text:
    (Nos. 86-CC-2978, 86-CC-2979
    Kathleen S. Potter et al., and Ronald Struebin et al., Claimants, v. The State of Illinois, Respondent.

      Order filed April 9, 1987.

    Lane & Waterman, for Claimants.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This cause coming on to be heard on the Respondent’s motion to dismiss, the Claimants’ “resistances” thereto, the Court having reviewed the record and being fully advised in the premises, the Court finds:

1. An action was initiated in the Iowa district court for Scott County by Claimants against the State of Illinois alleging that James Potter and Joel Struebin died as a result of an accident on the 1-80 bridge over the Mississippi River between Iowa and Illinois.

Over the objections of the State of Illinois, the Iowa court ruled there was jurisdiction over Illinois.

After trial, a jury awarded $196,000.00 to Struebin’s estate, reduced to $57,070.59 because of Struebin’s own negligence and the amount paid by the State of Iowa in settlement. The jury awarded Potter’s estate $212,000.00 and reduced the amount to $61,729.41 for the same reasons. Claimants thereafter sought to garnish funds owed by Caterpillar Corporation to Illinois representing funds withheld for Illinois taxes.

Respondent urges that these actions which were filed April 18, 1986, should be dismissed because they are untimely and because of failure to give notice of the intent to commence wrongful death actions. If these actions are wrongful death actions, the Respondent is correct.

We do not believe that these actions are wrongful death actions. They do not seek to litigate the issue of wrongful death, but seek to collect monies alleged to be owed by virtue of the judgment of the Iowa district court. This finding, however, does not end our inquiry.

Section 9 of the Court of Claims Act (Ill. Rev. Stat. 1985, ch. 37, par. 439.22) provides that

“Every claim cognizable by the Court and not otherwise sooner barred by law shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within the time set forth as follows:
(f) All other claims must be filed within 2 years after it first accrues.. . .”

The complaints filed by Claimants each states in paragraph 2 as follows:

“2. This cause of action arises from the findings, conclusions, and judgments rendered against the State of Illinois in the Iowa District Court for Scott County on October 27,1983 in Law No. 62716.”

Claimants’ complaints, in paragraph 4, allege that they had execution issue in order to collect the judgments. The Iowa Supreme Court, on March 19, 1986, affirmed, on different grounds, the district court’s granting of a “special appearance” in the garnishment proceedings. A “special appearance” in Iowa appears to be the same as a “special and limited appearance” in Illinois. In any event, Claimants now urge that Respondent has “waived its right” to assert the Illinois statute of limitations because Illinois did not assert that defense in the Iowa proceeding. Additionally, Claimants assert that their Iowa judgment is entitled to full faith and credit under the Federal Constitution. Finally, Claimants assert that these claims “did not ripen until the decision of the Iowa Supreme Court (March 19, 1986).

Claimants’ complaints make clear that their theory was that the causes of action accrued on the date of judgment, i.e., October 27, 1983. The Iowa Supreme Court decision of March 19, 1986, was a post-judgment proceeding arising out of Claimants’ attempts to garnish Illinois funds owed for Illinois taxes, and not the date the cause of action accrued.

The Iowa judgment apparently was not appealed. We need not reach the “full faith and credit” question since we do not have jurisdiction to consider this claim.

The Respondent could not “waive” the defense of the statute of limitations. The Illinois Court of Claims has only the jurisdiction conferred upon it by the Illinois General Assembly. Our legislature, pursuant to the Illinois Constitution, has waived sovereignty only to the extent set forth in the Court of Claims Act. We have no authority, and would violate our oath of office, to expand the time provided in the statute of limitations. Accordingly, we have no alternative but to order that these causes are dismissed, with prejudice.


source: Caselaw Access Project

author: Montana, C.J.

license: Public Domain

text:
    (No. 86-CC-3146
    American Foundation for the Blind, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 5, 1986.

    Brown, Hay & Stephens (John P. Hassiepen, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This claim is before the Court following the filing of a stipulation by the Respondent agreeing to an award in the full amount sought.

On May 12, 1986, the Claimant brought this claim seeking $45,280.23 for services rendered pursuant to a . contract with the Respondent’s Department of Rehabilitation Services (DORS). In its standard “lapsed appropriation” form complaint, the Claimant alleged that it demanded payment from DORS but that said demand was refused on the grounds that the funds appropriated for the payment had lapsed. Attached to the complaint was a copy of the contract. Also attached was a letter from DORS’ supervisor of accounting, dated April 3, 1986, to the Claimant containing the following explanation as to why the Respondent could not make the payment:

“The attached invoice-vouchers, totaling $45,280.23, were not processed prior to the close of the fiscal year in which the commitment/obligation occurred. The appropriation for that fiscal year has lapsed; and in order to obtain payment for services rendered, it will be necessary for you to file a claim with the Court of Claims.”

On June 11,1986, the Respondent filed a stipulation stating that this was a lapsed appropriation claim and agreeing to the entry of an award based on the attached claim report compiled by DORS. The report, authorized by the same person who wrote the aforementioned letter to the Claimant, does indicate Claimant is entitled to be paid.

In the usual case involving lapsed appropriations, when an award is entered, the Court of Claims makes the payment. This is done in one of two ways. First, if the claim would have been paid, but for the lapsing of the funds, with either general revenue money or road funds and depending on the size of the award, the Court pays the award with funds appropriated to the Court for that purpose. Alternatively, if any other fund is involved or the award is large, the Court presents the award to the legislature. A bill is then passed, enacted into law upon signature by the Governor, and money is appropriated to the Court for the funds from which the claim should be paid. Upon receiving this special appropriation the Court pays the award. This approach is proper from a fiscal and accounting perspective because it ensures that obligations are attributed to the fund from which they would have been paid.

However, we are unable to follow either of those procedures outlined above in this instance. The DORS’ report, (as opposed to the letter) which pursuant to Rule 14 of the Rules of the Court of Claims is prima facie evidence of the facts contained therein, indicates that obligation in the case at bar would have been payable from a nonappropriated account. Therefore no appropriation lapsed. Because appropriated funds are not involved, the Court is unable to make the payment on the agreed award. The record is silent as to why DORS cannot make payment.

For the above reasons, we hereby enter a judgment in favor of the Claimant in the amount of $45,280.23, said judgment is to be paid from account number 831-48801-1900-00-99, and DORS is ordered to take whatever steps as are necessary to facilitate payment of this award.


author: Raucci, J.

text:
    (No. 87-CC-0220
    William Woodward, Claimant, v. The State of Illinois, Department of Corrections, Respondent.

      Order filed April 20, 1987.

    Richard J. Habiger, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This matter came to be heard on Claimant’s verified petition, Respondent’s answer, and Claimant’s motion for judgment on the pleadings.

The Court having read the pleadings and Respondent’s admissions, and being fully advised in the premises, finds the following facts:

1. Claimant, William Woodward, is an employee of the U.S. Forestry Service and is the victim of a crime that occurred more than two years ago.

2. Three twenty ($20.00) dollar bills [i.e., $60.00] were stolen from Mr. Woodward by Richard Carter, a prisoner at the Southern Illinois Community Correctional Center, more commonly called the “House of Glass,” a correctional facility operated by the Respondent.

3. Law enforcement authorities, the sheriff of Jackson County and local correctional officials, immediately investigated and found the money stolen from Mr. Woodward in the possession of Mr. Carter.

4. Thereafter, no criminal prosecution was initiated for the theft of Mr. Woodward’s money, but Mr. Carter was returned to maximum security at Menard Correction Center for violation of the disciplinary rules of the Department of Corrections.

5. The three $20.00 bills [i.e., $60.00] stolen from Mr. Woodward and found in the possession of Mr. Carter were confiscated by correctional officials and deposited in a “locally held fund” in the possession and control of local correctional officials at the “House of Glass.” [The fund is commonly referred to as a “resident benefit fund.”]

6. Thereafter, Mr. Woodward persistently endeavored to have his money returned to him but all efforts were rebuffed by departmental officials.

7. Upon written and telephonic inquiry by his counsel, Claimant was informed that the department would not return his $60.00 to him without an adjudication by the Court.

The answer filed on behalf of the Respondent, the Department of Corrections, admits Respondent’s liability to Claimant in the amount of $60.00, as prayed for by Claimant.

Based on the facts found and Respondent’s admission of liability, the Court concludes that no genuine issue of material fact exists which would require an evidentiary hearing and that judgment in the amount of $60.00 should be entered as a matter of law in favor of Claimant.

It is therefore ordered that Claimant, William Woodward, be and hereby is awarded the sum of sixty ($60.00) dollars.


text:
    (No. 87-CC-3576
    Citizens for a Better Environment, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 22, 1987.

    Robert J. Jones, Jr., for Claimant.
    Neil F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This cause coming before the Court on the parties’ joint stipulation and the Court being fully advised in the premises, the Court finds as follows:

On October 23,1986, Respondent, Illinois Pollution Control Board, adopted emergency rules to guide the implementation of section 39(h) of the Environmental Protection Act (“Act”) (Ill. Rev. Stat., ch. Ill½, par. 1039(h)), governing the land disposal of hazardous wastes, which was to take effect on January 1,1987. On October 31, 1986, Citizens For A Better Environment (CBE) filed a petition for review in the Illinois appellate court, first judicial district, alleging that the Board exceeded its statutory authority in adopting those emergency rules and seeking an order vacating the rules.

