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    Frank J. Prentiss v. State of Illinois.

      Opinion filed December 19, 1908.

    1. Pbactice — statute. The Court of Claims is required to hear claims according to its rules and established practice and determine the same according to. the principles of equity and justice.
    2. Same — rules of. Every claimant, in addition to stating the facts upon which his claim is based, must state, first: Whether the same has ever been presented to any State department or State officer, and, if so, when, and to what department or officer and what action has been taken thereon; second: Whether the claim has been assigned or not, and, if assigned, to whom and the date of such assignment, and if other persons are interested in the claim, their names must be stated.
    George B. Dawson, for Claimant.

      ~W. H. Stead, Attorney General, for State.
   The said Frank J. Prentiss filed his claim on the 23rd day’of April, A. D. 1908, with the Auditor of Public Accounts of the State of Illinois, which claim by leave of Court was amended. The Attorney General of the State of Illinois plead the general issue to the said claim and amendment. Claimant filed depositions in support of his claim. The said cause was argued orally by the attorneys before the Court.

Claimant ,says in his amended statement of claim: “Petitioner files herewith a claim for damages for injury to one bay gelding, caused by improper use of same by Captain Alsip’s troop, First Cavalry of the Illinois National Guard, at the encampment at Springfield, Illinois, in August, 1906, in the sum of four hundred fifty ($450.00) dollars, and makes a statement of facts upon which the said claim is based, as follows: ’ ’

In the following seven paragraphs the petitioner alleges definite and indefinite damages of various kinds incident to the injury of the said horse, aggregating an indefinite sum considerably in excess of the said four hundred fifty ($450.00) dollars.

It is sufficient here to say, that the claimant seeks to recover damages for an alleged injury to his horse, a bay gelding, caused by improper use while in the service of Captain Charles H. Alsip’s troop, First Cavalry Regiment of the Illinois National Guard, at the encampment at Springfield, Illinois, in August, 1906. It is urged that a person purporting to be Captain Charles H. Alsip, of the First Cavalry Regiment of the Illinois National Guard, secured by written order from claimant for the use of his troop at the occasion of the State Encampment, six horses, adapted to the cavalry service, and that the said horses were to be returned in good condition. The horse alleged to have been injured was one of the said six horses.

It does not appear from the statement of claim or the record, whether this claim has been presented to any State department or State officer, and if it has been presented to any State department or State officer, the said statement of claim or the record does not state what action has been taken or had thereon. It does not appear from the statement of claim or the record, whether this claim has been assigned or not, and if assigned, to whom, nor the date of such assignment and the names of any other person who may be interested therein.

Under the statute of the State of Illinois, it is the duty of the Court of Claims to hear claims according to its rules and established practice and determine the same, as provided for by law. The Court is therefore of the opinion, that the claimant has not complied with Rule 4 of the rules of the Court of Claims of the State of Illinois, adopted, filed and in full force and effect December 16, 1906. The rule is as follows:

“Every claimant shall state that the claim has never before been presented to any State department or State officer, or if it has been, shall state when and to what. department or officer, and what action has been had thereon. Every claimant shall further state whether said claim has been assigned or not, and if assigned, to whom, the date of such assignment and the names of any other persons who may be interested therein. If the claim be for lands permanently or temporarily appropriated or damaged by the State, the declaration shall state the amount and location of the land and specific description thereof. A bill of particulars, stating in detail each item and the amount claimed, shall be attached to said declaration and made a part thereof.”

It does not appear from the statement of elaim or from the record, that this claim has been presented through proper military channels to the Adjutant General of the State of Illinois for consideration, as is provided for by the rules and regulations of the Illinois National Guard.

Claimant urges that the said horses were delivered on a written order to a person purporting to be Captain Charles H. Alsip. The claimant in his testimony says he did not preserve this order; that he gave it to somebody at 525 North Clark street, and that they never gave it ¡back to him, and that he tried to get it back. It does not appear to whom claimant gave this order or when and where any effort was made to recover it. If the said claim accrued by virtue of a contract, a copy of such contract should appear in the record of this case.

Hurd’s Revised Statutes of the State of Illinois, section 5, page 697.

It appears to the Court that there is insufficient proof in the record that the claimant had his said alleged dealings with an authorized agent of the State of Illinois, through the regular military channels.

If the said Captain Charles H. Alsip was an officer, as alleged, and duly authorized by law through military orders to contract with claimant with reference to the matters referred to herein, it is not established by the record in this case, and if the said matters are true, as alleged, they are easily susceptible of proof.

It does not appear to the Court from a careful examination of the record, that this claim or any part thereof, accrued by authority of law.

“The General Assembly shall never grant or authorize * * # the payment of any claim, or part thereof, hereafter created against the State under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall he null and void, * * * .”

Constitution of 1870, article IY, section 19.

We do not deem it necessary to continue this argument at any greater length.

In consideration of the reasons above set forth, the claim is dismissed, without prejudice, however, to its presentation and prosecution before the proper department.


source: Caselaw Access Project

license: Public Domain

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    Metropolitan Life Insurance Company, of New York, v. State of Illinois.

      Opinion filed December 19, 1908.

    Insurance — Reciprocal Statute — Home Life Insurance Company v. State ante followed. This claim is similar to all intents and purposes as the claim of Home Life Insurance Company of New York v. State, supra, and the law as announced by the Court in the opinion there filed applies to and governs the decision of this claim.
    Logan Hay, for Claimant.

      W. H. Stead, Attorney General, for State.
   This is an action to recover money paid by claimant to the State of Illinois, as a tax upon its premium receipts for the years 1901, 1902 and 1903, upon policies issued by it, in the State of Illinois, prior to January 1, 1902.

The facts in this case are very similar to the facts in the ease of the Home Life Insurance Company v. State of Illinois, an extended opinion in which case has been filed of even date herewith, and the principles of law involved in this case are substantially the same as in the case of the Home Life Company referred to.

Claimant is a New York corporation, organized and incorporated under the laws of that state, and was doing business in Hlinois, in the years mentioned, as a life insurance concern.

By the reciprocal clause of the insurance law of Illinois, claimant became liable to pay as a tax, on business done in Illinois, an amount equal to the tax, if any, which the law of New York levied upon Illinois life insurance corporations, carrying on business in the state of New York.

By the New York Act of 1901, which went into effect October first of that year, all life insurance concerns, foreign, as well as domestic, were required to pay an annual state tax of one per cent upon the gross amount of premiums received in that state, during the preceding calendar year.

Under date of December 16, 1901, the Superintendent of Insurance of Illinois notified claimant, that under the reciprocal law of Illinois, there would be due the State of Illinois from it, a tax of one per cent on premiums received by it, for business done in Illinois for the year 1901.

Claimant received this notice January 8, 1902, and thereupon computed what the amount of this tax would be, and without protest or complaint on January 31, 1902, forwarded to the Superintendent of Insurance of Illinois a draft for $20,155.13, in payment of said tax.

Upon receipt of another similar notice in January of 1903, with reference to business done in the year 1902, claimant again, on February 2, 1903, sent the superintendent a draft for $23,670.14, and upon similar notice, received in March, 1904, sent a draft for $27,705.64, as payment of the tax for the business done in the year 1903.

In October of 1904, the Court of Appeals of New York, in the case of The People ex rel. Provident Savings Life Assurance Society v. Miller, 179 N. Y., 227, construed the New York Act of 1901 to be a tax upon premiums paid on policies issued on or after January 1, 1902, and not on policies issued prior to 1902.

Claimant now asks to recover back from the State of Illinois all tax paid by it for the years 1901, 1902 and 1903, on premiums received from Illinois policies issued prior to 1902, which it alleges to be the sum of $60,148.61, with interest thereon from date of payment.

It is unnecessary here to discuss the legal and equitable questions involved in this case, as to whether the payments sought to be recovered back were made under a mistake of law or fact, for we have discussed them at considerable length in an opinion filed this day in the case of the Home Life Insurance Company v. State, which, case was docketed in advance of this and which opinion is respectfully referred to as conclusive of our views upon these propositions.

In that case, payments of the tax were made under substantially the same set of facts, and the same principles of law are applicable thereto, and we there held and so hold in the case at bar, that the payments so made, were made under a mistake of law and not of fact.

In this ease, however, differing to that extent from the case of the Home Life Company, claimant seems to raise the question as to whether the payments were voluntarily made or whether under some degree of compulsion or duress.

This alleged element of duress seems to be based upon the wording of the circulars sent claimant, which claimant construes as threats of the revocation of its license. A reading of the circulars, however, will show that the element of threat is wanting and that the language of the circular in this case is substantially the same as that used by the superintendent in the case of Yates v. Royal Insurance Company, 200 Ill., 206, the only difference being, that in the Royal Insurance Company case, two circulars were sent instead of one, as in this case. Yet, in the Royal Insurance Company case, the Court held that the wording of the circular did not make a case of compulsion or duress sufficient to remove the case from the rule, that money paid voluntarily under a mistake of law cannot be recovered.

Further than this, the record shows no protest or complaint on the part of claimant against the payments. It also shows that two payments were made nearly a month before the time provided under the Illinois law for filing reports and all of them made more than two months before they were due under the provisions of the New York Act.

As the Court said in Yates v. Royal Insurance Company, supra, we say here, that “there is no evidence in the record that the company in any manner indicated that if made the payment with any reservation of its rights, and as we read the record it does not appear the company was unwilling to pay and paid only because of the coercive or compulsory provision of the Act.”

For the reasons indicated, we are of the .opinion that claimant has no legal or equitable claim against the State and the claim is therefore rejected.


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    Samuel E. Flannigan v. State of Illinois.

      Opinion filed December 29, 1908.

