text:
    (No. 1246
    Dan Perry, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1928.

      Rehearing denied October 24, 1928, second rehearing denied March 28, 1929.

      George W. Hogan, Jr., and Noah Gullett, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank E. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant was employed as an attendant at the Jacksonville State Hospital for the insane, and while-so employed, on April 20, 1926, he was attacked and severely beaten by one of the patients. Claimant was taken to the nurses’ home in the hospital where he remained under the care of the hospital physicians for about one month and a half. He then went to work again but was unable to perform his duties and finally left the institution. He claims the injury caused him to become deaf in his right ear and permanently impaired the sight of his right eye; tha,t it has affected his nerves and causes him to suffer constant pains in his head, and has so affected him otherwise that he is unable to perform manual labor, and asks for an award of $10,000.00 damages. The Attorney General has filed no plea on behalf of the State and the cause will be tried as though a general traverse of the declaration had been filed.

Before a claimant can be awarded damages against the State he must bring himself within the provisions of some law justifying, the award, and unless he does so his claim must fail. In this case claimant was an employee of the State at the time the injury complained of was received. But that fact, alone, does not entitle him to compensation. If the State had been engaged in a business coming within the classes mentioned in section 3 of the Workman’s Compensation Act, then his right to compensation would be determined under the provisions of that law, for section 6 of the act creating the Court of Claims gives this court power to determine the liability of the State for accidental injuries or death suffered in the course of employment by any employee of the State. But such determination must be made in accordance with the rules prescribed in the Workman’s Compensation Act. As the care of the insane in a hospital is not one of the classes of business declared to be extra hazardous by section 3 of that act, claimant cannot be awarded compensation under that law though his injury may have arise'n out of and in the course of his employment.

The declaration of claimant alleges that on the date of his injury he “was performing his usual and customary duties as an attendant at the Jacksonville State Hospital * # * and as such attendant had charge of what is commonly known and called the detailed gang consisting of nineteen violent patients who were considered the worst patients mentally that were in the said Jacksonville State Hospital.” It is apparent from this allegation that claimant was employed to attend and control insane patients at the hospital and that he knew such patients were liable to become violent.. His employment was voluntary and when he entered upon his duties as such an attendant he assumed the ordinary perils of the work in which he was engaged. (Mclnturf v. State, 5 Ct. Cl. 314; Neighbors v. State, 5 Ct. Cl. 238; Consolidated Coal Co. v. Haenni, 146 Ill. 614; Illinois Terminal R. R. Co. v. Thompson, 210 Ill. 226.) In the Tompson case, supra, at page 236, the Supreme Court announces the rule of assumed risk in the following words: “It is true that, when a servant enters into a contract of hire with the master, he assumes the natural and ordinary risks of the business in which he engages, that is to say, he assumes all the risks ordinarily incident to the employment, and is presumed to have contracted with reference to such risks.” It is a matter of common knowledge that insane persons are liable to become violent aud that their control and management is attended with danger, and one who voluntarily undertakes the duties of their supervision assumes all the risks ordinarily incident to such employment. If the Jacksonville Hospital were a private institution for the care and treatment of the insane, it is manifest claimant could not sustain a cause of action against it for his injuries. And certainly the State is not obligated where a private institution would not be unless there be some statute imposing such obligation upon it. We have been referred to no such statute and know of none.

Claimant urges, however, that he should be awarded compensation as an act of justice and equity regardless of the principles of law involved. The jurisdiction of this court is fixed by law and it has no powers except those given by the Act creating it. Section six of that act provides: ‘ ‘ The Court of Claims shall have power to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State, as a sovereign commonwealth, should, in equity and good conscience discharge and pay. ” It is obvious from the language of this statute that no claim against the State can be allowed by this Court unless there is either a legal or equitable obligation of the State to pay it. If there is either a legal or equitable obligation resting upon the State to pay a claim, then justice requires that the State should pay it.

What then is “justice” and “equity”? It has been said that “justice consists simply in letting every one enjoy the rights which he has acquired in virtue of the laws.” In a judicial sense, justice is nothing more' or less than exact conformity to some obligatory law; and all human actions are either just or unjust as they are in conformity to or in opposition to law. (Borden v. State, 11 Ark. 519.) In other words, justice is merely giving to one that to which he is entitled by law. And unless he can point to .some law giving him the right or privilege claimed, he cannot insist on it as an act of justice. Neither can he invoke the aid of equity to secure a right to which he is not entitled under some law. “A court of equity cannot, by avowing that there is a right but no remedy known to the law, create a remedy in violation of law, nor, where there is no legal liability, can equity create one.” (10 R. C. L., sec. 132.) Equity is not the chancellor’s sense of moral right, or his sense of what is just and equal. It is a complex system of established law. (Savings Inst. v. Makin, 23 Me. (10 Shep.) 360.)

Claimant’s idea, seems to be that equity as used in this statute is nothing more or less than the power of the court to decide each case according to a high standard of morality and abstract right, regardless of the law. Such a construe tion would leave this Court with practically no limitation upon its power to render judgments against the State. It is a principle of universal application that a sovereign state cannot be sued in its own courts without its consent. (In re City of Mt. Vernon, 147 Ill. 359.) The State may consent to be sued, and if it does the suit can only be brought in the forum prescribed and for the causes set forth in the statute. Statutes permitting suits against the State, being in derogation of its sovereignity, must be strictly construed. (25 R. C. L., sec. 52.) When the legislature created this court and clothed it with power to hear claims against the State we do not think it thereby intended to waive the right of the State to interpose any leg’al or equitable defense it might have to the demands of claimants. Such a construction would give this Court the power to hold the State liable for the malfeasance and misfeasance of its officers, the torts of all its agents, and all damages caused in the exercise of its governmental and police powers. Certainly the Legislature did not intend such a radical and far reaching change in the law by the use of the term “equity” in the statute fixing the powers of this court.

Claimant’s demand, not being based upon any legal or equitable right, cannot be allowed, however strongly it may appeal to the sympathy of the Court. The Court can only enforce the law as it is, it has no power to change it. The claim will therefore be denied and the cause dismissed.

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

Claimant has filed a petition for a re-hearing on the grounds that under sub-paragraphs 7% and 8 of section 3 of the Workmen’s Compensation Act he is entitled to an award. In his original brief claimant says that, under the repeated decisions of this court, he fully realizes the facts in this case do not make the State liable for his injury, and basis his right to an award on the principle of justice and equity. He now urges the foregoing paragraphs automatically bring the State under the provisions of the Workmen’s Compensation Act, and entitle him to be compensated by the State for his injury.

The Workmen’s Compensation Act automatically applies to the State only when it is engaged in any of the enterprises or businesses enumerated in section 3 of that Act and therein declared to be extra hazardous. Under the provisions of sub-paragraph 8 nothing contained in the Act “shall be construed to apply to any work, employment or operations done, had or conducted by farmers and others engaged in farming, tillage of the soil, or stock raising, or to those who rent, demise or lease land for any such purposes, or to any one in their employ or to any work done on a farm or country place, no matter what kind of work or service is being done or rendered. ’ ’ Claimant was injured while engaged in baling straw on one of the farms of the Jacksonville State Hospital. In as much as the provisions of the Workmen’s Compensation Act do not apply to one engaged in farming or to any kind of work or service being done on a farm it follows that claimant cannot recover under the provisions of that Act.

The petition for a re-hearing is therefore denied.

On March 28, 1929; upon a second petition for rehearing the following additional opinion was filed:

On September 11, 1928, the opinion denying an award and dismissing the cause was filed. Under Bule 30 of this court claimant filed his petition for a rehearing. That petition was duly considered by the court and the rehearing denied by an order filed October 24, 1928. On February 1, 1929, claimant filed a second petition for a rehearing and for leave to take additional testimony. This petition was not filed for over 3 months after the first petition was denied. Petitions for rehearing must be filed in accordance with the rules of the court. These rules of the court are adopted for the proper expedition of the business of the court and must be complied with. (Wolfe v. State, 5 C. C. 18; Corris v. State, 5 C. C. 76; Lewson v. State, 5 C. C. 80). They have the force of law and are obligatory upon the court itself as well as upon the parties to causes pending before it. The court has no discretion to apply them, or not, according to its convenience. (Lancaster v. Wauhegan & S. W. Ry. Co., 132 Ill 492). Bule 30, which relates to rehearings, provides that such petitions shall be filed within 25 days after the filing of the opinion. The second petition in this case, was not filed for about 100 days after the last opinion was filed. It cannot, therefore, be considered, and is denied.


source: Caselaw Access Project

author: Mr. Justice Thomas

license: Public Domain

text:
    (No. 1289
    Helen Fitch Gould, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1928.

