge for excavating is fixed at $312.05 and the charge for backfilling* at $550.69. Section 22 of Claimant’s Exhibit “IB” provides as follows:

“All excavations shall be made to the full dimensions and depths shown on the plans or as directed by the Engineer. If the foundation is rock it shall be cleaned of all shale and loose stone, leveled and finished as may be directed by the Engineer.”

No contention is made that the Engineer directed any excavations not provided under the Plans and Specifications. Sections 27, 28 and 29 of Claimant’s Exhibit “IB” are as follows:

“27. Excavation around all retaining walls, abutments and wings shall be backfilled to the surface of the ground adjoining with material which in the opinion of the Engineer is suitable for that purpose. When required by the Engineer, the backfill shall be deposited in layers not more than eight (8) inches deep and each layer thoroughly tamped and wetted down.
“28. The area of excavation shall be kept free from water, if practicable, until the concrete or masonry has been carried above the water level.
“29. The Railway Company shall furnish the material for the backfill behind the abutments and shall place the said: material in position.”

Then follows a provision concerning the part to be excavated by the Railway Company, under Section 30 of this same exhibit, which is as follows:

“30. The Railway Company shall excavate only sufficient material from the Railway Company’s embankment to permit the deck of the temporary trestles to be placed.”

Under the terms of the Plans and Specifications as outlined in Claimant’s Exhibit “IB” it was claimant’s job to construct a complete permanent bridge structure, including the concrete cribbing. It had nothing to do with the grading of the roadway, including the excavation of the railway embankment, the paving of the roadway, and the installation of the roadway drainage system, as that work was to be performed under another contract as set out under said Claimant’s Exhibit “IB”.

The president of the claimant company testified that the State had let a contract for the excavating work, the general excavation, and that claimant assumed that all of the excavation because of its nature requiring heavy equipment, would be entirely done by the State Highway Department. It appears that this was not the case; that they did not excavate enough to permit the cribbing to be installed. While this is not all of that part of his testimony, it is sufficient to show that his assumption was erroneous. This witness also stated that the specifications provided that the claimant was to do the excavating for the abutment and wing wall foundations. Having quoted from the Plans and Specifications, the proposal and the contract, we cannot agree that the excavating and backfilling, which is the subject of this particular part of the claim, is in no way inserted or intimated in the contract or specifications.

It is claimed that there were errors not only in the specifications, but likewise in the plans, regarding the requirements of the waterproofing, and the attention of the District Engineer’s office was called thereto, and Mr. Dillon, one of the Engineers, told claimant to take the plans and specifications to the Rock Island Railroad and find out what they actually wanted.

There was also a claim for extra compensation, which covers the furnishing and installing of the asphalt plank. Mr. Balkin the president of the claimant was not present at a conference with Mr. Dillon, possibly Mr. Walters and others, but he testified as to what the various people who were present at this conference had said. At that time Mr. Corre, manager of the Rock Island Railroad explained that their specification “membrane waterproofing” was a misnomer and that an error had been made in calling that “membrane waterproofing” specification, and what they really intended was the “bridge deck” specification, and the witness said that the difference would be that the inch and a half Creosote plank and the asphalt plank would be out.

■ "On the very first page of the plans for this job, under the heading of summary of quantities, we find the work to be contracted by the State included 23,341 BM Deck Timber Creosoted in 3,900 sq. ft. of waterproofing (membrane). On sheet No. 25 we find the same proportions. These are on the blue prints. In the “Schedule of Prices” in the contract signed by claimant there appears the item “Deck Timber (Creosoted), “23,341 ft. B. M. amounting to $2380.78 and 3,900 sq. ft. of Waterproofing (Membrane). This item is filled in at $585.00. The witness testified that their bid covered membrane waterproofing only. The witness also testified that at this conference they were asked to proceed and the State Highway Department under date of April 20, 1935 addressed a letter to claimant which is in evidence as Claimant’s Exhibit 10, and we quote therefrom:

“In answer to your letters of March 19 and March 26 regarding discrepancies in waterproofing items in connection with the above mentioned project, I wish to state to you. that we are passing the information regarding the membrance waterproofing and the asphalt plank items, together with the deck timber items to our Springfield office for a proper interpretation of the specifications and plans.
“I hope to hear from them in the near future.
“It is my thought that you should be paid for the asphalt plank and the deck timbers. However, we must wait until Springfield gives us the proper interpretation in regard to these items.” * * *

This letter was signed by Kendrick Harger, District Engineer. In his testimony, the witness, Balkin, said “We have a letter under date of April 20, 1935, in which the Disttrict Engineer’s office says definitely that in their judgment we should be paid for the asphalt plank.” This probably was the opinion of Kendrick Harger, the District Engineer, but very definitely he did not undertake and did not commit the State Highway Engineer’s office to that sentiment.

Final payment in the sum of $4,470.60 was made to the Duffin Iron Company, assignee of claimant on December 26, 1935, by warrant number 334902, and was mailed to said assignee on December 29, 1935, and on December 30, 1935, deposited in the First National Bank of Chicago by its president, John J. Duffin, and was marked paid by the State Auditor on December 31, 1935.

While an attempt has been made by experts to show that said work was not within the provisions of the contract, we must follow the universal rule that in the absence of any fraud, parole testimony cannot be received to chang'e, vary or alter the terms of a written contract.

We are of the opinion that the contract contemplated this work which is classified as extra. While it may have been more work than the claimant expected, yet it appears that it was all within the terms of the contract and all duly paid for. Consequently, there is nothing due and owing, and with this view of the facts, it is unnecessary to pass upon the motion made by the State to dismiss.

An award, therefore, will be denied.


text:
    (No. 2966
    Central States Distributors, Inc., Vincent M. Bondi, Hillman's Joe Grein and J. Pahls, Inc., E. G. Lyons and Raas Co., Fruit Industries, Ltd., A. M. West, Doing Business as Greystone Wines, Meyer Frank, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1939.

      Petition for rehearing denied February 14, 1941.

    Allen H. Schultz, for claimants.

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

delivered the opinion of the court:

The claimants allege that they were engaged in the bottling of bulk wines for resale, at their respective plants located in the City of Chicago and State of Illinois, and as bottlers of wines, they purchased wines in bulk from licensees in Illinois, and other states, and then bottled the same for resale to licensed dealers and licensed distributors in the State of Illinois, and in other states; that the annual fee for an importing distributor under the Illinois Liquor Control Law is $250.00; and for a Class B. Manufacturer’s license, that is, a manufacturer of wines, the license fee is $500.00; that prior to the amendment to the Illinois Liquor Control Law effective July 1, 1935, the fiscal license period commenced on May 1st of each year.

