text:
      (No. 1498
    Bertha E. Wilson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1929.

    Manuel M. Wiseman, for claimant.
    . Oscae E. Cablstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant was employed as an attendant at the Alton State Hospital for the Insane. In the basement of Amusement Hall there is a bowling alley which the employees are permitted to use. On Sunday evening, March 31, 1929, claimant and another employee started to the bowling alley. A flight of seven or eight steps led from the outside down to the basement where the bowling alley was located. It was dark and raining and claimant was carrying an umbrella. When they reached the steps her companion went down ahead of her. Claimant turned to put down her umbrella as she started down the steps and missed the first step causing her to fall to the bottom. She was assisted to the hospital where she was examined by the physician in charge and given treatment. She remained in the hospital about five days and was discharged as cured. She was told by the .physician to go back to work and did so, and has continued to do her work ever since. She claims the second vertebra was fractured and her spine otherwise injured and that her nervous system has been permanently injured, and asks an award of $5,000.00.

At the time she received her alleged injuries claimant was not engaged in any duties of her employment. Her services for the day ended and she was going to the bowling-alley for her own amusement. She was thoroughly familiar with the location of the steps and knew they were not lighted. It is apparent from the evidence that her fall was caused by her own lack of care. It was an accident for which the State officials were in no way responsible. Had her injury been caused by the negligence of the agents of the State she would not be entitled to recover, as the State is never liable for the negligence of its officers and agents. She is not entitled to compensation under the Workmen’s Compensation Act (1) because the maintenance of a hospital for the insane is not one of the enterprises declared by section 3 of that Act to be extra hazardous, and (2) because her injury did not arise out of and in the course of her employment.

The evidence clearly shows she was not permanently injured and that none of her vertebra was fractured. She was able to go back to her work in five or six days after the accident and has been at her work ever since. Under no theory is she entitled to an award.

The claim is therefore denied and the case dismissed.


source: Caselaw Access Project

author: Mr. Chief Justice Clarity

license: Public Domain

text:
    (No. 1532
    Ray H. Allen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1929.

    Chiperfield & Chiperfield, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears that the claimant was employed by the Western Illinois State Teachers College at Macomb, to officiate as a referee in a basket-ball tournament and while thus employed, the claimant received an injury by being struck by a basket-ball thrown by one of the team of the State School for the Deaf, which struck the claimant in his right eye and caused him to lose the sight thereof.

Following precedent, this claim should be measured under the Workmen’s Compensation Act. There is no contradiction as to the question of the loss of the sight of the eye and the only evidence as to medical service and hospital aid, given to claimant amounted to $1,098.00.

As this court views the law, the claimant could only be properly allowed $15.00 per week and for 120 weeks, making a total of $1,800.00.

Therefore, this court recommends that claimant be allowed $2,898.00.


author: Mr. Justice Thomas

text:
    (No. 1542
    George Wolfe, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1929.

    George Wolfe, pro se.
    Oscar E. Carlstrom, Attorney General; Rot D. Johnson,' Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant asks an award for damages alleged to have been caused by mistreatment he received in 1912 and 1913 while a prisoner in the State Reformatory at Pontiac.. He charges that while he was a prisoner there he was assaulted and beaten by the guards, physicians and other officials, as a result of which he became sick and suffered loss of memory and other mental and physical disorders. To the declaration the State has filed a plea of former adjudication.

Claimant filed a claim in this court based on the same facts and circumstances as this claim in 1921 and upon a hearing thereof the same was denied at the September term, 1924. (Wolfe v. State, 5 Ct. Cl. 18.) The cause having once been heard and decided by this court will not be considered again.

If the claim had not been previously considered and determined against claimant it would have to be denied as it has long been barred by the Statute of Limitations.

The claim is denied and the case dismissed.


text:
    (No. 1332
    Allyn C. Breed, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1930.

    Soholes, O’Connor & Dougherty, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the I court:

It appears that claimant, was riding from Freeport, lilinois, enroute to Rock Island, Illinois, on the fifth day of July, 1927, the car being driven by the wife of claimant by whom it is alleged that the car was being driven at the rate of thirty to thirty-five miles an hour and at a point about three miles East of Morrison, Illinois, in passing another automobile going in the opposite direction, the right rear wheel dropped off the pavement and in an attempt to get the car back on the pavement, on account of the alleged fact that the shoulder was six inches below the pavement, which caused the car to swerve and run off the road into the ditch injuring the claimant’s wife and daughter.

From all of the facts and circumstances in the case, it would not appear that a prudent driver would recognize a necessity of going off the pavement under the circumstances in question and therefore, it is the opinion that no action should lie against the State of Illinois.

It is also shown that the shoulder was not six inches below the pavement and that if reasonable caution was exercised by the driver of the. car in question, that no accident should occtir.

This court recommends that this claim be disallowed.


text:
    (No. 1412
    R. F. Conway Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 7, 1929.

      Rehearing denied January 15, 1930.

    E. S. & J. W. Cummings, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

On April 22, 1924, claimant entered into a contract with, the State to construct section 23 of State Bond Issue Route No. 18 in Bureau County. Claimant was to furnish all labor and material necessary for the construction of the road and ,was to do the work in accordance with the plans and specifications therefor, the proposal to contractors, bond, specifications and plans all being made a part of the contract. The work was started and had progressed to within about a mile of the Village of LaMoille when- claimant was notified that about one half mile of the road would not be- built because the right of way for that portion had not been procured from the owner of the land. When the work reached the point where the right of way had not been secured claimant, at the direction of the State Engineer, moved its equipment forward about one half mile and proceeded with the work. In about a month after that move the engineers notified claimant that the State had decided to build the omitted portion of the road and asked claimant to proceed with the construction of it. Claimant asked the engineers if it would be paid any extra compensation if it moved its equipment back and built the omitted portion and was told by all of them they were not authorized to state that any extra compensation would be allowed, and no one representing the State ever promised to pay any extra compensation or assured claimant that it would receive any. Claimant then moved part of its equipment back and constructed the omitted portion of the road for which it was paid the full contract price, but no extra compensation was paid or allowed. . When the entire road was completed it was received by the State and claimant was paid in full in accordance with the terms of its contract for nil the work done.

Claimant now asks for an award of $4,000.00 to compensate it for alleged extra expense incurred by being required to skip the omitted portion of the road and then return and build it later.

In its contract claimant agreed to construct the portion of the road skipped, it was a part of the work claimant contracted to do. It was not extra work but had it been claimant could not recover for many of the items making up its demand, as the specifications provide no charge shall be made for them should work not covered by the plans and specifications be done by the contractor. As claimant is barred from recovery on other grounds it is not necessary to discuss those items in detail.

Section 19 of Article 4 of the Constitution provides that “the G-eneral Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made,” etc. This provision of the Constitution is mandatory and binding upon the Legislature .and all courts of the State. (Pachen Bros. v. State, No. 760, opinion filed Sept. 13, 1927.) Its language is clear and unambiguous and its purpose cannot be misunderstood. Fergus v. Brady, 277 Ill. 272.) It was adopted by the people to protect themselves from the mischiefs and evils likely to arise out. of claims such as this. (Dunnegan Construction Co. v. State, No. 1021, opinion filed Sept. 10, 1929.) The contract between claimant and the State required claimant to do the work in question and fixed the compensation it was to receive for doing the work. The work has been completed and the contract price for it fully paid and no extra compensation can now be allowed. To do so would be a patent violation of the above provision of the Constitution.

The award is therefore denied and the claim dismissed.

On January 15, 1930, upon petition for rehearing the following additional opinion was filed:

Claimant has filed a petition for rehearing and reconsideration of this case. We have duly considered the reasons set forth in the petition for a reconsideration of the case and find no reason for changing the views and reasons given in the opinion denying the award. The petition for a rehearing is therefore denied.


text:
    (No. 1474
    Hartmann-Clark Bros. Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1929.

      Rehearing granted June 86, 1989.

      Modified opinion filed January 15, 1930.

