text:
    (No. 848
    Claim denied.)
    Leslie R. Henline, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

    Hard roads — when claimant not entitled to he compensated. The State is not liable to compensate claimant, who as a mortgagee with knowledge that the land is being taken for the construction of the State hard road, receives a part of the consideration paid to the mortgagor in condemnation for the right of way and credits same on the mortgage indebtedness.
    William C. Radliff, for claimant.
    Oscar E. Carlstrom, Attorney General ; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

On January 22, 1920, Jesse E. Haworth executed a trust deed conveying to Frank 0. Hanson, trustee, 88 acres of land in McLean county to secure the payment of his note of even date, payable to Ms order,, for $11,000.00, due in five years, with interest thereon at 5y2%. The note was duly endorsed and delivered to Hans Sachs, conservator for Arnetta O. Gregory. Thereafter, on May 23, 1921, Haworth executed and delivered an instrument conveying to the People of the State of Illinois a strip of ground across a portion of said land for the right of way of State Route No. 4, which instrument was filed for record in the recorder’s office of McLean county August 9, 1922, and recorded in Book 352 of Deeds at page 150. The right of way contained 5.02 acres, for which $752.00 was paid to Haworth. At the time the release for the right of way was taken Haworth was the owner of the. land and Sachs was the owner of the note secured by the trust deed. Haworth was given a check for $125.00 by persons who represented the State in the transaction, which check was endorsed by him and delivered to Sachs, who credited it on the interest due on the note. Sachs knew that Haworth had signed and delivered the release for the right of way, and it is evident the $125.00 check given him by Haworth was part of the $752.00 paid Haworth for the release. Sachs knew of th'e conveyance. of the right of way by Haworth and did not object to it. It is apparent he consented to it, as he testified that he was satisfied the taking of the strip of land for right of way would not jeopardize his ward’s interest because he thought the hard road would add enough to the value of the farm to compensate for the land used.

The interest due July 22, 1922, and January 22, 1923, on the $11,000.00 note held by Sachs not being paid, the whole debt was declared due and a bill filed in the circuit court of McLean county to foreclose the trust deed, and a decree of foreclosure granted April 28,1923. The decree provided that the master in chancery should issue a certificate to Sachs, as provided by the act approved June 11, 1917, and that if the land was not redeemed within 15 months from-the date of the certificate, the master should sell it to satisfy the amount due and costs. The land, not having been redeemed, the master sold it September 13, 1924, to claimant for $19,712.00 cash, which was more than the amount due Sachs, including interest, solicitor’s fees, costs, and expenses of the,sale. The master in chancery furnished claimant an abstract of the title to the land, which claimant had his attorney examine. This abstract showed the conveyance of the right of way by Haworth and that the consideration paid for it was $752.00. Claimant knew as early as November, 1921, that the road was located on the land in question, and at the time he bought-it he knew the pavement had been laid and the road completed.

The record also shows that Haworth is insolvent and that there is a number of unsatisfied judgments against him.

Claimant asks that the State pay him the $752.00 heretofore paid to Haworth upon condition that he execute and deliver an instrument conveying the right of way in question to the State. The Attorney General filed a general demurrer to claimant’s declaration. As both parties have submitted evidence, the demurrer will be overruled and the case heard as if a general traverse of the declaration had been filed.

The right of the State is paramount to that of the individual. Every person who owns property holds it subject to the right of the State to take it for public use. The only limitation upon the power of the State to take private property for public use is, that it cannot be taken without just compensation to the owner. If the owner and the State cannot agree upon the compensation, the State may have the compensation fixed by a court of competent jurisdiction. Before the aid of the court can be invoked the State must endeavor to agree with the owner upon the amount to be paid for the property to be taken. If no agreement can be reached 'a petition may be filed in court to have the value of the property ascertained. If an agreement is reached no petition can or need be filed, as the owner, upon payment of the amount agreed on, can convey the property needed. All persons having an interest in the property must be made parties to proceedings for condemnation. If the property is mortgaged the owner of the mortgage is a necessary party. But he cannot defeat the right of the State to take the property. All he can do is have the court protect his interest by ordering an equitable portion of the compensation awarded paid to him to be applied on the debt secured by the mortgage. (Trustees of Schools v. Harshman, 262 Ill. 72.)

In the present case no persons had any interest in the land taken for the right of way of the road except Jesse E. Haworth and Hans Sachs. Haworth owned the fee, subject to the mortgage, and Sachs owned the mortgage. Haworth agreed with the representatives of the State to convey the right of way for $752.00. He executed and delivered the conveyance of the right of way and the $752.00 was paid to him. Sachs knew of this agreement and conveyance, and was virtually a party to it. He received $125.00 of the money paid to Haworth and credited it on the mortgage debt due to him from Haworth. He was satisfied with the arrangement because, in his judgment, the construction of the paved road would increase the value of the mortgaged property more than the value of the land taken for right of way. In this view he was probably correct. In any event the land sold for several thousand dollars more than enough to pay his debt, interest and costs, and neither he nor Haworth suffered any loss because of the conveyance of the right of way to the State.

With knowledge of these facts, claimant voluntarily purchased the property, and to now require the State to pay for it a second time would be highly unjust and inequitable. The claim will be disallowed and the cause dismissed.


source: Caselaw Access Project

author: Mr. Justice Leech

license: Public Domain

text:
    (No. 931
    Claimant awarded $55,104.46.)
    Montgomery Ward & Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

    Franchise tax — when refund may be awarded. The decision of the court in the case of Altorfer Bros. v. State, controls in this case.
    Moran, Paltzer & O’Donnell, for claimant.
    Oscar E. Carlstrom, Attorney General ; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The claim in this case is for the repayment of excess taxes paid by the claimant. The facts are not in controversy in this case and are substantially the same as those in the case of Altorfer Brothers Company, in which we have filed an opinion today. The questions of law involved'are' also the same. There is no question involved here of the Statute of Limitations. For the reasons given in the Altorfer case, we, therefore, are of the opinion that this claimant is entitled to the refund of excess taxes paid aggregating $55,104.46 and that the State should in equity and good conscience repay this sum. The sum is hereby awarded.


author: Mr. Justice Thomas

text:
    No. 938
    Claim denied.)
    August Toedter, Edward Toedter and Matilda Toedter, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.
    Eminent domain — judgment of court in condemnation proceeding binding. The county court in condemnation proceedings, having all parties interested in the subject matter before it, is binding upon all parties thereto, until it is reversed, modified or otherwise adjudged erroneous.
    Former adjudication — same question cannot again he litigated. Where the court having jurisdiction of the subject matter and of the parties decides a controversy, the same question or issue involved is settled forever between them, and all persons in privity with them or either of them, and neither of them can again litigate any fact or question which was decided in the former proceeding, or could have been raised in the former’proceeding.
    Court of claims — when without jurisdiction. The Court of Claims is without jurisdiction to determine whether the county court erred in its decision in a condemnation proceeding. The remedy is an appeal from the decision.
    Oscar W. Hoberg, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimants are the widow and two sons of John Toedter, deceased, who died testate in LaSalle county, May 20, 1923. By the terms of deceased’s will his widow is given a life estate in the lands described in the declaration in this case and the two sons are given the remainder in fee.

On May 17, 1924, the Department of Public Works and Buildings, acting for and on behalf of the people of. the State of Illinois, filed a petition in the county court of LaSalle county to condemn a strip of land containing 1.385 acres out of the lands of claimant for the right of way of a portion of State Route No. 2. Claimants were made parties defendant to the condemnation proceedings, were served with process and appeared and contested the action. In that suit claimants contended that the other and adjacent lands of theirs described in the declaration filed in this case would be damaged by the construction of. the proposed road and offered testimony to prove such damages. But the court refused to. permit them to give such evidence because they had filed no cross-petition praying to have' such damages ascertained. Thereupon claimant moved the court for leave to file such cross-petition instanter but the court denied their motion. Evidence was introduced by both the State and claimants and the jury having viewed the premises returned a verdict fixing the compensation of claimants for the land taken at $415.50, and judgment was rendered for that amount. Claimants prayed an appeal to the Supreme Court which was granted. They did not perfect their appeal and the judgment of the trial court became final. The foregoing facts all appear from the allegations of the declaration filed in this case, and claimants are now asking this court to award them the damages for lands not taken which the county court refused to permit them to prove in the condemnation proceedings.

The Attorney General filed a demurrer to the declaration, and evidence has been submitted by both parties.

