author: Mr. Justice Linscott

text:
    (No. 1819
    Ella H. Braden, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 7, 1936.

    John H. Searing, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim was filed with the Clerk of the Court of Claims on October 22, 1931, and alleges that on February 23, 1931, the claimant was employed at the East Moline State Hospital at Bast Moline, Rock Island County, Illinois, a charitable institution, as an attendant, and while so employed on February 23, 1931, and while in the performance of her duties, she was bitten on the little finger on the right hand by a patient known as Bertha Beloy; that the finger so bitten became infected and amputation became necessary, and the right hand has become permanently disfigured, and a claim is filed for the sum of $5,000.00,

The Attorney General filed a motion to dismiss for the reason that no claim for compensation was made until more than six months had elapsed from the time of the injury.

It appears from the files that notice was given in apt time, but attached to the claim is “Exhibit A” which is a notice for a claim for compensation. That claim is dated September 8,1931; was directed to the Hon. Louis L. Emmerson, Governor of the State of Illinois, and upon the notice is the following language: “Received a copy of the above notice on the 19th day of September, 1931.” Although the claim is dated on September 8, 1931, we must hold that the Governor did not receive the notice of claim until the date of his receipt therefor which was the 19th day of September, 1931.

It has been repeatedly held by the Supreme Court of Hlinois that the making of a claim for compensation within the prescribed period is jurisdictional and a condition precedent to the right to maintain a proceeding under the statute. (See American Car and Foundry Co. vs. Industrial Com., 335 Ill. 322.) Supplement to Anger stein on The Employer and the Workmen’s Compensation Act of Illinois, page 675 and cases therein cited.

Whether or not a claim has been made as required, is a question of fact to determine like any other similar question. Ño special form of claim for compensation is prescribed. The claimant in this case has attached “Exhibit A” as her claim for compensation, and we must assume the date therein mentioned to have been the date that compensation was claimed.

It appears from the petition that petitioner has filed herein, that no claim for compensation was made within six (6) months from the time of the injury, and this court is, therefore, as a matter of law, without jurisdiction, and the motion of the Attorney General must be sustained.


source: Caselaw Access Project

license: Public Domain

text:
    (No. 2333
    Frances S. Coolidge, Francis S. Coolidge, Administratrix of the Estate of Clifford H. Coolidge, Deceased, vs. State of Illinois, Respondent.

      Opinion filed July 7, 1936.

    Clifford N. Coolidge, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claim was filed in this court on February 28, 1934, alleging that on the 1st day of October, 1931, C. H. Coolidge was employed to work in the laundry of the Illinois Soldiers ’ and Sailors’ Children’s School at Normal, Illinois, that his wages were Ninety Dollars ($90.00) per month; that his duties were that of a laundryman, that is, he washed the clothes of the inmates of the institution and used certain soaps, corrosive acids, lyes and chemicals for the cleaning of said clothes that were harmful to the human skin and body; that his hands became chapped and the skin cracked; that on the 19th day of February, 1933, the right hand became infected with blood poisoning from the use of the water, lyes, acids, soaps and chemicals, and that decedent died on the 28th day of February, 1933; that notice was given on the 28th day of March, 1933; that the deceased left him surviving, Frances S. Coolidge, his wife, Barbara Coolidge, his daughter, Robert Heketh Coolidge, his son, Clifford N. Coolidge, his son and Beatrice Cole, his daughter. Claimant further alleges that Frances S. Coolidge and Barbara Coolidge were dependent upon the said Clifford H. Coolidge, and that they are now without means of support, and that they relied solely upon said Clifford H. Coolidge for the furnishing and supplying of the necessities of life. Damages in the sum of Four Thousand Dollars ($4,000.00) are claimed.

The ages of the different children are not averred.

An amendment to the declaration was filed on June 15, 1934, averring that the infection occured on the 13th day of February, 1933 and not on the 19th day of February.

The Attorney General has moved to dismiss and sets up. two grounds. (1) That no claim for compensation was made within six months as required by law. (2) Application for compensation was not filed within one year, pursuant to Section 24 of the Compensation Act. Other grounds are also alleged, but under the view we take of this case, it will be unnecessary to discuss them.

It has been repeatedly held that the making of a claim for compensation within six months and the filing of an application within one year from the date of the accident, are jurisdictional. It appearing from the face of the declaration in this case, which we have treated as an application for compensation, that the application was not filed within one year, we must hold that we have no jurisdiction. For further discussion of the law as we view it, see William Hopkins vs. State of Illinois, No. 2097, recently decided by this court.

We must, therefore, decide the motion of the Attorney General in the affirmative, and dismiss the case.


author: Me. Justice Linscott

text:
    (No. 2097
    William Hopkins, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 7, 1936.

    Clarence T. Smith, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

The claimant, William Hopkins, filed his claim in great detail in this court on March 28, 1933. In brief, the claim for compensation alleges that he was duly appointed a member of the State Highway Maintenance Police on the 3rd day of October, 1929, and faithfully performed all the duties of his office up to the time of his injury, which was on the 11th day of July, 1930, when he was acting pursuant to instructions of his superior officer in removing a motorcycle from Springfield, Illinois, where it had undergone repairs, to the Village of Clay City, Illinois; that he was in company with another officer; that while enroute from Springfield to Clay City, and between the cities of Effingham and Flora and near a small Village known as Hord, they stopped for the purpose of obtaining- a drink of water, and the claimant while endeavoring to start his motorcycle again to complete his journey, and while in the exercise of due care and caution, the claimant fell with the motorcycle, and fell beneath it and as a result thereof, the claimant received a permanent injury to his left knee, as well as other injuries.

It is stipulated that the claimant suffered a permanent disability to the extent of thirty-five per cent (35%) loss of the use of the left limb. It is averred and stipulated that the State had due notice of the injury, and the extent of the injury is not questioned by the Attorney General.

The claimant received the sum of One Hundred Seventy-five Dollars ($175.00) per month during the time of his total disability, and all doctor, hospital and medical bills were paid by the State of Illinois, but no settlement was made with the claimant for the permanent injury sustained.

It appears in the stipulation that claimant was the father of one child, who was dependent upon him, but it does not" appear that he had a wife who was living at the time of the injury.

It also appears in the stipulation, that he was unable to continue in that line of employment. His salary apparently was paid to bim from the time of the injury, July 11, 1930, up until December 1, 1930 when he was again replaced in the service, but was unable to continue the work.

On November 2, 1930, he wrote Mr. Walter L. Moody, Superintendent of State Highway Maintenance Police. In this letter he described how the accident occurred; his injuries; stated that his knee was showing improvement in strength and movement and that he hoped to be able to perform his duties soon, and he also enclosed bills that he incurred on account of the accident. On November 24th of the same year, he wrote and stated that he had a broken knee cap and a badly sprained left arm. In neither letter, did he make any claim for compensation. On April 10, 1933, he wrote Mr. L. M. Taylor, Superintendent of State Police, describing his physical condition, and quoted F. J. Webber concerning X-ray pictures that had been taken, but did not make a claim for compensation.

Section 6 of the Court of Claims Act provides that this court must hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any employee of the State, such determination to be made in, accordance with the rules prescribed in the Act commonly called the “Workmen’s Compensation Act.” In a brief filed by the Attorney General, our attention is directed to Section 24 of the Workmen’s Compensation Act, which provides that no proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident, provided that in any case, unless application for compensation is filed with the Industrial Commission within one year after the date of the injury or within one year after the date of the last payment of compensation the right to file such application shall be barred.

The sole issue presented is: Whether a claim for compensation was made in conformity with the provisions of the Workmen’s Compensation Act.

It has been repeatedly held that the making of a claim for compensation within the prescribed period is jurisdictional and a condition precedent to the right to maintain a proceeding under the statute. (See American Car and Foundry Co. vs. Industrial Com., 335 Ill. 322; City of Rochelle vs. Industrial Com., 332 Ill. 386; Inland Rubber Co. vs. Industrial Com., 309 Ill. 43, and there are many other cases to the same effect.) No special form of claim for compensation is prescribed and the claim need not be in writing, but it must apprise the employer that the employee has sustained injuries of such a character as to entitle him to compensation and that a claim therefor will be made.

There is no evidence in the record that the employer was apprised of any claim for compensation prior to the filing* of the application for its adjustment on March 28, 1933.

Would the fact that the State had paid claimant’s wages up until December 1, 1930, be a waiver on the part of the State that a claim for compensation was not made? And can it be said that the State lulled the claimant into the belief that he would be paid compensation by reason of the fact that the State paid all hospital and medical bills and paid his wages for a period of six months? We feel that the Supreme Court has decided this case in the negative. (See Lewis vs. Industrial Com., 357 Ill. 309.)