    Helen Fitch Gould, pro se.
    Oscar E. Carlstrom, Attorney General; Frank E. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

The declaration in this case shows that claimant is the only child and sole heir at law of Edward Churchill Fitch, who died intestate March 1, 1926; that, at the time of his death and for many years prior thereto, the said Edward Churchill Fitch was an assistant attorney general of the State of Illinois ; that in the course of his duties as such assistant attorney general it became necessary for him to go to Chicago on February 15, 1928, where he remained until February 18, 1928, and that the expenses incurred by him in making this trip amounted to the sum of Fifty-one Dollars and Twenty-seven Cents. This claim is to reimburse claimant for that amount.

Attached to the declaration are a letter and statement of the Attorney General corroborating the facts as set forth in the declaration and recommending that the claim be allowed. It is, therefore, ordered by the court that the claimant be allowed an award in the sum of Fifty-one Dollars and Twenty-seven Cents.


author: Mr. Justice Leech

text:
    (No. 871
    New Era Construction Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 24, 1928.

    D. A. Hebel, for claimant.
    Oscar E. Carlstrom, Attorney General; S. S. DuHamel, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The declaration filed by claimant alleges that claimant entered into a written contract -with the Department of Public Works and Buildings of the State of Illinois, for the construction of certain grading and excavations and material and other work set out in Contract No. 1403 of Route No. 8, Section 37a, Tazewell county, Illinois, which contract is on file with said Department of Public Works and Buildings, Division of Highways of said State, and copy of which is made part of said declaration; that on or about September, A. D. 1922, claimant commenced work under said contract and undertook to fully and completely carry out and perform all the terms and conditions thereof, as well as certain changes and specifications thereafter from time to time made by the engineers of said Department of Public Works and Buildings, Division of Highways; that because of changes resulting in the increase of the quantity of excavation and other work and material required to be performed by claimant, under said contract, it became physically impossible for claimant to complete said contract within the time contemplated by said contract ; that the character of the excavation necessary on route in question involved a cut through Washington Hill, between the towns of Bast Peoria and Washington, in said State of Illinois, and that said excavation proved to be of a different character than originally contemplated and involved cutting through deep strata of blue clay and hard-pan with pockets of quick sand and numerous springs of water; that this work was of a kind and character for which claimant was not equipped to perform and that claimant thereupon undertook to equip itself and to faithfully carry out all of the requirements and changes from time to time made by said Department of Public Works and Buildings in said contract; that the stockholders of said corporation consisted of one Jerry Conners and his wife, Alice F. Conners, and one share each was held by two other persons; that said Jerry Conners, as principal stockholder was the individual who personally had charge of the work to be performed under said contract and gave the same exclusive personal attention and continued in the performance of said contract until March 5th, 1923, when he was stricken with double pneumonia and died; that on account of changes and the character of the work which had been made and arisen in connection with the contract, the work at the time of the decease of Jerry Connors was far from completed and claimant alleges that because of the quantity of work to be performed, said contract could not be performed within the time contemplated by said department of State, nor by claimant corporation; that there was a large increase in the cost of labor and material, amounting to about 60% over the cost of labor at the time when said contract was entered into; that it was necessary for claimant to borrow money and pay interest on same; and was also obliged to pay a large bonus to sub-contractors in connection with said contract, and also to pay subsequent to the decease of said Jerry Connors the increased cost of labor in connection with the completion of said contract; that claimant received from the Department of Highways, aforesaid, the sum of $62,162.59; that the total cost of the work and materials furnished was the sum of $78,375.05, and that claimant had necessarily expended in connection with the performance of said contract the sum of $16,212.46 and that unless this claim is allowed, same will be sustained by Alice F. Connors, widow of said Jerry Connors, deceased, and bill of particulars attached to said declaration includes claim for increase of cost of labor and materials on added work and material, and on account of said contract extending over and into the years 1923 and 1924, $11,679.43; interest on additional funds required because of the changes and additions made in said contract subsequent to the time when the same was entered into, $2,333.03; bonus paid to sub-contractor required on account of higher cost of construction in 1923 and 1924, $2,200.00.

To this declaration, the Attorney General of the State of Illinois, filed a demurrer, which is sustained, as a matter of law.

After a careful review of all the evidence, we are of the opinion that this claim should not be allowed. After the execution of the contract, a bond covering both sections 37a of said Route 8, and Section 36 thereof, was propérly executed and accepted by the Division of Highways. Mr. Connors through his company immediately after the acceptance of the contract and bond began the work, and before much of the work was finished, death overtook him. At the time of his death Mr. Connors, through the New Era Construction Company, had other contracts for similar work near Blooming-ton, Illinois, known as Sections 9 and 10 on Route 9 and one near Eureka, Illinois, on Route 8.

Upon his death his widow and her bank, the Lake View State Bank of Cook county, Illinois, finding the affairs of Mr. Connors and the New Era Construction Company in a complicated condition undertook to straighten out the affairs, complete the work contracted for on the part of the New Era Construction Company, and settle the estate of said Jerry Connors. The New Era Construction Company was re-organized by electing Richard F. Hickey, who was connected with the Lake View State Bank, as President of the company to take the place of Jerry Connors, deceased. When Mr. Hickey took over the affairs of the corporation, he negotiated with other contractors to get them to complete the work. Mr. Maloney, prior to the death of Mr. Connors, had been foreman for the New Era Construction Company and doing work at Carlock, Bloomington, and one place in Indiana and groceries were bought on one account and furnished to all these work gangs. The work on the contract known as Carlock was sublet and the party that finished the work at Carlock was given a bonus paid by the New Era Construction Company in the amount of $2,200.00 and this bonus of $2,200.00 is charged up as part of the loss on the contract 37-A and asked to be met as a part of the deficit and to be recovered in this claim. The testimony further shows that Morris Canty, a laborer, was paid $205.00 for work that was done before Mr. Connor’s death and the foreman, Mr. Maloney, didn’t know whether Mr. Canty did the work on Washington Hill or not, for which this payment was made. This item of $205.00 is also included in statement and sought to be recovered in this claim. $663.00 for Mike Shanley is included in this claim, whereas the said Mike Shanley never worked on contract 37-A; similarly a charge of $1,033.02 is charged for liability insurance, and claimant has failed to establish what part of that applied to contract designated 37-A and 36. It is the contention of the defendant, and the court believes that this Car-lock bonus, amounting to $2,200.00, interest charges amounting to $2,333.04 and excess wages, amounting to $2,477.27 are all items that under no circumstances could legitimately be included in any alleged loss for contract for sections 27-A and 36.

After Mr. Connor’s death, all the contracts except for 37-A and 36 were sub-let, and the widow and Mr. Hickey, as President of the New Era Construction Company, decided to go ahead and complete the work on this contract and employed Mr. Maloney as foreman to do the work. After starting the work in the hill, known as Washington Hill, Mr. Maloney found that instead of being ordinary clay there was a substance known as “Blue Clay” and that same could not be excavated without the use of dynamite. Mr. Maloney, Mr. Hickey and the Division of Highways took up the subject and the question of extra pay for excavating the blue clay in question was discussed, and it was agreed that both parties should station a man at said hill and keep account of the cost of the excavation of said blue clay and that the State would pay the cost thereof plus 14 per cent of such cost as a profit. This agreement was fully consummated and the New Era Construction Company, upon settlement was paid the sum of $19,904.54 for the work done on Washington Hill, with reference to the blue clay, of this sum $2,601.91 being a profit to the New Era Construction Company, over the actual cost of the excavation.

After the work was finished, a final settlement was made with the New Era Construction Company, and this final statement bears the signature of “New Era Construction Company, by R. F. Hickey, President”, to each of the sheets composing same, designating the approval of same by said company.

It is unfortunate that this loss must be sustained by the widow of Mr. Connors, but were this court to allow this claim, it would establish a dangerous precedent for cases of similar character. We do not doubt that after the making of the contract, there was a raise in the cost of labor and material, but this situation arises in all departments of business, and the court cannot lay down a principle or establish the precedent that will render ineffective future contracts and void future bonds.

The demurrer filed by the Attorney General is sustained, and the case dismissed.


text:
    (No. 1312
    Alexander M. Kinkaid, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 24, 1928.

    Alexander M. Kinkaid, pro se.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This is a claim for refund of franchise tax erroneously paid by the International Boiler Compound Company, of Chicago, Illinois, for the years of 1924, 1925, 1926 and 1927, to the Secretary of State after the expiration of its charter in October, 1923.

It is admitted by the Secretary of State that the charter of the International Boiler Compound Company had expired in October, 1923, and that the franchise fees paid for the years 1924, 1925, 1926 and 1927 in the sum of Ten Dollars for each year, making a total of Forty Dollars, should not have been collected by the office of the Secretary of State.

As it is clear no tax was due, and as it is recommended by the Attorney General that an award be allowed the International Boiler Compound Company in the sum of Forty Dollars, an award for that amount is accordingly allowed.


text:
    (No. 1351
    W. E. Harris, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 24, 1928.

