text:
    (No. 1363
    Child’s, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1929.

      Rehearing denied June 26, 1929.

    Paul 0 ’Donnell, 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 the refund of $7,654.03 initial fees and franchise taxes paid as follows:

April, 1924, initial fee.................. $1,819.60
April, 1924, franchise tax.....t......... $2,426.13
July, 1925, franchise tax................ $1,776.30
July, 1926, franchise tax................ $1,632.00

Claimant is a foreign corporation. Since these fees and taxes were paid the Supreme Court, in a suit to which claimant was not a party, has held the law under which they were paid unconstitutional. Claimant now asks for an award against the State for the amount of fees and taxes paid on the ground that the State had no legal right to collect them.

It has been stipulated by the Attorney General and attorney for claimant that within thirty days after the payments made in April, 1924, and July, 1925, were paid to the Secretary of State claimant filed a bill in equity in the Circuit Court of Sangamon County, and secured a temporary injunction restraining the Secretary from paying said fees and taxes into the State Treasury, alleging the law under which the fees and taxes were paid was unconstitutional and. said fees and taxes were not legally due to the State; that the Attorney General filed a demurrer to the bill in each case and the bill was dismissed for want of equity; that no appeal was taken from the decree dismissing the bill in either of the cases; that all the cases were decided before the Supreme Court had held the law unconstitutional; and that the decree in each case was entered on the theory that the law was valid and constitutional.

It is a fundamental principle of our jurisprudence that a judgment or decree of a court having jurisdiction of the subject matter and parties in a cause before it is binding upon the parties until reversed or set aside. This rule is so well known that the citation of authorities is not necessary.

Claimant brought its suits in equity in the. Circuit Court of Sangamon County for the same relief it is asking here, i. e., for an order for the refund of these fees and taxes on the ground the law under which they were collected was unconstitutional. That court held against claimant and refused to order the moneys refunded to it. If claimant felt itself aggrieved or wronged by those decisions, the law gave it the right to have them reviewed by the Supreme Court of the State. Claimant chose not to exercise that right but acquiesced in the decrees. It is therefore bound by them. This court has no appellate jurisdiction and cannot review or set aside the orders and decrees of the Circuit Courts of the State. To grant the relief asked for in this case would, in effect, set aside and reverse the decrees entered in those cases by the Circuit Court of Sangamon County. This court has no power to do that directly or indirectly.

"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 moneys for the State paid under protest shall hold such moneys thirty days and upon the expiration of that period deposit the same with the State Treasurer unless the party making such payment shall within such 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. This provision of the law gave claimant the right to have the validity of the tax paid in 1926 determined by a court of general jurisdiction, and to secure a decree for the repayment of it to claimant if the court found it had been illegally collected. Claimant elected not to avail itself of the right given by this statute and permitted the tax to be’ paid into the State Treasury. Having made its election, it is bound by it. Where a claimant had a remedy in a court of general jurisdiction and failed to pursue such remedy this court will not take jurisdiction. (Moline Plow Co. v. State, 5 Ct. Cl. 277.)

The claim is therefore denied and the case dismissed.

On June 26, 1929, upon petition for rehearing the following additional opinion was filed:

The original opinion in this case was filed May 9, 1929, and by verbal agreement of parties the petition for rehearing was submitted on the original record. There is nothing in the original record in this case that will justify this court in granting a rehearing and the petition is therefore denied.


source: Caselaw Access Project

author: Mr. JusTicE Thomas

license: Public Domain

text:
    Frank Theiler, 1413; Julia Cosgrave, 1414; Henry McMillen, 1415; M. E. Spafford, 1416; Frank Hillock, 1417; Fred Shaw, 1450, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 25, 1929.

      Rehearing denied June 26, 1929.

    Joseph Keig, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.-
   Mr. JusTicE Thomas

delivered the opinion of the court:

By stipulation of the parties these cases are consolidated.

Claimants’ demands are for damages alleged to have been caused by flooding their lands with water from the Illinois and Michigan canal. The declarations are all substantially alike. The first count charges that the employees of the State carelessly and negligently permitted the waters in the canal to rise to such heights that they overflowed and weakened the banks of the canal so that the banks broke and thereby overflowed the lands of claimants. The second count charges that the officers and employees of the State charged with the control and operation of the canal permitted the banks of the canal to become so weak and deteriorated that when on the 4th day of June, 1927, there was a heavy rainfall the banks by reason of said weakened and deteriorated condition could not hold the waters which flowed into the canal and said waters burst and broke the weakened and deteriorated banks and overflowed the lands of claimants.

It has been often held by this court, the courts of other states, and the federal courts, that the State is not liable for damages caused by the negligence of its officers, agents, employees or servants in the absence of a statute making it so liable. In the operation of the Illinois and Michigan canal the State is exercising its sovereign powers, and it does not permit these powers to be questioned by any tribunal. It can only act through or by its officers and employees, and if such officers or employees perform their duties in a negligent manner the negligence is the negligence of the officers or employees and not of the State. In Kinnare v. City of Chicago, 171 Ill. 332, the rule is stated by our Supreme Court, at page 335, as follows: “The State acts in its sovereign capacity, and does not submit its action to the judgment of courts and is not liable for the torts or negligence of its agents, and a corporation created by the State as a mere agency for the more efficient exercise of governmental functions is likewise exempted from the obligation to respond in damages, as master, for negligent acts of its servants to the same extent as is the State itself, unless such liability is expressly provided by the statute creating such agency.” See also Cooney v. Town of Hartland, 95 Ill. 516; Jorgensen v. State, 2 Ct. Cl. 134; Braun v. State, No. 1281, opinion filed Oct. 28, 1928; Peterson v. State, No. 1127, opinion filed Sept. 11, 1928. Under this rule complainants cannot maintain actions against the State for the negligence alleged in their declarations.

We have read the abstracts of the evidence filed in these cases and find that the claimants have wholly failed to prove any negligence on the part of the employees of the State in relation to the canal in question. The mere fact that the canal overflowed its banks or that a washout in the bank occurred is not standing alone proof of negligence. There is no evidence of failure on the part of the employees to do all they could be reasonably expected to do" under the circumstances that existed. Even if the State were liable for the negligence of its employees claimants would have to prove the break in the canal bank was caused by their negligence. This they have wholly failed to do. The break was caused by an exceptionally heavy rainfall — a cloudburst, as some of the witnesses described it. Even a private corporation operating the canal would not be liable for damages occasioned an adjacent landowner by extraordinary floods which could not be foreseen.

The portion of the Illinois and Michigan canal involved in these claims is a part of the Illinois waterway and is under the jurisdiction of the Department of Public Works and Buildings. Illinois Water Way Act. Smith-Hurd 1927 Statutes, pp. 221-226. Section 24 of that Act provides that all claims for damages shall be filed with the Department of Public Works and Buildings, and sets forth in detail the procedure to be followed in determining whether damages shall be allowed, how the amount shall be ascertained and fixed, and the manner of payment.

In no view of the case are claimants entitled to an award by this court.

The claims are denied and the cases dismissed.

On June 26, 1929, upon petition for rehearing the following additional opinion was filed:

Claimants in these cases have filed a petition for a rehearing. The petition in fact is but a reargument of the questions involved in the cases. In the opinion filed in. these cases we not only followed the consistent holding of this court that the State is not liable for the negligence of its agents, but we specifically found from the evidence submitted that claimants had wholly failed to prove negligence on the part of the employees of the State. We have again examined the evidence on that question and are fully satisfied that our finding in that regard is correct. The petition for a rehearing is denied and the order denying awards and dismissing the claims is ordered to stand as the final judgment of the court.


author: Mr. Justice Thomas

text:
    (No. 1455
    Continental National Bank and Trust Company of Chicago, as Trustee Under the Last Will and Testament of Samuel C. Scotten, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 25, 1929.

      Rehearing denied June 26, 1929.

    Mayer, Meyer, Austrian & Platt, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

On August 5, 1920, Samuel 0. Scotten, a resident of the City of Chicago Cook county, Illinois, died testate. On or about February 5, 1921, an order was entered by the County Judge of Cook county, Illinois, assessing the inheritance tax to the State from the estate of said decedent and fixing the tax at $48,334.35. Said amount of tax less five percent discount allowed to said estate for payment of a tax within six months from date of death of decedent, of a net amount of tax amounting to $45,917.63, was paid to the Comity Treasurer of Cook County on February 4, 1921.

After providing for the payment of debts and funeral expenses, decedent bequeathed and devised the residue and remainder of his estate in trust for the benefit of his three daughters; by the second clause of the will it is provided that when thd youngest surviving daughter arrived at the age of forty years, one-half of the trust estate should be equally divided among the said daughters, and the remaining half of the trust estate should remain undistributed for a period of ten years thereafter. Said will also provided that if all of testator’s said daughters should die during the period of the trust, leaving no child or descendants of a child surviving, said trust estate should then go to the heirs at law and next of kin of the testator. Because of this provision in said will, the trust estate was assessed by the County Judge under the provisions of section 25 of the Inheritance Tax Act, which provides for the assessment'of the trust estate in view of these contingencies at the highest possible rate.

