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    Charles J. Ewerts, et al. v. State of Illinois.

      Opinion filed April 18, 1923.

    Abolition of Office — the power to abolish. In the absence of constitutional restraint the power that creates an office has the right to abolish it at pleasure.

      Same — right of incumbent to salary of office abolished. When an office is abolished the incumbent has no right to compensation for the unexpired term. The right to the salary for the remainder of the term is to be determined by the power abolishing the office.
    Court of Claims — duty of Court. The Legislature in creating the Court of Claims had in mind that it would be the duty of the Court to hear evidence and propositions of law upon all claims filed against the State, and pass judgment not alone upon the legal rights of claimant from the view point of equity and social justice in order that the court be placed in position to advise and recommend to the Legislature the merits or demerits of a claim.
    Dismissal of Claim — uthen claim will be dismissed. Where the Court is of the opinion that the claim is one more properly for the Legislature to determine it will dismiss the claim.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed by Charles J. Ewerts, to the September, A. D. 1922, term of this Court.

The claimant alleges that he is entitled to recover for services as a member of the State Board of Equalization from the first day of July, A. D. 1919, at which time the said board was abolished by the Legislature of this State until the 31st day of December, A. D. 1920.

It was further alleged by claimant that lie was elected to this position from his district on the 7th day of November, A. D. 1916, for a period of four years.

It is further, alleged that the General Assembly of the State of Illinois passed an Act entitled “An Act in Relation to the Assessment of Property 'for Taxation,” which said Act went into effect the first day of July, 1919.

By the force of this Act, a tax commission was created to perform the duties previously exercised and performed by the State Board of Equalization, thereby, by reason of such enactment the State Board of Equalization passed out of being.

The claimant further alleges that he was elected to this position and assumed his duties as a member of the State Board of Equalization as then provided by law for a period of four years.

The remuneration for this position was fixed by Statute at $1,000.00 per annum; therefore the claimant further declares that by reason of his position being abolished' on July 1st, 1919, that he was deprived of the salary from July 1st, 1919, to December 31st, 1930, a period of one year and six months for which time the claimant alleges salary would accrue to him, in the sum of $1,500.00.

The defendant by the Attorney General comes and files his brief and argument denying liability on the part of the defendant, the State of Illinois.

The matter of the claim of the said claimant together with the other members of the State Board of Equalization coming on to be heard and the Court after hearing evidence and the arguments of counsel finds that the State Board of Equalization was created by the Legislature of the State of Illinois and by virtue of such enactment, the claimant, as such member of the Board of Equalization entered upon the performance of his duties subject to the powers of the Legislature to change or abolish the law governing same and with the expectancy of receiving the emoluments attached.

It is the opinion of this Court that the Legislature in creating this Court had in mind as the purpose of this Court to hear evidence and propositions of law upon claims filed against the State and pass judgment not alone upon the legal rights of the claimant, but upon the rights of the claimant from the view point of equity and social justice and it is further the opinion of the Court that the intention of the Legislature in the creation of -the Court of Claims was to relieve the Legislature insofar as it might be necessary in the matter of hearing evidence and arguments of law and equity so that this Court might be in a position to advise and recommend to the Legislature as to the merits or demerits of a claim, thereby enabling the Legislature to pass equitably and justly upon all demands made upon the State.

It is, however, the opinion of this Court that in the case at bar the Legislature is in a better position to know the legal rights and the equities of these claimants than is this Court because the Legislature created the Board of Equalization and abolished said body and created the new tax commission and in creating the new law and in abolishing the old, the. Legislature was fully aware of the advantages to the people and taxpayers of Illinois in the creation of this new law and the disadvantages if any in abolishing the old law, and it naturally follows that the Legislature weighed the rights, advantages and the possibilities that would come to the people of the State of Illinois in abolishing the State Board of Equalization and creating the new body; therefore, it is the opinion of this Court that the Legislature is fully advised in the premises and is in a position to know that action which would best serve the interest of all concerned.

It has in mind and has knowledge' of all the facts and circumstances surrounding the law that gave life to and caused the State Board of Equalization to function and likewise had full knowledge of the circumstances that lead to having the Equalization Board abolished.

The Legislature had in mind no doubt, as is stated before, the advantages that would accrue in the State in abolishing this body and reinstating the nerv commission and also had in mind the rights -and equities of the members of the Board of Equalization ayIio rrere deprived of their offices and compensation connected thereAvith Arhen the State Board of Equalization Aras put out of being.

Therefore, it is considered by this Court that no recommendation be made as to this claim or to any other claim of like character, leaving the adjustment of these claims to the authority that created them and abolished them and the body rrlio is as Avell advised or better than this Court to pass judgment on the equitable demands of these claimants. That body is the Legislature of the State of Illinois and to rvhich body this Court makes no recommendation; accordingly, this claim is dismissed from further consideration of this Court.


source: Caselaw Access Project

license: Public Domain

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    Fred E. Chidester v. State of Illinois.

      Opinion filed April 18, 1923.

    Governmental Function — State not Halle. The State in conducting the Illinois Western Hospital for the Insane exercises a governmental function and is not liable to its employees for injuries sustained by them in the discharge of their duty.
    Workman's Compensation Act — not applicalle to State. Practice. The Workman’s Compensation Act is not applicable to the State for injuries sustained by its employees but it is the practice of the Court where claims of employees for injuries sustained while in the employment of the State, to follow that statute in order that equity and justice be done.
    Social Justice and BQuiTY-r^wfte» claim will le allowed. Where the facts and circumstances justify, and the State makes no objections to the claim, the Court will enter an award in favor of the claimant for the injuries sustained by him in the course of his employment.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed by Fred E. Chidester for damages, for injuries sustained in March, 1921, while in the employment of the State of Illinois.

It appears from the affidavit filed in this case that on the 9th day of March, A. D. 1921, the claimant was employed at the Illinois Western Hospital for the Insane, commonly called the Watertown State Hospital, situated in the City of East Moline, Bock Island County, Illinois; that while thus employed at said hospital the claimant received an injury which arose out of and in the course of his employment in said hospital, which was then and there owned, operated and controlled by the State of Illinois; that claimant was employed at said hospital as industrial foreman in the Industrial building, it being one of claimant’s duties to do odd jobs of work around said institution to do carpenter work and working on a joiner in the carpenter shop in said Industrial building and while thus engaged under the orders and superintendence of Dr. M. C. Hawley the managing officer of said hospital, the claimant received an injury caused by the blades or knives of the said joiner cutting and tearing the flesh and bone from the first, second and third fingers of the right hand, necessitating the amputation of the first and second phalanges of all three fingers; that the claimant was employed at said Watertown State Hospital for a period of more than five years; prior to said injury; that he received as wages and salary during the year prior to aforesaid injury, the sum of one thousand three hundred and eighty dollars ($1,308.00) per annum; that claimant is a married man and the father of five minor children, three of whom are below the age of sixteen years, and reside with said claimant in East ILoline; that all medical services were furnished by the State and also pay for three weeks temporary total disability; that by virtue of the injuries aforementioned, claimant became partially incapacitated permanently and by reason thereof, he has suffered damages to the amount and extent of one thousand two hundred and seventy-five dollars.

Claimant filed his petition with the Industrial Commission of the State of Illinois, for compensation for said injuries and said Industrial Commission, after hearing the evidence submitted before it, made an award to this claimant in the sum of fifteen dollars ($15.00) per week for eighty-five weeks, totaling the sum of one thousand two hundred and seventy-five dollars ($1,375.00); that a lump sum settlement was approved by said Industrial Commission in the sum of one thousand two hundred and forty-four dollars and thirty-three cents ($1,344.33); that a copy of the settlement contract and the lump sum award are attached thereto; that afterwards the Director of Finance refused to pay said award or lump sum settlement on the advice of the Attorney Gfeneral because there was no valid appropriation out of which to pay said award and the proper adjustment of claim for a compensation for injuries received by State employees was through the Court of Claims.

The Attorney General has filed a demurrer to the petition herein filed and as a matter of law said demurrer will be sustained.

The State of Illinois is not liable, in the absence of Statute for the torts of its officers, agents, inmates or employees.

The Workman’s Compensation Law is not applicable to the State of Illinois for injuries sustained by its employees, but it has been the practice" of this Court, where claims of employees for injuries sustained while in the employment of the State, to follow said Statute in order that equity and justice be done to injured employees.

The facts in this case are not disputed and the Attorney General waives proof thereof, and makes no objection to a recommendation by this Court pursuant to its policies in cases of this nature.

We are of the opinion that the claimant is entitled to compensation for injuries sustained as aforesaid and recommend that the sum of Twelve hundred forty-four 33/100 ($1,344.33) dollars be awarded to said- claimant in full satisfaction of all claims against the State of Illinois for injuries sustained by him.


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    Gregory T. Van Meter, Administrator of the Estate of Kasper Hildebrandt, Deceased v. State of Illinois.

      Opinion filed April 18, 1923.