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

delivered the opinion of the court: '

The claimant an Illinois corporation, entered into a contract with the State of Illinois by its Department of Public Works and Buildings for the erection and construction of a girder bridge on a part of the State Bond Issue Route No. 24, Tazewell County, Illinois. It appears by said contract that claimant was to receive the sum of $23,131.90. The claimant entered upon the performance of his contract and it is alleged that on or about the 27th day of May, 1927, an unprecedented flood occurred which washed away the construction work done on said bridge with materials to be used in the construction of said bridge together with tools belonging to claimant causing claimant a loss for which he asks to recover the sum of Ten Thousand ($10,000.00) Dollars. It further appears after said flood and loss that the Highway Department thought it best to discontinue the contract. The court fails to find that any protest was made by claimant on this ground.

The Attorney General comes and submits the matter to this court for such disposition as the court would care to make.

This court is of the opinion that it would be an unusual precedent to attempt to reimburse a contractor in a loss of this character, it being assumed by the court that a contract- or would enter upon a project of this kind mindful of the hazards attendant thereto and while it is unfortunate for claimant to sustain this loss, yet it would appear that a private corporation .would not be expected to undertake the problem of underwriting a hazard of this character. The court does not think the State of Illinois ought to be called upon to insure a roadbuilder or bridgebuilder against weather hazards unless the same is specified in the contract..

Therefore it is recommended that the said claim be denied.

On June 26, 1929, upon petition for rehearing, the following order granting rehearing, was filed:

The petition for rehearing coming on to be heard, by the Court, and the Court being fully advised in the premises finds that petition for rehearing should be granted and therefore the same is hereby granted.

On January 15; 1930, the following modified opinion was filed:

This is a case that has heretofore been passed upon by the court and claim denied and rehearing granted and now the matter comes on for rehearing and the court feels that the expenses incurred, by claimant, the correctness of which urns approved by the State Highway Department, and the defendant, through the Attorney General concurs in the belief that claimant suffered damages in the sum of $6,147.29.

Therefore, the court recommends that claimant be awarded the sum of $6,147.29.


text:
    (No. 1481
    A. N. Pierce, George Pierce, and Joseph Pierce, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1930.

    Bolla Babcock, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim to recover damages suffered by claimants on April 5th, 1929, caused by reason of a fire communicated from an asphalt tank furnace of the defendant while working along and upon the State road, bordering upon claimant’s property.

Prom all facts and circumstances, it would indicate that the fire was communicated from coals of fire from this tank and that about forty acres of clover crop of the claimants, was damaged and destroyed.

The claimants ask for $20.00 an acre, or $800.00 as reasonable damage, but from all of the evidence in this case, this court is convinced that, that allowance would be more than the facts would permit; however, there, should be some allowance and the court recommends that claimants be allowed $10.00 an acre, for the loss of the clover crop in question, or a total of $400.00.

Therefore, we recommend an award in the amount of $400.00.


text:
    (No. 1504
    Elmer Flesburg, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1930.

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

delivered the opinion of the court:

The claimant a farmer located in Boberts township, Marshall county, Illinois, claims damages for the loss of a cow. It is alleged that the animal died from fright occasioned by being tested by the State veterinarian for ■ tuberculosis. It is claimed further that the cow in question gave birth to a calf and that the veterinarian insisted that this cow be tested with the other cattle although the owmer protested that on account of the delicate condition of the cow that the test would be very dangerous. However it appears that the test was then and there made and the cow died shortly after the

This court is of the opinion that the intent of the law to protect animal industry and eradicate the disease in question was. to protect owners as far as possible and from all the records we are of the opinion that the test made in question was at least hazardously made on an animal as it appears was done in this' case. It is therefore considered by the court that an allowance should be made for the animal in question and as a matter of equity and good conscience this court recommends that the sum of One Hundred and Twenty-five Dollars be allowed.


text:
    (No. 1514
    E. O. Erickson, and Lena Erickson, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1930.

    Tom W. Smurr, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

The declaration and pleadings in this case are identical with those in Richeim v. State, No. 1513, and for the reasons set forth in the opinion filed in that case this claim is denied, and the ease dismissed.


text:
    (No. 1515
    Joseph Berta, and Virginia Berta, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1930.

    Tom W. Smurr, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

The declaration and pleadings in this case are identical with those in Rickeim v. State, No. 1513, and for the reasons set forth in the opinion filed in that case this claim is denied and the case dismissed.


text:
    (No. 1522
    Union Bank of Chicago, Administrator of the Estate of Mary Rotchild, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1930.

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

delivered the opinion of the court:

This is a claim based on an alleged fact that Mary Rotchild a minor aged 10 years was playing upon a slide in Humboldt Park, located in the City of Chicago, Illinois, and it is claimed that said slide was not in good -order and proper repair, the guard rails being broken off. It appears that the said child fell from said slide and was injured to such an extent that she died from same on the 30th day of July, 1928.

The defendant through the Attorney General comes and files a demurrer and the consideration of this claim now rests upon a question of law which the court wishes to cite its position ill the case of Perkins, Fellows & Hamilton v. State of Illinois, which appears in Court of Claims Reports, volume number 4, page 197, and therefore this court finds no reason to depart from this rule as it cannot be urged that said Humboldt Park is not under the jurisdiction of the West Chicago Park Commissioners capable of suing-and being sued.

Therefore it is the opinion of this court that the Court of Claims «is without jurisdiction in the matter of this suit and the demurrer is sustained.


text:
    (No. 1235
    Luke Nolan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1930.

    Joseph R. Martin, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

The claimant, the owner of a certain horse named Prince, 8 years old, while drivirig said horse along the highway running to Cuba from the north.

Near the City of Cuba there was a mud hole according to the allegations of claimant and in attempting to pass this spot the horse became mired in said mud hole and sustained a broken leg which it is claimed made it necessary to kill the horse.

It is contended by the State that the highway in question was not taken over by the State under either the $60,000,000 or $100,000,000 bond issue but still being a State aid road and this court would be without jurisdiction.

■ From all the evidence in this case, it is the opinion of this court that the contention of the defendant is correct and therefore said claim is disallowed.


text:
    (No. 1299
    Foreman Trust & Savings Bank, Administrator of the Estate of Michael Cordascio, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1930.

    Wm. E. Rodriguez & John E. Molony, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton and Roy D. Johnson, Assistants Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears that Michael Cardascio, fourteen years old, was playing on the premises of the Illinois State Research Hospital located at 1819 West Polk Street, in the City of Chicago, together with other boys. It appears further by claimant’s statement that an iron gate was resting against a brick and stone gate post and it is alleged That the iron gate provided a kind of a ladder upon which the children could climb. It appeared Michael climbed to the top of the ■gate and while attempting to take hold -of the stone ball which was part of the masonry on said gate post, it broke loose from the post causing Michael to fall downward onto one of the iron pickets which injured him to such an extent that he died on the same day. The main claim was based on the fact as alleged that defendant was maintaining an attractive nuisance.

It would seem that defendant would be drifting far into an avalanche of responsibility to assume a liability in this case. In close examination of all the files in the case the court is of the opinion that there is a doubt as to whether or not an attractive nuisance prevailed as alleged by claimant. It can be assumed with reason that it is almost impossible to create a neighborhood where children would play and not encounter danger of any kind. There is constant danger in almost all walks of life and to start in to anticipate the possibilities would be a grave undertaking. Children are injured in their own homes, on the streets, in the school grounds and play grounds and to attempt to impose an obligation upon the taxpayers of Illinois in a claim of this kind, would in the opinion of this court go far beyond the problems of the Court of Claims.

It is expected of this court that all reasonable demands be met fairly and justly but it is the opinion of the court that in this case equity and good conscience in the matter of an allowance cannot be considered and of course as a matter of law no claim could attach in this case.

Therefore this court recommends that said claim be disallowed.


text:
    (No. 1339
    Green & Sons Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1929.

      Rehearing denied March 12, 1930.

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

delivered the opinion of the court:

This claim is brought against the State of Illinois for the sum of $50,692.49 for compensation for eight months service by it as Superintendent of Construction on contracts numbers 5 and 6 on the Illinois Waterway, known as the retaining wall, lock and dam for the Brandon Road Pool.

