author: Mb. Chibe Justice Hollerich

text:
    (No. 1788
    W. Jeff Horney and Frances Parke Horney, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1937.

    Schlagenhauf & Schlagenhauf, for claimants.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Chibe Justice Hollerich

delivered the opinion of the court:

During the year 1924 the respondent constructed a hard-surfaced road known as S. B. I. Route No. 36, which extended in a northerly and southerly direction through Hancock County. At the time of the construction of such road, W. Jeff Horney was the owner of a tract of land containing 153 acres, more or less, situated on the west side of said roadway, just north of the south line of said Hancock County. On April 16th, 1929 said W. Jeff Horney conveyed said premises to the co-claimant, Frances Parke Horney, who now owns the same. Since the filing of the complaint herein, W. Jeff Horney died. His death has been suggested of record, and the cause proceeds with Frances Parke Horney as the sole claimant.

The property in question is improved with the usual farm buildings, and adjoins the west line of said roadway for a distance of approximately 210 rods. The land is low and level, and is not tile-drained. The natural drainage of claimant’s land is to the north and east, and ultimately into a large drainage ditch 6,682 feet north of the south county line.

The highway in question has been maintained as a public highway for many years, first as an ordinary public highway, then-as a State Aid Road, and finally as a hard-surfaced road. Prior to the construction of the hard-surfaced road, there were two right-angled jogs in the road at the southeast corner of the Horney land, but in constructing the hard road, a reverse curve was made at that point, and the jogs thereby eliminated. The crown elevation of the hard-surfaced roadway is substantially the same as in the previous roadway. There were four culverts with earth bottoms under the old roadway, and when such roadway was hard-surfaced, such culverts were replaced by new culverts of substantially the same size, placed in substantially the same locations, and with substantially the same elevations, but with concrete bottoms.

Prior to the construction of the hard-surfaced roadway, there was a small ditch along the west side of the roadway, and a larger ditch on the east side of such roadway to provide for surface drainage.

Claimant contends that by reason of the making of the reverse curve at the southeast comer of her land to replace two right-angled jogs, the roadway was moved to the east, and thereby encroached on the large ditch on the east side of the road; whereby such ditch was partially filled and narrowed, and its carrying capacity materially reduced; that the new culverts have concrete bottoms, which tend to hinder the flow of water through the same; that as the result of these changes, the water does not run off her land as quickly as it previously did, whereby she has sustained damages. The damage claimed in the complaint and Bill of Particulars attached thereto is for loss of crops during the period of five years prior to the filing of the complaint herein, to wit, July 6th, 1931.

In claimant’s original Brief and Argument, as well as in the Reply Brief, the right of recovery is based on the provisions of Section 13 of Article 2 of the Constitution of 1870, which section provides that private property shall not be taken or damaged for public use without just compensation.

Counsel for respondent contends that the State, in the construction and maintenance of its highways, is engaged in a governmental function, and is not liable for the wrongs, conduct or negligence of its officers or agents.

If the contention made on behalf of the respondent is correct, it is decisive of the case, and the complaint will have to be dismissed.

If, on the other hand, such contention is not correct, it will be necessary to determine whether, under the aforementioned constitutional provision, the State is liable for the taking or damaging of private property for a public use, and if so, the nature and extent of such liability.

The contentions of counsel, both for claimant and for respondent, have been considered by our Supreme and Appellate Courts in a number of recent cases.

In the case of Roe vs. County of Cook, 358 Ill. 568, plaintiff was the owner of certain unimproved real estate in the village of Homewood, adjoining the Dixie Highway. Defendant constructed a subway under said highway in such manner that the eastern entrance thereto was on the plaintiff’s property, and access to and from such property was cut off. Plaintiff in that case contended, as does the claimant here, that his property was taken and damaged for public use without compensation, in violation of the Constitution of this State.

In affirming a judgment in favor of the plaintiff, the court said:

“Section 13 of Article 2 of the Constitution, principally relied upon in support of the judgment, is as follows: Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law,” etc. It is contended by plaintiff in error that the Constitution does not point out a remedy and that no express remedy is afforded by statute. From this it is argued that the parties damaged are left to the common law for relief, and that no liability exists at common law against an involuntary municipal corporation (such as the county of Cook) to respond in damages for a tort, in the absence of a statute creating such a liability. (Board of Trustees of Odell vs. Schroeder, 58 Ill. 353; County of Cook vs. City of Chicago, 311 id. 234.) On the other hand, the defendants in error argue that the constitutional provisions above quoted are self-executing, and that a county may not take or damage the property of an individual for public use without eminent domain proceedings and without compensation and then escape liability for its act by saying that it cannot be sued. We are impressed with the justice and soundness of the latter view. The constitutional right of all property owners to compensation when their property has been damaged or taken for public use is one of the most salient provisions of our bill of rights. * * *
“When the Constitution forbids the taking or damaging of private property without just compensation and points out no remedy, and no statute affords one, for the invasion of the right of property thus secured, the common law, which affords a remedy for every wrong, will furnish the appropriate action for the redress of such grievance. 12 Corpus Juris, 732.
“We now turn to a consideration of the form of action in this case to ascertain whether the county of Cook is exempted from liability at common law because it is an involuntary municipal corporation. The liability of a county to respond in an, action at law for damages resulting to an abutting property owner no part of whose land was physically taken in an eminent domain proceeding was directly involved in the County of Mercer vs. Wolff, 237 Ill. 74, where the cross-petition was stricken and petitioner “remitted to his action at law for his damages”. The same doctrine was approved in the more recent case of Illinois Power and Light Corp. vs. Talbott, 321 Ill. 538, where it was said: “The Constitution, in prohibiting the taking or damaging of private property for public use without just compensation, recognizes the right of the owner of property damaged by a public work to recover the amount of such damages. This right may be asserted by the owner as a plaintiff in an action at law where none of his property is actually taken, or as a defendant to an eminent domain proceeding for the condemnation of property actually taken. (County of Mercer vs. Wolff, 237 Ill. 74.) In either case the right to the damages is the same, and its basis is the constitutional prohibition mentioned. * * *”
“The constitutional provision itself, without remedial legislation, is basic law, which not only confers a right but presupposes a remedy. Standing alone, Section 13 is self-executing and forms the basis for recovery at common law by an action on the case. This is the rule announced in the two Illinois cases last cited, and is also the view taken, under the same or similar constitutional provisions, in Pennsylvania, California, Georgia, Alabama, Nebraska, and Colorado.” * * *
“Counties may sue and be sued in Illinois, * * * and while they may not be held liable for damages in tort actions, where the doctrine of respondeat superior must be invoked, they are nevertheless liable for the value of property appropriated to their own use and for damages done to abutting property by reason of public improvements made in pursuance of their corporate powers.”

The Roe case was thereafter cited with approval in the case of People vs. Kelly, 361 Ill. 54.

In the case of Holm vs. County of Cook, 283 Ill. App. 190, plaintiffs brought an action of trespass to recover damages for injuries to their lands and the destruction of their crops -by sewage from Oak Forest Infirmary, a public institution owned and maintained by the defendant. The declaration alleged that the plaintiff was the owner of the premises in question for five years preceding the commencement of the said proceeding; that Oak Forest Infirmary was maintained by the defendant on a tract of land near the premises of the plaintiff; that said infirmary had accommodations for 6,000 inmates; that during all of the time complained of, the defendant allowed noxious sewage from such institution to flow in great volume upon the land of the plaintiff, whereby the growing crops were destroyed and whereby the plaintiff’s premises were appropriated and damaged for a public purpose without the consent of the plaintiff, and without any compensation being paid therefor, contrary to the rights of the plaintiff as guaranteed by the Constitution of this State.

The defendant filed a plea of the general issue and a special plea to the effect that in the year 1915 the plaintiffs had sued the defendant in the same court in a plea of trespass on the case on promises for taking and using the same land mentioned and described in the declaration; that in said suit the plaintiffs recovered judgment against the defendant for the sum of $12,500.00 damages and costs of suit; and prayed judgment if the plaintiffs ought to have their aforesaid action.

The evidence showed that sewage from the defendant’s Institution overflowed a portion of the plaintiff’s farm, destroyed 20 acres of his yearly crop for the five years alleged, with resulting damage to the plaintiff of nearly twice the amount of the jury’s verdict.

