text:
    (No. 3244
    Progressive Printing & Calendar Co., Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 23, 1941.

    Meyer B. Weissman and Philip N. Shapiro, for claimant.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeks an award of One Hundred Forty-eight, and 65/100 ($148.65) Dollars for a refund of Retailer’s Occupation Tax. The complaint alleges that during the period from July, 1933 to February, 1936, claimant paid Nine Hundred Ninety and 99/100 ($990.99) Dollars on special printed matter, which had no commercial value and was not subject, to the occupation tax under the above statute. (Chapter 120, Illinois Revised Statutes, 1937.) On March 10, 1938 the Department of Finance issued claimant a crédit memorandum for Bight Hundred Forty-two and 34/100 ($842.34) Dollars. Claimant contends that under Section 6 of the Retailer’s Occupation Tax Act it was entitled to a refund of the full amount of Nine Hundred Ninety and 99/100 ($990.99) Dollars, and now seeks to recover the balance of One Hundred Forty-eight and 65/100 ($148.65) Dollars.

Nothing appears in the complaint as to why a portion and not all of such refund was made.

The Attorney General filed a motion to dismiss the claim on the ground that it shows upon its face that claimant has an adequate remedy at law in the courts of general jurisdiction, and that therefore the Court of Claims should not take jurisdiction. This motion has been taken under advisement with the case. The cause is now submitted upon such motion, a report from the Department of Finance and Brief and Argument of the respective parties.

Section 6 of said Act (Par. 445, Chap. 120, Ill. Rev. Stat. 1937) provides as follows:

“If it shall appear that an amount of tax, penalty or interest has been paid which was not due under the provisions of this Act, whether as the result of a mistake of fact or an error of law, then such amount shall be credited against any tax due, or to become due, under this Act from the person who made the erroneous payment, or such amount shall be refunded to such person by the department.”

It appears that under a rule promulgated by the Retailer’s Occupation Tax Division of1 the Department of Finance, identified as Rule No. 36, claimant corporation paid taxes to the Department in the amount of Nine Hundred Ninety and 99/100 ($990.99) Dollars on receipts from sales of special printed matter, it being the ruling of the Department at that time that such sales were within the meaning of the Retailer ’s Occupation Tax Act. The Supreme Court of Illinois in the case of Adair Printing Company, et al. vs. Ames, et al., 364 Ill. 342, held that such ruling was in error and that the tax should not be applied to sales of special printed matter which was without commercial value, i. e., which has no use or value to any person other than the one for whom the printing is done, such as letterheads, circulars, attorneys’ briefs, etc. The Department revised its rule on October 26, 1936 in accordance with the above decision, and proceeded to .accept claims for credit by those who had been compelled to erroneously pay such tax. In an effort to then collect such tax from those who had supplied such printers with supplies, the Department arbitrarily fixed a figure of 15 per cent of such tax previously paid by the printer as a deduction to be withheld by the Department. In certain instances this 15 per cent was not withheld if the printer furnished a satisfactory list of his material men or supply houses.

Claimant entered into no agreement with the Finance Department and did not furnish the requested list, and the following notation was made in regard to the 15 per cent deduction of refund in his case, i. e., “Deduction of which is hereby protested but allowed under protest, and claim for which 15 per cent is to be made before the Court of Claims or other, appropriate body.”

The Attorney General contends that if the claimant is, as a matter of law, entitled to a refund under Section 6 above quoted, and if it is the duty of the department to make such a refund, that claimant could enforce its rights by a mandamus case in a court of general jurisdiction. Further, that where the claimant has an adequate remedy at law in a court of general jurisdiction, the Court of Claims will not take jurisdiction for the purpose of making an award. The cases cited by counsel in support of the latter proposition are all somewhat different from the present case, because of the special wording of the Act here in question. In the Mohawk Carpet Mill Case, 8 C. C. R. 37 and the Silver Burdette Company Case, 8 C. C. R. 539, a franchise tax refund was involved, under a statute which provided that an injunction must first be sought by plaintiffs as a preliminary to other rights. In the Booth Fisheries Company Case, 6 C. C. R. 262 and Childs Case, 6 C. C. R. 308, litigation had been had in both instances in the Civil Courts and the suits before the Court of Claims would in effect have been a review of the decision of the Civil Courts. This court there held that it had no appellate jurisdiction and would not review or set aside directly or indirectly orders and decrees of the Civil Courts.

Under the wording of Section 6 of the Betailer’s Occupation Tax Act above quoted, it is the apparent intent of the Legislature that a refund should be made of such tax when erroneously paid and not due under the provisions of the Act. It was the apparent intention of the Legislature that such refunds should be determined and made with as little difficulty or expense to the taxpayer as possible.

We have repeatedly stated that this court was created by the Legislature and exists for the purpose of considering claims for which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable.

The Retailer’s Occupation Tax Act provides for refunds in proper cases. Under the provisions of said Act, if the State were suable in the Civil Courts the claimant would have a right of action. There is nothing; in the wording thereof which makes the filing of an injunction or mandamus suit a necessary preliminary for consideration by this court of the merits of such claim. Neither can. the failure or refusal of claimant to furnish to the Department a list of the material men or supply houses from whom it received supplies, justify the court in refusing an award, in view of the wording of Section 6 above quoted. They may be subject to criticism for lack 6f cooperation and failure to aid the Department in carrying out the law relative to the collection of tax, but nothing appears in the Act which would justify penalizing them for so doing, or which would authorize the Department of Finance to arbitrarily fix a figure of 15 per cent as a deduction rate ill the making of refunds to 'which claimant was otherwise entitled.

The motion of the Attorney General to dismiss is denied and an award 'is hereby entered in favor of claimant in the sum of One Hundred Forty-eight and 65/100 ($148.65) Dollars.


source: Caselaw Access Project

author: Mr. Justice Linscott

license: Public Domain

text:
    (No. 2888
    Ernest R. Amick, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 24, 1941.

    Evan L. Seajrcy, for claimant.
    George F. Barrett, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant avers that he was in the employ of the State from July 1907 until October 1,1935, and from July 1, 1931 to July 1, '1933, he held the position of Chief Clerk and Statistician in the Department of Public Welfare, and for that two years the salary for said position as fixed by the Legislature was $4,000.00 per annum, but claimant was paid on the basis of $3,600.00 per year only.

The Bill of Particulars sets out the following:

Provided by 51th General Assembly.
2 years at $4,000.00 per annum,.....................$8,000.00
Less 10% by agreement 2/1/33 to 7/1/33, 5 months,
being 5/12 of $400.00.............................. 166.67
- $7,833.33
Received by Claimant.
2 years at $3,600.00 per annum.....................$7,200.00
Less 10% by agreement 2/1/33 to 7/1/33, 5 months,
being 5/12 of $360.00.............................. 150.00
-- $7,050.00
Balance due claimant, being............................. $ 783.33

Claimant is claiming a balance of $783.33.

■It is stipulated by counsel that the claim is to be submitted to this court upon the complaint filed and a letter dated May 11, 1936 from Mr. A. L. Bowen, Director of the Department of' Public Welfare, to the Attorney General to be included in the statement filed by respondent and such briefs and arguments as may be filed on behalf of the respective parties. This stipulation was signed May 19,1936. The claim was filed April 28, 1936.

Mr. Bowen’s letter dated May 11,1936, is as follows:

“This will acknowledge a copy of claim No. 2888, made in behalf of Ernest R. Amick against the State of Illinois, on account of alleged salary due. For your information, this claim is the first reference the department has had in this matter.
In checking back the records, we find that on .page 88 of the laws of Illinois, 57th General Assembly, 1931, the salary of the Chief Clerk and Statistician is set out at the rate of $4,000.00. per annum. We also find that the payrolls show that Mr. Amick was paid at the rate of $300.00 per month for this biennium until by agreement on February 1, 1933, the salary of $300.00 per month was reduced by 10%.
We are returning, herewith, the copy of claim No. 2888.
We are also sending you this letter in duplicate as per your letter of April 30th.”

From this letter it appears that Mr. Amick was paid at the rate of $300.00 per month for the biennium until by agreement on February 1, 1933 his salary was reduced 10%. We know of no law that will prohibit parties accepting less money than they had originally agreed upon. This is a claim for back compensation.

Section 19 of Article IV of the Constitution provides as follows:

The General Assembly shall never grant or authorize extra compensation fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made nor authorize the payment of any claim, or part thereof, hereafter created against the State under any agreement or contract made without express authority of law.

It will be recalled that this cut of 10% was made at a time of a great depression and was agreed to by the claimant and all other officers or employees of the State who were receiving above a certain amount. This claim presents the proposition as to whether or not an employee of the State who holds a position for which a specific amount has been appropriated as salary, or compensation, may continue in such position throughout the entire biennium for which the appropriation was made! and receive a smaller amount payable semimonthly than was so appropriated as such salary or compensation, and then when the biennium is ended bring suit for the difference between the amount appropriated and the amount received.

