author: Per Curiam.

text:
    (No. 74-323
    Unigard Insurance Group, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 18, 1975.

    Van Emden, Busch & Van Emden, Attorneys for Claimant.
    William J. Scott, Attorney General; William J. Karaganis, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause coming to be heard on the Joint Stipulation of the parties hereto, and the Court being fully advised in the premises;

This Court finds that this claim is for damages sustained by Claimant’s subrogee, Silverio Curiel, when his 1971 Ford automobile was stolen by one Rafael Arroyo, a runaway student of the Hanna City State Boys’ School on July 23, 1973. Upon presentation of a claim for said damages by Claimant’s subrogee, Claimant paid to Silverio Curiel the sum of $265.23, as substantiated by the exhibits attached to Claimant’s complaint.

It is hereby ordered that the sum of Two Hundred Sixty-Five and 23/100 Dollars ($265.23) be awarded to Claimant in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause.


source: Caselaw Access Project

author: Burks, J.

license: Public Domain

text:
    (No. 74-548
    Rossi Contractors, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 11, 1975.

    Dent, Hampton & McNeela, by Edward McNeela, Attorneys for Claimant.
    William J. Scott, Attorney General; Leonard Cahnmann, Assistant Attorney General, for Respondent.
   Burks, J.

This claim is brought pursuant to §8(b) of the Court of Claims Act for rescission of a contract bid and for a refund of a bid deposit which accompanied Claimant’s bid for a contract to do certain construction work for the Respondent. The amount claimed is $150,000.00

From a stipulation of facts, the testimony, and other evidence in the record, we restate the undisputed facts as follows:

On August 10, 1973, the Claimant submitted its bid to the Respondent for "Phase 1 Construction of the Busse Woods Reservoir” (Contract #FR-234) in the amount of $2,979,145. With its bid, Claimant submitted a certified check in the amount of $200,000 as a proposal guarantee, as prescribed by the Respondent for bid proposals falling within a range of three to five million dollars. Claimant had intended its bid to be in the sum of $3,455,145. The lower amount actually bid in error ($2,979,145) would have required a lower bid deposit of $150,000.

The Claimant’s schedule of unit prices in the proposal had been completed at its home office in Chicago on August 9th, except for Item 4, "Earth Excavation,” which was completed on August 10th in Springfield after a phone conversation between one of Claimant’s partners, Angelo Rossi, and the Claimant’s main office. This was evidenced by examining the original proposal and noticing that Item 4 is written in a different color of ink than the remainder of the proposal. The Claimant’s main office had relayed a unit cost of $1.28 per cubic yard, but the message was misunderstood and a unit price of $1.08 per cubic yard was erroneously entered in the Claimant’s proposal a short time before the deadline for submitting bids. By reason of said mistake, the Claimant’s proposal was $476,000 lower than intended. (Respondent’s engineer had actually estimated the cost of earth removal at $1.75 per cubic yard.)

Immediately upon discovery of the mistake, on the evening of the same day, and prior to acceptance of the Claimant’s bid by the Respondent, the Claimant sent a telegram to the Respondent informing the Respondent of the facts set forth above and requesting that the Claimant’s bid be revised accordingly or that its bid be withdrawn. Some 28 days later, on September 7, 1973, the Respondent advised the Claimant by letter that the construction contract had been awarded to the Claimant for the sum of $2,979,145.00

Claimant’s bid was approximately $175,000 lower than Respondent’s stated appropriation for this work, was $820,865 below the estimate of Respondent engineer for the same work, and was approximately $800,000 below the next lowest bidder.

We find that Claimant’s bid was so disproportionate to Respondent’s own estimate and the other bids, that Respondent should have known that Claimant’s bid was the result of a mistake, as Claimant had stated in its immediate and timely notice to the Respondent.

A further fact that gave notice of the error to the Respondent was the $200,000 Claimant tendered as a bid deposit guarantee of three million dollars, rather than tendering a check for $150,000, the amount requested by the Respondent for bids in the two to three million dollar range. Respondent has returned $50,000 to the Claimant, the excess in Claimant’s proposal deposit guarantee tendered, and the Respondent has re-let the construction contract to another contractor.

