text:
    (No. 2471
    Board of School Inspectors of the City of Peoria, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

      's.. D. Morgan, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant operates three cafeterias for the benefit of students attending its schools; same being operated at cost and not for profit. Under directions of the Director of Finance of the Department of Finance of the State of Illinois, it paid a Retailers’ Occupation Tax of two per cent (2%) on the sales of food made in these cafeterias; the payments being as follows:

October 12, 1933............................................$ 67.41
November 10, 1933......................................... 72.90
December 10, 1933.......................................... 71.78
January 10, 1934............ 51.57
Total $263.66

In February, 1934 the Department of Finance issued Special Eule No. 81, whereby the claimant was advised that “Cafeterias operated by public school boards are held not to be engaged in the business of selling tangible personal property at retail, within the meaning of the Illinois Eetailers’ Occupation Tax Act.”

A claim for refund was filed by claimant with the Department of Finance on or about the 27th day of March 1934, and the claim was allowed and a credit memorandum for the full amount of refund was issued by that department. This credit memorandum was in the usual form and could not be cashed and could only be used for payment of further taxes. It was, therefore, of no value to claimant and as the department has no funds available to make a cash refund, claimant must seek its redress in this court. The Act under which this tax was paid provides as follows:—

“If it shall appear that an amount of tax penalty or interest has been paid which was not due, under the provisions of this Act, whether as the result of a mistake of fact or an error of law, then such amount shall be credited against any tax due, or to become due, under this Act, from the person who made the erroneous payment, or such amount shall he refunded to such person hy the department. Section 6 of Retailers’ Occupation Tax Act. Cahill’s Ill. Revised Statutes. Chap. 120, See. 431.”
"The tax levied by the Retailers’ Occupation Tax Act is an occupation tax and not a property tax. The tax is paid for the privilege of engaging in the occupation of a retailer of tangible personal property. Reif vs. Barrett, 355 Ill. 104.”

It appears, as a matter of fact, that the cafeterias in question are not engaged in the business of selling tangible personal property at retail, but merely in supplying students who attend the schools with food at a cost price. As no tax was due and as the Department of Finance has indicated that fact by issuing credit memo, which in itself evidences the justness of claimant’s claim, but which cannot be cashed because of no appropriation, an award is proper and claimant is legally entitled thereto. The issuance of a voucher in payment of such an award, however, should be conditioned upon the surrender to the Department of Finance for cancellation of the credit memo, heretofore issued by it.

The claim is allowed and an award made in the sum of $263.66.


source: Caselaw Access Project

author: Mr. Chief Justice Hollerich

license: Public Domain

text:
    (No. 2149
    George E. Brown, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    Charles P. Kane, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed his complaint herein on April 14,1933, and alleges therein that on the 19th day of October A. D. 1931 he was driving his automobile in a northerly direction on S. B. I. Route No. 2, at a point about two miles south of the city of Bloomington; that he was in the exercise of all due care and caution for his own safety; that it was the duty of the respondent, through its employees and agents, to keep and maintain said public highway in such condition as not to endanger the life, limb or property of persons traveling upon the same; that said respondent disregarded its duty in that behalf, and through its employees or agents carelessly and negligently barricaded, obstructed and blocked said highway and failed to place a warning light or signal thereon, and that by reason of such negligence and carelessness, the claimant, together with his said motor vehicle, was thrown against and upon said obstruction or barricade and the motor vehicle was forced off the road into a ditch, whereby the claimant sustained serious injuries, and his motor vehicle was damaged and destroyed; for all of which said damages the claimant seeks to recover in this ease.

The Attorney General contends .that there is no liability on the part of the State, and that the case should be dismissed.

This court has repeatedly held that in the maintenance of its hard-surfaced roads the State of Illinois is acting in a governmental capacity, and that the doctrine of respondeat superior does not apply to the State in the exercise of any of' its governmental functions, in the absence of a Statute making it so liable. Braun vs. State of Illinois, 6 C. C. R. 154; Chumbler vs. State, 6 C. C. R. 138; Bucholz vs. State, 7 C. C. R. 241.

Our Supreme Court, in numerous cases, has held this to be the law. Minear vs. State Board of Agriculture, 250 Ill. 546; Kinnare vs. City of Chicago, 171 Ill. 332; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.

In the absence of a legal liability on the part of the State if the State were suable, we have no jurisdiction to allow an award. Crabtree vs. State, 7 C. C. R. 207; Johanna Morrissey, vs. State, No. 2233, decided at the January term, 1934.

Under the well established law of this State, there is no legal liability on the part of the State, and award must therefore be denied.

Award denied. Case dismissed.


author: Mr. Justice Tantis

text:
    (Nos. 2152, 2153, 2154—Consolidated
    Richard Cahill, No. 2152, George Denny, No. 2153, Julia Porter, Admx., No. 2154, Claimants, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    E. J. Gorey, for claimants.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

The three above numbered cases were filed separately, but by agreement of counsel, were afterwards consolidated. The facts involve little dispute and are as follows:

On the 18th day of December, 1932, between five and six o’clock A. M., Richard Cahill, George Denny and Ernest B. Porter were riding in a Plymouth automobile on S. B. I. Route No. 18 eastward toward the village of Lisle. George Denny was the owner of the car, Richard Cahill was driving same and Ernest B. Porter was in the rear seat. Route No. 18 crossed over and above Route No. 53 on* a concrete elevated bridge which was elevated approximately fifty feet (50'). On the north and south sides of Route No. 18 for a distance of approximately six-hundred feet (600') on both sides of such bridge was a concrete wall or railing, which was about four feet (4') high above the surface of the highway; that a connecting road, ramp or incline extended in a southerly direction from Route 18 for a distance of about six hundred feet (600') where it connected with Route 53.

Claimant contends it was the duty of respondent to have so built and so maintained the highway at the point in question, that it would furnish safe and convenient passage to all persons traveling same, but that it had carelessly and negligently constructed the concrete wall in question and had permitted same to remain unguarded, unlighted and without warning and that as a result the claimants while in the exercise of due care and diligence for their own care and safety, were thereby, and through the negligence of the State, injured as alleged. The facts further appear that it was a misty, foggy morning. There was no reflecting light or signal on the concrete end-post in question, and the record indicates that the conditions were such as to easily confuse a driver who was not in the exercise of more than ordinary care. It is a case which appeals to the sympathetic minds of the court, but in neither of the three claims in question can an award against the State be authorized.

The State, in constructing the ramp or incline in question, was endeavoring to improve the traveling conditions for the general public. Considerable testimony appears in the record •to show the condition and manner of construction of the highways at the intersection in question, and to show that such construction was dangerous to the public, and that the failure to erect warning signals that could be seen day or night, was negligence upon the part of the employees of the Highway Department. As stated in Morrissey vs. State,

“In the opinion of the court it is not necessary to discuss at length the evidence in detail. As shown by the claim and the record, the highway and the concrete abutment of which complaint is made as to the method of construction and maintenance, were built by, are owned and are controlled by the State of Illinois. In the construction and maintenance of its roads, the State acts in a governmental capacity and in the exercise of its 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.”

Morrissey vs. State of Illinois, 2 C. C. R. 454.

The Highway Department of Illinois, like the State Board of Agriculture, is an arm or agency of the State, existing for the promotion of the public good.

As stated in the “Minear Case”, “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 negligence.” (Minear vs. State Board, etc. 259, Ill. at 559.)

The fact that specific power had been granted in the Act creating the State Board of Agriculture for it to sue and be sued, was there held not to subject the State to a liability for torts. As the court there said, there is a distinct difference between conferring suability as to debts and other liabilities, for which the State is now liable and extending liability for causes not heretofore recognized.

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 in the absence of such statute, the court is of the opinion that it should make no award.

Chumbler vs. State, 6 C. C. R. 138.

Hollenbeck vs. County of Winnebago, 95 Ill. 148.

The three claims are, and each of them is, hereby denied and the respective claims are dismissed.


author: Mr. Justice Yantis

text:
    (No. 1786
    J. O. Cardin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    B. W. Eovaldi and Moses Pulverman, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

This claim was filed July 3, 1931, for “a certain sum of money each month during the existence of claimant’s disability. ’ ’ The declaration alleges that claimant went to work as a night guard at Stateville State Prison on October 8,1929, and continued to work until December 18, 1930; that prior to such employment he was examined by Dr. M. Harris and was found physically fit as to his nervous system and physical being; that during his service as a prison guard, he worked thirteen or fourteen hours per night; was compelled to sit in a little sentry box with glaring-lights in his face; that he had to call the prison operator every fifteen minutes during the night hours; and that in the daytime it was impossible for him to sleep because of the constant work and noise by other employees of the prison; that some time during August, 1930, lightning struck a post nearby which added to his nervous condition and that in November, 1930, he fell on the ice on his way to work and that he hurt his side and ribs; that claimant’s condition gradually weakened and he went to the Speedway Hospital in Chicago on June 30,1930; was sent from there to the Government Plospital at Danville, Illinois; obtained two months leave of absence, during which time he was attended by a physician; that he returned to Stateville Prison on August 25, 1930, and worked until December 16, 1930, when he had a nervous breakdown and that he left the institution on December 18, 1930. The complaint is in the nature of a general petition for a permanent pension of such amount as may appeal to the equitable mind of the court.