The jury returned a vedict in favor of the plaintiff for the sum of $1,750.00. Thereafter, on motion of attorneys for defendant, the trial court entered judgment for the defendant and against the plaintiff, notwithstanding the verdict, based on the iormer judgment and the satisfaction thereof. An appeal was perfected to the Appellate Court, First District. In that case the Appellate Court said:

“Plaintiff contends that a former recovery in an action of trespass against the county is not a bar to his recovery for a second trespass.
“Defendant’s theory is “that, since it is liable in a tort action only when it has taken or damaged land, then when it has taken or damagedd land and paid for such appropriation, it thereby acquires an absolute right to continue to dominate the land for the same uses and purposes forever afterward.”
“Plaintiff urges that “it would be very disastrous and far-reaching if it were the law that a trespasser, by reason of his trespass upon the property of another, obtained a legal right or title or interest in the property of the owner by reason of his wrongful and unlawful act, and the aggrieved owner could not thereafter recover for any subsequent trespass.”
“It is sufficient answer to this argument to state that plaintiff predicates and he must predicate the county’s liability entirely and solely on the constitutional provision that, “Private property shall not be taken or damaged for public use without just compensation.” (Sec. 13, Art. 2, Constitution of the State of Illinois), which contemplates only one recovery for all past, present and future damages.
“Plaintiff’s argument as above set forth would possess merit and force if his former suit and the instant action were against a private individual or corporation and for damages caused by a temporary nuisance. However, his former action not only was brought under the above constitutional provision, but he alleged permanent injury”; etc.

In conclusion, the court said:

“The county’s liability for damaging private property for public use exists only under the Constitution and there can be only one recovery as has been shown. Since plaintiff has already recovered in his former action for the appropriation of the land involved in the instant case for the conduct of the sewage from the Infirmary across and through it, he is barred from another recovery for the continued use of the land for the same purpose.”

.The defendant in the cases cited was the County of Cook, but there can be no question but what the law as there laid down with reference to counties, applies with equal force and effect to the State.

The State being liable under the constitutional provision for the damaging of private property for public use, it becomes necessary to consider and determine the nature and extent of such liability, and the facts in this case with reference thereto.

The important facts in the case, from the standpoint of the legal principles here involved, are as follows:

The hard-surfaced highway in question was constructed during the year 1924. At the time of such construction the premises in question were owned by W. Jeff Horney. Thereafter, to wit, on April 16th, 1929, he conveyed said premises to the claimant Frances Parke Horney. On July 6th, 1931 complaint was filed herein jointly by W. Jeff Horney and Frances Parke Homey. Thereafter W. Jeff Horney died.

The complaint alleges damage to, or loss of crops during the period of five years prior to the filing of such complaint, but does not allege that the premises in question were permanently damaged. Evidence was produced on behalf of the claimant, in support of the averments of the complaint as to loss of crops, but no evidence was offered to show any permanent injury to the premises in question.

The evidence, however, shows beyond any doubt that the improvement of the highway in question was a permanent improvement. Furthermore, claimant bases her right of recovery on the aforementioned constitutional provision.

Claimant apparently takes the position that the highway in question as now constructed, is in the nature of a-continuing nuisance or trespass, and that therefore she may maintain successive actions for damages, and recover in each case the damages sustained since the commencement of the preceding action, provided not more than five years have intervened.

Such, however, is not the law. The question has been before the courts of this State in many cases, and there are numerous decisions of our Supreme Court to the effect that where private property. has been damaged for public use, and the owner seeks compensation for such damage pursuant to the aforementioned constitutional provision, there can be but one recovery for the damages sustained, and such recovery includes all damages past, present and future.

In the case of Chicago & E. I. Ry. Co. vs. Loeb, 118 Ill. 203, the plaintiff sought to recover damages claimed to have been sustained by the throwing of smoke, cinders and ashes upon his premises, in the operation of defendant’s railroad. In that case the court said:

“Before adoption of the latter Constitution (1870) where there was land taken for public use, there was provision for compensation. But where there was other disconnected land not touched by the improvement, but merely damaged, as complained of in this case, no compensation was provided. To meet this want the clause of the Constitution restrictive of the exercise of the power of eminent domain provides that private property shall not be taken or damaged for public use without just compensation.
“We think it to be within the true intent and meaning of this provision as to damage, that there should be but one proceeding for recovery of damage, in which there should be recovery for the entire damage, past, present and future; that it should be similarly regarded, in this respect, as the provision in regard to the taking of property, where there is but one proceeding, and an assessment of compensation and damages once for all.
The two provisions are coupled together and are both in restriction of the exercise of the power of eminent domain.”

In the case of C. & E. I. R. R. Co. vs. McAuley, 121 Ill. 160, in which the facts were similar to the Loeb case, the court, in speaking of the decision in the Loeb case, said:

“We there expressly held, that upon the construction and putting in operation of a railroad, all damages which would be sustained as the necessary result of the operation of the road can be immediately estimated, and must he recovered in one action. The only logical conclusion to he drawn from that decision is, that unless an action is brought to recover the damages after they accrue, within the period provided by the statute, the cause of action will be barred.”

. In the case of North Shore Ry. Co. vs. Payne, 192 Ill. 239, the-plaintiff sued for damages claimed to have been sustained by reason of the erection and operation by the defendant, on the premises adjoining plaintiff’s dwelling house, of an electric power house for the operation of its railroad. In that case the court, on page 243, said:

“The defendant, acting within its charter, had a legal right to maintain its power house at that place, and plaintiff had no lawful right to interfere or compel a change. In such a case, in legal contemplation all damages which will be sustained as the effect of the Act are sustained immediately, and the measure of damages is the depreciation in market value”;

In the case of Miller vs. Sanitary District, 242 Ill. 321, the court said:

“No doubt the payment of this judgment will justify the sanitary district in continuing to flow these lands without any danger of being harassed with other suits for damages. In such cases the recovery is held to be in full compensation for all present and future damages and one recovery will bar any subsequent action for the same cause.”

In the case of Holm vs. County of Cook, ante, the court said, p. 198:

“The county’s liability for damaging private property for public use exists only under the Constitution, and there can be only one recovery as has been shown.”

In the case of Roe vs. County of Cook, heretofore mentioned, the court said (p. 575):

“While the judgment may be somewhat excessive, we are powerless to afford any relief under the record. Its payment will secure the public right to continue to use the premises, as it will be considered as full compensation for all present and future damages and bar any subsequent action for the same cause.”

As to the damages recoverable in cases where private property is damaged but not taken, the law is well settled. In the case of Dept. of Public Works vs. Caldwell, 301 Ill. 42, and in the case of Dept. of Public Works vs. McBride, 338 Ill. 347, and in numerous other cases, our Supreme Court has held that the true measure of damages for land not taken is the difference between the fair cash value of the property unaffected by the improvement and its fair cash market value as affected by it.

This court has applied the rule thus stated in the case of Grassle vs. State of Illinois, 8 C. C. R. 150, and in the combined cases of Sadie Stein, et al vs. State of Illinois, 8 C. C. R. 251-265.

The only evidence in the record on the question of damages is the testimony as to damage to or loss of crops, and there is no evidence whatsoever as to the fair cash value of the premises, either before or after the making of the improvement.

Inasmuch as there can be but one recovery, the question arises as to when the cause of action stated in the complaint accrued, and whether the same is now barred; also as to the effect of the conveyance by W. Jeff Horney to Frances Parke Horney as hereinbefore set forth.

Section 10 of the Act creating the Court of Claims (State Bar Assn. Stat. 1935, Chap. 37, Sec. 471) provides that “every claim against the State cognizable by the Court of Claims shall be forever barred unless the claim is filed with the Secretary of the Court within five years after the claim first accrues”, etc.

In the case of C. & A. R. R. Co. vs. Sarah Maher, 91 Ill. 312, defendant sought to recover damages for injuries claimed to have been sustained to her land by a pier constructed by defendant in the river near her property. It appeared from the evidence that Hugh Maher was the owner of the property in question prior to and at the time of the construction of the pier; that some time after the construction thereof, he deeded the property to his wife, Sarah Maher, who thereafter commenced a proceeding against the defendant for damages.

After a review of the authorities upon the question, the court, page 317, said:

“Tliese authorities establish the doctrine that Maher might have sued for and recovered all the damages which were sustained by the property from the erection, whether at the time or in the future; that he could have sued and recovered for the depreciation in the value of the property caused by the erection of this protection. This being true, the right of action was in him for a recovery of all damages that were or might be caused by the structure, and as the right has not nor can be transferred to the appellee, she has shown no legal right of recovery.”

In the case of C. & E. I. R. R. Co. vs. Loeb, ante, the court held that the damage in question was of a permanent character and only one recovery could be had for the entire damage, and in conclusion, in passing upon the question as to the right of recovery claimed by one who had purchased the property subsequent to the construction of the improvement in question, said:

“The conclusion is that as the former owner could have sued and recovered for the depreciation in value of the property caused by the railroad, the right of action was in him for a recovery of all damages that were or might be caused in the operation of the railroad, and that there is no right of recovery in his alienee, appellee.”

In the case of North Shore Ry. Co. vs. Payne, cmte, the court, on page 247, said:

“Where the suit is not for negligent or improper construction or operation, and is for damages accruing from a construction of a permanent character, all damages in law, accrue when the cause of the injury is created, and the recovery must be for the whole damage, of which depreciation in market value is the measure. * * * In this case, the damages, in contemplation of law, were sustained when the power house was established and its operation commenced.”

The cause of action here sued upon, therefore, accrued in 1924. Complaint was not filed until July 6th, 1931. Consequently the claim is barred under the statute. Furthermore, under the authority of the Maher case, and the Loeb case, the claimant, Frances Parke Horney, having acquired title after the completion of the improvement in question, has no right of action on account thereof.

