text:
    (No. 2219
    Freely Graeff, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Isaac K. Levy, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Freely Graeff, the claimant, was employed by the State of Illinois in its Department of Public Works and Buildings, Division of Highways, and was on the 12th day of January, 1933, engaged in the work of maintaining a hard-surfaced public road known as State Bond Issue No. 13 between Carbondale and Vergennes, and was known as a maintenance helper. At or near Carbondale, at that time, the State maintained a Highway Department Garage, in which various road making and road repairing equipment were stored when not in use, and on the date hereinabove mentioned, the claimant was riding on a road grader which was being pulled by an auto truck, and after doing certain work on said Route 13, this grader was being taken to the garage by the claimant and another employee. The blade of the grader came in contact with a part of a railroad crossing of the Illinois Central Railroad Company, which railroad crosses Route No. 2, a short distance south of the garage. The jerk occasioned by the blade coming in contact with some object on the railroad crossing, caused the claimant to be violently thrown to the ground and severely injured his back and spine and apparently he will be crippled for life.

Claimant had been paid at the rate of forty cents per hour or $21.60 per week, and had been earning that wage for the year preceding* his injuries; he is forty-six years old; married and has a wife and one child under sixteen years of age with whom he resides and who are dependent upon him for support. Medical, surgical and hospital treatment were furnished him by the State prior to April 15,1933, but no medical and surgical treatment has been furnished him since that time. He has received all told, the sum of $126.22.

The Attorney General says that there is no dispute as to the facts, the only dispute being as to the extent of the permanent disability.

On July 9, 1934, Dr. R. S. Sabine found that the claimant, in his then condition would not be able to perform manual labor that would require movement of the back and bending. On the same date, Dr. E. K. Ellis stated that in his opinion the claimant was not physically able to perform manual labor and did not think that he would be able to do any physical exertion in the future that would require the use of his back. Dr. B. F. Craine of Carbondale testified that he had seen the claimant right after the injury and that he was suffering from a bruised place and cut on the back of his head and his back was bruised, and that he had been taken to the Holden Hos- ’ pital. After ten days or two weeks he went to Craine’s office and Dr. Craine sent him to Dr. Ellis at Murphysboro, because it was more convenient for the claimant to go to Murphysboro than Carbondale. He found that the claimant had a chronic arthritis, kind of lipping* over the processes.

There is ample testimony in the record to show that claimant is permanently injured and unable to do any work, and the claimant himself testified on July 17, 1934 that he observed no change whatever in his physical condition; that he has pains in the back and it hurts him to lean forward; that if it was necessary for him to get anything off the floor, he would have to get down on his knees and then have something to pull himself up by; that he cannot stand but a few minutes on his feet and then he commences to tremble; that he suffers pain when he walks and when he lies down; that he cannot sleep on his side; that he cannot lie in one position very long; that he rests pretty good one or two nights a week; that he has a feeling- like cold water running over his legs, starting about his hips; that he had not done a thing since the day he was injured; that he had had no trouble prior to his injury with his back and was able to do a full day’s work of manual labor.

Dr. C. D. Nobles, Acting Assistant Managing Officer for the Anna State Hospital, made a report and stated that considering claimant’s occupation, it appeared that he had a permanent disability; that the claimant could perform no duty which would require much walking, bending, or sitting long at a time; that the injury was questionable as to being total but was probable, but the partial disability will be continuous, and gave as his judgment that he was suffering a 60 to 70 per cent total disability, and that mental conditions may follow; that the claimant impressed him as being honest and fair.

From an examination of the record we conclude that claimant has been totally disabled; that under the Compensation Act he is entitled to $4,450.00, and a pension for life as provided by Statute. In a private employment, under the law, he would be entitled to 416 weeks on an average of $10.70 per week. From the time of the injury until August 2, 1935, if an appropriation is made pursuant to our recommendation, he will have coming to him $1,423.10 for 133 weeks, plus $9.50 for a part of a week, making a total of $1,432.60, leaving 282 weeks to be computed pursuant to law. This makes the sum of $2,787.18. This must be done because there is no way that weekly payments can be made owing to the fact that appropriations would lapse before entirely paid out. Deducting the sum of $126.22 which had been paid to him from the $1,432.60 which will be due as of August 2, 1935, when we estimate the appropriation, if made, will be paid to the claimant, leaves the sum of $1,306.38. Adding this to the sum computed, makes the sum of $4,093.56, which award we made and recommend that the Legislature make an appropriation for that sum payable to Freely Graeff; but we will continue this case on pur docket for future consideration as to the pension in accordance with law.


source: Caselaw Access Project

author: Mr. Justice Linscott

license: Public Domain

text:
    (No. 2037
    George F. Graesch, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Ben H. Townsend, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim was filed on December 29, 1932, for the sum of $560.00 and alleges that on June 26, 1932, claimant was in the employ of the State of Illinois as a State Highway Policeman and while on duty it became necessary for him to adjust and clean the driving chain of the motorcycle furnished him by the State, and while so adjusting and cleaning the driving chain, his thumb caught between the driving chain and the sproket wheel, and was so injured that amputation of the first phalange of the thumb became necessary.

Proper report was immediately made and he was off duty two days, but for several weeks it was necessary for a doctor to dress his injured thumb daily, from June 26th to July 21, 1931.

Claimant received $175.00 per month, and was married and had two children under sixteen years of age.

For the loss of a thumb or the permanent use thereof, under the Compensation Act, he would be entitled to 50% of the average wage during 70 weeks, but not less than $7.50 per week, or more than $15.00 per week, except where the maximum of $15.00 per week is provided, such maximum shall be increased in case of two children under sixteen years of age, to $16.00 per week, and the loss of the first phalange of the thumb is considered to be equal to the loss of one-half of the thumb, and compensation shall be one-half of the amount above specified.

He is, therefore, entitled to the sum of $560.00 and an award in that amount is recommended.


author: Mb. Chief Justice Hollebich

text:
    (No. 2517
    Grayslake Gelatine Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Moses, Kennedy, Stein & Bachbaoh, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

It appears from the stipulation of facts herein that claimant is an Illinois corporation; that on January 23, 1934, it filed its annual report in the office of the Secretary of State, in which report the outstanding capital stock of the corporation was set forth at $320,000.00; that on May 15, 1934 the Secretary of State assessed a franchise tax on said capital stock for the year commencing July 1, 1934, according to law, in the amount of $160.00; that on June 26, 1934 the claimant paid the amount so assessed against it; that thereafter and prior to July 1, 1934, claimant reduced its capital stock from $320,000.00 to $160,000.00; and that the correct amount of the franchise tax on a capital stock of $160,000.00 is $80.00.

Cláimant filed its complaint herein on October 16, 1934, and seeks to recover the sum of $80.00 which it claims to have paid in excess of the amount which it was legally required to pay on its decreased, capital stock as aforesaid.

The provisions of Section 132 of The Business Corporation Act of this State, in force July 13, 1933, relative to the basis for the annual franchise tax of domestic corporations are as follows:

“The basis for the annual franchise tax payable by a domestic corporation shall be the amount represented in this State, determined in accordance with the provisions of this Section, of the sum of its stated capital and paid-in surplus on the thirty-first day of December of the preceding calendar year as disclosed by its last annual report, or, in case no annual report has been filed, as disclosed by any other report or document filed by it with the Secretary of State.”

However, such paragraph was modified by an amendment approved and in force May 8, 1934, and now provides as follows:

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

Inasmuch as claimant’s capital stock was not reduced until after the 25th day of June, A. D. 1934, the franchise tax in question was properly based upon “the sum of its stated capital and paid-in surplus on the 31st day of December of the preceding calendar year”, to-wit, $320,000.00.

Claimant therefore paid the amount which it was legally required to pay.

Award must therefore be denied.

Award denied. Case dismissed.


author: Mr. Justioe Linscott

text:
    (No. 2039
    August W. Grunz, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    August W. Grunz, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justioe Linscott

delivered the opinion of the court:

The claimant makes claim for the sum of $168.50 that he paid to Dr. H. B. Warren for treating claimant for injuries received on the 10th day of May, 1931, while he was acting as a Highway Maintenance Policeman for the State of Illinois, in an automobile accident on Route No. 12.

The evidence fully sustains the claim and there is no dispute as to the facts. At the time of the injury the claimant was under the Compensation Act and the Attorney General states that he has no objection to an award being made for the sum of $168.50, being the full amount of the claim.

