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    Joseph F. Schwab, Administrator of Minnie Schwab Deceased v. State of Illinois.

      Opinion filed March 3, 1919.

    Governmental Function — non-liability of State. The State in conducting and managing its Charitable Institutions is exercising a governmental function and is not liable for the negligence of its agents, servants or employees. _

      Inmate — cannot recover for injuries received. An inmate of a Charitable Institution of the State cannot recover for personal injury sustained through the negligence or tort of the officers, servants, agents or employees of the institution. (Henke v. State, 2 C. C. II, followed.)
    Edward J. Brundage, Attorney General, for State.
   This suit is brought against the State for five thousand dollars ($5,000.00) damages for the death of Minnie Sclrwab.

It appears that said Minnie Schwab was committed to the Illinois State Hospital for the Insane at Kankakee, Illinois, in April, 1915, for treatment for temporary insanity, and that while in said hospital under the care of the State of Illinois, on July 28th, 1915, said Minnie Schwab was being given a hot water bath by one of-the attendants of said institution, said bath being prescribed by one of the physicians of said hospital, and that the attendant in charge of said Minnie Schwab carelessly and negligently placed the said Minnie Schwab in a bath of hot water and left her unattended for the space of about twenty minutes without any attention to the temperature of the water, and allowed the hot water to run into the tub without any attention to its temperature, and that during said time the water became so hot, and the temperature of the water was so increased that the said Minnie Schwab was scalded and burned so severely that she died on July 29th, 1915.

Plaintiff was appointed administrator of said deceased by the Probate Court of Cook County, Illinois. The State, through the Attorney General, has filed a demurrer to said declaration. Ho testimony was taken in said cause, but the Attorney General through his representative, appeared before this Court in person and admitted the facts as stated in the declaration to be true, for the purpose of making a finding of fact herein. There has also been filed in said cause the affidavit of plaintiff as administrator of said.Minnie Schwab, deceased, with the consent of the State through the Attorney General, in which it appears that said plaintiff’s intestate was forty-two (42) years of age and unmarried, at the time of the injury, and for two years preceding her commitment to the hospital, had been in poor health; that the administrator is a brother of said decedent and the only heir at law. It also appears from said affidavit that said Joseph E. Schwab, the brother, expended about fifteen hundred ($1,500.00) dollars for doctor bills, nursing, and expenses in connection with the illness of said deceased, and that said deceased earned approximately seventy dollars ($70.00) per month when she was employed.

In the opinion of the Court, there is no liability on the part of the State in this case, as under the decisions of this Court, "the State is not responsible or liable for the torts or negligence of its officers, agents or servants, and the doctrine of respondeat superior does not apply to the State,” Henke v. State of Illinois, 2nd Court of Claims [Reports, page 11. The claim is therefore rejected.

At the request of the Governor, we make the following finding of law and facts in this case:

First — That the State of Illinois, in conducting the Illinois State Hospital for the Insane at Kankakee, Illinois, is exercising a governmental function and is therefore not liable for injuries to any of the inmates, as the doctrine of respondeat superior does not apply to the State.

Second — We find that if the State waived its sovereignty and submitted to the same rule of law which apply to a private hospital, in caring for and treating patients for pay, that under the facts in this case, the State Avould be liable for damages for the death of said deceased.

Third — From the statements in the declaration and affidavit accepted in this case in lieu of evidence, we believe that said deceased, being- of the age of 42 years, would have recovered from her temporary condition of insanity and would have had considerable earning capacity; that she was unmarried and had no one directly dependent upon her. We believe that the negligence of the attendants in said hospital was so gross and this patient was so carelessly mistreated that it would be. only proper for the Legislature, if it saw fit, to allow the estate of said deceased, not to exceed the sum of twenty-five hundred dollars ($2,500.00) in this case.


source: Caselaw Access Project

license: Public Domain

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    Henry Henke v. State of Illinois.

      Opinion filed March 3, 1919.

    Governmental Function — Henke v. State, 2 G. O. II., followed. This case is identical with that of Henke v. State, 2 Court of Claims at page 11, and the decision of the Court in that case is followed in this case.
    Edward J. Brundage, Attorney General, for State.
   Hade at the request of Governor Lowden.

This claim is for personal injuries received by Henry Henke, as a result of the breaking of a scaffold while claimant ivas employed as a painter at Lincoln Park, Chicago, Illinois. The claimant ivas employed by the Lincoln Park Board as a painter and had been Avorking as a painter for said Park Board for sometime previous to the accident complained of, Aidnch occurred on the 29th day of September, A. D. 19UA

The CA'idence sIioavs that on the day of the injury the claimant Avas Avorking on a scaffold, painting the ribs of a large palm house in Lincoln Park, Chicago; that the scaffold upon Avhieh he Avorked had been erected by carpenters Avho were likeAvise employed by the Park Board; that the plaintiff had nothing AAdiatever to do Aidth erection of the scaffold; that about noon, Avhile the claimant Avas performing his duties he stepped upon a plank placed in the scaffold, Aidiich suddenly broke about the middle, and precipitated him to the ground; that the plank Aldrich broke under him Avas found after the accident, to have had a knot or cross-grain running through it at the place where the break occurred; that it Avas defective and unfit to be used in the scaffold; that the plank Avas painted a grey color so that the defect could not be seen by the claimant by the use of ordinary care and diligence.

As a result of the accident the claimant was severally injured in both legs. He Avas taken to the German American Hospital, put in a plasterparis cast Avhieh remained on him for a period of six months. After the removal of the cast he Avas able to get about a little on crutches for a period of about three months, but Avas unable to do any Avorlc for at least a period of three years after the injury. The arches of the claimant’s feet Avere permanently destroyed, in addition to temporary injuries of a very painful character. We find, that as a result of such 'injury the claimant, at the present time, is afflicted Avith a condition knoAvn as “fiat-foot” in both feet, and probably is unfit to AA'ork at his trade as a painter. At the time he testified in this case he seems to have been Avorking for the Lincoln Park authorities as a gardener, receiving the sum of two dollars and twenty-five cents a day as wages. During the time he worked for the Lincoln Park authorities, prior to his injury, as a painter, lie was getting three dollars and twnety cents per day for his services. We find that he expended for hospital expenses, physicians’ services and medicines, endeavoring to be cured of his injury, at least two hundred dollars. We also find that the nature of his injuries was very painful and that he suffered a great deal for a period of one year after the injury.

He filed suit in the Court of Claims in 1906. An opinion was rendered by the Court on September 28th, 1906, holding that the State was not liable for such injury. The case is reported in Volume 2, page 11, Court of Claims Deport of Illinois. At the last session of the Legislature, the General Assembly passed an Act appropriating the sum of fifteen hundred dollars for the relief of the claimant in this ease, which appropriation was vetoed by Governor Lowclen.

Prom the foregoing facts we make the following findings:

First — That the Lincoln Park authorities are acting in a governmental capacity, as a branch of the State, and that the State is not liable for the negligent acts of the Park Commissioners, or any of the employees under them.

Second — We find that if the State’ of Illinois waived its souvereignty and submitted to the same liability in this case that a private individual or corporation would bear, then and in that case the State would be liable to the claimant for his injury. In other words, if at the time he was injured, he had been working for a private individual or corporation and was injured in like manner as shown in this case, his employer would be liable to him for damages, for failure to furnish him a safe and secure place in which to work.

Third — We find that if, at the time the claimant was injured, employees of the State enjoyed the protection of the Employers’ Liability Act, the same as employees of private persons or corporations, and that the State of Illinois had elected to come under said Employers’ Liability Act, then and in that event the claimant in this case would have been entitled to compensation under such Employers’ Liability Act.

Fourth — We believe it would be only an act of justice and right for the State Legislature to appropriate in this case, not to exceed two thousand dollars as relief and compensation for all injuries sustained by the claimant while working at Lincoln Park, in the service of the-State of Illinois.


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    Oscar Watkins v. State of Illinois.

      Opinion filed March 3, 1919.

    Respondeat Superior — doctrine not applicable to the State. "The doctrine of respondeat superior is not applicable to the State, and the State is not liable for injuries sustained by its employees while in the discharge of their duty.
    Governmental Function — University of Illinois. The University of Illinois is a branch of the State Government, exercising governmental functions and no liability attaches to the State on account of the negligence of the authorities of the University, its agents or employees.
    Edward J. Brundage, Attorney General, for State.
   Made at the request of Governor Lowden.

We find from the evidence in this case, that Oscar Watkins, the plaintiff was employed as a member of the faculty of the University of Illinois, continuously, from 1906 until 1916. He was a chemist by profession and was employed by the Department of Horticulture. His work consisted of teaching and also conducting experiments in orchards and other field work, of examining, reporting on and advising concerning the methods of spraying used in private orchards throughout the State. In this occupation it became necessarj1' for him to use mixtures containing various poisonous substances, including arsenic, lead, parisgreen, bordeaux mixtures, etc. In his line of duty and experimental work Mr. Watkins applied these sprays personally, sometimes with a hand sprayer and sometimes with a power sprayer. He handled the rod from which the sprays were delivered to the trees and vegetables, this, sometimes in the form of dry powders and sometimes in liquid form, and in his work, altogether carefully done, he frequently became covered with these sprays, liquid or dry, and from these he absorbed poisons which destroyed his health and compelled him to give up his position, since which time he has been in such a condition of health that his earning power is destroyed and he is unable to work at his profession or in any other way. He has employed and consulted many eminent physicians in his attempt to be cured of his ailment, and from the evidence in the case we are satisfied that he is suffering from lead poisoning and that his ailment is incurable. He is not only incapacitated from work but requires constant care 'from others.

