text:
    Western Electric Company, Incorporated, 1370; The Borden Company, 1371; Borden’s Farm Products Co. of Illinois, 1372, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1929.

      Rehearing denied January 15, 1930.

      Modified opinion filed September 10, 1930.

    Cutting, Moore & Sidley, for claimants.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

These cases are claims for the refund of franchise taxes paid by claimants. The amount claimed by the Western Electric Company is $7,175.72, by the Borden Company $3,049.85, and by Borden’s Farm Products Company $1,909.90. The Attorney General has filed a demurrer to the declaration in each case, and, as the same questions are involved in all of them, they will be consolidated and decided together.

Claimants are foreign corporations licensed to do business in Illinois. Each company filed the returns with the Secretary of State required by law. The Secretary thereupon assessed a • franchise tax against each of claimants. Upon the assessment of the tax each claimant protested to the secretary that the tax so assessed was illegal and void for the reason that the law under which it was assessed was unconstitutional. To prevent the Secretary from enforcing the penalties provided by the law for the non-payment of the taxes each claimant paid the tax assessed against it. Within thirty days after the tax was paid each of the claimants filed a suit in the Circuit Court of Sangamon County to restrain the Secretary from paying the tax paid by it into the State Treasury and for an order directing him to refund or repay the tax to the complainant. The court granted a temporary injunction as to a portion of the tax in each case and, on a final hearing, ordered the Secretary to repay such portion to the complainant, but refused to order the balance of the tax paid refunded. From this decree no appeal was taken, or writ of error sued out to review it.

It is fundamental in our law that a judgment or decree is binding upon all parties to the action so long as it stands unreversed. The suits were based upon the allegation that the statute under which the taxes were assessed was unconstitutional, and claimants could have had their cases reviewed by the Supreme Court if they were not satisfied with the decree of the circuit court. They elected not to do so, for what reason does not appear and is not material. This court has no appellate jurisdiction to review the judgments and decrees of the regularly constituted courts of the State, and it will not adjudicate upon a case where the claimant has an adequate remedy in the courts of general jurisdiction. (Moline Plow Co. v. State, 5 Ct. Cl. 277.) The demurrer is sustained, the claims denied, and the cases dismissed.

On May 9, 1929, upon petition for rehearing the following additional opinion was filed:

Claimants filed a petition for a rehearing in these cases, and the court relaxed the rules and permitted them to support their petition by oral and written argument. We have again carefully considered the record in the cases and the argument in support of the rehearing and file this as supplemental to the opinion heretofore filed.

The General Incorporation Act in force at the time these taxes were paid required the Secretary of State to notify each corporation, not later than May 15th, of the amount of such tax assessed against it, and the declarations allege the required notice was given in each. case. The Act also provided the taxes did not become delinquent and that penalties could not be added until after July 31st. The Act further provided that if the tax was not paid on or before July 31st the Secretary of State might issue a warrant for their collection, and gave him the right to revoke the certificate of authority of a foreign corporation failing to pay its tax on or before that date.

The declarations charge the Secretary of State demanded payment of the taxes on the assumption that they were lawful franchise taxes; and that the claimants protested to him against the payment of the taxes on the ground that the statute was not valid and constitutional and that the taxes, and each and every part thereof, were not authorized by law and that they were not required to pay them. The declarations also allege the Secretary of State threatened, if the taxes were not paid, to assess the penalties provided by law and revoke the authority of claimants to transact business in Illinois ; and that the taxes were paid under protest and duress as shown by the letters of claimants attached to the declarations and made part thereof. The letters show the payments were made “to avoid penalties and controversies and litigation for failure so to do and without prejudice to the right of the company to seek to recover later the whole or any part thereof. The grounds of this protest are that the provisions of the Act entitled an Act in relation to Corporations for Pecuniary Profit in force July, 1919, and as amended by an Act in force July, 1921, and as further amended by an Act approved by the Governor May 3, 1923, impose an unconstitutional, unjust and unlawful tax upon this company in violation of its rights under the Constitution of the United States and the Constitution of the State of Illinois.”

Claimants paid these taxes, as they say, “to avoid penalties and controversies and litigation for failure so to do.” Payment of money to avoid penalties and the expenses of litigation will be deemed a voluntary payment and cannot be recovered. (21 R. C. L., p. 151, sec. 176; People v. Bandy, 239 Ill. App. 273.)

The fact that the taxes were illegal does not, of itself, give claimants the right to recover' them. When claimants paid these taxes they knew the law under which they were assessed was unconstitutional, and protested against paying them on that ground. “That a tax voluntarily paid cannot be recovered back the authorities were generally agreed, and it is immaterial ill such a case that the tax has been illegally laid or even that the law under which it was laid was unconstitutional. The principle is an ancient one in the common law and is of general application. Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as a reason why the State should furnish him with legal remedies to recover it back.” (Cooley on Taxation, 2nd Ed., p. 809; Board of Education v. Toennings, 297 Ill. 469.) Proof that one party is under no legal obligation to pay the money and that the other has no right to receive it is of no consequence unless the payment was compulsory, in the sense of depriving the one making the payment of the exercise of his free will. (Ill. Glass Co. v. Chicago Tel. Co., 234 Ill. 535; School of Domestic Arts v. Harding, 331 Ill. 330.)

It is clear from these well settled principles of law claimants are not entitled to recover these taxes unless they were paid under duress, for it is axiomatic that the tax must not only have.been paid under protest but also under duress. A party who has paid a tax voluntarily, under a claim of right, shall not afterwards recover back the money, although he protested at the time against his liability. But it is otherwise when a party is compelled, by duress of his person or goods, to pay money for which he is not liable. When one is called upon, peremptorily, to pay a tax for which he is not liable and can save himself and his property in no other way than by paying the illegal demand, he may give notice that he so pays it by duress, and not voluntarily, and by showing he is not liable to recover it back. (Conkling v. City of Springfield, 132 Ill. 420.) To constitute duress the danger must not only exist, but must be shown to have actually operated upon the mind, and to have constituted the controlling motive for the performance of the act sought to be avoided. (Yates v. Royal Ins. Co., 200 Ill. 202.) To render a payment compulsory such pressure must be brought to bear upon the person or property, and the compulsion must furnish the motive for the payment sought to be avoided. (School of Domestic Arts v. Harding, supra.) Tested by these rules were the taxes paid under duress? We do not think so. Claimants were notified of the amount of taxes due not later than May 15th. The taxes were not payable until the first day of July following and could not be declared delinquent until August the first thereafter. No warrant for their collection was in the hands of the sheriff and none could be issued until August 1st. The Secretary of State had no right or power to cancel or revoke their certificates of authority, to do business in Illinois, or to add any penalties to the taxes, or to take any steps-to collect them, or in any way to interfere with claimants in the conduct of their business because or on account of their failure to pay the taxes until August first. Claimants were' in no immediate danger of suffering any injury to their property or right to do business in the State. The law gave them until the end of July to determine what action they desired to take. They knew the Secretary of State believed the taxes legal: they believed them to be illegal — that the law under which they were assessed was unconstitutional. No fraud or deception was practiced upon them by the Secretary of State. With the knowledge of these facts claimants paid the taxes. The law under which the taxes were assessed was unconstitutional, and the Secretary of State had no power under it to revoke the certificates of authority issued to claimants authorizing them to do business in this State. Neither did he have the right to assess any penalties against claimants for not paying the taxes or to issue a warrant to any sheriff directing him to sell property of claimants to pay the taxes. The taxes were void and claimants could have maintained a bill in equity against the Secretary of State to restrain him from collecting them. It has been many times held by the Supreme Court of this State that where a tax or assessment has been levied or imposed where there was no law authorizing it to be levied courts of equity will interfere and by injunction prevent the collection of such tax, and the tax payer is not required to exhaust his legal remedies before he may apply to equity for relief. (Drainage Comrs. v. Kinney, 233 Ill. 67; Sanitary Dist. v. Board of Review, 258 Ill. 316; St. Louis Bridge Co. v. Eisele, 263 Ill. 50; Baltica Ins. Co. v. Carr, 330 Ill. 608.) By invoking the aid of a court of equity claimants could have been relieved from the payment of any of the taxes and from the danger of having their certificates of authority to do business in Illinois revoked. They had ample time to do that after receiving the notices of the amounts of the taxes claimed. Their payment of the taxes under these circumstances was not compulsory. “The rule allowing a person to recover money which he has paid, on the ground that it was paid under compulsion, is intended for the relief only of those who are entrapped by sudden pressure into making such payments, and who have no other means of escaping an existing or iminent infringement of their rights of person or property. Therefore where a person has time and opportunity to relieve himself from his predicament without making such payment by resorting to ordinary legal methods, but nevertheless pays the money, the payment will be deemed voluntary, and he can not recover it.” (21 R. C. L., p. 151, Sec. 176.) In Illinois Merchants Trust Co. v. Harvey, 335 Ill. 284, on page 292, our Supreme Court says: “If he (the payer of an illegal demand) may avoid the payment of such demand by resorting to a remedy in equity but does not avail himself of such remedy the payment is not compulsory even though pressure for payment is re-enforced by a threat to commit injury.”

