text:
    (No. 802
    Claimant awarded $21,698.08.)
    Washington Porter II and Frederick C. Porter, Executors of the Estate of Washington Porter, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 17, 1924.

    Inheritance tax — when, refund for overpayment will be made. Where an inheritance tax has been fixed by the county judge, and is paid, and an appeal is taken to the county court where upon hearing thereon the county court finds that the tax paid is more than the State is entitled to receive, claimant is entitled to a refund' of the difference between the amount of the tax paid under the original order of the county judge and the amount found due by the county court upon appeal.
    Wilson, McIlvaine, Hale & Templeton, for claimant.
    Edward J. Brundage, Attorney General; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Phillips

delivered the opinion of the court:

The claimants, Washington Porter II and Frederick C. Porter, executors of the estate of Washington Porter, claim a refund of inheritance tax erroneously paid on an erroneous original order entered by the county judge of the county court of Cook county, Illinois.

Washington Porter died June 24, 1922, leaving a last will and testament’. The claimants were duly appointed executors of such will and testament, and as such duly qualified and are acting as such executors. Thereafter proper proceedings were had in such court and the county judge in December, 1922, entered an order fixing amount of inheritance tax at $68,611.78 which was paid. On appeal in due time the county court modified the order so entered and found and fixed the actual amount to be paid at $43,483.11, being amount to be paid after deducting the 5% discount.

From this it appears that the executors erroneously paid more than was due the State to-wit: The difference between $65,181.19 and $43,483.11 equals $21,698.08. The Attorney General files a written consent to the allowance of said difference above mentioned, and that 3% should be paid as alleged in declaration. The evidence supports the claimants’ claim.

It is therefore the order of the court that claimants be awarded the sum of $21,698.08.


source: Caselaw Access Project

author: Mr. Justice Leech

license: Public Domain

text:
    (No. 822
    Claimant awarded $212.00.)
    E. M. Kohler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 17, 1924.

    Respondeat superior — state not liable under doctrine of. The State is not liable for injuries sustained by its employees while in the performance of their duty.
    Social justice and equity — award may be made to State employee. While there may be no legal liability against the State for injuries sustained - by its employees while in the discharge of their duty, yet as a matter of equity and good conscience, an award may be made to such employee to ' . reimburse him for moneys expended by him in effecting a cure of his injury.
    E. M. Kohler, for claimant.
    Edward J. Brundage, Attorney General ; George C. Dixon,Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The claimant, E. M. Kohler, files his declaration herein, setting forth that the defendant was on the 22nd day of September, 1923, employing certain automobile investigators, whose duties were to enforce the State automobile laws. Such investigators were supplied with motorcycles with side car attachment for the purpose of patroling the highways.

The claimant further states that on the 22nd day of September, 1923, and for two years previous thereto he was .employed by the State of Illinois as automobile investigator, and while in the performance of his duty was riding a motorcycle with E. M. Fellows, also an investigator, who was in the side car attachment, proceeding north of the State highway out of Chatham, Illinois, and pursuing a violator of the automobile law, and motorcycle left the road at a sharp turn and tore into a fence. As a result of the compact, the claimant struck a heavy 4" by 4" cross piece, flush with the lower part of his face, causing severe bruises and the dislocating of all his upper and lower teeth, except his rear molars.

The claimant received medical attention from a doctor in Chatham, and then was able to proceed to Springfield, where he was attended at St. John’s Hospital by Dr. G. W. Stabben and Dr. George Carruthers.

The claimant further states that he returned to his home and received treatment by Dr. E. E. Hoffa, a dentist, of Terre Haute, Indiana.

The claimant makes no claim for personal injury and pain and suffering or loss of pay, but presents.a statement for $212.00 for dental work done by Dr. E. E. Hoffa, which amount has been paid in full by the claimant.

The Attorney General files a demurrer, which, as a matter of law, is sustained by the court.

The evidence shows that the claimant was badly bruised about the face and lost a great number of his front teeth, while all his upper and lower teeth, except the rear molars, were knocked loose. '

While the State would not be liable under the law, still the court believes, as a matter of equity and good conscience, the claimant should be allowed the sum which he expended for dental services, he having made no other claim.

It is therefore considered by the court that the claimant be awarded the sum of $212.00.


text:
    (No. 828
    Claimant awarded. $66.50.)
    Dixon Water Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 17, 1924.

    Governmental function — state not liable for negligence of its employees. The State in conducting the State Colony for Epileptics at Dixon, exercises a government function and' is not liable for the negligence of its employees therein.

      Reimbursement — when award may be made. While- the State is not liable for the negligence of its employees, yet an award may be made to claimant to reimburse him for damage occasioned by the negligence of its employee.
    Henry C. Warner, for claimant.
    Edward J. Brundage, Attorney General ; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The declaration in this case states that the Dixon Water Company, of Dixon, Illinois, a corporation, complains to the State of Illinois that on, to-wit, the 22nd day of September, A. D. 1923, an automobile truck belonging- to the State of Illinois and used in and about the conduct of the State Colony for Epileptics at Dixon, Illinois, was being operated in one of the streets of Dixon, Illinois, near the corner of Fifth street and Depot avenue; that said automobile truck was then and there being operated by an employee of the State of Illinois; that said automobile truck then and there being operated by said employee was so carelessly operated that one of the hydrants at the intersection of Fifth street and Depot avenue in said city was damaged and broken and a large quantity of water was necessarily wasted and it became and was necessary fqr the Dixon Water Company to replace said hydrant which was broken and shut off the water from the water mains belonging to the claimant in that vicinity in order to install a new hydrant in the place of the hydrant which was broken.

The claimant further alleges that the fair market value of the new hydrant so installed was the sum of $57.50 and that said claimant was compelled to employ two men for one day to install said new hydrant, and that said men were paid the sum of $9.00 f.or services performed by them.

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

The Attorney General also filed his consent to an award, stating that the case had been thoroughly investigated under the direction of the director of public welfare, that such investigation showed the facts are clearly set forth in the declaration.

The Attorney General therefore consents to an award in this case in favor of the claimant in the sum of $66.50.

The court therefore makes an award to said claimant in the sum of $66.50.


author: Mr. Chief Justice Clarity

text:
    (No. 20
    Claim denied.)
    The Steel Fabricating Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1924.

    Franchise tax — when coiirt with jurisdiction. The court is without jürisdiction to review the tax levying power of the Secretary of State.
    The Steel Fabricating Corporation, for claimant.
    Edward J. Brundage, Attorney General; Floyd E. Britton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim filed by the Steel Fabricating Corporation to recover the sum of $200.00 claimed to be erroneously paid to the office of the Secretary of State. The said tax of $200.00 was paid as alleged by claimant to cover a period over which it is claimed that a tax had already been paid.

It is the opinion of this court that the claim is without legal foundation, as under the circumstances an affirmative action by this court would be in the nature of a review of the tax levying power of the office of the Secretary of State, and therefore this court is further of the opinion that this court is without jurisdiction as a matter of law, and there being nothing in the case where the rule of equity and social justice could be invoked, it is ordered that said claim be disallowed.


text:
    (No. 704
    Claim denied.)
    William Dawson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1924.

    Municipal corporation — not liable for negligence of employees thereof. The State is not liable for injuries sustained by claimant caused' by the negligence of an employee of a municipal corporation, even though such corporation may be a sub-agency of the State.
    A. L. Williams, for claimant.
    Edward J. Brundage, Attorney General ; Floyd E. Britton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim filed by William Dawson, who operated a delivery wagon, and while driving said -wagon at Thirty-third and State streets, Chicago, was struck by a motor truck alleged to be the property and operated by the South Park Commissioners of Chicago.

The State of Illinois, appearing and filing their demurrer, "which, according to previous decisions in cases of this character filed in this court heretofore, is sustained, as the court has repeated in former opinions there is no legal liability in this class of cases. One of the chief reasons heretofore assigned, that in opening the gates for obligation in such remote subdivisions of the State on the ground of equity or social justice, would impose a burden upon the taxpayers of the State of Illinois that was not contemplated, in the opinion of this court, when the act creating the court was made a law by the legislature.

This court therefore disallows the claim.


text:
    (No. 768
    Claimant awarded $3000.00.)
    Mary L. Martin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1924.

    Respondent superior — when State not liable. The State is not liable .for injuries sustained by its employees while in the discharge of their duty.
    Social justice and equity — when award may be made. While no legal liability exists against the State for injuries sustained by its employees while in the performance of their duty, but under the peculiar circumstances of the case, the court may enter an award in favor of claimant as an act of social justice and equity.
    John J. Reeve, for claimant.
    Edward J. Brundage, Attorney General ; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The claimant, Mary L. Martin, files her declaration herein setting forth that she was, on the 19th day of September, 1922, employed as a teacher in the State School for the Deaf at Jacksonville, Illinois; that she had been an employee of said State School for the Deaf for the term of approximately thirty-five years, as a teacher; that in the month of September, 1922, while in the discharge of her duties as such teacher, she slipped and fell on the floor of the school room, which floor had been recently oiled; the result of such fall being the breaking of the right hip; that her salary amounted to the sum of $2000.00 per year.

