author: Mr. Justice Linscott

text:
    (No. 3344
    Midland Oil Company, an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 13, 1939.

    Maurice A. Frank and Robert H. Ellison, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The Midland Oil Company, an Illinois Corporation, filed its complaint with the clerk of this court on January 14, 1939, alleging that it was engaged in the business of distributing and retailing motor fuel in the City of Chicago and State of Illinois; that it is equipped to do that business and is associated in business with the Sterling Fuel Oil Corporation also licensed to do business in the State of Illinois, and that all tax payments set forth in the bill of particulars were made by the Sterling Fuel Oil Corporation on behalf of the claimant.

Claimant quotes Section 6 of the Motor Fuel Tax Law and avers that there is no prohibition in the Motor Fuel Tax Law against the extending of credit by a distributor and retailer, to the user of motor fuel, and that it is the custom and usage and always has been the custom and usage in the motor fuel trade, for the distributor and retailer of motor fuel to extend credit to the user thereof, and that in accordance with the custom and usage of the trade, the claimant did extend credit to many accounts to whom it sold motor fuel for use, and caused to be paid to the State of Illinois, through, the Sterling* Fuel Oil Corporation, three cents per gallon on the gallonage sold to the accounts to whom credit had been extended.

It is also averred that in the case of many of the accounts to whom credit was extended, claimant failed to collect the amount of the purchase price of the motor fuel sold to these accounts and failed to collect the motor fuel tax paid over by claimant in advance to the State of Illinois, and that many of these accounts have either gone out of business, become insolvent or bankrupt as appears from the bill of particulars attached to the complaint.

It is also averred that claimant made every possible reasonable effort and availed itself of every possible legal recourse in attempting to collect to the extent of, in one case, contesting* the sale of business in the Supreme Court of the State of Illinois. The bill of particulars sets forth the dates of the sales, the names of the delinquent customers and the amounts of the indebtedness.

It is also averred that the claimant was acting as the agent of the State of Illinois in collecting motor fuel tax, and exercised reasonable diligence in attempting to collect the motor fuel tax from the accounts listed in the bill of particulars, but despite the diligence used in attempting to collect such accounts, it was unable to do so. The accounts date back to June 15, 1933 and there were several during the year 1933.

The total amount claimed is the sum of $4,313.63.

Shortly after the above named claim was filed, the Attorney General filed a motion to dismiss and bar the claim, and as grounds for the motion says that the complaint does not set forth a claim which the State of Illinois, as a sovereign commonwealth, should discharge and pay for the reason that there is no provision of law which entitles a licensed motor fuel distributor and retailer to a refund of motor fuel tax remitted by it on sales of gasoline used in motor vehicles upon the public highways where such distributor and retailer made said sales on credit and was unable thereafter to collect from the vendees.

The Attorney General refers to Section 2 of the Motor Fuel Tax Act (1929) (Chap. 120, Ill. Rev. Stat. 1937), which imposes a tax of three cents per gallon on motor fuel used in motor vehicles operated upon the public highways. Beference is also made to Section 3 of the same Act which requires that each distributor of motor fuel be licensed by the Department of Finance and give bond. Section 4 is set forth in considerable detail, and is to the effect that

“Every person holding a valid unrevoked license to act as a distributor of motor fuel shall, between the first and twentieth days of each calendar month, make return, under oath, to the Department, showing an itemized statement of the number of invoiced gallons of motor fuel purchased, acquired or received, the amount produced, refined, compounded, manufactured, blended, sold, distributed, and/or used by him during the preceding calendar month, the amount lost or destroyed, and the amount on hand at the close of business for such month; and in the case of a sale to another licensed distributor, as hereinafter provided in Section 6, the amount of motor fuel so sold, the name, address and license number of such purchasing distributor."

The Attorney General also makes reference to Section 6, which provides in part, as follows:

“Each distributor who sells any motor fuel for any purpose shall (except as hereinafter provided) collect from the purchaser at the time of such sale, three cents per gallon on all motor fuel sold, and at the time of making .his return, the distributor shall pay to the Department, the amount so collected, (less the deduction hereinafter provided) and shall also pay to the Department three cents per gallon on all motor fuel used by him during the period covered by the return.”

Claimant’s counsel argue, in opposition to the position of the Attorney General,- that claimant’s complaint sets forth a claim which the State of Illinois should discharge and pay even though there is no specific provision of law upon which the claim for refund is based, and argue that said claim for refund is based upon Sub-division 4 of Section 6 of the Court of Claims Law, which provides that the Court of Claims shall 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.”

The equity and good conscience law is relied upon by claimant here.

This court had before it the same doctrine in the case of Crabtree vs. State of Illinois, 7 C. C. R., page 207. We there held that:

“The provisions of paragraph 4 of Section 6 of Court of Claims Act with reference to equity and good conscience merely defines the jurisdiction of the court and does not create a new liability against the State nor increase or enlarge any existing liability and limits jiirisdiction of court to claims under which State would be liable in law or equity, if it were suable, and where claimant fails to bring himself within the provisions of a law giving him the right to an award, he cannot invoke the' principles of equity and good conscience to secure one.”

Counsel for claimant refers to the case of People vs. Kopman, 358 Ill., page 479, and quotes therefrom as follows:

“The tax was delivered into the hands of the defendant as the agent of the State. The money was ‘delivered’ to him in the sense that word is used in Section 74 of the Criminal Code.”

and in commenting thereon, claimant argues that this decision makes it clear that the distributors’ duty to' turn over to the State tax money collected by the distributor is absolute, but this decision under the “duty to collect” in no way excludes the reasonable extending of credit. The Supreme Court of Illinois in the Kopman case did use the language referred to by claimant, and went further. We quote from the bottom of page 482 and the top of page 483 as follows:

“The statute makes the distributor the agent of the State as a collector of the tax. It comes to his hands while he is acting in a fiduciary capacity as agent of the State for its collection. It in no sense belongs to the distributor but is the property of the State. Section 15 of the Act, as amended by an Act approved July 3, 1931, provides: ‘Whoever * * * willfully fails or refuses to make payment to the Department of Finance' as provided in either Section 6 or Section 7, shall be punished by a fine of not to exceed $5,000 or by imprisonment in the penitentiary for not less than one year nor more than five years or by both such fine and imprisonment.’ ”

Section 2 of the Motor Fuel Tax Act (Smith’s Stat. 1933, chap. 120, par. 418) provides: “A tax is hereby imposed on the privilege of operating motor vehicles upon the public highways of this State after July 31,1929, at the rate of three cents per gallon of all motor fuel used in such motor vehicles upon such public highways. ’ ’ Other sections of the Act define a distributor of motor fuel, provide for the licensing and bonding of distributors and for monthly returns to the Department of Finance. Section 6 of the Act requires each distributor to collect from the purchaser at the time of sale three cents per gallon on all motor fuel sold.

Claimant argues that the Act does not exclude or prohibit a distributor from extending reasonable credit. That is true, and it would be an unlawful interference with the distributor’s business if it did. If for business reasons a distributor desires to extend credit, that is entirely within his discretion. Section 6 of the Act requires each distributor to collect from the purchaser at the time of sale, three cents per gallon on all motor fuel sold. The above statement of claimant is only partially true. The law requires a collection of three cents from the purchaser at the time of the sale and the distributor has no power to extend credit for the amount of the sales tax.

In passing, it might be remarked that this is not an income tax and business losses are not deductible.

Claimant argues that an interpretation of the language of the Motor Fuel Act as prohibiting distributors from extending credit would result in the language meaning that the Act requires the distributor to pay the tax out of the distributor’s own funds in such cases where the distributor did extend credit and failed to collect. This contention is answered by reference to Section 6 of the Motor Fuel Act above referred to.

Citations from the case of State vs. Liberty Oil Company, 97 So. 438 and Standard Oil Company vs. Brodie, 153 Ark. 114 are also cited and relied upon by claimant, but after a careful consideration thereof, we find no authority for holding that a distributor is not bound to pay the tax under the facts in this case. A distributor may extend credit under the Illinois Motor Fuel Act for the purchase price of the motor fuel, but must adhere to the opinion of the Supreme Court of Illinois in the case of The People vs. Kopman, 358 Ill. on page 482 wherein it is said: “Section 6 of the Act requires each distributor to collect from the purchaser at the time of sale three cents per gallon on all motor fuel sold” and we must hold that a sale takes place when the article is sold upon credit just the same as if cash had been paid therefor. There was no reservation of title, and by the nature of things, a conditional sale for motor fuel under the conditions here, did not take place.

