text:
    County of Will v. State of Illinois.

      Opinion filed December 22, 1916.

    Fees and Costs — meaning of in section 89 of act relating to' Joliet Penitentiary. The Legislature in enacting section 39 of the act in relation to the Joliet Penitentiary meant that the term “fees and costs” was intended to include not only what might he included in the strict definition of that term, but also other actual and necessary expenses incurred in the prosecution of a case.
    Robert W. Martin, State’s Attorney, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Statutes must be interpreted according to their intent and meaning and not always according to the letter; a thing within the statute, though not within the letter, and a thing within the letter is not within the statute, unless within the intention.

Perry v. Johnson County, 94 Ill. 214, 220;

Anderson v. Chicago, Burlington & Quincy R. R. Co., 117 Ill. 26, 28;

People ex rel v. Gaulter, 149 Ill. 39, 47;

People ex rel v. City of Chicago, 152 Ill. 546, 551.

In consturing a statute, the courts are not confined to the literal meaning of the words of the statute, but the intention is to be gathered from the necessity, object or reason of the exactment and the meaning of its words enlarged or restricted according to the true intent.

Castner v. Walrod, 83 Ill. 171, 178;

Cruse v. Aden, 127 Ill. 231, 239;

People ex rel v. City of Chicago, 152, Ill. 546, 552;

People ex rel v. Harrison, 191 Ill. 257, 267;

Dissenting opinion, People v. Russel, 245 Ill. 268, 282.

When the literal enforcement of the statute would result in great inconvenience and cause great injustice, and lead to consequences which are absurd and which the Legislature could not have contemplated, the Courts are bound to presume that such consequences were not intended and adopt a construction which will protect the ends of justice and avoid the absurdity.

People ex rel v. Gaudter, 149 Ill. 39, 47;

Crane v. Chicago of Western Indiana R. R. Co.. 233 Ill. 259 263

Sturges v. City of Chicago, 237 Ill. 46, 51;

People ex rel v. City of Chicago, 152 Ill. 522; 546.

In construing said statute, its object must be borne in mind and language susceptible of more than one construction should receive that construction which will effect the purpose and object of.the statute, rather than defeat it.

People ex rel v. Hinrichsen, 161 Ill. 223, 226;

People v. Price, 257 Ill. 587, 593;

City of Decatur v. Schlick, 269 Ill. 181, 185;

A prosecution is the process of exhibiting formal charges against an offender before a legal tribunal and pursuing them until terminated in the final judgment of the Court, to-wit: the sentence.

Territory v. Nelson, 2 Wyoming, 346.

Neither the people of the county in a criminal case can be held for costs.

Galpin v. City of Chicago, 249 Ill. 554, 566.

Section 39 of the act in relation to the Joliet P'ententiary provides with reference to the payment by the State of the costs of prosecuting convicts in the penitentiary who may commit a crime while in such penitentiary as follows:

“* *' * that all fees and costs arising from the prosecution of convicts for crimes committed in the penitentiary which the county is, now required to pay in like cases, shall be paid by the State.” Hurd’s Revised Statutes, 1916, chap. 108, par 39, p. 1968.

Fees — Costs—-Defined.

The term “Fees” is used to designate the sums prescribed by law as charges for services rendered by public officers.

City of St. Louis v. Meintz, 107 Mo. 611;

Com. v. Bailey, 3 Ky. Law Rep. 110-114.

Any charge for services not enumerated in the statute is not nor is there any pretense for calling it costs.

Chase v. De Wolf, 69 Ill. 47, 49.

Costs are awarded by each court in the proceedings before it. They are certain legal fees allowed by law computable from the record.

State v. Graham, 68 W. Va. 1, 7.

Costs are creatures of the statute and where the statute does not provide for costs, none may be taxed.

Galpin v. City of Chicago, 249 Ill. 554, 566.

At common law no costs were allowed by the Court or jury who were authorized to amerce the unsuccessful party a certain amount in addition to the amount sought to be recovered in the action, and here grew up the practice of allowing costs.

Galpin v. City of Chicago, supra, p. 566.

There is a distinction between fees and costs as indicated by the following citations:

In Alexander v. Harrison, 2 Ind. App. 47, 48, the court distinguished the terms "Costs” and “Fees” as1 follows:

“The terms Tees’ and ‘costs’ are often used interchangeably as having the same application, but accurately speaking the term Tees’ is applicable to the items chargeable by law as between the officer or witness and the party whom he serves; while the term ‘costs’ has reference to the expenses of the litigation as between litigants. Musser v. Good, 11 Serg. & R. Pa. 247. This distinction has little, if any practical value.”

The same distinction was made in the case of Bechart v. Anderson, 24 Okla. 82, 84. In Columb v. Webster Manufacturing Company, 76 Fed. 198, 200, the court said:

“ ‘Costs’ means taxable costs to be recovered by the adverse party. * * *. ‘Fees’ means for the cost at bar, the fees of the clerk in the strict sense of the word.”

In the case of In Re Terry, 153 N. Y. Supp. 258, oh pages. 260, 261, the Court said:

“But fees do not properly come within the definition of the word ‘costs’ * * *. Costs are defined to be the expenses incurred by the parties in the prosecution or defense of a suit at law. They are distinguished from fees in being an allowance to a party for expense incurred in conducting his suit, whereas, fees are compensation to an officer for services rendered in the progress of the cause.”

In City of Carterville v. Cardwell, 152 Mo. App. 32, 37, the court defined “costs” and “fees” as follows:

“As between a party to a suit and the officer or witness, the charges allowed are usually denominated fees; but as between the parties to the suit, these charges are usually called costs. The word “costs” when used in relation to the expense of legal proceedings, beans the sum prescribed by law as charges for the services enumerated in the fee bill.”

This is a claim amounting to $2,903.74, filed by claimant against the State for expenses incurred in the prosecution of Frank Bepetto and Jasper S. Perry, both of whom were tried and convicted of the charge of murder in the County of Will, Illinois; said offenses having been committed by them while confined as prisoners in the Illinois State Penitentiary at Joliet, Illinois. •

The jury in the Repetto case on October 17, 1914, returned a verdict finding him guilty of murder and fixing his punishment at death. Three reprieves were issued to tire defendant, the last one extending to July 16, 1915, on which day he was executed pursuant to the judgment and sentence of the Circuit Court of Will County, Illinois.

Jasper S. Perry was also tried in the Circuit Court of Will County, Illinois, and the jury returned a verdict finding him guilty and fixing bis punishment at death, but the Court granted a motion for a new trial on the ground that the punishment was too severe. Later, he entered a plea of guilty of the charge of murder and was sentenced to life imprisonment in the Illinois State Penitentiary.

Neither of these men were citizens or residents of Will County, Illinois, but on the contrary were sent to the penitentiary from Cook County, Illinois. This claim is prosecuted by virtue of the provisions of section 39, chapter 108, Hurd’s Revised Statutes, which statute provides:

“The several courts of Will Count)7, Illinois, having criminal jurisdiction, shall take cognizance of all crimes committed within said penitentiary by the convicts therein confined, and said courts shall try and punish all such convicts charged with such crimes in* the same maimer and subject to the same rules and limitations as are now established by law in relation to other persons charged with crimes in said county; * * * Provided, further, that all fees and costs arising from the prosecution of convicts for crimes committed in the penitentiary, which the county is now required to pay in like cases shall be paid by the State.

A bill of particulars filed by claimant in this case enumerated different amounts expended which in substance are as follows:

For guards ........................ ..$1,342.33

For jurors’ meals....................................... 186.99

For jurors’ fees........................................ 728,00.

For sheriff’s fees for court attendance...................... 34.30

For interpreter at trial......................... 3.00

For dieting prisoners................................ 161.00

Sheriff’s fee allowed by statute for execution of prisoner...... 100.00

For board of men employed to erect scaffold................. 2.50

Incidental expense to sheriff in connection with execution of

Eepetto ................. 345.02

In the last item of incidental expense to sheriff, there is included an item of $25.00 paid to W. T. Davis, Jailer of Cook County, Illinois for services rendered in connection with the execution of Eepetto, which includes railroad fare and other incidental expenses.

The State admits liability in the sum of $765.30, which amount includes jurors’ fees in the amount of $728.00; sheriff’s fees in the amount of $34.30, and interpreter’s fee in the amount of $3.00, but it denies that claimant is entitled to recover for any other items set forth in its claim.

The principal question in this case is what construction should be placed upon the statute herein above referred to. Did the Legislature intend to limit claimant to what might technically be termed ‘fees’ and ‘costs,’ or did it mean to allow claimant what might be deemed fees, costs and other actual expenses incurred in the prosecution of cases similar to the one before us.

We realize that while there are several authorities defining what is meant by fees and costs, still this particular question has not been decided by any court in Illinois so far as we are able to determine. Fiom a careful examination of the authorities presented by both sides, we are forced to the conclusion that the Legislature when it passed the statute in question, intended to reimburse claimant, not only for the fees and costs as they might be construed under a strict construction of that term, but it also intended to include in that- term reimbursement for other actual and necessary expenses incurred in the prosecution of these cases.

The item of $25.00 paid to W. T. Davis, Jailer of Cook County, Illinois, for services rendered in and about the execution of the said Repetto does not in our opinion constitute a valid claim against the State because there was no necessity for the sheriff of Will County, to hire the said Davis. If he desired to have the said Davis assist him in, this work he should pay him from the allowance he received for services of this kind.

Claimant having paid every other item enumerated in their claim, and there being no question but that it was necessary for it to lay_out the different amounts in pursuance of duties imposed upon it, we feel that it should be entitled to an award in this case for the money so expended.

Claimant is accordingly awarded $2,878.74.


source: Caselaw Access Project

license: Public Domain

text:
    The Northern Trust Company, as Trustee Under the Will of Samuel Lockwood Brown, Deceased v. State of Illinois.

      Opinion filed December 22, 1916.