Claimant further states that she was treated for said injury by Dr. F. A. Norris and Dr. Edward Bowe; that on account of and by reason of said accident her general health was broken down and she has never been able, and never will be able, to return to her former duties.

The Attorney General of Illinois has -filed a demurrer to said declaration, which, as a matter of law, will be sustained. . The Attorney General also files a statement setting forth that the claimant’s statements are borne out by the depositions filed herein. The Attorney General, in his statement, says that if the court in its discretion should decide that this is a proper case in which to allow an award because of equity and social justice, then in that event the Attorney General suggests that the facts are so clearly disclosed by the record herein that the court can readily apply thereto the provisions of the Workmen’s Compensation Act and make an award in accordance therewith.

The evidence shows that said claimant, Mary L. Martin, is 62 years of age; that she was an employee of the State of Illinois as a teacher in the School for the Deaf for 44 years and five months prior to her injury and that at the time of the injury she was receiving the sum of $2000.00 as her annual salary; that she received surgical treatment from Dr. Frank A. Norris, medical treatment from Dr. Edward Bowe and osteopathic treatments from Dr. J. A. Strother; that the physicians’ and hospital bills amounted to the sum of $1,028.00 ; that the injury to claimant had left her quite lame and that she could walk very little without support and tired quickly; that she has not been able to return to her former occupation and perhaps never will be.

It has been repeatedly held by this court that the doctrine of respondeat superior does not apply to the State and the State is not liable for injuries sustained by its employees while in the discharge of their duties. Still the State of Illinois in this case recognizes the valuable and long service rendered to it by this claimant; that she has given the best years of her life to the services of the State; that she has paid out a large sum of money for medical and hospital service and has lost one year salary.

The court believes that this is a case of great merit, and in equity and good conscience, and in the interest of social welfare and justice, it is the opinion of the court that the claimant be and she is therefore awarded the sum of $3,000.00.


text:
    (No. 773
    Claim denied.)
    George Erwin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1924.

    License fees- — when refund will not be made. Claimant is not entitled to a refund of a license fee paid to a Department of State under a mistake of law.

      Same — moneys paid under mistaTce of law cannot be recovered. Moneys paid voluntarily under a mistake of law cannot be recovered.
    J. Harvey Robillard, for claimant.
    Edward J. Brundage, Attorney General; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim filed to recover the sum of $34.00 alleged to be an erroneous payment made to procure license for operation of a truck in such manner that it did not come under the Statute requiring: the amount paid as alleged.

The Attorney General comes and files objections to the allowance of said claim on the ground that this court could not and would not allow claims based upon mistakes in the payment of fees to the various departments of the State.

This court in reviewing the facts as appears from the records in the case, is of the opinion that there is no redress upon the claim filed as a matter of law, and it is further the opinion of the court that there is nothing in the-record that would permit the court to make a refund as a matter of equity and good conscience, such as is contemplated by the legislature in creating this court. Therefore the court being without remedy in the premises, denies said claim.


text:
    (No. 805
    Claimant awarded' $243.00.)
    Missouri State Life Insurance Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1924.

    Insurance tax — when may be refunded. Where there is an overpayment of the amount due the State for privilege tax which was erroneously assessed, a refund of the overpayment may be awarded.
    Brown, Hay & Stephens, for claimant.
    Edward J. Brundage, Attorney General ; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The declaration of the Missouri State Life Insurance Company, claimant, filed in this court, sets forth the following:

That the Missouri State Life Insurance Company is an insurance company organized and existing under and by virtue of the laws of the State of Missouri with its principal office at 15th and Locust streets, St. Louis, Missouri; that under provisions of section one of an act in relation to the taxation of non-resident corporations doing an insurance business in this State, in force July 1, 1919, each non-resident insurance company was required to pay 2 per centum on the gross amount of premiums received by them during the preceding calendar year on contracts covering risks within the State of Illinois after deducting the amount returned'to holders of policies on risks within the State as dividends, paid in cash or applied in reduction of premiums; that under section two of said act it is provided that if the laws of another state require of insurance companies authorized under the laws of this State and doing business in such other state license fees on a basis of rate which will produce amounts greater than would be produced by the application of the basis provided for herein and by any other laws of this State, then in every such case insurance companies of such state shall be required to pay for such privilege on the same basis as is imposed by the laws of this State upon similar insurance companies organized under the laws of this State; that prior to March, 1922, the State of Missouri did not allow- deductions from gross premiums of dividends allowed policy holders but that beginning at said time and allowing the same on taxes for business done during the year 1921 the insurance department of said State of Missouri allowed said deductions to be made from the gross premiums as is shown by letter attached hereto from Wilbur F. Maring, Jr., Chief Clerk of the Insurance Department of the State of Missouri.; that on February 17, 1922, this claimant filed its privilege tax statement with the Department of Trade and Commerce of the State of Illinois as shown by exhibits hereto marked “Claimant’s Exhibit II”; that on, to-wit, May 16,1922, this claimant received statement of privilege taxes from said Department of Commerce as shown by exhibit III attached hereto and made a part hereof, which said sum was paid by check in the sum of $14,193.48, mailed by the claimant on June 8, 1922, received ' by the Department of Trade and Commerce on July 12, 1922; that of the items shown in said privilege tax statement under paragraph four as dividends paid in cash or in reduction of ■ premiums, amounting to $28,643.12, the sum of $16,485.12 was dividends paid in cash and $12,158.00 was dividends applied in reduction of premiums and on said sum of $12,158.00 said Department of Trade and Commerce erroneously assessed 2 per cent taxes as shown by letter from said department dated April 19, 1923, and attached hereto and marked “Claimant Exhibit IV”.

The claimant therefore asks for a refund of 2 per cent of $12,158.00, or $243.00 by reason of said over payment.

The Attorney General files a demurrer to said declaration which, as a matter of law will be sustained by the court.

The evidence in this case clearly shows that the claimant erroneously paid the State of Illinois the sum of $243.00 which under the law claimant was not required to do. The Attorney General files a statement consenting to the award • ■ and states that the Superintendent of Insurance of the Department of Trade and Coinmerce has recommended that said ■ claim be allowed. We therefore find that there is due the claimant the sum of $243.00 which sum is hereby awarded said claimant.


author: Mr. Justice Phillips

text:
    (No. 4
    Claim denied.)
    Robbins Incorporated, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 28, 1925.

    Fish and game — state not liable for confiscating when. The State is not liable for an unauthorized and unlawful act of its agents in the confiscation of unlawful fish.
    Agents or state — state not bound by admissions of. Agents of the State cannot by casual admissions admit away the rights of the State.

      Same — state not liable when. The State is not liable for the torts of its agents or officers.
    David B. Gann, for claimant.
    Edward J. Brundage, Attorney General ; Floyd E. Britton, Assistant Attorney General, for respondent.
   Mr. Justice Phillips

delivered the opinion of the court:

The claimant in this case is an Illinois-corporation, with, its main office at Chicago, engaged in the business of buying, storing and selling fish, etc., alleges in its declaration that in July, 1920, plaintiff was the consignee for a large amount of fish shipped to it by various companies from Eriean, Ontario, Canada, and the shipments amounted to about four thousand pounds of Lake Erie ciscoes (fish).

That said fish shipped' were packed in boxes properly labeled and tagged as “ciscoes,” and that the said fish on being inspected by the duly authorized agent of the Department of Agriculture of the State of Illinois, Division of Fish and Game, were confiscated by such agents or officers of the State on the ground that they were undersized white fish, prohibited under Section 23 of the then existing Fish and Game Act (Hurd’s Revised Statutes, 1919, Chap. 56, Par. 23).

It is claimed that the value of the fish so confiscated was $514.00 and asks judgment of the court for that amount.

. The defendant filed general demurrer, and evidence was taken as if general issue were filed. The State offers no evidence and contends that the State is not liable, on the ground that if this was an unauthorized and unlawful confiscation of lawful fish, it constituted a tort of the agent of. the State directing the confiscation; that this claim is an action for the damages on account of such tort; and that the State is not liable-for such tort, and cites in support of its contention the case of Gibbon v. U. S., 8 Wall 268: “No government has ever held itself liable to individuals for the misfeasance, laches, or unauthorized exercise of power by its officers and agents whom it employs, etc. ’ ’

Also, that same rule applies in this State. In Minear v. State Board of Agriculture, where it is said that, “If, as we held, the State Board of Agriculture is an agency of the State in the exercise of its government functions, it is not liable under the common law for injuries claimed to have been sustained as a result of its negligence,” etc., and for reasons agreed and supported by such citations the State maintains that the demurrer should be sustained. The evidence is clear and rather voluminous to the effect that no white fish at all were in the .shipment so confiscated; and it is shown that a certain officer of agriculture department admitted that perhaps the confiscation was a mistake.

