text:
    Nathan E. Gray v. State of Illinois.

      Opinion filed December 17, 1914.

    1. Non-liability of State — when an award will be refused. Claimant was employed as guard at the Southern Illinois Penitentiary and was injured by reason of the wilful negligence of one of the convicts. Held, that no award should be made.
    2. Respondeat Superior — doctrine of does not apply to State. The doctrine of respondeat superior is not applicable to the State, and the State in the absence of statute is not liable for the negligence of its servants.
    3. Jurisdiction — Act creating Court did not enlarge State’s liability. The Act creating the Court of Claims did not enlarge the liability of the State. (O’Donnell v. State, 1 C. of C. R., 255;Schmidt v. State, 1 C. of C. R., 76, cited by the Court.)
    4. Same- — when may allow claim. The legislature is vested with the discretion to make allowances for the relief of individuals, whether a legal or equitable liability attaches or not, but the Court of Claims may only make an award when a legal or equitable liability is shown.
    5. Governmental Function — State in conducting penitentiary exercises. The State in conducting the Southern Illinois Penitentiary exercises a governmental function.
    Creighton and Thomas, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   Claimant was employed as keeper at the Southern Illinois Penitentiary, and on October 26, 1912, was in charge of about fifty prisoners who were working in and about the rock quarry and crusher. He received his injury near the crusher, which was at a point about 300 feet from where rock was being quarried; a track extended from the quarry to the crusher on an incline from the quarry and with a curve near the crusher. Cars loaded with stone from the quarry were run by gravity down the incline to the crusher. There were no brakes on these cars, but the speed was controlled by convicts riding on them, and using a board or gas pipe which they would press against the wheels over the frame of the car. A man standing on the track at the point where claimant met his injury, could not see a car, because of the curve around the crusher, until it was about 30 feet from him. On the day in question, claimant was standing on the track in front of a car which had been dumped, when another car loaded with stone came down the incline without any one upon it, and collided with the standing car and caught the right leg of the claimant between the two cars, crushing it so that eventually it required amputation.

Two prisoners, Hodges and Wilson, had been in charge of the loaded car and, instead of waiting for a signal to start it, they brought it down the track, and as it came to the curve they jumped off, allowing it to collide with the other car. Over objection, a witness testified that a prisoner had told him, that he had remonstrated with Wilson over letting the car run wild, but that Wilson had said, that he would let it go and hit claimant, at the same time using an oath directed at claimant. Claimant was not in a position to see the car coming, and because of the noise made by the crusher could not hear it. Some one in the vicinity called to him, and he tried to get out of the way but could not. Claimant has been put to an expense of about $525.00.

Claimant in his brief refers to section 19, article 2, of the Constitution as sustaining his position, to the effect that “the declared public policy of the State of Illinois is that every citizen shall have redress under its laws for every wrong suffered or injury received by him.”

As an abstract statement this is correct, but it is incumbent upon us to determine whether the wrong suffered or injury received by claimant in this case, is one for which the State of Illinois is in any way responsible.

Claimant refers us to the Act creating the Court of Claims, and has very ably argued to the effect that the Act which creates this Court enlarges the liability of the State, and has referred us to numerous instances wherein the legislature has made appropriations for the relief of persons injured. On the other hand, the State defends on the theory that the State is not bound to respond in damages for torts of those whom it employs, and much less is it bound to respond in damages for torts committed by violators of the law who are committed to institutions of the State, and that the State, when acting in its sovereign capacity, is not responsible for wrongs perpetrated by its officers, agents or employees. This Court has repeatedly held, that the Court of Claims Act does not increase or enlarge the liability of the State, but provides only a forum wherein claims are to be heard and determined. As said in O’Donnell v. State, 1 C. of C. R., 255, cited by us with approval in Taylor v. State, October Term, 1913: “We can allow claims against the State only in cases where by express statutory provision the legislature has created a liability on the part of the State for the acts of its agents; or rather, waived the exemption of the State from such liability.’’

In Schmidt v. State, 1 C. of C. R., 76, 79, 80, the then Commission of Claims, under the law creating it, which, however, was in that particular the same as the law creating the Court of Claims, said:

“The law creating this Commission does not undertake to create a new liability against the State but provides a method by which claims against the State may be heard before this Commission, and the claim rejected or an award made in favor of the claimant. The statute creating this Commission, after reciting the various classes of claims of which the Commission might have jurisdiction, among which may be said to be included claim of this petitioner, provides: ‘And such Commission shall hear such claims according to its rules and established practice and determine the same according to the principles of equity and justice, except as otherwise provided in the laws of this State’.”

As in the Schmidt case, so here:

‘‘ The point has been pressed in argument by counsel for claimant that the legislature would have the right in a case of this kind, in its discretion, to allow a reasonable sum to persons injured, making an appropriation for its payment, although the claim was, strictly speaking, neither a legal or equitable claim, and that the intent of the Act creating this Commission was to transfer to this Commission the same discretionary power that the legislature would have; or, in other words, that the Commission would be justified although believing the claim was neither an equitable or legal claim against the State, in its discretion to make an award against the State and in favor of claimant. To. this proposition we cannot assent. It is our understanding that in the use of the language ‘to determine the same according to the principles of equity and justice’ is meant and used with a legal signification and that this Commission has no power to make an award in any case unless the facts show a legal or equitable claim against the State. We do not believe it was the intention of the legislature to leave it discretionary with the Commission to make an award in favor of the claimant regardless of the question as to whether or not he had a legal claim against the State.” It is our opinion that the Commission in the Schmidt case, correctly stated the law and we are inclined to follow the opinion in that case herein.

That the legislature has the right to make awards for the relief of individuals, whether there be a legal or equitable liability or not, is undoubted, but the legislature has not given to us the power to make awards, excepting in such cases as there is legal or equitable liability on the State, and if it in its wisdom sees fit to make an award where there is no such liability, that fact cannot affect our judgment because we are called upon to determine only whether or not liability exists.

The State in conducting the Southern Illinois Penitentiary is exercising governmental function, and there is no statute wherein the State assumes responsibility for injuries received by employees at this institution, and in consequence, we must hold that the State is not liable. This accident happened prior to the adoption of the "Workmen’s Compensation Law and same was not considered herein.

For the purpose, however, of determining whether or not this claim should be rejected or under the power given us by the statute rejected without prejudice, we have considered the facts in the case as shown by the evidence. There is no defect of any kind alleged in any of the machinery, cars, track or anything else that caused or contributed to cause the injury complained of. The fact that there was no brake on the car in question is not complained of, and in fact claimant shows that just as effective a way was provided for checking the speed and stopping the car. Claimant was undoubtedly injured, as his own evidence shows, through the wilful act of a convict. Claimant himself was a keeper and had this particular convict under his charge. He knew the class of men he was dealing with, and he was there to control and manage them. Of course, a parallel case wherein one. standing in the position of the State, who might not assert the defense of the exercise of governmental function, would be hard to find. The case is not the same as a foreman for a manufacturing concern, we will say, injured through the wilful act of an employee. The claimant himself here was guilty of no negligence; neither can it be said that the State was. The most that can be said for claimant is, that he was injured while in the service of the State, and that the policy of the State at the present time is to care for its injured employees, but, while the policy as expressed in laws of the present day would lead us to hesitate about rejecting this claim in toto, at the same time, it would not justify us in holding that anything should be allowed to claimant.

Claimant has not made out snch a case as would entitle him to a judgment in a court of law against an employer under similar circumstances, nor has he, in our judgment, made out such case as should entitle him to an award in this Court.

The claim is accordingly rejected.


source: Caselaw Access Project

license: Public Domain

text:
    Peter Hemmerling, alias Fred Miller v. State of Illinois.

      Opinion filed December 17, 1914.

    1. Statute of Limitations — unliquidated claims must be filed within two years from accrual. “* * * Hereafter all unliquidated claims against the State shall be proved up and filed as above, within two years from the time such claim may have arisen; and any claim not presented and proved up as above and filed, shall be forever barred from payment by the State.” Hurd’s Rev. Stat., 1913, chap. 83, par. 31, p. 1578.
    2. Same — exceptions to general statute. “If the person entitled to bring an action, mentioned in the nine preceding sections, is, at the time of the cause of action accrued, within the age of twenty-one years, or if a female, within the age of eighteen years, or insane, or imprisoned on a criminal charge, he or she may bring the action within two years after the disability is removed.” Hurd’s Rev. Stat., 1913, chap. 83, par. 21, p. 1577.
    3. Same — exceptions—none as to claims against State. There are no exceptions to the running of the Statute of Limitations in the Court of Claims.
    4. Statutory Construction — special statute on subject will prevail over general. The first quoted statute is special and the second general, and it is a rule of statutory construction that “the special mention of one thing, indicates that it was not intended to be covered by a general provision which would otherwise include it.”
    5. Governmental Function — State in conducting penitentiaries exercises. The State in conducting its penitentiaries exercises a governmental function, and is not liable for injuries sustained by convicts in such penitentiaries.
    6. Practice — Court of Claims not a court of review. The Court of Claim's is not a court of review, and it cannot decide whether a commitment to the penitentiary is faulty or not.
    7. Non-liability of State — State not liable for loss of time by convict. The State is not liable for loss of time by a convict who may have been erroneously sentenced to prison.
    8. Respondeat Superior — doctrine of not applicable to State. The doctrine of respondeat superior does not apply to the State.

