text:
    (No. 1234
    Mildred Alma Chumbler, Administratrix of the Estate of Lynn Chumbler, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

      Rehearing denied March 28, 1929.

    Sims, Welch, Godman & Stransky, for claimant.
    Oscar E. Caklstrom, Attorney General; Frank ft. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

On September 11, 1926, Lynn Chumbler was hauling a truck loaded with lumber along State .Route No. 5 between Galena and Elizabeth. In going up a steep grade known as Nolan’s Hill Chumbler lost control of the truck and it rolled backward down the hill.. At the foot of the hill was a fill or embankment about twenty feet high, along which no guard rail or fence had been erected. When the truck reached this fill it went over the embankment and Chumbler was killed in the fall. It is alleged that the failure to erect guards along the fill was the cause of Chumbler’s death, and the claim filed is based on the proposition that it is the duty of the State to construct and maintain all State roads in a safe condition for travel and that it is liable for all damages caused by its failure to do so. With this contention we cannot agree.

In the construction and maintenance of roads the State acts in its governmental capacity, — it is exercising its sovereign powers- — and it does not permit these powers to be questioned by any tribunal. It can only act through its officers and employees, and if these officers perform their duties in a negligent manner the negligence is the negligence of the officers and not of the State. These well known principles of law are so thoroughly established that citation of authorities seems unnecessary. In Kinnare v. City of Chicago, 171 Ill. 332, the rule is announced in the following language at. page 335: ‘ ‘ The State acts in its sovereign capacity, and does not submit its action to the judgment of courts and is not liable for the torts or negligence of its agent’s, and a corporation created by the State as a mere agency for the more efficient exercise of governmental functions is likwise exempted from the obligation to respond in damages, as master, for negligent acts of its servants to the same extent as is the State itself, unless such liability is expressly provided by the statute creating such agency.” See also Cooney v. Town of Hartland, 95 Ill. 516; Jorgensen v. State, 2 Ct. Cl. 134; Braun v. State, No. 1281, decided by this court October 24,1928. The General Assembly has never enacted a law making the State liable for damages caused by the negligent construction of a public road, and this court has no power to make an award for such damages in the absence of such a statute.

The claim is denied and the cause dismissed.

On March 28, 1929, upon petition for rehearing the following additional opinion was filed:

On the 5th day of March, A. D. 1929, claimant filed her petition for a rehearing in this cause. In her petition for a rehearing claimant does not set up any matter which the court did not give due consideration in the original opinion in this case. The court fails to see any legal liability on the part of the defendant in this cause and the petition for a rehearing is therefore denied.


source: Caselaw Access Project

author: Mr. Chief Justice Clarity

license: Public Domain

text:
    (No. 1251
    Standard Oil Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    Babb & Babb and F. E. Packard, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim brought to recover the sum of Eight Thousand Two Hundred and Twenty-five ($8,225.53) — 53/100— Dollars, alleged to be collected by the Secretary of State, Louis L. Emmerson, erroneously during a period beginning1 Dec. 28th, 1922, and ending June 30th, 1923, on account of franchise taxes.

It is contended and it appears to the court that the said payment was made voluntarily and that no protest was made. Therefore it is assumed that the claimant believed that said collection was made within the law.

It is the opinion of the court that this case is controlled by the opinion of this court in the case of George P. Ide & Co., Inc., v. The State of Illinois, No. 1215 which was decided by this court on Oct. 24th, 1928.

In the Ide decision it was held that a claimant had a remedy in the courts of general jurisdiction and from all the facts as shown by the records of the case, both the claimant and the defendant The State of Illinois, must have believed the said collection reasonable and within the law at the time the collection was made, otherwise protest would have been made and claimant would resort to its rights in the courts of general jurisdiction. Therefore this court is of the opinion that if claimant failed to follow its legal remedy as indicated in the Ide case, and consequently cannot come into this court for redress.

If an appropriate action was brought by claimant in a court of general jurisdiction, the rights of the parties would have been adjudicated. The very fact of claimant failing to pursue their remedy in courts of general jurisdiction, would indicate that the Secretary of State was within his authority in making- such collection in so far as the viewpoint of the claimant was concerned. In fact it would appear that claimant rested on the verdict of the Secretary of State and by so doing it is assumed that the Secretary of State was within his rights in making the collection complained of, and it is the opinion of this court that subsequent decisions of courts of general jurisdiction, or changes in statutory requirements should not open the gates of this court to a claimant who failed to follow his remedy at law. The Secretary of State acted according to his best judgment and the failure of claimant to pursue his legal remedy would appear to the court as an admission that they believed the Secretary of State to be right at the time the collection of the franchise tax was exacted.

For the reasons above mentioned and the position of the court in the Ide case above cited, this claim is denied.

It is therefore recommended by this court that this claim be disallowed.


text:
    (No. 1253
    Raymond W. Schultz, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    Luther B. Bratton and Charles W. Kurtz, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears that claimant was injured while employed as a day laborer in the construction of a hard road by the State of Illinois near Morton, Illinois. The injury was sustained on Sept. 9th, 1924. It seemed that claimant was working in due course of employment behind a cement shed when the cement shed started sliding and the claimant was caught under the slide and about two cars of cement were piled on and around him. He was taken to a doctor’s office and it was found that the left leg was broken above and below the knee, the left hip dislocated, the right arm cut above the elbow and the face cut and scratched.

It would appear that claimant suffered a very serious injury, however this case must be considered under the Workmen’s Compensation Act of the State of Illinois. It appears that all the hospital expenses of the claimant were assumed or paid by the State of Illinois.

The Attorney General comes and contends that the measure of damages would he based on fifty per' cent of the permanent loss of the limb in connection with the average daily wages which he was receiving at the time of the injury. It is the opinion of the court that the Attorney General’s contention is according to the precedent of this court.

It is therefore considered that claim be allowed and this court recommends that this claimant be allowed the sum of Nine Hundred Thirteen and 43/100 Dollars.


author: Mr. Jtjstice Leech

text:
    (No. 1258
    L. F. Dannewitz, Administrator of the Estate of Leroy W. Faxon, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    E. O. Leitch and John M. Peeeees, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Jtjstice Leech

delivered the opinion of the court:

The declaration filed in this case on November 8th, 1927, by L. F. Dannewitz, administrator of the estate of Leroy W. Faxon, deceased, alleges that the State of Illinois, on April 21st, 1927, and for a long time prior thereto, in the lifetime of said LeRoy W. Faxon, was possessed of, using, operating and maintaining a public highway in Section 23, Township 37, North Range 6, East of the 3rd Principal Meridian, in the Town of Little Rock, Kendall county, Illinois, and no part of said section traversed by the highway, erected and constructed by the State of Illinois, through said Section 23, is in any incorporated city or village; that a portion of said highway in said Section 23, crosses a stream of water commonly known as “Big Rock Creek,” and that across said Big Rock Creek, and as a part of said highway, the defendant, previous to said date, had erected and constructed a bridge to permit the traveling public, in the use of said highway, to cross said creek; that at a point about 75 feet wést of said bridge and continuing westerly in said Section 23 for a distance of approximately 300 feet, the defendant, in the erection and construction of said road, had excavated and removed the dirt and earth in an upward grade or direction, from and through the brow or bluff of a. steep hill, and thereafter said defendant erected, constructed and laid a concrete or cement road bed of a width of 18 feet on said highway commonly known as “Route No. 18”, that in the erection and construction of said highway in said Section 23, and at a point about 375 feet westerly from the west line of said bridge, the defendant had changed the direction of said road from a straight line to a sharp curve of several degrees, so that said bridge could not be seen west of said 375 foot point; that commencing at the west énd of said bridge and continuing westerly for a distance of about 75 feet, and on each side of said highway, and as a part thereof, the soil surface inclines sharply downward for a distance of about 25 feet toward said creek; that said defendant erected and constructed on said highway, for a distance of about 375 feet just west of said bridge, a road bed of cement or concrete of a width of about 18 feet, for the use of the public; that the defendant on said first mentioned date was the owner and in possession, use and control of lands extending for a distance of about 30 feet on each side of the center of said cement road bed through said Section 23, including said bridge; that commencing on the west line of said bridge and continuing westerly for about 75 feet on each side of said cement road bed and where the soil surface at a distance not exceeding 30 feet from the center of said cement road bed deflects sharply downward towards said creek, as aforesaid, the same on said first mentioned date' and for a long time prior thereto, was, ever since said time has been, and still is, owned, used and controlled and maintained by the defendant as a part of said Route No. 18; that on April 21st, 1927, on each side of said cement road bed, for a distance of'about 375 feet extending- westerly from the west side of said bridge, the defendant negligently failed to provide guards, barriers, warning signs or fences to protect the traveling public against accident, danger or casualty while traveling along said highway; that in, on and along such upwardly graded roadbed through said hill, on said date, the defendant failed to provide sufficient drainage for surface water and melting snows, and by reason thereof, during freezing periods of the weather, the surface water and melting snows, would frequently freeze and cause said cement road bed to be covered with ice, thereby rendering the surface of said cement road bed slippery and dangerous to vehicles used by the public while traveling thereon; that on said day, LeRoy W. Faxton, being then in good physical condition and with no impairment of sight or hearing, was operating and driving an automobile on that part of said highway which traverses said Section 23, traveling in an easterly direction, toward said bridge and some place west of the westerly terminus of said graded portion of said highway and while so traveling thereon, exercising due care and caution for his own safety, and believing said highway to be safe, and secure for traveling purposes, approached said bridge for the purpose of proceeding to his destination, which was supposed to be the City of Aurora, in the State of Illinois; that because of the icy coated surface of said road bed, he became unable to control his automobile so as to remain on the right side of the center of said road bed before reaching' said place on the north side of said highway therein the soil surface deflected downward toward Big Rock Creek, and was unable to check the momentum of said auto in time to return to the beaten path or cement roadbed, but he left said main traveled portion or cement road bed and entered into and upon said deflected or inclined portion thereof and by reason of the speed of his auto, was violently projected, thrown, hurled and launched forward and downward to and into said creek in such a manner as to cause himself and his auto to be submerged therein, and unable, on account of the current of said creek, to release himself from said auto and save himself from further danger, and as a result of said accident-drowned ; that he left a widow, who relinquished her right to administer upon said estate and made application to the County Court of Kendall county, Illinois, for the appointment of plaintiff as such administrator, and letters of administration were duly granted by said court to L. F. Dannewitz, as such administrator on May 6th, 1927; that said LeRoy W. Faxon, was earning from his employment the sum of $250.00 per month.

