text:
    (No. 2849
    Van Camp Hardware & Iron Company, Claimant, vs. State of Illinois, Respondent.
    Opinion filed April 28, 1936.

    Brown, Hay & Stephens, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed its complaint herein on February 21st, 1936 to recover the sum of $59.98 for goods and merchandise sold by it to respondent.

It appears from the record that the Division of Highways of the respondent purchased from the claimant certain hardware and other merchandise of a like character, during the period from April 6th, 1934 to June 12th, 1934. It is admitted that the merchandise in question was received by the respondent; that a statement’ therefor was presented to the Division of Highways, and that the same was not paid for the reason that the claim was not presented until after the current appropriation had lapsed.

It has been repeatedly held by this court that where merchandise has been sold to the respondent, and claim therefor was not presented in time for payment out of the current appropriation, an award will be allowed by this court, unless it appears that the claimant has delayed unreasonably in presenting its claim. There is nothing in the record to indicate any unreasonable delay on the part of the claimant in this case, and an award is therefore entered in favor of the claimant for the sum of Fifty-nine Dollars and Ninety-eight Cents ($59.98.)


source: Caselaw Access Project

author: Mr. Justice Tantis

license: Public Domain

text:
    (No. 2817
    The Western Union Telegraph Company, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 28, 1936.

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

delivered the opinion of the court:

This claim was filed Pro Se January 29, 1936 for Fifteen ($15.00) Dollars and was later reduced to Twelve ($12.00) Dollars. Claimant alleges that at the special request of the Division of Highways and upon agreement to pay the usual charges, the former furnished time service for April, May and June, 1935 for four clocks, the value of such service being Twelve ($12.00) Dollars; that said claim remains unpaid for the reason that the appropriation out of which it might have been paid had lapsed before presentation thereof. A report appears from J. M. McCoy, Chief Clerk of the Division of Highways, under date of February 19, 1936, stating that the State received the service in question and that it is indebted to the Company for the amount stated.

“Where it is conceded that claimant legally rendered services and furnished supplies to the State and has not been paid therefor because of the lapse of the appropriation out of which such payment could have been made, and the amount is unquestioned, an award will be made for such services or supplies.”
Journal Printing Co. vs. State, 8 C. C. R. 673.
Schreiber Lbr. Co. vs. State, 8 C. C. R. 381.

A further request for interest has been included, but as interest can be collected only in such instances where payment has been unreasonably and vesatiously delayed, and no such delay appearing in this record, no interest will be included in the award.

The claim is allowed in the sum of Twelve ($12.00) Dollars.


author: Mr. Chiee Justice Hollerich

text:
    (No. 2626
    Marie Piper, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 29, 1936.

    Marie Piper, pro se.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chiee Justice Hollerich

delivered the opinion of the court:

Prior to and on January 28th, 1934, claimant was an employee of the respondent in the office of the Secretary of State, and was working as an elevator operator in the Centennial Building in the City of Springfield, at a salary of $110.00 per month.

On the last mentioned date, claimant slipped and fell while returning from the rest room in said Centennial Building to the elevator, and injured her left elbow, wrist and knee.

It appears from the record that both claimant and respondent were operating under and subject to the provisions of the Workmen’s Compensation Act, and the only question involved is the nature and extent of the injury sustained by the claimant, and the amount of compensation to be paid therefor, if any.

After the accident the condition of claimant’s knee improved, but her wrist continued to pain her more and more from day to day. She continued in her employment to February 27th, 1934, when the pain became so severe that she consulted Dr. Charles L. Patton of Springfield. An X-ray picture of her arm was taken on that date, which showed a fracture of the head of the left radius without displacement of the fragments. The arm was placed in a cast which was finally removed on March 28th, 1934. She was given diathermy treatments from March 29th to April 20th, and on April 20th another X-ray was taken and it was then ascertained that the wrist bone was infected. The arm was placed in a steel brace which was not removed until May 16th, 1934.

Claimant was off duty until July 6th, 1934, but was paid her salary in full from the date of the accident to the date she returned to work on July 6th, as aforesaid. She continued to work until December 12th, 1934, on which date she was taken sick while at work. On leaving her place of work on that date she went to see Dr. Trainor, an osteopath. She states that Dr. Trainor at that time “found two or three vertebrae out in the back of my neck. ’ ’ She remained under the care of Dr. Trainor until December 17th when she resumed work, and continued to work until December 20th, 1934. On that date while at work she took a chill and went home, fever followed, then the flu, resulting, finally in sinus trouble involving both ears. She was treated by Dr. Albert C. Asehauer of Springfield who gave her fifteen or twenty treatments. She claims that she still has the sinus trouble and that the same is the result of the injuries she sustained when she slipped and fell as aforesaid. However, the evidence fails to establish any connection between the injury of January 28th, 1934 and the illness of December 12th, 1934 and thereafter.

Dr. Patton who treated claimant for the injury to her wrist, testified that she now has good motion in her elbow, wrist and shoulder and has hypertrophic arthritis in the small joints of the hand; that there has been a complete healing of the elbow, but that she still has a soreness in her hand from her arthritis.

She incurred expenses for medical, surgical and nursing services and for incidental expenses in connection therewith between the date of the accident and July 6th, 1934, in the total amount of $222.25, and incurred similar expenses between December 6th, 1934 and February 15th, 1935, in the total amount of $50.00.

Claimant was paid her regular wages during all of the time from the date of the accident until the 1st day of January, A. D. 1935, and therefore is not in position to make claim for temporary total compensation. The evidence does not disclose any specific loss nor any partial permanent disability, resulting from the accident in question, for which she is entitled to compensation under the provisions of the Workmen’s Compensation Act, and the claim for compensation for injuries sustained must therefore be denied.

Under the evidence and the provisions of Section 8a of the Compensation Act, claimant is entitled to an award for the medical and surgical expenses, etc. incurred between the date of the accident and the 6th day of July, A. D. 1934, as aforesaid, but not for the expenses incurred by her on and subsequent to December 6th, 1934.

Award is therefore entered in favor of the claimant for the sum of Two Hundred Twenty-two Dollars and Twenty-five Cents ($222.25.)

This award being subject to the provisions of an Act entitled “An Act Making cm Appropriation to Pag Compensation Claims of State Employees and providing for the Method of Payment Thereofapproved July 2d, 1935 (Session Laws of 1935, p. 49), is, by the terms of such Act, subject to the approval of the Governor, and upon such approval, is payable from the General Revenue Fund in the manner provided by such Act.


author: Mr. Chief Justice Hollerioh

text:
    (No. 2555
    Shell Petroleum Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 28, 1936.

    W. W. Yeager, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of the court:

On December 17th, 1934 claimant filed its complaint herein, in which it asks for an award in the amount of $40.29 for merchandise sold and delivered to the respondent. It appears from the record that on numerous occasions during the period from March 27th, 1933 to June 28th, 1933 the claimant sold and delivered to proper officers of the Division of Highways of the respondent gasoline and other merchandise of a similar character; that claimant has filed herein photostatic copies of purchase orders or tickets for each item of merchandise so sold; and that the claim therefor was not presented in time to be paid out of the current appropriation.

No question is raised as to the sale or delivery of the merchandise in question, or as to the reasonableness of the prices charged therefor; it does not appear that claimant has been guilty of any unreasonable delay in presenting its claim; and no reason is suggested why the account should not be paid.

Award is therefore entered in favor of the claimant for the amount claimed, to wit, Forty Dollars and Twenty-nine Cents ($40.29.)


author:
      Per Curiam:

      Per Curiam:

text:
    (No. 2038
    Green & Sons Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 29, 1936.

      Rehearing denied May 12, 1937.

    Michael L. Igoe, A. W. Billing and Cassidy & Knobloch, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Per Curiam:

Claimant filed its complaint herein on December 31st, 1932 and seeks to recover the sum of $75,000.00 as the reasonable value of certain services rendered during the period from November 1st, 1927 to September 1st, 1928, as superintendent of construction on contracts Nos. 5 and 6 of the Illinois Waterway, otherwise known as the retaining wall, lock and dam for the Brandon Road Pool.

Claimant had previously filed its claim herein, to wit, on July 12th, 1928 (Case No. 1339 reported 6 C. C. R. 373) seeking to recover for the services involved in the present claim, but based upon a contract in writing made and entered into by and between said claimant and the respondent, through its Department of Purchases and Construction, which said contract was approved and accepted by said respondent on October 27th, 1927. In its original claim filed on July 12th, 1928 as aforesaid, claimant sought to recover the sum of $50,692.49 for services rendered during the months of November and December, 1927 and from January to July, 1928. Thereafter, pursuant to leave of court, claimant increased the amount of its original claim from $50,692.49 to $78,095.90, the additional sum of $27,403.41 being for similar services claimed to have been rendered during the months of July and August, 1928.

Previous to November, 1927 claimants had entered into a contract with the respondent for the construction of a portion of the Illinois Waterway. About November 1st, 1927 the Department itself took over the construction of the work on such Waterway, pursuant to the provisions of the Illinois Waterway Act hereinafter referred to.