On January 26, 1987, following expedited briefing and oral argument, the appellate court issued a memorandum opinion and order holding that the Board had exceeded its authority and vacating the emergency rules. (Citizens for a Better Environment v. Pollution Control Board (1987), Ill. App. 3d_, 504 N.E.2d 166.) On April 9,1987, the appellate court issued an order under section 14.1 of the Illinois Administrative Procedure Act (Ill. Rev. Stat., ch. 127, par. 1014.1(b)) directing the Board “to pay to Citizens For a Better Environment its reasonable attorneys fees and costs incurred in this case in the amount of $25,000,” thereby approving a settlement agreement entered into by CBE and the Board.

The Board has made no payment to CBE and asserts it is unable to do so from its current budget. CBE filed this claim to obtain payment in accordance with the appellate court’s order. The parties to this action have stipulated that CBE is entitled to such payment and the entry of a $25,000 award by this Court. Like the Illinois Pollution Control Board, this Court has no ability to pay this obligation. Basically, it would have this Court seek the appropriation to pay the judgment rather than doing so itself. Because we agree that the money is owed, we will enter the award.

It is therefore ordered that Claimant, Citizens for a Better Environment, be and hereby is awarded $25,000 in satisfaction of the April 9,1987, order of the appellate court, first judicial district.


author: Roe, J. Raucci, J.

text:
    (No. 82-CV-0235

      In re Application of Marcella D. Lazarus.

      Order filed November 9, 1983.

      Order filed August 4, 1986.

    Bernard Epton, for Claimant.
    Neil F. Hartigan, Attorney General (Faith S. Salsburg and Sallie Manley, Assistant Attorneys General, of counsel), for Respondent.
   Roe, J.

This claim arises out of an incident that occurred on May 29, 1981. Marcella D. Lazarus seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on September 10, 1981, on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on May 29, 1981, the Claimant was robbed of her purse. The incident occurred at 4038 West Washington, Chicago, Illinois. While the Claimant was in her automobile, three offenders approached her car, smashed a window and grabbed her purse. They then fled the scene. The Claimant did not receive any physical injuries as a result of the incident.

2. That in order for a Claimant to be eligible for compensation under the Act, there must be evidence of one of the violent crimes specifically set forth under section 2(c) of the Act.

3. That robbery is not one of the violent crimes specifically set forth under section 2(c) of the Act.

4. That the Claimant seeks compensation for expenses she incurred for psychiatric treatment. The Claimant entered Caylor-Nickel Hospital on June 12, 1981, for treatment of injuries allegedly suffered in this incident. Total expenses for this hospitalization were $4,828.70, none of which was paid by insurance.

5. That the Claimant has not submitted evidence to substantiate that the expenses for which she seeks compensation were incurred for treatment of injuries directly related to this incident. Rather, it appears that these treatments were part of an ongoing condition originating prior to this incident.

6. That the Claimant has not met required conditions precedent for compensation under the Act.

It is hereby ordered, that this claim be, and is hereby denied.

ORDER

Raucci, J.

This is a claim arising out of an incident which occurred on May 29,1981. Claimant seeks compensation pursuant to the provisions of the Crime Victims Compensation Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court entered an order on November 9, 1983, denying the claim and the Claimant thereafter requested an evidentiary hearing.

The parties stipulated that on May 29, 1981, the Claimant was robbed of her purse. The incident occurred at 4038 West Washington, Chicago. While Claimant was in her automobile, an offender smashed the window and grabbed her purse and fled.

Claimant seeks compensation for hospital expenses of $4,828.70 for psychiatric treatment.

Claimant failed to submit any competent evidence that she was either physically or mentally injured as a result of the incident. She has a history of psychiatric treatment prior to the incident and submitted no evidence linking the treatment after the incident with the incident.

Since there was no evidence of injury nor evidence that the hospitalization was caused, in any way, by the incident of May 29, 1981, it is hereby ordered, that this claim is denied, with prejudice.


author: Holderman, J.

text:
    (No. 82-CV-1012

      In re Application of Alicia Lopez.

      Opinion filed May 26, 1987.

    Samuel Epstein, for Claimant.
    Neil F. Hartigan, Attorney General (Allison Breslauer, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This claim arises out of a violent crime that occurred on November 25, 1981, as a result of which Jose A. Lopez was killed. The claim is brought by Alicia Lopez, widow of the victim, seeking compensation pursuant to the provisions of the Crime Victims Compensation Act, hereinafter referred to as the Act.

On November 21, 1985, Claimant and Respondent stipulated at a hearing that Claimant is entitled to $2,000.00, the maximum amount of compensation available, for her paid funeral expenses.

The question at issue here is whether Claimant is entitled to an award of crime victims compensation for loss of support.

The record shows that during the six months immediately preceding the date of the incident for which compensation is sought, the decedent owned an apartment building in which he rented apartments to tenants. This was the only work decedent was engaged in at the time of his death. Claimant received the total rental income after the death of decedent, as she and decedent had prior to his death, until she sold the building in April of 1982.

Respondent contends Claimant is entitled to a $2,000.00 maximum award for funeral and burial expenses which she incurred and paid subsequent to the crime. Respondent further contends Claimant is not entitled to an award of compensation for loss of support as she did not sustain an actual pecuniary loss of support as a result of the incident.

The Court has adopted the ordinary and common definition of the word earnings which is, “something earned as compensation for labor or the use of capital.” (See In re Application of Chandler (1978), 76-CV-878.) The only earnings of decedent during the six months immediately preceding the date of his death came from rents paid to him and his wife from tenants in the apartment building they owned.

After her husband’s death, Mrs. Lopez testified at a hearing that she continued to receive the rental income until she sold the building. Upon the sale of the building, she received the amount she agreed to accept. Therefore, Respondent contends, Claimant has not sustained a pecuniary loss compensable under the Act.

The general rule in Illinois is that the party seeking to recover damages has the burden of establishing both the fact that he has been injured and a reasonable basis for determining the money value of those injuries. (Ashe v. Sunshine Broadcasting Corp. (1980), 90 Ill. App. 3d 97, 101, 412 N.E.2d 1142,, 1145; Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 677, 356 N.E.2d 565, 573.) (Although the present case is not a typical “damage” case, an award under the Crime Victims Compensation Act is analogous.) Further, damages may not be awarded on the basis of conjecture or speculation. Alover Distributors, Inc. v. Kroger Co. (1975), 513 F.2d 1137, 1141; Shoeneweis v. Herrin (1982), 110 Ill. App. 3d 800, 443 N.E.2d 36.

To follow the line of reasoning by Claimant, the Court would have to engage in speculation as to whether or not the Lopez’ would have kept the building or sold it for a greater amount. This Court has held that only actual out-of-pocket losses which it has defined as “losses which can be proven with a reasonable degree of certainty” are compensable under the Act. See In re Application of Reyes (1979), 35 Ill. Ct. Cl. 498, 503.

Claimant, in her brief, argues that her husband would have been paid $10,400.00 during the six months immediately preceding the date of the crime. Such an estimate is highly speculative and doubtful given the fact that Claimant’s tax return for the tax year 1981 shows repair expenses on the apartment building in the amount of only $1,995.72. Claimant also states she had to hire persons to perform the repair and maintenance tasks her husband had performed. Replacement services lost was not a compensable item under the Act at the time of the incident and, therefore, cannot be considered for compensation since the law in effect on the date of the injury is applicable to crime victims cases. (See Village of Wilsonville v. S.C.A. Services, Inc. (1981), 86 Ill. 2d 1, 426 N.E.2d 824.) Further, in order to compensate for replacement services lost, evidence must be presented to show the actual amount Claimant spent for the replacement services.

It is the Court’s opinion that Claimant is entitled to an award of $2,000.00 for funeral expenses she incurred and paid as the result of the violent crime committed against her husband. Claimant is not entitled to an award for loss of support as she sustained no pecuniary loss as the result of her husband’s death since she continued to receive the rental income subsequent to his death. The Court calls attention to the fact that no actual figures upon which an award could be based have been presented to the Court.

The Court hereby enters an award in favor of Claimant in the amount of $2,000.00 for funeral expenses and denies the remainder of her claim.


author: Patchett, J.

text:
    (No. 84-CV-1144

      In re Application of Rodolfo Coreas.

      Opinion filed April 22, 1987.

    Rodolfo Coreas, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Sallie Manley, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This cause comes after a hearing held before a commissioner of this Court. This Court finds that the complaint was filed May 15,1984, seeking compensation for medical and hospital expenses pursuant to the Crime Victims Compensation Act. Ill. Rev. Stat. 1983, ch. 70, par. 71 et seq.

The Claimant was shot during a robbery on September 19, 1983, at Primo’s Lounge, 1203 West 47th Street, Chicago, Illinois. He was first taken to Mercy Hospital and treated for gunshot wounds to his left arm and shoulder. He was then transported to Cook County Hospital for further treatment. Claimant does not seek recovery for loss of earnings, as he was unemployed at the time of this incident.

Claimant appeared without counsel, although his application was originally prepared by counsel. The Claimant was difficult to understand, as English was his second language. Despite continuous and vigorous attempts by the commissioner and the Assistant Attorney General to communicate with the Claimant, communication proved difficult.

No court reporter was present during this hearing because of the problem of communication between the Claimant and the Court.

