text:
    C. J. Stewart, Public Trustee and Executor of the Last Will of John William Day, Deceased, v. State of Illinois.

      Opinion filed April 18, 1913.

    Inheritance Tax — Dodge & Ensign, ex., v. State ante followed. This claim is based upon, a similar state of facts as that of Dodge & Ensign, executors, etc., Mary H. Dodge, deceased, v. State, supra, and the law as announced by the Court in the decision of that claim governs this claim.
    Archibald Cattell, for Claimant.
    W. H. Stead, Attorney General, for State.
   The claim in this case is for a refund of inheritance tax claimed to have been erroneously paid. The claim in question discloses that the deceased died prior to July 1, 1909; that at the time of his death he was not a resident of the State of Illinois, and did not own any real estate in this State, at the time of his death, but that at the time of his death said decedent was the owner of certain shares of stock in Illinois corporations; that the corporations refused to transfer the stock without the consent of the inheritance tax attorney; that an appraiser was appointed by the county judge of Cook County, Illinois, who appraised the value of the stock so held, fixed the amount of the tax, and made his report to the county judge of Cook County, who entered an order approving the report and fixing the tax; that no appeal was taken from the order of the county judge in fixing the amount of the inheritance tax, as provided by law; that the inheritance tax was paid to the county treasurer of Cook County; that demands were made upon the county treasurer of Cook County, and upon the State Treasurer of Illinois, for a refund of the tax so paid.

The claimant filed his petition before the county judge, who appointed the inheritance tax appraiser, praying for a vacation of the order, through the execution of which the inheritance tax in question was levied and collected, which petition was denied.

Claimant alleges, that “the county court was wholly without jurisdiction, and the county judge wholly without jurisdiction, in taking any of the steps which resulted in the imposition of said tax and its collection;” that “the proceedings of the county court were wholly void.” The grounds for claimant’s contentions are that the deceased was a non-resident of the State of Illinois, at the time of his death, did not have any real estate in Illinois, and therefore the county judge of Cook County, Illinois, had no jurisdiction to fix an inheritance tax.

The State of Illinois, by the Attorney General, has demurred to the claim. This Court is asked to review the proceedings in the county court and the order of the county judge, and hold that the county court had no jurisdiction. Claimant has not followed the plain provisions of the law provided for the reviewing of the order of the county judge by an appeal to the county court. The order of the county judge consequently stands unquestioned, except by this application to this Court, and this Court is asked to assume the power conferred upon the county court under the statute in question, and reverse the order of the county judge. "We are of the opinion, that this Court has no such jurisdiction conferred upon it, and that sc far as this Court is concerned, the inheritance tax in question is a legal tax and was not erroneously paid, and continues to be a legal tax, until such time as an appeal is prosecuted according to the statute in question and the order of the county judge reversed by a court of competent jurisdiction. This Court cannot review the order of the county judge. The statute in question provides for the manner of reviewing the order of the county judge, and it is essential and necessary that any one desiring a refund of inheritance taxes claimed to have been paid erroneously, must first have the inheritance tax declared erroneous, by some court of this State in accordance with the inheritance tax law, and inasmuch, as the claimant in this case has wholly neglected to take the steps provided by this law, we are compelled to dismiss his claim without a consideration of the merits of the same.

For the reasons above stated, the claim is therefore dismissed, but inasmuch, as there are certain questions involved in this claim, which claimant may desire to submit for decision to some other court, we direct that the rejection of this claim by this Court shall not conclude the claimant.


source: Caselaw Access Project

license: Public Domain

text:
    N. Ellen Stockton and Emma S. Turpin, Executors of the Last Will of Sarah Harvey, Deceased, v. State of Illinois.

      Opinion filed April 18, 1913.

    Inheritance Tax — Dodge & Ensign, ex., v. State ante followed. This claim is based upon a similar state of facts as that of Dodge £ Ensign, executors, etc., Mary H. Dodge, deceased, v. State, supra, and the law as announced by the Court in the decision of that claim governs this claim.
    Archibald Cattell, for Claimant.
    W. H. Stead, Attorney General, for State.
   The claim in this case is for a refund of inheritance tax claimed to have been erroneously paid. The claim in question discloses that the deceased died prior to July 1, 1909; that at the time of her death she was not a resident of the State of Illinois, and did not own any real estate in this State at the time of her death, but that at the time of her death said decedent was the owner of certain shares of stock in Illinois corporations; that the corporations refused to transfer the stock without the consent of the inheritance tax attorney; that an appraiser was appointed by the county judge of Cook County, Illinois, who appraised the value of the stock so held, fixed the amount of the tax, and made his report to the county judge of Cook County, who entered an order approving the report and fixing the tax; that no appeal was taken from the order of the county judge in fixing the amount of the inheritance tax, as provided by law; that the inheritance tax was paid to the county treasurer of Cook County; that demands were made upon the county treasurer of Cook County, and upon the State Treasurer of Illinois, for a refund of the tax so paid.

The claimants filed their petition before the county judge, who appointed the inheritance tax appraiser, praying for a vacation of the order, through the execution of which the inheritance tax in question was levied and collected, which petition was denied.

Claimants allege, that “the county court was wholly without jurisdiction, and the county judge wholly without jurisdiction, in taking any of the steps which resulted in the imposition of said tax and its collection;” that “the proceedings of the county court were wholly void.” The grounds for claimants’ contentions are that the deceased was a non-resident of the State of Illinois, at the time of her death, did not have any real estate in Illinois, and therefore the county judge of Cook County, Illinois, had no jurisdiction to fix an inheritance tax.

The State of Illinois, by the Attorney General, has demurred to the claim. This Court is asked to review the proceedings in the county court and the order of the county judge, and hold that the county court had no jurisdiction. Claimants have not followed the plain provisions of the law provided for the reviewing of the order of the county judge by an appeal to the county court. The order of the county judge consequently stands unquestioned, except by this application to this Court, and this Court is asked to assume the power conferred upon the county court under the statute in question, and reverse the order of the county judge. We are of the opinion, that this Court has no such jurisdiction conferred upon it, and that so far as this Court is concerned, the inheritance tax in question is a legal tax and was not erroneously paid, and continues to be a legal tax, until such time as an appeal is prosecuted according to the statute in question and the order of the county judge reversed by a court of competent jurisdiction. This Court cannot review the order of the county judge. The statute in question provides for the manner of reviewing the order of the county judge, and it is essential and necessary that any one desiring a refund of inheritance taxes claimed to have been paid erroneously, must first have the inheritance tax declared erroneous, by some court of this State in accordance with the inheritance tax law, and inasmuch, as the claimants in this case have wholly neglected to take the steps provided by this law, we are compelled to dismiss their claim without a consideration of the merits of the same.

For the reasons above stated, the claim is therefore dismissed, but inasmuch as there are certain questions involved in this claim, which claimants may desire to submit for decision to some other court, we direct that the rejection of this claim by this Court shall not conclude the claimants.


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    United States Trust Company of New York, Executor of the Last Will of Emma A. Tillotson, and George L. Shearer, its duly authorized Agent and Attorney in this behalf, v. State of Illinois.

      Opinion filed April 18, 1913.

    Inheritance Tax — Dodge & Ensign, ex., v. State ante followed. This claim is based upon a similar state of facts as that of Dodge & Ensign, executors, etc., Mary H. Dodge, deceased, v. State, supra, and the law as announced by the Court in the decision of that claim governs this claim.
    Archibald Cattell, for Claimant.
    W. H. Stead, Attorney General, for State.
   The claim in this case is for a refund of inheritance tax claimed to have been erroneously paid. The claim in question discloses that the deceased died prior to July 1, 1909; that at the time of her death she was not a resident of the State of Illinois, and did not own any real estate in this State, at the time of her death, but that at the time of her death said decedent was the owner of certain shares of stock in Illinois corporations; that the corporations refused to transfer the stock without the consent of the inheritance tax attorney; that an appraiser was appointed by the county judge of Cook County, Illinois, who appraised the value of the stock so held, fixed the amount of the tax, and made his report to the county judge of Cook County, who entered an order approving the report and fixing the tax; that no appeal was taken from the order of the county judge in fixing the amount of the inheritance tax, as provided by law; that the inheritance tax was paid to the county treasurer of Cook County; that demands were made upon the county treasurer of Cook County, and upon the State Treasurer of Illinois, for a refund of the tax so paid.

The claimant filed its petition before the county judge, who appointed the inheritance tax appraiser, praying for a vacation of the order, through the execution of which the inheritance tax in question was levied and collected, which petition was denied.

Claimant alleges, that “the county court was wholly without jurisdiction, and the county judge wholly without jurisdiction, in taking any of the steps which resulted in the imposition of said tax and its collection;” that “the proceedings of the county court were wholly void.” The grounds for claimant’s contentions are that the deceased was a non-resident of the State of Illinois, at the time of her death, did not have any real estate in Illinois, and therefore the county judge of Cook County, Illinois, had no jurisdiction to fix an inheritance tax.