The power of eminent domain is inherent in the State, and all citizens hold their property subject to the right of the State to take it for public use. The only litigation on the power of the State to appropriate private property for public use is that just compensation shall be paid to the owner of the property so appropriated. Where the owner and the State cannot agree on the compensation to be paid the State may institute proceedings in a court of competent jurisdiction to have the compensation fixed by a jury, and that was done in this case. By filing the petition to condemn the lands of claimants the State voluntarily submitted itself to the jurisdiction of the county court, and by the service of the summons on claimants the court acquired jurisdiction of them. The court thereby became clothed with power to adjudicate and decide all questions connected with and arising out of the condemnation proceedings. In that suit claimants sought to show that the construction of the proposed road through their land would result in damages to.the land not taken for right of way purposes, hut the court refused to permit them to make such showing. That question was one properly before the court in those proceedings and its judgment thereon is binding upon all the parties thereto so long as it stands unreversed. When any question has been finally determined in a proceeding in a court having jurisdiction of the subject matter and parties in the action such question cannot again be litigated between the same parties either before the same or another tribunal until that adjudication has been reversed, modified or otherwise adjudged erroneous. In U. P. Ry. Co. v. C. R. I. & P. Ry. Co., 164 Ill., at page 105, the Supreme Court in discussing this question said: “The rule deducible from the cases in this State is, that a question which is involved within the issues of a former controversy is conclusively settled, as between the parties, by the decision in that controversy, whether the court in its judgment .passed specifically on that particular question or not.” In Chicago Terminal R. R. Co. v. Barrett, 252 Ill., at page 89, the rule is announced in the following language: “When a court having jurisdiction decides a controversy, the question involved is settled forever between the parties to the suit and persons in privity with them, and neither can again litigate with the other any fact or question actually or directly in issue which was passed upon and determined by the court.” The county court of LaSalle county had jurisdiction of the' subject matter of the condemnation proceedings and of the parties to it. The subject matter included the question of damages to lands of claimants not taken for right of way purposes. Claimants submitted that question to the court for decision (1) by offering to prove such damages and (2) by asking leave to file a cross-petition setting up such damages. The county court decided the question adversely to the contention of claimants. That decision was not appealed from and is still in full force and effect and binding upon all parties to that suit. Whether or not the county court erred in its decision is a question which this court has no jurisdiction to determine. Under the provisions of section 12 of the Eminent Domain Act claimants had the right to appeal from that judgment to the Supreme Court. The county court granted them an appeal in accordance with the provisions of law but they did not see proper to perfect it. Not having done so, the judgment became final and they are bound by it, and cannot re-litigate the question in this court.

The declaration showing on its face that claimants have no cause of action, the demurrer will be sustained.

Although claimants’ declaration shows they are not entitled to maintain their action, we have carefully read and considered all the evidence introduced in the case and the arguments in support of their claim, and have reached the conclusion that they have suffered no damage by the construction of the road other than the value of the land taken for right of way.

The claim will therefore be disallowed and the cause dismissed.


text:
    (No. 965
    Claimant awarded $29,522.86.)
    Stewart-Warner Speedometer Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

    Franchise tax — when award may he made. This case is controlled hy the decision of the court in cases of Booth Fisheries v. State and Altorfer v. State.

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

delivered the opinion of the court:

In this case there is involved the claim for a refund of excess annual taxes paid and also a claim for refund of excess additional initial fees paid. The facts showing that these payments were made under duress and compulsion are the same as those in the Altorfer case, and our conclusion as to the law on this point is the same as in the Altorfer case. It appears that the claimant had paid the sum of $32,067.14 in excess of the amount due it under the law as annual taxes in the years mentioned. There was, however, the defense of the Statute of Limitations, the same as set forth and discussed in our decision in the Booth Fisheries case, and, in the case of this claimant, the amount so paid was $11,159.78. We reach the same conclusion in this item as was reached in the Booth Fisheries case in the item there. This sum having been paid more, than five years before the suit was filed and this claim being based upon the question of the construction of the statute which the court could have passed upon at any time, we have "decided that the court will not allow this item of the claim. The remaining items on the annual tax are allowed. These aggregate $21,908.36. There is an additional claim in this case for excess initial fees paid by this corporation, amounting to $7,614.50. The question of law involved as to this item is the same as the similar question involved in the Altorfer case, and our conclusion is, as we announced there, that the State should, in equity and good conscience, refund this excess initial fee so paid. The court, therefore, finds that this claimant is entitled to an award of the aggregate of said two sums, amounting to $29,522.86. This court is of the opinion that the State of Illinois, in equity and good conscience, should repay said sum and said sum is hereby awarded.


text:
    (No. 966
    Claim awardéd $6,941.25.)
    Altorfer Bros., Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.
    Franchise tax — when paid under duress may he refunded. Where the franchise tax has been paid under legal duress it may he -recovered.

      Same — how payment under determined. Whether the payment of the tax was made under duress may be determined from the surrounding facts and circumstances. ,A written letter of protest is unnecessary to preserve the tax payers’ rights.

      Same — written protest. Act of 1923. The. act of 1923 providing for the holding of moneys thirty days where paid under written protest did not abrogate the common law rule that payment under duress or compulsion may be recovered, but only provides an alternative procedure where payments are made under written protest.
    Additional initial fees — how assessed. Additional initial fees should be assessed upon the increase of the capital stock of the corporation.
    Construction of statutes — when court will construe statute. The Court of Claims has the right to construe a .statute when its construction is necessary to enable the court to perform its duty in determining the legality of a claim before it for consideration.
    Paul O’Donnell, for claimant.
    Oscar E. Carlstrom, Attorney General ; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The claim filed herein is for a return or award of excess franchise taxes and initial fees paid by the claimant prior to the year 1923. The facts are not in dispute, and only questions of law are involved herein.

The claimant is entitled to a' refund of $4,156.25 under the ruling of the Supreme Court in the case of People, ex rel, Roberts & Schaefer, v. Emmerson, 305, Ill. 348, provided this court decides that the payments made by this company were involuntary. The Attorney General, in his very able brief, has contended that this claimant cannot recover on this item because no written letter of protest was filed with the payment or payments making up the total excess amount above set forth. The Supreme Court of Illinois, in the Illinois Glass Company v. Chicago Telephone Company, 234 Ill. 535, expressly holds that ‘ ‘ compulsion may appear from the circumstances and not from any expression of unwillingness or protest against the payment.” The same court, in a large number of cases involving the claims for return of taxes paid to various local taxing bodies, has repeatedly'held that payments made under duress or compulsion are involuntary and that no letter of protest is necessary in order to prove that the payment was involuntary and that said fact may be determined from the surrounding facts and circumstances. From the facts in this case, and especially from the drastic provisions of the General Corporation Act, this court is of the opinion that the payments were not made voluntarily by the claimant, but were made under duress. The facts in the case of Swi v. United States, Ill. U. S., page 22, which was an appeal from the Court of Claims to the United States Supreme Court, were very similar to the facts in this case, and the Supreme Court of the United States in that case held that a •written letter of protest was unnecessary to preserve the taxpayers ’ rights, where the statute did not make such a letter a condition precedent to the recovery of the tax. No provision of the statutes of the State of Illinois required that money sought to be recovered must be paid under protest prior to the year 1923. There was, in the year 1921, enacted a statute which did provide for a special procedure if the moneys were paid under a written letter of protest, but that statute apparently reserved to this court the jurisdiction of determining the same claim by the procedure usually followed in this court. The statute did not do away with the common law rule that payment under duress or compulsion may be recovered, but provided an alternative procedure where payments were made under written protest. In the year 1923 this statute, enacted in 1921, was repealed. A new statute was passed in 1923 which provided for the holding of money paid under written letter of protest for a period of thirty days so as to enable the protesting taxpayer to bring his protest to the notice of a court of record by a proper injunction proceeding. The Attorney General has ably argued that this statute" establishes a procedure for testing these questions and recovering illegal taxes in courts of record, and that this court should refuse to take jurisdiction of such claims, where the claimant might have gone into a court of record and litigated his claim there against a State officer having custody of the funds. There is a great deal to be said in favor of the argument advanced by the Attorney General, however, the payments involved in these claims were all made prior to the enactment of the statute of 1923, and his argument, therefore, has no weight in this particular case.

The second point involved in this case is a question of the right of this claimant to recover the sum of $2,335.00, which-it paid as additional initial fees and which it claimed were not required to be paid by the statute, but were collected by the Secretary of State and paid by the claimant under compulsion and.duress. The facts with reference to the compulsion and duress were practically identical with those we have discussed above, and we reach the same conclusion as to that point as we did above with reference to the excess annual taxes paid. There is the further defense urged by the Attorney General as to this item which is not urged as to the annual tax. The Attorney General claims that this court has no right to construe the statute of the State of Illinois and determine its meaning. In this" case the Secretary of State construed the General Corporation Act to mean that wherever a corporation changed its shares from par value into no par value, even though it did not increase either expressly or actually or theoretically its authorized capital stock, nevertheless, since it did increase its shares and change them from par to no par, that the statute provided for an additional initial fee based upon authorized capital stock computed by multiplying the non par shares $100 each. The statute says quite plainly that the additional initial fee shall be assessed upon increases in the capital stock. It also says that where the company has non par stock or shares, such shares shall be considered of the par value of $100 each. This same question was before the Supreme Court of Massachusetts in the case of Hood Rub ber Co. v. Massachusetts, 131 N. E. 201. The court, in that case, in a very well-reasoned opinion, construed the statute to mean that all the actual increases of the capital stock were meant by the legislature to be subject to the assessment of an additional initial fee. The act in Massachusetts was quite similar to the act here in Illinois.

