text:
    (No. 3015
    Melvin Collins, By Mary Collins His Mother and Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    Frederick & Frederick, for claimant.

      George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This complaint was filed on October 21, 1936, and alleged that Melvin Collins, age twenty years, was an inmate of Lincoln State School and Colony, an institution under and in charge of the Department of Public Welfare of the State of Illinois; that on or about October 25, 1935, he was working at or with laundry and cleaning equipment under orders of the respondent, through its agents and servants. The complaint further avers that he was inexperienced in the use of machinery of its kind, and that it was dangerous machinery, and in obeying the orders of his superior, could not foresee said dangers, and was not warned or instructed by those under whose direction he was working; that in commanding claimant to work with or at said machinery and equipment, it became and was the duty of the respondent to instruct claimant in the use of said machinery and equipment and to warn him of the dangers thereof, but respondent failed and neglected its duty in this behalf, and the claimant, while in the exercise of due care and caution for his own safety caught his left arm in the machinery and was thrown violently in or upon said machinery and equipment, and his left arm was crushed and mutilated and divers bones in said arm were fractured and broken, causing permanent and lasting injuries, and that by reason of the injuries it became necessary to amputate the arm, to the damage of the claimant in the sum of $2,500.00.

The complaint avers notice to the respondent and that claimant has received nothing for his injury.

The Attorney General has made a motion to dismiss this case. For the purpose of considering this motion, we will assume that all allegations of fact are true. We have repeatedly held that such a statement of fact does not give rise to a legal claim against the State of Illinois. Claimant was confined in this institution, and in conducting an institution of this kind the State is engaged in a governmental function.

The records of this department, however, show that Melvin Collins was experienced in the use, operation and management of laundry or like machinery; that he had been instructed as to the operation and management of laundry machinery; that claimant had informed the officials at this institution that he had had six months training in the operation and management of the same type of laundry machinery as used at Lincoln State School and Colony while he was a charge of the Glenwood Manual Training School at Glenwood, Illinois. It also appears from the records that all hospital and doctor bills were paid by the State.

We have on numerous occasions held that the State is not legally or equitably liable to an inmate who receives an injury while confined in one of its institutions, and does not come under the provisions of the Workmen’s Compensation Act.

Hagelwood vs. State, 6 C. C. R. 259;
Fitzmaurice vs. State, 6 C. C. R. 247;
Heiss vs. State, 6 C. C. R. 267;
Derby vs. State, 7 C. C. R. 145;
Butler, et al. vs. State, 8 C. C. R. 102;
Rutledge, et al. vs. State, 8 C. C. R. 206;
Pelli, et al. vs. State, 8 C. C. R. 324;
Parks, et al. vs. State, 8 C. C. R. 535;
William R. Schaeffer, No. 1968.

The motion of the Attorney General to dismiss will, therefore, be sustained, and the claim disallowed.


source: Caselaw Access Project

author: Mr. Justice Linscott

license: Public Domain

text:
    (No. 2713
    Chester E. Coultas, Administrator of the Estate of Lucille Mildred Coultas, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    A. M. Fitzgerald, for claimant.

      George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant alleges that his intestate,, on the 11th day of August, 1934, was in an automobile driven by another, over U. S. Route No. 36, which road had been built and maintained by the State of Illinois; that about 11:30 p. m., approximately three hundred yards west of the point known as the “Wilson Corner,” the car in which the deceased was riding struck á large limb of a tree which had been blown across the highway by a storm which occurred a couple of hours before claimant’s intestate approached in the automobile, and was not seen by the driver of the automobile until the automobile was practically at the place where the limb of the tree had fallen upon the highway.

The usual averments of due care and caution for her own safety are contained in the complaint.

Plaintiff’s intestate, Lucille Mildred Coultas, died as the result of her injuries.

The complaint charges that the State had employed a watchman or a maintenance man located at Winchester, Illinois, whose duty it was to inspect and patrol the highways and to see that they remain in a safe condition:

Damages in the sum of $10,000.00 are claimed.

The Attorney General has made a motion to dismiss this claim on the ground that the State is not liable for the carelessness and negligence of its servants and agents.

Both this court and the Supreme Court of Illinois and other courts have held that in the construction and maintenance of its roads, the State acts in a governmental capacity and in the exercise of such governmental functions it does not become liable in actions of tort by reason of the malfeasance, misfeasance or negligence of its officers or agents in the absence of a statute creating such liability.

Morrissey vs. State, 2 C. C. R. 454;

Minear vs. State Board of Agriculture, 259 Ill. 549.

Many times, since the adoption of the opinion in the Morrissey case, this court has followed the doctrines therein announced. Therefore, the motion to dismiss will be sustained and cause dismissed.


text:
    (No. 3087
    Alfred W. Evans, Administrator of the Estate of William B. Evans, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

      Rehearing allowed February 13, 1941.

    Homer D. McLaren, for claimant.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

A rehearing was granted in this case, the case having-been formerly decided by a divided court.

Claimant’s intestate filed a complaint in this court seeking an award in compensation for injuries alleged to have been sustained in the course of his employment as a janitor-custodian in the office of the Attorney General.

The facts have been stipulated.

At the time of the injury claimant’s intestate had no children under sixteen years of age, and for more than one year preceding the date of the injury had been employed as a janitor-custodian in the Attorney General’s office at a wage of $112.50 per month. On October 16, 1936, while engaged in his usual work of cleaning- up the office quarters he reached over a chair to turn off an electric fan and in so doing he tripped on the chair and his left hand was thrust into the fan, breaking the bones of the first joint of the third finger, bruising the bones of the second and third fingers, tearing the ligaments of both fingers and lacerating them.

The Attorney General had immediate notice of the injury, and in the treatment of this injury claimant’s intestate incurred and paid medical and hospital bills in the total sum of $42.00. Claimant paid Dr. J. E. Reiseh the sum of $37.00 and paid St. John’s Hospital the sum of $5.00. The respondent did not pay any of either bill.

The stipulation further stated that if Dr. J. E. Reiseh, the attending physician and surgeon, was called as a witness he would testify that as a result of said injuries there is a ten per cent limitation of flexion in the second joint of the second finger of the left hand and a twenty-five per cent limitation of flexion in the first joint of the third finger of said hand, and a tendon shortening in the palmer surface of the first joint of the third finger of said hand. The stipulation went further and stated that claimant’s intestate had suffered a fifty per cent permanent disability or loss of use of both the second and third fingers of the left hand. No claim was made for temporary incapacity. Apparently he lost no time from work and was paid his regular salary after the injury.

The Attorney General’s office quarters, where claimant worked and where he was injured, are located in the Supreme Court Building, Springfield, Illinois. These office quarters occupy the east portion of the ground floor and basement of the building. There is an electrically powered elevator in the building for the general use of all who have business in the building, but it was not operated by claimant’s intestate. There is another electrically powered elevator located in the east end of the building in the quarters of the Attorney General, which is operated by anyone having occasion to use that' elevator, and the office quarters were equipped with the usual fans for use during the warm months, and electric water coolers.

Claimant’s intestate operated the last mentioned elevator in transporting supplies from the basement to the Attorney General’s office, and otherwise in the performance of his duties, and upon consideration of all of the facts in the record we are of the opinion that at the time of the accident in question claimant’s intestate and the respondent were both operating under and bound by the provisions of the Workmen’s Compensation Act.

We therefore hold that claimant’s intestate received an injury that arose out of and in the course of his employment, and make an award to the claimant, Alfred W. Evans, Administrator of the Estate of William B. Evans, deceased, as follows:

For the specific loss of 50% use of second finger..................... $227.15
For the specific loss of 50% use of third finger...................... 162.25
For medical and hospital bills..................................... 42.00,

or a total sum of $431.40.

This award, being subject to the provisions of an Act entitled “An Act making an Appropriation to Pay Compensation Claims of State Employees and providing for the Method of Payment Thereof” (Illinois Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Fund in the manner provided by the foregoing Acts.


text:
    (No. 3043
    H. D. Hileman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    George E. Martin, for claimant.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant filed his complaint herein on January 4, 1937, and alleges therein in substance that for the last half of 1925 and for the years 1926 to 1936, inclusive, he paid a motor veMcle license tax on Ms Buick automoMle in excess of1 the amount which he was really required to pay; that in each of his applications for motor veMcle license he set forth that the horsepower of said motor vehicle was 30, whereas in fact it was 23.4; that by reason of his error in that behalf he made an over-payment of $4.00 per year, orí a total over-payment of $46.00 for the period above set forth, and therefore asks for a refund of that amount.

The Attorney General has moved to dismiss the case upon the following grounds:

1. That the registration fees were correctly assessed on the basis of the applications filed by claimant and were paid voluntarily, and therefore claimant is not entitled to a refund of any part thereof.

