author: Mb. Justice Tantis

text:
    (No. 3066
    Ludwig Ruppert, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1939.

    Paul D. Pebona and Josef T. Skinneb, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Tbevob, Assistant Attorney General, for respondent.
   Mb. Justice Tantis

delivered the opinion of the "court:

Claimant seeks damages from the State in the sum of Five Thousand ($5,000.00) Dollars, alleged to have been caused as indirect damage to property not taken and arising out of the construction of a viaduct by respondent on Spaulding Street in the City of Spring Valley, Illinois. The property in question is at the south edge of Spring Valley and was bounded by Spaulding Street on the west, on the south by the Chicago, Bock Island & Pacific Bailway Company’s right-of-way, on the east by the Chicago & Northwestern Bailway Company’s right-of-way, and on the north by Illinois Street. The latter is in common use by the general public but is an unimproved street. There is an entrance-way to the Northwestern Bailroad Station from it, and the Standard Oil Company uses it as an entrance to the Bulk Station which is located east of the Buppert property. For twenty-five years Illinois Street was used as a means of ingress and egress to the Buppert property and has been open to the general public during that time. There has been no material change as to such ingress to the Buppert property from Illinois Street since the construction of the viaduct referred to.

Plaintiff bought the property described in the Petition in 1907. At that time there was a two-story grain elevator on it and a flour and feed shop and three big com cribs. Also, it had a stub or spur connection with the Northwestern Bailway and this railway spur still extends to the property. At the time claimant bought the property the elevator included a little office building and an engine house and was fully equipped to do business. It was not being operated as an elevator but for the storage and shipping out of grain on the Northwestern Bailway.

Claimant testified that he bought the property both for the property itself and for the flour, grain and feed business that existed in connection therewith. He paid Six Thousand ($6,000.00) Dollars for the business and the property on the 13th day of June, 1907, and on the 13th day of August, the buildings were destroyed by fire. Same were never rebuilt, but in 1909 or 1910 he contracted to sell the property to a wrench manufacturing company, which began the foundation for a building but soon after abandoned the project. In 1912 Spaulding Street was paved and plaintiff paid Six Hundred One ($601.00) Dollars for the cost of the improvement in front of his property. About 1934 a new bridge was constructed across the Illinois Biver making an arterial highway of Spaulding Street through the City of Spring Valley. About a year after the bridge was completed a viaduct was built northward from the newly constructed bridge for the purpose of passing over the Bock Island main tracks. This viaduct runs above Spaulding Street and has a gradual grade which starts forty or fifty feet north of claimant’s property, i. e. such elevation starts somewhat north of Illinois Street and the elevation gradually rises until it passes claimant’s property. Prior to the construction of the viaduct the paved street, known as Spaulding Street, ended at the Rock Island Railroad and at that time the Ruppert property was at an elevation of about six or seven feet above the road level. This variation in levels changed as one went to the north line of claimant’s property, so that the north fifty or sixty feet of the Ruppert property was or could have been accessible from Spaulding Street.

Claimant contends that the remainder of his frontage on Spaulding Street was accessible thereto, and that such possible ingress and egress along the full length of Spaulding Street has been lost by virtue of the construction of said viaduct, and that his property as a result thereof has been damaged in excess of Five Thousand ($5,000.00) Dollars. A number of witnesses have testified respectively for claimant and respondent, both as to the accessibility of the property and its possible use, and as to its value before and after the construction of the viaduct. It is not necessary to review in detail the testimony of each witness. Suffice it to say that from a consideration of all the evidence in the record, it becomes apparent to the court that the property in question, both before the construction of the new bridge over the Illinois River and the new viaduct, and since such construction was completed, is best adapted for storage and factory purposes, and that the possible use thereof for such purposes has not been materially changed by virtue of the construction of the viaduct. Further, that the accessibility of said property has only been affected to a limited degree for it appears that ingress can still be had to the north forty or fifty feet of said premises, from Spaulding Street, and that in order to have had such ingress to the balance of the property prior to the construction of the viaduct, it would have been necessary to have expended a substantial sum to have graded the property so as to permit entrance from said street. Plaintiff paid Six Thousand ($6,000.00) Dollars for the premises as a piece of improved real estate, which at the time was a site of a good business enterprise. We can only estimate the value of the bare real estate, after the grain elevator was destroyed and the flour, feed and grain business no longer existed, by the price at which plaintiff himself valued the premises at the time of his offer to sell the premises. This, he placed at Two Thousand ($2,000.00) Dollars. The proof of value of said premises prior to the construction of the viaduct, as testified to by some of his witnesses, were frankly the expressions of his own view as suggested to the witnesses, and according to their statements were governed in part by the prospective increase in travel which would be brought past these premises by an improved through highway on the level of Spaulding Street, instead of over a viaduct at a higher elevation along and above such street. This does not form a proper basis upon which to prove the value of the premises before the construction of the improvement in question.

From a consideration of all the evidence in the record, and from a personal inspection of the premises by the court, we conclude that the property has been damaged because of loss of frontage approach, and the interference with ingress to the property from Spaulding Street in the sum of Bight Hundred Fifty ($850.00) Dollars. An award of Eight Hundred Fifty ($850.00) Dollars is hereby made in favor of the claimant.


source: Caselaw Access Project

author: Me. Justice Linscott

license: Public Domain

text:
    (No. 3030
    Evelyn McIntosh, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 22, 1939.

    Habéis B. Gaines, for claimant.
    John B. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

The complaint in this case alleges that the claimant was the wife of Theodore McIntosh, deceased; that on, and for a long time prior to August 7, 1936, Theodore McIntosh was an enlisted member of the 8th Regiment of the Illinois National Guard, serving with the rank of sergeant; that on the day last mentioned, he, with other members of his regiment, was ordered by bis superior officers to engage in Field Training maneuvers with the Howitzer Co. 8th Infantry Illinois National Guard in the State of Michigan; that he served from then, until August 22nd of the same year.

The complaint alleges, as supported by the proof, that on and prior to August 7, 1936, the deceased was in good, sound physical condition; that between August 7, 1936 and August 22, 1936, while serving with the said company, the deceased became ill with physical disorders of his abdomen as the result of his military services, and while performing activities requiring severe exertion, and strain, to-wit: heavy marching and handling heavy field equipment; that upon his return to his home on August 22, 1936, he was still suffering from said illness; that as the result of said illness or said injury, he was confined to his bed immediately upon his return to his home, and became progressively worse until August 24, 1936 when he attempted to report his illness to military authorities; that because of an alleged disruption of telephonic communication, claimant did not succeed in reporting the illness or injury to the military authorities until August 26,1936, and on that day deceased was removed from his home to the military hospital at Fort Sheridan, Illinois, and as .a direct result of said illness said deceased died on August 30, 1936 at the military hospital at Fort Sheridan, Illinois.

The widow claims compensation for the death of Theodore McIntosh “which said death occurred while deceased was engaged in line of duty with said military forces of the State of Illinois.” No specific amount is claimed.

It will be noted that the complaint does not make any specific averments as to the kind of illness or the cause thereof. From the evidence of the widow, it appears that the deceased had had no previous illness and had always been in .good health; that during the time that the deceased was engaged in Field Training maneuvers, other soldiers in the same company and regiment were stricken with dysentery, which caused disablement for varying periods of time; that during the time that the deceased was in encampment, on to-wit: August 18, 1936, he was stricken with what his comrades thought was dysentery; that his illness continued during the remainder of the encampment and upon returning to his home the deceased took to his bed, growing gradually worse until he was sent to Fort Sheridan Military Hospital on August 26, 1936, where he died from acute gangrenous appendicitis and peritonitis.

Our attention is called to Section 142 of Chapter 129 Illinois Revised Statutes 1937, the same being the Military and Naval Code of the State of Illinois, which provides as follows:

“Any officer or enlisted man of the National Guard or Naval Reserve who may be wounded or disabled in any way, while on duty and lawfully performing the same, so as to prevent his working at his profession, trade or other occupation from which he gains his living, shall be entitled to be treated by an officer of the medical department detailed by the surgeon general, and to draw one-half his active service pay, as specified in Sections 3 and 4 of this article, for not to exceed thirty days of such disability, on the certificate of the attending medical officer; if still disabled at the end of thirty days, he shall be entitled to draw pay at the same rate for such period as a board of three medical officers, duly convened by order of the Commander-in-Chief, may determine to be right and just, but not to exceed six months, unless approved by the State Court of Claims.”

Claimant makes the argument that there seems to be no question but that the deceased died from an illness or injury occasioned or received in line of his official duty as a member of the National Guard of the State of Illinois; that the evidence is uncontradicted throughout the whole record on that score; that a military board was convened by the military authorities to inquire into the cause surrounding the death of the deceased, and the finding of this board was “that the deceased, Sergeant Theodore McIntosh, was afflicted with an illness, incurred in line of duty.”

