author: Chief Justice Dambou

text:
    (No. 3608
    Bunn Capitol Grocery Co., a Corporation, et al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1943.

    Charles True Adams and Samuel Morgan, for claimants.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Dambou

delivered the opinion of the court:

The facts in this care are stipulated.

The claimants are engaged in the wholesale grocery business. During the years 1935 to 1936 the Illinois Emergency Relief Commission, hereinafter called the Commission, financed its program of aid to the unemployed of the State by issuing relief orders which were exchangable at retail stores for various necessities including food. Said orders were demand obligations of said Commission and considerable time elapsed from their execution to their redemption, being paid, in fact, from three to six months subsequent to their original date. It was a common practice for retail merchants to assign many of these relief orders in lieu of cash to wholesale grocers in payment of wholesale grocery bills; said wholesale grocers, including the said claimants, would in turn obtain the full face value of such relief orders in cash from the Commission aforesaid upon the expiration of the said three to six months period; that prior to May, 1936, vast numbers of these assigned relief orders were retired by the Commission and prior to the last mentioned date no question was raised as to their validity or transferability, in fact the Commission prescribed and furnished forms for the assignment of relief orders.

That during the second or third week of May, 1936, the Auditor of Public Accounts in pursuance of the suggestions of the Department of Finance began for the first time, as far as these claimants were concerned, to set-off such sums as were due the State, from the retail merchants for Retailers ’ Occupational Tax against the principal amount of outstanding and unredeemed relief orders by virtue of the provisions of Section 12-13, Chapter 15, Smith Hurd Revised Statutes (1935); that the effect of these set-offs according to the claimants was to deprive them from full face value, redemption in certain relief orders assigned to them by retail grocers who were delinquent in their payment of this tax. Claimants say they were given no warning of the intention of the State of Illinois to invoke this law; that they acted in good faith and in complete reliance upon the course of conduct established over a period of many months by the said Commission, and that they were led to believe that the relief orders were redeemable by said Commission at all times, and under all conditions, and that so believing they sold groceries to retail merchants who had no credit standing or rating whatsoever and accepted relief orders in payment in lieu of cash. Claimants say they had no means of easily ascertaining whether or not any of the retail merchants who purchased from them were in arrears to the Department of Finance.

Claimants further say that they are the holders and owners of relief orders in the following amounts:

Bunn Capitol Grocery Co...... $497.29
Decatur Grocery Co............ 240.84
DuQuoin Packing Co........... 448.08
Guyer & Calkins Co............ 133.74
Howard & Casey Co............ 395.34
Intercity Grocery C°............ 400.42
Jageman-Bode Co.............. 412.26
Chris Hoerr & Son Co.......... 99.64
Kohl & Meyer Co............... 197.98
Peter G. Lennon Co............. 64.50
Oakford & Fahnestock....... 465.95
Peyton-Palmer Co. ............ 98.97
Eockford Wholesale Grocery Co. 281.84
The Scudders-Gale Grocery Co.. 212.10
C. E. Ward & Sons............. 113.15
$4,062.10

that they have on. numerous occasions subsequent to June, 1939, demanded payment of these sums, plus interest at the legal rate, from the said Commission, the Department of Finance, and the Auditor of Public Accounts for the State of Illinois, but that these claims have been denied and to date they have received no payments on account.

Both the claimants and the Attorney General have filed briefs and arguments citing many authorities.

Claimants say they should recover for the following reason:

1. The relief orders were assignable and transferable.
2. The State through its agency the Illinois Emergency Eelief Commission, by its actions, conduct, and representations entered into an implied contract to pay in full the relief orders assigned to the claimants.
3. The State is estopped by its conduct, acquiescence, and representations from denying its liability to the claimants on the said relief orders.
4. When a State permits itself to he sued and submits itself voluntarily to the jurisdiction of a court, its rights are subject to every equitable rule and principle, including that of estoppel.
5. Sections 12-13, Chapter 15, Smith-Hurd Revised Statutes (1935) were enacted long before the passage of the Retailers’ Occupational Tax Act or the .establishment of the Illinois Emergency Relief Commission and were not intended to apply to cases involving either.

The respondent says claimants should not recover for the following reasons:

1. Even though the relief orders might have been assignable, they were not negotiable, consequently, such orders were subject to any and all defenses in the hands of assignees.
2. An implied contract to do an illegal act cannot arise between the State and an individual, but even if it could, the facts here do not support an allegation of “implied contract” or “unjust enrichment.”
3. No estoppel to deny liability has arisen because:
(a) the State never represented the relief orders as being negotiable, and,
(b) the claimants are not holders for value without notice. The State never represented the relief orders as being negotiable. The claimants are not holders for value without notice.
4. A State is not subject to estoppel when acting within its sovereign capacity.
5. The Legislature did not intend relief orders either to be or to possess the attributes of legal tender; if it had any such intention, the act would have been unconstitutional and the relief orders issued thereunder would be void.

The question for our decision requires a construction of Chapter 15, Section 12-13, Smith-Hurd, Revised Statutes (1935) which provides as follows:

(Section 12). Whenever any person shall be entitled to a warrant on the treasurer, on any account or claim in favor of the State, then due and payable, the Auditor of Public Accounts shall ascertain the amount due and payable to the State, as aforesaid, and issue a warrant on the treasurer, stating the amount for which the party was entitled to a warrant, the amount deducted therefrom, and on what account, and directing the payment of .the balance; which warrant so issued shall be entered on the books of the treasurer, as for the amount the party was entitled to, but the balance only shall be paid.
(Section 13). No sale, transfer or assignment of any claim or demand against the State, or right to a warrant on the treasurer, shall prevent or affect the right of the Auditor to make the deduction and off-set provided in the foregoing section.

When construed it simply means that when the Auditor finds the claimant to whom a warrant is payable owes the State on any claim whatever, that a balance shall be struck, claimant required to pay the claim, and the balance if any, is to be remitted to claimant by warrant on the treasurer by the balance so found to be due.

- Section (13) provides that, no sale, transfer or assignment of any claim or demand against the State, or right to a warrant on the treasurer, shall prevent or effect the right of the Auditor to make the deduction and set-off as provided in Section (12), Supra.

It was the State Auditor’s duty to take set-off fr,om the relief orders which had been assigned to claimants. Sections (12) and (13) of Chapter (15) is the law of this State and is binding on the State Auditor. It is mandatory. Therefore the claimants when they accepted the various relief orders took them with direct notice of the provisions of Chapter (15). The State Auditor would have been derelict in his duty had he failed to enforce the above statutory provisions. He was under oath to support the constitution and the laws of this State. He had entered into a bond payable to the people of the State of Illinois for the faithful performance of his duties.

These claims cannot be allowed under any guise whatever and the complaint must be dismissed.

Other contentions urged, and the supporting arguments have been considered. Extension of this opinion by a discussion of the additional points made, is deemed unnecessary.

Award denied. Complaint dismissed.


source: Caselaw Access Project

author: Chief Justice Damron

license: Public Domain

text:
    (No. 3766
    John M. Durrett, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1943.

    Claimant, pro se.
    George F.. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Claimant seeks an award in the sum of $598,000.00. The complaint alleges that on November 21, 1938, claimant was forcibly seized and taken into custody without authority, of law in Randolph County, Illinois, immediately following the expiration of a sentence in the Illinois State Penitentiary located at Menard, Illinois, for violation of law imposed upon him by the Criminal Court of Cook County.

He alleges that he was seized, committed and confined in the Illinois Security Hospital from November 21, 1938, until December 18, 1941, at which time he was transferred to the Illinois State Hospital for Insane at Manteno, Illinois, from which he was released on March 30, 1942.

He alleges that all charges of insanity, nervous or mental disease, were without foundation, and that he has suffered great disgrace as the result of acts by the public employees of respondent.

The record discloses that on the 21st day of November, 1938, the claimant was declared to be insane by the County Court of Randolph County, Illinois, after a full hearing in said court;"that warrant of commitment was duly issued ordering said claimant to be delivered to the Superintendent of the Illinois Security Hospital for Insane at Menard, Illinois, which said warrant of commitment was duly executed and claimant was delivered to said institution.

Claimant remained in said Illinois Security Hospital by virtue of said order of commitment until December 4, 1941, at which time he was transferred to the Manteno State Hospital for Insane, Manteno, Illinois, under special order number 6972 dated November 29,1941. His confinement continued in the last named State Hospital until March 30, 1942, when he was released.

The Attorney General files a motion to dismiss this complaint for the reason that claimant’s complaint does not-set forth a claim which the State of Illinois, as a sovereign commonwealth should discharge and pay, in that claimant seeks an award predicated only on the basis of equity and good conscience, and not upon a legal or equitable basis established by either the decisions of the courts of this State, the Constitution or statute.