It is the general rule, however, that the legal right to the office carries with it the right of the salary or emoluments of the office. The salary follows the legal title. This doctrine is so generally held by the courts that authorities hardly need be cited. While this rule has been most frequently announced and applied in suits between de jure and de facto officers over the salary to an office, it is nevertheless a basic principle of law and one of general application.

Here, however, there was an agreement to accept less, an agreement no doubt actuated by financial status of the State and the Nation in general. If the claimant when in the service of the State had been an officer and not an employee, there seems to be no question but what he would have been entitled to the salary as fixed by law, but he was an employee and not an officer. Had he been an officer his salary could not have been included in the general appropriation of the Department of Public Welfare, but the salary would have had to be included in the bill appropriating salaries to other State officers. The Constitution provides that the bills making appropriation for the salaries of the officers of the State Grovernment shall contain no provision of any other subject. (Sec. 16, Art. 4). Having been paid on the basis of $3,600.00 per annum, and having accepted the vouchers without protest, he is now estopped from insisting that he is entitled to payment on the basis of $4,000.00 per annum.

Item 3 of Section 9, Chapter 127b of the Statutes, seems tc provide directly that where payment is made for personal services the same “shall be construed as full payment for all services rendered between the dates specified in the payroll or other voucher. ’ ’

Claimant relies upon Farley vs. State, 6 C. C. R. 538. The claimant in that case was allowed a claim. We do not regard that case as being in point, because in the case at bar the claimant seems to have agreed to accept a 10% cut.

Claimant also cites Brinkerhoff vs. State, 5 C. C. R. 271. Ir this case it appears that the employing officer “does not care to oppose the above claim” and the court “as a matter of equity and good conscience allowed the claim.”

In the case last referred to, apparently the State waived any defense, and in Fogarty vs. State, 5 C. C. R. 349, the court found the Legislature intended the occupant of this position should receive $175.00 per "month, and allowed an award for the difference between amount appropriated and the amount paid. Here again, it does not appear that the claimant had agreed to the cut, as in the case at bar.

In the case of Isham vs. State, 8 C. C. R. page 50, this court found that no complaint was made as to the manner in which claimant in that case performed her duties and that she had been assured by the Assistant Director on several occasions that she would be paid her salary at the rate of $200.00 per month as agreed, and it had been stipulated that the State of Illinois appropriated the sum of $2,400.00 for manager of the Chicago Office of the Division of Registration. When claimant could not get the salary that had been agreed upon, she left the employ of the State for the reason that she was only being paid $125.00 a month when she should have received $200.00 per month. Here, again, there had been no agreement to accept less than what the employee or claimant had agreed to take.

Because of the agreement of claimant to accept a reduction of 10% as his compensation, an award will be denied and the cause dismissed.


text:
    (No. 2641
    Marcella M. Callahan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 24, 1941.

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

delivered the opinion of the court:

This claim was filed with the Clerk of this court on the 23rd day of March, 1935, and alleges that claimant for some time before the 6th day of February, 1934, was employed by the Research and Educational Hospitals, Department of Public Welfare of the State of Illinois, as a manual worker, and alleges that on the 6th of February, 1934, while actually engaged in duties incident to her employment, she suffered an injury to the first finger of her right hand, and that while cleaning a sink, the property of respondent, into which sink she had first - sprinkled a washing or scrubbing powder furnished her by respondent for that purpose, the first finger of her right hand became ahraised, scratched, lacerated, sore and raw, and shortly thereafter became infected and swollen; that she suffered severe pains and discomfort and that as a result thereof she was treated by the doctors of the Institution, who finally advised an amputation of said finger, the amputation was performed and the first finger of her right hand was amputated at the third joint, thus removing the entire finger.

It is further alleged that on February 10,1934, the claimant informed Miss Hamilton, one of her superiors, that she had a sore finger, and that Miss Hamilton then called Miss Day, also a superior in the same employment, and that the claimant was then and there given medical care and attention by physicians in the employ of the Institution.

Thereafter, on or about the 13th day of September, 1934, claimant filed her application for adjustment of her claim before the Industrial Commission of the State of Illinois, but no action was taken thereon, and finally dismissed with the recommendation that her claim be filed in the Court of Claims.

Because of the view we take of this case, it will be unnecessary for us to go into further details except to say respondent has paid all hospital bills and doctor bills and to say further that no monies or compensation had been paid claimant on account of the injury.

The Attorney General has made a motion to dismiss. It appears from the complaint that notice was given in apt time, but a claim was not made for compensation within the time prescribed by statute. Under the Court of Claims Act, the Court of Claims must administer the Workmen’s Compensation law in accordance with the terms and provisions of that law. No compensation was ever paid to claimant. Under the statute, no proceedings for compensation, under this Act shall be maintained unless notice of the accident has been given to the employer within thirty days. This apparently was done and no proceedings for compensation under the Act shall be maintained unless claim for compensation has been made within six months after the accident, provided that in any case unless application for compensation is filed with the Industrial Commission within one year after the date of the accident, or within one year after the date of the last payment of compensation, if any had been paid, then the right to file such application shall be barred.

It is, therefore, necessary to give this court jurisdiction to make an application' for compensation within one year. This has been the holding of this court and the Supreme Court of Ulinois in industrial cases many times. The motion of the Attorney General will, therefore, be sustained and the claim denied.


text:
    (No. 3190
    Harry Gruber, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 24, 1941.

    Leo L. Hoffman, for claimant.
    George P. Barrett, Attorney General; Murray P. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Complaint charges that on August 17, 1937 claimant was the owner of a certain automobile which was being driven in an easterly direction along a certain public highway in the city of Chicago, and that a National Guard Military vehicle loaned to the respondent, State of Illinois, by the Federal Government, was then and there being driven in a northerly direction by one Joseph Gerling, driver of the Government vehicle. That claimant was operating his car with due care and caution and the State by its agents, servants and employes unlawfully, negligently, carelessly and improperly managed and propelled the military vehicle so that it struck the car driven by claimant, with damage to the claimant of $26.75.

The Attorney General has made a motion to dismiss for the reason that the complaint does not set forth a claim which the State of Illinois, as a sovereign commonwealth, should discharge and pay, for the reason that claimant seeks an award predicated upon liability of the State for damages to claimant’s motor vehicle alleged to have been caused and sustained by the negligent, unlawful, careless and improper operation of a motor truck by officers or members of the Illinois National Guard.

This court and the Supreme Court of Illinois have repeatedly held that the State in the organization, maintenance and operation of the Illinois National Guard, is engaged in a governmental function and is, therefore, not liable for personal injuries or property damage, occasioned by the negligence or wrongful conduct of officers or members of the Illinois National Guard, or officers, employes, servants or agents of the State charged with the organization, maintenance, operation or training of said National Guard.

See Petersen vs. State, 8 C. C. R. 9.

The motion of the Attorney General will, therefore, be •sustained and an award denied.


text:
    (No. 3364
    Madera Wineries & Distilleries, K. Arakelian, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 24, 1941.

    Allen H. Schultz, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant, a corporation, licensed to do business in the State of Illinois, avers that it is engaged in the bottling of bulk wines for resale and that it purchases wines in bulk from licensees in Illinois, and from licensees of other states, and then bottles the same for resale to licensed retailers or licensed distributors in Illinois.

It is charged that the annual fee for an importing distributor is $250.00, and for a Class B manufacturer’s license, that is one who manufactures wine, is $500.00, and that the fiscal license period commenced May 1, 1935; that prior to May 1, 1935, the claimant called the attention of the Illinois Liquor Control Commission to a conflict in the law and regulation pertaining to license fee; that at that time the Chicago office of the Commission informed claimant that it was aware of a conflict in the law, and that there would be a meeting of the Commission to rule on the question.

It is charged that claimant was reluctant to pay $500.00 for a Class B manufacturer’s license when it believed it should only be liable for an importing distributor’s license for which the annual fee was $250.00, but finding it necessary to be licensed on May 1,1935, claimant paid the $500.00 under protest.

It is further charged that the Chicago office of the Commission informed the claimant that it would not be necessary for it to file suit for a temporary injunction under the statute, and relying upon this action of the Commission, the claimant did not pursue the statutory remedy but followed the advice of the Chicago office of the Commission that it would rescind the regulation and refund to the claimant the sum of $250.00.

It is further charged that on May 31, 1935, the Commission met and rescinded the regulation as it promised to do and recommended a refund of $250.00 to the Department of Finance, which department controls all taxes collected by the Commission, but that the Department of Finance refused to grant the refund for the reason that the refund did not fall ■within one of the provisions for which a refund may be granted under the law, namely, death or insolvency of the licensee before the license period expired.

Claimant charges that in view of the facts, and because it relied upon the commission and did not file a suit for injunction because the Chicago office of the Commission promised that a refund would be granted, that this court recognize its claim and direct that an award be made to it in the sum of $250.00.

The Attorney General has made a motion to dismiss this case, and as grounds for the motion says that the claimant does not set forth a claim which the State of Illinois, as a sovereign commonwealth should discharge and pay for the reason that claimant seeks an award representing a refund of a portion of the fee paid by it for a license under the Illinois Liquor Control Act, and the complaint shows upon its face that the claimant did not avail itself of the statutory provisions.