Claimants further allege that the Illinois Liquor Control Commission made an oral and verbal ruling to the effect that one who purchased bulk wines and bottled the same for resale is a manufacturer of wine, and must obtain a Class B. License and pay a license fee of $500.00, as provided for in the Illinois Liquor Control Law, and claimants should be required to obtain a license fee and pay the sum of $500.00 therefor.

Claimants contend further that they should only be required to obtain an Importing Distributor’s License, and pay therefor, the sum of $250.00, but that they were required to pay $500.00 commencing on May 1,1934, or go out of business. It is also averred that the Illinois Liquor Control Commission stated to the claimants that the Illinois Liquor Control Commission would grant claimants a refund of $250.00 each if the regulation was changed, and it would not be .necessary for the claimants to go through any legal proceedings to obtain said fund, and as a result of this promise made by the Commission, the claimants did not file suit for a temporary injunction as they had planned to do.

It is also averred that the Commission did not rescind its verbal regulation, and did not recommend that a refund be granted to claimants in the sum of $250.00 each, or in any other sum, but passed Regulation 6A of the Joint Rules and Regulations of the Illinois Liquor Control Commission and the Department of Finance, which reads as follows:

“Any person who acquires any alcoholic liquors in bulk and bottles or changes the container of such alcoholic liquors either in its original condition, or after having rectified, blended or fortified the same, is deemed to he a manufacturer and is required to obtain a manufacturer’s license.”

This regulation was rescinded on May 31, 1935, and the Illinois Liquor Control Commission suggested to claimants that if they desired to obtain the refund of $250.00, it would be necessary for them to file their claim with the Court of Claims.

It appears that the claimants paid the sum of $5001)0 under protest in time to do business commencing the fiscal year May 1, 1934, and that they paid the same for the year commencing May 1, 1934 and ending April 30, 1935.

The Attorney General has moved to dismiss this suit for the reason that during this time the Illinois Liquor Control Commission required claimants to pay $500.00' per year, and that the claimants had a remedy at law which was complete and adequate.

Claimants contend that no refund was made. The rules were not changed for the full period of one year for which they paid their license fee, and what they did was to pay double the license fee required by law, but it is plain, that whatever the merits of this controversy be, this court has no jurisdiction in the case for the reason that the Statute provides in Section 8a of Article VII of the Liquor Control Act of Illinois, as follows:

“When no appeal is taken from a rule, regulation, order or decision of said State commission, as herein provided, parties affected by such rule, regulation, order or decision shall he deemed to have waived the right to have the merits of said controversy reviewed by a court and there shall be no trial of the merits of any controversy in which such rule, regulation, order or decision was made, by any court or in any other judicial proceeding.”

The Act provides for an appeal in such case.

In view of this statute, this court does not have any jurisdiction because no appeal was taken in the manner provided by law, and the case relied upon by claimants, that of Lombardo, et al. vs. State of Illinois, 9 C. C. R. page 271 is not in point. Because that question did not arise in that case, another reason exists barring an award in this case. It does not appear that the Illinois Liquor Control Commission had any power under the statute to grant a refund in this casé. Therefore, it was without power to make a promise to refund taxes voluntarily paid. In the case of LeFevre vs. County of Lee, 353 Ill. page 30, it was held that taxes paid voluntarily and not under duress cannot be recovered by the tax-payer even though the tax be illegal, and it was also held that a board of supervisors had no authority to refund taxes except that given it by the revenue act.

The motion of the Attorney General to dismiss will, therefore, be sustained, and the case dismissed.


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    (No. 2696
    Maude Allison, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    Andrews & Young, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The complaint was filed in this cause on July 3, 1935, alleging that on November 30, 1934, the State of Illinois, was in possession and control of a certain public highway lying immediately south of the City of Kewanee, Illinois, and known as U. S. Route No. 34 and being Route No. 78 of the State of Illinois; that at that time, and for several days prior thereto, the State was engaged in paving and repairing certain portions of this highway, and had caused certain large holes, depressions, and excavations to be made in the highway at a point where the highway crossed a certain creek or a ditch.

Claimant further charged that at the place where the State was repairing the road, it had prior to the time of the happening of the injuries complained of, negligently piled certain sand, gravel, broken concrete and other materials on the east half of the paved surface of the road where the public was] accustomed to travel and where the State had made an excavation in the road for some 200 feet and upwards; that it was the duty of the State, by it servants and agents, to exercise all due care and caution in making said repairs and excavations and in piling said concrete upon said road, and inj barricading the same, for the purpose of protecting the traveling public and those riding in automobiles along said road, from injury, danger or hazard; but notwithstanding its duty in that behalf, the respondent on the said 30th day of November, 1934, negligently left and permitted to remain on said road, the said obstructions, without signal lights and guards, but had placed two kerosene flares at the north end of the excavation and piles of broken concrete in such a manner that the kerosene flares appeared to indicate certain dangers near the point in the public highway where the flares were located; that this was done contrary to Section 151 of the law in “Relation to Road and Bridges.”

The claimant further avers that she was riding in the rear seat of"' an automobile and was using and exercising all due care for her own safety, but had no control over the automobile, and because of the respondent’s act, the driver of the automobile in which the claimant was riding was caused to believe that the only obstruction in the highway near that point was at, or near, the two signal lights, which were the only signal lights in view at or immediately prior to the time of the accident.

Claimant also avers very substantial injuries and damages in the sum of $10,000.00 by reason of the negligent acts of the agents of the State.

A Bill of Particulars was filed showing permanent injuries, physical and mental pain and suffering in the sum of $9,900.00.

The Attorney General has filed a motion to dismiss on the ground that it is sought to recover for injuries received by the claimant while riding in the back seat of an automobile which was alleged to have run into broken concrete negligently piled upon the highway by the servants of the State.

Another question of fact is raised on the motion which will not be considered.

The Attorney General contends that the claimant does not present a cause of action against the State and refers to many decisions of this court.

On November 19, 1914, in the case of Morrissey vs. State of Illinois, 2 C. C. R. 254, the Court of Claims of the State of Illinois held that the doctrine of respondent superior was not applicable to the State. In that case many authorities were cited by both the State and the claimant, and the court very carefully analyzed the whole situation. Since that time there has been many similiar holdings by the court and the rule has not been changed .

