text:
    (Nos. 3353, 3354, 3355, 3356, 3357, 3358, 3359, consolidated
    Job McComb and James McComb, No. 3353, Albert Jacobs and Faye Jacobs, No. 3354, Ed. P. Smith, No. 3355, Oscar Lamore and Zephyr Lamore, No. 3356, Arthur Benoit, No. 3357, Alfred Giroux and Leonard Giroux, No. 3858, Henry P. Wright, E. Belle Wright, Edward Wright and Milton Wright, No. 3359, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 10, 1941.

    John H. Beckers, for claimants.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

• The above entitled cases are all claims for damages caused by the pollution of a stream known as Rock Creek, by the Manteno State Hospital; all grew out of the same state of facts, and therefore, upon motion of the several claimants have been consolidated for the purposes of the hearing and consideration thereof.

The Manteno State Hospital is a charitable institution operated and maintained by the State of Illinois through its Department of Public Welfare. It is located on 1,220 acres of land owned by the State, located in Sections 22, 23, 25, 26, 27 and 35 in Township 32 North Range 12 East of the Third Principal Meridian in Kankakee County.

The institutional buildings are located on Section 26, and the remainder of the land is devoted to agriculture, orchards, nursery, etc. The original buildings and improvements were constructed in 1930, and then consisted principally of the following: eight two-story ward buildings; one administration building; one sewage disposal plant; one power house; two employees’ dormitories; five doctors’ cottages; one Managing Officer’s residence; one farm house; one kitchen building; garages, etc.

In 1933 eight additional ward buildings, a dining room, and a hospital were erected.

In 1935 a kitchen building, a general stores building, and a laundry building were erected.

In 1936 and 1937 twelve ward buildings, one mechanical stores building, one building for tubercular patients, one diagnostic building, two employees’ buildings, one assembly hall, seven doctors’ cottages, one chief engineer’s residence, and two hydro-therapy buildings were erected.

The number of patients and employees ■ housed on the premises from 1935 to 1939 inclusive, were as follows: in 1935, 1,446; in 1936, 3,144; in 1937, 3,187; in 1938, 4,451; and in 1939, 6,093.

The sewage from the several buildings is carried through an 18-inch sanitary sewer which empties into Rock Creek approximately sixty or seventy feet east of the highway running north and south between Sections 22 and 23.

The property is also provided with a 48-inch sewer called a storm sewer, which empties into Rock Creek just west of the 18-inch sewer.

Rock Creek is a natural water course which traverses the northwest corner of Section 23 and continues in a southwesterly and westerly direction through the lands of the claimants, and finally empties into the Kankakee River about seven and one-half miles west and two miles south of Manteno; and the effluent from the sewage disposal plant and the storm sewer system of the institution empties into such creek. The creek is a winding and sluggish stream, twenty-five to thirty feet in width, with many holes in the bottom which catch and retain the sludge and solids from the institution. The fall is about ten feet in the first three and one-half miles, and an additional ten feet in the next mile.

The original sewage disposal plant constructed in 1930 as aforesaid consisted of a primary settling tank, six mechanical aerators; a secondary settling tank; a sludge digester and three sludge drying beds, which were able to take care of a population as follows: primary tank, 1,280; aerator tanks, 2,530; settling tank, 2,670; digester tank, 3,210; sludge beds, 3,760. From February, 1935 until July 20, 1937 the waste water from the institution laundry was discharged directly into the storm sewer system (and eventually into Rock Creek) without passing through the sewage disposal plant. Since July 20, 1937 the waste water from the laundry has been run through the sewage disposal plant, and after treatment therein, is discharged into Rock Creek along with other effluent from the plant, through the sanitary sewer.

The original plant was put into operation in 1931, and thereafter no provisions were made for any alterations therein or additions thereto until December 29, 1938, when a contract was let for the installation of a new primary settling tank, sewage lift station and mechanical bar screen.

The several complaints herein were filed February 3, 1939, and on December 14, 1939 a contract was let for certain alterations and additions to the sewage treatment plant. The alterations and improvements above mentioned had not been completed at the time the taking of testimony herein was concluded, but one of the witnesses for the respondent testified, over objection by claimants, that after the completion of such alterations and improvements the capacity of the sewage disposal plant would be sufficient to take care of a population of 10,000 people, and that with proper operation the effluent from the plant should not possess any offensive odor and should not render the stream unfit for cattle to drink or to stand in. The witness admitted that such results would depend upon the proper construction of the plant, and the proper operation thereof, and that in any event, even with the new alterations and improvements the stream would not be in its natural state.

Alfred A. Brensley, a sanitary engineer called by the claimants, stated that in his opinion if the plant were constructed according to the plans in evidence, it would not furnish sufficient treatment to insure the original uses which were afforded by the creek waters before the original plant was constructed; and that the effluent discharged from the plant would reduce the extent of the available uses of the creek as to the riparian owners for general farming purposes and dairying.

No attempt is made by the respondent to deny or excuse the conditions as they existed prior to the filing of the several complaints herein. The sewage disposal plant in use prior to the filing of such complaints was wholly inadequate to treat the sewage and effluent from the institution, and all of such sewage and effluent was and continued to be discharged into the waters of Bock Creek.

In short, the respondent created and thereafter maintained a public nuisance of an aggravated nature. The supply of water in Bock Creek was not only increased in volume but polluted as well.

After the alterations and additions hereinbefore referred to are completed, the effluent from the entire institution will continue to be emptied into Bock Creek, and the evidence of Dr. Hinton, the Managing Officer of the hospital, was to the effect that from 1934 to the time of the hearing, from 150 to 200 gallons of water per person per day were consumed at the hospital. All of such water was eventually emptied into Bock Creek by the respondent, so that in 1939 there was from 900,000 to 1,200,000 gallons of water per day emptied into Bock Creek through the sewers of the institution.

The claimants, Joe McComb and James McComb, do not own the land they farm, but are tenants in possession thereof. In their complaint herein such claimants seek an award for $1,405.00, for the following items of damages, to wit: decrease in milk production; the cost of extra feed for livestock; loss of livestock; and the cost of veterinary services.

The claimants, Albert Jacobs and Faye Jacobs, are the owners of the land involved in their claim, and the claimant, Ed P. Smith, is the tenant in possession of said land. In the original complaint filed by Albert Jacobs and Faye Jacobs, damages are claimed in the amount of $980.00 for the loss of rent, and for the cost of excavating and hauling away slime, sludge and sediment which had accumulated in the bottom of Bock Creek. By amendment thereafter made, such claimants added the item of depreciation in the fair cash market value of their property, for which they asked an additional award in the sum of $2,000.00.

The claimant, Ed P. Smith, in his complaint asks for damages in the sum of $915.00 for depreciation in the value of livestock, loss of livestock, decrease in milk production, cost of extra feed for livestock, and cost of veterinary services.

The claimants, Oscar LaMore and Zephyr LaMore, are the owners of the land involved in their claim, but Oscar La-more alone farms the land, and he is the sole owner of the livestock thereon. In their original complaint Oscar LaMore and Zephyr LaMore, claim damages in the sum of $2,000.00 for loss of rent, and for the cost of excavating and hauling away slime, sludge and sediment which had accumulated in the bottom of Bock Creek, and the claimant, Oscar LaMore, personally claims damages in the total amount of $2,795.00 for loss of livestock, loss of use of livestock, decrease in milk production, cost of extra feed for livestock, and cost of veterinary services. By amendment thereafter made to their complaint, said claimants added the item of depreciation in the fair cash market value of their property for1 which they asked additional damages in the sum of $7,200.00.

The claimant, Arthur Benoit, does not own the land he farms, but is a tenant in possession under Carl Becker, the owner thereof, and claims damages in the sum of $1,102.50 for decrease in milk production; cost of extra feed for livestock, and cost of veterinary services.

The claimant, Alfred Giroux, is the owner of .the land involved in Claim No. 3358, and the claimant, Leonard Giroux, is the tenant in possession thereof. In their original complaint the claimant, Alfred Giroux, claims damages in the sum of $1,325.00 for loss of rent and cost of excavating and hauling away slime, sludge and sediment which had accumulated in the bottom of Rock Creek, and the claimant, Leonard Giroux, claims damages in the sum of $1,392.50 for loss of livestock, depreciation in the value of other livestock, decrease in milk production, and cost of extra feed for livestock. By amendment thereafter made, the claimant, Alfred Giroux, added the item of depreciation in the fair cash market value of his property, for which he asked additional damages in the sum of $6,000.00.

The claimants, Henry P. Wright, E. Belle Wright, Edward Wright and Milton Wright, are the owners of and operate the land involved in their claim. In their original complaint they claim damages in the sum of $3,516.00 for loss of rent, cost of excavating and hauling away slime, sludge and sediment which had accumulated in the bottom of Rock Creek, decrease in milk production, and cost of extra feed for livestock. By amendment thereafter made, claimants added the item of depreciation in the fair cash market value of their property, for which they asked additional damages in the sum of $5,000.00.