After the arrival of the youngest, daughter of "Josephine Scotten, at the age of forty years, an order for reassessment was secured. It appears from a certified copy of said order that the tax as reassessed was found to be $28,518.27. Subtracting from this the five percent discount a net amount of $27,092.37 was arrived at as the tax. Subtracting this amount from the $45,917.63 paid on February, 1921, there is a sum of $18,825.26 which the plaintiff claims should be refunded to him.

The Inheritance Tax Act is a code covering the whole subject of such taxes, their assessment, payment, and the method of securing the refund of taxes erroneously paid. Sections 8 and 10 of the Act provide the methods of having taxes erroneously paid, refunded. If claimants can bring themselves within the provisions of those sections they have a forum where their cause can be heard. It has been held in the case “Honore Palmer et al. v. State of Illinois,” No. 474, that this Court has no jurisdiction to decide cases provided for by those sections.

The award is therefore denied and the cause dismissed.

On June 26, 1929, upon petition for rehearing the following additional opinion was filed:

The original opinion was filed in this case on April 25, 1929. Notice of petition for rehearing was filed May 8th, 1929, and petition for rehearing was filed by claimant on May 20th, 1929. There is nothing in the petition for rehearing that was not taken into consideration in the original opinion in this case. Therefore, the petition for rehearing is denied.


author: Mr. Chief Justice Clarity

text:
    (No. 792
    Walter E. Fish, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1929.

    Neil Kerr, 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 cause coming on to be heard upon motion of the Attorney General, to show cause why this cause should not be dismissed for want of prosecution, and the court being fully advised in the premises, it is thereupon, this 10th day of September, 1929, ordered that the said cause be and the same is hereby dismissed for want of prosecution.


text:
    (No. 793
    Ida Fish, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1929.

    Neil Kerr, 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 cause coming on to be heard upon motion of the Attorney General to show cause why this cause should not be dismissed for want of prosecution, and the court being fully advised in the premises, it is thereupon, this 10th day of September, 1929, ordered that the said cause be and the same is hereby dismissed for want of prosecution.


text:
    (No. 880
    I. F. Layton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1929.

    McGinnis & McGinnis, for claimant.
    OfeCAB E. Carlstbom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This cause coming on to be heard upon motion of the Attorney General to show cause why this cause should not be dismissed for want of prosecution, and the court being fully advised in the premises, it is thereupon, this 10th day of September, 1929, ordered that the said cause be and the same is hereby dismissed for want of prosecution.


author: Mr. Chief-Justice Clarity

text:
    (No. 910
    Helen Wilken, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1929.

    L. H. Vogel, for claimant.
    Oscar E. Carlstbom, Attorney General; Roy" D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief-Justice Clarity

delivered the opinion of the court:

This cause coming on to be heard upon motion of the Attorney General to show cause why this cause should not be' dismissed for want of prosecution, and the court being fully advised in the premises^ it is thereupon, this 10th day of September, 1929, ordered that the said cause be and the same is hereby dismissed for want of prosecution.


text:
    (No. 968
    Laverne McPherson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1929.

    Virgil M. Jacoby, 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 cause coming on to be heard upon motion of the Attorney General to show cause why this cause should not be dismissed for want of prosecution, and the court being fully advised in the premises, it is thereupon, this 10th day of September, 1929, ordered that the said cause be and the same is hereby dismissed for want of prosecution.


text:
    (No. 1021
    W. S. Anderson, R. S. Berry, J. J. Dunnegan, A. W. Murphy, E. A. Reed, and E. S. Welch, Co-Partners, Doing Business as J. J. Dunnegan Construction Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1929.

    Pringle & Fearing, for claimant.
    Oscar E. Carlstrom, Attorney General; S. S. DuHamel, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

On the 14th day of June, 1923, claimants, a co-partnership doing business as J. J. Dunnegan Construction Co., entered into a contract with the State of Illinois to construct the portion of State Bond Issue Route No. 18 known as Section 12 Project No. 59 for the total sum of $161,826.10. The contract was awarded to claimants upon a bid which they had previously submitted. After their bid had been accepted claimants leased a gravel pit and installed machinery thereat for the purpose of removing and preparing the gravel for use in .the construction of the work awarded them. Samples of this gravel were submitted to the State authorities having the supervision of the construction of the work and claimants were notified that it was not satisfactory.

The contract was executed and about two miles of the road were constructed before claimants began to use any gravel from the pit they had leased, the machinery for handling the gravel at the pit not being installed ready for work until the latter part of July. After this machinery was installed ■claimants began using the gravel from this pit. Soon after they began to use this gravel the State inspectors discovered that it was unsuitable and did not meet the requirements of the specifications. In an endeavor to make it comply with the specifications changes in the method of treating it were made but were unsuccessful. On August 28, 1923, after 3,835 linear feet of pavement had been constructed with it, the State officials notified claimants that no more of that gravel would he accepted as it was not of the kind and quality required by the specifications. Claimants then quit using gravel from that pit and finished the work with gravel procured from other sources, and when it was completed were paid in accordance with the terms of their contract.

Claimants have filed this suit against the State for $21,-954.58 damages, which sum they allege represents the difference in the actual cost of completing the work under their contract and what the actual cost would have been had the gravel from this pit been accepted by the State.

The contract of claimants with the State is attached to the declaration and made a part thereof. This contract provides: “That for and in consideration of the payments and agreements mentioned in the proposal hereto attached to be made and performed by the party of the first part, and according to the terms expressed in the bond referring to these presents, the party of the second part agrees with said party of the first part at his own proper cost and expense to do all the work, furnish all materials, and all labor necessary to do the work in accordance with the plans and specifications hereinafter described, and in full compliance with all specifications hereinafter described, and in full compliance with all of the terms of this agreement and the requirements of the engineer under it. And it is also understood and agreed that the Notice .to Contractors, Proposal, Bond, Specifications, and Plans hereto attached or hereinafter referred to, are all essential documents of this contract and are a part hereof.” To this contract is attached the Notice to Contractors, the Proposal of Claimants, and the Specifications for the work. The specifications provide that tests of material samples shall be made by the Division of Highways of.the Department of Public Works and Buildings, that samples of materials may be taken by the Inspectors of the Division of Highways from time to time, that the contractor shall furnish such samples when requested by the Inspectors, and that “the approval of preliminary samples shall not be considered as a guarantee of acceptance of all materials from the same source, and it shall be understood that all materials delivered on the work and which do not meet the requirements of these specifications may be rejected by the engineer.” The specifications further provide that the Inspector shall see that the provisions of the contract and specifications are fulfilled by the Contractor and, in case they are not, report the same to the Engineer; that instructions given the contractor by the Inspector shall in no wise be construed as releasing the contractor from the proper fulfillment of the terms of the contract as determined by the Engineer; that the Engineer shall act as referee in all questions arising under the contract between the parties and his decision shall be final and binding upon both; that insufficient, imperfect or damaged work or material when pointed out to the contractor by the Engineer shall be immediately remedied and made good or removed and replaced to conform to the plans and specifications; that the oinmission of the Engineer to disapprove or reject defective work or material during construction shall not be deemed an acceptance of such work or material nor be construed as in any way releasing the contractor from making good any defective work or material so as to conform to the plans and specifications; and that “it is understood by the contractor that the compensation as provided in the contract is accepted as full payment for furnishing of materials, labor, tools and equipment and for performing the work contemplated and embraced under the contract; also, for all loss or damages arising out of the nature of the work or from the action of the elements, or from any unforeseen difficulties or obstructions which may arise or be encountered during the prosecution of the work, and for all risks of every description connected with the prosecution of the work; also for any expense incurred by or in consequence of the suspension or discontinuance of said work as herein specified, or for any infringement of patent, trade-mark or copyright.” The specifications provide the payment shall be of concrete and that the coarse aggregate of the concrete shall consist of particles of clean, hard, tough, durable rock in the form of either gravel or crushed material and shall contain no shale, slate, coal, ochre or other materials which easily disintegrate, shall be free from vegetable or other deleterious matter and contain no soft, thin or elongated pieces; that gravel used for coarse aggregate shall show high resistance to abrasion, and no gravel which in the opinion of the Engineer does not show wearing qualities at least equal to crushed stone having a French coefficient of wear of 6 shall be used.

These provisions of the contract were all known to claimants long before they leased the gravel pit. In their bid or proposal they recite they have examined the specifications, including all special provisions, and form of contract, and are thoroughly familiar with them. Having executed this contract with these provisions in it they are bound by them.