If the agents made the mistake as contended they were trespassers and guilty of a tort. The State is not liable in such cases for the torts of its agents or any official of the State, has been repeatedly held by this court, the State court and the U. S. Supreme Court.

On personal inspection by the court, it has been ascertained that the claimants never have brought this matter to the attention of the ‘ ‘ Came and Fish Department. ’ ’

It is contended that one of the State’s agents admitted, after the confiscation of the fish, that the State had perhaps made a mistake. Such statement, if made by an agent after the occurrence, was not proper to be given in evidence and does not bind the State. Agents of the State cannot by casual admissions admit away the rights of the State.

The agents in the confiscation of the fish are presumed to have acted intelligently and without undue haste. If their conduct in the confiscation of the property was a trespass, the aggrieved parties had another remedy than the one at bar. The demurrer will be sustained and case dismissed. .


text:
    (No. 26
    Claimant awarded $411.44.)
    William Balke, et al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 28, 1925.

      Contract — when State liable for supplies. Where claimant purchases formaldehyde at the request of the Department of Agriculture to use in the elimination of “Black Flag” from wheat in an infected district, the funds of the Department to use for that purpose being exhausted, claimant is entitled to be reimbursed by the State for the purchase price.
    Burton & Burton, for claimant.
    • Edward J. Brundage, Attorney General; George 0. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Phillips

delivered the opinion of the court:

This claim is brought by William Balke and twenty-nine farmers of Madison county, Illinois, for the recovery of the respective amounts claimed to be due them respectively from defendant for formaldehyde furnished by them in the year 1922 at the request of the State. The facts in the declaration are fully proven and not denied by the State and are as follows : In 1921 the Department of Agriculture of Illinois quarantined the territory embracing the farms of claimants and burnt their wheat straw and bought formaldehyde and treated their wheat therewith in the same year. In the year 1922 complainants were compelled by order of said institution to use formaldehyde again on their wheat; and requested that they buy and use same and the State would pay for same, as this department had exhausted its funds. Claimants bought and used the formaldehyde and used same as directed by the State to eliminate “Black Flag” from the wheat in the infested district and now claim the amounts following their respective names, which claims we hereby award to them as follows:

Claimants. - Awards.
William Balke ..................................... $ 6.05
Robert Bonensteihl ................................ 9.24
G. Brockmeyer .................................... 21.50
Charles Beusking.................................. 5.25
Louis Friedman ................................... 6.50
Henry Fulreide ..................................... 10.25
Charles Hydron ................................... 50.38
Henry Johann ..................................... 12.48
Fred Kassing...................................... 4.45
Claimants. Awards.
Mac Ke-llar ........................................ 14.00
Henry Kruss ...................................... 4.25
H. C. Landwehrmeier .............................. 18.92+5.50 ■
F. Langreder......................... 3.95
Wm. Maack'....................................... 4.45
Charles Miecamp ...'............................... 8.15
Wm. McCormick ................x.................. 17.22
Phil Morrison ..................................... 16.25
Charles Rathert ................................... 6.44
Mrs. Sepmeyer (full name not in evidence) ........ 11.10
Louis Soechtig & Son............................... 4.85
W. E. Sponeman .................................. 13.05.
John Watselc ...................................... 23.24
Nick Werner ...................................... 4'. 40
J. J. Willeredt..................................... 4.85
Theodore Wille.....,............................... 10.65
Julius Wille ....................................... 8.06
Fred Zaiicek 1.................................. 5.25
H. B. Koeller...................................... 50.38
Fred Straub ....................................... 50.38
Total ......................................... $411.44


text:
    (No. 705
    Claimant awarded $2096.10.)
    Great American Insurance Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, January 28, 1925.

    Insurance tax — when a/ward may he made for tax paid hy mistake. Where claimant has paid to the State its privilege tax, and the amount of . tax to a municipal corporation for the benefit of its organized fire department is not deducted through mistake or inadvertence claimant, is entitled to an award for the amount of the tax paid to the municipal corporation.
    Bates, Hicks & Folonie, for claimant.
    Edward J. Brundage, Attorney General ; Floyd E. Britton, Assistant Attorney General, for respondent.
   Mr. Justice Phillips

delivered the opinion of the court:

This is a suit brought by Great American Insurance Company, a corporation, of Hew York, to recover from the State of Illinois the sum of $2,096.10, which it claims was by mistake and inadvertence overpaid to the State for privilege of doing an insurance business in the State of Illinois. The evidence is stipulated in writing and is in substance as follows:

1. About September 29, 1919, the Director of Trade and Commerce of Illinois demanded of the claimant $9002.36 as a privilege tax for the year commencing July 1, 1919, and ending June 30,1920, under provision of the act relating to taxation of foreign insurance companies.

2. The gross amount of premiums in this State during that year received by claimant was $891,204.15.

3. The 2% privilege tax on such gross amount of premiums was $17,824.08. The statute of Illinois directs that from the tax thus compute'd shall be deducted the amount paid by the corporation for benefit- of organized fire departments.

4. The claimant Submitted for the inspection of the Director of Trade and Commerce tax receipts paid that year for the benefit of organized fire departments in Illinois in the amount of $8821.72, and upon said director’s demand, paid the State of Illinois the difference or balance of $9,002.36 as its said annual privilege tax.

5. The claimant, through agent's Ingram and Lerch, paid the City of Chicago on premiums received on account of agents in outlying districts for the benefits of the organized fire department of Chicago $744.27, which payment was made about August 16, 1918, and by mistake and inadvertence this tax receipt was not submitted to the Director of Trade and Commerce and was not included in the deduction above mentioned.

6. About June, 1920 the Director of Trade and Commerce of Illinois demanded of claimant $10,343.36 as privilege tax for year commencing July 1,1920, ending June 30,1921, under the provisions of said law.

7. The gross amount of premiums in this State during that year received by claimant was $960,206.88.

8. The 2% privilege tax on such gross amounts of premiums was $19,204.14, and the amount to be used was the same as that collected in the year prior thereto.

9. The claimant submitted for the inspection of the Director of'Trade and Commerce tax receipts paid that year for the benefit of organized fire departments in Illinois in the amount of $8860.78, and upon said director’s demand paid the balance of the $10,343.30 as its annual privilege tax.

10. The claimant agents Ingram and Lerch paid the City of Chicago on premiums received on account of such agents in outlying districts for benefit of organized fire departments of Chicago $673.54, which payment was made about August 22,1919, and by mistake and inadvertence this tax receipt was not submitted to the director and was not included in the deduction mentioned.

11. About June 25, 1921, there was likewise demanded $17,674.25 privilege tax for year ending June 30, 1922, under same law.

12. The gross amount received that year was $1,489,577.54.

13. The 2% on that amount was $29,791.55, to be deducted for purposes as aforesaid.

14. Claimant submitted to the said director tax receipts of the amounts paid that year for benefit of organized fire departments in Illinois $12,117.30 and on demand paid the State the difference or balance of $17,874.25 as its privilege tax for said year.

15. The claimant, through its said agents, paid the City of .Chicago on premiums collected on account agents in outlying districts for benefit of organized fire departments in the city of Chicago $678.29, which payment was made about September 10, 1920, and by.mistake and inadvertence this tax receipt was not submitted to the Director of Trade and Commerce and was not included in the deduction mentioned.

16. The Attorney General and the Director of Trade and Commerce each acknowledge that they have inspected the receipts received by claimant from the cities and villages as fire department tax, and that same are genuine and for the three years mentioned and for the respective amounts named aforesaid. That they have examined the three receipts running to Ingram and Lerch as aforesaid from the City of Chicago, and none of them are included in said deductions.

Copies of all these receipts are filed herein. From the • evidence so stipulated herein, and on the admissions of the Attorney General and the Director of Trade and Commerce in writing of the facts alleged by claimant, it is very evident that the claimant is entitled to a refund as follows:

Year 1920.........................................$ 744.27
Year 1921.........1............................... 673.54
Year 1922.......................................... 678.29
Total. ......................................$2096.10

and the court so finds. An award for refund of taxes was made in a similar case cited by counsel for claimant — the case of American Eagle Fire Insurance Company v. State of Illinois, No. 37 C. of C., Sept. Term, 1922, which is in point, and reported in Vol. 4, p. 231, C. of C.

We accordingly award the claimant the sum of $2,096;10.


text:
    (No. 754
    Claimant awarded §2,682.94 with interest.)
    First Trust & Savings Bank, Executor of the Estate of Robert E. Ismond, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 28, 1925.

    Inheritance tax — when refund made under Sec. 25. Where an inheritance tax has been assessed under Section 25, Inheritance Tax Law, and the tax paid, and afterwards the estate in a proper proceeding, is re-appraised and' re-assessed and the amount of the tax reduced, claimant is entitled to a refund of the difference between the amount of the tax paid on the original assessment and the amount fixed on the re-assessment of the tax with interest thereon at 3%.
    Judah, Willard, Wolf & Reichmann, for claimant.
    Edward J. Brundage, Attorney General ; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Phillips

delivered the opinion of the court:

First Trust and Savings Bank (a corporation), as executor of and under the last will and testament of Robert E. Ismond, deceased, complainant, brings this suit to recover certain inheritance taxes, claimed to he due it on a re-assessment and re-appraisement in the said estate.