      E. W. Austin and William Chones, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State:
    Statutes of Limitation are regarded as statutes of repose, not of presumption.

      Sibert v. Wilder, 16 Kan., 176, 22 Am. Rep., 280; Dwight v. Clark, 7 Mass., 515; Spuryer v. Hardy, 4 Mo. App., 573.
    It is within the power of the legislature to fix the period within which actions shall he brought, without making any exceptions.

      Lewis v. Pawnee Bill’s Wild West Show Co., 6 Penn. (Del.), 316, reported in 16 Am. & Eng. Ann. Cas., 903.
    Imprisonment of the claimant is not a disability unless excepted in the statute.
    25 Cyc., 1264; Bledsoe v. State, 1 Baxt. (Tenn.), 312; Tallman v. Mutual Fire Ins. Co., 27 U. C. Q. B., 100; Turner v. Shearer, 6 Gray. (Mass.), 427.
    Where there are general Statutes of Limitation containing certain exceptions, and special Statutes of Limitation containing no exceptions, in construing such special statutes, the same will be construed to contain no exceptions, even though the general statutes may include the subject-matter contained in the special statute.

      Lewis v. Pawnee Bill’s Wild West Show Co., supra; Warfield v. Fox, 53 Pa. St., 382; Peterson v. Del. River Ferry Co., 190 Pa. St., 364, 42 At. Rep., 955; Spees v. Boggs, 204 Pa. St., 504, 54 Atl. Rep., 346; Morgan v. Des Moines, 60 Fed., 208, 19 U. S. App., 593, 8 C. C. A., 569; McIver v. Ragan, 2 Wheat., 25, 4 U. S. (D. Ed.), 175; Vance v. Vance, 108 U. S., 514; Amy v. Watertown, 130 U. S., 320; Madden v. Lancaster Co., 65 Fed., 188; Aekiss v. Satchell, 104 Va., 700, 52 S. E., 378; Walker v. U. S., 139 Fed., 409; Id., 148 Fed., 1022.
    The doctrine of respondeat superior does not apply to the State.

      Schmidt v. State, 1 Court of Claims Rep., 76; Pryor v. State, 1912 Court of Claims; Alexander v. State, 1 id., 214; Brewster v. State, 1 id., 215; Ross v. State, 1 id., 175; Belt v. State, 1 id., 266; Wallace v. State, 1 id., 268; Fisher v. State, 1 id., 270; Johnson v. State, 1 id., 208; Jorgensen v. State, 1911 Court of Claims; Story on Agency, sec. 319-322 ; Alamango v. Supervisors of Albany Co., 25 Hun., 551; Hill v. Boston, 122 Mass., 344; Gibbons v. U. S., 8 Wall., 269; U. S. v. Kirkpatrick, 9 Wheat 720; Lewis v. State of N. Y., 96 N. Y., 71; Sipple v. State, 99 N. Y., 284; Clodfelter v. State. 86 N. C., 51: State v. Hill. 54 Ala., 67.
   Claimant, a resident of Chicago, was convicted on January 19, 1901, in the criminal court of Cook County, of the crime of rape and sentenced to the penitentiary at Joliet. He was paroled on August 10, 1911, and discharged on May 13, 1912.

While in the penitentiary, on December 9, 1903, he was put to work on a shaper machine used in shaping . chair-seats, which he alleges was defective and out of order, as a result of which, he received an injury to his right hand, consisting of the amputation of the first finger, and stiff joints in the second and third fingers. He alleges that the State, through its agent, had knowledge of the defective condition of the machine, a failure in the duty in inspection and repair and keeping the same in safe condition; that he himself did not know of such condition, and was in the exercise of due care for his own safety at the time. In a statement, claimant claims damages for injury thus sustained in the amount of five thousand dollars. He also claims that he was improperly sentenced to the penitentiary, in that, the verdict of the jury did not fix any time of imprisonment and, that the trial judge sentenced him in accordance with the terms of the verdict, and that it was the duty of the jury to fix the term. For loss of time at seventy-five dollars per month, he claims nine thousand four hundred fifty dollars.

The State sets up as a defense, that the claim for injuries is barred by the Statute of Limitations; that the doctrine of respondeat superior does not apply, and also that there is no liability on the State for the alleged error in the matter of imprisonment.

It is provided in the statute that “hereafter all unliquidated claims against the State shall be proved up and filed as above within two years from the time such claim may have arisen, and any claim not presented and proved up as above and filed, shall be forever barred from payment by the State. ’ ’ Revised Statutes, 1913, chapter 83, paragraph 31. In paragraph 21 of chapter 83 it is provided, “if the person entitled to bring an action mentioned in the nine preceding sections, is, at the time of the cause of action accrued, within the age of twenty-one years, or if a female within the age of eighteen years, or insane, or imprisoned on a criminal charge, he or she may bring the action within two years after the disability is removed.” The last quoted section of the statute has reference to the general law with relation to limitation of personal actions, and would apparently by express terms exclude the first quoted section which is not included within the “nine preceding sections,” but appears in an entirely independent Act of the legislature. The last quoted section is general in its terras, and the first quoted is particular. It is a rule of statutory construction that “the special mention of one thing indicates that it was not intended to be covered by a general provision which would otherwise include it,” and “where there is in the same statute a particular enactment, and also a general one, which, in its most comprehensive sense would include what was embraced in the former, the particular enactment must be operative and the general enactment must be taken to affect such cases within its general language as are not within the provisions of the particular enactment.” C. & N. W. Ry. Co. v. City of Chicago, 148 Ill., 159.

We are of the opinion, that paragraph 31 of the Statute of Limitations, as above quoted, applies to the case at bar, and that the claim for personal injuries is barred.

The decision of this point disposes of the other point raised as a defense, with reference to the liability of the State for the negligence of its agents, but the question has been decided so many times in this Court adversely to the contention of claimant here, that it will suffice to say in this case, that the State, exercising governmental functions solely in the conduct of the penitentiary, as it does, can not be held to respond in damages for injuries sustained by convicts.

The decision of the former questions does not decide the remaining question, however. This Court is not a court of review in any sense, and whether or not the commitment to the penitentiary was in any way faulty, is not for this Court to decide. This was a point which could have been raised by appropriate action in a court of general jurisdiction, and we must take the finding of the circuit court as final and conclusive. Claimant himself does not urge the point seriously, however, because the proof to support it is lacking.

In addition to what has been said, it may be also stated that the State cannot be held liable for loss of time of a convict who may have been erroneously sentenced or imprisoned.

It is the judgment of this Court that the claim be rejected.


text:
    Mary Jane Hess, in her own right, and as Executrix of the Last Will and Testament of Christopher J. Hess, Deceased, v. State of Illinois.

      Opinion filed December 17, 1914.

    1. Inheritance Tax — exemptions should be deducted in determining tax rate. The inheritance tax appraiser appointed by the county court of Cook County fixed the value of the property at $105,010.91. An exemption of $20,000.00 was allowed and the tax fixed on a two per cent basis. Within six months the tax was paid under protest, saving five per cent. On appeal to the county court, the court reduced the tax in accordance with the holding in People v. Ullmann, 263 Ill., 528. Held, an award should be made.
    2. Practice — claims filed subsequent to May 1. Where a claim is filed subsequent to May 1, and addressed to the following session of Court, the Court will hear the same, if the Attorney General consents to such hearing.
    3. Interest — State does not pay. The State is not chargeable with interest upon moneys erroneously paid into the State treasury.
    Hoag and UUmann, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   Christopher J. Hess, a resident of Cook County, died on March 29, 1913, testate, devising and bequeathing all his property to his widow, the claimant herein.

His will was probated in the probate court of Cook County on April 21, 1913, and letters testamentary were issued to claimant.

The inheritance tax appraiser appointed by the county judge of Cook County fixed the value of the property at $105,010.91. After allowance of statutory exemption, the tax was fixed by the county judge at $1,700.22, being figured on a two per cent basis. To save five per cent on payment within six months, as provided by statute, this amount, less five per cent, was paid under protest to the county treasurer, who in turn transmitted the money to the State Treasurer. The amount paid was $1,615.21. An appeal was taken to the county court of Cook County, which court on August 21, 1914, entered an order fixing the tax at $850.00, in accordance with the opinion in the case of In re Estate of Frederic Ullmann, deceased, 263 Ill., 528.

Claimant contends that she should be allowed in this Court, one-half the amount paid by her to the county treasurer. Demands were made upon both the county treasurer and State Treasurer by claimant, and this claim was filed by stipulation with the Attorney General since the first of May, 1914, but made returnable at this term of Court. Claimant has done all required of her by law to secure a refund, and this Court will consider this case at this term.

For the reason stated in the claim of Elizabeth Ullmann v. State, we will not allow interest on the amount erroneously paid, but claimant is entitled to have returned to her so much of the tax as was erroneously paid, and it is accordingly the judgment of this Court that she be awarded the sum of $807.60.


text:
    Sadie Jasper, Administratrix of the Estate of John Jasper, Deceased, v. State of Illinois.

      Opinion filed December 17, 1914.

