text:
    (No. 4649
    Cecil F. Paulson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 21, 1957.

    John R. Snively, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

Claimant, Cecil F. Paulson, an inmate of the Illinois State Penitentiary at Joliet, brings this action against respondent to recover $75,000.00 for injuries he sustained when the fingers and thumb of his right hand were cut, while he was engaged in operating a circular rip saw in the Vocational School at the prison on July 28, 1953.

His principal contentions are that the prison authorities assigned him to the Vocational School’s Woodworking Department, and ordered him to assist in the operation of an electric rip saw over his protest; that he was given no instructions or warnings with respect to the manner of operation; that the saw was not provided with a hood, as required by Buie 4 of the Health and Safety Buies promulgated by the Industrial Commission; and that, while guiding a plywood board 16 feet in length through the saw, he sustained his injuries by reason of respondent’s negligence. Claimant further contends that the doctrines of contributory negligence and assumption of the risk are not applicable.

Bespondent contends that claimant was assigned to the Vocational School’s Woodworking Department at his own request in June of 1953; that he was not ordered to operate the power saw; that all inmates in the woodworking shop were instructed in the operation of power tools; that claimant had operated the saw on several occasions; that respondent did provide a hood, but that the inmates operating the saw had removed it; that claimant was contributorily negligent; and that respondent was not guilty of any negligence, which proximately caused the injuries.

The evidence is conflicting in several aspects. The only two witnesses testifying to the occurrence were claimant, in his own behalf, and Lt. Hollis W. McKnight, Director of Vocational Training at Stateville, for respondent.

The only fact agreed upon was that, at the time of the accident, the Woodworking Department was constructing wooden boats out of plywood and other materials, and that claimant was helping to cut the plywood portions of the boat on a ten inch Delta circular saw when the accident occurred. This machine has a flat steel table with a ten inch circular blade running through a slot near the center. It is a floor model saw, about 30 inches high. The plywood portions of the boat were being cut from a piece of % inch plywood, 4 feet wide and 16 feet long. The bottom of the boat, which was being cut at the time of the injury, was to be curved when finished.

Claimant testified that over his protest he was ordered by Lt. McKnight to take a position at the saw, and guide the board as it came in contact with the blade, while it was being pushed from the back by two other men, and pulled by two others after it had gone through the saw. He stated that Lt. McKnight called him, and told him that he should help on the saw; that he took his place at the back of the board, but that Lt. McKnight said, “Paulson, you get down there and guide that through there”. He stated that the other men said they didn’t want to get near the blade, and hold it there. He stated that he replied to Lt. McKnight, “Why should I do it, if nobody else wants to do it?”, and that Lt. McKnight replied to him, “You get down there and do that work, unless you want to be directed over to the corner for punishment”. Claimant stated he interpreted that as meaning that he would be disciplined, if he refused.

On the other hand, Lt. McKnight testified that he at no time ordered claimant to operate the saw. He stated that assignments to the woodworking shop were only made upon the request of the inmates, and that such was the case with respect to claimant. Lt. McKnight further testified that it is not the custom and practice in the woodworking shop for inmates to be ordered to operate a motor driven saw. He stated, “No inmate is ever ordered to operate anything. They are asked, and, if they object, there is no enforcement. .. especially with a power tool”. He specifically denied ordering Paulson to operate the saw, to work on the saw, or to stand near the saw.

Claimant testified that he had never worked on the saw until the occasion of his injury. Lt McKnight testified that he personally had observed claimant on two or three occasions prior thereto operating the saw.

Claimant stated that, at the time of the accident, they were cutting the bottoms for the boats. The bottoms for the boats were wider in the back portion and narrower in the front. According to claimant, the outside margin of the strip of plywood was approximately one-half inch wide at some places, and that, unless this portion of the wood was pulled from the blade, it would stop. He stated that the bottoms of the boats, which they were cutting, were curved, and that they were cutting on a curved line at the time of the accident. During the cutting of this particular board, on two or three different occasions, the blade stopped, as resin accumulated. According to claimant, the men on the end of the board were almost thrown off balance. He was not thrown as much, because he was in the middle, and had the support of the table. On one of these occasions, when the board was stuck, he stated that his right arm was thrown over the saw blade, and the fingers and thumb cut. He further testified that there was no hood on the saw.

Lt. McKnight was not present when claimant received his injury, but came into the work shop immediately thereafter. He testified that the board was still on the saw table when he arrived. He described the board as a piece of plywood, 4 feet in width and 16 feet in length, a 34 inch strip of which was being cut along its entire length.

He testified that the shaping of the board was done by a hand saw, inasmuch as the circular rip saw could not cut the necessary curve.

He further testified that the inmates had not been directed to remove the guard on the saw, but that they had done so, since it was the procedure followed when cutting a long board. He further stated that, in cutting such a board, two men push from behind, and two men pull the board through the saw following a mark on the board.

Claimant testified that he had never been instructed as to the operation of the saw. Lt. McKnight stated that a Lt. Hall of the Department and an inmate instructor gave instructions to all inmates assigned to the Department on the proper handling of tools, but could not recall if he, McKnight, was present when claimant was so instructed.

After considering this conflicting evidence, we do not believe that claimant has borne the burden of proving his case by a preponderance of the evidence.

The most significant factor to us is the conflict with respect to the manner in which the board was being sawed. According to claimant, he and the other inmates were attempting to saw along a curved line in shaping the bottom for a boat. According to Lt. McKnight, the circular rip saw being used could not saw a curve, and that the board would first be cut in a straight line and then shaped and curved with a hand saw.

If claimant’s testimony is true with respect to the manner in which the saw was being operated, then he, as well as the other inmates, were not proceeding properly, and the binding of the wood against the saw, which jerked his hand into contact with the blade, was the proximate cause of his injury, rather than the lack of a hood on the saw.

If, on the other hand, the board was being cut in a straight line in accordance with the proper procedure, then claimant’s version of the accident is untrue, and no credible evidence is in the record before us as to the manner in which claimant’s hand came in contact with the saw blade.

Likewise, claimant’s contention that his assignment to the Woodworking Department was involuntary, thus rendering the doctrines of contributory negligence and assumption of the risk inapplicable, is not established by a preponderance of the evidence, nor, is his contention that he was ordered under threat of punishment to operate the saw so established.

We cannot feel justified in adopting claimant’s testimony over that of Lt. McKnight.

At most, from claimant’s standpoint, the evidence on the issues in conflict is evenly balanced. Inasmuch as claimant must bear the burden of proof, we must hold that he has failed to prove by a preponderance of the evidence that he was in the exercise of ordinary care for his own safety at and immediately prior to the occurrence in question, and has further failed to prove by a preponderance of the evidence that respondent was guilty of negligence, which proximately caused his injuries.

The claim is, therefore, denied.


source: Caselaw Access Project

author: Fearer, J.

license: Public Domain

text:
    (No. 4694
    Anna L. Bloom and Charles M. Bloom, individually, and for the use of the Hawkeye Security Insurance Company, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 21, 1957.

    Robert W. Whitmer, Attorney for Claimants.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claims have been filed by Anna L. Bloom for personal injuries, loss of wages in the sum of $134.40, and medical bills amounting to $19.50; by Charles M. Bloom, individually, for loss of use of truck in the amount of $35.00, and repair of the truck in the sum of $334.08, the amount not paid by the insurance company, being the deductible part of the policy; and, by Charles M. Bloom for the use of the Hawkeye Security Insurance Company. The details are set forth in a Bill of Particulars filed in this cause, all as the result of an accident, which occurred on October 25, 1953, on Illinois Route No. 33, about two miles east of Oblong, Illinois, in Crawford County.

At about 5:30 A.M. on October 25, 1953, Anna L. Bloom was driving and operating a 1948 Ford Pickup truck owned by her husband, Charles M. Bloom, and was on her way to employment in Robinson, Illinois. At said time it was daylight, and visibility was good. She was traveling easterly at a speed of about 40 to 45 miles an hour, and approached an automobile in the eastbound traffic lane, which was traveling at a much slower speed. She pulled out to pass the vehicle immediately in front of her, and, before completing the passing, her truck went out of control and ended up in a field on the south side of the road.

The evidence showed that Mrs. Bloom traveled this road daily from her home in Oblong, Illinois to Robinson, Illinois; that the pavement was damp from dew; that she had just rounded a curve before attempting to make the passing; and that, between 700 and 800 feet east of where she attempted to make the passing there was a detour around a bridge, which was being built, the old bridge having been torn out.

The evidence showed that the detour consisted of an earth fill with a wearing surface of gravel. It was com-, pleted on October 20, 1953, and was open to traffic on October 21, 1953. The maintenance men for the State Highway Department had sprinkled calcium chloride on the gravel, which helped to absorb the moisture out of the air, and tended to bind the gravel and other material for the improvement of the road surface for the detour.

There is evidence that this detour was well marked and well known to Mrs. Bloom. There is evidence, particularly of the Highway Engineer, that sometimes the moisture from the surface of the detour where calcium chloride had been used would track out onto the pavement, but it was never known to appear more than a short distance from the detour from which it was tracked out onto the pavement by vehicles; and that, where Mrs. Bloom’s truck went out of control, there was no evidence of calcium chloride, or other materials, from the detour.

The evidence is silent as to how many feet the truck skidded or rolled on its side into the field on the south side of the road. From all indications, it was for a considerable distance.

It is very evident that Mrs. Bloom had just rounded a curve into the area where the detour signs were placed, and where the traffic would travel over the detour out onto the pavement. There is no indication of any substance in the eastbound traffic lane.