The services claimed on, were performed during eight months between November 1st, 1927 and July 1st, 1928. The claim is based on an agreement, that the State agreed to furnish all of the material and labor by direct employment for performance of the contracts and agreed to employ Green & Sons Company and its officers, Robert IT. Green, Earl R. Green and Roy Shackleton in the superintendence of the construction and pay for such service, a commission of ten percent on the fee cost of the contract.

The defendant, the State of Illinois, comes and files their demurrer, and the issue now before the court, is upon same.

In the first instant, the court wishes to cite section 13, paragraph 91, chapter 19 of the Illinois Waterway Act, Smith-Hurd’s Revised Statutes, 1927, as follows:

“Before any contract entailing the expenditure of Five Thousand Dollars or more is entered into, public notice shall be given of the time and place at which proposals shall he received for entering into contracts, which notices shall he previously published for at least once a week for four weeks in two daily newspapers printed in the city of Chicago, in two engineering and contracting journals of general circulation in the United States, and in such other publication as may be deemed proper.” •

The court is further of the opinion that the real intent of the Legislature in all acts affecting the taxpayers of the State in all matters, and involving the expenditure of considerable sums of mon'ey, is to give every opportunity for competitive bids.

It would seem that if power is given, or intended to be given by the Legislature to officers of the State to enter upon any contract, or arrangement for the expenditure for large sums of money without the public having full knowledge and opportunity of bidding as contemplated by the above cited section of the statute, that injustice might be done.

From the records, there is nothing to disclose that the matter was not entered into in good faith by claimant and the officers making the agreement with them, but it is the opinion of the court that this agreement upon which this claim is based was invalid as is set forth in the Attorney General’s opinion in this case.

This court is further of the opinion, therefore, that the State of Illinois, is not bound in view of all the facts before the court, and the court hereby sustains the demurrer of the defendant, the State of Illinois.

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

This matter coming on to be heard upon the petition for rehearing, and the court now being further fully advised in the premises, finds no reason to change the order, and decree heretofore entered.

Therefore the petition for rehearing is denied.


author: Mr. Justioe Thomas

text:
    (No. 1404
    Margaret Shaw, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 16, 1929.

      Rehearing denied March 12, 1930.

    Francis C. Vonachen, for claimant.
    Oscar E. Carlstrom, Attorney General; Rot D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justioe Thomas

delivered the opinion of the court:

Claimant was a night attendant in one of the violent wards of the Peoria State Hospital for the Insane. She alleges that on the 21st day of December, 1927, one of the patients struck her a blow on the head knocking her down and, that in falling, she struck her left limb on an iron bed and permanently injured it. She asks compensation under the provisions of the Workmen’s Compensation Act on the theory said act applies automatically to the State.

The provisions of the Workmen’s Compensation Act automatically apply to the State only when the State is engaged in, some of the enterprises declared to be extra hazardous by section 3 of that act. The maintenance of a hospital for the insane is not an enterprise declared extra hazardous by that section, and the provisions of the Workmen’s Compensation Act do not apply. (Mclnturff v. State, 5 Ct. Cl. 314.)

Claimant voluntarily accepted the employment in which she was engaged at the time of her alleged injury and assumed the ordinary perils of the work she was engaged to perform. (Neighbors v. State, 5 Ct. Cl. 238; Consolidated Coal Co. v. Haenni, 146 Ill. 614; Illinois Terminal R. R. Co. v. Thompson, 210 Ill. 226.) It is a matter of common knowledge that the care of the insane is attended with danger. One who voluntarily undertakes the duties of supervising and caring for such persons assumes all the risks ordinarily incident to such employment. As claimant’s alleged injury was the result of the risks she assumed she is not entitled to an award.

The claim is therefore denied and the case dismissed.

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

Claimant bases her petition- for a rehearing on the ground that prior to the taking of testimony- it was agreed by the attorneys for claimant and the State that the Workmen’s Compensation Act applied to the case and, relying on such agreement, claimant took no testimony relative to the State being subject to that act. Whether or not the Workmen’s Compensation Act applies to the State is to be determined from the provisions of the Act and not from evidence. As we pointed out in the opinion, that Act only applies to the State when the State is engaged in some one of the enterprises declared by section 3 of the Act to be extra hazardous, and the maintenance of a hospital for the .insane is not such an enterprise. The petition for rehearing is denied.


text:
    (No. 1451
    Louis A. Stiles, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1929.

      Rehearing denied March 12, 1930.

    Wallace J. Black & Clyde M. West, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

The claimant bases his cause of action upon injuries sustained by reason of an accident which occurred on Route 29, about one mile and a half north of Mossville on February 15th, 1928.

Claimant alleges he was driving a team in a northerly direction in the morning of said date and met a driver with a State truck coming in a southerly direction. It seems that the team became frightened and the claimant was injured.

It appears to the court from all evidence that there was no negligence on the part of the truck driver and that he was driving at a moderate rate of speed. On the other hand, it appears that the claimant was driving a young team and should, in view of that fact, exercise the greatest degree of care and comprehend the danger incidental to driving such a team and meeting cars, trucks and other conveyances upon the highways.

This court is of the opinion, in view of all of the facts as shown here, that the defendant, the State of Illinois, should not be charged with liability in a claim of this character.

Therefore, it is recommended, that the claim be disallowed.

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

This matter coming on to be heard upon the petition for rehearing, and the court now being fully advised in the premises, finds no reason to change the order and decree heretofore entered.

Therefore the petition for rehearing is denied.


author: Mr. Justice Thom:as

text:
    (No. 1499
    Burpee Can Sealer Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1930.

    Burpee Can Sealer Company, pro se.
    Oscar E.' Carlstrom, Attorney General ,• David J. Kadyic, Assistant Attorney General, for respondent.
   Mr. Justice Thom:as

delivered the opinion of the court:

Claimant’s declaration alleges that in the year 1928 it paid by mistake $17.15 more franchise tax than it was legally required to pay. To this declaration the State has filed a general demurrer. While the declaration may be informal, the demurrer is only general, and we think the declaration states sufficient grounds to sustain an award, and the demurrer will be overruled.

Money paid by mistake is not deemed to have been voluntarily paid and can be recovered back. It is not contended that the State did not receive $17.15 more franchise tax from claimant in 1928 than it was entitled to receive.

Claimant is therefore awarded the sum of $17.15.


text:
    (No. 1500
    Black Star Coal Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1930.

    Black Star Coal Company, pro se.
    Oscar E. Carlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

In its declaration claimant alleges that for the years 1924 to 1928, inclusive, it paid $7.50 more franchise tax each year than it was legally required to pay and that such payments were made by mistake, the mistake occurring in the computation of the tax. The State has filed a general demurrer to the declaration. The declaration is informal but we think it is sufficient in substance to sustain an .award and the demurrer, not being special, will be overruled.

That claimant paid the excess tax of $7.50 for the years alleged is not denied; neither is it denied that such payments were made by mistake. Money paid by mistake is not voluntarily paid and- can be recovered back by the party making the payment.

Claimant is therefore allowed an award of $37.50.


author: Mr. Chief Justice Clabity

text:
    (No. 1505
    Joseph Meaher, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1930.

    Chables T. Randolph, for claimant.
    Oscar E. Cablstbom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clabity

delivered the opinion of the court:

This cause coming on to be heard upon motion of claimant to dismiss the above entitled cause for the reason that the claim has been satisfied and paid, and the court being fully advised in the premises, and there being no reason why the case should not be dismissed, it is therefore considered by the court that the cause be, and the same is hereby dismissed.


text:
    (No. 1506
    Herman Frymire and Beulah Frymire, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1930.

    Chables T. Randolph, for claimant.
    Oscab E. Cablstbom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clabity

delivered the opinion of the court:

This cause coming on to be heard upon motion of claimant to dismiss the above entitled cause for the reason that the claim has been satisfied and paid, and the court being fully advised in the premises, and there being no reason why the case should not be dismissed, it is therefore considered by the court that the cause be, and the same is hereby dismissed.


text:
    (No. 1507
    Herman Frymire, Guardian of Mary Eloise Frymire, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1930.

    Charles T. Randolph, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This cause coming on to be heard upon motion of claimant to dismiss the above entitled cause for the reason that the claim has been satisfied and paid, and the court being fully advised in the premises, and there being no reason why the case should not be dismissed, it is therefore considered by the court that the cause be, and the same is hereby dismissed.


text:
    (No. 1513
    Henry Rickeim, and Mamie Rickeim, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1930.

