author: Me. Justice Yantts

text:
    (No. 3302
    Harold Glick, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1939.

    Reginald C. Harmon, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Me. Justice Yantts

delivered the opinion of the court:

This claim was filed July 21, 1938, seeking an award of $1,800.00, under the Workmen’s Compensation Act for the loss by claimant of the use of his right eye.

From June 8, 1935 to the date of filing of the claim, claimant was a regular employee of respondent at the University of Illinois where he was classified asi a certified electrician. He had previously been employed at irregular intervals at the University since October, 1920.

On November 1, 1937 at about 11:30 A. M. claimant was engaged in taking down some wire which held curtains on a temporary stage at the skating rink at the University of Illinois. While standing on a ladder to cut the wire, one end flew back striking him in the right eye. Immediate notice was given to his employer and he was furnished hospital and medical service to the amount of $477.40, which was paid by respondent.

Dr. J. Howard Beard testified that he examined claimant on the day of the accident and repeatedly thereafter, and that from the standpoint of industrial vision claimant’s eye is a total loss.

Dr. Hanby L. Ford, an Eye, Ear, Nose and Throat Specialist, located in Champaign, Illinois, testified that he performed an operation on claimant’s eye on November 9, 1937 and removed the lens of the eye; that on January 7, 1938 he performed a discission on the eye and on February 3, 1938, a subsequent discission; that from an industrial visional efficiency standpoint a one-hundred (100) per cent loss has been sustained by claimant to the eye in question and this condition is permanent.

Claimant testified that in standing before a window he conld distinguish between light and dark but can see no objects with the right eye.

Following the accident claimant resumed work on January 17, 1938 and continued through February 2, 1938. He was then forced by his injury and the surgical care of the eye to discontinue work until March 21, 1938, from which date he worked steadily until the filing of his complaint. He lost eighty-seven and one-half (87%) days of work and he received pay in the sum of Two Hundred Fifty-nine and 48/100 ($259.48) Dollars. He prays an award for specific total loss of-use of the right eye under the terms of the Workmen’s Compensation Act, in the sum of One Thousand Eight Hundred ($1,800.00) Dollars, and represents that the payment of Two Hundred Fifty-nine and 48/100 ($259.48) Dollars was for thirty-one (31) days, leaving temporary total compensation due him for fifty-six and one-half (56%) days.

The Attorney General contends that under a proper construction of the language of the Supreme Court in the case of Western Cartridge Co. vs. Ind. Comm., 357 Ill. 29, claimant would not be entitled to temporary total disability payment for the full period of eighty-seven and one-half (87%) days of work which he lost, because he returned to work on January 17, 1938, and that the later period of absence from work cannot be counted as a period of temporary total incapacity, under the theory that any disability after his return to work must be classified as either partial or total permanent disability and not as a part of his temporary disability; that the period of temporary total incapacity is that temporary period immediately after the accident, during which the injured employee is totally incapacitated for work by reason of the illness attending the injury. That such time may be described as the period of the healing process.

The court agrees with counsel for claimant that the latter should not be denied any part of the temporary total disability that is due him for the period of his enforced inability to work, by reason of the fact that he attempted to work during the periods between his operations. Any other interpretation of the law as it applies to the facts in this case would tend to discourage an injured employee from going back to work, as he would be discouraged by the fear of denial of the right of recovery in the event that he was unable to continue to work permanently.

Claimant had been employed by respondent for more than one- year prior to the accident and his earnings were One Hundred Eighty ($180.00) Dollars per month. He had a wife but no children under the age of sixteen (16) years.

The amount of compensation which should be payable to the employee for an injury not resulting in death, is, under the provisions of Section 8 (b) of the Act, limited to Fifteen ($15.00) Dollars per week where there is no child under the age of sixteen (16) years at the time.

His period of temporary total disability was apparently fourteen (14) weeks three and one-half (3%) days, for which he would be entitled to Two Hundred Eighteen ($218.00) Dollars. As he was paid Two Hundred Fifty-nine and 48/100 ($259.48) Dollars, there has been an overpayment to him of Forty-one and 48/100 ($41.48) Dollars.

“The amount of overpayment for temporary total disability is allowable as a credit to the employer when called upon to pay specific loss for partial or total permanent disability.”
Black vs. State, No. 3108, Court of Claims Opinion; rendered May 10, 1938;
Johnson vs. State, No. 2906, Court of Claims Opinion, rendered November 16, 1938.
“The amount of compensation which shall be paid to the employee for an injury not resulting in death shall be:
“For" the loss of the sight of an eye, or "for the permanent and complete loss of its use, fifty percentum of the average weekly wage during one hundred and twenty weeks.”
Section 8 (e-16), Workmen's Compensation Act.

Under the facts appearing herein an award is hereby approved in favor of claimant for specific loss of use of his right eye, in the sum of One Thousand Eight Hundred ($1,800.00) Dollars, minus Forty-one and 48/100 ($41.48) Dollars, or One Thousand Seven Hundred Fifty-eight and 52/100 ($1,758.52) Dollars.

This award would be payable at the rate of Fifteen ($15.00) Dollars per week, but payment for seventy-one (71) weeks has accrued to March 13, 1939, making the sum of One Thousand Sixty-five ($1,065.00) Dollars payable at the present time, the balance of Six Hundred Ninety-three and 52/100 ($693.52) Dollars is payable in forty-six (46) weekly amounts of Fifteen ($15.00) Dollars each, commencing March 20, 1939, and one final payment of Three and 52/100 ($3.52) Dollars.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” Approved July 3, 1938 (Sess. Laws 1938 p. 83), and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from said appropriation from the General Revenue Fund in the manner provided for in such act.


source: Caselaw Access Project

author: Mr. Justice Yantis

license: Public Domain

text:
    (No. 3121
    Rolla Tipsord, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1939.

    James A. Light, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeks an award of Nine Hundred Sixteen ($916.00) Dollars for accidental injury sustained while employed by respondent. On September 24, 1936 he was employed by the Division of Highways in highway improvement work on State Aid Route No. 11 near Saybrook, Illinois. While assisting in the construction of a concrete erosion wall, claimant’s left hand was caught between a large stone and the wall and the first phalanx of the index finger of the left hand was crushed. He was immediately taken by his foreman to Dr. James Jensen at Saybrook who dressed the finger and put it in a splint. The doctor at that time stated to claimant that in his opinion the end of the finger would have to be amputated, but claimant postponed any such act because of the hope that treatment might heal the finger without his suffering- loss of time or wages, as would be the case if the finger was amputated. Claimant continued to report for duty until November 14, 1936 at which time the work at Saybrook was discontinued and claimant was released. As claimant’s finger did not heal he complained to the Highway Division in January, 1937 and arrangements were made for him to be taken to Chicago to Dr. H. B. Thomas. The latter, on March 11th, examined claimant’s finger and reported that he had an open osteomyelitis of the bone, service connected. The X-ray showed two sequestra which should be removed. On April 19th claimant was again taken to Dr. Thomas and he was operated on, and the fragments of bone and the balance of the first phalanx of the injured finger were removed. He remained at St. Luke’s Hospital until April 21st. He remained in Chicago until April 23rd and again returned to Chicago on April 28th and remained there until May 2nd. He again returned to Chicago June 3rd and was treated by Dr. Thomas until June 14,1937, when Dr. Thomas reported the injury had reached a permanent stage. The Division of Highways has paid the following bills in connection with claimant’s treatment:

Dr. James Jensen......................................... $ 29.50
Dr. H. B. Thomas......................................... 141.00
St. Luke’s Hospital ........................................ 19.50
Mrs. Lizzie Tipsord and Rolla Tipsord, board and lodging... 21.05
$211.05

Claimant had not been employed by respondent for a period of a full year prior to the accident, and as an extra man his wage for compensation purposes would be on the basis of two hundred (200) working days per year. It is stipulated that his average weekly wage was Fifteen and 38/100 ($15.38) Dollars. Claimant at the time of the accident was the father of eight children all under the age of sixteen years, and they and their mother were living with the claimant and dependent upon him for support. Any compensation due him therefore will, under the provision of Section 8 (j-2) of the Workmen’s Compensation Act, be on the basis of a minimum allowance of Fourteen ($14.00) Dollars per week. Under Section 8 (e-2) if claimant had suffered the entire loss of the first finger he would be entitled to Fourteen ($14.00) Dollars per week for a period of forty (40) weeks. Under Section 8 (e-17) he would be entitled to such proportion of forty (40) weeks as the proportion of loss or loss of use of such index finger bears to total loss. Under Section 8 (e-6) the loss of the first phalange of a finger is considered the loss of one-half thereof.

There is no question from the record but what claimant is therefore entitled to an award for the loss of the first phalange of said finger. In considering the testimony relative thereto, we find that the evidence all supports in addition to the loss of the first phalange, further disability to the finger by reason of the resulting stiffness in the middle joint. The evidence therefore supports a finding of seventy-five (75) per cent loss of use of such index finger.

We therefore find that claimant is entitled to an award on the basis of Fourteen ($14.00) Dollars per week for thirty (30) weeks, for seventy-five (75) per cent loss, of use of such finger, in the total sum of Four Hundred Twenty ($420.00) Dollars.

In his complaint claimant also seeks an award for Fourteen ($14.00) Dollars per week for nineteen (19) weeks temporary total disability, and Four and 50/100 ($4.50) Dollars per week for twenty (20) weeks temporary partial disability, and acknowledges that respondent has paid him on account of this claim the sum of Eighty-two and 14/100 ($82.14) Dollars from April 18, 1937 to June 14, 1937.

