text:
    (No. 1774 —
    William L. Leach, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1933.

    Henry C. Warner, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Bob

delivered the opinion of the court:

This is a claim for additional salary over the amount received by a former Judge of the Court of Claims, Honorable William L. Leach. The additional amount so claimed is Eight Thousand Nine Hundred Twenty-five ($8,925.00) Dollars.

The Attorney General has filed a general and special demurrer to the above claim.

On the 19th of September, 1922, a commission was duly issued to the claimant as a Judge of the Court of Claims, following the appointment of the claimant to said court by the Governor of the State of Illinois, and claimant having qualified for said office, taking and subscribing the constitutional oath of office, the oath having been filed in the office of the Secretary of State.

At the time of receiving this Commission, the salary of a Judge in the Court of Claims was fixed by the Legislature at Fifteen Hundred Dollars per annum.

The Legislature increased the salary of the Judges of the Court of Claims from Fifteen Hundred Dollars to Thirty-six Hundred Dollars per annum by amendment approved June 30, 1925. It is therefore claimed that the claimant herein was entitled to receive said increase in salary from July 1, 1925, when the salary increase became effective up to and including the date of his resignation from this court, which was the 15th day of September, 1929.

There are three Judges in the Court of Claims of the State of Illinois. Upon the passage of the above salary amendment by the Legislature, two of the said judges tendered their resignations to the Governor of the State, and on or about July 1, 1925, the Governor again appointed them to the Court of Claims and they were again duly qualified and commissioned as Judges of the Court of Claims under the new salary schedule.

For some reason the claimant herein did not follow the same course of action. He was therefore holding office under and appointment made on or about the 19th day of September, 1922, and continued to so hold said office under the appointment then made until his resignation was received and accepted on the 15th day of September, 1929.

There is no doubt from all the facts presented that the claimant was a holdover officer of the State from July 1,1925, to September 15, 1929, unless he resigned and was reappointed. Section 23 of Article V of the Constitution of 1870 is in part as follows:

“The officers named in this Article shall receive for their services a salary to be established by law, which shall not be increased or diminished during their official terms * * * *”

The official term of the complainant was from date of his appointment until successor was appointed or his resignation was received. No successor was appointed up to and until his resignation became effective. There was no new term of office created under the statute which increased the salaries of the judges of the Court of Claims.

It is with great regret that this court cannot allow a former and fellow judge of this court an amount in salary to which he believes that he is entitled, but unfortunately, as a State officer, he is amenable to the positive prohibition that the salary of a State officer, cannot be increased during his official term. For the reason, therefore, that the claimant was not entitled to any sum in addition to that received by him as his salary during his tenure of office under the laws, and the Constitution of the State of Illinois, the demurrer is sustained and the claim dismissed.


source: Caselaw Access Project

author: Mr. Justice Thomas

license: Public Domain

text:
    (No. 1822 —
    The Commercial National Bank and Trust Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1933.

    Noah Gullet, for claimant.
    Oscar E. Carlstrom, Attorney' General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant is asking for a refund of $300.00 franchise tax erroneously paid the Secretary of State on July 25, 1930. Claimant is a non-resident corporation but did no business in Illinois during the year for which the tax was paid. Its report showed the total amount of its issued capital stock to be $7,000,000.00. The Secretary of State notified claimant that it had been assessed a franchise tax of $500.00 and claimant sent the money to pay the tax. Under the law claimant should have been taxed only $200.00. The mistake was made by the Secretary of State. It is stipulated that the excess tax ■ was paid by mistake and the error was not discovered until after the Secretary of State had turned the money into the State treasury. It is conceded by the Attorney General that the error was a mutual mistake of fact and that claimant is entitled to an award for the excess tax paid.

Claimant is therefore allowed an award of $300.00.


text:
    (No. 1912 —
    Bilderback Investment Trust, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1933.

    Bilderback Investment Trust, pro se.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant is asking for an award of $30.00 paid by it for an insurance broker’s license. The declaration alleges it paid the $30.00 under the impression gained through lack of information that such sum was the correct amount the law required. The Attorney General has filed a demurrer to the declaration. It is apparent from the allegations of the declaration that the money was voluntarily paid. If any mistake was made by claimant, it was a mistake of law and not of fact. It is fundamental that a tax or license voluntarily paid cannot be recovered back. (Oakford & Fahnestock vs. State, 6 Ct. Cl. 439.) It is also equally well settled in this State that money paid under a mistake of law cannot be recovered back. (Illinois Merchants Trust Co. vs. Harvey, 335 Ill. 284; Richardson Lubricating Co. vs. Kinney, 337 Ill. 122; Oakford & Fahnestock vs. State, supra.)

The demurrer is sustained and the cause dismissed.


author: Mr. Justice Eoe

text:
    (No. 1801 —
    (No. 1802 —
    Peter C. Pachesa, Administrator of the Estates of Eugene Pachesa and Peter E. Pachesa, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1933.

    Homer D. McLaren, for claimant.
    Frank M. Ramey, for claimant.
    Oscar E. Carlstrom, Attorney General and Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Eoe

delivered the opinion of the court:

The claimant, Peter C. Pachesa, Administrator of the Estates of Eugene Pachesa, No. 1801 and Peter E. Pachesa, No. 1802, deceased, claims damages for the death of his two sons, Eugene and Peter E. Pachesa.

It appears that on July 6, 1931, these sons were injured in a collision with a water tank trailer belonging to the State of Illinois and death resulted the same day. With Eugene, aged fifteen years, at the time of the accident were two other boys, a brother Peter E. Pachesa, aged eighteen years, and Edward J. Norkus, also eighteen years of age, who were injured and died soon thereafter on the same day.

Peter C. Pachesa, of Taylor Springs, Illinois, father of two of the boys, was engaged in the business of selling meat and he had sent these boys to East St. Louis in a Dodge Panel Truck for a load of meat. They were returning with the meat and as they neared the town of Hillsboro on State Bond Issue Eoute No. 16, the collision occurred about nine o’clock a. m. The Dodge Truck, driven by said Peter E. Pachesa, a licensed chauffeur, had just rounded a curve near the foot of a long winding hill. This hill is paved with brick and has about seven and one-half per cent grade. A short way up the hill, Eoute No. 16, known as Springfield Eoad, is intersected by Oak Street, which is at or near the western limits of Hillsboro. At the point of the accident the roadway is built on a high embankment and on both sides of the road there is a regulation highway fence.

The water tank trailer, attached to a Ford truck, designated at No. 811-L, belonging to the respondent and being used by the Division of Highways in pavement and jack operations, became detached and swung to the left or south side of the road in the path of the oncoming Dodge truck. The driver of the State Ford truck, Gfalen Dougherty, states that when he noticed that the trailer was loose, he looked ahead and saw the Dodge truck rounding a curve and approaching the hill traveling east toward him about two hundred yards away. The record discloses that finding himself in this dilemma, he was required to make a quick decision. He either had to turn his truck to the left side of the road and try to stop the onrushing trailer or he had to speed up his truck in order to allow the Dodge truck to swerve to the north behind his truck and get out of the path of the loaded tank trailer. The State truck driver chose the latter course of action and sped down the hill driving with one hand and waving the other hand and shouting at the boys in the Dodge truck to warn them of the impending danger. In times of crisis, one must sometimes act with lightning rapidity and this is what G-alen Dougherty seemed to do in his endeavor to prevent the terrible accident which followed. He testified that his truck was at least fifty feet ahead of the trailer when he passed the Dodge truck and had the boys quickly turned to the north side of the road between his truck and the trailer, they might have been saved. However, the boys were evidently put to a quick decision also at this critical time and the driver of the Dodge truck elected to try to make a turn to the right into Oak Street. However, before the turn could be executed, the trailer was upon them and a terrific smashup resulted.

It seems that both drivers tried to avoid the accident and each made a quick decision and exhibited the best judgment at his command. To say that the collision could have been prevented, had either or both acted differently, is problematical at best. However, the result was most disastrous and distressful. For the deaths of the three boys, damages in the amount of Fifteen Thousand Dollars each is claimed.

As a matter of convenience in the presentation of the three claims counsel hereto agreed to consolidate the evidence and briefs so that facts and arguments arising from the same accident could be considered together.

Before we pass to a consideration of the cases and arguments submitted, there are some important facts to be kept in mind.

The water trailer was attached to the Ford truck by a four-inch U-shaped iron clevis with an iron pin nine inches long passing through the clevis and an iron eye in the tongue of the trailer. A few days before the accident this clevis or coupling had been made new and the iron pin had been lengthened because the State employees had decided after using the truck and trailer several days that the coupling between the Ford truck and the attached water tank trailer was insufficient, could not be trusted and was liable to break. (Abstract, page 16.) Therefore, the foreman of the mud jack operations for the State Division of Highways at this point, Mr. P. J. Payeur, had ordered a new coupling made by a blacksmith at Litchfield, Illinois. This new coupling had been in use several days before the accident. The State employees had worked on the road at this location for several weeks prior to the accident and knew that there were several long steep hills which the State truck would have to descend and ascend on each trip in bringing water for the mud jack operations. The brakes on the Ford truck were in good shape.

The most surprising and mystifying fact is that when about two-thirds down the hill the trailer became detached and that after the accident had happened, the rear of the State truck was examined and there was the iron pin in its place through the clevis attached to the Ford highway truck. Therefore, no one knows what happened to disconnect the trailer from the truck. One can guess or surmise that the coupling was jolted loose in coming down the hill and after the trailer was detached the iron pin was jolted back into place again.

