text:
    (No. 98-CV-0811

      In re Application of Darnell Malone

      Opinion filed May 9, 2000.

    Darnell Malone, pro se.

    James E. Ryan, Attorney General (Kimberly M. Pate, Assistant Attorney General, of counsel) for Respondent.
   OPINION ON REHEARING

Epstein, J.

This crime victims compensation application is back before the Court on rehearing, following an evidentiary hearing before Commissioner Stephen R. Clark held pursuant to the Crime Victims Compensation Act (the “Act”) (740 ILCS 45/1 et seq.) to reconsider and to reopen the case following our initial order denying this application.

An order was entered by this Court on September 29, 1998, denying the claim on grounds that the Claimant failed to cooperate with law enforcement officials in the apprehension and prosecution of the assailant, in that he refused to identify the assailant. The Claimant made a timely request for a hearing pursuant to section 13.1 of the Act. A hearing was held before the undersigned Commissioner Stephen R. Clark on December 10, 1999. The evidence consists of testimony of the Claimant, a police report and bills submitted by the Claimant documenting expenses incurred for medical treatment.

The Claimant testified that he was walking home from a bar on the night of August 8, 1997, when he was shot in the back of the neck. The Claimant next recalls waking up in a hospital a day after the incident. There was conflicting testimony on whether the Claimant identified the assailant or refused to identify the assailant on the night of the incident. The Claimant introduced a letter from the attending physician that due to the traumatic nature of the Claimants injuiy, it is likely that the Claimant would not be able to recall how he received his injury.

At the encouragement of the police officers, the Claimant went to a hypnotherapist in an attempt to recall who had shot him. The Claimant testified that he received an anonymous call indicating that the assailant was James Webb. The Claimant testified that he informed the police officers investigating the incident of the name of the alleged assailant but that he could not be positive that James Webb shot him.

Section 6.1 of the Act states that a person is entitled to compensation under the Act if the applicant has cooperated fully with law enforcement officials in the apprehension and prosecution of the assailant. The State contends that the Claimant declined to cooperate fully with law enforcement officials in the apprehension and prosecution of the assailant in that he refused to identify the assailant. While the medical reports indicate that the Claimant would not tell who shot him, the medical reports and the letter from the attending physician indicate that the Claimant was in no condition to furnish reliable statements as he had undergone a traumatic event.

In In re Application of Lewis (1992), 45 Ill. Ct. Cl. 489, the Court reversed a denial of claim, where it was shown that the Claimant cooperated to the best of his abilities in apprehending the suspect where the Claimant was sedated and had undergone surgery after being stabbed. Id. at 490.

The State alleges that the Claimant has failed to positively identify the alleged assailant. The Claimant has informed the police of who the assailant might be, however, the Claimant cannot be positive that James Webb was the assailant. The Claimant should not be forced or induced to identify someone as the assailant if he is not positive of the person’s identification. The requirement under the Act is to cooperate, not to successfully prosecute. This Court finds that the Claimant has cooperated to the best of his abilities in the apprehension and prosecution of the assailant.

The Claimant seeks compensation under the Act for medical bills and lost wages. However, the medical bills were discharged in bankruptcy. Section 18(c) of the Act allows the Court to order that all or a portion of an award be paid jointly to the applicant and provider of services. The Court in In re Application of Bolte (1984), 38 Ill. Ct. Cl. 424, modified payment of compensation where the Court had previously ordered to be paid a joint check payable to the Claimant and the hospital. There, the hospital had “written off’ the amount owed to it by the Claimant. Id. at 427. The Court reissued payment to the Claimant to include only his loss of earnings. Id. at 427.

The Court recognizes that there is no justification to award the Claimant his medical expenses, since his debt for those expenses was discharged in bankruptcy. However, the Act does allow compensation to be paid to the medical providers for unpaid medical expenses that are otherwise compensable under the Act. The Claimant also introduced evidence of the amount of time that he could not work as a result of the incident. However, the Claimant failed to establish his hourly wage.

Therefore, this Court reverses its order of September 29, 1998, and allows the Claimant an opportunity to submit documentation on his hourly wage to compute the loss of earnings that are compensable under the Act.

Order

For the foregoing reasons, it is hereby ordered:

1. This Court’s order of September 29, 1998, is vacated;
2. This case is reopened and reversed;
3. The Claimant is directed to submit documentation on his hourly wage to compute the loss of earnings that are compensable under the Act with copies to the Attorney General within 30 days of the date of this order identifying the amount of the award that should be paid to the Claimant; and
4. The Respondent is directed to investigate the compensation due to the Claimant and to any medical providers. The Respondent shall file a report with the Court within 60 days of the date of this order identifying the amount of the award that should be paid to the Claimant or to others in accordance with the Crime Victims Compensation Act and this order.


source: Caselaw Access Project

author: Epstein, J.

license: Public Domain

text:
    (No. 98-CV-1028

      In re Application of Donna L. Balsavich

      Opinion filed September 25, 2000.

    Brian McManus, Jr., for Claimant.
    James R. Ryan, Attorney General (Kimberly M. Pate, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

This cause is before the Court of Claims on a recommendation from a Commissioner of this Court following a hearing. This Court denied Claimants application for benefits under the Crime Victims Compensation Act (740 ILCS 45/1 et seq.), on September 28, 1998, on the basis that the victims injuries were substantially attributable to, or provoked by, the victims own wrongful actions as proscribed by section 6.1(d) of the Act.

Claimant filed a timely request for a hearing. A hearing was held before Blanche Hill Fawell, a Commissioner of this Court on January 11, 2000.

The facts in this case are not in dispute. On April 25, 1997, the victim, Brian Balsavich, was traveling westbound on Route 30 in Frankfort, Illinois. Route 30 is a two-lane paved roadway at that point. The offender pulled out of a parking lot making a right-hand turn. He swung wide and crossed over the double yellow line striking the victim’s pick-up truck on the driver’s side rear area. There was minimal damage to the victim’s vehicle and the offender’s vehicle lost the lens surrounding the left front headlight.

After striking the victim’s truck the offender fled the scene and was followed by a witness to the accident. The offender was eventually stopped. The offender’s blood alcohol level was .10.

After being hit, the victim made a U turn and proceeded eastbound on Route 30. Approximately 200 yards from where the accident occurred, the victim was found slumped over the steering wheel. Attempts to resuscitate him were unsuccessful and he was later pronounced dead. There was an open can of beer and several other cans of beer found in the victim’s truck. Also found in tire victim s truck in the drivers side door was a Taser stun gun. The first blood alcohol test showed the victim s blood alcohol level to be 116 mgm. A test take some 14 hours later showed the level to be 30 mgm. The Claimant introduced a letter from a physician stating that neither result should be relied upon due to the disparity in the results.

The offender pled guilty to aggravated driving under the influence. The charge of reckless homicide was nolle prossed as part of the plea agreement.

The Cook County Medical Examiner stated that the cause of death was a subarachnoid hemorrhage due to arteriovenous malformation. In laymans terms the victim suffered a broken blood vessel in his brain. This broken blood vessel was caused by a pre-existing condition of which the victim was unaware.

The Medical Examiners report states that “a factor significantly contributing to his death is stress due to the automobile accident.” The attorney, who represented the offender in the criminal case, told the Will County Court on April 1, 1998, that it was the opinion of a Dr. Berstrand that, while he could not rule out the accident as a source of stress that caused the victim s injury, “these injuries can occur spontaneously.”

After the hearing, the Court left the record open to allow the parties to submit additional evidence. The office of the Attorney General submitted a copy of the victim’s driving abstract, showing that in 1989 the victim was arrested for driving while under the influence of alcohol. The victim was placed on court supervision. The Claimant objected to the introduction of the abstract.

There were two issues which were litigated at the hearing. The first was whether there was any misconduct on the part of the victim which contributed to his injuries. The specific question was whether or not the victims intoxication contributed to his death.

The Court finds no evidence that the victims intoxication contributed to the occurrence of the accident. Specifically there was evidence presented that there was absolutely no way for the victim to have avoided being hit by the offenders car. Secondly, there was no evidence presented that the victims intoxication in any way caused the subarachnoid hemorrhage.

The second issue presented was whether or not the victims injuries were caused by a violent crime. There is no issue as to whether or not a violent crime occurred. The offender pled guilty to aggravated driving under the influence, a violent crime as defined by the Act.

The Claimant has the burden of proving that the cause of death was the proximate result of a violent crime. In re Application of Mary Joanne Urban (1993), 46 Ill. Ct. Cl. 591.

It is the position of the Claimant that the stress of the accident caused the victim to suffer the subarachnoid hemorrhage. In other words, but for the violent crime the subarachnoid hemorrhage would not have been triggered.

The position of the office of the Attorney General is that the victims death was the result of a pre-existing medical condition which could have been set off by any one of the numerous stress factors which were present.

The State argued that several circumstances existed which could have triggered the victims subarachnoid hemorrhage. First was the fact that the victim was driving while under the influence of alcohol with a fair amount of open liquor in the cab of his pick-up truck. Second, the State argued that the victim suffered from an advanced condition of glaucoma and that this was an additional stress factor.