    Governmental Function — State not liable for injuries sustained by an inmate of its institution. The State in conducting the Illinois School for the Blind exercises a governmental function and is not liable for injuries sustained by an inmate thereof.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed by the administrator oí the estate of Kasper Hildebrandt for compensation for the death of claimant’s intestate.

It appears from the evidence that the decedent was a boy a little over twelve years old; that on the 9th day of January. 1920, he was placed in the institution for the blind at Jacksonville, by his father, Kasper Hildebrandt, of Morton Grove, Illinois. It appears from the evidence that the boy had some vision, such as "eye shadows.” The managing officer of the institution testifies that “he had some vision.” It further appears from the evidence that the boy’s ward ivas on the third floor at the end of a wide hall. On that floor there are two windows separated merely by a wide casing, which windows are directly above the entrance to the building, about 28 feet above the cement walk; that the windows are about 28 inches from the floor and the bottom sill is about 20 inches deep.

On the 12th day of January, 1920, three days after the boy was admitted, he was found lying on the cement walk under the windows, dead from concussion of the brain. One or both of the windows were open. Ho one remembers whether the window had been raised for ventilation as was sometimes done, and it is possible that the boy himself raised the window though the window was somewhat heavy.

The defendant filed a demurrer to the said claim and setting forth as special cause for demurrer, the State of Illinois by its Attorney General shows unto the Court:

First — That the doctrine of respondeat superior is not applicable to the State;

Second — That in the absence of Statute, the State is not liable for the torts of its officers, agents inmates or employees;

Third — That the State in conducting the Illinois School for the Blind at Jacksonville, exercises a governmental function and is not liable for the injuries to the inmates thereof.

It is the opinion of the Court that there is no legal liability on the part of the defendant, the State of Illinois, in this case. Therefore, the demurrer is sustained.

It is the opinion of this Court that while this is a case that is to be deplored and that natural sympathy would go out to the parents of the child in question, yet we do not believe that where a case of this kind showing a question as to an equitable liability that any allowance should be made against the people of the State of Illinois. An action of this kind might have occurred in a well regulated home and we do not by this action, intend to relieve the officials or those in authority in our State institutions of the exercise of the greatest care consistent with the plan of their institutions.

It is therefore considered by the Court that no allowance be made in this case.


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    Louis Dell Bowker, a Minor, by His Next Friend, N. D. Bowker v. State of Illinois.

      Opinion filed April 18, 1923.

    Military Service — token claimant entitled to recover for injury sustained. Claimant a first class private in Battery B, 123rd Field Artillery, 155 111. National Guard, under order from his superior officer, was injured while obeying orders in loading a heavy gun onto a freight car. Held, he is entitled to recover under Section II, of Article 16, Military <& Naval Code of Illinois. (Hurd’s Rev. Statutes of Illinois, 1919.)
    Edward J. Brundage, Attorney General, for State.
   Louis Dell Bowker, a minor, by his next friend, N. D. Bowker, filed his claim the 9th day of November A. D. 1922, with Louis L. Emmerson, Secretary of State and ex-officio clerk of the Court of Claims.

Claimant states that he is a minor under twenty-one years of age; that during the month of July A. D. 1922, and for a long time prior thereto he was a first class private in Battery B, 123rd Field Artillery, 155 M. M. H. Illinois National Guard; that on or about July 26th, A. D. 1922, the claimant was employed in the military service of the State of Illinois; that Bay Nevius, Captain of the Combat Train was in command of a squad of men, members of 123rd Field Artillery, of which this claimant was a member; that the battery of which claimant was a member, was engaged in loading guns and supplies preparatory to moving to Camp Custer; that the commanding officer, Captain Bay Nevius ordered the claimant to assist in loading a heavy gun from the freight platform of the C., B. & Q. freight house in the City of 3Ion-mouth, Illinois, onto a freight car; that claimant obeyed the orders of Captain Nevius and assisted in pushing said gun on said car; that claimant went, with other members of the battery, between the front and rear wheels of said gun, took hold of said gun and while pushing the same, and while leaning over forward the wheel of the rear part of the gun carriage struck the heel of claimant’s right foot, crushing the bones, ligaments and tearing the flesh of said right foot and claimant was thereby and then and there greatly bruised, hurt and wounded.

The testimony of one of the attending physicians, Dr. J. R. Ebersole, is that, the injury to claimant occurred on July 27, 1922, that he was the first medical man to treat the injury; that the claimant was brought to his office by several of claimant’s comrades ten minutes or less after the injury; Dr. Ebersole further testifies that he found claimant’s right foot from the instep forward very much bruised, the skin and tissues broken, and the foot was swelling very rapidly and bleeding some; that on x-ray examination he found the second joint of the big toe fractured and part of the condyle; the second toe was also fractured and some dislocation of second joint of the second and third toes, the ligaments in the joint torn, big toe nail mashed and practically torn off; claimant was then suffering very much pain as he did for several days, that he assisted in taking x-ray pictures of the foot, treated the injury and dressed same; that claimant was confined to his bed for about a week and about two weeks after the injury he walked with the aid of crutches for a month or six weeks; that he, Dr. Ebersole examined the injured foot to-day (the day the testimony was taken); that the injured foot is of rather purplish color, somewhat swollen, circulation still impaired; that claimant suffers great pain when moving the toes of the injured foot; that he has noticed the claimant walking several times recently; that he would state, that, if claimant uses his foot in any usual manual labor which required ordinary amount of walking or being on his feet he couldn’t do it without considerable pain; that in the opinion of the doctor one-third of the efficiency of claimant’s foot is destroyed and that it may be several years before claimant’s foot will recover its efficiency, and would, very probable never be normal; that claimant will never have the normal use of his foot. The evidence of Dr. Glenn Ebersole is substantially the same as that of Dr. J. R. Ebersole.

The evidence shows that the claimant is a young man of athletic type, having engaged somewhat in athletics, that he is industrious, sober and worthy; that he has employed his time during the summer months, when he was not attending school, in working at odd jobs. That since the accident that befell him he has been attending college, preparing himself for a vocation he can follow in his crippled condition.

There is no dispute about the facts, and the Attorney General admits that under the Military and Naval Code of the State of Illinois, rhe claimant is entitled to an award.

It lias been decided by the Commission of Claims of the State of Illinois, in the ease of O'Donnell v. The State of Illinois, page 255 of the Court of Claims reports, that the Commission of Claims can allow claims against the State of Illinois only in cases whereby express statutory provision the Legislature has created a liability on the part of the State for the acts of its agents or rather waived the exemption of the State from such liabilities and to sustain a recovery, it must come within the provisions of Section 4, Article 9, of the Military Code.” This Court has so ruled in the following cases:

Phillip R. Crippen v. State of Illinois, C. C. Reports, page 45.

Edward J. Lebeau v. State of Illinois, C. C. Reports, page 69.

Robert L. Mundelius v. State of Illinois, C. C. Reports, page 106.

Franklin A. Denison v. State of Illinois, C. C. Reports, page 155.

The Illinois Revised Statute (Cahill) 1921, Chapter 129, Paragraph 143 of Article 16, of the Military Code of Illinois, reads as follows :

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

This is a case that comes clearly within the jurisdiction and duties of this Court and in consideration of the foregoing section of the statute we award the claimant the sum of two thousand five hundred dollars ($2,500.00) in full settlement and compensation for injuries and expenses incident thereto.


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    George Sallade v. State of Illinois.

      Opinion filed April 18, 1923.

    Respondeat Superior — doctrine not applicable to State. The State is not liable for injuries sustained by its employees while in the performance of their duties. (Jasper v. State, 2 C. C. 323, followed.)
    Workman's Compensation Act — does not apply to State. The Workman’s Compensation Act does not apply to State employees.
    Social Justice and Equity — when claimant entitled to an aioard. While _ the State is not liable for the injuries sustained the Court as a matter of " social justice and equity recommends to the Legislature and appropriation to claimant.
    Edward J. Brundage, Attorney General, for State.
   The declaration in this case states that, the claimant, George Sal-lade was on the third day of June, 1923, engaged in constructing and repairing certain buildings on the State Fair Grounds near the city of Springfield, Illinois; and that he was engaged by the Department of Highways, a Division of the State of Illinois, by contract, express in its nature of hire in and about the aforesaid constructing and repairing of buildings carried on by the defendant, that he was in the employment of the defendant; and that he further avers that under the laws of the State of Illinois both the plaintiff and the defendant were working under and subject to a Statute known as the “Workmen’s Compensation Act”; and the plaintiff further avers, that while so employed on the day aforesaid, under the terms of his contract with the defendant, an accident arose out of the course of the defendant’s and plaintiff’s work by which accident the plaintiff received painful and lasting injuries and damages; and the plaintiff avers that the aforesaid accident occurred as follows, to-wit: The plaintiff was engaged in placing a board upon the top of the aeroplane hanger and while so engaged the plaintiff slipped and fell a distance of ten feet to the ground alighting upon his arm and shoulder and receiving the following injuries, to-wit: Two broken ribs and the arm and shoulder badly smashed and injured to the extent that said arm has lost seventy-five per cent of its use; the plaintiff further avers that the loss of the use to said arm and shoulder is fully seventy-five per cent; the plaintiff further avers and shows that medical aid and assistance were furnished by the defendant.