The demurrer filed by the State of Illinois is sustained as a matter of law.

There are no facts in this case to show how the accident, causing the death of LeRoy Faxon, occurred, — no witness of any kind to the accident. The evidence in the .case discloses that the car was on its right hand side of the road, going in a westerly direction on Route No. 18, and had made the turn around the hill, and then for some cause unknown to anyone, the car commenced to move to the left hand side of the road about seventy-five feet west of the west side of this bridge and hit the culvert and curbing on the left hand side of the road about thirty-one feet west of the left hand side of the bridge and then, traveling said thirty feet to the concrete embankment on the southwest corner of the bridge, and jumping two-thirds of the distance across the bridge, a matter of forty to fifty feet, lighted without turning over in any way. There were no skid marks on the road supposed to have been made by the automobile the deceased was driving, and the road was straight — he had made the turn in the road and was going down hill on a straight road when his car suddenly took to the left curb, jumped over the curb which is ten to twelve inches high and jumped over the embankment forty to fifty feet into the creek. To have gone over this curbing,, with a Ford car and jumping forty to fifty feet over a twenty foot embankment, one would have had to be traveling at a high rate of speed. We realize more completely this year probably than in any former years, since the State has maintained its hard road system, the impossibility of keeping the-road bed cleared of ice. It would be folly and would establish a dangerous precedent to hold the State liable for accidents, which might occur on account of this condition existing.

The claim of the administrator of the estate of LeRoy W. Faxon is accordingly denied.


author: ■ Mr. Chief Justice Clarity

text:
    (No. 1282
    Division of Fire Prevention, Department of Trade and Commerce, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1928.

      Rehearing denied, February 13, 1929.

    John P. Snigg, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   ■ Mr. Chief Justice Clarity

delivered the opinion of the court:

The claimant seeks the order of this court to direct that certain interest money be paid from the general fund into the Fire Prevention fund, it being claimed that certain monies collected remain in the custody of divers State Treasurers of Illinois, and that no interest has been placed to the credit of the Fire Prevention fund.

If is the opinion of this court that under the pleadings in the case, that this court has no jurisdiction to determine in this manner, a controversy between departments.

Therefore, it is considered by the court that the claim be dismissed.

On February 13,1929, upon petition for rehearing the following additional opinion was filed:

This is a case coming on for rehearing, an opinion in same having been filed Dec. 5th, 1928, the claim being denied. After a careful consideration of the petition for rehearing, this court is of the opinion that it is without jurisdiction in this case in the manner and form in which it was presented.

Therefore it is recommended that petition for rehearing be denied.


text:
    Joseph and Mary Soland, 1303; Viola Yonkers, 1304; Bertha Roark, 1305, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    John L. Walker, for claimants.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

The above named claimants are all represented by the same attorney and all the cases are considered jointly by the Attorney General and therefore this court will consider them in one opinion.

This court has heretofore held in similar cases that there is a liability on the part of the State on account of the construction of the viaduct over the Elgin, Joliet and Eastern Railroad where it intersects with Route 23, just east of the City of Joliet, in the County of Will and State of Illinois.

It appears that all three claimants were owners of property adjacent to or near this viaduct and that the viaduct did damage the property.

It appears from the statements of the Attorney General, that the damages of these claimants was fairly shown by a real estate expert and from the evidence of this expert and the statement of the Attorney General in which it appears that the amount of damages would be as follows. And this court is of the opinion and does recommend allowance of the following amounts to the above named claimants in the following manner:

To Joseph and Mary Soland, No. 1303, the court recommends an allowance of Twenty-five Hundred Twenty-five ($2,525.00) Dollars.

To Viola Yonkers, No. 1304, the court recommends an allowance of Fourteen Hundred Forty-five ($1,445.00) Dollars.

To Bertha Roark, No. 1305, the court recommends an allowance of Two Thousand Eighty-five ($2,085.00) Dollars.


author: Mr., Justice Leech

text:
    (No. 1306
    Romella Buck, a Minor, by John Roach, her Guardian, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    John P. Pallissabd, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank ft. Eagle-ton, Assistant Attorney General, for respondent.
   Mr., Justice Leech

delivered the opinion of the court:

The declaration in this case recites that John Roach was appointed guardian of Romella Buck, a minor, and that on behalf of said Romella Buck, he filed this claim ag*ainst the State of Illinois.

It appears from the evidence that Joseph Buck prior to his death was a resident of Martinton, County of Iroquois, State of Illinois and that he was the husband óf Romella Buck; that on the 12th day of December, 1927, and was for a long* time thereto, the said Joseph Buck was employed by the State of Illinois through the Department of Public Works and Buildings, Division of Highways, as a highway maintainer, and was on the said 12th day of December, 1927, engaged in doing certain labor in the line of his duties as an employee of the State of Illinois, under the Department of Public Works and Buildings.

The evidence further shows that the said Joseph Buck was operating a tractor grader along and upon the State highway between Beaverville, Illinois, and Papineau, Illinois, between section twenty-six on said State highway and at a point where the highway crosses the New York Central Lines, known as the Big Four which was operating between Indianapolis, Indiana, and Chicago, Illinois. That one of the passenger trains of said company consisting of a locomotive engine and coaches was being operated by said railroad company and was proceeding in a northwesterly direction along the line of said railroad at a high rate of speed, that Joseph Buck, deceased, was operating the tractor grader in the line of his duty and that while so performing his dnty he was struck with great force and violence by the train operated on said New York Central Lines and was thrown upon the ground sustaining certain mortal wounds and injuries from which wounds the said Joséph Buck died; that said Joseph Buck left surviving him a widow, Bomella Buck, who was a minor at the time of the filing of this declaration. He having left no children surviving him.

The Attorney General files a statement as follows:

“The claimant herein has filed his statement, brief and argument in this cause. In said statement, brief and argument it is the opinion of the respondent that the facts were properly stated, the law properly stated and the law properly applied to the facts.
The claimant was driving a tractor grader. Paragraph 7% of Section 3, Workmen’s Compensation Act, is as follows:
‘Any enterprise in which sharp edged cutting tools, grinders or
implements are used, except.’
The .exception set out in Paragraph 8 of Section 3 relates to farming and the deceased State employee was working on the hard roads and not farming in any manner.
The estate of said deceased State employee, through the cooperation ■ of the interested parties, the Division of Highways and the office of the Attorney General,, received from the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, who operated the train which caused the death of the said employee, Twelve Hundred and Fifty Dollars, which is a proper deduction from the total amount he would be entitled to under the Workmen’s Compensation Law.
The total amount, which this claimant could hope to receive under said Workmen’s Compensation Law, would be Thirty-seven Hundred and Fifty Dollars, and after deducting the amount received from said railway company on account of the death of said claimant herein, he would he entitled to Twenty-five Hundred Dollars from the State of Illinois.
I, therefore, submit this claim to the court for its consideration for such disposition as it cares to make.”