    Res Adjtjdicata — what constitutes. Where a claim has been heard, either before the Commission of Claims or its successor, the Court of Claims, and a decision rendered, such decision will be final, unless a rehearing is applied for and granted and the decision changed.
    W. S. Cantrall, for Claimant.
    W. H. Stead, Attorney General, for State.
   This is a claim toy Samuel E. Flannigan for $1,655.00 which he claims to he due him as 'salary as a trustee of the Southern Illinois Normal University. He alleges in Ms verified claim that in 1869 he was appointed a trustee of said hoard by John M. Palmer, then Governor of the State of Illinois; and that thereafter he was elected secretary of said board, and served both as trustee and secretary for a period of two years, beginning in March, 1869; and that he received as salary and expenses for said services the sum of $1,475.00, and that the amount claimed is yet due Mm from the State.

He also alleged in his said claim that in 1878 he filed a claim for said balance due him, with the Commission of Claims of this State.

To his demand the Attorney General has filed various pleas, among which is the plea of former adjudication.

It appears both from the verified claim and the evidence introduced in this case, that this claim was filed in the Auditor’s office in 1878, and that a hearing was thereafter had thereon before the Commission of Claims, and that said claim was rejected. Having been so considered and determined upon its merits at that time, it is now barred from further hearing in tMs Court, and is therefore rejected.


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    James Reddick, Administrator of the Estate of Joseph Pimes, Deceased, v. State of Illinois.

      Opinion filed January 1, 1909.

    1. Military Service — claim for death while in. This claim was originally brought by James Reddick, administrator of the estate of Joseph Pimes, deceased, on his own • behalf and on behalf of the mother of said deceased. Reddick having died, John F. Devine was appointed in his place, and the brothers of said Joseph Pimes, deceased, were added as claimants.
    2. Naval Reserves — commanding officer. The captain of the Naval Reserves is its commanding officer under the Governor.
    3. Rules and Regulations — who makes. The statutes authorize the Commander-in-Chief to make rules and regulations for the government of the military and naval forces of the State, which rules and regulations shall conform as nearly as practicable to the regulations of the Army and Navy of the United States.
    4. Financial Held or Assistance — defined. “Financial help or assistance,” as used in section 4 of article 11 of the Military and Naval Code of 1903, does not mean compensatory damages. It means a voluntary contribution on the part of the State in the nature of a pension.
    6. Claims — how brought. Claims of this character may be brought either in the name of the legal heirs directly, or in the name of the administrator for the use of the legal heirs. {'Witte v. State, 1 Ct. of Cl. Rep., 249.)
    Wm. Pettis and Robt. C. Busse, (Geo. E. Dawson, of Counsel) for Claimant.
    W. H. Stead, Attorney General, and Chas. E. Woodward, Assistant Attorney General, (Roy Wright, of Counsel) for State.
   ■ This is a claim originally made against the State of Illinois by James Reddick, administrator of the estate of Joseph Pimeis, deceased, on his own behalf as administrator, and on behalf of Celia Pimes, the surviving mother of deceased, alleged in the petition to be his only heir. It is stipulated that John F. Devine is the duly appointed successor of said James Reddick, now deceased. By amendment of the claim, Marx, Selig, Henry and David Pimes, (brothers of deceased Joseph Pimes, are added as claimants; and the proof shows that deceased died unmarried, leaving the mother and said brothers the sole surviving heirs of deceased.

The claim is brought under section four (4), article eleven (11), of the Illinois Military and Naval Code of 1903, being section 93, chapter 129, revised statutes 1908, which section of the statute is as follows:

“Section 93. — When killed or wounded in service.— Claim against State.] 4. In every case where an officer, soldier or seaman of the Illinois National Guard or the Naval Reserve of Illinois shall be killed or wounded while performing his duty as an officer,- soldier or seaman in pursuance of lawful orders from the Commander-in-Chief, said officer, soldier or seaman, or his legal heirs, shall have a claim against the State for financial help or assistance, and the State Board of Claims shall act on and adjust the same as the merits of each case may demand. ’

The deceased in his lifetime and at the time of his death was a duly enlisted seaman of the First Division of the State Naval Reserves, a branch of the State Militia, located and with headquarters at Chicago. At the time of the death of deceased, Captain Warren F. Purdy was commanding officer (under the Governor) of the Naval Reserves; Lieutenant Cecil Page was commanding officer of said First Division. For some months previous hereto, and at the time of the death of deceased, Thomas Peter Coffee was Acting Coxswain in said First Division. Said First Division has its headquarters at No. 20 Michigan Avenue and its boathouse near the Randolph street viaduct.

On Thursday evening, July 5, 1906, deceased with, five other more or less inexperienced' seamen of said First Division, under the immediate command of Coxswain Coffee, were -at boat drill on the lake. The boat was of the rowboat pattern in use in the Navy, four seated, with a capacity of ten or twelve persons; fitted for sails, and termed in nautical parlance a “Dingy.” The crew had rowed from the boathouse to near the mouth of the Chicago River, and shortly after 9 p. m. were returning to the boathouse under sail, when the boat capsized and deceased and four of his comrades were drowned, viz: Antonio Capodice, Edward M. O’Carroll, Ralph Heeg, and Robert E. Schrom; Coxswain Coffee and Seaman Frank Randall being the only survivors of the accident.

The Attorney General, on behalf of the State, files what amounts to a plea of the general issue and the main contention in the case is as to whether the deceased was killed “while performing his duty as a seaman in pursuance of lawful orders from the Commander-in-Chief”, within the meaning of the statute in that behalf. Claimant’s petition charges the State and its officers with negligence in not providing the boat with life preservers and other safety appliances, etc., but this position is abandoned on the hearing, and the right to recovery is based solely on death due to accident in performance of military duty in pursuance of lawful orders. On the other hand the State contends that in participating in “sailing” deceased was not in performance of his duties under lawful orders, and also that the proof fails to show that the deceased was himself free from contributory negligence.

The solution of the question at issue depends largely upon the orders under which deceased was serving when drowned and the duties, authority and discretion of the various officers over him.

The Captain of the Naval Reserves is its commanding officer, under the Governor. The statutes authorize the Commander-in-Chief to make rules and regulations for the government of military and naval forces of the State, but provide that such rules and regulations shall conform as nearly as practicable to the regulations for the Army and Navy of the United States, and that when otherwise not provided, the rules and regulations of the United States shall govern, (chapter 129, Revised Statutes). The law of the State makes provision for an annual cruise of the Naval Reserves ; and for thirty drills per year as a minimum, to he weekly or semi-weekly, (Chapter 129, Ibid). The laws and regulations for the Illinois National Guard, embracing the Naval Reserves, make like provisions; they strictly enjoin obedience to orders, but do not contain special directions for drill nor undertake to particularize the duties of the various officers.

The United States Navy regulations provide that apprentices shall be carefully taught to pull, sail, steer, hook on and handle boats in all conditions of weather. Blue Jackets Manual, a semi-official publication in use by the United States Naval department and Illinois Naval reserves, makes it the duty of the coxswain to instruct the crew in the principles of handling a boat under oars and sail at every opportunity.

The evidence shows that on March 10, 1906, a general order was issued by the Commander-in-Chief, for the annual cruise of the First Division on the United States Steamship Dorothea from August 18 to 25. By virtue of this general order preparatory weekly drills were necessary and ordered by the captain, and by his direction Lieutenant Page, commanding the Division, by order dated June 15, 1906, ordered deceased to report for duty and drill once a week. About 8 p. m. July 5, regular drill night, deceased, with his comrades, reported for duty.

Lieutenant Page commanding, ordered Coxswain Coffee to take deceased and his comrades and give them drill with the boat. No directions were given as to whether the drill should be in rowing or sailing; no directions had been given against sailing. Coxswain Coffee took his men as directed, proceeded from headquarters to the boathouse, launched the boat and proceeded to drill the men in rowing the boat from the boat house to near the mouth of the river. On the return, some of the crew suggested that they sail back. The coxswain acquiesced in this suggestion and ordered the sail hoisted, and they sailed toward the boat house, under the guidance and command of the coxswain. The evidence is quite meagre as to the details of the accident, but does show that quite a stiff breeze was blowing and that when the boat got opposite a gap in the breakwater opposite the foot of Yan Burén street, through which the waves were running high, the coxswain undertook to “tack” and capsized the-boat. Deceased and the entire crew were thrown into the water, and deceased and four of his comrades were drowned.

We are clearly of the opinion that deceased was at the time performing his duty pursuant to lawful orders of his Commander-in-Chief. The order for drilling had been properly transmitted down the line from the Commander-in-Chief. It was within the authority, indeed, was the duty of the coxswain to drill the recruits in sailing. The boat was equipped for sailing. It had been used for that purpose. It is true no express order had eminated from higher authority than the coxswain, to drill with sails, but no such order was necessary; it was his duty to so drill them, and it was clearly within his authority and discretion to determine the time and manner to so drill them. Not only does this appear from the Army and Navy Regulations above quoted, but Coxswain Coffee himself on the witness stand testified: “It was the usual custom to have rowing and sailing given at all times. First, instructions were given in rowing and then in sailing afterwards,” and when asked “In whose discretion was it as to which manner or method the drills should be adopted?” answered, “The party in charge of the boat.” “Which would be' the coxswain.” Answer, “Yes sir.” And Lieutenant Page commanding, when asked, “Has the coxswain discretion after receiving such an order as you gave him that night as to what will or shall be done in the course of his duties ? ’ ’ answered, “Yes sir.” It is very manifest from an inspection of the Naval regulations, pertaining to the duties of the coxswain and seaman, as well as from a consideration of the oral evidence, that it was clearly within the discretion of the coxswain, acting under his orders, to order and engage in drill with sails. He gave such order and in the drill deceased lost his life. It is argued by the State that because the suggestion for such drill came from some member of the crew, the State is thereby in some way relieved of liability. We fail to appreciate how the source of the suggestion can make a particle of difference. In the first place it is not shown that the suggestion came from the deceased; but it would make no difference if it did. The giving of the order was within the authority and discretion of the coxswain, and he gave it; and it does not make a particle of difference where he got the suggestion.