From the decisions cited and referred to, we reach the following conclusions:

1. There is no liability • on the part of the State for damages in tort where the doctrine of respondeat superior must be invoked.

2. The only liability of the State for taking or damaging private property for public use, is under Section 13 of Article 2 of the Constitution.

3. The provisions of such section of the Constitution are self-executing.

4. Where damages are recoverable, the proper measure of damages for property damaged but not taken, is the difference between the fair cash value of the property unaffected by the improvement and the fair cash value of the property as affected by it.

5. In cases based upon the constitutional provision that private property shall not be taken or damaged for public use without just compensation, there can be but one recovery, and such recovery includes all damages resulting from the improvement, past, present or future.

6. In such cases the right of action accrues when the Improvement in question is made, and if claim therefor is not filed within five years after the making of the improvement, the claim is barred.

7. In such cases the right of action is in the owner of the property at the time of the making of the improvement, and a subsequent alienee of the property takes the same as it existed at the time of the conveyance, and has no right of action for damages resulting from the prior improvement, and accruing after the conveyance.

Based upon the foregoing conclusions, and the record before us, claimant has no right to an award, and the same must therefore be denied.

Award denied. Case dismissed.


source: Caselaw Access Project

author: Mr. Justice Tantis

license: Public Domain

text:
    (No. 1812
    Adolph Nierstheimer, Jr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1937.

    J. M. Powers, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

The declaration herein alleges that claimant in the spring and summer of 1926 was the owner of certain real estate described in the complaint, adjoining S. B. I. Boute No. 9; that for fifty years a natural water course has run across the lands of claimant from southeast to northwest and thence up to and across said highway, and thence northwesterly one and one-half miles to the Illinois River; that the water escaped across said highway through two bridges east of the C. & A. Railway Company right-of-way and in times of freshet by running over said highway which had a low embankment; that in the spring and summer of 1926 the respondent removed one of said bridges and raised the grade of the highway from three (3) to five (5) feet throughout its length and thereby obstructed the lawful flow of the water and failed to place adequate bridges and culverts to take care of the rainfall and freshets, and by reason thereof on the morning of September 1, 1926, the water from a heavy rain storm was unable to escape across said highway embankment, resulting in the loss of claimant’s crops and damages to his soil from gravel and silt deposits; that such damages were again repeated by overflows in the fall of 1926; all to the total amount of One Thousand Six Hundred Eighty-eight and 40/100 ($1,688.40) Dollars.

The State has filed a motion to dismiss the claim by reason of the fact that same is based upon alleged negligent construction of the hard road in question, for which negligence upon the part of the employees and agents of the State the latter is not legally liable.

This question of negligence by the employees of the State, in the construction or maintenance of its highways, has frequently been before the court, and awards therein have been denied when such claims are based upon the theory that the State is liable for the negligence of its employees. There is no provision of law or statute by which the State is legally held liable for damages caused by the failure or negligence of any employee or officer in repairing or constructing any highway, and in the absence of a statute making the State thus liable the Court of Claims has no authority to make an award. The State therein acts in its governmental and sovereign capacity. (Sullivan vs. State, 8 C. C. R. 140.)

The present claim however, seems to be predicated not upon the theory of negligence by employees of the State, but is apparently based upon the theory that the State is liable for lands not taken Tout damaged in the general construction of a highway.

"The constitutional provision forbidding the taking or damaging of private property without just compensation is a basic law, which not only confers a right but presupposes a remedy, and although it makes no provision for remedial legislation and none is provided by statute the constitutional provision (Sec. 13 of Art. 2, Ill. Const.), itself is self-executing and forms the basis for recovery at common-law.”
Roe vs. County of Cook, 358 Ill. 568.

In the above case no unauthorized act or negligence of the commissioners, in the construction of the subway in question, was charged, but the question of the district’s liability to pay for property damaged in the regular construction of the work in question, was directly involved.

In People vs. Kelly, 361 Ill. 54, the City of Chicago, without condemnation or warrant of law, so raised the grade of Monroe Street as to damage the adjacent property. The court there said:

“Disregarding all inappropriate arguments and side issues, the record before us amounts simply to this: The appellant’s property was damaged for a public use within the meaning of Sec. 13 of Art. 2 of the Constitution. That provision is self-executing, and the appellant has not been paid just compensation. * * * Neither the Legislature nor any Executive or Judicial Officer may disregard the provisions of the Constitution even in case of a great emergency.”

The Constitution of 1848 provided that private property should not be taken for public use without just compensation. No provision was made for property damaged, but not taken, and numerous cases arose in which a decided hardship was worked upon certain property-owners whose property was seriously damaged but not taken, and who were therefore denied any compensation therefor. To remedy this situation a change was made in the Constitution of 1870, and Sec. 13 of Art. 2 of the Constitution now provides that, “Private property shall not be taken or damaged for public use without just compensation.”

This question was reviewed in Moore, et al vs. State, 8 C. C. R. 686, wherein the court held that when in the course of construction of a State highway, lands which previously drained through its natural ditches is thereafter, by the construction of a highway, subjected to an increased amount of water to which it was not previously subjected so that surface water cannot be carried off and an adjoining property-owner is damaged thereby, the latter is entitled to an award.

"Where private property is not taken but is damaged for public use, the property-owner is entitled to recover the damages which his property has sustained, and the proper measure of damages in such cases is the difference between the fair cash market value of the property unaffected by the improvement and its fair cash market value as affected by it. (Dept. of Public Works vs. McBride, 338 Ill. 347.)

Where the taking or damaging does not arise by virtue of condemnation proceedings the damage is determined by the difference between the fair cash market value of the property just prior to the time the making of the improvement commenced, and its fair cash market value just after the improvement is completed. (Ross vs. City of Chicago, 91 Ill. App. 416.)

While the complaint herein recites in some detail the loss in September, 1926 of corn then growing on the premises described, any claim which plaintiff might have would have to be for damages to the real estate in question for property damaged but not taken in the course of the construction or improvement of the highway in question, i. e. a part of S. B. I. Route No. 9.

In the case of Holm vs. County of Cook, 283 Ill. App. 190, where plaintiffs brought an action of trespass to recover damages for injuries to their lands and for the destruction of their crops, the court held, “Plaintiffs predicate and must predicate the county’s liability entirely and solely on the constitutional provision, that ‘private property shall not be taken or damaged for public use without just compensation’ (Sec. 13, Art. 2, Const. State of Ill.), which contemplates only one recovery for all past, present and future damages.” The same rule of law that was applied in the above case as regards the County of Cook, applies in the same measure in a claim against the State. As there could be but one recovery it becomes necessary to determine when that right of recovery first accrued. The complaint herein recites that the construction work which caused the alleged damage to plaintiff’s property was in the spring and summer of 1926. Plaintiff’s right of action therefore accrued at that time.

The claim herein was not filed until August 29, 1931, being on its face more than five years subsequent to the time such right of action matured. Section 10 of the Act creating the Court of Claims (Ill. State Bar Statutes, Chap. 37, Sec. 471) provides that “Every claim against the State cognizable by the Court of Claims shall be forever barred unless the claim * * * is filed within five years after the claim first accrues.” The motion of the Attorney General to dismiss the claim is therefore allowed for the reason that the claim is barred by the statute of limitations. Claim dismissed.


author:
      Mb. Chief Justice Hollebich
      Per Curiam:

text:
    (No. 2525
    Harry Goldson, Doing Business as Plaza Theater, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 9, 1937.

      Rehearing denied May 12, 1937.

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

delivered the opinion of the court:

Claimant is the owner of the Plaza Theatre located' at 308-310 West North Avenue, in the City of Chicago.

In 1929 he constructed a canopy the full width of the theatre entrance, extending over the sidewalk from the front wall of the theatre building to a line perpendicular to the curb, which canopy had electrical signs on the exposed portions thereof with changeable letters, constructed to display, in electric lighting, the title of the motion picture, and the names of the stars appearing therein.

During the month of May, 1934 the Division of Highways of the Department of Public Works and Buildings of the respondent reconstructed and widened a portion of the roadway of said North Avenue, being S. B. I. Route 54, including the block in which the Plaza Theatre is located.

Such roadway was widened approximately five and one-half feet on each side of the street, and the sidewalk harrowed to the same extent. As a result thereof, the aforementioned canopy as then constructed, extended out over the curb into the roadway for a distance of approximately five feet.

The work of widening such roadway was completed on September 5th, 1934, and on September 15th, 1934 claimant received a notice from the City of Chicago requiring him either to tear down the canopy, or to so alter the same that it would not project into the street beyond the curb.

Claimant removed the old canopy and installed a new one, in accordance 0with the requirements of the Electrical Code of the City of Chicago, at a total cost of $3,340.00.

