author: Chief Justice Damron Per Curiam.

text:
    (No. 3596
    Margaret Adams, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1942.

      Rehearing allowed March 11, 1942.

      Opinion on rehearing filed May 12, 1942.

    Rot A. Ptaoin, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court: .

The complaint in this case, filed March 18, 1941, asks an award of $1,232.82. It states that Margaret Adams was employed by the Department of Public Welfare at the Chicago State Hospital, Chicago, Illinois, as an attendant.

That on January 24, 1941, she was reporting for duty, had entered the grounds of said hospital, which are set off by a high fence, and gate. That she had proceeded some fifty or seventy-five feet inside of the main gate of said institution, and while walking on the sidewalk, which was slippery with ice, she suddenly slipped, and was thrown to the sidewalk and sustained injuries for which she should be paid under the provisions of the Illinois Workmen’s Compensation Act.

The file consists of the complaint and amendment thereto, transcript of the evidence, taken on June 6,1941, and abstract of same, also evidence of claimant taken on October 3, 1941, brief, statement, and argument of attorney for claimant and assistant attorney general for the respondent.

The evidence, taken on June 6,1941, shows that the claimant had been employed at said hospital for some length of time, prior to January 24, 1941, and was in charge of a ward housing approximately 150 patients and had two employees under her supervision. That on the last mentioned date at about 6:30 A. M., while going to work, and having passed the main gateway, which was the usual and customary entrance used by employees and after passing within the grounds from fifty to seventy-five feet inside the main gate, and while walking along on the sidewalk leading to her place of employment she approached a curve in said sidewalk, and starting around the curve both feet shot out from under her causing her to fall. She was unable to arise for some time, but finally pulled herself up by the use of a light post which was close by. Upon arising she discovered that she could not put her right foot to the ground. Another attendant came along and with his and other assistance she was taken to the gate house where she was placed on a stretcher and taken directly to the institution hospital. She was put to bed, given a hypodermic to quiet her pain, x-rays were made, and sand bags were put around her right limb, the site of the injury. On the following day the right femur was set by Dr. Samuel R. Rubert, who held the position of Consulting Orthopedic Surgeon at the Chicago State. She was kept off her feet for approximately three months without weight bearing.

The evidence further shows she reported for duty on Sunday, June 15, 1941, worked one shift and due to the swelling and pain in her right limb she was unable to return the following day. She remained away from her work thereafter until the sixth day of July, 1941. She has been working regularly for the respondent since that time. The record shows that due to the injury she was confined to her bed for five weeks, then for about three weeks was in a wheel chair for a few hours each day and then was compelled to go back to bed. Later she used crutches to get around. Her wages paid by the respondent amounted to $63.00 per month and one meal a day at the institution, valued by the Department of Public Welfare at the sum of $6.00 per month. In her attempt to get well she incurred a doctor bill which is due Dr. Samuel B. Bubert in the sum of $300.00; $3.00 to Dr. B. M. Fonner, $2.00 for an office visit, and her wheel chair rental was $5.00. In all she claims to have expended or become liable for $332.70 for medical treatment and medicines, of which $32.70 was paid by her leaving an unpaid bill of $300.00 due to the said Dr. Samuel B. Bubert. All hospital services were furnished by the respondent except the above enumerated items.

Claimant at the time she suffered the injury was fifty-one years of age, married but having no children under sixteen years of age.

Two points are to be decided, first whether or not the claimant was on duty at the particular moment of the occurrence, and if so whether or not she is entitled to an award for temporary and permanent partial incapacity or disability.

The issue raised in the record is whether the claimant’s employment had begun at the time of the accident, under the terms of the Workmen’s Compensation Act. This must be decided before an award shall be made or denied. The testimony shows that she had entered the grounds of the respondent, the place of the accident being some fifty to seven-five feet within the main gate when she slipped and fell. In the case of Indian Hill Country Club vs. Ind. Comm., 309 Ill. 271, the court said:

“It is not essential to the right to receive compensation that the employee should have been working at the particular time when the injury was received. The employment is not limited to the exact moment when he begins work and when he quits work. An injury accidentally received on the premises of the employer by an employee while going to or from his place of employment by a customary or permitted route, within a reasonable time before or after work, is received in the course of and arises out of the employment.”
Union Starch Co. vs. Ind. Commission, 344 Illinois 77.
Sullivan, et al., vs. State of Illinois, 10 C. C. R., 18.

We must conclude that at the time of the accident in question Margaret Adams was on the premises of her employer ; was at the immediate place her labors were to be performed ; was traveling a natural and permissible course included in the field of her labor; the accident occurred at approximately 6:30 A. M. and she was due on her job at 6:45 A. M. We believe the record sufficiently discloses that the accidental injuries arose out of and in the course of her employment, within the meaning of the Workmen’s Compensation Act.

The next question for this court to decide is the extent of the injury.

The evidence taken on June 6, 1941, discloses that Dr. Albert C. Field, called on behalf of the claimant, testified that he examined the claimant on May 23, 1941, and found the right leg was somewhat swollen and edematized. The right ankle measured 9i% inches and the left 8% inches; her right calf measured 13% and the left 13 inches; the right knee measured 16 and the left 15.% inches. He stated the foot was rotated somewhat outward and there was a restriction of movement in the hip and she walked with a decided limp, and was using a cane. There was some limitation of flection of the right knee, the capsule being somewhat thickened. He stated the weight bearing surface was somewhat altered, and that the x-rays disclosed a fracture of the cervical neck of the femur which was held in apposition, by two screws, which were in place at that time, and that the fracture line was fairly well healed. He stated that, in his opinion, based on reasonable. medical certainty that her disability at that time was a good 60 per cent of her right leg. There was no cross examination of this witness by the respondent.

Dr. Samuel E. Hubert, who stated he held the position of Consulting Orthopedic Surgeon at the Chicago State Hospital was called by the respondent. He stated he was called on the ease the day after the accident, and found she had sustained an intermuscular fracture of the neck of the right femur, which he treated by insertion of two screws through an incision over the trochanter. That to perform this operation he gave her a local anesthetic; .that she was kept off her feet for three months without weight bearing, and was then instructed to begin bearing weight on the limb. That she was a good patient and the result was a good one. He stated that at the time of the hearing, June 6, 1941, she had an excellent recovery up to that time and that her disability was not over 25 or 30 per cent. That she had some arthritic changes both in her knee and her hip, not the result of the accident. On cross examination he stated that the last x-ray showed good bony union.

Further testimony was taken on October 3, 1941, the claimant was called as a witness in her own behalf. She stated that she reported for duty on Sunday, June 15, worked one shift, and went home very disabled; she said her leg was quite swollen and she was not able to go back to work. It pained her considerably and interrupted her sleep. She was paid by respondent for this day. She further stated that she again reported for work on July 6, and has worked at the same occupation for which she is now being paid the same wage rate, and so far as the record is concerned is still an employee of the respondent. Nowhere in her evidence taken at this time is there any reference to her inability, if any, to do the work she formerly performed prior to the injury, and it must be assumed that she is performing satisfactory services for the respondent.

Her claim is made for compensation for both temporary and permanent partial disability. The burden of proof is on the claimant to show such disability, and to establish her right to compensation therefor, and this she has failed to do.. Where it appears that her earning capacity is apparently as great at the time of the hearing on such claim as before the accident, and that employee is fully able to perform the same duties no basis is shown upon which to estimate an award for permanent partial disability.

Where it appears that employee sustained accidental injuries arising out of and in the course of his employment, while engaged in hazardous employment, resulting in temporary total disability, an award may be made for compensation for same, in accordance with provisions of the Act, upon compliance with provisions thereof if the proof supports it.

Wiedner vs. State of Illinois, 10 C. C. R., 400.

From a consideration of the entire record we must conclude that the end of claimant’s total temporary disability was July 6, 1941, on which day she returned to work at the same wages and apparently has performed the same duties required of her prior to her accidental injuries.

Claimant’s regular salary was $63.00 plus $6.00) maintenance per month, making a total of Sixty-nine ($69.00) Dollars per month, or an annual salary of Eight Hundred Twenty-eight ($828.00) Dollars. This is an average weekly wage of Fifteen Dollars and Ninety-two Cents ($15.92), the ¡bate of compensation therefore would be Seven Dollars and Ninety-six Cents ($7.96) plus a ten per cent increase, as provided under Section Eight (8), Paragraph (L) of the Workmen’s Compensation Act, being Eight Dollars and Seventy-six Cents ($8.76).

From a consideration of the evidence the court finds the claimant is entitled to temporary total disability for a period of twenty-three (23) weeks, at the rate of Eight Dollars and Seventy-six Cents ($8.76), amounting to Two Hundred One Dollars and Forty-eight Cents ($201.48), from which must be deducted the sum of Fifty-one Dollars and Seventy Cents ($51.70) paid to claimant for non-productive work subsequent to said accident which leaves a balance of One Hundred Forty-nine Dollars and Seventy-eight Cents, ($149.78), plus Thirty-two Dollars and Seventy Cents ($32.70) for money expended for medicines, bandages, wheel chair and crutch rental, by the claimant, making a total sum of One Hundred Eighty-two Dollars and Forty-eight Cents, ($182.48). The bill shown by the evidence and filed herein in the sum of Three Hundred ($300.00) Dollars for services rendered to claimant by Dr. Samuel R. Hubert, was incurred with the approval of the respondent and is entitled to payment.

