text:
    (No. 2631
    Roy Titus, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 12, 1936.

    Paul MacGttefin, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeks to recover damages to a car owned by him on account of being struck by a State-owned truck. The claim was filed March 15, 1935 for Three Hundred Dollars ($300.00) and recites that claimant’s wife with claimant’s consent and authority was driving his automobile westward on Church Street in Libertyville on February 5, 1935; that one Felix Sedar was driving a large dump truck northward on Brainard Avenue; that the streets were covered with ice and that due to the reckless, negligent and careless manner in which the driver of the truck was handling same the latter skidded when the driver turned eastward on Church Street and the rear part of the truck collided with claimant’s car to the damage of claimant in the sum of Three Hundred Dollars ($300.00).

Respondent has filed a motion to dismiss the claim under the rule that the State is not liable for the negligence of its agents and employees, unless there is a statute making it so liable; that in this State there is no such statute, and therefore there being no basis of liability on the part of the State for dama'ges sustained that the court is without authority to make an award. In support of said contention the Attorney General cites Derby vs. State 7 C. C. R. 145 and Chumbler vs. State, 6 C. C. R. 138.

A report by R. T. Cash, District Engineer, appearing in the files absolves the driver of the truck from negligence but states that the collision was entirely due to the skidding of the truck and the very icy surface of the pavement. The sworn statement of claim shows the lowest estimate of property damage to be Two Hundred Twelve Dollars ($212.00) and it is unfortunate for claimant to suffer such loss when he was entirely guiltless of any contributory part in such accident. It is also unfortunate that the District Engineer was not familiar with the absence of authority of this court to grant an award in a matter of this kind and that he advised Mr. Titus to file his claim in this court.

As stated in Wetherholt vs. State, 8 C. C. R. 100 and in Trompeter vs. State, 8 C. C. R. 141, “That the State is not liable for the negligence of its servants and its agents while in the exercise of its governmental functions,” and “Before a claimant can have an award against the State he must show that he comes within the provisions of some law making the State liable to him for the amount claimed. If he cannot point to any law giving him the right to an award he cannot invoke the principle of equity to secure the award. ’ ’

It does not appear in the record whether claimant has been reimbursed through insurance for any part of his loss but regardless of that, and being limited to a consideration of the rights involved from the standpoint of the legal liability of the State the court is of the opinion that the motion to dismiss should be allowed. The motion is allowed and the claim dismissed.


source: Caselaw Access Project

author: Mb.. Justice Yantis

license: Public Domain

text:
    (No. 2486
    Air Reduction Sales Co., a Corporation, vs. State of Illinois, Respondent.

      Opinion filed March 10, 1936.

    Rot Geibe Hill, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb.. Justice Yantis

delivered the opinion of the court:

Claimant seeks payment in the sum of One Hundred Eighty Seven and 50/100 ($187.50) Dollars for five oxygen-acetylene gas cylinders. The statement of claim and the proof herein shows that the five cylinders in question and contents were furnished to the Illinois State Penitentiary of Joliet; that as soon as the gas was used the cylinders were supposed to be returned to the owners, as the State paid only for the service and the containers remained the property of claimant herein. Claimant contends that the five cylinders in question were never returned to them and investigation by the Department of Public Welfare discloses no record of any return having been made. The transaction occurred during the incumbency of Frank D. Whipp, Warden, and no record of what became of the cylinders can be found.

Under the circumstances claimant is entitled to payment for the actual cost price of the cylinders in question, which under the proof is shown to be Thirty Seven and 50/100 ($37.50) Dollars each. An award is therefore allowed in favor of claimant in the sum of One Hundred Eighty Seven and 50/100 ($187.50) Dollars.


author: Mb. Justice Yantis

text:
    (No. 1955
    John Callahan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 10, 1936.

    Sam Latham, for claimant.
    Otto Kebneb, Attorney General; Glenn A. Tbbvob, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claimant asks an award of Five Thousand ($5,000.00) Dollars for injuries received by him while employed as an attendant at the Elgin State Hospital on November 13, 1931.

Objection is made by the Attorney General that there is no allegation or proof of a claim having been made for compensation within six months after the date of the injury, as required by Section 24 of the Workmen’s Compensation Act.

A stipulation of facts was filed herein, showing that on said date while engaged in 'the performance of his duty in taking care of patients, one of the latter grabbed plaintiff’s hand and bit him on the left hand, lacerating the skin. A condition of osteomyelitis developed and plaintiff was confined in the Elgin Hospital for thirty days and thereafter in the Research Hospital in Chicago for two months. Plaintiff’s finger became almost rigid and a complete loss of motion has resulted in the second left metacarpal phalangeal joint and distal interphalangeal joint of the index finger; also a restriction of the extension of the elbow of about twenty percent (20%); said condition according to the medical testimony and stipulation constituting a partial permanent disabilty. The stipulation further recites that plaintiff’s hospital expenses and salary during the period of his temporary disability were paid by the State of Illinois. A report by Dr. George A. Wiltrakis, State Physician, under date of November 11, 1935, states that he has that day examined plaintiff; that motion in the left elbow is limited to an angle of about one hundred twenty (120) degrees instead of one hundred eighty (180) degrees; that there is a deformity of the left index finger causing this finger to overlap the middle and ring fingers; that the loss of power of this finger makes it worthless so far as the power to grip is concerned and that such finger is a hindrance rather than a value to the hand.

Dr. John R. Tobin of Elgin, Illinois examined plaintiff on November 15, 1934 and states that the infection of the first finger caused osteomyelitis of the bones in the finger and elbow resulting in a partial ankylosis of both, with a resultant disability of “About 50% of his former usefulness.”

There is no statement in the complaint, stipulation or other evidence as to the rate of wages or pay that plaintiff was receiving in the employment in question. Counsel for plaintiff and respondent discuss in their respective statements and arguments what they believe the wage scale should be. Counsel for respondent in his argument quotes from a letter received by the Attorney General’s Office from the Department of Public Welfare as to the general rule of computing maintenance allowance in connection with salaries of institutional employees.

Because of absence of proof that a claim for compensation was made within six months after the date of injury and because of a lack of other adequate evidence in the record as above noted, the claim is denied and cause dismissed.


author: Mr. Chief Justice Hohlerioh

text:
    (No. 2201
    Mary Hennessey, et al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 10, 1936.

    Claimants, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hohlerioh

delivered the opinion of the court:

John Hoare who was in the military service of the United States from May 31st, 1918 to July 21st, 1919, filed his claim with the Service Recognition Board on January 18th, 1925 for compensation under the provisions of the Illinois Bonus Act. The claim was approved and a warrant in the amount of $208.50 was drawn in his favor on October 30th, 1923 and forwarded to his address. However, John Hoare had died prior to the issuance of said warrant, which was thereafter returned to the Auditor of Public Accounts, and on his order was cancelled on December 4th, 1929.

Said John Hoare left him surviving Mary Hennessey, Patrick Hoare, Maggie Campus, Martin Hoare, and Nellie Fathke, his brothers and sisters, as his only heirs at law.

In 1927 the Legislature terminated the Service Recognition Board by an Act entitled “An Act Terminating the Service Recognition Board, and making provisions for the payment of certain claims for compensation” (Smith-Hurd Revised Statutes, 1935, Chap. 126%, Sec.o 15-1).

Section three (3) of such Act provides as follows:—

“In all cases where claims for compensation have been heretofore or are hereafter allowed by the service recognition board but payment of compensation has not been made either because the claimant or his heirs have not been found, or any other reason, it is the duty of The Adjutant General, as soon as satisfactory proof is furnished to him, locating or identifying the claimant or his heirs or as soon as the disability preventing payment is removed, to certify such fact to the State Treasurer who shall make payment from the Soldiers’ Compensation Fund, in the sum allowed by the Service Recognition Board to the person entitled thereto.”

Section four (4) of such Act appropriates the sum of $140,647.50 for the payment of compensation in accordance with the provisions of Section Three (3) thereof.

On May 21st, 1932 the heirs of said John Hoare filed their application with Adjutant General O. E. Black pursuant to the provisions of said Section 3 hereinbefore set forth, and on October 13th, 1932 such application was approved by the Adjutant General. The appropriation made by the aforementioned Act of the General Assembly, however, lapsed on September 30th, 1929, and consequently there was no fund from which a new warrant could have been drawn in payment of the claim, and claimants’ only recourse is to this court.

Since the approval of said claim by the Adjutant General as aforesaid, the said Maggie Campus died intestate leaving' her surviving Richard Campus, her husband, and Thomas Campus, her son, as her only heirs at law; and the said Mary Hennessey died intestate leaving her surviving James Hennessey, her husband, and Father James Hennessey and Mamie Meegan, her children, as her only heirs at law.

The facts in this case are very similar to the facts in the case of Knarr vs. State 8 C. C. R. 565, in which an award was allowed, and no reason is suggested why an award should not be allowed in this case.

Award is therefore entered in favor of the several heirs at law of John Hoare, deceased, for the respective amounts due them in accordance with the foregoing, to wit:

Patrick Hoare ............................................ $ 41.70
Martin Hoare ............................................. 41.70
Nellie Fathke ............................................ 41.70
James Hennessey, Father James Hennessey, and Mamie Meegan ................................................ 41.70
Richard Campus and Thomas Campus...................... 41.70
Total ................................................ $208.50


author: Mb. Chief Justice Hollerich

text:
    (No. 2540
    Leonard H. Miele, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 10, 1936.

    J. W. Kottoky, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollerich

delivered the opinion of the court:

Prior to and on December 29th, 1933 claimant was employed by respondent as an attendant at the Chicago State Hospital. On the last mentioned date, while attempting to assist a patient, he fell and sustained injuries to his right hand and arm. Upon consideration of the record the court finds:

1. That claimant and respondent were, on the 29th day of December, A. D. 1933, operating under the provisions of the Workmen’s Compensation Act.