We have repeatedly held in this court that in the exercise of its governmental functions the State is not liable for the negligence of its servants or agents, in the absence of a statute making it so liable. Braun vs. State, 6 C. C. R. 104; Chumbler vs. State, 6 C. C. R. 138; Bucholz vs. State, 7 C. C. R. 241; Kelly vs. State, 9 C. C. R. 339; Hollenbeck vs. County of Winnebago, 95 Ill. 148; City of Chicago vs. Williams, 182 Ill. 135; Minear vs. State Board of Agriculture, 289 Ill. 549; Gebhart vs. Village of LaGrange, 354 Illl. 234.

And further it has been held by this court that the Court of Claims has jurisdiction to recommend an award only where the State woulct be liable in law or,in equity in a court of general jurisdiction if it were suable. Crabtree vs. State, 7 C. C. R., 207.

This claimant was duly committed by virtue of an order of commitment from the County Court of Randolph County, Illinois. The employees of the respondent at the time of said order of commitment cannot be held responsible to claimant for the actions, judgments and orders of a court of competent jurisdiction and by no stretch of the imagination would this court be justified in entering an award in this case.

‘ The motion of the Attorney General is allowed. Claim dismissed.


author: Fisher', J.

text:
    (No. 3600
    Charles Eggler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1943.

      Rehearing denied April 15, 1943.

    A. R. Ivens, for claimant.
    George F. Barrett, Attorney General; Robert V. 0strom, Assistant Attorney General, for respondent.
   Fisher', J.

Complaint was filed on March 27,1941, in which claimant, Charles Eggler, states that he was injured on September 24, 1940, while he was engaged in unloading bags of material of the approximate weight of 100 pounds each from cars to trucks; that in lifting said bags he sustained an injury to his back. Claimant further alleges that respondent furnished no medical, surgical or hospital treatment. That he earned Fifty. Cents ($.50) an hour. That he has one daughter who was 13 years of age at the time of the accident.

Claimant seeks to recover for first aid and all necessary medical care and attention; $$11.00 per week for temporary total disability since September 24, 1940; $11.00 per week for a period of eight (8) years for permanent partial disability; also a pension.

The record in this case consists of the complaint; report of the Division of Highways; transcripts of the evidence taken on September 5, 1941, October 23, 1941, February 2, 1942, and March 30, 1942; statement, brief and argument; supplemental statement, brief and argument; reply brief and argument filed by claimant; and statement, brief and argument filed by respondent.

Claimant, Charles Eggler, was employed by the State and is within the provisions of the Workmen’s Compensation Act.

The accident occurred on September 24, 1940. Claimant’s foreman had notice of the accident on the date it occurred and claimant’s daughter came to the Supervisor of Maintenance at Decatur, Illinois, about a week after the accident and reported it. On October 18, 1940, a representative of the Division of Highways visited the claimant’s home and discussed the accident with claimant. As all the provisions of Section 24 of the Workmen’s Compensation Act have been complied with, this court has jurisdiction.

The evidence clearly shows that the accident arose out of and in the course of claimant’s employment.

Claimant takes the position that the temporary total disability still continues, and respondent claims that it ceased on or before September 5, 1941. Dr. Stuart Wood, who testified in behalf of claimant, stated that he examined claimant on September 17, 1941, and that he had a “very slight disability with reference to light work that does not involve much bending.” Dr. John E. Madden was asked on direct examination on September 5, 1941—

Q. “The injury that you have described as you found it in your judgment, would incapacitate a person for approximately what period?”
A. “Sometimes to a year at least, and in some cases not quite so long.”

Dr. Clyde H. Teaman, testifying on the same date, was asked—

Q. “The injury as revealed in the picture of November in your judgment would ordinarily incapacitate a person for how long approximately?”
A. Well, six months to a year, six months is rather a minimum.”

Dr. Henry B. Thomas, who testified on behalf of respondent, stated that he examined claimant on December 18, 1941, and that he could do light work. Claimant also testified that his wife was employed; that since the accident he has helped her clean house; helped do the family washing; and gets the meals.

From all the evidence, this court is of the opinion that the position taken by respondent, that the period of temporary total disability ended on September 5, 1941, is reasonable, and the court so finds.

Claimant also seeks to recover for permanent partial disability; also a pension. Claimant testified that for some years prior to the accident he had no regular employment; but did some janitor work which did not involve heavy lifting, cleaned wall paper, and did odd jobs. ' ,

The evidence would indicate that claimant was partially disabled after September 5, 1941, but that there should be no permanent disability. There is, however, nothing in the evidence on which this court could base an award for partial disability, and this part of the claim is therefore denied.

Claimant is entitled to compensation for temporary total disability from September 24, 1940, to and including September 5, 1941, which is a period of 49 3/7 weeks. He earned Fifty Cents ($.50) an hour, eight (8) hours a day, but as employees in similar capacities worked less than two hundred (200) days a year his compensation will be based on compensation of Eight Hundred Dollars ($800.00) annually. This would make his average weekly wage $15.38 and he would be entitled to 55% of this, or $8.46 per week. As claimant had one child under the age of 16 years at the time of the accident this weekly compensation would be increased to $11.00 per week under Sub-section (j) of Section (8), and he is therefore entitled to this amount for 49 3/7 weeks, or the sum of $543.71 for temporary total disability.

The evidence also shows that claimant incurred the following obligations: Hospital services $124.50, medical services $16.00, x-rays $30.00 — a total of $170.50.

Respondent, in its brief, states that the evidence also shows that claimant expended $200.00 for necessary braces but this court can find nothing in the evidence to substantiate this statement.

An award is therefore entered in favor of claimant for the sum of Seven Hundred Fourteen and 21/100 Dollars ($714.21), being $543.71 for temporary total disability and $170.50 reimbursement for funds expended for hospital services, medical services and x-rays; all of which has accrued and is payablei forthwith.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such 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 for in such Act.


author: Chief Justice Damson*

text:
    (No. 3761
    Roy Fitzgerrell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1943.

    John R. Morrow, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damson*

delivered the opinion of the court:

The complaint in this case was filed October 29,1942, and alleges that on the 14th day of July, 1941, the claimant was employed by respondent in the Department of Public Welfare at a Kankakee State Hospital in Kankakee, Illinois. That his duties consisted of supervising the work in the laundry of said institution and while in the course of his employment as such supervisor he was, on the 21st day of May, 1942, at about the hour of 7:30 A. M. in the act of adjusting a bar on one of the mangles when his right hand caught between two cogs of said mangle and completely severed the first phalange of the second finger of the right hand. That immediate notice of said injury was given to the respondent; that medical and surgical treatment were given claimant by a staff physician.

It is further alleged that he was receiving the sum of $78.75 per month with full maintenance and that said maintenance is of the value of $24.00 per month, making an aggregate wage of $102.75 per month; that his average weekly wage therefore was-$23.71 and that his compensation rate amounted to $11.86. Claimant makes no claim for temporary total disability or for medical or hospital expenses. The Attorney G-eneral files brief, statement and argument on behalf of the respondent, and the claimant waives his right of reply.

It is conceded by the respondent that the amount of wages alleged in the complaint is correct and that all provisions of Section (24) of the Workmen’s Compensation Act have been complied with.

Upon a full consideration of the record we find that claimant is entitled to an award for this injury. There being no dispute between the claimant and the respondent as to the nature and extent of claimant’s injury and no dispute as to the proper notice having been given to the respondent we make the following award:

An award is therefore made in favor of claimant, Koy Fitzgerrell, in the sum of $228.31 as provided under Section (8), Paragraphs (e) and (L) of the Workmen’s Compensation Act for the loss of the first phalange of the second finger of the right hand all of which has accrued and is now payable in a lump sum.

This award being subject to the provisions of an Act entitled: “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the maimer provided for in such Act.


author: Eckert, J.

text:
    (No. 3738
    Herman Gallimore, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1943.

    Roy A. Ptacin, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

On June 22, 1942, the claimant, Herman Gallimore, was employed by the Department of Public Welfare of the State of Illinois as an attendant at the Chicago State Hospital. While separating two mental patients who were fighting, one of them struck claimant on the right hand with a shoe, causing a fracture of the head of the metacarpal of the right index finger.

At the time of the accident, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident was given, and claim for compensation was made, within the time provided by the Act. The accident arose out of and in the course of the employment, and respondent furnished all necessary medical arid hospital services. Claim is made for permanent injury to claimant’s right hand.

Claimant testified that the hand is now stiff and painful; that he is unable to use it as he did prior to the accident; that he is unable to twist, grasp or lift with it. Dr. Albert C. Field, called as a witness for claimant, testified that on August 6, 1942, he examined claimant, and took an x-ray picture of his right hand. The x-ray showed an irregularity in the second metacarpal, a shortening caused by a backward displacement at the phalangeal joint. The witness found a limitation of extension at the index finger, and a limitation of flexion of about fifteen or twenty degrees. There was an enlargement over the second metacarpal, and claimant lacked one-half inch of approximating the tip of the index finger to the palm of the hand. On comparison, the left index finger was shorter than the right, due to the deformity in the second metacarpal. Dr. Field stated that the condition was permanent. Dr. Louis Cisman, called as a witness for the respondent, was in complete agreement with Dr. Field.