    1. Governmental Function — State in conducting hospital exercises. The State in conducting the Anna State Hospital exercises a governmental function, and is not liable for the death or injuries to those it employs.
    2. Respondeat Supebiob — rule of does not apply to State. The rule of respondeat superior does not apply to the State.
    3. Pbactice — claimant not precluded. Under the facts in this case, the Court does not preclude the claimant.
    James Lingle, for Claimant.
    P. J. Lueey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   John Jasper, an employee of the State in the Anna State Hospital, was killed in a dough-mixing machine in the bake-room at the hospital on May 22, 1913. Letters of administration were subsequently issued to the claimant in the county court of Union County.

The facts in evidence with reference to the accident wherein claimant’s intestate met his death are as follows : He had been employed as a baker at the hospital for about seven years, and had been head baker, but at the time of the accident the bake-room was in charge of the first cook, and decedent was doing the work without an assistant. The only person present in the room at the time of the accident was a patient at the hospital, and nobody who saw the accident has testified in this case.

Decedent alone was in charge of the mixer and did all of the baking of bread, etc. Claimant charges that the force doing the work was inadequate, notwithstanding, that the work had greatly increased, and that as a result, it became necessary for the decedent to do his work in the particular way which caused his death.

Decedent was working on a dough-mixer which was about five feet ten inches high, three and one-half feet square and had a capacity of three barrels. In this mixer there were two iron arms and an iron shaft. In mixing the dough, the arms revolved about ten revolutions to the minute, and came to within about one-eighth of an inch of the sides of the mixer. The dough was thrown against the sides of the tub, and about every three or four minutes, it had to be scraped oft by means of a dough knife in the hands of the operator. Decedent, to do this work, stood on an iron rod on the mixer, would hold on with one hand and scrape with the other. The mixer was run by electric power and was operated by means of a switch in front of the machine and near the floor. Claimant complains that there was no fuse by which the mixer would automatically stop when it received an overload, contending, that if such fuse had been used when decedent was caught in the mixer, the fuse would have blown out and caused the machine to stop, and decedent would have met only with an injury instead of death. It is also shown by the evidence of one witness, that it is usual for bread-mixers to be so adjusted.

On the morning that decedent met his death, one witness had just stepped from the room and upon returning five minutes later discovered that deceased was in the mixer. The mixer was not running, the patient having apparently thrown the switch. When Mr. Jasper was taken from the mixer he was dead. The dough knife was found in the mixer and it is apparent that deceased was caught in the mixer while in the act of scraping the dough from the back side of the mixer.

In addition to charging negligence in failure to furnish sufficient, help, claimant charges that the State failed to use reasonable care to provide safe machinery, and also charges negligence in failing to guard the machine.

The State argues that it is not liable because it was exercising a governmental function in conducting the hospital, and that there is no proof of negligence which would warrant a recovery, were the former defense not interposed.

On the first proposition advanced by the State, in view of the repeated decisions of this Court upon the same subject, we must hold that in this case, the State cannot be held to respond in damages. In Taylor v. State, opinion filed May 22, 1914; Jorgenson v. State, October Session, 1911, and Allen v. State, October Session, 1906, among many other opinions filed by this Court, this question has been determined.

In the absence of a statute assuming liability by the State for damages sustained in this institution, there is no law which would warrant our making an award for the claimant in this case. Even though the State has provided this Court as a forum, wherein claims shall be heard and determined in manner as provided by law, we have uniformly held to the correct principle, that by so doing, it had not undertaken liability or increased or enlarged its liability in any particular.

Counsel for the State in this case have cited the case of Maia v. Eastern State Hospital, 97 Va., 507, 47 L. R. A., 577, and the language in that case well states the reason for the defense interposed by the State:

“If a municipal corporation, which has a two-fold character, one public and the other private, is exempt from liability for the negligence of its agents when in the exercise and performance of its powers and duties as an agency of the government, a public corporation which was created and exists for no other than governmental purposes must necessarily be exempt from such liability. Otherwise, there would be this anomaly: That for such negligence a corporation created partly for governmental purposes would be exempt from liability, while one created wholly for such purposes would not be, when the reason for such exemption is solely because it was in the exercise of governmental functions when the negligence occurred.”

Of course, there is no question but that the State, in the conduct of the Anna State Hospital, was exercising solely a governmental function.

But the State has given to this Court power to reject a claim so that claimant shall be precluded from further remedy, or to reject without prejudice, so that claimant may present her claim to the legislature.

For the purpose of ascertaining whether or not this claim is of such nature that it should or should not be precluded by the judgment of this Court, we propose to investigate further.

It is shown by the evidence, that claimant’s intestate could have done the work by stopping the machine and scraping off the dough and again starting the machine. This would have necessitated delay in the work without doubt, and under the circumstances would have subjected decedent at least to censure. It is not apparent from the evidence how any guard would have prevented the accident. It might be true that decedent might not have met his death, if a suitable fuse had been used, yet this goes into the realm of speculation. One of the witnesses testified, that he might have had his arm broken, but of course even this might result in death. He might also have had his neck broken. The evidence states that the insane patient probably turned off the power when decedent was caught in the machine. He did no more nor less than another employee could or would have done, and we cannot entirely reconcile this statement with the charge that there were not sufficient employees.

On the other hand, this is a case which strongly appeals to the sympathies of the Court. Were this a' trial before a jury, we, as lawyers, believe we could predict what the average jury would find on these questions of fact. Shortly after the happening of this accident, the State adopted the policy of compensating employees and dependents of deceased employees for injury or death, while in the service of the State. Claimant in this case missed the benefit of this law by a very few days. Under the circumstances we would not feel justified, if by our judgment we precluded claimant from presenting her claim to the legislature, and accordingly this claim is rejected, without prejudice to the right of claimant, to present her claim to the legislature.


text:
    Albert L. Lincoln, Executor of the Last Will and Testament of Mary Lewis Williams, Deceased, v. State of Illinois.

      Opinion filed December 17, 1914.

    Inheritance Tax — when an award will be made. In this claim, after the inheritance tax had been paid, an appeal was prayed from the order of the county judge fixing the inheritance tax to the county court, which court reduced the tax. Demands were made on the State Treasurer and county treasurer for a refund of the tax. The claimant having complied with the law in every respect is given an award.
    Stead, Lincoln and Fitch, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   On the 13th day of May, 1913, the county judge of Cook County, Illinois, entered an order in the estate of Mary Lewis Williams, deceased, approving a report of the appraiser in connection with property values of said estate, and assessed an inheritance tax thereon of six hundred nineteen and twenty-seven hundredths ($619.27) dollars, with interest at the rate of six per cent from September 12, 1912.

Claimant paid this amount to the county treasurer under protest, and prosecuted an appeal from said order of the county judge to the county court of Cook County,, for the purpose of having the amount of inheritance tax reduced.

Upon a hearing of this cause in the county court, a final order and judgment was entered finding that the county judge erroneously assessed a tax of six hundred nineteen and twenty-seven hundredths ($619.27) dollars, and said order further found that the sum of four hundred ($400.00) dollars, with interest amounting to sixteen ($16.00) dollars, was the correct and legal assessable tax in said estate.

Said order also decreed, that the executor had erroneously paid to the State of Illinois, the sum of two hundred twenty-eight and four hundredths ($228.04) dollars, in excess of the amount that should have been paid by him on account of said estate.

After securing the final order in the county court, claimant made a written demand upon the county treasurer and upon the State Treasurer for a refund of the taxes erroneously collected from him, but has been unable to collect same.

He has complied with the law in every respect in order to obtain the refund to which he is entitled, and we, therefore, make an award in his favor for two hundred twenty-eight and four hundredths ($228.04) dollars.


text:
    Anna Magan v. State of Illinois.

      Opinion filed December 17, 1914.

    Inheritance Tax — facts held to justify an award. In this case, the tax was assessed at the two dollar rate, from which an appeal was prayed, and after the decision in the Ullmann case, 263 Ill., 528, the tax which had been paid was reduced by the county court of Cook County. Held, that an award should be made.
    Stead, Lincoln and Fitch, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assist* ant Attorney General, for State.
   The claim in this case is for a refund of inheritance tax, claimed to have been erroneously and excessively paid to the county treasurer of Cook County, on the 15th day of June, 1914, and is made under the provisions of section 10 of an Act to tax gifts, legacies, inheritances, etc., June 14, 1909.

Thomas Conlin, who was a brother to claimant, died testate on the 21st day of February, 1914, a resident of the city of Chicago, State of Illinois, and claimant was duly appointed one of the executrixes with the will annexed, of the estate of said deceased, by the probate court of Cook County, and duly qualified. An inheritance tax proceeding was had under the direction of the county judge of Cook County; the appraiser filed his report with the county judge who entered an order on June 12, 1914, fixing the cash value of the several estates, gifts, transfers, etc., and assessing the total inheritance tax thereon in the sum of $1,635.35, all of which money was paid to the county treasurer of Cook County, and was transmitted by him to the State Treasurer of the State of Illinois; and afterwards, within a few weeks, claimant petitioned the county court for an appeal which was approved and allowed to the county court. A decree was entered by agreement based upon the decision of the Supreme Court of the State of Illinois, in the case entitled In re Estate of Fred Ullmann, deceased, 263 Ill., 528, wherein it was decided that the exemption of $20,000.00 shall first be deducted from the total amount of the share of the beneficiary, before the rate of tax is determined. This decision resulted in reducing the taxable cash value of the share of this claimant under $100,000.00, and fixed the rate of tax at one per cent instead of two per cent, as was erroneously fixed in the order entered by the county judge July 22, 1914.