The provisions of the Illinois Waterway Act particularly involved in the claim now under consideration (as well as in the previous claim) are sections 12 and 13 of the Illinois Waterway Act — State Bar Association Revised Statutes 1935 — Chapter 19, Paragraphs 102 and 103, which are as follows, to-wit:

“Sec. 12. In the construction of such waterway, its appurtenances and appliances, the Department of Public Works and Buildings may, in its judgment and discretion, proceed in either of the following ways:
(1) It may let the same or any part or portion thereof to the lowest responsible bidder; or
(2) It may do the same or any part or portion thereof, by the direct employment of services, labor, materials and equipment, and may procure and employ for such purpose the necessary superintendents, agents, office force, laborers, workmen, implements, tools, machinery and all other employees, equipment and services necessary or incidental to such construction.
Sec. 13. Before any contract entailing the expenditure of five thousand dollars or more is entered into, public notice shall be given of the time and place at which proposals shall be received for entering into contracts, which notices shall be previously published for at least once a week for four weeks in two daily newspapers printed in the city of Chicago, in two engineering and contracting journals of general circulation in the United States, and in such other publication as may be deemed proper.”

When the work was taken over by the Department of Purchases and Construction as aforesaid, such Department entered into the aforementioned contract of October 27th, 1927 with the claimant, for the superintendence of the work and the use of its machinery and its equipment in the doing of such work. Such contract provided that the claimant should receive ten per cent (10%) of the “Fee Cost” as therein defined, as compensation for its services as superintendent, and was made without any compliance with the aforementioned provisions of the Illinois Waterway Act with reference to advertising for competitive bids where the amount of the contract is in excess of $5,000.00.

Thereafter a question as to the validity of the contract was raised by the Auditor of Public Accounts, and the matter was submitted to Oscar Carlstrom, then Attorney General, for an opinion thereon. He advised (Attorney General’s Report 1929, p. 227) that the contract was invalid.

Thereafter a public letting was held, and claimant was awarded the contract for the completion of the work on substantially the same terms as the previous contract which had been declared invalid.

The claim originally filed by the claimant on July 12th, 1928 as aforesaid, was for the recovery of the amount claimed to be due it under its aforementioned contract of October 27th, 1927.

The then Attorney General contested the allowance of the claim upon the hearing thereof, this court held — 6 C. C. R. 373 — that the contract in question was in violation of the aforementioned sections of the Waterway Act, and therefore invalid, and refused to allow an award. Petition for rehearing was filed and denied.

Thereafter, to-wit, on December 31st, 1932, claimant filed its aforementioned complaint in this cause to recover the reasonable value of the services rendered by it pursuant to the aforementioned contract of October 27th, 1927.

The present complaint, however, is not based upon the contract, but is based upon the quantum meruit; for the recovery of the reasonable value of the services rendered.

The Attorney General makes the following contentions in this case, to-wit:

1. That the former decision of this court, reported in 6 C. C. R. 373, in which the contract of October 27th, 1927 was held invalid, is res adjudicata and constitutes an absolute bar to the present claim.

2. That even though the former decision of this court is not a bar to the present claim, claimant is not entitled to recover on the quantum meruit for the services rendered.

3. That in any event, this court has no jurisdiction in this case.

We will consider the questions raised by the Attorney General in the order above stated.

I.

The question as to when the doctrine of res adjudicata may be applied has been considered by the courts of this State in many, many cases. The general principles of law with reference thereto seem to be well established, but the application of such principles is not always free from difficulty.

We will refer only to a few of the more recent decisions, as we feel that such decisions set forth the principles of law which must govern us in the determination of the question here involved.

In the case of Hoffmam vs. Hoffman, 330 Ill. 413, the facts were entirely different from the case at bar, but the court had occasion to consider the general principles of law which must govern in cases where a previous adjudication is relied upon as an absolute bar to a subsequent claim. In that case the court, on pages 417 and 418, said:

“Where a former adjudication is relied upon as an absolute bar, there must be, as between the actions, identity of parties, of subject matter and of cause of action. When the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered. Where some controlling fact or question material to the determination of both causes has been adjudicated in the former suit by a court of competent jurisdiction and the same fact or question is again at issue between the same parties, its adjudication in the first cause will, if properly presented, be conclusive of the same question in the later suit, irrespective of the question whether the cause of action is the same in both suits or not. This is sometimes denominated as an estoppel by verdict. (Public Utilities Com. vs. Smith, 298 Ill. 151.) The rule in respect to the conclusiveness of the verdict and former trial between the same parties, when the judgment is used in pleading as a technical estoppel or is relied on by way of evidence as conclusive per se, is, that it must appear by the record of the prior suit that the particular controversy sought to be construed was necessarily tried and determined — that is, if the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter it will be considered as having settled that matter as to all further actions between the parties; and further, in cases where the record does not show that the matter was necessarily and directly found by the jury, evidence aliunde consistent with the record may be received to prove the fact. But even where it appears from the intrinsic evidence that the matter was properly within the issue controverted in the present suit, if it be not shown that the verdict and judgment necessarily involved its consideration and determination it will not be concluded. (Sawyer vs. Nelson, 160 Ill. 629; Rhoades vs. City of Metropolis, 144 id. 580; Geary vs. Bangs, 138 id. 77).
“To operate as an estoppel by verdict it is abolutely necessary that there shall have been a finding of a specific fact in the former judgment or record that is material and controlling in that case and also material and controlling in the pending case. It must also conclusively appear that the matter of fact was so in issue that it was necessarily determined by the court rendering the judgment interposed as a bar by reason of such estoppel. If there is any uncertainty on the point that more than one distinct issue of fact is presented to the court the estoppel will not be applied, for the reason that the court may have decided upon one of the other issues of fact.”

In the case of The People vs. Hart, 332 Ill. 467, the court again had occasion to consider this question and quoted with approval the foregoing extract from the opinion in the case of Hoffman vs. Hoffman.

The law as laid down in the two cases just referred to has been followed and applied in numerous cases since that time and must be taken as well settled.

The People vs. C. & E. I. Ry. Co., 336 Ill. 506.
Healea vs. Verne, 343 Ill. 325.
Crowder Seed Co. vs. Ind. Com., 347 Ill. 86.
Harding Co. vs. Harding, 352 Ill. 417.
Coon vs. McGrath, 273 Ill. App. 300.

The question involved in the original claim was as to the validity of the contract of October 27th, 1927, and the court there held that the contract was invalid. So far as the question of the validity of the contract is concerned, the previous decision of this court is res adjudieata, and is an absolute bar to any further proceedings on such contract.

In the present claim, however, claimant does not base its right to recover upon the contract in question, but seeks to recover on the quantum meruit, independent of the contract. The contention of the claimant in this case is simply this: Conceding that the contract in question is invalid, nevertheless the respondent has received the benefit of the services rendered, and we are therefore entitled to recover the reasonable value of such services.

The question as to the right of the claimant to recover for the services rendered on the quantum meruit was not raised, considered or decided upon the original hearing. The only question there raised or considered was the question as to the validity of the contract. No question having been raised or considered by theo court regarding the right of the claimant to recover on the qucmtum meruit, it cannot now be contended that plaintiff is barred from asserting such claim by the previous decision of this court.

II.

Is the claimant entitled to recover on the quantum meruit, for the reasonable value of services rendered pursuant to a contract which has heretofore been declared to be in violation of Sections 12 and 13 of the Illinois Waterway Act and therefore invalid?

The question has been very ably and thoroughly presented by counsel for claimant who have cited a large number of decisions in support of their contention, all but two of which, however, are decisions of courts of other jurisdictions.

Much confusion has arisen in decided cases on account of the failure to distinguish between two general classes of cases, to wit: 1) Those involving contracts which although irregular, are within the authority of the political subdivision to make; and 2) Those involving contracts which are either in excess of certain limited powers of such political subdivision, or are against public policy, or are in violation of mandatory provisions of law.

In the consideration of this case, two outstanding facts must constantly be kept in mind, to wit:

1. The authority of the Department to construct the Illinois Waterway is limited by Section 12 of the Waterway Act to two methods of procedure, to wit, either by contract to the lowest responsible bidder, or by the direct employment of services, labor, machinery, etc.

2. Section 13 of the Waterway Act requires that before cmy contract involving the expenditure of $5,000.00 or more is entered into, public notice of the proposed letting shall be advertised as set forth in the Act.

The legal effect of a contract made in violation of mandatory provisions of law, is set forth in an annotation appearing in 84 A. L. R., page 954, as follows:

“By the weight of authority, where by statute, charter, or constitutional provision, the power of a municipality, or other political subdivision, to make a contract, is limited, particularly where it is limited to a certain mode or manner of contracting, and any other manner of entering into a contract, and any other manner of entering into a contract or obligation is expressly or impliedly forbidden, tno implied liability arises against a municipality for benefits received under a contract entered into in violation of those mandatory provisions, for no liability can result as a matter of implication where the express provisions of the statute or Constitution negative its existence.

The legal effect of a requirement that public notice of the letting be given, and that the contract be let to the lowest bidder is set forth in 19 R. C. L. p. 1068, Section 856, as follows:

“A statutory provision that all contracts of a municipal corporation above a certain amount shall be advertised in a designated manner and awarded to the lowest bidder is mandatory, and a contract of the designated amount cannot lawfully be made by a municipal corporation in any other way. If the municipal authorities disregard the statute and fail to publish the advertisement as required by law, or award the contract to other than the lowest bidder, a taxpayer of the municipality may have their action enjoined, and the contract although duly executed and signed, cannot be enforced by the other party thereto. Nor can recovery be had on a quantum meruit.”

