text:
    (No. 946
    A. Flanagan Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1927.

    Henry J. & Charles Aaron, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

The claimant, A. Flanagan Company, a corporation in its declaration, filed in this court July 6th, 1925, alleges that it is a domestic corporation, organized and existing under the laws of the State of Illinois, engaged in the business of dealing in general school supplies and having an office at 521 South Laflin Street, Chicago, Illinois; that certain sums were paid by it to the Secretary of State of the State of Illinois, under written protest in the years 1920, 1921, and 1922 as a franchise tax, which sums total $720.38, and which it seeks to recover in this action. Claimant further alleges that it issued 5000 shares of stock of no par value, which shares were issued in exchange for 250 shares of outstanding common stock of the par value of $100.00 per share, and that each share of no par value stock so issued had a paid in value not exceeding $5.00, which change was made on or about July 7th, 1920; that on or about December 23rd, 1922, under authority of a certificate of amendment to its Articles of Incorporation filed with the Secretary of State and pursuant to a certificate of issuance filed with the Secretary of State, it issued an additional 1000 shares of no par value stock; that such increase was for the purpose of capitalizing and did, in effect, capitalize a $75,000.00 surplus and that each no par value share so issued had an actual paid in value of not more than $75.00 a share; that for the privilege of exercising its franchise in the State of Illinois, from July 1,1920, to June 30,1923, claimant paid to the Secretary of State the sum of $787.50, as franchise taxes assessed against such no par value shares, valued at $100.00 a share, payments being* in the amounts and on the dates set forth in the Bill of Particulars attached to and made part of the declaration; that such payments were forwarded to the Secretary of State under written protest, for the reason that these franchise taxes were assessed against the no par shares on a $100 valuation, and not on the actual paid in value of such shares, and claimant prays judgment against the State of Illinois for $720.38, plus interest from the respective dates of payment to the date of the filing of this claim and its reasonable costs and disbursements herein incurred. A demurrer was filed to the declaration by the Attorney General, which is sustained, as a matter of law.

Claimant contends in its brief and argument that because the Secretary of State had no authority to assess upon a valuation more than the actual paid in value of such no par value shares, the payments made were illegal and void, and therefore the claimant is entitled to a refund. It is the contention of the State that even though the payments made have been illegal and void, yet they were made voluntarily and without duress or compulsion and therefore claimant cannot recover an award; that claimant has forfeited its rights by failing* to pursue its legal remedies in the courts of law and equity in this State. The payment under protest under the law automatically operated so that the monies paid were held in a separate fund after being* paid over to the State Treasurer, together with a copy of the letter of protest. This fund was retained under the law for a period of two years so that if claimant desired it could pursue its remedy and have its rights determined. We do not consider that this is a proper case for the intervention of this court and that it is not a claim which in equity and good conscience we should recognize, and same is accordingly denied.


source: Caselaw Access Project

author: Mr. Chief Justice Clarity

license: Public Domain

text:
    (No. 953
    Phoebe B. Buehler, as Executrix of the Last Will and Testament of Christian Buehler, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1927.
    J. E. Houston, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank B. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim for the refund of $12,096.14 inheritance tax paid in the estate of Christian Buehler, deceased. It is claimed that this amount was paid in excess of the amount that should have been paid.

The Attorney General of this State represents the State of Illinois on the hearing of all questions pertaining to the levy and the hearing of all inheritance tax cases in the various courts of the State. It is the duty of the Attorney General to see that the proper and legal assessments are made. In this case the Attorney General comes and protests against the payment of $5387.87 a part of the above amount.

After examination of the files in the case, this court concurs in the objection of the Attorney General, as to the allowance of the payment of the last above mentioned sum.

The Attorney General consents to an allowance of $6,-708.57 in this case.

Therefore, it is recommended that the claimant be awarded the sum of $6,708.57.


author: Mr. Chief Justice Clabity

text:
    (No. 1010
    Luther Arney, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1927.

    Johnson & Peffeble, for claimant.
    Os cab E. Cablstbom, Attorney General; Fbank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clabity

delivered the opinion of the court:

It appears that claimant was employed by the State of Illinois as a maintenance patrolman and was working on Route 4 near Williamsville, Illinois, and while engaged in the performance of his duties, he alleges that on the 25th day of March, 1925, while lifting some heavy pieces of concrete lying on one side of the road, he strained himself claiming that he lifted a chunk weighing about 175 pounds. However at that time the strain did not disable him and he continued to work. On the 13th of April, 1925, he was helping move some 400 pound cans of asphalt and felt a severe pain in his stomach and upon an examination he found quite a lump and swelling in the region of the groin. On the 3rd day of May, 1925, Mr. Arney was operated on. The doctor bill was $115.00 and the hospital bill $46.90, making a total of $161.90 which appears to be the amount the claimant asks.

The Attorney General comes and admits that claimant has properly stated the facts and in his brief he properly stated the law.

From all the records in this case, and the information before the court, it appears that the claimant was injured while in the course of his employment by the State of Illinois, and as a matter of fact would be entitled to his physician and hospital bills as claimed.

Therefore this court recommends that claimant be allowed the sum of $161.90.


text:
    (No. 1056
    W. H. Thomas, E. A. Midyett, and L. K. Sager, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1927.

      Rehearing denied January 11, 1928.

    John A. Logan, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank E. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim brought to recover $2,500.00 for work performed by claimants for completing the grading and the building of the shoulders along a portion of Section 4 of the hard surfaced road of Eoute 14 from stations 554 to 770, being from a point immediately east of the City of Christopher, Illinois.

It appears that Keely Construction Company of East St. Louis, Illinois, entered into a contract with the State of Illinois for the construction of a hard surfaced road known and designated as Eoute 14. It appears that this road was under the contract in so far as the roadbed and concrete slab was accepted by the State. And it further appears that claimant L. K. Sager under his contract with the Keely Brothers Construction Company, agreed to complete the unfinished portion of the grading work and constructing the shoulders along the said portion of said section. W. H. Thomas and E. A. Midyett were employed by the claimant Sager to assist in the work. It is claimed that more work was required to complete the grading and building of the shoulders than was anticipated, and for this reason this claim is presented. It appears to this court from the record herein that the only agreement or contract to which the State of Illinois was a party, was with the Keely Brothers Construction Company aforesaid. From the Keely Brothers Construction Company came the authority to the claimants for their undertaking, and it would appear that if there was a legal grievance to be considered it would be between the Keely Brothers Construction Company and the claimants as it does appear that claimants were sub-contractors with the Keely Brothers. As a matter of fact it is the opinion of this court that it is the duty of the Keely Brothers Construction Company to keep the State of Illinois harmless from claims of this character.

It is not deemed necessary to consider this case on the question of the law on contracts, further than the fact of it being well understood that the defendant should have the knowledge at least through an express contract, or through some other well defined meaning before being held responsible in a case of this kind.

The State of Illinois is building a great .hard road system which reflects a benefit to the citizens of the State. At the same time it must be considered that the constructing of hard roads brings a great financial obligation upon the people of the State of Illinois. Therefore caution should be exercised in the expenditure of the money the same as would be applied by private corporations and individuals.

It is a well known fact that unexpected conditions in road construction may be expected sometimes to the advantage of the contractor and of course at other times to his disadvantage. Consequently undertaking’s of this kind should be well considered before contract is made and if there is to be a liability on the part of the State of Illinois, that fact should be expressed by a proper contract before work is undertaken or responsibility assumed by contractor or other individual.

Therefore it is considered by this court that this claim be disallowed.

On January 11, 1928, upon petition for rehearing the following* additional opinion was filed:

It is the opinion of the court that the petition of the claimant does not disclose sufficient matter to grant a rehearing.

Therefore it is considered by the court that the petition for rehearing be denied.


author: Mr. Justice Leech delivered

text:
    (No. 1138
    Acme Steel Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1927.