2. That the claim for the years 1925 to 1936, inclusive, is barred by the Statute of Limitations.

The rule is well established in this State that where an excessive tax or fee is paid voluntarily with a full knowledge of all the facts, the same cannot be recovered. It is equally well established that where such tax is paid under a mistake of fact, it is not considered as having been paid voluntarily; also that where such tax is paid under a mistake of law, it may not be recovered. (Alton Light & Traction Co. vs. Rose, 117 Ill. App. 83; Yates vs. Royal Insurance Co., 200 Ill. 202; Board of Education vs. Toennigs, 297 Ill. 469; School of Domestic Arts vs. Harding, 331 Ill. 330; Richardson Lubricating Co. vs. Kinney, 337 Ill. 122; Hettler Lumber Co. vs. Cook County, 336 Ill. 645; Cooper, Kanaley 3 Co. vs. Gill, 363 Ill. 418; American Can Co. vs. Gill, 364 Ill. 254.)

Under the facts set forth in the complaint, it appears that the fee was correctly computed by the Secretary of State on the basis of the application made by claimant, and, that the only error or mistake was the error of the claimant in setting forth the correct horsepower of his motor vehicle.

TMs court has held in numerous cases that where an illegal or excessive tax is imposed by reason of the negligence or inadvertence of the taxpayer and-thereafter paid by Mm, such payment is not made under a mistake of fact and cannot be recovered. (Western Dairy Co. vs. State, 9 C. C. R. 498; James B. Emerick vs. State, 9 C. C. R. 510; Stotlar-Herrin Lumber Co. vs. State, 9 C. C. R. 517; Fried 3 Bell Paper Co. vs. State, 9 C. C. R. 531; Monarch Fire-Insurance Co. vs. State, 9 C. C. R. 538; Oppenheimer Casing Co. vs. State, 10 C. C. R. 9; Kansas City Fire & Marine Insurance Co. vs. State, 10 C. C. R. 443; St. Louis Fire & Marine Insurance Co. vs. State, No. 3413, decided January Term, 1940.)

For the reason that none of the payments in question were made under a mistake of fact within the legal meaning of those words, we have no authority to allow an award, and it therefore becomes unnecessary to consider the second point raised by the Attorney General. For the reasons above stated the motion of the Attorney General to dismiss must be allowed.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 2914
    A. R. Horton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    Hodges & Tragethon, for claimant.
    George F. Barrett, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court :

Claimant seeks damages in the sum of Sixty Dollars and Twenty-five Cents ($60.25), and charges that on October 15, 1935, about 11:00 p. m., he was driving his Ford truck south on Fifth Street, in the City of Springfield, and at the intersection of Fifth Street and Capitol Avenue, traffic lights regulated the traffic. Claimant ayers that he had the right-of-way, and while in the exercise of due care and caution for his own safety, a truck driven by Norman R. Stanton, a member of the National Guard, carelessly and negligently struck him. The negligence averred is that of running the traffic light.

This again raises the question of the liability of the State for the negligent acts of its agents.

This court, the Supreme Court of the United States and the Supreme Court of Illinois have repeatedly held that the State is not liable for the injuries complained of by reason of the malfeasance, misfeasance or negligence of its officers or agents in the exercise of its governmental functions.

Petersen vs. State, 8 C. C. R. 9;
Shumway vs. State, 8 C. C. R. 43;
Sullivan vs. State, 8 C. C. R. 140;
Childress vs. State, 8 C. C. R. 223.

The motion to dismiss filed by the Attorney General will, therefore, be sustained, and the award denied.


text:
    (No. 3261
    Harry J. Kopp, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    Claimant, pro se.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The complaint herein sets forth that the claimant in making application for a 1937 license for his Ford truck incorrectly stated the weight thereof, and that by reason of such error, he was required to and did pay" a license fee of $24.00 whereas the proper fee based upon the correct weight of such truck was but $12.00, and he therefore asks for a refund of the amount so overpaid, to wit, the sum of Twelve Dollars ($12.00).

The Attorney General has moved to dismiss the case for the reason that the fee paid by claimant was correctly assessed by the Secretary of State upon the basis of the application filed by claimant, and was paid by the claimant voluntarily without protest, and consequently he is not entitled to refund of any part thereof.

It is well settled that where a tax or license fee is paid voluntarily, without duress or compulsion, and not under protest, the same cannot be recovered. Where, however, such tax or license fee is paid under a mistake of fact, it is considered to have been paid involuntarily and may be recovered. However, where the tax is correctly computed by the taxing officer on the basis of an application or return filed by the applicant, and the over payment is the result of inadvertence or mistake on the part of the taxpayer himself, and not on the part of the taxing officer, the payment is not made under a mistake of fact within the legal meaning of those words, and cannot be recovered. (Western Dairy Co. vs. State, 9 C. C. R. 498; James B. Emerick vs. State, 9 C. C. R. 510; Stotlar-Herrin Lumber Company vs. State, 9 C. C. R. 517; Fried-Bell Paper Co. vs. State, 9 C. C. R. 531; Monarch Fire Insurance Co. vs. State, 9 C. C. R. 538; Oppenheimer Casing Co. vs. State, 10 C. C. R. 9.)

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

Motion to dismiss allowed. Case dismissed.


text:
    (No. 3444
    Litchfield and Madison Railway Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    Claimant, pro se.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant asks for an award in the amount of Two Dollars and Twenty Cents ($2.20) for demurrage on a car of stone consigned to the Division of Highways at Mt. Olive, Illinois. The car in question was spotted on, Saturday night, June 3d, 1939, at 10:05 P. M. The free .unloading’ period expired Tuesday night, June 6, 1939, but the Division was unable to complete the unloading of the same until the afternoon of June 7th, whereby the claimant became entitled to one day’s demurrage.

The claim was presented for payment on October 6, 1939, and was approved by Mr. Walter Donaldson, Transportation Expert of the Division of Highways, but payment thereof could not be made on account of the fact that the appropriation out of which the same was properly payable lapsed on September 30, 1939.

We have held in numerous cases that where services have been properly rendered to the State, and a bill therefor has been submitted within a reasonable time, but the same was not approved and vouchered for payment before the lapse of the appropriation from which it is payable, without any fault or neglect on the part of the claimant, an award for the reasonable and customary value of the services will be made, where at the time the expenses were incurred there were sufficient funds remaining unexpended in the appropriation to pay for the same. (Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165; Indian Motorcycle Co. vs. State, 9 C. C. R. 526; Wabash Telephone Co. vs. State, 10 C. C. R. 211.)

This claim comes within the requirements above set forth, and an award is therefore entered in favor of the claimant for the sum of Two Dollars and Twenty Cents ($2.20). ■


author: Me. Justice Linscott

text:
    (No. 2865
    E. Lloyd, Doing Business as Merchants Freight Lines, for use of James O’Donnell Teaming Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    Sternberg & Sternberg, for claimant.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

The complaint herein alleges in substance that during the months of August and September, 1935, the claimant, James 0 ’Donnell Teaming Company, as a sub-contractor of E. Lloyd doing business as Merchants Freight Lines, did certain hauling for the Illinois Emergency Belief Commission, for which there became due and owing to said James O’Donnell Teaming Company the sum of $76.54; that the said E. Lloyd has left the jurisdiction without paying claimant; that there is enough money on hand at the Illinois Emergency Belief Commission to the credit of E. Lloyd doing business as Merchants Freight Lines, to pay for the services of the claimant, but that the Illinois Emergency Belief Commission has refused to pay said claim without the approval of a proper court; that an attachment suit was commenced in the Municipal Court of Chicago and dismissed, and that claimant’s only remedy is in this court.

The Attorney General has entered a motion to dismiss the claim for the following reasons:

1. The court has no jurisdiction of such claim.
2. That claimant seeks in effect to make the respondent a garnishee.
3. That the claimant has a complete and adequate remedy at law.

It is not clear from the complaint why the garnishment proceeding in the Municipal Court was dismissed, nor is it clear from the complaint whether the claimant seeks an order of this court directing the Illinois Emergency Belief Commission to pay the amount alleged to be due the beneficial claimant, or whether said claimant seeks an award by this court to be paid by an appropriation made by the Legislature in the usual course of procedure.

The services rendered by the beneficial claimant were not pursuant to any contract between it and the Illinois Emergency Belief Commission, but were rendered by said claimant as a sub-contractor for Lloyd, who had a contract with the Illinois Emergency Belief Commission, and the beneficial claimant herein seeks to subject the funds in the hands of the Illinois Emergency Belief Commission to the payment of its claim against Lloyd. It follows therefore, that regardless of the form of this proceeding, it is in effect an attempt to hold the Illinois Emergency Belief Commission as garnishee.

The general rule in cases of this kind is set forth in 28 Corpus Juris, page 64, section 80, as follows:

“In. the absence of express provision to the contrary, no sovereign government will be deemed to be included in the provisions of statutes prescribing who may be made garnishee. Accordingly, as a general rule, garnishee process can reach neither the Federal Government, nor a State, nor a territory. This exemption is sustained also by considerations of public policy.”

In the case of Home Owners Loam, Corporation vs. Hardie and Caudle, 100 S. W. (2d) 238, the Supreme Court of Tennessee held that the Home Owners Loan Corporation was an instrumentality of the federal government and therefore not subject to garnishment. There can be no question but what the Illinois Emergency Belief Commission is an instrumentality of the State Government and therefore exempt from garnishment. If an instrumentality of the State Government such as the Illinois Emergency Belief Commission is not subject to garnishment directly, it cannot be subjected to such proceedings indirectly, as is sought to be done in this case.