The deposition of Claudius L. Forney was taken on behalf of the claimant. He testified that he lives at 363 E. 51st Street, Chicago, Illinois; that in 1927, he was licensed to practice medicine in the State of Illinois, and has been a practicing physician in the State of Illinois since that time; that he spent two years as in interne in the County Hospital in Chicago before receiving his license; that he is a graduate of the Ohio State University and a Post Graduate of the University of Chicago; that he had been a member of the staff, department of surgery, of the Provident Hospital, and was a member of the staff of the Cook County Bureau of Public Welfare Physicians, and that he was a medical officer of the Eighth Regiment, Illinois National Guard. He further testified that as a medical officer for the second battalion, he treated the deceased during the encampment in Michigan; that the deceased was a young man, in his late twenties. (His age was twenty-nine years his last birthday, and the record shows that the deceased weighed about 180 pounds.)

Dr. Forney further testified that during the encampment in Michigan in 1936, there was a general epidemic of gastrointestinal upset, which they called dysenterjq but they were never able to locate the germ to make a proper diagnosis, except a general epidemic of dysentery. This disease had been prevalent in the locality where the camp was located, before they went to camp, and its probable source was through the water. Almost every member of the National Guard was afflicted to some degree, and the hospital was ■overcrowded. The doctor testified that the deceased being assigned to the second battalion, came under Dr. Forney’s care and he, the doctor, had diagnosed the case as dysentery, along with the rest of the intestinal upset. He could not recall how many times he had seen him, but this doctor gave as lfis opinion, based upon a reasonable degree of medical certainty, that the deceased who had been encamped at Pearl, Michigan, for several days in outdoor tents, during an epidemic of dysentery, had dysentery; that after a few days encampment at Pearl, this organization broke camp and proceeded, partly by forced marches, on foot and by trucks, stopping for over night bivouac en route, to Camp Custer, "Michigan, that the activities of this organization included living in outdoor tents, having strenuous field exercises, in addition to the usual routine of soldiers.

A hypothetical question based upon these facts was put to Dr. Forney: Assuming doctor, that on the 18th day of August, 1936, during the said field training at Camp Custer, Michigan, the deceased, (who is referred to as a hypothetical man) became ill and complained of stomach disorder; that "he was examined by a medical officer of the organization who found him to be suffering from gastro-intestinal disorder to the extent that the soldier was unable to perform his assigned duties; that on the 21st day of August, 1936, camp was broken at Camp Custer, Michigan, and they proceeded to their homes in Chicago, by train and boat, with short foot marches incident to reaching the said transportation facilities, and in reaching the armory of this organization after the arrival of the boat in Chicago; that en route from Camp Custer, Michigan to Chicago, Illinois, the deceased, still complained of his illness and was not able to carry his pack and individual equipment as was required by other members of the organization. The hypothetical question further assumed that upon arrival of the soldiers at 3517 Giles Avenue, Chicago, Illinois, on August 22, 1936, deceased was still complaining of pains in the region of the abdomen; that shortly after the arrival at the armory, he went to his home, where he went immediately to bed and remained in bed at his home from August 22 to August 25th of that year, during which time the deceased refused to eat food prepared for him and complained of violent pains in his abdomen and side. On August 26, 1936, this soldier was transferred by ambulance from Chicago to the station hospital at Fort Sheridan, where his case was diagnosed as appendicitis, acute, gangrenous peritonitis, acute, generalized, caused by appendicitis. On the same day, an appendectomy operation through the right rectus incision with one rubber drain inserted was performed under procain anesthesia. The deceased died at 1:30 in the morning on August 30,1936, at the station hospital at Fort Sheridan, Illinois.

With these facts in mind, Dr. Forney based his opinion upon his knowledge and experience as a physician and surgeon, and stated that it was his opinion based upon a reasonable degree of medical certainty that there was a direct causal connection between the illness with which the deceased was afflicted at Camp Custer, Michigan, on or about August 18, 1936, and subsequently thereto, and the condition of ill-being found when he was admitted to the hospital at Fort Sheridan. He also stated that inasmuch as the appendix is part of the gastro-intestinal tract, any illness so intensive as a dysentery would involve the whole gastro-intestinal tract, and in his opinion the appendix would be involved, especially where one was living under the conditions that this soldier lived, and that these conditions were conducive to continuing the irritation of the appendix and the rest of the gastrointestinal tract; that in civilian life, a person suffering from a gastro-intestinal disorder would he put in bed, and put on liquid diets and kept quiet. This man was subjected to camp duties, such as marching and if he took food he had to take the coarse food that is provided at camp. The coarse food and living conditions were responsible for the result of the appendicitis. At Fort Sheridan, the deceased, was found to be suffering from gangrenous appendicitis and peritonitis. The gangrenous condition followed the appendix condition and peritonitis did not set in until the appendix became gangrenous and ruptured. During this period of time all the soldiers in the National Guard were on routine army rations, and no provisions were made for preparing special diets for sick soldiers. It was very dusty there, and the food was frequently full of dust and grit, and after those long marches they had to eat dust, grit and all, which was also a possible source of infection and irritation to the gastro-intestinal tract. A well person might get along fairly well, but one who was suffering from intestinal trouble should have had a more careful diet. The doctor gives as his opinion that the food conditions aggravated the conditions of the deceased.

Under the evidence in this case, we are of the opinion that there is a direct causal comiection between the illness of the deceased suffered at Camp Custer, Michigan, and the conditions found by the operating surgeons at Fort Sheridan.

Deceased had been employed at a CCC camp at Palatine, Illinois for about eighteen (18) months prior to the time of his death and received a compensation of Forty-five Dollars ($45.00) per month, together with his board. Before that, he was an automobile mechanic and earned Forty-five Dollars ($45.00) per week, and the record shows he supported a wife and that they had no children.

In view of all the facts and circumstances, we are of the opinion that the dysentery suffered by the deceased was contracted at camp and the medical testimony is to the effect that the appendix was aggravated and that there is a causal connection between the ailment that he suffered and his death, and the public at large was not exposed to this ailment as he was.

We, therefore, make an award in favor of Evelyn McIntosh, wife of the deceased, in the sum of Four Thousand Dollars ($4,000.00) and recommend that the legislature make an appropriation for this amount.


author: Mr. Chief Justice Hollerich

text:
    (No. 3223
    Village of Deerfield, a Municipal Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 22, 1939.

    George S. McGatjghey, for claimant.
    John E. Cassidy, Attorney General,; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

The Village of Deerfield, a municipal corporation, seeks an award in the amount of Eight Hundred Thirty-two Dollars and Eighty-three Cents ($832.83), being the amount paid by it to the respondent as a tax on gross sales of water made by claimant during the period from September 10th, 1935 to February 6th, 1937, inclusive, pursuant to the provisions of an Act entitled “An Act in Relation to a Tax Upon Persons Engaged in the Business of Transmitting Telegraph or Telephone Messages, or of Distribution, Supplying, Furnishing or Selling Water, Gas or Electricity,” approved June 27th, 1935, commonly known as The Public Utility Tax Act (SmithHurd Ill. Rev. Stat. 1935, Chap. 120, sec. 440 et seq).

Such Act was declared unconstitutional by the Supreme Court of this State in the case of City of Chicago vs. Ames, 365 Ill. 529, and claimant contends that the payments made by it as aforesaid were made under a mistake of law, and under the provisions of Section 445 of the aforementioned Public Utility Tax Act, should be refunded.

The Attorney General has moved to dismiss the claim, and the case now comes before the court on such motion.

The identical question here involved was before this court in the case of City of Oglesby vs. State, No. 3097, decided at the November Term, 1938, in which case we held that the claimant was not entitled to a refund of the payments made by it.

The facts in that case were similar to the facts here involved; the case was fully considered by the court, and the rule there laid down governs us in the decision of this case.

For the reasons set forth in the case of City of Oglesby vs. State, ante, the motion of the Attorney General must be sustained and the case dismissed.


text:
    (No. 2598
    Lawrence F. Rau, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 22, 1939.

    Markman, Donovan & Sullivan, 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:

Claimant is the owner of a tract of land situated on the east side of Halsted Street, between 136th Street (also known as Riverdale Road) and 138th Street, containing approximately 16.44 acres.

Such tract lies about six blocks south of the Little Calumet River which, at that point, is the southern boundary line of the City of Chicago, is immediately south of the right-of-way of the B. & O. Chicago Terminal Railway (hereinafter referred to as the “Railway”); is within the corporate limits of the Village of Riverdale, is about one mile from the City of Blue Island, two miles from the City of Harvey, and three-quarters of a mile from the I. C. Suburban Station. It has a frontage of approximately 1,300 feet on Halsted Street, and at the time of the mating of the improvement hereinafter referred to, there was a gasoline filling station, an onion house,, a garage, a barn, and some chicken houses thereon, all located near the northwest corner thereof.

Halsted Street as originally laid out ran due north and south past the claimant’s property. 138th Street runs east and west on the Township line. At the intersection of Halsted Street with 138th Street, there was originally a jog to the west of about Two Hundred feet.