It is -also urged that it is not shown but what deceased was guilty of contributory negligence. It is not necessary to decide whether such question is involved under the statute in question, as we think it is fairly shown by the evidence that deceased’s death was in no way due to any contributory negligence on his part. The evidence clearly shows that the boat was capsized in turning under the management of the coxswain, the man at the helm; and was in no way due to any act or omission on the part of the deceased.

We are therefore of the opinion that deceased was killed “while performing his duty as a * # # seaman pursuant of lawful orders from his Commander-in-Ohief ”; and that his legal heirs have a claim against the State for financial help and assistance, within the meaning of the statute.

It is urged by claimant that the meaning of this statute is that compensatory damages should be allowed, and in view of that contention much evidence has been adduced by claimant, as to the earning capacity of deceased, dependency of the heirs, etc. In the view we take of the meaning of this statute it will be unnecessary to discuss this evidence at length. We do not think the language or purpose of the statute capable of the construction placed upon it by claimant.

Financial help and assistance does not mean compensatory damages. It means a voluntary contribution on the part of the State, in the nature of a pension, and imposes the duty on this Court to determine the amount. We have no doubt that deceased was a most worthy young man, of good habits, fair education, good earning powers, and that his mother and brothers suffered a great loss in his most unfortunate death, and in arriving at our award we do not desire to be understood as fixing an amount that we deem full compensation to them for their loss. Acting on the purpose and spirit, as well as the letter of the law, as we understand it, and keeping in view the precedents of this Court, as well as taking into consideration the needs of the heirs of deceased for “financial help and assistance” we award claimant the sum of two thousand ($2,000.00) dollars.

It is suggested by the State that on the authority of the case of Witte v. State, 1 Ct. of Cl., 249, this proceeding should be on behalf of the legal heirs of the deceased and not by the administrator. We are of the opinion that the proceeding should be, and is, on behalf of the legal heirs of deceased; but we held in the above case that it was proper for the action to be brought by the administrator for the use of the legal heirs, and we adhere to that holding; the proceeds of the award not to go into the general assets of the estate, but to go solely to the heirs, to be distributed by the Court having jurisdiction of the estate, in accordance with law.

We, therefore, award claimant, John F. Devine, administrator of the estate of Joseph Pimes, deceased, for the sole use and benefit of the legal heirs of the deceased, Joseph Pimes, the sum of two thousand ($2,000.00) dollars.


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    James Reddick, Administrator of the Estate of Ralph Heeg, Deceased, v. State of Illinois.

      Opinion filed January 1, 1909.

    Military Service — Reddick, adrar, est. Pimes, v. State ante followed. This claim is based upon, the same state of facts as the claim of Reddick, admr., est. of Pimes, dec’d., v. State, supra, and the law as announced by the Court in the decision of that claim applies to this claim.
    Wm, Pettis and Robt. O. Busse, (Geo. E. Dawson, of Counsel) for Claimant.
    W .H. Stead, Attorney General, and Chas. E. Woodward, Assistant Attorney General, (Roy Wright, of Counsel) for State.
   Deceased, Ralph Heeg, was a seaman of the First Division, Illinois Naval Reserves, and with Joseph Pimes, et. al., was drowned while at boat drill in Chicago harbor on the night of July 5, 1906. The issues and proof as to the accident as well as the stipulations under which the case is submitted are the same in this case as in the Pimes case, and there discussed at length, and what we there said is decisive of this case, and in favor of claimant.

Claim was originally brought by James Reddick, administrator, who has since died, John F. Devine being appointed his successor in his own behalf as such, and for the next of kin. The petition was amended by adding as claimants, Katherine Heeg, mother, Cornelius Heeg, father, Edward, Harvey, George and Lloyd Heeg, by Cornelius Heeg, next friend, brothers of deceased. And the proof is that deceased 'died unmarried and left him surviving said named persons his sole heirs.

Our award in favor of the claimant will be in the same amount as in the Pimes case. We accordingly award claimant, John F. Devine, administrator of the estate of Ralph Heeg, deceased, for the sole use, and benefit of the legal heirs of said Ralph Heeg, deceased, the sum of two thousand ($2,000.00) dollars.


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    Jaimes Reddick, Administrator of the Estate of Robert E. Schrom, Deceased, v. State of Illinois.

      Opinion filed January 1, 1909.

    1. Military Service — Reddick, admr. est. Pimes, v. State ante followed. This claim is based upon the same state of facts as the claim of Reddick, admr. est. of Pimes, dec’d., v. State, supra, and the law as announced by the Court in the decision of that claim applies to this claim.
    2. Oath — failure to take — no defense. The State also makes the additional defense to this claim to the effect that the deceased had not taken the prescribed oath and consequently was not a member of the Naval Reserves. Held, under the facts, that deceased was a member.
    3. Same — facts which will save taking oath. Where an applicant for military service makes due application, appears for service and subjects himself to orders, he will not be heard to say, that he is not in the service. (Poye v. Curtis, 38 Mass., 330; Hammond v. Dunbar, 41 Mass., 172.)
    4. Fraud — only will protect State. Nor can the State, after it has assumed authority over an applicant, and accepted his services, be heard to say that such applicant was not legally in the service, unless such applicant got into the service by fraud.
    Vm. Pettis, (Robt. C. Busse and Geo. E. Dawson, of Counsel) for Claimant.
    W. H. Stead, Attorney General, and Cbas. E. Woodward, Assistant Attorney General, (Roy Wright, of Counsel) for State.
   Deceased, Robert E. Schrom, was drowned with Joseph Pimes, et al., at boat drill in Chicago harbor, on the night of July 5, 1906. The issues and proofs as to the accident, as well as the stipulations under which the case is submitted, are the same in this case, as in the Pimes case, and there discussed at length, except as hereinafter stated; and what we there said applies in this case.

Claim was originally brought by James Reddick, administrator of the estate of Robert E. Schrom, who has since died; John F. Devine, being appointed his successor, and in his own behalf, as such and for the next of kin; the petition was amended by adding Ida E. Schrom, mother, and Ethel Schrom, sister (deceased father, Henry W. Schrom, dying after the death of deceased and leaving as his sole heirs said mother and sister of deceased), whom the proof shows to be the sole heirs at law of deceased, who died unmarried.

The State makes the additional defense in this case that deceased was not a duly enlisted seaman of the Naval Reserves at the time of his death, not having taken the oath. The law requires the recruit to sign an enlistment paper and take an oath (sec. 68, chap. 129, Rev. Stat. 1908). The proof shows that deceased signed an enlistment paper including the oath, and furnished his parents’ written consent to his enlistment on the form prescribed and furnished by the State, and that he delivered the same to the proper officer, Lieutenant Page, who had filled it out, and who was duly authorized by law to administer the oath. The enlistment paper itself is not in evidence, appearing to have been lost at some of the numerous hearings of the case; but proper preliminary proof was made to justify the admission of secondary evidence of its contents, which proof was made and there is left no doubt of its having been so signed and delivered. Just why the oath was not in fact administered and the jurat filled out does not very clearly appear. But it seems to have been regarded as more or less a mere formality and in the stress of other duties, the Lieutenant simply failed to attend to the matter. It appears that both the recruit and his officers regarded him as duly enlisted. He had been instructed concerning the annual cruise and the necessity for drilling therefor; and to get leave of absence from his employer, etc., subjected himself to the orders and discipline of the officers, who assumed such authority over him, was ordered out on the particular drill in which he lost his life, and to all intents and purposes became a member of the Naval Reserve.

Quite a number of authorities are cited by claimant’s attorneys in support of the proposition, that the failure of deceased to get leave of absence from Hs employer and to take the oath is under the facts of this case immaterial; that, nevertheless deceased was a seaman, and his heirs are entitled to the benefit of the statute under which claim is made. Most all of the authorities are inaccessible to us. The State furnishes no authority on the subject. We are inclined to accept claimant’s view. Having made due application for admission and appeared for military service and subjected himself to orders, we think the deceased could not have been heard to raise the objection, that he hadn’t taken the oath. (Foye v. Curtis, 38 Mass., 330; Hammond v. Dunbar, 41 Mass., 172); nor do we think the State, after it assumed authority over deceased as a seaman, can be heard to say that he was not a seaman. By accepting his application, assuming jurisdiction over him and ordering him into service, the State waives the right when he is killed in its actual service to say that he was not properly in its service. It seems to have been through no fault of deceased that the technical requirements of his enlistment were not fully completed. He acted upon the assumption that he was enlisted and was so treated by the State, through its duly authorized officers.

It would be a most unjust doctrine that would enable the State to escape liability on such a ground, and one we refuse to sanction.

We accordingly award claimant, John F. Devine, administrator of the estate of Robert E. Schrom, deceased, for the sole use and benefit 'of the legal heirs of said Robert E. Schrom, deceased, the sum of two thousand ($2,000.00) dollars.


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    James Reddick, Administrator of the Estate of Edward M. O’Carroll, Deceased, v. State of Illinois.

      Opinion filed January 1, 1909.