The proof discloses that respondent paid temporary total disability at the rate of Eleven and 22/100 ($11.22) Dollars per week from April 18, 1937 to June 19, 1937, amounting to Ninety-two and 96/100 ($92.96) Dollars.

This case presents a peculiar situation. After having his hand dressed the day of the accident September 24, 1936, claimant returned to work and continued to be employed until November 4, 1936. During this time he was paid full wages but testified that he did not work after the first fifteen minutes, because he was unable to handle a spade and do the required work; that he was kept on the payroll until his crew was laid off, and that during the last three weeks before the job was finished he was not there half of the time, because he was at home and at the doctor’s office, suffering with pain from his injured finger (Transcript p. 21). Claimant was unable to work from November 1, 1936 to April, 1937. On April 6, 1937 claimant was put on WPA work and was paid for six days. Apparently claimant did no work during these six days but drew one pay check, and according to the testimony in the record (Transcript p. 22), such check was just another form of relief so far as claimant was concerned. In February, 1937 claimant was sent to Chicago to be examined by Dr. Thomas. His examinations, treatments and operations continued under the care of Dr. Thomas during which time he stayed in Chicago for several days at a time, returning to Chicago on June 2, 1937 and again later in June. He was discharged by Dr. Thomas on June 14, 1937, with a notation that the finger had reached a permanent stage. During all of the period following the injury on September 24, 1936 to March 11, 1937 claimant’s injured finger was draining and chunks of bone were loosening therefrom. After Dr. Thomas discharged claimant on June 14, 1937 his finger continued to drain until about April 10th, but Dr. Thomas’ report stands that the injury had reached a permanent condition on June 14, 1937.

Counsel for respondent contends that no award for temporary total disability should be allowed, because claimant was employed and continued to work immediately following the injury and continuously thereafter for over a month, until November 4, 1936. We do not construe the provisions of Section 8 (b) of the Workmen’s Compensation Act as meaning that in order to pay under the temporary total incapacity provision of such Act that such temporary' total incapacity must start immediately following the accident and be continuous thereafter. It is true that the latter part of such provision reads as follows:

“Provided, that in the case where the temporary total incapacity for work continues for a period of more than thirty days from the day of the injury, compensation shall commence on the day after the injury,”

but the intention of-this proviso is only for the purpose of allowing compensation for the first six working days in those cases where the disability is serious enough to last for an extended period of time. An injured person might attempt to work for several days before the effects of his injury would become apparent or develop in seriousness to such an extent that he would be copipelled to cease his labor, but in such case the employee would still be entitled to the benefits of the Compensation Act. As to how much time may elapse between the injury and the commencement of temporary total disability, we do not feel called upon to state, as the facts in each case would be material.

In the United Airlines case, 265 Ill. 346 the temporary total disability started August 28, 1933, while the injury was incurred April 30, 1932, a period of approximately sixteen months. The term “temporary total incapacity” is nsed to indicate a preliminary stage of relief or aid for an employee, prior to the time when his injuries may have resulted in a permanent condition of disability. It is sometimes described as the “healing period” or the time during which medical treatment is given to cure or relieve the injured employee from the effects of his injury.

In the case of Mt. Olive Coal Co. vs. Ind. Comm., 295 Ill. 429, the court said:

“The period of temporary total incapacity is that temporary period immediately after the accident during which the injured employee is totally incapacitated for work by reason of the illness attending the injury. It might be described as the period of the healing process. ‘Temporary’ as distinguished from ‘permanent’ disability is a condition that' exists until the injured workman is as far restored as the permanent character of the injuries will permit.”

The foregoing statement contains a possible contradiction for it uses the phrase “the period immediately after the accident,” and then describes the period of temporary disability as being that of the healing period during which the injured workman is being* restored as far as the permanent character of his injury will permit.

We believe that proper cases may exist where the temporary total disability may not commence immediately after the injury, and that the facts in the present case bring it within snch a class. The injured condition of claimant’s finger was certainly of a temporary character until after the operation, and the fact that he was kept on the payroll while he performed no labor, justifies treating such pay as was given to him during that period, as compensation rather than wages. However, even had he performed some work up to November 4, 1936, and then because of the serious condition of his finger, been compelled to cease work, he would still, in the opinion of the court, be entitled to compensation for temporary total disability for any compensable time up to the operation that was performed by Dr. Thomas and the claimant’s discharge by the latter.

In the case at bar we have an employee who was kept on the payroll, but who apparently performed no remunerative work from the time of his injury on September 24, 1936 until November 4, 1936. He was unemployed from the latter date until June 14, 1937 when his injury was pronounced by the surgeon in charge as having reached a permanent stage in development. During this latter period he was again paid for six days non-productive time by the WPA in April, 1937.

We find that his account should be figured as follows:

37 weeks and 4 days temporary total disability, commencing
September 24, 1936, at $14.00 per week.................... $525.00
Deduction for amount paid for non-productive time......... 169.86
Total allowance for temporary total disability........ $355.14
An award is therefore hereby made in favor of claimant foils per cent loss of use of the index finger of his left hand,
in the sum of........................................... 420.00
A further award is hereby allowed for temporary total disability due claimant in the sum of....................... 355.14

The above awards would be payable on a weekly basis of Fourteen ($14.00) Dollars per week, but as the entire amount has heretofore accrued, the above items are payable at the present time.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3rd, 1938 (Sess. Laws 1938 p. 83), and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from said appropriation from the Road Fund in the manner provided for in such Act.


author: Mr. Justice Tantis

text:
    (No. 3198
    Mildred McWhirter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1939.

    Alfred S. Pfaff, for claimant.

      John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Joseph Sullens was employed at the State School and Colony, operated by the State of Illinois at Lincoln, from and after October 9, 1933. On or about the 15th day of January, 1937 he was employed as a general handy-man being classified as a plasterer’s helper, his duties being plastering, minor carpentering and minor repair work about the buildings of the institution. In the carpenter shop there are power band and cross-cut saws, planers, jointers, lathes, drill presses and mortising machines, and in the machine shop there are power-driven presses, lathes and other machinery. On or about the 15th day of January Mr. Sullens, while passing from one building to another on the grounds of the institution, in the course of his duties, slipped and fell on the ice. He struck the back of his head on the cement sidewalk and immediately thereafter complained to one of his fellow employees. He reported his accident to Mr. Fred H. Mahler under whom he worked. A day or two after the accident the latter noticed that Mr. Sullens was acting in a strange manner and his mind seemed to be wandering. A fellow employee, Mr. Alf L. Niemberg, saw Mr. Sullens fall and strike his head. Frequent headaches resulted and in a few days he was removed to the institutional hospital. He left the hospital on two different occasions but it was necessary to return him to the hospital each time, and he died there on the 7th day of February, 1937. From the evidence in the record it satisfactorily appears that his death was the result of the injuries which he sustained on January 15th as aforesaid.

His salary at the time of Ms death was Sixty ($60.00) Dollars per month with an additional maintenance allowance of Twenty-four ($24.00) Dollars per month. He received his full pay for the month of January, 1937 and for six days in February, 1937. The last check was for Twelve and 68/100 ($12.68) Dollars which was forwarded to the claimant herein as the Administratrix of his Estate. Notice of claim for compensation was made within six months and the claim was filed herein on February 3,1938. He left surviving as his only heir at law, his daughter, Mildred McWhirter, claimant herein. Before Mr. Sullens became employed by the State he lived on a sixty-acre farm which he owned in Marion County, Illinois. His daughter, son-in-law and their daughter resided with him. The son-in-law is ruptured and does light work about the farm. Their daughter is eighteen years of age and is unemployed. The farm is improved with a three-room dwelling, barn and granary. There are ten (10) acres of pear trees, about twenty-five (25) acres of farm land and the balance is rough pasture and timber. They obtained no crops off the land between October, 1933 and January, 1937 except to aid in feeding four horses, three cows and the chickens. There is a mortgage on the land of approximately $1,000.00 now past due. During the past several years the family received some drouth relief in connection with the operation of the farm. The employee, Sullens, from month to month sent approximately all of the cash wages received by him home to his daughter and this money was spent for the living expenses of herself, husband and daughter, and for the payment of the taxes and interest on the mortgage. The record shows that claimant herein received two-thirds of her living from the proceeds of her father’s salary. The family was never on relief at any time during the five years preceding the father’s death, but has been receiving relief since that time. The deceased employee left no life insurance, and at the time of the hearing the funeral bills had not been paid.

The court finds that under the evidence herein appearing, the deceased employee and respondent were operating-under the terms of and were bound by the provisions of the Illinois Workmen’s Compensation Act; that said employee suffered an accident which arose out of and in the course of his employment and as a result of which he died. That due notice and application for payment of compensation have been given and requisite claim filed. That under the provisions of Paragraph (c), Section 144, Chapter 48, Ill. Revised Statutes, 1937, and under the facts appearing in the record, claimant is entitled to an award for partial dependency on a proportionate basis of two-thirds of the total sum allowable.

“If no amount is payable under paragraph (a) or (b) of this Section (7) and the employee leaves any * * * child * * * who at the time of the injury was partially dependent upon the earnings of the employee, then such proportion of a sum equal to four times the average annual earnings of the employee as such dependency bears to total dependency, but not less in any event than $1,000.00 and not more in any event than $3,750.00.”
(Sec. 7 (c) Workmen’s Compensation Act.)