      Motions to vacate previous orders denied, March 12, 1930.

    'Tom W. Smurr, for claimants.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This is a claim for $246.00 damages alleged to have been caused by the overflow of the Illinois and Michigan canal in the City of Marseilles. It is charged in the declaration that the overflow causing the alleged damage was the result of the negligence of the lock tender in charge of the lock and gates located near Chicago Street in Marseilles. The Attorney General has filed a special plea for the State averring that the portion of the canal involved in this claim is a part of the Illinois waterway. Claimants have demurred to this plea. The demurrer admits the facts set up in the plea to be true.

Section 2 of the Illinois Waterway Act permits the authorities charged with the construction of the Illinois waterivay to use and improve portions of the Illinois and Michigan canal as a part of the waterway. Such portions of the canal as they use in the construction of the waterway are under the jurisdiction of these authorities and subject to the provisions of the Waterway Act. (Hollenbeck et al v. State, opinion filed Nov. 6, 1929.)

Section 24 of the Waterway Act provides that all claims for damages to persons (except to employees) and all claims for damages to property, real or personal, shall be ascertained, determined and fixed by the department of the State government ip charge of the waterway and paid out of moneys which shall be provided for the payment of such claims. It is clearly manifest from these provisions of the statute that this court has no jurisdiction to pass upon claims for damages to property arising out .of the construction, maintenance or operation of the Illnois Waterway. (Hollenbeck et al. v State, supra.) If the portion of the canal in question in this action is a part of the Illinois Waterway, as averred in the. plea, then the court of claims has no jurisdiction of this case, and it should be dismissed. By demurring to the plea claimant admits that portion of the canal to be a part of the waterway. As the facts stated in the plea are a complete defense to ,the claim in this court, the demurrer should be overruled and the case dismissed.

Even if the portion of the canal causing the alleged damage'were not a part of the Illinois Waterway, the claim could not be allowed for the "reason" that separate section 3 of the Constitution prohibits the appropriation of, any money in aid of- canals. (See Hollenbeck et al. v. State, supra, for a full-discussion of this-question.)

The demurrer is overruled and the claim dismissed.

On March 12, 1930, upon motions to vacate the judgments overruling the demurrers to the pleas and dismissing said cases and for leave to file replications, the following additional opinion was filed:

Claimants in this case and in cases No. 1514 and No. 1515 have filed their motions to vacate the judgments overruling the demurrers to the pleas and dismissing said cases and for leave to file replications averring the portions of the Illinois and Michigan canal involved in the claims were not and are not a part of the Illinois Waterway.

We stated iii the last paragraph of the opinion overruling the demurrers and dismissing the cases that even if the portions of the canal causing the alleged damage were not a part of the Illinois Waterway the claims could not be allowed for the reason that separate section 3 of the Constitution prohibits the appropriation of any money in aid of canals, and referred claimants to the opinion in the case of Hollenbeck et al. v. Stale for a full discussion of that question. As no award could be allowed claimants even if their replications should be sustained, it would not avail them anything to permit them a hearing on that issue.

The motions are therefore denied.


text:
    Lloyd Highland, 1517; L. E. Wideman, 1518; Susie P. Highland, 1519; Henry Nevin, 1520; Charles J. McLaughlin, Marie McGrath, Genevieve Roth, Ann Meagher, Margaret Meagher, and Catherine McLaughlin, 1530; Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1930.

    Tom W. Smurr, for claimants.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

By stipulation of the parties these claims have been consolidated.

The declarations are all substantially the same. Each of them alleges the claim arises out of damages to growing crops, during the years 1926 and 1927 and subsequent thereto, such damage being caused by the diversion of water out of its. natural course upon and across the claimants’ land, and the destruction of the outlet of certain tile drains; and that such diversions of water and destruction of the outlets resulted from the acts of the defendant, through its servants, in constructing State Route No. 7. Bach declaration further alleges that in August, 1926, the servants of the defendant obstructed the flow of the water in a natural water course and blocked and filled the same by depositing therein trees and tree trunks, brush and dirt and other obstructions, thereby preventing the water from flowing in its natural course and causing it to flow upon and flood and submerge the crops of claimants and destroy the same. It is also charged in each declaration that the outlet of a certain tile drain was obstructed and the tile in the drain broken and damaged whereby the drainage of the land of claimant was impeded and obstructed and the land rendered less productive. Lloyd Highland claims $500.00 damages, L. B. Wideman $1,500.00, Susie P. Highland $1,500.00, Henry Nevin $1,000.00, and Charles J. McLaughlin, et al. $1,000.00.

These claims are based upon the theory that the State is liable for the torts of its officers, agents and employees. No government is liable for the malfeasance or misfeasance of its officers or agents in the absence of a statute expressly making it so liable. This principle of law is so well settled that citation of authorities is not deemed necessary. Claimants seem to entertain the view that the State is governed by the same rules and principles of law as individuals, cities and villages, and corporations created for profit, and have cited many authorities holding individuals, corporations, cities and villages liable for damages caused by the torts of the agents of such persons and municipalities; but those cases have no application to these claims. Every private person who, by his wrongful act, causes injury to another is liable to respond in damages for such injury; and a corporation is also liable for the damages caused by the wrongful conduct of its agents and servants. Cities and villages may also be held liable for the torts of their agents and servants in certain cases. But cities and villages are voluntary municipalities created by the action of their inhabitants. When the people of a given community by their action voluntarily organize that community into a city or village the municipality thus created becomes clothed with certain powers and burdened with certain obligations. It is not an involuntary municipality, such as towns and counties, created for governmental purposes. It has many rights and powers conferred upon it by law such as the right to improve its streets by special assesments or special taxation, the right to own and operate public utilities, and many others not enjoyed by involuntary municipalities. With these rights is coupled certain duties and obligations such as the duty to maintain its streets in a reasonably safe condition for travel and the liability to pay any damage caused by the neglect to do so. But neither the State, nor any subdivision of the State for governmental purposes, is liable for damages caused by the failure of any officer to keep the highways in a safe condition for travel or for any damages caused by the negligence of any officer in repairing or constructing any highway, unless there be a statute making the State, or such subdivision thereof, liable for such negligence. The person damaged by the negligence of such officer is not without remedy, however. The negligence is not the negligence of the State, or subdivision thereof, but of the individual performing the act causing the injury, and such individual is liable for any damage his wrongful act may have caused. If the contractor who constructed Route 7 did obstruct the natural flow of the water in a water course, as charged in these declarations, by placing trees, brush and other things therein, and thereby caused damage to the crops of claimants, and if he broke and destroyed their tile, he is liable for such damage as his acts caused, and claimants had a remedy against him for such damage. But his wrongful acts will not be imputed to the State in the absence of a statute making the State liable for them. The immunity of the State, however, does not relieve its agents from responsibility for their trespasses or torts upon the rights of citizens. (25 R. C. L., sec. 50, p. 413). These principles of law have been many times announced by this court and by our supreme court. (See Peterson v. State, No. 1126 and 1127; Theiler v. State, Nos. 1413, 1414 and 1415 consolidated; Braun v. State No. 1281; Tuttle v. State, 5 Ct. Cl. 3; Heiss v. State, 5 Ct. Cl. 298; and cases cited in those opinions).

It is urged by claimants that the constitution provides their property shall not be taken or damaged for public use without just compensation and they are therefore entitled to an award for their alleged damages. Claimants were not required to stand by and allow the agents of the State to damage their property without first having the just compensation for such damage ascertained in the manner provided by the statute. They could have enjoined the State officials and contractor from performing the alleged tortious acts until the damages occasioned thereby had been ascertained and paid. It is well settled that injunction is a proper remedy where public officers, under color of power or claim of right, are illegally attempting to take or injure the property or impair the rights of a citizen. (Lowery v. City of Pekin, 186 Ill. 387; Stiles v. State, No. 1380, and cases there cited.)

In the construction of the State bond issue roads the State acts in its governmental capacity — its sovereign capacity— and its acts are not subject to review by this or any other court without its consent. No statute has been enacted in Illinois making the State liable for the negligence of its officers, servants, agents or employees in the construction of these roads and, in the absence of such a statute, this court has no power to declare it liable for such negligence.