Finally, we take notice that the Department of Transportation has withdrawn its opposition to this claim in a letter dated April 3, 1975, from Langhorne Bond, Secretary of the Department, to Attorney General Scott which reads as follows:

After having reviewed the claim of Rossi Contractors, presently pending in the Illinois Court of Claims, for return of a $150,000 proposal guaranty, I have come to the conclusion that the contentions of the principals of Rossi Contractors, its Chief Engineer and documentary evidence produced in recent discovery proceedings corroborating those contentions no longer warrants continuation of the Department of Transportation’s opposition to this claim.
The contractor in this case has established that its $2.9 million bid, opened on August 10, 1973, was inadvertently computed without inclusion of profit and overhead, resulting in a substantial underbid.
I am, therefore, directing you to stipulate on behalf of the Department of Transportation to the fact that a mistake exists in the computation of the August 10, 1973, bid in order to avoid the additional delay and expense on both sides of a full evidentiary hearing, which is unwarranted by the facts underlying this claim.

This Court ruled in favor of the Claimant in a similar case, Consolidated Engineering Division, et al. v. State, No. 5487 filed April 27, 1971 in which we also cautioned:

The Court is mindful of the fact that public officials should exercise extreme care and caution to avoid abuses of the competitive bidding processes which have come to light in the past. An example would be a case in which a low bidder, after being awarded a contract, discovers that he has made a mistake in his bid and is allowed to raise his price so long as it does not exceed the amount of the next lowest bid. Such a practice would be manifestly unfair to all other bonafide bidders and would open the door to collusion, favoritism and fraud.

Such is not the situation in the case before us. Nor do we find sufficient evidence in the record to support a conclusion that Claimant’s mistake was the result of negligence. The exercise of due care by a bidder is a condition required for rescission as was held in Steinmeyer v. Schroeppel, 226 Ill. 9, 80 N.E. 564. The case at bar can be contrasted with Steinmeyer as the Supreme Court did in Bromagin v. City of Bloomington, 234 Ill. 114, 120:

The appellants place great reliance upon Steinmeyer v. Schroeppel, 226 Ill. 9. This case is distinguished from that in two respects: First, here there seems to have been some reasonable excuse for the error made in calculating the bid; there was no such excuse in the Steinmeyer case. Second, here the party to whom the bid was made knew of the mistake at the time the bid was accepted.

These two older opinions were discussed in a very recent opinion which we find almost identical to the case at bar, Santucci Construction Co. v. County of Cook, 21 Ill.App.3d 527.

In rescinding the bid and awarding a refund of the bid deposit in Santucci, the Court restated the four requirements which must be met for a recission of a contract bid for mistake which were announced and discussed in People ex rel. Department of Public Works and Buildings v. South East National Bank of Chicago, et al., 131 Ill.App.2d 238, 240:

That the mistake must relate to a material feature of the contract;

That it is of such grave consequence that enforcement of the contract would be unconscionable;

That it occurred notwithstanding the exercise of reasonable care; and

That the other party can be placed in status quo.

We find that all four of the above conditions are met by the Claimant in the case at bar. The bidder’s mistake was an understandable human error, and Claimant did everything reasonably possible to correct the error or have its bid withdrawn immediately. Respondent had reason to know that the bid was a grave error even without Claimant’s immediate notice and was not seriously prejudiced by Claimant’s withdrawal of its bid. To enforce the bid proposal guarantee against the Claimant would be unconscionable under these circumstances and would result in the Respondent being unjustly enriched in the amount of $150,000.

It is hereby ordered that Claimant’s bid on the aforesaid contract be and the same is hereby rescinded, and that its bid deposit be returned.

Claimant is hereby awarded the sum of One Hundred Fifty Thousand Dollars ($150,000.00) as a refund of its bid deposit now retained by the Respondent.


author: Holderman, J.

text:
    (No. 74-653
    Dr. J. Peter Maher, Claimant, vs. State of Illinois, Board of Governors of State Universities and Colleges, Respondent.

      Opinion filed May 10, 1976.

