author: Mr. Justice Yantis

text:
    (No. 3059
    Joseph Pudenz, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 18, 1937.

    Claimant, pro se.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

A stipulation filed herein discloses that claimant, on April 30, 1936 made application to respondent for a license as a wholesale malt liquor dealer, for the period from May 1, 1936 to June 30, 1937, for which he voluntarily paid the sum of One Hundred Sixteen and 67/100 ($116.67), being the proper fee for a license as a distributor for such period of time.

That on May 11, 1936 the Illinois Liquor Control Commission issued the desired license upon such application and deposit. That on May 15,1936 claimant sold and disposed of his business, and notified the commission to that effect, and requested a refund of that portion of the fee which he had paid, for the period from July 1, 1936 to June 30, 1937, to-wit One Hundred ($100.00) Dollars; further, that during the period from April 30,1936 to May 15,1936 claimant continued to be engaged in said business. Claimant predicates his claim upon the fact that had he desired to do so he could have applied for a license for a two-months period expiring June 30, 1936, or for a period of fourteen months, expiring June 30, 1937, such option being given to the applicant under the terms of the Illinois Liquor Control Act as amended, effective July 1, 1935.

The Attorney General has filed a motion to dismiss the claim for the reason that the law makes no provision for a refund of a portion of such license fee on the ground that plaintiff had disposed of his business and no longer required such license.

Claimant’s election to apply for a fourteen-months license instead of a two-months license was a matter of his own decision. He voluntarily expressed his option in favor of the license for the longer period, and the fact that he later saw fit to sell his business does not in the absence of a statute authorizing such refund, justify the court in granting an award. The Illinois Liquor Control Act authorizes refunds where the application is denied; where the licensee dies or becomes bankrupt; or where the political sub-division in which he is licensed becomes prohibition territory. The fact that an applicant after operating for a time sees fit to surrender the privilege granted by such license, does not justify a refund in the absence of a statutory provision. A similar ruling is found in the case of William H. Tott, No. 3035, denied at the present term.

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


source: Caselaw Access Project

author: Mr. Justice Tantis

license: Public Domain

text:
    (No. 3050
    Oppenheimer Casing Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 18, 1937.

    Claimant, pro se.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant seeks an award for an alleged overpayment of Four ($4.00) Dollars which he paid for automobile license for a Plymouth car for the year 1935. In making its claim, plaintiff recites that “in applying for a license for this automobile, the H. P. was erroneously indicated as being 25.35 which necessitated payment of a higher fee . . . Further, that the correct H. P. should have been stated as 23.44.” The registration fee was assessed on the basis of the statements made in the application, and the license fee submitted by claimant was accepted in connection with such application and license duly issued. Claimant now seeks an award for the Four ($4.00) Dollars as such alleged overpayment.

Where no objections have been interposed claims of a similar nature have at times been allowed. Respondent herein moves to dismiss this claim for the reason that it appears on the face of said claim that such registration fee was based upon a statement of facts, made by claimant, upon which the Secretary of State was justified in relying; that such payment was not made under protest, and that the fee was assessed correctly on the basis of the application made.

When the amount of a tax or fee is correctly computed and assessed in accordance with law based on information submitted by claimant, claim for refund, of a part thereof alleged to have been excessive, on account of error in the information submitted by claimant, will be denied. Seth Seiders, Inc. vs. State, 7 C. C. R. 9.

Under the objection interposed by respondent, the motion to dismiss is hereby allowed and claim dismissed.


author: Mb. Chief Justice Hollebich

text:
    (No. 3057
    Percy Monahan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 19, 1937.

    Leopold Saltiel, for claimant.
    Otto Kebneb, Attorney General; Mubbay F. Milne, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

Claimant filed his complaint herein on February 18th, 1937, and alleges therein in substance that on March 23d, 1936 he was an inmate of the Illinois State Penitentiary at Joliet; that he was a member of the prison band, and on the last mentioned date was assembled with said band in the dining-room of the penitentiary; that he was then and there in the exercise of all due care and caution for his own safety; that one of the guards stationed in said dining room carelessly, negligently and improperly handled a certain gun, whereby the same was discharged and the bullet therefrom struck the claimant in the leg, and as the result thereof he sustained serious and permanent injuries, for which he asks compensation.

The Attorney General has filed a motion to dismiss the p.la.im on the ground that the doctrine of respondeat superior does not apply to the State in the operation of its penal institutions, and that therefore- there is no liability on the part of the State for the injuries sustained by the claimant.

This court has repeatedly held that in the management and operation of its charitable and penal institutions, the State is engaged in a governmental function, and has also repeatedly held that in the exercise of its governmental functions, the State is not liable for the negligence of its servants and agents under the doctrine of respondeat superior in the absence of a statute making it so liable. Schwab vs. State, 4 C. C. R. 77; Burghardt vs. State, 5 C. C. R. 221; Pelka vs. State, 6 C. C. R. 390; Sturrock vs. State, 7 C. C. R. 157; Parks vs. State, 8 C. C. R. 535; Schaefer vs. State, No. 1968, decided at the September, 1935, term of this court; White vs. State, No. 2859, decided at the May, 1936, term of this court; Edward Shilkitis vs. State, No. 2355, decided at the January, 1937, term of this court; Henry F. Meyers vs. State, No. 2782, decided at the present term of this court.

There being no liability on the part of the State if the State were suable, we have no authority to allow an award. Crabtree vs. State, 7 C. C. R. 207.

The motion of the Attorney General to dismiss the case must therefore be sustained. Motion to dismiss allowed. Case dismissed.


text:
    (No. 2876
    Alta Sullivan, an Insane Person, John Sullivan, a Minor and William Sullivan, a Minor, All Appearing by Mary Sullivan, Their Next Friend, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 15, 1937.

    Downing, Gumbart & Grigsby, for claimant.
    Otto Kerner, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

On May 5, 1933 Herman J. Arnold, Administrator of the Estate of Ambrose Sullivan, deceased, filed his complaint in the Court of Claims, seeking an award of Ten Thousand ($10,000.00) Dollars for the accidental death of Ambrose Sullivan. The complaint was drawn as an action of trespass on the case, but plaintiff changed his prayer for relief and sought an award under the provisions of the Workmen’s Compensation Act of Illinois.

The Attorney General contended that claimant was not entitled to recover for the following reasons:

1. That no claim for compensation had been made "within six months after the accident as required by Section 24 of the Workmen’s Compensation Act.

2. That the accident in question did not arise out of the employment of said decedent.

The record failing to disclose compliance with Section 24, the award was denied and the claim dismissed. The opinion appears as claim No. 2171, 8 C. C. R. P. 399.

On April 1, 1936 Alta Sullivan, an insane person and "widow of Ambrose Sullivan, and John Sullivan and William Sullivan, minor children of Ambrose Sullivan, filed the present claim, by Mary Sullivan, their next friend, and herein seek an award under the terms of the Workmen’s Compensation Act for the death of Ambrose Sullivan.

By a stipulation between the attorneys for the respective parties, all evidence, stipulations, briefs and arguments in the former case, No. 2171, are accepted as a part of the record in the present case. In addition thereto, testimony was taken as to the insanity of Alta Sullivan, surviving widow. Claimants herein allege that the insanity of Alta Sullivan and the fact óf the minority age of said children creates an exception as to each in regard to the time limit stated in Section 24 of the Workmen’s Compensation Act.

The Attorney General interposes the following objections :

1. Jurisdiction of claim by this court in the absence of compliance as to notice required by Section 24 of the Workmen’s Compensation Act.

2. Whether the adjudication in Claim No. 2171 is as to this claim, res adjudicata?

3. Did the injury to Ambrose Sullivan arise out of and in the course of the latter’s employment?

4. Amount of compensation, if any, payable to claimants.

A condensed statement of facts as found in the former opinion and the additional evidence taken herein is as follows :

For about eight days prior to the 16th day of June, A. D. 1932, Ambrose Sullivan had been employed by respondent in mowing weeds on S. B. I. Routes Nine (9), Three (3) and Ninety-five (95) in McDonough County, under the supervision of Jesse Walters, Highway Maintenance Superintendent. Sullivan lived about two miles north of Macomb, and was the owner of a team of horses and a mower which he used in his said work. For the first few days of his employment he worked near his home, and drove the team home at the end of the day’s work. After the first few days, he was at some considerable distance from his home at quitting time, and on those days he left his team and mower with some farmer who lived near the place where he stopped work, and rode home with Mr. Jesse Walters, the Maintenance Superintendent, and the next morning he would come out with his Maintenance Superintendent to the place where he left his team the night before. The matter or custom of riding back and forth with the Maintenance Superintendent was not a part of the contract, but was a sort of mutual arrangement or understanding between them. The same custom existed with other men who were also employed in mowing weeds. The mowers ordinarily worked nine hours a day, usually commencing at seven o’clock A. M. and quitting at five o’clock P. M. Sometimes they started a little before seven or a little after seven, but they aimed to start work at seven o’clock. Their time commenced when they got on the job. On a wet morning their time commenced when the weeds were dry enough to mow.

On June 15th, 1932 Sullivan was about seven miles from his home when he quit work. He left his team and mower with a farmer living about forty rods north of S. B. I. Route 95, and rode home with his Maintenance Superintendent.