The question under consideration has arisen in practically every State in the Union, and the decisions of the different States, and in many cases the decisions of the different courts of the same State are not entirely in harmony. The authorities on the question are reviewed in an exhaustive annotation to the case of Johnson County Savings Bank, et al. vs. City of Creston, (212 Iowa 929) reported in 84 A. L. R. 926, in which case the facts were quite similar to the present case.

In that case suit was commenced by a paving contractor and its assignee against the City of Crestón to recover the contract price for repairing certain pavements. Code provisions required that all contracts for street improvements be let to the lowest bidder after publication as set forth in the Code. No publication was made and it was contended that the contract was illegal. Plaintiffs then amended by adding another count in which they sought to recover the equivalent of the contract price as the reasonable value of the labor and material furnished. In that case the court said:

“The statute is peremptory that, “All contracts for the construction or repair of street improvements and for sewers shall he let in the name of the city to the lowest bidder by sealed proposals upon giving” prescribed notice. The statute is a prohibition upon letting such contracts in any other mode. * * * The city undertook to have the repairs in question made by contract. Having undertaken to have them made by contract, it was required to let the contract on competitive bidding. * * * It is a general principle that a municipal contract entered into in violation of a mandatory statute, or a contract in opposition to public policy, is not merely voidable but void * * * and that no contract for services rendered or goods furnished pursuant thereto can be implied, nor may the acceptance of benefits thereunder be made the basis of a liability by estoppel. * * * A municipal contract let without competitive bidding, when the statute requires competitive bidding, is void, and no recovery may be had either upon the purported express contract or upon an implied contract to pay the reasonable value of the services or material furnished thereunder. * * * Manifestly the making of a contract may not be implied in a case in which an express contract is forbidden. * * *
“To sustain the plaintiff’s contention would be to permit one to obtain from a municipality an illegal contract for doing work impossible of return and by performing it enable him to recover the reasonable value of the services and materials furnished — to nullify the law by evasion and indirection and to recover the value of the work done under a contract which the law prohibits.”

The aforementioned annotation reviews eases from many States, some of which are cited by counsel for claimant. The decisions of our Supreme Court are in accordance with the weight of authority as set forth in such annotation, and inasmuch as our courts have passed upon the question, it will not be necessary to rely upon the decisions of the courts of other States. Some of the early cases in this State seem to support the contention of the claimant, but some of such cases have been expressly repudiated by the Supreme Court in the case of DeKam vs. City of Streator, hereinafter referred to; others have been impliedly overruled by such decisions; and still others, upon careful analysis are distinguishable upon the facts from the later cases. In any event, if there is now any conflict between the earlier and the later decisions of our Supreme Court, the later decisions are controlling and must be taken to be the law of this State.

In the case of Hope vs. City of Alton, 214 Ill. 102, the city had adopted an ordinance creating a legal department, which provided for a corporation counsel, and also provided that the city should not be liable in any case for the services of any attorney except the corporation counsel. Thereafter the counsel passed a resolution authorizing the employment of a certain attorney other than the corporation counsel, in connection with a number of damage suits then pending. Such attorney rendered legal services in such cases and afterwards commenced suit against the city to recover the value thereof. In that case the court held that the ordinance had the effect of a law within the corporate limits, that the contract made by the City Council was prohibited by such law and therefore void, and that the city was not estopped from denying its liability thereon by reason of the fact that it had received the benefit of the services rendered. In the course of its' opinion the court said:

“Counsel say, however, that plaintiff might recover on the ground that when a city has power to make a contract in one way and exercises the power in a different mode, it will he estopped from setting up the illegal exercise of power when called upon to pay for what it has received under the contract. In other words, the proposition is that when a city gets what it had authority to get in some way, it should pay for what it gets, whether it exercised the power in the prescribed way or not. The obvious answer is, that this contract was prohibited by a valid ordinance, and that the City Council had no right' to make it in some other way or by some other method. The City Council had no authority, by any. method or process, to agree that the city should pay for legal services to be rendered by the plaintiff, who was neither city attorney nor corporation counsel. The ordinance prohibiting such a contract was in full force and effect, and its operation as a law was in no manner affected by the resolutions. People vs. Latham, 203 Ill. 9.
“It is further contended that the city is estopped to deny its liability by the acts of the city council and its officers. The doctrine of ultra vires is applied with greater strictness to municipal bodies than to private corporations. (1 Smith on Mun. Corp. Sec. 661.) Persons dealing with a municipal corporation are chargeable with notice of its powers to contract, and plaintiff was chargeable with notice of the ordinance in question. A municipal corporation is not estopped from denying the validity of a contract when there was no authority for making it. To hold otherwise would be to expose the taxpayer to all the evils which statutes or ordinances passed for his protection were designed to prevent. Cases where municipal corporations have been held to be estopped when acting in a private capacity in the performance of duties enjoined upon them are not in point in this case, both because the city had performed the duty by providing a law department, with officers to discharge its duties, and also because the contract was directly prohibited by the ordinance.”

In the case of May vs. City of Chicago, 222 Ill. 595, one of the clerks in the Collector’s Office was asked to do extra work after his regular office hours under a promise that he would be paid for the same. The services were rendered and suit was commenced to recover the value thereof. No appropriation had been made for the payment of extra wages and the court held that no valid contract could be made in the absence of a previous appropriation, and that in the absence of such appropriation it was impossible by any act of the city officials to create a liability against the city for such services. In arriving at its conclusion the court, on page 599, said:

“It is contended that the city was bound by the city collector’s promise .to pay for the extra work. Section 91 of the City and Village Act (Hurd’s Stat. 1905, p. 308,) provides that no contract shall be made by the city council or any committee or member, and no expense incurred by any of the officers or departments of the corporation, unless an appropriation shall have been previously made. No appropriation having been made for this extra work of the plaintiff, it is impossible by any act of the city officials to create a liability against the city for the work. * * * A person dealing with a municipal corporation is charged with the knowledge of the limitations of the power of that corporation for any contract attempts to be entered into by any of its officials.”

The same question was raised and the same conclusion reached in the case of Gathemann vs. City of Chicago, 263 Ill. 292.

The question here involved was very thoroughly considered by our Supreme Court in the case of DeKam vs. City of Streator, 316 Ill. 123. The complainants in that case filed their bill against the City of Streator to restrain such city and its officers from paying further money to one Gr. L. Clausen, pursuant to the terms of certain contracts theretofore made between the city and Clausen whereby he undertook to design a sewer system for the city. No appropriation had previously been made by the City Council for the payment of such work.

Upon completion of the work Clausen presented to the Board of Local Improvements his bill for his services amounting to $34,263.00, of which he had previously been paid $3,000.00. Thereafter the Council ordered payment of the bill. In that case the court held that the contract was void because it was prohibited by law, and in consideration of the questions there involved, said:

“A contract expressly prohibited by a valid statute is void. This proposition has no exception, for the law cannot at the same time prohibit a contract and enforce it. The prohibition of the Legislature cannot be disregarded by the courts. * * *
“In many other cases contracts not prohibited by the express words of a statute but in violation of its terms have been held void, and it is a well established rule that where, from a consideration of all the provisions of the statute, the legislative intention clearly appears to declare an act unlawful no contract for the performance of that act can be enforced, and the rule applies to a contract to do an act contrary to the public policy of the State. * * *
“In the absence of an appropriation there was no liability, and if it should be held that there was a liability, the provision which the statute intended for the protection of taxpayers would be nugatory and of no avail.”

In the consideration of such case the Supreme Court discussed the case of Village of Harvey vs. Wilson, 79 Ill. App. 544, and the case of Westbrook vs. Middlecoff, 99 Ill. App. 327, in which the Appellate Court had taken a contrary view, and held that such cases had been erroneously decided. In speaking of the decision of the Appellate Court in the Middlecoff case, the Supreme Court in the DeKam case said:

“The opinion is based on the theory that the statute authorized the city to contract for the erection of the building, and, as we have seen, the statute expressly prohibited the city from making the contract. Section 2 of Article 7 of the Cities and Villages Act is not a regulation of the mode in which the city may exercise its power to contract, but is a denial of the power and a prohibition of making any contract unless an appropriation shall have been previously made for the purpose. There was no attempt on the part of the municipal officers to override the regulations for the exercise of a power, but there was an attempt to override the law which prohibits the exercise of the power. The case was erroneously decided, for this error goes to the root of the whole matter.”

In the DeKam case, in speaking- of the question of estoppel in connection with the question there involved, the court said:

“The city cannot be estopped to dispute the validity of a contract which it had no power to make, for the reason that it has received the consideration. “Everyone is presumed to know the extent of the powers of a municipal corporation, and it cannot be estopped to aver its incapacity, which would amount to conferring power to do unauthorized acts simply because it has done them and received the consideration stipulated for. Stevens vs. St. Mary’s Training School, 144 Ill. 336; Hope vs. City of Alton, 214 id. 102; May vs. City of Chicago, 222 id. 595; People vs. Parker, 231 id. 478.” Eastern Illinois Normal School vs. City of Charleston, 271 Ill. 602.”

Upon consideration of the entire case, the court held that “there was no power in the council to do the particular thing because it was not included in the appropriation ordinance, and the power was therefore expressly denied them by statute.”

As we view the present case in the light of the authorities cited, Section 12 of the Waterway Act constitutes an express restriction and limitation on the power of the Department to act and also constitutes an implied prohibition of the right or authority of the Department to act in any way other than that authorized by such section. Section 13 is an express limitation on the right of the Department to enter into a contract without first giving notice of the proposed letting. Both of the aforementioned statutory provisions are for the benefit of the public and must be considered mandatory. Consequently, any contract made in violation thereof is void, and no recovery may be had thereunder, or upon an implied contract to pay for the reasonable value of the services rendered. As stated by the Supreme Court of Iowa in the Johnson County Saving Bank case, the making of a contract may not be implied in a case in which an express contract is forbidden.