Third, the State argued that the accident itself could not have induced enough stress to trigger the victim’s pre-existing condition. The offender, who testified at the hearing, stated that he “barely tapped” the pick-up truck. The photographs which were introduced into evidence show minimal damage to the victim’s vehicle. The victim suffered no physical trauma as a result of the accident and the truck was clearly driveable.

The issue to be decided by the Court is whether or not the victim’s death was the result of the commission of a violent crime. The accident was the result of the violent crime of driving under the influence of alcohol. The next issue is whether or not the victims death was the result of the accident.

The accident alone clearly did not cause the victim’s death. There was only slight damage to tire victim’s pickup truck and the victim suffered no physical injuries from the accident.

The causes of death listed on the death certificate are subarachnoid hemorrhage due to arteriovenous malformation with “stress automobile accident” listed as a condition contributing to but not resulting in the underlying cause listed above. The death certificate states that the victim died from a damaged blood vessel in his brain that leaked causing his death. This blood vessel bled as a result of a congenital defect. Stress is listed as a factor which contributed to the blood vessel bleeding at that particular time. Stress is not listed as the cause of death but rather a condition contributing to the cause of death.

The report of postmortem examination by the Cook County Medical Examiner’s Office states that “a factor significantly contributing to his death is stress due to an automobile accident.” The Court understands this report to say that the victim died as a result of a subarachnoid hemorrhage which occurred as the result of a congenital malformation of the blood vessels in the brain. The blood vessels ruptured at that particular moment due to stress.

The Court does not believe that the medical examiner can state with exact certainty what the stress was which caused the bleeding to begin. The Claimant argues that the stress was due solely to the accident. The State argues that the victims stress was the result of driving while under the influence of alcohol and the fear of being caught and arrested.

The Court notes that, in addition to the offense of DUI, the victim was committing the offense of unlawful use of a weapon by keeping the Taser stun gum in the drivers side door of his pick-up truck. Additionally, if the victim was arrested for DUI he would be ineligible for court supervision as he had received supervision for DUI within the past 10 years. The victim was also committing the offense of transportation of open liquor in a motor vehicle.

The Court finds that a violent crime has occurred. The Court finds that any award to the Claimant shall be reduced by 50% based on the extent that the victim’s acts of driving under the influence of alcohol and committing the offense of unlawful use of weapon and transportation of open liquor caused the stress which contributed to his death.

The Claimants attorney, Brian McManus, Jr. filed a petition for attorney’s fees, requesting that he receive 25% of whatever the Claimant recovered in this matter. Mr. McManus stated that he already has a contingency fee arrangement with the victim’s estate which entitles him to receive one-third of any award the Claimant receives.

The Commissioner issued an order stating that the Act does not permit the awarding of contingent fees. The Act states that attorneys fees shall only be awarded in such amounts as the Court deems reasonable. The Court must examine the amount of time spent and the experience of the attorney in order to determine what constitutes a reasonable award of attorneys fees.

An award made under the Crime Victims Compensation Act differs significantly from a recovery in a personal injury case. Under the Act, an award can only be made for actual expenses or for actual monies lost. There are no awards for pain and suffering nor for attorneys fees. Every dollar granted as an award for attorneys fees under the Act must come from either monies awarded for medical and funeral expenses or from lost earnings.

Mr. McManus then submitted an amended petition for attorneys fees which stated that he performed 20 hours of work and bills at an hourly rate of $200. He requested a total of $4,000. There was no itemization of what work was done during these 20 hours.

Mr. McManus then submitted a first amended petition for attorneys fees. Attached to this was an itemization of the 20 hours of work. The Court has grave doubts as to the accuracy of this bill. For example, Mr. Mcmanus states that he spent six hours on “Trial of the Crime Victims Compensation matter.” The Commissioner who was obviously present during the entire hearing recalls the hearing taking slightly less than three hours. The court reporter who was present during the entire hearing submitted a bill for three hours of court reporting.

Mr. McManus states that the total hours he worked on this case was 20. Yet, if all the hours he claims to have worked are added up the total comes to 1914 hours. It is difficult for the Court to seriously examine the hours listed in this petition as it is clear that the Court and Mr. McManus use different methods to measure time.

The Court finds that a reasonable fee for a hearing which lasted no more than three hours and the preparation involved is $1,000.

It is hereby ordered that the September 28, 1998, order of this Court denying Claimants application for benefits under the Crime Victims Compensation Act is reversed and this matter is remanded to the office of the Attorney General for preparation of an amended investigatory report within 60 days and that the Claimants attorney is awarded attorney’s fees in the amount of $1,000.


author: Mitchell, J.

text:
    (No. 98-CV-2650

      In re Application of Louis G. Apostol, on Behalf of the Estate of Mildred Wolf

      Order filed September 10, 1999.

    Louis G. Apostol, for Claimant.
    James E. Ryan, Attorney General (Kimberly M. Pate, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

This cause comes on to be heard on the Claimants request for reconsideration, due notice having been given, no response having been filed, and the Court being advised, finds:

In the Courts initial decision, which was issued on December 9,1998, compensation was denied based on the information provided in the investigatory report from the office of the Attorney General. The rationale was stated as follows:

“3. That the Claimant seeks compensation on behalf of the estate of the deceased victim under the Act for funeral and burial expenses.
4. That the Court has consistently held since the Court’s decision in the case of In re Application of Garland F. Daill, Jr., No. 77-CV-0716 that:
‘Although not specifically included among the class of potential beneficiaries under the Act, the estate of a deceased victim is eligible for benefits under the Act, if it is shown that tire person or persons who would inherit the estate had his or their portion or portions of the inheritance reduced by an amount for which he or they could have been reimbursed or compensated under the Act had they eventually paid out the amount themselves on behalf of the deceased victim.’
This reasoning is wholly applicable to the instant case.
5. That the funeral and burial expenses were paid by the estate in the amount of $3,620.69.
6. That predicated on the Court’s ruling, an estate of a deceased victim is eligible for compensation provided that the beneficiaries are eligible for compensation under the Act. [Crime Victims Compensation Act, 740 ILCS 45/1 et seq.]
7. That §6.1 of the Act indicates factors used to determine entitlement to compensation. Specifically, §6.1(d) of the Act [provides for compensation] if the beneficiary is not the offender or an accomplice of the offender and the award would not unjustly benefit the offender or his accomplice.
8. That available evidence indicates that the victim was fatally stabbed by her grandson, the alleged offender. The claimant is the administrator of the victim’s estate and the alleged offender is the beneficiary. Thus, an award to the claimant would unjustly benefit the alleged offender.”

In its request at bar, the Claimant posits that, even though the alleged perpetrator, Garrett De Toledo, may eventually be found guilty, other heirs, heirs who are innocent, should not be deprived of compensation. The Claimant seeks to have the decision modified so as to read that:

“The Estate of Mildred Wolf deceased is hereby awarded the sum of $3,620.69 as reimbursement for the funeral and burial expenses incurred by it provided and on condition that a court of competent jurisdiction finds that the deceaseds grandson, Garret De Toledo, shall not receive any property, benefit, or other interest by reason of the death of Mildred Wolf.”

We tend to agree with the Claimants position and will vacate the denial. However, we will not enter an award at this time. Although the Claimant has overcome the hurdle of the unjust benefit issue, the record contains no information that other heirs are persons who would otherwise be entitled to recompense for funeral expenses had they actually paid the expenses themselves.

It is therefore ordered that the opinion entered December 9, 1998, be and hereby is vacated; it is further ordered that this claim is referred back to the office of the Attorney General for further investigation and report on the issue noted above and any other potential defense not heretofore raised and the Claimant is to contact the office of the Attorney General and provide such additional documentation as is needed to resolve this claim.


author: Hess, J.

text:
    (No. 98-CV-2868

      In re Application of Hynether Russell & Mildred Hamilton

      Opinion filed March 29, 2001.

    Gleason & Shreffler (Douglas G. Shreffler, of counsel), for Claimants.
    Jim Ryan, Attorney General (Kimberly Pate, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Hess, J.

This cause is before the Court on a recommendation from a Commissioner of this Court following a hearing. This Court denied Claimants’ applications for benefits under the Crime Victims Compensation Act (740 ILCS 45/1 et seq.), on December 9, 1998, on the basis that the victim’s injuries were substantially attributable to, or provoked by, the victim’s own wrongful actions as proscribed by section 45/6.1(d) and on the basis that no violent crime as defined by the Act was committed.

Claimant filed a timely request for a hearing, and a hearing was held before Blanche Hill Fawell, a Commissioner of this Court on October 21, 1999.

At the hearing, Claimant, Mildred Hamilton, testified that her son, the victim, did not own a gun and that she had never seen him with a gun. She denied that he belonged to a gang. Hynether Russell, the victims aunt, testified that she paid for the victims funeral by obtaining loans from the Claimant, Mildred Hamilton and other family members. Counsel for Mrs. Hamilton then withdrew her application for reimbursement of funeral expenses. The only claim pending before the Court is an application for reimbursement of $3,495 for funeral expenses to Hynether Russell.

Claimant introduced into evidence diagrams of the scene, an Illinois Department of Corrections inmate form, autopsy report, police reports and supplemental police reports.