The next morning the Maintenance Superintendent in driving out to work met Sullivan about one-half, mile from his (Sullivan’s) house, and stopped to pick him up. The Maintenance Superintendent was driving a small pick-up truck with a single seat, and there were two men riding in the seat with the driver. Sullivan rode in the back of the truck, which went north on Route 3 to the junction and then east on Route 95, to a point about seven miles from Macomb where the Maintenance Superintendent stopped the truck so that Sullivan could get out and get his team and mower. Sullivan got out and started across the road to the north. Just then Mr. Walters, the Maintenance Superintendent, called to him and he came back. In this connection Mr. Walters testified:

“It had come a rain the day before and we were in doubts whether it was going to dry enough to go on mowing. After he got out I spoke to him, and I said, ‘Mr. Sullivan, you can use your own judgment about when to start.’ ”

Homer B. Carey, the only other witness who testified as to this conversation, said:

“Mr. Sullivan got out and started across the road and Jesse hollered at him and called him back and told him that it was too wet, we wouldn’t hitch up for about two hours until it got a little dryer.”

After tills conversation, Sullivan started back across the road again to the north. Just then one Keith Sapp who was also driving east on said Route 95, approached the State truck, and turned to the left to pass it just as Sullivan was crossing the road the second time. Sapp turned further to the left to avoid an accident, but Sullivan evidently became confused, and ran into the side of Sapp’s car, whereby he was thrown to the pavement, and sustained injuries from which he died while being taken to the hospital.

Sullivan left him surviving his wife and four children, two of whom were under sixteen years of age at the time.

Sullivan’s earnings were eighty-five cents (85c) per hour for himself, ’ team and mower, of which amount forty cents (40c) was regarded as his for his individual services and the balance for the team and mower.

The shock of the death of Ambrose Sullivan apparently upset the mental condition of his wife, Alta Sullivan, and from that time forward her mental disability increased. Right after the accident she was placed in St. Francis Hospital at Macomb for a brief time because of her mental condition, and eventually on April 29, 1934 she was adjudged insane in a proceeding of the County Court of McDonough County, Illinois. She was released on furlough as an improved patient in September, 1934, but never recovered her normal mentality and was again recommitted to the State Hospital at Peoria, and was under confinement at the latter place at the time of taking the evidence in this cause. Dr. Joseph H. Davis of Macomb testified that he attended Mrs. Sullivan; that at the time of the death of her husband ‘£ she went all to pieces and got very bad mentally — so bad, that we finally had to adjudge her insane and take her away. It all seemed to be due to worry over the death of her husband ... I was one of the commission that examined her at the time she was adjudged insane . . . Prior to that we tried to control her by giving her sedatives ... I do not think that she was capable of transacting any business of a serious nature at any time after the death of Mr. Sullivan.” Alta Sullivan has never remarried. The child, William Sullivan, was born March 4, 1920 and John Sullivan was born January 7, 1918. All were dependent upon Ambrose Sullivan at the time of his death and are now living.

The first objection by respondent is as to the jurisdiction • of the court.

It is apparent from the record that Ambrose Sullivan and respondent were both within the terms of the Workmen’s Compensation Act at the time of the latter’s death, and that under the terms of Paragraph 6, Section 6 of the Court of Claims Act this court has jurisdiction of Workmen’s Compensation Claims arising out of accidents to State employees. The first material question is, “Are Claimants herein barred under Section 24 of the Act because of failure to file notice of claim within six months after the accident, and for failure to file application for compensation within one year after the date of the death of Ambrose Sullivan?” While such time limits definitely apply to compensation claims in general, said Section 24 contains the further provision,

“That in case of mental incapacity — of any dependent of a deceased employee who may be entitled to compensation under the provisions of this Act, the limitations of time by this Act provided shall not begin to run against said mental incompetents until a Conservator or Guardian has been appointed.”

Claimant contends that under the showing made in the record as to the mental disability of Alta Sullivan, surviving widow of Ambrose Sullivan, the running of the statute has been tolled as against her, under the specific exception recited in Section 24 of the Workmen’s Compensation Act, and that inasmuch as the children, William Sullivan and John Sullivan, were minors and under the age of sixteen years at the time1 of their father’s death, a proper construction of said Section 24 should also grant to them an exception as to compliance with the requirements of such section in the matter of time limitations.

The question as to the latter exception is not material under the decision of this case, for if an award is granted it will be granted to the mother and if so granted, then under the terms of Section 7 (h-2) the award provided for in Section 7 (a) of & sum equal to four times the average annual earnings of the employee and not more in any event than Four Thousand ($4,000.00) Dollars is increased by said Section 7 (h-2) to a possible maximum of four times the average annual wages plus $450.00.

The evidence in the record sufficiently establishes the fact that Alta Sullivan suffered from mental incapacity from the time immediately following the death of her husband. The Doctor’s evidence and the records show that she became a mental patient in a local hospital very shortly thereafter, has been committed and recommitted to one of the State Institutions for the insane, and is now so confined; further, that no Conservator has ever been appointed for her. We therefore find that the statute of limitations has not run against Alta Sullivan; and that the court has jurisdiction of the parties and the subject matter hereof.

Upon the second objection, i. e. whether the adjudication in Claim No. 2171 is as to this claim res adjudicata, the court finds — that the former action was brought by Herman J. Arnold as Administrator of the Estate of Ambrose Sullivan, deceased; that the parties plaintiff are not the same.

“The requisites of a judgment, pleaded as a bar in general require that a plea of res adjudicata cannot prevail unless there is a concurrence of four elements; identity in the thing sued for; identity in the cause of action; identity of persons and of parties to the action; identity of quality in the persons for or against whom, the claim is made.”
S-j C. J. p. 752, Judgments, Par. 1162.
“A judgment for defendant on the ground that the court is without jurisdiction is not a bar to a subsequent action.”
SJf G. J. p. 776, Judgments, Par. 119J¡.

We therefore find that the former case of Arnold, Administrator, etc. vs. State, C. C. R. No. 2171 is not res adjudícala as to the present claim.

The second material question then is, “Did the injury arise out of and in the course of the employment?”

Ambrose Sullivan was engaged as a laborer to mow weeds along the improved highway of the State of Illinois known as S. B. I. No. 95; on the 23rd day of June, A. D. 1932 he was struck by an automobile traveling on said highway; said accident occurred at the cross-roads where his actual work was to begin. At the time of the accident he was on the premises of respondent, and at the scene of his employment. The accident happened at approximately 7 o’clock A. M. just before Sullivan was to enter upon his day’s labors. He had ridden to the point in question in a State owned truck driven by Jess Walters, Highway Superintendent in charge of maintenance work at said point. The team and mower that Sullivan had previously used and with which he was to resume operations on the morning in question were at a farm one-fourth mile down the dirt highway that intersected with S. B. I. Route No. 95. He alighted from the truck at the intersection and started across the road, just as Keith Sapp approached from the rear in his own automobile; both cars were going east; Sapp pulled to the left to go around the State truck and blew his horn. Sullivan came around from the back of the truck and ran across on the slab in front of Sapp’s car. The latter pulled off the pavement on the left-hand side of the road until he was entirely off the slab. Notwithstanding this, the car side-swiped Sullivan and he died from the effect of the injury received.

An issue is raised in the record as to whether Sullivan’s employment had begun at the time of the accident, or whether he was still on his way to such employment; and if the latter whether he was on the premises of respondent, en route to his employment, and thereby entitled to recover for injuries received, under the terms of the Workmen’s Compensation Act. The fact that he was riding in a track owned by the State is not material, for the evidence shows that transportation from town to the scene of his daily labors was not included under the terms of his employment, but was in fact a mere accommodation extended him by his superior, Mr. Walters. At the time of the accident however, Sullivan had in fact arrived at the actual point where his labor was to be performed. His employment consisted of mowing weeds. His scale of pay was Forty Cents (40c) per hour when individually employed; Seventy Cents (70c) per hour for his services with his team and Eighty-five Cents (85c) per hour when he used his team and mower. On the morning in question he was to have obtained his team and mower at a point one-fourth mile up the dirt road from the intersection where he was killed, and had the accident not resulted he would have returned with the team and mower to the point where he alighted from the truck. His fellow employee, Homer B. Carey, testified that when Sullivan got out of the track and started across the road, his Superintendent Walters “hollered at him and called him back, told him it was too wet; we wouldn’t hitch up for about two hours until it got a little dryer.” He started back across the road and he run into this car of Sapp’s and was killed.” He further testified, that he believed the reason Sullivan did not see the approaching car was because his attention was directed to Mr. Walters, when the latter called him back.

Jesse Walters testified “We stopped to let Sullivan out . . . after he got out I said ‘Mr. Sullivan yon can use your own judgment about when to start’ ... he was back of the truck then. His time was to start that morning whenever the grass or weeds were dry enough to mow ... we always aimed to start the time at 7 o’clock, but a morning like that when it was wet we didn’t know when we would get started.”

In the case of Indian Hill Country Club vs. Ind. Comm. 309 Ill. 271, a caddie twelve years old had waited near the Club House, until it was evident his services would not be needed. He was leaving the grounds but still on the premises when injured. The court said — 1

“It is not essential to the right to receive compensation that the employee should, have been working at the particular time when the injury was received. The employment is not limited to the exact moment when he begins work and when he quits work. An injury accidentally received on the premises of the employer by an employee while going to or from his place of employment by a customary or permitted route within a reasonable time before or after work, is received in the course of and arises out of the employment.”
“Whether the exact hour of seven o’clock had arrived or whether it was a few minutes either before or after seven is not material so long as a substantial and reasonable compliance with the employer’s requirements is shown.”
Union Starch Co. vs. Ind. Comm., 344 Ill. 77.

