author: Mr. Chief Justice Hollebich

text:
    (No. 2046 —
    Elbert J. Crabtree, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1933.

    A. B. Johnson, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollebich

delivered the opinion of the court:

Prior to and on the 20th day of September, A. D. 1931, the claimant was employed by the State of Illinois as an automobile investigator in connection with the office of the Secretary of State. On the last mentioned date, he was called to Springfield by his superior officer for instructions relative to the duties of his office. While returning to his home on said date, at about eight o’clock p. m. and while traveling in a southerly direction on S.B.I. Route No. 4, at a point about one mile south of the corporate limits of Springfield, the motor vehicle then being operated by the claimant, was sideswiped by a truck and trailer without lights, which were proceeding in the opposite direction. The car which claimant was driving was swung across the road and into the ditch, and he avers that he sustained severe and permanent injuries, to-wit, the total loss of the use of the left arm, and that he has expended substantial sums for hospital and medical attention, and makes claim for compensation under the Workmen’s Compensation Act.

The accident in question occurred on September 20th, 1931. The evidence fails to show that any claim for compen.sation was made within six months after the accident, or that any compensation was paid by the respondent, but does show that the declaration was not filed until more than one year had elapsed after the date of the injury.

The Attorney General has filed a motion to dismiss the claim for want of jurisdiction on the following grounds, to-wit:

1. The failure of the claimant to make claim for compensation within six months after the accident.

2. The failure of the claimant to file a declaration or application for compensation within one year after the date of the injury, as required by the terms and provisions of the Compensation Act.

The jurisdiction of the Court of Claims in cases of this character is derived from Paragraph six (6) of Section six (6) of “An Act to Create the Court of Claims, and to Prescribe its Powers and Duties,” which provides that the Court of Claims shall have power:

“To hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any employee of the State, such determination to be made in accordance with the rules prescribed in the Act commonly called the ‘Workmen’s Compensation Act’, the Industrial Commission being hereby relieved of any duty relative thereto.”

The Attorney General contends that by virtue of such provision this court is vested with the same jurisdiction in claims for compensation of State employees as that possessed by the Industrial Commission in cases properly before it, and that in the consideration of this case, the court must be guided by the provisions of the Workmen’s Compensation Act, with particular reference to Section twenty-four (24) of such Act which provides that “no proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident;” also that “unless application for compensation is filed with the Industrial Commission within one year after the date of the injury, or within one year after the date of the last payment of compensation, the right to file such application shall be barred. ’ ’

The claimant contends that the aforementioned provisions of Section twenty-four (24) of the Compensation Act have no application to this case, and that the only limitation on the right of the claimant to file his declaration or application is the five-year Statute of Limitations, provided by Section ten (10) of the Court of Claims Act, and that the provisions of the Workmen’s Compensation Act are. to be considered and applied by this court only in determining the amount of compensation to be paid.

It is a well established rule of law that a statute may adopt a part or all of another statute by a specific reference thereto, and the effect thereof is the same as though the statute or part thereof referred to, had been written into the adopting statute.

The case of the Zurich Accident Insurance Co. vs. Industrial Commission, 331 Ill. 576, was a case arising under the Occupational Diseases Act. Paragraph three (3) of Section Fifteen (15) of such Act, provided, among other things, that “proceedings for compensation hereunder shall be had and maintained in the same manner as is now or may be hereafter provided by the Workmen’s Compensation Act with reference to proceedings for compensation for accidental injuries,” etc.

It was contended in that case that Section thirteen (13) of the Constitution of this State was violated by reason of the reference to and incorporation of the provisions of the Workmen’s Compensation Act in the Occupational Diseases Act without inserting such provisions at length in the Occupational Diseases Act. The court in that case (p. 580) said:

“The effect of that section is to incorporate into the Act all of the provisions of the Workmen’s Compensation Act applicable. This is simply the familiar legislative process of adopting certain portions of another statute by reference. It is a method of legislation which is frequently followed and has uniformly been held to he free from, constitutional objections. The effect of such reference is as though the statute or the provisions adopted had been incorporated bodily into the adopting statute.”

The same rule is recognized and applied in the following cases, to-wit: Evans vs. Illinois Surety Co., 298 Ill. 101; Zeman vs. Dolan, 279 Ill. 295; People vs. Crossley, 261 Ill. 78.

In the case of Evans vs. Illinois Surety Co., supra, the Supreme Court, on page 106, quoted with approval the following rule which was laid down in the case of Zeman vs. Dolan, supra, to-wit:

“Whenever an Act of the Legislature confers powers which are recited in another Act, the Act to which reference is made is to he considered and treated as if it were incorporated into and made a part of the Act which contains the reference.”

It follows, therefore, that the terms and provisions of the Workmen’s Compensation Act, so far as they may be applicable, must be considered by this court in this case the same as though they were incorporated bodily into the Court of Claims Act.

The contention of the claimant to the effect that the provisions of the Workmen’s Compensation Act are to be considered and applied by this court only in determining the amount of compensation, is untenable. Paragraph six (6) of Section six (6) of the Court of Claims Act gives this court power “to hear and 'determine the liability of the State for accidental injuries,” etc., etc., and further provides that such determination shall be made in accordance with the rules prescribed by the Workmen’s Compensation Act; and that the Industrial Commission is relieved of any duty thereto.

It seems clear that this court must, in the first instance, consider and determine the question as to whether there is a liability on the part of the State, and that in such consideration and determination, this court must be governed by the provisions of the Workmen’s Compensation Act. In short, this court has the same jurisdiction with reference to claims for compensation for accidental injuries or death suffered in the course of employment by any employee of the State as that possessed by the Industrial Commission in claims of other persons whose rights must be determined by the Compensation Act.

Such being the case, the question arises as to the effect of the aforementioned provisions of Section twenty-four (24) of the Compensation Act relative to making claim for compensation within six months, and filing application for compensation within one year after the date of the injury, when considered in connection with Section ten (10) of the Court of Claims Act which provides that every claim against the’ State cognizable by the Court of Claims shall be forever barred unless filed within five (5) years after the claim first accrues.

In considering a similar proposition, our Supreme Court, in the case of Robbins vs. Lincoln Park Commissioners, 332 Ill. 571, stated the rule as follows (p. 579):

“The rule is, that where there is to be found in a statute a particular enactment, it is to be held operative as against the general provisions on the subject either in the same Act or in the general laws relating thereto. Handtoffski vs. Chicago Traction Co., 274 Ill. 282; City of Chicago vs. M. & M. Hotel Co., 248 id. 264; City of Cairo vs. Bross. 101 id. 475.”

In the case of Handtoffski vs. Chicago Traction Co., 274 Ill. 282, the Supreme Court (p. 286) said:

“It is a rule in the construction of statutes that ‘where there is in the same statute a particular enactment and also a general one, which in its most comprehensive sense would include what is embraced in the former, the particular enactment must he operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment.’ Endlich on Interpretation of Statutes, sec. 399; Chicago and Northwestern Railway Co. vs. City of Chicago, 148 Ill. 141.”

The rule is also stated in 59 Corpus Juris, p. 1056, as follows:

“Where there is one statute dealing with a subject in general and comprehensive terms, and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but to the extent of any necessary repugnancy between them, the special statute, of the one dealing with the common subject matter in a minute way, will prevail over the general statute, unless it appears that the legislature intended to make the general Act controlling.”

Section ten (10) of the Court of Claims Act which provides in substance that every claim against the State cognisable by the Court of Claims shall be forever barred unless the claim is filed within five years after the claim first accrues, is a general enactment which has application to all claims against the State. The terms and provisions of Section twenty-four (24) of the Compensation Act constitute a special enactment which has reference only to claims against the State “for accidental injuries or death suffered in the course of employment by m%y employee of the State.” Applying such conclusions to this case, the terms and provisions of the 'special enactment, that is to say the terms and provisions of Section twenty-four (24) of the Compensation Act, must prevail over the general five year Statute • of Limitations prescribed in the Court of Claims Act.

The effect of such holding is to establish a uniform rule with reference to making claim for compensation and filing application for compensation in all cases determined by the Workmen’s Compensation Act, whether the claim be against the State or any other employer. To hold otherwise would establish one rule for State employees and an entirely different rule for any other employees; would permit State employees to recover compensation in cases under the Act if they make application within five years after the accident, even though no prior claim for compensation had ever been made; while other employees would be required to make claim for compensation within six months after the accident and file their applications for compensation within one year after the date of the injury or within one year after the date of the last payment of compensation. We cannot conceive that the Legislature intended to make such an unjust distinction.

Furthermore, Section three (3) of the Compensation Act provides that “The provisions of this Act * * * shall apply * * * to the State, County, City, Town, Township, Incorporated Village, or School District, Body Politic or Municipal Corporation, and to all employers, and all their employees engaged in any department of the following enterprises or businesses,” etc., etc.

Section four (4) of such Act provides that the term “employer” shall be construed to be “First — The State, and each County, City, Town, Township, Incorporated Village, School District, Body Politic or Municipal Corporation therein,” etc.

Section five (5) of such Act provides that the term employees ’ shall be construed to mean 11 First — Every person in the service of the State, County, City, Town, Township, Incorported Village or School District, Body Politic or Municipal Corporation therein,” etc.

It will be noted that in the foregoing provisions the State stands on exactly the same footing as the County, City, Town, Township, Incorporated Village, School District, Body Politic, Municipal Corporation, and all others named in such sections.

