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    Berthel C. B. Jorgensen v. State of Illinois.

      Opinion filed May 3, 1911.

    1. Respondeat Superior — doctrine of not applicable to State. The doctrine of respondeat superior does not apply to the State.
    ■ 2. Same — State does not act as guarantor of its servants. The State does not undertake to guarantee to any person the fidelity of its officers, servants, employees, appointees or agents, and the State is not liable for injuries resulting from acts or neglects of such officers, servants, employees, appointees or agents.
    3. Jurisdiction — when Court may allow claim. No power is vested in this Court to allow a claim unless the facts show a legal liability.
    Charles W. Hadley, for Claimant.

      ~W. H. Stead, Attorney General, for State.
   In this case the claimant, Berthel C. B. Jorgensen, has filed his petition setting forth that on the tenth day of June, A. D. 1906, and for a period of one year prior thereto, he was employed as a milker upon the dairy farm owned, controlled and conducted by the State at the University of Illinois; that the said claimant was on the said tenth day of June, A. D. 1906, of the age of twenty years and that as such employee he performed services as such milker under the direction, supervision and control of a certain other employee of the State in charge of said dairy farm; that at the time aforesaid and for a period of six months prior thereto, the State owned andi possessed a certain calf on the farm aforesaid, and that the said calf was then and there, afflicted with a dangerous and infectious disease ; that the said employee so in charge of said dairy farm, then and there directed and instructed the claimant to administer medicine to said calf; that the said claimant, following the instructions and directions of the said employee, then and there administered said medicine to said1 calf by opening its mouth and pouring the medicine down the throat of the said animal; that while opening the mouth of said calf, as so directed, the hands of the claimant came in contact with the saliva of said calf, so infected with disease as aforesaid, and that through a break or abrasion of the skin on the hands of the said claimant, the said infected saliva inoculated the claimant with the disease with which the said calf was infected, and the claimant thereby became sick, sore, lame and disordered and so remained for a long space of time; that as a result of said infection, the claimant has lost the use and control of his right arm and is disabled in the use of said arm for the remainder of his natural life.

Claimant further alleges, that at the time he was inoculated with the said disease he was in the exercise of due care and caution for his own safety, and was not informed of the character and nature of the said disease with which the said animal was afflicted, or of the dangers of the employment in which he was engaged.

Claimant also files with his petition a duly authenticated transcript of the evidence taken in this cause, said evidence having been taken and transcribed under an agreement with the Attorney General of the State, and in the manner provided for in the statutes of Illinois. Said evidence, as far as the same applied to the facts connected with the injury received, substantially sustains the allegations of the petition.

To the said petition of the claimant, however, the Attorney General, on behalf of the State, files a general demurrer and as a ground for such demurrer urges, that the said facts are not sufficient in law for the claimant to maintain his action against the State of Illinois, in that, the State does not undertake to guarantee to any persons the fidelity of its officers, servants, employees, appointees or agents, and that the State is not liable for dangers resulting from the acts or neglects of such officers, servants, employees, appointees or agents.

In the adjudication of claims filed against the State of Illinois, this Court, from the nature and purposes of its creation, is limited to a consideration of the question, whether, from the facts alleged and proven, any legal liability attaches to the State and no authority or power is vested in this Court to allow any claim presented for consideration unless, the facts alleged and proven show the existence of such a legal liability.

In Schmidt v. State, 1 Court of Claims Reports, page 76, this Court held, that the law creating it did not undertake to create new liabilities against the State, but simply provided a remedy by which claims might be heard and that this Court, “has no power to make an award in any case unless the facts show a legal or equitable claim against the State.” In passing upon a similar Act, the Supreme Court of Massachusetts, (Murdoch Grate Co. v. Commonwealth, 24 N. E., 855) held, that the said Act “disclosed no intention to create .against the State a new and heretofore unrecognized class of liabilities, but only an intention to provide a judicial tribunal where well recognized, existing liabilities can be adjudicated” and this principle of law has been strictly followed and adhered to by this Court in the adjudication of claims from the creation of the Court to the present.

The demurrer interposed in this cause, raises this question of the legal liability of the State, as deducible from the allegations of the petition, which allegations, for the purposes of such demurrer, must be taken as true. The principle of law urged by the Attorney General in support of the demurrer has been well established by the Supreme Court of the United States, the United States Court of Claims, and the Supreme Courts of various state jurisdictions, including our own. In Gibbons v. United States, 8 Wall., 269, the Court held that “no government has ever held itself liable to individuals for the misfeasance, laches or unauthorized exercise of power by its officers and agents, however gross.” See also United States v. Kirkpat rick, 9 Wheat., 720; Dox v. Postmaster-General, 1 Peters, 318; Lewis v. State, 96 N. Y., 71; Murdock Grate Co. v. Commonwealth, 24 N. E., 855; Bowen v. State, 108 N. Y., 166; Splittorf v. State, 108 N. Y., 205; Hollenbeck v. Winnebago County, 95 Ill., 162; Hedges v. County of Madison, 1 Gil., 567; Town of Waltham v. Kemper, 55 Ill., 346; Symonds v. Clay County, 71 Ill., 355; Hill v. Boston, 122 Mass., 344; Curran v. Boston, 151 Mass., 505; Cooley’s Constitutional Limitations, 240, 247; Story on Agency, 319; Dillon on Municipal Corporations, 761.

This proposition of law, so well established, has been consistently followed by this Court in the adjudication of all claims, that have ever come before it, and applies with equal force to the cause now on hearing. In passing upon the demurrer herein interposed, the Court recognizes the meritorious nature of the claim presented, the unfortunate character of the occurrence and the resulting consequences to the claimant, but being limited, as before stated, to a consideration of the issues involved from the standpoint of the legal liability of the State in such cases, this Court is forced to sustain the demurrer. The demurrer is therefore sustained and the petition dismissed.


source: Caselaw Access Project

license: Public Domain

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    Swan F. Anderson, et al. v. State of Illinois.

      Opinion filed November 4, 1911.

    1. License Fee — when no recovery of. If a license to incorporate under the laws of this State be applied for and issued, hut no further steps be taken to complete the incorporation, the applicants for the license may not have refunded to them the incorporation fee.
    2. Same — retention by State. The retentio i of the fee by the Secretary of State is in no way conditional upon the completion of the incorporation.
    3. Same — not divisible. The incorporation fee is indivisible.
    A. D. Early, for Claimant.
    W. H. Stead, Attorney General, for State.
   Claimant, Swan F. Anderson, in his petition represents that he, with Charles Rystrom and Elmer Lutzhoff, all residents of the eity of Rockford, applied for a license to incorporate the Rockford Tool Company with a capital stock of ten thousand ($10,000.00) dollars, which license was duly issued on the 20th day of January, 1906; that with the application for said license he remitted the sum of fifty-five ($55.00) dollars and received a voucher therefor. Claimant further states, that nothing further was done with reference to completing the organization of the said Rockford Tool Company, under the said application for said license; that immediately after the obtaining of said license they entered into the active manufacture of machinery, in accordance with the object set forth in their application, and carried on said business under the corporate name of Rockford Tool Company, and did so actively and under the full belief that said Rockford Tool Company was fully incorporated, until on or about the 19th day of October, 1910, when they discovered that their incorporation had never been completed.

Claimant further states in his petition, that on, to-wit; the 19th day of October, 1910, he, with two of the supposed stockholders of the said Rockford Tool Company, applied! for and obtained a license to incorporate the Rockford Tool Company with a capital stock of fifty thousand ($50,000.00) dollars; that with the application for said license, they remitted the sum of ninety-five ($95.00) dollars, and received a voucher therefor; that further proceedings with reference to the said application of October 19,1910, were thereafter taken and that a charter was duly issued to the Rockford Tool Company, by the State of Illinois, on said last application, and which charter was filed in the office of the recorder of deeds of Winnebago County, in the State of Illinois, and thereupon said last incorporation became complete.

To this claim, the State of Illinois, by W. H. Stead, Attorney General, filed a géneral demurrer. The general demurrer is sustained by the Court. The Attorney General in his demurrer contends that the claim in the above entitled matter and the matters therein contained, in manner and form as the above is set forth, are not sufficient in law for the claimant to maintain his action against the State of Illinois. The incorporation fee in this case was voluntarily paid. The provision of the statute in reference to the case at bar, paragraph 10a, chapter 53, Hurd’s Revised Statutes, 1908, is as follows:

“All companies and corporations hereafter organized under the laws of the State of Illinois, before they shall be permitted to file any papers in the office of the Secretary of State, or make any application for the purpose of becoming incorporated, shall pay to him fees as follows: All companies having a capital stock of * * # $5,000 shall pay the sum 'of fifty dollars, and all companies having a capital stock of over five thousand dollars shall pay in addition to the said sum of fifty dollars the sum of one dollar for each one thousand1 dollars of capital stock over $5,000.”

From the foregoing provision of law it is clear, that the payment of the said sum of fifty-five dollars was absolutely required by law, and was necessary to be complied with before the Secretary of State could issue a license to the Rockford Tool Company for the subscription of stock. The retention of the fee by the Secretary of State is in no way conditional upon the Commissioners completing the incorporation. In the case of William McKinley, et al. v. State of Illinois, in the Court of Claims, it was decided that an incorporation fee, voluntarily paid, was not divisible, and that the retention of the incorporation fee by the Secretary of State was in no way made conditional upon the Commissioners taking any further steps.