The executor duly qualified as such in said estate and is still acting and is the trustee of and under the will for Julia Hill, Oscar E. Ismond, Henry A. Ismond, Hazel Ismond White and Hazel Kathryn White, for whose benefit this refund is asked. The documentary evidence filed herein is very complete and ample proof of every material allegation in complainant’s petition, and we so find. Under the first order entered by county judge, claimant paid inheritance taxes under protest in the sum of $6,684.55, less the statutory 5%, equals $6,350.33.

Later, from the happening of events as alleged in declara- 1 tion, it became proper under the law to re-appraise and reassess the inheritance taxes in the estate, and the proper order was procured by claimant from the county court of Cook County, Illinois, reducing the amount of inheritance taxes that actually should have been paid to $3867.39 and showing by finding an order of the county court that claimant was entitled to a refund of $2682.94.

The Attorney General confesses in his plea the facts alleged in bill and consents to an award in favor of claimant, and against the State of Illinois in the said sum of $2682.94, with interest thereon at the rate of 3% per annum from November 6,1911, the date of the payment of the taxes to the present time, as provided under Section 25 of “Act to tax gifts, legacies, inheritances, transfers, etc.”

We accordingly award claimants, as such trustee under the will, the said sum of $2,682.94, with 3% interest thereon from November 6,1911, to the date of this award.


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    (No. 793
    Claimant awarded $1938.20 with interest.)
    Carrie Eisenstaedt, Executrix Under Last Will and Testament of Leopold Eisenstaedt, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 28, 1925.

    Inheritance tax — when refund made, See. 25. Where it appears that an inheritance tax has been assessed and paid, and afterwards it is shown that the appraisers overlooked a codicil to the will and by a mistake the tax was assessed upon the basis of successions through certain clauses of the will instead of the codicil, and upon proper proceedings in the county court the tax was re-assessed, under See. 25, Inheritance Tax Law, and the tax reduced: Held — Claimant entitled to a refund of the difference between the amount of the tax paid and' the amount found due upon the re-assessment of the tax by the county court.
    Sonnenschein, Berkson, Lautmann & Levinson, for claimant.
    Edward J. Brundage, Attorney General ; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Phillips

delivered the. opinion, of the court:

Carrie Eisenstaedt, executrix under the last will and testament of Leopold Eisenstaedt, deceased, files this claim to • recover an award as refund in the sum of $1,938.20.

The facts in the case are that Leopold Eisenstaedt, a resident of the City of Chicago, Cook County, Illinois, died in Chicago May 14,1923, leaving a last will and testament dated January 3,1903, with a codicil thereto attached dated May 21, 1912, which said last will and testament and codicil were duly approved and admitted to record in the probate court of Cook County, Illinois, June 11,1923, and letters testamentary were duly issued to petitioner as executrix and by an order duly entered of record in the county court of said county November 15,1923; inheritance tax appraisement was duly approved and the cash value of the successions, interests, estates, legacies, transfers, gifts and property which the parties interested under the said will were entitled to receive by reason of the death of the decedent and fixed the amount of taxes to which the same was liable at the total sum of $3,399.05, and petitioner, as executrix as aforesaid, paid the sum of $3,229.10 in full of the inheritance taxes assessed, being the full amount thereof of $3,399.05 less the discount of 5% allowed by statute for the payment of said taxes, within six months from the date of the death of decedent.

The appraiser in fixing the inheritance tax overlooked said codicil and by a mistake of fact assessed the tax upon the basis of succession through the second and third clauses of said will instead of through the said codicil, and assessed Carrie Eisenstaedt, widow, upon the value of her widow’s award and the value of a life estate in the remaining assets and assessed Carrie Eisenstaedt as trustee upon the entire remainder of the estate as though trustee, for the use and benefit of a niece or nephew of decedent.

By reason of the said mistake, the petitioner, under Section 25 of the Revenue act, became entitled to a re-assessment of the inheritance taxes as aforesaid and upon the 19th day of May, 1924, a petitioner secured an order through the said county court re-assessing said taxes, and by reason of entry of said order the amount of inheritance taxes which should be paid by the claimant is $1,358.84, less the 5% discount allowed by the statute, making a total sum which should be paid of $1,290.90.

The amount of inheritance tax actually paid to the county treasurer of Cook County by petitioner was $3,229.10, and the claimant, by reason of the reduction of said taxes, became entitled to a refund of $1,938.20, together with interest from November" 14, 1923, at the rate of 3% per annum.

To all of this the Attorney G-eneral consents and agrees to an award in the sum claimed.

It is therefore the order of the court that the claimant be awarded the sum of $1,938.20, together with interest thereon at the rate of 3% per annum from November 14, 1923.


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    No. 846
    Claimant awarded $322.78 with interest.)
    Florence E. Horton, Executrix of Last Will and Testament of Frank L. Horton, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 28, 1925.

    Inheritance tax — refund under Sec. 25 — when made. Where an inheritance tax has been assessed and paid under Section 25, of Inheritance Tax Law, expectant upon the happening of a contingency which does not happen, and upon a re-assessment of the tax, in a proper proceeding, a lesser tax is found to be due the State, claimant is entitled to a refund of the difference between the amount of the tax paid, and the amount found to be due upon t-the re-assessment.
    Albert and Henry Veeder, for claimant.
    Edward J. Brundage, Attorney General ; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Phillips

delivered the opinion of the court:

This is a suit brought by Florence E. Horton, executrix of the last will and testament of Frank L. Horton, deceased, to recover from the State $323.78 as refund of inheritance taxes paid under Section 25 of the inheritance tax laws of this State.

The claimant is the widow of said deceased, a legatee and executrix of the last will of said decedent, who died a resident of Swansea, in the State of Massachusetts, on the 8th day of February, A. D. 1923.

On August 1, 1923, the county judge of Cook County, Illinois, entered an order assessing the taxable property liable for payment of inheritance tax in Illinois and belonging to the estate of said deceased, and fixed the inheritance taxes then to be paid in the sum of $2,199.02, which, less 5%, equals $109.95, and making $2089.07 actually paid August 4, 1923, to the county treasurer of said Cook County. It was paid on the assumption that claimant, the widow, would die within one year;

She still survives, and after the expiration of one year it was lawful and proper for the claimant to make proper application to the county judge to have the property re-appraised and the inheritance taxes re-assessed. Accordingly, on September 19, 1924, the county court of Cook County had the property re-appraised and found the inheritance taxes due to be $1859.25, as shown by copy of the record of said order filed herein.

The said inheritance taxes, $1859.25 less $92.96 (being the 5% statutory discount if paid in six months) equals $1766.29, which, deducted from the amount paid, equals $322.78, amount due petitioner. The petitioner computes the amount due to be $323.78, which is evidently a clerical error, as will appear by her figures. The Attorney General admits the liability of the State in the said sum of $322.78.

The court accordingly awards claimant the sum of $322.78, with 3% interest per annum from the 4th day of August, A. D. 1923, the date of the payment of the taxes by claimant.


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    (No. 855
    Claimant awarded $655.92.)
    Oak Park Trust and Savings Bank, Executor of the Estate of Jesse H. Baldwin, Deceased, et al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 28, 1925.

    Inheritance tax — when refund will he made. Where it is shown at the hearing upon appeal from an order fixing an inheritance tax, that mistakes and errors had been made in the appraisement of the estate and assessment of the tax, a refund' will he made of the amount of the tax erroneously paid.
    Herrick, Vette & Peregrine, for claimant.
    Edward J. Brundage, Attorney General ; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Phillips

delivered the opinion of the court:

This is a claim filed by Oak Park Trust and Savings bank, executor of the will of Jesse A. Baldwin, deceased, Oneida Institute, and Baptist Ministers’ Aid Society of Ohio, Indiana, Michigan, Illinois and Wisconsin for refund of six hundred fifty-five and 92/100 dollars inheritance tax erroneously paid to the State.

Jesse A. Baldwin died a resident of Cook county, Illinois, on December 7, 1921, leaving a last will and testament, and letters testamentary issued to the said executor, who is still acting as executor.

Proper,proceedings, were had to fix the inheritance taxes under the laws of Illinois and such tax was fixed and paid. In due time it was discovered by the executor that certain ’mi stakes and errors had been made in the appraisements and assessments, and an appeal was prayed and perfected to the proper court; and on trial on such appeal the court found that claimant had overpaid the sum claimed in this suit, to-wit: $655.92, which petitioner prays may be refunded to it. The record evidence is filed and shows conclusively claimants right to recover the said sum. The Attorney General states that he had read the petition and proof in this case and that he finds same to be true and in writing- consents to the allowance of the claim.