The evidence produced on behalf of the several claimants shows that those portions of the farms in question traversed by the creek were devoted to pasture; that since the pollution of the stream commenced, such farm land has depreciated in value; that livestock standing in the creek or drinking the water therefrom became diseased; that some of the stock died and that some of it depreciated in value because of the sores which developed on the animals; that by reason of the polluted condition of the stream it became necessary to remove the livestock from the pasture along the creek during the summer months of each year when the condition of such creek was most objectionable, and that during these months, and due to the inability to use these pastures, the occupying claimants were compelled to use or obtain extra feed for the livestock; that due to their removal from the pasture and the diseased condition of the livestock, the milk production of the occupying claimants fell off, and that they therefore lost the sale of certain quantities of milk that ordinarily would have been available for such purposes; and that it was necessary, in some instances, to secure the services of veterinarios in efforts to relieve or cure the livestock.

The respondent contends:

1. That as a matter of law these claims present a situation in which the State is not liable to respond in damages for the reason that the State is not liable for' the negligent acts or omissions of its officers, agents or employees; that if the officers, agents or employees of the State by their acts or omissions have polluted Eock Creek and have created a continuing nuisance, the remedy of the plaintiff is by injunction to restrain the continuance thereof; that the State is not liable in tort for damages arising from the creation or continuance of such nuisance; that no award can be made on the claims predicated upon tort liability.

2. That where the injury complained of constitutes a public nuisance, the provisions of Section 13 of Article 2 of the Constitution which provides that private property .shall not be taken or damaged for public use without just compensation, has no application; that the Criminal Code makes the pollution of a stream a public nuisance, and that therefore the right to maintain and continue such public nuisance cannot be obtained by the payment of compensation or damages; that the constitutional provisions embrace only those cases in which the Act creating the damage is a lawful act and which by the payment of compensation, can therefore be lawfully maintained; that the aforementioned constitutional provision has no application to this case, and that the claimants cannot predicate their right of recovery, thereunder; that their remedy was to abate the nuisance in its inception.

3. That even if a liability exists under the constitutional provision, claimants who are tenants have not offered any evidence to establish a proper measure of damages; that the evidence shows that the tenants occupied the land in question under leases which were renewed from year to year; that no evidence as to depreciation of the value of their leasehold was presented and that in any event it would be competent only as to the lease which was in existence when the injury arose; that subsequent leases or renewals after the creek was polluted were made with a knowledge of that fact and its effect on the land in question, and such facts were taken into consideration in the execution of subsequent leases or renewals.

4. That upon the completion of the improvements now in progress or contemplated, the creek will no longer be polluted by the sewage from the hospital, and that therefore the pollution of a stream is not a permanent condition, and that the claimants who are the owners of land are not entitled to recover permanent damages therefor.

It is clear that the State in the construction, maintenance and operation of Manténo State Hospital is engaged in a governmental function; also that the State in the exercise of its governmental functions is not liable for the negligence or misconduct of its officers, servants and agents under the doctrine of respondeat superior, in the absence of a statute making it liable. Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange Park, 453 Ill. 234; LePitre vs. Chicago Park District, 374 Ill. 184; Finney vs. State, 8 C. C. R. 327; I. C. R. R. Co. vs. State, 10 C. C. R. 410; Bishop, et al. vs. State, 10 C. C. R. 664.

In this case, however, the claimants are not relying upon any negligent acts or conduct on the part of the officers, agents or employees of the respondent. It is not claimed that the sewage disposal plant in question was improperly constructed, but it is claimed that although the facilities for disposal of sewage were sufficient at the time the institution was erected, and continued to be sufficient for some time thereafter, yet, the institution grew so rapidly both as to the number of buildings and the number of people quartered therein, that it was but a short time until the facilities for the disposal of sewage were inadequate and insufficient, and the several complaints are based upon the action of the State in casting additional waters into the stream, and in polluting the same, to the damage of the claimants as hereinbefore set forth.

Section 13, Article 2 of the Constitution provides that “private property shall not be taken or damaged for public use without just compensation.” It seems elemental that the words “private property” are words of general application, and that they cannot be confined to any species of property, either real or personal. In the case of Metropolitan. City Railway Co. vs. Chicago City Railway Co., 87 Ill. 317, our Supreme Court, on page 324, said:

“Property, in its broadest and most comprehensive sense, includes all rights and interest, in' real and personal property, and also in easements. franchises, and incorporeal hereditaments. That which may be taken for public uses is not exclusively tangible property.”

So also, in the case of I. C. R. R. Co. vs. Commissioner of Highways, 161 Ill. 247, the Supreme Court, on page 250, said :

“ ‘Property,’ in the sense in which that word is thus used in the constitution, is that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or subjects, and generally to the exclusion of all others.”

In Volume 6, Words and Phrases, page 5693, the law is set forth as follows:

“Property is nomen generallissimum, and extends to every species of valuable right and interest, including real and personal property, easements, franchises, and other incorporeal hereditaments.”

In Volume 3, Words and Phrases, 2d series, page 1275, the author cites the case of I. C. R. Co. vs. State, ex rel, 94 Miss. 579, in support of the following proposition, to wit:

“The oterm ‘property,’ as used in Const. 1906, Art. 3, Sec. 17, providing that an individual’s property shall not be taken or damaged for public use, except on due compensation first made, includes every species of value, right or interest.”

We are of the opinion, therefore, that the constitutional provision protects the individual in the ownership of all of its property whether the same be real or personal.

One of the earliest cases in this State bearing upon the questions here involved was the case of Nevin vs. City of Peoria, 41 Ill. 502. In that case the City of Peoria in raising the grade of a street directed the flow of water from its natural channel to a new channel, and thereby the house and grounds of the plaintiff were flooded with mud and water and a stagnant pond was formed within a short distance from his house, rendering it unhealthy and ruining his business. The defendant contended, as in this case, that there was no liability on the part of the City of Peoria.

In disposing of such contention the court said, page 508:

“The city is the owner of the streets, and the legislature has given it power to grade them. But it has no more power over them than a private individual has over his own land, and it cannot, under the specious plea of public convenience, be permitted to exercise that dominion to the injury of another’s property in a mode that would render a private individual responsible in damages, without being responsible itself. Neither State nor municipal government can take private property for public use without due compensation, and this benign provision of our Cdnstitution is to be applied by the courts whenever the property of the citizen is invaded, and without reference to the degree.” Also, on page 515: “We are unable to see why the property of an individual should be sacrified for the public convenience without compensation. We do not think it sufficient to call it damnum absque injuria. We know our Constitution was designed to prevent these wrongs: We are of the opinion, that, for injuries done to the property of the appellant in the case before us, by turning a stream of mud and water upon his premises, or by creating in the immediate neighborhood of his dwelling an offensive and unwholesome pond, if the jury find these things to have been done, the city of Peoria must respond in damages.”

The case of Holm, vs. Cook Cournty, 213 Ill. App. 1, was a case very similar on the facts to the case at bar. In that case the Oak Forest Infirmary, a county institution which furnished a home and refuge for about 3,000 inmates and employees, conducted its sewage through the farm tiling of the plaintiff and across his premises, causing damage similar to that complained of in this case. In that case the county of Cook took the same position as is being taken by the Attorney General in this case, and in disposing of such contention the court, on page 4, said:

“It is insisted by plaintiff that the action here brought is one to recover compensation for the wrongful taking of and damage to his lands and tiling system for a public use without compensation. Defendant, on the other hand, argues that, being a municipality in the exercise of its governmental functions, an action in tort will not lie against it.
“So far as the form, is concerned, if an action does lie against Cook County for the injuries complained of, trespass on the case is the appropriate one. Bradbury vs. Vandalia Levee & Drainage Dist., 236 Ill. 36; Allen vs. City of Decatur, 23 Ill. 332.
“The paramount question here presented for determination is, whether any action will lie against Cook County under the facts hereinabove related.
“Section 13 of the Bill of Rights (Const. Ill. of 1870, Art. II) provides that ‘private property shall not be taken or damaged for public use without just compensation’; that ‘such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law.’ ”
“It will be seen, from an examination of the declaration, that when defendant constructed the said Oak Forest Infirmary, it contemplated thgt all sewerage was to be conducted from its lands into the Calumet Drainage District Ditch, by means of plaintiff’s said tiling system, which was in fact done. Such action was tantamount to an appropriation not only of plaintiff’s lands for this purpose, but also the tiling system which plaintiff had laid for purposes entirely foreign to the one to which defendant put it. While it is true, as argued by defendant, that the servient estate must yield to the dominant one in carrying off surface waters, etc., yet such right cannot be enlarged to permit the defendants herein to unlawfully appropriate plaintiff’s said tiling system for the purpose of conducting the entire sewerage of the institution in question through plaintiff’s lands. In our opinion, plaintiff’s declaration sets up a state of facts from which it appears that his said property has been both taken and damaged for public use without compensation.”

In the case of Highland vs. Auer, 235 Ill. App. 327, the plaintiff Auer sought an injunction to restrain the City of Highland from polluting certain waters whereby sewage was deposited upon the lands of said plaintiff. In considering the rights of the plaintiff under the Constitution, the court in that case said:

'‘Our Constitution guarantees to every citizen that his property shall not be taken or damaged for public use without just compensation. Art. 2, Sec. 13. It protects him against damages caused by a nuisance.”