Investigation by the office of the Attorney General disclosed that the Claimant had been a recipient of public aid since 1982, and that the Department of Public Aid had paid for most of his expenses at Mercy Hospital. All of his expenses at Cook County Hospital were paid by the Department of Public Aid. Therefore, the Claimant has no unpaid balance at either hospital.

The office of the Attorney General sent the Claimant two notices by certified mail requesting documentation of any expenses unpaid by him. They received no response. On January 17, 1986, the Attorney General’s Office filed a motion to dismiss the claim for want of prosecution. The Court dismissed the claim, and on May 15, 1986, the Claimant requested a hearing which was held before the commissioner of this Court on August 7,1986. At the hearing, the Claimant failed to submit any evidence that he had suffered pecuniary loss.

Section 2 (h) of the Crime Victims Compensation Act (Ill. Rev. Stat. 1983, ch. 70, par. 72(h)) defines a pecuniary loss for one who is injured as a result of a violent crime as medical and hospital expenses, medically required nursing care, loss of future earnings because of disability resulting from the injury, and other similar expenses. The Claimant offered no evidence of any unpaid or paid medical expenses by him. The Claimant also suffered no loss of earnings since he was unemployed at the time of the incident.

Where Claimant fails to show a pecuniary loss, the Court has denied compensation. (In re Application of Korneder (1983), 35 Ill. Ct. Cl. 1001; In re Application of Moreno (1983), 35 Ill. Ct. Cl. 1003; In re Application of Thomas (1981), 35 Ill. Ct. Cl. 522; In re Application of Reyes (1979), 35 Ill. Ct. Cl. 498.) Section 6.1(b) of the aforesaid Act further requires that the Claimant have a pecuniary loss of $200.00 or more in order to recover. The Claimant, in the case at hand, had none.

Section 8.1 of the Act places the burden substantiating a claim on the Claimant. (In re Application of Reyes (1979), 35 Ill. Ct. Cl. 498.) Since the Claimant can prove no loss, we hereby deny this claim.


author: Per Curiam.

text:
    (No. 86-CV-0322

      In re Application of Alberta Williams.

      Order filed May 15, 1987.

    Alberta Williams, pro se, for Claimant.

      Neil F. Hartigan, Attorney General (Sallie Manley, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim was brought by Alberta Williams, mother of Joe Henry Williams, pursuant to the Crime Victims Compensation Act (Ill. Rev. Stat. 1981, ch. 70, par. 71 et seq.) for funeral expenses incurred as a result of the death of Joe Henry Williams on August 30, 1985. The immediate cause of death was a stab wound of the chest.

The Chicago police initially arrested Clifford Willis for investigation with regard to Joe Henry Williams’ death. He was later released without any charges being filed against him.

Section 6.1(f) of the Crime Victims’ Compensation Act states that a person in the position of Mrs. Williams is not entitled to compensation if the death of the victim was substantially attributable to the victim’s own wrongful act and was substantially provoked by the victim. See Marchetti v. State (1980), 33 Ill. Ct. Cl. 433.

The evidence shows that the victim and Willis were in an automobile belonging to Willis when they began to argue and Williams began to beat Willis. Willis was knocked to the ground outside the car whereupon Williams pulled out a knife but did not use it. Minutes later, Willis was again attacked by Williams but this time took the knife away from Williams and stabbed him once. The evidence shows both men had been drinking prior to the incident. Claimant, Alberta Williams, was not a witness to the altercation.

It is the opinion of the Court that Joe Henry Williams was the instigator in this incident which led to his own demise. Willis acted in self-defense and therefore this claim should be denied.

This claim is hereby denied.


author: POCH, J.

text:
    (No. 86-CV-0599

      In re Application of John L. Vasconcelles.

      Opinion filed October 20, 1986.

    Roger C. Denton, for Claimant.
    Neil F. Hartigan, Attorney General (Sallie Manley, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This claim arises out of an incident that occurred on August 23, 1985. John L. Vasconcelles, father of the deceased victim, Mark J. Vasconcelles, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on November 25, 1985, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant’s deceased son, Mark J. Vasconcelles, age 29, was a victim of a violent crime as defined in section 2(c) of the Act, to wit: murder (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1).

2. That on August 23, 1985, the victim was shot, allegedly by an offender who was known to him. The incident occurred in a parking lot located at Sangamon State University, Springfield, Illinois. Police investigation revealed that the victim was leaving work when the offender approached him. The offender then produced a gun and for no apparent reason, shot the victim twice. The victim was taken to Memorial Medical Center where he was pronounced dead on arrival. The alleged offender has been apprehended and charged with murder. Criminal proceedings against him are currently pending as he has been found to be mentally unfit to stand trial at this time.

3. That the Claimant seeks compensation under the Act for funeral expenses and for medical expenses incurred prior to the victim’s death. The Claimant was not dependent upon the victim for support.

4. That according to section 10.1(c) of the Act, a person related to the victim is eligible for compensation for funeral, medical and hospital expenses provided that such expenses were paid by him.

5. That funeral and burial expenses were paid by the Claimant in the amount of $5,359.48. Pursuant to section 2(h) of the Act, funeral and burial expenses are compensable to a maximum amount of $2,000.00.

6. That the Claimant submitted an ambulance bill in the amount of $212.50, $62.00 of which was paid by insurance, leaving a balance of $150.00. The Claimant has not paid this balance. Therefore, pursuant to section 10.1(c) of the Act, this bill cannot be considered for compensation at this time.

7. That pursuant to section 10.1(e) of the Act, this Court must deduct $200.00 from all claims, (except in the case of an applicant 65 years of age or older) and the amount of benefits, payments or awards payable under the Workers’ Compensation Act, Dramshop Act, Federal Medicare, State Public Aid, Federal Social Security Administration burial benefits, Veterans Administration burial benefits, health insurance, or from any other source, except annuities, pension plans, Federal Social Security payments payable to dependents of the victim and the net proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance that would inure to the benefit of the applicant.

8. That the Claimant has received nothing in reimbursements as a result of the victim’s death that can be counted as applicable deductions.

9. That the Claimant may petition the Court to reopen consideration of his claim should he pay a compensable amount toward the outstanding medical expenses incurred as a result of the victim’s death, pursuant to section 16 of the Act.

10. That after making all the applicable deductions under the Act, the Claimant’s loss is in excess of the $2,000.00 maximum award deemed compensable under the Act for funeral benefits.

It is hereby ordered that the sum of $2,000.00 (two thousand dollars) be and is hereby awarded to John L. Vasconcelles, father of the deceased victim, Mark J. Vasconcelles, an innocent victim of a violent crime.


text:
    Lora J. Moore, Executrix of the Estate of James Hobart Moore, Deceased v. State of Illinois.

      Opinion filed September, 1918.

    Inheritance Tax — when inheritance tax cannot be assessed. An inheritance tax cannot he assessed upon the succession or transfer of shares of capital stock of foreign corporation to non-resident beneficiaries by the death of non-resident decedent.

      Jurisdiction — Court must have jurisdiction of the person of the beneficiary or of the property. To determine whether an inheritance tax is due the Court must have jurisdiction either of the person of the beneficiary or of the property, otherwise its judgment or order is void.

      Appeal — when claimant entitled to refund although appeal is not tahen. Where the order of the Court is void for want of jurisdiction the necessity for an appeal, as provided by statute, does not exist, and a failure to take an appeal is no bar to the recovery of the tax paid.

      Demand — when demand for refund not necessary. Where the entire estate is in the bank and the consent of the Attorney General and State Treasurer is necessary for a release or transfer of the funds to the executor, and such consent cannot he obtained, a demand on the County Treasurer for a refund is not necessary.

      Same — Section 10 of Inheritance Tax law applies only to State Treasurer. Section Ten (10) Inheritance Tax law only limits the time for application for refund on the State Treasurer.
    Inheritance Tax — when erroneously assessed. An inheritance tax assessed by a court without jurisdiction is erroneously assessed.

      Limitation — when right of recovery is not affected. Where the tax has been assessed and paid under a void order of the Court, the two year limitation does not affect the right of recovery.
    Edward J. Brundage, Attorney General, for State.
   The facts in this case show that James Hobart Moore died testate on the 18th day of July, 1916, a resident of the State of Wisconsin and that letters testamentary were issued in that State to Lora Moore, as executrix, no administration was had in Illinois.

On the 18th day of October, 1916, the County Judge of Cook County entered an order to assess the inheritance tax in said estate at $19,773.00 which amount, less 5 per cent discount was on the day of November, 1916, paid by Claimant to the County Treasurer of Cook County.

Thereafter, on the 5th day of September, 1918, on hearing a petition properly presented, the Acting County Judge of Cook County found, "that, included in said valuation upon which said purported assessment was made were certain shares of stock of corporations organized under the laws of other states than Illinois (describing the same) amounting to $654,672.91, and that the succession to said foreign shares was taxed at the rate of two per cent; and that the beneficiaries whose successions and transfers were specifically taxed were both at the time of the death of said deceased, and at the time of said purported assessment, residents of states and counties other than Illinois.

Upon such finding the Judge entered a decree finding that the order so made by the County Judge of Cook County on the 18th day of October, A. D. 1916, purporting to assess an inheritance tax in the estate of said decedent, insofar as it purports to assess an inheritance tax in said estate upon the transfer of said shares of stock of foreign corporations passing to said non-resident beneficiaries, was at the time it was entered, and now, wholly void for want of jurisdiction, and that the same be vacated and set aside. But that to the extent that the said order of the County Judge assessing a tax of $6,307.56 said order is not affected by this decrease, the said $6,30756 being the total tax assessable in said estate.”

