text:
    Frederick W. Tierney v. The State of Illinois.

      Opinion filed December 31, 1902.
    1. Commission of Claims—Law creating commission does not create new liability against State. The law creating the Commission of Claims does not undertake to create a new liability against the State, but provides a method by which claims against the State may be heard before this Commission and claims rejected or awards made in favor of the claimant. Such Commission shall hear such claims according to its rules and established practice and determine the same according to equity and justice, except as otherwise provided in the laws of this State.
    2. Statutes—Will usually not be given a retrospective operation. A statute will not be given a retrospective operation, even though such an operation will not violate the paramount law of the constitution, unless there is a clearly expressed intention that it shall have such an operation.
    3. Same—When to be construed to have a retrospective operation. A statute will be construed to have a retrospective operation only when the language is so clear as to admit of no other construction.
   The claimant in this case, Frederick W. Tierney, was a member of Company A, 4th Regiment, Illinois Rational Guard, of Areola, Illinois, and was with the fourth regiment during its service in the Spanish-American war.

Frederick W. Tierney resided on a farm near Humboldt Station, six miles south of Areola on the Illinois Central railroad.

On the 10th day of July, A. D. 1900, he received a card from an officer of his company notifying him to report at the armory at Areola at 9 o’clock on July the 14th, prepared to proceed to Camp Lincoln at Springfield, Illinois, for the annual encampment.

In pursuance of said order the said Frederick W. Tierney, on the morning of the 14th of July, A. D. 1900, went to Humboldt, Illinois, for the purpose of taking a passenger train from Humboldt to Areola, but just as he arrived at the station the passenger train pulled out and left him. A freight train was standing on the sidetrack. He explained to the train men his anxiety to reach Areola on time, and was permitted, either by the conductor or brakeman, to get into a box car, said freight train not being permitted to carry passengers. When the train arrived at Areola he found that it was not going to stop, and only slowed up a little for the Vandalia crossing. Seeing that his only chance of getting to the armory on time was to endeavor to get off, and as the engineer was apparently increasing his speed, he attempted to get off.

He looked out of the car and saw a pile of cinders, and thinking it would furnish him a good place to light he jumped from the car out of the side door while the car was in motion. In making the effort to get out he fell and both feet were caught under the car wheels and both feet were badly mashed, so that his left foot had to be amputated below the knee and his right foot near the instep. Claimant is permanently injured and unable to follow his occupation of farming, or to engage in any other occupation whereby he may earn a living for himself where any considerable physical exertion is required. The evidence clearly discloses that the claimant is a sober, honest and industrious young man. But do the facts constitute such a case as will justify this Commission in mailing an award in favor of claimant.

In this case, as is usually the case, there seems to be a misunderstanding of the.powers of this Commission. In complainant’s brief, it is frankly admitted that if in the decision of the case we are to be controlled by the stem rules of law, the same as if claimant brought suit against a railroad company in a State court, that the claimant must fail.

But it is argued that the act creating this Commission, and prescribing its powers and duties, confers upon the Commission the power to decide cases in such a manner as would seem to be just and equitable to the Commission, wholly regardless of the established principles of law and equity as administered by the courts.

The uniform holding of the Commission, however, has been different, as shown from the following language taken from the opinion of the Commission in the case of Jacob Schmidt v. The State, decided in 1890.

“The law creating this Commission does not undertake to create a new liability against the State, but provides a method by which claims against the State may be heard before this Commission and claim rejected or award made in favor of the claimant- The statute creating this Commission, after reciting the various classes of claims of which the Commission might have jurisdiction, among which may be said to be included claim of this petitioner, provides: ‘and such commission shall hear such claims according to its rules and established practice and determine the same according to equity and justice, except as otherwise provided in the laws of this State and shall file with the records of each claim determined a brief written statement of the reasons of the determination.’

The point has been pressed in argument by counsel for claimant that the Legislature would have the right in a case of this kind, in its discretion, to allow a reasonable sum to persons injured, making an appropriation for its payment although the claim was, strictly speaking, neither a legal or equitable claim, and that the intent of the act creating this Commission, was to transfer to this Commission the same discretionary power that the Legislature would have; or in other words, that the Commission would be justified, although believing the claim was neither an equitable or legal claim against the State, in its discretion to make an award against the State in favor of claimant. To this proposition we cannot assent. It is our understanding that in the use of the language, to determine the same according to the principles of equity and justice, is meant and used with a legal signification, and that this Commission has no power to make an award in any case, unless the facts-show a legal or equitable claim against the State. We do not believe it was the intention of the Legislature to leave it discretionary with the Commission to make an award in favor of the claimant regardless of the question as to whether or not he had a legal claim against the State.

“We are of the opinion further, that it would be an exceedingly dangerous precedent, to hold that the Commission had any such discretion. While it is true (and we have endeavored in this case to find some principle upon which we might make an award in favor of this claimant) that his health and usefulness have been practically destroyed, recognizing that it is one of those cases appealing strongly to the sympathy of those who have heard this evidence, or are familiar with the facts in the case, and we can not but believe that if the facts of this case are presented to the Legislature of this State, that some relief will be granted to this unfortunate claimant, yet, at the same time, we feel compelled to hold that we have no power under the facts, to make an award in his favor, and for that reason we reject the claim.”

We quote from the opinion in the above case, decided by a former Commission, not because the facts are similar to the case now before the Commission, but for the purpose of showing that the practice of the Commission has not been as contended by counsel for claimant in this case, “to create new and additional liabilities against the State,” but simply to provide a method by which legal and equitable claims against the State may be heard and passed upon.

It is practically conceded that there is no common law or statutory liability on the part of the State under the facts in this case, unless section 4 of the Military and Naval Code of Illinois, as amended by laws of 1901, Hurd’s R. S. page 1713, Section 68a, creates such liability.

Section 4 of the Military and Naval Code of Illinois, as amended by laws of 1901, which went into effect July 1, 1901, provides that, “In every case where an officer, soldier or seaman of the Illinois National Guard or the Naval Militia of Illinois shall be killed or wounded while performing his duties as 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.”

It is contended by counsel for claimant, that as the constitution only prohibits the passage of expost facto laws, and does not apply to retrospective laws which merely affect private rights, and as the language of the statute does not limit it to cases which occur after the passing of the act in question, that it would be held to apply to past as well as future accidents which come within the provisions of said statute.

It is true that the constitution does not prohibit the passing of retrospective laws which are not expost facto laws; our Supreme Court has however held that, “a statute will not be given a retrospective operation, even though such an operation will not violate the paramount law of the constitution, unless there is clearly expressed intention that it shall have such an operation.”

Garret v. Wiggins, 1 Scammon, 335;

LaSalle v. Blanchard, 1 Ill. App., 635;

Marsh v. Chesnut, 14 Ill., 223.

“It will be construed to have a retrospective operation only when the language is so clear as to admit of no other construction.”

Robinson v. Rowan, 2 Scam., 499.

“A statute is retrospective in its operation only where it is made so in its terms.”

Deininger v. McConnel, 41 Ill., 227.

There being nothing in the provisions of section 4 of the statute above referred to indicating an intention to give it a retrospective operation, the Commission are of the opinion that the provisions of section 4, of the Military and Naval Code, above referred to, do not apply to the case now before the Commission, the injury in this case having occurred several months before said statute went into effect.

In view of the above holdings of our Supreme Court, and the established practice of this Commission, we are compelled to hold that we have no power under the facts in this case to make an award in his favor, and we therefore reject the claim; but we do so without prejudice, reserving to claimant the right to present the matter to the Legislature. And the Commission are of the opinion that while the facts do not justify this Commission in making an award, yet they are sufficient to justify the Legislature in making an appropriation, in favor of claimant, of some amount to assist him as they have repeatedly done in former cases where members of the National Guard were injured while in the discharge of their duty to the State as such member of the National Guard.

The claim is therefore rejected.


source: Caselaw Access Project

license: Public Domain

text:
    Arthur D. Martin v. The State of Illinois.

      Opinion filed January 21, 1903.