The statute fully sets forth and describes the nature of .claimant’s business and the fees to be charged therefor. The printed rules and regulations of the Illinois Liquor Control Commission and the Department of Finance read as follows:

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

The annual fee for an importing distributor is $250.00 and the annual fee for a manufacturer is $500.00, or was during the year complained of.

It is a rule well known under the law that dealing with any agent or business official one is bound to know just what powers such a public official has, and it appears from the complaint in this case that claimant did know, of such powers that the Commission had and was fully advised in the statue. The statute provided a remedy in the courts for claimant but for some untenable reason, claimant did not see fit to take advantage of this remedy. As we view the matter, we have no jurisdiction, and for the lack of jurisdiction, we must decline to make an award.

Award declined.

Judge A. L. Yantis dissenting.


author: Per Curiam

text:
    (No. 2501
    John Schoenig, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 24, 1941.

    Brown, Hat & Stephens, for claimant.
    George P. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Per Curiam

The complaint in this case alleges that on October 14, 1930, John R. Cranor was general superintendent of the lilinois State Reformatory at Pontiac, Illinois, and the official of the State charged with the employment of teachers and other workers at this reformatory. That on or about that date, as General Superintendent, he requested the business manager of Local Union No. 122 of the International Brotherhood of Blacksmiths, Drop Forgers and Helpers to furnish him with a member of the Union who could teach the trade of blacksmithing to the inmates of the reformatory, and agreed to pay such an individual the sum of One Hundred Seventy-five Dollars per month, and in addition thereto to furnish him with his maintenance, then valued at Twenty-five Dollars per month. That pursuant to that request, the Union Business Agent sent the claimant John Schoenig to Cranor as an applicant for the job and he was employed as a teacher of the trade of blacksmithing at the Pontiac Reformatory, otherwise known as Hlinois State Reformatory, at the compensation above mentioned. The claimant commenced work on about October 15, 1930, and continued to occupy such position until September 5, 1933, and at all times performed all tasks assigned to him, and his work met with the approval of the General Superintendent and other officials of the Illinois State Reformatory. When the claimant took the position he had an understanding that he would do so only for the consideration of the agreed compensation and only on condition the hours and conditions of labor in that position should be subject to the rules and regulations then laid down by the Union, and that was agreed to by the General Superintendent, Cranor, but, notwithstanding, the agreement, from the date claimant commenced work until May 1, 1931, claimant was only paid one hundred fifty dollars per month instead of one hundred seventy-five dollars per month agreed upon. On this account, he objected to the General Superintendent and Superintendent Cranor to each objection stated he expected to pay the said $175.00 per month, but they had not been able to get that through the necessary appropriation, but convinced the claimant that he would have the necessary appropriation through subsequently and then would pay to claimant the additional $25.00 per month for each month claimant was employed. Claimant made frequent requests for this additional sum of $25.00 per month, which represented the difference in the salary of $175.00 per month agreed upon and the salary of $150.00 per month paid during the period from October 15th, 1930 to May 1, 1931; and that amount never has been paid to claimant, and it is charged the State in equity and good conscience is obligated to pay this amount, which totals the sum of $162.50, to the claimant.

It is further charged that May 5, 1931, claimant was notified by the Superintendent that effective May, 1931, his salary would be increased to $175.00 per month, and this sum was paid to claimant from that time until January 1, 1933.

When claimant commenced work, on or about October 15, 1930, and for some time subsequent thereto, he lived at the Reformatory, and his room and board were furnished free of charge to him, but prior to March 1, 1931, claimant found it impossible for him to reside in the Reformatory any longer and with the consent and approval of Superintendent Oranor moved to a residence in the city of Pontiac, located outside of the Reformatory, and pursuant to the agreement made when he was employed, claimant became entitled to the agreed reimbursement of $25.00 per month.

It is also charged that after January 1, 1933, claimant was notified that his salary would be cut from $175.00 to $157.50, effective January 1, 1933, and claimant was paid the sum of $157.50 per month from February 1st, 1933 until September 3, 1933, but the agreed sum of $25.00 for maintenance was never paid to claimant, although often requested by him, and it is charged that in equity and good conscience the State of Illinois is obligated to pay claimant the sum of $775.00, representing the maintenance reimbursement to him from the period of March 1st, 1931 until September 5, 1933, at the rate of $25.00 per month.

It is also charged that under the Union rules and regulations, which were the conditions of employment agreed upon by claimant and the said General Superintendent Oranor, when claimant started to work, an employee could not be discharged without giving such employee thirty days notice in writing and that in opposition to these rules and regulations so agreed upon, claimant was discharged on September 5, 1933 without the thirty days notice, and by reason therefor the State became obligated in equity and good conscience to pay to claimant the sum of $118.11, representing salary which claimant would have earned during the.remainder of September had the notice of discharge been given as agreed upon. This averment is in Paragraph 9 of the complaint.

It is also charged, in Paragraph 10 of the complaint, that the Union rules and regulations, which were the conditions of employment agreed upon by claimant and Superintendent Cranor, when claimant started to work, he was entitled each year to a vacation of two weeks with pay, but in 1933 the officials of the Reformatory refused to allow claimant to take said vacation and by reason thereof the State of Illinois became obligated in equity and good conscience to pay claimant the sum of $78.75, representing the salary to claimant for two weeks work.

Under Paragraph 11, it is further charged that under said Union rules and regulations, which were the conditions of employment agreed upon by claimant and Superintendent Cranor, when claimant started to work, claimant was to work only 44 hours a week, and additional compensation was to be paid for all additional work which should be required from him at the regular rate per hour at which claimant was then employed, namely, the rate of $1.19 per hour; that during the reconstruction of the power house claimant was required and did work 114 hours in addition to his regular hours of labor for which he was entitled, under the agreement, to compensation at the rate of $1.19 per hour, that is, to total compensation in the sum of $135.66; and that on the fence job for the Governor’s Mansion, the claimant worked 48 hours in addition to his regular hours of labor; that on the fence job for the Chicago Eye and Ear Institution he worked 112 hours in addition to his regular hours of labor; on the shop lay-out job 60 hours in addition to his regular hours, and on other work 80 hours in addition to his regular hours, making a total of 298 hours in addition to his regular hours of labor on jobs other than reconstruction of the power house previously referred to, for which 298 hours claimant was entitled to compensation at the rate of $1.19 an hour, or a total of $354.62, and although claimant has often requested the officials of the Reformatory for payment of said sums to him for said overtime work, claimant has been refused, wherefore, in equity and good conscience the State of Illinois is obligated to pay claimant said sum of $135.66 and the further sum of $354.62 for said overtime work, and for failure to pay these various obligations claimant says that the State of Illinois owes him the total sum of $1,624.64.

This court has repeatedly held that before a claimant can have an award against the State he must show that he comes within the provisions of some law making the State liable to him for the amount claimed. If he cannot point to some law giving him a right to an award he cannot invoke the principles of equity and good conscience to secure the award.

In other words, an award will not be made merely on the basis of equity and good conscience.

Crabtree vs. State, 7 C. C. R. 207.

and numerous other cases as cited by this court.

The provisions of Paragraph 4 of Section 6 of the Court of Claims with reference to equity and good conscience merely define the jurisdiction of the court and does not create a new liability against the State nor increase or enlarge any existing liability, and limits the jurisdiction of the court to claims under which the State would be liable in law or equity if suable.

Crabtree vs. State, Supra.

We have also held that where there was no legal liability equity cannot create one.

Watkins vs. State, 6 C. C. R. 172.
Crabtree vs. State, Supra.

Claimant does not point out under what authority he was first appointed. It was then a part of our statutory law that the Governor should, by and with advice and consent of the Senate, within 30 days after the Act shall become effective, appoint three persons as Civil Service Commissioners to hold office for the terms of two, four and six years respectively, from the first day of March, 1905, and until their respective successors are appointed and qualified, and they shall constitute the Civil Service Commission.

See Chapter 126, Par. 1, State Civil Service, Cahill’s Bevised Statutes, 1929.

Subsequent provisions of this statute make it the duty of the Commissioners to classify all the offices and places of employment in the State service except as provided in Section 11. This classification shall include all offices and places of employment then in existence or which might hereafter be created in the State service.

From an examination of Section 11, it makes no reference to the position that claimant held. We have not been referred to any statute authorizing claimant’s appointment.

Statutes delegating powers to public officers must be strictly construed and all parties interested must look to the statute for the grant of power.

Diederich vs. Rose, et al., 228 Ill. 610.

Courts cannot make contracts for the parties and where the meaning is plain another meaning cannot be added by implication or intendment. . This rule has been extended so far that our Supreme Court has held that equity will not give relief to one who, under a mistaken belief as to the title of the property places permanent improvements thereon.

Williams vs. Van der Bilt, 145 Ill. 238.

And there can be no recovery by claimant who was a voluntdry worker although the services were performed for a department of the State.

Sterrett vs. State, 5 C. C. R. 172.

