text:
    (Nos. 1833-1834, Consolidated
    George C. Peterson Co., No. 1833, George C. Peterson Co., No. 1834, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 14, 1939.

    Bussian & DeBolt, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevob, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

The claimant in each of the above entitled cases is the same, the George C. Peterson Company being a corporation licensed under the laws of the State of Delaware with its principal offices in the City of Chicago. It is principally engaged in the business of buying, selling and dealing in petroleum products, wholesale and retail.

The declarations in both cases were filed at the same time, i. e. on November 19,1931. In the former case, No. 1833, claimant alleges that on the 15th day of August, 1929 it entered into a contract with the State of Illinois whereby it obligated itself to sell and deliver 350,000 gallons of gasoline at 11.9c per gallon to the State of Illinois, to be shipped to the Division of Waterways, Dresden Island Lock and Dam, near Divine, Illinois, and that the respondent by said contract obligated itself to purchase and receive said gasoline at the price above stated; that pursuant to said contract the State accepted delivery of 28,226 gallons of such gasoline, but in disregard of inquiries by claimant for further shipping orders covering the shipment of the balance of said gasoline which it was then and there ready and willing to deliver, the State thereafter failed to accept any part of such remainder. That due to the refusal of respondent to accept the balance of the gasoline under the terms of said contract, claimant had been damaged in the sum of Fifteen Thousand ($15,000.00) Dollars.

In the second complaint, i. e. No. 1834, claimant alleges that on the 7th day of May, 1929 it entered into a contract with the State of Illinois whereby the claimant contracted and obligated itself to sell and deliver gasoline, kerosene and other petroleum products to the State of Illinois to be shipped to the Division of Waterways Brandon Road Lock & Dam near Joliet, Illinois, and the State of Illinois by said contract obligated itself to purchase and receive the same in the quantity, quality and the price therein alleged. That after a small portion of the merchandise contracted for had been delivered, as set forth in the complaint, the respondent declined to accept the remainder of said petroleum products and that the plaintiff, by reason of such refusal of respondent to perform the terms of its agreement, has sustained damages in the sum of Five Thousand ($5,000.00) Dollars.

A motion to dismiss the complaint was filed by respondent in each case, and on September 11, 1934 an order was entered that such motion would be taken with the case. Thereafter evidence was taken and certain stipulations entered into between the parties, the last of such stipulations being filed October 24, 1938. Final Statement, Brief and Argument was filed by claimant November 14,1938 in each case.

Respondent contends that the officer who purported to enter into the contracts on behalf of respondent had no authority to bind the latter; that respondent in and by such contracts did not agree to accept the amount of gasoline and petroleum products set forth in such contracts; that there was no appropriation at the time of the making of such contracts out of which payment could be made for the items contracted for; that the Court of Claims has no jurisdiction to determine the present claims upon their merits because of another forum to which such matter should have been submitted, and further that if an award was entered by the court the legislature could not make a valid appropriation in pay-meat thereof. In addition to the foregoing, counsel for respondent disagree with counsel for claimant as to the proper measure of damages for any loss suffered by claimant herein.

Photostatic copies of the specifications upon which the contracts in question rested, appear as part of the evidence, and by stipulation filed October 24, 1938, the parties herein agree that such photostatic copies are true copies of the original proposals submitted by the claimant, in answer to a notification from the respondent through its Division of Purchases and Supplies of the Department of Purchases and Construction that such respondent would receive sealed proposals for furnishing and delivering to the Division of Waterways, F. O. B. Dresden Island Lock & Dam site at Divine, Illinois, certain gasoline under the one contract and certain gasoline, grease and other oil products described in the second specifications ; that attached to the original proposals were copies of the articles, quantities and quality thereof taken from the respective notifications, together with the price per unit at which the articles specified in such notifications would be furnished by claimant; that the original notifications were received by claimant from respondent, and that there, was written on such notifications the price per unit at which said articles therein specified would be furnished by claimant at the location designated, and that the price therein stated was inserted as a bid price by authority and consent of the claimant ; that 0. L. Peterson was duly authorized by the claimant corporation to make the proposals in question. The stipulation further states that the items specified in such proposal were to be charged to the appropriation for the Illinois Waterway Fund Construction and were to be delivered by truck or wagon to the State of Illinois Division of Waterways Dresden Island Lock & Dam, Divine, Illinois. That the purchase order was delivered by the Division of Purchases and Supplies of said Department of Purchases and Construction to and was accepted by the claimant in response to said proposal.

The proposal by claimant company in each instance consists of a brief statement printed at the bottom of the State’s specifications, to the effect that the bidder proposed to furnish, in accordance with the terms of the specifications, the articles therein set forth, opposite to which the bidder had indicated a price. Such proposal contains the following statement:

“It is agreed that deliveries are to be made to the institutions in accordance with conditions on sheet No. 2.”

This proposal is directed to the “Division of Purchases and Supplies of the Department of Purchases and Construction.” The proposal and the specifications to which it refers is a printed form which is used in the general purchase of supplies for the various institutions of the State, and “Sheet No. 2” thereof contains a list of thirty-one State institutions with railroad delivery facilities indicated after the name of each. The specifications contained two additional typewritten sheets, the one in case No. 1833 containing the following paragraph, to-wit:

“Sealed proposals will be received in the office of the Division of Purchases and Supplies, Capitol Building, Springfield, Illinois, until 2 o’clock P. M., Tuesday, August 6, 1929, on 350,000 gallons of grade No. 1 gasoline. Necessary blanks and full information furnished upon application to the Division of Purchases and Supplies. The right is reserved to reject any and all bids.”

Beneath this paragraph claimant had noted a bid price for “350,000 gallons of grade No. 1 gasoline at a unit price of 11.9c per gallon.” Thereafter follows certain specifications as to color, corrosion, distillation range, acidity and sulphur. A further clause provides as follows:

“Bidder to furnish and install free of all extra cost to State, tank storage of 1000 gallons or more with pump or pumps for distribution. Deliveries to be made by tank wagon (or auto truck) in quantities as required, within four hours of telephone order from superintendent on the job. Estimated requirements from 1000 to 1500 gallons per day, to be delivered to State of Illinois Division of Waterways Dresden Island Lock & Dam site, Divine, Illinois.”

The foregoing is signed:

“Very truly yours
“Division of Purchases & Supplies
“A. W. Daily
“State Purchasing Agent.”

Sheet No. 1 of the specifications contains:

“BIDS:
“All bids must be addressed to ‘State Purchasing Agent,’ State House, Springfield, Illinois.
“DELIVERIES:
“Deliveries are to be made upon order of the Managing Officers of the institutions or the State Purchasing Agent.
“PAYMENTS:
“Vouchers for approved bills will be issued — on orders duly issued by the Managing Officer or the State Purchasing Agent.
“SAMPLES:
“All samples must be addressed to ‘State Purchasing Agent.’ ”

In transacting the demands of its business, the Department of Purchases and Construction must designate certain individuals to perform certain duties. In the Division of Purchases and Supplies the State Purchasing Agent has been indicated, as shown in the specifications issued by the department, as the one with whom parties contracting for the sale of supplies, should deal.

The motion to dismiss the claim, as filed herein by respondent, was based upon two reasons only, i. e. that the respondent, according to the complaint, was obligated only to take the products it might need, and that the complaint contained no allegation that it did not take same; and second, that the claimant did not allege in its complaint what the market price of the products were so that it could appear from the complaint whether or not any damage had accrued. The State did not file an answer or plea to claimant’s complaint, but filed its motion to dismiss as above stated. The court is considering this motion with the case, but the case stands, under the rules, as though the State had filed a plea of general issue. The Attorney General contends that Daily, the State Purchasing Agent, had no authority to bind the State by signing the contract in question; that only the Director of the Department could bind the State in such manner.

Claimant contends that as the execution of the contracts in question and their validity was not denied by a verified plea, it is not necessary to prove the authority of the agent who signed on behalf of the State. Counsel for claimant contend that the respondent should not be permitted to deny, on the trial, the execution and legality of the contract in question and cites in behalf of his contention the following, i. e. Schuyler County vs. Missouri Bridge & Iron Co., 256 Ill. 348; City of Chicago vs. Peck, 196 Ill. 260; and Melluish vs. City of Alton, 230 Ill. App. 250.

Regardless of the question of pleading, we believe the record herein discloses that A. W. Daily, as State Purchasing Agent, had authority to act for the State in the manner herein disclosed, and that the contract between claimant and the State was validly entered into and was binding upon respondent.

The specifications contain a further provision as follows:

“QUANTITIES:
“The Managing Officers will order within 10 per cent, more or less, of the quantities shown in the purchase order. The contractor will not be' called upon to deliver a greater excess than 10 per cent and the State shall not be called upon to accept more than the actual needs of the institution.
“DURATION OP CONTRACT:
“All articles furnished under contract are for three months’ supply, unless otherwise specified, and it is mutually understood and agreed that the said contract automatically expires on the last day of the current quarter.”

The invitation for proposals or bids do not contain any term limit or specified time within which the supplies in question were to be furnished other than that just quoted under “DURATION OF CONTRACT,” being the typewritten paragraph on sheet No. 2, to-wit:

“Delivery to be made by tank wagon or auto truck in quantities as required within four hours of telephoned order from superintendent on the job. Estimated requirements from 1000 to 1500 gallons per day.”