    W. E. Harris, pro se.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

Claimant in this case, in his own behalf, represents, in his declaration, that he is now and was during the month of June, 1927, employed by the State of Illinois, as Deputy Fire Marshal in the Division of Fire Prevention of the Department of Trade and Commerce; that during said month, in pursuance of his official duties and under the direction of the Fire Marshal, was obliged to travel between certain cities, viz: Flora, Altamont, Olney and Robinson, all in the State of Illinois; that his traveling expenses in such official duties amounted to $54.61, and an itemized statement appears attached to said petition; that no appropriation was made to take care of said expenses. A statement filed by the Attorney General of the State of Illinois, suggests that a recommendation made by the State Fire Marshall, that same be allowed, be considered by this court.

We accordingly award claimant in this case the sum of $54.61.


text:
    (No. 1200
    Helen Hartzel Hair, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 24, 1928.

    Anna M. Mooes, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank E. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The claimant in this case alleges, in her declaration filed on May 25th, 1927, that she was injured by reason of having been struck by a motorcycle, driven by a, State Motorcycle Officer, Harold Lenox, on a State road, being Eoute 2, leaving from Amboy to Dixon, Illinois, while said officer was in the performance of his duties, said accident having occurred on June 15th, 1926; that as a result of said accident she was bruised, injured and wounded and her left leg was broken. Claimant asks only her actual damages sustained. The demurrer filed by the Attorney General of the State of Illinois, is sustained as a matter of law.

In the interest of social justice and the public welfare, we believe that an award should be made in this case, and we accordingly award the claimant the sum of Four Hundred Sixty-nine Dollars and Fifty Cents ($469.50).


author: Mr. Chief Justice Clarity

text:
    (No. 1215
    Geo. P. Ide & Co., Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 24, 1928.

    Moses, Kennedy, Stein & Bacheaos, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the •court:

This is a claim filed for the purpose of recovering certain sums alleged to be wrongfully collected by the Secretary of State on account of excess franchise taxes and initial fees paid by the claimant, a New York Corporation, prior to the year 1923. The Attorney General comes and defends, first, on the ground that the fees or taxes were paid without due protest or objection, and was as a matter of fact a voluntary payment. The court is of the opinion that the Attorney General presents sound reasoning on this point and the court believes that an analysis of this case would show a reasonable and sufficient defense. However, the court is of the-opinion that this case should be considered largely through the'reasoning of the Court of Claims in the case of the Moline Plow Company v. State of Illinois, reported in Vol. 5, Illinois Court of Claims Reports, at pages 277 and 278. In that case this court held that claimants in this line of cases had an adequate remedy in courts of general jurisdiction and that this court did not presume to review the acts or conduct of the Secretary of State. This position is understood to be one of great moment and it certainly can be considered reasonable; that whenever a controversy arises wherein the head of a great department like that of the Secretary of the State of Illinois is involved, and wherein such controversy is permitted to be considered in the courts created by the Constitution of the State, this court or any other commission or department of the State should not take jurisdiction.

There is an element in this case that is urged by the claimant as a reason that should be considered by the court on a different theory other than that which is set forth in the Moline Plow Company case above cited and that is a provision in Section 2a of an Act in relation to the payment of public money in force as amended in 1921, and at the time of the payment of the taxes herein considered. The statute referred to is herein set forth in full, and is taken from Smith’s Illinois Revised Statutes of 1921, Chapter 102, paragraph 13, and is as follows:

“13. Moneys under protest deposited with the State Treasurer. 2a. It shall be the duty of every officer, board, commission, commissioner, department, institution, arm or agency brought within the provisions of this Act by section 1 hereof to deposit with the State Treasurer any money received for or on behalf of the State under protest, together with a copy of the statement of protest, and the State Treasurer shall be ex-officio treasurer of such funds which shall not become part of the funds of the State of Illinois except as hereinafter provided. The State Treasurer shall pay such funds to the person or persons entitled to the same or into the State Treasury upon order of the Officer or his successor, having received such funds under protest. If no such order is received by the State Treasurer he shall at the expiration of two years from the time of the receipt of said funds turn the same into the proper fund into the State Treasury. Such payment into the State Treasury shall not limit in any manner the right of any person entitled to such funds to present their claim to the Court of Claims nor prevent the General Assembly from appropriating money to pay such claims. All such money shall be received by the State Treasurer and disbursed by him upon order of the Auditor of Public Accounts and the Auditor of Public Accounts shall keep an account of all such moneys, received, disbursed, and turned into the State Treasury as herein provided. (Added by Act filed July 13, 1921.)”

The above provision of the statute is cited foi the purpose of considering* the contention of the Attorney General in that proper protest or objection was not made as above provided, which contention is considered very important as against the merits of this claim. However, the main reason for citing the above provision of the statute in force at the time of payment of the taxes in question, is to consider the force and effect of that part of the above statute regarding the presenting of a claim to the Court of Claims or to the General Assembly. It is the wish of this court to consider • that part of the statute in the light of Article 3, Constitution of the State of Illinois, 1870, which is hereinafter set forth ■as follows:

“Distribution of Powers. Legislative — Executive—Judicial. The powers of the Government of this State are divided into three distinct departments — ■ the legislative, executive and judicial; and no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed ■or permitted.”

In view of the fact that the claimants had a right to an adequate remedy in the courts created by the Constitution ■of the State, the very nature of any proceedings, whether it be in courts of general jurisdiction or in this court would be to review the conduct of the Secretary of State and his constitutional rights. Also that the question to be considered in this court or in any other court, certainly must be a question of law and one which most certainly ought to be considered by the Judicial Department of the State of Illinois. Therefore, this court, while reluctant about passing on the rights of the three great departments of the State, cannot be unmindful of the constitutional rights of the various departments. It must be admitted that whatever powers this court possesses comes from the Legislature and that this court has no greater power than the department- that created it. And can it be assumed that the Legislature should become a court to determine or construe the decisions of the Supreme Court of the State bearing upon the rights of a claimant which is almost wholly of a legal nature, or would the Legislature desire to define or pass judgment upon the definition or construction of a statute from a constitutional viewpoint?

It is, therefore, the opinion of this court in considering the statute above cited, that the Legislature had in mind in passing the Act, the theory and object that a claimant would not be barred from redress in the Court of Claims after he followed the provision of the statute in question in the matter of protest and had followed all his other legal remedies provided by law and in the courts of general jurisdiction. It would appear proper to this court that if the courts of general jurisdiction would pass final judgment in behalf of a claimant for the payment of money wrongfully or improperly collected by the Secretary of State, that claimant would then have a right to present his claim in the Court of Claims to recover the amount found due him by the judgment or decree of a court of last resort of the State of Illinois.

For the reasons above set-forth, .it is recommended by this court that said claim be disallowed.


text:
    (No. 1217
    The Lunkenheimer Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 24, 1928.

    Graham & Graham, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

The claimant, an Ohio corporation, seeks to recover on account of franchise taxes and initial, fees alleged to be wrongfully collected by the Secretary of State.

This court is of the opinion that claimant had an adequate remedy at law in courts of general jurisdiction as expressed by this court in the opinion filed in the case of the Moline Plow Company v. State of Illinois, and in the case of Geo. P. Ide & Co., Inc., v. State of Illinois, No. 1215.,

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


text:
    (No. 1224
    The Eagle-Picher Lead Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 24, 1928.

    W. F. Heineman, for claimant.
    Oscar E. Caelstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

The claimant, an Ohio corporation, seeks to recover on account of franchise taxes and initial fees alleged to be wrongfully collected by the Secretary of State.

This court is of the opinion that claimant had an adequate remedy at law in courts of general jurisdiction as expressed by this court in the opinion filed in the case of the Moline Plow Company v. The State of Illinois, and in the case of Geo. P. Ide & Co., Inc., v. The State of Illinois.

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


text:
    (No. 1254
    L. H. Dodson, Administrator of the Estate of Elton Dodson, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 24, 1928.

    Benj. F. Cassiday, for claimant.
    Oscar E. Caelstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The declaration filed in this cause on November 7th, 1927, alleges that on June 6th, A. D. 1927, Elton Dodson was engaged, through the Department of Public Works and Buildings, Division of Highways, in the maintenance of certain durable hard surfaced roads within and for the State of Illinois; that it was necessary for said defendant, in the maintenance of said hard surfaced roads to mark the center line of same with asphalt or like material, and was at that time preparing to so mark the hard surfaced roads, at or near Kewanee in Henry county, Illinois; that in such preparation, it was necessary to prepare a fire in a furnace of an asphalt or tar machine before applying it to the center line of said roads, and that it was dangerous and unsafe for a person to start the fire in said furnace by means of oil or kerosene; that defendant ordered said Elton Dodson to start said fire in said furnace of said asphalt or tar machine, by means of oil or kerosene, and that while so acting with all due care and caution for his own safety, did then and there attempt to start said fire in said furnace of said asphalt or tar machine used in the maintenance of said durable hard surfaced roads, and by reason of a combustion or explosion in said furnace, said Elton Dodson was horribly burned about his person, from which burns he died at the St. Francis Hospital, Kewanee, Illinois, at 6:40 A. M., June 6th, 1927; that he left a mother, father, and seven brothers and sisters him surviving, and claimant, as administrator of the estate of Elton Dodson, deceased, asks damages in the sum of $5,000.00.