    Essington and McKibbin, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Leech delivered

the opinion of the court:

The declaration filed in this case by the Acme Steel Company, a corporation, on January 27th, 1927, alleges that claimant paid moneys to the State of Illinois under duress and protest as and for the franchise taxes for the years beginning July 1, 1920, and July 1, 1921, in excess of the amount legally due to the State of Illinois, under the provisions of the General Corporation Act; that in the year beginning July 1, 1920, and in the year beginning July 1, 1921, it had total authorized capital stock consisting of 20,000 shares of the par value of $100 each and 60,000 shares of common stock without nominal or par value, of which 40,000 shares were issued and paid for by exchange of former par value shares aggregating $500,000.00 or at the rate of $12.50 per share, 20,000 shares of such common stock being unissued in both of said years; that during the month of February of each of said years it duly executed and filed in the office of the Secretary of State the annual report required by law and in said report set forth facts from which the Secretary of State determined that all of its authorized capital stock was represented by property located and business transacted in Illinois, and also set forth that the total authorized capital stock of claimant corporation consisted of par value stock in the amount of $2,000,000.00 and 60.000 shares of no par value common stock; that in April, 1920, and in April, 1921, Louis L. Emmerson, Secretary of State of the State of Illinois, sent to claimant a written notice wherein the claimant was notified to pay for and as its franchise taxes for each of said years the sum of $4,000.00, stating that same was computed upon the authorized capital stock and setting forth the penalties provided in the General Corporation Act, stating that said penalties would be imposed upon claimant unless said tax was paid on or before July 31st, next following; that said tax was reckoned upon the authorized capital stock of $8,000,000, consisting of $2,000,000 of par value shares and sixty thousand shares of no par value stock-, that in arriving at said total of the authorized capital stock the Secretary of State considered each share of no par value to be of the value of $100.00 per share and assessed the total authorized capital stock of claimant corporation at $8,000,000.00, instead of $2,-750,000.00, the actual value of its authorized capital stock, computed by multiplying $12.50 the issue price of such shares of no par value as had been issued by 60,000, the number of shares of no par value stock authorized; that the proper tax for each of said years should have been $1,375.00, instead of $4000.00; that it was induced to make said excessive payments aggregating $8000.00, of which $5250.00 was not legally due, by means of duress and through fear that the Secretary of State for the State of Illinois, would enforce the statute and impose the penalties provided in the statute applying to corporations which fail to pay their franchise taxes, and claimant asks to be reimbursed in the sum of $5250.00 on account of said taxes so paid to the State of Illinois.

To the declaration filed, the State of Illinois, by the Attorney General filed a general and special demurrer, which special demurrer alleges that the declaration shows that the claim against the State of Illinois, was filed with the Secretary of this court more than five years after the date of the payment of the amounts upon which refunds are now claimed. The demurrer is sustained as a matter of law.

Claimant contends that the cause of action did not accrue until it was apprised of the illegality of the payment, or at least it did not accrue until the date when the Supreme Court of this State rendered its decision in the case of Roberts & Schaefer Company v. Emmerson, 305 Ill. 348, namely December 13th, 1922, and that therefore its claim was filed within the five year period.

This question is passed upon in Rath v. City of Chicago, 207 Ill. App. 117, in which the court states at page 121:

“As the cause of action accrues at the time of payment, the statute of limitations begins to run from that time even though the illegality may not then have been known.”

Reasoning from the premise that all persons are presumed to know the law, the statute must begin to run at the date of payment, and not at the time when the payer is corrected in his misapprehension of the law.

Under the statutes of this State, claimant had a right to pay the assessment under protest and then file a suit to restrain the Secretary of State from turning the money over to the State Treasurer and to recover the monies so paid under protest from the Secretary, and this practice has been followed in a number of cases.

We therefore feel that claimant has forfeited its rights because of its failure to pursue its proper remedies in the courts of law and equity in this state and that its claim is long since barred by limitation, hence the claim is disallowed.


text:
    (No. 1161
    William Schernau, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1927.

    A. E. Campbell, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the ■ court:

It appears that claimant was on the 11th day of December, 1926, working for the Bicker Heating Company of St. Louis, Mo. That he was engaged as a plumber and steamfitter on the new addition to the Armory Building and University of Illinois. The testimony shows that on said date the claimant went to Sergeant A. 0. Cavanaugh who it appears had immediate supervision of the Rifle Range in this part of the Armory Building, and inquired of him if he could do some work in that part of the building and was told that it would be perfectly all right, only that he should let Sergeant Cavanaugh know a short time before he desired to begin the work and it is claimed that Captain Palmer told him that it was perfectly safe. The claimant together with his helper, one McQuay and H. H. ¡Tyrrell the foreman for the contracting heating company, proceeded with the work and the claimant while at his work heard the crack of a rifle and felt a bullet strike him in the leg. From the testimony it would appear that the rifle was discharged by Sergeant Cavanaugh who testified that it was his duty under such conditions to remove the jammed shells.

It is not clear from the records as to exactly how the shot came to be fired. However it does not appear that there is any contradiction that a bullet was fired and that the claimant was hit while in the discharge of his duties and that the claimant had reason to believe that there would’ be caution exercised sufficient to protect him while at his work. It is alleged that the bullet struck the claimant in the right leg between the knee and the ankle breaking a bone in the complainant’s leg and that claimant was obliged to and did enter hospital, and that the claimant further alleges that he suffered considerable pain and suffering on account of said injury as well as loss of time.

The claimant in his declaration admits that he received from the Globe Indemnity Company of Newark, New Jersey, the sum of Ninety-eight ($98.00) Dollars, as compensation under the Workmen’s Compensation Act of this State.

It therefore must be assumed that he received on account of this injury, a reasonable adjustment as measured by the Workmen’s Compensation Act of the State of Illinois. If the claimant was in the employ of the State working directly under the supervision of the State and was injured, and if he filed his claim in this'court, the statute under the Act creating the Court of Claims, would direct this court in the determination of an allowance to follow the rules prescribed in the Act commonly called The Workmen’s Compensation Act, and would it not be reasonable to assume that the allowance would not be greater than the compensation allowed the claimant as admitted by him. It has been the policy of this court to give the same consideration to its own employees who soug’ht relief from this court, the same consideration as if such employee was working for a private corporation or an individual. In the instant case it would appear to this court that the claimant is asking for a consideration greater than would be allowed an ordinary employee of the State.

It is not considered necessary to discuss here the fact of whether dr not the Workmen’s Compensation Act is sufficiently liberal or otherwise. However it is a measure .in the consideration of claims of this character. There is no showing in this record as far as this court can observe that raises any question as to the amount of compensation received by this claimant being inadequate as admeasured by the Workingmen’s Compensation Act of this state.

It is therefore considered by this court that this claim be disallowed.


text:
    (No. 1188
    Joseph C. Belden and Edgar Stanton, as Executors of the Estate of George Campbell Rew, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1927.

    Hyde, Hennings, Thulin, Westbrook and Watson, for claimant.
    Oscar E. Carlstrom, Attorney General; Boyce A. Kidder, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim for a refund under Section 25 of the Inheritance Tax Act of Illinois for inheritance tax overpaid.

The Attorney General in behalf of the State of Illinois, comes and makes his statement and sets forth therein that from an examination of the documentary evidence and proofs filed in support of said claim that he finds said documentary evidence and proof sufficient to prove the correctness of the material allegations of the declaration and sufficient to establish the validity of the claim and accordingly the Attorney General consents to an award in this case in favor of said claimants in the sum of $71,600.01 together with interest thereon at the rate of 3 per cent per annum from Dec. 6th, 1924, to date of payment of said claim.

Therefore it is recommended by this court that" claimant be awarded the sum of $71,600.01, together with interest therein at the rate of 4 per cent per annum from Dec. 6th, 1924, to date of payment of said claim.


text:
    (No. 1189
    Isaac H. Mayer, Edwin F. Meyer, Walter A. Hirsch and Rachel Mayer Trustees Under the Last Will and Testament of Levy Mayer, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1927.

    Mayer, Meyer, Austrian & Platt, for claimant.
    Oscar E. Carlstrom, Attorney General; Boyce A. Kidder, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim filed for refund under Section 8 of the Inheritance Tax Act of the State of Illinois.

The Attorney General comes and files statement in words and figures as follows, “The Attorney General has examined the declaration filed herein and also the documentary evidence and proofs filed in support of said declaration, being claimant’s Exhibits 1, 2, 2a, 2b, 3, 4, 5, 6, 7, 8 and 9 and finds that said documentary evidence and proofs are sufficient to prove the material allegations of said declaration and sufficient to establish a valid claim in favor of said claimants in accordance with the prayer of said declaration. Accordingly the Attorney General consents to an award in this case in favor of the claimants, in the sum of $19,449.64.”