Joseph Suilens ’ monthly wage should be computed on the basis of Eighty-four ($84.00) Dollars per month, or One Thousand Eight ($1,008.00) Dollars per year. Applying the above rule an award is due in the present case of Two Thousand Six Hundred Eighty-eight ($2,688.00) Dollars. The average weekly wage would figure Nineteen and 38/100 ($19.38) Dollars and any award payable hereunder would be on the basis of fifty (50) per cent thereof, or Nine and 69/100 ($9.69) Dollars per week. The accident in question occurred January 15, 1937 and payments have accrued for a period of one hundred twelve (112) weeks to March 12, 1939, resulting in an earned award to the latter date of One Thousand Eighty-five and 28/100 ($1,085.28) Dollars, less $13.65 heretofore paid for unproductive time, making $1,071.63 due at this time; and future monthly payments on the basis of Nine and 69/100 ($9.69) Dollars per week for one hundred sixty-five (165) weeks commencing March 19th and one final payment of Three and 87/100 ($3.87) Dollars, making total deferred payments in the aggregate sum of One Thousand Six Hundred Two and 72/100 ($1,602.72) Dollars.

An award is therefore hereby entered in favor of Mildred McWhirter, Petitioner herein, as the partially dependent daughter of Joseph Suilens for the sum of Two Thousand Six Hundred Seventy-four and 35/100 ($2,674.35) Dollars payable as follows:

$1,071.63, payable at the present time;
1,598.85, payable hereafter on the weekly basis of $9.69 per week for 165 weeks; and 3.87, final payment.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3, 1938 (Sess. Laws 1938 p. 83), and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from said appropriation from the General Revenue Fund in the manner provided for in such Act.


author: Mr. Chief Justice Hollerich

text:
    (No. 2588
    Oral Casey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1939.

    Charles R. Meyers, for claimant.
    John E. Cassidy, Attorney .General; Glenn A.-Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

The claimant, Oral Casey, has been in the employ of the respondent as a member of the Highway Maintenance Police since April 4, 1933. On July 31st, 1934, while on his way to drill and inspection at Mt. Vernon, his motorcycle collided with a truck driven by one Robert Hale, at a highway intersection on S. B. I. Route 142, about a mile north of Mt. Vernon. Claimant was traveling about forty-five miles per hour, and the accident appears to have resulted from the fact that the truck which was traveling down a slight incline had no brakes, and the driver was unable to control the same. As the result of such collision the claimant sustained a fracture of the lower jaw, a fracture of the skull, an injury to his wrist, a large laceration of the thigh, and numerous other lacerations about his face and body. He was confined to the hospital for fifty-one (51) days, and returned to his work on January 14th, 1935.

All necessary first aid, medical, surgical and hospital services were furnished and paid for by respondent, the bills therefor ag’gregating $1,830.00. Claimant makes no claim for any permanent disability, but asks for compensation for disfigurement of his head and face. He submitted to an examination by the court, and from such examination and the testimony in the record, it appears that he has an irregular scar on his right forehead about two inches in length and a similar scar on the rig’ht side of his face about two inches long, extending from a point about one and one-quarter inches backward from the outer edge of the right eye, in a vertical direction toward the center of the face.

During the time he was off work as aforesaid, he received his regular salary of One Hundred Fifty Dollars ($150.00) per month.

Claimant is a married man and had one child under the age of sixteen years at the time of the accident.

There is no question but what claimant and respondent, at the time of the accident, were operating under the provisions of the Workmen’s Compensation Act, and the only question in the case is the nature and extent of the injuries sustained, and the amount of compensation to be paid therefor.

Upon a consideration of the evidence, we find that the claimant was temporarily totally disabled from the date of the injury to January 14,1935, to wit, 23-5/7 weeks, for which he is entitled to receive compensation under the provisions of Section 8, paragraph (b) of the Workmen’s Compensation Act, at the rate of Fifteen Dollars ($15.00) per week, to wit, the sum of Three Hundred Fifty-five Dollars and Seventy-one Cents ($355.71).

We further find that as the result of the accident in question, the claimant has sustained a serious and permanent disfigurement to the head and face, and that he is entitled to receive compensation therefor under the provisions of Section 8, paragraph (c) of the Workmen’s Compensation Act in the sum of Eight Hundred Fifty Dollars ($850.00); such compensation also being payable in weekly installments of Fifteen Dollars ($15.00) per week.

We further find that the claimant has received of the respondent the sum of Eight Hundred Twenty Dollars and Ninety-nine Cents ($820.99) to apply on the compensation due bim as aforesaid. Deducting’ the amount paid by the respondent from the total amount of compensation to which claimant is entitled as above, to wit, Twelve Hundred Five Dollars and Seventy-one Cents ($1,205.71), leaves a balance of compensation due the claimant in the sum of Three Hundred Eighty-four Dollars and Seventy-two Cents ($384.72).

The entire amount of such compensation having accrued at this time, an award is hereby entered in favor of the claimant for the sum of Three Hundred Eighty-four Dollars and Seventy-two Cents ($384.72).

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3d, 1937 (Session Laws 1937, p. 83) and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Boad Fund in the manner provided for in such Act.


text:
    (No. 3339
    Emile A. Cote, et al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 16, 1939.

    Wm. H. Fischer, for claimants.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Twenty-seven claimants join in presenting this claim and allege in substance that they were for various periods set forth in the complaint, between January 1, 1934 and December 30, 1938, duly appointed official Shorthand Beporters in Circuit, Superior and City Courts of Illinois, whose salaries were payable by the State.

That on the 21st day of June, 1933 the General Assembly of the State of Illinois enacted a law providing for their appointment and fixing the salaries at the sum of Three Thousand Six Hundred ($3,600.00) Dollars each per annum, said Act to take effect on January 1, 1934.

That from and after January 1, 1934 salaries have been paid to the respective claimants and to Robert M. Ramsey, now deceased, for whom Jennie E. Ramsey, Executrix, joins herein, on the basis of Three Thousand Two Hundred Forty ($3,240.00) Dollars per annum, and that there remains due and owing to each of claimants, the sum of Thirty ($30.00) Dollars per month' for the respective periods shown in said complaint, twenty-one of said claimants seeking $1,800.00 each, one seeking $210.00, one $1,470.00, another $643.00, another $1,530.00, one $1,710.00 and two other $1,600.00 each.

The claimants base their contention on the averment that they were entitled to salary at the rate of $3,600.00 per year and that they were paid on the basis of $3,240.00 per year.

The Attorney General has filed a motion to dismiss said complaint for the reason that the correct salary to which the respective claimants were entitled during said period was in fact $3,240.00 per annum, and as the complaint shows that they have each received the full amount of their salary on the basis of said sum of $3,240.00 per annum, said complaint should be dismissed.

Prior to the 58th General Assembly, Section 156 of Chapter 37 being Section 2 of “An Act to Authorize the Judges' of Circuit, Superior and City Courts to Appoint Shorthand Reporters’ ’ etc., in force June 1, 1929, contained a provision that such reporters in Circuit and Superior Courts and in City Courts in cities having a population of fifty thousand or more should receive out of the State Treasury of this State, an annual salary of $3,600.00, payable monthly on the warrant of the Auditor of Public Accounts, out of any money in the State Treasury not otherwise appropriated. Said Act further provided that each reporter in City Courts in cities of less than fifty thousand population should receive and be paid out of the County Treasury $10.00 per diem for each day his court is in session. A further provision in said Act then recited that the presiding judge in such City Court should furnish to such Reporter at the close of each term of Court a Certificate éhoioing the amount of per diem dv,e him.

Two amendments were made to said Section 2 by the 58th General Assembly. One amendment originated in the Senate and one in the House. Under the terms of Senate Bill No. 98 the provision that the Judge’s Certificate should be furnished to the Reporter at the close of each term of Court, was changed to read that the presiding judge in such City Court (in Cities of less than fifty thousand population) shall furnish to such reporter “on the first day of each calendar month,” a certificate showing the amount of per diem due him, etc. This was the only material change made by said bill.

The other amendment was under House Bill No. 19 and the only change made by it was the substitution of the figures “3240” for the previous figures of “3600,” so that said Act should read, “Said reporters paid out of the State Treasury of $3,240.00. shall receive and be an annual salary

Senate Bill No. 98 was introduced January 4, 1933,
Senate Bill No. 98 was passed May 24, 1933,
Senate Bill No. 98 was approved June 21, 1933, and by its terms became effective January 1, 1934. (Sess. Laws 1933, p. 461.)
House Bill No. 19 was introduced January 10, 1933,
House Bill No. 19 was passed June 2, 1933,
House Bill No. 19 was approved June 3, 1933, and by an emergency clause became effective immediately. (Sess. Laws 1933, p. 463.)

Each of said bills repeated the language in full of Section 2 as it then read with the exception of the specific change proposed, and both were therefore in compliance with the provisions of Section 3 of Article 4 of the Constitution of Illinois of 1870 which provides,

“No law shall be revived or amended by reference to its title only, but the law revived, or the section amended, shall be inserted at length in the new Act.”

The Senate Bill was introduced first and was passed first. The House Bill was approved first and by its emergency clause became effective immediately, while the amendment under Senate Bill No. 98 did not become effective until January 1, 1934, but both were, passed at the same session of the 58th General Assembly of 1933.

To determine the effect of more than one amendment to a particular section at the same session, all such amendments must be read together and the changes made by each shall be given effect unless the changes are inconsistent.