At the time of the accident in question Sullivan was on the premises of his employer; was at the immediate place where his labors were to be performed; was to determine the exact moment when his actual labor should start; was traveling a natural and permissible course included in the field of his labor, and at the exact moment of his death was receiving instructions from his superior as to the performance of such duties. We believe the record sufficiently discloses that the accidental injuries resulting in the death of Ambrose Sullivan arose out of and in the course of his employment, within the meaning of the Workmen’s Compensation Act.

The remaining question is the amount of compensation to which claimant is entitled.

Section 7 (a) of the Workmen’s Compensation Act provides—
“The amount of compensation which shall he paid for an injury — resulting in death shall be:
(a) If the employee leaves any widow, child or children, whom he was under legal obligation to support at the time of his injury, a sum equal to four times the average annual earnings of the employee, but not less in any event than $2,500.00 and not more in any event than $4,000.00.”
..Section 7 (h-1), Workmen’s Compensation Act.
“Whenever in paragraph (a) of this section a minimum of $2,500.00 is provided, such minimum shall be increased to the amount: $3,100.00 in case of two children under the age of sixteen years at the time of the death of the employee.”
Section 7 (h-S), Workmen’s Compensation Act.
“Whenever four times the average annual earnings of the deceased employee as provided in paragraph (a) of this section amounts to more than $2,500.00 and to less than $4,000.00, the amount so payable under said paragraph shall be increased as follows: In case such employee left surviving him two children under the age of sixteen years, the amount so payable shall be increased $450.00.”

While Ambrose Sullivan was receiving Eighty-five (85c) Cents per hour for his own labor and that of the use of his team and mower, the evidence shows that his individual wages were Forty (40c) Cents per hour on the basis of a nine-hour a day, and being intermittently hired would become within the rule of two hundred (200) days per year, thus making his average annual earnings Seven Hundred Twenty ($720.00) Dollars. Four times thereof is Two Thousand Eight Hundred Eighty ($2,880.00) Dollars. Claimant contends for an allowance of Three Thousand One Hundred ($3,100.00) Dollars under the provisions of Section 7 (h-1). Counsel for respondent contend that the allowance, if any, should be only in the amount of Two Thousand Eight Hundred Eighty ($2,880.00) Dollars, and that no allowance for the children under sixteen years of age is justified for the alleged reason that a claim by the children is barred by the limitations of Section 24 of the Workmen’s Compensation Act and that it would be an anomalous situation if additional compensation would be paid to those who are not legal claimants.

As has heretofore been noted, the surviving widow being recognized as a proper claimant, the amount payable to her is determined by the fact as to whether the injured employee did or did not leave dependent children under the age of sixteen years at the time of his death, and while the amount of such increased payment, if any, may under the provisions of Section 7(g) be divided among the surviving widow and such children as the court may deem best, such award in the first instance is in fact made to the surviving widow. As expressive of the court’s opinion in the matter however, we believe under the authority of McDonald vs. City of Spring Valley, 285 Ill. 52 and Walgreen Co. vs. Ind. Comm. 323 Ill. 194, that notwithstanding the fact that the Workmen’s Compensation Act provides in general in Section 24 for certain limitations of time, that such limitations do not run against minors of tender years, and that a construction of such Act in connection with the well known rules of law pertaining to the rights of minors and the tolling of statutes of limitations pertaining to them, would preclude the limitations of Section 24 from applying to such minors. As stated in the former case ‘1 The recognition by the law, of the status of infants, and of their exemption up to a certain age from liability under the law, is so well known that it must be presumed that the legislature, in enacting such a statute as the one under consideration, did not intend by the general language used to include within its provisions a class of persons which the law has universally recognized to be utterly devoid of responsibility.” However, in the present case as stated above, the award is being allowed because the surviving wife is a proper claimant, and the amount of the award is fixed by the number and status of the dependents left surviving. Under the construction given the several provisions of Section 7 of the Workmen’s Compensation Act, in the case of Moweaqua Coal Corporation vs. Ind. Comm. 360 Ill. 194, the amount of compensation due in the present ease is fixed by Section 7 (h-2). The annual wages of Seven Hundred Twenty ($720.00) Dollars multiplied by four equals Two Thousand Eight Hundred Eighty ($2,880.00) Dollars, and that being more than Two Thousand Five Hundred ($2,500.00) Dollars and less than Four Thousand ($4,000.00) Dollars, the allowance is increased under the terms of Section 7 (h-2) the sum of Four Hundred Fifty ($450.00) Dollars, or a total of Three Thousand Three Hundred Thirty ($3,330.00) Dollars.

We find that the persons who form the basis for determining the amount of compensation to be paid, and the respective shares to be so paid, in proportion to their respective dependencies are as follows:

Allowance, account Alta Sullivan, surviving wife......... $2,880.00
Allowance, account John Sullivan and William Sullivan, surviving children under sixteen years of age.......... 450.00
$3,330.00

An award is hereby allowed in favor of claimant Alta Sullivan by Mary Sullivan, her next friend in the sum of Three Thousand Three Hundred Thirty ($3,330.00) Dollars; Four Hundred Fifty ($450.00) Dollars of which is allowed because of the survivorship of John Sullivan, age fourteen years at the time of his father’s death, in June, 1932, and William Sullivan, age twelve years at that time.

It is ordinarily contemplated that a surviving parent will use a substantial part of funds received, for care and support of the minor children. In view of the conservatorship required for Alta Sullivan, it seems equitable and best under the authority of said Section 7(g) of the Act, for the court to order payment of said award of Three Thousand Three Hundred Thirty ($3,330.00) Dollars, as follows, to-wit:

One-third payable to the Conservator of Alta Sullivan.
• One-third payable to the Guardian of William Sullivan.
One-third payable to the Guardian of John Sullivan.

It is Therefore Ordered that immediate warrants be issued as follows, to-wit:

To the Conservator of Alta Sullivan for................. $1,072.00
To the Guardian of William Sullivan for................ 1,072.00
To the Guardian of John Sullivan for................... 1,072.00

and that future monthly warrants be issued to said conservator and guardians respectively for payments of Four ($4.00) Dollars per week each, commencing with the week ending August 29th, and continuing until each of said three persons have respectively received the further sum of Thirty-eight ($38.00) Dollars.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” Approved July 3, 1937 (Sess. Laws 1937, p. 83) and being, by the terms of such act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from such appropriation from the Road Fund in the manner provided for in such Act.


author: Mr. Justice Linscott

text:
    (No. 2786
    Handy Button Machine Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 15, 1937.

    Stavins & Perlman, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

An opinion was filed in above matter on February 10th, 1937; rehearing was allowed, and upon rehearing, the following opinion is substituted for the original opinion herein:

Claimant filed its complaint herein on December 28th, 1935, and therein asks an award in the amount of $87.50 on account of an annual overpayment of franchise tax in the amount of $12.50 for the years 1927 to 1933, both inclusive.

Section 10 of the Court of Claims Law provides that every claim against the State cognizable by the Court of Claims shall be forever barred unless the claim is filed with the Secretary of the Court within five years after the claim first accrues. The complaint herein was filed December 28th, 1935, and we are therefore limited to a consideration of the overpayments claimed to have been made by claimant subsequent to December 28th, 1930.

From the evidence in the record it appears that for the years 1931, 1932 and 1933 claimant duly filed its annual report with the Secretary of State on the forms prepared by such secretary; that each of such reports listed the total amount of capital stock issued at $225,000.00; that in each of such years (1931, 1932 and 1933) claimant was assessed and paid an annual franchise tax in the amount of $125.00.

It is admitted that on the basis of such annual reports, claimant should have been assessed and required to pay an annual franchise tax in the sum of $112.50, to-wit, $12.50 less than it actually paid, and that the error was the result of inadvertence or mistake in the office of the Secretary of State.

It is a well-settled principle of law that a tax voluntarily paid, with a full knowledge of the facts, cannot be recovered back, in the absence of a statute authorizing such recovery. It is equally well established that where a tax is paid under a mistake of fact, such payment is considered as not having been voluntarily made, and may -be recovered. Yates vs. Royal Insurance Co., 200 Ill. 202; Board of Education vs. Toennigs, 287 Ill. 469; School of Domestic Arts vs. Harding, 331 Ill. 330; Richardson Lubricating Co. vs. Kinney, 337 Ill. 122; Hettler Lumber Co. vs. Cook County, 336 Ill. 645; Cooper Kanaley & Co. vs. Gill, 363 Ill. 418; Americm Can Co. vs. Gill, 364 Ill. 254.

The difficulty arises in determining whether under the facts in the particular case, payment was made voluntarily, or whether it was made under a mistake of fact.

This claim arose prior to the adoption of “The Business Corporation Act” of this State, and therefore the rights of the claimant herein must be governed by the provisions of The General Corporation Act of this State, approved June 12th, 1919, in force July 1st, 1919 as amended.

Section 111 of such Act provides that the Secretary of State shall have power to hear and determine objections to any assessment within the time specified in the Act, and after hearing, to change or modify such assessment.

Section 112 of such Act provides that between the first day of February, and the 15th day of June of each year, the Secretary of State shall mail a notice in writing to each corporation against which a tax is assessed, notifying such corporation of the amount of the tax assessed against it, and that objections, if any, to such assessment will be heard by the officer making such assessment, upon request by the corporation on a date not later than the 25th day of June, etc.

