text:
    (No. 2613
    Nelson G. Alexander, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1935.

    Monroe & Allen, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

The complaint filed in this case alleges in substance that on November 17th, 1934, at 6:10 P. M., claimant was driving his automobile at a speed of about forty-five (45) miles per hour in an easterly direction on S. B. I. Route 121 at a point about eight (8) miles west of Newman, Illinois, and was using due care for his own safety; that he suddenly came upon an unlighted barrier placed across the right half of said highway by the maintenance department of the Division of Highways of the respondent in connection with certain repair work then being done by said - respondent; that in attempting to avoid striking such barrier, claimant turned sharply to the left side of the road; that the left wheels of his automobile slipped off the concrete roadway; that in attempting to turn back on such roadway, his automobile turned over on its side, and was thereby damaged, and claimant sustained injuries resulting in a loss of time and wages; for all of which he claims damages in the sum of Five Hundred Ten Dollars and Sixty Cents ($510.60).

The Attorney General has entered a motion to dismiss the case on the ground that the respondent in the exercise of its governmental functions is not liable for the negligence of its servants and agents in the absence of a statute making it so liable.

The claimant contends that he is entitled to an award on the grounds of “equity and good conscience” based upon the provisions of Paragraph four (4) of Section six (6) of the Court of Claims Act, which provides that this court shall have power ‘ ‘ to hear and determine all claims * * * which the State as a sovereign commonwealth, should, in equity and good conscience, discharge and pay.”

The same contention was made in the case of Lois Bass vs. State, No. 2679, and Sam Schnell vs. State, No. 2610, both of which were decided at the present term of this court, as well as in numerous other cases recently decided. In all of such cases, we held adversely to the contentions of the claimant.

The reasons for such decisions and some of the many authorities in support of the position taken by the court are set forth in the case of Lester A. Royal vs. State, No. 2597, and in the case of George McGready vs. State, No. 2604, decided at the September, 1935 term of this court, and a repetition thereof at this time will serve no good purpose. For the reasons set forth in the last mentioned cases, the motion of the Attorney General will be sustained.

Motion allowed. Case dismissed.


source: Caselaw Access Project

author: Mr. Chief Justice Hollerich

license: Public Domain

text:
    (No. 2639
    Alan C. Atchison et al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1935.

    Paul G. Weisenhorn, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimants allege in their complaint herein that on November 29th, 1933, claimant Alan A. Atchison was driving his automobile in a southerly direction on S. B. I. Route 4, about five (5) miles south of the city of Pontiac; that the claimant Cecile E. Atchison was a passenger in said automobile; that for a long time prior to said November 29th, the respondent knowingly and negligently permitted a girder on one of its bridges which formed a part of said S. B. I. Route 4 to project over the concrete highway, thereby preventing a free passage over said bridge; that as a result of the negligence of the respondent as aforesaid, the front wheel of said automobile collided with said steel girder, damaging said automobile to the extent of One Hundred Seventy-five Dollars ($175.00) and causing serious personal injuries to claimant Cecile E. Atchison; — for all of which claimants ask an award in the amount of Three Thousand Dollars ($3,000.00).

The Attorney General has moved to dismiss the case on the ground that the respondent is not liable for the negligence charged in the complaint.

In opposing the motion of the Attorney General, claimants contend that they are entitled to an award on the grounds of equity and good conscience, and ask that the motion of the Attorney General he over-ruled and that they be given an opportunity to produce evidence in support of their claim.

This court has held in numerous cases that in the maintenance of its durable hard-surfaced roads, the State is acting in a governmental capacity; that in the exercise of its governmental functions, the State is not liable for the negligence of its servants and agents, in the absence of a statute making it so liable; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity if the State were suable, and that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.

Numerous citations supporting the foregoing propositions are set forth in the case of Lester A. Royal vs. State, No. 2597, and in the case of George McGready and John DeLuise vs. State, No. 2604, both decided at the September, A. D. 1935 term of this court, and it is needless to repeat them here.

If all of the allegations of the complaint were proven on the trial, we would have no authority to allow an award under the repeated decisions of this court, and it would therefore be useless to make such proof.

The motion of the Attorney General must therefore be sustained.

Motion allowed. Case dismissed.


author: Mb. Chief Justice Hollebich

text:
    (No. 2221
    Fred Baber, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1935.

      Rehearing denied February 9, 1937.

    Gullett & Eagleton and Wilbur. H. Hickman, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

The claimant, Fred! Baber, is now, and for more than fifteen years last past has been the owner of the Southeast Quarter (SE¼) of Section Twenty (20) and the Southwest Quarter (SW¼) of Section Twenty-one (21), all in Township Thirteen (13) North, Range Thirteen (13) West of the Third Principal Meridian, in Edgar County, Illinois.

By deed of dedication dated August 23rd, 1923, for the consideration of $1,077.00, claimant and others granted, conveyed and dedicated to the People of the State of Illinois, for the purposes of a public highway, a strip of land containing 4.23 acres, along the south side of the above described premises.

Work on the construction of said highway was commenced on or about April 24th, 1924, and the same was completed on or about April 4th, 1925; said highway being a part of S. B. I. Route No. 16. Prior to the time of the construction of such highway, the tract of land so conveyed for highway purposes as aforesaid was farm land, and no part thereof had been previously used for highway purposes.

Prior to the construction of the highway in question there was but one open ditch on claimant’s property, the same being on the east half thereof and extending in a northwesterly direction across the same. Now there are three other ditches or draws on claimant’s property, being on the west half of such property. The land in question is all low land, and prior to 1892 was grass land. In 1892 it was tile drained for farm purposes, and after tiling, it was all tillable. Before tiling there were ponds on the premises. The tile used were ten, eight and seven-inch tile, and they were placed in the approximate location of the ditches hereinbefore referred to.

The general course of drainage of the surface water to and over claimant’s land is from the south to the north. In the construction of S. B. I. Route 16, culverts were placed across the same immediately south of the aforementioned ditches or draws, being at the low points on the land.

Prior to the construction of the highway in question, it was possible to plow over all of claimant’s land from the east to the west, except over the ditch on the east half of the property. At the present time the proper cultivation of the land is also interfered with by the ditches on the west half of the property.

Witnesses for the claimant testified that before S. B. I. Route 16 was constructed, claimant’s property suffered no damage by reason of surface water; but after such highway constructed, and commencing about 1928, there was damage to the land by reason of the surface water which came through the several culverts under the highway in question; and that such damage increased with each succeeding year.

Claimant filed his complaint herein on July 25th, 1933 and charges therein in substance that the respondent improperly and wrongfully constructed said highway, whereby the property of the claimant was damaged, and also alleges in said complaint the following:—

“All of the damages herein claimed is a direct result of the improper and wrongful construction of said S. B. I. Road Route No. 16 in that it changed the watercourses, and watersheds on the premises of the claimant,” etc.

Prior to the construction of such highway, there was a hedge fence along the south side of the west half of claimant’s property, and a rail fence along the south side of the east half of said property. These fences were located on the strip of land which was conveyed and dedicated to the State, and in the construction of the said highway both fences were removed. Claimant contends that said fences had a tendency to retard the flow of water from the dominant land to the servient estate; and that after the removal of such fences the flow of the water into the ditches hereinbefore referred to was increased and accelerated, and resulted in the damage complained of.

Claimant’s right of action, as set forth in the complaint, is based upon the contention that the highway in question was improperly and wrongfully constructed by the respondent, and that as a result thereof watercourses and watersheds on said property were changed, to the resulting damage of the claimant.

The Attorney General contends that the claimant has no right to recover in this case, and urges among other reasons, that the aforementioned conveyance and dedication to respondent has the same effect as a judgment in a condemnation proceeding, and bars the claimant from a recovery.

The question raised by the Attorney General has been before the courts of this State in a number of cases involving conveyances for railroad rights-of-way, and our courts have uniformly held that the legal effect of such a conveyance is the same as a judgment in condemnation; that the consideration paid for the conveyance constitutes a release of all damages, including damages to property not conveyed, which result from the proper construction of the road in question.

If the property conveyed by the claimant’s deed of dedication as aforesaid had been condemned for highway purposes, the damages assessed would have been not only for the property taken, but also for the remaining property if any, which was damaged but not taken. Consequently, where property is acquired by deed of dedication instead of by condemnation, the payment of the consideration agreed upon, has the same effect as the assessment of damages in condemnation, and includes damages to property not taken, the same as in condemnation proceedings.