In the testimony introduced, there is no evidence of dependency, but there are medical, hospital, funeral and transportation expenses, which are proved in a total sum of Two Hundred Ninety-four and 75/100 Dollars' ($294.75), and we accordingly award claimant in this suit the sum of $294.75.


text:
    Tony Blasi, 1262; Hector Durante, 1263; Martin Cannon, 1264; Thomas Bouchier, 1265; Louis J. Strelitsky, 1266; Fred L. Huchberger, 1267; William L. Rossell, 1268; Frank E. Arkuszewski, 1269, Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 24, 1928.

    Harry Smitz, for claimants.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This is a claim filed on behalf of the above entitled claimants for salary provided for by statute, for the positions which they held, but for which no appropriation was made by the Legislature. This court made an award recommending- to the Legislature that they appropriate to the same claimants in other claims for a different period of time, the difference in the amount of the salary which was appropriated by the Legislature and the amount which was provided by statute to be paid them. The Legislature appropriated for award and they have received it. They now ask the court to make awards for the period from January 1st, 1927, to July 1, 1927. Upon receipt of these claims that were forwarded to Hon. George B. Arnold, Director of Department of Labor, for report as to correctness of the facts therein set forth and advise as to what disposition to make of them, he reported 'and advised by letter, copy of which is with said files and in which letter said Director of Department of Labor recommended that awards be made in each of these cases as listed for salaries.

We accordingly award to Tony Blasi the sum of $500.00; to Hector Durante the sum of $500.00; to Martin Camion the sum of $500.00; to Thomas Bouchier the sum of $400.00; to Louis J. Strelitsky, the sum of $400.00; to Fred L. Huchberger, the sum of $200.00; to William M. Rossell, the sum of $150.00; to Frank E. Arkuszewski, the sum of $50.00.


author: Mr. Chief Justice. Clarity

text:
    (No. 1270
    American Forge Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 24, 1928.

      Rehearing denied February 13, 1929.

    Follansbee, Shorey & S chuff, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice. Clarity

delivered the opinion of the court:

The claimant, a Delaware corporation, seeks to recover on account of franchise taxes and initial fees alleged to be wrongfully collected by the Secretary of State.

This court is of the opinion that claimant had an adequate remedy at law in courts of general jurisdiction's expressed by this court in the opinion filed in the case of the Moline Plow Company v. The State of Illinois and in the case of Geo. P. Ide & Co., Inc., v. The State of Illinois.

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

On February 13,1929, upon petition for rehearing the following additional opinion was filed:

This is a case before this court on rehearing. The court is of the opinion that the records fail to disclose any reason for a change in the opinion heretofore filed in said claim.

It is therefore recommended by this court that petition for rehearing be denied.


text:
    (No. 1271
    Pratt & Lambert, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 24, 1928.

      Rehearing denied February 13, 1929.

    Follansbee, Shorey & Schupp, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

The claimant, a New York Corporation, seeks to recover on account of franchise taxes and initial fees alleged to be wrongfully collected by the Secretary of State.

This court is of the opinion that claimant had an adequate remedy at law in courts of general jurisdiction as expressed by this court in the opinion filed in the case of The Moline Plow Company v. The State of Illinois, and in the case of Geo. P. Ide & Co., Inc., v. The State of Illinois.

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

On February 13, 1929, upon petition for rehearing the following additional opinion was filed:

This is a case before this court on rehearing. The court is of the opinion that the records fail to disclose any reason for a change in the opinion heretofore filed in said claim.

It is therefore recommended by this court that petition for rehearing be denied.


text:
    (No. 1281
    G. F. Braun, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 24, 1928.

    Gr. F. Braun, pro se.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is for damages to the automobile of claimant alleged to have been caused by the negligence of the driver of a truck owned by the State and then being used in maintenance work on State Highway No. 36. The declaration is drawn on the theory that the State is liable for injuries caused by the negligent conduct of its employees. The whole case of claimant is presented on the assumption that the same principles of law apply to the State as are applicable to individuals and corporations. In this assumption claimant is in error. Individuals and corporations may be liable for damages caused by the negligence of their agents or servants. The State, however, is never liable for damages caused by the negligence of its servants, agents or officers unless there is a statute expressly making it so liable. This rule has been so frequently announced that it ought to be familiar to all members of the legal profession. In Kinnare v. City of Chicago, 171 Ill. 332, at page 335, the Supreme Court of the State announced the rule in the following language: ‘ ‘ The State acts in its sovereign capacity, and does not submit its action to the judgment of courts and is not liable for the torts or negligence of its agents, and a corporation created by the State as a mere agency for the more efficient exercise of governmental functions is likewise exempted from the obligation to respond in damages, as master, for negligent acts of its servants to the same extent as is the State itself, unless such liability is expressly provided by the statute creating such agency.” The maintenance of a state highway is a governmental function which the State exercises through its officers and employees. If, in the discharge of his duties, an employee is negligent and such negligence causes injury or damage to the person or property of another the negligence is the act of the employee and cannot be regarded as the act of the State. (Cooney v. Town of Hartland, 95 Ill. 516.) In discussing this question in Jorgensen v. State, 2 Ct. Cl. 134, this court said: “This proposition of law, so well established, has been consistently followed by this court in the adjudication of all claims that have ever come before it, and applies with equal force to the cause now on hearing. ’ ’ Many decisions of this court announcing the same rule have been made since that time. The law being as it is, it necessarily follows that claimant is not entitled to an award against the State. His right of action is against the driver of the truck.

The claim is therefore denied and the cause dismissed.


text:
    (No. 1284
    John Farmer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 24, 1928.

    White & Quindby, for claimant.
    Osoab E. Carlstbom, Attorney General; Frank B. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This is a claim to recover damages in the sum of $150.00, alleged to have been sustained by claimant, John Farmer, when his Ford Coupe, collided with a car driven by Ed Young, head mechanic of the State Highway Department, who works at the Highway Department garage in Carbondale, the accident having occurred on January 9th, 1928, at 6:30 o’clock A. M., while claimant was driving on Route No. 37 between Marion and Johnston City. The claim is for a small sum, and the State, through the Attorney General, has submitted a statement to the effect that no evidence was taken on behalf of the claimant for the reason that the Highway Department and the office of the Attorney General are of the opinion that a $75.00 settlement of this suit, taking into consideration the. contingencies of the case, would be better than to attempt to fight it.

Under the circumstances in the case, we feel that an award of $100.00 to claimant is justifiable and equitable, and we do accordingly award to claimant the sum of One Hundred Dollars.


text:
    (No. 1285
    John R. Logan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 24, 1928.

    Ralph R. Sheridan, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court :

This is a claim filed on behalf of the claimant, in order that the claimant might be reimbursed for cattle killed because they reacted to a tuberculosis test made by the State of Illinois. .

The claim was forwarded to the Director of the Department of Agriculture, for report and he recommended that a claim of $73.86 be allowed.

On the recommendation of the Director of Agriculture an award in the sum of $73.86 is allowed.


text:
    (No. 1297
    E. M. Wade, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 24, 1928.

    Van Sant & Bbsse, for claimant.
    Oscar E. Cablstbom, Attorney General; Fbank B. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The Declaration filed in this case, alleges that on March 4th, 1927, claimant had his herd of dairy cattle, consisting of nine head tested for tuberculosis by Dr. B. L. Lake, Chief Veterinarian of the Department of Agriculture, and that one grade Holstein cow, appraised at $85.00 reacted to the test and was later placed under quarantine and shipped to the Union Stock Yards, Chicago, for slaughter; that he received from the Commission House in Chicago for said Holstein reactor the sum of $45.73; leaving a difference of $39.30, of which the Federal Government should pay $13.10 and the State of Illinois $13.10. A statement made by the Attorney General’s office, avers that the claim was forwarded to Hon. S. J. Stanard, Director of Agriculture, and by him forwarded to Hon. D. W. Robinson, Superintendent of Animal Industry, by said Director of Agriculture and their letter attached to said statement verifies the correctness of the claim under consideration.

We therefore award claimant in this case the sum of $13.10.


text:
    (No. 1197
    John S. Hopf, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1928.

    John S. Hope, pro se.
    Oscar E. Carlstrom, Attorney General; Frank E. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

The declaration in this case states: ‘ ‘ This claim is based on account of wild pheasants, protected under Illinois State Game Laws, scratching out and eating seed corn which necessitated four plantings and failure of crop for year 1925 and a loss of three hundred and sixteen dollars and seventy cents.” The Attorney General has filed a general demurrer to the declaration, but no briefs have been filed by either claimant or defendant.