We, therefore, recommend that an appropriation be made to August W. Grunz, for the sum of $168.50.


author: -Mr. Justice Linscott

text:
    (No. 2609
    Ernest W. Gutzmer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Ernest W. Gutzmer, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   -Mr. Justice Linscott

delivered the opinion of the court:

The claimant is a licensed physician and surgeon. On June 23, 1933 he was called to take care of Robert Dunham, who was an employee of the State of Illinois, working on S. B. I. Route No. 54, at or near Elmhurst. Dunham was injured by a hit and run automobile driver. Dunham sustained these injuries while in the course of his employment.

It appears from the testimony that the claim of the claimant, for the sum of $32.00, is reasonable for the services rendered. We have heretofore held that:

“Where a State employee, employed in a hazardous employment, is injured in line of duty and requires medical treatment which is given, the State becomes liable under the Workmen’s Compensation Act.”

Marquis vs. State, 7 C. C. R. 88.

There is no objection on the part of the Attorney General to the allowance of this claim.

We, therefore, make an award in the sum of $32.00 in this case.


author: Me. Chief Justice Hollerich

text:
    (No. 2026
    Samuel J. Howell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Feed B. Herbert, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Chief Justice Hollerich

delivered the opinion of the court:

On the 17th day of August, A. D. 1932, and for some time prior thereto, claimant was in the employ of the respondent as a carpenter in erecting forms for the rock crushing plant then being built by the State of Illinois at the Southern Illinois Penitentiary at Menard, and was being paid the sum of $168.00 per month, with one-fourth maintenance w;kich is equivalent to $6.00 per month. Prior to the time of his employment by the State he had been engaged in work as a carpenter and contractor for a number of years.

On the- date above mentioned, while in the performance of his duties in connection with the erection of said rock crushing plant, claimant sustained a fracture of the left arm, between the wrist and the elbow, as the result of being struck by falling timber. He was taken to the prison hospital bnt apparently the only person there who could give him medical attention was a medical student by the name of Weatherby who was working in the prison hospital. Claimant refused to permit Weatherby to set his arm and was then taken to St. Andrews’ Hospital at Murphysboro where he was "attended by Dr. Hrabik. X-ray and fluoroscope examination disclosed a fracture of both bones of the forearm. An attempt was made to reduce the fracture and a wooden splint was applied. Upon X-ray examination after the reduction it was found that the splint was not holding the bones in proper position, so the patient was put to bed and a Thomas splint applied to the arm for a period of six days. At the end of that time the fracture was reduced and the arm placed in a cast and kept in such cast for a period of about six weeks. Thereafter it was carried in a splint for four weeks longer, with instructions to remove the same daily and massage the forearm. After that there was some treatment by way of massage as well as heat and electrical treatment. It appears that there is a nerve involvement with resulting disability.

Claimant submitted to examination by Dr. Ralph May and Dr. A. F. Barnett, the prison physicians at Illinois State Prison at Menard. From the report of the examination made by such doctors, as well as the report made by Dr. Hrabik, the physician who treated the claimant at the time of the accident, it appears that he has sustained a permanent and complete loss of seventy-five per cent of the use of his left arm.

Claimant paid the hospital bill of St. Andrew’s Hospital in the amount of $68.50. The bill of Dr. Hrabik in the amount of $79.50 remains unpaid.

Notice of the accident was given and claim for compensation made, in accordance with the requirements of Section 24 of the Act.

Claimant was paid his regular salary during the time that he was off work on account of the injury, and makes no claim for temporary total disability.

At the time of the accident he was a married man and had two children under sixteen years of age, and therefore under the provisions of Section 8-d-4 claimant is entitled to recover compensation for a period of 168% weeks for the permanent and complete loss of seventy-five per cent of the use of his left arm, payable in weekly installments of $16.00 per wuek commencing on the 18th day of August, A. D. 1932.

Payment of compensation in weekly installments, however, is not practicable under existing laws.

It is therefore to the best interests of all parties concerned that the unearned compensation be commuted to an equivalent lump sum in accordance with the provisions of Section 9 of the Workmen’s Compensation Act.

The total amount of the compensation to be paid after commutation of the unearned portion thereof to an equivalent lump sum as aforesaid, is $2,698.91. Claimant is entitled to an award for that amount and in addition thereto the sum of $148.00 for hospital bills paid and medical hills incurred by him as aforesaid, making a total of $2,846.91.

Award is therefore hereby entered in favor of the claimant for the sum of Twenty-eight Hundred Forty-six Dollars and Ninety-one Cents ($2,846.91).


text:
    (No. 2350
    Journal Printing Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Journal Printing Company, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The Journal Printing Company, a corporation, doing business at Springfield, Illinois, is engaged in the business of printing and bookbinding.

It alleges that on or about the 3rd day of June, 1933, the State of Illinois, through its Division of Printing, gave the Journal Printing Company an order to print and bind 1,000 copies of the 32nd Annual Report of the Illinois State Beekeepers Association, and pursuant to that order, the Journal Printing Company made delivery on September 23, 1933 to E. J. McCormick, Secretary, Illinois State Beekeepers Association, and presented a bill for the cost pf said printing* and binding to the State Superintendent of Printing on September 19, 1933, and was advised that the appropriation from which payment for this work should have been made had lapsed, and that no funds were available to make payment of this claim amounting to $608.74.

No question arises about the facts. The voucher in payment of this account was issued September 23, 1933 by the Illinois State Beekeepers Association and transmitted to the Department of Finance. Somehow, the voucher was lost in the Department of Finance and did not clear before the appropriation lapsed. Consequently, payment was not made.

It has been the holding of this court where services were rendered and supplies furnished to the respondent, for which an appropriation had been made, but for which payment was not made before such appropriation lapsed, an award will be made for the amount upon the recommendation of the department receiving same. In a letter dated March 27, 1934, from E. T. Bank, Superintendent of Printing, it was recommended that the claim be allowed, and the Attorney General in his brief states that in his opinion, this is a claim which the State should pay.

Therefore, an award is made in favor of claimant in the sum of $608.74.


author: Mr,. Justice Linscott

text:
    (No. 2548
    Dorothy L. Kay, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Dorothy L. Kay, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr,. Justice Linscott

delivered the opinion of the court:

During the month of April, 1933, the claimant was employed as Assistant Director of the Department of Public Welfare, State of Illinois; that she was appointed to accompany an eastern group of patients for deportation and deliver Nick Dotsonlis from the Kankakee State Hospital to Hartford, Conn.

In the performance of such duties, her traveling expenses are allowed. No question arises on whether the duty was performed, and she has filed an itemized statement of her expenditures in the sum of $44.35. The Director of the Department of Public Welfare states in his opinion it is a just claim and should be allowed, and would have been allowed had it been presented in time to he paid out of the appropriations of the last biennium, hut it was not presented before the appropriations lapsed. “In such cases, this court has repeatedly made awards.”

(Ruediger vs. State, 7 C. C. R. 11; Miller vs. State, 7 C. C. R. 251.)

We, therefore, make an award in the sum of $44.35 for the claimant".


text:
    (No. 1827
    McIlvaine Burner Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1935.

    Wilson & McIlvaine, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim was filed on November 7, 1931, and it was based upon the fact that the McIlvaine Burner Corporation had paid franchise taxes to the State of Illinois in an amount in excess of the amount required to be paid by the claimant under the terms and provisions of Section 105, Chapter 32, Cahill’s Revised Statutes of the State of Illinois.

It appears that the authorized and issued capital stock of claimant is and has been, since the incorporation of said claimant, 5,000 shares, having no par value, and the amount of consideration received by said corporation for each share of stock was $5.00.

For each of the years 1925 and 1926, the claimant paid the State of Illinois $250.00 as a franchise tax assessed against its capital stock, and it is admitted that the franchise tax so assessed was properly assessed under the terms and provisions of the Statute then in force.