When claimants began to use the gravel from the pit they had leased it developed that it had ochre and clay balls in it, that it was too soft and not of the quality required by the ■specifications. The State officials permitted claimants to endeavor to remove the objections to the gravel and various plans were tried in their endeavor to do so, but none of them was successful. That went on till after the middle of August. Finally the Chief Highway Engineer, Mr. Older, went out to the place and examined the paving work already done and the gravel being used from the pit. After this examinátion and a consultation with the assistant engineers the Chief Engineer had claimants notified the gravel was unsuitable for use in the paving work and that no more of it would be accepted. Under the terms of the contract it was the duty of the inspectors and engineers to see that the work was done in accordance with the specifications. If these officers had permitted this gravel to be used after they had found it unsuitable they would have been guilty of culpable neglect of duty. Even had they consented to the use of gravel not up to the requirement of the specifications such consent would not have bound the State, the contract specifically providing it should not do so. It is not claimed that the inspectors and engineers acted either arbitrarily or corruptly in refusing to accept any more of the gravel, but simply that their action lessened the profits which claimants would otherwise have made. A sufficient answer to that is 'that they are not entitled to profits made by the use of bad material. Claimants admit the completed job was accepted and paid for by the State. That being true they are entitled to no more compensation on account of that contract.

Section 19 of Article 4 of the Construction provides: ‘ ‘ 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,” etc. This language is clear and unambiguous and its purpose cannot be misunderstood. It was adopted by the people for their protection against claims such as this. “Extra compensation is a payment or allowance in excess of that which was fixed by law or contract when the services were rendered.” (Porter v. Loehr, 332 Ill. 353). Claimants have been paid all their contract called for. They performed no work other than that which their contract required them to perform, and this court has no power to award them extra compensation for that work.

The claim is therefore denied and the case dismissed.


text:
    Charles Bowermaster, 1421; Herman Hoppe, 1422; Enock Enockson, 1423; Mark Stuart, 1424; James A. Mitchell, 1425; Fred Stevenson, and John Stevenson, 1426; Elizabeth Wirtz, 1427; George T. Koenig, Trustee in Bankruptcy in the Matter of William Jamison, Bankrupt, 1428; Howard E. Stuart, 1431; Claimants, vs. State of Illinois, Respondents.

      Opinion filed May 9, 1929.

      Rehearing denied September 10. 1929.

    Scanlan & Massieon, for claimants.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

For the reasons set forth in the opinion, filed in this court April 25th, 1929, in the case of Frank Theiler v. The State of Illinois, No. 1413, Julia Cosgrave v. State of Illinois, No. 1414, Henry McMillan v. State of Illinois, No. 1415, M. E. Spafford v. State of Illinois, No. 1416, Frank Hillock v. State of Illinois, No. 1417, and Fred Shaw v. State of Illinois, No. 1450,. these claims are denied.

On September 10, 1929, upon petition for rehearing, the following additional opinion was filed:

The petition for a rehearing in these cases is but a re-argument of the questions involved in them, and points out no fact or principle of law that was not fully considered by the court in arriving at its decision. We have, however, again carefully read the abstract and brief of claimants and find no reason for changing our views. The petition for a rehearing is therefore denied in each of the cases.


text:
    (No. 1438
    Louise B. Hill, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1929.

      Rehearing denied September 10, 1929.

    Hibbs and Pool, for claimant.
    Oscar E. Carlstrom, Attorney General; Rot D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant’s demand is for damages alleged to have been caused to her property by the construction of an embankment on the right of way of the Illinois and Michigan canal in such a negligent and improper manner as to cast the water back upon the premises of the claimant. The first count charges that her premises were flooded on September 23, 1926, and sustained damages to the amount of $359.70. The second count charges that they were again flooded May 27, 1927, and sustained damages to the amount of $252.00.

The cause of action is based upon negligence. The State is not liable for the negligent acts and conduct of its agents, employees or officers when acting in its sovereign capacity. In constructing and operating the Illinois and Michigan canal the State is exercising its sovereign powers. In their performance it can only act through or by its officers and employees, and if such officers or employees perform the duties in a negligent manner, the negligence is the negligence of the officers and employees and not of the State. Kinnare v. City of Chicago, 17 Ill. 332; Cooney v. Town of Hartland, 95 Ill. 516; Jorgenson v. State, 2 0. 0.134. See also opinions of this court in Braun v. State, No. 1281, filed October 28, 1928; Peterson v. State, No. 1127, filed September 11, 1928; Thieler v. State, No. 1413, filed April 25, 1929. Under the rule announced in these cases claimant cannot maintain her action against the State for the negligence alleged in her declaration.

This court has no jurisdiction to hear claims against the State for damages alleged to have been caused by the construction and operation of the Illinois and Michigan canal. This canal is a part of the Illinois waterway and is under the jurisdiction of the Department of Public Works and Buildings. Illinois Waterway Act, Smith-Hurd 1927 Statutes, pp. 221-226. Section 24 of that Act provides that all claims for damages shall be filed with the Department of Public Works and Buildings, and sets forth in detail the procedure to be followed in determining whether damages shall be allowed, how the amount shall be ascertained and fixed, and the method of payment. Inasmuch as the G-eneral Assembly has seen fit to provide that claims for damages arising out of the construction of the Illinois Waterway shall be filed with the Department of Public Works and Buildings and heard by it, this court has no jurisdiction.

The claim is therefore denied and the case dismissed.

On September 10, 1929, upon petition for rehearing, the following additional opinion was filed:

The petition for rehearing was filed by claimant on June 1, 1929. She sets up in her petition that the issues for rehearing are the same in this case as in cases Number 1421 to Number 1428, both inclusive, and Number 1431, and adopts the petition in those cases as her petition in this one.

The court has considered the petitions for rehearing in the above cited cases in this case, and, after full consideration of the petitions in the cases cited, has arrived at the same conclusion in this case as in those cases and the petition for a rehearing is denied.


text:
    (No. 1164
    Victoria Rapinac, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 25, 1929.

      Rehearing denied September 10, 1929.

    John G. Friedmeyer, for claimant.
    Oscar. E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim brought to recover compensation for injuries sustained by a young lady who was a passenger in an automobile driven by one James De Rose, between Havana and Mason City, Illinois, on Detour Route No. 3, on the 15th day of August, 1926.

The respondent submits an argument in defense, setting forth the fact that the State of Illinois did not take control of this road and states in his brief, the following section of the statute:

“That the public highways upon which said roads are being constructed shall, during the construction period and continuously thereafter, be under the jurisdiction and control of said Department of Public Works and Buildings, but the duty of maintaining such highways shall rest on the local authorities until said construction work has been completed.” Section 277, Chapter 121, Smith-Hurd’s Revised Statutes 1927.

The court is of the opinion that the contention of the respondent is correct. While the accident is regretable, yet, bearing in mind, the citation referred to, no damages can be allowed, either as a matter of law, or as a matter of equity and good conscience.

Therefore, it is recommended that the claim be denied and the case dismissed.

On September 10, 1929, upon petition for rehearing the following additional opinion was filed:

This matter coming on to be heard upon the petition for rehearing and the court being fully advised in the premises, finds that there is no cause shown for a rehearing.

Therefore the petition for a rehearing is denied.


text:
    (No. 868
    H. H. Hall Construction Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 7, 1929.

    Joseph A. Connell, for claimant.
    Oscar E. Carlstrom, Attorney General, S. S. DuHamel, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant is a corporation organized under the laws ' of Illinois and authorized' by its charter to construct public highways and to do other construction work and exercise such rights, powers and privileges as are incidental thereto. Pursuant to its bid of November 20, 1921, a contract was thereafter entered into between claimant and the Department of Public Works and Buildings of Illinois whereby claimant agreed to construct sections 1, 3, 4, 5, 6, 7 and 8 of State Bond Issue Route No. 2 and sections 5, 6, 7, 8, 9 and 10 of State Bond Issue Route No. 15, aggregating 67.75 miles. The road was to be surfaced with a concrete pavement 18 feet wide and was to be constructed according to the proposals, plans and specifications therefor which were made a part of the contract between claimant and the State. The prices for which claimant agreed to do the work aggregated approximately $1,551,000.00, and it was required to and did give a bond for $1,500,000.00 conditioned for the construction of the work according to the terms of the contract. The contract provided the work should be completed during the year 1922, and that claimant should be paid upon estimates made by the engineers as the work progressed. Payments were made from time to time and when the work was finally completed in the. latter part of 1923 it was accepted by the State and claimant was paid in full the balance due.

Claimant admits it has been paid the full amount of the price for which it agreed to do the work. But it contends the State was to furnish all cement necessary to the construction of the work and failed to do so as rapidly as it was needed; that such failure prevented claimant from completing the work in 1922 and compelled it to continue the work through the construction season of 1923 thereby causing it to have to pay increased prices for labor, materials and supplies and to maintain its construction and business organization for a longer period than would have been necessary had the cement been furnished at the times it was needed; and that the neglect of the State to furnish cement at the times it was needed caused claimant to lay out and expend, over and above what would have been occasioned if the State had furnished the cement as required, for labor $192,234.40, for stone $5,453.04, for sand $5,093.89, for general expenses and clerks’ wages $28,972.08, for leases on camp sites $1,609.00, for additional overhead charges $39,502.96, for depreciation and loss of rentals on use of equipment $155,158.58. For these items aggregating the sum of $428,023.95 claimant has filed its demand for an award against the State.