In section 4 of chapter 32, Hurd’s Revised Statutes, 1908, of the State of Illinois, it is provided, that unless the proposed corporation shall be fully organized and proceed to business as provided for in the incorporation Act of the State of Illinois, that such license shall be deemed revoked, and all proceedings thereunder void. In the case at bar, the incorporation license was duly issued' on the 20th day of January, 1906, and the incorporation of the said proposed corporation was never completed under the said license, according to the Incorporation Act of the State of Illinois. The Court has no authority to decide cases contrary to the plain provisions of the law. It is stated in the Incorporation Act of the State of Illinois, that the incorporation should be completed within two years after the date of the issuance of the license; otherwise, the license should be deemed revoked and all proceedings thereunder void.

The Court is bound by the foregoing specific provisions of law, and the demurrer is therefore sustained and the case dismissed. .


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    Capitol Coal Company v. State of Illinois.

      Opinion filed November 23, 1912.

    1. Contracts — no recovery under — when. Claimant seeks to recover fifty cents for each ton of coal delivered at the Power House, in addition to the contract price. Held, that under the constitution, statutes, advertisement, proposal and contract, claimant cannot recover.
    2. Delivery — elements of: a. The time of delivery; b. The quantity to be delivered; c. The place of delivery.
    3. Same — place of. If no place of delivery is appointed in the contract, it is the duty of the seller to ascertain from the buyer where he will receive them. (Bean v. Simpson, 16 Me., 40.)
    Albert Sakenstein, for Claimant.
    W. H. Stead, Attorney General, for State.
   The petition in this case shows, that the claimant is a corporation organized and existing under the laws of the State of Illinois, with its principal office in the city of Springfield, Illinois, and engaged in the business of mining and selling coal; that on or about July 30, 1908, the Commissioners of State Contracts, advertised for proposals “for furnishing bituminous coal * * * for the period beginning October 1, 1908, and ending September 30, 1910. The said coal to be delivered as directed by the Secretary of State, at such time or times and in such quantities as the Secretary of State may direct”; that the petitioner on September 5, 1908, made a proposal in writing “to furnish coal in accordance with the foregoing advertisement for the use of the State of Illinois, from the first day of October, 1908, to the 30th day of September, 1910”, which proposal was accepted by the Commissioners of State Contracts, and a contract was entered into between the commissioners and claimant, in which said advertisement for proposals was referred to, and in which said claimant agreed to furnish coal for the required period upon the terms and in the manner prescribed in the statutes in such cases made and provided; that claimant entered upon the performance of its contract and delivered to the State of Illinois, all the coal that it was directed by the Secretary of State to deliver, the total amount being thirteen thousand twenty-six and sixty-eight hundredths (13,026.68) tons, and delivered it at such- times and in such quantities as he directed; that the Secretary of State directed it to deliver all of said coal at the Power House of the State of Illinois, in the city of Springfield, Illinois; that upon the presentation by claimant of its first bill, it included and asked for the payment of fifty cents (50c) per ton for delivery at said Power House, over and all ove the contract price, but, that the Secretary of State refused to so include it, claiming, that under the contract, claimant was bound to deliver the coal at said Power House of the State of Illinois.

The Attorney General, representing the State of Illinois, has filed a demurrer to this claim.

The question then submitted for our decision is, whether the claimant is entitled to recover from the State of Illinois fifty cents (50c) per ton for delivering the coal at the said' Power House, taking into consideration the advertising for proposals, the proposal of claimant, the contract and the statutes of the State of Illinois.

The advertisement for proposals provides as follows, “for furnishing bituminous coal of the following grades, etc., * * * the said coal to be delivered as directed by the Secretary of State.” The proposal of claimant provided as follows: ‘ Capital Coal Com-. pany propose to furnish coal in accordance with the’ foregoing advertisement, etc.” The contract provided among other things as follows: “The said party of the first part agrees to furnish coal for the State of Illinois * * * upon the terms and in the manner prescribed in the statute, in such cases made and provided.”

The constitution and laws of the State of Illinois provide, that the fuel furnished for the use of the State should be let by contract to the lowest responsible bidder, and that the commissioners shall advertise in a daily paper, published at Springfield, for the proposals to furnish fuel for the State. Section 55, chap. 127, Hurd’s Statute 1911, page 2195 provides, “on the delivery of any fuel, the Secretary of State shall examine the same as to quality and quantity and if he finds the same to be in accordance with the contract, he shall give his receipt therefor, and if it is not according to the contract he shall reject it. He shall keep an account of all fuel delivered to him and by him furnished to the State House and several officers to which fuel may be furnished.” From the above quotations, from the advertisement, the proposal, the contract and the statutes, it is clear, to our mind, that the contract provides for the furnishing of the coal and also for the delivery of the coal as directed by the Secretary of State.

Bringing the coal to the tipple by the claimant, might perhaps, be said to be a furnishing of the coal, but could not be said to be a delivery to the State of Illinois. Section 55 provides for the inspection of the coal as to quality and quantity on the delivery of any fuel. This section clearly provides for the delivery of the fuel and does not contemplate that the Secretary of State shall inspect the fuel, at the tipple of the claimant, and if he finds the same to be in accordance with the contract give his receipt therefor.

From the foregoing we think the only fair construction to be placed upon the contract in question is, that the claimant was under obligation to deliver the coal in question at the Power House of the State of Hlinois, in Springfield, at the prices specified in its proposal and, that it was not entitled to make an additional charge for so delivering the coal.

The advertisement for bids was open to all bidders, without regard to location of their place of business, and all bidders were asked to make proposals for the same thing, i. e., “For furnishing bituminous coal * * # for the period beginning October 1, 1908, and ending September 30, 1910; the said coal to be delivered as directed by the Secretary of State at such time or times and in such quantities as the Secretary of State may direct.” If the contention of the claimant is the law, then all bidders would not be bidding on the same thing. If the proposal of the claimant means furnishing coal at the tipple of the claimant, then a like proposal by a dealer in coal in the city of Chicago, would mean that he would furnish the coal proposed at his coal yards in the city of Chicago and the Secretary of State would be compelled to inspect it there. This contention would be absurd.

The cases of Smith v. Gillette, 50 Ill., 290, and Bosworth v. Frankberger, 15 Ill., 509, cited by counsel for claimant, are not in point, for the reason, that the contracts in question in those cases did not provide for delivery, whereas, in the case at bar the contract was to furnish and deliver.

In making a delivery three elements are necessary:

(1) The time or times of delivery.

(2) The quantity or quantities to be delivered.

(3) The place of delivery.

(1) The time or times of delivery, and (2) the quantity or quantities to be delivered are specifically placed under the direction of the Secretary of State. It is unnecessary to state (3) the place of delivery, for it was evident from the fact, that it was to be furnished and delivered for “the use of the State of Illinois,” that said coal was to be delivered to the State of Illinois, and “under the direction of the Secretary of State of the State of Illinois.”

In Bean v. Simpson, 16 Me., 49, it is held that if no place is appointed in the contract for the delivery of specific articles, it is the duty of the seller to ascertain from the buyer where he will receive them. 35 Cyc., 172.

Where the goods are bulky and cumbersome and no place of delivery is fixed, the seller should ask the buyer to appoint the place of delivery. 35 Cyc., 173, citing Allen v. Woods, 24 Pa. State, 76; Mallory v. Lyman, 4 Chandl. (Wis.), 143.

We are therefore of the opinion, that the contract in question required the claimants to deliver the coal in question to the Power House of the State of Illinois, upon the direction of the Secretary of State, and that claimant is not entitled to any additional compensation for so delivering it; that in consequence the demurrer of the defendant, the State of Illinois, is sustained and the case is dismissed.


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    Frederic F. Norcross and Harold B. Wrenn, Executors of the Last Will of John H. Wrenn, Deceased, v. State of Illinois.

      Opinion filed November 23, 1912.

    1. Inheritance Tax — refund of — appeal. Claimant, in order to secure a refund of an inheritance tax erroneously fixed by the county judge and paid under protest, should appeal from the order of the judge fixing the tax, to the county court, and obtain a decision in his favor.
    2. Same — demand. Demand for a refund of the tax should be made on the State and county treasurers.
    John Y. Norcross, for Claimant.
    W. H. Stead, Attorney General, for State.
   The evidence in this case shows, that on the 13th day of May. 1911, John H. Wrenn died testate at the city of Chicago, Cook County, Illinois, and1 that the plaintiffs herein were on the 27th day of June, A. D. 1911, duly appointed executors of the last will and testament of said decedent and are now acting as such executors; that after the death of said decedent David E. Shanahan was appointed by the county court of Cook County inheritance tax appraiser, and in his report found that under paragraphs “A and B” of the eighth clause of said last will and testament, the property therein devised and bequeathed was liable to the payment of an inheritance tax of fifty-six hundred twenty-nine and 92-100 ($5,629.92) dollars; that said appraiser filed a written report of his appraisal in the office of the county judge of Cook County, and on the tenth day of November, 1911, the Honorable John E. Owens, judge of said court, fixed the tax upon the various estates created by said will, in accordance with the report of said appraiser, at the sum of twenty-one thousand seven hundred ninety-four and 26-100 ($21,794.26) dollars, which sum included the sum of fifty-six hundred twenty-nine and 92-100 ($5,629.92) dollars, so assessed against the .property included in paragraphs “ A and B” of said eighth clause. On the tenth day of November, 1911,. the plaintiffs paid to the county treasurer of Cook County, Illinois, the full amount of tax so assessed, less five per cent thereof, according to the law, which money was paid under protest, duress and compulsion and not voluntarily, and that said payment was made erroneously.

