author: Mr. Chief Justice Hollerich

text:
    (Nos. 3146, 3147, 3148, 3149, consolidated
    Wabash Telephone Company, No. 3146, Illinois Valley Telephone Company, No. 3147, Illinois Telephone Company, No. 3148, Automatic Home Telephone Company, No. 3149, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1939.

    Hopkins,.Sutter, Halls & DeWolfe, for claimants.
    John E. Cassidy, Attorney GeneralMurray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Each and all of the above entitled cases are based upon similar states of fact, and involve the same principles of law, and upon motion of the respective claimants, have been consolidated for the purposes of this hearing.

The claimants seek to recover the respective amounts paid by them between July 1st, 1935 and January 14th, 1937, as taxes on their gross receipts from the transmission of telephone messages, pursuant to the provisions of The Public Utility Tax Act of 1935. (Smith-Hurd Illinois Revised Statutes, 1935, Chap. 120, Sec. 440 et seq.)

Such Act imposed a tax upon each public utility at the rate of three per cent (3%> of the gross receipts of such utility from the conduct of the business of transmitting telephone messages, and of distributing, supplying, furnishing or selling water, gas or electricity to persons for domestic or commercial consumption, and not for resale.

Section One (1) of the Act defined “gross receipts” as “the consideration received for the transmission of telegraph or telephone messages, or for water, gas or electricity supplied or furnished to persons for domestic or commercial consumption and not for resale,” and defined a “public utility” as “a person engaged in the business of transmitting telegraph or telephone messages, or of distributing, supplying, furnishing or selling water, gas or electricity for domestic or commercial consumption and not for resale. ’ ’

Section Six (6) of the Act provided as follows:

“If it shall appear that an amount of tax, penalty or interest has been paid which was not due under the provisions of this Act, whether as the result of a mistake of fact or an error of law, then such amount shall be credited against any tax due, or to become due, under this Act from the public utility which made the erroneous payment, or such amount shall be refunded to such public utility by the department.”

The Department of Finance of the respondent ruled that persons furnishing water, gas or electricity should be taxed only upon receipts derived from domestic or commercial consumers, but that persons engaged in the business of transmitting telegraph or telephone messages should be taxed upon receipts from other than domestic or commercial users.

In making payment of the tax, the several claimants stated that the payments were made under protest, but they failed to avail themselves of the remedy by injunction provided by an Act entitled “An Act in Relation to the Payment and Disposition of Moneys Received For or on Behalf of the State,” approved June 9, 1911, as amended. Illinois Revised Statutes, 1937, Bar Assn. Edition, Chap. 127, Par. 170 et seq.

The Wabash Telephone Company paid the total sum of $20,034.41, of which $1,779.05 was the tax on receipts from other than domestic or commercial purposes.

The Illinois Valley Telephone Company paid the total sum of $8,778.01, of which $729.69 was the tax on receipts from other than domestic or commercial purposes.

The Illinois Telephone Company paid the total sum of $10,227.96, of which $243.43 was the tax on receipts from other than domestic or commercial purposes.

The Automatic Home Telephone Company paid the total sum of $2,480.84, of which $302.34 was the tax on receipts from other than domestic or commercial purposes.

On October 27th, 1936 the Supreme Court of this State decided in the case of Illinois Bell Telephone Co. vs. Ames, 364 Ill. 362, that a company engaged in the business of transmitting telegraph and telephone messages in the State of Illinois should be taxed only upon receipts derived from domestic and comm'ercial services or uses.

Thereafter the Department of Finance of the respondent, pursuant to such decision of the Supreme Court, issued to each of the claimants herein, a “notice of credit,” stating that the account of such claimant had been credited in the amount set forth in such notice, and that said credit was due to the decision of the Illinois Supreme Court in the Illinois Bell Telephone Company case. The several amounts due the respective claimants in accordance with the aforementioned notices of credit, were as follows, to-wit:

Wabash Telephone Company....................................'...$1,779.05
Illinois Valley Telephone Company................................. 729.69
Illinois Telephone Company........................................ 243.43
Automatic Home Telephone Company............................... 302.34

On February 12th, 1937 the Supreme Court of this State, in the case of City of Chicago vs. Ames, 365 Ill. 529, held that the Public Utility Tax Act of 1935 was illegal and unconstitutional, in that it set up a classification for which there was no reasonable basis.

Thereafter the claimants filed their several complaints herein for the recovery of the total tax paid by them as hereinbefore set forth.

The complaint in each case is substantially the same, and consists of two counts.

The first count seeks the recovery of the total amount of the tax paid, and is based upon the following grounds, to-wit:

a) That the several payments were not voluntarily made, but were made under duress, and claimant is therefore entitled to the return thereof.

b) That the respondent is the recipient of monies to which it is not entitled in equity and good conscience, and the same should therefore be refunded.

c) That each of the payments were made as the result of a mistake of fact and an error of law, and that under the provisions of the aforementioned Section Six (6) of the Public Utility Tax Act, the same should be refunded.

The second count seeks the recovery of the several amounts which were paid as a tax upon gross receipts from the sale of services for uses other than domestic or commercial consumption, that is to say, .the several amounts for which a notice of credit was issued by the Department of Finance as hereinbefore set forth.

Subsequent to the filing of the complaint herein, the Department of Finance of the respondent refunded to the several claimants the respective amounts due them in accordance with the aforementioned notices of credit, and on August 15th, 1939, on motion of the several claimants, Count II of their several complaints was dismissed without prejudice to the rights of such claimants under Count I of their respective complaints.

The several cases now come before the court upon the allegations of Count I of the respective complaints, and the motion of the Attorney General to dismiss; — the statements of fact, as set forth in the complaint, being taken as true for the purposes of such motion.

The contentions of the claimants will be considered in the order above set forth:

I.

That the several payments were not voluntarily made, but were made under duress.

The question as to when assessments or taxes are considered to have been voluntarily paid has come before this court in numerous cases. In the case of Butter Co. vs. State, 9 C. C. R. 503, the question was exhaustively considered, and the authorities thereon were reviewed by the court. In that case we held, in substance, that:

a) The terms “voluntary” and “involuntary,” when used with reference to the payment of taxes, are not applied in their ordinary sense.

b) If a tax is paid voluntarily and with a knowledge of the facts, it cannot be recovered.

c) If the taxpayer has an adequate remedy in the courts of general jurisdiction, and fails to take advantage thereof, he cannot be permitted to say that the tax was paid involuntarily or under duress.

The decision in the Bntler case has been followed by this court in numerous cases since decided.

In the present case the claimants had an adequate remedy under the provisions of’an Act entitled “An Act in Relation to the Payment and Disposition of Moneys Received For or on Behalf of the State” (Ill. Rev. Stat. 1937, Chap. 127, Sec. 170 et seq.), paragraph 2-A of which provides as follows:

“It shall be the duty of every officer, * * * to notify the State Treasurer as to money paid to such officer, under protest, and the Treasurer shall place such money in a special fund to be known as the protest fund. At the expiration of thirty days from the date of payment the money shall be transferred from the protest fund to the appropriate fund in, which it would have been placed had there been payment without protest unless the party making such payment shall have filed a complaint in chancery and secured within such thirty days a temporary injunction restraining the making of such transfer, in which case such payment and such other payments as the court may direct subsequently made under protest by the same person, the transfer of which is restrained by such temporary injunction, shall be held in the protest fund until the final order or decree of the court.”

In the case of Ward & Co. vs. Stratton, 342 Ill. 472, the plaintiff filed a bill in chancery against the Secretary of State to require him to hold $19,971.50 alleged to have been illegally exacted from said plaintiff as an additional fee under the General Corporation Act, until the court could determine whether said sum was due the State. A demurrer was sustained to the bill and the case was dismissed .for want of equity. In affirming the decision of the Circuit Court, our Supreme Court (page 476) said:

“In determining whether the demurrer was properly sustained to this bill it will not be necessary to determine whether the fee of $55,701 was or was not legally assessed. Section 35 of Chapter 127b (Cahill’s Stat., 1929, p. 2469), in substance provides that 51II officers of the State shall hold for thirty days all money received for or on behalf of the State under protest, and on the expiration of such period deposit the same with the State Treasurer, unless the party making such payment shall within such period file a bill in chancery and secure a temporary injunction restraining the making of such deposit, in which case such payment shall be held until the final order or decree of the court. This statute provides a method by which money paid under protest to a State official may be recovered. It affords a complete and adequate remedy in a court of equity where all questions can be fully and speedily determined. It is the only statute on this subject to which our attention has been called. Appellant did not see fit to take advantage of the provisions of this statute and no reason or excuse is alleged in the bill for such failure.”

Although claimants in the present case allege that the payments in question were made under protest, they do not allege any facts showing that such payments were made under legal compulsion or duress, or were made as the result of any fraud or deceit.