Counsel for the Claimants summarized the police reports. He stated that the victim was shot when he and Craig Winn were walking about the street and Winn pulled out a gun and began shooting at another individual across the street. Police officers, who were present, began shooting and the victim was shot in the back as he attempted to escape the gunfire.

Counsel argued that the victims conduct did not contribute to his death because there is no evidence that he was aware that Winn had a gun or that he would begin shooting. He argued that this claim is eligible for compensation under the Act under the theory of felony murder. He stated that Winns criminal actions of shooting at another individual across the street caused the police officers to pull out their weapons and shoot which caused the death of the victim when the officer shot him in the back.

The office of the Attorney General argued that the victim was a gang member who was acting as a lookout for Winn and therefore his conduct contributed to his death. They further argued that the felony murder theory did not apply because the police officers who actually shot the victim did not commit any crime, as the shooting was a justifiable shooting in the line of duty.

A review of the numerous police reports leaves no doubt that the victim Michael Russell, a/k/a Michael Davis, was an active member of the Vice Lords street gang. The most important evidence of this are the gang tattoos on both arms of the victim and a third on his left upper shoulder. These tattoos are of a five-pointed star and the Playboy Bunny head. These symbols are well known as symbols of the Vice Lord street gang.

In a statement to law enforcement officials, Craig Winn stated that he is a member of the Vice Lords street gang and that, in the week before the shooting, “there had been a lot of trouble between the Vice Lords and the Gangster Disciple street gang.” Specifically, earlier that day some Gangster Disciples had shot at a group of Vice Lords including Winn.

Prior to the shooting in question, Winn had retrieved a gun and then met up with the victim. As they were walking down the street, Winn saw a male whom he recognized as a Gangster Disciple. At this exact moment, the victim dropped back and stayed close to the building. Winn then shot at the Gangster Disciple. As he fired the three shots, the police officers who were directly across the street fired toward Winn hitting the victim.

There is no evidence that the victim had a gun on him. No one can be certain as to whether or not the victim was acting as a lookout for Craig Winn. There is no direct evidence that the victim was actually aware that Winn had a gun on his person.

However, there is strong evidence that the victim was an active member of the Vice Lord street gang and that his death was the result of this involvement in gang activity. Craig Winn admits that he is an active member of the Vice Lords. Despite the victims mothers testimony that he was not a gang member, the three gang tattoos on his body tell a different story. The intended shooting victim of Craig Winn, Marrio Morgan, stated to the police that he knew both Winn and the victim to be Vice Lords. Marrio Morgan also told police that “the Vice Lords and the Gangster Disciples have been getting into it for over two months.”

The victim and his companion Winn were readily identifiable with the Vice Lords. There had been a recent ongoing dispute with a rival street gang, the Gangster Disciples. Winns response when he was told that the victim was dead was, “Oh man, we grew up together.”

It was this active gang involvement that caused the victims death. Craig Winn, the victims friend and companion, pulled out a 22-caliber semi-automatic gun and attempted to murder a rival gang member by shooting across a public street. In an effort to stop the shooting and protect the people in the area, the police officers drew their weapons and fired toward the shooter Craig Winn. Winn was hit and injured. Michael Davis a/k/a Michael Hamilton, the victim in this case, was shot once and died as a result.

The Court has consistently denied an award where the shooting was gang related. (In re Application of Armstrong (1996), 48 Ill. Ct. Cl. 657.) In Armstrong, the victims clothing had gang graffiti and symbols. A friend of the victim told police that the victim was a Black Gangster Disciple and was at a certain location to meet with a rival gang to discuss a prior fight when he was murdered. The Court denied the claim on the basis that the shooting was gang related.

The case before the Court has a similar fact pattern. The Court finds that the victim was an active member of the Vice Lords. The strongest evidence of this is the three gang tattoos on the victims arms and shoulder. This gang membership is confirmed by several witnesses’ statements. Craig Winn, the shooter, was by his own admission an active member of the Vice Lords who was actively seeking retaliation for a gang related shooting earlier that day. Winn and the victim had been friends since childhood.

Based on this active gang activity, the Court finds that the victim’s conduct contributed to his death. Having made that finding the Court need not consider whether the theory of felony murder is applicable to this case.

It is hereby ordered that the December 9,1998, order of this Court, denying Claimant’s applications for benefits under the Crime Victims Compensation Act, is affirmed and that this claim is closed.


text:
    (No. 00-CV-1319

      In re Application of Carolin Goines

      Opinion filed March 27, 2001.

    Carolin Howard Goines, pro se.

    Jim Ryan, Attorney General (Kimberly M. Pate, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Hess, J.

This cause is before the Court on a recommendation from a Commissioner of this Court following a hearing. This Court denied Claimants application for benefits under the Crime Victims Compensation Act (740 ILCS 45/1 et seq.), on January 10, 2000, on the basis that Claimant failed to file an application within two years of occurrence of the crime as required by section 6.1(a) of the Act.

Claimant filed a timely request for a hearing, and a hearing was held before Blanche Hill Fawell, a Commissioner of this Court on August 23, 2000.

At the hearing, Claimant testified that after her son, Robert Howard, was murdered on June 13, 1996, she began to suffer severe clinical depression and also became a heroin addict. As a result she was unable to file her application within two years of the occurrence of the murder.

Claimant introduced into evidence various medical records. These documents show that the Claimant was admitted as an in-patient at Mt. Sinai Hospital where she was treated for major depression and heroin abuse from August 12, 1997, until August 25, 1997. The depression and drug abuse were caused by the murder of the victim.

Claimant testified that she was also treated for depression at Madden Mental Health Center and at another facility which has since closed. No medical records from these institutions were presented.

The statute of limitations for claims filed under the Illinois Crime Victim Compensation Act is contained in section 22(f) of the Act, which states that claims must be filed within one year of the crime. Section 22(h) states that this time limit is jurisdictional. Section 45/6.1 of the Act states that the Court may extend the filing period not to exceed one year upon good cause shown.

In order for the statute of limitations to be extended, the Claimant has the burden of proving that she was under a legal disability. (See section 13 — 211 of the Code of Civil Procedure, 735 ILCS 5/13 — 211.) The Claimant must prove the claim by a preponderance of the evidence. (In re Application of Bauldo (1992), 44 Ill. Ct. Cl. 449.) This legal disability must be so severe that the Claimant was prevented from filing the application on a timely basis.

The Court has considered the evidence presented in the light most favorable to the Claimant. The Court finds that the Claimant was suffering from legal disability, depression, from August 12, 1997 until August 25, 1997. There was no further evidence of treatment of depression except for the Claimant’s statements that she did receive treatment. No dates were provided to the Court nor were any medical records or doctor’s statements. In addition, the Claimant testified that she was a heroin addict until April 22,1999.

The murder of the victim took place on June 13, 1996. The Claimant has failed to submit proof to the Court that she suffered from legal disability after August 25,1997, when she was released from Mt. Sinai Hospital.

It is hereby ordered that the January 10, 2000, order of this Court denying Claimants application for benefits under the Crime Victims Compensation Act is affirmed and that this claim is closed.


author: Mr. Justice Phillips

text:
    (No. 1029
    Joseph Maze, et al. Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 28, 1925.

    Alvin C. Bohm and C. W. Burton, for claimant.
    Oscar B. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Phillips

delivered the opinion of the court:

This is a suit brought by Joseph Maze and ninety-five other farmers of Madison County, Illinois, against the defendant, State of Illinois, for the aggregate sum of Seven Thousand Five Hundred Eighty-nine ($7,589.00) Dollars alleged to be due them, respectively, as shown in a bill of particulars filed, for straw burned in 1921 in pursuance with an of the Department of Agriculture of the State of Illinois.

The defendant demurred and evidence was taken by the parties; abstract, agreement and brief were filed by claimants and the case argued orally before the court by Messrs. Burton and Burton, attorneys for claimants and by Mr. Floyd E. Britton, Assistant Attorney General, on behalf of the State.

There is no dispute as to the evidence in the case, which clearly establishes the material allegations in the declaration relative to the burning of the straw by defendant, the amount burned, its value and ownership in the claimants respectively. At the same time the evidence in this case was taken, evidence in the ease of William Balke and twenty-nine farmers of Madison County v. the State of Illinois, No. 26, was taken and rported with the evidence in this.case. The last mentioned case being for formaldehyde bought and used by the claimants in eliminating “flag smut” from the territory hereinafter mentioned. The evidence is that the claimants always had a market for their straw at a price much larger than the amount claimed.

The evidence discloses and the oral argument of counsel show that, perhaps some time in the summer of 1921 it was brought to the attention and knowledge of the Department of Agriculture of Illinois, that “Flag Smut” was present and attacking the wheat straw of some or all of complainants. Immediately after being so notified the said Department of Agriculture sent men of proper experience into the infested districts. Meetings and consultations were had between the State’s agents and the so-called “Flag Smut” committee and the owners of wheat in the territory infected. The Department of Agriculture determined it was necessary to quarantine the territory described in the declaration which embraced the wheat grown by claimants and others in years 1921 and 1922.