The State of Illinois, by the Attorney General, has demurred to the claim. This Court is asked to review the proceedings in the county court and the order of the county judge, and hold that the county court had no jurisdiction. Claimant has not followed the plain provisions of the law provided for the reviewing of the order of the county judge by an appeal to the county court. The order of the county judge consequently stands unquestioned, except by this application to this Court, and this Court is asked to assume the power conferred upon the county court under the statute in question, and reverse the order of the county judge. We are of the opinion, that this Court has no such jurisdiction conferred upon it, and that so far as this Court is concerned, the inheritance tax in question is a legal tax and was not erroneously paid, and continues to be a legal tax, until such time as an appeal is prosecuted according to the statute in question and the order of the county judge reversed by a court of competent jurisdiction. This Court cannot review the order of the county judge. The statute in question provides for the manner of reviewing the order of the county judge, and it is essential and necessary that any one desiring a refund of inheritance taxes claimed to have been paid erroneously, must first have the inheritance tax declared erroneous, by some .court of this State in accordance with the inheritance tax law, and inasmuch, as the claimant in this case has wholly neglected to take the steps provided by this law, we are compelled to dismiss its claim without a consideration of the merits of the same.

For the reasons above stated, the claim is therefore dismissed, but inasmuch, as there are certain questions involved in this claim, which claimant may desire to submit for decision to some other court, we direct that the rejection of this claim by this Court shall not conclude the claimant.


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    Alva E. Belmont, Ellen P. Kellogg and John Prentice Kellogg, Executors, Etc., of the Last Will of Armida Vogel Smith, Deceased, v. State of Illinois.

      Opinion filed April 18, 1913.

    . 1. Inheeitance Tax — to obtain a refund an appeal must be taken. Where an inheritance tax has been fixed by order of the county judge and the time for an appeal to the county court L^.s passed, the county judge cannot afterwards entertain a petition to set aside the order fixing the tax.
    2. Covet of Claims — will not review another court’s jurisdiction. The Court of Claims will not pass upon the question of another court’s jurisdiction.
    Archibald Cattell, for Claimant.
    W. H. Stead, Attorney General, for State.
   The claim in this case is for a refund of inheritance tax claimed to have been erroneously paid. The claim in question discloses that the deceased died prior to July 1, 1909; that at the time of his death he was not a resident of the State of Illinois, and did not own any real estate in this State, at the time of his death, but that at the time of his death said decedent was the owner of certain shares of stock in Illinois corporations; that the corporations refused to transfer the stock without the consent of the inheritance tax attorney; that an appraiser was appointed by the county judge of Cook County, Illinois, who appraised the value of the stock so held, fixed the amount of the tax, and made his report to the county judge of Cook County, who entered an order approving the report and fixing the tax; that no appeal was taken from the order of the county judge in fixing the amount of the inheritance tax, as provided by law; that the inheritance tax was paid to the county treasurer of Cook County; that demands were made upon the county treasurer of Cook County, and upon the State Treasurer of Illinois, for a refund of the tax so paid.

That claimants filed their petition before the county judge, who appointed the inheritance tax appraiser, praying for a vacation of the order, through the execution of which the inheritance tax in question was levied and collected, which petition was denied.

Claimants allege, that “the county court was wholly without jurisdiction, and the county judge wholly without jurisdiction, in taking any of the steps which resulted in the imposition of said tax and its collection;” that “the proceedings of the county court were wholly void.” The grounds for claimants’ contentions are that the deceased was a non-resident of the State of Illinois, at the time of his death, did not have any real estate in Illinois, and therefore the county judge of Cook County, Illinois, had! no jurisdiction to fix an inheritance tax.

The State of Illinois, by the Attorney General, has demurred to. the claim. This Court is asked to review the proceedings in the county court and the order of the county judge, and hold that the county court had no jurisdiction. Claimants have not followed the plain provisions of the law provided for the reviewing of the order of the county judge by an appeal to the county court. The order of the county judge consequently stands unquestioned, except by this application to this Court, and this Court is asked to assume the power conferred upon the county court under the statute in question, and reverse the order of the county judge. We are of the opinion, that this Court has no such jurisdiction conferred upon it, and that so far as this Court is concerned, the inheritance tax in question is a legal tax and was not erroneously paid, and continues to be a legal tax, until such time as an appeal is prosecuted according to the statute in question and the order of the county judge reversed by a court of competent jurisdiction. This Court cannot review the order of the county judge. The statute in question provides for the maimer of reviewing the order of the county judge, and it is essential and necessary that any one desiring a refund of inheritance.taxes claimed to have been paid erroneously, must first have the inheritance tax declared erroneous, by some court of this State in accordance with the inheritance tax law, and inasmuch, as the claimants in this case have wholly neglected to take the steps provided by this law, we are compelled to dismiss their claim without a consideration of the merits of the same.

For the reasons above stated, the claim is therefore dismissed, but inasmuch, as there are certain questions involved in this claim, which claimants may desire to submit for decision to some other court, we direct that the rejection of this claim by this Court shall not conclude the claimants.


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    Gustav Mattern, Executor under the Last Will and Testament of Frank C. Bush, Deceased, for the use of Frank C. Rathje, v. State of Illinois.

      Opinion filed April 18, 1913.

    1. Inheritance Tax — when no refund will he awarded. Claimant contends that the property was appraised at $4,670.12, whereas it should have been appraised at $1,340.24. No appeal was taken from the order of the county judge fixing the tax. Held, that claimant is not entitled to an award.
    2. Court op Claims — not a court of review. The Court of Claims does not sit as a court of review, to pass upon the decisions of other courts.
    3. Order op County Judge — how reviewed. The statute provides for the manner of reviewing the order of the county judge in inheritance tax matters.
    Adolph. H. 'Wesemann, for Claimant.
    W. H. Stead, Attorney General, for State.
   The claim filed in this case is for a refund of inheritance tax paid under the inheritance tax law of the State of Illinois, and is based upon the condition, that certain property devised and bequeathed to Minna Lischewski and Martha Prost was appraised at the value of forty-six hundred seventy and 12-100 ($4,670.12) dollars, by the appraiser appointed in said estate by the county judge of Cook County, Illinois, and afterwards approved by the county judge, whereas, the claimant alleges the said appraised valuation should have been fixed at the sum of six hundred seventy and 12-100 ($670.12) dollars each.

The claim filed fails to show that any appeal was taken from the order of the county judge in fixing the tax based upon the above valuation. It does appear, however, in the records, that an appeal was not taken, as provided by the inheritance tax law. The order of the county judge consequently stands unquestioned, except by this application to this Court, and this Court is asked to assume the power conferred upon the county court under the statute in question, and reverse the order of the county judge. We are of the opinion, that this Court has no such jurisdiction conferred upon it, and that so far as this Court is concerned, the inheritance tax in question is a legal tax and was not erroneously paid, and continues to be a legal tax, until such time as an appeal is prosecuted according to the statute in question and the order of the county judge reversed by a court of competent jurisdiction. This Court cannot review the order 'of the county judge. The statute in question provides for the manner of reviewing the order of the county judge, and it is essential and necessary that any one desiring a refund of inheritance taxes claimed to have been paid erroneously, must first have the inheritance tax declared erroneous, by some court in accordance with the inheritance tax law, and inasmuch, as the claimant in this case has wholly neglected to take the steps provided by this law, we are compelled to dismiss his claim without a consideration of the merits of the same.

For the reasons above stated the claim is therefore dismissed.


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    Edward F. Adams, Executor of the Last Will of Benjamin Adams, Deceased, v. State of Illinois.

      Opinion filed April 18, 1913.

    1. Inheritance Tax — to secure refund must obtain favorable decision. In order to entitle a claimant to a refund of inheritance taxes erroneously paid into the State treasury, the claimant must have obtained a final decision in his favor in some court.
    2. Court of Claims- — not a court of review. The Court of Claims does not sit as a court of review to pass upon the decisions of any other court. .
    3. Order of County Judge — how reviewed. The statute with reference to inheritance taxes provides the manner in which an order of the county judge may he reviewed.
    Archibald Cattell, for Claimant.
    W. H. Stead, Attorney General, for State.
   The claim in this case is for a refund of inheritance tax claimed to have been erroneously paid. The claim in question discloses that the deceased died prior to July 1, 1909; that at the time of his death he was not a resident of the State of Illinois, and did not own any real estate in this State, at the time of his death, but that at the time of his death said decedent was the owner of certain shares of stock in Illinois corporations; that the corporations refused to transfer the stock without the consent of the inheritance tax attorney; that an appraiser was appointed by the county judge of Cook County, Illinois, who appraised the value of the stock so held, fixed the amount of the tax, and made his report to the county judge of Cook County, who entered an order approving the report and fixing the tax; that no appeal was taken from the order of the county judge in fixing the amount of the inheritance tax, as provided by law; that, the inheritance tax was paid to the county treasurer of Cook County; that demands were made upon the county treasurer of Cook County, and upon the State Treasurer of Illinois, for a refund of the tax so paid.

The claimant filed his petition before the county judge, who appointed the inheritance tax appraiser, praying for a vacation of the order, through the execution of which the inheritance tax in question was levied and collected, which petition was denied.

Claimant alleges, that “the county court was wholly without jurisdiction, and the county judge wholly without jurisdiction, in taking any of the steps which resulted in the imposition of said tax and its collection;” that “the proceedings of the county court were wholly void.” The grounds for claimant’s contentions are that the deceased was a non-resident of the State of Illinois, at the time of his death, did not have any real estate in Illinois, and therefore the county judge of Cook County, Illinois, had no jurisdiction to fix an inheritance tax.