    Goldman and Hesser, Attorneys for Claimant.

      William J. Scott, Attorney General; Dunn, Brady, Goebel, Ulbrich, Morel & Jacob, by Frank Brady and Marian S. K. Ming, of Counsel for Respondent.
   Holderman, J.

Claimant was a professor employed at Northeastern Illinois University in the Department of Linguistics. He had been employed at the University since September, 1964.

The Claimant in his complaint alleges that he and the University, through its officers and agents, entered into an employment contract which provided that the Claimant would engage in a full-time summer work program at the University, and he was to be paid the sum of $3,540.00.

Claimant further alleges that part of this contract was written and part was oral.

He alleges that he did not seek other employment for the summer in question and did not accept any other offers of employment for this particular time.

The complaint further states that Claimant was notified on April 20, 1973, that he would not receive the agreed upon compensation but would only receive compensation in the amount of $1,770.00, which was 50% of the original compensation, and this was the amount paid to Claimant for the summer period.

Claimant contends that by reason of the breach of said contract, he is entitled to damages in the amount of $1,770.00.

Claimant further contends that a memorandum from his Department Chairman, Dr. Joseph Beaver, dated January 23, 1973, constituted a contract of employment, or in the alternative there was an "oral understanding” of employment status and salary which created a binding and enforceable contract.

The evidence shows that on April 20, 1973, Claimant was notified that he would not receive the agreed upon compensation. Claimant states that he was informed he would not be paid the additional amount because the legislature did not appropriate the amount of money originally contemplated by the University, and that any demand for further services would not be paid because the payments had lapsed.

It is Respondent’s contention that if a contract was created either by a memorandum dated January 23, 1973, from Dr. Beaver to Dr. Maher, or if there was oral communication between the two, Claimant has the burden of proof.

Claimant was offered a contract to teach for the 1972-1973 academic year, as shown by Respondent’s Exhibit A, which provided for the teaching on a ten-month schedule. It further provided that Dr. Maher was to be compensated at $1,770.00 per month for the period of the contract. The contract did not specify which months of the academic year Dr. Maher was to teach. The contract did, however, expressly state that the ten-month employment need not be consecutive.

At the time the contract was entered into, the University was on a three term system, which was set up in such a way that the Dean of the College planned the May-June months separate and distinct from the other terms. In doing this, the scheduler had to rely on appropriations from the legislature. Respondent states that this fact was common knowledge to all faculty members at Northeastern, including Dr. Maher.

In November of the academic year in question, the question arose in the Department of Linguistics as to which members would be interested in teaching for a full twelve months rather than ten months should there be enough funds appropriated to pay for this. This is verified by Claimant’s own testimony.

At about the same time, the administration and Dr. Maher’s Department Chairman, Dr. Joseph Beaver, made it very clear that not enough money would be available to fund full twelve months’ employment for the full faculty and, therefore, professors were advised to take leave, vacations, etc.

Despite being advised of the contingent nature of employment for a full twelve months’ period, it is Respondent’s contention that Dr. Maher requested he be considered for full employment.

Subsequently, in January of 1973, Dr. Beaver issued a memorandum to Dr. Maher and other faculty members indicating what classes he had each "down for” and advising that the spring schedule would "appear shortly.”

In late March, Dean Hudson advised all department chairmen in the College of Arts and Science, in writing, of the vulnerable areas, and it was brought to the attention of the department chairmen that a discrepancy existed in the amount needed for funding a full teaching schedule and the amount actually available.

Dr. Beaver then contacted Dr. Maher and informed him that there was a development whereby one of the courses to be taught by Dr. Maher would probably be eliminated because of low enrollment, and Dr. Maher was asked to assume one of the courses Dr. Beaver was originally scheduled to teach.

On April 20, 1973, Dean Hudson notified individual faculty members of the specific classes affected by way of a memorandum, and shortly after this memorandum was issued, Dean Hudson directed Dr. Beaver to cancel "Introductory General Linguistics,” the class Dr. Beaver had proposed to transfer to Dr. Maher. Dr. Beaver, however, failed to do so, and Dr. Maher taught the class on May 2nd and May 4th, after which time the class was cancelled.