During the year 1927 the Highway Department of the respondent, in order to eliminate the right-angle turn at the intersection of 138th and Halsted Streets, re-routed certain portions of Halsted Street as it then existed, so that in going from north to south at a point about twelve feet north of the center line of 136th Street, the roadway curved to the west and proceeded in a southwesterly direction and joined the original Halsted Street again at 148th Street, at a point about 200 feet west of the original intersection. The new roadway was constructed at grade, and as a result of the change thus made, Halsted Street between 136th and 138th Streets had two branches, to wit, the original highway, which extended directly south to 138th Street, and the new curved highway which curved to the southwest and intersected 138th Street about 200 feet west of the first mentioned branch. Both branches joined at a point south of the Railway right-of-way, and crossed the railway tracks at grade.

Halsted Street, which is also known as Illinois Route No. 1, is one of the main north and south arterial highways in . Cook County. It begins at Lake Michigan, about six miles north of Madison Street in the City of Chicago, and extends due south the entire length of the City, then proceeds through Riverdale, Harvey, Chicago Heights and Steger, to the County line.

During the year 1934 a viaduct was constructed over the ' Railway, and in 1935 the approaches thereto were completed, and the course of Halsted Street was again slightly modified. The new roadway was slightly to the west of that branch of Halsted Street which was constructed in 1927.

After the construction of the viaduct the grade crossing of Halsted Street was closed and a barrier built across Halsted Street just south of the right-of-way line of the Railway.

The property on both sides of Halsted Street for practically its entire length through Chicago and the suburbs has been subdivided, with the exception of a small tract around 107th Street, another small tract near 111th Street, and the property immediately between the Rau property and the city limits of the City of Chicago.

The elevation of the viaduct at the center of 136th Street is 17% feet above the level of the previous roadway, and the approach to such viaduct descends gradually in a southerly direction to a point 550 feet south of the center of 136th Street, at which point the elevation is substantially the same as it was prior to the construction of the improvement.

Claimant maintains that his property has been damaged for public use, without just compensation, and that under the provisions of Section 13 of Article II of the Constitution, he is entitled to compensation therefor in the amount of $50,000.00, and alleges in his brief that his claim for damages is based on the following items, to wit:

1. “The elevation of the roadway of Halsted Street in front of his property.”
2. “The closing of the arterial public highway to which his property had immediate access and which added greatly to the value of his property.”

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. The Constitution of 1848 provided that private property should not be taken for public use without just compensation, but made no provision for compensation in cases where private property was damaged but not taken. This resulted in hardship in numerous cases, and in order to remedy the situation, provision was made in the Constitution of 1870 requiring compensation to be paid for private property which was damaged but not taken for public use.

The legal questions involved in cases of this kind have been before our courts in numerous cases, and the underlying principles have been definitely established and determined. The following rules have often been announced and applied:

1. In considering what additional classes of cases the framers of the present Constitution intended to provide for, the rule is, that it was not the intention to reach every possible injury that might be occasioned by a public improvement; that to warrant a recovery it must appear there has been some direct physical disturbance of a right; either public or private, which the plaintiff enjoys in connection with his property and which gives to it an additional value, and by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally.
Otis Elevator Co. vs. City of Chicago, 263 Ill. 419-424.
City of Winchester vs. Ring, 312 Ill. 544-552.
Illinois Power & Light Corporation vs. Talbott, 321 Ill. 538.
Schuler vs. Wilson, 322 Ill. 503.
2. The construction of a viaduct or embankment in a street, or a change of grade thereof, which obstructs or injuriously affects access to or egress from adjoining property, whereby the same is damaged, gives1 the owner a right to recover for the damages so sustained.
Rigney vs. City of Chicago, 102 Ill. 64.
Chicago vs. Jackson, 196 Ill. 496.
Chapman vs. City of Staunton, 246 Ill. 394.
Barnard vs. Chicago, 270 Ill. 27.
3. Any damage resulting to an abutting owner on account of the increase or diversion of traffic from the vicinity of his property is not such damage as entitles the owner to compensation therefor.
Hohmann vs. City of Chicago, 140 Ill. 226-230.
City of Chicago vs. Spoor, 190 Ill. 340-348.
City of Chicago vs. McShane, 102 Ill. App. 239-243.
Cuneo vs. City of Chicago, 292 Ill. App. 235-240.
4. Depreciation in market value will not sustain a claim for damages to land not taken unless such depreciation results from a cause which the! law regards as a basis for damages.
Illinois Power & Light Corporation vs. Talbott, 321 Ill. 538.
Rockford Electric Co. vs. Browman, 339 Ill. 212.
5. The proper measure of damages in cases where property is damaged but not taken for public use, is the difference between the fair cash market value of the property unaffected by the improvement and the fair cash market value thereof as affected by it.
Brand vs. Union Elevator Co., 258 Ill. 133.
Dept. of Public Works vs. Caldwell, 301 Ill. 242.
Dept. of Public Works vs. McBride, 338 Ill. 347.

The difficulty in cases of this kind is not so much in determining the controlling principles of law, as in determining the facts in the case and applying the proper principles of law thereto.

Since 1930 claimant’s land has been used for the purpose of raising onion sets, and prior to that time for the raising of asparagus.

Claimant called three real estate experts as witnesses, each of whom testified that the highest and best use to which the premises was adaptable at the time of the construction of the viaduct in question, was for subdivision purposes. Respondent called two real estate experts who testified that the highest and best use to which the premises was then adaptable was for industrial, purposes. The experts on both sides testified as to the fair cash market value of the property prior to the making of the improvement and unaffected thereby, and its fair cash market value subsequent to the making of the improvement and as affected thereby.

The three expert witnesses for the claimant testified that in their opinion the property of the claimant was depreciated in value in the following respective sums, to wit: $33,850.00; $32,000.00; and $32,800.00. The claimant himself fixed the amount of such depreciation at $3,500.00 per acre.

One of the witnesses for the respondent fixed the amount of such depreciation at $3,000.00, and the other stated that in his opinion the property was worth as much after the making of the improvement as it was before.

In considering the opinions of the witnesses for the claimant as above set forth, the following facts must be borne in mind:

1. That there is a large amount of vacant property between claimant’s property and the south corporate limits of the City of Chicago; — one of the witnesses for respondent having testified that “from 87th Street south to 130th Street, with the exception of some business stores in Pullman, it is approximately 95% vacant.”

2. Such opinions were based in part upon the assumption, as testified by them, that as the result of the re-location of Halsted Street in 1927, the curve to the west commenced at a point approximately 500 feet south of the north line of claimant’s property, whereas it appears from the plat in evidence and the testimony of the State Highway Engineer that the curve from the original Halsted Street commenced at a point twelve feet north of the center line of 136th Street.

3. Such opinions were based in part upon the assumption, as testified by them, that the elevation of the approach to the viaduct came down to grade approximately at or just north of 138th Street, whereas it appears from the plat in evidence and the testimony of the State Highway Engineer that at a point 550 feet south of the center line of 136th Street the elevation was but two or three inches higher than the original pavement.

4. Such opinions were based in part upon the assumption, as testified by them, that the highest part of the elevation opposite claimant’s property was about twenty-five feet above the old grade, whereas it appears from the plat in evidence and the testimony of the aforementioned Highway Engineer that the highest point of the elevation was seventeen and one-half feet above the old grade.

5. Any depreciation in the value of claimant’s property, resulting from the re-location of 1927, cannot be considered in this proceeding as any claim therefor was barred prior to the filing of the complaint herein.

6. In considering the value of claimant’s property for subdivision purposes both before and after the construction of the viaduct, claimant’s witnesses considered the 16.44-acre tract as a whole. They stated, however, that they made no deduction for loss of valuation except for the Halsted Street frontage, but apparently they based their estimates on a frontage of approximately 1,300 feet, whereas the elevation of the highway as shown by the plat in evidence and the testimony of the State Highway Engineer, was limited to approximately the north 550 feet of such frontage.

The principal difference in the estimates of the several witnesses arises from the fact that the witnesses for claimant considered the property as subdivision property with business frontage on old Halsted Street, and valued it as such, while the witnesses for respondent considered the property as industrial property, and based their valuation upon such assumption.

We have carefully considered all of the evidence in the record, have made a personal inspection of the property in question, and are of the opinion that access to the property of. the claimant has been obstructed and injuriously affected as the result of the construction of the viaduct in question; and that the property of the claimant has been depreciated in value as the result thereof; that the damages to the claimant’s property as the result of elements properly considered in determining such damages, in accordance with the aforementioned principles of law, is the sum of Fifty-five Hundred Dollars ($5,500.00).

Award is therefore entered in favor of the claimant for the sum of Fifty-five Hundred Dollars ($5,500.00).


author: Mr. Justice Yantis

text:
    (No. 2534
    Schnepp and Barnes, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, May 9, 1939.

      Rehearing denied May 22, 1939.