This court has only such jurisdiction as is given to it by the Legislature, and there is nothing in the Court of Claims Act which authorizes this court to grant the relief sought in this proceeding.

The remedy of the claimant is against the person with whom it contracted, to wit, E. Lloyd, doing business as Merchants Freight Lines.

The motion of the Attorney General must therefore be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 2901
    Gertrude Lohn, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    Claimant, pro se.
    George F. Barrett, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant appears for herself in this suit and alleges damages in the sum of $2,000.00. She basis her claim on the fact that on September 16, 1935, she was standing in the parkway or safety zone located at the northwest comer of Irving Park Boulevard and Narragansett Avenue in the City of Chicago when an automobile owned by the State and carelessly and negligently driven by Homer D. Catt struck her and severely injured her. She avers that Catt was an employee of the State Highway Department at the time and in parenthesis avers “and so acting at said time and place.”

The Attorney General has made a motion to dismiss on the ground that the State is not liable for the careless and negligent acts of its employees, and has ignored the insufficiency of the pleading, but stands on the proposition that the State is not liable for injuries complained of by reason of the malfeasance, misfeasance or negligence of its officers or agents in the exercise of its governmental functions, as this court held in the case of Childress vs. State, 8 C. C. R. 223, and Crabtree vs. State, 7 C. C. R. 207.

For these reasons the motion to dismiss must be sustained and an award denied.


text:
    (No. 3049
    Edgar G. Merwin and Carrie Merwin, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    Frederick L. Habbegger, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This case is before the court on a motion to dismiss the complaint which consisted of two counts.

The first count alleges that Edgar G~. Merwin was the owner of a Packard automobile, which he was driving in a .northerly direction over State Highway No. 3, also known as United States Highway No. 67, between Jerseyville and Carrollton, Illinois, and that his wife, Carrie Merwin, was riding as a passenger with him; that they were in the exercise of due care and caution for their own safety and that of the property of the claimant, Edgar G-. Merwin; that at the time the State owned and operated an automobile, and was operating the same by its servants; that as the claimants were traveling on the highway, without any warning, the servant of the State backed his car rapidly upon the highway at such time and in such a manner that the claimants could not avoid running into him, and both claimants suffered severe injuries.

Count I alleged damages in the sum of $5,000.00 and Count II alleged damages in the sum of $1,000.00.

A motion to dismiss was made by the Attorney G-eneral. We will consider that motion.

The facts set forth in the complaint are sufficient to show negligence on behalf of the servant of the State, a resulting injury and damages, and to show that the agent of the State was an employee of the Highway Department and that the State was engaged in a work that comes fairly within its governmental powers.

Many times this court has held that the State, in the construction and maintenance of its hard-surfaced highways, is engaged in a governmental function.

Chumbler vs. State, 6 C. C. R. 136;
Highland vs. State, 6 C. C. R. 384;
Bucholz vs. State, 7 C. C. R. 241;
Wilson vs. State, 8 C. C. R. 72;
Wetherholt vs. State, 8 C. C. R. 100.

Also that in the exercise of such governmental functions it is not liable for the negligence of its servants or agents, in the absence of a statute making it so liable.

Braun vs. State, 6 C. C. R. 104;
Chumbler vs. State, 6 C. C. R. 138;
Bucholz vs. State, 7 C. C. R. 241;
Baumgart vs. State, 8 C. C. R. 220;
Childress vs. State, 8 C. C. R. 223;
Ryan vs. State, 8 C. C. R. 361;
Kramer vs. State, 8 C. C. R. 31;
Johnson vs. State, 8 C. C. R. 67;
Wilson vs. State 8 C. C. R. 72.

Such decisions of this court are in harmony with repeated decisions of our Supreme Court.

Hollenbeck vs. County of Winnebago, 95 Ill. 148;
City of Chicago vs. Williams, 182 Ill. 135;

Minear vs. State Board of Agriculture, 259 Ill. 549;

Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.

We must, therefore, sustain the motion to dismiss made by the Attorney General and deny an award.


text:
    (No. 2797
    Hugo McCord, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    Claimant, pro se.
    George F. Barrett, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant has filed a sworn statement of his claim. It does not conform to the strict rule of pleading but it is sufficient to advise the respondent of the facts.

It appears from the statement that he was driving an automobile on December 26, 1935, on State Boute 1 north of Danville, Illinois, when he struck a snow plow belonging to the State, which was not on the proper side of the road and which was being towed. The statement sets forth that because claimant was a minister he was able to get repairs made to his automobile for less than what the State would have to pay because members of his congregation did the work for less money. He submitted a Bill of Particulars showing damages in the sum of $37.42 which would have been the regular cost, but which actually cost him $24.91. Claimant’s attitude in this regard is commendable, but owing to the fact that the State is not liable for the negligent acts of its agents or its servants while in the performance of a governmental function, the State is not liable. This has been the holding of this court in many instances, and is also the doctrine established by the Supreme Court of United States and the Supreme Court of Illinois.

The motion of the Attorney General to dismiss must, therefore, be sustained, and award denied.


text:
    (No. 3228
    Theodore H. Reuter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    Claimant,, pro se.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court r

Claimant seeks a refund of Twelve Dollars ($12.00), which amount he claims he overpaid for automobile registration fees for the years 1934, 1935 and 1936; — in each of which years he paid the sum of Ten Dollars and Fifty Cents ($10.50) instead of Six Dollars and Fifty Cents ($6.50) which he was legally required to pay.

The Attorney General has moved to dismiss the claim for the reason that the complaint does not allege that the excess fees were paid under protest or under duress or compulsion, or that there is a statute authorizing such refund.

Claimant apparently bases his right to recover upon the contention that the excess payments so made by him as aforesaid were made under a mistake of fact.

It is generally recognized that where an illegal or excessive tax is paid voluntarily, with a full knowledge of all the facts, it cannot be recovered. It is equally well recognized that where such tax is paid under a mistake of fact, it may be recovered. However this court has held in numerous eases that where a license fee is correctly assessed by the Secretary of State on the basis of the application filed by the owner of the automobile and he is thereby required to pay a fee in excess of what he legally should have paid, the payment can not be considered as having been made under a mistake of fact within the legal meaning of those words, and consequently he is not entitled to a refund of the amount so paid. (James B. Emerick vs. State, 9 C. C. R. 510; Western Dairy Co. vs. State, 9 C. C. R. 498; Stotlar-Herrin Lumber Co. vs. State, 9 C. C. R. 517; Fried & Bell Paper Co. vs. State, 9 C. C. R. 531; Oppenheimer Casing Co. vs. State, 10 C. C. R. 9; Kansas City Fire & Marine Insurance Co. vs. State, 10 C. C. R. 443.)

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

Motion to dismiss allowed. Case dismissed.


text:
    (No. 2767
    Harriet S. Taylor and Frank M. Taylor, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    Charles R. Taylor, for claimants.
    George F. Barrett, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

In this complaint it is charged that Harriet S. Taylor and Prank M. Taylor were the owners of eight acres of wheat and five rows of corn forty-eight rods long which were destroyed by the employees of the Highway Department of the State of Illinois in the burning of grass and weeds along the highway known as U. ¡3. 36; that the wheat loss was $147.20 and the corn loss was $9.00.

The Attorney General made a motion to dismiss because the State was engaged in a governmental function and is, therefore, not liable for the negligence of its employees.

We must assume that the facts stated in the complaint are true. The motion raises only an issue of law.

The court has uniformly held that the maintenance by the State of its State bond issue routes is a governmental function, and has also held in numerous cases that the State is not liable for the negligence of its servants or agents in the performance of governmental functions.

Hinchcliff vs. State, 2 C. C. R. 159;
Derby vs. State, 7 C. C. R. 145;
Hollenback Admrx. vs. Winnebago County, 95 Ill. 148;
Minear vs. State Board of Agr., 259 Ill. 549; 25 R. C. L., p. 407, Sec. 43;
Loges vs. State, No. 1946; Opinion filed Feb. 7, 1934.

It is a rule of almost universal application that no government is liable for the negligence or misfeasance of its officers and agents, in the absence of a statute making it liable.

Gibbons vs. U. S., 8 Wal. 269;
U. S. vs. Kirkpatrick, 9 Wheaton 720; .
Jorgensen vs. State, 2 C. C. R. 134;
Reliable Coal Mining Co. vs. State, 7 C. C. R. 56;
Crawford vs. State, No. 2360, Opinion filed Dec. 11, 1934.

The General Assembly has never enacted a law making the State liable for damages caused by the negligent construction or maintenance of a public road, and this court has no power to make an award for such damages, in the absence of such a statute.

Chumbler vs. State, 6 C. C. R. 138;
Bucholz vs. State, 7 C. C. R. 243.

Where a poor farm was owned by a county and the servant of the county was burning brush thereon and through his negligence a fire spread to an adjoining farm and caused damages thereto, the county was held not liable.

Symonds vs. Clay County, 71 Ill. 355.

The motion of the Attorney General will, therefore, be sustained and the cause dismissed.


text:
    (No. 2845
    Ellsworth H. Valentine, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    Wirt Herrick, for claimant.
    George F. Baerett, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This case comes before us on a motion to dismiss the complaint.