The canopy was originally constructed in 1929 pursuant to a permit issued by the City of Chicago in accordance with the Electrical Code of said city, which provides that no illuminated sign shall be erected or maintained over any sidewalk, street or public way except.upon permit first issued by the Electrical Inspection Bureau, and further provides that such permit shall be for the period of one year, and that a renewal certificate must be obtained annually. Such Code further provides (Art. 3) that if, upon inspection, such sign is found to comply with the provisions of such article, a renewal certificate shall be issued for one year from the date of expiration of the previous certificate; and also, that no sign erected under the authority of such article shall project beyond the curb line, and that it shall be the duty of the Electrical Inspection Bureau to remove or cause the removal of any sign not in accordance with the provisions of such article.

In his original complaint claimant asked for damages in the total amount of $25,000.00, to wit, the cost of replacing the old canopy with a new one, and in addition thereto, damages on account of a reduction in the space in the electrical display signs which appeared on said canopy. Thereafter claimant waived all claim to damages except as to the amount paid for the construction of the new sign, to wit, $3,340.00.

The principles of law involved in this case have been before our Supreme Court many times, and the holdings of such court with reference thereto have been uniform. Consequently it will be necessary to refer to only a few of such decisions.

The case of Snyder vs. City of Mt. Pulaski, 176 Ill. 397, involved the right to use a well in the public streets .of the City of Mt. Pulaski, which right had been granted by said City to one Snyder by ordinance; — the well in question having been maintained in said street for a long time prior to the date of the adoption of such ordinance. In that case, in considering the validity of such ordinance, and the rights of Snyder thereunder, the court said:

“The streets of a city are dedicated for public use, and for these purposes the city council may improve and control them and adopt needful rules for their management and use. But that body has no power to alien or otherwise encumber such streets so long as they "are public streets, but must hold them in trust for public uses only, and hence no easement or right therein not of a public character can be granted by a municipality, or acquired by any individual or corporation for exclusive private use to the exclusion of the public. * * * A permanent encroachment upon public streets for a private use is a purpresture, and is in law a nuisance. * * * Such permission to so use the street is not binding upon the city, and is not irrevocable. The municipality having no power to grant such permanent use, there can be no estoppel against it from requiring the street to be open in its entirety, because no estoppel can arise from an act of the municipal authorities done without authority of law. * * * Appellant acquired no right * * * against the municipality by estoppel, nor by any right conferred by the ordinance, because the right conferred was a mere private use, and that private use created a purpresture.”

In the case of Pennsylvania Co. vs. City of Chicago, 181 Ill. 289, the court, bn page 296, said:

“The title of the streets is vested in the city, and it has the conservation, control, management and supervision of such trust property, and it is its duty to defend and protect the title to, such trust estate. The city has no power or authority to grant the exclusive use of its streets to any private person, or for any private purposes, but must hold and control the possession exclusively for public use, for purposes of travel and the like. * * * The rule is, that all public highways, from side to side and from end to end, are held for the use of the public, and no other safe rule can be adopted.”

The case of Gerstley vs. Globe Wernicke Co., 340 Ill. 270, involved the question of the validity of an ordinance of the City of Chicago which authorized the construction of certain bridges across a public alley for the purpose of connecting several buildings of the defendant. One of the contentions of the defendant was that the ordinance in question was authorized by a statute which provides as follows, to wit: “The City Council may also regulate the use of space over the streets, alleys and public places of the city, and upon payment of proper compensation, to be fixed by ordinance, may permit use of the space more than twelve feet above the level thereof.”

In that ease the court held that the City of Chicago had no authority to enact the ordinance in question and that Grlohe Wernicke Co. acquired no rights by virtue thereof.

In the case of People vs. Wolper, 350 Ill. 461, the principles involved were identical with those involved in this case. In that case the defendant Harold Wolper had constructed and maintained for many years two curb pumps securely fastened upon a cement base located in the parkway space in" front of his garage on the south side of West Lake Street in Chicago. The base was fifteen feet long and two and one-half feet wide, and five inches in height on the street side and three inches in height on the sidewalk. The street at that point is forty-seven feet in width. The south six feet thereof was occupied by a cement sidewalk adjacent to the lot line, and a six-foot parkway in which defendant’s pumps were maintained, was between the sidewalk and the curb.

As in this case, the gasoline pumps were installed pursuant to a permit issued by the City of Chicago which was limited to one year, with renewal privilege as in this case. The Question involved in the case was as to the validity of the ordinance authorizing and permitting the installation and operation of such gasoline pumps. The defendant urged that the City of Chicago had authority to adopt such ordinance and that such authority was derived from a combination of numerous grants of power in Article V of the Cities and Villages Act. In that case the court said:

“The authority for the passage of an ordinance need not be wholly derived from a single grant of power by the Legislature but may be derived from one or any combination of such grants. * * * Yet implied powers of a city are those, only, which are necessarily incident to powers expressly granted. * * * A statute of this State since the first enactment on the subject in 1845, has declared obstructions or encroachments upon public highways, private ways, streets, alleys, commons, landing places and ways to burying places to be public nuisances, * * * and, as we have seen, by Section 10 of Article 5 of the Cities and Villages Act there is imposed upon the city the duty to prevent and remove encroachments and obstructions from the public streets.
“With these statements of the general rules we come to the questions whether the pumps operated by Wolper constitute a purpresture and public nuisance within the meaning of the statute, and if so, whether the city may by ordinance authorize the maintenance thereof. A permanent encroachment upon streets for private use in a purpresture and is in the law a nuisance. * * *
“Power of a city to authorize the use of public streets for private purposes has been uniformly denied by this court. When a public street is once established all beneficial uses vest in the public. These include the uninterrupted and unobstructed use of any portion or part of such public highway. These rights of the public are inconsistent with the right of a private citizen to encroach upon the streets by the erection of a permanent structure. Streets are held in trust by the municipality for the benefit of the public and may not be given away by ordinance.
* * * * * * *
“Counsel for appellants earnestly argue that since the permit to Wolper is revocable at the will of the mayor for any cause, the pumps and base do not constitute a permanent obstruction. It is true, the permits are revocable and run for a period of one year, but they are renewable, and once issued are revocable only for cause. It is a fair conclusion that a permit having once been issued will continue by renewal so long as the holder complies with the provisions of the ordinance, and the structure permitted will become, in fact, permanent. Under such facts these pumps cannot be said to come within the rule permitting merely temporary obstructions.” *******
“The Legislature has neither expressly nor by necessary implication granted to the cities power to permit the erection and maintenance of gasoline pumps in the streets. The city does not possess the power to authorize them. The ordinance is void, and the circuit court did not err in granting the writ.”

Claimant contends that his property has been taken or damaged by the respondent without just compensation, in violation of the constitutional provisions. Under the facts in the record, and the law applicable thereto, as above set forth, there is no basis for such contention. Claimant was chargeable with notice of the rights of the public in the street, and the right of the city under Article 5 of the General City and Village Act to open, alter, widen, or otherwise improve the same at any time, and was also chargeable with notice of the limitations on the power of the city with reference to such streets. Even if the Electrical Code was a valid enactment of the City of Chicago, claimant could not accept the benefits thereof without being bound by its obligations.

The original permit was issued September 20th, 1929. Under the Code, renewals were issued for one year from the date of expiration of the previous permit. The permit under which claimant was operating at the time of the widening of North Avenue therefore expired September 20th, 1934. The roadway in question was completed September 5th, 1934, and claimant was notified to remove or alter the sign on September 15th, 1934. Inasmuch as the sign projected over the curb on September 20th, 1934 (the date of the expiration of claimant’s permit) in violation of the Electrical Code, he was not then entitled to a renewal permit under the provisions of such Code and it was the duty of the Electrical Inspection Bureau to remove or cause the removal of such sign.

Viewed in the light most favorable to the claimant, he had no right, as against the public, to maintain a canopy which at any time extended over the curb line, and consequently even if he were required to remove the same within a short time after the erection thereof, he had no legal ground of complaint.

Under the facts in the record and the law applicable thereto, we have no authority to allow an award.

Award denied. Case dismissed.

Opinion on Rehearing.

Per Curiam:

Claimant filed a petition for rehearing herein on March 10th, 1937.

We find nothing in such petition which was not fully and carefully considered by the court in arriving at its original decision, and the petition for rehearing will therefore be denied.


author: Mr. Chief Justice Hollerich

text:
    (No. 2648
    Armour & Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1937.

    T. C. Torrence, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant seeks an award in the amount of $178.70 for merchandise sold to the respondent and delivered to the St. Charles School for Boys, St. Charles, Illinois, during the period from July 14th, 1932 to September 26th, 1933.

It appears that complete receiving records were not kept at such State Institution at the time the merchandise in question was delivered, and the authorities at such institution are now unable to check the receipt thereof from their records.

However, it appears from the affidavit of claimant’s District Credit Manager that the merchandise in question was sold to respondent and delivered to the St. Charles School for Boys; and the respondent makes no denial thereof.

It also appears that the respondent is entitled to a credit in the amount of $36.07 for merchandise returned, leaving a net balance due claimant of $142.63.

It is not claimed that the prices charged are unreasonable, and no good reason is suggested why the claim should not be allowed. Award is therefore entered in favor of the claimant for the sum of One Hundred Forty-Two and 63/100 Dollars ($142.63.)


text:
    (No. 2820
    Armour & Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1937.