Counsel for the claimant has stressed the point that this peculiar accident could not have happened if the coupling had contained a cotter pin or some safety device to keep the. trailer from becoming detached.

It is therefore, contended that the State employees were negligent in not having the safety device installed when the new coupling was made a few days- before this accident occurred.

This court considered that it is so well settled by the courts of Illinois and it has been announced so repeatedly by this court that it is not here again necessary to set forth the many cases which state “that the doctrine of respondeat superior does not apply to the State, counties, townships, etc.” and the State is not liable for the misfeasance, wrongs, or negligence of its employees, agents or servants. Therefore, this case cannot be considered from the viewpoint of any legal liability on the part of the State of Illinois. In this case, this well established rule would apply. The only question, therefore, to be considered is the one of equity and good conscience, which has here been urged by the counsel for the claimant. The rule in this regard followed by this court is clearly set forth in the cases of Theodore Stoddard, et al, No. 1066, 1067 and 1068, Court of Claims Reports, Vol 6, pages 20 and 30.

It has been held by this court that the State should pay claims for damages when the claims are based upon an equitable right. To so base the claims, it has also been repeatedly held that the act of the State’s agents must have been grossly careless or wantonly negligent. The question as to whether the above elements were present is very close. Testimony has been offered to show that there was present the fact of apparent gross carelessness or wanton negligence. Testimony has been offered by witnesses for the claimant that the coupling or clevis made without a cotter pin or other safety device was unsafe and that the State’s agents in so making the coupling were grossly careless or wantonly negligent in the exercise of their duties. It is true that the State’s agent used his best judgment to make the coupling right when he had the iron pin made longer. Evidently it was his judgment that this was sufficient protection. However, he failed to protect life by having a coupling constructed or made which would comply with the ordinary and usual custom. Because he failed to see that a cotter pin was necessary, as was proven by this terrible accident resulting in the death of three boys, was, in our opinion, gross negligence, and, according to his experience, he should have had the coupling made safe.

The evidence before this court shows that immediately after this accident the State Highway Department ordered all couplings in the future to be safeguarded with a cotter pin or other safety device.

There is no doubt the driver of the truck used his best judgment and did the thing he thought would save the boys. We cannot consider him grossly or wantonly negligent. WTien a person tries to do the right thing to avoid an accident but the facts afterward show that he was mistaken in his decision or judgment he cannot be considered grossly careless or wantonly negligent.

We have very carefully studied the evidence and cases submitted and have come to the conclusion that the statement and recommendation made by the Attorney General is correct. He says that in these cases:

“A full review of the evidence would indicate the presence of the three conditions that would justify an exception to the rule of liability on the part of the State for the acts of its agents, viz. — the existence of that degree of negligence on the part of the agents of the State which can be considered culpable, the absence of contributory negligence in any degree on the part of the persons injured and in this case killed, there being in the light of all the evidence no reasonable opportunity for them to have avoided the consequences of the collision, and the further proof of serious injury (in this event death ensuing), and on the whole the equity and justice involved and entitled to consideration has led me to the conclusion and judgment that an award should be made in each of these cases.
In view of the above conclusions, without hesitancy, I respectfully recommend to the Court that an award in Claim No. 1801 of $2,500, in Claim No. 1802 of $2,750 and in Claim No. 1803 of $3,500, would not be excessive and would, in my opinion, under all the circumstances be just, equitable and a fair discharge of the moral obligation of the State.”

Therefore, upon the recommendation of the Attorney General this court has come to the conclusion that under the rule of equity and good conscience these claims should be allowed. However, we also believe that when an exception is so made that the compensation should be adequate only to and commensurate with humanitarian needs to recompense the claimant for funeral and other necessary expenses caused by the accident. As we have said in other cases, this court wishes to be fair to the claimant and consider these cases from a reasonable and equitable viewpoint. However, it must also be mindful that the funds of the State must be safeguarded and the interests and rights of all the People of the State preserved.

The Court of Claims not only has the right to determine whether the claimants shall have compensation but also it has the right to determine the amount of compensation which should be allowed. We believe, therefore, after a consideration of all the facts and circumstances, that these cases come under the rule of equity and good conscience.

In view of the above conclusions we award, in Claim No. 1801, $2,500.00 and in Claim No. 1802, $2,750.00, in full settlement of all claims arising from this accident and recommend that the same be paid.


author: Mr. Justice Roe

text:
    (No. 1803 —
    William Norkus, Administrator of the Estate of Edward J. Norkus, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1933.

    Frank M. Ramey and Homer D. McLaren, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Roe

delivered the opinion of the court:

In this case damages in the amount' of Fifteen Thousand Dollars ($15,000.00) are claimed by William Norkus, Administrator of the estate of his son, Edward J. Norkus, deceased, age eighteen. .

The evidence and briefs having been consolidated in this case with Cases No. 1801 and No. 1802, and the facts and arguments being the same as in the above cases, the finding of this court will be the same. Please refer to the opinion and findings in the cases of Peter C. Pachesa, Administrator of the estates of Eugene Pachesa and Peter E. Pachesa, deceased.

It is therefore also recommended by this court that this claim ,be allowed and an award is made of $3,500.00 in full settlement of all claims arising from this accident, and recommend that the same be paid.


text:
    (No. 1872 —
    Russell Miller, by William Miller, his Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1933.

    Thomas P. Sinnett and J. Hays Britton, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dibtz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant is a minor eight years old and sues by William Miller, his next friend. On July 8, 1931, he was walking on the pavement of State Boute No. 80, near the Village of Coal Valley and stepped into an expansion point that had just been filled with hot tar by the road maintenance men and his right foot and ankle were severely burned. He was treated by a local physician and afterwards was taken to the hospital for treatment and there remained for thirty days and then brought home and remained in bed for three weeks.

The evidence shows that the foot was severely burned and that at least twenty-five per cent permanent loss of the foot. The cost of medical attention required in treating the injuries amounted to $75.00 and the hospital bill amounted to $88.90, or a total of $163.90. It is alleged that his injuries are permanent and he asked an award against the State for $10,000.00.

The declaration shows the State with the duty to use reasonable care to keep and maintain the road in a reasonable safe condition for the use of the public travel over it, and avers it did not do so, but wrongfully, carelessly and negligently failed and omitted to display and maintain any rail, guard or warning signal or device at or near the expansion point so filled with the hot tar.

In constructing and maintaining the hard surfaced roads, the State acts in its governmental capacity and it is not required to build them or maintain them in any particular manner. The sovereign acts of the State cannot be brought in question in this or any other court. Claimant contends that equity and good conscience requires that he be compensated by the State for the injury he suffered regardless of the legal liability to do so and bases his argument upon the language of Sub-section 4 of Section 6 of the Act creating the Court of Claims, which gives the court power to hear and determine all claims which the State should in equity and good conscience discharge and pay.

The Attorney General in his statement claims that this case should be considered an exception to the general rule; that the doctrine of respondeat superior does not apply to the State and cites the following cases;

McGhee vs. State, 4 C. C. R. 144;
Engleman vs. State, 5 C. C. R. 242;
Williams vs. State, 5 C. C. R. 368;
Stachowiak vs. State, 5 C. C. R. 275;
Schnepp vs. State, 6 C. C. R. 124;
Hanson, et al. vs. State, 6 C. C. R. 548.

The Attorney General on account of the tender age of the injured minor and the extent of his injuries and the exceptions cited in the above cases recommends that the medical and hospital bills of $163.90 be paid and an award of $2,500.00 damages, mailing a total of $2,663.90 be awarded the claimant.

Therefore, upon said recommendation of the Attorney General an award is hereby recommended in the sum of $2,663.90 in full compensation of damages, medical and hospital bills.


text:
    (No. 1972 —
    Minnie M. Mayer and Nellie C. Mayer, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1933.

    Ernest Stanley Hodges, for claimants.
    Oscar E. Carlsteom, Attorney General; Gael Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is for $10,000.00 damages to the property of claimants alleged to have been caused by the construction of a pedestrian subway under State Aid Eoad No. 55, in the Village of Homewood in Cook County.

The facts alleged in the declaration and supported by the evidence are substantially as follows: The property of claimants is a vacant lot situated on the east side of and adjoining State Aid Road No. 55, in the Village of Homewood. The property has a frontage of 40 feet on the road and a depth of 123 feet from the center of the road and of 90 feet from its east line. On March 25, 1931, the school board of District No. 153 petitioned the Cook County Board of Commissioners to construct a subway for school children under the road. On May 11, 1931, the County Board passed a resolution providing for the construction of the subway as a 15-d project. On June 2, 1931, the Division of Highways of the State approved the resolution and on June 15th approved the plans and specifications for the work. On July 15, 1931, the County Board let the contract for the work, which contract was also approved by the Division of Highways on July 30th. The subway was constructed in the month of August following. The subway extended east and west under the road. Stairs lead from the surface down to the subway. The stairway paralleled the front of claimant’s property 13 feet. Around the stairway opening in a concrete curb one foot high upon which is constructed an iron railing, the top of the railing being 44 inches above the surface of the ground.

It is alleged that the subway was constructed without any authority from claimants, and that its construction has subjected their property to an easement additional to that of the road and has interferred with, and cut off the right of ingress and egress thereto.

The Attorney General files a demurrer to the original declaration. Then the complaint filed an amended declaration. To this the attorney for the claimant and the Attorney General, entered into a stipulation of facts in the case.