During the time he was employed by the University he drew a salary of twenty-four hundred dollars per year. He has a wife and two children, a boy six years of age and a girl four years of age. Mr. Watkins and his family were entirely dependent upon his earnings and now have no means of support whatever. He has expended practically all of his savings for physicians’ services and living expenses of his family since he was stricken with illness.

It appears from the evidence that he was a highly trained expert in his line of work and that while performing liis? duty and while employed by the State Universitj^ of Illinois, he became the victim of lead poisoning as a direct result of the use of such poisons in his occupation, which has totally destroyed his earning capacity.

From these facts vre find as follows:

First — That the University of Illinois is a branch of the State Government, exercising governmental functions ’ and no liability could attach to the State on account of any 'negligence of the authorities of the University, its agents or employees.

Second — We find that Mr. Watkins, the claimant, lost his health and his earning capacity through injuries received ■ during and by virtue of his occupation as an employee of the University aforesaid; and that if employees of the University were protected by the Employers’ Liability Act, he wrould be entitled to compensation thereunder for total disability.

Third — We find that the authorities of the University committed no act of negligence which resulted in the illness or injury of the plaintiff.

Fourth — We believe that an appropriation of seven thousand five hundred dollars in this case for the relief of Mr. Watkins would lujust and proper, notwithstanding the fact that wre feel the State is under no legal obligation to make a payment for damages.


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    Harry W. Allen and Emma M. Allen, as Executors Under the Last Will and Testament of John W. Allen, Deceased v. State of Illinois.

      Opinion filed May 29, 1919.

    Inheritance Tax — when entitled to a refund. Where an inheritance tax is assessed against an estate by the County Judge, and paid, without deducting from the gross estate the Federal Estate Tax therefrom, and upon appeal the County Court enters an order deducting the Federal Tax from the assessment and re-assesses the tax against the estate; Held, the claimant is entitled to a refund of the difference between the tax paid under the original order and the amount found to be due by the County Court.
    Mistake of Fact — recovery of moneys paid under mistake. Moneys voluntarily paid under a mistake of fact can be recovered.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for refund of inheritance taxes claim to have been paid erroneously into the State Treasury by Harry A. Allen and Emma 31. Allen, as executors under the last will and testament of John IV. Allen, deceased.

The facts are briefly as follows:

John IV. Allen died testate, a resident of Cook County, Illinois, on or about the 13th day of January, A. D. 1918. Thereafter his will" was duly admitted to probate in the Probate Court of Cook County, and the claimants duly appointed executors.

Thereafter the County Judge of said county entereed an order assessing an inheritance tax in said estate of $9,235.97,' from which order the executors appealed to the County Court of said county on the* ground that the amount of the so-callecl Federal Estate Tax to which this estate was liable had not been dedueated from the gross estate in order to determine the net estate for the purpose of the said State inheritance tax. On the trial in the County Court an order was entered which assessed a total tax in this estate of $8,648.47.

The taxes assessed by the County Judge, less (5) five per cent discount for payment within six months from decedent’s death, were, on the 13th day of July, 1918) paid by the said executors to the County Treasurer of Cook County, a net payment of $8,774.17. The proper amount payable under the final order of the Cbunty Court was $8,-648.47, less five per cent discount, or $8,216.05. The executors therefore paid $558.12 in excess of the amount finally determined to be due in this estate, and the Attorney General has filed herein his consent that an award for that amount be made.

IVe, therefore, award the claimants herein the sum of five hundred fifty-eight dollars and twelve cents ($558.12).


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    David R. Forgan et al, Receivers of Central Union Telephone Co., a Corporation v. State of Illinois.

      Opinion filed September 20, 1920.

      Contract — telephone service. Where claimant furnishes telephone services to the State under a contract with the State for such service he is entitled to recover for the service rendered.
    Edward J. Brundage, Attorney General, for State.
   This suit is brought by claimants to recover for services rendered by Central Union Company, a Corporation, as disclosed in the statement of facts following: The declaration alleges the appointment of

claimants, receivers, etc., and that as receivers they were engaged in transmitting local and long distance telephone messages in and obout , Springfield, Illinois, and charges were made therefore according to fixed and established schedule of rates.

That on January 8th, 1915, said receivers entered into a contract with the State of Illinois through its Secretary of State to furnish long distance telephone messages for the 49th General Assembly of the.State of Illinois, to and including the 15th day of April, 1915.

Pursuant to such agreement, said receivers rendered services in accordance with the time of the contract, which aggregated $1,952.40. To pay this, an appropriation was made by the 49th General Assembly, but inadverently, this appropriation was certified to pay tolls of members of the 49th. General Assembly and State refused to pay it. Later $401.00 of this was by individual members of that Assembly, thus redusing the amount to $1,551.40, which remains unpaid. A bill of particulars is presented in evidence showing each and all the items of charges and likewise similar services were rendered as follows:

For Public Utilities...................................$ 122.40

Secretary oí State...................................... 236.80

Illinois and Michigan Canal............................. 18.15

Later, the Secretary of State paid $77.03, reducing the last item to $158.77. It appears that there remains due and unpaid upon these various items of charges the following:

General Assembly .....................................$1,551.40

Public Utilities ....................................... 122.90

Illinois and Michigan Canal............................. 18.15

Balance from Secretary of State......................... 158.77

Total

$1,851.22

When the Secretary of State made partial payment of claims charged to his department, he stated that was all the available funds he now had on hand. A demurrer was filed to this declaration, which was not sustained; and after all proof was fully submitted; the Attorney General consents to the payment of the balance of the claim or claims.

The claim being sustained by the evidence, we are of the opinion that the claim is meritorious, and should be paid.

Since the institution of these proceedings, Charles E. Clark has been substituted attorney for Central "Union Telephone Co.; Inc., which likewise has been substituted as claimant herein. In view of the foregoing, we awarded the substituted claimant the sum of $1,851.22.


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    Home Trust and Savings Bank, a Corporation Executor, of the Last Will and Testament of Celeste C. Harding, Deceased v. State of Illinois.

      Opinion filed September 20, 1920.

    Inheritance Tax — order of County Judge binding. The order of the County Judge assessing an inheritance tax is valid and binding, unless reversed or modified by the County Court upon appeal.
    'Order of Counts' Judge — how reviewed. Section II, of Inheritance Tax Law provides the method by which an order of the County Judge may be reviewed.
    Court of Claims — cannot review order of County Judge. The Court of Claims cannot revieV the order of the County Judge.
    Edward J. Brundage, Attorney General, for State.
   The County Judge of Kane Count)7, Illinois, heretofore in the year 1917 entered an order assessing an inheritance in the estate of Celeste C. Harding, deceased, and the claimant presents a claim of refund $540.21 inheritance tax erroneously paid. And prays this Court to examine and review the proceedings of the appraiser and order of the County Judge approving same and fixing the tax. The attorney for claimant contends that the error is a mistake of the Judge in construing the will and that it is not res adjudicada-, and that it is a mistake that can be Testified by the State Treasurer under the power given in the Statute of Illinois.

The County Judge had jurisdiction of the parties and the subject matter, and as such Judge entered an order assessing the said inheritance.

Although the time has long since expired in which an appeal might have been prosecuted from such order to the County Court, none was ever prayed or taken to the County Court as required by statute in such case made and provided.

Section 11 of the inheritance tax law provides that: “Any person, including the Attorney General dissatisfied with the appraisement or assessment may appeal therefrom to the County Court of the proper county -within sixty days after the making and finding of such assessment order”, etc.

So far as this Court is concerned the tax was legally assessed and continues to be of binding and legal force till such time as an appeal is prosecuted according to said statute and the order of the County Judge reversed or modified by County Court. This Court cannot review 'the order of the County Judge.

The statute referred to provides for the manner of reviewing the order of the County Judge, 2 C. C. p. 210, 213, also 2 C. C. 208. The case is therefore dismissed.


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    Henry Felix Carver v. State of Illinois.

      Opinion filed September 20, 1920.

    Workman’s Compensation Act — when does not apply to the State. Workman’s Compensation Act of 1917 does not apply to the State in any case not falling within Section Three (3) of that Act.
    Governmental Function — Joliet Penitentiary. The State in conducting the State Penitentiary at Joliet.exercises a governmental function and is not liable for injuries received by its employees in the discharge of their duty.
    Edward J. Brundage, Attorney General, for State.
   The claimant, Henry Felix Carver, files this claim for damages for injuries claimed to have been sustained by him on January 14, 1918, while in the performance of his duties as a guard at the State penitentiary at Joliet. While in the performance of such duties, he was attacked by one of the prisoners and severely cut and slashed with a knife. The State, through the Attorney General, has filed its demurrer to the declaration filed in this case, and in the opinion of the Court, the demurrer should be sustained.