We, therefore, award the said claimant the sum of Twenty- • five Hundred Dollars.


author: Mr. JusTicE Thomas

text:
    (No. 1318
    Charles A. Townley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    Benj. S. DeBoice, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent. •
   Mr. JusTicE Thomas

delivered the opinion of the court:

Claimant was appointed Assistant Commerce Commissioner October 31,1921, and served the State in that capacity until December 1, 1924, at which time he retired from office. The statute fixes the salary of Assistant Commerce Commissioners at $5,000.00 per year, and claimant was paid at that rate until July 1,1923. The-General Assembly of 1923 failed to appropriate sufficient funds to pay the salaries of the Assistant Commerce Commissioners in full for the ensuing two years; and’for the seventeen months from July 1, 1923, to December 1, 1924, claimant was paid only $5,666.61 on his salary, leaving a balance due him of $1,416.61. The salary of claimant having been fixed by statute, the failure of the Legislature to appropriate sufficient funds to meet it did not relieve the State of its legal duty to pay it. Claimant is there-' fore awarded the sum of $1,416.61. •


author: Mr. Justice Leech

text:
    (No. 1336
    Jennie Sanders, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    Charles Dickerson, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The claimant in this case, Jennie Sanders, seeks to recover compensation on account of the death of her son, Captain Howard A. Sanders, who was at and prior to the time of his death in command of a battery of artillery of the Illinois National Guard, federalized and on duty on the day and at the time of his death, and was an officer in command of said military unit some time prior to the accident, causing his almost instant death. The accident occurred at the close of what is commonly known as Defense Day, a day set apart as a day of demonstration throughout the United States for the purpose, of discipline, training and experiment, on September 12, 1924, at a place in the vicinity of Aurora, Illinois, on the State Fair Association premises. Captain Howard A. Sanders was under orders of the Commander in Chief of the military forces of Illinois, and ivas ordered by proper order to proceed with his battery and participate in the Defense Day activities in the City of Aurora, Illinois, and did proceed out with his battery, and at the conclusion of the parade or demonstration, returning to the fair grounds near Aurora, Illinois, where the battery, including horses, material and other equipment were stored, stabled and housed, and while in the act of returning the battery to its proper quarters, riding up and down the battery line superintending" the unloading, directing and moving of men and horses,, mounted at that time upon a spirited horse, and as the records show, in all probability not properly shod and riding upon a cinder path where he had a right to be, and while in the performarme of Ms duties, the horse slipped and by the testimony of one experienced officer, owing partly to the smooth shoeing and the nervous condition of the animal, threw Captain Sanders to the ground and the injuries which he received caused his death within a few hours. At the time of his death, and prior thereto, he .had been supporting a widowed mother of the age of sixty-three years, and was maintaining a home for her out of his earnings which were in the neighborhood of $250.00 per month, as a bond salesman, he being the only support of his mother, and she having no other means of support or income, or any other member of the family contributing or able to contribute towards her support and maintenance.

A demurrer filed by the State of Illinois, is sustained as a matter of law.

On the grounds of equity and good conscience, we feel that an award is justified in this case, and we accordingly award to claimant the amount to which she would be entitled had her son been employed under the terms of the Workmen’s Compensation Act of this State of Illinois, or the sum of Three Thousand Seven Hundred and Fifty ($3,750.00) Dollars.


author: Mr. Justice Thomas

text:
    (No. 1337
    M. A. Igleheart, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    Carl E. Robinson, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant was employed by the State at the heating and ice plants maintained in connection with the State hospital at Jacksonville. He was required to keep the boilers in the heating plant in repair, clean and change them when necessary, and to run the ice plant in the summer. On February 21, 1927, while preparing to clean the flues of one of the boilers in the heating plant, the ladder on which he was standing fell and threw him to the floor. The fall caused a fracture of his right arm, the ankle and hip of his right leg, and otherwise seriously bruised him. He was taken to the State hospital and treated by the physicians of the institution. As a result of the injuries his right leg is about two inches shorter than it was, and the wrist of his right arm is permanently injured. He left the hospital about the first of April and in a week or so thereafter was assigned to the duty of answering telephone calls at the ice plant. Shortly after that he took pneumonia and was again taken to the hospital. After his recovery from pneumonia he stayed at the hospital at night and answered telephone calls at the ice plant during the day until January 10, 1928, when he was discharged from the service of the State. At the time of the injury he was receiving $120.00 per month and was paid at that rate until the first of April. From April 1, 1927, to the time of his dis.charge he was paid $130.00 per month. He also received his board, lodging and medical treatment from the time of the injury until his discharge.

It is the contention of claimant that he is entitled to recover under the provisions of the Workmen’s Compensation Act. The provisions of that Act apply automatically to the State when it is engaged in any of the enterprises or businesses declared by section 3 thereof to be extra hazardous. The maintenance of a hospital for the insane is not one of such enterprises. But the State may be engaged in one business which is not within the act and in another which is. Paragraph 1 of section 3 declares the erection, maintaining, removing, remodeling, altering or demolishing of any structure to be extra hazardous. We think there can be no question but that a heating plant for such a large institution as the Jacksonville State hospital is a “structure” within the meaning of the Act. If that be true, then claimant is entitled to compensation, for at the time he was injured he was employed in the maintenance of the plant and his injury arose out of and in the course of his employment.

In view of the fact that he is not totally disabled and the State kept him on its payroll after his injury until he drew approximately $1,360.00 and also furnished him with board, lodging and all necessary hospital and physicians’ services, we think $1,200.00 is as much as he should be awarded in a lump sum. • '

It is therefore ordered that claimant be and he is hereby given an award of $1,200.00 to be paid in a lump sum.


text:
    (No. 1354
    Michael Hoffman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    James O. Miller, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The claimant in this case, Michael Hoffman, was the owner of Lots 7, 8, 9, 10, 11, 12, 37, 38, 40, 41 and 42, in the Village of Lenzburg St. Clair county, Illinois, on May 13th, 1924, which said platted lots are a portion of the North West Quarter of the North West Quarter of Section 7, Township 3, South, Range 6, West of the 3rd P. M., in St. Clair county, Illinois, through which said lots, State aid road designated as St. Clair County Route 13, Section 23, is located. Claimant entered into a contract for the right of way, as shown by exhibits on file herein, wherein, he received $1,000.00 for land taken. This claim is for damages to land not taken, caused by the construction of said Highway No. 13, through claimant’s property. No mention was made of damages to land not taken, but claimant says that the authorities promised him that he would be left in good shape, and that there would be no filling in, etc. In putting in the paving, the two ditches, one on each side of claimant’s lots, were both filled np and the water that formerly ran south in them was diverted to follow along: the paving and to the point of lot 12, and then to go through a 12 inch culvert across Second Street, and then along the roadway to the creek. The testimony shows that this culvert was insufficient to take care of the surface water and that it caused it to back up and stand on claimant’s property. There is considerable difference of opinion as to how much water overflows these premises and as to what it would cost in order to bring his lots up to a proper elevation or grade whereby there would not be an overflow when it rains. Some witnesses place an estimate as low as $50.00 as to this cost, and others as high as $2,000.00.

The demurrer filed by the State of Illinois is sustained as a matter of law.

We feel however, that the claimant in this case has been damaged, and that in equity and good conscience the State should" allow him some compensation so that he may make the necessary changes to properly protect his property from the overflow of water, and we accordingly award the claimant the sum of Five Hundred Dollars.


text:
    (No. 1364
    Sangamo Oil Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    Sangamo Oil Company, pro se.
    Oscar E. Oarlstrom, Attorney General; S. S. DuHamel, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant’s demand is for the refund of $269.30 tax alleged to have been paid by it to the Department of Finance upon gasoline that was not taxable.

In the month of September, 1927, claimant purchased 24.095 gallons of gasoline to be sold at its plants, but on account of a “ gas war ’ ’ in its territory it stored said gasoline until the month of February, 1928. On October 10, 1927, claimant made its motor fuel tax report, under oath, to the Department of Finance showing the amount of gasoline purchased, distributed, sold and used during the month of September previous. This report shows: number of gallons received during the month, 24,095; number of gallons sold during the month, 24,095total gallons on which tax is due, 24,095; allowance for evaporation and other losses, 723 gallons ; net gallons subject to tax, 23,372; total tax @ 2 cents per gallon, $467.44. The report is sworn to by W. H. Jones, president of the company, the oath reciting “I swear that the foregoing is a true return of the amount of motor fuel produced, received, used, sold and distributed by the aforesaid distributor during the month stated.” The report also recites that the gasoline sold was delivered by truck to customers at Bethany, La Place and Cisco. Then follows this statement:

“24095 gallons placed in storage until termination of gasoline war in Decatur. Tax is being paid on this gallonage at this time, and during this war we have made arrangements to purchase our gasoline from the Standard Oil Co. and pay them the State tax.”

The report was sent to the Department of Finance with a check for $467.44 in payment of the tax reported due.

Prior to February 24, 1928, claimant sold at retail 10,213 gallons of the gasoline it had stored, leaving 13,882 gallons not sold at the time the gasoline tax was held unconstitutional by the Supreme Court. The foregoing statement is made from the allegations contained in the declaration, no evidence having been introduced' by either claimant or the State.

Claimant alleges that it “inadvertently” reported said 24.095 gallons of gasoline sold when it was in fact in storage, and claims it is entitled to a refund of $269.30, the amount of tax paid on the 13,882 gallons remaining in storage on February 24, 1928.

No plea to the declaration has been filed by the State and, under the rules of this court, the case must be treated as if a general traverse were on file. As stated above, there is no evidence before the court to support the allegations of the declaration. But we think it is clear from the declaration itself that claimant is not entitled to the refund demanded. It is a well established principle of law that one who voluntarily pays money to another cannot maintain an action for its recovery. It clearly appears, we think, that the tax was voluntarily paid. It was paid to comply with the provisions of the Motor Fuel Tax Act, approved June 29, 1927. If claimant thought that law required the payment of a tax on gasoline held in storage and made the payment in that belief, such fact would not entitle it to recover, for it is well settled law in this State that an action to recover money paid under a mistake of law cannot be maintained. It is equally well settled that money paid under a mistake of facts cannot be recovered unless the mistake was mutual. This tax was not paid under a mutual mistake as to the facts. Claimant knew whether or not it had sold the gasoline, the Department of Finance did not. Claimant elected to treat it as having been sold, and so reported to the Department under oath, and it will not now be permitted to say its report was false in order to recover money it might not have been required to pajr had its report been true.