    Military Service — Reddick,, admr. est. Pimes, v. State ante followed. This claim is based upon the same state of facts as the claim of Reddick, admr. est. of Pimes, dec’d., v. State, supra, and the law as announced by the Court in the decision of that claim applies to this claim.
    ¥m. Pettis, (Robt. O. Busse and Geo. E. Dawson, of Counsel) for Claimant.
    W. H. Stead, Attorney General, and Chas. E. Woodward, Assistant Attorney General, (Roy Wright, of Counsel) for State.
   Deceased, Edward M. O’Carroll, was a seaman of the First Division Illinois Naval Reserves, and with Joseph Pimes, et al., was drowned while at boat drill, in Chicago harbor, on the night of July 5, 1906. The issues and proof as to the accident, as well as the stipulations under which the case is submitted, are the same in this case as in the Pimes case, and there discussed at length; and what we there said is decisive of this case, and in favor of claimant.

Claim was originally brought by James Reddick, administrator of the estate of Edward M. 0’Carroll, deceased, who has since died; John F. Devine, being appointed his successor, >and in his own behalf as such and for the next of kin of deceased; the petition was amended by adding as claimants, Teresa O’Carroll, mother, and Alphonseous O’Carroll, brother, “his heirs and only heirs at law” and whom the proof shows to be the sole heirs at law of deceased, who died unmarried.

Our award in favor of claimant will be in the same amount as in the Pimes case. We accordingly award claimant, John F. Devine, administrator of the estate of Edward M. O’Carroll, deceased, for the sole use and benefit of the legal heirs of said Edward M. O’Carroll, deceased, the sum of two thousand ($2,000.00) dollars.


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    James Reddick, Administrator of the Estate of Antonio Capodice (or Capodici), Deceased, v. State of Illinois.

      Opinion filed January 1, 1909.

    Military Service — Reddick, admr. est. Pimes v. State ante followed. This claim is based upon the same state of facts as the claim of Reddick, admr. est. of Pimes, dee’d., v. State, supra, and the law as announced by the Court in the decision of that claim applies to this claim.
    George E. Dawson, (R .0. Busse and ¥m. Pettis, of Counsel) for Claimant.
    W. H. Stead, Attorney General, Chas. E. Woodward, Assistant Attorney General, (Roy Wright, of Counsel) for State.
   Deceased, Antonio Capodice, was a seaman of the First Division Illinois Naval Reserves, and with Joseph Pimes, et al., was drowned while at boat drill in Chicago harbor, on the night of July 5, 1906. The issues and proof as to the accident, as well as the stipulations under which the case is submitted, are the same in this case as in the Pimes case, and there discussed at length; and what we there said is decisive of this case, and in favor of claimant.

Claim was originally brought by James Reddick, administrator, who has since died; John F. Devine being appointed his successor, and in his own behalf as such, and for the next of kin; the petition was amended by adding as claimants Agostino Capodice, father, Anna Capodice, mother, Mateo, Grinseppe and Salvator Capodice, brothers, and Rosa and Cornelia Capodice, sisters, as his “next of kin and only heirs at law” and whom the proof shows to be the sole heirs at law of deceased, who died unmarried.

Our award in favor of claimant will be in the same amount as in the Pimes case. We accordingly award claimant, John F. Devine, administrator of the estate of Antonio Capodice (or Capodici), deceased, for the sole use and benefit of the legal heirs of said Antonio Capodice, deceased, the sum of two thousand ($2,000.00) dollars.


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    D. J. McCarty v. State of Illinois.

      Opinion filed January 1, 1909.

    1. Damages — for loss of hay crop. Claimant’s crop of hay was damaged by the overflow of water caused by placing water-gates in a brook adjacent to the State School for the Deaf and Dumb at Jacksonville, Illinois. Held, that claimant is entitled to an award covering the amount of his damages.
    2. Ripabian Rights — owner of land has. The owner of land over which a stream flows has a usufruct in the water while it passes, but cannot arrest its flow to the damage of others. (Druley v. Adams, 102 Ill., 177; Batavia Mfg. Oo. v. Newton Wagon Co., 91 Ill., 230.)
    R. L. Montgomery, for Claimant.

      ~W. H. Stead, Attorney General, for State.
   Claimant in the above entitled cause filed his claim on the 28th day of February, A. D. 1908, for the sum of one hundred five ($105.00) dollars, with the Auditor of Public Accounts of the State of Illinois. The Attorney General of the State of Illinois filed the general issue to said claim. The claimant filed depositions in support of his claim.

This is a claim for damages sustained by reason of damage to a crop of hay that was cut and lying in the swath on three and one-half acres of land, which is adjacent to certain land occupied by the State School for the Deaf at Jacksonville, Illinois. The premises in question were leased by the claimant of Thomas Allen, the latter part of June or during the month of July, in the year 1907. The said premises were leased on share rent. Under the terms of the lease, the landlord was to receive one-half of the crop from the claimant for harvesting the hay.

The said hay land is just along a brook in which was constructed water gates, for the purpose of backing up the water to furnish a supply in a reservoir for the use of the said school, and which said water gates and reservoir were under the sole control and management of the said school.

On the 4th day of August, 1907, the said gates being closed, the water in the brook, after heavy and continuous raining at the time in question, backed up and overflowed approximately three and one-half acres of the said rented hay or meadow land of claimant.

It appears from the evidence that the said three and one-half acres would have yielded approximately two and one-half tons per acre, a total of eight and three-fourths tons of hay. It appears from the evidence that there was about one-eighth of an acre of the said three and one-half acres of meadow land, that was high land, and that the overflow of water did not reach the hay at that place.

It appears from the evidence that the managers of the said school were duly notified as to the probable results that would be caused by keeping the said gates in the said brook closed, but that even after having said notice, the gates in the brook were permitted to remain closed and to obstruct the water in the said brook in its natural water course.

It appears from the evidence that the hay in question had been cut on or about the third day of August, 1907, and had been left lying in the swath as cut, and that heavy rains fell on the fourth, fifth and sixth days of August, 1907. It appears from the evidence that these rains would have colored and decreased the strength of the hay. It is quite natural that some sediment would have been dashed against the hay in question by the said heavy rains.

It appears, however, from the evidence, that the said water gates in question were of sufficient size to molest and obstruct the water in its natural water course, and that a part of the damage to the hay in question resulted from the said obstruction. It is therefore the conclusion of the Court that a part of the damage to the said hay was caused by reason of .the said gates having been kept closed as aforesaid, and that the.said hay would háve .been seriously daraaged from the heavy continuous rains.

It appears from the evidence that Thomas Allen, the owner of the land in question, and his father,, who are witnesses in behalf of the claimant for the full amount of damages sustained by reason of the said overflow, and that the said Allen consents and acquiesces that the said claimant shall collect the full amount of damages sustained by reason of the said overflow.

The attorney , for the claimant, cites the following in support of the said claim:

“The owner of land, over which a stream flows, has a usufruct in the water while it passes, but cannot arrest its flow to the injury of others.”

Druley v. Adams, 102 Ill., 177; Batavia Mfg. Co. v. Newton Wagon Co., 91 Ill., 230.

“The grantee of land bordering on a non-navigable stream is entitled to recover damages against the party who, to his injury, diverts the water passing over his land from its natural channel.”

Board of Trustees of Illinois and Michigan Canal v. Haven, 5 Gilman, 548.

“Persons in whose behalf, and under whose direction, a suit is prosecuted or defended in the name of some other person, are bound by the judgment.”

Anderson v. Chic. Ry, Co., 200 Ill., 329.

It appears that claimant and the landlord have mutually agreed that the claimant in the above entitled cause should collect the total amount of damages by them mutually sustained, and that the matter of damages or rent between them would be amicably adjusted.

• It is the opinion of the Court that the claimant has sustained damages by reason of the said water gates having been closed as aforesaid. It is the conclusion of the Court that the claimant be allowed the sum of fifty $50.00) dollars in full for all damages sustained ás stated aforesaid.


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    Lawrence Blickhan v. State of Illinois.

      Opinion filed December 3, 1910.

    Military Service — award for injuries while in. Where a member of the Naval Reserve is injured while in the performance of his duties under orders of the Commander-in-Chief, he may have a claim in this Court and his legal heirs may have a claim, in case he be killed.
    John F. Gamer, for Claimant.
    W. H. Stead, Attorney General, for State.
   Lawrence Blickhan filed his claim on the 11th day of August, A. D.. 1908, with the Auditor of Public Accounts of the State of Illinois, for the sum of two hundred sixty ($260.00) dollars, for an injury sustained while performing his duty as a legally enlisted seaman of the Illinois Naval Reserve, attached to the Tenth Division, located at Quincy, Illinois. Claimant filed depositions in support of his claim in due time. The Attorney General of the State of Illinois plead the general issue to the said claim.

It is established by the evidence that claimant was a legally enlisted seaman, in the Tenth Division of the Dlinois Naval Reserve, at the time of the injury in question. The said Division was ordered by the Commander-in-Chief, unlder what is known as general order number 10, bearing date April 27, 1908, and which said order is now on file in the Adjutant .General’s office in Springfield, Dlinois, which said order commanded a cruise of duty, on board the United States Steamship Dorothea, a training ship used by the State of Dlinois to train its Naval Reserves. The said cruise extended from June 27, to the 4th day of July, 1908, inclusive.

The claimant, while on the said cruise, was ordered and directed by commissioned and acting officers of the Dlinois Naval Reserve, to do and perforin the duties of an oiler in the engine room of said ship. The claimant was a plumber by trade and occupation and not a machinist. While performing his said duties as oiler in the engine room, and while in the exercise of due care for his own safety, he was injured on the 27th day of June, A. D. 1908. The said injury consisted of the permanent loss of the end of the second finger of his right hand, past the first joint, and the pain and loss of time incident thereto. It is contended that the injury interferes or renders the claimant less able to follow his usual vocation.

It is established from the evidence that claimant expended for medical aid, after being discharged by the Naval surgeons, the sum of ten dollars.

The claimant asks one hundred fifty ($150.00) dollars assistance under the statute for the permanent disability sustained, which we deem reasonable.