The State of Illinois, by the Attorney General, has demurred to the claim. This Court is asked to review the proceedings in the county court and the order of the county judge, and hold that the county court had no jurisdiction. Claimant has not followed the plain provisions of the law provided for the reviewing of the order of the county judge by an appeal to the county court. The order of the county judge consequently stands unquestioned, except by this application to this Court, and this Court is asked to assume the power conferred upon the county court under the statute in question, and reverse the order of the county judge. We are of the opinion, that this Court has no such jurisdiction conferred upon it, and that so far as this Court is concerned, the inheritance tax in question is a legal tax and was not erroneously paid, and continues to be a legal tax, until such time as an appeal is prosecuted according to the statute in question and the order of the county judge reversed by a court of competent jurisdiction. This Court cannot review the order of the county, judge. The statute in question provides for the manner of reviewing the order of the county judge, and it is essential and necessary that any one desiring a refund of inheritance taxes claimed to have been paid erroneously, must first have the inheritance tax declared erroneous, by some court of this State in accordance with the inheritance tax law, and inasmuch, as the claimant in this case has wholly neglected to take the steps provided by this law, we are compelled to dismiss his claim without a consideration of the merits of the same.

For the reasons above stated, the claim is therefore dismissed, but inasmuch, as there are certain questions involved in this claim, which claimant may desire to submit for decision to some other court, we direct that the rejection of this claim by this Court shall not conclude the claimant.


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    Emma E. Smith, Eugene C. Wilson, and Edward N. Wilson v. State of Illinois.

      Opinion filed November 10, 1913.

    Inheritance Tax — Court will not make award unless appeal is taken and favorable decision obtained. Unless an appeal is prosecuted by a claimant, seeking a refund of an inheritance fax erroneously paid, and a decision obtained in favor of such claimant, this Court will not mate an award for a refund of the tax erroneously paid.
    Joseph. L. Shaw, for Claimants.

      W. H. Stead, Attorney General, for State.
   Claimants have paid an inheritance tax in proceedings lately pending in Henry County. They claim to have overpaid, in that, they have not had the benefit of some deductions which would reduce the amount of their taxable inheritance and consequently the amount of their tax. Some of these deductions consist of claims against the decedent’s estate allowed prior and some subsequent to the inheritanqe tax appraisement. The amount of the main item, the executor’s commissions, had not been fixed by the Court at the time of the appraisement, although it eould easily have been estimated. The tax was paid immediately and within six months of the decedent’s death, in order to take advantage of the five per cent statutory discount. The estate having been closed, a demand is now made for a rebate on the basis of the deductions claimed. The claim appears to be meritorious but defective, for no appeal was taken to the county court from the finding of the county judge, as provided by law, and no reason appears why this has not been done. Claimants for a refund of overpaid inheritance taxes must exhaust all remedies expressly provided by statute, before coming to this Court. The public convenience suggests it and the law requires it. The claim will therefore be denied.


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    E. H. Titus, Wilson H. Tucker and Samuel Ordway, Executors of the Last Will and Testament of Edward P. Hatch, Deceased, v. State of Illinois.

      Opinion filed November 10, 1913.

    1. Inheritance Tax — when award will be made. Where a final decision has been rendered by a court of competent jurisdiction in favor of a claimant seeking a refund of inheritance taxes erroneously paid, this Court will order a refund of the amount erroneously received by the State.
    Elmer E. Wagner, for Claimants.
    P. J. Lucey, Attorney General, and Arthur E. Eoy, Assistant Attorney General, for State.
   The record in this case shows that Edward P. Hatch, a resident of New York City, died on September 20, 1909, and among the assets of his estate were one thousand shares of the common stock of the Chicago and Great Western Railway Company. On February 16, 1911, the county judge of Cook County, on the recommendation of the appraiser theretofore appointed, fixed the inheritance tax in this State, in said estate, based on an appraisal of twenty-eight ($28.00) dollars per share as the value of the stock. It appears further, that the appraiser appraised and valued the stock as stock of the Chicago and Great Western Railroad Company instead of the Chicago & Great Western Railway Company, and at the time of the appraisal, the shares of stock of the former company were worth twenty-eight ($28.00) dollars per share and the stock of the latter company was worth but four ($4.00) dollars per share. In consequence of this appraisal, the value of the stock was fixed at twenty-eight thousand ($28,000.00) dollars, when it should have been fixed at four thousand ($4,000.00) dollars. Thereafter, for the purpose of securing the consent of the county treasurer to the transfer of the stock, the executors deposited with him a sum of money, and he applied a portion of the amount deposited, one hundred thirty dollars and fourteen cents ($130.14), to the payment of the tax as found by the county judge, and he then, out of said tax, paid to the State Treasurer, one hundred twenty-seven dollars andf fifty-four cents ($127.54).

The claimants appealed from the finding of the county judge to the county court, and on September 1, 1911, the county court found that the said shares were erroneously appraised at twenty-eight thousand ($28,000.00) dollars, by the appraiser, and found further, that the value was four thousand ($4,000.00) dollars, instead of said twenty-eight thousand ($28,000.00) dollars, in consequence of which, all the several estates growing out of the estate of Edward P. Hatch, deceased, were exempt from taxation, and the court ordered, that the order fixing the tax entered February 16, 1911, be set aside and vacated, and that no tax be fixed as against the several estates. This is a final order of the county court from which no appeal has been taken.

This Court has heretofore held, that it has jurisdiction to pass upon claims of this character, and when, as in the case of Griffith v. State of Illinois, in which an opinion was filed in the October Term, 1910, there has been a final adjudication by a court of competent jurisdiction, that.a tax has been erroneously paid, this Court will order a refund of the amount received by the State.

In this case it appears that claimants have done all that the law requires of them, to secure the repayment of money paid by them. There is a final adjudication in the county court, the executors made demand! of both the State Treasurer and county treasurer for a refund under section 10 of the statute, and did not secure same and have started suit in this Court within the time required by law.

Under such state of facts, the Court finds that the claimants are entitled to repayment out of the State treasury of the money received', and it is accordingly ordered, that the claim be allowed in the sum of one hundred twenty-^seven dollars and fifty-four cents ($127.54).

Judge McMurdy took no part in the decision of this case.


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    John P. Bradford v. State of Illinois.

      Opinion filed May 22, 1914.

      Armories — lease of. Court reviews the evidence and rejects claim.
    Bert W. Adsit, for Claimant.
    P. J. Lueey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   This is an action brought by claimant to recover three hundred forty-eight ($348) dollars, for money expended in procuring and preparing plans and specifications for an armory to be erected by claimant, in the city of Pontiac, Illinois; the same to be used by Company “F” Third Infantry, Illinois National Guard.

It appears that Major Strawn, of Pontiac, had a conversation with the claimant in which it was suggested, that it might be a good thing to have a new armory erected at Pontiac.

Claimant advised Major Strawn in substance, that if the necessary arrangements could be made with the proper authorities of the State of Illinois, that he would be willing to erect an armory for their use. Claimant visited different cities for the purpose of securing suggestions as to the kind of a building he was going to erect, and incurred some expense in so doing; he also laid out about three hundred ($300) dollars in having plans and specifications drafted.

Some time prior to the eighth day of March, 1909, Major Strawn had several interviews with Adjutant General Scott, and was informed by him, that if claimant would erect the armory, he would execute a lease with him on behalf of the State of Illinois.

Later, on the eighth day of March, 1909, General Scott made and delivered a written agreement with claimant, in which it was stated, that he would enter into a lease -with claimant, “on behalf of the State of Illinois, for rental of an armory at Pontiac, upon completion of the same, in the sum of one thousand ($1,000) dollars per annum,” and among other things it provided, that the building was to be ready for occupancy about August 1, 1909.

Shortly after this written proposition was delivered to claimant, General Scott died, and it was suggested to claimant by Major Strawn, that he should not proceed with the erection of said building until an Adjutant General was appointed to succeed General Scott.

Some timé after January 1, 1910, Frank S. Dickson was appointed Adjutant General, to fill the vacancy caused by the death of General Scott, and it appears that there was some misunderstanding between him and the claimant relative to the terms of said proposed lease, and it further appears that General Dickson informed claimant, that he would not enter into a lease for the proposed armory.

Claimant did not have any contract with General Scott prior to his visit with him at Springfield, on March 8, 1909, when he received the written proposal for a lease, and it is clearly shown, that at that time he had procured the plans and specifications and submitted them to General Scott, at their meeting as an inducement to get a contract from him for the building when completed, and that said plans were prepared prior to March 8,1909, and there is nothing in the evidence to show that General Scott’s proposal caused claimant to entail any additional expense.

It is contended by claimant, that the proposal of General Scott to enter into a lease for the armory when completed, was such an agreement as would entitle him to compensation for expenses incurred in securing the plans and specifications for said building.

Notwithstanding, that the claimant received the written proposal from General Scott, he did not proceed with the erection of the building and saw fit to wait until such time as some other person should succeed General Scott. It would appear that claimant accepted this proposition with a thorough understanding that he was not bound thereby, and claimant could not be held) to answer in damages had he refused to erect the armory as contemplated, even though the State insisted that it should be erected and the proposed contract carried out.