The plaintiff further avers that as a result of the aforesaid accident the plaintiff is entitled to receive, under the aforesaid Act and Statute, the sum of $14.00 per week for a period of 30 weeks for ternporary total incapacity from work and a further sum of $14.00 per week for a period of 200 weeks for the loss of the use of his arm and shoulder.

The evidence of the claimant shows that he was employed at the State Fair Grounds, being employed by the Highway Department and at the time of the injury he was standing on top of a concrete mixer holding a rafter for one of the employees; that claimant’s foot slipped and that he fell a distance of from 8 to 12 feet to the ground; there is nothing to show negligence on the part of the State, but rather on the part of the claimant.

Claimant was working for this State Department for the sum of $3.20 per day of 40c per hour for 8 hours work and during a portion of the time was allowed Saturday afternoons off. He had been employed prior to his connection with the State, as an engineer in the mines and had been receiving a fair salary for his services. He does not-state how he came to give up his position at the mines, but at any rate he was working as a common laborer at the time of his injury, and for wages much lower than he was receiving at his regular line of work. Claimant testifies that he was only in the hospital 10 clays; that the end of seven weeks after the injury he was back to the Fair Grounds and was employed as a Avatchman at a salary of 40c per hour, same as he had been receiving; that during the time he was injured up until he Avent back to Avork he received his salary Avith no deductions for time lost; that he lost no time on account of his injury and that shortly after claimant returned to his employment at the fair grounds for the State, he ceased Avorking for the State and accepted a position at the mines; that the mines were working six days ped Aveek and at least 75% of the time or better; that he, the claimant, has drawn the sum of, as he puts it “betAveen $150.00 and $175.00 as monthly wages.”

There is some evidence given by a fellow employee that the claimant Avas unable to use his right arm, Dr. Harmon also testified that the claimant Avas unable to use his arm; that he, the doctor tried to place claimant’s arms into various positions they should go, but couldn’t do this on account of the extreme.pain to claimant; that claimant could not reach his left shoulder nor extend his arm in a horizontal position.

The Attorney General has demurred to the declaration and as a matter of laAV this Court Avill sustain the demurrer.

The Workmen’s Compensation Act does not apply to State employees. The rule of respondeat superior, does not apply, this question having been decided by this Court in the case of Sadie Jasper, administratrix of the estate of John Jasper v. State of Illinois, Vol. 2 C. C. Reports, page 323 and in numerous other cases.

While as a matter of larv the State is not liable, still we are of the opinion, that as a matter of equity and social justice an aAvard should be made, Ave therefore recommend an award in the sum of one thousand five hundred dollars ($1,500.00).


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    H. S. Lamb v. State of Illinois.

      Opinion filed April IS, 1923.

    Governmental Function — whan State not UaMe. The State in conducting the Chester State Hospital at Menard, 111., exercises a governmental function and is not liable for injuries sustained by its employees while in the discharge of their duty.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for compensation for personal injuries sustained by the claimant by accident arising out of and in the course of his employment as guard at the Chester State Hospital, August 19, 1920.

The evidence discloses that the claimant, H. S. Lamb, while in the employment of the State as a guard at Chester State Hospital at Menard, Illinois, on the 20th day of August, A. 1). 1920, and while in line of duty and without fault on his part ivas Anciently kicked by a burly, strong inmate whom he and others Avere endeavoring to quiet Avhile unruly. The result of the kick Avas to cause the left testicle to perish or atrophy at least 50 per cent. The injury was very painful, laying claimant up at home for a month or more, before he could return to his employment. He has to Avear a suspensory all the time Avhen he Avorlcs.

The medical evidence shoAArs “the injury he received is permanent and that the gland is impaired to a very substantial extent in performing its functions; that the result of such an injury is liable to effect his mental condition, and cause him to be depressed all his life.” The claimant is 49 years old and is married and has five children. The State has demurred. Claimant has always since said injury remained on same salary as before injury.

The Court has repeatedly held that the State is not liable in such cases and so holds in this case. The demurrer is therefore sustained and case dismissed. But the Court in this class of cases has usually recommended that in the interest of social justice and equity that Legislature make an appropriation for the payment; and following that reasoning we recommend that the Legislature make an appropriation in the sum of three hundred ($300.00) dollars for claimant.


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    Arthur Taylor v. State of Illinois.

      Opinion filed April 18, 1923.

    Governmental Function — Lamb v. State, Supra, followed. This case is similar to that of Lamb v. State, Supra, and the decision of the Court there announced governs this claim.
    Edward J. Brundage, Attorney General, for State.
   This is a claim brought by claimant, Arthur L. Taylor, for compensation for injuries incurred while in line of duty as a guard in the employ of the defendant, Southern Illinois Penitentiary, December 19, 1921. '

The evidence discloses that while thus employed at said time and while searching for a convict who failed to appear and answer at roll call, it became necessary for him to and he did endeavor to climb upon the office of the stone department, and in so doing he took hold of the coping of said building and same being loose fell upon and against claimant’s leg, breaking it at and above and in the ankle joint, from which he suffered much pain and for a long period thereafter he-ivas confined to his bed and unable to labor.

That about August, 1922, after he had returned to his employment and while in the performance of his duties as such guard he was set upon by a convict in a riot, and while the convict grappled with claimant endeavoring to take claimant’s gun away from him, in the scuffle the claimant’s knee of the same limb was wrenched, causing claimant to become a permanent cripple. Claimant’s bills were all paid by the State and -the salary continued without interruption during his inability to perform manual labor. Claimant has four (4) children under sixteen years of age.

The evidence seems to bear out the fact of about 50% disability. If claimant were entitled to compensation under the Workmen’s Compensation Act, and had lost the entire use of one leg he would be entitled to about $2,975 in weekly installments. But he is still working for. the State on same salary, as before his injuries.

The State has demurred to the declaration, which is sustained. But in the interest of equity and social justice the Court recommends to the Legislature an appropriation in the sum of fifteen hundred ($1,500.00) dollars for claimant.


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    Owen P. Jackson v. State of Illinois.

      Opinion filed April 18, 1923.

    Governmental Function — Medcalf v. State, Supra-, followed. This case is similar to that of Carlson v. State, Supra, and the decision of the Court there announced governs this claim.

      Laches — claim should he filed within a reasonable time. Claimant should file his claim within a reasonable length of time in order to bring himself within the social justice and equity rule.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed by Owen P. Jackson who alleges that on the 21st day oí June, A. D. 1918, and for two months prior thereto he was employed as a guard or keeper at the Illinois State Penitentiary at Joliet; that on the evening oí said day an inmate of said penitentiary without provocation or warning attacked said claimant; that claimant was cut about the forehead, on the end oí his nose and on his left wrist and as a result, claimant suffered great pain and inconvenience and ivas permanently scarred as the result of said injuries and that his clothing was ruined and destroyed.

The defendant by its Attorney General comes and demurs. It is, of course, admitted that there is no legal liability on the part of the State and the only question opened for the consideration of this Court as to whether or not a recommendation should be made to the Legislature as a matter of equity and social justice.

It is the opinion .of this Court that a claim of this kind should he filed in a reasonable time and it is believed % the Court that this claim should have been filed at an earlier date, at least in time for consideration of this Court for recommendation at the 1921 session of the Legislature, and it is further the opinion of this Court that while it has been announced as the policy of this Court in these classes of cases that equity and social justice should be considered wherein there was no legal liability, yet it is also the duty of this Court to do justice to the people of the State and that wherein a claim is not brought forth within a reasonable time, that it should not be allowed.

It is therefore considered by the Court that the demurrer of the defendant be sustained and that no recommendation be made to the Legislature for an allowance of this claim.


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    A. F. Prince and Alexander B. Thielens, Administrators of the Estate of Hiram D. Wagner, Deceased v. State of Illinois.

      Opinion flleS April 18, 1923.

    Inheritance Tax — when claimant entitled to a refund. Where an inheritance tax has been assessed against an estate, and paid, and afterwards claims are filed, and allowed against the estate, and the County Judge upon motion modifies the assessement by allowing a deduction on account of the claims allowed against the estate, the claimant is entitled to a refund under Sections 8 and 10, of Inheritance Tax Law.
    Edward J. Brundage, Attorney General, for State.
   This is a claim made by A. F. Prince and Alexander B. Thielens, administrators of the estate of Hiram D. Wagner, deceased for refund of a portion of the inheritance taxes assessed and paid in the estate of said deceased.

The decedent died January 22, 1921, a resident of DeKalb County, Illinois, and claimants were duly appointed administrators of his estate and are now acting. July 18, 1921, pursuant to regular inheritance tax proceedings, the County Judge of said county entered an order assessing the inheritance tax in said estate at $2,459.81, which amount less 5% discount as provided by law, to-wit: $2,336.82, was on the same day paid by claimants to County Treasurer of said County.