That the payment of the sum of $12,438.79 included in said payment as aforesaid was void for want of jurisdiction.”

On the 26th day of ¡November, A. D. 1918, the claimant filed in this Court, claim for refund of the $12,438.79. Claimant claims that the same was inheritance taxes erroneously paid, and bases her right of recovery on section 10, chapter 120, of the Inheritance Tax Laws of Illinois, which reads as follows: “When any amount of said tax shall have been paid erroneously to the State Treasurer it shall be lawful for him, on satisfactory proof rendered to him by said County Treasurer of said erroneous payment, to refund and pay to the executor, etc., who paid any such tax in error the amount of such tax so erroneously paid, provided that all ajopli cations for repayment of said tax shall be made within two years from the date of such payment.”

It is admitted by. Counsel for the State that only $6,307.56 tax was properly assessed. The State further contends that the jiayment of the $12,438.79 under a void order was not a payment of an inheritance tax within the meaning of the Inheritance Tax Law, and that claimants have not challenged the correctness of the order by the method prescribed by the statute, and that they are not therefor entitled to a refund.

It is true the claimants did not pursue the remedy by appeal within sixty days after the entry of the County Judge’s order, approving the Appraiser’s report as they might have done under the statute; but inasmuch as the order of the Judge purporting to assess a tax upon the transfer of decedent’s shares of stock in foreign corporations to nonresident beneficiaries and void, it appears to the Court that the necessity for such appeal did not exist, and that it was properly attacked by ¡petition to the County Court, as above referred to; and that the County Court had jurisdiction and the power to decree such assessment void, we entertain no doubt. Oakman v. Small, 282 Ill. P. 360.

In the above case the Supreme Court said: “It is clear, however, that to enable the County Court to hear and determine whether an inheritance tax is due on the succession to property it must have jurisdiction over the beneficiary or property, and in this case, according to the averments of the petition, it had neither. The order made so far as it related to the shares of stock of foreign corporations passing to non-residents of the State by the will of Andrew Freedman and not by virtue of any law of this State, was void for want of jurisdiction, and if the averments of the petition are proved it will be the duty of the Court to vacate and set aside the order, and the prayer of the petition allowed."

It was upon this opinion that the County Court acted vacating and modifying'the order assessing the tax as aforesaid.

Upon the rendition of the aforesaid decree of the County Court, it is clear that the State was shown to be entitled to only $6,307.56 inheritance, and that $12,438.79 was illegally assessed and void.

But the entire amount had been paid to the State Treasurer.

The entire estate above mentioned was in the bank or banks in Cook County, and it could not lawfully be released or transferred to the Executrix without the consent of the Attorney General and State Treasurer of Illinois. This consent was not obtained and could not be procured from such officers of the State until the inheritance taxes claimed by them to be due was paid. Under such existing circumstances such taxes were thus paid — not voluntarily; but at the most expeditions way to get such securities transferred. It occurs to us that it it as useless to ask the State Treasury to refund as it is to demand a refund of the County Treasurer in such cases.

Ho appropriation is ever made in contemplation of payment of such inheritance tax erroneously paid. Hence the only remedy if any for such refund is in this Court.

The two year’s limitation mentioned in section 10 aforesaid does not affect the right of recovery in this case in this Court. It only limits the time of applying for refund from State Treasurer. Section 10. Supra.

The contention of the Attorney General that the amount claimed had been paid under a void order, as to the extent of the amount claimed herein and that therefore it was not an inheritance tax erroneously paid; and that therefore a, refund could not be had is quite technical and possessed some legal logic; but construing section 10 from a reasonable and equitable standpoint, we are of the opinion that the amount claimed was erroneously assessed as an inheritance tax, and was void for want of jurisdiction, and constitutes a valid claim against the State. See Report of Attorney General 1910, page 196-198, rendered May 20, 1910. .

Griffiths v. The State, 2 C. C. Report, page 128.

Weller et al v. The State, decided at last term this Court.

See also case of Metzger v. The State. Decided at last term this Court. Matter of Coogan, 27 Misc. Rep. (N. Y.) 563 aff’d 45 App. Div. (N. Y.) 628; 162 X. Y. 613.

Oakman, v. Small, 282 Ill. 360.

Oakman v. The State, No. 52. Decided at this term of this Court.

In view of the foregoing facts, as we have them, and the law governing the same we are of the opinion that there should be a refund by the State of the amount claimed.

We therefor accordingly award the claimant the sum of twelve thousand four hundred thirty-eight and 79/100 ($12,438.79) dollars. Approved.


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    McChesney and Becker v. State of Illinois.

      Opinion filed November 26, 1918.

      Practice — where no plea filed. Where no plea is filed to the declaration by the State, the case will stand on hearing the same as if the plea of general issue had been filed. Rule II, Court of Claims.
    Statute op Limitations — no waiver by State officer. A State officer is without power to waive or arrest the running of the statute of limitations on a claim against the State.

      Same — when need not be pleaded. The statute of limitations need not be specially pleaded to claims against the State.
    State Auditor — authority to employ private counsel. The State Auditor has no power or authority to employ private counsel to resist or interfere with the Attorney General in the performance of his duty, or efforts to have a receiver appointed for an insolvent bank.
    Non-Liability op State — officers exceeding their authority. The State is not liable if its officers exceed their authority.

      Agency' — statements and declarations not proof of agency. Agency cannot be proved by showing statements and declarations made by the agent.
    Edward J. Brundage, Attorney General, for State.
    Judge Eaton delivered the opinion of the Court.
   This suit was brought by McChesney & Becker, a firm of Attorneys, practicing in Chicago, Illinois, for seven hundred and fifty dollars ($750.00) claimed to be due them for professional services rendered the Auditor of Public Accounts of the látate. Their alleged services commenced on the 30th of July and ended on or about the 8th day of September, 1911. It is alleged in plaintiff’s Declaration that they were employed by the State Auditor under an agreement that they were to have one hundred dollars per day for all the time spent in the performance of their duties under such employment. It seems that about that time the Ashland Twelfth Street, State Bank, of Chicago, and the Calumet State Bank, also of Chicago, were in deep water financially; that the Attorney General of the State of Illinois had started suit in the Courts of Cook County, asking that receivers be appointed for each of these Banks. The services alleged to have been rendered by the Plaintiffs consisted of an attempt to reorganize these Banks and to resist the application of the Attorney General to have receivers appointed.

The Declaration alleges that under the provisions of Chapter 83, Section 31 of Hurd’s Statute, 1913, where nothing interferes with the running of the Statute, that the Statute of Limitations becomes a bar to any action against the State of Illinois on such a claim, after the expiration of the two year period, but that, where a new promise to pay, according to the tenor of the claim, and an acknowledgment made by the party subject to be charged with the debt, where the same was within a period of two years of the performance of the services, that the Statute begins to run from such new promise or asknowledgment, and the Declaration alleges that on Xovembcr 1st, 1916, James J. Brady, Auditor of Public Accounts, acknowledged the claim sued on and asked the complainants that the claim be forwarded to him in the form of a declaration to be filed in the State Court of Claims and that he, as ex-officio clerk of said Court, would present the same to the Court, and see that an award was made in favor of the complainants.

The Declaration alleges that this letter, alleged to have been sent to them by Bracly, constitutes such an acknowledgment of tire debt or new promise, as would arrest the running of the Statute of Limitations. The Attorney General has filed no pleadings in the case, and, under the rules of this Court, the case stands on hearing, the same as if tlie general issue had been filed.

The Attorney General claims in his brief and argument, First■ — • that the claim is barred by the Statute of Limitations; Second — that the State Auditor had no legal power or authority whatever, to contract ox employ the plaintiffs to do the things mentioned and set forth in the claimant’s Declaration.

The plaintiffs in their Declaration, acknowledge and admit that, under the statute in force at the time they rendered the services sued for, their action would be barred unless a new promise or acknowledgment had been made within two years prior to the starting of their suit in this Court, and place their whole case on a letter alleged to have been written by James J. Brady, on November 2nd, 1916, which is set forth in the depositions in the_ case.

We do not believe that the State Auditor, James J. Brady, if he wrote this letter, had any authority to make any acknowledgment or promise which would waive or retard the running of the Statute of Limitations, and an examination of the letter shows tliat he did not promise to pay the claim, but that, if the plaintiffs brought suit in the Court of Claims, he would use his influence, as clerk of such Court, and undertake to induce the Court to.allow the claim of plaintiffs’.

We hold that this letter does not constitute an acknowledgment of the debt or a promise on the part of the State of Illinois, to pay this claim, and that James J. Brady, Public Auditor, had no authority whatever, to make a new promise for the State, or to, in any way arrest the running of the Statute of Limitations. If he did make such promise, that the contents of the letter would he insufficient to constitute a new promise or acknowledgment, if said Brady had authority to make a new promise on behalf of the State.

Claimants, in their Brief and Argument, argue at considerable length that the Attorney General, not having specially plead the Statute of Limitations, that such defense was waived by the State and could not be set up as a bar to the action.

We hold that in a Court of Claims it is not necessary that the Statute of Limitations should be specially pleaded; that the Attorney General has no authority under the law, in any manner to waive or arrest the running of the Statute of Limitations in favor of the State.