2. That on said day the claimant sustained accidental injuries which arose out of and in the course of his employment.

3. That notice of the accident was given to said respondent, and claim for compensation made within the time required by the provisions of said Act.

4. That claimant was in the employ of respondent for less than one year; that the annual earnings of persons of the same class in the same employment and same location, during the year preceding the accident, were $734.40; — and the average weekly wage was $14.85.

5. That claimant at the time of the injury was 49 years of age, and had three children under the age of sixteen years.

” 6. That necessary first aid, medical, surgical and hospital services have been provided by respondent.

7. That claimant was temporarily totally disabled from the date of his injury as aforesaid, to February 8th, 1934, and has been paid in full for such temporary total disability.

8. That claimant sustained the loss of 25% of the use of his right arm.

9. That claimant is therefore entitled to have and receive from the respondent the sum of $13.00 per week for 56% weeks, as provided by Section 8-e of the Workmen’s Compensation Act, as amended.

10. That all of such compensation has accrued prior to this date.

Award is therefore entered in favor of the claimant for the sum of $731.25.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pag Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 2d, 1935 (Session Laws of 1935, p. 40), is, by the terms of such Act, subject to the approval of the Governor, and upon such approval is payable from the General Revenue Fund in the manner provided by such Act.


author: Me. Justice Linscott

text:
    (No. 2431

      J. Benjamin Stout, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 10, 1936.

    O. L. Browder, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

This claim was filed July 11, 1934 against the State of Illinois, as respondent, claiming compensation under the Workmen’s Compensation Act. It appears from the complaint that the claimant on November 21, 1933 was employed by the Illinois Emergency Belief Commission of Work Belief Division in the cities of Champaign and Urbana, Illinois, and was on that date working on a truck owned by the State of Illinois, and was assisting other workmen in delivering sacked flour, and was standing on the rear part of the truck, which was loaded with flour in paper sacks of approximately twenty-five pounds weight per sack; that the driver of the truck caused it to lurch forward with sudden force, which in turn caused a large number of said sacks of flour to slip backward against the claimant, forcing him off the truck and down upon the pavement, and many sacks of flour were piled on top of the claimant.

It appears from the complaint that the claimant did receive serious injury because of this accident, and he alleges that he was not advised at the time of his employment that he was being employed by the Illinois Emergency Belief Commission, being under the impression that he was employed by the Federal Government under what is known as the Civil Works Administration Act and was not advised that he was an employee of the State, but did comply with the provisions of the Act in that he notified his employer, that is, the one who had placed him at work, of his accident at the time of the accident. He was unmarried and had no dependents.

Motion was made by the Attorney General to dismiss on the grounds that the Emergency Belief Commission did not authorize the employment and on the grounds that the claim was not filed within the statutory period. Under the view that we take of the case, it will only be necessary to take in the'latter ground.

Section 24 of the Workmen’s Compensation Act provides that no proceeding for compensation shall be maintained unless claim has been made .within six months after the accident.

Section 6 of the Court of Claims Act gives this court the power to hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any employee of the State, such determination to be made in accordance with the rules prescribed in the Act com-:, monly called the “Workmen’s Compensation Act,” the Industrial Commission being hereby relieved of any duty relative thereto.

Therefore, the provisions of Section 24 of the Compensation Act are pertinent; and it has been frequently held by the Supreme Court of Illinois that the making of a claim for compensation within the prescribed period is jurisdictional and a condition precedent to the right to maintain a proceeding under the statute. (See Lewis vs. Industrial Com., 357 Ill. 309 and cases cited therein.)

It is not claimed that the claimant was mentally incapacitated or a minor. Whether or not a claim for compensation has been made as required is a question of fact to be determined like any other similar question, and the fact that he did not know who employed him, would not be grounds upon which we could set aside this statutory requirement, and nothing appears in the complaint to the effect that he ever gave notice to the effect that he intended to make a claim for compensation.

Motion to dismiss will, therefore, be sustained.


author: Mb. Justice Linscott

text:
    (No. 2200
    Frank Styka, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 10, 1936.

    Wachowski & Wachowski, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

The complaint charges that on the 18th day of November, 1932, the claimant was the owner and occupant of the premises commonly known and described as No. 15439 South Halsted Street in the Village of Phoenix and State of Illinois ; that said premises were supplied with illuminating gas by mains and pipes running underground from a point approximately 20 feet South of said building, and from thereon Northerly through the' foundation of said building and into the basement and continuing in said basement to a meter and various other parts of said building. It is charged that Halsted Street is a State Highway, and is being maintained by the State. It is also charged that the said illuminating gas was poisonous and when inhaled in sufficient quantities by human beings will cause serious injury or death, and it is charged that it was the duty of this State to erect and maintain a standard set of warning signs and direction posts of uniform design throughout Halsted Street and at the intersection of the street adjacent to claimant’s premises. It is also alleged that it was the duty of the State to erect those signs so as not to damage property or do damage to or injury to life, but notwithstanding this duty, it so negligently and carelessly erected a sign at the North-East corner of 155th Street and Halsted Street that it broke one of the gas pipes leading to the basement of claimant’s premises, and that this was done on or about the 18th day of November, 1932.

It is also alleged that at the time, the ground surrounding the place where the said sign was erected, was frozen and there was an impenetrable coat of ice, over and upon the surface of the earth at and near the place of the erection of said sign, and that prevented the gas from escaping through the surface of the ground at any point nearer than the basement of the claimant’s premises, and because of this, the plaintiff was badly poisoned and has suffered damages in the sum of $10,000.00.

A motion was made by the Attorney General to dismiss this because the State is not responsible for the negligent and careless acts of its servants in the erection of the sign.

It is not averred or charged that the State knew, or by the exercise of due care and caution should have known, that there was a gas pipe containing poisonous gas immediately under the sign that was erected, or that by the placing of the sign the State knew or should have known of the existence of the gas pipes and it would seem from authorities that even if the knowledge was possessed by the State that there could be no recovery from the State for the reason that in the construction and maintenance of its roads, the State acts in a governmental capacity and in the exercise of such governmental functions it does not become liable in actions for tort by reason of the malfeasance, misfeasance or negligence of its officers or agents in the absence of a statute creating such liability. This court has long been committed to that view of the law. Morrissey vs. State, 2 C. C. R. 454; Minear vs. State Board of Agriculture, 259 Ill. 549; Chumbler vs. State, 6 C. C. R. 138; Bucholz, Admrx. vs. State, 7 C. C. R. 241, 243; Derby vs. State, 7 C. C. R. 145; Braun vs. State, 6 C. C. R. 104.

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


author: Mb. Chibe Justice Hollerich

text:
    (No. 2681
    Alpha Distributors, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1936.

    Eckert & Peterson, for claimant.
    Otto Kerner, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Chibe Justice Hollerich

delivered the opinion of the court:

On December 2nd, 1933 claimant, Alpha Distributors, Inc., a Delaware corporation, pursuant to a previous agreement with Alpha Shares, Inc., a Maryland corporation, submitted to the Secretary of State of this State its application for the qualification of the participating shares of said Alpha Shares, Inc., as Class D securities under the provisions of the Illinois Securities Law. With such application the claimant presented the “statements and documents” required by Section 9 of the Securities Law and its check for $300.00 to cover the fees required by Section 26 of such law. The check was sent through for clearing and the proceeds deposited in the State Treasury.

One of the provisions of the articles of incorporation of Alpha Shares, Inc., provided in effect that the participating stock of such corporation should not have any voting rights.

On December 12th, 1933 the Honorable Otto Kerner, Attorney General, advised the Secretary of State that he should not accept for qualification statements which purport to qualify stock of a foreign corporation which denies to stockholders the privilege of voting for directors. (Opinions of Attorney General, 1933, p. 746.)

A copy of such opinion was forwarded to the attorneys for claimant, and on December 26th, 1933 the Secretary of State advised such attorneys that the aforementioned opinion made it impossible for the Securities Department to pass upon the matter, and the original application was therefore returned and the files closed.

Subsequently the general corporate scheme was changed, and on January 21st, 1934, claimant submitted the application of Alpha Shares, Inc., to qualify such participating stock as a semi-fixed type of investment trust under Section 7-a of the Securities Law, and accompanied such application with the required exhibits. The fee fixed by the statute for such application was $100.00, and the application having been filed, the Secretary of State permitted $100.00 of the $300.00 fee previously paid, to be credited to the filing fee of the last application.

No further action relative to the remaining $200.00 of the $300.00 fee originally paid was taken until July 17th, 1935, on which date the claimant filed its claim herein for the recovery of such sum of $200.00.

Section 26 of the Illinois Securities Law, (Smith-Hurd’s Revised Statutes, 1933, chap. 121%) provides as follows:

"The following fees shall be paid to the Secretary of State at the time of submitting any statement for the qualification of securities' in Class ‘C’ or ‘D’ and amendments thereto * * *:
“(1) For Class ‘C’ or Class ‘D’ statement a fee of one-twentieth of one per cent of the amount of securities to be offered for sale in this State, but in no case shall the fee be less than $25.00 or more than $300.00.
* * * * * * *
“All such fees shall be paid into the State Treasury even though such statements or inventories and appraisements are not filed by the Secretary of State.”

Counsel for claimant and for respondent agree that the fee required by the statute, is for the purpose of compensating the Secretary of State for the examination of the “statements and documents ’ ’ which are required to be filed pursuant to the provisions of Section 9 of the Securities Law, but counsel for claimant contends that the Secretary of State did not make such examination, but returned the application without examination on account of the aforementioned opinion of the Attorney General, and base their contention on the following statement in the letter of the Secretary of State returning the application, to wit:

“This opinion, makes it impossible for the Securities Department to pass upon the above matter, and the Department is returning to you the original application and exhibits submitted by your office and is marking the files closed.”