As far as we can determine from all the evidence submitted in this case, it appears that this was a strictly business proposition in which the claimant was interested, and the expense he incurred in securing plans and specifications was only incident to his attempt to secure what he deemed a profitable investment.

Had General Scott refused to deliver to claimant the written proposal of March 8,1909, could it be said that claimant in this case would be entitled to recover from the State the amount of expenditures he now seeks to recover? We think not.

The written proposal of General Scott did not occasion the expenditures herein claimed, and the claimant deemed it advisable not to proceed' with the erection of the building, after learning of General Scott’s death.

From a fair consideration of all the evidence, we are of the opinion, that the State is not liable for the expenditures made by claimant in his endeavor to induce the State to enter into a contract with him.

This claim should not be allowed and the same is accordingly rejected.


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    Firemen’s Insurance Company of Newark, New Jersey v. State of Illinois.

      Opinion filed May 22, 1914.

    1. Insurance — foreign fire companies required to pay two per cent. Foreign Fire Insurance Companies are required to pay two per cent of the amount of their gross premiums collected in this State, into the State treasury, less the aggregate amount of fire department and local taxes paid by them.
    2. Mistake op Fact — money paid under may be recovered. Money paid under a mistake of fact may be recovered, but not so if paid under a misapprehension as to what the law on the subject really is.
    Bates, Harding, Edgerton & Bates, for Claimant:
    A payment made under a mistake of fact may be recovered back.
    22 Am. & Eng. Enc. of Law, 2d Ed., 621; 30 Cyc., 1316; International Bank v. Bartalott, 11 Ill. App., 620; Prickett v. Madison County, 14 Ill. App., 454; Devine v. Edwards, 87 Ill., 177; McLean County Bank v. Mitchell, 88 Ill., 52; Wolf v. Beaird, 123 Ill., 585.
    Money paid under a bona fide forgetfulness of a fact is paid under a mistake of fact.

      Simms v. Vick, 151 N. C., 78, 18 A. & E. Ann. Cas., 699, 24 L. R. A. (N. S.). 517; Kelley v. Solari, 9 M. & W., 54; Guild v. Baldridge, 2 Swan., 295; Lewellen v. Garrett, 58 Ind., 442.
    The fact that the party had in his possession the means of knowledge does not preclude him from recovery.

      Simms v. Vick, supra; Allen v. Mayer, etc., New York, 4 E. D. Smith, 404.
    Section 65, of chapter 134 of the Laws of 1902 of the State of New Jersey, reads:
    “Every insurance company, other than life, of another state or foreign country, transacting business in this State, shall on or before the fifteenth day of February of each year make to the Commissioner of banking and insurance a report, signed and sworn to by an officer of the company, or by its United States manager if a company of a foreign country, stating the gross amount of premiums received by such company, and by each agent thereof, on business of the said company in this state for the preceding calendar year, including all premiums received from other companies for re-insurance of them, and the amount of premiums returned to the insured during said year on policies canceled, and the amount of premiums paid for re-insurance in other insurance companies of other states or foreign countries, authorized to do business in this state, and shall pay to said Commissioner, on or before the fifteenth day of February, a tax of two per centum upon such gross amount of premiums, less such returned premiums and such re-insurance premiums paid, which tax shall be in lieu of all other franchise taxes imposed upon said corporation : Provided, any taxes hereafter paid to the treasurer of any firemen’s relief association of this state, by fire insurance companies of other states and foreign countries and their agents, in accordance with the provisions of the Act entitled, ‘An Act to facilitate the collection from fire insurance companies not organized under the laws of this state, but doing business herein, and from agents and brokers, of certain premiums for the benevolent funds of the several duly incorporated firemen’s relief associations in this state,’ approved May second, one thousand eight hundred and eighty-five, shall be considered a part of the tax payable by such companies under this section, and nothing herein contained shall be construed to repeal, alter or change the provisions of the said recited Act.”
    Paragraph 77, of chapter 73, Hurd’s Revised Statutes of Illinois, 1913, page 1406, provides:
    “Whenever the existing or future laws of any state of the United States, or any other kingdom or country, shall require of insurance companies incorporated by or organized under the laws of this State, and having agencies in such other state, kingdom or country, any deposit or securities in such state, kingdom or country, for the protection of policy holders or otherwise, of any payment for taxes, fines, penalties, certificates of authority, license fees or otherwise, greater than the amount required for such purposes from similar companies of other states by the then existing laws of this state, then aud in every such ease all companies of such states, establishing or having heretofore established an agency or agencies in the state, shall be and are hereby required to make the same deposit, for a like purpose, with the Auditor of this State, and to pay to the Auditor, for taxes, fines, penalties, certificates of authority, license fees, and otherwise, an amount equal to the amount of such charges and payments imposed by the laws of such state upon the companies of this State and the agents thereof: Provided, that the payment required of such foreign companies shall, in no ease, he less than required hy this Act.”
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State:
    A mistake of fact is not ground for recovery of money paid thereunder, if the person paying the same has knowledge, or means of knowledge, of all the facts connected therewith.

      Elston v. City of Chicago, 40 Ill., 514; Walser v. Bd. of Education, 160 id., 272; Hudson v. People ex rel., 188 id., 103; Otis v. People ex rel., 196 id., 546; Town of Lyons v. Cook, 9 Ill. App., 543.
    Money paid voluntarily under a mistake of law, but with knowledge of all the facts, cannot be recovered.

      Building Assn. v. City of Chicago, 61 Ill., 439; Swanston v. Ijams, 63 id., 165; Yates v. Royal Ins. Co., 200 id., 202; Home Life Ins. Co. of N. Y. v. State, Court of Claims, opinion filed Dee. 19, 1908; Illinois Glass Co. v. Chicago Telephone Co., 234 Ill., 535, 544.
   Claimant, the Firemen’s Insurance Company of Newark, New Jersey, is a corporation organized and existihg under the laws of the state of New Jersey, and authorized by its charter to engage in said state and elsewhere in the business of insurance; and it has been engaged in such business under a license in the State of Illinois, for many years; and as an insurance company organized under the laws of another state it is taxed in the State of Illinois, a sum of two per Cent of the gross premiums received in the State of Illinois, less the ággregate amount of fire department and local taxes paid by it in the various towns, cities and counties in the State of Illinois; that in the month of February, 1912, it made its return to the Insurance Department of the State of Illinois, of its gross premium receipts in Illinois for the year ending December 31, 1911, amounting to the sum of $181,142.08; that the two per cent tax upon the said premium receipts amounted to the sum of $3,622.84; that it returned with its said statement of gross premiums a voucher showing the payment by it of fire department and local taxes during the year 1911, amounting to the sum of $1,965.99, and that it paid to Fred! W. Potter, then Superintendent of Insurance of the State of Illinois, the difference between the said two per cent on its gross premium receipts and the amount of fire department and local taxes paid, to-wit: the sum of $1,656.85, and in addition to that, the fees required by law for filing the annual .statement amounting to $20.00, and for .advertising annual statement amounting to $80.00, in all the sum of $1,756.85, the receipt of which sum was duly acknowledged by the Superintendent of Insurance by voucher.

The claimant in returning to said Fred W. Potter, then Superintendent of Insurance, its voucher for fire department and local taxes paid by it during the year 1911, to be deducted from the two per cent tax on its gross premium receipts in the State of Illinois, through an oversight or a mistake on the part of its cashier, neglected to return a certain voucher issued by the city collector of the city of Chicago, showing the payment by it on September 5, 1911, of the sum of $1,484.68, the fire insurance tax imposed on it by and under the terms of an ordinance of the city of Chicago, passed February 3, 1896, said sum being the two per cent tax levied on the business of claimant in the city of Chicago, for the year ending June 30, 1911, and that by its failure to include said voucher in the credits to which it was entitled, in estimating a tax to be paid to the State of Illinois for the year 1911, it paid to the State of Illinois the sum of $1,484.68 more than was in fact due from it; and that since it discovered the error or mistake, it took the matter up .with Fred W. Potter, then Superintendent of Insurance, andl stated to him the facts in regard to the mistake occurring in the omission of said credit, and asked to be reimbursed said amount and was advised by Fred W. Potter, then Superintendent of Insurance, to return said voucher with its tax statement for the year 1912, at which time it would be allowed its credits against the taxes for that year.

It made up its tax statement for the year 1912, and after deducting its two per cent of its gross premium receipts in the State of Illinois on account of fire department and local taxes during the year 1912, there was not a sufficient sum due the State of Illinois, from it to reimburse it in the sum of $1,484.68, at which time it was advised by Fred W. Potter, then Superintendent of Insurance, to file its claim in this Court, and ask to be awarded said sum by reason of said clerical error or mistake of facts.

We are aware that since the Supreme Court of Illinois decided in Raymond v. Hartford Fire Insurance Company, 196 Ill., 329, that an Act approved April 19, 1889, entitled, “An Act Providing for a Tax on Gross Premium Receipts of Insurance Companies,and Associations Other than Life,” was unconstitutional and void, there has been on the statute books of Illinois no statute providing for the taxation of the premium receipts of insurance companies organized under the laws of other states and countries, and therefore such companies are taxed under the provisions of the reciprocal laws of the State of Illinois, applicable to fire insurance companies; in which law we fail to see any dispute, whereby it is necessary for us to pass or place a construction on, as it seems, that both the claimant and the State have agreed, that the statute of New Jersey, and the statute of Illinois, as quoted in claimant’s brief, govern the payment of the tax to the State.