From the evidence herein in case No. 1833 we find that claimant company and respondent entered into a contract as of August 15, 1929, whereby the claimant agreed to sell and deliver in accordance with the terms of said contract, to the State of Illinois, 350,000 gallons of gasoline at 11.9c per gallon to be shipped to the Division of Waterways Dresden Island Lock & Dam site at Divine, Illinois in accordance with estimated requirements of from 1000 to 1500 gallons per day; delivery to be made in quantities as required upon telephone orders from the superintendent on the job. We are of the opinion that the proviso in said contract that it was subject to a duration of three months, and that such contract was to automatically expire on the last day of the current quarter covered by said contract, is limited or restricted by the typewritten statement that was written into such contract whereby the total amount of gas to be received under the contract, was estimated at 1000 to 1500 gallons per day. To use this amount of gas, even at the daily delivery of the maximum of 1500 gallons, would require two hundred ten (210) days, after allowing for a reduction of ten (10) per cent, under the terms of the specifications.

This in itself evidences that the typewritten statement in the specifications is to be taken as a modification of the printed matter found under the heading of “DURATION,” and that the latter is to be considéred in connection therewith.

Where the provisions of a contract which are partly printed and partly typewritten and the printed and typewritten provisions are fairly in conflict, the typewritten provision must control.

To this effect is Warner Const. Co. vs. Lincoln Park Com’rs., 278 Ill. App. 42-52. In this case the defendant contended that where there is an apparent conflict between the printed part and the typewritten part of a contract, the typewritten part must control. The court sustained the contention citing 13 CORPUS JURIS, at page 536, where it is said:

“Writing and Printing. Where, as in the use of printed forms, a contract is partly printed and partly written, and there is a conflict between the printing and the writing, the writing will prevail. Handwriting will under the same rule prevail over typewriting, and typewriting over printing.”

It further appears from the evidence that the State, pursuant to said contract, accepted delivery of 28,226 gallons of gasoline under said contract and paid claimant therefor. Oscar L. Peterson testified, as Vice-president of claimant company, that the last delivery of gasoline under this contract was made about January 12, 1930; that the official in charge of the job notified his company verbally at that time to make no further deliveries; that the price of gasoline on that date was 8.535c per gallon at Joliet, Illinois, which was the nearest point of delivery to Dresden Island Lock & Dam site; that the transportation cost from Joliet to Dresden Island would probably be one-quarter (%c) cent per gallon. Witness Peterson further testified that so far as he knew respondent did not obtain any gasoline from anyone else up until the 12th of January, 1930, and that prior to that time the contract was not violated in any way. Mr. Peterson testified that subsequent to that date he saw a truck of the Hamlin Oil Company emptying the contents of tank'wagons into the storage tanks at Dresden Island and that he believed it to be gasoline. That these tanks have a capacity of about 45,000 gallons, and that he received information from the president of that company that during the seven months subsequent to January 12,1930, the Hamlin Oil Company delivered approximately 250,000 gallons of gasoline to the Dresden Island job.

Claimant contends in case No. 1833 that it was ready, able and willing to furnish the full amount of gasoline quoted in its bid, and seeks payment of his lost profit on 321,774 gallons, being the difference between the amount accepted by the State prior to January 12, 1930, and the total of 350,000 gallons stated in its bid, or $11,326.44; this being, as he contends, the difference between the contract price of 11.9c per gallon and the market price of 8.535c per gallon at Joliet, Illinois on January 12, 1930.

We believe that the contract was for a definite amount and enforceable by both parties; that even if it was a requirement contract, the State did not take its full requirement from claimant, but after ceasing to call for supplies from claimant, obtained gas elsewhere; that the total of 350,000 gallons was subject to a reduction of ten (10) per cent under the specific terms of the contract, and that the quantity of gas for which claimant has the right to demand payment is 286,774 gallons.

We further believe that the proper measure of damáges is the loss of profit -suffered by claimant in connection with such non-acceptance of supplies.

In the case of Nestler vs. Pure Silk Hosiery Mills, 242 Ill. App. 151, page 165, the court said—

“The general rule is that the plaintiff is entitled to recover the total benefit of the contract, less expenses; * * * that without evidence to the contrary, the amount which would have been made as a profit if the contract had been kept, is the measure of damages if the contract is broken.”

■ The contract price between claimant and the State was 11.9c per gallon. To the cost price of 8.535c at Joliet should be added the transportation cost of one-fourth (%c) cent per gallon, to which Mr. Peterson testified, making a total cost of 8.785c per gallon, and leaving- a profit of 3.115c. Claimant’s profit ■ at this price on 286,774 gallons would have been $8,933.01.

The Act by which the Court of Claims is created (Laws 1917 p. 325) contains this provision in prescribing the court’s powers and duties:

“6. The Court of Claims shall have power
“(4) to hear and determine all claims and demands legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State as a sovereign commonwealth should, in equity and good conscience, discharge and pay.”

Under sub-section 2 the court is further authorized to make rules governing its practice and procedure, which shall be as simple, expeditious and inexpensive as reasonably may be. But few States have seen fit to lay aside their sovereign immunity to financial demands made against the State. In construing the above Act, by which Illinois seeks to give to claimants a forum in which to present their demands, this court has endeavored to award payment upon all claims upon which the State would be liable if suable in a court of law, and which the State should, in equity and good conscience, discharge and pay. The position of the court in this regard is fully set forth in the case of Crabtree vs. State, 7 C. C. R. 207.

In the instant case the evidence discloses that there was a valid contract upon the part of claimant and respondent for the purchase of the gasoline in question, and that the parties to such contract acted in pursuance thereof, and that the claimant delivered and the State received a portion of the amount of gasoline which the claimant had obligated itself to furnish.

In support of his contention that this claim is one arising under the terms of the Illinois Waterway Act and that therefore the Court of Claims has no jurisdiction, the Assistant Attorney General cites the case of Hanna, et al vs. State, 8 C. C. R. 352. That case was one for alleged damages to property by obstruction of the flow of water in the course of construction of the Illinois Waterway. Section 24 of said Act (Canals and Rivers, Ch. 19, Par. 114, page 214, Cahill’s Ill. Rev. Statutes, 1931) provides—

“All claims for damages to persons (except to employees) and all claims for damages to property, real or personal, shall be ascertained, determined and fixed by the Department of Public Works and Buildings, and paid out of any moneys which shall from time to time be provided for the payment of such claims * * *.
“All claims for damages to persons or property shall be filed with the Department of Public Works and Buildings within five years after the injury complained of.”

The instant claims (No. 1833 and No. 1834) are not for damages to person or to property, but are contractual demauds arising out of the alleged breach of its contracts by the State. The limitation as to jurisdiction, contended for, does not apply and we find that the Court of Claims may properly consider the claims now before us.

From what funds may the damages herein, if any, he paid?

Article 14, Separate Section 3 of the Constitution of Illinois of 1870 (Ill. Rev. Statutes of 1927, p. 26) provides as follows :

“The General Assembly shall never loan the credit of the State or make appropriations from the treasury thereof, in aid of railroads or canals;
“Provided, that any surplus earnings of any canal, waterway or waterpower may be appropriated or pledged for its enlargement, maintenance or extension; and
“Provided, that the General Assembly may * * * provide, for the construction of a deep waterway * * * and authorize the issue of bonds in a total amount not to exceed twenty million dollars * *

It appears from the foregoing that claimant’s damages can therefore be compensated only out of the moneys in the Deep Waterway Fund. Claimant apparently recognized this for in the stipulation filed by the parties on October 24, 1938 they agreed that the items specified in the proposal for contract made by claimant, were to be charged to the appropriation for the Illinois Waterway Fund Construction.

The court is not informed as to what money may be available with which to pay the award herein entered, but we find that claimant is entitled to an award in case No. 1833 in the sum of $8,933.01.

The contract at issue under the case of George C. Peterson Co. vs. State of Illinois, C. of C. No. 1834 was, according to the evidence, entered into on May 7, 1929. The proposal and specifications precedent to same are similar to those involved in case No. 1833 except for the dates therein and the typewritten description of merchandise covered by said proposal. Said proposal and specifications contain the following typewritten matter:

“Sealed proposals will be received by the Division of Purchases and Supplies of the Department of Purchases and Construction * * * until 2 o’clock P. M. Thursday, April 18, 1929 for furnishing and delivering to the Division of Highways 285,000 gallons of gasoline and 12,000 gallons of oil, for furnishing and delivering to the Division of Waterways F.O.B. Brandon Road Lock & Dam, Joliet, Illinois wagon or truck delivery, 7,850 gallons motor oil, 8,200 pounds grease, 600 gallons kerosene and 225,000 gallons gasoline. Full information and necessary blanks furnished upon application to the Division of Purchases and Supplies.”

Thereafter follows a request for a quotation by bidders of a price for furnishing the Division of Waterways F. O. B. Brandon Road Lock & Dam, Joliet, Illinois for delivery by truck or wagon of the above quantities of motor oil, grease, kerosene and gasoline to be delivered to the Division of Waterways Brandon Road Lock & Dam, Joliet, Illinois. Claimant company signed the proposal form attached to said specifications and inserted after the various items the price per gallon or pound at which it agreed to furnish the articles in question for the Brandon Road Lock & Dam delivery. No proposal was made for sale of the 285,000 gallons of gas or the 12,000 gallons of oil to the Highway Department.