    Inheritance Tax — when award will be made. In this claim • the tax was fixed by the County Judge and paid, after which an appeal was prayed to the County Court, and the tax reduced. Held, that an award should be made.
    William S. Miller and F. H. Benge], for Claimant.
    P. J. Lucev, Attorney General, for State.
   The claim in this case is for a refund of $65.31 inheritance tax claimed to have been erroneously paid to the County Treasurer of Cook County on the 22nd day of January, 1914, and is made under the provisions of an Act to tax gifts, legacies, inheritances, etc., approved June 14, 1909.

Samuel Lockwood Brown died testate on the 13th day of December, 1912, a resident of the City of Chicago, State of Illinois. Claimant was duly designated as trustee under the will of deceased, and was also nominated and appointed executor under said will, and that said The Northern Trust Company was duly appointed and qualified as such executor by the Probate Court of C'ook County, Illinois, on the 4th day of November, 3913, and that it has also qualified and is now acting as such trustee. An inheritance tax proceeding was had under the direction of the County Judge of Cook County. The appraiser filed his report with the County Judge, who entered an order on the 21st of January, 1914, fixing the total inheritance tax due the State of Illinois at $261.12. On January 22, 1914, more than six months after the death of said testator, the claimant paid the tax as fixed by said order together with interest thereon at six per cent from the date of death, to-wit: December 13, 1912, amounting to $17.49, making the total amount paid to the County Treasurer of Cook County $278.61, and which amount was transmitted by him to the State Treasurer of the State of Illinois. Afterward, claimant petitioned the County Court for an appeal which ivas approved and allowed to the County Court. The Court after having heard all the evidence found that the valuation placed by the appraiser upon the property of deceased was incorrect; the Court therefore entered an order on July 23, 3.914, finding that the tax was erroneously fixed by the County Judge, and finding the correct amount of the tax to be $200.00 instead of $261.12. This amount as corrected should also be charged with interest at six per cent from the date of death, to-wit: December 13, 1912, to the date of payment to the County Treasurer on January 22, 1914, amounting to $13.30, so that there should have been paid to the said County Treasurer the total sum of $213.30 on January 22, 1914, on account of said tax, instead of $278.61, making a difference of $65.31.

We find that the claimant has paid to the State of Illinois an erroneous and excessive tax and that it in all respects complied with the law to secure the refund and that it is entitled to have returned by the State, the sum of $65.31.

We therefore, accordingly award to claimant the sum of $65.31.


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    The Northern Trust Company, as Trustee Under the Will of John M. Whitman, Deceased v. State of Illinois.

      Opinion filed December 22, 1916.

    Inheritance Tax — when award will be made. In this claim the tax was fixed by the County Judge and paid after which an appeal was prayed to the County Court, and the tax reduced. Held, that an award should be made.
    Wm. S. Miller and F. H. Bengel, for Claimant.
    P. J. Lucey, Attorney General, for State.
   The claim in this case is for a refund of $1,445.16 inheritance tax claimed to have been erroneously paid to the County Treasurer of Cook County on the 22nd day of April, 1913, and is made under the provisions of an Act to tax gifts, legacies, inheritances, etc., approved June 14, 1909.

John M. Whitman died testate on the 29th day of October, 1912, a resident of the City of Chicago, State of Illinois, and claimant was duly designated as trustee under the will of John M. Whitman, and was also nominated and appointed executor under said will. The said The Northern Trust Company was duly appointed and qualified as such executor by the Probate Court of Cook County, Illinois, on the 9th day of November, 1912, and is still acting as such, and it has also qualified and is now acting as such trustee. An inheritance tax proceeding was had under the direction of the County Judge of Cook County; the appraiser filed his report with the County Judge, who entered an order on April 2, 1913, fixing the total inheritance tax due the State of Illinois at $30,459.39. On April 22, 1913, less than six months after the death of the testator, the claimant paid the tax as fixed, and thereby secured a discount of five per cent, amounting to $1,522.95, thus making the amount paid to the County Treasurer of Cook County $28,936.44, which amount was transmitted to the Treasurer of the State of Illinois. Afterwards, claimant petitioned the County Court for an appeal which was approved and allowed to the County Court. The Court after having heard all the evidence, entered an order on April 12, 1934, finding that the tax was erroneously fixed by the County Judge, and finding the correct amount of the-tax to be $28,940.30, instead of $30,459.39. The amount as corrected is also entitled to a discount of five per cent, it having been paid within six months after the death of the testator, which discount would amount to $1,447.02, so that there should .have been paid to the County Treasurer on April 22, 1913, on account of said tax, the sum of $27,493.28, instead of $28,936.44, making a difference of $1,443.16.

We therefore accordingly award claimant the sum of $1,443.16.


text:
    Loney Neith, by Gus Neith, Her Next Friend v. State of Illinois.

      Opinion filed December 22, 1916.

    Respondeat Superior — doctrine of not appliable to State. The doctrine of respondeat superior does not apply to the State, and the State is not liable for the torts • of its agents.
    Michael W. Kaveney, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant, a girl of fourteen years of age, was struck by a swing in the playground at Lincoln Park, Chicago, on June 25, 1915. She sustained a fracture above the right knee and certain other injuries. The declaration as filed contained no allegation of any negligence on the part of the State or any of its employees, but testimony has been taken, and the case tried on the theory that there is some allegation of such nature. From the evidence, it is apparent that the injured claimant was on a path, that the swings projected over the path, and that she was caught by one of the swings as she was attempting to fix her hat, and dragged, and sustained the injury complained of. There were no attendants in charge at the time, they being in another part of the park.

Claimant was confiled to a hospital for five weeks, and did not return to work for three months; she had been working and was earning $5.00 per week.

We have before us many suggestions both by claimant’s attorney, and the family pastor, that the family is in very poor circumstances, and the case as presented would seem,to be more an appeal for a charitable contribution by this Court than for relief as provided by law.

There is no claim that the injured was not,of sufficient age or mentality to exercise care for her own safety, and there is actually nothing in the evidence- that could substantiate a finding for claimant. We have so repeatedly held that the State is not liable for the torts of its agents where it is exercising a .governmental function, that further discussion along this line would be needless.

The claim is rejected.


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    Hugh Cain v. State of Illinois.

      Opinion filed December 22, 1916.

      Negligence — State not liable for the torts of its officers, agents, and employees. The State is not liable for the torts of its officers, agents and employees.
    Enochs & Kerker, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant was employed at the University of Illinois as an electrician’s helper. On April 10, 1916, he and two others attempted to move a heavy box into a building at the University. He was directed by his superior to assist in the work. In doing the work he walked over some gas pipe which rolled when he stepped upon them.

The negligence alleged that three men were not enough to carry the box, and that lie should not have been required to walk over the gas pipes in carrying it. Due to one or the other or both of the causes as stated, claimant sustained an inguinal hernia for which he underwent an operation. As a result of this, he was unable to work until September 7th, and has lost wages and has been put to considerable expense. It is argued by claimant’s attorneys, “He followed blindly the orders and commands of his superiors.” To us it would seem he was obligated to use some degree of care for his own safety, but there is no evidence in the record which would support even such a presumption. It has been held by this Court in cases which have arisen at the University of Illinois, that the State is not liable for the torts of its officers, agents and employees, and we see no reason why we should change our former holdings in this particular.

In our view of this case, claimant would not be entitled to rerover even if we did not hold as above stated, and it is consequently the judgment of this Court that this claim be rejected.


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    Isaac N. Adrian v. State of Illinois.

      Opinion filed December 22, 1916.

    1. Governmental Functions — State exercises in operating Jacksonville State Hospital. The State in the operation of the Jacksonville State Hospital, exercises a governmental function.
    2. Respondeat Superior — doctrine of does not apply to State. The doctrine of respondeat superior does not apply to the State and where the State exercises a governmental function it is not liable in tort.
    R. S. Egan, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant held the position of property and economy officer of the State Board of Administration of the charitable and other kindred institutions of the State since 1913. It was his duty to visit the different institutions under the control of the State Board of Adminisration once each month to inspect and inventory property, to advise with farmers in control of lands, check up the institutions and make reports. His ■ salary was $1,500.00 per annum.

On August 14, 1914, while in the discharge of his duties he went to the State Hospital at Jacksonville. He was being driven around the premises in a wagon to which was attached a team of horses driven by one Peterson, a farmer at the institution, instead of the regular coachman who was away on a vacation. The team had been idle for several days; the harness on the team was in a very bad state of repair. The horses took fright at a canvas which had been plaved upon a picket fence to dry by Peterson, and started to run away. Peterson, in pulling on the lines, broke three straps, due to the defective condition of the harness. The wagon was partially tipped over and claimant was thrown out on the ground. His left ankle bones were broken and: he was unable to rise from the ground. He sustained a “Potts Fracture,” a fracture of the lower part of the fibula, and he was in a hospital aij Jacksonville for about two weeks, and then removed to the State Hospital at Jacksonville, where he remained until October 29, 1914. He was then removed to his home at West Chicago, where he was confined until about December 1st following. He then attempted to enter upon his duties, but was unable to do any work.

He was retained on the State pay roll until April 1, 1915.

He is a man sixty-three'years of age, and in addition to the physical injuries has become broken down in health, having lost considerable weight, and was at the time of the taking of the testimony in this case .«till under tlie physician’s care and the prognosis is that he will always he lame as the result of the injury.

The declaration charges the State with negligence, in that the driver of the team was incompetent, that the act of the State employee in placing the canvas upon the picket fence scared the horses, and that the harness was unsafe and in a rotten condition.

The State sets up. as a defense that it is operating the Jacksoncille State Hospital in its governmental capacity, and that the doctrine of respondeat superior is not applicable.

We have so repeatedly held that the State in the exercise of its governmental function cannot be held to respond in damages for the negligence of its employees, that citation of authority would be unnecessary. There can be no award made by this Court in this case.

But it has been the principal of this Court, in a case otherwise meritorious, that is, in a case where an injury is sustained through no fault on the part of the injured person and entirely through the fault of the employees of the State, not to preclude a claimant from securing an appropriation from the Legislature by rejecting the claim.