It is therefore considered by the court and it is recommended that claimant be allowed the sum of $19,449.64.


text:
    (No. 959
    Eben P. Clapp and Eben P. Clapp as Guardian of the Estate of Matthew Morton Clapp, Sole Heirs at-Law of Mary Morton Clapp, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1928.

    J. E. Houston, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim brought to recover inheritance taxes which is claimed to be paid to the State of Illinois in excess of the amount that should be paid as claimed by claimants.

It appears by the files that the usual course was followed in assessing the taxes in this estate. An adjudication was had upon the taxes in question by the County Court of Cook county, Illinois. A stipulation was entered into between the claimants and the defendant the State of Illinois which recites several facts and conclusions in reference to this case. However the one element of the stipulation which appears to this court controls the issue at question is in words and figures as follows:

Twelfth: That no appeal was taken from the order of the judge of the County Court of Cook county, Illinois, finally determining Illinois Inheritance Taxes, paid as aforesaid and the taxes so paid were not paid under protest.

Therefore it appears that the ground for resistance on the part of the Attorney General that the claimants did not follow their legal remedy, nor make any attempt to do so is sufficient to bar claimant from recovering in this case.

This court has heretofore ruled that if a claimant had a remedy in a court of general jurisdiction that this court would deny relief on the principle that claimant had a means and method to have his grievance adjudicated through a court of general jurisdiction. The statute prescribes a method of appeal in cases of this character and it would appear to this court that the claimant should follow this method of procedure if not satisfied with the ruling of the County Court of Cook County for the reason as above stated that redress could be had in the manner prescribed by law. There is also another reason that would impel this court to refuse to take jurisdiction of a case appealable in the courts of general jurisdiction and that is the fact that in so doing this court would assume the authority to review the acts and conduct of a court of general jurisdiction. The constitution and statute prescribes a method for litigants to follow in a case of this character. An appeal could be had and the trial court could be thus afforded the opportunity to have their judgments considered by a higher court as prescribed by statute and contemplated by the constitution of our State.

Therefore it is considered by this court that said claim be disallowed.


author: Mr. Justice Leech

text:
    (No. 1088
    American Film Company, Incorporated, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1928.

    Cassels, Potter & Bentley, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyic, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This is a claim for the refund of $568.58, excess franchise tax and penalties paid to the Secretary of State of the State of Illinois, in the year 1921, by above named claimant, a corporation duly organized and existing* under the laws of the State of Virginia, and duly admitted and authorized to transact business in the State of Illinois. There is no dispute as to the facts in the case, that said sum was paid under protest, on October 24th, 1921, to the Secretary of State, and that said fund was held by said Secretary of State for a period of two years, when same was turned over to the State Treasury. At the time claimant paid the money into the hands of the Secretary of State, the statute in force governing the payment of monies into the State Treasury was the act of 1911, namely: “An Act to amend ‘An Act in relation to the payment of public money of the State into the State Treasury’.” Approved June 9, 1911, as amended and filed July 13, 1921, laws of Illinois, pp. 586-587, which provided that all public moneys received by said officers should be paid into the State Treasury not later than thirty days after the receipt of same, and that if the money had been paid under protest, then a copy of the statement of protest should be filed with the money, which protested payment would thereby be held in a separate fund by the State Treasurer for a period of two years. This obviously provided a method by which claimant. could have pursued its remedies in a court of record to recover the funds so alleged to be illegally paid, from the State Treasurer, during any time within the period of two years after the date of payment to the State Treasurer. If the claimant, however, did not pursue its legal remedies, or failed therein, then, after a lapse of two years, the State Treasurer could commingle the said special fund with the public funds of the State. .

Claimant having failed to pursue its legal remedies, we feel that it is not the purpose of this court to determine the rights of claimant who is or may be barred by the constitutional provision against making the State of Illinois, a party defendant .in law or equity, and the claim is accordingly disallowed.


author: Per Curiam:

text:
    (No. 1092
    W. F. Barton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1928.

    B. L. Kirk, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank It. Eagle-ton, Assistant Attorney General, for respondent.
   Per Curiam:

This cause coming on to be heard upon motion of claimant that the above entitled cause be dismissed, and it appearing that there is no reason why said cause should not be dismissed,

It is therefore considered by the court that said cause be, and the- same is hereby dismissed.


author: Mr. Justice ¡Thomas

text:
    (No. 1115
    Lewis E. Scharf, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1928.

    Theodore Scharf, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General,' for respondent.
   Mr. Justice ¡Thomas

delivered the opinion of the court:

Claimant is a physician. He made application to Dr. George A. Zeller, managing officer of the Peoria State Hospital, for a position in that institution. About October 12, 1925, he was given temporary employment as assistant physician, and remained there until about June 5, 1926. He had never taken the civil service examination and had not been certified by the Civil Service Commission. His salary was $150.00 per month and maintenance for himself and family. His work at the hospital was not satisfactory. Many complaints were made by the Assistant Superintendent and others in charge of the patients of claimant’s unconcern for the welfare of those under him. He was neglectful of his duties and there was constant friction between him and those in charge of the various departments of the institution. His conduct was such that it became prejudicial to the best interests of the hospital and its inmates to retain him, and he was notified in the latter part of April, 1926, that he would be relieved from duty May first. He was discharged at that time and thereafter was given no assignment and performed no duties at the hospital. He was permitted, however, by Dr. Zeller the courtesy of occupying his quarters at the hospital until he could find some other position. As these facts are clearly shown by the evidence, it is apparent that claimant is not entitled to any salary after May 1,1926.

The claim is therefore denied and case dismissed.


author: Per Curiam;

text:
    (No. 1244
    Container Corporation of America, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1928.

    Davis and Andrews, for claimant.
    Oscar E. Carlstrom, Attorney GeneralDavid J. Kadyk, Assistant Attorney General, for respondent.
   Per Curiam;

This cause coming on to be heard upon the stipulation and agreement by and between the parties in the above entitled case that said cause be dismissed without prejudice, and it appearing that said cause should be dismissed,

It is therefore considered by the court that said cause be, and the same is hereby dismissed.


text:
    (No. 1247
    Cadet Knitting Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1928.

    Paul O’Donnell, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The declaration filed by claimant, Cadet Knitting Company, a corporation organized and existing under the laws of the State of Delaware, and heretofore duly admitted to transact business in the State of Illinois makes claim for $7,-597.77, for moneys heretofore paid to the State of Illinois, which were not legally dne to it, and which through mistake and error on the part of the State officers collecting said funds were turned over to the State Treasury instead of being held by said collecting officer subject to the order of the Court of Record in a suit testing the constitutionality of the franchise tax law under which said sum was paid. Claimant alleges that said sums were paid to the Secretary of State under the franchise tax law, and that a letter of protest was sent with said Temittances; that it filed in the Circuit Court of Sangamon county, Illinois, a bill enjoining the Secretary of State from paying said sum or any part thereof over to the State Treasurer until the further order of court and that said court entered such an injunction or restraining order; that later the Supreme Court of the State of Illinois held said tax law under which said sums were exacted to be unconstitutional and void and that said Circuit Court of Sangamon County thereupon ordered said Secretary of State to refund said sums to claimant. The claim above noted for $7,597.77 is made up of three items as follows: — •

1. The sum of $3,174.74.

2. The sum of $2,986.35.

3. The sum of $1,436.68.

The demurrer filed by the Attorney General of the State of Illinois, is sustained as a matter of law.

The answer of the Attorney General filed in this matter, recommends that the first two items in said claim, as above enumerated be allowed by this court, claimant having pursued all legal remedies provided under the statute, and the monies there claimed having, through error, been paid by the Secretary of State of the State of Illinois, into the State Treasury. The third item is resisted because it was not made under protest, nor is there adduced any allegation of duress or com-. pulsion, sustainable by law or facts as to said payments and no bills for injunction restraining the Secretary of State from paying said sums to the State Treasurer were filed by claimant.

Therefore we award claimant the sum of $6161.09, being the first two items above listed, and the third item of $1436.68 is disallowed.


text:
    (No. 1248
    Walworth Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1928.