The Attorney General forwarded the declaration in this case to the Division of Highways of the Department of Public Works and Buildings for investigation and report. On January 7, 1933, the Attorney General received the following report from Frank T. Sheets, Chief Highway Engineer, of the Division of Highways:

“Dear Sir:
Following is a supplemental report, which you have requested on the above claim.
The structure referred to is a pedestrian subway built by Cook County under Section 15-D of the Road and Bridge Act. The whole cost of this improvement was borne by Cook County with County funds and County Motor Tax funds. The County Motor Fuel Tax funds were used to retire the contract obligations after the contract was awarded.
The plans and estimates for this work were prepared by Cook County and were examined and approved by the State as provided for by law. After the contract was awarded the construction work was given general supervision by the State Division of Highways. The section has been accepted fdr 100 per cent maintenance by the State.
The underpass is underneath a pavement which was built jointly by the State, County and Village of Homewood and which is under 100 per cent maintenance by the State with the exception of that portion built by the Village.
I am returning your file in this matter.”

In view of the report of Frank T. Sheets, Chief Highway Engineer, Division of Highways, the Attorney General recommends that claimant be awarded the sum of $4,000.00.

Therefore, the court on the recommendation of the Attorney General recommends an award of $4,000.00 be allowed to claimant.


text:
    (Nos. 555-556-565-565A-573, Consolidated —
    The Michigan Central R. R. Co., No. 555, The Michigan Central R. R. Co., No. 556, The C. C. C. & St. L. Ry. Co., No. 565, The C. C. C. & St. L. Ry. Co., No. 565A, The New York Central R. R. Co., No. 573, Claimants, vs. State of Illinois, Respondent.

      Rehearing granted July 19, 1926.

      Opinion filed March 6, 1933.

    Sidney C. Murray & Marvin A. Jersild, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

These claims have been pending in this court for a number of years. They were consolidated for hearing, and on May 19, 1926, all were denied. A petition for rehearing was granted July 19, 1926, and they are now up for final hearing.

All the claims are for. the refund of fees paid into the State treasury by claimants under the provisions of Section 31 of the Public Utilities Act. Claimants had made application to the Public Utilities Commission for authority to issue bonds or equipment notes pursuant to the provisions of that Act. After the hearing on the applications the Commission granted the authority asked to each of claimants and ordered that the application “be, and it is hereby, charged an amount equal to ten cents for each One Hundred Dollars of bonds authorized by this order, and the same shall be paid into the State treasury before any of the said bonds shall be issued.” This order was in literal compliance with the provisions of Section 31 of the Act. Each claimant paid the amount of fees so assessed against it, and later filed suit in this court asking that the amount paid be refunded..

Claimants base their right to have the fees paid refunded on the ground that the order of the Commission requiring the payment of the fees “constituted an interference with and a burden upon interstate commerce contrary to the Third Paragraph of Section 8 of Article 1 of the Constitution of the United States and constituted a regulation and taxation of the property of claimants and of their business and of the exercise of their functions and of their right to have and use their properties outside of the State of Illinois and the taking of their property without due process of law, contrary to the Fourteenth Amendment of the Constitution of the United States.”

In their statement and argument claimants say: “It was thought by Mr. Harris, Mr. Cary and other attorneys for the claimants that Section 31 would be unconstitutional if construed literally to apply to every railroad company making applications for issues of stocks, bonds and other securities. That if so applied, whether to domestic or foreign corporations engaged in interstate commerce and having lines located outside of the State of Illinois, it would be a burden upon interstate commerce and a tax upon property beyond the jurisdiction of the Commission; and that as applied to a foreign would be a burden upon interstate commerce and deny due process of law and equal protection of the laws. These views were communicated by Mr. Cary to the members of the Commission before it began to function and were pressed upon the Commission from time to time ’’ etc. It thus appears that the Commission had before it the same questions relative to the legality of the fees assessed against claimants that are presented to this court. The Commission disagreed with the contention of claimants upon these questions and entered the order above mentioned in each case.

The fees paid in compliance with these orders and the dates of payment and of filing claims in this court for their refund are as follows: By the Michigan Central Railroad Co., No. 555, $4,000.00, paid March 25, 1915; suit filed for refund December 19, 1921. By the Michigan Central Railroad Co., No. 556, $8,000.00, paid March 6, 1917; suit filed for refund December 19, 1921. By the Cleveland, Cincinnati, Chicago, & St. Louis Railroad Co., No. 565, $7,000.00, paid June 13, 1914, and $1,725.00 paid January 21, 1915; suit for refund filed March 3, 1922. By the Cleveland, Cincinnati, Chicago & St. Louis Railroad Co., No. 565A, $20,000.00, paid July 3, 1919; suit for refund filed March 14, 1922. By the New York Central Railroad Co., No. 573, $12,762.40, paid March 4, 1920; suit for refund filed April 1, 1922. The total amount of all the fees paid by claimants is $53,487.40.

Counsel for claimants and the State have filed able and voluminous briefs and arguments in support of their respective contentions. In the view we take of the case it is only necessary to discuss two of them.

Claims No. 555 and 565 were not filed in this court within five years after they accrued. Section 10 of the Act creating the Court of Claims provides that “Every claim against the State, cognizable by the Courtof Claims shallbe forever barred unless the claim is filed with the secretary of the court within five years after the claim first accrues.” The State contends this law bars the allowance of these two claims. Claimants contend that as the law was passed after the claims accrued that it does not apply to them, and to apply it would make it retrospective. It is true that a retrospective law impairing the obligation of a contract or depriving one of a vested right cannot be enforced. But the right to come within this principle must be vested. There is no such thing as a vested right in a public law. Claimants had no vested right to sue the State in this court. The giving of that right was merely an Act of grace which the Legislature has the right to take away at any time. In providing that persons might present their demands against the State to the Court of Claims the Legislature merely established a new method of procedure. It had the right to change the method at any time or to abolish it altogether. In revising the Court of Claims Act in 1917 the Legislature deemed it proper to limit the jurisdiction of the court to claims filed within five years after they first accrued. The time within which a claim must be filed is not a limitation law, and the statute in force at the time the claim is filed is the statute which gives the court jurisdiction to hear the claims. It is manifest, we think, that the Legislature intended by this section to limit the jurisdiction of the court to claims filed within five years after they first accrued. And as these two claims were not filed within that time the court has no authority to allow them. But if Section 10 be held to be a Limitation Act the Legislature had the right to change the time within which claims might be filed if such change did not deprive claimants of a reasonable time in which to file their claims. “The time within which suit shall ■be brought relates solely to the remedy to enforce the contract, and it may be shortened or lengthened, and changed from time to time, at the pleasure of the Legislature, so long as the creditor is not denied a reasonable opportunity to enforce collection of his debt.” (Drury vs. Henderson, 143 Ill. 315-320.) “When the law only affects the remedy or procedure, the rule in this State is that all rights of action will be enforceable under the new procedure, without regard to whether they accrued before or after such change in the law and without regard to whether the suit has been instituted or not, unless there is a saving clause as to existing litigation.” (The People vs. Clark, 283 Ill. 221-225.) The fees in Claim No. 555 having been paid March 25, 1915, and the Act limiting the time within which to file claims being in effect July 1, 1917, that claimant had the time from July 1, 1917, to March 25, 1920, to file its claim for those fees, a period of over two years and eight months. The fees in claim No. 565 were paid at two different times, the first payment of $7,000.00 having been made June 13, 1914, and the second one of $1,725.00 on January 21, 1915, that claimant had the time from July 1, 1917, to June 13, 1919, a period of over one year and eleven months, to file its claim for the $7,000.00 paid June 13, 1914; and it had the time from July 1, 1917, to January 21, 1920, a period of over two years and six months, to file its claim for the $1,725.00 paid January 21, 1915. Under any circumstances these periods would be regarded as reasonable times within which to file the claims in this court. “Where a statute of limitations limiting the time within which an Act may be done is modified by changing the time, if such change still gives a reasonable time for the performance of the Act, taking away no vested right, it is a valid law.” (Spaulding vs. White, 173 Ill. 127-131.) Under either view of section 10 claims No. 555 and 565 are barred and no award can be made for them.

The State objects to the allowance of all these claims on the further ground that claimants did not appeal from the order of the Commission requiring them to pay these fees, while claimants contend their failure to take such appeal does not bar this court from making an award for them.

Section 31 of the Public Utilities Act in force at the time these applications were filed with the Commission required the Commission to charge claimants ten cents for every hundred dollars of securities it authorized them to issue. Claimants urged before the Commission that the provisions of this section did not apply to the securities which they were asking-authority to issue. The Commission held they did apply, fixed the amount of securities each claimant might issue, and ordered the fees paid into the State treasury before they were issued. Prom these orders claimants prosecuted no appeals but paid the fees as ordered by the Commission. These fees claimants urge were paid under protest and duress. In the view we take of the matter it is not necessary for us to pass upon that question.

The Public Utilities Commission was created by the Legislature to regulate and supervise the public utilities corporations doing- business in the State, and in the performance of those duties the Commission was granted extensive powers. Section 68 of the Act provides that any person or corporation affected by any order or decision of the Commission may appeal to the Circuit Court of Sangamon County for the purpose of having the reasonableness or lawfulness of such order or decision inquired into and determined. This section also provides that when no appeal is taken the parties affected by such order or decision shall be deemed to have waived the' right to have the merits of the controversy reviewed by a court. It is manifest from the provisions of this statute that the Legislature intended to make the orders and decisions of the Commission final unless the parties affected thereby appealed from such orders or decisions to the Circuit Court of Sangamon County to have the lawfulness of the orders or decisions determined by that court. Section 69 of the Act provides for appeal to the Supreme Court from the decision of the Circuit Court of Sangamon County by any party to the action. These provisions of the Act preserve to all persons affected by the decisions of the Commission the right to have the lawfulness and reasonableness of its decisions reviewed and corrected by the courts. If claimants felt that the orders of the Commission requiring them to pay these fees were unlawful they should have taken the steps provided by the statute to have the lawfulness of the orders determined by the Circuit Court of Sangamon County. Not having done so they will be deemed to have waived the right to have the question reviewed by any other court. Such is the plain language of the statute.