The case of Cook vs. City of DuQuoin, 256 Ill. App. 452, is another case which, on the facts, is almost identical with the case at bar. In disposing of the question there involved, the court said (page 455):

“It is the right of every owner of land over which a stream of water _ flows, to have it flow in its natural state, and with its quality unaffected. It is a part of the freehold of which the owner cannot be disseized except by due process of law, and the pollution of a stream constitutes the taking of property, which may not be done without compensation.”

In considering the effect of the aforementioned constitutional provision, our Supreme Court in the case of Roe vs. County of Cook, 358 Ill. 568, said:

. “Section 13 of Article 2 of the Constitution, principally relied upon in support of the judgment, is as follows: ‘Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as. shall be prescribed by law,’ etc. It is contended by plaintiff in error that the Constitution does not point out a remedy and that no express remedy is afforded by statute. Prom this it is argued that the parties damaged are left to the common law for relief, and that no liability exists at common law against an involuntary municipal corporation (such as the County of Cook) to respond' in damages for a tort, in the absence of a statute creating such a liability. (Board of Trustees of Odell vs. Schroeder, 58 Ill. 353; County of Cook vs. City of Chicago, 311 id. 234.) On the other hand, the defendants in error argue that the constitutional provisions above quoted are self-executing, and that a county may not take or damage the property of an individual for public use without eminent domain proceedings and without compensation and then escape liability for its act by saying that it cannot be sued. We are impressed with the justice and soundness of the latter view. The constitutional right of all property owners to a compensation when their property has been damaged or taken for public use is one of the most salient provisions of our bill of rights.” * *
“When the Constitution forbids the taking or damaging of private property without just compensation and pointy out no remedy, and no statute-affords one, for the invasion of the right of property thus secured, the common law, which affords a remedy for every wrong, will furnish the appropriate action for the redress of such grievance.” * * *
“The constitutional provision itself, without remedial legislation, is basic law, which not only confers a right but pre-supposes a remedy. Standing alone, Section 13 is self-executing and forms the basis for recovery at common law by an action on the case.” * * *
“Counties may sue and be sued in Illinois, (Cahill’s Stat. 1933, Chap. 34, Secs. 22, 31) and while they may not be held liable for damages in tort actions, where the doctrine of respondeat superior must be invoked, they are nevertheless liable for the value of property appropriated to their own use and for damages done to abutting property by reason of public improvements made in pursuance of their corporate powers.” * * *
“It is now immaterial whether the declaration be considered as one in tort or in assumpsit, as the breach of duty relied upon is the same and it contains all the necessary averments of fact for an action in assumpsit.”

The ease of Barrington Hills Club vs. Barrington, 357 Ill. 11, was another case in which the facts were very similar to those in the case at bar. In that case the plaintiffs wer¡e riparian owners of lands who sought an injunction against the village of Barrington to prevent such village from discharging sewage and the efflux from its sewage treatment plant, into the creek above their premises. In that case the court said, page 18:

“The claim cannot be sustained that the Village of Barrington had an inherent right to use the creek as the only available natural watercourse to carry off its sewage and waste water.” * * *
Also, on page 19: “Here, in addition to the placing of an additional burden upon the servient estates of defendants in error, as lower riparian owners, through the drainage of water coming from the water system and deep wells supplying water to the village, another property right is invaded, viz., by pollution of the stream.”

The Supreme Court of the United States has held in numerous cases that a claim for compensation for property taken for public use by the Federal Government is a claim founded upon an implied contract. Phelps vs. U. S., 274 U. S. 341; North American Transfer Co. vs. U. S., 253 U. S. 330; Temple, 248 U. S. 121.

The cases cited would seem to be conclusive of the right of the several claimants to recover, under the provisions of the Constitution, such damages as they have sustained, limited, however, to the allegations of their several complaints, the testimony in the record, and the law governing the proper measure of damages in cases of this kind.

The respondent, however, contends that the conditions complained of constitute a public nuisance in violation of the provisions of Section 221 of the Criminal Code of this State which provides that it is a public nuisance “to corrupt or render unwholesome or impure the water in a stream, river, pond or lake, to the injury or prejudice of others”; that inasmuch as the same constitute a public nuisance the State cannot obtain the right to continue such nuisance by paying damages to the plaintiffs and that therefore the plaintiffs are not entitled to recover in this case. If such contention were sound, it would follow as a necessary consequence that if the State causes pure water to flow upon the lands of the claimants which such _lands would not ordinarily receive in the course of nature, and thereby adds to the burden upon such lands, the claimants would be entitled to maintain an action therefor, but if the waters so cast upon the lands of the claim-. ants are of such a nature that the stream is polluted thereby and a public nuisance created, the claimants would have no remedy therefor.

We are not impressed either with the soundness of this contention or the justice thereof; nor are we impressed by the further contention of the respondent that the claimants are limited in their remedy, to the abatement of the nuisance. Our courts in numerous cases have held that in cases of this character, a suit for damages and the abatement of the nuisance by injunction are concurrent remedies.

In the case of Barrington Hills Club vs. Barrington, ante (357 Ill. 11) our Supreme Court said:

"The law in Illinois is, and has long been, settled upon the controlling questions involved in this case. A private nuisance may' be enjoined by a suit in equity or the party suffering damage and injury may proceed at law, and the remedies are concurrent and not exclusive. (Springer vs. City of Chicago, 308 Ill. 356; Village of Dwight vs. Hayes, 150 id. 273; City of Kewanee vs. Otley 204 id. 402.)

On the question of damages, Lewis on Eminent Domain, Second Edition, Volume 2, page 1416, Section 653b, lays down the following rule:

“Where a suit is brought for damages to property by the construction, use or operation of a work for public use, the question arises whether all damages, past, present and prospective, must be recovered in a single suit, or whether the damages must be limited to those sustained prior to the commencement of the suit, leaving future damages to be redressed by future suits, as such damages occur. If there can be but one suit and one recovery it necessarily follows; first, that the measure of damages is the diminution in the value of the property by reason of the permanent continuance of the construction or use which causes the damage;” etc. * * * “On the other hand if there may be successive actions then, first, the measure of damages is the injury sustained up to the commencement of the suit;” etc. * * * “and successive actions may be brought 'as often as damages are sustained or injury done and a recovery had of all damages sustained subsequent to the prior suit.”

It is well settled in this State that where the injury in question is of a permanent character, all damages arising on account thereof, past, present and prospective, must be recovered in one proceeding; hut where the injury in question is not of a permanent character, but is continuing, damages may be recovered only up to the time of the commencement of the proceeding, and successive actions may be maintained from time to time as damages are inflicted. City of Centralia vs. Wright, 166 Ill. 561; Suehr vs. Chicago Sanitary District, 242 Ill. 496; Strange vs. C. C. C. & St. L. Ry. Co., 245 Ill. 246; Jones vs. Sanitary District of Chicago, 252 Ill. 591.

It therefore becomes necessary to determine whether the injury involved in this case is of a permanent or a continuing character.

In the case of Baker vs. Leka, 48 Ill. App. 353, the court, in considering the question as to whether a certain ditch constituted a permanent invasion of the plaintiff’s rights, said:

“This is not to be determined from a consideration alone of its enduring character, or that if not changed by the hand of man it would likely continue forever. To be permanent in a legal sense, a structure must, in addition to being permanent or enduring within itself, be such that its continuation is lawful; because if not lawful, it is subject to be removed or abated by a legal proceeding and therefore cannot be deemed permanent.” * * * “A nuisance which may be abated by law is not regarded as a permanent source of injury but as a continuing nuisance. Successive actions for damages occasioned by it may be -maintained from time to time as such damages are inflicted.” * * *

In the case of City of Kewanee vs. Otley, ante, the court, on page 412, said:

“The principle of law which contemplates that damages sustained for a permanent injury to land shall be recovered in one action is applicable only to those cases where the party or agent committing the injury acts within the authority of the law. In this case, when the sewage of the defendant city, or any part thereof, though combined with sewage or deleterious waters from other sources, was cast upon the lands of appellees or mingled with the waters of a stream running over the same, so that a nuisance was created as to appellees and they were injured thereby, such act of the defendant was unlawful and it could not be sanctified by time. Nor could it be said that such a nuisance was a permanent one, for it would be the duty of its authors to have it abated.”

The case of Jones vs. Sanitary District of Chicago, 252 Ill. 591, was a case iu which the plaintiff sought to recover damages which he claimed had been done to his lands during the period of five years prior to the commencement of his suit, as the result of the overflowing of such lands by the defendant. It appeared in that case that the damage to the plaintiff’s lands was not the result of the construction of the Drainage Canal, but that such damage resulted from the use made of such canal, and the court there held that where the-continuance and operation of a permanent structure are not necessarily injurious, but may or may not be so, that the injury is not considered a permanent injury, and only the damages sustained prior to the commencement of the suit may be compensated in that proceeding.

In Lewis on Eminent Domain, Volume 2, page 1422, the author says:

“In suits for the pollution of a stream with sewerage, it was held that the recovery should be limited to damages up to the commencement of the suit.”