Counsel for claimant in their statement and brief (page 14) state as follows:

“We admit that under the decisions of this court the State, as a matter of law, is not liable for injuries sustained by its employees while in the discharge of their duties, but we submit that under the peculiar circumstances of this case, it is one with great merit and in equity and good conscience and in the interest of social welfare and justice the court should enter an award in favor of this man.”

Plaintiff cites a number of cases appearing in Volume 4, C. of C. Reports, wherein the court held that, although no legal basis for an award existed a recommendation would be made that the Legislature make an appropriation as an act of social justice and equity.

We believe the correct rule for the consideration of claims of this character is fully considered and set forth in the case of Crabtree vs. State, 7 C. C. R. 207, wherein it is 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 resting upon the State to pay a claim, then justice requires that the State should pay it * * *.
“Claimant’s idea seems to be 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.”
“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.”

The record shows that the claimant was situated the same as all other guards at .the prison and performed the same duties as such other guards. Every other guard at every prison in the State might with equal right present a similar claim. There is no law of the. State that would justify this court in making an award to an employee under such circumstances. Nothing appears to justify such an award and the claim is therefore denied and case dismissed.


author: Mb. Justice Yantis

text:
    (No. 2291
    William P. Congdon, Administrator of the Estate of Walter Congdon, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    John Benedek, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claimant herein asks an award of Ten Thousand Dollars ($10,000) for personal injuries due to the death of Walter Congdon while traveling by auto on one of the State highways, and as a basis therefor, alleges that on the first day of April the State of Illinois was possessed of and had control of a highway in Lisle Township, DuPage County, known as S. B. I. No. 18, which intersects S. B. I. No. 53, the latter passing underneath the viaduct or bridge on Route 18, and the two roads being connected by a paved side, or connecting, road; that at the southwest end of said viaduct there is a concrete rail approximately four feet high; that it was the duty of respondent to keep the highway free from obstruction and to have same sufficiently lighted so as to enable people riding or driving thereon to readily discern any obstructions, and so as'not to endanger the safety of persons riding upon said highways; that respondent disregarded its duty, and carelessly and negligenty permitted the concrete wall or obstruction to be or remain unguarded and unlighted in the night time; that by reason of such purported negligence of respondent, the automobile of one Joseph Fisher, then driven by the latter, and in which the said Walter Congdon was riding, collided with said rail and that Walter Congdon thereby recóived injuries from which he died.

The complaint further avers that Walter Congdon left surviving — his father, mother and three brothers as his only next of kin and as the result of his death that they have been and will be deprived of large sums of money and valuable services, which he was accustomed to perform and would have contributed to their benefit in the future.

The Attorney General has filed a motion to dismiss said complaint for the reason that in the construction and maintenance of its roads, the State acts in a governmental capacity and in the exercise of same does not become liable in tort by reason of the negligent acts of its agents.

The State, in constructing the ramp or incline in question, and the concrete abutment that formed a part of such general road improvement, was endeavoring* to improve the traveling* conditions for the g*eneral public. In the opinion of the court the objection by the Attorney General is well founded and the motion to dismiss the claim should be allowed.

“In the construction and maintenance of its roads, the State acts in a governmental capacity and in the exercise of its 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. Morrissey vs. State, 2 C. C. R. 454; Minear vs. State Board, etc., 259 Ill. at 559.”

The General Assembly has never enacted a law making the State liable for damages caused by the negligent construction or the maintenance of a public road, and in the absence of such a statute, this court is of the opinion that no award should be made on the claim herein filed.

Chumbler vs. State, 6 C. C. R. 138.

Hollenbeck vs. County of Winnebago, 95 Ill. 148.

The motion of the Attorney General is allowed and the claim dismissed.


text:
    (No. 2360
    George A. Crawford and C. J. Clymer, Claimants, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    Martin J. Gannon, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimants allege that on March 1, 1933, they were the owners of ten acres of hay land and one hundred loads of manure, located on the farm of George N. Crawford in Lee County, Illinois; that the State, through its employees, while engaged in repairing and clearing* S. B. I. Eoute No. 6 and while engaged in burning brush and dead grass, neglig*ently suffered a fire to be unattended and suffered same to spread over the said lands, and that thereby ten acres of hay and approximately one hundred tons of manure on said land were burned and destroyed, all to the total value of $425.00.

The. State has filed a motion to dismiss the claim, for the reason that the declaration does not state a sufficient cause of action against the State, whereby an award could legally be made.

Counsel for the claimants has filed a reply brief, wherein they state, that while there might be no legal basis for a claim, yet in equity and good conscience, claimants should be paid damages herein. In support of their contention, they have cited a number of cases wherein this court, as previously constituted, has held that “while no legal liability existed, wherein an award might be made, yet in ‘equity and good conscience’ an award would be made on the ground of social justice.”

The construction which this court believes it should place upon its jurisdictional rights, has been set forth in the case of “Crabtree vs. State, 7 C. C. R. 207” and for brevity, reference is made thereto. Provision .of Paragraph 4 of Section 6 of the Court of Claims Act with reference to ‘ ‘ equity and good conscience,” merely defines the jurisdiction of the court, and does not create a new liability against the State, nor does it increase any existing* liability. The jurisdiction of the court is limited to claims under which the State would be liable, in law or equity, if it were suable, and if the claimant fails to bring himself within the provision of some law giving him the right to an award, he cannot invoke the principles of “equity and good conscience” to secure one.

“It is a rule of almost universal application, that no government is liable for the negligence or misfeasance of its officers and agents in the absence of a Statute making it liable. Gibbons vs. U. S., 8 Wal. 269; U. S. vs. Kirkpatrick, 9 Wheaton 720; Jorgensen vs. State, 2 C. C. R. 134; Reliable Coal & Mining Co. vs. State, 7 C. C. R. 56.”

As the declaration does not state a cause of action against the State, the'motion to dismiss is allowed and the claim dismissed.


text:
    (No. 2278
    Josephine Groja, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    Edward Kelly, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Just prior to and on the 28th day of May, A. D. 1933, Richard Groja was in the employ of the respondent as a State highway patrolman, at a salary of $160.00 per month. On the last mentioned date, while riding his motorcycle on the Rand Road near DesPlaines, in answer to a police call, the motorcycle in some manner left the road and collided with a tree, whereby said Groja sustained injuries which resulted in his death on the same date.

Said decedent left him surviving the complainant, Josephine Groja, his widow, and Marilyn Groja, aged seven months, his child, as his sole and only heirs-at-law and next of kin, both of whom were dependent on the deceased at the time of his injury for their support.

There is no dispute as to the facts, and it is conceded by the respondent that at the time of the accident in question, said decedent and said respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and that the accident in question arose out of and in the course of the employment of said decedent.

We therefore find as follows:

1. Under the provisions of Sections 7A, 7G and 7H3, the widow and minor child of said decedent are entitled to com pensation in the total amount of $4,450.00; the said Josephine Groja being entitled to $4,000.00, and the said Marilyn Groja being entitled to $450.00.

2. That said compensation is payable in weekly installments of $15.00 commencing on the 29th day of May, 1933.

3. That it is to the best interests of all parties concerned that the compensation to which the said Marilyn Groja is entitled as aforesaid be paid to her mother, Josephine Groja, for the support of said child.

4. That payment by the respondent in weekly installments is not practicable under existing laws, and that it is to the best interest of the parties concerned that the compensation to be paid as aforesaid be commuted to an equivalent lump sum in accordance with the provisions of Section 9 of the Workmen’s Compensation Act.

It is therefore ordered that the compensation to which the said Marilyn Groja is entitled as aforesaid, be paid to her mother, Josephine Groja, for the support of said child; and that the total compensation to be paid to the claimant herein be commuted to an equivalent lump sum in accordance with the provisions of Section nine (9) of the Workmen’s Compensation Act.

As we compute it, the total amount of compensation to be paid as aforesaid, is $4,311.31.

It is Therefore Hereby Ordered that an award be and the same is hereby entered in favor of the claimant, Josephine Groja, for the sum of Forty-three Hundred Eleven Dollars and Thirty-one Cents ($4,311.31).


text:
    (No. 2323
    Rose M. Downey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    Rose M. Downey, pro se.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant, on February 7, 1934, filed her complaint alleging that on May 14, 1933, an Illinois State truck backed into her Packard car and that as a result thereof, she had to have the- left front fender of her car straightened and refinished, at a total expense of Nine and Seventy-five/100 Dollars ($9.75).

The Attorney General has filed a motion to dismiss the claim for the reason the declaration does not state a cause of action for which an award could properly be made.