    Paul O’Donnell, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This is an action commenced by the Walworth Company, a corporation, organized and existing under the laws of the State of Massachusetts, and duly admitted to transact business in the State of Illinois, for a refund of $10,992.52, which sum their declaration alleges was erroneously, through error on the part of the state officers, turned over to the State Treasury. This sum is made up of four items, as follows:—

1. $1,083.97 paid in June, 1925, franchise fees.

2. $ 332.83 paid December 21, 1925.

3. $3,864.00 paid December 21; 1925.

4. $4,908.80 paid December 21, 1925.

Claimant further alleges in its declaration that in January, 1925, while the Secretary of State for the State of Illinois, still held the sum of $9,105.63, composing items 2, 3, and 4, above, complainant filed its • bill in the Circuit Court of Sangamon County, alleging the law under which said sums were assessed against it to be unconstitutional and void and praying an injunction against Louis L. Emmerson, the Secretary of State, for the State of Illinois, from turning over to the State Treasury said sum, and further praying that the defendant, Louis L. Emmerson, be ordered to turn over and refund to complainant, said sum; that the court granted a temporary injunction restraining the defendant, Louis L. Bmmerson, Secretary of State, from paying over to the State Treasury the sum of $8,029.23 of said total sum, but refused to grant an injunction restraining the payment over of $1,-076.40; that subsequently the Supreme Court of the State of Illinois, declared the law under which said sums were levied and assessed against claimant and so paid by this claimant to be unconstitutional and void and that thereupon, upon application by this claimant, the Circuit Court of Sangamon County entered an order commanding the defendant, Louis L. Bmmerson, as Secretary of State of the State of Illinois,, to pay over and refund to this claimant the sum of $8,029.23, previously enjoined by said court; that said injunction was. duly served upon said Secretary of State, and that subsequently the order of the court commanding him to refund said sum of $8,029.23 was also served upon said defendant,, Louis L. Bmmerson, as Secretary of State of the State of Illinois; that in July, 1926, it was again assessed another franchise tax for the year beginning at that time under said invalid law and that it paid the sum so assessed under protest and proceeded to file an injunction bill to restrain the Secretary of State from paying* same over to the State Treasury and to require the Secretary of State to refund said fund; that at said time, in July, 1926, it appeared to its attorneys and also to the Attorney General for the State of Illinois, to be best and most convenient for all parties concerned to consolidate the suit already filed, covering the 1925 tax payment with the new suit proposed to be filed covering the 1926 tax payment; that it accordingly prepared a new bill, through its attorneys and set up the necessary allegations with reference to taxes paid in each of said years, and thereupon it filed said bill and secured a temporary injunction covering the amount already in the hands of the Secretary of State for the year 1925, -and previously tied up by an injunction as well, as the additional amount paid in the year 1926 and that it thereupon dismissed its bill after service of the new injunction writ, upon said Secretary of State; that certain confusion arose because of its procedure and the Secretary of State was erroneously advised that it was no longer necessary to hold the sum of $8,029.23, and thereupon said Secretary of State paid said sum over to the State Treasury of the State of Illinois, in violation of the injunction issued by the Circuit Court of Sangamon County; that claimant had no notice of this action or of the error until July, 1927, after the law had been declared unconstitutional, and after the Circuit Court of Sangamon County had ordered a refund of a total sum, including said sum of $8,029.23,- and claimant alleges that this money would have been paid to it about July 1st, 1927, except for said error and mistake on the part of the State Officer, and therefore claims in addition to said sum, interest thereon at 5%- per annum, amounting to $802.92. In the second count in said declaration, claimant alleges that it paid, at the same time as the payment of $8,029.23 referred to in the preceding account, the additional sum of $1,076.40, which additional sum, although paid under protest and duress was not tied up by injunction of the Circuit Court of Sangamon County, and that it paid in the year 1925, as franchise taxes on its original capitalization the sum of $1,083.97, but that said sum was not tied up by injunction.

Motion of claimant to withdraw from its original claim the item of $1,083.97, and to an immediate award of $9,908.55 was filed December 17th, 1927. Demurrer of the Attorney General of the State of Illinois to the declaration of the claimant is sustained as a matter of law.

An answer of the Attorney General to said declaration, recommends the payment to claimant of $9,908.55 and we, believing that in equity and good conscience, the claimant is entitled to said sum, we accordingly award claimant said sum of $9,908.55.


author: Mr. Justice Thomas

text:
    (No. 1272
    Tom Adams, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1928.

    Tom Adams, pro se.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant was engaged in hauling dirt with his team for the State and while so employed one of his horses became so injured that it had to he killed. It is shown the horse was worth $75.00. The Engineer of Construction and the Attorney General have both recommended the allowance of the claim and he is therefore awarded $75.00 in accordance with their recommendations.


text:
    (No. 1278
    Clyde E. Stone, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1928.

    Clyde E. Stone, pro se.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court :

Claimant is one of the judges of the Supreme Court of Illinois. He was elected to succeed himself June 6,1927. The Act of June 21, 1923, provides: Until the first Monday in June, 1924, the salary of each judge of the Supreme Court shall be ten thousand dollars annually. After the first Monday in June, of the year 1924, the salary of each judge of the Supreme Court who is elected after this Act takes effect, shall be fifteen thousand dollars annually. (Sec. 83, ch. 53, Smith-Hurd Revised Statutes of Í927). Claimant’s term of office as judge of the Supreme Court began on the first Monday in June, 1927. (Sec. 6, article 6, Constitution 1870). By the provisions of the Act of June 21, 1923, his salary is $15,-000.00 annually after that date. This salary cannot be increased or diminished during the term for which he was elected. (Sec. 7, art. 6, Const, of 1870). It was the duty of the General Assembly of 1925 to make an appropriation for the payment of claimant’s salary at the rate of $15,000.00 from June 6, 1927, to June 30, 1927. (Sec. 18, art. 4, Const, of 3870). The General Assembly of 1925 made an appropriation for the payment of salaries of judges of the Supreme Court to June 30, 1927, at $10,000.00 per year. By some oversight no appropriation was made for the payment of the increase of salary from June 6,1927, to June 30,1927.

Claimant was paid for the month of June, 1927, at the rate of $10,000.00 per year, which left a balance due him of $333.33 for that month. This amount was not paid because no appropriation had been made for its payment by the General Assembly. Under the provisions of section 7 of article 6 of the Constitution and the Act of June 21, 1923¿ the State owes him that sum.

It is, therefore, ordered'that claimant be and he is aivarded the sum of $333.33.


text:
    (No. 1204
    Clarence Hillebrand, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1928.

    June C. Smith, for claimant.
    Oscae E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears that claimant was employed by the Department of Highways of the State of Illinois on the 19th day of February, A. D. 1927, working on State Road Roúté No. 12, painting the guard posts which had been set along either side of a fill over which the hard road passes and while thus employed he was struck by an automobile, knocked down and his right leg broken.

There is no contention as to the fact that he was injured while in course of employment and his damages must be measured under the Workmen’s Compensation Act of the State of Illinois,

The claimant figures that an award of Twenty-nine.Hundred Ninety ($2,990.00) Dollars, should be allowed. The Attomey General suggests an award of Two Thousand ($2,-■000.00) Dollars. This court is of the opinion that figuring from the record the extent of the claimant’s injuries, that the suggestion of the Attorney General is a fair, reasonable and just allowance.

Therefore this court recommends that claimant be awarded the sum of Two Thousand ($2,000.00) Dollars.


text:
    (No. 1212
    William T. Hamilton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1928.

    John A. Mayhew, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank E. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The claimant, William T. Hamilton, has filed in this court a declaration, in which he sets up that he is a resident of Kankakee, Kankakee county, Illinois, and has been a resident of the State of Illinois for more than ten years last past; that on May 1st, 1923, he was employed by the State of Illinois, and as such employee was working at. the Kankakee State Hospital for the Insane at Kankakee, Illinois, and that he had been an employee of said State of Illinois, and had been working at said State Hospital as a carpenter for many years prior to May 1st, 1923; that on said date, in the course of his ■employment, he suffered an accidental injury, the result of which has left him helpless and unable to follow any line of occupation whatever, and that he is now dependent upon others for support; that the injury complained of resulted as follows: That while doing carpenter work at said State Hospital, hanging a barn door, together with other men, that while lifting said barn door, it got beyond their control and while he was attempting to hold said door, his arm and shoulder were wrenched in snch a way as to cause him to become partly paralyzed and that he is now helpless; that at the time of the injury he was earning approximately $44.00 per week; that prior to and at the time of said injury he had al - ways been strong and robust and of good health, and was able to work continually, but since said accident he has been unable to carry on any occupation whatever, and has become entirely helpless.