So far as we have been able to ascertain, all of the provisions of the Act apply with equal force to the State and to other employers named in the Act; and also apply with equal force to the employees of the State and to other employees named in the Act.

Apparently.the framers of the Act intended that the provisions thereof should apply with equal force to the State and to all others coming within the provisions thereof.

As previously stated, the record fails to show that any claim for compensation was made within six months after the accident, or that any compensation was paid by the respondent; but does show that the declaration was not filed until more than one year had elapsed after the date of the injury. It remains to consider the effect of the failure to comply with the aforementioned requirements of Section twenty-four (24) of the Compensation Act.

In the case of City of Rochelle vs. Ind. Com. 332 Ill. 386, our Supreme Court held that the making of claim for sompensation within the time required by the statute is jurisdictional, and is a condition precedent to the right to maintain a proceeding under the Compensation Act. The same conclusion was reached in the following cases, to-wit: Inland Rubber Co. vs. Ind. Com., 309 Ill. 43; Bushnell vs. Ind. Com., 276 Ill. 262; Haiselden vs. Ind. Board, 275 Ill. 114.

In the case of DuQuoin School District vs. Ind. Com., 329 Ill. 543 it was held that where application for compensation is not filed within one year after the date of the injury, or within one year after the date of the last payment of compensation, the claim is absolutely barred. The same rule was laid down in the case of Chicago Board of Underwriters vs. Ind. Com., 332 Ill. 511.

The making of claim for compensation, and the filing of application for compensation within the time required by the Act being a condition precedent to the right of the claimant to maintain this proceeding this court is without jurisdiction to proceed with the hearing. Inland Rubber Co. vs. Industrial Commission, 309 Ill. 43.

Although claimant in his declaration avers that “he comes within the provisions of the Workmen’s Compensation Act of 1911, as amended, and that his said employment is extra-hazardous within the meaning and intent of Section three (3) of said Act,” yet in his brief filed in opposition to the motion of the Attorney General to dismiss the case, he disclaims such averment and states that his claim is filed” under the provisions of the Court of Claims Act, and upon the broad general recognized principal that the State of Illinois will do justice to an injured employee of the State.

This, in effect, is a reliance upon what is sometimes known as the doctrine of equity and social justice, and inasmuch as there are a number of claimants before this court who are invoking that doctrine, and who apparently contend that this court has unlimited jurisdiction and power to make an award against the State in any case where there are any equities in-their favor, the court will give due consideration to the question thus raised.

Paragraph twenty-six (26) of Article four (4) of the Constitution of 1870 provides as follows: “The State of Illinois shall never be made defendant in any court of law or equity. ’ ’

Prior to 1877 there was no tribunal in this State wherein claims against the State could be heard and determined. In 1877, the Legislature created the Commission of Claims, to be composed of one judge of the Supreme Court, and two circuit judges of the State, and in the Act creating such commission, provided that “it shall be the duty of said Commission to hear and determine all unadjusted claims of all persons against the State of Illinois, and said Commission shall hear and determine such claims according to the principles of equity and justice, except as otherwise provided in the laws of this State.” The Commission of Claims continued to function without any substantial change in the powers above enumerated until 1903. In that year the Court of Claims was created by the Legislature, and in the Act creating such court, after setting forth specifically the character of claims which the court was authorized to hear and determine, it was provided in Section three (3) of the Act as follows: “And such court shall hear such claims according to its rules and established practice, and determine the same according- to the principles of equity and justice, except as otherwise provided in the laws of this State.” Such provisions remained in force until 1917 when the present Court of Claims was created.

Paragraph four (4) of Section six (6) of the Act of 1917 as then enacted and as now in force, provides that the Court of Claims shall have power to “hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu, and ex delicto, which the State as a sovereign commonwealth, should, in equity and good conscience, discharge and pay.”

It will be noted that both the aforementioned Commission of Claims Act of 1877, and the original Court of Claims Act of 1903, provided for the determination of the claims over which the court was given jurisdiction “according to the principles of equity and justice;” while the present Act provides for the hearing and determination of “all claims and demands * * * which the State, as a sovereign commonwealth, should, in equity and good conscience, discharge and pay.”

The first case involving the construction of the aforementioned provision of the Act of 1877 was the case of Schmidt vs. State, 1 Ct. Cl. 76, decided in 1890. In that case, the claimant, who was in the employ of the State as a cell-house keeper at the Southern Illinois Penitentiary at Chester, sought to recover damages for injuries sustained as the result of an assault made upon him by one of the convicts in such penitentiary while the claimant was in discharge of his duty. The Commission rejected the claim on the grounds that the State was not liable and stated that “if it be conceded which the proof leaves in some doubt, that this convict obtained the stick used by him in an attack upon claimant, through the negligence or carelessness of some employee, then the rule of law seems to be firmly settled that the State * * * cannot be held liable for the tort of any of its employees unless such liability is created by the statute * * *. The law creating this Commission does not undertake to create a new liability against the State but provides a method by which the claims against the State may be heard before this Commission.” In its opinion the Commission further said:

“The point has been pressed in argument by counsel for claimant that the Legislature would have the right in a case of this kind, in its discretion, to allow a reasonable sum to persons injured, making an appropriation for its payment, although the claim was strictly speaking, neither a legal or equitable claim, and that the intent of the Act creating this Commission was to transfer to the Commission the same discretionary power that the Legislature would have; or, in other words, that the Commission would be justified although believing the claim was neither an equitable nor legal claim against the State, in its discretion to make an award against the State and in favor of the claimant. To this proposition we cannot assent. It is our understanding that in the use of the language ‘to determine the same according to the principles of equity and justice’ is meant and used with a legal signification and that this Commission has no power to make an award in any case unless the facts show a legal or equitable claim against the State. We do not believe it was the intention of the Legislature to leave it discretionary with the Commission to make an award in favor of the claimant regardless of the question as to whether he had a legal claim against the State.
We are of the opinion, further, that it would be an exceedingly dangerous precedent to hold that the Commission had any such discretion. While it is true and we have endeavored in this case to find some principle upon which we might make an award in favor of this claimant, that his health and usefulness has been practically destroyed, recognizing that it is one of those cases appealing strongly to the sympathy of those who have heard this evidence, or are familiar with the facts of the case and we cannot but believe that i'f the facts of this case are presented to the Legislature of this State that some relief will be granted to this unfortunate claimant; but, at the same time we feel compelled to hold that we have no power, under the facts, to make an award in his favor and for that reason we reject the claim.”

In the case of Henke vs. State, 2 Ct. Cl. 11, decided after the creation of the original Court of Claims, in 1903, the law as set forth in the case of Schmidt vs. State, was approved, and the court there declared that the opinion rendered in the Schmidt case “has been an established principle, closely followed by this court ever since, in the adjudication of similar cases.” This court in the Henke case further stated:

“The Act of 1903, creating the Court of Claims, successor to the Commission of Claims, re-enacts the section referred to, and, since the passage of the Act of 1903, this Court has still uniformly held to the doctrine that in the establishment of this tribunal, it was not the intention to create a new class of claims against the State, but to provide a tribunal to determine those claims against the State which civilized governments have always recognized.”

In the case of Jorgenson vs. State, 2 Ct. Cl. 134, this court said:

“In the adjudication of claims filed against the State of Illinios, this Court, from the nature and purposes of its creation, is limited to a consideration of the question, whether, from the facts alleged and proven, any legal liability attaches to the State and no authority or power is vested in this Court to allow any claim presented for consideration unless the facts alleged and proven show the existence of such a legal liability.”
* * * *******
“In passing upon the demurrer herein interposed, the Court recognizes the meritorious nature of the claim presented, the unfortunate character of the occurrence and the resulting consequences to the claimant, but being limited, as before stated, to a consideration of the issues involved from the standpoint of the legal liability of the State in such cases, this Court is forced to sustain the demurrer."

In the case of Morrisey vs. State, 2 Ct. Cl. 254, the court, on page 270 said:

"This Court has repeatedly held, that the statute which creates this Court does not increase or enlarge the liability of the State, but provides only the forum, wherein claims may be adjudicated according to the principles of equity and justice, except as otherwise provided by law. * * * This appears to be a harsh rule, but we do not'make the law and can only interpret it as we find it, and much as we would like to find a judgment for the claimant in this case, considering the facts as they are we must reject this claim,”

In the case of Ryan vs. State, 4 Ct. Cl. 57, which arose under the present Act, this court said:

"Counsel for claimant contends that the Act of 1917, creating the Court of Claims, has practically repealed the rule that the doctrine of respondent superior does not apply to the State, and that this Court should hear and allow claims of this kind on the ground that they should appeal to the good conscience and equity of the Court. This Court has held in other cases presented at this term of Court, that said Act does not authorize this Court to allow any claims which are not based on principles of law and equity, however much such cases might appeal to the sympathies of the Court * * * The claim is therefore rejected.”

We are cognizant of the fact that some time after the decision of the court in the Ryan case, supra,, in a number of decisions which apparently held a strong appeal to the sympathy of the court, it departed from the strict rule laid down in the cases hereinbefore referred to, and thereafter allowed certain claims on which there was no legal liability against the State, on grounds which were characterized, first, as social justice, then as social justice and equity, and after-wards as equity and good conscience.

This continued for some time, and thereafter the court evidently becoming aware of the dangerous tendency of its decisions and the extent to which they were being carried, and apparently recognizing that there was no legal warrant or authority therefor, began gradually to get back to the original holdings of the court to the effect that this court has no authority or power to allow any claim presented for consideration, unless the same is based upon a legal or equitable right.