In considering the legal effect of a similar deed made to a railroad company, the Supreme Court of this State, in the case of C. R. I. & P. Ry. Co. vs. Smith, Ill. 363, said:

“We regard the deed from Burcky, for the public use this railroad, as having the same effect upon the rights of the parties, with respect to Lot 11, that a condemnation of the same land for such public use would have had, —the one being a voluntary conveyance made for a public use, and the other amounting to a statutory conveyance for such use. Had this right-of-way been acquired by condemnation, Burcky would have had made to him compensation for the value of the strip of land one hundred feet wide taken, and also an assessment of all the damages to the residue of Lot 11 to result from the operation of the railroad. The rule is, that the appraisement of damages in a case of condemnation embraces all past, present and future damages which the improvement may thereafter reasonably produce. Mills on Eminent Domain, Sec. 216, and cases cited; Chicago and Alton R. R. Co. vs. Springfield and Northwestern R. R. Co., 67 Ill. 142; Keithsburg and Eastern R. R. Co. vs. Henry, 79 id. 290.
“It follows, that had the railroad company condemned this right-of-way as against Burcky, who was the-owner of the whole tract, no recovery could have been had 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, we conceive, follows from Burcky’s voluntary conveyance of the right-of-way. It is to be presumed that the contingent damages to the residue of the lot which might arise from the prudent operation of the railroad, were taken into account in fixing the price.”

In the case of Atterbury vs. C. I. & St. L. Ry. Co., 134 Ill. App. 330, the court, on page 332, said:

“Where a right-of-way for a railroad is conveyed by deed it will be conclusively presumed that all damages resulting to the balance of the grantor’s land from the proper construction and operation of the railroad were included in the consideration paid therefor.”

A similar question was before this court in the case of Lampp vs. State of Illinois, 6 C. C. R. 349. In that case the court, on page 352, said:

“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 but 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.”

In 2 Lewis Eminent Domain, 2d Edition, page 702, Section 293, the rule is set forth as follows:

“Conveyance of land for a public purpose will ordinarily vest in the grantee the same rights as though the land had been acquired by condemnation. The conveyance will be held to be a release of all damages which would be presumed to be included in the award of damages if the property had been condemned. The grantor, therefore, cannot recover for any damages to the remainder of his land which result from a proper construction, use and operation of works upon the property conveyed.”

It seems well settled from the foregoing authorities, that any damages to the claimant’s property which result from a proper construction, use and operation of the highway in question, are conclusively presumed to have been compensated for by the consideration paid for the deed of dedication.

However, under the authorities quoted, and other authorities on the question, the consideration paid for the deed of dedication covers only such damages as result from the proper construction, use and operation of the highway in question. The complaint herein is based upon the improper and wrongful construction of said highway, but no evidence was produced or offered in support of the charge made in the complaint, and the record does not contain a particle of evidence to indicate that the highway was wrongfully or improperly constructed. Claimant produced a number of witnesses who testified that his property had been damaged, but there was no testimony whatsoever to show that such damages resulted from any negligence or any improper or wrongful act on the part of the respondent in the construction of such highway.

We cannot base an award on supposition or conjecture, and on the record before us, we have no authority to enter an award.

The Attorney General has urged several other grounds for the dismissal of the case, but from the view we take of the matter, it becomes unnecessary to consider the same.

For the reasons above set forth, award is denied and the case dismissed.


text:
    (No. 2679
    Lois Bass, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1935.

    Snavely & Miller, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

On November 17th, 1934 claimant”Lois Bass was driving her automobile in an easterly direction on S. B. I. Route 11 at a point about four (4) miles west of Marshall in Clark County, and her minor daughter Jacqueline was a passenger in said automobile. At the time and place aforementioned one Francis Twigg who was then and there in the employ of the respondent, was driving a State truck in a westerly direction. In trying to pass another vehicle on a rather steep grade, said employee of the respondent drove and operated such truck in such a careless and negligent manner that it collided with the automobile of the claimant, and as the result thereof the claimant and her daughter suffered severe but not permanent injuries, and claimant’s automobile was damaged to the extent of Two Hundred Seventy-five Dollars ($275.00). Claimant asks an award in the amount of Four Hundred Ninety-seven Dollars ($497.00) for the damages so sustained as aforesaid.

The Attorney General has entered a motion to dismiss the case on the ground that the State is not liable for the negligence of its servants and agents under the doctrine of respondeat superior in the absence of a statute making it so liable.

Claimant contends that Paragraph four (4) of the Court of Claims Act which provides that the Court of Claims shall have power “to hear and determine all claims * * * * * which the State as a sovereign commonwealth, should, in equity and good conscience, discharge and pay” constitutes statutory authority under which the respondent is liable in this case.

The same contention has been made in numerous recent cases and we have repeatedly held that the State in the maintenance of its durable hard-surfaced roads is engaged in a governmental function; that in the exercise of such functions, it is not liable for the negligent acts of its servants and agents in the absence of a statute making it so liable; that the claimant cannot invoke the principles of equity and good conscience to secure an award unless she can bring herself within the provisions of a law giving her the right to such an award; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity if the State were suable.

Some of the numerous authorities supporting the propositions above set forth are cited in the case of Lester A. Royal vs. State, No. 2597, and in the case of George McGready, et al. vs. State, No. 2604, both decided at the September, A. D. 1935 term of this court, and a repetition thereof at this time is therefore unnecessary. The liability, if any, rests upon the negligent employee and not upon the State.

For the reasons suggested, the motion of the Attorney General must be sustained.

Motion to dismiss allowed. Case dismissed.


author:
      Mr. Chief Justice Hollebich
      Per Curiam:

text:
    (No. 2428
    Marie McCabe, Individually, and as Administrator of the Estate of John L. McCabe, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1935.

      Supplemental opinion filed October 14, 1936.

    Bryant, Roberts, Hwass & Lewe, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollebich

delivered the opinion of the court:

Marie McCabe, individually, and as administratrix of the estate of John L. McCabe, deceased, filed her claim herein on July 6th, 1934 to recover compensation for the death of her husband, John L. McCabe.

For a long time prior to August 12th, 1933 said John L. McCabe was a State highway maintenance patrolman in the employ of the respondent, and his average annual wages were $1,920.00 per annum, payable at the rate of $160.00 per month.

On August 12th, 1933 said John L. McCabe in the course of his duties was driving a motorcycle in a westerly direction upon Roosevelt Road in Chicago, about one and one-half miles east of the County Line Road, and was driving in the westbound traffic lane of said road. At the same time one Tad Martell, aged 19, was driving a Ford coupe owned by his brother Lumina Martell, in an easterly direction on said road and without any warning, turned directly across the westbound traffic lane immediately in front of the said John L. McCabe; as a result of which the motorcycle driven by said John L. McCabe collided with the aforementioned Ford coupe and the said John L. McCabe sustained injuries from which he died on the same day.

Neither the driver nor the owner of the Ford coupe is financially responsible and neither of them owns any property out of which a judgment might be satisfied.

There is evidence in the record that actual knowledge of the death of the deceased was had by one T. A. Svoboda, a sergeant of the State Highway Police and superior of said decedent, and a report thereof was given by said sergeant to the proper State officer; also that claim for compensation was made within the time required by Section 24 of the Compensation Act.

This court has held in numerous cases that in the maintenance and policing of its hard-surfaced highways, the respondent is engaged in an extra-hazardous enterprise within the meaning of those words as used in Section 3 of the Workmen’s Compensation Act; and the claimant is therefore entitled to compensation on account of the death of said decedent, under the provisions of such Act.

Said decedent left him surviving the claimant, Marie McCabe, his widow, and no child or children. Under the provisions of Section 7a of the Compensation Act the claimant Marie McCabe, individually, is therefore entitled to receive compensation in the amount of Four Thousand Dollars ($4,000.00) payable in monthly installments in accordance with the provisions of such Act.

Award is therefore entered in favor of the claimant Marie McCabe individually, for the sum of Four Thousand Dollars ($4,000.00), payable in sixty-one (61) monthly installments of Sixty-five Dollars ($65.00) each, commencing on September 13th, 1933, and one final installment of Thirty-five Dollars ($35.00).

Claimant is now entitled to have and receive from the respondent the sum of Seventeen Hundred Fifty-five Dollars ($1,755.00), being the amount of compensation that has accrued from August 13th, 1933 to November 13th, 1935, and the remainder of said award, to wit, Twenty-two Hundred Forty-five Dollars ($2,245.00), will be paid by said respondent in thirty-four (34) monthly installments of Sixty-five Dollars ($65.00) each, commencing on December 13th, 1935, and one final installment of Thirty-five Dollars ($35.00).

This award being for the death of a State émployee is subject to the provisions of an Act entitled “An Act making an appropriation to pay compensation claims of State employees, and providing for the method of payment thereof,” approved July 2d, 1935.

In accordance with the provisions of such Act, this award is subject to the approval of the Governor, and upon such approval, is payable from the Road Fund in the manner provided by such Act.

Supplemental Order.

Per Curiam:

This cause now again coming before the court upon a report by claimant, under date of October 8, 1936, of her remarriage on the 16th day of September, 1936, and it appearing to the court that under provision of Section 7 of the Workmen’s Compensation Act of this State, any right of the claimant to receive compensation payments under such Act is extinguished by the remarriage of the claimant;

Therefore, it is hereby ordered that the compensation payments heretofore awarded to the claimant in this behalf be and the same are hereby extinguished as of the 16th day of September A. D. 1936.

It is further ordered that a certified copy of this order be forwarded forthwith to the Auditor of Public Accounts, to the Finance Department and to the claimant.


text:
    (No. 2420
    Minnie Perry, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1935.