We believe that the complainant’s construction• of the statute is correct and that the Secretary of State assessed this company an excess amount as additional initial fees. This court has the right to construe a statute when its construction is a necessary function for this court to perform in passing upon and determining a claim presented to it. The conclusion of this court, therefore, is that the State of Illinois' should, in equity and good conscience, repay to the claimant the total sum claimed by him, amounting to $6,941.25, and such sum is hereby awarded.


text:
    (No. 983
    Claimant awarded $1,235.60.)
    Booth Fisheries Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

    Franchise tax — tax paid under duress may be refunded. The tax being paid under duress or compulsion may be refunded.
    Statute of limitations — when it begins to run. Where the statute under which the tax was paid was declared unconstitutional by the Supreme Court, the statute begins to run against the claim from the date of the decision of the court, otherwise it begins to run from the date of the payment of the tax.
    Paul O’Donnell, for claimant.
    Oscar E. Carlstrom, Attorney General ; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The facts in this case are not in dispute and it is admitted that the claimant paid the sum of $2266.90 as excess franchise taxes in the years 1920, 1921 and 1922. These computations are based upon the ruling of the Supreme Court in the case of People, ex rel Roberts & Schaefer v. Emmerson, 305 Ill. 348. The question of whether the payment was voluntary or made under duress and compulsion was presented and argued by both sides and the facts and the law as to this point is the same and onr conclusion is the same as that arrived at in the case of Altorfer Brothers Company, No. 966, on which we have filed an opinion. There is, however, in this case an additional point not occurring in the Altorfer case and that is that one of these tax payments sought to he recovered was paid in July, 1920, and the claim was not filed until more than five years after the date of the payment. This fact appears upon the face of the claim and is raised in this case. Counsel for the claimant seeks to obviate the running of the Statute of Limitations by calling the court’s attention to the fact that the Attorney General argues that this court has no right to construe a statute of the State of Illinois, but must wait until the Supreme Court has passed upon and construed the statute. Counsel for the claimant says he agrees with the Attorney General that this court usually will not construe a statute and argues that since the court would not construe the statute and declare the tax to be excessive as levied under the construction given the statute, by the Secretary of State that, therefore, the Statute of Limitations did not begin to run until the Supreme Court of Illinois has construed the statute .and the Statute of Limitations was run from the date of such decision by the Supreme Court of Illinois.

We cannot agree with either the Attorney General or the claimant’s attorney in this 'matter. This court does have power to construe statutes where it is necessary on claims brought before this court and can, and often does, reach a different conclusion from the Secret.ary of State or other officers on questions of construction. It follows, therefore, that the cause of action of this claimant first arose immediately upon the making of the payment and the Statute of Limitations would start to run from that time. The attorney for the claimant makes the further argument that the Supreme Court of Illinois in the O’Gara case has held the statute to be unconstitfitional and that the Statute of Limitations should not begin to run except from the time when the Supreme Court of Illinois declared the law to be unconstitutional.

We agree with counsel that this court has no jurisdiction to declare statutes unconstitutional. If the basis of recovery were the unconstitutionality of the statute, we would compute the time for running of the statute from the date of the decision of the Supreme Court so holding the law to be unconstitutional, provided we were convinced the claimant had used due diligence to have the statute tested and had not slept upon his rights. However, in the case at bar it appears the claimant does not make his claim upon that basis. It follows, therefore, that we must find against the claimant, as to the item paid more than five years before the filing of this claim. This item was $1,031.30. The court is of the opinion that the remainder of the said claim is just and that the State in equity and good conscience should pay it, and, therefore, awards the claimant the sum of $1,235.60.


author: Mr. Chief Justice Clarity

text:
    (Claims allowed.)
    Frank W. Peterson and Mary Peterson, his Wife, 997; Eliza Monahan, 998; Concezio Deacetis, 999; John Petruska and Margaret Petruska, his Wife, 1000; John August Rosell and Selma Rosell, his Wife, 1001; John August Rosell, 1002; Gustav A. Holmes and Mary Holmes, his Wife, 1003; John E. Schwab, 1004; Margaret Kessler, 1005; R. L. Fitzgerald, 1006; Oscar E. Busch, 1007; Frank Balogh and Elizabeth Balogh, 1008; Victor Anderson, 1009; Royce F. Zinger, et al., 1011; Emma Buchmeier Keeler, 1012; George F. Pierce and Lily Pierce, his Wife, 1013; Charles Lindstrom, 1014; Claimants, vs. State of Illinois.

      Opinion filed May 26, 1927.

    Hard roads — when award may he made for damages sustained by construction of. Where by the construction of the State hard road claimants sustained damage to their property by being deprived of access to their property, or to access to the public thoroughfare on which their property fronts, and are deprived of the light and air, an award may be made to them for the damages sustained.
    Snapp, Heise & Snapp, for claimants.
    Oscar E. Carlstrom, Attorney General ; William E. Trautmann, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

All of said claims were brought on account of the construction of a hard road known as Route 22, running from the Indiana State line on -the east to the Mississippi river on the west, it being alleged by claimants that during the year 1925 this road was constructed upon and along a road called East Cass street, just outside the city limits of the city of Joliet, Illinois, and that a long, high and wide viaduct was built over the railroad tracks and right of way of the Elgin, Joliet and Eastern Railway Company, with long and gradual approaches thereto, and which viaduct is along and in front of the property of the claimants. It is further alleged that said viaduct was built in such a manner as to occupy all of the street or roadway and raised the roadbed thirty feet and upward fronting the properties of claimants, depriving claimants of the light and air and practical access to the public thoroughfare of said claimants’ property fronts.

Evidence was heard and the following stipulation was agreed upon and executed in behalf of the claimants by their attorneys, Snapp, Heise &' Snapp, and the defendants, The State of Illinois, by its Attorney General, Oscar E. Carlstrom, which stipulation is, in words and figures, as follows, to-wit: “It is agreed and stipulated between the parties, upon a consideration of the provisions that the testimony of the minimum witness as to the total amount of damages to property be agreed upon, except as to the damages in No. 999 and 1004, in which cases the damages are increased to an amount based upon actual offers for the purchase of the property, and that the undisputed proof of damages to business is also agreed upon, except that the damages in No. 1014 be reduced to an amount $1,000.00 less because of a clerical error in computation made by counsel for the-petitioners. It is further stipulated that in No. 1011 the property damages agreed upon shall .be the minimum amount as disclosed by the proof and . business damages in said No. 1011 shall be the amount disclosed by the uncontroverted proofs.

It is further stipulated that the following amounts arrived at as aforesaid are agreed upon:

No. "Claimant — Injury to Real Estate
997 Peterson .................................................? 2,500.00
998 Monahan ................................................ 1,500.00
999 Beacetis ................................................. 12,500.00
1000 Petruska ................................................ 3,100.00
1001 Rosell ......................................'............. 3,000.00
1002 Resell ................................................... 3,500.00
1003 Holmes .....;............................................ 2,500.00
1004 Schwab .................................................. 3,000.00
1005 Kessler .................................................. 7,800.00
1006 Fitzgerald ............................................... 4,500.00
1007 Busch ......................-............................. 3,600.00
1008 Balogh .................................................. 2,950.00
1009 Anderson ................................................ 1,500.00
1012 Keeler ................................................... 2,450.00
1013 Pierce ................................................... 1,550.00
1011 Zinzer ................................................... 15,000.00
Injury to Business
999 Deacetis ................................................. 2,400.00
1006 Fitzgerald ................................'............... 1,600.00
1011 Zinzer ................................................... 10,000.00
1014 Lindstrom ............................................... 1,736.40
It is therefore considered by this court, by reason of said stipulation, that the claimants be allowed the amount specified in said stipulation, and it is now herein "recommended that claimants be allowed the amounts as hereinafter set forth:
No.
997 Frank W. Peterson and Mary Peterson, his wife...........$ 2,500.00
998 Eliza Monahan .......................................... 1,500.00
999 Concezio Deacetis ....................................... 14,900.00
1000 John Petruska and Margaret Petruska, his wife............ 3,100.00
1001 John August Resell, and Selma Resell, his wife............ 3,000.00
1002 John August Rosell.......... 3,500.00
1003 Gustav A. Holmes, and Mary Holmes, his wife............. 2,500.00
1004 John E. Schwab ......................................... 3,000.00
1005 Margaret Kessler ........................................ 7,800.00
1006 R. L. Fitzgerald ......................................... 6,100.00
1007 Oscar E. Busch .......................................... 3,600.00
1008 Frank Balogh, and Elizabeth Balogh...................... 2,950.00
1009 Victor Anderson ......................................... 1,500.00
1011 Royce F. Zinzer, et al.................................... 25,000.00
1012 Emma Buchmeier Keeler ................................. 2,450.00
1013 George F. Pierce and Lily Pierce, his wife................. 1,550.00
1014 Charles Lindstrom ....................................... 1,736.40


text:
    (No. 1039
    Claimant awarded $2,500.00.)
    Andrew C. Anderson and Esther Anderson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