Thereafter on February 5, 1923, upon motion alleging the filing and allowance of $44,000.00 claims against said estate, not considered in the original assessment, the County Judge modified the said order of July 18, 1921, by allowing a further deduction on account of said additional claims and fixing the total tax in the estate $1,579.81. The original tax having been paid within six months of decedent’s death said sum of $1,579.81, less 5% discount ($1,500.82) is found to be the correct sum due as inheritance taxes in said estate. The difference between the sum of $2,336.82 and $1,500.82 equals $836.00 due to claimants as refund under sections 8 and 10 of the Inheritance Tax Law.

The Attorney General consents to this allowance. The Court accordingly awards claimants the sum of $836.00.


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    Patrick F. Loftus v. State of Illinois.

      Opinion filed March 8, 1923.

    Fugitives From Justice — statute of limitations. Where claim is not filed within the period of limitations fixed by the statute it is barred.
    Dissmissal of Claim — Rule 12, of Court of Claims. Under Rule 12 of Court of Claims, if it appears on the face of the declaration that the claim is barred by the statute of limitations the Court may dismiss it.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for the sum of $155.68 for mileage of claimant, for the return from Yew York in August, 1916, of James Fulton, a fugitive from justice, who had been charged, in Cook County, Illinois, with the crime of larceny as bailee.

The claim is verified by affidavit and is certified to by the County Judge of Cook County, as required by law.

The expenses were incurred in 1916 in August and should have been filed within the Statute of Limitation. We can see no good reason why, at this late date, some eight years after the services were rendered, the claimant had not filed his expense account and had it acted upon by this Court.

It is more than five years since the claimant’s cause of action accrued and the State of Illinois has interposed a plea of the Statute of Limitation.

Bule IS of the rules of this Court is as follows: If it appears on the face of declaration that the claim is barred by the Statute of Limitations the same may he dismissed.

Tihe plea of the Statute of Limitations having been interposed, it is the opinion of the Court that the claim is barred by the Statute of Limitations, and the claimant is not entitled to an award. His claim is therefore denied.


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    W. P. McGee v. State of Illinois.

      Opinion filed April 18, 1923.

    Non-Liability of State — property lost at State institution. This claim is for the value of a suit-case lost while in the custody of the Dixon State Hospital. Held, no legal liability exist against the State.
    Social Justice and Equity — an award may he made. While the State is not liable the Court- as a matter of social justice and equity may allow an award.
    Edward J. Brundage, Attorney General, for State.
   This is a claim to recover the value of a suitcase and its contents while the claimant was an inmate of the Dixon State Hospital. There appears to be no dispute of the facts that the suitcase was lost while in the custody of the Dixon State Hospital. ¡Neither is there any dispute as to the value of the suitcase or its contents. However, the State interposed a demurrer which is hereby sustained as it is the opinion of this Court that there is no legal liability on the part of the State. It however, appears by statements made in open Court that the claimant is a very poor and worthy person and the loss of the suitcase in question was a matter of serious consequence to him financially.

It is therefore recommended by this Court that the claimant be allowed the sum of sixty-eight ($68.00) dollars as a matter of equity and social justice.


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    F. J. Allen v. State of Illinois.

      Opinion filed April 18, 1923.

    Illinois National Guaed — State liadle for supplies. The State is liable for meals furnished to members of Illinois National Guard, upon order from the Company Commander.
    Edward J. Brundage, Attorney General, for State.
   Claimant, F. J. Allen, by his attorney, files a claim for $59.85 for meals served to members of “Co. F.” Illinois National Guards, while on duty in race riot at East St. Louis, Illinois, by order of Company Commander, O. 0. Smith, who 0. K.’d the bill as correct. The proof is ample and the itemized statement is very reasonable. We find no denial on file by Attorney General.

We accordingly award claimant fifty-nine and 85/100 dollars.


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    C. A. Power Planing Mill v. State of Illinois.

      Opinion filed April 18, 1923.

      Supplies — State liable therefor. The State is liable for supplies purchased by the Department of Public Health.
    Edward J. Brundage, Attorney General, for State.
   The Attorney General consenting to this claim for $3.30 for lumber purchased by Department of Public Health and approved by said department. An award is allowed to claimant in the sum of three dollars and thirty cents.


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    Gunther Hardware Co., Inc. v. State of Illinois.

      Opinion filed April 18, 1923.

      Contract — when State liable. The State is liable for merchandise purchased by the Department of Public Welfare.
    Edward J. Brundage, Attorney General, for State.
   Gunther Hardware Company (Inc.) filed herewith sworn statement for goods and merchandise purchased by the Department of Public Welfare for $50.88. And the Attorney General consents to the allowance of same.

An award is therefore made to claimant for fifty and 88/100 dollars.


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    Davis Cleaver v. State of Illinois.

      Opinion filed April 18, 1923.

      Contract — when State liable. The State is liable for supplies furnished - to the Soldiers and Sailors Home.
    Edward J. Brundage, Attorney General, for State.
   The claimant furnishes proof of supplying eggs, produce and supplies to the Soldiers and Sailors Home to amount of $197.75, which the Attorney General admits.and consents in writing to its allowance. An award is therefore made to claimant in sum of one hundred ninety-seven and 75/100 dollars.


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    Buell S. Rogers v. State of Illinois.

      Opinion filed April 18, 1923.

    Military Service — when State liable. The State is liable for the services rendered by claimant, at the request of his superior officers, in opening and supervising the recruiting office for National Guard for Federal Service.
    Edward J. Brundage, Attorney General, for State.
   This claim verified by affidavit of the claimant, amounting to the sum of $777.70, was filed March 22nd, 1922. The claimant states that he is entitled to said sum as compensation for services rendered as Major, Medical Corps, Illinois National Guard; that the service rendered by said claimant wras at the request of the Adjutant General of the State of Illinois, in opening and supervising the operation of recruiting offices in Chicago, Illinois, for the National Guard for Federal service, during April, May and June of 1917.

This claim bears the approval of Bichard J. Sliand, Col., Adjutant General when the services were rendered.

The Attorney General consents to the award and waives further proof.

The Court therefore recommends an award in the sum of seven hundred seventy-seven dollars and seventy cents ($777.70).


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    Chicago, Burlington & Quincy Railway Company v. State of Illinois.

      Opinion filed April 18, 1923.

      Contract — when State is liable. There being no dispute as to the facts and law governing this case the Court enters an award to claimant for the amount of its claim.
    Edward J. Brundage, Attorney General, for State.
   Claimant files his claim for $35.00 based on a written contract to furnish use of side track of complainant to Illinois Soldiers and Sailors Home at Quincy for two quarters ending March 31, 1917, and September 30, 1918, for $12.50 per quarter equals $25.00.

The proof is ample and the attorney general files his written consent to allowance of $25.00 for which an award is hereby made.


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    Lyman Tiffany Dyer, et al, Executors, Etc. v. State of Illinois.

      Opinion filed April 18, 1923.

    Inheritance Tax — when claimant entitled to a refund. Sec. 25. There being no dispute as to the facts and law governing this case, the Court enters an award in favor of claimant for the difference between the amount originally paid and the amount found due upon the re-assessment of the estate.
    Edward J. Brundage, Attorney General, for State.
   The claimants, Lyman Tiffany Dyer and George Jones Dyer, executors of the will of Henry Lyman Dyer, deceased, bring this action for claims for refund of inheritance tax, paid under section 25 and the Attorney General consents to allowance of amount hereinafter awarded.

Decedent died January 18, 1913, testate, a resident of the State of Hew York possessing certain property, the transfer of which was taxable under laws of Illinois, County Judge of Cook County entered an order assessing the inheritance tax in said estate at $2,411.49 which order was thereafter June 12, 1914, vacated and a tax fixed at $1,607.50, which sum with interest at 6% amounting to $1,744.14 was paid into County Treasury.

In said order of assessment the widow of decedent was assessed upon a life estate in the entire taxable Illinois property, and the remainder amounting in value to $36,250.00 and dependent upon certain contingencies was distributed for the purpose of the tax under section 25 to trustees under the will for the use of Lyman Tiffany Dyer, a nephew of decedent on the assumption he would ultimately succeed to said remainder.

The decedent’s widow, Edith L. Dyer, died July 9, 1919, and thereupon the said remainder became vested indefeasibly in Henry Lyman Dyer, a brother of the decedent and the claimant’s estate.

Said Henry Lyman Dyer died Hovember 19, 1921, a resident of the State of Hew York and the Surrogate’s Court thereof granted letters testamentary to claimants herein.

On December 16, 1922, the County Court of Cook County upon petition of claimants setting up the foregoing facts entered an order, approved by the Attorney General re-assessing the inheritance tax in said estate of Edward Tiffany Dyer at $400 which sum plus interest at 6% from decedent’s death January 18, 1913, to the date of the original tax was paid June 18, 1914, to-wit: $434.00, which is the correct tax due in said estate.

The difference between the sum originally paid, to-wit, $1,744.14 and the said sum of $434.00, to-wit, $1,310.14 is due as refund to claimants with 3% interest per annum from June 18, 1914.


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    Julia C. Walsh, et al v. State of Illinois.

      Opinion filed April 18, 1923.