On June 15, 1973, a written offer of employment consistent with the terms stated by Dean Hudson in April 20, 1973, memorandum was issued to Dr. Maher, who later signed and accepted the document under protest, as shown by Claimant’s Exhibit B.

The question is — was there or was there not a contract made either by the memorandum dated January 23, 1973, from Dr. Beaver to Dr. Maher, or by any oral communication between the two.

It is elementary in a contract that there must be a complete meeting of the minds between the contracting parties. Where the assent is not final or complete and the parties are merely negotiating as to terms of an agreement to be entered into later, there is no meeting of the minds, and thus, no contract. Milani v. Proesel, 15 Ill.2d 423.

The memorandum in question states:

I do not find evidence that I sent each of you the Spring schedule I have you down for. It will probably appear shortly. Meanwhile, here it is. (Emphasis added.)

This would strongly intimate that Dr. Beaver was operating only on what he had recommended or what he had an individual "down for” rather than on any final schedule agreed to by the administration when he issued this memorandum. Dr. Maher, under cross-examination, admitted that he was aware that scheduling was "subject to the availability of funds.”

It appears from the record that Dr. Maher could not have reasonably believed that the January 23rd memorandum constituted a contractual obligation binding both on the instructor and the University. There is not any reference to compensation or other terms and conditions of employment normally included in any contract of employment, nor does it indicate there was a final offer of employment.

As for an "oral understanding,” the record does not show there was any existence of any understanding or agreement as far as a definite contract is concerned.

In addition, both parties recognize the fact that Dr. Beaver had no authority to hire or set salaries, and this fact was admitted by the Claimant who testified that it was the Dean of Faculty who determined such matters.

The conversation relied upon by the Claimant was between Dr. Beaver and Dean Hudson relative to the May-June schedule and a transfer in the teaching schedule from Dr. Beaver to Dr. Maher. These conversations were not directly between Dr. Maher and any member of the University administration having authority to make appointments or set salaries but were merely discussion as to what courses might be offered.

Where a teacher cannot establish that a contract was acceded to by the governing board or its designee having authority to appoint or employ teachers, then no contract is created. Muehle v. School District No. 38, County of Lake and State of Illinois, et al., 344 Ill.App. 385.

It is the opinion of this Court that Claimant has failed to sustain his burden of proof with respect to establishing the existence of a contract of employment by and between the Board of Governors of State Colleges and Universities and Dr. Maher.

Claimant’s prayer for relief is hereby denied, and the complaint herein is dismissed with prejudice.


text:
    (No. 75-72, 83
    Talsma Builders, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 29, 1976.

    Thomas, Wallace, Feehan and Bazon, Ltd., Attorneys for Claimant.
    William J. Scott, Attorney General; Richard J. Grossman, Assistant Attorney General, of Counsel, for Respondent.
   Per Curiam.

These claims were instituted by Claimant for damages for Respondent’s breach of a contract for the construction of Joliet Junior College, Joliet, Illinois. Case No. 75-CC-72 is predicated upon alleged misrepresentation by Respondent of the character of the subsoil at the building site, and Case No. 75-CC-83 is predicated upon damages allegedly suffered by Claimant as a result of delays on the part of Respondent in issuing corrected designs and specifications following the discovery of the true nature of the subsoil. After a pretrial hearing conducted by the commissioner to whom the cases were assigned, Respondent conceded the merits of Case No. 75-CC-72 and entered into a written stipulation of facts relative thereto. The parties waived the filing of briefs and the undisputed facts are as follows:

On May 8, 1972, Talsma Builders, Inc., of Alsip, Illinois, entered into a contract with the Illinois Building Authority for the general construction work on the construction of the Joliet Junior College, Joliet, Illinois, phase IB. By letter from the Illinois Building Authority, dated June 23, 1972, Claimant was notified to commence work on June 28,1972. Bids for the contract were opened on March 30, 1972, preceding, and by June 28, 1972, Claimant had already complained to the Illinois Building Authority and to Caudill, Rowlett and Scott (project architects) because of the lengthy delay between the opening of the bids, the awarding of the contract, and the notice to commence work. The gist of Claimant’s complaint was that its bid, being $250,000.00 lower than the second lowest bid, was a very tight figure and was conditioned upon there being no delays in getting started on the job and getting it done.