From the record it appears that claimant has suffered a thirty per cent permanent partial loss of the use of his right hand. Under the provisions of the Workmen’s Compensation Act, for such disability, he is entitled to fifty per cent of his average wuekly wage for a period of fifty-one weeks. At the time of the injury, claimant’s average yearly earnings were $1,044.00, and his average weekly wage $20.08. He is therefore entitled to an award of $512.04; and since the accident occurred after July 1,1941, this amount must be increased ten per cent, making a total sum of $563.24.

Award is therefore entered in favor of claimant for said sum of $563.24, payable as follows:

1. The sum of $408.48 accrued and payable forthwith.

2. The balance of $154.76 payable in weekly installments of $11.04 per week, beginning March 15, 1943, for a period of fourteen weeks, with a final payment of $.20.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation ■ to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof, ’ ’ approved June 30th, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in .such Act.


text:
    (No. 3770
    City of Kankakee, a Municipal Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1943.

    Victor N. Oardosi, for claimant.
    George F. Barrett, Attorney General; Robert V. Qstrom, Assistant Attorney General, for respondent.
   Eckert, J.

Prior to the year 1939, the City of Kankakee, Illinois, constructed a sewage treatment plant and outlet sewer for the treatment of the sewage of the City of Kankakee. The untreated sewage of the Kankakee State Hospital was collected by, and flowed through the outlet sewer so constructed, and the sewage was then treated by this plant. The Department of Public Welfare of the State of Illinois, prior to 1939, had been authorized to, and had entered into an agreement with the City of Kankakee, for the treatment of the Kankakee State Hospital, for its share of costs of operation and maintenance of the treatment plant and sewerage works, and the cost of construction of the sewage treatment plant and the sewers was shared by the City of Kankakee and the Department of Public Welfare.

In 1939 certain additional work was needed at an estimated cost of $22,000.00. By Act of the General Assembly (Senate Bill No. 520, filed July 25, 1939) the Department of Public Welfare was authorized and directed to enter into an agreement and contract with the City of Kankakee for the payment of a part of the cost of construction of such additional work and equipment, the share to be paid by the Department of Public Welfare .to the City of Kankakee not to exceed the sum of '$9,100.00. By the same Act, the sum of $9,100.00, or so much thereof as might be necessary, was-appropriated to the Department of Public Welfare for the purpose of paying the State’s share for such additional work,, as follows:

“For the State’s share of the construction, of automatic screening plant and -superstructure for hospital and south side sewage (at West Kankakee Diversion Chamber)...............................................$5,475.00.
“For the State’s share of the construction of roadway surfacing (6,000-square yards); work shop, garage and storeroom building; concrete sidewalks, curbs, and gutters at plant; continuation of drainage and landscape program; apparatus and materials for experiments on chemical precipitation; miscellaneous automatic gates, flood control gates and river water distribution lanes ...........................................................$3,625.00.”

The entire first portion of this appropriation, and $464.73 of the second portion, was unexpended when the appropriation lapsed.

Pursuant to this Act of the G-eneral Assembly, the State of Illinois, by its Department of Public Welfare, entered into-a contract with the City of Kankakee, Illinois, on November 10, 1939. By the terms of this contract, the State agreed to .pay the City of Kankakee 73% of the total cost of the construction of an automatic screening plant and superstructure for the Kankakee State Hospital and south side sewage, the State’s share not to exceed the amount of the first item of the appropriation, or $5,475.00. The State also agreed to pay one-fourth of the total cost of other additional work as itemized in the appropriation, the State’s share not to exceed the amount of the second item of the appropriation, or $3,625.00. The City of Kankakee agreed to pay the percentage difference between the cost and the State’s share, and to proceed with the needed improvements.

The City of Kankakee performed the contract in accordance with its terms, and the work as completed was approved by the Department of Public Welfare. The Department, however, failed to pay the City of Kankakee the moneys due under the terms of the contract, because the claim of the City of Kankakee was not received by the Department until after the appropriations under the Act had lapsed.

The Department of Public Welfare, after making an audit on March 30th and 31st, 1942, found the amount due the City of Kankakee to be $3,284.97. Of this sum, $3,184.98 is due for the State’s share of the construction of the automatic screening plant and superstructure, and $99.99 is due for the State’s share of the remaining work. Both items are therefore clearly within the respective items- of the lapsed appropriation.

Claimant has performed services for the respondent in accordance with a contract duly authorized by the General Assembly; claimant' submitted its statement of costs and charges to the respondent within a reasonable time and has not received payment; such non-payment is due to no fault on the part of the claimant; when the charge was incurred there remained a sufficient unexpended balance in the appropriations from which payment could have been made. Claimant is therefore entitled to an award. (Rock Island Sand and Gravel Company vs. State of Illinois, 8 C. C. R. 165; Elgin, Joliet and Eastern Railway Company vs. State of Illinois, 10 C. C. R. 243.)

An award is therefore made in favor of the claimant in the sum of $3,284.97.


author: Fisher, J.

text:
    (No. 3763
    Henry Koppein, Doing Business as Koppein and Company and as Koppein’s Service, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1943.

    Ralph P. Sheridan, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

Claimant sold to respondent for the Highway Division of the Department of Public Works and Buildings at Eleroy, Illinois, the following merchandise:

May 7, 1941 — 60 Gallons of Kerosene................................ $9.00
May 17, 1941 — 13 Gallons of Gasoline.................................. 2.33
May 21, 1941 — 10 Gallons of Gasoline................................. 1.79
May 22, 1941 — 12 Gallons of Gasoline.........................'........ 2.15
Total.....................................................•.....$15.27

Claim for $15.27 was filed on November 9, 1942, and, by stipulation between claimant and respondent was filed a report of the Division of Highways, by M. K. Dingle, which report admits that

“The above claim arose as a result of claimant having furnished gasoline and kerosene to the Division of Highways and not scheduling its invoice in time to be paid in due course. The quantities of materials shown on the copies of invoices included in the complaint as exhibits are correct, the prices are as previously agreed upon, the delivery dates correct, and the materials were received and used by the Division of Highways. An appropriation was in existence and moneys available therein for payment of claimant’s invoices had they been scheduled in apt time.”

We have heretofore held that where materials or supplies have been properly furnished to the State and a bill theréfor has been submitted within a reasonable time, but the same was not approved and vouchered for payment before the lapse of the appropriation from which it is payable, without any fault or neglect on the part of the claimant, an award for the reasonable value of such materials or supplies will be made, where, at the time the expenses were incurred there were sufficient funds remaining unexpended in the appropriation to pay for the same.

An award is therefore entered in favor of the claimant, Henry Koppein, doing business as Koppein and Company and' as Koppein’s Service, in the sum of Fifteen and Twenty-seven/One Hundredth Dollars ($15.27).


text:
    (No. 3626
    William Moulden, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1943.

    L. Earl Baoh, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

Claimant, William Moulden, seeks benefits under the Illinois Workmen’s Compensation Act for injuries suffered to his hands, head, face and neck; for partial loss of the use of his arms; for partial loss of the use of his legs, and for disfigurement. The claim is based on injuries alleged to have arisen out of and in the course of his employment as motor-grader operator employed by the Division of Highways.

The complaint filed August 19, 1941, alleges

That claimant, while employed by respondent, on the 21st day of August, 1940, was engaged in his duties grading shoulders and ditches on U. S. Route No. 45, one-half mile north of Loda, Illinois, when the grader he was operating overturned, pinning claimant beneath it;

That gasoline escaped from the gasoline tank, spreading over claimant and the tractor which caught fire, severely burning and otherwise injuring claimant;

That he was removed to the hospital at Paxton, Illinois, where he received treatment for two weeks;

That he was then transferred to St. Joseph’s Hospital at Bloomington and received treatment for two weeks;

That all medical and hospital treatment has been paid by the State;

That claimant received $1,560.00 for the year immediately prior to the accident;

That he received $236.73 as temporary total compensation ;

That he has received no payments for permanent disability;

That he had no children under the age of 16 years at the time of the accident.

The record consists of the complaint, report of the Division of Highways, transcript of the evidence, and statement, brief arid argument of counsel.

Respondent had immediate notice of the accident. Complaint was filed in apt time and it appears that all requirements of the Workmen’s Compensation Act have been complied with, and this court has jurisdiction.

Claimant was an employee of the State of Illinois at the time of the accident and, as such, is entitled to the benefits of the Workmen’s Compensation Act.

Claimant returned to work on November 20, 1940, for the Department of Public Works and Buildings. He was paid temporary total disability in the sum of $18.21 per week from August 21 to November 19, 1940, a total of $234.00, which was an overpayment of $38.95, which overpayment should be deducted from award entered herein.

The only question before this court is the amount of compensation due claimant. • Claimant seeks an award for permanent disability and for disfigurement.

Respondent contends that claimant is entitled to compensation solely for the partial loss of the use of his left hand and that no compensation can be paid for disfigurement to claimant’s face because of the provision of Section 8 of the Workmen’s Compensation Act, Sub-paragraph (c) which provides :

“Provided, that no compensation shall be payable under this paragraph where compensation is payable under paragraph (d), (e) or (f) of this section.”