The court accordingly awards claimant the sum of $655.92.


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    (No. 856
    Claimant awarded $1,575.08 with interest.)
    Rhode Island Hospital Trust Company, as Executor of the Estate of William A. Hoppin, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 28, 1925.

    Inheritance tax- — when claimant entitled to refund, See. 25. When by' the happening of certain contingencies contemplated by the will, the estate, upon proper proceedings is re-appraised and the tax re-assessed, claimant is entitled to a refund of the difference between the amount of the tax originally assessed and the amount found to be due upon the re-assessment.
    Fisher, Boyden, Kales & Bell, for claimant.
    Edward J. Brundage, Attorney General; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Phillips

delivered the opinion of the court:

On January 27, 1915, William A. Hoppin died a resident of the city of Providence in the State of Rhode Island, leaving a last will and testament, appointing Rhode. Island Hospital Trust, a corporation, as executor of said estate. The will was duly admitted to probate in the courts of Rhode Island and said claimant duly qualified as executor as directed in the will of said deceased, under the law of said state-, and as such executor is still acting*.

On March 23, 1917, an order was entered of record in the county court of Cook county, Illinois, in the matter of the inheritance tax appraisement of the estate of said William A. Hoppin, deceased, the total clear cash value of all the property appraisable in said estate by reason of the death of said decedent was found to be $74,605; and the value of certain successions, interests, estates, legacies, transfers, gifts, and property which the beneficiaries under the will of said decedent, and the amount of tax to which the same was liable together with their respective statutory exemptions are shown in the declaration, and in copy of will attached; and the total inheritance tax was fixed and determined at $2,095.98 which was paid to .the county treasurer of Cook county, Illinois, March 30, 1917, together with 6% interest from January 27, 1915, amounting to $273.18 and making a sum total of $2,369.16 paid as aforesaid.

In the will various provisions, conditions and restrictions and contingencies were expressed which are unnecessary here to mention. On the death of Virginia Wheaton Hoppin June ' 28, 1924, and by reason thereof, all contingencies and conditions contemplated in and by original appraisement and assessment of inheritance taxes became extinguished, and a reappraisement of the estate and a re-assessment of the inheritance taxes to which the same was liable, was made by the county judge of Cook county aforesaid and entered of record November 24, 1924, by the county judge of said county in which it was ordered and decreed that the cash value of the successions, interests, estates, legacies, transfers, gifts and property, weré entitled by reason of the death of said decedent to be re-appraised which was accordingly done, as shown by said order, a copy of which is on file herewith.

A certified copy of said order so entered by the court November 24, 1924. From the record evidence .on file it is shown that the sum lawfully due and payable March 30,1917, was only $702.52 with 6% interest from January 27, 1915, which totaled makes the amount of $794.08; that on said last date claimant paid to the county treasurer of Cook county, Illinois, the sum originally fixed in the first proceedings in the county court and entered of record, to-wit: $2,369.16.

By the happening of certain contingencies and the reappraisement being made and the amount of inheritance taxes re-fixed as aforesaid by the county court November 24, 1924, it is evident that claimant legally became entitled to a. refund of the difference between $2,369.16, the amount paid by him and the said sum of $794.08, to-wit: the sum of $1,575.08 which said sum last mentioned the court finds is due and payable to claimant with 3% thereon from March 30,1917.

This the Attorney General in his plea confesses is due from the State of Illinois to claimant and consents to a judgment for same.

The court accordingly awards to claimant a refund of $1575.08 with 3% interest per annum thereon from March 30, 1917.


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    (No. 579

    Claim denied.)
    Henry Himsteadt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 29, 1925.

      Quarantine — non-liahility of State. This ease is-similar to that of Maze v. State, supra, and the decision of the court there announced governs this case, as to the non-liability of the State.
    Turner, Holder & Burlington, for claimant.
    Edward J. Brundage, Attorney General ; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Phillips

delivered the opinion of the court:

Henry Himsteadt, the claimant, files his declaration asking for an award in the sum of $650.00 claiming that is the value of straw burned on his premises in the year of 1921 by order of the Agricultural Department of the State of Illinois in the quarantined district embracing his lands and the lands of many other farmers in which they were quarantined against an infection known as “Flag Smut.”

In that same year the said department ordered his straw and all other straw in the infected district to be burned, which accordingly was done, and his claim is so filed.

In the case of Joseph Maze, against the State of Illinois, in Case No. 21, an opinion was filed on the 28th day of January, 1925, embracing the same facts as the case at bar.

The opinion is written fully in the last above named report and states our entire reasons for the opinion expressed therein, and the same governs in this case and for the reasons « expressed in the case heretofore mentioned. The claim is therefore disallowed, demurrer is sustained and the case dismissed.


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    (No. 726
    Claimant awarded $2500.00.)
    W. A. Hines, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 29, 1925.

    Governmental function — not liable for injuries sustained by its employees. The State in conducting the Illinois State Reformatory exercises a governmental function and is not liable for injuries sustained by its employees therein, while in the discharge of their duty.
    Social justice and equity — award may be made. Although the State is not liable claimant may be awarded compensation as a matter of social justice and equity.
    W. A. Hines, for claimant.
    Edward J. Brundage, Attorney General ; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The declaration filed in this case shows that the claimant, W. A. Hines, is a resident of the City of Pontiac, Livingston County, Illinois; that said claimant on January 1, 1923, and for a long time prior thereto was a civil service employee of said State of Hlinois and was employed in the State Reformatory, said State Reformatory being an institution under the control of said State of Illinois; that by the direction of the officials of said State institution, he, the said claimant, W. A. Hines, was on January 1, 1923, stationed as chief electrician of said State institution; that on said date there was urgent need for said claimant’s services in what is known as South Cell House, and while in the performance of his duties and while using due care for his own'safety, said claimant slipped and fell from a ladder to the cement floor of said cell house, a distance of ten and a half feet, causing the ligaments of both feet to be torn and injury to both of said claimant’s ankle joints, resulting in a marked periositis, also a constant lameness and soreness in his left shoulder and causing him to be sore, sick, bruised and disabled for a period of ten weeks, and that he has been informed by his physicians that the lameness in both ankles is permanent. Claimant’s age is shown to be 55 years; that he has a family, consisting of himself, wife and one minor child; that he has been employed at the Illinois State Reformatory continuously since January 5, 1897, as a school teacher for nine years, clerk in the assistant superintendent’s office for two years and for the past twelve years as chief electrician.

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

The Attorney General entered into a stipulation with the claimant herein, wherein it is stipulated by and between the claimant, W. A. Hines, and the defendant, the State of Illinois, by Edward J. Brundage, Attorney General, that the affidavit of I. M. Lish and the signed statement of Dr. J. S. Marshall and Dr. E. C. Beatty, attached to said stipulation, marked Exhibits “A” and “B,” respectively, may be considered by the court as evidence on behalf of the defendant in this cause, as fully as if said affiants had appeared and testified and their testimony had been taken in the form of depositions before a commissioner duly authorized to take evidence in this cause.

From the evidence of I. M. Lish, general superintendent of the State Reformatory, located at Pontiac, Illinois, a State institution, it appears that on January 1, 1923, W. A. Hines, electrician, employed at said institution, was going up a ladder in the South Cell House to inspect a motor located on a platform above a heating fan, about 15 feet above the concrete floor; that when a distance of about 11 feet from the floor, he slipped and fell from the ladder, landing on his heels, causing torn ligaments in both feet and injury to both ankle joints; that said claimant was off duty ten weeks, during which time he received free medical treatment, nursing service and full pay; that said claimant is still lame and that he (Lish) recommends that damages be paid said claimant.

The evidence of the attending physicians is that said claimant was injured January 1, 1923, by falling from a ladder; that they made an examination at the time, which showed both feet contused and swollen; that claimant was put to bed, proper and necessary medical treatment was administered; that claimant returned to duty walking on crutches, which he had used from the 12th day of January, 1923, he returning to duty April 12, 1923; that at the present time (December 19, 1923) said claimant has a limping, halting, shuffling gait; that the injury, in the judgment of said attending physicians was a laceration or tearing of the ligaments at the lower end of the tibia and fibula, at and near the ankle joints, also of the ligaments supporting the bones of either foot; that the ankles at this time (one year after) are much enlarged, motion impeded in either foot fully one-half normal, due to a partial ankylosis following the inflamatory action; that'the claimant, in the judgment of said attending physicians, is unable to perform his work as he formerly would do, as a result of said injury, and that the condition is permanent.

The evidence of the claimant is substantially the same as set forth in said declaration.

The court is fully aware that the doctrine of respondeat superior is not applicable to the State and it has been so held by this court in numerous cases; that the State, in the absence of statute, is not liable for the torts of its officers, agents or employees; that the State, in conducting the Illinois State Reformatory at Pontiac, exercises governmental function and is not liable for injuries to those in attendance upon said institution.