Furthermore, claimants failed to take advantage of the remedy provided by the last mentioned Act of the General Assembly, and under the repeated decisions of this court we must hold that the tax so paid by the claimants was paid voluntarily.

II.

It is next contended by the claimants that the respondent is the recipient of monies to which it is not entitled in equity and good conscience, and that the same should therefore be refunded.

Apparently this contention is based upon Section 6, Paragraph 4 of the Court of Claims Act which provides that this court shall have jurisdiction “to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex-delicto, which the State as a sovereign commonwealth, should, in equity and good conscience, discharge.and pay.”

The question as to the proper construction of the foregoing paragraph was considered by this court in the case of Crabtree vs. State, 7 C. C. R. 207, in which case, after a careful consideration of the authorities on the question, we held that the foregoing paragraph merely defines the jurisdiction of the court and does not create a new liability against the State, nor increase or enlarge any existing liability; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable; arid that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.

The decision in the Crabtree case has been followed in numerous subsequent decisions of this court. Pelli vs. State, 8 C. C. R. 324; Ryan vs. State, 8 C. C. R. 361; Rehman vs. State, 8 C. C. R. 556; Simpson vs. State, 9 C. C. R. 321; Finney vs. State, 9 C. C. R. 327; Titone vs. State, 9 C. C. R. 389; Crank vs. State, 9 C. C. R. 379.

Under the facts set forth in the complaint, and the law as set forth under claimants’ first contention, the claimants would not be in position to maintain an action at law or in equity against the State if the State were suable, and consequently they have no right to an award in this case.

III.

It is next contended by the claimants that the payments in question were made as the result of a mistake of fact and an error of law, and that under the provisions of the aforementioned Section 6 of the Public Utility Tax Act, such payments should be refunded.

The Attorney General contends that inasmuch as the Public Utility Tax Act has been declared unconstitutional, Section 6 of such Act can have no force or effect, and consequently claimants have no right to recover thereunder.

The claimants contend that the Public Utility Tax Act is severable; that the objections urged to the constitutionality of the Act do not apply to said Section 6, and that they are therefore entitled to the benefit of the provisions of said section.

In the view we take of the case, it is not necessary to consider the contention thus raised. Assuming for the purposes of this motion only, and not deciding, that in a proper case, the taxpayer might have the benefit of the provisions of such Section 6, yet under the facts in the present case, such Section can have no application.

It will be noted that the provisions of Section 6, by the express terms thereof, apply only to cases in which the taxes paid, were not due under the provisions of the Public Utility Tax Act. In each of the instant casesj the taxes paid were due under the provisions of the Public Utility Tax Act, and therefore the provisions of the said Section 6 could have no application to such payments, even if the constitutionality of the Act had been upheld.

Furthermore, the question involved in the present cases was squarely before this court in' the case of City of Oglesby vs. State, No. 3097, decided at the November, 1938, term of this court. The facts in that case were substantially the same as in the present case, and the same questions of law were involved. The case was carefully considered by the court, and we there held that the payments in question were volun- . tarily made; and that the provisions of Section 6 of the Public Utility Tax Act had no application to the payments made by the claimant, and we therefore denied an award.

What we said in that case applies with equal force to the contentions made in the present case.

The decision of this court in the City of Oglesby case was followed in the case of Village of Deerfield vs. State, No. 3223, decided at the May, 1939, term of this court.

For the reasons set forth in the City of Oglesby case, as well as the reasons herein set forth, the motion of the Attorney General to dismiss must be allowed.

Motion to dismiss allowed. Case dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    (No. 3341
    G. A. Wolford, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1939.

    Rosco® C. Bonjean, 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:

It appears from the record in this case that on or about August 1st, 1938, one J. L. Todd, Superintendent of Maintenance of the Division of Highways of the Department of Public Works and Buildings of the respondent, entered into an agreement with the claimant whereby the latter agreed to furnish a team of mules, a driver, and a mower, and cut the weeds along the right-of-way of S. B. I. Route No. 10, near the city limits of Springfield, in Sangamon County; that on August 18th, 1938, while a certain! servant and agent of the claimant was cutting weeds on a steep bank on said right-of-way, pursuant to the aforementioned agreement, the mower ran into and struck the lower part of the right leg of one of the mules, whereby such mule was seriously and permanently injured, and claimant asks damages in the amount of $125.00 on account thereof.

The claimant has waived his right to file a Brief and Argument, and it is impossible for the court to determine upon what grounds he relies for recovery. The mules were being driven by a servant and agent of the claimant, and there is nothing in the record to indicate that the injury sustained by the mule in question was the result of any negligence on the part of any servant or agent of the respondent. Furthermore, this court has repeatedly held that there is no liability on the part of the State on the grounds of respondeat superior.

A similar state of facts was presented in each of the following cases, and in each case an award was. denied, to-wit: Baie vs. State, 9 C. C. R. 103; Caslyn vs. State, 9 C. C. R. 107; Hupp vs. State, No. 3227, decided September 14th, 1938.

Under the facts in this case, there would be no liability on the part of the State if the State were suable, and therefore we have no authority to allow an award. Crabtree vs. State, 7 C. C. R. 207; Titone vs. State, 9 C. C. R. 389.

Award denied. Case dismissed.


author: Mr. Justice Yantis

text:
    (No. 3376
    Foster R. Clarke, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1939.

    Burke & Schenk, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeks an award of One Thousand Five Hundred ($1,500.00) Dollars for damages to his automobile and for personal injuries alleged to have been caused by the negligent and wrongful acts of a State Highway employee while operating a snow plow. Claimant alleges that at 12:30 A. M., February 1,1938, he was driving his car in a northerly direction on Route No. ,66 in Grundy County, Illinois, and that although he was in the exercise of due care and caution, the Highway Department employees, C. J. Barnes and John Green, negligently and carelessly ran against his car with the snow plow which they were then operating.

The Attorney General has filed a Motion to Dismiss the Complaint on the ground that same does not set forth a claim for which there is any basis for a legal award.

We have been forced to repeatedly hold that the State is not liable for the nonfeasance, misfeasance or malfeasance of its officers, servants, agents or employees in the discharge of their duties; that the doctrine of respondeat superior does not apply to the State, and that the State in the absence of a statute so providing, is not liable in damages for injuries resulting from the negligent or wrongful conduct of its employees.

We have also held in the construction and maintenance of its highway system the State is engaged in a governmental function, and in the absence of a statute expressly so providing, it is not liable for personal injuries or damages to property occasioned by the negligent or wrongful conduct of its employees. (See Schultz vs. State, 9 C. C. R. 96; Bass vs. State, 9 C. C. R. 120; and Kelly vs. State, 9 C. C. R. 339.)

No good purpose could be served by encouraging claimant to submit its evidence, when the claim, upon its face, would not support an award.

The motion of the Attorney General is allowed and the claim dismissed.


author: Mb. Justice Yantis

text:
    (No. 3232
    Marie Gemelli, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 16, 1939.

      Rehearing denied October 10, 1939.

    Irving M. Greeneield, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Mrs. Marie Gemelli filed her complaint herein on March 23, 1938 and thereby seeks an award under the provisions of the Illinois Workmen’s Compensation Act for disability alleged to have resulted from alleged injuries sustained during the course of her employment at the Illinois Research and Educational Hospital, Chicago, Illinois. In claimant’s statement, brief and argument she contends for an award for permanent total disability. The record discloses that on the 27th day of October, 1937 claimant was in the employ of respondent as a housekeeper’s helper at the Research and Educational Hospital, a charitable institution maintained and operated by respondent at 1819 Polk Street, Chicag’o. Claimant entered such employment on September 23, 1937 and on October 27,1937 was receiving a salary of $64.50, being $52.50 plus $12.00 cash allowance in lieu of maintenance. Other employees in the same capacity received the same salary for the first six months of employment and an increase of $2.50 per month for the second six months of their employment. Her duties consisted of scrubbing, mopping floors and general cleaning. On the afternoon of October 27, 1937 while attempting to remove a steel scrubbing tank full of water from the elevator, one of the wheels of the tank passed over her right foot and she let go of the elevator door and the latter struck her on the left side somewhat below the breast. No one else was present and the only information of what happened is claimant’s statement. She reported the accident to her immediate superior and later in the afternoon complained to the housekeeper that she had a “funny pain” over her left breast. Claimant continued to complain of her discomfort and was permitted to perform lighter work until November 1, 1937 when she was hospitalized at the institution. On November 23rd the patient returned to her home. She worked thirty-one days in December and twenty-nine days in January. On January 29, 1938 about 2:30 P. M. she complained to the assistant superintendent nurse, Miss Badek, that “her strained heart” was again troubling her. At that time she was staggering and gasping for air and complaining of sharp pain in the cardiac region. She was again admitted to the hospital that day for treatment with a diagnosis of psychoneurosis. She was considerably agitated mentally, but sat upright in bed, and except for shallow respirations, was apparently not in great distress. She complained of feeling chilly, but there was no rise of temperature at the time. A spot over the fourth rib when pressed seemed to elicitate sharp pain which radiated up the sternum and, as the patient claimed, choked her. According to the medical examination the pain seemed superficial, not deep and no definite pathology was apparent. A Departmental Beport, filed April 19,1938, from the Department of Public Welfare, and appearing in the record, shows that on January 31st claimant’s son-in-law informed the attending nurse that the patient had had pains of this character before her admission to the hospital.