The contract is not in the record but it is stated by counsel representing both the claimant and the State that the following are its provisions applicable to this case:

“Cement Furnished. When so indicated in the ‘Notice to Contractors’, cement (not in the sacks) will be furnished the Contractor F. O. B. any steam railroad station in the County by the Department of Public Works and Buildings for the work in hand without charge, under the following conditions:
“As the progress of the work warrants, shipments of cenjent shall he ordered by .the Contractor, upon written authorization by the Department of Public Works and Buildings, from the Cement Company with whom contract has been entered into by said Department for furnishing cement for the particular work in question.
“It is expressly understood by the Contractor that no responsibility is assumed by the Department of Public Works and Buildings for the delivery of the cement at the time desired, and that no extra compensation will be allowed the contractor for delays.”

It is manifest from these provisions of the contract that the claimant and the State officials understood that delays might be caused by failure of the cement companies to make prompt deliveries, that the State assumed no responsibility for the delivery of cement, and would pay no extra compensation to claimant on account of such delays. Claimant, having voluntarily signed a contract containing these provisions, is bound by them. Their terms are clear and explicit and effectually bar any claim for an award against the State for damages occasioned by delays of the cement company in the delivery of cement.

Counsel for the State contend that even if the contract did not contain the above provisions claimant would still be barred from recovering an award in this case against the State. We think counsel are right in this contention. Section 19 of 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,” etc. This provision of the Constitution is mandatory and binding upon the legislature and all courts of the State. (Pachen Bros. v. State, No. 760, opinion filed Sept. 13, 1927.) Its language is clear and unambiguous and its purpose cannot be misunderstood. (Fergus v. Brady, 277 Ill. 272.) It was adopted by the people to protect themselves from the mischiefs and evils likely to arise out of claims such as this. (Dunnegan Construction Company v. State, No. 1021, opinion filed Sept. 10, 1929.) The contract in question fixed the compensation claimant was to receive for doing the work. The work has been completed and the compensation fully paid, and this court has no power to award extra compensation for that work. The claim is therefore denied and the case dismissed.


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    (No. 1091
    Otto Stein, Administrator of the Estate of Evelyn Stein, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 7, 1929.

    Sissman & Sissman, 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 brought to recover from the State of Illinois on account of the death by drowning of Evelyn Stein in a lagoon in Douglas Park in October, 1925, which park is under the jurisdiction of the West Chicago Park Commission.

It is alleged that there is some doubt whether the park system would be legally liable or not.

This Court has in former opinions expressed itself as to extending the liability of the State of Illinois in cases of similar nature, and the court is of the opinion that the Legislature of the State of Illinois did not intend to include in the act creating the Court of Claims any authority to obligate the State of Illinois, either as a matter of law or through equity and good conscience to assume obligations of this character. The court does not wish to discuss the position that the courts of general jurisdiction should take in this case, but this court is of the opinion that this case cannot be maintained in this court and therefore the demurrer filed by the Attorney General in behalf of the State of Illinois is hereby sustained.


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    Agnes C. Hollenbeck and William Hollenbeck, 1111; John Mitchell, 1112; Horace Severns, 1113; Andrew Parr, 1114, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 7, 1929.

    Alley Hunts and Scanlon & Massieon, for claimants.
    Oscar E. Carlstrom, Attorney General; Frank E. Eagle-ton, Assistant Attorney General, for respondent.
   Hr. Justice Thomas

delivered the opinion of the court:

By agreement these four cases have been consolidated for hearing, and decision.

The claims are for crops alleged to have been destroyed by the overflow of the Illinois and Michigan Canal on August 8, 1924, and it is charged that the overflow was the result of the carelessness and negligence of the agents and employees of the State in charge of the canal. The Attorney General has filed a demurrer to each of the declarations.

There has been much legislation in connection with this canal. From the earliest history of the State to the present there has been a continuous desire to secure a waterway connecting Lake Michigan with the Mississippi River. In 1822, Congress passed an Act authorizing the State of Illinois to survey and mark the route of the canal through the public lands of the United States. In 1827 Congress granted to the State approximately 300,000 acres of land in aid of the construction of this canal. Work on it was finally begun in 1836 and it was opened for navigation in 1848. It had cost up to that time about $6,000,000.00, and large sums were later expended in repairs and improvements. For a number of years after its completion, the canal carried large volumes of freight, and the tolls produced a large revenue for the State. But, with the development and extension of railroads the business of the canal decreased and its earnings became greatly diminished. This changed condition caused many people to fear that the canal would in time become a liability to the State — a financial burden that would have to be met by increased taxes. These questions led to much discussion in the constitutional convention of 1870, and after full debate that body included the following separate section which was later adopted by the people: “The Illinois and Michigan

Canal shall never be sold or leased until the specific proposition for the sale or lease thereof shall first have been submitted to a vote of the people of the State at a general election, and have been approved by a majority of all the votes polled at such election: The General Assembly shall never loan the credit of the State, or make appropriations from the treasury thereof, in aid of railroads or canals: Provided, that any surplus earnings of any canal may be appropriated for its enlargement or extension.” (Const. Separate Sec. 3.) It will be observed that this section prohibits the Legislature from making appropriations.from the State Treasury in aid of canals. Any appropriation to meet expenses or liabilities connected with or growing out of the operation of the canal would' be in aid of it. If the Illinois and Michigan Canal were a private company or corporation, and claimants were damaged in the manner they allege, such damages would be a liability of the canal, and an appropriation by the State to pay them would be “in aid of the canal.”

In Burke v. Snively, 208 Ill. 328, the construction of this section of the -Constitution was before the court. In 1903 the General Assembly made an appropriation of $50,000.00 per annum for the purpose of maintaining the canal in a navigable condition. Suit was brought against the canal commissioners, the State Treasurer and the Auditor of Public Accounts to restrain the Auditor from drawing warrants in favor of the commissioners for the sums appropriated and to ■enjoin the Treasurer from paying them. The trial court dismissed the bill. On appeal to the Supreme Court the Act was held to be in contravention of the above section of the Constitution, and in discussing the provision of the Section prohibiting appropriations in aid of canals (pp. 340-344) the court said: “The constitution of a State derives its force and authority from the vote of the people adopting it. For that reason, it is a general rule that in construing the provisions of a constitution the words employed therein shall be given the meaning which they bear in ordinary use among the people. The natural and ordinary meaning of the words is to be accepted except where a word is used the meaning whereof is established by statute or by judicial construction. The word “aid,” employed in the body of the sentence, has no such established meaning, or any technical meaning different from that given it by the lexicographers as the meaning thereof as understood generally among men. 'In ordinary acceptation it means to help to support; to assist; to sustain; to succor or to relieve; and so it is defined by Mr. Webster. The inhibition against making appropriations from the treasury of the State in “aid” of canals, if the word “aid” be-given its natural and ordinary meaning, would deny to the Legislature the power to appropriate money from the treasury for any of the purposes of the Illinois and Michigan Canal here asked to be enjoined, if the word “canals,” used in the body of the sentence, includes the Illinois and Michigan Canal.

“If the proviso had not been appended to the body of the sentence some weight and force would attach to the argument that the general word “canals,” found in the .body of the sentence, had no reference to the canal owned by the State; that it was absurd to speak of the State loaning its credit to itself, as the owner of the Illinois and Michigan Canal, and that a prohibition against the application of the public moneys in aid of canals should not, in reason, be understood to forbid the application by the State of moneys from the treasury to defray the necessary expenses of operating, repairing, maintaining and preserving a canal which belonged to the State: that under the correct interpretation and construction the prohibition was against lending the credit of the State or appropriating the moneys of the State in aid of railroads or canals, which individuals or private corporations owned or were preparing to construct as the business enterprises of private proprietors. The true constitutional intent can, however, only be ascertained by the careful consideration of the entire sentence, — the body thereof and the proviso, — for one of the offices of a proviso is to qualify the generality of the body of the sentence of which it is a part, though it can have no potency to enlarge the scope or force of the enactment. (Sarah v. Borders, 4 Scam. 341; Huddleston v. Francis, 124 Ill. 196; In re Day, 181 id. 73.) The office intended to be served by the proviso here in review is clear. Manifestly the proviso, though the words “any canals” are employed therein, had and has reference only to the canal that was owned by the State, — the Illinois and Michigan Canal. The State had the right to control and direct the application of the earnings of that canal, and of no other. Under the statutes then in force the “surplus earnings” of the Illinois and Michigan Canal were required to be paid into the treasury of the State, and the State had power to permit such surplus earnings to be drawn out of its treasury and applied to the extension or enlargement of the canal owned by the State. The State had no power to control the manner in which the surplus earnings of any canal other than the Illinois and Michigan Canal should be expended. The State owned but one canal, — the Illinois and Michigan Canal, — had power to control the surplus earnings of but that one canal, and the proviso had reference only to that canal. The words “any canal” were no doubt used in the proviso in an excess of caution, in order that the proviso might apply as well to any other canal of which the State might possibly afterward become the owner, in order the restriction might be general and uniform, but it could in no contingency apply to a canal not owned by the State. The body of the sentence (the proviso being excluded) prohibits the appropriation of any of the public moneys “In aid” of canals generally. The proviso appended thereto authorizes the appropriation of the “surplus earnings” of the Illinois and Michigan Canal to the enlargement and extension of that waterway. The body of the sentence is general in its terms and its objects, and prohibits the appropriation of any of the public moneys in aid of any and all canals. The proviso qualifies the generality of this prohibition by excepting therefrom any moneys which have come into the treasury of the State from the “surplus earnings” of the Illinois and Michigan Canal, and by providing that any such surplus earnings may be devoted by the General Assembly to the purposes of enlarging or extending that canal. The rule of construction in such instances is that the proviso is to be strictly construed, and that it takes no case out of the prohibition declared in the body of the. sentence other than the precise case that is included in the terms of the proviso.