These specifications contain the same printed section found in the specifications in case No. 1833, as to “Duration of Contract, ” i. e.:

“Duration of Contract — All articles furnished under contract are for three (3) months’ supply, unless otherwise specified, and it is mutually understood and agreed that the said contract automatically expires on the last day of the current quarter.”

These specifications do not however contain the typewritten provision that appears in the other specifications whereby the required needs of the purchaser were stated at 1000 to 1500 gallons of gasoline per day. Neither is there any other statement written or printed into the document that can be construed as an exception or limitation of the Duration of Contract Clause or as a fulfillment of the words therein, “unless otherwise specified.”

According to the testimony of Mr. Peterson, President of claimant company, the last shipment of gasoline and other petroleum products under the contract of May 7, 1929 (being case No. 1834) was July 31,1929. Prior to that time the State had accepted 56,701 gallons of gasoline on the Brandon Road job, and had also accepted delivery of certain portions of grease and motor oil, under such contract. Mr. Peterson testified that claimant company furnished all the gas and oil that was used on the Brandon Road Lock & Dam job required as the work progressed up to July 31, 1929, and that after that date no such supplies were furnished by claimant and the respondent obtained its gas and oil from other sources thereafter. The only testimony appearing in the record of such delivery by other parties is that Mr. Peterson who testified that some time in Augiost, 1929 he saw a tank wagon of the Texico Company deliver the supplies to the gasoline tanks on this job.

It appears from the record that no breach of the contract was committed by the State during the three months following the date of the contract, i. e. May 7, 1929.

The court finds that the duration of such contract was, by its terms, limited to a period of three months from the date thereof, and that said contract automatically expired at the end of such time, i. e. on August 7, 1929. Further, that the State was within its rights, under the specific wording of such contract to consider same cancelled at the end of such three months and to thereafter purchase its supplies independently thereof. As claimant was paid in full for all supplies furnished by it under the terms of such contract, there is no legal basis upon which an award can be made by the court in case No. 1834 and an award therein is hereby denied, and the claim dismissed.

An award is hereby made in favor of claimant in the case-of George C. Peterson Co. vs. State of Illinois, Court of Claims No. 1833 in the sum of $8,933.01, payable out of the Waterway funds as hereinabove noted.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    (No. 3200
    The Western Union Telegraph Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1939.

    Claimant, pro se.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Per Curiam:

On February 8, 1938, claimant filed its complaint with the clerk of this court and averred that it is a foreign corporation, with its principal place of business in the State- of Illinois, at 427 South LaSalle Street,-Chicago, Illinois; that at the special instance and request of the State of Illinois, through its duly authorized officers and upon agreement to pay therefor the claimant furnished the State of Illinois, regular time service, at the request of the Department of Public Health of the State of Illinois, for a period from April 22, 1937 to July 1, 1937, as appears by a statement attached to the complaint; that the usual and customary charge for said service was $2.32; that prior to the filing of this claim, the claimant duly demanded payment of said sum from the Department of Public Health of the State of Illinois, at Springfield, Illinois, but the payment was refused on the technical ground that the account had not been vouchered during the first half of the year 1937; and that the whole of said sum is now due and unpaid.

Claimant asks for the sum of $2.32 with interest from July 1, 1937, together with costs and disbursements.

It is agreed that these services were rendered and that the amount charged is a reasonable and fair charge; that a demand was made for the payment and that the bill was lawfully contracted, and the claimant has not been paid.

As noted above the bill was from April 22, 1937 to July 1, 1937. The services were to and for the use of the State at the Division of Diagnostic Laboratory, Department of Public Health, Springfield, Illinois. It is charged that this appropriation out of which this bill should have been paid, expired prior to September 30, 1937.

This conrt has repeatedly held that where claimant has rendered services or furnished supplies to the State on the order or request of an official authorized to contract for the same, and submits a bill therefor within a reasonable time, and due to no negligence or fault on the part of claimant same is not approved and vouchered for payment before the appropriation from which it is payable lapses, an award for the reasonable and customary value of the services or supplies will be made where, at the time the obligation was incurred, there were sufficient funds remaining unexpended in the appropriation to pay for the same.

An award, therefore, in the sum of $2.32 will be made to the Western Union Telegraph Company. Interest on this, however, will be denied because it does not appear that the bill was rendered at the proper time and could not be allowed without an award from this court. Costs are asked but we know of no expenditure of funds which could be assessed as costs as a matter of law. No award, therefore, is made for interest and costs.


author: Mr. Justice Yantis

text:
    (No. 2930
    Joseph F. Pawlak, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1939.

    J. W. Wimbiscus, for claimant.
    Otto Keener and John E. Cassidy, Attorneys General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

By his amended complaint herein claimant seeks an award of $612.00 for the alleged loss of use of the index finger of his left hand, resulting from an accident arising out of and in the course of his employment as an assistant cook at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The evidence discloses that sometime during the period from October 1st to December, 1935, claimant, while engaged in his duties was cutting a veal carcass; that he let the knife slip, resulting in a deep gash from the tip of the finger to the first joint, severing the tendon. He received immediate treatment and care at the institution hospital, and three of the attending nurses have testified to the fact of such injury.

Dr. James Moran of Spring Valley examined the patient in October 1936, at which time he found that plaintiff was unable to flex the first phalange of his left index finger because of the tendon being severed, and that the finger is in a condition of chronic extension. That claimant can flex the finger at the second joint, but cannot touch the palm of his left hand with the tip of his finger. Claimant must depend on the remaining fingers for lifting and holding objects. While claimant can flex his finger at the second joint, at right angles, such second joint and second phalange are involved to some extent.

Claimant had no wife or child at the time of the accident. His actual wages for the year preceeding such accident including maintenance allowance was $845.00 or an average weekly wage of $16.26. He received his regular wages at all times after the accident and the only other item claimed herein, in addition to $600.00 specific loss of the fing*er is $32.79 for expenses incurred in three trips to Chicago to consult Dr. Thomas at the Illinois Research Hospital as requested by respondent.

We find from the record that claimant suffered an accidental injury while an employee of respondent; that the accident arose out of and in the course of his employment; that respondent had due notice of said injury and that notice of claim and application for payment were made as required by the provisions of the Workmen’s Compensation Act. That as a result of said accident claimant suffered a 60% loss of use of the index finger of the left hand, and is entitled to an award under the terms of Section 8 (e) 6 at the rate of $8.13 per week for 60% of 40 weeks or $195.12, plus the further sum of $32.79 expenses incurred at the request of respondent in connection with medical and surgical care, under the provision of Section 12 of the Workmen’s Compensation Act.

An award is therefore hereby allowed in favor of claimant Joseph F. Pawlak for the sum of Two Hundred Twenty-seven and 91/100 ($227.91) Dollars for 60% loss of use of the index finger of the left hand and surgical care in connection therewith.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3, 1938 (Sess. Laws 1938 p. 83), and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from said appropriation from the General Revenue Fund in the manner provided for in such Act.


text:
    (No. 3061
    Joseph Hudik, Doing Business as Cicero Coal Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1939.

    Weinberg, Kjellandbr, 0 ’Farrell & Ames, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Per Curiam:

Joseph Hudik, doing business as Cicero Coal Company at 1545 South 56th Avenue, Cicero, Illinois, complains that on the 28th day of September, 1933, he sold to the State of Illinois, 2,500 pounds of Chestnut Coal' and 2,500 pounds of Range Coal to be used by the Illinois Maintenance Highway Police at 123rd Street and Cicero Avenue, Alsip, Illinois; that on the 21st day of October, 1933, he presented a bill to the Division of Highways of the Department of Public Works and Buildings of the State of Illinois for payment.

It is stipulated that the reasonable value of the coal was $35.57.

The bill was placed in line for payment by the Department of Public Works and Buildings but was disapproved by the Department of Finance of the State of Illinois, and no warrant for said sum was ever issued and the claimant has never received payment for his coal.

The Attorney General argues- that this claim should not be allowed because the party who ordered the coal for the use of a branch of the State had no authority, under Sections 29 and 30 of the Civil Administrative Code, which provides as follows:

“All supplies of fuel purchased for the department shall be let by contract to the lowest responsible bidder. Advertisements for bids shall be published for at least ten days in one or more of the daily newspapers of general circulation published in each of the seven largest cities of the State, determined by the then last preceding Federal census. The officer authorized by law to make contracts for fuel shall prescribe rules and regulations to be observed in the preparation, submission and opening of bids. All contracts for fuel "shall be made subject to the approval of the Governor.
The price paid for fuel shall not exceed the following:
For anthracite coal, twelve dollars per ton;
For Pennsylvania bituminous, Pocahontas and West Virginia smokeless, eastern Kentucky and Ohio coals, all of the bituminous type, nine dollars per ton;
For Illinois, Indiana, western Kentucky, Missouri and Iowa coals, all of the bituminous type, seven dollars per ton;
For any other coal of the bituminous type, seven dollars per ton.”

In the stipulation it is admitted that the reasonable value of the coal was $35.57.