In the case of Green & Sons, a corporation, 9 C. C. R. 218, this court held that there can be no recovery of an amount fixed in express contract for services rendered thereunder where the said contract is prohibited by law and a subsequent action will not lie to recover on quantum meruit for reasonable value of said services rendered under said contract on an implied contract to pay for same as no contract will be implied where an express contract is forbidden, and an award based on such claim will be denied.

In Dement, et al. vs. Rokker, et al., 126 Ill. 174, on page 199 of the opinion it is stated:

“The State is never estopped as an individual or private corporation may be on the ground that the agents acting under an apparent authority which is not real — the conclusive presumption that his powers are known rendering such a consequence impossible."

Every person is presumed to know the nature and extent of the powers of municipal officers and therefore cannot be deemed to have been deceived or mislead by acts done without legal authority.

Seegar vs. Mueller, et al., 133 Ill. 86 (95).

It is a familiar principle of law that all persons who deal with municipalities and subordinate boards and agencies of the State and National government must at their peril inquire into the power of the officers or agents of such municipalities, boards or agencies to make the contract contemplated for acts of such officers can only bind in the manner and to the extent of authorized authority.

See Donnelly “Law of Public Contract,” Chap. 5, p. 206.

We do not question the intent of the Superintendent of the Pontiac Reformatory, but claimant must have known, at least the law presumes that he knew that the superintendent could not fix salaries or make appropriations or assume the powers given by law to the legislature, or do other things unless authorized by statute. It is quite probable that the Superintendent of the Reformatory did do all that he could do under the circumstances to secure an appropriation along the lines contended by claimant, and it is not a sufficient answer to this to say that the claimant acted in good faith and performed the services set forth in the complaint, and we must hold that claimant knew that the superintendent had rio power to fix claimant’s salary or compensation in the manner set forth in the complaint.

These acts went on for a considerable period of time and it appears that the alleged promises made by the superintendent were broken the very first month that claimant worked.

It. is averred in the complaint that claimant commenced work on or about October 15, 1930 and continued to occupy such position until September 5, 1933, approximately 35 months. It is charged that he was promised the sum of $175.00 per month, but from the time he commenced work until May 1st the following year, he only received $150.00 per month, and it is charged that he remonstrated with Superintendent Cranor several times, as also charged that to each objection the General Superintendent stated that he expected to pay $175.00 per month but that he had not been able to get through the necessary appropriation and said he would have the necessary appropriation through subsequently and then pay claimant the additional $25.00 per month.

The claimant then knew that the superintendent could not get the appropriation through and he must have known that the legislature is the only power in this State that can make appropriations and the amount of the appropriation is discretionary with the legislature.

Mr. Cranor testified he had been General Superintendent at the Illinois State Reformatory at Pontiac from January 13, 1930 to February 10, 1932. He remembered the claimant and said that he remembered that Mr. Schoenig and he had discussed this extra work,several times. He said “I told him repeatedly that it was necessary for the State to offer him a lower salary than he would ordinarily be entitled to at his trade on the outside, that it was necessary for him to make a sacrifice if he cared to stay with the Institution and that it was not always possible for the Institution to pay as much as the work was really worth due to the limited budget. I promised to use my influence with the proper authorities with a view to having his salary increased and if possible a special compensation for the extra fine work and some of the extra hours which he put in on these two major projects.”

Section 19 of Article IV of the Illinois Constitution of 1870 provides that the General Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor after service has been rendered or a contract made, nor authorize the payment of any claim, or part thereof, hereafter created against the State under any agreement or contract made without express authority of law, and all such unauthorized agreements or contracts shall be null and void.

The Statute also provides that amounts paid from appropriations for personal service of any officer or employee of the State, either temporary or regular, shall be construed as full payment for all services rendered between the dates specified in the payroll and other voucher and no additional sum shall be paid to such officer or employee from any lump sum appropriation, appropriation for extra help or other purpose, or any accumulated balances in specific appropriations, which payments would constitute in fact an additional payment for work already performed and for which remuneration had already been made.

Chap. 127b, Par. 9, Cahill’s Revised Statutes 1929.

In Broderic vs. State, 9 C. C. R. 458, this court held that the statute on State Finances providing among other things that amounts paid from appropriations for personal service of any officer or employee of the State, either temporary or regular, shall be considered -as full payment for all services rendered between the date specified in the payroll or other voucher, and no additional sum shall be paid to such officer or employee from any lump sum or other appropriation is a direct limitation on the right of claimant to salary where such claimant received and’ accepted regular salary warrants for such services during the term of employment for the amount appropriated therefor.

It has been held by this court on numerous occasions that the doctrine of “respondeat superior” does not apply to the. State, and it is not liable for damages for the nonfeasance, misfeasance or malfeasance of its officers or agents.

For the reasons stated the claim will be denied.


author: Me. Justice Linscott

text:
    (No. 2968
    The Tom Collins Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 24, 1941.

    Claimant, pro se.
    G-eorge F. Baeeett, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

The Tom Collins Corporation, now located at Covington, Kentucky, for its cause of action states that it was engaged in the manufacture and bottling of alcoholic and non-alcoholic beverages for resale; that said manufacturing and bottling were carried on at 411 North Paulina Street, Chicago, and that they manufactured the products known as “Tom Collins” and bottled the same for resale to licensed distributors in Illinois and’other states. That the annual fee for a rectifier under the Illinois Liquor Control Law is $2,500.00 and that the fiscal license period commences May 1st of each year.

A portion of the Federal law is set up and the claimant avers that it was engaged in the business of rectifying and bottling alcoholic and non-alcoholic beverages on the same premises and .using the identical bottling units for their alcoholic and non-alcoholic products previous to the issuance of Regulation 15 of the Federal Treasury Department issued July 30, 1934.

This Federal rule prohibited this and on April 30, 1935 claimant was served with an ultimatum of the Internal Revenue Department to remove their rectifying operations from the premises known as 411 North Paulina Street, Chicago, Illinois, not later than July 31, 1935, and desiring to so operate their premises and to do so in compliance with the laws of Illinois, claimants communicated with the Illinois Liquor Control Commission and asked for a ruling as to whether or not the Commission would permit claimant to operate upon payment of the regular rectifier’s fee, and a refund for any unused portion of the time upon claimant’s cessation of business in Illinois, and the Illinois Liquor Commission approved of such practice, and claimant, in accordance with the recommendation of the Illinois Liquor Control Commission notified the Illinois Liquor Control Commission of their cessation of operation in Illinois on August 15,1935, but the State Department of Finance refused to grant the refund for the reason that the refund did not fall within any of the provisions for which refund may be granted under the Illinois Liquor Control law, namely, death or insolvency of the licensee before the license period expired, and that the Illinois Liquor Control Commission had sought to obtain the refund for the claimant from the State Department of Finance, because of its original promise that a refund would be granted, and that no refund has as yet been granted, but notwithstanding this rule of the State Department of Finance, they ask that this court recognize the claim in the sum of $1,666.64. Later the amount of the claim was amended to that of $1,780.88.

The only power that the Illinois Liquor Control Commission had to make refunds was that of a recommendation, which they did make. When money is once paid to the State Treasurer, the only authorized legal power to pay such money out would be by virtue of an Act of the Illinois Legislature, and that is discretionary with the Legislature

All licenses issued by the Department * * * shall be annual licenses and shall expire on April 30th following the issuance.
Sec. 3, Art. 5, Chap. 43, Dram Shop Act and Special Session Laws of 1933-1934, p. 67.

and the license fee is fixed at the sum of $2,500.00.

The Statute provides for the appointment of the Illinois Liquor Control Commission and enumerates its powers, but does not give the Commission the power to make refunds.

It seems to be well settled that ordinarily a licensee does not, on voluntary surrender of his license, become entitled to a return of the license fee in proportion to the unexpired term, in the absence of a statutory enactment to the contrary.

15 R. C. L. 15 Sec. 76.

As we view the facts in this case, the refusal of the State Finance Department to pay the sum requested was within their power and in accordance with law.

The motion of the Attorney General to dismiss will therefore be sustained.


text:
    (No. 3482
    Lawrence Willyard, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 24, 1941.

    Haeet C. Daniels, 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 on the 22nd day of January, 1939, he was continuously employed as an attendant at the Elgin State Hospital, Elgin, Illinois, and that in the performance of his duties he was required, on October 13, 1939, to assist Dr. A. Simon, one of the staff physicians of said hospital, in the tube feeding of a patient in the ward known as the Veterans Hospital. That in the course of this feeding the patient. severely scratched the attendant, this claimant, with his finger nails between the knuckles of the third and fourth fingers of the right hand, and five days later, on the 18th of October, swelling began to manifest itself in and around the scratch. He reported the circumstance to Dr. Simon, who treated the hand with hot boric soaps and icathol ointment; that the infected hand continued to grow worse, and about October 26th, claimant .consulted Dr. Schreiner, surgeon at the Elgin Hospital, who cut open the hand and cleaned it with peroxide and disinfectants and applied dry dressings for a period of about four days; that thereafter treatment was continued with hot packs and epsom salts until about November 9th, with no improvement. Claimant then consulted Dr. Raymond F. Dowell, a private practicing physician of Elgin, who began a course of balsam-peru treatments, which continued until about November 15th, resulting in very slight improvement, and that on the latter date the condition of the injured member became worse and said Dr. Dowell then used hot boric packs and prescribed potassium iodide for internal use, and gave shots of eno-salverson, a treatment which continued until the following December 15th, when the condition appeared still worse.

