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    Isko Company, a Corporation v. State of Illinois.

      Opinion filed April 26, 1921.

    Franchise Tax — when paid under duress. Where the Secretary of State makes a demand upon the corporation for payment of its franchise tax assessed against it by him under the provisions of the General Corporation Act upon its authorized capital stock and for increase of authorized capital stock, as shown by its annual report, and the sum demanded is paid under protest by the corporation, the payment so made is a payment made under legal duress.

      Same — lohat does not bar claimant’s right of recovery. That claimant made no objection to the amount of the tax assessed by the Secretary of State, and failed to have a day fixed for a hearing thereon as provided by Section 112, of General Corporation Act, does not bar claimant, if it is otherwise entitled to recover.
    General Corporation Act — Sections 102, 10.">, 108 and 129, construed. Section 129 of General Corporation Act does not provide for a double franchise tax, but only provides for a tax for a period of either more or less than one year on corporations organized or increasing their capital stock during the period of more or less than one year,’ while Sections 102, 105 and 108, provide for a franchise tax for the exact period of one year on the authorized capital stock as shown by the annual report of the cor-, poration.
    „ Waiver — when rights of State are not waived. That the Secretary of State did not demand payment of the franchise tax, or the fee for increase of capital stock upon the filing of the certificate of increase by the corporation, did not waive the right to collect the same, nor bar the State from collecting the fee and tax.

      Same — State officer cannot waive rights of State. The Secretary of State cannot by any action of his- waive any rights of the State.
    Court oe Claims — no power to declare statute unconstitutional. The Court of Claims has no power or authority to declare any statute of the State unconstitutional. It is only the duty of the Court to endeavor to interpret and construe a statute so as to give full force and effect to all its provisions according to the well established rules of statutory construction, and to treat such statutory laws as valid, effective and binding unless held unconstitutional by the Supreme Court of the State.
    Edward J. Brundage, Attorney General, for State.
   This is a claim by a Delaware corporation authorized to transact business in Illinois, against the State of Illinois for the refund of $10,381.25 paid by claimant to the Secretary of State as an Illinois franchise tax under protest and duress as claimed by claimant.

The facts in this case are not in dispute. On or about February 19, 1920, claimant filed with the Secretary of State its annual report for the calendar year ending December 31, 1919 as required by section 102 of the General Corporation Act of Illinois, in force July 1, 1919, which report showed that the total authorized capital stock of claimant was $7,125,000.00. On the basis of this report, a franchise tax for the year beginning July 1, 1920, at the statutory rate of 5 cents per one hundred dollars, would amount to $3,562.50.

It further appears that claimant increased its authorized capital stock under the laws of the State of Delaware from $7,125,000.00 to $26,000,000.00, which increase was effective February 4, 1920, and a certificate of such increase was filed with the Secretary of State of Illinois on February 29, 1920. At the time the certificate of increase was filed with the Secretary of State, it appears that no demand for an additional franchise tax on the increase was made upon claimant, neither was any such franchise tax paid at that time.

It further appears that the fees required by sections 96 and 97 of the Corporation Act for increase of authorized capital stock, amounting to $11,107.00 were not paid by claimant to the Secretary of State.

Prior to July 1, 1920, the Secretary of State demanded from claimant the sum of $24,107.00 total fees, made up of the following

items:

5c per $100 of franchise tax on $7,125,000.00 of authorized

capital stock, as shown by annual report..<............. $ 3,562.50

Fees for increase of authorized capital stock............... 11,107.00

Franchise tax on increase of $18,875,000.00 in authorized capital stock at 5 cents per $100................. 9,437.50

Total ..........................,....................$24,107.00

Plus the sum of $1,300.00 penalty, making a total of $25,407.00.

Claimant paid the said amount under protest, and now claims a refund of a part of said amount, amounting to $10,381.25, being $9,437.50 excess franchise fees which it claims it paid, with ten per cent penalty on said amount. Claimant makes no claim at this time for the $11,107.00 fees paid for increase of capital stock, but only claims the franchise tax on the increase of the authorized capital stock of $18,875,000 as shown by the certificate of increase filed with the Secretary of State on February 29, 1920, together with ten per cent, penalty paid on said tax.

Claimant has filed an extensive brief on the question that the payment to the Secretary of State was involuntary and was made under protest, duress and compulsion.

Under the evidence and authorities cited, we are of the opinion that claimant made the payments in question under protest and legal duress. We are further of the opinion that the fact that claimant did not make objection to the amount of said tax as assessed by the Secretary of State and have a day for a hearing thereon set by the Secretary of State as provided by Section 112 of the General Corporation Act, does not in way bar claimant in this case if otherwise entitled to recover.

Claimant- contends that section 129 of the Corporation Act is unconstitutional and that it cannot be reconciled with- the other sections of said Act relating to the assessing of a franchise tax. It is not the province of this Court to declare any Statute of this State unconstitutional but it is the duty of the Court to endeavor to interpret and construe a certain statute so as to give full force and effect to all of the provisions thereof according to the well established rules of statutory construction. This Court must treat the statutory laws of the State as valid, effective and binding unless held unconstitutional by the Supreme Court of the State,

This Court is of the opinion that the different sections of the Corporation Act as applied to the case at Bar can be reconciled and construed together and that there is no conflict in the different provisions of the sections relating to a franchise tax.

Section 96 of the Corporation Act provides for the payment of a fee of one twentieth of one per cent. On the authorized capital stock of the corporation and a like fee upon any subsequent increase in addition to the fees provided for by section 97.

A refund of the fee for increase of authorized capital stock, paid by claimant and amounting to $11,107.00, is not claimed in this case.

Section 102 of the Corporation Act provides for an annual report to be made between the first day of February and the first day of March of each year for the calendar year ending December the 31st preceding, which report is to be añade on forms prescribed and furnished by the Secretary of State and shall contain certain matters required by Statute and such other information as may be necessary in order for the Secretary of State to assess the annual franchise tax. This report must disclose such facts as are necessary to enable the Secretary of State to ascertain the proportion of capital stock of a corporation represented by business transacted and tangible property located in this State. As claimant makes no objection to the payment of the franchise tax of $3,-562.50 on the $7,125,000.00 of authorized capital stock shown by its report of December 31, 1919, filed February 19, 1920, we assume that all of the authorized capital stock shown by said report was represented by business transacted and tangible property located in this State. On the basis of this report, the Secretary of State properly assessed a franchise tax of $3,562.50 to which amount claimant makes no objection.

Section 108 of the Corporation Act provides that “the franchise tax herein provided to be paid shall be due and payable on the first day of July in each year and shall be a franchise tax for the year commencing on the first day of July in which it is due and ending on the thirtieth day of June next thereafter.” In other words, the tax of $3,562.50 assessed to claimant on its annual report is the tax on its authorized capital stock as shown by said report, for the year beginning July 1, 1920, and ending June 30, 1921.

Section 129 of the Corporation Act provides that “in addition to all other fees, the Secretary of State shall collect in advance from corporations subject to a franchise-tax, annual franchise taxes as follows and then provides under paragraphs a, b, c, d and e, for the payment of taxes for periods of less than one year and more than one year. Claimant argues that this section cannot be made operative or construed in harmony with the other sections above mentioned, as it would mean a double taxation. We cannot agree with this contention. Section 129 does not provide for a double franchise tax, but provides for a franchise tax for a period of either more or less than one year on corporations organized, or increasing their stock, during said period of either more or less than one year, while sections 102, 105 and 108 provide for the payment of a franchise tax. for the exact period of one year on the authorized capital stock as shown by the annual report. Section 129 divides corporations into classes according to the parts of the year in which they are organized or have their capital stock increased.

Paragraph d of Section 129 provides that" corporations having their capital stock increased between January 1st of any year and the last day of February of the same year, shall pay a franchise tax equal to one-half of the annual franchise tax. Counsel for claimant contends that the Secretary of State assessed claimant the franchise tax for one whole year on the increased capital stock, and that if this section is to be held operative at all, the Secretary of State could only have collected one-half of the franchise tax as the certificate of increase of claimant was filed with the Secretary of State on February 29, 1920.

The Court is of the opinion that said paragraph d provided for a class of corporations organized, or filing their certificates of increase, between January first and the last day of February of any year, and that these corporations should pay a tax equal to one-half of the amount of the franchise tax, which would be a tax for one half of a year, from January first to July 1st, of any year, at which time the amount of the franchise tax for the ensuing year would be due and payable.

Counsel for claimant contends that in order to make said Paragraph d consistent with the other provisions of Section 129, it should have provided for a franchise tax equal to one and. one-half times the amount of the annual franchise tax. If this be true, it can be equally said that Paragraph c of said Ssection 129 should have provided for a franchise tax equal to one and three-fourths of the annual franchise tax.

We are of the opinion that Paragraph c of Section 129 provided for a tax equal to three-fourths of the annual franchise tax, for three-quarters of a year, from October 1st to July 1st of any year, and that Paragraph d of said section provided for a tax for one-lialf of a year, from January first to July 1st.

It appears that the Secretary of State did not demand payment of either the franchise tax or the fee for increase of capítol stock, upon the filing of certificate of increase by claimant, but this does not in any way waive the right to collect the same or bar the State from collection of the fees and tax provided for by law. The Secretary of State could not, by any action of his, waive any rights of the State.

Section 112 of the General Corporation Act, providing for the mailing of notice by the Secretary of State to each corporation of the amount of tax assessed against it, provides that such notice shall contain the amount of the franchise tax assessed against it, for the year next ensuing (meaning the tax assessed against it based on its annual report for the year beginning July 1st following), and the amount, if any, found by the Secretary of State from the annual report to be due upon an increase of capital stock of a foreign corporation represented in this State.