It is established by the evidence that claimant, by reason of the said injuries, was unable to follow his usual occupation for a period of five weeks, and that he received on an average of fifteen ($15.00) dollars per week, and on account of said loss of time, sustained a loss of seventy-five ($75.00) dollars. We are of the opinion that claimant is entitled to an award of two hundred thirty-five ($235.00) dollars, for financial help and assistance from the State of Illinois.

“In every case where an officer, soldier or seaman of the Illinois National Guard or the Naval Reserve of Illinois, shall be killed or wounded while performing his duty as an officer, soldier or seaman in pursuance of lawful orders from the Commander-in-Chief, said officer, soldier or seaman, or his legal heirs, shall have a claim against the State for financial help or assistance, and the State Board of Claims shall act on aiid adjust the same as the merits of the case may demand.”

Hurd’s Revised Statutes, chapter 129, article 10, section 93.

In consideration of the foregoing, we award claimant, Lawrence Blickhan, the sum of two hundred thirty-five ($235.00) dollars, in full satisfaction of his said claim.


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    Robert Louis Mundelius v. State of Illinois.

      Opinion filed December 3, 1910.

    Military Service — award for injuries while in. Claimant, a member of the Illinois National Guard, while in camp at Camp Lincoln and while in the performance of his duties, was injured by being kicked by a horse. Held, that claimant is entitled to an award on account of such injury sustained and loss of time occasioned thereby.
    C. Fred Rush, for Claimant.
    W. H. Stead, Attorney General, for State.
   Robert Louis Mundelius, claimant in this case, was a member of Troop C, First Cavalry, Illinois National Guard. He enlisted in said organization on November 22, 1906. On August 11, 1907, claimant was at Camp Lincoln with his troop pursuant to general order No. 4, issued by order of the Commander-in-Chief. About 4:30 o’clock in the afternoon of August 11, Troop C was ordered out with the regiment for evening parade.

The claimant, Robert Louis Mundelius, was with his troop, and while the regiment was passing in review before the regimental commander, according to orders by the regimental commander, the claimant was kicked by the horse next to him on the right, which was being ridden by one Corporal Miller.

The horse struck him on the right leg on the tibia midway between the knee and ankle. He was at once taken to the hospital for treatment where he remained five days. The external evidence of the injury was a hole which penetrated into the bone and the bone was splintered. The serious character of the injury did not appear to the surgeon at the hospital at Camp Lincoln, as after four or five days claimant was discharged from the hospital, with the information that there was nothing seriously wrong with his leg, and he was told to walk around on crutches and use his leg as much as he could.

After his return to Chicago claimant’s leg still continued to hurt him and he consulted a doctor in his neighborhood who advised him to go to the hospital. This he did. At the hospital it was found that the wound had become infected and efforts were made by chiseling out part of the bone along the side of the fracture, to institute a perfect drainage and by antiseptic treatment, to overcome the infection and if possible save claimant’s leg.

It was found, however, that it was impossible to overcome the infection, and in March, 1908, the leg was amputated below the knee joint with the object of saving the knee joint. After the operation the original infection still persisted, and it was evident that nothing but an amputation above the knee would be a cure. The leg was again amputated, above the knee, in July, 1908.

During the time of his injury claimant was in the hospital at one time two (2) months and at another time five (5) months and during the intervals was treated at Ms home. Claimant has been unable to do much work ever since he was injured. Prior to his injury he was a barber, earning about twenty ($20.00) dollars per week. Claimant had no means of support except his wages as a barber and had a family consisting of a wife, who was an invalid, one cMld and Ms wife’s mother. During the time since he was injured he has been supported by money borrowed from Ms friends and relatives and by money raised by subscription and donated to Mm. His physician bills have been guaranteed by his friends. The total amount of money borrowed, hospital and surgeon bills, amounts at the present time to about twenty-six hundred ($2,600.00) dollars.

From the facts, as above set forth, it is clear that the case of claimant comes within section 4 of article 11 of chapter 129, being the military and naval code of Illinois, in force July 1, 1903, which was the law at the time of the injury to claimant. The only question which remains in the opinion of the Court, is the amount which should be paid the claimant.

It clearly appears that during the past three years claimant has been able to do very little work so that he has lost almost his entire time for three (3) years. The evidence discloses that he was receiving about twenty ($20.00) dollars per week wages, which for the three years would amount to about three thousand ($3,000.00) dollars. The evidence discloses that he has become liable for money borrowed, physician and hospital bills to about the amount of twenty-six hundred ($2,600.00) dollars; that of this amount about sixteen hundred ($1,600.00) dollars was for hospital and surgeon bills. This shows an actual loss to the claimant in loss of time and extraordinary expenses up to the present time of about forty-six hundred ($4,600.00) dollars. In addition to this loss of time and extraordinary expenses, there is to be taken into consideration the fact, of the extreme suffering that has been endured by claimant, and the further fact, that he is permanently injured and his productive ability greatly reduced.

This is not an ordinary case of the loss of a leg, but is extraordinary by reason of the unfavorable manner in which this wound refused to respond to treatment and the length of time that claimant has been laid up; and it appears to the Court, that claimant should be paid for his loss of time and his unusual expense in connection with the treatment of his wound, in addition to the amount which has been ordinarily allowed by this Court in cases of similar character. Arriving, at a conclusion in this manner, we have therefore fixed the damage of claimant at the sum of fifty-five hundred ($5,500.00) dollars.


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    Henry A. Fowler, Administrator of the Estate of Maria Tomaszewska, Deceased, v. State of Illinois.

      Opinion filed December 3, 1910.

    1. Non-liability of State — what does not constitute claim against the State. In this claim, complainant’s intestate was run over in Lincoln Park by an automobile, which had been commandered by one of the park policemen. Held, that no recovery could he had.
    2. Respondeat Superior — doctrine of not applicable to State. Even though the cause of the accident, which resulted in the death of claimant’s intestate, was the negligence of the park policeman, still there is no liability on the part of the State therefor in view of the well established rule, that the State is not liable for the torts of its officers, agents, servants or employees.
    George McMahon, for Claimant.
    W. H. Stead, Attorney General, for State.
   The record in this case shows that about six o’clock on the afternoon of Sunday, June 28, 1908, claimant’s intestate, Maria Tomaszewska, and her three daughters were in the vicinity of the Grant monument in Lincoln Park, in the city of Chicago, and were crossing one of the park boulevards at this point, when the said intestate was knocked down and run over by a passing automobile, receiving injuries from which she died a few minutes after the accident. The testimony further shows that a few minutes before the accident occurred the automobile in question had been boarded by a park policeman, who was noticed to speak a few words to the driver; that the driver thereupon increased the speed of the automobile; that the policeman rode on the foot-board of the car and was in that position when the car struck claimant’s intestate. It also appears that ahead of the automobile were two motor cycles connected with a rope or wire, tandem fashion, the one in the rear being towed by the former, the rear cycle being out of repair. There is no evidonee as to the identity of the driver of the automobile and no testimony as to what was said by the policeman to the driver, but it is sought to be inferred that the policeman being desirous of overtaking these motor cycles had boarded the automobile, told the driver to increase his speed and that while running at an unlawful rate of speed, and in a reckless manner, the said intestate was struck and killed. The State’s liability to respond in damages in this case is based upon the assumption; that the driver was under the direction of the policeman; that the policeman had been appointed by the Lincoln Park Commissioners, and that the park being a function of the State government, the State is liable for the wrongful act of the park policeman. The evidence further shows that the location of the accident was a dangerous one, the same being at the intersection of four roads, and there is no evidence as to whether the intestate was, at the time, in the exercise of due care and caution for her own safety. There is much discrepancy in the evidence as to the rate of speed at which the automobile was being driven. Three witnesses testify on this point. One James W. Twohig, who himself had been the owner of an automobile for a year, testified that in his judgment the automobile that struck the intestate was moving at the rate of twenty-five miles per hour. One Samuel Lehman, who freely admits that he is not familiar with the speed of automobiles, gives his opinion that the speed was seventy or eighty miles an hour. Dr. A. H. Brumbach, a professor in the College of Physicians and Surgeons, who was driving by in his own automobile at the time -of the accident and who got out of his car to render medical assistance to the intestate, testified that in his judgment the automobile which struck the intestate was moving at the rate of only fifteen miles an hour. Dr. Brumbach had been operating a car for seven years. All witnesses testify that no warning was given by the oncoming automobile as far as they heard.

It is hardly necessary in this case to discuss the general facts, for the reason that even if the evidence showed (which at best it only does by general inference), that the injury resulted from the wrongful or negligent act or acts of the policeman, there is no liability on the State therefor, in view of the well established rule that the State is not liable for the torts of its agents, servants or employees.

In State Bank of Chicago, Administrator, etc., v. State, 1 Court of Claims Report, page 158, claimant’s intestate, who was rightfully in Jaekson Park and' enjoying the same as a public park, was killed by the alleged unskillful handling of explosives in demolishing the World’s Pair buildings by a wrecking company which had contracted with the Park Commissioners to dismantle said buildings. In that case this Court, on page 164, said:

“Public or State officers with only certain powers and duties enjoined upon them by the statutes do not come within the doctrine of respondeat superior.” Applying this rule, the South Park Commissioners, being merely appointive officers, with certain statutory powers, are mere assistants to the State in the exercise of its functions, are created for the purpose of aiding and assisting the sovereign power of the State in carrying on the functions of government, and they are not liable for the negligence or tortious acts of its servants. Where municipalities are created and instituted by general law, there can be no liability for an action for damages, occasioned by the negligent acts of its servants. Waltham v. Kemper, 55 Ill., 346. It has been judicially decided that the Board of South Park Commissioners are not liable in their corporate capacity. How then, can it be claimed that the State is liable for the acts of the commissioners? In this case the remedy is clearly against Mr. Kniffler, who fired the blast, or against the Salvage Company, in whose employ Mr. Kniffler was acting as mechanical engineer.”