“In. construing an Act of the legislature, the title of the Act, the objects to be accomplished, the other provisions found in connection with those under special consideration, the provisions and arrangement of the statutes which were amended, the mode in which the amendment was introduced, as shown by the journals and records, and the history of the legislation, may all be considered.”
People vs. Lloyd, 304 Ill. 23.

The presumption is that different Acts of the legislature, passed at the same session thereof, are imbued by the same spirit and actuated by the same policy, and that one was not intended to repeal or destroy another, unless so expressed. Statutes enacted at the same session of the legislature should receive a construction if possible which will give effect to each. Each is supposed to speak the mind of the same legislature, and the words used in each should be qualified and restricted, if necessary, in their construction and effect, so as to give validity and effect to every other Act passed at the same session.

In the case of Hutchinson vs. Self, objections had been filed to the rendition of judgment for delinquent taxes levied for the payment of interest on railroad aid bonds issued by the town of Waverly. It appeared that the Act incorporating the railroad company in question became a law on April 23, 1867, and the town of Waverly became incorporated by a special charter two days later, April 25, 1867. In considering the powers of the town of Waverly, the court said:

“The Act incorporating the railroad company and the one incorporating the town were passed at the same session. The former made provision for conferring this power (to issue bonds in aid of railroads) on towns thereafter to be incorporated as well as those already incorporated, and when the latter Act was passed incorporating the town said Act became clothed with the additional power as fully as if it had been expressly embraced in its charter. The two Acts must be construed together, and when so construed there is no repugnancy between them."
Hutchinson vs. Self, 153 Ill. 542.

When one considers the provisions of Senate Bill No. 98 and House Bill No. 19 above mentioned and the fact that they were being concurrently considered in the House and the Senate respectively at the same time, it becomes apparent that the intention of the legislature was to amend the statute relative to the payment of official court reporters in two respects and in two respects only, i. e. that for those who were serving in City Courts in cities of less than fifty thousand population the presiding judge of such court should issue a certificate to the reporter on the first day of each calendar month, showing the per diem due such reporter, instead of at the close of each term as previously fixed by statute, and that the salary of court reporters in Circuit and Superior Courts and in City Courts of cities of over fifty thousand population, that the annual salary should be reduced from $3,600.00 to $3,240.00. To make such latter change definitely effective before January 1, 1934, an emergency clause was attached to said House Bill No. 19 and it became effective on approval by the Governor on June 3, 1933.

As the complaint herein shows upon its face that claimants have each received their respective salaries in full on the basis of the statutory amount of $3,240.00 per year, such claim fails to set forth any ground for further award, and the motion of the Attorney General should be allowed.

The motion to dismiss the claim is allowed and the claim as to each of said claimants is dismissed.


author: Mr. Justice Linscott

text:
    (No. 2578
    Charles M. Thomson, as Trustee of the Estate of Chicago and Eastern Illinois Railway Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1939.

    Thomas N. Cook, for claimant.
    Otto Keener, Attorney General; John Kassbrman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant in this case, Charles M. Thomson, as Trustee of the Estate of Chicago and Eastern Illinois Railway Company, filed his claim with the clerk of this court against the State for the sum of $10.98, which is one-half transportation furnished to Helen E. Thomas, a registered nurse from West Frankfort, Illinois, to Chicago, Illinois, in August, 1933, as per itemized bill attached to the complaint. The claimant endeavored to secure payment of these transportation charges from the Department of Health, but was advised by the Director of Public Health that the funds from which transportation charges for trachoma patients were paid, for which the transportation in question was furnished, had been exhausted, and it was necessary for the claimant to file claim with the Court of Claims for payment of these charges.

No question arises about the facts in this case. From an investigation, we find that no funds were allocated to the Department of Public Health for the 1933 biennium from which the expenditures involved in this claim would have been properly payable. While it appears that the charge is just and reasonable, and the services were actually rendered by the claimant, this court has no power or jurisdiction to give validity to a claim that never had any legality.

The claim will, therefore, be dismissed.


text:
    (No. 2788
    Edwin Krug, Chester Strader, Frank Poole, John A. Williamson, Chas. Dalton, E. F. Hendricks, Boyd Rains, Henry Sams, Gerald A. Denton, John L. Strader, T. H. Lipe, Gabe Henson, Charley Griggs, Charles Snell, R. M. Jeffries, J. A. Lindsay, Charlie Fisher, Harry Fisher, Will Miller, E. J. McMillan and John C. Bishop, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 11, 1939.

    J. Kelly Smith and M. C. Cook, for claimants.
    John E. Cassidy, Attorney General; Glenn Trevor, Assistant Attorney General, for respondents.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On December 28th, 1935 the first thirteen of the above named claimants filed their claims herein. By amendment filed January 15th, 1936, the other claimants, eight in number, were added as parties to this proceeding.

The original complaint, together with the amendment of January 15th, 1936, alleges in substance as follows:

1. That prior to the spring and summer of 1935 the several claimants were in the possession, as tenants, of certain premises on which they were growing corn and other farm products.

2. That in 1921 the Olive Branch Drainage District was organized; that the lands farmed by the several claimants herein drained into the ditches of such District.

3. That the outlet of said Drainage District was into Horseshoe Lake, which was near and adjacent to the land occupied by the several claimants herein; that upon the creation of said Drainage District, the land occupied by the several claimants was drained in and through the channels of said Drainage District in such manner that the several claimants raised large crops of corn and other farm products upon such land prior to 1935.

4. That during the year 1931 the State of Illinois negligently made and constructed, and have since that date maintained, a large earth and concrete levee, embankment, or dam, with iron screening thereon, across the outlet of said Horseshoe Lake; that since the construction of such levee, embankment or dam, the respondent has maintained a game preserve in said Horseshoe Lake and the land adjacent thereto.

5. That during the year 1935 the several claimants had planted some corn, and were preparing the land for additional planting; that the waters flowing into said Horseshoe Lake and against said dam backed up and overflowed the land of the claimants, and remained on said land in such manner that the com planted by the claimants was damaged, and that portion of the land which was being prepared for planting became and was unplantable.

6. That in consequence of the negligent construction of the aforementioned embankment or dam across said Horseshoe Lake, the corn planted by the several claimants was greatly damaged and destroyed, and the land which had been prepared for planting was damaged to such extent that the several claimants were unable to produce the usual crop therefrom, whereby the several claimants sustained damages in various amounts, aggregating the total sum of $18,496.00.

On March 24th, 1938, pursuant to leave of court theretofore obtained, the claimants amended their complaint by striking out the words “negligently,” “negligence” and “negligent,” wherever such words appeared in the several counts of the complaint.

The case now comes before the court at the conclusion of the claimants’ testimony, on the motion of the Attorney General that judgment be entered in favor of the respondent, upon the ground that the evidence in the record does not justify an award in favor of any of said claimants.

The evidence discloses that all of the claimants except T. H. Lipe and B. M. Jeffries, were tenant farmers during the year 1935 and prior years, and that said Lipe and Jeffries owned the farms which they operated.

The damages claimed by all of the claimants except Lipe are for a loss of crops for the year 1935; Lipe claims similar damages for 1935 as well as for 1933 and 1934.

The evidence in the record regarding the dam and embankment in question is somewhat meagre but clearly shows that such dam and embankment extend across the outlet of Horseshoe Lake a distance of about one-eighth of a mile; that the embankment is constructed of earth; that the dam is constructed of concrete, and has iron gates; that it is six and one-half feet high up to the spillway, and has a wire screen three feet high over the spillway; that it was constructed for the purpose of creating a fish and game preserve in Horseshoe Lake.

The original complaint herein, as well as the amendment adding additional parties plaintiff, was based upon the negligent construction and subsequent maintenance of the embankment and dam in question. By the amendment filed March 24th, 1938, the several claimants altered their position, and by such amendment eliminated their previous charges of negligence in the construction of such dam and embankment.

From the Brief and Argument of counsel for the several claimants, it appears that they now base their right to an award upon some one or more of the following grounds, to wit:

1) Negligence of the respondent in the operation of the gates in the dam.

2) That the respondent failed to exercise ordinary care in devising the plans for the dam in question, and that by reason thereof the claimants sustained the damage complained of.

3) Equity and good conscience.

4) The provisions of Section 13 of Article 2 of the Constitution, to the effect that private property shall not be taken or damaged for public use without just compensation.

The above contentions will be considered in the order named.

I.

If there were any liability on the part of the respondent for negligence in the operation of the gates, it would necessarily have to be based upon the doctrine of respondeat superior. There can be no question but what the State, in the creation of a fish and game preserve, for the people of the State, is engaged in a governmental function.

It is the well-settled law of this State that in the exercise of its governmental functions, there is no liability on the part of the State for the negligent acts of its servants or agents under the doctrine of respondeat superior, in the absence of a statute making it so liable. Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234; City of Chicago vs. Williams, 182 Ill. 135; Hollenbeck vs. County of Winnebago, 95 Ill. 148; Horney, et al. vs. State, 9 C. C. R. 354; Titone vs. State, 9 C. C. R. 389.

II.

The general rule with reference to liability for defective plans is stated in 43 Corpus Juris, page 952, Section 1730, as follows:

“In the making and adopting of a plan for a public work or improvement a municipal corporation acts in its judicial, discretionary, and legislative capacity, and hence is not liable for injuries which result only from a defect in such plan.”

The same rule is set forth in 19 R. 0. L., page 1091, Section 376.

The rule as above set forth is with reference to municipal corporations, but applies with even greater force to the State, for the reason that the doctrine of respondeat superior applies in many cases to municipal corporations where it would not apply under similar facts to the State.