We are of the opinion, that under the facts in this, case the nuisance in question cannot be considered a permanent nuisance within the meaning of those words as used in cases of this kind. The buildings of the respondent which constitute the Manteno State Hospital, although permanent structures, do not, of themselves, constitute the nuisance complained of. Such nuisance consists of the discharge of the waters and sewage from such institution upon the lands of the claimants. The discharge of such sewage upon the lands of the claimants constitutes a public nuisance in violation of the Criminal Code of this State and being unlawful, cannot ripen into or form the basis of a right to continue or- maintain such nuisance. Furthermore, the testimony offered on behalf of the respondent shows that a very substantial enlargement or addition to the sewage treatment plant is now under construction; and that upon the completion thereof the effluent from the Manteno State Hospital will be unobjectionable and will not constitute a public nuisance. Under the testimony in the record, we are of the opinion that the nuisance in question, being unlawful, cannot be considered as of a permanent character, but on the contrary, must be considered as a continuing nuisance.

There are some cases in this State in which the owners of land have treated a structure as a source of permanent injury and brought suit for and recovered both present and future damages, although. such structure was unlawful and , subject to abatement by legal action. This was upon the theory that where the structure is in its nature permanent, the one damaged thereby may elect to treat it as permanent in law, though he may abate it as a nuisance and may sue for and recover damages present and prospective. If he does so, he is to be regarded as having consented to its continuation and is estopped from the recovery of further damages. Baker vs. Leka, 48 Ill. App. 353; Strange vs. C. C. C. & St. L. Ry. Co., 245 Ill. 246; Dowd vs. Drainage District, 160 Ill. App. 476; Bernhardt vs. B. & O. Ry. Co., 165 Ill. App. 408.

Such cases, however, are limited to cases involving structures which are in their nature permanent and in which it is apparent that the injury will continue indefinitely. In this case, as previously stated, the source of injury was not the hospital buildings, which are permanent structures, but the depositing of the sewage therefrom on the lands of the claimants. Furthermore, it is apparent that the pollution complained of will not continue indefinitely, as the evidence shows that a substantial enlargement of the sewage treatment plant is now in course of construction. Consequently, the cases last cited can have no application to the claims now under consideration.

In the recovery of the damages sustained by them, the claimants are therefore confined to the damages which they have sustained up to the time of the commencement of the present proceeding, and no recovery can be had in this proceeding for any permanent injury to the real' estate, that is to say, the damage claimed for depreciation in the fair cash market value of the real estate is not a proper element of damage in this proceeding.

Some of the property owners claim as an element of damage the cost of removing the sediment from Bock Creek. Whether such cost is a proper element of damages it is not necessary to decide at this time, as the evidence offered is too indefinite, uncertain and speculative to form the basis of an award. The testimony shows that the creek is winding and of varying widths, and that there are holes in the bottom which are filled with such sediment, but there is no evidence to show the distance the creek traverses the several tracts, or the width of the creek on each of such tracts. There is some general testimony to the effect that the creek is from 25 to 30 feet in width, but there is nothing definite as to any particular piece of property, nor is there any definite testimony as to the thickness of the deposit of sediment on the several tracts, or the number or the size of the holes, in the bed of •the creek. Apparently the estimates of the owners with reference to the amount of such sediment and the cost of removal thereof were merely guesses, and not based upon any definite measurements or information either as to the amount of the sediment or the cost of removal.

There is some testimony to the effect that after the new addition to the sewage treatment plant is in operation, the effluent from the institution will be unobjectionable, and the flood waters will wash away all old sediments, and there is also testimony to the effect that the flood waters will have no effect upon the removal of such sediment. Even if such item were a proper element of damage, it would be necessary that the testimony disclose some definite basis upon which an award could be made, and in the present state of the record, we are of the opinion that no award can be made for such item.

The respondent also contends that the tenants who leased their property subsequent to the time Rock Creek was first polluted, are not entitled to recover any damages in this proceeding, for the reason that the nuisance was in existence at the time they went into possession of the property, and therefore they must be held to have leased the property subject to the conditions as they then existed.

This is the rule which applies in cases of a permanent injury, but such rule has no application in cases where the injury complained of is of a continuing rather than a permanent character. Baker vs. Leka, 48 Ill. App. 353, 360.

In the present claims the tenants had a right to assume that the nuisance, being unlawful, would be abated.

As to the damages claimed by the occupying claimants, the respondent contends that there is no competent evidence to support such claims. It goes without saying that in cases of this kind the exact amount of the damages sustained is difficult to ascertain, but that fact of itself does not deprive the claimants of their rights to recover therefor.

The case of Johnson vs. City of Galva, 316 Ill. 598, was a case very similar to the case at bar upon the facts. The plaintiff there sought to recover damages for the pollution of a natural watercourse which ran across his farm. The items of damages claimed by Mm were similar to those sought by the claimants herein. In fact, it seems probable that the claimants in tMs case in preparing their claims for damages followed the authority of the Johnson case.

In that case, in considering the question of damages, the court said, page 603:

"It is further contended by the plaintiff in error that the items for (1) the cost of hay and grain fed to the cows of the defendant in error while confined to the barn lot because of the pollution of the waters of the creek, (2) the alleged resulting loss of milk, and (3) the cost of labor and the value of the defendant in error’s time in driving his horses to and from water, were purely speculative and conjectural and for that reason are not proper elements of damage. If by reason of the wrongful acts of which the defendant in error complained he sustained these items of damage they were proper elements to be submitted to the jury. Damages must, however, be the proximate result of the wrong of which complaint is made. Where the right of recovery exists the defendant cannot escape liability because the damages are difficult of exact ascertainment. The nature of the inquiry in the instant case is such that it is difficult, if not impossible to ascertain with mathematical certainty the amount of the defendant in error’s damages, but this difficulty affords no answer to a cause of action which results from a breach of duty imposed by law. The unliquidated damages growing out of the commission of a tort are seldom susceptible of exact measurement. The rule is, that while the law will not permit witnesses to speculate or conjecture as to possible or probable damages, still the best evidence which the subject will admit is receivable, and this evidence is often nothing better than the opinions of persons well informed upon the subject under investigation.”

We now come to the consideration of the amount of damages to which the claimants are entitled under their several complaints, the proof in the record, and the law as hereinbefore set forth.

Claim No. 3353, Joe McComb and James McComb. These claimants are tenants on the farm described as the Southeast Quarter (SE%) and the South Half (S%) of the Northeast Quarter (NE.%) of Section Twenty-nine (29), owned by Mrs. Grace Cooley. Claimants have lived on this farm for five years and have fourteen head of cattle. During the years 1936, 1937 and 1938 these claimants had to take their livestock out of the pasture during the months of June, July and August of each year on account of the pollution of Bock Creek, and had to buy additional feed for them. As the result of such pollution and the dry feeding of the livestock on account thereof, claimants’ milk production was reduced two hundred (200) gallons per year. The evidence shows that fifteen cents (15c) per gallon was a fair price for such milk, and that the cost to these claimants of such dry feeding was fifteen cents (15c) per day per animal. The evidence also shows that these claimants lost one horse and two cows during the month of August, 1939, and that at that time they paid Thirty Dollars ($30.00) in veterinary fees. The complaint in this case was filed February 3,1939 and consequently under the law as hereinbefore set forth, claimants are not entitled to recover anything in this proceeding for the. horse and the cows which died, nor for the money paid to the veterinary, for the reason that all of such matters occurred subsequent to the filing of the complaint herein. The damages to which the claimants are entitled in this proceeding must be confined to the damages which accrued prior to the filing of the complaint. These claimants are therefore entitled to an award for the following items of damage, to wit: reduction in milk gallonage, 200 gallons a year for the years 1936, 1937 and 1938, at 15c per gallon, $90.00; extra feed for fourteen head of cattle for seventy-five days a year in each of said three years, at 15c per day, $472.50; — total, $562.50.

Claim No. 3354, Alfred Jacobs and Faye Jacobs. These claimants are the owners of Lots 1 and 3 of Tyson’s Subdivision in the East Half (E%) of Section Twenty-two (22). This land adjoins the land owned by Oscar LaMore and Zephyr LaMore. Among other items of damage, claimants sought to recover for- the permanent injury to their lands, but in accordance with the views hereinbefore expressed, they cannot recover such damages in this proceeding. Claimants ’ entire tract consists of approximately eighty-four acres, of which ten acres is leased to the claimant, Ed P. Smith. The testimony in the record shows that this land was rented to Ed P. Smith during the years 1937 and 1938 at a reduction of Sixty Dollars ($60.00) per annum on account of the pollution of the creek. Claimants are therefore entitled to recover this item of damages in the amount of One Hundred Twenty Dollars ($120.00).

Case No. 3355, Ed P. Smith. The testimony in the record confines the loss sustained by Mr. Smith to the year 1937 and to the months of June, July and August of that year. Such testimony warrants an award in favor of Mr. Smith for the following items of damages, to wit: loss on the sale of six head of cattle which ordinarily would have sold for $600.00, but which were sold for $190.00, on account of their condition, making a loss of $410.00; money expended for medicine for such livestock, $40.00; extra feed for ten cattle for two months at twenty cents per day, $120.00; reduction in milk gallonage, thirty1 days, eight gallons per day at fifteen cents per gallon, $36.00; — making a total of $606.00. From this amount there must be deducted the sum of $120.00, being the reduction in rent allowed to Smith by his landlord on account of the pollution of the creek.