    Brown, Hay & Stephens, 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 herein is a printing company incorporated under the laws of the State of Illinois, and has been eng’aged for a number of years in the business of printing and binding in the City of Springfield. During its operation it has from time to time done a large amount of printing for the State of Illinois. Shortly prior to November 10, 1931 competitive bids were called for by the State of Illinois through its Department of Purchases and Construction for furnishing and supplying what was known as sixth class printing. This call and the specifications and instructions issued thereon was to cover such printing over a period of six, twelve or eighteen months from January 1, 1932.

Claimant inserted in the proposal form submitted to it with such specifications, its itemized bid, stating therein that such proposal and bid were made, “in accordance with the advertisement, instructions and specifications furnished * * * which are hereby made a part of such proposal.” The blank form supplied by the State as a proposal sheet to be used by the bidder contained three columns in which the bidder might indicate the price at which he would do the work; same appearing as follows:

Claimant listed its offer in the first column and left all of the remaining columns blank. Thereafter, on November 25, 1931, after competitive bidding, the claimant entered into contract with the State of Illinois, signed by the president and secretary of claimant company and by the then Director of the Department of Purchases and Construction, by the then Superintendent of Printing and by Louis L. Emmerson, then Governor of the State of Illinois. That contract recited in part, as follows:

“That Whereas, the Director of the Department of Purchases and Construction * * * in pursuance of the statute * * * has heretofore advertised for proposals for furnishing and supplying Sixth Class printing to be furnished and supplied in full conformity, and in strict accordance with the specifications, instructions and proposal of the party of the first part, for the term beginning with the 1st day of January, 1932 and ending with the 30th day of June, 1933.” * * *
“The party of the second part agrees to pay to the party of the first part therefor in the manner provided by law, at the rates and prices set forth and mentioned in the proposal hereto attached.”

In the claim now under consideration claimant seeks an award in the sum of $85,091.64, claiming payment due for unpaid work alleged to have been performed under the terms of and pursuant to said contract in the amount of $66,521.19 and interest thereon at five (5) per cent from September 30, 1933 to April 30, 1939, because of alleged unnecessary and vexatious delay in payment, to the amount of $18,570.45. Incidentally involved is a supplemental agreement entered into between claimant and E. B. Dunigan, then Superintendent of the Division of Printing, in March, 1933, whereby claimant agreed to make the price per volume set of automobile lists, $1,227.50, instead of such charge being computed on the itemized figures quoted in the original specifications and proposal, which the record shows resulted in a cost of $1,700.00 per volume set.

The first orders apparently issued by respondent to the claimant for printing work after the making of the contract of November 25, 1931 was on November 14, 1932. Successive orders for printing of opinions and orders of various boards, miscellaneous blanks and pamphlets, bulletins, circulars, notices and automobile license list books, followed through November and December, 1932, and January, February, March, May and June of 1933.

All ,of the printing and binding was furnished pursuant to orders issued by whoever was the active Superintendent of the Division of Printing of the Department of Purchases and Construction of the State of Illinois at the respective times, and according to the record such printing and binding was done by claimant and the supplies in question were delivered by it to the various agencies of respondent as indicated in the orders. Bills were submitted prior to September 30, 1933 but payment has in fact not been made.

Notwithstanding the non-payment of previous bills, Schnepp & Barnes continued to print the volumes of motor lists after June 30, 1933, and received ten orders for same. Eight of these aggregated the sum of $12,001.37. The State also refused to pay for these items and a mandamus proceeding was brought in the Circuit Court of Sangamon County on July 19, 1934 to compel payment of the latter sum. After a contested hearing the Circuit Court awarded the Writ of Mandamus and on October 2, 1935 the said sum of $12,001.37 was paid.

After the foregoing mandamus proceedings were brought, claimant company printed two further sets of volumes of motor lists at a price of $3,726.20 and that bill was paid by the State of Illinois on September 13, 1934.

The complaint in the present suit was filed in the Court of Claims on November 1, 1934. Its purpose is to recover the amounts alleg’ed to be due and .unpaid up to June 30, 1933. The claim covers one hundred twelve (112) different items aggregating $71,369.77, of which forty-five (45) are for printing the motor list books, in an aggregate of $45,237.50. The balance of the claim covers, miscellaneous items as above suggested.

Thirty of the one hundred twelve (112) items involved, aggregate $20,278.99 and were ordered by H. L. Williamson, then Superintendent of the Division of Printing. It appears that all of such items were delivered after the change of administration in January, 1933. Eight (8) of the remaining items were ordered by T. E. Bland, Assistant Superintendent, subsequent to January 18, 1933 and aggregated $2,007.85. Fifty-three (53) items were orders issued by E. B. Dunigan, then Superintendent of. Printing, and aggregated $25,995.12, and twenty-one (21) items were ordered by E. T. Bank, Superintendent of Printing and aggregated $23,087.81.

Under the existing practice, stock paper was furnished by the State to the printer for certain types of work, and in recasting the credits in connection therewith, the claimant has conceded an allowance to be due respondent upon claimant’s bill by reason of such paper credit, in the sum of $4,848.58, leaving the net balance of plaintiff’s claim $66,521.19, pins its additional claim for interest figured to April 30, 1939 of $18,570.45. A number of contentions are made by the Attorney General in opposition to the allowance of any award herein. The first of such objections is that the complaint herein is not verified as provided by rule of court. Examination of the complaint discloses that such complaint is supported by proper bill of particulars and sworn verification, signed October 31, 1934 prior to the filing of the complaint. It is next contended that many items appearing in the bill of particulars do not come within the proper designation of sixth class printing as described by statutes of Illinois then and there in force.

A recapitulation of such classification is as follows:

“Second and Third Class:
“(a) The printing of the journals, including the daily journals of the Senate and House of Representatives and
“(b) Other printing for the General Assembly such as synopsis of bills, reports of Committees, and communications not comprehended within the first class;
“(c) Also the printing of the Session Laws and Reports of all officers, boards, commissions, institutions and departments, which are bound in cloth or leather, or partly in cloth or leather and partly in paper; shall constitute second and third class.
“Sixth Class:
“(a) All pamphlet work including circulars, synopsis and other similar work and
“(b) All reports and documents which are not bound wholly or in part in cloth, leather or other hard binding, including binding thereof, and not comprehended in any other class, shall constitute sixth class.
“Seventh Class:
“(a) All job printing and
“(b) All printing not otherwise classified including binding thereof, if ordered by the Superintendent of Printing, shall constitute seventh class.”
“1931 Cah. Ill. Rev. Stat. Chap. 127, Par. 14.”

The evidence herein discloses that the classification of types of printing was made in the Division of Printing at the time it sent out its respective orders.

John J. Donoghue testified that he is Acting Superintendent of Printing for respondent and has been connected with the printing department since March 17, 1933; that he is familiar with the various classes of printing and of the contracts made by his department during the time in question herein; further, that during the year 1932 the claimant did not have the contract for classes two and three, class seven or for the contract for binding; that the records in his office show that the Journal Printing Company had the contract for second and third class work, the Illinois Printing Company had the seventh class work and the Jefferson Company had the contract for binding. Mr. Donoghue testified that under the practice in the department, the classification of work, i. e. the determination as to the printer to whom various orders should be sent, was made by Mr. Dunigan, Mr. Bank, and himself, during their respective administrations. He further testified that when an order is issued for printing, his department makes an examination to see whether or not sufficient funds, remain in the appropriation for that particular expenditure to cover the printing involved in that order. The witness stated that he did not know whether that practice was followed prior to the time he became associated in the office in 1933. Upon examining the various exhibits or order blanks, upon which the several items constituting the present claim rest, Mr. Donoghue identified a considerable number as not being sixth class work but of such character as would be classified under second, third or seventh class. If all of these items should be excepted from favorable consideration herein, as counsel for respondent contends they should be, a deduction from the claim of $6,313.22 would result.

Nothing appears upon some of these exhibits by which one can be definitely informed as to what class the order should be placed in, other than the description itself of the work required thereunder. There are a number of these orders however which bear upon their face in bold type the identification of such matter as being in second, third or seventh class, or in several instances requiring cloth or leather binding which would definitely fix same as printing of the second and third class.

Under the provisions of Illinois law (Paragraphs. 10, 14, 15 and 18, Chapter 127, Cahill’s Ill. Bevised Statutes, 1931), it was obligatory upon the Superintendent of Printing to advertise for bids for the various types of printing work required by the State and to thereafter let separate contracts for each class. Claimant had a contract for sixth class printing. It did not have a contract for any other class, as appears in the record. No authority existed for placing orders with claimant for any printing work except that for which a contract had been awarded to it. The orders for such work other than that of the sixth class could just have validly been given to some outside printer who had never made a bid and who had never received any contract.