An award, therefore, will be denied.


source: Caselaw Access Project

author: Mb. Chief Justice Hollerich

license: Public Domain

text:
    (No. 3123
    Elida Dievenkorn, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 13, 1939.

    Benson, Fitch & Heinemann, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollerich

delivered the opinion of the court:

For more than one year prior to March 8th, 1936, claimant was employed by respondent as an attendant at the Chicago State Hospital at Dunning*, Illinois.

On the last mentioned date, about 6:30 A. M., while on her way from the Nurses’ Home, where she had remained overnight, to Ward C, where she was to go on duty, she tripped and fell over a water pipe lying across the sidewalk, whereby she sustained a fracture dislocation of the left arm at the elbow. She was immediately taken to the institution hospital where the dislocation was reduced by Dr. George E. Booney, a member of the staff. She remained at the hospital until March 20th, 1936 and returned to work approximately two weeks after, the date of her injury. Her arm was still in splints at that time, and she was given lighter work than she previously performed, and thereafter continued in the performance of such work to the time of the hearing herein.

She remained under the care of Dr. Booney for some time, and received treatments in the physical therapy department of the institution for the improvement of the condition of her arm; — the last treatment being in the summer of 1937. On October 26, 1937, Dr. Booney again examined claimant and found that she had a limitation of motion in the left arm, and that such condition was permanent.

The record shows that the institution grounds have an area of approximately one-half mile square or more; that the institution has its own heating plant, as well as a power plant, and laundry, all equipped with power-driven machinery; also steam pressure cookers, elevators, and numerous motor trucks.

Upon a consideration of all of the evidence in the record, we find that on the 8th day of March, A. D. 1936, the relation of employer and employee existed between the respondent and the claimant, and that they were then operating under the provisions of the Workmen’s Compensation Act of this State; that on said date claimant sustained an accidental injury which arose out of and in the course of her employment; that the respondent had notice and knowledge of the accident immediately after the occurrence thereof; that the annual earnings of the claimant were $912.00 and her average weekly wage was $17.53; that claimant at the time of the injury had one child under the age of sixteen years; that all necessary first aid, medical, surgical and hospital services, as well as physical therapy treatments for the improvement of the condition of claimant’s left arm, were provided by the respondent, and that the last mentioned treatments were continued to the summer of 1937; that claimant was temporarily totally disabled for the period of two weeks from the date of her injury as aforesaid; that claimant was paid her full wages during and subsequent to the period of her temporary total disability as aforesaid; that as the result of the injury so sustained by the claimant as aforesaid, she has suffered the loss of thirty-five per cent (35%) of the use of her left arm; that claimant is therefore entitled to have and receive from the respondent the sum of Eleven Dollars ($11.00) for one week’s temporary total disability pursuant to the provisions of Paragraphs (b) and (j) of Section Eight (8) of the Compensation Act as amended, and is also entitled to have and receive from the respondent the further sum of Eleven Dollars ($11.00) per week for 78.75 weeks for the permanent loss of thirty-five per cent (35%) of the use of the left arm, as provided by Paragraph (e) of Section Eight (8) of the Compensation Act, as amended, to wit, the sum of Eight Hundred Sixty-six Dollars and Twenty-five Cents ($866.25); that claimant has received the sum of Thirty-five Dollars and Six Cents ($35.06) to apply on the compensation due her; that the remainder of the compensation due her, to wit, Eight Hundred Forty-two Dollars and Nineteen Cents ($842.19), has accrued prior to this date.

Award is therefore entered in favor of the claimant for the sum of Eight Hundred Forty-two Dollars and Nineteen Cents ($842.19).

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3d, 1937 (Session Laws 1937, p. 83), and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Fund in the manner provided for in such Act.


author: Mr. Justice Yantis

text:
    (No. 3094
    John B. Anderson, Receiver by Appointment of the Circuit Court of Will County, Illinois, in Case No. 39672, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 13, 1939.

    Barr & Barr, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks damages of $41,000.00 alleged to have been caused by the construction of a bridge on Cass • Street over the Illinois Waterway in the City of Joliet, Illinois. The property in question lies immediately east of the Illinois Waterway on the north side of Cass Street and has a frontage of seventy-five feet on the latter. The rear of the lot angles northeast, and the longest side of such lot adjoins an alley on the east for a distance of one hundred thirty-two feet north and south. Prior to 1927 this property was occupied by the Joliet Sheet Metal Company. In that year the company sold the property to William J. Kexel and Joseph F. Skrinar, the former having previously had an interest in the above named company. They paid $18,500.00 for the property in 1927. Soon thereafter they removed the old frame buildings, leveled the ground, filled it in and rented it to a woman for a root-beer stand. Up to that time the waterway was known as the old I. & M. Canal, which with the Desplaines River, was afterwards made a part of the Illinois Waterway. About a year before the Illinois Waterway was constructed Kexel and Skrinar rented this piece of ground to an Edward Kelly for a gasoline service station. Kexel testified that Kelly understood he was to have a filling station located on the lot for only a temporary period. After the waterway was constructed they removed the filling station in pursuance of that understanding. Prior to the building of the waterway, there was a sales room and garage just east of this lot; then came a vacant lot and east of that was a three-story retail mercantile building. On the south side of the street there was an automobile sales room and garage and east of that a three-story brick and stone building. When Kexel and Skrinar bought the property they obtained a loan on it of $10,000.00 and in 1928 made a new mortgage for $12,500.00, which is still unpaid.

On August 8, 1931 Skrinar and his wife conveyed their undivided interest in the premises to the Joliet National Bank, apparently as security for a loan. On February 10, 1932 the Joliet National Bank was taken over by the comptroller of the currency and a receiver was appointed. On December 13, 1932 the Skrinars were adjudged bankrupt and a trustee was appointed. John E. Barr and the First National Bank of Joliet became the holders of the notes secured by the mortgage of $12,500.00 on the premises in question and at the March term of the Circuit Court of Will County in 1933, John B. Anderson was appointed for the purpose of prosecuting this claim for damag'es. The order of his appointment contains this wording-, “To prosecute a claim against the State of Illinois because of damages done to the property herein described, by the State of Illinois in the construction of the Illinois Waterway and particularly the Cass Street Bridge and its approaches;” also the following — “Pending the action by the receiver all parties are enjoined from prosecuting any claim against the State on account of any damages to said real estate because of the construction of the Illinois Waterway. The distribution of any recovery by said receiver and the priority rights of the several interested parties therein are reserved for further determination by the Circuit Court of Will County.”

Thereafter the First National Bank also went into the hands of the receiver. Efforts for a settlement having failed, John B. Anderson as receiver filed this claim April 30, 1937 for resulting damages to property not taken. The claim recites that for many years the Desplaines Biver and the I. & M. Canal had been crossed at Cass Street by a public bridge extending east and west at grade; that under Section 20 of the Illinois Waterway Act if existing bridges were damaged or materially impaired, the Department of Public Works and Building’s should repair or reconstruct such public bridges and approaches; that commencing about May 15, 1932 and continuing until about December, 1932, the State of Illinois by and through the Department of Purchases and Construction, which at that time had the duties of the Department of Public Works and Buildings, constructed a new bridge across the Illinois Waterway on Cass Street; that to provide a clearance of sixteen and one-half (16%) feet the new bridge was constructed twenty (20) feet higher than the bridge previously in existence; that it became necessary as a result for the State to build approaches to the bridge; that the street and sidewalk in front of the property herein described had previously been level and at grade with the lot; that by building the bridge and east approach thereto, the grade had been raised in front of petitioner’s property a distance of seven (7) feet at the east end and twenty (20) feet at the west end, resulting in a seven (7) per cent descending grade past claimant’s property; that as a result ingress and egress to this property has been materially interfered with and said premises caused to be of little value. Claimant contends that immediately prior to the construction of the present grade of the Cass Street approach, these premises were of the value of $50,000.00; that the fair cash market value thereafter was $9,000.00, and that the loss or damage sustained by claimant by reason of the construction is $41,000.00.