The record fails to show that any objection was made by claimant to the tax assessed against it, or that a hearing was requested by the claimant, in accordance with the provisions of Section 112.

In an annotation appearing in 64 A. L. R, on page 55, the annotator after considering a large number of cases from different jurisdictions, reaches the following conclusion:

“According to this line of cases, representing, probably, the weight of authority, where the taxpayer has some other legal remedy or protection against the coercive acts of the collecting officer, he is bound to avail himself thereof, and if he neglects to do so, and pays the tax, such payment is deemed voluntary.”

In Cooley on Taxation, 2d edition, page 810, the author says:

“All payments are supposed to be voluntary until the contrary is made to appear. Nor is the mere fact that a tax is paid unwillingly or with complaint, of any legal importance, but there must be in the case some degree of compulsion, to which the taxpayer submits at the time but with notification of some sort equivalent to reservation of rights.”

The foregoing* statement is quoted with approval by our Supreme Court in the case of Yates vs. Royal Insurance Co., 200 Ill. 202, in which case the plaintiff sought to recover certain taxes which it had paid pursuant to the provisions of a law which was thereafter held to be unconstitutional. The court in that case held that the payment was voluntarily made, and that the plaintiff was not entitled to recover.

In the case of Walzer vs. Board of Education, 160 Ill. 272, the County Clerk erroneously entered certain real estate upon the tax collector’s book as being in School District No. 1, whereas, in fact, it was located in District No. 2. The property owners paid the tax without knowledge of the mistake. The amount paid was in excess of what they would have been required to pay if assessed in the proper district. In denying a right of recovery, the court, on page 275, said:

"The tax levied by District No. 1, as extended on lands belonging to District No. 2, was an illegal and void tax. That tax was paid by the owners of the property so illegally assessed, voluntarily. The books were open to inspection by the taxpayers, and the means of knowledge existed to learn and know all the facts. Money paid voluntarily by one with knowledge or means of knowledge of all the facts cannot be recovered back.”

In the recent case of Cooper Kanaley Co. vs. Gill, 363 Ill. 418, a clerk in the assessor’s office by mistake marked on the record card of plaintiff’s property the fact that it was improved by a three-story hotel, and the property was assessed accordingly. As a matter of fact, the three-story hotel was on an adjoining lot. As a result of this mistake, plaintiff’s taxes were over $2,000.00 in excess of what they would have been, had no mistake been made. In deciding that the payments were made voluntarily, and therefore could not be recovered, the court said:

“Where taxes have been voluntarily paid in full on an over-assessment, due to arriving at a value based on mistake either of fact or judgment or other error on the part of the assessor, and where fraud was not an element in the over-assessment, courts are without jurisdiction to afford relief.”

The statute provided a remedy for the claimant, but it failed to take advantage thereof. It paid the tax voluntarily, with a full knowledge of all the facts, and consequently under the decisions above referred to, the payment must be consid-' ered as having been voluntarily made, and claimant therefore is not entitled to a refund.

Award denied. Case dismissed.


author: Me. Jttstice Yantis

text:
    (No. 3035
    William H. Yott, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 15, 1937.

    Herman Jacobs, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Me. Jttstice Yantis

delivered the opinion of the court:

During the fiscal year 1935-36 claimant was engaged in the retail liquor business under license which expired April 30,1936. Claimant in due course applied for a license as such retailer for the period from May 1, 1936 to June 30, 1937 and remitted therefor the proper fee in the sum of Fifty-eight and 33/100 ($58.33) Dollars, a receipt for which was given to him on May 2, 1936 by the Illinois Liquor Commission. On June 8, 1936 the Certificate or License was issued, to expire on June 30, 1937.

On or before June 6, 1936, plaintiff sold his interest in the tavern to one Patrick Murray, who immediately took over the operation of tavern. According to the record, plaintiff has not operated the tavern since the day of the sale. He requested a refund from the Illinois Liquor Control Commission and has filed his present claim in the amount of $58.33 for the unused portion or period of such license permit.

The Attorney General on behalf of respondent has filed a motion to dismiss said claim, for the reason that there is no provision in law authorizing a refund of liquor license fees after the period has commenced to run for which such license was issued.

The Illinois Liquor Control Law does not provide for a refund of license fee where licensee disposes of his business and ceases to operate same, after application for such license is made, and after commencement of such license period, even though the actual issuance of such certificate has not yet taken place.

■Paragraph 26 of the Liquor Control Act of Illinois (State Bar Statutes, Chap. 43) authorizes a refund of the unearned portion of license fees in only three cases, to-wit:

1. Where application is denied.
2. In case of the death, insolvency or bankruptcy of the licensee.
3. Where the political subdivision, etc., in which licensed premises are situated becomes prohibition territory during the term of the license.

The present claim does not come within either of the situations stated and there is no authority for allowance of said claim. Similar questions have been before the court in the following cases: Robb vs. State, No. 2706, decided at the January Term, 1936; Black vs. State, No. 2971, and Beals, etc. vs. State, No. 3020, both decided at the May Term, 1937, in all of which awards have been denied. By action of the legislature of 1937 (see Session Laws 1937, page 95), claimant is given right of redress upon direct application to State Department of Finance.

The motion of respondent is allowed and the claim dismissed.


text:
    (No. 3014
    Kathryne Ryan, Widow of R. J. Ryan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 15, 1937.

    Olaimant, pro se.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Under a stipulation of facts filed in the above entitled cause it is disclosed that Kathryne Ryan, claimant herein, is the widow of Richard J. Ryan, deceased; that on the 13th day of June, 1936, and continuously for more than a year prior thereto, Richard J. Ryan was an employee in the Department of Public Works and Buildings, Highway Division of the State of Illinois, as a Maintenance Patrolman.

That on June 13, 1936 while he was engaged in sweeping loose stones at the intersection of U. S. Routes No. 12 and No. 14, two cars collided; one of them skidded across the pavement, overturned and knocked Ryan into a sign post, causing’ injuries from which he died two days later. Deceased left surviving*, Kathryne Ryan, his widow, and the following children; Patricia, age nine years, Joan, age five years and Alice, age eight months. Deceased was employed by respondent February 10, 1933 as Maintenance Patrolman, at a salary of One Hundred ($100.00) Dollars per month. He continued in such position until the time of his death, his salary having been increased, September 1, 1935, to One Hundred Twenty ($120.00) Dollars per month. All medical, hospital, nursing and ambulance bills have been paid by the State, in the sum of Two Hundred Fifty-seven and 25/100 ($257.25) Dollars. Claimant seeks an award of Five Thousand Five Hundred ($5,500.00) Dollars, under the terms of the Workmen’s Compensation Act of Illinois.

It is apparent from the record that the actual injuries which caused the death of Richard J. Ryan arose out of and in the course of his employment; that respondent and the employee at the time of the accident were both under the provisions of said Act; that compliance with the various pro-' visions of said Act have been observed in making claim herein; that inasmuch as the deceased employee left surviving, a widow and three children under the age of sixteen years, the amount due, if any, would be a sum equal to four times the average annual earnings of said employee, with the maximum allowance increased from Four Thousand ($4,000.00) Dollars to Five Thousand Five Hundred ($5,500.00) Dollars by virtue of Sections 7(a) 7(h-3) of the Workmen’s Compensation Act of Illinois.

Plaintiff’s actual wages for the year prior to his death were apparently One Thousand Three Hundred Ninety ($1,390.00) Dollars. Four times such amount exceeds the maximum allowance and a total award of Five Thousand Five Hundred ($5,500.00) Dollars would therefore be authorized. The usual basis for payments of fifty (50) per cent of the average weekly wage is increased to sixty-five (65) per cent because of the survival of three children. His average weekly wages would figure Twenty-seven and 69/100 ($27.69) Dollars, and payments therefore on award at Eighteen ($18.00) Dollars per week are authorized by virtue of Section 8(j3) of the Act. The amount of One Thousand One Hundred and Seventy ($1,170.00) Dollars has accrued as an earned award from June 15, 1936 to September 15, 1937, and the remainder is due in future payments.

The court finds Richard J. Ryan left surviving him at time of his death his widow, Kathryne Ryan, and his three daughters, Patricia Ryan, Joan Ryan, and Alice Ryan, the last three being each under the age of sixteen years and all dependent upon said Richard J. Ryan. The court finds that there is due on account of Kathryne Ryan, the surviving widow of Richard J. Ryan, deceased, under the terms of Section 7(a) of the Workmen’s Compensation Act, the sum of Four Thousand ($4,000.00) Dollars; that there is also due the further sum of Fifteen Hundred ($1,500.00) by reason of the dependency of Patricia Ryan, Joan Ryan, and Alice Ryan, the three children of Richard J. Ryan, deceased, who were under the age of sixteen years at the time of their father’s death.

The court in its discretion, as authorized under Section 7(g) of the Workmen’s Compensation Act, further finds that the total amount of such payments including both the sum of Four Thousand ($4,000.00) Dollars due the surviving widow and the additional amount of Fifteen Hundred ($1,500.00) Dollars awarded on account of such minor children should be paid direct to the said Kathryne Ryan for the use of herself and said children until the further order of this court.

