text:
    (No. 823
    Claimant awarded $5,660.00.)
    Modern Systems Construction and Supply Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1926.

      Contract — when State liable for work and material. The State is liable for work performed and material furnished, under contract with claimant, on its State building where the contract is performed according to the plans and specifications proposed by the Division of Architecture of the Department of Public Works and Buildings.

      Same — when the State is not liable. The State is not liable for extra work performed, where it is performed without extra cost to the contractor.
    . Same — State not liable for interest on invested capital. The State is not liable for interest on invested capital and equipment, as such interest is speculative in character.

      Same — when not liable for loss to contractor. The State is not liable for losses due to insufficiency of labor caused by interference with job organizations.
    Small, Bratton & Schroeder, for claimant.
    Oscar E. Carlstrom, Attorney General ; Roy D. Johnson, Asst. Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

On June 15, 1921, the Modern Systems Construction and Supply Company, claimant herein, entered into a contract with the State of Illinois whereby it agreed to provide all the materials and to perform all work for the general work of buildings for the Alton State Hospital at Alton, Illinois, for $326,583.00. The work was to be done according to the drawings, plans and specifications therefor prepared by the Division of Architecture of the Department of Public Works and Buildings, and was to be substantially completed by March 1, 1922. The contract fixed the prices of labor and materials upon which the total contract price was based and bound the contractor in no event to pay more than 65 cents per hour for hod carriers and mortar mixers, 62% cents for other common labor and $1 per hour for brick masons, stone masons, iron workers, lathers, sheetmetal workers, carpenters, painters and plasterers, and provided that the net savings effected should be deducted from the contract price. Under the terms of the contract the time of completion of the work might be extended by the supervising architect, and it was extended by him 60 days.

Two other contracts were entered into between claimant -and the State, the first on October 25, 1921, for the installation of bell traps and drain pipes for which claimant was to receive $2000.00, and the second on November 5, 1921, for certain substituted materials for which claimant was to receive $1400.00.

On December 9,1921, the State let the contract for the general plumbing work of the entire building to E. Baggott & Co. In the latter part of March, 1922, the plumbers went on a strike. In October of that year E. Baggott & Co. gave up their contract and the State took over the plumbing work and later finished it.

Claimant contends that the failure to have the plumbing done in proper time compelled claimant to delay its work and that during such delay the prices of materials and labor increased, its machinery and fixtures were idle, its organization disrupted and its money tied up, etc., for which it has filed This suit. Attached to its declaration are 22 separate claims or “invoices” aggregating the sum of $40,144.53 which claimant contends the State owes it. This amount includes certain items mentioned in the invoices for extra work and material furnished by claimant and for which it had no written contract with the State.

The Attorney General filed a general demurrer to the declaration. After this demurrer was filed it was stipulated by the parties that invoices 1, 4, 5, 6, 7, 8, 9, 10 and 15 and also an item of $379.46, which was not paid on final certificate because of lack of funds, are correct and should be allowed. The total amount of this item and invoices, which the Attorney General agrees is a just claim against the State, is $4,371.26. This stipulation of the Attorney General is án admission that there is some equity in claimant’s case, and the demurrer will be overruled and the cause heard as if the general issue had been filed by the State.

In its declaration claimant alleges there was certain other work in and about the buildings of the State at Alton and also extra work done by it for which no written contracts' were entered into between it and the State.

Both claimant and the State have taken evidence, including a large number of exhibits, on the question of these verbal agreements. After a careful consideration of all the evidence and exhibits introduced in this case,* both on the part of the claimant and of the State, we find that claimant has failed to prove, by a preponderance of the evidence, the verbal agreements to do such extra work, and the claims for it are refused.

The invoices not included in the stipulation are 2, 3, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21 and 22 and they will be decided in that order.

Invoice No. 2 is a claim for clearing out tunnels and openings left for the plumbers and for bricking up these openings. The specifications require the contractor to leave openings for other trades to do their work and then to close up such openings so that the several parts will properly fit together. The specifications also require the contractor to keep clean all parts of the buildings, and the tunnels are a part of the buildings. While the evidence shows there was an oral understanding between the claimant and a representative of the State that larger openings were to be left than the plans and specifications called for, yet the evidence does not show this made any difference in the cost. And, as the materials listed and claimed for in this invoice were all necessary to the final completion of the walls, leaving larger openings than were specified would not necessarily add anything to their cost. It was the duty of claimant to clean out the tunnels before its contract was completed, and there is no evidence showing the cost of cleaning out the tunnels was greater than it would have been had the openings been left the size designated in the specifications. If there was a difference in the cost, there is no evidence from which this court can determine the amount. The claim for invoice No. 2 is refused.

Invoice No. 3, is a claim for levelling basement floor after the water line was laid. The evidence shows that the basement floor was in the same condition when the water line was laid that it was when the claimant finished excavating, except the rubbish that had fallen while the building was going up. The specifications required the contractor to do the work mentioned in this invoice if the architect so directed, which he did. This work being required of claimant under its contract, its claim therefor is refused.

Invoice No. 11 is a claim for $10,483.14 for increased cost of plastering. Under its contract with the State all plastering was to be done by claimant. Claimant’s contention is, as we understand it, that in February, 1922, it contracted with one Thomas Hawkins to do this plastering for 37 cents per square yard; that Hawkins was ready to begin the job when the plumbers ’ strike stopped all work and nothing more was done till the following October when claimant again contracted with Hawkins to do the plastering as a day labor proposition ; that claimant kept an accurate account of the work done under this contract with Hawkins and that the plastering cost 96% cents per square yard under it instead of 37 cents, the price for which Hawkins first agreed to do it. The difference between these two prices is the basis of Invoice No. 11. Article 4 of claimant’s contract with the State fixes the prices of labor and material upon which the total contract price is based and provides the State shall have the benefit of any savings effected by claimant in securing labor or materials at less than those prices. There is no evidence showing how claimant paid Hawkins, whether by the hour or by the day. If claimant paid him no more per hour for labor than its contract with the'State fixes as the basis of the amount to be paid by the State for the entire work, under no theory would the State be liable for any loss sustained by claimant. We are of the opinion that claimant has failed to make any proof upon which the claim for Invoice No. 11 can be allowed and it is therefore refused.

Invoice No. 12 is for storage and extra cost of mill work due to delay on account of the plumbers’ strike. The claimant’s contract with the State does not provide for the payment of damages or loss occasioned by strikes, and this claim is refused.

Invoice No. 13 is a claim of $5,735.45 for credits made the State for depreciation of labor which claimant contends did not "materialize. Under article 4, of its contract, claimant agreed with the State that the labor should not exceed certain prices per hour and that if' it secured the labor for a less amount than the prices named in that article, then the State should take credit for the difference between the prices paid by the claimant for labor and the prices named in article 4. From the time it began work under its contract claimant made monthly reports to the State of the amount paid for each class of labor and the State took credit for the amounts shown due it by these reports. There is no evidence in the record showing claimant’s reports were not correct or that the credits were not properly given, and the claim for Invoice No: 13 is refused.

Invoice No. 14 is a claim for patching tile floors and mastic base. The original amount claimed was $792.12, which has been amended to read $1009.47. These floors were put in contrary to the plans and specifications by the Peoria Stone and Marble Works, and without the written consent of Edgar Martin, supervising architect, as provided in article 22 for change in the work. The claimant having failed to comply with the contract) this claim is refused.

Invoice No. 16 is a claim of $1,520.96 for damages to troweled floor finish due to the presence of dirt and lignite in the sand furnished by the State. Claimant’s contract provides for certain cement floors, and specifies that immediately after the foundation or structural floor is poured and leveled off a layer or top dressing at least one-half inch thick shall be deposited and worked down with a wood float and where an application of mastic follows shall be finished to a true level by troweling. Claimant put in the floors with a scratch coat finish and, on being told they were not being put down according to the specifications and there would be trouble later when the mastic was applied, replied that it would take care of any trouble that might arise. We are of the opinion this extra cost was caused by claimant’s failure to comply with the specifications, and the claim is refused.

Invoice No. 17 is for shrinkage On mas-oleum, amounting to $1007.40. This material was delivered on the job on the 29th of April, 1922, more than 30 days after the plumbers’ strike. Claimant knew the strike was on before this material was shipped and it could have stopped the shipment and avoided the loss. Furthermore, there is nothing in claimant’s contract with the State making the State liable to the claimant for any change or loss caused by strikes. The State is not liable for this claim, and it is refused.

Invoice No. 18 is a claim for $909.65 for closing windows for plastering in unseasonable weather and cleaning windows after plasterer. Pour.hundred and sixteen dollars of this claim is for closing of windows in the building on account of unseasonable weather. If claimant had completed the buildings by March 1st, 1922, the time contemplated and fixed for their completion when it signed the contract with the State, the plastering would have been done during the winter months and it would have had to close the window openings (contract, paragraph 183, page 52) to protect the plastering, as the specifications so provide. We are of the opinion that claimant was not put to any additional expense on account of closing of windows. As to the $375.00 for cleaning windows after the plasterers, the specifications provide that the contractor shall maintain the building and premises in a neat cleanly condition. The claimant knew this provision was in the contract at the time it was signed and should have included an allowance for this in its bid on the buildings. This claim is therefore refused.