. This decree found, that the total legal tax due and assessable against the claimant was $817.87, and that she had paid an excessive, illegal and erroneous tax to the county treasurer of Cook County for and on behalf of the State of Illinois of $776.99, that the same should be refunded and paid to the said claimant.

Thereupon, claimant made application to the county treasurer of Cook County for a refund of the amount of the inheritance tax erroneously paid by her, and was notified that it had been paid to the State Treasurer, whereupon, on July 22, 1914, she made application to the State Treasurer for a refund, but was informed that in the absence of an appropriation, it was impossible to entertain the demand.

We find, that the claimant has paid to the State an erroneous and excessive tax, and, that she has in all respects complied with the law to secure the refund, and, that she is entitled to have returned to her by the State the sum of $776.99. We, therefore, accordingly award claimant the sum of seven hundred seventy-six dollars and ninety-nine cents ($776.99).


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    Celinda McCullough, Adiministratrix, and John McCullough, Administrator, of the Estate of James S. McCullough, Deceased, v. State of Illinois.

      Opinion filed December 17, 1914.

      Contracts — when law will imply promise to pay. Where a State officer is obliged to lay out and expend sums of money in defending a suit brought against him, the basis of which suit is the doing of some act or acts in his official capacity, in order to safeguard the interests of the State, equity will require that he be reimbursed the amount of his necessary outlay.
    Smith and Friedmeyer, for Claimants.
    P. J. Lueey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   The claimants are the legal representatives of James S. McCullough, deceased, who was Auditor of Public Accounts of the State of Illinois, from January 1897, to January 1913.

Charles W. Spaulding, a former treasurer of the Board of Trustees of the University of Illinois, defaulted with a large amount of money that was turned over to him as treasurer of that institution.

The trustees of the university, in conjunction with the Attorney General of the State, endeavored to compromise the matter, and after considerable negotiations, Spaulding turned over to the trustees and one Francis W. McKay, securities, stocks and bonds of various companies, and deeded to the trustees, his interest in certain lands in Chicago, Illinois, Idaho and other places, in trust, that the same be administered so that the proceeds should be applied for the reimbursement of his defalcations.

In the year 1897, an Act was passed creating what was known as the Spaulding Commission, which consisted of the Governor, Auditor and Treasurer of the State of Illinois. The commission was empowered and directed to handle the property turned over by the said Spaulding, and the funds realized from the sale thereof, were to be turned into the State treasury.

Spaulding was tried and convicted for his defalcation, and after his release from prison started suit against the University of Illinois and others for an accounting. This suit was dismissed, and later he commenced another suit against James S. McCullough and several other former officers of the State, in which he charged a violation of their trust relative to the property turned over to them.

This suit was finally compromised and settled by an Act of the legislature, approved June 26,1913, in which ten thousand ($10,000.00) dollars was appropriated for the purpose of settling and adjusting Spaulding’s claim.

It appears from the record in this case, that when these suits were started against James S. McCullough and others, the said McCullough retained counsel to defend said suits, and as a result, it became necessary for him to pay from his own funds, nine hundred thirty-six and sixty hundredths ($936.60) dollars for attorney fees and other expenses incident thereto.

Claimants now ask that we make an award for this amount, and insist that the money so paid out and expended by the said McCullough was not for his benefit, but that everything that was done by him in this transaction, was done as an officer of the State in his official capacity for the benefit of the State as required by law.

Equity would require that the estate of James S. McCullough, deceased, be reimbursed for the money expended by him in connection with these transactions, and we therefore make an award in claimants’ favor, in the sum of nine hundred thirty-six and sixty hundredths ($936.60) dollars.


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    Cordova L. Peniston, Executor of the Last Will and Testament of May Buckingham, Deceased, v. State of Illinois.

      Opinion filed December 17, 1914.

    1. Inheritance Tax — facts held sufficient to justify an award. In this case the executor prayed an appeal from the order of the county judge fixing the tax to the county court, which court reduced the tax; thereupon, the State appealed to the Supreme Court, and the Supreme Court, in effect, sustained the county court. (People v. Peniston, 262 Ill., 191.)
    2. Practice — claims filed subsequent to May 1. Where a claim is not filed prior to the first day of May, the Court may hear the same at the following October session, in case the State enters its appearance and consents to a hearing.
    Holt, Cutting and Sidley, for Claimant.
    P. J. Lueey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   Cordova L. Peniston, as executor of the last will and testament of May Buckingham, deceased, has filed in this cause a claim for refund of $4,622.96, on account of over-payment of inheritance tax. May Buckingham died testate in Chicago, on October 20,1912. Her will was duly admitted to probate, and it contained, among others, the provision, that all inheritance and succession taxes should be paid out of the general estate, and that none of the specific legacies or bequests should be diminished by the deduction of any sum for such taxes. An inheritance tax appraiser was appointed, and he duly made report, which was confirmed and approved by the county judge of Cook County, April 17, 1913. This report found the fair market value of the real estate at $107,450.00, and of the entire estate of $425,-663.24, and the total tax was fixed at $20,026.87.

For the purpose of saving five per cent discount, if payment be made within six months of decedent’s death, the executor paid this tax, less the discount, or $19,025.53, to the county treasurer of Cook County on April 18, 1913, under protest.

An appeal was taken from the order of the county judge to the county court, and on July 24, 1913, that court entered an order placing the value of the real estate at $99,450.00, but not changing the finding as to the value of personal property. The tax, however, on the several bequests and devises in the will was found by the order of the county court to be $15,587.94, instead of the amount fixed by the county judge.

The State of Illinois then appealed to the Supreme Court and the case was there reversed and remanded to the county court (People v. Peniston, 263 Ill., 191), whereupon, additional evidence being heard, the latter court entered a decree on July 22, 1914, again finding the values of the property as previously fixed and finding also that the tax of $20,026.87 fixed by the county judge, was excessive, unreasonable and unjust and finding also, that the tax that should have been paid on April 18, 1913, was $14,855.00, being the tax as fixed, $15,587.94, less five per cent. This order of the county court stands as a final order.

Claimant has in all particulars complied with all requirements of the law with reference to securing a refund of the tax erroneously paid. No appropriation has been made by the legislature to cover this case, but it is a just and valid claim against the State.

It does not appear that the county treasurer has deducted anything for collection charges, and apparently the entire amount originally paid by claimant, is now in the hands of the State Treasurer.

This suit was not begun prior to May 1, 1914, as provided by the Court of Claims Act, so that a hearing might be had at this term, but the State has entered its appearance, and as we construe the law, we have jurisdiction to hear and determine this cause.

It is the judgment of this Court, that claimant be awarded the difference between the amount erroneously paid and the amount that he should have paid on the date payment was made, and accordingly, as executor of the said estate, he is awarded the sum of $4,216.98.


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    Edward A. Pynchon v. State of Illinois.

      Opinion filed December 17, 1914.

      Damages — facts held sufficient to justify Court in making award where employee lost property. The claimant was employed as civil engineer by the Rivers and Lakes Commission, and while trying to save property of the State, he lost his surveying instruments in the Big Muddy River. Held, that he is entitled to an award for the amount of the property lost by him.
    Ben. F. Glahn, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   The claimant while employed by the Rivers and Lakes Commission in July, 1912, to do some work in connection with the Big Muddy River survey near DeSoto, Illinois, was instructed by the engineer in charge of their camp to take a motor boat, and proceed down the river to Murphysboro, Illinois, for the purpose of completing some unfinished work at that place.

While going down the river, the boat which was occupied by claimant and another employee, struck a snag and capsized, throwing claimant and the other occupant into the river.

It was necessary in making this trip, for claimant to carry his own personal belongings, together with several instruments belonging to the State, that were used in connection with this line of work.

When the boat capsized, it sank, and claimant did all in his power to save the property of the State, and succeeded in saving valuable property, consisting of levels, notes and memoranda that were worth about two hundred ($200.00) dollars. Due to his efforts to save the State’s property, he was unable to save his own personal belongings and now seeks to recover for the loss of same.

The Rivers and Lakes Commission, after investigating this accident, realized the justice of claimant’s demand, and in their annual report to the Governor of the State of Illinois, in 1912, recommended, that this claim amounting to one hundred twenty-nine and fifty hundredths ($129.50) dollars, he paid.

It is the judgment of this Court, that an award he made to claimant for one hundred twenty-nine and fifty hundredths ($129.50) dollars.


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    Clifford Redmond v. State of Illinois.

      Opinion filed December 17, 1914.

    1. Non-i.iabii.ity of State — Morrissey v. State ante followed. The doctrine announced in the case of Morrissey v. State, supra, is applicable to this claim.
    2. Statute of Limitations — two year• statute bar to this claim. This claim is unliquidated, and since the cause of action accrued on July 12, 1908, and the claim was not filed until November 29, 1910, the Statute of Limitations is a bar to the same.
    James C. O’Brien, for Claimant.
    P. J. Lueey, Attorney General, and Arthur R. Roy, Assist-, ant Attorney General, for State.
   Claimant, with a companion, was in charge of a launch and house-boat, with which they left Chicago on July 12, 1908, traveling along the Illinois-Michigan Canal. It was their intention to make a trip along the canal, stopping at various points for the purpose of doing odd jobs of repairing machinery, etc., and he had tools with him for that purpose. At about 8:45 in the evening, they reached the Jackson street bridge at Joliet, where there was a dam without light or signals. They struck the dam and the house-boat was stranded there. The next morning they were directed by the lock-tender to the lock. Subsequently, the water was lowered and the house-boat was flooded. Property of the claimant, amounting in value, as he says, to $116.00, was damaged or destroyed, and he received injuries and shock for which he claims $100.00.