However, there is nothing in such letter to indicate that the Secretary of State did not examine the documents submitted ; in fact, he necessarily had to examine them, or some of them, before he could determine that, the shares which claimant sought to qualify did not have voting rights. The documents in question were in the hands of the Secretary of State for ten days before the opinion of the Attorney General was written, and there is nothing in the record to indicate that an examination of such documents was not made.

The Secretary of State in his letter above quoted said: “This opinion makes it impossible for the Securities Department to pass upon the above matter”; that is, the matter of the qualification of the shares as Class D securities. Although the Securities Department was barred from passing on the question of the qualification of the shares, as previously stated, it necessarily had to examine the documents submitted, or some of them, before it could determine that the shares in question denied to the holders thereof the right to vote for directors.

Under the provisions of Section 26 of the Securities Law, the fee is required to be paid “at the time of submitting” and not at the time of filing. Said section also provides that “all such fees shall be paid into the State Treasury even though such statements or inventories and appraisements are not filed by the Secretary of State.”

No provision has been made by the Legislature for the return of any such fees so paid into the State Treasury, and on the record before us, we see no legal justification for an award. Award must therefore be denied. Award denied. Case dismissed.


author: Mr. Chief Justice Hollerich

text:
    (No. 2795
    Benzoline Motor Fuel Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1936.

    Kirkland, Fleming, Green & Martin, for claimants.
    Otto Kerner, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

From the stipulation of facts filed in this cause it appears :

1. That pursuant to the" provisions of the Motor JTuel Tax Act of 1927, the claimant, as a distributor of motor fuels, collected from certain of its customers, a tax of two cents per gallon for the motor fuel sold to them during the month of January, 1928; that the name and address of each person from whom the tax was collected, the number of gallons sold to, and the amount collected from each such person, is as follows, to wit:

Name Address Gallons Tax Collected
Beloit Dairy Co....... .218 W. Chestnut St.... 3,379 $ 67.58
N. L. Litchfield....... .1419 N. Wells St....... 6,706 134.12
Pellar Pie Co......... .3659 W. Harrison St... 8,295 165.90
Parmelee Co......... .730 Quincy St......... 26,951 539.02
Deppe Baking Co..... .1015 Willow St........ 2,478 49.56
General Motors Truck
Co................. .1700 Pershing Rd...... 1,559 31.18
Edmonson Bock Co... .2855 N. Halsted St..... 1,141 22.82
Johanna M. Gray..... .6759 Bennett Ave...... 135 2.70
Benjamin Heller..... .3925 Calumet Ave..... 100 2.00
J. Hodgkinson....... .4926 Kimbark Ave..... 315 6.30
J. L. Llewellyn....... .4932 Kimbark Ave..... 180 3.60
E. D. Weary......... .5620 Blackstone Ave... 175 3.50
Chas. Weinfeld..... .6746 Kimbark Ave..... 250 5.00
Sheridan Laundry_____ . 5035 N. Kedzie Ave.... 750 15.00
Blue Seal Food Prod-
ucts ............... .6415 Wentworth Ave... 280 5.60
T. C. Drake.......... .51 E. Chicago Ave...... 120 2.40
Contractors Service Co.900 W. Division St..... 1,141 22.82
Hertz Drivurself..... .5801 Dickens Ave...... 25,867 517.34
Chicago Motor Coach. . 4711 Ravenswood Ave. . 273,695 5,473.90
Yellow Cab Co........ .57 E. 21st St........... 852,643 17,052.86
Wm. Cooper &
Nephews .......... .1909 Clifton Ave....... 5,827 116.54
1,211,987 $24,239.74

2. That the amount of the tax so collected, to Wlty $24,239.74, together with the sum of $29.16 covering the tax on-fuel used by claimant’s own filling station, making a total of $24,268.90, was remitted under protest by claimant to the Department of Finance of the respondent.

3. That such money was received by A. 0. Bollinger, as Director of the Department of Finance of the respondent, subject to the provisions of Section 2a of “An Act in Relation to the Payment of Public Money of the State into the State Treasury.”

4. That within thirty days after making such payment to the Director of the Department of Finance as aforesaid, claimant filed its bill in the Circuit Court of Sangamon County, in accordance with the provisions of the aforementioned Act of the G-eneralj Assembly, to restrain said Bollinger as Director of Finance from depositing such money with the State Treasurer.

5. That a temporary injunction was duly issued in accordance with the prayer of such bill, and said Director of Finance was restrained from disposing of said sum, or any part thereof, and from paying the same, or any part thereof, into the State Treasury; and was further required to hold the same pending the further order of said court.

6. That upon the hearing in said cause, in said Circuit Court, a decree was entered dismissing the bill for want of equity; that claimant perfected an appeal from such order to the Supreme Court of Illinois; that the aforementioned injunctional order remained in force pending the final disposition of the case upon such appeal.

7. That the Supreme Court of Illinois reversed the decree of said Circuit Court of Sangamon County and remanded the cause to such court with directions to ascertain the character of the fund litigated, and in whose custody it then reposed, to determine the extent of the liability therefor of the Director of Finance, and his successors in office, and to make such other findings and orders in relation thereto as the circumstances might require and to the court should seem proper, including a final decree ordering repayment to the claimant of the sum to which it was entitled.

8. That at the time of the payment of said tax by the claimant to the Department of Finance as aforesaid, the Department of Finance maintained two banking accounts in which it deposited motor fuel tax receipts before the transmittal thereof to the State Treasurer; that one of such accounts was in the First Trust and Savings Bank of Kankakee (hereinafter referred to as “First Trust”) and the other was in the Ridgely-Farmers State Bank of Springfield, Illinois (hereinafter referred to as “Ridgely Bank.”)

9. That on February 24th, 1928 said Director of Finance deposited in said First Trust, the aforementioned sum of $24,268.90 so paid to him by claimant as aforesaid, together with the further sum of $144,544.81, being the amount of fuel tax paid by six other distributors; that the amount of the fuel tax so paid by the claimant to the Director of Finance as aforesaid, remained on deposit in said First Trust until July 5th, 1932.

10. That certain other distributors whose motor fuel tax was deposited in said First Trust as aforesaid also obtained injunctions restraining the deposit into the State Treasury of the tax so paid by them.

11. That at the time of the deposit in the First Trust, of the amount of the tax paid by the claimant as hereinbefore set forth, the Director of Finance had on deposit in the Bidgely Bank the sum of $454,341.03, being motor fuel tax collections received from various distributors, and held by him, pursuant to in junctional orders similar to the order procured by the claimant; that said balance remained intact in said Bidgely Bank until September 17th, 1930.

12. That in January, 1929 said A. C. Bollinger was succeeded as Director of Finance by Garrett DeF. Kinney who was thereupon substituted in place and stead of said Bollinger on said bank accounts.

13. That between July 23d, 1930 and July 9th, 1932, all of the aforementioned injunction proceedings except the suit of this claimant, were either dismissed or determined in favor of the respondent; that as said several injunction proceedings were dismissed or determined in favor of the respondent, the several amounts of money involved therein, were withdrawn and paid into the State Treasury; that in making such payments into the State Treasury as aforesaid, the said Garrett DeF. Kinney, then Director of Finance, withdrew funds from( said First Trust and from said Bidgely Bank indiscriminately, instead of withdrawing from said First Trust the funds which had been deposited therein, and which were thereafter released pursuant to the order of court; and withdrawing from said Bidgely Bank the funds which had been deposited therein, and were thereafter released pursuant to the order of court; that as a result of such action on the part of the Director of Finance, all of the money which had been deposited in said First Trust was withdrawn by said Director of Finance and deposited in the State Treasury; and the amount of the fuel tax paid by the claimant herein, to wit, $24,268.90, remained on deposit in the Bidgely Bank.

14. That on December 29th, 1932 said Bidgely Bank was closed by the Auditor of Public Accounts of the State of Illinois; that said bank is now in process of liquidation, and William L. O’Connell, is the present receiver for said bank.

15. That on September 6th, 1933 respondent filed a claim for preference in payment of said deposit of $24,268.90; that thereafter an order was entered in the Circuit Court of Sangamon County allowing said claim as a preferred claim in the amount of $24,268.90, and ordering said receiver to pay the same in due course of administration.

16. That on August 23d, 1935 the Circuit Court of Sangamon County entered an order in the aforementioned cause of this claimant against the respondent herein, finding that the funds of the claimant in the amount of $24,268.90 had been paid into the Treasury of the State of Illinois by said Garrett DeF. Kinney as Director of Finance, in violation of the injunctional order of said court, and further finding that claimant is entitled to repayment of said money from the respondent herein.

17. That thereafter, to wit, on December 14th, 1935, said receiver paid to the respondent the said sum of $24,268.90.

From the foregoing stipulation of facts, it appears -that the motor fuel tax so paid by the claimant as aforesaid was paid under protest; that within thirty days after the making of such payment, claimant filed a bill in chancery to restrain the payment of such money into the State Treasury, in accordance with the requirements of the statutes of this State; that a restraining order was issued on said bill; that the Director of Finance of the respondent violated the terms of such injunctional order by removing said funds from said First Trust; that if said funds had been permitted to remain in said First Trust until the final termination of the injunction proceedings commenced by the claimant in the Circuit Court of Sangamon County, as aforesaid, such funds would have been returned directly to the claimant pursuant to the order of the Circuit Court of Sangamon County; that as the result of the preference claimed and obtained by the respondent as a creditor of the Ridgely Bank, the respondent has obtained the sum of $24,268.90 to which it is not entitled, and which rightfully belongs to the claimant.