An award for the claimant in this case would amount to a nullification of the aforementioned Sections 12 and 13; and would enable the plaintiff to accomplish by evasion and indirection what it was unable to accomplish directly.

We cannot consent to such an interpretation of the law. Under the record and the decisions of our Supreme Court, the claimant is not entitled to recover.

In the light of the conclusion at which we have arrived on this question, it becomes unnecessary to consider the further point urged by the Attorney General to the effect that the court has no jurisdiction of this claim.

Award will be denied and the case dismissed.

Opinion on Rehearing.

Per Curiam:

Claimant filed a petition for rehearing herein, based upon the following grounds, to wit:

1. The court misapprehended the state of the record as respects the pleadings.

2. The court overlooked the fact that Paragraph 2 of Section 12 of the Waterway Act authorizes the Department of Public Works and Buildings to construct waterways by the direct employment of services, labor, materials, and equipment; and in the event the Department proceeds by direct employment, the provisions of Section 13 with reference to the publishing of notice for proposals prior to the letting of the contract, has no application.

We will consider such points in the order above set forth.

I.

The respondent filed no pleadings and under Rule 15 of this court, a general traverse or denial of the facts set forth in the complaint was considered filed.

Counsel for claimant seems to be under the impression that there was no evidence before the court, and that the case was disposed of on the complaint and the general traverse. On page 1 of the petition for rehearing, counsel state: “This court has dismissed the complaint herein without any pleadings having been filed by the respondent and without any evidence having been offered by either party.”

Apparently counsel for claimant are not familiar with the record. This is readily understandable, as the present counsel for the claimant did not appear in the cause until February 12th, 1936numerous other counsel having represented the claimants prior to that date.

A reference to the record shows that on December 31st, 1932 a stipulation of facts was filed herein, the first paragraph of which reads as follows:

“It is hereby stipulated by and between Green & Sons Company, a corporation, claimant, by John P. Loughnane, its attorney, and the State of Illinois, respondent by Oscar E. Carlstrom, Attorney General, that the following is a true and correct statement of facts on which said claim is based.”

The record also shows that on April 28th, 1933 a further stipulation was filed herein, the first paragraph of which reads as follows:

“It is Hereby Stipulated by and between the State of Illinois by Otto Kerner, Attorney General, and Green & Sons Company, claimant, by John P. Loughnane, its Attorney, that the following records and exhibits shall be admitted in evidence in said cause as bearing on issues involved.”

The last mentioned stipulation, with the exhibits attached thereto, comprises 29 typewritten pages. Obviously, there is no merit to claimant’s first contention.

II.

A reading of the opinion will disclose that the court quoted and considered both Sections 12 and 13 of the Illinois Waterway Act.

Attention is called to the following, which appears on pages 6 and 7 of the opinion of the court, to wit:

“In the consideration of this case, two outstanding facts must constantly be kept in mind, to wit:
“1. The authority of the Department to construct the Illinois Waterway is limited by Section 12 of the Waterway Act to two methods of procedure, to wit, either by contract to the lowest responsible bidder, or by the direct employment of services, labor, machinery, etc.
“2. Section 13 of the Waterway Act requires that before any contract involving the expenditure of $5,000.00 or more is entered into, public notice of the proposed letting shall be advertised as set forth in the Act.”

Sections 12 and 13 were enacted for the benefit of the public. If claimant’s contention were upheld it would not be necessary in any case to advertise for bids, or let any contract to the lowest responsible bidder. The Department could take the position that it would do the work by direct employment, and could then arrange for the doing of such work by a favored contractor on a “ cost plus ” or “ fee cost ’ ’ basis; and thereby accomplish just what said Sections 12 and 13 were intended to prevent.

We can see no merit to either point raised by the claimant and petition for rehearing will therefore be denied.


author: Mr. Chief Justice Hollerich

text:
    (No. 2717
    Aluminum Ore Company, a Corporation, Assignee of Franklin Fluorspar Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 3, 1936.

    Kramer, Campbell, Costello & Weichert, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Franklin Fluorspar Company, a foreign corporation authorized to do business in this State, filed its complaint herein on August 17th, 1935, in which it asked for an award in the amount of $709.98, being the amount of the franchise tax paid by said Franklin Fluorspar Company for the year beginning July 1st, 1935.

From the stipulation on file it appears that during the month of February, A. D. 1935, the Franklin Fluorspar Company filed its annual report with the Secretary of State, from which report it appeared that there was due from said Company the sum of $25.52 as additional initial license fee, and the sum of $709.98 as a franchise tax for the year beginning July 1st, 1935; that upon receipt of such report the Secretary of State made an assessment of additional initial license fee and franchise tax in accordance with such report, and forwarded same to said Company; that on May 28th, 1935 said Franklin Fluorspar Company paid to the Secretary of State the sum of $735.50 in payment of the additional initial license fee and franchise tax so assessed against it as aforesaid; that on June 25th, 1935 said Franklin Fluorspar Company executed its application for withdrawal from this State and final report as required by the provisions of the Business Corporation Act, and on June 26th, 1935 filed such application and final report in the office of the Secretary of State; that on said 26th day of June, A. D. 1935, the Secretary of State issued to said Franklin Fluorspar Company a certificate of withdrawal in due form as required by law; that thereupon said Franklin Fluorspar Company ceased to do business in this State and withdrew therefrom; that after the payment of said franchise tax and after the issuance of the aforementioned certificate of withdrawal by the Secretary of State as aforesaid, said Franklin Fluorspar Company requested the Secretary of State to refund to it the sum of $709.98 so paid by it as a franchise tax as aforesaid; that the Secretary of State advised said Franklin Fluorspar Company that he had no authority to refund said tax, and that the only recourse of said Company was to file its claim in this court; that on August 17th, 1935 said Franklin Fluorspar Company filed its claim herein for the recovery of the franchise tax in the amount of $709.98 so paid by it as aforesaid; that on September 4th, 1935 the Franklin Fluorspar Company, being about to dissolve, and desiring to close up its business and dispose of its assets, assigned to Aluminum Ore Company the claim theretofore filed by it against the State of Illinois as aforesaid, together with all of the proceeds arising therefrom; that on September 18th, 1935 the original complaint herein was amended by substituting as claimant the Aluminum Ore Company as Assignee of Franklin Flourspar Company.

Claimant contends that the payment of the franchise tax by the Franklin Flourspar Company on May 28th, 1935 was through inadvertence and mistake on the part of the agent of said company charged with the payment of such tax, and that inasmuch as such tax was for the year commencing July 1st, 1935, and the Company had withdrawn from the State prior to that time, and the Secretary of State had duly issued a certificate of withdrawal prior to that date, it is entitled to a refund of the franchise tax so paid by said Franklin Fluorspar Company as aforesaid.

The Attorney General contends that the claimant is not entitled to such refund and bases his contention on Section 139 of the Business Corporation Act of this State, which provides in part as follows:

“The basis for the annual franchise tax of a foreign corporation shall be the amount represented in this State, determined in accordance with the provisions of this section, of the sum of its stated capital and paid-in surplus on the thirty-first day of December of the preceding calendar year, minus the amount by which the sum of the stated capital and paid-in surplus may have been reduced after the thirty-first day of December of the preceding calendar year and prior to the 25th day of June of the current calendar year, as disclosed by any report or document filed by it with the Secretary of State.”

The Attorney General takes the position that inasmuch as there was no reduction in the amount of the stated capital and paid-in surplus between December 31st, 1934 and June 25th, 1935, claimant is not entitled to a refund.

As we view the matter, the section of the statute referred to by the Attorney General has no application in this case. Such section has reference only to the amount of the tax due in cases where there has been a reduction in the stated capital or paid-in surplus between the dates therein stated, and has no application whatsoever to a case where the question involved is the withdrawal of a corporation from the State.

From the stipulation on file, it clearly appears that the tax in question was for the year commencing July 1st, 1935; that a certificate of withdrawal in due form of law had been properly issued to the Franklin Fluorspar Company prior to said July 1st, 1935; that Franklin Fluorspar Company was not authorized to and was not doing business in this State on or after July 1st, 1935 and was therefore not subject to a franchise tax; that the franchise tax in question was paid by Franklin Fluorspar Company as the result of a mistake of fact on the part of the agent of the Company having charge of its tax matters.

The rule appears to be well established, that where a tax is paid as the result of a mistake of fact, the party paying the tax is entitled to a refund thereof. 21 R. C. L. 164-166; 48 Corpus Juris, 759.

Such rule has been repeatedly recognized and applied by this Court. Moorman Mfg. Co. vs. State, 8 C. C. R. 106; Rossia Insurance Co. vs. State, 8 C. C. R. 203; Bates Valve Bag Corporation vs. State, 7 C. C. R. 64; Black Star Coal Co. vs. State, 6 C. C. R. 379; Importers, Etc. Insurance Co. vs. State, 5 C. C. R. 1; Big Four Wilmington Coal Co. vs. State, 4 C. C. R. 279; Fireman’s Insurance Co. vs. State, 2 C. C. R. 220.