The declaration is drawn on the theory that “The State is liable for injuries caused by the negligent conduct of its employees.’’ “The State, however, is not liable for damages caused by the negligence of its servants, agents or-employees, unless there is a Statute expressly making it so liable. This rule has been uniformly held to apply to all cases considered by the present court. ’ ’

Braun vs. State, 6 C. C. R. 104.
Reliable Coal & Mining Co. vs. State, 7 C. R. R. 56.

The motion of the Attorney General to dismiss the claim is allowed and the claim is dismissed.


text:
    (No. 2281
    Cleeta Elliott, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    Miller, Elliott & Westervblt, for claimant.
    Otto Keener, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Under a stipulation of facts filed herein, it appears that the claimant is a resident of Chillicothe, Illinois, and is the widow of Joseph Merritte Elliott, deceased; that the latter was employed by the State Department of Public Works and Buildings, Division of Highways, as a State highway patrolman on Boute No. 29; that on October 20, 1933, while riding in an automobile owned by the State of Illinois and driven by Herman J. Bohman, also a State highway patrolman, he sustained fatal injuries caused by the car skidding into a culvert and turning over on the wet pavement on State Highway Boute No. 24, five miles south of Pekin, Illinois; that at the time of the accident he was engaged in the performance of his duties as highway patrolman, acting under orders of his superior officer, Sergeant Mollohon. At the time of his death, Joseph Merritte Elliott left surviving his widow, Cleeta Elliott, claimant herein, and an unborn child as sole and only heirs at law; said child was born on the 4th day of February, 1934, and is now living and is named Joseph Merritte Elliott; that the claimant and said deceased were living together as husband and wife at the time of his death, and that he was her sole support, and that his average annual earnings, at the time of his death, were in excess of $1,000.00 per year, with a monthly salary of $150.00. That the claim is filed under the provisions of the Workmen’s Compensation Act of Illinois, and pursuant to the provisions, of Paragraph 6, Section 6, of the Court of Claims Act.

Claim is made on behalf of claimant as the surviving widow for $4,000.00, and for .an additional $450.00 by reason of the child, Joseph Merritte Elliott. The validity of the claim for $4,000.00 is conceded by the Attorney General’s office, and the only question is as to the granting of an award for the benefit of the child who was unborn at the time of the death of its father. Cahill’s Bevised Statute on Descent, Section 9, Chapter 39, provides as follows:

“A posthumous child of an intestate shall receive its just proportion of its ancestor’s estate in all respects, as if it had been born in the lifetime of the father.
“At common law, a child en ventre sa mere is deemed to be living at the time of the death of an intestate for the purpose of inheritance by-descent.”
Tomlin vs. Lams, 301 Ill. 616.

The citations of claimant support the doctrine that a child en ventre sa mere at the time of the father’s death is deemed to have been born so far as it is for the benefit of such child, and that it will be entitled to claim for compensation as a legal dependent. Had the deceased lived, the child would have been able to look to him for its natural support, and the court is of the opinion that such child should be regarded as in esse.

We therefore find that under the provisions of the Compensation Act, the claimant, Cleeta Elliott, is entitled to an award of Four Thousand Dollars ($4,000.00), for herself, and the sum of $450.00 for the support of the minor child, Joseph Merritte Elliott, all payable in weekly installments of Fifteen Dollars ($15.00), commencing on the 21st day of October, A. D. 1933.

Payment by the respondent in weekly installments, however, is not practicable under existing laws and the respective awards will therefore be commuted to an equivalent lump sum in accordance with Section 9 of the Workmen’s Compensation Act.

As we compute it, the amount due the claimant, Cleeta Elliott, after commutation to an equivalent lump sum as aforesaid, is Thirty-eight Hundred Forty-seven Dollars and Twenty-five Cents ($3,847.25), and the amount due for the support of said minor child, Joseph Merritte Elliott, after commutation to an equivalent lump sum as aforesaid, is Four Hundred Thirty-two Dollars and Eighty-one Cents ($432.81).

It is Therefore Hereby Ordered that an award be and the same is hereby entered in favor of the claimant, Cleeta Elliott, for herself and said child as above stated in the total sum of $4,280.06.


text:
    (No. 2411
    Evangelical Deaconess Hospital of Lincoln, Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    William M. Scanlan, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

The facts in the case of Evangelical Deaconess Hospital are fully set forth in the case of Dr. Charles J. Hutton, No. 2407, decided at the present term of this court and the reasons for the allowance of an award are therein stated. To save repetition reference is, therefore, made to that cause.

An award is herein allowed in favor of Deaconess Hospital of Lincoln, Illinois, in the sum of $172.67.


text:
    (No. 2177
    Ralph C. Foster, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    Harris & Harris, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Ralph C. Foster filed his complaint on May 17, 1933, asking an award under the Compensation Act for injuries sustained through frostbite while engaged in removing snow from S. B. I. Route No. 95. It has been stipulated between claimant and respondent that the occupation of claimant at the time in question was that of a day laborer, that his wages were thirty-five cents (35c) per hour on an eight and one-half hour a day basis, six days a week, and that by virtue thereof and under Section 10-E of the Compensation Act, his average wage would be $18.00 per week.

Claimant was employed with others from five o’clock p. m., on February 7, 1933, until 7:30 o’clock in the morning of February 8, 1933, during a severe snow storm, to assist in removing snow from S. B. I. No. 95. It was extremely cold, from nineteen to twenty-four degrees below zero, and very windy. A snow storm had been raging and in places the drifts were five feet deep. Every effort was apparently being made by the crew, in which claimant was working to get the roads open. There was no shelter, except on one or two occasions, when the men stopped work and went to a nearby farmhouse to get warm. As a result of the exposure to the severe weather, claimant froze his feet during the night. Claimant did not know his feet were frozen until he arrived home the next morning and attempted to remove his shoes. A doctor was called and he was treated for frozen feet and on March 19, 1933, was operated upon. The great toe on the right foot was removed by amputation into the foot, the second toe was entirely removed, the third toe at the third joint was removed and the fifth toe at the first joint. On the left foot the great toe was completely removed. Claimant remained under treatment at the hospital for five weeks after the operation, and the feet eventually healed and about the first of September, 1933, he was able to discard his crutches and thereafter walk.

Claimant incurred a bill of $69.00 with Dr. McPherson; a hospital bill at the Marietta Phelps Hospital of $142.35; a medical bill due Dr. J. W. Hermetet of $164.00, all of which are shown to be reasonable charges.

Claimant was paid $7.25 by the State for his work on the night his feet were frozen, and was thereafter paid $44.44 while in the hospital. It appears that notice of the injury was duly given and the claim filed, as provided under the terms of the Compensation Act.

On the night of the injury claimant was wearing a pair of common black cotton socks, ankle high shoes, and four-buckle overshoes. He had on a'big fur coat, his shoes were in good condition, and his overshoes ' were comparatively new. James Hainline, a fellow-workman, testified that he froze his finger while engaged in the work, and while there was a vacant farmhouse where the men built up some sort of fire at one time, when nearby, there was no place where they could warm themselves at any regular intervals, nor did the nature of the work of keeping the snow cleared from the road-way throughout the night, permit of much opportunity to thus warm themselves.

It seems that the only question at issue is one of law, viz: whether or not the freezing of the feet of claimant is an accidental injury, compensable under the Workmen’s Compensation Act. It is admitted he was an employee of the State and acting within the scope of his employment at the time complained of. Claimant contends that the accident arose out of and in the course of his employment and that the nature of his work subjected him to exposure to the elements in a much greater degree than that to which others in the community were subject. Claimant contends that where an employee, because of his duties, is exposed to special or peculiar danger from the elements or weather conditions, greater than that to which others in the community are exposed, and that an unexpected injury is sustained thereby, such injury constitutes an accident arising out of, and in the course of, employment and compensation is payable therefor.

A case with citations contained therein, in point, is that of Consumers Company vs. Industrial Commission, where claimant suffered injuries through frostbite, while engaged in shoveling coal. In that case no compensation was allowed and the court said:

“Injuries resulting from exposure to weather conditions, such as heat, cold, ice, snow or lightning, are generally classed as risks, to which the general public is exposed, and not within the purview of Workmen’s Compensation Acts, although the injured person at the time he received his injury may have been performing duties incident to, and in the course of his employment. . The rule is generally recognized, however, that if an employee, because of his duties, is exposed to a special or peculiar danger’ from the elements, a danger that is greater than that to which other persons in the community are subjected, and an unexpected injury is sustained by reason of the elements, the injury constitutes an accident, arising out of and in the course of the employment within the meaning of the Workmen’s Compensation Acts. If the character of the employment is such as to intensify the risks that arise from extraordinary natural causes, an accident under such circumstance is one arising out of the employment.”

Consumers Company vs. Industrial Commission, 324 Ill. at 155.

The Attorney General, in his brief, cites this further wording from the above opinion:

“The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. If the accident under the circumstances of the employment was merely a consequence of the severity of the elements to which persons in the locality, whether so employed or not, were equally exposed, it is not compensable.”

Considering the language of the entire opinion just cited, and the citations therein contained, this court is of the opinion that the claim at bar is compensable under the Workmen’s Compensation Act.

