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    Sarah Mandel v. State of Illinois.

      Opinion filed September 28, 1906.

    License Fee — Adams & Tillotson v. State ante followed. This claim is governed by the decision of the Court in Adams & Tillotson v. State, supra.

    F. L. Harpham and C. W. Greenfield, for Claimant.

      W. H. Stead, Attorney General, for State.
   Like in the ease of Adams & Tillotson v. The State, supra, claimant in this case, Sarah Mandel, bases her claim on the payment of a license fee of two hundred dollars ($200.00) paid to Honorable James A. Rose, Secretary of State, in 1901, to run an employment agency under the Act of 1899 (Session Laws of 1899, pp. 268-271), declared unconstitutional by the Supreme Court April 24, 1903. 202 Ill., 389.

The ease is submitted on statement of claim in due form, pleas amounting to the general issue, deposition of claimant and stipulations that the $200.00 paid by claimant to the Secretary of State was by him paid into the State treasury; and that George W. Geary, alluded to in the deposition, was the duly appointed, qualified and acting Superintendent of Private Employment Agencies at the time the money was paid.

The uncontradicted evidence in the case establishes that prior to November 1,1901, claimant was running an employment agency in the City of Chicago; that George W. Geary was then the Superintendent of Agencies charged with the supposed legal duty of enforcing said Act; that in pursuance of his said supposed authority and duty under the Act he (and the Secretary of State as well) demanded again and again, both personally and by his subordinate officers, payment of the said license fee, under repeated threats of arrest, prosecution and the forcible closing of her place of business; and that, induced solely by fear that such State official would put his said threats into execution, claimant finally paid the license fee of $200.00, now in the State treasury, and received her license.

In view of what we have said in Adams & Tillotson, supra, it is deemed unnecessary to repeat what we there said, nor to again cite the authorities there cited; we deem it sufficient to say that we are of the opinion that claimant has clearly established her contention that the illegal license fee was paid into the State treasury under legal compulsion and duress, and we accordingly award her damages in the sum of two hundred dollars ($200.00).


source: Caselaw Access Project

license: Public Domain

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    Mary A. Riley, Administratrix of the Estate of Jesse L. Allen, Deceased, v. State of Illinois.

      Opinion filed September 28, 1906.

    Non-liability of State — Henke v. State ante followed. The law as announced in Henke v. State, supra, applies to this claim.
    ¥m, T. Wilson, for Claimant.
    W. H. Stead, Attorney General, for State.
   In this ease Mary A. Eiley, as administratrix of the estate of Jesse L. Allen, deceased, files her claim for damages for personal injuries received by the said Jesse L. Allen, at the Illinois Central Hospital for the Insane at Jacksonville, Illinois, from which injuries, it is alleged, the said Allen died.

The statement in the case sets out that the said Allen entered the employ of the Board of Trustees of the said institution, as a cook, about February 1, 1905; that on February 9th, he was ordered by the head cook of the institution to run a certain elevator; that in attempting to run the said elevator, he became entangled in the ropes 'of the elevator and as a result he was injured to such an extent that death subsequently ensued.

No evidence was taken and filed in this case as required by the statutes, but the Attorney General, instead of moving to strike the case from the files for want of prosecution and failure to comply with the statute and the rules of this Court, as he might have done, has seen fit to enter a demurrer to the declaration.

The ground of demurrer, namely, that the facts as alleged in the declaration do not show any liability on the part of the State, is well taken.

In the opinion in the case of Henke v. State, filed of even date herewith, this question is discussed at length, and the authorities extensively cited.

It is there held, as this Court has uniformly held since its inception as a Commission, and as the Courts of New York, Massachusetts and our own State, and the Federal Courts likewise, have held, that the State is not liable for the misfeasance, torts, wrongs, negligence or omissions of duty of its officers or agents, for it does not undertake to guarantee to any persons the fidelity of those it employs.

Demurrer in this case is therefore sustained and claim rejected.


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    Lucius M. Rood v. State of Illinois.

      Opinion filed September 28, 1906.

    1. Non-liability op State — what does not constitute claim against the State. Claimant, while employed at his duties in Lincoln Park, and without fault on his part, was struck upon the head with a bale of straw thrown from a barn by a co-employee. Held, that the State is not liable.
    2. Respondeat Supebiob — doctrine of not applicable to State. The doctrine of respondeat superior does not apply to the State, and the State is not liable for the misfeasance, torts, wrongs, negligence or omissions of duty of its officers or agents. (Henlce v. State, supra, cited by Court.)
   The declaration in this case alleges that Lucius M. Rood, while employed at Lincoln Park, in the City of Chicago, Illinois, on the 21st day of June, A. D. 1903, was severely injured by being struck on the head by a bale of straw, which was thrown from the second story of a barn located in said park; that the said Lucius M. Bood was at the time and for some time previous thereto employed 'by the commissioners of said Lincoln Park, and that while in the performance of his duty, without fault on his part, was struck as aforesaid; that the said bale of straw was thrown from the said barn by a co-employee of said claimant, by the name of John Anderson; and that in consequence of said! injuries the said Lucius M. Bood has been confined to his bed ever since, has been unable to work and has suffered permanent disabilities.

To the said declaration the Attorney General has filed a demurrer.

As this Court has uniformly held since its organization that the State is not liable for the misfeasance, torts, wrongs, negligence or omissions of duty of its officers or agents, and that it does not undertake to guarantee to any persons the fidelity of those it employs (see Henke v. State, filed of even date herewith), the demurrer must be sustained.

Inasmuch, however, as we recognize that this is a case appealing strongly to sympathy, the sustaining of the demurrer is hereby declared to be without prejudice to the said claimant, and the rejection of the claim is not to conclude the claimant herein or to bar his further presentation of this claim to the legislature.


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    Dr. C. Pruyn Stringfield v. State of Illinois.

      Opinion filed September 28, 1906.

      Pbactice — rules of — failure to observe. Where claimant has not filed either proofs, abstracts or briefs, as required by the rules of the Court of Claims, the Court will dismiss the claim upon motion of the Attorney General.
    Alonzo Hoff, for Claimant.
    W. H. Stead, Attorney General, for State.
   The claimant, Dr. C. Pruyn Stringfield, on the 6th day of April, 1903, filed his claim in this Court for compensation for medical and surgical services rendered to one Sergeant Henry Becker, on accounut of injuries received by said Becker while he was in the service of the State, and one of and acting with a detachment of Troop A of Illinois Cavalry, and while said Troop was detailed as escort to His Boyal Highness, Prince Henry of Prussia, in Chicago, on the 5th day of March, A. D. 1903.

The amount claimed is $350.00.

No steps having been taken by the complainant to comply with the rules of this Court, or the requirements of the statute in regard to the filing of proofs, abstracts and arguments, on the 13th day of November, A. D. 1905, a motion was made by the Attorney General to dismiss this case for want of prosecution, which motion is allowed and the cause dismissed accordingly.


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    The Samaritan Hospital v. State of Illinois.

      Opinion filed September 28, 1906.

      Practice — rules of — failure to observe. Failure on the part of claimant to file proofs, abstracts and briefs, as required by the rules, will support a motion by the Attorney General to dismiss.
    Alonzo Hoff, for Claimant.

      W. H. Stead, Attorney General, for State.
   The claimant, The Samaritan Hospital, filed its claim in this Court on the 20th day of April, 1903.

The claim is for $180.00 for nursing, and treatment of Sergeant Henry Becker, a member of the Illinois National Guard, while recovering from the effects of an injury received during the entertainment of Prince Henry of Prussia, in Chicago, on March 5,1903.

No proofs, abstracts or arguments, having been filed in this Court by the claimant, the Attorney General, on the 13th day of November, 1905, moved the dismissal of this case for want of prosecution, which motion is therefore allowed and the cause dismissed.


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    Albert W. Leidel v. State of Illinois.

      Opinion filed November 16, 1906.

    1. Non-liability of State — when liability does not attach. Claimant was injured in the stone guarry while employed as a keeper at the Southern Illinois Penitentiary. Held, that no liability against the State attached.
    2. Respondeat Superior — doctrine of not applicable to State The doctrine of respondeat superior does not apply to the State, and the State is,not liable for the negligence of its officers, employees or agents.
    Northcott, Hoff and Orr, for Claimant.
    W. H. Stead, Attorney General, for State.
   This is a claim for personal injuries received by Albert W. Leidel as a result of a caving in of some dirt in a rock quarry while claimant was employed as a keeper in the Southern Illinois Penitentiary at Chester, Illinois.

Claimant had for a number of years been employed as keeper in charge of convicts and on the 20th. day of February, A. D. 1905, he had' a gang at work under him, clearing away the dirt over a ledge of rock and he was at work by order of the superintendent of the stone department in said penitentiary. While directing his men and while in the general line of his duty, a bank of dirt caved in on him and resulted in very serious personal injuries. The evidence shows that the claimant’s injuries are serious and permanent.

It is contended by the claimant that the superintendent of the stone department was negligent in sending Albert W. Leidel, as keeper, with a gang of four or five persons, to work in clearing off said dirt in the dangerous condition it was in and that this negligence on the part of the superintendent of the stone department, who was an agent of the State, makes the State liable for the injuries of said claimant.

It is further contended in this case that under the various Acts establishing the present Court of Claims of this State, jurisdiction was given this Court to allow claims of this nature and thus hold the State liable for the negligence and misfeasance of its officers and agents. And this, it is claimed, is given under section three of the Act of 1903, which recites that “It shall be the duty of said Court to hear and determine * * * all other unadjusted claims of whatsoever nature or character against the State of Illinois.”