In Johnson v. State, 1 Court of Claims Reports, page 208, where an employee of the Board of Park Commissioners of "West Chicago, in using a hose reel to water the grass, tripped up' a bicyclist who was thrown to the ground and injured, this Court said: “The demurrer raises the question whether the State is responsible to the claimant for the wrongful or negligent acts of its subordinate officers. This question has been so frequently decided and the authorities are so numerous, that we deem it only necessary to cite them. (Court then cites Schmidt v. State and Ross v. State.) In these cases the rule has been well settled that a state could not be held liable for the wrongful or negligent conduct of its officers. The principle is so well established by authority as to admit of no doubt.”

In Harper v. State, 1 Court of Claims, page 322, this Court said: “It is contended by claimant that the said Board of Park Commissioners, through its employees, was guilty of negligence in not providing suitable signs and notices, warning people of the vicious tendencies of the zebras in question, and that as said board and its employees were officers and agents of the State, the State is therefore liable for said injuries. The general rule of law is, that the principal is liable for the negligent act of his servants, in the course or scope of his employment upon the application of the principle of respondeat superior; yet a distinction exists as to municipal corporations, such as counties, townships, school districts, road districts, drainage districts and public park districts. To these our Courts have uniformly held that the principle of respondeat superior does not apply.”

“The State, however, is a sovereignty, and the exception which applies to the above mentioned corporations with much greater force and uniformity applies to the State, and it is invariably held that the State is not responsible for the misfeasance, wrongs or negligence or omissions of duty of subordinate officers or agents, for it does not undertake to guarantee to any persons the fidelity of any of the officers or agents whom it employs. That would involve it in all its operations, in embarrassments, difficulties and losses, which would be subversive of the public interest.”

In Hollenbeck, administrator, v. Winnebago County, 95 Ill., 148, 162, the Court said: ‘‘ No reason is perceived why a county should be held to respond in damages for the negligence of its officers. * * * In fact, the powers and duties of counties bear such a due analogy to the governmental functions of the State at large, that as well might the State be held responsible for the negligent acts of its officers as counties.”

It is needless to pursue this line of authorities further. In the case at bar, it is not clear that the deceased was in the exercise of due care and caution for her own safety; it is not clear that the policeman was directing the driver of the car in his movements; it is not clear that the car was being driven in a reckless manner or at an unlawful rate of speed; it is not clear that the failure of the driver of the car to blow his horn and give warning was the fault of the policeman; it is not clear that the death of the deceased was the proximate result of the negligence of the policeman. But, if for the sake of argument, it be admitted that all of these propositions have been clearly proven, still the liability attaches to the policeman individually, and by no process of legal reasoning does it attach to the State of Illinois. The claim is therefore rejected.


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    James McMillan, doing business under the firm name and style of James McMillan and Company, v. State of Illinois.

      Opinion filed January 21, 1911.

    1. Contracts — proposals. Where a proposal is submitted by a contractor and the same accepted, it is incumbent. upon the contractor, in a suit to recover therefor, to show that the article was furnished in accordance with the proposal.
    2. Same — retention of article. When the contract Axes the time within which the purchaser may reject the article, the retention of the same for a longer period will amount to an acceptance of the same.
    . 3. Same — interpretation. Where there is doubt or uncertainty as to the proper construction to be given the terms of a contract, recourse may be had to the interpretation the parties have put upon it.
    W. S. Corbin, for Claimant.
    W. H. Stead, Attorney General, for State.
   Claimant filed his claim on the 24th day of April, A. D. 1909, with the Auditor of Public Accounts of the State of Illinois, for the sum of twenty-six hundred twenty-five ($2,625.00) dollars, alleged to be due from the State of Illinois to the claimant to balance account for eight James McMillan Smokeless Furnaces and eight sets Whelan Shake and Dumping Grates and sundry items of repair and material as set forth in claimant’s bill of particulars. The Honorable W. H, Stead, Attorney General of the State of Hlinois, plead the general issue to the said claim.

A commission was created by an Act of the Genera] Assembly of the State of Illinois, entitled “An Act to provide for the repair of the State Capitol Building at Springfield, Illinois,” and making appropriations therefor, approved May 18, 1905, in force July 1, 1905, which said commission consisted of the Governor, Lieutenant Governor, Secretary of State, Auditor of Public Accounts, the Attorney General and State Treasurer of the State of Illinois.

Claimant made the following proposal to the said commission, which proposal was accepted, and the said proposal is in the words and figures as follows, to-wit:

“Chicago, October 4,1906.

W. Carbys Zimmerman,

State Architect,

Dear Sir: — We propose to equip eight (8) 66'x16' horizontal tubular boilers situated at the State Capitol Power Building, Springfield, Illinois, complete with the James McMillan Smokeless Furnace for the sum of three hundred ($300.00) dollars per boiler on the following conditions:

We will allow you a thirty days trial of these furnaces, and if they do not prevent ninety per cent of the smoke, we will remove them without any cost to you. If after a trial of thirty days these furnaces do prevent ninety per cent of the smoke, we are to receive the above amount mentioned.

We will guarantee these furnaces will cost you nothing for repair for one year; should any repairs be necessary, we will take care of same at our own expense. In looking over the boilers we find the iron door liners are badly burned and also that the grate bars are in very bad condition. We have a special tile door liner made of high grade Pennsylvania fire brick which will stand much better than iron, which we will furnish and set in position and do necessary brick work around same for an additional sum of forty ($40.00) dollars per boiler.

We further propose to furnish and set in place a straight common grate bar with a five inch air space, five feet long and six feet wide, heavy pattern for the sum of seventy-five ($75.00) dollars per boiler, or if you prefer'a shaking grate we would furnish and set in place a Whelan Shaking and Dumping grate for the sum of one hundred and five ($105.00) dollars per boiler. Very respectfully,

James McMillan & Company.”

No additional conditions were added in the acceptance of the said proposal, nor was there any change in the terms or conditions of the said proposal except, that the said smoke consumers should be placed into one boiler at a time, so as not to shut down the plant. The sum of two hundred twenty-five ($225.00) dollars to balance account for material, appliances and labor performed by claimant with reference to sundry repairs and improvements, not including the said eight McMillan Smokeless Furnaces, has not at any time, so far as the records disclose, been in dispute. It appeared during the oral argument of the said claim that the said sum of two hundred twenty-five ($225.00) dollars had never been disputed, and could have been paid at any time. It does not appear that claimant at any time made any specific request for this particular amount, but that it was presented in the statement which included the twenty-four hundred ($2,400.00) dollars for the said eight McMillan Smokeless Furnaces. It is not established by the evidence that the commission at any time accepted the said McMillan Smoke Consumers, and therefore the item in claimant’s bill of particulars which is and has been in dispute is the eight James McMillan Smoke Consumers placed in the horizontal tubular boilers at the State Capitol Power House at Springfield, Illinois, the proposed price being three hundred ($300.00) dollars per smoke consumer, making a total of twenty-four hundred ($2,400.00) dollars in dispute between the said claimant and the State of Illinois.

It is urged by the claimant that the eight smoke consumers complied with the conditions of the. said proposal, and that they were accepted by the said repair commission through its alleged agent, James E. Cole. It is not established by the evidence that the smoke consumers complied with and fulfilled the conditions of the said proposal. We are of the opinion that there has not been any legal acceptance of the said eight smoke consumers by the commission at any time, and the record does not disclose that the said commission in any way directed or attempted to confer any power on the said Cole to accept the said smoke consumers in behalf of the said commission. It appears that in about thirty days after the said smoke consumers had been installed, that they were not working satisfactorily, and that this information was communicated to the claimant, and in fact and legal effect the time for testing the said eight smoke consumers was by mutual and common consent extended and continued indefinitely. It appears from the evidence that the claimant and defendant were to arrange for some subsequent date for the final test of said eight smoke consumers under the conditions of the said proposal.

It is urged that the letter bearing date January 22, 1907, to James McMillan & Company, signed by James E. Cole, Superintendent of Construction, is an acceptance of the smoke consumers in question. The text of the letter is:

“In reply to yours of January 18, I wish to say that bills for furnaces, etc., must be made out to the State of Illinois, and sent to me for approval.

I wish to say that the consumers are not working as satisfactorily as I expected, but I have not had the time to look into the matter to find out where the trouble lay.”

This letter clearly cannot be held to be an acceptance. In the first paragraph it directs how the bills are to be made out and the bills sent for approval. This does not express or imply that James E. Cole personally was to pass upon the approval or disapproval of the smoke consumers. In the second paragraph of the said letter it appears that the smoke consumers are not working as satisfactorily as expected, and that the superintendent had not had the time to look into the matter and find out where the trouble lay. The burden of proof is upon the claimant to prove that the smoke consumers were in accord with the said proposal, and that they prevented ninety per cent of the smoke as specified in the said proposal. Certain photographs and other evidence is introduced to establish that the smoke consumers did consume ninety per cent of the smoke. No test of any kind, except the ordinary use, occurred within the thirty days and the test that occurred on August 6,1907, was not a satisfactory or complete test under the said proposal. The smoke consumers to fulfill the requirements of the said proposal should consume ninety per cent of the smoke as fired by the regular fireman employed to fire the boilers in question. That no acceptance had occurred during the first thirty days’ trial is apparent from claimant’s letter bearing date July 27, 1907, in which a proposal is made to go down to Springfield on August 1, to make a test on the McMillan furnaces located at the State Capitol Power House. It appears from the evidence that the boilers during this test were only carrying a very small load, and that there were a very few lights burning, and that the principal load was an elevator. This we do not consider an adequate test under the said proposal.