On February 5, 1938, claimant again had a spell in which she asked for a chair, gasped for breath and complained of pain, but rapidly recovered. X-rays were taken on February 4th and February 15th and an examination showed no pathology. Claimant gave her age at the time of the accident as forty-two (42) years. She did not work any for respondent during February, 1938, and in her complaint, filed March 23, 1938, stated that she was still disabled at that time from pursuing any manual labor. She received full pay for the thirty-one days in February, 1938. The medical attention and hospital service received by her up to February 26, 1938, was furnished by the State of Illinois.

Claimant contends, and her counsel argues, that prior to the alleged accident on October 27,1937, she had always been in good health (p. 1, Despondent’s Statement); that prior thereto she had never experienced any sensation of ill-being in connection with performing her work; had never had any trouble with her work, and was never sick or tired. That within an hour or two after the alleged accident on October 27, 1937, she had a funny pain under her left breast which she had never, had before; “that it is just like a pressure and the pain catches her; that a certain way she would move it would cut off her breath. ’ ’ Claimant testified at the first hearing on June 8, 1938, that: “If I sit up I get purple and cold, my left arm gets cold and my mouth and nose get icy, my hand turns cold and I get out of breath. I never had a feeling like that before October 27th * * * My nose, under the eyes and about the lips and chin gets awful cold and purple when that pain gets awful bad * * *. I never had a heart attack prior to the time I worked at the hospital.” These statements are refuted by later evidence, to which reference will hereafter be made.

Claimant was examined by various medical men, whose testimony appears in the record. This included Dr. Nathaniel H. Adams, a witness for claimant, who examined her on July 6, 1938, and Dr. Paul L. Schroeder, a witness for respondent, who examined her on July 8, 1938, and Dr. Abraham A. Low, called by respondent, who examined her on July 12th and 13th, 1938; also Dr. Ford K. Hick, for respondent, who examined her on October 20, 1938. The testimony of these gentlemen was that they found she had a tendency to become fatigued, had somewhat low blood pressue, and that a point in the neighborhood of the left fifth rib was apparently sensitive to pressure, with a condition of cardiac neurosis with the following symptoms: Weakness and great fatigue, shortness of breath on exertion with a tendency to palpitation or rapid heart action after exertion, pain about the heart, and a tender point somewhere in the left chest.

Following the testimony of the above witnesses, a further hearing was held on April 25, 1939, in open court, Justices C. N. Hollerich and Aubrey L. Yantis presiding, at which time photostatic copies of records of the Cook County Hospital, Chicago, Illinois, concerning the claimant, Marie Gemelli, were admitted in evidence and the following witnesses were examined, i.e.: Dr. Frederick Tice, Dr. Maurice Adelman and Dr. Samuel G. Taylor, all called by respondent, and Dr. Frederick C. Test and Marie Gemelli, witnesses called by claimant.

The testimony of these medical men and the records of the Cook County Hospital, dated August 29, 1932, January 9, 1933, and January 30, 1933, being Respondent’s Exhibits A, B, and C, disclose the following: That Marie Gemelli, claimant herein, was admitted to the Cook County Hospital on August 27, 1932; that at that time she had a tumor in her neck. She then complained of weakness and had lost forty-eight (48) pounds in five weeks about a year prior to said date, when she had blood poisoning from running a rusty nail in her foot. She had gained back this weight in the succeeding six months, but had been feeling weak thereafter. She had lost twenty-four (24) pounds since June, 1932, and had had frequent attacks of nausea. She complained of pain in the epigastrium the following evening. She further stated at that time that she had had headaches associated with nausea all her life. She had frequent cold flashes. She had a smothering feeling in the chest associated with a fluttering of the heart; also a slight pitting of legs and became black and blue easily.

The hospital record further disclosed: That she had had an appendectomy seventeen years previously and an operation on the female organs in 1926; also that she had had typhoid fever when she was sixteen years of age. She was seen by Dr. Samuel G. Taylor of the hospital staff and remained in the hospital for two days and was again readmitted on January 4, 1933.

The record discloses further that from a history given by her at that time she suffered pain which was knifelike at times with pressure along the sternum which had been of one year duration; that she had a tired feeling and was sleepy all the time and was subject to fainting spells; that during these spells she could hear well, but could not respond; further, that for about a year she had had a tingling in the arms, legs and neck; that at times she had attacks when she was unable to walk and that these had occurred about twelve times during the preceding year.

The record further discloses (Respondent’s Exhibit B) that the patient at that time stated she was well until about 1931, when she ran a nail in her foot; that this was followed by blood poisoning and lockjaw, and that she has not been well since; that when the fainting spells would attack her she would have to be supported or she would fall; that her legs, arms and neck stiffen and she could not open her eyes until consciousness is restored by use of ammonia and massage. The record discloses further that the pain complained of in her chest at that time traveled up and down the sternum from the fourth rib to her navel. She was subject to headaches and drowsiness.

It also appears from claimant’s history, as given to the hospital authorities at that time that: In 1915 claimant swallowed a bone, was rushed to a hospital and, according to her statement, “the bone was pushed down, and since then she has been having discomfort ranging from an empty feeling to a feeling of fullness with accompanying pain in varying degrees.” When she was eight years of age she had a hemiplegia and a facial paralysis. At the time of the 1932-33 hospitalization she had a semi-hard tumor about the size of a plum over the lower portion of the larynx. The diagnosis showed a slight grade mitral heart leak. The patient’s mental reaction at that time showed typical signs of psychoneurosis. She remained in the hospital for five days, during which time she seemed to rest well and she was discharged on January 9, 1933.

She was again readmitted to the hospital on J anuary 13, 1933. The record at that time discloses that she had left the hospital against the doctor’s advice on the occasion of her hospitalization in August, 1932. She was diagnosed this time as having a cyst in her neck and also as being a psychoneurotic. The operation for the removal of the tumor was performed and the record showed that on J anuary 30, 1933, the stitches were removed and healing was proceeding properly, and the patient was discharged.

Mrs. Gemelli testified that in 1935 she was confined to the Swedish Covenant Hospital because of blood poisoning in her foot, and that prior to the alleged injury of October 27, 1937, she was “dizzy lots of times,” and although denying the verity of certain statements appearing in the Cook County Hospital Reports above referred to, she admitted having given a history of her case to the doctors, and verified many of the statements appearing in those records. Both Dr. Nathaniel H. Adams and Dr. Frederick C. Test, called as witnesses for claimant, testified that they had made examinations of claimant prior to testifying, and in answer to hypothetical questions stated that in their opinion the accident alleged to have been sustained by claimant on October 27, 1937, had a direct causal effect on her subsequent state of ill-being, and that the objective findings made by them in the course of their examination were sufficient to account for the sensations of ill-being experienced by claimant. This conclusion is not agreed to by the medical testimony produced by respondent. Dr. Paul L. Schroeder examined claimant on July 8, 1938, and testified that he found her to be a well nourished, obese, well developed person who was not very well physically, but that the stress or difficulty under which he found she was laboring was not related to the symptoms and signs found in his examination; that she was ill and not able to work at the time of his examination, but that such inability to work was not related to the conditions which the alleged accident was purported to have caused; that her condition was one of fatigue and being “rundown,” and generally troubled about the problems of her family.

Dr. A. A; Low, a witness for respondent, examined claimant on July 12 and 13, 1938, and testified that she showed a condition of ill-being with a point in the chest sensitive to pressure which in his opinion was the result of an accidental injury.

Dr. Ford K. Hick, called by respondent, testified that he examined claimant on August 15, 1938, and found her to become easily fatigued, to have somewhat low blood pressure, a point over the left fifth rib sensitive to pressure, swelling of the legs with evidence of a hypothyroidism and evidence of what has been called a cardiac neurosis. That the latter phrase is a vague term presenting the following symptoms: Weakness and great fatigue, shortness of breath on exertion, tendency to find palpitation with rapid heart action; pain about the heart and many times a tender point somewhere in the left chest. Dr. Hick had been treating the claimant, prescribing rest and the administration of thyroidectin. In answer to a question as to-what is the usual cause of hyperthyroidism, the doctor stated, “previous surgery on the thyroid gland, goitre and unknown causes, but that it was not likely to arise from trauma, except from an injury direct to the thyroid gland in the neck.”