There is no liability on the part of the State in this case. The “Workmens’ Compensation Act” does not apply, as the evidence shows that the enterprise in which claimant was engaged is not included in the extra hazardous employment mentioned in section 3 of the “Workmens’ Compensation Act”, in force July 1st, 1917. Moreover, the State in conducting its institutions such as the Joliet penitentiary, is exercising governmental function and is not liable for injuries to those it employs. This has been repeatedly held in pervious decisions of this Court, such as "2lorissey v. State”, Vo. 2, Court of Claims, 267. In another case, this Court rejected the claim of the administrator of the estate of Harry Davy against the State of Illinois, holding that there was no liability on the part of the State. That was a case similar to this one. Harry Davy, a guard in the Joliet penitentiary, was killed while in the performance of his duty. The Court rejected the claim although it made a recommendation of a proper amount to allow to his widow in case the Legislature saw fit to do so.

For the above reasons,, this claim is rejected.

We make the following findings of fact in the case:

That the claimant was an employee of the State of Illinois, serving as a guard in the State penitentiary at Joliet, and that on January 34, 1918, while in the performance of his duties as such guard, about the hour of 4:30 p. m., of said day, and while in the exercise of due care and diligence for his own safety, ho was attacked by a colored prisoner who was returning to his cell from his evening meal. The line of prisoners was apparently returning in an orderly manner when August Eskridge, one of the prisoners, broke out of line while on gallery 10 of one of the cell houses of said institution, and approached claimant and without provocation on the part of claimant, attacked and assaulted him by attempting to throw him over the railing of said gallery, and with a blunt knife, slashed him from the back of the neck forward across the throat and left cheek, making a gash 6 or 7 inches in length, and also cutting him across the face, leaving a gash about 4 inches in length, and also stabbed him in the back below the shoulder blade; that there was a severe struggle between claimant and his prisoner, and finally claimant broke away and rushed down the stairway of the gallery, bleeding and injured. He was there met by one of the other guards and taken to the hospital and placed under the care of the penitentiary physician. It required about 42 stitches to close the wound and claimant was in bed for about a week and did not resume his employment for a period of about 5 weeks after the injury.

It appears from the evidence that there is a scar caused by the long gash across the face and neck of claimant, which still draws and becomes sore, and that there will be a permanent scar which will disfigure claimant. Claimant suffered considerable pain for about three months after the injury and the evidence shows that his face is drawn and becomes sore during the different changes of weather. After receiving this injury, claimant enlisted in the Marine Corps and was honorably discharged on July 26, 1919. Claimant was not required to expend any money for medical services or hospital bills, as the State furnished this service and attendance.

Under the foregoing finding of facts, we have rejected this claim the State not being liable for the reasons hereinbefore set forth. We find that if at the time the claimant was injured, employees of the State were under the protection of the “Workmens’ Compensation Act”, the same as employees of private persons or corporations, claimant would be entitled to compensation under that Act.

Under the circumstances of this case, if the Legislature sees fit to waive the legal defenses of the State, it would be an act of justice to appropriate not to exceed one thousand dollars ($1,000) as relief and compensation for all injuries sustained by claimant as claimed in his declaration.


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    Chicago Telephone Company v. State of Illinois.

      Opinion filed September 20, 1920.

      Contracts — when law will imply promise on part of State to pay. This claim is similar to that of Greely Carson v. State, 1 Ill., Court of Claims, 135, and the decision of the Court in that case, and other similar cases cited herein, governs this case.
    Edward J. Brundage, Attorney General, for State.
   This is a claim of the Chicago Telephone Company for telephone service furnished to the State of Illinois to the office of the Attorney General in the amount of eight hundred ninety-nine dollars and seventy-two cents ($899.72) for a period from December 22nd, 1913, to September 1st, 1915. ÉTo objection or defense of the claim is interposed by .or on behalf of the State and the honorable Attorney General consents to an award herein in the sum of eight hundred and ninety-nine dollars and seventy-two cents ($899.72). This Court has made awards in a number of similar cases. See Greeley Carson Co. v. The State, 1 Illinois Court of Claims, 135; Sherman v. The State,, 1 Ill. Court of Claims, 168; Barrow, Wade, Guthrie & Co. v. The State, 2 Ill. Court of Claims, 304. We therefore award the claimant the sum of eight hundred ninety-nine dollars and seventy-two cents ($899.72).


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    H. M. Good v. State of Illinois.

      Opinion filed September 20, 1920.

    Workman’s Compensaron Act — when State liable thereunder. Claimant was injured while operating a trench machine, near Lockport, 111., while in the employe of the Penitentiary Commission, and filed his claim for hospital and medical services, and compensation. Held, that the claim might well he considered as falling within Section Three (3) Par. Two (2) Workman’s Compensation Act.
    Respondeat Superior — claim may be allowed on ground of equity and social justice. While the doctrine of Respondeat Superior is not applicable to the State in the exercise of its governmental functions, yet under the circumstances of the case the court, having in mind the purpose for which it was created, and no objection being made by the State, upon principles of equity and justice, may award to the claimant a fair and just compensation. .
    Edward J. Brundage, Attorney General, for State.
   This is a claim of B. M. Good for compensation on account of injuries received in operating a trench machine while in the employ of the Penitentiary Commission and engaged in the work of building the new Illinois State penitentiary located near Lockport, Illinois. The ■ claim submited by the claimant is for hospital and medical charges and compensation for thirty weeks at the rate of 50 per cent of $31.25 per week, the total claim being two hundred sixty-four dollars and thirty-seven cents ($264.37). The measure of compensation sought is the provision of the Workmen’s Compensation Act, section 8, paragraph 3, Illinois Statute. The facts in this case are not disputed. The State has filed a demurrer and takes the position that it is not legally liable .for compensation or in damages in cases of this kind. • In the opinion of the Court the only proposition under which the claimant shows a basis of liability is under section 3 of the Workmens’ Compensation Act referred to in that the undertaking in which the State and the employee who is the claimant here were engaged at the time of the injury complained of, might well be considered to fall within the classification of section 3, paragraph 2 of the Workmens’ Compensation Act. While it is well settled that the State and the conduct of . State institutions exercises a governmental function and that there can be no recovery arising in tort at such institutions. It is not necessary however that the Court determine in'this case the question of legal liability of the State as the circumstances of this case are such that the Court with a view to the exercise of the function for which it was created and to do equity and social justice may justly and fairly award compensation to the claimant and no objections is made by the State to the entry and award of a fair and just compensation to the claimant herein. It is the opinion of the Court that the sum of two hundred sixty-four dollars and thirty-seven cents ($264.37) is a fair and just compensation and we accordingly award the sum of two hundred and sixty-four dollars and thirty-seven cents ($264.37).


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    J. J. Randall v. State of Illinois.

      Opinion filed September 20, 1920.

    Governmental Function- — Lincoln State School and Golony. The State in conducting the Lincoln State School and Colony exercises a governmental function and is not liable for injuries received by its employes in the discharge of their duty.
    _ Knowledge op Danger — claimant assumed rislt of injury. Where the claimant had knowledge of the dangerous propensities of the animal he impliedly accepted the possible danger attending his employment.
    Social Justice and Equity — compensation may be awarded. In the absence of legal liability of the State the Court upon grounds of equity and social justice may allow to a claimant compensation for injuries received.
    Edward J. Brundage, Attorney General, for State.
   This is a claim presented by J. J. Randall by reason of injuries sustained by him in the course of his employment at the Lincoln State School and Colony, an institution maintained and under the control of the State of Illinois. This claimant described his employment as being “Head Farmer” and by virtue of such employment it became and was his duty to direct the labor necessary to operate the farming enterprise connected with said institution; that on the 25th day of April, A. D. 1914, while engaged in driving a certain draft team, an animal hitched on the left side of said team was a mule, the claimant maintained that the mule was vicious and dangerous to handle, drive, work or be about; that the said mule kicked the claimant, thereby breaking and fracturing the left forearm and chipped the upper bone on said forearm thereby causing the injury and damages complained of herein. The defendant, The State of Illinois, takes the position that the State of Illinois is not liable for the reason that the doctrine of respondeat superior does not apply to the State. In the first place the State is not liable for the torts of its officers, agents and employees; also that the State in conducting its institutions, is exercising a governmental function and is not liable for injuries to those it employs; also that the State of Illinois is not responsible for the misfeasance, wrongs or omissions of duty of its officers, agents or servants for iti does not guarantee to any person the fidelity of the officers or agents ivhom it employs.

The claimant contends that he suffered great pain and inconvenience and loss of time in consequence of this injury that he ivas a diligent and faithful employee. It, however, appears to this Court that while the matter of equity and social justice should be considered, yet the Court should not be unmindful of the well established rules of law of the State together with all the facts and circumstances surrounding the particular case at issue, it must be admitted that whatever hazard that attended the employment of the claimant was well known to him and with that knowledge, he continued in such employment thereby impliedly accepting the possible danger; also that a considerable length of time elapsed before the filing of this claim in this Court, however, it is a rule of this Court even in the absence of legal liability to consider the equity and justice of a proposition. Therefore in view of the former ruling of this Court, the position taken by the honorable Attorney General, and taken into consideration all the evidences in this case, it is ordered that an award for the sum of eight hundred dollars ($800.00) be allowed to the claimant in this case.


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    Clifton F. Cramer v. State of Illinois.

      Opinion filed September 20, 1920.