Claimant has not been guilty of any delay in connection with the matter, but on the contrary has been most prompt and energetic in asserting its rights; it has prosecuted its injunction proceedings with effect, and the only reason it has not received its money is because the Director of the Department of Finance of the respondent violated the injunctional order of the Circuit Court of Sangamon County, and withdrew the money on deposit in said First Trust without any authority therefor.

Under the facts and the law, claimant is clearly entitled to a refund of the motor fuel tax so paid by it as aforesaid.

The tax in question was collected by claimant from its aforementioned customers upon an agreement to the effect that claimant would pay such tax under protest to the Director of Finance, and would thereafter seek to recover the amount so paid; — and in the event of such recovery, would refund to said customers the amount so paid by them.

Award is therefore entered in favor of the following persons, firms and corporations, and in the following amounts, to wit:

Benzoline Motor Fuel Company, for the use of Beloit Dairy Co..$ 67.58
Benzoline Motor Fuel Company, for the use of N. L. Litchfield.. 134.12
Benzoline Motor Fuel Company, for the use of Pellar Pie Co..... 165.90
Benzoline Motor Fuel Company, for the use of Parmelee Co...... 539.02
Benzoline Motor Fuel Company, for the use of Deppe Baking Co. 49.56
Benzoline Motor Fuel Company, for the use of General Motors Truck Co..................................................... 31.18
Benzoline Motor Fuel Company, for the use of Edmonson Bock Co........................................................... 22.82
Benzoline Motor Fuel Company, for the use of Johanna M. Gray. 2.70
Benzoline Motor Fuel Company, for the use of Benjamin Heller. 2.00
Benzoline Motor Fuel Company, for the use of J. Hodgkinson... 6.30
Benzoline Motor Fuel Company, for the use of J. L. Llewellyn... 3.60
Benzoline Motor Fuel Company, for the use of E. D. Weary..... 3.50
Benzoline Motor Fuel Company, for the use of Chas. Weinfeld... 5.00
Benzoline Motor Fuel Company, for the use of Sheridan Laundry. 15.00
Benzoline Motor Fuel Company, for the use of Blue Seal Food Products ..................................................... 5.60
Benzoline Motor Fuel Company, for the use of T. C. Drake...... 2.40
Benzoline Motor Fuel Company, for the use of Contractors Service Co....................................................... 22.82
Benzoline Motor Fuel Company, for the use of Hertz Drivurself.. 517.34
Benzoline Motor Fuel Company, for the use of Chicago Motor Coach ....................................................... 5,473.90
Benzoline Motor Fuel Company, for the use of Yellow Cab Co____ 17,052.86
Benzoline Motor Fuel Company, for the use of Wm. Cooper & Nephews ..................................................... 116.54
Benzoline Motor Fuel Company ................................ 29.16
Total $24,268.90


author: Mr. Justice Yantis

text:
    (No. 2778
    The Cudahy Packing Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1936.

    Hoff & Hoff, for claimant.
    Otto Keener,, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

On or about May 4, 1935 claimant received an order for certain meats, as described in the Bill of Particulars, to be shipped to Hope Hall, one of the Public Welfare Institutions of the State of Illinois, located at 6036 Ravenswood Avenue, Chicago, in the amount of Twenty-Six and 18/100 ($26.18) Dollars. It appears from the record that when the Statement of Account was submitted on October 16, 1935, payment was not made because the appropriation out of which payment might have been made had lapsed. It further appears that the invoice for such merchandise was duly approved by George T. Scully, Supt. of the institution; that the merchandise in question was duly received and used at said institution and the statement of account was correct.

No opposition is offered to the payment of the claim and this claim seems to he within the rule that where the facts are undisputed that the State has received supplies lawfully ordered by it, and that payment was not made before the lapse of the appropriation out of which it could have been paid, and no question is raised as to the amount due, an award is proper.

• The claim is therefore allowed and an award entered in favor of claimant in the sum of Twenty-Six and 18/100 ($26.18) Dollars.


author:
Mr. Justice Yantis
      Chief Justice Hollerich

text:
    (No. 2252
    Julia Gyenes, Admx. of the Estate of Andrew Gyenes, Deceased, and Julia Gyenes, Individually, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1936.

    John W. Preihs and Carl Preihs, for claimants: John W. Fribley, of counsel.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

On September 18, 1932 Louis L. Emmerson, as Governor of the State of Illinois, in compliance with the request of the Sheriff of Christian County directed the mobilization of Company E, 130th Infantry of the Militia of Illinois, to go into Christian County to aid in preserving order. Under orders from Adjutant General Black, the Company, under command of Capt. Carl H. Meacham, went to Christian County, with instructions to report to the Sheriff of that County. The Company was in command of Capt. Carl H. Meacham. The latter reported to the Sheriff, no martial law was declared, but the Sheriff directed Capt. Meacham, as such commanding officer, to assist in maintaining order in said county and for that purpose to patrol any part of the county in such manner, as such commanding officer might deem proper.

Between 5:30 and 6:00 o’clock on the afternoon of October 13, 1932 Corporal Bussell M. Myers, and two other members of the Ill. National Guard were on active duty and were patrolling the streets in the Village of Tovey in said county when their car was signalled to stop by a Mr. and Mrs. Miller in front of the Miller home. Andrew Gyenes was standing in the front yard at the residence of a Mr. Fordor who lived next door to the Miller home. There was a fence across the front of the Fordor property between Gyenes and the street and he was standing some five or six feet inside the yard, the gate to which was closed. Mr. Miller had had a dispute with Gyenes several days previously. Miller informed the guardsmen of this dispute and that Gyenes had called him a “scab,” and he requested that the militiamen arrest Gyenes. Corporal Myers then walked over near the gate of the fence which surrounded the yard in which Gyenes was standing and ordered him to consider himself under arrest. The gate was closed and Gyenes was standing four or five feet from the fence. Gyenes refused to consider himself under arrest and informed Corporal Myers that the latter had no right to arrest him without a warrant and that he would not go with Corporal Myers, whereupon Myers said “I told him if he refused again I was going to shoot — that I would count three —that I did count three — and about the time of the third count Gyenes took a step forward and raised his arm toward me and I fired.” The bullet from Corporal Myers’ rifle entered the body of Andrew Gyenes and from that bullet wound the latter soon thereafter died.

Andrew Gyenes was an able-bodied man, about forty-five (45) years of age, by occupation a coal miner, and lived with and contributed his earnings to the support of his wife and children. He left surviving him, Julia Gyenes who files this claim as his surviving widow and as administratrix of his estate — Marie Gyenes, a daughter, aged nineteen (19) years — Elizabeth Gyenes, a daughter, aged seventeen (17) years — and Andrew Gyenes, a son, aged nine (9) years, all of whom, according to the stipulation herein filed, were dependent upon their father for support.

No martial law had been declared in Christian County prior to or at the time Corporal Myers shot and killed Andrew Gyenes. Corporal Myers had no warrant for the arrest of Gyenes and there was at the time of the shooting no complaint for a warrant filed with any court. It is further stipulated in the record that the deceased had violated no law in the presence of the Military Patrol or Corporal Myers and that the deceased was within his authority in demanding that no arrest be made without a warrant.

Claimant seeks an award of Ten Thousand ($10.000.00) Dollars as the surviving wife of Andrew Gyenes, because of his unlawful and unwarranted killing, and seeks the further sum of Ten Thousand ($10,000.00) Dollars as administratrix of the estate of Andrew Gyenes for the support, care and education of Elizabeth Gyenes and Andrew Gyenes, his surviving children.

The Attorney General has filed a motion to dismiss the case, claiming respondent is not liable under the Doctrine of Respondeat Superior for the negligence of its servants and agents. He further contends on behalf of respondent that no award should be allowed under the doctrine of ‘equity and good conscience’ or ‘social justice.’ In answer to this, claimants contend that time after time where no legal liability on the part of the State for damages exists that awards have been made as a matter of equity and good conscience. This court as now constituted has reached the conclusion that it has no authority under the provisions of the Court of Claims Act to allow any claim solely on what is known as the doctrine of ‘equity and good conscience.’ This view is fully set forth in the case of Crabtree vs. State, 7 C. C. R. 207 and in numerous other cases appearing in the subsequent reports of this court.

Claimants contend however, that -the facts in this case distinguish it from the other cases in which the doctrine of 1equity and good conscience’ have been invoked, for the reason that the legislature, pursuant to the provisions of Section 11 of Article 20 of the Military aAid Naval Code have deprived them of any right of action against Corporal Myers and that unless this court takes cognizance of the claim, Andrew Gyenes, the deceased, would have been deprived of his life, and claimants would be deprived of their property and right to support, without due process of law, contrary to the Constitution. This Section (Hurd’s Rev. Statute 1933, Ch. 129) provides in part as follows:

“Should any member of the National Guard — while in the discharge of his duty on active service in pursuance of orders from a superior authority, take life, or injure any person or persons or property in such discharge of his duty, the act or acts upon the part of such enlisted man — shall be deemed to be justifiable and lawful and he shall not be prosecuted therefor in any court or incur any civil liability by reason thereof.”

By the provisions of this Act the legislature has expressly exempted Corporal Myers from any liability to the claimants in this case. At the time he shot Andrew Gyenes, Corporal Myers was in fact merely acting as a Peace-Officer, engaged in aiding the Sheriff of Christian County to maintain order. Were it not for the fact that he was an enlisted member of the National Guard in the discharge of his duties on active service pursuant to orders from a superior authority, he and his bondsman would have been subject to civil suit for the unwarranted killing of deceased. Under existing statutes the Civil Courts are not open to claimants for such purpose.

One of the first objects of Government is to protect the life, liberty and property of its citizens to the end that a Constitutional Government may exist. The Constitution of Illinois is the organic law of this State, and its bill of rights should be accepted as an imperative voice when considering the relationship and dealings between the civilian citizenship and the military power of the State.