In the case of Finn v. U. S. 123, 227, Hr. Justice Harlan, who delivered the opinion of the Court in said case, stated as follows:

“The general rule that the limitation does not operate by its own force as a bar, but is a defense, and that the party making such a, defense must plead the Statute, if he wishes the benefit of its provisions, has no application to suits in Courts of Claims against the United States. An individual may waive such a defense, either expressly or by failing to plead the Statute, but the Government has not expressly or by implication, conferred authority upon any of its officers to waive the limitation imposed by the Statute upon suits against the United States in a Court of Claims. Since the Government is not liable to be sued as of right, by any claimant, and since it has consented to a judgment being rendered against it only in certain classes of cases brought within the prescribed period after the cause of action accrued, a judgment in a Court of Claims for the amount of the claim, which the record or evidence shows to be barred by Statute, would be erroneous.”

We think that the rule, as laid down by Justice Harlan, is based on sound reasoning and should be applied in this case, especially so where the declaration itself shows the claim is outlawed and attempts to avoid the Statute by alleging a new promise or acknowledgment of the debt by the State, and where they failed, as they did in this case, to show that the State, by any authorized power, made any promise or acknowledgment which arrested the running of the Statute.

We do not believe that in this case there is any section in the Illinois Statute, empowering the State Auditor to employ private counsel to resist the efforts of the Attorney General to have receivers appointed for these particular Banks. After the Attorney General had assumed to take charge of the questions arising under the failure to these two Banks, and had brought proceedings in Court to have receivers appointed, the State Auditor had no authority to employ counsel to resist in Court, the proceedings instituted by the State of Illinois, through is Attorney General, or to employ private counsel to interfere or termeddle with the subject matter of the suit instituted by the Attorney General in any way, and it appears from the evidence of one of the claimants, that the State Auditor was interested largely in employing them to “save his own face.” It would be an absurdity to hold that, after the chief law officer of the State had started a suit on behalf of the public, that any other State officer had authority to employ private counsel at the expense of the State, to contest the proceedings brought by the State, through its Attorney General, especially where the evidence shows that he employed such counsel largely “to save his own face.”

We must hold that under the evidence in this particular case, the Auditor, James J. Brady, had no authority to incur a liability for Attorney fees, and that, if he did so employ private attorneys, that said attorneys have no claim against the State of Illinois for their fees. There is a total failure in the evidence of competent proof to show that the complainants were ever employed hy the State Auditor. The evidence shows that one of the complaints had a talk with a man hy the name of Coleman, and that they were really employed by the said Coleman. The declaration alleges that Coleman was an Assistant State Auditor, but there is no evidence in the record showing- that he held such position. He is referred to, in the testimony to Mr. McChesney, as a “representative” of the State Auditor, but what power or authority he has as such representative is not shown by the evidence. It is true that Hr. McChesney testified that Coleman represented to him that he had authority from the State Auditor to employ counsel, but it is elementary that proof of agency cannot be made by the showing or declaration of an agent, (Phillips v. Pouller, Ill. App. 330). The burden of proof of showing that Coleman was an agent of the State Auditor, with power to employ counsel, was upon the complainants. The mere fact that Coleman assumed to act as the agent of the State Auditor is not proof of his authority, (Schmidt v. Shaver, 196 Ill. 108).

We hold that the plaintiffs have no legal claim against the State of Illinois and their claim is wholly disallowed.


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    Ralph A. Green, Administrator, of the Estate of Frieda Reidel, Deceased v. State of Illinois.

      Opinion filed November 26, 1918.

    Respondeat Superior — not applicable to the State. The doctrine of respondeat superior is not applicable to the State. (Henke v. State, 2-C. G. II, followed.)
    Governmental Function — Starved Rock Park. The State in operating the Starved Rock Park exercises a governmental function and is not liable for the acts of its agents, servants or employees.
    Lessor and Lessee — lessor not liable. The State as a lessor of its property is not liable for the negligence of the lessee where the injury complained of was not caused by any of the employees of the State, or by a defect in the leased premises.

      Same — acts committed by strangers. Acts committed by strangers who were admitted to the leased premises does not create any liability against the State.
    Workman’s Compensation Act — no liability under. The State is only liable in cases which fall clearly within the provisions of Section Three (3) of said Act.
    Jurisdiction — The Court is without jurisdiction to allow a claim unless the facts show a legal pr equitable liability against the State.
    Edward J. Brundage, Attorney General for State.
   The administrator of the estate of Freída Reidel files this claim for $10,000, alleging that through the carelessness of the State, said Frieda Reidel was drowned at Starved Rock State Park at LaSalle County, Illinois, on July 6, 1916. The deceased was 21 years of age and was employed by the Western Clock Company at Peru, Illinois, and while on her vacation, in company with four of her friends, spent the day at Starved Rock State Park, and while there, went in bathing- with her friends in a lagoon or bathing pool which it appears was leased by the State to one W. E. Crosiar at a yearly rental. The deceased and her friends applied to the person in charge at the bath house and paid the admission fee for a permit to bathe and swim in said pool. While in said pool, five men, strangers to the deceased and her friends, came into the said pool and while the said deceased and her friends were on a raft in said pool, pushed said raft out into deep water and then upset said raft, throwing said deceased and her friends into the water. The deceased was drowned, but her friends were rescued. The strangers immediately left the pool and have not been heard from since.

Claimant in his argument, takes the position that the State is liable because it leased the said bathing-pool privileges for a certain rental and that it was the duty of the State to have someone in charge of the pool at all times, to protect persons bathing therein. It is admitted that there was a rope and a sign indicating the places of shallow water and of deep water in said pool or lagoon, and that the death of the deceased was not caused by any of the employees of the State or by any defect in the said bathing pool, but that her death came from the acts of strangers who were admitted to said pool on the same terms as the deceased and her friends.

The State, through its Attorney General, has filed a general and special demurrer to the declaration in this case on the grounds that the doctrine of respondeat superior is not applicable to the State, and also that in the absence of Statute, the State is not liable for the torts of its officers, agents or employees. The Supreme Court of this State, in the ease of Elmore v. Drainage Commissioners„ 135 Ill. 269, has held that the doctrine of respondeat superior does not apply to the State, and the Court of Claims in the following cases lias held that the doctrine of respondeat superior is not applicable to injuries sustained because of negligence of servants of the State:

Jasper v. State, 2nd Court of Claims, 323.

Allen v. State, Opinion filed October session, 1906.

Henke v. State, 2nd Court of Claims reports, page 11.

We are of the opinion that under the Act of 1917, creating a Court of Claims, this Court has no jurisdiction of this case. In operating the Starved Rock State Park, the State was exercising a governmental function and this Court has held in the case of Morrissey v. State, Vol. 2 Court of Claims, 267, that there can -be no recovery arising in tort in State institutions. In the North case, 201 Vol.. App. 449, cited in the State’s brief, the Court held that the State could only be liable under the Workmans Compensation Act in cases that came within the provisions of section 3 of said Act. The case at Bar does not come within the provisions of section 3 of said Act and we are of! the opinion that the Court of Claims Act does not repeal or abolish the rule, that the doctrine of respondeat superior is not applicable to the State. In our opinion there is no liability on the part of the State in this case. The demurrer to the declaration will be sustained, the case dismissed and this claim rejected.


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    Christian F. Wiehe, Assignee of Robert W. Thompson, v. State of Illinois.

      Opinion filed November 26, 1918.

    Services Bexdered — what must be shown in claim for services. Before a claimant is entitled to an award for services rendered he must prove the nature of the services performed, and that the amount claimed therefor are reasonable and proper.

      Estoppel — the Court has right to- go behind an approval of claim by a State officer. This Court is not estopped from going behind an approval of a claim by a State officer and inquiring into its reasonableness, its validity, or whether the services performed were necessary and proper to be paid by the State.
    Edward J. Brundage, Attorney General for State.
   On the 18th day of December, 1915, Hon. E. F. Dunne, Governor of Illinois, telegraphed one Robert W. Thompson, at La Salle, Illinois, informing him that the Waterways Commission wanted him in Washington, December 22nd, and stating that the Commission would pay his expenses and reasonable charges.

It appears that in response to said telegram Robert W. Thompson went to Washington, D. C. He afterwards rendered a bill for his expenses and charges to the Illinois Waterways Commission, the expenses consisting of railroad fare, hotel bills, fees to porters, waiters, etc., amounting to eighty-two dollars and thirty-five cents ($82.35) and he claims fifty dollars ($50.00) per day for his services for four days, making the total amount of his bill two hundred and eiglity-two dollars and thirty-five cents ($.282.35).

On March (ith, 1916, one Joseph 0. Ivostner, Secretary of the Illinois Waterways Commission wrote Mr. Thompson that his bill for two hundred and eighty-two dollars and thirty-five cents ($28.35) had been approved by said Commission and forwarded to the State Auditor for payment. Subsequently there wras an injunction issuing out of some court which apparently prevented the payment of this bill. In what Court this injunction was pending or what the final determination of it was does not appear from the evidence before us.