    T. C. Torrence, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed its complaint herein on January 30th, 1936, and therein asked an award in the amount of $347.94 for merchandise sold to the respondent and delivered to the Lincoln State School and Colony at Lincoln, Illinois, on divers dates between July 7th, 1933 and December 14th, 1933.

The claim was checked by the Managing Officer of the Lincoln State School and Colony, who found the amount due to be $336.67. Claimant was notified of the error in its statement of account, and thereafter authorized the reduction of its claim to the sum of $336.67.

There is no question but what the account as so reduced is true and correct, and that the same remains unpaid.

Award is therefore entered in favor of the claimant for the sum of Three Hundred Thirty-Six Dollars and Sixty-Seven Cents ($336.67.)


text:
    (No. 2812
    George Calvert and Robles Miller, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1937.

    Asa J. Wilbotjbn, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimants filed their complaint herein on January 22d, 1936 and allege therein substantially as follows:

That shortly prior to November 10th, 1936 respondent was engaged in widening the concrete slab on S. B. I. Route 2, at a point about one and one-half miles south of the intersection thereof with S. B. I. Route 150, and just north of the City of Cairo; that upon completion of such work, the forms which had been used in connection therewith were removed from the slab and placed on the east side of said highway; that as a result of the removal of said forms, a trench was left between the east edge of said concrete slab and the dirt shoulder, said trench being of varying depths from eight to twelve inches, and of a width of from twelve to fifteen inches.

That at this point in the highway there was a row of trees along the east side thereof, at distances varying from one and one-half feet to four feet from the east edge of the concrete slab.

That on said 10th day of November, about twelve o’clock midnight, the claimant George Calvert was driving his automobile in a northerly direction on said S. B. I. Route 2, and the claimant Robles Miller was riding with him; that at the point aforesaid they met another automobile which was proceeding in a southerly direction; that the claimant George Calvert in passing said car drove his car to the east edge of said slab; that in so doing, the front wheel of his car went off the slab into the trench caused by the removal of said forms; that said Calvert attempted to turn his car back upon the slab but was unable to do so on account of the aforementioned trench, which caused said car to turn to the right, where it struck violently against a tree, and was completely demolished.

That as the result of such accident, claimants herein sustained personal injuries for which the said George Calvert claims damages in the amount of $1,500.00, and the said Robles Miller claims damages in the amount of $3,223.00.

The Attorney General has moved to dismiss the claims for the reason that the respondent is not liable under the facts set forth in the complaint.

This court has repeatedly held that the State, in the construction and maintenance of its hard-surfaced highways is engaged in a g’ovemmental function.

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

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

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

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

Hollenbeck vs. County of Winnebago, 95 Ill. 148;
City of Chicago vs. Williams, 182 Ill. 135;
Minear vs. State Board of Agriculture, 259 Ill. 549;
Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.

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


author: Me. Chief Justice Hollerich

text:
    (No. 2868
    Audie Crank, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1937.

    Charles Durfee, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed her complaint herein on March 24th, 1936, and alleges therein that on August 1st, 1935 her husband, Albert Crank, was riding as a passenger in an automobile on one of the public streets in the Village of Vienna, Illinois; that while he was so riding, and while he was in the exercise of all due care and caution for his own safety, the automobile in which he was riding was struck by a truck which was then being driven by one of the servants and agents of the respondent in the performance of his duties; that as the result of such collision the said Albert Crank sustained injuries from which he died on August 6th, 1935; that said Albert Crank left him .surviving the claimant Andie Crank, his widow, and that as the result of the death of said Albert Crank as aforesaid, she has sustained damages in the amount of $10,000.00.

The Attorney General has moved to dismiss the case on the ground that the respondent is not liable for the negligent or wrongful acts of its servants and agents.

This court has held in numerous cases that the State is not liable for the negligent or wrongful acts of its servants and agents, in the absence of a statute making it so liable. A few of the more recent of such cases are the following: George McCready, et al vs. State, No. 2604, decided at the September Term, 1935; Lester A. Royal vs. State, No. 2597, decided at the September Term, 1935; Frank J. Penick, et al vs. State, No. 2640, decided at the September Term, 1935; L. G. England vs. State, No. 2394, decided at the September Term, 1935; Lois Bass vs. State, No: 2679, decided at the December Term, 1935; K. B. Waterstreet vs. State, No. 2740, decided at the December Term, 1935; and Ralph Yocum vs. State, No. 2910, decided at the November Term, 1936.

Such holding is in accordance with numerous decisions-of our Supreme Court. Hollenbeck vs. County of Winnebago, 95 Ill. 148; City of Chicago vs. Williams, 182 Ill. 135; Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.

Claimant contends, however, that notwithstanding this rule of law, she is entitled to an award on the grounds of equity and good conscience. The right of a claimant to an award solely on the grounds of equity and good conscience was considered by this court in the case of Crabtree vs. State, 7. C. C. R. 207, in which case the court, after an exhaustive review of the previous authorities on the subject, reached the following conclusion (p. 221):

“We conclude, therefore, that Section four (4) of Paragraph six (6) of the Court of Claims Act, which provides as follows, to wit: The Court of Claims shall have power: “to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State as a sovereign commonwealth, should in equity and good conscience, discharge and pay;” merely defines the jurisdiction of the court, and does not create a new liability against the State, nor increase or enlarge any existing liability; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State, either at law or in equity, if the State were suable; that this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the court; that unless the claimant can bring himself within the provision of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.”

The law as laid down in the Crabtree case has been followed by this court in numerous cases decided since that time.

In the recent case of Rocco Titone, et at vs. State, No. 2473, decided at the present term of court, this question was again thoroughly considered and the previous conclusion adhered to.

There is no statute authorizing an award against the State in this case, and therefore we have no authority to allow such award.

If claimant has a right of action, it is against the driver of the truck, and not against the State.

The motion of the Attorney General is therefore allowed and the case dismissed.


author: Mb. Chief Justice Hoblebich Mb. Chief Justice Hollebich

text:
    (No. 2436
    Anna Johnston, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1935.

      Opinion on amended complaint filed February 10, 1937.

    F. P. Conlon, for claimant.
    Otto Keener, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hoblebich

delivered the opinion of the court:

Claimant filed her complaint herein on July 17th, 1934, and alleges therein in substance that on the 7th day of November, A. D. 1933 her son, Hugh Johnston, was a patient at the Illinois Charitable Eye and Ear Infirmary, a charitable corporation created and operated by the State of Illinois and located at 904 West Adams Street, Chicago; that the original building of such institution is located on Adams Street, and a new addition thereto, on Sangamon Street; that on the last mentioned date, claimant visited her son at said institution; that at the termination of said visit, she was instructed by an employee and agent of the institution to leave the building by way of the Sangamon Street doorway of the new addition; that claimant had never previously been in said building and was not familiar with the character of the inside structure thereof; that pursuant to the instructions given her by. such servant and agent as aforesaid, and about eight-thirty P. M. of said day, claimant proceeded from the Adams Street building to the Sangamon Street building by way of an adjoining corridor connecting the second floors of each building; that she took the elevator from the second to the main floor; that from this point she proceeded down the corridor to the Sangamon Street exit which was customarily used by visitors on leaving the building, proceeding out into the vestibule leading to the doorway; that she was at all times in the exercise of all due care and caution; that there was no light burning in such vestibule or reflected therein; that on account of the absence of any light in such vestibule, claimant failed to notice two stairs which led to the doorway; that such steps were slippery and not covered with any substance used for the purpose of insuring a firm foothold on the tread of the steps; that if there was any railing along the side wall of such vestibule, it could not be seen on account of the absence of light; that because of the absence of light, she failed to notice the steps, and because of their slippery texture she slipped and fell to the bottom of the steps and thereby sustained serious and permanent injuries for which she seeks to recover herein.

The Attorney General has filed a motion to dismiss for the reason that there is no legal liability on the part of the State under the facts set forth in the complaint.

In the maintenance of its charitable institutions, the State exercises a governmental function. It is the well-established law of this State and other States that in the exercise of its governmental functions, the State is not liable for the negligence of its servants and agents in the absence of a statute making it so liable. Hollenbeck, admx. vs. Winnebago County, 95 Ill. 148; Minear vs. State Board of Agriculture, 259 Ill. 549; Tollefson vs. City of Ottawa, 228 Ill. 134; Kinnare vs. City of Chicago, 171 Ill. 332; City of Chicago vs. Williams, 182 Ill. 135; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234; 25 R. C. L. p. 407, sec. 43; R. C. L. p. 944, sec. 8; 8 R. C. L. Supp. p. 5580, sec. 43.

An action against a State agency or instrumentality is an action against the State, and when such agency or instrumentality is engaged in a governmental function, the State is not liable for its torts in the absence of a statute making it liable. 59 C. J. p. 196, sec. 340; Minear vs. State Board of Agriculture, 259 Ill. 549.