Claimants urge that notwithstanding their failure to appeal from the decisions of the Commission the Court of Claims has jurisdiction to pass upon the question of the lawfulness of the decisions of the Commission and, if it finds them to be unlawful, to make awards in their favor for the refund of the fees paid. We cannot agree with this contention. We must accord to the decisions of the Commission the strength due to the judgment of a tribunal appointed by law, and its decisions will stand until they are reversed by a court having jurisdiction to review them. (Palmyra Co. vs. Modesto Co., 336 Ill. 158-165; Alton Co. R. R. vs. Vandalia R. R. Co., 271 Ill. 558-565.) Under the statute only the Circuit Court of Sangamon County had jurisdiction to review these decisions. The jurisdiction of that court not having been invoked by appeal as the statute provides the decisions stand, and this court has no power to nullify them.

The State is sovereign and cannot be sued in any of the courts constituting the judicial department of the government. But it can enter into contracts and create liabilities which it may be legally obligated to pay. Out of such contracts and obligations disagreements and disputes may arise between the State and the other parties thereto necessitating the determination of questions of both law and fact. To provide a forum for the determination of such questions the Legislature created the Court of Claims. But it is clear the Legislature did not intend the Court of Claims should take jurisdiction of matters the determination of which had been devolved upon other agencies. It was only created to hear claims and demands against the State for which no other forum had been provided. Any other construction of the powers devolved upon the Court of Claims would give it jurisdiction to review the decisions of all agencies of the State in all matters involving moneys due to or from the State. Certainly the Legislature never intended to confer such powers upon this court.

It is settled by a long line of decisions that the Court of Claims will not review the orders of officers, boards and commissions made pursuant to powers devolved upon them by the Legislature, or grant awards where claimants had a remedy by appeal to the courts of general jurisdiction which they failed to pursue. The following are a few of the many cases announcing this rule. (Bassett vs. State, 2 Ct. Cl. 372; Mayer vs. State, 3 St. Sl. 34; Bolton and Smith vs. State, 4 Ct. Cl. 104; Toeder vs. State, 5 Ct. Cl. 400; Linden vs. State, 5 Ct. Cl. 150; Moline Plow Co. vs. State, 5 Ct. Cl. 277; N. Y. Ch. & St. L. R. R. Co. vs. State, 6 Ct. Cl. 481; Western Electric Co. vs. State, 6 Ct. Cl. 414; Anton vs. State, 6 Ct. Cl. 115.) It follows from the views herein expressed that claimants are not entitled to have this court make awards for the refund of the fees alleged to have been paid. The claims are therefore denied and the cases dismissed.


text:
    (No. 1176 —
    Marx & Hass Clothing Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 6, 1933.

    Warren H. Orr and John D. Wheelock, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for. respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is for the refund of $1,000.00 franchise taxes alleged to have been paid under the provisions of sections 107 of an Act in relation to corporations for pecuniary profit, approved June 20, 1919. This sum, it is alleged, was paid as follows: $200.00 in the year 1922, $200.00 in the year 1923, $200.00 in the year 1924, $200.00 in the year 1925, and $200.00 in the year 1926, said sums being in payment of the franchise taxes assessed against by the Secretary of State for those years, respectively. It is also alleged that after the payment of these taxes and before the filing of this claim said Section 107 was found and declared to be unconstitutional by the Supreme Court of Illinois, and that in equity and good conscience the State should refund to claimant the amounts as paid by it. There is no allegation in the declaration that the taxes were paid under protest or duress. So far as the declaration shows the taxes were all voluntarily paid. The State has filed a demurrer to the declaration.

It has long been the settled law that taxes voluntarily paid cannot be recovered back in the absence of a statute providing for such recovery. (Oppenheimer & Co. vs. State, 6 Ct. Cl. 465; Richardson Lubricating Co. vs. Kinney, 337 Ill. 122.) The fact that the law under which the taxes were collected was later held to be unconstitutional gives claimant no right to have them refunded. It was under no obligation to pay the taxes if they were illegal. Claimant is presumed to have known the law, and if it paid the taxes is the belief the law under which they were assessed was valid it cannot now assign its mistake as a reason for having them refunded. (Oakford & Fahnestock vs. State, 6 Ct. Cl. 439, and cases there cited. See also Western Electric Co. Inc. vs. State, 6 Ct. Cl. 414.) As the declaration wholly fails to state a cause of action against the State the demurrer must be sustained.

It is therefore ordered that the demurrer be and the same is sustained. As the admitted facts show claimant is not entitled to any award the claim is denied and the case dismissed. ■


author:
      Per Curiam:
     Mr. Justice Thomas

text:
    (No. 1527 —
    William Wrigley, Jr., Co., Claimant, vs. State of Illinois, Respondent.

      Opinion dismissing claim filed September 14, 1932.

      Opinion on motion to vacate order of dismissal filed March 6, 1933.

    Paul O’Donnell, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Per Curiam:

Now comes the respondent, by Oscar E. Carlstrom, its Attorney General, and duly moves the court for dismissal, pursuant to an order to show cause entered by this court on the 12th day of January, 1932, wherein the claimant was ordered to show cause on or before September 13, 1932, why the above entitled case should not be dismissed for want of prosecution. And it appearing to the court that sufficient cause has not been shown by claimant, in accordance with the requirement of said order;

It is therefore ordered, adjudged and decreed, that said claim be and is hereby dismissed without award for want of prosecution.

On motion to vacate order of dismissal the following opinion was rendered:

Mr. Justice Thomas

delivered the opinion of the court:

. On July 18, 1929, claimant filed its declaration asking for an award of $85,606.26 for initial fees and franchise taxes which it alleges were paid by it in excess of the amount legally due. The award is asked on the grounds that the law under which the taxes were paid was unconstitutional. On August 1, 1930, the Attorney 'General filed a demurrer to the declaration. No steps had been taken in the case by claimant up to the time the demurrer was filed although it had been on the docket for over a year then. At the January, 1932 session of the court the Attorney General filed a motion for a rule on claimant, to show cause why the claim should not be dismissed for want of prosecution. This motion was allowed on January 12,1932, and claimant was given until March 8,1932, to answer the rule. On March 8, 1932, an order was entered giving claimant till the 13th day of September, 1932 to answer the rule. Claimant having failed to comply with the order, on motion of the Attorney General, the claim was dismissed September 12, 1932. On December 2, 1932, claimant filed its motion to vacate the order dismissing the cause and to re-docket the case.

Claimant has shown no reason why its motion should be granted. When claims are filed in this court it is the duty of the claimants to prosecute them with reasonable diligence. After the demurrer was filed claimant failed to call the case up for argument on the demurrer but allowed it to rest without any steps being taken by it to have the demurrer disposed of until the January term, 1932. At that term it was given till the March term to show cause why it should not be dismissed, and the time was then extended till the following September term. Claimant made no effort to answer this motion in any way, although given eight months to do so. Under this state of facts claimant is in no position to complain at the dismissal of its case. No excuse has been given by claimant for its failure to comply with the orders to show cause why the claim should not be dismissed, and no reason has been offered for redocketing it, except that the demurrer was still undisposed of. Claimant had eight months after the order to show cause was entered to call up the demurrer but failed to do so, and has assigned no reason for such failure.

While not required to do so under this motion we will say that we have examined claimant’s declaration and have arrived at the conclusion that it does not state such facts as warrant an award in favor of claimant. Claimant alleges the taxes were collected under the provisions of an unconstitutional statute. That fact does not entitle claimant to have them refunded. For a full discussion of the legal questions involved see the following cases: Sta-rite Hair Pin Company vs. State, 6 Ct. Cl. 436; Oakford & Fahnestock vs. State, 6 Ct. Cl. 439; Western Electric Company et al vs. State, 6 Ct. Cl. 414; Commercials Solvents Corporation vs. State, 6 Ct. Cl. 442; S. Oppenheimer & Co. vs. State, 6 Ct. Cl. 465;

The motion to vacate the order dismissing the cause and to re-docket the case is denied.


author: Mr. Justice Bob

text:
    (No. 1553 —
    Herman L. Ohlendorf, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 6, 1933.

    Clark, Young, Bull & Boot, for claimant.
    Otto Keener, Attorney General; Gael Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Bob

delivered the opinion of the court:

The claimant, Herman L. Ohlendorf, claims damages for an injury to his automobile which occured while on Hlinois State Highway No. 7 on October 18, 1929. While driving on this highway from Morris to Joliet, he drove his car through the barricades into a hole or depression approximately fourteen inches deep in the roadway, and thereby lost control of his car, which ran off of the shoulder into a fence post. His automobile was damaged but fortunately the claimant was uninjured. For the damage to the car, the claimant has presented a bill in the amount of $106.44.

There is no dispute as to the fairness of the bill presented, but the liability of the State is questioned by the Attorney General.