The law governing this case was so fully discussed in the case of Henry Henke v. State of Illinois, decided by this Court on September 29, 1906, that it is not necessary here to cite any authorities in support of the proposition, that the State is not liable for the acts or misconduct of its agents as contended for .in such matters. And this decision is also supported by a long line of previous decisions by courts of this and other slates. This being the law governing this case, the claim is necessarily rejected, but, inasmuch as we recognize that it is a case appealing strongly to sympathy, the rejection of the claim is made without prejudice and it is expressly directed that such rejection does not conclude the claimant herein so as to bar his further presentation of this claim to a subsequent legislature.


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    Samuel B. Brierly v. State of Illinois.

      Opinion filed December 29, 1906.

    License Pee — paid under protest — may be recovered — when. Illegal fees paid into the State treasury under protest, by compulsion or duress may be recovered.
    Louis T. Orr, for Claimant.
    W. H. Stead, Attorney- General, for State.
   Samuel B. Brierly is claimant herein against the State of Illinois for the sum of four hundred ($400.00) dollars, being the aggregate -sum of two license fees of two hundred ($200.00) dollars each, paid by claimant on or about August 24, 1899, and on April 8,1902, respectively, to Hon. J ames A. Bose, Secretary of State, for licenses issued to claimant to operate a “private employment agency” in the city of Chicago, under the Act of the General Assembly pertaining thereto, passed April 11,1899, and going into effect July 1,1899 (Session Laws 1899, pp. 268-271). Said Act being held unconstitutional by the Supreme Court April 24,1903, in the ease of Mathews v. The People, 202 Ill., 389.

The facts in this case are substantially like those in the ease of J. B. Hayden & Co. v. The State, this day decided by us. (See opinion therein.) And in view of what we have therein held and announced, we deem it unnecessary to further set forth or discuss either the facts of the case, or the law applicable thereto. Suffice to say that, as in that case, we think in this, that claimant paid such illegal fees to the State, under what amounts in law to compulsion and duress, and under protest. "We, therefore accordingly award claimant, Samuel B. Brierly, the sum of four hundred ($400.00) dollars.


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    Charles W. Dunham v. State of Illinois.

      Opinion filed December 29, 1906.

    License Pee — when may he recovered. Claimant paid a fee to obtain a license to operate a private employment agency under the Act of April 11, 1899 (Session Laws 1899, pp. 268-271), under compulsion and duress. The Supreme Court of this State having declared said Act unconstitutional {Mathews v. People, 202 Ill., 389), claimant is entitled to a return of the fee so paid.
    Louis T. Orr, for Claimant.
    W. H. Stead, Attorney General, for State.
   Charles W. Dunham filed a claim herein against the State of Illinois for the sum of two hundred ($200.00) dollars, being the amount of a license fee paid by claimant, on or about September 11, 1902, to Honorable James A. Rose, Secretary of State, for a license to operate, in the city of Chicago, a “private employment agency” under the Act of the General Assembly pertaining thereto, passed April 11, 1899, and going into force July 1, 1899, (Session Laws, 1899, pp. 268-271), said Act being held unconstitutional by the Supreme Court April 24,1903, in the case of Mathews v. The People, 202 Ill., 389.

The facts in this case are, in our 'opinion, in no essential particular different from those in the two cases this day decided by us, entitled respectively, J. B. Hayden & Co. v. The State, and Briefly v. The State; in both of which, and particularly the first named, opinions of some length have been filed.

As in.those oases, we are of the opinion that the evidence shows the payment of such illegal license fee to the State under what amounts in law to compulsion and duress, and under protest, and that claimant is rightfully entitled to an award for the amount so paid and herein claimed.

We, therefore, accordingly award the claimant herein, Charles W. Dunham, the sum of two hundred ($200.00) dollars.


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    The Smith-Hippen Co. v. State of Illinois.

      Opinion filed December 29, 1906.

    1. State — Contracts—appropriation must be available for. In order for a State board to make a valid contract for the performance of services, it must have an appropriation available to pay for the same.
    2. Recovery — when none may be had. Claimant did certain dredging in an outlet of Spring Lake, in Tazewell County, which lake and its outlet were under the control of the Canal Commissioners. The commissioners did not authorize the work. One of its members advised claimant that the board had no appropriation available, the appropriation by the General Assembly having been held invalid (Burke v. Snively, 208 Ill., 328). Held, that no liability attached against the State to pay for the dredging.
    3. Spring Lake — navigable when. Spring Lake was navigable and had a natural outlet into the Illinois River until 1877, when the outlet was obstructed by the State by the construction of Copperas Creek Lock. This artificial outlet having become obstructed was dredged by the Canal Commissioners in 1890 and 1895, by authority of the General Assembly.
    4. Jurisdiction — class of claims Court may allow. The Court of Claims is vested with authority to allow legal claims only.
    Wm. A. Potts, for Claimant.
    W. H. Stead, Attorney General, for State.
   There is practically no controversy about the facts in this case. Spring Lake is a lake in Tazewell County that, prior to 1877, was naturally navigable and had a natural and navigable outlet into the Illinois River. In 1877 this natural outlet was obstructed and closed by the construction by the State of Copperas Creek Lock, under the authority of an Act of the General Assembly in force July 1,1877, the State, under the direction of its Canal Commissioners, constructed an artificial outlet from the river to such lake. In 1890 such artificial outlet becoming obstructed by deposit from the river, was dredged out by the Canal Commissioners, by direction of resolution of the General Assembly; and again in 1895, by like authority. In 1904 claimants, grain dealers and the owner of an elevator on the banks of such lake, and dependant, in the conduct of their business, on the transportation facilities afforded by such lake, its outlet and the river, and others similarly situated, called the attention of Mr. Snively, the President of the Canal Commissioners, to the fact that said outlet was again obstructed and closed to navigation by deposit from the river; and requested such board to remove such obstruction and restore its navigability. The matter was not brought to the attention of the board, as a board, at least; and the board took no action whatever in regard to the matter. But Mr. Snively, President of the board, advised claimants that the board had no money appropriated, or available for the purpose; the appropriations made by the General Assembly available for such purposes having been held invalid by the courts (see Burke v. Snively, 208 Ill., 328); that if the commissioners had the funds they would do the work; “that they (claimants) would have to try and get some other dredge boat to clean out this obstruction and take our (claimants’) chances of collecting it from the State,” claimant having no correspondence or conversation with the board or any of the other commissioners, and only that single conversation with Mr. Snively. Mr. Unlund of claimant’s company testifying: “Q. In that conversation, then, Mr. Snively did not promise, on behalf of the Canal Commissioners, or in behalf of the State, that the Canal Commissioners, or the State would be responsible for it, is that right? A. No sir; I do not think that he promised to do that; only suggested that we should bring in our claim to the State (Court of Claims) and thought it would be allowed. He made no agreement with us that the Canal Commissioners would pay it.” Under such condition claimants procured the dredging of such outlet, at a cost to them of $2,572.40, a reasonable sum for the service, so far as shown by the evidence, and the amount for which claim is now made; claim therefore being made in due form.

The question presented is whether on this state of facts the State of Illinois is liable to claimants for such amount expended by them.

Did the State, through its Canal Commissioners, make an express contract to pay? If not, do the facts raise an implied contract?

It can be assumed that Spring Lake was under the general jurisdiction of the Canal Commissioners. But if so, did the board expressly contract for the work? Counsel for claimants do not even so contend. The matter was never before the board. The board had no appropriation available for the purpose, and this was known to claimants before they did the work. Having no appropriation, not only did the board have no authority to authorize such expenditure, but they were by positive and penal enactment expressly forbidden to authorize such expenditure. It may be taken for granted then, that not only did the board make no express contract for the work, but that they also had no power to make it.

It follows, then, we think as a plain matter of course, that the Canal Commissioners, having no power or authority to make such contract, the law will imply none. It would be subversive of all legal limitation of official acts to hold that that could be done by indirection, that could not be directly done. The law recognizes no such absurdity.

Indeed, to do full justice to claimant’s counsel, he does not contend for such doctrine, but invokes the supposed equitable jurisdiction of this Court, under paragraph five of section three, of the Act creating and defining the jurisdiction of this Court, viz: “and such Court shall hear such claims according to its rules and established practice, and determine the same according to the principles of equity and justice, etc.” At first blush it might appear that counsel is justified in the position taken. It was clearly the duty of the State to have done this work. The work, so far as shown, was honestly and efficiently done for the benefit of the State. And it would seem to follow that the State is equitably bound to pay for the same. But it has been the uniform holding of this Court, that it was not the intent of the clause in question to authorize the Court to allow claims other than legal claims. The legislature is the supreme authority of the State, in the matters of the making of its laws and its appropriations ; and we have not felt at liberty to arrogate to ourselves the power contended for, by virtue of the general clause in question, which would be the practical usurpation of both of those purely legislative functions. We are therefore of the opinion that claimants are not entitled to judgment.


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    John Wildhagen v. State of Illinois.

      Opinion filed December 29, 1906.