Respondent relies strongly on the case of Chicago Home for the Friendless vs. Ind. Comm., 297 Ill. 286, where the court said:

“Where an employee is disabled and disfigured by the same injury, he is not entitled to recover compensation for the disfigurement.”

In that case, Kate Budnick, a laundress, caught her left hand in a mangle and crushed it badly, necessitating the amputation of her fingers. An infection developed which spread and involved the muscles of mastication which left the claimant with a misshapen face and lower jaw. The court said:

“We have held that if an employee receives two injuries, one that disables him and another that causes disfigurement of his hands, face or head, he is entitled to compensation for the disability and the disfigurement.”

The court further said:

“On the other hand, we have held that where an employee is disabled and disfigured by the same injury he is not entitled to recover compensation for the disfigurement. The only question presented for decision is, therefore, whether defendant in error suffered one or two injuries. If at the time her hand was crushed in the mangle she had fallen into the machinery and disfigured her face there would be no question but that she would be entitled to compensation for the injury to the hand and the disfigurement to the face.”

The court further held, in substance, that the claimant was compensated for the loss of the left hand and also was paid compensation for the disability resulting from the sickness which followed and that having been compensated for disability resulting from the sickness she could not also be compensated for disfigurement resulting from the sickness for which she had been compensated under another section of the Workmen’s Compensation Act.

This question was reasoned more fully in the case of Wells Brothers Company vs. Ind. Comm., 285 Ill. 647, in which case, a workman while working in a well or caisson about 90 feet below the surface, was injured by an explosion of gas in the caisson about the head, neck, arms, hands and face. As a result of these burns his face and head were seriously and permanently disfigured. He received other injuries, from which he was permanently disabled. The only question raised in that case was whether the employee was entitled to compensation both for disfigurement and partial disability under Paragraph (c), Section 8 of the Workmen’s Compensation Act, which reads:'

“For any serious and permanent disfigurement to the hand, head or face, the employee shall be entitled to compensation for such disfigurement the amount fixed by agreement or arbitration in accordance with the provisions of this act, which amount shall not exceed one-quarter of the amount of compensation which would have been payable as a death benefit under paragraph (a), section 7: Provided, that no compensation shall be payable under this paragraph where compensation is payable under paragraph (d), (e) or (f) of this section: And, provided, further, that when the disfigurement is to the hand, head or face, as a result of an injury for which injury compensation is not payable under paragraph (d), (e) or (f) of this section, compensation for such disfigurement may he had under this paragraph.”

The court held that under the Act of 1913 there could be no award for disfigurement under Paragraph (c), Section 8, and also for permanent partial incapacity. Paragraph (c) of the Act read the same then as it does now with the exception of the second proviso, commencing, “And provided further,’’ which was added by amendment in 1915. The court held in that case that

“It is the cardinal rule in the construction of a statute that it should be so construed that no clause, sentence or word shall be superfluous, void or insignificant; that the statute should be so construed, if possible that, every sentence and word shall be given its ordinary meaning and acceptation.”

The court further held that the second proviso, added by the amendment of 1915 limits the first proviso in such a way as to cover a case “such as we are here considering, — that is to say, where a man sustains injuries which disfigure his face or head but do not incapacitate him and at the same time sustains injuries to other parts of the body which do result in disability, then he can recover for both. To say that the last proviso simply sets out affirmatively the inference to be drawn from the first proviso is unreasonable.” The court further said:

“The reasonable and natural construction of the Act as now amended is that compensation may be awarded if injuries result in permanent partial incapacity, as provided in paragraphs (d), (e) and (f), but if there are also injuries, — not those compensated in paragraphs (d), (e) and (f), — resulting in permanent disfigurement to the hands, head or face, they may also be compensated for under the second proviso of paragraph (c) Section 8.”

In the case of International Coal Co. vs. Ind. Comm., 293 Ill. at page 531, the court said:

“It is urged that the Industrial Commission has awarded compensation for disfigurement and for the loss of use of- the same member. The Commission has no power to award compensation for disfigurement of a member and also for the loss of use of such member. The record in this case, however, shows that an award was made for disfigurement of the face, while the award for a loss of use applies only to the eyes and arms. This award does not; therefore, contravene the rule.”

It would appear, therefore, that claimant is entitled to compensation for disfigurement to his face and for such disability and loss of the use of his hands as the evidence disclosed.

Claimant alleges that he has no children under the age of 16 years, but the evidence discloses that claimant’s wife had two children of another marriage; also, that whereas the former husband had been ordered to pay alimony, yet the claimant was called upon to render the necessities of life to these children. Respondent feels that the claimant in this case stood in loco parentis and the children should be eonsidered as dependents, and relies upon the case of Faber vs. Ind. Comm., 352 Ill. 115, and Wolfe vs. State, 10 C. C. R. 469.

In these cases the court held that the test of whether one stood in the position of loco parentis was whether such child was wholly dependent upon such parent for support. In this case the children of the wife of claimant, while receiving a major portion of their support from claimant, were not wholly dependent upon claimant for support but were receiving some support from their father who was, by order of court, ordered to support them. The evidence shows that while not paying the full sum of money ordered to be paid for their support, a portion of the money was paid, and there is no evidence to show the provisions of the court decree in regard to the children. It must be presumed that some disposition of the question of the care, custody and control of the children was made, and while we should like to increase our award for the benefit of the children, there is no basis upon which we could do so with the facts as they are before us. The law provides an increase in an award where there are minor children, and this position is predicated upon the theory that the children are wholly dependent upon claimant for support. This is not the case here, nor is there adequate showing that the claimant stands in loco parentis to the children of his wife by a former marriage.

The evidence discloses that claimant suffered permanent partial loss of the use of his left hand. Claimant testified, (page 4, transcript of evidence) :

“I cannot close my left hand up to make a fist; and for gripping small articles in the hand, I cannot do that; or using small wrenches and stuff.” In cold weather it bothers me. If I am out any length of time I have to have an extra glove. It gets numb and stiff.”

Claimant testified further that he could only close the fingers to the palm of his hand by force.

Dr. W. Gr. Ball testified that claimant suffered first, second and third degree burns of the left hand and forearm; first, second and third degree burns of the right hand; first and second degree burns of the head and face, and first, second and third degree burns on the anterior surface of the right and left knees. Dr. Ball further testified that the burns left permanent scars and disfigurement to parts of the body, head and face; that there is no restriction in the use of the leg, right arm and hand, as a result of these burns, but that “there is a limitation of flexion in the digits of the left hand.” Dr. Ball further testified that “the burn was extensive enough that the area involved on the back of the hand was replaced by connective tissue, which is not as elastic as skin and, for that reason Unfits the power of flexion.” Testifying further, Dr. Ball was asked:

Q. Do you have an opinion as to about how much difference there is in the grip of Mr. Moulden’s two hands?
A. It would be a guess, frankly. I have no way of measuring it accurately. In gripping the full hand they'compare fairly equal, but on gripping a single finger there is approximately 50% more pressure in the right hand.

Dr. Ball further testified that claimant suffered first, second and third degree burns on the left hand and forearm; right hand; both knees; and first and second degree burns on the head and face, and that all of the burns left permanent scars.

Claimant, by leave granted, appeared in court at this March term, 1943, for examination relative to the nature and extent of the disfigurement sustained by him and, after viewing the disfigurement resulting from the injury and considering the entire record, it is our opinion that claimant sustained a 30% loss of the use of his left hand and permanent disfigurement to his face and right hand, for all of which claimant is entitled to recover compensation under the provisions of the Workmen’s Compensation Act.

Claimant’s average weekly wage was $27.59, and Section 8, Paragraph (E 12) of the Compensation Act provides for the payment of 50% of the average weekly wage for 170 weeks, to be increased 10% (Section 8, Paragraph 3 I) for the loss of the use of a hand.

Fifty per cent of claimant’s average weekly wage amounts to $13.80, plus 10% equáls $15.18x170 or $2,580.60, 30% of which amounts to $774.18, which claimant is entitled to receive for partial loss of the use of his left hand; also the further sum of $45.54 for permanent disfigurement to the head and face, from which must be deducted the sum of $38.95 overpayment heretofore made to claimant, making a net amount remaining due the claimant of $780.77.

Award is therefore entered in favor of the claimant for the said sum of $780.77, payable as follows, to-wit:

(1) The sum of $607.19 representing compensation at the rate of $4.55 per week (30% of $15.18) for a period of 132 weeks accrued to March 5, 1943, plus the additional award of $45.54 for permanent disfigurement to head and face, minus the overpayment of $38.95 for temporary disability, is payable forthwith.