On March (ith, 1916, Robert W. Thompson executed an assignment of his claim against the State of Illinois, above referred to, to the claimant, Christian F. Wiehe. Mr. Wiehe immediately notified the Waterways Commission and the Auditor of Public Accounts that he had purchased the claim of Mr. Thompson against the State, and Mr. Wiehe claims that afterwards he filed the original assignment of said claim with the Auditor of Public Accounts of the State of Illinois, but- it appears from the evidence that the same has been lost or mislaid, if it was ever filed in the office of the State Auditor. There-' is no evidence in the record showing or tending to show what Mr. Thompson did on his trip to Washington, D. C. or what the nature of his alleged services were, or, that his bill for services are reasonable and proper for the work done. Under the condition of the proof this Court is unable to say that the State of Illinois owes him anything. It would certainly be improper for this Court to allow his claim without information as to the nature of the services lie claims to have rendered. For all that appears in the record he may have gone down there as a lobbyist or rendered other services which would be an improper charge against the State.

Counsel for claimant argues that because his claim was approved by the Illinois Waterways Commission, that this Court cannot go behind such approval and inquire whether the services were proper for the State to pay for or not; that in effect, this Court is estopped to question the validity of his claim or the reasonableness of the amount of his charges, or whether the services he claims to have rendered were necessary and proper to be rendered and paid for by the State. We disagree with counsel for claimant, and inasmuch as he has not shown to this Court what services Mr. Thompson rendered, or that said services were necessary and a proper charge against the State of Illinois, we cannot see that we would lie justified in allowing this claim. Claim is disallowed.


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    Frank Popham, Conservator and Administering Upon the Estate of Laura Hope Bain v. State of Illinois.

      Opinion filed November 26, 1918.

    Mistake of Law — no recovery cam, be had for moneys paid. Where, payment is voluntarily paid under a mistake as to the law it cannot be recovered back.
    Payment Under an Unconstitutional Law — when no recovery can be had. Where payment is voluntarily made under a statute which is after-wards declared unconstitutional no recovery of the amount paid can he had. (Home Life Ins Co. v. State, 2 C. C. 50, followed.)

      Duress — when payment is not compulsory. Payment is not compulsory unless it is made to relieve from actual or existing duress imposed upon the party paying hy the party to whom payment is made.
    Same. Order of Court — what does not constitute duress. Order of court directing conservator (of decedent’s estate) to pay claim against the estate does not constitute duress.
    Edward J. Brundage, Attorney General, for State.
   The claimant, representing the estate of Laura Hope Bain, now deceased, seeks to recover moneys paid by the conservator of said deceased from February 14, 1912, to April 1, 1917, amounting to $1,044.16 for the support of Laura Hope Bain while she was an inmate of the Kankakee State Hospital. These payments were made pursuant to the provisions of an Act of the Legislature of the State of Illinois approved June 11, 1912, providing that the total cost of the support of patients confined in asylums or State hospitals of the State of Illinois, was a charge against the estates of such inmates. This law was declared unconstitutional hy the Supreme Court of the State in the case of Board of Administration, Miles, 278 Ill. page 174, and on that ground claimant now seeks to recover the moneys paid under the provisions of said unconstitutional act.

The State filed a motion to dismiss this cause on the ground that the declaration does not comply with Bule 5 of the Buies of this Court, whereupon claimant filed a motion to amend the declaration and also the amendment to same, to which the State filed a general demurrer. The motion to amend the declaration will be allowed and the amendment directed to he filed as of the date of the motion and the demurrer filed by the State will be considered as a demurrer to the declaration as amended. The case, therefore, comes up on a question of law presented by the demurrer to the declaration as amended, as to claimant’s right to recover.

It seems clear to ns from the facts shown in the declaration as amended that the payments made by intestate’s conservator were voluntarily made and were not payments made under duress or compulsion and that these payments were made upon a mistake' of law. The Supreme Court in the case of the People v. Foster, 133 Ill. page 509, has held that where money is voluntarily paid under a mistake, as to the law and under a claim of right, it cannot be recovered back, and in the case of Yates v. The Royal Insurance Company, 200 Ill. page 202, the Supreme Court of this State decided that- the mere fact that the statute imposing a tax is unconstitutional and the tax for that reason illegal, does not authorize recovery of the amount paid if it was paid voluntarily. This is similar to the case at bar, where the Act was declared unconstitutional and claimant seeks to recover, and this Court, in the Home Life Insurance Company case, in which an opinion was filed December 19, 1908, held that there can be no recovery of payments made under a mistake of law.

It seems to us that the money herein sought to be recovered was paid voluntarily and not under duress. The duress must come from the party to whom the money is paid. Claimant in his brief contends that these payments were made under duress because the Court having jurisdiction of this estate directed the conservator of deceased to make these pajmients. The law" seems to be that a payment is not compulsory unless made to relieve from actual or existing duress, imposed by the party to whom the money is paid. There is nothing in this case to show that the State through its Board of Administration, did anything except to demand these payments, and exercised no duress of any kind upon the deceased or her legal representative.

We are of the opinion that the claimant has no right to recover in this case. The demurrer to the declaration as amended is sustained and the cause dismissed.


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    O. W. HUNKLE & COMPANY, a CORPORATION v. State of Illinois.

      Opinion filed November 26, 1918.

    Cancellation of Indemnity Bonds — entitled to allowance for earned premiums. Where bonds furnished by claimant for State employees are cancelled the State is liable for the amount of earned premiums on indemnity bonds.
    Edward J. Brandage, Attorney General, for State
   The claimant, at the request of the State of Illinois, requested claimant to furnish Fideliey Bonds to cover certain employees in the State Grain Inspection Department, named in the-declaration, which it did.

The proper charges for services are particularly itemized with the numbers of the policies and premiums due for each, showing a total amount of earned premiums by cancellation to be forty-three dollars and eighty-nine cents ($43.89), due from defendant to claimant.

The declaration is properly verified and in due form, and supported by the evidence, all of which the State admits to be true.

The claim is allowed and claimant awarded the sum of forty-three dollars and eighty-nine cents ($43.89).


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    Carl H. Yoder v. State of Illinois.

      Opinion filed November 26, 1918.

    Services Rendered — when claim for services will be allowed. _ Where claimant performs services for the State by the direction of the proper officer of the Department of Agriculture he is entitled to a reasonable allowance for the services performed and expenses incurred in the performance of his duty.
    Edward J. Brundage, Attorney General, for State.
   The claimant, Carl H. Yoder, performed certain services in Iroquois County during the years 1915 and 1916 under the direction of the State Veterinarian in ascertaining whether there was present in certain herds of cattle in said county, Tuberculosis or the Foot and Mouth Disease, which was prevalent at that time.

The State, through the Attorney General, admits that claimant performed the services mentioned in the declaration and that the amount claimed is reasonable and has been approved by the Department of Agriculture. The amount claimed is for five days at eight dollars per day, and $1.94 for expenses.

From the facts set forth in the declaration, we are of the opinion that claimant has the right to recover and that the charges claimed for his services and expenses are reasonable.

It is therefore the judgment of this Court that claimant be awarded the sum of $41.94.


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    Jeanne Edgar v. State of Illinois.

      Opinion filed November 26, 1918.

    Respondeat Superior — not applicable to the State. The -State, in the absence of a statute, is not liable for the torts of its officers, agents or employees.
    Edward J. Brundage, Attorney General, for State.
   This claim is filed by Jeanne Edgar, the surviving widow of Maxwell Edgar, deceased, against the State, for $20,000 damages for the death of her husband, Maxwell Edgar. Said Edgar was a lawyer by profession and a resident of Chicago. On April 6, 1917, he ivas committed to the State Hospital for the Insane at Elgin, Illinois, suffering from Paresis. On April 29, 1917, while an inmate of said hospital, it is alleged that he came to his death by wounds upon his body and abdomen inflicted by one or more employees employed by the authorities of said State Hospital for the Insane, at Elgin, Illinois.

The State, through the Attorney General, has filed a general and special demurrer to the declaration or statement filed in this cause, setting up as grounds or demurrer (1) that the doctrine of respondeat superior is not applicable to the State in this cause, and (2) that in the absence of Statute, the State is not liable for the torts of its officers, agents or employees, and in support of said demurrer, has filed a statement and brief. It does not appear that the claimant has filed any argument or brief in support of the declaration.

On consideration of the statement of facts set forth in the declaration and the demurrer and the brief of the Attorney General, it seems clear to us that there is no liability on the part of the State in this cause. In the case of Elmore v. Drainage Commissioners, 135 Ill., 269, the Supreme Court of the State has held that the doctrine of respondeat superior does not apply to the State, and the Court of Claims in previous opinions, has in the following cases held that the doctrine of respondeat superior is not applicable to injuries sustained because of negligence of the servants of the State:

Jasper v. The State, 2nd Court of Claims, 323.

Allen v. The State, Opinion filed October session, 1906.

The State, in the conduct- of the Elgin State Hospital for the Insane at Elgin, Illinois, exercises a governmental function and this Court has held that there can he no recovery arising in tort in such institutions.

This rule has been followed in the case of Morrisey v. The State, Vol. 2, Court of Claims, 267, in the case of Taylor v. The State, Vol. 2, Court of Claims, 243, and in the case of Henke v. The State, Vol. 2, Court of Claims, 11.

We are therefore of the opinion that there is no liability on the part of the State in this case. The demurrer to the declaration is therefore sustained, the cause dismissed and this claim rejected.


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    J. T. Hanley v. State of Illinois.

      Opinion filed November 26, 1918.