While it would appear from this section that the amount of franchise tax on the increase of capital stock could only be ascertained by the Secretary of State from the annual report, yet it will be found that this section relates only to the mailing of a notice and fixing a day for hearing, and, construed with Section 105, fixing the rate of franchise tax, and with section 129 providing for the amount of the tax to be paid for different periods on increase of capital stock, it seems clear to us that it was the intention of the Legislature to have the Secretary of State collect both the franchise tax as shown by the annual report filed by the corporation, and the amount of franchise tax, if any, due upon increase of authorized capital stock of the corporation as shown by-certificate of increase or other documents filed in this office.

We are of the opinion that the different sections of the Corporation Act, above mentioned, can all he construed together and harmonized, and applied to different classes of corporations, and that in the' case at bar, the Secretary of State not only had the right to assess the franchise tax of $3,562.50 as based on the annual report, but had the right to assess the franchise tax on the increased capital stock as shown by the certificate of increase filed in this office, which would be a tax equal to one-half of the annual franchise tax, for the period from January 1st, 1920, to July 1st, 1920. The Secretary of State could also, at the same time or later, assess the annual franchise tax on the increased capital stock for the year beginning July 1, 1920, amounting in this case to $9,437.50. He could have demanded the payment of one-half of the amount of the annual franchise tax in advance, as provided by paragraph d of Section 129 above mentioned, upon the filing of the certificate of increase, and then could have assessed and collected the tax for a full year beginning July 1, 1920, on the increase of capital stock as well as that shown by the annual report.

Paragraphs a and e of Section 129 provide for a franchise tax of one and a third times the annual tax where capital stock is increased between March first and July first, being for one-third of a year for the period between March first and July first and for one full year from July first on. March first seems to have been adopted by the Legislature as the date when the tax for the full year could be added to the tax- for the fraction of the year and collected at the same time, while for the periods provided for in paragraphs c and d of section 129, the tax for the fractional period of the year only is required to be paid at the time of the filing of certificate of increase and the full amount for the year from July first following may be assessed separately and paid on or before July first.

If claimant’s contention were true, a corporation filing a certificate of increase prior to March first of any year would escape the payment of a full year’s tax, while a corporation increasing its capital stock after March first would have to pay a full year’s tax. This was not, in our opinion, the intention of the Legislature.

We are therefore of the opinion that claimant did not pay to the ' Secretary of State any excess amount of franchise taxes for increase of capital stock, and is not entitled to recover.

The claim is therefore rejected.


source: Caselaw Access Project

license: Public Domain

text:
    The C. A. Goodyear Lumber Co. v. State of Illinois.

      Opinion filed April 26, 1921.

    Franchise Tax — refund. Mistake of fact. In this case there being no dispute as to the facts and the law governing the same, the Court enters an award in favor of claimant for franchise tax paid under a mistake of fact.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for abatement for franchise tax paid by the complainant. It appears that the complainant is a corporation organized under the laws of the State of Delaware and licensed to do business as a foreign corporation in the State of Illinois, and on the 13th day of February, 1920, filed in the office of the Secretary of State of the State of Illinois, its annual report upon which thereafter its franchise tax for the year 1919 was- to be computed. It appears that a mistake in the computation of the fee was made and that the complainant paid an excess franchise tax of thirteen hundred ninety-six dollars and eighty-three cents ($1,396.83). The defendant the State of Illinois through its Attorney General comes and admits that a mistake has been made and consents to the allowance of this claim. We accordingly award the claimant the sum of thirteen hundred ninety-six dollars and eighty-three cents ($1,396.83) in payment of this claim.


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    Hiram B. Gibson v. State of Illinois.

      Opinion filed April 26, 1921.

    Governmental Function — when State not liadle. The State in conducting the Joliet Penitentiary exercises a governmental function and is not liable for injuries sustained by its employees in the discharge of their duty.
    Social Justice and Public Welfare — recommendation. In the interest of public welfare and social justice the Court recommends an appropriation to claimant.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed by Hiram E. Gibson, claimant against the State of alleged injuries received by him while in the employ of the State, as a guard in the Joliet penitentiary.

The evidence is conceded as alleged by claimant and filed with the declaration.

It appears that one of the convicts was missing and claimant was sent out through the yards of the institution to find him. It was dark and the premises not well lighted. There were a number of construction excavations in that vicinity, and about ten feet deep. While searching for the missing prisoner, the claimant stumbled into one of these excavations, thereby, then -and there, receiving great bodily injuries to-wit: The loss of his right testable and a lacerated scrotum, and other injuries about the pelvis, etc. It is not fully established by satisfactory evidence that claimant received any other permanent injuries, other than the loss of the right testacle, although he complains, at times, of some kidney trouble. It was very evident that the State was negligent in allowing holes, like one he fell into, to exist about the premises with no protection around them; and no lights placed at night to mark their whereabouts.

While this Court has held, both before and since the passage of the law of 1917, establishing the Court of Claims, that the State is not liable in cases of this character, in which a number of opinions have been filed at the September term, 1920, of this Court, yet in the present case, we think in the interest of public welfare and social justice, this man should have some compensation for his injuries.

We therefore recommend an appropriation in favor of the claimant in the sum of one thousand dollars.


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    The County of Will v. State of Illinois.

      Opinion filed April 26, 1921.

    Fees, Costs and Expenses of Trial of Inmates of State Institution— when State liable. There being no dispute as to the facts, the Court holds that the State is liable to the County of Will for the fees, costs and expenses incurred in the prosecution of an inmate of the State Penitentiary for a crime committed by him in that institution. (Chap. 110, Sec. 39, Hurd’s Rev. St. of Ill.)
    Edward J. Brundage, Attorney General, for State.
   This is a claim by the County of Will to be reimbursed for the sum of $272.80 paid out for the fees, costs and expenses arising from the prosecution of Edward King, alias Edward Kelly, upon the charge of murder in case .No. 7684 in the Circuit Court of Will County, Illinois. This crime was committed in the State penitentiary at Joliet.

The Attorney General, on behalf of the State, consents to the' allowance of the claim for the full amount.

The claim appears to be in proper form and duly sworn to and under the provision of section 39 of chapter 108 of Hurd’s Revised Statutes of 1917, the State is liable to pay this claim.

The Court therefore allows the claim in favor of the County of Will in the sum of $272.80.


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    Will Shaw and James Bjorkman, Co-partners Doing Business as Shaw & Bjorkman v. State of Illinois.

      Opinion filed April 26, 1921.

    Publication Notices — State liable therefor. There being no dispute as to the facts in the case the Court enters an award in favor of claimant for the amount of their claim.
    Edward J. Brundage, Attorney General, .for State.
   This is a claim for sixty-three dollars ($63.00) filed by claimants against the State for. publishing notices of the pendency of suit by the State to dissolve certain corporations therein mentioned, on account of failure to file annual report, under Act in force July 1,1901, as amended by Act in force July 1, 1917, said notices having been published in the “Aledo Democrat,” a weekly newspaper of Mercer County.

The Attorney General consents to the allowance of this claim and the claim, with the affidavit in support thereof, seems to show on its face that it is proper and should be allowed.

The claim is therefore allowed in the sum of sixty-three dollars ($63.00).


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    The Times Record Company, a Corporation v. State of Illinois.

      Opinion filed April 26, 1921.

    Publication Notice — liability of State. This case is similar to that of Shaw v. Bjorkman, Supra, and the decision of the Court here announced governs this claim.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for seventy-three and 50/100 dollars ($73.50) filed by caimant against the State for publishing notices of the pendency of suit by the State to dissolve certain corporations therein mentioned, on account of failure to file annual report, under Act in force July 1, 1901, as amended by Act in force July 1, 1917, said notices having been published in ‘The Times Record’, a weekly newspaper of Mercer County.

The Attorney General consents to the allowance of this claim and the claim, with the affidavit in support thereof, seems to show on its face that it is proper and should be allowed.

The claim is therefore allowed in the sum of seventv-three and 50/100 dollars ($73.50).


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    Charlotte T. P. Ullman, Executrix and Sole Devisee and Legatee Under the Last Will and Testament of W. B. Ullman, Deceased v. State of Illinois.

      Opinion filed April 26, 1921.

    Inheritance Tax — when claimant entitled to a refund. In this claim there being no dispute as to the facts and law governing the same, the Court enters an award in favor of claimant for the amount of inheritance tax over-paid.
    Edward J. Brundage, Attorney General, for State.
   All the proof by' stipulation is filed herein, and is admitted by the Attorney General to be true and that it sustains the claim which he consents may be allowed in the sum demanded. The evidence discloses that W. B. Ullman died a resident of Cook County, Illinois, on the 27th day of May, A. I). 1918, leaving a last will and testament, which was thereafter duly admitted to probate in said County and the claimant, Charlotte T. P. Ullman, was duly appointed Executrix thereof by order of the Court, and acted as such until discharged in due course November 18th, 1919, and that she is the sole devisee and legatee under said last will and testament. The original order of County Judge of said County assessing a total tax of seven thousand seventy-three and 89/100 dollars in said estate, was entered August 10th, 1918,-less 5% discount for payment within six months from the date of the decedent’s death was by claimant herein paid to the County Treasurer, October 22, 1918, the net sum being $720.20.

On September 30, 1920, an order was entered by County Judge of Cook County modifying said original order of assessment and fixing the total inheritance tax at six thousand eight hundred seventy-one and 8-3/100 dollars.

By reason -of payment of the assessment within six months of decedent’s death, the amount actually due under the latter order of assessment is six thousand five hundred twenty-eight and 24/100 dollars, leaving the sum of one hundred ninety-one and 88/100 dollars due claimant in the cause without interest, which last sum is hereby awarded to claimant.


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    Lillie Lindsay v. State of Illinois.

      Opinion filed April 26, 1921.