      Contracts—for labor of convicts.. The Court on re-hearing reviews the evidence and adheres to the former opinion of the Commission rejecting the claim.
   The claim in this case was filed by claimant, February 25, 1898, for the sum of $34,737.19. The cause was heard at the August session, A. D. 1898, of the Commission and an opinion rendered and filed in the cause on the 30th day of December, 1898, rejecting the claim. A petition for rehearing was filed in the cause January 14, 1899, and rehearing was granted March 22, 1899.

The claim is based upon two contracts, entered into by the claimant, with the Commissioners of the State Penitentiary at Joliet, for the balance of the commissions due claimant, for the sale of chairs as provided in said contracts and for damages sustained by claimant, by reason of a breach on the part of said Commissioners of said contracts.

The balance due on commissions claimed, was for the sum of $20,737.19, and the damages claimed were for the sum of $14,000. As will be observed from the former opinion rendered in the cause, the claimant, by his attorneys, at the former hearing waived his claim for damages for $14,000 and the only matter in controversy at the former trial was the balance claimed to be due as commissions which is the only matter in controversy at the present hearing.

The first contract bears date June 20, 1893, and provides for the establishment of a chair factory at the penitentiary and that claimant for devoting his time exclusively to the management and conduct of the business, and selling the manufactured product was to be compensated by a commission of fifteen per cent on the gross sales of the business, as long as the earnings of the men (convicts) employed to do the work in the factory, amounted to less than sixty cents per man, per day.

The contract further provided that an additional commission of five per cent making the total commission twenty per cent should be allowed when the business, on its gross product, developed an earning of sixty cents per man employed, per day; it being understood and agreed that in ascertaining such earnings, the interest on the amount invested in the plant and the business, shall be computed at the rate of six per cent per annum, and all such interest together with the cost of power, cost of material, cost of civilian labor and teaming, and commission paid claimant be deducted from the gross receipts of the business.

■ The second contract bears date September 1,1894, and provides that the first contract be abrogated, and should only remain in force and effect to enable the parties to adjust and settle their accounts to the date of the second contract, according to their respective rights and for no other purpose.

It was not provided in the second contract that claimant should thereafter have the management of the business; but it provided that he should sell the product of the plant and be compensated by the same commissions allowed in the first contract, and to be paid monthly.

Claimant sold chairs, manufactured in the penitentiary, under the second contract, until March 1, 1896, and on the second day of March, 1896, by mutual consent, the contract was cancelled and annulled, by agreement in writing.

The record contains certified copies of the vouchers issued to claimant, for commissions during the existence of both contracts, which vouchers are receipted in full by claimant.

It is contended by claimant that these vouchers were not intended to be in full of the extra five per cent commission, to be allowed in case the prison labor should reach or exceed sixty cents per day, per man. The Commission in the opinion rendered in the former case held that there was not sufficient evidence at that time in the record to establish the fact that the earnings of the men, amounted to- sixty cents per day, per man employed ; and also- held that the vouchers issued to claimant, and receipted by him in full, showed an adjustment in full of the accounts between the parties.

There is no- member of the present Commission, who was a member of the Commission at the former hearing, and we find no written reasons on file, in the case for the granting of the rehearing. It appears, however, from the petition on file for a rehearing, that it was urged that the evidence of the warden of the penitentiary should be taken in the case, and a full opportunity given claimant to- examine the books of the penitentiary and ascertain the earnings of the prisoners for the period in question. Since granting the rehearing the claimant has caused the books of account at the penitentiary to- be examined by Seymour Walton, an expert accountant, and has taken his evidence in the case. Walton, testified that from an examination of the books he found, that the earnings of the prisoners, during the period of the first contract, did not amount to sixty cents per day, per man, but that during the period of the second contract, did amount to sixty cents per day, per man. He stated, however, in his direct examination that it was impossible to make an accurate statement of the cost to manufacture the chairs during the whole period of the second contract, exclusive of labor, because, there was no inventory taken at the end of that period. He further stated, however, that he was able to make an accurate statement as shown from the books of the cost of manufacturing chairs from the first day of September, 1894, to August 31, 1895, inclusive, exclusive of labor, and that the cost for said year, as appeared from the books, was $109,695.77, and that he arrived at the total cost of the manufacturing of the chairs for the eighteen months during which the second contract was in existence by adding one half the cost of the first year which would make a total cost of manufacturing chairs for said eighteen months, exclusive of labor, $164,543.65. He further stated in his direct examination that the total gross sales for the eighteen months, as shown by the books were $257,079.47. He further stated in his cross-examination that the number of days, prison labor, as shown by the books of the men employed, in and for, the chair department, September 1,1894, to August 31,1895, was 56,533; and the number of days, prison labor, beginning September 1, 1895, and ending February 29,, 1896, was 29,043. This of course, would make a total number of days prison labor in the chair department,, under the second contract of 85,576. He stated on cross-examination that in ascertaining the earnings of the convicts, per man, per day, he divided the difference between the cost of manufacture, as shown by the books, and the gross sales, by the number of working days of the convicts, as shown by the check roll. He stated also, that in ascertaining the total cost he had not included the interest on the plant or the commissions of claimant as provided by the contract. He stated that he did not find these amounts on the books and be went by the books altogether and not by the contracts. Now if we deduct the total cost to manufacture, as found by the expert, under the second contract, which was $164,543.65, from the total gross sales, $257,079.43, we have remaining $92,535.82, which if divided by the total number of men employed, as shown by the check roll, would amount to more than sixty cents per day, per man. The contracts provided, however, that interest at the rate of six per cent per annum, on the amount invested in the plant and business, and the commissions to be allowed should be included in the cost and deducted from the gross sales, in ascertaining the earnings of the convicts. The accountant stated that the interest on the plant and business would amount to $3,311.54.

The amount of commissions, at twenty per cent on $257,079.47 would be $51,415.89, which added to the interest would amount to $54,727.43. If we add this amount to the $164,543.65, the amount of cost found by the accountant, which did not include interest and commissions we will have $219,271.08, and if we deduct this amount from $257,079.47, the amount of gross sales, we will have remaining $37,808.39. If we divide this latter amount by eighty-five thousand five seventy-six, being the number of men employed as shown by the check roll, we find that the earnings of the men would be about 44 cents per man, per day.

We are of the opinion that the testimony of the expert witness fails to establish that the convicts during the period of the second contract earned the sum of sixty cents per day per man.

Claimant has also taken evidence since the former hearing to show that the charges for power and steam, were exorbitant and unreasonable, but if we make an allowance for an extra charge for power and steam we would be unable to find from the record, as it stands, that the convicts earned sixty cents per day, per man, according to the contract.

The evidence of Robert L. Allen, who was warden of the penitentiary, during the existence of both contracts, has been taken by the State, since the former hearing, and he testified that the vouchers which were receipted in full by claimant, from time to time during the existence of the contracts were intended to be settlements in full up to their date. That whenever he and the claimant were unable to agree upon the amount due claimant, it was referred to the Commissioners and a settlement was made between them.

Voucher ¡No. 218 issued October 17, 1895, shows on its face that it was a settlement in full to September 1,1895. Warden Alien swears positively that this was a settlement in full up to that time and the record of the Commissioners shows that there was a settlement made in compromise at that time, differences having arisen between the management of the chair department and the claimant, in regard to the amount of commissions to be allowed him.

The record also shows a number of sales made by claimant where the goods were returned and a number of sales made by him, at prices below the scale agreed upon and that he agreed in all those instances where the Commissioners filled the orders, that he would waive his commissions or that he would take for his commissions such sum, as remained above the cost price of the chairs.

The expert accountant, Walton, testified on cross-examination that in the course of his investigation, he found that there were certain sales for which claimant was not credited with any commissions. That he saw a letter from claimant in which it was stated that he was not to receive commissions on certain sales, unless the profits justified it. He also stated that in a number of instances goods were sold at cost and that no commissions were credited to him on those sales.

There is a letter in the record, dated October 16,1895, and addressed to the warden and signed by the claimant in which he agrees, in case certain orders then standing on the books as per list attached, were filled, he would accept in full of his commissions on said orders, the surplus on each sale over such amount, as shall realize the net prices as entered on the estimated cost list. The list attached to the letter contains an itemized list of orders aggregating $23,261.20 and also refers to other orders, the amounts of which are not given.