The awards are therefore denied and the claims dismissed.


text:
    (No. 1523
    Erwin J. Kershaw, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 15, 1930.

      Rehearing denied March 12, 1930.

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

delivered the opinion of the court:

This claim is for $4,160.00 damages alleged to have been caused by the wrecking of a Lincoln Paige aeroplane belonging to claimant on April 5, 1929, at the Municipal Airport of Chicago in a collision with a Douglas aeroplane being operated by Lieutenant Reginald Kuhn of the 108 Observation Squadron of the Illinois National Guard. It is charged in the declaration that the collision and resultant injury to claimant’s plane was caused by the negligence and carelessness of Lieutenant Kuhn in the operation of the plane he was piloting, and that at the time of the collision Kuhn was an officer and agent of the Illinois National Guard.

The Illinois National Guard is a part of the State government, and this action is based on the theory that its officers are agents of the State and the State is liable for the- damages caused by the careless and negligent conduct of its agents. It is an almost universal rule that the State is not liable for the torts of its officers and agents in the absence of a statute making it so liable. If an officer of the National Guard causes damage to a citizen, by his wrongful act the wrongful act is the individual act of the officer and not of the State. (Haye et al. v. The State, 5 Ct. Cl. 359; Joos v. Ill. Nat’l Guard, 257 Ill. 138; Hollenbeck v. Winnebago Co., 95 Ill. 148; Cooney v. Town of Hartland, 95 Ill. 516). The injured person is not without remedy, however. He can have his action against the person causing the injury for the damage suffered thereby.

There being no liability on the part of the State for the damages claimed, the award is denied and the case dismissed.

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

The claimant Erwin J. Kershaw by his attorney, filed his petition for rehearing on the 7th day of February, 1930, and the court heard oral argument of the claimant’s attorney in open court on March 12, 1930.

The claimant in his petition for rehearing and also the oral argument did not present any matter that was not duly considered by this court in the original opinion in this case.

The petition for rehearing is denied.


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    (No. 1549
    Albert W. Turner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1930.

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

delivered the opinion of the court:

It appears that claimant was working for the Highway Department for the State of Illinois on the 27th day of April, 1929, and in the course of his employment while being transported from his work on the truck of the Highway Department on State Highway No. 11 between East St. Louis and Carlinville, it appears that claimant was seriously injured on account of the driver who drove off the highway and in endeavoring to get back the truck skidded and the truck was thrown around and threw claimant off the truck. In falling he received a complete fracture of the skull.

There is no question raised as to the accident happening while in the course of employment by the defendant. It is claimed that claimant has not been able on account of such accident to do any labor; that he lost the sight of his left eye. He claims that he paid $1,087.60 for medical and hospital services of which the State has paid $476.10 and he is making claim for the balance, in accordance with the Workmen’s Compensation Act.

The court being fully advised in the premises is of the opinion that claimant is entitled to award in view of all the facts and circumstances in the case.

Therefore the court recommends that claimant be allowed the sum of $3,500.00.


author: Mr. Jtistice Thomas

text:
    (No. 1551
    Anna Pelka, Administratrix of the Estate of Andy Pelka, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1930.

    G. A. Hickman and Carl Choisseb, for claimant.
    Oscar E. Carlstrom, Attorney Genéral; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Jtistice Thomas

delivered the opinion of the court:

Anna Pelka as administratrix of the estate of Andy Pelka, deceased, asks an award against the State of $5,000.00 for the death of claimant’s intestate.

It is charged in the declaration that Andy Pelka was an inmate of the Anna State Hospital, an institution maintained by the State for the purpose of treating patients for mental diseases; that the officials of the hospital, on January 18, 1929, negligently and carelessly placed Pelka in a room with one Je'sse Windland, another inmate of the hospital, well known to be a desperate and dangerous man accustomed to attack other patients; and that Windland did then attack Pelka and beat and strangle him, thereby then and there causing his death.

The Anna State Hospital is one of the charitable institutions of the State maintained and conducted for the sole benefit of citizens of the State suffering from mental diseases. The institution is maintained and supported by funds derived solely from general taxes. In maintaining this and other like institutions the State is exercising a governmental function and rendering a gratuitous service to its unfortunate citizens which the public policy of the State has declared to be necessary for the general welfare. In the conduct of such institutions neither the State nor any of its agencies are liable to respond in damages for the negligent acts of any of its servants. (Parks v. Northwestern University, 218 Ill. 381; Burghardt v. State, 5 Ct. Cl. 221). If the purpose of the institution be charitable, if it is maintained solely for the benefit of the public, the agency maintaining and conducting it incurs no liability for the negligence of its officers, servants or employees, whether that agency be the State, a city, county or private corporation. (Tollefson v. City of Ottawa, 228 Ill. 134; Johnston v. City of Chicago, 258 Ill. 494; Hogan v. Chicago Lying-In Hospital, 335 Ill. 42). The rule exempting such institutions from liability for the negligence of employees is stated in 13 R C. L., at page 944, in the following language : “Strictly public institutions created, owned, and controlled by the state or its subdivisions, such as state asylums for the insane, city hospitals, reformatories, etc., are not liable for the negligence of their agents. The doctrine of re spondeat superior does- not apply. They are held to be governmental agencies brought into being to aid in the performance of the public duty of protecting society from the individual unfortunate or incompetent in mind, body, or morals, and the rules applicable to municipal corporations .and public officers generally are applied.” The author cites many cases in support of the rule, and it is in accord with the holdings of our own Supreme Court. The General Assembly has enacted no statute changing this rule of the common law, and in the absence of such a statute this court has no power to make awards for claims of this character.

The claims is therefore denied and the case dismissed.


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    (No. 1552
    Ellen Kell, Administratrix of the Estate of James T. Kell, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1930.

    L. P. Harris, for claimant.
    Oscar E. Carlstrom, Attorney General; Bov D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim brought by Ellen Kell as administratrix of the estate of-James T. Kell, deceased. It appearing from allegations of claimant that the said deceased was employed as an antomobile investigator for the State of Illinois; that while in the performance of his duties on State Highway Boute No. 2 North of DuQuoin, Illinois, and while passing an automobile the motorcycle on which he was riding collided with a telephone pole causing his left leg to be broken and internal injuries from which he died on July 26th, 1929, the accident happening on July 24th, 1929. There appears to be no contradiction that said Kell sustained the injuries complained of while in the employ of the.State of Illinois and that his mother, the complaining administratrix was dependent upon him for support. Therefore the only question to be considered is the amount of an award. There appears to be no objection as to this contention on the part of the defendant and it would appear‘that the Workmen’s Compensation Act would prevail.

It is therefore recommended that complainant be allowed the sum of Three Thousand, Seven Hundred Fifty Dollars ($3,750.00).


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    (No. 1562
    James M. Brooks, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1930.

    James M. Brooks, pro se.
    Oscar E. Cablstrom, Attorney General; Boy D. Johnson, . Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears that claimant while in the act of performing his ■ duties as an investigator from the office of William J. Stratton, Secretary of State, in the enforcement of motor vehicle law, while pursuing a stolen car in the City of Chicago and in trying to avoid striking* a child he turned his motorcycle in the sidewalk and was thrown from it and as a result of such fall, he sustained injuries. It appears that claimant is asking for no compensation other than his doctor bills in the ■ sum of Thirty-three ($33.00) Dollars.

It would appear that this is a modest request in view of claims that have been filed herein and that the injuries complained of were suffered in the performance of his duties and that his physician’s bill should be allowed as requested.

It is therefore recommended by this court that claimant be allowed the sum of Thirty-three ($33.00) Dollars.


text:
    (No. 839
    Victor R. Emery, Jr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 28, 1930.

    Adsit, Thompson'& Herr, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

On September 9,1917, claimant was employed in the Game and Fish Division of the Department of Agriculture. On May 18, 1918, he took the examination for the position of warden. He passed the examination, was certified, and in September, 1919, was made Deputy Game.and Fish Warden at a salary of $125.00 per month under the classified civil service of the State. On January 23, 1923, the Director of the Department of Agriculture sent him a letter notifying him that his services would not be further needed and his name would be dropped from the payroll on February first. After receiving this letter claimant continued to perform his duties as such Deputy Game and Fish Warden, making reports of his activities regularly to the Division of Game and Fish until August 1, 1924. These reports were received and accepted by the Division of Game and Fish. The State also furnished claimant an automobile for use in the performance of his duties until in July, 1923.