The Constitution of the State of Illinois in the bill of rights provides:

“Section 2, Article II. No person shall be deprived of life, liberty or property without due process of law.
“Section 6, Article II. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue without probable cause etc."
“Section 15. The military shall be in strict subordination to the civil power.”

The provisions above stated cannot be abrogated by statute nor legally violated by the militia or any court or citizen of the State. No fair minded citizen or student of our form of Government can rightly contend that it is in accordance with the spirit of these provisions to permit a member of the National Guard while engaged in the performance of his duties, not in a zone where martial law has been declared, but acting only as a Peace-Officer and as an aid to the civilian authority in maintaining order, to arrogantly, wantonly and without process and without any charge of crime having been legally preferred against a citizen, and where no violation of law has been committed in the presence of such militiamen, shoot and kill such citizen on private property while such citizen is in the peace of the people.

In the case of Johnson vs. Jones, et. al. 44 Ill. 142 the court expresses itself in this regard in the following language:

“The cardinal object of our Constitution, as it is the end of ail good government, is to secure the people in their right to life, liberty and property. The more certainly to attain this end, the framers of our Constitution not only proclaimed certain great principles in the bill of rights, but they distributed governmental power into three distinct departments, each of which, while acting in its proper sphere, was designed to be independent of the others. To the legislative department it belongs to declare the causes for which the liberty of a citizen may be taken from him, to the judicial department to determine the existence of such causes in any given case, and to the executive to enforce the sentence of the court. If a citizen can be arrested, except upon a charge of violated law, and for the purpose of taking him before some judicial tribunal for investigation, then it is plain that the executive department has usurped the functions of the other two, and the whole theory of our government, so far as it relates to the protection of private rights, is overthrown.”

Corporal Myers had no right or authority to make the attempted arrest or commit the wilful and deliberate act of shooting Andrew Gyenes. Martial law had not been declared ; no proclamation suspending habeas corpus in the State of Illinois or Christian County had been issued; the civil law was still in full force and effect and it was as improper to make the attempted arrest without a warrant, under all the facts appearing in this record as it would have been to have visited upon Andrew Gyenes a trial by court martial instead of according to him a Civil Court hearing. As stated in Johnson vs. Jones, supra, “Military law, as distinguished from martial law, consists of the rules prescribed for the government and discipline of troops, wMch applies only to persons in the Military or Naval service of the government; whereas martial law, when once established, applies alike to citizen and soldier.”

A military court martial has seen fit to visit no penalty upon Corporal Myers for the killing of Andrew Gyenes but regardless of whether he was or was not held responsible to the Military Court we do not believe that the State of Illinois can justify a' dismissal of this claim and in effect say to the world that although no martial law has been declared, the Militia of the State may wantonly shoot down and kill one of its citizens then in the peace of the people and that the State would disavow all responsibility therefor. By statute, as a measure of proper public policy, the State has closed the door of the Civil Courts to claimants herein. While the killing of Andrew Gyenes as disclosed by the record herein seems unprecedented, yet we must believe that it is such a cause as was included in the minds of the Legislators of Illinois when they enacted the law creating the Court of Claims, and provided that among other things it should have power “To hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State, as a Sovereign Commonwealth, should, in equity and good conscience, discharge and pay.” (Sec. 6, Par. 4, Court of Claims Act.)

For the State to deny such redress as it can offer to the widow and children of Andrew Gyenes for the latter’s death under the circumstances disclosed in this record would not be in keeping we believe with our constitutional precepts and the law. We believe an award to be legally justified.

At the time of his death Andrew Gyenes was survived by his widow and three children, one of whom was nine years of age and the others over sixteen year of age. He was forty-five years of age and a coal-miner by occupation.

An award of Four Thousand Five Hundred ($4,500.00) Dollars is justified under the record.

It is Thebefobe Obdebed that an award is hereby recommended in favor of Julia Gyenes as administratrix and as surviving widow of Andrew Gyenes, deceased, in the sum of Four Thousand Five Hundred ($4,500.00) Dollars.

Chief Justice Hollerich

dissenting:—

I cannot concur in the majority opinion.

Claimant contends that she is entitled to an award on the following grounds:

1) Equity and good conscience.

2) For the reason that she was deprived of her property without due process of law.

By the provisions of Section 11 of Article 20 of the Military and Naval Code of this State, Corporal Myers was relieved of all civil liability for the killing of Andrew Gyenes. In the absence of such enactment, the personal representative of said decedent would have been entitled to maintain an action against Corporal Myers under the “Injuries Act” of this State, for wrongfully causing the death of said decedent. Claimant takes the position that the Legislature in enacting Section 11 of Article 20 of the Military and Naval Code, deprived her and her children of a right of action which otherwise could have been maintained under the “Injuries Act”, and that therefore she has been deprived of her property without due process of law, in violation of Section 2 of Article 2 of the Constitution of this State.

The majority opinion recognizes that claimant has no right to an award on the grounds of equity and good conscience, but holds that she was deprived of her property without due process of law, in violation of the aforementioned constitutional provision.

The constitutionality of the provisions of Section 11 of Article 20 of the Military and Naval Code has not been raised in this case, and that question is not now before the court.

The sole question for determination is whether the claimant has been deprived of her property without due process of law, within the meaning of those words as used in the Constitution. Does the deprivation of the right of action which the personal representative of said decedent otherwise might have maintained, constitute the taking of property, within the meaning of the constitutional provision? In other words, does the right of action which is given under the provisions of the “Injuries Act” constitute “property” within the meaning of that word as used in the Constitution?

At common law, no right of action existed for the recovery of damages for negligent injury resulting in the death of the person injured. Dougherty vs. American-McKenna, Co., 255 Ill. 369; Mississippi River Power Co. vs. Ind. Com., 289 Ill. 353; Sims vs. Moline, 222 Ill. App. 540.

In the case of Keeran vs. Peoria, Bloomington and Champaign Traction Co., 277 Ill. 413, our Supreme Court, in passing upon the constitutionality of Sections 6 and 29 of the Workmen’s Compensation Act of this State, used the following language:

“No right to compensation for an injury resulting in death existed at common law. Such right was given by statute, and being wholly statutory, is subject to legislative control. It may be given upon such terms and to such extent as the Legislature sees fit, and may be taken away or limited, in its discretion.”

In the case of Cones vs. Fisher, 286 Ill. 606, the court, in considering a similar question, after referring to the Keeran case and other cases, used the following language:

“Neither an .employee, his personal representative nor next of kin has any vested right to recover damages for personal injuries to the employee that the Legislature could not at any time do away with by a public enactment.”

As previously stated, no right of action existed at common law for the recovery of damages for negligent injury resulting in the death of the person injured. The right to recover damages in such case depends wholly upon the provisions of the “Injuries Act” of this State. The Legislature having created the right, has equal authority to abolish the same, as no one has a vested right therein. Consequently, if such right of action is abolished, there is no deprivation of property within the meaning of such words as used in the Constitution. The law in this regard is set forth in 6 R. C. L. p. 309, sec. 296, as follows:

“There can, in the nature of things, be no vested right in an existing law which precludes its change or repeal, nor vested right in the omission to legislate on a particular subject.”

In considering a similar question our Supreme Court, in the case of Arnold & Murdock Co. vs. Ind. Com., 314 Ill. 251, said:

“No one has a vested right in a public law, but the Legislature may repeal or amend all legislative acts not in the nature of contracts or private grants.”

From a consideration of the foregoing authorities, it appears to me that there was, in this case, no deprivation of property witMn the meaning of such words as used in the Constitution.

Furthermore, the question of the liability of the State for damages resulting from negligent acts or conduct on the part of enlisted men or officers in the military service of this State, has been before this court in numerous cases. Claimant has cited two of such cases in which awards were allowed, to wit: Hanson, et al. vs. State, 6 C. C. R. 548, and Wood vs. State, 7 C. C. R. 161. In each of such cases, however, it was specifically stated that there was no legal liability on the part of the State, but an award was made on the grounds of equity and good conscience. As stated in the majority opinion, this court as now constituted, has repeatedly held that it has no authority to allow an award on the grounds of equity and good conscience unless there is a legal liability on the part of the State to pay such award.

In each of the following cases an award was sought on the ground that the State was liable for the negligent acts or conduct on the part of enlisted men or officers in thé military service, and in each case award was denied on the ground that there is no liability on the part of the State in such cases. Viola Ogan vs. State, 4 C. C. R. 346; Kershaw vs. State, 6 C. C. R. 387; Peterson vs. State, 6 C. C. R. 578; Winnebago County Forest Preserve District vs. State, 7 C. C. R. 95; and Peterson vs. State, 8 C. C. R. 9.

There being no legal liability on the part of the State in this case, I feel that we have no jurisdiction to allow an award.


text:
    (No. 2567
    Ethel Hackl, Widow and Joseph Hackl, a Son, Beneficiaries of Edward H. Hackl, Deceased and Joseph Hackl, by Ethel Hackl, His Next Friend, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1936.

    Sam Gilbert, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

The petition in this case alleges that on the 30th day of August, 1934, Edward H. Hackl received an injury by reason of an accident arising out of and in the course of his employment by the State of Illinois, which resulted in his death on the 12th day of October, 1934. On the date aforesaid and prior thereto, claimant’s intestate was employed by the Illinois Emergency Belief Commission for the Department of Public Works and Buildings in the Division of Highways of the State of Illinois, and was working on State Boute 4 about 3 miles north of the village of Chatham in Sangamon County.