We think this voucher No. 23.8, taken in connection with the evidence of Warden Allen and the expert accountant and the record of the Commissioners and the letter of claimant, contained in the record, was intended as an annual settlement in full to the first day of September, 1895. The vouchers issued after that date are receipted in full by claimant and if they were not intended to be in full it seems to us an inventory of the stock on hand would have been demanded by claimant at the time when the contract was mutually annulled, in order to determine whether or not he was entitled to an extra commission. This was not done and we think the vouchers in the record show a complete settlement and adjustment of all accounts between the claimant and the Commissioners.

We therefore see no reason for reversing the judgment of the former Commission and it is therefore ordered that the claim be rejected.


text:
    Chicago League Ball Club v. The State of Illinois.

      Opinion filed January 21, 1903.

      Militia—liability of State for damages caused by State troops during riot. Where a tumult or riot assumes such proportions that it becomes necessary that the-soverign shall interfere and exert the supreme power of the State, to that extent the general State government is the actor and the burden of expense which its acts incur is not to be borne by the city in which the act occurs, but by the State itself.
   This is a claim for the use of and damage to claimant’s ball park, in the city of Chicago, by certain regiments of the State Militia called into service and occupying said park for twenty (20) days under the order of the Governor as Commander in Chief, during the great railroad strike of 1894.

Suit was originally brought by claimant in the circuit court of Cook county against the city of Chicago, seeking recovery for said use and occupancy and for damages to said ground and appurtenances thereto.

After a finding for the defendant on the first trial in the circuit court (before Judge Dunne) reversed on appeal to the Appellate court, on the second trial in the circuit court, judgment for the sum of four thousand seven hundred and sixty-one ($4,761) dollars was entered and said judgment affirmed by the Appellate court; but on appeal to the Supreme court (City of Chicago v. Ball Club, 196 Ill., 54) the judgment was reversed in an opinion holding that recovery must be sought, not from the city, “but it is for the State in its sovereign capacity to determine whether compensation will be made out of its treasury.” Further the court said: “When a tumult or riot assumes such proportions that it becomes necessary that the sovereign shall interfere and exert the Supreme power of the State, to that extent the general State government is the actor and the burden of expense which its acts incur are not to be borne by the city.”

In view of this decision of the Supreme Court and as conceded in the argument of the Attorney General, it remains for this Commission to determine only what would be reasonable compensation for the occupancy of and damage to the claimant’s property by the State Militia.

As to the rental value thereof, witnesses widely vary in their opinion and testimony—one real estate man (Mr. Hale) who was familiar with the particular property in question and with rental values in the vicinity, fixed thirty-five ($35) dollars per day as a fair rental; Mr. Buchman, another real estate man, familiar with the property and its rental value in 1894, estimates that the ball park was worth about forty ($40) dollars per day for the whole year or one hundred and twenty ($120) dollars per day estimating the ball season to be limited to four months.

Mr. Hart, -the president of the ball club, and other base ball men, testified that the grounds were worth five hundred ($500) dollars per day; but Mr. Hart admits on cross examination that the total income from the ball park for 1895, the year succeeding its occupancy by the militia, was only eight hundred and ten ($810) dollars; for the year 1894 when it-was rented to the Athletic club and the bicycle club for a contingent rental based on the gross receipts Hart testified that he “thought the base ball club received some rental during 1894; could not say how much, wouldn’t attempt to say it was as much as one thousand dollars.” Mr. Hart also testified that the ball club was very anxious to get rid of the lease in 1894 and offered to rent the grounds for five thousand five hundred dollars or six thousand dollars. Computing the rental at the latter sum (six thousand dollars) the highest possible figure at which the rental value can be estimated would be one hundred dollars per day, even on Mr. Hart’s basis of sixty days as constituting the season in which the income must be secured. But it is a matter of common knowledge that for the purposes the grounds were used in the seasons of 1894 and 1895—bicycling, athletics, base ball or foot ball—there are at least four seasonable months or one hundred and twenty (120) days adapted to out of door sports—which would give a daily rental value of fifty ($50) dollars; or one thousand ($1,000) dollars for the twenty days the grounds were occupied by the militia.

As to the items of damage as disclosed in the bill of particulars (“Exhibit A.”), these are confessedly made up by Mr. Hart from a memorandum made some time after the militia vacated the grounds; they are admitted to he estimates, based on hearsay. The following items should clearly be deducted:

Tickets, as to which the evidence was stricken
out.................................... $50.00
Plumbing, as to which the evidence was stricken out.................................. 4*0.00
Hurdles, the number being estimated or guessed at from hearsay; the statement or estimate of
28 hurdles at $2.25 being stricken out..... 56.25
Benches, number not known................ 50.00
Lumber, bought in 1892, used in 1893, witness did not know whether or not it was there
July 6, 1894 ............ 80.00
Repairing bicycle track, $750. Mr. Hart did not know how much he paid for the repairing; did not know whether it was as much as $100. Later in his testimony he says more than $100 was spent, how much he did not know; showing his estimate is pure guess work; but allowing $100, there should be deducted from the charge as made........... 650.00
Repairs on diamond. Mr. Hart admitted he did not know how much was spent on repairing the diamond; there is evidence that it never was repaired; so it would seem that the item of charge for this repair should be deducted as being either a guess or fictitious......... 500.00
As to the two last charges, apparently after thoughts, the first is based on a loss........ 611.00 of profit imaginary and not capable of computation, supported by no evidence; as is true of the last charge.................. 321.91
$2,359.16

Deducting these items from the total ($3,258.06) claimed in the bill of particulars, we think one thousand ($1,000) dollars a liberal estimate and allowance for damage to the property and adopting the sum of six thousand ($6,000) dollars as a fair yearly rental value of the grounds, this being the amount for which Mr. Hart testified he offered to rent it for the year 1894— and limiting the season to four months or one hundred and twenty (120) days during which the grounds were available for the uses to which they were intended, would make a rental value of fifty ($50) dollars per day which approximates the value fixed by the only witnesses (Hale and Buchman) whose opinions are entitled to special consideration. Adopting this as the fairest basis of determining a reasonable compensation for the use of the grounds for the twenty (20) days they were occupied by the militia, we consider one thousand ($1,000) dollars for rental and one thousand ($1,000) dollars for damages and destruction of property should amply and fairly recompense the claimant.

While this amount is lessthan that forwhich judgment was rendered in the circuit court, we feel in no way called upon to give undue consideration to that finding.

The question of damages as supported by the evidence is no more conclusively established by that judgment than was the interpretation of the law as to liability.

We therefore allow and award to said claimant the sum of two thousand ($2,000) dollars in full for all demand for rent, occupancy of grounds and damages.


text:
    Charles Balsley v. The State of Illinois.

      Opinion filed March 11, 1903.

    1. Respondeat Superior—doctrine does not apply to State. The State is not liable for the fault or neglect of its agents or employes.
    2. Statutes—usually to be given a prospective operation only. In construing a statute a prospective operation only will be given to it, unless its terms show the legislative intention that it shall have a retrospective effect.
    3. Same—presumption of intention is against words having a retroactive effect. The presumption of intention is against words having a retroactive effect, not in favor of it, and words will be presumed to be prospective only, unless there is an evident and unmistakable intention expressed in the words that the act shall be retrospective.
   This is a claim for injuries received by the claimant while serving as a member of Battery A, I. N. G., in annual encampment at Camp Lincoln in the summer of 1900.

Being assigned to the duty of firing the sunset gun during the week of the encampment, the claimant on the afternoon or early evening of July 29, called upon private Jesse Rupert, who was acting quartermaster, but not commissioned, and private Albert G. Stephens to assist him in discharging the cannon and lowering the flag, in pursuance of such order.

From evidence offered, it appears that the cartridge (about one pound of powder in a flannel sack) was too large for the muzzle of the cannon; that in the attempt to ram this in, the sack was broken and part of the powder ran on the ground. From some cause, not clearly shown, the powder was ignited, and an explosion occurred by which the claimant, Rupert and Stephens, were all seriously injured.