Invoice No. 19 is for-$984.50 shrinkage on 100 tons of plaster. Claimant’s evidence shows two cars of plaster were received at the job in March, 1922. The freight bills, which are in evidence, show one of the cars contained 90,000 pounds and the other one 110,000 pounds. The Attorney General admits that $440.00 of this claim is just, but contends the cars only contained 25 tons each, and introduced evidence tending to prove that contention. We are of the opinion that the better evidence shows there were 100 tons of the plaster, and that claimant is entitled to an award on that basis. If claimant is entitled to an award of $440.00 on the assumption there were only 50 tons of plaster in the two cars, then it should be awarded $880.00 as the proof shows the cars contained 100 tons. We therefore allow an award of $880.00 on Invoice No. L9.

Invoice No. 20 is for interest on invested capital, reserve fund and equipment, amounting to $1,575.00. The claimant’s contract with the State provides that the State shall hold back 15% of the value of the materials and labor, as estimated by the supervising architect, and that the amount held back shall be paid within 30 days after the contract is finished. At the time of the plumbers ’ strike the reserve belonging to the claimant was in the neighborhood of $38,712.32. It is admitted that about the 1st of July, 1922, an agreement was reached between the claimant and the architect that the claimant was to write a letter to the department requesting that $20,000.00 be paid" on his reserve fund. On July 10, 1922, the letter was written and the payment made. In our opinion, interest on invested capital and equipment is speculative. If the claimant had been working during all the time complained of, it might have made interest on its capital and equipment and it might have lost heavily. From the evidence introduced we are of the opinion that the claimant and the representatives of the State had an understanding that upon payment of the $20,000.00 of the reserve fund no claim would be made for interest. The claim for invoice No. 20 is refused.

Invoice No. 21 is a claim for losses due to inefficiency of labor caused by interference with job organization. We cannot see how we would be justified in allowing claimant an award on this invoice. There is nothing* in the claimant’s contract or the evidence that would justify an award on this claim. Such losses might occur on any contract where a number of different trades are employed, and these facts are taken into consideration by reliable bidders when bidding* on contracts of this kind. The claim is refused.

Invoice No. 22 is the balance due on the contract of June 21, 1921, and the extra contracts, 1, 2, 3, and 4, together with the extras acknowledged by the State amounting to $5,413.60. The evidence shows that since March 28,1924, the date of this invoice, two payments amounting* to $4,668.14 have been made, and a credit for paint to the amount of $336.00 has been given, leaving a balance of $409.46 due on this claim. There is no dispute as to this amount, and we therefore award claimant the sum of $409.46 on invoice No. 22.

Claimant is therefore awarded the total sum of $5,660.72.


source: Caselaw Access Project

author: Mr. Justice Thomas

license: Public Domain

text:
    (No. 859
    Claim denied.)
    Helena Dorothea Burghardt, Administratrix of the Estate of Ernest A. G. Burghardt, also known as Gustave Burghardt, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1926.

    Governmental function — State not liable for injuries sustained by inmate of its institutions. The State in conducting its State Hospital at Dunning exercises a governmental function and is not liable for injuries sustained by an inmate thereof.
    Bamberger & Neumer, for claimant.
    Oscar E. Carlstrom, Attorney General ; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This is a claim filed by Helena Dorothea Burghardt, Administratrix of the estate of Ernest A. G. Burghardt, deceased, for damages for the death of said deceased while an inmate of the Chicago State Hospital at Dunning, Chicago, Illinois.

Ernest A. G. Burghardt was a resident of Cook county, Illinois, and was declared insane by the county court of that county on the 16th day of August, A. D. 1906, and by the order of said court committed to the Chicago State Hospital for the Insane at Dunning, Chicago, Illinois, and remained there as a patient until his death on December 26, 1923. At the time he was committed to the hospital he was. an ornamental iron worker. On the 19th day of June, 1900, he was married to Helena Dorothea Burghardt and lived with her until committed to the hospital. One child, viz., Ernest Adam Gustave Burghardt, Jr., was the issue of this marriage, and he and the widow are the only heirs and next of kin of deceased.

The deceased was in a demented condition for about three months before being committed to the hospital, and he was committed on a petition filed by Gustave Nowak, his brother-in-law. After his commitment to the hospital his mental condition gradually grew worse, though his physical condition remained fairly good up to October, 1917. He suffered from a form of mental disease known as general paralysis of the insane, commonly called paresis, and for more than seven months before his death he was also in poor physical condition. On account of his weakened physical condition he was transferred to the dining room, a one story building, so that he would not have to go out to his meals and would not have far to go out for exercise in the summertime. Just prior to his death he was in a very poor mental and .physical condition, getting quite feeble and gradually declining with no hope of ever being any better. He was' about 58 or 59 years old at the time of his death.

On December 26,1923, about 5:30 in the evening, while the deceased and other inmates of the hospital were eating supper in the dining room, a fire broke out in the closet in the building called Annex 5 of the hospital. At the time the wind was very high from the west, and the fire destroyed Annexes 5, 4, 3, 2, and the dining room in which deceased and a number of other inmates lost their lives. The origin of the fire was undetermined. The employees and attendants at the , hospital did all that was humanly possible for them to do to save the inmates.

The dining room in which deceased lost his life was a one story building equipped with one door opening to the yard and a double door opening into a hall which in turn opened into the yard. This dining room was built mostly of glass, consisting of windows and doors, on the order of a greenhouse, and was originally built for tubercular patients, but owing to the crowded condition, of the hospital was being used at the time of the fire as a dining room.

There is no evidence that this building was constructed contrary to any ordinance of the city or statute of this State, and at the time of the fire it was in as good condition as when originally built.

The evidence in this case shows deceased was incurably insane and that because of his mental condition he would never have been able to contribute any support to his wife, but on the contrary he would have been a burden and a charge to her had he been released from the hospital.

The State has filed a general and special demurrer to the declaration, setting up that the doctrine -of respondeat superior is not applicable to the State; that in the absence of statute the State is not liable for the torts of its officers, agents, or employees; that the State in conducting the Chicago State Hospital at Chicago, Illinois, exercises a governmental function and is not liable for injuries to those in attendance upon said institution or to those in its employ.

In our view of this case, it is not necessary to discuss the evidence in detail. This court has repeatedly held that the rule of respondeat superior is not applicable to the State. (Ryan v. State, 4 Ill. C. C. 57; Schroeder v. State, 3 Ill. C. C. 36.) This court has also held that the State in conducting its charitable institutions is exercising a governmental function and is not liable for damages to the inmates. (Schwab v. State, 4 Ill. C. C. 77; Van Meter v. State, 4 Ill. C. C. 325).

We are therefore of the opinion that the State is not liable in this case and that the demurrer to the declaration should be sustained. The claim is therefore rejected.


author: Mr. Chief Justice Clarity

text:
    (No. 882
    Claimant awarded $2,796.00.)
    Clara Hasson, Administratrix of the Estate of Albert Hasson, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1926.

    Respondeat superior — when State not liable. The State is not liable for injuries sustained by its employees while in the performance of their duty.
    Social justice and equity — award may be made. . Although no legal liability exists against the State an award may be made to widow of deceased, who was killed while in the performance of his duty as an employee of the State, and an award fixed on the basis provided by the Workmen’s Compensation act.
    Miles K. Young, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank R Eagleton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

It appears that Albert Hasson was employed as patrolman of the State Highway Police of the Divisions of Highways of this State at a salary of $150.00 per month, and that while he was so employed on to-wit, the 7th day of September, 1924, upon and along the State highway near Lexington, Illinois, he was killed. There is no dispute as to the facts that he was employed by the State at the time of his death. There is some controversy as to the facts of the accident occurring outside of his territory, or whether or not he was sent to the place by his superiors.

There is no question that as a matter of law, no recovery could be had upon this claim, and therefore the consideration of this claim must be directed upon the proposition of equity and good conscience.

. The court is of the opinion from all the evidence offered that this man was killed in the performance of his duty in regular employment of the State of Illinois, and as it has been heretofore announced by this court, in numerous cases, the employees of the State of Illinois should, as a matter of good conscience, have the same protection as employees of corporations or individuals who would under similar circumstances be granted an award under the Workmen’s Compensation Act.

Therefore it is considered by the court that an award should accordingly be made in this case which would go for the benefit of the widow of the deceased through due course of the administration of the estate of the decedent, there being no children and that element is considered in filing an award.

Therefore, an award is hereby made to claimant in the sum of $2,796.00.


text:
    (No. 1065
    Claim denied.)
    Michael Jordan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1926.