This court will not where the sums claimed are large, approve of any departure from the statute in the purchase of any supplies for the State. Yet it is quite apparent that at the time this coal was purchased, fuel was reasonably needed for heating purposes. The statute provides that fuel shall be purchased by contract entered into by the lowest responsible bidder, and that the advertisements for bids shall be published in each of the seven largest cities of the State, and that the officer authorized by law to make contracts for fuel shall prescribe rules and regulations to be observed in the preparation, submission and opening of bids and that all contracts for fuel shall be made subject to the approval of the Governor.

We do not feel that it was the intent of the legislature that a procedure should be followed which would require an expenditure of funds equal to, or being a large part of the cost of the fuel to be purchased.

It is the opinion of the court that public interests could best be served by the purchase of fuel at a reasonable price. It also appears that an emergency undoubtedly existed. To get advertisements ready and to go through the forms prescribed by law, would undoubtedly take more than ten days. The Attorney General offers no solution of this problem, except the strict letter of the law. We view this as an exception to the general rule, and we believe that the claimant should be paid. No fraud is even suggested.

We, therefore, make an award in the sum of $35.57 in favor of Joseph Hudik, doing business as Cicero Coal Company.


text:
    (No. 3115
    Charlotte P. Marchand, Eugenie P. Cusson, Mercedes P. Cameron and Jules Poulin, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1939.

    Charles W. Firke, for claimants.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Per Curiam:

The complaint was filed in this cause on August 23, 1937 and an amendment thereto was filed on October 4, 1937.

The facts as they appear from the stipulation are that the claimants, Charlotte P. Marchand, Eugenie P. Cusson, Mercedes P. Cameron and Jules Poulin were.heirs at law of Edward Armstrong, who died on December 12, 1922, a resident of Adams County, State of Illinois; that at the time of Armstrong’s death, he left no father or mother him surviving, no widow or children, or descendente of a deceased child or children him surviving; that in his lifetime he had one sister, Amelia Armstrong, and had no other brothers or sisters; that his sister, Amelia Armstrong died in the year of 1918, and at the time of her death, she left no husband her surviving, but did leave as children, the claimants; that at the time of Armstrong’s death, the claimants were residents of the Dominion of Canada. It further appears from the stipulation of the parties that the estate of Edward Armstrong- was administered by P. J. Schlagenhauf, who had been duly appointed administrator by the county court of Adams County; that an inheritance tax proceeding was instituted before the county judge of Adams County, and on April 15, 1924, an order was entered in said proceedings appraising the fair cash market value of the net estate at $2,221.11 and ássessing a tax of $212.11 on the basis that said net estate escheated to the County of Adams, and that said transfer was taxable at the rate of ten per cent after the allowance of an exemption of $100.00; that on the 17th day of April, 1924, the administrator paid said tax to the county treasurer of Adams County.

It further appears from the stipulation of the parties that on May 8, 1924, after deducting the costs and fees allowed by the county judge as incidental to proceedings, and the county treasurer’s commission, the county treasurer of Adams County remitted to the state treasurer the sum of $170.64 in discharge of said inheritance tax; that the claimants had no knowledge of Edward Armstrong’s death nor notice of the proceedings to assess an inheritance tax in said estate; that in 1936, claimants first learned of the death of Edward Armstrong, the administration of his estate, its escheat to the County of Adams and the assessment and payment of the inheritance tax as above set forth.

It further appears from the stipulation that on May 6, 1936, after a hearing in the county court of Adams County, an order was entered establishing claimants as the heirs of Edward Armstrong and directing the county treasurer to pay over to them the estate escheated to the county; that on September 13, 1937, after a hearing upon the petition filed by claimants to reassess the inheritance tax in the estate of Edward Armstrong, an order was entered by the county court of Adams County reassessing said tax bn the basis of a net estate of $2,221.11, passing to claimants as nephews and nieces of Edward Armstrong, deceased, as follows:

Beneficiary, relationship Appraised Taxable
and description of Fair Market Statutory Cash Tax
property Value exemption Value Fixed Rate
Charlotte1 P. Marchand...... .. 555.27 500.00 55.27 3.12 6%
Eugenie P. Cusson.......... .. 555.28 500.00 55.28 3.12 6%
Mercedes P, Cameron....... .. 555.28 500.00 55.28 3.12 6%
Jules Poulin ............... .. 555.28 500.00 55.28 3.12 6%

It further appears from the stipulation that on September 23, 1937, the tax as so reassessed, plus accrued interest, was paid by claimants to the county treasurer of Adams County and remitted to the state treasurer.

It clearly appears that claimants are legal blood relatives of Edward Armstrong, and from the time of his death, and prior thereto, they had lived in the Dominion of Canada; that these claimants are the only heirs at law of the said Edward Armstrong, deceased; that they properly filed their petition in August, 1937, praying for a reassessment of the inheritance tax in the estate of Edward Armstrong on the basis of the net estate of $2,221.11, which they took as nephew and nieces of the said Armstrong; that on September 13, 1937, the county court of Adams County, Illinois, entered an order reassessing the inheritance tax as above set forth and on September 23 of the same year, these claimants paid to the county treasurer of Adams County, Illinois, the sum of $5.89 each, being the tax fixed of $3.12 plus 6% interest from the date of death of Edward Armstrong until such date of payment, making a total payment of $23.50; that this payment was remitted by the county treasurer of Adams County to the State Treasurer of Illinois.

This claim is to recover the sum of $170.64 paid under the personal assessment, which assessment was made under a mistake of fact.

All of these proceedings appear to have been regular.

The county court has jurisdiction of petitions for reappraisement and reassessment of inheritance tax. People vs. Talbot, 339 Illinois, 333.

The proceeding for reassessment is in the nature of a bill of review which lies where decree was rendered either without jurisdiction of defendants or for mistake of fact. Under the original assessment there was a mutual mistake of fact. The court found the entire estate to he $2,221.11, with $100.00 exemption, leaving a taxable interest of $2,121.11 at 10%, a tax of $212.11 with interest due of $17.14, or a total tax of $229.25. After deducting the costs and fees allowed by the county judge as incidental to the proceeding and the county treasurer’s commission, there was paid to the State Treasurer of Illinois by the County Treasurer of Adams County, Illinois, the sum of $170.64. The claimants are non-residents and never knew of this tax, never knew of the estate in fact, until 1936, when they took steps to establish their claim to the estate left by Edward Armstrong, deceased. The same was accordingly paid to them. On September 13, 1937, on petition by claimants to reassess the inheritance tax, the same was reassessed by the county court of Adams County, Illinois, finding that a smaller amount was due on the estate in view of the newly discovered facts of the relationship of claimants to Edward Armstrong.

The five year statute in the Court of Claims Act does not apply in this instance because claimants had no claim against the State until there was a reassessment of the tax by the county court. This reassessment was made on September 13,

1937, and the proper tax, as reassessed, has been paid. The difference between the amount of tax originally assessed and the amount subsequently assessed, is the sum of $170.64.

An award, therefore, is made to the claimants in the sum of $170.64.


author: Mb. Justice Yantis

text:
    (No. 3097
    City of Oglesby, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 20, 1938.

      Rehearing denied June 15, 1939.

    D. J. Campeggio and M. D. Mobahn, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks an award for a refund of public utility tax paid by it under the terms of an Act known as the Public Utility Tax Act, entitled “An Act in Relation to a Tax Upon Persons Engaged in the Business of Transmitting Telegraph or Telephone Messages, or Distributing, Supplying, Furnishing or Selling Water, Gas or Electricity,” said Act being found in Smith-Hurd Illinois Revised Statutes, 1935, Chapter 120, Sections 440 et seq. The complaint recites that on August 12, 1935 claimant paid to the Director of Finance, the sum of One Hundred Fifty-four and 45/100 ($154.45) Dollars and thereafter during each of the following months including February, 1937 made additional payments to a total amount of Two Thousand One Hundred Eighty-nine and 45/100 ($2,189.45) Dollars; that each of said payments and the monthly tax returns accompanying same were made .under protest, and under a contention that said tax and the Act under which same were collected were unconstitutional and void; that the Supreme Court of the State of Illinois on the 12th day of February, 1937 filed its Opinion in the case of the City of Chicago vs. Ames, reported in 365 Illinois Supreme, Page 529 in which it held said Act to be unconstitutional and void.

The Attorney General of the State has filed a motion to dismiss the claim on the following grounds:

“1. The complaint does not allege the necessary facts to show that the payments made were, in fact, made involuntarily or under duress or compulsion but only alleges the conclusion that such payments were so made.

“2. The complaint does not allege the necessary facts to show that it did not have a complete and adequate remedy at law or equity.

“3. The complaint does not allege under what provision of the constitution or statute of the State of Illinois a tax paid, even though under protest, where an injunction is not sought is not paid voluntarily, nor under what provision of the constitution or statute a tax paid voluntarily to the State of Illinois, even under an unconstitutional law, can be recovered back.

“4. The complaint does not allege facts that show said tax was not paid either through ignorance of the unconstitutionality of the Public Utility Tax Act, or a mistake of law as to the unconstitutionality of such Act.