We must, therefore, hold that we have no jurisdiction in this case, and must deny the claim.


author: Mr. Chief Justice Hollerich

text:
    (No. 2041
    Carl H. Little, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 8, 1936

    Harold J. Taylor, Paul Taylor and G. P. Denton, for claimant.
    Otto Keener, Attorney General; Glenn Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

For over twenty years prior to April 1st, A. D. 1931 claimant was an employee of the respondent in the Division of Highways. On the last mentioned date, while employed as maintenance foreman near Effingham, Illinois, he sustained accidental injuries which arose out of and in the course of his employment. He was helping some men under his charge load a heavy tar kettle into a truck when the kettle slipped and was thrown against him, whereby he was seriously injured, sustaining a fracture of the twelfth dorsal and first and second lumbar vertebrae, which have since become anchylosed. He was taken to St. Anthony’s Hospital at Effingham, where he remained for seventeen days; he was then placed in a cast and removed to his home. He.was confined to his bed at home for over two months; thereafter he moved about in a wheel chair for about two months, and was then permitted to move about on crutches. About March 1st, A. D. 1932 his condition had improved to such an extent that he went back to work for respondent but at lighter work than he previously performed, although he received the same salary as he received in his previous position, to wit, $160.00 per month. His new employment was as foreman of beautification projects, which did not require any heavy manual labor on his part. He performed all of the duties of such position until September 3d, 1932. On the last mentioned date, while lifting a lawn mower into the back of his automobile coupe, in the performance of the duties of his position, he again injured his back and fell to the ground unconscious. He revived after a short time and was able to drive home. He remained at home about two weeks and then reported back for work, and although he was physically able to perform but few of the duties of his position, he was continued on the payroll until January 30th, 1933, at which time he was discharged. During the time from September 3d, 1932 to January 30th, 1933 claimant was paid his full salary of $160.00 per month.

Claimant had only a common school education, and was fifty-one years of age at the time of the accident. He had two children under sixteen years of age at the time of the accident on September 3d, 1932.

On January 5th, 1933 claimant filed his claim in this court to recover the bill of St. Anthony’s Hospital in the amount of $83.85 and the bill of Dr. Damron in the amount of $371.00 for hospital and medical services rendered him on account of his said injuries. Thereafter Dr. Damron filed a claim (No. 2180) on his own behalf, and on behalf of St. Anthony’s Hospital for the same services, which said claim was allowed on May 31st, 1935 and has since been paid.

On February 13th, 1933 claimant filed an amendment to his complaint in which he asks for compensation for the injuries sustained by him as aforesaid.

In his complaint as amended, although claimant set forth both the accidents of April 1st, 1931 and September 3d, 1932, he apparently based his right of recovery on the accident of April 1st, 1931. The Attorney General urged that the complaint should be dismissed on account of claimant’s failure to make claim for compensation within six months after the accident and to file his complaint within one year after the date of the injury or the last payment of compensation as required by Section 24 of the Workmen’s Compensation Act. Claimant now takes the position that his present physical condition is the result of the accident of September 3d, 1932. If he is correct in his position, there is no merit to the contention of the Attorney General, for the reason that the amended complaint was filed within six months after the date of said accident.

As the result of the injury of April 1st, 1931 claimant was rendered more susceptible to his second injury than he otherwise would have been. Prior to September 3d, 1932 he was able to perform all of the duties required of him as foreman of beautification projects, but after such injury he was unable to do such work or any other work which required lifting, bending or heavy manual labor. As said by the Supreme Court in the case of Powers Storage Co. vs. Ind. Com., 340 Ill. 504, “His employer accepted him as an employee in the physical condition in which he was and is liable for any accidental injury occurring to him arising out of and in the course of his employment.”

In the ease of Rittler vs. Ind. Com., 351 Ill. 353, the Supreme Court said: “Mere predisposing physical condition does not affect the right to compensation. If an accident results in a lesion, or a new condition of which it is the proximate cause, there may be a recovery of compensation for the same, regardless of predisposing conditions making the employee more susceptible to the injury.”

Claimant had recovered from his first injury sufficiently to return to work as a foreman of beautification projects, and was performing all the duties required of him in connection with such work, until the time of the second accident. He is now unable to do the work which he previously performed, or any other work which requires lifting or bending. His very limited education prevents him from procuring any work of a clerical nature. There is nothing in the record to dispute claimant’s contention that his present condition is the result of the accident on September 3d, 1932 and we therefore find that the claimant’s present condition is the result of such accident.

It is conceded that at the! time of both accidents, the claimant and the respondent were operating under the terms and provisions of the Workmen’s Compensation Act, and that both accidents arose out of and in the course of claimant’s employment. The only questions to be determined are the nature and extent of claimant’s injuries, and the amount of compensation to be paid therefor.

Claimant contends that he is completely and permanently disabled. There is no question but what claimant’s condition is permanent, but the evidence does not sustain his claim of complete disability.

During the time which elapsed between the second injury and the date of his discharge, that is, from September 3d, 1932 to January 30th, 1933, claimant performed some of the duties of his position, and received his full salary of $160.00 per month; and claimant concedes that the amount paid him as salary as aforesaid should be deducted in determining the amount of compensation to which he is entitled.

The testimony in the record shows that between January 30th, 1933 and June 17th, 1936 claimant earned the sum of $218.50 in different employments, to wit: as a laborer for the CWA; foreman for CWA; weighing tomatoes; selling school supplies; as election judge; as court bailiff; and for jury service. There is nothing in the evidence to indicate that he was able to earn anything over and above the amount last stated. Prior to his injury the average amount which he earned was $1,920.00 per year. Under the evidence he is entitled to an award for partial permanent disability.

Under the provisions of Section 8D of the Workmen’s Compensation Act a person who is partially incapacitated from pursuing his usual and customary line of employment is entitled to a sum “equal to fifty per centum of the difference between the average amount which he earned before the accident and the average amount which he is earning or is able to earn in some suitable employment or business after' the accident.”

Under the provisions of Section 7H3 of the Act, the amount of the respondent’s liability is limited to Forty-eight Hundred Dollars ($4,800.00), and under Section 8J3 claimant’s compensation is payable in weekly installments of Sixteen Dollars ($16.00) per week.

Under the evidence, claimant is entitled to recover the limit permitted by the Workmen’s Compensation Act, to wit, the sum of $4,800.00. From this amount, however,, there must be deducted as aforesaid the amount paid claimant for hisf salary between September 3d, 1932 and January 30th, 1933, to wit, Seven Hundred Seventy-eight Dollars and Eighty-four Cents ($778.84), leaving the net amount of the award Four Thousand Twenty-one Dollars and Sixteen Cents ($4,021.16).

Compensation has accrued from September 4th, 1932 to July 6th, 1936, to wit, Two Hundred (200) weeks, at $16.00 per week, to wit, the sum of Thirty-two Hundred Dollars ($3,200.00). Deducting the sum of $778.84 paid to claimant as his salary from September 3d, 1932 to January 30th, 1933 as aforesaid, leaves Twenty-four Hundred Twenty-one Dollars and Sixteen Cents ($2,421.16) as the amount payable to July 6th, 1936. The balance of said award, to wit, Sixteen Hundred Dollars ($1,600.00), is payable in One Hundred (100) weekly installments of $16.00 per week commencing on July 13th, 1936.

Award is therefore entered in favor of the claimant for the sum of $4,021.16, payable as follows: $2,421.16 forthwith; and the balance of $1,600.00 in 100 weekly installments of $16.00 per week, commencing July 13th, 1936.

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

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


author: Mr. Justice Tantis

text:
    (Nos. 2774-2781-2783-2785-2787-2789-2793-2799-2813-2822, Consolidated
    C. Lombardo, et al., No. 2774, California Wine Co., No. 2781, Golden Mist Wine Co., No. 2783, LaPerla Vineyard Co., No. 2785, Pacific Wine Co., No. 2787, Frank Cimino, No. 2789, Fruit Industries, Ltd., No. 2793, Vincent Bondi, No. 2799, Joe Grein and H. Pahls, Inc., No. 2813 and E. G. Lyons and Raas Co., No. 2822, Claimants vs. State of Illinois, Respondent.

      Opinion filed July 8, 1936.

    Allen H. Schulz, for claimants.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

A stipulation has been filed in the above entitled cases that inasmuch as the above claims involve the same questions of fact and law and the claimants are represented by the same Attorney, all of said matters may be considered under the one-stipulation of facts. Under each claim a refund of license fees previously paid under the direction of the Illinois Liquor Control Commission is requested.

The respective amounts of the several claims are as follows:

C. Lombardo, et al...........................No. 2774 8400.00
California Wine Co........................... 2781 250.00
Golden Mist Wine Co......................... 2783 250.00
La Perla Vineyard Co........................ 2785 250.00
Pacific Wine Co............................. 2787 250.00
Frank Cimino ............ 2789 250.00
Fruit Industries, Ltd....... 2793 250.00
Vincent Bondi............. 2799 250.00
Joe G-rein and H. Pahls, Inc. 2813 250.00'
E. G. Lyons and Haas Co.... 2822 250.00

Claimants are all engaged in the business of bottling bulk wines for resale in the City of Chicago. Two classes of distributors are provided for in the wording of the statute, i. e.

“A distributor who receives bulk wines from licensees in Illinois; and an importing distributor who may bring bulk wines into Illinois from other states. The fee for an importing distributor’s license is $250.00. The fee for a distributor’s license is $100.00. The license fee for the manufacture of wine and beer is $500.00.”

Par. 25, Sec. 4, Art. 5, Chap. 43, Dram Shops Article 5, Section 1 of said Chapter 43 provides as follows:

“Licenses issued by the Department of Finance upon the direction of the Illinois Liquor Control Commission shall be in the following classes:
(a) Manufacturer’s license
(b) Importing distributor’s license
(c) Distributor’s license
(d) Retailer’s license
(a) A manufacturer’s license shall allow the manufacture, storage and wholesale distribution and sale of alcoholic liquors to licensees in the State and to persons without the State as may be permitted by law.
(b) An importing distributor’s license shall allow the wholesale purchase, importation and storage of alcoholic liquors to licensees in this State and to persons without the state as may be permitted by law; and shall permit the purchase of alcoholic liquor in barrels, casks or other bulk containers and the bottling of such alcoholic liquors before resale thereof, but all bottles or containers so filled shall be sealed, labeled, stamped and otherwise made to comply with all provisions, rules and regulations governing manufacturers in the preparation and bottling of alcoholic liquors.
(c) A distributor’s license shall allow the licensee to do all the things provided for in paragraph (b) of this section for an importing distributor’s license, except the importation of alcoholic liquors.”