In the case of Mercer vs. State, 6 Ct. Cl. 20, this court, on page 21, said :

“But it is urged that the claim should be allowed as a matter of equity. There is nothing in the record of this case to call for equitable relief. The State, being sovereign, cannot be sued, either at law or in equity, without its consent. In order that there might be a forum in which claims and demands against the State could be adjudicated in accordance with the well known principles of law and equity the Legislature created the Court of Claims, and gave it jurisdiction to hear and decide all claims and demands against the State, both legal and equitable. It was not the intention of the Legislature in creating this Court to give it unlimited power or jurisdiction to make awards to claimants, and it has no power to make an award unless the evidence shows the claimant has a just demand based on either legal or equitable principles.”

In the case of Peterson vs. State, 6 Ct. Cl. 77, the claimants recognized that their claims were not founded upon a legal basis, and asked for an award on account of equity and good conscience. In that case the court cited with approval the aforementioned case of Schmidt vs. State, supra, also Jorgensen vs. State, supra, and Murdock Grate Co. vs. Commonwealth, infra, and further said:

“It is plain from the language of this statute (The Court of Claims Act) that no claim against the State can he allowed by this Court unless there is either a legal or equitable obligation of the State to pay it. Before a claimant can have an award against the State, he must show that he comes within the provisions of some law making the State liable to him for the amount claimed. If he cannot point out any law giving him the right to an award, he cannot invoke the principle of equity to secure the award. Where there is no legal liability, equity cannot create one. (10 R. C. L. sec. 132.) Equity is not the court’s sense of moral right; it is not the power of the court to decide a case according to the high standard of abstract right, regardless of the law. * * * To give this statute the construction contended for by claimant would result in giving this court the power to hold the State liable for the misfeasance and malfeasance of all its officers, the torts of all its servants and agents, and all damages caused by the wrongful exercise of their powers by such officers and agents. We do not believe the Legislature intended any such radical and far-reaching change in the law when it enacted the statute creating this Court.”

In the case of Perry vs. State, 6 Ct. Cl. 81, this court on page 84, said:

“Claimant urges, however, that he should be awarded compensation as an act of justice and equity regardless of the principles of law involved. The jurisdiction of this Court is fixed by law and it has no powers except those given by the Act creating it. Section Six (6) of that Act provides: ‘The Court of Claims shall have power to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State, as a sovereign commonwealth, should in equity and good conscience discharge and pay’. It is obvious from the language of this statute that no claim against the State can be allowed by this Court unless there is either a legal or equitable obligation of the State to pay it. If there is either a legal or equitable obligation resting upon the State to pay a claim, then justice requires that the State should pay it. * * *
“Claimant’s idea seems to he that equity is used in this statute as nothing more nor less than the power of the court to decide each case according to a high standard of morality and abstract right, regardless of the law. Such a construction would leave this Court with practically no limitation upon its power to render judgments against the State. * * * When the Legislature created this Court and clothed it with power to hear claims against the State we do not think it thereby intended to waive the right of the State to interpose any legal or equitable defense it might have to the demands of claimants. * * *
“Claimant’s demand, not being based upon any legal or equitable right, cannot be allowed, however strongly it may appeal to the sympathy of the Court. The Court can only enforce the law as it is, it has no power to change it. The claim will therefore be denied and the cause dismissed.”

The case of Watkins vs. State, 6 Ct. Cl. 172, was another case in which the doctrine of equity and good conscience was fully considered, and the early decisions of this court in Schmidt vs. State, 1 Ct. Cl. 76, and Jorgensen vs. State, 2 Ct. Cl. 134, were adhered to and the right to allow a claim solely on the grounds of equity and good conscience was denied. In that case the court said (p. 174):

“Before a claimant can have an award against the State he must show he comes within the provisions of some law making the State liable to him for the amount claimed. If he cannot point to any law giving him the right to an award, he cannot invoke the principle of equity to secure the award. Where there is no legal liability, equity cannot create one.”

Numerous other decisions of this court since the Watkins case have adhered to the principles there announced. The same conclusion has been reached by the courts in other jurisdictions.

In the case of Murdock Grate Co. vs. Commonwealth, (Mass.) 24 N. E. 854, the court, in passing upon a similar statute in that State, said:

“The Act we are discussing discloses no intention to create against the State a new and heretofore unrecognized class of liabilities, but only an intention to provide a judicial tribunal where well recognized existing liabilities can be adjudicated.”

In the case of City of Leadville vs. Leadville Power Co., (Colo.) 107 Pac. 801, the court, on page 813, used the following language:

“ ‘Equity and good conscience’ is an elastic phrase often applied in adjudicating the rights of parties, but it is not a doctrine or rule under which a party will be deprived of his property without due process.”

Certainly such rule should apply with equal force to the taxpayers of a State, from whom the revenue to pay all claims must come.

In the case of Slaughter vs. Martin, (Ala.) 63 So. 689, the term “equity and justice” was held to mean, according to the forms, rules and principles of law as established by the Legislature and declared by the courts.

In the case of Thornton vs. Lane, 11 Ga. 459, it was held that the word “equity” as used in the oath administered to a special jury, by which they were sworn to give a true verdict, according to the “equity” on the opinion they entertained of the evidence produced to the best of their knowledge, is a convertible term with “law” and means not that the verdict should be given according to some vague, undefinable opinion which the jury might entertain of equity, but according to a system of jurisprudence governed by established rules and bounded by a fixed precedent, from which the jury were not permitted to depart, however liable to objections these rules and precedents might be, in their judgment.

In the case of Steger vs. Traveling Men’s Business Association, 208 Ill. 236, the court, on page 244, used the following language:

“It must be remembered that while equity is based upon moral right and natural justice, it is not co-extensive with them. Equities are rights which are established and enforced in accordance with the principles of equity jurisprudence under some general principle or acknowledged rule governing courts of equity.”

Counsel for claimant in his brief makes reference to the Fergus case (Fergus vs. Russel, 277 Ill. 20), but there is nothing in the decision of the court in that case which authorizes this court to allow an award to the claimant in this case. We are cognizant of the fact that the aforementioned grant of authority by the Legislature to the Court of Claims does not deprive the Legislature itself of the power to pay claims against the State. As said by the Supreme Court in the Fergus case:

“The Court of Claims is a statutory body not provided for in the Constitution, and its action can have no effect upon the power of the Legislature to pay claims against the State.”

Regardless, however, of the power of the Legislature to pay claims on its own initiative, this court in passing on claims can exercise only such authority and power as have been delegated to it under the terms and provisions of the Court of Claims Act as hereinbefore set forth and construed.

We conclude, therefore, that Section four (4) of Paragraph six (6) of the Court of Claims Act, which provides as follows, to-wit: The Court of Claims shall have power: “to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ea? contracto and ea; delicto, which the State as a sovereign commonwealth, should, in equity and good conscience, discharge and pay”; merely defined the jurisdiction of the court, and does not create a new liability against the State, nor increase or enlarge any existinging liability; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable; that this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the court; that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.

The claimant having failed to bring himself within the provisions of the law entitling him to an award, there is nothing this court can do but deny the claim.

It is Therefore Ordered, That the motion of the Attorney General to dismiss the case be sustained, and the claim is hereby dismissed..


source: Caselaw Access Project

author: Mr. Justice Vausb

license: Public Domain

text:
    (No. 2068 —
    St. Margaret's Hospital of Spring Valley, Illinois, and Dr. Charles J. Green, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1933.

    Paul D. Perona, for claimants.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Vausb

delivered the opinion of the court:

This is a claim by St. Margaret’s Hospital of Spring Valley, Illinois, and Dr. Charles J. Green of Ladd, Illinois for allowance of a hospital bill of Sixty-five Dollars and Ninety Cents ($65.90) in behalf of the hospital above named and for medical services in the amount of Forty-nine Dollars ($49.00) in behalf of Dr. Green on account of hospital and medical treatment of one Percy L. Fink, an employee of the Division of Highways, Department of Public Works and Buildings, who was injured on June 8th, 1931, when burned in an explosion resulting from the ignition of gasoline which was being withdrawn by Fink from a State owned paving mixer.

Stipulation of facts has been entered into between the claimants through their attorney and the Attorney General’s office as the representative of the State of Illinois and from this stipulation it appears that P. L. or Percy Fink, State employee was injured on June 8th, 1931, and was on that date treated for these injuries by Dr. Charles J. Green, one of the claimants; that the injured man was taken to St. Margaret’s Hospital at Spring Valley, Illinois on the evening of the day of the injury and remained there until June 30, 1931; that on the day after the man was taken to the hospital, the Mother Superior requested information of C. M. Wahl, Superintendent of Construction of the State of Illinois, as to who would be responsible for the hospital services to be rendered to this man. On June 11, 1931, Mr. Wahl, in his capacity as Superintendent of Construction, on the letterhead of the State of Illinois, Department of Public Works and Buildings, notified the Mother Superior that the State of Illinois would assume all obligations in connection with the case; that on or about this same time Mr. Wahl also assured Dr. Green that the services of Dr. Green, rendered to Fink, would be paid by the State of Illinois; that on August 7, 1931, Mr. Wahl requested statements from the hospital and from Dr. Green and on August 10, the respective statements for services were sent to the Highway Department of the State of Illinois; that said statements were approved for payment on October 1st, 1931; that the regular appropriation for medical expense for the State Highway Department lapsed on September 30, 1931, into the General Fund; that the respective services both for hospital and medical services were rendered prior to July 1st, 1931; that the hospital services rendered by St. Margaret’s Hospital and unpaid are in the amount of Sixty-five Dollars and Ninety Cents ($65.90), and the medical services rendered by Dr. Charles J. Green and unpaid are in the amount of Forty-nine Dollars ($49.00); that said bills have been approved as to reasonableness of services and correctness by the State Highway Department; that the Chief Highway Engineer, in his report of May 3rd, 1933, recommends to the court that said bills be allowed and the Attorney General, in his statement, also recommends that said claims be allowed.