The rule as above set forth has been recognized in numerous cases in this State, although some of the cases which have stated the rule have failed to apply the same by reason of the facts in the particular case. See City of Chicago vs. Norton Milling Co., 97 Ill. App. 651; City of Chicago vs. Seben, 165 Ill. 371; Hanrahan vs. City of Chicago, 289 Ill. 400.

III.

The liability of the State in any case, solely on the grounds of equity and good conscience was exhaustively considered by this court in the case of Crabtree vs. State, 7 C. C. R. 207, in which case, after reviewing the authorities on the subject, we arrived at the following conclusion, to wit:

“That Section four (4) .of paragraph six (6) of the Court of Claims Act, which provides as follows, i’o-wit: The Court of Claims shall have power: ‘to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contracto and ex delicto, which the State as a sovereign commonwealth, should, in equity and good conscience, discharge and pay’; merely defines the jurisdiction of the court, and does not create a new liability against the State, nor increase or enlarge any existing liability; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable; that this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the court; that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.”

The question was again considered by the court in the case of Titone, et al. vs. State, 9 C. C. R. 389, in which additional authorities were cited, and the decisions of the courts of other States were reviewed. Upon such review the decision in the Crabtree case was adhered to, and the same has been followed consistently since that time.

IV.

Section 13 of Article II of the Constitution of 1870 provides that private property shall not be taken or damaged for public use without just compensation.

Under the constitutional provision, the right of the claimants in this case to an award is not dependent upon any negligence on the part of the. State. If the claimants bring themselves within the constitutional provision, as construed by the courts, they are entitled to an award regardless of whether there is any negligence on the part of the respondent.

The question as to whether private property has been taken or damaged for public use in a given case, within the meaning of the constitutional provision, is not always free from difficulty. Not every person whose property has been damaged is entitled to be compensated therefor. The owner’s right to compensation must be determined in accordance with the rules of law and of legal procedure. Cases involving-claims for damages for the overflow of lands resulting from the construction of dams, embankments, and other structures, have been before our courts many, many times since the adoption of the Constitution of 1870, and certain principles of law relating thereto were considered well settled by our Supreme Court as far back as 1895.

In the case of City of Centralia vs. Wright, 156 Ill. 561 (decided 1895), the plaintiff sought to recover damages to certain lands owned by him, resulting from the construction of a dam across the non-navigable stream known as Crooked Creek, whereby water was set back upon his premises.

On the trial in the Circuit Court it was contended by the defendant that the plaintiff could only recover such damages as had been sustained up to the time the suit was commenced, while on the other hand, plaintiff insisted he was entitled to recover in the one action all damages for the past, present and future.

In considering the question, the court said (page 565):

"Whether the recovery shall be confined to such damages as had been sustained at the time the action was brought, or would include all past, present and future damages, depends upon another question, and that is, whether the injury is permanent in its nature or merely of a temporary character. If the former, all damages may be recovered; if the latter, only such damages as had accrued up to the time the action was brought.”

After reviewing a number of cases, the court said:

“There are many other cases where this same doctrine has been laid down, but the law in this State is so well settled that a reference to other cases is not deemed necessary. * * * It is not necessary to establish the fact that the structure erected by the city shall continue forever in order to determine that the structure is. permanent. It is enough that the city had the legal right to erect and maintain the system of waterworks perpetually. * * * We think, therefore, the erection of the dam which caused the damages was a permanent structure, and the Circuit and Appellate Courts properly held that damages past, present and prospective were recoverable.”

The law as laid down in the City of Centralia case has been approved and followed in numerous cases since decided, and must be considered as the settled law of this State. See North Shore Street Ry. Co. vs. Payne, 192 Ill. 239; Suehr vs. Chicago Sanitary District, 242 Ill. 496; Bernhardt vs. B. & O. S. W. R. R. Co., 165 Ill. App. 408; Wheeler vs. Sanitary District, 270 v 461; Holm vs. County of Cook, 283 Ill. App. 190.

From a consideration of the foregoing authorities it appears that in all cases involving claims for damages as the result of the obstruction of water courses, the first question for consideration is whether the obstruction in question is a permanent structure, or whether it is temporary or transient. If it is a substantial structure, constructed pursuant to lawful authority and in an ordinarily careful and prudent manner, it is considered permanent. If it is constructed without lawful authority, or in negligent manner, it is considered temporary or transient. If the structure is a permanent one, and damages result therefrom, there is but one right of recovery, and such right is in the owner of the premises at the time of the construction of the structure, and does not pass to the grantee of such owner. In such case the measure of damages is the difference between the fair cash market value of the property prior to the making of the improvement, and the fair cash market value thereof after the making of the improvement and as affected by it. If the structure is temporary or transient, successive actions may be maintained by the party injured.

The identical question here involved was considered in the case of I. C. R. R. Co. vs. Ferrell, 108 Ill. App. 659. That was a proceeding by Ferrell to recover damage to growing crops, resulting from overflow alleged to have been caused by the Railroad Company in obstructing the natural flow of water through Drury Creek. In that case the court said (page 666):

“Appellant insists that appellee has no right of action to recover damages, although by obstructing Drury Creek, appellant may have caused it to overflow the land described in the declaration; that under the evidence, if appellant is liable at all, it is for permanent injury, and that for such injury there can be but one recovery, and that by the owner of the land.
“This defense is based upon the proposition that the alleged obstructions were lawfully built with reasonable care, and for legitimate railroad use, and are permanent in their character. It is evident from an examination of appellant’s charter, as stated before, that the cutting of .the channel for Drury Creek on its own right-of-way, the building of a dam across this channel to secure water for its own use, and the bridging of this creek, were within its granted powers, and are, therefore, not unlawful.
“It is not alleged, nor is it proved, that these acts were not done with reasonable care and were not for proper railroad uses.
“The law is well settled in this State, that a railroad company, authorized by its charter, to construct and maintain its road, when it does so skillfully and with reasonable care, and for proper railroad uses, although it may in so doing, injure adjacent property, is not a nuisance that can be abated. It is well settled also, that an injury to property thereby caused, is to be treated as a permanent injury for which but one recovery can be made by the owner of the land, and that the measure of damages is the decreased value of the property, and that a right of action for such damages does not pass to a subsequent grantee of the owner, and that the statute of limitations begins to run from the date of the existence of the causes which produced the injury. * * * These decisions, and others that might be cited, while holding that but one recovery can be maintained by the owner of land injured by lawful and permanent causes, do not hold that a tenant for a term of years whose1 leasehold estate is lessened in value by reason of such permanent causes, put in operation during his term, may not recover for damage to such estate. We see no valid reason why he should not recover.
“But applying the principle that the owner can recover in but one action, and that for depreciation in the value of the realty, the tenant could recover in but one action, and that for the damage to his leasehold estate.
“It is also well settled, that a tenant leasing land which is subject to recurring injury from overflows, and damage to crops occasioned by lawful and permanent causes existing when he leased the land, is a volunteer, taking it subject to such damages and with no right of action to recover for the same.”
“If a right of action does not pass from the oioner to a subsequent purchaser, it follows by analogy, that a right of action in the landlord does not pass to his tenants”

and on page 670:

“The elevation of the dam which appellee testifies caused the overflow having been made in 1893, if appellee remained on the land as tenant from year to year during the years 1896 and 1897, in which years he claims to have been damaged, he was for those years a volunteer holding over, subject to such damages as he might suffer.”

In the case of Horney, et al. vs. State, 9 C. C. R. 354, the claimant sought to recover damages for loss of crops during the period of five years prior to the filing of the complaint, as the result of water standing or remaining on her land by reason of the construction of a hard-surfaced highway. In that case the claimant acquired title after the completion of the improvement. We found that the improvement in question was a permanent improvement, and that the right of action was in the owner of the property at the time of the making of the improvement; that there could be but one recovery, and that such recovery should include all damages, past, present and future; that, a subsequent alienee of the property took the same as it existed at the time of the conveyance, and had no right of action for damages resulting from the improvement and accruing after the conveyance.

The embankment and dam in the case now on trial was constructed by the State pursuant to lawful authority. The complaint as amended does not allege, and the evidence does not disclose, any negligence in the construction of such improvement. It is a substantial structure, and under the authorities above cited, must be considered as a permanent structure. Consequently, there can be but one recovery for damages resulting from the construction of such dam or embankment, and such recovery must be by the owner of the land at the time of the construction of the improvement, and must include all damages, past, present or future, resulting from such construction.

As stated in the case of I. G. R. R. Go. vs. Ferrell, ante, if the right of action for damages does not pass from the owner to a subsequent purchaser, a right of action in the landlord does not pass to his tenant.

All of the claimants except T. H. Lipe and ft. M. Jeffries being tenants who came into possession of the land after the making of the improvement, took it as it was, and have no claim for damages to their crops.

The claimant, E. M. Jeffries, acquired his property subsequent to the construction of the dam, and consequently has no right of action even for injury to the land.

The claimant, T. H. Lipe, is the owner of the land for which he claims damages, but the measure of his damages is the difference between the fair cash market value of the property prior to the making of the improvement, and the fair cash value thereof subsequent to the making of such improvement, and as affected by it. There is no evidence in the record as to the fair cash market value of his property, either before or after the making of the improvement, and consequently there is no basis for an award to him.

The motion of the Attorney General must therefore be sustained, and the claim of the several claimants herein is dismissed.


author: Mb. Chief Justice Hollebich

text:
    (No. 3308
    The County of Will, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 11, 1939.