For the year 1927, claimant paid the State of Illinois the sum of $275.00 franchise tax, for the year of 1928 the sum of $250.00, for the year 1929 the sum of $12.50, for the year 1930 the sum of $275.00 and for the year 1931 the sum of $12.50, making a total of $825.00. Both the $275.00 payments were payments of franchise taxes plus a 10 per cent penalty, or $25.00 in each instance. The claimant, states that a claim in the sum of $760.00 was properly presented to the Secretary of State, and that, he refused payment. Under, the terms of Statute then in force, each corporation organized under the laws of the State of Illinois, having stock of no par value, was required to pay an annual franchise tax of five cents on each $100.00 received by such corporation for its shares of stock of no par value. This corporation had 5,000 shares of no par value stock, but it only received $5.00 per share. It would, therefore, be required to pay an annual franchise tax of 5c on each $100.00 of the $25,000 received by it as the consideration for the issuance of its 5,000 shares of no par value stock, or an annual franchise tax of $12.50, and a 10 per cent penalty for failure to file its annual report in each instance would be $1.25. Payment under a mistake of fact is generally held to be recoverable, at least where a mistake on the part of the tax officer is made. (87 Minn. 243; 91 Northwestern 890.) The mistake in this instance appears to have been made because of a mutual mistake of fact, and it is the judgment of this court that the claimant be allowed the sum of $760.00 for such mistake.


author: Me. Justice Linscott

text:
    (No. 2382
    Charles E. McMorris, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Eugene L. Davison, for claimant.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court :

The claimant, Charles- E. McMorris, was a member of the Board, Division of Normal Schools, Department of Registration and Education, and was acting without compensation other than expenses incurred in the performance of his duties.

It is charged that the claimant had expended the sum of $159.01 during the months of April, May and June, 1933, for traveling* and personal expenses incurred while acting* in an official capacity as a member as aforesaid. He has tendered an itemized statement of his traveling* expenses, together with detailed memorandum for the months above mentioned, for the said sum of $159.01 to the proper department, but the same was returned to him. It appears these expenses were itemized on the dates they were incurred, and it appears from the files of the Director of the Department of Education and Registration that the expense accounts were properly filed in his office. These accounts were approved by the proper officers. This is commonplace of the various Normal School Board of Trustees matter which provide that the trustees shall receive their personal and traveling* expenses and the auditor is authorized to issue warrants quarterly upon taking the affidavit as to the actual time employed and their personal and traveling expenses. No dispute arises in this instance as to the facts, and it appears that the only reason the amount was not paid is because the claimant did not present his statement for approval before the appropriation lapsed.

The Attorney General makes no objection, and it has been held by this court that:

“Where an employee or officer of the State incurs expenses for which the State is liable and payment is not made because the statement for same is not presented until the appropriation has lapsed, an award for same will be made.”

Ruediger vs. State, 7 C. C. R. 11;

Miller vs. State, 7 C. C. R. 251.

We, therefore, recommend an award in the sum of $159.01 in favor of the claimant.


author: Mr. Chief Justice Hollerioh

text:
    (No. 2256
    Moline-Rock Island Manufacturing Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Thos. P. Sinnett and J. Hays Britton, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of the court:

Claimant filed its complaint herein on November 1, 1933 and seeks to recover the sum of $1,440.00 which it claims to have paid as a franchise tax for the year beginning July 1, 1933 and ending June 30, 1934, in excess of the amount which it was legally required to pay under the terms and provisions of The General Corporation Act of 1919, as amended.

It appears that on February 27, 1933 the claimant, in accordance with the law then in force, filed its annual report with the Secretary of State, in which it stated that the issued capital stock of the Company was $2,900,000.00. Based upon such statement, the amount of the franchise tax due from the claimant under the then existing law was $1,450.00. Notice of the amount of such tax was forwarded by the Secretary of State to claimant under date of May 15,1933, and was received by it on June 15, 1933. Shortly thereafter claimant issued its check, payable to the Secretary of State, for the sum of $1,450.00 in full payment of the tax as so assessed. Such check was received by the Secretary of State on June 20, 1933, was endorsed by him to the State Treasurer on June 26, 1933, and subsequently cashed.

On June 17, 1933 a meeting of the stockholders of claimant corporation was held, and a resolution adopted decreasing the amount of the issued capital stock from 29,000 shares of the par value of $100.00 each, to 100 shares of the par value of $100.00 each; — such decrease being effected in the following manner, to-wit: — by the surrender of the 29,000 issued shares of capital stock, by the holders thereof, and the issue to them in lieu thereof of 100 shares of the par value of $100.00 each; so that each holder received 1/290 of a share of stock for each share previously held; and by the creation of a capital surplus of $2,890,000.00.

Pursuant to such resolution claimant made application in regular form to the Secretary of State for a reduction of its capital stock, and on June 29, 1933 the Secretary of State issued his certificate under the seal of the State, setting forth that the claimant had legally decreased its stock as set forth in the aforementioned resolution.

On the same date the Secretary of State also issued and subsequently mailed to the claimant a corrected statement showing a franchise tax due and owing from claimant in the amount of $10.00 on all of its issued capitalization of $10,000.00. Sometime during the early part of July, 1933 claimant received this corrected statement and on July 20, 1933 issued its check in payment therefor. Thereafter and on the 22nd of July, 1933, the Secretary of State wrote claimant in part, as follows:

“As it would appear that above company paid franchise tax under date of June 20, I am returning check for $10.00.”

However, the check was not enclosed in the letter and is still outstanding.

Thereafter some correspondence was had between the claimant and its attorneys on the one hand, and the Secretary of State on the other, relative to the matter, and on August 1, 1933 the Secretary of State advised the attorneys for the claimant in part as follows:

“The practice has obtained in this office where a decrease is made on or before June 30 that the company is assessed on the new capital stock for the year following.
“Since, however, these fees were paid before the companies decreased their capital stock and have been turned into the State treasury it would appear that the only way they could be recovered at this time would be by filing a bill in the Court of Claims.”

The Business Corporation Act of this State became effective on July 13, 1933, the date on which it was filed with the Secretary of State by the Governor without his signature. The last mentioned law expressly repealed the previous General Corporation Act entitled “An Act in Relation to Corporations for Pecuniary Profit,” approved June 28, 1919, in force July 1, 1919, as amended.

Section 163 of The Business Corporation. Act provides as follows:

“The repeal of a law by this Act shall not affect any right accrued or established, or any liability or penalty incurred, under the provisions of such law, prior to the repeal thereof.”

Inasmuch as the Business Corporation Act was not effective until July 13, 1933, and the franchise tax involved in this case was due and payable on July 1, 1933, the rights of the parties hereto must be determined in accordance with the provisions of the aforementioned General Corporation Act of 1919 as amended, which Act continued in force until the time of its repeal by the Business Corporation Act as aforesaid.

It therefore becomes necessary to determine what rights, if any, claimant had acquired under the provisions of The General Corporation Act of 1919, as amended.

The provisions of such Act which are particularly involved in this proceeding are Sections 34, 59, 105, 108, and 109.

Section 34 provided for a reduction of the capital stock by amendment of the charter, and required the amended charter to show the total amount of the stock already authorized and issued, the amount of reduction and the manner in which it should be effected, and also provided:

“* * * The capital stock may be reduced by the surrender by every stockholder of his shares and the issue to him in lieu thereof of a proportional decreased number of shares, if the assets are not reduced thereby, without creating any liability of the stockholders of such corporation in case of the subsequent bankruptcy of such corporation.”

Section 59 provided that when the Board of Directors desired to amend the Article of Incorporation by increasing or decreasing the capital stock, they should give notice of such desire in the notice of the annual meeting of stockholders, or they might call a special meeting of the stockholders of such corporation for the purpose of submitting^ such amendment to a vote of such stockholders.

Section 105 provided that “each corporation for profit * * * shall pay an annual license fee or franchise tax to the Secretary of State of five cents on each one hundred dollars of the proportion of its issued capital stock * * * * * * represented by business transacted and property located in this State”, etc.

Section 108 provided that “the franchise tax herein provided to be paid shall be due and payable on the first day of July of each year and shall be the franchise tax for the year commencing on the first day of July in which it is due and ending on the 30th day of June next thereafter.”

Section 109 provided as follows:

“The Secretary of State shall, from the annual report filed, assess a tax at the rates herein prescribed, against each corporation required herein to make an annual report,” etc.

The provisions of The General Corporation Act of 1919 hereinbefore referred to contain ample authority for the decrease in the capital stock in the manner adopted by claimant, but make no reference to the effect of such decrease, if any, on the amount of the franchise tax, where the result of the decrease is to create a capital surplus.

In the case of Interstate Iron and Steel Co. vs. Stratton, 340 Ill. 422, it was held that no additional franchise tax was payable under Section 105 of the 1919 Act, when a corporation changed each of its common shares of $100 par value into five shares of no par value, although at the time of the change the corporation had a large surplus. The same conclusion was reached in the case of a split-up of shares of no par value. O’Gara Coal Co. vs. Emmerson, 326 Ill. 18; The Fleschmam Co. vs. Emmerson, 326 Ill. 40.

