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    Patrick R. Bannon v. The State of Illinois.

      Opinion filed January 24, 1895.

      Waters—particular facts under which claimant is entitled to recover for damages to land caused hy overflow of canal. Court reviews evidence and finds claimant entitled to damages for injury to lands caused by overflow of Illinois & Michigan and Des Plaines river, resulting from repairing and raising dam.
   The claimant is the owner of about twenty-five acres of land situated just north of the north limits of the city of Joliet, and west of the Des Plaines river. A short distance south of the south line of claimant’s land the river enters what is called the upper basin of the Illinois and Michigan canal, under what is known as the Tow-path bridge. This upper basin is a widening of the canal proper, and was constructed many years ago by the State of Illinois, and into it the river was diverted from its natural channel, entering it near its north end. This basin is about three-quarters of a mile in length, from the place where the channel widens, to the dam known as the Jackson street dam, over which the water flows into what is known as the lower basin. The tow-path is on the west side of the basin. The dam is about two hundred and sixty feet long, and between its west end and the west wall of the basin there is a lock. The entire volume of water from the river and the canal, passes through this basin and over this dam. Just west of the river and east of claimant’s land is a right of way of the Chicago and Santa Fe Railroad Company, upon which, however, the railroad is not yet constructed. The water in the basin is nearly level, there being but little fall from north to south—some witnesses estimating the fall at three and three-quarters inches from the Tow-path bridge to- the dam, and others placing it at a much smaller figure.

The claim herein is based upon the alleged raising of the Jackson street dam, whereby it is claimed that the water in the basin and in the river is considerably raised, and that in consequence the claimant’s land has been overflowed, and is subject to overflow, to a greater extent than it would be, but for the raising of the dam; and that his land is thereby greatly damaged. It appears that the Jackson street dam is a solid cut stone structure, built by the State, upwards of forty years ago; that during the high water in February, 1893, about two thirds of the coping stone of the dam was washed away, leaving intact only about fifty-five feet of the west side, and about forty feet on the east side of the dam. To repair this break the State canal authorities caused a large amount of rip rap to be placed just back of the dam, and next to the break. This riprap consisted mostly of loose stones, which were hauled in, and dumped back of and upon the dam. So much of this material was hauled in, that it was piled up considerably higher than the height of the dam before the break. Much of the water passes through the rip rap but from the evidence before us, the conclusion is irresistible that the rip rap causes the water to rise considerably higher than it would have done, had the dam been restored to the condition in which it was before the break. Some of the witnesses differ widely as to the extent of this rise thus caused; but we think it reasonable to conclude from the evidence that it is about ten inches at the dam. It then becomes material to know what, if any, effect such rise in the water at the dam would have upon the river near claimant’s property. Upon this question the evidence is quite conflicting, varying from one foot to nothing, in the opinions of the different witnesses. The actual effect seems to be impossible of exact ascertainment, especially under the evidence before us. It is quite apparent that there is very little fall from the north end of the basin to the dam. The opening under the Tow-path bridge does not seem to be sufficient for the free passage of the water of the river into the basin. This sets back somewhat the water in the river, causing it to be some higher that the water in the basin. Whether a rise of a few inches of the water in the basin would cause an equal rise for a considerable distance in the river, is a question which, under the evidence is not free from doubt; but we think it reasonable to assume that it would have some effect on the water in the river, but not equal to the effect observed in the basin; and we think it equally reasonable to assume under the evidence, that a rise of ten inches at the dam, would have a marked effect upon the height of the water in the basin at the Tow-path bridge, but not so much as at the dam, for all, or the greater part, of the fall between the two points, must be deducted from the rise at the dam, to arrive at the effect at the Tow-path bridge. So, under all the evidence before us, we are led to the conclusion that the maximum effect of the rip rap placed upon the dam would be to cause a rise of about six and one-half inches in the river, at the south end of claimant’s property. This effect would gradually lessen further north, because the flow of the river being toward the south, it is somewhat higher toward the north; and as claimant’s property is about one quarter of a mile in length from north to south, this effect would be gradually lessened toward his north line.

Whether or not the increased height of the dam is permanent, is a matter of some importance, for if only temporary, the claimant cannot be said to have sustained any substantial damage; for the increased overflow which his land may have suffered, has not been shown to have, as yet, substantially diverted the property from any use to which it might reasonably have been put, including even its sale for building lots.

The reason given for raising the dam, is to deepen the water, in order to prevent boats from dragging in the mud at the bottom of the basin. It appears that the State has been at work dredging out the basin, yet. it does not appear that the dam will be again lowered when the basin is sufficiently dredged, if, indeed, there is any intention on the part of the State to further dredge the basin. And it does not appear that there is any provision made, or attempted to be made, or possible to be made, for the carrying off, in times of high water, the additional water that would otherwise be set back because of the additional height of the dam. It appears from the evidence that the canal authorities were notified by the claimant that his land would be damaged ■unless the dam was lowered to its former height; that the rip rap was thereupon somewhat leveled off by the canal authorities, but was not materially lowered. Whatever, if any, effect upon the conclusion reached by the Commission, a subsequent lowering of the dam may or ought to have, is not for us to determine; but for the purpose of the case we must, in justice to the claimant assume the permanence of the condition thus caused by the State, and by it permitted to remain for a period of nearly three years, against the protest of the claimant.

Under these circumstances it is apparent that through this action on the part of the State in raising the dam, part of the claimant’s land has sustained damaged, and the only question is, how much.

Several witnesses have testified to a damage of five or six thousand dollars to the reputation of the property by reason of overflow. As regards this element, even though allowable in a proper case, yet it appears that the land in question most subject to overflow, was occasionally overflowed prior to the raising of the dam, and that raising the dam only increased the frequency, and the amount of the overflow. If occasional overflow damaged the reputation of this land, then such damage was done before the dam was raised. All claim for damage to reputation is therefore disallowed.

The question of the proper measure of damage in this case is not free from difficulty. There is no evidence to show with reasonable certainty, the market value of the land before and after the raising of the dam. About twenty acres of the land was purchased by the claimant five or six years ago, at a price aggregating about five thousand dollars. This land, with other that he had, he subdivided into lots, and called it Edgewater Addition. Portion of the land was very low, and this he filled some, obtaining his material from a quarry which constitutes part of his addition. It would not be fair to compute the damages at the difference between the market value of the land before and since the dam was raised, as just about that time other conditions intervened which materially affected market values, and especially property held for speculative purposes, as this was and is. The stringency of the times, has been such that not one of the lots in question has been sold. There is no evidence of what similarly situated lots in the vicinity have brought, if indeed, there have been any sales of such in the last few years.

The staking out of vacant property, and running of imaginary lines by platting the same into lots, does not, materially enhance its value, although with many persons the mere mention of that uncertain and indefinite quantity “lot,” at once induces belief in a largely increased valuation which would not otherwise exist.

Edgewater Addition presents a varied surface. The extreme westerly part is high, being ten or fifteen feet above the property immediately east, and forming a sort of bluff. The northerly half of the property is quite high, most of it being above the highest water mark, but containing some ravines and depressions. The south easterly portion is the part which is the lowest, and which has already been partly filled, and which it is necessary to fill still more, without taking into consideration the raising of the dam. A considerable portion of the property has been operated by the claimant as a stone quarry. This part is situated next east of the bluff, and much of the abruptness of the bluff is caused by the excavation of the quarry. Witnesses have testified that the property is especially valuable for residence purposes, for workingmen’s homes, and some to its value for manufacturing purposes. It seems apparent that, within reasonable limits, the higher above the level of the river, the more valuable is the land for either of these purposes. Property which is five or six feet above the level of the water is better adapted for residence and manufacturing, than if it was just even with the water’s edge. If the claimant in working his quarries had designed to leave the property so it would be best suited for residence or manufacturing purposes, it would have been better if he had left it several feet higher than he did, so that it would not have been subject to .overflow in any event. We think it hardly just, that as to this part of the property, he could cut it down to just about on a level with the surface of the water, and thereby decrease its value for occupation for residence or manufacturing purposes, and then complain because the river is raised a few inches. As to the ravines and depressions in the more northerly portion of the land it seems that to put this part of the property to its best use, they would have to be filled to a height to correspond to the land in the immediate vicinity. This land is high and dry, and is in no manner affected by the increased height of the dam, and as the depressions and ravines therein, would, in any event, have to be filled as suggested, no damage can be allowed on account thereof, and none for that part of the land which was used for quarry purposes.