Under the undisputed circumstances shown by the stipulation filed in this case, the court is of the opinion that said claims should be allowed and accordingly the claimant, St. Margaret’s Hospital of Spring Valley, Illinois is awarded the sum of Sixty-five Dollars and Ninety Cents ($65.90) and Dr. Charles J. Green of Ladd, Illinois, is awarded the sum of Forty-nine Dollars ($49.00).


author: Mr. Justice Vause

text:
    (No. 2091 —
    Shell Petroleum Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1933.

    Thompson, Mitchell, Thompson & "Young, for claimant.
    Otto Keener, Attorney General; Gael Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Vause

delivered the opinion of the court:

This is a claim by Shell Petroleum Corporation against the State of Illinois for merchandise furnished to the State on the order of the Division of Highways, Department of Public Works and Buildings, over a period of three months, from April 1, 1931 to June 30, 1931.

The case has been submitted upon stipulation of facts between the State and the claimant and from this stipulation it appears that claimant furnished Two Hundred Ninety-seven Dollars and Three Cents ($297.03) worth of merchandise specified in claimant’s bill of particulars upon the dates and in the amounts and to the persons mentioned, that the prices therefor were the reasonable value of the items furnished at the time of the sale, that the persons so purchasing were authorized by the State of Illinois to purchase said items and to agree for the payment of the same at the respective prices named.

Claimant presented its claim for these items to the Division of Highways and payment was refused by reason of the expiration of the appropriation out of which payment for these items could be made. It is further stipulated that claimant has not received any payment on account of said claim.

Under these admitted circumstances claimant is entitled to an allowance of its claim, and an award is accordingly made in favor of the claimant for the sum of Two Hundred Ninety-seven Dollars and Three Cents ($297.03).


author: Mr. Chief Justice Hollebioh

text:
    (No. 2157 —
    John Mason, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1933.

    Frank R. Eagleton, for claimant.
    Otto Keener, Attorney General; Carl, Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollebioh

delivered the opinion of the court:

For more than one year prior to Septemer 16th, 1932, the claimant, John Mason, was employed as a State highway maintenance policeman by the Division of Highways, Department of Public Works and Buildings. On the last mentioned date, while in the course of his employment and in the performance of his duties, and while driving his automobile on S. B. I. Route No. 4, near Braidwood, Illinois, he sustained serious and permanent injuries as the result of a collision with another automobile which pulled out in front of him as he attempted to pass around it. The claimant was thrown about forty (40) feet from his car and sustained' fractures of his right wrist, right shoulder, left wrist, and thumb; also injuries to his right knee, and multiple rib fractures. He was confined to the hospital for eleven (11) weeks and is permanently disabled 'as the result of the injuries sustained.: All hospital and medical attention was furnished by the respondent.

It is admitted by the Attorney General that claimant, at the time of the accident in question was engaged in an extra-hazardous employment, within the meaning of such words as used in the Compensation Act, and he is therefore entitled to compensation in accordance with the terms and provisions of such Act. His salary was One Hundred Seventy-five Dollars ($175.00) per month, and he had no children under the age of sixteen (16) years at the time of the accident.

From the evidence and stipulation on file it appears that the period of temporary total disability was twenty-one (21) weeks, and that the claimant sustained the following specific injuries, to-wit: Seventy-five per cent (75%) loss of the use of the right arm; fifty per cent (50%) loss of the use of the left hand, and ten per cent (10%) loss of the use of the right leg.

Claimant received his regular salary from the time of the accident until January 31st, 1933, to-wit, the sum of Seven Hundred Eighty-seven Dollars and Fifty Cents ($787.50), which sum must be deducted in computing the amount of his award.

Claimant is therefore entitled to compensation at the rate of Fifteen Dollars ($15.00) per week for the period of 293.75 weeks, for temporary total disability, and for specific loss as hereinbefore set forth, in accordance with the provisions of Paragraphs B ¿nd E of Section eight (8) of the Compensation Act, less the salary paid him as hereinbefore set forth; such amount to be commuted to an equivalent lump sum in accordance with the provisions of Section Nine (9) of the Compensation Act. As we compute it, the net amount due the claimant after commutation to a. lump sum as aforesaid, is Thirty-three Hundred Eighty Dollars, and Sixty-two Cents ($3,380.82).

It is Therefore Ordered, That the claimant be allowed the sum of Thirty-three Hundred Eighty Dollars and Sixty-two Cents .($3,380.62).


text:
    (No. 1715 —
    Sprague Dairy Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1933.

    Donovan, Bray & Gray, for claimant.
    Otto Keener, Attorney General; Gael Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Vause

delivered the opinion of the court:

This is a claim for damages to and for loss of use of a Chevrolet truck owned by the claimant, resulting from a collision with a passenger automobile, the property of the State of Illinois;

The collision occurred about 6:30 a. m. on December 24, 1930, on Sixteenth Street in Lockport, Illinois,' about one hundred (100) feet east of a viaduct over the Santa Fe Railroad tracks and west of a viaduct over the I. & M. Canal. This road is surfaced with gravel at this place. The evidence discloses that coming west on this street after crossing the canal the grade is descending for about 200 feet and the road at the bottom of the incline is somewhat narrow. From this point westwardly to the Santa Fe viaduct, some three hundred feet distant, the road ascends on about a seven per cent (7%) grade. There is a curve in the road on both sides of the viaduct. Claimant’s truck was proceeding uphill in a westerly direction on this street, at not over ten miles per hour. At the time the collision occurred and afterward, the truck was about one hundred feet east of the Santa Fe viaduct, was headed west and was entirely on the north or right hand side of the roadway for west bound traffic.

The passenger car which came into collision with the truck at this point was a Chrysler Sedan, owned by the State of Illinois, being driven in an easterly direction on this same street by Nick Myers, an inmate of the “Old Penitentiary.” Myers was assigned to duty as a chauffeur and had driven from the “Old Penitentiary” on the east side of the Des Plaines River over to the State Farm southeast of Stateville Penitentiary on the west side of the Des Plaines River to get Deputy Warden G-eorge Erickson for the purpose of conveying him back to the “Old Penitentiary” where the duties of the deputy warden were performed. The deputy did not, however, go back with Myers, but instructed him to return the car to the “Old Penitentiary” and further ordered him to take Erickson’s daughter as a passenger and let her off at the depot at Lockport, which was directly on the route back to his ordered destination. A part of Myers’ duty was to call for the deputy warden each morning and he traveled this same road most of the time because this route was shorter. The collision resulting in this claim occurred before the sedan had reached the depot where Miss Erickson was to be let out.

After the accident, the State car was on its left hand side of the road. The further testimony is that as one leaves the Santa Fe viaduct going* east, the north side of the road is the most traveled, there being rough spots in the south side of the road at that point. There was some snow upon the roadway and the undisputed testimony is that the State car ran more than thirty-three feet after the brakes had been applied before the collision occurred.

One disinterested witness testified to a portion of the occurrences shortly before the accident. This witness was proceeding in the same direction as the State car. The State car passed the witness shortly before reaching the Santa Fe viaduct traveling, in the opinion of the witness, between fifty and sixty miles an hour. The president of the claimant visited the scene of the accident before the cars had been moved. He testified he was able to trace the tracks of the State car from the point where it had left the Santa Fe viaduct to the point of the collision and these tracks were north of the center of the road and at no point from the leaving of the viaduct to the point of the collision were there any tracks of the State car on the south side of the road; that for a distance of about thirty-three feet the tracks showed dark oily markings on the snow.

Under the evidence in this case it seems clear that the convict-driver of the State car, at the time the accident occurred was performing labor of a character which was authorized by statute (Par. 44, Chapter 108, Smith-Hurd Stat., 1931) and which had been assigned to him by his custodian.

The general rule is well established that the doctrine of respondiat superior does not apply to the State in the exercise of its governmental functions.

This court has, however, recognized exceptions to the general rule of non-liability above referred to, where the injuries complained of are directly attributable to grossly reckless, wanton or wilful acts on the part of a servant of the State and the claimant is free from all contributory negligence in connection with the injury. The driver of the State car in the present case was not a servant of the State in the ordinarily accepted meaning of that term, but he was being used as an instrumentality of the State and he had the power of voluntary action. We are of the opinion that the peculiar facts of this case bring it within this exception.

The driver of the State car was proceeding down a seven per cent (7%) grade on a road with which he was thoroughly familiar, at 6:30 o’clock, on a hazy morning in December, at a speed of not less than forty miles per hour at a place in the road where his view before he came over the viaduct was obscured (contrary to the provisions of Par. 223, Chapter 121, Smith-Hurd Stat., 1931) and when he did come over the viaduct the undisputed testimony is that he traveled upon his left hand side of the road for over one hundred feet (contrary to the provisions of Par. 159, Chap. 121, Smith-Hurd Stat., 1931) and collided with the claimant’s truck which had almost stopped on its right hand side of the road.