Counsel for claimant, in his argument, confines himself to a discussion of the negligence on the part of the lock-tender of the canal, an agent of the State, and to the effect that claimant was free from blame. The State, in answering, contents itself with the statement, that if this Court should hold that the Illinois-Michigan Canal is a business enterprise, and not operated in the exercise of a governmental function, that then the doctrine of respondeat superior applies to the State and that it has no objection to making an award.

While this case has been under consideration, the Court has also considered the case of Morrissey v. State of Illinois, opinion filed at this term of this Court* and the other so-called canal cases involving similar questions. Those claims were rejected by this Court without prejudice to the claimant, we holding, that the State in the operation of the canal exercises governmental function. This Court has also repeatedly held, that the State cannot be held responsible for the negligent acts or omissions of its agents.

In this view of the law so repeatedly followed by this Court, we cannot make an award in favor of claimant.

It remains for us to determine whether or not this claim should be rejected without prejudice. The cause of action accrued on July 12, 1908, and claim was filed herein on November 29, 1910. The Statute of Limitations providing for the filing of unliquidated claims against the State, limits the time within which such claims may be filed to two years. It had run in this case, and the claim must be rejected for that reason.

The judgment of this Court is that the claim be rejected.


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    Peter H. Schwaba v. State of Illinois.

      Opinion filed December 17, 1914.

    Nok-liabjxitx of State — Alling v. State ante followed. This claim is similar to that of Alling v. State, supra, and the law as applicable to that claim, applies to this claim.
    Thomas F. Burke, for Claimant.
    P. J. Lucey, Attorney General, and Arthur B. Boy, Assistant Attorney General, for State.
   The claim in this case is the same as that of Alling v. State, in which an opinion was rendered at the October Term, 1914, with the exception, that the injuries received by claimant in this case were not so serious.

Claimant was a clerk in the office of Ailing and was injured at the same time as Ailing.

For the reasons set forth in the Alling case, this claim is rejected.


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    Bertha Stilley v. State of Illinois.

      Opinion filed December 17, 1914.

    1. Respondeat Supebiob — doctrine of not applicable to State. The State, in the absence of express statute, is not liable for injuries sustained by those in its employ.
    2. Jueisditcion — Act creating Court does not enlarge. The Act creating the Court of Claims has not enlarged or increased the liability of the State íd any particular.
    3. Pbactice — claimant not precluded. Under the facts, as developed by the proof, the Court, while rejecting the claim, does not preclude claimant.
    James Lingle, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   Claimant was employed at the Lincoln State School and Colony, one of the State charitable institutions, beginning her employment in March 1911. She worked principally in the laundry from that time until June 11, 1913, the date upon which she met with the injury complained of.

On the day of the injury, her employment was in another department, but for the purpose of instructing a new employee, she and another employee were engaged in putting a clean canvas over one of the rolls of a mangle. This machine used for ironing is about 8x10 feet in size on the floor, and in the neighborhood of five feet high. On top of a metal bed, which was heated by steam, and in which were successive depressions, there were four iron rollers, each, about ten feet long and six inches in diameter. These rollers were covered first with heavy felt, over which was placed canvas, and whenever this became soiled, it was replaced with a clean piece and this was the work claimant was doing at the time of her injury. The rollers were connected with cogs at either end, and could be raised by means of a foot lever only while revolving. At the time of the accident in question, there was a pressure of about seventy pounds of steam which heated the metal bed over which the rollers operated.

To change the canvas, the rollers were raised, the soiled canvas removed, and the roller turned so thaj; several inches of the felt extended out; the roller was then lowered and an operator at either end with one hand kept the canvas smooth and straight, and with the other, inserted the edge of the canvas between the rollers and felt to a point where the contact of the roller with the bed caught the canvas and drew it around the roller, which was revolving. The power was electricity supplied through a switch.

In adjusting the canvas, it was necessary to stand on top of a stool and lean over to reach the' rollers. The first or front roller was guarded, but the second roller upon which claimant was working was unguarded.

While claimant was engaged in making the change of the canvas and standing on a stool, in some way her left hand was caught and drawn into the machine. It is uncertain from the evidence whether the stool upon which she was standing tipped, and threw her into the machine, because she was leaning over, or was struck by an inmate of the institution and knocked out from under her, or whether her hand was caught and the stool tipped over afterwards, but for the purpose of this case it is really immaterial. After the stool had fallen down, she hung suspended from the machine and an employee held her up and an inmate turned off the power. To release her, it was necessary to again turn on the power and draw her hand still further in so that the foot pedal could be pressed down. Her hand was drawn in almost to the wrist. It was severely crushed and several bones were broken and she received very severe burns which have caused permanent disfigurement. She returned to work after about a month, but has suffered pain and inconvenience because of the breaking and crushing of the bones and the severity of the burns and likewise the unsightly condition of her hand causes her great annoyance.

Claimant alleges negligence on the part of the State, in that, the rollers should not have been heated at the time the work was done; that an insufficient number of employees were provided, and, that inmates of the institution should not have been permitted in the room. The State defends that it is not responsible for injuries to its employees prior to the enactment of the compensation law; that the evidence does not disclose how the accident occurred, and therefore negligence cannot be charged to the State.

This Court has repeatedly held, that in the absence of express statutory enactment assuming liability by the State in particular classes of cases, there can be no recovery. Claimant was employed in a charitable institution conducted by the State in the exercise of its governmental function, and in consequence, even though there were negligence in every way claimant alleges, she cannot recover from the State in this cause. And we have already repeatedly stated, that the doctrine of respondeat superior is not applicable to the State.

The Act creating this Court has not enlarged or increased the liability of the State in any particular, and it is only where the State assumes liability, as in the military and naval code, that this Court can award damages in a proper case for personal injuries.

O’Donnell v. State, 1 C. of C. R., 255; Taylor v. State, C. of C. Opinion filed May 22, 1914.

As we said in the case of Taylor v. State, supra:

“While claimant was in the employ of the State and paid by the State, we cannot agree with his contention in our interpretation of the law that an analogy can be drawn between his relations with his employer and the relation of master and servant. ’ ’

In this view of the law, we must reject this claim, but will give it further consideration for the purpose of ascertaining whether or not the rejection shall be final or without prejudice to the claimant. An examination of the record in this case appeals strongly to sympathy. Claimant, an unmarried woman twenty-one years of age, has sustained what to her is indeed a serious injury. We can not believe from the evidence that claimant herself was in any way negligent. If the rules governing the relation of master and servant were here applicable, it might be said that she assumed the risk of employment. Had the work been done when the heat was turned off the machine, claimant undoubtedly would not have sustained what to her is the most serious feature of the injury. She wa.s ordered to do the work while the machine was heated to a high degree, and while in a court of law an employer under like circumstances would undoubtedly have a good defense, yet, this accident happened but a few days before the Workmen’s Compensation Law went into effect. It was the declared policy of the State at the time of the accident, that its employees receiving injuries should be compensated. The statute had been passed but the law was not in force. Under such circumstances, we do not believe it would be doing justice to reject this claim and thereby preclude the claimant from presenting her claim to the legislature.

Were it in our power so to do, we would undoubtedly award the claimant seven hundred fifty ($750.00) dollars.

It is the judgment of the Court that this claim be rejected but without prejudice to the rights of complainant to present her claim to the legislature.


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    Elizabeth Ullmann, in her own right, and as Executrix of the Last Will and Testament of Frederick Ullmann, Deceased, v. State of Illinois.

      Opinion filed December 17, 1914.

    1. Inheritance Tax — Exemptions should be deducted in fixing rate. Where the total estate amounts to $116,534.73, and there is an exemption of $20,000.00, the rate of the tax should be $1.00 on the hundred.
    2. Same — facts held to justify an award. In this ease, the county-judge fixed the tax at $1,930.69, the same being at the rate of $2.00 on the hundred. The county court on appeal affirmed the decision of the county judge, but the Supreme Court reversed the decision of the county court, remanding the cause to the county court with instructions to enter the proper order. The county court then entered an order fixing the tax at the rate of $1.00 on the hundred. (People v. Ullmann, 263 Ill., 528.) Held, that an award should be made.
    3. Same — payment under protest — demand. The tax was paid under protest and demands were served upon the State and county treasurers for the return of the same.
    4. Interest — State does not pay. In the absence of a statute allowing interest on claims, the same will be disallowed.
    Hoag and UHmann, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   Frederick Ullmaim, a resident of Cook County, died on March 29, 1911, testate, devising and bequeathing all his property to his widow, the claimant herein.

The will was probated in the probate court of Cook County on April 7, 1911, and letters testamentary issued to the claimant.

The appraiser appointed to fix the value of the property for inheritance tax found the value to be $116,534.73, and an order was entered by the county judge of Cook County fixing the tax at $1,930.69, same being figured on a two per cent basis, after deducting the statutory exemption of $20,000.00. This tax was paid by tbe claimant, to tbe county treasurer within six months of the death of the decedent, under protest, for the purpose of saving five per cent discount provided by statute.