This complaint is drawn on the theory that the State is liable for injuries caused by the negligent conduct of its employees. The whole case of claimant is presented on the assumption that the same principles of law apply to the State as are applicable to individuals and corporations, but claimant has set forth suggestions in opposition to the motion to dismiss. The claimant admits the law as stated by the respondent but states that this proposition is irrelevant for the State is never liable for any torts of its agents.

The Supreme Court of Illinois in the case of Minear vs. State Board of Agriculture, 259 Ill. 549, held that the provision of the statute providing that the State Board of Agriculture may sue and be sued has reference only to obligations incurred by contract in the management of the department of agriculture, and does not refer to an action of tort.

Claimant says that Paragraph 4, under Section 6 of the Court of Claims Act requires this court-to hear and determine all claims, legal, unliquidated and ex delicto, which the State, as a sovereign commonwealth, should in equity and good conscience discharge and pay, and that this court has jurisdiction of this case.

In the case of Crabtree vs. State of Illinois, 7 C. C. R. 207, this court held that the provisions of paragraph 4 of Section 6 of Court of Claims Act with reference to equity and good conscience merely defines the jurisdiction of the court and does not create a new liability against the State nor increase or enlarge any existing liability and limits jurisdiction of court to claims under which State would be liable in law or equity, if it were suable, and where claimant fails to bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure one.

The State of Illinois is not suable in this kind of a case under our constitution. The motion of the Attorney General will, therefore, be sustained and cause dismissed.


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    (No.2560
    Arcole Construction Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1941.

      Rehearing denied March 11, 1941.

    Sidney Levy, James J. Lawrence, Henry Blumberg and Howard J. Doyle, for claimant.
    John E. Cassidy, Attorney General; John Kasserman and Maurice J. Walsh, Assistant Attorneys General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On or about December 14, 1933, respondent, through its Department of Public Works and Buildings, Division of Highways, mailed to claimant and other contractors a certain “Notice to Contractors,” soliciting bids or proposals for the reconstruction of the pavement on Roosevelt Road in the City of Chicago, from Ashland Avenue to Canal Street, a distance of 1.3972 miles.

In and by such notice prospective bidders were advised that plans for said work prepared by the Department of Public Works and Buildings were available at the office of the District Engineer, and could be purchased, at the office of the Division of Highways at Springfield, Illinois.

Claimant purchased a copy of such plans; examined and studied the same, and inspected the site of the proposed improvement before submitting its bid for the doing of the work. In and* by its bid the claimant proposed to furnish all labor and materials necessary to complete said improvement according to said plans and specifications for the sum of $164,272.75, and at the unit prices therein specified.

Claimant was the low bidder on the project and was awarded the contract. On January 30, 1934 the respondent entered into a written agreement with claimant whereby the claimant agreed to do all the work, furnish all materials and all labor necessary to complete the work in accordance with the plans and specifications therein described, which plans and specifications were by said contract made essential documents and a part of said contract. Respondent agreed to pay the claimant for the work performed on a unit basis at the prices specified in claimant’s proposal or bid.

The plans showed, among other items, a cross section of the proposed 9-inch Portland cement concrete pavement and a “Typical Cross Section for Existing Granite Block pavement.”

The description of the improvement, as shown by the special provisions of the plans and specifications is as follows:

“This improvement consists of constructing a P. C. C. pavement between the existing curbs exclusive of the portion occupied by the Chicago Surface Lines, in accordance with the typical cross section as shown in the plans.”

The aforementioned ‘ ‘ Typical Cross Section for Existing Granite Block Pavement” (the pavement then in place) shows, among other things, a granité block pavement with an 8-inch Portland cement concrete base course. The evidence also shows that there was a two-inch sand cushion between said granite block pavement and said base course. The proposed improvement contemplated the removal óf the existing pavement and base course to at least three inches below the sub-grade of the proposed pavement and the construction of a new pavement in accordance with the plans and specifications.

Claimant commenced work under its contract about March 30, 1934, and started operations with a steam shovel on the north side of the street in order to remove the granite block pavement, and followed shortly thereafter with other steam shovels to remove the 8-inch Portland cement concrete base course. Claimant then discovered that on the north side of the street extending through the entire length of the proposed improvement, there was an abandoned street car track foundation of very tough Portland cement concrete, which had imbedded in it the wooden ties formerly part of the street car track construction. This street car track foundation was approximately eighteen (18) feet in width and had a thickness of from sixteen to twenty inches and was bonded to the eight-inch concrete described in the “typical cross section” above referred to. The requirement of the specifications for excavation to at least three inches below the sub-grade of the proposed pavement necessitated the removal of the top three inches of the old street car track foundation. Such foundation was of very tough material and could not be removed in the same manner as the eight-inch Portland cement concrete base, to wit, by steam shovels, but had to be cut and chipped off by compressed air' methods.

Upon the discovery of the old street car track foundation claimant notified the officials of the Highway Department and a meeting with such officials was held on the site of the work. Claimant demonstrated'to the representatives of respondent that said street car track foundation, or so much of it as was required to be removed, could not be removed by the usual and ordinary means employed. In an effort to solve the problem it was suggested that the grade of the proposed pavement be raised to such an extent that it would be unnecessary to interfere with the street car track foundation, but on account of drainage plans on the job, such suggestion was found to be impracticable. Several other suggestions were made, but on account of the refusal of the Federal Bureau of Highways to consent to a base of less than nine inches in thickness on the proposed improvement, it was impossible to change the plans, and the claimant proceeded with the work in accordance with the plans and specifications. Thereafter claimant completed the work required to be done under the contract, and the same was accepted and approved by the proper authorities of the respondent.

On December 26, 1934, claimant filed its complaint herein “for damages accruing to it in the sum of $24,944.85 for the cost of equipment, wages and other expenditures caused by being compelled to cut out and break loose the old concrete paving base on said project from the old street car track foundation and chipping and cutting the old street car track foundation to the sub-grade of the new pavement,” and based its claim upon the following contentions, to wit:

A) That the plans and specifications for the improvement prepared by the respondent did not truly, accurately and correctly set forth the nature, character and amount of work to be performed by the claimant in.the construction of the improvement.

B) That thereby the claimant was deceived and misled in making its proposal, and in entering into said contract.

C) That as a result thereof claimant was put to an expense of $24,944.85, which it would not have been required to expend had the conditions as to the sub-grade been as represented by the respondent in the plans and specifications.