Doctors Frederick C. Test and Samuel G-. Taylor differed in their conclusions in the reading of an X-ray picture of Mrs. Gemelli’s chest and as to whether same disclosed any sign of a fracture.

From a consideration of the entire record herein, the court is convinced that the attempt by Mrs. Gemelli to obtain an award from the State for an alleged injury on October 27, 1937, is unwarranted and without merit. The symptoms of ill-being testified to by her, as resulting from the alleged accident of October 27, 1937, follow in a remarkably close manner the symptoms and physical reactions displayed by her in the Cook County Hospital in 1932 and 1933, as they appear in her case history, as disclosed by the records of that institution. The cold hands, the tendency to readily become blue in color about the mouth, the fainting and nausea, the weakness and loss of weight to which she became subject after the occasion of October 27, 1937, and all of which she ascribes to the alleged accident of that date, were all a substantial repetition of her' symptoms and reactions disclosed by her case history, as given by her six years before the alleged accident of October 27, 1937. In her examination she was asked. (p. 23), “Was any of this condition that-you have just described ever present before the occurrence of October 27th?” To which she replied: “No, sir; I never had a feeling like that before in my life, ever.” We do not desire to comment further about the evidence, but we believe that the record would well justify an investigation concerning the testimony given by Mrs. Gemelli in an effort to obtain an award herein. Under the state of the evidence the court definitely finds that no award should be made. The claim is denied and the case dismissed.


text:
    (No. 3399
    A. R. Herman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1939.

    Jos. B. Schlarman, 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 alleges that on the 30th day of March, A. D. 1939 he was driving his Chevrolet Truck on S. B. I. Route No. 12 near French Village, in St. Clair County, Illinois; that unnamed employees of the State of Illinois who were then and there in the possession and control of a certain motor truck numbered T 1606, operated by the Department of Public Works and Buildings, Division of Highways of the State, negligently and carelessly backed the same into claimant’s automobile, and that as a direct and proximate result claimant’s car was damaged in the sum of Three Hundred ($300.00) Dollars. .

The Attorney General has filed a motion to dismiss the claim for the reason that no award could legally be warranted upon the facts therein stated.

Traffic upon the highways involves such hazards, that every right should be preserved for those who are injured through the negligence of others and without contributory negligence upon their own part while traveling upon the highways. The State however cannot guarantee the safety of the traveling public, nor under existing statute can the Court of Claims legally support an award against the State, where the damages are the result of the negligence of the State employee who at the time is engaged in the performance of his duties. The rule of Respondeat Superior does not apply to the State. The latter in the construction and maintenance of its highway system is engaged in a governmental function, and in the absence of a statute expressly so providing it is not liable for damages to property occasioned by the negligent and wrongful operation of motor vehicles in the hands of employees of the Division of Highways. (Boner, etc. vs. State, 9 C. C. R. 55. Morgan vs. State, 9 C. C. R. 109.)

The court is reluctant to dismiss a claim of this character on motion but it would be of no benefit to claimant in view of the basis of the claim, to take the desired evidence. It is possible that the driver1 of the State truck should be held responsible but such redress is a matter for the claimant to seek through other courts or through the Department wherein such employee is employed. The motion is- allowed and the claim dismissed.


text:
    (No. 3072
    Leo Klimczak, Stanley Levandowski, Walter Pilaski, Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1939.

    Echt & Cole, for claimants.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimants filed their complaint herein on March 25th, 1937, and alleged therein that on or about March 11th, 1936 they were employed as investigators by the Department of Public Welfare of the respondent, to make a survey of relief conditions in Cook County, at a salary of $125.00 per month; that they worked as such investigators from March 11th, 1936 to April 11th, 1936; that they have never been paid for their services, although they have made numerous requests therefor.

The Attorney General contends:

1. That the claimants were not employed by any representative of the State having authority to employ them.

2. That no appropriation had theretofore been made for the payment of investigators in the Department of Public Welfare.

3. That therefore the respondent is not liable to claimants for any services which they may have rendered.

The case has been submitted to the court upon the testimony of the claimants and the report of A. L. Bowen, Director of the Department of Public Welfare. The testimony of the claimants is to the effect that on March 8th or 9th, 1936, the claimant, Leo Klimczak, was Democratic Precint Captain of the 51st Precinct, 33d Ward, Chicago; that on said date he and the other claimants were in the Democratic Headquarters for said precinct and met Chester Kantowski, then a candidate for ward committeeman of said ward; that said Kantowski told them he had some work for them as welfare investigators at $125.00 per month, and gave each of the claimants a written assignment for work, and directed them to report at the Hotel LaSalle; that the next day they reported at said hotel where their assignments for work were taken up and identification cards were issued to them, with instructions to go to the Public Welfare Department located on the 18th floor of the Transportation Building; that each of said identification cards contained the name of the party to whom it was issued, as well as a statement to the effect that he was an investigator for the Department of Public Welfare at $125.00 per month; that they went to a room on the 18th floor of the Transportation Building, having on the door thereof the following sign, to-wit: “Department of Public Welfare, State of Illinois;” that a Mr. Levinson was at a desk in the rear of the office; that there were then present in such office a number of other persons who had similar identification cards; that Mr. Levinson took the cards, looked at them and said, “Well, boys, I will put you to work. You are going to be relief investigators and you will work from this office. You will report twice a week and your pay will come from the Department of Public Welfare of the State of Illinois.”

Claimants further stated that, each of such investigators was given a sheet purporting to be instructions to investigators, which was signed by Mr. Levinson in their presence; that they were handed a block of report cards and were instructed as to the manner in which the report cards were to be filled out, and were told to report to that office twice a week; that Levinson advised them that they would receive their checks every two weeks; that they need not worry about their money as the State of Illinois would pay them.

Claimants testified that they performed the work required of them, in accordance with the instructions given, and that they worked from March 11th until April 11th; that they turned in their reports as requested; that the first reports were presented to Mr. Levinson; that he sent claimants to a young woman in the office to whom the reports were delivered ; that all subsequent reports were also delivered to her; that claimants saw Mr. Levinson several times at the office, but did not speak to him at any time again; that they called at the office on numerous occasions for their pay checks, but the woman to whom they gave the reports said the checks had not yet arrived and would probably come in later; that thereafter they called for their checks on numerous occasions, but the same woman told them the checks were not in, but that she would notify them when they came.

Claimants also testified that there were others doing work similar to the work which they did, who had received their checks from such woman.

The report of the Director of the Department of Public Welfare is as follows:

“I am returning the enclosed declaration in the case of Stanley Levandowski, et al., vs. The State of Illinois, Court of Claims No. 3072. I regret that I am unable to give you any information. Appointments of these three men were never requested of me, and I have never signed any appointment notices. Their names have never appeared on any payroll that has gone through the Department of Public Welfare.”

Section three (3) of the State Civil Service Act (Illinois Revised Statutes, 1937, Chap. 24%) provides for the classification of all offices and places of employment in the State service except those expressly exempted in Section 11 of such Act. The office or employment of investigator for the Department of Public Welfare is not mentioned or included in said Section 11, and should therefore be included in the offices and places of employment classified under the Civil Service Act of this State.

Under the provisions of such Act, appointments to positions thereunder are required to be made from the register of eligibles for such position, which register is established by an examination by the Civil Service Commission. Section 10 of such Act provides that whenever a position classified under the Act is to be filled, the appointing officer shall make requisition upon said Commission, and the Commission shall certify to him the name and address of the candidate standing-highest upon the register of eligibles for such position; also, that when there is no eligible list, the appointing officer may, with the authority of the Commission, make temporary appointments to remain in force only until regular appointments under the provisions of the Act can be made.

The Civil Service Act also provides that in employments of an essentially temporary nature the appointing officer may, with the authority of the Commission, make temporary appointments to fill a vacancy; that immediate notice in writing shall be given by the appointing power to the Commission, of all appointments, permanent and temporary, in the classified Civil Service; and that the Commission shall certify to the State Auditor all appointments in the classified Civil Service.

There is nothing in the evidence to show that the claimants were selected from any eligible list pursuant to the requirements of the Civil Service Law, nor is there anything to show that they received a temporary appointment with the authority of the Commission. If the claimants held their offices or appointments under the Civil Service Act, they have failed to produce any evidence whatsoever to show such fact.

However, they do not specifically claim to be Civil Service appointees, and apparently base their right of recovery solely upon the appointment which they claim was made by Mr. Levinson. The record does not show what position, if any, Mr. Levinson held with the Department of Public Welfare, nor is there anything in the record to show his powers or duties, nor does the record show anything whatsoever with reference to the authority of Mr. Levinson to make any appointments in the Department of Public Welfare.