    Fees and Salaries — when discharged employee entitled to salary. Where charges are filed against a State employee, whose salary is fixed by law, and upon a hearing thereon he is discharged, he is entitled to his salary until he receives official notice of his discharge.
    Edward J. Brundage, Attorney General, for State.
   The claimant, Clifton F. Cramer, alleges in his declaration that on August 2, 1915, he was appointed deputy game and fish warden for the State of Illinois, and immediately entered on the duties of his office, and that he continued in his said employment during the month of June, 1917; that the salary fixed by law for said employment was one hundred dollars ($100.00) per month, and that claimant incurred expenses in said employment amounting to thirty-three dollars and ten cents ($33.10).

That on June 29, 1917, he was discharged from- said employment and that his salary- and expenses for the month of June, 1917, have not been paid.

It appears that on May 29, 1917, charges were filed against claimant before the Civil Service Commission, but that the charges were not heard until June 14, 1917, and that claimant was not finally discharged until he received notice of the action of the Civil Service Commission on June 29, 1917. Until such time, he was in the employ of the State and entitled to receive the compensation and expenses provided for by law. The Attorney General admits that under the law and the evidence, the State is liable to the claimant in the sum of one hundred thirty-three and 10/100 dollars ($133.10) for compensation and expenses and has not taken any testimony in contradiction of that filed by claim-. ant, in this case.

The Court is therefore of the opinion that this claim should be allowed. The Court therefore awards the claimant the sum of $133.10.


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    Ella H. Davis et al, Executor of Will of George Perrin Davis, Deceased v. State of Illinois.

      Opinion filed September 20, 1920.

    Inheritance Tax — Federal Tax should be first deducted. The Federal Tax should be first deducted before the State Tax is assessed.

      Same — when claimant entitled to a refund. Where an inheritance tax has been assessed, and paid under protest, without first deducting the .Federal Tax, and afterwards upon proceedings before the County Judge, the assessment was modified, and it was found that the tax was erroneously paid, the claimant is entitled to a refund of the excess.
    . Court of Review — Court of Claims not a Court of Review. The Court of Claims is not a Court of Review, and the findings of the County Court are conclusive and binding upon this Court, unless reversed or modified.
    Edward J. Brundage, Attorney General, for State.
   The claimants in their declaration show that George Perrin Davis of McLean County died January 10, 1917, owning property at the time of his death subject to the payment of inheritance tax to the State of Illinois.

The will was duly probated and executors duly qualified. The appraisement was made and reported to the Court and approved and an order entered fixing the amount of the inheritance tax without first deducting the federal tax which was $47,163.71.

The executors having paid to the State the inheritance tax on the total amount including amount of federal taxes resulted in them paying $879.86 more than required by law.

The facts are stipulated and no other1 evidence introduced. It is shown that the Court approved the order of assessment upon the above basis over the protest of claimant.

That in order to save same interest claimant paid the entire tax under protest.

At that time the Pasfield case was pending in the Supreme Court, and awaiting the opinion in that case some correspondence took place between the claimants counsel and the Attorney General, about this tax.

This excess evidently was erroneously paid, but paid under protest.

Later the claimants filed petition with the County Judge to modify its order on the assessment, and a hearing was had thereon in which the State appeared by its attorneys and the issues were tried without questioning the Court’s right or jurisdiction to adjudicate the matter and the Court made ail order modifying its former order, to make it conform to the law.

The Court further found that the claimant had actually erroneously paid $879.85, and that same should be refunded to claimants.

Claimants also claimed interest of 5% making $925.86 but the interest was not allowed.

So appeal was taken from■ the order approving the appraisers report, but the same judge later modified its order in which proceedings, the State appeared and represented the interest of the State. Demand seems to have been made on the County Treasurer and State Treasurer with a view of proceeding to collect the amount so erroneously paid.

Without discussing the technicalities in the precedence it is evident that the claimants erroneously under protest paid $879.88’ more than they were legally required to do, and just before the opinion was announced in the case of People v. Pasfield, 288 Ill. Sup. Comp, page 450.

Whether the procedure in the County Court by judge was exactly proper or not, the State was represented at the various steps taken to determine the proper amount assessable, and the County Courts finding same to be right and equitable. This Court not being a Court of review it will hold that proceedings in the County Court are conclusive and accordingly find that claimant is entitled to a refund of eight hundred seventy-nine and 86/100 dollars and recommends the payment of same by the State.


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    Daniel E. Devlin, and Louis C. Roberts, Co-partners, Doing Business as Devlin and Roberts v. State of Illinois.

      Opinion filed September 20, 1920.
    Legislative Committee — employees when not entitled to recover for services. An employee of a Legislative Committee cannot recover for services rendered after the sine die adjournment of the Legislature.
    Same — The Senate should have provided for the payment for the services and expenses of the employees of its Committee.
    Non-Liability of State — when the State is not liable. The State cannot be held liable for the payment of the expenses of a committee unless such committee was authorized by an Act, or Joint Resolution of the Legislature.
    Bebden of Proof — burden of proof is upon claimant. The burden of proof is upon the claimant to show that the services were rendered before the final adjournment of the Legislature.
    Edward J. Brundage, Attorney General, for State.
   The Attorney General admits that there is no dispute about the facts in this case. It appears from the declaration and evidence that in the year 1915, the State Senate of the 49th General Assembly appointed a committee to investigate the Board of Education of the City of Chicago; that the claimants were appointed by the committee as official reporters, to report the proceedings of said committee, at the rate of two dollars ($3.00) per hour for attendance, and fifty cents (50c) per page for the first copy, fifteen cents (15c) per page for the second copy, and ten cents (10c) per page for each succeeding copy of the transcript; that the committee commenced hearings on July 9, 1915, and ended on September 30, 1915, during which time claimants attended said hearings and performed their duties as official reporters. Claimants have attached an itemized bill for services, as agreed, amounting to $1,555.35.

There is no dispute as to the correctness of the amount of the claim. The evidence shows that these services were performed, and that claimants have not been paid therefor.

The Attorney General, for the State demurrs to the declaration, and says that as a matter of law, claimants are not entitled to recover, and cites the case of Fergus v. Russell, 270 Ill., 304, and especially refers to page 344 of said decision.- It appears from the evidence that this was a committee appointed by resolution of the Senate; that it was not authorized or appointed by a joint resolution of the Legislature and it would appear that the Senate in appointing such committee, should have provided for the payment of its expenses. The State cannot be held liable for the reason that the appointment of said committee was not authorized by Act or resolution of the Legislature. Claimant contends that the decision in the Fergus case is not in point because it is not shown that the services were performed after the sine die adjournment of the Legislature. The services were performed after July 1, 1915, when the Legislature is presumed to have adjourned, and when all acts of the Legislature approved by the Governor, came into force.

It seems to us that claimants, being bound to establish their case, must show that the services were rendered before the committee, prior to the sine die adjournment of the Legislature.

For these reasons, we do not think the State is liable under the law, and the claim is therefore rejected.

We find that the matters set forth in the declaration, are true, and that these services were performed by the claimants according to an agreement made with said Senate Committee, and that according to said agreement, the total amount of same is $1,555.25. While, under the law, the State is not liable for the payment of this claim, the Senate Committee should have made provision for the payment thereof before incurring same, and it would be no more than an act of justice for the Legislature to make an appropriation for the payment of this claim.


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    L. F. Brown v. State of Illinois.

      Opinion filed September 20, 1920.

    Fees and Salaries — resignation. When employee entitled to salary. Where an employee of the State resigns his position he is entitled to compensation for services rendered at the time his resignation becomes effective.
    Res Adjtjdicata — when a bar. A former decision to be a bar must decide the case upon its merits and not upon a technicality.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed for Dr. L. F. Brown of Galesburg-, Illinois, for services rendered as a member of the Board of Livestock Commissioners. The testimony stands on the record undisputed, it appearing by the same that Dr. Brown was appointed in due course and entered upon the performance of his duties under a compensation prescribed by the Statute of ten dollars ($10.00) per day for every day necessarily employed in the service of the State. The evidence shows further that Dr. Brown resigned when his resignation ivas requested; that his resignation took place the latter part of May, 1917; that his salary for the months of February, March, April and May, 1917, were not paid; that he worked twenty-four days in the month of February, 1917; twenty-seven days in the month of March, 1917; twenty-five days in the month of April, 1917, and twenty-seven days in the month of May, 1917, making a total of one hundred and -three (103) days. The only defense offered by the State was to call the Court’s attention to the case of the People v. ex rel, L. F. Brown v. Frank Lowden, et al, 285 Ill. 618. It is the opinion of this Court that a a rule of the doctrine res adjudícala that any former decision to be a bar must be upon the merits of the case. In the case of the People v. Lowden, cited the Supreme Court considered a mandamus suit directed against the Governor, the Auditor of Public Accounts, and the State Treasurer. The decision in that ease was based entirely upon a technicality which of course ivas properly invoked in the action and in' the Courts where it Avas determined. HoAvever, it is the opinion of this Court that the Court of Claims Avas established largelj- for the purpose of doing substantial justice and equity in all cases coming within its jurisdiction, and as there is no dispute as to the services rendered, the Court must conclude that the duties Avere properly performed by Dr. Brovm and that he was competent and faithful, consequently as a laborer he was Avorthy of his hire. Therefore it is ordered that an aAvard be entered in favor of the claimant herein for the sum of one thousand thirty ($1.030.00) dollars.