The undisputed evidence is that the amount of Two Hundred Seventy-four Dollars and Seventy-nine Cents ($274.79) was reasonably necessary to repair claimant’s truck as a result of the collision. We believe a fair damage for loss of use of the truck, under the record, would be One Hundred Dollars ($100.00).

We therefore award the claimant the sum of Three Hundred Seventy-four Dollars and Seventy-nine Cents ($374.79).


author: Mr. Chief Justice Hollbrioh

text:
    (No. 1734 —
    Samuel Bridges, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1933.

    Benjamin Gf. Pollard, for claimant.
    Otto Keener, Attorney General; Gael Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollbrioh

delivered the opinion of the court:

The claimant, Samuel Bridges, seeks to recover damages on account of the death of his son, Charles Bridges, who, in his lifetime, was a private in Company H, Eighth Infantry Regiment of the Illinois National Guard. It is claimed that said Charles sustained injuries in the line of his duty, which said injuries thereafter caused his death.

From the record it appears that Private Charles Bridges attended the summer encampment with his Company at Camp Grant during the summer of 1927. On the last day of the encampment, to-wit, August 13, 1927, he, with other members of the baggage detail of the Company, was engaged in conveying the baggage on trucks to the baggage car at the railroad station. While riding on top of a truck loaded with such baggage, he was swept off by a low-hanging electric wire and and thrown to the pavement, sustaining a fracture of both forearms, a cut over the left eye with concussion about the head, probably causing a facture of the skull.

The respondent immediately furnished the necessary medical and hospital attention. Bridges was first taken to St. Anthony’s Hospital at Rockford, where he remained for two days. He was then transferred to the Chicago Hospital in Chicago on August 15, 1927, where he remained under treatment until September 11, 1927. On the last mentioned date he left the hospital of his own accord and without authority, and was considered by the military authorities as absent without leave. He returned to his home in Chicago and remained there most of the time until October 1, 1927. While at home he was continually troubled with headaches and with a discharge through the nostrils, and seemed to be unbalanced mentally. On or about September 20, 1927, he was arrested by one of his superior officers for non-attendance at drill and was placed in jail, and remained there for three days. He was released on Friday evening, September 30, and the' next morning was raving. He was sent to Cook County Hospital and died two days later, to-wit, September 30, 1927, of epidemic cerebro spinal meningitis.

Two Military Boards of Inquiry investigated the matter. The first Board of Inquiry was convened on August 24, 1927, and found that the accident in which Private Bridges received the aforementioned injuries occurred in the line of his duty. The second Board of Inquiry was convened on October 3, 1933, and found that the death of Private Bridges was caused from spinal meningitis secondary to the head injury sustained at Camp Grant, Illinois, on August 13, 1927.-The last mentioned Board also found that the family of the deceased was destitute and unable to defray the burial expenses, and recommended that the State show just consideration.

It appears from the evidence that said decedent left him surviving the claimant, Samuel Bridges, his father,' and Nettie Bridges, his mother, dependent upon him for support.

Section eleven (11), Article sixteen (16), of the Military and Naval Code provides as follows:

“In every case where an officer or enlisted man of the National Guard or Naval Reserve shall be injured, wounded or killed while performing his duty as an officer or enlisted man in pursuance of orders from the Commander-in-Chief, said officer or enlisted man, or his heirs or dependents, shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may " demand.”

Upon the record in this case it appears that the sum of Thirty-seven Hundred Fifty Dollars ($3,750.00) is a fair amount to be paid to the dependents of said soldier.

It is Therefore Ordered, That an award be entered in favor of the claimant for the sum of Thirty-seven Hundred Fifty Dollars ($3,750.00).


author: Mr. Justice Thomas

text:
    (Nos. 1767-1768-1769-1770, Consolidated —

      Opinion filed March 6, 1933.

      Rehearing granted May 2, 1933.

      Opinion on rehearing filed June 1, 1933.

    Martha Connole, Administratrix of the Estate of Hugh Hankins, Deceased, No. 1767, Onie Hankins, No. 1768, Carl Hankins, No. 1769, Pearl Cuff, No. 1770, Claimants, vs. State of Illinois, Respondent.
    G. C. Borders and T. A. Gasaway, for claimants.
    Otto Kerner, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

These claims are all based on the same facts, and have been consolidated for hearing. On December 26, 1930, Sam Sonnenberg, an employee of the Division of Highways, was driving a State truck on Route 11 near Collinsville. As he was going up a hill just out of Collinsville the truck stalled. It was about 9:15 o ’clock p. m., cloudy and misty but not yet dark. There was no starter on the truck and he got out to crank it. While he was cranking it Carl Hankins, one of the claimants, ran into it from the rear. Hankins was driving a Ford Tudor Sedan. In the automobile with him were his wife, Onie Hankins, their 14 months old baby, Hugh Hankins, Mrs. Pearl Cuff and two of his other children. Mrs. Hankins was sitting in the front seat holding the baby on her lap and Mrs. Cuff and the other two children were in the rear seat. The truck was near the curb on the right hand side of the pavement and had no lights on it. The lights on the Hankins car were burning. As a result of the collision the baby was killed, Mr. and Mrs. Hankins and Mrs. Cuff were injured and the automobile was wrecked. Mr. Hankins is asking $3,000.00 damages, Mrs. Hankins $10,000.00, Mrs. Cuff $5,000.00 and the administrix of Hugh Hankins $5,000.00.

Claimants base their claim to awards on the theory that the State is liable for damages caused by the negligence of its employees and agents. In this claimants are in error. While individuals and private corporations are liable for damages caused by the negligence of their employees and agents the rule does not apply to the State nor to sub-divisions of the State created for governmental purposes. The State is never responsible for the negligence, misfeasance, malfeasance, or omissions of duty of its officers, agents or employees. It does not undertake to guarantee to any one that its employees will be faithful, competent or careful in the performance of their duties, as that would involve it in endless difficulties and losses which would be subversive to the public interests. (Gibbons vs. U. S. 8 Wallace, 269; Minear vs. State Board of Agriculture, 259 Ill. 549; Davenport Fish Co. vs. State, 5 Ct. Cl. 209; Story on Agency, sec. 319.) After quoting Judge Story on the foregoing rule in Gibbons vs. U. S., supra, Mr. Justice Miller said: “The general principle which we have already stated as applicable to all governments, forbids, on a policy imposed by necessity, that they should hold themselves liable for unauthorized wrongs inflicted by their officers on the citizen, though occurring while engaged in the discharge of official duties.” In Minear vs. State Board of Agriculture, supra, our own Supreme Court said: “If, as we hold, the State Board of Agriculture is an agency of the State in the exercise of governmental functions, it is not liable, under the common law, for injuries claimed to have been sustained as a result of its negligence. This is not disputed by appellee, and is so thoroughly settled by all the authorities that we deem it necessary to cite only Hellenbeck vs. County of Winnebago, 95 Ill. 148, and Maia vs. Eastern Hospital, 97 Va. 507; 47 L. R. A. 577. The opinions in these two cases contain a list of many authorities on the subject.” It is clear that claimants have no legal right to an award against the State for the injuries they sustained.

It does not follow, however, that claimants are without a remedy. If as they allege, their injuries were caused by the negligence of Sonnenberg while they were in the exercise of due care (and upon those questions we express no opinion) they can bring proper actions against him in a court of general jurisdiction and have their damages ■ determined. (Grootens vs. State, 6 Ct. Cl. 399; Braun vs. State, 6 Ct. Cl. 104; Cooney vs. Town of Hartford, 95 Ill. 516.)

The claims are denied and the cases dismissed.

On rehearing granted, Mr. Justice Linscott delivered the opinion of the court: -

These claims arising in the same automobile accident have by respective counsel of the parties hereto been consolidated.

Martha Connole, as such administratrix of the estate of Hugh Hankins, a deceased infant, filed a claim asking for damages from the State of Illinois in the sum of Five Thousand Dollars ($5,000.00) on account of the death of claimant’s intestate.

Onie Hankins filed a claim asking for damages in the sum of Ten Thousand Dollars ($10,000.00).

Carl Hankins, claimant, filed a claim asking for the sum of Three Thousand Dollars ($3,000.00) for personal injuries and property damage, and Pearl Cuff filed her claim for the sum of Five Thousand Dollars ($5,000.00) for alleged personal injuries.

The facts were: a three-ton Liberty truck belonging to the State of Illinois and under the direction of the Division of Highways had been stalled on Bluff Hill, S. B. I. Boute 11, near the western edge of the city limits of Collinsville, Illinois, sometime between 5:15 and 5:45 on the evening of December 26, 1930. At the time this truck became stalled, it was going around a slight curve about half way up the hill. Motor trouble was the cause of the truck stopping. That afternoon and day this truck had been used in maintenance road work and was customarily stored overnight in a garage at the top of the hill. At the time of the accident, the truck was not equipped with lights or a storage battery. The driver of the truck, Sam Sonnenberg, was immediately before the crash, trying to crank it when a Model-A 1930 Ford Sedan driven by one of the claimants, Carl Hankins, crashed into the rear of the stalled truck;

Biding in the front seat with him was his wife, Onie Han-kins, who was holding their fourteen months old infant son, Hugh, in her arms. The claimant, Pearl Cuff, was riding in the back seat with two children.

The overwhelming evidence is that it was quite dark and foggy and most of the automobile traffic was using lights. The lights of the car in which all of the claimants were riding were burning, and so far as the evidence shows, were in good condition.