The record shows claimant never resigned his position, was never demoted or removed, and that no charges were ever preferred against him. It also shows that he was paid no salary after February 1,1923, and that he was not reimbursed for his expenses incurred.

Claimant was under the classified civil service of the State and could not be legally discharged from such service except in accordance with the provisions of the State Civil Service Act. Section 12 of that Act provides no employee in the classified civil service of the State shall be removed by the appointing officer, except for just cause, and that a statement of the cause of such removal shall be made in writing and signed by the appointing officer which statement shall be in duplicate and one copy thereof be delivered to the employee and the other filed in the office of the Civil Service Commission. These provisions of the law are mandatory and must be complied with, otherwise any appointing officer can render the law nugatory. (The People v. Coffin, 282 Ill. 599). Those provisions of the law were not complied with in the case of claimant and his attempted removal was void, and he was entitled to be paid his salary and expenses so long as he retained his position. (The People v. Stevenson, 272 Ill. 215). Claimant remained in the service of the State for 18 months after his attempted removal. His salary was $125.00 per month and he incurred expenses amounting to $87.54, no part of Avhich he has been paid. He is, therefore, allowed an award of $2,337.54.


author: Mr. Chibe Justice Clarity

text:
    Wealthy Fries, 1256; John J. Fries, 1257, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 28, 1930.

    Truman A. Snell, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagle-ton, Assistant Attorney General, for respondent.
   Mr. Chibe Justice Clarity

delivered the opinion of the court:

It appears that claimants in suits No. 1256 and 1257 were driving in a southerly direction in an automobile on Section 23, hard road Route No. 16 in Macoupin County, Illinois.

It is alleged that a gap of considerable length where said Route No. 16 crosses at the one track of the Illinois Traction System and three tracks of the Wabash Railroad Company was unfinished; that on the 12th day of June, 1927, while the claimants were driving in their automobile as aforesaid, they suffered an accident and it is claimed that both claimant and wife were injured and that the automobile, property of claimants was damaged in the neighborhood of $1,000.00.

It does appear from the record in this case that this is a dangerous spot and that proper warning signs were not displayed.

The Attorney General comes and defends and states that a sign directing people going from Mt. Olive to Staunton, between which places the accident occurred, was on display and that this sign was not taken down. until after the accident; that this sign warned travelers to go on the detour ; that claimants did not follow the directions on said sign.

It is however claimed and we fail to find any contradiction of the records to the contrary that the stretch of road on which the accident complained of happened, had not been taken over by the State of Illinois and that the jurisdiction over said road or control of said road rested with the local authorities and therefore the State had not assumed any liability that might be attached. The following statute has been drawn to the attention of this court by the Attorney General’s office and is in words and figures as follows:

“That the public highways upon which said roads are being constructed shall, during the construction period and continuously thereafter, be under the jurisdiction and control of said Department of Public Works and Buildings, but the duty of maintaining said highways shall rest on the local authorities until said construction work has been completed. After a road in said State-wide system has been completed and taken over by said Department of Public Works and Buildings said road shall thereafter be maintained by the state” * " * (Paragraph 277, Chapter 121, page 2409, Smith-Hurd’s Illinois Revised Statutes, 1927). ■

The court is of the opinion that the records disclose a lack of reasonable diligence on the part-of the claimants and their failure to observe the detour sign and of course that question would be an issue in the event that the State of Illinois had taken over this road, but in accordance with a previous ruling of this court, the State of Illinois is not bound as a matter of law until the road would be taken over by the State. In many instances it is well known that local authorities in their desire to permit early traffic let down barriers and permit traffic in order to meet the demand of the public. This cannot be considered good practice and of course the State of Illinois is not supposed to open its arms to any proposition until they assume complete control and this court assumes that the Legislature had in mind when they passed the above enactment, to avoid-1 responsibility before the State duly accepted and assumed control of any road project.

It is the opinion of the court that liability on the part of the State of Illinois should be safeguarded in a manner equal to that of private corporations. The court regrets the accident and the injuries sustained" by claimants but are of the opinion that legal responsibility for the accident in question cannot be placed upon the State of Illinois in view of the Act of legislature above cited.

Therefore this claim is disallowed.


text:
    (No. 1509
    Tyra Harrison, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 28, 1930.

    Fred H. Snyder, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant asks an award of $2,000.00 to compensate him for an alleged injury received March 22, 1929, while dragging the dirt shoulders of State Boute No. 9 near Canton in Fulton County. His contention is that he is entitled to compensation from the State under the provisions of the "Workmen’s Compensation Act.

Claimant testified that on March 22, 1929, while he was riding a road drag being pulled by a truck driven by Mitchell Libby, he was thrown against the lever of the drag which caused him severe pain. He said Libby was driving at the rate of 10 miles per hour at the time and ran over a steel plate throwing him against the lever of the drag, and that he told Libby of his injury and asked him to drive more slowly; that he ate supper at Libby’s that evening and threw it up and when he told Libby about it Libby only laughed and called him a tenderfoot. He also testified that the next day he told Walter Nixon that he got hurt the day before. On the day following his alleged injury he hauled dirt in the forenoon and dragged the road in the afternoon. His testimony is contradicted by both Libby and Nixon. Libby testified that he did not drive over 2 or 3 miles an hour while dragging the road and that claimant never told him he was injured and did not complain of being hurt in any way, and that he did not know he threw up his supper. He also said he remembered driving over a steel plate but that the plate was smooth and it did not jerk the drag and throw claimant against the lever. Nixon testified that claimant never complained to him of any injury received while working for the State. Dr. Nelson testified that on March 23, 1929, claimant came to his office complaining of a pain in his left side and on examination he found a hernia and advised him to get a truss and wear it. The doctor stated that the hernia appeared to be of recent origin but he could not state positively that it was.

It hardly seems probable that claimant could have been injured in the manner he says he was and as seriously as he claims to have been and Mr. Libby not have known it. The burden of proof is on claimant to show by a preponderance of the evidence that his injury was caused at the time and in the manner he alleged. (Green v. Industrial Com., 337 Ill. 514; Berry v. Industrial Com., 335 Ill. 374.) This we do not think he ha^ done.

The Workmen’s Compensation Act applies to the State only when the State is engaged in some of the enterprises declared by section 3 of that Act to be extra-hazardous. An employer may be engaged in more than one enterprise,— some under the Workmen’s Compensation Act because extra-hazardous and others not. (Peterson v. Industrial Com., 315 Ill. 199.) And if an employee is injured while working in a business or enterprise not made extra-hazardous by that Act, the provisions of the Act will not apply.

At the time claimant is alleged to have received his injury he was engaged in dragging the dirt shoulders of a State road. If that was an extra-hazardous occupation, then the State is liable, otherwise it is not. A road may be a “structure” but work on all structures is not necessarily extra-hazardous. And unless the work is extra-hazardous, it does not come within the provisions of the Workmen’s Compensation Act. In Village of Chapin v. Industrial Com., 336 Ill. 461, and McLaughlin v. Industrial Board, 281 Ill. 100, the Supreme Court held that the building and maintenance of a dirt road is not a dangerous or extra-hazardous occupation and therefore not within the terms of the Workmen’s Compensation Act. And in Brennan v. Industrial Com., 289 Ill. 49, that court held that an employee who was injured while engaged in pulling a float over the soft concrete of a State aid road that was being paved with concrete and brick was not engaged in an extra-hazardous occupation within the meaning of the Workmen’s Compensation Act, and set aside an award made him by the Industrial Commission.

Under the rulés announced in these cases it is clear claimant is not entitled to compensation and his claim is therefore denied and the case dismissed.


text:
    (No. 1511
    John Grootens, Albert Beck, and Frances Beck, His Wife, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1930.

      Rehearing denied May 28, 1930.