Award is therefore entered in favor of claimant for the sum of $709.98.


text:
    (No. 2653
    Earl Kurtz, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 30, 1936.

    Charles E. Lee, for claimant.
    Otto Kerner, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

From October 1st, 1934 to January 8th, 1935 claimant was employed as an engineer in the Illinois National Guard Armory in the City of Decatur. On the last mentioned date, while in the performance of his duties, claimant slipped and fell, thereby sustaining injuries to his left arm and shoulder, for which he seeks an award in this proceeding.

Prior to the time of his employment by the respondent, claimant worked as a locomotive fireman for the Wabash Railway; but had done very little work for such railway since May 11th, 1932. On March 2d or 3d, 1935 he was called back to work for the railroad, and worked a total of eighteen days in March and April. He stated that he would work a day or two and then lay off, thinking his strength would come back, but the more he worked the worse his condition became.

Claimant 'at the time of the accident was forty-one years of age, and had- two children under the age of sixteen years. The annual earnings of persons in the same class in the same employment and same location, during the year preceding the accident, were $1,344.00; and the average weekly wage was $25.85. On account of the fact that claimant had two children under the age of sixteen years at the time of the accident, the compensation, if any, must be computed at the rate of $15.51 per week.

Claimant filed his complaint herein on April 12th, 1935, and the only question raised by the Attorney General is as to the nature and extent of the injury and the amount of compensation to be paid.

The evidence is very conflicting, but from the facts in the record it appears that claimant is entitled to 23-3/7 weeks ’ compensation at the rate of $15.51 per week for temporary total disability from January 9th, 1935 to July 10th, 1935, (exclusive of the eighteen days on which he worked as aforesaid) ; and in addition thereto is entitled to 33-3/4 weeks’ compensation at the rate of $15.51 per week for loss of 15% of the use of his left arm, to wit, the total sum of $886.84, all of which has accrued prior to this date.

However, claimant was paid his salary in full for the month of January, 1935. Inasmuch as he is not entitled to both salary and compensation for the same period of time, a deduction must be made of the amount of salary paid claimant for the period from January 9th to February 1st, to-wit, $88.00.

Award is therefore entered in favor of the claimant for the sum of Seven Hundred Ninety-eight Dollars and Eighty-four Cents ($798.84).

This award being subject to the provisions of an Act entitled “An Act making an appropriation to pay compensartion claims of State employees cmd providing for the method of payment thereof ”, approved July 2d, 1935 (Session Laws of 1935, p. 49), is, by the terms of such Act, subject to the approval of the Governor, and upon such approval is payable from the General Revenue Fund in the manner provided by such Act.


author: Me. Justice Yantis

text:
    (No. 2780
    Bonita Swafford, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 30, 1936.

    Isaac K. Levy, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Claimant is the surviving widow of one Clifton Swafford who was employed by respondent under the Department of Public Works and Buildings, Division of Highways, as a mud jack foreman in performing repair work on the public highways of Illinois. Said employee began working for the State about February 3, 1933 and continued until the day of his fatal injury, the 12th day of November, 1935. On the latter date while in the course of his labors on Route No. 143 near Harrisburg, Hlinois, he was run into and struck by an automobile driven by one Herman Malone, thereby receiving injuries from which he died the following day.

A stipulation of facts has been entered into between the parties and from same it appears that nothing is to be gained by attempting to determine the liability of Herman Malone, or his financial responsibility for same, as the record shows that he is a coal miner, employed in Saline County at .the Horco mine, owns no property, and was driving an automobile, owned by his brother, for his own individual pleasure and convenience at the time; that neither he nor the owner of the car carried any public liability, and that he is insolvent, and that a judgment against him would be of no value: It further appears that from November 1, 1934 to October 1, 1935 Clifton Swafford received wages of One Hundred Ten ($110.00) Dollars per month and from October 1, 1935 to the date of his death his wages were One Hundred Twenty ($120.00) Dollars per month. He was thirty-two (32) years of age, a resident of the City of Murphysboro, Illinois, and left surviving, his widow, the claimant herein, Bonita Swafford, now thirty-one (31) years of age; Clifton Swafford, Jr., aged eight (8) years at the time of his father’s death; also Helen Swafford, his widowed mother, all of whom were dependent upon him for support and maintenance. Deceased carried two policies of life insurance, one policy naming claimant as the beneficiary and the other naming his mother as beneficiary, each policy being for One Thousand ($1,000.00) Dollars, with double indemnity in case of accidental death; both of which policies are now being collected on.

Claimant seeks an award of Four Thousand Four Hundred Fifty ($4,450.00) Dollars on account óf the death of her husband, together with the sum of Bight ($8.00) Dollars paid by her for medical, surgical and hospital services for the deceased, and also asks reimbursement for Four Hundred Forty One ($441.00) Dollars expended by her for funeral expenses and the Coroner’s inquest.

The record shows that deceased was employed by the State at the time of his death and that the injuries causing same were accidental and arose out of and in the course of his employment. Under the provisions of the Workmen’s Compensation Act and the Court of Claims Act claimant is entitled to an award. The earnings of deceased for the year preceding his death were One Thousand Three Hundred Thirty ($1,330.00) Dollars and the amount of the award would therefore be the maximum of Four Thousand ($4,000.00) Dollars plus the additional sum of Four Hundred Fifty ($450.00) Dollars due by reason of the one child, Clifton Swafford, Jr., plus the further sum of Eight ($8.00) Dollars expense incurred for medical, surgical and hospital service, making a total of Four Thousand Four Hundred Fifty Eight ($4,458.00) Dollars. (See Hesler vs. State, 8 C. C. R. 594, Sec. 7, Sub-Secs, (a), (h-3), Ill. Workmen’s Compensation Act.)

No provision exists for payment of funeral expenses and no award is made for that part of plaintiff’s claim. (See Brittin vs. State, 8 C. C. R. 614.)

An award is therefore made to claimant in the sum of Four Thousand Four Hundred Fifty Eight ($4,458.00) Dollars, Four Thousand Eight ($4,008.00) Dollars of which is awarded to claimant, Bonita Swafford, in her own right and Four Hundred Fifty ($450.00) Dollars thereof being awarded to Bonita Swafford next friend for the use of Clifton Swaford, Jr., said award being payable as hereinafter provided:

Under the rules of the Workmen’s Compensation Act the award is made payable in weekly installments at the rate of Twelve and 78/100 ($12.78) Dollars per week. The time that has elapsed from the date of the death of deceased until June 1,1936, when it is assumed the first payment will be made to claimant, will be twenty-nine (29) weeks. Claimant will therefore be entitled to receive on June 1, 1936 the sum of Eight ($8.00) Dollars expense of last illness and Three Hundred Seventy and 62/100 ($370.62) Dollars for payments on compensation due to that time, leaving a balance of Four Thousand Seventy Nine and 38/100 ($4,079.38) Dollars to be thereafter paid at the rate of Twelve and 78/100 ($12.78) Dollars per week, payable in monthly installments, subject to the further provisions of the Illinois Workmen’s Compensation Act.

This award being subject to the provisions of an Act entitled “An Act making an appropriation to pay compensation claims of State employees and providing for the method of payment thereof,” approved July 2, 1935 (Sess. Laws of 1935, Page 49) and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from the Road Fund in the manner provided for in such Act.


author: Mr. Justice Yantis

text:
    (No. 1971
    Daniel S. Wentworth, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1936.

    Benjamin S. Adamowski, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks to recover One Thousand Two Hundred ($1,200.00) Dollars automobile damage, Fifty ($50.00) Dollars for clothing damage and Twenty Five ($25.00) Dollars for loss of tools and equipment resulting from an automobile accident on June 14, 1931 on Boute No. 4 between Bloomington and Funks Grove, Illinois.

A motion to dismiss by respondent was filed and taken with the case. A stipulation of facts has been entered into. From the stipulation it appears that the highway in question was of cement construction, built under State contract in 1923. At that time it was not the practice to construct expansion joints in the pavement, but since that time the necessity for providing for expansion joints has been generally recognized. The highway in question was at the time and is now under the control' and jurisdiction of the State and is a part of the General Hard Bead System of Illinois. On June 14, 1931 plaintiff was riding southwesterly over said road in a Chrysler 77 sedan then and there being driven by his son, Daniel S. Wentworth, Jr. It is stipulated that just northeast of Funk’s Grove as claimant’s car rounded a bend in the road, they were confronted without any warning with a blowup in the pavement, approximately two (2) feet high in the right lane of traffic along which claimant was proceeding; that because of the bulge and the downward slant toward the left side of the road, plaintiff’s automobile, after coming against the said ridge or elevation, was thrown or bounced over toward the left side of the road and into the path of an oncoming northbound automobile; that in order to avoid a head-on collision the driver of plaintiff’s car attempted to hold claimant’s automobile on his own side of the road but same was thrown into a ditch on the righthand side thereof, where it rolled over and was immediately destroyed by fire. It is further stipulated that representatives of the State of Illinois immediately took charge of the traffic and made emergency repairs of said highway and established and maintained warnings to automobile traffic, pending permanent repairs; further that claimant’s automobile had been purchased new on August 31, 1929 and was in first-class mechanical condition at the time of the accident. It further appears from the record that the explosion or eruption in the pavement was in a seam of the highway and occurred within forty (40) feet in front of said automobile. Nothing appears in the record as to the rate of speed at which claimant’s car was being driven or to what rate of speed his car should have been reduced from the time the pavement bulged, blew up, or exploded, forty (40) feet in front of claimant’s car. Claimant contends that inasmuch as he has waived any claim for personal injuries, this court should, in equity and good conscience, compensate him for the actual property damages sustained.