    Governmental Function — State not Haile when exercising. The State in conducting the Illinois State Normal School at DeKalb, exercises a governmental function and is not liable for the death, or injury, sustained by its employees while in the discharge of their duty.
    Social Justice and Equity — when claimant entitled to an award. While the State is not legally liable for the death of claimant’s intestate, the Court as a matter of social justice recommends to the Legislature an appropriation to claimant.
    Edward J. Brand age, Attorney General, for State.
   Bert Lindsay at the time of his death was employed as a night fireman at the building of the Northern Illinois State Normal School at DeKalb, Illinois. Ilis duties were mostly as fireman and in the course of such employment lie removed ashes from the pit underneath the boiler. On the night of January 12th, 1921, deceased was working in the boiler room alone and it appears that he was caught accidently in the machinery of the firing apparatus that he was caring for and killed. That deceased left widow and three children who were dependent upon him for support.

It is the opinion of this Court that in accordance with the decisions in similar cases heretofore made, there is no legal liability on the part of the State of Illinois; that the doctrine of respondeat superior does not apply to the State and that the State in conducing the Northern Illinois Sate Normal School at DeKalb is exercising a governmental function and is not liable for the death and injuries of those it employs. However, as a matter of social justice, this Court is of the opinion that an allowance should be made. It is therefore recommended by this Court that the Legislature appropriate the sum of three thousand dollars ($3,000.00) to be paid to the claimant as an award in this case.


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    James S. McCullough, Legatee Under the Will of Myrtle Reed McCullough, Deceased v. State of Illinois.

      Opinion filed April 26, 1921.

    Inheritance Tax — when claimant entitled, to refund under Sec. 25. There being no dispute as to the facts and law governing this claim the Court holds that claimant is entitled to a refund of inheritance tax under Section 25, Inheritance Tax Law.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for refund of inheritance taxes paid in the estate of Myrtle Deed McCullough, deceased, based upon section 25, of the inheritance tax law.

The evidence shows that decedent died August 17th, 1911, a resident of Cook County, Illinois, leaving a will, which was admitted to probate, and claimant was appointed executor.

Thereafter June 11, 1912, a tax of twenty-two hundred and thirty-four and 10/100 dollars, ($2,234.10) was assessed against certain contingent interests in said estate at the “highest rate” under section 25, of the Inheritance Tax Law, which tax plus interest at 6% per annum, was on September 14, 1912, paid to the County Treasurer of Cook County, the interest being $155.27, and the total sum being $2,389.37.

On December 26th, 1920, the said interests having vested indefeasibly in claimants, the County Court of said county entered an order re-assessing the tax of $418.74. This amount, plus $27.08 interest, substracted from the amount of original payment $2,389.37, leaves $1,-943.55, due claimant with 3% interest per annum, thereon from September 14th, 1912, the date of said payment.

There is no dispute as to the evidence, and the Attorney General consents to allow of same. It is therefore ordered by the Court that payment be made to claimant in the sum of $1,943.55, together with 3% interest per annum, thereon from September 14th, 1912, until paid.


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    Ralph D. Hollenbeak, et al Executors of Will of Allen M. Retan, Deceased v. State of Illinois.

      Opinion filed April 26, 1921.

    Inheritance Tax — when claimant entitled to a refund. Upon the facts proven and admitted by the State, the Court enters an award to claimant for the amount of inheritance tax over-paid.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for refund of inheritance taxes erroneously paid ;into the State Treasury in the estate of Allen M. Retan, late of Kane County, Illinois.

Said decedent died testate April 15, 1918, and will was duly probated.

By an order of the County Judge of said county, entered September 3, 1918, pursuant to proceeding under section 11 of Inheritance Tax Laws a total of five thousand seven hundred seven and 93/100 dollars ($5,707.93) was assessed in the estate, which less &% discount for payment within six months of decedent’s death was paid to County Treasurer said county, the net amount being $5,433.53.

The case was duly appealed to the County Court by the Executors of estate; and January 35, 1931, an order was entered assessing the estate in a total sum of $5,039.61.

The actual amount due the State, is $4,778.13, making therefore an over-payment of $644.39, being the difference between the amount of the two assessments.

The Attorney General agrees that the above facts are true, and consents to the allowance of said sum of $644.39, refund.

The Court therefore awards claimants the sum of $644.39 refund.


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    William Jenkins and Frank L. Sellack, Trustees of the Last Will and Testament of William Riley, Deceased v. State of Illinois.

      Opinion filed April 26, 1921.

    Inheritance Tax — when claimant entitled to a refund. See. 23. There being no dispute as to the facts and the law governing this claim, the Court enters an award in favor of claimant for refund of inheritance tax under Section 25, Inheritance Tax Law.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for refund of inheritance taxes under section "25, Inheritance Tax Laws. William Riley Sellack died January 1st, 1915, leaving a will which was admitted to probate in Cook County, Illinois, and claimants were appointed executors, and are now trustees. Deceased left surviving him J. Oscar Sellack and Albert R. Sellack, his brothers, and his only heirs at law him surviving, which heirship was duly proven.

The 5th paragraph of the will bequeathed in trust to the two said brothers, or the surviving brother, as long as they should live, or the survivor should live the residlie of his estate to he held in trust by said trustees for the benefit of said brother or brothers of the survivor; and at the death of the last of said brothers, the residue of the estate to he sold and the proceeds divided among his heirs at law, in equal parts, with the understanding that Bertie B. Tower, of Ottumwa, Ta., shall share equally in said residue with the said heirs at law.

Albert R. Sellack died May 4, 1916, leaving one child, namely, Frank L. Sellack, as his only child and only heir at law, him surviving; and in "November, 1919, said J. Oscar Sellack died, leaving only one child, namely, Georgiana Adella Sellack Clark, the wife of George Clark, and leaving no other heirs at law. By the death of said two brothers, and by virtue of the provision of said will, the said Frank L. Sellack,

Georgiana Adella Sellack Clark, as heirs as aforesaid together with Bertie B. Tower, stranger, sharing as an heir at law because vested with the entire beneficiary interest in the said property of said estate.

The personal property of said first named decedent, was appraised at $163.00 and approved; adjustment of claims had and all claims and. costs paid and the residue of the property delivered to the several legatees. In due time, an order was made and entered by the County Judge of Cook County, taxing said residuary estate one thousand five hundred forty-seven and 67/100 dollars (after the certain life estates therein named) under and by virtue of section 25 of the Inheritance Tax Law, that amount being the greatest tax possible upon the happening of any of the contingencies to which said remainder was subject by the terms of the will. Said tax at the rate of 6% per annum from date of decedent’s death was paid into the County Treasury of Cook County, April 18, 1916, the total payment being $1,668.40. In February, A. D. 1921, proceedings were heard in the Court reassessing the tax on said remainder in the light of the conditions existing upon the termination of the said particular estates, and the total tax so assessed was $812.21, including interest to date of payment, and which amount is claimed to be due claimants as referred to aforesaid. Inasmuch as the amount claimed by claimants is admitted by the Attorney General, it is unnecessary to go into the details of the case further.

An award therefrom is made in favor of claimants in the sum of $856.19, with 3% interest thereon per annum from April 18th, 1916-


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    John Kapella, et al v. State of Illinois.

      Opinion filed April 26, 1921.

    Governmental Function- — State not liable for injuries received by an inmate of its institutions. The State in conducting the St. Charles School for Boys exercises a governmental function and is not liable for injuries sustained by an inmate thereof.
    Employer and Employee — when relation does not exist. The relation of employer and employee does not exist between the State and an inmate of its institution.
    Public Welfare and Social Justice — when award will be made. Although no elgal liability exist against the State, the Court in the interest of social justice and the public welfare recommends to the Legislature an appropriation to claimant.
    Edward J. Brundage, Attorney Genera], for State.
   John Kapella, a minor, sixteen years of age, while an inmate of the St. Charles School for Boys, in this State, was injured hy the falling or giving way of an old boiler, where this hoy and several others were at work, under the directions and supervision of the officers of said institution. His right leg was broken and badly crushed, necessitating surgical operation and detention in the hospital many months.

The injury, as appears from the indisputed evidence, is permanent and the boy is compelled to use a cane or crutch in moving around. He and his parents are in destitute circumstances, and no other relative legally hound for his support.

The injuries to a very great extent interfere with his ability to perform manual labor.

The hoy was not in the employment of the State. He was an inmate of one of the State’s charitable institutions to-wit: Home for delinquent boys, and all care and treatment he there received, was free; and the relation of employer and employee between the State and him did not exist, and the case would not fall under the law of the ‘‘Workmens Compensation Act,” and we know of no other law under which he, from the statement of the case, would be entitled to recover.

But, in view of the fact that injured party was a boy of tender years, and in this school to secure the aid of the State in procuring honorable employment, and improving his usefulness as a citizen, we have decided that in the interest of the public welfare and social justice, the claimant should be to some extent reimbursed for his injuries and permanent inability to earn a living.

We therefore recommend that the Legislature appropriate for the use of John Ivapello, the sum of three thousand dollars to be paid of his legal guardian.


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    Bruce L. Little v. State of Illinois.

      Opinion filed April 26, 1921.

    Kespondeat Superior — when State not liable. The State is not liable for injuries sustained by its employees while in the performance of their duty.

      Same — not liable for torts of an inmate of a State Institution. The State is not liable for the torts or acts of an inmate of its institution. (Elgin, Joliet á Eastern B. B. v. State, Supra), followed.)
    Edward J. Brundage, Attorney General, for State.
   This is a claim hied by claimant, Bruce L. Little for injuries alleged to have been inflicted upon his face by one of the convicts, over whom, with others, the claimant was guard, at Joliet penitentiary. There is no dispute about the facts in evidence. While so standing guard, and while in the due performance of his duties, as such, one of the convicts, stealthfully and without apparent provocation slashed claimant on left check with a knife, running from toward the ear to the corner of the mouth, of the length of about three inches. Claimant had wound dressed, and in two or three weeks, was back at work in same institution. There is no proof that the injuries complained of in any way present him from the performance of manual labor to any extent. The State bore expenses of hospital, surgeon, medicine, etc. We think the weight of evidence discloses the fact that there is only a disfigurement of the face, and that same is permanent.