Apparently claimant bases his right to an award upon the theory the State is liable for damages caused by wild birds and animals that are protected by the State- game laws.

The title to wild game and birds is in the State, and is held by it for the benefit of all the people of the State. Schulte v. Warren, 218 Ill. 108. The protection and preservation of wild game is a very common police regulation in all civilized countries and is justified on many grounds, one of which is for the purposes of food. American Express Co. v. The People, 133 Ill. 649. The protection of the pheasants in question being a proper exercise of its police powers by the State, claimant is not entitled to any compensation for the damages, if any, which he may have suffered consequent thereof.

The demurrer is sustained and the case dismissed:


text:
    (No. 1220
    Board of School Inspectors of the City of Peoria, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1928.

    Todd, Morgan, Pendarvis & Arber, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank E. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This claim is filed by the Board of School Inspectors of the City of Peoria, Illinois, setting forth that on June 30th, 1925, in the City of Peoria and County of Peoria in the State of Illinois, that the State of Illinois was indebted to the plaintiff in the sum of Seven Hundred Seventy Dollars ($770.00) for money paid out and expended by the plaintiff for the use of the defendant.

It appears from the declaration that the plaintiff pursuant to “An Act to enable school directors and boards of education to establish and maintain classes and schools for delinquent children committed by courts of competent jurisdiction and providing for the payment from the State Treasury of the excess cost of maintaining and operating said classes and schools over the cost of maintaining and operating elementary schools for normal children,” approved June 2,1911, in force July 1, 1911; did expend the sum of Seven Hundred Seventy Dollars ($770.00).

The Attorney General filed a statement of facts and recommended that the sum of Seven Hundred Seventy Dollars ($770.00) be allowed.

The court, therefore, awards the plaintiff the sum of Seven Hundred Seventy Dollars ($770.00).


text:
    (No. 1294
    Felix A. Wallace, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1928.

    W. A. Leopold, for claimant.
    Oscar E. Carlstbom, Attorney General; Frank E. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court;

This is an action to recover inheritance taxes over-paid by plaintiff to the State of Illinois in the amount of $1,086.95. The suit was begun by said plaintiff, Felix A. Wallace by verified declaration and filed in this Honorable Court April 12,1928. The defendant, State of Illinois, lias filed no answer, plea or other pleading of which. plaintiff .has had notice. Plaintiff duly appealed to the County Court of Cook County from the order of the county judge of said county fixing said tax at $7,171.38. Plaintiff’s verified declaration shows that plaintiff’s claim has not been presentéd to an official, individual or corporation or to any tribunal other than to this Honorable Court and that plaintiff has not received any part of the same.

The bill of particulars, plaintiff’s, exhibit A, sets forth that the amount of said inheritance tax paid was the amount of the original assessment by the said county judge, less the discount of 5% allowed by law, namely, $6,812.81 and that the County Court of Cook County reduced said tax to $6,027.22 and that this latter amount less 5% discount is provided by law, was and is now the full amount of tax the State of Illinois is entitled to, namely, $5,725.86, an overpayment to the State of Illinois of $1,086.95; all of which facts are supported by the evidence in the form of exhibits B, C, D, and E, duly authenticated copies of the public records,- respectively, of letters testamentary, order fixing the tax, receipt and acknowledgment of the payment thereof, and final order and judgment of the County Court of Cook County reducing said tax.

The Attorney General has filed a statement with the recommendation that the claim be allowed. We, therefore, allow the claimant the sum of $1,086.95.


author: Mr. Justicb Leech

text:
    (No. 1296
    E. P. Ellwood and John Nelson, Co-Partners, Doing Business Under the Firm Name and Style of Ellwood and Nelson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1928.

    Poust, Fisk & Moudry, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank E. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justicb Leech

delivered the opinion of the court:

The declaration in this case alleges that E. P. Ellwood and John Nelson, co-partners are engaged in the dairy business in the township of DeKalb, County of DeKalb, and State of Illinois; that they were the owners of one Holstein bull registered as follows: Co. 46-500, St. 1401, 500688 Holstein Barkrest Dione Fobes, which re-acted to tuberculosis test and was thereafter destroyed in accordance with the law on the 23rd day of March, 1927.

The claimant further alleged that this bull was appraised and that they, the claimants, received the sum of Forty-seven and 45/100 Dollars ($47.45) as salvage for said bull, leaving a deficiency of One Hundred Fifty-two and 55/100 Dollars ($152.55) of which the United States is required to pay Fifty Dollars ($50.00) and the State of Illinois Fifty Dollars ($50.00).

The Attorney General files a statement setting forth that this claim was forwarded to the Department of Agriculture for report and advice and the Division of Animal Industry of the Department of Agriculture reported on this claim under date of August 13, 1928, by letter, copy of which is attached and marked exhibit A and made a part of this statement. The Department of Agriculture recommends that the claim be paid. The claimants are, therefore, awarded the sum of Fifty Dollars ($50.00), the full amount of their claim.


text:
    (No. 1316
    Robert A. Norton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1928.

    ' Emil J. Benson and John M. Peffebs, for claimant.
    Oscar E. Carlsteom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This is a claim filed for the purpose of recovering compensation for the personal injury sustained in line of duty while a member of Battery B, 124th Field Artillery, Illinois National Guard.

In the statement filed by the Attorney General, it is admitted that the claimant in his statement, brief and argument properly states the facts and circumstances surrounding the cause of injury and that the amount of the award should be based on the basis of the Workmen’s Compensation Act.

Therefore, it is the opinion of the court, that the claimant be awarded the sum of Two Thousand, Two Hundred Fifty-nine Dollars and Fifty Cents ($2,259.50).


text:
    (No. 1319
    Douglas L. McKenney, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1928.

    Benjamin S. DeBoice, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

On the 4th day of October, 1921, claimant was appointed, assistant commerce commissioner and served in that capacity until July 29th, 1925, when he was reappointed, his appointments being made under the provisions of the Act concerning public utilities. Section Five of that Act fixes the salary of the assistant commerce commissioners at $5,000.00 per annum. The Fifty-third General Assembly, in making the-appropriations for the ordinary and contingent expenses of the State government, failed to appropriate sufficient funds-to pay the assistant commerce commissioners in full and claimant was paid only $4,000.00 a year for the two years following July 1st, 1923, leaving $2,000.00 due him for services rendered during those two years, and he has filed his claim for the $2,000.00 due him. It is conceded by the attorney general that claimant performed the services of an assistant commerce commissioner during those two years and that he is entitled to recover from the State the unpaid balance of his salary.

It is therefore ordered that claimant be awarded the sum of Two Thousand Dollars ($2,000.00).


text:
    (No. 1353
    Adelbert D. Ryan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1928.

    Leó P. Baird, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

The claimant on the 26th day of May, 1927, was an employee of the Division of Highways of the Department of Public Works and Buildings of the State of Illinois as a laborer. And while in the course of such employment moving mud, dirt and rubbish from the concrete roadway on Boute 41 near the City of Galesburg, Illinois, an automobile driven in a southerly direction over said highway struck and ran over claimant. It appears from the evidence that claimant will never have full use of one of his legs and that he is permanently disabled from doing physical labor to the extent of fifty per cent.

The court is of the opinion from all the evidence and facts disclosed in the case which is admitted by the Attorney 'General, that the claimant should and ought to recover, using the Illinois Workmen’s Compensation Act as a measure, the sum of Thirty-one Hundred Seventy-three 98/100 ($3,173.98) Dollars.

¡. It is therefore recommended that said claimant be allowed the said sum of Thirty-one Hundred and Seventy-three-98/100 ($3,173.98) Dollars.


text:
    (No. 1356
    Frank G. Anton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1298.

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

delivered the opinion of the court:

Claimant bases his right to an award upon the provisions of the Act of May 3, 1921, providing for the payment of compensation to soldiers and sailors who served in the war with Germany. The Attorney General has- filed a general demurrer to claimant’s declaration, and claimant has filed a motion to overrule the demurrer and for judgment.

The declaration and the exhibits attached thereto and made a part thereof show that claimant made application to the Illinois Service Recognition Board for compensation under .the provisions of that Act, and that his claim was disapproved by that Board July 13, 1925. The declaration also shows that claimant made application for compensation to the Department of Adjusted Compensation of the State of Ohio, and- that' his .claim was disapproved by -it also. He now contends that the Illinois Service Recognition Board erroneously disapproved his claim and asks this court to make an award in- his favor for #300.00, the amount he- alleges is due him under the provisions of the Act.