There is no question but what there was dew upon the highway in both traffic lanes, and there was some evidence that dirt and sand had been tracked from the detour into the westbound traffic lane.

From the physical facts, and in considering- the area where the accident happened, and claimant’s (Mrs. Bloom) knowledge of the construction work, which had taken place, and was taking place in the immediate vicinity, it appears that she was driving the truck at a speed which was more than reasonable and proper in view of the facts and circumstances and use of the way, and was attempting to make a passing in an area, which had been under construction, and in the immediate vicinity where there was a detour, which would indicate she was not using due care and caution for her own safety and the safety of others.

It has been well established, and this Court, as well as other courts, have held many times that the state is not an insurer of those traveling upon the highway; and that, where people are aware of a condition, such as in this case, they should use care and caution, and drive with that degree of care and caution, which an ordinarily prudent person would use under the same or similar circumstances.

There is some evidence in the record that sand had been spread within the immediate vicinity of the detour in the westbound traffic lane a short time after the accident. However, it does not appear that sand was spread back 600 to 800 feet to the west where claimant’s truck went out of control. Even so, there is sufficient evidence of the operation of the truck at an excessive speed in an attempt to make a passing in the vicinity of the detour.

The burden is upon claimants to prove their claims by a preponderance or greater weight of the evidence: First, freedom from contributory negligence, in that they did nothing to contribute to the accident resulting in damage; Second, the negligence of respondent, or respondent’s agents, which was the proximate cause of the accident; and, Third, damages.

From the evidence in this case, we find claimants have not sustained the burden of proof as to the sole proximate cause. We believe that it was the speed of the truck, coupled with the dampness, which settles on pavements early in the morning, and not the maintenance of the detour, which was the proximate cause of the accident.

If Mrs. Bloom had not been familiar with all of the surrounding circumstances of the repair work and detour, and had not been over this road before, and, if the traveling public had not been warned of the construction work and the detour by adequate markings, a different question would have been presented.

It is, therefore, the opinion of this Court that the claims of Anna L. Bloom and Charles M. Bloom, individually, and for the use of the Hawkeye Security Insurance Company, should be denied.


text:
    (No. 4716
    John Lilley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 16, 1957.

    James S. Dixon, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, John Lilley, filed his complaint for personal injuries, property damage, and the subrogation of Emmco Insurance Company with the Clerk of this Court on March 15, 1956.

The record consists of the following:

Complaint.
Departmental Report.
Briefs and arguments of claimant and respondent.
Report of Commissioner.

No answer having been filed by respondent, under the Rules of this Court a general traverse or denial of the facts set forth in the complaint shall be considered as filed. (Rule 11.)

At the hearing before the Commissioner, exhibit No. 1 was considered and admitted into evidence as a joint exhibit. The exhibit was a drawing showing the location and elevation of Route No. 87 in Woodford County, Illinois, at the place where the accident occurred.

Under Rule 16 of this Court, the Report of the Division of Highways (page 1) was admitted in evidence, and stipulated to as being a true and correct statement of facts, which, in substance, sets forth weather conditions, location of the accident, with a designation of the station, as shown on the joint exhibit No. 1.

At or about 8:00 A.M. on March 22, 1955, claimant was the owner of a 1951 Chevrolet, which he was driving on said highway in a southerly direction, traveling in the southbound traffic lane. On the evening before it had snowed very hard, and on the morning of the accident the snow was blowing causing drifts to form on the highway, and it was blowing so hard that visibility was practically zero. The accident in question occurred about 3% miles south of the Village of Spring Bay, and % of a mile south of Bluff View School in Woodford County.

Claimant was traveling to his employment in East Peoria, Illinois from his home in Spring Bay. The highway not only was covered with snow, but was very slick - his speed was approximately fifteen to twenty miles per hour, and he was traveling with his headlights burning.

On the morning in question, respondent had in its employ three maintenance men, who were patrolling State-Route No. 87 between East Peoria, Illinois and the Village of Spring Bay. They were Leslie W. Allen, John Garber and Paul Zelch. Just prior to the accident they were plowing snow with a State Highway truck loaded! with cinders, and had a snowplow in front. They were-plowing snow, and placing cinders on the highway. They had traveled up an incline, and, when they reached the top, noticed several cars stuck in the snow on the highway.

Respondent’s witnesses testified that, when the truck left Spring Bay that morning, the lights on the truck consisted of headlights, a blue blinker light on top of the cab, a tail light in the rear, and a large red light on the left hand corner of the box in front.

When they were advised that there were cars stalled on the highway in the southbound traffic lane, they stopped their truck on the highway, and sent Mr. Garber to the north to flag down traffic, and Mr. Belch and Mr. Allen went to the south to assist in clearing the highway, and aid drivers in getting their cars through the snowbank.

It was impossible to pull over to the side of the road, because at the top of the incline the banks were steep on the right hand side. Before leaving the truck, they set its brakes. When the truck was stopped on the highway, the lights referred to were turned on and burning.

After assisting the drivers of the stalled cars to the south, they went back to the truck. Mr. Garber had gone back by the school house, and was visiting with a Mr. Meadows, who testified for claimant. Mr. Garber had stopped Mr. Meadows, who said that he could see about two or three car lengths ahead, when traffic approached from the south traveling north on the opposite side of the highway. Mr. Garber advised Mr. Meadows that the road must be open, and he got into the car with Mr. Meadows, and rode up to his truck.

There were no flares placed before or after the state truck. It does appear, however, that there were lights on the state truck, and, if it had not been for the poor visibility caused by the blowing of snow across the highway, the truck would have been visible to oncoming traffic traveling in the same direction.

It appears from the record that, at the time of the accident, there were still a few cars stalled to the south of the state truck.

Claimant approached at a speed of approximately fifteen to twenty miles per hour. He testified that he could not see the truck standing on the highway. However, his witness, Mr. Meadows, testified that he could see the truck standing on the highway. He also could see cars approaching with lights on. When asked whether or not the truck had any lights burning, he testified that he did not know. Claimant testified that he never saw the truck at all.

Claimant’s car ran into the truck, which caused it to run forward some eleven feet.

There was testimony that the automobile was a total wreck, and could not be repaired. Emmco Insurance Company was subrogated to the rights of claimant in the amount of $700.00. The car was salvaged for $132.50, leaving a net loss to Emmco Insurance Company of $567.50. Claimant’s deductible was in the amount of $50.00.

The Bill of Particulars attached to the complaint sets forth doctor, hospital and ambulance bills in the sum of $124.00. There is testimony as to the personal injuries of claimant, for which claim is filed in the amount of $7,500.00.

In reading the record in this case, we are of the opinion that claimant has not maintained the burden of proof required, as there is no question but what the weather conditions and visibility were extremely poor. Claimant traveled into this area knowing the conditions at a speed of fifteen to twenty miles per hour. We are cognizant of the fact that under normal conditions this Would be a slow speed. However, under the facts in this case, we would consider the speed to be excessive in view of claimant’s testimony that visibility was zero.

In the case of Dirksmeyer vs. Barnes, 2 Ill. App. (2d) 496, at page 506, the court, in quoting from the case of Hicks vs. Swift & Co., 285 Ill. App. 1, had this to say:

“The reasonableness of the speed of appellant’s car is not to be determined by the fact that he was driving at his usual speed, but is to be deter-. mined by the jury in the light of all the facts and circumstances in the case. The existence of a sudden emergency or imminent peril does not excuse the driver of the vehicle from using that degree of care and caution, which an ordinary pmdent and careful person would have exercised under the like facts, circumstances and emergency, and whether such degree of care and caution was so exercised was for the jury to determine.”

As to the negligence of respondent, we are taking into consideration? the hazardous condition of the highway, and the duty of the state maintenance men to clear the highway and render it safe for travel by the public. Because of the fact that many cars were stalled, and the traffic lane in which the truck was parked and in which claimant was traveling was blocked, and only one lane of traffic was open at the time of the accident, it was the duty of respondent’s agents to clear the highway, which they were attempting to do at the time. They did station a man to the north of the truck, who, at the time of the accident in question, was standing to the west of the state truck.

We are also taking into consideration the fact that claimant did not see the truck, and did not testify that there were no lights burning on the truck, as testified to by respondent’s agents. Claimant’s only other witness as to the occurrence did not testify that there were no lights burning on the truck, stating that “he did not know”.

It is apparent from the record also that an emergency was created by the stalled cars, and the record is silent, except as to respondent’s testimony, that the truck could not be parked on the shoulder on the west side of said highway, due to the steep embankment and the snow thereon.

As to the placing of flares along the highway, in considering the fact that claimant did not see the truck or any lights, certainly he would not have seen flares burning. These men were busy at the time in trying to warn •traffic, and to remove stalled cars. We are of the opinion that it was not the negligence of respondent’s agents in failing to place flares along the highway, if they had time to do so, which was the proximate cause of the accident in question.