Immediately upon being notified to commence work, Claimant cleared the site and started to excavate. Subsurface rock was encountered July 10, 1972. This rock was not revealed by the topographical material furnished by the architect for use by Claimant in preparing its bid, nor had the architect considered this rock in preparing his plans and drawings. Immediately thereafter representatives of the architect came to the site from Texas to consider the problem. Because of the rock it was necessary for the architect to redesign grading plans, retaining walls, footings, sidewalks, a parking lot, a courtyard area, and to eliminate all storm sewers. Although the rock was encountered early in July, 1972, the architect did not complete redesign of the project until the middle of August, 1972, and Claimant was not instructed to proceed with the extra excavation and the revised construction until approximately August 24, 1972, thus being subjected to obvious delays through no fault of its own.

In the meantime, by PA 77-1995, effective July 10, 1972, the Illinois Legislature had created the Capital Development Board. Pursuant to the provisions of this statute, on September 22, 1972, the Illinois Building Authority assigned Claimant’s contract to the Capital Development Board, and the latter body took over the contract and the project.

Upon taking over the project, the Capital Development Board conducted its own investigation of the problems that had resulted from the sub-surface rock, and paragraph 4 of the joint stipulation entered into between Claimant, the Capital Development Board, and the Attorney General of Illinois, is as follows:

4. That as a result of further investigation by the Capital Development Board it was determined that the extra rock removal work was necessitated by the negligence of the architectural firm of Caudill, Rowlett and Scott in its erroneous testing of sub-surface conditions and preparation of the drawings and specifications for phase IB of the Joliet Junior College project.

This Court on various occasions in the past has awarded damages to Claimants injured by breach of construction contracts, where Respondent’s breach has consisted of unreasonable delays, changes of design, and misrepresentation of topographical conditions, resulting in increased costs to the contractor.

In J. L. Simmons Company, Inc. v. State of Illinois, 21 Ill.Ct.Cl. 503, the Court awarded damages to the contractor-Claimant where the architectural drawings and test borings did not show the true character of the subsoil. In Simmons, this Court discusses an older Court of Claims case, Arcole Construction Company v. State, 11 Ill.Ct.Cl. 423 as follows:

Claimant, Arcole Construction Company, was awarded a contract to repave Roosevelt Avenue in the City of Chicago. Plans and specifications were prepared by the State, and through oversight no reference was made to that portion of the road bed containing abandoned street rail ties, which were imbedded in concrete, and not visible through ordinary examination. The contractor was unable to remove this portion of the highway with power shovels, but had to resort to air hammers to chip it out. The extra expense amounted to $24,944.85, and a claim was made for this amount. The Court ruled that where plans and specifications are prepared by the owner, and there is a material misrepresentation therein, and as a result of such misrepreservation, the contractor is misled to his damage, he is entitled to recover the damages so sustained. An award of $23,092.09 was granted.

After considering the stipulation of the parties and the other evidence before the Court, it is the finding of the Court in the instant case that the plans and specifications and topographical information prepared by Respondent’s architects contained a material misrepresentation as to the nature of the subsoil at the project site, and that as a result of such misrepresentation the Claimant was misled to his damage.

The measure of Claimant’s damages and the amount is not in question. As set forth in the Departmental Report heretofore filed herein by Respondent:

Capital Development Board staff have worked with the Architect and Contractor to review the proposals for additional work. Unit prices have never been in question as they were included in the original bidding proposal. Quantities were verified by the Construction Testing Firm, Raamot and O’Brien. Capital Development Board staff concur with' the excess amount of rock removed by blasting, ramhoe, hand, and jackhammer procedures .... It is therefore, recommended by the Capital Development Board staff that this claim in the amount of $107,869.00 be approved.