The proper notices were given by the said department, and the State entered vigorously into the work of controlling and stamping out said disease. An order was given for all wheat raisers within the territory so quarantined to burn the straw that grew upon their premises in the year 1921, except perhaps enough might be preserved with which to straw their potatoes, and that the wheat must be sprayed with formaldehyde as directed by the agents.

It appears that there was little, if any, protest against burning the straw, except, perhaps by one or two who reluctantly yielded; and all the claimants, willingly and intelligently complied with the order so given and did all in their power to aid the Department in eradicating the dangerous disease.

The State bought and paid for the formaldehyde in 1921; but in 1922 the owners of the wheat, at request of the State, bought and applied the formaldehyde, for which they have filed claims in this court, and the same allowed in another opinion filed in said No. 26 at the present term of this court. In 1922 the order was modified and the straw was not burned in that year. Subsequently the quarantine was raised, we suppose; but the evidence does not disclose that fact. Nobody ever put in any complaint of any grievance or objection to the procedure of the State in ridding the community of the said disease, and our opinion is that the Department of Agriculture acting under the statute in such case made and provided did its whole duty; and that the complainants acquiesced and greatly aided therein.

The contention of counsel for complainants is that the right of recovery in this case is governed by Paragraph 4, Section 6 of the Act to create a Court of Claims and to prescribe its powers and duties, passed and approved May 25th, 1917; in force July 1st, 1917. The paragraph is as follows: “To hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, excontractu and ex delicto, which the State as a sovereign commonwealth, should in equity and good conscience discharge and pay.”

On the 29th day of June, 1917, the Legislature of the State of Illinois, passed an Act known by the short title of “Plants Inspection Act of 1917 ’ ’, defining ‘1 insect pests and diséases ’ ’; “plants and plant products”, etc., and providing for the inspection of all public or private places which might become infected with insect pests or disease, etc.; and giving the Department of Agriculture of the State power, and making it is duty to inspect all places where insect pests and diseases of plants were suspected; the power to quarantine against the spread of same; the power to declare what is a public or private nuisance in connection therewith, and the power to destroy plants or vegetables so infected; and making it the duty of the Agricultural Department to eradicate such pests and disease, etc., and making it the duty of everybody owning plants or crops infected with such insect pests or disease to diligently aid the State in the control and extermination of such insect pests and diseases as shall have been by the Department of Agriculture declared a nuisance, etc. See Secs. 1, 2, 4,15,16, 21 of Chap. 5, pp. 114, 117, 118, 119, Cahill’s Annotated Statute, 1923.

It will be observed by reading the two acts above quoted from that they were both passed in the year 1917, and that the last act above mentioned was amended as late as 1919. We construe the statute as we find it, and in the light of legislative intent in the making thereof. It is evident to the court that in the passage of these laws for the purposes of controlling and eradicating injurious insect pests and diseases to plant life, it did not intend that the State should be liable for damages to the owners whose crops might be destroyed as public or private nuisances. Had it been the intention of the legislature to provide reimbursement for such pecuniary loss, it would have provided the method of calculating the, damages, and manner of paying the same, as it did in providing for the payment of diseased animals slaughtered by the- State. It is entirely within the police power of the State to control or abate nuisances private or public. In the exercise of this power by public officials it is often necessary to inflict a loss upon a private individual for his own as well as the public welfare. Where the pecuniary civil interest of an individual and that of the public are in conflict the private interest must ■ give way to that of the public.

Had there been no law governing the case at bar, these claimants would have profited as a community by combining their efforts and means in combatting and eradicating the enemy (disease) of their crops just as they have already done in a manner commendable to themselves and the State. We interpret the statute governing this case as we find it. We have no power to add to or to take from the provision and intent of the Statute. This law was passed at the same session (1917) of the legislature that enacted the law creating the Court of Claims and defining its powers and duties; and was amended in 3919 with no provision for the payment of damages as'claimed in this suit. The law quoted by counsel for claimants cannot, by legislative intent, as we view it, be construed to allow such claims.

In construing both of these acts we reach the conclusion that the claimants have no right of action in this case. . The demurrer is accordingly sustained and case dismissed.


author: Mr. Justice .Thomas

text:
    (No. 820
    James Garns, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1926.

      Rehearing denied September 13, 1927.

    James P. St. Cerne y, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice .Thomas

delivered the opinion of the court:

The declaration in this case was filed June 30th, 1924. It alleges that the claimant, while engaged as a laborer in the employment of the State on the hard road between Pekin and Orchard Mines in Peoria County, on the 2nd day of July, 1923, in elevating a concrete post, slipped and fell heavily to the ground and dislocated his hip, causing a permanent injury and rendering him unable to do any work. To this declaration the State has filed a general and special demurrer. Evidence was taken for both the claimant and the State.

There is no evidence in this record that in any way tends to prove claimant suffered a dislocated hip as charged in the declaration. The only evidence that claimant received an injury is his own statement. He testified that about 11 or 12 o’clock on the 2nd day of July, 1923, he, with others, was engaged in setting concrete posts along the hard road, and that while he and one MacMahon were elevating a post to put it in the ground MacMahon gave it a little push, throwing’ the weight on him, and one of his feet slipped and the weight of the post just spread him apart and hurt his hip; that at the lunch hour he could not sit down, to eat because of the pain, and the foreman, Mr. Buck, asked why he did not sit down and he told him he had hurt his hip putting in a post; that he was given lighter work during the afternoon, and when he got home sent for a.physician; that his physician, Dr. Balcke, ■came the next morning and treated him, and has been treating him ever since for sciatic rheumatism.

Claimant is not corroborated in his statement about the injury by any of the others who were present. A. A. MacMahon, Martin Horton and Louis A. Buck were all present working with claimant at the time he says he received the injury, Buck being the foreman. MacMahon testified that if claimant received any injury, he did not know it, that he made no statement to him about it- and continued to work with him at the same character of work the remainder of the day. Mr. Buck testified that he did not learn claimant had received an injury, that claimant did not tell him he had been hurt and that he continued to do the same character of work the remainder of the day, there being no lighter work to be done. Mr. Horton, who was working with them, also testified that claimant received no injury that day and that he continued to do the same kind of work during the afternoon as he had in the forenoon. Claimant never returned to work after the 2nd day of July, and testified that he has been unable to work since that time and under the care of a physician. Buck testified that three or four weeks before the day claimant alleges he received his injury, while the men were at lunch, claimant was walking around eating, and he said to him “Why don’t you sit down and eat your dinner”?, and claimant replied “My hip hurts”. Andrew Franklin also testified that he heard this conversation and that it occurred about a month before claimant quit work. Claimant admitted in his examination that some two or three weeks before he was injured he stated he had lumbago. Dr. Balcke testified that when he called to see claimant on the 3rd of July he was complaining of pains in the small of his back and that he treated him for lumbago, but that when he called the next time claimant said the pain had gone down his leg and he diagnosed the case as sciatic rheumatism and had been treating him for that ever since. He also said there was no swelling or other evidence of injury that could be seen, and that his hip was not- dislocated.

It is a fundamental principle that a party cannot make out one case by his pleadings and another by his evidence. Claimant’s declaration alleges he received a dislocated hip, which declaration was sworn to by claimant on the 27th day of June, 1924. Claimant’s evidence does not sustain this claim. In fact, there is no evidence that his hip was dislocated or injured in any way. We have carefully read the evidence in this case and do not believe claimant is entitled to recover for any injury. Before he is entitled to recover he must show by a preponderance of the evidence that he received an injury arising out of and in the course of his employment. The preponderance of the evidence shows that he was not injured in the manner and at the time he claims. (It does not seem reasonable that claimant could have received as serious an injury as he says he did and that the men working with him not have known it. He was 58 years old, and admits that he previously suffered from lumbago.) “The evidence tends to show that he may have had an attack of lumbago which was followed by sciatic rheumatism, but it does not show that it was caused by any injury received by him arising out of and in the course of his employment by the State. Claimant having failed to make the proof required by law, his claim is disallowed. ’ ’

On September 13,1927, upon petition for rehearing the following additional opinion was filed:

The original opinion in this case was filed on September 14th, 1926, and a petition for rehearing was filed on September 6,1927.

Under rule 30, a party desiring a rehearing in any cause shall within fifteen days after • filing opinion, shall file with the clerk, a notice in writing of his intention to ask for a rehearing, and after twenty-five days after filing the opinion, he shall file with the clerk, five copies of the petition with proof of service on opposite party.

This petition for rehearing was not filed within that rule.

The petition for rehearing does not set up any new matter, or anything that was not passed upon in the original opinion. Therefore, the petition for rehearing is denied.


text:
    (No. 687
    Moline Plow Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 10, 1927.

      Rehearing denied October 24, 1928.

    L. C. Shonts, for claimant.
    Oscar E. Carlstrom, Attorney General; Edward C. Fitoh, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

The claimant, a foreign corporation, presents claim for refund of payments demanded and collected from it by the Secretary of State as franchise taxes and initial fees in excess of the amount claimed legally due. We will not discuss .the legal merits of this claim or the particular phases of claimant’s contention as against the Secretary of State for collecting these fees, or whether or not the fees collected were excessive, illegally collected, or improperly collected as it is the intention of the court -to dwell only .upon the question of taking jurisdiction of cases wherein a remedy at law was provided by statutes in courts of general jurisdiction.