    Inheritance Tax — xolien claimant entitled to a reftmd. Sec. 25. There being no dispute as to the facts and the law governing this case the Court enters an award in favor of claimants for the amount of their claim.
    Eclwaxd J. Brundage, Attorney General, for State.
   This is a claim by claimants, Julia C. Walsh, Elizabeth L. Cudahy, John E. Cudahy and Gerald 0. Cudahy, legatees under the will of John C. Cudahy, deceased, claim for refund of inheritance tax.

Decedent died testate in Cook County, Illinois, April 23, 1915, and in October, 1915, the inheritance tax was entered, assessing a total of $6,823.11, which less 5% equals $6,481.96, paid into County Treasury by the executor. ■ Certain contingencies under section 25 Inheritance Tax Law existing in said estate happened whereby the Court later determined and assessed a total tax of $4,820.03 less 5%, to-wit: $4,-579.03 being actual amount due the State.

The difference between said sum and amount actually paid being $1,902.94 it is found the sum of $1,902.94 with 3% interest per annum from October 23, 1915, should be refunded to claimants, which we accordingly award to claimants jointly.


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    The City of Chicigo v. State of Illinois.

      Opinion filed April 18, 1923.

      Contract — when State is liadle. The State is liable for water furnished to the Chicago State Hospital, at Dunning, 111.

      Same — when Statute of limitations cannot de pleaded. Where the contract is a continuing one, and the arrangement and price are reasonable the claim is not barred.
    Edward J. Brundage, Attorney General, ior State.
   This is a claim filed by the City of Chicago against the defendant for water furnished by it to the Chicago State Hospital located at Dunning, Illinois, for the period commencing October 10, 1914, and ending June 30, 1921.

There is no dispute as to the fact of the water being furnished as alleged by the claimant and there is no dispute as to the amount charged for such water service.

The defendant comes and files his plea of the Statute and Limitations.

It appears from the evidence and arguments of counsel that the account was a continuing one and that the arrangement and the price charged was very reasonable and that the account is actually a just one.

It is therefore considered by the Court that the claim should he allowed and it is hereby recommended by this Court that the claimant be allowed the sum of $16,006.37.


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    Viola Ogan v. State of Illinois.

      Opinion filed April 18, 1923.

    Governmental Function — calling out of Militia. The State in ordering out of National Guard and directing its operation during a railroad strike exercises a governmental function, and is not liable for injuries sustained by claimant by the tortious act of its soldiers, whether such acts were committed by the soldier in the discharge of his duty or not, or whether such acts were tortious or not.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed by Viola Ogan cleaming to be a resident of the State of Illinois all her life; that she is a widow 33 years of age residing at 1301 South Madison Street, ¡Normal, Illinois; that her husband died in April, 1918, leaving claimant and a child now 10 years old.

The claimant represents that on August 14th, 1922, the employees of the Chicago & Alton Railroad Company were engaged in a strike at Bloomington, Illinois, and that the men and officers of the Illinois ¡National Guard were engaged in guarding the property of said railroad; that the yards of the said railroad company are located in Bloomington, Illinois, and extend for about three blocks south of Seminary Avenue, a public street running east and west in Bloomington and forming the north boundary of the yards. The claimant further represents that on the evening of August 14th, 1922, sentries had been posted along the south side of said avenue at a distance of approximately 75 feet apart and Lieut. Robert L. Crisp, Co. A 130th Infantry, 33rd Division of the said ¡¡National Guard and other officers were engaged in maintaining peace upon and about the said shop yards; that the said Lieut. Crisp had just proceeded from a point north of the shop yard in the line of his duty and had been challenged by one of the sentinels on the south side of Seminary Avenue and had stopped on the said avenue about 20 inches south of the beaten track in the street.

It is further alleged that Seminary Avenue at that time was a public street in a very rough condition and that there were no orders closing the street, it being open at that time to all legitimate traffic ancl for the use of automobiles proceeding along it in a quiet and orderly manner without stopping.

On the said evening about eight-thirty it is further alleged claim- and and her child were being driven in an automobile upon said Seminary Avenue toward claimant’s home at a speed of twelve to fifteen miles per hour, and that the automobile in which claimant was riding passed Lieut. Crisp and proceeded east about 50 feet from the point where he was standing. It is alleged that Lieut. Crisp carrying a 30 calibre Springfield rifle, and afterwards claiming to have been struck on the leg by the automobile and to have fired for the safety of the men posted east of him, ran two or three paces and shot the rifle at the automobile, the bullet hitting the automobile on the steel rib supporting the right side of the seat immediately behind the claimant’s back. It penetrated claimant’s back in a shattered condition, striking claimant’s vertbrae and being scattered throughout the portion of claimant’s body in hundreds of small particles. The claimant, Viola Ogan, was taken to the hospital where she remained over four weeks. While at the hospital an incision ivas made from the front part of her body and the wound -penetrating this cavity from the rear, ivas cleaned and drained. From this wound there was removed quantities of the stuffing of the automobile seat and many pieces of lead. The Avound remained open and continued to eject automobile seat stuffing and small pieces of lead and to exude puss until about March 1st, 1933. The claimant also complained of suffering great pain since that time. The claimant further alleges that she has incurred a hospital bill of $163.10 and physician’s bill for $506.00 and that she is the sole support of a child; that she has no relative who is able to afford hér any pecuniary-assistance; that she has earned a living by washing and doing general housework, and that since being shot, the claimant is totally unable to work and has no means of support excepting her savings and $15.00 per month as a mother’s pension. Claimant further avers that she is permanently injured and makes her claim for an amount of ten thousand ($10,000.00) dollars.

The defendant, the State of Illinois, has demurred to the claim on the ground that the State in ordering and conducting the military operations in the course of which the injury is alleged to have occurred, Avas exercising a governmental function and is not liable for injuries Avhicli may have been sustained by persons by the act of one of its soldiers, whether such act Avas in the discharge of his duty or not, or Avhether such act is tortious or not.

It is the opinion of this Court that the demurrer filed by the defendant should be sustained as a matter of law.

The Attorney General, wliile denying the legal liability, admits that this claim is one which appears very strongly to the conscience of this Court; hotvever, it is the opinion of this Court that- there is no rule or precedent that permits an allowance in this case.

Therefore, the claim is dismissed.


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    Herbert Muffler, John F. Murphy, David Manning and W. H. Newman v. State of Illinois.

      Opinion filed May 1, 1923.

    Property Damage — liability of State. Under the facts proven and admitted by the State claimant is entitled to an award.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed by the above named claimants for injuries sustained, property lost and damaged and loss of time caused by said injuries, and due to the collapse of a State bridge over the Illinois and Michigan Canal at Senaca, Illinois.

The respective amounts filed by said claimants are as follows:

Herbert Muffler ........................................$197.20

W. H. Newman....................... 375.00

David Manning ......................................... 125.00

John F. Murphy........................................ 528.00

The Attorney General admits the truth of the allegations in the statement of claims herein filed, including the amount of damages claimed, waives formal proof of the same and files no objection to the allowance of an award in each case as above set forth.

TYe, therefore, recommend an award to each claimant as set forth in the petition and affidavit of claim and as above stated.


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    William D. Harrington v. State of Illinois.

      Opinion filed May 1, 1923.

    Social Justice and Equity — when an award will Be made. Although no legal liability attaches to the State for loss of property in a State Institution destroyed by fire, as an act of social justice and equity the Court may enter an award to claimant for his property destroyed by the fire.
    Edward J. Brundage, Attorney General, for State.
   This is a claim brought to recover for a loss of personal property by claimant through fire while he was in the employ of the State as printing instructor at the St. Charles School for Boys; that while he was so employed lie resided in a frame building belonging to the St. Charles School for Boys; that while residing in said building, it was totally destroyed by fire on the morning of December 12th, 1922, together with all the contents including the personal property of the claimant consisting of bookcases, clothing, traveling bag, Knight Templex’s uniform outfit complete, canned fruit, etc., as shown by the itemized statement hereunto attached, which statement amounts to $392.65.

The Attorney General comes and files a demurrer which, according to a long line of precedents, the Court sustains.

It appears, however, that the claim hears the approval of E. D. Whipp, as acting managing officer of the institution.

It further appears from the statements that the fire was caused by faulty heating plant and to the use of mine-run coal forming gas and blowing open the doors of the furnace.

Eroni the above and foregoing facts it is the opinion of the Court that as a matter of equity and social justice that said claim be allowed.

It is therefore recommended by the Court that said claimant be allowed the sum of $392.65.


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    Chicago, Milwaukee & St. Paul Ry. Co. v. State of Illinois.

      Opinion filed May 21, 1923.

      Contract — when State liable for transportation charges. There being no dispute as to the facts and law governing this case the Court enters an award in favor of claimant for the amount of its claim.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed by the Chicago, Milwaukee and St. Paul Bail-way Company in this Court on Kovember 18, 1922. The declaration on this claim sets out that in July, 1915, the Adjutant General of the State of Illinois made, executed and delivered to the plaintiff, certain written orders for transportation to be furnished to divers persons named in said orders, upon which orders transportation was issued to said persons as requested; that said persons were transported by the plaintiff as set forth in copy of account attached to said declaration; that said transportation so furnished was of the value of $928.32.