The declarations all allege the Secretary of State, between February 1st, and May 15th of each year, gave notice of the amount of taxes due from each claimant for the year beginning the first day of July following. As the taxes were not delinquent until August 1st claimants had 75 days within which to invoke the aid of a court of equity to avoid the payment of the taxes claimed. This was ample time in which to apply for such relief. It follows that the payment of the taxes was voluntary and not under compulsion or duress. (Illinois Merchants Trust Co. v. Harvey, supra.) “It is well settled that in the absence of fraud taxes so paid cannot be recovered, even though they are illegal because laid under an unconstitutional law, where there is no statute authorizing such recovery.” Richardson Lubricating Co. v. Kinney, 337 Ill. 122.)

As claimants had an adequate remedy in the courts of general jurisdiction to avoid the payment of the taxes and failed to avail themselves of that remedy but elected to pay the taxes the payment will be deemed voluntary, and the petition for a rehearing denied.

On September 10, 1930, upon an amended stipulation of facts the following modified opinion was filed

Since the filing of the petition for a rehearing in these cases an amended stipulation of facts has been filed. It appears from this amended stipulation that the Western Electric Company, in its bill for injunction, asked to have the Secretary of State restrained from paying into the State Treasury, the taxes in question paid by it. It thus appears this claimant did all the law requires in order to entitle it to an award for the return of the taxes. The opinions heretofore filed herein are modified to the extent of allowing the Western Electric Company an award in the sum of $6,278.22 and in all other respects are adhered to, and the petition for a rehearing is denied.


source: Caselaw Access Project

author: Mr. Justice Thomas

license: Public Domain

text:
    (No. 1385
    Merchants Oil Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    S. A. Bleisch, for claimant.
    Osoab E. Cablstbom, Attorney General; S. S. DuHamel, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is for $349.08 gasoline tax paid by claimant under provisions of the Motor Fuel Tax Act of 1927 held unconstitutional-by the Supreme Court.

Claimant alleges it paid the tax in advance of its sales and that when the Act was held unconstitutional it had on hands and unsold 17,454 gallons of gasoline on which it had paid a tax of $349.08, and urges the State should re-imburse it for that sum on the grounds the gasoline had not been sold.

It is not contended that the tax was not voluntarily paid by claimant. In fact it is admitted that it was so paid. It is a familiar rule of law that money voluntarily paid can not be recovered back. That the party making the payment is under no legal obligation to pay the money and the party to whom it is paid has no right to receive it is of no consequence where it is paid voluntarily. (Ill. Glass Co. v. Chicago Tel. Co., 234 Ill. 535; School of Domestic Arts v. Harding, 331 Ill. 330.) In this case the tax now sought to be recovered was not due when it was paid, and the State officials charged with its collection had no right to demand its payment at that time. Claimant knew this when it made the payment, and paid the tax because it was more convenient for it to do so then than to wait till it sold the gasoline. It is not therefore entitled to recover the tax so paid. The fact that the law under which the tax was paid was later held unconstitutional does not aid the claimant in any way. At the time it paid the tax claimant believed the law to be valid and the payment was made to comply with its requirements. It is well settled that taxes so paid cannot be recovered, even though they are illegal because laid under an unconstitutional law, where there is no statute authorizing such recovery. (Richardson Lubricating Co. v. Kinney, 337 Ill. 122.) As there is no statute authorizing a recovery of taxes paid under an invalid law claimant is not entitled to an award against the State for them.

The claim is therefore denied and the case is dismissed.


text:
    (No. 1493
    Mabel A. Walsh, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    Evan L. Seabcy, for claimant.
    Oscab E. Cablstbom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This is a claim for $350.00 damages alleged to have been sustained by claimant as the result of her automobile skidding into a small ditch on State Route No. 2 near Cobden. The substance of the declaration is that the State so negligently constructed the road at the place of the accident that dirt washed from the embankment on the side of the road onto the pavement and was negligently permitted to remain there by the employees of the State without warning signs being put up to notify claimant of its condition, and that on account of the condition of the road at said place the automobile of claimant skidded off the road and into a small ditch about twenty feet away.

All roads in the State built and maintained at public expense by the State, or by such governmental sub-divisions of the State as towns and counties, are public highways constructed and maintained for the benefit of the general public. They are the people’s highways and in their construction and maintenance the people exercise their sovereign power. State Route No. 2, is such a highway. It was built by the State for general use and paid for out of the public funds. In its construction the State was in the exercise of its sovereign capacity. Neither the State, nor any sub-division of the State for governmental purposes, is liable for damages caused by either a defect in the construction of a public road or failure to maintain it in a safe condition for travel unless there is a statute expressly making it so liable. This principle of law has been so frequently announced by this court and our Supreme Court that a citation of cases is unnecessary.

As the Legislature has not passed any Act making the State liable for such damages as claimant alleges she sustained it follows no award can be allowed her.

The claim is therefore denied and the case dismissed.


text:
    (No. 1545
    Transportation Building Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    Harmon, LeBaron & Swartz, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant is asking an award of $935.04. The claim, it is alleged, is for $750.00 office rent and $35.04 electric light furnished the Athletic Commission. The claim is based on a contract entered into between claimant and the Department of Finance. The contract is dated April 30, 1927, and purports to lease the premises therein described to the State for the use of the Athletic Commission for a period of two years and two months. It provides for the payment of $9,750.00 rent payable in monthly installments of $375.00, the electric light furnished by claimant, and all attorney fees incurred by claimant in any litigation necessary to enforce the obligations of the lessee.

Section 36 of the Civil Administrative Code defines the powers of the Department of Finance. Sub-section 13 of that section provides: “The Department of Finance shall have power to lease, for a term not exceeding two years, office space in buildings for the use of the several departments.” Under the provisions of the section the Department of Finance had no power to enter into a lease for a longer period than two years. The Legislature had the right to limit the powers of the department and the officials of the department and all persons dealing with it are bound by the limitations placed upon it. To hold otherwise is to permit officials to ignore plain provisions of the law, to substitute their own for the legislative will.

The contract being in violation of the statute is void, (The People v. Sperr, 314 Ill. 205) and, being void, it cannot be enforced for the law cannot at the same time prohibit a contract and enforce it. (DeKam v. City of Streator, 316 Ill. 123.)

The record in this case shows that the Athletic Commission had exhausted the appropriation made by the General Assembly for its office expenses leaving no funds out of which to pay this claim. Section 18 of Article 4 of the Constitution provides that each General Assembly shall provide for all the appropriations necessary for the ordinary and contingent expenses of the government until the expiration of the first fiscal quarter after the adjournment of the next regular session, the aggregate amount of which shall not be increased without a vote of two-thirds of the members elected to each house, nor exceed the amount of revenue authorized by law to be raised in such time. This provision gives the General Assembly the exclusive power to fix the amount of money that may be expended by any department of the State Government. Section 3 of the Act in relation to State finance provides: “No officer, institution, department, board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.” This section of the statute is so plain that its meaning cannot be misunderstood. The Athletic Commission had no power to contract an indebtedness for rent, or for any other purpose, in excess of the appropriation made for it and its attempt to do so is wholly void. This question was before this court in Lewson v. State, 5 Ct. Cl. 80. In that case, on page 83, we said: “The Legislature ascertains biennially what is a reasonable and proper amount to be appropriated for each officer and department. It is a vital part of the duties of the Legislature, in its wisdom and deliberations, to carefully ascertain what amount of money our State should expend in the succeeding two years. * * * To allow this claim would be to establish a most dangerous precedent. It would open up the avenue for all State officers and State departments to ignore the limitations of the appropriation for their respective offices or departments, if they saw fit so to do, and rely on the Court of Claims to take care of all claims made in excess of such appropriations. We believe the Legislature and Governor are much better informed on matters of appropriations than the Court of Claims is, or ever will be, and that the subject is exclusively within their powers and duties, and we will not usurp it.” We see no reason for changing the views there expressed, and the claim is denied and the case is dismissed.