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    Hector Durante and Tony Blasi v. State of Illinois.

      Opinion filed September 20, 1920.

    Fees and Salaries — when State employee not entitled to salary. An employee of the State who has been suspended cannot recover from the State,the salary of the office he held where such salary has been paid to an occupant of the office during the period of suspension.
    De Jure and De Facto Officer — who entitled to salary. A De Jure officer, or employee, who has been for a time wrongfully prevented from discharging the duties of his office cannot recover from the State the salary for such time when it has been paid to the De Facto officer, or employee, who has discharged the duties of the position during the period of time the De Jure officer was prevented from discharging them. (The People v. Burdett, 283 Ill. 124.)
    Edward J. Brundage, Attorney General, for State.
   As the facts in these two cases are the same, and the briefs and abstracts filed cover both cases, they are both disposed of in one opinion.

The claimants, Hector Durante and Tony Blasi, were employed in the office of private 'employment agencies of the State of Illinois as inspectors of private employment agencies, and were under the Civil Service Act. They were suspended by the chief inspector of private employment agencies October 27, 1913, and charges filed against them October 28, 1913. The salary of each of the claimants was $125.00 per month. There was a considerable delay in hearing the charges by the Civil Sendee Commission, but a hearing was finally had, and on January 16, 1917, Durante and Blasi were ordered re-instated but without pay from the time of their suspension to the time they were re-instated. The reason given in the order of the Civil Service Commission why they should receive no pay for the time they were suspended was that the delay in hearing the charges was due to technical objections of claimants and their unwarranted action in securing a writ of prohibition to prevent the president of the commission from hearing the charges, which required an appeal to the Appellate Court to set aside the action of the Court granting the writ. The order recites that under the circumstances it would be unjust to allow claimants pay for the time they rendered no service to the State. Since January 16, 1917, claimants have been in the discharge of the duties of their respective positions and receiving the salary therefor. During the time claimants were suspended, the duties of their positions were performed by other persons under temporary writs issued by the Civil Service Commission, who were paid the salaries allowed employees in said positions. The claimants filed separate petitions for writs of mandamus in the Superior Court of Cook County to compel the Civil Service Commission, and the chief inspector of private employment agencies of the State of Illinois to certify and approve pay-rolls for their salaries during the time they were suspended, and also, commanding the State Auditor to issue warrants therefor and the State Treasurer to pay said warrants. The Superior Court held that Durante was entitled to the full salary during the time of his suspension ($4,708.33) and that Blasi was entitled to pay for the full time he was suspended, less $1,-602.76 earned and received by him during that period while employed as watchman in the office of the State Treasurer, and writs of mandamus were awarded as prayed. From this judgment, the Civil Service Commission appealed to the Supreme Court of Illinois. On deciding this appeal, in the case of the People v. Burdett, 283 Ill., page 124, the Supreme Court held that the claimants could not recover from the State the salary for such time as it had been paid to an occupant of the office who discharged the duties of the position during the period of time claimants were prevented from discharging them. We quote from the Supreme Court decision as follows: “A de jure officer or

employee who has been for a time wrongfully prevented from discharging the duties of his office, cannot recover from the State the salary for such time when it has been paid to a de facto officer who has discharged the duties of the position during the period of time the de jure officer was prevented from discharging them.”

This question was also passed upon by the Supreme Court in case of the People v. Schmidt, 281 Ill., page 211. This rule of law is founded in public policy, and protects the State or other governmental agency from liability for the payment of a double salary for the same office or employment.

The decision of the Supreme Court, had upon the merits of the case, where claimants were seeking to recover their salaries the same as they are in this proceeding, is binding upon this Court.

Both of these claims are therefore rejected.


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    James H. Tibbetts, et al v. State of Illinois.

      Opinion filed September 20, 1920.

    Inheritance Tax — when refund will be made. Where it appears that claimant is entitled to a refund, and he has complied with the provisions of the statute relating thereto the Court will enter an award in his favor.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed by James H. Tibbetts, trustee of estate of Nathaniel Tibbetts, deceased, and James H. Tibbetts, Annie Tibbetts, Henry A. Tibbetts, Mary R Tibbetts, Edgar Thorndike, Bert E. Thorndike, Alice Morrow, Nellie Davis, M. Forrest A. Davis, Mary Davis Eli, Erma Davis Zeiglis, Jennie Staples, claimants.

The claim is presented on stipulation of facts. Sept. 15, 1917, the County Judge of Henry County, approved report and made order assessing the estate of said deceased $1,597.42, which was duly appealed from the County Court in which an order was made ■ assessing a total tax of $1,194.90 and interest of $79.05 — $1,273.95, and ordered a refund to claimants of $323.47, that $65.94 of said sum was due Henry A. Tibbetts and the remaining $257.53 was due to the other claimants in equal parts, as refund.

The correctness and justice of this claim is admitted by the State.

An order is therefore herein made that said sum of $323.47 be paid to said trustee for use of the claimants as above indicated.


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    A. G. Spaulding & Bros. v. State of Illinois.

      Opinion filed September 20, 1920.

      Contract — supplies furnished. Where claimant furnishes supplies for a State Institution the State is liable for the same.
    Edward J. Brundage, Attorney General, for State.
   Claimant filed its claim for $19.99 for balance due on invoice for athletic goods furnished by it to the Southern Illinois State Normal School, at Carbondale, Illinois, as per invoice attached to claimant’s declaration.

The Attorney General, on behalf of the State, has admitted in writing that under the law and evidence in this case, the State is liable to the claimant for the sum of $19.99.

The Court therefore awards claimant the sum of $19.99.


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    Harlan K. Bolton, Theodore W. Smith as Trustees Under the Last Will and Testament of James Bolton, Deceased, and Mary Louise Smith v. State of Illinois.

      Opinion filed September 20, 1920.

    Inheritance Tax — when refund will not be made. Where an inheritance tax is assessed by the County Judge and paid by the executors, but no appeal is taken from the order of the County Judge fixing the tax, the claimant is not entitled to an award.
    Court of Claims — not a Court of review. The Court of Claims has no power or authority to review an order of the County Judge, and in order to obtain a review of such order it is essential that claimant should follow the plain provisions of the statute provided therefor.
    Edward J. Brundage, Attorney General, for State.
   Claimants, Harlan K. Bolton and Theodore W. Smith as Trustees under the last will and testament of James Bolton, deceased, and Mary Louise Smith, ask for a refund of inheritance tax, etc.

The facts submitted are by stipulation and no other evidence introduced.

It is stipulated that James Bolton died a resident of Naperville, Du Page County, Illinois, January 25th, 1917, that his will was duly probated and a copy attached to the stipulation.

That thereafter pursuant to proper proceedings the County Judge of said county entered an order fixing the inheritance tax in the estate of James Bolton, deceased.

That said James Bolton died leaving him surviving Harlan K. Bolton and Mary Louise Smith, his children and only heirs at law, and Bolton ICent Smith, Wilber C. Smith and Theodosia Smith, his grandchildren, all of whom are minors.

That said Bolton Kent Smith was born Oct. 29th, 1904, Wilber C. Smith born June 16th, 1907, and Theodosia Smith born Feb. 25tli, 1909.

That on the 23rd day of February, A. D. 1917, the executor paid to the County Treasurer $6,839.10 inheritance taxj same being amount entered by the County Judge, less 5% discount for payment within the six months after death of deceased, but paid under protest.

$30,000.00 was bequeathed to the said three grandchildren named in will.

Petitioners seek in this proceeding to recover back $570.00 paid as inheritance tax on the said $30,000.00 so bequeathed to the said grand children under the 6th and 7th clauses of the will.

During the course of the administration of said estate the claimants, desirable the will" construed as to that part disposing of the said $30,000 to the grandchildren, filed their bill in the Circuit Court of said county for such purpose and procured a decree of the Circuit Court construing parts 6 and 7. That the decree was to the effect, as contended by counsel for claimants that the $30,000.00 mentioned aforesaid was upon the death of the testator, James Bolton, deceased. Vested in said grandchildren. The State of Illinois was not made party to the last named proceedings.

Paragraph 7 of the will provides:

“It is my will and I hereby direct that the estate hertofore given in this will to my grandchildren shall not be distributed to them or turned over to them until they arrive at the age of twenty-one years, respectively, and that when any one of said grandchildren shall reach the age of 21 years, then his or her share shall be turned over to him or her by my said trustees.”

The County Judge entered an order assessing the inheritance tax on all the assessable property of said deceased, including the $30,000 so bequeathed to said three grandchildren under section 25, of statute, as admitted.

Section 11 of the inheritance tax law provides in part that: Any persons, including the Attorney General dissatisfied with the appraisement, or assessment may appeal therefrom to the County Court of the proper county within sixty days after the making and filing of such assessment order and paying or giving the County Judge security satisfactory to pay all costs, together with whatever taxes shall be fixed by the Court.”

Xo appeal was ever taken from the order fixing the assessment.

The decree of the Circuit Court did not in any way reverse or modify the County Judges order of assessment; nor did it pretend to do so. Xor did complainants after nor before such decree ever take an appeal from such order of County Judge or seek to have same modified.