It seems that this highway had been under repair for about a month prior to the accident. Patches were being made in the pavement and in order to protect travelers, standard warning signs and barricades were erected at the excavated places. Lanterns and torches were being made. The claim is made that the lantern at the place where the accident occurred was not burning at the hour of 6:15 o’clock p. m. when the claimant’s automobile was damaged. The Chief Highway Engineer, in making a report of the accident, which counsel for claimant in their reply brief ask to be considered as part of the record in the case, says that a man was hired to fill, clean and trim the lanterns and torches. He further says that reports had come to his attention that this man was not performing his duty satisfactorily. Therefore, the foreman in charge of the patching crew was instructed to check on the lights early in the evening and again in the middle of the night and was unable to find any irregularities. The engineer further said that he personally found the signs, barricades and lights in first-class condition. Counsel for claimant concede the contention .of the Attorney General that the doctrine of respondent superior does not apply to a state in the exercise of purely governmental functions. But counsel do contend that this case should be considered under the principle of equity, good conscience and “simple justice.” The rule in this regard, which has been well established by this court, is set forth in the cases of Theodore Stoddard, et al. Nos. 1066, 1067 and 1068, Court of Claims Reports, Vol. 6, pages 29 and 30. To so base a claim, it has been repeatedly held that the act of the State’s agent or employee must have been grossly careless or wantonly negligent. In this case, the element of gross carelessness or wanton negligence is lacking. The Chief Highway Engineer certainly did his duty, as did the foreman in charge of the patching crew. The fact that after the accident the caretaker was released does not establish gross carelessness or wanton negligence. It is not “a question of the feeling of the court in this regard” but a plain question of fact and the application of the law in regard thereto. We have very carefully studied the evidence and facts submitted and have come to the conclusion that from all these facts and circumstances, the case cannot be considered as one coming under the rule equity and good conscience.

Therefore, it is recommended by this court that the claim be disallowed, the claim is denied and the case dismissed.


text:
    (No. 1607 —
    Lethia V. Derby, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 6, 1933.

    Harold W. Lewis, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant is asking $10,000.00 damages for injuries she alleges sustained in a collission between a bus in which she was riding as a passenger and a truck being driven by an employee of the State. The collision occurred April 11, 1929, on West Locust Street, in the City of Quincy, about 9:00 o’clock in the morning. The bus belonged to the Illinois Power and Light Company and the truck was one used at the Illinois Soldiers’ and Sailors’ Home at Quincy, and was being driven by Chester King, an employee at the Home. It is alleged that the collision was caused by the negligence of the driver of the truck and that her injuries were the direct result of the negligence and want of care of Chester King while employed by the State.

In her argument claimant assumes that the State stands in the same position as an individual or a corporation, and is liable for all damages caused by the negligence of its agents or employees. In this, claimant is. in error. The rule is universal that the State is never liable for the negligence of its agents and employees unless there is a statute making it so liable. This rule has been so often announced by this and other courts that it would seem it should now be well known. The following are but a few of the many cases announcing the rule. (United States vs. Kirkpatrick, 9 Wheaton, 720; Story on Agency, 9 Ed. Sec. 319; Belt vs. State, 1 Ct. Cl. 266; Johnson vs. State, 2 Ct. Cl. 165; Schroeder vs. State, 3 Ct. Cl. 36; Wunderlich Granite Co. vs. State, 4 Ct. Cl. 143; Janeczko vs. State, 5 Ct. Cl. 244; McGarrah vs. State, 6 Ct. Cl. 468; Kinnare vs. City of Chicago, 171 Ill. 332.) Unless a claimant can show a legal or equitable liability of the State of pay the claim filed the court has no power to make an award. In Johnson vs. State, supra, it was said: “The Commission of Claims is not a bureau of charities, but a court, and under the law creating it must determine all claims in accordance with legal principles.” As there is no statute in this State making the State liable for the negligence of its employees it follows claimant is not entitled to an award against the State for her alleged injuries. The claim is therefore denied and the case dismissed.


author: Per Curiam:

text:
    (No. 1629 —
    Stresenreuter Brothers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 6, 1933.

   Per Curiam:

On this 6th day of March, A. D. 1933, being one of the regular days of the January, A. D. 1933 term, comes the claimant, Stresenreuter Brothers, by their attorneys, Dent, Weichelt & Hampton, and the respondent by its Attorney General, Otto Kerner, and files a stipulation to dismiss the above case.

The stipulation is approved, and the cause dismissed, and in pursuance to said stipulation the claim is dismissed without award, because of action satisfied.


text:
    (No. 1644 —
    Lucinda J. Allen, Mother of Edgar M. Allen, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 6, 1933.

    Miller & Shapiro, for claimant.
    Otto Kerner, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Roe

delivered the opinion of the court:

This is a claim instituted by Lucinda J. Allen, mother of Edgar M. Allen, Deceased, to recover compensation under the Workmen’s Compensation Act for the death of her son, which occurred on June 16,1930. ■ At the time of his injury, the said Edgar M. Allen was employed by the State of Illinois as a laborer on State Route No. 13. While working in the course of his employment setting up road forms for a concrete paving operation near Murphysboro, a dump truck owned and operated by the respondent, which was loaded with gravel, backed in toward a mixing machine used on this highway. At the time, the deceased was bending low, working on the road forms at the point where the dump truck backed in. The driver of the truck did not see this laborer at his work and as he backed the right rear wheel of the dump truck knocked the deceased over against the forms and pinned him beneath the wheels. Just at this time the driver noticed what happened and attempted to drive the truck forward, but in some manner, the truck rolled back onto the injured laborer, and he died from the injuries thus received at St. Andrew’s Hospital at Murphysboro where he had been taken.

There seems to be no dispute as to the material facts concerning this accident.

The deceased had been employed steadily by the Department of Highways for one year prior to the accident. The evidence further shows that during this period of time, he had helped to support his mother, who was past seventy years of age.

Claimant was injured, while working as a laborer setting up road forms for concrete paving on a State highway, and his injury arose out of and in the course of his employment which is classified as extra-hazardous under the Workmen’s Compensation Act.

Claude G.Van Hoorbeke vs. State, 5 C. C. R. 337.

The deceased, Edgar M. Allen, had contributed $40.00 per month toward the support of his mother, Lucinda J. Allen, the claimant herein. He had worked a year prior to the accident and received as pay approximately $26.53 per week. The evidence tends to show that the claimant was not totally dependent upon the earnings of her son, Edgar M. Allen. She has six children now living, the youngest of them being thirty-five years of age.

We believe the claimant is entitled to compensation and that the compensation which should be paid comes under section 7(c) considering the fact that the claimant was partially dependent upon the support of the deceased.

The claimant, therefore, is awarded the sum of One Thousand Seven Hundred Fifty Dollars ($1,750.00) in full compensation for the injury sustained by her son, Edgar M. Allen, and this court recommends that she be allowed this sum.


text:
    (No. 1744 —
    Harriette L. Thompson, Administratrix of the Estate of Ward E. Thompson, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 6, 1933.

    Andrews & Essington, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant brings this action for $10,000.00 damages as administratrix of the estate of Ward E. Thompson, deceased. The deceased was a member of the Board of Pardons and Paroles. On January 4, 1931, while on his way to attend a meeting of the board at Joliet the automobile in which he was riding left the road and crashed into a pole. As a result deceased received injuries from which he died on January 8th following. He left a widow and two children surviving him, for whose benefit this action is brought. In addition to the above facts the declaration charges that the injuries causing the death of deceased arose out of and in the course of his employment, and also that an award be made under the provisions of the Workmen’s Compensation Act. The State has demurred to the declaration.

Before a claimant can have an award against the State he must bring himself within the provisions of some law justifying it, and unless he does so his claim must fail. While in this case deceased was an employee of the State and the injuries that caused his death were received while he was engaged in the performance of his official duties those facts alone do not entitle claimant to an award. The Court of Claims has no power to make an award in any case unless the facts show a legal or equitable claim against the State. (Schmidt vs. State, 1 Ct. Cl. 76; Henke vs. State, 2 Ct. Cl. 11; Thompson vs. State, 4 Ct. Cl. 26; Perry vs. State, 6 Ct. Cl. 81.) The Workmen’s Compensation Act only applies to the State when the State is engaged in some of the enterprises or businesses enumerated in Section 3 of that Act. (Perry vs. State, supra.) As the deceased was not employed in any business or enterprise of the State declared to be extra-hazardous by Section 3 of the Workmen’s Compensation Act at the time he received the injuries causing his death that Act does not apply and claimant is not entitled to an award. The demurrer is therefore sustained and the case dismissed.


text:
    (No. 1760 —
    Dominic DiCianni, Administrator of the Estate of Salvatore DiCianni, Deceased, vs. State of Illinois, Respondent.

      Opinion filed March 6, 1933.

    Theodore Levin, for claimant.
    Otto Kerner, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Bob

delivered the opinion of the court:

The claimant, Dominic DiCianni, Administrator of the estate of Salvatore DiCianni, deceased, claims damages for the death of his brother in the amount of Ten Thousand Dollars ($10,000).

Salvatore DiCianni, a minor, ag’ed fifteen years, was shot while riding as a passenger in an automobile owned by one Frank Amato and driven by one Nick Amato. This automobile was proceeding in a northeasterly direction on Ogden Avenue near the intersection of Washington Boulevard, Chicago, Illinois. The declaration states that Police Officer Thomas B. Chapman, employed by the West Chicago Park Commissioners, shot the deceased while he was riding in the said ear. However, the declaration does not give the circumstances under which the deceased was shot. Counsel for claimant asserts in his declaration that the said Thomas B. Chapman shot the deceased without provocation or justification.

To this claim, a Plea to Jurisdiction has been filed in behalf of the State of Hlinois.