Under the provisions of Article 3, Section 12, Par. 15, Chap. 43 of the Dram Shop Statute the Illinois Liquor Control Commission is given the following powers:

“(2) To fix hy regulation the standards of manufacture of alcoholic liquors not inconsistent with Federal law in order to insure the use of proper ingredients and methods in the manufacture and distribution thereof, and to establish rules, not inconsistent with Federal laws, for the proper labeling of containers or .barrels, casks or other bulk containers or bottles of alcoholic liquor manufactured or-sold in this. State.”

Under what the Commission understood to he its power it adopted the following regulation:

“Any person who acquires any aeoholic liquors and bottles or changes the containers of such alcoholic liquor, either in its original condition or after having rectified, blended or fortified the same, is deemed to be a manufacturer and is required to obtain a manufacturer’s license.”
Regulation 6(a) Joint Rules and Regulations of Illinois Liquor Control Commission and Department of Finance, effective February 1, 1934 and issued in pamphlet form. (Rescinded May 31, 1935.)

As originally promulgated, regulation 6(a) of the Joint Bules and Begulations of the Ulinois Liquor Control Commission and the Department of Finance, would have required each claimant to procure a license to manfacture wine and beer, such license fee being Five Hundred ($500.00) Dollars. Prior to the first day of May, 1935, when the fiscal license period commenced, claimants objected to the payment of a license fee on the basis of Five Hundred ($500.00) Dollars, contending that under the statute they were not manufacturers but were distributors and that as such, each of claimants, other than C. Lombardo (Claimant No. 2774), were importing distributors and therefore subject to a license payment of only Two Hundred Fifty ($250.00) Dollars each, and that C. Lombardo was a distributor only and as such was subject only to the payment of a license fee of One Hundred ($100.00) Dollars.

The question of the construction of the Dram Shop Act and the regulation of the Commission and of the apparent conflict between the two was brought to the attention of the Commission prior to May 1,1935. Claimants in each instance objected to the payment of a manufacturer’s license of Five Hundred ($500.00) Dollars but was of necessity compelled to be licensed under the Illinois Law on May 1, 1935 or discontinue their business. Each of said claimants therefore paid the sum of Five Hundred ($500.00) Dollars for a Class B manufacturer’s license; such payment being made under a written protest. The record shows that the Illinois Liqqor Control Commission at that time stated that it would recommend a refund as soon as the regulation could be rescinded to conform to the statute, and that the Department of Finance stated that it would not be necessary for claimants to go through any legal procedure to obtain same. Claimants relied upon such instructions and filed no suits for temporary injunctions in regard to said funds. On May 31, 1935 Regulation 6(a) as above set forth, was duly rescinded by the unanimous vote of the Commission and a recommendation for the refund of the amount due the several claimants was sent to the Department of Finance, the Commission then stating that, “An importing distributor is given the right to bottle wine; that a Class C license is sufficient license to cover the applicant.” An inquiry was directed by the Finance Department to the Attorney General’s Office as to the power of the Department to make such refunds. Noting no specific provision in the statute authorizing a refund in a case of this kind, the Attorney General ruled that the Finance Department could not comply with the recommendation of the Liquor Control Commission. The claims were thereupon filed in the Court of Claims.

The court does not regard these claims as analogous to those in which a franchise tax has been paid under the terms of a statute then existing and which was later declared unconstitutional, in which cases as indicated in The Arundel Corporation vs. State, 8 C. C. R. 506, an award will be denied. The statute under which claimant was required to obtain his license was plain and specific. An importing distributor’s license was stated to be Two Hundred Fifty ($250.00) Dollars, and a distributor’s license One Hundred ($100.00) Dollars. The privilege which each was to enjoy by reason of said license was also clearly set forth under Paragraphs (b) and (c) of Article 5, Section 1, Chapter 43, We believe the over-payments made by claimants should be treated in each instance as a mistake of fact and that as such, a refund of the amount overpaid should be due.

“Where payment of a Franchise Tax is made under a mutual mistake of fact a refund will be made.
Comm. Nat. Bank & Trust Co. vs. State, 7 C. C. R. 122.
Fowler Mfg. Co., Ltd. vs. State, 8 C. C. R. 160.
“Claimant having inadvertently paid more than it was legally required to pay without any fault on its part, claimant should be reimbursed in the amount of such excess payment.”
Automatic Recording Safe Co. vs. State, 8 C. C. R. 366.

We do not regard the conflicting regulations of the Illinois Liquor Control Commission as controlling, when in conflict with the expressed provisions of the statute, and it is apparent that the Commission was of the like opinion, for the conflicting regulation was promptly rescinded. An award is hereby recommended to the several claimants as follows:

C. Lombardo, J. Finocchiaro and J. Gumbo, operating as
Lombardo Wine Co., No. 2774........................... $400.00
California Wine Co., Inc., No. 2781......................... 250.00
Golden Mist Wine Co., Inc., No. 2783....................... 250.00
LaPerla Vineyard Co., Inc., No. 2785...................... 250.00
Pacific Wine Co., Inc., No. 2787............................ 250.00
Fruit Industries, Ltd., No. 2793............................ 250.00
Vincent Bondi, No. 2799.................................. 250.00
Joe Grein and H. Pahls, Inc., No. 2813..................... 250.00
E. G. Lyons and Haas Co., Inc., No. 2822................... 250.00

It appears from the record that claimant Frank Cimino, No. 2789 is indebted to the State of Illinois in the sum of Five Hundred Fifty ($550.00) Dollars. An award is therefore made in favor of Frank Cimino in the sum of Two Hundred Fifty ($250.00) Dollars for the use of the State of Illinois; same to be credited by the Department of Finance upon the said indebtedness of Five Hundred Fifty ($550.00) Dollars due and owing by the said Frank Cimino to respondent.


author: Mr, Chief Justice Hollerich

text:
    (No. 2756
    Claude Baker, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1936.

    N. E. Hutson, for claimant.
    Otto Keener, Attorney General; Glenn A. Teevor, Assistant Attorney General, for respondent.
   Mr, Chief Justice Hollerich

delivered the opinion of the court:

Prior to and on October 16th, 1934 claimant was an employee of the Illinois Emergency Belief Commission and was working for such employer at the canning center in Monticello, Illinois.

On the last mentioned date, claimant sustained accidental injuries to his thumb, which arose out of and in the course of his employment, and on November 15th, 1935 filed his complaint herein asking for compensation for the injuries so sustained, as well as for money paid and advanced for medical care, hospitalization, etc.

It is not questioned that both employer and employee on the date of the accident were operating under and bound by the terms and provisions of the Workmen’s Compensation Act of this State.

The Attorney General moved to dismiss the case for the reason that application for adjustment of claim was not filed within the time required by Section 24 of the Workmen’s Compensation Act.

Thereafter the Attorney General requested that his motion be considered as applicable only to the claim for compensation, as distinguished from the claim for medical and hospital services, and admitted that claimant was -entitled to recover the sum of $120.70 for medical and hospital services incurred and paid by him.

Thereafter the claimant agreed that his claim might be dismissed as to all matters except the claim for medical and hospital services in the amount of $120.70.

Under the provisions of Section 8A of the Workmen’s Compensation Act, the employer is required to furnish the necessary first aid, medical and surgical services and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the injury. The employer having failed to furnish such services, claimant was authorized to procure and pay for the same, and having done so, is entitled to be reimbursed therefor.

Under the previous decisions of this court the requirements of Section 24 of the Workmen’s Compensation Act do' not apply to a claim for medical, surgical or hospital services, as distinguished from compensation.

Under the stipulation in the record, claimant is entitled to an award in the amount of $120.70 for medical, surgical and' hospital bills incurred and paid by him in connection with the injuries so sustained by him as aforesaid.

The employer in this case being the Illinois Emergency Belief Commission, such award should be paid from the funds of such Commission hereto appropriated and set apart for the payment of compensation awards for injuries or death sustained or suffered by employees of such Commission, and not from the Boad Fund or the General Fund of the State of Illinois.

We therefore recommend that payment be made by the Illinois Emergency Belief Commission to the claimant in the sum of One Hundred Twenty Dollars and Seventy Cents ($120.70), in the manner provided by law.


author: Mb. Justice Yantis

text:
    (No. 2913
    H. Channon Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1936.

    A. L. Sullivan, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

From the record herein it appears that on March 19, 1934 claimant sold and delivered to respondent one dozen Bernard nippers or nail cutters at an agreed price of Six and 12/100 ($6.12) Dollars, for use at the Lincoln State School and Colony at Lincoln, Illinois. In a report under date of March 27, 1936, P. J. Waters, Managing Officer of said institution, states that said merchandise was received and that it was due to an error upon the part of one of the institution’s employees that the invoice was not cleared for payment before the appropriation therefor had lapsed. Under such circumstances, as heretofore held in Rock Island Sand and Gravel Co. vs. State, 8 C. C. R. 165 and other cases, claimant is clearly entitled to payment.

An award is therefore 'made in favor of claimant in the sum of Six and 12/100 ($6.12) Dollars.


author: Mr. Justice Yantis

text:
    (No. 2890
    Adam Conder, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1936.