It appears from the evidence that the driver, Carl Han-kins, did not see the truck until he was within four or five feet of it, just before the crash. Official sunset on this day occurred at -4:45 p. m., as shown by the records of the United States Weather Bureau of East St. Louis, Illinois.

The infant, Hugh Hankins, was killed almost instantly, and Mr. and Mrs. Hánlrins, as well as Pearl Cuff, suffered minor personal injuries as the result of the collision. The Ford was badly damaged and subsequently sold to an automobile dealer for $75.00, who repaired the car at a cost of $210.00.

The injured were attended and treated by Dr. H. W. Harrison of Collinsville, Illinois. Pearl Cuff and Onie Hankins remained at the Harrison Hospital for about one week’s time and the treatment óf the injuries extended over a period of approximately three weeks. In the opinion of the doctor no permanent disability has resulted from these injuries. The cost of medical treatment was as follows:

Pearl Cuff, hospital and medical attention...................$66.00
Onie Hankins, hospital and medical attention................ 71.00
Carl Hankins, medical attention.............................• 22.00

Declarations were filed herein on May 5, 1931. It was admitted that no warning lights were placed by the driver of the truck and no effort was made to warn approaching drivers of the situation of the truck. A number of witnesses were heard on both sides.

It is a well established rule that the doctrine of respondeat superior does not apply to a State in the exercise of purely governmental functions. This rule is perhaps best stated as follows:

“The government itself is not responsible for the misfeasance, or wrongs, or negligences, or omissions of duty of the subordinate officers or agents employed in the public service; for it does not undertake to guarantee to any persons the fidelity of any of the officers or agents whom it employs; since that would involve it, in all its operations in endless embarrassments and difficulties, and losses, which would be subversive to the public interests; and, indeed, laches are never imputable to the government. Seymour vs. Van Slyck, 8 Wend. 403; United States vs. Kirkpatrick, 9 Wheat. 720, 723.”

We are, however, of the opinion that the facts in these cases amount to he a wilful and wanton negligence and an exception should be made to the rule as above announced. We fix the damages to the automobile at $210.00; the cost of medical care and attention to Carl Hankins as $22.00 and make an award to him in the aggregate sum of $232.00; and award to Onie Hankins for her hospital and medical attention the sum of $71.00 and to Pearl Cuff, for hospital and medical attention the sum of $66.00 an award to Martha Connols, Administratrix of the estate of Hugh Hankins, deceased, the sum of $1,000.00.


text:
    (No. 1777 —
    John T. Garvins, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1933.

    Charles Gf. Seidel, for claimant.
    Otto Keener, Attorney General; Gael Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Vause

delivered the opinion of the court:

Claimant seeks to recover compensation under the terms of the Act commonly known as the Workmen’s Compensation Act for an injury claimed to have been suffered by him February 19, 1931, while employed as an attendant at the Elgin State Hospital. The nature of the injury alleged is a left side inguinal hernia, claimed to have been received by the claimant while he, assisted by three inmates of the institution, was Carrying a hand stretcher containing a dead body into the morgue of the institution where he was employed, and that the injury arose out of and in the course of his employment. The accident occurred by one or more of the inmates holding on to the other end of the stretcher from the claimant, moving-in such a way that the end of the pole of the stretcher struck claimant in the left side.

The statute granting this court jurisdiction to hear and determine claims- for compensation to State employees is contained in sub-paragraph 6, Section 6 of the Act creating this court, Smith Hurd’s Statutes, 1931, Chapter 37, Paragraph 432, and is as follows:

“(6) To hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any employee of the State, such determination to be made in accordance with the rules prescribed in the Act commonly called the ‘Workmen’s Compensation Act,’ the Industrial Commission being hereby relieved of any duty in connection thereto.’’

Bv Paragraph 3 of the Workmen’s Compensation Act, Smith Hurd’s Statutes, 1931, Chapter 48, Paragraph 139, it is provided that the provisions of the Workmen’s Compensation Act shall apply automatically to the State as an employer “and to all employers and all their employees engaged in any department of the following enterprises or businesses which are declared to be extra-hazardous, namely: ’-’ and thereafter the statute sets out ten sub-paragraphs declaring the extra-hazardous businesses or enterprises.

The Workmen’s Compensation Act does not automatically apply to all employees of the State, but is available to such employees only when they are engaged as such employees in an employment in a department of the State which is engaged in the named extra-hazardous enterprises. Village of Chapin vs. Industrial Commission, 336 Ill. 461.

In determining what enterprises of the State are extra-hazardous, this court is bound by the enactment of the Legislature of the State as set forth in the sub-paragraphs of Section 3 of the Workmen’s Compensation Act above referred to, and if the employment of the claimant was not such at the time of the alleged injury as brought him within the terms of the Workmen’s Compensation Act, this court has no authority to award compensation.

We have carefully considered the evidence in this case and we find nothing therein which brings the employment of the claimant at the time of the alleged injury within any of the extra-hazardous enterprises declared by Section 3 of the Workmen’s Compensation Act.

The claimant in his employment not being within the terms of the Workmen’s Compensation Act, this court is without any authority to make an award in liis favor. Therefore, the claim is denied and the suit dismissed.


author: Mr. Justice Linscott

text:
    (No. 1804 —
    Janie Hartley, Administratrix of the Estate of J. O. Hartley, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1933.

    John H. Searing, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for the State.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant filed her petition as administratrix of the estate of J. 0. Hartley, deceased, to recover compensation under the Workmen’s Compensation Act of 1911, subsequently amended, for damages suffered by reason of the death of her husband while in the employ of the respondent as a bridge painter on S. B. I. Route 2, Division of Highways, Department of Public Works and Buildings.

The undisputed facts are that the deceased, J. 0. Hartley, died on June 15, 1931, from the effects of personal injuries incurred when he accidentally fell from a bridge scaffolding to the ground below, a distance of thirty-five or forty feet. As a result of the fall, his body was pierced or impaled by a tent stake sticking up from the ground about eighteen inches and he died before he could be removed to a hospital.

The deceased had only been employed by the respondent a short time prior to the accident. His rate of wage at the time was $21.60 per wmek. He had been employed at various occupations as a steeplejack, millwright, railroad machinist, salesman and painter. Just what his exact average annual earnings were is somewhat in doubt, but it fully appears that they were at least $1,000 a year.

Besides his widow, the deceased left him surviving, two dependent minor children, Velma, a daughter, age fifteen years, and Bussell, a son, age eight years, at the time of the death of their father.

Under the provisions of Section 7(a) of the Workmen’s Compensation Act, then in force, the widow would, therefore be entitled to a maximum award of $3,750.00, which on account of the two dependent minor children is increased, by subsequent sections to the sum of $4,550.00.

It appears from the evidence that at the time of his injury and death, the deceased was in the employ of the State in one of the extra-hazardous occupations enumerated in the Compensation Act, and comes within Section 3 of the Act as extra-hazardous.

The Attorney General does not. dispute the facts, but recommends that claimant be awarded not to exceed $4,550.00.

We find that the recommendations of the Attorney Glen eral are in accordance with the statute and the facts in this case and make an award in the sum of $4,550.00, which must be commuted under the statute.

We anticipate that an appropriation for an award will be payable about August 1st.

The deceased’s injury and death occurred June 15, 1931. There would therefore be 110 3/7 weeks of earned compensation. The total compensation would ordinarily run 416 weeks. Under the Compensation Act, his beneficiary would receive $10.94 per week. There would be 305 4/7 weeks to be commuted. The sum that the administratrix therefore will receive is $4,275.94, and we recommend that an appropriation be made in that sum, payable to Janie Hartley, as the administratrix of the estate of J. O. Hartley, deceased. Inasmuch as there are two children under sixteen years of age, we deem it advisable that it be paid in that wav.


author: Mr. Chief Justice Hollerich

text:
    (No. 1879- —
    John Robinson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1933.

    John Robinson, pro se.
    Oscar E. Carlstrom, Attorney General; Carl Dietz Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

The claimant, John Robinson, seeks to recover compensation for extra work done by him in connection with the construction of the Cairo Armory at Cairo, Illinois, during the spring of 1931.

On February 20th, 1931, the respondent advertised for bids for the construction of an Armory in the City of Cairo, and thereafter the contract for the construction of such Armory was awarded to the claimant, John Robinson, who furnished the bond required by law and immediately commenced work under his contract.

After he began work it was ascertained that on account of peculiar sub-soil conditions in Cairo, it was necessary to revise the plans and specifications upon which the original contract was based. Such revision was made on March 25th, 1931, and on April 7th, 1931 the extra work required by such change in specifications was authorized by the Division of Architecture and Engineering of the Department of Purchases and Construction.

The unit items called for in the original contract were paid in due course as the work progressed, and no part of the original costs are involved in this claim. The extra work was done in accordance with the revised plans and specifications and was satisfactory to the department having charge of the work. The claimant was notified that the appropriation out of which payment for such extra work would be paid would lapse on June 30th, 1931, but notwithstanding that fact, he failed to file his bill within the required time and the appropriation therefore lapsed before payment was made.

It is conceded, however, that the bills were presented within a reasonable time. Under date of February 29th, 1932, the Department of Purchases and Construction reported that the claimant’s claim to the extent of Eighteen Hundred Seventy-four Dollars and Fifty-three Cents ($1,874.53) had the approval of such department. Thereafter a stipulation was entered into and filed herein on the 22nd day of March, A. D. 1933, wherein and whereby it was stipulated and agreed by and between the claimant and the Attorney General upon the recommendation of the Division of Architecture and Engineering of the Department of Purchases and Construction, that the actual loss and reasonable damage sustained by the claimant on account of the aforementioned revision of plans, was Seventeen Hundred Sixty Dollars and Twelve Cents ($1,760.12) and an itemized and detailed statement of which said loss and damage was made a part of such stipulation.