text:
    (No. 1557
    Central Building Materials Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    L. J. Siesener, Secy., for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is for 55 tons of Mississippi River sand sold to the Division of Highways at 84 cents per ton and shipped May 29, 1929. The sand was received and used by the State. It is conceded the State has never paid for it, and claimant is awarded the sum of Forty-six Dollars and Twenty Cents.


author: Mr. Chief Justice Clarity

text:
    (No. 1571
    Clayton A. Pense, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    Scanlan & Massieon, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim based upon the same principle as involved in the opinion of this court in the case of John B. French v. State of Illinois, and it appearing no objection being made by the defendant, the court recommends that the claimant be allowed the sum of $219.46.


author: Mr. Chief Justice Claríty

text:
    (No. 1572
    James Short, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    Scanlan & Massieon, for claimant,
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General,, for respondent.
   Mr. Chief Justice Claríty

delivered the opinion of the court:

This is a claim based upon the same principle as involved in the opinion of this court in the case of John B. French v. The State of Illinois, and it appears no objection being made by the defendant, the court recommends that the claimant be allowed the sum of $208.34.


text:
    (No. 1573
    John B. French, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    Scaxlan and Massieon, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears that claimant was appointed by the Governor of the State of Illinois to the office of Industrial Officer of the Industrial Commission of the State of Illinois; that said claimant qualified by filing bond, etc., that he assumed his duties at such office on the 23rd day of June, 1925; that subsequent to the said appointment the 56th General Assembly of the State of Illinois by an amendment to the Civil Administrative Code effective July 1st, 1929, fixes salary of said claimant as such officer at $5,000.00 per annum; that the 56th General Assembly of the State of Illinois so fixing said salary and while continuing to act in that capacity claims a back salary $208.34. It appearing that no objection being made by the” Attorney General, and it appearing that the Chairman of the Industrial Commission admits the correctness of the claim and in view of the foregoing the Court recommends that claimant be allowed the sum of $208.34.


text:
    (No. 1574
    John J. Brenholt, Jr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    Soanlan and Massieon, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim based upon the same principle as involved in the opinion of this court in the case of Jolm B. French v. The State of Illinois, and it appearing no objection being made by the defendant, the court recommends that the claimant be allowed the sum of $208.34.


text:
    (No. 1578
    Standard Oil Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    F. E. Packard, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is for 14 cases, containing 742 gallons of N.R.S. cut-back asphalt sold and delivered to the Division of Highways by claimant on June 7, 1929, at 14.4 cents per gallon. It is conceded by the officials of the Division of Highways that the asphalt was received and used by the State, and has not been paid for.

Claimant is therefore allowed an award of $106.85.


text:
    (No. 1580
    Kubec Electric Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    Kubec Electric Company, pro se.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant asks an award of $296.40 for electrical fixtures sold and delivered to the Kankakee State Hospital. The authorities of the hospital admit the goods were received and have not been paid for. Claimant is therefore awarded the sum of $296.40.


text:
    (No. 1582
    Board of Education, District 144, Normal, Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    Pearl Ford, Clerk, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

The State Normal University used the Central School Building of claimant for extra classes during the six weeks beginning June 8th and ending July 20th, of the year 1928. Claimant furnished the towels, paper, light and water and the janitor service during the six weeks its school building was used by the University. A bill for the amount due claimant was rendered but the officials of the University failed to issue a voucher in payment of it until after the appropriations for 1928 had lapsed. It is conceded claimant has not been paid and that its bill is just. Claimant is therefore awarded the sum of $399.25, being the amount its itemized statement shows is due.


text:
    (No. 1584
    Lyle Nadon, by Edythe Nadon, his Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    McCarthy & McCarthy, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears that the claimant’s bicycle was destroyed by a truck owned by the State of Illinois and driven by an employe of the State of Illinois, which got beyond the control of the driver and ran across the side walk and into the claimant’s bicycle, completely demolishing it without fault of claimant. The bicycle was worth $55.00 and was a new vehicle.

From the facts in the case, it would appear that the claim of this boy was reasonable and that no objections being made by the defendant, this court recommends that this claimant be allowed the sum of $55.00.


text:
    (No. 1585
    Edward J. Jackoboice, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    Taggart & Kingston, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant sold to the Division of Highways one Monarch road scraper at the price of $301.54, the scraper being shipped June 15, 1929, and received about July 1st following.

It is admitted by the State officials that claimant has not been paid and that his claim is due. He is therefore awarded the sum of $301.54


text:
    (No. 1596
    N. L. Lindley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    Hinchliff, Miller & Thomas, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant asks an award of $162.10 for damages to his automobile, loss of time suffered on account of personal injuries received and money paid out for physician’s services. He charges in his declaration that on August 8, 1927, while his automobile was parked beside one of the concrete roads in Camp Grant a team of horses being driven by members of the Illinois National Guard became frightened and ran into his car damaging it and injuring him to such an extent that he lost nine days’ work. No evidence has been introduced to support the claim and we might well deny it for that reason but we will put our decision on other grounds.

The declaration is not good — it does not state a cause of action. It does not allege claimant was in the exercise of reasonable care nor does it state any facts from which such can be inferred. Neither does it charge the alleged injuries were caused by the negligence of the men in charge of the horses or state any facts showing negligence on their part. It is fundamental in pleading that where one seeks to recover in cases such as this against either a natural or corporate person he must allege and prove due care on his part and negligence on the part of the defendant.

Camp Grant is in the possession of the State and is used to give military training and instruction to the National Guard of the State. There is nothing in the declaration that in any way connects claimant with the Camp, either as an employee, a member of the Guard or otherwise. He was, at most, a mere licensee while on the grounds. The only duty the owner of premises owes a licensee is not to injure him wilfully or intentionally. (Haye et al. v. State, 5 Ct. Cl. 359 and cases there cited.) So far as this record shows the injuries to claimant were the result of an accident for which no one was responsible.

But if the declaration showed that claimant’s damages were caused by the negligence of the men in charge of the horses it does not follow that the State is liable therefor. There is no statute making the State liable for the wrongful acts of the members of the National Guard, and in the absence of such law this court has no power to declare it liable for such acts. If, however, a member of the National Guard wrongfully injures any one, either negligently or wilfully, he is answerable to the party injured in the civil courts. The fact that he is a member of the Guard does not relieve him from his liability. If claimant has any cause of action for the injuries he received it is against the men themselves and not against the State.

The claim is therefore denied and the case dismissed.


text:
    (No. 1599
    Logan Hay, R. Allan Stephens, Partners, Doing Business Under the Firm Name and Style of Brown, Hay & Stephens, and Geo. B. White, and S. E. Quindry, Partners, Doing Business as White & Quindry, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    Brown, Hay & Stephens, and White & Quindry, for claimants.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a case where claimants bring action to recover $500.00, for attorney fees and $288.60 for transportation, hotel'bills, meals, telephone, stenographic hire and printing, making a total of $788.60.

It appears that this claim is based upon services rendered by claimants in the matter of an election contest, growing out of an election held on November 6, 1928, in the Fiftieth (50th) Senatorial District of the State of Illinois.

Claimants allege further that this matter was heard before the Legislature and they were employed to represent Wallace A. Bandy before a committee of the Illinois Legislature in the hearing of the contest. That they spent a large amount of time and energy in a successful defense of the contestee resulting in a finding that contestee was duly elected'and qualified as representative of the Fiftieth (50th) Senatorial District.

It appears to the court that services were rendered as claimed, but that the matter of employment was a legislative act and entirely within the knowledge of the Legislative Department of the State of Illinois.

The Court of Claims is simply an advisory committee of the Legislature. Its functions are to hear and determine facts and make recommendations to the Legislature. This is a means to expedite transaction of business and to give the Legislature the benefit of the investigation and determination of this court.

In a matter wherein the Legislature is fully advised of all the facts in the matter in controversy and are in a position to understand fully the power given and the work performed, as expressed in this case, this court is of the opinion that it should not take a position of advising in the case at issue.