Final payment estimate under the contract was scheduled for payment on January 14, 1935, and supplemental final payment estimate was scheduled for payment on June 28, 1935, and actual payments were made shortly after said respective dates.

On the hearing o'f the case it was stipulated by counsel for claimant and respondent that the claimant, in order to complete the improvement in accordance with its contract, broke loose the then existing concrete pavement base from the old street car track foundation; that such cutting and chipping was required to be done by compressed air methods in order to bring the old car track foundation to the proper sub-grade; that the Department of Public Works and Buildings checked the salaries, labor, equipment rental, rates and costs in connection with said work of cutting and breaking loose said existing concrete pavement base from said old and abandoned concrete street car track foundation, and that the reasonable cost of said work was $23,092.09, and that it cost the claimant to complete said improvement the sum of $23,092.09 over and above the amount it would have cost had it not been necessary to cut and chip said old concrete street car track foundation to the depth of the sub-grade of the new pavement.

It was also stipulated by counsel on the hearing that the provisions of Division One of Section 9.7 of the standard specifications be waived. Such provisions are to the effect that the acceptance of the last payment by the contractor shall operate as a release to the Department from all claims or liability under the contract.

Claimant takes the position that there was a material misrepresentation in the specifications as to the nature of the subgrade; that the specifications showed only an 8-inch Portland cement concrete base beneath the granite block pavement, whereas in fact, for the length of the entire improvement and for a width of eighteen feet, the Portland cement concrete base was from twenty-four to twenty-eight inches in thickness; that it had a right to rely upon said specifications; that it was deceived and misled thereby, and consequently bid less than it would have bid had it not been so misled; that it is therefore entitled to recover the loss sustained by it on account of such misrepresentation, and that the amount of such loss is $23,092.09.

The respondent contends that claimant was not deceived or misled by any action of the respondent; that it was the duty of the claimant to inform itself of the nature of the sub-grade under the existing pavement, and having failed to do so it is not entitled to recover the cost and expense resulting from conditions which it did not anticipate; also that claimant is now seeking to obtain additional compensation for an expense incurred in performing the contract, and that á payment to the claimant therefor would be in violation of Section 19 of Article 4 of the Constitution of Illinois, which provides as follows:

“The General Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made, nor authorize the payment of any claim, or part thereof, hereafter created against the State under any agreement or contract made without express authority of law; and all such unauthorized agreement or contracts shall be null and void; Provided, the General Assembly may make appropriations for expenditures incurred in suppressing insurrection or repelling invasion.”

Respondent also contends that the action of the claimant in accepting the last payment under the contract without objection or reservation constitutes a release of all liability under said contract; that such release is a substantial defense to this proceeding, and that the Attorney General had no authority to enter into a stipulation waiving same; also that the action of the claimant sounds in tort and is an action ex delicto, and that the State is not liable for the torts of its officers or agents.

The first question for consideration, therefore, is whether there was a material misrepresentation in the plans and specifications as to the nature of the sub-grade; if so, was the claimant misled thereby, and did he sustain damage by reason thereof?

The claimant, in support of its contention, relies upon the aforementioned ‘ ‘ Typical Cross Section for Existing Granite Block Pavement,” which shows an existing eight-inch Portland cement concrete base course underlying the existing granite block pavement, and the testimony of witnesses as to the proper meaning, construction and application thereof.

The respondent, in support of its contention, relies upon the following provisions of the proposal, plans and specifications, and the testimony of witnesses as to the proper meaning, construction and application thereof:

“The undersigned further declares that he has carefully examined the proposal, plans, specifications, form of contract and contract bond and special provisions (if any), and that he has inspected in detail the site of the proposed work and that he has familiarized himself with all of the local conditions affecting the contract and the detailed requirement of construction and understands that in making this proposal he waives all right to plead any misunderstanding regarding the same.”
Description of Improvement. This improvement consists of constructing a P. C. C. Pavement between the existing curbs exclusive of the portion occupied by the Chicago Surface Lines in accordance with the typical crossing section as shown in the plans.”
“Pavement Cross-Section. On this section, bids for Portland cement Concrete Pavement shall be based on a pavement cross-section with an interior thickness of nine (9) inches as shown by Special Cross-Section on Sheet 6 of the plans.”
“Cross-Section of Existing Pavement. The dimensions shown on the typical cross-section of the existing pavement are approximate. This cross-section is shown to give the Contractor the approximate relationship between the existing cross-section and the proposed cross-section.
“Examination of Plans, Specifications, Special Provisions, and Site of Work. The bidder shall before submitting his bid or bids, carefully examine'the proposal, plans, specifications, special provisions, and form of contract and bond. He shall inspect in detail the site of the proposed work and familiarize himself with all the local conditions affecting the contract and the detailed requirements of construction. If his bid is accepted, he will be responsible for all errors in his proposal resulting from his failure or neglect to comply with these instructions. The Department will, in no case, be responsible for any change in anticipated profits resulting from such failure or neglect.”
“Special Excavation. All excavation shall be classified as “Special Excavation,” and no other classification will be allowed. . . .
The removal of all types of pavement (including base course and wearing surface) curbs, sidewalks,' driveways and structures shall be classified as ‘Special Excavation.’ Existing pavement, existing base course of any existing structure shall be removed to at least three inches below sub-grade of the proposed pavement or curb. . . .”
“The volume of special excavation for which payment shall be made includes only the cubic yardage between the surface of the ground pavement, curb, sidewalks or driveway as it existed at the time of starting the work on the improvement, and the ground pavement, sub-grade curb, sub-grade sidewalk, sub-grade or driveway sub-grade of the finished improvement. This volume shall be computed by the average and area method of computing earth work. This volume may include any or all of the following materials: excavation of any nature, borrow, all types of pavement, (including wearing surface and base course) curbs, sidewalks, driveways and structures of any nature.”
“Basis of payment. This work shall be paid for in the contract unit price per cubic yard for ‘Special Excavation,’ which price shall be payment in full for all excavation, furnishing and placing of all borrow which may be required, removal of all pavement (including base course and wearing surface), curbs, sidewalks, driveways and structures,, and disposal of all material as specified herein, and for work specified under the general heading of ‘Earth Work’ in the standard specifications, for which no separate unit prices are included in the contract. Such payment shall include full compensation for all equipment, tools, labor- and incidentals necessary to complete the work.”