Claimant further represents he then consulted Dr. Sumner L. Koch, a specialist of Chicago, Hlinois, who committed the claimant to Passavant Memorial Hospital in Chicago for a period of seven days while he administered a course of treatments of zinc-peroxide applications daily; that on December 18th said Dr. Koch also resorted to surgery, removing the poisoned flesh around said wound; that thereafter improvement began and continued until January 15, 1940, when recovery became sufficient to permit claimant to be reassigned to duty at the Elgin State Hospital. He avers Dr. Koch diagnosed the injury to be. anaerobic streptococcic infection of unusual rarity and undoubtedly caused by the nail scratch inflicted by a syphilitic patient of the Elgin State Hospital.

He submits bills from Passavant Memorial Hospital in Chicago for room, board, drugs, dressings, etc., in the sum of $57.40, a bill from Dr. Koch of Chicago, $75.00, a bill from Dr. Dowell of Elgin, $55.00, expenses incurred in transportation, etc., from Elgin to Passavant Memorial Hospital, Chicago, and return, 18 trips, $54.00.

It is, averred in the complaint that from December 1, 1939 to January 15,1940, he suffered total temporary incapacity by reason of the injury and as a consequence completely lost the usual wages paid to him in the amount of $54.60 per month, and in addition thereto he lost maintenance valued at $24.00 per month, making a total loss of income of $117.90.

He is asking for an award covering cash expenditures and expenses incurred in the amount of $241.40 and a loss of income amounting to $117.90, making a total claim of $359.30.

This court has heretofore held that the attendants at the Elgin State Hospital are under the Compensation Act. The case comes to us upon the original complaint, the report of the Department of Public Welfare, consisting of a report by Dr. Simon and Dr. Schreiner, both of Elgin State Hospital, who attended claimant, the transcript of evidence introduced on behalf of. claimant on October 16, 1940, the report of the Department of Public Welfare dated November 23, 1940, signed by Assistant Director Blanche Fritz, and respondent’s Statement, Brief and Argument, claimant having waived any brief or argument,, and from all the above the court finds it has jurisdiction under the Workmen’s Compensation Act of this claim. We further find the acts arose out of and in the course of his employment. Claimant’s immediate superior was Dr. Simon, and from his statement it appears that he had immediate notice of the scratching of claimant’s hand and administered some treatment.

From the record it conclusively appears to us that claimant’s disability was the result of an accidental injury caused by the scratch heretofore mentioned while in respondent’s employ, and that no other conclusion could be reasonably drawn from the evidence by this court.

Under the circumstances, it is the duty of the State to furnish the necessary doctor and hospital services. It is also true that an injured employee has the right to procure such services at his own expense, if he desires.

In the instant case, the claimant did undoubtedly receive a painful and distressing injury and it appears that further medical care and skill were reasonably required to cure or relieve him from the effects of such injury.

According to the testimony of the experts the claimant was suffering from a rare and severe ailment, brought about by the scratch and the syphilitic condition of the patient that scratched him.

Dr. Koch is an infection specialist at Chicago, and after examining claimant he requested him to stay at the Passavant Memorial Hospital for a few days, which he did until December 22nd. Dr. Koch’s treatment showed early results and undoubtedly gave claimant much confidence in his treatment. It appears from the record that the treatment being received by the patient from the State was not sufficient to relieve him from the effect of his injury. No objection is made by respondent to the additional medical and hospital expenses.

The claim of $57.40 for the Passavant Hospital, the sum of $55.00, the amount he owes to Dr. Dowell, and the $75.00 for services rendered by Dr. Sumner Koch, are therefore allowable.

The record shows claimant had not been in the employ of the State of Illinois for a year prior to the date of his injury, but it does show that for a year prior to the date claimant was injured it was customary for a person employed in the same capacity that claimant was employed, to receive as the first six months pay $52.50 per month, and for the second six months $54.60 per month, and in addition claimant received maintenance which was of the value of $24.00 per month. The total pay of such employee would amount to $642.60 for the year preceeding the date of claimant’s injury, plus maintenance which was received in amount of $288.00, or a total of $930.60. Dividing this amount by 52, the number of weeks in the year, it gives an average weekly wage of $17.89, and dividing this by two, pursuant to statute, makes $9.95 a week, but since this claimant was injured subsequent to July 1, 1939, the compensation rate would be increased 10% under Section 8 (1), which in this case would be $.90, or a total compensation of $9.85 per week.

There is no claim for any permanent disability or specific loss. He stopped work on October 26, 1939 and returned to work January 15, 1940, making a period of 11 weeks, 4 days, and it appears he was paid his salary in full for the balance of the month of October, or a period of six days out of 31, also in full for the entire month of November, being on the basis of $54.60 per month, which would make payment for period of non-productive time of $65.17. For the period from and including October 26, 1939 to January 15, 1940 is eleven weeks and four days, at the rate of $9.85 per week, this would amount to $113.98, during which period of time claimant was paid $65.17, leaving a balance due him of $48.81.

We, therefore, make an award payable as follows:

To Lawrence Willyard for compensation due him and expenses paid by him as aforesaid............................................ $102.81
To Lawrence Willyard for hospital bills paid by him as aforesaid... 57.40
To Lawrence Willyard for the use of Dr. Dowell................... 55.00
To Lawrence Willyard for the use of Dr. Sumner Koch............ 75.00
Making a total sum of........................................ $290.21

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 General Revenue Fund in the manner provided by the foregoing Acts.


author: Mr. Justice Tantis.

text:
    Illinois Emergency Relief Commission,
    No. 36.
    Edwin R. Perry, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed October 19, 1940.

   Advisory Opinion By

Mr. Justice Tantis.

Opinion.

Tour Statement of Facts states that “The claimant is requesting that the Illinois Emergency Relief Commission provide the necessary medical, surgical and hospital services which may be reasonably required to cure or relieve claimant from the effects of his injury and to make payment therefor from the Compensation Insurance Reserve Fund. .He does not ask for temporary total or permanent total disability.”

In his application for adjustment of claim (line 17) claim is made for ‘ ‘ compensation to the amount of any cost of having injury repaired and salary for time lost.” To authorize an award for hernia Section 8 (d-1) of the Illinois Workmen’s Compensation Act requires that it must appear that—

1. The hernia was of recent origin;
2. Its appearance was accompanied by pain;
3. That it was immediately preceded by trauma arising out of and in the course of the employment; and
4. That the hernia did not exist prior to the injury.

Section 24 of the Act provides:

“No proceedings for compensation under this Act shall be maintained — ■ unless notice of the accident has been given the employer as soon as practicable, but not later than thirty days after the accident, except in cases of hernia, in which cases notice shall be given the employer within fifteen days after the accident.”

Hernias primarily and in the great majority of cases are due to diseased or weakened condition of the abdominal walls and relaxation of the inguinal rings. Sometimes an employee’s physical condition is aggravated or accelerated and a strain will cause the hernia to appear. The mere fact that a hernia occurs while an employee is at work is not sufficient to impose a compensation liability, and there must be actual proof of an accidental injury .as in other cases. A sudden strain caused by lifting or slipping might constitute such an accident, but to impose liability under the Compensation Act, such accident must be proven under the rules of evidence. In the statement and supporting exhibits submitted by you, the only proof of an accidental strain to Edwin R. Perry in his affidavit where he says, that “in.moving the table, he twisted his right leg and at the same time felt a sharp biting pain in his lower right side. That he was forced to sit down a few minutes until the pain passed, after which he continued with the moving work. That from that day on he noticed a peculiar gnawing pain in his abdominal region which at times was accompanied by nausea. That except giving word to Neamy and Baldwin he did not notify anyone connected with the Illinois Emergency Relief Commission of this injury until the 22nd day of January, 1940, at which time he notified Mrs. Wood, Supervisor of that office.” Notice within 15 days is required. (Sec. 24, W. C. A.)

From the employee’s statement itself twenty-five days elapsed between the time Mr. Perry noticed the pain in his side until he notified his employer. Haying failed to bring himself within the requirements of the Workmen’s Compensation Act, no legal basis for allowing a claim for such alleged accident on a complaint for hernia, exists.

In addition, the statement and exhibits disclose only meager evidence in support of the other four requirements above enumerated.

The testimony of Mr. Baldwin (as shown by his affidavit) only purports to quote a narrative statement of the employee himself, which was not concurrent with the accident but was quoted to the Supervisor several days thereafter by a fellow-employee of Mr. Perry. As such that would not form a part of the res gestae and would not be competent proof. (See Frederick vs. Ind. Comm., 329 Ill. 490.)

The evidence submitted by Mr. Baldwin, the Supervisor, as indicated by his affidavit, is further that Perry made no statement to him on the day of the work in question, concerning any injury he may have suffered on that day, and that he received his first information regarding any complaint through Perry’s fellow-employee Neamy several days thereafter; that when Perry returned to work (presumably the latter part of January) the latter told him of the purported accident and that a rupture had resulted. Perry’s affidavit states that the alleged strain or accident occurred on December 28,1939, but that he did not seek medical assistance until January 9,1940.