The State of Illinois, by the Attorney General, has filed a demurrer to the declaration, which is sustained as a matter of law.

A statement filed by the Attorney General states that claimant, in his statement, brief and argument fairly sets up the facts and the law and applies the fact to the law. Considerable testimony has been introduced by claimant to substantiate his claim, and we believe that in equity and good conscience an award should be made in this case, and we accordingly award to him the sum of Thirty-seven Hundred and Fifty Dollars, the sum which he would receive, and had he been employed under the provisions of the Workmen’s Compensation Act of the State of Illinois.


text:
    (No. 1213
    Lafayette Love, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1928.

    John A. Mayhew, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This cause comes before the court on a declaration filed herein on July 7th, 1-927, by Lafayette Love, claimant, in .which he alleges that he is a resident of Kankakee, in Kankakee county, Illinois, and has been a resident of the State of Illinois for more than ten years last past; that on August 12th, 1922, he was employed by the State of Illinois, at the Kankakee State Hospital for the Insane, at Kankakee, Illinois, and had been working at said State Hospital as an attendant since April 21st, 1921; that while in the employ of the State as such attendant, and in the course of employment, as such attendant, he suffered an accidental injury, the result of which has left him partially incapacitated and unable to follow his usual line of work, and that his health has been seriously impaired as a result of said accident; that the injury complained of resulted as follows: That while working as an attendant at said hospital, one of the patients from said hospital in one of the wards, namely, Ward No. 7, South, became violent and attacked another attendant and that claimant went to the assistance of said attendant to help said attendant get said violent patient under control, and while so doing he was kicked by the patient and seriously injured; that as a result of said injury two operations were necessary, the first operation being shortly after said injury, and the second operation being in May, 1924, and that at the last operation it became necessary, as a result of said injury to have the right testicle of claimant removed; that he has been in poor health since said injury; that at the time of the injury he was earning approximately Fifty-five Dollars per month and maintenance, and petitioner asks damages in the sum of Ten Thousand Dollars.

The State of Illinois, by the Attorney G-eneral, filed a demurrer to the declaration, which is sustained as a matter of law.

There is some conflict in the testimony, as to when the first operation was performed, the records of the hospital in which claimant was treated being incomplete and uncertain. In rendering an award, we take into consideration the fact that claimant is now holding the same position which he held prior to his injury and is receiving more money than he was at the time the injury was received, and that he has lost no wages since the injury. However, we believe that in equity and good conscience claimant should receive some compensation for the permanent disability which he has suffered on account of said injury, and award to him the sum of Five Hundred ($500.00) Dollars.


text:
    (No. 1276
    Emily Haslam, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1928.

    Smith & Smith, for .claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

, The claimant alleges that on Jan. 10th, 1925, she was employed as a domestic in the dining: room of the Peoria State Hospital at Bartonville, Illinois, and had been employed at said institution for six years prior thereto; that on said day while employed she was injured by a patient of said State Hospital and received' an injury on the forehead above the right eye, and an injury at the base of the skull and a lacerated face. She claims that such injury gave her intense pain at the back of the head and over the right eye and caused her eyes to be crossed making her see double and rendering her hearing defective. It is also alleged that she had a partial facial paralysis for á considerable length of time..

There is no contention as to the fact that she was injured in the course of employment by the State of Illinois, and there is no contention as to the fact of her being severely injured causing her severe pain and inconvenience and incapacitating her for a considerable length of time and from the record it appears that, she suffered a severe nervous shock in addition to the injuries above described. The defendant the State of Illinois, is endeavoring to give the wards of the State the best possible care and therefore must have employes of the best standard and type obtainable in order to carry on the great charitable program of the State and therefore the employes of the State should have the same protection and consideration as is given to employes by private corporations.

Therefore after considering the records very carefully under the Compensation Act of the State of Illinois and as a matter of equity and social justice, the court recommends that claimant he allowed the sum of Twenty-five Hundred ($2,500.00) Dollars.


text:
    (No. 956
    Lamoreaux Brothers Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 20, 1928.

    D. M. Mubphy, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank ft. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

On November 19, 1923, claimant entered into a contract to construct an earth roadway 32 feet wide and 15,287.8 feet long on State Bond Route No. 3 in Whiteside County. In the construction of that portion of the work between stations 507 and 592 it is claimed gumbo was encountered and that the work was thereby slowed down and made more expensive to do. It is alleged this additional expense amounted to $3,-411.45 and claimant has begun this action to recover that sum.

The Attorney General filed a demurrer to the declaration but before it was called to the attention of the court evidence was taken by both claimant and the State. The case will therefore be considered as thoug'h a general traverse had been filed.

The only evidence offered by claimant was the testimony of Henry Pickett and O. F. Goeke. This evidence shows that claimant did not do any of the work but sub-let it all to Mr. Pickett and that he then sub-contracted a portiom of it to Bally Eddy. Claimant contracted to do the work for 31 cents per cubic yard for earth work and $2.00 per cubic yard for rock excavation. It sub-let the work to Mr. Pickett for 7% less than it had contracted to do it for and retained 7% of the contract price as its profit on the work. It thus clearly appears that claimant was pnt to no extra expense by reason of the gumbo formation encountered in the work and suffered no loss by reason thereof, and that if any loss was suffered it was by the sub-contractors. It is a familiar rule that a litigant can not make one case by his pleadings and another by his evidence. The allegata and probata must correspond.

But we do not think claimant could recover even had the work been done by it. The State introduced in evidence the notice to bidders, the proposal or bid of claimant, the contract with claimant, its bond and the plans and specifications for the work. The notice to bidders states the proposed work was to be an earth roadway, gave the location of it and stated where the plans and specifications could be examined. The bid of claimant states it will do the work according to the plans and specifications, and declares it has examined the site of the proposed work to its satisfaction and has examined and is familiar with the provisions of the plans and specifications, and agrees to do the earth work at 31 cents per cubic yard and any rock work encountered at $2.00 per. cubic yard. The contract signed by claimant recites that the notice to bidders, the proposal or bid of claimant, the plans and specifications for the work and the bond of claimant shall be and all are a part of the contract. The specifications require the contractor to furnish all materials and machinery necessary to do the work at his own expense. The specifications provide that earth excavation shall include the removal of all materials not provided for as rock excavation, and that rock excavation comprises detached boulders of at least one-half' cubic yard and all material in compact beds or masses which requires continual drilling and blasting for removal. Under these provisions of the contract it is clear that claimant was. not entitled to anything extra because gumbo was found. Gumbo is not rock, it is earth, and under the contract claimant was required to move it at the contract price of 31 cents-per cubic yard. There is no basis upon which this claim can be allowed and it is therefore denied.


author: Mr. Jttstice "Thomas

text:
    (No. 1054
    Walter Wheeler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 20, 1928.

      Rehearing denied September 11, 1928.

    Ralph Dempsey for claimant.
    Oscar E. Carlstbom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Jttstice "Thomas

delivered the opinion of the court:

On June 30, 1926, claimant filed his declaration in this action asking $3000.00 damages alleged to have been caused to his property by the construction of State Route No. 9. -Claimant’s property is a ll/2 acre tract of hilly land improved with a dwelling house, wash house, poultry house, barn, hay shed, machine shed, well and cistern. The road extends along the entire south line of the premises, a distance of approximately 340 feet, and the property extends back up the hill north about 245 feet from the road. The house is located on the east part of the lot and the barn and other buildings ■on the west part. There is a drive about the center of the premises extending from the road up the hill to the buildings. Southeast of the house were a number of fruit trees.

Route 9 is an old established highway upon which the State has constructed a concrete pavement. The plans for the construction of this pavement required the grade of the ■old road to be lowered and a wider right of way secured in front of claimant’s property, and before the work was begun ■claimant dedicated to the State a strip of ground off the south side of his premises for highway purposes for which he was paid $50.00.