The defendant by its Attorney General comes in open Court and admits that the order given by the Adjutant General as declared by the claimant was actually issued and that the transportation was furnished by them, and that the defendant did make no objections to the allowance of the claim.

It is further considered by the Court that, in view of the record in the case, that the transportation was actually furnished the State of Illinois, and there being no objections by the defendant that the claim be allowed, it is therefore ordered by the Court that the claimant be allowed the sum of $928.32.


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    Cuicago, Milwaukee & St. Paul Ry. Co. v. State of Illinois.

      Opinion filed May 21, 1923.

      Supplies — when State liable. Where coal is consigned to another and through a mistake in billing the car of coal it is delivered to a State institution and is used by it, the State is liable for coal used.
    Edward J. Brundage, Attorney General, for State.
   It appears that claimant delivered to the defendant a certain car load of coal weighing 108,500 pounds, which was loaded at Brazil, Indiana, in C. & E. car No. 185953, consigned to the Consumers Company, Yard 128, Chicago, Illinois, and owing to the error in the billing of said car was erroneously delivered to and unloaded by the Chicago State Hospital, Dunning, Illinois, an institution under the control of the defendant, the State of Illinois. Said coal was unloaded and was thereafter retained and used by said Chicago State Hospital, said coal being then and there of the value o£ two hundred thirty-seven and 37/100 dollars, $237.37). The defendant by the Attorney General appearing and admitting that said coal was actually delivered to the defendant and used by said defendant in its hospital at Dunning as aforesaid, and therefore making no objections to the said claim on the ground that the State of Illinois has never paid for said coal, and that the said State of Illinois is actually indebted for said coal in the amount of two hundred thirty-seven 37/100 dollars, ($237.37). It is therefore considered by the Court that said claimant be allowed for said coal actually consumed and used bv the defendant the sum of two hundred thirtv-seven and 37/100 dollars ($237.37).


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    Roy W. Merrifield v. State of Illinois.

      Opinion filed May 21, 1923.

    Military Service — Rogers v. State, supra, followed. This case is based upon the same principle as that of Rogers v. State, supra, and the decision of the Court there announced governs this claim.
    Edward J. Brundage, Attorney General, for State.
   The claimant, Boy W. Merrifield, brings this claim against the defendant, the State of Illinois, for services rendered as First Lieutenant from May 18th to August 4th, 1917, on the basis of $106.67 per month. The defendant through its Attorney General, comes and files its demurrer.

It appears to the Court that the real basis of this controversy is the question of the age of the claimant and his eligibility for the position lie occupied; that the services were rendered for the Federal Government. There is no dispute about the claimant performing the services. And it further appears from letter in files from the Adjutant General that the service of claimant was satisfactory and should be paid.

It is the opinion of this Court that this is a claim based upon the same principle as the case of Major Bell Rogers v. State of Illinois, in which the claim was allowed, and it is the opinion of this Court that this claim should likewise be allowed.

It is therefore recommended that the claimant be allowed the sum of $433.34.


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    Carl E. Sheldon v. State of Illinois.

      Opinion filed May 21, 1923.

    Fees and Salaries — salary of Oity Judge, how fixed. The salary of a City Judge is not fixed by law but by number of inhabitants of the city in which he is elected.

      Same — when rule that salary of an officer cannot he changed during term does not apply. While the salary of an office cannot be changed during the term of an office holder, elected or appointed, the law has no application to an office the salary of which is determined by the number of inhabitants of the election district in which he is elected.
    Edward J. Brundage, Attorney General, for State.
   The claimant in the above entitled cause alleges that he was Judge of the City Court of the city of Sterling, Illinois, for a term commencing April 1, 1918, and ending March 31, 1922; that prior to January 1, 1920, the only census of the city of Sterling which had been taken was the Federal census of 1910, which showed the population of the said city of Sterling to be more than five thousand and less than eight thousand, and that on January 1, 1920, the Federal census was taken, which showed the population of said city of Sterling to be more than eight thousand and less than twenty-five thousand. It appearing to the Court that, as provided by paragraph 355 of chapter 37 of Smith’s Illinois Revised Statutes, 1921; that in cities of more than five thousand and less than eight thousand that the salary of City Judges in cities of the character of the city of Sterling should be $1,500.00 per annum. It further appearing to the Court that the city of Sterling, according to the census of 1920 contained a population in excess of eight thousand inhabitants, and in accordance with such population the salary of City Judge of Sterling would be $2,000.00 per annum. It further appearing to the Court that claimant served as such City Judge of Sterling for two and one-fourth years after the census of 1920 which showed the population of said city to be in excess of eight thousand.

There is no controversy as to the fact of the city of Sterling having an excess of eight thousand population in 1920, and the only proposition before the Court is whether or not the rule of no change in salary during the term of office, such as was held by the claimant, would prevail in this case. In most cases the salary is fixed by law and in consequence there can be no change, as has been well settled by our Courts, during the term to which the office holder was elected or appointed, but in this case it appears to the Court that the salary of the incumbent was fixed by the number of inhabitants rather than by law, and when the claimant entered upon the performance of his duties in such judicial capacity, he had a right to believe that his compensation would be that which would be awarded according to the population of his city. Consequently in 1920, the period that the population of the city of Sterling had exceeded eight thousand, it become apparent that the salary to be paid to the claimant would by such showing be in accordance with that which was allowed and should be allowed to the position of City Judge when the population had exceeded that of eight thousand, and this Court is of the opinion that the claimant is entitled to his salary of $2,000.00 per annum on and after the showing of the census of 1920, which showed the population of the city of Sterling to be upward of eight thousand. The Court is further of the opinion that the claimant is entitled to an award of $500.00 per year for two and one-fourth years, amounting to $1,125.00.

It is therefore recommended by the Court that the claim be allowed in the "sum of $1,125.00, which is in accordance with the provisions of the statute in cases of cities of upward of eight thousand inhabitants.


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    Illinois Central Railroad Co. v. State of Illinois.

      Opinion filed May 21, 1923.

      Contract — State liable on contract made by Department of Public Works and Buildings. There being no dispute as to the facts and law governing this case the Court enters an award in favor of claimant for the amount of its claim.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for $1,340.76, on account of expense incurred in June, 1918, in constructing a railroad track to the bakery and cold storage plant at the Epileptic Colony, Dixon, Illinois, and repairs made during November, 1918, pursuant to contract between the claimant and the State of Illinois, by its Department of Public Works and Buildings, No. 23594, dated March 5, 1918.

The Attorney General has filed his formal consent to an award, stating that at the time the claim was finally approved in said amount by the Department of Public- Works and Buildings, the appropriation out of which it might have been paid had lapsed, and admitted that there is no defense to the claim.

The claimant is hereby awarded the sum of $1,'340.76, as claimed.


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    John Weir v. State of Illinois.

      Opinion filed May 21, 1923.

    Inheritance Tax — refund where wrong rate is imposed. Where the wrong rate of taxation by mistake has been imposed in fixing the amount of the tax due, and the tax is paid, and the County Court upon proper proceedings corrects the error and modifies the original order of the County, Judge, and fixes the tax at the proper rate, the claimant is entitled to a refund of the difference between the amount of the tax paid and the amount found actually due by the County Court.
    Bclwarcl J. Brundage, Attorney General, for State.
   This is a claim for a refund of a portion of the inheritance tax assessed and paid in the estate of J. M. Jackson, deceased, late of White County, Illinois.

Said decedent died a resident of said county, February 17, 1921, and by his will which was thereafter in said county duly admitted to probate, devised certain property to the claimant herein, a nephew of said decedent.

Pursuant to proper inheritance tax proceedings, the County Judge of said county entered an order February 21, 1923, assessing a total inheritance tax in the estate of $1,118.00, all of which was assessed against the interest received by this claimant under said will.

Said tax, together with interest at the rate of six per cent per annum from the date of decedent’s death, February 17, 1921, to-wit, $1,-252.15 was by the claimant herein duly paid to the County Treasurer of said county, who in due course transmitted the same to the State Treasurer, with the exception of certain amounts lawfully paid out of said tax on the orders of the County Judge.

Thereafter it was discovered that through mistake and inadvertence the rate of taxation prescribed by the amendment toj section 1 of the Inheritance Tax Law, taking effect July 1, 1921, to-wit, six per cent, was imposed, whereas this decedent having died February 17, 1921, the rate established by the amendment of 1919, in force July 1, 1919, to-wit, three per cent should have been imposed. And by consent of all parties including the Attorney General, the County Court of White County entered an order modifying the original order of the County Judge, and fixing the tax against the interest of this claimant at $559.00, which sum plus interest from decedent’s death until date of payment, to-wit, $626.08, is the correct amount of inheritance tax and interest to which the State is entitled in said estate.

These facts being shown by the records of the County Court of "White County, the Attorney General and the State Treasurer, the Attorney General has consented to an award in the sum of the difference between the amount paid and the amount actually due, to-wit, $626.07. This Court, therefore, hereby awards the claimant herein the sum of -$626.07, without interest.