It is the order of this Court that claimant’s claim for his personal injuries, and the deductible portion of his policy in the amount of $50.00, and also the subrogation of Emmco Insurance Company, whose claim was presented by claimant, be, and they are hereby denied.


author: Per Curiam.

text:
    (Nos. 4569,4570,4578,4579, 4584,4586, 4600, 4604, 4644, 4713
    Schutte and Koerting Company, A Corporation; Beaumont-Birch Company, A Corporation; Singh Company, A Corporation; George Willy Hardware; Joseph Cronin, d/b/a Cronin Electric Company; Roots-Connersville Blower Division of Dresser Industries, Inc., A Philadelphia Corporation; Crane Company, A Corporation; Minneapolis-Honeywell Regulator Company, A Foreign Corporation Authorized to do Business in Illinois; Farris Engineering Corporation, A Corporation of the State of New Jersey; Bradley Supply Co., A Corporation, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 20, 1957.
    Rappaport, Clorfene and Rappaport; Winston, Strawn, Smith and Patterson; Felix M. Buoscio; Ensel, Martin, Jones and Blanchard; Musgrave, Ewins, Price and Note and John H. Hanson; Blum, Jacobson and Shkoler; Brooks and Grady; and David M. Ravin, Attorneys for Claimants.
    Latham Castle, Attorney General; Marion G. Tiernan and Bernard Genis, Assistant Attorneys General for Respondent.
   Per Curiam.

These consolidated cases, known and referred to as the Coal Products cases, all involve claims for compensation against the State of Illinois, growing out of the rendering of various services and furnishing of materials at the experimental Pilot Plant, which was constructed and operated at the instigation of the Illinois Coal Products Commission. The claims are alleged to total approximately $210,000.00.

At the outset, let us say that this consolidated case involves a voluminous transcript of testimony, together with innumerable exhibits, and is replete with legal and constitutional questions of fundamental and far reaching import.

The result, which we have arrived at after untold hours of consideration, represents our best judgment from the standpoint of the rights of the claimants on the one hand, and the people of the State of Illinois on the other within the Constitution and laws of the State of Illinois.

The Illinois Coal Products Commission, a temporary non-departmental legislative commission, was first created by the General Assembly in the year 1943. The total sum of $35,000.00 was appropriated to the Committee for the purpose of carrying out a demonstration test program for the investigation of and experimentation with Illinois coal products. In each of the years of 1945, 1947, 1949 and 1951, the Commission was created by an identical act of the General Assembly, and in each act a certain specified sum was appropriated for the identical purposes expressed in the 1943 act. Bach of these biennial appropriations marked the extent of the Commission’s power to expend funds during the particular biennium, with the exception of the 1949-1951 biennium, when a deficiency appropriation was also enacted by the 67th General Assembly, and approved June 4, 1951.

On December 1, 1949, the Illinois Coal Products Commission, through its Chairman, Senator Roland V. Libonati, and the claimant, Singh Company and Dr. Alamjit D. Singh, executed a document entitled, “Agreement Between Dr. Alamjit D. Singh, As Chemical Engineer, and The Singh Company With The Coal Products Commission”.

It was admitted into evidence as claimant’s exhibit No. 1, and reads as follows:

“THIS AGREEMENT made and entered into this 1st day of December, 1949 between the SINGH COMPANY, a corporation duly organized under the laws of the State of Illinois and having its principal office and place of business in the City of Chicago, County of Cook in said State, hereinafter referred to as the ‘COMPANY’ and the ILLINOIS COAL PRODUCTS COMMISSION, a Commission created by the General Assembly of the State of Illinois pursuant to Senate Bill 493, entitled ‘An, Act Creating a Commission to Carry Out a Demonstration Test Program for the Investigation of and Experimentation with Illinois Coal Products and Making an Appropriation Therefor’, (Approved June 30, 1949), hereinafter referred to as the ‘COMMISSION’,
WITNESSETH THAT:
Whereas, the Commission is desirous of initiating and completing the program for coal demonstration tests provided for under said Act, and is further desirous of encouraging individual companies to co-operate with and continue said program; and
Whereas, the Commission, in the conduct of such program, is empowered under said Act, to employ such assistance and assistants as may be necessary, including a commercial research laboratory, and the SINGH COMPANY is organized to operate such a commercial laboratory, and the Commission is of the opinion that the employment of the SINGH COMPANY, including the services of DR. ALAMJIT D. SINGH would be of great advantage to the accomplishment and success of said program; and
Whereas, said Company, together with DR. ALAMJIT D. SINGH, are willing to undertake and to conduct such demonstration test program contemplated by said Act, under the terms and conditions thereof.
Whereas, the Commission in its desire to undertake this study and have test experiments conducted for the purpose of improving the marketability of Illinois coal by a chemical treatment formula perfected by DR. ALAMJIT D. SINGH, and further desires to employ DR. ALAMJIT D. SINGH to operate, regulate and supervise a pilot plant as chemical engineer in order to undertake the study of Illinois coals and coal products for the purpose of determining the commercial feasibility of making Illinois coals more available for industrial use.
Now, Therefore, for and in consideration of the mutual convenants and agreements herein contained, IT IS MUTUALLY AGREED by and between the parties hereto as follows:
1. The Company, with DR. ALAMJIT D. SINGH, whose peculiar talents lie in this field, having perfected a formula and process experimentally tested, shall, under the direction of the Commission and as part of carrying out the provisions of said Act of the General Assembly, conduct a demonstration test program for the investigation of and experimentation with Illinois coal and coal products for the purpose of determining the commercial feasability of making Illinois coals more available for industrial and domestic use as a combustion agent and as a raw material, in view of its declining market for manufacturing and metallurgical purposes.
2. In connection with said program, the Company through DR. ALAMJIT D. SINGH agrees to supervise the construction, installation and operation of such laboratory and other equipment as directed by the Commission at 117th and Ewing Avenue, Chicago, Illinois, as they may deem advisable.
3. The demonstration test program, herein provided for, shall terminate when the sum of $100,000.00 shall have been expended by the Commission in connection therewith, and in any event on or before the 30th day of June, 1951; but, after the termination of said program herein provided, a future similar program may be conducted, or instituted, based upon the continued operation of the apparatus herein provided for, by such individuals or concerns desiring to participate by contribution or collateral services to the purposes of the program, and shall hereinafter collectively be referred to as the “PARTICIPANTS”, under the terms and provisions of a certain agreement of even date herewith made and entered into between the Company and said Participants; it being understood and agreed that all such apparatus, by gift or purchase, shall be and remain the property of the Commission, except the buildings loaned to the program.
4. The Company shall retain all patent rights resulting from the work performed under this contract and the experiments connected therewith, but shall make available, without charge, non-assignable personal licenses to use in Illinois only any such patent rights to companies and individuals operating in the State of Illinois.
5. The Commission as and for compensation to said Company for carrying on said program as herein set forth will pay to said Company on progress requisitions for said Company, and said Company will accept in full payment hereunder the following amounts:
(a) On or before the tenth day of each calendar month an amount equal to the total sum expended or committed to be expended by the Company for services rendered, materials, supplies and equipment, and in addition thereto proper charges for overhead, administration and other reasonable charges incidental to conducting said work performed by said Company hereunder during the preceding calendar month, (until said amount in the sum of $100,000.00 as appropriated under said Act is expended).
(b) On or before the 1st day of December, A. D. 1949, the SINGH COMPANY entered an agreement for the lease with option to purchase certain acreage located at 117th and Ewing Avenue, the same having been properly prepared by slag-fill for the erection of the buildings necessary to be used in conducting this experiment. Such expenses incidental thereto and taxes thereon shall be deemed an expense of the Commission.
FURTHER WITNESSETH, that the Commission hereby hires and employs DR. ALAMJIT D. SINGH and the SINGH COMPANY, in accordance with the following added agreements:
The chemical engineer agrees:
1. To make all preliminary plans, drawings and sketches for the placement of machinery.
2. To cooperate with the Commission in procuring equipment, materials, machinery, fuel products, etc., to be used in tests at the lowest possible cost to the Commission either upon a lease, lend or cash basis for the duration of the experiments.
3. To submit twelve (12) copies of a monthly report to be given the Commission on the progress of the work as might be necessary in connection with familiarizing interested citizens with the problem.
4. The chemical engineer agrees to make such plant changes, as are required, and to prepare all detailed plans and submit the same to the Chairman of the Commission for approval.
5. To consult with the Commission or its Chairman on all costs arising from the operation of the plant or its maintenance.
6. When operation is begun to place a competent and experienced person for inspecting all materials and work performed to represent the Commission.
7. The chemical engineer will also prepare the monthly estimates of cost upon which the Commission must draw upon its funds. At least once each month during the active operating period, if required, or more often upon the request of the Commission to give all findings of tests necessary and in addition an inspection in order to determine whether the work performed and the equipment’s use meets with the purposes of the Commission's existence.
The personal services of DR. ALAMJIT D. SINGH are the essence of this contract. Upon his withdrawal, the Commission may cancel the contract agreements upon written notice to the SINGH COMPANY.
The parties hereto may at any time cancel these Articles of Agreement by giving written notice for its termination within three (3) months of the date of the notice.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by the duly authorized officers and representatives of said parties the day and year first above written.”

Dr. Singh, a chemical engineer, who later became president of the Singh Company, several years prior to the execution of this agreement had been requested by a previous Illinois Coal Products Commission to prepare a report on a process for improving the quality of Illinois soft coal, and making it more marketable.

He advised the members of the Commission of the work then being conducted in this field by the Institute of Gas Technology, and described the process, which he had developed, known as the Singh Process.

The Coal Products Commission, after considering this report, entered into a contract with the Institute of Gas Technology for further work on the Singh Process in October, 1944. At that time, Dr. Singh was supervisor of The Coal and Gasification Division of the Institute of Gas Technology, which was affiliated with the Illinois Institute of Technology.

In 1947, Dr. Singh left the Institute, and formed the Singh Company, An Illinois Corporation. In August of 1948, the Illinois Coal Products Commission requested Dr. Singh to draw up tentative plans for a pilot plant, together with a cost estimate. This contact between Dr. Singh and the Commission eventually culminated in the agreement heretofore referred to in December, 1949.