This case appears to us to be one falling within that class. If, under the law, we had it within our power to make an award, we would award the claimant here the sum of $3,000.00, but, inasmuch as we cannot do this, this claim will be rejected without prejudice, however, to the right of the claimant to present his claim to the Legislature to secure an appropriation.


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    Mary Sutter v. State of Illinois.

      Opinion filed December 22, 1916.

      Damages — Johnson v. State, ante followed. This claim is governed by the decision in the case of Frank O. Johnson v. State of Illinois, 2 Ct. of Cl. R. 227.
    Lagger & Blatt, Brown, Hay & Creighton, for Claimant.
    P. J. Lucey, Attorney General, for State.
   The facts in this case are almost identical with the facts in the case of Frank O. Johnson v. State of Illinois, decided May 22, 1914, in the Court of Claims, and reported in Volume 2 Ct. of Cl. R. at page 227.

On the authority of that case, claimant is entitled to an award, and the only question for this Court to decide is as to the proper amount that should be awarded.

Prom a consideration of the evidence as offered by claimant, and the State, it is the opinion of this Court that claimant shall be awarded $750.00.

It is accordingly the judgment of this Court that she be awarded the sum of seven hundred fifty and 00/100 ($750.00) dollars.


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    Fred H. Gillett v. State of Illinois.

      Opinion filed December 22, 1916.

    Respondeat Superior — doctrine of not applicable to State. The rule of respondeat superior is not applicable to the State.

      Claims — rejection of without prejudice. The court reviews the evidence and rejects the claim without prejudice to the claimant to present it to the Legislature.
    John H. Savage and John W. Downey, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimant while employed as a guard at the Illinois State Penitentiary at Joliet, Illinois, was assaulted and injured by one of the convicts under his charge on thei night of January 24, 1915. He was struck on the head by a brick thrown by the convict, causing a compound fracture of the skull, and as a result of the injuries sustained, claimant has been left in a weakened condition,and is unable to perform his usual occupation or do other manual labor requiring much exertion.

The assault was wilful and malicious on the part of the convict in question, and claimant at the time of receiving the injury, was in the performance of his duties and was free from any negligence.

In the case of Schmidt v. State, 1 Ct. of Cl. R. at page 76, which is c-ase similar to the one before us, this Court held that the State was not liable to an employee of the Southern Illinois Penitentiary at Menard, who had been assaulted and injured by one of the convicts in that institution.

In Taylor v. State, 2 Ct. of Cl. R., page 243, in which an employee of the Illinois State Penitentiary sought an award for injuries suffered by reason of the negligence of another employee of the State, it was held that the rule of respondeat superior does not apply to the State, and the claim was denied.

While the rule as announced in the above cases precludes our giving an award to the claimant, still recognizing the seriousness of claimant’s injuries,, together with all the other attending circumstances in the case, we do not wish to prevent him from presenting his claim to the Legislature, and this claim is therefore rejected without prejudice.


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    James A. Donnelly v. State of Illinois.

      Opinion filed December 22, 1916.

      Services — when State not liable for. Where a person voluntarily performs services by which the State is benefited, without direct authority, no liability attached for the payment of such services.
    Attorney General — legal representative of the State. The Attorney General is the legal representative of the State in all matters.
    James A. Donnelly, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Sarah J. Lace of Cook County, Illinois, was committed to the Kankakee State Hospital as an insane patient in 1895, and remained there until the time of her death, which occurred on or about December 24, 1914. At the time of her commitment, she did not possess any property except a small homestead that was afterward lost through foreclosure of a mortgage.

In 1908, James M. Braschler, conservator of the estate of Sarah J. Lace, collected about Three Thousand and 00/100 ($3,000.00) dollars, for the estate, due to the fact that his ward was an heir of a Mr. Jones, who departed this life in the southern part of Illinois. Shortly after the death of Mrs. Lace, Braschler was appointed administrator of the estate of Mrs. Lace, but he did not act long in that capacity, as he was removed by an order of the County Court, and a son. of the deceased was appointed as his successor.

It appears that claimant had been acting as attorney for the conservator, Braschler, but his services came to an end when Braschler was succeeded by Lace as administrator as hereinabove noted.

Claimant realizing that the estate of Sarah J. Lace was indebted to the Kankakee State Hospital, wrote a letter to that institution requesting that he be advised if such a claim existed. The institution forwarded a statement of claim to the claimant, who filed the same against the estate of Sarah J. Lace, deceased, and upon a trial a judgment for $413.00 was entered against the estate.

The attorneys representing the estate, mailed a check for the amount of the judgment, direct to the State Board of Administration.

Claimant presented his bill for $15.00 to the Board of Administration for services rendered in connection with the collection of this claim. Payment was refused, and. he was advised that the Board of Administration had not authorized him to act for it, and it further advised him that the Attorney General of the State represented it in matters of this kind. '

Claimant not having received any compensation for his services, filed his claim in this Court to secure an award.

Is the State liable under the facts presented by the record? This is the only question for the Court’s consideration.

There is nothing in the record which shows that claimant was employed by any one having authority to bind the State, but on the contrary, it appears that his services were volunteered. This being true, the State is not liable and the claim is accordingly rejected.


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    Emma Metzger v. State of Illinois.

      Opinion filed December 22, 1916.

    Inheritance Tax — facts held sufficient to authorize recovery. In this claim by reason of the interest" of claimant having been determined, the trust created having terminated, award is made accordingly.

      Same — requirement of appeal from order of County Judge does not apply, when. The requirement that an appeal from the order of the County Judge fixing the inheritance tax is necessary to secure a refund, does not apply when the happening of events determine the interest of the party occur after the limit within which such appeal may be taken.

      Same — refund of. The decision of a superior court holding that a party cannot take property on which tax has been paid is held sufficient to justify award for refund.
    Holden & Buzzell, for claimant.
    P. J. Lucey, Attorney General, for State.
   This claim is filed by Emma Metzger to' secure a refund of an inheritance tax which she claims was wrongfully assessed against her in connection with certain estates devised by her father, William Metzger, deceased.

At the death of claimant’s father, six children were surviving, and by his last will which was probated in Cook County, Illinois, he devised to each of said children, one-sixth of his estate. It was provided that the one-sixth interest devised to his daughter, Marie Mueller, should he held in trust for her, the trustees appointed in said will be empowered to handle the income of same as they deemed advisable during her life time.

The will further provided that if the said Marie Mueller should die after the testator, leaving child or children or descendants of any deceased child her surviving, then and in that case the surviving child or children, and the descendants of any deceased child should receive the estate held by said trustees. It was also further provided in said will that if the said Marie Mueller should die after the testator, leaving no child or children or descendants of any deceased child her surviving, then the trustees should convey and transfer said trust estate to such of the testator’s children and the descendants of any deceased child of his that may then he living; the said children and the descendants of any such deceased child to take per stirpes and not per capita.

Claimant was taxed for one-sixth of’ the estate devised and bequeathed to her in her own right, and in addition thereto, was taxed for the value of the reversion in the trust estate devised to Marie Mueller, on the theory that said reversion would eventually become the property of claimant.

The one-sixth interest devised to claimant together with the amount she received as a child’s award are as follows: Child's award ........................................$ 3,000.00 One-sixth interest of estate.............................. 67,893.75

This amount less the exemption of $20,000.00 is $50,893.76. One per cent tax on the latter amount would be $508.94, and taking the five per cent discount, amounting to $25.44, the amount that could be taxed to her would be $483.50.

In addition to being taxed on the total valuation of $70,893.76 as hereinabove set forth, claimant ivas also taxed for $31,827.50, which was the valuation placed on the reversionary interest in the Trust Estate.

By charging claimant as aforesaid, slie ivas compelled to pay a two per cent rate on an estate valued at $102,721.31, less the exemption of $20,000.00. The tax fixed on this amount ivas $1,654.43; and after deducting five per cent she paid $1,571.71 under protest.

The order of the County Judge fixing this tax ivas entered on December 11, 1912; claimant did not prosecute an appeal from said order, but later, on July 2, 1913, a bill in equity was filed by Marie Mueller against claimant and others in the Circuit, Court of Cook County, asking that the will of William Metzger, deceased, be set aside, and declared null and Void. An issue of fact was made up' and submitted to á jury as to whether or not the instrument purporting to be the last will of William Metzger, deceased, was in fact his last will. The verdict of the jury was that the instrument in question was not the last will of William Metzger, deceased, and upon this verdict, a. decree Avas entered setting aside said last Avill. All of the adult defendants including claimant consented to this decree.

As a result of said decree, the estate of William Metzger, deceased, descended to his children according to the Laws of Descent of this State, instead of passing to them under his Avill, and-the trustees who were nominated by the decedent to take charge of the Trust Estate deA'ised to Marie Mueller, turned the said estate over to her as her oahi absolute property.

Claimant contends that since the Avill has been set aside, aaTúcIi had the effect of vesting the absolute title of the said Trust Estate in Marie Mueller, she should have a refund for all the tax she Avas compelled to pay on account of said Trust Estate. Out of the surplus she asks that all money due against the estate of Marie Mueller be deducted, and that the remaining $785.86 be returned to her Avitli interest thereon, at three per cent per annum from Januarj' 3, 1911.

It is contended by the State that -claimant is not entitled to recover for the folloAving reasons:

■First — Claimant did not prosecute an appeal from the decision of tlie Judge of the County Court of Cook County, to the County Court of Cook County, as required by statute.

Second — Claimant has not pursued the remedy available to her to entitle her to an award.

Third — The decree of the Circuit Court of Cook County setting aside the said will does not have the effect of nullifying the order of the County Judge of Cook Counfy.

It is urged by claimant that the decree setting aside the will of WilliamMetzger, deceased, had the effect of definitely determining the rights of the parties to the different estates left by the decedent, and that it is unjust and inequitable for her to be taxed for an estate in which she has no interest.