    Statute of limitations — when claim barred by. All claims against the State not filed within five years from the time of their accrual are barred by the statute of limitations, except as to persons under disability. (Par. 10, Sec. I, Court of Claims Act 1917.)
    Scott, Bancroft, Martin, for claimant.
    Oscar, E. Carlstrom, Attorney General ; Frank B. Eagleton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

The claimant was a practicing attorney in the city of Boston, Massachusetts, on or about the thirtieth day of September, 1915, and it is alleged by claimant that Hon. Patrick J. Lucey, then Attorney General of the State of Illinois, entered into an arrangement with the claimant to perform certain legal services in connection with a certain suit by the People of the State of Illinois against one Samuel B. Baymond, formerly county treasurer of Cook county, Illinois, for recovery of inheritance taxes collected by him as such treasurer; that claimant received a payment of $500.00 as retainer and that the sum of money involved was a considerable amount.

There is no controversy at this time on the question of the amount of services or value of such services. The only question before the court for consideration, is raised by the defendant, the State of Illinois, in its plea of the Statute of Limitations.

After consideration of the pleas and exhibits filed, and argument of counsel, it appears to the court that more than five years had elapsed before the filing of the claim in this court and that there appears to be no new promise or any other element that would take the matter out of the Statute of Limitations and also in view of Paragraph 10 of Section 1 of the Court of Claims Act, which reads as follows: “Every claim against the State, cognizable by the Court of Claims, shall be forever barred unless the claim is filed with the Secretary of the court within five years after the claim first accrues, saving to infants, idiots, lunatics, insane persons and persons under disability at the time the claim accrued, two years from the time the disability is removed,” it is considered by the court that said action cannot be maintained in this court.

It is therefore considered by the court that the plea of the Statute of Limitations be sustained and for that reason the case is dismissed.


text:
    (No. 747
    Claim denied.)
    Alfred W. Mayfield, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1926.

      Rehearing denied November 9, 1926.

      Quarantine — right of State to destroy animals infected with contagious disease. The State has the right and power to order the destruction of animals infected with contagious disease, if public interest is best served thereby.

      Same — when State not liable. Where animals are quarantined or killed for the purpose of eradicating a dangerous or infectious disease, the State is not liable to compensate the owner for the loss suffered thereby, in the absence of a statute providing therefor. (Durand v. Dyson, 271 Ill. 382.)

      Same — construction of Sec. 6, of Act of Gen. Assembly 1919, page 211. Tuberculosis among domestic animals. By Section 6, of the Act of 1919, page 211, it was intended by the Legislature that "compensation should only be paid for cattle destroyed by the joint action of the Federal and State departments, and only then when claimant complies with all the provisions of the quarantine regulations.

      Same — State not liable for loss in sale of diseased animals. The Act of 1919, makes no provision for the payment of losses incurred in the sale of diseased animals.
    Jesse Peebles & W. Edgar Sampson, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank E. Eagleton, Assistant Attorney General for respondent.
   Mr. Justice Thomas

delivered the opinion of the court.

This case is brought to recover the loss claimant sustained on the sale of 27 head of tubercular cattle. Claimant’s statement was filed November 16, 1923, and alleges in substance: that in the year 1922 he had a herd of 27 head of milk cattle ; that it was brought to the attention of the Board of Live Stock Commissioners these cattle were the victims of a communicable disease and after an investigation of the cattle claimant’s farm was strictly quarantined as provided by statute; that after said quarantine he was given permission, on March 30, 1922, by F. A. Laird, chief veterinarian of the State, to ship the cattle and sell them, and pursuant to such permission, on or about April 22, 1922, he shipped them to the Producers Live Stock Commission Association at the National Stock Yards; that the cattle were sold and the net proceeds of the sale, amounting to only $253.49, were remitted to him and represent all he received from the sale of the cattle; that before shipping the cattle for sale he caused the value of them to be appraised by competent and disinterested persons who valued 18 head of milk cows at $124.00 each and 9 head of heifers at $80 each; that the difference between the appraised value of the cattle and the price received from the sale of them is the basis of his claim; that because of such quarantine and direction by the State veterinarian he sold said 27 head of cattle; and that the value of the same over the sum of $253.49 was wholly lost to him. The Attorney General has filed a general demurrer to claimant’s statement.

Evidence was taken on behalf of claimant and the State. It shows that a number of the farmers around Carlinville in the summer of 1921 decided to have their dairy herds tested for tuberculosis, and on September 3d claimant signed an agreement to have a test of his herd made. A test was made by Dr. Decker and 16 of his animals were found to be tubercular. On September 9th, these 16 cattle were quarantined and notice of quarantine delivered to claimant. The notice of quarantine contained the following provisions: “It shall be your duty to keep the quarantined animals confined in such manner that other cattle utilized for dairy or breeding purposes cannot come in contact with the same; at the time of disposing of said quarantined animals, notice of shipment or sale must be forwarded to the chief veterinarian on the day of shipment or sale. Blank form of said notice is hereto attached, and must be subscribed and sworn to before a notary public.”

The agreement signed by claimant to have his herd tested contained the following clause: “I will allow no cattle to be associated with my herd which have not passed a tuberculin test approved by the Bureau of State officials. I will keep all new cattle separated from my herd pending the application of a tuberculin test by an inspector of the said Bureau or State. I will notify the proper officials immediately, giving details of the identification, characteristics, and records of tuberculin tests of any cattle which may be added to my herd. ’ ’

The test of claimant’s herd was made and his cattle quarantined under the provisions of the act entitled ‘‘ An act to revise the law in relation to the suppression and prevention of the spread of contagious and infectious diseases among domestic animals,” approved June 14, 1909. Section 2 of this act makes it the duty of the Board of Live Stock Commissioners, the State Veterinarian, or any assistant State Veterinarian, to cause any animals infected with a dangerously contagious or infectious malady to be strictly quarantined.

It is now generally recognized that tuberculosis is a dangerous and contagious malady, and that human beings may contract it by the use of milk from tubercular cows, and under the provisions of the act of 1909 it was the duty of the State officials to quarantine claimant’s herd. Cattle infected with such a disease become a public nuisance and the State has power to quarantine them and, if deemed necessary for the public good, to order their destruction. (Durand v. Dyson, 271 Ill. 382; Thompson v. State, 4 C. C. 26.) Some time after these cattle were quarantined complaint was made to Dr. Laird, Chief Veterinarian of the State, in regard to the manner in which claimant was caring for his herd, and Dr. Jackson R. Brown, an Assistant State Veterinarian, was sent to investigate. Dr. Brown made his investigation on December 22, 1921. Claimant had not kept his infected cattle separate from those not infected as the provisions of the quarantine required he should do, but allowed them to mingle together in his barn lot. Dr. Brown informed him this was a violation of the conditions of the quarantine and instructed claimant that he should keep the infected cattle isolated from the healthy ones. Claimant said he was unable to handle them any differently, and continued to allow them to mingle in his lot until the infected ones were disposed of. After this investigation was made by Dr. Brown, Dr. J. J. Littner, Inspector in charge of tuberculosis eradication work in the State of Illinois, notified claimant that as he had violated the provisions of Ms cooperative agreement cooperation had been withdrawn by the State and Federal departments and they no longer assumed responsibility for tuberculosis eradication in connection with his herd. After this claimant decided he wanted to get rid of his diseased cattle in order to clean up his herd and on March 28, 1922, wrote to Dr. Laird relative to shipping the infected cattle to market. On March 30th, Dr. Laird replied, enclosing a permit to ship the cattle, and in his reply told claimant he had lost his indemnity on the animals. On April 13,1922, the day before the shipment was made, claimant had his entire herd tested. This test was made by Dr. Hammond and showed 27 cows and heifers infected with tuberculosis. On the advice of Ml. Busk, the Farm Advisor of Macoupin County, these infected cattle were shipped by claimant to the Producers Live Stock Commission Association for sale on April 14, 1922, and were sold by them for the account of claimant for the net sum of $253.49. The day before the cattle were shipped claimant states he had them appraised by John Campbell, Charley Moore, B. F. Burke and Harry C. Foltz. This appraisement was not made at the request nor under the direction of either the State or Federal Departments of Agriculture. It has not been introduced in evidence and the record does not disclose how it was made. Mr. Burke and Mr. Foltz were called as witnesses by claimant and testified the 18 cows were worth $125.00 per head and the heifers $50.00 per head. Claimant also called F. D. Gore to prove the value of the cattle and he testified the cows were worth $125.00 per head and the heifers $50.00 to $60.00 per head. Claimant asks to be awarded the difference between these proven values of the cattle and the net sum received by him from their sale.

Hnder its police powers the State has the right to place cattle infected with tuberculosis under quarantine, and to destroy them if deemed necessary to the public welfare, without compensation to the owner. Durand v. Dyson, supra. Where animals are quarantined or killed for the purpose of eradicating a dangerous- and infectious disease the State is not liable to compensate the owner for the loss suffered thereby unless the statute provides for the payment of such loss by the State. And if the statute provides for payment of compensation to the owner, in order to recover it the owner must comply with the provisions of the statute relating thereto.