The claimant herein was accustomed to doing public printing for the State, and, we cannot but assume, was familiar with the type of work included in its bid of sixth class matter. It was directly advised by the class notations on certain of the orders that the latter were not items for which it held a contract. These specifically are:

Exhibit Amount
A- 4 ........................................... $3,469.91
A-10 ........................................... 497.28
A-ll — (apparent additional cost of binding)..... 200.00
A-20 ........................................... 6.20
A-29 ........................................... 67.66
A-37 ........................................... 14.46
A-38 ........................................... 28.08
A-43 ........................................... 31.50
A-46 ........................................... 13.23
A-47 ........................................... 8.58
A-48 ........................................... 7.45
A-49 ........................................... 43.13
A-50 ........................................... 21.93
A-52 ........................................... 6.00
A-55-........................................... 6.20
A-57 ........................................... 42.74
A-58 ........................................... 5.60
A-67 ........................................... 9.53
A-68 ........................................... 9.53
The total of the foregoing is................. $4,489.01

Counsel for claimant contend that where a governmental authority has the power to make a contract, although its officials may not strictly comply with each statutory requirement in the execution and performance of the same, yet where the State receives the thing of value and appropriates it to its use, it must be regarded as having ratified the contract and should be required to pay therefor, on the theory that the government cannot enjoy the fruits of the contract and at the same time refuse to pay therefor. In support of this contention claimant cites, People ex rel Chatterton vs. Secretary of State, 58 Ill. 90; McGovern vs. City of Chicago, 281 Ill. 264; City of East St. Louis vs. East St. Louis Gas Co., 98 Ill. 415; and Smyth Co. vs. Chicago, 294 Ill. 136.

Acceptance of the above rule would result in nullifying every requirement for public letting of State contracts, as a prompt performance of work could be done under such practice, and the State would then be obligated to pay for what its departmental official had irregularly and illegally obligated it to do.

The object of the statutory provision is to' prevent favoritism, corruption and extravagance in the awarding of public contracts, and we consider it the duty of the court to1 so administer and construe the law as to fairly and reasonably accomplish such purpose, and not to encourage a disregard of such restrictions.

For this court to give validity to bills thus incurred would be to circumvent the spirit, wording and purpose of the legislative act which requires that solicitation of bids shall be required in alloting the printing contracts of the State.

In Chatterton vs. Secretary of State, supra, the court found that the contract in question had not been obtained by fraud and collusion as alleged in the petition for mandamus; that the secretary had advertised for bids as required by statute and that the merchandise was equal in quality to the sample furnished with proposal for bid, and that the contract was in accordance with its terms. The court there said:

“Petitioner having furnished a thousand reams of the paper under the contract, in conformity to its terns, and there being no fraud, he is entitled to receive pay for that quantity.”

After thus upholding the contract as having been validly made, the court glided to the opposite conclusion, in recognizing’ the rig’ht- of the legislature to rescind the contract as to the balance of the contract for furnishing the remaining one thousand (1,000) reams of paper. In concluding its views the court said:

“It (the contract) was, perhaps, not absolutely void, as it was not made with a fraudulent intent.”

We cannot accept this decision as justifying an award for the items of printing for which no contract was held by plaintiff.

In this and in other cases cited by claimant, the parties seeking payment for goods or services, did so under contracts held by them, but which, it was contended, had been improperly made. In the instant case claimant had no contract for printing second, third or seventh class matter or for binding-books in leather or card-board, and the statutes expressly require that all printing must be done under contract and upon bids submitted.

The question of allowing recovery on the ground that the State is estopped to deny liability when it has accepted the benefit of the work, was considered at some length in the case of Green & Sons Co. vs. State, 9 C. C. R. 218, and we quote therefrom:

“Much confusion has arisen in decided cases on account of the failure to distinguish between two general classes of cases, to-wit: 1) Those involving contracts which although irregular, are within the authority of the political subdivision to make and do not violate any mandatory provisions of law; and 2) Those involving contracts which are either in excess of certain limited powers of such political subdivision, or are against public policy or are in violation of mandatory provisions of law.
“The legal effect of a contract made in violation of mandatory provisions of law, is set forth in an annotation appearing in 84 A. L. R., page 954, as follows:
‘By the weight of authority, where by statute, charter, or constitutional provision, the power of a municipality, or other political subdivision, to make a contract, is limited, particularly where it is limited to a certain mode or manner of contracting, and any other manner of entering into a contract, or obligation is expressly or impliedly forbidden, no implied liability arises against a municipality for benefits received under a contract entered into in violation of those mandatory provisions, for no liability can result as a matter of implication where the express provisions of the statute or constitution negative its existence.’
“The legal effect of a requirement that public notice of the letting be given, and that the contract be let to the lowest bidder is set forth in 19 R. C. L. p. 1068, Section 356, as follows:
'A statutory provision that all contracts of a municipal corporation above a certain afiiount shall be advertised in a designated manner and awarded to the lowest bidder is mandatory, and a contract of the designated amount cannot lawfully be made by a municipal corporation in any other way. If the municipal authorities disregard the statute and fail to publish the advertisement as required by law, or award the contract to other than the lowest bidder, a taxpayer of the municipality may have their action enjoined, and the contract although duly executed and signed, cannot be enforced by the other party thereto. Nor can recovery be had on a quantum meruit.’
“The question under consideration has arisen in piactically every State in the Union, and the decisions of the different States, and in many cases the decisions of the different courts of the same state are not entirely in harmony. The authorities on the question are reviewed in an exhaustive annotation to the case of Johnson County Savings Bank, et al. vs. City of Creston, 212 Iowa 929 reported in 84 A. L. A. 926, in which case the facts were quite similar to the present case.
“In that case suit was commenced by a paving contractor and its assignee against the City of Crestón to recover the contract price for repairing certain pavements. Code provisions required that all contracts for street improvements be let to the lowest bidder after publication as set forth in the Code. No publication was made and it was contended that the contract was illegal. Plaintiffs then amended by adding another count in which they sought to recover the equivalent of the contract price as the reasonable value of the labor and material furnished. In that case the court said:
‘The statute is peremptory that, ‘All contracts for the construction or repair of street improvements and for sewers shall be let in the name of the city to the lowest bidder by sealed proposals upon giving’ prescribed notice. The statute is a prohibition upon letting such contracts in any other mode. * * The city undertook to have the repairs in question made by contract. Having undertaken to have them made by contract, it was required to let the contract on competitive bidding. * * * It is a general principle that a municipal contract entered into in violation of a mandatory statute, or a contract in opposition to public policy, is not merely voidable but void * * * and that no contract for services rendered or goods furnished pursuant- thereto can be implied, nor may the acceptance of benefits thereunder be made the basis of a liability by estoppel. * * * A municipal contract let without competitive bidding, when the statute requires competitive bidding, is void, and no recovery may be had either upon the purported express contract or upon an implied contract to pay the reasonable value of the services or material furnished thereunder. * * * Manifestly the making of a contract may not be implied in a case in which an express contract is forbidden. * * *
‘To sustain the plaintiff’s contention would be to permit one to obtain from a municipality an illegal contract for doing work impossible of return and by performing it enable him to recover the reasonable value of the services and materials furnished — to nullify the law by evasion and indirection and to recover the value of the work done under a contract which the law prohibits.’
“The aforementioned annotation reviews cases from any states, some of which are cited by counsel for claimant. The decisions of our Supreme Court are in accordance with the weight of authority as set forth in such annotation, and inasmuch as our courts have passed upon the question, it will not be necessary" to rely upon the decisions of the' courts of other states. Some of the early cases in this State seem to support the contention of the claimant, but some of such cases have been expressly repudiated by the Supreme Court in the case of DeKam vs. City of Streator, hereinafter referred to; others have been impliedly overruled by such decisions; and still others upon careful analysis are distinguishable upon the facts from the later cases. In any event, if there is now any conflict between the earlier and the later decisions of our Supreme Court, the later decisions are controlling and must be taken to be the law of this State.
“In the case of Hope vs. City of Alton, 214 Ill. 102, the city had adopted an ordinance creating a legal department, which provided for a corporation counsel, and also provided that the city should not be liable in any case for the services of any attorney except the corporation counsel. Thereafter the council passed a resolution authorizing the employment of a certain attorney other than the corporation counsel, in connection with a number of damage suits then pending. Such attorney rendered legal services in such cases and afterwards commenced suit against the city to recover the value thereof. In that case the court held that the ordinance had the effect of a law within the corporate' limits, that the contract made by the City Council was prohibited by such law and therefore void, and that the city was not estopped from denying its liability thereon by reason of the fact that it had received the benefit of the services rendered. In the course of its opinion the court said:
‘Counsel say, however, that plaintiff might recover on the ground that when a city has power to make a contract in one way and exercises the power in a different mode, it will be estopped from setting up the illegal exercise of power when called upon to pay for what it has received under the contract. In other words, the proposition is that when a city gets what it had authority to get in some' way, it should pay for what it gets, whether it exercised the power in the prescribed way or not. The obvious answer is, that this contract was prohibited by a valid ordinance, and that the City Council had no right to make it in some other way or by some other method. The City Council had no authority, by any method or process, to agree that the city should pay for legal services to be rendered by the plaintiff, who was neither city attorney nor corporation counsel. The ordinance prohibiting such a contract was in full force and effect, and its operation as a law was in no manner affected by the resolutions. People vs. Latham, 203 Ill. 9.
‘It is further contended that the city is estopped to deny its liability by the acts of the city council and its officers. The doctrine of ultra vires is applied with greater strictness to municipal bodies than to private corporations. (1 Smith on Mun. Corp. Sec. 661.) Persons dealing with a municipal corporation are chargeable with notice of its powers to contract, and plaintiff was chargeable with notice of the ordinance in question. A municipal corporation is not estopped from denying the validity of a contract when there was no authority for making it. To hold otherwise would be to expose the taxpayer to all the evils which statutes or ordinances passed for his protection were designed to prevent. Cases where municipal corporations have been held to be estopped when acting in a private capacity in the performance of duties enjoined upon them are not in point in this case, both because the city had performed the duty by providing a law department, with officers to discharge its duties, and also because the contract was directly prohibited by the ordinance.’
"The question here involved was very thoroughly considered by our Supreme Court in the case of DeKam vs. City of Streator, 316 Ill. 123. The complainants in that case filed their bill against the City of Streator to restrain such city and its officers from paying further money to one G. L. Clausen, pursuant to the terms of certain contracts theretofore made between the city and Clausen whereby he undertook to design a sewer system for the city. No appropriation had previously been made by the City Council for the payment of such work.
“Upon completion of the work Clausen presented to the Board of Local Improvements his bill for his services amounting to $34,263.00, of which he had previously been paid $3,000.00. Thereafter the council ordered payment of the bill. In that case the court held that the contract was void because it was prohibited by law, and in considering the question there involved, said:
‘A contract expressly prohibited by a valid statute is void. This proposition has no exception, for the law cannot at the same time prohibit a contract and enforce it. The prohibition of the legislature cannot be disregarded by the courts. * * *
‘In many other cases contracts not prohibited by the express words of a statute but in violation of its terms have been held void, and it is a well established rule that where, from a consideration of all the provisions of the statute, the legislative intention clearly appears to declare an act unlawful no contract for the performance of that act can be enforced, and the rule applies to a contract to do an act contrary to the public policy of the State.’ ” * * *