    Muitart Service — when award will be made. Claimant enlisted in the Illinois National Guard and was called by the Governor to rendezvous at Springfield for service in the Spanish-American War, which he did. Upon a call of the President of the United States, claimant’s company was mustered into the United States service, but as claimant’s company had more members than the United States Army regulations authorized, he was rejected. The General Assembly having made an appropriation to pay such enlisted men (Session Laws 1901, p. 61), an award is accordingly made.
    Alfred E. Maiming, for Claimant.
    W. H. Stead, Attorney General, for State.
   It is shown by the petition and evidence herein that John Wildhagen, the claimant in this case, enlisted in Company B, First Infantry, Illinois National Guard, on April 25,1898; that on April 25,1898, said Company was called by the Governor to rendezvous at Springfield for service in the Spanish-American War; that claimant left Chicago on April 26, 1898, with his said company, and went to said place of rendezvous; that he was in camp with his said company till May 15, 1898, a total of seventeen days, in constant attendance and in the full performance of his military duties; that upon the call of the President of the United States, said regiment and company was mustered into the United States service, but that by reason of the United States Army regulations, claimant’s company had more than its quota of men, and claimant was rejected from the United States service, through no fault of his, and although he had successfully passed physical and other examination, as to his fitness, both by the Federal and State authorities; that claimant received no pay for his service, either from the State or United States.

In 1901, the General Assembly, by an Act duly passed and approved, appropriated $36,000.00 for the payment of such enlisted men, who were so rejected, at the rate of two dollars per day, from the time called out until rejected. (Session Laws of 1901, p. 61.)

Such being the facts of the case, the State, through the Honorable Attorney General, under the ruling of this Court in the case of Kruger v. The State, 1 Ct. of Claims, Rep. 336, concedes claimant’s right to recover, and files his consent that claimant be awarded the sum of thirty-four ($34.00) dollars, which is hereby accordingly done.


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    Michaele Di Cosola v. State of Illinois.

      Opinion filed December 19, 1908.

    License Fee — payment under void statute. Claimant paid a fee to obtain a license to operate a private employment agency under the Act of April 11, 1899, (Session Laws 1899, pp. 268-271), under threat of arrest which amounted to duress. The Act being later declared unconstitutional (Mathews v. People, 202 Ill., 389), he is entitled to a return of the fee so paid.
    R. De Stefano, for Claimant.

      W. H. Stead, Attorney General, for State.
   Michaele Di Cosola, claimant herein, seeks to recover two hundred ($200.00) dollars on account of the payment by him of a license fee to Honorable James A. Bose, Secretary of State, on or about March 19, 1902, for a license to operate a “private employment agency for hire” in the city of Chicago under an Act of the General Assembly pertaining thereto passed April 11, 1899, and going into effect July 1, 1899, held unconstitutional by the Supreme Court April 24, 1903, in the ease of Mathews v. The People, 202 Ill., 389.

The only question involved is whether such license fee was paid under what amounts in law to duress. It clearly appears from the evidence that claimant paid such license fee under threats of arrest by those charged with the enforcement of the supposed law. In the cases of Adams & Tillotson v. The State, and Hayden & McCormick v. The State, involving claims for license fees, paid under the Act in question under threat of arrest, as shown by the evidence herein, we have held that the threats and acts of the officers charged with the enforcement of the Act, amounted to duress; and we likewise hold in this case. Indeed, the Honorable Attorney General representing the State herein, concedes that the awards and opinions in the two cases above cited control in this case; and consents to an award herein.

"We, therefore, accordingly award claimant the sum of two hundred ($200.00) dollars.


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    Mike Cuculick v. State of Illinois.

      Opinion filed December 19, 1908.

    License Fee — Di Oosola v. State ante followed. This claim is similar to that of Di Oosola v. State, supra, and the law governing the allowance of that claim applies to this claim.
    E. L. Harpliam and C. W. Greenfield, for Claimant.
    W. H. Stead, Attorney General, for State.
   Mike Cuculick, claimant herein, seeks to recover two hundred ($200.00) dollars on account of the payment by him of a license fee in that amount to Honorable James A. Eose, Secretary of State, on or about March 18, 1903, for a license to operate a “private employment agency for hire” in the city of Chicago, under an Act of the General Assembly relative thereto, passed April 18,1899, and going into effect July 1, 1899, held unconstitutional by the Supreme Court April 24, 1903, in the case of Mathews v. The People, 202 Ill., 389.

This case is on the same state of facts and involves the same questions as in the ease of Michaele Di Cosola v. The State, decided by this Court at the present term, and in which an award was made in favor of the claimant; what we said and held in that case controls in this; and likewise as in that case the Honorable Attorney General consents to an award herein in the sum of two hundred ($200.00) dollars.

We, therefore, award the claimant the sum of two hundred ($200.00) dollars.


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    Fisk Teachers Agencies v. State of Illinois.

      Opinion filed December 19, 1908.

    License Pee — Di Gosola v. State ante followed. This claim is similar to that of Di Gosola v. State, supra, and the law governing the allowance of that claim applies to this claim.
    B. L. Harpham and C. W. Greenfield, for Claimant.
    W. H. Stead, Attorney General, for State.
   Fisk Teachers Agencies, claimant herein, seeks to recover two hundred ($200.00) dollars on account of the payment by it of a license fee in that amount to Honorable James A. Eose, Secretary of State, on or about May 16,1902, for a license to operate a “private employment agency for hire” in the city of Chicago, under an Act of the General Assembly relative thereto, passed April 11, 1899, and going into effect July 1, 1899, held unconstitutional by the Supreme Court April 24, 1903, in the case of Mathews v. The People, 202 Ill., 389.

This case is on the same state of facts and involves the same questions as in the case of Michaele Di Cosola v. The State, decided by this Court at the present term, and in which an award was made in favor of the claimant. “What was said and held in that case controls in this; and likewise as in that case the Honorable Attorney General consents to an award herein in the sum of two hundred ($200.00) dollars.

We, therefore, accordingly award claimant the sum of two hundred ($200.00) dollars.


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    Alessandro Conforti v. State of Illinois.

      Opinion filed December 19, 1908.

    License Fee — Di Cosola v. State ante followed. This case is controlled by the decision of the Court in the ease of Michaele Di Cosola v. State of Illinois, supra.

    R. DeStefano, for Claimant.
    W. H. Stead, Attorney General, for State.
   Alessandro Conforti, claimant herein, seeks tó recover four hundred ($400.00) dollars on account of the payment by him of two license fees in that amount, to Honorable James A. Eose, Secretary of State, on or about January 3, 1902, and April 1, 1903, for licenses to 'operate a “private employment agency for hire” in the city of Chicago, under an Act of the General Assembly relative thereto, passed April 11, 1899, and going into effect July 1, 1899, held unconstitutional by the Supreme Court April 24, 1903, in the case of Mathews v. The People, 202 Ill., 389.

The case is on the same state of facts and involves the same questions as in the case of Michaele Di Cosola v. The State, decided by this Court at the present term, and in which an award was made in favor of claimant. What we said and held in that case controls in this; and likewise as in that case the Honorable Attorney General consents to an award herein in the sum of four hundred ($400.00) dollars.

We, therefore, accordingly award claimant the sum of four hundred ($400.00) dollars.


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    Louis Krampe v. State of Illinois.

      Opinion filed December 19, 1908.

    Líense Pee — Di Gosola v. State ante followed. This case is controlled hy the decision of the Court in the case of Michaele Di Gosola v. State of Illinois, supra.

    Isaac Loeb and S. A. Ettelson, for Claimant.
    W. H. Stead, Attorney General, for State.
   Louis Krampe, claimant herein, seeks to recover two hundred ($200.00) dollars on account of the payment by him of a license fee in that amount to Honorable James A. Kose, Secretary of State, on or about April 25, 1902, for a license to operate a “private employment agency for hire” in the city of Chicago, under an Act of the General Assembly relative thereto, passed April 11, 1899, and going into effect July 1, 1899, held unconstitutional by the Supreme Court April 24, 1903, in the case of Mathews v. The People, 202 Ill., 389.

This case is on the same state of facts and involves the same questions as in the case of Michaele Di Cosola v. The State, decided by tins Court at the present term, and in which an award was made in favor of the claimant. What was said and held in that case controls in this; and likewise as in that case, the Honorable Attorney General consents to an award herein in the sum of two hundred ($200.00) dollars.

We, therefore, accordingly award claimant the sum of two hundred ($200.00) dollars.


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    Oscar A. Ross v. State of Illinois.

      Opinion filed December 19, 1908.

    License Fee — Di Cosola v. State ante followed. This claim is similar to that of Di Cosola v. State, supra, and- the law governing the allowance of that claim applies to this claim;
    E. L. Harpham and C. W. Greenfield, for Claimant.
    W. H. Stead, Attorney General, for State.
   Oscar A. Ross, claimant herein, seeks to recover two hundred ($200.00) dollars on account of the payment by him of a license fee in that amount to Honorable James A. Rose, Secretary of State, on or about November 14,1901, for a license to operate a ‘1 private employment agency for hire” in the city of Chicago, under an Act of the General Assembly, relative thereto, passed April 11, 1899, and going into effect July 1, 1899, held unconstitutional by the Supreme Court April 24,1903, in the case of Mathews v. The People, 202 Ill., 389.

This case is on the same state of facts and involves the same questions as in the case of Michaele Di Cosola v. The State, decided by this Court at the present term, and in which an award was made in favor of claimant. What we said and held in that case controls in- this; and likewise, as in that case, the Honorable Attorney General consents to an award herein in the sum of two hundred ($200.00) dollars.

We, therefore, accordingly award claimant the sum of two hundred ($200.00) dollars.


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    Libbie M. Smith v. State of Illinois.

      Opinion filed December 19, 1908.