It is therefore ordered that an award be, and the same is hereby allowed for the payment of said bill in the sum of Three Hundred ($300.00) Dollars in favor of claimant for the use of Dr. Samuel R. Hubert. It is further ordered that an award be, and the same is hereby allowed claimant for temporary total disability sustained by her in the accident in question, in the sum of One Hundred Eighty-two Dollars and Forty-eight Cents ($182.48), which includes the sum of Thirty-two Dollars and Seventy Cents ($32.70), expended by her for the items above mentioned, making a total amount of Four Hundred Eighty-two Dollars and Forty-eight Cents ($482.48), all of which has accrued and is payable at the present time.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.

Supplemental Opinion on Rehearing.

Per Curiam.

On February 10, 1942 an award was entered in the above entitled cause in favor of claimant in the sum of $182.48 for temporary total disability and for $300.00 for the use of Dr. Samuel R. Rubert for medical services rendered to the claimant. Her claim for permanent partial loss of use of her right leg under the provision of Section (8), Paragraph (E) of the Workmen’s Compensation Act, was denied for the reason that the court was not convinced that she had proven, by a preponderance of the evidence, that she was entitled to same.

On February 27, 1942 a petition for a rehearing was filed by claimant asking leave to produce further testimony to support her claim for permanent partial loss of use of said right leg. This court granted the prayer of petitioner on the llth day of March, 1942. Pursuant to said order additional testimony was taken in Chicago on the 10th day of April, 1942, there being present the petitioner, Margaret Adams, Dr. Albert 0. Field, the attorney for the claimant, and the Attorney General representing the respondent.

Dr. Field testified that he had re-examined the claimant on the 25th day of March, 1942 and took an x-ray film on the same day, which was offered and received in evidence. From his re-examinátion of claimant and the reading of the x-ray film, and in answer to a hypothetical question he states that there has been no improvement in the condition of the right hip and leg of the claimant from his examination made on May 23, 1941. That in his examination of the claimant on March 25, 1942 that the x-ray taken on that day revealed that the fracture had not entirely healed; the hip, however, is still in place, being held in apposition by two screws that are about three and one-half (3%) inches in length. The x-ray, however, disclosed a deterioration of the condition of the claimant’s leg. The first x-ray taken on March 23, 1941 showed an area of increased density in the region of the right sacro-iliac joint, and showed the area to be hardened. The latter x-ray taken March 25, 1942 revealed the hardened area' had been absorbed, that is, a process of bone deterioration had been going on, and showed that the claimant actually had a hole in the bone of her sacro-iliac region. He stated that this condition and the loss of use of claimant’s leg are permanent in nature and are the direct result of the accident suffered by claimant on January 24, 1941.

At the original hearing on June 6, 1941, Dr. Field also testified for claimant, stating that in his opinion, on a thorough examination of claimant and the study of an x-ray film taken of her right hip joint that she had suffered a sixty (60) percent disability, of her right leg, and that he was now of the opinion that her condition had not improved since he testified at the first hearing.

The claimant also testified on the 25th day of March, 1942, she stated she had been working steadily since July 6, 1941, but now her work consists principally of supervision of two other employees. That prior to the accident she walked around the ward and now she is not able to do so, she does most of her work from the desk. That there is constant pain in the limb, and hip, and if she stands very long there is a swelling; that she does not have the free action of her right leg as she formerly had, and that change of weather affects it very much; that she is now unable to run, and that she is constantly falling to her right side. She is unable to turn in bed at night without pain, and that when she does she has to pull herself over by the edge of the mattress and that she is unable to stoop and pick up things from the floor on her right side.

There was no evidence in rebuttal offered on behalf of respondent. On the basis of the evidence submitted as to the present condition of the claimant’s right leg, the court finds that a sufficient legal basis for an allowance of an additional award for permanent partial disability of claimant’s right leg has been shown. Nokomis Coal Co. vs. Industrial Commission, 308 Illinois, 609; Swift & Co. vs. Industrial Commission, 302, Illinois, 44.

That an award of sixty (60) percent loss of use is a fair and reasonable percentage to allow claimant as the result of the injuries suffered by her while in the employment of the respondent on the 24th day of January, 1941, as provided in Paragraph (E) of Section (8) of the Workmen’s Compensation Act.

Claimant’s salary was $63.00 plus $6.00 maintenance per month, making a total of $69.00 per month, or an annual salary of $828.00. This is an average weekly wage of $15.92. The rate of compensation therefore would be $7.96 plus a 10 percent increase, as provided under Section (8), Paragraph (L) of the Workmen’s Compensation Act making her compensation rate $8.76.

It is therefore ordered that a supplemental and additional award be entered herein in the sum of $998.64, calculated as follows: Under the Compensation Act the full loss of use of claimant’s right leg would be 190 weeks; sixty percent thereof would be 114 weeks to be paid to her at the rate of $8.76, her weekly compensation rate. Forty-five weeks having accrued the claimant is entitled to the sum of $394.20, in a lump sum, leaving a balance due her of $604.44, payable in sixty-nine weekly installments of $8.76 per week.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the general revenue fund in the manner provided for in such Act.


source: Caselaw Access Project

author: Fisher, J.

license: Public Domain

text:
    (No. 3530
    Claude Bowen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

    Claimant, pro se.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Fisher, J.

Complaint was filed July 29, 1940, alleging that claimant mailed a certified check for Fifty Dollars ($50.00) to the Illinois Liquor Control Commission in payment of a retail distributors beer license for the period 1939-1940, said check being accepted by the Illinois Liquor Control Commission; that he also paid and secured an Illinois Wholesale Distributors Beer License for the same period; and further that an amendment to the State Liquor Laws made it necessary to have a retail dealers distributors license in addition to the wholesale distributors license to sell beer at retail to private homes.

Claimant requests that the Fifty Dollars ($50.00) paid to the Illinois Liquor Control Commission in payment of retail distributors beer license for the period 1939-1940, and not required by the Illinois Liquor Control Commission, be returned to him.

Complaint further alleges that claimant made complaint to the Illinois Liquor Control Commission in September, 1939, for a refund, but was referred by them to the Court of Claims. That no other person or corporation has any interest in the claim.

Despondent has filed a motion to dismiss the claim on several grounds; that the complaint does not set forth a claim which the State of Illinois as a sovereign commonwealth, should discharge and pay in that claimant seeks an award representing the refund covering' license fees for the period 1939-1940, during which period of time the law providing* for such license was changed; that an award should not be made solely on the grounds of equity and good conscience; that the complaint does not comply with Buies 4(a) and 6(a) of the Court of Claims.

The complaint does not state sufficiently and concisely the facts upon which the claim is based and does not quote all the averments of facts necessary to state a cause of action at law or in equity as is required by Buie 4(a); and does not include a bill of particulars, as required by Buie 6(a). Claimant, however, may amend his complaint in this respect, and for that reason it is necessary to consider the remaining grounds of respondent’s motion.

The same questions involved in this case were presented to this court in the case of Val W. Steil mid Matt S. Bene, doing business as Aurora Beverage Co., Claimant, vs. State of Illinois, Respondent, No. 3528, and for the reasons stated therein the claim cannot be allowed.

Where a license fee is paid in an amount that is legally due and payable, and after the period for which the license is paid has already commenced the law is then amended reducing the amount or eliminating the license fee altogether and the amendment by which the law is changed is not made retroactive, in such cases the excess amount paid cannot be recovered back. In the absence of a contrary expression by the Legislature, it is reasonably presumed that it was contemplated that the reduction was to take effect at the beginning of the next license period after the Act went into effect.

Respondent’s motion to dismiss is therefore sustained, and claimant given thirty days in which to amend his complaint; and in the event claimant declines or fails to so amend, this order dismissing the claim shall become final.


author: Chief Justice Damron

text:
    (No. 3605
    Maurice Bremer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

    Theodore W. Hinds, for claimant.
    George F. Barrett, Attorney General; Ben F. Railsbaok, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Claimant, Maurice Bremer, filed his complaint in this court on the 1st day of May, 1941, wherein he avers that he is a resident of Pontiac, Livingston County, Illinois, and that on the 19th day of December, 1938, while employed by the Department of Conservation of the State of Illinois, as investigator, and while in the exercise of due care and diligence in regard to his health and physical well being, and while in th'e course of his employment on the said day was injured while changing a tire on an automobile then being used by claimant in the performance of his duties for the respondent.

That as a result of said injury aforesaid, claimant’s hand was permanently injured and partially disabled for all time, and that in particular the thumb of the hand was and is rendered useless, and that the whole hand, as a proximate cause therefrom, has but a fraction of its former facility for doing the duties for which it had grown accustomed, and that such injury will materially affect claimant’s chances for private employment, if such should become necessary in such lines of work to which he had become accustomed, and experienced.