Evidence was introduced tending to show that the cannon was old and worn; also that the breaking of the cartridge or powder sack was due to its being too large; but all of this we consider immaterial, as there is no claim that either of these circumstances, if true, caused the explosion. The proximate cause of the explosion, so far as any cause is shown by the evidence, and the only theory upon which it can be reasonably accounted for, is that some by-stander threw a lighted cigar, cigarette or match on the powder that was trickling from the broken sack to the ground. One or more of the witnesses testifies that this was the case and that a cavalryman among the by-standers was guilty of this criminal carelessness. Unaccountable and deplorable as this may seem, for the purpose of reaching a conclusion in this case, it is immaterial. Whatever may have caused this sad accident, in view of the law applicable, as interpreted and applied by this Commission, there is no liability on the part of the State.

Surely it cannot be contended that this act of criminal recklessness was committed by authority of the State, the only way in which the State could become liable, since it is a well established principle of law, repeatedly announced by the Supreme Court, that the State is not liable for the fault or neglect of its agents or employes; that the doctrine of respondeat superior does not apply as against the State:

Hedges v. County of Madison, 1 Gilman, 567;
Town of Waltham v. Kemper, 55 Ill., 346;
White v. County of Bond, 58 Ill., 297;
Symonds v. Clay County, 71 Ill., 355;
Hollenbeck v. Winnebago Co., 95 Ill., 148;
Cooney v. Hartland, 95 Ill., 516;
Elmore v. Drainage Commrs., 135 Ill., 269.

Holding the above view, the Commission can find no liability on the part of the State unless warrant can be found under the provisions of section 4 of article 9 of the Military Code, approved May 11, in force July 1, 1901.

Notwithstanding this enactment was passed and went into effect after the accident on which this claim is founded, counsel for claimant contends that this act is retroactive, and so brings this claim within its provisions.

Argument is made and authorities cited to support the contention that nothing in the Constitution of the United States or of the State of Illinois prohibits the General Assembly from passing a retroactive law. This is not disputed by the Attorney General, nor does this Commission doubt the right and power to pass a retroactive law; but the question is not what it cam, do but what it has done in this instance.

To the wording of its enactments must we look for the intention of the General Assembly; and the act relied on in this case is worded as follows: “In every case where an officer, soldier or seaman of the Illinois National Guard, or the Naval Militia of Illinois, shall be killed or wounded, while performing his duties as 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.”

There is no confusion or uncertainty as to the intention expressed in those words; “in every case where an officer, soldier, etc., shall be killed or wounded” * * he or his legal heirs shall have a claim against the State.

It would be doing violence to the plain meaning of words for this Commission to interpret the phrase “shall be” as synonymous with “has been or shall be.”

They are not fairly susceptible of such meaning and the Commission feels bound to give the words the simple, natural, inevitable meaning that they convey, and in doing so, we only comply with the rule of law that “in construing a statute a prospective operation only will be given to it, unless its terms show the legislative intention that it shall have a retrospective effect.”

Stone v. Tyler, 173 Ill., 147, citing,

Knight v. Begole, 56 Ill., 122;

People v. McClellam, 137 Ill., 352.

The presumption of intention is against words having a retroactive effect, not in favor of it, and words will be presumed to be prospective only, unless there is an evident and unmistakable intention, expressed in the words, that the act shall be retrospective.

A statute will not be so construed unless the language of the act is so clear and positive as to leave no room for doubt that it was the intention of the Legislature to make it retroactive.

Voigt v. Kersten, 164 Ill., 314, citing,

Benton v. Brotherhood of R. R. Brakemen, 146 Ill., 570.

We fully agree with claimant’s counsel that the Legislature could have made this law retroactive; but such an intention is not apparent in the language of the act, nor do we feel warranted in giving the words an interpretation that would make them retroactive.

For the foregoing reasons, under the limitations of our authority and obligation to endeavor to interpret the law as it stands, not to amend or make laws, we are obliged to and do reject this claim, without prejudice however, to the right of the claimant to seek other relief.

We realize that the injuries received by the claimant and his associates were serious and that each of them endured great pain, and received permanent injuries. The evidence shows that the claimant in this case was confined at St. John’s Hospital in Springfield, for seven or eight weeks after the accident, and was under treatment for a long time after returning to his home; the nature and extent of his injuries being described by his attending physician at Danville, Dr. Perrigo, at pp. 32, 33 and 34, of depositions on file in this case.

While it is difficult to fix any monetary compensation for physical suffering and permanent disability, it may be safe to assume that the claimant himself did not estimate his claim “for financial help or assistance” at more than $2,500, the amount sought in the bill introduced in the House of Representatives at the session of 1901; this amount doubtless being fixed with the approval of the claimant, though the claim filed in this case is for $5,000, the amount sought by the bill introduced in the Senate of the same session. We refer to this only as giving presumably the claimant’s original idea as to the amount satisfactory to him; and call attention to the discrepancy between the amounts sought respectively in the House bill on the one hand ($2,500;, and of the Senate bill and claim filed in this case, on the other ($5,000.)

It is not an agreeable duty for this Commission to refuse awards in such cases. But under the law as we feel bound to interpret it, we reject this claim, without prejudice, however, to other relief.


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    Albert G. Stephens v. The State of Illinois.

      Opinion filed March 13, 1903.

      Militia—Personal injuries received while in the service. Balsley t. The State of Illinois followed: The circumstances and material facts in this case are the same as in Balsley v. the State of Illinois and for the reasons therein assigned this claim is also rejected.
   The claimant herein seeks recovery for injuries received while serving as a member of Battery A, I. N. G., at Camp Lincoln, July 29, 1900. This being the same explosion in which Charles Balsley and Jesse Rupert were also seriously injured, the circumstances and material facts were fully set forth in the opinion filed by this Commission in the claim of the said Charles Balsley.

For the reasons therein assigned this claim is also rejected, without prejudice, however, to other relief; and attention is called to the circumstance that this claimant, as did Balsley and Rupert in their claims before this Commission, has doubled the amount sought in the original House bill introduced for his relief— which provided for an appropriation of $500 in place of the $1,000 herein sought.

It may be reasonably assumed therefore that even in the estimation of the claimant, $500 should be the limit in attempting to fix a fair compensation for the injuries received by the claimant.


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    Jesse Rupert v. The State of Illinois.

      Opinion filed March 13, 1903.

      Militia—injuries received by reason of the explosion of powder. Balsley v. State of Illinois followed.

   This claim is founded on injuries received from the explosion of powder in attempting to fire a cannon at Camp Lincoln, July 29,1900, as a result of which claimant in this case, and Charles Balsley and Albert G. Stephens, two of his associates in Battery A, I. N. G., were seriously and permanently injured.

The material facts and circumstances of the accident are set forth in the opinion heretofore filed in the claim of Charles Balsley; repetition is therefore not necessary here.

For the reasons therein assigned—fully applicable in this case—this claim is also rejected, without prejudice however, to other relief.

Attention is called to the fact, as was also done in the case of Charles Balsley, that the original bill introduced in the House of Representatives, seeking relief for this claimant, was for an appropriation of $2,500 in place of $5,000 as sought herein.

This amount ($2,500.00), doubtless approved by the claimant, would naturally suggest this sum as the limit of the measure of claimant’s damages.


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    H. W. Rokker v. The State of Illinois.

      Opinion filed March 20, 1903.