    Property damage — award may be made. Inspection by court. There being no dispute as to the facts in this case and from a personal inspection of the property by the court, an award is entered in favor of claimants for the amount of their claim.
    Hall & Dusher, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank E. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

It appears to the court that from personal inspection of the property and road in question and the recent improvement thereof, that prior to the time the said State road was built, that there was a very good road on the stretch of road adjacent to said premises, and consequently the new road did not give a value to the property, that it would give in the event that there was a dirt road or inferior road before' the last improvement was made, which facts were not disclosed to the court before personal inspection. Consequently, in this particular case, it does not appear to the court that the new road added any particular value to the property of the claimant.

The court is further advised that the Department of Public Works and Buildings had made a statement that the sum of $3000.00 would be k liberal allowance, and the court has been further advised on statements of the Attorney General in open court that, if an award was made, the sum of $2,500.00 would be reasonable.

Therefore, from the records, personal inspection by the court, statement of the Department of Public Works and Buildings and statement of the Attorney General in open court, this court recommends an allowance of $2500.00.


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    (No. 1077
    Claimant awarded $500.00.)
    John Trebusak, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

    Governmental function — hard roads. When State not liable. The State in the construction of its system of hard roads exercises a governmental function and is not liable for the torts or negligence of its employees or officers engaged in its construction.
    Social justice and equity — award may be made. Although the State is not liable for the torts or negligence of its employees or agents in the construction of its hard roads, as a matter of social justice and equity an award may be made to claimant.
    Paul D. Perona, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank R Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The evidence.in this case shows that the claimant, John Trebusak, in the month of September, 1924, and for a long time prior thereto, was and still is the owner of and in actual possession of the following real estate, to-wit: A certain tract of land which is legally described as .21 acres situated in Township Number. Thirty-three (33) in Section Thirty-three (33) in the county of LaSalle, State'of Illinois, and located adjacent to and along Route 2, the same being concrete highway commonly known as the State highway. At a point about 350 yards southeast from the junction point of Routes 2 and 7, both hard-surfaced roads, the piece of land above described has a frontage of 165 feet along and on said Route 2 and' extending 115 feet wide or deep at the east end and 53 feet wide or deep at the west end, that during the month of September, 1924, and prior thereto the claimant and his family resided in the house located on the above described premises in the village of Jones, a small town about three miles south of LaSalle.

The claimant alleges that the State of Illinois, through its duly authorized agents, caused to be laid in said premises during September, 1924, hard-surfaced road commonly known as Route Number 2, which is along and adjacent to the said premises. In the construction of this road, the State of Illinois ’ duly authorized agents and servants caused to be placed a large amount of earth and other material, which it had excavated in the laying and making of said highway upon the real estate of said claimant, John Trebusak, covering all of the frontage along said Route Number 2 of said real estate for from 10 to 15 feet wide and ranging from 3 to 18 feet high all along his land.

A demurrer has been filed to the declaration, which, as a matter of law, is sustained, but this court, in equity, social justice and good conscience, believes that an award should be made, and the Attorney General’s office has agreed that an award of $500.00 should be made to the claimant.

We therefore award the claimant the sum of $500.00.


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    (No. 1082
    Claim denied.)
    Margaret C. Corey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

    Statute of limitations— when claim barred. Under Sec. 10 of Court of Claims Act, all claims against the State are barred, unless filed within five years after it first accrues, except as to persons under disability.

      Same — Sec. 10, is a special limitation statute. The general statute of limitations does not control or apply to claims against the State, as Sec. 10 of Court of Claims act is a special limitation statute.
    Gerald G. Ginnaven, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Claimant filed a claim in this court on September 3, 1926. She alleges that she is the owner of two certain promissory notes designated as No. 4027B and 4669B that were issued by the fund commission of the State of Illinois in 1840, and said notes or bonds are in the sum of $100.00, and are to draw 6% interest from the date of making until paid, and that the notes or bonds are signed by J. Hogan, Pres., of the fund commission, and by William Prentic, Sec., of the fund commission, and were endorsed, “Pay to bearer” and signed by John Hogan, Commissioner. The claimant, by her affidavit, sets forth that she is the owner and bearer of the instruments sued on; that the original notes or bonds were owned by her grandfather and grandmother and that she is the only heir-at-law through them, and that said original notes and bonds were owned by her grandfather and grandmother as aforesaid. The total amount claimed is $296.00, principal and interest.

It is the opinion of this court that the following extract from Section 10, Paragraph 436, Chapter 37, Smith-Hurd’s Revised Statutes, 1925, page 856 (Court of Claims Act), controls in this action, which is as follows:

Every claim against the State cognizable by the Court of Claims, shall be forever barred unless the claim is filed with the secretary of the court, within five years after the claim first accrues, saving to infants, idiots, lunatics, insane persons and persons under disability at the time the claim accrued two years from the time the disability is removed.

It must be conceded that, owing to the fact that the Court of Claims was created by the legislature, the court is necessarily limited to authority given by the legislature, and the court must strictly adhere to the language of the statute in the consideration of the claims before it. This court does not consider that the Statute of Limitations generally would control with the special limitations directed in the Court of Claims Act. The claimant urges that the Statute of Limitations has no application in this case, as said act was passed in 1872, stating that all actions shall be commenced within ten years next after the cause of action accrued because these instruments are not classified as demand notes under the negotiable instrument act which was passed March 18, 1874; said act provides, in Paragraphs 217 and 218, as follows: “The provisions of this act do not apply to negotiable instruments made and delivered prior to the passage hereof. In any case not provided for in this act the rules of the law merchant shall govern.” a

It is the opinion of this court that this contention of claimant cannot be reconciled or considered in view of the express limitations in the Court of Claims Act. The legislature clearly indicates the time in which a claim shall be filed in order to be considered by this court. We cannot construe any exception excepting that part of said statute which refers to infants, idiots and lunatics.

Therefore, the only course that this court has to follow is that which is indicated in the Court of Claims Act, which clearly indicates beyond any uncertainty the time which all actions must be filed upon which the court is permitted to take jurisdiction, and for these reasons this case is dismissed.


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    (No. 1099
    Claimant awarded $2,749.92.)
    Electric Household Utilities Corporation, formerly Hurley Machine Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.
    Franchise tax — refund may be awarded for excess' payment. This case is controlled by the decision of the court in case of Altorfor Bros. v. State, supra.

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

delivered the opinion of the court:

The claim in this case is for excess annual franchise taxes paid in the years 1920, 1921 and 1922. The excess amount paid in each of those years was as follows:

In 1920 .................................$6,568.00
In 1921 ................................ 5,234.58

These sums aggregate $11,802.58. In addition thereto, the claimant paid in 1922 the sum of $2,749.92. These figures are not in dispute and represent the excess amount paid under the construction of the- statute as given by the Supreme Court of Illinois- in the case of People, ex rel, Roberts & Schaefer v. Emmerson, 305 Ill. 348. The same questions are involved in this case as were involved in the Altorfer Brothers case and our conclusions with reference to them are the same.

There is, however, an additional defense in this case which did not occur in the Altorfer case and that is the defense of the Statute of Limitations. As to the first two items, aggregating somewhat over $11,000, the money was paid more than five years prior to the filing of the claim. For the reasons which we have heretofore given at length in the case of Booth Fisheries Company, we are constrained to disallow that part of the claim of this claimant. We, however, do allow and award to the claimant the sum of $2,749.92, paid in 1922, which sum we believe the State in equity and good conscience should pay.


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    (No. 1140
    Claimant awarded $3,000.00.)
    Charles Simmons, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

    Equity and good conscience — when award, may be made. Where an employee of the State is engaged in a .hazardous and dangerous employment, and is injured while in the performance of his duty, an award may be made to him, as a matter of equity and good conscience.
    Carl Choisser, for claimant.
    Oscar E. Carlstrom, Attorney General ; Merrill F.Wehmhoff, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

The claimant alleges that he was employed by the. State of Illinois as an attendant at the Jacksonville State Hospital, Jacksonville, Illinois, on and prior to the 2nd day of June, A. D. 1926; that on that day while he was caring for a patient in said hospital, a patient by the name of Palmer seized him by the left hand and bit off the end of the index finger of said hand; that the wound from said bite became infected and as a result of the bite the claimant became infected with syphilis.