In support of its contention the claimant placed in evidence a blue-print entitled “Cross Section of Existing Pavement, S. B. I. Route 50,” etc., which constituted a part of the plans prepared by the respondent on a certain Cicero Avenue project in Chicago, upon which bids were received at the same time they were received on the project involved in this ease, on which project the claimant was also the successful bidder. Such blue print shows a brick surface course, a one-inch sand cushion, a six-inch Portland cement concrete base course, and underneath that an old five-inch Portland cement concrete pavement, eleven feet and five inches wide on each side of the street immediately adjoining the street car right-of-way which runs down the center of the street.

The improvement involved in the present proceeding, as originally contemplated by the respondent, provided for the removal of the old granite blocks and the sand cushion, patching the old concrete base where it was in bad condition, and then relaying the granite blocks on a new sand cushion. Claimant was the low bidder on that project, but upon taking a number of core drills, the respondent. found that the concrete was so poor that it crumbled under the core machine, and therefore decided that it would be a waste of money to try to patch it; whereupon all bids were rejected, the project was abandoned and the project involved in this case was substituted therefor. Claimant knew of the core tests taken by the respondent and knew what was shown thereby, and based its bid in part upon the information in its1 possession as to the result of such core tests.

Claimant called as witnesses four other contractors who had bid upon this project, also a consulting engineer who specialized in municipal improvement work and who had many years’ experience in such work. Each of such four contractors testified in substance that he had no knowledge of the old street car track foundation before he submitted his bid; that he had no knowledge of the core tests made by the respondent; that before making his bid he made an examination of the site of the work by walking over the entire length thereof; that it was not customary for any contractor to make core tests on any job; that if there was a street car track foundation immediately underneath the existing pavement, he would expect ,the plans and specifications to show it; that from an examination of the plans and specifications involved in this project he would expect to find under the eight-inch concrete base of the old pavement just ordinary excavation, that is to say, such excavation as would ordinarily be found under a Chicago street!

The consulting engineer testified as an expert and stated in substance that in ordinary engineering practice the purpose of observing a Typical Cross Section is to give the contractor accurate information regarding existing conditions, and to show the relationship between the existing improvement and the proposed improvement; that its purpose also is to show the contractor what he may expect to find underneath the existing pavement, not only the relationship in dimensions but also the nature and quality of the material to be removed; that from an examination of claimant’s Exhibits 2 and 3, contractors proposing to bid on the project would reasonably expect to find, first, the existing granite block and then a cushion from one inch to two inches in thickness, then an eight-inch concrete base, and then the materials ordinarily found in a city street under existing pavement ; that a street car track foundation would not ordinarily be considered ordinary material to be found under the concrete base.

The respondent produced two witnesses connected with the water pipe extension department of the City of Chicago, who testified that between December 14th and December 30, 1933, at least four or five openings were made in Roosevelt Road for the purpose of installing test pipes; that such openings were about four or five feet long and the same width and about eight feet in depth; and that they remained open for several days.

Respondent also offered in evidence the testimony of four contractors who bid on the job, each of whom had previous knowledge of the existence of the old street car track foundation. They ■ testified in effect that the object of the Typical Cross Section of existing improvement offered in evidence was simply to show the relationship between the existing improvement and the proposed improvement; that the contractor was required to be governed by the specifications ; that under the provisions of the specifications relative to special excavations it was necessary for the contractor to remove the sub-grade beneath the proposed pavement for the required distance regardless o'fl the nature or. character thereof; that it was incumbent upon the contractor to make such examination and such tests as- were necessary to disclose the nature and character of the sub-grade to be excavated.

From a consideration of all of the matters in the record we are of the opinion that the proposal, the plans and specifications, the contract and everything included therein, must be considered together for the purpose of ascertaining and determining the meaning of such contract; also that the statement in the specifications to the- effect that the Typical Cross Section is shown “to give the contractor the approximate relationship between the existing cross section and the proposed cross section,” must be construed to include, among other relationships, the relationship in dimensions.

The uncontradicted evidence discloses that the old street car track foundation was firmly bonded to and an integral part of the eight-inch Portland cement concrete base. The Typical Cross Section in evidence as Claimant’s Exhibit 2 showed that the Portland cement base underlying the existing granite pavement was eight inches in thickness. The uncontradicted evidence also shows that throughout the entire length of the entire improvement and for a width of eighteen feet such Portland cement concrete base varied from twenty-four to twenty-eight inches in thickness. The showing in the Typical Cross Section to the effect that underlying the granite block pavement was an eight-inch Portland cement concrete base therefore was not in accordance with the facts.

Apparently the claimant and the respondent were both unaware of the existence of such street car track foundation.

o That such foundation would have been shown in the plans, if the existence thereof was known to the respondent, is clearly indicated by the fact that in the plans for the Cicero Avenue project hereinbefore referred to, where a similar situation existed, the blue prints specifically showed the existence of the underlying pavement.

We conclude, therefore, that there was a misrepresentation on the part of the respondent, and that such misrepresentation was material.

There remains for consideration the question as to the effect of a material misrepresentation in a case of this kind.

The rule seems to be well settled that where the plans and specifications are prepared by the owner, and there is a material misrepresentation therein, and as the result of such misrepresentation the contractor is misled to his damage, he is entitled to recover the damage so sustained. The difficulty in cases of this kind lies in the application of this rule to the particular case.

The case of Hollerbach vs. United States, 233 U. S. 165, is one of the leading cases in this country on the questions here involved. In that case the plaintiff contracted with the United States for the repair of Dam No. 1 at Green Eiver, Kentucky. After completion of the work plaintiff claimed that there was a material misrepresentation in the specifications prepared by the United States; that by reason thereof the cost of the work required to be done was substantially in excess of what it otherwise would have been, and sued to recover the damages sustained by reason of such misrepresentation.

The following paragraphs of the specifications were material to the issues involved in the case, to wit:

Paragraph 33 — "The dam is now backed for about fifty feet with broken stone, sawdust, and sediment to a height of within two or three feet of the crest, and it is expected that a cofferdam can be constructed with this stone, after which it can be backed with sawdust or other material. The excavation behind the dam will be required to go to the bottom, and it is thought that a slope of 1 horizontal to 1.2 vertical will give ample room.”
Paragraph 20 — “It is understood and agreed that the quantities given are approximate only, and that no claim shall be made against the United States on account of any excess or deficiency, absolute or relative, in the same. Bidders, or their authorized agents, are expected to examine the maps and drawings in this office, which are open to their inspection, to visit the locality of the work, and to make their own estimates of the facilities and difficulties attending the execution of the proposed contract, including local conditions, uncertainty of weather, and all other contingencies.”
Paragraph 70 — “Investigation. It is expected that each bidder will visit the site of this work, the office of the lock master, and the office of the local engineer, and ascertain the nature of the work, the general character of the river as to floods and low water, and obtain the information necessary to enable him to make an intelligent proposal.”