It seems clear to us that something should be allowed for damage to the southeasterly part of the land; and we are inclined to the belief that such damaged should be measured by the reasonable cost of filling the same about six and one-half inches. Various estimates of the cost of such filling have been made. It appears that the filling already done was from plaintiff’s quarry, and that the cost thereof was about twenty-five cents a yard. It is claimed that it is now difficult to obtain material for filling, and the same must be hauled by wagon for a long distance, and that it would therefore cost from seventy-five to ninety cents a yard. Perhaps it would cost as much as this if it were hauled by wagon, and even more if it were hauled by less convenient means of transportation; but we believe that in the future, when, by increased demand for property the necessity for improving this property may exist, if the claimant will avail himself of those facilities which modern appliances for excavation and transportation afford, he can have the necessary filling done at a much less cost than as above suggested. The rigth of way of the Santa Fe railroad adjoins his property on the east; and by the time it becomes necessary to do this filling, the tracks of this road will in all probability have been laid. The Elgin, Joliet and Eastern road is not far north of this property, and has a switch track running to the manufacturies which have been testified to as being just north of claimant’s property; and in case of the use of this property for manufacturing purposes, which, indeed, seems to be the use to which the property is best adapted, this switch would doubtless be extended to this property; or it might be temporarily and cheaply extended thereto- for the very purpose of the filling. In any case, the property would be in close proximity to a railroad, by means of which the filling could undoubtedly be hauled upon this property at a much less cost than estimated by any of the witnesses, who testified to the price for loading it by men and hauling it by teams. It is quite impossible to determine exactly, either the-amount of the filling which the raising of the dam necessitates, or the cost thereof. As in most questions of damages, a fair approximation is the best solution that can be hoped for. Under all the circumstances of the case, the Commission is of the opinion that the claimant ought to have and receive from the State of Illinois for all damages by reason of his aforesaid claim, the sum of twenty-one hundred dollars, together with one hundred and fifty-eight and 85-100 ($158.85) dollars costs, which amount is hereby awarded to the claimant, and against, the State of Illinois,


source: Caselaw Access Project

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    John Scanlan v. The State of Illinois.

      Opinion filed January 24, 1895.

    Military Service—under what circumstances a claimant who is in military service of the State and is injured, can recover. Claimant while in the military service of the State and in attendance at an armory leased by the State for drilling purposes in compliance with the orders of his superior officers, fell down an elevator shaft which was open and unprotected, he being at the time ignorant of its location and the passage way leading thereto being in darkness. Held that the circumstances are such as to entitle him to recover from the State.
   The claimant in this case was first sergeant of Company H, 7th Regiment, Illinois National Guard.

This regiment used as an armory and for drill purposes, the second, third, fourth, fifth and sixth floors of a building known as No. 28, Lake street, Chicago, Illinois.

On the evening of October 9,1893, the claimant was on the second floor of this building in compliance with the orders of his superior officers for drill purposes and while attempting to go to the water closet located in a hall, he fell down an elevator shaft and was seriously injured.

The evidence shows that the lease of the second, third, fourth, fifth and sixth floors of this building, was made on the part of the State by the Colonel of the Regiment and the rent money and the janitor in charge was paid by the State; that the claimant did not know of the location of the elevator shaft, and that said elevator was used for freight and not for passengers; and that the door or opening to the elevator was open and unprotected, and the hall was dark.

That the claimant’s injuries were two fractured ribs and a lacerated kidney, and as a result of these injuries he was confined in the hospital of the Alexian Brothers for six weeks and for nine months was unable to work.

At the time of the accident the claimant was a mail carrier, receiving a salary of sixty-five dollars per month.

While the evidence in this case fails to show any permanent or lasting injury, we are of the opinion that the accident occurred while claimant was in the military service of the State and that he was injured in such a manner and under such circumstances as entitles him to recover from the State, and after a careful consideration of the evidence and arguments of counsel, we award to the claimant, John Scanlan, the sum of seven hundred and fifty dollars and costs.


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    Oscar Jenkins v. The State of Illinois.

      Opinion filed November 22, 1895.

    Military Service—reasonable prudence and caution in selection of officers precludes recovery by soldiers poisoned by materials furnished. Where the State has been reasonably prudent and cautious in the selection of its officers and in the performance of its duties to claimant, a claim for damages alleged to be due for injuries sustained from blood-poisoning resulting from handling soap and meat furnished by officers of the State for the use of a company of the National Guard, of which claimant was a member, will be denied.
   Oscar Jenkins, a private in Company H, Fourth Regiment, Illinois Rational Guard, while acting as cook for the company when on active duty in Chicago in July, 1894, became affected with blood poisoning, alleged to have been caused by handling meats or soap furnished by the officers of the State, for the use of the company.

Upon careful examination of the evidence in this case we fail to find any breach of duty on the part of the State which would result in a legal liability of the State for the injury complained of.

It does not appear from the testimony that the meats and soaps were not purchased from reputable dealers, or that the officers of the State, whose duty it was to furnish supplies to the company, had any notice of any defects in the meats or soap, or that by the exercise of reasonable diligence and caution, could have discovered any such defect or unwholesome condition of either. It is not shown whether it was the meat or the soap that caused the injury complained of. The testimony does not disclose the performance of any act or the omission of any duty on the part of the officers in obtaining supplies for the company that would in any degree indicate an absence of prudence or forethought. In fact the evidence does not entirely satisfy us that it was the soap or meats that caused the injury. The witnesses give it as their opinion that it was either the soap or the meats, from the fact, as we infer, that they could account for it in no other way.

It does not appear from anythinginthetestimony, that any other person who used the soap, or who handled the meat from the time it left the slaughter house to the time it Avas consumed by the company, was injuriously affected to the slightest extent, and it is probable, to say the least, that if the cause of the injury was in the unwholesome or poisonous condition of the meat or soap, others handling same, Avould have been similarly affected.

From anything that is apparent in the testimony the State has been reasonably prudent and cautious, in the selection of its officers, and in the performance of its duties to claimant and his company, hence we find that the defendant is not guilty of such negligence or breach of duty as would create a legal liability in this case.

The claim is rejected.


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    Frederick Klor v. The State of Illinois.

      Opinion filed January 29, 1896.

    War Claims—State government is trustee of funds received from Federal government. Where the Federal government has paid the State certain sums of money for the payment of war claims, the State government is to he regarded as a trustee, and claimant should not be barred of his rights to recover for his loss, by any statute of limitations.
   In this case the claimant seeks to recover for losses he sustained by reason of the destruction of his crops on his farm in the summer of 1861. The evidence shows claimant to be a resident of Gardner township, Sangamon county, Illinois, and that in the summer of 1861 he was residing on and farming an eighty acre farm near River-ton, in Sangamon county, Illinois, and that he as tenant had taken possession of said land and the buildings thereon in the spring of 1860.

That for the year beginning March 1, 1861, and ending March 1, 1862, he paid as rent the sum of three hundred and sixty-five ($365) dollars and that this rent was paid in advance. The evidence also shows that in the spring of 1861 the State of Illinois established a military camp called Camp Butler and assembled there several thousand soldiers preparatory to their enlistment and muster into the service of the United States.

That while these troops composed of infantry, cavalry and artillery were under the control of the State of Illinois and before they had passed to the control of the United States some of the soldiers located at Camp Butler, carried away, consumed and destroyed the crops of claimant. The evidence shows that during a portion of the time these depredations were being committed claimant was sick with typhoid fever and that on account of the wrongful acts of the troops the farming operations of the claimant were a total failure. His oats, rye, com, potatoes, all Ms growing crops as well as Ms harvested grain was taken or destroyed by the soldiers.

The evidence also shows that claimant was a loyal man and that he has made earnest and persistent effort to recover the amount of his loss from the United States government. That he employed eminent counsel and his claim was filed in Washington with the proper officials but that the same was finally rejected by the United States on the ground that the federal government had paid to the State of Illinois large sums of money to reimburse the State for “War Claims” and to pay losses of this character sustained by citizens of the State.

It is admitted by counsel for the State that Illinois has at different periods since the year 1861 received from the federal government large sums of money, aggregating-over a million dollars for the payment of war claims.

It is contended by the attorney for claimant that the State of Illinois having received these large appropriations from the federal government should be regarded as a trustee and that the claimant should not be barred of his rights to recover for his loss by any statute of limitations, and that the State should reimburse him notwithstanding the long lapse of time since the depredations complained of were committed.

We have not only heard the evidence in this cause when the case was submitted but have read all the evidence since the hearing and we have carefully considered the arguments of counsel for the claimant and the arguments of counsel for the State and after due deliberation we are of the opinion that under all the facts proven and the admitted facts concerning the appropriations by the United States to the State of Illinois that the claimant ought to recover in this proceeding.

We award Frederick Klor the sum of fifteen hundred dollars.


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    George Mills Rogers v. The State of Illinois.

      Opinion filed December 23, 1896.

    Pees and Salaries—Master in Chancery’s fees. A Master in Chancery is entitled to only such, fees in taking testimony as are fixed by statute.
   It appears from the evidence that the claimant was one of the Masters in Chancery of the circuit court of Cook county and that to him, as such Master, was referred the case of the Attorney General, etc. v. Elizabeth Cooling, to hear the evidence and report his conclusions.

It appears further that on behalf of the State there was taken before said Master 1,825 pages of testimony. For this service the claimant demands that the State pay him 50 cents per page or $912.50, less $450.00 by him received.

The claim is for services for which the statute fixes the rate of compensation. Section 20, Chapter 58, Revised Statute of Illinois, provides that Masters in Chancery for taking and reporting testimony under order of court shall receive the same fee as for taking depositions; and in the same act it is provided that Masters shall receive for taking depositions a fee of 15 cents per one hundred words. It is conceded that the pages of testimony, for which this claim is made, average about 250 words, for which the legal fee would be thirty-seven and one-half cents, but it is urged that the claimant attended personally to the taking of the depositions and that therefore 50 cents per page is a reasonable charge. It is hardly presumable that the statute fixing the fees at 15 cents per one hundred words contemplated that the Master should earn such fees without performing the services. Doubtless the original method of taking such testimony was for the Master to write out the testimony as given, and for this he would receive his fee. But this method has been superseded by the present mode of employing a stenographer to do the work, whereby the Master, with little effort and in a short space of time becomes entitled to a large amount of fees, while the actual work of taking the testimony is done by the stenographer, who is paid as much or more for his work, as is evidenced by the claim for stenographer’s fees for reporting this same testimony. While the method of taking testimony has changed the law has remained the same. In the matter of statutory fees the State should be bound by its laws the same as private suitors. If the law, as it is, permits officers to charge large fees for small services, the State at least should not complain.