That at the time of said injury claimant was being paid a salary by the respondent in the sum of One Hundred Ten ($110.00) Dollars per month. That all doctor and hospital bills were paid by the Department aforesaid. Claimant asks damages against the respondent in the sum of Five Hundred ($500.00) Dollars, for permanent damages sustained as aforesaid.

This action was not commenced in this court until May 1, 1941.

Paragraph (6) of Section (6) of the Court of Claims Act provides as follows:

“The Court of Claims shall have power to hear -and determine the liability of the State for accidental injury or death suffered in the course of employment, by an employee of the State, such determination to be made in accordance with the rules prescribed in the Act, commonly called the ‘Workmen’s Compensation Act,’ the Industrial Commission being hereby relieved of any duties relative thereto.”

We must, therefore, consider Section (24) of the Compensation Act, and this section provides that:

“No proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident, provided that in any case, unless application for compensation is filed with the Industrial Commission within one year after the date of the injury or within one year after the date of the last payment of compensation, the right to file such application shall be barred.”

The respondent did not pay the claimant any compensation during the period of his recovery.

In the case of the City of Rochelle vs. Industrial Commission, 332 Ill. 386, the court held:

“The making of a claim for compensation as provided in Section (24) of the Compensation Act is jurisdictional and a condition precedent to the right to maintain proceedings under the Act, and whether a claim for compensation has been made is a question of fact, to be determined as any other similar question.”

Again, in Lewis vs. Industrial Commission, 357 Ill., 309, it was held that:

“The making of a claim for compensation within the statutory period is jurisdictional and a condition precedent to the right to maintain a proceeding under the Compensation Act.”

This complaint shows on its face that the purported injury of claimant occurred on the 19th day of December, 1938, and the complaint was filed in this court on the 1st day of May, 1941, more than one year subsequent to said purported injury.

Under the authorities herein cited this court has no jurisdiction in this case, and an award is accordingly denied.


text:
    (No. 3699
    Burroughs Adding Machine Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

    Claimant, pro se.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Claimant seeks an award in the amount of $25.80. The stipulation between the parties hereto provides that the report of the Director of Insurance, dated March 27, 1942, shall constitute the record in this case.

The claim is for services rendered by the claimant company, on adding machine equipment used in the Department of Insurance, of the State of Illinois.

The services were rendered in accordance with the invoice, a copy of which is attached. The complaint has as a part thereof, a bill of particulars showing the services were furnished by the claimant to the respondent between January 1,1941, and July 1,1941, and should, therefore, be covered by the appropriation which lapsed September 30, 1941.

It appears from the report of the Director of Insurance that the invoices for the services were forwarded on July 1, 1941, but through an inadvertence were shown to be for such services rendered during the period of July 1, 1941, to January 1, 1942, instead of the period of from January 1, 1941, to July 1, 1941, and appeared to be in advance of the period for which such services were furnished rather than at the, end thereof.

This was called to the claimant’s attention, but the new invoices were not forwarded before the appropriation had lapsed on September 30, 1941.

The report of the Director of Insurance states that the services called for in the service agreement were rendered by the Company.

We have held in numerous cases that where services have been properly rendered to the State, and a bill therefor has been submitted within a reasonable time, but the same was not approved and vouchered for payment before the lapse of the appropriation from which it is payable, without any fault or neglect on the part of the claimant, an award for the reasonable and customary value of the services will be made, where at the time the expenses were incurred there were sufficient funds remaining unexpended in the appropriation to pay for the same. Rock Island Sand & Gravel Co. vs. State, 8 C. C. R., 165; Wabash Telephone Company vs. State, 10 C. C. R., 211.

An award is therefore entered in favor of the claimant for the sum of $25.80.


author: Eckert, J.

text:
    (No. 3540
    Carroll Distributing Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

    Claimant, pro se.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Eckert, J.

Complaint was filed in this case on September 6, 1940, alleging:

“In July of 1939, we were informed that we didn’t need retail license to sell heer when such beer was not sold on our premises and was not sold in less quantity than case or keg and heer delivered to purchaser’s home was not for resale.
“We asked for refund and received reply that they would make refund but were unable to get appropriation necessary from Legislature.”

To this complaint respondent has filed a motion to dismiss.

The complaint on its face is entirely insufficient to state a cause of action. Furthermore, it fails to comply with Rules 4(a), 5(a),- 5"(b), and 6(a) of this court.

Respondent’s motion to dismiss is therefore sustained, and claimant given thirty days in which to amend its complaint; in the event claimant declines or fails so to amend, this order dismissing the claim shall become final. .


text:
    (No. 3697
    Continental Oil Company, (Del.), Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

    Claimant, pro se.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Claimant seeks. an award in the amount of $8.14. A stipulation between the parties hereto provides that the report of the Division of Highways shall constitute the record in this case, which report is dated April 6, 1942.

This claim is for gasoline furnished to the Division of Highways or División of Police, during the months of February, April and June, 1941, and should therefore be covered by the appropriation which lapsed September 30,1941.

It appears from the report of the Division of Highways that the invoices were originally scheduled at that time by the claimant, but through various causes had not been paid due to no negligence or fault on the part of the claimant, until after the lapse of the appropriation, and at the time the indebtedness was incurred, and at the time said appropriation lapsed, there remained therein an unexpended balance sufficient to have paid such bills.

This case comes within the rule that:

“Where claimant has rendered services or furnished supplies to the State on the order or request of an official authorized to contract for the same, and submits a bill therefor within a reasonable time, and due to no negligence or fault on the part of claimant same is not approved and vouchered for payment before the appropriation from which it is payable lapses, an award for the reasonable and customary value of the services or supplies will be made where, at the time the obligation was incurred there were sufficient funds remaining unexpended in the appropriation to pay for the same.” Rock Island Sand & Gravel Co. vs. State, 8 C. C. R., 165.

Since the report clearly indicated that the persons ordering the merchandise had the authority to do so and that they were furnished by claimant, and were as represented, and that the prices charged were as agreed upon at the request of the Division of Highways or Division of Police is a sufficient showing for an award.

The claims appearing to be legal and just, an award is therefore made for the payment of same in the sum of Eight and 14/100 Dollars ($8.14).


text:
    (No. 3577
    Meta Christiansen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

    George D. Carbary, for claimant.
    George F. Barrett, Attorney General; Egbert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

Complaint was filed on January 15, 1941, in which claimant seeks an award for personal injuries received when she was assaulted by Vivian Denton a paroled inmate of the St. Charles School for Boys, at St. Charles, Illinois.

Complaint further alleges that said Vivian Denton was on probation and had been placed in the home of claimant and her husband by the Parole Officer of the St. Charles School for Boys; that she was taken to the hospital and attended by Dr. F. M. Marstiller of Geneva, Illinois, and that as a result of said injuries she has been incapacitated and permanently injured. That she is 78 years of age. That she has not received compensation for said injuries, and makes a claim for the amount of Ten Thousand Dollars ($10,000.00).

The record in this case consists of the complaint, motion of the Attorney General, for respondent, to dismiss the complaint, and statement, brief and argument filed on behalf of respondent on motion to dismiss.

There is nothing in the record which would indicate a legal basis on which an award could be made in this case. There does not appear to be any contract with the State, nor was claimant employed by the State, for a consideration, to take care of the parolee. Claimant, therefore, does not come under the Workmen’s Compensation Act. Even if an officer or agent of the respondent had been negligent in placing the paroled inmate in the home of claimant, this would afford no legal basis on which to allow the claim, as this court has repeatedly held that the rule of respondeat superior does not apply as against the State.

The Attorney General, for the respondent, also points out that claimant has not complied with paragraph A of Buie 6 of the Court of Claims, inasmuch as claimant has not filed a bill of particulars. This defect in the pleadings could be cured by amending the complaint, but inasmuch as this court has denied the claim on its merits, there is no necessity of doing so.

Bespondent’s motion to dismiss is sustained, and the claim is hereby dismissed.


text:
    (Nos. 3624, 3625 and 3628, Consolidated
    John M. Dole, No. 3624, Virgil J. Guimond, No. 3625 and George W. Johnson, No. 3628, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

    Shapiro & Lauridsen, for claimants.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Eckert, J.

During the month of August, 1939, the Consolidated Construction Company and the Permanent Construction Company were engaged in certain construction work at the Manteno State Hospital, a public institution owned and operated by the State of Illinois. Claimant, George W. Johnson, was then in the employ of the Permanent Construction Company, and claimants, John M. Dole and Virgil J. Guimond, were in the employ of the Consolidated Construction Company. The complaints allege that while so employed and working at the Manteno State Hospital, claimants drank water furnished and supplied for drinking purposes from the wells of the hospital; that the water was contaminated and impure, and contained disease germs and typhoid baccilli; that as a result of drinking this water they became ill with typhoid fever, were unable to work for a long period of time, and incurred doctor, hospital, and nursing bills; that as a result of the illness they suffered permanent impairment of their health. Bach of the claimants asks damages in the amount of $5,000.00, and in addition, an award for medical services and supplies in the following amounts: John M. Dole, $250.00, Virgil J. Guimond, $800.00, and George W. Johnson, $200.00. The claims are before the court on respondent’s motion to dismiss.