We are of the opinion, that the only question in this case to be passed upon by this Court, is the question whether or not claimant is entitled to recover from the State of Illinois, the said sum of $1,484.68 by reason of a clerical error or a mistake. From the evidence” submitted by claimant, which is undisputed, it appears that it had some time prior to the payment of this tax established an agency in Chicago, in charge of Montgomery & Funkhouser, which had during the existence of such agency, always paid the fire tax to the city of Chicago, and mailed their voucher to the claimant’s western department, which gave them credit for the amount in their account with the company, and that the western department of the Firemen’s Insurance Company, always took the agent’s vouchers and in making out the report to the Superintendent of Insurance of the State of Illinois, mailed the voucher with the report and asked for and received a reduction for such amount, and that the agent’s voucher for the payment of fire taxes of various cities was always kept in a file for that purpose, hut that some time prior to the making of the report by the western department of claimant to the Superintendent of Insurance of this State, the agency of Montgomery & Funkhouser had ceased doing business, and the western department of the Firemen’s Insurance Company had taken over the affairs so far as it could, and had paid the fire tax to the city of Chicago, through some of its officers, and in maMng up a statement for the State of Illinois six months later, its cashier, in going through the agent’s accounts for the taxation items, failed to include in his report this particular item.

It is contended by counsel for claimant, that the failure to mail this voucher covering this tax to the Superintendent of Insurance for the year 1911, is clearly a clerical error or a mistake of fact, and that by reason of it being a mistake of fact, it should be awarded the sum of $1,484.68, and supports its claim with numerous decisions of courts of this and other states.

Counsel for claimant also claims, that by reason of this Court having equity jurisdiction from an equitable standpoint, it is entitled to an award, citing Trickle v. State of Illinois, 1 Court of Claims Reports, 103, wherein this Court said: “It is enjoined by the Act creating the Commisison, to determine claims according to the principles of equity and justice, except when otherwise provided by the laws of the State.”

The State of Illinois insists, that the claimant is not entitled to recover for the reason, that the money in question was paid by said company into the State treasury voluntarily, and that it had means of knowledge at its command of all the credits to which it was entitled, and having once paid such money into the State treasury voluntarily and without compulsion and with such means of knowledge at its command, it is not entitled to recover the same.

We have examined the authorities submitted by counsel, and applying the same as we see them to the facts in this case, which disclose that this money was paid'through forgetfulness or mistake of fact, and not through mistake of law, we are of the opinion that claimant is entitled to an award.

This case differs from the case of the Home Life Insurance Company v. State of Illinois, heretofore decided by this Court, in that, the claimant in that case paid the taxes voluntarily under a mistake of law, and was therefore not entitled to recover according to the holdings of the courts of this State.

In the case of the Illinois Glass Company v. The Chicago Telephone Company, 234 Ill., 544, the Court said that a tax voluntarily paid, where there was no mistake of fact, could not lie recovered back, which we believe is a true rule of law, but from the facts in this case we believe that the failure to send the voucher in question with the annual report to the superintendent of the Insurance Department of the State, was clearly a mistake of fact, caused by forgetfulness, and that the claimants are entitled to an award in the sum of one thousand four hundred eighty-four and 68-100 ($1,484.68) dollars, and the same is therefore accordingly awarded.


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    Frank O. Johnson v. State of Illinois.

      Opinion filed May 22, 1914.

    1. Negligence — when State liable for. Claimant’s property, located across the street from the stone quarry at the Illinois State Penitentiary, was damaged hy blasting in the quarry. Held, that claimant is entitled to an award on account of such damage to his property.
    2. Jurisdiction — statute as to this class of claims. In this claim, the Court’s jurisdiction to hear “all claims against the State for taking or damaging private property by the State for public purposes in the construction or for use of any State institution,” is called in question.
    3. Damages — measure of. Where the injury is permanent, only one recovery may be had, and the measure of damages is the depreciation in value, occasioned and to be occasioned by the maintenance of the nuisance. (C. & E. I. R. R. Co. v. Loeb, 118 Ill., 203), cited by the Court.
    4. Eminent Domain — compensation for property taken by. Private property cannot be taken or damaged for public use without just compensation.
    Lagger & Blatt, and Brown, Hay & Hand, for Claimant:
    The Court of Claims Act contemplates compensation not only for the physical taking of property, but for damages resulting from public use.
    “The measure of damages which is to be adopted is the same as though a direct proceeding by condemnation had been brought to determine the amount of damages.”

      Aldis v. Union Elevated R. R. Co., 203 Ill., 567.
    “If plaintiff was entitled to recover at all, as he was confined to a single action, he ought to recover whatever damage he has sustained by the operation of the plant — both present arid future damages.”

      Hyde Park Light Co. v. Porter, 167 Ill., 276.
    “The allegation of injury to the market value was an allegation of permanent injury. Depreciation of market value is not measure of damages for temporary injury which may be removed or abated.”

      North Shore St. Ry. Co. v. Payne, 192 Ill., 239.

      P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   Claimant is a resident and property owner in Joliet, and claims to have sustained damage to Ms residence because of the maintenance and operation by the State as a part of the penitentiary, of a stone quarry, immediately adjacent to Ms residence. In the conducting of the stone quarry the State has resorted to blasting operations, as a result of which, stones were cast upon claimant’s property and Ms building sustained damage, all 'of wMch he claims causes depreciation in the value of Ms property.

In tMs case, the Court is relieved of part of the duties ordinarily imposed upon it, in that, the question of liability of the State for damage has been agreed upon by the parties and the State admits its liability. Both claimant and the State seem to have taken the evidence on the theory, that the measure of damage was depreciation in the value of the property, and not physical depreciation, but the State now defends on the question of the measure of damage, and argues, that the true measure is the physical depreciation sustained within two years of the time of the filing of this claim.

TMs Court, by the law to wMch it owes its existence, is called upon to determine “all claims against the State for taMng or damaging private property for the State, for public purposes in the construction or for use of any State institution.” We have satisfied ourselves, aside from the admissions of counsel, that this statute is directly applicable to the matter before us, in that, this is a claim for the damaging of private property for public purposes, for use of the penitentiary at Joliet, which is a State institution.

Claimant made a contract to purchase the property m question, of October 17, 1902, and acquired title by deed on May 1, 1906. He paid three hundred ($300.00) dollars for the lot, and erected a house and other improvements in 1906, at an expenditure aggregating about twenty-five hundred ($2,500.00) dollars. At the time claimant purchased his property, there had been a quarry on the penitentiary site, that was not being operated, and actual active operations in the quarry did not commence, until after claimant had started to build his house. There has been blasting going on since 1907, and it has continued at intervals down to the time of the filing of the claim. Stones have been thrown through the roof of the house, cistern cracked, foundation of the house cracked, shingles loosened, windows blown out and broken, plastering cracked, and claimant has been put to many inconveniences.

Claimant’s property, it is apparent from the record, is not most advantageously situated for residential purposes. In addition to the quarry complained of, which is to the south of his residence, the steel mills lie to the west, and interurban and local street car lines are in the front of his house, and according to his testimony, there is a great deal of noise, independent of the noise in the quarry. Claimant himself apparently lays his claim to damage to the fact, that the stones from the blasts caused actual physical damage, and states that the work in the quarry is going away from his residence, and that, if it were not prosecuted at the time of taking the testimony that, in his opinion, his property would be as good for residence purposes as it was before the blasting commenced. He stated further, that the penitentiary people have done practically all of the repairing that has been done. It is apparent also from the evidence, that in addition to the blasting in the quarry, that some place on the premises seems to be used as a garbage crematory, without any particular regard being had for the disposition of the odor of the burning garbage, although this is not specifically set forth in the declaration as an element of damage.

Considerable testimony has been offered on the question >of depreciation in value of the property, and on the question of damages. Very little of j.£ would pass as expert testimony, and it is very largely made up of the testimony of friends and neighbors of claimant, or people interested to a greater or less degree in the ultimate outcome of this case, and in the application of the principles as to the question of damages in this particular case.

On the question of the measure of damages, a similar question has been passed upon by the Commission of Claims, in Fairbanks v. State, 1 C. of C. R. 1, wherein the Commission, on page 4, stated:

“We think the rule well established, that where the obstruction, as in this case, was lawful, it could not be treated asa nuisance, for that would imply the right to have it abated. Evidently there could be but one satisfaction for the injury sustained, and that would be for the permanent injury to the land caused by the obstruction of the river.”

In that case is cited the case of Chicago & Eastern Illinois R. R. Co v. Loeb, 118 Ill., 203, which is a well considered and leading case on the principles herein involved.

Adopting the language of that case as applicable to the case at bar, we hold, “that in an action brought for deterioration in the value of real estate, from a nuisance of a permanent character, all damages for past and future injury to the property may be recovered, and that one recovery in such action will be a bar to all future actions for the same cause.” In this case, as in the last cited case, we might also say: “The cause of damage here is not a nuisance proper,” though the line of reasoning, whether or not it be actually a nuisance in law, is the same. We are not prepared to hold, that the operation of a stone quarry as an adjunct of the penitentiary is in law, a nuisance, yet, following the language of that opinion, “we think it to be within the true intent and meaning of this provision as to damage (the constitutional provision that private property shall not be taken or damaged for public use, without just compensation), that there should be but One proceeding for recovery of damage, in which there should be recovery for the entire damage, past, present and future; that it should be similarly regarded, in this respect, as the provision in regard to the taking of property, where there is but one proceeding, and an assessment of compensation and damages once for all.”