    1. Commissioners of Contracts—power possessed by them, is purely statutory. The power exercised by the Commissioners of Contracts is purely statutory; and the law requires that every prerequisite to the exercise of such a power, as stated in the statute, must actually precede its exercise.
    2. SAME-power derived from, R. S. Ch. 127. The only power of the Commissioners of Contracts to bind the State in making contracts is derived from the law approved March 31, 1874, in force July 1, 1874, (Revised Statutes Ch. 127) naming certain State officials “Commissioners of Contracts” and defining their powers, said law being enacted in pursuance of Section 25, Art. 4, of the Constitution, which provides that “The General Assembly shall provide, by law, that the printing, binding the laws and journals, and all other printing ordered by the General Assembly, shall be let by contract, to the lowest responsible bidder.”
    3. Same—have power to cancel contracts obtained by fraud, conspiracy or other unlawful means. The law of 1874 (R. S. Ch. 127) provides penalties for paying any person to refrain from bidding for such contracts and gives the Commissioners authority to cancel contracts, when in their opinion said contracts were obtained ,by fraud, conspiracy, or unlawful means.
    4. Same—contracts may be made only after a public letting. An indispensable condition precedent to the powers of the Commissioners of Contracts to contract is, that there shall be a public letting in which there is entire freedom of competition.
    5. Contracts—to prevent competition in bidding. No rights accrue under. No one can derive rights under a contract made for the purpose of preventing competition in bidding.
    6. Same—power of Secretary of State to bind the State by contract. The Secretary of State cannot bind the State by contracts where there is no express authority given him by statute to do so.
    7. Same—State not liable on quantum meruit where Secretary of State lets printing contract without public bidding. The State is not liable on a quantum meruit for State printing done where the work was done at the instance of the Secretary of State without being let to the lowest bidder. The Constit ' provides that such contracts should be let to the lowest bidder v •vkes all contracts made without express authority of law null and . and prohibits the General Assembly from providing for payment of any claim arising out .of any such contract.
    8. Statute of Limitations—unliquidated claims. Unliquidated claims against the State shall be proved up and filed within two years from the time such claims may have arisen; and any claim not presented and proved up as above, and filed, shall be forever oarred from payment by the State.
   This claim is a survival of similar claims, founded on the same circumstances, prosecuted at intervals during the past fifteen years by H. W. Rokker before various tribunals, seeking recovery in varying amounts, but with uniform results.

If only a temporary relief from the prosecution of this claim is to be expected, a recital of its history would be as unnecessary as it is burdensome ; yet with some hope that the claim may now be finally disposed of, a statement of its origin, its repeated rejection and persistent revival, may be useful to posterity by tending to discourage its further prosecution, at least before the Commission of Claims.

From the record now before the Commission, it appears that on the 13th day of September, 1886, the firm of H. W. Rokker & Co., secured a contract for State printing, said contract being executed, on the part of the State, by the Attorney General, Secretary of State, the State Treasurer and Auditor of Public Accounts, who are, ex-officio, Commissioners of State Contracts.

Under this contract, between October, 1886, and May 7, 1887, Rokker & Co. did work for the State, entitling them to $32,722, on which total payments of $24,000 were made by the State, leaving a balance, according to the claims of Rokker & Co. of $8,722.

On the 7th day of May, 1887, Rokker & Co. were notified that no further payments would be made under the contract; whereupon Rokker and his associates filed in the circuit court of Sangamon county, a petition praying a writ of mandatrmts, directed to the State officers (naming them) who are ex-officio Commissioners of State Contracts, commanding them as such Commissioners, to forthwith certify petitioner’s said accounts, and commanding said Auditor to draw Ms warrant for the said balance claimed ($8,722), and commanding the State Treasurer to pay the same to the petitioners.

The defendants, by the Attorney General, in their answer to said petition, among other things set forth, that Henry W. Rokker and others named, including every individual and firm engaged in the printing business in the city of Springfield, had on or about September 6, 1886, (prior to the execution of said printing contract for the State) formed a combination for the purpose of making bids for the several classes of printing to be done for the State of Illinois for the two years, beginning October 1, 1886, in accordance with the terms of the advertisements for bids; which said combination was formed in the form of a partnership, and for the purpose of obtaining the contracts for said printing at a high rate, and for the further purpose of preventing the several members of said combination from competing: 'with each other for the contracts for said printing; that in accordance with the terms of said combination, Rokker and his associates paid the six individuals and firms (named in said petition) engaged in the printing business in Springfield, the sum of $1,000 each in consideration of their becoming members of said combination and. refraining from competing for said printing contracts,, though several members of the combination did file bids at higher figures than the bid of Rokker. The collusion being unknown to the Commissioners of Contracts, they were deceived into believing that the bids were made in actual competition, while in fact all the bidders were interested in and parties to the bid of Rokker & Co.

The defendants in said mamdamus proceedings (the State officials ex-officio Commissioners of Contracts) in their answer further averred that said combination was formed in violation of the laws of the State of Illinois; that the contracts relied upon for the recovery of the claim, were procured by unlawful means and by fraud upon the part of the petitioners (Rokker, et al) and through violation of the law; that the said contracts were null and void, and of no binding force or effect upon the State or the Commissioners of State Contracts; and that no further payment ought to be made on account of said contracts. To which answer the petitioners (Rokker and his associates) demurred. The circuit court sustaining the demurrer—which finding was reversed on writ of error to the Supreme Court—the finding of the latter court (reported in the case of Dement, et al v. Rokker, et al, 126 Ill., 174) so far as now material or bearing on the claim now under consideration, being in substance as follows:

That the power exercised by the Commissioners of Contracts is purely statutory; and the law requires that every prerequisite to the exercise of such a power, as stated in the statute, must actually precede its exercise. “And it is manifest from the language employed, that it is intended by our constitution that this rule shall be rigidly applied to contracts assuming to bind the State, for it provides (Sec. 19, Article 4) that the General Assembly shall never * - * * 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.”

The only power of the Commissioners of Contracts to bind the State in making contracts is derived from the law approved March 31, 1874, in force July 1, 1874, (Revised Statutes Ch. 127) naming certain State officials “Commissioners of Contracts” and defining their powers—said law being enacted in pursuance of Section 25, Article 4, of the constitution which provides that “The General Assembly shall provide, by law, that the printing, binding the laws and journals, and all other printing ordered by the General Assembly, shall be let by contract, to the lowest responsible bidder.”

Among other provisions, the law of 1874, above referred to, prescribes that “the furnishing of all fuel, stationery and printing paper for the use of the State, and the copying, printing, binding and distributing the laws and journals, reports and all other printing, and distributing ordered by the General Assembly, shall be let by contract, to the lowest responsible bidder, in the manner hereinafter provided.”

Said act also provides penalties for paying any person to refrain from bidding for such contracts, and gives the Commissioners authority to cancel contracts, when in their opinion said contracts were obtained by fraud, conspiracy, or unlawful means.

Continuing, the court say that only under the above constitutional and statutory authority, can the Commissioners make contracts binding on the State. “An indispensable condition precedent to their power to contract is, that there shall be a public letting in which there is entire freedom of competition.” Penalties are imposed by the law for preventing bids, hence inferentially prohibiting the interference with free bidding; “Hence if that which is thus prohibited, was done, the letting was necessarily void, and a party cannot be entitled to enforce an agreement which he induced the adverse party to enter into only by doing that which subjected him to punishment by confinement in the penitentiary * i:' * .

All of the authorities are in substantial accord that no one can derive rights under a contract made for the purpose of preventing competition in bidding. Citing numerous authorities, page 198, volume 126, Ill. Rep.

Through this decision of the Supreme Court, (filed November 14, 1888) the first effort of claimant to secure the balance claimed under his contract being rendered unsuccessful, his next attempt at recovery was made by the introduction of bills at successive sessions of the General Assembly, as appears from the testimony of Mr. Rokker (in the claim prosecuted in 1896, before this Commission) who testified that he “brought his claim before the Assembly every session, and they failed to pass on it; waited to the end of the session, and it dropped out.” Finally on May 4, 1895, claim was filed with the Commission of Claims for balance due for printing done by claimant H. W. Rokker for the State, between October 1,1886, and July 1,1887, amounting to $13,609.58, together with interest thereon, at six per cent per annum, from July 1, 1887, this amount apparently included the balance ($8,722.11) claimed in the mandamus proceedings heretofore referred to, and also the balance ($4,497.47) claimed for work done by H. W. Rokker, after the abrogation of the contract with Commissioners of Contracts, by written notice of the Secretary of State.

In the opinion filed by the Commission, we notice the following: “It is conceded on the part of the claimant’s attorneys, that the said contracts (with the Commissioners of Contracts) could not be defended, which relieves us of the necessity of considering their validity, * * * * ” and further on, “claimant seeks to recover in this case upon the theory that the Secretary of State made a contract with him for the work, and agreed to pay him at the rate specified in the original contract. By what authority (the opinion continues) does the Secretary of State assume to make contracts of this kind? There is no such authority to be found in Chapter 127, nor in any other place in the statute, that we have been able to discover, and in the absence of such authority, any contract by the Secretary of State would be null and void, by the provisions of the constitution.”