It is an elementary principle of law that parties dealing with an assumed agent are bound, at their peril, to ascertain not only the fact of the agency, but the extent of the agent’s authority and power, and it is their duty to determine whether an act by him is within his power and is such as to bind his principal; also, that a person dealing with a special agent is bound, at his peril, to ascertain the extent of the agent’s authority. Ellis vs. Saline County Coal Co., 199 Ill. App. 219; Merchants National Bank of Peoria vs. Nichols & Shepard Co., 223 Ill. 41; Kuecks vs. New Home Sewing Machine Co., 123 Ill. App. 660; Blackmer vs. Summit Coal etc. Co., 187 Ill. 32; Murray vs. Standard Pecan Co., 309 Ill. 226.

In this connection it must also be noted that a distinction is recognized between the acts of an agent representing a private individual or corporation and the acts of an agent representing a public corporation. This distinction is pointed out in the case of Bouton et al. vs. McDonough County, 84 Ill. 384, where the court, on page 395, said:

“Different rules prevail in respect to the acts and declarations of public agents, from those which ordinarily govern in the case of mere private agents. As to the latter, the principals are, in many cases, bound, where they have not authorized the declarations and representations to be made. But, in cases of public agents, the government or other public authority is not bound, unless it manifestly appears that the agent is acting within the scope of his authority, or he is held out as having authority to do the act, or is employed, in his capacity as a public agent, to make the declaration or representation for the government. * * *
“Where the officers or agents of a public corporation have no powers with respect to a given matter, we regard the rule to be, that neither their acts nor their individual knowledge in respect to the matter can, in any way, bind or affect such corporation.”

The law, as announced in the Bouton case, has been cited with approval in many subsequent cases.

Nor does the fact that the claimants rendered the services for which they seek compensation, and the respondent received the benefit thereof, make the State liable on the ground of estoppel.

In applying the rule of estoppel, a distinction is also recognized between cases involving private individuals and cases involving the State. This distinction is clearly set forth in the case of People vs. Brown, 67 Ill. 435, where the court, on page 438, said:

“As between individuals, it is no doubt true, if one, by words or conduct, wilfully causes another to believe the existence of a certain state of things, and induces him to act upon it so as to change his previous condition, he will be estopped to deny the truth of the representation. As between the government and an individual, we have found no case holding thei former would be estopped by any statement of its officials from recovering its own.
“It is a familiar doctrine, that the State is not embraced within the Statute of Limitations, unless specially named, and, by analogy, would not fall within the doctrine of estoppel. Its rights, revenues and property would be at fearful hazard, should this doctrine be applicable to a State. A great a)nd overshadowing public policy of preserving these rights, revenues and property from injury and loss by the negligence of public officers, forbids the application of the doctrine. If it can be applied in this case, where a comparatively small amount is involved, it must be applied where millions are involved, thus threatening the very existence of the government.
The “doctrine is well settled that no laches can be imputed to the government, and by the same reasoning which excuses it from laches, and on the same grounds, it should not be affected by the negligence or even wilfulness of any one of its officials.”

The rule as set forth in the Brown case has been recognized and applied in many cases since that time. The People vs. Gary, 196 Ill. 310; The People vs. Union El. R. R. Co., 269 Ill. 212; People ex rel. Smith vs. Woods, 354 Ill. 224.

The burden of establishing the authority of Mr. Levinson was upon the claimants. Kuhn vs. Pulaski Comity, etc. Co., 188 Ill. App. 279; Fred Miller Brewing Co. vs. Jones, 190 Ill. App. 169.

In the absence of any showing as to the position held by Mr. Levinson, the extent of his authority, and his right to appoint the claimants, we have no authority to allow an award.

It therefore becomes unnecessary to consider the other point raised by the Attorney General.

Award denied. Case dismissed.


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    (No. 3375
    Roman Koppert, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1939.

    Gariepy & Gariepy, 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:

Claimant filed his complaint herein on May 6, 1939, and alleges therein in substance that on June 1, 1937, the respondent was possessed of and had control of a certain street or highway in the City of Chicago known as East 95th Street; that it was the duty of said respondent to keep said highway in good repair and safe condition for travel; that notwithstanding its duty in that behalf, the respondent wrongfully and negligently suffered and permitted said highway to be and remain in a bad state of repair, and unsafe for traffic for a long time prior to said 1st day of June; that as the result thereof the claimant, while in the exercise of all due care and caution for his own safety, was caused to lose control of the motor vehicle which he was then and there driving, whéreby the same ran into one of the pillars of a viaduct extending across said street; that as the result thereof the claimant received severe bodily injuries and was permanently disabled, and his automobile was damaged and destroyed; wherefore he claims damages in the sum of $10,000.00.

The Attorney General has entered a motion to dismiss the case on the ground that there is no liability on the part of the State under the facts set forth in the complaint.

This Court has repeatedly held that in the maintenance of its durable, hard-surfaced highways, the State is engaged in a governmental function; also that the doctrine of respond-eat superior does not apply to the State, and that it is not liable for the carelessness or negligence of its servants or agents in the absence of a statute making it so liable. Wilson vs. State, 8 C. C. R. 72; Baumgart vs. State, 8 C. C. R. 220; Royal vs. State, 9 C. C. R. 67; Crank vs. State, 9 C. C. R. 379; Wolfe vs. State, No. 3215, decided May term, 1938.

This is in accordance with the repeated decisions of our Supreme Court. Hollenbeck vs. County of Winnebago, 95 Ill. 148; City of Chicago vs. Williams, 182 Ill. 135; Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.

This Court has also repeatedly held that we have no authority to allow an award in any case where there would be no legal liability on the part of the State if the, State were suable. Crabtree vs. State, 7 C. C. R. 207; Titone vs. State, 9 C. C. R. 389; Atchison vs. State, 9 C. C. R. 114.

Under the facts set forth in the complaint, we have no authority to allow an award. The- motion of the Attorney General will therefore be sustained and the case dismissed.


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    (No. 3317
    James R. Nevin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1939.

    Claimant, pro se.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

For a number of years prior to Friday, March 18, 1938, the claimant was in the employ of the Division of Highways, Department of Public Works and Buildings of the respondent as an assistant highway engineer. He worked out of the Elgin office and resided at Woodstock, Illinois. On the last mentioned date, while in the performance of his duties, about eight miles east of Lockport, and while engaged in securing soil samples by means of a gasoline operated sampling machine, a hammer weighing 150 pounds, used for the purpose of driving test pipes, dropped a distance of twenty inches on to claimant’s left hand, crushing the first and second fingers thereof.

From the evidence in the record it appears that claimant received immediate medical and hospital attention at St. Joseph’s Hospital in Joliet; that he remained in the hospital about an hour and then returned home, against the wishes of the treating physician; that he went to work the next morning (Saturday); that upon his return to his home in Woodstock on Saturday his hand was so painful that he went to the local hospital, where he remained under the treatment of Dr. Henry W. Sandeen for four days; that he then returned to his home, but remained under the care of Dr. Sandeen until April 4, 1938, on which date he returned to his regular work ; that the period of temporary total disability was fifteen days; that claimant received his regular salary' during the time he was so disabled, to wit, the sum of $105.00; that he desires to have the period of his temporary disability considered as a sick leave, pursuant to the policy of the Elgin office of the Highway Department to allow each employee of such office (in case of sickness) two weeks’ sick leave per year with pay.'

Under the provisions of Paragraph 6 of Section 6 of the Court of Claims Act, our determination of claims of employees of the State for compensation for accidental injuries suffered in the course of employment is required to be made in accordance with the provisions of the Workmen’s Compensation Act. The Compensation Act makes no provision for sick leave, and consequently any rights accruing to the claimant by virtue of any regulations adopted by the Elgin office of the Highway Department with reference to sick leave must be adjusted between the claimant and the Department, and cannot be determined in this proceeding.

From a consideration of the evidence in the record, we find that on said March 18, 1938, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State; that on said date the claimant sustained accidental injuries which arose out of and in the course of his employment; that notice of the accident was given to the respondent, and claim for compensation on account thereof was duly made in accordance with the provisions of the Compensation Act; that the annual earnings of said James R. Nevin for the year preceding the injury were $2,520.00, and his average weeldy wage was $52.50; that at the time of the injury in question he was forty-five years of age and had one child under the age of sixteen years; that as the result of the accident in question claimant was temporarily totally disabled for the period of two and one-seventh weeks, and suffered the loss of the first finger of his left hand and the permanent and complete loss of twenty per cent (20%), of the use of the second finger of his left hand; that all medical, surgical and hospital bills have been paid by the respondent; that under the provisions of Section 8, paragraphs (b) and (e) of the Workmen’s Compensation Act, claimant is entitled to have and receive from the respondent compensation at the rate of Fifteen Dollars ($15.00) per week for one and one-seventh (1-1/7) weeks, for temporary total disability, and in addition thereto for forty-seven (47) weeks for specific loss, as hereinbefore set forth, to wit, the total sum of Seven Hundred Seven Dollars and Fourteen Cents ($707.14), less the sum of One Hundred Five Dollars ($105.00) heretofore paid to him as above set forth; such compensation to be paid in weekly installments of Fifteen Dollars ($15.00) commencing on March 19,1938.