    License Pee — Di Gosola v. State - ante followed. This claim is similar to that of Di Gosola v. State, supra, and the law governing the allowance of that claim applies to this claim.
    Homer J. Galpón, for Claimant.
    W. H. Stead, Attorney General, for State.
   Libbie M. Smith, claimant herein, seeks to recover two hundred ($200.00) dollars on account of the payment by her of a license fee in that amount to Honorable James A. Rose, Secretary of State, on or about May 10, 1902, for a license to operate a “private employment agency for hire” in the city of Chicago, under an Act of the General Assembly relative thereto, passed April 11, 1899, and going into effect July 1, 1899, held unconstitutional by the Supreme Court April 24, 1903, in the case of Mathews v. The People, 202 Ill., 389.

This case is on the same state of facts and involves the same questions as in the case of Michaele Di Cosola v. The State, decided by this Court at the present term, and in which an award was made in favor of the claimant. "What was said and held in that case controls in this; and likewise, as in that case, the Honorable Attorney General consents to an award herein in the sum of two hundred ($200.00) dollars.

■We, therefore, accordingly award claimant the sum of two hundred ($200.00) dollars.


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    C. J. Albert v. State of Illinois.

      Opinion filed December 19, 1908.

    License Pee — Di Cosola v. State ante followed. This case is controlled by the decision of the Court in the case of Di Cosola v. State, supra.

    E. L. Harpham and C. W. Greenfield, for Claimant.
    W. H. Stead, Attorney General, for State.
   C. J. Albert, claimant herein, seeks to recover two hundred ($200.00) dollars on account of the payment by him of a license fee in that amount to Honorable J ames A. Bose, Secretary of State, on or about April 29, 1902, for a license to operate a “private employment agency for hire” in the city of Chicago, under an Act of the General Assembly relative thereto1, passed April 11, 1899, and going into effect July 1, 1899, held unconstitutional in the case of Mathews v. The People, 202 Ill., 389.

This case is on the same state of facts and involves the same questions as in the case of Michaele Di Cosola v. The State, decided by this Court at the present term, and in which an award was made in favor of the claimant. What we said and held in that case controls in this; and likewise, as in that ease, the Honorable Attorney General consents to an award herein in the sum of two hundred ($200.00) dollars.

We, therefore, accordingly award the claimant the sum of two hundred ($200.00) dollars.


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    Phillip R. Crippin v. State of Illinois.

      Opinion filed December 19, 1908.

    1. Military Service — when award will be made. Where a member of the National Guard, while in the performance of his duties under the command of the Commander-in-Chief is injured, the Court of Claims will make an award.
    2. Damages — for loss of thumb. Where the injury consists in the loss of a thumb, an award of six hundred ($600.00) dollars was allowed.
    James Miles, for Claimant.
    W. H. Stead, Attorney General, for State.
   Phillip R. Crippen filed his claim the 3rd day of March, A. D. 1908, with the Auditor of Public Accounts of the State of Illinois, for the sum of twenty-five hundred ($2,500.00) dollars for an injury sustained while performing his duty as an officer and soldier. Claimant filed depositions in support of his claim. The Attorney General of the State of Illinois plead the general issue to the said claim. The said cause was argued orally by the attorneys before the Court. It appears in the declaration that the said claim has not been assigned in whole or in part.

The claimant while a regularly enlisted member of the Illinois National Guard and while at target practice under the lawful orders of the Commander-in-Chief was injured at Camp Logan Rifle Range, a State reservation for rifle practice. The said injury occurred on the 8th day of September, A. D. 1907, by the explosion of a rifle in the hands of claimant while he was firing at a target, and in the exercise of due care and caution for his own safety. The explosion of the rifle appears to have been caused by latent defect in the breach of the barrel and magazine, which occurred by reason of the crystallization of the steel which weakened this portion of the gun to such an extent that upon its discharge in firing at a target, in the pursuance of military orders, the weapon burst at the point of its weakness and defect.

It appears from the evidence that no reasonable inspection would have exposed the defects which caused the bursting and subsequent injury.

It appears from the evidence that claimant, in pursuance of military orders of his superior officers, was engaged in target practice at the time of the said injury. It also appears from the evidence that claimant examined the condition of the rifle from time to time and that he was an experienced rifleman, having qualified asa sharp-shooter in 1905, and as a marksman in 1906, and that he examined the condition of the rifle from time to time immediately preceding the explosion and injury. It appears that the said rifle was not subjected to excessive or improper use. The rifle seemed to be in good condition on the day claimant was injured. Claimant states that he took precaution to clean and inspect the rifle before firing. It appears from the evidence that the arms are inspected once a year by the Federal Government.

It also appears that the rifle did not rest upon the ground between the first and second shot, which removes any question of the possibility of any foreign substance getting into the barrel. It also appears that when the second shot was fired at the target, the rifle exploded at its chamber or barrel, taking off claimant’s left thumb flush with the hand, and lacerating his index finger. It does not appear from the evidence that any permanent injury resulted from the injury to the index finger. Claimant states that he was unable, from his observation of the rifle, to say what caused it to explode, except that, the steel after the explosion showed some indication of crystallization. It appears from the evidence that crystallization of the steel had occurred, but could not have been ascertained by reasonable or even close inspection. The ordnance officer of the First Infantry furnished the gun to Company C. It was issued to the State by the Government and the Adjutant General in return issued it to the First Infantry upon receipt of Colonel Sanborn. Claimant was a commissioned officer and had been a lieutenant for about three years at the time of the accident.

The Court is of the opinion that the proof in this case clearly established a claim in behalf of the claimant against the State of Illinois, and that claimant was wounded while performing his duties as an officer and soldier in pursuance of lawful orders from the Commander-in-Chief, and is under law entitled to a claim against the State of Illinois for financial help or assistance according to the circumstances involved.

Article 11, section 4, 1908 Hurd’s Revised Statutes of State of Illinois, page 2077.

Another question presents itself’ for consideration, which is the amount to be allowed claimant by reason of his said injury. Claimant’s attorney urges in his brief under Number 8, as follows: “Aside from the damages to which claimant would be entitled in law, it is the duty of the Court of Claims to award such financial help and assistance as the merits of the case may demand.”

It has been decided by the Commission of Claims of the State of Illinois in the case of O’Donnell v. The State of Illinois, page 255, that the Commission of Claims “can allow claims against the State of Illinois only in cases where by express statutory provision the legislature has created a liability on the part of the State for the acts of its agents or rather waived the exemption of the State from such liabilities and to sustain a recovery, it must come within the provisions of section 4, article 9, of the Military Code.”

Counsel for claimant in his oral argument before the Court urged that he was unable to find a case judicially determining the value of a thumb. In L. & N. R. R. Co. v. Law, 21 Southwestern Reporter, page 648, a jury allowed two thousand ($2,000.00) dollars for the loss of a thumb. We quote from the said case the following language:

“It being the province of the jury to assess damages as well as try tbe facts, this Court is not authorized nor ever inclined to disturb a verdict made, or because damages may be so assessed for a greater amount than we think is entirely reasonable and just, but as the statute has made it the duty of the Court to do so whenever the condition provided for in section 340 exists, we have no right to hesitate. In this case the amount of damages assessed is so utterly unreasonable and unjust, being at least four times more than it should have been, that the verdict clearly appears to us to have been given under the influence of partiality and prejudice, and therefore cannot stand.”

This was a case where the left thumb was injured, making amputation at the first joint necessary.

The item in claimant’s declaration for one hundred ($100.00) dollars to Doctor William S. White for operation and medical attention, the Court is of the opinion should be disallowed, for the reason that the said William S. White was, at the time the said services were rendered, an assistant surgeon of the National Guard of the State of Illinois. It appears from the evidence that the duties of the said assistant surgeon is to look after the general welfare of the command and take care of the sick and injured whenever ordered. The said surgeon received a military order from the captain of Company C to attend the claimant, and that the order was given because claimant had been injured while at target practice as aforesaid. The said item of one hundred dollars is disallowed.

From anything that appears in the record the claimant’s earning capacity has not been impaired. It is true there is some evidence that it will be more difficult for the claimant to secure employment. It appears that claimant is employed as cashier of the Illinois Tunnel Company, telephone department, and that he is chief clerk and cashier. It does not appear from the evidence that claimant is unemployed by reason of Ms injury, or that he is receiving less pay per diem or less salary as a result of the said injury. It may be inferred from the evidence that the injury to the said claimant is one that will still leave him able to earn as much, in many occupations ás he was earning before the injury. The Court is of the opinion that it should take into consideration claimant’s earning capacity in arriving at the amount of damages to he allowed.

Claimant’s attorney refers to Green v. The State, 1 Court of Claims Reports, 173, as follows:

“It appears in that case that Green, in obedience to orders while engaged in target practice and while in the exercise of due care and caution for his own safety and without any negligence on his part, the rifle that he was using exploded and greatly lacerated and wounded his hand, nearly tearing off his thumb, by which claimant was permanently deprived of the perfect use of his left hand; that he suffered great pain and anguish and for the space of three months he was wholly disqualified from performing any labor and earning a livelihood, and that he was permanently injured so that his ability to earn a livelihood has been materially decreased.”

The injury in the said case appears to have been more serious than the injury which we are now considering, and it also appears that the claimant in the case cited suffered greater permanent disability.

The Court is 'of the opinion, after a careful consideration of all the evidence and facts presented, that six hundred ($600.00) dollars would be a reasonable award to the claimant in full of his claim against the State of Illinois, by reason -of the said injury, for financial help and assistance, according to the merits of his claim.

The claimant is therefore awarded by the Court the sum of six hundred ($600.00) dollars, in full payment of the said injury.


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    Home Life Insurance Company of New York v. State of Illinois.

      Opinion filed December 19, 1908.