That afterwards, said plaintiffs appealed to the county court of Cook County, and the county court of Cook County, upon such appeal, found that said executors had made a total erroneous payment in excess of the tax assessable under paragraphs “A and B” of the eighth clause of said will, of thirty-two hundred eighty-three and 50-100 ($3,283.50) dollars, and made a final order to that effect; that afterwards, an application was made by said plaintiffs on William L. O’Connell, county treasurer of Cook County, and upon E. E. Mitchel, State Treasurer of the State of Illinois, for the money over-paid amounting to thirty-two hundred eighty-three and 50-100 ($3,283.50) dollars, and said William L. O’Connell, county treasurer of Cook County, Illinois, also notified the State Treasurer of Illinois, of the demand for repayment, all ’of which was done within two years of the date of making said payment.

These facts bring this case clearly within section ten, of an Act to tax gifts, legacies, inheritances, transfers, appointments and interests in certain cases, and to provide for the collection of the same and repealing certain Acts therein named; approved June 14, 1909, in force July 1, 1909, and the amount of said tax, so erroneously paid, to the State Treasurer, thirty-two hundred eighty-three and 50-100 ($3,283.50) dollars, should be refunded by the State Treasurer to the said plaintiffs. And, inasmuch, as the State Treasurer has not repaid the amount, and has represented to the claimants, that there is no appropriation from which such refund could be made, and, inasmuch, as there is no ether provision of law, that would enable the claimants to recover the amount so erroneously paid, it is the opinion of this Court, that the claimants are entitled to an award; their claim for thirty-two hundred eighty-three and 50-100 dollars is therefore hereby allowed.


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    Sarah Brockway Smith v. State of Illinois.

      Opinion filed November 23, 1912.

    1. Trespass — damage by National Guard. Claimant’s property, consisting of plants, shrubs, flowers, trees, pipes and plumbing, was damaged by the Illinois National Guard while conducting a sham battle. Held, that claimant is entitled to an award covering the amount of her damages.
    - 2. Jurisdiction — to hear military claims. Section 3 of the Act creating the Court of Claims provides, that it shall hear and determine all unadjusted and controverted claims against the State arising out of the military power of the State when called into action for the preservation of the public peace or order, or for instruction in camp, etc.
    Joseph Y. Graff, for Claimant.
    W. H. Stead, Attorney General, for State.
   The declaration and evidence in this case show that on the 26th day of August, A. D. 1910, the Illinois National Guard was in encampment for instruction pursuant to the laws of the State of Illinois, in the county of Peoria and State of Illinois, and that they did then and there trespass on the premises of the claimant and damage and destroy certain plants, shrubs, flowers and trees thereon in the sum of two hundred fifteen and 50-100 ($215.50) dollars, and likewise damaged and destroyed certain pipes, plumbing and fittings in the sum of twelve and fifty-two one hundredths ($12.52) dollars, making a total damage of two hundred twenty-eight and 2-100 ($228.02) dollars.

The trespass in question was committed without any authority from the claimant while the National Guard was engaged in a sham battle; they moved in a body over the premises of the claimant and destroyed property as charged in the declaration. The amount of the damage is shown by. competent proof to be two hundred twenty-eight and 2-100 ($228.02) dollars. The Act creating the Court of Claims, approved May 16, 1903, in force July 1, 1903, provides, among other things, as follows: Section 3 # # * “and it shall be the dirty of said Court to hear and determine the following matters * * * 3d, all unadjusted and controverted claims against * * * the military power of the State when called into action for the preservation of the public peace or order, or for instruction in camp arising out of any contract, expressed or implied, or in tort or for any damages, whether' liquidated or unliquidated, or any other claim or demand whatsoever.”

The facts as above set forth are uncontroverted' and in the opinion of the Court bring this case clearly within the provisions of section three above quoted, and claimant is therefore entitled to an award. Her claim for two hundred twenty-eight and 2-100 ($228.02) dollars is therefore hereby allowed.


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    B. F. Green v. State of Illinois.

      Opinion filed November 23, 1912.

    Statute of Limitations — claim must be filed within two years from date of accrual. This statement of claim shows that injuries to claimant were received in 1904, and the claim was not filed with the Auditor of Public Accounts until 1909. Held, that the same is barred by the two year limitation statute.
    Zimmerman and Rineliart, for Claimant.
    "W. H. Stead, Attorney General, for State.
   The petition in this case shows that claim was filed for injuries received by claimant on or about the fifth day of December, 1904. The claim was filed in the office of the Auditor of Public Accounts on December 30, 1909, more than five years after the cause of action accrued. The State of Illinois has interposed a plea of the Statute of Limitations.

Rule eight of the rules of this Court is as follows: “If it appears on the face of the declaration that the claim is barred by any Statute Limitations and it does not further appear on the face of the declaration that some disability recognized by law existed which prevented claimant from filing his declaration within the limitations, it will be considered that no such disability existed, and the cause may be dismissed on motion.”

■ Paragraph 14, chapter 83, of the Statutes of Illinois, provides: “That action for damages for an injury to a person * * * shall be commenced within two years next after the cause of action accrued.”

It does not appear on the face of the declaration that some disability recognized by law existed which prevented claimant from filing a declaration within the limitations. The plea of the Statute of Limitations having been interposed, it is the opinion of this Court that the claim is barred by the Statute of Limitations, and that the claimant is not entitled to an award. His claim is therefore refused.


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    James T. Burns v. State of Illinois.

      Opinion filed November 30, 1912.

    1. Military Service — defense of member in. Where a member of the National Guard or Naval Reserve is prosecuted by civil or criminal action on account of any act done by such member in the performance of his military duties, the expenses of his defense shall be borne by the State.
    2. Attorney General — duty to defend. In cases of this character, the Attorney General may defend the suit either personally or by one of his assistants, or, if not, then he shall approve the selection' of an attorney to conduct the defense.
    3. Same — to approve expenses. Vouchers covering items of expense are to be approved by the Attorney General and paid by the Adjutant General.
    4. State Affairs — Jiow conducted. Departments of the State government must be conducted upon business lines and each department may adopt reasonable rules and regulations for the proper transaction of the business pertaining to that department.
    Burns and Burns, for Claimant.
    W. H. Stead, Attorney General, for State.
   The claimant in this cause seeks reimbursement for moneys expended by him as an attorney for Joseph B. Klein, a member of the Fifth Infantry, Illinois National Guard, who was indicted for murd’er by a grand jury in Kankakee County and subsequently tried on said charge in Ford County, upon a change of venue. The indictment was based upon the killing of one, Earl Nelson, by the said Klein, in August of 1908, while said Klein was in active service as a militiaman at the time of the Springfield riots, and while said Fifth Infantry was embarking from Kankakee for Springfield to assist in quelling the disorder.

Claimant alleges that the Attorney General, under the provisions of the Military Code (see. 9, art. XXII) had appointed claimant to assist in the defense of said Klein at said trial, that certain witnesses had to be brought from Kankakee to Ford County to testify in behalf of the said Klein, that these witnesses were not possessed of the necessary private funds to pay their railroad fare and hotel expenses, and that under instructions of the Attorney General’s office, claimant advanced the money needed to meet the expenses of said witnesses, amounting to thirteen dollars; that subsequently claimant filed a claim for reimbursement for said amount and said claim was refused. To secure said reimbursement, claimant has brought suit in this Court.

Owing to the fact that the expenses of taking testimony in this cause would1 exceed the amount of the claim, it is stipulated by the Attorney General, that the material facts alleged in the declaration shall be considered as if duly proven by the claimant by depositions regularly taken.

Section 8 of article XXII of the Military Code provides, that where any member of the National Guard is prosecuted criminally for any act committed by said member, while in the performance of military duty, that all the expense of the defense, “including attorney’s fees, witness fees for the d'efense, defendant’s court costs and all costs for transcripts of records and abstracts shall be paid by the State, provided, that the Attorney General shall be first consulted in regard to and approve of the selection of the attorney for the defense.”

Section 9 further provides, that “the expense of such defense, as provided for in the preceding section, shall be paid by the Adjutant General out 'of the military emergency or either military fund of the State upon vouchers and bills approved by the Attorney General. ’ ’

The statute here points out a definite remedy for the payment of expenses incurred in defense of militiamen in criminal cases. Vouchers are to be made out, approved by the Attorney General, and paid by the Adjutant General.

There is no claim that in the case at bar there were no funds in the department to meet these expenses, but the declaration sets forth that the items in question were rejected by the Adjutant General. The reason given for the rejection, as stated by claimant, was, that “claimant could not or did not apportion these items among the witnesses so that same could be divided from their witness fees.”

It is not apparent from the declaration why there was an impossibility of an apportionment of these expenses between witness fees on the one hand, and railroad fare and other incidentals on the other. This would seem to be a mathematical proposition which could be easily solved as the data must have been in the possession of claimant. If claimant omitted to so apportion the expenses or simply made a claim for a lump sum without itemizing the same, or was unable to itemize the expenses on account of not having preserved the data, this is claimant’s misfortune.

The statute specifically mentions witness fees and other items of expenses and differentiates them from general expenses, such as the claim in this cause.

All departments of the State service must be conducted upon business lines, and must adopt reasonable rules and regulations for the proper transaction of the business pertaining to that department. In adopting a rule, that expenses for the defense of militiamen under criminal charges should be properly itemized and apportioned, the Adjutant General’s office is adopting a reasonable rule of procedure, that is substantially sanctioned by the statute.

This Court does not deem it wise, therefore, to interfere with the methods of business procedure in the various departments of the State service. The remedy in this cause is with the Adjutant General and the matter of this claim should be adjusted by him. The claim is therefore rejected.


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    Franklin A. Denison v. State of Illinois.

      Opinion filed November 30, 1912.