Claimant on the night in question was engaged in work that exposed him in an extra-ordinary degree, to the effects of the elements. Helping to clear the roadway throughout the night in a blizzard, with a temperature from ten to twenty degrees below zero, exposed him to special and peculiar danger of freezing, greater than that shared by other persons in the same locality. Working in the particular spots where the snow was drifted placed him in position more hazardous and more severe than those not similarly working. The demand for constant and active service with no adequate opportunity of warming himself from time to time, brings claimant within the approval of the cases cited. None of the material circumstances on which a denial of relief in the Consumers Case (supra) were present here. The place where claimant worked was unprotected, no place was provided by the State where claimant and the other men could occasionally warm themselves, and although claimant was apparently warmly dressed, he suffered the injuries complained of. As a further indication of the severity of the immediate work in which he was engaged, is the fact of the freezing of a finger by one of his fellow workmen, James Hainline.

Under the facts appearing herein, compensation should be allowed as follows, on the basis of wages at $18.00 per week:

For loss of great toe on. right foot, 50% of average weekly Wage for 35 weeks.
For loss of second toe on right foot, 50% of average weekly wage for 12' weeks.
For loss of third toe on right foot, 50% of average weekly wage for 12 weeks.
For loss of first phalange on fifth toe of right foot (Compensable on basis of one-half of total loss of toe) 50% of the average weekly wage for 6 weeks.
For loss of great toe on left foot, 50% of average weekly wage for 35 weeks.
Total for specific loss — 100 weeks at $9.00 per week.......... $900.00 ■
Also for temporary total incapacity for 31 weeks from the 8th day of February, 1933 to September 13, 1933, and 50% of the average weekly wage, or $279.00, against which is a credit of $44.44 previously paid, leaving a balance for temporary total incapacity of.. $234.56
Dr. Mac Pherson, medical account............................... 69.00
Marietta Phelps Hospital....................................... 142.35
Dr. Hermetet, medical account.................................. 164.00
Total ...................................................... $1,509.91

The record indicates that the services of the doctors in question and the hospital were rendered at the request of the State, through Herbert Oakman, Maintenance Supervisor, District No. 4, State Highway Department. The court is of the opinion that these bills should, under the evidence, be allowed.

An award is therefore made in' the sum of Fifteen Hundred Dollars and Ninety-one Cents ($1,500.91). As the period during which the weekly payments would be made under ordinary practice will have expired by the time the lump sum payment is available by appropriation of the Legislature, no commutation to a lump sum will be made. In paying the award a voucher of $69.00 should be issued to claimant, for the use of Dr. C. H. MacPherson; another to claimant for use of Dr. J. W. Hermetet for $164.00; another to claimant, for the use of Marietta Phelps Hospital for $142.35 and the balance of $1,134.56 should be payable to claimant.


author: Mb. Justice Yantis Mb. Justice Yantis

text:
    (No. 2178
    Rose Gabriel, Widow of Angelo Gabriel, Deceased, and Mother of Frances, Anthony, Genevieve and Angelo Gabriel, Minor Children of Said Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

      Rehearing allowed January 9, 1935.

    S. E. Piancenti and Henry Pollenz, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Under the stipulation of facts herein, it appears that Angelo Gabriel was an employee on May 19,1932, of the Division of Highways, Department of Public Works and Buildings, of the State of Illinois, and was employed in the Maintenance Department as a helper on S. B. I. Route No. 49; that while engaged on said date in pouring asphalt on said highway, he was hit by an automobile then being operated over said highway by one Joseph O. Smith, of Manteno, Illinois; that he thereby sustained injuries which necessitated his removal to St. James Hospital at Chicago Heights, and which resulted in his death on July 10, 1932. It further appears that he was paid at the rate of fifty cents (50c) per hour for nine hours a day and five and one-half (5%) days per week; his wage being approximately $24.75 per week or an average annual wage of Twelve Hundred Eighty-seven Dollars ($1,287.00).

Rose Gabriel, widow of the deceased was appointed administratrix of his estate. Deceased left surviving besides the widow, four minor children, all of whom are under sixteen years of age and residing with the mother.

A suit was instituted against Joseph O. Smith by the administratrix and a settlement was made with the defendant’s insurance company on December 24,1932, for the sum of Four Thousand Eight Hundred Dollars ($4,800.00).

Claimant contends for herself and on behalf of the said children that as decedent’s annual, earnings were $1,287.00 they are entitled to receive compensation of four times that amount with the $4,000.00 maximum increased to $5,500.00 because of the four minor children; deducting therefrom, however, the amount of $4,800.00 above mentioned and with a further deduction of $115.75 paid to Angelo Gabriel after the accident and before his death, making a demand of $584.25.

The claim is made under the Workmen’s Compensation Act and the Attorney General does not take issue with the claimant either as to facts or law, admitting the liability of the State upon the foregoing basis. The court must determine the correct amount of the award under Section 7, Paragraphs A, (h)l, (h)2 and (h)3, W. O. A. i. e. when four times the annual wages' is less than the increased maximum, should such maximum be awarded, or only an amount equal to four times the annual wages.

Under the recent decision of the Supreme Court of Illinois in Moweaqua Coal Company vs. Industrial Commission, (June Term, 1934), it is held that in a case where the maximum amount of $4,000.00 is provided and there are three or more children under the age of sixteen years at the time of the death of the employee, the amount is not arbitrarily raised to $5,500.00 but the proper amount is the actual amount of four times the annual average earnings, but not more than $5,500.00.

In the present case the annual earnings are shown to be $1,287.00. Pour times that amount is $5,148.00. Deducting the amount already received from the State, i. e., $115.75, and the sum received from Joseph O. Smith, i. e., $4,800.00, leaves a balance due claimant of $232.25.

It appears that the State has paid all the regular hospital and medical accounts. The claimant has properly stated the subrogation rights of the State, and an award is therefore allowed to Rose Gabriel for herself and the support of said children for the balance due of $232.25.

Opinion on Rehearing.

Mb. Justice Yantis

delivered the opinion of the court:

A petition for rehearing having been heretofore granted on January 9, 1935, and the above cause now again coming before the court upon the petition of claimant to affirm the original award, and the same having been considered, the court finds that the opinion heretofore filed on December 11, 1934, is in accord with the law and the facts. Said original opinion is hereby reaffirmed and an award is entered in favor of plaintiff, Rose Gabriel, for herself and the support of her minor children for the balance shown to be due her in the premises in the sum of Two Hundred Thirty-two and 25/100 Dollars ($232.25).


text:
    (No. 2409
    Dr. E. G. Gaffney, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    William M. Scanlan, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

The facts in the ease of Dr. E. C. Gaffney are fully set forth in the case of Dr. Charles J. Hutton, No. 2407, decided at the present term of this court and the reasons for the allowance of an award are therein stated. To save repetition reference is, therefore, made to that cause.

An award is herein allowed in favor of Dr. E. G. Gaffney in the sum of $70.00.


text:
    (No. 1784
    Franklin J. Gayles, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    Benjamin C. Pollard, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant, F. J. Gayles, was a member of the 8th Infantry Headquarters Company, 2nd Battalion Illinois National Guard and on August 3, 1930, was on duty with his Company at Camp Grant, Rockford, Illinois. He was ordered by Ms Commanding Officer, Lieutenant CMistley, to go to Ms tent. Instead of directly doing so, he went to a telephone and then entered his tent. After being in the tent for a brief time, First Sergeant Ward, who had been searching for claimant to determine why he had not obeyed the command of Lieutenant Christley, came to his tent door and called him out; claimant walked to the door of the tent and Sergeant Ward stated “That he was tired of his damn foolishness,” and thereupon struck claimant with a pistol across the nose, whereby claimant was rendered unconscious, suffered a cut and broken nose and general bruises to the mouth and face; that as a result his nose is stopped up and he cannot breathe clearly; that he still requires treatment for same and that there is a daily discharge of blood from same; that claimant is a Post Office employee and that his disability interferes in the ordinary conduct of his work. Claimant also complains that prior to his injury he had been in good health, but that after the attack in question he found that he was suffering from a slight hernia. Claimant seeks $3,000.00 award to cover the cost of an operation to his nose; for a hernia operation and to recompense him in a general way for the loss in ability claimed to have been suffered by him.

The declaration alleges that the assault in question occurred while claimant was in the exercise of his rights and duties as a soldier. Complaint also states that a military board was called and that the findings of the board were in affiant’s favor, as he is informed and believes.

The report of the military board shows a diagnosis as follows:

"Two lacerated wounds on nose, severe;”
(1) Left lateral aspect 1% inch,
(2) Right lateral aspect 1 inch- probable fracture,
“Injury occurred in line of duty.”

Regardless of what the record shows as to what claimant had been doing earlier in the day, he was in his tent in compliance with instrnctions of his Commanding Officer at the time of the assault by Sergeant Ward.

What is meant by the expression “while in line of duty” is not always easy to determine.