The Attorney General raises the question as to whether claimant contracted this disease from the bite of said patient or not. However, there does not appear to be any contradiction but that claimant is infected with said disease and from all the record it appears to the court that.there is no question as to the fact that the patient bit with his teeth and mouth and took off the end of the claimant’s finger and it can well be considered that this was very dangerous and serious to claimant. The claimant’s task was hazardous and dangerous and this disease is of a sad and serious type.

Therefore, following-the policy of this court in former opinions as to the treatment of the employees of the State in the same manner as if they were employees of private corporations and individuals and as a matter of equity and good conscience this court recommends that claimant be allowed $3000.00.


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    (No. 1148
    Claimant awarded $6,463.63.)
    William J. Brennan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

      Contract — State highway. "When State not liable. The State is not liable for loss accruing to a contractor in the construction of a part of its State highway.

      Same — when award may be made. Reimbursement. Where it appears that numerous changes of a different nature occurred in • doing the work under the original contract than was originally contemplated by the parties, which occasioned additional expense in the performance of the contract by claimant, an award may be made to the contractor, on grounds of equity and good conscience, to reimburse him for the additional expense incurred.
    Lee O’Neil Browne, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The declaration filed by claimant in this case alleges that on November 10th, 1924,. he entered into a certain contract of excavation to be done and executed by claimant, with the State of Illinois, represented by one William L. Sackett, then Superintendent of Waterways of the State of Illinois, which contract is set out verbatim in said declaration; that claimant, at the time of, and prior to the execution of said contract and prior to the putting in of his bid for the doing of said work by claimant, was assured by said Sackett that if he, claimant, would put in his bid at the figure which he did put it in at, and if, in the doing of the work it was found that he, claimant, could not do it at that figure, and come out whole, either because of unexpected developments in said work, or because radical changes resulting in additional Avork than appeared at time of entering into the contract, then that he, claimant, should be reimbursed over and above the contract to the extent of the reasonable cost thereof to claimant, plus ten per cent of the usual per cent allowed contractors over and above the cost; and that it was only because of this assurance on the part of said Sackett that claimant made the bid that he did, and entered into said contract; that he began work under said contract in November 1924, and concluded it in June of 1925; that after he began the work, the State, through its said Department of Waterways, did many things, in the course of other construction, which entirely changed the character of the work to be done by claimant, and doubled and even trebled the labor involved; that this result to claimant was admitted by the said Department; and claimant avers that under the conditions presented at the time the bid was made, and the contract was executed, the work to be done did not require an expensive steam hoist, but could be done with “slips” or “wheel-scrapers”; but, by reason of the change of conditions resulting from the action of the Department, the work required the almost constant use of a steam-hoist, the customary rental of which is twenty dollars per day; that by reason of the unanticipated action of the Department relative to other construction, the distance of haulage, and the work of excavation, were both more than doubled in much of the work, and in fact some of the work rendered very difficult of accomplishment at all; that under said contract, in the doing of the work thereunder, he excavated and moved 10,652 yards; that he has been paid on that by the State of Illinois, the sum of $4,793.40, or 45 cents per yard; that this excavation has cost him, figuring his own working time put in, at $6.00 per day, and the steam-hoist rental at $20.00 per day, the sum of $10,131.33; that adding thereto 10% that he, claimant, as contractor, is entitled to, the total he should be paid on said contract, is $11,257.03 and that there is accordingly due and owing to claimant from the State of Illinois, the sum of $6,463.63, and claimant sets out an itemized statement of expenses incurred by him in the progress of said work, which is verified by affidavit.

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

From the evidence in the case it appears that numerous changes occurred to make the work involved in the excavations called for in the contract more difficult and of a different nature than was originally contemplated. Among other things claimant testified as follows: “They let the spillway at the Pecumsaugan and instead of my taking the deposit out of the canal and throwing it up on the bank I had to move it up over the side and then take it over the bank and before the contract was let they let the water go throug'h the canal in the main channel and after the men started to work at the spillway, they dammed the water up and kept it in the canal so that I had to work in a foot of water most of the time instead of dry land and an overhaul besides, — it more than doubled the length of the haul. There were rocks in there that made it impossible to get them out of the water and I had to get chains and chain them to get them out. ’ ’

While we do not concede that there is any legal liability on the part of the State of Illinois to reimburse claimant on account of the loss which he has sustained under the contract in question, we feel that in equity and good conscience, hi should be paid for the expenses actually incurred by him in perfecting the work which he undertook, inasmuch as changes in the natural condition of the earth took place after the contract was entered into, without fault on the part of the claimant, and we accordingly award him the sum of $6,463.63.


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    (No. 1149
    Claimant awarded $5,000.00.)
    Clara Carroll, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

      Lease — when State as lessor not liable. The State as lessor of its property is not liable for injuries sustained by claimant by reason of a defect in the premises occupied by its lessee.
    ■ Equity and good conscience — award may be made. An award may be entered in favor of claimant on grounds of equity and good conscience, although no legal liability exists against the State.
    Lee O ’Neil Browne, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The declaration filed by claimant alleges that she is a married woman living with her family in the city of Ottawa, in LaSalle county, Illinois; that on September 6, 1925, and for a number of years prior thereto, and from thence • down to the present time, the State of Illinois was, and still is, the owner of and possessed of a large tract of land located in said county, consisting of about 1,000 acres, known and called ‘‘Starved Bock State Park”; on and within which, at a certain point there were, are now and have ever been since said defendant owned said territory, certain buildings, to-wit: — a large hotel and annex, a large refreshment pavilion and other buildings and structures, all of which defendant leases to concessioners at certain fixed prices, to operate and carry on, for remuneration, for the accommodation of the general public who travel to said park and patronize said concessions; that it is the duty of defendant to keep said buildings and appurtenances thereto reasonably safe for the use of the general public; that one of said buildings, viz., the refreshment pavilion, is an enclosed building, having within it, among other spaces, an ice cream and refreshment parlor with tables and chairs, at which tables customers are served, which said building has along the front of it on the west or entrance side, a long porch running north and south, which said porch is elevated above the surrounding ground a spaée of six feet, which said porch is reached by a set of steps extending from the ground up to said porch, composed by treads and risers, ten to twelve feet long; that the surface of the ground upon which said pavilion is located, and for a considerable distance surrounding same, was on said day and for a long time prior to said day, covered with a fine hard sifting sand, that, by the action of the wind and otherwise, forms and formed a fine thin film or coating over every adjacent structure, including the steps and porch in question; that on the day in question said steps and treads and said porch were each and every one covered with said film or thin coating of fine sand; that said film rendered same slippery and unsafe for those of the visiting public who had occasion to pass up said steps onto said porch; that defendant should have a substantial, permanent, handrail at each side of said flight of steps and a handrail down the center of said flight of steps, to the end that those of the public who had occasion to pass up and down said steps might take hold of one of said handrails and avoid falling in case of stepping on said film or coating of fine sand; that defendant wholly regardless of its duty in that behalf on date aforesaid, negligently failed and neglected to place any guard or handrails at either side or in the center of said flight of steps and failed to keep said treads of said flight of steps free from said film or coatiug of sand, and by reason thereof, claimant on said day as she was about to descend said flight of steps, and while in the exercise of all due care and caution for her own safety, slipped and was thrown and fell violently to and upon said steps, breaking her knee cap or her right knee completely in two and otherwise seriously injuring her; that by reason thereof she has been compelled to lay out large sums of money endeavoring to be cured of her said injuries, to-wit: — $300.00; that she was prevented from doing her house work for many months, having to hire it done, and was' compelled to move about on crutches till the latter part of the month of March succeeding her injury, and she claims damages in the sum of $5,000.00.

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

"While there is technically no legal liability on the part of the State of Illinois, to reimburse claimant, on account of the injuries received by her as set forth in the declaration, in equity and good conscience,' we award claimant the sum of $5,000.00.