In his Brief and Argument the Attorney General relies upon the rule which has been generally held to be applicable to claims based upon questions' of highway construction, wherein it has been held, that “in the construction and maintenance of its roads, the State acts in a governmental capacity and in the exercise of such governmental functions it does not become liable in actions of tort by reason of the malfeasance, misfeasance or negligence of its officers or agents in the absence of a statute creating such liability.” This rule is stated in Bucholz, Admx. vs. State, 7 C. C. R. 241, and Chumbler, Admx. vs. State, 6 C. C. R. 138. The Legislature of Illinois has not seen fit to pass any statute that would create such liability in the case at bar.

Counsel for claimant has submitted a comprehensive Brief and Argument, citing cases in which municipalities in Illinois, and other States have been held to respond to damages where the negligence of the officers thereof was either the approximate cause of the injury, or concurring with the Act of God became the approximate cause.

The basis for plaintiff’s claim herein is that the pavement in question was constructed without expansion joints and that also the explosion that occurred on June 14, 1931 was one of many such that occurred under the heat of mid-summer suns; that the approximate cause of such explosion was the absence of expansion joints and that the action of nature and the excessive heat of mid-summer were not such Acts of God as would excuse the State from the result of such alleged negligent construction. Claimant concedes on page 11 of his Argument that in cases of a controversial nature where evidence of contributory negligence exists the State should refuse to award compensation to the claimant; but claimant further contends that in the instant claim no charge of contributory negligence exists and an award should therefore be made.

In a report from Fred Tarrant, Engineer of Maintenance, under date of September 27, 1932, he states that the pavement in question was in Ms opinion properly designed and of the same construction as thousands of miles of pavement in other parts of the State.

In a report under date of February 14, 1933 Mr. Tarrant states:

“At the time (1923) when this Route (No. 4) was built it was not the practice or the policy of the department to incorporate or construct expansion joins in the pavement * * * The department was making quite an extensive study of expansion joints and it finally became the practice to recognize the necessity for a provision for expansion joints * * * The construction of expansion joints does not by any means eliminate blow-ups but it does minimize them and tends to locate the probable point of the blow-up to one particular spot * * * In my opinion this defect in the concrete pavement is purely an Act of God and may be considered as one of the hazards which may occur to anyone using the highway system.”

Claimant attaches to his Brief a copy of his Exhibit “B ”, being a statement by a special staff correspondent of one of the Chicago papers in which he says under date of July 20, 1931:

“Pavements exploding under the heat of mid-summer suns have become a menace to high speed automobile traffic * * * thousands of explosions of concrete and brick pavements throughout the State during the last month have kept maintenance crews of the State Highway Department working overtime * * * Most of the explosions reported are on concrete pavements. However, reports also have been received of brick pavements throughout the State erupting.”

From an examination of the entire record we are brought to the conclusion that the use or non-use of expansion joints and the location thereof is a controversial matter; that in arriving at the present methods of hard-road construction, highway engineers have been compelled to test by actual experiment and use what form of construction will best withstand traffic and weather conditions, and we further conclude from the record that the use of expansion joints in hard-road construction does not eliminate pavement explosions in extremely hot weather, but minimizes and tends to localize such explosions to a probable point. It further appears from the record that such explosions occur in brick pavements, where a large amount of expansion area must necessarily he present.

The court therefore concludes that the record does not disclose such negligence in construction of the highway in question as would in any event justify an award in the case at bar. The court further reaffirms its previous holding that, “In the construction and maintenance of its roads the State acts in a governmental capacity and in the exercise of such-governmental function it does not become liable in actions of tort by reason of the malfeasance, misfeasance or negligence of its officers or agents in the absence of a statute creating such liability.” (Bucholz, Admx. vs. State, 7.C. C. R. 241, and Chumbler, Admx. vs. State, 6 C. C. R. 138.)

Respondent’s motion to dismiss the complaint is allowed and the cause is hereby dismissed.


text:
    (No. 2552
    Butler Brothers, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 16, 1936.

    C. Victor Cardóse, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

The complaint herein alleges that claimant, on January 24, 1933, sold and shipped to the Kankakee State Hospital, 609 yards of muslin at a price of Twenty Five and 12/100 ($25.12) Dollars plus freight of Fifty-two Cents (52c) or a total of Twenty Five and 64/100 ($25.64) Dollars; that said sale was made at the request of the Kankakee State Hospital through its Managing Director; that shipment was made from Chicago, as evidenced by Way Bill No. 20247 via Illinois Central Railroad Company, arriving at Kankakee January 26, 1933, and that the merchandise was delivered and signed for by R. Webb, an agent or employee of the Hospital. According to the Hospital records, Richard Webb was a truck driver for the Hospital at that time and one of his duties was to call for freight at the Illinois Central Depot. Due to the fact that the Hospital, through apparent error and omission, failed to have any record of the authorization for this purchase or its having been received by the Institution, the claim when presented was not paid. However the Hospital records further show that in going over the store’s perpetual inventory records, there was inventoried into the store stock on August 11, 1933, as a correction of inventory, 589 yards of 36" unbleached sheeting.

Due to the change in the management of the Institution more definite information is lacking in the record. Butler Bros, have no signed order for the merchandise in question showing that it was purchased by the authority of some responsible person, and in the absence of any record that it was actually delivered to the Institution in question and used by it, the court is without authority to authorize payment for such merchandise. It is strange that the Institution records are entirely silent as to the merchandise having been received and the only indication that such might have been the fact is that a shipping receipt was signed by one R. Webb. To charge the State with the cost of goods sold, it is essential that such sale be shown to have been made upon authority of someone duly authorized to make such purchase, or it must appear without question that the merchandise was actually received by some State Department or Institution, purchased in the regular and legal course of its operation. Under the record appearing in this case such an award cannot be made, and the claim is hereby dismissed.


author: Mr. Justice Yantis'

text:
    (No. 2802
    Joseph Cavataio, a Minor, by William J. Cavataio, His Father and Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 16, 1936.

    Wm. C. Dunham, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis'

delivered the opinion of the court:

Claimant herein seeks damages “in such sum as in equity and good conscience should be awarded.” At the time the claim was filed on January 20, 1936, claimant was six years of age. The claim, filed through the father and next friend, recites that on September 19,1932 the State Highway Department employees were engaged in filling joints in the concrete slab on State Boute No. 157; that a combination of hot tar and other materials were being used for the purpose of such maintenance and repair work. According to the complaint, the child, Joseph Cavataio, then four years of age, was walking near the easterly side of the slab at or near the intersection of said S. B. I. Boute No. 157 with 88th Street, in East St. Louis, Illinois; that highway employees had carelessly and negligently permitted a pool of the hot tar to accumulate on the edge of the concrete slab and on the dirt shoulder immediately adjacent thereto; that no barrier or warning as to the dangerous condition of the said pool of hot tar was provided, and that Joseph Cavataio stepped into the pool of hot tar and received injuries which resulted in the amputation of one of his toes and various burns to the hands, feet and body.

The Attorney General has filed a motion to dismiss the claim on behalf of respondent, and in support thereof contends that, in the construction and maintenance of public highways, the State is engaged in a governmental function and is not liable for damages caused because of the failure to maintain same in a safe condition, and further that the State is not liable for the negligence of its servants or employees unless there is a statute making it so liable, and further that no such statute exists in the State of Illinois. The latter rule has been often announced by this and other courts.

As stated in Crabtree vs. State, 7 C. C. R. 207,

“Unless a claimant can show a legal or equitable liability of the State to pay a claim filed, the court has no power to make such award.”

The forum in which the claim is entered is not a bureau of charities but a court existing by statute, and under the law creating it, it must determine all claims in accordance with legal principles. As there is no statute in Illinois -by which the State is made liable for the negligence of its employees, it follows that claimant is not entitled to an award against the State for the unfortunate injury suffered.

The motion of the Attorney General is allowed and the claim is dismissed.


text:
    (No. 2851
    Chicago Park District, a Body Politic and Corporate, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 16, 1936.

    James M. Slattery, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.'
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeks an award for Thirty Five Thousand Five Hundred Thirty Three and 11/100 ($35,533.11) Dollars. The complaint, filed February 26, 1936, alleges that on November 28, 1934 claimant entered into contracts with respondent through its Department of Public Works and Buildings, Division of Highways, to maintain certain routes or streets within the territory formerly under the control of the South Park Commissioners, the Commissioners of Lincoln Park, the North Shore Park District and the West Chicago Park Commissioners for a period not later than June 30, 1935; that all of the said districts and group were superseded under the law by the Chicago Park District, claimant herein.

The contract in question was made under the apparent authority of the following statutory provisions:

“In all cases where State or through traffic upon a State highway runs through a city, town or village, the Department of Public Works and Buildings shall locate a route upon existing streets or other thoroughfares or upon a new street or thoroughfare to be laid out through such municipality as an extension of such State highway so as to form a continuous route to serve the needs of through or State traffic upon such highway.”
Par. 204 (1), Chap. 121, Roads and Bridges, I. S. B. S. 1935.
“The department is authorized when it appears to be expedient to enter into contracts with the particular municipal corporation terminable in the discretion of the department for the municipal corporation to maintain the improvement or portion under the control of the State located within such municipal corporation, any part thereof, such maintenance to be under the supervision of the department and at the expense of the State.”
Par. 204 (4) Chap. 121, Roads and Bridges, I. S. B. S. 1935.