This court is impressed with the vast increase of demands filed in this court and consequently it is considered necessary and proper to establish a precedent in this line of cases in harmony with opinions heretofore announced in other claims, in that wherein a claimant had a remedy in a court of general jurisdiction and failed to pursue such remedy, that this court would not take jurisdiction.

It cannot be urged that there would be any need of this court if there was a remedy prescribed by statutes for all the cases that could be brought before this court. We do not believe the court should invoke the rule of equity and good conscience in a case where claimant had an adequate remedy at law and it would not seem consistent for this court to adopt any rule in conflict with the well established practice of courts of general jurisdiction in the State of Illinois. In such courts if a complainant slept on his legal rights no court of equity would take jurisdiction on the theory that the claim was just or equitable if the complainant failed to pursue his legal remedy in apt time. Therefore, can it be assumed that the legislature of this State had in mind at the time it created this court, a plan to open wide the doors to all litigants to choose between the courts already established by the Constitution and this court, or was it not the thought, back of the Act creating this court, to give claimants the right to recover legal claims or claims sustained by the rule of equity and good conscience, an opportunity to be heard who had no right either by the basic law of the State or through statute to pursue their claim for relief in any court of general jurisdiction? It is the opinion of this court that it should not invade the field of courts created by the Constitution of the State and we believe that it cannot be contended that the legislature intended to create this court to usurp the powers of, to contradict, or to compete with courts of general jurisdiction.

This court wishes to cite herein the following provisions of the statutes taken from the brief and argument of defendant which seems to support the contentions heretofore in this opinion stated:

Paragraph 172, Chap. 127, Smith-Hurd’s Statutes, 1923, (Section 28, of Act in Relation to payment of Public Money of the State into the State Treasury, approved June 9, 1911), the provision that requires the Secretary of State, among other officers, “to hold for thirty days all moneys received for or on behalf of the State under protest and on the expiration of such period, to deposit the same with the State Treasurer, unless the party making such payment shall within such period file a bill in Chancery and secure a temporary injunction restraining the making of such deposit, in which case such payment shall he held until the final order or decree of the Court.”

There is also another theory which this court considers proper to comment on in passing on the propositions involved in this case.

The office of the Secretary of State was created by the Constitution of the State. The Constitution and the Legislature placed large responsibilities upon the incumbent of this office. The rapid increase of the population of this State has increased many fold the duties of this officer. Therefore it would seem that this court should be reluctant to enter any order that might presume to review the acts or conduct of the man whom the people of the State of Illinois placed in this high position of prominence and responsibility in view of the fact that in cases of this character the legislature provided a method wherein a claimant would believe himself to be aggrieved by the acts of the Secretary of State that he could proceed as indicated in the statute above cited in courts of general jurisdiction making the Secretary of State a special defendant thereby giving this officer an opportunity of being heard directly and his acts reviewed by a court of general jurisdiction with such rights of appeal that may be provided by law. Therefore it appears to the court in fairness to all concerned that in all cases where the law of this State provides a remedy for a hearing in courts of general jurisdiction that claimant should avail himself of this method rather than come to this court.

Therefore, for the reasons aforesaid, this claim is disallowed.

On October 24, 1928, upon petition for rehearing the fol- . lowing- additional opinion was filed:

This court has heretofore held in this case which comes for consideration upon a petition for rehearing, that claimant had a remedy at law through the courts of general jurisdiction. This court is of the opinion after examination of the brief and argument of claimant on the question of rehearing, that claimant has an adequate remedy at law through courts of general jurisdiction.

The court is impressed in the consideration of this case with the elements in the case that would appeal to the rule of equity and good conscience, yet this court cannot be unmindful of the position heretofore held in this case in that there is a remedy at law to claimants in courts of general jurisdiction, that this court must follow the usual rule in denying relief on the question of equity and good conscience.

For the reason above stated the petition for rehearing is denied and dismissed.


author: Mr. Chief Justice Clarity

text:
    (No. 841
    National Aniline & Chemical Company, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 10, 1927.

      Rehearing denied October 24, 1928.

    Gardner & Carton, for claimant.
    Oscar E. Caklstrom, Attorney General; Edward C. Fitch, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

For the reasons set forth in the opinion filed in this court in the case of Moline Plow Company v. State of Illinois, Numbers 687 and 687-a, this claim is disallowed.

On October 24, 1928, upon petition for rehearing the following additional opinion was filed:

This court has heretofore held in this case which comes for consideration upon a petition for rehearing, that claimant had a remedy at law through the courts of general jurisdiction. This court is of the opinion after examination of the brief and argument of claimant on the question of rehearing that claimant has an adequate remedy at law through courts of general jurisdiction.

The court is impressed in the consideration of this case with the elements in the case that would appeal to the rule of equity and good conscience, yet this court cannot be unmindful of the position taken by the court in the Moline Plow Company case in that where there is a remedy at law to claimants in courts of general jurisdiction, that this court must follow the usual rule in denying relief on the question of equity and good conscience.

For the reason above stated the petition for rehearing is denied, and dismissed.


author: Mr. Jltstice Thomas

text:
    (No. 933
    William Kittle, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 10, 1927.

      Rehearing denied September 13, 1927.

    Edward L. Brown and Colfax T. Martin, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank B. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Jltstice Thomas

delivered the opinion of the court:

This claim is for damages to a Ford truck of claimant alleged to have been caused by a collision with a truck of the defendant. The declaration charges that on April 11, 1925, while claimant was driving his’ truck in a westerly direction along an alley in the city of Danville, Illinois, where said alley intersects Gilbert Street, the defendant, by Grant Spaulding, one of its servants, carelessly and negligently ran one of its trucks into and against the truck of claimant and thereby damaged the truck of claimant to the amount of $750.00

To this declaration the Attorney General has filed a general and special demurrer.

The weight of the evidence in this case shows Spaulding was driving south on Gilbert Street in the city of Danville at a rate of speed between 18 and 30 miles per hour; that just before he reached the alley- on the east between Seminary and Williams Street, claimant came out of the alley in a Ford truck going from 7 to 8 miles per hour; and that claimant failed to stop his truck before turning into Gilbert Street.

The rule is so well settled in this court that the State is not liable for the negligence of its agents — that the doctrine of respondeat superior does not apply to the State — that no citation of authorities is needed to support it. The record shows Spaulding was going south on Gilbert Street, and Kittle west on the alley. Kittle was therefore approaching* Gilbert Street from Spaulding’s left. This gave Spaulding the right of way, and it was the duty of Kittle to so operate his truck as not to interfere with Spaulding’s crossing the intersection. (Ch. 95a, Sec. 33, Cahill’s Revised Statutes, 1925).

The demurrer to the declaration is sustained and the case dismissed. •

On September 13, 1927, upon petition for rehearing the following additional opinion was filed:

Claimant has filed a petition for re-hearing in this cause in which he contends the court has misconstrued the evidence and misapplied the law.

One of the reasons urged for a re-hearing is that the court sustained the demurrer to the declaration after evidence was taken in the cause. Under the allegations of the declaration the State is not liable and we might well have sustained the demurrer without considering the evidence at all. After the demurrer was filed, however, both claimant and the State proceeded to take testimony without calling up the demurrer for ruling thereon by the court. In such case the court frequently examines the evidence to determine whether it shows the claimant has a meritorious cause. Such procedure cannot injure a claimant’s case as he thereby gets the benefit of his evidence. That procedure was followed in this case.

Since the filing of the petition for a re-hearing, we have again carefully read the record in this case and are fully satisfied that claimant is not entitled to any award.

The petition for re-hearing is therefore denied.


text:
    (No. 986
    William Graham, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 10, 1927.

      Rehearing denied April 25, 1929.

    Ellen Bourne, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank B. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of,the court:

This is a claim based on Case No. 987 and for the reasons announced in the latter case, this case is dismissed.

On April 25, 1929, upon petition for rehearing the follow-' ing additional opinion was filed:

This cause of action coming on to be heard in the above entitled claim and the court now being further advised in the premises finds no reason to change the previous opinion of this court in which said claims were denied.

Therefore the petition for rehearing and the proceedings thereon is hereby dismissed and the said claims are hereby disallowed.


text:
    (No. 987
    Albert Graham, by William Graham, His Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 10, 1927.

    Ellen M. Rotjriie, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank it. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears that claimant, a boy about 13 years of age in company with two companions of about the same age, on the afternoon of Sept. 28th, 1925, went on the State Fair Grounds at Springfield, climbing a gate to get in the premises, although it was shown that it was the custom to keep another gate open at another entrance. The object of the trip according to the statements of the three boys, was to find “feathers to make some Indian hats.” While going about the grounds for feathers they found several small cans containing liquid which they took to be coal oil. Further on they found a large can also containing liquid, which they thought was water and which they poured out, in order to pour the contents of the smaller cans into the larger can. They carried the larger can a short distance when the claimant dropped a lighted match in the can causing an explosion which severely injured claimant. The extent of the injuries need not be discussed here although appearing to be serious and lamentable, as the court is of the opinion that the only question here to be decided is one of law. It is not considered by the court that this is a case where the rule of equity and good conscience can be invoked.