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    (No. 1150
    Claimant awarded $3,006.97.)
    Illinois Traction, Inc., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

    Illinois & Michigan canal — State not liable for damage caused by overflow. The State is not liable for damages caused by overflow of water from the Illinois & Michigan Canal.
    Equity and good conscience — award may be made. Although no legal liability exists against the State, an award may be made in favor of claimant for the amount of its claim.
    Lee O ’Neil Browne, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The declaration filed by claimant, alleges that it is a corporation organized and doing business under the laws of the State of Illinois; that the defendant, the State of Illinois, on to-wit: — September 23, 1926, and for a long number of years prior thereto was the owner and in control, possession and operation of a certain waterway or canal known as the Illinois and Michigan canal, which extended from the city of Joliet on the east to the city of LaSalle on the west, and extended in a general easterly and westerly direction through sections 9 and 16 and 17, in township 33, north, range 3, east of the 3rd P. M., in LaSalle county, Illinois; that said claimant was on said day and for along* time prior thereto, engaged in operating an internrban electric railway company extending from the city of Princeton, in Bureau county, Illinois to the city of Joliet in Will county, Illinois, which said railway extended through said LaSalle county; that said claimant was the owner and in possession of a certain right of way with certain ties, rails, poles and other equipment incident to the operation of an electrically operated interurban railway company, which right of way and equipment was located through said sections 9, 16 and 17, township and range aforesaid, said sections being south of and parallel to the said canal or waterway known as the Illinois and Michigan canal; that it became and was the duty of said defendant in its ownership, control and maintenance of said waterway or canal, to build, keep and maintain the sides or embankments of said waterway or canal in reasonably good condition and repair; that defendant, wholly regardless of its duty in the premises, failed and neglected to build, keep and maintain said sides or embankments of said waterway or canal in reasonable repair and condition to retain and hold water flowing through said canal or waterway, but on the contrary permitted and caused, through its negligence, the said sides or embankments to become weakened and out of repair, so that they could not reasonably hold or retain the water in said waterway or canal; that by reason of the said negligence of said defendant, said south side or embankment of said waterway or canal in said section 9 was broken open and washed away by the water in said waterway or canal, and large and unusual quantities of water were precipitated upon and permitted to flow upon, at great speed and velocity, the right of way of said claimant so located in said section sixteen; that as a result of the negligence of said defendant, said right of way of complainant and said tracks, ties, rails, poles, and other equipment were washed away, destroyed and made worthless, and the business suspended and interrupted; that claimant has expended the sum of $2,318.42 in making necessary repairs and restoring said right of way and property; that the loss in operating revenue amounted to the sum of $688.55, and claimant asks damages in the sum of $5,000.00.

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

While there is no legal liability on the part of the State of Illinois, to reimburse claimant on account of the losses sustained by it as aforesaid, in equity and good conscience we award claimant the sum of $3,006.97.


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    (No. 1152
    Claimant awarded $2,767.34.)
    County of LaSalle, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

    Illinois & Michigan canal — State not liable for damages by overflow of waters from. This case is controlled by the decision of the court in the case of Illinois Traction Co. v. State, supra.

    Lester J. Horan, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This is a claim filed by the county of LaSalle, in the State of Illinois, to recover damages to crops and ditches on the county home, of said LaSalle county, on account of the flooding of lands of claimant and the destruction of crops, etc., by the bursting of the south bank of the Illinois and Michigan canal, at a distance of about three miles west of the city of Ottawa, in said LaSalle county, in the sum of $2,767.34. The declaration filed sets out in an itemized account the losses sustained to the crops and the labor necessary to resow same, and to refill the ditches and gulleys and to reestablish the farm in tillable condition, and further represents that claimant maintains said county home, being a home for the unfortunate and friendless residents of said county, who, through infirmities of body or mind, are compelled to take advantage of the home provided for them by said county, that said home is located about three miles west of the'city of Ottawa, Illinois; that said institution consists of several large buildings equipped for the uses intended and located on a farm of about 300 acres, situated in sections 16 and 17 in township 33, north, range 3, east of the 3rd P. M., in LaSalle county, Illinois; that said claimant actively farms shid lands, raising alfalfa, potatoes, ensilage, field corn and such other crops as are usually raised on a farm, all of the work incident to said farming being done under the direction of a county warden and county home committee, the former elected by the board of supervisors, the latter an appointee of the chairman of the board of supervisors of the county of LaSalle, by and with the consent of said board; that said farm is located immediately south of the south bank of the Illinois and Michigan canal, about thre'e miles west of the city of Ottawa; that through the negligence of the State of Illinois, in allowing the bank of said canal to become defective, on or about September 23, 1926, the south bank of said canal gave way and burst approximately at the east end of the lands owned by claimant and that the flood of waters ran down over and through the lands of claimant, and flooded or drowned out the crop of alfalfa, potatoes, the ensilage planting and considerable portion of the field com then growing on said farm.

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

We do not concede any legal liability on the part of the State of Illinois to reimburse claimant on account of the losses sustained, but on the grounds of equity and good conscience, we make an award which will pay for the losses so sustained, or the sum of $2,767.34.


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    (No. 1154
    Claimant awarded $3,000.00.)
    R. H. Musick, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

    Workmen’s compensation act — award may be made under provisions of. There being no dispute as to the facts and law in this case the court enters an award in favor of claimant for the amount of his claim.
    Orman Ridgely, for claimant.
    Oscar E. Carlstrom, Attorney General; Merrill F. Wehmhoff and Frank B. Eagleton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Claimant states that he received an injury on May 18,1925 in the course of his employment while working as a State Highway patrol officer for the State of Illinois. He alleges that on that day while patrolling on Boute No. 8 on the road between El Paso and Eureka in attempting to pass a farm wagon on this road, his motorcycle struck the wagon and the same wras overturned and his right leg struck and was broken just above the knee joint.

In passing on this case this court would state that if there was any element in this case that would warrant the consideration of the doctrine of reasonable care, it would in the opim ion of the court attract attention of the court.

However it seems the only issue for the consideration of the court is the extent of the injury and the amount that should be allowed, having in mind the rules of the Workmen’s Compensation Act. It would appear in the first instance that the amount claimed for physicians and nurse is rather high, but as there is no question in this record raised as to whether or not the same was reasonable and customary, it will not be discussed here.

The Attorney General comes and files a statement, that, figuring this claim on the basis of the Workmen’s Compensation Law, the claimant is entitled to $3,000.00.

Therefore the court recommends that an award of $3,000.00 be made in this case.


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    (No. 1162
    Claimant awarded $400.00.)
    Moller and Vandenboom Lumber Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

      Contract — when State liable for supplies and material. The State is liable for material and equipment furnished for repairs on its property, at the request of an authorized department of the State.
    Paul G. Weisenhorn, 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 declaration filed by claimant alleges that it is a corporation, located at Quincy, Illinois, organized, existing and doing business under and by virtue of the laws of the State of Illinois; that on September 26th, 1925, at Quincy,' Illinois, the State of Illinois became and was indebted to claimant in the sum of $400.00; that on June 9th, 1925, the Illinois Soldiers ’ and Sailors’ Home, situated in Quincy, Illinois, issued a repair and equipment requisition, 265, which was authorized June 27, 1925; that on journal voucher No. 548 from the Department of Public Welfare to said Illinois Soldiers’ and Sailors’ Home of Quincy, Illinois, appeared entry of special item for repair and equipment listed corncrib, $600.00; that under said requisition is listed an item of $400.00 for lumber to apply on said corncrib listed on above mentioned journal voucher 548, from the Department of Public Welfare, State of Illinois; that under said requisition certain lumber and roofing, an itemized statement of which is attached and made part of said declaration, was sold and delivered by said Holler and Vandenboom Lumber Company of Quincy, Illinois, to said Illinois Soldiers’ and Sailors’ Home; that no part of this account has been paid and that there is now due and owing to claimant said sum of $400.00.

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

An affidavit of Daniel P. Wild, Chief Clerk of the Illinois Soldiers’ and Sailors’ Home, furnished to .Hon. Leslie Small, Director of the Department of Purchases and Construction, states that this is a good and valid claim and the Illinois Soldiers’ and Sailors’ Home will not contest the claim.

We accordingly award claimant the sum of $400.00.


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    (No. 1165
    Claim denied.)
    John Lynville Roundtree, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

    Military service — when State not liable. It must be shown by claimant that he was a member of the Illinois National Guard, and in active service, at the time he sustained the injury complained of, otherwise the State is not liable.
    J. W. Templeman, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank E. Eagleton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is an action brought by claimant to recover $5,000.00, for an injury he claims to have received while he was a member of Troop B, 106th Cavalry of Illinois National Guard. The allegation shows the claimant was thrown upon the pommel of his saddle while riding with his troop. The defendant comes and claims that claimant was not a member of the said Illinois National Guard at the time he alleges the injury took place. The claimant sets forth that he was injured in the service in August, 1922. Defendant claims that he was discharged on April 6th, 1922.

It is the opinion of the court from the records in this case and after closely examining the evidence and arguments of counsel in the case that the showing is not sufficient to satisfy the court that the claimant was a member of the Illinois National Guard at the time of his injury. Therefore this claim is dismissed.


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    (No. 1167
    Claimant awarded $1,359.00.)
    Joseph Bryan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

    Illinois & Michigan canal — State not liable for overflow of water from. This case is controlled by the decision' of the court in the case of Illinois Traction Co. v. State, supra.