The contract in question relative to the streets or territory formerly under the control of the South Park Commissioners contained the following:

“The total amount to be paid by the department including the cost of repairs, snow removal, street cleaning and all maintenance and allowances for overhead shall in no event exceed $80,225.18 for the year ending June 20, 1934.”

A similar provision with reference to the territory under the former jurisdiction of the Lincoln Park Commissioners is included, except that it is provided the total therefor shall not exceed $30,753.94 for the year ending June 20, 1934. •

A similar provision with reference to the territory under the former jurisdiction of North Shore Park District is included, except the total allowance therein shall not exceed $4,395.30.

A similar provision with reference to the territory under the former jurisdiction of West Park Commissioners is included, except the total allowance therein shall not exceed $30,857.20.

The record discloses that claimant repaired, cleaned and maintained the aforesaid routes or streets and removed snow therefrom as provided for under the terms of said contract, as shown by invoices, submitted as Exhibits as follows:

Ex. 1, itemized total.................. $18,537.84 — S. Park Commrs.
Ex. 2, itemized total.................. 7,945.10 — W. Chi. Park Commrs.
Ex. 3, itemized total.................. 7,918.52 — Commrs. of Lincoln Park
Ex. 4, itemized total.................. 1,131.65 — N. Shore Park District
Grand total ...................... $35,533.11

Invoices submitted by claimant to the Highway Department on August 3,1935 were not received by the latter. Under an agreed statement of fact there appears to be due the claimant the sum of Thirty Five Thousand Five Hundred Thirty Three and 11/100 ($35,533.11) Dollars. Following the filing of invoices by claimant with the Highway Department on October 21, 1935, claimant was notified by Kendrick Harger, District Engineer of said Department, to file their demand with the Court of Claims. In a report dated March 4, 1936, from E. W. Boss, Engineer of Maintenance, he states:

“This Contract Agreement covered the period of July 1, 1934 to June 30, 1935, inclusive, at which time it was discontinued.
"Statements for the first three quarterly periods were received and scheduled for payment as required by the Contract Agreement, but the statement for the final period was not received for payment until the appropriation under which the Agreement was made had lapsed * * * The expense for maintenance is correct * * * their claim is justified and I recommend that it be paid.”

In a report dated March 12, 1936 Edward J. Barrett, Auditor of Public Accounts, states:

“With reference to your letter of March 10, regarding Claim Number 2851, please be advised that our records show that there was a balance of $966,643.94, at the time the appropriation for City Highway and Belt Line Maintenance lapsed on September 30, 1935.”

Counsel for claimant and the Attorney General both concede that payments were made by the Highway Department for all quarters except the last. This being true and the contract having been legally entered into and the services having been properly incurred and the State having received the services, an award is due. It further appears that such award will not bring the total payments to an amount in excess of the contract limit.

An award is therefore made in favor of claimant in the sum of Thirty Five Thousand Five Hundred Thirty Three and 11/100 ($35,533.11) Dollars, payable from the Road Fund of the Motor Fuel Tax Funds.


text:
    (No. 2875
    T. McBride & Son, Inc., an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 16, 1936.

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

delivered the opinion of the court:

Claimant seeks an award for Two Hundred Twenty-eight and 61/100 ($228.61) Dollars for merchandise itemized in its claim and sold and furnished to the State of Hlinois Highway Department, Elgin District, Elgin, Illinois, during the period from January 3, 1934 to June 28, 1936, for which respondent had agreed to pay the sum stated. On December 16, 1935 payment of the claim was declined by Charles H. Apple, District Engineer, for the reason that the appropriation under which this bill could have been paid had lapsed. The claim recites that the appropriation had been exhausted, but the reports of the Department show that this was not correct but that the appropriation had lapsed. We have heretofore held that where materials have been received by the State on orders legally made therefor and the goods have been furnished, and payment has failed only because of the lapsing of the appropriation, an award will be made for the amount due. Schreiber Lbr. Co. vs. State, 8 C. C. R. 381. This claim coming within the above rule, an award is hereby allowed in favor of claimant in the sum of Two Hundred Twenty-eight and 61/100 ($228.61) Dollars.


text:
    (No. 2535
    Mary W. Schaffenacker, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 16, 1936.

    Trapp & Trapp and Fred I. Edgell, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

On October 16, 1933 William G. Schaifenacker, husband of claimant, was employed by respondent through the Department of Public Welfare, at the Lincoln State School and Colony. According to the complaint filed herein, his employment was as farm manager at the farm that constituted a part of the Lincoln State School and Colony and his duties consisted in the overseeing of the farm: and the managing thereof, including the dairy, hog and horse barns, fields, truck gardens, the preservation and use of farm properties, and the growing and the harvesting of grain and all other products raised on said farm; that in the performance of his duties he daily inspected the barns, pastures, gardens, fields and offices of the farm, and that on the said date of October 16, 1933 while in the course of his duties in such inspection work, in attempting to climb over a wire fence he tripped and fell on his left side and received injuries from and as a result of which he died on the 2nd day of November, A. D. 1933. Claimant files her suit as the legally dependent wife of deceased.

Wages in full were paid to William G. Schaffenacker for the full period of his employment and up until the time of his death on November 2, 1933. Claim for compensation under the Workmen’s Compensation Act for Four Thousand ($4,000.00) Dollars was filed November 2,1934.

The Attorney General contends on behalf of respondent that the death of claimant did not result from an accident which arose out of and in the course of his employment; further the claim shows on its face that the application for compensation was not made within one year after the accident and is therefore in conflict with Section 24 of the Workmen’s Compensation Act. In connection with this objection the court finds that the payment of the amount due deceased for wages in full up to the time of his death on November 2nd does not constitute a payment of compensation as defined under the Workmen’s Compensation Act. This being the case, the claim is subject to dismissal as not having been filed within one year after the accident complained of.

In Claimant’s Statement, Brief and Argument, counsel contend that this court should not take cognizance of the limitation of the Workmen’s Compensation Act but should give regard to the latter only so far as it relates to matters of procedure. We believe counsel have misconstrued the meaning of the wording used in Menestrina vs. St. Louis National Stock Yard, 278 Ill. App. 342, p. 346, where it states:

“It is apparent that the Legislature designed that such demands were only cognizable before, and by, the Court of Claims, and that the procedure therein should be as near as might be, that employed under the Workmen’s Compensation Act, which should not otherwise apply.”

The words, “which should not otherwise apply” refer to the “Workmen’s Compensation Act” as a whole, meaning that except for the action by the Legislature the Act would not otherwise apply to State employees; and second, making it cognizable by the Court of Claims instead of by the Industrial Commission.

This court has definitely held that in its consideration of claims by State employees for injuries suffered in the course of their employment, the determination thereof, as prescribed under Section 6 of the Court of Claims Act will be made in accordance with the rules prescribed in the Act commonly called the Workmen's Compensation Act. In thus determining the rights of the parties, the court does not consider that it has discretionary power to say that it will observe a portion of the rules laid down by the Workmen’s Compensation Act, and ignore others, but will, in determining such rights, be controlled by all of the rules set forth in that Act; insofar as possible.

A careful examination of the record raises serious doubt as to whether the death of William G. Schaffenacker on November 2nd can be attributed to or connected with the accidental fall that he suffered on October 16th. One of the witnesses, William Sanders, testified that he was one of the herdsmen and was with deceased at the time he received his fall on October 16th; that in his opinion he received no injury about the head; that deceased had caught his toe in the wire and fell over backwards and “kinda sat down, and said that he hurt one of his testicles.” Dr. Armstrong, a veterinarian who was with Schaffenacker at the time of his fall, stated that the latter fell on his side; that he did not fall on his head and that after his fall he indicated the pain he had incurred by putting his hands on the umbilical region of the abdomen.

Dr. Frank M. Hagans testified that he was Mr. Schaffenacker ’s family physician, and that in his opinion the cause of his death was cerebral embolism or a clot on the brain. “Probably the result of the fall, breaking the vegetation from the valves of the heart; that he weighs about 240 or 250 pounds; that he had previously had chronic endocarditis, causing vegetation to be formed about the valves of the heart and that the blood clot on the brain could have been a sequence of a fall. ’ ’

Dr. George E. Booney was the staff doctor at the Lincoln State School and Colony and in a report dated March 28, 1936, also stated that the cause of death was given as cerebral thrombosis and that as the stroke did not occur for several days after Mr. Schaffenacker’s fall, he did not consider it had anything to do with the latter’s death.

Dr. P. S. Waters in a report under date of November 19, 1934, stated that he visited Mr. Schaffenacker each day during his illness; that after his fall he stated he was not injured and was able to ride home, and that he went about his work the balance of the day and on October 17th, 18th and 19th and that he, Dr. Waters, did not know1 that Mr. Schaffenacker was suffering to any extent from the result of his fall; that on the evening of October 20th Mr. Schaffenacker suffered a stroke and was at that time treated by Dr. George Eooney.

The court does not believe that claimant has sustained the burden of proof of showing that the death of Mr. Schaffenacker arose out of and in the course of his employment.

Further than this, Sub-section 8 of Section 3 of the Workmen’s Compensation Act excludes from participation in awards under the Act, those engaged in any work, employment or operations done, had or conducted by farmers and others engaged in farming, tillage of the soil, or stock raising — or to any work done on a farm or country place, no matter what kind of work or service is being done or rendered. The activities of Mr. Schaffenacker, as head farmer, as disclosed by the record, all indicate that he would fall within the excepted class.