We appreciate the fact that claimant was compelled to pay a tax on an estate in which it is now clearly settled that she has no interest, but the proposition we have to consider deals with the authority vested in this Court to grant redress in a claim of this character.

The law is well settled in the State as to a claimant’s right to recover a tax that has been unlawfully collected, and it is also well settled as to what is required to be done in order to secure a refund of same.

The only way the action of the County Judge in fixing the tax may be reviewed is by an appeal to the County Court. Par. 378, chap. 120 Hurd’s Rev. Stat. 1913, p. 2099.

“The County Court has jurisdiction to hear and determine all questions in relation to the tax arising under the Inheritance Tax Law, (Par. 379, Chap. 120 Supra) and the County Judge, by order entered, upon a hearing, fixes the tax, and appeals from the decision of such Counfy Judge may be taken to the County Court. Para. 378, Chap-. 120, Supra

Several claims have been presented to this Court, asking for a refund of a, tax claimed to have been wrongfully assessed, but unless claimant proceeded in accordance with the statute governing cases of this kind, their claims for awards have been denied.

This case presents a somewhat different statement of facts, in that, the question as to the rights of the respective heirs of William Metzger, deceased, was definitely determined when a decree was entered setting aside the will of William Metzger, deceased.

While the statute is clear' as to what is required of one seeking a refund of a tax erroneously assessed by the County Judge> yet in this case it is our judgment that the method prescribed by the statute was not intended for cases similar to the one before us; in fact, claimant could not follow said method because the order of the County Judge fixing the tax was entered on December 11, 1912, and the bill in equity of Marie Mueller against claimant and others to set aside and have declared null and void the will of William Metzger, deceased, was not filed in the Circuit Court of Cook County, Illinois, until July 2, 1913, which was more than six months after the entering1 of the order of the County Judge of Cook County, Illinois, fixing said tax and the time of appeal from said order had expired and the will was not set aside until at least six months after the bill in equity was filed, and it was not filed by claimant.

It is evident that by the decision of the Circuit Court declaring the last will and testament of the decedent, void, claimant cannot possibly take the property, that is, the reversionary interest in that originally willed to Marie Mueller as a trust fund. This being the case, it would be a hardship to compel her to lay out the amount of money erroneously assessed against her which she was compelled to pay without any fault on her part.

After allowing the State the amount of tax due it from claimant, and Marie Mueller, we find the excess paid to the State by claimant to amount to $785.86.

■ "We therefore make an award in favor of the claimant for seven hundred eighty-five and 86/100 ($785.86) dollars, with interest thereon at the rate of three per cent per annum from January 3, 1011.


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    William B. Hale, et al v. State of Illinois.

      Opinion filed December 22, 1916.

    Inheritance Tax — refund of. An appeal from the order of the County-Judge to the County Court where a final order is entered reducing the amount of tax due from an estate, is sufficient authority to entitle claimant to a refund of the amount overpaid.
    Kales, Kelly & Hale, for Claimant.
    P. J. Lucey, Attorney General, for State.
   Claimants are the executors and trustees of the estate of George W. Hale, deceased, who in his lifetime was a resident of Cook County, Illinois. On April 16, 1915, the County Judge of Cook County, Illinois, entered an order fixing the tax on the decedent’s estate at $46,258.88.

On the same day, claimants paid the County Treasurer of Cook County, Illinois, under protest, the sum of $44,945.94, being the amount assessed less the five per cent discount.

An appeal was taken from the order of the County Judge to the County Court, and later, on the 7th day of August, 1915, that Court entered an order finding the correct amount of Lax to be $34,702.15.

A demand was made upon the County Treasurer of Cook County and upon the State Treasurer for the difference which was $10,978.89, but neither of them refunded any part of this amount to claimants.

It is contended by the State that the claimants are entitled to a refund of $9,243.79, and that to allow them more would be charging the State interest.

We fail to appreciate the force of the State’s contention that any part of this refund represents an allowance of interest. On the authority of Bartholomae v. State, 2 Ct. of Cl. R. 306, and Carpenter v. State, opinion filed this dayr, claimants by the final order of the County Court are entitled to a refund from the State amounting to ten thousand nine hundred seventy-eight and 89/100 ($10,978.89) dollars, and we therefore make an award in their favor for this amount.


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    Julius G. Skoog v. State of Illinois.

      Opinion filed December 22, 1916.

    Fees and Salaries — payment of to persons is classified civil service. A person, in the classified State Civil Service, discharged without authority, and later reinstated, is entitled to payment of his salary for the period' of his discharge.
    T. J. Sullivan, for Claimant.
    P. J. Lucey, Attorney General, for State.
   The claimant in this case, Julius C. Skoog, held the position of clerk in the Insurance Department of the State of Illinois for some years prior to July 1, 1911, and until on or about the 6th day of March, A. D. 1915; he continued to hold his above position, and was a member of the classified State Civil Service of the State of Illinois, by; virtue of an Act of the Legislature approved June 10, 1911, and in force July 1, 1911.

The evidence in this ease shows that claimant' was discharged on the 6th day of March, 191.5, from the said position by the State Civil Service Commission without any charges having been preferred against him, and without any hearing having been given him, except that he ivas required to take an efficiency test and that he failed to receive the necessary grade. The evidence further shows that on the 1st day of April, 1915, he was reinstated by the said State Civil Service Commission to said position above mentioned, and that while employed he received and was paid by the State of Illinois the sum of $125.00 per month.

He now presents his claim to this Court for the sum of $97.20, being the balance of his salary during the month of March 19,15„ oil the ground that he was unlawfully discharged by the State Civil Service Commission.

The State does not contend that claimant is not entitled to the balance of his salary, as stated in his claim, on the ground that he was unlawfully discharged.

We therefore make an award to claimant in the sum of ninety-seven and 20/100 ($97.20) dollars.


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    Fred C. Weis v. State of Illinois.

      Opinion filed December 22, 1916.

    Fees and Salaries — payment of to persons in classified civil service. A person in the classified State Civil Service, discharged without authority, and later reinstated, is entitled to payment of his salary for the period of his discharge.
    T. J. Sullivan, for Claimant.
    P. J. Lucey, Attorney General, for State.
   The claimant in this case, Fred C. Weis, held the position of cleric of the State Mining Board of the State of Illinois, for some time prior to July 1, 1911, up to, on or about the 24tli day of January A. D. 1915, and was a member of the classified State Civil Service of the State of Illinois, by virtue of an Act of the Legislature approved June 10, 1911, ■and in force July 1, 1911.

The evidence in this case shows that during the term of service above mentioned, the claimant received and was paid by the State of Illinois, the sum of $125.00 per month. That on the 24tli day of January, 1915, claimant was discharged from said position by the State Civil Service Commission without any charges having been preferred ag-ainst him, and without any hearing having been given him before the said State Civil Service Commission, except that he was required to take an efficient test, and failed to receive the necessary passing grade. The evidence further shows that afterwards, on the first day of February, 1916, claimant was reinstated by the said State Civil Service Commission to the position formerly held by him, as above mentioned, and at the. salary of $125.00 per month, as above stated.

Claimant now presents his claim to this Court for the full amount of the salary due him from the 24th day of January, 1915, to the first day of February, 1916, amounting to $1,538.42, on the ground that he had been unlawfully discharged by the State Civil Service Commission.

The State does not contend that claimant is not entitled to said amount of salary, because he was unlawfully discharged.

We therefore make an award in favor of the claimant for one thous- and five hundred thirty-eight and 42/100 ($1,538.42) dollars.


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    Thomas L. Atkinson v. State of Illinois.

      Opinion filed December 22, 1916.

    Fees and Salaries — unlawful discharge of civil service employees. A person in the classified State Civil Service who is unlawfully discharged from his position, and later reinstated is entitled to payment of his salary during the period of such discharge.
    T. J. Sullivan, for Claimant.
    P. J. Lucey, Attorney General, for State.
   The claimant in this case, Thomas L. Atkinson, states that on the second day of ^November, 1912, he was certified by the State Civil Service Commission of the State of Illinois, as general bookkeeper to the Board of Administration of the State of Illinois, and that on and after said date he continued to be a member of the classified State Civil Service of the State of Illinois.

The evidence in this case shows that on the 13th day of February, A. I). 1915, claimant was discharged from said position by the State Civil Service Commission without any charges having been preferred against him, and without any hearing having been given him before the State Civil Service Commission, except that he was required to take an examination for an efficiency test, and that he failed to: receive the necessary passing grade. The evidence further shows that afterwards, on the 1st day of February, A. D. 1916, this claimant was reinstated by the State Civil Service Commission to the position formerly held by him, as above mentioned, and at the salary of $150.00 per month, the salary he also received prior to his discharge.

The claimant now presents his claim to this Court for his unpaid salary from the 13th day of February, 1915, to the 1st day of February, 1916, amounting to the sum of $1,730.35, on- the ground that he was unlawfully discharged.

The State does not contend that claimant is not entitled to this salary, as he was unlawfully discharged.

We therefore make an award to claimant in the sum of one thous- and seven hundred thirty and 35/100 ($1,730.35) dollars.


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    Cora Darin Lozza v. State of Illinois.

      Opinion filed December 22, 1916.

      Damages- — Johnson v. State\ ante followed. This case is governed by the facts in the case of Frank O. Johnson v. State1 of Illinois, 2 Ct. of Cl. R. p. 227.
    Lagger & Blatt and Brown, Hay & Creighton, for Claimant.
    P. J. Lucey, Attorney General, for State.
   The facts in this case are almost identical with the facts in the case of Frank O. Johnson v. State of Illinois, decided May 22, 1911, in the Court of Claims, and reported in Volume 2, Ct. of Cl. R., at page 227.

On the authority of that case, claimant is entitled to an award, and the only question for this Court to decide is as to the proper amount that should be awarded.

From a consideration of the evidence as offered by claimant and the State, it is the opinion of this Court that claimant shall be awarded $500.00.

It is accordingly the judgment of this Court that she be awarded said amount.