The complaint alleges that the claimant, while in the exercise of due care and cantion for his own safety, was engaged on his land in repairing a floodgate across Camp Creek in Monticello Township, Piatt County, Illinois, where the track of the Hlinois Central Railroad crosses said Camp Creek, and while he was so engaged two employees of the Department of Highways of the State of Illinois, were engaged in the execution of orders given them by the Department in loosening gravel for use on the highways of the State of Illinois, from a pit located on the opposite side of and directly across said railroad track and embankment which divided claimant’s land where claimant was working, and that without any notice to the claimant, the agents of the State, on the opposite side of the railroad embankment and in close proximity to where the claimant was engaged, were using dynamite or other high explosives at the gravel pit; that the agents of the State knew or should have known the force of the explosives that they were using, and that it would cause missiles of frozen earth and gravel to be thrown with great force and violence over the embankment where the tracks of the railroad were and onto the property of the claimant, and that they knew or should have known that such missiles would be of such a nature and would be thrown by said explosives in such a way as to endanger the life and limb of claimant or anyone within the range of said missiles; that without warning of any kind the agents of the State carelessly and negligently exploded a high explosive and that the claimant was injured thereby. Claimant asks damages in the sum of Nine Hundred Eighty-six Dollars and Eighty-one Cents ($986.81). An itemized statement of the damages was filed . with the complaint.

The motion to dismiss admits that the State in the preparation of gravel to be used upon its highway was engaged in a governmental capacity, and, therefore, the State was not liable.

The Supreme Court of the United States and the Supreme Court of Illinois, and this court have repeatedly held that when a State is engaged in the exercise of a governmental function it is not liable for damages caused by the negligence of its servants or agents employed to do the same.

Counsel for claimant argues that the negligence in this case amounts to wilfullness and wantonness. The general rule above announced has been held many times to be the law, and this court has held that there are no exceptions to it.

The motion of the Attorney General will, therefore, be sustained.


text:
    (No. 3250
    Viking Automatic Sprinkler Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1941.

    Claimant, pro se.
    George F. Barrett, Attorney General; Murray P. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant paid Thirty-five Dollars ($35.00) for a motor truck license for the year 1938. The license was issued December 22, 1937 and was not used any time during the year 1938, and claimant has asked for the refund of the license fee so paid by Mm, and has indicated that the license plates issued to him will be returned.

This court has held in numerous cases that where a license fee is paid under a mistake of fact, it may be recovered. However, in this case payment was not made under circumstances constituting a mistake of fact, nor was it made under protest, or under fraud or compulsion. Payment was made voluntarily with a full knowledge of the facts, and the mere fact that the claimant failed to take advantage of the license issued to it does not entitle it to a refund of the amount paid.

Application for refund under similar circumstances has been denied by tMs court in the following cases: Phillips vs. State, 10 C. C. R. 53; Eaid vs. State, 10 C. C. R. 244; and Frank J. Tierman vs. State, No. 3236, decided at the present term of this court.

Motion of the Attorney General must therefore be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 3056
    Illinois Lumber Company, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1941.

    Buckley & Buckley, for claimant.
    George P. Barrett Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The complaint herein alleges in substance that in making its annual reports to the Secretary of State for the year 1933 and 1934, it erroneously reported a paid-in surplus of $204,-339.00, whereas in fact the surplus of the claimant as shown by such reports was an “earned surplus” and was therefore not properly taxable under the laws of this State; that by reason thereof, the claimant paid a franchise tax in the amount of $102.17 for each of such years 1933 and 1934, in excess of the amount it was legally required to pay, and claimant therefore asks for a refund of the excess tax so paid by it as aforesaid, together with interest from the date of payment at the rate of 5% per annum.

The Attorney General has filed a motion to dismiss the claim for the reason that the tax was correctly assessed on the basis of the annual reports filed by the claimant, and the payment in question was not made under protest.

A similar question was presented to this court in the case of Western Dairy Co. vs. State, 9 C. C. R. 498. In considering the question there involved, we said, page 499:

“The question here involved is whether a corporation which has paid an excessive franchise tax, as the result of its own mistake or error, is entitled to recover the amount of the excess so paid.
“The rule is well established in this State that where an illegal of excessive tax is paid voluntarily, with full knowledge of all the facts, the same cannot be recovered. It is equally well established that where such tax is paid under a mistake of fact, it is not considered as having been paid voluntarily; also that where such tax is paid under a mistake of law, it may not be recovered.
* * * * * * * * *
“The difficulty arises not with the principles of law but with the application of such principles to the particular case.
“In this case the facts with reference to the amount of its stated capital and paid-in surplus were peculiarly within the knowledge of the claimant; there was no mistake on the part of the Secretary of State who assessed the tax in accordance with the annual report prepared and filed by the claimant; the only error was that of the claimant. No objection was made to the assessment, and no request for a hearing thereon was made in accordance with the provisions of Section 143 of the Business Corporation Act.
“There are numerous authorities that where an illegal or excessive tax is imposed by reason of the negligence or inadvertence of the taxpayer, and thereafter paid by him, such payment is not made under a mistake of fact, and cannot be recovered.”

To the same effect, see Stotlar-Herrin Lumber Co. vs. State, 9 C. C. R. 517; Fried & Bell Paper Co. vs. State, 9 C. C. R. 531; Monarch Fire Insurance Co. vs. State, 9 C. C. R. 538; Kansas City Fire & Marine Insurance Co. vs. State, No. 3413, decided February 14, 1940.

Under the law as set forth in the cases cited, we have no authority to allow an award, and the motion of the Attorney General will therefore be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 3111
    Joseph Liss, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1941.

    Claimant, pro se.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant asks for a refund in the amount of Four Dollars ($4.00) which he claims to have overpaid to the Secretary of State as an automobile license fee for 1936.

The Attorney General has moved to dismiss the claim for the reason that the complaint does not allege that the excess payment was made under protest, involuntarily or under duress or compulsion.

It is well settled that where a tax or license fee is paid voluntarily, without duress or compulsion, and not under protest, the same cannot be recovered. Where, however, such tax or license fee is paid under a mistake of fact, it is considered to have been paid involuntarily and may be recovered. However, where the tax is correctly computed by the taxing officer on the basis of an application or return filed by the applicant and the over payment is the result of inadvertence or mistake on the part of the taxpayer himself, and not on the part of the computing officer, the payment is not made under a mistake of fact within the legal meaning of those words and cannot be recovered. (Western Dairy Co. vs. State, 9 C. C. R. 498; James B. Emerick vs. State, 9 C. C. R. 510; Stotlar-Herrin Lumber Company vs. State, 9 C. C. R. 517; Fried Bell Paper Co. vs. State, 9 C. C. R. 531; Monarch Fire Insurance Co. vs. State, 9 C. C. R. 538; Oppenheimer Casing Co. vs. State, 10 C. C. R. 9.)

The complaint does not set forth a state of facts under which we have any authority to allow the award, and the motion of the Attorney General to dismiss must be susthined.

Motion to dismiss allowed. C.ase dismissed.


text:
    (No. 2923
    Mona Matheson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1941.

    George 0. Both, for claimant.
    George F. Barrett, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant in her complaint alleges that she is the owner of a 1928 Buick coach; that during the years 1932, 1933 and 1934, in making application to the Secretary of State for the issuance of license plates for such automobile, through inadvertence she made an over-payment of Four Dollars ($4.00) for each of such years;— and she therefore asks for a refund of such over-payment, to wit, Twelve Dollars ($12.00).

• It is a rule of general application that where taxes or license fees are paid voluntarily, with a knowledge of the facts, and not under protest or compulsion, the same cannot be recovered back. It is also well settled that where license fees are paid under a mistake of fact, such payment is considered as not having been voluntarily made and therefore may be recovered.

However, where the tax is correctly computed by the taxing officer on the basis of an application or return filed by the applicant, and the over payment is the result of inadvertence or mistake on the part of the taxpayer himself, and not on the part of the taxing officer, the payment is not made under a mistake of fact within the legal meaning of those words and cannot be recovered. (Western Dairy Co. vs. State, 9 C. C. R. 498;. James B. Emerick vs. State, 9 C. C. R. 510; Stotlar-Herrin Lumber Co. vs. State, 9 C. C. R. 517; Fried Bell Paper Co. vs. State, 9 C. C. R. 531; Monarch Fire Insurance Co. vs. State, 9 C. C. R. 538; Oppenheimer Casing Co. vs. State, 10 C. C. R. 9.)

Upon the facts set forth in the complaint, we have no authority to allow an award, and the claim must therefore be dismissed.

Award denied. Case dismissed.


text:
    (No. 3522
    Merchants Fire Insurance Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1941.

    Claimant, pro se.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

On February 23, 1940, pursuant to the provisions of Section 410 of the Illinois Insurance Code of 1937, claimant filed with the Department of Insurance of the State of Ulinois, its insurance privilege tax statement showing not taxable premiums of $32,387.82 for direct business transacted during the calendar year 1939.

The tax was computed in accordance with the statement so filed, claimant was duly notified of the amount thereof, and thereafter, to wit, on May 20, 1940, it paid the sum of $444.03 for premium taxes.

It subsequently developed that in presenting its statement as aforesaid, claimant had failed to include therein and take credit for the sum of $105.45 paid to the City of Chicago, and the sum of $15.81 paid to the City of East St. Louis, during the calendar year 1939 as a tax on premiums for the benefit of the organized fire departments of said cities.