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

delivered the opinion of the court:

Claimant seeks a return of Four ($4.00) Dollars on account of excess payment made by him for an automobile license for a Dodge sedan for the year 1934. The record shows that the horse power of said car was erroneously listed as 27.4 when it should have been 23.4. A report dated May 14, 1936 from the Secretary of State shows that»the statement upon which the claim is based is correct and that claimant paid an excess fee of Four ($4.00) Dollars through said mistake.

Under the ruling heretofore followed, that excess license or franchise payments made by claimant under a mistake of fact will be refunded, claimant is entitled to an award in the present instance. (Martin vs. State, 8 C. C. R. 200.)

An award is therefore made in favor of claimant in the sum of Four ($4.00) Dollars.


text:
    (No. 2353
    Izora Green, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1936.

    Cart, H. Peeihs, for claimant.

      Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim was filed in this court on March 30, 1934, alleging that on November 14, 1933, the deceased, Charles R. Green received an injury by reason of an accident arising out of and in the course of his employment by the State of Illinois, which injury resulted in the death of the deceased on the 23rd day of December, 1933. The claimant is the wife of the deceased. Deceased was employed at the time of the accident as Captain of the Guards of the Illinois State Penitentiary located at Stateville, Illinois. He received $144.00 per month, and worked under the direct supervision of the Warden of the penitentiary. At the penitentiary, it is conceded, that employees and inmates are engaged in the manufacture of goods, manufacture of auto license plates, etc. in which power driven machines are used; that excavation and landscape work was being done in and about said institution and grounds and that there was a quarry at the penitentiary for the blasting of stone in which dynamite was used, which work the deceased supervised and personally directed.

The claimant further alleges that on the morning of November 14, 1933, the deceased had arrived at the institution to do his daily work, and was on the grounds of the penitentiary, and had given the witness, Andrew J. Patrick, another employee, instructions as to the nature of his work for the day in the license plate factory, and while proceeding along the roadway in front of the institution, he was struck and run down by an automobile driven by one Frank G. Parker. He was carried on the bumper for some fifty yards. Deceased was taken to the prison' hospital.

Dr. Louis H. Miller in answer to written interrogatories stated that he was a physician and surgeon at Pana, and had given particular reference to the treatment of traumatic injuries. He had graduated in 1909 and had hospital experience at St. Mary’s at Chicago, and practiced at Pana, Illinois, since graduation, except for one year when he served ás a ward surgeon at Embarkation Hospital, Newport News, Virginia. He is local surgeon for the B. & 0. Railway Company and the Chicago & Eastern Illinois Railway Company, and had acted in such capacity for a number of years. He is also a surgeon for a-.number of local industries, such as coal mines, lumber yards, creameries, ice and cold storage plants, etc., and at that time had been doing surgical work for eight or ten doctors. After reciting his injuries, the doctor was of the opinion that death was directly due to an embolus, as the result of the injuries which occurred to deceased approximately six weeks prior to his death.

Dr. Frank J. Chmelik was also called as a witness. His qualifications were admitted by the Attorney General. He had been prison physician for the last seven years, and was still employed there. With reference to deceased’s injuries, Dr. Chmelik testified that when he first saw him at the hospital, he was in terrible agony and shock; that he found both legs broken, a back injury, and a fracture of the left third transverse lumbar process. He stated that he had an opinion based upon a reasonable degree of medical certainty from those facts and from his observation and treatment and the injuries which he observed, that the cause of his death was the result of the injuries which he sustained, that is, a blood clot had become loose and either lodged in the brain or the heart.

Under the facts in this case, we are of the opinion that the deceased died as the result of injuries arising put of and in the course of his employment.

Testimony shows that the deceased left no children under sixteen years of age, and received a salary of $1,728.00 per year. No question arises as to notice or claim for compensation within six months or filing of application within one year. Award is therefore entered in favor of the claimant for the sum of $4,000.00.

From the date of the injury, which caused his death, up to the present time, September 8, 1936, 147 weeks has elapsed, and claimant is now entitled to $15.00 per week for said 147 weeks, or the sum of $2,205.00; the balance of said award of $4,000.00, i. e., $1,795.00, should be paid at the rate of $15.00 per week.

This award being for the death of a State employee, is subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 2nd, 1935.

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


text:
    (No. 2889
    Illinois Central Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1936.

    Graham & Graham, for claimant.
    ■ Otto Kernbr, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On or about the 9th day of December, A. D. 1913 the Illinois Central Eailroad Company and the Board of Administration of the State of Illinois (controlling the Lincoln State School and Colony) entered into a written contract covering the construction and maintenance of a certain railroad track serving the Lincoln State School and Colony at Lincoln, Illinois.

Pursuant to the terms and provisions of such contract the respondent is required to keep and maintain said track in good condition so long as it is used for the benefit or accommodation of the respondent. Such contract also provides that in case the respondent fails and neglects to maintain said track in good condition for a period of five days after being notified of the necessity for repairs, the respondent shall be required to reimburse said claimant for all expenses so incurred, including ten per cent on labor, to cover supervision and use of tools, and fifteen per cent on material to cover freight and cost of handling.

During the months of January and February, 1935, and again in the month of May, 1935, it became necessary to make certain repairs on said tracks in order to keep the same in good condition. Such repairs were made by the claimant in accordance with the aforementioned contract and a statement of the cost thereof was rendered to the respondent. The cost of such repairs so made in January and February, 1935, as aforesaid, aggregated the sum of $352.81; and the cost of such repairs so made in the month of May, 1935, as aforesaid, aggregated the sum of $9.67.

Itemized statement of the amount due the claimant for the repairs made in January and February, 1935, as aforesaid, was presented to the respondent on April 15th, 1935. It seems that such statement was lost or mislaid, and thereafter other statements covering the amount claimed for the repairs made during January and February, 1935, as well as for the repairs made during May, 1935, were presented to the respondent. Payment was then refused on the ground that the appropriation out of which such payment should have been made had lapsed.

The claim has been checked and investigated by the acting chief clerk of the Lincoln State School and Colony and found to be correct, and no reason is suggested why the same should not be paid.

Where services have been rendered or supplies furnished to the State, and payment therefor has been refused solely on account of the lapse of the approprition out of which payment should have been made, and where the amount of the claim is not questioned, an award will be made for the amount due for such services and supplies. Journal Printing Co. vs. State, 8 C. C. R. 673; Schreiber Lumber Co. vs. State, 8 C. C. R. 381; Rock Island Sand and Gravel Co. vs. State, 8 C. C. R. 165.

Award is therefore entered in favor of the claimant for the sum of Three Hundred Sixty-two Dollars and Forty-seven Cents ($362.47).


text:
    (No. 2651
    Adora Ellen Jones, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1936.

    James J. McCauley and L. B. Palmer, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant is the widow of Charles I. Jones who, on the 7th day of December, A. D. 1934, was an employee of the Illinois Emergency Belief Commission. Mr. Jones had been assigned by the Emergency Belief Commission to the State Highway Department and was working under the supervision of George A. Whipple, Highway Maintenance Supervisor of the respondent, at or near the intersection of S. B. I. Boutes 23 and 19 near Harvard, Illinois. About 9:30 a. m. on December 7th, 1934 Mr. Jones was acting as a flagman, flagging traffic for other members of the gang who were then working on the highway. While in the performance of his duties, he was struck by an automobile driven by one Claire W. Floyd, and sustained injuries which resulted in his death on the same day.

Under the evidence in the record we find as follows :

1. That on December 7th, 1934 said employer and said employee were operating under and bound by the terms and provisions of the Workmen’s Compensation Act of this State.

2. That on said date claimant’s intestate sustained accidental injuries which arose out of and in the course of his employment, and which resulted in his death on the same date.

3. That notice of the accident was given and claim for compensation on account thereof was made in accordance with the requirements of Section 24 of the Workmen’s Compensation Act.

4. That said decedent left him surviving the claimant, Adora Ellen Jones, his widow, whom he was under legal obligation to support, and no child or children under the age of sixteen years.

5. That the wages of claimant’s intestate at and prior to the time of the accident were Thirty-five Cents (35c) per hour, and counsel for claimant concede that she is entitled only to the minimum award under Section 7A of the Act.

6. That under the provisions of Section 7A of the Workmen’s Compensation Act, claimant is entitled to an award in the amount of $2,500.00.

The employer in this case being the Illinois Emergency Belief Commission, such áward should be paid from the funds of such Commission heretofore appropriated and set apart for the payment of compensation awards for injuries or death sustained or suffered by employees of such Commission, and not from the Boad Fund or the General Fund of the State of Illinois.

We therefore recommend that payment be made by the Illinois Emergency Belief Commission to the claimant in the sum of Twenty-five Hundred Dollars ($2,500.00), in the manner provided by law.


author: Mb. Chief Justice Holleeich

text:
    (No. 2491
    Louis A. Karcher, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1936.

    William H. Schuwerk, for claimant.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Holleeich

delivered the opinion of the court:

Prior to and on September 2d, 1933 claimant was employed by the respondent as a steward at the Southern lilinois Penitentiary located at Menard. On the last mentioned date, while in the performance of his duties, claimant was •passing from the officers’ kitchen to the kitchen for convicts at a time when an institution truck passed within four feet of him, by reason whereof some foreign substance was thrown into his left eye. He immediately went into the office and had such foreign substance removed, and also applied argarol to such eye. It continued to bother him, and on September 4th he went to his home at McLeansboro where he consulted Dr. Hall. During the time which intervened between September 2d and September 24th he was also treated by Dr. Burnett, the institutional doctor at Menard. On September 24th he went to the Haley Eye Infirmary at Oentralia for treatment. The condition of the eye continued to grow worse, and it was finally determined that it would have to be removed. The eye was therefore removed on February 21st, 1934.