    Adair & Groves, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On October 10th, 1933, and for several years prior thereto, Aaron K. Perry was employed as a laborer at the Illinois Soldiers’ and Sailors’ Home at Quincy; on the last mentioned date, while engaged with several other men in cutting out and removing the tops of some trees on the grounds of the Home, he sustained accidental injuries which arose out of and in the course of his employment, and which resulted in his death on the next succeeding day.

It appears from the record that both claimant and respondent at the time of the accident were operating under the provisions of the Workmen’s Compensation Act; and that notice of the accident was given and claim for compensation made in accordance with the requirements of Section twenty-four (24) of such Act.

Said Aaron K. Perry left him surviving the claimant, Minnie Perry, his widow, whom he was under legal obligation to support at the time he was injured as aforesaid, and Roy Perry, his son, whose age does not appear in the record. The earnings of the decedent during the year next preceding the injury were $954.00, and were payable monthly; the average monthly wage being $79.50.

Under the terms of the Workmen’s Compensation Act, the claimant, Minnie Perry, -is entitled to receive compensation in an amount equal to four times the average annual earnings of said Aaron K. Perry, to-wit, $3,816.00, payable in monthly installments of $39.75.

Award is therefore entered in favor of the claimant, Minnie Perry, for the sum of Thirty-eight Hundred Sixteen Dollars ($3,816.00), payable in ninety-six (96) monthly installments of Thirty-nine Dollars and Seventy-five cents ($39.75), commencing on the 11th day of November, A. D. 1933.

Claimant is now entitled to have and receive from the respondent the sum of One Thousand Thirty-three Dollars and Fifty Cents ($1,033.50), being the amount of compensation that has accrued from October 11th, 1933 to December 11th, 1935, and the remainder of said award, to-wit, Twenty-seven Hundred Eighty-two Dollars and Fifty Cents. ($2,782.50), will be paid by said respondent in seventy (70) equal monthly payments of Thirty-nine Dollars and Seventy-five Cents ($39.75) commencing on January 11th, 1936.

This award being for the death of a State employee, is subject to the provisions of an Act entitled “An Act mafcmg an appropriation to pay compensation claims of State employees, and providing for the method of payment thereof,” approved July 2d, 1935.

In accordance with the provisions of such Act, this award is subject to the approval of the Governor, and upon such approval, is payable from the General Revenue Fund, in the manner provided in such Act.

Claimant has filed her petition herein for a lump sum settlement, pursuant to the provisions of Section nine (9) of the Workmen’s Compensation Act. No showing is made which would justify a lump sum settlement under the facts in this case, and the petition for a lump sum settlement is therefore denied.


text:
    (No. 2610
    Sam Schnell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1935.

    Cotton & Nichols, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

The complaint filed in this cause alleges that prior to and on the 17th day of November, A. D. 1934 the respondent, through its Department of Public Works and Buildings, was engaged in repairing a portion of S. B. I. Boute 121, between the Village of Camargo and the Village of Murdock in Douglas County; that in the progress of said work, half of the road, longitudinally, was broken up and replaced by fresh concrete, and the other half of the road was kept open for traffic; that barriers two and one-half feet in height were placed at each end of the portion of the road being repaired, but that no warning signs, lights on said barriers, or other notice of the existence of such barriers was given to the traveling public; that on the date aforementioned, about 6:30 P. M., and after dark, claimant was driving his automobile in an easterly direction on said road at a reasonable rate of speed; that he was not familiar with said road, and was in the exercise of all due care and caution; that he came upon said barriers without any notice or warning of the existence thereof; that in order to avoid collision with the same and with another car coming from the opposite direction, he swerved and ran into one end of such barriers, as a result of which, his automobile turned over several times and was totally wrecked, and claimant sustained serious and permanent injuries; for all of which he claims damages in the sum of Three Thousand Dollars ($3,000.00).

The Attorney General has entered a motion to dismiss the case for the reason that in the exercise of its governmental functions, the respondent is not liable for the negligence of its servants and agents in the absence of a statute making it so liable.

The claimant, agrees with the proposition of law advanced by the Attorney General, but contends that he is entitled to an award by virtue of the provisions of Paragraph four (4) of Section six (6) of the Court of Claims Act which provides that the Court of Claims shall have power 11 to hear and determine all claims * * * * which the State as a sovereign commonwealth, should, in equity and good conscience, discharge and pay.”

The same contention was made in the case of Lois Bass vs. State, No. 2679, decided at the present term of this court, and in the case of Lester A. Royal vs. State, No. 2597, decided at the September, 1935, term of this court. In both of such cases, as in numerous previous cases, we held adversely to the contention of the claimant.

For the reasons and under the authorities set forth in the aforementioned case of Lester A. Royal vs. State, the motion of the Attorney General must be sustained.

Motion allowed. Case dismissed.


author: Me. Justice Yantis

text:
    (No. 2526
    Edward Kleppisch, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1936.

    Perry Hiles, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

By this proceeding claimant seeks to recover damages alleged to have been caused by the State of Illinois to the premises owned by him, because of the construction by respondent of S. B. I. Route No. 157 along the east side of claimant’s premises. Claimant’s property is a twenty-five (25) acre tract located on the south side of S. B. I. Route No. 11, a short distance west of Collinsville, Illinois. Prior to the construction of Route No. 157 there was a city addition just east of claimant’s property known as the Collinsville West End Addition; the west boundary of which, called Grand View Drive, separated said Addition from claimant’s property. Route No. 157 was constructed on this roadway, known as Grand View Drive and a by-pass or elevated bridge was placed at the intersection of No. 157 with S. B. I. Route No. 11. The latter road at the point in question runs practically east and west, and claimant’s property faces the same. His improvements consist of an eight room modern house, with bath, electric lights, water, gas and furnace; a basement under the entire building; a large barn; chicken house; garage and large hog barn. The house and outbuildings comprise about one and one-half acres, and there are twenty-five (25) acres in the tract. The property abuts Route No. 157 along the east side for a distance of eight hundred seventy-one (871) feet. There” is then a jog to the west in claimant’s eastern boundary line of twenty-seven (27) feet three (3) inches and his east line then extends south a further distance of seven hundred twenty-three (723) feet eight (8) inches along Route No. 157, leaving a space of twenty-seven (27) feet between that portion of his property line and the road. Claimant contends that prior to the construction in question he had ready and available access from said premises and each and every part thereof adjoining said highway or street, to and from said highway; that by the construction of the highway and the embankment complained of, the State changed the grade of said highway adjoining said premises; that the embankment so constructed extends from the north line of the premises southerly along the east line for a distance of three hundred twenty-seven (327) feet; that such embankment consists of a concrete wall from the level of the ground up to a height of eight feet and of an earthen embankment from the top of such wall an additional seven feet to the concrete slab, making an embankment fifteen feet in height at the northeast corner of claimant’s premises and with a gradual slope to grade line at the southern end; that claimant’s premises were thereby closed off from access to the street known as Grand View Drive, and separated from the property that lies to the east thereof known as Collinsville West End Addition; that back of the barns and other buildings there was available a tract fronting upon said Grand View Drive sufficient to make about seven, 50-foot, lots facing on said roadway or street and that access to all of said premises from the east was cut off by said embankment. Claimant further complains that the drainage of said premises had been interfered with not only by stopping the drainage which flowed eastward from said premises and along the roadway, but that much additional surface water is thrown on said premises from said embankment.

Damages are further sought because of depreciation in the value of the premises on account of the interference with the scenic view, dust from the highway and the cutting off of air and breeze from the dwelling house by the high embankment. Damages are asked in the sum of Nine Thousand Six Hundred Dollars ($9,600.00).

The proof shows that prior to the construction of the embankment in question, claimant had a beautiful home site, from which one could see far up the roadway on Route No. 11 to the east, with an attractive view from that side of the house toward the Sub-division mentioned; that now the embankment is twenty (20) feet from the house line and shuts out the entire view from both lower and upper windows, and the exhibits and testimony in evidence establish that access to the property from the east and the frontage of said premises on the east side thereof is entirely destroyed.

Respondent’s testimony discloses that a temporary grade crossing for Route No. 157 was built across Route No. 11 in 1931, and that the present elevated approach and embankment were constructed in the spring of 1934. A number of culverts have been constructed; one about one hundred ten (110) feet south of Route No. 11; another is about seven hundred (700) feet south of Route No. 11; the water from it goes down across the Kleppisch land. The water that falls on Route No. 157 flows in a southerly direction to a point about three hundred fifty (350) feet south of Route No. 11 and leaves the pavement and flows back in a northerly direction to a 12-inch tile that is along the westerly edge of the retaining wall. This tile connects with the culvert along the southerly side of Route No. 11. This drainage is intended to take care of the water that drains from the pavement for a distance of approximately four hundred fifty (450) feet south of Route No. 11; from that point south the water that falls on the westerly half of the slab drains directly to the Kleppisch land. There is no ditch along the westerly side of the right-of-way anywhere along the Kleppisch land; the retaining wall extends upward about one foot above the point where the earth fill begins, and the evidence is uncertain as to whether the dirt that washes down from the fill would wash over the top of the fill onto the Kleppisch land or not; but the proof seems to indicate that continued attention would have to be given by the highway maintenance crew to prevent such wash.