It is the contention of claimant that he is entitled to compensation under the provisions of the act entitled “An act in relation to the suppression, eradication and control of tuberculosis among domestic cattle and to provide an appropriation therefor”, approved June 28, 1919. Laws of 1919, p. 211. Section 4 of this act provides that the Department of Agriculture, with the consent of the owner, may destroy cattle affected with tuberculosis if the public interests would best be served by their destruction. Section 5 of the act provides that “subject to the provisions hereinafter set forth, the owner of any cattle destroyed under the provisions of this act shall be reimbursed for the loss thus sustained.” Section 6 is as follows: “If any cattle tested for tuberculosis under the provisions of this act shall react to the test, and the owner shall consent to the destruction thereof, such cattle shall be appraised by a board of appraisers, consisting of a representative of the United States Department of Agriculture and a representative of the Department of Agriculture of the State of Illinois. In case of a failure to agree on the valuation, or if the owner refuses to accept the appraised value, the two appraisers, together with the owner, shall select a .third appraiser agreeable to all. The owner shall be bound by the appraisal. The State of Illinois shall pay to the owner of cattle destroyed under the provisions of this act one-third of the difference between the appraised value of such cattle and the proceeds from the sale of the salvage, which the owner shall receive, provided that in no case shall, any payment hereunder exceed $25.00 for any grade animal or $50.00 for any pure-bred animal, and no payment shall be made unless the owner has complied with all lawful quarantine regulations.” - It is clear from the provisions of this section that the Legislature intended that compensation should be paid only for cattle destroyed by the joint action of officials of the Federal and State Departments of Agriculture, and that the amount of such compensation should be fixed by representatives of these two departments if they could agree with the owner, and if they could not so agree, by such representatives and a third person agreeable to them and the owner, and that in no event should compensation be paid to any owner who had not complied with all lawdul quarantine regulations.. Claimant did not comply with the quarantine regulations. These regulations required him “to keep the quarantined animals confined in such manner that other cattle used for dairy or breeding purposes cannot come in contact with the same.” This requirement was plainly stated in the notice of quarantine sent by the chief veterinarian to claimant. It was a reasonable and lawful regulation and one with which claimant should'have complied. He did not do so and his explanation for not doing it is that he could not handle his cattle differently. Inconvenience is no excuse for his not complying with the quarantine regulations.

This statute expressly provides that “no payment shall be made unless the owner has complied with all lawful quarantine regulations.” This provision makes compliance with the quarantine regulations a condition precedent to the right of an owner to receive compensation. Claimant is charged with knowledge of the law. But aside from that he was notified by both the Federal and State officials that his failure to comply with the quarantine regulations would lose bim any right to compensation. In December, 1921, Dr. Brown first called his attention to the regulations when he discovered the infected and healthy cattle were not being kept separate, and told him his failure to comply with them would lose bim his right to indemnity. Claimant did not then isolate the infected cattle but continued to turn the infected and healthy animals out together in the barn lot until the infected ones were disposed of.

The Department of Agriculture did not order these cattle destroyed. It only placed them under quarantine and, at the request of claimant, permitted them to be shipped out for sale. It appears from all the provisions of this act that the Legislature intended to compensate owners only for cattle destroyed by order of the department. The act makes no provision for the payment of losses on the sale of diseased cattle. But even if the act could be construed to include such losses, claimant is barred from recovery by his failure and refusal to comply with the quarantine regulations.

The demurrer is sustained, the claim disallowed and cause dismissed.


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    (No. 805
    Claimant awarded’ $477.47.)
    Peerless Coal Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1926.

    War tax — refund may be made. This case is controlled by the decision of the court in Clark Coal & Coke Co. v. State, supra.

    Graham & Graham, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

The facts disclosed in this claim are similar to the case of Clark, Coal and Coke Company, No. 821, in which 'it appeared that no claim was made for war tax on shipments of coal to Institutions under the control of defendants. Representatives of - defendant were advised that no war tax would be required on freight charges on the shipments of coal made to State Institutions. However after the transaction was closed, the federal authorities collected this tax from claimant and for reasons set forth in the Clark case it is the opinion of this court that claimant is entitled to recover the amount of the tax.

Therefore it is ordered by the court that claimant be allowed the sum of $477.47.


text:
    (No. 806
    Claim denied.)
    M. A. Dunning, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1926.

    Respondeat superior — State not liable. The State is not liable for the negligence of its employees.
    Independent contractor — State not liable for acts of. The State is not liable for the torts or negligence of an independent contractor engaged in the construction of a part of its hard road system.
    Shaw & Huffman, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is for injuries received by claimant in an automobile accident on Section 14 of State Highway Number 1 in Lawrence county. The accident occurred December 3, 1923. The section of the highway where it occurred was then under construction but the pavement had not yet been put down and the road had not been accepted and taken over by the State for maintenance.

Claimant is an oil driller and had been working’ at a well about five miles south of Lawrenceville on the day of the accident. Between five and six o’clock in the evening he started to Lawrenceville in his car. It was raining and dark, and water was over the road. There was a hole, or small washed out place, in the road-bed near a concrete culvert over which claimant had to pass and the wheels of his car dropped into this hole and the car was overturned into a pool of water ■ by the roadside. Claimant was caught under the steering wheel and held there under the water until he was rescued by some parties who happened to be near. When taken out of the water claimant was unconscious, and but for timely assistance would have drowned.

As a result of his exposure claimant alleges he contracted bronchitis and was unable to work for twenty-eight weeks; that his wages were $9 per day and that he should be paid at that rate for the time he lost from - work, amounting to $1,512.00. He also alleges it cost him $75 to have his car repaired and that he paid his physicians $21, for which amounts he also asks to be reimbursed.

Section 12 of the Bond Issue act provides that the public highways upon which such roads are being.constructed shall, during the construction period and continuously thereafter, be under the jurisdiction and control of the Department of Public Works and Buildings, but the duty of maintaining such highways shall rest on the local authorities until such construction work has been completed. Section 14 of State Highway Number 1 was under construction at the time these injuries were received and had not been accepted by the Department of Public Works and Buildings but was still under, the jurisdiction of the local road authorities.

The facts in this case are not disputed, but the Attorney G-eneral has filed a demurrer to the declaration and contends the State is not liable for the injuries received.

The road in question was not being constructed by the agents of the State but by an independent contractor. But even if the contractor could be held to be ah agent of the State, that would not make the State liable, for it is well set-tied that the principle of respondeat superior does not apply to the State.

The Supreme Court of this, State has held in a long line of decisions that towns and counties are not liable for damages caused by the negligence of the agents and officials of such municipalities in constructing and maintaining roads. The reason is that such municipalities are sub-divisions of the State for governmental purposes. Upon the same principle the State, being the whole body of people organized for governmental purposes, is not liable for such damages.

We are, therefore, of the opinion that the State is not liable in this, case, and the demurrer will be sustained, the claim disallowed and the case dismissed.


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    (No. 821
    Claimant awarded $318.56.)
    Clark Coal & Coke Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1926.

    War tax — when State liable to refund. Where coal is furnished, to a Department of the State, under a contract and the bid accepted did not include the Federal War Tax, and it was represented by the proper State authorities at the time the hid was accepted that there would he .no war tax, and afterwards claimant was required by the Federal authorities to pay the tax: Held. The State is liable to reimburse claimant for the tax paid.
    Stevens & Herndon, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

The facts disclosed in this claim and by the testimony offered, are that the State of Illinois purchased coal from claimant for certain of the State Institutions; that the bids for said coal were made at a lump sum price consisting of two amounts, one the purchase price of the coal, and the other the freight rate from the mine from which the coal was to be furnished to the institution to which it was shipped. The freight rate set out in said bids and order did not include a war tax. It appeared that the defendant from the local Federal Internal Revenue office received advice that war tax was not due the Federal Government on shipments of coal purchased by the State and the Federal Government afterwards insisted on the payment of such tax which amounted to $318.56, which amount was paid by the claimant. It further appears from the evidence and statements that the defendant through its Division of Purchases and Supplies represented that there would be suffering in State institutions unless they were furnished coal at that time, and it further appears from the evidence that the coal supply of claimant was contracted for through other channels. However it appears from the evidence that claimant not withstanding the demands from other sources furnished the coal for our State Institutions at a price below the market price. In fact it appears that the freight was advanced by claimant in good faith and it was understood by defendant in' like manner that there would.be no war tax. Therefore, it would appear to this court that in face of the facts disclosed that as a matter of equity and good conscience, if not as a matter of law, that the State should reimburse the defendant, for the amount of this tax. If it were known at the time of the transaction, the tax would have been added and paid by the defendant as a matter of course.

Therefore, it is ordered by the Court that the claimant be allowed the sum of $318.56.


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    (No. 824
    Claimant awarded $159.27.)
    Chicago-Springfield Coal Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1926.

    War tax — when refund may be made. This case is controlled by the decision of the court in .Clark Coal & Coke Co. v. State, supra.