“5. The Court of Claims has no jurisdiction to make an award where the State would not be liable at law or in equity if suable. ’ ’

Both respondent and claimant have filed Briefs in support of their contentions and the matter has also been heard on oral argument. The claimant contends that the payments in question were each made under protest and under duress to avoid the penalties provided by statute, and were therefore involuntarily made. Claimant relies upon the ruling laid down in Benzoline Motor Fuel Co. vs. Bollinger, 353 Ill. 600, to the effect that payments made under an unconstitutional Act to avoid the penalties thereof are considered to have been made under implied or moral duress and hence involuntarily made. Claimant seeks its award for a refund by reason of the following proviso contained in said Public Utility Tax Act, to-wit:

“If it shall appear that an amount of tax, penalty or interest has been paid which was not due under the provisions of this Act, whether as the result of a mistake of fact or an error of law, then such amount shall be credited against any tax due, or to become due, under this Act from the public utility which made the erroneous payment, or such amount shall be refunded to such public utility by the department.”
Par. 1/1(5, Chap. 120, Ill. State Bar Statutes, 1935.

The only reason for the payment of said tax was because of the provisions of said Act. The payments were due and were made “under the provisions of said Act” — but such Act was declared unconstitutional. The determination of claimant ’s rights therefore rest not upon the above Act or any part thereof, but upon its general right, if any, to a refund for money voluntarily and improperly paid.

The Attorney General contends that the complaint herein does not allege any facts to show that the payments complained of were in fact made under duress or compulsion, and also urges as a further objection, that no injunction was sought by claimant to restrain the payment of said funds into the State Treasury, and that the failure of claimant to exercise its right to such injunction bars it from an allowance of its claim by this court.

Sub-section 2 (a), Section 172 of Chapter 127, Illinois Revised Statutes of 1937 provides:

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

Claimant herein did not obtain any such temporary injunction, but now relies upon the fact that during the time these payments by the City of Oglesby were being made, there were already suits started by other claimants to restrain the Director of Finance and the State Treasurer from forcing compliance with said Utility Tax Act by which the constitutionality of the Act was being tested. Claimant contends it would have been an unreasonable burden on the City to have spent public funds for the prosecution of any suit or suits to enjoin the payment of the funds thus paid by it into the State Treasury when a similar suit was then pending.

The question of voluntary payments was considered by this court at some length in the case of Butter Company vs. State, 9 C. C. R. 503, and therein it was stated (p. 509):

“The question as to when illegal or excessive tax payments may be recovered is the subject of an exhaustive annotation in 64 A. L. R., commencing on page 9. The general rule is set forth on page 10, as follows:
‘It is a well-settled rule, in the absence of statute, that the right of a party who has paid a tax, local assessment, or license fee, to recover the' saíne back, depends upon whether or not the payment was involuntary. If the payment was voluntary, it cannot be recovered; if it may be deemed involuntary, a recovery may be had.’
“Under the heading of general rules it is pointed out on page 11 that ‘the terms ‘voluntary’ and ‘involuntary’ when used with reference to payments of taxes, are not applied in their ordinary sense.’
“Under the heading ‘Existence and adequacy of other remedy or relief,’ the annotator, on page 54, says:
‘There is a conflict in the authorities on the question whether the existence of another remedy or means of relief will render a payment of taxes voluntary, where the taxpayer neglects to avail himself of such remedy.
‘It has frequently been held that the compulsion brought to bear upon the taxpayer must, in order to render his payment involuntary, have been of such a nature that he had no other reasonable means of immediate relief from the same, except by making the payment.’
“After citing a long list of cases from different jurisdictions, he proceeds (page 55):
‘And according to this line of cases, representing, probably, the weight of authority, where the taxpayer has some other legal remedy or protection against the coercive acts of the collecting officer, he is bound to avail himself thereof, and, if he neglects to do so, and pays the tax, such payment is deemed voluntary.’
“The annotation in 64 A. L. R. 9, is supplemented by a further annotation in 84 A. L. E. 294.”

In Rohde vs. City of Chicago, 254 Ill. App. 590, the court denied judgment for plaintiff who, for the privilege of operating a beauty parlor, had paid a city license under an ordinance later held invalid. In its opinion therein the court concurred in the following statement from Dillon on municipal corporations :

“The authorities agree that a payment made under compulsion or duress may be recovered. The application of the rule has not been always uniform. Compulsory payment is primarily a question of fact. No precise rules can be laid down as to what constitutes a compulsory payment.”

Claimant cites the case of Illinois Merchants Trust Co. vs. Harvey, 335 Ill. 284, in support of its contention for an award. In that case Harvey and others had leased certain real estate on Wabash Avenue in Chicago to Marshall Field. Lessee was required to erect a building thereon not less than eight stories in height. The lease as extended was to operate until 1980. The lease contained a forfeiture provision that unless defaults in the performance of covenants were rectified within sixty days after notice was given, the lessors would have the right to exercise an option to declare the lease terminated. The income tax on the rental was paid by lessors for the years 1914-15, and they in turn demanded of and received such income tax from the lessees. Under a proviso contained in the lease the lessees were to pay “all taxes, water rates, special assessments and all other similar impositions of every kind which should be levied or imposed upon the premises. ’ ’ By reason of an amendment to the income Tax Law, the lessees refused to reimburse lessor subsequent to the year 1915. On March 9, 1921 lessor notified lessees that they were in default under the terms of the lease for non-payment of the sum of $8,350.97 for such income tax payments, and that unless payment was made to lessor within sixty days, lessors would exercise their election to terminate such lease. Lessees protested against making the payment but paid, as they stated they could not afford to involve the forfeiture of the lease, as such forfeiture would involve a loss of some $2,000,000.00. Later a suit in assumpsit for the recovery of the money was filed by lessees. The Supreme Court in considering the question of voluntary pavment under compulsion and duress said (p. 291):

“The rule was early laid down in Elston vs. City of Chicago, 40 Ill. 514, that a payment made with full knowledge of all the facts and circumstances and in ignorance only of legal rights cannot be recovered; that in order to render a payment compulsory such pressure must be brought to bear upon the person paying as to interfere with the free enjoyment of his rights of person or property, in the sense of depriving him of the exercise of his free will. The rule generally followed in tax cases is, that although the statute imposing the tax be unconstitutional and the tax illegal, it cannot be recovered if paid voluntarily or under mistake as to legal rights but with knowledge of the facts, where an opportunity is afforded to defeat the tax.”

The court then adds:

“From the Illinois cases cited, and those of other jurisdictions, the rule is deducible that where one, to prevent injury to his person, business or property, is compelled to make payment of money which the party demanding has no right to receive and no adequate opportunity is afforded the payor to resist such payment, it is made under duress and can be recovered.”

After reviewing a number of cases the court in applying , the law to the facts in question said (p. 296) :

“We are of the opinion that the forfeiture threatened against defendants in error (the tenant) was cognizable in equity, and that the demand being invalid and the result of a forfeiture being of a serious consequence to defendants in error, equity would have relieved against the same. Defendants in error had sixty days in which to apply for such relief. There was adequate time to- secure the aid of equity and that court was open to them. It follows that the payment by them was voluntary and not made under compulsion or duress.”

On a rehearing the court re-adopted the foregoing as its conclusions.

The rule as to non-recovery of voluntary payments has been re-affirmed in the recent case of Groves vs. Farmers State Bamk, 368 Ill. 35, wherein the court said (p. 47):

“Money voluntarily paid under a claim of right to the payment, with full knowledge of all the facts by the person making the payment, and without fraud or mistake of fact, cannot be recovered back upon the ground that the claim was illegal unless the payment was made under circumstances amounting to compulsion.”

No distinction in the matter of tax refund can be made in favor of claimant as a municipal corporation,' as distinguished from a private enterprise, in regard to payments made under the said Public Utility Tax Act, for said municipal corporation in the operation of the utility was engaged therein in its private capacity and not in its governmental capacity. In considering the question of such distinction the Illinois Supreme Court in the case of the City of Chicago vs. Ames, 365 Ill. 529, said:

"The use of the term ‘person’ in statutory enactments has been held to include municipalities A municipal corporation selling gas, water or electricity for private consumption does so in its proprietary rather than its governmental capacity. * * * No distinction is to be drawn between such business of selling when indulged in by a municipality and when engaged in by a private corporation. * * * When a municipality goes into the business of furnishing water for sale * * * such municipality does not sell in the capacity of sovereignty but in a private capacity.”

Major reliance is placed by claimant upon the fact that in the case of Benzoline Motor Fuel Company above referred to (353 Ill. 600), the taxing Act was declared unconstitutional and that the Court of Claims thereafter, in the case of Benzoline Motor Fuel Company vs. State, 9 C. C. R. 178, granted an award to claimant therein for the payments previously made by it under protest.

An examination of the latter case will disclose that the Benzoline Motor Fuel Company upon making the payment of tax demanded of it, followed its payment under protest by obtaining a temporary injunction from the Circuit Court of Sangamon County; that the State Treasurer notwithstanding such injunction transferred said fund to the State Treasury, while said injunction proceedings were pending; that the Supreme Court .entered a final order directing repayment to the claimant of the sum to which it was entitled.

Thus we see that the Benzoline Motor Fuel Company case is not in point and does not support the contention of claimant herein.