And continuing, “claimant further insists that, in the absence of authority in the Secretary of State to bind the State by express contract, the State would be liable on a qucmtum meruit. The law might imply a contract on the part of the State to pay what the work was reasonably worth, in some cases, but in view of the provisions of the constitution providing that such contracts should be let to the lowest bidder, and making all contracts made without express authority of law null and void, and prohibiting the General Assembly from providing for payment of any claim arising out of any such contract we do not think that position tenable. If a contract should be implied from the acts or doings of any of the officers of the State, the objects intended to be accomplished by the framers of the constitution would be defeated.”

The Commission further held that even if such a contract could be implied, the claim was barred by the statute of limitations. Being rejected by this Commission, the claim next appears in the form of a bill introduced in the Senate at the last lession of the General Assembly seeking an appropriation for $8,992.94, this being the balance claimed ($4,887, and interest) for work done, after the abrogation of the contract with the Commissioners of Contracts, on the understanding or agreement with the Secretary of State.

This bill having been referred to the committee on appropriations, was reported back to the Senate with a recommendation that it be referred to the Commission of Claims—which recommendation was carried out by the Senate, said bill being filed with the clerk of this Commission April 26, 1901; following which, on May 2, 1902, the claimant herein did file with the clerk of this Commission his claim for $13,609.58, and later, on leave granted, did on December 15,1902, file his amended petition reducing the amount claimed, to the sum of $8,-992.94 “so- as to conform to the Senate bill above referred to.” On behalf of the State, pleas were filed by the Attorney General, denying plaintiff’s right of recovery because of former adjudication by this Commission, in opinion filed at the August term, 1896, and for further pleas in that the causes of action did not accrue within two years next preceding the commencement of this proceeding, and that the claimant is barred from recovery, because he failed to file his claim with the Auditor within two years from the time it is alleged to have accrued.

We would feel constrained to reject this claim both on the ground that it was not filed within the time required by that statute, and because of the former finding of this Commission (August term, 1896) it being pro-Tided in the act creating the Commission (Sec. 7) that “In case said Commission shall reject any claim, so filed as aforesaid, upon the hearing thereof, such rejection shall conclude all parties thereto, unless said Commission shall, in their award thereon, otherwise direct.”

Nor can we seriously consider the contention of claimant’s counsel that the introduction of a bill in the General Assembly, and reference of the same to this Commission (as in this instance) takes it out of the requirement that “unliquidated claims against the State shall be proved up and filed within two years from the time such claims may have arisen; and any claim not presented and proved up as above, and filed, shall be forever barred from payment by the State.” Laws 1847, p. 32.

To hold otherwise would involve the contention that the reference of a bill to this Commission had the effect of repealing a law now on the statute book.

However, even if the two year limitation were not in this case applicable, and had there been no former adjudication of this claim, we should still feel bound, under the law heretofore cited, to reject this claim.

If as claimed, work was done under a contract with or by direction of the Secretary of State, such action was wholly without authority of law, and had no binding effect on any one except possibly the Secretary himself; he certainly could not, in the face of the constitution and the statutory provisions hereinbefore quoted, bind the State; nor could the legislature properly make an appropriation for such an unauthorized payment in view of the constitutional provision (Sec. 19, Art. 4) that “the General Assembly shall never * * * authorise the payment of any cla/kn, or part thereof, hereafter created against the State under any agreement or contract made without express authority of law> and all such unauthorised agreements or contracts shall be null and void.”

This language is sufficiently plain and emphatic to determine this Commission that even in the absence of other .considerations and defenses, this claim has no foundation in law, and it is therefore rejected.


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    William Z. Partello v. The State of Illinois.

      Opinion filed March 20, 1903.

      Contracts—no recovery after all rights have been relinquished. When, a party being unable to carry out the terms of his contract, gives the other party a written relinquishment of all rights he may have thereunder, he cannot afterwards recover for money paid out by him under such contract.
   William Z. Partello claims from the State the sum of $28,000.00.

The claim is in the nature of an action of assumpsit growing out of a written contract made on August 31, 1892, by him with the Board of Managers of the Illinois State Reformatory at Pontiac, Illinois, to furnish all labor and material required to erect and fully complete three buildings, viz: a cell house with attached school and lavatory building, a solitary and medical examination building combined, and a trade school building.

The plans and specifications upon which the contract was let were referred to in and made a part of the contract, and the material was to be furnished and the work done strictly according to the same.

Article II of the contract provided that the material used be of the best quality and the work executed in the most workmanlike manner, both material and work to be to the entire satisfaction of said Board.

Article III provided that the entire work should be fully completed on or before the 1st day of August, A. D. 1893. That if through the fault of the Board of Managers the work was delayed, it also provides that the contractor be allowed one additional day to the time above stated for each and every day said work was delayed by the fault of the Board of Managers, strikes or other causes over which the contractor had no control.

Also that if the contractor without being so prevented failed to comply with the terms of said contract which relate to the time within which the work was to be completed, then and in that event, he was to forfeit the sum of $25.00 per day for each and every day thereafter until the work was completed; and that such sum be deducted from any money due him and if that amount was not due, then he was to pay the deficiency.

Article IV provided that should the contractor fail to prosecute the work with such diligence as in the judgment of the Board would insure the completion of the work within the time specified in the contract, or fail to comply with any of the terms thereof, and thereby in the judgment Of the Board hazard the satisfactory completion of the work, as stipulated, and after giving the contractor ten days notice in writing, and upon his failure to prosecute the work within said ten days, then the Board was authorized and empowered to take possession of the machinery, tools and material of the contractor and supply whatever was necessary and complete the work and deduct the cost thereof from any money due the contractor and if sufficient sum was not due him, then in that event he was to pay the deficiency.

Article V provided that all work exhibited in or provided to be done by the plans and drawings and not mentioned in the specifications or vice versa, be performed as if same were fully mentioned in such, without extra charge.

Article VI relates to alterations by addition or omissions on the work and amount and manner of payment for same.

Article. VII provided for the use of labor of inmates of the reformatory on the work and the payment therefor.

Article VIII provided that the Board shall appoint an architect and superintendent to have charge of the work but that the final acceptance thereof shall rest with the Board, and that the acts of such architect shall be merely advisory.

Article IX provided that the contract price of said buildings complete be $105,384.00. Payments to be made as follows: Ninety per cent of the value of the work executed to the satisfaction of the Board, to be paid in monthly installments as the work progressed, the said value to be ascertained by the architect according to the terms of the specifications, which specifications provide that “such monthly payments shall be based upon the estimated value of the quantity of such work and computed from the contract unit of value.”

Ten per cent to be retained until the completion of the entire work and the approval and acceptance thereof by the Board, and in case of non-fulfillment of the contract by the contractor, this amount was to be forfeited, such forfeiture not to relieve him from liability to the Board for any damages sustained by reason of any breach of the contract.

Article X provided that the contractor shall save and , keep harmless the Board of Managers from all claims, loss or damage arising from the negligence of the contractor, and to properly protect the work until completed and accepted.

Article XI provided that the contractor shall with two good and sufficient sureties execute a bond to the Board for $52,500.00 for the faithful performance of the contract and that the contract should not be assigned with* out the written consent of the Board.