The Constitution of the State of Illinois empowers the Legislature with the right to determine the qualification of its members. The Legislature has the power to retain or expel a member of that body. It is very important that the membership of that great legislative body should be safeguarded to the utmost.

Therefore, the Constitution gave the legislative body the exclusive power to determine the rights of its members and in this case, the Legislature in pursuing its powers, heard and determined the case in question and were fully informed as to the expenses incurred and the services performed by all persons in all hearings in this legislative contest.

Therefore, this court is of the opinion that the Legislature is entirely informed and has exclusive power to carry out in full the program in question without the advice or counsel of an advisory body such as this court and therefore this court makes no recommendation, leaving the matter entirely to the discretion, power and authority of the Legislature of the State of Illinois. Case dismissed without prejudice.


text:
    (No. 1610
    Steve Struck, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    Harold W. Lewis, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears that claimant was injured while in the employ of the State of Illinois as a carpenter in and-around the Illinois Soldiers’ and Sailors’ Home on or about the 25th day April, 1921, and while so employed on or about that date, he suffered an injury. He filed his claim on June 30th, 1930, which is of course more than five years and the Attorney General coming and filing his objections on the ground of the Statute of Limitations in the nature of a demurrer and this court following the rule prescribed by statute finds that said claim has not been filed within five years. Therefore, the claim is dismissed and disallowed.


text:
    (No. 1640
    E. N. Nevins, and Pearl O’Brien, Widow of George P. O’Brien, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    E. N. Nevins, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion'of the court:

This is a claim based upon the same premises as set forth in case No. 1599, where Logan Hay, et al., are claimants and the State of Illinois defendant and the same principles- being involved, this court makes the same finding as in the above cited case, No. 1599.


author: Mr.. Justice Thomas

text:
    (No. 1221
    Sta-Rite Hair Pin Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1930.

    McLaughlin & Billman, for claimant.
    Oscar E. Carlstrom, Attorney Greneral; David J. Kadyk, . Assistant Attorney Greneral, for respondent.
   Mr.. Justice Thomas

delivered the opinion of the court:

This claim is for $246.10 excess franchise taxes alleged to have been paid by claimant for the years 1918 to 1925 inclusive and $91.33 interest thereon. The declaration was filed July 12, 1927. On April 17, 1929, the Attorney General filed a general and special demurrer to the declaration. No evidence has been taken and the case is submitted on the declaration and demurrer.

The special grounds for demurrer are that it appears from the declaration that the alleged excess taxes paid in the years 1919 to 1922 inclusive were paid more than five years before the filing of this claim. Claimant urges (1), that as the State did not file any plea within thirty days after the filing of the declaration it is now barred from filing a demurrer, citing rule 12 in support of its contention; and, (2) that the question of limitations cannot be raised by demurrer but must be specially pleaded. Rule 12 provides that if the State shall fail to plead within thirty days after the declaration is filed a general traverse of the declaration shall be considered as filed.

A plea at common law meant a defense of matters of fact. Its province was to state the facts upon which the defendant relied to defeat the action of the plaintiff. A demurrer is not a plea. It neither affirms nor denies any matter of fact. It presents an issue of law to the court, and is an excuse for not pleading. The purpose of providing that a general traverse shall be considered as filed if the State fails to plead within thirty days after the filing of the declaration is to prevent defaults against the State and compel claimants to prove their claims with the same strictness that would be required if a plea of general denial was filed. The declaration in this case was filed July 12,. 1927. Under rule 16 it was the duty of the claimant to have taken its testimony and filed it 30 days before the September term of that year. It could have called its case on the convening of court and asked for a rule on the Attorney General to plead or demur to its declaration. within a fixed time, but it did not do so. It took no steps to bring the matter to an issue of any kind. No issuq was made until the demurrer of the State was filed, which raises only an issue of law. Rule 12 was not intended to bar the court from deciding such issues when properly raised. The demurrer admits the facts stated in the declaration to be true, and if such facts do not warrant the allowance of an award to claimant it would he useless to require claimant to go to the expense of proving them.

Whether or not the bar of the statute of limitations can be raised in this court by demurrer is not important. Section 10 of the act creating the Court of Claims specifically provides that every claim against the State cognizable by the court shall be forever barred unless it is filed with the Secretary of the Court within five years after the claim first accrues. This provision of the statute is mandatory, and whenever it appears to the court, either from the declaration or the evidence, that a claim falls within its inhibition it is the duty of the court to refuse to allow it. No award can, therefore, be made for the excess taxes paid in the years 1919 to 1922 inclusive.

The declaration states, in substance, that claimant was assessed and paid franchise taxes for the years 1918 to 1925 inclusive in excess of what it was legally bound to pay. So far as the declaration shows these taxes were voluntarily paid. The fact that the tax was illegal does not, alone, give the taxpayer the right to recover it. Its payment must have been compulsory, — it must have been paid under protest and duress before it can be recovered back. 11 That a tax voluntarily paid cannot be recovered back the authorities are generally agreed, and it is immaterial in such case that the tax has been illegally laid or even that the law under which it was laid was unconstitutional. The principle is an ancient one in the common law and is of general application. Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make he cannot afterwards assign his ignorance of the law as the reason why the State should furnish him with legal remedies to recover it back.” (Cooley on Taxation, 2 Ed., p. 809; Board of Education v. Toennigs, 297 Ill. 469.)

The act in relation to the payment of public money into the State Treasury provides a means whereby claimant could have had the question of the validity of the tax determined by a court of general jurisdiction. It did not do so but elected to pay the tax. "Where a claimant had a remedy in a court of general jurisdiction and failed to avail himself of such remedy the Court of Claims will not take jurisdiction. (Moline Plow Co. v. State, 5 Ct. Cl. 277.)

As the facts stated in'the declaration show claimant cannot be allowed an award the demurrer is sustained and the case dismissed.


text:
    (No. 1335
    Oakford & Fahnestock, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1930.

    Hunter, Kavanagh & McLaughlin, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant is an Illinois corporation engaged in the wholesale grocery business. It alleges in its declaration that for the years 1923 to 1926 inclusive the Secretary of State demanded and insisted upon receiving the sum of $800.00 as a franchise tax for each of those years, basing his contention upon the claim that the franchise tax assessable should be assessed not against the outstanding capital stock of claimant, but upon the authorized capital stock, and that thereupon claimant did, under protest, pay such tax so demanded by the Secretary of State; that the difference between the taxes demanded and paid and the amount lawfully due for those years is $576.05; and that the Secretary of State was unable to refund the taxes so lawfully collected because he had paid them over to the State Treasurer. To this declaration the State has filed a general demurrer.

The contention of claimant is that the law under which the taxes were assessed and collected was unconstitutional and the Secretary of State had no legal right to collect them and they should, therefore, be refunded by the State.

It is fundamental that a tax voluntarily paid cannot be recovered back. The fact that the law under which the tax is laid and collected is unconstitutional does not of itself give the right to have it refunded. No one is required to pay an illegal tax, and no officer can legally collect such a tax. Every person is supposed to know the law, and if he voluntarily pays an illegal tax, he cannot afterwards assign his ignorance of the law as a reason for having it refunded to him. (Board of Education v. Toennings, 297 Ill. 469.) If claimant paid these taxes in ignorance only of its legal rights the fact that it was under no legal obligation to pay them and the Secretary of State had no legal right to collect them is of no consequence unless the payment was compulsory. (Ill. Glass Co. v. Chicago Tel. Co., 234 Ill. 535; School of Domestic Arts v. Harding, 331 Ill. 330.)

It is alleged in the declaration that “the claimant did, under protest, pay said tax so demanded by the Secretary of State.” This is not sufficient to relieve the payment of its voluntary character. The Secretary of Stale claimed the right to collect these taxes, and the fact claimant protested that right at the time of their payment does, not give it the right to recover them back. (Conklin v. City of Springfield, 132 Ill. 420.) Before claimant is entitled to recover them it must also allege, they were paid under duress. (Yates v. Royal Ins. Co., 200 Ill. 202; School of Domestic Arts v. Harding, supra.)