The fact that the Motor Fuel Tax Act was held to be unconstitutional after claimant paid its tax does not give claimant the right to recover the tax paid. One who voluntarily pays a tax cannot maintain an action for its recovery although the law imposing the tax be afterwards held void.

Under no view of the case is claimant entitled to recover and the cause is therefore dismissed.


text:
    (No. 1375
    Ruie Powers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    Carl Choisser, for claimant.
    . Oscar E. Carlstrom, Attorney General; Frank E. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This is a case brought by the claimant Euie Powers, for damages against the State of Illinois by reason of injuries received from a fall when in the course of her duties in the State Hospital for Insane at Jacksonville, Illinois.

The claimant represents that on the 3rd day of January, A. D: 1928, while she was engaged in her duties in the employment of the State Hospital for the Insane at Jacksonville, Illinois, that she was carrying a parcel of butter from the kitchen of said institution to another part of said institution it become necessary for her to pass through the kitchen of said institution and pass near where a large steam meat cooker was located and that the floor near the cooker had been permitted- to become coated with grease and that she slipped and fell severely injuring her back and lower bowels; that upon receipt of the injuries the claimant was taken on a stretcher to the hospital at the institution and remained there for three days, at the expiration of which time she was removed to the Nurses’ Home at Jacksonville, where she remained until the 15th day of January, A. D. 1928, and afterwards taken to her home in Whittington, Franklin county, Illinois.

The claimant further alleges that since she received the injury she has been unable to perform any manual labor and has been prevented from earning any money and has been dependent, for her support and maintenance, upon her relatives.

The evidence shows that the claimant while she was em-played at said institution talked with several persons and they all testified that the claimant had stated to them in various conversations prior to the time of the alleged injury that she had complained of her back hurting and aching. Evidence further shows that X-ray examinations made at the State institution.show that the condition of the claimant’s back after the fall and before she was discharged from the hospital and before she left the employ of the State institution was normal. One of the witnesses testified that the claimant told her that ever since the birth of one of her children her hack and hips hurt.

There is no question but what the claimant received this fall in the line of her duty and in the course of her employment and that she was taken to the hospital where she received treatment and that she was given physical X-ray examinations. There is nothing in the evidence to show that these examinations which she received, showed injury to her back which she complains of; while on the other hand the evidence does show that her hack was found to be in a normal condition.'

The claimant was paid her full salary all the time she was at the institution, including the time she was in the hospital until she was discharged from said hospital as having recovered.

We are of the opinion that the claimant did not receive any permanent injury during the course of her employment at said institution which would fall within the Workmen’s Compensation Law and that she is not entitled to any compensation under said act.

The claim is, therefore, denied and dismissed.


author: Per Curiam:

text:
    (No. 1378
    Charles Lawrence McCorry, and Henry C. Warner, Executor of the Last Will and Testament of Charles McCorry, Deceased, Claimants vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    Henry C. Warner, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank B. Eagle-ton, Assistant Attorney General, for respondent.
   Per Curiam:

This cause coming on to be heard upon motion of claimant that the above .entitled cause be dismissed, without prejudice, and it appearing that there is no reason why said cause should not be dismissed,

It is therefore considered by the court that said cause be and the same is hereby dismissed.


text:
    (No. 1386
    Federal Bridge Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    B. J. Sweatt, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This is a case brought by the Federal Bridge Company, claiming the amount on a certain contract No. 2794, Section 17-B, of $3,354.87; on contract No. 2795, Section 19-B, of $1,796.26, and interest on the above amounts from June 15, 1927 to July 1st, 1929, at the rate of five per cent per annum, $518.69, making a total of $5,669.82. '

It appears from the statement of the Attorney General that “On August 4, 1926, the Department of Public Works and Buildings, Division of Highways of the State of Illinois, took bids at a public letting on certain bridge work to be constructed in LaSalle county, Illinois, on State Bond Issue Boute No. 18, Federal Aid Project No. 88, Sections Nos. 17-B and 20-B, all in said LaSalle County; that claimant submitted a bid on said work on each of said sections and a combination bid on all three sections as per legal notices to contractors, which combination bid of $39,685.00 was the lowest bid submitted at said letting, and was accepted August 4, 1926, by the said Division of Highways; (See Affidavit filed by claimant) that separate contracts in writing were entered into between the claimant and the said Division of Highways. (See affidavit filed by claimant.)

There appears to be no question as to the contractor, the claimant faithfully and fully performing all the duties required of him by the said Division of Highways. It appears that all of this work has not been fully completed, but same not being the fault of said claimant.

Under date of December 14, 1928, a report was received in this case- from Honorable Frank T. Sheets, Chief Highway Engineer, which is as follows:

December 14, 1928.
Court of Claims:
Hon. Oscar E. Carlstrom,
Attorney General Supreme Court Building Springfield, Illinois Dear Sir:
We are returning herewith declaration and exhibit in the above men tioned case, together, with copy of a report received from Mr. Hathaway, Engineer of Construction.
We have checked the several amounts set up in the statement attached to and made a part of the .claim and find some discrepancies, which we have indicated in pencil.
In view of the conditions under which this claim was imposed, we feel that the claimant is justly entitled to a consideration in the amount of $5,669.82.
Very truly yours,
Director.
(Signed) Prank T. Sheets,
Chief Highway Engineer

Claimant has amended his' declaration so as to fully comply with the requests of the Division of Highways. You will note that Mr. Sheets states in his report that, owing to the conditions under which this claim was imposed, he feels that the claimant is justly entitled to a consideration in the amount of $5,669.82. This corresponds to the amount which claimant is asking in his amended declaration and referred to in his said affidavit filed herein.

Claimant took this matter up with the Assistant Attorney General, Roy D. Johnson, who is handling’ the case for the State, and in view of the report filed by Mr. Sheets, it was not deemed necessary to go to the trouble and expense of taking testimony but that all was necessary for record would be that claimant make an affidavit sworn to under oath, stating briefly the facts in the case and the amount claimed, which he has done.

From the statement of the Attorney General and from the report and letter signed by Frank T. Sheets, we hereby award the claimant the sum of $5,669.82.


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    (No. 1420
    Blanche Metcalf, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    Homer B. Harris, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim brought on behalf of the claimant, a widow and minor child of George Metcalf, deceased, who came to his death on July 9th, 1927, while acting in the course of his employment as an attendant at the Lincoln State School and Colony. It appears that on July 8th, 1927, an inmate of the aforesaid institution, William Beesley struck the decedent with a table leg with such force and violence that the decedent died on July 9th, 1927.

As this is a case to be measured only by the Workmen’s Compensation Act of the State of Illinois, the Attorney General makes no objection to the allowance of the claim.

This is a case that appeals to the court under the doctrine of equity and social justice. Where a man in the prime of life was killed in the line of duty without justification, it appears that he had been an efficient employe doing his duties faithfully and efficiently.

Therefore this court recommends that this claimant be allowed in behalf of herself and minor child of the deceased, the sum of Forty-two Hundred and no/100 Dollars ($4,200.00).


author: Mr. Justice Thomas Per Curiám:

text:
    (No. 474
    Honore Palmer and Potter Palmer, Individually and as Executors of and Trustees under the Last Will and Testament of Bertha Honore Palmer, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

      Rehearing denied May 9, 1929.

    Winston, Strawn & Shaw, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

On May 5, 1918, Bertha Honoré Palmer, a resident of Chicago, Illinois, died testate. On July 24,1918, letters testamentary were issued to claimants as executors of her last will by the Probate Court of Cook County. Thereafter proceedings were had, as provided by the Inheritance Tax Act, to determine the amount of inheritance tax due, and on November 4, 1918, the county judge of Cook County made and entered an order fixing the inheritance tax at the sum of $276,509.04. On the same day the order fixing the amount of the tax was entered claimants paid the county treasurer of Cook County $262,683.59, being the amount of the tax found due less the 5% discount allowed by the statute for payment thereof within six months of the death of deceased. After the payment of the tax claimants appealed from the order of the county judge, fixing the amount of tax due to the County Court of Cook County. On October 29, 1920, while this appeal was still pending and undisposed of claimants filed their declaration in this court praying ‘1 that an order may be entered herein finding that no transfer, inheritance tax, or succession taxes were due and payable to the State of Illinois, by reason of the death of Bertha Honoré Palmer, deceased, and that this court enter a further order herein awarding to your petitioners payable out of the treasury of the State of Illinois, the said sum of $262,683.59, together with interest thereon according to law to be computed from the fourth day of November, A. D. 1918, to the date of the repayment of such sum to your petitioners”, etc. The grounds upon which this court was asked to grant the relief prayed for were that under the provisions of the will of deceased no tax was due, that the Inheritance Tax Act was unconstitutional, that the appraiser erred in his findings and report, and the county judge erred in approving the findings and report of the appraiser and fixing any tax as due and payable.

It is apparent that this court acquired no jurisdiction of the cause by the filing of the original declaration. 'The Court of Claims does not have appellate jurisdiction in any case. Neither does it have original jurisdiction to determine whether or not an inheritance tax is due the State, or to fix the amount of such tax that is due. Original jurisdiction in all inheritance tax matters is given to the county judges and county courts.