Under the provisions of the Insurance Code, the amounts paid to the City of Chicago and to the City of East St. Louis for fire department taxes as above set forth, could have been deducted in- computing the annual privilege tax, and claimant therefore asks for a refund in the amount of $166.26 to cover the amount which it should have deducted in its privilege tax statement as aforesaid.

The Attorney General has moved to dismiss the claim for the reason that the complaint does not set forth a claim which the State of Illinois as a sovereign commonwealth should discharge and pay.

It is a rule of general application that where a tax is paid voluntarily and with a full knowledge of the facts, and not under protest, compulsion or duress, it may not be recovered back. It is also a rule of general application that where the tax is paid under a mistake of fact, it is not considered to have been paid voluntarily. It has also been held in numerous cases that where an illegal or excessive tax is imposed by reason of the negligence or inadvertence of the taxpayer, and the same is thereafter paid by him, such payment is not made under a mistake of fact and cannot be recovered. (Monarch Fire Insurance Co. vs. State, 9 C. C. R. 538; Kansas City Fire and Marine Insurance Co. vs. State, 10 C. C. R. 443; St. Louis Fire and Marine Insurance Co. vs. State, No. 3413, decided February 14, 1940; Western Dairy Co. vs. State, 9 C. C. R. 498; Fried-Bell Paper Co. vs. State, 9 C. C. R. 531; Stotlar-Herrin Lumber Co. vs. State, 9 C. C. R. 517.)

Under the law as laid down in the cases cited, we have no authority to allow an award and the motion of the Attorney General must therefore be sustained.

Motion to dismiss allowed. Case dismissed.


author: Mr. Chief Justice Hollerich

text:
    (No. 3367
    Louis Neltnor, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1941.

    Joseph Sam Perry, for claimant.
    George F. Barrett, Attorney General; Maurice J. Walsh, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Prior to and on the 1st day of April, A. D. 1938 the claimant was employed by the Division of Highways of the respondent as a laborer. On the last last mentioned date, while engaged in removing loose sod along Wilson Avenue, about four miles east of Batavia in Kane County, he twisted his leg and thereby sustained a dislocation of the left kneecap. He was immediately taken to the office of Dr. Gr. A. McGruinness in West Chicago for treatment. He returned to his work on April 5th, and Avorked that day and the next, but was off Avork from April 7th to April 11, inclusive. On April 12th he returned to his work and thereafter continued to work on those days on which his services were required, although he remained under the care of Dr. McGruinness until July 10th. Thereafter he continued with his work, but complained of pain in his leg, and on August 18th he was sent by the respondent to Dr. H. B. Thomas, Professor of Orthopedics at the University of Illinois Medical College, under whose direction he received physiotherapy treatments until December 2nd.

On March 24, 1939 claimant again complained of pain in his leg, and was returned by the respondent to Dr. Thomas who provided physiotherapy treatments until May 23d. During all of the time subsequent to August 18, 1938, claimant continued in the employment of the respondent and reported for treatment on the days on which he was not required' to work.

On March 30, 1939 he filed his claim in this court asking for an award for partial permanent loss of use of his left leg. During June, 1939 claimant again complained of pain in his leg, and on June 21, 1939 the Division of Highways of the respondent offered him an operation at the expense of the respondent, same to be performed by Dr. Thomas, for the purpose of exploring the knee and determining whether or not the claimant had a damaged cartilage in his knee. .

If damage to the cartilage was disclosed, the offer included treatment therefor, confinement in St. Luke’s Hospital in Chicago, and payment of compensation during the consequent period of temporary total disability; — which offer was refused by the claimant.

Dr. George A. McGuinness who testified on behalf of the claimant stated that when he examined claimant on October 18, 1939, claimant had a certain limitation of flexion in his left knee, probably ten to fifteen or twenty per cent, and that such condition was permanent. He also stated that there was a definite thickening around the left patella, that the lateral ligaments are definitely stretched, that on motion claimant does have pain, and further stated, without' objection, that, claimant would have a loss of approximately twenty per cent (20%) of the use of his leg.

Dr. Thomas examined the claimant on September 30,. 1940 and found a heaviness or thickness in the tissues around the patella, and some atrophy of the muscles above the left knee on the left side, as the ° only objective symptoms. At that time the left knee at a point four inches above the upper borders of the patella was three-quarters of an inch smaller than the right knee at the same point. Dr. Thomas found that claimant had normal movement in both knees and stated,, without objection, that in his opinion there was ten per cent (10%) disability of the knee.

From a consideration of the record before us, we find that on April 1,1938, the claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State; that on said date claimant sustained accidental injuries which arose out of and in the course of his employment; that notice of the accident was given to said respondent and claim for compensation on account thereof was'made.within the time required by the provisions of such Act; that the annual earnings of the claimant during the year preceding the injury were Twelve Hundred Twenty-two Dollars ($1,222.00), and his average weekly wage was Twenty-three Dollars and Fifty Cents ($23.50); that claimant at the time of his injury had one child under the age of sixteen (16) years; that all necessary first aid, medical, surgical and hospital services were provided by the respondent; that the claimant makes no claim for any temporary disability; that claimant has sustained the permanent loss of ten per cent (10%) of the use of his left leg.

We further find that claimant is entitled to have and receive from the respondent the sum of Twelve Dollars and Ninety-three Cents ($12.93) per week for nineteen (19) weeks for the permanent loss of ten per cent (10%) of the use of his left leg, in accordance with the provisions of paragraph E-15 of Section Eight (8) of the "Compensation Act, to wit, the sum of Two Hundred Forty-five Dollars and Sixty-seven Cents ($245.67).

We further find that all of the compensation due to ■claimant as aforesaid has accrued at this time.

Award is therefore entered in favor of the claimant, Louis Neltnor, for the sum of Two Hundred Forty-five Dollars and Sixty-seven Cents ($245.67).

This award, being subject to the provisions of an Act entitled “An Act making an Appropriation to Pay Compensation Claims of State Employees and providing for the Method of Payment Thereof” (Illinois Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of"the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.


text:
    (No. 2932
    Valeria Sadowski, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1941.

    M. A. Rothstein and Merwin M. Hart, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent."
   Mr. Justice Linscott

delivered the opinion of the court:

The amended complaint herein alleges in substance that on June 6, 1936, the Illinois Liquor Control Commission issued to the claimant a retailer’s license for the sale of alcoholic liquor for the premises located at 1053 North Rockwell Street, Chicago, Illinois, which license covered the period from the date thereof to June 30, 1937; that the claimant paid the State of Illinois therefor the sum of $58.33; that at the time she obtained said retailer’s license she had a local liquor license from the City of Chicago which expired June 30, 1936; that under Article 3, Section 13, of the Illinois Liquor Control Law, the Liquor Control Commission had no right to issue a State liquor license to the claimant beyond the period for which she had secured a local liquor license; that therefore the above described State liquor license was void as of June 30th, 1936; that by reason of her ill health claimant was forced to discontinue her business, was unable to use her said State liquor license, and sold her tavern to one Jacob Niemotka who had applied for and received a license for the same premises; wherefore claimant requests a refund in the sum of $50.00 for the unexpired period of said license, to wit, from July 1st, 1936 to June 30, 1937.

The Attorney General has entered a motion to dismiss the case.

Claimant contends that the State Commission had no authority to issue a license for the period longer than that covered by her local liquor license which expired June 30th, 1936, and that therefore the license issued to her by the Liquor Control Commission was void as of June 30, 1936. We cannot agree with the contention of the claimant in this behalf, but even if she were correct in such contention and the license as issued was void, nevertheless the license fee paid by the claimant was paid voluntarily, with a knowledge of the facts, and not under protest, fraud or compulsion, and therefore cannot be recovered.

As stated in The People vs. Lindheimer, 371 Ill. 367-371:

“In the absence of an authoritative statute, taxes, voluntarily, though erroneously paid, cannot be recovered, nor even voluntarily refunded by a county, although there may be justice in the claim.”

To the same effect, LeFevre vs. County of Lee, 353 Ill. 30; American Can Co. vs. Gill, 364 Ill. 254; Richardson vs. Kinney, 337 Ill. 122; Board of Education vs. Toennigs, 297 Ill. 469.

Claimant also contends that she was not advised of the amendment to the Liquor Control Act in force July 1st, 1935, pursuant to which she could have obtained a short-term license for the period ending June 30th, 1936. This contention is of no avail to her in this proceeding. The mistake, if any, was a mistake of law and not a mistake of fact, and it is well recognized in this State that money paid under a mistake of law cannot be recovered.

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

Motion to dismiss allowed. Case dismissed.


text:
    (No. 2983
    Julius Stone, Doing Business as Midwest Liquor Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1941.