Work began on the road in the summer of 1924. ■ About the last of August or first of September of that year, slides -occurred in the southeast corner of claimant’s property. 'These slides continued for some time and the surface of the land back np the hill from the road a distance of 40 to 60 feet was affected by them. As a result of the slides all claimant’s fruit trees were destroyed and the surface of the hill was broken up.

It.is alleged by claimant that the removal of the dirt for the purpose of lowering the grade of the road caused the slides and consequent damage to his property, and he invokes the doctrine of the lateral support of adjacent soil to sustain his claim. The principle that one is entitled to have his soil sustained by the support of the adjacent land only applies to land in its natural condition. We do not think, however, a discussion of this question is necessary as we have reached the conclusion that the slides were not caused by the excavation of the road. Claimant’s property is situated on a steep hill side, is what is termed bluff-land. The surface is composed of glacial drift of loose material resting upon hard-pan. This loose material is from 1.1 to 5.8 feet thick over the part of claimant’s land where the slides occurred, and is very porous and readily absorbs water. The underlying hard-pan is very compact and nearly impervious to water. In times of heavy rainfall the water passes through the loose surface to the underlying hardpan, lubricating the top of it and causing a tendency in the surface to break loose from the hard-pan and slide down the hill. In the months of June, July and August, 1924, just prior to the first slides on claimant’s land, the rains had been very heavy in that locality, the fall for these three months being 20.82 inches, while the total for the entire year was only 38.43 inches. Other slides occurred in the year 1926. The rainfall in the area of claimant’s land that year was 50 inches, being the heaviest annual precipitation in that area in 63 years, the average annual precipitation for the 71 years the records have been kept being only 34.70 inches. There was no soil removed from claimant’s land but the grade of the old road led upon which the pavement was laid was lowered 1.52 feet south of that portion of claimant’s land where the slides occurred. West of the part where the slides occurred and where the slope of the land was practically the same, the grade of the old road bed was lowered from 4 to ál/2 feet, yet there was no sliding of the surface there. It also appears from the evidence that slides have occurred in this area at points on the road where no excavations were made and even where fills were required Wherever these slides occur it is only the loose surface material that moves, there being no movement of the hard-pan. We think the sliding of the surface of claimant’s land was caused by the unusual heavy rainfall and the peculiar composition of the land and not by the slight excavation made for the purpose of lowering the grade of the old road. It follows that claimant cannot recover and his claim is, therefore, denied.

On September 11, 1928, upon petition for rehearing the following additional opinion was filed.

The claimant in the above entitled cause has asked for a rehearing of his case.

After a careful consideration of the petition for a rehearing, we are of the opinion that the excavation for. the construction of the hard road was not the cause of the sliding of the soil, but that such sliding was due to the heavy rainfall.

The decision heretofore rendered is affirmed.


author: Mr. Justice,Thom:as

text:
    (No. 1057
    Jacksonville Grain and Commission Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 20, 1928.

    L. 0. Vaught for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice,Thom:as

delivered the opinion of the court:

In its declaration claimant asks for an allowance of $10,-000.00 damages to its property and business at Naples, Illinois, alleged to have been caused by the construction of a levee by the State. The Attorney General filed a demurrer to the declaration which we might well sustain; but as both the claimant and State have taken and filed evidence in the case without waiting for a ruling on the demurrer, we will hear and consider it as though a general traverse had been filed.

The Village of Naples is situated on the east bank of the Illinois River and is subject to overflow in times of high water. Water Street extends north and south along the river bank and Shelley Street extends east from Water Street. The property alleged to have been damaged is immediately south of Shelley Street and east of Water Street, and is 800 feet long east and west and 125 feet wide north and south. An alley extends south from Shelley Street to another street the name of which is not disclosed by the evidence. On this property was located an elevator building about 40 feet wide north and south and about 140 feet long east and west. The property was divided into two lots by the alley and across the alley on the east lot was a large corn crib 40 feet by 80 or 100 feet. The main building was erected in 1885 and was originally built for a warehouse and was remodeled into an elevator in 1913. The elevator building fronted on Water Street. At the southwest comer of this building was the scale for weighing the grain, and east of the scale was the dump. On the north side of the building was the switch where cars were set in for loading. On the east side of Water Street and abutting the elevator was a concrete sidewalk ten feet wide.

In 1913 and 1914 a levee was built along Water Street in front of this property. This levee was 20 feet wide at the base and 8 feet wide on top, the base being parallel with and abutting the sidewalk. Persons wishing to deliver grain to the elevator turned from Shelley Street onto the levee and drove along it till they came opposite the scale, then turned down the levee and across the sidewalk onto the scale and from the scale onto the dump.

This levee was inadequate to protect the village and it suffered severely from the floodwaters in 1922. The village could not raise sufficient funds to build the levee higher, so when the General Assembly met in 1923 the. citizens appealed to it for aid. The legislature passed an Act appropriating $10,000.00 to be used in improving and strengthening the levee, the appropriation being made upon the express condition that the village appropriate the maximum amount it could raise under the constitution and laws for the same purpose. The Act also provided that the money should be expended under the supervision of the Department of Public-Works and Buildings. The village raised between $2900.00 and $3000.00, all it could under the limitations placed on its taxing powers by the Constitution. Up to July, 1925, nothing had been done by the Department of Public Works and Buildings. The citizens of the village, knowing the appropriation would lapse if the work was not contracted within the next three months, sent a committee to Springfield to urge the officials to let a contract, for the repair of the levee before the appropriation lapsed, and the contract for the work was awarded near the last of September. The village turned its money over to the State officials and the levee was repaired under the supervision of the Department of Public Works and Buildings. The old levee had been constructed to an elevation of 448.5 Memphis Datum and the new, or repaired, levee was raised to an elevation of 452, three and one-half feet higher than the old one.

Claimant purchased the property in question for $5,000.00 October 1, 1924, a year and three months after the money to repair and raise the levee had been appropriated. At the time of the purchase its officers knew the conditions surrounding it and that the levee was to be strengthened and raised. The purchase included all the ground, elevator, scales, cribs and machinery. It operated the elevator until July 1st, 1925, when it leased the property to P. J. Blackburn for one year at a rental of $50.00 per month. At the end of three months, or about October 1, 1925, claimant sold the elevator building to Blackburn for $2000.00, retaining the ground, cribs and scale. Blackburn was building an elevator at Strawn’s Crossing and he took down the one claimant sold him and moved it and the machinery there. This sale was made before the new levee was built, it being built in October and November of last year. All the above facts are disclosed by the evidence but it does not disclose why claimant released Blackburn from his contract nine months before it expired.

Claimant, in its declaration, alleges that it has suffered damage of $4000.00 to its building and $6000.00 damages on account of loss of business. The evidence shows, however, that claimant quit the business July 1st, 1925, leasing the property to Blackburn. When private property is taken or damaged for public use the owner thereof is entitled to just compensation therefor. But the compensation is for the property, not for the business conducted in it. It is not contended that any of claimant’s property was taken or used in the repair of the levee but that its elevator building was rendered useless by the raising, of the height of the levee in front of it. We do not think this contention is supported by the evidence! Claimant’s property consisted of two lots with an alley between them, the entire length east and west being 800 feet. The evidence shows that the scale could have been moved near the northeast corner of the lot on which the elevator stood at a very small cost. This would have enabled persons with grain for the elevator to drive from Shelley Street on to the scale and then down the alley to the south portion of the lot. By moving the scale from the southwest corner of the building there would have been 33 feet between the elevator and the south line of the lot, giving ample space to turn on to the dump. It is very apparent from the evidence and the situation of the property that with the expenditure of but a small sum it could have been just as conveniently used for an elevator after the levee was raised as before.

The work the State did whs done for the benefit of the village, to save it from destruction by floods and the consequent destitution of its citizens and probable loss of life. The construction of the levee was as much for the benefit of claimant’s property as of the other property of the village. If the village were destroyed by floods, claimant’s property would become valueless. It was to prevent such a calamity that induced the legislature to make the donation to the village.

The claim is denied and the cause dismissed.


text:
    J. W. Parker, 1050; Charles Cefala, 1058, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1928.