It is Therefore Ordered that an award be and the same is hereby allowed in favor of Kathryne Ryan, Patricia Ryan, Joan Ryan, and Alice Ryan, in the sum of Five Thousand Five Hundred ($5,500.00) Dollars, payable to the order of Kathryne Ryan as follows:

For amounts accrued for a period of sixty-five (65) weeks to September 14, 1937, $1,170.00.
The balance due of $4,330.00 to be paid in monthly installments on the basis of $18.00 per week, commencing September 15, 1937 and continuing thereafter, subject to the terms of the Workmen’s Compensation Act of Illinois.

It is the Further Order of the Court that the total of said payments covering computation for both the surviving widow, Kathryne Ryan and the said three children shall be paid to said Kathryne Ryan until the further order of this court.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3, 1937 (Sess. Laws 1937, p. 83) and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from said appropriation from the Road Fund in the manner provided for in such Act.


text:
    (No. 2608
    Niles Center Mercantile Co., an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1937.

      Rehearing granted June 30, 1937.

      Opinion on rehearing filed September 15, 1937.

    Claimant, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

An opinion was filed in above matter on February 10th, 1937; rehearing was allowed, and upon rehearing, the following opinion is substituted for the original opinion herein:

Claimant filed its complaint herein on February 18th, 1935 and therein asks an award in the amount of $63.00 on account of an annual over-payment of franchise tax in the amount of $9.00 for the years 1926 to 1933, both inclusive, except the year 1928.

Section 10 of the Court of Claims Law provides that every claim against the State cognizable by the Court of Claims shall be forever barred unless the claim is filed1 with the secretary of the court within five years after the claim first accrues. The complaint herein was filed February 18th, 1935, and we are therefore limited to a consideration of the overpayments claimed to have been made by claimant subsequent to February 18th, 1930.

From the evidence in the record it appears that for the •years 1930, 1931, 1932 and 1933 claimant duly filed its annual report with the Secretary of State on the forms prepared by such Secretary; that each of such reports lists the amount of the authorized capital stock of the corporation at $50,-000.00; the total amount of capital stock issued at $32,000.00; and the value of the consideration actually received by the corporation for such stock at $32,000.00; that in each of such years (1930, 1931, 1932 and 1933) claimant was assessed and paid an annual franchise tax in the amount of $25.00.

It is admitted that on the basis of such annual reports, claimant should have been assessed on the total amount of capital stock issued, and required to pay an ammal franchise tax in the amount of $16.00, to wit, $9.00 less than it actually paid, and that the error was the result of inadvertence or mistake in the office of the Secretary of State.

It is a well-settled principle of law that a tax voluntarily paid, with a full knowledge of the facts, cannot be recovered back, in the absence of a statute authorizing such recovery. It is equally well established that where a tax is paid under a mistake of fact, such payment is considered as not having been voluntarily made, and may be recovered. Yates vs. Royal Insurance Co., 200 Ill. 202; Board of Education vs. Toennigs, 287 Ill. 469; School of Domestic Arts vs. Harding, 331 Ill. 330; Richardson Lubricating Co. vs. Kinney, 337 Ill. 122; Hettler Lumber Co. vs. Cook County, 336 Ill. 645; Cooper Kanaley & Co. vs. Gill, 363 Ill. 418; American Can Co. vs. Gill, 364 Ill. 254.

The difficulty arises in determining whether under the facts in the particular case, payment was made voluntarily, or whether it was made under a mistake of fact.

This claim arose prior to the adoption of “The Business Corporation Act” of this State, and therefore the rights of the claimant herein must be governed by the provisions of The General Corporation Act of this State, approved June 12th, 1919, in force July 1st, 1919 as amended.

Section 111 of such Act provides that the Secretary of State shall have power to hear and determine objections to any assessment within the time specified in the Act, and after hearing, to change or modify such assessment.

Section 112 of the same Act provides that between the first day of February, and the 15th day of June of each year, the Secretary of State shall mail a notice in writing to each corporation against which a tax is assessed, notifying such corporation of the amount of the tax assessed against it, and that objections, if any, to such assessment will be heard by the officer making such assessment, upon request by the corporation on a date not later than the 25th day of June, etc.

The record fails to show that any objection was made by claimant to the tax assessed against it, or that a hearing was requested by the claimant, in accordance with the provisions of Section 112. ,

The identical question here involved was presented to this court in the case of Handy Button Machine Co. vs. State, No. 2786, decided upon rehearing, at the present term of this court. In that case, after a consideration of the authorities on the question, we held as follows:

“The statute provided a remedy for the claimant but it failed to take advantage thereof. It paid the tax voluntarily, with a full knowledge of all the facts, and consequently under the' decisions above referred to, the payment must be considered as having been voluntarily made, and claimant therefore is not entitled to a refund.”

What we said in that case applies with equal force to the case at bar, and award must therefore be denied.

Award denied. Case dismissed.


text:
    (No. 2579
    Albert W. Young, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 15, 1937.

    A. W. Schimmel, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant has prepared a declaration at common law, and alleges damages in the sum of $10,000.00. If there is any liability at all, it is under the Workmen’s Compensation Act of this State.

The facts are that claimant was seriously injured on November 5,1932, while in the employ of the State of Illinois as a maintenance man on Illinois State Route 36. Claimant was engaged in scattering sand over tar which had been poured in the cracks and crevices by another employee of the respondent, on a concrete highway, when he was struck by an automobile driven by one Merritt Bush Kaylor, with such force and violence that it is claimed he was injured externally and internally. He sustained a compound fracture of a limb and broken ribs, and injuries to his hip and spinal region; also a rupture and other bruises, and contusions both externally and internally.

We have elected to treat the complaint in this case as a petition under the Workmen’s Compensation law. The claimant avers that he filed a suit at common law against Merritt Bush Kaylor in the Circuit Court of Pike County, Illinois, on March 15, 1934, to recover damages for wrongful injuries. The case was tried before a jury at the April Term thereof, 1934, and the jury found the defendant not guilty. It is averred that the claimant has received no money from the State of Illinois, or from Merritt Bush Kaylor since the date of the injury.

This action was not commenced in this court until January 17, 1935. Paragraph 6 of Section 6 of the Court of Claims Act provides as follows:

“Section 6. The Court of Claims shall have power:
“(6) To hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any employee of the State, such determination to be made in accordance with the rules prescribed in the Act commonly called the ‘Workmen’s Compensation Act,’ the Industrial Commission being hereby relieved of any duty relative thereto.”

We must, therefore, consider Section 24 of the Compensation Act, and this section provides that no proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident, “provided, that in any case, unless application for compensation is filed with the industrial commission within one year after the date of the injury or within one year after the date of the last payment of compensation, the right to file such application shall be barred. ’ ’

It is conceded that claimant received no compensation.

In the case of Circular Advertising Service, Inc. vs. Industrial Commission, 332 Ill. 156, our Supreme Court held:

“Where the record is barren, of any showing that any claim for compensation was made by the injured employee or that any compensation was paid or medical services furnished an award of compensation cannot be sustained, as section 24 of the Compensation Act requires such claim to be made within six months after the accident or after payments have ceased, before the proceeding for compensation; can be maintained.”

To the same effect is the case of The Chicago Board of Underwriters vs. The Industrial Commission, 332 Ill. 611.

In the case of The City of Rochelle vs. Industrial Commission, 332 Ill. 386, the court held:

“The making of a claim for compensation as provided in Section 24 of the compensation Act is jurisdictional and a condition precedent to the right to maintain proceedings under the Act, and whether a claim for compensation has been made is a question of fact, to be determined as any other similar question.”

Again, in Lewis vs. Industrial Commission, 357 Ill. 309, it was held that:

“The making of a claim for compensation within the statutory period is jurisdictional and a condition precedent to the right to maintain a proceeding under the Compensation Act.”

Under the authorities herein cited, this court has no jurisdiction in this cause, and an award is accordingly denied.


author: Mr. Chief Justice Hollerich

text:
    (No. 2576
    Sterling Brewers, Inc., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 15, 1937.
    Doyle, Sampson & Gtefin, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant is an Indiana corporation duly authorized to transact business in this State, and duly licensed as an importing distributor under the Illinois Liquor Control Act.

It has been stipulated by the parties hereto that the material allegations of fact contained in the complaint hérein are true and correct, and the case comes on for hearing upon the facts set forth in the complaint, and admitted to be true and correct as aforesaid.

From the complaint herein it appears that during the period from February 1st, 1934 to March 13th, 1934, claimant imported into this State twenty whole barrels; 1,719 half-barrels ; 1,023 fourth-barrels; 19,953 cases; and twelve half-cases of beer; that claimant computed the total of such imports to be 82,739 gallons, and paid to the Department of Finance a tax of two cents per gallon thereon, to-wit, $1,654.78; that as a matter of fact, the total of such imports was 80,000% gallons, on which the tax legally required to be paid was $1,602.01.

It further appears from the complaint herein that during the period aforementioned, claimant sold to certain named retailers in this State the aggregate amount of 10,646% gallons of beer, on which it paid the Department of Finance a tax of two cents per gallon, to-wit, the sum of $212.93; that each such sale was made under the mistaken assumption that the claimant was required to pay the tax in the first instance, and add the same to its charge for such beer; that thereafter the Liquor Control Commission and the Department of Finance, or one of them, determined that the tax in question should be imposed upon and paid by the retailers; that thereupon the Liquor Control Commission, or the Department of Finance, again collected the amount of the tax required to be paid on such beer from such retailers, whereby such tax was twice paid to the respondent.