The case of The People vs. Emmerson, 305 Ill. 348, involved the question as to the amount of the annual franchise tax which a certain corporation was required to pay. In considering that question, the court said:

“The tax required by Section 105 above quoted, to be paid by corporations doing business in this State is a tax on the authorized capital stock of such corporations. It is not a property tax and so the value of the corporate assets does not in any way measure the amount of the tax to be paid. In construing Section 105 it is necessary to keep in mind the distinction between capital stock and capital. The capital stock of a corporation is the sum total fixed by the charter or articles of incorporation as the amount paid in or to be paid in as the capital upon which the corporation is to do business. The capital may be increased by surplus profits or diminished by losses, but this does not increase or diminish the amount of capital stock. The funds or capital of the company may fluctuate; its capital stock remains invariable until changed by authority of the State.”

The case of Majestic Utilities Corporation vs. Stratton, 353 Ill. 86, involved the franchise tax of a corporation which had transferred all of its assets to another corporation in exchange for shares in the latter. Most of these shares had been distributed to shareholders of the former corporation upon a surrender of their shares. The shares so surrendered were actually cancelled and retired pursuant to resolutions adopted by the directors and more than two-thirds of the shareholders, and such cancellation and retirement was stated in the annual report, although no steps were taken to reduce the capital stock under Section 34 or 59 of the 1919 Act. The court held that the franchise tax should be computed only with respect to the shares not so cancelled and retired.

In the consideration of that 'case the court, on page 93, said:

“Whatever doubt or uncertainty there might be in this regard, it is a fundamental rule of statutory construction that taxing statutes must be construed strictly. (People vs. Chicago and Eastern Illinois Railway Co., 314 Ill. 596). In interpreting statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government and in favor of the citizen. (Gould vs. Gould, 245 U. S. 151; Bowers vs. New York and Albany Lighterage Co., 273 id. 346.)”

In the case of Armstrong vs. Emmerson, 300 Ill. 54, the court, in considering the meaning of the words “capital stock” in connection with the franchise tax required to be paid thereon under the Act of 1919, said:

“It is this invariable sum fixed by the charter as the amount to be paid in by the stockholders for the prosecution of the business of the corporation and for the benefit of the corporate creditors which is ordinarily understood by the term ‘capital stock’ unless the context indicates a different meaning. The capital stock is not the same thing as the capital of the corporation or its actual property, the value of which may fluctuate from time to time. However much the value of the property of the corporation may increase in the prosecution of a successful enterprise or may be diminished by losses incurred, the capital stock remains unchanged. The fees and franchise taxes which every corporation must pay under the General Corporation Act are fixed by Sections 96 to 107, inclusive, of that Act.”

We do not find any case in which the question here involved has been squarely placed before our Supreme Court. The Opinions of the Attorney General for 1933, page 239, indicate, however, that this precise question was presented to the Attorney General by the Secretary of State in February, 1933. In replying to the inquiry of the Secretary of State with reference thereto, the Attorney General there said:

"I do not find any provision in the Corporation Act which would prevent a corporation from decreasing its capital stock in such a way as to create a surplus, which could then be distributed to its stockholders, as provided by the certificate of decrease submitted to you by the above named corporation, and therefore I am of the opinion that you should accept this amendment and file it in your office.
"Neither do I find any provision in the Corporation Act which would prevent a corporation from issuing its capital stock at a price which would create a surplus above the amount of the capital stock, which surplus might be used for the purpose of carrying on the business of the corporation. Such a surplus would provide greater security for the creditors of the corporation and therefore could not be detrimental to them or the public generally.
“While the creation of a surplus by the methods suggested would reduce the amount of capital stock and thereby reduce the franchise tax to be paid, I am of the opinion that such a surplus may be provided by the corporation and used in its business or distributed to its stockholders, without liability for the payment of a franchise tax on such surplus, under the present provisions of our Corporation Act.”

The question as to the right of a corporation to a refund of franchise tax paid, where there was a decrease of the capital stock, has heretofore been considered by this court in the following cases, to-wit: Interstate Iron & Steel Co. vs. State, 4 C. C. R. 218; Big Four Wilmington Coal Co. vs. State, 4 C. C. R. 279; Perfection Stove Co. vs. State, 5 C. C. R. 268.

In the Interstate Iron and Steel Co. case, claimant originally had a capital stock of $7,000,000.00 and paid a franchise tax of $3,500.00 thereon for the year commencing July 1,1920. On April 26,1920 it filed in the office of the Secretary of State a certificate decreasing its stock to $6,801,900.00, pursuant to which its franchise tax should have been $3,400.95. Claimant therefore overpaid the sum of $99.05 and an award was entered for that amount.

In The Big Four Wilmington Coal Co. case, the corporation had a capital stock of $650,000.00. For some time prior to March 1, 1922 it had not been actively engaged in business but was liquidating its assets which did not exceed $13,000.00 on said first day of March, 1922. On March 6, 1922 the capital stock of the corporation was reduced from $650,000.00 to $13,000.00, and a certificate of reduction was duly filed in the office of the Secretary of State. Thereupon all shares of stock issued by the corporation were surrendered, and in lieu thereof shares were issued to the stockholders in the proportion of the reduced capital stock to the original capitalization of the Company. A franchise tax in the amount of $325.00 for the year beginning July 1, 1922 was assessed against the Company on the total capital stock of $625,000.00 whereas the amount of such tax based upon a capital stock of $13,000.00 should have been $10.00. Award was entered allowing the claimant the amount of the overpayment, to-wit, $315.00.

In The Perfection Stove Company case the claimant was an Ohio corporation authorized to do business in this State and having a capital stock of $10,000,000.00. On February 2, 1924 it filed a certificate of increase of capital stock from $10,000,000.00 to $15,000,000.00 and on June 2, 1924 filed a certificate of decrease of capital stock from $15,000,000.00 to $10,000,000.00. Franchise tax for the year commencing July 1, 1924 and ending June. 30, 1925 was assessed on the capital stock of $15,000,000.00, to-wit, a tax of $1,000.00, whereas the tax on the capital stock as it existed on July 1, 1924, to-wit, $10,000,000.00, would have been $443.75. In this case award was entered for the amount of the overpayment, to-wit, $556.25.

It appears therefore, that before a corporation can be required to pay a franchise tax, it is necessary that there be some statutory provision subjecting it to such tax, and such statutory provision, under the decisions of the courts, must be strictly construed. Under the statutes in force at that time, the claimant had the right to decrease its capital stock by the method and in the manner which it pursued. There was nothing in the law which prevented it from making such decrease in capital stock and thereby increasing its capital assets. The mere fact that the effect of such decrease in the capital stock would enable the claimant to avoid the payment of practically all of its franchise tax, does not deprive it of its legal rights in the matter. The effect of such decrease was a matter for the Legislature, and if the Legislature did not- see fit to provide for such contingency, we have no authority to do so.

In this connection it is worthy of note that the Legislature in enacting The Business Corporation Act, provided therein that a surplus created by a decrease in stated capital is to be regarded as paid-in surplus, and that the franchise tax is based upon the stated capital and paid-in surplus.

The Legislature having authorized the claimant to make a reduction in its capital stock and thereby increase its capital surplus, without providing any means for the collection of a franchise tax on such capital surplus, we have no authority to say that the claimant should be required to pay a franchise tax thereon.

Under the law in force on July 1,1933, the date on which the tax was payable, the franchise tax which claimant was required to pay was $10.00. It had previously paid a franchise tax of $1,450.00, being the amount properly assessed against it by the Secretary of State upon its capital stock as it existed at the time of the making of its capital stock tax return, and at the time of such assessment.

Having overpaid the sum of $1,440.00, without any fault on its part, claimant is entitled to a return thereof.

Award is therefore entered in favor of the claimant for the sum of Fourteen Hundred Forty Dollars ($1,440.00).


author: Per Curiam:

text:
    (Nos. 1957 to 1964, both inclusive, and No. 1974, consolidated
    Belle Moore, Nos. 1957, 1958, 1959, 1960, Mike Pelallis and Adele Pelallis, No. 1961, George W. Pemble and Hannah Pemble, No. 1962, Jess M. Hernandez and Elsie Hernandez, No. 1963, William England and Katherine England, No. 1964, William M. Easton and Norman W. Gebhardt, No. 1974, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Wilkins & Beecher, for claimants.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Per Curiam:

All of the above claims, as well as certain other claims now pending in this court, arise by reason of the construction by the respondent of the approach to the Cedar Street bridge in the city of East Peoria, all of which cases are known as East Peoria bridge cases.