None of "the claimants was an employee of the State; they were all employees of independent contractors, so that they do not come within the provision of the Workmen’s Compensation Act. The complaints contain no allegation of any contractual relationship between claimants and respondent, contain no allegation of any applicable statutory or constitutional provision, and contain no allegation of any legal or equitable duty or obligation. They contain no allegation of any breach of duty, and they are insufficient to state a cause of action in tort.

Furthermore, the State, in the maintenance of the Manteno State Hospital, is engaged in a governmental function, and when so engaged is not liable for the negligence of its officers, servants, or agents. The doctrine of respondeat superior does not apply. Hardware Mutual Casualty Company vs. State of Illinois, 11 C. C. R. 300.

Awards can be made by this court only in those cases where claimants would be entitled to redress against the State either at law or in equity, if the State were suable. Unless a claimant can bring himself within the provisions of) a law giving him the right to an award, he cannot invoke the principles of equity and good conscience. Crabtree vs. State, 7 C. C. R. 207; Garbutt vs. State, 10 C. C. R. 37.

Bespondent’s motion to dismiss is therefore sustained, and claimants are given thirty days in which to amend their complaints; in the event they decline or fail so to amend, this order dismissing the claim shall become final.


text:
    (No. 3620
    Eva Green, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

    L. Allan Watt, for claimant.

      George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Eckert, J.

■Eva Green, the claimant, has been continuously employed as an attendant at the Jacksonville State Hospital, a public institution owned and operated by the State of Illinois under the direction of the Department of Public Welfare since October, 1934. The institution has its own electric generating plant, its own water plant, operates mechanical machinery including sharp cutting tools, jig saws, mechanical planers, mechanical meat grinders and slicers, and uses numerous machines in connection with its laundry.

On August 28, 1940, claimant was directed to make a search for a patient who had escaped from the hospital grounds. While riding with her superior in an automobile driven by an employee of the hospital, and while searching for the escaped patient, the automobile in which claimant was riding collided with another automobile, and claimant received a fractured skull, a brain concussion, two fractured ribs, and body bruises. She was taken to the hospital of the institution where she remained a patient until September 29, 1940. For several months thereafter she suffered severe headaches and was unable to keep any food on her stomach. This condition, however, gradually improved, and she was able to return to work on August 1st, 1941. The medical testimony clearly establishes the fact that claimant’s incapacity was a result of injury received in this accident. There was no permanent injury.

Claimant’s earnings at the time of the accident were $63.00 per month and maintenance of the value of $24.00 per month, or a total of $87.00, and her earnings for the year preceding the accident were $1,044.00, or an average weekly wage of $20.08, and a weekly compensation rate of $10.04. She has incurred the following bills for necessary medical attention: Dr. J. Y. Burbank, $54.00; Dr. Harold S. Bowman, $9.00, of which claimant has paid $7.00; and Dr. Garm Norbury, $10.00. These charges are reasonable for the services rendered. She received pay for non-productive work from August 28, 1940, to October 1, 1940, in the amount of $69.09.

Under Section 3 of the Workmen’s Compensation Act, the provisions of that Act apply automatically to the State when it is engaged in any of - the enterprises therein enumerated and which are declared to be extra-hazardous. The State, in the operation of the Jacksonville State Hospital, is engaged in such an extra-hazardous enterprise. Miele vs. State of Illinois, 9 C. C. R. 170; Lynch vs. State of Illinois, 9 C. C. R. 290. The enterprise being extra-hazardous, all employees of the institution come within the provisions -of the Act irrespective of whether or not they themselves are directly exposed to the hazard. Ascher Bros. vs. Industrial Commission, 311 Ill. 258; Illinois Publishing Company vs. Industrial Commission, 299 Ill. 189. At the time of the injury the claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and it is clear that the accident arose' out of and in the course of claimant’s employment.

Claimant is therefore entitled to have and receive from the respondent the following sums, to-wit:

(1) The sum of $54.00 for the use of Dr. J. Y. Burbank for and on account of medical services.

(2) The sum of $2.00 for the use of Dr. Harold S. Bowman for and on account of medical services.

(3) The sum of $10.00 for the use of Dr. Garm Norbury for and on account of medical services.

(4) The sum of $7.00 reimbursement for moneys expended for medical attention, Dr. Bowman.

(5) The sum of $10.04 per week for a period of 48 1/7 weeks, or the sum of $483.35; since this injury occurred subsequent to July 1st, 1939, the award must be increased ten per cent or $48.34, making a total of $531.69; from this latter amount must be deducted the sum of $69.09 heretofore paid to claimant, leaving a balance of $462.60.

Award is therefore entered in favor of the claimant for the sum of $535.60, all of which is accrued and is payable forthwith.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30th, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.


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    (No. 3532
    Blanche Lampkin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

    Edwin H. Cooke, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This claim was filed on August 13,1940, seeking an award of One Hundred ($100.00) Dollars.

The complaint alleges that on or about March 13, 1940, claimant took into her home one Howard Birrell, an inmate of the Illinois Soldiers and Sailors Children’s School at Normal, Illinois, a State charitable institution under the jurisdiction of the respondent in accordance with the custom of said school in boarding out inmates in private homes, and under the usual contract with the school in such case.

That the said inmate, Howard Birrell, after having lived in claimant’s home approximately two days, did, on or about March 15, 1940, escape from her home, unlawfully and feloniously taking with him the sum of Sixty-one ($61.00) Dollars, which he found in the claimant’s home, said money being the property of the claimant. She asks an award for this sum plus Thirty-nine ($39.00) Dollars attorneys fees for filing and prosecuting this claim.

The record in this case consists of the complaint, bill of particulars, affidavit of claimant, motion of respondent to dismiss, statement, brief and argument on behalf of respondent supporting its motion to dismiss, and claimant’s reply thereto.

Claimant seeks this award under Paragraph 372a, of Chapter 23, Illinois Revised Statutes, 1939 — This Statute has reference to payment of damages to property, or for damages resulting from property being stolen . . . caused by an inmate who has escaped, etc. Howard Birrell, was not an escaped inmate — he was in claimant’s home by andjwith her consent, under contract with the State.

The State in the exercise of its governmental functions is not liable for the negligence of, or the acts of inmates of its charitable institutions, and a claim based on such negligence or such acts is without legal foundation and must be denied. Balding vs. State, 11 C. C. R., 128.

The Court of Claims has jurisdiction to recommend an award only where the State would be liable in law or in equity in a court of general jurisdiction if it were suable. Crabtree vs. State, 7 C. C. R., 207; Berg vs. State, numbers 3524 and 3625 Court of Claims decided March 11, 1942; Rowley vs. State, 3639, Court of Claims decided February 10, 1942; Reaber vs. State, 3631, Court of Claims decided March 11, 1942.

There is no theory of law upon which to base any legal liability on the part of the State for the act of inmates of State institutions, in the absence of a specific law making it so liable.

There being no legal liability on the part of the State we have no authority to allow an award. The motion of the Attorney General is therefore allowed and the complaint dismissed.


author: Chiee Justice Damron

text:
    (No. 3326
    Charles and Clara Longden, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

    Hogan & Co ale, for claimants.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chiee Justice Damron

delivered the opinion of the court:

Claimants, Charles Longden and Clara Longden, seek an award in the amount of $1,000.00. The complaint alleges in substance that the claimants are the owners, as joint tenants, of the property described in the complaint, and designated as 1016 East Park Street. That said property is located in the city of Taylorville, Illinois, and is improved by a frame dwelling house which is rented by the claimants and that East Park Street is the street over which State Bond Issue Route No. 48 passes through a portion of said city. That in the construction of said State Bond Issue Route No. 48 it was necessary to construct a subway under the Wabash Railroad in front of claimants ’ property rendering it very inconvenient and dangerous to enter claimants ’ property from the front or East Park Street, the appropriate place to enter said property. They allege said road construction adjacent to said property was done without compensation of any kind to them, and that the doing of said act as aforesaid resulted in taking their property without due process of law and in damaging the private property of claimants for public use without compensation. That by reason of such act they claim to have been damaged in the amount of $1,000.00, and that they have no redress for said wrong except in the Court of Claims and therefore pray the consideration of the Court of Claims and a determination of the damages sustained.

The Attorney General files a motion to dismiss said complaint for the following reasons:

1. That claimants’ complaint does not allege that claimants were the owners of the property alleged to have been damaged at the time of the construction which is alleged to have resulted in damage to their property.

2. That part of the property described in said complaint was dedicated by them to the respondent for public use in connection with the identical public improvement which the • claimants allege to have been the cause of the damage they claim to have suffered.

Attached to said motion to dismiss is an affidavit in support of said motion by M. K. Lingle, Engineer of Claims, Division of Highways, of the Department of Public Works and Buildings of the State of Illinois and a photostatic copy of a deed of dedication duly signed, sealed, and acknowledged by the claimants as husband and wife, which is a part of the property described in said complaint, which deed of dedication is on record in the recorder’s office of Christian County, Illinois, being recorded in Book 165 of Deeds, Pages 82-83, as document number 97382, bearing date of November 2, 1928.