It further appears from said complaint that the aforementioned period was a period of uncertainty and confusion in the administration of the Illinois Liquor Control Law, and the aforementioned payments were made by claimant without the benefit of administrative rulings and orders such as were subsequently promulgated by said Liquor Control Commission, and said Department of Finance, and were made by the claimant in fear of the penalties provided in the Illinois Liquor Control Law for the failure to comply with the requirements thereof.

Claimant asks for a refund of the amount overpaid by it as aforesaid, to-wit, $52.77, as well as the amount which it claims was erroneously paid by it as aforesaid, to-wit, $212.93, making a total amount of $265.70.

The rule is well established in this State that where an illegal or excessive tax is paid voluntarily, with full knowledge of all the facts, the same cannot be recovered. It is equally well established that where such tax is paid under a mistake of fact, it is not considered as having been paid voluntarily ; also that where such tax is paid under a mistake of law, it may not be recovered. Yates vs. Royal Insurance Co., 200 Ill. 202; Board of Education vs. Toennigs, 287 Ill. 469; School of Domestic Arts vs. Harding, 331 Ill. 330; Richardson Lubricating Co. vs. Kinney, 337 Ill. 122; Hettler Lumber Co. vs. Cook County, 336 Ill. 645; Cooper Kanaley & Co. vs. Gill, 363 Ill. 418; American Can Co. vs. Gill, 364 Ill. 254.

In the case of Western Dairy Co. vs. State, No. 2916, decided at the May 1937 term of this court, the question involved was whether a corporation which had paid an excessive franchise tax as the result of its own mistake or error was entitled to recover the amount of the excess so paid. After a consideration of the authorities upon the subject, we there held that where an illegal or excessive tax is imposed by reason of the negligence or inadvertence of the taxpayer and thereafter paid by him, such payment is not made under a mistake of fact and cannot be recovered.

The item of $52.77 was paid as the result of an error on the part of the claimant in computing the gallonage upon which the tax should be paid. The facts with reference to such gallonage were peculiarly within the knowledge of the claimant. There was no error on the part of the respondent. The tax was paid voluntarily and with a full knowledge, or means of knowledge, of all the facts, and solely as the result of an error on the part of the claimant. Under such circumstances, and under the authorities above set forth, the claimant is not entitled to a refund of the excess tax so paid by it as aforesaid.

The' payment of the item of $212.93 as above set forth, presents a different question. The tax there involved arose under the provisions of “The Malt and Vinous Beverage Act,” of 1933. Sections 12, 13 and 15 of such Act provided as follows:

Section 12 — “A tax is imposed upon the privilege of engaging in business as a manufacturer or as an importing distributor at the rate of two cents per gallon on all malt and vinous beverages sold by such manufacturer or importing distributor in the course of such business.” * * *
Section 13 — “Every manufacturer and importing distributor shall between the first and fifteenth day of the next calendar month after the taking effect of this Act and of each calendar month thereafter, make return under oath to the Department of Finance of all malt and vinous beverages sold by him in the course of such business during the preceding calendar month and shall at the same time pay to the department the tax herein imposed."
Section 15 — “The Department of Finance may make such reasonable rules and regulations as may be deemed necessary for the administration of the duties vested in it by the provisions of this Act.”

Under the aforementioned provisions, the tax in question was required to be paid by the claimant and not by the retailer. The Department of Finance was authorized to make reasonable rules and regulations for the administration of the duties vested in it, but had no authority to make any rules or regulations which were inconsistent with the provisions of the statute; consequently, any rules or regulations adopted by the Department, where the tax in question was required to be paid by the retailer instead of the distributor, were unauthorized and void. The mere fact that the tax was twice paid to the State, does not give the claimant a right of recovery, as the tax was required to be paid by it. If anyone was entitled to a refund on account of the double payment, it was the retailer who was not legally required to pay the tax.

Under the law then in force, the claimant was required to pay the tax, and consequently is not entitled to a refund.

Award denied. Case dismissed.


author: Mr. Chief Justice Hollerich Mb. Chief Justice Hollebich

text:
    (No. 2246
    George Franklin Garbutt, Administrator of the Estate of Wesley Garbutt, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1935.

      Rehearing granted February 12, 1935.

      Opinion on rehearing filed September 15, 1937.

    Winston, Steawn & Shaw, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On August 10th, 1933 Mr. A. S. Dougherty, maintenance patrolman on Section 133, S. B. I. Route 172, together with his helper, was cutting and burning weeds along the right-of-way of said highway about two miles north of Libertyville in Lake County. The highway at that point extended in a northerly and southerly direction and consisted of a 20-foot concrete roadway with dirt shoulders. In some manner the fire was communicated to a tree situated sixteen feet west of the west side of the concrete roadway. This tree was a spreading oak tree about forty feet in height and thirty-seven inches in diameter at the base and leaned toward the roadway. It was a bee tree which was decayed at the bottom, and was hollow for some distance up the trunk. The hole in which the bees entered was about ten feet above the base of the tree.

Mr. Dougherty and his helper tried to put out the fire with a jug of water, but without result. They remained in the vicinity until about four-thirty or five o’clock p. m., but there were so many bees there that it was difficult to do anything further at that time. Both men saw the tree again the next day and it was still burning. The next day (Saturday, August 12th) the tree was still burning, and the helper poured two eight-gallon cans of wmter into it, but it still continued to smoulder. On August 17th, 1933 about five o’clock p. m. a windstorm came up and blew fiercely for a short time and broke the tree off about nine feet from the ground, just at the point where the bees had entered.

Just as the tree was about to fall, claimant’s intestate, Wesley Garbutt, was driving along S. B. I. Route 172 in a southerly direction in his Ford car with the top down, and just as he was opposite the tree, it toppled directly across the pavement and onto the car in which he was riding. The tree rebounded, and the rebound released the car which thereafter continued down the road 100 or 200 feet and ran into a ditch, throwing Mr. Garbutt out as it climbed the embankment.

Some people who were approaching from the opposite direction stopped and picked Garbutt up and took him to the hospital in Libertyville. He was unconscious and bleeding profusely and died the next day as the result of the injuries received when he was struck by the tree.

Said decedent left him surviving his father, his mother, a brother and a sister, as his only heirs.

The father, George Franklin Garbutt, was appointed administrator of the estate and filed his claim herein on September 14th, 1933 to recover the damages claimed to have been sustained by the next of kin by reason of the death of said decedent.

The Attorney General has moved to dismiss the case for the reason that the doctrine of respondeat superior does not apply to the State in the exercise of its governmental functions and that therefore the State is not liable for the negligence of its servants and agents, if any — in this case.

The claimant admits that there is no liability on the part of the State for the negligence of its servants and agents in the exercise of its governmental functions, but claims that an award should be made to the claimant on the grounds of equity and good conscience.

The same contention was made by the claimant in the case of George Ira Curry vs. State, No. 2412, decided at the present term of this court. In that case we said:—

“We are aware of the fact that during a certain period in the history of this court, awards were made in cases where the State was not legally liable, and which were sought to be justified on the grounds of what was known as the doctrine of equity and good conscience. However, the court as now constituted, has not seen fit to follow the decisions just referred to, but has followed the earlier decisions of the court to the effect that the provisions of Section 6 of the Court of Claims Act, and particularly paragraph four (4) thereof, which provides that this court shall have power to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State as a sovereign commonwealth should, in equity and good conscience, discharge and pay; — does not increase or enlarge the liability of the State, but merely provides a forum wherein claims against the State may be adjudicated.

“This question was exhaustively considered in the case of Crabtree vs. State, 7 C. C. R. 207, in which the authorities on the question from the time of the creation of the court down to the date of the hearing, were analyzed and considered. After a consideration of the authorities on the question, we reached the following conclusion:

“We conclude, therefore, that Section four (4) of Paragraph six (6) of the Court of Claims Act, which provides as follows, to-wit: The Court of Claims shall have power: ‘to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State as a sovereign commonwealth, should, in equity and good conscience, discharge and pay’; merely defined the jurisdiction of the court, and does not create a new liability against the State, nor increase or enlarge any existing liability; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable; that this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the court; that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.
“The claimant having failed to bring himself within the provisions of the law entitling him to an award, there is nothing this court can do but deny the claim.”

What we said in the Curry case applies with equal force to this case. The legislature has not enacted any law making the State liable for the negligence of its servants and agents in connection with the maintenance of its hard-surfaced roads, and there being no legal liability on the part of the State, this court has no jurisdiction to enter an award.

The death of claimant’s intestate under the circumstances set forth in the complaint is very regrettable, and the claim filed herein appeals very strongly to the sympathies of the court, but as stated in the case of Morrissey vs. State, 2 C. C. R. 254, we do not make the law and can only interpret it as we find it, and much as we would like to enter an award for the claimant in this case, we must reject the claim.

It is therefore ordered that an award be denied and the case dismissed.

Additional Opinion on Reheabing.

Mb. Chief Justice Hollebich

delivered the opinion of the court:

Rehearing having been allowed on the petition of the claimant, he urges that the facts in the record show that the servants and agents of the respondent were guilty of gross and wanton negligence; that the plaintiff’s intestate was free from contributory negligence; and that under such circumstances, an exception exists to the general rule that the State is not liable for the acts of its servants and agents under the doctrine of respondeat superior.

Even if it be conceded that the facts in the record do show that the servants and agents of the respondent were guilty of gross and wanton negligence, and that the claimant’s intestate was free from contributory negligence, still under the repeated decisions of the court, the claimant is not entitled ■to an award.