It has been repeatedly held by this Court that in claims of this character, the State cannot be held liable, but in the interest of public welfare and social justice, we recommend an appropriation for claimant in' the sum of nine hundred seventy-one dollars.


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    J. P. Kenyon v. State of Illinois.

      Opinion filed April 26, 1921.

    Federal Aid Highway — when State is not liable. Respondeat Superior. The State is not liable for the negligence, torts and wrong-doings of its employees resulting in injury to other persons.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for damages for injuries received on December 1st, 1920, to the person and property of J. P. Kenyon, on a federal aid public highway, known as the Peoria road, running north of Springfield, by running into a large motor truck in the highway about the hour of 11:30 ]). m., there being no lights on the front or rear of said truck. The truck belonged to to the Department of the State Division of Highways and had been loaned by the highway department to some person to use in connection with his private business, in taking a load of coal from Springfield to Bloomington and the evidence and argument show that on account of the condition of the roads, he gave up his trip and sold the coal to a farmer and was returning to Springfield with the truck when the motor broke down. He then abandoned the car and left it at the side of the road, where the accident occurred.

The Attorney General has filed a demurrer, setting up that the State is not liable because the doctrine of respondeat superior is not applicable to the State. This rule has been upheld in previous decisions of this Court and it is not necessary to cite any authorities.

The evidence shows that the truck was not left in the highway by any agent of the State, but was left there by a person in no way connected with the State.

We are clearly of the opinion that the State is not liable iii this case. The claim is therefore rejected.


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    Dominic Tosi, Administrator of Estate of Rose Tosi, Deceased v. State of Illinois.

      Opinion filed April 26, 1921.

    Non-Liability of State — State not liable for death of an inmate of its institution. Claimant’s intestate, a minor, an inmate in the Illinois School for the. Deaf, at Jacksonville, died from the effects of a necessary surgical operation performed under the direction of the authorities of the institution. Held, that the State is not liable.
    Social Justice and Equity — recommendation. As an act of social justice and equity the Court recommends to the Legislature an appropriation to claimant.
    Edward J. Brundage, Attorney General, for State.
   It appears from the evidence that Bose Tosi, daughter of Dominic Tosi, a resident of Bureau County, Illinois, was afflicted with deafness, and that her said father placed her in charge of the Illinois School for the Deaf, located at Jacksonville, Illinois, for the purpose of being educated and taken care of by the said institution. That the said child was an inmate of said institution up and until October 30, 1920. It further appears from the evidence that the condition of the health of said child was such that a surgical operation was extremely dangerous. That an operation was performed upon the child under the direction of the immediate authorities of said institution, and that such operation was performed without the consent of the father of said child, the said child being then and there a minor. And it is charged by the said claimant that as a result of said operation and said Bose Tosi died on the 30th day of October, 1920. It further appears from the evidence that the claimant was put to considerable expense on account of the funeral and other incidentals.

The Court finds that there is no legal liability resting on the State of Illinois under this claim; however, as a matter of equity and social justice this Court recommends an appropriation by the Legislature in the sum of fifteen hundred dollars ($1,500).


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    Milliken Trust Co., Administrator, Estate of S. H. Bailey, Deceased v. State of Illinois.

      Opinion filed April 26, 1921.

    Social Justice and Equity — when award will he made. Although no legal liability exist against the State the Court as a matter of social justice and equity may recommend to the Legislature an appropriation to claimant, to he used only for the support of herself and minor children.
    Edward J. Brundage, Attorney Genera], for State.
   Samuel H. Bailey, a man of about forty-five years of age, while an inmate of the Peoria State Hospital for the Insane, and on the night of April 21, 1920, he was attacked by another insane person by the name of Dale and choked by that patient in such a manner that he died at the hospital of that institution on the morning of the 23rd. It appears that the inmate Dale was incurably insane and was recognized bv the authorities as a troublesome and quarrelsome patient, and was known to step up behind other patients and strike them. And. it further appears that the inmates Bailey and Dale were quarreling less than an hour before the trouble occurred, and that they were not put into separate rooms. It appears that the patient Bailey at the time of his death was in good physical health, and was expected to recover his normal mental condition. lie left a widow and seven children and very little property. The attorneys,for the claimant make no contention of a legal liability on the part of the State. It is believed, however, by the Court, that as a matter of social justice there should he an allowance made to the widow of said deceased. It is therefore recommended by this Court that the Legislature of this State appropriate a sum not to exceed two thousand doll arse ($2,000) to be paid to the widow of said deceased, to be used only for the purpose of herself and the minor children of said deceased.


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    George W. Dixon, Executor of the Will of Arthur Dixon v. State of Illinois.

      Opinion filed April 26, 1921.

    Inheritance Tax — when refund will he made. Where an inheritance tax has been assessed by the County Judge against an estate and paid, without first deducting the Federal Tax, and afterwards upon proper proceedings the County Court modified the order, by reason of the failure to deduct the Federal Tax, and re-assessed the tax due the State, the claimant is entitled to a refund of the over-payment of the tax under Section 10, of Inheritance Tax Law.
    Edward J. Brundage, Attorney General, for State.
   This is an action for refund of inheritance taxes erroneously paid into the State Treasury in the estate of Arthur Dixon, deceased.

Briefly, the facts in the case, which are admitted by the Attorney General, are as follows: Arthur Dixon died testate, October 26th, 1917, a resident of Cook County, this State, and George W. Dixon was appointed executor.

In due time the County Judge of said county entered an order assessing an inheritance tax of fifty-three thousand, nine hundred and 64/100 dollars in said estate, which amount less 5% was within the six months paid into the County Treasury to-wit: $51,205.61,

Pursuant to proper proceedings thereafter in the County Court, of which the Attorney General had due notice, an order was made modifying the original order of assessment by reason a failure to deduct the federal estate tax in original compensation. The tax as assessed by the latter order entered October 22, 1919, is forty-seven thousand seven hundred fifty-two and 21/100 dollars. By reason of the payment of the assessment within six months of the decedent’s death, the exact amount of the tax due, by reason of'the order of modification is forty-five thousand three hundred sixty-four and 60/100 dollars, making an over-payment of taxes of five thousand eight hundred forty-one and 01/100 dollars, which the State consents to this refund.

The Court accordingly awards claimant the sum of five thousand eight hundred forty-one and 01/100 dollars.


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    John H. Cordes v. State of Illinois.

      Opinion filed April 26, 1921.

    Non-Liability of State — no liability where claimant injured through his own negligence. The State is not liable for injuries received by its employee, where the injury sustained resulted from the gross carelessness and negligence of the employee in disobeying the positive orders of his superior officer.
    Edward J. Brundage, Attorney General, for State.
   This suit was instituted by John H. Cordes, who was a guard and as such, was an employee of the State of Illinois, to recover damages alleged to have been incurred by him, while in the employ of defendant, and while he, claimant, was exercising due care for his own safety. The facts are stated in the opinion.

As an employee, he was receiving $90.00 per month. About the 6tli day of May, 1919, the claimant and, other guards, and a number of convicts left the prison, to go about five miles out west, what is known as the “Xew Prison.” The trip ivas made in a truck and an automobile. Claimant ivas riding in the automobile truck, which was driven by a convict. It had been the custom, until otherwise ordered, to stop the vehicles outside the gate of the new prison, but some several weeks before the accident to the claimant, positive orders had been given by the captain not to stop outside, but to drive inside and stop for the passengers to alight, and that rule had been adhered to ever since then up to the day of the accident inclusive.

The claimant testified that as the vehicle in which he and others were riding, ivas nearing the outside of the gate, it slowed up, and that he started to get out, and a sudden jerk given the car, by the'- driver, caused him to fall, his foot going under the car, and the wheel passing over, and crushing his foot. He- says the car had about come to a stop or nearly so, when it gave a sudden jerk and started up and threw him. In this, he is very slightly corroborated by William Hilland, vrho also attempted to get out at same time and fell.

Captain Iiulty states that the car had not stopped at time claimant got out, but ivas sloAving down some, and did not stop until it got inside the gate in accordance with his orders, given some weeks before; that car did not stop and start up, but kept running until on the inside of gate. In this, he is corroborated by William Chidsey, another guard, Avho was in the company at said time, who says the car’ did not stop and start with a jerk. He says it never stopped until it go inside the gate. James E. Parker, another guard, states substantially the same thing, and says claimant got off the car while it was still in motion, and before it had gotten inside, to the stopping place.

Hr. Blatt also testified that claimant alighted before they reached the gate, his foot slipped, and he fell, one foot going under the car. The captain had the claimant taken back to the prison hospital, and treated him for broken bones of the foot. The bones forming the arch were broken down so that it produced a “flat foot.” The prison physician, Dr. Bloomfield, says that the foot will never be as good as it was, but cannot tell as to the extent it disqualifies him from performance of manual labor. Claimant did return to his job in the prison, and worked two months at same salary as before the accident. Claimant testified that he had paid out about $200.00 in endeavoring to be cured.