The term of this contract extended throughout the 1949-1951 biemiium, and during this period the principal activities of Dr. Singh and the Singh Company was in the designing and constructing of the pilot plant, a photograph of which was introduced as an exhibit by claimant, Singh Company.

Two of the claimants in this consolidated case, namely, Minneapolis-Honeywell Regulator Company, a Foreign Corporation, and the Beaumont-Birch Company, a Corporation, contend that they entered into an agreement through Dr. Singh, President of the Singh Company, to furnish certain materials during the 1949-1951 biennium; that such materials were delivered and accepted by Dr. Singh on behalf of and as an agent of the Coal Products Commission, and that their respective statements were never paid.

Minneapolis-Honeywell Regulator Company’s claim is founded upon two written exhibits, exhibit No. 1 is a letter, dated April 13, 1951, signed by Dr. Singh, accepting a Minneapolis-Honeywell quotation in the amount of $20,971.05 for certain instruments, panel mounted equipment, locally mounted equipment, panel-board with instruments mounted and control valves to be delivered to the Singh Company at the pilot plant location on or before September 1, 1951.

Exhibit No. 2 is a like letter, dated May 21, 1951, signed by Dr. Singh accepting a Minneapolis-Honeywell quotation in the amount of $1,206.28 for certain thermocouple assemblies to be delivered to Singh Company at the pilot plant location on or before September 1, 1951.

Both of these letters contained the direction that they should be invoiced to the Illinois Goal Products Commission in care of Singh Company.

The evidence offered at the hearing established that these materials were delivered by Minneapolis-Honeywell, accepted by Dr. Singh, utilized in the construction of the pilot plant, and were satisfactory in all respects. It further appeared from the testimony of Dr. Singh that bids were solicited from five other companies prior to the acceptance of the Minneapolis-Honeywell bid.

A portion of this material was not delivered until after September 1, 1951. This time requirement, however, appears to have been extended by agreement of the parties. Respondent made no attempt to dispute the fact that these materials were furnished in accordance with the agreement. Minneapolis-Honeywell contends that the Singh Company and Dr. Singh were acting as agents of the Illinois Coal Products Commission, and that, therefore, the contract was binding on the Commission. The respondent, however, contended during the hearings that the amount claimed for these materials, or at least the greater portion thereof, in the sum of $20,976.05, yas paid by a state warrant issued by the Auditor of Public Accounts to the Singh Company on the Singh Company’s invoice of July, 1951 to the Coal Products Commission as “monies expended or committed to be expended by the Singh Company for materials, etc.”, and that, therefore, the State of Illinois has paid this obligation, and owes Minneapolis-Honeywell nothing.

Minneapolis-Honeywell, in answer to respondent’s position, contends that, even though such sum was disbursed to the Singh Company by a state warrant, such a payment represents payment of that sum by the State of Illinois to the agent of the Coal Products Commission, and, therefore, should not be held to bar the claim of Minneapolis-Honeywell, which company has received no payment in any amount.

Dr. Singh’s explanation of this situation was that such amount was included on the Singh Company’s invoice to the Coal Products Commission, but that it was understood that Minneapolis-Honeywell should receive no payment until the equipment was delivered, even though the contract for the material had been entered into, and was binding.

He further testified that the money so received by the Singh Company on its invoice of July, 1951 to the Commission was expended in the payment of obligations of the Coal Products Commission to other creditors and employees.

Counsel for the Singh Company acknowledge in their brief that the Singh Company received $20,971.05 invoiced by it on the Minneapolis-Honeywell order, and recognizes that respondent has a set-off in that amount against the Singh Company claim. Singh Company also confirms that Minneapolis-Honeywell has not received payment, and that its claim is proper. -

This then simply resolves itself to one question, namely, was the Singh Company (and Dr. Singh) the agent of the Illinois Coal Products Commission, or was the Singh Company and Dr. Singh independent contractors'? If the relationship was that of principal and agent, then, of course, the payment to the Singh Company of the major portion of the Minneapolis-Honeywell invoice would in no way bar Minneapolis-Honeywell in its claim. On the other hand, if the relationship between the Coal Products Commission and Dr. Singh and the Singh Company was that of independent contractor, then the obligation of respondent was satisfied by payment to the Singh Company, and Minneapolis-Honeywell’s cause of action would lie against the Singh Company instead of the State of Illinois.

This then involves a construction of the 1949 contract between the Commission and Dr. Singh’ and the Singh Company. In construing this contract, we must look to the activities of the parties thereto, as well as the bare terms thereof, and will give weight to the interpretation that the parties to the contract have made with respect to its terms.

As we stated in J. I. Simmons Company, Inc., vs. State of Illinois, 21 C.C.R. 503 at 516: “The courts of this state have held that the interpretation of a contract made by the parties themselves will be given great weight”.

First, it appears from the terms of the contract that the Commission did not place the complete control and responsibility into the hands of Dr. Singh or the Singh Company to build the pilot plant. It provided in paragraph 2 that “the Singh Company through Dr. Singh agrees to supervise the construction, installation and operation of such laboratory and other equipment as directed by the Commission at 117th and Ewing Avenue, Chicago, Illinois, as they may deem advisable”. It thus appears from the terms of the contract that the Commission would exercise the ultimate control of building the pilot plant. The evidence established that the Commission contracted directly with the Cronin Electric Company to provide the electrical work, and with the Illinois Concrete Construction Company to supply the necessary concrete work and material.

Secondly, there was no contract price agreed upon for the completed pilot plant. It appears from the testimony that this was an experimental type plant, which was not susceptible of being thus subject to a bid for a finished structure, but required considerable flexibility in the construction thereof.

Thirdly, the method of payment for the materials purchased was provided in paragraph 5 of the contract, being that the Singh Company would be compensated each month in an amount equal to the total sum expended, or committed to he expended, by the company for services rendered, materials, supplies and equipment.

Fourth, the materials were to be procured by Dr. Singh, who agreed “to cooperate with the Commission in procuring equipment, materials, machinery, fuel products, etc., at the lowest possible cost to the Commission”; and was to make “such plant changes as are required, to prepare all detailed plans, and submit same to the Chairman of the Commission for approval”; and to “consult with the Commission or its Chairman” on all costs arising from the operation of the plant or its maintenance. He was to place a competent and experienced person for the purpose of inspecting all materials and worked performed, and to represent the Commission; he was likewise to prepare monthly estimates of cost “upon which the Commission must draw upon its funds ’’, and to perform inspections “in order to determine whether the work performed and equipment use meets with the purposes of the Commission’s existence”.

Fifth, the essence of the contract was the personal services of Dr. Singh, and that the Commission might cancel the agreement with Singh Company in the event of Dr. Singh’s withdrawal.

Sixth, the contract was to terminate “when the sum of $100,000.00 shall have been expended”. This provision, of course, was of absolute necessity in view of the fact that the Commission’s own power to expend funds was limited to the amount of the 1949 appropriation, which was the sum of $100,000.00.

It is, therefore, apparent to us that Dr. Singh and the Singh Company were agents of the Coal Products Commission and not independent contractors. An additional element, which indicates a general recognition by the parties of this fact, is the very manner in which the numerous suppliers of materials invoiced their respective items. In each instance they were directed to the Illinois Coal Products Commission in care of the Singh Company.

Over the period of time that the operation was in effect, this method of invoicing was acquiesced in by the Commission. Although this is not controlling on the question, it is a strong factor in its determination, and indicates the intention of the parties.

This problem of distinguishing between the relationship of independent contractor and principal and agent has long been a difficult one. No single factor of this relationship is determinative. The right of control, which one has over another, who is performing services for him, is, in many instances, the determinative factor.

Here, the right of control, which the Commission had over the entire project in all of its aspects, was definite and certain.

We, therefore, hold that the Singh Company and Dr. Singh were the agents of the Illinois Coal Products Commission, and had the authority to bind the Commission in purchasing the materials for the pilot plant if, and only if, the Commission had the power and authority to make the purchases at that time.

With respect to this question, it is fundamental that all governmental agencies, departments and commissions are strictly circumscribed in their powers and authorities by the Constitution and statutes of the State of Illinois.

Chap. 127, Sec. 166 of the Ill. Rev. Stats., (1955 State Bar Association Edition), provides as follows:

“§ 166. Indebtedness exceeding appropriation prohibited.
No officers, institution, department, board or commission shall contract any indebtedness on behalf of the state, nor assume to bind the state in an amount in excess of the money appropriated, unless expressly authorized by law. 1919, June 10, Laws 1919, p. 946, §30.”

In the case of Fergus vs. Brady, 277 Ill. 272 at pages 279 and 280, the Supreme Court stated:

“By the Criminal Code the making of a contract in excess of the amount of an appropriation subjects the offender to a fine not exceeding $10,000 and removal from hi's office, trust or employment. No right whatever can grow out of the commission of a crime and by the plain language of the Constitution every claim or contract is utterly void if not within the amount of appropriation already made, unless there is express authority of law for the creation of the debt or claim or the making of the contract. . . . An express authority is one given in direct terms, definitely and explicity, and not left to inference or to implication, as distinguished from authority, which is general, implied or not directly stated or given. An example of such express authority is found in one of the deficiency appropriations to the Southern Illinois Penitentiary, which had been paid, and serves only as an illustration. The authorities in control of the penitentiary are required by law to receive, feed, clothe and guard prisoners convicted of crime and placed in their care, involving the expenditure of money,, which may vary on account of the cost of clothing, food and labor beyond the control of the authorities, and which could not be accurately estimated in advance for that reason, or by determining the exact number of inmates. To extend the meaning of tire constitutional requirement that there shall be express authority of law for the creation of a debt or the making of an agreement or contract in excess of an appropriation for the purpose beyond the meaning we have given to it would destroy and nullify the provisions of the Constitution.”