    1. Insurance — statute with reference to foreign life companies. This is a claim to recover certain moneys paid to the State of Illinois by claimant, upon premiums collected by it on life insurance policies in this State during the years 1902-1903 and is based upon sec. 200, chap. 73, Hurd’s Rev. Stat., relating to Life Insurance, which provides that,
    “whenever the existing or future laws of any other state of the United States shall require of life insurance companies, incorporated by or organized under the laws of this State and having agencies in such other state, * * * any payment for taxes, fines, * * * license fees or otherwise, greater than the amount required for such purposes from similar companies of other states, by the then existing laws of this State, then and in every such case, all life insurance companies of such states, * * * shall be and are hereby required * * * to pay to the Auditor, for taxes, fines, * * * license fees or any other obligation, an amount equal to the amount of such charges and payments imposed by the laws of such other state upon the companies of this State * *
    2. Retroactive Operation oe Statute — construction by State official. The New York Statute provided that all life insurance companies,
    “incorporated, organized or formed under, by or pursuant to the laws of any other state of the United States and doing business” in the State of New York, as well as all domestic companies, should pay
    “an annual state tax for the privilege of exercising corporate franchises or for carrying on business in their corporate or organized capacity within this State, equal to one per cent on the gross amount of premiums received during the preceding calendar year for business done,”
    in that state. The Comptroller of Insurance of New York construed the above statute to the effect that the tax was to be levied on all premiums received during the year, irrespective of whether the premiums were collected on policies issued before or after the act went into effect. The Superintendent of Insurance of Illinois followed the construction placed upon said statute by the Comptroller of Insurance of New York, and held that the claimant should pay to the State of Illinois a one per cent tax upon premiums received by claimant in this State, and thereupon claimant paid said tax. Later the Court of Appeals of New York, in the case of People ex rel., Provident Savings Life Assurance Society v. Miller, State Comptroller, 179 N. Y., 227, held, that as to domestic corporations, the tax was limited to premiums collected on policies issued subsequent to the Act going into effect. Claimant, after the above decision had been rendered, contended that the payments were illegal and should be refunded.
    3. Mistake op Law — defined. A mistake of law is an erroneous conclusion as to the legal effect of known facts. The construction of words is a matter of law. (Purvines v. Harrison, 151 Ill., 219.) A mistake of law is one which occurs when a person is truly acquainted with the existence or non-existence of facts, but comes to an erroneous conclusion as to their legal effect. (30 Cyc., 1315.)
    4. Same — voluntary payment under — no recovery. The tax having been paid voluntarily, under a mistake of law, and not under a mistake of fact, no recovery may be had. (Yates v. Boyal Insurance Co., 200 Ill., 202; Elston v. City of Chicago, 40 Ill., 514; People v. Miner, 46 Ill., 374; Swanston v. I jams, 63 Ill., 165; Otis v. People, 196 Ill., 542; Walser v. Board of Education, 160 Ill., 272.)
    5. Same — voluntary payment under unconstitutional statute — no recovery. Where a payment is made voluntarily under a statute which is later held to be unconstitutional, there can be no recovery. (Yates v. Boyal Insurance Co., supra.)

    6. Same — payment under mistaken belief — no recovery. Payment of money into the treasury of this State under the belief that there was then in existence a particular statute of another state which exacted a tax similar to the statute of this State, is not a mistake of fact; neither is a mistake as to a foreign law a mistake of fact.
    7. Presumption — of law. Every person is presumed to know the law in the country where he dwells.
    8. Corporation — situs of. A corporation is a citizen, resident and inhabitant of the state by or under which it was created and of that state only, even though it may be doing business in another state and have part or all of its property there.
    9. Foreign Law — defined. A foreign law is a law foreign to the residence of the individual making the mistake. (Marshall v. Coleman, 187 Ill., 556.)
    10. Reciprocal Law — when operative. The reciprocal law of Illinois has no force or effect until some other state has passed a law taxing Illinois corporations, and then it becomes effective to tax the companies of such other state in the same manner in this State.

      11. Judicial Notice — taken of what. Courts take judicial notice of the construction placed upon a law of a sister state by the courts of that state. (HcDeed v. McDeed, 67 Ill., 545; Hoes v. Van Alstyne, 20 Ill., 202.)
    12. Jurisdiction — class of claims Court may allow. Claimant finally contends that on equitable principles it is entitled to recover. The allowance of legal and equitable claims is governed by legal principles. Equity follows the law.
    Isham, Lincoln and Beale, for Claimant :
    Liquidated Claim — what constitutes.

      Hairston v. Sumner, 17 Southern, 709; Jones v. Hunt, 74 Texas, 657, 12 S. W., 832; Kennedy v. County of Queens, 47 N. Y. App. Div., 250, 261; Chicago, etc., Ry. Co. v. Clark, 92 Fed., 968, 985; Roberts v. Prior, 20 Ga., 561; Clark v. Dutton, 69 Ill., 521; Charnley v. Sibley, 73 Fed., 980, 982; Krueger v. State, Vol. 1, Ill. Court of Claims Reports, p. 336.
    Statute of limitations does not run until mistake is discovered.

      McIntosh v. Saunders, 68 Ill., 128; Gordon v. Johnson, 186 Ill., 18, 31; Board of Supervisors v. Winnebago, etc., 52 Ill., 299; 2 Story’s Equity Jurisprudence, Par. 1521a.
    W. H. Stead, Attorney General, and George B. Gillespie, for State:
    A claim is liquidated when the amount due is fixed by law or has been ascertained and agreed upon by the parties, unliquidated when it has not been so settled.

      Chicago, R. I. & P. Ry. Co. v. Mills, 69 Pac., 317; Commercial Union Assurance Co. v. Meyer, 29 S. W., 93; Jones v. Hunt, 12 S. W., 832; Mitchell v. Addison, 20 Ga., 50; Hargraves v. Cooke, 15 Ga., 321; Kennedy v. Queens Co., 62 N. Y. Supp., 276, 47 App. Div., 250; Kercheval v. Doty, 31 Wis., 476; Treat v. Price, 66 N. W., 834; Continental Ins. Co. v. Chase, 33 S. W., 602; Clark v. Dutton, 69 Ill., 521; Ostrander v. Scott, 161 Ill., 339; Warner v. Tyler, 81 Ill., 15; Underhill v. Gaff, 48 Ill., 198.
    Where a tax is voluntarily paid with knowledge of the facts, there can be no recovery.

      Walser v. Board of Education, 160 Ill., 272; Elston v. City of Chicago, 40 Ill., 514; The People v. Miner, Auditor, 46 Ill., 374; Swantson v. Ijams, 63 Ill., 165; Falls v. City of Cairo, 58 Ill., 403; Otis v. The People, 196 Ill., 542; Yates v. Royal Insurance Co., 200 Ill., 206

      Ignorance of the law is no excuse.

      Marshall v. Coleman, 187 Ill., 556, 581.
   This is an action to recover back money paid by claimant to the State of Illinois on January 31, 1903, and February 3, 1904, as a, tax upon its premium receipts from business done in the State of Illinois, during the years of 1902 and 1903, upon policies issued by claimant prior to January 1, 1902.

Claimant, The Home Life Insurance Company, is a New York corporation, having been incorporated under the laws of that State in 1860, and having done business in the State of New York since its incorporation, and in the State of Illinois for over 30 years.

Section 200, chapter 73, of the Statutes of Illinois, relating to life insurance, provides that “whenever the existing or future laws of any state of the United States * * * shall require of insurance companies incorporated by or organized under the laws of this State and having agencies in such other state, * * * any payment for taxes, fines, * * * license fees or otherwise, greater than the amount required for such purposes from similar companies of other states, by the then existing laws of this State, then and in every such case all companies of such states shall be and are hereby required * * * to pay to the Auditor, for taxes, fines, * * * license fees and otherwise, an amount equal to the amount of such charges and payments imposed by the laws of such state upon the companies of this State.”

On March 16, 1901, the legislature of the State of New York passed and the Governor approved a law, the same going into full force and effect on October 1, 1901, which provided that all life insurance companies “incorporated, organized or formed under, by, or pursuant to the laws of any other state of the United States and doing business” in the state of New York, as well as all domestic companies, should pay “an annual state tax for the privilege of exercising corporate franchises or for carrying on business in their corporate or organized capacity within this State, equal to one per centum on the gross amount of premiums received during the preceding calendar year for business done” in that state, said tax to be paid annually into the State treasury on or before the first day of June.

The Comptroller of Insurance of New York construed the above statute to mean that the tax was to be levied on all premiums received during the calendar year, irrespective of whether such premiums were collected on policies issued before or after the Act went into effect.

The Superintendent of Insurance of Illinois followed this construction and prepared printed notices, one of which was sent claimant, under date December 16, 1901, to the effect that there would be due the State of Illinois, from the claimant, “a tax of one per cent on premiums received by claimant, for business done in the State of Illinois during the year 1902,” that “the law required these fees and taxes to be paid as a condition precedent to doing business in this State, and that therefore it was absolutely necessary that draft be forwarded” for the same.

Claimant promptly complied with the request of the Superintendent of Insurance and, without any word of protest or complaint of any kind, on January 31,1903, forwarded to the superintendent a draft, $2,173.86 of the amount of which represented the one per cent of the premiums received by claimant on business done in the State of Illinois for the year 1902.

Subsequently, on February 3, 1904, claimant forwarded to the Superintendent 'of Insurance the sum of $2,343.87, being one per cent of the premiums received for the year 1903, and on January 27, 1905, the further sum of $2,407.72, premiums for the year Í904. The only notice sent the claimant by the superintendent was the one of December 16,1901.