In our opinion the statement of facts and supporting affidavits submitted by you fail to disclose the essential elements necessary to justify an award in the case of an injury resulting in hernia, bearing in mind that the Workmen’s Compensation Act requires adequate proof that—

1. The hernia was of recent origin;
2. Its appearance was accompanied by pain;
3. That it was immediately preceded by trauma arising out of and in the course of the employment; and
4. That the hernia did not exist prior to the injury.


text:
    Illinois Emergency Belief Commission,
    No. 37.
    Sigwald R. Jorgensen, Claimant, vs. Illinois Emergency Relief Commission, Respondent.

      Opinion filed December 10, 1940.

   Advisory Opinion By

Mr. Justice Tantis.

Opinion.

We have heretofore held that ease workers who have suffered accidental injuries in the course of the performance of their duties for the Illinois Emergency Belief Commission, were engaged in the work of a hazardous nature, and that injuries sustained by them arising out of and in the eourse of their employment were compensable. While the claimant herein, Sigwald B. Jorgensen, was employed in a supervisory capacity, the actual services performed by him apparently necessitated the same contacts in many instances as those of case workers. From the Statement of Facts submitted, we do not believe a distinction can properly be drawn between those cases in which payment of compensation has been approved, and the present case.

Section 8 Sub-section (a) of the Workmen’s Compensation Act of Illinois provides:

“The employer shall provide the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the injury * *

The proof here shows that the following bills were in-

curred and are unpaid:

Mercy Hospital, Champaign, Illinois........................ $58.70
Dr. John H. Gernon..................-...................... 70.00

The record further discloses that said bills are reasonable.

We therefore find that claimant is entitled to payment of said items under the provisions of the Workmen’s Compensation Act, and we are of the opinion that the Commission is properly justified in recognizing and paying said claim in the sum of $128.70. No question of compensation is raised for temporary or permanent disability. Payment of the claim in the sum of $128.70 is recommended, same to be made by the Illinois Emergency Belief Commission out of any funds held by it and allocated for such purpose.


author: Fisher, J.

text:
    (No. 3138
    Jerry DiMaria, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 9, 1941.

    Claimant, pro se.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Fisher, J.

On February 28,1937, claimant, an employee of the State of Illinois in the capacity of Janitor, Old Age Assistance Division, Department of Public Welfare, while in the course of his duties injured his right hand when a rusty nail protruding from a box he was handling pierced the palm of his hand, causing a two inch cut therein. Claimant went to the office of Dr. A. Sterbini in Springfield, Illinois, where the wound was dressed and tetanus antitoxin administered. Thereafter it was necessary that the wound be dressed almost daily until March 15, 1937, when claimant returned to work. Claimant incurred medical expenses in the sum of $35.50 on account of said injury. He has not paid Dr. Sterbini, nor has claimant been reimbursed by the State for such expenditures.

At the time of his injury claimant was married, but had no child or. children. Claimant’s salary was $100.00 per month and he was paid his regular salary from February 28th to March 15th, 1937, during which time he was incapacitated on account of the said injury.

The State of Illinois received due notice of the injury.

This Court has repeatedly held that not every State employee is under the Workmen’s Compensation Act. It is only where the employee is engaged in an employment extra-hazardous in fact, or employed in a department of the State which is engaged in an enterprise declared to be extra-hazardous by Section 3 of the Workmen’s Compensation Act of Illinois, that such employee is under the Act and legally entitled to an award for injuries sustained in the course of and arising out of his employment. It does not appear to this Court that employees of the Old Age Assistance Division of the Department of Public Welfare are engaged in employment declared extra-hazardous by Section 3 of the Workmen’s Compensation Act.

The claimant in this case was employed as' a Janitor. This Court held in LaFont vs. State, 8 C. C. R. 104, that a janitor employed in the office of the Secretary of State was not under the Workmen’s Compensation Act. In this case we followed the decision of the Supreme Court in the case of Therien vs. Industrial Commission, 351 Ill. 160. It is apparent that there is not any difference between a janitor employed in the Old Age Assistance Division of the Department of Public Welfare from a janitor employed in the office of the Secretary of State.

The claimant not being employed within the provisions-of Section 3 of the Workmen’s Compensation Act of Illinois, there is nothing this Court can do but deny the claim.

An award is hereby denied and the claim is dismissed.


text:
    (No. 3153
    Jerry DiMaria, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 9, 1941.

    Claimant, pro se.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Fisher, J.

On June 20th, 1936, claimant, an employee of the State of Illinois in the capacity of Janitor, Old Age Assistance Division, Department of Public Welfare, in the course of his duties strained the abdominal muscles of his right side in attempting to lift a five gallon bottle of water over a partition. Claimant went to the office of Dr. J. C. Walters for examination and treatment and incurred medical expenditures in the sum of $3.00 on account of said injury. Claimant has not paid Dr. Walters nor has the claimant or Dr. Walters been paid the said $3.00 by the State.

At the time of the injury claimant was married, but had no child or children. Claimant’s salary was $100.00 per month and he was paid his regular salary from June 20th, 1936, to June 27th, 1936, during which time he was incapacitated on account of said injury.

State of Illinois received due notice of the injury, but claimant’s claim was not filed with this Court until November 26th, 1937.

If we were to hold that the claimant was an employee under the Workmen’s Compensation Act, he would be barred from having his claim considered for the reason that more than one year elapsed from the date of his injury until the date of the filing of his claim and he also received full compensation for the week he was incapacitated.

In a previous opinion, in considering a claim filed by the same claimant, while employed in the same capacity, we held that he was not employed within the provisions of Section 3 of the Workmen’s Compensation Act of Illinois, and for the reasons stated therein we must also deny this claim.

Award is hereby denied and the claim is dismissed.


author: Chief Justice Damron

text:
    (No. 3398
    Catherine Henderson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 9, 1941.

    Beasley & Zulley, for claimant.

      George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Catherine Henderson on the 20th day of July, 1939, filed her complaint in this Court alleging that she was injured on the 16th day of January, 1939, while employed by the respondent as an attendant at the State Hospital for the Insane at Peoria, Illinois; that in attempting to recapture one of the escaping inmates, she stepped into a hole in the street with her right foot, thereby injuring it to such an extent that she became and remained incapacitated from work; that thereafter she was removed to Cottage IB in a truck and was later hospitalized where she remained for two weeks under treatment. She says she was totally disabled from work for five months, except ten days for which she received full wages for part time work; that she received in wages, $52.50 per month, plus board, room, and laundry. She states that she has complied with the statute in reference to notice and that on June 21, 1939, through her attorneys, she made a demand upon A. L. Bowen, superintendent of the State Hospital, for compensation under the provisions of the Illinois Workmen’s Compensation Act and received in reply a letter from Dr. A. L. Bowen, aforesaid, acknowledging receipt of demand for compensation and stating that claimant might take her claim before the Court of Claims. Copies of said letters were attached to said complaint as Claimant’s Exhibits “A” and “B” respectively. Award in the amount of $517.50 was asked. The complaint consists of six paragraphs.

On August 20, 1940, the claimant, through her attorneys, filed a motion for leave to file an amendment to the complaint which motion was allowed by the Court, and on the 23rd day of August, 1940, a purported amendment was filed by simply adding a paragraph numbered 7. This paragraph stated that on October 27, 1938, claimant sustained injuries to her right leg and ankle by stepping in a break in the concrete floor of the dining room at the Peoria State Hospital for Insane at. Peoria, Illinois, which she was entering for lunch; that by reason of said injury, the claimant was confined to the hospital of the respondent and was incapacitated for work thereafter until January 8, 1939, when the claimant returned to work.

From the testimony in the record, it appears that claimant was 38 years of age, and resided in East St. Louis, Illinois; that on January 17, 1939, she was employed in State Hospital for Insane at Peoria, Illinois, as a nurse in IB Cottage which was occupied by insane patients; that on last mentioned date, a telephone call came to said Cottage requesting that someone be sent after an escaping inmate, and she was ordered to capture the inmate. As she was pursuing this patient along the sidewalk of the institution grounds, she was compelled to go around a parked truck in order to pursue said patient. The ground was covered with snow and as she walked she stepped into a hole and fell down. She was unable to get up, having turned her ankle and otherwise injured her right leg. Claimant was taken to the institution hospital where an X-ray film was made of the right ankle. This film revealed no fracture of any bones. The injury was examined by Dr. I. L. Turow on her admission to the hospital, he placing a plaster-of-Paris cast with a walking caliper to hasten recovery. Diagnosis — sprain of ligaments of the right ankle joint.

The record further shows that claimant sustained an injury to the same ankle on October 27, 1938, but sought no medical aid until the 6th day of December, 1938, at which time she reported to Dr. I. L. Turow who examined the ankle and made a diagnosis of bursitis due to an injury sustained some time before. He placed a bandage on the ankle and had her put to bed in the hospital where she remained off duty for 34 days. She made no claim at that time for compensation.