It is obvious that claimants paid the tax before taking their appeal voluntarily. They were not required to pay it in order to perfect their appeal, there being no provision in the statute requiring the payment of the tax as a condition of the appeal. It is a familiar rule of law that a tax voluntarily paid, though illegal, can not be recovered back. (Davis v. Board of Education, 323 Ill. 269; School of Domestic Arts v. Harding, 331 Ill. 330.) Having paid the tax voluntarily claimants were not entitled to have it returned to them.

The appeal was not finally disposed of until July 27, 1928, on which date an order was entered by the County Court of Cook County fixing the amount of the tax due at $170,699.05. Thereafter, on September 25, 1928, claimants filed their amended declaration asking for an award of $100,519.49, being the amount they claim they paid in excess of the tax finally determined to be due. The order of the county judge entered November 4, 1918, was valid and binding until reversed or modified on appeal, and claimants had no right to demand the return of any of the tax paid under that order until the appeal was disposed of. It was a voluntary payment made for their own benefit, and they cannot be heard to ask for its return on the ground that it was illegally assessed.

The Inheritance Tax Act is a code covering the whole subject of such taxes, — their assessment, payment, and the method of securing the refund of taxes erroneously paid. Sections 8 and 10 of the Act provide the methods of having taxes erroneously paid refunded. If claimants can bring themselves with the provisions of those sections they have a forum where their cause can be heard. This court has no jurisdiction to decide cases provided for by those sections.

The award is therefore denied and the cause dismissed.

On May 9, 1929, upon petition for rehearing the following additional opinion was filed:

Per Curiám:

This cause coming on for rehearing upon petition of claimant filed on April 20, 1929. After argument of counsel, and the court having sufficiently reviewed the matter brought upon said petition and that it appearing that said petition should be denied,

It is therefore considered by the court, that the said petition be, and the same is hereby denied.


text:
    (No. 961
    Bessie Friend and George B. Friend, Executors of the Will of Isaac Friend, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

    SoNNENSCHEIN, BeRKSON, LiATJTMANN & LEVINSON, for ■claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle7 ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

■ Isaac Friend, a resident of Chicago, died testate July 30, 1915, and letters testamentary were issued to claimants September 14, 1915. On January 31, 1916,- the county judge of Cook County entered an order fixing the inheritance tax due from the estate and the tax was paid by the executors. On October 7,1925, the County Court of Cook County entered an order for the reassessment of the taxes under the provisions of Section 25 of the Inheritance Tax Act, and the taxes were reassessed at a lower rate than the original assessment. Claimants then filed this claim for a refund of the excess taxes paid in compliance with the first assessment.

The Inheritance Tax Act is a complete code, and the procedure for the recovery of excess taxes paid and taxes erroneously paid is set forth in sections 8, 10 and 25 of the Act. The application for a refund of such taxes must be made to either the county treasurer of the county or to the State treasurer as the facts in each case warrant. If claimants were entitled to -have a portion of the taxes paid by them refunded, they should have made application therefor to the proper official as provided by the statute. This court has no jurisdiction to hear and determine questions involving inheritance taxes.

The Attorney General has filed a motion to dismiss the case on the ground that on December 15, 1925, the State Treasurer refunded to claimants the excess taxes paid by them for this estate. If that be true, and there is no denial of it by claimants, it would be rank injustice to make them an award, even if this court had the power to do so.

The claim is denied and the cause dismissed.


text:
    Percival B. Coffin, Administrator of the Estate of Delmos Campbell, Deceased, 978; Percival B. Coffin, Administrator of the Estate of Benjamin Anderson, Deceased, 979; Percival B. Coffin, Administrator of the Estate of Herbert Durant, Deceased, 981, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

      Rehearing denied May 9, 1929.

    "Will N. Johnson, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

An opinion was filed May 12, 1927, denying award in each of these cases and dismissing them. On February 7, 1929, the attorney for claimants filed a petition for a rehearing of each case on the grounds of newly discovered evidence. We have examined the alleged new evidence filed in each case, and could not have allowed an award in either of them had this evidence been before the court at the time the cases were disposed of. Bule 30 of this court requires all petitions for a rehearing to be filed within 25 days after the opinion has been filed in the case. The petitions for a rehearing in these cases were not filed until over a year and eight months after the opinion was filed. The petition for rehearing is denied in each case.

On May 9, 1929, upon motion to vacate order heretofore entered the following additional opinion was filed:

Per Curiam: This cause coming on to be heard on motion of claimant to set aside and vacate the order heretofore filed and petition for new trial, and the court having sufficiently reviewed the matter brought upon said motion and petition and that it appearing that motion and petition should be denied, it is

Therefore considered by the court, that the said motion be overruled, and the petition for new trial be denied and the motion is hereby overruled and the petition for new trial is denied.


text:
    (No. 1052
    Arthur G. Wilson, Administrator of the Estate of Delbert Blackburn, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

    Oliver D. Mann and Brown, Hay & Stephens, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The facts in this case show that Delbert Blackburn was a second lieutenant, Company A, 130th Infantry, Danville, Illinois ; that on or about July 19th, 1925, he was on active duty with his company at the Rifle Range at Danville, Illinois, engaged in firing and giving instructions to members of his company; that while firing his rifle recoiled or “kicked” and he received a sharp blow on his right shoulder; that he complained of his shoulder and ceased firing; that he spent the remainder of the day in the rifle pits; that at that time, shoulder pads were not used to protect the shoulder against the recoil or kick of the rifle while firing and there was general complaint of bruised and sore shoulders from the other members who were firing; that he continued to suffer from pain in his right shoulder; that in the latter part of July, 1925, he had same examined and was treated by Dr. Crist and that the shoulder did not respond to treatment under Dr. Crist; that he worked at his regular occupation until the latter part of September, 1925, but thereafter he was unable to work on account of the injured shoulder; that during the early part of-December, 1925, he was examined by Dr. E. E. Howard, who caused Dr. E. G. C. Williams to make an X-ray examination of his shoulder; that on February 16th, 1926, a Board of Officers, consisting of Henry D. Orr, Col. M. C. Surgeon-General, James J. McKinley, Lt. Colonel M. 0. 108th Med. Regiment, and Joseph E. Stettauer, Captain M. C. 108th Med. Regiment, pursuant to special orders No. 18, Par. 4, examined Blackburn and stated in its report that he was “suffering from a cancer (sarcoma) of the right shoulder (scapula) from which he could not recover”; that Delbert Blackburn died February 22nd, 1926, five days after this examination; that he was unmarried, a paperhanger by trade and earned about $25.00 per month; that he left surviving him at the time of his death, his father, Moses Blackburn, his mother, Alice Blackburn, Hiram P. Blackburn, his brother, and Ida May Phillips, his sister, and .that he was the main support of his father and mother who are practically destitute.

In equity and social justice we feel that an award should be made in this case, and we do accordingly award to claimant, Arthur G. Wilson, administrator of the estate of Delbert Blackburn, deceased, the sum which he would be entitled to receive had Delbert Blackburn been employed under the provisions of the Workmen’s Compensation Act of the State of Illinois, or the sum of Three Thousand and no/100 Dollars ($3,000.00).


text:
    (No. 1053
    F. J. DeSale, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

    Thomas P. Sinnett, J. J. Neiger and J. Hays Britton, for claimant. '
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The claimant in this case filed his sworn statement or declaration in the office of the Secretary of State on June 30th, 1926. The facts in the case, as disclosed by the record are substantially as follows: F. J. DeSale owned a Buick automobile ; that on August 8, 1925, he permitted said car to be operated by one A. J. Coyle; that said A. J. Coyle was driving said automobile on State Route No. 5 to Rockford, Illinois, where he was to transact some business for himself and for the owner of the car, F. J. DeSale; that on August 8, 1925, the National Guard of the State of Illinois was in training at the encampment located at Rockford, Illinois; that the headquarters of said unit which was in training at said encampment was in Chicago, Illinois, and that a large army truck was being used by the National Guard in transporting the soldiers and equipment from Chicago to the encampment at Rockford and was using the most direct route or road known as Route No. 5, which was then and there a hard surfaced paved road, 18 feet in width, with a lane for both east and west traffic; that the car of plaintiff was driven by said Coyle westward on said road about 10 miles east of Rockford, Illinois, at about 10:00 or 10:30 P. M. in the night time and was driving said Buick at about the speed of 30 or 35 miles per hour and was in the exercise of all due care and diligence for his own safety and the safety of said automobile; that as said Coyle was driving said automobile of plaintiff along said road, he suddenly came upon a large truck parked on the right lane of said hard road or lane accommodating westward traffic without any lighted lamps visible; that he noticed said object when he was about a distance of 25 feet from it; that at the same time coming from the opposite direction was another car; that on account of the intense darkness the said Coyle was unable to turn to the right of said artillery truck parked on the right lane of said hard road lest he would run into a ditch; that to avoid hitting the object which proved to be an army truck belonging to the State of Illinois and which was being used by the National Guard, he chose to attempt to turn to the left of the said artillery truck; that the automobile coming from the west reached the spot and place at the same time, rendering it impossible for the plaintiff to clear said artillery truck and he ran into and collided against the body of said army truck and as a direct consequence of the collision both doors of the plaintiff’s automobile were knocked off, the body torn from the chassis and crushed and destroyed beyond repair, the crank case was broken, and the frame bent, and was in such condition that it was impossible to repair it; that he salvaged it for the sum of $69.00; that the blue book value of said Buick at that time was $800.00, and that he is therefore entitled to damages in the sum of $731.00.