In the case of Perkins, Fellows and Hamilton vs. State, 4 C. C. R. 197, the rule is clearly and definitely set fourth that the Court of Claims has no jurisdiction over the suits against Municipal Corporations. Inasmuch as the Supreme Court of our State has decided that the West Park Board of Commissioners is a Municipal Corporation created by an Act of the Legislature in Februaiy, 1869, this court is without jurisdiction in this case. Claimant maintains that he is without remedy except in the Court of Claims and seeks award in equity and good conscience. It has been uniformly set forth that this court is of the opinion that the Legislature of this State did not intend to include in the Act creating the Court of Claims any authority to obligate the State of Illinois, either as a matter of law or through equity and good conscience, in cases of this character.

Inasmuch as we believe that this case cannot be maintained in this court, the Plea to Jurisdiction is sustained and the claim dismissed.


text:
    (No. 1790 —
    Elijah F. Hayes, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 6, 1933.

    Joe Frank Allen, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Roe

delivered the opinion of the court:

The claimant, Elijah F. Hayes, a resident of the City of Mount Vernon, Illinois, herewith presents a claim in the amount of $390.50.

On January 3, 1930, he was enlisted as a member of the Howitzer Company, 130th Infantry, in the Illinois National Guard, rating as a private first-class in said organization. During the period from August 2nd to August 16th, 1930, he was ordered to Camp Grant at Rockford, Hlinois, for the annual field training. Upon his arrival at Camp Grant, he was detailed by Captain E. C. Johnson and First Sergeant Lewis Brake to the duty of unloading company equipment from trucks at the tent area to be occupied by the said Howitzer Company. As he was performing this duty, it was necessary for him to unload such heavy equipment that he developed a severe strain, which necessitated his reporting to the regional infirmary for the purpose of treatment. Upon examination by Captain M. E. Baxter, of the Medical Corps, he was ordered to be taken to the Base Hospital at Camp Grant for treatment, being taken there by ambulance. At the Base Hospital, the injury was pronounced to be hernia, left inguinal. The commanding officer of the hospital, after due examination, declined to operate and after a period of two days, the claimant was ordered back to his company for duty. He was instructed by the commander of his organization to do no duty that might aggravate the injury. On August 7, 1930, the Board of Inquiry was convened to pass upon the claimant’s case. This board heard all the available evidence and took the matter under consideration.

After the claimant returned with his organization to his home at Mount Vernon on August 16th, he found that his condition was growing worse, and upon August 24th, a request for hospitalization and operation was made by his organization commander to the Adjutant General of the State. The claimant further states that authority for the operation was granted by telegram on August 28, 1930, and that he later was allowed disability pay in the amount of $184.50, which amount he received.

The claimant now asks that he be paid for the difference between his loss of salary for eleven and one-half weeks, which was $575.00 and the amount he received from the State, which difference is $390.50.

In this case, the respondent has filed a Plea to Jurisdiction. In view of the general provision of Section 11, Article XVI of the Military and Naval Code, the plea to jurisdiction is overruled.

After careful consideration of all the facts presented, it appears to this court that the claim of the claimant was fairly and favorably passed upon by a Board of Inquiry duly convened on August 7, 1930, in accordance with the provisions of Section 10, Article XVI of the Military and Naval Code. (Par. 142, Chapter 129, Smith-Hurd’s Revised Statutes, 1931.)

And it appears to this court that claimant has'received full compensation under the above section for the temporary total disability, which is the only claim herein made.

Under the statute full compensation of this claim has been made and therefore the claim is denied and the case dismissed.


text:
    (No. 1808 —
    Wm. Wrigley, Jr., Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 6, 1933.

    Trowbridge, Lowrie, O’Donnell & Johnston, for claimant.
    Oscar E. Carlstrom, Attorney General and Carl Dietz, Assistant Attorney General, for the State.
   Mr. Justice Thomas

delivered the opinion of the court:

This action is for the refund of $40,064.40 franchise taxes paid by claimant to the Secretary of State on July 23, 1926. It is alleged the taxes were assessed and collected by the Secretary of State under the provisions of Sections 101 and 105 of the General Corporation Act and that said sections were afterward held unconstitutional by the Supreme Court of Illinois at its June term, 1927. It is further alleged the taxes were paid under protest and that claimant “was induced to make said payment in said year by means of duress and through fear that the State of Illinois would enforce the statute and impose the penalties provided in the statute applying to corporations which fail to pay their franchise taxes. ’ ’ The State has demurred to the declaration.

It is well settled in this State that a tax voluntarily paid cannot be recovered back in the absence of a statute providing for such a recovery. It is also well settled that the fact that the statute under which the tax was levied and collected was unconstitutional will not authorize an action for its recovery by the party paying it. (Oppenheimer & Co. vs. State, 6 Ct. Cl. 465; Board of Education vs. Toennigs, 297 Ill. 469.) The fact that the Secretary of State had no legal right to demand the tax and claimant was under no legal obligation to pay it is of no consequence unless the payment was compulsory in the sense of depriving claimant of its free will. (Ill. Glass Co. vs. Chicago Tel. Co., 234 Ill. 535; School of Domestic Arts vs. Harding, 331 Ill. 330; Western Electric Co. vs. State, 6 Ct. Cl. 414.) And the payment will not be deemed compulsory where it is made to avoid penalties. (21 R. C. L. p. 151, sec. 176; The People vs. Brand, 239 Ill. App. 273; Oppen heimer & Co. vs. State, supra.) As there is no statute in Illinois providing for the refunding of illegal taxes claimant is barred of the right to their recovery.

There is another reason why claimant cannot recover. Section 2a of the Act in relation to the payment of the public money of the State into the State treasury provides that every officer shall hold all money paid to him under protest for thirty days before depositing it with the State Treasurer and if the party making such payment shall within such period file a bill in chancery and secure a temporary injunction restraining the making of such deposit such payment shall be held until the final order or decree of the court. This statute gave claimant an opportunity to have the courts of the State decide whether or not the tax demanded was valid. There is no allegation in the declaration that claimant followed the provisions of this law. It is manifest it did not do so. As claimant had an opportunity to have the validity of the tax determined by a court of general jurisdiction and failed to avail itself of that privilege the tax will be deemed to have been voluntarily paid. (Oppenheimer & Co. vs. State, supra; Richardson Lubricating Co. vs. Kinney, 337 Ill. 122.)

As the declaration does not state such facts as entitles it to a refund of the taxes the demurrer is, sustained and the case dismissed.


text:
    (No. 1810 —
    W. E. O’Neil Construction Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 6, 1933.

    W. E. 0 ’Neil Construction Co., pro se.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant asks an award of $11,364.32 as extra compensation for the construction of the Naval Armory at Chicago. It charges that in building the armory it was put to extra expense, not contemplated, due- to delays on the part of the State and to rise in the water level of Lake Michigan. To the declaration the State has filed a plea of former adjudication.

The claimant filed a claim in this court, based on the same facts and circumstances as this, to the January term, 1930, and upon a hearing thereof the same was denied at the September term, 1930, and a rehearing denied November 12, 1930. (W. E. O’Neil Construction Co. vs. State, 6 Ct. Cl. 450.) The cause having once been heard and decided by this court will not be considered again.

The claim is denied and the case dismissed.


text:
    (No. 1905 —
    Richard A. Slattery, Administrator of the Estate of Richard Slattery, Jr., Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 6, 1933.

    Louis N. Blumenthal, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

The claimant, Administrator of the estate of Richard Slattery, Jr., files his claim for $10,000.00 damages and a further sum of $400.00 for doctor- hills and funeral expenses for the death and burial of Richard Slattery, Jr. The declaration charges that on May 16, 1931, Richard Slattery, Jr., was playing on a slide in the park located at Thirty-third and Shields Avenue, Chicago, known as Armour Square. That the park was a public park and under the control, supervision and jurisdiction of the South Park Commissioners, a municipal corporation. That the claimant was in the exercise of due care and caution for his own safety and had a lawful right to be upon said slide. That the South Park Commissioners negligently failed to maintain the slide in a good state of repairs, as a result of which Richard Slattery, Jr., fell from the slide and received an injury from which he died on the 17th day of May, 1931. The State has filed a plea to the jurisdiction of this court setting up that Armour Square is under the control and supervision of the South Park Commissioners of the City of Chicago, a municipal corporation. That the declaration fails to aver in what manner the State of Illinois is liable for damages for the death of the said Richard Slattery, Jr. That the South Park Board of Chicago is a municipal corporation and is not a subdivision of the State of Illinois, or any department of the State Government. This court has in former opinions expressed itself as to extending the liability of the State of Illinois in cases of similar nature and the court is of the opinion that the Legislature of the State of Illinois did not intend to include in the Act creating the Court of Claims any authority to obligate the State of Illinois, either as a matter of law or through equity and good conscience to assume obligations of this character. (Perkins, Fellows & Hamilton vs. State, 4 C. C. R. 197; Otto Stine, Adm. vs. State, 6 C. C. R. 329.) The Court of Claims in our opinion has no jurisdiction in this case and the case is dismissed for want of jurisdiction.


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    (No. 1954 —
    Joe Hesler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March, 6, 1933.

    J. E. Care, for claimant.
    Otto Keener, Attorney'General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

J. E. Carr, attorney of record for claimant, comes and files his written motion and moves the court to dismiss the above claim without prejudice.

The motion is granted and case dismissed without prejudice.


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    (No. 1983 —
    Lillian Sturrock, Administratrix of the Estate of Alexander Sturrock, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 6, 1933.