The record further discloses that no claim for compensation was made to anyone regarding the injury of October 27, 1938, until she filed her amended complaint on the 23rd of August, 1940.

No proceeding for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident. (Workmen’s Compensation Act, Section 24.)

Making a claim for compensation within the statutory period is jurisdictional and a condition precedent to a right to maintain a proceeding under the Compensation Act. (Louis vs. Industrial Comm, et al, 357 Ill., 309; Crabtree vs. State of Ill., 7 C. C. R., P. 207; Dennison vs. State of Ill., 9 C. C. R., P. 82; Gardner vs. State of Ill., 9 C. C. R., P. 84.)

The burden of proof was on the claimant to prove by a preponderance of the evidence that notice of the accident and demand for compensation complied with Section 24 of the Workmen’s Compensation Act. Having failed to do this, this claim for injury sustained on October 27, 1938, must be dismissed for lack of proper demand.

Inasmuch as we are dismissing this claim for the above reason, it is unnecessary for us to determine whether the claimant was injured “in the course of” her employment.

It appears that at the time of the accident of January 17, 1939, the claimant and respondent were operating under the terms and provisions of Workmen’s Compensation Act, and the claimant is therefore entitled to compensation under the terms and provisions of said Act, she having complied with Section 24 of said Act in reference to notice and demand.

The claimant states she is entitled to between one-third and one-fourth permanent partial loss of the use of her right foot.

Dr. Campbell, her treating physician, states (P. 42) that the only remaining symptoms were pain and tenderness, and again on page 41 that “motion is sufficient and muscular power sufficient, ’ ’ and further stated on page 41 1 She has an abundance of motion, an abundance of muscular control for a good useful foot.” He also stated on page 41 that he felt results, as far as motion and restoration of muscle tone were concerned, were very satisfactory. Dr. C. L. Vanatta, who examined the claimant on behalf of the State, found that the claimant had all motion as to extension, flexion, abduction, adduction, and circumduction or rotation, and that such motions are both voluntary and involuntary or active and passive, and gave as his opinion that claimant had practically recovered. He also found that claimant’s lower limbs were inclined to swell and the left slightly more than the right.

It would seem therefore that in view of all the testimony in the record that the claimant has fully recovered, and that she has no permanent loss of use of her right ankle or foot due to said injury.

The following awards are computed on minimum compensation at Eight Dollars and Eighty-three Cents ($8.83) weekly. The Court is taking into consideration the fact that the Department of Public Welfare considers maintenance to be of the value of Twenty-four Dollars ($24.00) per month which will make claimant’s annual salary amount to Nine Hundred Eighteen Dollars ($918.00), which sum divided by fifty-two (52) will give an average weekly wage of Seventeen Dollars and Sixty-five Cents ($17.65), or a compensation rate of Eight Dollars and Eighty-three Cents ($8.83).

The record shows that she suffered temporary total disability commencing on January 17, 1939 to the 15th day of April, 1939, a period of twelve and five-sevenths (12 5/7) weeks for which she is entitled to the sum of One Hundred Twelve Dollars and Twenty-six Cents ($112.26). She is also entitled to temporary total disability from April 24, 1939 to August 8,1939, this being a period of fifteen and two-sevenths (15 2/7) weeks amounting to the sum of One Hundred Thirty-four Dollars and Ninety-seven Cents ($134.97). She is also entitled to the sum of Sixty-seven Dollars ($67.00) for medical attention rendered her by Dr. Campbell, for which she became liable, making a total due her of Three Hundred Fourteen Dollars and Twenty-three Cents ($314.23), from which must be deducted the sum of Fifty-two Dollars and Fifty Cents ($52.50), which was paid said claimant by Respondent for non-productive time after said injury was sustained, leaving a balance due said claimant, including her medical expenses, of Two Hundred Sixty-one Dollars and Seventy-three Cents ($261.73).

Award is therefore hereby entered in favor of claimant for the sum of Two Hundred Sixty-one Dollars and Seventy-three Cents ($261.73.).

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


text:
    (No. 2319
    Lawrence F. Rau, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 9, 1941.

      Rehearing denied November 13, 1941.

    Markman, Donovan & Sullivan, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Claimant’s petition in this case consists of two counts. The first count alleges that claimant is the owner of a tract of land consisting of approximately 16.44 acres; that he specialized in growing onion plants, and that this particular land is particularly adapted for that purpose; that the average yield per pound of seed planted is nine bushels; that in 1933 he planted 1,000 pounds of seed, and avers from that he would ordinarily harvest 9,000 bushels of onion sets. '

Paragraph 3 averred that this tract of land -was provided with a system of adequate drains; that his system was connected with the Village system at a point a short distance south of the B. & 0. Railroad tracks and at Halsted Street; that the main of the Village storm sewer system extends north up along Halsted and empties into the Calumet River, hut it is not averred by what right, title or authority claimant’s system was connected with the Village system.

In paragraph 4 it is averred that in October, 1932, the Department of Public Works and Buildings, Division of Highways, undertook the widening and paving of Halsted Street, a section of which extended from the Calumet River south and past claimant’s land; that in the construction work necessary for improving Halsted Street it became necessary for the Highway Department to fill in and grade the widened roadway; that prior thereto there existed a ditch along the east side of Halsted Street which provided a natural drainage for the adjoining land; that when this ditch was filled and the street graded, the drainage for the adjoining land was destroyed, and thereafter the storm water flowed from the adjoining land and would accumulate along the highway as widened, and the Highway Department connected two catch-basins on the east side of the street about 275 yards apart north of the railroad tracks; that these catchbasins were not installed until after the street had been paved, and these catchbasins were connected with the main sewer which drained claimant’s land. It is then averred that the engineers of the State Highway Department at the time of connecting the catchbasins had made observations and inquiry regarding this drainage system and learned that the systems and the main sewer were not adequate for its purpose and were in bad condition; that the sewer was so ancient that scarcely anyone knew of its history, but notwithstanding the investigation these highway engineers made connection with the catchbasins and thereby caused all storm water from the adjoining farm land to flow into the main sewer, and that the drainage of the storm water caused loose soil to be washed into the main sewer clogging that sewer at a point between claimant’s land and a point south of 134th Street, and at the time of widening Halsted Street the State Highway Department made other connections for drainage waters from the widened highway extending south beyond claimant’s land, and that all these inlets and connections caused the drainage of water to flow into the main sewer which theretofore had drained in another direction and thereby overloaded the main sewer.

The averments contained in this paragraph are very significant in this, that it is stated that the engineers of the Highway Department had learned that- the sewage system and main sewer were never adequate for its purpose, and had always been in a bad condition. The extent of this inadequacy was probably unknown to both the claimant and the Highway Department. This is particularly true in view of remaining averments contained in the petition in so far as the facts are concerned.

Paragraph 5 avers that the Highway Department from observation, inquiry and investigation knew the claimant’s land was drained by the village drainage system and knew that the system in use was not adequate for the purpose of making connections therewith for the drainage of adjoining farm land which theretofore had been drained in another direction, and that in connecting additional catchbasins and inlets the sewage system would be overloaded and would be an interference with claimant’s right to a free, proper and adequate drainage of his land.

Paragraph 6 states that in April, 1933, a heavy rain occurred which resulted in the flooding of land and that claimant reported this flood condition to the Village and that the Village made an investigation and found-the main sewer was clogged and this was reported by the village engineer to the supervising engineer of the Division of Highways.

Paragraph 7 alleges that on May 20, 1933, to May 25, 1933, claimant planted on his land 1,000 pounds of seed and thereafter the seeds grew and reached the height of from four, to six inches, showing uniform growth over the entire tract of land and gave promise of producing a better' yield than for two years prior thereto.

In paragraph 8 it is averred that on July 2,1933, a heavy rain flooded this tract and water accumulated and remained on the land for about a week; that claimant complained to the Village authorities and that upon investigation the engineer of the Village and the plumber of the Village discovered the main sewer of said Village system was stopped between a point south of 134th Street and a point south of the B. & O. Railroad tracks, and this stoppage was caused by sand and dirt which had clogged the main sewer and which had entered the sewer through the catchbasins and connections aforesaid, but in view of the averments contained in paragraph 4 of the complaint that the sewer had been in bad condition before that time, we cannot determine how much or to what extent draining additional sewage into the existing system had brought about the stoppage.

In paragraph 9 it is stated that the overburdening of the sewer main, as hereinbefore stated, caused claimant’s land to be flooded for a week or more, seriously damaging the onion crop; that the main sewer was clogged with loose dirt from the adjoining land and this prevented claimant’s land from being drained and the flood waters remained in the land for a week or more, and that a large area of the growing plants was completely submerged for that period of time, which seriously damaged their growth; that after the water had drained the onion plants which had been flooded died, and there was harvested from said tract a total yield of 2,313 bushels of onion sets; that claimant’s loss was 6,678 bushels, or 267,480 pounds of onion sets, being a loss in the sum of $18,000.00.

Thereafter this Court permitted an amendment to the addenda clause increasing the damages.