As stated in the original opinion, during a certain period in the history of this court, awards were made in certain cases in which there was no legal liability on the part of the State. In the earlier cases so decided, the facts appealed very strongly to the sympathies of the court, and the awards there made were attempted to be justified on the grounds of ‘ ‘ equity and good conscience.”

Thereafter the court apparently recognized the dangerous tendency of such decisions, and the extent to which they were being carried, and gradually began to get back to the earlier decisions of the court, to the effect that this court has no authority to allow an award in any case unless there would be a legal liability on the part of the State if the State were suable.

In the course of such transition, awards were allowed in certain cases where the claimant was free from contributory negligence, and the servants and agents of the respondent were guilty of gross and wanton negligence, and such awards were attempted to be justified on the ground that such cases constituted an exception to the general rule that the State is not liable for the acts of its servants and agents under the doctrine of respondeat superior.

If the State is not liable for the ordinary negligence of its servants and agents, there is no principle of law under which it can be held liable for the gross or wanton negligence of such servants and agents, in the absence of a statute making it so liable. The purported exception has no basis in law, and is no longer recognized by this court.

The rule as laid down in the case of Crabtree vs. State, 7 C. C. R. 207, and as set forth in the original opinion herein has been followed in nineteen cases reported in the last published volume of the reports of this court (Volume 8), as well as in many more cases decided since the publication of such volume, and must now be considered as the well-established rule of this court.

For the reasons above set forth, award must be denied.

Award denied. Case dismissed.


text:
    (No. 2909
    McCampbell & Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1937.

    Claimant, pro se.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeks an award of Twenty-one and 38/100 ($21.38) Dollars, representing that respondent had purchased a quantity of denim for the use of the St. Charles School for Boys, on August 1,1934. That claimant submitted an invoice which did not include the Processing Tax of Twenty-one and 38/100 ($21.38) Dollars which was then being assessed on sales, but which was not included in this instance because of the representation that the St. Charles School for Boys was a charitable institution, and that the Federal Government would refund to the processor the tax on the goods purchased. The Federal authorities ruled that the St. Charles School for Boys was not a charitable institution and denied the refund. Petitioner’s claim was filed June 1, 1936 after the Federal Commissioner had notified them that their claim for credit on tax paid had been rejected.

The tax in question was assessed under the provisions of the Federal Agricultural Adjustment Act.

The Attorney General moves to dismiss the claim on the ground that claimant seeks an award predicated upon liability of the State for a tax for which the State is not liable.

The Agricultural Adjustment Act, under which the tax was levied was held unconstitutional in the case of U. S. vs. Butler, 287 U. S. 1.

“Where the processor has not passed the tax on to the consumer he may, under Sections 901 to 917 of Title VII of the Revenue Act of 1936, recover the tax from the Federal government, and if the Commissioner refuses a refund under the above sections, the processor may prosecute his claim in the United States Court of Claims.”
Anniston Mfg. Co. vs. Davis. (Opinion rendered by U. S. Supreme Court May 17, 1937.)

In the instant case the tax was not passed on to the consumer and claimant apparently has an adequate remedy in presenting its claim to the Federal Government.

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


text:
    (No. 2763
    Twin City Barge and Gravel Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, October 12, 1937.

    Leigh M. Kagy, Earl H. Isensee and George A. French, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This action was commenced by the Twin City Barge and Gravel Company, a corporation, on December 6, 1935. On the 22nd day of September, 1936, James A. Campbell was appointed Receiver by the District Court of Hennepin County, Minnesota, the claimant being a Minnesota corporation.

It is charged that from June, 1932 until July, 1933, the claimant was engaged in hydraulic dredging and excavation work in the channel of the Illinois River in the State of Illinois, near the City of Joliet, in what was generally known as the “Dresden Pool,” as a subcontractor, the principal contractor being Arundel Corporation, which held a contract with the United States Government for the improvement in question. In the performance of their work of hydraulic dredging and excavation, they bought 134,429 gallons of gasoline. Of this amount, 1,219 was used by their truck and by the cars of employees from February 1 to July 7, 1933, inclusive, leaving a total of 133,210 gallons of gasoline. They were charged 3c tax per gallon on said 133,210 gallons of gasoline, or $3,996.30. Of this amount, refunds have been collected on this job for gas that was paid for, in the sum of $3,056.96, leaving an unearned Motor Fuel Tax not refunded in the sum of $939.36, and we are asked to make an award in the sum of $939.36, this representing the amount of Motor Fuel Tax that they had been charged for the gasoline which was not used upon the road.

It is claimed that extra costs arose on the dredging and excavation work due to the nature of the work and to working conditions not contemplated by the general contract between the Government and the original contractor, The Arundel Corporation, and the original contractor refused to pay the claimant the sums due under the subcontract, and the claimant was compelled to resort to litigation to collect the money so due to it, and because of this delay and the pendency of the litigation, the claimant was unable to pay the distributor for the gasoline so used by it before the expiration of six months after the date on which the motor fuel was used by the claimant, as aforesaid. It is further claimed that the claimant was definitely advised by the then officials of the State of Illinois in charge of the collection and refund of motor fuel tax that no claim for refund would or could be entertained prior to the payment by the claimant to the distributor. It is also charged that this claim was presented to the Division of Motor Fuel Tax of the Department of Finance, and on or about the 23rd day of October, 1934, this Department refused the application of the claimant for reimbursement for said motor fuel so used for the reason that the Department was without administrative authority to grant the request under the provisions of the statute.

The Attorney General has made a motion to dismiss this suit, and as we view the law, this motion must be sustained.

Paragraph 91 of Chapter 95a, Illinois Revised Statutes for 1935, makes it very plain and clear that any person who loses motor fuel through any cause or uses motor fuel (upon which he has paid the amount required to be collected under this Act) for any purpose other than operating a motor vehicle upon the public highways of this State, shall be reimbursed and repaid the amount so paid, but the claims for such reimbursement shall be made to the Department of Finance, duly verified by the affidavit of the claimant, or one of the principal officers, if the claimant is a corporation, upon forms prescribed by the Department, and the claim should state such facts relating to the purchase, importation, manufacture or production of the motor fuel by the claimant as the Department may deem necessary, and the time when, and the circumstances of its loss or the specific purpose for which it was used, and claims for reimbursement must be filed not later than six months after the date on which the motor fuel was lost or used by the claimant. The statute directs the manner in which the reimbursement should be made.

Claimant did not present a proper claim within a six months’ period fixed by the statute, but attempts to excuse that delay on the grounds that it had not been paid by the principal contractor. The statute does not recognize any such exceptions. It is not contended that the money was paid under protest.

We have held that:

“Where a statute provides a remedy and fixes the time within which the same may be availed of, the Court of Claims has no jurisdiction to extend such time.” Silver-Burdett <& Oo. vs. State, 8 C. C. R. 539.

We hold that this case is in point.

The claimant, not having justified its delay in seeking the refund, the motion of the Attorney General must be sustained and cause dismissed.


text:
    (No. 2956
    Jane B. Shuffleton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1937.

    Claimant, pro se.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

In March, 1936 one Margaret Bayne, who was then a prisoner at the Illinois State Penitentiary at Joliet was paroled to the claimant Jane B. Shuffleton. On May 18th, 1936 said Margaret Bayne, while working in the home of the claimant, was severely burned while making a fire in a hot water heater, and it became necessary to take her to a hospital for treatment. She remained in the hospital about six weeks, and during that time claimant expended the sum of $799.21 for necessary medical attention, hospitalization and nurses ’ fees, and asks for an award in that amount.

The Attorney General contends that there is no liability on the part of the State under the facts set forth in the complaint, and has moved to dismiss the claim.

We have repeatedly held that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable. Crabtree vs. State, 7 C. C. R. 207; Kramer vs. State, 8 C. C. R. 31; Shumway vs. State, 8 C. C. R. 43; Titone vs. State, decided at the January, 1937 term of this court.

Our attention has not been called to any statute which makes the State liable for medical, surgical, hospital or nursing services for the inmate of any State penal institution while on parole. On the contrary, Section Seven (7) of the Parole Act of this State — Illinois State Bar Association Statutes, 1935, Chapter 38, Paragraph 801 — indicates a legislative intention that prisoners while on parole should not be an expense to the State. Said Section Seven (7) provides in part as follows:

“No prisoner or ward shall he released from either the penitentiary or reformatory for women or such other institution herein in this Act mentioned until the Department of Public Welfare shall have made arrangements or shall have satisfactory evidence that arrangements have been made for his or her honorable and useful employment while upon parole in some suitable occupation and also for a proper and suitable home free from criminal influences and without expense to the State.”

Even if Margaret Bayne had been injured while still an inmate of the penitentiary, she would not have been entitled to recover damages from the State for such injuries, under the repeated decisions of this court. Burghardt vs. State, 5 C. C. R. 221; Pelka vs. State, 6 C. C. R. 390; Sturrock vs. State, 7 C. C. R. 157; Parks vs. State, 8 C. C. R. 535; Shilkitis vs. State, No. 2355, decided at the January term, 1937.

Under the facts set forth in the complaint, we have no authority to allow an award, and the motion of the Attorney General must be sustained.

Motion to dismiss allowed. Case dismissed.


author: Me. Justice Yantis

text:
    (No. 2969
    Olga Barica, as Administratrix of the Estate of Evelyn Barica, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1937.