    Militaey Sebvice — when award will be made for injuries received in. Claimant was injured while in the performance of his duties in the military service of the State at Camp Lincoln. Held, that he is entitled to an award in accordance with the provisions of the Military and Naval Code.
    John L. Melnemey, for Claimant.

      W. H. Stead, Attorney General, for State.
   Franklin A. Denison, claimant in the above entitled cause, was a member of the National Guard of the State of Illinois. On the 29th day of July, A. D. 1904, a portion of the said National Guard, by order of the Governor of the State of Illinois, was at Camp Lincoln, in the city of Springfield, Illinois. The claimant was in camp in obedience to orders from his superior officers, and while under orders and in service upon an inspection and review of the Eighth Regiment, Illinois National Guard, was injured by reason of the horse upon which he was riding becoming unruly and ungovernable. The claimant was thrown violently from the horse upon the ground, causing a severe injury. It is established by the evidence, that the injury sustained by Major Denison, was two fractures of the collar bone and a fracture of the head of the humerus and bruises and pain, loss of time and suffering incident thereto. It appears from the evidence, that Major Denison was unable to follow his usual occupation for a period of four months, and, that claimant suffered great pain and incurred considerable expense in reducing the said fractures and in his effort to fully recover from the said injuries. The injuries in question were no doubt severe and painful. The claimant appears to have been in the exercise of ordinary care for his own safety.

We are of the opinion that the evidence establishes that claimant has a legal claim against the State of Illinois, for compensation and assistance, as is provided for by statute of the State of Illinois, (See Hurd’s Revised Statutes, chapter 129, paragraph 93), that ‘‘In every case where an officer, soldier or seaman of the Illinois National Guard or the Naval Reserve of Illinois, shall be killed or wounded, while performing his duty as an officer, soldier, or seaman, in pursuance of lawful orders from the Command'er-in-Chief, said officer, soldier or seaman, or his legal heirs, shall have a claim against the State for financial help or assistance, and the State Board of Claims shall act on and adjust the same as the merits of each case may demand.”

In consideration of the foregoing, claimant is allowed the sum of six hundred ($600.00) dollars in full settlement and compensation for the injuries and expenses incident thereto.


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    William Harold Erwin, by J. D. Erwin, his father, AS next friend, v. State of Illinois.

      Opinion filed November 30, 1912.

    1. Respondeat Superior — doctrine of not applicable to State. The doctrine of respondeat superior is not applicable to the State.
    2. Res Adjudicata — effect of refection of claim. If the Court of Claims reject a claim, such rejection concludes the claimant, unless the Court otherwise directs.
    Kraus, Alsehuler and Holden, for Claimant.
    W. H. Stead, Attorney General, for State.
   The petition in this case discloses that the claimant, William H. Erwin, was a student in the College of Agriculture at the State of Illinois; that he was employed by one of the instructors at the College of Agriculture to work at the beef cattle bams, and that while so employed and assisting in caring for the cattle, under the direction of the Superintendent, he was severely injured, as the claimant alleges, by reason of the negligence of the Superintendent.

The State, by the Attorney General, has filed a demurrer, which directly raises the question as to the liability of the State, for the negligence of its officers, servants or agents. The question involved in this demurrer has been decided adversely to the claimant in a great many cases in this Court. The points made by attorneys for claimant in their argument have been decided adversely to their contention in the case of Schmidt v. State of Illinois, I. C. C. R., 76.

In our opinion the claimant does not show a legal or equitable claim against the State of Illinois. The demurrer is therefore sustained and the claim dismissed.

Section 7 of the Act creating the Court of Claims is as follows: “In case said Court shall reject any claim, so filed1 as aforesaid upon the hearing thereof, such rejection: shall conclude, the claimant unless said Court shall otherwise direct.” Under the power thus conferred upon us by the above section, we direct that claimant shall not be concluded by the above finding.


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    John W. Hinchscliff, by his father and next friend, Charles M. Hinchscliff v. State of Illinois.

      Opinion filed November 30, 1912.

    1. Practice — claim by minor — how exhibited. Where a minor seeks an award, the claim should be exhibited in the name of the minor by his guardian; if he have a guardian, and if not, then by his next friend.
    2. Respondeat Superior — doctrine of not applicable to State. The doctrine of respondeat superior is not applicable to the State, and the State is not responsible for the torts of its officers, employees or agents.
    3. Officers — Park Commissioners are. Park Commissioners, appointed by the Governor, by and with the advice and consent of the Senate, are' officers.
    Gratty Bros, and Jarvis and Chas. Knudson, for Claimant.
    W. H. Stead, Attorney General, for State.
   Claimant in this cause is a minor of four years of age, and asks damages, by his father and next friend, for injuries received July 14, 1907, while said claimant was walking with his parents along one of the footpaths in Humboldt Park, in the city of Chicago.

In his declaration, claimant alleges, that at the time the said claimant was walking along said footpath, in said park, one of the openings at the foot or base of one of the electric arc poles, in said park was negligently left open, exposing the electric wires which supply the electric current to the arc light above; that claimant, being ’of tender years and not appreciating the danger, placed his arm through said opening and came in contact with the said wires, and that he received a severe electric shock, as a result of said contact and was severely burned and permanently injured, disfiguring him for life, and incapacitating him in future years from earning a livelihood. For these injuries so sustained, claimant brings this action against the State and seeks damages.

The principle of law is so well established in cases of this class, that it is hardly necessary to more than refer to it. In State Bank v. State, 1 Court of Claims Reports, 158, 164, this Court said:

“Public or State officers with only certain powers and duties enjoined upon them by the statutes do not come within the doctrine of respondeat superior. Applying this rule, the South Park Commissioners being merely appointive officers, with certain statutory powers are mere subdivisions of the government. They are mere assistants to the State in the exercise of its functions; not created at their own instance and request, but for the purpose of aiding and assisting the sovereign power of the State in carrying on the functions of the government, and they are not liable for the negligence or tortious acts of its servants.” If, then, the South Park Commissioners are not liable for the negligent acts of, the servants appointed by them, there could be no liability devolving upon the State, which appoints these commissioners.

It is further a well established rule in this and all other courts, that the State is not liable for the negligence, torts, misfeasances or omissions of duty of its officers, agents or servants, for it does not guarantee the fidelity of the agents or officers it employs to carry on its governmental functions.

In view of these holdings, there can be no liability on the part of the State in the cause at bar and the claim is therefore rejected.


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    Illinois Trust and Savings Bank, as executor of the Last Will and Testament of Harriet G. McVicker, Deceased, v. State of Illinois.

      Opinion filed November 30, 1912.

    1. Inheritance Tax — refund where debts are proven after distribution. Claimant asks á refund of an inheritance tax and bases its claim upon the fact that debts were proven against the estate after the distribution of the legacies, from which the inheritance tax had been deducted, and the legatee was required to refund a portion of the legacy. Held, that claimant is entitled to refund of the tax so erroneously paid.
    2. Statute — section 8. Section 8 of the inheritance tax law provides, that whenever debts shall be proved against the estate of a decedent after distribution of legacies, from which the tax has been deducted, and the legatee is required to refund any portion of the legacy, a portion of said tax shall be repaid to him by the executor or administrator, if said tax has not been paid into the State or county treasury, or by the county treasurer, if it has been paid into the county treasury. In this claim the money had been paid into the State treasury; hence claimant’s only remedy is resort to the Court of Claims.
    James C. Hutchins, for Claimant.
    W. H. Stead, Attorney General, for State.
   This claim is for a refund of inheritance tax, and is based upon the fact that debts were proven against the estate of decedent after the distribution of legacies from wbicb the inheritance tax had been deducted, and the legatee was required to refund a portion of the legacy.

The evidence in this case discloses that a total tax against the residuary estate of said deceased was fixed at nineteen hundred forty and 75-100 ($1,940.75) dollars ; that un June 12,1906, the claimant, as executor, paid the inheritance tax as fixed in said estate in the sum of twenty-three hundred eighty-three and 3-100 ($2,383.03) dollars, to the county treasurer of Cook County, Illinois, as required by law, which sum included said sum of nineteen hundred forty and 75-100 ($1,940.75) dollars, assessed against said residuary estate; that at the time said inheritance tax was fixed and paid, as above stated, there was pending against the estate of said Harriet G. McVicker, deceased, the claim of one L. C. H. E. Zeigler, in the sum of one hundred ten thousand ($110,000.00) dollars, which claim was duly allowed and the judgment affirmed by the Supreme Court of the State of Illinois, in the sum of one hundred thousand ($100,000.00) dollars on June 8, 1910; that on July 1, 1910, said claimant, as trustee, transferred to itself, as executor, property and cash of the value of ninety-four thousand ($94,000.00) dollars. This sum transferred to said' executor, together with the sum remaining in the hands of the executor, was used by said executor to pay the said Zeigler judgment; that said executor did, on July 10, 1910, pay to said Zeigler, in satisfaction of said judgment, interest and costs, the sum of one hundred thirteen thousand four hundred eighty-two and 77-100 ($113,482.77) dollars.

Section eight of the law imposing the inheritance tax, in force July 1, 1909, provided, that whenever debts should be proved against the estate of a decedent after distribution of legacies from which the inheritance tax has been deducted in compliance with this Act, and the legatee is required to refund any portion of the legacies, a portion of the said tax shall be repaid to him by the executor or administrator, if the said tax has not been paid into the State or county treasury, or by the county treasurer, if it has been so paid.

In this case the county treasurer had paid the money received from said estate into the State treasury, and consequently the same was not in his hands at the time that the judgment was affirmed against said estate.