He was a common laborer and at the time he received the injuries he was wheeling a wheel-barrow loaded with dirt. His foot slipped on the somewhat wet ground and he fell forward, striking the upper abdomen upon the wheel-barrow. He immediately complained of pain and told one of his fellow employees) who advised him to quit wheeling and take up a rake and putter around until he felt better. He notified his foreman on the date of the injury, who notified him as to where to go for medical treatment. The accident had resulted in a ventral hernia. Doctor Don Deal, a physician and surgeon in Springfield, operated upon Hackl for the hernia on the 8th or 9th day of October, 1934 and Hackl died as a result of embolism on October 12, 1934. Hackl was receiving $4.00 a day and working 3 days per week. He left surviving a widow and one child, Joseph Hackl, who was 13 years of age, and claim is made under the Compensation Act for the sum of $4,450.00.

From an examination of the testimony, it appears that claimant’s intestate received an injury that arose out of and in the course of the employment, and that proper notice was given. Claim was filed in this case on January 7, 1935. The question to be determined is whether or not the hernia was an old one or a new one, and the amount of compensation.

On September 1, 1934, Edward Hackl called at the office of H. B. Jay, Superintendent of Day Labor, Centennial Building, Springfield, and talked with Mr. Emery of that office, and reported that on August 30, 1934 (his work for the Illinois Emergency Belief Commission consisted of raking, shoveling and using a wheelbarrow) while using a wheelbarrow, he was injured, and he reported to Doctor Don Deal on August 31, 1934, at which time Doctor Deal informed him an operation was necessary. He wanted the State to pay for this operation and he was directed to take the matter up with Major White, Superintendent of Work Belief for Sangamon County. Hackl was reported to the Medical Belief by his visitor on September 24, 1934. Hackl visited the office of the Medical Belief on that last mentioned date, and stated he had suffered a rupture while on relief work; that he had had a similar injury in 1923 while working in a mine at Divemon, Illinois, and was operated on in 1923. Hackl was told to go home and rest as much as possible and stay off of his feet, until he could get in touch with Doctor Deal. Doctor Deal gives practically the same history of the hernia case in 1923 as Hackl did and stated this was a recurrence of the old hernia and a new one; in other words, an operation was necessary according to Doctor Deal and should be done in the near future.

Under date of August 31, 1934, a report of the accident was made by Harold Bartlett, the foreman, to the Department of Public Works and Buildings. The Illinois Emergency Belief paid Doctor Deal $50.00 for the operation and the St. John’s Hospital bill amounting to $32.00.

At the time of his death, Hackl was 51 years old. He was taken to St. John’s Hospital on Monday, October 8th, about 3 o’clock in the afternoon. He was operated on and died about 8:15 in the evening on Friday, October 12th, at St. John’s Hospital.

Claim for compensation was made on the 20th day of November, 1934. That claim was filed with the Industrial Commission of Illinois, and thereafter a claim was filed with the Clerk of this court on the 7th day of January, 1935.

Hackl had been assigned to work on a project for the State of Ulinois on S. B. I. Boute 4, and was doing common labor. At the time of his injury he was pushing a wheelbarrow on wet ground when his foot slipped, causing him to strike the wheelbarrow and receive a ventral hernia.

The record does not disclose when he commenced work, but discloses that the respondent had proper notice; that the accident arose out of and in the course of the employment, and the work he was doing was within the terms and provisions of the Compensation Act; that he left a widow, Ethel Hackl, and a son, Joseph Hackl, who was 13 years at the time of his father’s death, having been born on August 30, 1921.

It appears that the deceased underwent an operation in 1922 for a ventral hernia; again in 1928 he had a recurrence and he was operated on in 1930 for the same thing, and it would seem that he was peculiarly subject to this ailment. He had two hernias in 1934; a recurrence of the old one and a fresh one in the same location but another opening, all within an area of two, three or four inches. There is no contention that his death was not the result of an operation for a hernia. The * respondent contends that because of other hernias, that the one that caused his death was a pre-existing one at the time of the accident. This is not sustained by the evidence.

There were definite objective symptoms-pain accompanied the hernia. A notice was properly given and the employer had prompt notice and it was of very recent origin. There is proof that this particular hernia did not exist prior to the injury.

Under the statute, his widow is entitled to recover four times his average annual earnings, but not less than $2,500.00 or more than $4,000.00. The kind of work he was doing was not intended to be permanent, but only temporary. As a matter of fact, it was relief work, and we believe that the amount to be recovered in this case should be $2,500.00, and on account of the child being under sixteen years of age, to-wit: thirteen years at the time of the death of his father, that an award should be recommended in this case in the sum of $3,000.00. It is the understanding of this court that this sum will be paid out of the Hlinois Emergency Belief Commission funds, and it is accordingly recommended that payment be made by said Hlinois Emergency Belief Commission in the above amount in full settlement of this claim.


text:
    (No. 1999
    The Independent Eastern Torpedo Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1936.

    Claimant, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant is an Ohio corporation, and filed its claim herein on October 12th, 1932 seeking a refund of $50.00, being the amount of the franchise tax paid by it for the year commencing July 1st, 1932.

The rights of the parties hereto are governed by the provisions of “An Act in Relation to Corporations for Pecuniary Profit,” approved June 28th, 1919, as amended, commonly known' as The General Corporation Act; being the law in force at the time of the transaction involved herein. Under the terms of such law all foreign corporations doing business in this State were required to make a report in writing to the Secretary of State, between the 1st day of February and the 1st day of March of each year, and pay a franchise tax which was assessed upon the basis of such report. The franchise tax was due and payable the following July 1st, but did not become, delinquent until July 31st, and was for the year commencing on the first day of July in which it was due, and ending on the 30th day of June next thereafter.

Under date of May 7th, 1932 the Secretary of State forwarded a statement to claimant advising that under the provisions of the General Corporation Act of this State claimant owed the State a franchise tax of $50.00, and that the same was due and payable on the 1st day of July of that year.

Under date of June 30th, 1932 claimant forwarded to the Secretary of State its check for $50.00 in accordance with the aforementioned statement of May 7th, and asked if it was possible to get a refund of such item, for the reason that it had previously ceased doing business in this State. The Secretary of State made reply under date of July 8th, 1932 that the only way a foreign corporation could be absolved from payment of the tax was by filing a certificate of withdrawal, and further advising that if such certificate were filed in his office before July 31st, he would give the matter of making a refund of $50.00 further consideration.

Under date of July 11th, 1932 claimant returned to the Secretary of State the formal certificate of withdrawal, and. asked for favorable consideration of its previous request for a refund. Having heard nothing from the Secretary of State regarding the matter, claimant again wrote him on September 8th regarding the refund, and on September 14th, 1932 the Secretary of State advised that inasmuch as more than thirty days had elapsed since the payment of the franchise tax, he was unable to make a refund, and that claimant’s only recourse, if any, was to file a claim with this court.

The franchise tax in question was for the privilege of doing business in this State for the year commencing July 1st, 1932, and was due July 1st, 1932, but would not be delinquent until July 31st, 1932. Claimant had ceased doing business in the State prior to July 1st, 1932, but formal certificate of withdrawal was not filed until on or about July 12th, 1932. In his report on the matter the then Secretary of State stated:

“It has been the policy of this department to file certificates of dissolution of domestic corporations, and certificates of withdrawal of foreign corporations up to the time such corporations become delinquent without the payment of the franchise tax for the ensuing year, since such corporations are not deemed to be delinquent until after the last day of July.
“If the claimant in this case had not paid the franchise tax, the certificate of withdrawal would have béen accepted by this department any time up to the last day of July of the year in which it was paid, at which time such corporation would have been deemed to be delinquent and no certificate of withdrawal would have been accepted until all the required fees were paid.”

If, under the policy of the then Secretary of State, claimant was entitled to a refund, the same should have been made by such Secretary prior to July 31st, 1932.

However, we cannot be governed by the policy of the then Secretary of State. Our inquiry must be as to whether under the law claimant is entitled to a refund.

Section 90 of the General Corporation Act in force at the time in question, provided that “Any foreign corporation that has paid all fees due and has otherwise complied with the laws of Illinois, may withdraw from the State by surrendering its license and filing with the Secretary of State an affidavit of the President or Vice President and Secretary or an assistant Secretary of the corporation to the effect that no amount of the capital stock of the corporation is represented by property located and business transacted in this State,” etc. etc. The right of the claimant to withdraw from the State is contingent upon the previous payment of “all fees due” The franchise tax assessed against the claimant was due July 1st, and consequently under the statute it was necessary that such tax be paid before the claimant was entitled to withdraw. Claimant, having delayed the filing of its affidavit for withdrawal until after the tax was due, is not entitled to refund of the tax paid.

Furthermore, the franchise tax in question was paid by the claimant voluntarily, with a full knowledge of the facts, and it is the well settled law of this State that a tax voluntarily paid cannot be recovered back in the absence of a statute providing for such recovery.

Cooley in his work on Taxation (2d ed. p. 809), states the rule as follows:

“That a tax voluntarily paid cannot be recovered back, the authorities are generally agreed. And it is immaterial, in such a ease, that the tax has been illegally laid, or even that the law under which it was laid was unconstitutional. The principle is an ancient. one in the common law, and is of general application. Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to 'make, he cannot afterwards assign his ignorance of the law as the reason why the State should furnish him with legal remedies to recover it hack.”

In Dillon’s Municipal Corporations, 3d edition, section 944, the rule is set forth as follows:

“Money voluntarily paid to a corporation under a claim of right, without fraud or imposition, for an illegal tax, license or fine, cannot, there being no coercion, no ignorance or mistake of facts, but only ignoranee or mistake of the law, be recovered back from the corporation, either at law or in equity, even though such tax, license, fee or fine could not have been legally demanded and enforced.” Section 946 of the same work reads as follows: “Where there is no mistake or fraud, a voluntary payment cannot be recovered on the mere ground that the one party was under no legal obligation to pay and the other had no right to receive. Where the party would recover back taxes which he is under no legal obligation to pay, the payment must be compulsory.”