All of such compensation has accrued at this date, and an award is therefore entered in favor of the claimant for the sum of Six Hundred Two Dollars and Fourteen Cents ($602.14).

This award being subject to the provisions of an Act entitled “An Act making an Appropriation to Pay Compensation Claims of State Employees and providing for the Method of Payment Thereof,” approved July 3, 1937 (Session Laws 1937, page 83), and being subject further to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Moneys until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws, 1939, p. 117); and being by the terms of the first mentioned Act subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.


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    (No. 3394
    Oswald Jaeger Baking Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1939.

    Claimant, pro se.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant is a foreign corporation, having its principal office in Milwaukee, Wisconsin. According to its claim, it is engaged in operating its bakery trucks in inter-state commerce between the State of Wisconsin and the State of Illinois; that on the 9th day of January, A. D. 1939, it paid to the State of Illinois, through the office of the Secretary of State, the sum of One Hundred Eight ($108.00)' Dollars for license fees for nine automobile trucks operated by it in Wisconsin and in Illinois, and received therefor nine Illinois license plates to be affixed to its said trucks.

Claimant recites that it was in error in applying for such Illinois licenses for the reason that under the reciprocal agreement existing between Illinois and Wisconsin, the former does not require that the Wisconsin trucks carry an Illinois license while engaged in inter-state operation if hauling their own merchandise and if the gross weight of such truck is under eight thousand (8,000) pounds; that the gross weight of each of the trucks in question was less than eight thousand (8,000) pounds and that such trucks were in fact engaged in hauling its own commodities in inter-state operation.

The Attorney General has filed a motion to dismiss the complaint for the reason that the claim on its face seeks a refund of a motor vehicle registration fee which has been paid voluntarily and without protest, and that such payment was made under a mistake of law.

We have repeatedly held that the State of Illinois in establishing its Court of Claims merely provided a forum in which claims against the State might be heard, and that the court cannot properly recommend an award unless there exists some legal basis upon which the State if it were suable in a court of law, might be held liable.

Cooley, in his work on Taxation (2d ed., p. 809) states the rule as follows:

“That a tax voluntarily paid cannot be recovered back, the authorities are generally agreed. And it is immaterial, in such a case, that the tax has been illegally laid, or even that the law under which it was laid was unconstitutional. The principle is an ancient one in the common law, and is of general application. Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as the reason why the State should furnish him with legal remedies to recover it back.”

The facts as to the weights of the trucks and the interstate nature of their traffic were matters within the particular knowledge of claimant. Under the facts recited in the complaint no award conld be properly allowed by the court, and the motion of the Attorney General is therefore allowed and the claim dismissed.


text:
    (No. 3393
    H. L. Saunders, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1939.

    Claimant, pro se.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed his complaint herein on June 29, 1939, and seeks to recover the sum of Eleven Dollars ($11.00) which he paid to the Secretary of State for a 1939 automobile license, and Fifty Cents (50c) which he paid to the same officer for driver’s license. The complaint alleges that claimant was unable to secure a driver’s license, and consequently was forced to, and did dispose of his automobile on April 30,1939, and therefore asks for a refund of the unpaid portion of the fees so paid by him as aforesaid.

The Attorney General has entered a motion to dismiss the case on the ground that the claimant is not entitled to an award under the facts set forth in the complaint.

The question here presented was before this court in the case of Phillips vs. State, No. 3091, decided at the September term, 1937. In that case the claimant sold his car, and did not operate it at any time after the receipt of the license plates. In considering his right to a return of the unearned portion of the license fee paid by him, we said:

“There is no provision of the Motor Vehicle Act, or any other act, which authorizes a return of a license fee' under the facts set forth in the complaint. Had the Legislature intended that licensees should be entitled to a return of the license fees paid by them, in the event of a sale of the licensed car, they would undoubtedly have made provision to that effect.”

Also:

“The jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State, either at law or in equity, if the State were suable. Crabtree vs. State, 7 C. C. R. 207; Kramer vs. State, 8 C. C. R. 31; Shumway vs. State, 8 C. C. R. 43; Titone vs. State, No. 2475, decided at the January Term, 1937 of this court.
“Under the facts set forth in the complaint, claimant could not maintain an action against the State if it were suable, and therefore we have no authority to allow an award.”

The same rule was applied by this court in the following-cases, to wit: Dealers Transport Co. vs. State, 8 C. C. R. 510; Freeport Floral Co. vs. State, 9 C. C. R. 149; Eaid vs. State, No. 3157, decided January term, 1938; Great Northern Chair Co. vs. State, No. 3234, decided May term, 1938.

What has been said with reference to the vehicle license fee applies with equal force to the driver’s license fee.

For the reasons set forth in the cases cited, the motion of the Attorney General must be sustained.

Motion to dismiss allowed. Case dismissed.


author: Mr. Justice Linscott

text:
    (No. 2181
    Percy Wolff, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1939.

      Rehearing denied October 10, 1989.

    Thomas A. Murphy, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim was filed on May 25, 1933, and avers that the claimant was a State police officer and employed by the Division of Highways of the Department of Public Works and Buildings; that on December 1, 1928, while in the performance of his duties, and while pursuing a coupe bearing no State license, and proceeding in an easterly direction on the south side1 of the road, he was struck by a Buick which rain headon into the claimant, and he received the following injuries: Broken skull; a contusion of the brain; broken left hand in or near the wrist; broken left leg between the thigh and the knee and also between the knee and the ankle, and several broken bones in the left leg; the bone between the knee and ankle of the right leg was split, the socket of the knee joint being torn out and several bones in the right foot were badly bruised, some of which were subsequently removed; and the dislocation of the right joint or socket of the jaw bone; injuries to the right eye and ear and various external and internal bruises and injuries.

Following this injury, on May 14, 1931, this court made an award to this claimant, and found that while in the performance of his duties he was struck by an automobile, and as a result of the collision he suffered certain injuries mentioned in the opinion, and found that the injuries necessitated his being kept in a hospital for 166 days, where he received the services of nurses and physicians. The court further found that 14 X-rays of his injuries were taken and that he was furnished with a walking appliance before leaving the hospital, and that his medical, nurse and hospital bills aggregated the sum of $4,024.79, of which the State has paid $1,472.85, leaving a balance of $2,551.94, for which he was asking an award. The court found that one of the medical bills was $135.00 more than it should be, and deducted this amount from the amount claimed and made an award in the sum of $2,416.94. This was Claim ,No. 1717, and is reported in 6 C. C. R 566.

This court held on a motion to reinstate the claim that the rule of res adjudicata would apply and said: 1 ‘ This is not a harsh rule, particularly in this case, because it appears from the records of the Division of Highways, Department of Public Works and Buildings, that the claimant actually received $175.00 per month from December 1, 1928, the date of his injuries to February 13, 1933, and then continued on ■ the State payroll at a salary of $100.00 per month from then until April 17, 1933.” The motion to reinstate was denied. See 8 C. C. R 8.

The opinion which was filed on May 14, 1931, found that the claimant had been in the hospital for 166 days. It will thus be seen that he was released from the hospital on or about May 15, 1929. The complaint in this case charges that he was incapacitated from pursuing his regular employment as such police officer until October 1, 1931, on which date he returned to duty. This court, in its opinion in Volume 8 C. C. R. 8, found that he had been regularly paid $175.00 per month from December 1,1928, to February 13,1933, and from February 13, 1933, to April 17, 1933, he received $100.00 per month, or approximately the sum of $9,000.00.

The petition filed, on which the award of May 14, 1931, for the payment of hospital bills, doctor bills and nurses’ bills was based, contained the.following paragraph:

“That as a result of his injuries your claimant has been unable to pursue his duties or to do any work alone since the date of the accident and is not now able to perform any work, but he does riot at this time desire to make claim for any temporary total disability, or partial permanent disability,, or permanent disability, or for specific loss, and will not do so unless his recovery is not as complete as it now appears to be.”

This petition was addressed to the January session, 1930, of this court and was not filed for more than a year after petitioner received his injury.

Claimant in this cause avers that he returned to his work on October 1, 1931, and was employed until he was laid off in the month of January, 1933. Claimant did not file this claim until May 25, 1933, almost five years after the accident.