    Creation of Board — failure of Legislature to make appropriation for its operation. Liability of State. Where the General Assembly creates an agency of the State Government and fails to make an appropriation for the necessary expenses of its operation, a member of such agency or Board created who advances money necessary to defray such expenses is entitled to recover the amount expended, and a claim against the State for the necessary expenses advanced is a valid obligation against the State.
    Edward J. Brundage, Attorney General, for State.
   The claimant, J. T. Hanley, as manifested hy the evidence, was appointed member of the Board of Examiners of Structural Engineers, by the Governor of Illinois in 1915. The law creating this board was passed in 1915, and became effective July 1, 1915. The General Assembly in its enactment of the law, failed to appropriate any money for the conduct, and operation of said board in discharging the duties of said office. If, therefore, it became necessary for someone to pay the necessary expenses of the operation of said board, which was done by the claimant.

He expended, from time to time, money amounting to nine hundred eighty-seven dollars and fifteen cents ($987.15) which is itemized. Claimant was secretary of the board, and performed services as such, at a salary of one hundred twenty-five dollars ($125.00) per month. He received none of this salary for eleven (11) days in August, nor for the months of September, October and ¡November, 1915, which amounted to four hundred twenty-one dollars and thirty-five cents ($421.35).

This claimant seeks to recover these two items, which are clearly established by the evidence in the case.

The Attorney General admits in writing that there is no controversy as to claimant’s right to recover in this case.

In view of the foregoing, it is the opinion of the Court that tin-entire claim should be allowed and claimant is accordingly awarded the sum of fourteen hundred eight dollars and ninety-four cents ($1,408.94).


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    John W. Musham v. State of Illinois.

      Opinion filed November 26, 1918.

    Creation of Office — failure of General Assembly to make appropriation therefor. Where the State creates a Board and directs the members thereof to perforin certain duties and provides compensation for services and expenses of its members, and the Legislature neglects to make an appropriation therefor, the members of the Board may perform the duties prescribed by law and recover for their services and expenses advanced.
    Edward J. Brundage, Attorney General, for State.
   Claimant was on July 15, 1915, appointed by the Governor of the State of Illinois to be a member of the Board of Examiners of Structural Engineers, under an act approved July otli, 1915. He took the oath of office and entered upon the performance of his duties. The Act provided for a per diem of ten dollars ($10.00) for each board member for each day’s attendance upon the duties of said board, and also provided for traveling expenses in connection therewith. The Legislature, however, failed to make an appropriation for a per diem of the members of said board and their expenses until the special session of the Legislature in December, 1915, when an appropriation was made for the per diem salary of the board, but no appropriation was made for their traveling expenses. The amount claimed in this case is for 21 meetings attended by claimant at ten dollars ($10.00) per day, from August 20, 1915, to November 23, 1915, and for traveling expenses from August 19, 1915 to April 25th, 1911 amounting to $55.00, making a total of $265.00.

The State, through the Attorney General, has filed its written admission that there is no question as to claimant’s right to recover in this ease. It is a well settled rule of law that where a State creating a board directs the members of the board to perform certain duties and provides for compensation for the services and expenses of said board members, but the Legislature neglects to make an appropriation for the said salary and expenses, the members of said board may carry out the provisions of the Act, and recover for their services and expenses.

We are of the opinion that claimant is entitled to recover in this case. The Court therefore awards the claimant the sum of $265.00.


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    Ruth Bailey, et al v. State of Illinois.

      Opinion filed November 26, 1918.

      Coxtbact — when teacher entitled to salary for full term. A teacher who is employed to teach school for a definite term is entitled to recover the stated salary for the full term, although the school is closed by the proper school authorities before the end of the term, provided she is willing, able and ready to complete the term.

      Same — when not entitled to salary. Where there is no contract for a definite term, or where the teacher enters upon her duty with notice that the term had been shortened by the proper authorities, no recovery can be had for a full term where it is only shown that formerly the school operated for a longer period of time. In such case no presumption will amount to a contract.
    Implied Coxtbact — ichat does not amount to. A written inquiry by the teacher to the proper school authorities as to the probable length of time the school will be operated, to which no reply was made, will not raise an implied contract as to the length of the term.
    Edward J. Brundage, Attorney General, for State.
   This suit was brought by a large number of persons who have been teachers in the Illinois School for the Deaf at Jacksonville, Illinois. The parties do not have a joint claim, but each one has a separate claim and have all joined in one suit, asking a separate allowance in different amounts, to each of the claimants.

It appears from the evidence that prior to the year 1916, for upwards of thirty years, the institution above referred to, carried on the school for a period of nine months each year. It also appears that the Board of Administration of the State of Illinois, entered an order known as “General Order No. 133” fixing the term of said school at nine months. This general order went into effect September 1st, 1915, and was published in a book issued by said Board, giving a list of salaries and wages per month, of Illinois charitable institutions, including the School for the Deaf at Jacksonville, Illinois.

In the spring of 1915, Mr. Charles P. Gillett was managing officer in the institution, and when making arrangements for the school year commencing on or about September 1st, 1915, he mailed to each of the persons he desired to be emplo)red in said school for the ensuing year, a letter as follows:

“Illinois School for the Deaf,
Superintendent’s Office.
Please inform me whether you wish to retain your position in this school during the term beginning next September. If )rour answer should be in the affirmative I shall take it that you make it in good faith and, with your consent, that said reply be considered in the nature of a contract. Please reply within seven clays, using the enclosed form.
Tours truly,
Superintendent.”

This note was sent to all persons who claim under the first count of the declaration herein and each of them answered in the affirmative. We hold that their acceptance of the position tendered them by Mr. Gillett amounts to a contract with said institution for one school year of nine months, and that each of said persons are entitled to full nine months’ pay according to the schedule of wages and salaries established by the Board of Administration, and published by said board in the book introduced in evidence, marked Exhibit “D”. The school year of 1915-1916 was afterwards shortened by the authorities and made to end June 1st instead of June loth, 1916, and the teachers employed for that year were paid for only eight months and a half. It is shown' ill the evidence that the institution was closed for purposes of economy by the Board of Administration, who had authority in the matter. The teachers during the school year, were only paid for eight months and a half, although employed, as we hold, for nine months. Under the evidence in this case, we must hold that the teachers claiming for wages for the two weeks from June 1st, to June 15th, 1916, are entitled to pay during that time, notwithstanding there was no school in operation and that they did no work for the institution.

There are two other counts in the declaration. In the second count a large number of persons are claiming pay for the two weeks from September 15th, 1916, to September 30th, 1916, and the persons claiming under the second count are suing for wages because the school did not commence two weeks earlier. Under the third count a large number of teachers are claiming pay from June 1st, 1917, to June 15th, 1917, during which period the school was closed by the lawful authorities empowered so to do.

It appears that the school year of 1916-1917 only covered a period of eight months and for that time the teachers were paid, and they insist that they should be paid for the full nine months. There is no evidence in the record tending to show that these teachers had made any contract with the school, establishing the length of time for which the school year of 1916-1917 should run. They all knew that the school year of 1915-1916 was shortened by the lawful authorities, and again took up their duties in the fall of 1916, without any understanding or agreement. All these teachers were Civil Service employees and could not be discharged without proper cause, but there was no reason why they should not have found' out, before entering upon their occupation . as teachers in the fall of 1916, how many months they were expected to teach that school year. They had notice of the fact that the term of school had been cut clown to eight months and a half the previous year, and that it commenced two weeks later in the season than it had ever commenced before. We do not think that they had a right to presume that the school would run for nine months, and now urge, as they do in this case, that their presumption should amount to a contract. They were not given a notice similar to the teachers who are claiming in the first count, so far as the evidence shows, but simply continued in their employment as employees under the Civil Service of the State. The evidence falls far short of showing that the teachers who taught in this institution during the school year of 1916-1917, had a contract, either express or implied, that the school year was to he nine months and they were to have nine months5 pay.

On the 29th day of April, 1916, after the Board of Administration had shortened the term of school in the School for the Deaf,, to eight and one-half months it appears from the evidence that the teachers were very much dissatisfied and exercised over the question as to whether they were to be paid for the two weeks cut oif from the school year, and a committee consisting of seven persons, all of whom are named as claimants in the first count of the declaration, forwarded a written communication to the Superintendent of the school, Mr. C. P. Gillet-t, which is as follows:

“Jacksonville, Ill., April 29, 1916.
Mr. C. P. Gillett, Superintendent,
School for the Deaf,
Jacksonville, Ill.
Dear Sir:
In view of the fact that an order from the Board of Administration directs that our school be closed two weeks earlier than usual, we desire to know if it is the intention of the board to withhold the salaries of the teachers for said time. As you know, our understanding last year with you, acting for the board, was made in good faith and with the clear statement that it ivas for the school year and not by the month.
Because of this fact, we feel that we are entitled to the full salaries established by the board last fall for the year, as per General Order K"o. 133.
We desire also to know if the full salaries, as established by this board in the aforesaid General Order, will be paid during the coming school year.
As men who have business obligations and responsibilities we ask in all courtesy to know the exact compensations to be received.
Respectfully submitted,
E. P. Cleary,
G. H. Putnam,
D. W. George,
C. Spruit,
H. D. Snyder,
C. W. Taylor.55

This communication plainly shows that as early as April, 1916, the action of the Administration Board in cutting down the school year ■ of 1915-1916 warned all the teachers that the same might be done for the next school year. These teachers seem to have been alert and wide-awake and then made demand on the Superintendent to ascertain the number of months the school would be continued in the coming }’ear. There is no evidence to show that the Superintendent, or any other authority of the school answered this communication. It leaves the situation thus: The school year for 1916 had been cut down to eight and one-half months, regardless of all previous custom and regardless of General Order Xo. 133 of the Administration Board, and these teachers immediately made inquiry as to what number of months would constitute the succeeding school year, showing that as early as April, 1916, they were not relying upon General Order Xo. 133, or upon any previous “understanding” which they emphasize so much in their testimony. They had a right, before they started in to teach for the year 1916-1917, to demand a contract or quit, but after having made this inquiry and receiving no reply from it, they seem to have elected to remain in the employ of the institution as teachers and take their chances as to the length of time the school would be operated during that year. After having addressed this communication to the Superintendent and having received no reply from it, they are in no position now to urge or claim, before the Court, that they had a contract that the school was to be operated for nine months and that they were to receive nine months’ pay.