As they proceeded with the work plaintiffs found that the dam was not backed with broken stone, sawdust and sediment, as stated in paragraph 33 of the specifications, and below seven feet from the top to the bottom there was a backing of cribbing of an average height of 4.3 feet of sound logs filled with stone. As the result thereof the work was made much more expensive than if the representations inserted in the specifications had been true and only the character of the materials had been found which the specifications asserted was there.

Plaintiff in that case urged the. same contentions which are presented in the case at bar, and in disposing of such contentions the court said:

“A government contract should be interpreted as are contracts between individuals, with a view to ascertaining the intention of the parties and to give it effect accordingly, if that can be done consistently with the terms of the instrument. In Paragraph 33 the specifications spoke with certainty as to a part of the conditions to be encountered by the claimants. True, the claimants might have penetrated the seven feet of soft slushy sediment by means which would have discovered the log crib work filled with stones which was concealed below, .but the specifications assured them of the character of the material, — a matter concerning which the government might be presumed to speak with knowledge and authority. We think this positive statement of the specifications must be taken as true and binding upon the government, and that upon it, rather than upon the claimants, must fall the loss resulting from such mistaken representations. We think it would be going quite too far to interpret the general language of the other paragraphs as requiring independent investigation of facts which the specifications furnished by the government as a basis of the contract left in no doubt. If the government wished to leave the matter open to the independent investigation of the claimants, it might easily have omitted the specification as to the character of the filling back of 'the dam. In its positive assertion of the nature of this much of the work it made - a representation upon which the claimants had a right to rely without an investigation to prove its falsity.”

The case of United States vs. Atlantic Dredging Co., 253 U. S. 1, was a case in which the facts were somewhat similar to the case at bar. After stating the facts, the-court said:

"The case is, therefore, within the ruling of United States vs. Spearin, 248 U. S. 132, 136, 64 L. ed. 166, 169, 39 Sup. Ct. Rep. 59, where it is stated that the direction to contractors to visit the site and inform themselves of the actual conditions of a proposed undertaking will not relieve from defects in the plans and specifications, citing Christie vs. United States, 237 U. S. 234, 59 L. ed. 933, 35 Sup. Ct. Rep. 565; Hollerbach vs. United States, 233 U. S. 165, 58 L. ed. 898, 34 Sup. Ct. Rep. 553, and United States vs. Utah, N. & C. Stage Co., 199 U. S. 424, 50 L. ed. 255, 26 Sup Ct. Rep. 69. It is held in those cases ‘that the contractor ought to be relieved, if he was misled by erroneous statements in the specifications.’ The present case is certainly within the principle expressed.”

The case of United States vs. Smith involved a contract for the excavation of a ship channel in the Detroit River approximately twenty-one feet deep, and provided that “the material to be removed consists of sand, gravel and boulders, all in unknown quantities.” It was subsequently discovered that there was a natural bed of limestone rock within the boundaries of the excavation called for by the contract which was not provided for by the contract. The officers of the defendant in charge of the work insisted upon the performance of the contract in accordance with its terms, including the removal of the limestone. The contractor was thereby put to considerable expense in addition to what he would have been required to pay had the material which was required to be removed consisted of sand, gravel and boulders as stated in the specifications, and proceedings were commenced in the Court of Claims to recover the damages sustained by the contractor. The Court of Claims held with the contractor and upon appeal to the Supreme Court of the United States, that court said:

“We think the ease is within the principle of Hollerbach vs. United States, 233 U. S. 165. * * * We concur, therefore, with the declaration of the Court of Claims that the right of appellees to recover for the work done by them is indisputable.”

The contentions involved in the cases heretofore cited were similar to those in the case at bar, and under the authority of such cases the provisions of,the plans and specifications relied upon by respondent do not constitute a defense to the plaintiff’s claim.

Respondent’s contention that the claimant is seeking to obtain additional compensation for work performed under the contract, and that the payment of such compensation would be in violation of Section 19 of Article 4 of the Constitution is equally without merit. The plaintiff is not seeking to recover compensation for work done under the provisions of the contract, but seeks to recover damages resulting from the misrepresentation of the respondent.

A somewhat similar state of facts was involved in the case of Pitt Construction Co. vs. City of Alliance, Ohio, 12 Fed. 2d, 28. In considering the- questions there involved, the court said:

“The suit is not brought to recover anything earned under the contract or for extra work of the character contemplated by the contract; it is brought to recover damages for the misrepresentation by which the contract was induced.”

To the same effect see Horgan vs. New York, 160 N. Y. 518. As stated in the last case, “the unforseen obstruction that was encountered and that subjected this plaintiff to a large amount of extra work was entirely outside of the contract and stands unaffected by this provision.”

Respondent also contends that under the provisions of the specifications, the action of the claimant in accepting the last payment under the contract without objection or reservation constitutes a release of all liability under said contract, and that the action of the Attorney General in waiving such provisions of the specifications was without authority and therefore not binding upon the respondent. The provisions of the specifications involved in this contention are as follows:

“The acceptance by the contractor of the last payment as aforesaid, shall operate as and shall be a release to the Department from all claims or liability under this contract for anything done or furnished or relating to the work under this contract, or for any act of neglect of said Department relating to or connected with this contract.”

It will be noted that these provisions purport to release the Department “from all claims or liability under this contract.” As previously stated, the liability of the respondent is not under the contract, but wholly outside of the contract, and consequently the provisions of the specifications relied upon do not constitute a defense under the facts of this case.

Furthermore, under the facts here involved, we are of the opinion that the Attorney General had authority to make the stipulation in question.

In considering the authority of the Attorney General, our Supreme Court, in the case of People vs. Spring Lake District, 253 Ill. 479, 504, where a similar question was involved, said:

“Appellees contend that the stipulation was one that the Attorney General had no power to enter into. Upon this branch of the case but little need be said. The Attorney General, under the law, is the sole representative of the people and the canal commissioners and has the power to file informations such as the one filed against appellees, and has power, both under the common law and under the statute, to make any disposition of such causes that he deems best to the interest of the State. (Hunt vs. Chicago Horse & Dummy Railway Co., 121 Ill. 638; Canal Comrs. vs. Village of East Peoria, 179 id. 214). No serious question can be raised in respect to the power of the Attorney General to dismiss a suit brought by him, either with or without any stipulation, upon behalf of the opposite party.”