Claimant appealed from the order of the county judge to the county court, and there insisted that the tax should have been levied on a one per cent basis instead of two per cent, on the theory, that after the deduction of the statutory exemption, the value of the estate was less than $100,000.00. The county court affirmed the order of the county judge, and from this judgment claimant appealed to the Supreme Court of Illinois, in which court, the judgment of the county court was reversed, on the ground, that the tax should have been levied on the one per cent basis instead of two per cent, and the cause was remanded to the county court with direction to enter an order in accordance with the order of the Supreme Court. (People v. Ullmann, 263 Ill., 528).

On July 8, 1914, the county court entered such order and found that the tax should have originally been fixed at $965.35.

On September 25, 1913, claimant served a demand upon the- county treasurer of Cook County, for the repayment of $917.08, being one-half the amount originally paid by her, and on the same day served a like demand upon the State Treasurer. The original amount of tax as levied by the county court had been reduced by five per cent through the payment within six months as hereinabove stated. These applications for repayment were made within two years of the time the tax was originally paid, and as we construe section 10 of the law providing for inheritance tax, claimant complied with the provisions of the law.

Claimant also claims that under the provisions of section 25 of the inheritance tax law, she should be entitled to three per cent on the amount erroneously paid, from the date of payment. We do not believe, however, that the estate taken by the claimant under the will is such estate as is contemplated under said section of the statute, whereby the State should be called upon to pay three per cent and even though it might appear, as claimant contends, that the State “should in equity and fairness pay for the privilege which it has enjoyed of having the use of the money," in the absence of legislation which would authorize or require the allowance of such interest, we have no authority to award same.

Claimant has in all respects complied with the provisions of the law for the securing of a refund, and it is the judgment of the Court that claimant be awarded the sum of $917.08.


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    William K. Pattison and Lucien E. Harding, Executors of the Last Will and Testament of Samuel S. Frewe, Deceased, v. State of Illinois.

      Opinion filed January 21, 1915.

    1. Inheritance Tax — facts held sufficient to justify an award. In this claim certain real estate was by mistake included in the inventory and later listed for appraisement by the inheritance tax appraiser. The tax was fixed by the county judge and paid, but upon discovery of the mistake an appeal was prayed to the county court, which court reduced the amount of the tax. Held, that claimants were entitled to a refund of the tax erroneously paid.
    2. Mistake or Pact — payment under. Money paid voluntarily under a mistake of fact may be recovered.
    Pattison & Shaw, for Claimants.
    P. J. Lncey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   The claim in this case is for a refund of $190.00 inheritance tax claimed to have been erroneously paid to the county treasurer of Cook County, on the 16th day of April, 1912; and is made under the provision of section 10 of an Act to tax. gifts, legacies, inheritances, etc., approved June 14, 1909.

Samuel S. Frewe died testate on the 14th day of February, 1912, a resident of the city of Chicago, State of Illinois, and claimants were duly appointed executors with the will annexed of the estate of said deceased by the probate court of Cook County and duly qualified. An inheritance tax proceeding was had under the directions of the county judge of Cook County. The appraiser filed his report with the county judge, who entered an order fixing the cash value of the several estates, gifts, transfers, etc., and assessing the total inheritance tax thereon in the sum of $3,761.54; all of which money was within six months paid to the county treasurer of Cook County, and was transmitted by him to the State Treasurer of the State of Illinois, and afterwards, within a few weeks, claimants petitioned the county court for an appeal which was approved and allowed to the county court. The court, after having heard all the evidence, found that the inventory of the appraiser inadvertently included certain real estate as property appraisable which decedent at the time of his death had no legal or equitable title or interest in or to, and that the real estate had been appraised by the appraiser at $7,000.00, when the right and correct appraisement should have been $2,000.00. The court further found that the executors were entitled to a refund in the sum of $190.00, which had been erroneously paid as aforesaid, from which order no appeal has been prayed.

We find, that the claimants have paid to the State an erroneous and excessive tax and that they in all respects complied with the law to secure the refund, and that they are entitled to have returned by the State the sum of ene hundred ninety ($190.00) dollars. We, therefore, accordingly award claimants the sum of one hundred ninety ($190.00) dollars.


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    Charles H. Taylor v. State of Illinois.

      Opinion filed February 17, 1915.

      Negligence — Johnson v. State ante followed. This claim is similar to the claim of Frank O. Johnson v. State, supra. The law governing the Johnson claim covers this claim.
    Brown, Hay & Creighton, and Lagger & Blatt, for Claimant.
    P. «J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   Claimant is the owner of real estate in Joliet situated adjacent to the stone quarry operated in connection with the Illinois State Penitentiary.

Claimant claims to have sustained damage due to blasting operations in the stone quarry, and the facts and the law applicable thereto are essentially the same as in the case of Johnson v. State of Illinois, in which opinion was filed at the October Term, 1913, and in McNally v. State of Illinois, opinion filed at the present term of this Court, and in fact the evidence in this case and in the McNally case was taken at the same time. He claims that subsequent to the expenditure of about $3,000.00 by him, in the purchase of a lot and the erection of a house, that the operation of the stone quarry was begun, as a result of which, the value of his property has been depreciated. The evidence shows, that the property was mortgaged for $1,800.00; that he was unable to pay interest on his mortgage; that he endeavored to sell his property but could not because of the presence of the stone quarry; that the best offer he received was $1,200.00, and that he finally turned the property over in payment of the debt. Of course, the consideration for the sale of the property by claimant, is no criterion of its value, as it was practically' a forced sale.

Claimant testified, that in his opinion, the consideration he received was more than its value, yet he also stated that the reason he had to give the property up was because of business reverses and because he was unable to keep up payments of interest. He carried $2,000.00 of insurance, so it may be well said, that claimant ’s own testimony with relation to value is not altogether consistent. The claimant filed his claim on May 1, 1914. He had disposed of his property in January 1914.

"While this ease is in other respects similar to the Johnson and McNally cases, it presents a novel question in that due to financial reverses claimant was compelled to turn over the property to his mortgagee in satisfaction of the mortgage debt. It would appear from the evidence that the existence of the nuisance in question undoubtedly had its effect upon the sale of the property and limited the possible number of purchasers. We believe that the value of this property was depreciated because of the facts as shown in the evidence, and we accordingly award the claimant the sum of five hundred dollars as his damages.


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    Mary Badgley Wells, Bradford Wells and Mildred Wells Carton v. State of Illinois.

      Opinion filed February 17, 1915.

    1. Inheritance Tax — reversal of order of county judge by county court — effect of. A reversal of the order of the county judge fixing an inheritance tax by the county court will support a claim for a refund of an inheritance tax.
    2. Same — exemptions to be deducted in fixing rate. If the total value of the property as fixed by the court, less exemptions, is less than $100,000.00, the rate should be $1.00 on the hundred.
    Gardner, Carton and Thomson, for Claimants.
    P. J. Lncey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   Robert M. Wells, a resident of Cook County, died testate in September 1913, and his will was duly probated in the probate court of Cook County, September 12, 1913. After several minor bequests, decedent’s residuary estate was devised, one-third to his wife, Mary Badgley Wells, une-half to his son, Bradford Wells, and one-sixth to his daughter, Mildred Wells Carton, all of whom are claimants herein.

The county judge of Cook County, on December 30, 1913, entered an order fixing inheritance tax, based on the report of the appraiser previously appointed. The values placed on the shares of the various claimants were as follows: Mary Badgley Wells, $70,598.33; Bradford Wells, $105,897.53; Mildred Wells Carton, $35,299.18. These values include the valuation of fifty shares of the capital stock of the Continental & Commercial National Bank of Chicago.

After the deduction of the statutory exemption of $20,000.00 in each case, the tax of the widow was fixed on a one per cent basis at $505.98; of the son, on a two per cent basis at $1,717.95; and the daughter on a one per cent basis at $152.99. The several taxes were paid to the county treasurer of Cook County February 20, 1914, five per cent having been deducted as allowed by law and the respective amounts paid were: by Mary Badgley Wells, $480.68; Bradford Wells, $1,632.06; Mildred Wells Carton, $145.34'. The money was turned over by the county treasurer to the State Treasurer.

An appeal was taken from the order of the county judge to the county court and on July 14, 1914, judgment was entered in that court finding that the fifty shares of bank stock which had been included in the valuation, was not the property of the decedent and should not have been considered in fixing the value, and finding also that the rate of two per cent of taxation on the share of Bradford Wells was erroneous and should have been one per cent. The order of the county court fixed the total value of the estate at $200,351.06, and the values of the respective shares as follows: Mary Badgley Wells, $65,681.69; Bradford Wells, $98,522.53; Mildred Wells Carton, $32,840.84. After deducting exemptions of $20,000.00, in each case and figuring the tax at the rate of one per cent, the court found the correct amount of taxes in each case was as follows: Mary Badgley Wells, $456.82; Bradford Wells, $785.23; Mildred Wells Carton, $128.41.

The five per cent discount for payment within six months, would make the amounts that each of the parties respectively should have paid, as follows:

Mary Badgley Wells, $433.98; Bradford Wells, $745.97; Mildred Wells Carton, $121.99.

These amounts, deducted from the amounts actually paid in each case, provide a basis upon which to figure the amounts that should be properly refunded.

On July 20, 1914, claimants made application to the county treasurer and State Treasurer for refund, but they have not received same.

Claimants have filed their claim since May 1, 1914, but with the consent of the Attorney General, same has been heard at this term of this Court and this Court has jurisdiction of same.