The complaint further recites that by an Act of the legislature approved July 6, 1935 the Act providing for the Department of Public Works and Buildings adjusting such claims was repealed, and claimant was informed that he would have to seek his relief in the Court of Claims. The claim further recites that the Illinois Waterway Act provides, under Sec. 23 thereof that—

“The State shall be liable for all damages to real estate within a radius of the Illinois Waterway, which should be overflowed or otherwise damaged by reason of the construction, maintenance or operation of the Illinois Waterway and its appurtenances.”

On July 1, 1935 Section 24 of the Waterway Act providing for the settlement of waterway claims by the department was repealed by the passage of House Bill No. 933.

On May 8, 1939 an amendment was filed to the claim by leave of court first had and obtained, in any by which claimant represents that the damages to the property heretofore described arose out of the construction of the east approach to the Cass Street bridge, and that prior to and subsequent to the construction of said approach and of the reconstruction of the Cass Street bridge, said street was a part of Illinois S. B. I. Route No. 22, and that the reconstruction of said bridge and of the approach thereto was for the purpose of carrying said Route No. 22 over the Illinois Deep Waterway, and was a part of the construction by the State of Illinois of a State-wide system of durable hard-surface roads upon the public highways of the State. Thus we find that while claimant originally predicated his claim upon the theory that said bridge and approach were a part of the Illinois Waterway construction project, he now contends in the amendment to his claim that the damages resulted from the construction of a part of the hard road improvement program.

A stipulation has been filed, stating that the bridge in question was constructed under the direction and supervision of the Department of Purchases and Construction; that prior to July, 1933 various conferences were had between claimant’s representatives and the director of said department and thereafter with the director of the Department of Public Works and Buildings; also that more funds remained unexpended in the Illinois Waterway Special Fund prior to, during and after the completion of the bridge in question, than the amount necessary to pay for the construction of such bridge and its approach and of any damage that might arise out of same.

The Attorney General concedes in his argument that since the repeal 'of Section 24 of the Illinois Waterway Act in 1935 there can be no doubt that the Court of Claims has exclusive jurisdiction of a claim for damages resulting from the construction of the Illinois Waterway. The Attorney General as counsel for respondent submits three main points to be considered, i. e.:

1. The basis of recovery.

2. From what fund the damages, if any, are payable.

3. The right of the legislature to appropriate for the payment of such damages.

The Attorney General also submits that the measure of damages is the difference in the fair cash market value of the property not affected by the improvement and its fair cash market value as affected by it. He further limits this rule, that such decrease in valuation must be such as is attributable to the construction. Counsel for claimant agrees to the above rule, but respective counsel differ widely as to the weight and materiality of testimony by various witnesses as to the valuation of the property, both before and after the construction of the bridge approach. Claimant introduced evidence by a number of witnesses, both as to the value of the premises, and as to the undesirability of same in the operation of a business if there is a grade of seven (7) per cent running by the premises. Mr. Kexel, being one of the parties in interest for whom the claimant sues, testified that he has no personal knowledge of any sales with which to make comparison relative to the fair cash market value of this property; that in his opinion the fair cash market value in 1925 and in 1932 would be approximately the same; that according to the loan values in 1925 the value of the property was between $20,000.00 and $25,000.00. This witness further testified that the possibilities of value of the property immediately prior to the construction varied on account of the uncertainty of the grade that would be established on the street; also that after 1932 the general economic conditions might have affected the salability of the property; further, that immediately before the construction of the bridge he would not have been willing to pay $20,000.00 for it with the uncertainty of the grade to be considered; that in 1928 he and Mr. Skrinar had one offer of $25,000.00 and one of .$32,000.00, but that both of these were declined.

Mr. Stanley Munroe of the real estate firm of Munroe Brothers, of Joliet, a witness for claimant, fixed the valuation of the property prior to the construction of the approach at $18,000.00 and the value thereafter at $4,000.00.

Mr. Frank P. Lumley, associated with the Oliver Realty Company, called as a witness for claimant, concurred in these figures. This witness made a comparative study of the premises with properties on Wacker Drive in Chicago and visualized the possible improvements from a study thereof.

Mr. James E. Farrell, a witness for claimant, testified that he was the general manager of one of the larger department stores in Joliet; that while he was familiar with the fact that the Desplaines River carries sewage from the City of Chicago and vicinity, that he had never noticed any particular odor off the Desplaines River, and that except for the seven (7) per cent grade the property in question would be desirable for retail merchandising purposes.

Mr. Charles Graham, another witness for claimant, testified that he had handled the real estate and mortgage department for the Illinois Securities Company for ten years and that he had collaborated with the witnesses Munroe and Lumley to détermine the valuation of the property in question. He concurred in their conclusion as to a value of $18,000.00 before the improvement and of $4,000.00 thereafter. He testified that he and the other witnesses visited the property together and discussed the values; that they were reasonably close together and agreed on the figures given. This witness testified that there has been a lot of optimism up to 1933 about the future of Cass Street property; that this enthusiasm resulted from the erection of a number of new buildings in 1928 and 1929, but that he does not recall any new buildings along either side of the Desplaines River within a distance of two hundred fifty feet from the edge of the river during the last six years. He further testified that in his opinion the location in question will never be particularly desirable with the grade as it now exists and in such close proximity to the drainage canal; that irrespective of the grade the proximity of the property to the canal and the possibilities of the latter continuing to be used as it is make him believe that the people of Joliet have been very optimistic about Cass Street values.

The respondent introduced two witnesses on valuation, George R. Hill who has been exclusively engaged in the real estate business for thirty-five years in Joliet and Will County and Charles A. Noble who has been engaged in the real estate business for forty years in Joliet and Will County. All of the witnesses who have testified as to valuation have apparently had considerable experience and it is somewhat difficult to reconcile the wide difference in values as determined by them. Respondent’s witness Mr. Hill placed the fair cash market value of the property for the highest and best use for which it was available, immediately prior to the construction of the bridge, at $5,000.00, and he fixed the valuation subsequent to the completion of the bridge at $3,500.00, or a decrease of $1,500.00. This witness has known the property for fifty-three years and was daily employed for sixteen years by a lumber firm at the corner of Cass and Desplaines immediately east of the bridge in question. He testified that the stream over which the bridge is built was formerly known as the Sanitary Canal; that when the Sanitary District Canal was constructed a concrete wall was built along its banks; that a number of years ago this wall was taken out, the channel was widened and it was thereafter known as the Sanitary District and Illinois Waterway; that at other times it has been known as the Desplaines River and as a part of the I. & M. Canal. This witness also testified that the property immediately adjoining the one in question had been sold prior to the building of the new bridge to Voiglit Brothers for a garage, and that they paid $3,900.00 for that lot which measured 66' x 150'. Mr. Hill further testified that he had measured the distance from the level of the ground at the front of the lot in question to the top of the approach to determine how high the approach is above such property; that he found by actual measurement that at the east end of the property the approach is three feet above the surface; that at the west end about eight or nine feet above the level of the property.

The other witness, Mr. Noble, fixed the valuation of the property prior to the construction at $4,500.00 and after the construction at $1,500.00. An appraisal made by or for the Division of Waterways, as shown by the latter’s report filed herein on May 13, 1939 shows a valuation appraisal by a Mr. Briggs iu 1930 at $18,500 and another appraisal by a Mr. Mills in 1932 at $11,100.00. The latter appraiser fixed the value of the premises after the improvement at $9,146.40, and upon the basis of these figures the State at that time offered $2,000.00 in full settlement of the claim, but this offer was declined.