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    John Dunlop v. State of Illinois.

      Opinion filed May 7, 1917.

    Attorney Fees — State not liadle for. The State is not liable for fees paid to an attorney for defending a public officer charged with malfeasance in office, unless expressly authorized by the special order of the Attorney General.
    Attorney General — is legal representative of the State. The Attorney General is the legal representative of the State, and no officer, hoard, commission or department can legally authorize the employment of an attorney.
    Weil & Bartley, for Claimant.
    Edward J. Brundage, Attorney General, for State.
   Claimant was a State Mining Inspector working under the direction of the State Mining Board in Peoria County. In 1913, an explosion occurred in the Crescent Coal Company mine in Peoria Comity, and claimant made an investigation of the disaster. He caused the arrest of a miner under the provisions of the mining laws, and in doing this incurred the enmity of certain persons, as a result of which claimant was indicted by the Grand Jury of Peoria County charging him with malfeasance in office, in that he failed to post certain notices as required by law, and failkl to see that a certain entry! had been sprinkled.

The President of the State Mining Board employed attorneys to defend the claimant, and after a trial, claimant was acquitted.

The Mining Board approved a bill for the services of the attorneys in defending claimant, and issued a voucher which was approved by the Department and Institution Auditor, but the State Auditor refused payment.

Afterwards claimant paid the attorneys and now asks the State to reimburse him. Claimant contends that he should be reimbursed because he was a public officer acting in behalf of the State and because of the fact that he was performing his duty, and thereby incurred the ill-feeling of others, in consequence of which he was put to the expense of defending himself on the criminal charges.

It would indeed seem to be an injustice not to reimburse this man for this expense, but at the same time, it may he argued that this was one of the risks he undertook in the performance of the; duties of his position.

Under the opinion of the Supreme Court in Ferpus v. Russell, 270 Ill. 325, -we must hold that the President of the Mining Board had no authority to employ attorneys to defend claimant. It is argued that it would create a somewhat anomalous situation for the Attorney General to defend claimant in a suit where the State’s Atttorney of Peoria County was prosecuting. This is undoubtedly true, and yet under similar circumstances the State has made provisions for just such a situation. In chapter 129 of the Eevised Statutes, the State Military and Uaval Code in section 8 of article 22, it is provided that the expense of defending a member of the militia who is prosecuted criminally for any act committed while in the performance of military duty shall be paid by the State, providing that the Attorney General should be first consulted in regard to the selection of the attorney for the defense. Unfortunately, however, for claimant, there is no such statute applicable to his case. The Attorney General is the law officer of the State, and the State can incur no expense for attorney’s fees without his special order. Under the circumstances we must reject the claim. Inasmuch as there is much equity and justice in the claim, we would reject it without prejudice were it not for the further fact that from the opinion in the Fergus case, above cited, it is apparent that the Legislature would have no authority to appropriate any funds to claimant under the facts in this case.

The claim is accordingly rejected.


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    W. M. Wilkinson v. State of Illinois.

      Opinion filed May 7, 1917.

    Fees and Salaries — payment of to civil service employee unlawfully discharged. An employee in the Classified State Civil Service, is entitled to payment of salary for the period of his discharge, when such discharge is unlawfully made.
    H. J. Slagle, for Claimant.
    Edward J. Brundage, Attorney General, for State.
   Claimant was chief engineer at the Jacksonville State Hospital oil April 30, 1915, and for several years prior thereto, and was a member of the classified service under the so-called Civil Service Law.

He had been required to submit to a so-called Efficiency Examination, and failing to receive the grade required by the Civil Service Commission was dismissed from service on April 15, 1915. At that time he was receiving a salary of $121.00 per month. He was reinstated on February 1, 1916. Had he been continuously employed, his salary beginning September 1, 1915, would have been $162.00 per month under a general order adopted by the Board of Administration, and approved by the Civil Service Commission. During the time he was absent from duty, he worked for the City of Jacksonville and earned $600.00. He now seeks to recover the amount he would have earned, had he been continuously on duty, $1,294.00, less the amount received from the City of Jacksonville, $600.00, or a total of $694.00.

Claimant contends that he was unlawfully discharged, in consequence of which he should be entitled to pay while off duty. Ho written charges had been preferred against him. In the case of Baird v. Stevenson, 270 Ill. 569, it was held that employees in the classified service could not be required to take examination as a test of their efficiency, and following the rendition of that opinion, the Civil Service Commission passed a resolution reinstating claimant to his position. The State, by the Attorney General, does not take issue with claimant on the merits of his claim.

Inasmuch as claimant was unlawfully discharged, it is the opinion of this Court that he should be paid for the time lost. Taking into consideration the amount of money earned during his absence from" duty, it is the opinion of this Court that claimant be awarded the sum of six hundred ninety-four and 00/100 ($694.00) dollars.


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    Carl P. Dennett and George F. Griffin, Executors of the Estate, of Thomas A. Griffin, Deceased v. State of Illinois.

      Opinion filed May 7, 1917.

    Inheritance Tax — refund of. Where an inheritance tax has been erroneously assessed, and paid into the State treasury, a refund of the excess so paid will be made.
    Scott, Bancroft, Martin & Stephens, and Zimmerman, Garrett & Randall, for Claimant.
    Edward J. Brundage, Attorney General, for State.
   Thomas A. Griffin, a resident of Boston, Massachusetts, died on August 12, 1914, leaving a will which was duly admitted to probate in the County of Suffolk, Massachusetts, wherein claimants were appointed executors.

Decedent owned certain real and personal property in Illinois, and was also the owner of 60,511 shares of common stock and 16,586 shares of the preferred stock of the Griffin Wheel Company, a Massachusetts corporation, which was doing business in Illinois, and owned property in Illinois. He was also the owner of 1,600 shares of the preferred stock of the Hnited States Steel Corporation, a New Jersey corporation, doing business in Illinois.

Ancillary probate proceedings were had in the estate of the decedent in the Probate Court of Cook County, Illinois, and an appraiser was' appointed by the County Judge of Cook County to determine the fair market value of the estate for the purpose of fixing the inheritance tax in the estate, on October 13, 1914. The appraiser’s report was filed with the County Judge on December 28, 1914, and ivas approved by the order of the County Judge, entered on December 2-8, 1914. On February 26, 1915, an appeal was taken from the order of the County Judge to the County Court of Cook County, and a final order was entered on April 19, 1916, and from that order an appeal was taken to the Supreme Court of Illinois on December 21, 1916. The Supreme Court of Illinois, in the case of People v. Dennett, reported in 216. Illinois Reports at page 43 reversed the order of the County Court in part and remanded the cause. Subsequently the case was rédocketed in the County Court of Cook County, and an order entered in accordance with the opinion of the Supreme Court. On the order of the County Judge, the Executors paid to the County Treasurer of Cook County, an inheritance tax of $51,933.70 on January 19, 1915, being the total amount assessed, $54,667.05 less five per cent for payment within six months after the death of the testator. This tax was assessed on the theory that the shares of stock of the Griffin Wheel Company were taxable under the Illinois inheritance tax law, because thirty-six per cent of the tangible property and assets of that corporation was located in Illinois, and that thirty-six per cent of the value of the shares were taxable in Illinois, and a like tax was fixed on fourteen per cent of the value of the stock in the United States Steel Corporation, on the theory that fourteen per cent of that corporation’s tangible assets were- located in Illinois. The tax so assessed was approved by the County Judge, and this part of the order urns appealed from the County Court, and it was modified to the extent that that court found that the tax should have, been levied on fifty per cent of the value of the stock in the. Griffin Wheel Company, and that the shares of stock in the United States Steel Corporation were not appraisable and taxable under the Illinois inheritance tax law.

The question in the Supreme Court was as to whether or not the shares of stock in the Griffin Wheel Company were taxable under the laws of Illinois, and that court held that this stock was not assessable, and the final order of the County Court of Cook County on January 13, 1917, made in conformity with the finding of the Supreme Court, found accordingly, and also found that the tax properly assessable against the estate of the decedent was $10,598.29.

As this Court has repeatedly held, that claimants having paid the tax within the six months period, which entitled them to a five per cent discount in the amount of payment, had the proper tax been assessed in the first instance, claimants would have paid $10,598.29, less 5%, or $10,068.38.

Claimants have done everything that should have been done to entitle- them to a refund of the excess tax paid. Appeals were taken and perfected within proper times, and claimants are entitled to a refund of the difference between the amount actually paid, and the amount that should have been paid, taking into consideration the fact that 5% wras deducted from the amount paid, for payment- within six months, and that 5% would have been deducted if the proper amount had been paid within six months.

The State, by the Attorney General, in its statement filed admits the validity of the claim and the regularity of all proceedings necessary to secure the refund.

It is consequently the judgment of this Court that claimants be awarded the difference between $51,933.70 and $10,068.38, or forty-one thousand eight hundred sixty-five and 32/100 ($41,865.32) dollars.


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    Fred Smith, Executor of the Estate of Thomas P. Smith, Deceased, v. State of Illinois.

      Opinion filed May 7, 1917.

    Inheritance Tax — refund of. A final order fry the County Court reversing the finding of the County Judge, and reducing the amount of inheritance tax due on an estate, entitled the claimant to a refund of the excess amount paid.
    George D. Smith, Judah, Willard, Wolf & Reichmann, and Zimmerman, Garrett & Rundall, for Claimant.
    Edward J. Brundage, Attorney General, for State.
   The facts in this case as stipulated between claimant and the State are as follows:

Thomas P. Smith, a resident of Cook County, died October 16, 1914, leaving a will which was admitted to probate in the Probate Court of Cook County, and Letters Testamentary were issued to Fred W. Smith as Executor. In 1901, decedent executed a certain trust deed, in and by which lie conveyed certain property to a trustee.

On April 12, 1915, the inheritance tax appraiser, previously appointed by the County Judge of Cook County, found the value of the decedent’s estate subject to inheritance tax to be $506,969.82, including in his estimate the value of certain estates created by the trust instrument executed by decedent in 1901.