Section 112 of the G-eneral Corporation Act in force when these taxes were paid provided that between the first day of February and the fifteenth day of May of each year, the Secretary of State should notify each corporation against which a franchise tax was assessed of the amount of such tax assessed against it, and that objection thereto would be heard on request of the corporation on a day not later than the twenty-fifth day of June. There is no allegation in the declaration that this notice was not received. Section 108 of that act provided the tax should be due on July first, and Section 114 that it should not become delinquent until August first. Section 116 provides that if the tax was not paid on or before July thirty-first the Secretary of State should issue a warrant for its collection. Under these provisions of the statute claimant’s business could not be interfered with in any way by the Secretary of State until the first day of August even if-the tax was not paid prior to that time. (Parker Holladay Co. v. Bokum, 252 Ill. App. 135.) If claimant believed the tax illegal it had ample time after receiving notice of the amount claimed to be due to invoke the aid of a court of chancery to restrain the Secretary of State from attempting to enforce its -payment. A court of equity will interfere and by injunction prevent the collection of an illegal tax. (Drainage Comrs. v. Kinney, 233 Ill. 67; Sanitary District v. Board of Review, 258 Ill. 316; St. Louis Bridge Co. v. Eisele, 263 Ill. 50; Baltica Ins. Co. v. Carr, 330 Ill. 608.) . By invoking the aid. of a court of equity claimant could have been relieved from the payment of these taxes if they were illégal. It did not do so but chose to pay the taxes, and it cannot now ask to have them refunded on the ground they were illegal. (Ill. Merchants Trust Co. v. Harvey, 335 Ill. 21; R. C. L., p. 151, sec. 176.) The taxes were not paid under duress.

But claimant also had another remedy to have the validity of the taxes determined by the court. Section 2A of the act in relation to the payment of the public money of the State into the State Treasury provides that every officer receiving public money paid under protest shall hold such money thirty days and on the expiration of that period deposit the same with the State Treasurer unless the party making such payment shall within that period file a bill in chancery and secure temporary injunction restraining the making of such deposit, in which case such payment shall be held until the final order or decree of the court. Under this statute claimant could have had the legality of the tax decided by a court of general jurisdiction and secured an order for its repayment if the tax was held to be invalid. As claimant had the right to have the legality of the taxes determined by a court of general jurisdiction and failed to do so, the Court of Claims will not take cognizance of it. (Moline Plow Co. v. State, 5 Ct. Cl. 277.)

For the reasons above stated, the demurrer is sustained and the case dismissed.


text:
    (No. 1436
    Commercial Solvents Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1930.

    Gillespie, Burke & Gillespie, for claimant.
    Oscar E. Carlstrom, Attorney General; David J7 Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant is a corporation organized under the laws of Maryland. It filed its application for a certificate of authority to do business in Illinois July 13, 1923, and the certificate was issued August 3, 1923. Thereafter it made annual reports for the years 1924 to 1926 inclusive to the Secretary of State as required by the provisions of the General Corporation Act. The Secretary of State computed the initial fees and franchise taxes to be paid by claimant pursuant to the provisions of Sections 96, 101 and 105 of the General Corporation Act then in force. He also assessed additional initial fees for the years 1925 and 1926 pursuant to the provisions of the same sections. These fees and taxes aggregated the total sum of $16,887.01, all of which was paid by claimant, during the years for which they were assessed.

In the case of The O’Cara Coal Co. v. Emmerson the Supreme Court at its April term in 1927 held Sections 96, 101 and 105 of the General Corporation Act invalid as against foreign corporations, and claimant has filed this suit asking to have these fees and taxes refunded to it by the State, alleging they were paid under protest, duress and compulsion.

The fees and taxes for the year 1923 amounted to $4,802.86 and were paid on August third of that year. This suit was filed February 18, 1929, more than five years after these taxes were paid. Section 10 of the act creating the Court of Claims 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, saving to persons under disability two years from the time the disability is removed. This statute is mandatory and the court has no power to make an award for a claim that does not come within its terms. It follows that no award can be made for the initial fees and taxes of $4,802.86 paid August 3,1923.

It is the settled law of this State that taxes voluntarily paid cannot be recovered back. This claimant concedes. It becomes necessary therefore to determine whether or not claimant paid these fees and taxes voluntarily or under protest, compulsion and duress. The facts in the case have been stipulated. This stipulation recites: “(12) That the only initial fee, franchise tax or additional initial fee paid by claimant under protest during said years, 1923 to 1926 inclusive were the initial fees and franchise tax paid by claimant on August 3, 1923, in the aggregate sum of $4,802.86. (13) That claimant paid the initial fee, additional initial fee and franchise taxes in question without duress or compulsion other than the force, forfeitures and penalties of the General Corporation Act of 1919, as amended and in force during the year 1923 to 1926, inclusive.” In the statement of its case claimant says, “No protest was made by claimant in the payment of any initial fee, additional initial fees or franchise taxes assessed against it upon the basis of the unconstitutional sections of said act, except the payment of the initial fee and franchise taxes paid by it during the years 1923 to 1926, inclusive.” In the statement of its case claimant says, “No protest was made by claimant in the payment of any initial fee, additional initial fees or franchise taxes assessed against it upon the basis of the unconstitutional sections of said act, except the payment of the initial fee and franchise taxes paid by it during the year 1923 at the time it was granted its original certificate of authority to do business in the State of Illinois. Claimant paid the initial fee, additional initial fees and franchise taxes in question without duress or compulsion other than the force, forefeitures and penalties of the General Corporation Act of 1919, as amended and in force during the years 1923 to 1926, inclusive. ’ ’

It is not contended that the Secretary of State made a mistake in the computation of the fees and taxes paid by claimant. The contention is that the sections of the statute which he followed in making the computations were unconstitutional and void as against claimant and therefore he had no right to demand them and claimant was not legally required to pay them.

The fact that a tax is illegal or that it was paid under an unconstitutional statute will not give the tax payer the right to its recovery if it was paid voluntarily. (Board of Education v. Toennings, 297 Ill. 469.) The fact that the officer to whom the tax was paid had no right to receive it and the person paying was under no legal obligation to pay it does not change the rule. (Ill. Class Co. v. Chicago Tell. Co., 234 Ill. 535; School of Domestic Arts v. Harding, 331. Ill. 330.)

At the time these fees and taxes were assessed and paid the Secretary .of State believed the law under which he computed them to be valid. It is not contended that any fraud or misrepresentation was practiced upon claimant by the Secretary of State in the computation and collection of these fees and taxes. Neither is it contended that he used any duress or compulsion to enforce their payment. With the exception-of the first payment in August, 1923, they were all paid without protest, and for the years 1925 and 1926 they were paid before they were due. We think it is obvious that claimant believed the law under which the taxes were paid was valid and paid them in that belief. Such a payment is voluntary. If the payment of these fees and taxes had been made voluntarily and with the intention of seeking to have them refunded, the presumption is that claimant would have availed itself of the method provided by law to prevent the Secretary of State from paying them into the State Treasury until their validity could be established. (Richardson Lubricating Co. v. Kinney, 337 Ill. 122.) It will be presumed, in the absence of evidence to the contrary, that all payments- of taxes were voluntary. (Yates v. Royal Ins. Co., 200 Ill. 202.) And the fact that the party paying the tax paid it under mistake as to Ms legal obligation to pay it does not, of itself, give him the right to have it refunded. (Illinois Merchants Trust Co. v. Harvey, 335 Ill. 284.)

It is urged by claimant that these fees and taxes were paid under duress and compulsion because the statute subjected it to certain forfeitures and penalties if it refused to pay them. No protest was made by claimant against paying them at the time they were paid, and there is nothing in the record to show they were paid to avoid these forfeitures and penalties. Mere knowledge of the fact that failure to pay them would subject claimant to a forfeiture of its right to transact business in the State does not alone constitute duress. (Yates v. Royal Ins. Co., supra.) And one who pays a tax he believes to be legal will not afterwards be heard to say he was coerced into doing so. (Richardson Lubricating Co. v. Kinney, supra.)

If claimant believed these fees and taxes were illegal and that the Secretary of State had no right to collect them it was not required to pay them in order to avoid the imposition of the forfeitures and penalties mentioned in the statute. It could have filed a bill in equity to restrain the Secretary from collecting the fees and taxes and enforcing the forfeitures and penalties. It has long been the rule in this State that where a tax has been laid under an unconstitutional law courts of equity will interfere by injunction to prevent the collection of the tax. (Drainage Comrs. v. Kenney, 233 Ill. 67; Baltica Ins. Co. v. Carr, 330 Ill. 608.)