    James E. Bitere, for claimant.
    John E. Cassidy, Attorney General; Mubeay F. Milne, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

The claimant herein seeks to recover the sum of $2,548.18, being the amount of money advanced by it for fees and costs in connection with the prosecution of one James Day, an inmate of the Illinois State Penitentiary.

The claim is based upon the provisions of Section 14 of an Act entitled, “An Act in Relation to the Illinois State Penitentiary and to Repeal Certain Parts of Designated Acts — Illinois Revised Statutes of 1937, Chapter 108, Paragraph 118, which reads as follows:

“When, any crime .is committed within any division or part of the penitentiary system by any person confined therein, cognizance thereof shall be taken by any court of the county wherein such division or part is situated having jurisdiction over the particular class of offenses to which such crime belongs. Such court shall try and punish the person charged with such crime in the same manner and subject to the same rules and limitations as are now established ■ by law in relation to other persons charged with crime in such county. * * * and provided, further, that all fees and costs arising from the prosecution of convicts for crimes committed within the penitentiary system, which would otherwise be paid by the county, shall be paid by the State.”

It appears that one James Day, an inmate of the Illinois State Penitentiary located at Stateville, Joliet, Will County, Illinois, was indicted for the murder of one Richard Loeb, another inmate of said penitentiary; that said Day was tried for said crime in the Circuit Court of Will County, and that the trial occupied the time from May 25th, 1936 to June 4th, 1936.

The Attorney G-eneral filed an Answer on behalf of the respondent, in which he admits that there is due and owing to the claimant the sum of $2,470.03 for fees and costs as above set forth.

Thereupon the claimant filed a waiver of the amount claimed in excess of $2,470.03, and asked for an award in the last mentioned amount.

Under the aforementioned statute and the pleadings in this case, it appears that the claimant is entitled to the sum of $2,470.03 and an. award is therefore entered in favor of the claimant for such amount.


author: Mr Justice Yantis

text:
    (No. 3170
    Nancy Tranchita, Amelia Paris and Tony Tranchita (aged 10 years), Angelina Tranchita (aged 9 years), and Jack Tranchita (aged 6 years), Minors, By Nancy Tranchita, Their Next Friend, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 1, 1939.

      Rehearing denied April 12, 1939.

    Michael R. Dtirso and Simon T. Sutton, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr Justice Yantis

delivered the opinion of the court:

Claimant Nancy Tranchita is the mother of Frank Paris, Deceased; Amelia Paris is the latter’s sister, and Tony ‘Tranchita, Jack Tranchita and Angelina Tranchita are half-brothers and half-sister respectively of said Frank Paris.

The latter was a member of Company A, 132nd Infantry ■of the Illinois National Guard, and on August 12, 1937 was -engaged in field maneuvers with his regiment near Rockford, Illinois. He was riding on a convoy truck with eight or nine other men. At a sharp curve and descent in the roadway and because of the condition of the brakes on the truck, the incline and the sharp turn, the driver of the truck lost control, causing the truck to side-swipe the supports of a bridge over which they were then passing. Private Paris was seated ■facing the rear of the truck, with his left foot on the seat and the right foot on the floor. The impact of the truck striking ■.the bridge caused him to lose his balance and his left leg extended outside of the truck and was crushed between the right side of same and the bridge supports. Immediate first aid was applied by the medical officer of the 129th Infantry and he was taken by ambulance to St. Anthony’s Hospital in Rockford where, according to the Adjutant General’s report, everything possible was done for him, but he died within a few hours as a result of such injury. The Medical Board’s report shows that the accident occurred in the line of duty and was not due to any misconduct on the soldier’s part. The Coroner’s verdict in"the case contains the following:

“We, the jury, find that the driver of the truck was not competent, not familiar with the vehicle and recommend that in the future all trucks used in Army War Game Maneuvers have drivers familiar with their duties and that the equipment be kept in first class condition.” ’

It is apparent from the record that a claim under the provisions of the Military and Naval Code (Ch. 129, Sec. 143, Smith-Hurd Ill. Rev. Stat., 1935) is proper. Such section reads as follows:

“In every case where an officer or enlisted man of the National Guard or Naval Reserve shall be injured, wounded or killed while performing his duty as an officer or enlisted man in pursuance of orders from the Commandei'-in-Chief, said officer or enlisted man, or his heirs or dependents, shall have a claim against the state for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand.”

Amelia Paris, the adult sister of Frank Paris, and Nancy Tranchita individually as his mother, and also as next friend for the three minor children, seek an award of Four Hundred Forty ($440.00) Dollars for burial expenses incurred for the deceased, and a further award of Ten Thousand ($10,000.00) Dollars as compensation for the loss to their means of support and further education. Two months prior to the time of his death Frank Paris became employed in the Presbyterian Hospital at Chicago, Illinois, at the rate of Sixty ($60.00) Dollars per month, and was so employed at the time of his death. All of the claimants, the deceased, Frank Paris, and his stepfather lived together in Chicago. Frank Paris was born July 21, 1918 and was never married. His father is dead. His stepfather, Andrew Tranchita, the daughter, Amelia Paris, and the deceased, Frank Paris, were all employed at the Presbyterian Hospital in Chicago. The stepfather earned approximately One Hundred ($100.00) Dollars per month and the sister approximately Fifty ($50.00) Dollars per month. They and the brother gave their money to the mother and she used it to pay the rent, light and gas bills, food, clothing, medicine and other family expenses. Mrs. Tranchita testified that sometimes she gave her son • and daughter back Five ($5.00) Dollars that they could use for themselves to buy such clothes as they might desire.

In order that the son, Frank Paris, might help contribute to the family earnings, he was taken out of High School six months before time for him to graduate, and the earnings which he and his sister and stepfather contributed to the family, in the total sum of Two Hundred Ten ($210.00) Dollars per month, was expended for the general maintenance of the family of seven. Presuming that he received his one-seventh share of the benefits thereof, his surplus contribution to the other members of the family would be Thirty ($30.00) Dollars per month. Whatever right to an award exists in favor of claimants is by virtue of the aforesaid provisions of the Military and Naval Code of Illinois. No hard and fast rule exists for determining what amount should be allowed. In certain of these cases the court has seen fit to take as a guide, but not as a fixed rule, the provisions of the Illinois Workmen’s Compensation Act, in determining what payment would be reasonable and customary for the loss sustained. Section 7 (c) of that Act provides:

“Where the.deceased leaves uo widow or children whom he was under legal obligation to support, but leaves a parent, child or children who at the time of the injury were partially dependent upon his earnings, then the amount of compensation to be paid for an injury to such person resulting in the latter’s death, shall be such proportion of a sum equal to four times the average 'annual earnings of the employee as such dependency bears to total dependency, but not less in any event that $1,000.00 and not more in any event than $3,750.00. Any compensation payments other than necessary medical, surgical or hospital fees shall be deducted in ascertaining the amount payable on death.”

If the deceased had been an employee of the State, and had suffered the injuries complained of while so employed, no award in excess of the minimum sum of One Thousand Four Hundred Forty ($1,440.00) Dollars would have been allowable.

Considering what would be a proper award in this case had the deceased been an employee of the State, and from a consideration of all the facts appearing in the record, the court finds that no award in excess of One Thousand Five Hundred ($1,500.00) Dollars would be justified herein, as the proportionate part of the earnings received by the claimants from the wages of the deceased were considerably less than the amount required for such an award. An award is hereby made in favor of claimants in the total sum of One Thousand Five Hundred ($1,500.00) Dollars, for loss of services due to the death of said Frank Paris. Again guided by the rule in compensation cases, no additional allowance is made for the funeral expenses incurred by his family for deceased. As the record shows that Amelia Paris was not receiving any support from deceased, but was, like her stepfather and the deceased, paying her own share of such household expense, and contributed to the care and support of the other members of the household, the award herein is made payable to Nancy Tranchita individually and as next friend for Tony Tranchita, Angelina Tranchita and Jack Tranchita, minor complainants.


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    (No. 2155
    Henkel Construction Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 12, 1939.

    William M. Scanlan, for claimant, Oscar E. Carlstrom, of counsel.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Henkel Construction Company, claimant herein, is a co-partnership, engaged in the business of building and constructing highway improvements in Illinois and other states. It submitted a bid to the State of Illinois, Department of Public Works and Buildings, Division of Highways, at a letting held on August 4, 1926, and thereafter claimant was awarded a contract for the building and construction of Sections 19 and 20 of S. B. I. Route No. 18. On August 18, 1926 the following letter was mailed to claimant by Frank T. Sheets, Chief Highway Engineer:

“Gentlemen:
“On August 7, you were awarded the contracts for the above mentioned sections subject to the following special provision in each of these contracts:
“ ‘Right of Way. The right of way for the road to be built under the terms of this contract has not as yet been secured, but will be secured on behalf of the Department of Public Works and Buildings. No work shall be done on this section until formal written notice to proceed has been given by the Department to the contractor, but the work shall be completed within six months after said formal notification has been given. No extra compensation nor claim for damages will be allowed the contractor on account of delay in securing the right-of-way and starting work.’ ”
“The right of way for the following portions of these sections has now been secured:
“Section 19 from Station 109/00 to Station 213/00.
“Section 20 from Station 14/36 to Station 276/00.
“Work may, therefore, be started immediately on the portions for which the right of way has been secured. No work should be undertaken on the remainder of the sections until you have been further advised by this Department.”

Separate contracts for the construction of the several sections were entered into, and one section known as 20-X provided for under Contract No. 2793, was carried on to completion, and was not involved in any delay in connection with the construction of Sections 19 and 20.