    Stevens & Herndon, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

The facts disclosed in. this claim are similar to the case of Clark, Coal and Coke Company, No. 821-41, in which it appeared that no claim was made for war tax on shipments of coal to institutions under the control of defendants. Representatives of defendant were advised that no war tax would be required on freight charges on the shipments of coal made to State institutions. However after the transaction was closed, the federal authorities collected this tax from claimant and for reasons set forth in the Clark case it is the opinion of this court that claimant is entitled to recover the amount of the tax.

Therefore it is ordered by the court that claimant be allowed the sum of $159.27.


author: Mr. Justice Leech

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    (No. 703
    Claim denied.)
    Louis W. Feil, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1925.

      Rehearing denied January 19, 1927.

    Respondeat superior — State not liable for negligence of its employees. The State is not liable for the negligence or torts of its employees.
    Joel C. Carlson, for claimant.
    Oscar E. Carlstrom, Attorney General ; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

' This is a case for the recovery of injuries sustained by claimant, who sets forth in his declaration that on to-wit: January 23, 1923, he was driving his Oldsmobile touring car on the Lincoln Highway, a state road, his destination being Frankfort, Illinois, and when about eight miles west of Chicago Heights, Illinois, on said Lincoln Highway, the claimant collided with a truck belonging to the State of Illinois used by and under the control of, the Division of Highways of the Department of Public Works and Buildings; that said truck was standing on the right hand side of said Lincoln Highway, but in the roadway; that the person in charge of said truck was in the act of burning some refuse by the side of the highway ; that the smoke from said fire obscured from the view of the claimant the said truck and that by reason of said negligence of the operator of said truck in leaving said truck on the highway and also by reason of the negligence of said operator of said truck in making said fire and causing said smoke to obscure the truck from view of the claimant, the- claimant collided with the truck and almost entirely demolished his Oldsmobile, and injured claimant.

The Attorney General, on behalf of the State of Illinois, has filed a demurrer, which demurrer, as a matter of law, is sustained.

The court has carefully reviewed all the evidence presented in this case, and we find that there is no liability on the part of the State of Illinois; that claimant is guilty of contributory negligence, and that his contributory negligence, in driving through the smoke, at the rate of seventeen or eighteen miles an hour, and keeping on for about 140 or 150 feet through said smoke until he collided with the truck, was the.cause of the accident. There is a conflict in the testimony relative to facts existing at the point of the accident, claimant stating that his view was totally obscured by the smoke, while Rushing testified that he could clearly see the truck twenty or thirty feet away, Rushing being the maintenance foreman and patrolman, employed by the State Division of Highways, and in charge of the Section of the road where the accident occurred.

For the reasons set forth, the demurrer is sustained, and the case dismissed.

Opinion on Rehearing filed January 19, 1921.

The claimant in the above entitled cause has asked for a rehearing of his case. While we have a deep sympathy for this elderly gentleman who was injured while driving on the State highway, we must be guided by the law, and the facts, as we see them. As heretofore stated we believe that this claimant was guilty of contributory negligence, in driving his car through a dense smoke, at the rate of 17 or 18 miles an hour, and keeping on for about 140 to 150 feet through said smoke until he collided with a truck, under the control of the Division of Highways of the Department of Public Works and Buildings. The testimony shows that the operator of the truck saw claimant, although he was 20 or 30 feet away from him, immediately upon the happening of the accident; that another car had passed the truck shortly before the accident occurred, without any trouble.

The decision heretofore rendered is affirmed.


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    (No. 724
    Claim denied.)
    J. S. Neighbors, Administrator of the Estate of Elsie Marie Neighbors, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1926.

      Rehearing denied January 19, 1927.
    Governmental function — when State not liable. The State in conducting its State Hospital at "Peoria, exercises a governmental function, and is not liable for injuries sustained by its employees therein. (Hartley v. State, supra, 4-C. C. Rep. 268, followed.)
    K. C. Ronalds, for claimant.
    Oscar E. Carlstrom, Attorney General ; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim brought hy the administrator of the estate of Elsie Marie Neighbors, deceased, to recover the sum of $10,000.00. It appears from stipulation and other allegations in the case that Elsie Marie Neighbors became an employe of the State of Illinois as an attendant at the Peoria State Hospital in 1917 and afterwards as a nurse; that she became ill in March, 1921; that in August of the same year she was taken to Colorado and that she returned to her home in Galatia, Illinois on April 5, 1922 and that she departed this life on Sept. 9,1922.

It is contended by claimant that at the time the said Elsie Neighbors entered such employment she was in good health; that at the time she became ill in 1921, she was working in a tubercular ward and had been for several weeks prior thereto. It is contended by the defendant and supported by testimony of several witnesses who were nurses at said hospital, and were acquainted with Miss Neighbors, that she was a frail girl; that these nurses did-practically the same kind of work and were on duty in active tubercular work. It is also contended by the defendant that Miss Neighbors was the type of person physically who would be liable to contract this disease.

This court is impressed with the strong argument made by counsel for claimant in that this case is one that should appeal to the sympathy of all persons, and it is a case that warrants the most earnest consideration. We realize the sorrow and heartache of the parents and friends of this girl, but it is the duty of this court to keep within bounds the liability of the State of Illinois as was contemplated by the Legislature in passing the Court of Claims act.

It is conceded that there is no legal liability, and this case cannot be considered as viewed by this court under the rules prescribed in the act commonly called “The Workman’s Compensation Act. ’ ’ Therefore the only question left to consider is whether or not this is an obligation that the State should. in equity and good conscience pay. It is the opinion of this court that from all the evidence in this case there is a doubt as to whether or not this girl would not have contracted this disease sooner or later in other employment. It appears from the evidence that many other attendants and nurses performed the same duties and were exposed to the same dangers of this disease as Miss Neighbors and there is nothing in the evidence to indicate negligence on the part of the management of this hospital in so far as safeguarding the nurses, attendants and patients in so far as practical against disease. It must be conceded also that the training necessary for Miss Neighbors to prepare for work as a nurse would give her sufficient knowledge to understand the hazards and dangers of this occupation and the ability to protect herself in so far as possible, and it would seem that when she entered this employment she well knew the health dangers and hazards of this occupation and consequently assumed the risk, if there was risk in that occupation of such a nature as to hazard the health of persons who were not disposed to contract tuberculosis.

The claimant cites the case of Hartley v. State of Illinois, Vol. 4, page 268, Court of Claims reports, in which case the claimant was employed and at work in a place that was especially attractive to lightning by reason of the existence of a high tension electric transmission wire, and the buildings adjacent thereto or the wall of the penitentiary was re-in-forced with steel and iron, etc. It appears to this court now as it did on passing on the Hartley case that the claimant was exposed to special hazards in doing the particular work he was employed in at the time of his injury; that in the case cited by the claimant, Turner v. The State of Illinois, Vol. 4, page 275 of the Court of Claims reports, the claimant was ordered to take care of the patient who was violent and suffering with smallpox; that claimant was obliged to come in close contact, placing his arms around the patient’s shoulders and neck, holding him upright while he was taking the patient’s temperature; that the attending physician told claimant that there was no danger in his doing so, that claimant was about seven and a half hours in constant attendance upon said patient.

It does not appear to the court that either of these cases could be urged as a precedent to the one now considered by. the court. In both cases cited, extra and unusual hazards were manifest, and there could be no reasonable controversy as to the cause of the injuries complained of.

Therefore it is the opinion of this court that to make an allowance in this line of cases would mean an obligation upon the State equal to that of health insurance and we do not consider that the Legislature intended that this court would extend the obligation of the People of the State of Illinois to that limit. It is true that as a matter of equity and good conscience this court tajíes jurisdiction on cases of unusual hazards and dangers where no doubt could be raised as to the hazards or the causes and where injuries were sustained in course of employment. We are of the opinion however that this- claim cannot be allowed by reason of precedent in this court or through the intention of the Legislature when this court was established, and therefore this claim is disallowed.


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    (No. 751
    Claim denied.)
    Isabel Williams, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 19, 1927.
    , Governmental function — State not liable. The State in constructing its system of hard roads exercises a governmental -function and is not liable for injuries or losses- caused by the negligence of its employees or agents engaged in its construction.
    J. C. Bowman and B. J. O’Neil, for claimant.
    Oscar E. Carlstrom, Attorney General ; S. S. DuHamel, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This is a claim made by Isabel Williams (now Isabel Williams Russell) for damages sustained to her wardrobe, five suit cases, and damages to her car, in an accident which occurved on July 28,1923, when she was driving a Star touring car, on the State Highway four miles south of Carrollton, Illinois, when her car in some manner went down an embankment into a “borrow pit”, as it is termed in the diagram submitted by Gf. E. Corr, and being one of defendant’s exhibits. Claimant alleges that said road at that time was being constructed by the State Highway Commission of Illinois; that there were no barriers placed thereon, nor any signs indicating that the roadway or any fills adjacent thereto were dangerous; that while driving on said road with due regard for her own safety, embankment gave way, hurling her with her automobile and personal effects a distance of thirty-five feet into a ravine filled with water to a depth of ten to twelve feet; that loss to her car is $300.00; that her five suit cases filled with clothes sustained a loss amounting to $3,664.75.