The County Judge of Cook County duly entered an order approving the appraiser’s report. On April 14, 1915, claimant paid to the County Treasurer of Cook County, $8,872.43, which was the amount of the tax, $9,339.40, reduced bjr 5%, because of payment within six months of the death of decedent.

On June 5, 1915, an appeal was taken from the order of the County Judge to the County Court, and on April 27, 1917, the County Court entered an order reversing in part the finding of the County Judge, and fixing the inheritance tax at $4,336.13, on the theory that certain of the trust estate created by the aforesaid trust instrument was not assessable under the inheritance tax law.

This claim was filed in this Court on April 30, 1917, and appear-^ anee entered by the Attorney General.

There can be no question as to the correctness of the claim. Claimant has done all things required of him to be done to secure a refund, and is entitled to the difference between $8,872.43, and $4,119.32, which is the aforesaid sum of $4,336.13, reduced by 5%.

Claimant is accordingly awarded the difference between these two items, the sum of four thousand seven hundred fifty-three and 11/100 ($4,753.11) dollars.


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    Arthur J. Knight v. State of Illinois.

      Opinion filed May 7, 1917.

    Military and Naval — transportation for enlisted men — State not liable for. An enlisted member of the military or naval force of the State of Illinois, leaving the confines of the State on his own business, and not on authority of the State, is not entitled to a refund for transportation to point of mobilization.
    Arthur J. Knight, Pro se.
    Edward J. Brundage, Attorney General, for State.
   Claimant, a resident of the City of Koc-kford, was mustered as a private in Battery D, Illinois Field Artillery, in Chicago, on September 3, 1915. On June 19, 1916, this organization was called by the President of the United States for service on the Mexican border. On that day he was in Hanover, Xew Hampshire, and on June 20th, he received a telegram from the Captain of his organization, commanding him to report at the Armory at Chicago at once. He immediately went to Chicago by way of Springfield, Massachusetts, and Xew York City, and'was put to the expense of $34.43 in paying liis railroad fare.

By way of argument, claimant states that transportation of. enlisted men under military regulations should be paid to the point of mobilization, because transportation is paid from the place of discharge to the point of enlistment, and claimant also cites the Military and Xaval Code, section 149, which provides that transportation and subsistence for all officers and men on duty under sections 3, 4- and 5 of article 16, shall be furnished by the State. Section 3 provides for the pay of officers when in actual service of the State. Section 4 for the pay of enlisted men when in active service. Section 5, for pay of enlisted men in actual service at encampments. It is fair to presume that claimant voluntarily enlisted in this militia organization.

When he went outside of the State, he did so of his own volition, and with full knowledge of the fact that he might be called upon to report for the duty and service which he undertook to perform when he. joined the organization. He was not outside the State because the State required him to be. When he took it upon himself to go to Hanover,

Xew Hampshire, it was on his own private business and he could return at his own expense and of his own volition at any time, or having undertaken the obligations of a member of Battery D, he could be called upon to return when the State required his services.

In our view of the case, claimant was not on duty until he reported for duty at the appointed rendezvous, and there is nothing in the law which provides for the payment of expenses before actual performance of duty.

There is nothing in the law that we can find, nor is there anything in the military regulations that we have been informed of that would warrant the making of an award in this case, but on the other hand it is within the province of the Legislature to appropriate in this case, if it may so see fit. The claim appeals to one’s sense of justice,) and we do not feel inclined to preclude claimant be rejecting the claim. This claim is consequently rejected without prejudice, to the right of claimant to prevent his claim to the Legislature.


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    Barnard and Miller v. State of Illinois.

      Opinion filed May 7, 1917.

      Services — when payment will he made for. Services rendered under express authority of law, will be paid by the State.
    Miller, Starr, Brown, Packard & Peckham, for Claimants.
    Edward J. Brundage, Attorney General, for State.
   Claimants are engaged in the business of printing in Chicago, and printed certain briefs for the State in the case of People of the State of Illinois, e.r rel Charles S. Deneen, Governor, and William PI. Stead, Attorney General, plaintiff in error, v. Economy Light & Power Company, defendant in error, in the Supreme Court of the United States. The statement of accounts for this work was $1,157.29 and claimant received thereon $900.37, leaving due to them a balance of $256.92. The 49th General Assembly appropriated money to the Governor sufficient to pay this bill, and it was audited by the Department and Institution Auditor and found correct, but the particular item of appropriation was held invalid in the suit of Fergus v. Bussell, 270 Ill. 304.

There is no question but that the bill is correct and the services were performed under express authority of law, and it is the opinion of this Court that an award should be made.

We accordingly award to claimant the sum of two hundred fifty-six and 92/100 ($256.92) dollars.


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    John Huennig v. State of Illinois.

      Opinion filed May 12, 1917.

      Services — payment for toill he made — when. Services rendered by a person duly appointed to perform certain duties will be paid by the State, even though the Act embracing the appropriation for that purpose is held unconstitutional.
    T. J. Condon, for Claimant.
    Edward J. Brundage, Attorney General, for State.
   Claimant was appointed a member of the State Board of Examiners of Horseshoers for the State of Illinois, on February 8, 1915, and in pursuance of his appointment entered upon his duties and performed the services required of him until the first day of March, A. I). 1917.

The Supreme Court of the State of Illinois in the suit entitled Fergus v. Russell> et al, decided that the appropriation for the payment of salaries and fees of the Board of Examiners of Horseshoers, was, among other appropriations, unconstitutional.

Claimant continued to perform his services and on February, 1917, there was due him the sum of $280.00, which he has been unable to collect by reason of the decision in the Fergus case aforesaid.

It would be inequitable for the State to refuse to pay claimant for the services performed by him in this connection, and we are therefore of the opinion that he is entitled to the amount of his claim.

Claimant is accordingly awarded the sum of two hundred eighty and 00/100 ($280.00) dollars.


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    Anthony Koechley v. State of Illinois.

      Opinion filed May 12, 1918.

      Services — Huennig v. State, ante followed. The facts in this case are governed by the facts in the case of Jolm Huennig v. State of Illinois, supra.

    T. J. Condon, for Claimant.
    Edward J. Brundage, Attorney General, for State.
   This case is similar to the case of John W. Huennig in which case an opinion has been filed this date. For the reasons assigned in that case, tve make an aAvard to claimant in this case of two hundred eighty and 00/100 ($280.00) dollars.


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    American Missionary Association v. State of Illinois.

      Opinion filed May 12, 1917.

    Inheritance Tax — refund of made, when. Inheritance tax erroneously collected and paid into the State treasury will he refunded.
    Miller, Starr, Brown, Packard & Peckham, for Claimant.
    Edward J. Brundage, Attorney General, for State.
   Claimant is a charitable corporation existing under the laws of the State of New York, and as a. beneficiary under the will of Henry IV. Hubbard, deceased, makes claim for the refund of a portion of the amount paid by it as an inheritance tax in the matter of the estate of the decedent. The will of the decedent was probated on May 29, 1913, in the Surrogate’s Court of the County of New York, and State of New lrork, and later on Hovcniber 19, 1913, upon the report of the appraisers appointed by the County Judge of Cook County, Illinois, an order was entered by the said County Judge of Cook County, fixing the value of the estate devised to claimant at $60,723.16.

The order further provided that claimant was not entitled to any exemptions that the tax rate was 6% and that the total tax was $3,643.39.

Claimant in order to procure the 5% discount as provided by law in cases where tax is paid within six months after the death of decedent, paid the amount assessed against it less 5%, amounting to $3,-461.23. This amount was paid under protest.

In August, 1916, an appeal was taken from the order of the County Judge to the County Court, and upon a hearing the County Court modified the tax as assessed by the County Judge, determining the value of the interest passing to claimant at $57,910.66, and the tax thereon at $3,474.64.'

Claimant appealed from the order of the County Court to the Supreme Court of Illinois, and upon a hearing in the latter court, it was determined that the value of claimant’s interest was $37,008.22, and that the property transferred to it was taxable at the rate of 5%, amounting to $1,850.41, and that the amount of tax was legally payable on Hovember 19, 1913, the time when claimant made payment of the tax as assessed and fixed by the County Judge was $1,757.89, being the amount of gToss tax assessed, less the 5% discount.

From the above it is evident by the erroneous order entered by the County Judge in this matter, claimant was compelled to pay the sum of $1,703.34 in excess of what should have been paid, had the assessment been correct in the first instance.

This being the case, claimant is entitled to an award of $1,703.34. We accordingly make an award in favor of the claimant in the sum of one thousand seven hundred three and 34/100 ($1,703.34) dollars.


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    Michael Chambers v. State of Illinois.

      Opinion filed May 12, 1917.

      Damages — payment of. Private property taken or damaged for public use will be paid for by the State.
    Rosenthal, Kurz & Houlihan, for Claimant.
    P. J. Lucey, Attorney General, for State.
   During the year 1914, and for some years prior thereto, claimant owned a lot fronting on West Madison Street, Chicago, Illinois, upon which he had erected five one-story brick buildings.

Adjoining his lot to the west ivas a tract of land owned by the State, but there was a vacant strip of land about eleven feet in width, belonging to claimant extending from the Avest Avail of claimant’s most Avesterly building to the east line of the land owned by the State.

The State let a contract for the erection of an Armory on its land and the contractor in charge of the work, assuming that the State OAvned all of the vacant property Avest of claimant’s buildings, made excavation thereon although claimant had informed him that he OAvned the strip of land, extending eleven feet west from the Avest AA’all of his building.

The contractor made excavations on claimant’s property within a feAv feet of the Avest Avail of his building and as a result greatly damaged the same. The Avails cracked, the building sagged and fixtures within the building OAvned by claimant were partially destroyed. A concrete AA'allc running along claimant’s building to the Avest, aaus practically destroyed by reason of the excavation.

xifter repeated complaints by the claimant, the contractor placed his building on jacks where it remained for about fifteen months, and as a result, the building Avas in such shape that the business of claimant Avas practically destroyed.