    Eugene W. Kreitner, for claimants.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is for $12,000.00 damages alleged to have been caused to the property of claimants by the construction of State Route No. 13. The property is located in Park Place Addition to the City of Carbondale and is adjacent to Route 13. The declaration charges that the State of Illinois. through its agents and servants, improperly, negligently and unlawfully constructed said highway, in this, that it failed to provide the necessary and adequate culverts, and other adequate drains, wherewith to adequately drain the water from the property.

Route No. 13 is one of the public highways of the State constructed and maintained for the use of the general public. In the construction of public highways the State acts in its governmental capacity, and in the performance of such governmental function it is not liable to respond in damages for the negligent acts of its servants. (Parks v. Northwestern University, 218 Ill. 381; Kinnare v. City of Chicago, 171 Ill. 332.)

Claimants have cited a number of cases in their brief holding that drainage and sanitary districts, cities and villages and corporations organized for profit are liable for damages caused by the negligent acts of their servants and agents. There is no question but that the rule of respondeat superior applies to such corporations in many instances. Drainage and sanitary districts, cities and villages are voluntary corporations organized at the instance of the people affected thereby. When the people of any given territory organize such territory into a drainage or sanitary district, a city or village, the municipality thus created becomes vested with certain rights and powers and burdened with certain duties ánd obligations. Among these is the right to take or damage private property for the benefit of the municipality and the obligation to compensate the owner of the property for such taking or damage. These obligations are not thrust upon such municipalities' nolens volens,- — they are voluntarily assumed, — and having been so assumed the municipality is liable for the consequences that legally follow. (Johnston v. City of Chicago, 258 Ill. 494.) But this rule does not apply to -the State, nor to any governmental subdivision of the State for governmental purposes. In Parks v. Northwestern University, supra, at page 383, the Supreme Court says: “Counties and towns under township organization are created as agencies of the State for the purpose of exercising locally certain governmental functions, and in the performance of duties of that character neither the State nor any of its agencies are liable to respond in damages for the negligent acts of any of its servants.” To apply the rule of respondeat superior to the State, as claimants contend we should, would make the State responsible for any wrongful conduct or negligent act of its many officers and employees that might result in damage to a citizen. We cannot think the Legislature intended such a drastic change- in the law when it created this court and gave it power to hear and determine all legal and equitable claims against the State.

The immunity of the State from liability for the negligent or wrongful acts of its agents does not relieve the agents from responsibility. (25 R. C. L., sec. 50, p. 413; Peterson v. State, Nos. 1126 and 1127; Theiler v. State, Nos. 1413, 1414 and 1415 Braun v. State, No. 1281; Tuttle v. State, 5 Ct. Cl. 3; Heiss v. State, 5 Ct. Cl. 298; and cases cited in those opinions.)

If the agents of the State, by their negligent, wrongful and unlawful conduct have damaged the property of claimants they are liable to claimants for such damage, and claimants are not without remedy. Claimants were not required to permit the contractor or other agents of the State to damage their property in the construction of the road until such damage had been ascertained and paid for. - They could have enjoined them from performing the alleged wrongful acts, until the' damage had been ascertained as provided by law. It is well settled that injunction is a proper remedy where public officers, under color of power or claim of right, are illegally attempting to take or injure the property or impair the rights of a citizen. (Lowery v. City of Pekin, 186 Ill. 387 ; Stiles v. State, No. 1380 and cases therein cited.)

No statute has been passed making the State liable for damages caused by the negligence of its agents in constructing State highways and, in the absence of such a law, this court has no power to declare it so liable.

The award is denied and the claim dismissed.

On May 28, 1930, upon petition for rehearing, the following additional opinion was filed:

Claimant has filed a petition for rehearing in this case. All the point's urged in the petition were considered and decided by the court at the hearing, and the opinion is in accord with a long line of decisions of this court in similar cases.

The rehearing' is therefore denied.


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    (No. 1525
    Mid-Continent Construction Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 28, 1930.

    Busby, Weber, Milder & Donovan, for claimant.
    Oscar E. Carlstrom, Attorney General; Boy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This cause coming on to be heard upon motion of claimant filed on May 23rd, 1930, to dismiss the above entitled cause without prejudice and the court being fully advised in the premises and it appearing there is no reason why said cause should not be dismissed it is therefore considered by the court that said cause be and the same is hereby dismissed without prejudice upon the motion of the claimant.


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    (No. 1536
    Charles F. Jennings, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1930.

      Rehearing denied May 28, 1930.

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

delivered the opinion of the court:

This is a claim filed to recover for damages sustained by claimant while driving a Chevrolet truck on Boute No. 4 of the St. Louis-Springfield hard road at a point in Madison County; that he was run into by a truck belonging to the State of Illinois and then driven by Frank Hill an employee of the State. A stipulation is herewith presented in evidence to sustain the facts alleged. It appears that there has been no objection as to the contention of the claimant as to the injuries sustained, it appearing from the evidence that the accident was due to the negligence of Hill the driver and that he was under the influence of liquor or other stimulant and as a result of the accident the claimant’s truck was demolished and that claimant was very seriously and grievously injured.

This court understands that as a matter of sympathy there can be no question as to the unhappy result of this accident to claimant. However, it appears to the court that there can be no contention as to the fact that the State is not liable for the torts or negligence of its officers, agents, etc. However, the State has been endeavoring to take care of its employees and others injured as a matter of good conscience. In this case there is a feature that impresses the court very seriously and that is the fact according to the stipulation filed in which there appears a communication by C. M. Slaymaker, District Engineer, that Hill had no orders to be on this road on this date and in fact had received orders to perform certain work on a patrol south of Edwardsville which he disregarded.

The point that comes to the court, is that even if the State was responsible for the acts of its agents or servants that wherein an agent or servant disregarded the instructions of his superior, and was on a mission entirely beyond the line of duty as delegated to him by his superiors and an accident occurred, that it would be hard to conceive a legal liability. If the accident occurred through the fault of the driver of this truck while acting in line of duty under the directions of his superior, then another question would arise as to the responsibility of the defendant, the State of Hlinois. It could not be urged that if this accident occurred through the negligence of this driver at a time of day or night outside of the hours required of him in the line of duty that the defendant would be liable and this court cannot conceive.that the State has the power to extend such obligation to the act of an agent or servant outside the line of duty or outside the course of employment.

To announce a different rule would extend the obligation of the defendant, the State of Illinois much further than was contemplated in the act creating this court and would impose upon the State of Illinois a burden that would be indefinite, vague .and uncertain.

And while the court regrets this unfortunate accident, yet it feels that it should not extend an obligation upon the State in which an employee could create a liability upon the State while not in the line of duty or in the course of regular employment under the direction of their superior. ■

Therefore it is recommended that this claim be disallowed.

On May 28, 1930, upon petition for rehearing, the following additional opinion was filed:

It appears that no additional reason has been brought to • the attention of this court for further consideration of this claim.

Therefore petition for rehearing is denied.


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    (No. 1554
    Frank Gray, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 28, 1930.

    Runyard & Behanna, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant was in the employment of the State as a common workman and was paid sixty cents per hour. His average weekly wage while working for the State was about thirty dollars. On April 24, 1929, while engaged in work on a bridge of State Route No. 42 near Zion City, he suffered an injury to his left hand which necessitated the amputation of the left index finger. The injury arose out of and in the course of his employment- and, under the provisions of the Workmen’s Compensation Act, lie is entitled to compensation from the State. The State paid his hospital and surgical bills and kept him on the payroll during the time he was unable to work. Section 8 of the Workmen’s Compensation Act provides an employee shall receive fifty per cent of his average weekly wage for the loss of an index finger during forty weeks. Claimant is therefore entitled to $600.00 and that sum is awarded him.


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    (No. 1567
    Minnie Mason, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 28, 1930.

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

delivered the opinion of the court:

It appears that claimant was an employee of the State Hospital for the Insane at Bartonville. She claims the loss of a finger called the index finger and the loss of the second finger of the right hand which injury she claims -she sustained while employed in the performance of her duties and in the exercise of ordinary care for her personal safety. There seems to be but little question as to the facts alleged and the only question that remains for the court to consider is the amount of the award that should be allowed.