    J. H. Johston, for claimant.
    George F. Barrett, Attorney General; John Kassbrman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The Complaint herein alleges in substance that, on or about August 1st, 1936, claimant intended to engage in the liquor business as an importing distributor at 1330 Broadway, Rockford, Illinois, and to that end paid a license fee in the amount of $229.17 and received in return a license issued by the Ulinois Liquor Commission under date of August 3rd, 1936, which license expires June 30th, 1937; that immediately after, the receipt of such license ,the claimant abandoned his intention of engaging in business as an importing distributor of alcoholic liquors in this State and never in fact at any time became engaged in said business, nor is he now engaged therein, nor does he in the future at aiiy time prior to the expiration of1 such license, intend to engage directly or indirectly in business as an importing distributor in the State of Illinois, for the reason that the status of his finances and the condition of his health suffered a change subsequent to the issuance of the license and before he had engaged in any business activity as an importing distributor; — that by reason of the foregoing he asks for a refund of the license fee paid by him for such license.

The Attorney General has entered a motion to dismiss the case.

In the case of Robb vs. State, 9 C. C. R. 156, the facts were practically identical with the case at bar, and in disposing of the question there involved, this court said, page 157:

“Under the terms and provisions of the Illinois 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 precints in which the licensed premises are situated becomes prohibition territory during the term of the license (Art. 9, See. 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 principle 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 certification, 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."

A similar conclusion was reached in the following cases: Samuel Block vs. State, 9 C. C. R. 453; Emil Kellner & Co. vs. State, 9 C. C. R. 465; and S. A. Beals doing business as Wilson-Hazel Drug Co. vs. State, 9 C. C. R. 456.

Under the rule as set forth in the cases cited, we have no authority to allow* an award, and the motion of the Attorney General must therefore be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 3236
    Frank J. Tiernan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1941.

    Claimant, pro se.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

On January 18th, 1938 claimant made application to the Secretary of State for a license for his Chevrolet, town sedan, and remitted the sum of $10.50 therefor, and license plates were duly issued by the Secretary of State. On January 25th, 1938 claimant moved to Bay City, Michigan, and became a resident of that State. Shortly after his removal to Bay City, he traded his Chevrolet town sedan for a 1938 Oldsmobile and was required to purchase Michigan license plates therefor.

The license plates issued by the Secretary of State of the State of Illinois were never used by the claimant, and he asks to be permitted to return same and to have refunded to him the sum of $10.50 which he paid therefor.

The Attorney General has entered a motion to dismiss the case for the reason that the Complaint does not set forth a claim which the State of Illinois as a sovereign commonwealth should discharge and pay.

The identical question here involved was presented to this court in the case of Phillips vs. State, 10 C. C. R. 53. In disposing of the question there involved, this court said:

“There is no provision of the Motor Vehicle Act, or any other Act, which authorizes a return of a license fee under the facts set forth in the complaint. Had the legislature intended that licensees should be entitled to a return of the license fees paid by them, in the event of a sale of the licensed car, they would undoubtedly have made provision to that effect.
It is not contended that the license fee was paid under duress or under a mistake of fact, and the rule is well settled that where a tax is paid voluntarily and without duress or compulsion, and with a full knowledge of the facts, it cannot be recovered back, in the absence of a statute authorizing such recovery. Yates vs. Royal Insurance Co., 200 Ill. 202; Board of Education vs. Toennigs, 297 Ill. 469; Richardson Lubricating Co. vs. Kinney, 337 Ill. 122; American Can Co. vs. Gill, 364 Ill. 254.
“The jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State, either at law or in equity, if the State were suable. Crabtree vs. State, 7 C. C. R. 207; Kramer vs. State, 8 C. C. R. 31; Shumway vs. State, 8 C. C. R. 43; Titone vs. State, No. 2475, decided at the January Term, 1937, of this court.”
“Under the facts set forth in the complaint, claimant could not maintain an action against the State if it were suable, and therefore we have no authority to allow an award.”

To the same effect see Eaid vs. State, 10 C. C. R. 244.

What was said in the Phillips case and in the Eaid case applies with equal force to the case at bar, and therefore the motion of the Attorney General to dismiss must be sustained.

Motion to dismiss allowed. Case dismissed.


author: Mr. Justice Yantis

text:
    (No. 3365
    Minnie Wilson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1941.

    Frank C. Smith, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeks redress under the Workmen’s Compensation Act because of injuries sustained by a fall while employed as a Cottage Mother at the Ilinois Soldiers’ and Sailors’ Children’s Home at Normal, Illinois. Claimant entered the employment of the State July 11, 1938. On August 2, 1938 claimant and her husband, who was also employed at the Institution, left the Administration Building on the school grounds to proceed to their duties at one of the Cottages. The stone stairs going into the building were slippery, and claimant fell all the way down the steps receiving a sprained and broken right wrist. Her husband witnessed the accident, and she immediately saw the School Physician, Dr. Jacob E. Klein who, after examining her wrist, stated that the injury was only a sprain and for her to continue at work and to actively) use the hand. Claimant attempted to do this, but the pain in her hand and arm increased and several days later sb'el again consulted Dr. Klein who again informed her, according to her testimony, that there was nothing wrong with her arm. The intensity of her pain became such that she was forced to give up her work. Upon return to her home in East St. Louis she consulted Dr. Charles F. Alderson. X-ray examinations revealed an impacted fracture of the right wrist, and the entire hand and wrist were greatly swollen. The patient was hospitalized and the fracture was reduced under anesthesia. Thereafter diathermy treatments were given, and the wrist was put in a cast for approximately six weeks. Claimant was unable to return to employment until June 1, 1939, at which time she was restored to her Civil Service rating and was given a position as House Mother at St. Charles School for Boys.

Dr. Charles F. Alderson testified in this cause on June 18,1940, and at that time stated that there was probably a ten per cent disability of the fingers, but that she should have complete recovery functionally of the fingers, and that she would have about ten per cent anatomical disability of the wrist. He further testified in answer to a question. “In how much longer time do you expect the fingers will be completely restored and regain function of the thumb and right hand?” “From the present rate of improvement I would say in six months she should be able to make a tight fist.” He further'testified that at the time of the hearing she had within ten per cent of all the normal movements of the wrist joint, that is, rotary, lateral, anterior flexion and posterior flexion, with no disability to any other part of her right hand.

A further question is .raised in the record as to whether a demand for compensation was technically made within six months after the accident as required by the Workmen’s Compensation Act, or whether such demand as claimant may have expressed within that time was only for payment of medical bills. On August 18, 1938, Mrs. Wilson wrote to her superior at the institution, “Am I not entitled to medical care?” On September 22, 1938, she wrote to Mr. Bussell, Managing Officer of the institution, “I am wondering if there isn’t a Workmen’s Compensation that would partly pay me for time, etc.”

Dr. Klein, the attending physician at the institution, had given conflicting accounts, first denying that he even had knowledge of the accident. Managing Officer Bussell, in a report to Director Bowen on October 6, 1938, referred to Dr. Klein’s service and said, “After investigation I feel reasonably sure Mrs. Wilson’s story is correct.” From the reports made to him, Director Bowen on October 27,1938, stated to Managing Officer Bussell, “I understand from Mrs. Wilson’s letter that she is asking for disability compensation; and the whole matter is one for the Court of Claims.” It is apparent that in however uncertain terms Mrs. Wilson may have expressed her desire and intention to ask for relief under the Workmen’s Compensation Act, the Department head, Mr. Bowen, under whom she was employed, reached the conclusion that she desired redress under the Act. The evidence shows sufficient compliance with the requirements of Section 24 of the Workmen’s Compensation Act in regard to notice, knowledge and demand, and the court finds that claimant is entitled to relief under the Workmen’s Compensation Act.

Although her hand was still somewhat disabled, claimant was able to return to her employment on June 1, 1939, and thereafter received wages, so that the period of temporary total disability is terminated as of that date. Such further claim as she might have would be for specific loss, and while the testimony of Dr. Alderson is that there was at that time ten per cent anatomical disability of the wrist, he further testified that specifically the claimant’s disability consisted at the time of the hearing on September 12, 1940, in a lack of flexion in the fingers of the right hand; that she has complete extension in all the fingers, but cannot quite touch all the fingers and thumb to the palm of the hand. The doctor further testified that there is a probable ten per cent disability present in the use of the fingers and of the wrist, but that at the present rate of improvement claimant should then be able to close her hand into a tight fist. The conclusion, from the doctor’s testimony, is that there is no permanent functional loss of use of claimant’s fingers or hand.

Claimant’s rate of pay in her employment at the time of her injury was $52.50 per month, plus maintenance of $24.00 per month, or a total of $76.50 per month, making an annual wage of $918.00, or an average weekly wage of $17.65 and a compensation base of $8.88 per week.

From the record the court finds that claimant herein, Minnie Wilson, suffered an accidental injury while an employee of the State of Illinois, which accident arose out of and in the course of her employment, and which resulted in accidental injuries for which she is entitled to compensation under the Workmen’s Compensation Act.

That due notice of accident, notice of claim, and application for payment were made within the time limits prescribed by law. That claimant is entitled to temporary total disability for forty-three (43) weeks and one (1) day, being for the period from August 2d, 1938, to June 1, 1939, at $8.88 per week, or $383.10. That no permanent total disability or specific loss payments are due. That claimant has expended and incurred obligations in connection with her accidental injuries which should be paid by respondent, as" follows:

To Dr. Charles F. Alderson $75.00, of which $20.00 has been paid by Mrs. Wilson.

To St. Mary’s Hospital $15.90, heretofore paid by Mrs. Wilson.