In the claim of Gillespie for pension we find an apt illustration of the interpretation of the words, in line of duty (2 Dec. Dept. Int. Pensions 16) the claim was based upon an injury the claimant received in an altercation with a member of his company, in which the latter struck Gillespie upon the head with a board and injured his skull. The claim was disallowed upon the ground that the injury was not received while he was “in the line of duty.” The question involved in the claim was stated as being, not whether claimant was to blame for the conduct of his assailant, but whether the blow struck by the latter was a necessary or even a reasonable incident of line of duty.
In' passing upon a similar case the Pension Department of the Federal Government has said “the department holds in this and all similar cases that the wound, injury or disease must be the natural, probable or approximate result either mediate or immediate of the soldier’s military duty, and that the phrase line of duty denotes that an act of duty performed, in order to entitle claimant to a pension, must have relation of causation, mediate or immediate to the wounds or injury which produced the disability or death.”

The principal loss suffered by claimant is one of physical blemish and the continuing injury to his nose. The testimony of Dr. G-ayles is that'if an operation is performed upon the patient’s nose he would again get normal functions of the nose, and that the probable total cost including hospitalization and medical service would not be in excess of $175.00.

No recoveries can be allowed under Section 10, Article 16 of the Military and Naval Code of Illinois for that section provides:

“for an allowance of stated pay in cases where the officer or enlisted man is wounded or disabled while on duty and lawfully performing the same, so as to have prevented Mm from working at his profession, trade or calling.”
Under Section 11, Article IS of said code "any officer or enlisted man who shall be injured while performing his duty in pursuance of orders, shall have a claim against the State foT financial help and the State Court of Claims shall adjust the same as the merits of each case may demand.”

The court is in great doubt as to whether claimant was injured while performing his duty in pursuance of orders, within the meaning of the above Section 11, but whether he was performing any duty or not, he was in his tent where he had been ordered to go by his Commanding Officer. The unwarranted attack by Sergeant Ward causes the court to feel justified in extending every reasonable relief that can be justified by the court. An operation will remedy the nasal trouble at a cost not to exceed $175.00. There is nothing in the record sufficient to show any connection between the blow on the nose and the small hernia which patient found himself to be troubled with at a date shortly thereafter, and no award can be justified for the existence of same or for an operation in the relief thereof. The record does not disclose any decrease in the actual amount of claimant’s earnings, but there is a facial disfigurement which is apparently of a permanent character.

Under the Employers’ Liability Act of Illinois claimant would be allowed whatever amount might be fixed upon arbitration of the claim not to exceed one-fourth of the amount payable as a death claim under Section 7-A of the Act. It is difficult to visualize claimant’s appearance from the meager record at hand, but considering the record as we find it, an award for $200.00 will be allowed for facial disfigurement and $175.00 for medical and hospitalization care incident to a nasal operation, making a total of $375.00.

An award is, therefore, made in favor of claimant in the ■ sum of Three Hundred Seventy-five Dollars ($375.00).


text:
    (No. 2292
    Karl Gingrich, Administrator of the Estate of Lena Gingrich, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    John Benedek, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

This claim grows out of the same state of facts as alleged in the case of William P. Congdon, Administrator, etc. vs. State, No. 2291, considered at this same term.

From the declaration filed herein, it appears- that Lena Gingrich was a passenger in the automobile of Joseph Fisher and was killed when the automobile crashed into a concrete abutment constructed at the intersection of S. B. I. Routes 18 and 53. The Attorney General has filed a motion to consolidate this claim with No. 2291, supra, and thereby to dismiss the claim. For the purpose of considering the pleadings, the motion to be consolidated is allowed and under the opinion filed in the Congdon case (No. 2291) this claim is dismissed.


author: Me. Justice Yantis

text:
    (No. 2078
    Goodyear Service, Incorporated, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.
    Boy Geibe Hill, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

This claim was filed February 24, 1933, asking a refund of $55.53 alleged due claimant for auto supplies in the total sum of $55.53. The records show that the merchandise in question was furnished by the Lincoln Tire Company to the Bureau of Machinery of the State of Illinois, and that, that company has been succeeded by Goodyear Service, Incorporated; the merchandise (auto tires) were supplied to Mr. Cleaveland and the only reason apparently for the delay in payment is, that the appropriation lapsed before the presentation of the bill.

“Where the facts are undisputed that the State has received supplies legally ordered and that a bill therefor was not presented for payment until after the lapsing of the appropriation out of which such bill could have been paid, an award for the amount due will be made, unless it appears there has been an unreasonable and unexplained delay upon the part of the claimant.”
Shell Petroleum Corp. vs. State, 7 C. C. R. 224.
Grant Tire Company vs. State, 7 C. C. R. 183.

An award is made for Fifty-five añd 53/100 Dollars.


author: Per Curiam:

text:
    (No. 2358
    Great Lakes Construction Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    Oswald D. Luby, George E. Billett and John J. Grealis, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Per Curiam:

The claimant is, and for a number of years past has been, engaged in business as a general building contractor, and on April 9,1934, filed its complaint herein in which it sets forth:

That on December 4, 1928, it entered into a contract with the respondent through the Department of Purchases and Construction, for the construction of a drill hall and stable section of the Armory for the 124th Field Artillery, Illinois National Guard, at Cottage Grove Avenue and East 52nd Street, Chicago, for the sum of Three Hundred Fourteen Thousand Nine Hundred Two Dollars ($314,902.00); that the claimant performed all of its obligations under said contract and completed the construction work provided for therein, on or about the 24th day of October, A. D. 1929, and that the same was duly accepted by the State of Illinois on or about the 1st day of November, A. D. 1929; that from time to time during the process of construction under said contract, the respondent ordered the claimant to make certain changes and additions in said construction which were not provided for by the terms of said contract; that pursuant to such orders the claimant furnished the labor and material required for such changes and additions, and that the same were completed and accepted by the respondent during the process of such construction, and that because of such changes and additions, the claimant became entitled to receive extra compensation in the amount of $71,112.08.

That during the process of such construction, the respondent ordered the claimant to make certain other changes and omissions from the requirements of such contract, for which the respondent was entitled to receive credits in the form of deductions from the original contract price, amounting to the sum of $8,827.00.

That on the 6th day of December, A. D. 1929, the claimant and the respondent entered into another contract, for the construction of certain additions to the building provided for in the contract of December 4, 1928, to-wit, an addition to the building known as the “Head House” and an addition to the building known as the “Stable Building;” that thereafter the architects and agents of the respondent ordered certain partitions to be installed in said building, and certain bunkers to be installed in the basement thereof; that all of said work was completed and installed by the claimant and duly accepted by the respondent; that by reason thereof the claimant became liable to pay the respondent for said extra or additional work on said contract of December 6, 1929, the sum of $4,772.15, no part of which has been paid.

That an appropriation was duly made by the General Assembly of the State of Illinois for the work embraced in the contract dated December 4, 1928, and an appropriation was also duly made by the General Assembly of the State of Illinois for the work embraced in the contract dated December 6, 1929.

That by reason of the foregoing, there became due to the claimant under the original contract of December 4, 1928, the sum of $314,902.00.

That there also became due to the claimant for extras and additions to said original contract as hereinbefore set forth, the sum of $71,112.08.

That there also became due to the claimant under said contract of December 6, 1929, the sum of $4,772.15, making a total gross amount due the claimant of $390,786.23.

That the respondent is entitled to a credit on account of omissions from said original contract, as hereinbefore set forth, in the amount of $8,827.00.

That the respondent has paid the claimant on account of the aforementioned contract of December 4, 1928, and the extras thereunder, the total sum of $345,363.48, making a total credit to the respondent, of $354,190.48, and leaving a net balance due the claimant of $36,595.75.

The complaint sets out in great detail the various changes ordered and made, as well as a copy of the original contracts and other papers and documents relative to the various additions, omissions, changes and modifications made, etc., and concludes with a demand for judgment in the amount of $36,595.75.

After the filing of the complaint herein, various confer-_ enees were had between the officers of the claimant and the Supervising Architect of the Department of Public Works and Buildings of the respondent, for the purpose of determining the amount to which the claimant was rightfully entitled under the terms and provisions of said original contracts and the changes thereafter made by the respondent, for alterations, additions and omissions.

As the result of such conferences, the parties thereto arrived at an agreement as to the amount due the claimant, and a stipulation of facts was prepared and filed in this court which provides in the concluding paragraphs thereof as follows:

“Fourth: That the net balance due to the claimant from the respondent herein on account of the amount of the contract and extras described in the complaint herein, after deducting all credits for payments made by the respondent to the claimant thereon, and all credits for omissions from the work originally contracted for, is the sum of Thirty Thousand Three Hundred Thirty-three Dollars and 92/100 Cents ($30,333.92).
“Fifth: That judgment may be entered herein for the claimant and against the respondent for said sum of Thirty Thousand Three Hundred Thirty-three Dollars and 92/100 Cents ($30,333.92).”

Such stipulation was executed on behalf of the respondent by the Attorney General and approved by the Supervising Architect of the Department of Public Works and Buildings.