We find that there was no authority for the printing work above enumerated in the sum of $4,489.01, and that an award in favor of claimant for such sum is not justified.

A further contention is made by counsel for respondent that because of certain negotiations between the Superintendent of Printing and the claimant in May, 1933, as a result of which claimant reduced the cost of the automobile lists to $1,227.50 per volume set that such action constituted a variance between the proposal submitted and the contract under which such printing was done, and that therefore the entire contract is invalidated. The record shows that a computation of the cost per volume set of such automobile lists under the itemized data contained in claimant’s proposal, was approximately $1,750.00. That no change was made in the detailed unit price for printing but that certain changes in the form and wording of the automobile lists was made under the later negotiations between the parties, as a result of which a price of $1,227.50 was arrived at for the books in question.

While we agree with the Attorney General that contracts should not be let upon one basis and thereafter give the successful bidder an advantage over other parties by lessening the burden of the work required, yet in the instant case it does not appear that the claim is based upon any higher charge than that recited in the prices fixed under the original contract, or that the claimant receives any benefit from the change in the form of the automobile lists as put into effect in 1933. If the claimant sees fit to seek payment for its work on a lower basis than his contract calls for, this court does not feel called upon to enforce the higher charge or to invalidate the entire contract therefor. Nothing appears in the original proposal or specifications as to the exact contents or quantity of printed matter to he found in such automobile lists, and we believe this objection is not good.

We therefore find:

1. That claimant and respondent entered into a valid contract on November 25, 1931, whereby claimant was to furnish certain printed matter of the sixth class to respondent for and during a term of eighteen (18) months, beginning with the first day of January, 1932 and ending with the 30th day of June, 1933.

2. That thereafter claimant did printing, binding and other incidental work for respondent prior to June 30, 1933 covering one hundred twelve (112) different items at an aggregate cost of $71,369.77.

3. That of said total of $71,369.77 the sum of $4,489.01 was invalidly incurred and claimant is not entitled to an award therefor.

4. That there is due as a credit against said total, as conceded by claimant, an allowance- because of paper stock furnished by the State, in the sum of $4,848.58.

5. That valid and sufficient appropriations were made for said printing, and that funds remained in said appropriations sufficient to cover the cost of said items from time to time as required; but that the appropriation out of which the claim in question could have been paid lapsed on September 30, 1933.

6. That claimant filed its claim in the Court of Claims November 1, 1934.

7. That the Court of Claims has been open to an adjudication of said matter continuously and from month to month since that time.

8. That the first of claimant’s testimony was not taken until January 5, 1939.

9. That while certain civil and criminal litigation is shown to have taken place in the interim, which involved matters pertaining to this claim, it does not' appear that claimant was prevented from pursuing its rights in this court at any time. The question of the amount due claimant has been an issue in this case, and the sum due has been one of the items of dispute. Under the conclusions reached by us, a reduction of $9,337.59 has been made in the claim, and interest on the balance is not justified.

Another factor as to the propriety of allowance of any interest on award herein is that subsequent to the time claimant became entitled to this money, the State became indebted to it for the further sum of $12,001.37 for printing* performed after June 30, 1933, for the payment of which, after the State declined to pay, claimant brought a mandamus suit and obtained a writ of mandamus, by which the State officials were compelled to pay said sum of $12,001.37. No question is raised in the record as to why the claimant did not include in its mandamus suit the entire debt which it then held against the State of Illinois. If it could succeed, as it did in compelling the State to pay by mandamus, a part of the debt then owing to it, it would appear that it could have secured a right for its entire claim. We therefore find that no sufficient grounds appear for awarding* interest to claimant by reason of alleged vexatious delays suffered by it in obtaining* the redress here awarded.

As we view the record, that portion of plaintiff’s claim for the sum of $62,032.18 comes within the rule heretofore announced in other cases, as being for work validly contracted and unpaid for, and for which payment should therefore be made.

“Where the facts are undisputed that the State has received supplies as ordered by it, and that such supplies were legally bought by the State, and that funds remained in the appropriation therefor at such time, and that claimant submitted bills therefor within a reasonable time, and due to no neglect or fault on the part of claimant, same were not approved and vouchered for payment before the appropriation from which the payment could have been made had lapsed, an award for the amount due will be made;”
Rock Island Sand & Gravel Co. vs. State 8 C. C. R. 165.

An award is therefore made in favor of claimant for the sum of $62,032.18.


author: Mb. Chief Justice Hollebich

text:
    (No. 2388
    Paul A. Yoggerst, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 22, 1939.

    Clarence B. Davis, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

Prior to and on June 6th, 1933 the claimant, Paul A. Yoggerst, was a sergeant in Troop F, 106th Cavalry, Illinois National Guard. On the last mentioned date, while participating in authorized military drill at the Coliseum in the State Fair Grounds at Springfield, Illinois, he was thrown from his horse and trampled, whereby he was injured in and about his right ankle, right arm, right shoulder and spine. He was under the care of Dr. David H. McCarthy of Springfield, his family physician, from June 6th to June 21st, 1933. Thereafter he was treated at the Illinois Research Hospital and the College of Medicine, Department of Neuropsychiatry, in Chicago.

Claimant was twenty-nine years of age at the time of the injury, was a single man and had no dependents. Prior to the time of his injury he was employed as a clerk in his father’s grocery store and market in Springfield, and was paid from $10.00 to $15.00 per week in addition to board and room.

About four months after the injury he returned to his former employment, and during the first few months thereafter was able to perform about half of his usual,duties. He was partially incapacitated for over a year after the injury, but the only permanent disability is in the, right arm. He participated in a horse show held at the State Fair Grounds on May 30th, 1934, and placed third in the Olympic Hurdles, and second in the Jumpers. He is still working as a clerk in his father’s grocery, and is earning slightly more at this time than he did at the time of his injury.

He continued on the active list with the Illinois National Guard until January 23d, 1939, when he was placed on the inactive list in the capacity of a second lieutenant.

At the time of the taking of testimony herein (March, 1939) he was able to perform the usual work incident to his employment, but would not have been able to perform the ordinary work of a laborer. Apparently his recovery has been complete as to all of his injuries except the injury to his right arm.

There was an injury to the muscles and nerves of the right arm and a severe contusion of the cervical spine which induced a' trauma of the brachial plexus, with a resulting atrophy of the muscles of the arm and forearm, from which there has been a partial recovery.

Claimant’s right to an award, is based upon the provisions of the Military and Naval Code of this State (Ill. Eev. Stat. 1937, Chap. 129), Sections 10 and 11 of Article XVI of which are as follows:

Sec. 10. "Any officer or enlisted man of the National Guard or Naval Reserve who may be wounded or disabled in any way, while on duty and lawfully performing the same, so as to prevent his working at his profession, trade or other occupation from which he gains his living, shall be entitled to be treated by an officer of the medical department detailed by the surgeon general, and to draw one-half his active service pay, as specified in Sections 3 and 4 of this article, for not to exceed thirty days of such disability, on the certificate of the attending medical officer; if still disabled at the end of thirty days, he shall be entitled to draw pay at the same rate for such period as a board of three medical officers, duly convened by order of the Commander-in-Chief, may determine to be right and just, but not to exceed six months, unless approved by the State Court of Claims.”
Sec. 11. “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 Commander-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. Pending action of the Court of Claims, the Commander-in-Chief is authorized to relieve emergency needs upon recommendation of a board of three officers, one of whom shall be an officer of the medical department.”