It appears that claimant relied on “the doctrine of attractive nuisance.” This court is of the opinion that this rule cannot be invoked in this case. This opinion is supported by the cases cited by the Attorney General, namely: McDermott v. Burke, 256 Ill. 401, Anderson v. Karstens, 218 Ill. App. Page 285, as well as the well established rules of law of the State not being liable for the acts of its officers or agents, etc.

It is further considered by the court that to extend the liability of the State of Illinois to include this class of cases, would not be consistent with the act of the legislature in creating this court. The court recognizes that this boy is entitled to the deep sympathy of the public and that it is unfortunate that the unknown person or persons left this liquid on the Fair Grounds. The question of who was really to blame for the accident is not clear to the court. There is nothing in the record to indicate specific negligence of the State or any of its agents or employes.

Therefore it is ordered by this court that said case be dismissed for the reason assigned.


author: Mr. Justice Leech

text:
    (No. 1017
    North American Car Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 29, 1927.

      Rehearing denied February 13, 1929.

    Bent. F. Cassiday, for claimant.
    Oscar E. Cablstbom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

Claimant alleges, in its declaration filed April 27th, 1926, that it is a corporation organized and existing under the laws ' \ of the State of Delaware, and that it was authorized on June 10, 1922, to do business in the State of Illinois, and entitled to all the rights and privileges granted to foreign corporations for profit under the General Laws of the State of Illinois, having its principal business office for this State in the City of Chicago, with an authorized capital stock of $500,-000.00 and 20,000 shares of no par value, and paying $266.67 franchise tax under Section 107 of the General Corporation Act, and $62.92 initial fee based upon ..05034 of its authorized capital stock, or $215,850.00; that on June 18th, 1924, it duly amended its .charter, by which’amendment it changed its name from that of the North American Car Company to that of the North American Commerce Company; that on August 7th,, 1924, affidavit of withdrawal of the North American Commerce Company was filed with the Secretary of State of the State of Illinois; that at no time between June 10, 1922, and August 7, 1924, did it in any manner change, alter or amend the amount of authorized capital stock of corporation; that on March 1st, 1923, it duly executed and filed in the office of the Secretary of State its annual report required by law, and in its said report set forth that it was willing to be assessed and pay a franchise tax upon all of its authorized capital stock employed in the State of Illinois, as appears from its said report on file in the office of the Secretary of State of the State of Illinois; that on May 12th, 1923, Louis L. Bmmerson, Secretary of State for the State of Illinois, sent it a written notice, which written notice was returned to the Secretary of State’s office, accompanied by voucher check, dated July 31, 1923, in the amount of $2437.10; that in said written" notice, the claimant was notified to pay as and for its franchise tax for the year beginning July 1, 1923, $1250.00 based upon 100 per cent, or all of its authorized capitalization of $500,000.00 and 20,000 shares of no par value; and that since it had paid an initial fee on only $125,800 of its capitalization,, it owed the State an initial fee of $1187.10, making a total amount to be paid of $2437.10; that there was no authority at law for the Secretary of State to make such assessment, and that the assessment should only have been $200.00; that through mistake of fact that the claimant’s authorized capital stock of $500,000 and 20,000 shares no par value was all employed in the State of Illinois, assessed as an additional initial fee the sum of $1187.10 on $2,374,200 of its capital stock employed in this State, whereas only .04932 or $123,300 of its capital stock was employed in this state, on which an initial fee had already been paid, and no additional initial fee should have been assessed, and claimant seeks to recover $2237.10.

A demurrer filed by the Attorney General of the State of Illinois, to this declaration, is sustained as a matter of law.

Under the provisions of the General Corporation Act, providing for the filing of an annual report, and the provisions incident thereto, it is provided that a corporation, such as claimant, must file an annual report between February 1st and March 1st of each year on forms to be prescribed and furnished by the Secretary of State. It provides that the annual report must disclose such facts as are necessary to enable the Secretary of State to compute the franchise tax payable by said corporation. Section 111 vests the power in the Secretary of State to hear and determine objections to any assessment within the time specified in the Corporation Act, and after such a hearing to change or modify any assessment. Section 112 provides that- the Secretary of State shall mail between the first day of February and the 16th day of May, of each year, a notice in writing to each corporation against which a tax is assessed, notifying such corporation of the amount of the franchise tax assessed against it for the ensuing year, commencing on July 1st, “and that objections, if any, to such assessment will be heard by the officer making such assessment, upon request by corporation on a day not later than the 25th day of June.”

Section 132 provides, among other things, that the interrogatories propounded to the corporation shall be answered directly and positively and without equivocation or evasion. The Secretary of State complied with all of the provisions of the Corporation Act, and the Corporation, upon receipt of notice from the Secretary of State, paid the franchise tax without availing itself of the privilege provided by statute of appearing, with its objections, to the assessment, before the Secretary of State. The fact that claimant did fail to avail itself of the protection of the statute would indicate that it paid the tax voluntarily. It is evidence of the fact that claimant considered this amount as being due from it to the State of Illinois. The burden is placed upon the Corporation to make a proper annual report, and it is impossible for the Secretary of State to endeavor to check up and correct the annual reports of all corporations which are required to send and make reports to the State of Illinois, so that the failure of claimant to answer the interrogatories is no fault of the Secretary of State, but is rather due to claimant’s own negligence or failure to perform its duty under the General Corporation Act. The courts of this State have consistently followed the rule that money voluntarily paid, without duress or compulsion, cannot be recovered.

In view of the facts, above set forth, the claim is disallowed.

On February 13, 1929, upon petition for rehearing- the following additional opinion was filed:

This case comes before this court on a petition for a rehearing, claimant seeking to recover the sum of $2,237.10, which it is claimed was erroneously paid to the Secretary of State. After carefully reviewing the evidence and stipulation submitted and reviewing the arguments and briefs, we adhere to our former opinion, and disallow the claim.


author: Mr. Justice Thomas

text:
    (No. 1036
    Laura A. Mercer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 29, 1927.

      Rehearing denied September 13, 1927.

    C. W. Middleicaufp and Philip H. Ward, for claimant.
    Oscar E. Oarlstrom, Attorney General; Frank B. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant in this case is administratrix of the estate of Jack Mercer, deceased, who was killed in an automobile accident on a state paved road near Elizabeth, February 10, 1926. Briefly stated the facts shown by the evidence are as follows : About a week before his death deceased had been subpoenaed to be in attendance on the circuit court at Galena on February 10th, as a witness for the people in a murder case. On February 9th, deceased asked O. W. Kempster, a sergeant of the state highway police, how he was supposed to go to Galena for the trial. Kempster told him he did not know. Kempster then went to the depot and learned one could not get from Sterling to Galena by train before 3 o’clock in the afternoon of the following day. He then called up A. C. Van Gorder, a member of the state highway police who lived at Freeport and who was also a witness in the same case, and asked him if he would take Mercer with him from Freeport to Galena the next morning. Van Gorder replied that he would do so if the bus arrived at Freeport on time. Kempster then saw deceased again and told him he could not get to Galena by train in time for the trial and that if he would take the bus to Freeport and got there on time Van Gorder would take him in his car from there to Galena. This arrangement was satisfactory to deceased, and he went to Freeport the next morning on the bus. On arrival there he got in the rear seat of Van Gorder’s car, Van Gorder and Clifford Taylor being in the front seat. They started to Galena and when within about a mile of Elizabeth Van Gorder attempted to go round a car ahead of him being driven by Freeman Hancock. Hancock speeded up his car so Van Gorder could not or did not pass him. About this time an oil truck driven by C. F. Williams was seen coming from the opposite direction. Van Gorder then dropped back behind Hancock’s car. Hancock slowed down his car and Van Gorder applied his brakes to prevent hitting Hancock’s car. The pavement was slippery with snow and Van Gorder’s car skidded and collided with the truck. Van Gorder and Taylor were thrown out on the left side of the car and deceased was either thrown or jumped out on the right side, receiving injuries from which he shortly died.

The theory of claimant’s declaration is that deceased was killed through the carelessness and negligence of an agent an officer of the State while such officer, in the line of his duty, was conveying him to Galena to testify as a witness for the State in a criminal prosecution and that the State is therefore liable to respond in damages for his death. The Attorney General has filed a general and special demurrer to the declaration, and takes the position that no liability attaches to the State either under the allegations of the declaration or the evidence introduced in support of them. We think this position is sound. No government is liable for injuries caused by the negligence, misfeasance, laches or unauthorized exercise of power of its officers. (Hollenbeck v. Winnebago Co., 5 Ill. 148; Minear v. State Bd. of Agricul., 259 Ill. 549). It has been repeatedly held by this court, the courts of many states and the supreme court of the United States that a state is not liable for the torts of its officers.