To Dr. J. C. Soucy $10.00.

Expense in connection with hospitalization $9.60.

To Dr. Charles E. Ball, X-ray examination, $4.00.

The bill of $25.00 paid to Lucille Engel by claimant for housework does not come within the provisions of the Workmen’s Compensation Act, and no award will be made therefor.

An award is hereby entered pursuant to the foregoing in favor of claimant, Minnie Wilson, for temporary total disability in the sum of $383.10.

To Minnie Wilson for medical, hospital and traveling ex- • pense incurred in connection therewith because of said accident in the total sum of $114.50. Such parts of the above mentioned medical bills as have not been paid by claimant shall be paid by her out of the said award of $114.50 here allowed.

As the full amount of the award has accrued, same is payable to claimant in full at the present time, i.e., $383.10 for temporary total disability and $114.50 for medical, hospital bills, etc.

This award, being subject to the provisions of an Act entitled “An Act making an Appropriation to Pay Compensation Claims of State Employees and providing for the Method of Payment Thereof” (Ill. Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181); and being subject also to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly,” approved July 1, 1939 (Sess. Laws 1939, p. 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided by the foregoing Acts.


author: Mb. Chief Justice Hollerich

text:
    (No. 3450
    Melvin Cook, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1941.

    Graham & Graham, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollerich

delivered the opinion of the court:

Prior to and on the 1st day of July, A. D. 1939, the claimant was in the employ of respondent as a bridge painter in the Division of Highways. On the last mentioned date, while in the course of his employment, and while pulling up a staging on a bridge on S. B. I. Route No. 24, about two miles north of Green Valley, he twisted his knee and thereby injured his right knee joint. He immediately reported the accident to his superior, consulted a local doctor the same day, and was advised by such doctor to consult a bone specialist. He reported for work on July 8th, but was unable to work, and was taken to another doctor that day. On July 10th he was sent to Chicago by the respondent and placed under the care of Dr. H. B. Thomas, professor of orthopedics, University of Illinois Medical College. Dr. Thomas found a fracture of the right patella and internal derangement of the knee joint. On July 23d claimant entered St. Luke’s Hospital, where Dr. Thomas operated on his knee. He remained under the care of Dr. Thomas until August 16, 1939, when he returned to his home in Pittsfield. Several abscesses developed shortly thereafter, and he was returned to Chicago by the respondent and treated by Dr. Thomas until September 2d, when he again returned to his home. On October 2d and 3d he returned to his work as a painter, but was unable to continue with the work on account of the pain in his knee. On October 31st he was again returned to Chicago by the respondent, was examined by Dr. Thomas, and returned to his home on November 2d.

Dr. Thomas, in his final report of November 1, 1939, stated that everything about the knee was satisfactory; that claimant had complete extension and flexion to 95 degrees. He further stated that in his opinion this motion could be increased with more physiotherapy, and advised that claimant be given lighter work until the tissues could adjust themselves and give more stability to the knee.

Dr. Martin A. Reichman, who was called as a witness on behalf of the claimant, stated that the normal range of flexion of claimant’s left leg was about 170 degrees; that when he examined claimant on January 3, 1940, he had about 150 degrees flexion in the right knee; that ordinarily a person has the same range of flexion in both knees; that at the time of the hearing, to wit, on May 21,1940, claimant had complete extension, but had a loss of flexion, which he estimated -to be between ten and fifteen degrees.

From a consideration of the record before us we find as follows:

That on July 1,1939, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State; that on such date claimant sustained accidental injuries which arose out of and in the course of his employment; that notice of the accident was given to said respondent and claim for compensation on account thereof was made within the time required, by the provisions of such Act; that the claimant’s wages were ninety cents (90c) per hour, limited to forty (40) hours per week; that the earnings of the claimant' during the year preceding the accident, computed in accordance with the provisions of Section Ten (10) of the Workmen’s Compensation Act, as construed by our Supreme Court in the case of Ruda vs. Ind. Com., 283 Ill. 550, wóre two hundred (200) times his daily wage, to wit, Fourteen Hundred Forty Dollars ($1,440.00), and his average weekly wage was Twenty-seven Dollars and Sixty-nine Cents ($27.69); that claimant at the time of the injury had one child under the age of sixteen (16) years; that all necessary first aid, medical, surgical, and hospital services were provided by respondent; that claimant was temporarily totally disabled from the date of his injury as aforesaid to December 4, 1939, to wit, for a period of twenty-two and two-sevenths (22 2/7) weeks; that he also suffered the permanent loss of ten per cent (10%) of the use of his right leg; that the sum of Four Hundred Forty-three Dollars and Ninety-four Cents ($443.94) has been paid by respondent for non-productive time, and such sum must therefore be held to apply on the compensation due the claimant as aforesaid.

We further find that the claimant is entitled to have and receive from respondent the sum of Sixteen Dollars and Fifty Cents ($16.50) per week for 22-2/7 weeks temporary total disability, in accordance with the provisions of paragraph (b) of Section eight (8) of the Workmen's Compensation Act, and the further sum of $16.50 per week for the period of Nineteen (19) weeks for the permanent loss of ten per cent (10%) of the use of his right leg in accordance with the provisions of paragraph E-15 and paragraph L of Section eight (8) of such Act, less the sum of $443.94 heretofore paid by the respondent, making a net amount of Two Hundred Thirty-seven Dollars and Twenty-seven Cents ($237.27).

We further find that all of the compensation due to claimant as aforesaid has accrued at this time.

Award is therefore entered in favor of the claimant, Melvin Cook, for the sum of Two Hundred Thirty-seven Dollars and Twenty-seven Cents ($237.27).

This award, being subject to the provisions of an Act entitled “An Act making an Appropriation to Pay Compensation Claims of State Employees and providing for the Method of Payment Thereof” (Illinois Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.


text:
    (No. 2665
    Michael W. Bergen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 8, 1941.

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

delivered the opinion of the court:

This claim is submitted upon an original and an amended complaint; the facts being that on April 9, 1935, claimant was employed under a classification as vault clerk for respondent in the office of the Secretary of State in the State Capitol Building, Springfield, Illinois. The duties were more that of a messenger or helper than as a clerk, in that claimant’s work was to remove and replace the corporate files in the several vaults operated by the Corporation Department. One vault is about twenty-five (25) feet high, with a subfloor about fifteen (15) feet above the first. The second floor is reached by climbing an iron stairway that runs from first to second floor at an angle of about seventy (70) degrees. The upper vault is nine (9) by fourteen (14) feet, and in addition to the stairway is reached with four twelve (12) foot ladders used in taking or replacing files from that vault. The latter is so small that it is impossible to fasten the ladders in such a way that they will not wobble when being used. In descending one of these ladders while removing a file, claimant’s foot slipped and he fell, striking his leg near the crotch on the corner of a chair, by reason of which his leg* was torn to such an extent that four stitches were required, and by reason thereof claimant was forced to be absent from his work for two weeks and to procure medical assistance, for which he expended the sum of Twenty-nine ($29.00) Dollars.

No claim is made for disability, but claimant seeks an award in reimbursement of the expense occasioned by him in said sum of Twenty-nine ($29.00) Dollars.

The Secretary of • State' has charge of the State House and the operation of same, and therein causes to be operated several elevators necessary for the handling of traffic. We have heretofore held that where the particular work done by the individual employee who suffers injuries while so employed by the Secretary of State,'was in fact hazardous, such employee would be entitled to compensation under the provisions of the Workmen’s Compensation Act. This case is somewhat analogous to the case of Alfred W. Evans vs. State, C. C. R. No. 3087, wherein an award was granted March 12, 1941, for injuries and medical expense incurred by Claimant Evans while employed as a janitor custodian in the Attorney General’s office. In the course of his duties he tripped on a chair and his left hand was thrust into a moving fan, breaking the bones and tearing the ligaments of his fingers. An award was allowed therein for such accidental injuries and medical care.

Another analogous case is that of Dorothy C. Lynch, 9 C. C. R. 290, in which claimant while employed as a file clerk in the Automobile License Department of the Secretary of State’s office, was injured by a fall from an iron stairway leading from the main floor to a balcony in the office where she was employed. Because of the use of sharp-edged cutting tools employed in that office and of municipal regulations applying thereto, the court there held that the enterprise in which claimant was employed at the time of the accident in question was an extra hazardous enterprise within the meaning of those words as used in Section 3 of the Workmen’s Compensation Act. In the Lynch case application for compensation not having been filed within the time required by Section 24 of the Act, no award for disability was allowed, but it appearing therein that claimant had incurred medical, surgical and hospital bills to a large amount in being cured of the effects of the injury, an award was entered under Section 8 of the Workmen’s Compensation Act in payment of such medical and hospital bills, the court there holding that “Inasmuch as Section 8 of the Compensation Act provides that furnishing by the employer of medical, surgical or hospital services shall not be construed as the payment of compensation, the requirements of Section 24 do not apply to claims within the Act for medical, surgical or hospital services as distinguished from claims for compensation for injuries.”