In Coleman Oil Company vs. State of Illinois, 10 C.C.R. 323, the recognized rule regarding the allowance of contractual claims is set forth:

“We have held in numerous cases that, where supplies have been furnished to the state on the order or request of an official authorized to purchase the same, and a bill therefor has been submitted within a reasonable time, but the same has not been approved and vouchered for payment before the lapse of the appropriation from which it is payable, without any fault or neglect on the part of the claimant, an award for the reasonable value of such supplies will be made, where at the tíme of the purchase thereof, there were sufficient funds remaining unexpended in the proper appropriation to pay for the same.”

Therefore, it must appear that, at the time the materials furnished by the Minneapolis-Honeywell Regulator Company were contracted for, there were then unexpended funds in the appropriation covering the 1949-1951 biennium.

As we have heretofore stated, there had been appropriated in 1949 the sum of $100,000.00 to be expended by the Coal Products Commission in that biennium. Subsequently, in 1951, an additional $88,000.00 was provided by a deficiency appropriation.

Apparently, sufficient funds were available at the time the contract was entered into with Minneapolis-Honeywell. The Singh Company had invoiced the Commission for $20,971.05 of the amount contracted, and had received a state warrant covering that amount. Respondent made no attempt to establish that the funds were depleted when the contract was made for the balance of the materials. If such was the case, respondent could have easily brought such fact to our attention. Not having done so, we assume that there were sufficient funds available for such purpose at that time.

Minneapolis-Honeywell vouchers were submitted at the various times the equipment was delivered. It, therefore, appears that the claims of the Minneapolis-Honeywell Regulator Company should be allowed in the amount of $22,177.33.

The claim of the Beaumont-Birch Company is based on claimant’s exhibit No. 1, which was a letter signed by Dr. Singh, dated January 8, 1951, accepting the Beaumont-Birch Company’s quotation of $2,000.00 for a vibro automatic weighing scale. This company was also directed to invoice the Illinois Coal Products Commission. Dr. Singh testified that this scale was received at the pilot plant location, was placed in use, and that bids were solicited from other firms prior to the acceptance of the Beaumont-Birch Company’s bid.

The Singh Company billed the Coal Products Commission for the amount of $2,000.00 in their invoice of February 10, 1951, and received payment by state warrant. Beaumont-Birch, however, was never paid for the reasons stated regarding the claim of Minneapolis-Honeywell. The Singh Company in its brief also acknowledges that the claim should be paid to the Beaumont-Birch Company, and that respondent, State of Illinois, should have a set-off against the Singh Company claim in the amount of $2,000.00.

Obviously, there were sufficient funds available in the appropriation applying to the 1949-1951 biennium when the indebtedness was contracted, inasmuch as the Singh Company was paid on their billing, which included this amount.

Therefore, the Beaumont-Birch Company’s claim in the amount of $2,000.00 should be allowed.

The other claims involved in this consolidated case all arose after the expiration of the 1949-1951 biennium, and, therefore, it is necessary to consider the question as to what authority the Illinois Coal Products Commission and Dr. Singh and the Singh Company had at the respective times the materials and services were contracted for or furnished.

The claimants contend that the 1949 contract was extended verbally, and that the operation and construction of the pilot plant continued under the same procedure as it had during the previous biennium. Respondent contends that the oral extension of the 1949 contract is null and void. It is respondent’s position that public policy does not permit individual members of a board to act without authority from such board itself acting at a regular or special meeting.

The record reflects that, on June 30, 1951, an enactment of the General Assembly was approved by the Governor, which enactment was identical to the 1949 enactment, and provided as follows:

“An Act. creating a commission to carry out a demonstration test program for the investigation of and experimentation with Illinois coal products, and making an appropriation therefor.
Be it enacted by the People of the State of Illinois, represented in the General Assembly:
Section 1. There is created a commission consisting of two members of the Senate to be appointed by the President pro tempore thereof, two members of the House of Representatives to be appointed by the Speaker thereof, four members to be appointed by the Governor, two of whom shall have had experience in the development and production of coal. The commission shall conduct a demonstration test program for the investigation and experimentation with Illinois coal and coal products for the purpose of determining the commercial feasibility of methods having commercial possibilities and promise. In the conduct of such program, the commission may employ such assistance and assistants as may be necessary, including commercial research laboratories, to construct experimental ovens and to conduct tests with Illinois coal. The State Geological Survey shall cooperate with the commission, and may, from time to time, give advice upon the commission’s work and the tests herein authorized. The members of the commission shall receive only their actual and necessary expenses. The commission shall report the results of the work herein authorized, together with its findings and recommendations, to the Sixty-Eighth General Assembly.
§ 2. The sum of $115,000, or so much thereof as may be necessary, is appropriated to the commission herein created, for the administration of this Act, as follows:
For all expenses incident to the construction, installation and operation of experimental ovens and accessory equipment, salaries and wages -----------------------------------------------------------------------------------------$ 100,000
For travel and other expenses of the commission_____________________________ 15,000

It also appears from the record that the Singh Company, on August 10, 1951, wrote a letter to the Illinois Coal Products Commission, addressed to the Chairman of the Commission, Senator Roland V. Libonati, confirming a verbal direction of the Chairman to continue the work on the pilot plant, and requesting that the contract be extended and renewed.

Senator Libonati testified that he considered the 1949 contract orally extended, and that he told Dr. Singh “to continue his work, and that the terms of the agreement were the same as those set forth in the 1949 contract”. He further testified on cross-examination by respondent that “We extended the contract with Singh Company from the original contract”.

Dr. Singh also, on August 10, 1951, submitted a budget estimate in writing to the Commission.

No evidence was offered by respondent rebutting this testimony, nor did respondent make any attempt to establish that the oral extension so testified to was not the action of the Commission. The records of the Commission are in the control of the State of Illinois, and, if the contents thereof supported respondent’s contention that the extension was merely the action of the Chairman of the Commission, and that no action was taken by the Commission, as such, then certainly respondent could have easily established this defense. In the absence of any such evidence, we must presume that this action orally extending the 1949 contract was that of the Commission itself, since claimant’s testimony was at least prima facie evidence of such fact.

Although the 1949 contract and the oral extension thereof leave much to be desired in many of its provisions, there is no question but that the Commission authorized the Singh Company to act as its agent in procuring the material and services necessary to construct the pilot plant.

There can be no doubt but what the Commission was authorized by the General Asembly to engage in this activity. The 1951 Act recreating the Commission provided: “In the conduct of such program, the Commission may employ such assistance and assistants as may be necessary, including commercial research laboratories, to construct experimental ovens and to conduct tests with Illinois coal”. The Commission was limited, however, to the specific sum of $100,000.00 in carrying out this project through the 1951-1953 biennium. Upon the expenditure or commitment of expenditure of such sum, the power and authority of the Coal Products Commission to incur financial obligations immediately ceased. It, in no way, could bind the State of Illinois beyond the sum of $100,000.00 in such biennium.

■ In order for any claimant in this case to recover, it is essential that each establish that, at the time the materials and services furnished were contracted for, the Coal Products Commission had the power and authority to contract directly or through their agent for such materials and services, and to incur such an expense.

There appears in the record of this case a certificate of the Auditor of Public Accounts showing the payments made from this appropriation. The appropriation, as of September 30, 1953, lapsed, showing a balance of $64.18. From the certificate of the Auditor, it is apparent that three vouchers, upon which state warrants were issued and charged against this appropriation, should have been charged against the previous appropriation covering the 1949-1951 biennium.

It is noted that voucher No. 2, warrant No. 845707, in the amount of $8,897.46, payable to the Singh Company, covers statements of the Singh Company dated May 10, 1951 and July 10, 1951 for services rendered, and expenses incurred and committed to be incurred during the periods of April 1, 1951 to April 30, and from June 1 through June 30, 1951.

Voucher No. 4, warrant No. 847293, in the amount of $29,864.83, payable to the Cronin Electric Company, covers statements of the Cronin Electric Company for labor and materials. It appears from the Auditor’s certificate that $4,320.00 of such amount was for labor performed during the period of June 1, 1951 to June 29, 1951.

Voucher No. 11, warrant No. 896136, in the amount of $41,532.86, payable to the Singh Company, covers two statements of the Singh Company, one of which was dated June 5,1951 for services rendered, and expenses incurred and committed to be incurred for the period of May 1 through May 31, 1951, in the total amount of $22,609.23.

It, therefore, appears that the total sum of $35,826.69 was not chargeable against the $100,000.00 appropriation of the Coal Products Commission to be expended during the 1951-1953 biennium, regardless of the fact that the' then Auditor charged them against that appropriation.

Sec. 145, Chap. 127, Ill. Rev. Stats., (1951 State Bar Association Edition), provides in part as follows: “No warrant shall be issued by the Auditor of Public Accounts for the payment of money from the State Treasury without the presentation of itemized vouchers showing that the obligations have been incurred against such appropriation”.

In determining whether or not an appropriation is depleted, although the Auditor’s account will be considered prima facie evidence of the status of the account, it will not be conclusive on the question, if it appears from the evidence that amounts were mistakenly charged against the appropriation.