Evidence has been introduced from a number of witnesses as to the value of the premises before and after the construction of Route No. 157. The Kleppisch land had never been subdivided and from the evidence it appears that the best use for which the premises are adapted at this time is that for which they are in fact being used, i. e. residential and truck gardening purposes.

It has been held by this court that in the building and maintenance of highways and hard surface roads, the State is exercising a governmental function and therein acts in its sovereign capacity and therefore free from liability for injuries resulting.

Section 13 of Article 2 of the Constitution however provides as follows:

“Private property shall not he taken or damaged for public use, without just compensation. Such compensation, when not made by the State, shall he ascertained by a jury, as shall be prescribed by law.”

As previously held by this court, we regard this provision of the Constitution as being fundamental. Under the legislative act creating this court and under the foregoing provision of the Constitution, this court has taken the position that it had jurisdiction to fairly determine what damage, if any, claimant has in connection with a complaint of this character. Claimant does not contend that the State has taken any of his property, but he asks for consequential damage on account of the construction of the embankment complained of.

Injury or damage to property not taken, in the construction of an improvement, for which compensation is to be made, must be a direct physical injury or disturbance of a right which the owner enjoys in connection with the property or which causes damage in excess of that sustained by the public in general. If the convenience of the road to the balance of a tract will outweigh the inconvenience suffered by a certain selected portion, there can be no award. In the present case it does not appear that the construction of Route No. 157 is of any material benefit to that portion of the Kleppisoh land lying west of his dwelling, for such land already had a frontage on S. B. I. Route No. 11. That portion of his land which lies south of the point where the embankment begins is quite apparently benefited by "having a hard road extending across the front thereof. That portion which now faces the embankment in question has quite apparently lost the freedom of access on a direct frontage basis.

It has been repeatedly held by our Supreme Court that inconvenience or annoyance necessarily occasioned to the owners of abutting property during the progress of the work by the construction of an improvement, does not constitute damage to the property not taken, within the meaning of the Constitution, but is merely a burden incidentally imposed upon private property adjacent to a public work, without which, such improvements can seldom be made and which therefore give no cause of action. Chicago Flour Co. vs. City of Chicago, 243, Ill. 218; Osgood vs. City of Chicago, 154 Ill. 194; Grassle vs. State, C. of C. No. 2339.

Where a property owner’s right of access to his property has been destroyed or interfered with, he is entitled to compensation for the damages thereby sustained. Rigney vs. City of Chicago, 102 Ill. 64; Edward Nance, Admr., etc. vs. State, C. of C., No. 2012.

The proper measure of damages where property is not taken but is damaged for public use, is the difference between the fair cash market value of the property prior to the construction of the improvement and unaffected by it, and its fair cash market value after the construction of the improvement and as thereby affected, taking into account that benefits to lands not taken may be set off against damages to land not taken and that such damages must be direct and proximate and not merely speculative or remotely contingent. Dept. of Public Works vs. Caldwell, 301, Ill. 342; Dept. of Public Works vs. McBride, 338 Ill. 347.

The evidence herein ‘concerning values, as might be expected, is conflicting. One witness, Arthur Cohn, testified that in his opinion the value of the premises prior to the construction was Eighteen Thousand Five Hundred Dollars ($18,500.00), being Ten Thousand Dollars ($10,000.00) for the one and one-half acres and Eight Thousand Dollars ($8,000.00) for the balance; that the total damage was Nine Thousand Dolaxs ($9,000.00). This same witness testified to a sale of a tract of nine (9) acres near the Kleppisch land that was improved with three or four cottages and a four room house and restaurant for Four Thousand Two Hundred Dollars ($4,200.00) in 1931. Some of the witnesses testified that in their opinion the ground west of the house, equivalent to twelve (12) lots of fifty (50) feet each, fronting on Route No. 11, were damaged to the extent of One Hundred Fifty Dollars ($150.00) each, and that the one and one-half or two acres of grounds on which the buildings stood was damaged Four Thousand Dollars ($4,000.00) and that the balance of the land was not affected by the construction. Another witness, Charles Grronau, testifying for complainant, stated that in his opinion there was the equivalent of three (3) lots of fifty (50) feet each south of the building on Route No. 157 which were damaged to the amount of One Hundred Dollars ($100.00) per lot and that the one and one-half acres on which the building stood had suffered a depreciation of Six Thousand Five Hundred Dollars ($6,500.00). Another witness, N. O. McLean, testified that in his opinion the entire premises had been increased in value by reason of the construction.

Considering the record as a whole, the court is of the opinion that there has been a direct damage because of interference of ingress and egress to said premises which affects a limited portion of said premises and the damages are fixed at a sum of Three Thousand Dollars ($3,000.00).

An award is hereby entered in favor of claimant, Edward KLeppisch, of the sum of Three Thousand Dollars ($3,000.00.)


text:
    (No. 2160
    William J. Short, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1936.

    Jinkins & Jinkins, for claimant.
    Otto Kerner, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Prior to and on April 26th, 1931, claimant William J. Short was an inmate of the Quincy State Home for Soldiers and Sailors. On the last mentioned date he fell and sustained injuries to his jaw, and was taken to the hospital of such institution for attention and treatment.

Claimant alleges that the physicians, surgeons and nurses at such hospital failed, neglected and refused to give him proper care and attention, and failed and neglected to use proper skill in the treatment of his jaw, and continued in such failure, refusal and neglect for the period of one week; that thereafter he was taken to the Speedway Hospital in Chicago for treatment, and remained there for the period of nine weeks; that he has been permanently injured and deformed as the result of the carelessness, negligence and improper conduct of the physicians, surgeons and nurses at said hospital as above set forth, and asks for damages in the amount of $10,000.00.

The Attorney General contends that there is no liability on the part of the State, under the facts set forth in the declaration.

The rule is well established that the State, in the maintenance of its charitable institutions, is engaged in a governmental function, and that the State, in the exercise of its governmental functions, is not liable for the negligence of its servants and agents, in the absence of a statute making it so liable.

In 13 R. C. L. 944, Section 8, the rule is stated as follows:

“Strictly public institutions created, owned and controlled by the State or its subdivisions, such as State asylums for the insane, city hospitals, reformatories, etc., are not liable for the negligence of their agents. The doctrine of respondeat superior does not apply. They are held to be governmental agencies brought into being to aid in the performance of the public duty of protecting society from the individual unfortunate or incompetent in mind, body or morals, and the rules applicable to municipal corporations and public offices generally are applied.”

The rule above set forth is recognized and applied in the case of Tollefson vs. City of Ottawa, 228 Ill. 134, as well as in the case of Lilly Bell Jones vs. State, 8 C. C. R. 77, and Lillian Pelli vs. State, 8 C. C. R. 324.

Even if the respondent were a private corporation, there would be no liability on the facts set forth in the complaint.

Parks vs. Northwestern University, 218 Ill. 381.
Hogan vs. Chicago Lying-in Hospital, 335 Ill. 42.
Simon vs. Pelouse, 263 Ill. App. 177.

There is no statute making the State liable under the facts in this case, and award must therefore be denied.

Award denied. Case dismissed.


author: Mr. Chief Justice Hollerioh

text:
    (No. 2714
    The Alton Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1936.

    William L. Patton and Silas H. Stbawn, for claimant.

      Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of the court:

Claimant demands the sum 'of $26.73 for freight charges on certain shipments of merchandise transported over its lines from the Southern Illinois Penitentiary at Menard, Illinois and from the Illinois State Penitentiary at Joliet, Illinois to the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. All shipments were carried at the established traffic rate for such merchandise and the freight charges therefor remain wholly unpaid.

It is admitted that the merchandise was received by the consignee, and Mr. A. L. Bowen, Director of the Department of Public Welfare, in his report on the claim, stated that the same should be paid.

Award is therefore entered in favor of the claimant for the amount claimed, to-wit, Twenty-six Dollars and Seventy-three Cents ($26.73).


text:
    (No. 2686
    The Baltimore & Ohio Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1936.

    Graham & Graham, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of the court:

Between March 28th, 1933 and June 10th, 1933 claimant transported six shipments of merchandise to and from Springfield, Illinois for the Division of Highways of the respondent. The several shipments were received and carried on the credit of the respondent, and the total charges therefor were $15.84. On December 22d, 1933 freight bills so due were presented to the Department of Public Works and Buildings, Division of Highways, but payment was refused on account of the fact that the appropriation therefor had lapsed.

There was no unreasonable delay on the part of the claimant in presenting the claim; no question is raised as to the amount charged; and Mr. Ernst Leiberman, Chief Highway Engineer, in his report on the claim, states that the same should be allowed.

Award is therefore entered in favor of the claimant for the amount claimed, to-wit, Fifteen Dollars and Eighty-four Cents ($15.84).


author: Mr. Chief Justice Hollbrich

text:
    (No. 2731
    James Clark, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1936.