Claimant had another remedy to have the validity of these fees and taxes determined by a court of equity. Section 2A of the act in relation to the payment of public money into the State Treasury provides that every officer receiving public money paid under protest shall hold such money thirty days and on the expiration of that period deposit the same with the State Treasurer unless the party making such payment shall within that period file a bill in chancery and secure a temporary injunction restraining the making of such deposit, in which case such payment shall be held until the final order or decree of the court. If claimant believed the fees and taxes to be illegal at the .time it paid them and paid them with the intention to afterward ask for their refund we think it would have availed itself of these provisions of the law.

If one may avoid the payment of an illegal demand by resorting to such a remedy in equity but does not avail himself of such remedy the payment is not compulsory. (Ill. Merchants Trust Co. v. Harvey, supra.) It follows that the payment of these fees and taxes by claimant were voluntary and not under compulsion.

The claim is therefore denied and the case dismissed.


text:
    (No. 1510
    Gerald C. Farlow, Mildred L. Nelson, Formerly Mildred L. Farlow, Mary E. Farlow, Rachael Winifred Farlow, and Jeanette J. Farlow, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1930.

    L. Feed O’Brien, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

In this case the claimants asked for Seventy-five Hundred (#7,500.00) Dollars for certain land taken from them through a condemnation proceedings in the construction of a State Bond Issue Road. The land in question is located three miles west of Augusta, Illinois, and known as the Farlow Farm.

A condemnation proceedings was had in a court of general jurisdiction. At the time of the condemnation the records of the county showed that the title was in one W. O. Farlow; that damages were awarded by the jury in the sum of #100.00 and accepted by the said W. O. Farlow. It now' appears that claimants allege that they had a deed to said premises but it was not recorded at the time of the filing of the condemnation proceedings. Therefore the State only got service on W. O. Farlow the title owner on the records of the County of Hancock.

There is nothing in the records to indicate other than that the condemnation proceedings were regular and that a proper and reasonable compensation was allowed by a verdict of a jury in the sum of $100.00 and it appears that W. 0. Farlow accepted this money and it would seem that, that should settle the controversy as to the land taken in question. It would appear to this court that there is no reason either as a matter of law or as a matter of equity and good conscience in any question determined in a court of general jurisdiction on the question of value. It would appear that a jury’s verdict would be a good criterion as to the damages sustained. Therefore this court will not pass on that question.

It would appear to the court that this is a matter between "W. O. Farlow and claimants and it would not appear proper for the State of Illinois through this court to consider a matter in behalf of the claimants who failed to file their deed in proper time and wherein a jury passed upon the matter of damages and wherein the State of Illinois was at no fault in the matter of getting service on the record title owners in the condemnation proceedings.

Therefore this court recommends that the claim be disallowed.


text:
    (No. 1531
    Dr. G. D. Lockie, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

      Rehearing denied on November 12, 1930.

    Evan L. Searcy, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant is asking an award of $225.00 for medical services rendered Charles Morgan. Mr. Morgan was a building inspector in the employment of the Department of Public Welfare. On February 5, 1928, he was taken ill with pneumonia at Wilmington. His brother, Harry F. Morgan, called on claimant at Springfield and asked him to go to Wilmington and treat Charles, telling claimant at the time, that he would see if he could not get the State to pay him for his services. Claimant made three trips to see the patient and his claim is for those trips.

Claimant admits that he was never authorized by any agent or official of the State to treat Mr. Morgan and that no one representing the State ever agreed or promised that the State would pay for treating him. The State is not liable-for medical services rendered its employes in the absence of an agreement to pay for them or of a statute requiring it to-do so.. It is not contended in this case either that there was-an agreement by the State to pay claimant or that there is a statute requiring- it to do so. The claim is therefore denied and the case dismissed.

On November 12, 1930, upon petition for rehearing, the-following additional opinion was filed:

Claimant has filed a petition for rehearing. The reasons-given for asking the rehearing are that he can show by Roy W. Ide who was Director of the Department of Public Welfare at the time he treated Morgan that it was understood, his services in treating him would be paid for by the State,, and that at the time of the hearing Ide was in Europe and his-testimony could not be received. There is no law authorizing' the Director of Public Welfare to make such an agreement,, and if he did so it was void. The petition for a rehearing is. denied.


text:
    (No. 1534
    Louis Guinn, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1930.

    Clarence B. Davis, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the ■court:

It appears that claimant during the summer of 1928 was a member, a private in Co. L and was in Camp Grant, Illinois, at the Tour of Annual Encampment in pursuance of an order from the Adjutant General of Illinois and was entrained with ■other members of his company and was returned to Metropolis. It is alleged that during the travel on the train a lieutenant who was in command of Co. L, was accused of taking money from claimant. An argument resulted and the lieutenant hit the claimant and claimant returned the blow. It is further alleged that the lieutenant went to the baggage ■car and secured one of the army rifles and shot the claimant in the left arm. It appears that the lieutenant has since been incarcerated in the Insane Asylum at Jacksonville, Illinois.

This was a very unhappy circumstance and one that must be deplored. However, the claimant was injured while under the command of a superior officer and while on duty as a soldier in behalf of the State of Illinois. The claimant asked for $4,000.00 but it appears that $1,406.25 is the amount shown to be the real claim.

The Attorney General makes no objection and submits the defense on the facts set forth in the statement, brief and argument of claimant.

In view of the foregoing facts before this court there is but one method to pursue and therefore makes the allowance asked for in this claim.

The court therefore recommends that claimant be allowed the sum of $1,406.25.


text:
    (No. 1546
    W. E. O’Neil Construction Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

      Rehearing denied November 12, 1930.

    Evan L. Searcy, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant asks an award of $11,364.32 as extra compensation for the construction of the Naval Armory at Chicago. It charges that in building the armory it was put to extra expense not contemplated, due to delays on the part of the State and to the rise in the water level of Lake Michigan. The contract is not in evidence and we have no information as to its terms and conditions. There is no contention, however, that claimant was not paid the contract price for the construction of the building.

Section 19, Article 4 of the Constitution provides that “the General Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made.” This provision of the constitution is mandatory and binding upon the courts of the State as well as upon the General Assembly, and this court has no power to grant an award such as is asked for claimant. (Paschen Bros. v. State, No. 750, Opinion filed September 13, 1927.) The language of this provision is clear and unambiguous and its purpose cannot be misunderstood. (Fergus v. Brady, 277 Ill. 272.) When the people adopted the constitution they included this-clause to protect themselves from such evils and mischiefs as are likely to arise out of such a claim as this. (Dunnegan Construction Company v. State, No. 1021, opinion filed Sept. 10, 1929.) Extra compensation is a payment or allowance in excess of that fixed by law or contract at the time the service is rendered. (Porter v. Loehr, 332 Ill. 353.) The work has been completed and the contract price therefor fully paid, so far as this record shows, and no extra compensation for it can now be allowed (Conway & Co. v. State, No. 1412, opinion filed November 6,1929.)

The claim is denied and the case dismissed.

On November 12, 1930, upon petition for rehearing, the following additional opinion was filed:

Claimant has filed its petition for a rehearing in which it is set forth the court overlooked certain matters of fact appearing in the record and misconstrued certain provisions of the statute and constitution. We have carefully considered the points on which the rehearing is asked and find no reason for changing our views as expressed in the opinion filed in the case. The petition is therefore denied.


author: Mr. Chief Justice Clabity

text:
    (No. 1579
    William M. Scanlan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1930.

    Scanlan & Massieon, for claimant.
    Oscab E. Cablstbom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clabity

delivered the opinion of the court:

This is a claim for back salary for acting as Industrial Officer and Chairman of the Industrial Commission of the State of Illinois. It appears that there is no objection on the part of the defendant as to the legality of the claim and that the amount claimed $562.50, is admitted to be mathematically correct in a letter from the State Auditor to the Attorney General.

Therefore the court recommends that the claimant be allowed the sum of $562.50.


text:
    (No. 1591
    Jobst Bethard Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1930.

    Jobst Bethard Company, pro se.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

' This is a claim in the sum of $25.85 for 10 cases of No. 10 Peas shipped February 4th, 1929, at the request of the State of Illinois to the Illinois School for the Blind located at Jacksonville, Illinois. It appears from the record that there is no question about the goods being received and consumed by the inmates of the institution in question.

Therefore the court recommends that the claimant be allowed the sum of $25.85.


text:
    (No. 1592
    Jobst Bethard Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1930.