    Benjamin S. Adamowski, H. Irving Bipstra and William F. Copper, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

On the 10th day of September, A. D. 1935, according to the amended complaint filed herein, Evelyn Barica was riding as a guest in a Ford delivery truck, owned by Joseph Handzel and driven at the time by the latter’s son Edward Handzel. That at or near the intersection of First Avenue and North Avenue, in Leyden Township, Cook County, Illinois, the auto in which said Evelyn Barica was riding was struck by an automobile bus owned by the St. Charles School for Boys, and then and there driven by one Clarence Johnson, an employee of said school; said St. Charles School for Boys, as alleged by claimant, having been created and established by an Act of the General Assembly of the State of Illinois, in force July 1, 1901; that as a direct result of such collision Evelyn Barica sustained bodily injuries from which she died on the 10th day of September, A. D. 1935. Deceased left surviving, her father Andrew Barica, who also is now deceased, her mother, Olga Barica, who as Administratrix of the Estate of Evelyn Barica, files this claim, and two sisters and a brother as her only next of kin. Claimant seeks an award of Ten Thousand ($10,000.00) Dollars.

The Attorney General has filed a motion on behalf of respondent to dismiss the claim, for the reason that same is predicated solely on the alleged liability of respondent for an alleged negligent act of one of its employees, for which the State is not legally liable.

The c.ourt has been called upon repeatedly to pass upon claims of a similar nature. The opinion of the court has been frequently expressed as follows:

“The State as a sovereign power, is not liable for damages, injuries or death resulting from the negligence of its officers or employees. The doctrine of Respondeat Superior does not apply to the State.”

The views of the court are expressed at length in Crabtree vs. State, 7 C. C. R. 207 and Childress vs. State, 8 C. C. R. 223.

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


text:
    (No. 3110
    L. H. Grothe, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1937.
    Don D. Richmond, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed his complaint herein on July 6th, 1937, and alleges therein as follows:

For approximately six years prior to and on the 1st day of March, A. D. 1936, he was engaged in conducting a gasoline filling station, garage and general sales room in Tolono, Illinois, adjacent to U. S. Route No. 45. On March 1st, 1936 the Division of Highways of the Department of Public Works and Buildings of the respondent, blocked off and barred said highway from a point 300 feet north of claimant’s place of business to a point 1,000 feet south thereof, and re-routed over other streets, the traffic which otherwise would have traveled directly in front of claimant’s place of business. Such conditions continued until November 1st, 1936, when said U. S. Route No. 45 was again opened to traffic.

Claimant further alleges that by reason of the blocking of said highway and the re-routing of traffic over other streets as aforesaid, he lost considerable business, his profits were reduced, and he thereby sustained damages in the amount of $448.86, for which amount he asks an award.

It is not contended that any of claimant’s property was taken, or that any of his property was damaged, except as to the loss of anticipated profits as above set forth.

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

If claimant has any right of recovery it must be by virtue of the constitutional provision to the effect that private property shall not be taken or damaged for public use without just compensation.

The question here involved has been considered by this court in a number of cases. In the case of Grassle vs. State, 8 C. C. R. 151 we held that:

“Inconvenience, expense, or loss of business necessarily occasioned to the owners of abutting property during the progress of the work by the construction of a public improvement, do not constitute damage to property not taken, within the meaning of the Constitution, but merely a burden incidentally imposed upon private property adjacent to a public work, and without which such improvements can seldom be made and therefore give no cause of action against a municipality therefor.”

The rule laid down in the Grassle case finds support in the following cases, to wit: Stein, et al vs. State, 8 C. C. R. 251; Glenbard Golf Club, Inc. vs. State, 8 C. C. R. 651; James Morlock vs. State, No. 2072, decided at the September, 1935 term of this court.

This is in accordance with repeated decisions of our Supreme Court. Osgood vs. City of Chicago, 154 Ill. 194; Lefkovitz vs. City of Chicago, 238 Ill. 223; Chicago Flour Co. vs. City of Chicago, 243 Ill. 268; Peck vs. Chicago Railways Co., 270 Ill. 34; City of Winchester vs. Ring, 312 Ill. 552.

We have repeatedly held that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable. Crabtree vs. State, 7 C. C. R. 207; Kramer vs. State, 8 C. C. R. 31; Shumway vs. State, 8 C. C. R. 43; Titone vs. State, decided at the January term, 1937, of this court.

Therefore we have no authority to allow an award in this case, and the motion of the Attorney General must be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 3101
    Frank A. Ulie and John A. Moreno, Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1937.

    Herman I. Weiss, for claimant.

      Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimants, operating as a co-partnership under the firm name of MIDWEST LIQUOR COMPANY, located at 11 South Kedzie Avenue, Chicago, Illinois, applied, on May 13, 1936, for a license as a Distributor of Alcoholic Liquors, and for another License as a Retailer of Alcoholic Liquors, both Licenses to be operative from May 1, 1936 to July 1, 1937. They paid One Hundred Sixteen and 67/100 ($116.67) Dollars for the Distributor’s License, and Fifty-eight and 33/100 ($58.33) Dollars for the Retailer’s License. On June 30, 1936 claimants sold their liquor business and new licenses were applied for and issued to their successors. Claimants now seek a refund of the license fees covering the period from July 1,1936 to July 1,1937, in the sum of One Hundred Fifty ($150.00) Dollars. The fees thus paid by claimants were under the optional provisions of the Illinois Liquor Control Act which permitted claimants to take out such license for the short term of the unexpired year or for the longer period extending to the end of the next fiscal year, which latter they elected to do. Section 146, Chapter 43 of the Illinois State Bar Statutes, 1935 provide certain limited cases in which a refund of the unearned portion of a license fee is authorized. This application does not fall within either of such provisions. This question has recently been before the court in the following cases:

Block vs. State of Ill., No. 2971. Opinion filed by Court of Claims, May term, 1937.
Kellner vs. State of Ill., No. 2546. Opinion filed by Court of Claims, May term, 1937.
S. A. Beals vs. State of Ill., No. 3020. Opinion filed by Court of Claims, May term, 1937.
Yott vs. State of Ill., No. 3035. Opinion filed by Court of Claims, September term, 1937.

In the latter case attention is called to the fact that the legislature of Illinois, under the provisions of House Bill No. 932, appearing in the Session Laws of 1937, Page 95, makes provision for adjustment in a matter of this character, by the Director of Finance. Claimant’s attention is directed to said statute, and the application herein pending is hereby denied.

The motion of the Attorney General to dismiss the complaint is allowed.


text:
    (No. 3100
    Harry V. Youngblut, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, October 12, 1937.

    Frank B. Eaglbton, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeks an award of Forty-five ($45.00) Dollars. He alleges that on December 11, 1936 a State truck operated by employees in the Division of Highways, in a reckless, careless and improper manner, collided with claimant’s car where same was parked in the City of Freeport, resulting in damages to the car, to the amount of Forty-five ($45.00) Dollars. Claimant represents that the drivers of the State-owned truck are not financially responsible, own no property above their exemption rights, and that claimant is unable to collect either from property, wages or salary; further, that application for adjustment has heretofore been made with the Division of Highways, of the Department of Public Works, and has been informed by the then Director of such Department that he was without authority to settle such claim.

The Attorney General has filed a motion to dismiss on the ground that claimant seeks an award predicated upon the alleged negligent operation of a State truck by a State employee, for which there is no legal liability.

The court has been frequently called upon to consider claims of this character. The ruling has been repeatedly announced that “in the construction and maintenance of public highways the State exercises a governmental function and is not liable for damages to property or injuries to persons caused by the negligence of its agents, officers or employees. The doctrine of Respondeat Superior does not apply to the State.” Johnson vs. State, 8 C. C. R. 67; Trompeter vs. State, 8 C. C. R. 141.

In the absence of any statute creating legal liability for such damage, we are of the opinion that the motion of respondent should be allowed. The motion of the Attorney General to dismiss the complaint is allowed and the cause is dismissed.


text:
    (No. 3091
    Arthur B. Phillips, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1937.

    Arlo E. Bane, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant alleges in his complaint that he paid the State $50.00 as the license fee for a 1937 Dodge truck; that the license plates which he received have never been used, that the seal enclosing the identification card has never been broken; that claimant sold said Dodge truck and did not operate the same since the issuance of said license to him; that he is ready, willing and able to return said license plates; and asks a refund of the license fee so paid by him as aforesaid.

The Attorney General has entered a motion to dismiss the claim on the following grounds:

1. That there is no statute authorizing the refund of the license fee so paid by the claimant as aforesaid.

2. That payment of such license fee was not made under protest, nor under a mistake of fact.

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

It is not contended that the license fee was paid under duress or under a mistake of fact, and the rule is well settled that where a tax is paid voluntarily and without duress or compulsion, and with a full knowledge of the facts, it cannot be recovered back, in the absence of a statute authorizing such recovery. Yates vs. Royal Insurance Co., 200 Ill. 202; Board of Education vs. Toennigs, 287 Ill. 469; Richardson Lubricating Co. vs. Kinney, 337 Ill. 122; American Can Co. vs. Gill, 364 Ill. 254.

The jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State, either at law or in equity, if the State were suable. Crabtree vs. State, 7 C. C. R 207; Kramer vs. State, 8 C. C. R 31; Shumway vs. State, 8 C. C. R. 43; Titone vs. State, No. 2475, decided at the January term, 1937, of this court.

Under the facts set forth in the complaint, claimant could not maintain an action against the State if it were suable, and therefore we have no authority to allow an award. The motion of the Attorney General must be sustained.

Motion to dismiss allowed. Case dismissed.