In view of the fact that this stone quarry was not being operated as such and in the manner complained of at the time claimant bought his property and made his improvements, but on the contrary all the damage sustained by reason of the operation of the quarry was sustained since such time, there must be a recovery by claimant in this case and the measure of damages is the depreciation, if any, in the fair cash market value of the premises.

Witnesses for claimant, fix upon varying figures as their estimates of damages, and differ as to the reasons for their estimates of the damages as fixed by them. Two witnesses place the damage at fifty per cent of the original value, due to the fact, that there is a quarry, and the fact that stones are thrown on claimant’s property. Claimant himself, includes in his estimate of damage, the fact that property in the vicinity is not improving as regards price, because of the location of the quarry. On the part of the State, one witness, a real estate agent, placed the value of the property, at twenty-three hundred ($2,300.00) dollars, and estimates the damage at not more than three hundred ($300.00) to five hundred ($500.00) dollars, and another witness for the State places the damage at five hundred ($500.00) dollars. Both witnesses for the State are real estate men, and claimant’s witnesses are his neighbors and friends or people interested in the result of this case.

We have carefully examined the evidence on the question of damage, and conclude, that claimant should have a recovery from the State of Illinois, as his just damage, in the sum of seven hundred fifty ($750.00) dollars.


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    Walter O. Jones, by Grace E. Jones, his next friend, v. State of Illinois.

      Opinion filed May 22, 1914.

    1. Non-liability of State — Sfaie in absence of statute not liable for injuries to those employed by it. Claimant, a student at the University of Illinois, was employed in various positions, and while working in the department of fire protection was injured. Held, that no liability attached.
    2. Public Policy — of State. The State’s exemption from liability does not find its justification solely from considerations of public policy. (City of Chicago v. Williams, 182 Ill., 135; Minear v. State Board of Agriculture, 259 Ill., 549, cited by the Court.)
    3. Governmental Function — University of Illinois. The State in conducting the University of Illinois exercises a governmental function, and does not conduct a business enterprise.
    4. Safety Appliance Act — not applicable to State. The Safety Appliance Act has no application to the State in its relations to its employees.
    Robert E. Fitzgerald, for Claimant:
    The doctrine that the State is exempt from liability for the torts and negligence of its servants, finds justification solely from considerations of public policy.

      Holmes v. State, I. C. of C. R., 324.
    The master owes to the employee the duty of guarding and protecting machinery, as provided in section 1 of Act of 1909, Session Laws, 1909, p. 202.

      Streator v. Western Wheeled Scraper Company, 254 Ill., 244.
    The neglect of the duty imposed by statute for the protection of an employee, is actionable negligence, providing the injury is caused thereby. It is negligence per se.

      Western Anthracite Coal Company v. Beaver, 192 Ill., 333.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State:
    The doctrine of respondeat superior does not apply to the State, and the State, in the absence of a statute providing therefor, is not liable in damages for the negligence of its officers, agents or employees.

      Leidel v. State, C. of C., Oct. Sess., 1906; Jorgenson v. State, Oct. Sess., 1911; People v. Brown, 67 Ill., 435, 438; Minear v. State Board of Agriculture, 259 Ill., 549.
   ' Claimant was a student at the University of Illinois, and was employed in various jobs about the university. On Deoember 29, 1912, while in the employ of the Superintendent of Buildings, in the department of fire protection, he was directed* to watch a motor and belt in the engineering building. There is a conflict of ■testimony between claimant and the superintendent, as to instructions given by the superintendent, but in .our ultimate view of the case, this is immaterial. Suffice it to say, claimant had never had anything to do with the particular machinery upon which he received injury. At the time of the accident in question, he had taken a piece of waste to catch some oil that was dripping in the vicinity of certain cog-wheels, and the waste was caught in the cogs and one of Ms hands drawn in, as to which one, the record is silent. As a .result of this accident, he sustained injuries which caused the amputation of the first finger at the second joint, the second finger at the second joint, and the mashing of the nail and first joint of the third finger. Claimant, since the accident, is able to draw and write with facility as evidenced by the diagram made by him and introduced in evidence. In addition to these injuries, claimant suffered a nervous breakdown and lost the time of a full college year.

The evidence is to the effect, that the cogs were defectively guarded, and there is a question in the minds of the Court, as to whether or not there was any guard over these particular wheels wMch caused the injury.

Claimant’s counsel urges, that the exemption of the State from liability finds its justification solely from considerations of public policy, and cites Holmes v. State of Illinois, 1 C. of C. R., where, at page 331, the Court said:

“The doctrine (exempting the State from such liability) finds its justification in considerations of public policy.”

We do not understand, that this Court then intended to hold, that the basis upon which this principle of law is founded, is public policy. Nor, do we so hold. It is the theory of the common law, repeatedly expressed, as stated in City of Chicago v. Williams, 182 Ill., 135, (cited in the Holmes case as authority):

“Where acts are done by the officers of towns and cities in their public capacity, in the discharge of duties imposed by the law for the public welfare, no private •action lies, unless the right to bring it is expressly conferred.”

In Minear v. State Board of Agriculture, 259 Ill., 549, the Supreme Court of this State has said:

“If, as we hold, the State Board of Agriculture is an agency of the State, in the exercise of governmental functions, it is not liable, under the common law, for injuries claimed to have been sustained as a result of its negligence.”

There is no statute which makes the State liable to respond in damages in a case, such as the one before us.

There is no evidence in the record as to what the functions of the University of Illinois are, nor is there any allegation in the declaration. Counsel for claimant argues, that it is within the province of this Court, with a knowledge of the purposes for which the university was instituted, to determine whether or not, in the conduct thereof, the State was exercising a governmental function or conducting a business enterprise for profit. By reference to the statutes, and with that knowledge with which counsel credits the Court, the Court concludes, that the university is conducted by the State in the exercise of its governmental function.

Claimant has failed to prove negligence on the part of the State in any degree, that even approximates a preponderance of evidence, and, in like measure, his proof as to his own exercise of care is lacking.

We cannot agree with claimant, that the public policy of the State, with reference to its relations with its employees, is any different now, than it was at the time the jHolmes case was decided. The Safety Appliance Act has no application to the State in its relations to its employees.

It is the judgment of this Court, that this claim be, and the same is hereby rejected'.


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    LeRoy D. Kellogg v. State of Illinois.

      Opinion filed May 22, 1914.

    Inheritance Tax — when refund will he awarded. In this claim the inheritance tax was fixed by the county judge of Cook County, and an appeal prayed to the county court, pending which appeal, the tax so fixed was paid under protest, after which the county court reduced the tax as fixed by the county judge. The Court awards claimant the difference between the tax as fixed by the county judge and as reduced by the county court.
    D. J. Normoyle, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   The claimant in this case seeks to recover for certain inheritance tax moneys paid under protest, in connection with the estate of Milo Gr. Kellogg, deceased, which said estate was administered upon in Cook County, Illinois.

The county judge of said county made an order in said estate fixing the inheritance tax at thirty-one thousand one hundred thirty-five and 60-100 ($31,135.60) dollars, from which order an appeal was prayed and prosecuted by the claimant and other heirs to the county court of said county, as was authorized by statute. Pending the appeal, the amount of tax so levied was paid under protest to the county treasurer of Cook County, in order to obtain the statutory discount. The county court made a reduction of six hundred fifty-eight and 33-100 ($658.33) dollars, and it is for this amount, that claimant, on his account and as assignee of the other heirs, asks an award.

The record in this ease discloses, that the claimant did everything essential to protect himself against the excessive levy by the county judge, and we are of the opinion, that claimant is entitled to recover the amount so rebated by the county court, less two (2%) per cent which, was deducted by the county treasurer, in remitting to the State Treasurer, conformably to the statute.

We, therefore, make an award in favor of the claimant, for six hundred forty-five and 17-100 ($645.17) dollars.


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    James Kinney v. State of Illinois.

      Opinion filed May 22, 1914.

    Pees and Salaries — sum appropriated limits amount of, in absence of other statute. Claimant acted as clerk for the State Board of Equalization, and worked more than the usual number of hours per day. The statute allows $5.00 per day, and the proof shows he worked 153 days and was allowed $825.00 by an appropriation made by the legislature. Held, that no recovery could be had.
    Adolph Bernard, for Claimant.
    P. J. Lucey, Attorney General, and Arthur E. Eoy, Assistant Attorney General, for State.
   Claimant was employed as a clerk of the State Board of Equalization, during the last five months of the year 1912. He spent practically all of his time doing clerical work for the Committee on Assessment of Railroad Property, and in the course of his employment worked more hours per day, than is Usual in this line of employment.

The statute fixes the salary for clerk hire at five ($5.00) dollars per day, for this class of work, hut owing to the fact, that the clerks on this committee had worked considerable overtime, the Board of Equalization, on the fourth day of December, 1912, adopted a report and resolution of the Committee on Assessment of Railroad Property, which recommended that each clerk he allowed compensation for two hundred (200) days.