It follows that, to the extent of $35,826.69, the issuance of the above described warrants did not deplete the 1951-1953 biennial appropriation of the Illinois Coal Products Commission, and consequently' did not restrict the power and authority of the Commission to expend that amount.

In determining the merits on the claims before us, it is necessary to examine each claim to determine not only the amount and validity of the respective claim, but also, and equally essential, the date each became an obligation of the Coal Products Commission must likewise be determined. It is obvious that the total amount of these claims greatly exceeds the amount of the appropriation.

Therefore, the order in which these claims are established to have become obligations will determine those which are allowable, and those which are not.

We have examined these claims both individually and collectively, and have found that the following claimants have established by a preponderance of the evidence the elements necessary to a recovery.

Sehutte and Koerting Company, A Corporation, sold and delivered to the Illionis Coal Products Commission, through its agent Singh, on February 4, 1952, a certain cast iron Fume Scrubber for the sum of $148.00. This amount represents payment in full of this company’s claim.

George Willy Hardware sold and delivered numerous items of hardware to the Coal Products Commission, through its agent, the Singh Company, during the period from August 27, 1951 through December 5, 1951, the value of such materials being $331.71. This claimant also furnished material of a like kind from September 8,1952 to December 15, 1952 in the amount of $95.20. A claim for those items cannot be allowed, inasmuch as the Commission had no power to contract such indebtedness at those times, since the appropriation was then completely exhausted.

Crane Company, A Corporation, sold and delivered to the Illinois Coal Products Commission, through its agent, the Singh Company, plumbing and heating supplies on various dates from November 2,1951 through February 10, 1952 in the total sum of $3,416.84. Its claim in that amount should be allowed.

This claimant also furnished material of like kind from April 7, 1952 through September 22,1952. Claim for these items cannot be allowed, inasmuch as the Commission had no power to contract such indebtedness at those times, since the appropriation was then completely exhausted.

Farris Engineering Corporation received a purchase order dated October 11,1951 from the Singh Company by which four safety relief valves were ordered for the Coal Products Commission to be delivered to the pilot plant. The order was not for stock items, but required special werk on the part of Farris. Three of these valves were completed and delivered to the Commission, the fourth being cancelled by the Singh Company. The Commission became obligated to this claimant at the time these materials were ordered and work on the fabrication of such articles commenced, which work was commenced soon after receipt of the order. At that time there were sufficient funds available in the appropriation to cover such expenditures. The three valves were delivered as soon as they were completed, and at that time claimant invoiced the Coal Products Commission. The amount of this claim should be allowed in the sum of $774.35, which represents payment in full of this company’s claim.

Joseph Cronin, doing business as the Cronin Electric Company, was employed by the Chairman of the Coal Products Commission directly. At the time of the hearing Mr. Cronin was deceased, having died subsequent to the filing of the claim. There has been filed in this Court a certified copy of Letters of Administration issued to Luella 0. Cronin as Administrator of the Estate of Joseph E. Cronin, deceased. She, as such administrator, is considered to he the present claimant.

The only witness testifying on behalf of claimant was Senator Eoland Y. Libonati. He testified that he, as Chairman of the Coal Products Commission, employe d Joseph Cronin, doing business as the Cronin Electric Company, to do work at the pilot plant. He testified that the Commission generally supervised the construction of the pilot plant building. He further testified that the bills for material, labor and services of the Cronin Electric Company were submitted to the Commission from time to time as the work was done. He further testified that Cronin worked directly under the Commission, although still subject to Dr. Singh’s orders.

His testimony regarding the reason for Ms hiring Cronin directly was as follows:

“Q. Mr. Cronin was not retained by Dr. Singh?
A. No, he was not. Cronin was directly under the Commission. I will tell you why. Dr. Singh was building a plant. A plant of this type had never been built, and from day to day, Dr. Singh would direct the men on building the plant. From time to time, he would have some plans, but otherwise. it was purely building a plant with the formula and understanding he had as an engineer.
I had to make arrangements with the different unions, as he understands, which he could not do, relative to this work. They were electricians, some of them worked as painters, some of them worked as machinists, and some of them worked as concrete men, as they were needed. There was not a full week’s work for electricians.
We arranged with labor to hire those various trades, which they ordinarily have, in view of the fact that it was an experimental plant. On experimental plants, wages for electricians run seven and a half to eight dollars an hour. Cronin agreed to service the plant with men at five dollars and fifty cents an hour. That is why he was directly under the Commission. Of course, Dr. Singh gave him his orders as far as his work was concerned.
O. But he was generally directly under your supervision and control?
A. Yes.”

He further testified that the Commission checked his work from time to time through men they had at the plant. Two exhibits were offered into evidence. Claimant’s exhibit No. 1 was an invoice of the Cronin Electric Company, bearing date of June 19,1953, directed to the Illinois Coal Products Commission. It reads as follows:

“Electrical wiring at Illinois Coal Products Commission Pilot Plant, 11701 South Ewing Avenue.
Labor and material for the following months from November 14, 1951 to December 31, 1952.
Fluorescent lighting over scale model density and fluidizing scale model.
Flood lighting for fence and entrance to plant.
Inter-communication system from panel board in building to entire plant and buildings on outside.
Lighting over panel board. Installing low water level gauges, and cutouts on 75 H.P. 440 volts compressor.
Wiring electric furnace inside of building.
Wiring thermacouples on scale model of electric furnace.
Lowering control panel on electric coal weighing machine to ground level.
Installing 110 volt outlet plugs for telephone sirens inside plant and outside plant.
Wiring for pitch pump under scale model inside of plant. And removing same from outside of building.
Wiring power outlet plugs for electric strip heaters on entire scale model.
Building and installing electric extensions on electric furnace for scale model.
Wiring service oil burner and oil pump from cement block house to heat generator and superstructure.
Wiring and installing fluorescent lighting over benches in building.
General electrical maintenance on plant.
And all other work, not electrical, ordered by Dr. Singh, but performed by us.
Labor from November 14, 1951 to December 31, 1951----------$ 5,324.00
Labor from January 4, 1952 to December 31, 1952--------------- 28,160.00
Material from November 14, 1951 to December 31, 1952— 7,030.47
Labor and Material __________________________________________________________$40,514.47”

Cronin’s exhibit No. 2, dated July 1, 1953, was a statement from the Cronin Electric Company to the Illinois Coal Products Commission, covering a period from January, 1953 to June, 1953. This exhibit reads as follows:

“Electrical wiring at Coal Pilot Plant — 117th and Ewing Ave., general maintenance of said plant as ordered by Dr. A. D. Singh.
Labor for month of January — 168 hours____________________________$ 924.00
Labor for month of February — 160 hours______________________ 880.00
Labor for month of March — 176 hours_________________________ 968.00
Labor for month of April — 192 hours____________________________________ 1,056.00
Labor for month of May — 168 hours____________________________ 924.00
Labor for month of June — 176 hours_________________________ 968.00
Labor________________________________________________________________$5,720.00
Material purchased from January 2 to June 30________________$3,484.22
Labor and Material____________________________________________________________$9,204.22
All electrical materials stored in the two transformer vault rooms. Inventoried by Dr. A. D. Singh on July 8, 1953, and turned over to him.
Total Labor and Materials_______________________________$9,204.22”

Senator Libonati testified that all of the items set forth on these bills had been approved by the Illinois Coal Products Commission. He stated that the bills were not paid “because of the fact that there never was any money”. He further testified that there were no items in dispute between Cronin and the Illinois Coal Products Commission.

No one connected with the Cronin Electric Company testified to the details of the work or materials furnished. On the other hand, no witness on behalf of respondent testified regarding this claim. It is obvious from the only evidence before us that most of the work was performed, and the materials furnished after the appropriation account was completely exhausted.

The item contained in exhibit No. 1, “Labor from November 14, 1951 to December 31, 1951” in the sum of $5,324.00, represents a statement of labor performed within the period of time when the Commission had the power to incur such expense.

It is impossible to ascertain from the other items contained on exhibits Nos. 1 and 2 how much of the labor and material charges were incurred prior to the exhausting of the appropriation.

We will not engage in speculation on this question, and, therefore, recommend that the claim of the Cronin Electric Company be allowed in the sum of $5,324.00, and the rest of the claim denied.

The Singh Company claim falls into three categories :

1. Claims for labor, services and overhead of the Singh Company in the amount of $68,405.34.

2. Claims of the Singh Company for funds expended in payment of suppliers’ invoices in the amount of $18,413.64.

3. Claims of some 49 suppliers, who have given powers of attorney to the Singh Company to process their claims.

The 1949 contract, which we have heretofore held was extended to include the 1951-1953 biennium, provided that the Singh Company could make proper charges for overhead, administration, and other charges incidental to its work.

Dr. Singh testified that the charge for overhead was computed on the basis of 50% of the salaries of the men engaged in the work, and his salary of $833.00 per month. He stated that some of the Commission seemed to feel that it was an exorbitant charge. He then contacted C. C. DeLong, Bursar of the University of Illinois, and asked for an opinion on the matter, inasmuch as the University was carrying on research projects for the U. S. Government. He stated that Mr. DeLong wrote a letter, which indicated that the University charged the U. S. G-overnment 50% for overhead. Respondent questioned the reasonableness of the overhead figure.

We believe that the Singh Company has failed to bear its burden of proof by a preponderance of competent testimony as to what would be a fair and reasonable charge for the overhead in this particular situation. The letter, which Dr. Singh procured from Mr. DeLong, is not competent evidence of the fact, nor does it pertain to a similar situation.