The Service Recognition Board consisted of the Governor, State Treasurer and Adjutant General. By Section 5 of the Act it: is provided, “This board shall have complete charge and control of the general scheme of payments authorized in this Act and may adopt general rules for the making of such payments, the ascertainment and selection of proper beneficiaries and the amount to which such beneficiaries are entitled, and for procedure. The Service Recognition Board shall adopt general rules for determining the question of whether an applicant was a resident of this State at the time he entered the service; and shall prescribe by rule, the nature of the proof to be submitted to establish the fact of residence. ’ ’

It is apparent from the provisions of this section that the legislature intended to give the Service Recognition Board full and final jurisdiction of all applications for compensation under that Act. That being true, no court has jurisdiction to review its actions, or to allow' claims for compensation which it has passed upon and denied. But it is said by claimant that “this court has power to recognize those claims which the State of Illinois should, ‘in equity and good conscience discharge and pay.’ ” That is true as to claims against the State that have not been passed upon by some other agency of the State. But this court has no appellate jurisdiction. And the Service Recognition Board having-heard the evidence of claimant in support of his right to compensation and having found against him its finding is a final adjudication of the matter.

It is urged by claimant that his claim was disapproved by the Service Recognition Board for reasons over which he had no control — for no fault of his. If that be true, he had an opportunity to have the whole matter gone into for the purpose of determining whether or not he was really entitled to the compensation claimed. On November 15, 1927, he was notified that the existence of the Service Recognition Board terminated November 9, 1927. The Legislature recognized that there might be claimants whose claims had been disallowed through no fault of theirs, and passed the Act of July 7, 1927. This Act provides that any person entitled to compensation under the Act of May 3, 1921, ‘ ‘ and who in good faith applied for but, through no fault of his own, did not receive such compensation * * * * shall be paid the same compensation as that provided for by said cited Act, if such person makes application therefor within one year from the time this Act takes effect. Application for delayed compensation under the provisions of this Act shall be made to the Adjutant General of Illinois.” Section 2 of this Act makes it the duty of the Adjutant General “to receive and pass upon the merits of all applications for compensation made within the provisions of this Act”. Under the provisions of this law claimant had one year after July 7, 1927, to file his application with the Adjutant General. By doing so he could have had his claim passed upon by an agency of the State duly authorized by law to do so. His failure to comply Avith the provisions of the statute does not warrant this court in assuming jurisdiction of his case.

The demurrer is sustained and the case dismissed.


text:
    (No. 1361
    Board of Education School District No. 42, Crawford County, Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1928.

    Parker, Cox & Eagleton, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The Board of Education of School District No. 42, CraAtrford county, Illinois, filed its declaration shoAving that the State of Illinois is indebted to said school district in the sum of $184.30, and as a basis of said claim, the said claimant alleges that for the school year ending in June, 1926, had the duty of educating two crippled children, employed a special teacher, furnished conveyance and did all things necessary to the best of its ability to provide an education for said children; that through a misunderstanding the report for the collection of the amount due the district under the Iuav for the payment of the excess cost of the expense of educating such crippled children was not filed with the Superintendent of Public Instruction or the Department of Public Welfare until after the appropriation made for the purpose of paying for such education had elapsed.

It further appears from the declaration that mistakes were made in the report sent to the State Superintendent of Schools and by the time these mistakes were corrected, the time had lapsed for the filing of this claim;

That no part of this claim has been paid and that no other person has any interest whatever in this claim.

An itemized statement of the amount due is filed with the declaration and made a part thereof.

The Attorney General filed a demurrer, which as a matter of law is sustained. The Attorney General also filed a statement in which he recommends that the amount of $184.30 be allowed. We", therefore, allow this claim in the sum of $184.30.


text:
    (No. 1374
    R. E. Bridges, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1928.

    Gullett and Gullett, for claimant.
    Oscab E. Oablstbom, Attorney General; Frank E. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

E. E. Bridges presents a claim against the State of Illinois for salary as business manager for the Normal School Board under the Department of Begistration and Education of the State of Illinois and for necessary expenses while holding said position. It appears that the claimant was to receive Five Hundred Dollars ($500.00) a month and in addition thereto necessary traveling expenses.

The claimant herein accepted the appointment of said position and performed all the duties for a period of five months, at which time it was found that the Normal School Board had not properly proceeded in making said appointment, although if they had properly proceeded they could have created the position of business manager and the claimant would have received his salary as a matter of course. They were therefore unable to pay the claimant.

The Attorney General of the State of Illinois has filed a statement in this cause, stating that the facts as set forth in the statement of claimant were correct. Therefore, it is recommended that claimant be allowed the sum of Twenty-eight Hundred Dollars ($2,800.00).


text:
    (No. 1376
    Armour and Company of Delaware, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1928.

    Harry B. Bogg, Jr., for claimant.
    Oscar E. Carlstrom, Attorney General; Frank It. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

A declaration filed in this case shows that Armour and Company of Delaware, a Delaware corporation, sold and delivered to the Department of Public Welfare of the State of Illinois, one barrel of Green Hospital Soap, weighing net, 434 lbs., at a price of per lb., or a total of $37.10; that the1 said shipment was delivered on the same day as ordered, i. e., the 14th day of May, 1925, and was in accordance with order No. 84276-A of said State Department.

Claimant further states that the amount of $37.10 has never been received by it or its agents.

The Attorney General of the State of Illinois files a statement with letter attached from Hon. B. W. Ide, Director of the Department of Public Welfare in which the statement is made:

“Our storekeeper reports the receipt of merchandise, described in claim submitted by the above company.
This account was not taken care of, inasmuch as the contractor failed to present itemized invoices in triplicate, during the period specified by appropriation governing same.”

There appears to be no question that this is a just claim and that the amount has never been paid to claimant.

We, therefore, recommend that an award be made to claimant in the sum of $37.10.


author: Per Curiam:

text:
    (No. 1022
    Horace K. Taylor, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1929.

    John M. Peffers, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank B. Eagle-ton, Assistant Attorney General, for respondent.
   Per Curiam:

This case coming on to be heard upon oral motion of claimant that the above entitled cause be dismissed and it appearing that the cause should be dismissed,

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


text:
    (No. 1023
    Maxine Browning, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1929.

    William E. King, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank B. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

The claimant herein is the widow of Osceola A. Browning, deceased, who was killed in a trench mortar explosion at Camp Grant, Illinois, on the 24th day of August, A. D. 1925.

The husband of the claimant, was, in the opinion of the court, acting in line of duty and it would appear that it was a patriotic duty and it is the opinion of the court that a substantial allowance should be made in view of the fact that the husband of claimant was killed in line of duty and was the support of claimant as admitted.

Therefore, we recommend that the claimant be allowed the sum of Five Thousand Dollars ($5,000.00). .


text:
    (No. 1071
    Samuel G. Harris, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1929.

    Charles J. Jenkins, for claimant.
    Oscar E. Carlstbom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This is a claim filed by Samuel G. Harris, plaintiff, seting forth that on the 24th day of August, A. D. 1925, the defendant was possessed of a certain trench gun and shell; and that on said day or prior thereto the said State of Illinois by its duly authorized agent had caused said trench gun and shell to be sent to Howitzer Company of the Eighth Regiment Illinois National Guard then holding practice at Camp Grant, Rockford, Illinois, for and in order that said company might use the said trench gun and shell for practice shooting.

That the plaintiff was then and there a regularly enlisted soldier in said company of the rank of first lieutenant and was in the actual discharge of his duties as such and was then and there exercising all due care and caution for his own safety and for the safety of the members of his company and * of the other soldiers and the spectators then and there upon the field.

That the defendant by its agent negligently sent said trench gun to the plaintiff’s company for nse as a practice gun and same being then and there defective and that by reason of said negligence and said defective gnn when a shell was placed therein by the soldiers then and there under the command of Captain Osceola Browning said shell did then and there .explode in said trench gun and that steel parts of said trench gun and -shell did then and there strike the plaintiff with great force and violence and did then and there knock the plaintiff down to and upon the ground there and did grievously hurt, bruise and wound the plaintiff and inflicted divers wounds upon the plaintiff’s arms and body; that plaintiff still has two pieces of shrapnel lodged in his body, two pieces of shrapnel lodged in his right arm and one piece lodged in his left arm, and by reason of said bruising, hurting and wounding of the plaintiff,, the plaintiff then and there became lame, sick, sore and disordered and so continued for a long time.

That the plaintiff while not on actual duty as a lieutenant in said Eighth Regiment Illinois National Guard is employed as a clerk in the United States Post Office and earns therefrom a salary of One Hundred Seventy-five Dollars ($175.00) per month; that during all of said time to-wit from thence hitherto was rendered totally incapable of following his occupation and of transacting his business by him during that time.to be done; and also thereby'the'plaintiff during the time since said explosion aforesaid to the date hereof was rendered and is totally incapable of following his occupation and of transacting his business by him during that- time to be done and also thereby the plaintiff became and wa's sick, sore, and disordered as aforesaid; and that the plaintiff further shows-that he has always been a good soldier with a clean record and has been a member of the Eighth Regiment National Guard seven years. l

■ The Attorney General filed a demurrer to the declaration which as a matter of law is sustained.