      Rehearing denied October 24, 1928.

    Frank J. and James T. Burns for claimants.
    Oscar E. Carlstrom, Attorney General; Frank ft. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

As these two claims involve practically the same questions of law and fact, they will be consolidated and heard together.

Claimant, Parker, is the owner of Lot 26 in Block 39 in the Village of Bradley and claimant, Cefala, is the owner of Lot 25 in Block 39 and also of Lots 21 and 22 in Block 41 of said village. These lots all front on Broadway Avenue, a street extending east and west through the village. State Bond Issue Route No. 44, extending from Joliet to Kankakee, passes through the Village of Bradley on Broadway Avenue. This avenue terminated at or near the right of way of the Illinois Central Railroad. Just east of the Illinois Central right of way is the right of way of the New York Central Railroad. On October 8, 1923, the Department of Public Works and Buildings, Division of Highways, filed its application with the Illinois Commerce Commission for a crossing of State Bond Issue Route No. 44 under the tracks of these railroads in the village at the point of intersection of the extension of Broadway Avenue with the tracks and rights of way of the railroads. After a hearing the Commission granted the crossing and apportioned the cost thereof between the railroad companies, the State and the village.

The construction of this subway necessitated the lowering of the grade of Broadway Avenue in front of Block 39, and it has been stipulated that such depression of the grade damaged Lot 26 $1075.00 and Lot 25 $250.00, for which amounts claimants ask awards against the State. In its order apportioning the costs of the crossing the Commerce Commission directed that the village, as its portion of such costs, should secure all the necessary right of way for the extension of Broadway and pay all consequental damages to abutting property owners on account of the depression of the grade of that street.

The State claims this order makes the village liable to claimants for the damages to their lots caused by the depression of Broadway, while claimants insist they are not bound by the order and that the State should pay them the damages caused by such depression.

The control of railroad crossings has been conferred by law upon the Commerce Commission by the Public Utilities Act, approved June 29, 1921. (Commerce Commission v. Omphghent Township, 326 Ill. 65.) The legislature has the power to confer authority over the public highways of the State upon such local officials as it sees proper and to divide such authority in any manner it deems best. (Stevens v. C. B. & Q. R. R. Co., 303 Ill. 49; C. B. & Q. R. R. Co. v. Cavanagh, 278 Ill. 609; Egyptian Trans. System v. L. & N. R. R. Co., 321 Ill. 580.) The public highways of the State include the streets and alleys within the corporate limits of cities and villages.' (The People v. Chicago Tel. Co., 245 Ill. 121.)

Section 58 of the Public Utilities Act provides: “The (Commission shall also have power, after a hearing, to alter or abolish any grade crossing, heretofore or hereafter established; when in its opinion the public safety requires such alteration or abolition; or to require a separation of grades at such crossings; or to require a separation of grades at any proposed crossing where a proposed public highway may cross the tracks of any railroad or railroads; and to prescribe, after a hearing of the parties, the terms upon which such separation shall be made and the proportion in which the expense of the alteration or abolition of such crossings or the separation of such grades shall be divided between the railroad or street railroad companies affected, or between such companies and the State, county, municipality or other public authority in interest: Provided, that nothing in this Act shall be construed to repeal “An Act in relation to the crossing of one railroad by another, ’ ’ approved May 25,1907, in force July 1,1907.

“The Commission shall also have power by its order to require the reconstruction, alteration, relocation or improvement of any crossing (including the necessary highway approaches thereto) of any railroad across any highway or public road, whether such crossing be at grade or by overhead structure or by subway, whenever the Commission finds after a hearing that such reconstruction, alteration, relocation or improvement is necessary to preserve or promote the safety of the public or of the employees or passengers of such railroad. By its original order or supplemental orders in such case, the Commission may direct such reconstruction, alteration, relocation or improvement to be made in such manner and upon such terms and conditions as may be reasonable and necessary and may apportion the cost of such reconstruction, alteration, relocation or improvement between the railroad company or companies and other public utilities affected, or between such company or companies and other public utilities and the State, county, municipality, or other public authority in interest. The cost to be so apportioned shall include the cost of changes or alterations in the equipment of other public utilities affected as well as the cost of relocation, diversion or establishment of any public highway, made necessary by such reconstruction, alteration, relocation or improvement of said crossing. ’ ’ Section 58 further provides that no highway or street shall be constructed across any railroad at grade without having first secured the permission of the Commission.

West Avenue is immediately west of the Illinois Central tracks and Washington Avenue is west of West Avenue, block 39 lying between these two streets. A copy of the findings and orders of the Commerce Commission entered in the proceedings had before it relative to this crossing has been introduced in evidence. It shows the Commission was of the opinion the public safety required the separation of the grades at the crossing of the railroads and Broadway Avenue and that such separation should be effected by the construction of a subway under the tracks of the railroads, and that the approach grades for the subway extended from Washington Avenue easterly to Schuyler Avenue east of the railroad tracks. The Commission found the estimated cost of the work and apportioned the entire expense thereof between the Illinois Central Railroad Company, the New York Central Railroad Company, the North Kankakee Electric Light & Railway Company, the Department of Public Works and Buildings, Division of Highways, of the State of Illinois, and the Village of Bradley. It is clear from the language of section 58 that the Commission had the power to apportion the cost and expense of the construction of the crossing between the companies affected, the State and the village. The statute expressly gives it that power. If the order of the Commission required the exercise of the right of eminent domain to determine the damages to property taken or damaged by the construction of the crossing or- its approaches, such right could have been exercised by the corporation or municipality required by the order to pay such damages. (Sec. 59 Public Utilities Act.) The damages "to the lots of claimants in Block 39 were occasioned by the construction of the approach to the subway crossing. When the Commission ordered that the village pay such damages it became the duty of the village authorities to either agree with claimants upon the amount, or, if unable to do that, to have the damages assessed by a jury as provided by the eminent domain act. The failure of the village to "perform that duty did not relieve it of the obligation to do so. Neither did its failure in that regard cast the burden of such damages upon either the railroads or the State. Such a construction would nullify the orders of the Commission and defeat the purpose and intent of the statute.

Claimants urge, however, that they were not parties to the hearing before the Commission and are, therefore, not bound by its orders. The Commission made no order affecting the rights of claimants. Claimants held their property subject to the right of the public to take or damage it for public use upon making just compensation for such taking or damage. It can make no difference to the owner of property taken or damaged for the public by whom his compensation is paid, whether by the State, some sub-division of the State, or some body corporate authorized by the State. When he has been justly compensated for his property he has received all he has the right to ask. The legislature has unlimited power to authorize the taking or damaging of private property for public use upon making just compensation. In the Public .Utilities Act it has conferred upon the Commerce Commission the power to make orders that will result in the taking and damaging of private property for public use and to direct by whom the compensation for such property shall be paid. This the legislature might lawfully do, and in doing so it took from owners of private property no right. (G. B. & Q. R. R. Co. v. Gavanagh, supra.) The Commerce Commission having ordered the Village of Bradley to pay these damages of claimants, the State is not liable for them and no award therefor can be made by this court.

Claimant, Parker, also asks for $125.00 damages to his building caused by blasting. It is stipulated that the blasting which caused this damage was done by an independent contractor while lowering a sewer. The general rule is that the doctrine of respondeat superior does not apply where the damage is caused by the negligence of an independent contractor. There are exceptions to this general rule but as there is nothing in the stipulation to show that this case comes within any of the exceptions the general rule must be applied and the claim denied.

Claimant, Cefala, also asks $100.00 damages on account of injuries to the sidewalk abutting Lots 21 and 22 in Block 41. The declaration states that the servants of the State engaged in the construction of State Route 44 drove heavy trucks on the sidewalk abutting these lots of claimant and so cracked and demolished it that it will be necessary to replace 16 sections of the walk. We hardly need remark that the sidewalk is not the property of claimant but is a part of the street. But were it a private walk of claimant, his claim could not be allowed. The declaration shows clearly that the injury to the walk was caused by the wrongful conduct of the drivers of the trucks, and the State is not liable for their wrongdoing. The State is never liable for the torts of its officers or agents. This has been announced so often and is such a well known principle that a citation of authorities is unnecessary.