    James Clark, pro se.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollbrich

delivered the opinion of the court:

Claimant, in his complaint filed herein on September 27th, 1935, alleges in substance that on August 12th, 1935 he parked his Packard sedan automobile at 111 North Madison Street in Rockford, Illinois; that while his automobile was so parked, the driver of State truck No. M-9 carelessly, negligently, wilfully and wantonly backed said State truck into and against said Packard sedan, and that the same was thereby damaged to the extent of $23.00, for which amount claimant seeks to be recompensed in this proceeding.

We have repeatedly held that the State in the exercise of its governmental functions, is not liable for the negligence of its employees and agents under the doctrine of respondeat superior in the absence of a statute making it so liable. The liability, if any, rests upon the driver of the truck, and not upon the State. This has been held in so many cases that the citation of authorities is unnecessary.

There is no statute making the State liable for the negligence of the driver of the State truck involved in the accident in question, and award must therefore be denied.

Award denied. Case dismissed.


author: Mr. Justice Yantis

text:
    (No. 2747
    C. L. Frame Dental Supply Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1936.

    C. L. Frame Dental Supply Company, pro se.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant is an Illinois corporation engaged in the sale of dental supplies. On May 18, 1933 it received a purchase requisition in the regular course of business from the Kankakee State Hospital for merchandise as set out in the claim herein filed in the sum of Twenty-six and 77/100 Dollars ($26.77). The merchandise in question was duly received by the State Hospital but in some manner the invoice was mislaid, and claimant asks an award in the sum of Twenty-six and 77/100 Dollars ($26.77). Apparently the only reason that the claim has not been paid is that the appropriation for the period during which the purchase was made has lapsed.

As stated in the case of Shell Petroleum Corporation vs. State, 7 C. C. R. 224 and numerous other cases, “Where it clearly appears that materials have been legally sold, delivered to, and used by a State Department and have not been paid for, an award will be made therefor on a claim filed in apt time.”

An award is therefore made in favor of claimant in the sum of Twenty-six and 77/100 Dollars ($26.77) in settlement of said claim.


author: Me. Justice Tantis

text:
    (No. 2690
    Louis C. Miller, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1936.

    Louis C. Miller, pro se.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Me. Justice Tantis

delivered the opinion of the court:

Claimant seeks a refund of Eight Dollars ($8.00) for overpayment of Four Dollars ($4.00) per year auto license fees in the years 1932 and 1933. Claimant was the owner of an Auburn automobile built in 1929, Motor No. 2784. The correct H. P. rating is 24.20, which requires a fee of Eight Dollars ($8.00). Claimant’s contention that he paid Twelve Dollars ($12.00) for the year 1933 is not supported by the record which shows that he paid the correct fee of Eight Dollars ($8.00) for 1933 License No. 835-314, for the car in question. In 1932 however an incorrect H. P. rating of “30” was used for which a fee of Twelve Dollars ($12.00) was collected by the Secretary of State and a refund of Four Dollars ($4.00) is due claimant under the previous rulings that, where it appears from the undisputed facts that a tax in excess of the amount due has been paid through a mutual mistake of fact an award will be made.

An award is therefore made in favor of claimant in the sum of Four Dollars ($4.00).


author: Mr. Justice Tantis

text:
    (No. 2596
    Charles Parrish, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1936.

    Charles Parrish, pro se.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

On February 6, 1935 claimant filed his application for refund for over-payment of auto license fees made by him under a mistake of fact. From the complaint and records of the Secretary of State’s Office it appears that claimant paid Twelve Dollars ($12.00) per year license fees for Dodge 1930 sedan for the years 1931, 1932 and 1933, the horse power being 23.4 and claimant having paid on the H. P. basis of 27.3. The correct license fee would have been Eight Dollars ($8.00) per year instead of Twelve Dollars ($12.00), and claimant seeks a refund of Twelve Dollars ($12.00) so over-paid by him.

Each of the payments so made by claimant were seemingly the result of a mistake of fact, and under the law as set forth in the case of Moorman Mfg. Company vs. State, Court of Claims No. 1886, claimant is entitled to a refund of the amount thus over-paid through such mistake.

An award is therefore hereby entered in favor of claimant for the sum of Twelve Dollars ($12.00).


text:
    (No. 2426
    Shell Petroleum Corporation, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1936.

    W. W. Yeager, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeks an award of Fifty-six and 70/100 Dollars ($56.70) for gasoline sold to the Department of Public Welfare. The invoice has been verified and approved by that department and in the ordinary course of business has been vouchered from the permanent appropriation of that office. That appropriation having lapsed the claim was filed with the Court of Claims at the suggestion of A. L. Bowen, Director of the Department of Public Welfare.

As stated in Franklin County Coal Company vs. State, 7 C. C. R. 114 and numerous other cases, “Where it clearly appears that materials have been delivered to, and used by the State Department and not been paid for, an award will be made therefor for a claim filed in apt time.”

This claim seeming to come within the rule an award is hereby made in favor of claimant in the sum of Fifty-six and 70/100 Dollars ($56.70.)


author:
      Mr. Justice Yantis
      Per Curiam:

text:
    (No. 2612
    The Equitable Life Assurance Society of the United States, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1936.

      Rehearing denied May 12, 1936.

    Carl N. Weilepp, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Complainant herein alleges that oh August 1, 1924 one Morgan S. Thurston and wife, Nellie U. Thurston, being then the owners of the real estate described in said complaint, containing One Hundred Seventeen and One-half (117%) Acres more or less in Macon County, Illinois, conveyed the said real estate by mortgage deed to the Dighton-Dilatush Loan Company to secure a note for Eleven Thousand Dollars ($11,000.00); said mortgage and note were thereafter on August 6,1924 assigned to the claimant; that on June 7, 1928 said Morgan S. Thurston and Nellie U. Thurston, his wife, made a dedication of right-of-way for public road purposes in and by which they conveyed and dedicated to the people of the State of Illinois for the purpose of a public highway a portion of said real estate, described by metes and bounds and containing Three and Fifty-nine One-hundredths (3.59) Acres more or less; that the State of Illinois went upon said land and constructed a road over same known as S. B. I. Route No. 48 and that the State of Illinois is now using said Three and Fifty-nine Hundredths (3.59) Acres as a public highway; that thereafter Morgan S. Thurston and Nellie U. Thurston defaulted in payment of said mortgage note and claimant by virtue of its rights under the statute foreclosed said mortgage in the Circuit Court of Macon County, Illinois; that a sale was duly had thereunder at which claimant became the purchaser, and thereafter on October 30, 1934 received a deed from the Master-in-Chancery and by virtue thereof became and is the owner of said One Hundred Seventeen and One-half (117%) Acres as described in said mortgage including the land dedicated for highway purposes; that the State or its agents paid to Morgan S. Thurston and wife the sum of One Thousand Four Hundred Dollars ($1,400.00) for the dedication deed and that such dedication not having been made until June 7, 1928, claimant’s rights are prior to and superior to those of the State of Illinois, as the mortgage deed by and through which claimant obtained title was dated August 9, 1924.

Claimant complains that all the rights held by Morgan S. Thurston and wife in said premises have ceased; that claimant holds title to said Three and Fifty-nine One-hundredths (3.59) Acres, and that the State of Illinois is using same for highway purposes contrary to the rights of claimant and without compensation to it and it herein seeks an award for One Thousand Four Hundred Dollars ($1,400.00) for the land occupied by said section of road.

It appears from the record that the foreclosure suit was regularly instituted and the sale of real estate thereunder made pursuant to statute. The real estate offered for sale was that described in the mortgage without any reference to the dedication for highway purposes made subsequent to the mortgage and prior to said foreclosure. The State of Illinois was not made a party defendant in said foreclosure, due no doubt to the fact that under our constitutional provisions the State cannot be properly made a party defendant in such case. The record does not show that any notice was given to the holders of the mortgage of the fact that the State was taking a dedication from the owners for road purposes; no release was obtained from the holders of the existing mortgage at that time, and settlement for the land taken was made by payment to Morgan S. Thurston and wife of the full consideration of One Thousand Four Hundred Dollars ($1,400.00). Why a release was not obtained from mortgagees or its assignee does not appear.

The foreclosure sale resulted in a bid from claimant of Eleven Thousand Three Hundred Eighty Seven and 45/100 Dollars ($11,387.45), which was Eight Hundred Ten and 42/100 Dollars ($810.42) less than the full amount of the debt, interest and costs and a Deficiency Decree was rendered against Morgan S. Thurston and Nellie U. Thurston in favor of the holder of the mortgage for said sum of Eight Hundred Ten and 42/100 Dollars ($810.42.) A receiver was appointed and he thereafter paid the full amount of such deficiency.

The Attorney General contends on behalf of respondent that because the claimant herein received the fnll amount of his debt, interest and costs no further award of any kind could inure to him, for the reason that if any additional sum should come into his hands in connection with such mortgage transaction, such additional sum would belong to the original mortgagors, and that the latter having already been paid by the State could have no such claim for an additional payment.