This claim, like part of the O’Connor claim, was presented for allowance to the 39th General Assembly, and $450.00 was appropriated by the Legislature and paid to the claimant. While it is probable that the Legislature thereby intended to discharge the whole claim, yet the Master’s fees having been fixed by statute, the statute should prevail.

If the claimant has rendered any extraordinary or unusual services not enumerated in the act above cited, the circuit court of Cook county, may, under said act, make him a special allowance therefor. Ho order for such allowance appears to have been made and, in fact, the only services rendered were such as are specifically provided for in the act. The legal fee for taking this testimony is 15 cents per one hundred words or thirty-seven and one-half cents per page, making $684.38. Upon this there has been paid $450.00, thus leaving due the balance of two hundred thirty-four dollars and thirty-eight cents.

It is therefore ordered by the Commission that the Claimant have and receive in full for his aforesaid claim against the State of Illinois the sum of two hundred thirty-four dollars and thirty-eight cents ($234.38.)


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    Greely Carson Co. v. The State of Illinois.

      Opinion filed December 23, 1896.

      Contracts—with State officer for services. A claim for services performed for the State under written contract with the Attorney General, and accepted by him, with no objection or defense to the claim being interposed by the State, will be allowed.
   Claimant seeks to recover in this case on a contract in writing made on the 18th day of February, 1896, with the Attorney General on behalf of the State, for certain surveys and maps of the shore line of Lake Michigan at Chicago, for the specified sum of five hundred dollars.

It appears from the evidence that the surveys were made and the maps delivered to the Attorney General on the 31st day of March, 1896, in compliance with the contract, and the same were accepted by the Attorney General.

Eo objection or defense to the claim being interposed by or on behalf of the State, the claimant is awarded the sum of five hundred dollars.


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    Catherine Cutting v. The State of Illinois.

      Opinion filed December 23, 1896.

      Waters—damages sustained by raising height of dam. Where a break in a dam under the jurisdiction of the State is repaired by the canal authorities of the State placing a considerable quantity of riprap back of the dam and next to the break, thus raising the height of the dam and causing damage to claimant’s property by raising of the water above the dam, the claimant’s property being situated above the dam, claimant is entitled to recover actual damages sustained.
   The claimant’s property here in question consists of an island in the Des Plaines river, of irregular shape, about one quarter of a mile long, and containing about twenty-five acres of land, situated in the city of Joliet, Will County, Illinois. The foot or south end of the island is about one-third of a mile north of the Tow-path bridge, which bridge is at the confluence of the Illinois and Michigan canal, and the Des Plaines river. The Towpath bridge is about two-thirds of a mile north of the so-called Jackson street dam.

The Jackson street dam as originally constructed was a solid cut stone structure, built by the State many years ago. It is about ten feet high, and forms the lower or south end of what is called the Upper basin. Through this basin, and over this dam passes the entire volume of water of the canal and the river, except what is drawn off for use for water power. In the spring of 1893 a considerable part of the dam was washed away by high water. The portion thus taken out consisted of several courses of stone running to within about 50 feet of the east and west ends of the dam. In order to repair this break in the dam, the canal authorities of the State, shortly thereafter, caused a considerable quantity of riprap, consisting principally of broken stone, to be placed immediately back of the dam and next to the break. This riprap was piled from one to one and a half feet higher than the original level of the dam.

The claimant alleges that by reason of the raising of the dam in this manner the water in the basin and in the river was correspondingly raised and thereby her said island damaged to the extent of five thousand dollars.

The raising of the dam in substantially the manner claimed, and as above indicated, is not controverted by the Attorney General, and it is not claimed that the increased height has been reduced, nor that it is the intention in the future to reduce the same. There is but little fall of water in this upper basin. The flow is from north to south. It is quite impossible to ascertain with any degree of exactness the precise amount of the fall. It varies some with different stages of water, and there are many other conditions which affect the problem so as to make it quite difficult, if not impossible, of exact solution. Suffice it to say with accuracy sufficient for ordinary mortals, that the fall is slight from the Tow-path bridge to the Jackson street dam. But the-south end of the island is nearly one-third of a mile north of the Tow-path bridge, and no claim whatever is made for damage to the southerly portion of the island, as that is high and dry. The part claimed to have been damaged is the northerly part of the island, consisting of six or seven acres of low land. From all the evidence we must conclude that this land is sufficiently north of the Jackson street dam, that the raising of the dam complained of had no very considerable effect upon the northerly part of the island. It must be true that the fact that some of this riprap may have stood 18 inches above the original level of the dam, did not raise the water at the dam to that height. About one-third of the dam remained as it originally was, and in addition thereto we know from observation as well as from the evidence that a large volume of the water passes through the loose stones of the riprap. Added to this, it is very clear from the evidence that when the water is high the opening under the Tow-path bridge retards the water of the river from flowing freely into the basin, and thereby becomes to an extent the controlling point, rather than the Jackson street dam.

We are strongly of the opinion that the effect of this riprap at the dam upon the part of the island claimed to be damaged is very far from that which is claimed. But we will give to the complainant the benefit of all the reasonable doubt, and for the purposes of her claim will concede that the water in the river was raised a few inches in consequence of this riprap.

The claim for damages herein is for the loss of three years crops, and for damage to the market value of the land. As to the latter we hardly feel that under the evidence there was any appreciable damage to the market value of the land. The value placed upon it by the witnesses ranges from nothing to $1,000.00 per acre— widely divergent prices to say the least. It is our judgment that the land had no very great value in the market. It is not pretended that it was available for subdivision into lots or for building purposes. It is not connected with the main land, and can be reached only by boat, unless the water is sufficiently low to drive across. It is not claimed that'the land had any special value except for market gardening. From the evidence, as well as from observation, we believe that the claimant received for the land upon its condemnation by the Sanitary District of Chicago substantially its market value, and that the slight rise in the river, if any there was, did not operate to lessen the price received for the land.

The question then remains as to the amount of damage, if any, which the claimant suffered by reason of the injury to her crops for three seasons succeeding the placing of the riprap in the dam. Upon the taking of the evidence all claim for the first year thereafter seems to have been abandoned, and the claim is for the damage for the years 1893 and 1894. For the purposes of this claim it is testified that upon these 6 or 7 acres practically no crop was raised these two years because of the increased height of the water. This evidence is in direct contradiction to what it appears she testified to in the condemnation proceedings brought by the Sanitary District of Chicago. It appears that she there testified that she raised large crops in 1893 and 1894, that in one of those years she raised 60,000 head of cabbage. Of course it was then to her interest to make the land as valuable as possible in order that she might obtain the largest possible amount in that proceeding, but it somewhat embarrasses us in this case to reconcile her former testimony with the evidence here offered. In any event we believe that if it was evident that because of this rise in the water she could not use the land, the extent of her damage would be the rental value of the land for that time.

Some witnesses have testified that the annual rental value of this land was $100 per acre. This in our judgment is so extravagant as to be almost ridiculous. From this amount the testimony as to the rental value ranges to nothing, the other extreme. Twenty-five dollars per acre for the annual rental value in our judgment would be a most liberal and even excessive price. It is conceded that not more than 7 acres were affected by the alleged rise of the water. Figured at this rate the rental value for two years would be three hundred and fifty dollars. This sum would amply compensate her for any possible damage she has sustained by the raising of the dam.

It is therefore ordered by the Commission that the said claimant, Catherine Cutting, be awarded, in satisfaction of her aforesaid claim against the State of Illinois, the sum of three hundred and fifty dollars together with the costs of the taking of the testimony on behalf of the claimant.


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    Ezekiel Phillips v. The State of Illinois.

      Opinion filed December 30, 1896.

    Penal Institutions—inmates must conform to rules. Persons convicted of crime and sentenced to penitentiary must conform to statutes governing the penitentiary and controlling the inmates thereof and although sentence failed to state that claimant is to be put to hard labor and he does perform hard labor, claimant cannot recover.
   There is no contention over the facts in this case. On October 31, 1876, the claimant was sentenced by the circuit court of Douglas county, Judge Oliver L. Davis, presiding, to the penitentiary of the State at Joliet for the term of his natural life. The judgment and sentence of the court as shown by the certified copy of the record is as follows:

“The People, etc. 785. v. Ezekiel Phillips.
Venue from Coles County.

This day came the said People by their State’s Attorney and the said defendant, Ezekiel Phillips as well in his own proper person as well as by his counsel also come and now neither the said defendant nor his counsel for him saying anything further why the judgment of the court should not be pronounced against him on the verdict of guilty heretofore entered in this cause.