All of the claimants herein are represented by the same counsel, and inasmuch as all of the cases grow out of the same transaction and involve the same questions, it has been' agreed by counsel for the respective parties, that the cases be consolidated for the purpose of this hearing.

The facts as to local conditions at and during the time involved in these cases, as well as the facts which apply generally to all of such cases, have been fully set forth in the consolidated cases of George Treharne and Rosie Treharne vs. State of Illinois, No. 1934, and Russell Youngman and Laura M. Youngman vs. State of Illinois, No. 1935, to which reference is made therefor.

The following facts with reference to drainage facilities prior to and subsequent to the construction of the improvement in question have special reference to the cases other than the Treharne and Youngman cases:

Richland Place Addition prior to thn construction of the improvement, was level, flat land with but little natural drainage. The drainage facilities consisted entirely of open ditches, there being no drain tiles whatsoever.

The improvement as originally contemplated provided for no surface drainage except by means of two 18-inch culverts, one beneath the fill on Clark Street and one beneath the fill on Sanford Street. However, after the completion of the improvement, and after the filing of some of the claims herein, a system of tile drains was installed by the State at a cost of approximately $6,000.00, in order to more adequately take care of the surface water. Such system consisted of approximately 3,730 feet of vitrified tile, with joints sealed with oakem grout laid as follows: a 10-inch tile along the south line of S. B. I. Route 121, commencing at Washington Street and extending to the intersection thereof with Monson Street; then a 12-inch tile from the last named point to the north and south alley between Clark and Monson Streets where it emptied into a large catch basin. There was also a stretch of 10-inch tile coming from the west entering into such catch basin. From such catch basin an 18-inch tile was extended south, to the east and west alley north of Maple Street; thence along said alley to the east line of Sanford ■Street, thence south on Sanford Street to connect with the drainage district ditch. There were numerous catch basins installed along the line of the fill to take care of the surface water which might flow north toward the fill or south from the side of the embankment.

There is a sharp conflict in the evidence as to the natural fall of the land and as to'drainage conditions both before and after the construction of the improvement in question. The witnesses for claimants testified that prior to the construction of S. B. I. Route 121, the natural drainage was toward the north to Roosevelt Street, then westerly along the south side of Roosevelt Street to the drainage district ditch. Witnesses for the respondent testified that the natural drainage in a general way was to the west and southwest; that the high point in the addition was a line running east and west about eighty feet south of the south line of the alley which parallels S. B. I. Boute 121; that this line formed a sort of watershed and that the lots north of said line drained naturally toward Boosevelt Street and those south of such line drained to the south and west.

The witnesses for the State maintain that the surface drainage is much better now than it was at any time prior to the construction of the improvement; that the sewer system in question is properly constructed; that there is ample fall for the same; that it is maintained by the State and is under the supervision of local highway officers; that the inlets are kept free from debris; and that all surface water properly drains off within a short time after a rain.

The witnesses for the claimants, however, state that the drainage system is improperly constructed, that it does not properly carry off the water, that the inlets or openings thereto are a substantial distance above the level of the ground and therefore do not afford proper drainage for the surface water; also that the drainage system is not properly maintained; that the openings become clogged with weeds and dirt, and that as a result thereof water stands upon claimants’ property for a considerable time after a heavy rain. Claimants whose houses have basements state that after a heavy rainfall their basements remain wet and damp for a considerable length of time, whereas such conditions never existed prior to the construction of the improvement in question.

Witnesses for the respondent contend that if there is any failure of the surface water to properly drain off, it results from the failure of the property owners to properly connect their open ditches with the sewer system installed by the State, and from the failure to keep such open ditches free from obstruction.

The facts which apply particularly to the several cases under consideration herein, to-wit, the facts as to the location of the several properties, and the character of the improvements thereon, if any, are as follows, to-wit:

No. 1957.

Albert J. Moore and Belle Moore.

Claimants, Albert J. Moore and Belle Moore, filed their claim herein as owners in joint tenancy of Lot No. 582. Since the filing of such claim Albert J. Moore died, and Belle Moore thereby became the sole owner of said lot. Upon her motion it has heretofore been ordered that the cause proceed in her name as sole claimant.

Said Lot No. 582 is located on the west side of Monson Street between S. B. I. Route 121 and Maple Street, being approximately ninety-five (95) feet south of said S. B. I. Route No. 121, and eighty (80) feet north of Maple Street;— and has a frontage of forty (40) feet on Monson Street and a depth of one hundred twenty-seven and one-half (127%) feet. The east or front line of the lot is six hundred (600) feet east of the Sanford Street fill.

This lot is improved by a six-room frame bungalow with two porches. There is a concrete block foundation, and a basement under the entire house; also an extra room for bath but bath fixtures have not been installed. The building is equipped for electricity but not for gas. There is no furnace, no sewer connection, no cesspool, and no plumbing fixtures. There is an outside toilet. The exterior side walls are of wood, and the roof is of asbestos shingles. The floors are of hardwood and the interior walls are of plasterboard construction.

The south end of the fill on the Monson Street approach to S. B. I. Route 121 is a short distance north of the north line of claimant’s lot. The surface of the lot is level with the adjoining street, and there is no direct interference with ingress or egress over Monson Street as the result of the construction of the improvement in question.

No. 1958.

Albert J. Moore and Belle Moore.

Claimants, Albert J. Moore and Belle Moore, filed their claim herein as owners in joint tenancy of Lot No. 590. Since the filing of such claim Albert J. Moore died, and Belle Moore thereby became the sole owner of said lot. Upon her motion it has heretofore been ordered that the cause proceed in her name as sole claimant.

Said Lot No. 590 is located on the west side of G-lobe Street between S. B. I. Route 121 and Maple Street, being approximately fifteen (15) feet south *of said S. B. I. Route 121, and one hundred sixty (160) feet north of Maple Street. The lot has a frontage of forty (40) feet on Globe Street and a depth of one hundred twenty-seven and one-half (127%) feet. It is bounded on the north by the alley which, is just south of and parallel with S. B. I. Route 121 at that point. The east or front line of the lot is nine hundred thirty (930) feet east of the Sanford Street fill.

The property is improved by a two-story five-room frame dwelling with a bath and enclosed porch. There is a concrete block foundation and a basement under the entire house. The building is equipped for electricity and gas, has a furna'ce, hot water heater, and bath and plumbing fixtures. There is a cesspool, but no sewer connections.

The exterior side walls are of siding, and the roof is of wood shingles. The floors and interior trim are of pine and the walls of plaster. There is a two-car garage at the rear of the home.

The Monson Street fill which constitutes the approach to S. B. I. Route 121 commences at or just south of the south line of claimant’s lot and increases to a height of three (3) feet three (3) inches at the north end of the lot and thereby constitutes a material and substantial interference with ingress and egress over Monson Street.

No. 1959.

Albert J. Moore and Belle Moore.

Claimants, Albert J. Moore and Belle Moore, filed their claim herein as owners in joint tenancy of Lot No. 592. Since the filing of such claim Albert J. Moore died, and Belle Moore thereby became the sole owner of said lot. Upon her motion it has heretofore been ordered that the cause proceed in her name as sole claimant.

Said Lot No. 592 is located on the west side of Globe Street between S. B. I. Route 121 and Maple Street, being approximately ninety-five (95) feet south of said S. B. I. Route 121, and eighty (80) feet north of Maple Street; — and has a frontage on Globe Street of forty (40) feet and a depth of one hundred twenty-seven and one-half (127%) feet. The east or front line of the lot is nine hundred thirty (930) feet east of the Sanford Street fill.

The lot is improved by a one-story frame four-room dwelling, with concrete block foundation, and has a basement under the kitchen. The building is equipped for electricity but not for gas, and has a cesspool but no sewer connections. There is no furnace, no bath, and no plumbing fixtures.

The exterior side walls are of siding and the roof is of rubberoid construction. The floors and trim are of pine and the interior walls are of plaster. There is a small one-car garage and a shed near the rear of the lot. The building is in poor condition and in need of repairs.

The north line of this lot is approximately forty (40) feet south of the south end of the Globe Street fill which constitutes the approach of S. B. I. Route 121. The surface of the lot is level with the adjoining street, and there is no interference with ingress or egress over said Globe Street on account of the construction of the improvement in question.