The court has. carefully studied the testimony of the several witnesses as to values and the facts upon which these opinions, of value rest. The members of the court have also made a recent inspection of the property and of its surroundings. We had previously had occasion to consider the valuation of property in this immediate vicinity, and of the damage resulting* thereto from a construction of this improvement, in the cases of Fred Grassle vs. State, 8 C. C. R 150 and the cases of Stein, et al., 8 C. C. R. 251. In all of these former cases some of the same witnesses appeared and claimants were represented by the same counsel. In the claim filed in the Stein matter it was represented that in 1932 the State of Illinois was engaged in the construction of the Illinois Waterway through the City of Joliet, following in general the bed of the Desplaines River and the I. & M. Canal; that for a longer time than anyone living recalls, the river and canal were crossed by a public bridge at grade extending* from east to west on Cass Street. In those cases claimants, by counsel, and the Department of Public Works and Building’s, stipulated that their claims should be submitted to the Court of Claims for determination and that an award, if any should Be made, should be paid by the Department of Public Works and Buildings as a waterway claim, and not by appropriations by the legislature for the payment of awards by the Court of Claims as in other cases. The Grassle case was decided in September, 1934. In our recent inspection of the premises we have been able to view the apparent effect of the Cass Street bridge construction upon the Grassle property since 1934 when the claim for damages thereto was awarded. From a consideration of all the evidence and from its inspection of the premises for which damages are sought, the court is of the opinion that the difference in market value of the property before and after completion of the said Cass Street bridge and its approach is not in excess of $4,500.00, and that if an award is made for such sum the owners of said premises will be justly and fully compensated for the damages they have sustained.

We further believe, upon the second question suggested by the Attorney General, that the award should be payable as damages incurred in the course of the construction of the Illinois Waterway. In the amendment to the complaint herein filed, counsel submits that the construction of the Cass Street bridge and the approach thereto were made as a part of Illinois S. B. I. Route No. 22 and that such construction was for the purpose of carrying said route over the Illinois Deep Waterway and was a part of the construction, by the State, of a state-wide system of durable hard-surfaced roads upon the public highways of Illinois; further, if there is an insufficient amount of money in the Illinois Waterway Fund out of which to pay any award entered herein, that such award might be paid by an appropriation from funds available for highway construction. This position is a distinct departure from the averments contained in the original complaint, wherein claimants described and referred to said bridge and its approach as a part of the construction of the Illinois Waterway. The latter position was in accord with the position previously taken by counsel for claimant in the Grassle, Stein and other cases above referred to. The claim recites and the evidence shows, that there was a bridge across the river and the I. & M. Canal at Cass Street from the time of memory of living men, and that Cass Street was a part of said Route No. 22, and that the traffic over such route passed over and across the canal by means of the then existing bridge. Counsel for claimant cites that provision of our statutes which reads—

“If in the construction of the ‘Illinois Waterway’ present bridges are damaged or materially impaired, the Department of Purchases and Construction shall repair or reconstruct present public bridges and approaches. * * * (Ill. Rev. Statutes, 1981, Ch. 19, Sec. 98)”

There is nothing in the record indicating that the Cass Street bridge was unusable because of age, or of insufficient strength to bear the loads imposed by traffic or that it was of insufficient width or clearance to permit the use thereof for traffic. So far as the demand for highway purposes are concerned there is nothing in the record that indicates there was a need for the reconstruction of said bridge or the building of an inclined approach thereto. It does appear however, that the canal was at the time in question being reconstructed as a part of the Illinois Deep Waterway Project, and that as a part of such program it was deemed necessary to elevate the Cass Street bridge to aid in carrying out the purposes of the Deep Waterway.

Counsel for claimant have questioned the consistency of the Attorney General’s position in opinions given by the latter’s office in regard to this question. He refers to the Attorney General’s opinions of 1930 at page 603, wherein it is stated that bridges over the Illinois Deep Waterway on S. B. I. routes can be built out of Road Funds. The Assistant Attorney General appearing for respondent cites the opinion of the Attorney General in opinions of 1929 at.page 255:

“In answer to your second question, will say that if the reconstruction or replacement of existing bridges which are now adequate and serviceable for highway purposes is made necessary by the building of the waterway, then in my opinion the cost of such reconstruction would properly be chargeable to deep waterway construction and would have to be paid out of the waterway fund, and that in view of the provisions of the canal section of the Constitution, the General Assembly is without authority to make additional appropriations for the reconstruction of such bridges.”

We believe the distinction as set out in the latter opinion is material in the present case, i. e. where it appears that the reconstruction or replacement of the bridge is shown to be for and in connection with the building or the improvement of the waterway, the building is chargeable to the Waterway Fund, and in view of the provision of Section 1 of Article lá of the Constitution of Illinois, the only funds that can legitimately be used in such improvement are those derived from the $20,000,000.00 bond limit or the surplus earnings of the waterway, and the legislature cannot make valid appropriations of other funds from the State Treasury therefor.

The province of the Court of Claims is to determine the propriety and amount of an award, if any, in a given case. The making of an appropriation therefor, and the payment thereof, are not matters in which this court presumes to dictate. It is necessary however, that in recommending an award to the legislature for its favorable action, we should indicate our opinion as to the validity of such appropriations, if made. We believe that the award herein made would be validly payable out of any funds available for the building, enlargement, maintenance or extension of the I. & M. Canal or of the Illinois Deep Waterway. An award is therefore hereby made in favor of claimant in the sum of $4,500.00, payable from such funds as may be available for the payment of claims and demands growing out of the construction or maintenance of the I. & M. Canal or the Illinois Deep Waterway.


author: Mr. Chief Justice Hollerich

text:
    (No. 3021
    W. J. Mumm, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 13, 1939.

    Glen E. Chapman, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

For some time prior to, and on December 4th, 1935, the claimant, W. J. Mumm, was in the employ of the respondent as an associate in plant breeding in the Agronomy Department of the College of Agriculture of the University of Illinois, at a salary of $195.83 per month.

Claimant was employed to give class instruction, to do corn breeding work, and experiment work on corn variety test plots. On the date last mentioned, while in the performance of his duties, claimant was husking corn by hand at the DeKalb Experimental Field, which is operated for experimental and educational purposes by the University of Illinois, one mile south of the City of DeKalb. In the course of such work, an ear of corn was thrown in such manner as to strike him in the left eye, breaking one lens in the spectacles he was wearing, thereby causing pieces of glass to become embedded in the eye and penetrate the eyeball so deeply as to cause the fluid to be drained therefrom. He was immediately taken to the DeKalb Public Hospital where he was examined and given first-aid treatment. Thereafter he was treated by several eye specialists, and treatments of the eye were continued to and including the month of December, 1936.

Claimant incurred bills for medical services and hospitalization in the amount of $701.58, of which amount $42.00 was paid by the University of Illinois Hospital Association, of which claimant was a member, $130.23 was paid by claimant, and the balance of $529.35 remains unpaid.

Notice of the accident was given, and claim for compensation on account thereof was made within the time required by Section 24 of the Compensation Act.

It is admitted that the accident in question resulted in the permanent injury of claimant’s left eye, and from all of the evidence in the record, it appears that he has sustained the permanent loss of fifty per cent (50%) of the sight of such eye, for which he claims compensation under the terms and provisions of the Workmen’s Compensation Act of this State.

For a proper determination of the questions involved, it will be necessary to consider briefly the pertinent provisions of the Workmen’s Compensation Act.

Section 3 of the Act defines the application thereof, and provides as follows:

“The provisions of this Act hereinafter following shall apply automatically and without election to the State, county, city, town * * * and to all employers and all their employees engaged in any department of the following enterprises or businesses which are declared to be extra-hazardous namely: — ” (then follows a list of ten specified enterprises or businesses which are declared by the Act to be extra-hazardous).

Section 4 defines the term “employer” as used in the Act, and provides as follows:

“The term ‘employer’ as us^d in this Act shall be construed to be:-—
First — The State and each county, city, town, township * * * therein.
Second — Every person, firm, public or private corporation * * * engaged in any of the enterprises or businesses enumerated in Section 3 of this Act. * * ’:=”

Section 5 defines the term “employee” as used in the Act, and provides as follows:

“The term ‘employee’ as used in this Act, shall be construed to mean: — ■
First — Every person in the service of the State, including all persons in the service of the University of Illinois on and after January 25, 1933, except members of the instructional, research and administrative staffs thereof, when not, at the time of the injury, actually engaged in an occupation declared to be extra-hazardous in Section three (3) of this Act, county, city, town, township,” etc.

Prior to 1935, Section 5 of the Act read as follows:

“The term ‘employee’ as used in this Act, shall be construed to mean:—
First — Every person in the service of the State, county, city, town, township,” etc., etc.