Claimant’s cost increases are itemized in Exhibit D attached to the complaint filed in case No. 75-CC-72. They total $121,732.00, less credits to the State in the amount of $13,863.00, resulting in a net claim of $107,869.00 It is hereby ordered that the sum of One Hundred Seven Thousand Eight Hundred and Sixty-Nine Dollars ($107,869.00) be awarded to Claimant under case number 75-CC-72 in full satisfaction of any and all claims presented to the State of Illinois under case numbers 75-CC-72 and 75-CC-83 and that case number 75-CC-83 is hereby dismissed with prejudice.


text:
    (No. 75-224
    Pete Van Thurnout, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 15, 1975.

    Pete Van Thurnout, Pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause coming to be heard on the Joint Stipulation of the parties hereto, and the Court being fully advised in the premises;

This Court finds that this claim is for damages sustained by the Claimant to his motor vehicle, when said vehicle was stolen by an escapee from the Illinois Youth Center, St. Charles, Illinois. The vehicle in question was stolen by student Cedric Webb on June 2,1974, and later recovered by police in Hometown, Illinois. Damages to Claimant’s vehicle have been estimated at $52.54, as substantiated by exhibits attached to Claimant’s complaint.

It is hereby ordered that the sum of Fifty-Two and 54/100 Dollars ($52.54) be awarded to Claimant in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause.


text:
    (No. 75-319
    Hilfinger, Asbury, Cufaude & Abels, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 14, 1976.

    Hilfinger, Asbury, Cufaude & Abels, Pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause is before this Court on the Joint Stipulation of the parties. The stipulation is set forth below and we adopt the factual matter set forth therein.

STIPULATION

Now comes Hilfinger, Asbury, Cufaude and Abels, formerly Lundeen, Hilfinger and Asbury, a partnership, Claimant in the above entitled cause by Pratt, Larkin & Williams, its attorneys, Board of Governors of State Colleges and Universities, Respondent in the above entitled cause by Dunn, Brady, Goebel, Ulbrich, Morel and Jacob, its attorneys, and the State of Illinois by William J. Scott, Attorney General of the State of Illinois, and hereby stipulate the following:

1. That the claim of Claimant herein is a contract claim and recovery is sought under the provisions of sub-section B of Section 8 of the Court of Claims Act.

2. That Claimant’s cause of action is supported by the following facts:

A. That Claimant was at all times herein mentioned, and is now, a partnership engaged in the practice of architecture with offices in Bloomington, Illinois.

B. That the Board of Governors of State Colleges and Universities, hereinafter referred to as Board of Governors, original Respondent herein, was, at all times herein mentioned, and is now a body corporate and politic responsible for the management, operation, control and maintenance of the State College and University System of the State of Illinois.

C. That Eastern Illinois University, Charleston, Illinois, was at all times herein mentioned, and is now, one of the State Colleges and Universities under the jurisdiction of said Board of Governors.

D. That the Illinois Building Authority was created by the Illinois General Assembly by an Act approved August 15, 1961, the provisions of said Act as amended being set forth in Sections 213.1 through 214 of Chapter 127 of the Illinois Revised Statutes of 1971 State Bar Association Edition.

E. That by an Act of the Legislature, designated Public Act 72-723 approved August 8, 1969, a certain building project, hereafter referred to herein as The Project at said Eastern Illinois University entitled "Construction of Life Science Building - Phase III” in the amount of $3,354,172.00 was declared to be in the public interest, a true and correct copy of said Act being attached to Claimant’s complaint as Exhibit A and by reference is made a part hereof.

F. That on or about the 6th day of October, 1969, Board of Governors employed Claimant, in writing, to perform architectural services in connection with the construction of The Project, a true and correct copy of the Agreement between Board of Governors and Claimant, being attached to Claimant’s complaint as Exhibit B and is by reference made a part hereof.

G. That in accordance with the Agreement between Claimant and Board of Governors, Claimant did perform architectural services in connection with The Project, to the extent that at least 74% of the basic services for which provision is made in Article 1 of said Agreement between Claimant and Board of Governors, being attached to Claimant’s complaint as Exhibit B and by reference is made a part hereof, were completed by Claimant.