Case No. 3356, Oscar LaMore and Zephyr LaMore. These claimants are the owners of the Northeast Quarter (NE1/^) and the East Half (E%) of the Southeast Quarter (SE%) of Section Twenty-two (22). This property lies immediately west of the lands occupied by the Manteno State Hospital, and is approximately eighty (80) feet distant from the outlet of the sewers in question. Evidence was offered to show the depreciation in the fair cash market value of this property as the result of the pollution of Bock Creek, but as previously stated, such depreciation does not constitute a proper element of damage in this proceeding. The testimony in the record, however, does warrant an award in favor of the claimant, Oscar LaMore, who operated the farm, for the following elements of damage, to wit: reduction in milk gallonage, 500 gallons a year for each of the years 1935, 1937 and 1938, at fifteen cents per gallon, $225.00; extra feed for twenty-three head of cattle for ninety days in each of the years 1935, 1936, 1937 and 1938, at twenty cents per day, $1,656.00; — making a total of $1,881.00.

There was some testimony to the effect that the claimant, Oscar LaMore, paid $39.00 for veterinary services; that one cow and one colt of said claimant died, and that the mother of such colt became sick and claimant lost the use of such mare. However, neither the testimony of the veterinary nor of the claimant himself shows that the sickness or death of any of such animals resulted approximately from the pollution of Bock Creek, and consequently no allowance can be made for any of such items.

Case No. 3357, Alfred Benoit. This claimant is a tenant in possession of the Southwest Quarter (SW14) of Section Twenty-two (22), except the North 30.39 acres thereof, which farm is owned by Cark Becker and lies west of the LaMore property. The testimony in the record shows that the claimant is entitled to an award for the following items of damage, to wit: for reduction of milk gallonage, 250 gallons a year for the years 1936, 1937 and 1938, at fifteen cents per gallon,' $112.50; extra feed for ten cows for ninety days in each of the years 1935, 1936 and 1937, at twenty cents per day, $540.00; total, $652.50.

Case No. 3358, Alfred Giroux and Leonard Giroux. The claimant, Alfred Giroux, is the owner of the East Half (E%) of Section Twenty-eight (28) lying north of the Illinois Central Railroad, and Lots Six (6) to Ten (10), both inclusive, in Hilaire Giroux’s Subdivision of the West Half (W%) of Section Twenty-eight (28), containing approximately 215 acres; all of which is farmed by the claimant, Leonard Giroux. There is testimony in the record which shows a depreciation in the fair cash market value of this property as the result of the pollution of Rock Creek, but as previously stated, such testimony is not competent in this proceeding. The testimony shows that the claimant, Leonard Giroux, is a tenant on a cash rent basis and pays a rent of $5.00 per acre for the entire farm. Alfred Giroux testified that if it were not for the present condition of the creek, the farm should rent for $8.50 per acre, but on account of the creek he rents it to his son for $5.00 per acre. However, other testimony in the record shows that Leonard Giroux has rented the property since 1934 for $5.00 per acre. No loss on account of the pollution of the creek is claimed prior to 1936, and under the evidence we fail to see that the claimant, Alfred Giroux, up to the time of the commencement of this proceeding, has suffered any loss of rent, or any other damage for which he is entitled to an award in this proceeding. From the evidence in the record it appears that the claimant, Leonard Giroux, is entitled to an award for the following items, to wit: loss of $80.00 on the sale of two cattle which ordinarily would be worth $90.00 each, one of which was sold for $55.00 and the other for $45.00; reduction of milk gallonage, 250 gallons a year for the years 1936, 1937 and 1938 at fifteen® cents per gallon, $112.50; extra feed for ten cows for ninety days in each year during the years 1936, 1937 and 1938 at twenty cents per cow, $540.00; — total, $732.50.

There was also some testimony to the effect thát one of claimants-’ cows died and two others became sick, but there isf nothing in the record to show that the death of the one cow or the sickness of the others was the proximate result of the condition of the stream in question, and no allowance can be made for either of such items.

Claim No. 3359. The claimants, Henry P. Wright", E. Belle Wright, Edward Wright, and Milton Wright, are the owners and tenants in common of 134 acres in the Southeast Quarter (SE14) (west of the railroad) of Section Twenty-one (21), and 44 acres in the Northwest Quarter (NW%) of the Northeast Quarter (NE%) of Section Twenty-eight (28), which farm is operated by them as partners. This land is approximately one and one-half miles west of the Manteno State Hospital and is traversed by Bock Creek for a distance of a little over one-half mile. There is testimony in the record as to the depreciation in the value of this farm, but as previously stated, such item of damages cannot be considered in this proceeding. The evidence shows, however, that the claimants have sustained damages and are entitled to an award for the following items, to wit: reduction in milk gallonage of 600 gallons a year during the years 1936 and 1937, at fifteen cents per gallon, $180.00; extra feed for cattle during the years 1936 and 1937, twenty-one cows for ninety days in each year, at twenty cents per day, $756.00; — ■ total, $93'6.00.

An award is therefore entered in favor of the several claimants as follows:

Claim No. 3353, Joe McComb and James McComb, Five Hundred Sixty-two Dollars and Fifty Cents ($562.50).

Claim No. 3354, Alfred Jacobs and Faye Jacobs, One Hundred Twenty Dollars ($120.00).

Claim No. 3355, Ed P. Smith, Four Hundred Eighty Six Dollars ($486.00).

Claim No. 3356, Oscar LaMore, Eighteen Hundred Eighty-one Dollars ($1,881.00).

Claim No. 3357, Alfred Benoit, Six Hundred Fifty-two Dollars and Fifty Cents ($652.50).

Claim No. 3358, Leonard Giroux, Seven Hundred Thirty-two Dollars and Fifty Cents ($732.50).

Claim No. 3359, Henry P. Wright, E. Belle Wright, Edward Wright, and Milton Wright, Nine Hundred Thirty-six Dollars ($936.00).


source: Caselaw Access Project

author: Mr. Justice Yantis

license: Public Domain

text:
    (No. 3603
    H. N. Shonkwiler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 10, 1941.

    Claimant, pro se.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant, H. N. Shonkwiler, operates a news distributing agency in the City of Springfield, Illinois. On April 21, 1941 he filed his claim in this court asking payment of $27.00 for the delivery of newspapers to the Department of Registration and Education from January 1st, 1939 to July 1, ¡1939;. the particular items being Chicago Tribune, $9.00; St. Louis-Globe, $9.00; and the St. Louis Post, $9.00 — total $27.00.

Claimant represents that the bill was not presented for payment due to' claimant’s illness. A report has been filed by the Department of Registration and Education which recites that the papers in question were ordered and were received by the Department in regular course of supplies; that, a Voucher for a Warrant covering payment was not issued prior to September 30, 1939, when the appropriation from which the item could have been paid, had lapsed; that if a. statement had been received in apt time, warrant for payment would have issued in due course; that the price charged is the-usual'and customary price; that at the time of delivery thereof there were sufficient funds in the appropriation from which such bill might have been paid, to have paid same; and that sufficient funds remained in the appropriation at the time of the lapsing thereof, for such payment. The report further states that the newspapers were supplied to the Department for its use in checking unlawful advertisements and other-matters pertaining to the work of such Department. The claim comes before the court upon stipulation of the parties-waiving Brief and Argument.

Where the facts are undisputed that the State has received supplies ordered by it in accordance with due authority, and, has received such supplies and used same, and that the bill therefor was not paid before the lapse of the appropriation out of which it could have been paid, an award for the amount will be made. (See Shell Petroleum Co. vs. State, 7. C. C. R. 224 and other cases).

An award is therefore allowed in favor of claimant in theh sum of $27.00.


author: Mr. Justice Linscott

text:
    (No. 3568
    James Strong, a Minor, by Kenneth B. Strong, His Father and Next Friend, and Kenneth B. Strong, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 10, 1941.

    Hall & Hulse, for claimants.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This complaint, consisting of two counts, alleges that ■James Strong, a minor, by Kenneth B. Strong, his father, and next friend, and Kenneth B. Strong, are claimants; that on the 21st day of December, 1938, James Strong, being then of the age of ten years, was enrolled in and attended Lincoln Grade School in the Village of Mundelein, County of Lake, and State of Illinois, a school being a free a public grade school conducted under the laws of the State of Illinois and located in School District No. 75 in the Village of Mundelein, ■and governed and supervised by the Board of Education of said School District No. 75.

That on that date and prior thereto there was situated upon the premises of the said school, for the use and recreation of the pupils attending the school, a devise or appliance commonly known as a slide, and James Strong attended the school, and during recess on the afternoon of .December 21, 1938, was using the slide. It is also charged that it was the duty of the Board of Education to use all due care, caution and diligence in the maintenance, control, management and operation of the slide so that it would be in a safe and proper condition, and free from any defects, having due and proper regard for the rights and safety of all persons lawfully and rightfully thereupon, and particularly the pupils of the school, so as to avoid or prevent any injury to any such person or persons, but notwithstanding this fact, and disregarding its duty in this behalf, the respondent, meaning the State of Illinois, carelessly and negligently and improperly failed to keep, and maintain the slide in a safe and proper condition, and permitted it to become defective and in a dangerous and unsafe condition, and that by means of the premises and the negligence of the respondent, aforesaid, and as the direct and proximate result thereof, the said James Strong, while using this slide fell to the ground below with great force and violence," and was greatly hurt and bruised; and the usual averments contained in a common law complaint concerning his injuries are made therein.