Claimant contends that its claim for an award from the State is not based upon its rights as the mortgagee in said transaction, but that such right exists by reason of the fact that it stands as the purchaser of One Hundred Seventeen and One-half (117%) acres of land described in a mortgage on land on which no other lien existed at the time such mortgage deed was executed.

We do not believe that claimant is entitled to be regarded entirely in the light of an innocent third person as purchaser herein. The purchaser at a Judicial Sale is chargeable with notice of the facts disclosed by the record of the proceedings in the case which result in the judgment under which the sale is being held but is not bound to look beyond the -decree or judgment where facts necessary to give jurisdiction appear on the face of the record.

As held in Bybee vs. Ashby, 2 Gilm, 151, “Although innocent purchasers will be protected where process is voidable only yet the same reasons of policy do not exist where a judgment creditor is the purchaser. ’ ’

The rule that a purchaser at a judicial sale takes notice of the rights of those in actual possession of the land sold is particularly applicable to the claimant herein. “The rule of caveat emptor applies to judicial sales unless fraud or mistake has entered into the transaction whereby the purchaser has been deceived and induced to make the purchase.” (Meinshausen vs. Hannah, 219 A. 278.)

After Thurston, the owner of the real estate here involved, had executed and delivered his mortgage thereon, he remained in full possession of the One Hundred Seventeen and One-half (117%) Acres and retained all legal rights thereto except to have the same applied by sale to the payment of the indebtedness secured by said mortgage; and except for the mortgagee’s right to receive payment in full for the indebtedness secured by such mortgage, Thurston had a right to create the road easement.

If claimant desires to be considered herein as purchaser, as distinguished from its position as mortgagee, then the rules applicable to a disinterested purchaser would apply. In Rock Island and Peoria Ry. Co. vs. Dimick, No. 144-628, plaintiff sought to enjoin the closing of two cattle-ways under appellant’s railroad. Plaintiff claimed to have originally had a written contract from the Peoria and Rock Island Railroad Co. granting to him the use of said passage-ways, but such contract was disputed and was not an evidence. However, plaintiff had maintained the passage-ways in an open, visible and apparent manner for many years. Defendant railroad had acquired title to the right-of-way francliise and property of the Peoria and Rock Island Railroad Co. by purchase at foreclosure sale and denied that the passage-ways were left by virtue of any contract but existed for the purpose of permitting drainage, and averred that its purchase at said foreclosure sale was made in good faith and for value without notice of the equities set up by plaintiff. The court said: “A purchaser — seeing the mode in which the land was fenced and the use of openings, etc.— would be put upon inquiry as to the rights and title by and under which they were so held — if the facts and circumstances apparent were sufficient to put defendant upon inquiry defendant is chargeable with notice of all that such inquiry would have shown. ” In a further quotation appearing in the same case, the court says: “The occupancy of the passageway by the plantiff was sufficient to charge the defendant (the purchaser at judicial sale), with notice of the plaintiff’s rights thereto arising from the agreement.”

The claimant herein cannot claim that at the foreclosure sale it intentionally bought a claim against the State of Illinois in addition to whatever land the Master-in-Chancery was then and there able to convey under the decree of foreclosure. As held in the case of Sands vs. Wacaser, 149-530, “Possession by a railroad company of land is notice to a purchaser that the company was there under a claim of right, and he cannot claim as a bonafi.de purchaser where the slightest inquiry either of his grantor or of the railroad would have advised him of the extent and nature of that right, and that the possession was under an agreement for a deed.”

We are of the opinion that the facts here shown constitute a legal defense to plaintiff’s claim, and that the application for an award should be denied. The claim is therefore denied and dismissed.

Opinion on Rehearing.

Per Curiam:

The above cause now coming before the court .upon claimant’s petition for a rehearing and the court having duly considered said petition and examined the record herein, finds that there is nothing appearing in said petition or in a consideration of the record in chief which causes the court to change or modify the views previously held in the original opinion heretofore filed in this cause, and the petition for a rehearing is therefore denied.


text:
    (No. 2572
    Wray Call, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 12, 1936.

    F. A. Ortman and Stevens & Herndon, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein was employed by respondent as superintendent of carpentering at the Pontiac Reformatory and was injured in the course of his employment on January 10, 1934, the injury resulting in the loss of the first phalange of the fourth finger on his left hand, injuries to the third finger resulting in a total and permanent loss of its use. The complaint and record herein show that the work shop where claimant was employed was equipped with power-driven machinery and claimant was operating a power-driven jointer which consists of a cylinder with four knives about twenty inches long. Proper notices are shown to have been given and the claim filed within one year from the date of the accident, as provided by the Workmen’s Compensation Act.

Under a stipulation of facts filed herein it appears that claimant was provided the necessary first aid and all medical and surgical services thereafter which were reasonably required to relieve him from the effects of the injury, and that he has been paid compensation during the period of his temporary total incapacity by reason of said injury. His wages were Thirty Dollars ($30.00) per week.

The injury arose in the course of and out of the employment in question and claimant is entitled to compensation for the loss of the third finger on the basis of one-half (%) the weekly wage for twenty-five (25) weeks, and for the loss of the first phalange of the fourth finger on the basis of ten (10) weeks.

An award is therefore made on the total basis of thirty-five (35) weeks at one-half (%) the weekly wage or Fifteen Dollars ($15.00), making a total award of Five Hundred Twenty-five Dollars ($525.00) for the specific loss herein claimed.

This award being subject to the provisions of an Act entitled “An Act making cm appropriation to pay compensation claims of State employees and providing for the method of payment thereofapproved July 2d, 1935' (Session Laws of 1935, p. 49), and, by the terms of such Act, being subject to the approval of the Governor, upon such approval is payable from the General Revenue Fund in the manner provided by such Act.


text:
    (No. 2764
    John H. Camlin Co., Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 12, 1936.

    John H. Camlin Co., I'no., pro se.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

On July 1, 1933 claimant herein, John Camlin Company, Inc., entered into a lease with the State of Illinois for certain premises to be .used for Armory purposes. Under the terms of the lease the State was to pay to the City of Rockford water rent for all water used on the premises. The complaint recites that the water rent has not been paid for the period from March 8, 1935 to June 17, 1935 and remains due and unpaid in the sum of Forty and 35/100 Dollars ($40.35), for which claimant seeks an award.

A report from the Adjutant General’s Office, appearing in the record, states that the claim is a just one; that the terms of the lease are correctly set forth and that said water rental accrued in fact, and that the reason for non-payment heretofore is due to the fact that the Adjutant General’s Department did not receive the bill until after September 30, 1935, at which time the appropriation made by the 58th General Assembly to cover ordinary expenses for the Illinois National Guard had lapsed, leaving no funds on hand from which this claim could then be paid.

As in the case of Shell Petroleum Corporation vs. State, 7 C. C. R. 224, ‘ ‘ Where the facts are undisputed that the State has received supplies, legally contracted for by it, and payment has not been made because of the lapse of an appropriation an award will be made.” There is nothing in the record, however, to show that the claimant has advanced the water rent in question to the City of Rockford, and under the terms of the lease and the statements contained in the complaint, the latter is the one to whom such payments are due.

An award is therefore made in the sum of Forty and 35/100 Dollars ($40.35) in favor of John H. Camlin Company, Inc. for the use of the City of Rockford, Illinois.


author: Mb. Justice Tantis

text:
    (No. 2710
    Freeport Floral Company, J. E. Steffen Flower Shop, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 12, 1936.

    Claimant, pro se.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Justice Tantis

delivered the opinion of the court:

Claimant herein seeks a refund of Twelve Dollars ($12.00) for truck license. The complaint recites that the license was purchased in April, 1935 and that the truck for which it was bought was only used about six days when same (a 1926 Model) “went completely to pieces.” Not being able to longer make use of the truck claimant conceived the idea that he should have a refund of the license fee.

The Attorney General has filed a motion to dismiss the claim for the reason that same was a legal fee lawfully collected and that the statute contains no provision for a refund for any proportionate part of the year during which the holder thereof may voluntarily or involuntarily discontinue the use of the vehicle for which such license was obtained. The position of the Attorney General is well taken and the motion is hereby allowed and the claim dismissed.


text:
    (No. 2765
    W. S. Hennessey Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 12, 1936.

    W. S. Hennessey Company, pro se.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Tantis

delivered the opinion of the court:

Claimant seeks a refund of Eight and 50/100 Dollars ($8.50) for initial license fee on issue of stock. On June 12, 1935. claimant paid to the Secretary of State the sum of Eighteen and 50/100 Dollars ($18.50) in settlement of franchise tax,

Franchise Tax .............................................$10.00
Initial License Fee on $17,000.00 additional stock............. 8.50
Total $18.50

Said payment was made pursuant to notice from the Secretary of State’s Office under date of May 10, 1935 based on an error in claimant’s annual report. Under the existing law the W. S. Hennessey Company was permitted to file an amended annual report. Under Paragraph 96, Chapter 32 of the Illinois Revised Statute on Corporations if such report is returned for correction prior to April 1st the penalties therein provided for shall not apply. Paragraph 100 provides that if the franchise tax is adjusted, the amount of the penalty shall be adjusted to ten per cent (10%) of the adjusted tax; provided, however, if the corporation fails to apply to the Secretary of State for an adjustment before or on June 25th, an additional penalty of five per cent (5%) shall be paid.