In October of 1904, the New York Court of Appeals, in the case of the People ex rel Provident Savings Life Assurance Society v. Miller, State Comptroller, reported in the 179 N. Y., 227, construed the New York statute differently from the construction placed upon it by the Comptroller and in so doing reversed the Appellate Division.

The case of People ex rel. Provident Savings Life Assurance Society v. Miller was one where the relator was a corporation, incorporated under the laws of New York and hence, as to that state, a domestic corporation. The Comptroller had assessed said corporation for the year 1901 upon the entire amount of its premium receipts for that year. The Court of Appeals, by a divided Court, two of the five judges dissenting, held that, as to domestic corporations, the tax must be limited to new policy premiums, commencing with those collected during the calendar year 1902, and not upon premiums derived from contracts made prior to January 1, 1902.

Claimant therefore alleges that of the amount of tax paid by it, under the reciprocal law of Illinois to the Superintendent of Insurance of Illinois, in January of 1903 and in February of 1904, upon the business done by it in the State of Uliitois, for years 1902 and 1903, respectively, that $1,902.16 paid in 1903 and $1,732.67 paid in 1904, was paid on premiums on policies issued prior to January 1, 1902, and that the said amounts, under the judicial construction of the New York Act of 1901, by the New York Court of Appeals, was an overcharge, was illegally collected and should be paid back, by the State of Illinois, with interest thereon from date of payment.

Claimant made-demand upon the Superintendent of Insurance of Illinois for the return of said amounts and upon his refusal to so do, brings its claim before this Court.

Since the filing of this claim, the New York legislature, on March 23, 1905, passed an amendatory Act to the Act of 1901, providing for an annual tax of one per cent “on the gross amount of premiums received during the preceding calendar year for business done” at any time, in that state, “including all premiums received during such calendar year, on all policies issued ■or delivered in all years prior to such preceding calendar year.”

In Connecticut Mutual Life Insurance Co. v. Kelsey, 101 N. Y. Supp., 902, the Appellate Division of the New York Court, construed this amendatory Act to require foreign insurance companies doing business in New York to pay said tax upon all premiums collected by said companies in the year 1904, on all policies in force in that state, whenever issued. This opinion has been affirmed by the New York Court of Appeals in 188 N. Y., 541, and claimant therefore makes no claim for a refund or recovery of any portion of the tax paid by it in 1905 to the Superintendent of Insurance of Illinois, on premiums collected in 1904.

It may be said in the outset, that no question of payment under compulsion or duress is urged by claimant in this case, and no evidence of duress appears in the record. Claimant received in December of 1901, from the Superintendent of Insurance of Illinois, notice that the tax in question, on premiums for the year 1902, would be due. Said tax was not due, if due at all, under the New York law until June 1, 1903. The Illinois statute does not require an annual report to be filed until March first. Claimant sent draft for said tax on January 31, 1903, making no protest or complaint about the payment of the tax. In answer to the question, “What reply, if any, did your company make to claimant’s exhibit No. 1?” (referring to the notice sent by the Illinois Superintendent), Mr. Marshall, the actuary for claimant, replied, “No reply, except the practical one of paying the tax. ’ ’ The tax on premiums for the year 1903 was not due until June 1, 1904, nor the Illinois report until March 1, 1904. Claimant forwarded same February 3, 1904, on its own motion, without notice from the Superintendent of Insurance of Illinois. The payment therefore was clearly a voluntary one in both cases and the question here is not one as to duress, but whether claimant can recover back a tax voluntarily paid under mistake, whether of fact or law.

It may next be noted that if the said payments were made by claimant under a mistake of law, there can be no recovery back in this case, of payments so made. This proposition is so elementary and so well established in Illinois, as well as in all other jurisdictions, that citation of authority is hardly necessary. The case of Yates v. Royal Insurance Co., 200 Ill., 206, is particularly in point, it being* a case where payments were made to the Superintendent of Insurance of Illinois, under a law which was subsequently held to be unconstitutional. So also Elston v. City of Chicago, 40 Ill., 514; People v. Miner, 46 Ill., 374; Swantson v. Ijams, 63 Ill., 165; Union Building Association v. City of Chicago, 61 Ill., 439; Otis v. People, 196 Ill., 542; Walser v. Board of Education, 160 Ill., 272.

But claimant bases its right to judgment in this cause on the ground that the mistake under which it labored was a mistake of fact and not a mistake of law, and that money paid under a mistake of fact can be recovered back in a proper action. In maintaining this position, claimant’s counsel indulge in an exceedingly ingenious argument and predicate it upon two theories: First, that it paid the alleged excess tax under a belief that there was a New York law levying such a tax on foreign companies, that subsequently the New York Courts held that there was no such law and that claimant’s mistake was a mistake of the fact of the existence of such a law; and second, that claimant’s mistake was of a New York law, that the New York laws are foreign laws as to Illinois, where the transaction was had, and that a mistake of a foreign law is a mistake of fact.

In order to intelligently discuss these propositions, let us see just what the New York legislature and the New York courts did, and what the nature of the mistake was that claimant made.

The New York legislature passed a law levying a tax equal to one per cent “on the gross premiums received during the preceding calendar year, for business done” in the state of New York by both domestic and foreign concerns. The passage of this law in March, 1901, its approval by the Governor and its becoming operative October 1, 1901, are facts concerning which claimant or no one else made a mistake.

The language of the law indicated that the legislature intended to levy the tax on all premiums received by companies, during the calendar year, from all policies issued by them, irrespective of whether the policies were issued before or after the passage of the law. The Comptroller of New York so construed it and so levied the tax. Claimant followed the Comptroller’s construction and paid the tax, according to this construction, both to the Comptroller of New York, on premiums received in New York, and to the Superintendent of Insurance of Illinois, on premiums received on policies in Illinois, and this without complaint or protest.

The Provident Assurance Society, likewise a New York concern, however, refused to follow this construction and filed a suit in the courts of New York to have the law construed. The Appellate Division held the Comptroller’s construction to be the correct one. On appeal to the Court of Appeals, this Court of last resort, by a divided Court, two judges dissenting, reversed the Appellate Division and construed the law to mean that only such premiums should be taxed as were received during the calendar year, upon policies issued on and after January 1, 1902.

It will thus be seen that the entire question here was what was the proper construction and interpretation of the law. It was a matter of construction. Claimant construed it one way. The Court construed it another. Claimant misconstrued and misapprehended the meaning of the law. Claimant made no mistake as to the fact of the passage of the law or the fact that the law was in existence, but made its mistake as to the proper interpretation and legal effect of that law.

A mistake of law is an erroneous conclusion as to the legal effect of known facts. The construction of words is a matter of law. Purvines v. Harrison, 151 Ill., 219, 223. A mistake of law is one which occurs when a person is truly acquainted with the existence or non-existence of facts, but comes to an erroneous conclusion as to their legal effect. 30 Cyc., 1315.

Claimant’s argument, that because it believed there was a law in New York taxing premiums on policies issued prior to 1902, that the New York courts subsequently held that the law in force taxed premiums only on policies issued on or after January 1, 1902, and not on policies issued prior to 1902, that therefore there was no law taxing premiums on policies issued prior to 1902, and claimant believing there was such a law, made a mistake of fact and not of law, is purely specious and untenable.

As well might it be said that a tax paid under a law subsequently held unconstitutional was a mistake of fact. In fact, more so, for when a statute is held unconstitutional the authorities all hold that the effect is to render the statute null and void, ab initio, from date of enactment, as if there had never been such a law. 8 Cyc., 804.

But the case of Yates v. Royal Insurance Co., supra, was just such a case. The Royal Insurance Co. believed there was a law in Illinois taxing premiums and paid under that belief; the Illinois Supreme Court held the law under which said tax was paid unconstitutional, and hence null and void, ab initio, but our Court held that a tax voluntarily paid under an Act subsequently held unconstitutional is a mistake of law, and not of fact, and cannot be recovered back.

On the proposition of the construction of a law, Elliott v. Swartwout, 10 Pet., 137, is in point. This was a case where excessive tariff duties were exacted by a collector of import duties, on certain shawls. The collector, in his construction of the provisions of the tariff Act, classified the shawls as manufactures of wool. Suit was brought to recover back from the collector the excess of duty paid, on the ground that the shawls should have been classified as worsted, the rate on worsteds being lower than the rate on wools. The Court construed the tariff act in such a way as to make the proper classification of the shawls as worsteds, but held that the excess, being voluntarily paid, under a mistake of law, could not be recovered back. The Court say:

“The collector has received the money in the ordinary and regular course of his duty, and has paid it over into the treasury and no objection made at the time of payment. This presents the case of a purely voluntary payment, without objection. It is to be considered as a voluntary payment by mutual mistake of law. The construction of the law is open to both parties and they are each presumed to know it. Any instruction from the Treasury Department could not change the law or affect the rights of plaintiff. He was not bound to take and adopt that construction. He was at liberty to judge for himself and act accordingly. * * * The case put in question is one where no suit would lie at all. It is a case of a voluntary payment under a mistake of law and the money paid into the treasury.”

Again the Court say: “There are many doubtful questions of law. When they arise defendant has an option to litigate the question or submit to the demand and pay the money. But it would be most mischievous and unjust if he, who has acquiesced in the right by such voluntary payment, should be at liberty, at any time within the statute of limitations, to rip up the matter and recover back the money. This doctrine is peculiarly applicable to a case where the money has been paid over to the public treasury, as in the question now under consideration.”'