No. 1960.

Albert J. Moore and Belle Moore.

Claimants, Albert J. Moore and Belle Moore, filed their claims herein as owners in joint tenancy of Lot No. 594. Since the filing of such claim Albert J. Moore died, and Belle Moore thereby became the sole owner of said lot. Upon her motion it has heretofore been ordered that the cause proceed in her name as sole claimant.

Said Lot No. 594 is located on the west side of Globe Street between S. B. I. Route 121 and Maple Street, being approximately one hundred seventy-five (175) feet south of said S. B. I. Route 121, and immediately adjoining the north line of Maple Street. This lot lies at the northwest corner of the intersection of Globe and Maple Streets and has a frontage of forty (40) feet on Globe Street and a depth of one hundred twenty-seven and one-half (127%) feet on Maple Street. The east or front line of the lot is nine hundred thirty (930) feet east of the Sanford Street fill.

The property is improved by a five-room frame cottage, in good condition, with concrete block foundation, and has no basement. The building is equipped for electricity and gas, has a bathroom, city water supply, and some plumbing fixtures. There is a cesspool, but no sewer connections, and no furnace.

The exterior side walls are of siding, and the roof is constructed of asbestos shingles. The floors and interior trim are of pine, and the interior walls are of plasterboard, papered. There is a two-car garage at the rear of the house.

The north line of the lot is approximately one hundred twenty (120) feet south of the south end of the Globe Street approach to S. B. I. Route 121. The surface of the lot is level with the adjoining streets and there is no interference with ingress or egress over either of said streets on account of the construction of the improvement in question.

No. 1961.

Mike Pelallis and Adele Pelallis.

Claimants are the owners of Lot No. 583 which is located on the west side of Monson Street between S. B. I. Route 121 and Maple Street, being approximately one hundred thirty-five (135) feet south of said S. B. I. Route 121, and forty (40) feet north of Maple Street; and has a frontage of forty (40) feet on Monson Street and a depth of one hundred twenty-seven and one-half (127%) feet. The east or front line of the lot is six hundred (600) feet east of the Sanford Street fill.

The property is improved by a six-room bungalow with concrete block foundation and basement. The building is in good condition, is equipped for electricity and gas, is heated by hot water furnace (oil burner), has hot water heater, bathroom and fair plumbing fixtures. There is a cesspool but no sewer connections.

The exterior side walls are of siding, painted, and the roof is of asbestos shingle construction. The floors and interior trim are of pine, and the interior walls are of plasterboard.

The north end of this lot is approximately fifty (50) feet south of the south end of the Monson Street fill which constitutes the approach to S. B. I. Route 121. The surface of the lot is level with the adjoining street, and there is no interference with ingress or egress over Monson Street as the result of the construction of the improvement in question.

No. 1962.

George W. Pemble and Hannah Pemble.

Claimants are the owners of Lot No. 593 which is located on the west side of Globe Street between S. B. I. Route 121 and Maple Street, being approximately one hundred thirty-five (135) feet south of said S. B. I. Route 121, and forty (40) feet north of Maple Street; and having a frontage of forty (40) feet on Globe Street and a depth of one hundred twenty-seven and one-half (127%) feet. The east or front line of the lot is nine hundred thirty (930) feet east of the Sanford Street fill.

The property is improved by a one-story five-room modern frame dwelling with concrete block foundation and a basement under the entire house. The building is equipped for electricity and gas, is supplied with city water, has a bathroom and kitchenette, with the usual plumbing fixtures. There is a cesspool, but no sewer connections, and no furnace. The exterior side walls are of asbestos shingles, painted, and the roof is of the same construction. The floors and interior trim are of pine and the interior walls are of plaster. There is a four-car tile garage near the rear of the lot.

The north line of this lot is approximately eighty (80) feet south of the south end of. the aforementioned Globe Street fill. The surface of the lot is level with the adjoining street and there is no interference with ingress or egress over said Globe Street as the result of the construction of the improvement in question.

No. 1963.

Jess M. Hernandez and Elsie Hernandez.

Claimants are the owners of Lot No. 577 which is a vacant lot located on the east side of Clark Street between S. B. I. Route 121, and Maple Street, being approximately one hundred twenty-five (125) feet south of said S. B. I. Route 121, and eighty (80) feet north of Maple Street; and has a frontage of forty (40) feet on Clark Street and a depth of one hundred twenty-seven and one-half (127%) feet. The east or front line of the lot is three hundred thirty (330) feet east of the Sanford Street fill.

The south end of the Clark Street fill which constitutes the approach to S. B. I. Route 121 is approximately forty (40) feet north of the north line of this lot. The surface of the lot is level with the adjoining street and there is no material interference with ingress or egress over said Clark Street as the result of the construction of the improvement in question.

No. 1964.

William England and Katherine England.

Claimants are the owners of Lot No. 591 which is located on the west side of Globe Street between S. B. I. Route 121 and Maple Street, being approximately fifty-five (55) feet south of said S. B. I. Route 121, and one hundred twenty (120) feet north of Maple Street; and has a frontage of forty (40) feet on Globe Street, and a depth of one hundred twenty-seven and one-half (127%) feet. The east or front line of the lot is nine hundred thirty (930) feet east of the Sanford Street fill.

The property is improved by a three-room frame dwelling with two porches, and a large pantry. There is a concrete block foundation and a basement under the entire house. The building is heated by furnace, but has no bath or sewer connections and no plumbing* fixtures. There is an outside toilet but no cesspool. The exterior side walls are of three-inch siding, painted, and the roof is of rubberoid construction. The floors and interior trim are of pine and the interior walls are of plasterboard.

The south end of the fill on Globe Street, which constitutes the approach to S. B. I. Route 121, is approximately on a line with the north line of this lot. The surface of the lot is level with the adjoining street and there is no material interference with ingress or egress over said Globe Street as the result of the construction of the improvement in question.

No. 1974.

William M. Easton and Norman W. Gebhardt.

Claimants are the owners of Lot No. 573 which is situated on the west side of Clark Street between S. B. I. Route 121 and Maple Street, being approximately one hundred eighty-five (185) feet south of said S. B. I. Route 121, and forty (40) feet north of Maple Street; and has a frontage of forty (40) feet on Clark Street, and a depth of one hundred twenty-seven and one-half (127%) feet. The east or front line of the lot is two hundred seventy (270) feet east of the Sanford Street fill.

The property is improved by a one-story three-room dwelling house with concrete block foundation, and no basement. The building is of very cheap construction, and is in a poor state of repair. The exterior side walls are of stained shingles and the roof is of rubberoid construction. The floors and interior trim are of pine and the interior walls are of plasterboard. The building is equipped for electricity but not for gas; has no sewer connections, no cesspool, no bathroom, no furnace, and no plumbing fixtures. There is a small shed, and an outside toilet.

The north line of this lot is approximately eighty (80) feet south of the south end of the aforementioned Clark Street fill. The surface of the lot is level with the adjoining street and there is no interference with ingress or egress over said Clark Street as the result of the construction of the improvement in question.

Claimants contend that their several properties have been depreciated in value as the result of the construction of the improvement in question, and base their claims upon the following elements of damage, to-wit:

1. Dust blowing from the roadway.

2. Fumes from, and noise of passing automobiles.

3. Interference with the circulation of air over said properties.

4. Interference with their right of access.

5. Interference with the natural drainage, and failure on the part of the respondent to provide proper drainage.

A brief review of the authorities on the legal questions involved in claimants’ contentions is necessary for a proper determination of the issues in all of these cases.

Where private property is not taken, but is damaged for public use, the property owner is entitled to recover the damages which his property has sustained, and the proper measure of damages in such case is the difference between the fair cash market value of the property unaffected by the improvement and its fair cash market value as affected by it.

Dept. of Public Works vs. McBride, 338 Ill. 347.

Dept. of Public Works vs. Caldwell, 301 Ill. 242.

Brand vs. Union Elevated Co., 258 Ill. 133.

Benefits to land not taken may be set off against damages to land not taken. Damages must be direct and proximate, and not such as are merely speculative and remotely contingent.

Dept. of Public Works vs. McBride, 338 Ill. 347.

Depreciation in market value will not sustain a claim for damages to land not taken, unless it is from a cause wkick the law regards as a basis for damages.

Illinois Power & Light Corporation vs. Talbott, 321 Ill. 538.

Rockford Electric Co. vs. Browman, 339 Ill. 212.