Payment under protest, in order to justify a recovery of funds from the State involves not only due notice of protest at the time of such payment, but requires the further action upon the part of claimant of enjoining the transfer of such money until the legality of such payment can be determined. This provision is an important one as a matter of public policy to the entire financial structure of the State government. It is only by due notice of what funds previously paid to the State officers are tied up by injunction proceedings that the Director of Finance can determine the correct financial status of the State. The fact that some other party had enjoined the transfer of funds collected from it cannot serve the claimant herein as a compliance upon his part with such statutory requirement. In the ordinary payment of taxes by an individual, if two taxpayers should individually file their protest with the County Treasurer at the time such taxes are paid, and one of such taxpayers should thereafter file his objections in the County Court to test the validity of such tax, and the other individual would do nothing but stand by to wait the outcome of the other’s suit, he could not recover his taxes regardless of the outcome of the County Court proceedings on the objections filed by such other party.

The statutes provided a full and complete remedy for the claimant herein and it should have taken advantage of the provision of law enacted for its protection. As in the Marshall Field case above quoted, claimant had ample time in which to seek its injunction, and having failed to take advantage of the remedy provided by statute it follows that the payment made by claimant was made voluntarily and without compulsion or duress.

As the complaint fails to show compliance by claimant with those requirements which would warrant an award by this court for a refund of the tax in question, the motion of the Attorney General is allowed and the claim dismissed.


author: Mr. Chief Justice Hollerioh

text:
    (No. 3387
    John T. Hawthorne, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1939.

    Claimant, pro se.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of the court:

Claimant filed his complaint herein on June 10, 1939, and therein requests an award in the sum of $96.23, which amount he claims is due him for money advanced for traveling expenses. A report of the director of the Department of Conservation concerning the matter has been filed with this court and from the record herein it appears that during the months of February, March and April, 1937, and for more than four years prior thereto the claimant was in the employ of the respondent as Inspector of Game Wardens for the Department of Conservation, and that in addition to his salary he regularly received reimbursement for his traveling expenses. During such months of February, March and April, 1937, while engaged in the performance of the duties of his position, claimant incurred and paid traveling expenses in the amount of $96.23, but failed to present his expense account therefor to the Department of Conservation until October, 1937, at which time the appropriation out of which the same was properly payable had lapsed. The director of the department reports that the claim represents legitimate expenses incurred by the claimant, and that the reason the department did not voucher the same for payment was because the appropriation had lapsed when the expense account was presented.

A similar question was presented in the case of Pelikan vs. State, No. 3144, decided at the March Term, 1938, and we there held that the claimant was entitled to an award. The same conclusion has been announced by this court in numerous cases involving similar principles. See: Indian Motor Cycle Company vs. State, 9 C. C. R. 526, and cases there cited. On the facts presented in the instant claim the claimant is clearly entitled to an award. Award is therefore entered in favor of the claimant for the sum of Ninety-six Dollars and Twenty-three Cents ($96.23).


author: Mr. Justice Linscott

text:
    (No. 2481
    Bartonville Bus Line, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1939.

    Claimant, pro se.
    Otto Keener, Attorney General; John Kasserman and Glenn A. Trevor, Assistant Attorneys General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Rehearing having been granted on motion of the respondent, the following is substituted for the original opinion herein.

On January 30, 1934, Peoria Bus Transportation Company, a subsidiary of the claimant herein filed with the Secretary of State, its annual report, upon which it was assessed a franchise tax in the amount of $13.70, which tax was paid by claimant on May 22nd, 1934, under the impression that the same covered the preceding calendar year, whereas in fact it covered the year commencing July 1, 1934.

On June 15th, 1934 said Peoria Bus Transportation Company filed in the office of the Secretary of State its statement of intent to dissolve, and on June 26, 1934 Articles of Dissolution were duly filed and certificate of dissolution duly issued by the Secretary of State.

Under the laws then in force the franchise tax was based upon the sum of the stated capital and paid, in surplus as of December 31st of the preceding calendar year, less any reduction made prior to June 25th of the current calendar year, as disclosed by any report or document filed by the corporation in office of the Secretary of State, Cahill’s Revised Statutes, 1933 Chap. 22 Par, 132. Statement of intent to dissolve having been filed on June 15th, 1934, and certificate of dissolution having thereafter been issued pursuant thereto, it would appear that the effective date thereof was the date of filing, to wit June 15th, 1934. Consequently there was no capital and no paid in surplus of the Corporation of June 25th, 1934, and no tax was due from the Corporation for the year commencing July 1, 1934.

All of the assets of said Peoria Bus Transportation Company were, at the time of dissolution thereof, transferred to the claimant herein, which now seeks to recover the amount of the franchise tax so paid as aforesaid.

The Attorney General contends that the tax in question was paid voluntarily, with a knowledge of all the facts, and that under the law as laid down by this court in the case of Butler Company vs. State, 9 C. C. R. 503, claimant is not entitled to a refund of the tax so paid as aforesaid.

In the Butler Company case, this court said: ‘ ‘ Our courts have uniformly held that where an illegal or excessive tax is paid voluntarily, and with a full knowledge of all the facts, it cannot be recovered;’’ and in the same case we also' said: “It is also uniformly held that where such tax is paid under a mistake of fact, it is not considered as having been voluntarily paid, and may therefore be recovered.”

In making payment of tax in question, the taxpayer was under the impression that it was paying the tax for the preceding calendar year. As a matter of fact the tax for the preceding calendar year had theretofore been paid, and no further tax became due from the corporation, as it was dissolved before the next due date.

It is often a difficult matter to distinguish between a mistake of fact and a mistake of law, but as we view the matter, the payment in this case was made under a mistake of fact, and claimant is therefore entitled to an award for the amount paid.

Award is entered in favor of the claimant for the sum of Thirteen and 70/100 ($13.70) Dollars.


text:
    (No. 3303
    Cities Service Oil Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1939.

    Allen, Darlington & Moore, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Per Curiam:

The claimant, Cities Service Oil Company, a corporation licensed under the laws of the State of Illinois, furnished the St. Charles School for Boys at St. Charles, Illinois, a quantity of oils. The oils were duly ordered and received and the price agreed upon. After delivery, it was discovered that these oils were not fit for the purpose for which they were purchased, but it was also discovered that the St. Charles School for Boys badly neéded some oil. The total purchase price of the oil was $90.00. The State received a credit for the merchandise returned in the sum of $26.55, which consisted of 50 gals. No. 1191, 53 gals. No. 1145 and tax refund of $.77.

Apparently some controversy arose over the return, but even though the oils as purchased did not meet the requirements of the St. Charles School for Boys, the school did use the greater portion of the oil. We now find that the amount due the claimant is the sum of $63.45.

In many cases this court has held that where a claimant has rendered services or furnished supplies to the State on the order or request of an official authorized to contract for the same, and submits a bill therefor within a reasonable time, and due to no neglect or fault on the part of claimant, same is not approved and vouchered for payment before the appropriation from which it is payable lapses, an award for the reasonable and customary value of the services or supplies will be made where at the time the expenditure was contracted there were sufficient funds remaining in the appropriation to pay for same.

We, therefore, make an award to the claimant, Cities Service Oil Company, a corporation, in the sum of $63.45.


author: Mb. Chief Justice Hollebich

text:
    (No.3189
    School Directors of District No. 66, County of Saline and State of Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1939.

    Lynndon M. Hancock, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

Claimant seeks to recover the sum of $1,129.42 which it claims is due and owing to it under the terms and provisions of an Act of the General Assembly of the State of Illinois entitled “An Act to Enable School Directors and Boards of Education to Establish and Maintain Classes and Schools for Crippled Children, and Providing for Payment from State Treasury of the Excess Cost of Maintaining and Operating Such Classes and Schools Over the Cost of Maintaining and Operating Schools for Normal Children,” approved June 19th, 1923, as amended. (Illinois Revised Statutes, 1937, Bar Association Edition, Chapter 122, Section 685A et sec.)

Such statute provides, among other things, that the aggregate excess cost of the maintenance of schools for crippled children, as determined, computed and reported by the board of education shall be a charge against the State of Illinois, and that such excess) cost shall be paid annually to such board of education on the warrant of the Auditor of Public Accounts out of any money in the treasury appropriated for such purpose, provided that such excess cost shall not exceed $300.00 for each crippled child.

In addition to its school for normal children, claimant maintained a school for crippled children during the school year July 1, 1936 to June 30, 1937, and its claim in this behalf is for the excess cost of maintaining such school for crippled children for such school year.

On or about June 5th, 1937 claimant made a report to the Department of Public Welfare of the respondent, on blanks furnished by such department, giving detailed information concerning the cost of maintaining the school for normal children and the school for crippled children, and the amount of its claim in connection therewith. The Department of Public Welfare, through its authorized representatives, objected to the report as presented, and wrote to claimant with reference thereto. Subsequent thereto there was further correspondence regarding the claim, several conferences between the interested parties, as well as several audits of the books and records of the claimant.

The record discloses that there were numerous errors in the bill of particulars attached to the original complaint herein, as well as in the several preliminary audits made at the suggestion of the welfare department of the respondent. Pending a determination of the correct amount due claimant, the respondent paid to said claimant the sum of $1,156.43 to apply on account. A final audit was made by Weldon Neunreiter, traveling auditor of respondent, under date of May 5tli, 1939, from which the following facts appear:—

1. That the total cost of maintenance of claimant’s school for normal children for the aforementioned school year was $6,992.99; that the average monthly enrollment of normal children was 201; that the average cost per normal child for said school year was $34.79.