In Healey v. United States, 29 U. S. Court of Claims, 115, the U. S. Court of Claims held that “where the law is unsettled, and in doubt, money paid in mistake of its true construction may be considered in the nature of a compromise and cannot be recovered back. ’’ See also DeBow & Co. v. U. S., 11 U. S. Court of Claims, 672.

In view of tbe authorities cited and tbe facts in this case, we are of tbe opinion tbat tbe mistake made by claimant was a mistake in tbe interpretation, construction and legal effect of tbe New York law, not of tbe fact of tbe existence of tbe law, and to that extent was a mistake of law.

But again, claimant contends tbat as tbe payment was made in Illinois, under a mistake of a New York law, tbat tbe New York law was, as to tbe place of transaction, a foreign law and tbat a mistake of a foreign law is a mistake of fact.

It is conceded tbat claimant was a New York corporation, incorporated and organized under the laws of New York. “Tbe status of a corporation is determined by the place of its origin.” 19 Cyc., 1204. “A corporation is a citizen, resident and inhabitant of tbe state by or under which it was created and of tbat state only, even though it may be doing business in another state and have part or all of its property there.” 19 Cyc., 1219, and authorities there cited. Claimant was therefore a resident of New York.

It is also a well established principle tbat “every person is presumed to know tbe law of tbe country in which be dwells or resides.” 16 Cyc., 1083 and cases cited. “All persons subject,to a law are irrebuttably presumed to know what it is. ’ ’ Wharton on Civil Evidence, 3 Ed., 1240. Claimant resided in New York and was presumed to know tbe law of tbat state. There is also no question tbat as a domestic insurance corporation in New York, claimant was “subject” to tbe law in question, for tbe same law which taxed foreign companies taxed domestic companies as well. Claimant was amenable to tbat law and complied therewith. It was then presumed to know this law and the presumption is “irrebuttable.”

Claimant construes the term “foreign law” to mean a law foreign to the locus of transaction. What it seeks here to take advantage of is the rule that a mistake of a foreign law is a mistake of fact. What then is the meaning of the term ‘ ‘ foreign law ’ ’ as here used ? Foreign as to whom? Obviously, foreign as to the person making the mistake, who is seeking to recover back what was paid under such mistake and not foreign to the place of transaction. Claimant made the mistake in this case. How then can it be said that claimant made a mistake of a law foreign to it, when its mistake was uf the law of its own state?

In the case of Marshall v. Coleman, 187 Ill., 581, our Courts have substantially construed the term “foreign law,” in this connection, to> mean a law foreign to the residence of the individual making the mistake. In that case Mrs. Coleman had an inheritance and rights to property in Illinois. The Illinois property was the subject matter of the proceedings, which proceedings were held in Illinois, yet our Court held that, “being a resident of Colorado she was not affected with knowledge of the statutes of Illinois, in which State she did not reside.” Place of residence of the individual, who made the mistake, was here made the criterion as to what was a foreign law. Why should not the same rule apply to claimant in the case at bar?

The reciprocal law of Illinois has no force and effect until some 'other state has passed a law taxing Illinois concerns, and then it becomes effective to tax the companies of such other states in Illinois in the same manner. The tax is levied upon corporations of such other states, upon their business in this State. It is based upon the presumption that the corporations, in such other states, come into Illinois with full knowledge of the law of their own state and with knowledge of what their own state taxes Illinois companies, doing business in their state, and that, if they propose to tranasct business in Illinois, they will be subject to the same tax in Illinois that their own state levies on Illinois concerns, and this as a condition of their entrance to this State to transact business. The reciprocal law of Illinois deals with foreign companies as such, is directed solely against foreign concerns and has no other object.

In this entire transaction, claimant’s status is that of a New York corporation. If it had not been a foreign corporation, it would not have been taxed. Even though the transaction- in part occurred in Illinois, claimant’s character in the transaction is that of a corporation incorporated in New York and the application of any law to claimant, in this matter, must of necessity be an application to claimant in its capacity as a New York corporation. As a New York corporation, it must then be charged with knowledge of the laws of New York, and any mistake as to that law is a mistake of the law of its own state and therefore a mistake of law.

It would be stretching a technicality to its utmost to say that claimant, coming into this State as a foreign corporation, being allowed the privileges of this State as a foreign corporation, by laws of comity, being taxed as a foreign corporation for the reason that the laws of its own state tax foreign corporations there, should be allowed, in a transaction of this kind, to divest itself of its character, as a foreign corporation and place itself on the plane of a domestic corporation, in order that it may take shelter under the rule that a mistake of a foreign law is a mistake of fact.

Claimant 'argues, in this connection, that “suppose claimant had refused to pay the tax and some action had been brought to determine whether the Illinois law required the payment of the tax on gross receipts; to prove that the tax was due it would have been necessary to give evidence of the New York statute as of any other fact,” and concludes that if the Court itself is not presumed to know the New York law, how is claimant presumed to know it!

This would depend upon the forum where the action was brought. If in Illinois, this might be true; but if brought in New York, claimant would not be claiming there that the New York Act was a foreign law or that claimant was not presumed to have knowledge of the Act, neither would it be necessary to introduce proof of it, for the New York courts would take judicial knowledge of the law.

But claimant contends that the transaction was had in Illinois, and that in Illinois proof of a New York statute must be made as a fact. But, as we have already shown, claimant’s mistake in this case was not a mistake of the fact that there was a New York statute taxing premiums on policies, but its mistake was as to the interpretation, construction and legal effect of that statute. Proof of the statute would, it is true, have to be made in an Illinois proceeding, as a fact, but not so, as to the construction and interpretation placed upon it by the New York courts. The Illinois courts would take judicial knowledge of the construction of the law as given by the New York courts.

‘‘Courts have uniformly taken notice of the construction given to foreign statutes, by foreign tribunals; and to enable them to do this, they always have been in the habit of looking to the reports of such tribunals.’’ McDeed v. McDeed, 67 Ill., 545; Hoes v. Van Alstyne, 20 Ill., 201.

Again, it should be noted that even if, in the first-instance, in a legal proceeding in Illinois, the taxing statute of New York would have had to be proven as a fact, that, as soon as so proven as a fact, it then and thereupon becomes, in effect, the law of Illinois. In ordinary cases, where proof is made of foreign statutes, the foreign statute is a fact before proof and remains and continues, after proof, to be a fact for all time and for all purposes. But under our reciprocal 7, the fact once proven is incorporated into and in becomes the Illinois law.

Deferring to the reciprocal statute of Illinois, our Court, in Germania Ins. Co. v. Swigert, 128 Ill., 246, say: “The manifest purpose of this enactment is to restrict insurance companies of other states in doing business in this State, by precisely the same restrictions with which insurance companies of this State are restricted in such other states, and so, necessarily, our law must read, with respect to insurance companies of Louisiana doing business in this State, in the exact language and meaning of the law of Louisiana, with respect to insurance companies of other states doing business in that state.”

In Talbott v. Fidelity Co., 74 Md., 536, in construing the reciprocal insurance law of Maryland, with reference to the New York law, the Court say: “When the New York statute imposes an obligation or a prohibition not found in ours, that obligation and prohibition must be treated as if found in so many words in our statute and enforced accordingly. Our statute makes the New York law our law, to control the action of our Commissioners of Insurance.”

In any view of the case taken, we are of the opinion that claimant made payment of the alleged excess taxes, in this ease, under a mistake of the construction, interpretation and legal effect of a law of the State, in which claimant resided, and hence its mistake was a mistake of law.

But a still more serious feature of this case has not been adverted to either in the briefs of claimant or of the State. The reciprocal law of Illinois has to do only with the question of whether or not the laws of other states tax Illinois corporations doing business in those states. For the purpose of our reciprocal statute, it is immaterial whether or not the New York law taxes its own corporations but the all-important question here is: Did the New York law provide for a tax upon premiums upon policies issued prior to January 1, 1902, by Illinois and other corporations foreign to New York?

That in the ease of People ex rel Provident Savings Life Assurance Society v. Miller, the New York Court of Appeals held that the New York law did not apply to premiums on policies issued prior to 1902, by domestic insurance corporations, is conceded. But has it even passed upon that proposition, with reference to companies foreign to New York? Has that feature of the law as yet received judicial construction?

The Provident Assurance Society was a domestic concern incorporated in New York, and the question before the New York Court was purely with reference to domestic companies. In fact, the Court in its opinion takes pains to differentiate between the application of the law to domestic and foreign concerns, and bases its differentiation upon the differentiation mentioned in the New York law.

Domestic corporations, in a state, transact business by virtue of their corporate franchises; foreign corporations by virtue of the laws of comity.

The New York law levied the premium tax on domestic companies, as the law specifically states, “for the privilege of exercising corporate franchises.” It levied the tax on foreign companies, not for the privilege of “exercising corporate franchises,” but for the privilege of “carrying on business in their corporate organized capacity within the State.” In this regard, domestic and foreign corporations were placed on a different footing.

The Court, in its opinion, holds that domestic corporations cannot be taxed on premiums on policies issued by domestic concerns prior to 1902, because such premiums were collected on “past contracts,” which “did not depeqd upon the exercise of the franchises.” This is the basic principle of the opinion and it has reference, and reference alone, to the ease of domestic corporations, to the exclusion of foreign concerns.

The Court say: “The tax is purely a franchise tax, and nothing else,” as to domestic corporations. The tax imposed for carrying on business in their corporate organized capacity, (quoting the language of the statute) appliés only to foreign corporations deriving their franchises from other sovereignties.