What elements of damage, then, may be taken into consideration in determining whether there has been a depreciation in the value of claimants’ property for which compensation must be made?

The Constitution of 1848 provided that private property should not be taken for public use without just compensation. No provision was made for property damaged, but not taken, and numerous cases arose in which a decided hardship was worked upon certain property owners whose property was seriously damaged but not taken, and who were therefore denied any compensation therefor. To remedy this situation, a change was made in the Constitution of 1870, and Section 13 of Article Two of such Constitution' now provides that “Private property shall not be taken or damaged for public use without just compensation.” The difference, in effect, between the two constitutional provisions is clearly set forth in the case of Rigney vs. City of Chicago, 102 Ill. 64 in which the Supreme Court, on page 78, said:

“Under the Constitution of 1848 it was essential to a- right of recovery, * * * that there should be a direct physical injury to the corpus or subject of the property, such as overflowing it, casting sparks or cinders upon it, and the like; but under the present Constitution it is sufficient if there is a direct physical obstruction or injury to the right of user, or enjoyment, by which the owner sustains some special pecuniary damage in excess of that sustained by the public generally, which, by the common law, would, in the absence of any constitutional or statutory provisions, give a right of action."

In the case of Otis Elevator Co. vs. City of Chicago, 263 Ill. 419, the court said, “The doctrine of the Rigney case has not been modified, limited, extended or departed from in any degree ’ ’; — and such doctrine has been strictly adhered to and followed in many cases since the Otis Elevator case.

In the case of Illinois Power and Light Corporation vs. Talbott, 321 Ill. 538, the Supreme Court quoted with approval from the case of Otis Elevator Co. vs. City of Chicago, 263 Ill. 419, and also said:

“It was expressly or by necessary implication held in the Loeb case, the Aláis case and the Otis Elevator Co. case, that the measure of damages and the rules of evidence are the same in an action at law as in a condemnation proceeding, and it is repeatedly said that it is clear that the provision in the Constitution of 1870 toas not intended to reach every possible injury that might be occasioned by a public improvement, and that to warrant a recovery it must appear that there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his properiy and which gives it an additional value, and by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. The physical disturbance need not be a physical disturbance or direct injury of the tangible object of property rights, but must be a disturbance of a right which the owner enjoys in connection with his oionership of the tangible object.”

The foregoing statement of the law has been approved in numerous cases since decided. Illinois Power Co. vs. Wisland, 324 Ill. 411; Illinois Power and Light Corporation vs. Barnett, 338 Ill. 499; Rochford Electric Co. vs. Browman, 339 Ill. 212.

In the City of Winchester vs. Ring, 312 Ill. 544, in considering a similar question, the court said:

“The provision of the Constitution that private property shall not be damaged for public use was not intended to reach every possible injury that may be occasioned by a public improvement. If an obstruction or improvement does not practically affect the enjoyment or use of property not taken, and thereby impair its value, no action will lie. To sustain an action for such damages the damage must be to property and not a mere personal inconvenience or injury, such as damage to trade or business. If the injury amounts only to an inconvenience or discomfort to the occupants of the property but does not affect the value of the property, it is not within the provision of the Constitution even though a personal action would lie therefor. The injury complained of must also be actual, susceptible of proof and . capable of being approximately measured, and must not be speculative, remote, prospective or contingent. To warrant a recovery the damage must be different in hind from that sustained by the people of the whole neighborhood. If it differs only in degree from that suffered in common by the people of the neighborhood the injury is not within the provision of the Constitution. Illinois Central Railroad Co. vs. Trustees of Schools, 212 Ill. 406; Hohmann vs. City of Chicago, 140 id. 226.”

That an abutting property owner may not be deprived without compensation, of the right to have light and air from the public highway, unobstructed by any encroachment on the street has been held in numerous cases. Field, et al. vs. Barling, 149 Ill. 556; Barnard vs. City of Chicago, 270 Ill. 27; Gerstley vs. Globe Werneke Co., 340 Ill. 270.

This right of an abutting property owner to light and air from the adjoining street, however, does not give either of two adjoining owners of private property, a similar right over the property of the other, as the English doctrine of the prescriptive right of an owner of private property to unobstructed passage of light and air over the adjoining property does not apply in this State. Guest vs. Reynolds, 68 Ill. 478; Keating vs. Springer, 146 Ill. 481; Baird vs. Hanna, 328 Ill. 436.

In the case of Nix vs. C. P. & St. L. Ry. Co., 137 Ill. 141, the court held that so far as the noise of passing trains would have a tendency to render plaintiff’s premises less desirable as a place of residence and therefore less valuable in the market, such noise was a proper element of damage.

In the case of C. M. & St. P. Ry. Co., et al. vs. Darke, 148 Ill. 226, it appeared from the evidence that a railway was constructed opposite the plaintiff’s premises and just across the avenue therefrom; that smoke, ashes and cinders in a considerable amount were blown from the railway onto the premises of the plaintiff, and the Supreme Court there held that the plaintiff was entitled to recover damages therefor.

In the case of C. P. & St. L. Ry. Co. vs. Leah, 152 Ill. 249, it appeared that the defendant’s railway track crossed a street diagonally, opposite the plaintiff’s premises, and only six and one-half feet therefrom at the nearest point; — and the court there held that the noise made by railway trains in passing and repassing was a proper element of damage.

In the case of Aldrich vs. Metropolitan West Side Elevated Railway Co., 195 Ill,. 456, the plaintiff owned two lots fronting west on Ashland Boulevard in Chicago, and improved by an expensive apartment building, and the defendant constructed an elevated electric railway on its private right-of-way in an easterly and westerly direction, across Ashland Boulevard, thirty-one feet north of plaintiff’s apartment building. Plaintiff charged that on account of the darkening of the boulevard and the running of trains over it, his premises were deprived of air, ventilation and quiet, and that passage along the boulevard to and from his premises had been interrupted and access thereto had been impaired, and that he had also been damaged by reason of the noise of the trains, etc. In that case the Supreme Court distinguished the Darke case (148 Ill. 226) and the Leah case (152 Ill. 249) on the ground that in each of those cases there was a direct physical disturbance of a public right which the plaintiff enjoyed in connection with his property, which gave to it an additional value, and that he sustained special damages with respect to his property, different from and in excess of that sustained by the public generally; — nnd in discussing the question said:

“The damages sued for are of the same kind and character as those sustained by the public generally in the ownership of property, which property may have been lessened in value by the construction and operation of the road. Noise, the obstruction of light and of view, are necessary incidents to the construction and operation of such roads and if every property owner could recover in all such cases, the making of public improvements .would become practically impossible. * * * Whatever damage plaintiff may have suffered in depreciation of the value of her property was of the same kind and character as that suffered by the public generally, and common to the owners of property in a large city where noise, confusion and the disturbance of quiet appear to be the necessary results of the activities of city life.”

The last mentioned case has never in any way been modified or overruled.

The cases cited by claimants involving claims for damages on account of dust, smoke, noise, etc. are all cases in which either steam or electric railways were involved. Our attention has not been called to any case in which damages have been allowed to an adjoining or nearby property owner as the result of noise, dust, or fumes arising from automobile traffic on a public highway.

It has been repeatedly held by our Supreme Court that inconvenience, expense, or loss of business necessarily occasioned to the owners of abutting property during the progress of the work by the construction of a public improvement, do not constitute damage to property not taken, within the meaning of the Constitution, but merely a burden incidentally imposed upon private property adjacent to a public work, and without which such improvements can seldom be made, and therefore give no cause of action against a municipality therefor. Osgood vs. City of Chicago, 154 Ill. 194; Lefkovitz vs. City of Chicago, 238 Ill. 23; Chicago Flour Co. vs. City of Chicago, 243 Ill. 218; Peck vs. Chicago Railways Co., 270 Ill. 35, 40.

The Supreme Court of this State has held in numerous cases that where a property owner’s right of access to his property has been destroyed or interfered with, he is entitled to compensation for the damages sustained. Rigney vs. City of Chicago, 102 Ill. 64; Barnard vs. City of Chicago, 270 Ill. 27; Lydy vs. City of Chicago, 356 Ill. 230. As said in the case of C. Hacker Co. vs. City of Joliet, et al., 196 Ill. App. 415:

“The difficulty lies in exactly defining this right of access; that it cannot he confined to the immediate access from street on which the premises abut is clear on the authority of Rigney vs. City of Chicago, 102 Ill. 64. * * * That it cannot be extended to interference with an abutting owner’s access to his property by vacating or obstructing a street two or three blocks away is equally clear from the authority of City of Chicago vs. Union Bldg. Assn., 102 Ill. 379.”