The Court cannot review the order of the County Judge. The Statute in question provides for the manner of reviewing such orders of the County Judge, and it is essential and necessary that any one desiring a refund of inheritance taxes claimed to have been erroneously paid must first have the tax declared erroneous by some Court of this State, in accordance with the inheritance tax law; and inasmuch as claimants in this case have wholly neglected to take the steps provided by law we are compelled to dismiss this claim; but without prejudice to any legal rights which may accrue to these grandchildren, upon them reaching the age of twenty-one years respectively, should such age be attained by them respectively. See Susan Webster Dodge and Ralph Ensign, Executors, etc., v. The State of Illinois, 2 C. of C. P. 175, and 12 cases immediately and successively following the above cited case.

It is unnecessary for us to go further into the discussion of the case.

For reasons above stated claim is dismissed without prejudice.


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    Austin Manufacturing Co. v. State of Illinois.

      Opinion filed September 20, 1920.

      Contract — when implied promise to pay arises. Where materials are furnished or services rendered to the State, and are accepted by the State, an implied promise to pay for the material furnished or the services rendered will be implied.
    Edward J. Brundage, Attorney General, for State.
   This claim for price of additional equipment, parts and accessories for the Illinois State penitentiary crusher plant, located at Joliet, Will Count}', Illinois, and for the services of the superintendent to oversee and superintendend the erection of said equipment, furnished by the claimant to the State under a contract entered into by the Board of Prison Industries of Illinois with the claimant on April 23rd, 1914, and subsequent written orders and telephone order to the claimant by T. B. O’Brien, chief engineer of the Joliet penitentiary located at Joliet, Will County, Illinois.

It appears that the equipment, parts, accessories and services of the superintendent of erection upon which the claimant bases its claim were received and accepted and retained by the State and were used and operated at the Joliet penitentiary at Joliet, Illinois, and that on October 12th, 1917, there was a balance due the claimant of two thous- and eight hundred sixteen dollars and sixty-seven cents ($2,816.67) "for material furnished and services rendered as aforesaid and that claimants have not received any payment on this balance for which this claim is made, and the reason this claim has never been paid is that there was no appropriation available out of which it could be paid. This case is analogous to the case of Barrow, Wade, Guthrie & Co. v. State, 2 Ill. Court of Claims, 304 and it appears that the claimant is justly and reasonably entitled to the payment of this claim. Ho objection or defense to the claim being interposed on behalf of the State, and the honorable Attorney General having admitted liability of the State on its behalf, we accordingly award the claimant the sum of two thousand eight hundred sixteen dollars and sixty-seven cents ($2,816.67).


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    Alfred E. Spink, Administrator., Etc. v. State of Illinois.

      Opinion filed September 20, 1920.

    Inheritance Tax — when claimant entitled to a refund. Where an inheritance tax has been erroneously paid and claimant complies "with the provisions of the statute, he is entitled to a refund of the tax erroneously paid.
    Edward J. Brundage, Attorney General, for State.
   Alfred E. Spink, administrator of the estate of John Borden, deceased, erroneously páid $3,328.05, inheritance tax in excess of Avliat Avas laAvfully required to do:

The proper order Avas later made by County Court to enable him to collect of the State the amount so erroneously paid.

Proper demand Avas made by claimant for such refund and not being paid he asks this Court for re-imbursement for above amount.

The facts are stipulated by parties to the suit, and the State admits its liability to claimant in said claim for amount in declaration named.

The claim is just and should be paid.

The Court accordingly finds for claimant and against defendant in the sum of $3,328.05, and recommends payment of same.


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    Myrtle Ralston v. State of Illinois.

      Opinion filed September 20, 1920.

    Services of Nurse — military and naval code. When entitled to recover. Where claimant upon recommendation of the Board of Medical Officers appointed by the Commander-in-Chief under Sec. II, Art. 16, of Military and Naval Code, performs services as a nurse to an enlisted soldier of National Guard during his last illness she is entitled to recover a reasonable amount for the services performed.
    Edward J. Brundage, Attorney General, for State.
   This is a claim of Myrtle Ralston for services as nurse to Robert B. Ralston, a private soldier of Company A, 4th Inf. Regiment, National Guard of Illinois, during his last illness in the months of August, September, October, Nevember and December, 1918.

It appears that the Board of Medical officers appointed by the Commander-in-Chief under section 11, article 16 of the Military. Naval Code of the Statutes of Illinois, has investigated the circumstances in this case and recommended payment to the claimant the sum of four hundred and twenty-five dollars ($425.00), which claim has been referred to this Court by the Adjutant General in accordance with the Statute above cited. Upon careful consideration of the evidence in this case the Court is of the opinion that the claimant is entitled'to compensation and that the sum of four hundred and twenty-five dollars ($425.00) is a reasonable amount to be awarded to the claimant. No objection or defense being interposed on behalf of the State, the horn orable Attorney General having admitted liability of the State to the claimant herein, we accordingly award to the claimant the sum of four hundred and twenty-five dollars ($425.00).


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    William Pietsch, et al v. State of Illinois.

      Opinion filed January 19, 1920.

      Conveyance — when null and void. The grantor against his will was induced, by fraudulent representations of a representative of the State Board of Administration, to execute and deliver a deed conveying his property to the State, or Board of Administration, under the belief that he was legally liable to the State for the support of an insane brother, an inmate of a State institution. Held, that the conveyance to the State is a nullity, void and incapable of enforcement.
    State Officer- — no power to purchase or acquire real estate for the State hy private contract. An officer, agent or representative of the State, or any of its institutions have no power or authority to purchase or acquire, by private contract, real estate for the State for any purpose.
    Edward J. Brundage, Attorney General, for State.
   This is a suit brought by claimants to set aside a deed made by one Charls Pietsch, now deceased, in his lifetime purporting to convey certain lands therein described to the State of Illinois, on the expressed consideration that the State would maintain and care for a brother of grantor, who was an inmate of the State Insane Asylum, and remove the same as a cloud upon the title of the lands therein described, etc.

The evidence in the case discloses that on the 16th day of May, A. D. 1914, Charles Pietsch made, executed and delivered his quit claim deed to “Board of Administration for Support of Insane Department, or its managing officers” of Illinois, meaning and intending thereby to convey to the State of Illinois endeavoring and intending therein to convey the real estate and said deed contained. The deed so purporting to convey title is as follows, to-wit: “This indenture witnesseth that the grantor, Charles (Carl) Pietsch, unmarried, of the town of Bloomington, County of McLean, State of Illinois, for the consideration of human care of William Pietsch, inmate of insane asylum, and one dollar, convey and quit claim'to Board of Administration, support of Insane Department, or its managing officers in the City of Springfield, County of Sangamon and State of Illinois. All interest in the following described real estate, to-wit: The undivided one-half (1-3) of the entire five acres, beginning six chains and 53 links west and one rod north of the 8th sec. cor. on the south side of the S. E. % of Sec. 9, Town. 23, both of Range 3 E. of 3d P. M. thence northerly 12 chains and 27 links to- a stake; thence westerly 4 chains and 7 links, thence southerly 12 chains and 3 links; thence easterly 4 chains and 7 links to place of beginning. Also five acres (the undivided 1-2! thereof) off of east end of the following described lot of land, to-wit: The south end of the west half of the S. E. ^4 Sec. 9, Township 23 N. Range 2 East, containing 25 acres, beginning 12 chains and 45 links west and one rod north of the 1-8 sec. corner in the south side of the said southeast !y4 of said Sec. 9; thence northerly 1.2 chains and 24 links to a stake; thence westerly 4 chains and 8 links to a stake; thence southerly 12 chains and 27 links to a stake, one rod north of said south line of S. E. 14; thence easterly 4 chains and 8 links to the place of beginning, situated in the County of McLean in the State- of Illinois, hereby releasing and waiving all rights under, and by virtue ■ of the homestead exemption laws of this State. The grantor, Charles (Carl) Pietsch, to hold possession unmolested until his demise, and 'enjoy all income and profits of the premises and pay taxes and keep up repairs. In consideration whereof the State of Illinois will take care of the insane brother, William Pietsch, until his death, and then give him a Christian burial in the Bloomington, Illinois, cemetery.

Dated ICth day of May, A. D. 1914.

Ghakles Pietsoi-i. (seal)

Witnesses — James McLeary, L. G. Freeman.

The same was duly acknowledged before a Notary Public. Said deed was filed for record with the recorder of deeds, and duly recorded in the office of Recorder of Deeds of McLean County, Illinois, in book 305 of Deeds on page 216. It does not appear in evidence to whom the deed was delivered. The record of the County Court of McLean County shows the commitment of William Pietsch as an insane person.

The right of possession of the property attempted to be conveyed was retained by the grantor, who was under the terms of the supposed conveyance to enjoy the rents, issues and profits, so long as he survived, and at his death, the State was to give to the said insane patient a Christian burial, and to take over the property.

Said Charles (Carl) Pietsch died testate about September 24, 1919, in Bloomington, Illinois, leaving William Pietsch, Fred Pietsch, Rudolph Pietsch, Frank Pietsch, Edward Pietsch, Herman Pietsch, John Pietsch, William Wollenzein, Frederick Wollenzein, Minnie Schwartz, Mary Schneider, Clarence Wollenzein, Martha Wollenzein and Ella Heims, his only heirs at law him surviving.

It appears also in evidence that the said Charles (Carl) Pietsch was poor and really not liable for the support of his insane brother, William, but the State’s Representative who represented himself to be a lawyer looking after the interest of the State, induced him against his will to execute the deed in question, he believing, at the time, that he was legally bound to support his brother.