The claims of all persons set forth in counts numbers two and three and hereby disallowed. We hereby make allowance to the persons claiming under the first count in the declaration as follows, to-wit:

To Bailey, Ruth, teacher.......................;....................$52.50 To Berkeley, Anne, teacher.......................................... 52.50 To Brown, Margaret, teacher....................................... 66.67 To Bryns, Margaret, teacher........................................ 66.67 To Carter, Laura, teacher........................................... 50.00 To Carter, Mary D., teacher......................................... 55.00 To Cleary, E. P., teacher............................................ 66.67 To Davis, Amanda, teacher......................................... 55.00 To Devitt, Jennie É., teacher........................................ 60.00 To George, D. W., teacher.......................................... 66.67 To Gillett, Alma, teacher...................... 60.67 To Hayden, Josephine, teacher...................................... 50.00 To Howard, Belle, teacher........................................... 66.67 To Jackson, Anne W., librarian...................................... 36.11 To Jordan, Edith, teacher........................................... 62.50 To Jordan, Helen, teacher........................................... 66.67 To Kingsley, Anna, teacher.......................................... 52.50 To Krueger, Minnie B., teacher...................................... 60.00 To Lee, Louisa, teacher............................................. 50.00 To Maeomher, Phyllis, teacher...................................... 52.50 To Martin, Mary L., teacher..........-............................... 66.67 To Noyes, Sarah, teacher............................................ 66.67 To Orr, Della M., teacher............................................ 52.50 To Putnam, G. H., teacher.......................................... 66.67 To Race, Effle J., teacher............................................ 66.67 To Russell, Catherine, teacher.. ..................................... 50.00 To Russell, Margaret, teacher....................................... 66.6-7 To Sandberg, Irene, teacher......................................... 52.50 To Sheridan, Laura, teacher......................................... 66.67 To Sheridan, Mary J., teacher.......................................• 66.67 To Snyder, Harry, teacher.......................................... 60.67 To Spruit, C., teacher............................. 75.00 To Spruit, Florence, teacher......................................... 52.50 To Taft, Carolyn, teacher........................................... 60.00 To Tanner, Annie, teacher............................,............. 66.67 To Taylor, C. W., teacher........................................ 75.00 To Taylor, Jean, teacher............................................ 66.67 To TJpham, Mary C., teacher.............................. 66.67 To Walton, Idella, teacher........................................ 66.67 To Wood, C., teacher............................................. 66.67 To Wood, Frances S., teacher.................................... 88.89 To Young, Annie, teacher.................... 66.67


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    Joseph B. Thompson v. State of Illinois.

      Opinion filed November 26, 1918.

    Respondeat Superior — doctrine of not applicable to State. The doctrine of respondeat superior is not applicable to the State, and in the absence of an express statute the State is not liable for the torts of its officers, agents or employees.

      Quarantine — State officer has right to quarantine against infection disease. The State officer acting under the police power of the State has the right to place a quarantine against infectious disease for the public good, and in so doing no liability attaches to the State in favor Of a person aggrieved.
    Public Nuisance — diseased cattle. Cattle affected with foot and mouth disease are a public nuisance.

      Practice — Par. Jh of Sec. 6, Court of Claims Act. Par. 4 of Section. 6, does not create any new or additional liability against the State, but simply provides a remedy by which certain claims may be heard and determined, and gives this Court no power to make an award in any case unless the facts show a legal or equitable claim against the State.
    Edward J. Brundage, Attorney General, for State.
   This case is brought by claimant for damages alleged to be due him for loss by depreciation in weight of 618 head of sheep, which claimant in October, 1915, purchased, in the West and caused to be shipped to Earlville, LaSalle County, from whence they were to be taken to his farm, nearby, to feed; and later to be put into market, as they were. After the sheep were shipped from the West and before their arrival at their destination the County of LaSalle was quarantined against hoof and mouth disease. Consequently claimant was not permitted to unload his sheep at Earlville; but unloaded and took them to Somenauk in Delvalb County, the adjoining county, where he kept them several weeks, after which the quarantine was lifted and he took them home, pastured, fed and sold them in market. He claims that pasturage at Somonauk being inferior to that in his own, at his farm, the sheep rapidly depreciated in weight and health by reason of such inferior pasturage and that in consequence of which depreciation, and the death of Í8 or 20 head, he claims damages in the sum of thirteen hundred ten and 93/100 ($1,310.93) dollars. The evidence, in substance, is that in October, 1915, claimant and others bought several car loads or sheep in some of the far Western states and shipped them to their homes in Illinois to put on pastures that were then green, and after a while, when the pastures were cleaned up the sheep, which were expected to make substantia] gains in weight, were to lie sold on the market with the expectation of making a profit on the gain in weight.

That after they were shipped and were in transit from the West, and before their arrival at their destination, Earlville, in LaSalle County, Illinois, which is a few miles from the home of claimant, a quarantine was placed upon certain territory embracing LaSalle County, on account of alleged prevalence of hoof and mouth disease, and claimant was forbidden by the State authorities to ship or unload his sheep in LaSalle County; but unloaded them in the adjoining county and there kept them on the fairground at Somonauk for several weeks.

Claimant alleges and testified that the Chairman of the State Board of Live Stock Commission told him during first week after the sheep were unloaded that he would soon be permitted to take his sheep home to his farm. That said sheep were not permitted to be taken into LaSalle County to claimant’s home till October 27th, 1915.

By that time the frosts had killed claimant’s pasture and the sheep had fallen off in weight, and lost in consequence of inferior pasture at the fairgrounds at Somonauk. The sheep were subsequently sold in market, at three different times.

The shipment he made in January, 1917, were sold on same day, in same market in which one Ole Benson sold his sheep, which were a part of the same sheep that were shipped from the West with claimant’s sheep, and they brought some $2.00 a head more than claimant’s sheep.

And by comparison of prices of his and Benson’s sheep he reaches the conclusion that he lost $2.00 ¡ier head all told on his sheep.

The State demurs and claims it is not liable, first, because the doctrine of respondeat superior is not applicable to the State; second, that in the absence of statute, the State is not liable for the torts of its officers, agents or employees; third, the claim is barred by the statute of limitations.

The evidence discloses the fact that something like a year before this the hoof and mouth disease had been prevalent in LaSalle County and that the county had been quarantined. Also a case or two had been reported in said county a few days before the sheep arrived from the West and the county ivas again quarantined by legal authorities, and under the rules claimant could not for some three (3) weeks ship his sheep into LaSalle County.- Claimant endeavors to show that there Avas no necessity for the quarantine. There is no doubt of the presence of the disease in LaSalle County at time of quarantine and the State not only had a right, but it Avas the duty of the proper officers to place a quarantine AA'hen they had reasonable grounds to suspicion the presence of infectious diseases, as the hoof and mouth disease, in any county or territory.

The foot and mouth disease is regarded as very dangerous and cattle affected Avith it become a public nuisance. Durand v. Dyson, 221 Ill. 382.

Wilder the police poiver the State had a right to place the quarantine as it did in the present instance and no individual has a right to complain, Avhen the act Avas for the public good.

Hurd’s Bevised Statute, Chapter 8, Paragraph 48.

The damage, if any,, that may have resulted, to claimant by reason of the establishment of the quarantine was unavoidable and only incidental, and perhaps the same complaint might be made by others, but private interests are subordinate to public rights, and under such circumstances, as in the case at bar the individual cannot complain, unless there is an express provision in the Statute giving him a remedy. And in this class of cases there is no statutory provision for compensation claimed.

The State Board of Live Stock Commissioners, in placing the quarantine, honestly acted in the interest of the public and are presumed to have acted, intelligently in the premises.

But in the event they had acted carelessly or without cause, in laying the quarantine the State under the doctrina that respondeat superior does not apply, and that the State in the absence of statute is not liable for the torts of its officers, agents or employees.

Henke v. State of Illinois, No. 2 Court of Claims, page 11 and cases therein cited, attorney for claimant insists that this Court under the Act of 1917 is vested with a more comprehensive jurisdiction than the same Court had prior thereto and cites section 6, parapranh 4, which provides:

“To hear and determine all claims and demands, legal and equitable, liquidated, ex contracto ad ex delicto, which the States as a sovereign commonwealth, should in equity and good conscience discharge and pay.”

"Paragraph 4, of section 6 does not in our opinion create any new or additional liabilities against the State; but simply provides a remedy by which claims may be heard and this Court has no power to make an award in any case unless the facts show a legal or equitable claim against the State. Schmitt v. State. 1, Court Claims 76.

In view of the foregoing it is unnecessary for the court to pass upon other questions raised by the State, and the demurer is sustained and claim disallowed and cause dismissed.