All medical, surgical and hospital services were performed by the respondent, and the claimant was paid the compensation to which he was entitled under the aforementioned provisions of the Military and Naval Code.

The only question now for consideration is the amount of compensation to which claimant is entitled for the injuries sustained by him as above set forth.

The only testimony in the record regarding the extent of claimant’s injuries is the testimony of the claimant himself,. and the testimony of the treating physician. From such testimony it appears that the claimant was totally and permanently disabled for approximately four months after the accident; that he was partially disabled for an additional period of over eight months; and that he has a permanent disability of his right arm.

Under all of the facts in the record, we feel that claimant is entitled to additional compensation in the sum of Ten Hundred Eighty-three Dollars ($1,083.00), and an award is therefore entered in favor of the claimant for such amount.


text:
    (No. 2794
    Moore Bros. Construction Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1939.

    Kramer, Campbell, Costello & Wiechert, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

This claim arises out of the construction of a part of S. B. I. Route 177, Section 109, which extends from the Junction with S. B. 1.15 in Okawville easterly seven and one-half (7%) miles to Station 449 in Washington County. From Station 449 Route 177 continued east through New Minden where it intersects Route 153.

The original survey for Route 177 was made by the Division of Highways in 1926. Two routes out of Okawville were indicated on the survey maps, a so-called east route and a north route. The Chief Highway Engineer indicated his opinion that the north route was the most feasible. Individuals interested in these two routes procured deeds for the respective rights-of-way for as much property as they could obtain. Deeds for the north route were never delivered to the Divisions, but such deeds were procured in an effort to induce the Division to select the respective routes.

On March 24, 1931 the Director of the Department of Public Works and Buildings and the Chief Highway Engineer entered an order officially locating the road over the east route. This road began at Station 28+00 in Okawville, went due east about three miles, then northeast about four miles to Station 120, from which point the road extended eastward to Station 449. Necessary right-of-way for this route was partly obtained by voluntary conveyances, and in February, 1932 the Department caused suit to be filed in the County Court of Washington County to condemn the right-of-way for the east route over such required lands as had not been deeded. July 1, 1932 the County Court entered judgment authorizing construction over the east route and awarded damages in excess of $2,500.00, which together with court costs and other expenses was raised by the people of the community, in a total sum of over $3,500.00.

On September 30, 1932 the Department awarded a contract to George B. Richardson of Decatur for the construction of the Plum Creek Bridge just east of Okawville on said route; also a contract to claimant for constrnction of culverts, grading, concrete pavement, etc., for such east route and extending eastward from Station 120, at a total project cost of $128,329.60.

October 13, 1932 claimant began construction operations. October 20, 1932 a contract for the project was executed by the claimant and the Department of Public Works and Buildings. This contract provided that claimant would complete the project on or before June 15, 1933. Claimant sub-contracted all grading operations to A. L. Brady, and the subcontractor moved in his equipment and began operations November 7th. Richardson began operations on the Plum Creek Bridge on January 11, 1933, using a crane owned by claimant. Prior to January 17, 1933 claimant ordered cement from various companies and on the latter date cancelled the order for the unshipped balance of 23,978 barrels with the Alpha Portland Cement Company, and was authorized to order same from the Marquette Cement Manufacturing Company.

Meanwhile, citizens of the community who were interested in the north route continued their efforts for a relocation over the so-called north route. This portion would extend north out of Okawville from Station 28+00, and would then turn east for a distance of several miles until it reached Station 120, where the two disputed routes would intersect. January 18, 1933 the Highway Division ordered claimant to cease operations, and on the following day rescinded this order. The Attorney General rendered an Opinion to the Department under dates of January 25th, April 7th, and May 31, 1933; that the Department did not have power to change the location and could not acquire the right-of-way over the north route by eminent domain because it had already exhausted such power by locating the road and acquiring the right-of-way over the east route. On February 24,1933 claimant was notified by the Department through its District Engineer that no work was to be done on that portion of the contract west of Station 120, but that there were no restrictions in regard to the balance of the work. This restriction affected only the short disputed sections involved in the two proposed routes.

Article 3.2 of the Standard Specifications for Road & Bridge Construction, which was a part of the contract in question, provides that a Progress Schedule shall be filed by the contractor when requested. Under such schedule as submitted by claimant he agreed to finish the paving at Station 10+09, being a short section of pavement in Okawville just beyond the west terminal of the two disputed routes, by June 1, 1933. This date must be borne in mind when considering any change in plans, expense or any inconvenience which was caused by reason of the non-construction by claimant of the disputed section of paving. Claimant R. J. Moore testified that of the equipment that was on the job west of Station 120 none was used on any other work until after it was released on July 10, 1933; that the culvert equipment was idle until July 10th and that the other equipment was idle up to April 15,1933.

The controversy over the north and south routes was taken by appeal to the Supreme Court and on February 21, 1935 an Opinion was filed by the latter, the case being entitled “The Department of Public Works & Buildings vs. Adolph L. Bchlich, 359 Ill. 337,” wherein the court held that the Department had no authority to change the route, and the judgment of the Circuit Court of Washington County was reversed. On September 6, 1933 respondent, through the Division of Highways, notified claimant in writing that due to right-of-way difficulties it was understood that claimant would be unable to complete its paving on the portion of the work then in dispute, and that claimant was under no obligation to keep its equipment on this section after it had completed the work within the limits on which the right-of-way was settled. Claimant offered in 1935 to complete the work at an increased cost estimate, and on July 16, 1935 they were informed that if they proceeded with the work, it would have to be in accordance with the plans and at the unit prices stated in the contract. By agreement a cancellation of that portion of the contract pertaining to the section of road in dispute was effected, and claimant was released from performing such work, the release being without penalty and with the understanding that the contractors may proceed to secure judgment through the Court of Claims for any losses previously incurred, it being understood that claimant reserves all rights to file and prosecute a claim against the State for damages sustained, by reason of the failure by the State to secure the right-of-way, and for any other damages incident thereto. Conferences were had between the representatives of the Highway Department and claimant in an effort to arrive at what damages claimant may have suffered. The figures arrived at by the Highway Department, based upon rental value of equipment for the period of delay from June 19th to September 6th and for time allowance for A. P. Moore, G-eneral Superintendent, J. Gf. Moore, Foreman, and B. Stephen, Time-keeper, and workmen’s compensation insurance amounts to a total of $9,467.51. This was later corrected to $9,011.33. Sub-contractor Brady’s damages were estimated at $7,125.38. Claimant contends that its actual damages for itself and Brady by reason of extra cost for superintendents, rentals, etc., amounted to $13,483.27 and of the Sub-contractor Brady for whom it acts, of an additional sum of $11,176.35. Claimant contends that although Brady did not have a contract with the State, he had a sub-contract with the claimant with the permission of the State, and that the same rules which apply to claimant’s damage would apply to Brady’s. Claimant contends that the aggregate of the two sums is owing to the claimant and it is liable to Brady for the amount of Brady’s damage. The rental values as considered by the Highway Department were under cost of ownership schedules of the Associated General Contractors of America and are figured upon depreciation, overhauling, major repairs, painting, interest, taxes, storage and insurance. The rates shown in claimant’s Exhibits C, D and E are based upon the experience of contractors operating throughout the United States and engaged in many types of construction, including only in part highway construction. The record shows that a roadster for which credit was taken in claimant’s figures was available to claimant at all times for private use; that the Boss mixer and certain other equipment were peculiar in use for culvert and small bridge construction and are not to be confused with paving operations; that the trucks and Ford flat body were available for other paving work.

As the apparent decrease or shortening of the proposed pavement under the contract in question amounted to only 14.4 per cent of the total contract price, it would appear from the foregoing that the respondent had a right to cancel and leave out entirely the disputed section of highway, and that no allowance would be made to the contractor for any change in his anticipated profit under the contract. No contention to this effect has been made by the Attorney General however, and the only issue before the court is the proper measure of damages upon which to base claimant’s recovery, and the amount of the award to which he should, under the facts, be entitled.

Claimant contends that the least amount to which it should be entitled is the amount of damage estimated by the Highway Department in a conference between it and the representatives of the Highway Department. Respondent contends that the contractor had a right to either of two courses; to have finished the contract in full and then to have sued for the damage due to its being delayed; or, to decline as it did to complete its contract and to thereupon claim damages for what its profit would have been on the remainder of the work had it been permitted to have performed same in due time and without interruption by matters chargeable to respondent.