The claimant has given the best years of his life for the welfare’ of this State institution, his injury, according to the evidence of the attending physicians, is permanent; said claimant will never be' able to perform the same duties as efficiently as he did before the injury. The State may deem it advisable to dispense with the services of said claimant on account of said injury, thus throwing him out of employment, and his physical condition would rende’r it almost impossible for him to procure employment elsewhere.

It is the opinion of the court, that in equity, good conscience and social justice, said claimant should be entitled to compensation from the said State of Illinois for the injury sustained and for his evident permanent disability.

We therefore award said claimant the sum of $2,500.00.


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    (No. 758
    Claimant awarded $6,122.38 with interest.)
    Arthur T. Walker, Executor Estate of Edward F. Searles, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 29, 1925.

    Inheritance tax- — when claimant entitled to refund, See. 10. Where an inheritance tax has been erroneously assessed, and is paid, and und'er an order of court the estate is reappraised and the tax re-assessed, claimant is entitled to a refund of the difference between the amount of the tax paid and the amount found due upon the re-appraisement and' re-assessment with interest at 3%.
    Taylor, Miller, Dickinson & Smith, for claimant.
    Edward J. Brundage, Attorney General; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Phillips

delivered the opinion of the court:

The claimant, Arthur T. Walker, executor of estate of Edward F. Searles, deceased, files this declaration for refund of inheritance taxes claimed to be due him as such executor by reason of an erroneous assessment having been made heretofore, the appraisement and assessment having been made and the mistake discovered; thereafter on the 28th day of December, 1923, an order was made by the county judge of Cook county re-assessing and re-appraising said estate; a certified copy of such proceeding being filed herewith.

By reason of such re-assessment and re-appraisement the court found that the claimant was entitled to a refund of inheritance taxes, heretofore paid in the sum of $6,122.38.

The Attorney General admits the facts in this case as alleged by the claimant and consents in writing to an award in favor of the claimant in the said sum of $6,122.38 with 3% interest on said sum from December 28,1923.

The court therefore awards the claimant said sum of $6,122.38 with interest at the rate of 3% from December 28, 1923.


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    (No. 769
    Claimant awarded $3500.00.)
    Raymond Thompson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 29, 1925.

    Governmental function — not liaile for injuries sustained iy inmate of its institution. The State in conducting, and in repair of the Illinois State Reformatory at Pontiac, exercises a governmental function and is not liable for injuries sustained by an inmate thereof while working under the order or direction of the officers or agents of the institution.
    Social justice and equity — award may ie made. Although no legal liability exists against the State for injuries sustained' by an inmate of its institution, yet where the evidence and circumstances justify it, the court may enter an award in favor of claimant as an act of social justice and equity.
    Oscar J. Putting, for claimant.
    Edward J. Brundage, Attorney General; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This is a case filed by Raymond Thompson, the claimant, by O. J. Putting, his attorney. The declaration states that on to-wit: the 28th day of November, A. D. 1922, the claimant, Raymond Thompson, was an inmate of the Illinois State Reformatory, at Pontiac, Illinois, under sentence of the circuit court of Sangamon county, in said State of Illinois, and was then and there engaged in serving his time in compliance with said sentence of said court, and was in the care, custody and control of the officials and representatives of said State • of Illinois, in charge of said Illinois State Reformatory. The claimant avers that on the 28th day of November, A. D. 1922, at the place aforesaid, he was ordered and directed by certain persons and officials of the Illinois State Reformatory, who then and there had charge and control of him, the claimant, to assist in taking down certain forms in and near certain concrete work in and near said Illinois State Reformatory where certain improvements were being made in and about the property of the State of Illinois; that in obedience to the orders and directions of said persons and representatives of the State of Illinois, he did assist in taking down said forms and woodwork in and about said concrete work; and the claimant avers that while he was thus engaged in said work in obedience to the orders and commands of said persons Said concrete work gave way and fell upon him, the claimant, knocking him to the floor and ground there with great force and violence, breaking bones of the claimant and bruising and lacerating him about the body.

It is stipulated and agreed by and between Raymond Thompson, the claimant, and Oscer J. Putting, his attorney, and the State of Illinois by Edward J. Brundage, its Attorney General, that Raymond Thompson on or about the 28th day of November, A. D. 1922, was an inmate of the Illinois State Reformatory at Pontiac, Illinois, under sentence of court, and that he was confined in such institution serving such sentence of Court; that at the time in question said Raymond Thompson was a minor of the age of nineteen (19) years, and was in good health until he received the injuries hereinafter mentioned; that at the time in question the officers of said Illinois State Reformatory and the State of Illinois were engaged in certain construction work and in making certain improvements and repairs in connection with one of the buildings of said Illinois State Reformatory; that in the course of said work a certain concrete arch was constructed, by erecting certain forms and pouring concrete therein; that at the time in question said Raymond Thompson, together with certain other inmates of said institution, was ordered to assist in removing said forms surrounding said concrete arch, before said concrete had become properly set and hardened.

It is further stipulated and agreed that while said forms were being removed from said concrete arch, and while the said Raymond Thompson was then and there engaged in obeying the orders and directions of the officers of said Illinois State Reformatory by assisting in the removal of said forms from said concrete arch, said arch broke and fell and certain portions of said concrete in said arch of great weight fell and the said Raymond Thompson was struck.by certain portions of said forms and concrete and knocked to the floor and ground there with great force and violence whereby and in consequence of which the vertebra of the said Raymond Thompson was broken and crushed and dislocated, whereby and in consequence of which said Raymond Thompson was then and there seriously and permanently injured;, that his back was broken and he was then and there paralyzed from the waist line on down through both of his legs and feet; that since said date of November 28, A. D. 1922, he will be a bed patient so long as he lives; that he will be utterly helpless and unable to provide anything by way of his own necessaries and maintenance; that he is a young man of no prospects of receiving money or assistance except by charity; that he is dependent solely on his mother for support at this time; that his mother is a poor woman with no means of any kind except what she is able to earn by means of doing-family washing’s and other similar forms of labor for other people; that said construction work was in charge of and under the control of Chief Engineer Frank Gifford, who is no longer in the employment of said State of Illinois, having-resigned from his position on the 14th day of October, A. D. 1923; that the cause of the injury of said claimant, Raymond Thompson, was carefully investigated by the Department of Public Welfare of the State of Illinois under the direction of the Honorable Sherman W. Searle, Assistant Director of said Department of Public Welfare; that in making said investigation said Sherman W. Searle took statements from different persons and had the same reduced to typewriting and reported the same to the Department of Public Welfare, together with the conclusions of him, .the said Sherman W. Searle, from such investigation; and that a full and complete copy of such statements and conclusions of said Sherman W. Searle comprising- a complete copy of his report is hereby attached and by this stipulation is admitted as the evidence in this case.

It is further stipulated that the copies of the letters hereto attached are copies of letters of the doctors who acquainted themselves with the physical condition of said Raymond Thompson, and that such copies do correctly set forth the said Raymond Thompson’s injuries and his physical condition.

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

From the stipulation on file in this court, and from the evidence of Sherman W. Searle, Assistant Director of the Department of Public Welfare, Dr. J. A. Marshall, Frank A. Gifford, William H. Eater, Wray W. Call, John R. Clevenger, .and James W. Jones, the court finds that the said claimant, Raymond Thompson, is entitled to an award; and the court recommends that a trustee be appointed by the circuit court of Sangamon county, Illinois, to take charge of said sum of money so awarded said Raymond Thompson, invest same and to dispose of same in caring for and providing the necessary wants and comforts for the said Raymond Thompson, and that the attorney fees of Oscar J. Putting, attorney for said claimant, Raymond Thompson, be fixed by said circuit court of Sangamon county.

The court therefore awards to the said claimant, Raymond Thompson, as an act of social justice and equity, the sum of $3,500.00.


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    (No. 853
    Claimant awarded $1375.00.)
    W. O. Potter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 29, 1925.

    Fees and salaries — salary of city judge — how fixed. The salary of a city judge is not fixed by law, but by the number of inhabitants of the city in which he is elected. (Sheldon v. State, 4-C. C. Rep. 353 followed.)
    Sims, Welch, Godman & Stransky, for claimant.
    Edward J. Brundage, Attorney General; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a case brought by the claimant for the purpose of recovering for additional compensation for service as judge of the city court for the City of Marion, Illinois, from June 24, 1919, to October 1,1922, it having been stipulated between the parties that the City of Marion as fixed by the census of 1910 was 7,093, that on January 1,1920, federal census showed the population of said City of Marion was 9,582, and that no other census was taken prior to October 1, 1922, and that said claimant was paid a salary of $1,500.00 per annum during, his entire term; that he demanded'his salary at the rate of $2,000.00 per annum from and after January 1, 1920.

As heretofore stated by this court in the case of Sheldon v. State of Illinois, 4 Court of Claims Reports 353.

The salary of a city judge is not fixed by law, but by the number of inhabitants of the city in which he is elected.