The second count is largely repetition of the first count, and in addition thereto alleges that as a direct and proximate result, and in consequence of the fall, the claimant James Strong became inflicted with and is still suffering from an ailment known as Osteomyelitis.

The complaint is sworn to and a Bill of Particulars is filed showing hospital bills, nurses bills, medical bills, totaling $3939.16, and alleging that there are other and continuing expenses, and damage is asked sufficient to be an adequate allowance and compensation, so as to pay all bills and for such other and further relief as to the court should seem meet.

The Attorney General has made a motion to dismiss on the grounds that complaint does not set forth a claim which the State of Illinois, as a sovereign commonwealth, should discharge and pay.

The claimants ’ claim is predicated on alleged liability of respondent while engaged in a governmental function because of the negligence and wrongful acts of its officers, agents or employees.

In the case of Crabtree vs. State, 7 C. C. R. 207, this court held that the Court of Claims has jurisdiction to recommend an award only where tbe State would be liable in law or in equity in a court of general jurisdiction if it were suable, and we have many times held that in the exercise of its governmental function the State is not liable for the negligence of its servants or agents in the absence of a statute making it so liable.

We have also held that the doctrine of respondeat superior does not apply to the State of Illinois.

In the case of Gebhardt vs. Village of LaGrange Park, 354 Ill. page 234, the Supreme Court of this State held that the principles on which freedom for liability for damages occasioned by servants of a municipality in performing governmental functions is based rests on the fact that the duty of the municipality is owed to the public.

The complaint in this case, however, does not charge the State of Illinois as a matter of law of having any control over the playgrounds of the school. In the Gebhardt case last above referred to, it was also held that in the absence of a statute imposing such liability a city or village maintaining a swimming pool for the public benefit under the Statute is not pecuniarily liable for the negligence of its officers or servants in the discharge of their duties relating to that particular function as the municipality in such case is engaged in a governmental and not proprietary function, and the fact that a fee! is charged for the use of the pool does not, destroy its character as a public place for recreation and health.

Other Supreme Court cases sustaining this doctrine are:

Hollenbeck vs. County of Winnebago 95 Ill. 148;
City of Chicago vs. Williams 182 Ill. 135;
Minear vs. State Board of Agriculture 259 Ill. 549.

Therefore the motion of the Attorney General will be sustained and an award denied.


author: Mb. Justice Yantis

text:
    (No. 3229
    Frank Weiss and Emma Weiss, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1941.

      Rehearing denied June 10, 1941.

    Frank E. Lickhalter and H. Grady Vien, for claimants.

      Otto Kebnbb and Geobge F. Babbett, Attorneys General ;■ Glenn A. Tbevob, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

The original complaint was filed in this cause March 16, 1938. An amended complaint was thereafter filed on January 9, 1940. Such amended complaint having been filed because of an amendement to the Statutes of Illinois making procedural changes for. the handling of claims of this nature. Due to such change in legislation and the decision of the Supreme Court of Illinois thereafter rendered, holding such legislation unconstitutional, certain delays have occurred in disposing of this claim. In the Bill of Particulars attached to the original claim, claimants ask damages as follows:

To damage to 'walls, ceilings, and buildings, caused by driving of piles and other construction work............................. $ 3,000.00
To trespass on property................«........................ 2,000.00
To depreciation in value of property............................ 65,000.00
To loss due to liquidation of stock in trade, and sale of fixtures... 17,000.00
To loss of business..................-........................... 10,000.00
Total ...................................................... $97,000.00

The property involved herein is owned by Frank Weiss and Emma Weiss as joint tenants and same is unencumbered according to the record herein submitted.

The property is located on the south side of St. Clair Avenue immediately adjoining the Pennsylvania railway tracks in the city of East St. Louis, Illinois and the claim for damages grows out of the purported damage to the property resulting from the construction of a subway under the Pennsylvania railroad tracks, the depression of St. Clair Avenue immediately in front of claimants ’ property, and the erection of a balustrade at the top of such subway, whereby ingress and egress to claimants’ property was affected. The major facts involved herein and the law applicable thereto are the same as the facts and legal questions arising in the case of Aggie Nauyoks vs. State of Illinois, Court of Claims No. 3504, and 18 other consolidated cases decided this date by this court. To avoid repetition of those matters as affecting this claim, a reference to the opinion this day rendered in such other causes is hereby made and we confine the comments herein to matters which pertain only to this particular property. The property of these claimants is improved with a two story brick building, having a frontage of 63 feet on the south side of St. Clair Avenue and a width of 90 feet at the rear of the premises, with a depth of 123 feet. The second floor of such building does not extend to the extreme rear of the first floor. The latter consists of one large store room and the upper floor consists of two apartments, one of which was occupied by claimants for dwelling purposes and the other being rented to another party. The claimant Frank Weiss was operating a general clothing or mercantile business in the first floor store room when the construction of the subways was begun, and had operated such a store on these premises for some 18 years. Claimant bought the property about November 19,1928, paying $25,000.00 for same and thereafter expended approximately $7,500.00 in improvements. In 1937 one apartment was renting for $40.00 per month and a garage in the rear was rented for $5.00 per month. Claimant testified that after the construction of the improvement he rented his upstairs apartment for $50.00 per month and the garage for $10.00 per month. The store room has remained unrented since the subway work and the building shows a marked state of deterioration. On May 20, 1937 claimant sold his mercantile stock to a Mr. Hirsch for $5,700.00 and testified that an invoice of such merchandise at the time of the sale showed a value of $11,927.60; further that Hirsch thereafter held a sale in the course of which he made better than $5,000.00 profit from such merchandise. Claimant further testified (Tr. P. 22) that he acted as manager and clerk for Mr. Hirsch in conducting the sale of such mercantile stock following the purchase by Hirsch from him of same. The record is somewhat confusing as to just what the relationship between Mr. Weiss and Mr. Hirsch was, as the latter testified (Tr. P. 53) that ‘ ‘ after he bought the stock he had an opportunity to sell it in bulk but that Mr. Weiss would not let him sell.” The latter’s testimony shows an invoice of fixtures on May 15, 1937 at a valuation of $4,100.00 and that in disposing of same he took an estimated loss of $3,162.00. These fixtures were mostly second hand cabinets and shelving that he had bought from a St. Louis Department store and had had rebuilt to fit his own store room. The record does not show to what extent they had been attached to the building or what portion might be treated as personal property, but counsel for claimant has advanced the view that all of such fixtures were so placed as to be considered personal property. If the fixtures are treated as personal property, the court is of the opinion that same could have been salvaged, sold or removed without material damage, and in the absence of sufficient testimony whereby to determine what portion of the fixtures were in fact personal property, no award for damages thereto will be made, but same will be treated as forming a part of the value of-the premises as a whole.

Claimants contend that the damages to their property, as outlined in their Bill of Particulars was caused by the interference with ingress and egress- to the premises, injuries to the building by reason of cracks that resulted from pile driving and construction work on the railroad grant and subway, sagging of doors and frames, the raising of the railroad tracks whereby trains now pass on a level with apartment windows necessitating the drawing of blinds for privacy and a general trespass on property. Their contention as to the last item was apparently abandoned in the course of the hearings as no reference is made thereto except in Bill of Particulars.

As above suggested, this court has today considered the several questions of law relating to the various phases of this claim, including loss of business, loss due. to liquidation of stock, depreciation in value and inconvenience during the period of construction. We desire to call attention, however, in addition to the matters therein stated to the fact that the record in the present case discloses that as to the claim for loss of value on merchandise, that the testimony shows that the mercantile stock was invoiced at $11,927.60 just prior to the construction of the subways and that if same was sold for $5,700.00 to Hirsch and the latter thereupon continued the sale with Weiss as his manager and received a- profit in excess of $5,000.00 on such mercantile stock that no apparent loss in value of such mercantile stock is shown whereby to justify an award.

The damage to walls, ceilings, etc., is regarded by the court as an element in determining the total damage to the property. The rule being that the measure of damage in a case of this kind is the difference between the fair cash market value of the property prior to the construction of the improvement and unaffected thereby, and the value of the property after the improvement as affected by same.

There is a wide variance of opinion between the several witnesses as to the value of these premises at the stated periods and the resultant damage. The several witnesses testified as follows:

As of As of
For the Claimants May 15,1937 Dec. 15,1938 Damages
Clarence G-. Rogers..................... $47,000.00 $5,000.00 $42,000.00
D. Leroy Morgan....................... 38,878.00 7,000.00 31,878.00
R. W. Sikking.......................... 30,000.00 5,000.00 25,000.00
Philip H. Cohn......................... 50,000.00 6,000.00 44,000.00

It will be noted that one of these witnesses was of the opinion that this property doubled in value after it was 35 to 40 years old, claimant having paid $25,000.00 for it originally.

For the Respondent
M. L. Harris............................ 15,000.00 7,500.00 7,500.00
F. P. Beckwith......................... 13,835.00 7,990.00 5,845.00

This property is located directly north of the Anna Zelvis property referred to in the consolidated cases above mentioned. The 20 foot service drive extends from the end of the subway 203 feet distant to the north line of claimants ’ property, and while ingress and egress is not entirely shut off from said premises, the building is seriously affected by the subway construction and is no longer available to the same extent for the conduct of a mercantile business that it was prior to the subway work.