As proper application for adjustment was herein made a refund is due claimant but as such adjustment was not made until after June 25th, the five per cent (5%) penalty, being Fifty Cents (50c) on the Ten Dollars ($10.00) correctly assessed, became effective. Deducting the Fifty Cents (50c) from the Eight and 50/100 Dollars ($8.50) erroneously assessed, leaves the net amount due claimant Eight Dollars ($8.00).

An award is therefore hereby made in favor of claimant in the sum of Eight Dollars ($8.00.)


text:
    (No. 2480
    Harry P. Keller, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 12, 1936.

    John P. Snigg, for claimant:
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

For some time prior to January 31st, 1934 claimant was a Civil Service employee of the respondent, and was working as a carpenter at the Jacksonville State Hospital under the Department of Public Welfare. His wages were $6.00 a day and he worked five days a week.

On January 31st, 1931 he was served with a notice of discharge, together with a statement of the cause therefor, to-wit, the reduction of institutional expenditures. On February 28th, 1931 a copy of such statement was filed in the office of the Civil Service Commission with a notation thereon showing proof of service of a copy of said statement upon the claimant.

Claimant contends that his discharge was not effective until February 28th, 1931, and that therefore he is entitled to his wages during the period which elapsed from January 31st, 1931 to February 28th, 1931, to-wit, $126.00; and bases his contention on the second paragraph of Section 12 of an Act entitled “An Act to Regulate the Civil Service of the State of Illinois”, commonly known as the State Civil Service Act, Smith-Hurd Revised Statutes, 1933, Chapter 24%, which reads as follows:

“In every ease of removal, discharge or reduction, a statement of the cause therefor shall be set forth in writing, which statement shall be in duplicate, and shall be signed by the appointing officer. One copy of said statement shall be delivered personally to the employee and the other copy of said statement shall be filed in the office of the Civil Service Commission, with a notation thereon showing proof of service of a copy of said statement upon the employee. Upon .the filing of a copy of said statement with the notation aforesaid, in the office of the Civil Service Commission, the removal, discharge or reduction shall immediately become effective.” •

The Attorney General contends that under the provisions of said Section 12 of the Civil Service Act, claimant’s discharge was effective immediately upon service of notice thereof upon him, and that he is not entitled to recover anything whatsoever in this proceeding. However, from the view we take of the case, it is unnecessary to determine the effective date of claimant’s discharge.

By agreement of parties, the claim is submitted on the complaint and the report of A. L. Bowen, Director of the Department of Public Welfare. The complaint alleges that claimant tendered his services on divers occasions between January 31st and February 28th, 1934 and that he stood ready and willing at all times to render such services.

The report of the Director of Public Welfare sets forth that claimant “accepted the notice of January 31st, 1934, and left the service of the State of Illinois. At no time between January 31st and February 28th, did he tender his services.”

Sections 29 and 30 of the Civil Service Act read as follows:

“Sec. 29. No treasurer, paying, fiscal or auditing officer of State shall approve the payment of, or be in any manner concerned in paying any salary or wages to any person for services, as an officer or employee in the service of the State, unless such person is occupying an office or place of employment according to the provisions of law, and is actually performing the duties thereof, and is entitled to payment therefor.
“Sec. 30. No paymaster, treasurer, or other officer or agent of the State shall wilfully pay, or be in any manner concerned in paying any person any salary or wages for services as an officer or employee of the State, unless such person is occupying an office or place of employment according to the provisions of law, and is actually performing the duties thereof, and is entitled to payment therefor.”

We have no authority to allow any claim which the Auditor is prohibited from approving or the Treasurer from paying. Consequently it was incumbent upon the claimant under his own view of the case, to establish by the greater weight of the evidence, not only that he was in the employ of the respondent, but also that he either performed the duties of his position during the time for which he seeks payment, or that he tendered the performance thereof and such tender was refused. Claimant has failed to make the necessary proof in that behalf, and therefore we have no authority to enter an award. Award denied. Case dismissed.


author: Mr, Chief Justice Hollerich

text:
    (No. 2733
    New Era Optical Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 12, 1936.

    Benjamin Weinberg, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr, Chief Justice Hollerich

delivered the opinion of the court:

Claimant seeks to recover the sum of $45.50 for merchandise ordered by Chicago State Hospital, Department of Public Welfare, on April 11th, 1933 and delivered by claimant to such hospital on April 12th, 1933. Invoice was presented on the date of delivery, and was vouchered by the Chicago State Hospital and sent to the Department of Public Welfare at Springfield for payment. It does not appear why the bill was not paid at that time. When the attention of the Department of Public Welfare was again called to the matter, the appropriation from which payment should have been made had lapsed.

It is admitted that the merchandise in question was received by the Chicago State Hospital and no objection is made as to the amount of the claim. There was no delay on the part of the claimant in presenting its claim, and the failure to make payment seems to have resulted from some oversight on the part of the representatives of the respondent.

Award is therefore entered in favor of the claimant for the sum of Forty-five Dollars and Fifty Cents ($45.50).


text:
    (No. 2742
    Walter Ortgeisen, County Treasurer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 12, 1936.

    Edward A. Jones, for claimant.

      Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Plaintiff herein as County Treasurer of Lee County has filed his claim for Four Hundred Thirty-two Dollars ($432.00) for coroner’s fees heretofore advanced by that county for inquests and inquiries held in connection with the death of inmates of the Dixon State Hospital. The itemized list includes twenty-two cases where inquests were held at a charge of Sixteen Dollars ($16.00) each and sixteen “inquiries” at Five Dollars ($5.00) each over a period from July 1,1931 to July 1, 1933. Proper effort appears to have been made by the coroner to collect his fees from the estates of the deceased persons. A revised list or claim was later filed. In and by same it appears that the name of Dominick J. Brunett should not be included in the list of inquests and that the award now sought is restricted to the remaining twenty-one inquests included in the original claim.

The claim as amended is a proper charge against the State, under the provisions of Sec. 26, Chap. 53 and Sec. 27 of Chap. 85 of the Ill. Bevised Statutes, and an award is therefore hereby made for twenty-one cases at Sixteen Dollars ($16.00) each or a total of Three Hundred Thirty-six Dollars ($336.00).


author: Mb,. Chief Justice Hollebich

text:
    (No. 2776
    Pantagraph Printing & Stationery Company, a Corporation, Claimant vs. State of Illinois, Respondent.

      Opinion filed February 12, 1936.

    Claimant, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb,. Chief Justice Hollebich

delivered the opinion of the court:

On April 19th, 1935 the respondent, through the Illinois School for the Deaf at Jacksonville, ordered from the claimant Eighteen (18) diplomas at a cost of $50.69. The diplomas were delivered by claimant, and respondent was duly billed therefor. Through an error on the part of the Department of Public Welfare, the bill was filed too late to be paid out of the appropriation of the current biennium.

There was no negligence on the part of the claimant in presenting its bill and no question is raised as to the amount thereof.

Under the facts presented the claim should be allowed. Award is therefore entered in favor of the claimant for the sum of Fifty Dollars and Sixty-nine Cents ($50.69).


text:
    (No. 2706
    A. C. Robb, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 12, 1936.

    Donovan D. MoCabty, for claimant.
    Otto Kebneb, Attorney General; Glenn A. Teevob, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

For ten years prior to the filing of the complaint herein, claimant was engaged in the restaurant business in the City of Olney, Illinois. Just prior to May 1st, A. D. 1935 claimant sold beer in his said restaurant under a retailer’s license issued by the Illinois Liquor Control Commission of this State, which said license expired April 30th, 1935.

On April 23d, 1935 claimant made application to said Commission for a renewal of his said license for the year commencing May 1st, 1935, and forwarded said application together with the required fee of $50.00, to said Commission. Said application was approved for license by said Commission on May 1st, 1935, and formal receipt therefor was duly issued and forwarded to claimant under date of May 9th, 1935.

Thereafter, to-wit, on May 22nd, 1935, license was duly issued to claimant in accordance with his previous application and the aforementioned approval thereof by said Commission.

On May 1st, 1935 claimant ceased selling beer in his restaurant on account of the fact that a review of his previous year’s business showed no profit from handling the same, and has not sold any since that date.

Prior to the issuance of said license by the Liquor Control Commission as aforesaid, and on, to-wit, May 11th, 1935, claimant applied to said Commission for a refund of the license fee theretofore paid by him. Such application for refund was denied by the Commission for the reason that, under the facts in this case, it had no authority pursuant to the statute to make such refund.

Under the terms and provisions of the Ulinois Liquor Control Act (State Bar Association Revised Statutes of 1935, Chapter 43), provision is made for a refund in the following cases, to-wit:

(1) Where the application is denied. (Art. 7, Sec. 2.).

(2) In case of the death, insolvency or bankruptcy of the licensee, where the unexpired term exceeds the allowable operating period provided for under the statute (Art. 6, Sec. 1).