The claimant presented its claim for a repayment to it of a proper portion of said inheritance tax to the county treasurer of Cook County, and said claim was refused by the county treasurer on the ground that there were no funds applicable to the repayment of said amount; that said claim was thereafter, on or about the eighth day of January, 1912, presented to the Treasurer of the State of Illinois, and demand was made upon said State Treasurer for the repayment to the claimant of the >sum of one thousand ($1,000.00) dollars, the proportion of the tax so paid1 which ought to be refund'ed as aforesaid; that on or about the eleventh day of January, 1912, the said State Treasurer, of the State of Illinois, refused the said demand upon the ground that there were no moneys applicable to the repayment of said sum.

From the facts in this case claimant is clearly within the meaning of paragraph 8 of the statutes in reference to tax on gifts, legacies and inheritances, approved June 14, 1909; in force July 1, 1909. Section 8 does not seem to make any provision as to how said tax shall be repaid to the executor or administrator, if the same has been paid by the county treasurer to the State Treasurer, hut from the facts in this case it is clear, that the residuum of this estate has been reduced by the sum of one thousand ($1,000.00) dollars, by the payment of the Zeigler judgment, and consequently the amount of the inheritance tax, which should have been paid, reduced by one per cent of one hundred thousand ($100,000.00) dollars, which is one thousand ($1,000.00) dollars, and there is therefore, now one thousand ($1,000.00) dollars held by the Treasurer of the State of Illinois, which rightfully belongs to the claimant. Claimant has complied, as far as within its power, with all laws of the State of Illinois, in reference to securing the repayment of this sum and has been unsuccessful in procuring it to be repaid.

The amendment of the claim which asks for an additional amount of ninety-three and 73-100 ($93.73) dollars, cannot be allowed by this Court as the application for refund, which was made to the county and State Treasurer, was for the sum of one thousand ($1,000.00) dollars, and inasmuch, as no claim has been presented to the county or State Treasurer for the additional amount of ninety-three and 73-100 ($93.73) dollars, this Court cannot allow the same for the reason, that the statute in reference to an application for the refund of inheritance taxes erroneously paid must be made to the county or State Treasurer within two (2) years of the time of payment of the same.

From all of the facts in this case, it is the opinion of this Court, that the contention of claimant, as to the ninety-three and 73-100 ($93.73) dollars, should be rejected, and it should be sustained as to the sum of one thousand ($1,000.00) dollars. Its claim therefore for one thousand ($1,000.00) dollars is hereby allowed.


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    Josephine Johnson v. State of Illinois.

      Opinion filed November 30, 1912.

    1. Respondeat Superior — rule of does not apply to State. The rule of respondeat superior is inapplicable to the State, and the State is not liable for the negligence of its officers and agents.
    2. Court op Claims — not a bureau of charities. The Court of Claims is not a bureau of charities, but a Court, and must determine all claims in accordance with legal principles.
    3. Jurisdiction — Act creating Court did not increase liability of State. The law creating the Court of Claims did not undertake to create new liabilities against the State, but merely provided a means by which claims against the State could be heard.
    G. A. Shallberg, for Claimant.
    W. H. Stead, Attorney General, for State.
   The claim in question was filed to the October Term, A. D. 1911. Claimant seeks to recover for an injury received while in the employ of the State as a nurse at the State Hospital for the Insane, at Watertown, the injury in question being the result of a blow upon the head struck by a patient under claimant’s charge and care as such nurse, Clara Weaver, who was violently insane, having committed the assault.

The State of Illinois, by William H. Stead, Attorney General, filed a demurrer to the said claim. The said claimant filed her claim with the Auditor of Public Accounts on the first day of May, A. D. 1911, alleging that she had sustained damages to the amount of five thousand ($5,000.00) dollars.

It has been frequently held that the State is not liable for the negligence of its officers and agents. In Oliver v. State, I. C. C., page 218, this Court said: “The Commission of Claims is not a bureau of charities, but a Court, and under the law creating it must determine all claims in accordance with legal principles.”

In Tierney v. State, 1 C. C., 279, on page 281, this Court expressed itself in the following language, to-wit: * * It is our understanding that in the use of the language, to determine the same according to the principles of equity and justice, is meant and used with a legal signification, and that this Commission has no power to make an award in any case, unless the facts show a legal or equitable claim against the State. We do not believe it was the intention of the legislature to leave it discretionary with the Commission to make an award in favor of the claimant, regardless of the question as to whether or not he had a legal claim against the State.”

The law applicable to this case has heretofore been fully discussed. In the case of Henke v. State, it was decided by this Court, on September 29, 1906, that the State is not liable, for the misfeasance, torts, wrongs, negligence or omissions in the duty of its officers or agents, for it does not undertake to guarantee to any person the fidelity of those it employs.

In Schmidt v. State, Court of Claims Reports 1, page 76, this Court held that the law creating it did not undertake to create new liabilities against the State, but simply provided a remedy by which claims might be heard and that this Court “has no power to make an award in any case unless the facts show a legal or equitable claim against the State.” The demurrer filed in the said cause raised the question of a legal liability on the part of the State. The declaration and record in the above case does not disclose any cause of action against the State, and the claim is not well founded in law, and the demurrer is therefore sustained.


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    Charles Krueger v. State of Illinois.

      Opinion filed November 30, 1912.

    1. Military Service — when award will be made. Claimant, while in the service of the State as a member of the National Guard, was poisoned by coming into contact with poison ivy, and after returning from said encampment was unable to labor for a number of days. Held, that claimant is entitled to recover for time lost.
    2. Jurisdiction — to hear military claims. The Military Code provides, that where an enlisted man is injured while performing his duty under orders of the Commander-in-Chief, he shall have a claim against the State for financial help or assistance, and the Court of Claims shall act on and adjust the same, as the merits of the case may demand.
    Bums and Bums, for Claimant.
    W. H. Stead, Attorney General, for State.
   Claimant in this cause was a regularly enlisted man of Company L, Third Infantry, Illinois National Guard, in which company he has served for ten years. He alleges in his declaration, that while in regular encampment at Camp Deneen, in Springfield, in August of 1910, his company was ordered to make certain marches and maneuvers throughout the surrounding country, and, that while taking part in these maneuvers he came in contact with certain poison ivy and was poisoned thereby; that as a result of said poisoning he was caused great pain and was disabled during the remaining period of encampment and for seventeen days after returning to his home; that during said seventeen days he was unable to follow his regular employment; that he lost fifteen working days thereby and that his regular rate of wages was two dollars per day.

Claimant further alleges, that under paragraph 153, chapter 129, Revised Statutes of Illinois, the Adjutant General’s department allowed him twenty-two dollars and ten cents, being one-half his active service pay during his disability, and twenty-three dollars for physician’s services during said period. He now makes claim for the additional sum of seven and 90-100 dollars, being the difference between thirty dollars (his loss of fifteen working days at two dollars per day) and the twenty-two dollars and ten cents allowed him by the Adjutant General’s Department.

Owing to the fact that the cost of taking evidence would exceed the amount of the claim herein, it has been stipulated of record by the Attorney General, that the facts as stated in the declaration can be proven, and! are to be considered by this Court the same as if they had been duly proven by depositions taken as provided by law.

In paragraph 154 of the Military Code, it is provided, that where an enlisted man of the National Guard, shall be injured while performing his duty, in pursuance of orders from his Commanider-in-Chief, he shall have a claim against the State for financial help or assistance, and the Court of Claims shall act on and adjust the same as the merits of each case may demand.

The facts as stated in the declaration being admitted of record in this cause, under the provisions of paragraph 154 of the Military Code, the claimant herein is entitled to an award and award is so made to the amount of seven and 90-100 dollars.


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    Thomas O’Brien v. State of Illinois.

      Opinion filed November 30, 1912.

    Respondeat Stjperiob — doctrine of not applicable to State„ The doctrine of respondeat superior does not apply to the State. •
    Green and Palmer, for Claimant.
    W. H. Stead, Attorney General, for State.
   This is a claim filed by Thomas O’Brien, for injuries received by him while employed as a helper and. general utility man in the department of engineering at the University of Illinois,. situated in Urbana, in. the county of Champaign, and State of Illinois. The claim filed charges that injury was occasioned by reason of negligence in the construction and maintenance of a gutter and driveway, on the grounds belonging to the said university.

The facts relied upon are set out in full in the claimant’s declaration and it is not necessary to repeat them here.

The Attorney General has filed! a demurrer to the claimant’s declaration, and in support of his demurrer has argued that the State is not liable for the negligence of its officers and employees in the construction or maintenance of said driveway and grounds.

This Court has heretofore held in numerous cases, that the State could not be held responsible for the negligence or misconduct of its subordinate officers, agents or servants. See Schmidt v. State of Illinois, 1 Court of Claims Report, page 76, and cases therein cited. We see no reason to change the former ruling of this Court.

It is therefore the opinion of the Court, that claimant has no legal claim against the State of Illinois, and the demurrer is sustained and the claimant’s bill is dismissed.

Section 7 of the Act creating the Court of Claims, is as follows: “In case said Court shall reject any claim, so filed as aforesaid, upon the hearing thereof, such rejection shall conclude the claimant, unless said Court shall otherwise direct.” Under the power thus conferred upon us by the above section, we direct that claimant shall not be concluded) by the above finding.


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    Henry Pryor v. State of Illinois.

      Opinion filed November 30, 1912.