As orders had been given some three, or four weeks before the date of accident, that the cars and trucks must not stop outside, but must run on inside of the gate before passengers were allowed to alight, the claimant must have been fully apprised of such requirement, and rule. The great weight of the evidence in the case is with the State, and shows that the claimant deliberately endeavored to alight while the car was still running and- before it reached its destination or particular place for stopping. He probably jumped out. His entire action in alighting while the vehicle was in motion, and before it reached its stopping place, was in direct violation of a positive command of the captain, as stated. While the truck was slowing up some, still it was heavily loaded, and was moving with a good deal of momentum, and perhaps with much greater speed than was anticipated by claimant. The accident ivas the result of claimant’s own gross carelessness, and for that reason, and other reasons argued by the Attorney General, the State is not liable to respond in damages in this case. But in view of the fact that the claimant is now getting old, and in view of the fact that his foot will never be as good as it was, as stated by the doctor, we have concluded to, and do recommend an allowance of $500.00.


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    Howard Knowles and Edward J. King, Executors of the Last Will and Testament Of Norman Anthony, Deceased v. State of Illinois.

      Opinion filed April 26, 1921.

    Inheritance Tax — when claimant entitled to a refund. There being no dispute as to the facts in this case or the law applicable thereto the Court enters an award in favor of claimant for the amount of the claim for the inheritance tax over-paid.
    Statute oe Limitation — when claim not barred. The claim is not barred by the statute of limitation when the Court of Claims Act is construed with Section Ten (10) of Inheritance Tax Law.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for refund of inheritance tax.

Norman Anthony died June 21, 1912, a resident of Knox Comity, Illinois, leaving a last will and testament, which was afterwards duly admitted to probate in the County Court of said County and Howard Knowles and Edward J. King were appointed executors, and are now acting as such.

On May 7, 1913, the County Judge of said county, approving the report of an appraiser theretofore appointed by him, assessed an inheritance tax in said estate of three thousand five hundred thirty and 02/100 ($3,530.02) dollars. The executors of the estate appealed to the County Court claiming excessive valuation of the property and about the same time, to-wit: On May 21, 1913, paid to the County Treasurer of said county two thousand dollars as part payment of the inheritance tax as assessed by the County ■ Judge.

On March 12, 1915, the County Court of said county entered an order fixing the inheritance tax in said estate at one thousand two hundred seventy-one and 01/100 dollars and neither the State of Illinois nor any other interested party has appealed or otherwise contested said order.

Certified copies of the original order of the County Judge, as well as copy of the inheritance tax receipt, and the order of appeal are contained in the stipulation on file in this .cause.

The amount of the final assessment by the County Court being one thousand two hundred seventy-one and 01/100 dollars, and the payment to the County Treasurer above referred to having been made May 21, 1913, it is apparent that interest at the rate of six per cent, from June 21, 1912, the date of the decedent’s death, until said payment on March 21, 1914, should be charged, and so, the total amount of taxes and interest due under the order of the County Court on appeal is one thous- and three hundred forty and 91/100 dollars ($1,340.91). The sum of two thousand dollars having been paid to the County Treasurer in part payment of the original assessment, it is clear that the executors overpaid the inheritance tax as finally determined, by the sum of six hundred fifty-nine and 09/100 dollars ($659.09).

This amount, together with interest thereon from the time was paid to the County Treasurer, makes a total amount of seven hundred twenty-one and 91/100 ($721.91) dollars.

The Attorney General in his statement admits that the amount overpaid and due claimants, with interest, is $721.91, if the claim is not barred by Statute.

The Court is of the opinion, in construing the Court of Claims Act together with section ten of the Inheritance Tax Law, that the claim is not barred by the Statute.

The claim is therefore allowed for $721.91.


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    Perkins, Fellows & Hamilton v. State of Illinois.

      Opinion filed April 27, 1921.

    Municipal Corporation — Commissioners of Lincoln Parle Board aro a municipal corporation. The Commissioners of Lincoln Park Board are a municipal corporation organized for the purpose of creating, improving and maintaining a system of parks, boulevards and driveways.

      Same — implied powers. Every municipal corporation has the power to sue and be sued, and the power need not be expressly granted, but it is implied as a necessary incident to its creation.

      Contracts — its power to contract. 'As a municipal corporation the Commissioners of Lincoln Park have the power to sue and be sued and to enter into contracts to carry out the purpose for which it was created.

      Jurisdiction — Court of Claims without jurisdiction. The Commissioners of Lincoln Park being a municipal corporation and capable of suing and being sued, this Court is without jurisdiction to entertain this suit.
    Edward J. Brundage, Attorney General, for State.
   The claimants have filed a claim for a sum alleged to be due them for labor and services performed as architects at the special instance and request of the Commissioners of Lincoln Park. They allege that they brought suit against the commissioners in the Municipal Court in Chicago upon the aforesaid claim, that the commissioners filed a special appearance in that suit mainlining that the Court had no jurisdiction of actions against said commissioners and that they are not a body corporate and have not the power to sue and be sued but they are only a branch or agency of the State of Illinois. The question of jurisdiction was not determined in that Court, the case being continued for the purpose of enabling the plaintiffs to file their claim in this Court. The State has filed a plea to the jurisdiction to this Court setting up that the Board of Commissioners of Lincoln Park is a municipal corporation and that the power to sue and be sued is a necessary incident to every municipal corporation and need not be expressly granted and that the Court of Claims has no jurisdiction over suits against the commissioners of Lincoln Park. The claimants take issue with these contentions raising the question of the jurisdiction of this Court. The Board of Commissioners at Lincoln Park was created by an Act of Legislature approved and in force Feb. 8, 18G9, and in the same month Acts were passed by the Legislature creating the West Park and South Park Boards, these three Acts being commonly known as the Park Acts. The functions exercised by the Park Boards are substantially the same as to all three boards. The commissioners of Lincoln Park have been given power in the Acts cited and in subsequent Acts to pass ordinances, appoint engineers, surveyors, clerks and prescribe their duties and authority, to possess all the power and authority hoav by law conferred on the common council of the City of Chicago in respect to the public squares and places in the city and to vacate any public street or alley Avithin the limits of the park to appoint and support a police force, to hold title to lands in trust and under exclusive control, to sell land, borroAV money and exercise many other of the functions of a municipality. The Supreme Court of Illinois has already decided a number of cases that the commissioners of West Park and of South Park are municipal corporations.

West Chicago Park Commissioners v. Chicago, 152 Ill. 392.

People v. Salomon, 51 Ill. 37.

See also 167 Ill. 326; 134 Ill. 170; 103 Ill. 33.

While the intention of the Court as to hoAV far these rulings Avoulcl apply to the commissioners of Lincoln Park has perhaps been uncertain up to the filing of this claim, the recent case of the People v. The Chicago Motor Bus Company decided in 295 Ill. 486 expressly declares that they are of this character. The Court there said “the extent of the poAvers conferred on park commissioners by Legislative Acts has been passed upon by this Court in several cases and it Avas held the park commissioners are a municipal corporation for the purpose of creating, improving and maintaining a system of parks, boulevards and driveAvays, and that their poAvers and authority in these respects are plenary and exclusive of those of the City of Chicago.” Citing a number of cases the Court adds "'those decisions recognize the powers of the park commissioners Avitli reference to the use and regulation of streets and bouleArards under their control except as to street intersections, and that such poAvers are not concurrent Avith the poAvers of the city.” This disposes of the claimants’ contention that the Board of Park Commissioners of Lincoln Park are not a municipal corporation and it is the opinion of this Court that this decision in its effect practically decides the question before us. The poAver to sue and be sued and to enter into contracts to effectuate the purposes for AA'hich it Avas created, need not be expressly granted to a municipal corporation to the extent necessary to execute the poAvers and functions Avith Avhich it is endowed .there is in such a body implied authority to contract obligations and to sue and be sued, citing Cooley, Constitutional Limitations, (2nd Edition) P. 194.

2 Dillon on Municipal Corporations, P. 1139.

It is the opinion of this Court that the purpose of the Acts creating the Park Board of Chicago and subsequent Acts and amendments relating- thereto to be gathered therefrom and from the decisions of our Supreme Court relating thereto, was to create substantially similar bodies haifing similar functions, powers and duties and this opinion is especially confirmed by the recent case of the People v. Chicago Motor Bus Company above cited. The Court of Claims has no jurisdiction over suits against nmniciiial corporations and it therefore follows from the opinion above expressed that it can have no jurisdiction in this case. The claim is accordingly dismissed. „


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    Bertha McMurry v. State of Illinois.

      Opinion filed April 27, 1921.

    Respondeat Superior — Little v. State, Supra, followed. This case is similar to that of Little v. State, Supra, and the decision of the Court announced in that case governs this case.
    Edward J. Brundage, Attorney General, for State.
   The husband of the claimant, one James C. McMurry, was employed as guard in and at the penitentiary located at Joliet, Illinois, and while he was performing his said duty he was attacked and assaulted by an inmate of said institution and killed. That said James C. McMurry died intestate, leaving him surviving this claimant and three minor children, aged seven, nine and twelve, respectively. That the only property left by the decedent was his household effects. That it appars from the evidence that the said claimant and the said minor children were wholly dependent upon the deceased for support. It is the opinion of this Court that there is no legal liability on the part of the State. However, as a matter of social justice this Court recommends the General Assembly of the State of Illinois to appropriate the sum of five thous- and dollars ($5,000.00) to be paid to the said widow, the claimant herein for the purpose of supporting herself and her minor children insofar as the same may extend.


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    William Haywood v. State of Illinois.

      Ópinion filed April 27, 1921.

    Respondeat Supekiob — Little v. State, Supra, followed. This case is similar to that of Little v. State, supra, and the decision of the Court there announced governs this case.
    Edward J. Brundage, Attorney General, for State.
   It appears from the evidence that the claimant was employed at the Illinois State penitentiary, at Joliet, for about five years; that he is about fifty years of age. That on the tenth day of July, 1916, he had charge at the penitentiary of a gang of convicts, among whom were many who were mentally deranged. That while in performance of his duties he was attacked by a convict by the name of Earl Morris, who was serving a life sentence for murder. Morris came up behind him, slashing him with a knife across the left cheek cutting a gash from the left cheek to the tip of the nose about five inches long. It appears from the evidence that the claimant was in a hospital for three weeks. That the claimant has never received any compensation of any kind.