The court has carefully examined the complaint, affidavit and photostatic copies of the purported deeds of dedication, and finds that at the time of the construction of said improvement the claimants were the owners of the property described in said complaint, and designated as 1016 East Park Street. We further find that prior to said improvement the claimants executed a deed of dedication to the respondent for a valuable consideration and that at the time of filing of the .complaint herein the title to said described real estate was vested in the claimants.

A cause of action for consequential damages to property affected by a public improvement accrues when the work is done. Chicago & Eastern Ill. R. R. Co. vs. McAuley, 121 Ill. 160; Consumers Co. vs. City of Chicago, 223 Ill. App. 132; Horney vs. State, 9 C. C. R. 354; Nierstheimer vs. State, 9 C. C. R. 365.

Where owners dedicate property for public use in connection with public improvement, the law conclusively presumes that the consideration for the dedication is based, not only on the value of the land dedicated but also any damages sustained to contiguous land of the owner by reason of the improvement. Lepski vs. State, 10 C. C. R. 170; Baber vs. State, 9 C. C. R. 115; Siekman vs. State, 10 C. C. R. 286.

Examination of the photostatic copy of the deed of dedication of right-of-way for public road purposes executed by claimants prior to the commencement of said construction shows consideration of $1.00 in hand paid by the respondent and “the benefits resulting from the maintenance of the public highway, herein referred to.” There is no allegation in the complaint that the respondent failed to follow the plans and specifications in constructing said improvement, and the court must presume that they were followed.

The Attorney" General argues that the claimants have no right to recover in this because of the conveyance and dedication to the State by the claimants, which has the same effect as a judgment in a condemnation proceeding, and bars the claimants from a recovery, and cites C. R. I. & Pac. Ry. Co. vs. Smith, 111 Ill. 363, wherein the court said:

“We regard the deed from Burcky, for the public use of this railroad, as having the same effect upon the rights of the parties, with respect to lot 11, that a condemnation of the same land for such public use would have had— the one being a voluntary conveyance made for a public use, and the other amounting to a statutory conveyance for such use. Had this right-of-way been acquired by condemnation, Burcky would have had made to him compensation for the value of the strip of land one hundred feet wide taken, and also an assessment of all the damages to the residue of lot 11 to result from the operation of the railroad. The rule is that the appraisement of damages in a case of condemnation embraces all past, present and future damages which the improvement may thereafter reasonably produce. Mills on Eminent Domain, See. 216, and cases cited; Chicago and Alton R. R. Co. vs. Springfield and Northwestern R. R. Co., 67 Ill. 142; Keithsburg and Eastern R. R. Co. vs. Henry, 79 id. 290.”

As we view the record herein, no award can be allowed in this case because of the conveyance by claimants to the State of the right-of-way, that having the same effect as a condemnation of the same land for such public use would have had, the one being a voluntary conveyance made for public use and the other amounting to a statutory conveyance for public use, the rule being that each or either embraces all past, present and future damages which the improvement may thereafter reasonably produce.

Under the law, the motion of the Attorney General must be sustained, and complaint dismissed, which is done accordingly.


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    (No. 3327
    Herbert Longden and Lula Longden, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

      Rehearing denied September 9, 1942.

    Hogan & Coale, for claimants.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Claimants state that they are the owners, as joint tenants in the following described real estate to-wit :

The East fifty-one and one-half (51%) feet of the West one hundred eight (108) feet of the South one hundred forty-two (142) feet of the East half (E%) of Out Lot One (1) in Wilkinson’s Second Addition to Taylor-ville, Christian County, Illinois.

which property is designated as 1015 East Park Street, Taylorville, Illinois, and is improved by a frame house and garage, and has been and is used now by claimants as and for their home.

That said property is bounded on the east side by Snodgrass Street, a public street in said city, which street runs north and south, and formerly ended at Park Street now the street over which State Bond Issue Route 48 passes through said city.

That during February, 1934, the respondent constructed a subway under the Wabash Bailroad on Park Street in said city on what is designated as State Bond Issue Boute 48 construction Sections 134S and 134SB. The work was completed and opened to traffic in October, 1934. Claimants say that in the construction of this subway under the tracks of the Wabash Bailroad that it became necessary to excavate deeply under said railway, and that said excavation continued in front and beyond claimants’ property; that in the construction of it, Snodgrass Street was closed where it formerly entered Park Street, and it became impossible for claimants to enter their property by way of Park Street, and they are now compelled to go a great distance further than formerly, and are greatly inconvenienced thereby.

That said Snodgrass Street was closed without legal authority, and without consent of the claimants and the closing of Snodgrass Street, and excavation in front of claimants ’ property was done without compensation of any kind to claimants, and resulted in taking property of claimants without due process of law, and in damaging the property of claimants for public use without compensation. They ask that an award be entered in their favor for $1,000.00.

The Attorney General files a motion to dismiss the complaint and attaches thereto an affidavit of M. K. Lingle, Engineer of Claims, Division of Highways, Department of Public Works and Buildings of the State of Illinois, together with a photostatic copy of a deed of dedication signed and sealed by Herbert Longden and Lula Longden, his wife, which said deed of dedication is duly recorded in the recorder’s office of Christian County, Illinois, in book 165 of Deeds, Pages 80-81 as document number 97381 dated November 7, 1928.

The facts in this case are similar to Charles Longden and Clara Longden number 3326 in which an opinion was filed at the May term of this court.

The consideration for the deed of dedication in this case was for $1.00 in hand paid, and for “the benefits resulting from the maintenance of the public highway. ’ ’ By examining the description as set out in the complaint and the land described in the deed of dedication it. is found that the land described in Paragraphs (1) and (2) in the claimants’ complaint includes the land dedicated and represents real estate holdings of the claimants on the north side of Park Street (S. B. I. Route 48) at the address designation of 1015 East Park Street, Taylorville, Illinois.

Further this complaint does not allege that the claimants were, or either of them was the owners of the property during the time, or any part of the time, that the subway under the Wabash Railroad referred to in the complaint was being constructed.

As was said in Charles and Clara Longden, number 3326, “Where an owner dedicates property for public use in connection with public improvement, the law conclusively presumes that the consideration for the dedication is based not only on the value of the land dedicated but also any damages sustained to contiguous land of the owner by reason of the improvement. Lepski, Admr. vs. State, 10 C. C. R. 170; Lamp vs. State, 6 C. C. R. 349; Baber vs. State, 9 C. C. R. 115; C. R. I. & Pac. Ry. Co. vs. Smith, 111 Ill. 363; Atterbury vs. C. I. & S. L. Ry. Co., 134 Ill. App. 330; Siekman vs. State, 10 C. C. R. 286.

The right to a cause of action for consequential damages to property affected by a public improvement is in the owner of the property at the time the work was done or the improvement constructed. Chicago & Alton R. R. Co. vs. Maher, 91 Ill. 312 (314); Chicago & Eastern R. R. Co. vs. Loeb, 116 Ill. 206 (216); Penn. Mutual Life Ins. Co. vs. Heiss, 141 Ill. 35; Northshore R. R. Co. vs. Payne, 192 Ill. 239 (247); Horney vs. State, 9 C. C. R. 354.

Under the deed of dedication the claimants forever released the respondent from all damages of every nature and description that might be occasioned upon or to their property described in said deed, by reason of the construction and maintenance of S. B. I. Route 48, under said deed the claimants are barred from any right to an award by this court.

The motion of the Attorney General is sustained, and the complaint is dismissed.


text:
    (No. 3545
    Julius Mallergren and John Mallergren, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

    Thomas P. Reep, for claimants.

      George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Fisher, J.

Complaint was filed October 23, 1940, alleging that claimants on the 19th day of July, 1939, paid to the Illinois Liquor Control Commission the sum of Fifty Dollars ($50.00) in payment of a retail distributors beer license for the period 1939-1940; that they also paid for and secured an Illinois wholesale distributors license for the same period; and further that an amendment to the State Liquor Laws no longer made it necessary to have a retail dealers distributor license in addition to the wholesale distributors license to sell beer at retail prices to private homes.

Claimants request that the Fifty Dollars ($50.00) paid to the Illinois Liquor Control Commission in payment of retail distributors beer license for the period 1939-1940, and not required by the Illinois Liquor Control Commission, be returned to them.

Respondent has filed a motion to dismiss the claim on several grounds; that the complaint does not set forth a claim which the State of Illinois as a sovereign commonwealth should discharge and pay in that claimant seeks an award representing the refund covering.license fees for the period 1939-1940, during which period of time the law providing for such license was changed; that an award should not be made solely on the grounds of equity and good conscience; that the complaint does not comply with Rules 4(a), 5(a), 5(b) and 6(b) of the Court of Claims. The contention of the respondent is correct in that complaint fails to comply with said rules, but as claimants may wish to amend their complaint in this respect, it is necessary to consider the remaining grounds of respondent’s motion.

The same questions involved in the case at bar were presented in Val W. Steil and Matt E. Benz, doing business as Aurora Beverage Co., claimant, vs. State of Illinois, respondent, No. 3528, and Claude Bowen, claimant, vs. State of Illi nois, respondent, No. 3530, and for the reasons therein stated the claim cannot be allowed.