H. That in order to enable the Illinois Building Authority to provide The Project, the Agreement between Claimant and Board of Governors, was subsequently assigned to the Illinois Building Authority by Board of Governors, a true and correct copy of said assignment being attached to Claimant’s complaint as Exhibit C and by reference made a part hereof.

I. That pursuant to an appropriation made by the Illinois General Assembly, Board of Governors did, on or about the 27th day of October, 1970, remit to the Illinois Building Authority, among other amounts the sum of $160,080.00, as rental on The Project in order to provide funds for construction, including payment of fees due Claimant for architectural services, a true and correct copy of the invoice voucher evidencing said payment being attached to Claimant’s complaint as Exhibit D and by reference made a part hereof.

J. That on or about May 2, 1971, the executive officer of the Board of Higher Education of the State of Illinois made certain recommendations to that Board that the construction of The Project, along with certain other projects mentioned therein be deferred. The Project is referred to in category C of said recommendation, a true and correct copy of said recommendation is attached to Claimant’s complaint marked Exhibit E and by reference made a part hereof.

K. That pursuant to the recommendation of said executive officer the Board of Higher Education of the State of Illinois did, at its meeting on May 2, 1972, pass a resolution approving the recommendation of the executive officer above referred to (Exhibit E) the effect of which was to cancel or abandon construction of The Project. A true and correct copy of the pertinent part of the minutes of said meeting is attached to Claimant’s complaint marked Exhibit F and by reference made a part hereof.

L. That by an Act of the Legislature, effective October 1, 1973, there was created a Capital Development Board of the State of Illinois and the statutory provisions pertaining to same are found in Sections 771 through 792 of Chapter 127 of the Illinois Revised Statutes of 1973 State Bar Association Edition.

M. That among other things, said Capital Development Board was required by Section 781 of said Statute to establish a schedule for the transfer of projects previously authorized by the General Assembly for construction by the Illinois Building Authority but not bonded by the Illinois Building Authority at the time the Development Board Act became effective, including assignment of construction contracts and other related contracts.

The Act further provides in Section 779.07 that said Capital Development Board was authorized to accept assignments of contracts entered into by other State Agencies for construction services on projects over which the Capital Development Board shall have jurisdiction.

N. That The Project was among those referred to in said Statute which were previously authorized by the General Assembly for construction by the Illinois Building Authority but not bonded by the Illinois Building Authority as of the effective date of the Act.

O. That the schedule of projects for transfer from the Illinois Building Authority to the Capital Development Board was prepared, a true and correct copy of same is attached to Claimant’s complaint marked Exhibit G and by reference made a part hereof.

P. That construction of The Project having been abandoned by the determination of the Illinois Board of Higher Education on or about May 2, 1972, The Project was not included among those scheduled for transfer from the Illinois Building Authority to the Capital Development Board, and likewise the contract with Claimant for performance of architectural services was not assigned by the Illinois Building Authority to the Capital Development Board.

Q. That the $160,080.00 appropriation above referred to was the only sum of money ever paid over to the Illinois Building Authority in connection with The Project, and that sum together with interest earned thereon was intended to be used by the Illinois Building Authority for the payment of expenses in connection with The Project, including fees due Claimant.

R. That on or about the 8th day of September, 1972, before Claimant submitted a statement to Board of Governors, the invoice voucher of the Illinois Building Authority was mailed to the Board of Governors by the Illinois Building Authority, which said voucher was in the amount $167,524.73, which included the $160,080.00 rental payment received plus $11,733.20 investment income less administrative expense of $4,288.47, a true and correct copy of the Illinois Building Authority letter of transmittal dated September 8, 1972, and the invoice referred to therein being attached to Claimant’s complaint, marked Exhibits H and I respectively, and made a part hereof.

S. That Warrant No. AA3043433 dated September 12, 1972, in the amount of $167,524.73 payable to Board of Governors representing a refund of said appropriated funds previously disbursed as prepaid rentals plus investment income, less administrative expense as referred to above was forwarded to the Auditor of Public Accounts of the State of Illinois by Board of Governors for deposit in the General Revenue Fund of the State of Illinois, a true and correct copy of the letter of transmittal being attached to Claimant’^ complaint, marked Exhibit J and by reference made a part hereof. That before Claimant submitted a statement to Board of Governors, said sum of money was in fact redeposited in the General Revenue Fund of the State of Illinois.