Claimant was paid $90.00 for temporary total disability, and has specifically waived all claim for compensation for such disability.

Upon consideration of the record in this case we find as follows:

1. That on September 2d, 1933 said employer and said employee were operating under and bound by the terms and provisions of the Workmen’s Compensation Act of this State.

2. That on said date said employee sustained accidental injuries which arose out of and in the course of his employment.

3. That notice of the accident was given and claim for compensation on account thereof was made in accordance with the requirements of Section 24 of the Workmen’s Compensation Act.

4. That the earnings of the claimant during the year next preceding the injury were $1,368.00, and that the average weekly wage was $26.30.

5. That at the time of the accident in question, claimant had two children under the age of sixteen years, to wit, Dorris May Karcher, 10, and Louis William Kareher, 8.

6. That necessary medical, surgical and hospital services were not provided by the respondent; that the claimant secured such services at his own expense, and became indebted therefor in the total amount of $162.00.

7. That claimant is entitled to have and receive from said respondent the following sums, to wit:

a) $15.78 per week for a period of 120 weeks commencing on September 3d, 1933, to wit, the sum of $1,893.60, for the loss of the sight of the left eye.

b) $162.00, being the amount of medical, surgical and hospital bills necessarily incurred by claimant.

8. That the total amount of the compensation to which claimant is entitled as above set forth has accrued prior to the date of this hearing.

Award is therefore hereby entered in favor of the claimant in the sum of Two Thousand Fifty-Five Dollars and Sixty Cents ($2,055.60), payable as follows:—

To Louis A. Karcher the sum of Eighteen Hundred NintyThree Dollars and Sixty Cents' ($1,893.60); x

To Louis A. Karcher, for the use of Haley Eye Infirmary, the sum of One Hundred Sixty-Two Dollars ($162.00);

Total, Two Thousand Fifty-Five Dollars and Sixty Cents ($2,055.60.)

This award being for injuries sustained by a State employee, is subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved-July 2d, 1935.

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


author: Mb. Justice Linscott

text:
    (No. 2603
    Sophie Lagerhausen, Executrix of the Estate of Martha Rosen, Deceased, Widow of Ernest Rosen, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1936.

    Hamlin & Cleary, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

The original claim in this matter was filed February 16, 1935, setting up that on the 12th day of June, 1934, Ernest Rosen received an injury by reason of an accident arising out of and in the course of his employment, which injury resulted in his death on the 14th day of June, 1934; that Martha Rosen was his widow, and at the time of his death, he was past 65 years of age.

It is stipulated that he was working on Lake Street, the same being a State Highway, approximately one and one-half miles West of Addison, Illinois, in DuPage County, at the time of his accident, cutting the weeds and grass on the shoulders of the State Highway, with a mower drawn by a team of horses.

He left no children under sixteen years of age and no one dependent upon him for support, except his wife.

After the original complaint was filed, his widow, Martha Rosen, died on the 9th day of March, 1935, and Sophie Lagerhausen was appointed executrix of her last will and testament.

A stipulation appears in the record wherein it is agreed by and between the Attorny General and counsel for the claimant, that the deceased, Ernest Rosen, died as the result of an injury which arose out of, and in the course of his employment. The record does not disclose how long he had been ■in the employ of the State, nor the number of days each year that he worked. It does appear that he received as compensation, $0.45 per hour, but the record does not disclose the •number of hours per day that he worked nor the number of days per week.

The following is an itemized list of expenses that were incurred with the accident and the burial of the deceased:

G. F. Schroeder, M. D., Itasca, Illinois.......................$41.00
E. W. Marquardt, 185 S. York St., Elmhurst, Illinois......... 15.00
Helen Marquardt, nurse, Elmhurst, Illinois................... 8.00
Vivian Johnson, E. N., 417 Main St., Glen Ellyn, 111........... 5.00
Dolores Fox, E. N., 417 Main St., Glen Ellyn, 111............. 8.00
Elmhurst Hospital, Elmhurst, Illinois........................ 43.75
Dzur & Karstens, undertakers, Eoselle, Illinois............... 560.00
Eev. Zersen, minister at funeral, Itasca, Illinois.............. 10.00
Mr. Elberts, Itasca, Illinois.................................. 2.00
Emil Westphal, Sr., Church Sexton.......................... 2.00

It appears that the Highway Department had notice of Mr. Rosen’s injury on the date that it occured and of his death, shortly thereafter.

Under Section 7 of the Workmen’s Compensation Act, the amount of compensation which shall be paid for an injury to the employee resulting in death shall be:

(a) If the employee leaves any widow, child or children whom he was under legal obligations to support at the time of his injury, a sum equal to four times the average annual earnings of the employee, but not less than $2,500.00 nor more than $4,000.00.
Section 10
(d) As to employees in employment in which it is the custom to operate throughout the working days of the year, the annual earnings, if not otherwise determinable, shall be regarded as three hundred times the average daily earnings in such computation.
(c) As to employees in employment in which it is the custom to operate for a part of the whole number of working days in each year, such number, if the annual earnings are not otherwise determinable, shall be used instead of three hundred as a basis for computing the annual earnings; Provided, the minimum number of days which shall be so used for the basis of the year’s work shall be not less than two hundred.
(g) Earnings for the purpose of this section shall be based on the earnings for the number of hours commonly regarded as a day’s work for that employment, and shall exclude overtime earnings.
(i) To determine the amount of compensation for each installment period, the amount per annum shall be ascertained pursuant thereto, and such amount divided by the number of installments per annum.

Under Section 21 of the Workmen’s Compensation Act.

Any right to receive compensation hereunder shall be extinguished by the death of the person or persons entitled thereto.

It is admitted that the deceased was receiving $0.45 per hour, but the number of hours he worked per day and the number of days he was employed during the year, is not in the record. The court will, therefore, consider eight (8) hours as a day’s work, pursuant to Paragraph 23, Chapter 48, Revised Illinois Statutes for 1935. Work on roads, keeping them in repair, free from obstructions, ice, etc. is carried on during the entire year. Therefore, we consider this employment as being one in which it is a custom to operate throughout the working days of the year. The employment being for eight (8) hours per day and three hundred (300) days per year, at $0.45 per hour, as we figure it, the weekly wage would be $20.76, and one-half thereof is $10.38.

In the case of the Board of Education vs. Industrial Commission, 298 Illinois 61, it was held that:

Under Section 21 of the Workmen’s Compensation Act the death of a beneficiary who leaves no dependents does not preclude all right to compensation but said section only extinguishes the right to receive payments which become due after the death of the beneficiary, and hence the administrator of a beneficiary who dies without leaving dependents is entitled to the weekly payments of the award from the death of the employee to the death of the beneficiary, even though the beneficiary died before the award was made.

From June 14, 1934 to March 9, 1935, the time of the death of the deceased’s widow, is a total of thirty-eight and two-sevenths weeks.

We, therefore, recommend an award in favor of claimant’s intestate, in the sum of Three Hundred Ninety-Seven Dollars and Forty Cents ($397.40.)

Claimant also asked for expenses on account of the doctor, nurse hire, hospital and funeral bills, including a $10.00 fee for the minister, service for the church sexton, undertaker and other expenses that are not itemized amounting to the sum of $694.75. We find no authority in law for the allowance of funeral expenses in cases of this kind. We do, however, allow,. $41.00 for Dr. Gr. F. Schroeder; $15.00 for Dr. E. W. Marquardt; $8.00 for Helen Marquardt, Nurse; $5.00 for Vivian Johnson, Nurse; $8.00 for Dolores Fox and $43.75 for Elmhurst Hospital for medical and nursing service or the further sum of $120.75.

The total amount of such award is now past due.

This award being for the death of a State employee, is subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the method of payment thereof,” approved July 2nd, 1935.

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


author: Mr. Chief Justice Hollebich

text:
    (No. 2575
    Dorothy C. Lynch, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1936.

    Whitty & McGah, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollebich

delivered the opiniou of the court:

Prior to and on the 17th day of February, A. D. 1934, claimant was in the employ of the respondent as'-a stenographer and file clerk in the Automobile License Department of the Secretary of State, located at 120 South Ashland Boulevard, Chicago, Illinois. The office in which she was working was a room approximately 100x80 feet in dimensions with a 16-foot ceiling. There was a balcony about ten feet above the floor, on which the records were kept. The office was equipped with an electrically-driven paper-cutting machine, which was about three feet high, three feet wide, and three feet deep; an electrically-driven photostatic machine about four or five feet high, two or three feet wide, and about five feet in length; also an electrically-driven multigraphing machine.

There was an iron stairway leading from the main floor to the balcony, which stairway was about three feet wide, and was constructed at an angle of about sixty degrees.