A similar question was presented in the case of Jeanette VanDerLaan, No. 2324, decided at the October term, 1934, of this court, in which case the facts were very similar to the case at bar. In that case the Attorney General also made a motion to dismiss upon the same grounds as in this case, and the motion was sustained for the reasons above set forth. Numerous other decisions of this court recognize and apply the rule of law above set forth. Sturrock vs. State, 7 C. C. R p. 157; Pelka, Admr. vs. State, 6 C. C. R 390; Burghardt vs. State, 5 C. C. R 221.

This court has no authority to allow an award in any case unless there would be a legal liability on the part of the State if the State were suable. Crabtree vs. State, 7 C. C. R. 207; Morrissey vs. State, No. 2233, decided at the January term, 1934, of this court.

There being no liability on the part of the State if the State were suable, the motion of the Attorney General must be sustained and the case dismissed.

Award denied. Case dismissed.

Opinion on Amended Complaint.

Mb. Chief Justice Hollebich

delivered the. opinion of the court:

The above entitled cause was dismissed on December 11th, 1935, for the reason that under the facts set forth in the complaint, this court has no authority to allow an award.

On January 9th, 1936 claimant filed her amended complaint herein, pursuant to the provisions of Bule 31 of this court.

The amended complaint sets forth no new facts whatsoever, but sets forth that at the time of the injury to claimant there was in force in this State an Act of the General Assembly entitled “An Act to Create the Court of Claims and to prescribe its powers and duties”; that Section 4 of Paragraph 6 of said Act provides that the Court of Claims shall have power “to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State as a sovereign commonwealth should, in equity and good conscience discharge and pay”; that under the provisions of such Act claimant is entitled to an award herein.

The same contention has been made in numerous cases heretofore heard in this court. An exhaustive review of the authorities on the question is contained in the case of Crabtree vs. State, 7 C. C. R. 207, (decided May, 1933) in which we held (p. 222) that said Paragraph 4 of Section 6 “merely defines the jurisdiction of the court, and does not create a new liability against the State, nor increase or enlarge any existing liability; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to' redress against the State either at law or in equity, if the State were suable; that this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the court; that unless the claimant cán bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.”

The decision in the Crabtree case has been followed by this court in numerous cases decided since that time. A further discussion of this question is found in the case of Rocco Titone, et al vs. State, No. 2473, decided at the present term of this court, in which the decision in the Crabtree case is approved and followed.

The Attorney General has moved to dismiss the amended complaint, and such motion must be allowed.

Motion allowed. Case dismissed.


text:
    (No. 2863
    Catherine Lugar, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1937.

    Charles G. Sebdel, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed her complaint herein on March 20th, 1936 and alleges therein that on December 23d, 1935 she was visiting a patient at Annex I of the Elgin State Hospital, Elgin, Illinois; that in leaving said building she fell from a certain platform or stairway at the entrance thereto, and fractured her right leg; that the action of the respondent in permitting the use of said entrance, platform and stairway without a proper handrail constituted carelessness and negligence on the part of such respondent; that said claimant at the time was in the exercise of due care and caution for her own safety; and that as the result of such accident she has sustained severe and permanent injuries, and has been compelled to expend approximately $500.00 for medical and hospital services.

The Attorney General has entered a motion to dismiss the case for the reason that there is no liability on the part of the respondent under the facts set forth in the complaint.

The facts in this case are very similar to the facts in the case of Anna Johnston vs. State, No. 2436, decided at the November Term, 1935 of this court, and what we said in that case applies with equal force to this case. .

In the maintenance of its charitable institutions the State exercises a governmental function, and in the exercise of such functions it is not liable for the negligence of its servants and agents in the absence of a statute making it so liable.

Under the facts set forth in the complaint, we have no authority to allow an award.-

The motion of the Attorney General is therefore sustained, and the case dismissed.


author: Mr. Chief Justice Hollbrich

text:
    (No. 2892
    Mallinckrodt Chemical Works, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1937.

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

delivered the opinion of the court:

Claimant asks an award in the amount of $17.72 for merchandise sold to the respondent and delivered to Lincoln State School and Colony at Lincoln, Illinois on January 14th, 1935 and February 19th, 1935.

Invoices for the merchandise in question were duly submitted by the claimant to Lincoln State School and Colony, but payment therefor was delayed on account of a change in the personnel at such institution. By the time the invoices were checked, the appropriation out of which payment should have been made had lapsed, and it therefore became necessary for claimant to file its claim in this court.

It is admitted that the merchandise in question was received at the Lincoln State School and Colony. It is not contended that the prices charged therefor are unreasonable, and no reason is suggested why the same should not be paid.

Award is therefore entered in favor of the claimant for the sum of Seventeen Dollars and Seventy-two Cents ($17.72).


author: Per Curiam:

text:
    (No. 2265
    Mack Thomas, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1937.

    Claimant, pro se.
    Otto Keener, Attorney General, for respondent.
   Per Curiam:

On July 8th, 1936 an award was entered in this cause subject to the approval of the Governor, as required by the provisions of an Act entitled “An.Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof”, approved July 2d, 1935. The Governor having failed to approve the same, the cause was returned to this court for further proceedings.

And the court having heard further evidence, both on the part of the claimant and on the part of the respondent, and the cause again coming on for consideration, it is Hereby Ordered that the award heretofore made and entered herein on July 8th, 1936 as aforesaid be and the same is hereby vacated and set aside.

And upon consideration of the cause upon the present record, the court doth find as follows:

That on the 6th day of September, A. D. 1932, both claimant and respondent were operating under and bound by the terms and provisions of the Workmen’s Compensation Act of this State.

That on said date claimant was employed by the respondent as a day laborer in the Division of Highways; that in the course of his employment he was attempting to place some pictures upon the wall in one of the offices of the Division of Highways, and for that purpose was standing oh top of a twelve-foot ladder; that the ladder slipped and claimant fell to the floor and sustained a compression fracture of the first lumbar vertebra with a tearing of the ligaments at the fifth lumbar vertebra, which ligaments had become calcified; that such injuries arose out of and in the course of claimant’s employment; that he was removed to St. John’s Hospital in Springfield where he remained until November 13th, 1932, and was then returned to his home.

That notice of the accident was given, and claim for compensation made, in accordance with the provisions of the Workmen’s Compensation Act.

That the annual wages of said claimant during the year preceding the accident were $1,287.00, to wit, $24.75 per week.

That claimant at the time of the accident was a married man but had no children under the age of sixteen years.

That medical, surgical and hospital bills in the amount of $441.70 were paid by the respondent.

That as the result of the injuries so sustained, claimant was temporarily totally disabled from September 7th, 1932 to September 23d, 1933, to wit, for the period of 54 weeks, and thereafter was partially incapacitated from pursuing his usual and customary line of employment.

That the average amount which claimant earned before the accident was $24.75 per week, and that the average amount which he is earning or is able to earn in some suitable employment after the accident is $6.19 per week.

That under Section 8; paragraphs B and D of the Workmen’s Compensation Act, the rate of claimant’s compensation for temporary total disability is $12.37% per week, and the rate for permanent partial disability is $9.28 per week; that the total compensation to which claimant is entitled is limited to 416 weeks in time and $4,000.00 in amount; that compensation for the full period of 416 weeks at the rates aforesaid, would be in excess of $4,000.00, and the total amount of the compensation to which claimant is entitled is therefore fixed at $4,000.00.

Payments have been made to claimant in the total amount of $529.15. The amount of compensation which has accrued from September 7th, 1932 to February 6th, 1937 at the rates above set forth, is $2,301.53. Deducting the sum of $529.15 heretofore paid as aforesaid, leaves the sum of $1,772.38 which is payable at this time, and the balance of said compensation, to wit, the sum of $1,698.47, is payable in 183 weekly installments of $9.28 per week commencing February 13th, 1937 and one final installment of 23c.

Award is therefore entered in favor óf the claimant for the sum of Thirty-four Hundred Seventy Dollars and Eighty-five Cents ($3,470.85) being Four Thousand Dollars ($4,000.00) less the amount heretofore paid, to wit, Five Hundred Twenty-nine Dollars and Fifteen Cents ($529.15), payable as follows, to wit: Seventeen Hundred Seventy-two Dollars and Thirty-eight Cents ($1,772.38) forthwith, and the balance of Sixteen Hundred Ninety-eight Dollars and Forty-seven Cents ($1,698.47) in One Hundred Eighty-three (183) weekly installments of Nine Dollars and Twenty-eight Cents ($9.28) per week commencing February 13th, 1937, and one final installment of Twenty-three Cents (23c).

This award being for personal injuries of a State employee, is subject to the provisions of an Act entitled “An Act making an appropriation to pay compensation claims of State employees and providing for the method of payment thereof,” approved July 2d, 1935 (Session Laws of 1935, p. 49).

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


author: Mr. Chief Justice Hollerigh

text:
    (No. 2473
    Rocco Titone and Jose Titone, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1937.