One of the claimant’s other buildings Avas also damaged to such extent that the tenant who had been paying a monthly rental of $85.00 per month, was compelled to abandon the premises.

From the record before us there is no question but that the claimant is entitled to recover for the damages he has sustained, and in arriving at the amount we are forced to the conclusion that he suffered damages far in excess of the amount testified to by the contractor aa'Iio testified on behalf of the State.

While it is someAvhat difficult to arrive at an amount that aa-duM defiantly determine the amount of damages sustained, Ave are of the opinion that claimant is entitled to recover two thousand fiwe hundred and 00/100 ($8,500.00) dollars.


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    Michigan Boulevard Building Company v. State of Illinois.

      Opinion filed May 12, 1917.

      Liability — of State. Any act required to be performed under express authority of law creates a liability against the State for the expenses incurred by the officer or person required to perform such act.

      Same — when appropriation insufficient. An appropriation made for a specific purpose, the expenditure of which is under express authority of law, if insufficient for such purpose, does not relieve the State of the liability for the excess expense of performance.
    Allen G. Mills, for Claimant.
    Edward J. Brundage, Attorney General, for State.
   Claimant, a corporation organized and existing under and by virtue of the laws of the State of Illinois, is the owner of a certain building known as the Michigan Boulevard Building, Chicago, Illinois, having purchased the same on October 19, 1916, from Jarvis Hunt, et al, Trustees.

At the time claimant purchased the building in question, the Judges of the Appellate Court for the First District of the State of Illinois, were occupying rooms Nos. 122-1 to 1229, both inclusive, in said building under two certain leases.

The leases in question were authorized by an act of the General Assembly of the State of Illinois, approved June 2, 1877, whereby the Judges of the said Appellate Court of the- First District of Illinois, were authorized to rent suitable rooms in the City of Chicago for holding said Court, and for use of the officers thereof.

According to the terms of the leases, the rent for the period of April, May and June 1917, amounting to $1,803.75 is due and payable to claimant, but it appears that the amount appropriated for this purpose was not sufficient and there is no money on hand at the present time to pay the rent, which, is acknowledged by the State to be due.

Claimant as owner of the building is entitled to receive said rent, in accordance with the terms of the leases entered into on behalf of the State by the Judges of the Appellate Court for the- First District of Illinois, and this being true, we accordingly award claimant the sum of four thousand eight hundred three and 75/100 ($4,803.75) dollars.


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    Richard M. Hoe, Tracy Dows, Thatcher T. P. Luquer, James L. Mitchell, United States Trust Company of New York, Executors of the Last Will and Testament of Alexander Ector Orr, Deceased, v. State of Illinois.

      Opinion filed May 12, 1917.

    Inheritance Tax — refund of — when. Where a final order is entered on an appeal from the order of the County Judge fixing the amount of inheritance tax due from an estate, reducing the amount of tax found due, a refund of the excess amount so paid will be refunded.
    Short, Davis & Rust, for Claimants.
    Edward J. Brundage, Attorney General, for State.
   Claimants are the executors of the last will and testament of Alexander Ector Orr, deceased, who departed this life June 3, 1914, a resident of Brooklyn, Kings County, New York.

The decedent at the time of his death owned certain property Avithin the State of Illinois that was liable for inheritance tax assessment by the State.

On or about December 15, 1914, claimants applied for a transfer of the various stock OAAmed by the decedent, but before consent A\ras given by the Attorney General of the State of Illinois, it was agreed that claimants should deposit A\rith the Peoples Trust & Savings Bank of Chicago, the sum of four thousand íavo hundred fifty and 00/100 ($4,250.00) dollars, to guarantee the payment of such inheritance tax as might be levied.

On December 11, 1914, the County Judge entered an order fixing the amount of the tax to be assessed against the estate at $3,395.34.

The Peoples Trust and SaAdngs Bank at the request of the Attorney General, mailed a check to the County Treasurer of Cook County for $3,514.19, being the amount of said inheritance tax as levied, together AA'ith interest thereon from June 3, 1914, the date of decedent’s death.

Claimant appealed from the order of the County Judge to the County Court and upon a hearing the County Court entered its final judgment in said cause, fixing the amount of inheritance tax required to be paid at $2,096.59. This amount with interest thereon from •June 3, 1914, to June 4, 1915, the date AArhen the first tax assessed Aras paid to the County Treasurer, amounts to $2,170.34.

The difference betAveen $3,514.18, the amount paid by claimants and $2,170.34, the amount they should have paid in accordance with the final order óf the County Court is $1,343.84.

Claimants have pursued the necessary steps required by law to secure a refund of the amount due them in this matter, and it is therefore the judgment of this Court that they he aivarded one thousand three hundred forty-three and 84/100 ($1,343.84) dollars.


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    John J. Coffey v. State of Illinois.

      Opinion filed May 12, 1917.

      Services — when payment for will lie made. Services rendered by a person regularly elected or appointed will be paid for by the State even though the Legislature fails to make a regular appropriation therefor.
    Brown, Hay & Creighton, for Claimant.
    Edward J. Brundage, Attorney General, for State.
   Claimant was duly elected Secretary of State Board of Equalization on August 1, 1913, and has performed the duties of that office from the date of his appointment until the present time.

He was to receive $5.00 per day for eachf and every day he acted as such officer and was paid on that basis from the date of his election up to and including the 31st day of December, A. D. 1914.

From January 1, 1915, to and including June 30, 1915, a period of one hundred fifty-five days, he performed the duties of his office but did not receive pay therefor by reason of a decree in a chancery suit filed in the Circuit Court of Sangamon County, Illinois, by one Fergus in which it was held that the appropriation under which claimant was to receive his pay was invalid.

It is admitted that claimant performed the services as required by him under the law, and it would be inequitable to require Mm to serve the State in this capacity without compensation.

Claimant having performed the duties of this office for one hundred fifty-five days, he is entitled to receive pay therefor at the rate of $5.00 per clay, and we therefore award him the sum of seven hundred seventy-five and 00/100 ($775.00) dollars.


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    Thomas DeWitt Cuyler, Executor of the Last Will of Marie DeWitt Jessup, Deceased v. State of Illinois.

      Opinion filed May 12, 1917.

    Inheritance Tax — refund of. Inheritance tax erroneously collected and paid into the State treasury will be refunded.
    Rosenthal, Hamil & Wormser, for Claimant.
    Edward J. Brundage, Attorney General, for State.
   Claimant is the executor of the last will and testament of Maria DeWitt Jessup, who died on the 17tli day of June, A. D. 1914, a resident of the State of Xew York.

On June 14, 1915, the County Judge of Cook County, Illinois, entered an order approving the inheritance appraiser’s tax report, which fixed the tax on decedent’s property at $22,628.46.

On May 17, 1915, which was prior to the date of the entry of the order aforesaid, claimant for the purpose of securing the payment of tax which might be assessed against the estate, deposited with the Peoples Trust and Savings Bank of Chicago, to the credit of the inheritance tax officials in said proceedings, the sum of $30,000.00 and' they in turn paid to the County Treasurer of Cook County, under protest, out of said deposit, the sum of $23,986.17, being the amount of tax assessed by the order of the County Judge, with interest thereon at the rate of six per cent per annum from June 17, 1914, the date of the decedent’s death.

On August 15, 1915, an appeal was taken to the County Court from the order of the County Judge, fixing the tax aforesaid, and the County Court after making some deductions reduced the tax to $18,829.50.

A further appeal was taken to the Supreme Court of the State of Illinois, from the final order and judgment of the County Court of Cook County, which resulted in a reversal of the final order and judgment of said County Court, People v. Cuyler, et al 276 Ill. 72.

Later a final order was entered in the County Court of Cook County in accordance with the judgment and mandate of the Supreme Court. This final order provided that the total tax should he $14,907.87 which represents the amount of the final order and judgment of the $14,060.80 with interest thereon at the rate of 6% from June 17, 1914, the date of decedent’s death to June 14, 1915, the date of said payment.

Claimant having paid the sum of $23,986.17 in accordance with the erroneous order of the County Judge, instead of $14,907.87 the amount he should have paid, he is therefore entitled to a refund of the difference, amounting to $9,078.30.

We therefore make an award to claimant of nine thousand seventy-eight and 30/100 ($9,078.30) dollars.


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    Merritt Starr v. State of Illinois.

      Opinion filed May 12, 1917.

      Refunds — when made. Funds paid out in the performance of employment regularly made, for which the State receives the benefit will he refunded.
    Miller, Starr, Brown, Packard & Peckham, for Complainant.
    Edward J. Brundage, Attorney General, for State.
   Claimant by special appointment of the Governor of Illinois was appointed and served the State as attorney in a certain case in the Supreme Court of the United States, known therein as People of the State of Illinois on the relation, of Charles S. Deneen, Governor, and William H. Stead, Attorney General, plaintiffs in error v. The Economy Light and Power Company, Defendants in error.

That while acting as attorney aforesaid, claimant paid out for and on behalf of the State, the sum of $10.84, in connection1 with the prosecution of said case, and the State has never reimbursed him for this amount.

Fox the reasons set forth in the case of Bernard & Miller v. State, which opinion was filed at this term, we award to claimant the sum of ten and 84/100 ($10.84) dollars.


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    Matilda Jenca, a Minor by Frank Jenca, Her Next Friend v. State of Illinois.

      Opinion filed May 12, 1917.

    Respondeat Superior — doctrine of not applicable to the State. The rule of respondeat superior is not applicable to the State.
    J. W. D’Arcy, for Claimant.
    Edward J. Brundage, Attorney General, for State.
   Matilda Jenca, aged about seven years while crossing one of the busy streets at Joliet, Illinois, on the morning of October 15, 1916, was injured by being struck by an automobile operated by Miss Mabel Zimmer, whose father was at that time Warden of the Illinois State Penitentiary.

The petition of claimant states that the machine in question was owned by the State of Illinois, and was used by the Warden and his family for business and pleasure, and that the injury sustained by claimant was occasioned by the negligent manner in which the young lady operated the machine.