It appearing to the court that such stipulation fairly sets forth the results which would have been developed by the taking of evidence in the case; that the same is just and fair; and that an award in the amount set forth therein, to-wit, $30,333.92, is recommended by the Department of Public Works and Buildings of the respondent,

Therefore, it is Hereby Ordered that an award be and the same is hereby made and entered in favor of the claimant for said sum of Thirty Thousand Three Hundred Thirty-three Dollars and Ninety-two Cents ($30,333.92).


text:
    (No. 2395
    Guaranty Trust Company of New York, a Corporation, Claimant, vs. State of Illinois, Respondent.
    Opinion filed December 11, 1934.

    Chapman & Cutler, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

This is a claim for a tax refund. The claimant, Guaranty Trust Company of New York, is a corporation organized and existing under the laws of that State with capital stock outstanding in the amount of $90,000,000.00 and was in the year 1932 duly qualified to do business in the State of Illinois. It filed its annual report in 1932 with the Secretary of State and a franchise tax based on said report, which was the •mrmm-nTn tax assessable against a corporation having a capital stock of the amount stated, was assessed against it in the sum of $1,000.00. The assessment was claimed to he invalid as being in contravention of constitutional provisions, including Section 1 of Article 14 of the Constitution of the United States, commonly known as the “Due Process Clause.” Claimant paid the amount of tax under protest to avoid penalties which it was instructed would be imposed if it failed to pay, including its right to do business in the State of Illinois, forfeiture of which right was threatened unless payment was made.

Within thirty days after making the payment, claimant, in compliance with provisions of the Statutes of Illinois, filed its bill in the Circuit Court of Sangamon County to enjoin the Secretary of State of Illinois from paying into the State treasury the amount thus delivered to him under protest. A temporary injunction was issued, restraining the Secretary of State from paying the money to the State Treasurer and the writ was served upon the then Secretary of State. The latter disregarded the injunction and delivered the money to the State Treasurer.

Thereafter the Supreme Court of Illinois in the case of St. Louis cmd Southwestern Railway Company vs. Stratton, 353 Ill. 273 held — the Statute under which the assessment was made, and any assessments to be made thereon to be invalid because it was in violation of the due process and Interstate Commerce Clause of the U. S. Constitution.

Claimant thereafter on May 15, 1934, served notice on the Attorney General of the State of Illinois that it would apply to the court for the entry of a decree in its favor in the proceeding then pending in the Circuit Court of Sangamon County, and thereupon learned for the first time that the payment which it had enjoined had been disregarded by the former Secretary of State, and thereupon claimant filed its complaint in this court. The proper amount of tax that should have been paid by claimant, in view of the unconstitutionality of the Act in question, for its annual franchise tax for the year 1932 based upon its business done from property located within this State, was $10.00, making the amount of claim herein $990.00. Claimant contends also for interest upon said money. The Attorney General has not interposed active objection to the allowance of the sum of $990.00 but takes issue with the claimant in its request for interest.

The case of St. Louis and Southwestern Railway vs. Stratton, supra, held: that the State could exact from a foreign corporation for an initial fee such amount as it deemed advisable, but that when the corporation had once been admitted to do business in this State, then the latter could not impose an unreasonable burden upon the corporation, and the franchise tax exacted in such cases must be reasonable and based on the amount of property held in this State and the business transacted in this State.

Claimant observed all the necessary precautions to protect its rights to a refund. The money was paid under protest. Suit to restrain the forwarding of such money by the Secretary of State to the State Treasurer was filed within thirty days and a temporary injunction was issued. Claimant is entitled to an award.

In its request for interest claimant states that it has been unable to find any authorities in Illinois which touch upon the question of the court’s power to allow interest on its award against the State. In the citation of Editor’s views from 59 Corpus Juris, Page 297, Section 455, claimant states:

“Where the Legislature has expressly authorized a suit against the State and empowered the court to render an award and judgment, as right and justice may require, the court may include interest in the judgment.”

It has not been the practice of this court to allow interest on awards, but even under a liberal reading of the above editorial comment, we do not believe an award of interest would be justified in this case. Interest would only be justified if there had been an unreasonable and vexatious delay in the payment of this claim. The payment of the tax in question was originally made because of a then existing Statute. The claim for refund was filed on June 7, 1934, and an award is being granted thereon in apt time to permit an appropriation by the next succeeding session of the Legislature held thereafter. Claim for interest is denied and an award is made in favor of claimant for the principal sum of $990.00.


author: Me. Justice Tantis

text:
    (No. 2407
    Dr. Charles J. Hutton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    Wm. M. S cantan, for claimant.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Me. Justice Tantis

delivered the opinion of the court:

Claimant seeks settlement for medical services furnished to William L. Dingier of Peru, Illinois.

Four other claims g’rowing out of the same circumstances have been filed, i. e.: Dr. George E. Kirby vs. State, No. 2408; Dr. E. C. Gaffney vs. State, No. 2409; Dr. N. A. Balding vs. State, No. 2410 and Evangelical Deaconess Hospital vs. State, No. 2411, and to save repetition, reference will be made in the opinions of those cases to this case.

William L. Dingier was employed by the State of Illinois as an automobile investigator and on October 17, 1931, in traveling the territory in which his employment necessitated his going, he was riding a motorcycle with a side-car attached enroute from Peru, Illinois, on S. B. I. Route No. 4. When about two miles southwest of Atlanta, Illinois, he collided with a horse-drawn hay rack wagon while attempting to avoid a collision with an aproaching motor vehicle. As a result of said accident Dingier was thrown onto the concrete pavement and suffered a basal, frontal and two bilateral fractures of the skull with serious injuries to other parts of the body.

Claimant was called to the scene of the accident, rendered first aid; caused Dingier to be removed to claimant’s office in Atlanta, Illinois; and from there had him removed by ambulance to the Evangelical Deaconess Hospital, at Lincoln, lilinois, thirteen miles distant from Atlanta, that being the nearest hospital having suitable equipment and facilities; that upon arrival at the hospital Doctors E. C. Gaffney and N. A. Balding were called in consultation and thereafter Dr. George E. Kirby was also called into the consultation. The patient, William L. Dingier, remained unconscious from the time of the accident on October 17, 1931, until Tuesday, October 20, 1931, and claimant, Dr. Hutton, made trips from Atlanta to the hospital on the 18th, 19th, 20th, 22nd and 25th days of October, 1931. The patient remained at the hospital from October 17, 1931, to November 2, 1931, a period of 2 2/7 weeks and during said period of time the hospital provided him with a day nurse for twelve days and a night nurse for eight days, various X-rays were taken and medical dressings and medicines were furnished by the hospital.

Notice of the accident was telephoned to the office of the Secretary of State at Springfield and that office ordered the best medical care and attention possible rendered to Dingier. This was confirmed by a personal representative from the office of the Chief of the Automobile Investigators and the several physicians and hospital were authorized to render all services necessary and that the bills for same should be forwarded to the Automobile Department of the Secretary of State’s office for payment. The instructions were ratified on other succeeding days. The bills were later submitted to the Secretary of State’s office, and payment declined for the reason that that office had no appropriation from which payment could be made.

Claimant, Dr. Charles J. Hutton’s Bill of Particulars requests payment as follows:

Oct. 17, 1931 — Office visit, Lincoln Hospital call and X-ray.. $25.00
Five visits to Hospital at Lincoln (13 mi. from Atlanta at $12.00 each) ........................................... 60.00
Total ............................................... $85.00

Claims have also been filed by the other three doctors and the hospital as follows:

Dr. E. C. Gaffney, Lincoln, Ill. (Case No. 2409.)
Oct. 17, 1931 — Consultation on skull fractures.............. $10.00
24 visits to hospital, at $2.50 each......................... 60.00
Total $70.00
Dr. George E. Kirby, Spring Valley, Ill. (Case No. 2408.)
Oct. 18, 1931 — Consultation at Lincoln, Ill................. $35.00
Nov. 4th, 5th and 6th, 1931 — 3 house calls at Peru, Ill. (4%
mi. from Spring Valley, at $3.00 each)................... 9.00
Nov. 16, 1931 — Office call and X-Ray....................... 6.00
Dec. 3, 1931 — Office call .................................. 1.50
Total ................1.............................. $51.50
Dr. N. A. Balding, Lincoln, Ill. (Case No. 2410.)
Oct. 17, 1931 — Consultation ............................... $10.00
14 visits to Hospital at Lincoln at $2.50 each.............. 35.00
Total ............................................... $45.00
Evangelical Deaconess Hospital, Lincoln, Ill. (Case No. 2411.)
Oct. 17, 1931 to Nov. 2, 1931 — Room and board, 2 2/7 weeks,
at $24.00 per week...................................... $54.86
Day nurse, 12 days at $5.00 per day........................ 60.00
Night nurse, 8 nights at $5.00 per night................... 40.00
Dressings and medicine................................... .86
Head X-Ray ............................................. 10.00
Laboratory .............................................. 2.00
Two meals .............................................. .70
Telephone service ........................................ 4.25
Total ................................................ $172.67

The accident suffered hy William. L. Dingier occurred while he was an employee of the State and the injury arose out of and in the course of his employment. There seems to be no question but what such employment was extra hazardous and within the Workmen’s Compensation Act. The several claimants rendered the services stated under proper circumstances and are entitled to payment therefor.