It is urged that Mr. Cole has made certain admissions with reference to accepting the consumers in question. This, however, is denied by Mr. Cole and apparently is not well founded. It is sufficient to say that it was not in his province to accept 'or reject the smoke consumers, but that the approval or disapproval of the smoke consumers under the said proposal was and remained with the repair, commission. It was incumbent upon the claimant to ascertain the extent of authority conferred upon James E. Cole by the commission or law.

It is urged that the letter bearing date April 11, 1908, signed by Janies A. Rose, was an admission of acceptance. This we do not think is the proper interpretation of that letter. It appears from the evidence in a letter written by Governor Charles S. Deneen, .that the commission desired a report or certificate from the State Architect regarding the character of the improvements made before the commission con-, sidered the matter of approval and payment.

On January 16, 1908, claimant wrote to James E. Cole, Superintendent of Construction, the following letter:

“Chicago, Illinois, January 16, 1908.

Mr. James E. Cole,

Superintendent of Construction, .

Supreme Court Building.

Dear Sir: — Some time ago we wrote you in regard to the McMillan Smokeless Furnaces under the boilers at the State Power House, yet we have not heard from you. These furnaces were to be tried in the cold weather. They cannot be tested if they are not in shape, and as the weather is not all right to make such a test we would suggest that we would get down there and make this test at once as agreed upon. Kindly let us hear from you at once in regard to this matter.

Very respectfully,

James McMillan & Co.”

■ In the said letter it is established that a new subsequent test had been agreed upon. It appears from the said' letter that the test referred to therein should be made in eold weather. It is substantially admitted that the test in August was not a complete or proper test under the said proposal.

It is clearly established that at no time prior to January 16, 1908, were the smoke consumers in question accepted, and that claimant desired to make another test so as to determine whether or not they had fulfilled the contract under the said proposal. It does not appear that claimant took any steps whatever to make the test just suggested, and we cannot assume that he was prevented from making another test, or that the absence of a test is equivalent to an approval and acceptance of the smoke consumers. The time limit in the said proposal is not the essence of the contract in question, but whether the smoke consumers did consume ninety per cent of the smoke, and fulfill the requirements in the said proposal. Under the said proposal claimant allowed the State of Illinois thirty days’ trial of the smoke consumers, and if they did not prevent ninety per cent of the smoke, claimant would remove them without any cost to the State.

Hyde v. Love Bros., 63 Ill. App., page 45.

It appears from the evidence that on May 17, 1907, the furnaces were smoking as badly as ever, although the weather was warm, and while the usual workmen were then firing the boilers. The smoke consuming devices consisted of a brick arch built in the furnace.

In a letter bearing date December 18, 1907, the following language appears:

“I am informed by the engineer at the State Power House that the arches installed by you are falling down. I have not had time to look into this matter thoroughly, but he reports practically all of them in the same condition. If I remember rightly your contract calls to keep same in repair for a year, but I do not desire you to do anything in regard to this patching until further orders, as the question is still open in regard to taking these arches out.”

This is a letter written to the James McMillan & Company by James E. Cole, Superintendent of Construction.

On March 18, 1907, claimant in a letter to Mr. Cole says:

“We will come down to Springfield, and prove to your entire satisfaction that the McMillan furnaces can and will comply with all the requirements of the contract.”

This letter is prior to the letter written to Mr. W. Carbys Zimmerman by James E. Cole, May 17, 1907, in which Mr. Cole states that he has never at any time accepted same, nor had he given McMillan any reason to think that there was any possibility of his accepting same until the smoke consumers had fulfilled the terms of the contract. It also appears from the said letter that the furnaces at the time they were installed appeared to take care of the smoke for a very short time, but after that they were smoking as badly as ever.

It is urged that after the installation of the smoke consumers the heating system at the capitel building was changed and the radiation increased and that more boilers were required in keeping up steam than prior to the installation of said smoke consumers. It also appears from the evidence that the heating system was so changed, that the amount of boiler capacity to keep up steam and power was not materially increased. Mr. "Whitney, the electrician, testified that there did not seem to be much difference in the amount of smoke before and after the installation of the smoke consumers. This, and other evidence in the record discloses, that the smoke consumers were not fulfilling the requirements of the contract during the first thirty days.

It appears from the evidence that after the smoke consumers in question were installed, that it required six boilers in the place of four which had been sufficient to furnish steam and power. It is urged that the State kept the furnaces until they were burned out and destroyed. This does not appear to be the proper interpretation of the attitude of the State. It is fully established by the evidence that the defendant was desirous of giving the plaintiff every opportunity to so construct and perfect the smoke consuming devices, so as to fully comply with the terms of the proposal and subsequent representations.

It is urged that when the contract fixes the time within which the purchaser may reject, the retention of the article for a longer period of tiitíe amounts to ,an acceptance, and thereby makes the purchaser liable for the purchase price. The contention just urged is not supported by the facts in this case, as the acts of claimant and defendant clearly demonstrate, that the first thirty days ’ trial limit was waived, and the matter of testing the said smoke consumers continued from time to time, with the mutual understanding, that in the .future a complete test was to be made and the matter of approval or rejection finally determined. The written proposal was varied with reference to the time limit by subsequent transactions and conversations. It is conceded by claimant that neither Mr. Zimmerman, the State Architect, nor Mr. Oole, Superintendent of Construction, had been made arbiter with power to decide upon the character or quality of the work. The defendant does not appear to have taken the position that a certificate from the State Architect, or the Superintendent of Construction, was a condition precedent to payment, but that the commission desired a report from the State Architect, or the Superintendent, regarding the character of improvements made before considering the matter of approval and payment. It cannot be said that the report requested from the Superintendent of Construction by the commission was unreasonable.

We do not consider the case in question parallel with the case of McMillan v. DeTamble, 93 Ill. App., page 65. In the said case on page 69, the following language appears: “There was evidence tending strongly to show that defendant made no objection to the furnace during the thirty days’ trial of it, which was given; that he did, in fact, accept it, and made no objection to paying for the furnace until long after the expiration of the thirty days; also, that the furnace complied with the conditions mentioned in the contract.” Claimant was informed in about thirty days, that the smoke consumers were not working satisfactorily and had not been, but for a very short time. This was during the first thirty days’ trial, and no. acceptance can be assumed to have occurred.

Mr. Cole was asked the following questions (Defendant’s evidence, page 9.): “Have you any opinion with reference to what per cent of the smoke was prevented by the smoke consumers, if any?” A. “I should say that from twenty to twenty-five per cent reduction of smoke would be a very high estimate.” Considering, that he was in charge of the construction and unquestionably in a proper position to judge as to the efficiency of the smoke consumers, this estimate by the Superintendent of Construction is significant.

We are of the opinion that claimant under the said proposal and subsequent acts, transactions, conversation and correspondence, contracted and guaranteed to install eight smoke consumers, that would consume ninety per cent of the smoke of the boilers in question, and that the smoke consumers did not fulfill the requirements of the said proposal or subsequent representations and should have been removed by claimant.

“ * * * The meaning of a written contract is ordinarily a question of law for the Court and not one of fact for the jury, but if the construction depends not only upon the meaning of the words employed but upon extrinsic facts and circumstances, or upon the construction which the parties themselves have placed upon the contract, which is to be proved like any other fact, if such facts are controverted, the inference to be drawn is for the jury, and in such a case the whole question as to what the contract was, should be submitted to the jury under proper instructions.”

Turner v. Osgood Art Co., 223 Ill., 629, 635.

In consideration of the foregoing, we are of the opinion that claimant should be awarded the sum of two hundred' twenty-five ($225.00) dollars, to balance account for items of account referred to herein, and that the claim of twenty-four hundred ($2,400.00) dollars for the eight smoke consumers in question should be rejected.

Claimant James McMillan is therefore awarded the sum of two hundred twenty-five ($225.00) dollars.


text:
    William McKinley, R. W. Hood and J. R. Ebersole. v. State of Illinois.

      Opinion filed January 31, 1911.

    1. Corporations — license fees.

    “That all companies and corporations hereafter organized under the laws of the State of Illinois, before they shall be permitted to file any papers in the office of the Secretary of State, or make any application for the purpose of becoming incorporated, shall pay to him fees as follows: All companies having a capital stock of * * * $5,000.00, shall pay the sum of $50.00.”
    Hurd’s Rev. Stat., 1909, chap. 53, par. 10a.
    2. License Fee — when no recovery of. Where an application for a license to open books for subscription to the capital stock of a corporation is made, accompanied by the license fee, and the license issued, no refund of the fee or any part thereof can be made, no matter whether the books were opened or not, or whether the incorporation was completed or not.
    3. Same — retention by State. The retention of the license fee by the Secretary of State is in no way conditional upon the Commissioners taking any further steps.
    E. P. Field, for Claimant.
    W. H. Stead, Attorney General, for State.
   The statement of claim in this case shows that William McKinley, R. W. Hood and J. R. Ebersole, claimants, did on October 22, 1904, file in the office of Honorable James A. Rose, Secretary of State of Illinois, a statement duly signed and acknowledged according to law, for the purpose of forming a corporation to be known as “The Monmouth Military Tract Bindery,” with a capital stock of five thousand ($5,000.00) dollars ; that in pursuance of the filing of said statement the Secretary of State issued to said applicants, as Oommissioners, a license to open books for subscription to the capital stock of said corporation, and that after said license was issued, books were not opened by said Commissioners for subscription to the capital stock of said corporation, and that after the issuance of said license no action whatever was taken to complete the organization of said corporation.

To this claim the State of Illinois, by W. H. Stead, Attorney General, filed' a general demurrer. The ground of demurrer on the part of the State is that the fee in question was paid voluntarily and that it is indivisible.