The Attorney General also filed a statement as follows:

“The claimant.in his statement, brief and argument makes a correct statement of the. facts and the. law and properly applies the same in his argument.

“I, therefore, submit this claim to the court for such disposition that they care to make. If the court makes an allowance in this claim in accordance with the allowances made in other claims involved in the same fact, this claimant is entitled to $3,750.00.”

The court, therefore, awards the claimant the sum of $3,-750.00.


text:
    (No. 1199
    Frank A. Schoenholz, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1929.

    Henry 0. Warner, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim to recover damages by reason of construction of State Highway Number 2, .between Dixon, Illinois, and the village of Grand Detour, Illinois.

Previous to the construction of this road, there was a slope of the entire distance, down to the old road, but in the reconstruction of the new highway at the increased level, a depression four feet in depth was caused, which prevented the use of the land by claimant.

It appears from all of the evidence that the claimant was damaged and it is therefore recommended that the claimant be allowed the sum of $500.00.


text:
    (No. 1279
    Carroll D. Schnepp, an individual, doing business as Carroll D. Schnepp Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1929.

    Penick, Adair & Penick, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The claimant represents that on the 6th day of October, 1927, he was the owner of a Chrysler Coupe, Model Sixty, purchased new April 9th, 1927; that on October 6th, 1927, the claimant was driving the said Chrysler Coupe, bearing an Illinois automobile license for the year 1927 numbered 1-004-054, from the City of Pittsfield, Illinois, to the City of Barry, Illinois, in Pike County.

Claimant further states that he was driving and operating the said automobile upon the State hard surfaced road, Route number Thirty-six approaching the City of Barry, Illinois, about three miles therefrom, that while so driving on the concrete slab of said road the claimant began the ascent of a grade or incline and when he neared the top of the ascent the grade or incline a machine or device commonly known as a traffic line marker, which was being used for the purpose Of marking a black line in the center of the concrete slab on said highway and said Traffic Line Marker was in the rear of and connected to a motor vehicle belonging* to the State of Illinois.

Claimant further represents that as he proceeded, with due care and caution, having proper regard for his own safety and for the safety of others, and when about four hundred feet from said Traffic Line Marker, this claimant saw several men motioning him to stop his automobile.

The claimant further represents that he did stop and did drive his automobile as far off the concrete slab as the shoulder at the right hand side of said concrete slab would permit.

The claimant further represents that the Traffic Line Marker by some means unknown had become disconnected from said automobile truck and under its own weight and pull of gravity began to descend the grade or incline gaining speed as it approached the automobile' occupied by this claimant.

The claimant further represents that said Traffic Line Marker was travelling "at a great rate of speed and it swerved into, struck and collided with the claimant’s automobile, damaging claimant’s automobile in the sum of Five Hundred Ninety-one and 40/100 ($591.40) Dollars.

The Attorney General filed a demurrer which as a matter of law is sustained.

The Attorney General also filed a statement and attached thereto is a letter signed by Frank T. Sheets, Chief High-way Engineer, which is as follows:

“Court of Claims December 8, 1928.
Hon. Oscar E. Carlstrom,
■Attorney General Supreme Court Building Springfield, Illinois My dear Mr. Carlstrom:
Answering your communication of November 20th, with reference to the above mentioned case, we have examined the report made by the party in charge of the State truck and marker at the time the accident occurred, and from the report it appears that the accident was unavoidable.
Therefore, we feel that Mr. Schnepp is entitled to reimbursement to the extent of the actual amount of money expended on the repairs to his car, which as we understand from your letter amounts to $191.40.
Very truly yours,
Director.
(Signed) Frank T. Sheets,
Chief Highway Engineer:

The Attorney General recommends that the court allow the claimant the sum of One Hundred Ninety-one and 40/100 ($391.40) Dollars.

Acting in accordance with the letter of the Chief Highway Engineer and the recommendation of the Attorney General, the court allows the claimant the sum of One Hundred Ninety-one and 40/100 ($191.40) Dollars as full damages in this case.


text:
    (No. 1298
    Charles Harness, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1929.

    Dean Gf. Curry, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank B. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

A declaration filed in this case shows that the State of Illinois had maintained and operated in the City of Lincoln, County of Logan, and State of Illinois, an institution for the treatment and care of feeble minded persons, that said institution was under the control of the Department of Public Welfare of the State of Illinois; that the said petitioner, Charles E. Harness, prior to the 5th day of November, 1927, was an employee of the said State of Illinois at such institution, as a carpenter.

That while the said Charles E. Harness was:so employed and in the course of his duties as such carpenter, on or about the 5th day of November, 1927, was operating an electrical circle saw, with due and proper care for his own safety; said saw did cut, and tear the flesh and bone from the first, second, and third fingers of the left hand; necessitating the amputation of the first and second phalanges of all three 'fingers; that he was greatly hurt, bruised, and wounded, and was sick, sore, lame, and disordered, and remained so for a long space of time; during all of which time the petitioner suffered great pain, and was prevented from performing and transacting his affairs and business; and also, your petitioner spent large sums of money in endeavoring to be healed of said wounds and sickness.

The statements made in the above declaration were sustained by the evidence. '

The Attorney General filed a statement herein setting ■ forth the fact that the claimant received Two Hundred Sixty-seven and 40/100 Dollars ($267.40) as salary and wages from the date of the injury until he resumed work at the institution and that the claimant has one child under' the age of sixteen years dependent upon him for support.

The Attorney General recommends that the claim be allowed in accordance with the Workmen’s Compensation Law.

We, therefore, allow the claim in the sum of $1,425.10.


text:
    (No. 1373
    Harold Lenox, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1929.

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

delivered the opinion of the court:

The claimant herein was a motorcycle officér, an employee in the Division of. Highways, Department of Public Works and Buildings of the State of Illinois. He received a gun shot wound in his right leg by reason of dropping his gun, which was accidently discharged.

The wound was in the calf of the leg, penetrating entirely through the leg muscle just below the knee, severing the nerve which controls the muscle which raises and lowers the foot.

This accident occurred to the claimant in line of duty in the course of his employment. He was married and had four children under the age of sixteen years at the time of the accident.

It would appear to the court that claimant was injured in line of duty and from all the evidence, it is the opinion of the court that the claimant suffered permanent partial injury and it is the opinion of the court and the court recommends that claimant be allowed the sum of Fifteen Hundred Dollars, ($1,500.00).


text:
    (No. 1384
    W. L. Wiseman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1929.

    Bent. F. Cassiday, for claimant,
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This declaration filed by W. L. Wiseman, shows that on the 15th day of March, A. D. 1928, the defendant, through the Department of Public Works & Buildings, Division of Highways, was engaged in the construction, testing and maintenance of certain durable hard surface roads within and for the said State of Illinois, and it became necessary for said defendant in the construction, testing and maintenance of said roads to conduct a research laboratory at First and Ash streets, in the city of Springfield, Illinois, for the purpose of making certain tests of materials used and to be used in the construction and maintenance of said roads, and was at said time and place making laboratory tests of concrete beams and in preparing to make such tests it was necessary to heat a certain piece of iron and bend it into a hook for beam breaker used in testing said concrete beams, and by reason of said piece of iron being so heated and bent as aforesaid, it was dangerous and unsafe for a person to perform such work in such manner and this the defendant knew or by the exercise of reasonable diligence could have known.

That the claimant was instructed and ordered by the defendant to perform such work and said claimant attempted to perform such work with all due care and caution for his own safety, said piece of heated iron being hammered and bent slipped out of the tongs by which it was being held and struck the claimant with great force and violence in the right eye and the claimant was bruised, injured and wounded, and suffered a partial permanent injury to his right eye, bruises and scratches on the face and claimant was sick, sore, lame and disordered for a long time, during all of which time he suffered great pain and was hindered and prevented from attending to and transacting his affairs and business, the claimant did lay out money, amounting to Twenty-five Dollars ($25.00) endeavoring to be cured of his said wounds and bruises.

The Attorney General files a statement setting forth that there does not seem to be any controversy as to the facts relative to this injury. Attorney for claimant has given a fair presentation of the facts and is claiming the sum of $901.00 as damages, based on medical testimony, which is not disputed by the State.

We, therefore, award the claimant the sum of $901.00, the full amount of his claim.


text:
    (No. 1392
    Jessie Mead Henion, as Executrix, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1929.