Respondent’s .motion to dismiss is therefore sustained, and claimants given thirty days in which to amend their complaint ; and in the event claimants decline or fail to so amend, this order dismissing the claim shall become final.


text:
    (No. 3574
    W. T. Middleton, Doing Business Under the Name and Style of W. T. Middleton Coca Cola Bottling Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

    Ward & Ward, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Fisher, J.

Complaint was filed January 6, 1941, alleging that claimant on July 17, 1939, paid Fifty Dollars ($50.00) to the Illinois Liquor Control Commission for a retailers alcoholic liquor license for the period 1939-1940; that he also paid for and secured an Illinois wholesalers alcoholic liquor license for the same period; and further that an amendment to the State Liquor Laws no longer made it necessary to have a retailers alcoholic liquor license in addition to the wholesalers alcoholic liquor license to sell beer at retail to private homes.

Claimant requests that the Fifty Dollars ($50.00) paid to the Illinois Liquor Control Commission in payment of the retailers alcoholic liquor license for the period 1939-1940, and not required by the Illinois Liquor Control Commission, be returned to him.

Complaint further alleges that claimant made complaint to the Illinois Liquor Control Commission, for refund, but was referred by them to the Court of Claims.

Respondent has filed a motion to dismiss the claim on several grounds: that the complaint does not set forth a claim which the State of Illinois as a sovereign commonwealth, should discharge and pay in that claimant seeks an award representing the refund covering license fee for the period 1939-1940, during which period of time the law providing for such license was changed; that an award should not be made solely on the grounds of equity and good conscience.

The same questions involved in this case were presented to this court in the case of Val W. Steil and Matt E. Benz, doing business as Aurora Beverage Co., claimant, vs. State of Illinois, respondent, No. 3530, and for the reasons therein stated the claim cannot be allowed.

Respondent’s motion to dismiss is therefore sustained, and claimant given thirty days in which to amend his complaint; and in the event claimant declines or fails so to amend, this order dismissing the claim shall become final.


text:
    (No. 3521
    Eugene Peter, et al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

    Allen H. Schultz, for claimants.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This complaint was filed June 17, 1940, on behalf of seventeen claimants located at various places throughout the State, each requesting a refund in the amount of $50.00.

The complaint alleges that claimants were, or had been for some time prior to July 1, 1939, engaged in the wholesale purchase and distribution of beer, and each had obtained a distributor’s license, or an importing distributor’s license, as provided by the Illinois Liquor Control Act, for the fiscal period commencing July 1, 1939, and expiring June 30, 1940.

That in addition each claimant applied for, and obtained a retailer’s liquor license, which covered the same period, and for which the fee was $50.00. That each claimant obtained such retailer’s liquor license because he engaged in selling or delivering beer in not less quantities than by the case or keg, to the home of a consumer for the latter’s use or consumption at such home.

The complaint further alleges that the retailer’s liquor license issued to each one of them became effective July 1, 1939, and expired June 30, 1940. That in the latter part of July, 1939, Governor Henry Horner, Governor of the State of Illinois, signed an amendment to the Illinois Liquor Control Act which amended Article (6), Section (3).

Claimants assert that the amendment above referred to became retroactive to July 1, 1939, and consequently the retailer’s license obtained- by each of the claimants was unnecessary. They further say that since the bill was not signed until the latter part of July it was necessary for the claimants to obtain retailer’s liquor license in order to comply with the Illinois Liquor Control Act during the intervening period, that is, between July 1, 1939, and the date on which the Governor signed the bill. Also that claims for a refund have been made by the respective claimants to the Illinois Liquor Control Commission, and that said commission informed the claimants that it would be impossible for it to grant any refunds, inasmuch as there was no appropriation made by the Legislature for such refunds, and further advised that these claims be filed in the Court of Claims.

Therefore, claimants believe that in view of the above facts it is just and equitable that this court recognize their claims in the sum of $50.00 each, and that a refund be ordered by this court.

The Attorney General files a motion to dismiss the complaint on the following grounds:

(a) That claimants’ complaint does not set forth a claim which the State of Illinois, as a sovereign commonwealth, should discharge and pay in that claimants seek an award representing the refund of license fees covering the period July 1, 1939, to July 1, 1940, during which period of time the law providing for such license was changed.

(b) That an award should not be made solely on the grounds of equity and good conscience.

(c) That the complaint does not comply with Buies 5(b) and 6(a) of the Court of Claims.

The case comes to this court on the complaint, motion, brief, statement and argument of the respondent.

Upon reading the complaint the court finds that it does not conform to rule 5(b) and 6(a) of the Court of Claims, but since the complaint could be amended in these respects to conform to the rules, and since, as hereinafter pointed out, no award could be made on this claim on the merits, such omissions are totally immaterial.

The claimants admit the license period for retailer’s liquor license began on July 1, 1939; each claimant further admits that he was engaged in selling and delivering beer in such quantities as to make a retailer’s liquor license necessary on July 1, 1939, until the date when the amendment to Article (6), Section (3) 'of the Illinois Liquor Control Act was signed by Governor Horner.

Paragraph (6) of the complaint reads as follows:

“That this amendment signed by the Governor became retroactive to July 1, 1939, and consequently, the retail license obtained by the claimants was unnecessary. However, in view of the fact that the bill was not signed until the latter part of July, it was necessary for the claimants to obtain a retail license in order to comply with the Illinois Liquor Control Law during the intervening period, that is between July 1, 1939, and the date on which the Governor signed the bill.”

The Attorney General cites Board of Education vs. Morgan, 316 Ill. 143, which is controlling in this case. In that case the court said, in discussing this very question:

“A proposed act of the General Assembly, upon its introduction in either house, is called a bill, and during its progress through the two houses, with its various readings, references and amendments, it remains a bill, a house bill or a senate bill, as the case may be — but when it has finally passed both houses it has become an act of the General Assembly, though before it becomes a law it requires the approval of the Governor, who may by his veto require its reconsideration by the General Assembly, and it cannot take effect until the first day of July next after its passage except in case of emergency, as provided in Section 13. It may, however, become a law before the first day of July, for Section 16 of Article 5 provides that every bill passed by the General Assembly shall, before it becomes law, be presented to the Governor, and if he approve he shall sign it, and thereupon it shall become a law. A bill as soon as signed by the Governor becomes a law, but it does not become effective until the first day of July following its passage. (People vs. Inglis, 161 Ill. 256.) Since the Governor did not sign the bill until after the first day of July it did not become a law on that date and therefore could not then take effect. When he did sign it on July 2, it did become a law. ‘Until’ means ‘up to the time of’ and as the period of time to July 1, had already elapsed when the Act was signed, it took effect at the same time as it became a law. Both requirements must be met before the act takes effect — the coming of the first day of July and the approval of the Governor — and it is immaterial which comes first. When the two things combine then-the act takes effect.”

Likewise, the State Government Act (Ill. Rev. Stat., 1941, Chap. 127, Par. 171) would bar a recovery for refund of these license fees. The claimants could have protected themselves by notice and protest as provided in said Act. Where one pays a license fee, without any compulsion or duress, which the law would not compel him to pay, such payment is voluntary and made under a mistake of law and cannot be recovered. Oswald Jaeger Baking Co. vs. State, 11 C. C. R. 119; Sacony-Vacuum Oil Co. vs. State, 11 C. C. R., 149; Central States Dist. vs. State, 11 C. C. R. 417; Madera Wineries & Dist. vs. State, 11 C. C. R. 632.

This court has repeatedly held that the Legislature in establishing its Court of Claims merely provided a forum in which claims against the State might be heard, and that the court cannot properly recommend an award unless there exists some legal basis upon which the- State, if it were suable in a court of law might be held liable.

Under the facts recited in the complaint no award could be properly allowed by the court, and the motion of the Attorney General is therefore allowed and the claim dismissed.


text:
    (No. 3688
    Bessie J. Rentfro, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

    Claimant, pro se.
    George P. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Fisher, J.

This claim was filed in this court on February 19, 1942, by claimant, Bessie J. Rentfro, of Ziegler, Illinois, on her own behalf as widow of Robert R. Rentfro, deceased.

The complaint states that Robert R. Rentfro was 58 years of age at the time of his death and had no children under 16 years of age; that on January 14,1942, while employed by the Division of Highways, State of Illinois, District No. 9, Maintenance Branch, the headquarters of which are located at Carbondale, Illinois, he was working on S. B. I. Route 148. about 2 miles south of Ziegler, Illinois, assisting in the filling of a slide by means of hauling and dumping debris into a fill on which the highway was located. He dismounted from the truck after it had stopped and while walking across the pavement for the purpose of flagging traffic an automobile being driven along the pavement struck said Robert R. Rentfro and killed him instantly. That an ambulance was called to the scene, but claimant does not have knowledge as to whether this was paid for by the State.

Claimant further alleges that at the time of the accident said deceased was being paid by the Division of Highways at the rate of 60c per hour for 8 hours a day.

The record under consideration consists of claimant’s complaint, stipulation by the parties hereto, including a report of the Division of Highways, and respondent’s statement, brief and argument, the claimant’s having been waived.