In 1935 said section was amended to read as first above set forth,'that is to say, there was inserted therein the words, “including all persons in the service of the University of Illinois on or after January 25, 1933, except members of the instructional, research and administrative staffs thereof when not, at the time of the injury, actually engaged in an occupation declared to be extra-hazardous in Section Three (3) of this Act.? ’

Prior to such amendment, every person in the service of the. University of Illinois (being a person in the service of the State) was an employee within the meaning of such section; since the amendment, members of the instructional, research and administrative staffs are employees, within the meaning of such section, only if, at the time an injury is sustained, they are engaged in an occupation declared to he extra-hazardous in Section 3 of the Act.

Although Section 3 specifically provides that the Act shall apply automatically and without election to the State, county, city, * * * incorporated village, and to all employers engaged in any department of the several enterprises or businesses therein designated as extra-hazardous; and although the State, and each county, city, * * * and incorporated village is specifically designated in Section 4 as an employer; and although every person in the service of the State, county, city, * * * incorporated village, is specifically designated in Section 5 as an “Employee;” — still the Supreme Court, in the case of Village of Chapin vs. Industrial Commission, 336 Ill. 461, held that the Act did not apply automatically to such Village. In that case the employee was injured while engaged in hauling dirt, to fill up holes in the streets. The only question in the case was whether the Village automatically came under the Act by virtue of Section 3 thereof. If so, the employee was entitled to compensation; if not, he was not entitled to compensation unless he could prove that the Village was engaged in some enterprise or business declared to be extra-hazardous by said Section 3.

In that case the court, after a careful consideration of the Compensation Act, and the several amendments thereto since the original Act was adopted, came to the conclusion that the provisions of the Act did not apply automatically to all cities and villages; and that in order that the municipal corporations mentioned in Sections 4 and 5 of the Act be bound thereby, it is necessary to .show that such municipal corporations are engaged in some one of the enterprises or businesses which are enumerated in Section 3 of the Act as extra-hazardous. The law as stated in the Village of Chapin case was approved in the case of Forest Preserve District vs. Ind. Com., 357 Ill. 389, where the court said:

“Where a municipal corporation does not engage in any enterprise or business or carry on any endeavors which include' those activities declared by Section 3 of the Act to he extra-hazardous, the corporation does not come automatically under the provisions of the Act. The record must show affirmatively that the municipality was engaged in some one of the extra-hazardous enterprises or businesses enumerated.”

So, in this case, the claimant must prove not only that he is an employee within the meaning of Section 5, but must also show that the respondent is engaged in an enterprise or business declared to be extra-hazardous by said Section 3.

Counsel for claimant, on page 2 of their Statement, Brief and Argument, admit that claimant probably would be classed as a Member of the Instructional or Research Staff or probably both instruction and research.

There is nothing in the record to indicate the claimant at the time of the injury was actually engaged in an occupation declared to be extra-hazardous in Section 3 of the Act, and consequently there is nothing to show that claimant was an “employee” within the meaning of Section 5 as amended, at the time of his injury; nor is there any evidence in the record to prove that the respondent is engaged in any enterprise or business designated as extra-hazardous in Section 3 of the Act.

Counsel for claimant contend that even though claimant was a member of the instructional staff, yet at the time of the accident he was doing the work of a laborer; that if a laborer was injured under similar circumstances, he would be entitled to compensation; and that therefore claimant should have the same right. Such, however, is not the law. Claimant bases his right of recovery on the Workmen’s Compensation Act, and must bring himself within the provisions of the Act in order to be entitled to an award. The books are full of cases where there are similar inconsistencies, but such results always follow the application of general laws to particular cases.

Furthermore, if a laborer were injured while doing work similar to that in which claimant was engaged at the time of his injury, he would not be entitled to compensation under the Act.

The proviso of Paragraph 8 of Section 3 of the Compensation Act states that “nothing contained herein shall be construed to apply to any work, employment or operations done, had or conducted by farmers and others engaged in farming, tillage of the soil, or stock raising, or to those who rent, demise or lease land for any of such purposes, or to anyone in their employ, or to any work done on a farm or country place, no matter what kind of work or service is being done or rendered. ’ ’

The question as to the proper construction of this proviso was before our Supreme Court in two cases, to wit: Hill vs. Ind. Com., 346 Ill. 392, and Noverio vs. Ind. Com., 348 Ill. 137.

In the Hill case, the employee was working for a farmer by the name of Weber who bought a threshing machine and engaged in threshing grain for his neighbors as well as himself, and afterwards attached a clover-hulling device to the separator and agreed to hull clover for some of his neighbors. Hill assisted in running the threshing machine and operated the separator while hulling clover. While engaged in such work on the farm of a neighbor, Hill was kicked by a horse and sustained injuries for which he claimed compensation. The employer contended that the work in which they were then engaged was work on a farm within the meaning of the above proviso, and that the injuries sustained by the claimant therefore were not compensable.

In considering such contention the court, on page 396, said:

“By the usual rule of construction the words ‘any work done on a farm or country place’ must be limited by the context of the Act to mean work which is in its nature a part of farming. It cannot be said that plaintiff in error, while hulling clover for another for hire, was a farmer engaged in farming, tillage of the soil, or stock raising, renting, demising or leasing land for any such purpose on his own behalf, and if this were the extent of the exemption we would be constrained to agree with the contention of defendant in error that the operations here were under the Act. The exemption, however, goes further and applies to any work done on a farm or country place, no matter what kind of work is being done or rendered. Even limiting this language to work which is in its nature farm work, it is apparent that the legislature intended to exclude from the operation of the Act not only the employer and employee who are engaged in general farming operations for such employer but who are doing any farm work on a farm or country place.”

Ill the Noverio case, Noverio undertook a patch tile job on a farm, and was struck in the eye by a piece of metal while he was working at the home of his employer at some considerable distance from the farm in question, making screens to cover the tile outlet.

It was contended on the part of the employee that he was under the Compensation Act by reason of the fact that sharp-edged cutting tools were used in the doing of the work. The employer took the position that the work being done was “work on a farm,” within the aforementioned proviso. In disposing of the question there raised, the court, on page 139, said:

“Without regard to the question as to whether Corsini’s business could be held to involve excavating or the use of sharp-edged cutting tools within the contemplation of the statute, it clearly was in its nature farm work. No work could be more fundamentally a part of farming than drainage to put the soil in shape for cultivation. That it was being done by one not engaged in general farming himself is immaterial. It is true that the portion of the operation in which the injury actually occurred does not appear to have been performed within the physical boundaries of the particular farm for which the tiling was being done, nor is it definitely shown to have been done on soil in the nature of a farm or country place as distinguished from other types of realty. Such, however, is not here a material consideration. The adjournment to Corsini’s basement was obviously to facilitate the completion of an integral part of the drainage system that was in process of installation on the farm and the character of the work was in no sense altered thereby.”

The only facts in the record relative to the work being done by claimant at the time of his injury are, in substance, that he was “husking com by hand at the DeKalb Experimental Field which is operated for experimental and educational purposes by the University of Illinois.” As we view the matter, that constitutes work on a farm, within the meaning of the proviso in Paragraph 8 of Section 3 of the Act.

The suggestion is made that claimant is entitled to an award on the grounds of equity and good conscience. Similar contentions have heretofore been made in numerous other cases before this court, but it is now well settled that the Court of Claims Act of this State merely provides a forum in which claims against the State may be heard; that such Act does not create any new liability against the State, or increase or enlarge any existing liability; that the authority of this court to allow awards is limited to claims in which the claimant would be entitled to redress against the State, either at law or in equity, if the State were suable; that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the doctrine of equity and good conscience to secure such award. Crabtree vs. State, 7 C. C. R. 207; Titone vs. State, 9 C. C. R. 389; Garbutt vs. State, decided at the September Term, 1937; Bishop vs. State, decided at the November Term, 1938.

This case appeals very strongly to the sympathies of the court, but we do not make the law and can only interpret it as we find it. This court has only such jurisdiction as is conferred by legislative enactment, and much as we would like to enter an award herein, we have no authority to do so under existing laws and the record before us.