Therefore it is ordered and adjudged by the court that the said defendant be taken from the bar of this court to the common jail of Douglas county from whence he came and from thence by the sheriff of said Douglas county within five days from the date to the penitentiary of this State at Joliet and be delivered to the warden or keeper of said' penitentiary and the said warden or keeper is hereby required and commanded to take the body of said defendant Ezekiel Phillips and confine him in said penitentiary in safe nad secure custody for and during his natural life from and after the delivery hereof and that he pay costs of prosecution herein and that execution issue therefor.”

The claimant under said sentence was taken to the State penitentiary at Joliet and there confined and after-wards was removed to the State penitentiary located at Chester, Illinois, and remained in the penitentiary at Chester until some time in 1893 when he was released by a pardon. He now claims that by reason of his having been put to hard labor while in the penitentiary at Joliet and in the penitentiary at Chester he should be reimbursed by the State for his labor and he asks this Commission to award him for his labor $30.00 per month for the term of his confinement, making a total sum of $5,400.00.

The counsel for the claimant contends that because the sentence of confinement does not specify that the claimant was to be put to labor, that therefore he has the right to recover from the State for the labor the claimant performed while in the two prisons. We have examined with some care the argument and brief filed by the counsel for the claimant and the authorities cited, but we are of the opinion that if the judgment of the court was sufficient to commit the claimant to the penitentiary, then the statutes governing the penitentiary and controlling the inmates of the penitentiary and requiring that convicts be kept at hard labor prevents any recovery in the case. We have therefore decided to disallow the claim.


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    H. W. Rokker v. The State of Illinois.

      Opinion filed February 9, 1897.

    1. Constitutional Law—General Assembly not to authorise payment of claims made without express authority of law. Under See. 19. Art. 4. of the Constitution of 1870, the General Assembly cannot grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made, nor authorize the payment of any claim, or part thereof, hereafter created against the State under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void.
    2. Same—contracts to be let to lowest responsible bidder. Under Sec. 25 of Art. 4 of the Constitution, “The General Assembly shall provide by law, that the fuel, stationery, and printing paper furnished for the use of the State; the copying, printing, binding and distributing the laws and journals, and all other printing ordered by the General Assembly, shall be let by contract to the lowest responsible bidder.”
    3. Same—Commissioners of State contracts. The Attorney General, Secretary of State, the State Treasurer, and the Auditor of Public Accounts are created Commissioners of State Contracts by chapter 127 R. S. The same chapter provides that the printing for the State shall be let by contract to the lowest bidder; that the Commissioners of State Contracts shall advertise for bids; that the bids shall be opened and contracts awarded; that Commissioners shall have authority to cancel contracts when, in their opinion contracts were obtained by fraud, conspiracy, or any unlawful means.

      4. State Contracts—when State will not be liable on a quantum meruit. When the provisions of the Constitution make all contracts entered into by the State without express authority of law null and void, the State having entered into such contract cannot be held liable on a quantum meruit.

    5. Statute oe Limitations—Equity follows the law. Equity follows the law in the application of the statute of limitations, and where a claim for work done is not filed within five years next after the work was performed it is barred by the statute of limitations.
   This is a claim against the State for a balance alleged tío be due claimant for printing done for the State between October 1, 1886 and July 1, 1887.

It is set forth in the statement of claim, that in pursuance of a notice published, the firm of H. W. Rokker & Co., filed bids for doing the printing for the State for two years from October 1, 1886; that contracts were awarded to said firm, and entered into between said firm and the Commissioners of State Contracts on behalf of the State for said work; and that in pursuance of said contracts, printing was done for the State from October, 1886, to May 7, 1887; that on the last named date, said firm was notified that no further payments would be made on said contracts, and that thenceforth, they would be considered and treated as of no further validity; that upon receiving such notice, said firm stopped work, and on May 17, 1887, the Secretary of State notified claimant to proceed with the unfinished work then on hand and he should be paid for it at the rates specified in the original contracts; that the work was finished and delivered to' the Secretary of State. Afterwards the Secretary of State gave numerous orders in writing for work to be paid for at the rates named in said contracts which the claimant performed and delivered to the Secretary of State; that up to the time the Commissioners of State Contracts conceded the said contracts, work amounting to the sum of $82,722.11 had been performed, upon which had been paid the sum of $24,000.00, leaving unpaid $8,722.11; that subsequently claimant performed work amounting to the sum of $9,385.16, upon which was paid $4,497.47, leaving a balance of $4,887.47, making due claimant in the aggregate $13,609.58 and interest; that the other members of the firm of H. W. Rokker assigned their interests in said contracts to the said claimant, H. W. Rokker.

The Attorney General, on behalf of the State, filed a denial of the claim, a plea of statute of limitations and two pleas of fraud, etc. It is conceded on the part of claimant’s attorney that the said contracts could not be defended which relieves us of the necessity of considering the question of their validity. The next question for our consideration, is, was there any other "contract made with H. W. Rokker & Go., or the claimant for the printing done after said contracts with Rokker & Go., had been canceled on behalf of the State, by any officer or person having authority to bind the State?

Section 19, Article 4 of the Constitution of 1870, provides that “The General Assembly shall never grant or authorize extra compensation fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made, nor authorize the payment of any claim, or part thereof, hereafter created against the State under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall he null and void”

Section 25 of same article provides that, “The General Assembly shall provide by law, that the fuel, stationary, and printing paper furnished for the use of the State; the copying, printing, binding and distributing of the laws and journals, and all other printing ordered by the General Assembly, shall be let by contract to the lowest responsible bidder.” Chapter 127, Revised Statutes, provides that the Attorney General, Secretary of State, the State Treasurer, and the Auditor of Public Accounts, shall be Commissioners of State Contracts; that the printing for the State shall be let by contract to the lowest bidder; that the Commissioners of State Contracts shall advertise for bids; that bids shall be opened and contracts awarded; that, the Commissioners shall have authority to cancel contracts when in their opinion contracts were obtained by fraud, conspiracy, or any unlawful means. We have been unable to find any express authority conferred by law upon any officer or person, other than the Commissioners of State Contracts, to contract or bind the State in respect to the matters for which claimant seeks an award in this proceeding.

Claimant seeks to recover in this case upon the theory that- the Secretary of State made a contract with him for the work and agreed to pay him at the rates specified in the original contracts. By what authority does the Secretary of State assume to make contracts of this kind? There is no such authority to be found in Chapter 127, or in any other place in the statute, that we have been able to discover, and in the absence of such authority, any contract by the Secretary of State would be null and void by the provisions of the constitution.

Claimant further insists, that in the absence of authority in the Secretary of State to bind the State by express contract the State would be liable on a quantum meruit. The law might imply a contract on the part of the State, to pay what the work was reasonably worth, in some cases, but in view of the provisions of the constitution, providing that such contracts should be let to the lowest bidder, and making all contracts made without express authority of law null and void, and prohibiting the General Assembly from providing for payment of any claim arising out of any such contract, we do not think that position tenable. If a contract could be implied against the State from the acts or doings of any of the officers of the State, the objects intended to be accomplished by the framers of the constitution would be defeated. But if the law did imply a contract on part of the State, more than five years having elapsed between the performing the last of the work and the presenting of this claim to this Commission we think the claimant would be barred by the statute of limitations. Although this proceeding should be governed by the board rules of equity, as insisted by claimant’s counsel, still equity follows the law in the application of the statute of limitations, and there is nothing in the statement of claim or disclosed by the evidence which can be considered a sufficient excuse for not having filed this claim within five years next after the work was performed.

The claim is disallowed.


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    Alexander Johnson v. The State of Illinois.

      Opinion filed February 16, 1897.

      Practice—where evidence fails to support claim. Where evidence fails to support petitioner’s claim, Court will refuse an award.
   The claimant in this case- seeks to recover for injuries he alleges to have received while a member of the Illinois National Guard at Camp Lincoln on the 13th day of July, 1895.

The petitioner, Alexander Johnson, sets forth that he enlisted as a private in Battery “B” of the Illinois National Guard on the 14th of April, 1894, and that while on duty at Camp Lincoln and under orders of his superior officers and while participating in a drill or sham battle he was directed to mount and that in attempting to do so he fell and the left rear wheel of the cannon passed over both feet.

The petition sets forth that claimant was taken to the camp hospital and his injuries treated and for five weeks he was unable to walk and that he" has never fully recovered from the effects of his injuries.

After a careful examination of the evidence in this case we are of the opinion that claimant fails to prove that he received any serious or permanent injury or that he was disabled for any length of time.

In support of his petition claimant files his own evidence and that of his comrade, Walter Wait, and that of Dr. Charles Adams, surgeon of the First Regiment, Illinois Rational Guard—and a deposition of these the only witnesses in the case we have read with much care.

It appears that a wheel with a broad three inch tire supporting with another wheel a cannot weighing twelve hundred pounds passed over the insteps of claimant’s feet.

That claimant was taken to the camp hospital and treated and that on the next day or the day following the accident he went home to Chicago.

Surgeon Adams in his evidence says, “There were no bones broken, no ligaments torn nor displacement of the bone entering into the instep.”

The evidence fails to support petitioner’s claim and we have decided in this case to refuse an award.


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    Elizabeth H. Ryan v. The State of Illinois.

      Opinion filed February 17, 1897.

    Clerical Services—reasonable allowance made for services rendered at request of State officers. This claim is submitted on affidavits showing services on which claim is based were performed at the request of the Attorney General and that charges made are just and reasonable and the claim is allowed.
   This claim is for taking and transcribing testimony to be used on behalf of the defense in the case of Catherine Cutting v. The People of the State of Illinois.