Under Rule 21 of this court, the report of the Division of Highways filed in this case is prima facie evidence of the facts set forth herein.

The said report of the Division of Highways dated March 3, 1942, confirms the'maimer in which the accident occurred. It states that on January 14,1942, on S. B. I. Route 148 about 2 miles south of Ziegler, Illinois, the deceased was part of a gang filling in a slide; that about 3:30 P. M. the deceased dismounted from a truck owned by the Division of Highways which had just stopped at the site of filling and walked across the highway for the purpose of flagging traffic temporarily while the fill was being dumped. An automobile being driven by Marshal Morgan of Marion, Illinois, struck Bobert B. Bentfro as he crossed the highway and killed him. That A. D. Pierce, maintenance patrolman and immediate superior of Bobert B. Bentfro, and L. H. Winemiller, truck driver, were witnesses of the accident. The report further shows that at the time of the fatal accident the deceased was in the course of his employment and also that said accident arose out of his employment. It is not disputed that claimant was fully dependent upon deceased for her support.

Upon a full consideration of this case the court finds it has jurisdiction of the parties hereto and the subject matter; tlhat respondent had proper notice of the accident and death of claimant’s intestate; and application for adjustment of claim was filed in apt time as provided under Section 24 of the Act.

As an employee of the State, engaged in maintenance work, the deceased was entitled to the benefits of the Workmen’s Compensation Act, and his widow would likewise be entitled to such benefits. Prom the report of the Division of Highways as to the work in which deceased was engaged and the occasion for his being at the place at the time at which the accident occurred, it would appear that there could be no question that the claimant’s deceased husband’s death arose during the course of and out of his employment. It also appears from the report of the Division of Highways that the decedent at the time of his death had no children under the age of 16 years. The question of hospitalization and medical services does not enter into this claim because the decendent’s death was practically instantaneous, and the cost of transportation to the hospital has already been paid by the respondent.

Since the decedent’s death occurred practically instantly, no question of temporary total disability compensation arises in this claim.

The report of the Division of Highways shows that during the year immediately prior to his death, the deceased, Bobert B. Bentfro, and Joe Messavage, the predecessor of the deceased, as first helper to the maintenance patrolman on Maintenance Section 941, a part of Highway District 9, with headquarters at Carbondale, had been paid the sum of Twelve Hundred Seventy-Three and 40/100 Dollars ($1273.40), exclusive of overtime. This would mean an average weekly wage of Twenty-Four and 48/100 Dollars ($24.48), and a weekly compensation rate of Twelve and 24/100 Dollars ($12.24), to which must be added ten (10) per cent under Section 8 (1) of the Workmen’s Compensation Act, making a total of Thirteen and 46/100 Dollars ($13.46) weekly compensation.

Under Sections 7(a) and 7(k) of the Workmen’s Compensation Act, for the benefit of the widow, Bessie J. Rent-fro, the court finds an award justified in the amount of Four Thousand Four Hundred Dollars ($4,400.00), consisting of the item of Four Thousand Dollars ($4,000.00), maximum for the widow under Section 7(a), plus ten (10) per cent of this total, or Four Hundred Dollars ($400.00), as provided by amendment to the law passed in 1941 as to accidents occurring subsequent to July 1st of that year and found in Section 7(k), making a total amount of Four Thousand Four Hundred Dollars ($4,400.00).

An award is hereby made in favor of claimant, Bessie J. Rentfro, in the sum of $4,400.00, payable at the rate of $13.46 per week. The amount of $228.82 has accrued as earned compensation for seventeen (17) weeks from the date of death to May 13, 1942, and claimant is therefore entitled to the payment at this time of the sum of $228.82; future monthly payments to be made to her for her use on the basis of $13.46 per week for three hundred nine (309) weeks until the further sum of $4,159.14 has been paid to her, with an additional final payment of $12.04, making a total of $4,400.00; such payments being subject to the terms of the Workmen’s Compensation Act of Illinois.

Jurisdiction of this cause is hereby retained for the purpose of making such further orders as may from time to time be necessary herein.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being' by the terms of such Act, subject to the approval of the G-overnor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided for in such Act.


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    (No. 3673
    Martin Root and Herman J. Root, Doing Business as Root Brothers Supply Company, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

    Loren Sullivan, for claimants.
    George F. Barrett, Attorney General; Ben F. Rails-back, Assistant Attorney. General, for respondent.
   Eckert, J.

On December 22, 1941, claimants filed their complaint in this court alleging that the 61st General Assembly of the State of Illinois, by Act approved July 17, 1939, created an Afra-Merican Emancipation Exposition Commission and made an appropriation for its use; that members of the Commission were appointed in accordance with the provisions of the Act, and that thereafter the Commission appointed the Diamond Jubilee Exposition Authority to manage the affairs of the American Negro Exposition for whose aid the Afra-Merican Emancipation Exposition Commission had been created. The complaint further alleged that the Diamond Jubilee Exposition Authority in turn hired one Erik Lindgren as Director of Exhibits, and that at the request of said Erik Lindgren, claimants furnished certain materials and supplies for the use of the Exposition Commission to the value of $738.49, less credit in the amount of $83.00 for materials returned. Claimants state that although they presented their bill on August 1st, 1940, and subsequently thereafter, to the Diamond Jubilee Exposition Authority, to Colonel William J. Warfield, Secretary of the Afra-Merican Emancipation Exposition Commission, and to the Administrative Auditor of the State of Illinois, the sum of $655.49 remains due and unpaid. It appears from the complaint that all of the appropriation for the use of this Commission was not expended, and that the appropriation lapsed on September 30th, 1941, with more than $11,000.00 unexpended.

Respondent has filed a motion to dismiss the claim on the ground that the complaint does not show compliance with Section 3 of the Act creating the Afra-Merican Commission and on the ground that the complaint fails to comply with paragraph (b) of Rule 5 of the rules of this court.

This latter contention is correct. The complaint fails to state, as is required by Rule 5, whether or not any third person or corporation has any interest in the claim presented. This failure to comply with an important and salutary rule is sufficient ground to sustain respondent’s motion to dismiss. Claimants, however, may wish to amend the complaint in this regard and for that reason it is necessary to consider the remaining portion of respondent’s motion.

Section 3 of the Act creating the Afra-Merican Emancipation Exposition Commission provides as follows:

"The exposition authorities shall prepare an estimate prior to the first day of each month of the expenditures to be made during the succeeding month and shall submit the same for the approval of the Speaker of the House of Representatives and the President of the Senate or such persons as they may designate to act in their stead, and no expenditure shall be made from the sums appropriated by this Act unless the same are approved as hereinabove provided for.”

The complaint shows no compliance or attempted compliance with this section of the Act. The question thus presented is whether this section is merely directory or whether it is a mandatory provision and an express limitation on the power conferred.

In Green and Sons Company vs. State of Illinois, 9 C. C. R. 218, Section 13 of the Illinois Waterway Act, which required the Department of Public Works and Buildings to give public notice before entering into any contract which involved the expenditure of $5,000.00 or more, was held to be a mandatory provision for the benefit of the public and an express limitation on the right of the Department to enter into a contract. The court there held that any contract made in violation thereof was void, and that no recovery could be had on the basis of quantum meruit for the reasonable value of services rendered pursuant to such contract.

In the case of Illinois Central Railroad Company vs. State of Illinois, 10 C. C. R. 493, this court followed the decision of the Green and Sons Company case and held that whoever deals with persons exercising a special statutory power does so with notice of the limitation of that power.

Furthermore, statutes delegating powers to public officers must be strictly construed, and all parties interested must look to the statute for the grant of power. Diederich vs. Rose, 228 Ill. 610. Section 3 of the Act creating the Afra-Merican Emancipation Exposition Commission clearly provides that no expenditure be made from the appropriation for the Commission without the express approval of the Speaker of the House and the President of the Senate, or of • such persons as they might designate to act in their stead. It was the obvious intention of the Legislature thus to restrict and limit expenditures made for the appropriation of this Commission.

The claimants in this case were bound to know the extent of the powers of the Commission or its agents, and were bound at their peril to know whether or not the expenditure an question had been approved. Every pre-requisite to an exercise of a statutory power must actually precede its exercise. Dement, et al. vs. Rokker, et al., 126 Ill. 174.

Section 3 of -the Act creating the Afra-Merican Emancipation Exposition Commission must therefore be held to be a mandatory provision and an express limitation on the power conferred by the Act. The complaint failing to show compliance with this section is insufficient to support an award by this court.

Respondent’s motion to dismiss is therefore sustained, and the claimants given thirty days in which to amend their complaint; in the event claimants decline or fail so to amend, this order dismissing the claim shall become final.


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    (No. 3528
    Val W. Steil and Matt E. Benz, Doing Business as Aurora Beverage Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

    Allen H. Schulz, for claimant,
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Eckert, J.

Complaint was filed in this case July 17, 1940, alleging that claimant, for sometime prior to the fiscal alcoholic liquor license period commencing July 1, 1939, had been engaged in the wholesale purchase and distribution of beer, and obtained a distributor’s license as provided by the Illinois Liquor Control Act, for the fiscal period commencing July 1, 1939, and expiring June 30, 1940. The complaint further alleged that claimant also obtained a retail license covering the same period because claimant engaged in selling and delivering beer in not less quantity than by the case or keg to the home of a consumer for the latter’s use or consumption at such home; that the retail liquor license was applied for by claimant between July 1, 1939, and the latter part of July, 1939.