The case of Keithley vs. County of Clark, 206 Ill. App. 500, and the cases there cited, support the right of the Attorney General to enter into the stipulation involved in this case.

It must also be borne in mind that the stipulation in question was admitted into the record on February 27, 1935, at the first hearing of this cause, by the Assistant Attorney General then in charge of the case, and that no question as to the right or authority of the Attorney General to enter into such stipulation was raised until after all of the evidence on both sides had been introduced, and the respondent’s Statement, Brief and Argument was filed herein on March 27, 1940, by the Assistant Attorney General then in charge of the case.

If the respondent intended to raise the question as to the authority of the Attorney General to enter into the stipulation, it should have been done before the proofs were closed, so that the claimant would have been in position to take such steps as it considered necessary for the protection of its rights in the matter.

The final contention of the respondent is that the action of the claimant sounds in tort, and the State is not liable for the torts of its officers or agents.

This action is not based upon the negligence of any officer or agent of the respondent, and consequently the rule sought to be invoked by respondent has no application in this case.

In the case of U. S. vs. Atlantic Dredging Co., 253 U. S. 1, hereinbefore cited, the- court said:

“The government makes the point, however, that the implication of the case is that bad methods were used, and insists that the implication makes the action one for a tort, and not tenable against the United States. We cannot assent. There is no intimation of bad faith against the officers of the government, and the Court of Claims regarded the representation of the character of the material as in the nature of a warranty; besides, its judgment is in no way punitive. It is simply compensatory of the cost of the work, of which the government got the benefit.”

Furthermore, the last mentioned case originated in the United States Court of Claims, which court has no jurisdiction of tort actions. Under the Court of Claims law of this State, however, this court is expressly given jurisdiction of actions ex delicto. The contention of the respondent is not well taken.

Under the evidence and the law as set forth in the foregoing cases, the claimant is entitled to an award herein. The amount to which the claimant is entitled is not in dispute. The representatives of the respondent checked the work involved in this claim as it proceeded, and under the evidence it is clear that the amount to which the claimant is entitled is $23,092.09.

Award is therefore entered in favor of! the claimant, Arcóle Construction Company, for the sum of Twenty-three Thousand Ninety-two Dollars and Nine Cents ($23,092.09).


text:
    (No. 2870
    Robert Bishop, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    Dove & Dove, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The complaint in this' case was filed on March 25, 1936, and alleges that claimant, on the 3rd day of June, 1935, was in the employ of the State of Illinois under the Department of Public Works and Buildings, Division of Highways, and was engaged in the gravelling of the Okaw Trail near Shelby-ville, Shelby County, Illinois, the said Okaw Trail being one of the State highways constructed by the said Department of Public Works and Buildings, Division of Highways, through the County of Shelby and runs in a northerly and southerly direction; that while he was working as a truck driver, hauling gravel on to this new improvement and while engaged in and about his duties he received an injury to his left foot, to wit: the bones in the great toe and the two adjoining toes on the left foot were crushed when the dump bed on said truck fell on to the great toe and the two adjoining toes on said foot.

It is admitted that the State had notice of the accident within a very short time; that one Clay. Hoskins was in charge of this improvement and was the boss or superior over claimant and knew of the injury within an hour or two. It is also charged that the claimant had not been able to work from the time of the injury, and in the opinion of his physician would not be able to work until the first of December, 1936.

The claim flor compensation was filed on the 18th day of October, 1935.

Claimant further avers that he obligated himself to pay Three Hundred Dollars ($300.00) for hospital, medical and surgical bills, and that these bills should be paid by the State of Illinois, as provided by the Workmen’s Compensation Act.

Claimant further alleges that while in the employ of the State of Illinois he was receiving the sum of Four Dollars ($4.00) per day, but that he has received no pay, wages or compensation since the date of the injury.

Claimant is married; is living with his wife and is the father of two children under the age of sixteen years.

Evidence was duly taken by deposition. After a hearing ofl all the evidence, the Attorney General moved to dismiss the claim on the ground that claimant was not in the employ of the State at the time of his injury.

This accident occurred some time between eight and nine o’clock in the forenoon, south of Shelbyville, Illinois, on the morning of June 3, 1935. Clyde Van Meter, who owned a truck, and who was working on this job of hauling gravel, made one trip that morning. The gravel was obtained on the north side of Shelbyville and the improvement was being made on the east side of Shelbyville. Claimant testified that Van Meter stopped him on the morning .in question and asked him if he wanted a job. Claimant said he did and Van Meter told him to jump in the truck. The truck at that time was loaded with gravel. Van Meter told claimant to dump the load and go out to the pit and finish the job. Claimant got on the truck and drove to the gravel pit. While dumping the truck, claimant’s foot became injured by the body of the truck in some way pinching it with another part of the truck. Claimant had never driven this truck or any other truck belonging to Van Meter prior to this day, and never had been in the employ of the Division of Highways before this time.

The foreman on the job for the State was at the gravel pit, and the claimant saw him there, according to the evidence, but there was' no conversation between them. There were six or eight trucks at the pit at that time, but the claimant did not know any of the people who were doing the hauling, according to his testimony, which was taken on March 11, 1937. Claimant further testified that he had no conversation with the foreman about wages or compensation and had not discussed it with Van Meter; that he did not know how much he was going to get or how long he would be on the job, and that he had never talked to anyone connected with the Division of Highways for the State of Illinois about driving Van Meter’s truck and hauling. Claimant further testified that Van Meter had not made him an offer; that claimant was out of employment at the time and was glad to get anything; that he did not know Clay Hoskins personally and prior to his injury he had had no conversation with him; that he did not know whether Hoskins knew him or not; that he just saw Hoskins at the gravel pit that day, but had had no conversation with him; that he just drove the truck up and loaded it; that nobody said anything to him and Van Meter did not tell him to see anyone, foreman or otherwise, about the work he was doing. Claimant further testified that prior to the time of his injury he had not talked to any foreman or superintendent or engineer about driving Van Meter’s truck; that he had known Van Meter for some time, and Van Meter knew he was out of work; that Van Meter just happened to meet him on the street that morning as he drove through. Claimant further testified that he had never talked to any member of the Division of Highways or Public Works and Buildings to see that his name was on the pay roll.