The evidence offered by the plaintiff herein is not disputed or in any way contradicted. "While there is no legal liability on the part of the State of Illinois to render an award in this case, we feel that in the interests of equity and social justice claimant should receive the amount of damages actually sustained by him, and we do accordingly award to him the sum of Seven Hundred and Thirty-one Dollars ($731.00).


text:
    (No. 1205
    Eli Watkins, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

      Rehearing denied, March 28, 1929.

    Bollo Six, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank B. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

Claimant asks $2,250.00 damages alleged to have been caused by the negligent and wrongful changing of the natural course of Hadley Creek branch and the construction of a grade and bridge in a wrongful and negligent manner adjacent to and across his land by the Division of Highways while improving State Bond Route 36. The contention of claimant is that the change of the channel of the creek and the construction of an inadequate bridge caused claimant’s lands to be flooded and damaged.

Claimant conveyed to the State the right of way for the road across his land, the deed being in evidence. This deed shows it was executed in consideration of $850.00 and the benefits resulting from the maintenance of the road and recites that the State is released “from' any and all damages resulting from said channel changes.” Having released all damages resulting from the change in the channel of the creek he cannot now maintain an action for them.

But if claimant had not released the State from such damages, he could not recover an award for them. His declaration, his evidence and his argument are all on the theory that the Division of Highways was guilty of negligence in changing the channel of the creek and in constructing an inadequate bridge. The question of the liability of the State for the negligent conduct of its officers and agents has frequently been before this court. In the cases of William H. Peterson v. State and J. A. Peterson v. State, opinion filed September 11, 1928, the same question was involved as in this case, and we there said: “It is apparent that the damages claimed are based on the negligence or wrongful conduct of the agents of the State in constructing these roads. The State is never liable for the wrongful conduct or negligence of its officers or agents. In Kinnare v. City of Chicago, 171 Ill. 332, on page 335, our Supreme Court announced that doctrine in the following language: ‘The State acts in its sovereign capacity, and does not submit its action to the judgment of courts and is not liable for the torts or negligence of its agents, and a corporation created by the State as a mere agency for the more efficient exercise of governmental functions is likewise exempted from the obligation to respond in damages, as master, for negligent acts of its servants to the same extent as is the State itself, unless such liability is expressly provided by the statute creating such agency. Town of Waltham v. Kemper, 55 Ill. 346; Elmore v. Drainage Comrs., 135 id. 269; Symonds v. Clay County, 71 id. 355; Town of Odell v. Schroeder, 58 id. 353; Wilcox v. City of Chicago, 107 id. 334; Nagle v. Wakey, 161 id. 387; 15 Am. & Eng. Ency. of Law, p. 1164; 2 Dillon on Mun. Cory., p. 1193.’ The Department of Public Works and Buildings is one of the departments of the State government. The Division of Highways of that department has the construction and maintenance of State roads in its charge. If in the performance of the duties required of them in the construction of a State road the employees commit a wrong whereby the person or property of a citizen is injured the tort is that of the man or men who do the unlawful act, whether they be public officers or not, and cannot be regarded as the act of the State. (Cooney v. Town of Hartland, 95 Ill. 516.) We know of no exception to this rule. In Gibbons v. United States, 8 Wall. 269, the court said, ‘No government has ever held itself liable to individuals for the misfeasance, laches or unauthorized exercise of power by its officers and agents, however gross. ’ In Jorgensen v. State, 2 Ct. Cl. 134, in discussing this question this court said: ‘This proposition of law, so well established, has been consistently followed by this court in the adjudication of all claims that have ever comp before it, and applies with equal force to the cause now on hearing. ’ Many other cases mig’ht be cited announcing the same principle of law, but we deem it unnecessary to do so. It is perfectly clear that neither of the declarations states a cause of action against the State, and unless they do no award can be based upon them.

“Claimants seem to recognize the fact their claims are not legal, for they say ‘they know whatever is allowed them will be allowed out of equity and good conscience. ’ The statute creating the court of claims gives it power to hear and determine all claims and demands, legal and equitable, which the State, as a sovereign commonwealth, should, in equity and .good conscience, discharge and pay. It is plain from the language of this statute that no claim against the State can be allowed by this court unless there is either a legal or equitable obligation of the State to pay it. Before a claimant can have an award against the State he must show 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. Where there is no legal liability equity cannot create one. (10 R. C. L., sec. 132.) Equity is not the court’s sense of moral right; it is not the power of the court to decide a case according to a high standard of abstract right, regardless of the law; it is a complex system of established law. In Murdock Parlor Grate Co. v. Commonwealth, 24 N. E. 855, the Supreme Judicial Court of Massachusetts construed a statute of that state giving the courts of the state jurisdiction of claims against the commonwealth. The statute in question gave the Superior Court ‘jurisdiction of all claims against the commonwealth, whether at law or in equity. ’ It was contended that this language made the state ‘responsible for a tort committed by its servants. ’ In discussing that question, after citing authorities showing the general rule of non-liability of the state for such torts, the court said: ‘The act we are discussing discloses no intention to create against the state a new, and heretofore unrecognized class of liabilities, but only an intention to provide a judicial tribunal where well-recognized existing liabilities can be adjudicated. Where wrongs are done to individuals by those who are the servants of the government, those injured are not remediless, as such persons may be sued as may be other citizens for the torts which they commit. ’ In Schmidt v. State, 1 Ct. Cl. 76, in discussing this question, this court said on page 79: ‘The law creating this commission does not undertake to create a new liability against the State but provides a method by which claims against the State may be heard before this commission, and the claim rejected or an award made in favor of the claimant.’ And on page 80 of the opinion it is further said: “It is our understanding that in the use of the language ‘to determine the same according to the principles of equity and justice’ is meant and used with a legal signification and that this commission has no power to make an award in any case unless the facts show a legal or equitable claim against the State. We do not believe it was the intention of the Legislature to leave it discretionary with the commission to make an award in favor of the claimant regardless of the question as to whether or not he had a legal claim against the State. We are of the opinion further, that it would be an exceedingly dangerous precedent to hold that the commission had any such discretion.” See also Jorgensen v. State, sufra. To give this statute the construction contended for by claimants would result in giving this court power to hold the State liable for the misfeasance and malfeasance of all its officers, the torts of all its servants and agents, and all damages caused by the wrongful exercise of their powers by such officers and agents. We do not believe the Legislature intended any such radical and far reaching change in the law when it enacted the statute creating this court. It follows that the demurrers to the declarations of claimants must be sustained. ’ ’ We deem it unnecessary to cite other cases.

The claim is therefore denied and the cause dismissed.

On March 28,1929, upon petition for rehearing the following additional opinion was filed:

Claimant filed his petition for rehearing in this cause on the 11th day of March, 1929. Claimant’s petition for a rehearing does not set up any matter that was not fully considered by this Court in the original opinion in this cause. Therefore, the petition for rehearing is denied.


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    (No. 1241
    The Caledonia Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

    Deneen, IIealy & Lee, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The Caledonia Company, the claimant, is an Illinois Corporation with its principal office in the State of Illinois at 1624 W. 63rd St., City of Chicago.

The declaration states that the year 1927 had an authorized stock of 50,000 shares of no par value, that the number •of such shares issued and outstanding is 19,000; that the nominal value of no par stock is $25.00, while the market value of each share of such no par stock is $17.00 per share; that on May 14, 1927, the claimant paid to the State of Illinois, for the year following such date of payment, the sum of $2,750.00; that the franchise tax lawfully due on the account of capital stock issued and for the year following said date of payment was $237.50 and that the amount paid exceeded the amount lawfully due the State of Illinois in the sum of $2,262.50.

That the error in computation resulted through no fault of the claimant but from a misstatement made by the claimant in its annual report to the Secretary of State on May 14,1927.

The claimant files its claim in the sum of $2,262.50 stating" that this amount is for excess paid as franchise tax for the year following May 14,1927.

The Attorney General of the State of Illinois files his-answer and consent to an award which is as follows:

“Now comes Oscar E. Carlstrom, Attorney General, answering the claim herein filed, says that upon recommendation of the Secretary of State, the officer to whom the money was paid, consents to an award in this case, and for reason thereof states that the claimant did pay to the Secretary of State as a franchise fee for the year commencing July 1, .1927, the sum óf Two Thousand Seven Hundred and Fifty Dollars ($2,750.00) computed upon the authorized capital stock of claimant, to-wit, 50,000 shares, no par value, at the arbitrary valuation of $100, considered by the statute prior to the amendment of May 12, 1927, as the basis,, for computing franchise fees; that by an emergency Act approved and in force as of May 12, 1927, the computation should have been based upon the issued capital stock of claimant at the value-for which the said corporation did sell the capital stock, to-wit, the sum of seventeen dollars ($17.00) per share, upon 19,000 shares issued, which franchise fee should have been in the sum of Two Hundred Thirty-seven Dollars and Fifty Cents ($237.50); and that, therefore, the sum of Two Thousand Two Hundred Sixty-two Dollars and Fifty Cents ($2,262.50) should be rebated to claimant as paid in error,, which sum was turned into the State Treasury by the Seeretary of State before the said Secretary of State was aware of the facts entitling this claimant to . an award of this amount. ’ ’

This court has held in numerous cases that when the facts show that a franchise tax was paid through an error in computation or where the franchise tax was erroneously paid that the claimant is entitled to a refund of the franchise tax which was in excess legally due the State. It will be found in the opinion filed May 26, 1927, “Joyce Watkins Company, Corporation, claimant, v. The State of Illinois, respondent,” Court of Claims Reports, volume 5,‘‘page 429.