In the Eigney case, the City of Chicago constructed a viaduct along Halsted Street and across Kinzie Street. Eigney was the owner of certain property located on Kinzie Street about 220 feet east of the viaduct and claimed that it cut off his communication with Halsted Street except by way of a stairs. It was held in that case that he was entitled to recover damages for an interference with his right of access.

In the case of City of Chicago vs. Union Bldg. Assn., 102 Ill. 379, it was held that the closing of LaSalle Street in Chicago by the Board of Trade Building three and one-half blocks from the owner’s abutting property did not have a right of action because the owner was not specifically or. particularly injured.

In Elliott on Eoads and Street, 3d edition, Volume 2, Section 1181, the rule is set forth as follows:

“Owners of land abutting upon neighboring streets or upon other parts of the same street, at least when beyond the next cross street, are not, however, entitled to damages, notwithstanding the value of their lands may be lessened by its vacation or discontinuance.”

In Lewis on Eminent Domain, 2d edition, Volume 1, Section 227, the author, after commenting on the Eigney case and other eases to the same effect, says (page 537):

“These cases settle the doctrine that an obstruction or interference with a public street or way, need not necessarily be in front of or contiguous to the property claimed to be affected thereby, in order to authorize a recovery. It is sufficient if it is such an obstruction or interference as produces a diminution in the value of the property, as distinguished from mere personal inconvenience to the owner.”

In the case of Gibbons vs. Paducah & Ill. R. R. Co., 284 Ill. 559, the Supreme Court, on page 563, said:

“Appellant’s contention that to authorize a recovery in such a case as this the property, or some part of it, must abut on a street at the point vacated or obstructed is untenable. If the right to use the streets as a means of passing to and from his property is prevented or interfered with, it is a special damage to the property owner. It would seem absurd to say if obstructions had that effect still there could be no recovery unless the property abutted or bordered the street at the place of the obstruction. The mere right to pass to the property from a part of the street upon which the property abutted, and from the property to the street, when but a short distance from the property the street was so obstructed that no passageway was afforded beyond the obstruction, would be attended with the same character of injury as if the property abutted the obstruction.”

While a city may change the grade of a street at its own pleasure, yet, when the grade is changed and sewers or drains are constructed in an imperfect manner, or where the inlets are negligently permitted to become obstructed, so that surface water cannot be carried off, and an adjoining property owner is damaged thereby, the city is liable for such damage.

Nevins vs. City of Peoria, 41 Ill. 502.

City of Elgin vs. Kimball, 90 Ill. 358.

Bouillon vs. City of Greenville, 233 Ill. App. 500.

In cases involving damage to land not taken, the burden of proof is upon the property owner to prove the damages claimed.

Illinois Power and Light Corp. vs. Barnett, 338 Ill. 499.

East St. Louis Light Co. vs. Cohen, 333 Ill. 218.

Illinois Power and Light Corp. vs. Talbott, 321 Ill. 538.

To set forth herein the application of the principles of law above set forth to the facts in each pafticular case, would extend this opinion to undue length. Suffice it to say that upon consideration of all of the evidence, so far as the same aplies to the several claims, and the view of the several properties as taken by the court, and upon consideration of the law, as the same applies to the facts in each case, we have reached the following conclusions, to-wit:

1. As to the claims for damages on account of dust blowing from the roadway, fumes from passing automobiles, and interference with the circulation of air over the premises of the several claimants; — none of the claimants have shown any depreciation in the value of their respective properties, for which they are entitled to damages.

2. As to claims for damages on account of interference with the natural drainage, etc., Lots 577, 582, 590, 591 and 592 have each been depreciated in value to some extent, as the result of the construction of the improvement in question, the amount of depreciation in each case varying with the particular lot. Future damages can be obviated in each case by connecting the open ditches or other means of drainage of such lots with the sewer system installed by the respondent.

3. As to claims for damage on account of interference with the right of access, each and all of the lots involved in this proceeding have been depreciated in value to some extent as the result of the construction of the improvement in question, the amount of such depreciation in each case varying with the particular lot.

4. The total depreciation in value of each and all of the lots involved in this proceeding, as hereinbefore set forth, as the result of the construction of the improvement in question is as follows:

Lot 582 — Albert J. Moore and Belle Moore.................. $450.00
Lot 590 — Albert J. Moore and Belle Moore.................. 900.00
Lot 592 — Albert J. Moore and Belle Moore.................. 350.00
Lot 594 — Albert J. Moore and Belle Moore.................. 275.00
Lot 583- — Mike Pelallis and Adele Pelallis.................. 450.00
Lot 593 — George W. Pemble and Hannah Pemble........... 300.00
Lot 577 — Jess M. Hernandez and Elsie Hernandez.......... 50.00
Lot 591 — William England and Katherine England......... 400.00
Lot 573 — William M. Easton and Norman W. Gebhardt...... 75.00

It is Therefore Ordered that awards be and the same are hereby entered in favor of the several claimants hereiy as follows, to-wit:

No. 1957 — Belle Moore, owner of Lot 582, Four Hundred Fifty Dollars ($450.00).
No. 1958 — Belle Moore, owner of Lot 590, Nine Hundred Dollars ($900.00).
No. 1959 — Belle Moore, owner of Lot 592, Three Hundred Fifty Dollars ($350.00).
No. 1960 — Belle Moore, owner of Lot 594, Two Hundred Seventy-five Dollars ($275.00).
No. 1961 — Mike Pelallis and Adele Pelallis, owners of Lot 583, Four Hundred Fifty Dollars ($450.00).
No. 1962 — George W. Pemble and Hannah Pemble, owners of Lot 593, Three Hundred Dollars ($300.00).
No. 1963 — Jess M. Hernandez and Elsie Hernandez, owners of Lot 577, Fifty Dollars ($50.00).
No. 1964 — William England and Katherine England, owners of Lot 591, Four Hundred Dollars ($400.00).
No. 1974 — William M. Easton and Norman W. Gebhardt, owners of Lot 573, Seventy-five Dollars ($75.00).


author: Mb. Justice Linsoott

text:
    (No. 2364
    William Moore, Sadie Moore and Harry Stretch, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Claimants, pro se.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attornéy General, for respondent.
   Mb. Justice Linsoott

delivered the opinion of the court:

This claim was filed April 18,1934, for the sum of $68.16 and arises from groceries and foods furnished by the claimants during the months of February and June, 1933, to the Illinois Soldiers and Sailors Children’s Home. Itemized statements of the account were filed and audited by the proper department, and it is stated that the account is true and just, and that for some unknown reason, either oversight or negligence, a former chief clerk in that institution neglected to voucher these bills when due, and allowed them to lapse and become delinquent. We have formerly held that where facts are undisputed, that the State received supplies as ordered by it, and that the bill therefor was not presented for payment before lapse of appropriation out of which it could be paid, an award for the amount due will be made.

The Attorney General states that this case comes clearly within that rule, and he has no objection to an award being made for the amount of that claim, namely $68.16.

Therefore, an award is made in this case in the amount of $68.16 in favor of the claimants.


author: Mb. Justice Linscott

text:
    (No. 2494
    Morton Salt Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Stearns & Jones, for claimant.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

The claimant charges that on March 15, 1933, the State mailed to it, and generally published, a notice and request that it would, on April 6, 1933, at 2 o’clock P. M. at the office of the Division of Purchases and Supplies of the Department of Purchases and Construction, State House, Springfield, Illinois, receive proposals and bids for furnishing 50 tons of crushed rock salt, to be used at the Manteno State Hospital, Manteno, Illinois, and the specifications were also included in the advertisement.

Pursuant to that notice, claimant submitted a bid to furnish the salt at the rate of $6.36 a net ton, or the sum of $318.00 for the 50 tons. In response to that bid, the proper State officials mailed to claimant on April 27,1933, a purchase order, known as No. D-58734, and being requisition No. Q.64, accepting said bid of claimant, and requested that the salt be shipped to the hospital aforesaid. On May 4, 1933, claimant shipped 50 tons of salt and it was duly received at the Manteno State Hospital on or about May 6, 1933. Some delay occurred, and invoice was not received in time to be paid from the then current appropriation.

No question arises about the facts, and claimant should be paid. We, therefore, make an award in the sum of $318.00 in favor of claimant.