    Gilbert & Gilbert, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerigh

delivered the opinion of the court:

Claimants are the owners of a small tract of land located adjacent to and along the east side of S. B. I. Route 37, about three-fourths of a mile south of the City of Mt. Vernon, in Jefferson County, which premises are improved by a vineyard containing approximately 1,000 grape vines with the necessary posts and wires to support the same.

On November 22d, 1933 employees of the Department of Public Works and Buildings of the respondent were burning dry weeds and grass along said highway, near the premises of the claimants. Such employees failed to properly control said fire and as the result thereof the same spread to the premises and vineyard of claimants, whereby claimants allege that their vineyard has been damaged in the amount of $2,500.00.

The Attorney General contends that there is no liability on the part of the respondent for the reason that said respondent is not liable for the carelessness and negligence of its employees, in the absence of a statute making it so liable; —and that there is no such statute.

Claimants contend that there is a statute making the State liable in this case, and base their contention on Paragraph 4 of Section 6 of the Court of Claims Law which provides that:

“The Court of Claims shall have power * * * to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State as a sovereign commonwealth should in equity and good conscience discharge and pay.”

The construction of this provision of the Court of Claims Law, and similar provisions in previous laws relating to the Commission of Claims, has been before such Commission and before this court in many cases, from the time of the creation of the Commission of Claims in 1877, down to the present time. The history of such legislation was traced, and the construction of such provisions of law was fully considered in the case of Crabtree vs. State of Illinois (decided 1933), 7 C. C. R. 207. In that case, after considering the previous authorities upon the subject, the court reached the following conclusion, to wit (p. 222): that said Section 4 of Paragraph 6 of the Court of Claims Act “merely defines the jurisdiction of the court, and does not create a new liability against the State, nor increase or enlarge any existing liability; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable; that this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the court; that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to such an award.”

The decision in the Crabtree case has been followed by this court in many cases decided since that time.

Claimants have referred to a number of cases in which this court has allowed awards on the grounds of equity and good conscience. A similar reference was made by claimant in the Crabtree case and in considering the same, this court there said, page 218:

“We are cognizant of the fact that some time after the decision of the court in the Ryan Case, supra (4 C. C. R. 57), in a number of decisions which apparently held a strong appeal to the sympathy of the court, it departed from the strict rule laid down in the cases hereinbefore referred to, and thereafter allowed certain claims on which there was no legal liability against the State, on grounds which were characterized, first, as social justice, then as social justice' and equity, and afterwards as equity and good conscience.
“This continued for some time, and thereafter the court evidently becoming aware of the dangerous tendency of its decisions and the extent to which they were being carried, and apparently recognizing that there was no legal warrant or authority therefor, began gradually to get back to the original holdings of the court to the effect that this court has no authority or power to allow any claim, presented for consideration, unless the same is based upon a legal or equitable right.”

In this connection it is worthy of note that during the time awards were being made by the court on the grounds of equity and good conscience as aforesaid, Mr. Justice Thomas, one of the members thereof, consistently held to the position taken by the present court in the Crabtree case, as will appear from his opinions in the following cases, to wit: Mercer vs. State, 6 C. C. R. 20; Peterson vs. State, 6 C. C. R. 70; Perry vs. State, 6 C. C. R. 81; Braun vs. State, 6 C. C. R. 104; Paschen vs. State, 6 C. C. R. 33; Lampp vs. State, 6 C. C. R. 349; and Dirby vs. State, 7 C. C. R. 145.

In the case of Smith vs. State, 227 N. Y. 405, the New York Court of Appeals held that the provision of the Code of the State with reference to the jurisdiction of the Court of Claims was not enacted “for the purpose of extending or enlarging the liability of the State, but solely for the purpose of declaring the jurisdiction of the Court of Claims, before which questions of liability might be tried,” and in the course of its opinion said:

“It is true, as urged, that the section confers upon the Court of Claims jurisdiction of the broadest character. The State, under the terms of the section, must be treated as having waived its immunity against actions as to all private claims. * * * But it is thoroughly established that by consenting to be sued the State waives its immunity from action, and nothing more. It does not thereby concede its liability in favor of the claimant, or create a cause of action in his favor which did not theretofore exist. It merely gives a remedy to enforce a liability and submits itself to the jurisdiction of the court, subject to its right to interpose any lawful defense. Roberts vs. State, 160 N. Y. 217, 54 N. E. 678. Immunity from an action is one thing. Immunity from liability for the torts of its officers and agents is another.”

In the case of Burroughs vs. Commonwealth, 224 Mass. 28, the plaintiff sought to recover damages to his property by reason of fire set and negligently permitted to escape from their control by men employed by the State Forester. The Massachusetts statutes gave the Superior Court “jurisdiction of all claims against the Commonwealth whether at law or in equity?’. In that case the court said, page 39:

"It has been held that while the terms of the statute now embodies in R. L. C. 201 are “full and comprehensive, it is not to be interpreted, as imposing any new obligation upon the Commonwealth, or as creating a new class of claims for which a sovereignty never has been held responsible, but * * * ‘to provide a convenient tribunal for the determination of claims of the character which civilized governments have always recognized, although the satisfaction of them have been usually sought by direct appeal to the sovereign, or, in our system of government, through the Legislature’.” Nash vs. Com., 174 Mass. 335, 54 N. E. 865. In view of this decision, the statute cannot be stretched to include damages for an ordinary tort committed by an officer or employee of the Commonwealth in the performance of duties prescribed by law.”

The question has also been exhaustively annotated in 13 A. L. R. page 1276, in which the following general provision of law is set forth and supported by decisions in Alabama, Idaho, Massachusetts, New York, North Carolina, Tennessee, Washington, and Wisconsin, to wit:

“A general statute aúthorizing suits against the State does not permit a recovery for torts of its agents or servants.”

A further annotation on the same subject is found in 42 A. L. R. page 1492, where the following general rule is set forth, to wit:

“Ordinarily the consent of the State simply waives immunity from suit and does not concede the cause of action.”

A consideration of the foregoing authorities, and the cases cited and referred to therein, shows beyond any doubt that the decision of this court in the Crabtree case is in accordance with the great weight of authority, and we must therefore adhere to the same.

The question of the liability of the State for damages to property by fire resulting from the carelessness and negligence of employees of the State was before this court in the case of W. H. Loges vs. State, 8 C. C. R. 53, and in the case of Unverfehrt vs. State, 8 C. C. R. 577, and in each case award was denied.

In the case of Symonds vs. Clay County, 71 Ill. 555, the plaintiff sought to recover damages sustained by means of a fire which had spread from the poor farm belonging to defendant. The court held that the poor farm was held and managed by the defendant as a matter of state rather than a local concern; that the doctrine of respondeat superior did not apply to the county in that regard, and that the county was not liable for the wrongful neglect of duty or wrongful act of its agents.

We have held in numerous cases that the State in maintaining its durable hard-surfaced highways, is engaged in a governmental function. Chumbler vs. State, 6 C. C. R. 136; Highland vs. State, 6 C. C. R. 384; Bucholz vs. State, 7 C. C. R. 241; Wilson vs. State, 8 C. C. R. 72; and Wetherhold vs. State, 8 C. C. R. 100.

Our Supreme Court has held in numerous cases that there is no liability on the part of the State for the negligence of its servants and agents in the exercise of its governmental functions, in the absence of a statute making it so liable. Hollenbeck vs. County of Winnebago, 95 Ill. 148; City of Chicago vs. Williams, 182 Ill. 135; Minier vs. State Board of Agriculture, 259 Ill. 549; Love vs. Glencoe Park District, 270 Ill. App. 117; Stein vs. West Chicago Park Commission, 247 Ill. App. 479; Hendrick vs. Urbana Park District, 265 Ill. 102; Gebhardt vs. Village of LaGrange Park, 254 Ill. 235.

Under the law as laid down by our Supreme Court and concurred in by the courts of numerous other jurisdictions, we have no. authority to allow an award in this case. If the employees of the State were guilty of negligence which resulted in injury and damage to the claimant, they are personally liable therefor, but there is no liability on the part of the State.

Award denied. Case dismissed.


author: Me. Justice Linsoott

text:
    (No. 2702
    B. G. Bumgardner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1937.

    Townley & Hall, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Me. Justice Linsoott

delivered the opinion of the court:

This claim was filed on July 17,1936, for alleged damages sustained by the claimant, who was engaged in the wholesale fish business with his principal office at Waterville, Minnesota. Claimant alleges that he was making weekly deliveries of fish into the State of Illinois, and that on the 8th day of May, 1935, at Pekin, Illinois, one Willard Peterson, who was at said time in the employ of claimant, was arrested by Guy G. Derry of Peoria, for the alleged violation of the game laws of Illinois, pertaining to the wholesaling of fish; that at the time of making the arrest, Derry seized and confiscated 360 pounds of dressed bullheads of the value of 14c per pound and 1,000 pounds of live snapping turtles, of the value of 4c per pound, the property of claimant and in the possession of said Peterson.

Claimant further avers that he shipped the said fish and turtles to Peterson from the State of Minnesota and that they were of the total value of $90.40.