(2) The balance of said award, to-wit: The sum of $173.58 is payable in thirty-eight weekly installments of $4.55 each, commencing March 12,1943, and one final installment of $0.68.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such 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 for in such Act.


author: FlSHEB, J.

text:
    (No. 3383
    Susanna A. Ritter and Susanna A. Ritter, Gertrude Tilley, Helen Catron, Elizabeth Ullrich, William Ritter, Charles Ritter, Loretta Koenegstin, Leo Ritter, Marcella Terry, Surviving Heirs of George Ritter, Deceased, Claimants, vs. State of Illinois, Respondent.
    Opinion filed March 9, 1943.

    George W. Dowell, for claimants.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   FlSHEB, J.

Claimants allege ownership of “a part of the Northeast quarter of the Northeast quarter of Section 23, Township 5 South, Range 3 West of the Third Principal Meridian, Perry County, Illinois,” and seek damages in the sum of Three Thousand Dollars ($3,000.00) to adjacent property resulting from the construction of State Bond Issue Route 13, Construction Section 175,.through and parallel a part of,said land.

The record consists of the complaint, amended complaint, copy of deed of dedication, copy of plat attached and a part of said deed, motion to dismiss by respondent, affidav-it by M. K. Lingle, Engineer of Claims, State of Illinois, Department of Public Works and Buildings, in support of said motion to dismiss, and statement, brief and argument on behalf of respondent on motion to dismiss.

From the record, it appears that on September 9, 1933, George Ritter and Susannah A. Ritter, husband and wife, executed and delivered to the People of the State of Illinois, a deed dedicating a part of the lands described in the complaint herein, which deed was duly recorded November 28, 1934, in the office of the Recorder, Perry County, Illinois.

There is no allegation that the construction was not properly done or that the same was not in accordance with the plans and specifications therefor.

The dedication of the land involved was for the purpose of a public highway and, where there is a dedication for a certain purpose, the law presumes that the consideration for the dedication is based not only on the value of the land dedicated but also includes damages sustained to contiguous land of the owner by reason of the improvement.

Baber vs. State, 9 C. C. R., 115.
Siekman vs. State, 10 C. C. R., 286.

There is no allegation, or showing, that the construction of the said highway or use of the land was of a nature or purpose other than that for which it was dedicated.

Subsequent to the deed of dedication and prior to the construction of the said highway, George Ritter died, leaving these claimants his heirs at law.

Susanna A. Bitter joined in the deed of dedication, and all claimants herein derived their interest in the land as heirs of George Bitter, deceased, who, during his lifetime, dedicated the land for the purpose for which it was used. As such heirs, claimants must take the land subject to conditions created by the deed of dedication executed by their predecessor in title.

For the reasons cited herein, the motion of respondent to dismiss, must be allowed, and the complaint is accordingly dismissed.


text:
    (No. 3752
    Daniel W. Soper, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1943.

    Deutch & McMunn, for claimant.
    George F. Barrett, Attorney General; Bobert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

Claimant, by his claim filed September 22, 1942, alleges that he resides on a small farm immediately west of the corporate limits of the City of Canton, Illinois, where he is engaged in the raising of livestock and other work, on which farm he has a barn and various other outbuildings.

That about three hundred (300) feet south of said buildings is a natural water-course commonly called Big Creek, which flows west and then turns south.

That approximately five hundred (500) feet south of the said buildings the said creek by means of a bridge flows under a paved road, namely, Illinois State Bond Issue Boute No. 9.

That for more than ten (10) years claimant kept livestock, lumber and other personal property in and beside said barn and outbuildings, and that although at intervals the said creek would overflow, it would never do so to the extent that it would damage claimant’s property.

That in the fall and winter of 1941 and in the winter of 1942 the respondent, by its Division of Highways, was reconstructing a part of the said highway, and as a part of said reconstruction, a new bridge and viaduct was being erected by the said Division of Highways over said Big Creek.

That in the month of November, 1941, respondent removed said bridge and in its stead unlawfully, negligently and carelessly placed two (2) drain tiles, each five (5) feet in diameter, for the said creek to flow through and under the said Illinois State Bond Issue Route No. 9.

That the respondent knew, or should have known, that the drain tiles were insufficient to carry the waters under the said road and, as a result thereof the waters of the said creek overflowed, causing damage to claimant’s property in the sum of Two Hundred Fifty-nine and 75/100 Dollars ($259.75).

The record consists of the complaint, motion of respondent to dismiss, statement, brief and argument of respondent in support of said motion to dismiss, and brief and argument of claimant.

Respondent argues that the State is not liable for damages to property resulting from the negligent or wrongful acts or conduct on the part of the Division of Highways in failing to provide adequate drainage or interfering with an existing system of drainage; that the State, in its sovereign capacity in carrying out this governmental function cannot be' held liable for the negligence of its officers or agents. With this principle, this court has repeatedly held.

McComb vs. State, 11 C. C. R. 580.

The claim filed in this case is predicated and based entirely on the “unlawful, negligent and careless” acts of respondent and, therefore, does not state a claim which the State of Illinois, as a sovereign commonwealth, should discharge and pay.

Claimant, in his brief,.departs from the claim as filed and argues Article II, Section 13 of the Constitution of the State of Illinois, which provides that private property shall not be taken or damaged for public use without full compensation.

With this principle this court is in full agreement and has consistently held, but it cannot be applied to a claim that is based on the “careless and negligent” acts of respondent through its agents and employees.

The motion of respondent to dismiss is therefore allowed, and the claim filed herein accordingly dismissed.


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    (No. 3373
    Theodore H. Vatz, et al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1943.

    Henry Blumberg, for claimants.
    George F. Barrett, Attorney General; Egbert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

From the stipulation of facts herein it appears:

1. That Theodore H. Vatz and Leo M. Alexander, co-partners, doing business as the Alexander Supply Company, hereinafter referred to as claimants, on December 6, 1937, pursuant to a duly authorized and issued purchase order, No. B-123799, delivered to Peoria State Hospital, a charitable institution, operated by the respondent, certain items of merchandise appearing in a bill of particulars marked Claimants’ Exhibit “A,” and attached to the complaint filed herein.

2. That the contract price, which was the usual, customary and reasonable value of the items of merchandise, amount to $166.25.

3. That at the time said purchase order was issued arid the merchandise was delivered to, and received by, the Peoria State Hospital, there was remaining unexpended in the appropriation from which said obligation was payable, a sufficient balance to pay for the same.

4. That the officials of the Department of Public Welfare have not v'ouchered for payment and declined so to do, that portion of the purchase order covering syringes, in the total amount of $87.00; that the officials of said Department insist that it rejected as unsatisfactory and returned to claimants the syringes aforementioned; the said department has no receipt from the carrier showing that said syringes were shipped or mailed to the claimants, or delivered to a common carrier or TJ. S. Post Office for shipment and mailing to the claimants; the claimants deny that said syringes were ever received by them and that said department is unable to furnish any proof that said syringes were delivered to claimants or to anyone on their behalf.

5.' That claimants have been paid the contract price for the remaining items appearing on said purchase order in said bill of particulars; that a warrant in the sum of $18.86 was issued to claimants in payment thereof; and that cashing of said warrants by claimants will in no manner bar or prejudice the claimants in prosecuting this claim. The claimants have not been paid the sum of $87.00 which represents the contract price of syringes or any part thereof. ■ The claimants hereby reduce their claim from $106.25 to $87.00 which latter amount represents the contract price of the syringes.

Upon full consideration of the record we find: It is undisputed that claimants did actually deliver the goods as specified in the order.

Respondents contention that said syringes were returned to claimants is an affirmative defense and the burden is on the respondent to establish that fact by a preponderance of the evidence.

Here we find under said stipulation that “said department has no receipt from a carrier showing that syringes were shipped or mailed to the claimants, or delivered to a carrier or the U. S. Post Office for shipment or mailing to the claimants. ’ ’

In the absence of such proof the evidence preponderates in favor of claimant. Claimant has been deprived of its goods and merchandise. No proof is in this record that the syringes were returned or received by claimant, and claimant denies receipt thereof.

In equity and good conscience this claim should be allowed and under the law claimant is entitled to an award.

An award is therefore entered in favor of claimants in the sum of $87.00 which represents the contract price of the syringes.


text:
    (No. 3305
    Woodrow Vick, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1943.

    Roy R. Helm, for claimant.'
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

This claim was filed August 3, 1938 for benefits under the Illinois Workmen’s Compensation Act as the same is applicable to State employees. The claim is based on injury alleged to have arisen out of and in the course of claimant’s employment as a laborer while employed by the Division of Public Works and Buildings of the State of Illinois.

From the record, it appears that on August 11, 1937 claimant, while engaged in his duties as an employee of the Division of Public Works and Buildings, was constructing a guard rail fence on Route No. 45 north of the City of Brook-port, Illinois. That in such employment he was required to set posts in post holes, and while so engaged he bruised his right hand and was struck on the right knee. He was removed to his home in Brookport and later to Fisher Hospital in Metropolis for treatment, and that he was later taken to the I. C. Hospital in Paducah, Kentucky. That the Department of Public Works and Buildings had immediate knowledge of the injury, and that the accident arose out of and in the course of his employment.

The complaint was filed in apt time, the State had sufficient notice and, therefore, this court has jurisdiction.