The Singh Company invoices submitted each month listed the labor services rendered, together with the charges for Dr. Singh’s salary during each month. The invoices also listed the materials and supplies, which the Singh Company purchased as agent for the Illinois Coal Products Commission. This latter item contained those which Singh paid for, and those which were contracted for but not paid by the Singh Company.

It has been necessary for us to examine each item individually in order to determine which of them Singh should be reimbursed for, which of them were subjects of the other claimants heretofore considered, and which of them represent claims that the Singh Company is presenting under powers of attorney for the 49 odd claimants referred to in Count II of the Singh Company’s complaint.

The evidence regarding the claims of the Singh Company, and those which the Singh Company is handling under powers of attorney was limited to the testimony of Dr. Singh. No witness was called by respondent.

We have concluded, after examining the testimony of Dr. Singh and the numerous exhibits, that the following claims presented by the Singh Company should be allowed:

The claim of the Singh Company, as attorney for the Richard H. West Company, should be allowed in the sum of $2,048.00. The Singh Company’s invoice of October 5, 1951 established such claim for painting of the plant and buildings.

The claim of the Singh Company, as attorney for the Western Piping and Supply Division of the Lummus Company, should be allowed in the sum of $1,219.54 for furnishing piping for processing vessels set forth in the Singh Company invoices of October 5, 1951 and November 10,1951.

The claim of the Singh Company, as attorney for Marshall Anderson d/b/a The Welding Shop, should be allowed in the sum of $397.25 for welding services set forth in the Singh invoices of October, November and December, 1951.

The claim of the Singh Company, as attorney for the Henry Pratt Company, should be allowed in the sum of $1,066.00, as stated in the November 10, 1951 invoice of the Singh Company.

The claim of the Singh Company, as attorney for the Grinnell Company, should be allowed in the sum of $901.02 for furnishing brackets, pipe, supplies, plugs, as shown in the Singh Company invoices of December 10, 1951, January 10,1952 and February 10, 1952.

The claim of the Singh Company, as attorney for the American Boiler and Tank Company, A Corporation, should be allowed in the sum of $369.59 for fabricating and installing, spouts, as shown in the Singh Company invoice of January 10, 1952.

The claim of the Singh Company, as attorney for the Johnson Plumbing Supply Company, should be allowed in the sum of $819.20 for furnishing various items of plumbing equipment listed in the January 10 and February 10,1952 invoices of the Singh Company.

The claim of the Singh Company, as attorney for the South Side Welding Supply Company, should be allowed in the sum of $93.12, as shown in the January 10, and February 10, 1952 invoices of the Singh Company.

The claim of the Singh Company, as attorney for the Anderson Copper and Brass Company, should be allowed in the sum of $1,262.45 for supplying copper tubing, as shown in the January and February, 1952, invoices of the Singh Company.

The claim of the Singh Company, as attorney for Albert M. Levy, for services rendered, as set forth in the February 10, 1952 invoice of the Singh Company in the amount of $141.00 should be allowed.

The claim of the Singh Company, as attorney for the William A. Pope Company, for pipe fitting services should be allowed in the sum of $3,485.79, as set forth in the February 10,1952 invoice of the Singh Company.

From a consideration of the testimony, together with the exhibits, we have determined that the Singh Company expended sums of money in payment of suppliers’ invoices from September 5,1951 to and including February 10, 1952. These sums are as follows:

In September, 1951...................... $ 343 R7
In October, 1951................... 1 397 QQ
In November, 1951.................... 3 file fi4
In December, 1951........................ 1 479 41
In January, 1952................................... 947 SR
In February, 1952............................ MR 43
Total........... ;...... ............... $8,624.69

During the same period of time, the Singh Company’s charges for labor and Dr. Singh’s salary appear to be as follows:

For September, 1951_____________________________________________________________$ 1,812.27
For October, 1951_________________________________________________________________ 2,380.95
For November, 1951_________________________________________________________________ 2,089.38
For December, 1951______________________________________________________________ 1,646.24
For January, 1952_________________________________________________________________ 1,929.83
For February, 1952__________________________________________________________________ 2,454.53
Total _______________________________________________________________________________$ 12,313.20

It, therefore, appears that, as of the March 10, 1952 invoices, the amount of the Singh claim is a total of $20,937.89. This sum exceeded the unexpended balance of the appropriation by $1,222.91. Therefore, the Singh Company claim based upon labor and services of the Singh Company, including Dr. Singh’s salary, and the claims of the Singh Company for funds expended in payment of suppliers ’ invoices could only be allowed in the sum not to exceed $19,714.98.

The record reflects, however, that the Singh Company in its brief has conceded that the state is entitled to a set-off in the amount of $22,971.05 by reason of the payment to the Singh Company of the sum of $20,971.05 for reimbursement to Minneapolis-Honeywell, and $2,000.00 for reimbursement to the' Beaumont-Birch Company.

Aside from this acknowledgment of Singh, nothing appears in the record to indicate that Singh was overpaid. Dr. Singh testified with respect to the moneys received by the Singh Company in payment of the monthly invoices, which included the above amounts. He stated that the Singh Company did not pay these sums, to Minneapolis-Honeywell and Beaumont-Birch Company for the reason that the Singh Company never received funds from the state on their monthly invoices until some time had elapsed. Consequently, payments were not always made to suppliers listed in any one month’s invoice of the Singh Company. During these periods when the state was behind in making payment to Singh, the company would pay creditors, who had been waiting longer than the ones listed on any one given monthly invoice.

It is apparent that the Singh Company’s acknowledgment of the above set-off was intended to apply only to the total amount claimed by Singh. The total amount of Singh’s claim exceeds this sum of $19,714.98 by more than that amount. We, therefore, recommend payment of Singh’s claim in the amount of $19,714.98!

With respect to all of the other claims presented in in this case, we find from the record that each and all of them must be denied. At the various times the materials and services were furnished, neither the Illinois Coal Products Commission nor its agents, the Singh Company and Dr. Singh, had any power or authority whatsoever to incur indebtedness in any amount, inasmuch as the appropriation was then completely exhausted.

The evidence fails to establish that any of these materials and services were contracted for prior to the exhaustion of the appropriation.

This Court has consistently denied claims for this reason in numerous cases. The Court in Chicago Printers, Inc., A Corporation, vs. State of Illinois, 8 C.C.R. 583 at 586 stated:

“As the Superintendent of the Division of Printing was without power or authority to contract for work in excess of the amount appropriated by the legislature, the contract so far as it applies to such excess is void, and no award can be made by this Court for the payment thereof.”

In John Lewson vs. State of Illinois, 5 C.C.R. 80, the Court recognized that:

“To allow this claim would he to establish a most dangerous precedent. It would) open up the avenue for all state officers and state departments to ignore the limitation of the appropriation for their respective offices or departments, if they saw fit so to do, and rely on the Court of Claims to take care of all claims made in excess of such appropriations.”

Other cases in which the Court has followed these fundamental principles are: Individual Towel and Cabinet Service Company vs. State of Illinois, 6 C.C.R. 406; Transportation Building Corporation vs. State of Illinois, 6 C.C.R. 423; Inspectors of the City of Peoria, A Corporation vs. State of Illinois, 12 C.C.R. 17; and The Board of Education of the City of Chicago vs. State of Illinois, 12 C.C.R. 281.

The claimants contend, however, that the legislature, in 1953, enacted three bills dealing with the Illinois Coal Products Commission’s difficulties, and that the effect of these enactments, when viewed together in the light of the circumstances confronting the legislature in the Spring of 1953, amounted to an offer by the state to acquire and perfect title to the pilot plant, so as to assure the cooperation and continuation of the research project in exchange for the sum of $150,000.00 to be distributed to the respective unpaid claimants.

They further contend that, even if the claims are invalid, because of lack of authority on the part of the Commission and its agents to incur the indebtedness, nothing barred the legislature from using the amounts of such claims as the measure or formula for compensation incorporated into the state’s offer.

The three enactments of the legislature cited by claimant are as follows:

1. House Bill No. 695, transferred the property and powers of the Illinois Coal Products Commission to the Department of Mines and Minerals. (Laws of Illinois, 1953, page 514.)
2. House Bill No. 953, appropriated $150,000.00 for the Department of Mines and Minerals to meet expenses in “The operation of a coal processing pilot plant in Chicago”. (Section 1, Laws of Illinois, 1953, page 524.)
3. House Bill No. 696, appropriated the sum of $150,000.00, “or so much thereof as may be necessary, to the Auditor of Public Accounts for distribution to persons who may be granted awards by the Court of Claims, based upon rights arising out of agreements made with the Illinois Coal Products Commission. No part of this appropriation shall be disbursed except upon the basis: of an award made by the Court of Claims in the ordinary conduct of its powers in settling claims against the State of Illinois.”

We do not read into these three enactments an offer by the state to “purchase the products” of the unauthorized agreements at an agreed price as contended by the claimant Singh Company.

In the first place, if such had been the legislature’s intention, it would have simply and plainly stated such intention.

In the second place, the appropriation prohibits the Auditor from making any disbursements unless the Court of Claims “in the ordinary conduct of its powers of settling claims against the State of Illinois” has rendered an award.

This Court’s authority and power is subject to the Constitution and laws of the State of Illinois.

We could not, if we wished, disregard any statutory or constitutional provision.

We have no power to either restrict or extend the power of the legislature to pay claims against the state.