    Mills, Richardson & Helffrich, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The declaration filed in this case alleges that on September 23, 1926, claimant was and from thence hitherto has been and still is, lawfully possessed of about sixty acres of land, located in Section 9, Township 33, North, Range 3, East of the 3rd P. M., in LaSalle county, Illinois, lying- on the two path side of the Illinois and Michigan canal and located immediately south thereof; that plaintiff was possessed of said real estate by virtue of a lease entered into between him and the Ottawa Silica Company, of Ottawa, Illinois, as tenant thereon for a term of years at an annual rental of $10.00 per acre; that said' real estate is tilled and farmed, there being-raised thereon field corn, alfalfa and such other crops as are usually grown and raised on farms; that the State of Illinois was possessed of, owned, operated, maintained and continued a certain canal or waterway, known as- the Illinois and Michigan canal, along the north side or line of said real estate, which canal or waterway is of the width of fifty feet and of the length of 100 miles; that defendant wrongfully, negligently and carelessly permitted and allowed the banks of said canal or waterway to become unsafe, weak and defective, and wrongfully, negligently and carelessly failed to keep and maintain said banks of said canal or waterway in a safe and proper condition; that by reason thereof, on to-wit: September 23, 1926, the south bank of said canal or waterway, known and described as the Illinois and Michigan canal, gave way, burst and opened at a point approximately 500 feet east of the west line of said premises of claimant and thereby admitted and caused the flow of large quantities of water, which naturally flowed in and through said canal, over, upon and across and into the said lands and premises of the said claimant and there remained, and thereby greatly injured, damaged and destroyed the growing crop of field corn and alfalfa of claimant, to-wit: Thirty acres of field corn and four acres of alfalfa of the value of $1,239.00. Attached to said declaration, and made a part thereof is an itemized statement of the grain and crops for which damages are claimed.

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

While there is no legal liability on the part of the State of Illinois to reimburse claimant on account of the losses above enumerated, in equity and good conscience we feel that he should receive some remuneration for the loss of a large percentage of his year’s crops, which of course, comprise to a large extent the income from which a tenant farmer earns his livelihood, and we accordingly award claimant the sum of $1,359.00.


text:
    (No. 1172
    Claimant awarded $250.00.)
    Joyce-Watkins Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

    Franchise tax — Claimant is entitled to a refund of the franchise tax overpaid which is in excess of the amount legally due the State.
    Fisher, Boyden, Kales & Bell, for claimant.
    Oscar E. Carlstrom, Attorney General ; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This is a claim to recover $250.00, franchise fee paid in excess of the legal fee due, through error in computation, on increased capital stock for the year beginning July 1, 1926. The declaration states that the snm lawfully due and payable by said corporation on July 1, 1926, as franchise tax, computed at the rate of five cents on each $100.00, of the old capital stock of $1,000,000.00, as provided in Section 105 of the General Corporation Act, was $500.00; that on said date said claimant paid to the Secretary of State of the State of Illinois, the sum of $750.00, being the amount called for by the statement for franchise tax then due and payable, which sum was in excess of the amount legally due.

A statement of the Attorney General of the State of Illinois, rendered at the request .of Louis L. Emmerson, Secretary of State of the State of Illinois, consents to the award of $250.00.

We accordingly award claimant the amount of their claim, or $250.00.


text:
    (No. 1183
    Claimant awarded $411.76.)
    Frank Channing, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

      Quarantine — when State not liable for animals destroyed. The State is not liable for the slaughter of cattle affected with contagious or infectious disease, unless claimant complies with the provisions of the statute providing for such compensation.
    Equity and good conscience — award may be made to reimburse. Where claimant is without fault on his part in the shipment of diseased cattle, an award upon equitable grounds may be made to reimburse him for the difference between the amount he received for the cattle as salvage and the appraised value thereof.
    Schuyler, Ettleson & Weinfeld, for claimant.
    Oscar E. Carlstrom, Attorney General ; Merrill F. Wehmhoff, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This is a claim filed by Frank Channing to recover the sum of $411.76, under paragraph 94, chapter 8, Smith-Hurd’s Illinois Revised statutes, 1925, which provides remuneration to the owner for cattle destroyed pursuant to the provisions of an act for the eradication of bovine tuberculosis. The declaration alleges that on December 18, 1925, at Hampshire, Illinois, claimant was the sole owner of a herd of 27 cattle, which at claimant’s request was given a tuberculin test by the Division of Animal Industry of the Department of Agriculture of the State of Illinois; that on said date, December 18, 1925, the herd so tested reacted; that on January 8, 1926, claimant ordered from the Chicago, Milwaukee & St. Paul Railroad Company’s agent at Hampshire, Illinois, one 40 foot car for the purpose of shipping said 27 reactors immediately to the city of Chicago; that said car was not furnished to him until January 14, 1926; that claimant had said cattle ready for shipment on January 14, 1926, and was ready and willing to ship same, but was unable to do so because said railroad company refused to move said car until January 18, 1926; that said cattle were appraised and slaughtered on January 20, 1926; that the appraisal value was the sum of $2,225.00; that the cattle were sold as salvage for the sum of $989.71; that of the balance of $1,235.29 under the statute, if this claim is allowable, the State of Illinois is liable in the sum of $411.76.

The claim was submitted to Honorable S. J. Stanard, Director of the Department of Agriculture, for investigation and report, who reports that the cattle were not shipped within the thirty days allowed by statute and hence the claim could not be allowed by his department.

Looking at this claim from an equitable point of view, we believe that claimant should he reimbursed. The delay in the shipment of the cattle was due to no fault of his. We accordingly award claimant the sum of $411.76.


text:
    (No. 1190
    Claimant awarded $1,025.00.)
    Frank H. Downs, et al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.
    Property damage — when award will he made. There being no dispute as to the facts or law in this case, the court enters an award in favor of claimant.
    Thomas A. Murphy, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This is a claim for damages to property belonging to the claimants as trustees of Local No. 473 of the United Mine Workers of America, located at LaSalle, Illinois.

The facts in this case were investigated by J. M. McCoy, chief clerk of the Division of Highways of the Department of Public Works and Buildings and from the report of J. M. McCoy, we find that the property described in the statement of claim was damaged to the extent of $1,025.00.

We therefore award the claimant the sum of $1,025.00.


text:
    (No. 1196
    Claimant awarded $54.00.)
    Thomas R. Crabb, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1927.

      Reimbursement — when award will he made. State employee. There being no dispute as to the facts in this case, and no objection by the State, the court enters an award in favor of claimant to reimburse him for moneys expended in being cured of injuries sustained by him, while in the discharge of his duty.
    Thomas R. Crabb, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank B. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The declaration filed in this case alleges that on July 21, 1926, and for a long time prior thereto, Thomas B. Crabb was an employe of the State of Illinois, by appointment of Louis L. Emmerson, Secretary of State of the State of Illinois, as automobile investigator; that his duties under such employment included among other things, a general supervision and regulation of the motor vehicle traffic on the system of hard roads constructed by the State of Illinois; that in the performance of his duties he used a motorcycle, furnished by the State of Illinois; that pursuant to his duties as such automobile investigator, on July 21, 1926, between 10:15 p. m., and 10:30 p. m., he was proceeding from Joliet, Illinois, to Lockport, Illinois; and in exercising all due care and caution for his own safety, he collided with a Ford coupe, driven by one J. L. Gage of Marseilles, Illinois, at the corner of Collins Street, and Meeker Avenue, Joliet, Illinois; that by reason of said collision, he was thrown from the motorcycle upon which he was riding upon and against a telephone pole and was thereby then and there bruised, injured and wounded and suffered injuries to his head, ankle and knee and claimant became and was sick, sore, lame and disordered and so remained for a long space of time, to-wit: From the 21st day of July to the 17th day of August 1926, both inclusive; that during all of said time he suffered great pain and was hindered and prevented from attending to and transacting his affairs and business, and was forced to and did then and there lay out divers sums of money, amounting to, to-wit, $54.00, in endeavoring to be cured of his said wounds and bruises, and he makes a claim for said sum of $54.00.

A letter from Louis L. Emmerson, Secretary of State, states that he has investigated the facts set out in the declaration in this case, and that said facts are correctly set out and recommends that said claim be allowed..

Therefore we award claimant the sum of $54.00.


text:
    (No. 1201
    Claimant awarded $1,575.00.)
    Bessie Gilbert Smith and Robert E. Smith, Claimant, vs. State of Illinois, Respondent.

      Opinion, filed May 26, 1927.

    Illinois & Michigan canal— when award may' be made. This case is controlled by the decision of the court, in Illinois Traction Go. v. State, supra.

    Lee O’Neil Browne, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank R. Eagleton, Assistant Attorney general, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The declaration in this case shows that the claimants were the owners of property situated in Section 13, Township 33 North, Range 1, East of the Third Principal Meridian, LaSalle county, Illinois, located one hundred feet south of the Illinois-Michigan canal, approximately three miles due east of the city of LaSalle.