    Respondeat Superior — doctrine of not applicable to State. The doctrine of respondeat superior does not apply to the State.
    A. L. Williams, for Claimant.
    W. H. Stead, Attorney General, for State.
   The petition filed in this ease discloses that Henry Pryor while confined in the penitentiary at Joliet, Illinois, and while working in the capacity of a laborer on the rock qnarry, was injured by an explosion of dynamite. To this claim the State, by the Attorney General, has filed a general demurrer, which raises the question as to the sufficiency of the claim as filed. The question raised has been frequently decided by this Court. The case of Oscar Alexander v. State of Illinois, 1 C. C. R., p. 214, was a claim filed by an inmate of the same penitentiary for an injury received while working at a saw. To this claim a demurrer was filed and sustained and claimant’s bill dismissed.

We see no reason for making any different holding in this case. The demurrer is therefore sustained, and the claim dismissed.

Section 7 of the Act creating the Court of Claims, is as follows: “In case said Court shall reject any claim, so filed as aforesaid, upon the hearing thereof, such rejection shall conclude the claimant, unless said Court shall otherwise direct.”

Under the power thus conferred upon us by the above section, we direct that claimant shall not be concluded by the above finding.


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    Union Boiler Tube Cleaner Company, for the use of the Union National Bank of Pittsburg, v. State of Illinois.

      Opinion filed November 30, 1912.

    1. Contracts — payment by installments. Claimant contracted ■with the Board of Managers of the Illinois State Reformatory for the installation of a tube cleaning device, and in pursuance thereof installed the same. Payments were to he made in installments. JSfo complaint was made that the device was not satisfactory. After several payments had been made, further payment was refused. Held, that claimant is entitled to an award for the unpaid balance of the contract price.
    2. Interest — State not liable for. Since the contract did not specifically provide for interest on deferred payments, none will be allowed.
    A. C. Norton, for Claimant.
    W. H. Stead, Attorney General, for State.
   On September 28, 1897, claimant in this cause entered into a written contract with the Illinois State Reformatory, at Pontiac, Illinois, by its Board of Managers, for the installation and use in said reformatory of a certain tube cleaning device, of which said claimant was patentee.

This contract was in the form of a lease with power to purchase. Under this contract, the said reformatory was to pay the sum of $200 at the date of execution of the contract, and $200 annually until the sum of $1,500 was paid, when the said device was to become the absolute property of the reformatory.

On October 1, 1897, the said device was installed in the reformatory, and the same was used from that date until some time in the year 1901, when its use was abandoned.

During the period of its use, the following sums were paid claimant by the reformatory, under the terms of the contract, to-wit: November 9,1897, $400; September 10, 1898, $200; September 11, 1899, $200; December 10, 1900, $200; October 10, 1901, $200; amounting in total to $1,200. Since the latter date no further payment has ever been made, and claimant brings this cause to recover the amount of $300 and interest, which it claims is still due and owing under the said contract.

To the declaration in this cause, the Attorney General has filed the plea of general issue, which is followed by a statement, that his department “is unable to find any evidence, other than that disclosed by the cross examination of claimant’s witnesses, upon the question of the liability of the State upon the contract, and cannot render the Court any assistance in reaching a conclusion in this cause.

The evidence taken in this cause substantially supports the allegations in the declaration. No question is raised as to the legality of the contract and there is no dispute as to the amounts paid under the same. The assistant engineer who operated the device from its installation until some time in the year 1900, testifies, that during that period it worked successfully and, that he never had any difficulty in operating it. The superintendent testifies, however, that the chief engineer once informed him, that the device was not practical, but, this being hearsay evidence is not competent in this regard and the chief engineer himself was not placed upon the stand.

Payments were made annually according to the terms of the contract from 1897 to 1901, and there is no evidence of any complaint being made by the reformatory authorities to the claimant, at any time, that the device was not operating successfully. The payment for the year 1900 was not forwarded when due, but was paid after notice by the claimant to the reformatory and the letter accompanying the payment simply states, that the matter of payment was overlooked, thanks claimant for the notice, but makes no complaint of the device.

The first default in payment occurred in 1902, and the only reason given for such default is in a communication to claimant from the superintendent of the reformatory, in which he states that the contract was made prior to his administration and, that he will refer the matter to the board. There is no evidence of any action being taken by the board upon the matter, except in a communication from the chief clerk of the reformatory to the claimant stating, that it was his opinion, that the board would be willing to pay “perhaps $250 cash in settlement of the contract.” But in none of this correspondence is it pretended, that there was any failure of warranty nr that the balance of $300 was not a just obligation.

In view of these facts, it is the opinion of this Court, that there should be an award to the claimant in this cause of $300 and the same is hereby awarded. No interest is awarded for the reason, that the contract does not provide for interest on deferred payments, and for the further reason, that it has not been the practice of this Court to award interest on claims against the State of Illinois, in cases where interest is not specifically provided for by contract.


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    Susan Webster Dodge and Ralph H. Ensign, Executors of the Last Will of Mary H. Dodge, Deceased, v. State of Illinois.

      Opinion filed April 18, 1913.

    1. Inheritance Tax — when no refund will be made. In this claim ah inheritance tax was paid by the executors, but no appeal was prayed from the order of the county judge fixing the tax to the county court. Held, that claimants were not entitled to an award.
    2. Same — Stock owned by non-resident. An inheritance tax may properly be assessed upon shares of stock in an Illinois corporation, owned by a non-resident, even though such non-resident has no real estate in this State.
    3. Same — must appeal to secure refund. It is essential that anyone desiring a refund of an inheritance tax erroneously paid, must first have the tax declared erroneous by some court of this State in accordance with the inheritance tax law.
    4. Cotjet of Claims — not a court of review. The Court of Claims is not vested with authority to review the action of the county-judge in fixing the inheritance tax. Claimants' remedy was by way of appeal to the county court.
    Archibald Cattell, for Claimants.
    W. H. Stead, Attorney General, for State.
   The claim in this case is for a refund of inheritance tax claimed to have been erroneously paid. The claim in question discloses that the deceased died prior to July 1, 1909; that at the time of her death she was not a resident of the State of Illinois, and did not own any real estate in this State, at the time of her death, but that at the time of her death, said decedent was the owner of certain shares of stock in Illinois corporations; that the corporations refused to transfer the stock without the consent of the inheritance tax attorney; that an appraiser was appointed by the county judge of Cook County, Illinois, who appraised the value of the stock so held, fixed the amount of the tax, and made Ms report to the county judge of Cook County, who entered an order approving the report and fixing the tax; that no appeal was taken from the order of the county judge in fixing the amount of the inheritance tax, as provided by law; that the inheritance tax was paid to the county treasurer of Cook County; that demands were made upon the county treasurer of Cook County, and upon the State Treasurer of Illinois, for a refund of the tax so paid.

The claimants filed their petition before the county judge, who appointed the inheritance tax appraiser, praying for a vacation of the order, through the execution of wMch the inheritance tax in question was levied and collected, which petition was denied.

Claimants allege that “the county court was wholly without jurisdiction, and the county judge wholly without jurisdiction, in taking any of the steps which resulted in the imposition of said tax and its collection;” that “the proceedings of the county court were wholly void.” The grounds for claimants’ contentions are, that the deceased was a non-resident of the State of Illinois, at the time of her death, did not have any real estate in Illinois, and therefore the county judge of Cook County, Illinois, had no jurisdiction to fix an inheritance tax.

The State of Illinois, by the Attorney General, has demurred to the claim. This Court is asked to review the proceedings in the county court and the order of the county judge, and hold that the county court had no jurisdiction. Claimants have not followed the plain provisions of the law provided for the reviewing of the ’order of the county judge by an appeal to the county court. The order of the county judge consequently .stands unquestioned, except by this application to this Court, and this Court is asked to assume the power conferred upon the county court under the statute in question, and reverse the order of the county judge. We are of the opinion, that this Court has no such jurisdiction conferred upon it, and that so far as tMs Court is concerned, the inheritance tax in question is a legal tax and was not erroneously paid, and continues to be a legal tax, until such time as an appeal is prosecuted according to the statute in question and the order of the county judge reversed by a court of competent jurisdiction. This Court cannot review the order of the county judge. The statute in question provides for the manner of reviewing the order of the county judge, and it is essential and necessary that anyone desiring a refund of inheritance taxes claimed to have been paid erroneously, must first have the inheritance tax declared erroneous, by some court of this State in accordance with the inheritance tax law, and inasmuch, as the claimants in this case have wholly neglected to take the steps provided by this law, we are compelled to dismiss their claim without a consideration of the merits of the same.

For the reasons above stated, the claim is therefore dismissed, but inasmuch, as there are certain questions involved in this claim, which claimants may desire to submit for decision to some other court, we direct that the rejection of this claim by this Court shall not conclude the claimants.


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    William R. Buckminster, Administrator of the Estate of Ellen B. Stone, Deceased, v. State of Illinois.

      Opinion filed April 18, 1913.

    Inheritance Tax — Dodge & Ensign, ex., v. State ante followed. This claim is based upon a similar state of facts as that of Dodge & Ensign, executors, etc., Mary H. Dodge, deceased, v. State, supra, and the law as announced by the Court in the decision of that claim governs this claim.
    Archibald Cattell, for Claimant.
    W. H. Stead, Attorney General, for State.
   The claim in this case is for a refund of inheritance tax claimed to have been erroneously paid. The claim in question discloses that the deceased died prior to July 1, 1909; that at the time of her death she was not a resident of the State of Illinois, and did not own any real estate in this State at the time of her death, but that at the time of her death, said decedent was the owner of certain shares of stock in Illinois corporations; that the corporations refused to transfer the stock without the consent of the inheritance tax attorney; that an appraiser was appointed by the county judge of Cook County, Illinois, who appraised the value of the stock so held, fixed the amount of the tax, and made his report to the county judge of Cook County, who entered an order approving the report and fixing the tax; that no appeal was taken from the order of the county judge in fixing the amount of the inheritance tax, as provided by law; that the inheritance tax was paid to the county treasurer of Cook County; that demands were made upon the county treasurer of Cook County, and upon the State Treasurer of Illinois, for a refund of the tax so paid.