The foregoing statements of the law have been approved by onr Supreme Court in many cases. Yates vs. Royal Insurance Co., 200 Ill. 202; Board of Education vs. Toennigs, 297 Ill. 469; School of Domestic Arts vs. Harding, 331 Ill. 330; Richardson Lubricating Co. vs. Kinney, 337 Ill. 122.

Under the well settled principles of law applicable to this case, we have no authority to allow a refund. Award is therefore denied and the case dismissed.


author: Mr. Justice Tantis

text:
    (No. 2694
    Frances T. Tucker, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1936.

    William H. Kailes, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant herein seeks an award of Four Thousand Eight Hundred ($4,800.00) Dollars under the terms of the Workmen’s Compensation Act. From a stipulation of facts filed herein it appears that Ralph F. Tucker was employed as a Maintenance Patrolman in the Highway Department of the State of Illinois from February, 1933 to February 25, 1935; that on the latter date while in the discharge of his duties he was driving a truck a short distance North of Des Plaines, Illinois. It was snowing and sleeting and visibility was very poor. While crossing the tracks of the Soo Line the truck was struck by a passenger train and Ralph F. Tucker was killed. He died intestate leaving surviving, Frances T. Tucker, his wife, the claimant herein and three minor children, to-wit: Ralph Gr. Tucker, Andrew H. Tucker and James E. Tucker all under sixteen (16) years of age at the time of the accident. His earnings or wages were One Thousand Two Hundred ($1,200.00) Dollars per year.

A suit is now pending in the name of claimant herein, as administratrix of the estate of Ralph F. Tucker vs. the Minneapolis, St. Paul and Saulte Ste. Marie Railway Company in the Superior Court of Cook County, Case No. 358 — 14490, seeking damages in the sum of Two Thousand Nine Hundred Ninety Nine ($2,999.00) Dollars, the case being limited to that amount in order to avoid Federal jurisdictional questions.

The death of claimant’s husband was due to the accident and arose out of and in the course of his employment.

The amount of compensation is fixed by Section 7 (a) of the Workmen’s Compensation Act, under which it is provided that the payment shall be equal to four times the average annual earnings of the employee but not more in*any event than Four Thousand ($4,000.00) Dollars; Under Sec. 7-h-3 said provision is subject to the further increase to a maximum of Five Thousand Five Hundred ($5,500.00) Dollars in case of three or more children under the age of sixteen (16) years at the time of the death of said employee. As construed by the Supreme Court in the case of Moweaqua Coal Corporation vs. Industrial Commission, 360 111. 194 such increased maximum shall not however in any event exceed four times the annual earnings of the deceased employee. The annual earnings of claimant’s husband were One Thousand Two Hundred ($1,200.00) Dollars and the maximum award herein is therefore limited to a total of Four Thousand Eight Hundred ($4,800.00) Dollars.

Claimant has filed a petition for a lump sum settlement but it does not appear to the court to the best interests of the parties herein that such compensation be so paid and the court is of the opinion that payment should be made in accordance with the provisions of the Compensation Act, in monthly payments.

As hereinabove stated a suit is now pending against the Railroad Company in connection with the death claim, and the .State, as the employer, would be entitled to subrogation in the event of a recovery therein. In view of the amounts involved however and the facts in evidence, the court finds that it is to the best interests of the parties to make the award payable at the present time and an award is hereby entered in favor of claimant in the sum of Four Thousand Eight Hundred ($4,800.00) Dollars, payable as hereinafter provided:

The weekly wages of deceased would be Twenty Three and 08/100 ($23.08) Dollars. By reason of three children under the age of sixteen (16) years, weekly payments of Thirteen ($13.00) Dollars from February 25, 1935 to March 10, 1936, or fifty-four (54) weeks, or Seven Hundred Two ($702.00) Dollars shall be made immediately due and payable. The further sum of Four Thousand Ninety Eight ($4,098.00) Dollars shall be payable at the rate of Thirteen ($13.00) Dollars per week payable in monthly installments commencing April 10, 1936 subject to the further provision of the Illinois Workmen’s Compensation Act.

This ‘award being subject to the provisions of an Act entitled, “An Act Making cm Appropriation to pay Compensation claims of State Employees and Providing for the Method of Payment ThereofApproved July 2, 1935 (Session Laws of 1935, Page 49), and being, by the terms of such Act, subject to the approval of the Governor is hereby, if and when such approval is given made payable from the Road Fund in the manner provided for in such Act.


author: Me. Justice Yantis

text:
    (No. 2643
    Arthur Hart, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 28, 1936.

    Bryan H. Tivnen, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

During the years 1933 and 1934 claimant herein, Arthur Hart, was the owner of three motor trucks specially designed and constructed for oiling roads and used exclusively for such purposes in Coles County, Illinois. In the year 1933 claimant applied to the Secretary of State for the registration of said oil trucks and paid for such registration a license fee of Seventy Five ($75.00) Dollars for Federal Truck, Engine No. 1400, for which License No. E 5650 was issued — for Federal Oil Truck, Engine No. 2076 a registration feé of Thirty Five ($35.00) Dollars, for which License No. D 11587 was issued, and for Indiana Truck, Engine No. 8065 a registration fee of Thirty Five ($35.00) Dollars, for which License No. D 115850 was issued; and for the year 1934 a registration fee of Seventy Five ($75.00) Dollars was paid for Federal Truck, Engine No. 1400, for which License No. A4466 F was issued. Claimant now seeks an award of Two Hundred Twenty ($220.00) Dollars as a refund for the reason that said three motor vehicles are exempt from registration under the provisions of Subdivision E of Section 9 of the Motor Vehicle Act of the State of Illinois, whereby oil trucks specially designed and owned and used exclusively for spreading oil on the public roads are exempt from the payment of such license fees. Claimant contends that said license fees were paid under a misapprehension of fact as to said road-oiling trucks being such vehicles as are included in the phraseology of said Section.

A stipulation of facts has been entered into. The Attorney General contends that the mistake was purely one of law. Claimant paid the registration fees in question under a mistaken belief that the particular trucks involved were subject to registration as ordinary trucks. The type of construction of the trucks and the use to which they were put were questions of fact. The law exempts certain types of vehicles from the payment of a license fee, and whether or not this exemption applied in any particular case depends entirely upon the question of fact as to whether the particular truck or vehicle is of the kind and character classified by the law as ‘'exempt.” Such question of facts had to be determined in the first instance by the owner of the truck or vehicle and upon the determination of that fact depends the question of whether or not a license fee is required.

The court is of the opinion that where a tax is paid under a mistake of fact, as evidenced in this case, an award is legally justified for a refund of such amount. (Fowler Mfg. Co. vs. State, 8 C. C. R. 160.)

An award is therefore allowed to claimant in the sum of Two Hundred Twenty ($220.00) Dollars.


text:
    (No. 2757
    George F. Harding and Martin H. Kennelly, Trustees, Etc., Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 28, 1936.

    L. M. Bowden, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Under their claim filed November 15, 1935 plaintiffs ask payment of One Hundred Forty Four and 94/100 ($144.94) Dollars for one car of crushed stone shipped to Arlington Heights, Illinois April 22, 1935 and one car of stone shipped to Des Plaines, Illinois on said date; both sold and shipped pursuant to bid, and purchase order from the State Highway Department. It appears from the record that claimants were duly appointed trustees for Consumers Company; that the debt in question was lawfully incurred; that the material was duly received and used by the Division of Highways of the State of Illinois. Due to various causes the invoices were not cleared for payment until after the appropriation covering said purchase order had been closed with the expiration of the fiscal year of respondent.

No contention is raised as to the validity of the claim. As stated in Rock Island Sand and Gravel Co. vs. State, 8 C. C. R. 165,

“Where it is conceded that claimant furnished supplies to a department of the State on a legal and proper order therefor, and it appears that the only reason, payment has not been made is because the bill therefor was not presented until the lapse of the appropriation out of which payment could have been made, an award will be entered for the amount due.”

An award is therefore allowed in favor of claimant in the sum of One Hundred Forty Four and 94/100 ($144.94) Dollars.


author: Mb. Justice Tantis

text:
    (No. 2692
    W. H. Maze Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 28, 1936.

    Claimant, pro se.
    Otto Eebneb, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Mb. Justice Tantis

delivered the opinion of the court:

Claimant seeks an award for Ninety Five ($95.00) Dollars because of a mistake in fact in the payment of franchise tax. It appears that on February 28, 1934 claimant reported to the Secretary of State showing its organization on October 10, 1912; that it had three hundred (300) shares of common stock of a par value of One Hundred ($100.00) Dollars, and then erroneously, for some reason unknown plaintiff inserted, the sum of One Hundred Twenty Five Thousand ($125,000.00) Dollars as stated capital. Thereupon the respondent through the Secretary of State’s Office assessed the claimant a franchise tax of One Hundred Ten ($110.00) Dollars, which claimant paid in full on June 29, 1934. The misstatement of the amount of capital stock at One Hundred Twenty Five Thousand ($125,000.00) Dollars instead of Thirty Thousand ($30,000.00) Dollars was discovered shortly after November 15, 1934, and thereafter plaintiff filed its claim for Ninety Five ($95.00) Dollars for the difference between the franchise tax that it should have paid on' a stated capital of Thirty Thousand ($30,000.00) Dollars and the amount actually paid by it on the erroneously stated capital of One Hundred Twenty Five Thousand ($125,000.00) Dollars.