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    Ross S. Marsden v. State of Illinois.

      Opinion filed May 21, 1923.

    Respondeat Superior — when State not liadle. The State is not liable for injuries sustained by its employees while in the performance of their duty.
    Social Justice and Equity — While the State is not legally liable the Court as a matter of social justice and equity recommends an. allowance to claimant for loss of time and expense incurred for necessary medical services.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed for injuries sustained by claimant on December 13, 1922, while in the performance of his duty as a helper on survey work, and in cross sectioning up a steep slope accidently slipped, and in attempting to regain his balance caught the limb of a tree with the result that the sudden jerk snapped the clavicle bone in his right shoulder causing a complete fracture. He was given immediate medical attention, but was unable to work for seventy-six working days on account of the loss of the use of his right arm. The Attorney General appears in behalf of the defendant and files a general demurrer. It is • the opinion of the Court that there is no legal 'liability on the part of the State, and therefore the demurrer of the. defendant is sustained.

However, it is the opinion of the Court in view of the principles heretofore announced by this Court, and as sustained by the Statute creating this Court, that as a matter of equity and social justice in view of the fact that the claimant is a poor man, having a wife and1 two children dependent upon him for support, and that the accident has "worked considerable hardship upon Mr. Marsden and family in view of the fact that by reason'of such accident he was deprived of his ability to earn support for his family seventy-six working days, and that said claimant was capable of earning $4.00 per day, and ivas earning that amount prior ‘to his accident. It is therefore recommended by the Court as a matter of equity and social justice that said claimant be allowed the sum of $352.00, which is his compensation for loss of seventy-six working days'at the rate of $4.00. per day, and $48.00 for necessary medical services rendered. This Court therefore recommends that the claimant be allowed the sum of $352.00.


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    Benjamin Manierre, Jr., a Minor, by Francis B. Manierre, His Guardian v. State of Illinois.

      Opinion filed May 22, 1923.

    Inheritance Tax — when claimant entitled to refund. Section 25. There being no dispute as to the facts and the law governing the case, the Court enters an award for a refund of the tax paid, in accordance with the provisions of Section 25, Inheritance Tax Law.
    Edward J. Brundage, Attorney General, for State.
   It appears that Benjamin Manierre, father of the claimant, died leaving a last will and codicil ; that said will was admitted to probate in the Probate Court of Cook County, Illinois, that said will remains in force and that the executors have been discharged, said estate distributed and said estate closed, and that by the terms of said will claimant received in trust an estate in remainder in a portion of said decedent’s estate after the life of claimant’s mother, Lilly C. Manierre, if he survived her, but if he should not survive her, upon the death of said Lilly C. Manierre was to become vested in George Manierre and William E. Manierre, brothers of said deceased, or in the case of the death of either or both, then to the surviving child or children of them, who would be nephews or nieces of said Benjamin Manierre, deceased.

It further appears that the Inheritance Tax Commission of Illinois caused an appraisal to be made of all the estate of said Benjamin Manierre, deceased, and certain taxes were declared upon the several inheritances and successions under said will of Benjamin Manierre, deceased, and thereafter upon petition filed in the County Court of Cook County, said Court entered its judgment in accordance with said appraisal of said Inheritance Tax Commission that under such assessment said portion of said estate so contingently devised and bequeathed to claimant under section 25 of said Act of the Statute of Illinois, thereby assessing the same as if said remainder had vested in a niece or nephew of said Benjamin Manierre, deceased, allowing only $3,000.00 as an exemption, and fixing the rate at two per cent.

It further appears that all said assessments were paid to the Treasurer of Cook County, and that of that amount the sum of $1,097.00 was assessed on account of the estate so held as a remainder for the benefit of a niece or nephew of said Benjamin Manierre, deceased and which could only take effect in possession or fee if claimant should die without issue before the death of his mother, Lilly C. Manierre, and that five per cent thereof was deducted for prompt payment as provided by law, and the net amount of $3,893.72 was paid on March 16, 1917, in full of said item, that on the fifteenth day of September, 1921, said Lilly C. Manierre died, leaving claimant surviving, so that the said remainder became immediately vested in claimant. The claimant further avers that thereafter he filed a petition in the County Court, Cook County, praying for a revision of said assessment upon the inheritance and successions of the estate of Benjamin Manierre, deceased, based on the death of said Lilly C. Manieyre, and the fact that the claimant survived her and such proceedings were had, that a revision was made of said assessment upon said remainder, reducing the former assessment thereon in the sum of $844.40, which ,sum should be and was reduced by five per cent as provided by law since the payment thereof had already been made, making a net item of $802.16; that no appeal or other proceedings for a review of said judgment of revision has been had, and the same now stands confirmed and in full force. It further appears that the difference between the original assessment so paid and the assessment made upon the revision as aforesaid is $3,090.54, and that claimant is entitled to said difference with interest thereon from March 16, 1917, at three per cent as provided by law to date of repayment as found by said judgment in said County Court. The defendant by its Attorney General makes no objection and consents to allowance as prayed for in petition of claimant. It is therefore considered by this Court that the claimant be allowed the sum of $3,090.54 with interest from March 16, 1917.


text:
    Karl L. Sickenberger v. State of Illinois.

      Opinion filed May 22, 1923.

    Military Service — when claimant entitled to award, although injuries not sustained while in discharge of duty. Claimant, a member of Illinois National Guard, while examining a shell to see if it was loaded was severely and permanently injured by an explosion of the shell. Held, although claimant was not acting in the discharge of his duty he was trying to protect his comrades from severe accident, and is entitled to an award.
    Edward J. Brundage, Attorney General, for State.
   Tills is a claim filed on account of injury sustained by claimant, twenty-one years of age, who was a member of Illinois Kational Guard, and was duly 'warranted as sargeant, and is still a member of said battery, now holding rank of staff sargeant; that on August 6, 19’22, the claimant while on duty with his battery at Camp Custer in company with other soldiers, a certain shell was being passed around for examination, this claimant being desirous of determining whether it was loaded or not, asked for and received the shell into his hand. Seeing that the plug was still in the end, and thinking it was loaded and dangerous, this claimant dropped the shell, but in a few seconds attempted to pick it up in order to get rid of it, when it exploded just as his hand was about to close upon it; that the explosion tore from the claimant’s right hand his thumb, the index and second fingers. The claimant was given medical attention, and according to the findings that the injury according to this claimant was sustained while in line of duty. It appears to the Court that the claimant was a soldier prior to his enlistment in the militia, becoming a private in the Sixth Service Company, Signal Corps, and that he was by trade a telephone maintenance worker. It further appears to the Court that the claimant while not alone acting in the discharge of his duty as a soldier, was trying to protect his comrades from serious accident, and it further appearing that he is maimed for life, greatly handicapping his career. The facts are without dispute, the defendant admitting the allegations of the claimant.

It is therefore considered by the Court that the claimant be allowed the sum of $4,500.00.


text:
    James B. Dibelka v. State of Illinois.

      Opinion filed May 22, 1923.

      Coxtbaot — when State liable for architectural services. Where services have been rendered and expense incurred by an architect in drawing plans and specifications for State projects, and they are accepted by the State, although the work contemplated by the State is not completed, the State is liable to the architect for a reasonable per cent on the estimated work and the expenses incurred in preparing the plans and specifications.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed to recover for services rendered for the defendant of the State of Illinois on account of architectural services in construction work for the State of Illinois. It appears from the declaration of the claimant that services were rendered as shown by claimant’s Exhibit A, which exhibit indicates an account for services rendered over a considerable period of time. There is no objection made on the part of the defendant by its Attorney General as to the truth of these items as shown by Exhibit A. By this exhibit it appears that the State is liable for expense in the sum of $3,441.33; it further appearing that claimant as an architect drew plans and specifications for State projects, one for roadwaj^s and side walks, entrance gates and exterior wiring at the Epileptic Colony at Dixon, Illinois, estimated to cost $135,-000.00, and one at the State Hospital at Alton, Illinois, consisting of two custodial buildings, entrance gates, road ways, and sidewalks, estimated cost $338,000.00.

It appears from the evidence offered that the actual overhead expenses necessary in the preparation of plans and specifications for those two projects would be at least $10,000.00, and it further appearing that the claimant demanded two and one-half'percent for services rendered in this connection under the Statute, and after an opinion had been filed by the Attorney General objecting to the two and one-half percent on account of the fact that the work was not fully completed as contemplated by the Statute, and that in view of the evidence that the expenses incurred by the claimant in preparing the plans and specifications did not exceed two percent, and it further appearing that no objections are made on the part of the defendant by its Attorney General as to the accuracy and justice of the two percent allowances for expenses incurred for the Alton and Dixon projects, and that the two percent allowance for expenses would amount to $9,460.00, and that this amount, together with the amount hereinbefore indicated to be allowed claimant on general expenses would make a total due the claimant on the merits of his claim $11,901.33. It is therefore recommended that the claimant be allow'ed the sum of $11,901.33 in full satisfaction for his claim.


author: Sommer, J.

text:
    (No. 78-CC-1271
    Carol K. Tunk, Claimant, v. The State of Illinois, Respondent.