Claimant, in the performance of her work, had certain duties to perform in connection with the aforementioned photostatic machine which was located on the balcony. On the morning of February 17th, 1934 she was carrying some photostatic prints from the balcony to the floor below. In descending the stairway, the heel of one of her shoes caught in one of the stair treads when she about seven feet above the floor, and she fell forward. The side of her body struck the guard rail at the side of said stairway, and she fell head foremost to the terraza floor. She was rendered unconscious and was bleeding from the nose and ears, and was immedi.ately taken to the University Hospital where it was found that she had sustained a basal skull fracture, concussion of the brain, a lacerated mouth, and loosening of the teeth; multiple cointusions on both legs; and a severe cut on her left hip. She remained in a semi-conscious condition for a week, and continued at the hospital until April 9th, 1934 under the care of Dr. Karl A. Meyer who continued to treat her after she left the hospital. On December 14th, 1934 she was referred by Dr. Meyer to Dr. Theodore T. Stone, a specialist in diseases of the nervous system, who treated her until April 23d, 1935, at which time he discharged her as much improved. During all of the time from the date of the accident to the date of taking testimony herein, to wit, on June 3d, 1936, she continued to remain under the care of Dr. Meyer, and is still under his care. During the interval between the time she left the hospital and June 3d, 1936, she was also treated by several other physiciáns.

On August 1st, 1934 she reported back to work, and has continued in the employ of the respondent to this date. Although she has been able to perform only a part of the duties she previously performed, she has received her wages in full during all of the time from the date of the accident to the date of the hearing herein.

Claimant filed her original complaint herein on January 14th, 1935, setting forth the facts and circumstances connected with the accident, and setting forth also that she has received her salary regularly from the Secretary of State from February 17th, 1934 to October 1st, 1934, in the amount of $800.00. The prayer for relief as set forth in the original petition is as follows:

“Claimant therefore asks for an award in the sum of $3,417.52 for medical expenses as per 6ill of particulars attached herewith.”

The Bill of Particulars sets forth numerous items of medical, surgical, nursing and hospital expenses, together with an estimate of future expenses of the same kind, but does not purport to make any claim for compensation for the injuries sustained by the claimant.

On May 12th, 1936, pursuant to leave of court theretofore had and obtained, claimant filed her amended complaint herein in which she asks for compensation for the injuries sustained by her as aforesaid. Such amended complaint sets forth that inasmuch as claimant has received her salary, no claim is made for temporary disability. She asks, however, for compensation for permanent disability, as well as for medical, surgical and hospital expenses incurred to the date of filing such amended complaint, in the amount of $2,052.62.

If the claimant has any right to an award, it is by virtue of the Workmen’s Compensation Act of this State, and the Attorney General has raised the following questions with reference to such right of recovery:

1. Were the claimant and respondent operating under the Workmen’s Compensation Act at the time of the accident in question?

2. If so, did the claimant make claim for compensation and file her application for compensation within the time required by Section 24 of the Workmen’s Compensation Act?

3. If claimant and respondent were operating under the Compensation Act, and claim for compensation was made, and application for compensation was filed within the time required by such Act, is the claimant entitled at this time to compensation for the injuries so sustained by her ?

The questions raised by the Attorney General will be considered in the order above set forth.

I.

Were the claimant and respondent operating under the provisions of the Workmen’s Compensation Act at the time of the accident in questionf

The answer to this question depends upon whether the respondent at the time of the accident was engaged in an extra-hazardous business or enterprise within the meaning of those words as used in Section Three of the Compensation Act. Section Three of such Act states that the provisions of the Act shall apply automatically “to all employers and all their employees engaged in any department of the following enterprises or businesses which are declared to be extra-hazardous, namely:” * * *

“7%. Any enterprise in which sharp-edged cutting tools, grinders implements are used”, etc. * * *

“8. Any enterprise in which statutory or municipal ordinance regulations are now or shall hereafter be imposed for the regulating, guarding, use or the placing of machinery or appliances or for the protection and safeguarding of the employees or the public therein * * * each of which occupations, enterprises or businesses are hereby declared to be extra-hazardous”, etc.

It appears from the record that the office of the respondent in which claimant was working at the time of the accident was equipped with an electrically-driven paper-cutting machine; an electrically-driven photostatic machine; and an electrically-driven multigraphing machine; that such machines were subject to municipal ordinance regulation, to wit, the provisions of the Electrical Code of the City of Chicago with reference to the installation, .alteration, use and inspection of electrical equipment; and were also subject to statutory regulation, to wit, the provisions of the Health, Safety and Comfort Act of this State (Hurd’s Revised Statutes, 1933, Ch. 48, Par. 103, Sec. 1). The record also shows - that the paper-cutting machine is equipped with a knife or blade thirty inches in length.

In the case of Hahnemann Hospital vs. Ind. Com., 282 Ill. 316, it was held that the respondent was engaged in an extra-hazardous business or enterprise on account of the fact that the building in which the hospital was conducted was subject to municipal ordinance regulation with reference to the inspection of the building, and the boilers and electric wiring therein.

In the case of Board of Education vs. Ind. Com., 298 Ill. 61, it was held that a school district was engaged in an extra-hazardous enterprise on account of the fact that the school building (a two-story structure) was heated by a steam boiler, which was subject to municipal ordinance regulation. In that case the employee was a janitor who was injured while washing windows.

In the case of Board of Education vs. Ind. Com., 301 Ill. 611, it was held that a high school district which was conducting a manual training department was engaged in an extra-hazardous business or enterprise on account of the fact that some of the machinery in the manual training school was subject to statutory regulation for the protection of the public, to wit, the provisions of the aforementioned Health, Safety and Comfort Act.

In the case of Ascher Bros. vs. Ind. Com., 311 Ill. 258, it was held that a moving picture theatre was an extra-hazardous business or enterprise on account of the fact that the projecting machine in use at the theatre was subject to municipal ordinance regulation for the protection of employees and the public. In that case the employee was an usher who was injured by striking his leg against a seat.

In the case of Forest Preserve District vs. Ind. Com., 357 Ill. 389, it was held that the Forest Preserve District was engaged in an extra-hazardous business or enterprise because, in the work of maintaining such district, picks, shovels, axes, and other sharp-edged tools were used in connection with the work.

The record herein clearly shows that the enterprise in which the claimant was engaged at 120 South Ashland Boulevard as aforesaid was an enterprise in which statutory or municipal ordinance regulations are imposed for the protection and safeguarding of employees or the public therein, and in which sharp-edged cutting tools or implements are used.

It appears, therefore, that the enterprise in which claimant was employed at the time of the accident in question was an extra-hazardous enterprise within the meaning of those words as used in Section Three of the Act.

Such enterprise in question being extra-hazardous, every employee of the respondent engaged therein, regardless of the nature of the duties of such employee, is brought within the terms of the Act. Ascher Bros. vs. Ind. Com., 311 Ill. 258; Illinois Publishing and Printing Co. vs. Ind. Com., 299 Ill. 189; Porter vs. Ind. Com., 301 Ill. 76; Stevens vs. Ind. Com., 346 Ill. 495; Forest Preserve District vs. Ind. Com., 346 Ill. 389.

Anger stein, in his work “The Employer and the Workmen’s Compensation Act”, in referring to this question, says (p. 36):

“There is no doubt that the rule has been established in this State by the Supreme Court’s decision that where the employer’s business or enterprise is under the Compensation Act, then all employees of such employer in any department of such business or enterprise are under the Act.”

We therefore conclude that the claimant and respondent at the time of the accident were operating under and bound by the provisions of the Workmen’s Compensation Act.

II.

Did the claimant make claim for compensation cmd file her application for compensation within the time required by Section twenty-four of the Workmen’s Compensation Actf

Section 24 of the Workmen’s Compensation Act provides that “no proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident; provided that, in any case, unless application for compensation is filed with the Industrial Commission within one year after the date of the injury or within one year after the date of the last payment of compensation, the right to file such application shall be barred.”

There is no question but what notice of the accident was given as required by said Section 24. There is some testimony in the record with reference to claim for compensation having been made, but no application for compensation was filed within one year as required by said Section 24. The only application filed by the claimant within the time required by the Act was the original application herein, which was filed on January 14th, 1935. Such application by the terms thereof, specifically asks for an award “in the sum of $3,417.52 for medical expenses as per Bill of Particulars attached herewith.” The Bill of Particulars contains an itemized statement showing different items of charges for medical, surgical, nursing and hospital services, but makes no claim whatsoever for compensation for the injuries sustained.

On May 12th, 1936 claimant filed her amended complaint herein in which she makes claim for compensation as well as for medical, surgical and hospital expenses. The only application for compensation which was filed by the claimant, therefore, was filed on May 12th, 1936, which was over two years after the date of the injury. There is nothing in the record to show that any compensation was paid to the claimant and consequently there is nothing to show compliance with Section 24 of the Act. The original complaint herein sets forth that claimant had been paid her salary in full by the Secretary of State from the date of the accident to October 1st, 1934, and apparently that was the reason no claim for compensation was then made. Our Supreme Court has held in numerous cases that compliance with the aforementioned requirements of Section 24 of the Workmen’s Compensation Act is jurisdictional. Haiselden vs. Ind. Com., 275 Ill. 114; Bushnell vs. Ind. Com., 276 Ill. 262; Inland Rubber Co. vs. Ind. Com., 309 Ill. 43; Chicago Board of Underwriters vs. Ind. Com., 322 Ill. 511; Duquoin School District vs. Ind. Com., 329 Ill. 543; City of Rochelle vs. Ind. Com., 332 Ill. 386.

The filing of the original complaint herein was not in compliance with the requirements of Section 24, for the reason that such complaint was for medical, surgical, nursing and hospital services only, and did not ask for compensation for the injuries sustained by the claimant. Section 8 of the Compensation Act provides that the furnishing of medical, surgical and hospital services by the employer shall not be construed as the payment of compensation. If the furnishing of such services cannot be considered as compensation, surely claim for payment for such services cannot be considered as a claim for compensation.