The Attorney General enters the appearance of the State and submits the cause for hearing and decision upon the affidavits attached to the claim. The affidavits show that the services were performed at the request of the Attorney General, and that the charges made are just and reasonable. It is therefore considered that the claimant, Elizabeth H. Ryan be, and she is awarded the sum of thirty-one dollars and fifty cents ($31.50) in full of her claim.


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    Morrill Sprague v. The State of Illinois.

      Opinion filed February 17, 1897.

    Clerical, Services—rendered at request of State officer. At the request of Attorney General claimant rendered services as Special Commissioner in taking depositions.
    The Court reviews the evidence and holds the charges for services reasonable and makes award.
   This claim is for services as Notary Public and Special Commissioner in taking depositions on behalf of the State in the claim of Catherine Cutting v. The People of the State of Illinois, in Commission of Claims.

The Attorney General enters the appearance of the State and submits the cause for hearing and decision upon the affidavits attached to the statements of claim.

It appears from the said affidavits that claimant rendered the services, at the request of the Attorney General, and that the charges made for such services are reasonable and just. It is therefore considered by the Commission that the claimant, Morrill Sprague, be, and he is awarded the sum of fifty dollars in full of his claim.


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    George Hingston v. The State of Illinois.

      Opinion filed December 16, 1897.

    Clerical Services—rendered State; when claim will be allowed. When there is no dispute as to the fact of employment and the amount claimed seems to be a reasonable demand for the work done for the State, award will be made.
   This was a claim filed in the Auditor’s office on March 31, 1897, by George Kingston, claiming an amount due of $178.06 for attending and reporting proceedings before Senate Committee and furnishing transcript of testimony of said proceedings.

There seems to be no dispute as to the fact of the employment and the amount claimed seems to be a reasonable demand for the work done.

It is therefore ordered that the cliamant be allowed a judgment of one hundred seventy-eight dollars and six cents in full of his claim against the State of Illinois.


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    John S. Henderson v. The State of Illinois.

      Opinion filed December 16, 1897.

    Statute of Limitations—when claim is barred. Claim filed April 2, 1897, for pay and subsistence in recruiting men for service in United States Army in August, 1862, is barred by statute of limitations.
   From the declaration and bill of particulars filed by the claimant in the above entitled cause, we gather the following facts:

That the claimant with others in the summer of 1862 was authorized by one Colonel David 0. Jenkins to recruit men for service in the army of the United States, and that on or about the first day of August, 1862, claimant began to recruit men for said service at Galesburg, Maquon and other points. That on the 27th of September, 1862, they were ordered to Peoria, Illinois, where they arrived on October 2d of the same year and where they remained in camp, drilling their men until January 7, 1863, at which time they were mustered into the service of the United States.

It further appears that claimant was commissioned Second Lieutenant of the company he helped to recruit. The bill of particulars filed by the claimant is as follows :

To pay from August 1st to December 17, 1862,
being four months and seventeen days at $53
per month.............................. $240.00
To four months and seventeen days subsistence. 221.60
Total ................................ $461.93

The claim with the evidence supporting the same was filed with this Commission, April 2,1897, to which claim the State by the Attorney General files two pleas; first, the general issue; second, the statute of limitations.

From the facts as shown by the evidence on file, we think it clear that claimant performed the services as alleged in recruiting the company of which he was commissioned Second Lieutenant, and that he undoubtedly expended certain sums of money while so engaged, but whether claimant expected the State to reimburse him for the same, or was induced to aid in recruiting said company with the knowledge of being commissioned one of the officers of the same, we are unable to determine, nor is it in the judgment of the Commission material for as the State has seen fit and proper to plead the statute of limitations to the claim, in the judgment of the Commission the claimant is barred of any right to recover, and as this Commission, has held the plea of the statute of limitations good in the case of Downey v. The State, we see no reason to change the same in this case, therefore the claim is denied.


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    John R. O’Connor v. The State of Illinois.

      Opinion filed December 16, 1897.

    Fees and Salaries—when statute does not fist compensation only a reasonable amount will be allowed. When a stenographer performing services for the State is not an official of any court and there is no statute which fixes the amount of compensation for the services such as were rendered, only a reasonable compensation for the services rendered will be allowed.
   This was a claim filed in the Auditor’s office, October 27, 1895, by John R. O’Connor, claiming eight hundred and eighty dollars ($880.00) for time and services as stenographer and law reporter in a certain cause pending before one George Mills Rogers, Master in Chancery of the Circuit Court of Cook county, in the matter of the People of the State of Illinois ex rel, Maurice T. Maloney v. Elizabeth Cooling.

On November 10, 1896, cause was submitted on testimony and on December 23, 1896, Commission allowed claimant the sum of $296.25 in full of his claim, as will further appear by opinion of the Commission filed on said date. On the same day, a motion for re-hearing was made and motion granted. Ee-hearing was set for December 30th. On December 30th motion was granted to file additional answer on part of State. On the same day, answer was filed by Attorney General as follows:

State of Illinois, Sangamon County.
John E. O’Connor v. The State of Illinois.
In the Commission of Claims.

Comes now the Honorable Maurice T. Moloney, Attorney General, and files his answer to said claim in behalf of the People of the State of Illinois, and answering says that it is true as alleged in said claim that said John E. O’Connor was employed by said Attorney General to take the testimony in the case of the People v. Elizabeth Cooling; that the price to be paid for said testimony was fifty cents per page, and fifteen cents for carbon copy per page. That 1,825 pages were so furnished by said claimant both of original and carbon copy. That said claimant also made a condensed abstract of said evidence as alleged, of 395 pages, and a carbon copy thereof, at the request of the Attorney General.

That said claim is just and in pursuance of agreements made with said claimant and the State of Illinois can not and ought not to object to the allowance thereof for $880 as claimed, said amount being in accordance with usual customary and reasonable charges for such work.

Said Attorney General therefore admits that there is due to said claimant the sum of $880 as claimed and consents to the allowance of said claim in that amount.

(Signed.) M. T. Moloney,

Attorney General.

On February 16, 1897, Attorney General makes a motion to withdraw answer as filed December 30,1896, viz:

State of Illinois, Sangamon County.
John R O’Connor v. The State of Illinois. )
In the Commission of Claims.

And now comes Edward C. Akin, Attorney General of the State of Illinois, and by leave of said Commission, withdraws the answer of Maurice T. Moloney, late Attorney General of this State, said answer having been filed therein December 30, 1896, after said Commission had acted upon the claim of the said claimant and allowed the same in the sum of $296.25. And the Attorney General here now objects to the petition for re-hearing filed herein December 28, 1896, and also objects to the allowance by said Commission to any other or further sum than the sum of $296.25 allowed said claimant as aforesaid.

(Signed.) Edward C. Akin,

Attorney General.

This motion was set for hearing on February 16th. It seems it has never been disposed of. On February 23d cause was continued generally. And now the matter comes up for re-hearing upon the original evidence as submitted. Opinion filed by former Commission is as follows:

“State of Illinois.
In the Commission of Claims.
John R. O’Connor v. The State of Illinois.
OPINION OF THE COMMISSION,
By Samuel Alschuler, Commissioner.

From the undisputed evidence upon this claim it appears that the claimant was employed as stenographer, by the Attorney General, to take and report testimony in the suit of Attorney General, etc. v. Elizabeth Cooling, pending in the circuit court of Cook county. Said testimony was taken before George Mills Rogers, to whom as Master in Chancery of said circuit court the said cause had been referred to take evidence and report conclusions.

It appears from the evidence that there was taken and transcribed, on behalf of the State, 1,825 pages of testimony, for which the claimant charges fifty cents per page, making $912.50. He further charges for one copy of such testimony at fifteen cents per page, making $273.75—a total for that service of $1,186.25. In addition to this the evidence shows that the claimant made a statement in narrative form of the evidence so taken, which he charges as 395 pages of abstract at one dollar per page, a copy of same at 25 cents per page—a total for this service of $493.75. Upon the claim for taking and transcribing the testimony he has received $800.00, leaving a balance of $880.00, for which he demands an award against the State.

It does not appear that the claimant is an official stenographer of any court. There is no statute which fixes the amount of compensation for the services such as were rendered by the claimant. The compensation fixed by law for similar services is 15 cents per folio of one hundred words, and from observation and investigation we believe that two and one half of such folios to a page of type writing is the ordinary and usual proportion in about the place where such court is held. There is no law fixing the price of a copy, but again drawing upon our experience we have no hesitancy in saying that 15 cents per page is more than ought to be charged. For a carbon copy it requires no further effort than the insertion of a sheet of carbon and another sheet of paper, together with the additional cost of the material. The claim for this first amount was presented for payment to the 39th General Assembly, and presumably the merits of the claim were there investigated, and the sum of $800.00 was appropriated and paid upon the claim. There being no statutory compensation, and the amount of this appropriation being so near, what in our judgment would be a reasonable compensation for the services rendered up to that time, we cannot but believe that the Legislature intended the amount so appropriated to be in full payment of the bill rendered. Under these circumstances, so much of the claim as accrued before, and was presented for payment to the 39th General Assembly is disallowed.