The claimant was actually employed one hundred fifty-three (153) days, for which he received eight hundred twenty-five ($825.00) dollars, hut in view of the resolution adopted by the Board of Equalization, he filed his claim for one hundred seventy-five ($175.00) dollars, which would make up for the two hundred (200) days at five ($5.00) dollars per day. The legislature made an appropriation of eight hundred twenty-five ($825.00) dollars, to cover bis salary in this case, which is sixty ($60.00) dollars over and above tbe regular rate fixed by statute, and claimant received and accepted same.

We know of no law binding tbe State for claims of this kind, and taking into consideration tbe fact, tbat tbe claimant received for bis services an amount in excess of tbat authorized by statute (chap. 120, par. 116, Hurd’s Revised Statute, 1911), we are of tbe opinion, tbat this claim should not be allowed.

Tbe claim is accordingly rejected.


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    Edward S. Hodgson v. State of Illinois.

      Opinion filed May 22, 1914.

      Wees and Salames — Kinney v. State ante followed. This case is identical with that of Kinney v. State, supra.

    Adolph Bernard, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   The claim in this case, is identical with the claim of James Kinney v. State of Illinois, in which an opinion was filed in this October Term, 1913.

The claim is rejected for the same reasons set forth in the above opinion.


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    Peyton-Palmer Company v. State of Illinois.

      Opinion filed May 22, 1914.

    License Fees — only one license required to sell chick and scratch food. Where the manufacturer of chick and scratch food has obtained a license to sell such food in this State, a retailer who buys from such manufacturer, is not required to obtain a license to sell the same.
    Lindley, Penwell and. Lindley, and Alonzo Hoff, for Claimant.
    P. J. Lncey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   The verified declaration of claimant alleges, that the claimant, Peyton-Palmer Company, is a corporation organized and existing under the laws of the State of Illinois, and doing business in the county of Sangamon, as vendors of one brand each, of chick and scratch feed; and that on August 17, 1910, it paid to the defendant, the State of Illinois, $50.00; September 5, 1911, $25.00; December 11, 1911, $50,00, for the year 1912. And, January 18,1913, $50.00, making a total of $175.00, as a license fee, to vend the one brand each of chick and scratch feed; and that it had bought said feed stuffs outright as a seller, or agents from the Ralston Purina Company of St. Louis, in the State of Missouri, who were the manufacturers; and that it paid said license fee to the defendant, the State of Illinois, under threats of prosecution, under an Act to regulate the sale and analysis of concentrated feeding stuffs, approved May 18, 1905, in force July 1, 1905.

It further alleges, that the Ralston Purina Company of St. Louis, in the State of Missouri, as such manufacturers, had paid a license fee to the defendant, the State of Illinois, on January 31, 1910, on one brand each of chick and scratch feed $25.00; February 23, 1911, one brand chick feed, $25.00; December 30, 1911, one brand scratch feed, $25.00; January 25, 1912, one brand chick feed, $25.00; January 22, 1913, one brand chick and scratch feed, $50.00.

There being no dispute as to the facts, the only question before this Court, is the construction of section 35, chapter 127B, Hurd’s Revised Statutes, to regulate the sale and analysis of concentrated feed stuffs, as to whether or not an agent or seller of a manufacturer, importer or shipper, shall be required to pay such license fee, whenever the manufacturer, importer or shipper, has already paid same, which is the fact in this case. From the reading of the last clause of said section, it would therefore seem, that the legislature clearly intended, that but one license fee should be paid to the State of Illinois, for the sale, shipping or manufacturing of one certain brand of concentrated feeding stuffs in the State; and, that if the manufacturer, importer or shipper paid the license fee, then the agent or seller of such manufacturer or shipper, would not be required to pay the same.

This license fee, having been paid by the manufacturer, the Ralston Purina Company of the city of St. Louis, State of Missouri, we are clearly of the opinion, under the language of this statute, that claimants were not required to pay the same as sellers, or agents, and are, therefore, entitled to a judgment in the sum of $175.00, and we, therefore, accordingly award claimant, Peyton-Palmer Company, the said sum of $175.00.


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    Lewis E. Taylor v. State of Illinois.

      Opinion filed May 22, 1914.

    1. Respondeat Superior — rule of not applicable to State. The rule of respondeat superior does not apply to the State.
    2. Master and Servant — law of not applicable to State. The law of master and servant Is inapplicable as between the State and one of its employees.
    3. Governmental Function — operation of Joliet penitentiary is exercise of. The penitentiary at Joliet, is operated by the State as a State institution, and in the operation of the stone quarry at said penitentiary, the State acts in a governmental capacity.
    4. Practice — Court cannot disregard legal principles. The Court of Claims, in the exercise of the equitable powers of which it is possessed, cannot disregard legal principles.
    William A. Murphy, for Claimant:
    By analogy to the relation of master and servant, it was the duty of the State to use reasonable care in furnishing claimant, its servant, reasonably safe appliances wherewith, and places wherein, to do his work.

      Orr v. Waterson, 228 Ill., 138; Mo. Malleable Iron Company v. Dillon, 206 Ill., 145; Armour v. Brazeau, 191 Ill., 117.
    A master is presumed to have notice of any defect in the appliances or materials furnished to the servant, which, by the use of ordinary care, he might know.

      Consolidated Coal Co. v. Haenni, 146 Ill., 614.
    It is the master's duty to find out defects which a reasonable investigation will disclose. The employer has a duty of inspection as well as observation.

      Ill. Steel Co. v. Mann, 100 Ill. App., 367.
    A servant, while bound to take notice of patent defects in an appliance, is not required to make an examination for latent ones, and may properly act on the presumption, that the master has used ordinary care to make the appliance reasonably safe.

      Leonard v. Kinnare, 174 Ill., 532.
    No defect is latent, which an inspection will disclose.

      Libby MacNeill & Libby v. Cook, 123 Ill. App., 574.

      Knowledge of defects from which an injury results, is a matter of defense, and the burden of proof is on the defendant to show that it was possessed by the plaintiff.

      George B. Swift Co. v. Gaylord, 126 Ill. App., 281; Pressed Steel Car Co. v. Herath, 110 Ill. App., 596; C. & E. I. R. R. Co. v. Hines, 132 Ill., 161.
    In order to charge an employee with negligence, he must know of the defect, and know that it is such as will interfere with the use of the appliance, so as to make it dangerous to use it.

      Hartrich v. Hawes, 202 Ill., 334.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State:
    The doctrine of respondeat superior does not apply to the State, and the State, in the absence of statute providing therefor, is not liable in damages for the malfeasance, misfeasance or negligence of its officers, agents or employees.

      Alexander v. State, 1 Ct. of Cl. Rep., 214; Brewster v. State, 1 id., 215; O’Donnell, Administrator, v. State, 1 id., 255; Belt v. State, 1 id., 266, and other cases cited.
    One who knows of defects, but does not report the same to his superior, cannot recover.

      Herring Admx., v. State, 1 Ct. of Cl. Rep., 228.
    In order that a servant may recover upon the ground of negligence of the master, three things must concur: (1) that the appliance was defective; (2) that there was actual notice to the master, or imputed knowledge; (3) that there was ignorance upon the part of the servant of the defect.

      Goldie v. Werner, 151 Ill., 551; Howe v. Medaris, 183 Ill., 288; L. E. & W. R. R. Co. v. Wilson, 189 Ill., 89.
    A legal or equitable right must exist as the basis of an award by the Court of Claims.

      Oliver v. State, 1 Ct. of Cl. Rep., 218; Hatfield v. State, 1 Ct. of Cl. Rep., 223.
   Claimant, while in the employ of the State as a guard or keeper at the penitentiary at Joliet, met with accident and injury in the stone quarry, operated in connection with the penitentiary, on November 4, 1910.

In the operation of the stone quarry, the State had various employees who had charge of the quarrying and crushing of stone, and the actual work was principally done by convict labor. The quarry was exeavated to a depth of about fifty feet below the level, upon which was located the stone crusher, and running from the floor of the quarry to the crusher, was an incline upon which were laid tracks. On these tracks, steel cars loaded with stone, were conveyed from the quarry to the crusher, the cars being drawn up the incline by cables operated by electric power. On one end of the car in question, was a draft iron or draw bar, fastened underneath the body of the car. This draft iron was about an inch and a half wide, a half inch thick and sixteen inches long, bolted to the underside of the body of the car, and had a hole in the projecting end in which was placed a hook connected with the cable, when it was desired to draw the car up the incline.

On the day in question, and at the time of the accident, one of these cars had been loaded and drawn up on the tracks, so that it was partly over the top of the incline, and while in this position, the car itself was standing on an angle with the cable pulling against the draft iron, not on a line with the floor of the car, but, on an angle with the floor. "While the ear was in this position, the draft iron broke, and the car went back down the incline, nothing having been provided to hold it. When it struck the bottom, it overturned, and the stones with which it had been loaded, were thrown about promiscuously, and one of them struck claimant, who, at the particular moment, was running away from the incline as rapidly as he could. Claimant had been employed about the base of the incline superintending the handling of the cars by the convicts.