Claimants refer to the consolidated cases of Peterson et al. v. State and say that the decision in those cases is stare decisis of the questions involved in these cases. In that contention claimants are in error. None of the questions involved in these cases were raised or decided in those cases. All the awards made in those cases were made under and because of a stipulation entered into by the Attorney General and the claimants and no questions of law were raised in the cases or decided by the court.

The claims will therefore be denied and the cases dismissed.

On October 24, 1928, upon petition for rehearing the following additional opinion was filed:

As these two cases involve practically the same questions of law and fact and were considered together by the court in the original opinion, the petition of the claimants for a rehearing will also be considered together.

After a careful consideration of the petition for a rehearing in the above cases, we find nothing in the petition that was not carefully considered and passed on by the court in the original opinion in these cases.

The decision heretofore rendered in these cases is, therefore, affirmed, and the petition for rehearing is denied.


text:
    William H. Peterson, 1126; J. A. Peterson, 1127, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1928.

    M. L. Hay, for claimants.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

As these two cases involve the same questions of law and fact they will be consolidated and heard together.

The declaration of J. A. Peterson alleges he is the owner of the East Half of the Northeast Quarter of Section Thirty-three in Township Fourteen North, Bange Five East of the Fourth Principal Meridian in Henry County and that the State by its Department of Public Works and Buildings, in the year 1923, erected and completed a hard road along and on the north side of said land known as Boute No. 28 and another hard road along and on the east side of said land known as Boute 30; that said roads are hard surfaced roads laid upon high grades; “that said grades were and now are so improperly built and erected that they throw onto the North twenty acres of land in times of high water more than the natural amount of water which without said roads so improperly constructed would be thrown onto said land; that said roads are so constructed that the water so thrown onto this plaintiff’s land cannot and does not escape and run off therefrom;” that “by reason of the improper construction of the grades along said land” the land has been rendered unfit for cultivation and damaged $2,000.00 and the crops for the year 1924 of the value of $750.00 were lost to him.

The declaration of William H. Peterson alleges that he rented the aforesaid lands for the year 1924 and had a portion of it in oats. The declaration describes the two roads and alleges “there was no reason for the construction of the bridge in the grading on the north side of the premises and that the construction of said bridge at that location causes water which flows down Indian Creek and which should flow east to flow in upon the land which he farms; ’ ’ that said grade and bridges are so constructed that water runs in upon the land farmed by him both from the north and east sides; that on account of the bridges “being improperly constructed” water came onto the land and was held there by the grade of the road and destroyed his oats crop; “that said loss was caused directly by the improper construction of the hard roads erected by the Department of Public Works and Buildings of the State of Illinois. ’ ’

In his affidavit verifying his declaration William H. Peterson says “he has a good cause of action on account of the improper manner in which the embankments of hard roads number 28 and 30 were constructed” along the east and north sides of the land; “that the improper construction of said hard roads threw surface and channel water upon his land which did not naturally flow thereon;” and “that by reason of the improper construction of said roads” the whole crop of oats was lost to him.

J. A. Peterson asks $2,750.00 damages and William H. Peterson $350.00.

The Attorney General has filed a general demurrer to each declaration.

It is apparent that the damages claimed are based on the negligence or wrongful conduct of the agents of the State in constructing these roads. The State is never liable for the wrongful conduct or negligence of its officers or agents. In Kinnare v. City of Chicago, 171 Ill. 332, on page 335, our Supreme Court announced that doctrine in the following language: “The State acts in its sovereign capacity, and does not submit its action to the judgment of courts and is not liable for the torts or negligence of its agents, and a corporation created by the State as a mere agency for the more efficient exercise of governmental functions is likewise exempted from the obligation to respond in damages, as master, for negligent acts of its servants to the same extent as is the State itself, unless such liability is expressly provided by the statute creating such agency. Town of Waltham v. Kemper, 55 Ill. 346; Elmore v. Drainage Comrs., 135 id. 269; Symonds v. Clay County, 71 id. 355; Town of Odell v. Schrooder, 58 id. 353; Wilcox v. City of Chicago, 107 id. 334; Nagle v. Wakey, 161 id. 387; 15 Am. & Eng. Ency. of Law, p. 1164; 2 Dillon on Mun. Corp., p. 1193.” The Department of Public Works and Buildings is one of the departments of the state government. The Division of Highways of that department has the construction and maintenance of state roads in its charge. If in the performance of the duties required of them in the construction of a state road the employees commit a wrong whereby the person or property of a citizen is injured the tort is that of the man or men who do the unlawful act, whether they be public officers or not, and cannot be regarded as the act of the State. (Cooney v. Town of Hartland, 95 Ill. 516) We know of no exception to this rule. In Gibbons v. United States, 8 Wall. 269, the court said, “No government has ever held itself liable to individuals for the misfeasance, laches or unauthorized exercise of power by its officers and agents, however gross.” In Jorgenson v. State, 2 Ct. Cl. 134, in discussing this question this court said: “This proposition of law, so Avell established, has been consistently followed by this court in the adjudication of all claims that have evnr come before it, and applies with equal force to the cause now on hearing.” Many other cases might be cited announcing the same principle of law, but we deem it unnecessary to do so. It is perfectly clear that neither of the declarations states a cause of action against the State, and unless they do no award can be based upon them.

Claimants seem to recognize the fact their claims are not legal, for they say “they know whatever is allowed them will be alloAved out of equity and good conscience.” The statute creating the court of claims gives it power to hear and determine all claims and demands, legal and equitable, which the State, as a sovereign commonwealth, should, in equity and good conscience, discharge and pay. It is plain from the language of this statute that no claim against the State can be allowed by this court unless there is either a legal or equitable obligation of the State to pay it. Before a claimant can have an award against the State he must show he comes within the provisions of some law making the State liable to him for the amount claimed. If he cannot point to any law giving him the right to an award he cannot invoke the principle of equity to secure the award. Where there is no legal liability equity cannot create one. (10 R. C. L., sec. 132.) Equity is not the court’s sense of moral right; it is not the power of the court to decide a case according to a high standard of abstract right, regardless of the law; it is a complex system of established law. In Murdock Parlor Crate Co. v. Commonwealth, 24 N. E. 855, the Supreme Judicial Court of Massachusetts construed a statute of that state giving the courts of the state jurisdiction of claims against the commonwealth. The statute in question gave the superior court ‘1 jurisdiction of all claims against' the commonwealth, whether at law or in equity.” It was contended that this language made the state “responsible for a tort committed by its servants.” In discussing that question, after citing authorities showing the general rule of non-liability of the state for such torts, the court said: “The act we are discussing discloses no intention to create against the state a new, and heretofore unrecognized class of liabilities, but only an intention to provide a judicial tribunal where well-recognized existing liabilities can be adjudicated. Where wrongs are done to individuals by those who are the servants of the government, those injured are not remediless, as such persons may be sued as may be other citizens for the torts which they commit.” In Schmidt v. State, 1 Ct. Cl. 76, in discussing this question, this court said on page 79: “The law creating this commission does not undertake to create a new liability against the State but provides a method" by which claims against the State may be heard before this commission, and the claim rejected or an award made in favor of the •claimant. ’ ’ And on page 80 of the opinion it is further said: “It is our understanding that in the use of the language ‘to determine the same according to the principles of equity and justice ’ is meant and used with a legal signification and that this commission has no power to make an award in any case unless the facts show a legal or equitable claim against the State. We do not believe it was the intention of the Legislature to leave it discretionary with the commission to make an award in favor of the claimant regardless of the question as to whether or not he had a legal claim against the State. We are of the opinion further, that it would be an exceedingly dangerous precedent to hold that the commission had any such discretion.” See also Jorgensen v. State, supra. To give this statute the construction contended for by claimants would result in giving this court power to hold the State liable for the misfeasance and malfeasance of all its oEcers, the torts of all its servants and agents, and all damages caused by the wrongful exercise of their powers by such officers and agents. We do not believe the legislature intended any such radical and far reaching change in the law when it. enacted the statute creating this court. It follows that the demurrers to the declarations of claimants must be sustained.

We will add that we have carefully read and considered the evidence filed in the cases and do not believe it shows claimants’ damages were caused by the improper construction of the roads, but were the direct result of an unprecedentedly heavy rain.

The claims will therefore be denied and the cases dis> missed.