Claimant seeks an award for temporary total disability; for permanent incapacity; for total, complete and permanent loss of the use of his right leg; and for moneys expended for hospital, nursing and medical services.

The record consists of the Complaint, Report of the Department of Public Works and Buildings, Transcript of the Testimony, the Abstract of Record, and Statement, Brief and Argument of respective counsel. ' *

Claimant alleges that in setting, removing and placing-guard rail posts, his knee was injured and his right hand bruised. The evidence shows that an infection later developed which resulted in a stiff knee, and claimant alleges the complete loss of the use of his right leg. Dr. J. H. Gann, Brookport, Illinois, to whom claimant was first taken, testified that when first examined he found claimant suffering from what “looked to be a bruise on the palm surface of his right hand and also some swelling of the right knee.”

Dr. W. A. Gray of Metropolis, Illinois, was later engaged to treat claimant because of the illness of Dr. Gann. There is much testimony as to this injury, its cause and result, and, as respondent points out, the testimony of Dr. Gray is in considerable confusion.

Respondent contends that there is insufficient proof that claimant was injured in the course of his employment and, therefore, the claim should be dismissed.

It appears that a representative of respondent called on Dr. Gann, as the following testimony of Dr. Gann appears on page 48 of the transcript of evidence:

“Q. Did you discuss with. Mr. Colclasure (claimant’s immediate superior) both the hand and the knee injury?
A. Well, not to a great extent any more than when he stated fill out the diagram, I just put down about the hand and X said what about this knee, he has something wrong with it, did you know it and he said just put down the hand. I said, ‘Don’t you think we should mention the knee?’ and he said don’t include it and I didn’t. That was the report that went into the department. The best I recollect the one I filled out on the porch we discussed the knee business and he told me not to put it on that report and I didn’t put it on any report.
Q. Now, you say that was either the same day or the following day?
A. Yes.
Q. You don’t remember which?
A. I wouldn’t be very positive. He told me says, well, says no use to put that in because this is what we are sending in and should be sent in and the State wouldn’t pay for those things anyway, and I says, whose going to pay me for the work. He says Woodrow will have to pay you and he says the State will pay you for your examination. And I asked if the State wouldn’t pay me for anything hereafter. I wanted to know who was going to pay me. I had done a lot of State work and I always had orders from somebody that I have the authority to do the work.”

On page 41 of the Abstract of Evidence, Dr. Gray, on cross-examination:

“Q. Doctoi", later on that same day didn’t the representative report to you that he was unable to discover any accidental injury and therefore the State would not appear to be liable and requested that you inform Mr. Vick to that effect?
A. I don’t recall him asking me to inform him, I understood that he informed him himself.
Q. He did discuss the necessity of informing Mr. Vick to that effect to you?
A. Yes, he mentioned statements in that regard.”

It seems from this testimony that the person who investigated this claim on behalf of the" Department assumed the responsibility to determine that there was no liability on the part of respondent to pay compensation and did not pursue the case for the purpose of presenting pertinent facts that would be helpful to the court in arriving at a just and fair decision. Respondent presents no evidence in the case.

We admit that the evidence offered by claimant leaves much unexplained, yet there is proof of certain facts that we cannot ignore. Claimant testified that he hurt his knee and bruised his hand while working for the Division of Highways on August 10, 1937, and Dr. Gann who first treated claimant on August 11, 1937 testified; (page 50, Transcript of Evidence.)

“Q. Based on the history of the case as you received it from him and your personal examination and individual diagnosis combined all those three is it your opinion that it was an injury or a disease?
A. My opinion is that it was an injury.”

Dr. Gray testified (page 37, Transcript of Evidence) that in his opinion claimant’s condition was caused by an injury and that claimant has a permanent stiffness of the .right knee.

Respondent contends that claimant’s injury could have been caused by a disease. This is very true — it could have been — but there is no proof of any disease and there is no evidence by respondent to challenge the testimony of claimant and the doctors who attended him. We are compelled, therefore, to find that claimant was injured in the scope of his employment and that he is entitled to compensation as provided in the Workmen’s Compensation Act.

According to the record, employees engaged in a similar capacity work less than 200 days a year. Claimant earned 50c an hour, worked an 8 hour day; thus, earned $4.00 a day. Under Section 10 of the Workmen’s Compensation Act, claimant would be entitled to compensation figured on a basis of $800.00 a year, or an average weekly salary of $15.38. His temporary total disability is admitted by claimant to be 37 ' weeks. He is entitled to 50% of his average weekly wage for 37 weeks, or $7.69 x 37, total $284.53.

The claim for partial incapacity must be denied.

Claimant also seeks ah award for the total, complete and permanent loss of the use of his right leg.' The evidence shows that the right knee was ankylosed but that the leg was' otherwise uninjured. Claimant still has the use of the leg, but its full use is impaired. It would seem reasonable that claimant has sustained a 40% loss of the use of his right leg, and he is entitled to compensation on this basis.

Section 8 (E 15) provides for the loss of a leg or the permanent and complete loss of its use, 50% of the average weekly wage during 190 weeks. $7.69 x 190 amounts to $1,461.10. Forty per cent of this amount is $584.44, which claimant is entitled to receive for the partial loss of the use of his right leg.

Claimant expended for hospital, nursing services and medical supplies, the sum of $260.54, for which sum he should, be reimbursed.

It appears from the record that the charges of Dr. Gray and Dr. Gann are customary and reasonable charges for services performed, and have not been paid. An award should, therefore, include the charge of Dr. W. A. Gray in the sum of $326.00 and Dr. Joseph H. Gann in the sum of $12.00.

Claimant is, therefore, entitled to an award for

Temporary total disability.....................'................... $284.53
Partial loss ot the use of his right leg............................. 584.44
Keimbursement for nursing and medical expenditures.............. 260.54
Charge of Dr. W. A. Gray, Metropolis, Illinois..................... 326.00
Charge of Dr. Jos. H. McGann, Brookport, Illinois................. 12.00
Total........................................................$1,467.51

An award is, therefore, entered in favor of claimant, Woodrow Vick, in the sum of $1,467.51, payable as follows:

To: Dr. W. A. Gray, Metropolis, Illinois..........................$ 326.00
To: Dr. Joseph H. Gann, Brookport, Illinois...................... 12.00
To: Woodrow Vick ............................................. 1,129.51

all of which is accrued and payable forthwith.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the. Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Boad Fund in the manner provided for in such Act.


text:
    (No. 3685
    Clay Wilson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1943.

    Eugene P. Meegan, for claimant.
    George F. Barrett, Attorney GeneralWilliam L. Morgan, Assistant Attorney General, for' respondent.
   Fisher, J.

The claimant, Clay Wilson, a Civil Service employee of the Department of Public Welfare of the State of Illinois, was certified as Custodian of Boys, State Training School for Boys at St. Charles, Illinois, on August 2, 1940. On November 16, 1940, he was suspended for a period of thirty days for “sleeping while on duty in a cottage dormitory.” Written charges were filed with the Civil Service Commission on November 27, 1940, hearing was had on December 9, 1940, the charges sustained, and claimant’s discharge made effective as of January 2, 1941. Claimant was not present at the hearing.

Subsequently, claimant filed with the Commission a petition for rehearing, alleging that he had received no notice of the hearing held December 9th. A rehearing was had on July 26, 1941, at which the employee and his counsel were present. On October 22, 1941, the Commission entered an order of reinstatement, effective November 20,1941. Reinstatement was made in accordance with this order. Claimant’s salary as Custodian of Boys was $900.00 per year, and was paid to him to J anuary 2,1941. Claimant now seeks an award in the sum of $768.00, on the ground that he was wrongfully deprived of his salary from J anuary 2, 1941, to the date of his reinstatement.

The' right to the salary is attached to and follows the legal title to the office. (People vs. Bradford, 267 Ill. 486; City of Chicago vs. Luthardt, 191 Ill. 516.) In People vs. Bradford, supra, the court said: “While this rule has been most frequently announced and applied in suits between de jure and de facto officers over the salary to an office, it is nevertheless a basic principal of law and one of general application. It has been so applied not only in cases of protracted absence and non-performance of duties, (Bryan vs. Cattell, 15 Iowa 538), but in cases of actual suspension from office, (Wardlaw vs. Mayor of New York, 137 N. Y. 194; 33 N. E. Rep. 140; City of Chicago vs. Luthardt, supra).” The rule- applies irrespective of the question by whom the services were, in fact, actually rendered, (People vs. Bradford, supra), and should be applied in cases' involving the rights of Civil •Service employees as well as in cases involving the rights of elected public officials.

From the record it appears that claimant was a duly qualified Civil Service employee of the State of Illinois, that he was illegally discharged and wrongfully prevented from performing the duties of his position, and that he was subsequently reinstated by the Civil Service Commission. He has been diligent in the protection of his own rights, and at all times for which he seeks payment of salary, he was ready, willing and able to perform the duties of his position, tendered performance thereof, and such tender was refused. Any question of the payment of claimant’s salary for the period in question to some other person who may have performed the duties of his office is a matter of affirmative defense. (People ex rel. Verdung vs. Dunham, 294 Ill. App. 613.) There is no proof of any such payment.