Since the presentation of this claim as aforesaid, it appears from the evidence that the claimant rendered pages of abstract at $1.00, and a copy thereof at 25 cents per page. Conceding this service to be a proper one for which just compensation should be made by the State, (and there is no evidence to the contrary) the Commission is nevertheless of the opinion that the charges are exorbitant. The claimant states that the services consisted in a statement of the testimony in narrative form instead of by questions and answers. It does not appear to have been an abstract made for the purpose of presenting the evidence in a condensed form as required by the courts of appellate jurisdiction, but merely a narrative statement, and why he charges 25 cents per page for a carbon copy is quite beyond our comprehension. It is certainly no greater task to make a carbon copy of an abstract of testimony than of the testimony itself. It requires no more labor and no more material. If we regard 15 cents per page too great a charge for a copy of the testimony, certainly 25 cents per page is too high for a copy of the abstract. Under all the circumstances the Commission feels that a very liberal allowance for the abstract and copy would be 75 cents per page’—making $296.25.

It is therefore ordered that the said claimant be awarded in full for his aforesaid claim against the State of Illinois the sum of two hundred and ninety-six dollars and twenty-five cents.”

The answer of the Attorney General of December 30th appears as an attempt at a confession of judgment; but why the State should be called upon to pay more than a reasonable price for work performed, we cannot conceive and we know of no honest rule by which this could be tolerated. We believe the judgment allowed by the former Commission is a liberal compensation for the work done.

Therefore we sustain the judgment of the former Commission and order that the said claimant be awarded in full of his said claim against the State of Illinois, the sum of two hundred and ninety-six dollars and twenty-five cents.


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    John Downey v. The State of Illinois.

      Opinion filed December 16, 1897.

    Statute of Limitations—Section 15 of Chapter 88, R. S. construed. A claim for injuries received in May, 1873, is barred by statute of limitations if same is filed on April 29, 1897.
   The demand of the claimant, in the above entitled cause for the sum of $1,000 is made for injuries received by him while performing certain work in or about the State House.

From the bill of particulars and the evidence filed by the claimant the following facts appear: That during the month of May, 1873, the claimant with others were engaged in setting the heater for the State House and while so engaged, in attempting to place a certain iron casting the same was thrown on his hands through the carelessness of a co-employe thereby crushing his hands very badly. It further appears from the files that on the 29th day of April, 1897, the above claim was filed in the Auditor’s office and that on July 10th, 1897, the State by the Attorney General filed a plea of the statute of limitations; to which plea the claimant, by his attorney, filed his replication, September 24, 1897; to which the State by the Attorney General filed a demurrer. We do not deem it necessary to discuss the question as to the liability of the State upon the facts submitted as it is apparent from the claimant’s own statements set forth in his claim and the bill of particulars that he is barred of any right to recover under the statute of limitations in force in this State as prescribed in Sec. 15, of Chapter 83, of the Revised Statutes, and that the plea of the same by the State is proper.

The demurrer filed by the State to the replication of the same is sustained.

Claim dismissed.


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    M. S. Carr v. The State of Illinois.

      Opinion filed December 16, 1897.

    Statute of Limitations—when claim is barred. When cause of action accrues on December 17, 1862, and claim is filed April 2, 1897, pleading of statute of limitations operates as complete defense and claim will be denied.
   This was a claim filed in the office of the Auditor of State, April 2, 1897, by M. S. Carr, for money expended in organizing and recruiting “A” company of the Fourteenth Illinois Cavalry, in the war of 1861. The files show that the claimant was commissioned as captain of the company and was mustered on the 17th day of December, 1862; but that company “A” was not mustered into the service of the United States until a later date. That claimant recruited and organized “A” company of the Fourteenth Illinois Cavalry Volunteers during the months of August and September, 1862; and, from that time on, having been elected as captain of the company in October, 1862, drilled his men at Peoria, Illinois, until the Fourteenth Cavalry Regiment was regularly mustered into the service of the United States on January 7, 1863.

That claimant expended his own money and was not paid from August 1,1862, to December 17, 18’62; and, it is for this service and for amounts of money expended that this claim is filed.

The items are for four months and seventeen days recruiting at $70 per month.......... $319.66 Four months and seventeen days subsistence. 221.60 Total ................................ $541.26

To this claim the State files two pleas; first, the general issue; second, the statute of limitations. We do not question the justness of the claim, but the evidence shows that the same has long since been barred by the statute of limitations, and the statute of limitations having been pleaded we are of opinion that it operates as a complete defense to the claim.

In the claim of Downey v. The State, decided at the present session, the Commission so held and we see no reason for changing the rule announced in that claim. It is therefore the opinion of the Commission that this claim, should be denied.

•Claim dismissed.


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    Henry W. Carpenter v. The State of Illinois.

      Opinion filed December 16, 1897.

    Statute of Limitations—when claim is barred. When, cause of action accrued in December, 1862, and claim is filed April 2, 1897, claim is barred by statute of limitations.
   This is a claim filed by Henry W. Carpenter in the Auditors office, April 2, 1897, claiming an amount due of four hundred sixty-one dollars and ninety-three cents, for services rendered in recruiting men for company “A” Fourteenth Illinois Cavalry Volunteers from August to December, 1862. To the claimant’s declaration, the Attorney General has filed the pleas of general issue and of limitations.

The evidence in support of this claim is meager; but if the claim were just, under the rule adopted by this Commission in the cases of Downey v. State, John S. Henderson v. State and Morgan S. Carr v. State, we would hold the claim barred by statute of limitations. Therefore the claim is dismissed.


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    State Bank of Chicago, Administrator of the Estate of Samuel E. Hobson, Deceased v. The State of Illinois.

      Opinion filed January 18, 1898.

    1. Municipal Corporations—The West Chicago Parle Commissioners are a municipal corporation with, the power to assess and collect taxes with the Park District so created for the special corporated purposes of its creation.
    2. Same—not liable for negligent acts of servants. Municipal corporations created merely for purposes of civil administration are not liable for the tortious acts or negligence of its officers.
    3. Same—officers are personally responsible for their negligence. Officers of public corporations are personally responsible for their own negligence or misconduct in the performance or attempted performance of their official duties.
    4. Respondeat Superior—public and State officers do not come within doctrine of. Public or State officers with only certain powers and duties enjoined upon them by the statutes do not come within the doctrine of respondeat superior.
    5. Survival of Actions—for death from negligent act no—survival at common law. Cause of action for injuries resulting in death, did not survive to the executor or administrator at common law.
    6. Personal Injuries—survival of action given by statute. The statute provides, “that whenever the death of a person shall be caused by wrongful act, negligence or default, and the neglect or default is such as would, if death had ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who, or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, nothwithstanding the death of the person injured, and although the death shall have been caused under such circumstance as amount in law to felony.”
    7. Same—upon what right to maintain actions after death of person injured depends. The right to maintain an action after the death of a party injured, depends entirely upon whether if death had not ensued the decedent could have maintained an action and recovered damages against the party sued.
    8. State Liability—when State is bound by act of legislature. The State is not bound by or included in any act of the legislature unless expressly named or necessarily implied, to give effect to the act.
   This claim was filed in the Auditor’s office, April 22, 1897, by the State Bank of Chicago, a corporation duly organized and existing under and by virtue of the laws of the State of Illinois, authorized and empowered, and duly qualified to act as administrator of the estate of Samuel E. Hobson, deceased.

The claim filed in this case, shows, that Samuel E. Hobson came to his death on the 17th day of October, 1895, in the city of Chicago, in the County of Cook, and State of Illinois, and it is claimed by the claimant to have been in the following manner; that is to say, said State of Illinois, acting through and by the South Park Commissioners, were engaged in the work of demolishing and tearing down certain buildings and structures upon the premises lately occupied by the World’s Columbian Exposition, in Jackson Park, in the city of Chicago, aforesaid; and in or about said work, used and permitted to be used, certain dangerous explosives, known as dynamite and nitro-glycerine. That said Jackson Park was a public park, maintained for the use, enjoyment and recreation of the public generally; and that all persons were permitted to assemble and congregate there for pleasure at all times.

That said Samuel E. Hobson was, on the day last above mentioned, rightfully in said park, and was rightfully and properly in the exercise of all due caution, care and prudence, enjoying the same as a public park. That said State of Illinois, acting through and by said South Park Commissioners, in and about the prosecution of said work, wholly failed to use proper care to avoid injury to persons passing through said park, in the vicinity of the place, where said work, was being conducted and where such explosives were being used; and wholly failed to give any notice or warning to said Samuel E. Hobson, who was then and there in said park and near enough to the place where such explosives were being used, to be struck by materials by such explosion. That when such explosives were about to be used, ignited and discharged at the place aforesaid, although .the State of Illinois, through said South Park Commissioners, had full notice that Samuel E. Hobson was in said park, and near said place as aforesaid, wholly failed and neglected to give any warning or notice to persons then in said park, and near the place aforesaid, and to the said Samuel E. Hobson, to withdraw to a place of safety, and after the discharging of such explosives, at about the noon hour, the said State of Illinois, acting through said South Park Commissioners, who were in personal charge of said park, and who caused said explosives to be discharged at the place aforesaid, in said park; and, in consequence of said explosion a large piece or mass of metal was thrown by such explosion, and caused to strike, with great violence and force, the said Samuel E. Hobson, who was then and there in said park, and was then and there in all due exercise of care on his part, and the said Samuel E. Hobson was then and there, greatly bruised, wounded and injured. That he thereafter, on said last mentioned date died by reason of such injuries; whereby this claimant as administrator as aforesaid, and on behalf of the widow and next of kin, has sustained damages to the amount of $5,000.