There are numerous other cases to sustain this finding. In view of the answer and consent to an award filed by the Attorney General and in view of numerous cases cited in volume 5 of the Reports of the Court of Claims and as a matter of equity, the court awards the claimant the sum of $2,262.50.


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    (No. 1274
    Roy Bennethum and Clinton Fryer, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

    C. H. Green, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is for $2,332.91 damages claimants allege they suffered by the sale of 44 head of tubercular cows. On December 23, 1922, claimants’ herd of dairy- cows was tested for tuberculosis and was found to be infected with that disease. The cows were branded with the letter “T”, and the herd was quarantined.

When claimants conld not longer sell the milk from their herd they shipped 39 of the branded animals to Chicago and sold them oh December 28, 1925. That was three years after they had been tested and found infected with the disease. This sale netted claimants $1,234.29. They had sold 3 of the cows in January, 1924, and they sold another cow and a bull in June, 1925. These sales all netted claimants $1,377.09 for the 44 animals sold. The award asked is the difference between what they received for the cattle and what they claim was their market value.

The Director of Agriculture appeared before the court in open session and made a statement that he had investigated the facts in this case and recommended that the court allow the claimants the sum of $775.00.

Therefore, on the recommendation of the Director of Agriculture this court recommends to the Legislature, that the claimants be allowed the sum of Seven Hundred and Seventy-five ($775.00) Dollars.


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    (No. 1283
    Martha F. Neighbors, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

    Martha F. Neighbors, pro se.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney G-eneral, for respondent.
   Mr. JusTicE Thomas

delivered the opinion of the court:

Claimant charges in her declaration in this case that on the 27th day of November, 1927, while she was walking on South Second Street in Springfield, Illinois, she was struck by an automobile owned by the State and being driven by an employee of the State. She alleges that as the result of such accident she was injured and incurred bills and items of expense in curing herself of such injuries to the amount of $112.00, and asks to be awarded that sum against the State.

The Attorney General has filed two statements in this cause, to one of which is attached a copy of letter from the Director of Conservation.

In view of those statements filed by the Attorney General including the report from the Director of Conservation, the court believes this to be a meritorious claim.

The court recommends an award to the claimant of $112.00.


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    (No. 1317
    Fred Koehler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

    Feed Koehler, pro se.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears that claimant entered into a contract with the State of Illinois through the Department of Public Works and Buildings whereby he was to clean the debris, weeds and brush off of Cahokia Mound State Park,' an institution owned by the State of Illinois.

It appears that in carrying out his contract he employed one Dan Enright to assist and while Enright was working for him in cleaning of said park, he injured his thumb by scratching same upon a barbwire. .

That subsequent to said injury septic poisoning set in causing a loss of motion in said thumb making it necessary to cut off part of the bone.

That the said Enright filed a petition before the Industrial Commission for a settlement of the injury under the Workmen’s Compensation Act; and that this claimant settled a claim or action of Enright for the sum of $250.00 and it appears that claimant paid Enright $250.00 in3 settlement for same.

It is the opinion of this court that the claimant in undertaking the performance of his contract with the State of Illinois, should be diligent in the matter of insurance against damage or injury sustained by his employees. It would seem that he would be mindful of the hazards of such employment as was considered necessary in carrying out the contract with the State, and consequently it would hardly seem consistent for him to call upon the State of Illinois to respond for a claim growing out of the performance of his end of the contract.

Therefore it is recommended that the claim be dismissed.


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    (No. 1355
    Anna P. Huguelet, Widow of Edward J. Huguelet, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

    Bebda & Peace, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears that claimant, widow of said deceased, presents a cause of action upon petition for rehearing not contemplated when the case was heard.

Upon application of claimant, rehearing was granted, and it does now appear that said deceased was an employee of the State of Illinois, and while in the course of employment, he sustained injuries which caused his death and therefore under the Workmen’s Compensation Act of the State, the widow of said deceased is entitled to recover, as it appears she and one minor child were dependent upon the deceased for a living.

The court believes that the Workmen’s Compensation Act controls and that claimant’s husband sustained injury and lost his life while in the employ of the State and consequently is entitled to recover, measured by the Workmen’s Compensation Act.

Therefore, it is recommended that claimant be allowed the sum of $4,200.00 (Forty-two Hundred and no/100 Dollars).


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    (No. 1383
    Frank Love, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

    Carl Choisser, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The declaration filed, in this case, by Frank Love, the claimant sets forth that he is now and has been for many years past a resident of the City of Quincy, Illinois, and that prior to the first day of March, 1925, the State of Illinois had maintained and operated at the City of Quincy in the State of Illinois an institution known as the Illinois Soldiers’ and Sailors’ Home, established and equipped for the purpose of providing a home for dependent soldiers and sailors, which said institution was established and equipped and maintained by the State of Illinois.

That said institution was under the control and supervision of the Department of Public Welfare of the State of Illinois; that prior to the first day of. March, ,1925, the claimant was employed by the State of Illinois as a servant in and around the institution. That as a part of his duties in such employment he distributed food from the general kitchen to the different cottages in and around said institution by means of a truck which he, the claimant, and two-other servants of the State pushed back and forth over the stone walks owned, maintained and controlled by the State of Illinois.

It is the contention of the claimant that the State of Illinois wrongfully and negligently suffered the stone walks to be and remain in bad repair and said walks became broken and worn, that while the claimant in the performance of his duty and by reason of said defective walks, wrenched his left hand, causing a rupture of the tissues in said hand, resulting' in a total loss of said hand, by reason of said injury, that during the time of said injury the claimant suffered great pain and was hindered from transacting his duties and that he was obliged to lay out divers sums of money endeavoring' to be healed of his injury.

The Attorney General files a statement wherein he sets forth there was a report of the case furnished to him by 0. 0. Smith, Managing Officer of said Sailors’ and Soldiers’’ Home in which he states in part as follows: “In view of the deplorable condition in which this man is or will be later, I recommend that the Court of Claims, if thqy find the State-liable, be liberal as he will be totally incapacitated from performing any manual labor and will be unable to even dress himself because he has lost his other hand in an accident some years ago.”

Assistant Attorney General, Boy D. Johnson, who handled this case for the State recites in his statement that the above statement of Mr. Smith voices his sentiments also.

The court is of the opinion that this is a case where equity, good conscience and social justice should be extended and we, therefore, allow the claim in the sum of $3,000.00.


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    (No. 1391
    Electric Appliance Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

    Edwin 0. Linden, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This is a claim based on an order for the delivery of merchandise dated July 5,1925, and signed by Elmer J. Green of Menard, Illinois, for shipment to the Southern Illinois Penitentiary. The claimant states that shipment of merchandise was made by claimant on July 10th, 1925, at said Southern Illinois Penitentiary at Menard, Illinois, to be’used in the Water Works Plant at said penitentiary. A copy of the invoice is attached to the declaration.

The statement filed by the Attorney General has attached thereto a copy of a letter, marked Exhibit B, signed by Rodney H. Brandon, Director, stating that “I believe this is a just claim and should be allowed”.

We, therefore, award the claimant the sum of $67.30.


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    (No. 1397
    Conn Peoria Co., Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

    Scholes, O’Donnell & Dougherty, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears that claimant was engaged in the business of selling musical instruments and did bargain with and sell musical instruments and supplies to the Illinois School for the Deaf at Jacksonville, Illinois. It is claimed that the musical instruments were sold to this school at a discount of one-third off and that no question has arisen regarding the quality or condition of these instruments. It appears that the price agreed upon was $624.48 and the reason advanced for not paying for these instruments was that there was no appropriation with which to pay the same.

There are no objections on the part of the defendant to the allowance of this claim as it appears that the musical instruments were furnished in the usual manner.

Therefore it is recommended that claimant be allowed the sum of Six Hundred Twenty-four 48/100 ($624.48) Dollars, together with accrued interest making an award Six Hundred Seventy-three 30/100 ($673.30) Dollars.


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    (No. 1398
    Jackson R. Brown, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

    Scholes, O’Connor & Dougherty, for claimant. ■
    Oscar E. Carlstrom, Attorney General, Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

The claimant was employed by the State of Illinois as a State Agent for the Department of Agriculture, Division of Animal Industry in 1923 at a salary of $175.00 per month; that by an Act of the Legislature of the State of Illinois, effective July 1st, 1923, an appropriation went into effect providing for the employment of twelve State agents of the Department of Agriculture, Division of Animal Industry at $2,-400.00 per year. This appropriation was re-enacted by the Legislature of 1925, and that claimant did not participate in this salary until July 1st, 1926. It appears to the court that it was the intention of the Legislature to pay men in the capacity of claimant during the period between July 1st, 1923, and July 1st, 1926, a salary of $200.00 per month, which would be $25.00 per month during that period over what the claimant received, making a total of Nine Hundred ($900.00) Dollars, that would be due the claimant. The claimant makes claim for interest which we do not feel the claimant should be allowed. It further appears that there is nothing in the record that would indicate any failure on the part of claimant in performing the duties of his employment and it did appear that the Legislature intended that claimant should have $200.00 per month for such employment.