The claimant alleges in his statement of claim herein filed:

First: That after the execution of said contract he proceeded under the terms thereof with said work with all due diligence and furnished material necessary to the progress of said work.
Second: That instead of being paid in monthly installments, ninety per cent of the value of the work, labor and material performed and furnished under said contract, he was paid only about forty per cent thereof, and that by reason of not receiving ninety per cent, he was delayed and hindered in the progress of said work.
Third: That on or about the 27th day of April, 1893, without right or authority, under the terms of said contract, the said Board of Managers undertook to cancel the contract and prevent him from proceeding with said work.
Fourth: That at the time said action was taken by said Managers there was due him for extra work allowed by the architect and superintendent of said work the sum of $1,838.00 and a further sum of $15,419.76 for work and material put into the said building.
Fifth: That at the time the said contract was can-celled, there was material left upon the grounds of the said Reformatory at Pontiac, belonging to the claimant, which was afterward appropriated and used in the said building by the said Managers, amounting to the sum of $12,580.00 and for which the claimant has never been paid.
Sixth: That in June, 1893, one George McIntosh, made an offer to said Board of Managers to complete the work covered by the contract of claimant for $89,000.00 and in addition thereto, to pay the claimant the sum due him for work and material then done and furnished under said contract; also to take, use and pay for the material belonging to claimant, and then on the ground at said reformatory, and that at the request of said McIntosh and the said Board of Managers, the claimant consented thereto; and that thereafter on the 8th day of July, A. D. 1893, the contract was let to said McIntosh, who thereupon duly entered into a contract with said Board of Managers to complete the work called for by the contract, made by the claimant. That afterwards without the knowledge or consent of claimant, said Board released said McIntosh from said contract.

In answer to the allegation set out in claimant’s claim, the State has filed pleas denying any indebtedness whatever to the plaintiff; also averring that the claimant Voluntarily relinquished to the State in May, 1893, all claims which he might have against the State, under and by virtue of said contract; also setting out that claimant failed to prosecute and the Board of Managers in pursuance of the terms of the contract, terminated his employment and all rights thereunder, and also that claimant’s claim was barred by the statute of limitations.

Partello began work on the buildings in August, 1892. It appears from the evidence that a small force of men was employed and the work progressed correspondingly slow. It soon became apparent to the Board that unless better progress was made, the work would not be completed within the time specified in the contract, and that the appropriation to construct those buildings would lapse before their completion, and the same be thereby delayed until further appropriation by the State. That Partello from the beginning was repeatedly urged by members of the Board to exercise such diligence in the prosecution of the work as the contract required.

About April 1, 1893, Partello became financially involved and soon thereafter, the unused material which he then had upon the grounds of the reformatory was seized by his creditors under writs of attachment, executions and replevins and thereupon the prosecution of the work was practically abandoned by him.

Having failed to prosecute the work, as required by contract and for the above reasons having abandoned the same, Partello was notified in writing by the Board on April 6, 1893, that unless within ten days he prosecuted the work in such manner as to comply with the terms of such contract, the same would be cancelled and terminated.

On May 2, 1892, Partello appeared in person at a meeting of the Board which was then being held at Pontiac, and stated that he could not carry out the contract and requested to be relieved of same. He thereupon gave the Board his relinquishment which is written on the back of the bond attached to the contract and is as follows:

“Pontiac, Ill., May 2, 1893.
In consideration of the premises I hereby relinquish all rights I may have under this contract and agree that said contract may be transferred to such person or persons as the Board of Managers shall appoint or select.
(Signed.) William Z. Partello.”

The Board on June 1,1893, accepted same by a resolution as follows:

“Be it therefore resolved, and ordered by the Board of Managers of the Illinois State Reformatory that the contract of this Board with said William Z. Partello be, and the same is hereby declared to be cancelled and terminated.
This Board reserving the right to prosecute suit for all damages sustained by the State by the failure of said Partello to fulfill his contract.”

In relation to this release and the forfeiture of the contract, the records of the Board show that in December, 1893, the credit to Partello of the sum of $1,449.35 on the books of the reformatory was then disposed of as follows:

“On motion of Manager Ela, the following order was entered in relation to Wm. Z. Partello:
“It appearing on the books of the reformatory that there is a balance standing to the credit of Wm. Z. Partello of $1,449.35, and it also appearing that there is actually due the State from said Partello a large sum of money; much more than the above apparent balance, on account of his failure to fulfill his contract with this Board for the construction of the buildings, the clerk is hereby directed to enter a memoranda of that fact as against said apparent credit balance standing on said books.”

Having for the reasons above stated, forfeited his contract and having thus elected to surrender same with full knowledge of all the facts, no reason is perceived why the conditions in such release contained are not obligatory upon Mm both in law and in equity. The language of the release is:

“I hereby release all rights I may have in this contract.”

It was in writing deliberately executed by the claimant and so accepted by the Board. And was by all parties concerned intended to be a forfeiture of and a complete bar to any claim which Partello might have under and by virtue of such contract.

This relinquishment considered in connection with the resolution of the Board,, in accepting same and declaring the contract terminated, and reserving the right to prosecute suit against the claimant for ail damages sustained by the State by reason of his failure to fulfill his contract, the manner in which the Board disposed of the balance appearing to his credit on the books of the Board together with the testimony of a number of credible witnesses, all prove that there was a good and sufficient consideration for this release and that the same is a bar to any claim for work or material then constructed into said buildings.

It is shown by the evidence that at a meeting of the Board held on June 1, 1893, Partello was notified to return the plans and specifications for the buildings.

The records of the Board show that on June 22, 1893, an order was passed to advertise for bids for the construction of the reformatory buildings, and that on July 6th, among others, a bid was received from one George McIntosh to complete two of the three buildings covered by the Partello contract, namely, the cell house and attached school building and a solitary and medical examination building, for $89,000.00.

Afterward on July 8,1893, the Board awarded to said McIntosh a contract to construct one of the two buildings covered by his bid, namely, the cell-house and attached school building, for the sum of $78,300.00.

Records of the Board also show that said McIntosh afterwards refused to give bond and execute the contract for such work.

It is contended that Partello executed the release in consideration of the contract being made by the Board of Managers with said McIntosh to complete the buildings and that McIntosh was released from his contract by the Board without the consent of Partello and that it was part of the contract with McIntosh, that he, (McIntosh) was to pay Partello, the amount claimed to be due him and that therefore the State is now liable to pay him such claimed balance.

McIntosh in his testimony before this Commission, denies that such arrangement was ever made with or by him and all of the evidence shows clearly that this contention has no foundation in fact but on the contrary, appears to be an after-creation.

Aside from the testimony of claimant, the record in this case is absolutely wanting in any proof that the Board of Managers was at any time a party to any contract by which Partello was to be paid out of any sum that the Board of Managers might pay to any other contractor for the completion of the buildings; besides the release was dated May 2, 1893, and it is matter which appears on the records of the Board, and is not disputed except by testimony of claimant, that the only bid from said McIntosh for the construction of these buildings was received by the Board on July 6, 1893, more than two months after the release was made and the contract surrendered.

Not only is this contention of claimant wholly unreasonable but it was impossible for it to be as testified to by him. The bid of McIntosh did not cover all of the buildings included in Partello’s contract and again, it appears that Partello took his contract at a very low figure, his bid being about $35,000.00 below any other proposal made for the work.

Is it within reason and common experience that Mr. McIntosh or any other intelligent contractor, would pay a bonus for being allowed to assume such an obligation regardless of the great advance in labor and material, as shown by the evidence in this case?

It also appears that the bid of McIntosh was made in competition with other bids and was much the lower bid. These bids were in writing, and it is shown by the testimony of the bidders and of the members of the Board who have testified herein, that the bid included no terms or conditions except those contained in the bids themselves, and it appears from an inspection of said bids that no reference is made therein to Partello or his contract.

It is claimed by Partello that his monthly estimates of the architect were too low, and that instead of being ninety per cent of the value of the work, they were not to exceed 41 per cent thereof.

The evidence is that the architect, according to the contract made the monthly estimates upon the work done and that the same (less the ten per cent which was to be retained till the work was completed) was paid in monthly installments as in the contract provided, and that no objections as to the correctness of these estimates were made by him at any time to the Board.

These estimates were made by the architect during the progress of the work under the terms of the contract and were so received and acted upon by the Board. If the estimates were not correct it was the duty of Partello at that time to make known his objection to the Board and have the matter then adjusted. Not having done so, he is not in a position to complain after he had voluntarily surrendered his contract and released the State from all his rights under the same. This rule certainly applies in like controversies between two individuals and no reason is perceived why it should not apply here.

It will be observed that Partello contends that he should have received monthly, 90 per cent of the value of the work done. This is not what the contract provided. The language of the specifications is that such estimates shall be “based upon the estimated value of the quantity of such work and computed from the contract unit of value.” The “contract unit of value” was $105,-884.00.