Claimant further avers that Peterson was arrested and taken into court at Peoria, Illinois, before Judge Joseph Day, where he was assessed a fine in the sum of $15.00, and costs of $2.50, or a total of $17.50, and that Peterson paid the same, and that the claimant refunded that amount to Peterson.

Claimant further alleges that he is informed and believes that said arrest was made on the alleged grounds that neither claimant nor Peterson had a license to sell and deliver fish in the State of Illinois; and claimant further alleges that after said arrest, he made an application to the Illinois Game and Fish Department for the necessary license and tendered his check for $25.00 in payment of the same, which check was returned to him with a letter advising him that the fish which he handled were from waters entirely outside the jurisdiction of the State of Illinois, and their identity could be established, and that he would not be required to take out a license to ship fish so taken outside of the State; that the license law only applied to wholesale fish dealers who were selling, shipping and otherwise handling fish from waters under the jurisdiction of the State of Illinois. Claimant then avers that the arrest and confiscation were illegal and unlawful, and that he was not required to take out a license to sell and deliver fish in the State of Illinois.

Motion to dismiss was made by the Attorney General, and assuming all the facts to be true, the motion must be sustained for the reason that the State is not liable under the doctrine of respondeat superior for the wrongful acts of its employees in the performance of governmental functions. (Minear vs. State Board of Agriculture, 259 Ill. page 549.) This doctrine is so well established that it does not require any further citation of authority.


author: Mr. Justice Linscott

text:
    (Nos. 2884-2885-2894-2895, consolidated
    Central Illinois Electric and Gas Company, No. 2884, Oscar F. Baker and Harry A. Gehlback, No. 2885, Frank J. Pfau, Jr., No. 2894 and Charles Hoelscher, etc., No. 2895, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1937.

    Covey & Woods, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Because the above entitled claims all present the same questions of law, and were all filed by the same attorneys, the Attorney General has moved to consolidate the cases, and has filed one brief, the court has consolidated the cases.

The first claim, that of the Central Illinois Electric and Gas Co., a Corporation vs. State of Illinois, No. 2884, was filed April 20, 1936, for the sum of $493.25. It appears that during the years 1933 and 1934, claimant sold and delivered to respondent at Lincoln State School and Colony, Lincoln, Illinois, quantities of coke, and also coal tar. A Bill of Particulars was filed, a copy of the purchase order was attached and no question arises as to facts. The agreed price was the sum of $444.58, including $5.00 for coal tar. The sum was not paid. In a report dated May 22,1936, from P. S. Waters, managing officer, by W. F. Meyer, an auditor, to Mr. E. B. Bentley, traveling auditor,'it is said: “As you know, the chief clerk who was in charge at the time these obligations were incurred, is no longer with us. The only knowledge of this claim that we have is that the merchandise was delivered to us and that the claim is in order and should be paid by the State.”

In No. 2885, that of Oscar F. Baker and Harry A. G-ehlbach, partners doing business under the firm name of Baker & Gehlbach vs. State of Illinois, it appears that the claim was filed April 20, 1936, for the sum of $23.45. The complaint alleges that in June, 1935, the claimants sold and delivered to the respondent at the Lincoln State School and Colony, certain merchandise set forth in Exhibit “A”. This merchandise consisted of numerous small items, including two pump leathers, mower repairs, Moline bean drill gear, wrist pin and nut, 6 slats, 1 pitman, 1 box rivets, 2 boxes of rivets of different sizes, 6 reel arms, 50 sections, 6 reel slats, 1 knife, 1-YF677 complete, 24 bolts, all of which were furnished in June, 1935, and totalling $23.45. The bill was presented to the officers of said State School and Colony on several occasions and on some occasions it was ignored and on other occasions said officers promised that it would be taken care of and on the last occasion said officers informed claimants that the fund from which payment should have been made had lapsed. A similar report was made by the managing officers as was made in No. 2884.

In No. 2894, that of Frank J. Pfau, Jr., doing business under the firm name and style of Pfau’s Drug Store vs. State of Illinois, it appears that the claim was filed May 12, 1936, for the sum of $9.62. The complaint alleges that during June, 1935, the claimant sold and delivered to the respondent at the Lincoln State School and Colony certain merchandise consisting of drug supplies. Proper statement of account is attached to the complaint, and the managers of this School and Colony admit that the merchandise was furnished, but that the fund out of which this merchandise should have been paid, had lapsed, and therefore this suit was filed.

In No. 2895, that of Charles Hoelscher, doing business under the name and style of Hoelscher Bros. Garage vs. State of Illinois, it appears that the claim was filed on May 12,1936, for the sum of $21.73. The complaint alleges that during the month of December, 1934, February, March, April and June, 1935, claimant sold and delivered to the respondent at the Lincoln State School and Colony, certain merchandise as shown in Exhibit “A”. The same charges were made in this complaint, and the receipt thereof by the school is admitted.

It has been the holding of this court that where it is conceded that the claimants rendered services and furnished supplies to the State, and have not been paid therefor, and the amount is unquestioned, an award will be made for such services and supplies. Journal Printing Co. vs. State, 8 C. C. R. 673; Schreiber Lumber Co. vs. State, 8 C. C. R. 381, and Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165.

It appears that the Attorney General has carefully investigated these claims because the person who was chief clerk at the time these claims arose, is no longer in the employ of the respondent, but Mr. W. F. Meyer, an auditor- for the Department, was assigned to acting chief clerk of the school, and it was on an investigation made by him and in reports made by him in the name of Dr. Waters to Mr. Bentley that the statements were made that the merchandise mentioned in each of the claims “was delivered to us, and the claim is in order and should be paid by the State. ’ ’

We, therefore, make an award in No. 2884, that of Central Illinois Electric and Gas Co. vs. State of Illinois, in the sum of $493.25; in No. 2885, that of Oscar F. Baker and Harry A. Gehlbach vs. State of Illinois, in the sum of $23.45; in No. 2894, that of Frank J. Pfau, Jr. vs. State of Illinois, in the sum of $9.62; in No. 2895, that of Charles Hoelscher, doing business under the name and style of Hoelscher Bros. Garage vs. State of Illinois, in the sum of $21.73.


author: Me. Justice Linscott

text:
    (No. 2864
    Edward Clifton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1937.

    E. W. Collord, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

On March 21, 1936, the claimant filed his petition with the clerk of this court, averring that on the 29th day of October, 1934, while in employ of the Department of Public Works and Buildings of the State of Illinois, in the State Highway Department, making repairs to certain fences along the right of way of Route No. 131 in Douglas County, he was injured by the overturning of a truck upon which he was riding, and that the truck was overturned on account of the negligence of his fellow employees and that as the result of the negligence of the State, through its agents and servants, he suffered divers injuries, consisting of a fracture of the right arm, and that the vertebrae of his neck and back were dislocated, his back being severely wrenched and his head severely injured, all of which caused him great pain and suffering.

Claimant also avers that he had been on relief up to that time, and avers that at the time of the injury, he was earning $15.00 per week, and he filed a Bill of Particulars claiming loss of earnings from October 29, 1934 to February 2, 1935, being 14 weeks at $15.00 per week, or $210.00, and also claims $1,790.00 for pain and suffering.

The Attorney General has made a motion to dismiss this claim for the reason that claimant seeks to recover on account of the alleged negligence of the respondent as at common law, and that he cannot recover under the Workman’s Compensation Act for the reason that no claim for compensation was made within six months or filed within one year after the date of the alleged accidental injury.

By an enactment of the Legislature, the State of Illinois is liable under the Workmen’s Compensation Act when the injuries sustained come within the employment mentioned in the Compensation Act. It has been repeatedly held by this court that the State is not liable for negligence. A private employer is not liable for negligence when his business is such that it comes under the Compensation Act. See Section 6 of the Workmen’s Compensation Act" of this State. In no instance can damages be allowed under the Compensation Act for pain and suffering. We cannot treat this as a claim for compensation.

Section 24 of the Workmen’s Compensation Act declares that no proceeding for compensation shall be maintained unless claim has been made within six months after the accident. This section concludes with the proviso that, in any case, unless application for compensation is filed within one year after the date of the injury or within one year after the date of the last payment of compensation, the right to file an application therefor shall be barred.

The making of a claim for compensation within the prescribed period is jurisdictional and a condition precedent to the right to maintain a proceeding under the statute. (American Car and Foundry Co. vs. Industrial Com., 335 Ill. 322; City of Rochelle vs. Industrial Com., 332 Ill. 386; Inland Rubber Co. vs. Industrial Com., 309 Ill. 43; Ideal Fuel Co. vs. Industrial Com., 298 Ill. 463; Ohio Oil Co. vs. Industrial Com., 293 Ill. 461; Central Car Works vs. Industrial Com., 290 Ill. 436; Bushnell vs. Industrial Board, 276 Ill. 262; Haiselden vs. Industrial Board, 275 Ill. 114.)

It does not appear that any compensation was paid, or any claim made or notice given by the claimant to the respondent, and, therefore, the motion of the Attorney General must be sustained.