It is the opinion of this court that no reason appears from the record in this case that any departure should be made from the rules of the court in the Sheldon case above mentioned.

It is therefore recommended by this court that the claimant be allowed the sum of $1375.00 as additional salary based upon the population of the City of Marion for the period of two and three-fourths years.


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    (No. 7
    Claim denied)
    Anna Klitzke, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1925.

      Lease — when no recovery can he had on — limitation statute. Where it appears upon the face of claimant’s statement that the claim is barred by the statute of limitations an award will be denied. (Jackson v. State, 4 C. C. Rep. 333, followed.)
    Tatge & Tatge, for claimant.
    Edward J. Brundage, Attorney General; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears from the claimant’s statement that a lease was entered into by the said claimant and the Illinois National Guard for the period of one year from May 1,1915, which was a continuance of a former arrangement.

The rental for this particular period was to be $70.00 per month for a period of one year. It further appears by the statement that the guard occupied said premises during said period until August 31, 1915, and paid rent up until that time upon that date or before rent was paid as agreed, but did not pay rent for the balance of period of eight months.

The claimant makes an additional claim for $70.87 for repairs.

The defendant comes in and urges the Statute of Limitations, and this court in this claim in following its language;

In Jackson v. State of Illinois, 4 Court of Claims, 333, this court said:

“It is also the duty of this court to do justice to the people of the State and that wherein a claim is hot brought forth within a reasonable time, it should not be allowed.”

It is the opinion of this court at this time that the claim brought should at least be within the rules prescribed by law. In the first place that the people may know their tax burdens and the second place so that evidence would not become stale or lost, and, therefore, for the reasons assigned, the claim is denied.


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    (No. 24
    Claimant awarded $3044.41.)
    The Equitable Life Assurance Society of the United States, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1925.

    Governmental department — when moneys paid into will he refunded. Where moneys have been paid to a Department of the State, und'er protest, and by the Department paid into the State Treasury, and' it afterwards appears that the State is not entitled to it, the court will enter an award for the refund of the moneys paid.
    Mayer, Meyer, Austrian & Platt, for claimant.
    Edward J. Brundage, Attorney General ; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Phillips

delivered the opinion of the court:

The Equitable Life Assurance Society of the United States, a corporation under the laws of the State of New York, claimant, presents its claim herein, praying for a refund of $3044.41, which it alleges was paid to the State of Illinois under protest, to the Department of Trade and Commerce of the State of Illinois, November 20, 1918.

In June of the same year, in connection therewith, claimant had paid to said department $22,469.82. The department, however, would not accept this in full, but insisted upon the payment of $3044.41 additional, believed by the department to be due it from the claimant.

The evidence before the court is by'stipulation in writing of the facts and the laws governing by counsel for the respective parties; but it is quite lengthy and unnecessary to state in the opinion.

Under the laws of New York governing the making of such reports to the said department, some doubt existed as to allowing certain credits mentioned in the stipulation, and a suit was then pending in the New York courts to construe the law relative thereto. The case went to the New York Court of Appeals, where it was finally decided favorably, to the contention made by claimant in this case, as to the meaning and force of the New York laws governing such reports.

In the meantime, however, and before the final opinion was so rendered, as stated, the Department of Trade and Commerce made demand on claimant to pay the said additional sum of $3044.41. Relative to this some correspondence was had between the claimant and the Department of Trade and Commerce, and it was tacitly agreed that the said last mentioned sum might be paid “under protest,” awaiting the finding of the court of appeals as aforesaid.

In the course of time, an opinion was handed down by said court, which, in effect, sustains the contention of the claimant in this case, and is admitted by the Attorney General of Illinois, and, accordingly, claimant wrote a letter to Mr. W. H. Boys, demanding a return of the said sum. Mr. Boys was succeeded by George A. Barr, and he in turn by William A. Murphy. The correspondence between claimant and' the various directors aforesaid that it certainly was mutually understood, if not actually agreed, that this amount would be or should be refunded to claimant if the said court of appeals should hand down the opinion, which it finally did; but this $3044.41 had never been turned into the state treasury, and it was agreed by the director and claimant that it be turned into the state treasury as an accommodation to all parties and to relieve the director from further carrying it. It having been turned into the treasury, there is no way for claimant to withdraw it, except through an award by the Court of Claims.

The Attorney General, by his brief herein, recognizes and admits the claimant’s equitable right; and that when the sum was paid into the Department of Trade and Commerce that it was to be held pending the action of the court in said cause. The Attorney General says, however, that claimant paid it voluntarily and not under protest, and that money paid voluntarily, without protest, cannot be recovered, etc. The correspondence between the claimant and Fred W. Potter, superintendent of trade and commerce, shows very clearly that the last payment was made “under protest.”

The evidence shows conclusively that the claimant did not at the time, nor since, owe the said Department of Trade and Commerce the sum of $3044.41, or any part thereof, and that claimant is entitled to a refund of same, which, as a matter of- law, equity and good conscience, should be refunded. We accordingly find in favor of claimant and against defendant and award claimant the sum of $3,044.41.


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    (No. 642
    Claimant awarded $200.00.)
    William B. Sinclair, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1925.

    Respondeat superior — state not liable for torts of inmates of its institutions. The State is not liable for the 'torts or acts of inmates of its institutions.
    Social justice and equity — omard may be made. The court may upon grounds of equity and' social justice enter an award in favor of claimant although no legal liability exists against the State.
    Charles C. Ellison, for claimant.
    Edward J. Brundage, Attorney General ; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Phillips

delivered the opinion of the court:

This is an action brought by William B. Sinclair of Alton, Illinois, to recover damages for damage and destruction of personal property of claimant by inmates of the State Insane Asylum at Alton, Illinois, in 1922. The evidence is conflicting as to the amount of damage inflicted, and uncontradicted as to the remainder of facts related by claimant in his declaration and supported by his deposition, taken by stipulation by counsel of the parties to the suit.

The facts stated in claimant’s declaration and the evidence are substantially as follows: The claimant operated a farm about one-half mile west of Alton Hospital for Insane in June, 1922, and prior to and subsequent to that date. He, claimant, was the owner of one horse* for which he paid $150.00 some time prior thereto, and a one-horse wagon or shay, which was valued at $15.00. He was also engaged in raising fancy, thoroughbred Rhode Island Red chickens, which valued at about $4.00 each. Some of them were capons, the rest breeders.

On June 22 of that year an inmate, or inmates, of said institution slipped away from the guards and went to the house of claimant practically in a nude condition, having a few strips of ribbons or rags tied about him, and then and there began the destruction of the personal property of claimant, in claimant’s absence. Claimant was called to the house and found that about 106 of his Rhode Island Reds had been beaten up, crushed and killed and some of them put in several sacks, and great quantities of feathers at different points on the premises. The insane inmate had hitched np the farmer’s (claimant’s) horse to the wagon in question, attacked him or frightened him, causing him to run away with the “shay” attached. After the horse ran some distance, he landed into a ditch with the wagon. The horse’s jaw was broken, his back hurt, so that the horse always walked unsteady and wabbly thereafter, and he later sold the horse for about $73.00, and the horse soon died thereafter; but as to whether the death of the animal was caused by the injury received in the “dump heap” in the ditch when the horse and shay went into the ditch, is not in evidence in the case.

Dr. Trovillion, the superintendent of the said insane asylum, and guards came up after the aforesaid happenings and captured the escaped inmate who had wrought the destruction and damage aforesaid, and took him back to within the confines of the asylum. It was then and prior to this the custom and practice of said institution to allow the inmates “non-restraint,” so-called by the prison authorities, but kept them guarded. Dr. Trovillion could not estimate the loss of fowls at over two dozen, and in this he was corroborated by other witnesses. He gave it as his opinion that the old wagon was at time of the wreck practically worthless. The veterinarian stated that the horse would fully recover. It seems to us that the claimant could have easily produced the evidence of others as to value of the fowls, horse and wagon, but did not. It should have been done. But the evidence of Dr. Trovillion and others in part corroborate the evidence of claimant. As the evidence is conflicting, it leaves it up to the court to make a rough guess at the real amount of damage sustained on the occasion.

In this unfortunate matter, claimant is certainly without fault. The practice of “non-restraint” in the management of the inmates of any state asylum for the insane should cause the State to exercise a high degree of care and watchfulness in the care of the inmates. Whether the State was exercising such care at the time of the commission of this act causing the claimant to lose his property is not in evidence.

It is not clear in the mind of the court, from the conflicting evidence, whether claimant lost 106 chickens, or two dozen only. No evidence is given to show the value of the horse and wagon before they were damaged. While, as a matter of law, the State is not liable for damages committed by an insane inmate of the State’s asylum, yet under the particular circumstances surrounding this case, social justice, equity and good conscience impel us to award the claimant.something for the loss of his property. In the analysis of the- conflicting evidence we have concluded to and do hereby find in favor of claimant and award him $200.00.