But it is urged that the claim should be allowed as a matter of equity. There is nothing in the record of this case to call for equitable relief. The State, being sovereign, cannot be sued, either at law or in equity, without its consent. In order that there might be a forum in which claims and demands against the State could be adjudicated in accordance with the well known principles of law and equity the legislature created the court of claims, and gave it jurisdiction to hear and decide all claims and demands against the State, both legal and equitable. It was not the intention of the legislature in creating this court to give it unlimited power or jurisdiction to make awards to claimants, and it has no power to make an award unless the evidence shows the claimant has a just demand based on either legal or equitable principles. The facts in this case do not bring it within these rules. Van Gorder, with whom deceased was riding when killed, was only a witness going to attend the same trial as deceased. He was not on duty as a police officer at the time of the accident, and was only carrying deceased as a matter of accommodation to him. Deceased was not in the custody of Van Gorder or of any other officer of the State at the time he was killed, nor had any officer of the State compelled him to go to Galena with Van Gorder. He had been subpoenaed as a witness in a murder trial and it was his duty to obey that writ, just as Van Gorder was doing. Having no means of conveyance and being unable to reach Galena by train in time for the trial he voluntarily went to Freeport by bus and started from there with Van Gorder. By no stretch of the imagination can the facts in this case be held to create an equitable cause of action against the State.

The demurrer is sustained, the claim denied and cause dismissed.

On September 13, 1927, upon petition for rehearing the following additional opinion was filed:

Claimant has filed a petition for a re-hearing which is but a re-argument of the evidence taken in the cause. Counsel for claimant have evidently misconstrued the opinion, as they say it is based on the theory that the rule of respondeat superior is applicable to the State. The opinion expressly states the contrary to be the rule in the following language: “No government is liable for injuries caused by the negligence, misfeasance, laches or unauthorized exercise of power of its officers. It has been repeatedly held by this court, the courts of many states and the Supreme Court of the United States that a state is not liable for the torts of its officers.”

The case has been carefully considered and as the petition for a rehearing does not point out any facts or principles of law that were overlooked by the court, it is denied.


text:
    (No. 760
    Henry Paschen and Foreman Trust & Savings Bank, Administrator of the Estate of Frank Paschen, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1927.
    SONNENSCHEIN, BeRKSON, LaUTMANN & LEVINSON, for claimant.
    Oscar E. Carlstrom, Attorney General; S. S. DuHammel, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

In the spring of 1919 the Board of Supervisors of Lake County determined to improve one of the State aid roads of that county by surfacing it with a concrete pavement. After all the necessary preliminary steps were taken the contract for the work was let to Paschen Brothers, a firm of contractors composed of Henry and Frank Paschen. The contract was dated June 12, 1919, and provided that the work should be completed by December 14, 1919, but it was not finally finished until in 1921. By the terms of the contract the contractors were to furnish all the labor and material except the cement, which was to be furnished by the county. Frank Paschen died, and Foreman ¡Trust & Savings Bank was appointed administrator of his estate, and Henry Paschen and said administrator have jointly filed this .claim against the State for the sum of $96,272.64. Claimants charge that the delay in completing the work was caused by failure of the county and State to furnish cement to the contractors as it was needed, and that such delay necessitated paying extra prices for labor, materials, etc., aggregating the amount for which this claim is filed. Claimants do not contend that the specifications for the work were changed in any way, nor that any additional work or material was necessary to complete it, but their claim is based wholly upon the ground that the contractors were entitled to extra compensation because labor, materials, etc., advanced-in price in the years 1920 and 1921 over what they were in 1919; and these increased prices, together with other alleged expenses incident to the delay, constitute the extra compensation for which this claim is filed.

The Attorney General filed a general demurrer to the declaration and afterwards, under a stipulation, evidence was taken by both claimants and the State. The record is very voluminous but, as we view it, there are only two questions necessary for this court to decide.

Section 19 of Article 4 of the Constitution provides that “the General Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made,” etc. This provision of the Constitution is mandatory and binding upon the General Assembly and all courts of the State. No demand for extra compensation was made upon the State by the contractors until after the work which they were to do had been rendered, and under this provision of the Constitution this court has no power to grant them any extra compensation for such work; and should this court make an award allowing such extra compensation, the General Assembly would have no power, under this provision of the Constitution, to make an appropriation for the payment of it.

It has been repeatedly held by this court, and by the courts of other states, that the State is not responsible for the misfeasance, wrongs, negligence or omissions of duty of its officers, agents or servants, and that the State does not guarantee to any person the fidelity of the agents or officers whom it employs. This rule has been so frequently announced that the citation of authorities is not necessary, and under it claimants cannot maintain their action against the State, even if the State were a party to the contract and the delay had been caused by the failure of its agents and officers to furnish the cement as claimants contend.

But the record in this cause shows conclusively that the State was not a party to the contract. The contract itself shows that it was made with Lake County and that Lake County alone was bound by its terms. The road which was to be improved under the contract was not a State road but a State aid road, and was under the supervision of the authorities of Lake County. Under the provisions of the Road Law the county had the right to improve any State aid road within the county and pay the whole expense thereof out of any funds in the county treasury not required for other purposes. While it is true that the law provides that the State will repay the county one-half the cost of such improvement, that provision does not make the State a party to the contract for improving such road, nor give the contractor any claim against the State. Should the State fail to pay the county one-half of the cost of such improvement, the county might have a claim against the State which a Court of Claims would allow, because the statute expressly provides that where a county bears the whole expense of improving a State aid road the State will allot and pay to the county one-half of such expense. The contract between the county and the contractors expressly stated that the State assumed no liability except that of approving the plans and specifications and supervising the work, and the contract further expressly provided that failure to furnish the cement should not entitle the claimant to any extra compensation. These provisions were in the contract when it was executed, and the contractors were bound by them. The contract provided that the county would furnish the cement, and it was not material to the contractor where the county procured the cement which it was to furnish, whether from the State or a private individual. The fact that the county had an arrangement with the State whereby the State was to furnish the cement to the contractor for the county did not make the State a party to the contract any more than it would a private individual with whom such arrangement had been made by the county, and if claimants have any cause of action, it is against the county and not the State.

This court has no power to make- an award in favor of a claimant unless the facts show either a legal or equitable claim against the State. It was not the intention of the General Assembly in creating the Court of Claims to give the court discretion to make awards in favor of claimants regardless of whether or not they had legal or equitable claims against the State. There is nothing in the record in this case that would justify an award in favor of claimants, and the claim is therefore disallowed and the cause dismissed.


author: Per Curiam:

text:
    (No. 900
    C. P. Boyer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1927.

    C. P. Boyer, pro se.
    Oscar E. Carlstrom, Attorney General; Frank B. Eagle-ton, Assistant Attorney General, for respondent. •
   Per Curiam:

'This case coming on to be heard upon oral

motion of claimant that the above entitled cause be dismissed and it appearing that the cause should be dismissed,

It is therefore considered that said cause be, and the same is hereby dismissed.


text:
    Theodore Stoddard, 1066; Floyd Clauser, 1067; Walter Arnold, Administrator of the Estate of Vernon Arnold, Deceased, 1068, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1927.
    Hamlin & Ely, and Roland M. Wagner, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

The declarations in these cases were filed July 7,1926, and are all substantially alike. They allege the following; that the State has built and maintains a highway in Adams County near the town of Paloma; that about one mile from Paloma the State maintained a barricade across the highway in order to establish a detour across the Chicago, Burlington and Quincy railroad, and had full charge and control thereof and of the lights placed thereon July 27,1924; that the State negligently failed to place in a permanent position on the barricade a sufficient permanent light to warn persons traveling on the highway of the position of the barricade and negligently permitted the light thereon to be knocked down and remain out of order for two or three days, because of which condition persons traveling on the highway at night .were unable to see the barricade until coming directly on it; that the State negligently permitted gravel and loose sand to become scattered on the highway in front of the barricade and negligently suffered said condition to exist for several days although by the exercise of caution it could and ought to have known of the existence of said condition; that on the night of July 27, 1924, claimant (in No. 1068 claimant’s intestate) was riding in an automobile on the highway and exercising all due care and caution in his own behalf; that claimant was a stranger in the vicinity and not familiar with the condition of the highway and because of the negligence of the State in the particulars above mentioned and as a direct and proximate result of the negligence of the State claimant was unable to see the barricade until he was in two or three feet of the same and in stopping the automobile because of the presence of the barricade the automobile skidded in said sand and gravel and was thrown over an embankment at the side of the road maintained by the State and caused to be overturned, etc. In the Clauser case, it is alleged claimant is permanently injured and an award of $5000.00 is prayed for. In the Stoddard case certain injuries alleged to be permanent aré described, and he asks an award of $20,000.00. In the Arnold case it is alleged that claimant’s intestate, Vernon Arnold, died of wounds received in the accident, leaving a father, mother and sister, and an award of $10,000.00 is asked for.

On July 14,1926, the Attorney General filed a general and special demurrer to the declaration in each case. Afterward evidence was taken on behalf of claimants and the State, and by stipulation of all the parties the cases have been consolidated.