Award must therefore be denied and the case dismissed.


author: Mb. Justice Linscott

text:
    (No. 2911
    Andrew Basnyk, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 13, 1939.

    Gariepy & Gariepy, for claimant.

      John E. Cassidy, Attorney General; Mubbay F. Milne, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

On June 4, 1936, claimant filed his complaint alleging that on October 23, 1935, he was injured by reason of an accident arising out of and in the course of his employment while working in the kitchen of one of the shelters operated by the Illinois Emergency Relief Commission at 115th and Michigan Avenue, Chicago, Illinois, and avers that at that time he was employed by the Illinois Emergency Relief washing dishes; that he accidentally scratched his left hand on a tin plate, and that an infection set in which later developed into blood poisoning and resulted in a complete loss of use of the left hand; that medical and surgical treatment were furnished by the Illinois Emergency Relief Commission, and that his claim is for $7.50 per week temporary compensation during the time he was treated and convalescing from the effects of the injury and for $7.50 per week for 135 weeks for loss of use of the left hand. He alleges that he had no children dependent on him for support and that immediate notice of the accident was given to his superiors. This complaint was sworn to on the 2nd day of June, 1936.

Claimant filed an amended petition wherein it is averred that on January 23, 1935, he was injured by reason of an accident arising out of and in the course of his employment while working in the kitchen of one of the shelters operated by the Illinois Emergency Relief Commission at 11526 South Michigan Avenue, Chicago, Illinois, and he avers that on the latter date, he accidentally scratched his left hand on a tin plate; that an infection set in which later developed into blood poisoning and resulted in a complete loss of use of the left hand; that medical and surgical treatment were furnished by the Illinois Emergency Relief Commission. Claimant made the same claim for compensation as he made in his original complaint and this complaint was sworn to on the 25th day of May, 1937.

Counsel for the State filed a motion to dismiss on the grounds that neither the original complaint nor the amended complaint show that claim was made within one year after January 23, 1935, the date of his alleged injury.

Counsel for claimant did not file a brief.

This claim must be denied for the reason that this court has no jurisdiction and for the reason that no award can be made to a state employee for injuries arising- out of and sustained in the course of his employment unless the claimant filed his claim with the clerk of this court within one year after the date of the alleged injury.

See Section 24 of the Illinois Workmen’s Compensation Act;
Quillmcm vs. State, 8 C. C. R.;
Lay vs. State, 8 C. C. R. 34;
Crabtree vs. State, 7 C. C. R. 207.

Claim will, therefore, be denied.


author: Mr. Justice Tantis

text:
    (No. 3248
    John Berg, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 10, 1939.

      Rehearing denied June 13, 1939.

    Hinshaw & Culbertson, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant, John Berg, seeks- an award of Twenty-five Thousand ($25,000.00) Dollars for loss- of time, medical and hospital expenses and permanent disability alleged to have resulted from an illness caused by vaccination of claimant as a member of the Illinois National Guard. Claimant enlisted in March, 1937 in Company B, 108th Combat Engineers. He was twenty years of age, unmarried and employed as addressograph operator at the Commonwealth Edison Company of Chicago, at a salary of Seventy-five ($75.00) Dollars per month. On June 8, 1937 claimant in company with other members of his company, underwent the required vaccination for smallpox, and also received the first injection of typhoid serum, preparatory to engaging in summer military maneuvers with his company at Camp Grant. On July 16, 1937 he noticed pains in the calves of his legs. On July 19, 1937 he was unable to go to work and was hospitalized at the Michael Beese Hospital in Chicago from July 22nd to July 28th, 1937. Dr. Chaloupka, a witness called by claimant, testified that he had known claimant for many years; that prior to July, 1937 he was in normal condition; that he was called to attend claimant at that time and found he had pain and weakness in the legs, arms and hands and that this condition progressively increased. There was no evidence in the beginning of temperature, sore throat or infection, no nausea and no evidence of gastro-intestinal trouble; that the absence of these symptoms definitely ruled out any diagnosis of polio-myelitis; that the patient’s condition gradually became worse and he became weaker; that he had a perfectly normal blood count and that a spinal puncture showed negative with no albumin, no globulin and no increased cell count. A diagnosis of toxic paralysis produced by vaccination was reached by Dr. Chaloupka, in conference with Dr. Theodore Stone, the latter being-connected with Passavant Hospital. Dr. Stone testified that after making a complete neurological examination of the patient he found that the latter had a paralysis of both arms and both legs with a bilateral foot drop. The patient spent about two and one-half (2%) months in bed receiving various types of treatment for his paralyzed condition. Late in the winter he was able to get out of bed but could not walk without help and was placed in a wheelchair. After about six weeks in the wheelchair that is in November, 1937 he began to walk with the aid of crutches. He was then given braces ' at the Michael Beese Hospital and was able to again resume part-time work on or about January 24, 1938. About March, 1938 he returned to full-time-work, continuing to wear the braces until approximately the 11th of November, 1938. At the time of the hearing on November 19, 1938 the claimant could walk by himself without braces, but only in a slow walk and could not lift the left foot more than an inch or so causing the heel of the left foot to strike the ground prematurely, by reason of what the doctor characterized as foot drop.

Up to February 12, 1938 claimant had incurred Six Hundred Ninety-five ($695.00) Dollars expenses for hospital, medical, nurses, braces, wheelchair and other incidents of his illness. This expense has all been paid or assumed by claimant and his father and none of it has been paid by the State. Part of the nurses’ expense was paid by some agency unknown to claimant. He first returned to work January 24, 1938 and at the time of the hearing- was receiving- the same wages that he had received prior to his disability. Dr. Stone testified that patient’s condition at the time of the taking of evidence might have a causal relationship with the vaccination and the conditions of July 28,1937. He was quite positive that claimant’s condition was not polio-myelitis. Dr. Stone further stated that in his opinion patient’s condition as disclosed at the time of the hearing was not permanent and that this type of patient usually makes a complete recovery, as the toxins causing the condition eventually become assimilated and disappear.

A Board of Medical Officers was convened for the purpose of making an examination relative to Private Berg’s disability, and to pass on the surgical and medical treatments rendered and the pay of the soldier during the period of his incapacity. The board was also directed to make recommendations relative to the necessity for medical treatment, hospitalization and payment of bills. The board met and questioned Private Berg who was accompanied by his attorney and the attending physician, Dr. Chaloupka. A complete neurological examination was also conducted by Dr. Alex S. Hershfield in the presence of the board. The Medical Board’s report found that Private Berg had a physical disability, i. e. a motor involvement of both lower extremities below the knees; that he is required to wear braces from the knees down; that the difficulty at the time of said findings is the result of an attack of acute anterior polio-myelitis; that no other factor except the infection that produces polio-myelitis is responsible for patient’s condition. Thereupon the board made the following recommendation:

“In view of the belief of the Board that the present disability of Private John Berg, presents the permanent residues of an anterior polio-myelitis, which is in no way incident to or caused by the innoculation or vaccination rendered on June 8, 1937, the' Board is unable to make any recommendations for further treatment, hospitalization, payment of bills for such services and pay of the soldier.”

Attached to the report of the Medical Board is a report by Dr. Alex S. Hershfield in which he states that the patient’s condition is due to an attack of acute anterior polio-myelitis, and that in his belief no other factor except the infection that produces polio-myelitis was in any way responsible for the patient’s condition.

A motion to strike the adjutant’s report was denied by the court on October 11, 1938.

While the evidence is conflicting, the greater weight thereof supports a finding that the claimant did not have anterior polio-myelitis, and that such evidence supports the diagnosis of toxic poisoning due to vaccine serum. The Attorney General in his Statement, Brief and Argument, filed herein on March 7,1939, concedes, in fairness to the claimant, that although it does not appear as a part of the record in this case, the medical records herein filed were in fact examined by Dr. A. C. Baxter, Acting Director of the Department of Public Health, and the latter expressed the opinion that from the history of the case and from a consideration of the medical records, he concurs in the above finding.

The claimant, pursuant to an order of this court entered February 14, 1939, submitted himself to an examination by Dr. Sidney 0. Levinson, Director, Samuel Deutsch Convalescent Serum Center, and Dr. Levinson is also of the opinion that the illness of the claimant was due to a reaction caused by his vaccination.