An award is therefore entered in favor of the claimant in the sum of $768.00.


text:
    (No. 2839
    Charles Yung, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1943.

    L. N. Nick Perrin, Jr., for claimant.
    George P. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

This claim is for damages to land owned by claimant resulting from the construction of State Bond Issue Route 13 by the Department of Public Works and Buildings during the years 1934 and 1935. The property is described as Lots 20 to 27, both inclusive, and 34 and 35 in “Herzl'er Heights” according to plat thereof recorded in the recorder’s office of St. Clair County, Illinois, in Book of Plats “O” at page 45. Claimant alleges damages in the sum of Five Thousand Dollars ($5,000.00).

The record consists of the claim, filed February 11, 1936, transcript of evidence, stipulation, abstract of evidence, and statement, brief and argument of respective counsel:

Where private property is not taken for public use, but is damaged by being depreciated in value, by reason of the construction of a public improvement, compensation may be had for such damage, and the proper measure of the damage is the difference between the fair, cash market value of the property, unaffected by the improvement and its fair cash market value, as affected by it.
Chicago Title & Trust Co. vs. State, 11 C. C. R. 205.
Dept. of Public Works & Buildings vs. Caldwell, 301 Ill. 42.
Dept. of Public Works & Buildings vs. McBridge, 338 Ill. 347.

All material allegations of the complaint are sustained by the evidence except the amount of damages alleged to have been suffered by claimant. On behalf of claimant, Edgar M. Hermann testified that the property was depreciated between $450.00 and $500.00 as a result of said highway construction. Testifying on behalf of respondent, Frank H. Carson and William Voellinger were in agreement that the depreciation amounted to a total of $400.00.

From all the evidence, it appears that the reasonable amount of damages sustained by claimant as a result of the construction of State Bond Issue Route 13, is the sum of $400.00, and claimant is entitled to an award for such sum.

An award is, therefore, entered in favor of claimant Charles Yung, in the sum of Four Hundred Dollars ($400.00).


text:
    (No. 3025
    Elva Jennings Penwell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 10, 1943.

    John W. Peeihs, for claimant.
    George F. Barrett, Attorney General; Robert V. Osteom, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant was injured on February 2, 1936, in an accident arising out of and in the course of her employment as a Supervisor at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The injury was serious, causing temporary blindness and general paralysis. The facts are fully detailed in the case of Penwell vs. State, 11 C. C. R. 365, in which an award was made to the claimant of $5,500.00 for total permanent disability, $8,215.95 for necessary, medical, surgical and hospital services expended or incurred to and including October 22, 1940, and an annual pension of $660.00. On February 10, 1942, a further award was made to claimant for medical and hospital expenses incurred from October 22, 1940, to January 1, 1942. Claim is now made for an additional award of $1,164.15 for medical, hospital and nursing services from January 1, 1942, to and including December 31, 1942.

Claimant remains totally paralyzed from the waist down, the paralysis being of a spastic type; her physical condition has not improved. She has no control over her lower limbs, nor over urine and faeces. Because of constant confinement in bed, she suffers bed sores which require frequent dressings. She remains helpless, requiring the services of nurses or attendants to move her to and from her bed, to change her bed clothing at least three or four times a day, to administer light treatment to the affected parts of her paralyzed body, and to rub her body with ointments prescribed by her physician. During the period in question, she expended, on account of medical services, $411.00; for nursing services, $431.54; for medicines and medical supplies, $130.46; for hospital expenses, $140.15; for ambulance services to and from hospital, $51.00; totalling $1,164.15. Claimant has submitted to the court, with her verified petition, the original receipts and vouchers showing payment of these respective items.

This court has heretofore held that under Section 8, paragraph a of the Workmen’s Compensation Act, claimant is entitled to such care as is reasonably required to relieve her of the effects of the injury. (Penwell vs. State, supra). From the record, and from an investigation made at the court’s request, it appears that there has been no change in claimant’s physical condition to justify the denial of an award at this time; the services claimed were reasonably required, and the charges were reasonable and just. The court, however, reserves for future determination claimant’s need for further medical, surgical and hospital services.

An award is therefore made to the claimant for medical and hospital expenses from January 1, 1942, to December 31, 1942, in the sum of $1,164.15, all of which is accrued and is payable forthwith.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.


author: Fisher, J. Fisher, J. Mb. Justice Eckert

text:
    (No. 3627
    Eureka-Maryland Assurance Corporation, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

      Rehearing denied September 9, 1942.

      Supplemental opinion filed March 9, 1943.

      Rehearing denied April 15, 1943.

    Eckert & Peterson, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Fisher, J.

The complaint alleges that claimant is a Maryland corporation doing business in Illinois; that on March 14, 1941 it paid the Director of Insurance of the State of Illinois the sum of Three Hundred Dollars ($300.00), which was the statutory license fee under the Illinois Insurance Code for a certificate of authority for a foreign or alien corporation to do business in the State of Illinois during the period July 1, 1941 to June 30, 1942.

Claimant further alleges that the license fee of the State of Maryland for a certificate of authority to do business in that state for such a corporation as claimant, was at the time of said payment, fixed at the sum of Three Hundred Dollars ($300.00), and that by virtue of Section 444 of the Illinois Insurance Code, which provided for retaliation against such states as were charging Illinois companies for a certificate of authority to do business there, the fee for such certificate in the State of Illinois was fixed in a like amount — that is, Three Hundred Dollars ($300.00).

That subsequent to the payment of said Three Hundred Dollars ($300.00) by claimant, the laws of the State of Maryland applying to foreign and alien insurance companies were, commencing June 1,1941, amended, and that said amendment provided for a tax of Ten Dollars ($10.00) for the privilege of doing business in that state in lieu of the previous tax of Three Hundred Dollars ($300.00).

Claimant further alleges that the Three Hundred Dollar ($300.00) tax paid by it to the State of Illinois as aforesaid,. although paid on March 14, 1941, was not due until July 1, 1941, and inasmuch as the laws of the State of Maryland had been amended, reducing the set license fee from Three Hundred Dollars ($300.00) to Ten Dollars ($10.00), their fee for the Illinois certificate of authority should properly have been Ten Dollars ($10.00), and it therefore paid Two Hundred Ninety Dollars ($290.00) in excess of the proper tax.

The record in this case consists of the complaint, motion to dismiss of the Attorney General, on behalf of respondent, and respondent’s statement, brief and argument filed in support of motion to dismiss.

There appears to be no dispute as to the facts, and had the claimant waited until June to make the tax payment, the amount due under the law would have been Ten Dollars ($10.00) instead of Three Hundred Dollars ($300.00). The precise question to be decided by this court is, whether claimant having promptly paid its license fee several months before it was legally due, should now be penalized Two Hundred Ninety Dollars ($290.00) for its diligence in the matter. The Attorney General, on behalf of respondent, takes the position that

“Where no objection is made to any assessment of privilege tax against an insurance corporation, and payment of such tax is made without protest and with the belief that the amount was legally due, and that no fraud, deceit or coercion was used to induce the payment, such payment will be deemed to have been made voluntarily, and in the absence of a statute authorizing a recovery, cannot be recovered back.”
Ohio Casualty Ins. Co. vs. State, 6 C. C. R. 504.
Metropolitan Life Ins. Co. vs. Boys, 296 Ill, 166.

and that

“A tax voluntarily paid with full knowledge of the facts cannot be recovered hack in the absence of a statute authorizing such recovery.”
Kanaley & Co. vs. Gill, 363 Ill. 418.
American Can Co. vs. Gill, 364 Ill. 254.
Handy Button Machine Co. vs. State, 10 C. C. R. 22.
Sf. Louis Fire & Marine Ins. Co. vs. State, 11 C. C. R. 195.

and that

“Where one pays the license fee without any compulsion, or duress which the law did not compel him to pay, such payment is voluntary, and made under a mistake of law and cannot be recovered.”
Oswald Jaeger Baking Co. vs. State, 11 C. C. R. 119.

In a number of cases cited, the question of assessments was involved, with the right of the taxpayers to object to the assessment and obtain relief, and in these cases the taxpayer did not avail himself of the remedies which the law provided, and, having slept on his rights, was properly estopped from later obtaining relief. There is a growing tendency to apply the principle of law by which tax relief in such cases is denied to other cases with a different set of facts, resulting in the retention of excess payments by tax collecting bodies.

There is a difference between the case at bar and cases where assessments are made and taxpayers are given the right to protest and are afforded a legal remedy to protect their rights. If they then sleep on their rights, they have only themselves to blame. Because of the complication of assessing, tax levying, tax collection and allocation of funds collected, there must be some terminal point if governmental agencies are to be in a position to function with some degree of financial stability. It is also necessary that tax collecting and, tax spending bodies act within their legal and statutory authority. Often the courts are powerless to give relief, even though the claim is equitable, because of the absence of statutory authority.