2. That the total cost of maintenance of claimant’s school for crippled children for said school year was $2,887.72; that the average monthly enrollment of crippled children was 17.3; that the average cost per crippled child for said school year was $166.92.

Deducting the average cost per normal child from the average cost per crippled child leaves an excess cost of $132.13 per crippled child. Upon that basis the total excess cost for the maintenance of the school for crippled children for the said school year was $2,285.85.

Deducting the sum of $1,156.43 heretofore paid by respondent, leaves a balance of $1,129.42, which amount is due to claimant under the provisions of the aforementioned Act.

The appropriation made by the 59th General Assembly for State aid to cover the excess cost of education for crippled children in the public schools lapsed September 30th, 1937. At that time there was an unexpended balance in such appropriation of $20,070.71, being greatly in excess of the amount of this claim.

Award is therefore entered in favor of the claimant for the sum of Eleven Hundred Twenty-nine Dollars and Forty-two Cents ($1,129.42).


text:
    (No. 2403
    Peter J. Crowley Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1939.

    Taylor, Miller, Busch & Boyden, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks an award of $11,580.54, together with interest thereon at five (5) per cent per annum from the 28th day of November, 1932, said sum representing the alleged cost, over and above the contract price, which claimant incurred in the replacement' of peat in the construction of 6.939 miles of S. B. I. Route No. 53 in Cook and DuPage counties. The contract in question was nfade in April, 1932, and under the terms thereof there was incorporated therein the Notice to Contractors, Special Provisions, Proposal, Contract Bond, Plans, and the Standard Specifications for Road and Bridge Construction adopted by the Department of Public Works & Buildings under date of January 2, 1932.

The record discloses that prior to the proposal and contract in question, respondent had on several other occasions requested bids for the construction of the section involved. In the first request for bids in May, 1931 the amount of peat replacement was approximated at 75,500 cubic yards. In August and September of 1931 bids were again requested and peat replacement was approximated at 2,500 cubic yards. The change in the estimated amount of peat replacement was due to a proposed line change in the route in order that certain peat deposits might be eliminated. The original plans indicated peat between Stations 141+00 and 152+00 at a maximum depth of 24% feet; also between Stations 213+00 and 214+00 of a maximum depth of 5 feet. After claimant’s bid was accepted and the formal contract executed a line change was made which eliminated the peat between the first two stations.

In April, 1932 claimant commenced excavation on the project as relocated, and encountered peat between Stations 213+00 and 214+00 reaching a maximum depth of 11 feet, and of a maximum depth between Stations 152+00 and 155+50 of 27 feet. Claimant notified respondent of the increased quantity of peat found and was instructed to proceed to remove same. The total amount of peat replacement on the project turned out to be 22,857 cubic yards instead of 2,500 cubic yards as approximated at the time claimant submitted his final bid.

Respondent has paid claimant for the entire 22,857 cubic yards of peat replacement at the contract price of 74c per cubic yard.

Claimant has heretofore been paid $198,523.61 and now seeks as extra compensation the difference between the amount received for the replacement of the 22,857 cubic yards of peat at 74c per cubic yard ($16,914.18) and the amount which it represents the costs to have been of extra excavating of the additional amount of peat found. The work of removing the peat was done under an arrangement between claimant and the Thomas McQueen Company under which the latter agreed to remove the 2,500 cubic yards at 74c per cubic yard and the balance of the 22,857 cubic yards to be paid for on the following basis:

1. The cost of the labor furnished.
2. Rental for equipment used. (Computed under Holoway schedule.)
3. Premiums on compensation insurance on employees on project.
4. Materials furnished.
5. Fifteen per cent on labor and materials for overhead and profit.

Respondent contends that acceptance by claimant of the last payment on the contract in chief operated as a release for all claims under the contract or for anything done or furnished in connection therewith. Respondent also contends that under the provisions of Article 4.3 of the Standard Specifications it had the advantage of calling for peat replacement in excess of the estimated 2,500 cubic yards, and that its liability of payment therefor would be at the contract .price of 74c per cubic yard, providing the total amount of peat replacement did not exceed twenty-five (25) per cent of the amount of the entire contract; that the increase in this item to 22,857 cubic yards at 74c equals $16,914.18, which latter amount is not in excess of twenty-five (25) per cent of the entire amount of the contract, $198,523.61; that as claimant has been paid the said amount of $16,914.18 it has received the full amount due under its contract and is not entitled to an award.

Respondent also contends that the estimated quantity of peat replacement was not in the nature of a guaranty or warranty and that claimant was obligated to remove the additional amount of peat at the contract price.

We cannot agree with the contentions urged by the Attorney General in behalf of respondent. There is a radical difference not only in the amount of work but in the manner in which the labor must be performed, and of the machinery used, in the removal of peat at a depth of 24 feet to 27 feet. When the State changed its advertisement for bids and called attention to the fact that it was eliminating the replacement of peat at a low depth and in a large quantity, the bidder was justified in replying upon the belief that the State had definitely determined the conditions and had found that there would be a comparatively small amount of peat at a slight depth. This is true to a much greater degree than if there had merely been one estimate made, and the variance had thereafter appeared. As stated by Justice Brandéis in the case of United States vs. Spearin, 248 U. S. 132

“The responsibility of the owner is not overcome by the usual clauses requiring builders to visit the site, to check the plans and to inform themselves of the requirements of the work * * * where it appears that the contractor was misled by erroneous statements in the specifications.”

In the case of Sartoris vs. Utah Construction Company, 21 Federal (2d) 1, the specifications indicated solid and loose rock. When the plaintiff started work he found there was a formation of unusually fine loose sand, which greatly increased the cost of his excavation and construction work. The court there said:

“As we read the language, it was equivalent to saying to prospective bidders or contractors. ‘You may bid in the expectation,’ or ‘in submitting your bids and in contracting, you may assume, that part of the tunnel excavation will be in earth formation and the remainder will be in solid rock, with possibly a short distance in loose rock, or a combination of all three; and by referring to the accompanying drawings you will see that the design is suited to such, and only such, a formation.’ So read, it constituted a warranty.”

In the above case the court held that the plaintiff was entitled to recover for the extra work. Respondent attempts to distinguish the Sartoris case by insisting that in the case at bar claimant did not encounter a material, different from that provided for in the contract. We believe that the changes which he did encounter were as material as those in the Sartoris case.

Claimants’ Exhibit 1-B is a letter from the Division of Highways under date of August 19, 1931 in which the then Engineer of Design stated to claimant—

“Since sending out proposals (for the work in question) an error was discovered in the schedule of prices. The item of peat replacement under this schedule was listed as 75,500 cubic yards. The correct quantity for this item is 2,500 cubic yards. Will you therefore, kindly correct the quantity of peat replacement listed in the schedule of price in the copy of the proposal which was sent to you?”

The record shows that when claimant was thus informed it relied on the representation made. From a stipulation filed herein it appears that claimant had made a bid in answer to the request therefor under date of May 12, 1931, wherein the peat replacement was estimated at 75,500 cubic yards, and in that bid claimant listed the peat replacement at 95c per cubic yard. Pursuant to the above notice and change claimant reduced its unit bid price from 95c per cubic yard to 74c per cubic yard. It also appears by the stipulation that the old plans showed peat between Stations 141 and 152 reaching a maximum of 24% feet in depth; that peat between Stations 152 and 155% on the relocated line actually reached a maximum depth of 27 feet.

Claimant contends that it should be compensated for the additional cost of peat replacement and that the amount should be the actual sum which it was required to actually pay in order to remove the peat in the extra quantity and at greater the depth encountered; that the amount of the claim submitted is the actual cost which it so incurred.

As above stated, we recognize that the removal of peat at a great depth is more costly per cubic yard than would be the removal of same near the surface. The cost per cubic yard is greater for many reasons as shown by the record herein. Ho better guide as to the computation of such difference can be found than the bids and prices quoted by claimant itself. When it expected to encounter 75,500 cubic yards at a depth of 24 feet it made a bid of 95c per cubic yard for peat replacement. When it was informed that the amount would be 2,500 cubic yards at an approximate depth of 5 feet it reduced its bid to 74c per cubic yard. The amount actually encountered was 22,857 cubic yards and the depth varied from 5 feet to a maximum of 27 feet.

The difference in the price bid by claimant is 21c per cubic yard. The additional amount of 22,857 cubic yards at 21c per cubic yard amounts to $4,799.97. This computation does not eliminate the 2,500 cubic yards for which claimant was willing to bid 74c, for we believe the price of 95c per cubic yard should, from the evidence, be the correct price on the total quantity. We accordingly find that claimant is entitled to the additional sum of $4,799.97 in full payment of additional work encountered as hereinabove set forth.

An award is therefore hereby made in favor of claimant for the sum of $4,799.97.


author: Mr. Chief Justice Hollerich

text:
    (No. 2935
    Anna Tull, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 21, 1939.

    B. I. Dove, Attorney for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Above case again comes before the court pursuant to a petition for lump sum settlement in accordance with the provisions of Section Nine (9) of the Workmen’s Compensation Act.