There is no question but what the claimant performed the work in question, and it is admitted that the same was completed to the satisfaction of the Division of Architecture and Engineering of the Department of Purchases and Construction, and the Attorney General has recommended the allowance of the claim to the extent of Seventeen Hundred Sixty Dollars and Twelve Cents ($1,760.12).

It is Therefore Ordered, That an award be entered in favor of the claimant in the amount of Seventeen Hundred Sixty Dollars and Twelve Cents ($1,760.12).


text:
    (No. 1896 —
    Mattie L. Bucholz, Administratrix of the Estate of Henry G. Bucholz, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1933.

    Walter J. Miller and Walter J. Wenger, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for the State.
   Mr. Justice Vause

delivered' the opinion of the court:

This is a claim filed by Mattie L. Buchholz, Administratrix of the estate of her deceased husband, Henry Gr. Buchholz, seeking to recover Twenty Thousand Dollars ($20,000.00) damages on account of the death of her husband on October 19, 1931, resulting from personal injuries received October 1.4, 1931, when a Lincoln automobile deceased was driving left the pavement and collided with a concrete culvert at the side of the road. The accident occurred on the evening of October 14, 1931 about 6:20 p. m., while deceased alone was driving a Lincoln Sedan southeast on State Bond Issue Route No. 60j known as Rand Road, in DuPage County, Illinois, and about 185 feet southeast of the intersection of this road as what is known as the Arlington Heights Road.

According to the testimony Arlington Heights Road runs about north and south and Rand Road intersects it from a northwesterly to a southeasterly direction to one approaching toward the city of Chicago. Deceased was driving southeast on Rand Road approaching the intersection with Arlington Heights Road and while the evidence is not clear it can be reasonably inferred therefrom that a car approaching this same intersection from deceased’s right travelling north along Arlington Heights Road turned to the left in this intersection ahead of and across the line of deceased’s approach for the purpose of turning to the northwest along Rand Road. Following this deceased crossed the intersection, proceeded along Rand Road but ran off of the pavement on the left hand side and into a ditch and crashed against a headwall of the concrete culvert located on the left hand side of Rand Road and at a point about 185 feet southeast of the intersection.

As a result of his injuries received, deceased developed traumatic pneumonia and died. Both the Rand Road and the Arlington Heights Road were owned and controlled by the State of Illinois. Claimant’s declaration counts upon a negligent failure on the part of the State of Illinois to erect traffic signs or signals indicating a curve in Rand Road at or near this intersection, by reason of which negligence, claimant’s intestate was injured and from which injury he died. Considerable testimony appears in the record to show the condition and manner of construction of the road in question at this intersection and to show that there was a curve in the road known as Rand Road which was not indicated by warning signals.

In the opinion of the court, however, it is not necessary to discuss at length the circumstances surrounding the death of claimant’s intestate as shown by the record. As previously stated, the record discloses that the Rand Road, of which complaint is made as to the method of construction and maintenance was built by and is owned and controlled by the State of Illinois. In the construction and maintenance of its roads, the State acts in the governmental capacity and in the exercise of such governmental functions it does not become liable in actions of tort by reason of the malfeasance, misfeasance or negligence of its officers or agents in the absence of a statute creating such liability. Such has been the settled decision of this court for many years. Morrissey vs. State of Illinois, 2 Court of Claims Reports, 454; Minear vs. State Board of Agriculture, 259 Ill. 549.

The General Assembly has never enacted a law. making the State liable for damages caused by the negligent construction or maintenance of a public road and this court has no power to make an award for such damages in the absence of such a statute. Chumbler vs. State of Illinois, 6 Court of Claims Reports, 138.

The claim is denied and the cause dismissed.


text:
    (No. 1899 —
    Harry W. Alexander, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1933.

    Lawler & Greening, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for the State.
   Mr. Justice Vause

delivered the opinion of the court:

This is a claim filed by Harry N. Alexander against the State of Illinois seeking to recover compensation for temporary total disability and costs of medical attention under the Workmen’s Compensation Act for accidental injuries received by him as such an employee arising out of and in the course of his employment as a laborer in the State House power plant in Springfield, Illinois.

It appears from the stipulation of fact entered into between the attorney for the petitioner and the Attorney General representing the State.of Illinois that the claimant was, on the 29th day of January, 1932, an employee of the State of Illinois engaged in an extra-hazardous employment and on that date he suffered accidental injuries arising out of and in the course of his employment; that notice of the accident was given to the respondent and claim for compensation on account thereof within the time required under the provisions of the Act; that the earnings of the petitioner at the time of the injury were at the rate of Twelve Hundred Fifty-eight Dollars and Forty Cents per year, and that the average weekly wage was Twenty-four Dollars and Twenty Cents ($24.20) per week. Petitioner, at the time of the injury was forty-eight (48) years of age and had two minor children aged ten and fifteen years respectively, dependent on him for support at the time of the injury. Necessary first aid, medical services and hospital services have not been provided by the respondent and the amount thereof is the sum of Forty-five Dollars ($45.00); that claimant is entitled to receive from the respondent said sum of Forty-five Dollars ($45.00) for medical and surgical services; that claimant suffered no permanent disability and is entitled to receive from the respondent total temporary disability compensation for a period of ten (10) weeks at the rate of Thirteen Dollars and Thirty-one Cents ($13.31) per week as provided by Section 8-J (1), or a total of One Hundred Thirty-three Dollars and Ten Cents ($133.10); that claimant has been paid by respondent the sum of One Hundred Four Dollars and Eighty-six Cents ($104.86) of this amount, leaving a balance of Twenty-eight Dollars and Twenty-four Cents ($28.24) compensation still due and unpaid.

Petitioner is entitled to receive the sum of Twenty-eight Dollars and Twenty-four Cents ($28.24) as compensation plus medical and surgical services amounting to Forty-five Dollars ($45.) or a total of Seventy-three Dollars and Twenty-four Cents ($73.24).

Petitioner is therefore allowed an award in the sum of Seventy-three Dollars and Twenty-four Cents ($73.24).


author: Mr. Justice Linsoott

text:
    (No. 1953 —
    Thornton Cartage Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1933.

    Cameron & Health, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linsoott

delivered the opinion of the court:

Claimant is seeking damages to the extent of $6,393.35 from the State as damages, because the Department of Public Works and Buildings failed to furnish a portion of the necessary right-of-way required for the construction project with resulting changes in the plans and specifications of a certain contract. The original contract was No. 4257, and was executed on October 4,-1930, and provided for certain grading operations and hard road construction on S. B: I. Route 19, Section 70, A-2, in Ooolc County. The contract contemplated construction of a newly located portion of said S. B. I. Route 19 at its intersection with the county highway known as Dundee Road. In addition, an underpass was to be constructed where it crosses Dundee Road, and a ramp or connecting highway wa's to be constructed leading from Route 19, west of the intersection, connecting it with the Dundee Road. The ramp was to be constructed north of Route 19 and running in a parallel direction.

There was a stipulation of facts.

It appears that the first delay of sixteen (16) days occurred between October 9th and 28th, 1930, two days after the work was' started and during this time a portion of claimant’s equipment remained idle. This temporary suspension was ordered by the Division of Highways when it was discovered that right-of-way for the north ramp had not been secured from the Forest Preserve District of Cook County. Question had arisen in regard to its precise location.

Originally the plans had called for work to be commenced in grading operations on the north ramp and this change in plans and specifications was the cause of the first delay period. Claimant then began work on the new location of the right-of-way on Route 19, all of which had been secured. He was engaged in this work until February 12, 1931, when claimant was directed to build it at a new location. There was sixty-three (63) days in this second period of delay from February 12 to April 27, 1931. The items of claim for the two periods of delay involved idle equipment resulting therefrom.

The original contract price was $71,533.10 for this work. It was .essentially a grading contract with a small amount of concrete pavement. In the letter of award it was specifically stated that certain right-of-way, namely from Station 43/50 to Station 45/10, from Station 49/00 to Station 59/00, and from Station 139/00 to Station 145/00 had not been acquired and that the contractor should not start work within these limits until further notified. The contractor at that time was also advised that he should start work on the remainder of the section immediately, which included the proposed north ramp, between Station 1/00 to Station 11/30.

The amount claimed as damages was on account of delays encountered which were not referred to in the paragraph above stated, and which supposedly were clear at the time of the award.

The contractor claims damages to the extent of $2,410.40 for delays to his grading equipment for the period from October 10th to October 28tli, when he was unable to operate on account of right-of-way difficulties. It appears that the contractor moved in good faith and that just before starting construction operations, he was notified by the engineer that on account of right-of-way difficulties no work should be done within certain limits. It was not possible to work at other points during that time and he was obliged to lay up his outfit for sixteen (16) days.

It also claims $3,982.95, which is likewise due to the right-of-way difficulties, and it appears from the record that the contractor performed all the work possible where the right-of-way was clear, and he was obliged to lay up his outfit for the period from February 12 to April 27, when he was notified that certain portions of the right-of-way were clear.