    Jobst Bethard Company, pro se.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the Court:

This is a claim in the sum of $18.56 for four barrels of-table salt shipped Oct. 26th, 1928, to the St. Charles School for Boys, located at St. Charles, Illinois. It appears from the record that there is no question about the goods being received and consumed by the inmates of the institution in question.

Therefore the court recommends that the claimant be allowed the sum of $18.56.


text:
    (No. 1593
    Jobst Bethard Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1930.

    Jobst Bethard Company, pro se.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim in the sum of $167.60, for 40 boxes of prunes, fifty pounds each, shipped on or about July 5th, 1928, at the request of the State of Illinois to the St. Charles School for Boys, located at St. Charles, Illinois. It appears from the record that there is no question about the goods being received and consumed by the inmates of the institution in question.

Therefore the court recommends that the claimant be allowed the sum of $167.60.


text:
    (No. 1598
    Dan Halterman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1930.

    A. J. Pickkell, for claimant.
    Oscar E. Cabestróme, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim for property damages suffered as a result of a fire which spread to his lands from an adjacent farm. It is claimed that this fire was caused through the negligent act of certain employees and patients of the Anna State Hospital.

There does not appear to be any objections on behalf of the defendant as to the liability of the State in this case. However, the State does object to the amount of claimant’s claim $650.00. The defendant claims that from all the evidence in the matter that $225.00 would be proper and sufficient award on this claim.

This court is of the opinion that $225.00 is a sufficient and reasonable award and therefore recommends that claimant be awarded the sum of $225.00.


text:
    (No. 1601
    Dr. J. G. Meyer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

      Rehearing denied November 12, 1930.

    Walter B. Lindgren, for claimant.
    Oscar B. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is for $76.00 for medical services rendered J. 0. Schofield by claimant. It is alleged that Schofield, an employee of the Department of Public Health, ran a splinter in his hand while opening a box on October 8, 1928, and that claimant treated him on account thereof from October 11th, to November 9th. Claimant has introduced no evidence to support his claim, but it is clear from the allegations of the declaration that there is no liability on the part of the State. The State is not liable for medical services furnished its employees unless there is a statute expressly so providing. It is not pretended there is any statute authorizing the State to pay for medical services rendered employees of the Department of Health.

The claim is denied and the case is dismissed.

On November 12, 1930, upon petition for rehearing, the following additional opinion was filed:

Claimant has filed a petition for rehearing of this case. The rules of law announced in the- opinion filed herein are adhered to, and the petition for a rehearing is denied.


text:
    (No. 1602
    J. W. Gluesing, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1930.

      Andrew R. Kopp, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

■ This claim is for $258.77 alleged to be due claimant for services and expenses as a member of the Dental Examining Committee. Before,' claimant presented his bill for these services, the appropriation for the period to cover them, had lapsed so that it could not be paid. No evidence has been taken but it is conceded by the Department of Registration and Education that the State owes him $133.54 for such services and expenses, and the Attorney General recommends an award for that sum.

Accordingly claimant is allowed an award for the sum of $133.54.


text:
    (No. 1641
    Joe Williams, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1930.

    Augustus L. Williams, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears that claimant was on the 18th day of October, 1927, given a sentence of 30 days in the House of Correction in the City of Chicago, Illinois. The sentence was imposed by a Judge of the Municipal Court of that city. The claimant avers that while he was serving this sentence, he was injured by an attack by a fellow inmate and claims to be seriously injured and asked that he be remunerated by the State of Illinois in the sum of $15,000.00.

The defendant, the State of Illinois, appears and files a Plea to Jurisdiction and the court now being advised in the premises, is of the opinion that said House of Correction is not a sub-division of the State of Illinois under the control of the Department of Public Welfare and that this is not a claim that can be reviewed by this court. Therefore the plea of the defendant is sustained and claim dismissed.


text:
    (No. 962
    American Can Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    Paul O’Donnell, for claimant.
    Oscar E. Carlstbom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clabity

delivered the opinion of the court:

Now comes Oscar E. Carlstrom, Attorney General, and makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the claimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it is hereby ordered that the claim be dismissed without an award and the case stricken from the docket.


text:
    (No. 1206
    Browning, King & Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

      Vail, Eoe & Plamondon, for claimant.
    Oscar E. Oarlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now comes Oscar E. Oarlstrom, Attorney General, and makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the claimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it is hereby ordered that the claim be dismissed without an award and the case stricken from the docket.


text:
    (Nos. 1214-1240
    American Locomotive Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    William L." Patton and Miles Gray, for claimant.
    Oscar E. Oarlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

For the matter of consideration and opinion this court will pass upon both of the above entitled cases as consolidated, as the questions of law involved are the same although the facts are somewhat different.

In No. 1214 the claimant is asking for the return of franchise fees paid during the years 1923, 1924, 1925 and 1926, each in the sum of $1,000.00, the claimant alleging that the payments were made under compulsion, which compulsion arose through fears of penalties, provided under the Corporation Laws of the State of Illinois.

In Case No. 1240 the claimant appears assignee of the claim from the Railway Steel Spring Company in a New Jersey Corporation now dissolved, it appearing the assignor paid corporation franchise fees for the year 1923. The declaration alleging was made under the same compulsion as in 1214 above. It is contended by claimant that the General Corporation Act concerning penalties for non-payment of franchise fees are of themselves compulsion for the payment of snch fees and that payment under protest would be useless.

This court is of the opinion that claimant had an adequate remedy at law or in courts of general jurisdiction and to sustain this position, this court will recite a paragraph from the brief and argument of the Attorney General in words and figures as follows:

‘‘If claimant had considered this payment as being involuntary it would have made the payments under protest and filed its bill in a court of competent jurisdiction for a writ of injunction to restrain the receiving officer from paying the amount into the State Treasury in accordance with the statutory procedure set up by the State Legislature. This the claimant did not do. It must be considered therefore that the payment was made voluntarily and therefore cannot be recovered back. (Richardson Lubricating Co. v. Kinney, 337 Ill. at 128; Standard Oil Co. v. Bollinger, 337 Ill. at 357.)”

It is therefore recommended by this court that said claims be denied and petitions dismissed.


text:
    (No. 1218
    United States Hoffman Machinery Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    Winston, Strawn & Shaw, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now comes Oscar E. Carlstrom, Attorney General, and makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the claimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it is hereby ordered that the claim be dismissed without an award and the case stricken from the docket.


text:
    (No. 1219
    J. H. Williams & Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    Winston, Strawn & Shaw, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now comes Oscar E. Carlstrom, Attorney General, and makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the claimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it is hereby ordered that the claim be dismissed without an award and the case stricken from the docket.


text:
    (No. 1226
    Chicago, Wilmington & Franklin Coal Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    Adams & Hawley, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now comes Oscar E. Carlstrom, Attorney General, and makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the claimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it is hereby ordered that the claim be dismissed without an award and the case stricken from the docket.


text:
    (No. 1227
    Oris P. Van Sweringen, and Otto Miller, Trustees for the Stockholders of the Calumet and Chicago Canal & Dock Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    Arthur D. Cloud, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now comes Oscar E. Carlstrom, Attorney General, and makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the claimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it is hereby ordered that the claim be dismissed without an award and the case stricken from the docket.


text:
    (No. 1229
    Manhattan Electrical Supply Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    Paul 0 ’Donnell, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now comes Oscar E. Carlstrom, Attorney General, and ' makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the claimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it is hereby ordered that the claim be dismissed without an award and the case stricken from the docket.


text:
    (No. 1242
    The Todd Company, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    Winston, Strawn & Shaw, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General,, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now comes Oscar E. Carlstrom, Attorney General, and makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the cláimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it is hereby ordered that the claim be dismissed without an award and the case stricken from the docket.


text:
    (No. 1245
    Stromberg Carison Telephone Manufacturing Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    Winston, Strawn & Shaw, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now comes Oscar E. Carlstrom, Attorney General, and makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the claimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it .is hereby ordered that the claim be dismissed without an award and the case stricken from the docket.


text:
    (No. 1255
    Royal Typewriter Company, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    ' Winston, Stbawn & Shaw, for claimant.
    Oscab E. Caklstbom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the" court:

Now comes Oscar E. Carlstrom, Attorney General, and makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the claimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it is hereby ordered that the claim be dismissed without an award and the case stricken from the docket.


author: Mr. JusTicE Thomas

text:
    (No. 1273
    S. Oppenheimer & Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    Herwin Michael Hart, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk,. Assistant Attorney General, for respondent.
   Mr. JusTicE Thomas

delivered the opinion of the court:

This claim is for $2,585.26 alleged excess franchise taxes' and license fees paid by claimant for the year 1925. The-declaration charges that there was unlawfully assessed against it for the year 1925 a franchise" tax of $1,534.42 and an additional license fee of $1,338.39, making a total of $2,872.81; that the amount lawfully' due the State for that year is $287.55; that claimant protested against the payment of the assessment of $2,872.81 but in order to avoid the assessment of penalties, on June 29, 1926, paid the Secretary of State, under protest, the said sum of $2,872.81.