It is the opinion of this Court that the doctrine of respondeat superior is not applicable to the State, and that the State is conducting the State penitentiary exercises a governmental function and is not liable for injuries to those in attendance in said institution or to those in its employ. Therefore, the Court finds that there is no legal liability against the State of Illinois under this claim. However, the Court recommends, under the circumstances of this case, if the Legislature sees fit to waive the legal defenses of the State, it would be an act of justice to appropriate not to exceed ten hundred dollars ($1,000.00) as relief and compensation for all injuries sustained by claimant in this action.


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    Willliam L. Petty, Jr. v. State of Illinois.

      Opinion filed April 27, 1921.

    Kespondeat Superior — Little v. State, supra, followed. This case is similar to that of Little v. State, supra), and the decision of the Court as announced in that case governs this case.
    Edward J. Brundage, Attorney General, for State.
   The claimant, William L. Petty, Jr., was employed as a guard, or keeper, at the penitentiary at Joliet; that while in charge of a detail of seventeen convicts unloading gravel from a railroad car in the yard of the penitentiary, a convict by the name of Moore attacked the claimant with a knife, which he had concealed in his hand, and in the attack the claimant was cut from the hack of his neck around to the cheek hone on the left side of the face, leaving an ugly scar six or eight inches long. And it appears from the evidence that the scar is made in such a manner that no one can shave, him without nicking him on the healed wound.

. It is the opinion of this Court that the doctrine of respondeat, superior is not applicable to the State, and that the State in conducting the State penitentiary exercises a governmental function and is not liable for injuries to those in attendance in said institution or to those in its employ. Therefore, the Court finds that there is no legal liability against the State of Illinois under this claim. However, the Court recommends, under the circumstances of this case, if the Legislature secs fit to waive the legal defenses of the State, it would he an act of justice to appropriate not to exceed ten hundred dollars ($1,000.00) as relief and compensation for all injuries sustained by claimant in this action.


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    Fowler I. Cochran v. State of Illinois.

      Opinion filed April 27, 1921.

    Respondeat Supebiob — Little v. State, Supra, followed. This case is similar to that of Little v. State, supira, and the decision of the Court there announced governs this case.
    Edward J. Brundage, Attorney General for State.
   The claimant was, on the 31st day of July, 1918', employed as foreman of the furniture department at the Illinois State penitentiary at Joliet. That while he was acting in the course of his employment a convict by the name of Bobo attacked him and struck him on the head above the eye with a chair leg, knocking him on the floor unconscious. The convict then attacked him with a knife, cutting a gash about four inches long on the right side of his face, extending from the jaw to the lop of the right ear, and also inflicting a ragged cut near the right lip. It appears from the evidence that Lhe scars are very unsightly, and from the time of the injury the claimant is troubled with pains through his heaa originating from where the blow was struck over the right eye; with slinging and drawing pains where the cuts were inflicted. There is a lump which causes the complainant considerable trouble while eating, as at times in chewing he bites the same. Prior to the injuries the claimant had no trouble with his head or face in any way.

It is the opinion of this Court that the doctrine of respondeat superior is not applicable to the the State, and that the State in conducting the Stale penitentiary exercises a government function and is not liable for injuries to those in attendance in said institution or to those in its employ. Therefore, the Court finds that there is no legal liability against the State of Illinois under this claim. However, the Court recommends, under the circumstances of this ease, if the Legislature sees fit to waive the legal defenses of the State, it would be an act of justice to appropriate not to exceed one thousand five hundred dollars ($1,-500.00) as relief and compensation for all injuries sustained by claimant in this action.


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    Jacob Kubler v. State of Illinois.

      Opinion filed April 27, 1921.

    Non-Liability of State — Respondeat Superior. Claimant’s son was killed by the premature discharge of a cannon at Camp Lincoln during the encampment of the Illinois National Guard. Held, that under the doctrine of Respondeat Superior the State is not liable.
    Statute of Limitations — when claim is barred. Where the claim is not filed within five years from the time it first accrues it is barred under Section Ten (10) Court of Claims Act, unless it falls within the exceptions therein stated.
    Edward J. Brundage, Attorney General, for State.
   Harry Kubler, aged twelve years, a son of Jacob Kubler of Springfield, Illinois, was on the 29th clay of July, A. D. 1900, without any fault on his part, injured by the premature discharge of the cannon or gun known as the Sunset Gun, the property of the State of Illinois, at Camp Lincoln, during the encampment of the Illinois National Guards at that place, from which injuries the said Harry Kubler died.

It. appears from the evidence that the Board of Inquiry appointed to investigate the cause of the premature discharge of said gun, found that the gun was at said time unfit for use.

It appears also from the evidence that an Act was passed by the General Assembly for the indemnity of Jacob Kubler on account of the death of his son, in the sum of fifteen hundred dollars ($1,500.00) but that the bill was returned by the Governor without his approval.

The State of Illinois, through the Attorney General, has filed a demurrer, setting up the Statute of Limitations, and under the law creating the ('ourt of Claims, it is clear that the claim is barred. It will further appear that under the doctrine of respondent superior in force in this State and upheld by this Court, there is no legal liability on the part of the State to claimant for the death of his son.

The claim is therefore, rejected.

However, it appears that the General Assembly recognized that there was merit in this claim by passing the Act above referred to, and it further appears that the father of this boy is a poor man struggling to support his.family and has been deprived of the help of his son, who, if living, would now be in the prime of life and would be able to support his father.

Therefore, as an act of social justice, this Court recommends to the General Assembly, that it appropriate to the claimant the sum of fifteen hundred dollars ($1,500.00).


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    Robert Shannon v. State of Illinois.

      Opinion filed April 27, 1921.

    Governmental Function — State not liahle for damages caused Toy an insurrection of inmates of its institutions. The State is not liable for the torts of its officers, agents, or employees, or inmates of its institution.
    Social Justice and Equity — recommendation. Under the facts and circumstances shown the Court recommends claimants demand to the Legislature for its consideration.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed by Robert Shannon of Joliet, Will County, Illinois, for damages by reason of the loss of machinery belonging to him. It appears that Mr. Shannon had a contract with the commissioners of the new State penitentiary for digging of certain sewer trenches and that the machinery necessary to fulfill this contract had been shipped to the Joliet penitentiary by the Elgin, Joliet and Eastern Railroad Company. While the machinery was on the penitentiary grounds and before it had been unloaded from the freight cars, a riot broke out among the inmates of the penitentiary and as a result numerous fires were started by the convicts. Among other property destroyed were the freight cars in which Mr. Shannon’s machinery was placed and as a result of such fire the machinery was damaged, according to the claimant, almost wholly destroyed. The State through its Attorney General filed a demurrer to this claim on the grounds that the doctrine of respondeat superior is not applicable to-the State and secondly in the presence of the Statutes the State is not liable for the torts of is officers, agents, inmates and employees. We are of the opinion that the contention of the State through its Attorney General, is correct and that the State as a matter of law is not responsible in this kind of an action.

It appears from the evidence offered, and from supplemental statement of claimant, that claimant is largely dependent upon the use of this machine for the support of himself and family, and that the loss has proved a great financial handicap; that he is an elderly gentleman and had no other means of a livelihood, and that he has almost been reduced to a point of bankruptcy by this loss, and that his wife has been committed to the Kankakee State Hospital for the insane.

It is the opinion of this Court that while it is not such a case as would be consistent with former cases before this Court wherein personal injury was sustained or death occurring owing to injury or accident while in the employ of the State, and therefore not within the rules indicated in the class of cases which come under the head of social justice and equity, yet it is a case that commands public sympathy and consideration.

Therefore, this Court recommends this claim to the Legislature of the State of Illinois for their consideration, as this Court is of the opinion that it is without jurisdiction in the. premises.


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    Elgin, Joliet & Eastern Railroad Co. v. State of Illinois.

      Opinion filed April 27, 1921.

    Respondeat Superior — Shannon v. State, Supra, followed. This claim is similar to that of Shannon v. State, suprd\. and the decision of the Court there announced governs this case.
    Court of Claims Act — Par. 4, Sec. 6, construed. No liability of the State arises under Par. 4, of Section 6, of the Court of Claims Act, as it was not the intention of the Legislature to enlarge the liability of the State in cases of this character, but that section only applies to cases which clearly come within its provisions.
    Edward J. Brundage, Attorney General, for State.
   Tlis claim was brought on a loss sustained by the claimant during an insurrection among the prisoners at the State penitentiary of Illinois at Joliet, the occurrence taking place on August 19th, 1919. This claim was based on damage to cars by fires started during the disturbance mentioned. The State through its Attorney General filed a demurrer to this claim on the grounds that the doctrine of respondeat superior is not applicable to the State and secondly in the presence of the Statutes the State is not liable for the torts of its officers, agents, inmates and employees. We are of the opinion that the contention of the State through its Attorney General, is correct and that the State as a matter of law is not responsible in this kind of an action. The claimant also claims right of action under sub-paragraph 4, section 6 of the Court of Claims Act. We are of tlie opinion that this case is of such a nature that it would not come under this particular section of the Statute. We believe it has been heretofore decided by this Court that it was not the intention of the Legislature in creating this Court, to enlarge the liability of the State and it is our opinion that if this Court permitted liability on the part of the State in cases of this character, that it would open the field for a vast number of actions far beyond those the Legislature had in mind rvhen the enactment was passed creating this Court and its subsequent changes and amendments. Therefore this Court denies the claims and sustains the demurrer.