“8 (A) The employer shall provide the necessary first aid, medical and surgical services and all necessary medical, surgical and hospital services thereafter. Sec. 8, Workmen’s Compensation Act.”

Claimants in each case also ask that they he allowed interest on their claims at the rate of five per cent (5%) per annum from the 25th day of October, 1931.

There is no showing of any unreasonable or vexatious delay in payment.

“Creditors shall be allowed to receive interest at five per cent (5%) * * * on money withheld by an unreasonable and vexatious delay of payment. Sec. 2, Chap. 74 Ill. Rev. Statutes."

No allowance for interest is warranted in either of the cases herein considered far the reason that such claims were filed on June 21, A. D. 1934, and are being disposed of in apt time for an appropriation by the first succeeding Legislature thereafter.

The prevailing charge for local physicians’ calls is apparently $2.50 each. An additional charge of fifty cents per call, or a total of $3.00 per visit was charged by Dr. Kirby in going from Spring Valley, to Peru, Illinois. The record discloses that Dr. Hutton traveled thirteen miles from Atlanta to Lincoln, Illinois on each of his several visits, for each of which an allowance of $9.00 is made.

An award is, therefore, allowed in this case, i. e.., Dr. Charles J. Hutton vs. State, No. 2407 in the sum of $70.00.


text:
    (No. 2408
    Dr. George E. Kirby, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    William M. Scanlan, for claimant.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

The facts in the case of Dr. George E. Kirby are fully set forth in the case of Dr. Charles J. Hutton, No. 2407, decided at the present term of this court and the reasons for the allowance of an award are therein stated. To save repetition reference is, therefore, made to that cause.

An award is herein allowed in favor of Dr. George E. Kirby in the sum of $51.50.


author:
Mr. Chief Justice Hollerich
      Per Curiam:

text:
    (No. 1970
    Elmer Nafziger, Receiver of Chicago, Springfield & St. Louis Railway Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

      Rehearing denied January 9, 1935.

    Stevens & Herndon, for Claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant seeks' to recover the sum of $1,995.18 which he claims to have expended in and about the repairing arid rebuilding of certain railway cars, the repairing of a certain sidetrack, and the derailing of certain cars, all of which he claims was made necessary by and as the result of the carelessness and negligence of the servants and agents of the respondent.

The evidence offered on behalf of the claimant shows that prior to and on the 13th day of August, A. D. 1931 the claimant was in possession of and operating a certain railway between Springfield and Lock Haven in this State, and particularly between the city of Waverly in Morgan County and the city of Modesto; that in the Spring of 1931, a sidetrack was constructed about one-half mile south of said city of Waverly to accommodate the O’Connor Construction Co., which company was then engaged in constructing hard roads for the State; that such company completed its work in July, 1931; that thereafter said sidetrack was assigned to the State Highway Department and was used by such department in connection with the unloading of material used in the construction of S. B. I. Route 111 south of Waverly; that said sidetrack was approximately 1,200 feet in length, and was constructed with a descending grade from the north to the south; that it was on the east side of the main line, and connected with such main line at the north end thereof, the south end being a stub end; that the Highway Department had a cement house and two pits or bins alongside of such sidetrack, for unloading purposes; that for several days prior to August 13,1931 the State Highway Department was engaged in the construction of S. B. I. Route No. Ill between Modesto and Waverly; that on the 12th day of August, A. D. 1931, about five-thirty o’clock P. M., the employees of the claimant placed fourteen cars loaded with road material for said State Highway Department on said sidetrack; that all of such cars were coupled together when left on said sidetrack; that blocks were placed under the wheels of several of such cars; that hand brakes were set on each of the three cars at the south end of said string of fourteen cars, and the air brakes set on all of said cars; that some time during the night of August 12th or the morning of August 13th, said ears started in motion and ran down said sidetrack to the south end thereof, thereby derailing and damaging three of said cars.

The evidence is not clear on the question as to whether or not the employees of the respondent moved one or more of said cars on the night of August 12th, after they had first been spotted, nor does the evidence satisfactorily disclose what caused the cars to start in motion.

The respondent contends that the air gradually escaped from the air brakes, thereby rendering them ineffective; that on account of the steep grade of the sidetrack, the hand brakes and blocks were insufficient to hold the cars after the air brakes became ineffective; and the cars were started in motion by reason of such facts.

It also appears from the evidence that on the morning of August 13th the claimant pulled eleven of said cars back to the north end of the track, leaving the three cars which previously had been derailed, at the south end of the track; that three of such eleven cars contained cement and the three cars of cement were spotted near the north end of the sidetrack ; that the other cars contained sand and gravel and were spotted at the pits about three or four car-lengths south of the cement cars; that hand brakes were set on said eleven cars after they had been returned to the north end of the track and blocks placed under the wheels of some of the cars; that thereafter some of the employees of the respondent attempted to move said cement cars to the south for convenience in unloading, and in so doing released the brakes on said cars and kicked the blocks from under the wheels, whereby said cars were started in motion; that after said cars were started, it became impossible to stop them and they again ran down the track and collided with the aforementioned sand and gravel cars, and the entire string of cars ran to the end of the sidetrack, where they collided with the three cars which had been derailed the previous evening, thereby causing considerable additional damage.

It is stipulated that the cost of labor and materials for making the repairs made necessary by the two accidents in question was $1,995.18.

The Attorney General contends: first, that the damages resulting to the claimant were not the result of any carelessness or negligence on the part of the servants or agents of the respondent; second, that the doctrine of respondeat superior does not apply to the State under the facts in this case, and that there is no liability on the part of the State even though the damages in question were the result of the carelessness and negligence of its servants and agents.

In the view we take of the case, it is unnecessary to consider the question as to whether the damages in question resulted from carelessness or negligence on the part of the servants or agents of the State.

This court has held in numerous cases .that in the construction and maintenance of its S. B. I. roads, the State acts in a governmental capacity, and therefore is not liable for the negligence of its servants and agents in connection therewith, in the absence of a Statute making it so liable. Chumbler vs. State, 6 C. C. R. 138; Braun, vs. State, 6 C. C. R. 104; Bucholz vs. State, 7 C. C. R. 241. This has been the recognized rule of law in this State for many years. Kinnare vs. City of Chicago, 171 Ill. 332; Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.

Claimant contends that the respondent in doing the work in question acted in the same capacity as a private contractor and not in a governmental capacity, and was therefore liable for the acts of its servants and agents in connection therewith. However, claimant cites no authority in support of its contention, and we have been unable to find any authority therefor in this State. Our courts have held that, among others, the following activities of municipal or quasi-municipal corporations involve governmental functions, to-wit:

The construction of a school house, (Kinnare vs. City of Chicago, 171 Ill. 332); maintaining a hospital, either as a charity or in the exercise of police power, (Tollefson vs. City of Ottawa, 228 Ill. 134); the management and operation of the State Fair, (Minear vs. State Board of Agriculture, 259 Ill. 549); maintaining and operating a park, (Stein vs. West Chicago Park Commissioners, 247 Ill. App. 479); the maintenance and operation of a swimming pool, including the conveyance of children to and from the same, (Hendricks vs. Urbana Park District, 265 Ill. App. 102; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234).

Such conclusions were reached notwithstanding the fact that in the case involving the maintenance of a swimming pool, (Stein vs. West Chicago Park Commissioners) a fee was charged for its use; and in the case involving the maintenance of the State Fair Grounds (Minear vs. State Board of Agriculture), an admission fee was charged.

In all or practically all of the cases above cited the question involved was whether the defendant was acting in a governmental capacity or a proprietary capacity, and the question as to what is necessary to constitute a governmental function, and the distinction between governmental functions and proprietary functions were considered and discussed. Upon consideration of the cases above cited, and other cases bearing on the question, we have no hesitancy in holding that in the construction of its hard-surfaced roads the respondent is engaged in a governmental function.

In the absence of a Statute making the State liable for the negligence of its servants and agents in connection with governmental functions, this court has no authority to allow an award against the respondent for such negligence.

It is Therefore Ordered that award be denied and the case dismissed.

Opinion on Petition for Rehearing.

Per Curiam:

On petition for rehearing the claimant contends that in the construction of its hard-surfaced roads the State is not engaged in a governmental function, and as authority for its contention cites the case of Hanrahan vs. City of Chicago, 289 Ill. 400; City of Chicago vs. Seben, 165 Ill. 371; and McQuillin on Municipal Corporations, 2d Edition, Volume 6, pages 798-801; also Byrne vs. Chicago General Railway Co., 169 Ill. 75; and City of Chicago vs. Tribune Company, 307 Ill. 595.

Neither of the two cases last cited involve the question which is involved in this case, and neither of such cases is authority for the proposition contended for by claimant.