The court finds that claimant, Michael W. Bergen, suffered accidental injuries arising out of and in the course of his employment while employed by respondent; that due notice of the accident and claim for medical aid and the application for payment thereof were all made within the statutory period prescribed by the Illinois Workmen’s Compensation Act, and that claimant is entitled to an award in reimbursement of the moneys expended or payable by him for medical aid in recovering from the effects thereof in the sum of Twenty-nine ($29.00) Dollars.

An award is therefore allowed in favor of claimant in reimbursement of the expenses incurred by him as aforesaid in the sum of Twenty-nine ($29.00) Dollars for injuries arising out of and in the course of his employment.


text:
    (No. 3132
    Jesse Miller, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 8, 1941.

    Herrick & Twente, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

On October 21, 1937, the claimant, Jesse E. Miller, filed his complaint with the clerk of this court, and alleged that for more than ten years prior thereto he had been the owner, in fee, of three different tracts of land, and set forth their descriptions, totalling approximately seventy-seven acres. It is also claimed that at the time of and for many years prior to the acts of the State of Illinois in the year 1931 which are complained of, these lands were fit for general agricultural purposes. It is very apparent from the complaint that the wrongful acts of the State were committed several years prior to the year 1931. It is also charged that for more than one hundred years prior to the acts complained of there was located about a mile east of these lands a body of water or lake, commonly known as Horse Shoe Lake, the normal water line or level of which was lower than the level or surface of the tracts of land described in the complaint, and these lands drained into this body of water.

It is also charged that the State of Illinois, in the year of 1931, through its Department of Conservation, constructed a dam across the natural outlet of this lake and has maintained a game reserve in said lake; that this raised the level of the water of the lake, and did thereby wrongfully and illegally flood and wholly submerge these lands, and the lands have been rendered of much less value than what they were prior to the building of this dam.

A bill of particulars was filed, showing damages amounting to the sum of $1,495.00.

The Attorney General filed a motion to dismiss this complaint on the ground that it is apparent from the complaint that the Statute of Limitations has run, for the reason that the alleged wrongful acts complained of occurred several years prior to the year of 1931 and during the year of 1931.

It is a part of the statute creating the Court of Claims that every claim against the State, cognizable by the Court of Claims, shall be forever barred unless the claim is filed with the Secretary of the Court within five years after the claim first accrues, with certain exceptions, including infants, idiots, lunatics, insane persons, etc. (See Par. 436, Chapter 37, Illinois Revised Statutes, 1937.)

This court has held that where it appears from the face of the claim that same is barred by Statute of Limitations, a plea thereof will be sustained. See Ragains vs. State, 8 C. C. R. 21; Wiskirchen vs. State, 7 C. C. R. 17; Crawford vs. State, 7 C. C. R. 113, and other similar cases.

For this reason the motion of the Attorney General must be sustained and cause dismissed. Award denied.


text:
    (No. 3142
    George C. Moore, Claimant, vs. State of Illinois, Respondent.
    'Opinion filed April 8, 1941.

    Max J. Becker, for claimant.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court :

The complaint in this case avers that claimant on March 15, 1936, was hired by George Scully, the then Supervisor of Paroles, as Field Parole Agent, for which he was to receive' Ninety-eight Dollars ($98.00) per month; that he worked one month in that capacity, from March 15th, 1936, to April 15, 1936, and that without fault on his part he was discharged; that he has received no moneys therefor. Claimant asks that he be paid a salary for that month in the amount of Ninety-eight Dollars ($98.00).

This complaint was filed on November 10, 1937, and on November 18, 1937, the Attorney General filed a motion to dismiss, and as grounds for said motion set forth:-

1. If the State was liable to the claimant for salary and wages for services rendered from March 15 to April 15, 1936, he had an adequate remedy in a court of general jurisdiction which he has failed to pursue.

2. The complaint does not contain allegations which establish that claimant was legally appointed to the position of field parole agent.

In view of the position we take in this matter, it will not be necessary to consider the first point raised by the Attorney General.

The position of field parole agent is a position within the classified civil service in the State of Illinoiis.

Paragraph 3, chapter 24%, Illinois Revised Statutes, 1937.

The Director of the Department of Public Welfare is the only person who has authority to hire a field parole agent.

Paragraphs 2, 3 and 4, chapter 127, Illinois Revised Statutes, 1937.

The complaint does not contain allegations which establish the legal appointment of the claimant, and the motion of the Attorney General must be sustained and an award denied.


author: Mr. Justice Linsgott

text:
    (No. 3168
    Laura Morgan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 8, 1941.

    PoPFENHUSEN, JOHNSTON, THOMPSON & RAYMOND (ALBERT E. Jenner, Jr., of Counsel), for claimant.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent. '
   Mr. Justice Linsgott

delivered the opinion, of the court:

The complaint in this case avers that Laura Morgan, the claimant, is a citizen and resident of the County of Cook and State of Illinois; that on the month of September, 1933, she was appointed by the Honorable J. Paul Califf, now deceased, then Circuit Court Judge in the 14th Judicial Circuit of the State of Hlinois, comprising the counties of Bock Island, Mercer, Whiteside and Henry, as an official court reporter for said judge and said circuit; that pursuant to statute, her compensation was fixed at the sum of Two Hundred Seventy Dollars ($270.00) per month; that immediately after the appointment she qualified, and from thenceforward acted as an official court reporter for the Honorable J. Paul Califf, deceased, in said circuit, until the death of the said judge in the month of August, 1935. It is further averred that she received her check covering services for the month of August, although it is not averred on what date Judge Califf died.

It is further averred that claimant continued to act as an official court reporter in the 14th circuit, and at the end of September received her check for services in the sum of Two Hundred Sixteen Dollars ($216.00).

It is also averred that after the death of Judge Califf the Honorable Albert M. Crampton, Judge of the City Court of Moline, Illinois, pursuant to authority vested in him by statute, was called in the month of September, 1935, to sit as a judge of such 14th circuit pending an election to fill the vacancy caused by the death of Judge Califf; that claimant continued to act as an official court reporter during the months of October, November and December, 1935, and the month of January, 1936, but did not receive any salary during the said months of October, November and December, 1935, and January, 1936.

The Attorney General has made a motion to dismiss this case, and by this motion admits all the facts properly pleaded to be true, but denies their sufficiency in law. The Attorney General has relied upon the case of People vs. Barrett, 365 Ill. 73. Counsel for claimant has filed a brief on her behalf and it is ably and strenuously argued that there is a difference between the facts in the Barrett case and in the case at bar, and that difference is that the court reporter there had not performed any services, while in the case at bar she had performed four months’ services at the request of sitting judges for which she received no compensation. It must be admitted that there is a difference in the facts, but there is no difference in the rule applying to both cases. .

The Supreme Court of this State in the Barrett case, supra, devoted some twelve or thirteen pages to a discussion of the principles therein involved. This was probably done because of the eminence of counsel in the Barrett case. Many questions before the court in that case are not involved herein. The court' referred to the statute authorizing the appointment of court reporters, and the amendments thereto. The court referred to the Act of 1927, which provided that each judge should appoint one court reporter, and which made provision for the appointment of court reporters by circuit, superior and city courts in this State. The Act also provided that such appointment should be made in writing and filed in the office of the Auditor of Public Accounts, and continue in force until revoked by the judge making the appointment, and specifically provided that the reporter so appointed should hold his position during the pleasure of the judge so appointing him, not, however, to extend beyond the time the judge making such appointment shall be elected for. A proviso was attached to the effect that in case of the absence or disability of said reporter so appointed, the presiding judge may appoint any other competent réporter to act in Ms place during such absence or disability, wMch said substitute shall be paid by said official reporter for his said services, etc. (State Bar Stat. 1935, chap. 37, par. 156.) The court also made reference to Section 12 of Article 6 of the Constitution, but that constitutional question is in no way involved in the case at bar.

In the case before us the appointing judge died. The Barrett case is authority that the statute cannot be construed without noticing that each and every judge of the circuit and superior courts has Ms personal court reporter. In the Barrett case, the court continuing said: “If it should be held that when a judge resigns Ms court reporter continues in office, it would be with nothing to do except to draw the salary, because any other judge called in to do the work of the court would have his own duly appointed court reporter to work for him and with him, and he might not wish to work with some other reporter. So, it is true in this case. The statute provides that the judge of a city court may appoint his own court reporter. In the Barrett case the court also said: “It is urged that the words ‘not, however, to extend beyond the time the judge making such appointment shall be elected for,’ must be given effect in construing the statute, and that these words are in some manner and to some extent descriptive of the term for which the appointment is made.” We find no difficulty in giving the same effect to the words, and like the Supreme Court, we cannot construe them as counsel for claimant insists they should be construed.

Claimant contends that this court has passed upon this question in the case of Shell vs. State of Illinois, 8 C. C. R. 235, decided November 13,1934. That case was decided upon the authority in the case of The People ex rel. Kelley, 134 Ill. App. 642. Since that time the Supreme Court passed upon this question in the Barrett case. In the Shell case the court reporter continued with his work and duties as official court reporter and rendered services at the request of the circuit judges. In the case of Cox vs. State of Illinois, 10 C. C. R. 381, in a per curiam opinion, this court overruled the holdings in the Shell case on the authority of the Barrett case, and in the case at bar we must hold that there is no distinction between the Barrett case and this one.

The motion of the Attorney General will, therefore, be sustained and award denied.