The State filed a demurrer setting forth, First: That the Doctrine of respondeat superior is not applicable to the State. Second: That it does not appear that the person driving the automobile mentioned in the petition was in the employ of the State at the time of the operation of. the automobile in question. Third: That the State of Illinois is not liable for the torts of third persons committed against one of its citizens.

This Court has repeatedly held that the doctrine of respondeat superior is not applicable to the State, and even though the party in charge of the automobile was an employee of the State, the State would not be responsible for her acts. This being true, it is unnecessary to consider this case further. The demurrer is sustained.


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    Clarence A. Burley, as Executor of and Trustee Under the Last Will and Testament of Elizabeth J. Whitney, Louisa Chapin Telling, Elizabeth Greene, Edward F. Chapin, Jr., and Mary W. White v. State of Illinois.

      Opinion filed May 16, 1917.

    Inheritance Tax — Burley et al, v. State ante followed. This case is governed by the facts in the case of Burley, et al v. State, supra.

    Clarence A. Burley, for Claimants.
    Edward J. Brundage, Attorney General, for State.
   Elizabeth J. Whitne)r, deceased, left the bulk of her estate in trust to be given to her four grandchildren. They were not to receive their respective shares until they attained the age of thirty. At the time of her death, none of said children had reached the age of thirty years, and the inheritance tax appraiser, assumed that only the eldest grandchild would reach that age, and accordingly fixed the tax on that basis, allowing but one exemption of $20,000.00.

The inheritance tax was paid on that basis within six months after the death of the decedent, which amounted to $414.83, after allowing the five per cent discount as provided by law.

It was agreed between the beneficiaries that the tax should be paid out of the general fund of the estate in order to protect the eldest grand child, and it was further agreed that upon recovery of any part of the tax, the same should be divided equally between them.

On June 30, 1912, Louisa Chapin Telling, the oldest .of the grandchildren reached the age of thirty years, and received her one-fourtli share of the estate. Having been allowed her exemption no claim arose as to her share of the tax as assessed.

Later, on September 5, 1914, Elizabeth Chapin Greene, the second oldest of the grandchildren reached the age of thirty years, and received her share of the estate. She accordingly filed a claim in this Court for the tax upon her exemption of $20,000.00, which would be $200.00 less the five per cent discount, amounting to $10.00, leaving a total of $190.00, with interest at the rate of 3% from the time of payment. Her claim was allowed by this Court in an opinion filed October 2, 1916.

On May 13,1916, Edward F. Chapin, Jr., attained the age of thirty years, and received his share of the estate. Having reached the age of thirty years, there is another exemption of $20,000.00, which should be allowed, upon which the tax would be $200.00, less the five per cent discount, amounting to $10.00, leaving a balance of $190.00 which should be refunded to claimants with interest thereon from March 30, 1911, being the date when the tax was paid.

For the reasons assigned in our former opinion in this case herein referred to, claimants are awarded one hundred ninety and 00/100 ($190.00) dollars, with interest thereon at three per cent from March 30, 1911.


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    Walsh Construction Company v. State of Illinois.

      Opinion filed May 16, 1917.

      Contracts — construction of. The court reviews the evidence as to the construction of the contract, and makes an award accordingly.
    Vause, Hughes & Kiger, for Claimant.
    Edward J. Brundage, Attorney General, for State.
   Claimant here seeks to recover for certain work done on the levees at Cairo. It entered into contract on December 31, 1913, with the Rivers and Lakes Commission for the doing of this work.

The claim is divisible into three parts. Under the first part, it was estimated in the contract that the amount of excavation would-be 29,400 cubic yards. Claimant excavated 19,308.1 cubic yards, and the Rivers and Lakes Commission allowed for the excavation of 10,997.5 cubic 3rards. The difference between claimant and the Rivers and Lakes Commission arose over the question as to whether or not the excavation should have had vertical or sloping sides. It is evident from the evidence that it was necessary to excavate with sloping sides. This is not an extra, and under the contract claimant is entitled to pay for the actual amount of the execution. The State does not contest the claim in this particular, and the claimant on this part should receive $5,657.96.

Another part of the claim for the difference in the cost due to the use of stone and sand instead of gravel, has been dismissed out of the case, and there remains now for consideration the claim for the maintenance of track connections. It appears that over a part of the work, the Illinois Central Railroad had certain tracks which had to be removed and replaced from time to time; removed so that the work could proceed, and replaced so that the railroad could switch its cars. For this part, claimant alleges that there is due it the sum of $2,726.84. In the specifications, claimant points out that it was the duty of the Rivers and Lakes Commission to provide the necessary right of way upon which the work is to be done. On the other hand, the State points out that the specifications provide that the plans are a part of the specifications, and that the work is to be made complete, and to the satisfaction of the Commission, and that claims for extra labor or material must be reported to the Rivers and Lakes Commission in writing at the time same is furnished, and must also be presented in writing at the end of the month, that nothing shall be paid for as extra labor that can be classified under any of the heads upon which unit, prices are fixed, that the written notices required on the part of the contractor are conditions precedent to any recovery oil its part for extra work, that whenever work is required to be done which was not contemplated, the Commission shall fix the prices, and the contractor shall abide by the same. It is also provided that in all questions regarding the value of extras, variations, allowances or deductions, or the violation of the contract, the decision of the Commission shall be final.

The Bivers and Lakes Commission decided adversely to the claims of claimant, based on this state of facts. 1

As we view this part of the claim it is for extras, upon which to entitle claimant to recover, the conditions precedent in the contract must have been complied with. The reports required of claimant were not made, so far as the record shows, and the Bivers and Lakes Commission, whose decision claimant agreed should be final decided adversely to claimant.

There remains nothing for us to do but reject this part of the claim, and it is accordingly the decision of this Court that claimant be awarded the amount of the first item, five thousand six hundred fifty-seven and 95/100 ($5,657.95) dollars.


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    City of Charleston v. State of Illinois.

      Opinion filed May 16, 1917.

      Liability — of State. The opinion of the Supreme Court governs the action of the Court of Claims, and an award is made accordingly.
    John T. Kincaid, for Claimant.
    Edward J. Brundage, Attorney General, for State.
   The City of Charleston has furnished water to the Eastern Illinois State Normal School since July, 1913, and claims payment for water furnished until April 1, 1917.

When the Normal School was located at Charleston, the City Council passed a resolution offering to give all the water required for fifty years for the consideration of $5.00, provided the school be located at Charleston.

In July, 1913, an ordinance was passed providing for the installation of water, meters, and a regular rate was charged to the school. This bill was not paid and the City threatened to disconnect the water. Following this, the school filed a Bill of Complaint in the Circuit Court of Coles County, praying specific performance and injunction to restrain the City from cutting off the water supply. A temporary injunction was ordered and the defendant demurred. The demurrer was sustained by the Circuit Court and in turn by the Appellate Court for the Third District, and the Supreme Court.

The Supreme Court in its opinion in the case, appearing in 271 Ill. at page 602, held that the City was without authority to make the agreement to furnish water.

Following the decision of the Supreme Court above cited to its logical conclusion, we must hold that the City of Charleston is entitled to recover the amount of its claim, and it is consequently the judgment of this Court that the claimant be awarded the sum of four thousand two hundred and 00/100 ($4,200.00) dollars.


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    Amos Sawyer v. State of Illinois.

      Opinion filed May 16, 1917.

      Compensation — to public officers. 'Statutes prohibiting extra pay to public officers, have no application to two distinct offices, positions or employments.
    Public Officers — may bold position or employment. An officer, in addition to the duties of his office, unless expressly prohibited by law, may hold an employment or position, when each has its own duties and compensations.
    E. A. Hardt, for Claimant.
    Edward J. Brundage, Attorney General, for State.
   Claimant ivas Chief Clerk of the ‘ State Board of Health for several years prior to March 30, 1913, and subsequent thereto. On March 30, 1913, the then Secretary of the Board died, and the next day the Governor directed the petitioner to assume the duties of the office of Secretary and appointed him “Acting Secretary.” He immediately entered upon the performance of the duties of that office and continued to act as both Secretary and Chief Clerk of the Board until April 14, 1914.

He had applied to the Civil Service Commission to- be relieved of his duties as Chief Clerk, but his application was refused. It is apparent from the record that he devoted a great deal of time to the performance of his duties, it requiring many hours of extra work.

The statute provides that the Secretary of the Board of Health shall be elected by the Board. There was no formal election, though the members of the Board severally told him to act.

In the interim between meetings of the Board, the Secretary performed all of its duties and exercised all of its powers, and among other things he granted licenses to practice medicine. In law, an acting secretary is a Secretary. We are not prepared to hold that claimant was not in fact the Secretary of the Board, to hold otherwise might indeed lead to serious consequences.

The position of Chief Clerk of the Board is not a statutory office, that of Secretary is.

Claimant having been Secretary of the Board, as we view it, the only question remaining for us is to decide as to whether or not he is entitled to a salary, having received his salary as Chief Clerk.

In the case of the United States v. Saunders, 126 U. S. 130, the Supreme Court of the United States has held that statutes prohibiting the allowance of extra pay or compensation to public officers have no application to two distinct offices,^ positions or employments, each of which has its own duties and compensations, and which offices may both be held by one person at the same time.

We do not question the right of claimant to have held both offices, positions or employment at the same time; as we view it, he held an employment and an office. Neither is this right questioned'by the State.

Under the authority above cited, we believe claimant is entitled to recovery, and is entitled to receive compensation from March 31, 1913, to April 14, 1914. The 48th General Assembly had appropriated $3,600.00 a year for the salary, and in addition to this the Board paid $150.00 a month. In our view of the case, the salary as fixed by law was $300.00 per month, and claimant is accordingly entitled to recover $3,750.00, the salary for twelve and one-half months.

We accordingly award claimant the sum of three thousand seven hundred fifty' and 00/100 ($3,750.00) dollars.