The claimant filed his petition before the county judge, who appointed the inheritance tax appraiser, praying for a vacation of the order, through the execution of which the inheritance tax in question was levied and collected, which petition was denied.

Claimant alleges, that “the county court was wholly without jurisdiction, and the county judge wholly without jurisdiction, in taking any of the steps which resulted in the imposition of said tax and its collection;” that “the proceedings of the county court were wholly void.” The grounds for claimant’s contentions are that the deceased was a non-resident of the State of Illinois, at the time of her death, did not have any real estate in Illinois, and therefore the county judge of Cook County, Illinois, had no jurisdiction to fix an inheritance tax.

The State of Illinois, by the Attorney General, has demurred to the claim. This Court is asked to review the proceedings in the county court, and the order of the county judge, and hold that the county court had no jurisdiction. Claimant has not followed the plain provisions of the law provided for the reviewing of the order of the county judge by an appeal to the county court. The order of the county judge consequently stands unquestioned, except by this application to this Court, and this Court is asked to assume the power conferred upon the county court under the statute in question, and reverse the order of the county judge. We are of the opinion, that this Court has no such jurisdiction conferred upon it, and that as far as this Court is concerned, the inheritance tax in question is a legal tax and was not erroneously paid, and continues to be a legal tax, until such time as an appeal is prosecuted according to the statute in question and the order of the county judge reversed by a Court of competent jurisdiction. This Court cannot review the order of the county judge. The statute in question provides for the manner of reviewing the order of the county judge, and it is essential and necessary that any one desiring a refund of inheritance taxes claimed to have been paid erroneously, must first have the inheritance tax deelared erroneous, by some court of this State in accordance with the inheritance tax law, and inasmuch, as the claimant in this case has wholly neglected to take the steps provided by this law, we are compelled to dismiss his claim without a consideration of the merits of the same.

For the reasons above stated, the claim is therefore dismissed, but inasmuch, as there are certain questions involved in this claim, which claimant may desire to submit for decision to some other court, we direct that the rejection of this claim by this Court shall not conclude the claimant.


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    Henry G. Elliott, Executor of the Last Will of Alice C. Bostwick, Deceased. v. State of Illinois.

      Opinion filed April 18, 1913.

    Inheritance Tax — Dodge & Ensign, ex., v. State ante followed. This claim is based upon a similar state of facts as that of Dodge & Ensign, executors, etc., Mary H. Dodge, deceased, v. State, supra, and the law as announced by the Court in the decision of that claim governs this claim.
    Archibald Cattell, for Claimants.
    W. H. Stead, Attorney General, for State.
   The claim in this case is for a refund of inheritance tax claimed to have been erroneously paid. The claim in question discloses that the deceased died prior to July 1, 1909; that at the time of her death she was not a resident of the State of Illinois, and did not own any real estate in this State, at the time of her death, but that at the time of her death said decedent was the owner of certain shares of stock in Hlinois corporations; that the corporations refused to transfer the stock without the consent of the inheritance tax attorney; that an appraiser was appointed by the county judge of Cook County, Illinois, who appraised the value of the stock so held, fixed the amount of the tax, and made his report to the county judge of Cook County, who entered an order approving the report and fixing the tax; that no appeal was taken from the order of the county judge in fixing the amount of the inheritance tax, as provided by law; that the inheritance tax was paid to the county treasurer of Cook County; that demands were made upon the county treasurer of Cook County, and upon the State Treasurer of Illinois, for a refund of the tax so paid.

The claimant filed his petition before the county judge who appointed the inheritance tax appraiser, praying for a vacation of the order, through the execution of which the inheritance tax in question was levied and collected, which petition was denied.

Claimant alleges, that “the county court was wholly without jurisdiction, and the county judge wholly without jurisdiction, in taking any of the steps which resulted in the imposition of said tax and its collection;” that “the proceedings of the county court were wholly void.” The grounds for claimant’s contentions are that the deceased was a non-resident of the State of Illinois, at the time of her death, did not have any real estate in Illinois, and therefore the county judge of Cook County, Illinois, had no jurisdiction to fix an inheritance tax.

The State of Illinois, by the Attorney General, has demurred to the claim. This Court is asked to review the proceedings in the county court and the order of the county judge, and hold that the county court had no jurisdiction. Claimant has not followed the plain provisions of the law provided for the reviewing of the order of the county judge by an appeal to the county court. The order of the county judge consequently stands unquestioned, except by this application to this Court, and this Court is asked to assume tfhe power conferred upon the county court under the statute in question, and reverse the order of the county judge. We are of the opinion, that this Court has no such jurisdiction conferred upon it, and that so far as this Court is concerned, the inheritance tax in question is a legal tax and was not erroneously paid, and continues to be a legal tax, until such time as an appeal is prosecuted according to the statute in question and the order of the county judge reversed by a court of competent jurisdiction. This Court cannot review the order of the county judge. The statute in question provides for the manner of reviewing the order of the county judge, and it is essential and necessary that anyone desiring a refund of inheritance taxes claimed to have been paid erroneously, must first have the inheritance tax declared erroneous, by some court of this State in accordance with the inheritance tax law, and inasmuch, as the claimant in this case has wholly neglected to take the steps provided by this law, we are compelled to dismiss his claim without a consideration of the merits of the same.

For the reasons above stated, the claim is therefore dismissed, but inasmuch, as there are certain questions involved in this claim, which claimant may desire to submit for decision to some other court, we direct that the rejection of this claim by this Court shall not conclude the claimant.


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    William D. Ellwanger, Executor of the Last Will of George Ellwanger, Deceased, v. State of Illinois

      Opinion filed April 18, 1913.

    Inheritance Tax—Dodge & Ensign, ex., v. State ante followed. This claim is based upon a similar state of facts as that of Dodge & Ensign, executors, etc., Mary R. Dodge, deceased, v. State, supra, and the law as announced by the Court in the decision of that claim governs this claim.
    Archibald Cattell, for Claimant.
    W. H. Stead, Attorney General, for State.
   The claim in this case is for a refund of inheritance tax claimed to have been erroneously paid. The claim in question discloses that the deceased died prior to July 1, 1909; that at the time of his death he was not a resident of the State of Illinois, and did not own any real estate in this State at the time of his death, but that at the time of his death said decedent was the owner of certain shares of stock in Illinois corporations; that the corporations refused to transfer the stock without the consent of the inheritance tax attorney; that an appraiser was appointed by the county judge of Cook County, Illinois, who appraised the value of the stock so held, fixed the amount of the tax, and made his report to the county judge of Cook County, who entered an order approving the report and fixing the tax; that no appeal was taken from the order of the county judge in fixing the amount of the inheritance tax, as provided by law; that the inheritance tax was paid to the county treasurer of Cook County; that demands were made upon the county treasurer of Cook County, and upon the State Treasurer of Illinois, for a refund of the tax so paid.

The claimant filed his petition before the county judge, who appointed the inheritance tax appraiser, praying for a vacation of the order, through the execution of which the inheritance tax in question was levied and collected, which petition was denied.

Claimant alleges, that “the county court was wholly without jurisdiction,, and the county judge wholly without jurisdiction, in taking any of the steps which resulted in the imposition of said tax and its collection;” that “the proceedings of the county court were wholly void.” The grounds for claimant’s contentions are that the deceased was a non-resident of the State of Illinois at the time of his death, and did not have any real estate in Illinois, and therefore the county judge of Cook County, Illinois, had no jurisdiction to fix an inheritance tax.

The State of Illinois, by the Attorney General, has demurred to the claim. This Court is asked to review the proceedings in the county court and the order of the county judge, and hold that the county court had no jurisdiction. Claimant has not followed the plain provisions of the law provided for the reviewing of the order of the county judge by an appeal to the county court. The order of the county judge consequently stands unquestioned, except by this application to this Court, and this Court is asked to assume the power conferred upon the county court under the statute in question, and reverse the order of the county judge. We are of the opinion that this Court has no such jurisdiction conferred upon it, and that so far as this Court is concerned, the inheritance tax in question is a legal tax and was not erroneously paid, and continues to be a legal tax, until such time as an appeal is prosecuted according to the statute in question and the order of the county judge reversed by a court of competent jurisdiction. This Court cannot review the order of the county judge. The statute in question provides for the manner of reviewing the order of the county judge, and it is essential and necessary that anyone desiring a refund of inheritance taxes claimed to have been paid erroneously, must first have the inheritance tax declared erroneous, by some court of this State in accordance with the inheritance tax law, and inasmuch, as the claimant in this case has wholly neglected to take the steps provided by this law, we are compelled to dismiss his claim without a consideration of the merits of the same.

For the reasons above stated, the claim is therefore dismissed, but inasmuch, as there are certain questions involved in this claim, which claimant may desire to submit for decision to some other court, we direct that the rejection of this claim by this Court shall not conclude the claimant.


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    John B. Folger, Executor of the Last Will of John Elliott Atkins, Deceased, v. State of Illinois.

      Opinion filed April 18, 1913.