      Order on motion to dismiss filed July 22, 1987.

      Order on motion to dismiss filed February 8, 1988.

    John J. Lowrey, for Claimant.
    Neil F. Hartigan, Attorney General (Daniel H. Brennan, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER ON MOTION TO DISMISS

Sommer, J.

This cause comes to be heard on the Respondent’s motion to dismiss, and this Court being fully advised in the premises, finds that Robert Airdo was driving the Complainant’s automobile when an accident occurred injuring the Complainant and damaging the automobile; that the Claimant has not made a claim against Robert Airdo and now cannot do so, as the claim is barred by the statute of limitations. Additionally, this Court finds that there are no facts before this Court at this time to indicate negligence on the part of Robert Airdo.

The Respondent argues that the Claimant by not claiming against Robert Airdo failed to “exhaust all other remedies and sources of recovery” as per section 25 of the Court of Claims Act (Ill. Rev. Stat. 1987, ch. 37, par. 439.24 — 5).

A remedy is a favorable result, not the process or means of seeking a result, or an unsupported theory of action. Since there are no facts before this Court at this time to indicate that a favorable result would be possible in an action against Robert Airdo, failure to make a claim against Robert Airdo under the facts presently known does not amount to a failure to exhaust remedies. Therefore it is ordered that the Respondent’s motion to dismiss is denied.

ORDER ON MOTION TO DISMISS

Sommer, J.

This cause coming here to be heard on the motion of the Claimant to dismiss, due notice being given, no objection being filed by Respondent and the Court being fully advised.

It is hereby ordered the motion of the Claimant to dismiss the claim is hereby granted and the claim is dismissed with prejudice.


author: Raucci, J.

text:
    (No. 80-CC-0296
    I.T. West, Executor of the Estate of Betty J. West, deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 31, 1987.

    Swain, Hartshorn & Scott (Tim Swain, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Michael Taylor, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

I.T. West is the duly appointed executor of the estate of Betty J. West, deceased. Betty J. West died on September 28, 1977, at the age of 44 as a result of a collision at or about the hour of 10:00 a.m., at the intersection of Illinois Routes 121 and 98 in Tazewell County, Illinois. At the intersection, Route 121 runs north/south and Route 98 runs east/west. On the date of the collision, Route 121 consisted of two driving lanes and a separated left turn lane to the north, and two driving lanes and a separated left turn lane to the south. On the date of the collision, the speed limit for northbound and southbound traffic on Route 121 was 55 miles per hour. On the date of the collision, northbound and southbound through traffic on Route 121 was not required to stop at the intersection. Northbound and southbound traffic on Route 121 wishing to make a left turn was required to stop at a stop sign at the intersection. On the date of the collision, eastbound and westbound through traffic on Route 98 was required to stop at a stop sign before entering the intersection and at a second stop sign located in the median of the intersection. On the date of the collision, Betty J. West was driving a pickup truck eastbound on Route 98 toward its intersection with Route 121. The pickup truck was in good mechanical condition and was familiar to Betty J. West. So far as anyone knows, Betty J. West had never before attempted to cross Route 121 while traveling on Route 98. (It should be noted that nothing in the record indicates whether or not Betty J. West was, in fact, familiar with the intersection.) On the date of the collision Betty J. West stopped the pickup truck at the first stop sign on the west side of the intersection. She did not, however, stop at the second stop sign located in the median of the intersection. On the date of the collision, Fred Swearinger was driving a tractor-trailer combination in the right-hand lane for northbound traffic on Route 121, approaching its intersection with Route 98. Mr. Swearinger was traveling between 30 and 36 miles per hour. A collision occurred between the two vehicles in Mr. Swearinger’s lane of traffic. The pickup truck struck the tractor-trailer combination in the left front wheel of the tractor.

The intersection was opened to traffic in 1962, at which time there were two driving lanes to the north on Route 121 and two driving lanes and an integrated left turn lane to the south on Route 121. The speed limit on Route 121 was 65 miles per hour. Eastbound and westbound traffic on Route 98 was required to stop at a stop sign before entering the intersection. There were yield signs located in the median of the intersection for eastbound and westbound traffic on Route 98. In 1963 the yield signs in the median of the intersection were replaced with stop signs for about six months and were then changed back to yield signs. Also in 1963, larger stop signs were used to regulate Route 98 traffic entering the intersection. In 1966, a separated left turn lane was added for northbound traffic on Route 121, and the integrated left turn lane for southbound traffic was changed to a separated left turn lane. In 1967, the yield signs in the median of the intersection were changed to stop signs for both eastbound and westbound traffic on Route 98. Also in 1967 post-mounted flashing lights were placed on the east and west sides of the intersection, the posts being on either side of Route 121 on the center median island of Route 98. They were not located in the median space that one must travel through to cross Route 121. Red flashers faced east and west. Yellow flashers faced north and south. In 1973 the speed limit on Route 121 was reduced from 65 to 55, prior to any nationwide reduction. On September 28, 1977, Betty J. West was killed at the intersection of Routes 121 and 98, being the fifteenth fatality since 1964.

It is the opinion of the Court that Betty West had a duty to yield to the Swearinger vehicle and her failure to do so precludes liability on the part of the Respondent. Betty West was under a statutory duty to yield to the Swearinger tractor-trailer which was approaching from her right. Evidence adduced at trial indicates that Betty West was traveling east at the time of the collision and Swearinger was traveling north. Therefore, the Swearinger vehicle was approaching from Betty West’s right. The evidence was clear and uncontradicted that the line of sight from Betty West to Swearinger’s vehicle was unobstructed. Swearinger’s vehicle was between 10 and 12 feet high and over 50 feet long. It was only yards away when Betty West accelerated into the northbound lanes of Route 121. Assuming that Betty West did not see the stop sign, she must have assumed the intersection to be an open one. At an open intersection a driver has a statutory duty to yield to vehicles approaching from the right. (Ill. Rev. Stat. 1981, ch. 95/2, par. 11 — 901(a); Duewel v. Lahman (1981), 103 Ill. App. 3d 220, 224; Carr v. Shirland Township (1978), 66 Ill. App. 3d 1033, 1036.) Betty West breached her duty of care by entering the intersection without yielding to the Swearinger vehicle which was approaching from her right. Also, the fact that Betty West was traveling on a two-lane road preparing to intersect a divided four-lane expressway, she was on notice that “she was approaching an intersection with a preferential highway even though she saw no stop sign.” (King v. State (1975), 30 Ill. Ct. Cl. 457, 463.) In addition, had Betty West been in the exercise of proper care for her safety, she would have seen the approaching semi-trailer rig. From the intersection itself she should have been able to see the Swearinger vehicle with no sight obstructions. She did, however, pull into the intersection in front of the oncoming tractor-trailer. It is therefore apparent that she either failed to look for approaching traffic or that she saw the vehicle and assumed that she had the right-of-way. It is more plausible to assume that she failed to see the approaching truck than to infer that she deliberately pulled onto its path. Given the evidence indicating a clear line of sight, the only explanation for a failure to see the truck is that Betty West failed to look for it. In such a case, she would be entirely responsible for the consequences of her actions. Nunley v. Village of Cahokia (1983), 115 Ill. App. 3d 208, 214.

Aside from the claim of damages to Betty West, claim is made by her family for loss of consortium and economic damages. Betty West’s negligence precludes these damages.

In order for the Claimant to prevail in this cause, a preponderance of the evidence must demonstrate a duty on the part of the State of Illinois, a breach of duty by the State of Illinois, and a causal connection between the breach of duty and accident. (Richardson v. State (1983), 35 Ill. Ct. Cl. 669, 670; Mackowiak v. State (1982), 35 Ill. Ct. Cl. 315, 317.) The evidence produced at trial fails to prove either a breach of the State’s duty or that a breach próximately caused the West accident.

The responsibility of the State to keep the highways reasonably safe does not render the State of Illinois an insurer of highway safety. Allen v. State (1984), 36 Ill. Ct. Cl. 442, 443-44; Jackson v. State (1981), 34 Ill. Ct. Cl. 63; and Bloom v. State (1957), 22 Ill. Ct. Cl. 582.

Furthermore, the evidence produced at trial indicates that the Respondent met its general burden to keep the highways safe for the motoring public. First, the Department of Transportation undertook numerous measures to reduce the number of accidents at the intersection of Routes 121 and 98. Further, the measures the Department took were effective as the accident rate at the intersection declined steadily. Also, the Department was willing to, and in fact attempted to, undertake a dramatic change in the design of the junction at Routes 98 and 121 by installing an interchange. The Department was not allowed to do so and, therefore, it cannot be held responsible. According to the testimony and exhibits, there was a court order in July of 1976 which stopped all construction, all design, financed Federally, as well as all right-of-way acquisition for the project on Route 121 converting it to a freeway from Interstate 74 all the way down to Interstate 55 which would have included Routes 121 and 98.

It is therefore ordered, adjudged and decreed that this claim is denied, with prejudice.