In the tax and license fee laws numerous safeguards are enacted and penalties inflicted to compel the taxpayer to pay his tax promptly. A certain high morality is demanded of the taxpayer, and it certainly is a sound principle of law to say that as high or a higher degree of morality should be exercised by the governmental agency collecting the tax. It is, of course, necessary that tax collecting bodies must not act beyond the authority conferred on them by statute or reasonably implied therefrom, but it is also true that the court should not lean backward, so to speak, to decide against the taxpayer where, in fairness, the taxpayer should be entitled to a refund and who has been diligent and has not slept on his rights. If claimant had waited until June to make the tax payment, which it had a right to do, the amount would have been Ten Dollars ($10.00), and if the court should sustain this motion to dismiss, it would in fact, be penalizing the taxpayer for being prompt in its discharge of an obligation to the State. The court will grant the tax was voluntarily paid, but not with full knowledge of the facts, as claimant was not in a position to know that the State of Maryland would change its law prior to the beginning of the tax period, or July 1st. A case of this kind is entirely different than one where a yearly franchise fee is paid and, subsequent to the beginning of the period in question, the fee is raised or lowered by statute, or where an assessment is made and remedies are provided for the taxpayer to protest against his assessment.

This court has repeatedly decided that there must be some basis in law or equity on which to base its awards, rather than on the broad principle of equity and good conscience ; but this court is also in the unique position in that it not only has original jurisdiction in the cases it hears, but that there is no appeal from its decisions. It, therefore, enjoys a considerable degree of latitude in applying principles of law to the facts present in cases before it, and does not necessarily have to follow a line of decisions if, in the opinion of the court, they have been wrongfully applied or would not be fairly applied to a case at bar.

The court is of the opinion that where a franchise fee is paid -before it is due and is subsequently reduced before it is legally due and payable, that a refund for the excess payment should be made to the taxpayer.

We presume in the instant case that the Department of Insurance of the respondent, when claimant’s money was received, transferred it to the general funds of the State, and had no express legislative authority or appropriation from which the Department of Insurance could legally pay the claim in question, and without such legislative authority, of course, could not honor and pay the claim. This does not, however, prevent this court from allowing a claim or making an award, as the Legislature could, at some subsequent session, pass an appropriation from which the claim or award could he paid.

The motion of respondent to dismiss this claim is denied, and respondent is allowed thirty (30) days in which to answer the complaint herein.

Supplemental Opinion.

Fisher, J.

This claim now comes before the court for decision on its merits. The issues involved were discussed at some length in the opinion filed herein denying a motion by respondent to dismiss the claim.

Claimant seeks a refund of Two Hundred Ninety Dollars ($290.00) overpayment of license fees and, the facts as stated in the complaint are, in substance, admitted by stipulation.

Subsequent to the filing of our opinion denying the motion to dismiss, a stipulation was filed by the parties hereto, by and through respective counsel, which stipulation contains copy of a letter dated August 26, 1941, from W. E. Wingert, Assistant Supervisor, Tax Division, to Hon. George F. Barrett, Attorney General, which letter is, in part, as follows:

“On or about February 1, in accordance with its usual practice, the Insurance Department submitted its statement for annual fees to the above named company, which fees were assessed on the retaliatory basis.
“The records of this Department show that on March 14 the company paid their annual fee in the total amount of $329.00.
“On May 13, this Department received correspondence from the State Insurance Department of Maryland stating that Maryland had amended their insurance tax laws to reduce the fee for Certificate of Authority to $10.00, and that the amendment was approved on April 18th to become effective June 1. 1941 and apply to the renewal of company licenses expiring June 30, 1941.
“From the above you can see that the annual fees in this instance were paid prior to the passage of the amendment but that, also, the amendment was passed prior to the licensing date. Thus it is a peculiar circumstance of dates. For your information, the licensing period for all foreign and alien insurance companies, operating in the State of Illinois, is for the year beginning July 1, which, according to our information, is the same licensing period as in the State of Maryland.
“According to correspondence which we received from one of our domestic companies here in the State of Illinois, we are informed that the State* of Maryland charged them the fee of $10.00 for' their Certificate of Authority authorizing them to do business from July 1, 1941 to June 30, 1942. Thus, it appears that Maryland, in taxing our companies, assessed them on the basis, of their new law.”

The fee in question was not due until July 1941, but was paid on or about March 14, 1941 in response to a statement submitted by the Department of Insurance on or about February 1. There is no question that had the claimant waited until June to make the tax payment, the amount due under the law would have been $10.00 instead of $300.00, and that Illinois corporations doing business in the State of Maryland for the same period were charged the fee of $10.00 for a Certificate of Authority to do business in that State.

Respondent, by the Attorney General, vigorously opposes a refund and has filed an extensive brief, citing many cases and contending that there is no basis in law, or in equity, wherein this court could allow a refund. This position is predicated on the theory that the fee was paid under a mistake of law, and the authorities cited go to this point. We believe, however, that none of the cases cited are applicable to the present claim. The facts are unusual and entirely different-from any case that has been called to our attention.

With the position taken by respondent, that where a tax is paid voluntarily and under a mistake of law the same cannot be recovered back, we are in accord. This court has, however, been consistent in holding that where taxes are paid under a. mistake of fact, the same are recoverable. In our former opinion filed herein, we said the fee in this case was not paid with a full knowledge of the facts, as claimant was not in a position to know that the-State of Maryland would change its laws prior to the beginning of the tax period, or July 1st. The fact that the Legislature of the State of Maryland would amend its laws and reduce the license fee was a fact that could not be charged to the knowledge of- claimant before the legislative act took place. Section 444 of the Illinois Insurance Code requires the fee to be charged foreign corporations doing business in Illinois to be the same as the fee charged to Illinois corporations doing business in the other' state. Illinois corporations doing business in the State of Maryland were charged $10.00 for the period in question and Maryland corporations doing business in Illinois were charged a like sum. Claimant made its payment long before it was due and without the knowledge that the law was to be changed, and to deny a refund to claimant would not only penalize the early payment of taxes but would change the position that we have always taken that a tax payable under a mistake of fact'is recoverable.

In a very early opinion of this court, in the case of Big Four Wilmington Coal Company vs. State, 4 C. C. R. 279, it was held that where an overpayment of tax was paid by a mistake of fact reimbursement should be made for the overpayment.

In the case of Importers and Exporters Insurance Company of New York vs. State, 5 C. C. R. page 1, it was held that the overpayment of a tax was a mistake of fact and not a mistake of law.

In the case of Moorman Manufacturing Company vs. State, 8 C. C. R. 106, claimant made a payment of $25.00 to the Division of Foods and Dairies for registration fee when there was no law requiring such a fee to be paid. The court, in that case, allowed a refund and cited the rule covering such payments set forth in 48 Corpus Juris, page 759, as follows:

“As a general rule, a payment made under a mistake of fact, and which the payor was under no legal obligation to make, may be recovered back, even though made during the pendency of a suit on demand. The right of recovery under such circumstances is known to the civil and Roman law, as well as to the common law, and is bottomed upon the equitable doctrine that an action will lie for the recovery of money received by one to whom it does not in good conscience belong, the law presuming a promise to repay. The rule applies to payments made to or by public and governmental agencies as well as private persons;” also on page 765 as follows: “Where one by mistake of fact pays more than is due upon a debt or obligation, he may recover the overpayment.”

The same rule was followed in the case of Bates Valve Bag Corporation vs. State, 7 C. C. R. 64, and in Read vs. State, 8 C. C. R. 200.

In the case of Richard Seibert vs. State, 9 C. C. R. 253, claimant paid a tuition fee of $25.00 to the Southern Illinois Normal University, Carbondale, Illinois. The payment was for tuition. Claimant held a scholarship, which had been “overlooked” and the court held that claimant was entitled to a refund of the tuition paid, holding that the same was a mistake of fact.

In the case of Vera Nordstrand vs. State, 10 C. C. R. 185, claimant paid $58.33 for the issuance of a license and later, by her agent, again paid a like sum for the same license. The court held this was a mistake of fact and entitled claimant to a refund.

It is our opinion that in this case payment was made under a mistaken set of facts and, as such, entitled claimant to a refund of the excess payment.

An award is, therefore, entered in favor of claimant, Eureka-Maryland Assurance Corporation, in the sum of Two Hundred Ninety Dollars ($290.00).

Mb. Justice Eckert

dissenting:

The law is well settled that a tax voluntarily paid can not be recovered in the absence of a statute authorizing such recovery. Oswald Jaeger Baking Company vs. State of Illinois, 11 C. C. R. 119; Orchard Theater Corporation vs. State of Illinois, 11 C. C. R. 271. Furthermore, this court has held in a long line of decisions that an award can not be made solely on the basis of equity and good conscience and can be made by this court only where claimant would be entitled to redress against the State either at law or in equity if the, State were suable. Crabtree vs. State, 7 C. C. R. 207; Garbutt vs. State, 10 C. C. R. 37.