As it clearly appears that the vaccination to which claimant submitted was required of him as a member of the Illinois National Guard, and as the illness suffered by him is traceable to his military duty, his claim comes within the provisions of the Illinois Military S Naval Code, whereby this court is given ■ jurisdiction to render financial assistance. Said section provides as follows:

“In every case where an officer or enlisted man of the National Guard or Naval Reserve shall be injured, wounded or killed while performing his duty as an officer or enlisted man in pursuance of orders from the Commander-in-Chief, said officer or enlisted man or his heirs or dependents, shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand.” Sec. US (Ch. 129 Ill. Rev. Statutes).

While the evidence supports an award for temporary disability, it is not sufficient upon which to base an award for permanent disability. In addition to other relief, claimant is entitled to reimbursement for the medical care and expense incurred by reason of his illness. Such medical care and expense amounts to Six Hundred Fifty-seven ($657.00) Dollars. Claimant’s average weekly wage would approximate Seventeen and 30/100 ($17.30) Dollars in the employment wherein he was engaged both before his illness and subsequent thereto. He was compelled to quit work July 19, 1937 and was unable to go back to work until January 24, 1938. Thereafter for a period of approximately two- months he lost two hours per day which resulted in a decrease of pay of approximately $18.00 during the ensuing two months, after which time he went to work at full time. He has therefore apparently lost $485.10 in wages as a result of his- labor, and in the opinion of the court should receive an award for that amount. .

An award is therefore hereby made in favor of claimant in reimbursement of the expense incurred and wages lost as the result of the illness suffered by him in line of duty, in the total sum of One Thousand One Hundred Forty-two and 10/100 ($1,142.10) Dollars.


author: Me. Chief Justice Holleeich Me. Chief Justice Hollebich

text:
    (No. 3173
    Herman Bishop and Kenneth Bishop, by Herman Bishop, His Next Friend, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 16, 1938.

      Rehearing denied June 13, 1939.

    F. O. Parrish and E. P. Field, for claimants.
    Otto Kerner, Attorney Gfeneral; Murray F. Milne, Assistant Attorney Gfeneral, for respondent.
   Me. Chief Justice Holleeich

delivered the opinion of the court:

On December 30th, 1937 the claimants filed their complaint herein, and allege therein substantially as follows:

That on September 11th, 1936 three highway maintenance men in the employ of the Division of Highways, Department of Public Works and Buildings of the respondent, were engaged in constructing an expansion joint on S. B. I. Route 97 at a point three and one-half miles west of the Village of Roseville, in Warren County, known as Parrish’s Corner. S. B. I. Route 97 is a concrete highway, and at that point extends in a northerly and southerly direction and is there intersected by a gravel road which extends in a northerly and southerly direction. Just before noon on the last mentioned date, a trénch about six inches wide and nine or ten inches deep had been cut across the concrete slab and had been half-filled with hot liquid asphalt heated to 450 degrees or more. At noon the workmen stopped work, and proceeded to a point under a tree on the east side of the gravel road, about fifty (50) feet north and twelve (12) feet east of said trench or expansion joint, leaving the same without any guard or barricade, and without posting any notice of danger.

Also, that the claimant, Herman Bishop, is the father of the claimant, Kenneth Bishop; that the claimant, Kenneth Bishop, was then a minor of the age of seven (7) years, and resided with his parents some distance south of such concrete highway, on the east side of the aforementioned gravel road; that on the day in question, such minor was attending a school located a short distance north of said concrete highway, and on the west side of said gravel road; that it was customary for said minor at noon time to walk from said school to said Parrish’s Corner, where his father met him and took him home in an automobile.

Also, that at noon time on the date in question, said Kenneth Bishop, with four other children, traveled in a southerly direction along the east side of said gravel road, and passed the highway patrolman of the respondent who gave them no notice or warning of the hot asphalt in the trench or the danger connected therewith; that in crossing said concrete highway the claimant, Kenneth Bishop, stepped on and into the hot liquid asphalt in said expansion joint with his right foot, and thereby suffered severe burns, resulting in serious and permanent injuries.

Also, that the claimant Herman Bishop was then and there in the exercise of all due care and caution for the safety of said child, and had no notice or knowledge of the existence of said expansion joint; that the claimant, Kenneth Bishop, was not and could not be held guilty of contributory negligence; and that the aforementioned highway maintenance men were guilty of wilful, wanton and grossly negligent conduct which resulted, in the injuries to the minor claimant.

The Attorney General has entered a motion to dismiss on the ground that the State is not liable for the negligence, or for the wilful and wanton misconduct of its employees engaged in the maintenance and repair of its highways.

This court has repeatedly held that in the repair and maintenance of its hard-surfaced highways, the State acts in a governmental capacity. Wolfe vs. State, No. 3215, decided May Term, 1938; Spurrell vs. State, No. 2228, decided September Term, 1937; Tivnan vs. State, 9 C. C. R. 495; McGready vs. State, 9 C. C. R. 63; Baumgart vs. State, 8 C. C. R. 220; Bucholz vs. State, 7 C. C. R. 241; Braun vs. State, 6 C. C. R. 104.

It is a rule of general application in this State that in the exercise of its governmental functions, the State is not liable for the negligence of its servants and agents in the absence of a statute making it so liable. City of Chicago vs. Williams, 182 Ill. 135; Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.

Claimants recognize this general rule, but contend that they are entitled to an award on the grounds of equity and good conscience.

In the case of Crabtree vs. State, 7 C. C. R. 207, the question of the right of a claimant to recover on the grounds of equity and good conscience was fully considered, and we there held, page 222, that:

Section four (4) of paragraph six (6) of the Court of Claims Act, which provides as follows, to-wit: The Court of Claims shall have power: “to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contracto and ex delicto, which the State as a sovereign commonwealth, should, in equity and good conscience, discharge and pay”; merely defines the jurisdiction of the court, and does not create a new liability against the State, nor increase or enlarge any existing liability; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable; that this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the court; that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.”

The decision in the Crabtree case has been adhered to and followed in numerous cases decided since that time.

Claimants are familiar with the rule as set forth in the Crabtree case, but say that since the decision in that case “the trend of social justice (equity and good conscience) has become far more pronounced each year, ’ and that all questions involving social justice are now far more liberally considered than five years ago, and that each year there has been increased liberality shown and more advancement in all phases of this important question.

The question here involved, however, is not a question of social justice, but a question of legal right; a question as to whether the claimants would have a legal right to recover against the State if the State were suable. As above stated, the State in the exercise of its governmental functions, is not liable under the doctrine of respondeat superior, and therefore claimants could have no legal right of action against the State if it were suable, and, as stated in the Crabtree case, “unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the provisions of equity and good conscience to secure such an award.”

In support of their assertion that all questions involving social justice are now more liberally considered than they were a few years ago, claimants state: 1 ‘ The Legislature of this State recently passed acts appropriating many thousands of dollars as a gratuity, to the widows of various judges who died before the expiration of their terms, each of whom received a handsome salary for his services,” and suggest that such action was prompted solely by a sense of duty, and to do social justice to such widows.

Whatever may have been the motive which prompted the legislative action referred to, such action can have no effect on our decision in this case. We can only apply the law as enacted by the Legislature, and have no right to attempt to legislate by judicial decision. Should the Legislature enact legislation which will authorize us to allow an award in this case, we will be only too happy to make such award.

The claimants also maintain that a distinction should be made between cases involving negligence and cases involving wilful and wanton misconduct, and that in cases where damages result from the wilful and wanton misconduct of a servant or agent of the State, an award should be allowed. There are several cases in the Reports, in which an exception to the general rule, was recognized in cases involving wilful and wanton misconduct, and in the case of Cavender vs. State, 7 C. C. R. 199, and Miller vs. State, 7 C. C. R. 129, in which the facts were similar to the case at bar, awards were allowed on the basis of such exception.

However, since the decisions in such cases, the question as to whether an exception to the general rule should be recognized in cases involving gross negligence or wilful and wanton misconduct, was squarely before the court in the following cases, to wit: Garbutt vs. State, No. 2246, decided September Term, 1937; Durkiewicz vs. State, No. 2484, decided September Term, 1937; Stanley, Admx. vs. State, No. 2697, decided November Term, 1937; and Sale, Admx. vs. State, No. 3258, decided September Term, 1938.