Claimant received, as this court found, compensation at $175.00 per month from December 1, 1928, to February 13, 1933, and then continued at $100.00 per month until April 17, 1933. This is much more than provided for by statute. He returned to his employment on October 1, 1931; and a period of one year, seven months and twenty-five days elapsed from the time he filed his claim and the time he again commenced work. Section- 24 of the Workmen’s Compensation Act provides that no proceedings for compensation under the Act shall be maintained unless application for compensation is filed within one year after the date of the injury or within one year after the date of the last payment of compensation, and that thereafter the right to make application for compensation is barred. Construing the last payment of compensation as having been made on September 30, 1931, this application was not made for one year, seven months and twenty-five days thereafter.

We must, therefore, hold that this court has no jurisdiction to enter the petition or to grant an award. The cause is, therefore, dismissed for want of jurisdiction.


text:
    (No. 3206
    Walter Critchlow, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 11, 1939.

    Joseph H. Goldenhersh, 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:

For about sixty (60) days prior to May 14, 1937, claimant was employed as a laborer by the Division of Highways of the Department of Public Works and Buildings of the respondent. On the last mentioned date claimant, with other employees of the respondent, was engaged in watering recently-laid sod, and was working near the junction of U. S. Routes 40 and 67, between the cities of Collinsville and East St. Louis.

While in the performance of Ms duties, he tripped over a three-inch hose which was being used in the watering process and fell heavily against a steel plate guard rail. He was immediately taken to the office of Dr. R. H. Graves in Collins-ville, where first aid treatment was administered, and was then taken to St. Mary’s Hospital in East St. Louis. X-ray pictures were taken and it was ascertained that claimant had sustained a spiral fracture of the upper third of the shaft of the left humerus and an avulsion fracture of the greater tuberosity of the left humerus.

Claimant remained in such hospital until June 11, 1937, when he was returned1 to his home. He remained under the care of Dr. Graves until September 29, 1937, when he was sent to Chicago for examination by Dr. Thomas. Two days later he returned to his home and remained there until October 6, 1937, on which date he again went to work for the respondent and continued in such work until December 20, 1937. On the last mentioned date he was sent to Dr. Thomas for further treatment. He continued under the treatment of Dr. Thomas until January 14,1938, on which date he returned to his home, and on January 17, 1938, his services with the Depártment were terminated.

There is no question but what at the time of the accident the claimant and respondent were operating under the provisions of the Workmen’s Compensation Act; that the injuries sustained by the claimant arose out of and ini the course of his employment; that the respondent had notice of the accident; and that claim for compensation on account thereof was made within the time required by the provisions of the Act. Claimant at the time of the accident was fifty-two (52) years of age, was married, and had no children under the age of sixteen (16) years.

All necessary first. aid, medical, surgical and hospital services were furnished by the respondent, and claimant was paid compensation for temporary total disability at the, rate of Nine Dollars and Forty-four Cents ($9.44) per week for the following periods, to wit: For the period from May 15 to October 5, 1937, $194.11; for the period from December 20, 1937, to January 17, 1938, $39.10; making a total of $233.21.

No claim is made for any further temporary disability, but claimant seeks an award for the specific loss of the use of his left arm.

The question of the extent of such loss and the rate and amount of compensation to be paid therefor, are the only questions in dispute herein.

From the stipulation of the parties hereto, it appears that during the time claimant was in the employ of the respondent, he worked on two Federal projects, the first of which was commenced on March 22,1937 and which closed on September 7th, 1937, and the other of which was authorized on August 16th, 1937 and closed on March 7th, 1938; that none of the men who were members of the gang on which claimant was working, worked in excess of Two Hundred (200) days during the year preceding the date of claimant’s injury. From such stipulation and other facts in the record, we conclude that claimant’s annual earnings must be computed on the basis of 200 times his daily wage of Four Dollars ($4.00), making his annual earnings Eight Hundred Dollars ($800.00), and his average weekly wage Fifteen Dollars and Thirty-eight Cents ($15.38). His compensation for temporary total disability therefore should have been at the rate of Seven Dollars and Sixty-nine Cents ($7.69) per week, instead- of Nine Dollars and Forty-four Cents ($9.44) as hereinbefore set forth. As the result of such error in computation, claimant has been overpaid the sum of Forty-three Dollars and Sixteen Cents ($43.16) on account of temporary total disability.

The medical witnesses differed widely in their conclusions as to the extent of the loss of the use of claimant’s left arm, and his resulting disability. He appeared personally in court for inspection and examination. From such inspection and examination, and from a consideration of all of the evidence in the record, we find that as the result of the accident in question, claimant has suffered a loss of motion in the fingers of his left hand, the forearm and elbow of his left arm, and in his left shoulder, and that he has thereby sustained the permanent loss of forty (40) per cent- of the use of his left arm; and that under the provisions of Paragraph (e) of Section 8 of the Workmen’s Compensation Act, he is entitled to to have and receive from the respondent compensation for the period of Ninety (90) weeks, at the rate of $7.69 per week, commencing May 15th, 1937, less the sum of $43.16, overpaid to him for temporary total disability as above set forth.

All of such compensation has accrued at this time, and an award is therefore entered in favor of the claimant for the sum of Six Hundred Forty Eight and 94/100 ($648.94) Dollars.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof”, (Illinois Revised Statutes 1939, Bar Assn. Edition, Chap. 127, Pars. 180-181) and being subject also to the terms of an Act entitled “An Act Making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Moneys until the Expiration of the First Fiscal Quarter after the Adjournment of the Next Regular Session of the General Assembly”, approved July 1st, 1939 (Sessions Laws 1939, page 117); — and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.


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    (No. 3309
    Ned A. Balding, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 1, 1939.

    Trapp & Trapp, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks payment of One Hundred Forty-Seven ($147.00) Dollars damages alleged to have been suffered because of negligence and carelessness of inmates at the Lincoln State School and Colony.

The claimant alleges that in the 24th day of June, 1938 certain of the inmates of said institution were allowed by the managers thereof to be at large to perform farm labor for the institution; that in order to reach the farm land owned by the institution where they were to perform such labor, the inmates passed from the Home premises to such other land through the premises of the claimant; that in going through such lands, the inmates and patients carelessly, negligently, wilfully, and wantonly cut the wires of the division fence at or near the northeast corner of claimant’s premises, leaving a gap of about six feet in width through which about thirty-five head of cattle 'owned by the Institution entered claimant’s land; that they went across the first field and then through an open gate into a second field where claimant had hybrid corn, that the cattle ate, trampled and otherwise destroyed three and one-half (3%) acres of snch corn of the alleged value of One Hundred Forty-seven ($147.00) Dollars.

The Attorney General has moved to dismiss the complaint for the reason that the claim for damages is predicated upon alleged liability of respondent for the careless, negligent, wilful, and wanton conduct on the part of inmates of a charitable institution maintained by the State, for which the State cannot be held legally liable.

The motion has been argued orally and Counsel for claimant has ably presented his theory and argument to distinguish this case from the prevailing rule that — •

“The State in. the conduct of its penal and charitable institutions is engaged in a governmental function, and in the exercise thereof is not responsible for the negligent acts of its servants, agents, or inmates, in the absence of a statute making it so liable.”

Counsel for claimant contends that there is a distinction between the functions of a State or its administrative agencies which are governmental in their character, and those which are proprietary, and that the activity of the State may be in part governmental and in part proprietary; further, that the farm land which was located some distance away from the institution buildings, was owned by the State in its proprietary character; that in farming said land and in using the labor of its institution inmates therefor, the State was acting in a proprietary and not a governmental character; that the State should therefore be liable for any damages that may have resulted from the negligent acts of its employees, or in this case the institutional inmates, who were being sent out to perform such farming operations. Counsel cites the case of Dr. Johns Hopkins vs. Clemson Agricultural College of South Carolina, 221 U. S. 636. The College was a State Agricultural Institution, the fee being in the State but the corporation, as equitable owner, being in possession. The College constructed a dyke to protect its land, and in so doing damaged the adjoining property. The College was held responsible, and in connection with said citation, counsel further cites cases at page 243 in Volume 35 L. R. A. (N. S.) where the rule is given, that—

“Where State institutions of the character here considered are not regarded strictly as agents of the government performing a governmental function, they are generally held not to be immune from suit.”

We have not heretofore nor can we now apply such distinction to the State Penal and Charitable- Institutions of the State of Illinois. The care and treatment of such inmates is definitely performed as a governmental function, and while the management of such institutions may see fit to- have such inmates engage in various occupations, such activity is recognized as being for the primary purpose of occupying the time of such inmates.