On October 14th, 1936 award was entered in favor of the claimant for the sum of Thirty-three Hundred Ninety-eight Dollars and Sixty Cents ($3,398.60) payable in Four Hundred Fifteen (415) weekly installments of Eight Dollars and Seventeen Cents ($8.17) commencing May 17th, A. D. 1936, and one final payment of Eight Dollars and Five Cents ($8.05). Tull vs. State, 9 C. C. E. 308.

Claimant now asks for a lump snm payment of One Thousand Dollars ($1,000.00), in order that she may pay the balance due on her home, the balance due on the funeral expenses of her husband, and a number of small outstanding accounts.

Mr. M. K. Lingle, engineer of claims of the respondent, has filed herein a report, from which it appears that it is to the best interest of the petitioner that the prayer of the petition be granted.

The question as to whether the provisions of the Workmen’s Compensation Act relative to lump sum payments apply to cases in which the facts are similar to the facts in the present case, was considered by our Supreme Court in the case of Illinois Zinc Co. vs. Ind. Com., 366 Ill. 480. In that case, as in this, the deceased employee left him surviving his widow and no child or children whom he was under legal obligation to support at the time of his- injury. The Supreme Court in that case pointed out that the provisions of Section Nine (9) of the Workmen’s Compensation Act have reference to a commutation of the “compensation, or any unpaid part thereof,” and authorize the payment of a lump sum only when it is for the ‘ ‘ best interests of the parties; ’ ’ that under the provisions of Section 7a and Section 21 of the Workmen’s Compensation Act, the right to receive compensation would be extinguished by the remarriage or death of the widow; that although it might be for the best interests of the widow, it certainly could not be for the best interests of the employer to allow a lump sum; and in that connection the court said:

“The award in this case was not for a definite sum of money payable at all events over a definite period of years and months but was contingent in its nature. It was, in legal effect, an award that if the widow should live so long and should remain unmarried she should have and receive the specified payments at the specified intervals, not exceeding, in all, the sum ■of $4,000 00. This measured the extent of the employer’s liability to pay and it cannot be said that when this petition was filed under Section 9 of the Workmen’s Compensation Act, there was any certain sum which could be described as ‘such compensation or any unpaid part thereof.’ Neither can it be said that this kind of an order is to the best interest of the parties. It might or might not be to the best interest of the surviving widow, but it ■clearly could not be in the interest of the objecting employer, and the section is only applicable where it is shown or admitted to be to the best interest ■of both parties.
“It is our opinion that Section 9 is not applicable to an award such as this, which is uncertain and contingent in its duration and amount. To hold otherwise would be to deprive the employer of due process of law and the equal protection of the law and would render the entire section unconstitutional. A commutation of the last 102 weeks of compensation in this case would be as absurd from a legal standpoint, as if the Governor should attempt to commute the last one-half or one-third of a life sentence.”

Under the law as laid down by our Supreme Court in the Illinois Zinc Company case, we have no authority to order a lump sum payment under the facts in this case, and claimant’s petition therefore must be denied.


author: Mr. Justice Linsoott

text:
    (No. 2741
    Walter Volland, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1939.

      Rehearing denied August 16, 1939.

    Willis Melville, Attorney for claimant.
    Otto Keener, Attorney General and Glenn A. Trevor Assistant Attorney General, for respondent.
   Mr. Justice Linsoott

delivered the opinion of the court:

The claimant, Walter Volland alleges in his complaint that on the 2nd day of December, 1933, he was employed by one Edward Formanek who was then Superintendent of the Cicero Branch of the Illinois State Employment Service and upon the acts, representations, directions and requests of said Formanek, he performed his services in the capacity of file and re-write clerk in the Cicero Branch of the agency that he was to receive as compensation therefor and as an employee of the Department of Labor the sum of $25.00 per week. It is further alleged that four weeks later the weekly salary was adjusted to the sum of $24.00 per week and that commencing December 2, 1933 claimant did perform and complete the duties of a file and re-write clerk, from the last mentioned date to January 1, 1934 at the rate of $25.00 per week and for a period of 62 weeks.and three days from February 15, 1934-to May 1, 1935 for the sum of $24.00 per week, and in this manner having earned the sum of $1,600.00 for which he received nothing.

The Attorney General contends that the Superintendent Formanek had no power or authority to employ this man. It is admitted that he fully and faithfully performed all the duties of the position at the time alleged. The State provided him with a place in which to work and his Superintendent directed him what to do. The evidence shows similar employment.

The State, having created a set of circumstances commonly called temporary employment, and accepted Volland’s services with full information and knowledge of all material facts, asks why Volland continued to act without compensation in due course. He needed the employment and stated that he had requested pay on numerous occasions and was. always advised that it would be forthcoming. It appears in the evidence that Dr. Atwood, the Director of the employment service, had frequently seen this claimant on the job.

We feel that he earned the compensation he asked for and that at all times his conduct was fair and reasonable.

We therefore make an award in the sum of Sixteen Hundred ($1,600.00) Dollars in favor of Walter Volland.


text:
    (No. 3018
    City of Jacksonville, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 14, 1939.

      Rehearing denied August 16, 1939.

    E. W. Cleary, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Per Curiam:

The claim was: filed by the city of Jacksonville on October 26, 1936 and alleges that during the year ending June 30th, 1935, the city of Jacksonville permitted the State of Illinois to discharge sewage from the Illinois State School for the Deaf, the Illinois State School for the Blind and the Jacksonville State Hospital, all located in the City of Jacksonville, into the two sewage treatment plants operated by the City of Jacksonville; that according to an agreement previously entered into and according to a previous course of dealings which had been established between the parties with reference thereto, the State of Illinois should have paid to the claimant such proportionate share of operating the costs of said plants as the population of said institutions bears to the general population served by the said plants respectively; that consequently the respondent is indebted to claimant in the amount of $422.16 for its proportionate share of the operating costs of the North Side Sewage Treatment Plant applicable to the Illinois State School for the Deaf in accordance with its just proportion; and it is also charged that the State is indebted to the City of* Jacksonville in the amount of $2,201.18 for its proportionate share of the operating costs of the South Side Sewage Treatment Plant applicable to Jacksonville State Hospital and in the amount of $172.21 as its proportionate share of the operating costs of the South Side Sewage Treatment Plant applicable to the Illinois State School for the Blind, all of which is particularly set forth in the Bill of Particulars attached to the complaint. It appears that the City had presented the aforesaid claims to the Managing officers of the respective Institutions above mentioned and the said officers in turn referred the matter to the State Department of Public Welfare; that Dr. G-. C. Brown, Managing Officer of the Jacksonville State Hospital in turn received from the Fiscal Supervisor of the Department of Public Welfare a certain letter stating that the appropriation from which said claims should have been paid had been exhausted and that it would be necessary to file such claims in the Court of Claims. It appears from the record that the 56th General Assembly of the State of Illinois in 1929 appropriated to the Department of Purchases and Construction the sum of $212,237.98 or so much thereof as was necessary to pay the State’s proportionate share of the estimated cost of said Sewage District Projects for the City of Jacksonville, and the 56th General Assembly also made appropriations of $7,000.00 to pay the State’s proportionate share of the cost of operation of said plant to September 1, 1931; and it appears by stipulation made on behalf of the Attorney General and the City Attorney of the City of Jacksonville that since the establishment of said sewage treatment plants during the year 1930 and continuously down to the present time, the City of Jacksonville has permitted the sewage from the Illinois School for the Deaf to flow into the North Side Sewage Treatment Plant and the sewage from the Illinois School for the Blind and the Jacksonville State Hospital to flow into said South Side Sewage Treatment Plant and such sewage has been treated the same as other sewage in the City of Jacksonville and that in each instance the State of Illinois was charged for the respective Institutions a proportionate share of the cost of operating the Plant serving the respective Institutions for each year in question, this proportion having* been based upon the average of the percentage which the population of the respective Institutions bore to the population of the entire district served by the respective Plants, and the percentage that the sewage flow of the respective Institutions bore to the sewage flow of the district served by the respective plants. In each instance the several amounts charged for the respective Institutions for the several years subsequent to the construction of the plants were paid by the State except for the year ending June 30, 1935, for which year no statement was rendered by the city, until after the lapsing of available appropriations. It also appears by stipulation that the reports of the Auditor of Public Accounts show that on September 30, 1935 there remained unexpended in the Appropriation made to the Department of Public Welfare for the Biennium ending June 30,1935, more than $2,740.38 which is the total of the three items, for which payment is hereby sought.

“Wliere claimant has rendered services or furnished supplies to the State on the order or request of an official authorized to contract for the same, and submits a bill therefor within a reasonable time, and due to no neglect or fault on the part of claimant, same is not approved and vouchered for payment before the appropriation from which it is payable lapses, an award for the reasonable and customary value of the services or supplies will be made where at the time the expenditure was contracted there were sufficient funds remaining in the appropriation to pay for same.”
Indian Motorcycle Co., etc. vs. State, 9 C. C. R. 527.

In this case the amount involved is not disputed and it is admitted that the service was rendered as set forth in the complaint herein. We therefore make an award in favor of the City of Jacksonville in the sum of Two Thousand Seven Hundred Forty and 38/100 ($2,740.38) Dollars in payment of the State’s just proportion for the treatment of sewage at the City of Jacksonville for the said Institutions, namely, Jacksonville State Hospital, Illinois School for the Deaf and Illinois School for the Blind for the year of 1935.