Claimants have in every particular complied with the statute to entitle them to a refund of the amounts erroneously paid and are entitled to awards.

It is the judgment of this Court, that Mary Badgley Wells be, and she is hereby awarded the sum of $46.70; that Bradford Wells be, and he is hereby awarded $886.09; and that Mildred Wells Carton be, and she is hereby awarded $23.35.


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    Dorothea Schaefer v. State of Illinois.

      Opinion filed February 17, 1915.

    1. Respondeat Supebiob — rule of not applicable to State. This rule of law does not apply to the State, and persons injured through the fault or neglect of employees of the State cannot recover damages.
    2. Govebnmental Function — State exercises in conducting hospitals. The State, in conducting its State hospitals, exercises a governmental function solely.
    3. Safety Appliance Act — does not apply to State. The Safety Appliance Act has no application to the State in its relation to its employees.
    4. Jubisdiction — Court without — of employees injured subsequent to July 1, 1918. Employees of the State injured subsequently to July 1, 1913, may have their claims determined by the Industrial Board. The Court of Claims has no jurisdiction of claims of this character.
    T. Y. Gorey, for Claimant.
    P. J. Lncey, Attorney General, and Arthur B. Boy, Assistant Attorney General, for State.
   Claimant was employed in the laundry in the Elgin State Hospital, and on July 11, 1913, at about 2:30 p. m., she sustained injuries while working on a mangle. She claims that her injuries were due to the fact that there were no guards on the machine; that she was unacquainted with its use; that both hands were caught in the machine, crushed and disfigured, there being permanent injury, through burning and crushing, to the left hand, and that she was compelled to remain in the hospital for about six weeks.

Claimant argues that the Act to provide for the health, safety, comfort of employees, etc., enacted by the legislature was violated in this case by the State itself. The State argues that there is no liability because the State in the operation of the hospital exercises governmental function, that the injury to claimant was due to her own negligence, and that claimant has misconceived her remedy, in that, she should have brought her action under the Workmen’s Compensation Act, which became effective on July 1, 1913. No person besides claimant witnessed the accident, excepting, that immediately after claimant’s hands were caught, she was seen to have her foot on the pedal which operated the machine. The attending physician testified, that the injuries to the right hand were slight. The left hand is permanently injured, the index finger anchylosed, the middle finger discolored with a joint enlarged, the tendons are not free, adhesions having taken place. The injuries are undoubtedly severe.

Unfortunately, however, for claimant in this case, granting, for the sake of argument, that she was entirely free from fault and that the fault was entirely that of the State, she cannot recover in this case.

This Court has repeatedly held, and it is uniformly so held by courts generally, that persons injured through the fault or neglect of employees of the State, engaged in the conduct of an institution that is operated by the State in its governmental capacity, cannot recover damages. The State in the conduct of the Elgin State Hospital exercises governmental function solely. This Court in the case of Jones v. State, opinion filed October Term, 1913, stated:

“The Safety Appliance Act has no application to the State in its relation to its employees,” and

“There is no statute which makes the State liable to respond in damages in a case such as the one before us.”

We have been shown no reason to change our opinion as stated in that case.

Claimant was injured on July 11,1913, ten days after the Workmen’s Compensation Law of 1913 became effective; section 4 of that Act defining the term employer includes the State. The Act provides that all claims for compensation shall he heard by the Industrial Board which is created by that Act. If this case were one against a private individual instead of the State, it would not be contended that the courts of law would have any jurisdiction, that having been conferred exclusively on the Industrial Board. The same rule holds true here, and this Court, under the law as it now exists, has no jurisdiction to pass upon this case.

The claim is accordingly rejected, without prejudice, however, to the rights of claimant to prosecute her claim before the Industrial Board, or elsewhere as she may see fit.


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    Albert Reutler v. State of Illinois.

      Opinion filed February 17, 1915.

      Laches — failure of claimant to demand pay. Failure for a number of years on the part of an employee or special officer of the State to demand payment for services which he claims to have performed for the State, will cast suspicion on the genuineness of such claim.
    Frank J. Wilkins, for Claimant.
    P. J. Lucey, Attorney- General, and Arthur R. Roy, Assistant Attorney General, for State.
   During the month of September 1905, claimant, who is a resident of Tazewell County, Illinois, was appointed a special deputy game warden for the State and for about six months after his appointment worked as engineer on the “Dimples”, a launch used by the State in connection with the State Game Department.

"When he was appointed, he received a special star and commission which he retained until shortly after the filing of this claim.

While engaged as engineer on the “Dimples” he was paid at the rate of sixty ($60.00) dollars per month and expenses, but after that time he did not receive any further compensation.

Claimant contends, that he has been actively engaged in the performance of his duties as special deputy game warden from the time of his appointment until August 1, 1913; that he has not received any compensation since March 1, 1906, and that the State is indebted to him for $5,340.00, being the amount claimed from March 1, 1906, to August 1, 1913, at the rate of sixty ($60.00) dollars per month.

It is admitted that during the time claimant worked on the “Dimples” he received his monthly salary and. expenses, but tbe evidence fails to disclose very much work performed by claimant after he ceased working as engineer on tbe launch.

Claimant produced some evidence to show, tbat at different times be warned certain parties regarding tbe killing of game, but this evidence by itself is certainly not sufficient to support bis claim.

If be was as diligent in working as be claims to bave been, it seems to tbe Court tbat be would bave very little trouble in proving it beyond question. To say tbe least, tbe evidence submitted by claimant in support of bis labor is very weak and unsatisfactory.

It is claimed tbat on different occasions tbe wife of claimant wrote to tbe officials of tbe Game Department requesting tbat they pay bim bis salary, and it is also claimed tbat be received letters from tbe department at different times authorizing bim to continue with his work and tbat be would be compensated. But these letters were not produced.

None of tbe officials or employees of tbe Game Department remembered of having received any of tbe letters claimed to have been written by claimant, and Dr. J. A. Wheeler, who was State Game Commissioner of Illinois at that time, states tbat this appointment was only “honorary” and tbat claimant was not to receive any salary, except when be was detailed to do special work for the department. He also states tbat claimant was appointed and given a special deputy’s star and commission in order to protect tbe launch “Dimples”, which was tbe property of tbe State Game Department, and be did not draw any salary as special deputy game warden but as engineer of the launch “Dimples”.

Tbe State contends, among other things, tbat inasmuch, as tbe law of 1905 with reference to tbe appointment of game wardens, did not contain any provision authorizing tbe appointment of special deputy game wardens tbat claimant can not recover. (Session Laws 1905, p. 276, see. 16) It also contends tbat be was appointed to act as engineer on the launch “Dimples” and that having received his compensation for services performed in that capacity there is nothing more due him.

It is apparent from the evidence, that claimant is a man of very moderate means and that his only source of income is that which he derives from his daily labor.

It is difficult to understand why he should continue working for years without making some real effort to secure what he insists is due him. He lived a short distance from the State Capitol, where the offices of the Q-ame Department are located, and he has never made a trip to see why he was not being paid. This does not seem reasonable, and the fact that he and his former wife testified that she wrote letters to the department concerning his salary is not sufficient to overcome our suspicions that claimant well understood that he was not to receive any salary, except when detailed to do special work for the department.

From the evidence submitted to us, we are of the opinion, that at the time claimant was appointed as special deputy game warden, the appointment was made with the understanding that claimant was only to be paid when requested or detailed to do special work, and we are also of the opinion, that claimant has received full compensation for the services rendered by him.

Having reached this conclusion, it will be unnecessary to consider the other defenses interposed by the State relative to the authority of this appointment under the Act of 1905, and other subsequent Acts in relation to the appointment of special deputy game wardens.

This claim is accordingly rejected.


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    Francis J. McNally v. State of Illinois.

      Opinion filed February 17, 1915

    1. Statute of Limitations — as applied to nuisances. The two year statute of limitations does not apply where the nuisance is continuing.
    2. Johnson v. State — followed. In other respects the law as announced in the claim of Frank O. Johnson v. State, supra, governs this claim.
    Brown, Hay & Creighton, and Lagger & Blatt, for Claimant.
    P. J. Lncey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   Claimant seeks to recover damages for depreciation in the value of certain real estate owned by him in the city of Joliet, located adjacent to the stone quarry conducted in connection with the Illinois State Penitentiary.

The evidence produced by claimant is to the effect, that he purchased the lot in 1902 for $300.00; that he expended various sums of money in improving the property, so that the entire investment represents about $2,500.00; that at the time he purchased the lot and erected the buildings, the stone quarry was not being operated; that blasting commenced in the stone quarry about the year 1907, and that since 1910 blasting has continued practically every day except Sunday, as a result of which, stones have been thrown upon his premises, making holes in the roof, the cistern has been cracked at various times, the foundation of the house has been cracked, windows broken out, plastering cracked, siding damaged, and the property has been damaged in other ways.

Mr. McNally testified as to the various times that blasting in the stone quarry had resulted in causing damage to his property, and there is no doubt but what he has not only been seriously inconvenienced, but that he has suffered damage as well. He states as his opinion that the value of the property has been depreciated 'one-half because of the existence of the conditions complained of. In his opinion, the value without the presence of the neighboring stone quarry would be about $3,000.00. He clearly does not qualify himself, however, as a witness acquainted with values. On cross-examination, he stated, that if the property of his neighbor, Mr. Taylor, sold for $2,000.00, his would be worth $2,000.00, and that it would take about $1,200.00 to put his property in as good shape as when built; that the buildings were built nine years ago and have not been painted since built, 'and he admits a depreciation aside from that caused by the blasting in the quarry.