    George M. Kellogg, Jr., and Irvin R. McClellan, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court :

Claimant is asking for an award of $8,000.00 for the death of her son Alexander Sturrock. The declaration charges that Alexander Sturrock, a feeble-minded boy about the age of 14 years, while an inmate of the Lincoln State School and Colony was so severely scalded while being bathed by another inmate that he died from the effects thereof and that the injuries causing his death were the result of the negligence of those in charge of the school. To this declaration the State has filed a general and special demurrer.

The Lincoln State School and Colony is one of the State charitable institutions, and in maintaining it the State is exercising its governmental functions. It has been' held repeatedly that in the conduct of its charitable and penal institutions neither the State nor any of its agencies are liable for damages caused by the negligence of those in charge of or employed in such institutions. (Hemmerling vs. State, 2 Ct. Cl. 316; Schaefer vs. State, 2 Ct. Cl. 356; Dale vs. State, 2 Ct. Cl. 368; Ryan vs. State, 4 Ct. Cl. 57; Burghardt vs. State, 5 Ct. Cl. 221; Pelka vs. State, 6 Ct. Cl. 390.) In the Pelka case, supra, we said: “If the purpose of the institution be charitable if it is maintained solely for the benefit of the public, the agency maintaining it and conducting it incurs no liability for the negligence of its officers, servants or employees, whether that agency he the State, a city, county or private corporation,” citing in support thereof Tollefson vs. City of Ottawa, 228 Ill. 134; Johtston vs. City of Chicago, 258 Ill. 494; and Hogan vs. Chicago Lying-In-Hospital, 335 Ill. 42. Many other cases of like import might be cited but we deem it unnecessary. As the declaration show claimant is not entitled to an award the demurrer is sustained and the case dismissed.


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    (No. 1990 —
    Walter Guertin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 6, 1933.

    Fbeybubgeb, Bakeb & Bice, for claimant.
    Otto Kebneb, Attorney General; Cabl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Bob

delivered the opinion of the court:

The automobile of Walter Guertin, the claimant, was wrecked, the claimant injured and his infant child was drowned on a public highway on the 6th day of April, 1931. The highway extends south from Beaverville in the County of Iroquois. At a place about two miles and one-half south of Beaverville, a bridge is built over a drainage ditch or creek with a narrow approach leading thereto. While proceeding along this highway, the claimant undertook to pass another automobile as he was on the said approach, which had no protection fence or railing, and in so doing his automobile toppled over a twelve foot embankment causing the injuries and death above mentioned, for which he claims damages in the amount of Eleven Thousand Dollars ($11,000.00).

It is contended by the State in a plea to jurisdiction that the highway in question was not taken over by the State and was under the sole ownership, control and supervision of the County of Iroquois.

While this unimproved highway is a State Aid Boad and connects with State Bond Issue Boute 116, this does not bring it within the jurisdiction of this court. It is not a part of the State system of hard roads and therefore not under the direct supervision and control of the State.

From all the facts set forth in this case, it is the opinion of this court that the contention of the respondent is correct, and therefore the plea to jurisdiction is sustained and the claim is dismissed without award.


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    (No. 2025 —
    Mrs. W. D. Brickey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 6, 1933.

    Mrs. W. D. Brickey, pro se.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Bob

delivered the opinion of the court:

The claimant, Mrs. J. D. Brickey, claims that there is due her Five Thousand Five Hundred Dollars ($5,500.00) from the respondent for taking care of the University farm.

In March, 1914, Mr. W. D. Brickey and his wife moved into the University farmhouse and remained there until the latter part of October, 1918. During this time, Mrs. Brickey looked after the care of the house where from seven to nine students roomed and boarded. It is claimed by Mrs. Brickey that she had talked to Mr. Felmley of the University at Normal concerning pay for the work that she was doing and that he had told her that the appropriation was not large enough to cover all costs. Mrs. Brickey claims, furthermore, that the dairy on the said place made considerable money and that it could not have been rim without her work, and that she should have received a share of the money it brought in. Because of this work carried on by Mrs. Brickey, she claims that her health was undermined and that she is entitled to a matron’s pay during the years that she was on the said farm.

In this case a plea of the Statute of Limitations has been filed on behalf of the State.

Section 10 of the Act creating the Court of Claims provides that every claim against the State coming within the jurisdiction of this court shall be forever barred unless it is filed with the secretary of the court within five years after it first accrues. It appears from the facts set forth in the declaration and exhibits that this claim was not filed within the time required by statute and therefore the plea of the Statute of Limitations is sustained and the case dismissed.


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    (No. 2034 —
    Harris Dante, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 6, 1933.

    Harris Dante, pro se.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Bob

delivered the opinion of the court:

The claimant, Harris Dante, claims that there is due him as Secretary of the Illinois Commission on Election Laws, the sum of Five Hundred Dollars ($500.00) in back salary. It is further claimed that as such secretary he received a salary of Four Thousand Dollars ($4,000.00) per year, payable in monthly installments of $333.33. He received his salary regularly from September 1,1929 to May 15,1931. He claims that he continued in this work up to and including June 30, 1931, and that there is a balance of salary of Five Hundred Dollars ($500.00) still due him. He says that the balance so due was not paid because the appropriation for the said Illinois Commission on Election Laws was exhausted and no funds were available for the payment of his salary. The claimant also filed a statement setting forth the amounts paid during the time of his employment from month to month.

From the evidence presented, and upon the recommendation of the Attorney General, we are of the opinion that the claimant is entitled to the salary claimed in the snm of Five Hundred Dollars ($500.00) and recommend the payment of same.


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    (No. 1675 —
    Robert Gene Wood, a minor, by Mable Wood, Guardian, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 5, 1933.

    Lewman and Carter, for claimant.
    Otto Kerner, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Roe

delivered the opinion of the court:

On July 2, 1930, Robert Gene Wood, a private, first-class in Company A, 130th Infantry, Illinois National Guard, claims that he was assaulted and gravely injured by William C. Timm, the then captain of said Company.

From the evidence herein produced, it seems that on the above date, a drill was held between the hours of eight and nine-thirty o’clock at night. After the drill the claimant became engaged in an altercation with one Dale Nimerick, another member of Company A, and during this altercation, the claimant who had rather pugilistic tendencies, struck Dale Nimerick twice and knocked him down. Immediately thereafter, on his own initiative, he went to the company office in the Armory, where Captain Timm and Sergeant Highberg were working, and reported the assault to the Captain. After asking a couple of questions which were answered very civilly by the claimant, the Captain, who was over six feet tall and weighed much over two hundred pounds, lost control of himself and became so enraged that he brutally assaulted this boy, who was five feet six inchés tall and weighed less than one hundred forty pounds. The Captain struck him several violent blows on the face and head, blackening his eye, and then picked up a wooden folding chair and struck Claimant Wood, with an overhead swing, on top of the head. The blows with the chair were sufficiently strong, according' to the testimony of two other witnesses present, to break the chair and then the Captain picked up a piece of the broken chair and continued striking claimant over the head with it although Wood begged him to stop.

During this altercation, Wood did not strike Timm at all, and there seems to be no doubt that the assault was unwarranted, although the Captain was provoked by claimant’s attack on Corporal Nimerick, whom Wood accused of reporting to Captain Timm certain derogatory remarks in regard to Company A, which it was alleged Wood had publicly made.

Seemingly not satisfied with the beating he gave the claimant, the Captain sent for Corporal Nimerick and when Nimerick arrived the Captain directed the two to go to the gun shed and fight it out. Although dazed by the Captain’s assault upon him, Wood finally again knocked Nimerick out and was thereafter permitted to go home.

As the result of his encounter with Captain Timm, the claimant was obliged to remain in bed six weeks because of a skull fracture, which extended across the top of the vault of the skull and down on either side some five or six centimeters. The evidence shows that as a result of this skull fracture, the boy has developed epilepsy of the post traumatic type and that the epileptic attacks are gradually becoming more frequent, and therefore young Wood has been unable to either go to the University of Ulinois as he had intended or to seek any gainful occupation.

There is generally two sides to every case. On one side we find Private Wood, a quick tempered and somewhat obstreperous individual with a reputation as a fighter, had assaulted and knocked a fellow member of his Company.

On the other side, we find Captain Timm provoked not only by the public criticism of the local guard unit which it was alleged that Wood had made, but also by his attack on Corporal Nimerick for reporting it.

Studying the affair from an unprejudiced viewpoint, it seems clear that the Captain, a man forty years of age, large and strong and who should have been a man of mental poise, was not sufficiently provoked for his unwarranted attack upon a much smaller lad of eighteen years.

The question therefore arises whether the State is either legally or in equity liable for this attack. It is clear to the court that the assault was brutal and most highly censurable, and the results therefore lamentable. The actions of the Captain resulted in his resignation from the Illinois National Guard. A Military Board of Inquiry, following an investigation of July 13, 1930, found Captain William C. Timm guilty of conduct unbecoming an officer and a gentleman and his resignation was requested on August 12,1930 by the Adjutant General. On August 19th, his resignation was received and his services thereby terminated.

From all the evidence presented, it is clear that the assault complained of, which occurred about ten o’clock p. m. and the injuries inflicted, did not arise while the claimant was on duty and lawfully performing same. (See Par. 142-143, Chapter 129, Cahill’s Ill. Revised Statutes, 1931.)

It is the opinion of this court that there is no legal liability in this case on the part of the State. However, it is a deplorable case. That the State is not liable for ultravires acts of a State militiaman is set forth in the case of Minnie McGhee vs. State of Illinois, 4 C. C. R. 144.

Although this court has consistently held that in such cases there is no legal liability on the part of the State, it has recognized the necessity and fairness of considering cases arising out of extraordinary conditions in the light of equity and good conscience.