From the evidence we find that all the customary and proper signs were placed along the highway so as to inform claimant of the character of the road over which she was traveling; that the road was 16 feet in width at the point where the accident occurred; that she was not passing any car at the time her car left the road and she went down the embankment. We do not believe that this claim is founded on equity and good conscience for the further reason that the claims made in her bill of particulars for wearing apparel, which had been used, are ridiculous. In her testimony, she admits that she had worn the hosiery, hats, blouses, pajamas, and other articles of wearing apparel mentioned, and she places values such as $400.00 for last season’s hats, $70.00 for hosiery, waist $45.00, gloves $50.00, all of which we believe are unreasonable and exaggerated. The claimant herself is the only witness produced who testified that the grade gave way, and her testimony is rebutted not only by the State’s witnesses, but her own witnesses.

For the reasons above set forth, the demurrer filed by the Attorney General is sustained, and the case is dismissed.


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    (No. 803
    Claimant awarded $1,200.00.)
    Paula Engleman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 19, 1927.

    Non-liability of state — State not liable for injuries sustained by attendant at football game at State University. The State is not liable for injuries sustained1 by an attendant at. a football game at its State University, which injury was caused by the collapse of a defectively constructed bleacher.
    Equity and good conscience — award may be made. While there may be no liability against the State, yet compensation may be awarded as a matter of good conscience.
    Frank F. Trobaugh, for claimant.
    Oscar E. Carlstrom, Attorney General ; S. S. DuHamel, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

This claim was filed by Mrs. Paula B. Engleman, for damages sustained by her, through a fall when the. bleacher upon which she was sitting collapsed and' she was thrown to the ground, while she was in attendance at a football game, on November 28, 1923, at the Southern Illinois State Normal University, she having paid admission to the game which was staged at said University athletic grounds.

To the declaration filed by the claimant, the Attorney General has filed a demurrer which is sustained as a matter of law.

There is evidence of negligence in the construction of these bleachers, and that quite a severe injury resulted to the claimant as a result of her fall.

The claimant offered testimony showing expenses necessarily incurred by her as result of said injuries, amounting to approximately $1,200.00.

While there is no legal liability on the part of the State to make any compensation on account of any injuries received, as a matter of good conscience, we award to claimant Paula B. Engleman, the sum of $1,200.00.


text:
    (No. 831
    Claimant awarded $379.00.)
    Peoria & Pekin Union Railway Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 19, 1927.

      Demurrage — when State liable. Where the State through its authorized agent had notice of the delivery of cars of coal shipped to the State’s institution, it is liable for demurrage charges for failure to unload the cars.
    Barnes, Magoon & Horton, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Justice Leech

delivered the opinion of the court:

The claimant, the Peoria and Pekin Union Bailway Company, have filed a claim in the sum of $379.00 on account of demurrage on cars of coal shipped to the State Hospital at Bartonville, Illinois. The case hinges on the fact as to whether or not defendant had received notice as to the constructive placement of these cars, under the following provision :

“When delivery of a car consigned or ordered to an industrial interchange track, or to other than a public delivery track cannot be made on account of the inability of the consignee receiving it or because of any other condition attributable to the consignee, such car will be held at destination or, if it cannot reasonably be accommodated there, at the nearest available holding point, and written notice that the car is held and that this railroad is unable to deliver, will be sent or given to the consignee. This will be considered constructive placement.” (Item No. 7, Rule 5, Sec. A. of Rules and Regulations contained in Freight Tariff No. 4D.)

There is a direct conflict in the testimony of J. B. Conway, an employee at the Peoria State Hospital, and three witnesses introduced by claimant. We believe that the preponderance of the evidence proves that notices were given as provided for under said rules and regulations, above cited, and that claimant is entitled to be awarded the amount of its claim.

We therefore award to claimant, the Peoria & Pekin Union Bailway Company, the sum of $379.00.


text:
    (No. 846
    Claim denied.)
    Mary E. Janeczko, Administratrix of the Estate of Michael W. Janeczko, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 19, 1927.

    Respondeat superior — when State not liable. The State is not liable for the negligence of its employees, agents or officers.
    Morton J. Stevenson, for claimant.
    Oscar E. Carlstrom, Attorney General ; George C. Dixon, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim brought to recover on account of an accident occurring’ to Michael W. Janeczko which occurred on ■ October 14, 1923, and resulted in the death of the saidz Michael W. Janeczko. It appears that deceased on said date was driving along a paved road known as the Higgins road near Chicago in Cook county, Illinois, and his car slipped or slid overturning and crushing to death the deceased.

It appears further by allegations that this particular stretch of road over which the accident occurred, or the cement part of it, had been completed and traffic permitted to go on it. However the shoulders of the road appeared not to be finished and at the point where the accident occurred, it is claimed there were ditches. There is some controversy however as to the depth or extent of the ditches.

It appears further that workmen had been drawing dirt across the cement roadway at this point and had cleaned the dirt from the cement however as far as the same could be taken off by the scraper and that there was some of the dirt remaining on the cement roadway when a rain occurred preceding the accident causing, it is alleged, a particularly slippery place at the point of the accident, the completed cement being eighteen feet wide at the point of accident.

This court considers that it is well settled by the courts of this State and it has been announced repeatedly by this court “that the doctrine of respondeat superior does not apply to the State, counties, townships, etc.” and that the State is not liable for the misfeasance, wrongs or negligence of its officers, agents or servants. Therefore this case cannot be considered from the' viewpoint of any legal liability on the part of the State. This rule must control in this case. Therefore if there should be any question considered here as to an allowance to the claimant, it should be considered from the viewpoint of equity and good conscience.

From all the evidence in this case we find first, that before deceased came to the point where the accident occurred he was confronted with signs reading “Danger, Slow, Men Working”, and although it was Sunday and there were no-workmen in sight, these signs were sufficient to cause an ordinarily prudent person to proceed very cautiously and it is further assumed by the court that a person driving a car and exercising the ordinary care and caution for his safety, would observe this particular wet or muddy place on the highway, and if it appeared to him to be dangerous to pass, taking into consideration the ditches on the shoulders of the road, he could stop, turn around or back out. This thought is suggested whether or not the car was being driven slowly and carefully. One of the witnesses testified that from the marks on the pavement after the accident that the tires had slipped along the pavement 150 feet or thereabouts before the car went off the side of the pavement into the ditch. This would indicate that the car must have been driven at a considerable rate of speed. It would appear to the court from the evidence last mentioned and from a reasonable deduction of all the circumstances and reasoning that can be considered in-this case in addition to the fact of the signs giving danger warning that there is considerable quality of assumed risk manifest in this case.

It is further considered by the court that from all the facts and circumstances that this case cannot be considered under the rule of equity and good conscience. Therefore, it is recommended by this court that this claim be disallowed.


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    (No. 849
    Claimant awarded $980.66.)
    City of Springfield, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 19, 1927.

    Special assessments — when State liable. Where a municipal corporation under a special assessment ordinance makes an improvement and by-reason of such local improvement the property of the State is benefited, and the Legislature makes an appropriation to pay the principal of the assessment * on the property of the State, the State is liable to pay the interest on the assessment in like manner as individuals or other property owners.
    Edmund Burke and W. Edgar Sampson, for claimant.
    Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This claim was brought to recover interest accruing through the paving of Adams and Monroe streets by the city of Springfield in the year 1922. Monroe street is immediately north of the State Capitol building and fronting thereon are the Capitol grounds, the Arsenal and the State Electric Light plant. Adams street is one block north.

The cost of each of the improvements was provided for by special assessment. ' The ordinance for the improvements provided also that the assessments might be paid in yearly installments, the deferred payments to bear interest.

The 53d General Assembly made an appropriation to pay these assessments and it appeared that this money was offered to claimant on July 5, 1923, but claimant refused to accept such payments until on or about July 23,1924, insisting that interest should be paid also.

It appears from the evidence in this case that State property was benefited by these improvements, the same as individual property owners involved in this improvement. The Legislature made an appropriation for the payment of the principal of these assessments. Therefore, it would appear to the court as a matter of equity and good conscience, the State should respond in like manner as the law provides in the case of an individual, citizen and property owner and consequently should pay interest on these assessments in like manner. However, it is the opinion of this court that such ■ interest should only be paid,up to the time the State offered to pay the principal which date appears to be July 5, 1923.

The claimant did not accept the money for nearly a year after the State first made the offer of payment. We are of the opinion that interest should not be charged after the offer of payment was made. It appears that the amount of interest due or accruing on these assessments up until July 5, 1923, will amount to $980.66.

Therefore, it is recommended by this court that the claimant be given an award in the amount of $980.66.


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    (No. 924
    Claimant awarded $416.00.)
    Indiana Bridge Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 19, 1927.

      Contract — -when State liaMe. There being no dispute as to the facts ■ and the law in this case the court enters an award in favor of claimant for the amount of his claim.
    Sampson & Giffin, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This is a claim for extra labor in changing the design and construction of the Peoria Armory at Peoria, Illinois.