    Inheritance Tax — Dodge & Ensign, ex., v. State ante followed. This claim is based upon a similar state of facts as that of Dodge & Ensign, executors, etc., Mary H. Dodge, deceased, v. State, supra, and the law as announced by the Court in the decision of that claim governs this claim.
    Archibald Cattell, for Claimant.
    "W. H. Stead, Attorney General, for State.
   The claim in this case is for a refund of inheritance tax claimed to have been erroneously paid. The claim in question discloses that the deceased died prior to July 1, 1909; that at the time of his death he was not a resident of the State of Illinois, and did not own any real estate in this State, at the time of his death, hut that at the time of his death said decedent was the owner of certain shares of stock in Illinois corporations; that the corporations refused to transfer the stock without the consent of the inheritance tax attorney; that an appraiser was appointed by the county judge of Cook County, Illinois, who appraised the value of the stock so held, fixed the amount of the tax, and made his report to the county judge of Cook County, who entered an order approving the report and fixing the tax; that no appeal was taken from the order of the county judge in fixing the amount of the inheritance tax, as provided by law; that the Inheritance tax was paid to the county treasurer of Cook County; that demands were made upon the county treasurer of Cook County, and upon the State Treasurer of Illinois, for a refund of the tax so paid.

The claimant filed his petition before the county judge, who appointed the inheritance tax appraiser, praying for a vacation of the order, through the execution of which the inheritance tax in question was levied and collected^ which petition was denied.

Claimant alleges, that “the county court was wholly without jurisdiction, and the county judge wholly without jurisdiction, in taking any of the steps which resulted in the imposition of said tax and its collection;” that “the proceedings of-the county court were wholly void.” The grounds for claimant’s contentions are that the deceased was a non-resident of the State of Illinois at the time of his death, did not have any real estate in Illinois, and therefore the county judge of Cook County had no jurisdiction to fix an inheritance tax.

The State of Illinois, by the Attorney General, has demurred to the claim. This Court is asked to review the proceedings in the county court and the order of the county judge, and hold that the county court had no jurisdiction. Claimant has not followed the plain provisions of the law provided for the reviewing of the order of the county judge by an appeal to the county court. The order of the county judge consequently stands unquestioned, except by this application to this Court, and this Court is asked to assume the power conferred upon the county court under the statute in question, and reverse the order of the county judge. We are of the opinion that this Court has no such jurisdiction conferred upon it, and that so far as this Court is concerned, the inheritance tax in question is a legal tax and was not erroneously paid, and continues to be a legal tax, until such time as an appeal is prosecuted according to the statute in question and the order of the county judge reversed by a court of competent jurisdiction. This Court cannot review the order of the county judge. The statute in question provides for the manner of reviewing the order of the county judge, and it is essential and necessary that any one desiring a refund of inheritance taxes claimed to have been paid erroneously, must first have the inheritance tax declared erroneous, by some court of this State in accordance with the inheritance tax law, and inasmuch, as the claimant in this case has wholly neglected to take the steps provided by this law, we are compelled to dismiss his claim without a consideration of the merits of the same.

For the reasons above stated, the claim is therefore dismissed, but inasmuch, as there are certain questions involved in this claim, which claimant may desire to submit for decision to some other court, we direct that the rejection of this claim by this Court shall not conclude the claimant.


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    Armor Hollingsworth, Executor of the Last Will of Armor L. Hollingsworth, Deceased, v. State of Illinois.

      Opinion filed April 18, 1913.

    Inheritance Tax — Dodge & Ensign, ex., v. State ante -followed. This claim is based upon a similar state of facts as that of Dodge & Ensign, executors, etc., Mary H. Dodge, deceased, v. State, supra, and the law as announced by the Court in the decision of that claim governs this claim.
    Archibald Cattell, for Claimant.

      W. H. Stead, Attorney General, for State.
   The claim in this case is for a refund of inheritance tax claimed to have been erroneously paid. The claim in question discloses that the deceased died prior to July 1, 1909; that at the time of his death he was not a resident of the State of Illinois, and did not own any real estate in this State, at the time of his death, but that at the time of his death said decedent was the owner of certain shares of stock in Illinois corporations; that the corporations refused to transfer the stock without the consent of the inheritance tax attorney; that an appraiser was appointed by the county judge of Cook County, Illinois, who appraised the value of the stock so held, fixed the amount of the tax, and made his report to the county judge of Cook County, who entered an order approving the report and fixing the tax; that no appeal was taken from the order of the county judge in fixing the amount of the inheritance tax, as provided by law; that the inheritance tax was paid to the county treasurer of Cook County; that demands were made upon the county treasurer of Cook County, and upon the State Treasurer of Illinois, for a refund of the tax so paid.

The claimant filed his petition before the county judge, who appointed the inheritance tax appraiser, praying for a vacation of the order, through the execution of which the inheritance tax in question was levied and collected, which petition was denied.

Claimant alleges, that “the county court was wholly without jurisdiction, and the county judge wholly without jurisdiction, in taking any of the steps which resulted in the imposition of said tax and its collection;” that “the proceedings of the county court were wholly void.” The grounds for claimant’s contentions are that the deceased was a non-resident of the State of Illinois, at the time of his death, did not have any real estate in Illinois, and therefore the county judge of Cook County, Illinois, had no jurisdiction to fix an inheritance tax.

The State of Illinois, by the Attorney General, has demurred to the claim. This Court is asked to review the proceedings in the county court and the order of the county judge, and hold that the county court had no jurisdiction. Claimant has not followed the plain provisions of the law provided for the reviewing of the order of the county judge by an appeal to the county court. The order of the county judge consequently stands unquestioned, except by this application to this Court, and this Court is asked to assume the power conferred upon the county court under the statute in question and reverse the order of the county judge. "We are of the opinion, that this Court has no such jurisdiction conferred upon it, and that so far as this Court is concerned, the inheritance tax in question is a legal tax and was not erroneously paid, and continues to be a legal tax, until such time as an appeal is prosecuted according to the statute in question and the order of the county judge reversed by a court of competent jurisdiction. This Court cannot review the order of the county judge. The statute in question provides for the manner of reviewing the order of the county judge, and it is essential and necessary that any one desiring a refund of inheritance taxes claimed to have been paid erroneously, must first have the inheritance tax declared erroneous, by some court of this State in accordance with the inheritance tax law, and inasmuch, as the claimant in this case has wholly neglected to take the steps provided by this law, we are compelled to dismiss hi$ claim without a consideration of the merits of the same.

For the reasons above stated, the claim is therefore dismissed, but inasmuch, as there are certain questions involved in this claim, which claimant may desire to submit for decision to some other court, we direct that the rejection of this claim by this Court shall not conclude the claimant.


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    Henry M. Rowling, Executor of the Last Will of Viola C. Lyman, Deceased, v. State of Illinois.

      Opinion filed April 18, 1913.

    Inheritance Tax—Dodge & Ensign, ex., v. State ante followed. This claim is based upon a similar state of facts as that of Dodge & Ensign, executors, etc., Mary H. Dodge, deceased, v. State, supra, and the law as announced by the Court in the decision of that claim governs this claim.
    Archibald CatteU, for Claimant.
    W. H. Stead, Attorney General, for State.
   The claim in this ease is for a refund of inheritance tax claimed to have been erroneously paid. The claim in question discloses that the deceased died prior to July 1, 1909; that at the time of her death she was not a resident of the State of Illinois, and did not 'own any real estate in this State, at the time of her death, but that at the time of her death said decedent was the owner of certain shares of stock in Illinois corporations; that the corporations refused to transfer the stock without the consent of the inheritance tax attorney; that an appraiser was appointed by the county judge of Cook County, Illinois, who appraised the value of the stock so held, fixed the amount of the tax, and made his report to the county judge of Cook County, who entered an order approving the report and fixing the tax; that no appeal was taken from the order of the county judge in fixing the amount of the inheritance tax, as provided by law; that the inheritance tax was paid to the county treasurer of Cook County; that demands were made upon the county treasurer of Cook County, and upon the State Treasurer of Illinois, for a refund of the tax so paid.

The claimant filed his petition before the county judge, who appointed the inheritance tax appraiser, praying for a vacation of the order, through the execution of which the inheritance tax in question was levied and collected, which petition was denied.

Claimant alleges, that “the county court was wholly without jurisdiction, and the county judge wholly without jurisdiction, in taking any of the steps which resulted in the imposition of said tax and its collection;” that “the proceedings of the county court were wholly void.” The grounds for claimant’s contentions are that the deceased was a non-resident of the State of Illinois, at the time of her death, did not have any real estate in Illinois and therefore the county judge of Cook County, Illinois, had no jurisdiction to fix an inheritance tax.

The State of Illinois, by the Attorney General, has demurred to the claim. This Court is asked to review the proceedings in the county court and the order of the county judge, and hold that the county court had no jurisdiction. Claimant has not followed the plain provisions of the law provided for the reviewing of the order of the county judge by an appeal to the county court. The order of the county judge consequently stands unquestioned, except by this application to this Court, and this Court is asked to assume the power conferred upon the county court under the statute in question, and reverse the order of the county judge. We are of the opinion, that this Court has no such jurisdiction conferred upon it, and that so far as this Court is concerned, the inheritance tax in question is a legal tax and was not erroneously paid, and continues to be a legal tax, until such time as an appeal is prosecuted according to the statute in question and the order of the county judge reversed by a court of competent jurisdiction. This Court cannot review the order of the county judge. The statute in question provides for the manner of reviewing the order of the county judge, and it is essential and necessary that any one desiring a refund of inheritance taxes claimed to have been paid erroneously, must first have the inheritance tax declared erroneous, by some court of this State in accordance with the inheritance tax law, and inasmuch, as the claimant in this case has wholly neglected to take the steps provided by this law, we are compelled to dismiss his claim without a consideration of the merits of the same.

For the reasons above stated, the claim is therefore dismissed, but inasmuch, as there are certain questions involved in this claim, which claimant may desire to submit for decision to some other court, we direct that the rejection of this claim by this Court shall not conclude the claimant.