“The proviso to the sentence of the Constitution here under consideration carves a special exception, only, out of the general inhibition in full force and vigor, save only to the extent it is qualified by the exception of the proviso. The proviso therefore takes out of the general inhibition that which, but for the proviso, would have remained within such general inhibition, and leaves within the general inhibition found in the body of the sentence all that is not specifically taken out by the terms of the proviso, strictly construed. The inhibition against the application of the public moneys that had been or should- be gathered into the treasury of the State by taxation of the property of tax-payers of the State, to the purpose of “aiding” the canal, was not qualified by the proviso or in any manner affected thereby. On the contrary, the presence of the proviso demonstrates that it was the understanding of the framers of the constitution that the body of the sentence prohibited the appropriation of the public money in aid of the Illinois and Michigan Canal, and that the proviso was added for the purpose of so qualifying that prohibition that it might be lawful to use the “surplus earnings” of that canal which should come into the treasury in enlarging or extending it, if the General Assembly should ever deem that course to be desirable. Therefore, it seems to us to be so clear as to be beyond doubt or debate, that the proviso was annexed to the sentence for the reason it was the understanding of the convention that the word “canals,” employed in the body of the sentence, was intended to include the Illinois and Michigan Canal, and that the body of the sentence, in the absence of the proviso thereto, would absolutely inhibit the appropriation of any of the public moneys in aid of that canal, and that as to the Illinois and Michigan Canal an exception to the general inhibition was intended, namely, that appropriations of the surplus earnings of the Illinois and Michigan Canal might be made for the purpose of extending or enlarging it. Such being the object intended to be secured by the addition of the proviso, it is unmistakable that it was the understanding of the framers of the Constitution that the body of the sentence absolutely inhibited the appropriations of the public moneys in aid of or for any of the purposes of the Illinois and Michigan Canal and that the proviso was added to qualify, in a degree, the generality of the language of the body of the sentence and to limit the inhibition against the appropriation of any money from the treasury of the State to the purposes of or in aid of the canal, to such an extent as would leave it within the power of the Legislature to appropriate the moneys which had come into the treasury from the surplus earnings o of the canal to the extension or enlargement of that waterway.

“The constitutional intent, then, to be gathered from the entire provision is, that the power to sell or lease the canal shall remain with the people: that the control and management thereof, and the operation of the same, if that shall seem wise and best, should be possessed by the Legislature, to which power of management, control and operation there was attached an inhibition against the application of the public moneys which should be derived from taxation of the property of the citizens of the State to any of the purposes of the canal, but that any moneys which should be paid into the treasury of the State as surplus earnings of the canal might be drawn therefrom and applied to the extension or enlargement of the canal. The constitutional intent was and is, that the canal shall be self-supporting and that the people of the State shall not be taxed to aid it in any way.”

And on page 356 of the opinion the court further said: “We are of the opinion that the true meaning of the constitutional provision with reference to the canal is, that the Legislature should have power to operate it to. the extent, and to the extent only, that the income of the canal would defray the expenses of operation, maintenance and preservation, and that no moneys shall be appropriated from the treasury of the State in aid of the operation, maintenance or preservation thereof, and that if the earnings of the canal produced a surplus, appropriations of such surplus might be made to aid in the enlargement or extension of the canal, should the Legislature deem it wise to so appropriate such surplus.”

We think it was the purpose of the framers of the Constitution when they wrote this section and of the people when they adopted it to prevent the maintenance and operation of the canal from ever becoming a source of expense to the State, — -to protect the people from ever being taxed to support it — and to require the expenses and liabilities incurred in its maintenance and operation to be paid out of its earnings. The claims in question all arose out of the maintenance and operation of the canal and are only payable, if at all, out of the earnings of the canal, their payment out of the general revenues of the State being prohibited by the provisions of this section of the Constitution.

On April 22, 1871, “An Act to settle up and close the Trust of the Board of Trustees of the Illinois and Michigan Canal” was approved and went into effect. Section 2 of that Act made it the duty of the canal commissioners to take care of and exercise full control over the Illinois and Michigan Canal, and contained the following provisions: “Provided, that any claim, for which the State trustee is now liable, may be prosecuted against the said commissioners, and shall be paid by them out of the resources of the canal. Provided, that all moneys received for rents and tolls, not necessary for the expenses of the canal and for keeping the same in repair, shall be paid, quarterly, into the State Treasury, and that the rate of toll shall not be increased without the consent of the G-eneral Assembly.” Prior to the adoption of the Constitution of 1870 it had been held that an action would lie against the State trustee for loss and damage occasioned by negligence in the management and operation of the canal. The foregoing Act of April 22, 1871, was passed by the first Legislature elected under the Constitution of 1870 and shows that Legislature understood the new Constitution to prohibit appropriations for the payment of claims against the canal and required them to be paid out of its earnings.

On March 27, 1874, “An Act to revise the law in relation to the Illinois and Michigan Canal, and for the improvement of the Illinois and Little Wabash rivers” was approved and went into effect the first of July of that year. This Act gives the canal commissioners the control and management of the Illinois and Michigan Canal. Section 9 of the Act states the duties of the commissioners. The second paragraph of the section makes it their duty to keep the canal, locks and dams, in good and sufficient repair and condition for use and authorizes them to “enter upon and use, overflow or damage any contiguous lands, and procure and appropriate all such material as in their judgment may be necessary or proper to be used in making such repair, build or construct any dam, lock,, or other improvement, and may take proceedings in their official name to ascertain the compensation therefor in the manner at the time provided by law for the exercise of the right of eminent domain: Provided, that the damages, cost of materials and improvements shall in all cases be paid out of the net proceeds derived from tolls.” The third paragraph of the section directs the commissioners to cause suits; to be brought against persons trespassing on the canal, locks, dams and canal lands and then recites: “They may also appraise or cause to be appraised and adjust all claims for damages growing out of the negligence or carelessness of the persons in charge of said canal by means whereof parties navigating said canal shall sustain damages, and when so appraised or adjusted they may pay the same from the tolls collected, and make report thereof: Provided, that such claim for damages and appraisement therein in no single case shall, exceed the sum of $100.00. If in excess of that sum they shall' report the same to the Governor for further legislation.” It will be observed that this section requires all cost of materials and improvements and all claims for damages to be paid out of the earnings of the canal, clearly indicating that the Legislature recognized the Constitution prohibited their payment out of funds derived from any other source.

By the enactment of The Civil Administrative Code of Illinois in 1917 the rights, powers and duties vested by law in “The Canal Commissioners” were given to the Department of Public Works and Buildings and, by the Act approved June 2, 1925, amending The Civil Administrative Code, they were conferred upon the Department of Purchases and Construction. None of these Acts, however, in any way changed Section 9 above mentioned except to transfer the powers and duties of the commissioners to said departments, and that section is still in full force and effect in so far as it relates to the payment of costs, expenses and damages out of the earnings of the canal.

In 1908 an amendment was adopted to separate section 3 of the Constitution which added thereto a provision authorizing the issue of bonds of the State in a total amount not to exceed Twenty Million Dollars to provide funds for the construction of a deep waterway from the present water power plant of the Sanitary District of Chicago near Lockport in Will County to a point in the Illinois River at or near Utica. This amendment did not alter the section as originally adopted except the proviso thereto which was changed to read as follows: “Provided, that any surplus earnings of any canal, waterway or water power, may be appropriated or pledged, for its enlargement, maintenance or extension.” The words in italics are those added by the amendment. It is obvious that the added words do not change the construction we have given the section as originally framed. Their addition has the effect of making the prohibition of the section apply to the waterway ov.water power as well as to the canal.