Claimant was authorized by letter, dated August 18,1926, signed by C. M. Hathaway, Engineer of Construction, to place orders for cement for use in building Sections 19 and 20. Claimant also received a letter, dated August 19, 1926, signed by M. J. Fleming, District Engineer, urging claimant to commence work on Sections 19 and 20 as soon as possible, such letter stating,

"five miles of right of way had been cleared up on Section 20 extending from Mendota to Meriden and two miles had been cleared up on Section 19 extending through Earlville and to the west.
“* * * * will be glad to receive your letter as soon as possible, advising when the culvert and grading outfits can start.”

C. M. Hathaway, Engineer of Construction, also wrote claimant on August 24, 1926 stating to claimant that construction of these sections (19 and 20) this season is extremely important and every effort should be made on your part to start work immediately. Claimant notified Hathaway by telegram and letter that they expected to start work the next Friday or Saturday, i. e. September 3rd or 4th, 1926. In that letter claimant stated, “our plans are to move our outfit on the job this fall and winter and be all set for an early start on the paving next spring. ’ ’ During September, 1926 claimant started work building culverts, excavating and grading and continued until stopped by bad weather. This work was resumed in the spring of 1927, and on May 27th C. M. Hathaway authorized claimant to place further orders for cement. In the early part of June, 1927 claimant moved in its paving outfit to the location near Meriden and commenced laying cement on the sections of S. B. I. No. 18 covered by its contracts. It continued its work until June 25, 1927 when a telegram was received by Carl Henkel as follows:

“Supreme Court of Illinois in Hill, et al. vs. County of LaSalle, et al., holds that bill for injunction in reference to location or Route Eighteen, Section Nineteen and that portion of Section Twenty from Meridian east should be heard on its merits. Therefore we direct you to stop work today until location has been approved by the courts.”

This injunction suit was predicated on averments that the right of way indicated by the Division of Highways for a distance of approximately eighteen miles between the Villages of Somonauk and Meriden, was through territory over which no highway had ever been previously established and did not conform to the route set forth in the bond issue statute under which the road was being constructed.

Upon receipt of this telegram claimant discontinued its work on Section 19 and that part of Section 20 east of Meriden which were involved in and affected by the above decision of the Supreme Court, but proceeded to carry on the construction of pavement on that part of Section 20 lying west of Meriden.

The paragraph concerning right of way, contained in the letter from Mr. Sheets to claimant under date of August 18, 1926, was also included as a special provision in each of the contracts which claimant signed.

After claimant completed its work west of Meriden and having been notified not to proceed further with work lying east of Meriden pending the determination of the controversy under the Hill case, claimant early in the year 1928 abandoned its camp and moved its supplies to another section of the State where it had other work.

As a result of the above suit and the adjustment made thereunder, the route of S. B. I. No. 18 was relocated, so as to be entirely clear of Section 19 and a part of Section 20. These portions of Sections 19 and 20 as specified in the contract were abandoned and such portions of Sections 19 and 20 as relocated were thereafter constructed under the provisions of Supplementary Agreement, signed by claimant on October 24,1928. These Supplemental Agreements contained recitals referring to the prior execution of the original contracts on August 7, 1926; that a decision of the Supreme Court had been entered on June 23, 1928, making it necessary to modify the location of certain portions of Route No. 18, and that,

“For and in consideration of the payments and agreements herein contained, party of the second part (claimant herein) agrees with said party of the first part at his own proper cost and expense to perform all the work, furnish all the materials and all labor necessary for the construction of a Portland cement concrete pavement on a location which will be a modification of the location as described in the above mentioned contract for said Section 19 * * ", as provided in the revised plans for Section 19, approved by said party of the first part, August 11, 1928, and which are made a part hereof. The following work shall be performed in accordance with said plans prepared by the Department of Public Works and Buildings, Division of Highways, and said work shall be considered a full performance of the original contract instead of the completion of the unfinished work contemplated in the original contract, and will be paid for at the following unit prices, as provided in the original contract * * *. It is further agreed that all conditions, terms and other provisions of the original contract shall govern, except as specified herein.”

Claimant constructed the paving on Sections 19 and 20 as relocated, and completed its work during the last week of July, 1929. The damages which it seeks are the result of a change in proposed right of way and delay incident to acquiring parts of such right of way, and the relocation of the sections of roadway in question, which prevented claimant proceeding normally with its work. Said changes necessitated its moving and rehandling its machinery and supplies with additional expense for Superintendent, Time-keepers and Foremen, all in an amount of Twelve Thousand Four Hundred Thirty-one and 10/100 ($12,431.10) Dollars, for which it filed its claim in the Court of Claims on April 19,1933.

A number of conferences were held between Carl Henkel, officials of the Highway Department, and of the Attorney General’s Office, as a result of which a revised statement of claim in the sum of Nine Thousand Five Hundred Fifty-one and 16/100 ($9,551.16) Dollars was filed, and no contention exists as to the computation of damages.

The only question to be determined is the liability on the part of the State of Illinois to pay claimant the said sum of Nine Thousand Five Hundred Fifty-one and 16/100 ($9,551.16) Dollars.

The Attorney General contends that the claim is barred by the special provision contained in both the original and supplemental contracts, absolving respondent from damages on account of delay in securing the right of way or in starting work. Also, that the claim is barred by the statute of limitations as not having been filed within five years after claimant’s right of action accrued. Further, that the claims are also barred by the language of Section 41, General Specifications, which were made a part of the contracts in question, said clause being,

“The acceptance by the contractor of the last payment as aforesaid shall operate as and shall be a release to the department from all claims or liability under this contract for anything done or furnished, or relating to the work under this contract, or for any act or neglect of said department relating to or connected with this contract,”

it appearing from the record that the Engineers’ final payment estimates for said Sections 19 and 20 were scheduled for payment on December 20, 1929, and that State warrants No. 203020 and No. 203021 were sent to claimant on December 31, 1929 and were returned to the auditor January 7, 1930 after having been cashed by claimant.

Counsel for Claimant contends that the right of way clause, “No extra compensation nor claims for damages will be allowed the contractor on account of delay in securing the right of way and starting work,” should not bar this claim, because, as he claims, the delay which arose here was not in securing the right of way but was due to the court order in the case of Hill vs. LaSalle Co., 326 Ill. 508, and the subsequent action of the Highway Department in changing or relocating a section of the proposed road; further, that such delay was not in ‘ ‘ starting work, ’ ’ but was the result of discontinuance of work after having been started, such discontinuance being due to the instructions of respondent.

The court is mindful of the apparent earnest effort that has been made by claimant in conference and otherwise, to reduce its claim to an amount which respondent’s agents agreed it was in fact damaged. If the contract under which it performed the work in question would, by its terms, permit a recovery, we would without hesitation grant an award for the amount of additional expense to which claimant is shown by the record to have been put because of the delayed construction. We have endeavored to adhere to the rule that in recognizing the demands of equity and good conscience, awards must be restricted to those claims wherein the State would be liable if suable in a court at law. While claimant did in fact discontinue its construction work on June 25, 1927, in response to the telegram of that date from the Director of the Highway Department, such stopping of work and the telegram and decision of court which prompted the sending of the message, were all delays resulting from the failure to secure the right of way for the proposed S. B. I. Route No. 18.

Claimant cites the case of Carson-Payson Co. vs. State, 8 C. C. R. 581 and Willadsen vs. State, 8 C. C. R. 604, in support of its contention that “Where claimant sustains a loss under his contract with the State through no fault of his own but occasioned solely by the State, through a change of plans, an award will be made. ” The distinction between the cases cited and the case at bar is that the defenses herein urged do not appear in either of said cases, and so far as the record discloses, the contracts in neither of those cases contained any provision similar to the non-payment clause in the right of way specification contained in the present contract.

Claimant was aware of the possibilities of delay on this job, because the clause for non-payment of any claims for damages due to delay in securing the right of way that was contained in the original specifications, was quoted in the departmental letter to claimant of August 18, 1926, wherein claimant was told of having been awarded the contracts in question, and was referred to in claimant’s letter of September 1,1926 to C. M. Hathaway. In this letter claimant stated, ‘1 On the day we signed the contracts we informed Mr. Sheets that we were unwilling to start any work until all right of way was cleared, ’ ’ etc. Such comment or statements could not change the effect of the contract itself. Such proviso is incorporated in the supplementary agreements of October 24, 1928 by virtue of the clause therein which reads, “It is further agreed that all the conditions, terms and other provisions of the original contract shall govern except as specified herein.” We are unable to reach any other conclusion than that the entire difficulty in the construction of the highway in question arose out of obtaining the proposed right of way. The injunction suit was the result thereof, and the instructions of the Highway Department to discontinue the work followed the latter. Observance of the contract undoubtedly Avorks a hardship upon claimant, but the latter made its contract and knoAvinglv accepted its terms. What is true in regard to the provision just discussed is also true Avith regard to the further proAdsion contained in Section 41 of the Standard Specifications for road and bridge construction, which formed a part of claimant’s contract, as hereinabove quoted. In AdeAV of the foregoing views, we will not extend the record by discussing the question when the claimant’s right of action might have accrued. With due reluctance an award is denied and the claim dismissed.


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    (No. 3139
    Robert H. Streeper and I. H. Streeper III, A Co-partnership, Doing Business Under the Name of C. N. Streeper Sons, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1939.