Under the General Corporation Act of Illinois the franchise tax of the corporation is assessed on the information given in the annual report, and as claimant’s annual report for 1934 shows three hundred (300) shares of stock with a par value of One Hundred ($100.00) Dollars, a correct computation of the stated capital could only be Thirty Thousand ($30,000.00) Dollars, being the amount on which the franchise tax should have been' computed. The figures used to show the computation of the amount of such stated capital, in the sum of One Hundred Twenty Five Thousand ($125,000.00) Dollars, was a mistake of fact and not of law. No contrary contention is raised by the Attorney General in behalf of respondent, and in keeping with the decision heretofore reached in Andersen vs. State, 8 C. C. R. 157 and other cases cited,

“Where the facts are undisputed that money for which the claim is made was paid to the State as the result of a mutual mistake of fact, an award for the refund will be made.”

An award is therefore made in favor of claimant herein in the sum of Ninety Five ($95.00) Dollars.


text:
    (No. 2557
    V. J. McDevitt, Etc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 28, 1936.

    Inghbam & Inghbam, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Some time prior to November 1,1932 claimant contracted with the Department of Agriculture through the Division of Poultry Husbandry to furnish and deliver to that Department seventy-one (71) bronze plaques to be awarded as trophies in poultry exhibits conducted by said Department. These plaques were duly delivered' and on November 5, 1932 paid for by Voucher No. 666 of said Department and Division. Afterwards, on or about December 20, 1932 a further order for ten (10) additional plaques at an agreed price of Thirty Five ($35.00) Dollars was placed with claimant by said Department, and claimant thereafter performed and completed its contract and said additional plaques were duly delivered and used by said Department. The bill therefor has never been paid and the only reply thereto is one received from the Administrative Auditor stating, “As the plaques were ordered in 1932 they should have been paid out of the appropriation from the biennium which elapsed on July 1, 1933.”

Under Paragraph 92, Chap. 5, Agriculture and Horticulture, Illinois State Bar Statutes, 1935, the Department of Agriculture through the Board of Poultry Husbandry is authorized “To conduct poultry educational exhibits, etc.” An appropriation was duly made to said Department covering the period during which this claim was incurred “For State poultry shows, $3,000.00.”

The court is of the opinion that the item of expense involved in this claim was a legitimate incident of the power of the Poultry Division in the holding of its poultry exhibits. As the only reason for the non-payment of the claim appears to be that the appropriation out of which same could have been paid has lapsed, an award for the payment thereof is hereby made in favor of claimant in the sum of Thirty Five ($35.00) Dollars.


text:
    (No. 2792
    Myers Brothers, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 28, 1936.

    Barber & Barber, for claimant.
    Otto. Ejerner, Attorney General; John EAsserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Claimant herein alleges that on November 8,1934 respondent, through its Division of Purchases and Supplies of the Department of Finance, purchased through claimant certain merchandise consisting of six dozen coats at an agreed price of Eighty Eight and 20/100 ($88.20) Dollars per dozen, delivery to be made at the State Training School for Girls at Geneva, Illinois. In a report from Miss Florence Monahan, Managing Officer of said Institution, under date of February 6, 1936 she states “The coats were received at our Institution on or about November 20, 1934 and the amount of $529.20 covering this shipment is rightfully due Myers Brothers.” Due to the fact that a replacement of one coat was necessary, some confusion resulted in the due filing of the bill, and the appropriation from which it might have been paid lapsed before the bill was properly vouchered. The claim is apparently legal and just. No contention otherwise is raised by the respondent. A stated in Schreiber Lbr. Co. vs. State, 8 C. C. R. 381,

"Where the facts are undisputed that the State has received supplies legally ordered by it and payment therefor has not been made due to the lapse of the appropriation out of which it could have been paid, and no other objection to the bill appears, an award therefor will be allowed.”

An award is therefore made in favor of claimant for said claim in the sum of Five Hundred Twenty Nine and 20/100 ($529.20) Dollars.


text:
    (No. 2580
    Oscar Peterson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 28, 1936.

    Oscar Peteeson, pro se.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claimant herein, Oscar Peterson, was the owner in December, 1931 of a portable feed-grinding mill permanently erected on and attached to a one and one-half (1%) ton International Truck, Engine No. 291401. On the 12th day of that month he made application to the Secretary of State for a license for said truck and paid therefor a license fee of Six ($6.00) Dollars. On April 15, 1932 he made application for a license for said motor vehicle and paid the fee therefor in the sum of Twelve ($12.00) Dollars, and was thereafter issued a license for said year. In April, 1933 he again made application for license for said truck .for the latter year and paid as a fee the sum of Twelve ($12.00) Dollars. He now seeks a refund of Thirty ($30.00) Dollars, claiming that said motor vehicle was exempt from the payment of a registration fee under provisions of Section 9, Chapter 95a, Cahill’s Ill. Revised Statutes. Claimant contends that said license fees were paid under a misapprehension of facts as to said truck being such a vehicle as is included in the phraseology of said Section.

Two amendments of the exemptions of certain vehicles from registration as required by Section 9 of the Motor Vehicle Act were made by the Legislature, applicable to the truck in question (1931-1933 biennium) as follows:

“(1) Provided, that none of the provisions of this Act prescribing or requiring registration shall he construed to include tractors, traction engines, threshing machines, clover hullers, ensilage cutters, corn shredders, corn shelters, hay presses, portable saw mills or other similar vehicles or trailers or semi-trailers used in connection therewith which are used primarily in the agricultural pursuits of the owner thereof or in connection with the agricultural pursuits of others, or used by residents of this State in any kind of road work or vehicles used exclusively for moving well-drilling outfits, but this exception in the proviso shall not exclude from registration trucks, trailers or semi-trailers engaged in transporting agricultural products. Effective July 1, 1931.
“(2) Provided, that nothing in this Act shall be construed to include tractors, traction engines or other similar vehicles used exclusively in agricultural pursuits, or used by residents of this State, in any kind of road work. Effective January 1, 1932.”

The truck on which the license fees in question were paid had attached to it in a permanent manner a feed-grinding mill which, we believe, brought the vehicle within the terms of the exemption above indicated, as said motor vehicle was, from its description, used primarily in the agricultural pursuits of the owner and in connection with the agricultural pursuits of others.

The Attorney General contends that the mistake was purely one of law. Claimant paid the registration fees in question under a mistaken belief that the particular truck involved was subject to registration as an ordinary truck. The type of construction of the truck and the use to which it was put were questions of fact. The law exempts certain types of vehicles from the payment of a license fee, and whether or not this exemption applied in any particular case depends entirely upon the question of fact as to whether the particular truck or vehicle is of the kind and character classified by the law as “exempt.” Such question of fact had to be determined in the first instance by the owner of the truck or vehicle and upon the determination of that fact depends the question of whether or not a license fee is required.

The court is of the opinion that where a tax is paid under a mistake of fact, as evidenced in this case, an award is legally justified for a refund of such amount. (Fowler Mfg. Co. vs. State, 8 C. C. R. 160.)

An award is therefore allowed to claimant in the sum of Thirty ($30.00) Dollars.


text:
    (No. 2861
    Public Service Company of Northern Illinois, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 28, 1936.

    K. J. Owens, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeeks an award for electric service rendered respondent through the Highway Department at the State Bond Issue No. 19 and Chicago and Northwestern Railroad grade separation crossing between the Village of Cary and the City of Crystal Lake in McHenry County, Illinois, for the sum of Thirty Seven and 47/100 ($37.47) Dollars.

According to the claim filed herein such service was commenced on or about the 8th day of September, A. D. 1932 and bills were thereafter submitted to the Department of Public Works and Buildings for such service as follows:

Service Dates Net Bill
12-18-33 to 3-16-34......................................... $14.25
1-17-35 to 4-17-35......................................... 12.45
4-17-35 to 7-18-35......................................... 10.77

No payment having been made, claimant made inquiry in November, 1935 and was informed by said Department through its duly authorized agent at Elgin, Illinois that the bills were not received in the Elgin Office and that as such bills were incurred prior to June 30, 1935, and the appropriation out of which same might have been paid had lapsed, no payment could be made except on an award by the Court of Claims. A report from C. H. Apple, District Engineer, under date of April 3, 1936 states ‘ ‘ The services were rendered and the bills are just.”

“Where it is conceded that the claimant legally rendered services or furnished supplies to the State and that the only reason for same not having been paid is because the appropriation out of which such payment could have been made has lapsed, an award for the payment of said account is proper.”
Schreiber Lbr. Co. vs. State, 8 C. C. R. 381.

This claim seems to come within the rule above cited and an award is therefore made in favor of claimant in satisfaction of said claim in the sum of Thirty Seven and 47/100 ($37.47) Dollars.


author: Hon. Chibe Justice Hollerich

text:
    (No. 2745
    Uhlemann Optical Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 28, 1936.

    Maurice S. Wbinzehbaum, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Hon. Chibe Justice Hollerich

delivered the opinion of the court:

On October 28th, 1935 the claimant filed its complaint herein, in which it asks for an award in the amount of $190.16 for merchandise which it claims to have sold and delivered to the respondent.

From the facts in the record and from the stipulation on file, it appears that the claimant furnished certain lenses and other merchandise of a like character, for certain inmates of the State Penitentiary at Joliet, upon the order and at the request of the proper authorities of such institution. It further appears that the merchandise in question was furnished on diverse dates between January 11th, 1931 and June 1st, 1933; that the fair and reasonable value of the merchandise so furnished was $70.16, and that the claimant has not been paid therefor.

The claim was not presented in time for payment out of the current appropriation, and thereafter there was further delay on the part of the respondent in verifying the same, on account of the fact that the predecessor to the present optometrist destroyed all records upon his release from duty.

There is nothing in the record to indicate that claimant has been guilty of any unreasonable delay, and no reason appears why an award should not be made.

Award is therefore entered in favor of the claimant for the sum of Seventy Dollars and Sixteen Cents, ($70.16.)