Pursuant to the Constitutional Amendment of 1908 the Greneral Assembly in 1919 enacted the Illinois Waterway Act devolving the construction, maintenance, control and operation of the waterway upon the Department of Public Works and Buildings. Section 2 of the Act describes the general route of the waterway and then provides: “If, in the judgment of the Department of Public Works and Buildings, the utilization of sections of the Illinois and DesPlaines rivers is not practicable or feasible, then the general route above described may be deviated frotii in such sections and in lieu thereof the Illinois and Michigan Canal may be used and improved, or channels outside of such rivers may be constructed.” ■ This provision clearly gives the Department power to use portions of the canal under the conditions mentioned and such portions of it as they have used or may use in the construction of the waterway are or will become subject to the provisions of the Illinois Waterway Act. Section 23 of the Act provides the State shall be liable for damages to real estate which shall be overflowed or otherwise damaged by reason of the construction, maintenance or operation of the Illinois Waterway and for all damages to persons caused by its construction, maintenance or operation. Sections 24 and 25 provide how such damages shall be ascertained and paid. .

Section 24 is as follows: “All claims for damages'to persons (except to employees) and all claims for damages to property, real or personal, shall be ascertained, determined and fixed by the Department of Public Works and Buildings, and paid out of any moneys which shall from time to time be provided for the payment of such claims. In case the claimant and the Department of Public Works and Buildings cannot agree on the amount of such damages, the question shall be submitted to arbitration. The claimant shall select one arbitrator and the Department of Public Works and Buildings shall select another. If the arbitrators so selected cannot agree, then the two arbitrators shall select a third arbitrator. In case the two arbitrators cannot agree upon a third arbitrator, then the resident judge, or if there be none, the presiding-judge of the Circuit Court of the county wherein the damages,- arose shall select such third arbitrator. The decision of a majority of such arbitration board shall be binding and conclusive upon the State and the claimant. The compensation of the arbitrators shall be fixed by the Department of Public Works and Buildings in advance of appointment and such compensation shall be paid by the State. All claims for damages to persons or property shall be filed with the Department of Public Works and Buildings within five years after the injury complained of.”

Section 25 gives the Court of Claims jurisdiction in cases of accidental injuries or death suffered by employees arising out of and in the course of their employment while employed by the Department of Public Works and Buildings in the construction of the waterway or its appurtenances or any part or parts thereof.

The amendment of the Civil Administrative Code, approved June 2, 1925, transferred the powers and duties of the Department of Public Works and Buildings in relation to The Illinois Waterway to the Department of Purchases and Construction, and that Department is now clothed with all the powers and charged with all the duties given by the Illinois Waterway Act to the Department of Public Works and Buildings. It is clearly apparent from these constitutional and statutory provisions that the Court of Claims has no jurisdiction to pass upon claims for damages to property arising out of the construction, maintenance or operation of any portion of the Illinois and Michigan Canal. If the damages claimed relate to those portions of the canal incorporated in the Illinois Waterway, the amount of the damages must be ascertained, determined, fixed and paid in accordance with the provisions of said Section 24 of -the Waterway Act. If they relate to portions of the canal not included in the Illinois Waterway and are such damages as aré mentioned in Section 9, of the Act approved March 27, 1874, to revise the law in relation to the Illinois and Michigan Canal, then the amount of such damages must be ascertained and paid as provided by said Section 9 of that Act. If the damages claimed do not come under the provisions of either of those acts and arose out of the maintenance or operation of the canal the Constitution prohibits the appropriation of any money from the general revenues of the State for their payment, as such appropriation would be in aid of the canal.

Claimants urge that claims of like character as theirs have been allowed by this court. It may be that the court has heretofore made mistakes but that does not justify a repetition of the error. It is the duty of all tribunals when they become cognizant of having made an erroneous decision to refuse to follow such decision or recognize it as a precedent. Separate Section 3 of the Constitution plainly provides that appropriations from the State Treasury shall never be made in aid of the Illinois and Michigan Canal. The Constitution is the supreme law of the State, — it is a mandate direct from the people which executive, legislative and judicial officials are all bound to obey.

It necessarily follows from the views we have expressed that the demurrers must be sustained, and they are sustained accordingly.

The claims are therefore denied and the cases dismissed.


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    (No. 1320
    Kinnear Stores Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1929.

      Rehearing granted June 26, 1929.

      Opinion on rehearing filed November 7, 1929.

    Brown, Hay & Stephens, 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:

This is a claim brought to recover for franchise taxes alleged to be wrongfully collected by the Secretary of State on or about June, 1927.

As it has been held by this court a claimant of this kind should follow the legal remedy in courts of general jurisdiction, the Attorney General comes and presents his objection together with the fact that the payment complained of was made voluntarily before the date when payment was due.

Therefore it is recommended by this court that claim be disallowed.

On June 26, 1929, upon petition for rehearing the following additional opinion was filed:

This court is of the opinion that sufficient reason has been advanced by claimant for rehearing to grant a rehearing.

It is therefore considered by the court that a rehearing he granted.

On November 7, 1929, the following modified" opinion was filed:

It appears by statement of the Attorney General and admitted by the Secretary of State that an error had been made relative to assessment of certain capital stock made by the office of the Secretary of State upon the issued capital stock of claimant. It is admitted that there is an error over-assessing the capital stock in the sum of Eight Hundred ($800.00) Dollars.

It is therefore considered by the court that claimant be awarded the sum of Eight Hundred ($800.00) Dollars.


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    (No. 1357
    George Conway, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 7, 1929.

    Snapp, Heise & Snapp, 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, a married man having no children, was driving south on Scott Street in the City • of Joliet on March 5th, 1928, and as he approached the intersection of Scott and Jackson Streets, from the north he claimed he slowed down and looked to the right and saiv nothing except a State truck nearly a block away. Seeing no other cars he shifted gears and ran into the intersection at an increasing rate of speed. It is claimed the State truck, a Ford, without a speedometer, was’being driven east by a laborer hired by the Highway Department. There was a collision. The State of Illinois contends that the employee of the State was on the right and states that there is conflicting evidence as to the speed of the car which the court is inclined to believe to be the case.

This court is of the opinion that if the drivers of these cars exercised ordinary care that no accident would have occurred. The court does not believe that the State of Illinois should be held responsible for an accident based upon the facts as set out in this case.

Therefore it is ordered by the court that the claim be disallowed.


author: Mr.. Justice Thomas

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    (No. 1448
    The Village of North Utica, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 7, 1929.

    Hibbs and Pool, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr.. Justice Thomas

delivered the opinion of the court:

This is a claim for moneys alleged to have been expended by the Village of North Utica in the repair and maintenance of a bridge over the Illinois and Michigan canal during the years 1920 to 1927 inclusive and aggregating the total sum of $1,648.30. The declaration was filed February 28, 1929. It is conceded by claimant that $1,271.39 of this sum is barred by the statute of limitations, but it is urged that under the principle of equity and good conscience an award should be made notwithstanding the statute. No award can be made against the State by this court unless the claim is based on some legal or equitable right. The statute creating the Court of Claims specifically provides: “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” etc. This statute is mandatory and the court has no discretion in the matter. If the claim be not filed within the time fixed by the law the court must deny it regardless of whether it be based on a legal or equitable right. The statute applies to “every claim against the State cognizable by the Court of Claims” which clearly includes both legal and equitable claims. The remainder of the demand is for repairs made less than five years prior to the filing of the claim and does not come within the inhibition of the statute.

If it be the duty of the State to keep the bridges over the canal in repair as part of the expense of” operating it the cost of such repairs can only be paid out of the earnings of the canal. Separate Section 3 of the Constitution of 1870 provides: “The General Assembly shall never loan the credit of the State or make appropriations from the treasury thereof, in aid of railroads or canals: Provided, that any surplus earnings of any canal, waterway or water power, may be appropriated or pledged for its enlargement, maintenance or extension.” This section applies to the Illinois and Michigan canal and prohibits appropriations from the State Treasury in aid of it. (Hollenbeck et al. v. State, Nos. 1111 to 1114, opinion filed this term; Burke v. Snively, 208 Ill. 328). If the repair of bridges over the canal be included, in the expense of its operation an appropriation from the State Treasury to pay for such repairs would be in aid of the canal and is prohibited by the above provisions of separate Section 3 of the Constitution.

But we do not think the canal authorities were either clothed with the duty or given the power to maintain the bridges over the canal. By the common law the burden of opening and repairing highways and constructing and maintaining bridges rests upon the counties. (The People v. Canal Trustees, 14 Ill. 402.) This burden may be divided upon and between the comity and smaller municipal divisions, and so may the jurisdiction and duties of supervision and repair, as the legislature may think proper. The whole subject is under legislative discretion. (Dennis v. Maynard, 15 Ill. 477; The People v. Wabash R. R. Co., 265 Ill. 530.) By the seventh clause of section 1 of article 5 of the Cities and Villages Act-the legislature has devolved upon cities and villages the power to establish and open streets and alleys within their corporate limits and clothed them with the duty of maintaining such streets and alleys in a safe condition for public travel after they have been established and opened. By clause twenty-eight of the same section cities and villages are given the power to construct and keep in repair bridges, viaducts and tunnels within their corporate limits. By conferring these powers upon cities and villages the legislature deprived all other bodies of its exercise. (The People v. I. C. C. R. Co., 266 Ill. 240.)