Application for compensation not having been filed within the time required by Section 24 of the Act, we have no jurisdiction to allow an award therefor.

However, we have heretofore held that inasmuch as Section 8 of the Act provides that the furnishing by the employer of medical, surgical or hospital services shall not be construed as the payment of compensation, the requirements of Section 24 do not apply to cases within the Act which have reference only to claims for medical, surgical or hospital services as distinguished from claims for compensation for injuries. Lester Wolfe vs. State, 8 C. C. R. 333; I. L. Elmendorf vs. State, 8 C. C. R. 548; Dick Taden vs. State, No. 2843, decided at the June, 1936, term of this court.

Under Section 8 of the Compensation Act, the employer is required to provide the necessary first aid, medical and surgical services and all necessary medical, surgical and hospital services thereafter, limited however, to that which is reasonably required to cure or relieve from the effects of the injury.

The respondent having failed to furnish the necessary first aid, medical, surgical and hospital services, the claimant was authorized to procure the same, and the reasonable cost and expense thereof is a legitimate charge against the respondent.

It appears from the record that the claimant was very seriously injured and that she has incurred medical, surgical and hospital bills to a large amount in being cured of the effects of the injury, and that she is still under the care of Dr. Meyer therefor. The record shows that the expenses incurred by the claimant in this behalf, to the date of the hearing herein, to wit, June 3d, 1936, are as follows:

Miss Gertrude Kidder, professional nurse, 51 days............... $408.00
Miss Johnson, professional nurse, 2 nights...................... 12.00
University Hospital:
Hospital room fee, February 17 to April 9, 1934..... $357.00
Nurses’ board from February 17 to April............ 104.00
Skull and pelvis examination on February 17, 1934... 25.00
Laboratory fees.................................... 6.00
Prescriptions ....................................... 6.97
Telephones ........................................ 2.20
- 501.17
Dow Optical Company, one pair glasses.......................... 17.35
Dr. L. C. Hoffman, professional services......................... 10.00
Dr, Ambrose C. Brown, D.D.S., professional services............. 250.00
Dr. W. T. Carlisle, professional services......................... 9.00
Dr. Scupham, professional services.............................. 10.00
Dr. Karl Meyers, professional services............. 531.00
Dr. Francis. Gerty, professional services......................... 25.00
Dr. Theodore T. Stone, professional services..................... 150.00
W. E. Barnes & Sons, Druggists; medicine etc.................... 12.10
Dr. Nathaniel H. Adams, professional services.................... 5.00
Dr. James P. Fitzgerald, professional services.................... 10.00
Total ...................................................... $1,950.62

There is nothing in the record which indicates that any of snch bills are unreasonable.

In view of the conclusion we have reached, it is unnecessary to discuss the third point raised by the Attorney General.

An award is therefore entered in favor of the claimant for the use of the persons hereinafter set forth, and in the following amounts, to wit:

Dorothy C. Lynch, for use of Gertrude Kidder................... $ 408.00
Dorothy C. Lynch, for use of Miss Johnson..................... 12.00
Dorothy C. Lynch, for use of University Hospital............... 501.17
Dorothy C. Lynch, for use of Dow Optical Company............ 17.35
Dorothy C. Lynch, for use of Dr. L. C. Hoffman................. 10.00
Dorothy C. Lynch, for use of Dr. Ambrose C. Brown............ 250.00
Dorothy C. Lynch, for use of Dr. W. T. Carlisle................. 9.00
Dorothy C. Lynch, for use of Dr. Scupham...................... 10.00
Dorothy C. Lynch, for use of Dr. Karl Meyer................... 531.00
Dorothy C. Lynch, for use of Dr. Francis Gerty................. 25.00
Dorothy C. Lynch, for use of Dr. Theodore T. Stone............ 150.00
Dorothy C. Lynch, for use of W. E. Barnes and Sons............ 12.10
Dorothy C. Lynch, for use of Dr. Nathaniel H. Adams........... 5.00
Dorothy C. Lynch, for use of Dr. James P. Fitzgerald........... 10.00

The evidence shows that claimant’s condition is gradually improving, and that she is still under the care of Dr. Meyer. It is therefore ordered that the court retain jurisdiction of this case and that the same be continued generally for the purpose of making such other or further orders herein with reference to such future medical, surgical or hospital services, if any, as may be reasonably required to cure or relieve from the effects of the injury; — in accordance with the provisions of the Workmen’s Compensation Act of this State.


text:
    (No. 2847
    Material Service Corporation, a Corporation, claimant, vs. State of Illinois, respondent.

      Opinion filed September 10, 1936.

    D’Ancona, Pflaum & Kohnsaat, for claimant.

      Otto Keener, Attorney General; John Kasserman, . Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant seeks an award for One Hundred Thirty Eight and 34/100 ($138.34) Dollars for a balance due on orders for sand, stone and cement, bought by respondent through the Division of Highways. The account consists of three items, the first being for a balance of Twenty Six and 52/100 ($26.52) Dollars arising out of a conflict in two purchase orders dated May 10, 1929. As plaintiff’s claim was not filed in the Court of Claims until February 20, 1936 and a period of five years has elapsed since the claim first accrued, no award can be made therefor as the Act creating the Court of Claims provides,

“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.”
Sec. 10, Act creating Court of Claims, etc., approved June 25, 1917.

It further appears that on July 22, 1933 and on July 25, 1933 claimant sold and delivered to respondent at the Illinois State Penitentiary at Joliet 41.37 yards of sand at an agreed price of Forty Seven and 25/100 ($47.25) Dollars, being invoice No. 71533. Payment therefor has not been made, but credit memoranda of Fourteen and 61/100 ($14.61) Dollars are admittedly due leaving a balance due claimant in the sum of Thirty Two and 64/100 ($32.64) Dollars.

On May 31,1935 a further order for sand was placed with claimant at an agreed price of Sixty Four and 57/100 ($64.57) Dollars.

A letter dated April 30,1936 from the Warden to Director Bowen states that the State records show receipt of the material in question. It further appears that said bills were not paid because they were not cleared before the appropriation out of which they might have been paid had lapsed.

Where the State has received material or supplies delivered on valid orders therefor and payment has not beem made because of the lapse of the appropriation out of which payment could have been made, an award for the amount due will be made. (Rock Island Sand & Gravel vs. State, 8 C. C. R. 165.)

An Award is Therefore Made in favor of claimant in the sum of Ninety Seven and 21/100 ($97.21) Dollars, in full discharge of its claim.


text:
    (No. 2474
    Jennie Meyer and Laura Meyer Moore, by Jennie Meyer, Her Next Friend, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1936.

      Subsequent order filed April 13, 1937.

    Trapp & Trapp, for claimants.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

On February 15, 1934 Oran H. Meyer was employed by respondent as a maintenance patrolman, Division of Highways, Department of Public Works and Buildings, and on the day in question was dragging the shoulders on S. B. I. Boute No. 121 several miles south of Hartsburg, Illinois. He was driving a State-owned truck which he kept at his home and which was assigned to him for such duties as might require his attention. As Mr. Meyer was driving the truck across the right-of-way of the Illinois Central Bailroad Company about 4:30 p. m., on the day in question, he was struck by a freight train and received injuries, as a result of which he instantly died. He left surviving him, Jennie Meyer, his widow, and Laura Meyer, his daughter, who was then fifteen years of age and residing at home with her parents. The record discloses that the daughter, Laura Meyer, was thereafter married on the 19th day of May, A. D. 1934. Claim was filed on August 1, 1934 by the surviving widow and the said daughter for an award under the terms of the Workmen’s Compensation Act, for the sum of Four Thousand Four Hundred Fifty ($4,450.00) Dollars. A further application was filed on May 4, 1936 that any allowance herein made be made payable as a lump sum award.

There seems no dispute of fact or law involved. The deceased employee entered the employ of the State August 23, 1933 and his death occurred in an accident which arose out of and in the course of his employment. An unsuccessful suit was brought against the Illinois Central Railroad Company in connection with said accident. His wages are shown to have been One Hundred ($100.00) Dollars per month or One Thousand Two Hundred ($1,200.00) Dollars per year. A certified birth certificate discloses that the daughter, Laura Meyer, was born February 22, 1919 and was therefore fifteen years of age at the time of her father’s death. She was thereafter married as above indicated on the 19th day of May, 1934.

Under the provisions of Sec. 7 of the Workmen’s Compensation Act, Chap. 48, Rev. Statutes of the State of Ill., 1933, claimant, Jennie Meyer, is entitled to receive from respondent as compensation for her husband’s death, the sum of Four Thousand ($4,000.00) Dollars.

This amount is increased to Four Thousand Four Hundred Fifty ($4,450.00) Dollars by reason of the daughter, Laura Meyer, being under the age of sixteen (16) years at the time of her father’s death.

Section 7, Par. (a) of the Workmen’s Compensation Act further provides,

“That when an award has been made under this paragraph, where the deceased left at the time of his death a widow and one child under sixteen years of age, the compensation payments and death benefits to the extent the same were increased because of the existence of said child, insofar as same have not been paid, shall cease and become extinguished when said child arrives at the age of eighteen years, if said child is physically and mentally competent at that time."

The salary of deceased being One Hundred ($100.00) Dollars per month, his weekly salary would figure Twenty Three and 07/100 ($23.07) Dollars per week, of which claimants are entitled to fifty-five (55) per cent until such time as Laura Meyer Moore becomes eighteen (18) years of age, when the payments should be reduced to fifty (50) percent as provided by statute, and such part of the Four Hundred Fifty ($450.00) Dollars as then remains unpaid should be withheld.