By an amendment to Article 6, Section 3 of the Illinois Liquor Control Act, signed by the governor of the State of Illinois in the latter part of July, 1939, a distributor was permitted to deliver beer in not less quantity than by the keg or case to the home of a consumer for consumption by the latter at such home without the additional retail license. Claimant alleges that this amendment became retroactive to July 1, 1939, and that consequently the retail license which it had obtained was no longer necessary; that in view of the fact that the bill was not signed until the latter part of July, it had been previously necessary for it to obtain the retain license to comply with the Illinois Liquor Control law during the intervening period; that on the facts it is just and equitable that an award be made herein to claimant in the sum of $50.00, the annual retail license fee.

Respondent has filed a motion to dismiss the claim on the several grounds: that the complaint does not set forth a claim which the State of Illinois, as a sovereign commonwealth, should discharge and pay in that claimant seeks an award representing the refund of license fees covering the period July 1, 1939, to July 1, 1940, during which period of time the law providing for such license was changed; that an award should not be made solely on the ground of equity and good conscience; and that the complaint does not comply with Rules 5(b) and 6(a) of the Court of Claims.

This latter contention is correct; the complaint fails to state, as is required by Rule 5(b), whether or not any third person or corporation has any interest in this claim, and does not include a bill of particulars as is required by Rule 6(a). Claimant, however, may wish to amend the complaint in this respect, and for that reason it is necessary to consider the remaining grounds of respondent’s motion.

This court has held in a long line of decisions that an award can not be made solely on the basis of equity and good conscience. Awards can be made by this court only in those cases where claimants would be entitled to redress against the State either at law or in equity if the State were suable. Crabtree vs. State, 7 C. C. R. 207; Garbutt vs. State, 10 C. C. R. 37.

From the complaint it appears that the license period for a retail license began on July 1, 1939, and that claimant was then engaged in selling and delivering beer in such quantities as to make a retail license necessary until the amendment to Article 6, Section 3 of the Illinois Liquor Control Act was signed by the Governor. Claimant admits the necessity for complying with the law during the intervening period, that is between July 1, 1939, and the date on which the Governor signed the bill. It claims, however, that the amendment was retroactive. This contention is erroneous.

“A proposed Act of the General Assembly, upon its introduction in either house, is called a bill, and during its progress through the two houses, with its various readings, references and amendments, it remains a bill — a house bill or a senate bill, as the case may be — but when it has finally passed both houses it has become an Act of the General Assembly, though before it becomes a law it requires the approval of the Governor, who may by his veto require its reconsideration by the General Assembly, and it cannot take effect until the first day of July next after its passage except in case of emergency, as provided in Section 13 (Article 4 of the Constitution). It may, however, become a law before the first day of July, for Section 16 of Article 5 (of the Constitution) provides that every bill passed by the General Assembly shall, before it becomes law, be presented to the Governor, and if he approve he shall sign it, and thereupon it shall become a law. A bill as soon as signed by the Governor becomes a law, but it does not become effective until the first day of July following its passage. (People vs. Inglis, 161 Ill. 236.) Since the Governor did not sign the bill until after the first day of July it did not become a law on that date and therefor could not then take effect. When he did sign it on July 2' it did become a law. ‘Until’ means ‘up to the time of,’ and as the period of time to July 1 had already elapsed when the act was signed, it took effect at the time as it became a law. Both requirements must be met before the Act takes effect — the coming of the first day of July and the approval of the Governor, and it is immaterial which comes first. When the two things combine then the Act takes effect.” Board of Education vs. Morgan, 316 Ill. 143.

It thus appears that it was necessary during the intervening period, between July 1st, 1939, and the date on which the Governor signed the bill, for claimant to have a retail license, and that the amendment was not retroactive. There is nothing in the law to indicate that a reduction or elimination of a license fee, during the period for which the license has already been obtained, eliminates the necessity for such license prior to the time of the change or justifies a refund.

Respondent’s motion to dismiss is therefore sustained, and the claimant given thirty days in which to amend its complaint; in the event claimant declines or fails so to amend, this order dismissing the claim shall become final.


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    (No. 3601
    Wright & Wagner Dairy Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

    Brown, Hay & Stephens, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Claimant is a foreign corporation, duly organized and existing under and by virtue of the law of the State of Wisconsin. It owns and has in its possession certain trucks which are used in inter-state commerce between the State of Wisconsin and the State of Illinois for transportation of the claimant’s own merchandise to certain of its customers located in the State of Illinois; that on or about March 14, 1940 the claimant sent to the Secretary of State of Illinois its application for flat rate fees for certain of its trucks used in hauling its own merchandise from Wisconsin into the State of Illinois. At the same time claimant sent its check payable to the Secretary of State of the State of Illinois, in the amount of One Hundred Fifteen ($115.00) Dollars, and received therefore Illinois license plates to be affixed to its said trucks.

Claimant recites that it was in error in applying for such THinm's license plates for the reason that under the reciprocal agreement existing between Illinois and Wisconsin prior to March 14,- 1940, the former does not require that the Wisconsin trucks carry an Illinois license while engaged in interstate operation if hauling their own merchandise or freight into points in Illinois. Claimant further alleges that said payment by the claimant to the Secretary of State of the State of Illinois was made at a time when the claimant did not know, nor had it received any information concerning the reciprocal agreement entered into by and betweén the representatives of the States of Wisconsin and Illinois.

Claimant says that said claim has been presented to the Secretary of State of the State of Illinois, but no refund has been made to the claimant and the reason given therefor was that the Illinois Motor Vehicle Law of the State of Illinois made no provision for refund of fees and also for the further reason that such fees as are received by the Secretary of State of the State of Illinois are deposited with the State Treasurer daily and there is no way that they can be withdrawn by the Secretary of State of the State of Illinois. Claimant further states that it has received no payment on such claim up to the time of filing of the complaint.

The Attorney General has filed a motion to dismiss the complaint for the reason that the claim on its face seeks a refund of a motor vehicle registration fee which has been paid voluntarily and without protest, and that such payment was made under a mistake of law and further for the reason the claimant failed to file a bill of particulars attached to complaint as provided for by Rule 6(a) of the Court of Claims Act.

Where one pays a license fee, without any compulsion or duress, which the law would not compel him to pay, such payment is voluntary and made under a mistake of law and cannot be recovered. Oswald Jaeger Baking Co. vs. State, 11 C. C. R. 119; Sacony-Vacuum Oil Co. vs. State, 11 C. C. R. 149; Central States Dist. vs. State, 11 C. C. R. 417; Madera Wineries & Dist. vs. State, 11 C. C. R. 632.

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

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

The State constitution provides in Section (7) of article (9) that all taxes levied for State purposes shall be paid into the State Treasury. This last provision is implemented by the State Government Act (Ill. Rev. Stat., 1941, Chap. 127, Par. 171), which requires every board, commission or department collecting money on behalf of the State to pay the same into the State Treasury not later than the next day after collection disregarding holidays and Sundays. The next section following that above mentioned provides a means whereby a taxpayer may, by notice to the State Treasurer, make payments under protest, in which event the money shall be kept in a protest fund for a period of thirty (30) days during which an injunction or restraining order may be sought for testing the validity of the tax, and providing that such fund shall be held until the final order of the court. Claimants did not comply with this Statute, did not make payments under protest and admit that the moneys they paid have long since been paid to the State Treasurer.

The claimant relies on Section lOi of Chapter 95% Illinois Revised Statute 1939, which provides as follows:

“If it shall appear that an amount of tax, penalty or interest has been paid which was not due under the provisions of this Act, whether as the result of a mistake of fact or an error of law, then such amount shall be credited against any tax due or to become due under this Act from the person who made the erroneous payments or such amount shall be refunded to such person by the Secretary of State.”

Paragraph three of the complaint states that claimant applied for and received a “flat rate” license fee which we interpret as meaning “flat weight” as provided in Paragraph (9B) of said Act.

Paragraph (10K) provides as follows:

“The provisions of Sections 9B to 9K inclusive of this Act, shall not apply to owners who have filed an election to pay a flat weight tax.” As added by act approved July 9, 1933, L. 1935, p. 1233.

This section of Chapter 95% is distinguished from the rule as found in Progressive Printing and Calendar Co. Inc. vs. State, 11 C. C. R. 622, cited in claimant’s brief and cannot apply to the ease at bar for the reason there is no such provision in the Retailer’s Occupational Tax prohibiting a refund such as we find in the Motor Vehicle Act under Para-_ graph 10K.

This court has repeatedly held that the State of Illinois in establishing its Court of Claims merely provided a forum in which claims against the State might be heard, and that the Court cannot properly recommend an award unless there exists some legal basis upon which the State, if it were suable in a court of law might be held liable.

Under the facts recited in the complaint no award could be properly allowed by the court, and the motion of the Attorney G-eneral is therefore allowed, and the claim dismissed.