From a consideration of all the testimony, the inspection made of the premises and a comparison of the property and its location and its value with surrounding properties, the court finds from such record that the property of claimant has been damaged by reason of the construction of such subway to the amount of Twelve Thousand Five Hundred ($12,500.00) Dollars.

Ail award is therefore recommended in favor of claimants, Frank Weiss and Emma Weiss in the sum of Twelve Thousand Five Hundred ($12,500.00) Dollars.


text:
    (No. 3433
    Baum Packing Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 23, 1941.

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

delivered the opinion of the court:

Claimant avers that it is a corporation organized under the laws of the State of Illinois, and for more than five years last past has been engaged in the manufacture and sale of meat products in Danville and vicinity; that it has an authorized capital stock of $60,000.00; that on May 15,1937, the corporation received a notice from Edward J. Hughes, Secretary of State, requesting payment of $60.00 franchise tax, copy of which notice is attached and marked Exhibit “A,” and pursuant to the notice the corporation sent its check payable to the Secretary of State in the sum of $60.00. Thereafter, on May 16, 1938, the corporation received notice from the Secretary of State that there was due the State of Illinois the sum of $60.00 franchise tax, and a copy of that notice was attached, and that same was duly paid by claimant. That in each of the notices it was stated that the capital stock of this corporation was $120,000.00, when in truth and in fact the capital stock of the corporation was only $60,000.00, and that the corporation relying upon the amounts' stated in the secretary’s notice paid a tax on the amount of capital stock stated in said notice and that there was actually due the State of Illinois the sum of $30.00, for each of said years and not the sum of $60.00 for each of said years, and there is now due the claimant the sum of $60.00 as an overpayment.

It is also averred that on June 24, 1939 claimant called to the attention of the Secretary of State the fact of this overpayment for the years 1937 and 1938 and on June 27, 1939 claimant received acknowledgment of the letter to the Secretary of State in which he acknowledged the erroneous assessment, but stated he could not refund the amount of the overpayment because the amount had been paid to the State Treasury.

The Attorney General has made a motion to dismiss and as grounds of the motion he says that claimant does not set forth a claim which the State of Illinois could discharge and pay, in that claimant herein seeks a refund of franchise tax paid in 1937 and 1938, not under protest or with objection thereto, and without a request for a hearing thereon in accordance with the statute of the tax now alleged to have been erroneously assessed.

In view of the facts, this court, though reluctant to do so, must sustain the motion of the Attorney General.

It is not claimed that objection of any kind was made by the claimant. This court has had occasion to pass upon similar facts many times and now it is a settled doctrine of this court that where a franchise tax is erroneously assessed and no objection is made thereto, and no request is made for a hearing thereon in accordance with the statute, such payment consisted of voluntary payment within the legal meaning of these words.

Fried & Bell Paper Co. vs. State, 8 C. C. R. 531;
Niles Center Mercantile Co. vs. State, No. 2608 and others.

These facts were well known to claimant. It certainly knew the amount of its capital stock, and it is presumptional law that its managing officers knew the statute providing for a hearing on this very question. The argument is made by counsel for claimant that common honesty and decency requires a refund of the amount in question, and he has ably presented in oral argument that question, and he likens it to an individual who has received money from someone for which he is not justly entitled, hut we think that this is not a fair comparison.

The Secretary of State has a multitude of duties, both in the corporation department, and for other things. Manifestly, he must rely upon others to perform those services. Manifestly, these duties must be performed with much dispatch. While it may be said that the claimant likewise has many duties to perform yet this is personal to the claimant and ever since its business was incorporated it has known the_ amount of its capital stock, yet, when the representative of the Secretary of State, in its notice demanded payment on the capital stock of $120,000.00, claimant must have known that this was in excess of the amount of its capital stock, and should have immediately advised the Secretary of State of its error. When such information did go to the Secretary of State, the error in amount of capital stock was promptly corrected, but inasmuch as the Secretary of State is required to promptly pay all funds he receives into the State Treasury, and that having been done, the Secretary could not, as a matter of law, return this money to claimant.

The only way that that money could now be paid to claimant would be by a Special Act and Appropriation of the Legislature, with the attendant confusion to other State business caused thereby.

This court, and the Supreme Court of Illinois, have repeatedly held that where an illegal or excessive tax is paid voluntarily, and with full knowledge of all the facts, it cannot be recovered, and where such tax is paid under a mistake of law, it may not be recovered.

For the reasons herein stated, the claim will be denied.


text:
    (No. 3095
    Otto J. Blaha, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 23, 1941.

    Nash, Ahern, McDermott, McNally & Kiley and Michael M. Phillips, for claimant.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The complaint charges that on the 1st day of June, 1936, claimant was in the employ of the State of Illinois, in the office of the Auditor of Public Accounts, in the Division of Building and Loan Association as a State Examiner, it being his duty to examine books and records of Building and Loan Associations and to travel through the State on behalf of the State in the counties of Cook, Kane and Lake, for the aforesaid purpose. That while so employed, it became necessary for the claimant to go upon an errand for and on behalf of his employer, which errand took him along and upon LaSalle Street in the City of Chicago, and that adjacent to the building, which is upon the aforesaid street, known and described as 100 North LaSalle Street, was a public sidewalk which was used by the general public. The building at 100 North LaSalle was owned and operated by the Beywall Building Corporation. That at all times both prior to and at the time of the occurrence of the accident, claimant was in the exercise of due care and caution for his own safety. That at the time mentioned claimant was on LaSalle Street it was the duty of the aforementioned owner of the building to equip, maintain, control, manage, operate and use the said public building so as not to injure one rightfully upon the sidewalk, but notwithstanding that duty, the owner of the building improperly equipped, maintained, controlled, and managed it so that a certain glass window was caused to and did actually fall from the sixth floor of the building and struck the claimant with great force and violence and caused severe injuries to claimant, and claimant has filed his claim against respondent for the sum of $25,000.00.

The facts set forth in the complaint are that of an action in common law, but the State is not liable under our Constitution for an action of that kind, and the claimant, being in the employ of the Auditor of Public Accounts, we have taken the complaint as that of a petition under the Workmen’s Compensation Act. However, it does not appear from the complaint that notice of the accident was ever given to the respondent or any claim for compensation made prior to the filing of the „ complaint herein. Under Section 24 of the Compensation Act notice of the accident should be given within 30 days after the accident. This was not done, and this court has no jurisdiction to entertain a claim for an award for compensation to an injured State employee unless it is shown that notice of the accident was given within thirty days after the accident, and claim for compensation made within six months from the time of the accident.

Inland Rubber Co. vs. Industrial Comm., 309 Ill. 43;
Moustgaard vs. Industrial Comm., 332 Ill. 386.

and numerous other authorities.

No notice having been given, and no claim for compensation having been made within the time required by law, the motion to dismiss must be allowed and the claim dismissed.


author: Mr. Chief Justice Hollerich

text:
    (No. 3569
    Bureau of Water of the City of Chicago, a Municipal Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 23, 1941.

    Barnet Hodes, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

The parties hereto have stipulated that this claim may be considered upon the report of the Adjutant General and the report of the Auditor of Public Accounts of the respondent relative thereto.

From such reports it appears that the claimant furnished water for the Diversey Parkway Armory in Chicago from November 18, 1938 to September 30, 1940; that on December 7, 1939 a statement for water service to that date was rendered to the custodian of the Armory who transmitted same to the Adjutant General’s office; that thereupon the Adjutant General advised claimant that separate statements should be furnished for the period prior to June 30, 1939 and for the period subsequent thereto, and that inasmuch as the appropriation for the 60th biennium had lapsed, the statement for the service furnished prior to June 30, 1939 should be presented to the Court of Claims.

There is no question but what water service was furnished, as contended by claimant,, and that pursuant to the terms of the lease under which the Armory was held the lessee is liable for such service. It also appears from the report of the Auditor of Public Accounts that on November 18, 1938 the unexpended balance in the Adjutant General’s appropriation made by the 60th General Assembly under the heading of “Illinois National Guard and Naval Militia” for ordinary expenses, repairs and equipment was $325,143.79.

We have repeatedly held that where materials or supplies have been properly furnished to the State, and a bill therefor has been submitted within a reasonable time, but the same was not approved and vouchered for payment before the lapse of the appropriation from which it is payable, without any fault or neglect on the part of the claimant, an award for the reasonable value of such materials or supplies will be made, where, at the time the expenses were incurred there were sufficient funds remaining unexpended in the appropriation to pay for the same. Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165; Indian Mortorcycle Co. vs. State, 9 C. C. R. 526; Metropolitan Electrical Supply Co. vs. State, 10 C. C. R. 346.

This case comes within the rule above set forth, and award is therefore entered in favor of the claimant for the sum of Sixty-eight Dollars and Forty Cents ($68.40).


text:
    (No. 3606
    Rudolph Gayan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 23, 1941.