The case of Hanrahan vs. City of Chicago and the case of City of Chicago vs. Seben involve the question of the liability of a city for personal injuries sustained by reason of the negligence of such city in the maintenance of its public streets. There is no question but what a city is liable for the negligence of its servants and agents in the maintenance of its public streets, but the law making it so liable is regarded as an exception to the general rule, and is based upon the theory that cities are organized at the instance and request of their own citizens and for considerations which affect, more or less, their private interests; they are regarded as corporations created for their own benefit, and therefore as to the maintenance of the streets within their corporate limits, they are considered as acting in a municipal or ministerial and not in a governmental capacity. Kinnare vs. City of Chicago, 171 Ill. 332; Johnson vs. City of Chicago, 258 Ill. 494; Roumbos vs. City of Chicago, 332 Ill. 70.

The case of City of Chicago vs. Seben, cited by claimant, was analyzed and considered by the Supreme Court in the case of Kinnare vs. City of Chicago, 171 Ill. 332, in which last mentioned case the court distinguished between the duties thrust upon a city by the General Assembly through the General Corporation Act, as in the Seben case, and the duties performed by the City as an agency of the State in the general administration of State government, as in the Kinnare case, in which case it was held that the City was not liable for the negligence of its servants and agents in the construction of a schoolhouse.

In the Ehnnare case, the Supreme Court quotes with approval from Dillon on Municipal Corporations as follows:

“The general doctrine of the American courts, as we shall presently see, in respect of municipal corporations proper, has been to hold them civilly liable for injuries from defective streets, although the ground for the distinction — which gives a cause of action if the injury happens within the limits of the municipality having control of the streets therein and denies it if it happens within the limits of a township or county having like control over highways and adequate means of discharging its public duties in respect thereto — is not as satisfactory to the mind as could be desired.”

In the case of Roumbos vs. City of Chicago, 332 Ill. 70, the court, on page 77, said:

“Cities become incorporated by the voluntary act of their inhabitants, for the benefit of the territory incorporated and the people residing within the corporation. By their incorporation they receive certain powers and privileges and assume certain duties and obligations. So far as they are exercising these privileges and duties in the interest of the general public (the people of the State at large) they represent the sovereignty of the State and are not liable for the negligence of their officers and agents in the performance of such duties, but so far as their acts concern merely the interest of the particular locality and its inhabitants they are responsible, the same as private corporations.”

It is well settled in this State that the law which makes a city liable for the negligence of its servants and agents in the construction or maintenance of its streets, does not apply to townships, or counties, nor by analogy to the State.

Some of the cases which hold that the construction and maintenance of roads and bridges are governmental functions for which there is no liability on the part of a county or township in the absence of a Statute making it liable, are the following: Hedges vs. County of Madison, 1 Gilman 566; Town of Waltham vs. Kemper, 55 Ill. 346; Bussell vs. Town of Steuben, 57 Ill. 35; White vs. County of Bond, 58 Ill. 297; Cooney vs. Town of Hartland, 95 Ill. 516; Nagle vs. Wakey, 161 Ill. 387.

Under the well established law of this State, there can be no question but what the State in the construction and maintenance of its hard-surfaced roads is acting in a governmental capacity.

The petition for rehearing is therefore denied.


text:
    (No. 2317
    National Lock Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    Hall & Dusher, for claimant.
    Otto Keener, Attorney General; Josn Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

This claim was filed to recover the sum of $550.98 under the Motor Fuel Tax Law, claimed as a refund on gasoline used in the Plating Department of claimant’s factory. The claim was filed with the Department of Finance on December 11, 1933 and payment of such refund was declined by that department under the statement, “That it was without authority to accept claims for refund on gasoline which had been purchased more than six months prior to the date of the filing of the claim.”

The claim consists of three items:

Tax paid on 6,555 gallons of gasoline purchased on February
12, 1932 ............................................... $196.65
Tax paid on 5,922 gallons of gasoline purchased on May 26,
1933 ................................................... 177.66
Tax paid on 5,889 gallons of gasoline purchased on January 9, 1933 ................................................ 176.67
Total tax ............................................ $550.98

Claimant alleges that it requires from three to five months to use a tank car of gasoline; that it was the duty of claimant’s purchasing agent to file a claim for tax refund with the Department of Finance; that C. G. Strote was employed as such purchasing agent and that through Ms negligence, the claim was not filed. Claimant further states that the Purchasing Agent, Strote, was thereafter transferred because of general negligence and other unsatisfactory conduct.

The proof supports these statements: The Attorney General has filed a motion to dismiss the claim for the reason it does not state any cause against the State for which an award may be allowed, due to the fact that no claim for such refund was filed with the Finance Department within six months after the date on which the motor fuel was lost or used by the claimant. Claimant in its Reply Brief contends that the case at bar (Page 2 Reply Brief) is similar to the cases cited by the respondent, where a franchise tax is paid through “a mutual mistake of fact”; claimant contends that the State has agreed it would make refunds when the gasoline for which a tax has been paid has not been used for motor vehicles on the highways and that the requirements that the claim for refund must be filed with the Department of Finance within six months after the date on which the motor fuel was used, is only an administrative convenience; that the right for a refund continues after the six months period •regardless of whether a claim is filed within that time, or whether claim is filed with the Finance Department, but that after such six months the Claims must be filed with the Court of Claims.

Comparison of the case at bar with those where a “mutual mistake of fact” has been made, is not good, for the reason that no mistake has been made by anyone in regard to assessment or payment of the tax in question, and the only mistake apparent is the misplaced confidence of claimants in their Purchasing Agent, Strote, and in his failure to apply for a refund within the period of limitation. He was an employee and agent of said claimants for whom they alone were responsible.

It is unfortunate that claimant must suffer loss through the acts of its agents, but in the absence of a legal claim to such refund, this court is without authority to allow same.

“The provision, of Paragraph 4, Section 6 of Court of Claims Act' with reference to ‘equity and good conscience’ defines the jurisdiction of the court and does not create a new liability against the State. The jurisdiction of the court is limited to claims under which the State would be liable in law or equity if it were suable. Where claimant fails to bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principals of ‘equity and good conscience’ to secure one.”

Crabtree vs. State, 7 C. C. R. 207.

“Whenever the amount of the franchise tax'is computed and collected by the Secretary of State in accordance with law, based on information submitted by the claimant, a claim for rebate of a part thereof alleged to have been excessive on account of error in the information furnished by the claimant, will be denied.”

Seiders Inc. vs. State, 7 C. C. R. 9.

“Taxes voluntarily paid cannot be recovered unless there is a statute authorizing such recovery.”

Wm. Wrigley Jr. Co. vs. State, 7 C. C. R. 163.

Richardson, etc. vs. Kinney, 337 Ill. 122.

M. & H. Clothing Co. vs. State, 7 C. C. R. 139.

Section 13 of the Motor Vehicle Act, specifically provides that claims for reimbursement must be filed not later than six months after the date on which the motor fuel was lost or used by the claimant; that the claim shall be made in accordance with certain forms prescribed by the Finance Department and that, that department may make suitable investigation as it deems necessary. Specific authority for refunds having been made by a specific Statute, and the method of obtaining such' refund having been specifically prescribed, the court is of the opinion that a failure to show compliance with those provisions is a bar to an award by this court.

It is apparent that no refund can be allowed as to two shipments, but as to the one purchased May 26,1933 an award is justified, as the claim has been filed within the time of limitation.

An award is therefore made in the sum of One Hundred Seventy-seven Dollars and Sixty-six Cents ($177.66).


text:
    (No. 2396
    Old Colony Trust Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    Chapman & Cutler, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

This case is similar to that of Guaranty Trust Company of N. Y. vs. State of Illinois No. 2395, in the Illinois Court of Claims, and is an application for a refund of franchise tax paid under protest, followed by a writ of injunction to enjoin the Secretary of State from paying such funds into the State Treasury. The then Secretary of State in disregard of said injunction paid the money to the State Treasurer, and on or about May 15, 1934 on motion of claimant, a decree was entered in the suit then pending in the Circuit Court of Sangamon County, finding that the assessment against claimant was invalid, declaring that the amount of franchise tax properly assessed against the claimant was $10.00, and directing that the present Secretary of State refunded to claimant the excess that had been improperly collected.

Claimant is a corporation originated and existing under the laws of Massachusetts with capital stock outstanding in the amount of $5,000,000.00 in 1932 and was then qualified to do business in the State of Illinois. It filed its annual report with the Secretary of State of Illinois and a franchise -tax based on said report, which was the minimum tax assessable against a corporation .with a capital stock of said amount, was assessed against it in the amount of $200.00.

Under the decision of the St. Louis and Southwestern Railway Company vs. Stratton, 353 Ill. 273 and the United States Pipe and Foundry Company vs. State, 353 Ill. 516, and under .the further findings of the Circuit Court of Sangamon County, claimant is clearly entitled to a refund.

As stated in the Guaranty Trust Company of N. Y. case No. 2395, the claim for interest thereon will be denied.

An award is granted in favor of claimant for the sum of $190.00.