It is alleged in the declaration that the bridge in question is over the canal where it intersects Clark Street, and that said street is and for many years has been in the possession and under the control of the Village of North Utica. The bridge is, therefore, a part of Clark Street and the duty of keeping it in repair, is upon the village. (People ex rel. v. Meyer, 251 Ill. App. 475.)

The act to revise the law in relation to the Illinois and Michigan canal, approved March 27, 1874, in sections 8 and 9 very fully sets out the powers and duties of the canal commissioners relative to the control, management, operation and maintenance of the canal, its locks, dams and other improvements and appurtenances. Bridges are not mentioned any place in the act except in section 24. That section provides that no bridge shall be constructed across the canal by any one without having first submitted the plan thereof to the canal commissioners and obtained their consent thereto. When all the provisions of this act are considered it is obvious that the legislature did not intend to give the commissioners power to construct and maintain bridges over the canal but to charge them with the duty of preventing the construction of bridges in such manner as would or might interfere with its use for navigation.

The claim is therefore denied and the case dismissed.


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    (No. 840
    L. Y. Sherman and Noah C. Bainum, Partners, Doing Business Under the Firm Name and Style of Sherman & Bainum, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1929.

    O. H. Jenkins, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank E. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim filed to recover for legal services in behalf of the State of Illinois. It is claimed and from the records in this case apparent that claimants performed services for I the defendant under the direction of the Attorney General of the State. It is also shown by the record that the Legislature of this State failed to make sufficient appropriation to carry I on the program of litigation as was then proposed by the I Attorney General of the State of Illinois. The reasons fori the Legislature failing to make the appropriation cannot] properly be discussed here as this court is in the position! as a matter of law an advisory committee to the Legislature.] The province of this court is to study a proposition that; the Legislature has not the time or opportunity to examine or consider from a legal and equitable viewpoint and to give our opinion on the particular line of facts, so the Legislature might be informed with the least inconvenience as to th^ character of the claim, presented and the equitable and legal reasons sought to be considered.

The Attorney General of the State of Illinois now comes and objects to this claim setting up that there are no legal or equitable grounds for an allowance in this case. Therefore the court must determine whether or not this is a case that, the Legislature would require information. This court is of the opinion that this case is one which the Legislature was fully advised at the time the matter was considered by that body. That subsequent sessions of the Legislature had opportunity to consider the merits of this case and could have granted a remedy if that body so desired. This court is of the opinion that matters between the departments of this State should be determined between themselves as far as possible excepting in such instances where there is a mutual request for a determination of the subject matter by this court.

This court is reluctant about expressing an opinion or granting an award in matters wherein the Legislature is well informed and in view of the fact that the Attorney General of this State now comes and objects most vigorously, this court is of the opinion that it should not take jurisdiction in the matter involved in this issue.

It is therefore recommended by this court that the claim be dismissed.


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    (No. 1261
    C. J. Fredrickson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1929.

    Alschulee, Putnam, Plannigen & Johnson, for claimant.
    Oscar E., Carlsteom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is for $173.98 damages to claimant’s automobile caused by the driver of a State truck negligently backing the truck into the automobile of claimant.

The claim being based upon the negligence of an employee of the State cannot be allowed. No government is liable for the negligence of its employees in the absence of a statute making it liable for such negligence. (Gibbon v. U. S., 8 Wal. 268; Minear v. State Board of Agriculture, 259 Ill. 549; Hollenbeck v. Winnebago Co., 95 Ill. 148.) If the injury complained of was caused by the negligence of the driver of the truck, claimant’s remedy is against the driver and not against the State. (Cooney v. Town of Hartland, 95 Ill. 516.)

The claim is therefore denied and the case dismissed.


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    (No. 1314
    John A. Smith and Helene Smith, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1929.

      Rehearing denied December 18, 1929.

    John Latjx, for claimant.
    Oscar E. Carlstrom, Attorney Greneral; Boy D. Johnson, Assistant Attorney Greneral, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court.

It appears that in the year 1924 and subsequent thereto, the claimants owned a piece of property at the intersection of route 19, State hardroad system. The property was located in the town of Fox Biver Gf-rove. It is claimed there is a hotel and a boat and livery business on the property. In 1925 the State Highway Department built a bridge and it is claimed that the grade of the road approaching the bridge was raised from one to six feet.

The court, in going over the whole matter, is of the opinion that there must be some benefits to a claimant of this character in the building of the hard road by his place of business, and we do not believe the record in the case shows any damage beyond the benefits that can be considered.

Therefore, it is recommended that claim be denied.

On December 18, 1929, upon petition for rehearing the following additional opinion was filed:

This matter coming on to be heard upon petition for rehearing and the court being fully advised in the premises find no cause for rehearing.

Therefore petition for rehearing is denied.


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    H. C. Lampp, 1368; J. W. Finney, 1369, Eleander Pyle, 1379, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1929.

      Rehearing denied December 18, 1929.

    Ulys Pyle and Charles T. Randolph, for claimants.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

By stipulation of the parties these three cases have been consolidated, and this opinion will apply to all of them.

The claims are all for damages alleged to have been caused to the lands of claimants by the construction of State Bond Issue Route No. 14. Route 14 extends east and west on the section line between Sections 13 and 24 in Township 5 South, Range 8 Bast of the Third Principal Meridian in "White County. Claimant Lampp’:s land lies immediately south of and adjoining the road, being the Northwest Fourth of the Northeast Quarter of Section 24. Claimant Finney’s land also adjoins the road on the south, being the Northwest Fourth of the Northwest Quarter of Section 24. Claimant Pyle’s land is the Northeast Fourth of the Northeast Quarter and the Northeast Fourth of the Northwest Quarter of Section 24 and the Southeast Quarter and the Bast Half of the Southwest Quarter of Section 13, except that part of the East Half of the Southeast Quarter lying on the north side of the Louisville and Nashville railroad. The two forty acre tracts in Section 24 adjoin the hard road on the south and three forty acre tracts in Section 13 adjoin it on the north. The lands of all three claimants are in Seven Mile creek bottoms. Route 14 extends across this bottom for about two miles. All the lands in this territory are very flat and subject to overflow in times of heavy rainfall. Their only outlet for drainage is Seven Mile creek, which flows in a northeasterly direction and empties into the Skillet Fork of the Little Wabash river about five miles north of Route 14. Seven Mile creek is formed by two branches, called in this record the Bast Branch and West Branch.- They unite in Section 13 some distance north of the hard road to form the main channel. These branches and the main channel of the creek are all shallow, very crooked and obstructed with logs, brush and drifts. This condition greatly retards the flow of the water and lessens the carrying capacity of the streams. Before Route 14 was improved by the State the streams would not carry the water in times of heavy rains and these bottom lands were at such times overflowed. Less than one half mile north of Route 14 and parallel with it the Louisville and Nashville railroad extends across the Seven Mile bottoms upon a grade which is considerable higher than the general level of the lands.

Route 14 was a public highway for many years before it was paved by the State, but was not graded up above the level of the adjacent lands to any considerable extent. When the State took it over for improvement as one of the bond issue routes it built a grade some two miles long and about 5 feet high through this bottom. In this grade four.openings were made where streams crossed the road, one being 120 feet long, one 80 feet long, one 40 feet long and one 12 feet long, all of them being 6 feet high or more above the bed of the streams.

The declarations of claimants are all substantially the same. Claimants Lampp and Finney charge the openings in the grade are not sufficient to permit the water to get away and that the grade catches the water and throws and holds it back on their lands and causes them to overflow, thereby rendering them unfit for cultivation and causing loss of crops. Lampp also charges that his dwelling house, barn and other buildings have been greatly damaged and rendered unfit for habitation etc. Claimant Pyle makes the same charges relative to his lands south of the road and, in addition, charges that on the north side of the road barrow pits were so constructed as to change the flow of the water of Seven Mile creek and bring it down across and onto his lands, thereby making his dwelling unfit for habitation, destroying his crops, etc., so that his farm has become worthless. Lampp asks $4,862.00 damages, Finney, $1,950.00 and Pyle $15,000.00. Lampp and Finney each have 40 acres of land and Pyle 306 acres, all claiming their lands have been rendered wholly worthless by the construction of the road in the manner in which it was constructed.