    Theodore W. Hinds, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

This is a Workmen’s Compensation claim arising out of an injury to claimant, Rudolph Gayan, while employed by the Division of Highways. The record discloses that on November 26, 1940 claimant was working as a highway maintenance man for said Division of the Department of Works and Buildings in District No. 3; that he had worked in that capacity at а. salary of $135.00 per month throughout the year next preceding such date; that he had no children under sixteen years of age dependent upon him at that time. The record further discloses that at about 7:15 P. M. on said date he was engaged in the course of his duties in uncoupling a snow plow from a truck owned by the Division of Highways, the work being done in a storage yard on land leased by the Division at St'reator, Illinois, and the purpose thereof being to permit the repair of the plow-hoist. While so working, his right index finger was caught in the coupling and was crushed. Claimant was taken to St. Mary’s Hospital in Streator, and the attending physician, Dr. Munson, later reported to the Division, regarding the injury as follows:

“Crushing injury to distal phalanx of finger? Treatment — amputated distal phalanx. Permanent disability — total loss of distal phalanx right index finger.”

Claimant returned to work for the Division on January б, 1941. He was paid compensation for temporary total disability in the total sum of $123.82 for the period from November 27, 1940 to January 5, 1941 inclusive. The Division also paid Dr. F. W. Munson $44.00 and St. Mary’s Hospital $96.00, being all the medical and hospital expense incurred in connection with such accident.

Claimant seeks an award for the specific loss of the distal phalange of his right index finger, and in submitting his claim acknowledges that he has heretofore received an overpayment of $29.53 for temporary total disability heretofore paid him for time lost because of such accidental injury. This computation is correct as claimant would be entitled to such ternporary total disability from November 27, 1940, or a period of 5 5/7 weeks. His average weekly wage was $31.54. He would therefore be entitled to the maximum of $15.00 per week plus ten (10) per cent, or a rate of $16.50 per week, or a total of $94.29. He was paid $123.82, or an over-payment of $29.53.

Under the provisions of Section 8 (e) Subsections 2 and 6 of the Workmen’s Compensation Act, he is entitled to a further award for specific injuries, i. e., the loss of the first phalange of the index finger of the right hand, fifty (50) per cent of his average weekly wage for the period of twenty (20) weeks, or $330.00. From this amount should be deducted the over-payment of $29.53 heretofore made for temporary total disability, leaving a net award of $300.47.

An award is therefore hereby made in favor of claimant, Rudolph Gayan, for specific injuries as above stated in the sum of $300.47.

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


author: Me. Justice Linscott

text:
    (No. 2721
    M. D. Knowlton Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 23, 1941.
    Claimant, pro se.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

The following was received from petitioner:

“We have a letter dated the 2nd of August from the Secretary of State of Springfield, Illinois, stating that he can not refund to us the taxes erroneously collected unless we make a claim through your Court of Claims.
“The amount of the refunds is so small that all of it would be used up if we went through any legal procedure or red tape. We, therefore, ask that you communicate with the Secretary of State of Springfield, Illinois and confirm these items and request him to send us his check for this amount. The amounts to be refunded are as follows:
For the year 1932 — $40.00 refund For the year 1933 — $40.00 refund For the year 1934 — $ 7.34 refund making a total of $87.34.
“They have our certified copies of our annual reports for all of these years and simply made the bills' out incorrectly in sending them to us. Our annual statements are on file with the Secretary of State of Springfield, Illinois and they show the proper capital stock issued.
“We would appreciate your giving this your attention in carrying out the matter as outlined — that efficiency and saving of expense may be carried out.
“No one else has any interest in this claim.
M. D. Knowlton Company.
(Signed) F. K. Knowlton.
(Seal) Frederick K. Knowlton, Vice Pres.
(Notary Public)
Subscribed and sworn to before me this 20th day of August, 1935.”

We have treated the above as a complaint. Apparently claimant did not consider it worth while to employ counsel. Apparently they are a foreign corporation. The claim was filed on August 23, 1935. The total. amount of refund they are asking is $87.34. v

The Attorney General puts up the facts, and it appears that claimant had its secretary’s annual reports for the years mentioned, and made out the hills incorrectly in forwarding such hills to the Secretary of State.

This corporation formerly represented to the Secretary of1 State that it had a capital stock of $900,000.00, all of which was issued under the general corporation act of 1919, as amended in 1927. The fees charged by the Secretary of State’s office were based upon the issued stock, which issued stock would become the stated capital under the present Corporation Act of 1933. Nothing was filed with the Secretary of State showing a change of capital or a change in the issued stock until June 28, 1935.

Pursuant to Section 102, Chapter 32, of the General Corporation Act of 1919, a corporation must make a report in writing to the Secretary of State between February 1, and March 1st of each year, on forms to be furnished by the Secretary of State, and such report must disclose such facts as are necessary to enable the Secretary of State to ascertain the proportion of its capital stock represented by business transacted and tangible property located in the State of Illinois, and such other information as may be necessary or appropriate in order to assess the actual license fee or franchise tax.

Section 105 of the same chapter provides that each corporation shall pay the Secretary of State an annual license fee or franchise tax of five cents on each $100.00 or the proportion of its issued capital stock represented by business transacted and property located in this State, but in no event shall the amount be less than that required of corporations having no property or business in this State.

Section 115 of the 1933 Corporation Act made provision for the annual report to be filed by foreign corporations and requiring information in the report on numerous matters which included a statement expressed in dollars of the value of all the property owned by the corporation, wherever located, and the value of the property located within this State, and a statement expressed in dollars of the gross amount of business transacted by the corporation for the twelve months ended on the 31'st of December preceding and the gross amount transacted by the corporation at or from places of business in this State.

Nothing appears in the record showing duress of any kind, or any facts which would justify this court in directing a refund by the way of recommending an award to the Legislature for the amount involved.

The question at issue in this claim seems to have arisen from the fact that a report made by the corporation of its outstanding capitalization was $900,000.00, when, in fact, sometime in 1932 its capitalization was reduced to $300,000.00, and no formal report of such reduction was made to the Secretary of State until June 28, 1935. The annual report made by claimant for 1932 and on which assessment was made for that year, showed the capital stock as $900,000.00. Apparently the assessment for that year was correctly made. It was $50.00 based upon Section 107 of the Act above referred to, which fixed an arbitrary assessment of $50.00 on corporations having capital of more than $500,000.00 and not exceeding one million dollars, and whose business in Illinois was not sufficient to justify a higher assessment under Section 105.

Other provisions of the statute make provision for correction of errors, if made in that time, and this must be strictly followed. It is a general rule in this State that taxes paid voluntarily and not under duress cannot be recovered by the taxpayer even though the tax be illegal.

Davis vs. Board of Education, 323 Ill. 281;
Yates vs. Royal Insurance Co., 200 id 102.

and reaffirmed the case of LeFevre vs. County of Lee, 353 Ill. 30.

This court has no power' or jurisdiction to waive rules of law of this kind or character. The court is a creature of the statute and has no powers except those expressly conferred upon it by statute, or such powers as are necessary to carry out the powers so conferred. It has no power to appropriate, give away, or dispose of State funds or property for a purpose not authorized by law.

Without unduly discussing this proposition, we must hold that taxes paid under the circumstances in this case cannot be recovered and claim must be denied.


text:
    (No. 3350
    Raymond C. Lefler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 23, 1941.

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

delivered the opinion of the court:

Claimant alleges he was employed as a prison guard by the penal institution of the Division of Public Welfare at the old Illinois State Penitentiary, at Joliet, Illinois, and on January 26, 1938, at two o’clock a. me he was stricken with acute appendicitis and immediately rushed to St. Joseph’s Hospital at Joliet, Illinois, where an emergency operation was performed by Dr. W. J. Roberts of Lockport, Illinois. That as a result of said operation pneumonia developed which left claimant bedridden for a period of seven weeks, and as a result thereof claimant was not able to return to work until April 1,1938. He charges that although he was stricken while on duty and in the course of his employment with respondent, and while furthering the interests of respondent for which he was employed, yet he has never received any compensation, wages or salary or any other remuneration from respondent for the period in which he was out of employment. He claims to be entitled to the sum of $237.50, being for two months salary at $118.75 per month, and doctors bill amounting to $148.00, nurses bills totaling $50.61, and states that he presented his bill to John Stelle, Lt. Governor of the State of Illinois and in turn,the Lt. Governor turned the same over to Edward J. Hughes as Secretary of State and ex-officio secretary of the Court of Claims; that the said Hughes, as Secretary of State and ex-officio secretary of, the Court of Claims advised claimant by letter to file a claim with this court. The total amount asked for is $436.11.

There is nothing alleged in the complaint showing that claimant’s ailment arose out of or in the course of the employment, and there is no evidence in the record to justify a holding that the claimant’s condition was accidental or arose out of or in the course of Ms employment. His physician, Dr. Roberts, in answer to the following question:

“The operation that you performed was an appendectomy — no relation to hernia at all? This condition that you found in Mr. Lefler’s case was from an internal condition?”
A. “Yes, internal, not occupational.”

The physician stated that from the appendectomy there was a complete recovery and nothing to indicate claimant had any permanent disability. The doctor stated from his experience he would say that the appendicitis in this case was not the result of any occupational ailment.

Before there can be a recovery it would be necessary for claimant to show some law upon which the court could base an award. He has shown no legal basis for an award.

The claim will, therefore, be denied.