The Attorney General has demurred to the declaration.

It is the settled law of this State that taxes voluntarily paid cannot be recovered back unless there is a statute providing for such recovery. Payment to avoid penalties will be deemed a voluntary payment. (21 R. C. L., p. 151, sec. 176; People v. Bandy, 239 Ill. App. 273.) The fact that the-taxes may have been illegal does not alone give claimant the right to recover them. (Board of Education v. Toennigs,. 297 Ill. 469.) Neither does the fact alone that it made the payment under protest give claimant the right to have the taxes refunded. (Standard Oil Co. v. Bollinger, 337 Ill. 353.) Before an illegal tax can be recovered back by the taxpayer he must show the payment was made under duress. And if he might have avoided the payment by resorting to a court of equity but did not do so the payment will be held to be voluntary. (Ill. Merchants Trust Co. v. Harvey, 335 Ill. 284.)

Under Paragraphs 171 and 172 of Chapter 127, Smith’s 1929 Statutes claimant had a remedy in a court of equity to have the legality of these taxes determined and the taxes refunded if found to be illegal. Not having pursued that remedy it must be presumed that claimant paid the taxes voluntarily and without intending to ask for their refund. (Richardson Lubricating Co. v. Kinney, 337 Ill. 122.) The demurrer is sustained and the case dismissed.


text:
    (No. 1280
    Missouri Pacific Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    Whitnel & Browning, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now comes Oscar E. Carlstrom, Attorney General, and makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the claimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it is hereby ordered that the claim be dismissed without an award and the case stricken from the docket.


text:
    (No. 1287
    The Minneapolis Threshing Machine Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    L. E. Stephenson, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now comes Oscar E. Carlstrom, Attorney General, and makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the claimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it is hereby ordered that the claim be dismissed without an award, and the case stricken from the docket.


text:
    (No. 1340
    Western Newspaper Union, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    Paul O’Donnell, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now comes Oscar E. Carlstrom, Attorney General, and makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the claimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it is hereby ordered that the claim be dismissed without an award and the case stricken from the docket.


text:
    Lewis H. McGarrah, 1343; Louis N. Shoff, 1344; Albert Goetz, William Salzenstein, and Ben Johnson, 1345-1346; Joseph C. Clancy, 1347; Ben Johnson, 1348; Martin L. Marek, 1349; George Vicary, 1350, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

      Rehearing denied December 17, 1930.

    Si-iubtleff & Niehaus, for claimants.
    Oscae E. Cablstbom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

As all of these claims are based upon the same general facts they have been consolidated for hearing’ and decision.

The declarations are all alike. Each charges that prior to June, 1924, the State, built a bridge across Kickapoo Creek on the Farmington Bo ad, and, on either side of the bridge and adjacent thereto, also built a dam or levee varying in height from 10 to 20 feet and of the total length of 700 feet; that the construction of the levee prevented the water from flowing* over that 700 feet of land in times of heavy rainfall and so backed the water up in the creek as to cause it to overflow the banks of the creek and inundate the lands of claimant and destroy his crops; that on June 27, 1924, September 21, 1926, and May 18, 1927, unusual rainfalls fell in the neighborhood of the creek and the land of claimant was overflowed on each occasion and his growing crops destroyed. Claimants are asking for awards for the following sums: Vicary for $14,784.00; McGarrah for $584.00; Shoff for $873.60; Goetz for $23,324.00; Clancy for $1,459.00; Salzenstein for $11,662.00; Johnson for $10,722.00; Marek for $4,998.00, a total of $68,406.60.

The bridge and the so-called levee or dam mentioned in the declarations are part of State Bond Issue Route No. 8, and the levee is the fill constructed across the low lands adjacent to Kickapoo Creek. This fill instead of being from 10 to 20 feet, as charged in the declarations, is shown by the evidence to be not to exceed 8 feet at its highest point. The lands of. claimants were all subject to overflow by Kickapoo Creek in times of heavy rainfall before this fill on Route No. 8 was built. But claimants contend that its construction retarded the flow of the water over the lands lying on the lower side of the fill and caused it to stay on their lands longer than it otherwise would have done, thereby causing them to lose their crops in the years, 1924, 1926 and 1927.

State Route No. 8, is one of the public highways improved by the State in the construction of the State wide system of durable hard surfaced roads. In constructing these roads the State exercised its governmental functions — acted in its capacity of sovereign. When the State acts in its sovereign capacity it does not submit its actions to the judgments of courts, and is not liable for the torts or negligence of its agents. (Kinnare v. City of Chicago, 171 Ill. 332.) It follows that if the wrongs complained of were committed by the agents of the State, the State is not liable for the damages thereby caused. This is not a new doctrine but has been the long established law in Illinois. It has uniformly been held in this State that sub-divisions of the State for governmental purposes, such as towns and counties,, are not liable for damages caused by agents of such sub-divisions in the performance of their duties — that such damages can be recovered from the individuals only whose acts cause the injury. The exemption of the municipality from liability is based on the grounds that it is a sub-division of the State for governmental purposes — a mere agency of the State. Among the many cases announcing this rule are the following: Town of Waltham v. Kemper, 55 Ill. 346; Elmore v. Drainage Comrs. 135 Ill. 269; Symonds v. Clay County, 71 Ill. 355; Town of Odell v. Schroeder, 58 Ill. 353; Wilcox v. City of Chicago, 107 Ill. 334; Nagle v. Wakey, 161 Ill. 387.

It follows that unless theré is a statute making the State, or a sub-division thereof for governmental purposes, liable for damages caused by the agents of the State or such subdivisions no recovery can be had against the State or such sub-divisions for damages caused by such agents, but the remedy is against the agents themselves. If the public road in question had been constructed just as it was by the town in which it is located the town would not be liable for the damages claimants allege its construction has caused them, in the absence of a statute making it so liable. Claimants have not cited any statute making the State liable for these alleged damages, and there is none.

Claimants have cited cases from other jurisdictions but they are not authority in this State where the contrary rule is established. Claimants have also cited many cases holding cities and villages and corporations liable for damages caused by the acts of their agents, but such cases have no application to actions against the State, or a sub-division of the State for governmental purposes.

If the Legislature in providing for the construction of the State wide system of durable hard surfaced roads had intended the State should pay such damages caused by the construction thereof as claimants are asking, it would undoubtedly have enacted a law to that effect. Certainly it did not intend to clothe this court with that power. This court can only allow claims against the State where there is a legal liability of the State to pay, and the State not being legally liable for the alleged damages of claimants, no awards can be made for them.

The claims are all denied and the cases dismissed.

On December 17, 1930, upon petition for rehearing the following additional opinion was filed:

Claimant in these cases have filed a petition for rehearing. The petition is but a reargument of the facts and principles of law urged by them in their original briefs in support of their claims, all of which were considered by the court in arriving at its conclusions. We find no reason for changing the view;s expressed in the opinion filed and the petition is denied.

On January 13, 1931, upon motion to vacate orders previously entered, the following additional opinion was filed:

This cause coming on to be heard upon motion of claimants to set aside and vacate its order entered December 17, 1930 denying petition for rehearing and the further motion to reconsider the petition for rehearing and the Court being' fully advised in the premises and it appearing that there is no reason why said motion should be granted, it is therefore considered that said motion be and the same is hereby denied.


text:
    (No. 1352
    American Can Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1930.

    Paul 0 ’Donnell, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now comes Oscar E. Carlstrom, Attorney General, and makes his motion for dismissal, pursuant to an order to show cause entered by this court on the 13th day of November, A. D. 1930, wherein the claimant was ordered to show cause on or before December 3rd, 1930, why this case should not be dismissed for want of prosecution.

And it appearing to the court that cause has not been shown by claimant in accordance with said order, it is hereby ordered that the claim be dismissed without an award and the case stricken from the docket.