On or about the 8th day of August, 1924, the south bank of the Illinois & Michigan canal broke at a point about two hundred feet from the residence of this affiant and the property above described and that the water therefrom gushed from the break in the bank covering all property belonging to the affiant’s wife above stated and continued to flow over said property for four days in a depth of approximately four feet -and that the influx of water from the canal caused damage to said property.

William F. Mulvihill, Superintendent of Waterways, 'made the following statement:

I have examined the foregoing claim and believing the same to be just and true, the Division of Waterways, Department of Purchases and Construction will not oppose the allowance of the same for the amount claimed,

which is $1,575.00.

The Attorney General submits this claim to the court and recommends that an award be made in said cause.

We therefore allow said claim in the amount of $1,575.00.


text:
    No. 1086
    Claimant awarded $27,515.79.)
    The R. F. Conway Company, Claimant, vs. State of Illinois, Respondent.
    Opinion filed June 6, 1927.

      Contract — when State liable. State bond issue. Where claimant under a combination bid for certain sections of the State Bond Issue Route No. 4, is awarded the contract by the State, and afterwards it is compelled to perform the contracts separately, resulting in damages to it, it is entitled to recover the difference between the combination bid and the next lowest and best bid for the work completed under the separate contracts.
    Snapp, Heise and Snapp, for claimant.
    Oscar E. Carlstrom, Attorney General ; William E. Trautmann, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

The facts in this case are disclosed in the following stipulation duly executed by the claimant by its attorneys, Snapp, Heise and Snapp, and the defendants, the State of Illinois, by Oscar E. Carlstrom, Attorney General, the said stipulation being in figures and words as follows, to-wit:

Stipulation.

“Whereas claimants made a combination bid upon sections 28, 29, and 430 of State Bond Issue Route No. 4 upon an agreement that all of said three sections were to be completed in one season and were awarded- contracts upon sections 28 and 29 immediately upon the combined bid and were to be awarded the contract for section 430, upon the combined bid, within ten days thereafter and as soon'-as all the right of way was secured, but owing to the delay caused by the local authorities of the village of Lyons, in the county of Cook, the contract for section 430 could not be and was not awarded until late in the fall, but was awarded on the combined bid. This delay prevented claimant from completing the work on section 430 in one season, to the damage of the • claimant claimed by it in the sum of $123,522.05, in accordance with' the proofs now taken by deposition herein.

And whereas, the claimant bases its right to recover upon the fact that it was compelled to perform said contracts separately and the lowest and best bid for the separate performance of said contract was in the sum of $664,085.79, and the combined bid of said claimant for the performance of said contracts together was in the amount of $636,570.00, the difference between said two amounts being the sum of $27,515.79.

“And whereas, the State of Illinois is unwilling to pay to the claimant the amount of damages claimed by it but is willing to concede to said claimant the difference between the combination bid of said claimant for the work on said three sections and the next lowest and best bids for said work which were upon separate contracts, it is, therefore, agreed and stipulated between the parties that an award for the benefit of said claimant be entered herein in the amount of $27,515.79.”

Therefore this court upon said stipulation and the facts set out therein, recommends that said claimant be allowed the sum of $27,515.79.


author: Raucci, J.

text:
    (No. 81-CC-0053
    Dora B. Larson, Administrator of the Estate of Victoria J. Larson, Deceased, Claimant, v. The State of Illinois, Respondent.

      Order filed September 15, 1997.

    Coryn, Walker & Meehan (Gerald J. Meehan, of counsel), for Claimant.
    James E. Ryan, Attorney General (Deborah L. Barnes, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, J.

This cause coming to be heard on the Respondents motion to dismiss and supplemental memorandum thereto, the Court being fully advised in the premises, the Court finds:

1. The instant claim was originally filed in 1980. The Court ordered this claim placed on general continuance in 1985. This claim was removed from general continuance in 1995, and comes now before the Court upon the Respondents motion to dismiss, together with Respondents supplemental memorandum to motion to dismiss.

2. The Claimant is the administrator of the estate of Victoria Larson, deceased. The Claimant’s complaint alleges that the Respondent is liable for damages resulting from Scott Darnell’s forcible rape and murder of the decedent, Victoria Larson. Darnell, a minor, had been paroled two weeks prior to the brutal attack on Victoria Larson.

3. The Claimant alleges that this Court has jurisdiction of her claims arising under the Wrongful Death Act (740 ILCS 180/0.01 et seq) and the Survival Act (330 ILCS 100/0.01 et seq) pursuant to section 8(a) of the Court of Claims Act, and over her claims alleging liability in tort pursuant to section 8(d) of the Court of Claims Act. 705 ILCS 505/8(a), (d).

4. At the time of the alleged occurrence, the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat., ch. 85, par. 4 — 106) provided that:

“Neither a local public entity nor a public employee is hable for:
(a) Any injury resulting from determining to parole or release a prisoner, to revoke his parole or release, or the terms and conditions of his parole.
(b) Any injury inflicted by an escaped or escaping prisoner.” Currently codified as 745 ILCS 10/4 — 106.

5. We have previously held that section 4 — 106 of the Local Governmental and Governmental Employees Tort Immunity Act applies equally to units of local government and to the State:

“The State’s liability certainly is no greater, and its immunity is certainly no less, under existing law, than that of local governmental units which are creatures of the State. To hold the State liable for any errors in judgment by its officials, in the exercise of their discretionary decision making powers and duties, would be contrary to the public policy established by the General Assembly. This is particularly true of a decision to parole or release a prisoner, “one of the most difficult, sensitive and complicated decisions that must be made in the criminal justice system.” Flaim v. State (1975), 30 Ill. Ct. Cl. 635, 639.

We have reexamined the Flaim decision and now overrule it. The Local Governmental and Governmental Employees Tort Immunity Act by its express terms does not include the State of Illinois or its employees. Additionally, the Court of Claims Act (705 ILCS 505/1 et seq) expressly provides that the Court of Claims has jurisdiction to consider “[A]ll claims against the State for damages sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit * 8 (705 ILCS 505/8(d).) For diese reasons, Flaim is overruled.

6. The Respondent also urges that the State is immune from liability for injuries arising from tire determination of its officers and employees to release or parole a prisoner. The instant Claimants injuries were a result of the States alleged negligence in paroling a mentally disturbed prisoner.

7. In Larson v. Darnell (1983), 113 Ill. App. 3d 975, 448 N.E.2d 249, a case brought by Claimant against the individual officials who released the offender who raped and murdered Claimants decedent, Victoria J. Larson, a twelve-year old minor, the Court stated:

“It is well established that a public official is immune from individual liability for the performance of discretionary duties undertaken in good faith. (Mora v. State (1977), 68 Ill. 2d 223, 12 Ill. Dec. 161, 369 N.E.2d 868; People ex rel Scott v. Briceland (1976), 65 Ill. 2d 485, 3 Ill. Dec. 739, 359 N.E.2d 149.) The circuit court entered a finding that the action of Franzen in releasing Darnell and the action of Stanbary in supervising Darnell, were, from a factual standpoint ministerial, but also determined that the conduct of both men was discretionary as a matter of law. We believe these two findings are conflicting, because by definition, a purely ministerial act is one which a person performs on a given state of facts in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own discretion upon tire propriety of the act being done. We believe the circuit court was correct when it found that the actions of Stanbary and Franzen required both to exercise their discretion or judgment, and we believe the court was incorrect when it found that the actions of both men were ministerial. We agree with the defendants, who assert in their brief that under the States Juvenile Release Program, the decisions respecting whom to parole, when to parole, and where to place the parolee and how to help the ex-offender adjust into a free society necessarily involve discretion and balancing the rights of the ex-offender against the rights of the community into which he is placed. Hence, we conclude that Franzen and Stanbary are immune from suit for the official acts complained of by the plaintiff Estate, even if, as alleged, the acts were negligently performed, because in the performance of those acts it was necessary to exercise judgment or discretion. Mora v. State; People ex rel Scott v. Briceland.
# # #
Public officials immunity is conditioned on the good faith exercise of discretion and extends to acts undertaken in the exercise of that discretion not resulting from corrupt or malicious motives. (Thiele v. Kennedy (1974), 18 Ill. App. 3d 465, 309 N.E.2d 394.) The complaint here in question sets forth no allegation of corrupt motives, malicious motives, or the intentional misuse of power.”

Gayle Franzen was then the Director of the Illinois Department of Corrections, and James E. Stanbary was Darnells parole officer.

8. When a court of competent jurisdiction finds State employees to be immune and dismisses a suit, the State is immune under the doctrine of respondeat superior. The issue of immunity is res judicata and requires dismissal of this claim.

It is therefore ordered, adjudged and decreed that the motion to dismiss is granted, and this claim is dismissed and forever barred.