On the 10th of May, 1923, claimant entered into a written contract with the defendant to provide all the materials and perform all the work shown on the drawings and described in the specifications for structural steel of the Armory building' for the National Guard at Peoria, for an agreed price of $28,-230.00.

On the 27th day of July, 1923, the defendant, through the Department of Public Works and Buildings, entered into a supplemental contract with claimant whereby claimant agreed to deliver and erect.an additional steel truss for the building, together with columns, purlins, girts and lintels, for an additional sum of $6,400.00. This additional work made it necessary to change the drawings and, by direction of the supervising architect of the defendant, the necessary changes, were made.

The Attorney General, on behalf of defendant, has filed a statement and attached thereto a letter from the supervising engineer of the defendant in which he admits that claimant is entitled to an award for the changes made in the design and construction of the Armory. The proof of the claim is in the form of affidavits and claimant actually expended $416.00 in having these changes made. Claimant is therefore awarded the sum of $416.00 to reimburse it for the amount expended in having the changes made in the drawings.


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    (No. 929
    Claimant awarded $303.43.)
    William C. Bodman, Conservator of the Estate of Lyman L. Bodman, an Insane Person, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 19, 1927.

      Reimbursement — award may he made. There being no dispute as to the facts in this case the court enters an award in favor of claimant.
    Pomeroy & Martin, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank E. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is for $303.43 paid to the Kankakee State Hospital for the support of Lyman L. Bodman while he was an inmate of said institution.

The Attorney General has filed a statement, to which is attached a letter from the director of the Department of Public Welfare in which the director admits the claim is just and recommends that it be allowed, and the Attorney General consents to an award in favor of claimant for that amount.

Claimant is therefore awarded the sum of $303.43.


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    (No. 935
    Claimant awarded $351.25.)
    The County of Will, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 19, 1927.

      Reimbursement — when Slate liable.- The State is liable to the County of Will for costs and expenses incurred in the prosecution of convicts for crime committed in the State Penitentiary at Joliet. (Sec. 39, Chap. 108, Hurd’s Rev. St. 1917.)
    Hjalmar Rehn, States Attorney, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This is a claim for $351.25 filed by Will County, Illinois, for costs and expenses incurred by that county in the prosecution of Thomas Ivers, alias James Murphy, for the murder of Julius Charles Waldman on December 29,1924, the defendant and deceased both being inmates of the Joliet penitentiary at the time of the killing. The case was tried in the Will county Circuit Court and the defendant convicted and sentenced to 18 years in the Joliet penitentiary.

The Attorney General has filed a statement admitting the amount stated in claimant’s declaration to be correct, and consents to an award in its favor for the sum claimed.

Section 39 of chapter 108 of Hurd’s Revised Statutes of Illinois, 1917, provides that all fees and costs arising from the prosecution of convicts for crimes committed in the penitentiary at Joliet, which the county is now required to pay in like cases, shall be paid by the State. Under the provisions of this statute it is the duty of the State to reimburse the county for the fees, costs and expenses incurred and paid by it in the prosecution of the defendant, and claimant is therefore allowed an award in the sum of $351.25.


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    (No. 937
    Claim denied.)
    Indian Refining Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 19, 1927.
    Special assessment — property of State not liadle for. The property of the State is not subject to taxation or special assessment for a local improvement.

      Same — when claimant not entitled to refund for mistake in payment of. Where a special assessment is extended against property by mistake and the assessment so levied is paid by one not the owner thereof, it is the duty of the municipal corporation to correct the, mistake, and the State is under no obligation to refund the claimant the tax paid even though the property belongs to the State.

      Same — when defense may be waived. A judgment entered against a person or his property without his having notice of the proceedings in which the judgment is rendered cannot be enforced, but such defect can be waived, and a payment of moneys under such judgment is a voluntary payment and no legal liability arises for a recovery of the moneys paid.
    McGaughey, Tohill & McGaughey, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant is the owner of that portion of Blocks 7 and 8 in the city of Chicago bounded on the east by Western Avenue, on the west and north by the right of way of the Union Stock Yards and Transit Company Railroad Company and on the south by Illinois and Michigan canal property which is owned by the State. It is about 90 feet from, the southeast corner of claimant’s property to the canal. This strip of 90 feet is part of the canal tract and was formerly used for a towpaih. There is a bridge over the canal where it intersects Western Avenue. In 1922 the city proposed to improve Western Avenue by the construction of a cement sidewalk along the west side of the avenue and across this 90 foot strip of canal land. To pay the cost of this improvement a special assessment was levied and, at the October term, 1922, of the county court of Cook county, was approved and confirmed. No assessment was levied or extended against the 90 foot strip but the cost of building the walk across that strip was levied and extended against the above property of claimant. Claimant had no knowledge of the proposed assessment and the confirmation thereof until December 22, 1922, on which date it received a letter from the county treasurer informing it that if the assessment was not paid its property would be sold. On Janu-. ary 13, 1923, claimant paid the assessment amounting to $108.31. This suit is for the recovery of the sum so paid from the State. The above facts are all set forth in the declaration. The declaration also charges “that erroneously and by mistake the cost of constructing said cement sidewalk over and across said distance of ninety feet of the property of the State of Illinois was extended, assessed and confirmed against the property of claimant.” The declaration further alleges that claimant paid the assessment “for the purpose of protecting its own interest and preventing the sale of its property and the accumulation of costs and expenses necessarily incident thereto”, and “that upon the discovery of said mistake it applied to the proper authorities of the city of Chicago for a refund of said sum so erroneously assessed, extended and confirmed against its said property but that said authorities refused to make refund to claimant. ’ ’

The Attorney G-eneral has filed no pleading to the declaration, but has filed a statement reciting he is not filing a statement, brief and argument but submits the claim for the consideration of the court.

No evidence has been taken in dhe case but there is filed with the declaration as an exhibit a copy of a check showing the payment of $108.31 by claimant on January 13, 1923, and also a copy of a receipt from the county treasurer showing payment of the assessment. That claimant paid the amount assessed against its property is not questioned. But there is also filed with the declaration as an exhibit a copy of a letter addressed to claimant by W. L. Saclcett, Superintendent of Waterways, in which he says: “You are advised that the strip of land referred to is part of the towpath and'reserved strip of the Illinois and Michigan canal being property of the State of Illinois and not subject to taxes or special assessments.”

If the property is not subject to special assessments, then the city of Chicago had no power to levy a special assessment against it and claimant would acquire no right against the State by paying such assessment even though it was extended against claimant’s property by mistake. All property belonging to the State is exempt from taxation. The Illinois and Michigan canal belongs to the State, and the city had no power to assess any of the canal strip for street improvements. (Chicago v. Ridge Park Dist., 317 Ill. 123.)

It is alleged in the declaration that the cost of constructing the sidewalk was to be paid for by special assessments and that such assessments were levied and extended and afterwards confirmed by the county court. It is well settled in Illinois that no property can be assessed for a local improvement unless such improvement will benefit the property, and the assessment can never exceed the benefits received. Property can only be assessed to pay the cost of an improvement which will benefit the property for the use to which it is devoted. Where land is restricted to a special use the measure of benefits which it may receive from a local improvement is the increased value of the property for such special use, not its increased value for some probable future use. (Bensenville v. C. M. & St. P. Ry. Co., 316 Ill. 352.) The strip of ground in question was formerly used for a towpath and its use was restricted to canal purposes. It is difficult to see how it could have been benefited for those purposes by the construction of the sidewalk. And unless its value for canal purposes would be increased by the construction of the walk, it could not be assessed even were it not exempt from such assessments.

Claimant charges the assessment was levied and extended against its property by mistake. There is nothing in the record to sustain this allegation of the declaration. The authorities of the city of Chicago are presumed to know the . law and to perform their duties in accordance with it. It will not be presumed that they intended to extend an illegal assessment against property of the State. It appears that the sidewalk extends from the southeast corner of claimant’s property to the bridge over the canal, and the city authorities may • have determined that the construction of the walk would benefit claimant’s property the amount assessed against it. If the assessment was extended against claimant’s property by mistake, as claimant alleges, it was the duty of the city authorities to have the error corrected when their attention was called to .it. Their refusal to make any correction lends strength to the presumption no error was made.

Claimant alleges in its declaration that it had no notice of the levy and extension of the assessment against its property or of the hearing in court on the confirmation of the assessment, and that it did not learn thereof until December 22, 1922. If it be true that this assessment was made and confirmed without notice to claimant, it was void in so far as it affected claimant’s property, and its collection could not be enforced. “It is elementary that a judgment entered against a party or his property without his having had notice of the proceedings in which the judgment was entered and without his having had an opportunity to be heard cannot be enforced.” (City of Chicago v. Jerome, 301 Ill. 587.) C laimant avers in its declaration that it paid the assessment for the purpose of preventing costs and expense. Claimant had a right to waive the defect in the judgment and pay the amount assessed against its property in order to save expense if it saw fit to do so. Claimant’s payment of this unenforceable judgment was voluntary and for its own benefit — to save it cost and expense — and does not give it any right to claim reimbursement from the State. Had claimant taken the proper course to protect its rights, it would neither have had to pay the assessment nor would its property have been sold. So far as this record shows the State was not a party to the assessment proceedings and had no knowledge thereof. If the city had made the State a party to the proceedings and had asked for an assessment against its property, the State could have defended on the ground that the property was not subject to assessment, or would not be benefited by the improvement, or that the assessment was greater than the benefits, or upon any ground it saw fit to urge. It is fundamental that every owner of property has a right to be heard before judgment is rendered against it. To hold that claimant can recover in this case is to deprive the State of this fundamental right. The claim is denied and the suit dismissed.