From a consideration of the entire record, petitioner’s claim is rejected, award denied and the claim dismissed.


author: Mb, Justice Yantis

text:
    (No. 2848
    Richard Seibert, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 16, 1936.

    Claimant, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb, Justice Yantis

delivered the opinion of the court:

This claim was filed by Richard Seibert as the father and apparent next friend of Norma Seibert, a minor, for the refund of Twenty-five ($25.00) Dollars tuition fee paid to the Southern Illinois Normal University of Carbondale, Illinois. It appears that tuition fees were paid for the school year 1934-1935 and for the first term of the school year 1935-1936, notwithstanding the fact that when Miss Seibert entered the Normal School she was entitled to a County Scholarship which entitled her to free tuition. Reports appearing’ in the record from John J. Hallihan, Director of the Department of Registration and Education, and from Roscoe Pulliam of the Normal School, concur in claimant’s statements, and no opposition is interposed by the Attorney General to the payment of said claim.

This court has repeatedly held that where it appears an erroneous tax payment has been made through a mutual mistake of fact and the Attorney General concedes that claimant is entitled to an award, an award will be made. The Scudder-Gale Grocery Co. vs. State, 8 C. C. R. 719.

Miss Seibert was apparently entitled to free tuition. The fact that she held a Scholarship, entitling her to free tuition was overlooked by Miss Seibert and the management of said school. An award is therefore allowed in favor of Richard Seibert for the use of Norma Seibert in the sum of Twenty Five ($25.00) Dollars.


text:
    (No. 2843
    Dick Taden, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 16, 1936.

    A. Feed Kendall, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

For some time prior to and on September 27, 1934 claimant was employed by respondent in the Department of Public Works and Buildings, Division of Highways. On the latter date while unloading gravel the dipper of the crane crushed claimant’s index finger on the left hand against the door of a freight car.

It appears from the record that notice of the accident was given respondent within thirty (30) days thereafter and that claimant was totally disabled for a period of sixteen (16) weeks, partially disabled for a period of eight (8) weeks and that it became necessary to amputate his left index finger at the second joint, thereby losing the first two joints of said finger. Claimant incurred a Doctor’s bill with Dr. F. F. Buckner of Watseka, Ill. in the amount of Eighty Eight ($88.00) Dollars, no portion of which has been paid.

Claimant’s earnings at the time of the injury were Three and 20/100 ($3.20) Dollars per day, and he had two children— Evelyn, aged fourteen (14) years and Weldon, aged eight years.

The complaint was filed with the clerk of this court on February 15, 1936, and the Attorney General has filed a motion to strike compensation items by reason of the fact that the accident is alleged to have occurred September 27, 1934 and that the claim is therefore barred, under the terms of Section 24 of the Workmen’s Comperisation Act, for not having been filed within one year from the date of the accident. The complaint recites that the claim was presented to the Industrial Commission arid was dismissed for want of jurisdiction. There is no recital as to when it was filed with the Industrial Commission of when it was dismissed, but presumably it was filed with said Commission within one year after the accident. Claimant contends that inasmuch as the Industrial Commissiori and the Court of Claims are both State agencies, the State had due notice of the claim having been filed with the Industrial Commission, and that therefore when the latter dismissed the claim for want of jurisdiction, claimant should be entitled to file the claim with the Court of Claims at any time within the limitation period of five years prescribed by our rules, and that the limitation of Section 24 of the Workmen’s Compensation Act should not apply.

The Act creating the Court of Claims and prescribing its powers (Approved June 25, 1917, as amended), grants to the Court of Claims the power “To hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any employee of the State, such determination to be made in accordance with the rules prescribed in the Act commonly called the Workmen’s Compensation Act; the Industrial Commission being hereby relieved of any duty relative thereto, (Par. 6, Sub-Sec. 6.) ”

This court has held repeatedly that in the consideration of claims filed under the Workmen’s Compensation Act it has no authority to pick out certain rules or provisions of the latter Act by which the court will be governed in determining the rights of claimant and respondent and ignoré certain other rules and provisions of said Act in arriving at its conclusions. Section 24 of that Act provides, “That in any case, unless application for compensation is filed with the Industrial Commission within one year after the date of the injury or within one year after the date of the last payment of compensation, the right to file such application shall be barred.” The wording of the Court of Claims Law (supra), stating that the Industrial Commission is hereby relieved of any duty relative to the claims of State employees, and transferring such jurisdiction to the Court of. Claims, is clear and certain. It therefore naturally follows that claims for compensation to be considered by this court must be filed with this court under the provisions of Section 24 of the Workmen’s Compensation Act within the same time that claims of private employees are required to be filed by them with the Industrial Commission. The latter is a tribunal created by the State for the hearing of claims of private litigants, and the fact that plaintiff filed his claim with that Commission does not bring him within the jurisdiction of this court any more than if his claim had been filed in one of the County or Circuit Courts of our State. The Workmen’s Compensation Act gives to claimants certain privileges, but it also prescribes certain limitations. It is not the province of the Court of Claims to depart from the limitations prescribed by such legislation. The motion of the Attorney General, to strike and dismiss all of said claim except the item of Eighty Eight ($88.00) Dollars for medical expense incurred by claimant and due Dr. W. F. Buckner, is allowed. As the claim for medical service is not classed as compensation under existing decisions, it does not have to be filed within the limitation period of one year. An award is therefore allowed in favor of claimant, Dick Taden, for the use of Dr. W. F. Buckner in the sum of Eighty Eight ($88.00) Dollars.


text:
    (No. 2519
    Veterans of Foreign War, La Fore Lock No. 755 Drum & Bugle Corps, of Springfield, Illinois, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 16, 1936.

    William J. Lawler., for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

In a complaint filed October 17, 1934 claimant alleges that in the month of March, A. D. 1934 it was the owner of various Drum and Bugle Corps equipment of the value of One Thousand Four Hundred Eleven and 48/100 ($1,411.48) Dollars. This equipment and property, by permission of the State of Illinois, was stored in the State Arsenal Building at Springfield and was destroyed at the time the Arsenal burned, in the Spring of 1934. The complaint alleges that this fire occurred in March but the fire in fact was on Sunday, February 18, 1934.

Claimant seeks an award from the State in reimbursement of such loss. The Attorney General has filed a motion to dismiss the claim on behalf of respondent, contending that the permissive storing of said equipment in the building of respondent was a voluntary bailment and that there is no theory of law thereunder which would justify respondent in answering in damages for the loss of the property in question.

As disclosed by the claim, it appears that claimant’s property was left in the Arsenal by the claimant for its own convenience and without charge, and the transaction therefore constituted a bailment for the sole benefit of the bailor. Under the ordinary rule of bailments where same is for the sole benefit of the bailor, the bailee is only liable for bailed property when he is guilty of gross negligence. No allegation of such negligence appears in the present complaint.

In addition to this, the State, in the conduct and maintenance of the Arsenal was engaged in a governmental function, and in the exercise thereof would not be liable for the negligence of any servant or employee in the absence of a statute making it so liable. Minear vs. State Board of Agriculture, 259 Ill. 549. Bucholz, etc. vs. State, 7 C. C. R. 241.

The motion of the Attorney General is allowed and the claim dismissed.


text:
    (No. 2879
    The Western Union Telegraph Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 16, 1936.

    Ralph H. Overbaugh and Homer Brockett, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Under a claim filed April 8,1936 claimant seeks an award of Eleven and 32/100 ($11.32) Dollars for transmitting and delivering messages at the Chester State Hospital in the months of July and August, 1933 and January and August, 1934. The record supports the claim that the services were in fact rendered but there is little excuse appearing in the record to justify the delay of claimant in presenting its demand to the institution before the lapsing of the appropriation out of which such account should have been paid; however the claim is not opposed by respondent and under the rule that, where it is conceded that claimant rendered services to the • State that had been legally contracted, and has not been paid therefor because of the lapse of the appropriation out of which payment could have been made, and there is no dispute as to the amount due, an award will be made. Journal Printing Co. vs. State, 8 C. C. R. 673. Rock Island Sand and Gravel Co. vs. State, 8 C. C. R. 165.

It is Theeefobe Ordered that an award be entered in favor of claimant in the sum of Eleven and 32/100 ($11.32) Dollars.


text:
    (No. 2859
    Thomas R. White, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 16, 1936.

    Charles C. McBrian, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks to recover an award of Two Thousand Four Hundred Fifty-four ($2,454.00) Dollars for injuries which he received on July 2, 1935 while confined as a prisoner at the State Penal Farm at Vandalia, Illinois. Claimant’s contention is based upon the allegation that the injury was caused by the use of a defective carpenter tool which he was then using.

The Attorney General has filed a motion to dismiss the claim for the reason that the complaint shows that claimant at the time of the injury was an inmate of a State Penal Institution and not an employee therein, and that the State is not liable for injuries resulting to such inmate while engaged in some task assigned to him in such penal institution. This and other courts have consistently held that in the conduct of its penal and charitable institutions the State exercises a governmental function and that in the operation thereof it is not liable for injuries resulting to inmates while engaged in their various tasks and labors. Parks vs. State, 8 C. C. R. 535. Pelli vs. State, 8 C. C. R. 324. The motion of the Attorney General is allowed and the claim dismissed.