The proof is that owing to the rapid advance in the price of labor and material and the limited time in which the appropriation would lapse after Partello surrendered his contract, the Board was unable to re» let the work within the appropriation then at its command, and that it therefore decided to purchase material and employ labor necessary to complete certain two of the three buildings covered by the Partello contract. And in the work, the Board used the labor of the inmates of the reformatory as far as practicable and added nothing to the plans to increase the cost of the buildings, and yet under economical management, the actual cost of these two buildings to the State, was between $30,000 and $35,000 in excess of the price specified in the contract with Partello. So that if the $15,-419.76 herein claimed for labor and material was put in buildings, be added, there would be an excess of $46,-000 to $51,000 not including the value of the labor done by the inmates of the reformatory, which is not included in the above excess of $30,000 to $35,000. Giving Partello credit for the sum of $15,419.76, there still remains an excess of more than $35,000 due from him to the State by reason of failure to carry out the terms of his contract.

The undisputed proof is that after the buildings were completed the Board of Managers sought to recover these damages from Partello and his bondsmen, and that upon investigation it was found that both Partello and his said sureties were wholly insolvent and that for this reason the effort to collect damages on the bond was abandoned.

$12,580.24 is claimed for material which claimant alleges he left upon the grounds of the reformatory, taken possession of and afterwards used by the Board in completing the buildings.

The evidence shows that about the time of the signing of the release, Partello had a considerable quantity of unused material, such as brick, stone, cement, iron, lime, etc., on the reformatory grounds. The claimant testifies that this was taken possession of and used by the Board, without payment therefor. That Partello has a claim against the State for material so used is wholly without foundation in fact.

The proof taken from the records and the testimony of reliable witnesses, on this question conclusively show that all the material belonging to Partello upon the reformatory grounds at the time he surrendered his contract, was seized by his creditors under writs of attachment and writs of execution, or taken possession of under writs of replevin procured by firms which had sold him such material. T. W. Coe, then sheriff of Livingston county, testified before this Commission that during the months of April and May, A. D. 1893, he, in his capacity as sheriff levied upon and sold all of this material under various writs of attachment and executions obtained against Partello by his creditors (excepting however such parts thereof as was replevined by persons claiming to be the owners thereof.)

The officer’s return on one of these writs of attachment is as follows:

State of Illinois
Livingston County.
By virtue of the within writ of attachment I have levied upon the following described property, to-wit: One pile of pressed bricks supposed to be about 40,000, north of the north end of the new building now being erected on the grounds of the Illinois State Reformatory. Also a lot of cut stone sills and caps on said grounds, also a lot of iron columns near pile of pressed brick described as above, also a lot of pressed brick in south shed near building, also a lot of cement in north shed near east family building and west of the new building being erected on grounds aforesaid. This cement levied upon subject to levy by W: H. Bentley, constable.
This 20th day of April, A. D. 1893.
(Signed.) T. W. Coe, Sheriff.
I have also levied upon a part of car-load of cut-stone windows, caps and sills on car on side track of Chicago & Alton It. R. and near said reformatory grounds, -and on C. & A. car No. 1877. I have also summoned the National Bank of Pontiac as garnishee, by delivering a true copy thereof to J. E. Morrow, president of said bank, at the direction of plaintiff.
This 21st day of April, A. D. 1893.
State of Illinois,
Livingston County,
ss.
I have duly served the within by summoning the within named defendant, William Z. Partello, as I am therein commanded.
This 25th day of April, A. D. 1893.
T. W. Coe, Sheriff.

The court records of Livingston county produced in evidence herein further show that the material seized under and by virtue of these various writs was afterwards sold under same and the proceeds derived therefrom were prorated among the creditors, the amount received not being sufficient to satisfy the claims in full. The proof further shows that none of this material was used in the building, except such as was purchased from the legal owners thereof, and paid for by the Board, after the same had been taken from Partello.

The evidence also shows that some of the material for which claimant is now demanding pay was never used in the buildings, but was replevined and taken away by the owners.

The first intimation of any claim by Partello was in August, 1893, when the Board received a letter which is as follows:

“Chicago, Ill., Aug. 5, 1893.
To the Board of Commissioners of the Reformatory at Pontiac.
Gentlemen: There is about nine thousand dollars ($9,000.00) due me on account of money paid out by me in excess of what I have received in the work on the reformatory at Pontiac, during the time I held the contract for the building work.
Legal counsel has advised me to make my demand for this money due me, and I hereby demand prompt settlement of my claim.
Very respectfully,
(Signed.) W. Z. Partello.”

Later in the same year his attorney, Mr. Crafts, presented claim for him to the Board for $15,223.00 and in 1897 he had introduced for him in the House of Representatives, a bill for an act to appropriate to him $18,-632.21.

Afterwards in 1898 he filed with this Commission a claim presumably sworn to by claimant, as required by the statutes for $15,419.76, and in 1901, he procured another bill to be introduced in the House for $28,000.00.

From these unexplainable differences in the amounts claimed at different times, it is plain that there has always been in the mind of claimant a vague uncertainty as to his claim against the State.

Much evidence has been produced before this Commission in this case and without entering into what would be a tedious review of all the testimony bearing upon claimant’s right to recover against the State, and aside from the statute of limitations, a careful examination of the evidence has satisfied us that after waiving all technicalities and by applying to the facts the most liberal principles of equity, it clearly appears that there is no merit in this claim against the State of Illinois for any sum whatever.

The claim is therefore rejected.


text:
    Henrietta E. Harper v. The State of Illinois.

      Opinion filed November 16, 1904.

    1. Respondeat Superior—doctrine does not apply to counties, townships, etc. The doctrine of respondeat superior is not applicable to municipal corporations, such as counties, townships, school districts, road districts, drainage districts, etc.
    2. Same—doctrine does not apply to State. The doctrine of respondeat superior does not apply to the State.
   During the month of August, 1902, the claimant, Henrietta E. Harper, a woman of mature years, in company with other members of her family, while visiting Lincoln Park, in the city of Chicago, for her own amusement and that of her companions, indulged in feeding the zebras kept there on exhibition. These zebras were confined in an enclosure about seventy-five (75) feet square, made by a wire fence about four (4) feet high, outside of which fence and on the side accessible to visitors, was another wire fence between seven and eight feet high; the outside fence being a few feet from the inner fence. The claimant thrust her hands through the meshes of the outside fence, and while with her hand in this position, was throwing bread over the inner fence to the zebras, one of which rushed up to the inner fence and reaching over it, seized her thumb with its teeth, thereby inflicting a severe and permanent injury upon her. To recover compensation for said injury, this claim is filed against the State.

It is contended by claimant that the said Board of Park Commissioners, through its employes) 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 employes were officers and agents of the State, the State is therefore liable for said injuries.

The general rule of law is that the principle is liable for the negligent acts of its servants, in the course or scope of their 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.

Dillon on Mun. Cor., Secs. 975-978;

Waltham v. Kemper, 55 Ill., 346;

Hedges v. County of Madison, 1 Gil., 567;

Elsmore v. Drainage Comrs., 135 Ill., 269.

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, as 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 and difficulties and losses, which would be subversive of the public interest. Laches is never imputed to the government.

Story on Agency, Sec. 318.

Dill on Mun. Corp., Sec. 975.

In the case of Jacob Schmidt v. State, decided by the Commissions of Claims in this State in 1890, and in other cases since decided, it has been uniformly held, that the doctrine of respondeat superior does not apply to the State, and the following cases are cited in support of this position.

Murdock Parlor Grate Co. v. Com., 24 N. E., 855.

Hill v. Boston, 122 Mass., 344.

Gibbons v. U. S., 8 Wall, 269.

2 Dillon Mun. Cor., Sec. 761-2.

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

Town of Waltham v. Kemper, 55 Ill., 346.

This claim is therefore rejected.

Jambs M. Lee,

Luther M. Dearborn,

The case having been submitted and oral argument heard before his appointment, Judge Searle took no part in the decision. Nov. 16, 1904.

Luther M. Dearborn,

Presiding Judge.