The Court is of the opinion that the contention of the State is well founded. The provision of the statute in reference to the case at bar is par. 10a, chap. 53, Hurd’s Revised Statutes 1909, which is as follows: “That all companies and corporations hereafter organized under the laws of the State of Illinois, before they shall be permitted to file any papers in the office of the Secretary of State or make any application for the purpose of becoming incorporated, shall pay to him fees as follows: All companies having a capital stock of * * * $5,000.00 shall pay the sum of $50.00.”

. From this provision of the law it is clear that payment of the sum of fifty dollars ($50.00) was a requirement which must be complied with, before the Secretary of State could issue any papers whatever, and the retention of the fee by the Secretary of State is in no way made conditional upon the Commissioners taking further steps.

The law does not make this fee divisible, and this Court has no authority to decide this case contrary to the plain provisions of the law.

The Act creating the Court directs, sec. 5, par. 333, chap. 37, “ * # * such Court shall hear such claims according to its rules and established practice and determine the same according to the principles of equity and justice except as otherwise provided in the laws of this- State. * *

It is clear from the language of the Act just quoted,' that this Court has no authority to arbitrarily disregard the plain provision of the law involved in this ease, as contended for by attorney for claimants, on the ground of equity and justice.

This Court is bound by the plain provision of this law and is not authorized to legislate in favor of claimants. The demurrer is therefore sustained and the case is dismissed.


text:
    Jennie Sanford Griffith, Executrix of the Last Will of Merritt E. Sanford, Deceased, v. State of Illinois.

      Opinion filed February 16, 1911.

    1. Inheritance Tax — stocks and bonds of foreign corporations not subject to. In this claim the inheritance tax was assessed and fixed by the county judge of Cook County on all of the property of deceased, which included stocks and bonds of foreign corporations, which tax was paid by the executrix under protest. An appeal was prayed by the executrix to the county court, which court reduced the tax, eliminating from the appraisement the stocks and bonds of foreign corporations. An appeal was then prayed by the People to the Supreme Court, which Court affirmed the decision of the county court, as to the amount of the tax to be paid by the beneficiaries, but reversed that part which ordered the county treasurer to repay the sum of §497.00. (People v. Griffith, 245 Ill., p. 532.)
    2. Statute — section 10 construed. Sec. 10 of the inheritance tax law provides that when any amount of inheritance tax “shall have been paid erroneously to the State Treasurer, it shall be lawful for him on satisfactory proof rendered to him by said county treasurer of said erroneous payments, to refund and pay to the executor, administrator or trustee, person or persons who have paid any such tax in error the amount of such tax so paid, provided, that all applications for the repayment of said tax shall be made within two years from the date of said payment.” In construing this section the Supreme Court in the Griffith case, supra, held that it was not the intention to authorize county treasurers to repay tax erroneously paid to them, but that the State Treasurer, upon proper proof, is to refund such amounts.
    3. Voluntary Payment of Illegal Tax — may not be recovered. It is a well established principle of law in this State, that there can be no recovery of taxes erroneously or illegally paid, unless the same were paid under duress or compulsion. (Yates v. Insurance Co., 200 Ill., 202.)
    4. Paid Under Protest — may be recovered. In this claim the executrix endorsed on the check “paid under protest” and since simple payment under protest would not amount to duress or compulsion, claimant, to recover, must recover, if at all, under section 10.

      5. Statute of Limitations — does not run pending appeal. The requirement of section 10, that application for repayment must he made within two years from the date of payment, does not apply where an appeal is pending.
    Musgrave and Lee, for Claimant.
    W. H. Stead, Attorney General, and Roy Wright, Assistant Attorney General, for State.
   The evidence in this cause shows that Merritt E. Sanford, a resident of Rome, New York, died in Chicago, October 28, 1906. His will was admitted to probate in Cook County on the petition of his sister, Jennie Sanford Griffith, to whom letters testamentary were issued as executrix, November 27, 1906. Sanford died seized of real estate in Chicago valued at $20,000. He was also found to be the possessor of certain securities, which were found in a safe deposit vault in Chicago, where they had been deposited by decedent for safe keeping. These securities and their appraised values were as follows: Certificates of stock of Illinois corporations, $21,575; certificates of foreign corporations, $24,962.50; bonds issued by Illinois corporations, $19,484.58; bonds issued by foreign corporations, $38,910; and bonds of a railroad company organized under the laws of Illinois and Iowa, of the value of $9,100. He also left cash on deposit with certain Chicago banks, to the amount of $1,194.76, and other personal effects and chattels in Cook County valued at $1,523. The inheritance tax appraiser appointed by the county court of Cook County, included in his appraisement of property all the property above mentioned. The county judge of Cook County, upon such report and appraisement, assessed and fixed the inheritance taxes to be paid by the beneficiaries under the will, at $1,423.25, and on April 26, 1907, the executrix paid to the county treasurer of Cook County, the sum of $1,352.09, being the taxes so fixed, less five per cent deducted, in accordance with the statute, on account of payment within six months after testator’s death. Payment of this amount was made by check and upon the check the words “paid under protest” were endorsed by the attorneys of the executrix. Subsequently the money so paid was turned over to the State treasury by the county treasurer of Cook County. From the order of the county judge fixing the taxes, an appeal was prayed by the executrix to the county court of Cook County, where after a hearing on May 17, 1909, the stocks and bonds of foreign corporations were held by that court not subject to an inheritance tax under the laws of this State.

The same court found that the taxes, on the remainder of the property included in the appraiser’s report, should be $900, and! ordered that the county treasurer refund to the executrix, the sum of $497.09, being the difference between the amount previously fixed by the county judge and the amount as finally fixed by the county court, less the discount in both cases. From this judgment of the county court of Cook County an appeal was taken by the People to the Supreme Court of Illinois, which said Court, on June 29,1910, affirmed the judgment of the county court, as to the amount of inheritance tax to be paid by the beneficiaries in this estate, but reversed that part of the judgment ordering the repayment by the county treasurer of the said $497.09. (People v. Griffith, 245 Ill., 532.)

The construction of section 10 of the Inheritance Tax Act was involved in this cause. This section provides, that when any amount of the inheritance tax “shall have been paid erroneously to the State Treasurer, it shall be lawful for him, on satisfactory proof rendered to him by said county treasurer of said erroneous payments, to refund and pay to the executor, administrator or trustee, person or persons who have paid any such tax in error the amount of such tax so paid, provided, that all applications for repayment of said tax shall be made within two years from the date of said payment.” In reference to this section, the Supreme Court held that it was not the intention of this section to authorize the county treasurer to repay taxes erroneously paid to him, but, that the State Treasurer, upon proper proof, was to refund such amounts. To secure such a refund of the said $497.09, now covered into the State treasury, is the object of the claimant in filing her claim in this Court.

It is a well established principle of law in Illinois, that there can be no recovery of back taxes, erroneously or illegally paid, unless the same were paid under actual duress or compulsion. Yates v. Insurance Co., 200 Ill., 202, and cases cited.

Upon the check, by which payment of the taxes in question was made, the endorsement of the words “paid under protest” obviously did not amount to payment under duress or compulsion. Therefore, if recovery can be had in this cause, it must be had under section ten, above referred to, which section makes special provision for repayment in case of erroneous payments in the matter of an inheritance tax.

The difficulty encountered in this regard, however, is the requirement of said section ten, that application for repayment must be made within two years from the date of payment. In this case, payment was made to the county treasurer, April 26, 1907, and the two years’ limitation therefor had run April 26, 1909. The evidence further shows, that neither during that period, nor afterward, was any application made to the State Treasurer for repayment, either by the county treasurer of Cook County, or the claimant, and the question therefore arises, whether claimant is barred of recovery in this cause by limitation.

Section ten, referred to above, is somewhat vague and uncertain as to the manner in which application for repayment is to be made, or as to the person by whom or to whom such application is. to be made. As conditions precedent to repayment, two incidents are to concur: First, the county treasurer is to render to the State Treasurer satisfactory proof of the erroneous payment and, secondly, an application is to be made for repayment, but whether application is to be made by the payer to the county treasurer, by the payer to the State Treasurer, or by the payer to the county treasurer and then by the county treasurer to the State Treasurer, is not at all evident from the context.

It would seem to be the most natural method, however, for the person who had erroneously paid the tax to the county treasurer, to apply for repayment to the very same officer to whom payment in the first instance was made, and that the county treasurer, who is presumed to have paid this erroneous tax to the State Treasurer, would thereupon make proof of the erroneous payment to said State Treasurer and the latter officer then make repayment.

Again, under section ten referred to, repayment is to be made by the State Treasurer upon satisfactory proof being made to him, by the county treasurer, of the erroneous payment. It is unlikely that the county treasurer would render such proof, unless application were first made to him for repayment by the party erroneously paying the tax, notice of the erroneous payment being thus brought to his attention, and it is not unreasonable to suppose that this is the application which is intended should be made within the two years period.

There is no definite direction in section ten as to this matter of application, and there is nothing in the section to indicate that the application is to be accompanied by any formality. In this case, at the time the tax was paid, claimant expressed protest by endorsing the same on the check. This protest was followed by an appeal by the claimant, from the order of the county judge, fixing this tax and by the time the county court rendered its opinion that part of the tax was illegal, the limitation had run. There was no laches or lack of diligence on the part of claimant. She was protesting against the payment all the time and was seeking relief from the same by the only legal remedy at hand, following her remedy to the Supreme Court of the State. Her acts and conduct in the matter constituted a constructive application of the very strongest kind and was of a continuing character.

From all the facts in this case, it is the opinion of this Court, that not only as a matter of equity and justice is claimant entitled to an award, but such an award is also in conformity with law. Her claim for $497.09 is therefore hereby allowed.