To this claim, the State files a plea, that it does not owe the said claim or any part thereof, in manner and form as therein alleged; and is in no way indebted to the said claimant, the State Bank of Chicago, administrator of the estate of Samuel E. Hobson, deceased.

It was stipulated by the parties, that- the evidence used at the coroner’s inquest shall be used as the evidence on this hearing; and that the said Samuel E. Hobson left surviving him the following as his only heirs at law and next of kin: Clara Hobson, his widow; Edwin N. Hob-son, his father; Lousadia Hobson, his mother; Beesheba Phillips, Elizabeth Heilwagon and Effie Waller, his sisters; and George L. Hobson, his brother.

The evidence shows in this case, that the Columbia Salvage or Wrecking Company contracted to remove the structures and buildings erected by the World’s Columbian Exposition, in Jackson Park. That the blast that killed Samuel E. Hobson was fired by Bruno Kniffler, a mechanical engineer, in the employ of the said Salvage and Wrecking Company without any permit from Mr. Jacob F. Foster, who was the superintendent for the South Park Commissioners. The use of the dynamite and explosives was prohibited, without the permission of the said superintendent.

And the evidence very clearly shows that Mr. Nusbaum, the superintendent of the Salvage Company, directed Kniffler to use dynamite to wreck the structure of the Machinery Hall building, that they were tearing down; it also shows that he was told before he used the explosives that he must get a permit from Mr. Foster, the superintendent, and he said he would. He did not, however, but directed Kniffler, his engineer, to proceed with his experiment, that of wrecking the Machinery Hall by the use of dynamite.

It is true that Mr. Husbaum testified, that he told Park Officer Ledwith that he was going to use explosives, Thursday noon, and for him to tell Capt. Kelly of the fact, and if Capt. Kelly had any objections, he could notify Kniffler not to proceed. This evidence shows clearly that the Columbia Salvage or Wrecking Company had no permit whatever, from the Park Superintendent, and had no right whatever, to use the explosive in the park and that they did use such explosives entirely on their own responsibility. It also shows that neither the Park Superintendent nor the Park Foreman had any knowledge or notice that the Salvage Company were intending to blast without a permit from the Superintendent.

While it may be true that Ledwith, the Park policeman, was told by Mr. Nusbaum that he was intending to use dynamite to wreck the structure of Machinery Hall, that they were then tearing down, that officer told Nusbaum, that it was necessary to obtain a permit from Mr. Foster, the superintendent of the Park Commissioners, before he had any right to use explosives.

Mr. Dugan, the Park foreman, also informed Mr. Nusbaum, the superintendent of the Salvage Company, that if they were going to do any blasting, it would be necessary for them to get a permit from Mr. Foster the superintendent of the South Park System, and then Mr. Foster could notify him.

Nusbaum’s evidence is to the effect, that he told Park Officer Ledwith that Kniffler was going to use some explosives, Thursday noon, and for him to tell Capt. Kelly of the fact, and if Capt. Kelly had any objections, he would notify Kniffler not to proceed with the experiment.

Thursday noon, about ten o’clock, Park Officer Led-with came into his office and told him, that Superintendent Foster had gone up the road and that if he intended to see him he should do so then. While Mr. Nusbaum does not state what further conversation then took place between him and Ledwith, Ledwith, in his evidence, states, that he told Nusbaum that before he could use any explosives, he must get a permit from Mr. Foster, the superintendent, and Nusbaum said he would.

He also states that he afterwards went down to* see Nusbaum, if he had notified Mr. Foster, and Nusbaum said that he had not, and that he had used explosives before and that the men around had been notified.

On the question of notice then, to the Park Commissioners, the evidence discloses, that Ledwith, the policeman, Dugan, the foreman and Morrison, his assistant, had heard some blasting was to be done, and the evidence also discloses that these parties each told Nusbaum, the superintendent of the Salvage Company, that it could not be done without a permit from Mr. Foster, the superintendent.

Under this evidence there is no question, that the Park District would not be liable for the negligence which resulted in the death of Samuel E. Hobson. The Columbia-Salvage and Wrecking Company or the officers of that, company, are the parties who are responsible for the negligence which resulted in the death of Samuel E. Hobson. In the business of demolishing the structures in Jackson Park, they decided it would be better to use-explosives to further their business interests and remove the structures as rapidly as possible, and in order to do so, directed that a blast should be fired without any permission whatever, which resulted in the untimely death of Samuel E. Hobson.

They and they alone are responsible for the accident..

It also appears.from the files in this case, that an action of trespass on the case, was instituted against the South Park Commissioners in the Cook County circuit court, by the present claimant. That court decided that such an action wotild not lie and dismissed the proceeding, rendering judgment in favor of the-Park Commissioners for costs, and that judgment remains in full force at this date. The judgment rendered in that case judicially determines that the Park Commissioners were not legally liable for the death of Hob-son.

A recent case decided by Mr. Justice Waterman— Charles Bacher v. The West Chicago Park Commissioners—is in point. That case holds that the West Chicago Park Commissioners is a municipal corporation having certain limited powers granted to it by the legislature. That members of the board of West Chicago Park Commissioners are agents by whom, in part, the people of the State carry on the government. Their functions are generally political and concern the State at large although, they are to be discharged within the Town of West Chicago. That these Park Commissioners come within the term of officers.

Wilcox v. The People, 90 Ill., 188;

West Park Commissioners v. The City of Chicago, 152 Ill., 393.

“Ordinarily the principal is liable for the negligent acts of its servants in the course or line of his employment, in consequence of which a third person suffers injury, upon the principle of respondent superior, but a distinction exists in the case of municipal corporations, as a municipal corporation is not liable for the tortious acts or negligence of'its officers.

Dillon on Mun. Corps., Secs. 975-978.

Public or State officers with only certain powers and duties enjoined upon them by the statutes do not come within the doctrine of respondent superior. Applying this rule, the South Park Commissioners being merely appointive officers, with certain statutory powers and mere subdivisions of the government. They are mere assistants to the State in the exercise of its functions; not created at their own instance and request, but for the purpose of aiding and assisting the sovereign power of the State in carrying on the functions of the government and they are not liable for the negligence or tortious acts of its servants. This distainction exists between municipalities created alone at the instance of the sovereign power by general law and cities, incorporated towns and villages created for their own benefit.

Where municipalities are created and instituted by general law, there can be no liability for an action for damages, occasioned by the negligent acts of its servants.

Waltham v. Kemper, 55 Ill., 346.

At common law an action will not lie for injuries occasioned by the negligence of the officer or servants of counties, townships, school districts, road districts, or drainage districts, for injuries resulting from the negligent performance or non-performance of their duties, “and there is no distinction in the application of this rule between neglecting to do or perform an act which ought to have been performed, and the performance of a duty in a negligent manner.”

2 Dil. on Mun. Corps., Secs. 962-963;

Hedges v. County of Madison, 1 Gil., 567;

Town. of Waltham v. Kemper, 55 Ill., 346;

Bussell, Admr. etc. v. Town of Steuben, 57 Ill., 35;

Hollenbeck v. Winnebago County, 95 Ill., 148;

Elmore v. Drainage Comrs., 135 Ill., 269;

Cooney v. Hartland, 95 Ill., 516.

The rule laid down in Waltham v. Kemper, 55 Ill., 346, is as applicable to counties and other governmental agencies or corporations, as it is to towns; but as to cities and villages, a different rule applies and a distinction between the two classes of corporations is clearly pointed out.

The Board of South Park Commissioners is a body politic and corporate and belongs to the first class. It was created by an act of the legislature, approved February 24,1869. It is the State, through the Commissioners appointed by the Governor, doing the work of creating and maintaining the parks. They are responsible to the Governor, and no one but him, and are removable by him.

The municipality pays only the expenses of carrying on the work and has no voice as to what shall be done or who shall be employed. It was not the intention of the legislature that the Board of South Park Commissioners, as a corporation, should have the powers or assume the responsibilities of a city or village. The money so raised by taxation is raised for certain specific purr poses, and cannot be diverted from those purposes to the payment of damages caused by the negligence of its officers or servants. It cannot be said that the Board of South Park Commissioners are agents of the State in any such sense as would make the State in any way responsible for the negligence of its officers.

The Board of Park Commissioners is a mere municipal corporation with the power to assess and collect taxes with the Park District so created for the special •corporate purposes of its creation.

The People, ex rel v. Salomon, 51 Ill., 37;

The People v. Morgan, 90 Ill., 558;

Dunham v. The People, 96 Ill., 331.

“It is a familiar rule, however, that officers of public corporations are personally responsible for their own negligence or misconduct in the performance or attempted performance of their official duties.”

Tearney v. Smith, 86 Ill., 391;

Skinner v. Morgan, 21 Ill. App., 209;

Harris v. Carson, 40 Ill. App., 147.

The claim filed here, however, is against the State, and in the absence of any authority making the State ■expressly liable for the negligence or misconduct of officers of public corporations, it cannot be held liable. In this case it has been judicially decided that the Board of South Park Commissioners are not liable in their corporate capacity. How then can it be now claimed that the State is liable for the acts of the Board of South Park Commissioners ? Such a claim can have no foundation. In this case the remedy is clearly against Mr. Kniffler, who fired the blast, or against the Salvage Company in whose employ Mr. Kniffler was acting as mechanical engineer.