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    Mary Heater v. State of Illinois.

      Opinion filed April 27, 1921.

    Respondeat Superior — when State is not liable. Claimant, an employee of the Department of Agriculture at the University of Illinois, suffered a heat stroke while in the performance of her duty. Held, the doctrine of Respondeat Superior does not apply to the State, and that it is not liable for injuries sustained by its employees in the discharge of their duty.
    Social Justice and Equity — recommendation. While no legal liability exists against the State, in the interest of social justice and equity, the Court recommends to the Legislature an appropriation to claimant.
    Edward J. Brundage, Attorney General, for State.
   Claimant was employed as a bookkeeper in the dairy husbandry office of the department of Agriculture in the University of Illinois, and while in such employ, on July 14, 1916, she suffered a heat stroke while discharging her said duties in a room provided for that purpose.

The evidence shows that in the building in which claimant was working the Department of Agriculture ivas sterilizing milk and manufacturing butter and cheese and that such manufacture required a great amount of heat in that portion of the building where this work was carried on. This heat was conveyed by means of pipes from the central heating plant of the University, and ivas either hot water or steam heat. These pipes, which led in to the manufacturing rooms, ran through the floor of the room in which claimant was employed and added considerably to the natural heat of the room. The evidence shows that July 14, 19Í6, was a very hot day and that the temperature was very high; that claimant ivas performing her duties as usual and that in the afternoon of said day she suffered a heat stroke on account of the high temperature of the room in which she performed her work, which temperature was aggravated by the heat from the pipes in the floor of the room where she Avas Avorking; that she became dizzy and SAA'ooned and Avas carried into an adjoining room Aidiere she lapsed into unconsciousness, and remained in such condition for approximately six Aveeks, and that for a period of nearly two years she has been unable to attend to her usual duties, and the evidence shows that she has not yet recovered from this shock.

Claimant is tAventy-nine years of age, and was earning on an average of $65.00 per month.

The State, through the Attorney General, has filed a demurrer claiming that the State is not liable in this ease, setting up as a defense that the doctrine of respondeat superior does not apply to the State, and that the State is conducting the University of Illinois, is exercising governmental function, and is not liable for the death or injuries of those it employs.

The rule that the doctrine of respondeat superior does not apply to the State has been upheld in many decisions of our Supreme Court, among which are the following:

Elmore v. Drainage Commissioners, 135 Ill., 269.

White v. County of Bond, 58 Ill., 297.

Hedges v. County of Madison, 1 Gilm., 567.

Under these decisions, the State is not liable to claimant and the claim is therefore rejected.

While the Court, as stated above, is of the opinion that the State is not legally liable, as an act of social justice and equity the Court recommends to the Legislature an appropriation to claimant of the sum of two thousand five hundred dollars ($2,500.00).


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    Charles K. Williams v. State of Illinois.

      Opinion filed April 27, 1921.

    Military Service — when claimant entitled to an award.. Claimant was injured while in the performance of his duty, as a Corporal, under orders of Commander-in-Chief of the Military Forces of Illinois National Guard in the suppression of the race riots at Chicago, 111., July 28, 1919. Held, claimant entitled to an award, for the injuries sustained, under Section 154, Chapter 129, Hurd’s Rev. St. (Sec. II, Art. 16, Military & Naval Code of 111.)
    Workman’s Compensation Act — basis of computation. The provisions of the Workman’s Compensation Act is taken into consideration as a basis for compensation in cases of this character.
    Edward J. Brundage, Attorney General, for State.
   Charles K. Williams, the claimant, on the 28th day of July, 1919, was corporal in Company C, First Infantry, Illinois State Militia, and by order of Commander-in-Chief of the military forces of the State lie was ordered to the Eighth Regiment Armory at 35th street and Forest avenue in the City of Chicago for mobilization to suppress the race riots then raging on the south side of said city. With William T. Riggs and two other soldiers he proceeded in uniform to walk to the armory in question, as the street cars were stopped on account of the said riots. At the corner of East 35th. street and Forest avenue he and his companions were surrounded by a mob of two hundred people and claimant was assaulted about the head and face and shot in the back with a 15 calibre bullet.

Claimant was removed to the Michael Reese Hospital for treatment and on August 13, 1919, was removed to his home where he was laid up for several months. The bulet with which the claimant was shot passed through his shoulder blade from the left side, struck the spine and was deflected and took an upward course, lodging in the right clavicle, grazing the lungs and diaphragm. Since the injury the claimant has had dizzy spells, suffered headaches, paralysis of the intestines, bowels and lower limbs, accompanied by limitation of motion and is suffering from permanent injuries as the result of this assault and gun-shot wound.

Claimant is a married man, thirty-eight years of age, with four children all under the age of sixteen years, who are dependent upon him for support.

The State of Illinois, through the Attorney General, has entered its appearance in this cause and admits liability on the part of the State, ■and states that there is no dispute about the facts set forth in claimant’s brief and argument. Under the provisions of section 154, chapter 129, page 2910 of Hurd’s Eevised Statutes, 1919, the State is liable for injuries suffered by an enlisted man of the National Guard, when in the performance of his duties upon orders from the Commander-in-Chief.

In the opinion of the Court claimant is, therefore, entitled to recover in this case, and taking into consideration the provisions of the Workmen’s Compensation Act, making provision for compensation in similar cases, the claimant- is awarded the sum of thirty-five hundred dollars ($3,500.00).


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    Flank Fitzsimmons Doing Business Under the Fame and Style of Fitzsimmons Construction Co. v. State of Illinois.

      Opinion filed June 6, 1921.

      Claims — when allowable. Claims which in equity and good conscience ought to be paid are allowable.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for damages arising out of the repair and alteration of the Capitol building of the State of Illinois authorized by an Act of the 49th General Assembly. This claim was referred to a commissioner to take testimony and upon conclusion of testimony by the plaintiff the counsel for the plaintiff and for the defendant together with the State supervising architect, upon consideration of the evidence offered and of all the records, files, document and information obtainable, have considered each and every item of the claim declared upon and have agreed that the sum of eight thousand nine hundred ninety-eight and 49/100 dollars ($8,998.49), is due the complainant in equity and good conscience. We concur in this finding and agreement and we therefore award the claimant in full of the above claim the sum of eight thousand nine hundred ninety-eight 49/100 dollars ($8,998.49).


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    William Plackett v. State of Illinois.

      Opinion filed January 17, 1922.

    Non-Liability of State — when liability does not attach to State. Claimant was injured while performing his duties as a janitor at Illinois State Normal University, Normal, 111. Held, that no liability against the State attached by reason of the injuries received.
    Respondeat Supebiob — doctrine of not applicable to the State. The doctrine of Respondeat Superior is not applicable to the State, and the State is not liable for the injuries received by its employees while in the performance of their duty.
    Edward J. Brundage, Attorney General, for State.
   This claim was filed by William Plackett to the September term, A. D. 1921, and pleadings completed, January, A. D. 1922.

The declaration alleges in substance, that on March 20, A. D. 1919, and for a considerable time prior thereto, the claimant was in the employ of the defendant, State of Illinois, as a janitor at and in the Illinois State Normal University, located at Normal, Illinois, at a salary of sixty-five dollars a month. That is was the duty of claimant, as such employee, to do general janitor work about the said institution, more particularly at and about the Thomas Medcalf building, one of the said University buildings.

That on said date while so in the employ of the defendant State, and while engaged in the performance of his duties as such janitor, the claimant ivas washing the sky-lights in said last mentioned building, and while so engaged and while exercising due care and caution for his own safety, he accidently fell through the said sky-light, a distance of fifteen or eighteen feet, striking and falling upon the chairs, desks, etc., almost demolishing the furniture, by reason of which and in consequence of which the claimant sustained permanent injuries, to-wit:

A scalp wound, three or four inches long, internal injuries and injuries to the spinal column, by reason of which and in consequence of which, he, the complainant was sick for a long time, and the ailments or injuries finally resulted in traumatic neurasthenia; that the same totally and permanently disables him for the performance of manual labor, and he claims damages therefor in the sum of five thousand dollars.

The evidence in the case is substantially as alleged in the claimant’s declaration, as above indicated, and the State admits there is no evidence to contradict it. It is disclosed by the evidence that the injuries received by the fall through the sky-light resulted in extreme nervousness and traumatic neurasthenia, which is explained by the attending physician to be a nervous condition following injury.

The earlier examinations of claimant by physicians did not disclose a permanent injury, but in May and as late as September 21, 1921, he was thoroughly examined by Dr. Sloan, who testified as to his mental and physicial condition, and said: “In my opinion he (meaning the claimant) is permanently disabled, and cannot be cured.” There is evidence, however, to the effect that much of the trouble complained of exists "in the mind of claimant.

Nevertheless, the testimony shows that his afflictions did result from the fall and that it totally incapaciated him to do manual labor, and that the injuries are permanent and incurable.

The State oiters no evidence, but admits the proof as above indicated, and interposes no objection to a recommendation to the Legislature in this case, that the claimant be paid such an amount as the Court may deem just and equitable.

This Court has repeatedly held that the State was, as a matter of law, is not liable for injuries received by its employees while in its employ, and it is unnecessary to here cite authorities. However, since the passage of the Act of 1917, creating this Court, and defining its jurisdiction and duties, many cases of this character have been decided by this Court.

But, inasmuch as the State interposes no objection to the recommendation by the Court to the Legislature that the claimant be paid a sum which the Court may deem just and equitable, and the Court being of the opinion that in the interest of social justice and public welfare, that the State should compensate its employees for injuries sustained as in this case, recommend that the claimant be paid the sum of six hundred fifty-one dollars expended in his behalf in payment of the bills due for services rendered by his physicians, nurse and drug bills, and in addition thereto for his injuries, we recommend a “lump” sum of tweifiy-three hundred fifty dollars, making a total of three thousand and one ($3,001.00) dollars.