The change in the length of pavement resulted in a reduction in the total contract amounting to $22,930.53 or 14.4 per cent of the total contract price.

Article 4.3 of the Standard Specifications for Road and Bridge Construction which were a part of the contract in question provides:

“The Department reserves the right to alter the quantities of work to be performed, or to extend or shorten the improvement, provided the total price for all such alterations, extensions, or deductions does not exceed twenty-five (25) per cent of the original contract price, or contract price corrected as provided in Article 2.2. Should any of the changes provided herein be made, the contractor shall perform the work as altered, increased, or decreased at the contract price. No allowance will be made for any change in anticipated profits nor shall such changes be considered as waiving or invalidating any condition or provision of the contract.”

It does not appear that the right of the Department to alter, extend or decrease the proposed improvement must depend upon any certain grounds, but that the Department reserves the right to alter the contract for any cause so long as the alteration or deduction does not exceed 25 per cent of the original contract price; further, that no allowance will be made for any change in such case for anticipated profits. That portion which was cancelled from the contract of claimant was afterwards awarded to another contractor and constructed by him.

,, No substantial delay to claimant was caused by respondent as to any of its work under the contract except as to the disputed section. There was apparently however some delay because of other matters not chargeable to respondent, for claimant did not finish its paving operation at Station 120 until August 31st. It began paving at Station 28 September 2nd and finished the stretch of pavement in Okawville at Station 10+09 on September 5, 1933. On September 6, 1933 the Engineer in charge advised claimant that he was under no obligation to keep his equipment, particularly his paving outfit, on the section, if all the work within the limits on which the right-of-way was cleared, had been completed. Claimant agreed to a cancellation as to the balance of his contract and the court is of the opinion that the proper measure of damage sustained by it for the loss incident to such cancellation is the profit which claimant would have made had it been able to have proceeded with the construction of the remaining 14.4 per cent of the work for which it had contracted. Counsel for claimant in his Reply Brief (p. 12) concedes that, “If claimant had immediately quit work on February 24, 1933 and moved its equipment, that loss of profit would have been the basis of damages, but that it kept its equipment, maintained its overhead and did all the things which it did until July 12, 1933 and was then relieved of its contract and was told it could move its equipment and use it elsewhere (on other state contract work) which it did, stopping the damages.”

The fact remains that claimant elected not to complete its contract and under the rule laid down in the case of Guerini Stone Co. vs. Carlin, 240 U. S. 264, we believe the proper measure of damages is the loss of profits incurred. In that case the court said:

“There was testimony as to the profits that plaintiff probably would have gained if the contract had been proceeded with in the ordinary manner. But this question was excluded from the consideration of the jury upon the ground that the profits were contingent and speculative. In this there was error. The testimony was from an experienced witness, and included an estimate of the total cost to plaintiff of the doing of the work called for in sub-contract. This amounted to $53,012.00. The contract price was $64,750.00. The witness testified that a profit of $9,700.00 would have been made. Whether he intended to say $11,700.00 was for the jury to determine; No more definite or certain method of estimating the profits could well be adopted, than to deduct from the contract price the probable cost of furnishing the materials and doing the work. Phila., Wil. & Balt. R. R. vs. Howard, 13 How. 307, 344; Hinckley vs. Pittsburgh Steel Co, 121 U. S. 264.”

Claimant cites the case of Underground Construction Co. vs. San Dist., 367 Ill. 360, wherein claimant had a contract for construction work to be paid for in monthly installments. The installments not being paid when due, claimant discontinued the work until payments were made, whereupon it resumed and completed its work. A supplemental contract was made at the time the work was resumed, extending the time for completion, waiving penalty clauses against the contractor incident to the time limits, and further reciting that plaintiff claimed special damages by reason of such delay, for which defendant denied any right to recovery. After the completion of the work and settlement of the contract price, plaintiff sued the defendant for special damages resulting from the delay. The court held that damages for delay of work caused by failure to pay installments when due were within the contemplation of the parties as expressed in the contract, and that such delay in payment constituted ground for special damages. The court found however that the measure of such damages was provided for and limited by specific recitals in the contract, being restricted to wages of necessary watchmen and extra premium on bond, and the court reversed the judgment of the Appellate Court which had affirmed a judgment of the Superior Court of Cook County of $60,866.58.

This case does not, as we read it,-meet the contention raised by the Attorney General that the measure of damages in the instant case, wherein plaintiff saw fit to take a reduction in its contract and to abandon the construction of 14.4 per cent thereof because of the delay of respondent in furnishing right-of-way, should be the amount of profit which he would otherwise have made had he completed the contract in full.

Neither this case nor the others cited by claimant negative the rule that where contractor fails to complete his contract through the fault of the other party, the proper measure of damage would be his proportionate profit on the balance of the work in question.

The portion of the contract price which would have been paid claimant had it performed its entire contract, amounted to $22,930.53. The record discloses that claimant’s profit on the entire contract as originally awarded, was estimated at 17% to 18%. In addition to the percentage of-profit on the entire job, the evidence for the claimant shows that it lost an additional profit of $1,892.70 which it would have made by reason of the short haul on that portion of the project which it did not complete. Claimant’s profit on that portion of the contract which it rightfully abandoned because of respondent’s breach would therefore be 17% of $22,930.53 plus $1,892.70, to wit, a total of Fifty-seven Hundred Ninety Hollars and Eighty-nine Cents ($5,790.89).

A part of the work for which claimant would have been paid the sum of $22,930.53 would apparently have been done by the sub-contractor Brady, but there is nothing in the record which would form a basis upon which the court could apportion this sum or the profit therefrom between claimant and Brady. As conceded by claimant in its reply brief, the aggregate of the damages sustained by the two is owing to the claimant, and its liability to Brady is a matter between themselves.

Award is therefore hereby entered in favor of the claimant in the sum of Fifty-seven Hundred Ninety Dollars and Eighty-nine Cents ($5,790.89).


author: Mr. Justice Tantis

text:
    (No. 2416
    Mae Smilanich, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 26, 1939.

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

delivered the opinion of the court:

Claimant seeks an award of Five Thousand ($5,000.00) Dollars for alleged damages to Lot Six (6) in Block Three (3) in Hubbard’s Addition to the Village of Algonquin, Illinois, which she says resulted when the respondent through its Department of Highways, elevated the road on S. B. I. Route 62 along the frontage of said premises. The record indicates that the correct description should be the South Half of Lots Five (5) and Six (6). At any rate claimant’s property is in the Northeast Corner of the intersection of Route 62 and River Road and is a plot of approximately 133 feet on Chicago Avenue and 66 feet on what is known as River Road. Claimant bought the land in 1927 for Five Thousand Nine Hundred ($5,900.00) Dollars. At that time it was improved with a house, three rooms below and five rooms above. Before the construction work S. B. I. Route 62 was a gravel road 20 feet in width with an open ditch 1% feet in depth and 5 feet in width which extended the full length of claimant’s property. The elevation of the ground at the property line was approximately 5 feet higher than the center line of the road at the west end of the property, 10 feet higher at the east end of the house and 12 feet higher at the east end of the property.. At no place along the street was it possible to build a vehicular entrance. The house was an old two-story frame dwelling with upper and lower entrances facing Route 62; one was to the first floor and was approximately 6% feet above the center fine of the road before the construction work. The other entrance was approximately 10 feet east on the first floor and led to the second floor and was about 12% feet above the center line of the road before the construction work in question. An outside wooden stairway led from the entrance of the second floor to the ground line. Adjoining this was a concrete retaining wall approximately 5 feet in height and extending toward the center fine of Route 62 from the house for a distance of 17 feet, where it turned east and ran parallel with Route 62 for a distance'of 21 feet. Raising the road has made possible a vehicular driveway into the property at a point just east of where the house formerly stood. Claimant has torn down the old building, and the property is now unimproved except for a small shed which she later built at the rear of the premises. The County of McHenry through its Right-of-way Committee attempted to make a settlement with the owner at the time of the building of this highway. It offered to pay her Two Hundred Thirty-five ($235.00) Dollars as damages, and the State would fill her property up to grade level. Claimant declined this offer at the time and later requested the County to renew the offer which the County declined to do. Testimony was introduced by the parties and a report from the office of the Division of Highways appears in the record. In addition thereto, the court made a personal inspection of the premises in order to familiarize itself better with the evidence as it appears in the record. The testimony as to value is conflicting and confusing, and we do not deem it necessary to a decision of the case to review the evidence in detail. From a study of such evidence and from a personal inspection of the premises, the court finds that claimant has suffered resultant damages, to property not taken for public use, caused by construction of the public highway in question; further, that the proper measure of damages is the difference between the fair cash market value of the property unaffected by the improvement and its fair cash market value as affected by it.

From a consideration of all the evidence in the record and the personal inspection had of said premises, the court further finds that Five Hundred ($500.00) Dollars is a fair and equitable and legal allowance for the damages sustained herein.

An award is therefore hereby made in favor of Claimant Mae Smilanich in full recompense of said claim.