A witness by the name Champoux, a contractor and builder, offered by claimant, after testifying to the conditions as he found them on frequent visits to the property, stated that in his opinion the property is worth between twelve and fourteen hundred dollars; that it would cost that to build at the present time; that the house should be plastered, chimney tom out and rebuilt, house reshingled and re-sided, and that it would take six or seven hundred dollars to do the work.

John R. Herath, a witness for claimant, testified that he is a real estate dealer in Joliet; that in his opinion the property would be worth from $2,800.00 to $3,000.00, and that the damage to the property, because of conditions, would mn between $800.00 and $1,000.00.

In behalf of the State, Joseph McFadden, a real estate dealer, testified that in his opinion, the depreciation was about $500.00, due to the blasting in the quarry, and William H. Clare, a real estate dealer in Joliet, testified that in his opinion, the depreciation due to causes other than natural wear and tear is $500.00.

The State contends that the damages should be limited to such as have resulted during the period of two years next prior to the filing of the claim. With this we do not agree. As we view the situation, this is a continued nuisance, to which the Statute of Limitations is no bar.

Except for the difference in degree of damage, this case is the same in its facts and in the law applicable thereto as the case of Frank O. Johnson v. State of Illinois, decided by this Court at the October Term, 1913. In that case we found for claimant, and, for the reasons stated in the opinion in that case, we find that claimant is entitled to recover in this case, and it might be said that, barring the difference in property and the particular damage, the language used in that opinion might be well adopted as the opinion of the Court in this case.

It is the judgment of the Court, that claimant be awarded, as his damages, the sum of eight hundred dollars.


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    George A. Leach v. State of Illinois.

      Opinion filed February 17, 1915.

    1. Respondeat Superior — rule of not applicable to State. The rule of respondeat superior does not apply to the State, and the State is not liable for malfeasance, misfeasance or nonfeasance of its officers, agents or employees.
    2. Governmental Function — State exercises in distributing antitoxin. The State in distributing hog-cholera serum acts solely in a governmental capacity.
    Julian P. Lippincott, for Claimant.
    P. J. Lueey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   The declaration in this case states that the claimant was a farmer residing a short distance south of Jacksonville, Illinois; that on or about March 1, 1914, he procured from the State Biological Laboratory a supply of serum, which he caused to be administered to his hogs by a licensed veterinary surgeon of this State.

Several of the hogs died immediately after they received treatment on account of the poisonous serum, and claimant asks this Court to make an award to him for seven hundred ($700.00) dollars, to cover the loss he has sustained.

A general demurrer was filed to the declaration; also a special demurrer, which sets forth that the doctrine of respondeat superior is not applicable to the State, and that the State is not liable for the malfeasance, misfeasance or nonfeasance of its officers, agents or employees.

The State, in the distribution of serum and other medicines of this kind, is acting solely in a governmental capacity for the benefit of its citizens. This work must necessarily be handled through its officers, employees or servants, and if they make a mistake or commit a wrong in the exercise of their duty, the State can not be held accountable for their acts.

It has been repeatedly held by this Court, that the doctrine of respondeat superior does not apply to the State, and in view of these decisions we are of the opinion that the special demurrer should be sustained.

Demurrer sustained.


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    S. L. James, Treasurer of the County of Effingham, State of Illinois, v. State of Illinois.

      Opinion filed February 17, 1915.

    1. Inheritance Tax — facts held to justify an award. Claimant, as county treasurer, paid into the State treasury inheritance taxes collected by him in the sum of $338.62. After such payment, it was ascertained that costs of appraisement to the extent of $14.40 had not been deducted. Held, that claimant is entitled to a return of the amount erroneously paid.
    2. Mistake of Fact — payment under. Money paid under a mistake of fact may he recovered, though not if paid under a mistake of law.
   The claimant in this case is the county treasurer of Effingham County, and as such county treasurer there was paid to him by the administrator of the estate of William Abraham, an inheritance tax amounting to $345.53, on the 12th day of December, 1914. After deducting the two per cent allowed to the county treasurer for collecting the same, he remitted the balance, $338.62, to the State Treasurer. After remitting the same, he ascertained there was due as costs in the county court of Effingham County, the sum of $14.40, being the clerk’s fee $5.00, O. P. Denton, for transcribing testimony $7.50 and A. L. Abraham, witness fee $1.90, which amounts should have been deducted out of the said tax before the same was remitted to the State treasury.

We have examined the authorities, and applying the same as we see them to the facts in this case which discloses that this money was paid through an oversight or a mistake of fact, and not through a mistake of law, we are of the opinion that claimant is entitled to an award.

We, therefore, award claimant, S. L. James, the sum of fourteen dollars and forty cents ($14.40).


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    A. C. Dale v. State of Illinois.

      Opinion filed February 17, 1915.

    1. Non-liability of State — not liable to persons injured at State Fair. The State is not liable for injuries received by persons attending the State Fair, even though the officers and employees of said fair are guilty of negligence, and such negligence be the cause of the injuries. (Minear v. The State Board of Agriculture, 259 Ill., 549.)
    2. Jurisdiction — Act creating Court did not enlarge State’s liar bility. The law creating the Court of Claims did not create a new liability against the State, but simply provided a method by which a claim may be heard by the Court.
    3. Pbactice — Court governed by Supreme Court decisions. The Court of Claims will be governed as to the law as the same is declared by the Supreme Court of this State.
    K. C. Ronalds, for Claimant.
    P. J. Lueey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   The claimant in this case seeks to recover damages against the State for injuries sustained by him while attending the Illinois State Fair at Springfield, Illinois, in 1911.

The facts relative to this claim are partially presented to us under a stipulation which in substance recites, that the State Board of Agriculture held its annual State Fair for the year 1911 on the grounds owned by it in the city of Springfield, county of Sangamon and State of Illinois,- that in addition to its various exhibits they had a program of amusements which included various contests upon their tracks or race courses; that claimant was injured while attending said fair on account of the wooden amphitheatre or bleachers collapsing and f alling down; that claimant filed his suit for damages against the State Board of Agriculture in the circuit court of Saline Oounty, Illinois ; that while said suit was pending and undisposed of, the case of Minear v. The State Board of Agriculture, 259 Ill., 549, which was a similar case, was decided by the Supreme Court of this State in favor of the State Board of Agriculture and that claimant thereafter dismissed his suit in the circuit court of Saline County.

The State has filed a demurrer to the claimant’s declaration and it is only necessary for us to pass upon the legal aspect of the case thus presented without inquiring into the nature or causes of the injuries in question.

In the case of Minear v. The State Board of Agriculture, supra, the court held, that the State Board of Agriculture was not liable in an action of tort for damages received by the collapsing of the bleachers or elevated seats provided for spectators of the races at the State Fair, even though the board may have been guilty of negligence in not discovering the defective conditions of said seats or bleachers, because the board is an arm of the government, and its acts were governmental.

The law creating the Court of Claims does not create a new liability against the State but simply provides a method by which a claim may be allowed or rejected on a hearing before the Court. (Johnson v. State, 1 Ct. of C. R., p. 208.)

This being true, it is our duty to follow the established precedents of the highest court of record in this State, and in view of the holding in the Minear case, supra, we are of the opinion that the declaration does not present a cause of action against the State and the demurrer to the same is accordingly sustained.


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    William Childers and Eli Lillienstein v. State of Illinois.

      Opinion filed February 17, 1915.

      Damages — facts held to justify an award. In this claim, there is no dispute as to the law governing the same, and upon the proofs submitted, the Court awards claimants the amount of their demand.
    Smith and Friedmeyer, for Claimants.
    P. J. Lueey, Attorney General, and Arthur B. Boy, Assistant Attorney General, for State.
   The declaration in this case alleges that on or about the 28th day of May, 1913, the Board of Administration of this State purchased a team of horses from claimants for use at the Illinois Soldiers’ Orphans’ Home at Normal, Illinois, for the sum of $385.00; that afterwards one of the horses was returned to claimants for which a credit was allowed the State of $192.50, and that there is due to claimants $197.50.

To the declaration, the State filed the general issue and a special plea, setting up that the claimants sold to the State of Illinois, a certain team of horses for the sum of $385.00, and warranted the same to be then sound; and, thereafter, the State returned claimants one of the horses for the reason that the same was not sound, and that the other horse was not returned because of its death due to disease which it had at the time of the sale.

There is no dispute as to the law, and the case rests solely upon the facts. The evidence discloses, that but two witnesses testified, one of them a claimant, and the other a Mr. Sales, who examined the horses at the time of the sale, for the State, as to their soundness, qualification and disposition, and afterwards conferred with Mr. Whipp, who was then the purchasing agent of the State, who recommended their purchase and was authorized to purchase the same.

The evidence further discloses, that in about five or six days after the sale and delivery one of the horses died, the other being returned to claimants, for which a credit was given the State of $192.50.

There was no evidence offered on behalf of the State in support of its special plea, and we are of the opinion that the horses were sound at the time of the sale and delivery to the State, and that claimants are entitled to an award. We, therefore, award claimants the sum of one hundred ninety-two dollars and fifty cents ($192.50).