Therefore it is recommended that claimant be allowed the sum of Nine Hundred ($900.00) Dollars.


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    (No. 1399
    Louis E. Marbry, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

    S choles, O’Connor & Dougherty, for claimant.
    Oscar E. Qarlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim brought to recover for an additional salary due claimant under an Act of the General Assembly. It appears that claimant was acting as a State Agent, a Tuberculosis Inspector in the Department of Agriculture. In 1923 his salary was $175.00 per month.

The Legislature of 1923 by an Act made an appropriation providing for the employment of twelve State agents at a salary of $2,400.00 per year. The same appropriation was made by the 1925 Legislature and it appears that during this time this claimant as such agent only drew the salary of $175.00 per month. It does not appear plain to this court why this was done. There is nothing in the record to indicate that this agent did not perform his duties faithfully and it would appear that the Legislature desired that an employe of the State in the capacity of claimant should receive the $2,400.00 per annum salary. It further appears from the records in this case that claimant would be entitled to $900.00 if he received the salary indicated by an Act of the Legislature.

Following what this court believes to be the intent of the Legislature they recommend that claimant be allowed the sum of Nine Hundred ($900.00) Dollars.


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    (No. 1405
    County of Will, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

    Hjalmab Behn, for claimant.
    Osoab E. Cablstbom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This is a claim for $31,826.33 filed by Will county, Illinois, for costs and expenses incurred by that county in the prosecution of the case of the People of the State of Illinois v. Charles Shader; Walter Staleshy, alias Wm. Stalkowsky; Charles Duschswski, alias Charles Tamulis, alias Charlie Slim; Bernardo Roa; Robert Torres, alias Robert T. Tjeda; and Gregerio Rizo, alias John Rizo, for the murder of Peter N. Klein, warden at the Illinois State Penitentiary, in the Circuit Court of Will County and in the Supreme Court of the State of Illinois, and for the expenses incurred in the execution of Charles Shader; Walter Staleshy, alias Wm. Stalkowsky, Charles Duschswski, alias Charles Tamulis, alias Charlie Slim; and Bobert Torrez, alias Bobert T. Tjeda, said defendants in said cause having been inmates of the Illinois State Penitentiary at the time of the commission of the said crime of murder.

The Attorney General has filed a statement admitting the amount stated in claimant’s declaration to be correct, and consents to an award in its favor for the sum claimed.

Section 39, chapter 108, Smith-Hurd’s Illinois Bevised Statute 1927, at page 2054, provides that all fees and costs arising from the prosecution of convicts for crimes committed in the penitentiary at Joliet, which the county is now required to pay in like cases, shall be paid by the State.

Under the provision of this statute it is the duty of the State to reimburse the county for the fees, costs and expenses incurred and paid by it in the prosecution and execution of the defendants, and claimant is therefore allowed an award in the sum of $31,826.33.


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    (No. 1406
    Edward G. Freer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

    Edward G. Freer, for pro se.
    Oscar E. Carlstrom, Attorney General; Frank E. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This is a claim filed against the State of Illinois by Edward G. Freer, claimant, setting forth that on or about the 27th day of December, A. D. 1923, he was appointed State Highway Patrol Officer and has been since his employment engaged in said employment for the State of Illinois.

That in pursuance of and carrying out his duties as employee of the State of Illinois he was furnished with a four-cylinder Henderson motorcycle without sidecar for use in said employment.

The claimant further avers that on the 28th day of June, A. D. 1925, while in the course of his employment he was “chasing three men in a stolen car” between Plainfield and Aurora, Illinois; that he was struck by a car crossing the highway, throwing him from his motorcycle thereby fracturing the metacarpal index finger of his left hand, also cutting and bruising his hand.

The declaration further shows that on or about the 31st day of October, 1925, while the claimant was going to a Justice of the Peace Court as a witness in a case wherein he had made an arrest of a truck driver for driving without lights, his motorcycle skidded throwing him to the slippery pavement breaking his left arm at the elbow from which injury the arm became stiff and is very painful at all times; he also' received cuts and bruises on his face and body.

The declaration further shows that the claimant has paid out divers sums of money for hospital and physicians’ bills.

The statement of the Attorney General filed herein sets out the law in like cases and calls the court’s attention to numerous citations under the Workmen’s Compensation Act which would apply in this case and the Attorney General states that this claimant would be entitled to, in the neighborhood of $1,500.00.

We are of the opinion that this is a case coming squarely within the rules of the Workmen’s Compensation Act, and, therefore, award the claimant the sum of $1,500.00.


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    (No. 855
    Charles Tucker, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 28, 1929.

    Johnson and Pefferle, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim for total disability. It appears that claimant received his injury while in the employ of the State of Illinois. He was. engaged in hauling dirt on State Hard Road No. 36. He was hauling dirt from an excavator operated by the State and while driving up he drove his team into a bank and before he could swing them into place the dirt intended for his load, was dumped upon his neck and back disabling claimant. It appears that claimant had two children under the age of 16 at the time of the injury and was receiving '$7.00. per day wages, $2.00 for the team and $5.00 for his personal services as teamster.

It appears further that claimant was bedfast for a long period of time and that he is disabled on account of the injury to his shoulder and that he is permanently, partially disabled. The Attorney General comes and sets up that “if the' court saw fit to allow any amount in this cause that Fifteen Hundred ($1,500.00) Dollars would be the proper amount.”

The court is of the opinion that the claimant was injured in the course of his employment and that the record in this case indicates a damage to claimant of at least $1,500.00.

Therefore this court recommends that this claimant be allowed the sum of Fifteen Hundred ($1,500.00) Dollars.


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    H. Leet Parsons, 865; Edward Abert, 890; Mrs. James O’Brien, 914; James Ledwith, Susan Ledwith and Clement Ledwith, 932; Richard Hoyt Moore, 940; Wm. Donaldson, 941; J. J. Hill, 942; Clara Still, 949; Joseph Bibo, 950; Martha Hoeft, 951; James M. Langston, 952; Ben F. Bowlby, 954; Chicago Poultry Breeders Ass’n., a Corporation, 894; Julius M. Shreve, 1223; Catherine Hofreiter, 955; John Bibo, Julia Bibo and Anna Bibo, 992; Z. Kerley, 1016; Foreman Trust and Savings Bank, Guardian of the Estate of Allen Williams, a Minor, 1038; William E. Stillwell, 1047; James Warren Lytle, 1059; E. W. Ellis, 1072; Roy H. Browning, 1074; Wm. Carter, 1129; J. A. Stubblefield, 1202; Joseph D. Means, 1239; Glenson Myers, 1252; Clarence C. Cox and Minnie J. Cox, 1291; O. G. Fornhals, et al., 1286; Ray M. Hamilton, 1309; David R. Mitchell, 1315; William C. Carter, 1365; Florence Reider, 1401, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 25, 1929.

    Oscar E. Caelstrom, Attorney General; Frank R.= Eagle-ton, Assistant Attorney General, for respondent.
   Per Curiam:

The above entitled cases come before the court at this time upon the motion of the Attorney General to show cause why the cases should not be dismissed for want of prosecution.

It appears that notice has been given to all of the claimants in the above entitled cases. Since no appearance or response appears upon the record from any of the above named claimants, the court is of the opinion that they are in default. Therefore, it is the order of the court that each and all of the above entitled cases are hereby dismissed for want of prosecution.


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    (No. 927
    Jennie C. Hutchins, Administratrix of the Estate of Herbert Hutchins, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 25, 1929.

    Defbees, Buckingham, Jones & Hoffman, for claimant.
    Oscab E. Cablstbom, Attorney General; Fbank B. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

On the 8th day of October, A. D. 1924, Herbert Hutchins while proceeding along one of the principal highways known as Michigan City Road, between Michigan City, Indiana, and Chicago, Illinois, at a point about one-half mile south and east of the intersection of said Michigan City road and a street known as 147th Street in Cook County, was thrown, from his motorcycle, due to striking a deep hole in the road. He sustained such injuries that he died the same day.

Jennie C. Hutchins, his mother and duly appointed administratrix of his estate has filed a claim of $10,000.00 damages against the State of Illinois. Claimant says that Herbert Hutchins provided the chief means of support for herself, her daughter, Florence Haegerdorn, and two minor grandchildren. And that the deceased came by his death through the negligence of the County Superintendent and the officers of the State Highways of Illinois. That by reason of the death of said Herbert Hutchins the said Jennie C. Hutchins and Florence Haegerdorn have been deprived of their means of support to the damages "of the aforesaid sum.

It has been stipulated and agreed by and between the complainant, Jennie C. Hutchins, administratrix of the estate of Herbert Hutchins, deceased, by Defrees, Buckingham, Jones & Hoffman, her attorneys and the State of Illinois by Oscar E. Carlstrom, Attorney General, that the cause be dismissed.

It is therefore dismissed as per agreement on file.