At the death of Charles (Carl) Pietsch, the aforesaid heirs at law, the claimants became tenants in common, as the only heirs at law, of said deceased, and took possession of said property, and continued in possession of same up to date of filing this claim, and the State has never had possession thereof.

It is very clear from the evidence before the Court that at the time of the execution of the deed in question, the grantor was not financially able nor legally required, to support his insane brother, the facts stated, as inducement to the grantor to execute the deed, were untrue and misleading and amounting to fraud in law.

The State of Illinois, under the Constitution and Statute can acquire real estate for public purposes only in manner and from expressly provided therein. There is no provision in the law where by an officer or agent or representative of the State or any of its institutions may go out over the country, and by private contract buy lands for the State for all purposes whatever.

A deed made to the State or to any of its institutions so procured would be a nullity, void and not capable of enforcement.

In view of the foregoing, the Court order adjudge and decree that the above said deed be, and the same is hereby declared mill and void, and of no binding force or effect.


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    The Peoples Life Insurance Co. v. State of Illinois.

      Opinion filed September 20, 1920.

    Lessor^ and Lessee — lessor should have notice of vacation of premises. Where there is a tenancy from year to year the lessor should have some notice of the vacation of the premises by the lessee.

      Same — when lessor entitled to• rent for remainder of term. Where the lessee vacates the premises without notice to lessor before the end of the term the lessor is entitled to recover the rent for the remainder of the term, less any rents received for the premises after vacation by the lessee,
    Edward J. Brundage, Attorney General, for State.
   This is a claim for rent alleged to be due the claimant who is the owner of an office building in the City of Chicago. It appears that the following departments of the State, namely, the Illinois Game and Fish Commissioners; State Board of Barber Examiners; State Fire Marshal; Illinois Waterway Commissioners and the State Board of Livestock Commissioners occupied space under certain leases in said building belonging to claimant.

The contention of the claimant is that by reason of holding over after May 1st, 1917, that the defendant would be liable under the year to year rule, together with the fact of a certain conversation had with Mr. Sutton the Governor’s private secretary. There is no dispute about the fact of these various departments occupying the spaces alleged. There is no dispute as to the amount of rent that the various departments were to pay for such spaces during the time they occupied same. •Consequently the only proposition for this Court to consider is as to whether or not the claimant is entitled to rent from the various departments until May 1st, 1918. This Court is of the opinion that the claimant should have some notice of the termination of the tenancy otherwise than anything we can find of record here, as a matter of justice, according to the contention of the Attorney General, the lessees took possession of the floor space leased on or about May 1, 1915, and continued to remain in possession in part until July 1st, 1917, a period of more than two years and we believe from all the facts herein that a lease for at least another year was entered into and it appearing from the evidence that the claimant used their best efforts to rent the space vacated by the said State Departments and that the total rent received for space vacated amounted to six hundred eighty dollars ($680.00) which deducted from the total of the rentals would leave a balance due the claimant of two thousand seven hundred eighty-one dollars and eighteen cents ($2,781.18). We believe that legally and equitably the claimant should recover for the loss they sustained. Therefore it is ordered that an award be entered in behalf of the claimant for the sum of two thousand seven hundred eighty-one dollars and eighteen cents ($2,781.18).


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    Peoria and Pekin Union Railroad Co. v. State of Illinois.

      Opinion filed September 20, 1920.

      Demurbage — when the State is liable for demurrage. Where it is shown that the proper authorities of the State Institution had notice of the arrival of the cars of coal, or were notified thereof, under the contract, a failure to unload the cars of coal because of no track room, or the bins were full, it being the duty of the consignee under the contract to unload the cars, the State is not relieved of its liability for the demurrage charges.
    Edward J. Brundage, Attorney General, for State.
   There is not much dispute about the facts of this case. This is a claim for demurrage, charges on certain cars of coal consigned via the Peoria & Pekin Union Bail road to the Peoria State Hospital at South Bartonville, Illinois, and unloaded on the private unloading track of the hospital, during the months of July, August and September, 1918, and January, 1919. This coal was shipped to the hospital under contract by the B. & B. Coal Company of Peoria.' On arrival at the Acme station of the railroad, the point at which the cars were set out for delivery to the private unloading track of the hospital, notice of arrival of each car was given verbally to an agent of the hospital, and on three occasions during the month of January, 1919, this agent signed constructive placement notices acknowledging arrival of cars and inability of the hospital to receive same on its private unloading track. The unloading track would not accommodate more than four cars, and at times the bins of the hospital were full and could not accommodate any more coal. For that reason the cars in question could not be placed at the time of arrival and were held for varying periods on the tracks of the claimant and for this detention beyond the free time allowed in the demurrage tariffs of the railroad, demurrage charges of $1,455.00 have accrued, for which the claimant asks the award of that sum and a further sum of $43.65 representing federal tax on the demurrage charge. The notice given verbally to the agent of the hospital was given in accordance with a custom of some years standing. It appears from the evidence submitted both on behalf of the claimant and on behalf of the State, that the only reason these cars were not set on the private unloading track of the hospital as soon as they arrived was because the track was full, or because the bins there were full, so that the cars could not be unloaded, and that the hospital authorities knew of this condition, and knew that this was the only reason the cars were not delivered to their private unloading track, by the claimant. The State takes the position that under their contrack they were to receive the coal delivered to the institution at a certain time and in quantities as designated, and that though they did so designate repeatedly the coal company persisted in sending the coal faster and in greater quantities than they could accommodate it, thereby causing the aecummulation of cars, and that under this state of facts the coal company, and not the State, should be held for these charges. They also contend that since, as the evidence shows, all cars were unloaded within 48 hours after delivery to their tracks, no blame should attach to them. They cite the circumstance that, as the evidence shows, the hospital authorities notified the coal company several times as to the time and quantity in which shipment should be made, and further that it was to be- delivered to the institution at a certain price. These contentions do not in our opinion relieve the State from liability. It is not shown that the claimant was in anyway responsible for the shipment of coal in greater quantities or more rapidly than the institution could receive it. It appears that the hospital authorities attended to the unloading and the providing of facilities for jinloading, so that any proper charge arising from a delay in unloading should, rest upon them. AVe therefore find for the claimant and make an award in its favor of $1,498.65.


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    Herman Maibauer v. State of Illinois.

      Opinion filed September 20, 1920.

    Mistake of Law — when money paid cannot be recovered back. Moneys voluntarily paid under an unconstitutional statute cannot be recovered back. (Robert Rohl, Sr. v. State, Supra followed.)
    Services Rendered — inmate cannot recover for services. An inmate of a State Charitable Institution cannot recover for services rendered during the period of confinement in such institution.
    Edward J. Brundage, Attorney General, for State.
   The claimant, Herman Maibauer, was adjudged to be insane in 1901 in Cook County, Illinois, and was committed to the asylum at Dunning, and afterwards transferred to Bartonville. Shortly after he was adjudged insane, he inherited about $1,000.00, and John II. Mackay ivas appointed conservator of his estate in November, 1902. During the time he -was committed as a ward of the State, his said conservator paid out for him to the State the sum of $459.70 under the Act to revise the law for Charities approved June 11, 1912. Claimant was discharged from the hospital on July 28, 1919, and brings this proceeding in his own name.

He seeks to recover the amount of $459.70 on the ground that the Statute which provided for its payment has been declared unconstitutional, and sets up in his brief and argument as a further reason, that during the time he was committed to the asylum for the State, he performed services for which he should be paid. In the recent cases of Frank Popham, conservator of the estate of Laura Hope Bain; and Robert Rohl, Sr., this Court held that money paid for the care of an inmate of a State hospital or State institution, under the Act to revise the law for Charities, approved June' 11, 1912, could not be recovered hack, citing the cases of People v. Foster, 133 Ill., 509, and Yates v. The Royal Insurance Company, 200 Ill., 202, where the Supreme Court held that money paid out under a mistake of law cannot he recovered back.

We do not think there is any force to the argument that complainant is entitled to recover for services he claims to have rendered while an inmate of the State hospital.

There is no authority in law for payment for such employment, and any services rendered by claimant must be considered as incidental to claimant’s commitment as an inmate of the hospital.

The claim is therefore rejected.


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    Southern Surety Company v. State of Illinois.

      Opinion filed September 20, 1920.

    Insurance Tax — claimant entitled to recover when erroneously paid. There being no dispute as to the facts and law governing this case the Court enters an award in favor of claimant for the amount of the tax erroneously paid.
    Edward J. Brundage, Attorney General, for State.
   This is a claim brought by the Southern Suruety Company, an Iowa Corporation for overpayment of insurance tax.

The only pleadings on file are the claimants declaration and State’s consent to the allowance of the same.

The declaration alleges, amongst other things, that prior to January 30th, 1919, the claimant erroneously paid to the State of Illinois in taxes $6,751.12, and that said sum was $1,240:54 in excess of the amount actually due.

. The facts set out in the declaration are few and brief, and clearly show that in keeping the accounts as indicated an error might easily be made, and such was the case.

The Attorney General admits the justice of the contention and consents that they made an order allowing the same.

The claim is sworn to and no objections to its allowance being made it is the order of the Court that complainant to have and recover the sum of twelve hundred and forty and 54/100 dollars ($1,240.54) against the State of Illinois, and an appropriation for same is recommended.