It is Therefore Ordered that an award of Four Thousand Four Hundred Fifty ($4,450.00) Dollars is hereby entered and recommended, Four Thousand ($4,000.00) Dollars of which is in favor of Jennie Meyer and Four Hundred Fifty ($450.00) Dollars is in favor of Laura Meyer Moore, payment of said award to be made in the following manner to wit:

Fifty (50) per cent of the weekly wage would be Eleven and 53/100 ($11.53) Dollars. Five (5) per cent of such weekly wage would be One and 16/100 ($1.16) Dollars. By July 25, 1936 payment for one hundred twenty seven (127) weeks will have accrued. Immediate payment therefore in favor of Jennie Meyer is hereby authorized in the sum of One Thousand Four Hundred Sixty Four and 31/100 ($1,464.31) Dollars, and monthly payments thereafter on the basis of Eleven and 53/100 ($11.53) Dollars per week until the remaining sum of Two Thousand Five Hundred Thirty Five and 69/100 ($2,535.69) has been paid; that there shall also be paid to Laura Meyer Moore at the present time the sum of One Hundred Forty Seven and 32/100 ($147.32) for the amount due her up to July 25, 1936, and monthly payments thereafter on the basis of One and 16/100 ($1.16) Dollars per week until .the further sum of Three Hundred Two and 68/100 ($302.68) Dollars has been paid to her, subject, however, to the further provision that said payment to Laura Meyer Moore shall cease on February 22, 1937, subject to the provisions of Sec. 7, Par. (a) of the Workmen’s Compensation Act of Illinois; said Laura Meyer Moore at which time arrives at the age of eighteen (18) years. Jurisdiction of this cause is retained until that time by reason of the statute in such case made and provided.

Due consideration has been given to the application filed herein, asking that a commutation of the award be made to an equivalent lump sum. The court deems the award as herein made to be to the best interests of claimant and respondent and in keeping with the spirit of the Workmen’s Compensation Act, and the application for a lump sum award is hereby denied. This award being subject to the provisions of an Act entitled “An Act making an appropriation to pay compensation claims of State employees cmd providing for the method of payment thereof,” approved July 2, 1935 (Sess. Laws 1935, p. 49) and being, by the terms of such Act, subject to the approval of the Governor is hereby, if and when, such approval is given, made payable from the Road Fund in the manner provided for in such Act.

Order.

This cause again coming on to be heard upon notice to show cause, under date of February 9, 1937, why payments of $1.16 per week should not be discontinued after February 22, 1937, and no cause now appearing, it is hereby ordered that payments heretofore authorized in the sum of $1.16 per week to Laura Meyer Moore are hereby ordered discontinued as of February 22, 1937, in accordance with the terms of the original award herein made.


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    (No. 2921
    Norman B. Pitcairn and Frank C. Nicodemus, Jr., Receivers of Wabash Railway Company, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1936.

    N. S. Brown and L. H. Strasser, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

During the year 1934 the Division of Highways of the respondent entered upon a project for the widening of S. B. I. Route 16 (Union Street) in the City of Litchfield, in Montgomery County, at the point of intersection of said S. B. I. Route 16 with the right-of-way of the Wabash Railway Company. Such project contemplated the widening of such highway from twenty-four feet to thirty-six feet.

In carrying out the details of said project and to make it effective, it became and was necessary to change the location of certain electric signals then being maintained and operated by claimants at said grade crossing. At the request of said Division of Highways, the claimants agreed to furnish the necessary materials and labor and to make the necessary changes in the location of said signals but at the sole cost and expense of the State of Illinois, which cost and expense the said Division of Highways oh behalf of the respondent agreed to assume and pay. The work in question was completed by claimants to the entire satisfaction and approval of the Division of Highways, and a bill for the actual cost of said work and materials, to wit, $341.81, was duly presented to the Division of Highways on September 25th, 1935. The Division of Highways found the bill to be correct in every particular, but the claim was not paid on account of the fact that the appropriation out of which payment should have been made had lapsed prior to the time the bill was presented.

It is admitted by the Division of Highways that the materials were furnished and services rendered by the claimants, in accordance with the aforementioned agreement, and no objection is made to the prices charged therefor.

The claim was presented within a reasonable time, and no reason is suggested why the claim should not be paid.

Where services have been rendered or supplies furnished to the State, and payment therefor has been refused solely on account of the lapse of the appropriation out of which payment should have been made, and where the amount of the claim is not questioned, an award will be made for the amount due for such services and supplies. Journal Printing Co. vs. State, 8 C. C. R. 673; Schreiber Lumber Co. vs. State, 8 C. C. R. 381; Rock Island Sand and Gravel Co. vs. State, 8 C. C. R. 165.

Award is therefore entered in favor of the claimant for the amount of its claim, to wit, Three Hundred Forty-One Dollars and Eighty-One Cents ($341.81.)

This award being for materials and labor furnished for the improvement of a State Bond Issue Route, payment should be made from the Road Fund.


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    (No. 2900
    David Recher and Ernest Recher, Doing Business as D. Recher & Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1936.

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

delivered the opinion of the court:

The complaint herein alleges that claimants are engaged in the bottling of bulk wines for resale, and in the operation of such business, purchase wines in bulk from licensees in Illinois and other states and then bottle the same for resale to licensed retailers or distributors in Illinois and elsewhere.

Under the provisions of the Illinois statute existing at the time license was issued to claimants an importing distributor’s license fee was Two Hundred Fifty ($250.00) Dollars. The license fee under the statute at that time for the manufacture of wine and beer was Five Hundred ($500.00) Dollars. (Par. 25, Sec. 4, Art. 5, Chap. 43, Ill. Rev. Statutes.)

Under the ruling made at the date in question by the Illinois Liquor Control Commission, claimants were compelled to pay Five Hundred ($500.00) Dollars for a license. The status and nature of claimants’ business was a question of fact. The statute in regard to the amount of license required was explicit. The fact that the Illinois Liquor Control Commission temporarily announced a ruling in conflict therewith did not supercede the statute. This case is similar to the case of C. Lombardo, et al, vs. State, C. of C. No. 2774 and cases consolidated therewith, in which an award has heretofore been entered.

It appearing from the record that the claimants herein are entitled to a refund of the excess fee complained of, an award is hereby made in favor of claimants in the sum of Two Hundred Fifty ($250.00) Dollars.


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    (No. 2424
    Southern Kraft Corporation, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1936.

    Paul O’Donnell, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim was filed for the sum of Three Hundred Dollars ($300.00.) The claimant alleges that on April 8, 1933, it filed in the Circuit Court of Sangamon County, Illinois, a suit against Edward J. Hughes, Secretary of State for the State of Illinois, alleging that the claimant had been assessed by the defendant, Secretary of State, the sum of $266.67 as franchise taxes for one and one-third years covering the period from March 18, 1933 to July 1, 1934; that the law under which said assessment was made was unconstitutional and void, and that the claimant did not owe any tax for that period. It also alleged that it had paid to said defendant the sum of $266.67 under protest pending the determination of the constitutional question involved.

The Circuit Court of Sangamon County, Illinois, entered a restraining order in accordance with the prayer of the bill, commanding the defendant, the Secretary of State, to hold said money until the further order of court, and to refrain from paying the same over to the Treasurer of the State of Illinois.

On April 9,1933, a certified copy of said order was served upon the Secretary of State, but through mistake and error, the copy of order was misplaced or misfiled, and did not receive the attention of the proper employees, and the said sum of $266.67 was- wrongfully and contrary to the order of the court paid over to the Treasurer of the State of Illinois, and claimant requests that an award he entered in its favor in the sum of $266.67 principal, and $16.00 interest from May 1, 1934 to May 1, 1935, at the rate of 6 per cent per annum, and the sum of $12.00, being the court costs taxed against the defendant in the case which claimant filed in the Circuit Court of Sangamon County, Illinois, or a total of $294.67.

In the case of Stratton, etc. vs. St. Louis Southwestern Railway Co., 353 Ill. 273, and Stratton, etc. vs. United States Pipe & Foundry Co., 353 Ill. 516, it was held by the Supreme Court of this State that that part of the law imposing said tax upon which this claim was filed, was unconstitutional and void.

In the case of People vs. Pierce, 6 Ill. 553, it was held that the State never pays costs except where particularly required to do so by statute.

It appears from the record that the franchise tax in question, in the sum of $266.67 was paid by claimant under protest. It had been decided by the Circuit Court of Sangamon County, Illinois, that the Secretary of State should be enjoined from collecting the tax in question. Through inadvertence the sum was paid to the State Treasurer. Clearly, the claimant is entitled to a refund of this -money actually paid over in the sum of $266.67.

There is, however, no statute which permits the payment of costs and interest. It is the law of this State that creditors may be allowed to receive interest at the rate of five (5) per cent per annum on all moneys after they become due or where money has been withheld by an unreasonable and vexatious delay of payment. After money has been turned over to the State Treasurer, it cannot be withdrawn from the State Treasury unless a proper appropriation be made by the State Legislature. Under the statutes, the Legislature will not make appropriations for claims against the State unless an award has been made by the State Court of Claims. There being no authority for us to award court costs and interest, that part of the claim will be denied and we recommend that the Legislature make an appropriation in favor of the Southern Kraft Corporation, in the sum of $266.67.