    Vent & Warfield, for claimant.
    Oscar E. Oarlstrom, Attorney General; Frank E. Eagle-ton, Assistant Attorney General, for respondent.
   Per Curiam:

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

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


text:
    (No. 1116
    William V. Hoier, Doing Business as Wm. V. Hoier & Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    Frederick C. Jonas, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

On November 1st, 1922, claimant entered into a contract with the State to provide all the materials and perform all the work for the installation of the heating, ventilating and refrigerating systems for the main building and orthopedic building of the research and educational hospitals of the State located in' Chicago. The work to be done under this contract included the construction and installation of a temporary boiler plant by claimant. The contract, however, gave the State the right to make additions to and deductions from the work to be performed under it, and some time after its execution the State determined not to have the temporary boiler plant constructed. On August 22, 1923, the State entered into a second contract with claimant whereby he agreed to do certain specified additional work at these hospitals, which included the construction and- installation of the temporary boiler plant above mentioned by November 1, 1923. On June 9, 1924, claimant entered into a third contract with the State to provide all the materials and perform all the work for the complete equipment of the power house at these hospitals, the work to be finished by October 15, 1924. On June 11, 1924, the State also entered into a contract with the C. A. Moses Construction Company to provide all the materials and perform all the work for the construction of the power house by October 15, 1924. For some reason not disclosed in this record, but through no fault of claimant, the construction of the power house had not even been begun on the date it should have been completed, and claimant for that reason was not able to perform his contract to install, the equipment by that date. The failure to have the power house constructed within the time specified necessitated the use of a temporary boiler plant until its completion, which was not until October 1, 1925. As this delay was not the fault of claimant the State officials agreed that if he would leave his temporary boiler plant there and allow the State to use it until the power house could be built and the permanent plant installed he should be paid a reasonable price per day for its use for such time as the State should use, and with that understanding it was permitted to remain and was used for 350 days after October 15, 1924.

Claimant alleges that in the performance of these contracts he furnished the State certain extras for which he has not been paid and that the State should also pay him at the rate of $20.00 per day for the use of his temporary boiler plant for the time the State used it after October 15, 1924, and files this claim for $7,384.60 itemized as follows:

For use of temporary boiler plant 350 days

@ $20.00 per day......................$7,000.00

For substituting larger pipe..............$ 77.00

For installing an additional radiator......$ 81.50

For changing pipe connections............$ 226.10

The evidence of the claimant shows that the use of the temporary boiler plant was reasonably worth at least $20.00 per day and that the extras were furnished at the direction of the supervising architect. The State has introduced no evidence and concedes claimant is entitled to the amount demanded.

It is therefore ordered that claimant be and he is hereby awarded the sum of $7,384.60.


text:
    (No. 1131
    S. A. Rudd, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    John L. Walker, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim to recover damages on account of building of hard road by the State Highway Department of the State of Illinois, adjacent to the City of Joliet.

Evidence was heard and arguments made and the Attorney General comes and consents to an allowance of Twenty-seven Hundred Dollars ($2,700.00) as compensation to claimant.

Therefore, it is recommended by this court that the claimant be allowed the sum of Twenty-seven Hundred Dollars ($2,700.00).


text:
    (No. 1137
    Laura Dorre, James P. Ward & May Ward, Fred F. Meiferdt & Belle Meiferdt, Frank G. Pierce & Lillian Pierce, Florence Larking & Richard Larking, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    John L. Walker, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim to recover damages on account of building of hard road by the State Highway Department of the State of Illinois, adjacent to the City of Joliet.

Evidence was heard and arguments made and the Attorney General comes and consents to an allowance of Fifty-four Hundred Dollars ($5,400.00) as compensation to claimants.

Therefore, it is recommended by this court that the claimants be allowed the sum of Fifty-four Hundred Dollars ($5,400.00).


text:
    (No. 1141
    Leslie Smith, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    Costigan & Wollrad, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank B. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The claimant in this case files his declaration setting forth that he has a claim against the State of Illinois in the sum of $338.50.

It appears from the declaration ánd evidence that on Monday, August 16th, 1926, the claimant left the City of Bloomington at approximately 3:00 o’clock in the morning intending to go to Iowa Falls, Iowa; that he proceeded north on State Highway No. 2; that shortly prior to sunrise it became rather foggy and as he proceeded northward about three miles north of Tónica, Illinois, at about 5:00 o ’clock in the morning, he saw a red light ahead on the concrete highway to the right side thereof, and thinking that it was a car stopped he turned to the left side, that he went down into a deep hole where construction work was being done on the pavement which had not been completed.

The claimant states that his wife accompanied him on the trip and was in the car when it turned over, that she was badly cut and bruised on the face and hands.

It is admitted that this construction was being done by the State of Illinois upon one of its highways. It is also admitted that the claimant suffered damages to his car and that his wife was somewhat injured.

We are of the opinion that the State assumes no responsibility other than to build the roads and keep them in good repair, they put up warning signals as to the condition of the road and other signs as well as in this case had red lights placed in the road to protect the travelling public. It would appear that the claimant after having seen this warning sign was very negligent in not stopping to determine the ■condition of the highway at that point.

This case is, therefore, dismissed.


text:
    (No. 1230
    The American Brake Shoe and Foundry Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

    Whitman, Miller & Coon, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim filed to recover $2,159.58 on account of franchise tax collected in 1922. It appears that the proposition involved here was considered by the court in the opinion filed by this court on the 1st day of May, 1925, which opinion was reported in Volume 5, Court of Claims, page 131. It appears that a subsequent opinion of the Supreme Court of the State of Illinois, gave claimant a reasoning which would justify them in again appealing to this court for a further allowance.

Subsequently to the filing of the opinion in the above case, this court was impressed with a great volume of claims presented and to be presented on the principle involved in the case above reported, and as a matter of justice to the people of the State of Illinois, in view of the overwhelming demands that could be brought against the State of Illinois, this court wrote the opinion known and described as the Moline Plow Co. v. State of Illinois, reported in Volume 5 of the Court of Claims, pages 277 and 278, in which it was held that if claimants had an adequate remedy in a court of general jurisdiction, that this court would not consider such claims. This attitude was taken by this court as a matter of justice to the defendant the State of Illinois, and this court is further of the' opinion that justice is done to the claimant to deny relief here wherein there was a right and opportunity of having cases of this character determined by the courts of general jurisdiction of the State. As a matter of fact this court is an advisory committee to the Legislature of the State of Illinois, and it is believed by this court that where matters can be litigated in the courts of general jurisdiction, that.such a method ought to be followed rather than to bring before this court controverted matters that are in 'doubt. The courts of general jurisdiction should sift out the questions of law and create precedent by the jftdicial department of the State that would furnish light for this court and for the Legislature to follow. Can it be assumed that the Legislature of this State should be called upon to determine the legal rights of an individual or private corporation in any proposition wherein the judicial department óf the State as created by the Constitution, should and would take jurisdiction.

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


author: Mr. Justice Leech Per Curiam:

text:
    (No. 1231
    Dime and Savings and Trust Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1929.

      Rehearing denied May 9, 1929.

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

delivered the opinion of the court:

The petition sets up and shows that inheritance taxes in the matter of the estate of Elizabeth Becker, who died a resident of the State of Illinois, were fixed and paid upon the beneficial interests passing in said estate, determined upon a gross estate of $243,561.21, and a net estate of $206,733.86.

Stipulations as to all facts involved in the instant case have been entered into by and between the Hon. Oscar E. Carlstrom, Attorney General for the State of Illinois, representing the State of Illinois, respondent, defendant, and J. E. Houston, attorney for the petitioner, claimant, duly signed by the respective parties aforesaid and filed in the office of the clerk of this honorable court, which stipulations set forth and disclose the true value of the gross estate of said decedent within the State of Illinois, the deductions from gross estate, the exemptions of the several beneficiaries thereof, the net taxable estate to the several beneficiaries, together with a computation of taxes respectively due upon the several beneficial interests passing, dates of satisfaction thereof and the difference between the taxes originally assessed and paid and the sums which were properly taxable, had all facts been known at time of entering of original order finding and fixing inheritance tax in the matter of the estate of Elizabeth Becker, deceased, which petitioner, claimant maintains and alleges was wrongfully and erroneously fixed and collected.

The stipulations on file disclose no appeal was taken from the original order of the County Judge of Peoria county, Illinois, finding and fixing tax, said matter originating from Peoria county, Illinois, where decedent resided at time of her demise. Gross values have been established, deductions from decedent’s gross estate have been passed upon by the Probate Court of Peoria county, Illinois, and allowed in the sums set forth in the petition bringing this matter before this court, and are evidenced by true, complete certified copies of orders, decrees, reports, etc., and receipts attached to and made a part of the record herein.

It is the opinion of • the court that the claimant had an entire and complete remedy at law and claimant should have perfected its appeal if dissatisfied with the ruling of the Probate Court. The court has heretofore taken the position in numerous other cases that where there is a remedy at law, the remedy at law should be taken advantage of instead of coming into the Court of Claims of the State of Illinois and owing to the fact that in this case the claimant did have a complete remedy in a court of law in this State the claim is dismissed.

On May 9, 1929, upon petition for rehearing the following additional opinion was filed:

Per Curiam:

This cause coming on to be heard after prayer of petitioner for rehearing granted, and after argument of counsel and due deliberation by the court, and it appearing that there is'no cause shown why the order heretofore entered should not remain, it is therefore considered by the court that the claim be denied and the case dismissed.