Upon a careful consideration of the question in the cases cited, we concluded that there was no basis for a distinction between cases involving ordinary negligence, and cases involving gross negligence or wilful and wanton misconduct, and in each of such cases we held that there was no liability on the part of the State; that liability, if any, was on the part of the negligent employee, and not upon the State. In the Gfarbutt case, supra, we said:

“If the State is not liable for the ordinary negligence of its servants and agents, there is no principle of law under which it can be held liable for the gross or wanton negligence of such servants and agents, in the absence of a statute making it so liable. The purported exception has no basis in law, and is no longer recognized by this court.”

This may seem a harsh rule in a case like this, which involves a permanent injury to a child of tender years, but we do not make the law and can only apply it as we find it, and if any change is to be made therein, it must come through the Legislature and not through the courts.

Under the law as above set forth we have no authority to allow an award, and the motion of the Attorney General must therefore be sustained.

Motion to dismiss allowed. Case dismissed.

Supplemental Opinion on Petition fob Reheabing.

Me. Chief Justice Hollebich

delivered the opinion of the court:

This case again comes before the court on claimants ’ petition for rehearing.

The attention of the court is particularly directed to the case of The People Ex Rel. McDavid vs. Barrett, Auditor, etc., 370 Ill. 478, also to a recent Act of the Legislature of this State entitled “An Act Concerning Damages Caused by Escaped Inmates of Charitable Institutions Over Which the State Has Control,” Session Laws 1935, page 255.

The McDavid case and two other cases consolidated therewith, involved the constitutionality of appropriations made by the Legislature for the benefit of the widows of certain Circuit Judges. The question involved was whether the appropriations were made for a public purpose, or whether the same were made for a private purpose, in violation of Section 20 of Article 4 of the Constitution. After fully considering the matter, the Supreme Court said:

“Our conclusion is that the appropriations in controversy are of a public nature, enhancing the general welfare and are therefore valid.”

There is nothing in that case which in any way affects the issues here involved. The only question involved in that case was the authority of the Legislature to make certain appropriations. The court held that the Legislature had such authority, and sustained the provisions of the Act. The jurisdiction of the Court of Claims or its right to enter an award was not involved or considered. That the Legislature has the authority to make an appropriation to the claimant in this case, if it sees fit to do so, there can he no doubt. However, this court has only such jurisdiction as the Legislature has conferred upon it, and under existing statutes, as construed by this court, we have no authority to allow an award under the facts in this case.

The provisions of the aforementioned Act of the General Assembly relative to damages caused by escaped inmates of certain charitable institutions, are as follows:

“Whenever a claim is filed with the Department of Public Welfare for payment of damages to property, or for damages resulting from property being stolen, heretofore or hereafter caused by an inmate who has escaped from a charitable institution over which the State of Illinois has control while he was at liberty after his escape, the Department of Public Welfare shall conduct an investigation to determine the cause, nature and extent of the damages inflicted and if it be found after investigation that the damage was caused by one who had been an inmate of such institution and had escaped, the said department may recommend to the Court of Claims that an award be made to the injured party, and the Court of Claims shall have power to hear and determine such claims.”

■Such Act merely provides, under certain circumstances, for an investigation by the Department of Public Welfare. If it is found, as the result of such investigation, that damage has been caused by an escaped inmate of a State charitable institution, the Department may recommend to the Court of Claims that an award be made to the injured party, and the Court of Claims is given specific power to hear and determine such claims.

Such Act has no direct bearing on the question here involved. Inferentially, however, it is an argument against the claimant, as it must have been considered that in the absence of such legislation, the Court of Claims had no jurisdiction to act on such claims; — otherwise it would not have been necessary to provide therein that “the Court of Claims shall have power to hear and determine such claims.”

The other matters set. forth in the petition for rehearing were fully considered by the court on the original hearing. There is nothing in the petition for rehearing which causes us to change our views as expressed in the original opinion, and the petition for rehearing is therefore denied.


text:
    (No. 3345
    Edith F. Edward, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 11, 1939.

      Rehearing denied June 14, 1939.

    Charles M. Haft, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion, of the court:

Claimant herein represents that in July, 1934 the City of Chicago relinquished to the State of Illinois, control of a portion of North Clark Street lying immediately south of Devon Avenue, upon a part of which the property of claimant fronted, and that the State of Illinois thereupon proceeded to widen the roadway of North Clark Street and to repave the roadway as widened. That about the 1st of October, 1934 respondent removed a portion of the side and tore up a portion of the pavement in front of claimant’s property on North Clark Street and Devon Avenue, and that thereafter permitted the sidewalk and the roadway to be so torn up that neither could be used for traffic and failed and neglected to pave the roadway on Clark Street and on Devon Avenue until the early part of 1935, so that claimant’s property was not accessible from Clark Street or from a portion of Devon Avenue except in a limited manner and this only for pedestrian traffic. Claimant represents that the premises in question were improved with a two-story building rented for store and office purposes by tenants "who would have continued to pay rental therefor if accessibility thereto had continued; that by reason of the delayed repairs, entrance to and from the premises was so interfered with that claimant’s tenants complained of loss of business, and claimant was obliged to decrease her rentals and thereby suffered a loss of $12,000.00 in rentals.

Claimant also contends that in the course of said construction work respondent removed and destroyed four ornamental light posts with wiring and conduits, which claimant had installed at an expense of $800.00 which became a total loss to claimant and for which it asks an award in said sum.

A motion has been filed by the Attorney General to dismiss the complaint as failing to state a valid basis for an award, for the reason:

(a) That respondent is not liable for damages resulting from temporary inconvenience in the use and occupancy of property occasioned by the construction of a public improvement.
(b) That the respondent is not liable for damages occasioned by the misfeasance or negligence of its officers, agents, servants or employees or of persons under contract with respondent.

The Bill of Particulars attached to the complaint .varies from the recital in the latter, by stating that the loss of lampposts was “by destruction by contractor.” Any loss due to acts of such contractor would not authorize an award for damages against the State. (Siekman vs. State, No. 3027, Court of Claims, decided March 25, 1938. Parker vs. State, 6 C. C. R. 71.)

The constitutional provision, against taking or damaging private property without just compensation, (Section 13, Article II of the Illinois Constitution, 1870) does not entitle an abutting property owner to compensation or damages for inconvenience, expense, loss of business or rentals, resulting from the temporary obstruction of the street and interference with egress or ingress, incidental to the construction of a public improvement. (Osgood vs. City of Chicago, 154 Ill. 194; Transportation Co. vs. City of Chicago, 99 U. S. 635; Lefkovitz vs. City of Chicago, 238 Ill. 23; Chicago Flour Co. vs. City of Chicago, 243 Ill. 268.)

It is somewhat difficult to determine how long a construction period may cover and still be classified as a temporary condition, but “temporary” is definitely distinguished from the word “permanent.” So far as it appears from the complaint herein, access to claimant’s property was not permanently closed, and when the construction work was finished full accessibility was again existent.

In the case of Chicago Flour Company vs. City of Chicago, 243 Ill. 268, plaintiff sued the city to recover damages which it sustained as the result of being deprived of the use of a certain switch track during a construction period. The Supreme Court in considering the matter said,

“The only invasion of their rights complained of, is the temporary interference with the ordinary means of access to and egress from their property during the progress of the work. It is well settled that inconvenience, expense or loss of business occasioned to abutting owners by the temporary obstruction of a public street, and the consequent interference with their right of access to their property, made necessary by the construction of a public improvement, gives no cause of action against the municipality. The Constitution provides no remedy for' the property owner under such circumstances. Such claim is not damage to property not taken, within the meaning of the Constitution.”
Lefkovitz vs. City of Chicago, 238 Ill. 23;
Osgood vs. City of Chicago, 154 id. 194;
Northern Transportation Co. vs. City of Chicago, 99 U. S. 835.
Lord vs. City of Chicago, 274 Ill. 313.

No sufficient legal cause for an award appears in the complaint, and the motion of the respondent is hereby allowed, and the claim is hereby dismissed.