    I. H. Streeter, III, for claimants.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

Claimants are engaged in the undertaking business at Alton, Illinois, and on November 5th, 1937, filed their claim herein for $1,925.00, for services in connection with the burial of fifty inmates of the Alton State Hospital; — such services having been rendered at various times during the period from February 8th, 1933 to June 2d, 1937, inclusive.

It appears from the record that each and every burial was ordered by the Superintendent of the institution, in accordance with a custom which is as old as the institution itself; that so far as can be ascertained, none of the persons buried left any estate; that none of the relatives of any of such deceased persons claimed the body; that all of the bodies were buried in the institution cemetery; and that the charge made for each burial, to wit, $38.50, is the charge fixed by the Department of Public Welfare therefor.

Claimants presented their claim to the Managing Officer of the Alton State Hospital on or about September 11th, 1937, but payment thereof was not made on account of the fact that the respective appropriations from which the several items were properly payable, had lapsed prior to the time any action could be taken on the claim.

The Attorney General has entered a motion to dismiss the case, and contends that there is no constitutional or statutory provision making the State liable for the burial expenses of inmates of a State hospital; and that under the provisions of the “Pauper Act” of this State (Ill. Eev. Stat. 1937, Chap. 107) and the decision of the Supreme Court in the case of Town of Kankakee vs. McGrew, 178 Ill. 74, construing certain provisions of such Act, the liability for such burial expenses is upon the relatives of the deceased inmate, if they are of sufficient ability, and if not, then the liability is upon the municipality charged by the provisions of the “Pauper Act” with the support of such persons.

The pertinent sections of such “Pauper Act” are as follows :

Section 1 — “That every poor person who shall be unable to earn a livelihood in consequence of any bodily informity, idiocy, lunacy, or other unavoidable cause, shall be supported by the father, grandfather, mother, grandmother, children, grandchildren, brothers or sisters of such poor person, if they, or either of them, be of sufficient ability.”
Section 14 — “Counties not under township organization shall relieve and support all poor and indigent persons lawfully resident therein,” etc.
Section 14(a) — “Cities, villages and incorporated towns having a population of more than 500,000 inhabitants and all incorporated towns which have superseded civil townships, shall relieve and support all poor and indigent persons lawfully resident therein,” etc.
Section 15 — “In counties under township organization * ® * the various towns * * * shall relieve and support all poor and indigent persons lawfully resident within their respective territories,” etc.

It will be noted that each and all of the aforementioned sections provide only for the “support” of the unfortunate persons therein named, and that no reference whatsoever is made to the burial expenses of such persons.

In the case of Town of Kankakee vs. McGrew, arnbe, relied upon by the Attorney General, the court, in considering the several sections of the “Pauper Act,” said, page 84:

“The necessities of the unfortunate class designed to be relieved by the law do- not, however, admit of delay. Pain and suffering must be relieved; food, fuel, clothing and shelter must be furnished to those in need; the dead must he hurled.”

The important part of the above quotation is the recognition by the Supreme Court of the fact that the burial is a part of the support which must be furnished.

The aforementioned “Pauper Act” was adopted in 1874 and so far as the question here involved is concerned, the sections quoted are substantially the same now as they were when first enacted.

In considering the question here involved, it will also be necessary to consider some of the provisions of the 1 ‘ Charities Act” of this State (Ill. Rev. Stat. 1937, Chap. 23, approved June 11, 1912).

Section 20 of such Act provides as follows:

“The Board of Administration, is hereby required and empowered to cause the removal of insane persons from county almshouses to State hospitals for the insane,” etc. * * * “After sufficient accommodations shall have been provided in State institutions for all the pauper and indigent insane of all the counties of the State, the cost of clothing and other incidental expenses of county insane patients in State hospitals shall not be a charge upon any county after the first of January next ensuing, but the cost of the same shall be paid out of funds provided by the State for the support of the insane.”

Section 21 of such Act provides as follows:

“No insane person now, or hereafter, under the care of any State hospital in this State, shall be returned or committed to the care of any county insane asylum or almshouse, or to any county, town or city authorities; and the said county, town or city authorities are hereby forbidden to receive any such patient who may be returned or committed to them in violation of this section. After the State has assumed complete care of the public insane, no insane person shall be permitted to remain under county care, but all public insane shall be committed to the State hospital for the insane, or to private hospitals for the insane, as provided herein.”

Section 23 of such Act provides as follows:

“The total cost of the support of inmates of State hospitals for the insane shall be a charge against the estates of patients or their conservators, or against the relatives of such patients who would be liable for the support of the persons of such inmates under an Act entitled ‘An Act to Revise the Law in Relation to Paupers,’ approved March 23, 1874, if they were not inmates of such hospitals,” etc. * * * “and upon the death of any such patient while an inmate of a State hospital for the insane, it' shall be the duty of said board to file a claim against the estate of said deceased patient for all the balance of the unpaid support given for the entire term such deceased person was an inmate of any State hospital for the insane, and it shall be the duty of the court in which such claim is filed to allow the same and direct its payment in due course of administration.”-

From a reading of said Sections 20, 21 and 23, it seems clear that it is the policy of this State since the adoption of the “Charities Act” of 1912, that all of the insane patients of the several counties of the State shall be cared for and supported by the State, at State institutions such as the Alton State Hospital. If the “support” of such persons includes burial expenses, as indicated by the Supreme Court in the Me Grew case, then such burial expenses must be furnished by the State.

It also seems clear that since the adoption of the “Charities Act” of 1912, there is no liability on the part of the county, township, or other municipal corporation for the support of the patients at any State hospital for the insane. The fact that Section 23 provides that the total cost of the support shall be a charge against the estates of patients, or against the relatives who would be liable for their support under the “Pauper Act,” indicates that the support is to be furnished by the State, and that the cost thereof is to be recovered, if possible, from the estate of a patient, or from his relatives if they are of sufficient ability to pay for the same.

All of which leads to the conclusion that the “support,” including burial expenses of deceased patients whose bodies are not claimed by their relatives, is to be furnished by the State, and that the State is liable therefor in the first instance.

The fact that the State has established a cemetery at such institution would seem to indicate that this is the construction which has been placed upon the Act by the State itself.

In this connection it might be well also to consider briefly the liability of the State, under the facts here involved, in the absence of any statutory provisions relative thereto.

In an annotation on “The Duty and Liability of Strangers in Respect to Corpse,” L. R. A. 1918D, the following annotation appears on page 281:

"There is little of actual decision upon the duty and liability of strangers in respect to a corpse. The leading authority is the opinion of Lord Denman in Reg. vs. Stewart (1840) 12 Ad. & Ed. 773, 113 Eng. Reprint, 1007, 8 Eng. Rui. Cas. 462, where he said: ‘It should seem that the individual under whose roof a poor person dies is bound to carry the body decently covered to the place of burial; he cannot keep him unburied, nor do anything which prevents Christian burial: he cannot therefore cast him out, so as to expose the body to violation, or to offend the feelings or endanger the health of the living and for the same reason he cannot carry him uncovered to the grave.’ It will probably be found, therefore, that, where a pauper dies in any parish house, poor house, or union house, that circumstance casts on the parish or union, as the case may he, to hury the body; not by virtue of the Statute of Elizabeth, but on the principles of the common law. * * * The modern view of the law is based generally upon the foregoing observations of Lord Denman.
“Thus, the first part of the statement heretofore quoted from Reg. vs. Stewart was referred to, for example, in Wynkoop vs. Wynkoop (1863) 42 Pa. 293, 82 Am. Dec. 506, and was quoted in Pierce vs. Swan Point Cemetery (1832) 10 R. I. 227, 14 Am. Rep. 667, and in Rappelyea vs. Russell (1862) 1 Daly (N. Y.) 214.
“So, in Patterson vs. Patterson (1875) 59 N. Y. 574, 17 Am. Rep. 384, the court said: ‘It would seem, at common law, that if a poor person of no estate dies, it is the duty of him under whose roof his body lies to carry it, decently covered, to the place of burial’; and in Scott vs. Riley (1883) 16 Phila. (Pa.) 106, it was said that the common law casts the duty of burying the dead in the proper manner and place upon the person under whose roof the death occurs. * * ®
“In Finley vs. Atlantic Transp. Co. * * * 220 N. Y. 249, L. R. A. 1917E, 852, 115 N. E. 715, the court said: ‘At common law it is the duty of an individual under whose roof a poor person dies to carry the body, decently covered, to the place of burial, and to refrain from doing anything which prevents in any wise a suitable burial. The body cannot be cast out so as to expose the same to violation or to offend the feelings or injure the health of the living’.”

The record in this case shows that the relatives of none of these deceased patients claimed the body.

The court is of the opinion that under such circumstances, the State, having a proper regard for the sensibilities of the public, for the protection of those rights which are held sacred by all Christian people, and due consideration for the health of the people, cannot evade a duty which by the common law is imposed upon all citizens.

From the foregoing we conclude that under existing statutes, the obligation to support the inmates of the Alton State Hospital rests in the first instance upon the State; that under the decision of the Town of Kankakee vs. McGrew, the obligation to support includes the obligation to bury deceased patients whose relatives do not claim the body; that even if there were no statutory provisions relative thereto, there is a common law obligation on the part of the State to provide a burial for patients dying at a State hospital for the insane, where no relatives claim the body.

Therefore, we are of the opinion that the claimants would be entitled to recover from the State in a suit at law, if the State were suable, and consequently they are entitled to an award in this proceeding.

Award is therefore entered in favor of the claimants for the sum of Nineteen Hundred Twenty-five Dollars ($1,925.00).