The Attorney General comes and makes defense and admits that if there should be any allowance made the sum of Four Hundred and Twenty-five ($425.00) Dollars, would be proper taking into consideration medical services in the matter. This court is of the opinion that the amount suggested would be a fair and just allowance for the claimant. •

Therefore the court recommends that the sum of Four Hundred and Twenty-five ($425.00) Dollars, be allowed the. claimant.


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    Individual Towel & Cabinet Service Co., 1547; The Western Union Telegraph Company, 1556; Illinois Bell Telephone Company, 1558; Burr Vack Company, 1564, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 18, 1930.

    Jos. M. Collner, Secy., Individual Towel & Cabinet Service Co.; Robert Whitblaw, The Western Union Telegraph Company; Ben B. Boynton, Illinois Bell Telephone Company; Frank H. Repetto, Burr Yack Company, for claimants.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

As these claims are all for services and supplies alleged to have been furnished to the State Athletic Commission and not paid for because the appropriation for the expenses of the commission had been exhausted, we have consolidated them for decision.

The claim of the Illinois Bell Telephone Company is for $284.72 for telephone services rendered the commission prior to June 26, 1929; the claim of the Western Union Telegraph Company is for $28.89 for telegraph services rendered the commission for the months of May and June, 1929; the claim of the Burr Yack Company is for $50.00 for supplies furnished the commission during the months of April and May,, 1929; and the claim of the Individual Towel and Cabinet Service Company is for $7.70 for towels furnished the commission during the months of May and June, 1929.

No evidence has been offered by claimants in support of their claims. There are copies of letters written the Attorney General by the secretary of the commission in which he states the bills of claimants are correct and were not paid because the appropriation had been exhausted.. This does not take the place of evidence. No officer or agent of the State can admit away the rights and interests of the State, and especially is this true where the officer or agent attempting to do so is the officer or agent for whom the services were rendered or the materials furnished by claimant. To recognize such practice might lead to grave injustice, and is contrary to public policy. (Lewson v. State, 5 Ct. Cl. 80.)

Section 18 of article 4 of the Constitution requires the General Assembly to provide for all the appropriations necessary for the ordinary and contingent expenses of the government. Under this provision of the constitution the General Assembly determines what is a reasonable and proper amount to be expended by each department of the State government for the ensuing two years and makes such appropriation as it deems proper for each department to expend within that period. In the act providing for the ordinary and contingent expenses of certain departments of the State government, approved June 30th, 1927, the General Assembly appropriated to the State' Athletic Commission the sum of $120,700.00, of which $15,000.00 was for office expenses, (Session Laws of 1927, p. 172), and the commission had no right of authority to incur any expenses beyond the amount appropriated to it for that purpose. Section 30 of the act in relation to State finance provides that no officer, institution, department, board of commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in any amount in excess of the amount of money appropriated. And section 208 of division 1 of the Criminal Code provides that every person holding* any public office (whether State, county or municipal), trust or employment who shall be guilty of contracting directly or indirectly, for the expenditure of a greater sum or amount of money than may have been, at the time of making the contracts, appropriated or set apart by law or authorized by law to be contracted for or expended upon the subject matter of the contracts, shall be fined not exceeding $10,000.00, and may be removed from his office, trust or employment. These provisions of the law are clear, and under them the commission had no power to contract the debts for which claimants are asking awards. (Fergus v. Brady, 277 Ill. 272; Whittemore v. The People, 227 Ill. 453.) • It is true the claims are for small amounts, but that is of no consequence. If a department of the State government can contract for $50.00 worth of supplies in excess of the sum appropriated to it for supplies it can contract for any amount it may see fit. To tolerate such practice not only ignores the plain provisions of the law but opens the way for all State officers, departments, boards - and commissions to disregard the will o'f the General Assembly with reference to the amount of money they can expend and substitute their own in its place. (Lewson v. State, supra.)

The State Athletic Commission being without power or authority to contract for the services and supplies furnished it by claimants after the appropriation for its expenses had been exhausted the contracts are void and no awards can be made for their payment. The claims are, therefore, denied and the cases dismissed.


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    (No. 1586
    Dudley E. Perry, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 18, 1930.

    O. C. Smith, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim brought by the reason of the fact that claimant being a corporal in Co. L, 130th Inf., Illinois National Guard, and while acting in that capacity on or about the 30th day of June, 1929, he was confined in a hospital on account of tuberculosis alleged to be contracted in line of duty.

It appears that Hon. Carlos E. Black, the Adjutant General, Springfield, Illinois, was requested by the Attorney General’s Office for a report as to the correctness of the facts set forth by claimant. It appears that General Black reported that according to' his understanding that the claim was made under the Military and Naval Code and for a period of 323 days which would amount to $686.37%. It appears further that the attorney for claimant reported that this settlement would be satisfactory.

And it appearing further that the Attorney General would recommend the allowance of said sum. Therefore this court recommends that claimant be allowed the sum of $686.37.


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    (No. 775
    Oscar Heineman Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

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

delivered the opinion of the court:

Now on this 9th day of September, A. D. 1930, being one of - the regular days of the September session of this court, comes Oscar E. Carlstrom, Attorney General of the State of Illinois, and moves the dismissal of this case as being controlled by the decisions of this court heretofore rendered in the cases of Moline Plow Company v. The State of Illinois, and George P. Ide & Company, Inc. v. The State of Illinois,

And it appearing to the court that the attorney for the claimant, herein consents to such a motion and to such dismissal as being controlled by said cases, it is therefore ordered, adjudged and decreed that the case be dismissed and the award disallowed.


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    (No. 1211
    Delaval Separator Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

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

delivered the opinion of the court:

Now on this 9th day of September, A. D. 1930, being one of the regular days of the September session of this court, comes Oscar E. Carlstrom, Attorney General of the State of Illinois, and moves the dismissal of this case as being controlled by the decisions of this court heretofore rendered in the cases of Moline Plow Company v. The State of Illinois, and George P. Ide & Company, Inc. v. The State of Illinois.

And it appearing to the court that the attorney for the claimant herein consents to such a motion and to such dismissal as being controlled by said cases, it is therefore ordered, adjudged and decreed that the case be dismissed and the award disallowed.


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    (No. 1232
    American Steel Foundries, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    Pam & Hurd, for Claimant.
    Oscar E. Carrlstrom, Attorney General; David J. Kadyk, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now on this 9th day of September, A. D. 1930, being one of the regular days of the September session of this court, comes Oscar E. Carlstrom, Attorney General of the State of Illinois, and moves the dismissal of this case as being controlled by the decisions of this court heretofore rendered in the cases of Moline Plow Company v. The State of Illinois, and George P. Ide & Company, Inc., v. The State of Illinois.

And it appearing to the court that the attorney for the claimant herein consents to such a motion and to such dismissal as being controlled by said cases, it is therefore ordered, adjudged and decreed that the case be dismissed and the award disallowed.


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    (No. 1243
    Hydraulic-Press Brick Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    Mac Chesney, Evans & Robinson, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyic, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now on this 9th day of September, A. D. 1930, being one of the regular days of the September session of this court, comes Oscar E. Carlstrom, Attorney General of the State of Illinois, and moves the dismissal of this case as being controlled by the decisions of this court heretofore rendered in the cases of Moline Plow Company v. The State of Illinois, and George P. Ide & Company, Inc., v. The State of Illinois.

And it appearing to the court that the attorney for the claimant herein consents to such a motion and to such dismissal as being controlled by sáid cases, it is therefore ordered, adjudged and decreed that the case be dismissed and the award disallowed.


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    (No. 1342
    Champlin Refining Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1930.

    Shurtlbff & Niehaus, for claimant.
    Oscar E. Carlstrom, Attorney General; David J. Kadyic, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

Now on this 9th day of September, A. D. 1930, being one of the regular days of the September session of this court, comes Oscar E. Carlstrom, Attorney General of the State of Illinois, and moves the dismissal of this case as being controlled by the decisions of this court heretofore rendered in the cases of Moline Plow Company v. The State of Illinois, and George P. lde & Company, Inc., v. The State of Illinois.

And it appearing to the court that the attorney for the claimant herein consents to such a motion and to such dismissal as being controlled by said cases, it is therefore ordered, adjudged and decreed that the case be dismissed and the award disallowed.