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    (No. 939
    Claim denied.)
    George W. Brown, Administrator of the Estate of Anna L. Brown, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 19, 1927.

    Non-liability of state — not liable for negligence of officers of sub-division of the State. The State is not liable for the negligence of officers of a sub-division of the State.

      Same — when court is without jurisdiction. The court will not take jurisdiction and consider claims arising through the negligence of officers or other authorities of sub-divisions of the State.
    Huber & Reidy, f or claimant.
    Oscar E. Carlstrom, Attorney General ; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim brought to recover on account of an accident that resulted in the death of Anna L. Brown on the 7th day of November 1924. The injury was caused by the slipping of a Ford automobile, in which the deceased was riding, from a high road into a ravine at a point where the< road crossed a culvert. The injury was sustained on a road in the township of Buffalo Prairie in the county of Rock Island, State of Illinois, and that at the time of the accident and for several years prior thereto said road at the place of accident was maintained, controlled and operated by said township of Buffalo Prairie operated by said township through its elected and appointed officers according to a. stipulation between said parties herewith filed, and it was further stipulated that said road was not at the time of the accident maintained, controlled or operated by the State of Illinois nor any of its officers or agents excepting in so far as the township road officers are exercising a State function in the performance of their duties and that it was not a part of any of the State roads or Bond issue roads of the State.

There can be no contention as to any legal liability of the State. It does not appear that there is any authority for this court to consider this case as a matter of equity or good conscience and it is the opinion of this court that if the State of Illinois assumed every liability caused by a defective dirt road throughout the State that the obligation would be overwhelming and would be an obligation far from that which the legislature had in mind when this court was created.

It is the opinion of the court that this comes within the rule announced many times, that this court would not take jurisdiction to consider the allowance of claims that might arise through the negligence of officers or other authorities in townships or other similar organizations of the State. Therefore this claim is disallowed.


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    (No. 947
    Claimant awarded $1,286.55.)
    Glens Falls Insurance Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 19, 1927.

    Privilege tax — when refund may he made. There being no dispute as to the facts in this case the court enters an award in favor of claimant.

      Same — when refund may he made of overpayment. Where it clearly appears that through an error claimant overpaid the amount due the State for its privilege tax an award for the overpayment will he made.
    C. J. Doyle, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This is a claim filed by the Glens Falls Insurance Company for a refund of $1,286.55 privilege tax overpaid to the Department of Trade and Commerce of the State of Illinois in the year 1924. This amount was paid by claimant to the city collector of the city of Chicago and, under the provisions of the statute, should have been credited on the amount of claimant’s assessment for the year 1923, payable in 1924, but, through an error on its part, no claim for such credit was made.

The Attorney General has filed a statement, to which is attached as an exhibit a letter from the director of the Department of Trade and Commerce stating that claimant was entitled to credit on its assessment for the amount paid the city of Chicago as fire department tax, and recommending that upon due proof of such payment the claim be allowed. A letter from the city collector of Chicago, which is also made a part of the statement, shows that on August 21, 1923, claimant paid the city of Chicago the sum of $1,286.55 as fire insurance tax.

The Attorney General files his written consent to an award being allowed claimant in the sum of $1,286.55. It is manifest that claimant has paid a double tax to the extent of the claim filed, and we therefore allow it an award of $1,286.55.


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    (No. 967
    Claimant awarded $350.00.)
    Clifford C. Hood, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 19, 1927.
    Non-liability of state — not liable for acts of its militiaman. The State is not liable for the torts of a State militiaman while engaged in military movements.
    Social justice and equity — award may Be made. Although the State is not liable for property damage caused by the act or tort of its militiaman, while in military movement, an award may be made to reimburse claimant for the damage sustained.
    E. P. Field, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

On August 29, 1925, a tractor belonging to Battery B, 123rd Field Artillery, while being driven along a street in Monmouth, Illinois, by a private of the organization, in military movement, under command of a superior officer, crashed » into the automobile of claimant and badly damaged it. .

On September 3, 1925, the board of officers of the 123rd Field Artillery met and heard evidence as to the cause of the accident and the amount of the damages. The board found that the accident was unavoidable and was caused by a defective .steering apparatus on the tractor, and that neither the driver of the tractor, the owner of the automobile nor the officer in command was to blame. They further found the amount of damages to the automobile to be approximately $350.

The Attorney General has filed a statement, attaching thereto and making a part thereof a letter from the Adjutant General. In the Adjutant General’s letter he states that the claim is a just, one against the State, and that he does not wish to contest it.

The State is not legally liable for an act of a State militiaman while in military movement. Therefore, this claim is rejected.

However, as it appears there is merit in this claim, as an act of social justice the court recommends to the General Assembly that it appropriate-to the claimant the sum of $350.00 to reimburse him for the damage sustained.


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    (No. 982
    Claimant awarded $192.50.)
    Watling Manufacturing Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 19, 1927.

    Franchise tax — when refund may be made. Where a franchise tax has been erroneously paid after the expiration of charter of the corporation it is entitled to a refund of the tax paid.
    Bangs & Frankhauser, for claimant.
    Oscar E. Carlstrom, Attorney General; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This is a claim for a refund of a franchise tax erroneously paid by claimant to the Secretary of State after the expiration of its charter in January, 1924.

It is admitted by the Secretary of State that claimant’s charter had expired prior to the payment, and the Attorney General has filed his written consent to an award being allowed claimant in the sum of $192.50.

As it is clear no tax was due from claimant, we accordingly award it the sum of $192.50.


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    (No. 984
    Claimant awarded $596.20.)
    County of Will, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 19, 1927.

      Reimbursement — when State liable. Convicts trial. The State is liable for the costs and expenses incurred in the prosecution of convicts for crimes committed in the State Penitentiary.
    Hjalmar Rehn, States Attorney, for claimant.
    Oscar E. Carlstrom, Attorney General ; Frank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This is a claim filed by the county of Will for $596.20 for fees, costs and expenses incurred and paid in the prosecution of Otto Malm for the murder of John Mack on the 16th day of July, 1925, both being prisoners in the State Penitentiary at Joliet at that time. Malm was indicated and tried at the following September term of the Circuit Court of Will county., and was convicted and sentenced to the penitentiary for life.

The Attorney General has filed a statement in this case, to which is attached as an exhibit a letter from the warden of the penitentiary at Joliet. The statement and letter both admit that the facts set out in claimant’s declaration in this case are true and correct, and the Attorney General in his statement consents to an award in favor of claimant in the sum of $596.20.

Section 39 of chapter 108 of Hurd’s Revised statutes of 1917 provides that all fees and costs arising from the prosecution of convicts for crimes committed in the penitentiary at Joliet shall be paid by the State. Under this statute claimant is entitled to be reimbursed by the State for the amounts paid by it in the prosecution of that case. We therefore allow the claimant an award in the sum of $596.20.


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    (No. 985
    Claimant awarded $213.75.)
    County of Will, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 19, 1927.

      Reimbursement — State liable for expenses of trial of convict. This case is controlled by the decision of the court in the case of County óf Will v State, supra.

    Hjalmar Rehn, States Attorney, for claimant.
    Oscar E. Carlstrom, Attorney General ; Prank R. Eagleton, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is filed by Will county, Illinois, for $213.75 paid out by claimant for costs, fees and expenses incurred in the prosecution of Howard Johnson, alias Howard Talbert, for the murder of Jerry Meyers on September 15, 1925. At the time of the killing - both Johnson and Meyers were serving sentences in the State Penitentiary at Joliet, and the murder was committed in said penitentiary. Johnson was indicted for murder by the Will county grand jury at the September term, 1925, of the Circuit Court, and at the same term he was arraigned and plead not guilty. After a jury was empaneled he withdrew this plea and plead guilty to the charge of murder, and was sentenced to the penitentiary for his natural life.

The Attorney General has filed a statement on behalf of the State, and attached as an exhibit to his statement a letter from the Warden of the State Penitentiary at Joliet, in which he admits the facts alleged in the claimant’s declaration and consents to an award in favor of claimant in the sum of $213.75, the amount claimed in the' declaration.

Under the provisions of Section 39 of Chapter 108 of Hurd’s Revised Statute of 1917 and the admitted facts in this case, claimant is entitled to be reimbursed by the State for the amounts paid out by it on account of the prosecution of Johnson, and we therefore allow claimant an award in the sum of $213.75.