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    (No. 701
    Claim denied.)
    Leavie Smith et al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1925.

    Non-liability of state — state highways. The State in the maintenance and'repair of its highways used exclusively by its institution is not liable for damage to an adjoining property owner by overflow water resultant to the repair of such highway, even though the highway is used by the public.
    Wm. H. Schwerk, for claimant.
    Oscar E. Carlstrom, Attorney General; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The declaration in this case sets forth that the claimants herein owned four lots, being a part of subdivision of a certain tract lying one-half mile west of the City of Chester, Illinois, during 1922, said lots fronting on Kaskaslda street, a public highway; that there was a dwelling house which claimants allege had a market value of $1,350.00; that Leavie Smith, Ardell Smith, Walter Smith, Grace Smith, Edith Smith and Hazel Smith are minors; that on April 1, 1922, they were the owners in fee simple of the following described real estate: Lots Twenty-five (25), Twenty-six (26), Twenty-seven (27) and Twenty-eight (28) in the subdivision of a part of the Northeast Quarter and the Southeast Quarter of Section Twenty-three, Town Seven, South, Bange Seven West, in Bandolph County, Illinois, lying about one-half mile west of Chester, Illinois; that the State of Illinois kept and maintained a highway for the exclusive use of the Criminal Insane Asylum, a public institution owned by the State of Illinois, at Menard, Ill., said highway being located immediately in the rear of said lots at an elevation of about sixty feet above the front elevation of said lots; that between March 26, 1922, and . April 15, 1922, and at different, times thereafter, convicts from the Illinois Southern Penitentiary under the control of and at the direction of the warden of said penitentiary and the superintendent of the Criminal Insane Asylum at Menard, Illinois, had hauled large quantities of rock and dirt and had filled it in along said highway at the rear of said premises; that said fill was made in a negligent and careless manner, diverting the natural Sow of water along said highway, causing it to flow into, over and upon the premises of the claimants; that the water flowing as aforesaid over the claimants’ premises caused large quantities of dirt on the rear of said premises to move and slide toward the front of said premises, thereby rendering the house and buildings on said premises unsafe and thereby depreciating the fair cash market value of the premises in the sum of $750.00.

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

The evidence shows that there was a natural elevation at the rear of said lots; that it is very hilly in that immediate vicinity; that the State of Illinois endeavored to provide and maintain a roadway, not only for its own use, but for the use of the public; that there was heavy rains in the spring of 1922, and said rains caused a slide above and below the roadbed, which would have occurred regardless of there being a road there. There is also some evidence that the same rent was paid to claimant after this slide happened as was paid before.

None of the witnesses testified to any personal inspection or examination of the hill from which they could tell the reason for the slide of earth. There seems to be no controversy but what slides occurred there before the State had repaired this road.

That the State of Illinois is not liable, there is no question. It would be against public policy to allow claims of this nature against the State of Illinois, and we therefore deny the claimants an award in this case.


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    (No. 707
    Claim denied.)
    William L. Corris, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1925.

      Services — rules of court must he complied with. The rules of the court must be complied with by claimant before he is in position to ask an award for services rendered.

      Same — consent by State officer mil not dispense with rule of court. Consent to an allowance of a claim by a State officer will not dispense with a compliance with the rules of the court.
    Oscar J. Putting, for claimant.
    Edward J. Brundage, Attorney General; Floyd E. Britton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The claimant, William L. Corris, by Oscar J. Putting, files his declaration herein setting forth that said claimant was active in procuring reports and transcripts of testimony and evidence in a certain proceeding that was pending- before the Illinois Commerce Commission on the 15th day of July, 1921, and prior thereto, wherein an application was filed in behalf of the city of Chicago, for the reduction of. gas rates in said city by the People’s Gas Light and Coke Company; that said hearing was had on said petition in said city of Chicago for a number of days; that in the course- of said proceedings the Attorney General (then Edward J. Brundage) directed one of his assistants, Assistant Attorney General Matthew Mills, to assist in said hearing before said Illinois Commerce Commission; that in his endeavor to render services to the said Illinois Commerce Commission and the State of Illinois in accordance with the wishes of said Attor- ' ney General Edward J. Brundage, said Assistant Attorney General Matthew Mills did attend said hearing regularly and attended the taking of testimony and the obtaining of transcript of certain evidence, that the sum of $1610.00 is now . due claimant for services rendered.

The Attorney General, Edward J. Brundage, by Floyd E. Britton, filed his consent to the award.

There is no evidence before this court as to the number of days of service rendered by said claimant, neither is any evidence before the court that said services was rendered by and with the consent of the Commerce Commission.

There is nothing but the bare statement of claimant that the services were rendered. .

Owing to the lack of proper evidence and the absolute failure of the claimant to comply with the rules of the Court of Claims, the case is dismissed and with the recommendation that no award be made.


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    (No. 717
    Claimant awarded $100.00.)
    Thomas F. Trede, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1925.

    Respondeat superior — when State not liable. The State is not liable for injuries sustained by its employees while in the performance of their duty.
    Social justice and equity — award may be made. The court may on ground of social justice and equity enter an award in favor of claimant.
    E. A. Perry, for claimant.
    Oscar E. Carlstrom, Attorney General; S. S. DuHamel, Assistant Attorney General, for respondent.
   Mr. Justice Phillips

delivered the opinion of the court:

This is a suit brought by claimant, Thomas F. Trede, to recover for personal injuries alleged to have been incurred by him while in the employ of the State at the fair ground in May, 1922. Claim was filed June 29,1923, and evidence taken by. stipulation and filed February 14, 1925.

Claimant alleges that while endeavoring to operate a tractor for the State, he received a slight cut over the left eye which caused him to lay off of the job a week, and pay a doctor’s bill of five dollars for taking two stitches in the wound above the eye, and that the cut caused a scar that causes a permanent disfigurement of the face.

The evidence shows that he was paid for the entire time he lost on account of the injury. When he finally quit his job, he did not do so as a result of any injury received. There is no evidence of any suffering of consequence; or that he was confined to his bed or house in consequence of the injury. From our analysis of the very meager evidence as to his disfigurement, we are inclined to think it very slight. One of his witnesses testified “it only showed a little streak about three-fourths of an inch long; and that if he were not looking-for the injury, he would not likely notice it a few feet away.” He was endeavoring to run the tractor without ever having had any experience and was awkward in his efforts to do so: hence the accident. There is no evidence that the $5.00 he paid the doctor for taking the two stitches was paid to him by the State. He suffered very little, and that only for a few days. While the claim seems to ns quite trivial, yet he was in the employ of the State at time of the accident. We have decided to and do award claimant $100.00.


author: Mr. Chief Justice Leech

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    (No. 723
    Claim denied.)
    Rector Egeland, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1925.

    Civil service — when salary not allowed. Where claimant under Civil Service employment of the State, under an indefinite leave of absence, enters the U. S. Military Service and is discharged therefrom, the State is not liable to him for any salary during the time of his absence.

      Same — reinstatement is in discretion of commissioners. The reinstatement of an employee in the service of the State is a matter left to the discretion of the Civil Service. Commission.
    Paul W. Herbert, for claimant.
    Oscar E. Carlstrom, Attorney General; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Chief Justice Leech

delivered the opinion of the court:

The complainant alleges that he was a duly certified rod-man under civil service in June, A. D. 1916, and by another examination in January, 1917, he was certified as topographic draftsman and did for said work receive a mo'nthly salary of $150.00. The claimant further alleges that in May, .1917, he entered United States military service under indefinite leave of absence. Claimant further states that he was to be reinstated when he was discharged from military service. Claimant further alleges that he was refused reinstatement upon his application made in July, 1919; that he persisted in his demand for reinstatement up until July, 1921, and that during that time he made claim for payment of salary- for eighteen months at $150.00 per month.

The defendant, by the Attorney General, comes ■ and files its demurrer, whereupon it is considered that as a matter of law the demurrer should be sustained.

This is a ease similar to another filed for the consideration of this court, which claim was denied, and this case inspires in addition to the facts in the other case, patriotic consideration, because of the fact that the claimant took a leave of absence for the purpose of entering military service in behalf of our country, and although the members of this court would personally feel disposed to make an exception in this case for patriotic reasons, yet no exceptions can be made by any court which realizes that they are controlled by the law of the nation or state and cannot therefore depart from the law or the practice because the law of the country and of the state is greater than any court functioning under any system of our laws.

It is the opinion of the court, as stated in the other case, that the question of reinstatement under the powers granted to the Civil Service Commission or any other branch of our State government to discharge employees or to refuse to reinstate other employees on account of the lack of work for such employees or other reasons indicated by laws and usages, is with the discretion of such commission or branch of the State government having control of such employment, and in this case one of the reasons urged by the defendant was the lack of a place giving work for the claimant, and from all the records and evidence before the court, the court cannot find there has been-a breach of discretion that violates the laws of our State or the rules of employment under civil service.

Therefore the claim is denied and the case dismissed.