Claimant further testified that after the accident Clay Hoskins came to see him while he was at the doctor’s office and told him that he would do what he could for him, and that he would get compensation for him if he could, and did approve the doctor’s and hospital hills.

An intervening petition has been filed in this case by both Dr. Mauzey and the Shelby County Memorial Hospital. Within a day or two after the accident in question the doctor received notification that Bishop was not an employee of the State, but nowhere in the record does it appear that the hospital ever was so advised and the hospital did render all necessary services. We, therefore, feel that their bill should be allowed. An award therefore is made upon the intervening petition to this hospital for the full amount of their bill, which is the sum of Thirty-four ($34.00) Dollars. We feel the bill is reasonable, the services were rendered, and therefore make an award to the Shelby County Memorial Hospital in said sum of Thirty-four ($34.00) Dollars. An award to Robert Bishop and Dr. Mauzey is denied.

This award being subject to the provisions of an Act entitled “An Act making an Appropriation to Pay Compensation Claims to State Employees and providing for the Method of Payment Thereof” (Illinois Revised Statutes, 1939, State Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.


author: Mb. Justice Linscott

text:
    (No. 3388
    Paul Boyke, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    M. G. Kaufman, for claimant.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

The complaint alleges that the claimant was the owner of a Ford sedan, which was parked facing in an easterly direction on the south side of Montrose Avenue entirely beyond the southernmost limit of the pavement of Montrose Avenue, at a point about 200 feet west of Narragansett Avenue, in the City of Chicago; that while his automobile was so parked, a motor vehicle of the State of Illinois belonging to the Highway Department was driven in such a manner that it ran into and against this parked car, causing property damage of $140.00.

A bill of particulars is attached to the complaint, showing damages suffered by the claimant in the sum of $96.35 for necessary repairs.

A motion to dismiss has been made on the. ground that the complaint does not set forth a claim which the State of Illinois, as a sovereign commonwealth, should discharge and pay for the reason that the claimant seeks an award predicated upon the liability occasioned by the negligent acts of the agents of the State.

Many times this court has held that the State, in the construction and maintenance of its highway system, is engaged in a governmental function, and in the absence of a statute expressly so providing it is not liable for damages to property occasioned by the negligence or wrongful operation of motor vehicles operated by the Division of Highways.

Boner vs. State, 9 C. C. R 55; .
Royal vs. State, 9 C. C. R. 67 ;
Morgan vs. State, 9 C. C. R. 109;
Waterstreet vs. State, 9 C. C. R. Ill;
Clark vs. State, 9 C. C. R. 137;
Youngblut vs. State, 10 C. C. R. 52;
Duncan vs. State, 10 C. C. R. 154.

This court has further held that it has jurisdiction to make an award only in cases where the State would be liable in law or equity if it could be sued in a court of general jurisdiction.

Crabtree vs. State, 7 C. C. R. 207;
Royal vs. State, 9 C. C. R. 67.

The motion to dismiss will, therefore, be sustained and an award denied.


text:
    (No. 3409
    Edward M. Buchness, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    Claimant, pro se.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant in his complaint alleges that for the half year of 1937 and the full year 1938 he paid to the Secretary of State a license fee for his 1928 Buick sedan in excess of the amount which he legally should have been-required to pay; and therefore asks for a refund in the amount of such overpayment, to wit, the sum of Six Dollars ($6.00).

The Attorney General has moved to dismiss the claim on the ground that the complaint does not allege that the amount sought to be recovered was paid under protest, involuntarily, or under duress or compulsion, nor that the same was not correctly assessed on the basis of information supplied in the application made by claimant.

It is well settled that where a tax or license fee is paid voluntarily, without duress or compulsion, and not under protest, the same cannot be recovered. Where, however, such tax or license fee is paid under a mistake of fact, it is considered to have been paid involuntarily and may be recovered. However, where the tax is correctly computed by the taxing officer on the basis of an application or return filed by the applicant, and the overpayment is the result of inadvertence or mistake on the part of the taxpayer himself, and not on the part of the taxing officer, the payment is not made under a mistake of fact within the legal meaning of those words, and cannot be recovered. (Western Dairy Co. vs. State, 9 C. C. R. 498; James B. Emerick vs. State, 9 C. C. R. 510; Stotlar-Herrin Lumber Company vs. State, 9 C. C. R. 517; Fried Bell Paper Co. vs. State, 9 C. C. R. 531; Monarch Fire Insurance Co. vs. State, 9 C. C. R. 538; Oppenheimer Casing Co. vs. State, 10 C. C. R. 9.)

The complaint does not set forth a state of1 facts under which we have authority to allow an award, and the motion of the Attorney General to dismiss must be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 3169
    Lucy C. F. Chetlain, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    Chetlain & Chetlain, for claimant.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The complaint herein alleges in substance that in making application for a license for her Packard automobile for the year 1936 the claimant correctly stated that the horsepower of the automobile was 32.5; that in making remittance therefor, claimant sent a check for $17.00, which was the license fee required for automobiles with a horsepower of 35 or over; that the license fee for claimant’s automobile for the year 1936 was $10.50, and that she is entitled to a refund of the amount overpaid, to wit, $6.50.

The Attorney General has entered a motion to dismiss the claim for the reason that the complaint does not allege that the excess fee paid was paid under protest, duress or compulsion, or that there is a statute authorizing such refund.

It is a well settled rule of law in this State that where a tax or license fee is paid voluntarily and not under protest, compulsion or duress, it may not be recovered; also that where such tax or license fee is paid under a mistake of fact, it is considered as having been involuntarily paid and therefore may be recovered.

It is also well settled that where a tax or license fee is paid under a mistake of law, no recovery may be had. (Alton Light & Traction Co. vs. Rose, 117 Ill. App. 83; Yates vs. Royal Insurance Co., 200 Ill. 202; Board of Education vs. Toennigs, 297 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.)

Under the facts set forth in the Complaint, it is clear that the license fee in question was paid voluntarily, and not under protest, compulsion or duress. It is also clear that the same was not paid under a mistake of fact, as the application correctly set forth the horse power of the automobile. The most that can be said from the standpoint of the claimant is that the mistake in remitting more than the amount which was required by the provisions of the Motor Vehicle Law was a mistake of law. In any such event, under the authorities above cited we have no authority to allow an award.

The motion of the Attorney General must therefore be sustained. Motion to dismiss allowed. Case dismissed.