In paragraph 10 it is charged that the drainage system of this land had adequately drained the land which was connected with the main sewer of the Village drainage system prior to the interference of the Highway Department and other averments along this line are also contained in paragraph 10, and that the Highway Department of the State of Illinois had no right to construct a highway and interfere with the claimant’s rights without making just compensation and that no compensation had been paid claimant, and that the State is bound, pursuant to the provisions of Section 13 of Article 2 of the Constitution, to pay claimant compensation damages as resulted to claimant by reason of the construction of the drainage system put in by the State.

Count 2 re-alleged paragraphs 1, 2, 3, and 4 of Count 1 of the complaint, and such paragraphs are made paragraphs 1, 2, 3 and 4 of Count 2.

Paragraph 5 of Count 2 alleges that in view of the knowledge acquired by inquiry and observation of the engineers of the State Highway Department to the effect that the drainage system to which the aforesaid connections were made was ancient, inadequate and in a bad condition; that the State Highway Department was guilty of gross negligence and that the result of washing of loose dirt into the sewer main from the land which theretofore was turned in another direction, was an unlawful interference with claimant’s property rights.

Paragraphs 6, 7, 8, 9, 10, 11 and 12 of Count 1 are re-alleged and made correspondingly paragraphs 6, 7, 8, 9, 10, 11 and 12 of Count 2. The allegations contained in paragraph 5 of Count 2 apply with equal force to the averments con-" tained in paragraph 4 of Count 1, and we cannot see or determine the extent of the filling in of the sewer and are at a loss to understand why the State would be responsible in putting other waters into a sewer that was in bad condition and probably most closed to the passage of sewer water at the time of the heavy rains complained of.

The averments contained in Count 1 in effect constitute negligent acts upon the agents of the State Highway Department. The averments contained in paragraph 5 of Count 2 directly charges that the agents of the Highway Department, in view of their knowledge of the facts, constituted gross negligence. The Attorney General has made a motion to dismiss this suit on the ground that it is sought to recover damages caused by alleged negligence of employees of respondent in constructing and maintaining a highway and therefore respondent, or the State, is not liable for such damage so caused.

Both sides have extensively argued this proposition. It is argued by the Attorney General that the State cannot be sued in an action at law for damages caused by the alleged negligence of its agents and servants. Much evidence was taken, and this evidence is to be interpreted along with the law, and it is said by the Attorney General that the evidence was taken for the purpose of being considered by the court for the reason that possibly the questions of law arising on the complaint may be more easily and clearly understood.

It is charged in paragraph 11 of the complaint that the Attorney for claimant made his claim to the Highway Department for compensation and the secretary of this department told him to file his claim with this court. This, of course, could not, as a matter of law, give this court any jurisdiction that it did not have without such direction to claimant’s counsel. Such direction does not have the force and effect of a legislative action giving this court jurisdiction.

We have gone over the evidence, and it does not conclusively appear that prior to the time of this improvement a ditch existed on the east side of the road adjoining claimant’s property which provided a satisfactory drainage to his land and that the State filled in said ditch causing water to accumulate along the highway. As a matter of fact, there is strong and convincing proof that a ditch did not exist on the east side of the road and consequently the drainage conditions were not interfered with by the State’s construction of this improvement, and the evidence bears out the averments in the complaint that the sewer never was adequate for its purposes and had been in bad condition a long time prior to the time that the State constructed this improvement, and it is exceedingly doubtful that the sewer was disturbed by the State’s construction in any way, and there is much in the evidence to lead one to conclude that the sewer in question was badly clogged before the manholes referred to in the complaint were constructed; but as we view it, the questions raised here are questions of law and we merely make reference to the proof to show that even though this case was to be decided upon the facts claimant alleges, damages were at least very uncertain.

It has frequently been the holding of this court that in the construction and maintenance of its roads, the State acts in a governmental capacity and in the exercise of such governmental functions it does not become liable in actions of tort by reason of the malfeasance, misfeasance or negligence of its officers or agents in the absence of a Statute creating such liability. The first of these cases was that of Morrissey vs. State, 2 C. C. R. 254.

This case for claimant was exhaustively presented by eminent counsel, and has been followed since that time by this court.

The Supreme Court of Illinois, in the case of Minear vs. State Board of Agriculture, 259 Ill. 549, announced a similar rule, and other cases of the Supreme and Appellate Courts of this State are in harmony.

The General Assembly of this State has never enacted a law making the State liable for damages caused by negligent construction of a public road, and this court has no power to make an award for such damages in the absence of such a statute.

Award denied. Case dismissed.


author: Per Curiam:

text:
    (No. 2743
    Walter F. Sass, Administrator of the Estate of John Sass, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 9, 1941.

      Rehearing denied November 13, 1941.

    Lawler, Walsh & Bernstein, for claimant.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Per Curiam:

. Claimants, Erwin Sass, Walter Sass, and John Sass, co-partners, filed their complaint in this court on the 23rd day of October, 1935, alleging that they had suffered damage in excess of Two Thousand Dollars ($2,000.00) for loss to growing crops caused by standing water.due, as they say, from an insufficient drain constructed by the Department of Public Works and Buildings in widening the pavement on Harlem Avenue adjacent to their land described as:

The South 852.3 feet of' the West 1548.8 feet N. I. B. L. of the South Half (s%) of Section Eighteen (18), Township Forty (40) North, Range Thirteen (13), East of the Third Principal Meridian, in Cook County, Illinois, consisting of 24 acres more or less located at the North East corner of the intersection of Harlem Avenue and Forest Drive Road, in Cook County, Illinois.

Evidence was taken, briefs and arguments were filed, and on the 9th day of April, 1941, this court rendered an opinion delivered by Mr. Justice Linscott denying liability on the grounds that a claim of this nature must be based on Article 2, Section 13 of the Constitution of 1870, and further stating “There is no evidence in the record to support this, and for this reason the claim must be denied.” In this opinion the claimants were given the right to amend the complaint and file additional testimony within 30 days in accordance with the rules of this court.

Thereafter an amended complaint was filed setting forth that John Sass was the owner of the property in question; that same had been damaged by the respondent as the result of the construction of the highway improvement mentioned in the original complaint; and that such damage was in violation of the provisions of the Constitution and asking for an award in the amount of Two. Thousand Dollars ($2,000.00).

Additional testimony was taken and filed, and on May 13,1941, the death of the claimant, John Sass, was suggested, and upon motion of the claimants, leave was given to substitute for John Sass, deceased, Walter F. Sass, Administrator of the estate of John Sass, deceased, and to dismiss as to the other claimants.

The additional testimony taken and filed, as aforesaid, was a repetition more or less of the evidence which had been taken under the original complaint, except that an effort was made to connect up the purported damage as damages to the land itself.

No one was called as witnesses except Erwin Sass and Walter Sass, sons of the deceased claimant, John Sass, in support of the amended complaint. Hpon cross-examination of Walter F. Sass on page 8, line 10, the following question was asked: Q. Isn’t it a fact the real value you were putting-on your land is the depreciation in crop production? A. That is the idea. With this land flooded, it was not good for any kind of a crop. Q. That lasted one year? A. Yes, it lasted one year. Q. The summer of 1935? A. Yes.

Again on cross-examination of Erwin A. Sass on page 12, the last line, the following question was asked: Q. Now, isn’t it a fact, Mr. Sass, that you are making your valuation of land on the amount of loss of crop for that year? A. That is right.

This court, in many instances, has held that the State is not liable for damages to crops resulting from the negligent or wrongful acts or conduct on the part of the Division of Highways in failing to provide adequate drainage or interfering with an existing system of drainage, in the maintenance and construction of improving hard-surfaced highways. The State acts in its sovereign capacity in carrying out this governmental function and cannot be held liable for the negligence of its officers or agents.

Morrissey vs. State, 2 C. C. R., 254;
Dunning vs. State, 5 C. C. R., 232;
Highland vs. State, 6 C. C. R., 384;
Bucholz, Adm. vs. State, 7 C. C. R., 241;
Wolf vs. State, 8 C. C. R., 144;
Nierstheimer vs. State (No. 1812) rendered January Term.

While the flooding of the above described land, no doubt, resulted in great hardship and misfortune to claimant, there is no legal grounds upon which the State could be held to respond in damages.

The Supreme Court of Illinois in the case of Minear vs. State Board of Agriculture, 259 Ill., 549, announced a similar rule as announced in the Morrissey vs. State (supra) and other cases of the Supreme and Appellate Courts of this State are in harmony.

This case, in some respects, is similar to that of Lawrence F. Rau vs. State of Illinois, No. 2319, in which opinion was delivered at this term of Court. In this case it was said “The General Assembly of this State has never enacted a law making the State liable for damages caused by negligent construction of a public road, and this court has no power to make an award in the absence of such a statute.” The Constitution of 1870 only empowers this court to award the claimant damages for the taking or damaging of real property.

After a careful consideration of all the testimony, thq court is of the opinion that the claimant has failed to prove, as required by law, that respondent is liable in damages under the.amended complaint. There being no liability on the part of the State under the facts, the motion of the Attorney General to dismiss must be sustained.

Award denied. Case dismissed.