The cause of the accident was the breaking of the draft iron, and one witness testified that the break was partly an old one, being partly rusty and partly fresh, and another witness testified, it was entirely a fresh break. The break was at the point where the draft iron was bolted to the bed of the car.

The injury consisted of a compound, comminuted fracture of the tibia of the left leg, and a simple fracture of the fibula. There is a shortening of the left leg of about one and a half inches, and the attending physicians agree," that claimant will be permanently crippled, and will be unable to perform any labor that will require him to walk about to any great extent. Claimant is forty-three years of age.

The State does not contest the extent of the injury, nor is there any contention over the manner in which the accident happened.

The claim is defended on the ground that claimant had notice of the defect, and that the doctrine of respondeat superior is not applicable. Claimant attempts, by analogy, to apply the rule of law applicable to the relation of master and servant to the case at bar.

One of claimant’s witnesses testified, that about an hour and a half before the accident, he told claimant of the defect in the iron bar. Claimant’s recollection, as to this testimony is indistinct, and there is no categorical denial by him of the statement of this- witness on this proposition, but on this branch of the case, if the law which is applicable to the relation of master and servant were to be followed, we would be compelled to hold that such knowledge alone on the part of claimant, taken in connection with a consideration of the whole record, would not bar a recovery by claimant on the ground, that he assumed the risk or was guilty of contributory negligence. All this evidence shows is knowledge of the defect, but the record is silent on any knowledge of, or appreciation of danger, due to the existence of the defect, on the part of claimant. There is no evidence that claimant was charged with any duty in connection with the care or management of the car in question.

But, viewed from the claimant’s side of this case, there is a far more serious question involved. As stated in O’Donnell v. State, 1 Ct. of Cl. Rep., at page 255, 256: “This Commission can, therefore, allow claims against the State, only in cases where by express statutory provision the legislature has created a liability on the part of the State for the acts of its agents; or rather, waived the exemption of the State from such liability.” We can allow claims in those cases wherein the State has not acted in the governmental capacity but has been conducting a business enterprise.

While it was stipulated in this case, that the penitentiary in question, was being operated by the State as a State institution, there is no evidence in the record, that the operation of the quarry was any other or different in its purpose, than other work done by convicts in the penitentiary. We have no right to assume from the state of the record, nor could we so hold, unless the evidence were before us, that the quarry in question, was conducted by the State otherwise than in its governmental capacity. There is no evidence that it was conducted as a business enterprise. It has likewise been held by this Court, and by many other courts, that the rule of respondeat superior does not apply to the State. This statement, of course, must be limited to cases wherein the State is exercising its governmental functions.

While claimant was in the employ of the State, and paid by the State, we cannot agree with his contention, in our interpretation of the law, that an analogy can be drawn between his relations with his employer and the relation of master and servant. Hence, we must hold, because of the legal status of the parties as herein-before pointed out, that the law and rules with reference to the relation of master and servant are here inapplicable.

As has also been repeatedly held by this Court, we cannot, in the exercise of such equitable powers as the statute has conferred upon us, disregard legal principles, even though we might be constrained to award damages.

The injuries sustained by claimant are severe, and would readily entitle him to a judgment of at least $2,500 in courts of general jurisdiction, against an employer, and we would be inclined to award him that amount were it in our power.

However, we must reject this claim for the reasons stated, but under the authority conferred upon us by statute, we direct that the rejection of this claim shall not conclude the claimant, should he endeavor to otherwise obtain redress for the injuries by him sustained.


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    The Chicago and Alton Railway Company v. State of Illinois.

      Opinion filed May 22, 1914.

    1. Demurrage — right of railroad company to charge. The law in this State is well established, that a railroad company has a legal right to assess and collect demurrage charges for the detention of its cars. (Schumacher v. C. N. W. Ry. Co., 207 Ill., 199; Woolner Distilling Company v. P. E. Ry. Co., 136 Ill. App., 479.)
    2. Same — does not depend on statute. The fact that there is no express statute authorizing railroad companies to charge demurrage, will not defeat their claim for the same.
    Winston, Payne, Strawn and Shaw, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   The claimant in this case seeks to recover demurrage from the State on account of certain coal cars having been held at the Illinois State Penitentiary at Joliet, Illinois, for a longer time than was allowed according to their tariff schedule, which was on file and approved by the Interstate Commerce Commission, at the time these charges accrued.

From May 1, 1911, to June 9, 1913, the Illinois State Penitentiary received a great many cars of coal from the Sangamon Coal Company of Springfield, Illinois, over the lines of the claimant, and very often more coal was received by them, than could be readily handled, with the result, that the yards of that institution, were often blocked with the claimant’s cars. Whenever the cars in question reached their destination, the claimant, through its employees, notified the officials of the penitentiary in writing of their arrival, stating that the cars were being held at the risk of the consignee and, that unless they removed them within a certain time, demurrage charges would be assessed according to the regular rates of the Demurrage Bureau.

The claimant made repeated attempts to collect for the demurrage assessed, but was not successful. The matter was taken up and discussed at different times between the agents of the claimant, and the officials of the penitentiary, but payment of the account was refused on the ground, that no appropriation was made for this purpose. Not being able to make a satisfactory adjustment of the account, claimant filed its claim in this Court and asks that we make an award in its favor for the amount claimed.

There can be no question, but that several cars of the claimant were held at the penitentiary longer than the allotted time as fixed by the Tariff Schedule, and as it is not contended that anything was ever paid on this claim, the principal question before the Court, is whether or not the claimant is entitled to recover for demurrage charges in this case. The State in its contention against the allowance of the claim insists, that there is no law upon the statute books of this State fixing the rates of demurrage which railroad companies may charge, and that the claimant could only recover upon a quantum meruit.

It is also contended that there is no proof of the reasonableness of the charges, and that any award that might be made in this case would of necessity be based upon mere conjecture or speculation. That the officials of the penitentiary were aware of the fact, that they would be expected to pay demurrage on cars that were not released within the allotted time, is evidenced by many conversations and communications between the agent of the claimant, and the chief engineer of the penitentiary, who had charge of the shipment of coal delivered to the penitentiary. "When pressed for a settlement of this claim, he evidently recognized the justice of it, for he wrote the Sangamon Coal Company of Springfield, Illinois, that they were shipping cars in such quantities, that he could not take care of them, and that, unless they regulated the shipments to conform to his directions, he would expect them to pay / demurrage. For nearly two (2) years, the officials in charge of the penitentiary received almost daily notices, relative to the demurrage that was being charged against them, and at no time was the reasonableness of the charges ever questioned by them.

The charges assessed were made in accordance with the claimant’s regular schedule on file with the Interstate Commerce Commission, and as the State did not offer any evidence in support of their contention, with reference to the reasonableness of the charges made, we are not in position to say, that the charges are unreasonable. Neither, are we in a position to say, that the claimant was to blame for the manner in which the cars were shipped from the Sangamon Coal Company to the penitentiary.

We believe it to be well established law in this State, that a railroad company has the right to assess and collect demurrage charges for the detention of its ears (Schumacher v. C. N. W. Ry. Co., 207 Ill., 199; Woolner Distilling Company, v. P. E. Ry. Co., 136 App., 479), and in view of the evidence submitted to us, we are of the opinion, that the claimant is entitled to recover the amount of its claim.

We, therefore, find for the claimant, and make an award in its favor of three hundred fifty-seven ($357) dollars.


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    Laurence O. Tinsman v. State of Illinois.

      Opinion filed May 22, 1914.

      Practice — rule of. A failure on the part of claimant to take evidence, and file abstracts and briefs, as required by the rules of this Court, -will support a motion by the Attorney General to dismiss.
    John E. Kost, for Claimant.
    P. J. Lucey, Attorney General, and Arthur B. Boy, Assistant Attorney General, for State.
   This claim was filed in this Court on the 26th day of January, 1912, by the claimant, Laurence O. Tinsman, of Galesburg, Knox County, Illinois, for the sum of $25.00, which he paid to the State Board of Commissioners of Labor, to open up and operate a private employment agency at Galesburg, Knox County, Illinois.

Claimant alleges in his declaration, that he received a license, No. 2020, from the State Board of Commissioners of Labor at 14 East Main Street, Galesburg, Illinois, for which he paid the sum of $25.00, which payment was made on the 20th day of June, 1911, and that he conducted and operated said agency until August 1, 1911, when he quit said business and left the city.

No evidence having been taken and filed in support of the claim set up in the declaration, as required by statute and rule 13, of the rules of this Court, the Attorney General thereupon filed a motion in this Court, on the 8th day of November, 1912, to dismiss said claim for non-compliance with the rules, on the part of the claimant in neglecting and failing to take evidence in support of said claim, and to file abstracts and briefs as required by the statute and the rules of this Court.

An examination of the files fails to show that any proofs in support of his claim have ever been taken by the claimant, as required by the statute and the rules of this Court; the claimant simply rests his case on Ms verified declaration, and from all indications expects tMs Court to determine the merits of tMs case therefrom. This, the law does not give this Court the power to do.

While it is not the disposition of tMs Court to dismiss claims, yet, this Court is hound to f ollow the rules established by it for the transaction of its business, and sufficient time having elapsed since the filing of this claim, to have taken testimony in support of it, and to have filed the arguments and briefs, and the claimant having failed to do so, the motion to dismiss tMs claim is therefore allowed, and the same is therefore dismissed.