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    E. P. Field, Conservator of the Estate of Angie Bliss, An Insane Person v. State of Illinois.

      Opinion filed September 20, 1920.

    Mistake of Law — Herman Maibauer v. State, Supra followed. This case is similar to that of Herman Maibauer v. State, supra, and the decision of the Court in that case governs this case.
    Edward J. Brundage, Attorney General, for State.
   E. P. Field, conservator of the estate of Angie Bliss, an insane person, seeks to recover the sum of $202.70 for money paid to the Board of Administration of the State of Illinois, on February 5, 1916, for the support of his ward at the Jacksonville Hospital, under section 23 of the Act of 1912 revising the law in relation to Charities and states as a reason therefor that said law was declared unconstitutional and claimant should be reimbursed by the State.

The Attorney General lias filed his demurrer to the petition.

This Court passed upon this question in the cases of Frank Pop-ham conservator of the estate of Laura Hope Bain; and Robert Rohl, Sr., decided at a recent term of this Court, and in the case of Herman Maibauer, decided at the present term of this Court, in which the Court held that money paid under an unconstitutional Statute could not be recovered back, as it was a payment made under a mistake of law, and cited in support of this doctrine, the decisions of the Supreme Court of this State in the cases of People v. Foster, 133 Ill., 509, and Yates v. The Royal Insurance Company, 200 Ill., 202.

The demurrer filed by the Attorney General will be sustained and as the demurrer presents the right of claimant to recover, and as testimony has been taken showing the facts in the case, it will not be necessary for the State to file answer.

The claimant is therefore rejected.


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    S. A. Rathbun v. State of Illinois.

      Opinion filed September 20, 1920.

      Contract — when State is liable. The State is liable for merchandise furnished to its institutions at the request of its managing officers.
    Eclwarcl J. Brundage, Attorney General, for State.
   The claimant, S. A. Rathbun, presents his claim for balance of account for merchandise such as bunting, muslin, buttons, thread and ' sundry articles of dry goods, furnished to the Illinois State Reformatory at Pontiac, amounting to $213.94.

There is no dispute as to the correctness of this claim. Payment was not made on account of there being no appropriation remaining for said purpose.

The State, through the Attorney' General, has in wyting admitted that there is no defense to the claim, and has consented to the allowance of the same.

The Court therefore awards claimant the sum of $213.94.


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    Ola M. Gropp, for Herself and Heirs of Sargent Ernest W. Gropp v. State of Illinois.

      Opinion filed September 20, 1920.

    Military Service — when State is liable for death of soldier. Claimant’s intestate, was killed while performing his duty as a member of the Eleventh Inf. National Guard of Illinois. Held, claimant entitled to an award under Section II, Art. 16, Military & Naval Code of Illinois.
    Edward J. Brundage, Attorney General, for State.
   This claim has been presented on account of the death of Ernest W. Gropp who was killed while performing his duty as a member of the Eleventh Infantry National Guards, a part of the State Military Forces: that said soldier left surviving him, his widow, Ola M. Gropp and two minor children. The honorable Attorney General does not dispute the facts set up by the claimant, but admits that the proof sustained all the allegations contained in claimant’s declaration and leaving before this Court only the question of the sum or amount that should be allowed the claimant.

This Court recognizes the fact that there is great credit due one who voluntarily assumed burdens and obligations over and above his normal duties as a citizen, such acts of unselfishness and patriotic devotion should always command the highest commendation. This Court feels that it is beyond its power to fully compensate a loss such as that sustained by the claimant and in fixing an award, this Court has not such an intention in mind, but is moved to make an allowance as nearly consistent with the law and precedent as possible. We therefore award the claimant the sum of two thousand five hundred ($2,500.00)’ dollars.


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    Mary Bell Krueger v. State of Illinois.

      Opinion filed September 20, 1920.

    Responbeat Superior — clods not apply to the State. Under the doctrine of respondeat superior no liability arises against the State for injuries sustained by its employees while in the discharge of their duty.
    Workman’s Compensation Act — when not applicable to the State. The State is not liable under the Workman’s Compensation Act for the reason that the State was not engaged in the business or enterprise enumerated in Section 3, of that Act, to which the liability of the State as ah employer is limited.
    Edward J. .Brundage, Attorney General, for State.
   This is a claim filed by Mary Bell Krueger (since the filing of the claim has married and her name is now Mary B. Swenker) to recover compensation for injuries received by her while in the exercise of her duties as teacher at the State School for the Deaf in Jacksonville, Illinois, in April, 1919. There is no dispute about the facts in this case. The State takes the position that it is not legally liable for compensation or in damages in cases of this kind. This contention in the opinion of the Court is correct. The State is not liable for the reason that the doctrine of respondeat superior does not apply to the State.

Hedges v. County of Madison, 1 Gilm, 567.

Town of Waltham v. Kemper, 55 Ill. 348.

White v. County of Bond, 58 Ill. 297.

Symonds v. Clay County, 71 Ill. 355.

Hollenbeck v. Winnebago Co., 95 Ill. 148-516.

Elmore v. Drainage Commrs., 135 Ill. 269.

Counsel for the claimant endeavor to determine the compensation in this case on the basis of the Workmen’s Compensation Act, but it is admitted that the injury here complained of does not come within the provisions of the Act and no liability arises under this Act for the further reason that in conducting State institutions the State is not engaged in any of the enterprises or businesses numerated in section 3 of the Act to which the liability of the State as an employer is limited.

Walter J. North v. Board of Trustees of the University of Illinois, 201 App. 449.

Although it is conclusive .that there is no legal liability here, yet in exercising the functions for which it was created this Court has in a number of cases similar to this one held and decided that as a matter of equity and social justice the claimants were entitled to compensation and awards were accordingly made. Tinder this view the Court is of the opinion that in the interest -of social justice this claimant is entitled to an award and that from the evidence and, facts here presented the sum of twelve hundred and thirty-four and thirty-five cents ($1,-231.35) .would be a reasonable award to the claimant in full of her claim. We therefore award the claimant the sum of twelve hundred thirty-four dollars and thirty-five cents ($1,231.35) in full payment of said injury.


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    Clara D. Flynn, et al v. State of Illinois.

      Opinion filed January 19, 1921.

    Military Service — Section II, of Art. 16, Military and Naval Oode. Under Section II, of Art. 16, of Military and Naval Code in order to have a claim against the State, the party must he injured, wounded or killed while in the performance of his duty in pursuance to orders from the Commander-in-Chief, but such Act does not expressly provide for a claim for contracting a disease while a member of the National Guard, from which afterwards the soldier dies.
    Edward J. Brundage, Attorney General, for State.
   Mr. Thomas H. Flynn, on or about the first day of August, 1916, was drum major of the Sixth Illinois Infantry. In response to orders issued by the, Commander-in-Chief of the Illinois Rational Guard, he reported at Springfield, Illinois, for the annual encampment of this regiment. While attending this encampment he contracted a severe cold owing to the fact that,he was compelled to sleep upon the concrete floor of the hog pavilion in the State Fair Grounds where his regiment was quartered during the encampment. It was necessary for him, being drum major, of the regiment, to sleep near the regimental headquarters for the purpose of properly attending to his dutiess. He did so during the period of his stay in Springfield. Regimental headquarters were situated above the main entrance of. the hog pavilion. Mr. Flynn slept right near the main entrance to the building where the building was open and the rain and wind could beat in. Owing to the fact that he was not provided with a cot and a suitable number of blankets, he took cold, which after his return home, rapidly developed into what the attending physician called “galloping consumption,” from which disease he died on January 31st, 1917. Mr. Flynn enlisted in Company “A”, Sixth Infantry, I. G. H., June 18th, 1886, as a trumpeter; was appointed chief trumpeter June 18, 1887, which rank he held until July, 1907. At that time he was appointed drum major, which appointment he still held at the time of his death. Hei served under General Miles in Cuba and Porto Rico during the Spanish-Ameriean War.

The deceased left surviving him Clara D. Flynn, his ividow, and Blanche Elizabeth Flynn, his daughter, who are the claimants in this case.

This action is based upon Section 11 of Article 16 of the Military and Haval Code of this State, which provides that: In every case where an officer or enlisted man of the National Guard or Naval Be-serve shall be injured, wounded or killed while performing his duty as an officer or enlisted man in pursuance of orders from the Commander-in-Chief, said officer or enlisted man, or his heirs or dependents, shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand. Pending action of the Court of Claims, the Commander-in-C’hief is authorized to relieve emergency needs upon recommendation of a Board of three officers, one of whom shall be an officer of the- Medical department.

This Act provides that in order -to have a claim against the State, the party must be injured, wounded or killed while performing his duty. Said Act does not expressly provide for a claim for contracting disease while a member of the National Guard, and the evidence is not entirely satisfactory in this case that the disease of which Flynn died was contracted in the performance of his duty.

The Court is of the opinion that there is no legal liability on the part of the State in this case, and cannot allow this claim as a matter of legal right.

The claim will therefore be rejected.

However, the Court is of the opinion that'there is real merit in this claim outside of the strict rules of law, and as a matter of social justice, this Court recommends to the Legislature an appropriation to claimants of the sum of thirty-five hundred dollars ($3,500.00).