The theory of claimants is that the State having built the highway and assumed the burden of its maintenance is charged with the duty of using reasonable diligence to keep it in a safe condition for travel and is liable for all damages caused by failure to perform such duty. To adopt this theory is to place the State in the same position as a private corporation maintaining and operating a toll road for hire. The State is not required to build roads, neither is it required to maintain roads already built. It may assume those duties or it may delegate them to such local subdivisions of the State as road districts, towns and counties. Public roads are-built at public expense for the use of the public and are free to all who desire to use them. The State is but the whole body of people organized for governmental purposes, and in the construction and maintenance 'of public highways is only exercising governmental powers. Such powers can only be exercised by officials chosen in the manner provided by law. If such officials, in the exercise of the powers conferred upon them, are guilty of misfeasance or malfeasance or negligence and injury results to anyone thereby, the government — the State — is not liable for such injury; the official causing the injury may be but the State never is. This doctrine is so well settled that citation of authorities is unnecessary.

It is urged by claimants that even if the State is not liable for the negligence of its officials, it should be required to pay as an act of social justice and they cite paragraph 4 of Section 6 of the Act creating the Court of Claims in support of this contention. The language of paragraph 4 is as follows: “To hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contracto and ex delicto, which the State, as a sovereign commonwealth should, in equity and good conscience discharge and pay.” It is clear from this language that the Legislature intended that all claims allowed against the State should be based upon either a legal or equitable right. This question has been before the court a number of times. The Act of 1903 provided the court “shall hear such claims according to its rules and established practice, and determine the same according to the principles of equity and justice.” In Schmidt v. State 1 C. C. 76, it was urged the court had the power, under that clause, to allow a claim that was neither legal nor equitable, and the court said, page 80: “To this proposition we cannot assent. It is our understanding that in the use of the language ‘to determine the same according to the principles of equity and justice’ is meant and used with a legal signification and that this Commission has no power to make an award in any case unless the facts show a legal or equitable claim against the State. We do not believe it was the intention of the Legislature to leave it discretionary with the Commission to make an award in favor of the claimant regardless of the question as to whether or not he had a legal claim against the State. We are of the opinion further, that it would be an exceedingly dangerous precedent to hold that the Commission had any such discretion.” Paragraph 4 does not create any new or additional liabilities against the State. It was not the intention of the legislature in passing it to clothe this court with discretion to make awards in favor of claimants unless the facts show such awards are based on either legal or equitable demands. To hold the State liable in cases of the character of these claimants would open the field for a vast number of actions far beyond those the legislature intended in creating the Court of Claims. (Thompson v. State 4, C. C., 26; E. J. & E. R. R. Co. v. State, 4 C. C. 206.)

If all the facts charged in the declarations were sustained by the evidence, it follows from what we have said that no awards could be made in favor of claimants and the cases would have to be dismissed. But, aside from that, claimants have not made a case against the State under their theory of the law. We have read the evidence carefully and think it shows two facts that bar recovery under claimants’ theory: (1) it shows claimants were guilty of contributory negligence, and (2) it shows that the State officials had used reasonable care and diligence to maintain the highway in a reasonably safe condition for travel. If we are right in these conclusions, then of course it follows that claimants cannot recover.

The claims are therefore denied and the cases dismissed.


text:
    (No. 702
    Emmett Erwin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1927.

      Rehearing denied November 9, 1927.
    Robert E. Hickman, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This case comes before the court on declaration filed by Emmett Erwin, to recover damages for injuries which he alleged he sustained in the following* manner: — that in order to better fit himself as a miner, he applied to the Superintendent of a Mine Rescue Station at Benton, Illinois, conducted and maintained by the State of Illinois, for the purpose of providing prompt and efficient means of fighting mine fires and of saving lives and property jeopardized by fires, explosions and other accidents, in coal mines in Illinois, for training at said rescue station; that before beginning his work as a student in said first aid work in coal mining, he was required to enter a room in said Rescue Station filled with gas or sulphur fumes and to remain therein for such period of time as indicated by the Superintendent of said Rescue Station; that on December 13th, 1921, he was fitted with a helmet by said Superintendent, and placed in said sulphur filled room as part of his training; he alleges that the helmet which was placed over his head, eyes, nose and mouth to prevent inhaling gas or sulphur fumes with which said room was filled was leaky and defective and permitted said gas or sulphur fumes to penetrate and enter his mouth, nose, throat, and lungs, and he alleges that he has been permanently injured on account of such occurrence, and claims damages to the amount of $1750.00.

The demurrer filed by the Attorney General, is sustained as a matter of law.

Taking the entire record into consideration, there appears to be quite a marked conflict on the facts. It is true the testimony produced by claimant indicates some injury to him, but the testimony on behalf of the State leads to the conclusion that the injuries complained of could not have resulted from the causes alleged. The testimony of James Weir, Superintendent of the Mine Rescue Station at Benton, rebuts the contention of claimant, that the helmet furnished was leaking, or defective in any way. This same helmet had been used for a year prior to the time when claimant wore the helmet, and has been used since then, and he states positively that it has not been repaired, and that it never was defective.

We must draw the conclusion that the hemorrhage was the result of natural causes. There has been no showing of negligence made in this record and said claim is therefore rejected.

On November 9, 1927, upon petition for rehearing the following additional opinion was filed:

This case is brought to our attention on a petition for a rehearing, filed in this court on April 30th, 1927. Claimant seeks to recover damages for injuries which he sustained in an accident on December 13th, 1921, while taking an esamination and test for training in first aid work, at a Mine Rescue Station conducted by the State of Illinois, at Benton, Illinois. After a careful reconsideration of all the testimony introduced on behalf of claimant, as well as on behalf of the State of Illinois, we concur in the opinion formerly rendered in this case and deny an award to this claimant.


text:
    (No. 944
    Federal Ice Refrigerating Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1927.

    Henry J. & Charles Aaron, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This is a claim for a refund of portion of franchise taxes paid by claimant to the Secretary of State of the State of Illinois, under written protest in the years 1920, 1921, 1922 and 1923, which sums total $6702.26. The declaration filed alleges that claimant is a foreign corporation, organized and existing under the laws of the State of Delaware, engaged in the business of manufacturing artificial ice and furnishing icing to railroads and other industries and having an office at 76 West Monroe Street, Chicago, Illinois; that claimant, under authorization of the Secretary of ‘State of the State of Delaware, issued 50,000 no par shares and that each share of no par value stock so issued had a paid in value not exceeding $5.00; that for the privilege of exercising its franchise in the State of Illinois, from July 30, 1920, to June, 1924, claimant paid the Secretary of State the sum of $6702.26, as franchise taxes assessed against such no par value shares valued at $100.00 a- share, and that such payments were forwarded to the Secretary of State under written protest for the reason that these franchise taxes were assessed against no par shares on a $100.00 valuation, and not •on the actual paid in value of such shares and that claimant was forced to pay under duress, taxes assessed upon such valuation to the extent that such assessment disregarded the •actual paid in value of such shares.

The demurrer filed by the Attorney General of the State •of Illinois, is sustained, as a matter of law.

After a careful consideration of all testimony introduced, and analysis of the briefs submitted, we conclude that this is not a proper case for the exercise of our equitable jurisdiction; that where claimant has had its proper remedy and has been provided with ample protection of the law in the courts of this State, it must avail itself of these remedies and protections. An award is therefore denied.


author: Mr. Jtjstice'Leech

text:
    (No. 945
    Agar Packing & Provision Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1927.
    Henry J. & Charles Aaron, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Jtjstice'Leech

delivered the opinion of the court:

The declaration filed in this case by Agar Packing & Provision-Company, a Corporation on July 6th, 1925, alleges that claimant is a domestic corporation organized and existing under the laws of the State of Illinois, engaged in the business of buying, selling, slaughtering and otherwise dealing in cattle, calves, pigs, sheep, hogs, lambs and other live stock, and having offices at 4057 Union Avenne, Chicago, Illinois; that claimant seeks to recover $1500.01, together with interest thereon from date of payment being money paid by it to the Secretary of State, of the State of Illinois, under written protest in the year 1922, as a franchise tax; that pursuant to a certificate of issuance filed with the Secretary of State, claimant issued 25000 shares of no par value stock, and that each share of no par value stock so issued had a paid in value not exceeding $10.00; that for the privilege of exercising its franchise in the State of Illinois from March 1, 1922, to June 30,' 1923, claimant paid the Secretary of State the sum of $1666.67, as franchise taxes, assessed against such no par value shares valued at $100.00 a share; that such payment was forwarded to the Secretary of State under written protest, for the reason that these franchise taxes were assessed against the no par shares on a $100.00 valuation, and not on the actual paid in value of such shares and that claimant was forced to pay under duress taxes assessed upon such valuation to the extent that such assessment exceeded the paid in value of such shares and that such over assessment totals the sum of $1500.01, which claimant seeks to recover in this action, together with interest and reasonable costs and disbursements herein incurred.

The demurrer filed by the Attorney General of the State of Illinois, to the declaration, is sustained as a matter of law.

A tax paid with knowledge or means of knowledge of the facts under no legal duress or compulsion, is a voluntary payment and even though illegal cannot be recovered back. The evidence in this case is such that we cannot say there was any duress or compulsion exercised on the part of the Secretary of the State that would entitle claimant to an award. The failure of claimant to pursue the remedies provided by law and by statute is a further reason why the claim should be disallowed by this court, and an award is accordingly denied.