The right of way of Route 14 crosses lands of all the claimants. Pyle and Finney executed deeds conveying the necessary right of way over their lands to the State but Lampp refused to do so and the right of way across his land was taken under the provisions of the Eminent Domain Act, and he was awarded $50.00 damages. His claim in this court is for damages to land not taken for right of way purposes and which he alleges were caused by the construction of the road. We do not know whether or not, in the condemnation proceeding, he asked damages other than for the land actually required for the right of way7. He had the right to have the question of damages to his other lands heard and determined in that proceeding; he not only had the right to do that but, if he claimed any such damage, it was his duty to make such claim in that suit. If he did make such claim the award of $50.00 is, of course, final and binding and the matter cannot be again litigated in this or any other court. The Eminent Domain Act provides that when private property is taken or damaged for public use the compensation for such taking or damage shall be ascertained by a jury. The act contemplates that the entire compensation to be paid the owner, whether it be for land taken or land , damaged or both, shall be ascertained by one jury and in one proceeding. It does not purpose that such compensation shall be assessed piecemeal, a part by a jury in condemnation proceedings and a part recovered in a separate action by the property owner who was the defendant in the condemnation case against the petitioner in that case. In Springer v. Darlington, 198 Ill. 121, at page 124, the Supreme Court announced the rule in such cases in the following words: ‘ ‘ The doctrine of res adjudicata is not limited to those things which are actually pleaded and litigated, but it extends to every other matter properly involved in the litigation which might have been raised and determined in it.” See also Bennett v. Star Mining Co., 119 Ill. 9. Having had his day in court where every question raised in this case either was or might have been litigated claimant is barred by the judgment in that proceeding from asking for any award in this.

Claimants Pyle and Finney executed deeds conveying to the State the right of way required for the road in 1923. Where a person conveys a right of way over his land it will be conclusively presumed that all the damages to the balance of the land, past, present and future, were included in the consideration paid him for his conveyance the same as an assessment of damages on a condemnation would be presumed to embrace. The conveyance of the right of way to the State by Pyle and Finney had the same effect upon the parties to the deeds that a condemnation for the same lands would have had. If the right of way conveyed by them had been acquired by condemnation not only would the compensation for such right of way have been determined in that proceeding by the damages to their other lands caused by the construction of the road would also have been assessed. It follows that had the State condemned this right of way no recovery could be had by these claimants for the damages here sued for. They would have been included in the assessment of damages made on the condemnation, and whether in fact included or not, they would be conclusively presumed to have been included. The same result follows from the voluntary conveyance by them of the right of way to the State. Chicago, Rock Island and Pacific Railway Co. v. Smith, 111 Ill. 363. The conveyance of the lands for the barrow pits was for the purpose of removing dirt therefrom to make the fill or grade of the highway, and specifically recited that the grantor waived all damages of every name and nature that might accrue to him because of the pits or of any excavation or removal of material therefrom. Having waived all damages that he might suffer by the excavation of the barrow pits he cannot now maintain an action for them. The fact that contract was made with the State does not make it any the less binding upon him nor relieve him from its enforcement.

Claimants say that in equity and good conscience they should be reimbursed by the State for their losses caused by the construction of the road. The road in question is one of the public highways of the State. It could not be improved and made safe for continuous travel without being graded. Its improvement required additional right of way for the road proper and also the so called barrow pits from which material might be obtained to make the necessary grade. This right of way could only be had in one of two ways, — by condemnation or by the voluntary conveyance by the owners of the land. Lampp allowed his to be condemned, and his compensation was fixed in the manner provided by law in such cases. This court has no jurisdiction to review that proceeding, — it has no appellate jurisdiction — and the judgment in the condemnation suit is res adjudícala of the question. Pyle and Finney conveyed the right of way to the State voluntarily. They did not have to do so, but having done so they are held to the legal effect of the conveyance. It follows that neither of claimants has any legal cause of action against the State.

Before claimants can have an award against the State they must show their claim falls within the provisions of some law making the State liable to pay them. If they cannot point to such law they cannot invoke the principle of equity to secure an award. Where there is no legal liability equity cannot create one. (10 R. C. L., see. 132, p. 383.) Equity is not the court’s sense of moral right; it is not the power of the court to decide a case according to a high standard of abstract right, regardless of the law; it is a complex system of established law. Clearly claimants have shown no equitable cause of action against the State. It was not the intention of the Legislature to clothe this court with the power to make awards unless the facts show such awards are based on either legal or equitable demands. It follows,, therefore, that the claims cannot be allowed as a matter of equity.

Claimants cite Peterson et al. v. State, 5 Ct. Cl. 409, as authority for the allowance of their claims. In that case this court did not pass upon the claims involved. The Attorney General and counsel representing the claimants entered into a stipulation that certain specified sums should be allowed the claimants and all this court did was to recommend that the claimants be allowed the amounts so stipulated, leaving the Legislature to decide whether or not they should be paid, and is not an authority upon any question.

The claims are therefore denied and the cases dismissed.

On December 18, 1929, upon petition for rehearing the following additional opinion was'filed:

Claimants filed their petition for a rehearing in the above cases on the 5th day of October, 1929. The court, after a careful consideration of this petition, finds that all questions raised in it were carefully considered and passed on in the original opinion in these eases.

The petition for rehearing, is therefore denied.


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    (No. 1469
    Blanche Kaufman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1929.

    William: H. Katt, 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 asks an award of $2,500.00 for damages caused by a fall on a sidewalk of Jackson Boulevard in the City of Chicago on October 9, 1928. She alleges the sidewalk was in the possession and under the control of the State and that the State wrongfully and negligently suffered the same to be and remain in bad and unsafe repair and broken condition and that such condition caused.her to stumble and fall and dislocate her knees. It has been often decided by this court that the State is not liable for the negligence of its agents and employees. If claimant was injured through the negligence of employees of the State, the negligence was the negligence of the employees and not of the State. (Cooney v. Town of Hartland, 95 Ill. 516.)

The evidence in this case shows, however, that Jackson Boulevard was under the control of the West Chicago Park Commissioners at the time of the - alleged injury. The West Chicago Park Commissioners is a municipal corporation, and has exclusive control of the parks, streets and boulevards within its jurisdiction. (West Chicago Park Com’rs. v. Chicago, 152 Ill. 392.) Such streets as are not under the control of the various boards of park commissioners are under the control of the city. The State has nothing to do with their maintenance, that duty having been delegated to the city and park commissioners.

If claimant was injured through the negligence of the agents of either the city or park commissioners her remedy is against the municipality causing her injury and not against the State, and this court has no jurisdiction. (Perkins, Fellows & Hamilton v. State, 4 Ct. Cl. 197.)

The claim is denied and the case dismissed.


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    (No. 1479
    Sam Peretz, Administrator of the Estate of George Peretz, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1929.

    Miller, Gorham and Wales, 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 declaration alleges that on April 19, 1928, Plamondon Public School in the City of Chicago was under the jurisdiction of the Board of Education of the City of Chicago; that along the north yard of the school was an eight foot brick wall built to protect the pupils from traffic in an alley running along the school yard'; that plaintiff’s intestate, George Peretz, was a pupil at the school: “that it was the duty of the Board of Education of the City of Chicago through its employees, agents and servants to inspect, maintain and keep in repair the said wall so that it would not be likely to cause injury to anyone upon the premises, but that the Board of Education through its employees, agents and servants wholly failed in its duty to keep the wall in a safe condition;” that on the 19th day of April, 1928, while plaintiff’s intestate in the exercise of all due care and caution was lawfully on said premises as a pupil at said school, said wall “by reason of and as a proximate result of the aforesaid negligence of the employees, agents and servants of the Board of Education of the City of Chicago, suddenly collapsed and fell, pinning the said George Peretz underneath much debris from which he received and suffered fatal injuries, whereof he died on the 19th day of April, A. D. 1928.” The declaration also alleges the appointment of claimant as administrator of the deceased, the heirs of deceased, etc., and asks an award of $10,000.00 against the State. To this declaration the State has filed a general demurrer.

There is nothing in the declaration, or the argument in support of it, indicating upon what theory claimant has filed his suit against the State instead of the Board of Education of the City of Chicago. The declaration itself shows if claimant has any cause of action it is against the Board of Education and not against the State. The constitution has imposed upon the General Assembly the duty of providing “a thorough and efficient system of free schools, whereby all children of this State may receive a good common school education.” (Constitution, Sec. 1, Art. 8). In compliance with this provision of the constitution the General Assembly has created school trustees, school districts and boards of education and imposed upon them the duty of maintaining schools in their respective jurisdictions. They are clothed with certain specified powers and charged with the performance of certain named duties, but such powers and duties are limited to the territory included within their boundaries. They are local quasi corporations created by general law to aid in the administration of the government in their respective localities. They own no property, have no corporate interests and derive no special benefits from their corporate acts. They are mere agencies of the State existing for the sole purpose of performing the duties necessary to the maintenance of free schools within their respective jurisdictions. They can only act through agents and servants and are not liable for damages caused by the negligence or carelessness of such agents and servants. (Kinnare v. City of Chicago, 171 Ill. 332; Lindstrom v. City of Chicago, 331 Ill. 144; Lincke v. Moline Board of Education, 245 Ill. App. 459).

The Board of Education of the City of Chicago is given general management and supervision of the public schools of the city and is charged with the duty of maintaining an efficient public school system in the city whereby all the children of the city may receive a good common school education. It is clothed with all the powers necessary to effectually perform that duty. In the exercise of these duties it is but an agency of the State, and the State is never liable for damages caused or suffered by the negligent or careless conduct of its agents. (Lindstrom v. City of Chicago, supra; Kinnare v. City of Chicago, supra.)

The declaration fails to state a cause of action against the State and the demurrer must be sustained.

The case is therefore dismissed.