The gravamen of the charge here is not that the State was or was not engaged, in a proprietary sense, in the operation of farming activities, but that inmates of one of its Charitable Institutions have committed a tort. The fact that they were housed on one part of the institutional premises, and were going to another is not material, nor is it material to what work they might be assigned while there. The record does not disclose that such inmates had any right to go on or across claimant’s land. Their acts in cutting his fence in order to more freely cross his premises was a tort upon their part for which no redress against the State has ever been provided by our Legislature.

We are therefore confronted with the application of the previously stated rule of law that in the absence of a statute making the State liable, there is no legal liability on the part of the State for the acts of inmates of its State Institutions. There being no legal liability, the Court of Claims would not have authority to allow an award. In creating the Court of Claims the Legislature of Illinois did not create a cause of action nor a right of action in any given case, but merely provided a forum wherein claimants against the. State might submit their grievance, and where, if a legal basis for redress was shown to exist, an award might be obtained.

The fact that the Legislature has seen fit to provide such a forum where those who may have a valid claim against the State growing out of contractual and other relations may sue, does not lay the State open to awards being made against it in such Court for the negligent and tortuous acts of its agents, servants or institutional inmates. As stated in the case of Minear vs. State Board of Agriculture, 259 Ill. at P. 559

“Even if such authority (the power to be sued in certain cases) was given, it would cover only actions ordinarily incidental in its operation and would not extend to- causes of action like the present. There is a distinct difference between conferring suability as to debts and other liabilities for which the State’s prison is now liable and extending liability for causes not heretofore recognized.”

We are unable to distinguish the case at bar from the above and from the case of Wood vs. State, 9 C. C. R. 501, in which an inmate of the State Hospital at Jacksonville, Illinois, escaped and injured a woman on an adjoining farm. An award was therein denied for the reasons herein stated.

In the absence of a specific law providing for liability by the State, no liability would accrue under the facts stated in the pending complaint. The motion of the Attorney General is therefore allowed and the complaint dismissed.


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    (No. 2435
    Rose Werckman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 8, 1936.

      Rehearing denied November 1, 1939.

    F. K. Lemon, for claimant.
    Arthur H. Shat, for intervening petitioner.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Rose Werckman, the administratrix of the estate of John C. Werckman, deceased, filed her Application for Adjustment of Compensation in this court on July 17, 1934, alleging that the deceased, John C. Werckman was employed by the State of Hlinois as Field Auditor, and at other duties in the Retailers ’ and Occupational Tax Division of the Department of Finance, and had been so employed since the last week in August in the year 1933; that the offices of the Retailers ’ and Occupational Tax Division were located in what is known as the Public Service Building in the city of Springfield, Illinois, and the deceased made his headquarters there while employed by the State; that on the 22d day of February, 1934, upon the direction of his immediate superior, the deceased went to Wheaton, County of DuPage, on matters concerning his employment and conducted an investigation as to whether or not certain persons should pay a retailer’s or occupational tax, as provided by the statute of the State of Illinois; that he conducted a hearing, and it then became his duty to return to Springfield to the place of his employment and report his acts and doings and the result of his investigation.

The application sets forth that the deceased was on his way to Springfield and had arrived in the city of Springfield, and was on a street known as Fifth, Street, driving an automobile, when the automobile in which the deceased was riding, collided with another automobile and the deceased was seriously injured. This accident occurred on the 23rd day of February, 1934. The deceased died the next day at a hospital in the city of Springfield. His hospital bill was $22.50 and his physician’s bill was $15.00.

At the time of his death, John 0. Werckman, left him surviving the claimant as his widow, who was wholly dependent upon him and one child named Lura Jean Werckman, aged thirteen years, and it is alleged that she is partially dependent upon the deceased. At the time of Werckman’s death, he was receiving Two Hundred Dollars ($200.00) per month.

An intervening petition was filed on behalf of the minor child of the deceased, by a former marriage, but the facts as above set forth constitute the grounds upon which this decision must rest.

The first question to be determined is whether or not the duties of the deceased brought him under the Compensation Act of this State, it being admitted that the deceased met his death in the manner herein set forth.

Under the Court of Claims Act, the Court of Claims must administer the Workmen’s Compensation Act in the manner provided in the Workmen’s Compensation Act. Section 3 thereof provides that the provisions of the Act shall apply automatically and without election to the State * * * and to all employers and all their employees engaged in any department of the following enterprises or businesses which are declared to be extra hazardous. Then follows ten sub-paragraphs. From that part of said Section 3 above referred to, it is apparent that the Act only applies automatically to an employee engaged in any one of the departments or enterprises or businesses which are declared to be extra hazardous.

The Attorney General contends that the principal business or tne ¡State is tne exercise of a governmental function, and that such function in administering the Retailers’ Occupational Tax is not extra hazardous. Claimant contends that because the Department of Finance which regulates the collection of the Retailers’ Occupational Tax happens to be located in a rented building, which is subject to statutory or municipal regulations on account of fire escapes, boilers, elevators, etc., such employment is extra hazardous.

Claimant further contends that at the time the deceased met his death, he was on actual duty, and it was a part of his business to drive around over the State and make proper reports and investigations, and further contends that if the deceased traveled by automobile, he was under the Compensation Act, whether struck by another automobile or a train, and cites several cases to that effect.

No question arises upon this record as to whether or not the deceased was in the performance of his duty but there must be something else in addition to the performance of his duty to bring the deceased under the Workmen’s Compensation Act. He must have been employed in some employment which the Statute declares to be extra hazardous and mentioned in said Section 3. It is admitted by claimant that an employer may be engaged in both a hazardous and a nonhazardous occupation, and urges that in this instance, the employer, the same being the State of Illinois, was and is engaged in both hazardous and non-hazardous employment or businesses. The business which consists of necessarily housing people in buildings that are regulated by law and ordinances for the protection of persons housed in the building and those employed in it is regulated by statute, because the persons are necessarily situated there in constant danger. Claimant further urges that laws are made to regulate the being and driving of automobiles and other vehicles on city streets and hard roads and travel by railroads because persons engaged in that line of endeavor are in constant danger, and concludes that this makes persons so engaged come within the classification of extra hazardous occupations, and as such compensable through the provisions of the Workmen’s Compensation Act.

The statute provides as follows: “In any enterprise in which statutory or municipal ordinance regulations are now or shall hereafter be imposed for the regulating, guarding, use or the placing of machinery or appliances or for the protection and safeguarding of the employees or the public therein; each of which occupations, enterprises or businesses are hereby declared to be extra hazardous and come under the Compensation Act.”

Claimant’s petition for compensation does not set up sufficient grounds, but inasmuch as both sides argued this contention, we will pass upon it.

It will be noted that the statute uses the word “enterprise.” Mow, in this instance, .the State is nothing more or less than a tenant in a building several stories high, subject to municipal and statutory regulations. The State does not own it, but merely occupies a part thereof. It is difficult to see how this could be an “enterprise” or come within the definition of the term “business” as set forth in claimant’s brief. Claimant quotes from the case of Walsh vs. Industrial Commission, 345 Illinois, 356, wherein the term “business” is held to mean an employment which occupies a substantial portion of the time and attention of the one engaged in it. It cannot be said that the State comes within this definition of the term “business.”

Whether or not a person is within the provisions of the Compensation Act must be determined by the business itself. A familiar illustration is set forthh in Angerstein’s treatise on Workmen’s Compensation. The author of that work says that an employer might own a factory containing power-driven machinery, etc., which automatically would bring it under the act. All the employees of such, factory would be under the act regardless of what their duties were, just so long as they were engaged in any department of the business, and this would include stenographers, salesmen, clerical help, etc. Tht same employer might own and operate a clothing-store entirely separate and apart from the factory, in which store there were no appliances or machinery of any description. This clothing store, therefore, would not come under the act automatically, and the employees, therefore, would not be under the act unless and until the employer had filed his written acceptance of the act with the Industrial Commission. If an employee of. any department of the factory were injured, he would have no remedy except the measure of compensation provided by the act. An employee of the clothing store, would have no rights whatever under the Compensation Act unless the employer had affirmatively filed his written acceptance of the act, and the employee’s only possible remedy would be an action at common law, in which in order to recover damages he would have to establish that the injury was due to the employer’s negligence and that he, the employee, had not been negligent.

The State of Illinois, with its multiplicity of departments, must be considered, insofar as the Workmen’s Compensation Act is concerned, the same as an employer engaged in separate and distinct lines, some of which are under the Compensation Act, as an illustration, the Highway Department, and some of which are not under the Act. Nothing appears in this case which would lead us to the conclusion that the department in which the deceased was employed, was extra hazardous within the meaning of the Compensation Act. The State was not maintaining a building or structure for profit, or otherwise. Neither could it be successfully contended, that even though it could be-said that the State was maintaining a structure, that such maintenance required a substantial portion of the State’s time and attention.

We, therefore, conclude that the motion of the Attorney General must be sustained, and this cause dismissed.