(3) Where the political subdivision, district, precinct or group of precincts in which the licensed premises are situated becomes prohibition territory during the term of the license (Art. 9, Sec. 16).

The foregoing are the only contingencies in which refunds are authorized by the Liquor Control Act. We must assume, therefore, that it was the intention of the Legislature that refunds should not be made in any other cases. If the Legislature had intended to authorize refunds in any cases other than those above mentioned, we must assume that specific provision therefor would have been made in the Act.

It is a general priñciple of statutory interpretation that the enumeration of certain specified things implies the exclusion of all others not therein mentioned. People vs. Collins, 351 Ill. 551-555; Consolidated Coal Co. vs. Miller, 236 Ill. 149-152; People’s Loan and Homestead Assn. vs. Keith, 153 Ill. 609-618.

Furthermore, the general rule of law appears to be that a licensee, upon the voluntary surrender of his license or certificate, is not entitled to a rebate or refund of the license fee paid by him in the absence of a statute expressly authorizing such rebate or such refund. The rule is set forth in 33 Corpus Juris, page 572, Section 180, as follows:

“A licensee or holder of a liquor tax certificate, upon the voluntary surrender of his license or certificate, is not, in the absence of a statute, entitled to a rebate for the unexpired portion of his license or certificate. But in some jurisdictions provision has been made by statute for a rebate in such cases."

And in 37 Corpus Juris, page 255, Section 130:

“Where the fee or tax which has been paid was not illegal or unauthorized, it cannot be recovered back irrespective of whether its payment was voluntary or involuntary, and although the method of its collection was irregular.”

In 15 R. C. L., p. 315, Sec. 76, the rule is stated in the following language:

“It seems to be well settled that ordinarily a licensee does not on the voluntary surrender of his license, become entitled to the return of the license fee, in proportion to the unexpired term, in the absence of a statutory enactment to the contrary.”

The statute does not authorize a refund under the facts in this case, and under the law as above set forth, we have no authority to allow an award.

Award denied. Case dismissed.


text:
    (No. 2754
    Maurice P. Rogers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 12, 1936.

    Maurice P. Rogers, pro se.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant is duly licensed as a practicing physician and surgeon, and filed his claim herein on November 7th, 1935 for the sum of $21.00, for first aid and subsequent medical services rendered to one Charles Daly, between May 23d, and June 17th, 1933, both dates inclusive.

It appears that on May 22nd, 1933 Daly was an employee of the respondent as a highway policeman; that on said date he sustained accidental injuries which arose out of and in the course of his employment; that claimant treated him professionally for such injuries; that Daly attempted to make collection of the amount of claimant’s bill from the parties responsible for the accident, but was unable to do so, and was thereby delayed in filing his claim against the State.

Under the provisions of Section 8-a of the Workmen’s Compensation Act, respondent is liable for the services rendered by the claimant as aforesaid. It is not contended that the charges are unreasonable and no reason is suggested why the claim should not be paid.

Award is therefore entered in favor of the claimant for the sum of Twenty-one Dollars ($21.00).

This award being subject to the provisions of an Act entitled “An Act making w% appropriation to pay compensation claims of State employees and providing for the method of payment thereof,” approved July 2d, 1935 (Session Laws of 1935, p. 49), and, by the terms of such act, being subject to the approval of the Governor, upon such approval is payable from the Road Fund in the manner provided in such Act.


text:
    (No. 2642
    Dr. J. L. Rosengard, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 12, 1936.

    Harry Levitón, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed his claim herein on March 29th, 1935 to recover the sum of $20.50 for first aid and subsequent medical services rendered to Robert Jaros, a State employee, between June 2d and June 13th, 1933, both dates inclusive.

It appears from the stipulation on file that on June 2d, 1933 Jaros was an employee of the Division of Highways; that on said date he sustained accidental injuries which arose out of and in the course of his employment; that he was taken to the office of claimant for treatment; and that claimant rendered professional services to said Jaros in the amount of $20.50.

Under the provisions of Section 8-a of the Workmen’s Compensation Act, respondent is liable for such services and award is therefore entered in favor of the claimant for the sum of Twenty Dollars and Fifty Cents ($20.50).

This award being subject to the provisions of an Act entitled “An Act makmg an appropriation to pay compensation claims of State employees and providing for the method of payment thereofapproved July 2d, 1935 (Session Laws of 1935, p. 49), and, by the terms of such act, being subject to the approval of the Governor, upon such approval is payable from the Road Fund in the manner provided by such Act.


text:
    (No. 2280
    Louis Shanks, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 12, 1936.

    John W. Feebley, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed his complaint herein on November 29th, 1933 and alleges therein that on August 27th, 1932 about 3:15 P. M., he was driving a team of horses hitched to a wagon, in an easterly direction on S. B. I. Route No. 24, about a mile east of the City of Taylorville; that he was observing the rules of the road and exercising all due care and caution for the safety of himself and others; that one George Greash, a member of the State Highway Police, who was driving a Ford roadster, in the performance of his duties, then and there negligently drove his.said car into and against the wagon in which claimant was riding, with great force and violence, whereby said wagon was demolished, claimant was injured, and one of the horses was so seriously injured that it had to be shot; for all of which damages claimant asks an award in the amount of $238.00.

The Attorney General has moved to dismiss the case on the ground that the respondent is not liable for the negligence of its said agent.

We have held in numerous cases that the State in the maintenance and policing of its hard-surfaced roads is exercising a governmental function. We have also repeatedly held that the State in the exercise of its governmental functions is not liable for the negligence of its servants and agents in the absence of a statute making it so liable. Peterson vs. State, 6 C. C. R. 77; Chumbler vs. State, 6 C. C. R. 138; Braun vs. State, 6 C. C. R. 104; Derby vs. State, 7 C. C. R. 145; Bucholz vs. State, 7 C. C. R. 241; Ryan vs. State, 8 C. C. R. 361.

This rule is supported by numerous decisions of the Supreme Court of this State. Hollenbeck vs. County of Winnebago, 95 Ill. 148; City of Chicago vs. Williams, 182 Ill. 135; Kinnare vs. City of Chicago, 171 Ill. 332; Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.

There is no statute making the State liable under the facts in this case and award must therefore be denied. The liability, if any, rests upon the servant or agent whose negligence was responsible for the damages sustained.

Award denied.


author: Mb. Justice Yantis

text:
    (No. 2285
    Rudolph Sincula, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 12, 1936.

    Daniel D. Glasses, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Plaintiff filed his claim herein on December 7, 1933 for an award of One Hundred Fifty Dollars ($150.00) alleging that on August 3, 1933 while engaged as a private in the Illinois National Guard in the performance of his duty at Camp Grant he received an injury to his knee resulting in incapacity from doing any work for a period of seven (7) weeks and causing him to incur various items of expense including railroad fare to and from Ft. Sheridan, Illinois. On April 5, 1934 a stipulation of fact was filed where it was agreed that claimant on August 3, 1933 was a private in Company L, 132nd Infantry; that on that date he fell from a truck going to the rifle range at Camp Grant, thereby suffering an injury to his knee while in the line of duty; that he is entitled to the minimum allowance under the Workmen’s Compensation Act of Seven and 50/100 Dollars ($7.50) per week for seven (7) weeks and an additional sum of Seven and 50/100 Dollars ($7.50) to cover expense incurred in curing himself of the injuries suffered.

The statement of facts cannot bind the court, as the question of what, if any, award is due must be determined by an explanation of the whole record and the facts therein disclosed.

It appears from the record that claimant was at the time of his injury engaged in the performance of his duties as a member of the Illinois National Guard, and the court therefore holds that whatever right to an award exists in his favor is by virtue of the provisions of the Military and Naval Code of Illinois and not under the terms of the Workmen’s Compensation Act. It further appears that enlisted men of the National Guard shall receive per day, etc. the sum of Four Dollars ($4.00) per day and under Section 10, Article 16, Chap. 129, Ill. Revised Statute, an enlisted man who may be disabled while on duty and lawfully performing the same so as to prevent his working at his profession, trade or other occupation from which he gains his living is entitled to draw one-half his active service pay for not to exceed thirty (30) days. The provisions for payment for the longer disability are not applicable, for it appears that while claimant was injured on August 3, 1933 and was immediately given hospital care, his pay as a soldier in training was to include August 12th. At the close of the period of field training in Rockford hospitalization was authorized for him at Fort Sheridan from which he was discharged on August 30, 1933 as “cured.” The records further show that transportation from Chicago to Fort Sheridan was authorized for him, but he chose to go immediately rather than wait for same, and was at that time informed that if he did so it would be at his own expense and that he would not be reimbursed for such railroad fare, to which he then agreed. From an examination of the entire record it appears that claimant is entitled to compensation from the time his pay ceased on August 12, 1933 to the end of his disability, i. e. August 30,1933, or a period of 18 days. Under the Military Code he would therefore be entitled to one-half active service pay or Two Dollars ($2.00) per day, which for the eighteen (18) days, would be Thirty Six Dollars ($36.00). An award it therefore hereby entered in favor of claimant in the sum of Thirty Six Dollars ($36.00).