The questions here presented are:

1. Whether or not a contractor is justified in presenting a claim for delays which arise due to right-of-way, bearing in mind that at the time of the award the right-of-way was supposedly clear and that in so far as the contractor knew, he was privileged to move in equipment and start work. There is no controversy about the facts under this breach.

2. The second question is whether the prices charged for equipment were fair and reasonable for equipment of this character. • The prices of the Associated General Contractors of America are recognized as the general standard.

A report from Frank T. Sheets, Chief Highway Engineer, on September 30, 1932, addressed to the Attorney General, contained the above facts.

A further report was received on March 21, 1933, from Ernst Lieberman, Chief Highway Engineer. This contained copies of 6‘Stipulation of Reasonable Damage.” In connection herewith, the items and facts were all carefully checked and it appears that while most of the contract price had been paid, claimant for its work under the contract, that final payment estimate covering* a small sum had not at that time been paid. We have examined blue prints, the abstract of evidence and photostatic copies of the contract, etc., and it appears that the facts herein contained, are substantially correct.

The stipulation of reasonable damages resulted from a close check of all items of the claim by the Division of Highways and resulted from mutual agreement with the department. These amounts are all based on A. G. C. ratings for idle equipment, which seems to be universally recognized as fair and reasonable by contractors and engineers, and this sum was fixed at $3,990.57.

The State is liable for the actual damages arising from unreasonable delay caused solely by the State and not through fault of the contractor, nor attributable to his failure in protecting himself from the effects of delays which might reasonably have been foreseen.

Powers-Thompson Const. vs. State, 5 C. C. R. 180.
Hoier V. State, 6 C. C. R. 130.
Henkel Constr. Co. vs. State, 6 C. C. R. 222.
Carson vs. State, 6 C. C. R. 520.

Where a contract states no time for completion, and the governments improper suspension of the work results in delays, so that the contract could not complete within a reasonable time, such action in effect amounts to a breach of the agreement and the government is liable for the actual damages sustained by the contractor.

Smith vs. U. S., 11 C. Cls. 707; Aff’d., 94 U. S. 214.
Rodgers, et al. vs. U. S., 48 C. Cls. 443.
Swift vs. U. S., 14 C. Cls. 208.
High vs. U. S., 8 C. Cls. 319.

The Attorney General has recommended that the claimant be awarded the sum of $3,990.57, in full settlement of all damage. In view of the foregoing authorities and the facts as they appear before us, and the stipulations contained in the record, we award the claimant the kum of $3,990.57 in full settlement of all damages.


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    (No. 1978 —
    Lura Sutton, Administratrix of the Estate of Grady Sutton, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1933.

    Miley & Combs, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Vause

delivered the opinion of the court:

This is a claim by Lura Sutton, Administratrix of the Estate of Grady Sutton, for compensation on account of the accidental death of Grady Sutton on July 1, 1932. The evidence discloses that Grady Sutton was on that date in the employ of the State of Illinois as a State highway patrolman in the Department of Public Works and Buildings of the State of Illinois, pursuant to Paragraph 249, Chapter 121, Smith Hurd’s Revised Statutes, 1931. The evidence discloses that the deceased on the above date, while in the line of his duty as such State highway patrolman, while assisting officers of Saline County, Illinois, in arresting three men under suspicion as being automobile thieves, was shot and killed by one of the alleged thieves while in the custody of the deceased and the Chief of Police of the City of Harrisburg, Illinois and while the said alleged thieves were being taken under arrest to jail in Harrisburg. The evidence further discloses that the deceased left surviving him his widow, Lura Sutton, and two children under the age of sixteen years who were totally dependent upon him for support; that all medical and hospital bills have been paid by the State.

Th authority given to this court to hear and determine claims for compensation for the accidental injury or death of State employees is fixed by Sub-paragraph 6 of Section 6 of the Act of the Legislature creating this court, which provides as follows:

“(6) To hear and determine the liability of'the State for acidental injuries or death suffered in the course of employment by any employee of the £>tate, such determination to be made in accordance with tlie rules prescribed in the Act commonly called the ‘Workmen’s Compensation Act’, the Industrial Commission being hereby relieved of any duty relative thereto.” Smlth-Hurd Statutes, 1931, Chapter 37, paragraph 432.

By virtue of Section 3 of the Workmen’s Compensation Act, the terms of said Act apply automatically and without election to the State and by Section 5, the term “employee” as used in the Workmen’s Compensation Act means every person in the employ or service of the State except any official of the State.

Highway patrol officers, such as the deceased, are appointed by the Department of Public Works and Buildings of the State of Illinois. Their tenure1 is at the will of the department. The character of their service and tenure make such highway patrol officers employees rather than officials. City of Pekin vs. Industrial Commission, 341 Ill. 312, 317, 318. There is no dispute in the record but that the deceased came to his 'death from an accidental injury arising out of and in the course of his employment. Claimant as his administratrix is therefore entitled to the allowance of an award by this court.

The salary of the deceased was One Hundred Seventy-five Dollars ($175.00) per month. The deceased left surviving him a legal widow and two (2) children under sixteen years of age, totally dependent upon him for support at the time of his death. Under paragraphs 7(a) and 7(h)3, the claimant would be entitled to an award of Forty-eight Hundred Dollars ($4,800.00) if paid in installments. Under Section 8, the claimant would be entitled to maximum payments of Sixteen Dollars ($16.00) per week. Commuted to a lump sum settlement on the basis of weekly payments, claimant is entitled to a lump sum award of Forty-five Hundred Thirty-four Dollars and Thirty-two Cents ($4,534.32).

An award of Forty-five Hundred Thirty-four Dollars and Thirty-two Cents ($4,534.32) in favor of the claimant as administratrix of the estate of Grady Sutton, deceased, is therefore allowed.


author: Mr. Chief Justice ITollerioh

text:
    (No. 1993 —
    L. C. Miller, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1933.

    Hincheliff, Miller & Thomas, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice ITollerioh

delivered the opinion of the court:

The Fifty-sixth General Assembly of the State of Illinois enacted a statute entitled “An Act to Create a Temporary Commission to Investigate the Advisability or Need of a General Revision of the Laws Relating to Elections, to Make Recommendations Relating Thereto and to Draft any Proposed Legislation and Make an Appropriation Therefore.” Section two (2) of such Act provides as follows:

“Sec. 2. The Commission shall have power to elect a chairman from among its members and secretary from" among its members or otherwise, and to appoint and at pleasure remove such expert help and other assistants as may be necessary to the purpose for which it is created.” (L. 1929, p. 39.)

Pursuant to such enactment of the Legislature, Hon. Louis L. Emmerson, then Governor, appointed the following named persons as Commissioners to carry out the provisions of such Act, to-wit: Edmund K. Jarecki, Milton J. Foreman, and James S. Baldwin.

On December 19, 1930, the Commission, pursuant to the authority given in the aforementioned statute, engaged and employed the claimant, L. C. Miller, as an expert to assist in its work under the aforementioned statute.

From the stipulation of facts heretofore filed herein, it appears that the claimant was to receive for his services a minimum fee of One Thousand Dollars ($1,000.00), together with an allowance of expense money in the amount of Five Hundred Dollars ($500.00), with the understanding that if any part of such expense money were not actually expended, the remainder would be paid to the claimant in addition to the aforementioned minimum fee of One Thousand Dollars ($1,000.00).

The claimant accepted the appointment and continued therein until the 30th day of January, A. D. 1931, and occasionally thereafter until the 1st day of June, A. D. 1931, when the work of the Commission was completed.

At the time the claimant was appointed by the Commission, there was an unexpended balance of Fifty-three Hundred Seventy Dollars and Ninety-two Cents ($5,370.92) in the appropriation made for such Commission. On June 1st, 1931, the date on which the work of the Commission was completed, there was a balance of Thirteen Hundred Eighty-eight Dollars and Eighty-three Cents ($1,388.83) in such fund, which balance was afterwards exhausted without any payment to the claimant except the sum of Two Hundred Twenty-seven Dollars and Forty-five Cents ($227.45), which was paid to him to apply on his expense account.

No question is raised as to the value of the services rendered or the reasonableness of the charge made. Under the stipulation entered into by and between the Attorney General and the claimant, it appears that there is due and owing to the claimant for the services rendered by him to such Commission, the agreed minimum fee of One Thousand Dollars ($1,000.00), and in addition thereto the sum of Two Hundred Seventy-two Dollars and Fifty-five Cents ($272.55), being the unexpended balance of the aforementioned allowance for expenses.

It is Therefore Ordered, That an award be entered in favor of the claimant in the amount of Twelve Hundred Seventy-two Dollars and Fifty-five Cents ($1,272.55), in full settlement and satisfaction of all claims for services and expenses in connection with his work for such Commission.


text:
    (No. 2016 —
    F. E. Olleman, Doing Business as Central Film Service, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1933.

    William O. Thon, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Vause

delivered the opinion of the court:

This is a claim filed by claimant, F. E. Olleman, doing-business as Central Film Service to recover from the respondent damages to a four-reel moving picture film leased by the Illinois School for the Deaf, Department of Public Welfare from the claimant.

The Attorney General, representing the respondent, admits that under the leasing arrangement, the film was to be returned to the claimant in good condition and that from all the facts in the record it appears that the film was damaged beyond repair while in the respondent’s possession at Jacksonville, Illinois. The undisputed evidence is that the fair market value of the film was three hundred dollars ($300.00) and that the same was damaged beyond repair.

Under this state of facts, claimant is entitled to recover the value of the film, and claim is hereby allowed to the claimant in the sum of Three Hundred Dollars ($300.00).