The Supreme Court in Fergus vs. Russell, 277 Ill. 20 at page 25, stated: “The Court of Claims is a statutory body not provided for in the Constitution, and its action can have no effect upon the power of the legislature to pay claims against the state. If the legislature has no such power in any case, favorable action by the Court of Claims would not give the legislature power to pay such claim by making appropriations therefor. If it has the power to pay claims, it cannot be deprived of it by unfavorable action on such claims by the Court of Claims. The power or lack of power to appropriate money to pay claims depends upon the Constitution and not upon the action of the Court of Claims.”

It necessarily follows then, that, in order to properly perform our function, we should not render a decision recommending the payment of a claim, which is clearly prohibited by the Constitution.

Under the authority of Fergus vs. Brady, 277 Ill. 272, as cited earlier in this opinion, the legislature was expressly enjoined by See. 19 of Art. IV of the Illinois Constitution from appropriating a sum of money to pay a claim previously incurred in excess of an appropriation.

If claimant’s position was followed, we would, in effect, be required to presume that the legislature intended to do indirectly through the Court of Claims that which it is expressly prohibited from doing directly by the Constitution. We will not presume any such legislative intention. We believe that the legislature meant for this Court to do exactly what they said, namely, to pass upon these claims “in the ordinary conduct” of this Court’s powers. This is what we have attempted to do.

Claimant also contends that the legislature specifically directed the Court of Claims to ignore this constitutional prohibition by enacting House Bill No. 1191 in the General Assembly on June 30, 1955. This Bill provides as follows:

“Section 1. The sum of $150,000, or so much thereof as may be necessary, is re-appropriated to the Auditor of Public Accounts for distribution to persons who may be granted awards by the Court of Claims based upon legal or equitable rights arising out of agreements made with the Illinois Coal Products Commission. No part of this re-appropriation shall be disbursed except upon the basis of an award made by the Court of Claims in the ordinary conduct of its powers of settling claims against the State of Illinois, notwithstanding that at the time of such agreements the amounts for payment thereof were not available.”

We do not read such intent into the enactment. Here again, we will not presume that the legislature intentionally disregarded the Constitution.

It is more reasonable to presume that the legislature, in both the 1953 and 1955 enactments, attempted to make available funds out of which the Auditor of Public Accounts could satisfy any awards “made by the Court of Claims in the ordinary conduct of its powers of settling claims against the State of Illinois” as expeditiously as possible, so that the successful claimants would not be required to await the confirming action of the legislature as long as the total sum did not exceed $150,000.00.

The concluding words of the 1955 appropriation, namely, “notwithstanding that at the time of such agreement the amounts for payment thereof were not available”, are merely directory to the Auditor to the effect that, in the event the Court enter an award, he, the Auditor, might issue the necessary warrants to claimants without further appropriation by the legislature, notwithstanding the fact that some of the awards might include claims on contracts entered into after the original Coal Products Commission appropriations had been expended according to the Auditor’s account. This statute concerns only the Auditor, and in no way directs this Court as to what defenses it may or may not consider.

This method of appropriating sums in advance of an award is unusual. The determination of its validity, however, need not here be made, since the allowance and denial of the various claims in no way depends upon that question.

It is suggested by the Attorney General, as counsel for respondent, that, instead of determining this matter on the basis contended by claimant, it was the intent of the legislature that the payments to the claimants, as determined by this Court, be on a quantum meruit basis.

This theory cannot be applied. It has long been recognized that, where a contract with the State of Illinois is prohibited by law, there can be no recovery upon the quantum meruit theory. Green and Sons Co. vs. State of Illinois, 9 C.C.R. 218; Illinois Central Railroad Company vs. State of Illinois, 10 C.C.R. 493; Schnepp and Barnes vs. State of Illinois, 10 C.C.R. 609; Lord and Bushnell Co. vs. State of Illinois, 13 C.C.R. 189; and, Dutton vs. State of Illinois, 16 C.C.R. 64.

It may well be that there are uncompensated claimants, who have performed services and furnished materials at the instance of persons purporting to have state authority to contract. It may seem unjust to such claimants, but as was correctly stated in Wasson vs. State of Illinois, 10 C.C.R. 493 at 497, “. . .We are compelled to hold that whoever deals with a municipality does so with notice of the limitations on it or its agent’s powers. All are presumed to know the law, and those, who contract with it, or furnish it supplies, do so with reference to the law, and, if they go beyond the limitations imposed, they do so at their own peril”.

We have, therefore, allowed those claims, which we believe the evidence established as valid contracts, and denied those claims, which did not result from valid contracts.

The claims, which have been allowed, are as follows:

Minneapolis-Honeywell Regulator Company, A Foreign Corporation authorized to do business in Illinois____________________$ 22,177.33
Beaumont-Birch Company, A Corporation__________________ 2,000.00
Schutte and Koerting Company, A Corporation________________ 148.00
George Willy Hardware.____________________________________________________ 331.71
Crane Company, A Corporation_________________________________________ 3,416.84
Farris Engineering Corporation, A Corporation of the State of New Jersey.____________________________________________________________________ 774.35
Joseph Cronin, d/b/a Cronin Electric Company.___________________5,324.00
Singh Company, A Corporation, as attorney for Richard H. West Company__________________________________________________ 2,048.00
Singh Company, A Corporation, as attorney for Western Piping and Supply Division of the Lummus Company.______ 1,129.54
Singh Company, A Corporation, as attorney for Marshall Anderson, d/b/a The Welding Shop___________________________________ 397.25
Singh Company, A Corporation, as attorney for Henry Pratt Company--------------------------------------------------------------- 1,066.00
Singh Company, A Corporation, as attorney for Grinnell Company----------------------------------------------------------------,___________ 901.02
Singh Company, A Corporation, as attorney for American Boiler and Tank Company._________________________________________________ 369.59
Singh Company, A Corporation, as attorney for Johnson Plumbing Supply Company__________________________________________ 819.20
Singh Company, A Corporation, as attorney for South Side Welding Supply Company.________________________________________________ 93.12
Singh Company, A Corporation, as attorney for Anderson Copper and Brass Company.______________________________________________ 1,262.45
Singh Company, A Corporation, as attorney for Albert M. Levy-------------------------------------------------------------------- 141.00
Singh Company, A Corporation, as attorney for William A. Pope Company_____________________________________________________________ 3,485.79
Singh Company, A Corporation_____________________________________________ 19,714.98
Total _________________________________________________________________$ 65,690.17


author: Tolson, C. J.

text:
    (No. 4683
    Bernice O. Hook, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 20, 1957.

    Harris and Harris, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Claimant, Bernice O. Hook, filed her claim for damages in the amount of $500.00 for the alleged negligence of respondent in maintaining Route No. 136.

On May 7, 1955, at about 7:00 P. M., claimant, Bernice O. Hook, and a Mrs. Leighty were driving in claimant’s car in a northwesterly direction along Route No. 136. In some unexplained manner, a sizeable chunk of concrete had broken out of the highway, and was lying on the travelled portion of the slab. Claimant was unable to cross over into the other lane of travel due to oncoming traffic, and, as a result, she hit and drug the concrete forward into a hole in the pavement.

Damages to her car were in the amount of $22.66. Her medical bill for treatment was $22.00. She also claims damages for her loss of time as a dance instructor in the amount of $200.00, and, finally, $255.34 for pain and suffering.

The evidence discloses that Route No. 136 between Table Grove and Adair was about to undergo major repair. The road in this area had been posted “Rough Pavement”. Maintenance men on the date in question had been applying black top patching, and at the scene of the accident barricades had been piled on the shoulder of the road, as this section of pavement was to be completely removed on May 9, and a new concrete section poured.

Claimant had passed over this road earlier in the day, and acknowledged that she had seen the work in progress.

In addition to the above, a maintenance man had patrolled the road in the afternoon of May 6, and did not find any broken concrete on the slab or hole in the pavement.

This Court has repeatedly held that the state is not an insurer against all accidents, which may occur by reason of the condition of its highways.

Gray, Et Al vs. State of Illinois, 21 C.C.R. 521.
Riggins vs. State of Illinois, 21 C.C.R. 437.

We have also held that a claimant must allege and prove that the state had notice, actual or constructive, of a dangerous condition in the highway.

Visco vs. State of Illinois, 21 C.C.R. 580, which cites
Rickelman vs. State of Illinois, 19 C.C.R. 54;
Herrin vs. State of Illinois, 20 C.C.R. 110.

Since the mid-afternoon patrol of the maintenance man negates any actual notice of the dangerous condition, our final inquiry is whether the facts at hand justify a finding of constructive notice.

Respondent was well aware of the rough condition of the pavement, as it was in the process of correcting it.

It is common knowledge that patch work is done in a progressive manner, a section at a time, so as to cause the least inconvenience to the travelling public. Otherwise, miles of road would have to be closed if all patch work were done simultaneously.

There is nothing in the record to show that respondent could have anticipated that a large chunk of concrete would break out and lodge on the pavement. In fact, neither claimant nor respondent have tried to explain how this happened.

Constructive notice, as used in the reported cases, is a legal conclusion, which a court finds by reason of the facts in a given case: The dangerous condition must have existed for such an appreciable length of time that the Court can find respondent was negligent in not ascertaining and correcting the condition.

In the instant case, the dangerous condition was not the rough pavement, but was the broken concrete lying on the pavement. This condition came about in a matter of hours from the time of the mid-afternoon patrol to 7:00 P.M., the time of the accident. This limited period of time could not under any circumstances establish constructive notice.

The Court, therefore, finds that claimant has not established that respondent had actual or constructive notice of the dangerous condition.

An award is, therefore, denied.