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    G. Charles Griffiths v. State of Illinois.

      Opinion filed January 17, 1922.
    Disohabge of Employee — termination of service. Possibility of dismissal.- Employees of the State are charged with knowledge that they hold their position at the will of the appointing" officer.
    Non-Liability of State — failure to secure other employment. The State is not liable for expenses incurred, or loss sustained, by a discharged employee, in failing to secure other employment.
    Edward J. Brundage, Attorney General, for State.
   This is a claim brought by the complainant growing out of his position as superintendent and managing officer of the St. Charles School for Boys, an institution under the control of the State of Illinois. It appears that complainant entered, into such employment and continued to act in same for a period of time as stated by complainant at the will of said defendant. It appears that such employment began on the 37th day of November 1915; that early in September, A. D. 1917, the complainant was informed that his services would be dispensed with as such superintendent and managing officer; that a, successor had been selected. The claimant further complaining alleges at the time of such notice it was too late to secure a re-assignment as principal of a school in the City of Chicago ; that claimant had entered his children in the Geneva High School at Geneva, Illinois; after receiving said notification of dismissal- he withdrew his children from the Geneva High School at Geneva and entered them in the Austin High School at Chicago; that said . claimant claims that he rented a residence for his wife and family in Chicago, thus requiring a large sum of money for rent and for their support and maintenance; that for a period of more than five months the plaintiff claimed that he was obliged to support and maintain and educate his family in Chicago to the end that his said children’s ad- ■ vancement in school by a change in the middle of a school term would not be interfered with and that by reason of the same the defendant the State of Illinois became liable to pay the said plaintiff the sum of $1,000.00; the Attorney General comes and defends and denies liability on the part of the defendant, the State of Illinois. It appears to this Court that the complainant was well aware of the customs and arrangement controlling appointive position such as the one he held, in fact he admits that his appointment continued at the will of the appointing officer and consequently the possibility of his dismissal under the circumstances that actually took place, was within the knowledge of the complainant at the time he entered the employ of the defendant. Of course another element that would enter into the equity of the situation was the right the complainant had to resign from his position at any time and while this might serve to be a disadvantage to the defendant and its institution at St. Charles, yet there would be no redress against the complainant and we assume no claim would be made by the State in such a contingency and while it is to be regretted that the complainant and his family ivas discommoded through the arrangement had, yet this Court fails to see any authority vested in it to make a charge upon the taxpayers of Illinois under this claim.

It is therefore ordered by the Court that said claim be disallowed.


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    J. Will Hunsaker v. State of Illinois.

      Opinion filed January 17, 1922.

    Respondeat Superior — doctrine not applicable to State. The State is not liable for injuries received by its employees, unless made so by statutory provision.

      Reimbursement — State not liable for medical services and expenses, etc. Nor is the State liable for medical services and expenses incurred, or for loss of time resulting from injuries received by its employees.
    Act of Social Justice — While no legal liability may exist against the State the Court may as an act of social justice recommend to the Legislature an allowance to claimant.
    Edward J. Brundage, Attorney General, tor State.
   These two eases will he considered together, as they are between the same parties, and grow out of the same accident.

This claimant, on December 29th, 1920, was in the employ of the State of Illinois, under the Department of Public AAffirks and Buildings as a millwright, assisting to install a heavy piece of machinery in connection with a limestone crusher, at the penitentiary at Chester. In attempting to avoid being struck by said piece of machinery which by accident had fallen while being raised into position, claimant jumped some twelve (12) feet to the ground into a concrete pit, injuring his left foot. The evidence shows that his ankle was dislocated and a bone in the juste]) was broken or fractured. Claimant claims a permanent and complete loss of the use of his said foot, and Ms claim in this respect is to some extent supported by the medical testimony.

Claimant has made two claims. Case Humber 23 is an action brought for thirteen hundred and twenty-four dollars ($1,324.00) for money paid out for medical services and expenses, and for loss of time while recovering from the injuries, and case Humber 24 is for damages for permanent injuries resulting from the accident, amounting to thirty-six hundred and fifty dollars ($3,650.00).

The Attorney General has filed a demurrer to the declaration in both of these cases, setting up that the State is not liable to claimant for the reason that the doctrine of respondeat superior is no applicable to the State, and in the absence of Statute, the State is not liable for the torts of its officers, agents or employees, and is not liable for injuries to those in its employ.

These doctrines have been upheld in many previous decisions of this Court and it is not necessary to cite any authorities in support thereof.

The claims are therefore rejected, as under the law, the State is not liable to claimant.

However, regardless of legal liability, claimant has sustained injuries as a result of this accident, and the Court recommends to the Legislature an allowance to claimant, as an act of social justice, of the sum of two thousand dollars ($2,000.00).


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    Interstate Iron and Steel Company v. State of Illinois.

      Opinion filed May 9, 1922.

    Fbanchise Tax — when entitled to refund. Where a corporation pays its annual franchise tax for the current year, but prior to such payment it had filed with the Secretary of State a certificate of decrease of its capital stock the franchise tax should be based upon the capital stock as decreased, and it is entitled to a refund of the difference in the amount paid on the capital stock as shown by its annual report and the amount to be assessed on its capital stock as decreased.
    Edward J. Brundage, Attorney General, for State.
   • The claimant has filed its petition for a refund of ninety-nine dollars and five cents ($99.05) fox excess franchise tax paid on its capital stock for the year beginning July 1st, 1920. Claimant paid thirty-five hundred dollars ($3,500.00) as a franchise tax for the year commencing July 1, 1920, on its capital stock of seven million dollars ($1,000,000.00), but prior thereto, to-wit: On April 26th, 1920, it had filed in the office of the Secretary of State a certificate of decrease of its stock to six million, eight hundred and one thousand, nine hundred dollars ($6,801,-900.00), and this is the amount on which the franchise tax should have been paid, amounting to thirty-four hundred dollars and ninety-five cents ($3,400.95). The over-payment of $99.05 should be refun dec! and is a proper allowance against the State.

The Attorney General has entered his appearance and consent to the allowance of this claim, and it appears from copy of letter' on file that the Secretary of State admits that there was an excess payment and that there is a refund of $99.05 due the claimant.

Claimant is therefore allowed the sum of $99.05.


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    The Monroe Binder Board Co. v. State of Illinois.

      Opinion filed May 9, 1922.

    Franchise Tax — when claimant entitled to a refund. There being no dispute as to the facts and law governing this case the Court enters an order in favor of claimant for the amount of his claim.
    Edward J. Brundage, Attorney General, for State.
   This is a claim brought by the Monroe Binder Board Co., of Monroe, Michigan for a refund of a certain franchise tax amounting to one hundred sixty-seven dollars and eight cents ($107.08). No objection or defense of the claim is interposed by or on behalf of the State and the honorable Attorney General consents to an award herein in the sum of one hundred sixty-seven dollars and eight cents ($167.08). Therefore said sum is hereby allowed.


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    Western Electric Company, Inc., a Corporation v. State of Illinois.

      Opinion filed May 9, 1922.

      Contracts — when the State is liable. Where the State through its proper officer enters into a contract for the purchase of specially manufactured articles or supplies for its use, and a mistake is made by the officer in the number of articles wanted and the vendor manufactures the articles contracted for and delivers them to the State and they are accepted by such officer the State is liable for the contract price of the articles furnished.
    Edward J. Brundage, Attorney General, for State.
   The claimant, Western Electric Company, incorporated, a corporation, presents its suit to recover from defendant, State of Illinois, the sum of five hundred seventy dollars, and ninety-six cents ($570.96) alleged to be due and owing under contract between the parties.

The facts alleged in the declaration upon which suit is based, and which are admitted by the State to he true, are briefly as follows:

In June, 1920, the State of Illinois through the Department of Public Works and Buildings, through proper officer, purchased and ordered from claimant, four (4) certain items of electrical equipment, known as “Motor Starting Panels” at the contract price of $201.74, for each panel, making a total of $806.96. The claimant agreed to credit this account with $236.00 on account of other equipment returned to claimant which it did, reducing the balance claimed to be due to $570.96. The panels were made to the order of defendant, shipped to and received by defendant.

When the defendant, State, began installing the panels it was discovered that a mistake had been made by the State through its proper officers in making the said order, in that the order should have called for two (2) instead of four (4) panels. But the mistake was not discovered by the defendant, until the goods had been made to order and delivered to defendant, and ready for installation.

TJpon the discovery of its mistake, the defendant endeavored to get claimant to take back the extra two (2) panels, which it did not' need, and give credit for the purchase price, less 10 per cent, and several letters passed between the parties, relative to the matter, which letters are by stipulation, admitted in evidence herein.

The defendant asserts in its letter that the panels mentioned are carried in stock by claimant, and that therefore it would be an easy matter to sell them to other customers and insisted that two panels should be taken back and credit given for the price of same, less 10%.

On tiie other hand, claimant says that while such goods are listed m the calalog still these panels are not carried in stock, but are "Made (o Order” and that claimant would probably be unable to dispose of same. The defendant fails to show this state of facts are untrue, and tliat its contention is the correct one. The evidence very clearly shows ■that the mistake was made by the defendant and that the claimant was not at fault, and had no knowledge of the same,, until long after the articles were made to order and delivered to defendant.

Under the statement of facts, as alleged by claimant, and admitted by the Attorney General for defendant to be true, we can come to no other conclusion than that the error, (which causes a small loss to the State) was solely the mistake of defendant, without fault of claimant.

It is our opinion therefore that the claims should be allowed. Accordingly, the sum of five hundred seventy dollars and ninety-six cents ($570.96) is awarded claimants against defendant.