This claim is founded on Chapter 70 of the statutes ■concerning “Injuries to Person.”

Causes of action for injuries resulting in death, did not survive to the executor or administrator at common law. To remedy this defect our statute was enacted.

It provides “that whenever the death of a person shall be caused by wrongful act, negligence or default, and the neglect or default is such as would, if death had ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who, or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.”

The right to maintain an action after the death of a party injured, therefore, depends entirely upon whether if death had not ensued the decedent could have maintained an action and recovered damages against the party sued.

Holton v. Daly, 106 Ill., 131.

In case Samuel E. Hobson had not died from the injuries which he received, at the time of the blast, but had lived possibly maimed for life, would there have been any claim against the State of Illinois?

Would not Mr. Hobson have been compelled to have instituted suit against the Salvage Company or some of its officers? Would any one contend they were not liable to respond in damages for the injuries he thus sustained?

The State is not bound by or included in any act of the legislature unless expressly named or necessarily implied, to give effect to the act; and the State of Illinois is not included in the chapter of the revised statutes above quoted. That act applies only to private individuals, associations or corporations.

We are therefore of the opinion that there is no liability existing against the State of Illinois for the payment of this claim; and believing that neither justice, equity or law demands the payment of this claim by the State; and believing that it would be laying down a rule, that could not be safely followed hereafter, we are of the opinion that this claim should not be allowed.

Claim dismissed.


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    Elijah B. Sherman v. The State of Illinois.

      Opinion filed August 10, 1898.

      Contracts—with State officer for services; reasonable compensation allowed. A Master in Chancery being requested by the Attorney General to take evidence and make report thereof will he allowed a reasonable and customary compensation therefor.
   On the 27th day of October, A. D. 1893, the case of the People of the State of Illinois against the Illinois Central Railroad Company was pending in the circuit court of the United States for the northern district of Illinois, and was by an order of the court entered therein referred to the claimant as master in chancery to take proof and report the same to the court.

The claimant, as such master in chancery, took the testimony on behalf of the State of Illinois and presented his bill for the same and the Legislature at its session in January, 1895, passed an appropriation for the amount of bill then presented, being the sum $387.20, which was paid in July following.

After this bill had been presented and paid it because necessary to take further proofs in behalf of the State in rebuttal, and upon the request of the Attorney General the master in chancery took such additional evidence and made report thereof to' the court pursuant to the order of reference and for such additional service charged and was allowed by the court $75.

This additional allowance was made on the 12th day of March, A. D. 1897, on due notice to the counsel representing the State of Illinois, and the order was entered by the circuit court of the United States fixing the compensation for such additional service at the sum of $75.

Such additional service was reasonable and satisfactory to the Attorney General representing the State and was the usual customary and reasonable fees and compensation of the masters in chancery in circuit courts of the United States, and has never been paid. It is therefore considered by the Commission that said sum so claimed by the claimant is reasonable and just and that said sum of $75 is a proper allowance to be made and the sum of $75 is accordingly awarded the claimant.


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    The Arms Palace and Stock Car Company v. The State of Illinois.

      Opinion filed August 10, 1898.

      Contracts—with State to transport horses to encampment I. N. G. Claimant made contract with Adjutant General for furnishing cars for transportation of horses from Bloomington and Chicago to Springfield and return. Court reviews evidence and finds such cars were necessary and were used for transportation of horses for the I. N. G. encampment at Springfield, Illinois, and makes award.
   It appears from the statement of claimant, and the papers on file before the Commission, that the claimant, The Arms Palace and Stock Car Company is a corporation organized under the laws of the State of Ohio, and qualified to do business in the State of Illinois, and in pursuance of the business for which said corporation was organized, that of furnishing horse and stock cars for the transportation of animals, did on the 10th of July, 1896, enter into a contract with the military authorities of the State of Illinois represented by C. C. Hilton, Adjutant General of the State of Illinois, to furnish one car for the transportation of animals from Chicago to Springfield and return; for which service the State of Illinois became bound through its officers to pay to the said claimant the sum of thirty-two dollars. And afterward on July 25, 1896, the claimant entered into a contract with the same representatives of the State of Illinois to furnish two cars for the transportation of stock from Bloomington, Illinois, to Springfield, Illinois, and return for which service the said officers of the State of Illinois agreed to pay the sum of forty-eight dollars to the claimant.

It further appears from the papers on file before the Commission, that the said cars were necessary and were used for the transportation of horses for the use of the I. 1ST. Gr. encampment at Springfield, Illinois.

It further appears from the files that the claimant in every way fulfilled his contracts and that the claimant has not received any part of the consideration named in the contracts.

We do not deem it necessary or essential to go into the facts relative to the filing of this claim before this Commission ; suffice it to say that in the judgment of the Commission the services were rendered by the claimant for the benefit of the State of Illinois, in a legitimate channel, and at the request of persons in authority to make such request, and to legally bind the State by such contracts. In the judgment of the Commission the charges are reasonable and should have been paid at the time the service was rendered.

The judgment of the Commission is that eighty dollars, the full amount demanded by the claimant is awarded and appropriation for the same recommended.


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    Edwin S. Munroe v. The State of Illinois.

      Opinion filed October 5, 1898.

    Bent of Armory—when claims will not be allowed. When, a claimant for additional rent on a building let by him as an armory has signed vouchers or receipts for the amount of the rent regularly, which vouchers were sent to the Auditor as a basis for the warrants which he was to draw money upon, his claim for additional rent will not be allowed.
   This was a claim filed March 15, 1885, by Edwin S. Munroe, for a supposed balance for rent of armory. The claimant alleges he was the owner of a building in Joliet on the corner of Chicago and Clinton streets, the third story of which was used for an armory for company “B,” 3d Infantry, formerly 4th Infantry, which was rented November 1, 1888, and was occupied by said company from that time up to the filing of this claim at an annual rental of four hundred •dollars per year.

The evidence shows it was paid annually by Captain F. A. Jackson, commanding the company, which sum the evidence discloses was mostly derived from the State of Illinois on warrants of the Auditor.

It also appears in evidence that from November 1, 1889, to January 1,1893, five hundred dollars was claimed as rent, when the claimant was notified that no more than four hundred dollars annually would be paid. The deficiency claimed is $216.00 on a basis of five hundred dollars per year from January 1, 1889, to January 1, 1893. The rental was with Captain Jackson and the deficiency period claimed is from July 1, 1890, to January 1, 1893.

The evidence discloses claimant was paid for that period as follows:

January 1, 1891............... $200.00
August 17, 1891 .............. 200.00
March 25, 1892 ............... 234.00
October 19,1892 ............... 200.00
February 20, 1893 ............. 200.00
Total ................... $1,034.00

The evidence discloses that vouchers or receipts for the amount of the rent were signed by claimant for his pay regularly. These vouchers were sent to the Auditor as a basis for the warrants which he was to draw money upon. These receipts were required in advance in triplicate which claimant was required to sign, and -claimant when he signed these vouchers knew precisely what he was being paid from the State for the use of his armory.

Claimant in his evidence, however, states he received money collected by Captain Jackson from outside sources to pay additional rent to make up the deficiency.

Claimant in Ms evidence states that he did not expect Captain Jackson or company “B” to be personally liable for bis rent, and states that practically all the money due for rentals came through warrants from the Auditor of Public Accounts.

The evidence shows that claimant has receipted the State in full for the period of time claimed and that his vouchers then placed on file were introduced covering the identical period claimed by the claimant, showing conclusively that he has been paid in full by the State all that he is entitled to. We are therefore of opinion the award should be denied.


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    C. Kinney Smith v. The State of Illinois.

      Opinion filed December 14, 1898.

      Waters—land damaged by water from feeder to canal. The Commission reviews the evidence and awards the claimant damages in accordance with an agreement with the Attorney General.
   It appears from the files in this case that the claimant, 0. Kinney Smith, was the owner of certain real estate situated in Sections One (1), Six (6) and Seven (7), in township number thirty-three (33), range three (3) east of the 3d P. M., the same lying north of Fox river near the city of Ottawa, in the State of Illinois. It appears from the statement of the claimant as set forth in his claim that in the months of April and May, 1892, and also in the month of March, 1893, the said premises were partially overflowed by water from a feeder of the Illinois and Michigan canal which had been so negligently constructed as to be incapable of carrying the water in times of flood such as happened on the different times mentioned, thereby causing damage to the said property of claimant.

It further appears that on the 21st day of August, 1893, the claimant filed in this Commission his claim for damages amounting to the sum of four thousand two hundred and twenty-five dollars.

The said claim has been pending in this Commission ever since. A large volume of the evidence was taken on behalf of the claimant and also by the State, but prior to hearing of arguments by either party before this Commission, the claimant through his attorney agreed with the Attorney General on behalf of the State to accept the sum of two hundred and fifty dollars in full of all damages set forth in said claim. •

The Commission after examining the evidence and hearing the statement of the Attorney General concerning the same are of the opinion that the payment of the said amount to the claimant would be no more than simple justice, and we therefore award to the claimant the said sum of two hundred and fifty dollars and recommend that the legislature appropriate such amount to pay said award.