It is not the intention in such cases to establish a precedent obligating the State of Illinois under similar conditions. However, because this is a particularly unfortunate case, it is the opinion of the court that as a matter of equity and social justice, that the claimant be allowed some compensation for actual expenses incurred. It is not the intention of this court in recommending such an allowance, to fully compensate the claimant for the loss sustained.

In conformity therefore, with the well established rule of this court wherein particular cases warrant the consideration of equity, the claimant is awarded the sum of Seven Hundred Fifty Dollars ($750.00) for medical services and expenses and it is recommended that he he paid this amount through his guardian, Mabel Wood, in satisfaction of all claims against the State of Illinois.


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    (No. 1679 —
    J. A. Kirby, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 5, 1933.

    Harris & Harris, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant is asking for an award of $5,000.00 damages he alleges he has suffered because of being discharged from the faculty of the Western Illinois Teachers College at Macomb. He was employed as an instructor in the institution, for the year 1929-1930. He alleges he was to teach ten and one-half months, beginning the middle of July, 1929, at a salary of $315.00 per month and was dismissed on August 26, 1929. Claimant has filed no abstract and no brief and argument. We have carefully read the evidence in this case and find that the discharge of claimant was fully justified. Section 12 of the Act establishing the Western Illinois State Teachers College provides: “The board of trustees shall appoint instructors and such officers as may be required in said school, fix their respective salaries, prescribe their several duties, and shall have power to remove any of them for proper cause.” It is clear from the evidence in this case that the trustees acted within their powers in discharging claimant, and that he has no cause of action either against the college or the State.

The claim is therefore denied and the case is dismissed.


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    (No. 1724 —
    Herbert H. Price, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 5, 1933.

    Herbert H. Price, pro se.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant is asking an award against the State for $60.47 to reimburse him for loss sustained on account of the sale of two grade holstein cows infected with tuberculosis. The two grade holstein cows were tested by the State Veterinarian and found to be tubercular. On July 26, 1930 the two cows were condemned and claimant ordered to dispose of them within thirty days as the law provides. The animals were appraised at $215.00. On August 27, 1930 they were shipped to Chicago Producers Commission Association of Chicago, Illinois, and were slaughtered by the Guggenheim Brothers and brought $33.60, resulting in a loss of $181.40. The Bovine Tuberculosis Act, in force July 1, 1929, provides the State shall pay one-third of the difference between the appraised value of a tubercular animal and the proceeds of the sale of the salvage, not exceeding $70.00 for a purebred animal where the United States assists in the eradication of tuberculosis in cattle and two-thirds of such difference, not to exceed $140.00, for a purebred animal where the United States does not cooperate with the State in the eradication of that disease.

Section 8 of that Act provides: “No compensation shall be paid to any person for an animal condemned for tuberculosis, (4) if the owner retains the animal for more than thirty days after it has been adjudged infected with tuberculosis.”

Cattle infected with a disease such as tuberculosis becomes a public nuisance and the State has the power, if deemed necessary to the public welfare to order their destruction without compensation to the owner. (Durand vs. Dyson, 271 Ill. 382; Mayfield vs. State, 5 Ct. Cl. 226.) And if the State sees fit to limit the amount of compensation it will pay the owner of property destroyed in the exercise of such power or to make payment of compensation contingent upon compliance by the owner with certain imposed conditions no one can question its authority to do so. Under the maxim “the. safety of the people is the supreme law” the State had the right to order claimant’s animals destroyed without paying him any compensation. Therefore, the statute is so plain it cannot be misunderstood. It provides compensation shall not be paid if the owner retains the animal more than thirty days after it has been adjudged infected. That is the law and this court has no power to change it nor to disregard it. The Legislature deemed thirty days ample time for owners of such diseased animals to dispose of them. There is certainly nothing in this record to show claimant could not have disposed of his cows within the time fixed by the statute. But be that as it may the statute is plain and mandatory and claimant not having complied with its provisions is not entitled to any award.

The demurrer is therefore sustained and the case dismissed.


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    (No. 1793 —
    William Kendall, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 6, 1933.

      Rehearing denied April 5, 1933.

    Lancaster & Nichols, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Roe

delivered the opinion of the court:

The claimant asks damages under the Workmen’s Compensation Act in the amount of $896.00. He was employed as a laborer by the Division of Highways, Department of Public Works and Buildings of the State of Illinois. On March 10, 1931, he was assisting in cleaning off snow from Routes 31 and 102, between Quincy, Illinois and Clayton, Hlinois. In going from one snowbank to another, he rode in the truck just back of the driver’s seat. In the rear end of the said truck was piled a number of concrete marker posts about seven feet long and about five inches in diameter, each of these posts weighing about two hundred pounds. The posts were being used as ballasts in the operation of the truck and snowplow. While the claimant was so riding, the truck crossed the Wabash Railway tracks and in crossing said tracks, the truck and snowplow hit the rails which were raised about four inches.

It is claimed that the driver of the truck, Ira Cecil, failed to raise the plow in crossing these rails and by reason thereof, snowplow struck the rails, causing the concrete marker posts in the rear end of the truck to slide forward against the claimant. As a result, his right foot, ankle and leg were crushed, his leg being fractured above the ankle and the ligaments and tendons of the leg and ankle were bruised and ruptured..

The claimant says that he was disabled for a period of twelve weeks and was forced to spend $80.00 for doctor’s bill in connection with the treatment of said injuries.

He also claims $10.80 per week for sixty-three weeks for partial loss of the use of his right leg. In the report of the District Engineer, it is stated that this item should not be considered on account of the -fact that he had been reemployed since June 3, 1931, and that he had been able to perform his duties in such a manner as entitled him to receive the same rate of pay which he received prior to the injury.

Claimant was injured while employed as a day laborer in cleaning snow from a State highway.

The provisions of the Workmen’s Compensation Act do not apply to a State employee unless engaged in one of the extra-hazardous occupations enumerated in Section 3 of the Act. If claimant was so engaged, he would come under Paragraph 1: “The erection, maintaining, removing, remodeling, altering or demolishing of any structure, except as provided in sub-paragraph 8 of this section.” In the case of Claude G. Van Hoorbeke vs. State, 5 C. C. R. 337, this court has held that ‘ ‘ a highway is a structure within the meaning of Section 3 of the Workmen’s Compensation Act.” If in the present case, the work of claimant comes under this Act, it would be in maintaining a structure. Maintain means to preserve or continue in any particular state or condition; to sustain; to keep up; not to suffer to change or decline. Obviously, this means in this instance, to keep the pavement in good repair and condition. The claimant was not aiding in maintaining the highway in this sense. He was assisting in clearing the roadway of snow so as to aid traffic, and not to preserve the physical condition of the pavement. This distinction is clear. For example, if a building was being maintained under this section, it would mean that the building was being kept in repair so that its physical structure would not change or decline. A person sweeping out the building or cleaning snow from the doorsteps certainly would not be considered as employed in maintaining the building within the meaning of Section 3 of the Workmen’s Compensation Act. In our opinion, the Legislature did not intend such a broad and far-reaching application of the law.

Therefore, it is recommended by this court that this claim be disallowed.


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    (No. 1904 —
    Joseph Anthony Sand, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 5, 1933.

    Joseph Anthony Sand, pro se.
    Otto Keener, Attorney General and Carl Dietz, Assistant Attorney General, for the State.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is filed pro se by Joseph Anthony Sand, a world war veteran to recover the sum of $300.00 as compensation granted him under the provisions of the Illinois Bonus Act of 1921.

Claimant filed his Claim No. 257,728 on October 17, 1923, with the Service Becognition Board of Illinois, which was allowed in the amount of $300.00 and certified for payment to the State Treasurer, who on July 10, 1924, drew Warrant No. 10,258 in like sum for payment of this claim. This warrant was not delivered to the claimant but came into the hands of a person or persons unknown who forged the signature of claimant and cashed said warrant.

Upon the sworn affidavit of the claimant under date of July 29, 1927, the American Surety Company on November 11, 1927, refunded to the State Treasurer the sum of $300.00 in payment of the loss of respondent. The State Treasurer subsequently issued Treasurer’s Draft No. 2521 in like sum, payable to the claimant but was unable to make delivery due to address of claimant then being unknown. The treasurer’s draft was retained in the files of the State Treasurer until May 3, 1929 and being unable to deliver the draft to claimant it was cancelled and the amount returned to the Soldiers ’ Compensation Fund on August 2, 1929. On September 30, 1929 the Soldiers’ Compensation Fund lapsed back into the State treasury without claimant having received his just bonus.

The Attorney General recommends that the claim be allowed in the sum of $300.00.

An award is hereby allowed claimant in the sum of $300.00.


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    (No. 1975 —
    T. O. Oliver, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 5, 1933.

    T. O. Oliver, pro se.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Bob

delivered the opinion of the court :

T. 0. Oliver, of the Village of Metamora, Illinois, on August 20, 1932, was employed by the State of Illinois as a day laborer with a construction gang on State Bond Issue Boute No. 116. He claims that he had a team on this work, and that on the above date one of his mares, in stepping over a form, struck a hey, or wire, which severed an artery close to the bone on her right fore leg1. Although veterinarians were called upon to stop the flow of blood, the mare died a few hours later.

One Hundred Dollars is claimed as the alleged value of the said mare.

To this claim the Attorney General has demurred.

Under the well established rule of law, that the doctrine of respondent superior does not apply to the State in the exercise of purely governmental functions, it is the opinion of this court that the demurrer should be sustained and the claim dismissed.