The Court does not say whether a tax on premiums received from policies issued prior to 1902, by foreign concerns, such tax being for the privilege of “carrying on business within the State,” is a proper tax or not. It might or it might not be. It does not follow from analogy from the opinion rendered, in the case of domestic concerns. The conditions are different. The Court did not adjudicate this question. It has never adjudicated it. It remains just where it was when claimant paid its tax to the Superintendent of Insurance of Illinois.

We have not undertaken to discuss the authorities cited by claimant, from other jurisdictions than our own, the proposition of law here involved being variously construed in the various jurisdictions, some holding to the rule rigidly, and others to varying extents, modifying the same.

In Illinois the rule has been most rigidly and strictly enforced. In fact, our authorities have gone so far as to hold that where a tax has been levied without any authority of law whatsoever and paid voluntarily, with a full knowledge of the circumstances under which it was demanded, it cannot be recovered back. Elston v. City of Chicago, 40 Ill., 514.

A school district which has collected its full tax levied cannot recover from another district taxes collected by it upon lands within the former, through a mistake of the clerk as to the location of the lands, although the rate per cent of tax as extended in the former was thereby made greater than it otherwise would have been. Walser v. Board of Education, 160 Ill., 272.

Taxpayers in one school district, who voluntarily pay a tax, levied by mistake upon their lands to another district, cannot recover back the same, where the books were kept open and means of knowledge of all the facts existed, although they supposed they were paying the tax of the district in which their lands lay. Walser v. Board of Education, supra.

With reference to the question raised of claimant’s equitable position for recovery, it need only be said that in the application of . the rule herein discussed, equity follows the law. Upton v. Tribilcock, 91 U. S., 45; 30 Cyc., 1314, and authorities cited.

In view of the facts in this case and the authorities applicable thereto, we are of the opinion that the alleged excess payments made by claimant to the Superintendent of Insurance of Illinois, under the operation of the reciprocal law of Illinois, cannot be recovered back and the claim is therefore rejected.


text:
    Edward J. Lebeau v. State of Illinois.

      Opinion filed December 19, 1908.

    1. Military Service — when recovery may be had. Claimant was injured while in performance of his duties in the military service of the State at Camp Lincoln. Held, that claimant is entitled to an award for loss of time.
    2. Expenses — what are proper. Expense of a private room in a hospital is a reasonable expense to be included in the claim.
    3. Same — what are not proper. Expenses of a special diet, fruit, flowers, laundry and clothing are not proper items of expense to be included in the claim.
    4. Damages — what may be considered in measuring. Impaired health, earning capacity, mental worry, anguish and permanent disfigurement of body may be considered in determining the amount of an award.
    Frank J. Bums, for Claimant.
    W. H. Stead, Attorney General, for State.
   Edward J. Lebeau, claimant in tbe above entitled cause, filed his claim on the 23rd day of April, A. D. 1908, with the Auditor of Public Accounts of the State of Illinois, for the sum of seven hundred three dollars and eighty cents ($703.80), which claim by leave of Court was amended to nine hundred three dollars and thirty cents ($903.30). The Attorney General of the State of Illinois plead the general issue to the said claim and amendment. The said claimant filed depositions in support of his claim.

The said claimant seeks to recover damages by reason of the alleged serious injuries received while in the military service of the State of Illinois, on or about the 3rd day of July, A. D. 1906, at Camp Lincoln, near Springfield, Illinois, where the said Lebeau was in the actual performance of his duties under military orders from his superior officers at the annual encampment of the Third Infantry, Illinois National Guard.

The claimant, on the 16th day of May, A. D. 1906, at twenty-three years of age, enlisted as a soldier in Company L of the Third Regiment of Infantry, Illinois National Guard, for the term of three years, at Kankakee, Illinois, and was a member of the said company under the rank of corporal, at the time of the said injury.

The said claimant was under military orders of his superior officers and was in charge of the stable detail on the 3rd day of July, 1906, when the said injury occurred. It was the claimant’s duty under the said orders to transfer the horses from the stable detail located in the rear of the quarters of the field officers of said regiment at Camp Lincoln to the picket line, about a quarter of a mile distant, to the place of drill and ceremony, for the use of the superior officers. In pursuance of his said duties, while riding one horse and leading two other horses to the aforesaid picket line from the stable detail, and while in the exercise of due care and caution for his own safety, one of the horses he was leading suddenly became frightened and pulled said Lebeau backward with such force and violence that he was then and there ruptured. Being severely injured, he was assisted by several soldiers to the camp hospital at said Camp Lincoln and was taken from there under military orders to the emergency hospital at Kankakee, Illinois, for proper medical attention, and where Captain R. C. Bourland, Assistant Surgeon of the Third Infantry, Illinois National Guard, acting under military orders of his superior officers, performed a necessary surgical operation on the said claimant for inguinal hernia. The operation is regarded as a major operation. Claimant remained at the said hospital for a period of about five weeks and was confined to his bed the major portion of that timé and did not recover sufficiently to resume work at his usual trade, which was that of a carpenter, nor to perform work of any kind until about the first day of October, A. D. 1906, and was therefore by reason of the said injuries rendered incapable of following his usual occupation from the third day of July until about the first day of October, A. D. 1906. The record in this case tends to show that the said operation was entirely successful, and that the claimant fully recovered from the effects of the said injury and the said operation. Said Captain Bourland was assisted in the said operation by Doctors Gr. H. Lee and J. H. Kanaga, of Kankakee, Illinois.

The item in claimant’s bill of particulars for six hundred forty-eight (648) hours loss of time at thirty-five ($.35) cents per hour, the wages received per hour, and for loss of overtime estimated at sixty (60) hours at fifty-two and one-half ($.52£) cents per hour, the wages received per hour for overtime, making a total of two hundred fifty-eight dollars and thirty cents ($258.30), the Court is of the opinion has been established by the evidence and should be allowed. The said overtime clearly represents a part of the claimant’s earning capacity.

Section 4, article XI, chapter 129, Revised Statutes of Illinois.

Referring to the expense item in claimant’s bill of particulars for two dollars per week for five weeks, amounting to ten ($10.00) dollars, for a private room for claimant while in the said hospital, the Court is of the opinion that said item is a reasonable expense and materially added to the comfort and aided in the speedy recovery of the claimant and should be allowed in his behalf.

Referring to the item in claimant’s bill of particulars for forty ($40.00) dollars to father and sister by reason of special diet, fruit, flowers, laundry, clothing and supplies, the Court is of the opinion after a careful examination of the record that the said item of forty ($40.00) dollars should be disallowed, as it is clearly established by the record in this case that the said hospital furnished all proper and necessary diet for the claimant, and that the fruit and flowers furnished were luxuries and so far as the evidence discloses the item of laundry, clothing and supplies are not matters which can be charged against the State. It would seem that this item is entirely of a personal and affectionate nature and what was advanced to the claimant by his said father and sister not of a personal nature, was, as a matter of kindness and affection, and cannot properly be charged as an item of expense against the said State. The said item is therefore disallowed.

Referring to the item in claimant’s bill of particulars for the alleged difference in wages from Christmas, 1906, to July 1,1907, by reason of claimant being forced to abandon the trade of carpenter and accept employment of a less laborious nature, which was also a dollar and a quarter per day less remunerative, the said loss is therein estimated as being one hundred fifty-six (156) actual working days at a loss of one dollar and twenty-five cents ($1.25) per day, amounting to a total loss of one hundred ninety-five ($195.00) dollars.

With reference thereto, claimant states in his testimony, that he was examined by a physician since being discharged from the hospital, and there is no intimation that he had not fully recovered, and he further states that he has received no treatment whatever after being discharged from the said hospital. Referring to claimant’s testimony, he was asked the following questions, and answered as follows:

On page 5, “Was your health good after you left the hospital?”

A. “Yes, sir.”

On page 7, “How long did you work at the carpenter trade after you left the hospital ? ’ ’ Answer,4 4 Until last Christmas.”

On page 9 he was asked, “Do you ever have any pain in the place where the operation was performed?” Answer, 44No, sir.”-

The claimant began work at his usual trade at the same pay per diem on or about the first day of October, A. D. 1906, and continued for several months in the same employment as he was engaged in before the said injury, and made no complaint of disability, which would tend to establish that his earning capacity had been impaired on or about or after the first day of October, 1906. It also appears from the record that claimant, after about the middle of October of the year in question, resumed the usual and customary drilling with his military company with the same degree of efficiency exercised prior to said injury.

It appears further from the evidence in this case that claimant, after resuming work on or about October 1, 1906, after the said injury, worked continuously. It is urged that he was forced by reason of the said injury, to accept employment of a less laborious nature. It does not appear from the evidence that claimant necessarily abandoned the carpenter trade on account of the said injury. Claimant says in his testimony the fear which he entertained in regard to doing any heavy lifting, existed only in his mind. The evidence tends to show that claimant had fully recovered from the said injury and operation, and was capable of following his usual trade and calling from Christmas, 1906, to July 1, 1907, and the said item of one hundred ninety-five ($195.00) dollars is therefore disallowed.

Referring to the item in claimant’s bill of particulars for impaired health, earning capacity, mental worry, anguish and permanent disfigurement of body, it appears from the evidence that claimant was temporarily impaired in health, and in his earning capacity after the said injury, and prior to, on or about the first of October, 1906, and that claimant suffered pain by reason of the said injury. The Court is of the opinion that no permanent disfigurement of body has been shown by the proof in this case, and after a thorough consideration of all the evidence and the merits of the said case, the Court finds that the sum of four hundred ($400.00) dollars will compensate claimant for all loss occasioned by reason of the said injury.

It is therefore the conclusion of the Court that the ■claimant is entitled to an award of four hundred ($400.00) dollars.