T. That there is due and owing to Claimant herein in behalf of architectural services rendered pursuant to said contract, the sum of $135,507.00, and itemized statement showing the basis of said claim being attached to Claimant’s complaint, marked Exhibit K and by reference made a part hereof.

U. That Claimant did, on or about the 19th day of December, 1973, send said itemized statement along with certificate voucher, to Eastern Illinois University, Charleston, Illinois, requesting payment of said sum of $135,507.00 due Claimant, a true and correct copy of said certificate voucher being attached to Claimant’s complaint marked Exhibit L and by reference made a part hereof.

V. That said itemized statement and certificate voucher were subsequently presented to the Illinois Building Authority and to Board of Governors, and that Claimant has been notified in each instance by Eastern Illinois University, the Board of Governors of State Colleges and Universities, and by the Illinois Building Authority that its claim for money due in behalf of services rendered pursuant to its contract with Board of Governors cannot be paid by reason of the fact that appropriated funds disbursed as rentals and previously available for payment to Claimant had been redeposited in the General Revenue Fund of the State of Illinois and were no longer available for payment of said claim.

W. That allowance of Claimant’s claim will have the same practical effect as the allowance of a claim based upon a lapsed appropriation in that the original appropriated sum reposes in the State Treasury and payments will be made from the State Treasury.

X. That Claimant has exhausted all remedies available to it, and Claimant is without remedy in the premises except by way of proceedings in this Court.

3. That Claimant’s claim has been presented to Eastern Illinois University, Charleston, Illinois, the Board of Governors of State Colleges and Universities and the Illinois Building Authority commencing on or about December 19, 1973. Payment in each instance has been declined essentially on the basis that there are no funds appropriated for payment of same, funds previously appropriated for this purpose having been redeposited in the General Revenue Fund of the State of Illinois as stipulated between the parties in paragraph 2 of this Stipulation.

4. That Claimant, Hilfinger, Asbury, Cufaude and Abels, a partnership, formerly Lundeen, Hilfinger and Asbury, a partnership, is the sole owner of the claim, and no other person, firm or corporation has any interest therein, and said Claimant became interested from and after the 6th day of October, 1969, the date the employment contract was entered into between Claimant and Board of Governors as referred to in Paragraph 2 of this Stipulation.

5. That no assignment or transfer of the claim or any part thereof or interest therein has been made.

6. That Claimant is justly entitled to the amount herein claimed after allowing all just credits.

7. That neither this claim or any claim arising out of the same occurrence or transaction has been previously presented to any person or corporation or tribunal other than the State of Illinois.

8. That an itemization or bill of particulars stating in detail the amount claimed is attached to the complaint as Exhibit K and by reference is made part hereof.

9. That the claim, the subject matter of this proceeding being against the Treasurer of the State of Illinois and not against the Board of Governors, the proper party to represent the State of Illinois herein is the Office of the Attorney General.

10. That the Court award to the Claimant herein the sum of $135,507.00.

Inasmuch as the facts set forth in the departmental report and the stipulation of the parties support an award of the amount claimed, this Court so finds and Claimant is hereby awarded the sum of One Hundred Thirty-Five Thousand Five Hundred Seven Dollars ($135,507.00).


text:
    (No. 75-406, Consolidated No. 75-CC-406 $5,773.68 No. 75-CC-529 4,662.82 No. 75-CC-623 1,665.00 No. 75-CC-652 424.50 No. 75-CC-653 943.79 No. 75-CC-745 91.50 No. 75-CC-756 175.90
    Don E. Beane, Jr. and Maninfior Court Reporting Service, and C. Don Weston and Charles J. Kolker and Barbara Creath and Richard E. Shinn and Gary J. Maninfior Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 6, 1976.

   Per Curiam.

The Claimants and the office of the Attorney General have asked the Court to rule on this case on the basis of a joint stipulation of facts, the departmental reports and a memorandum of law which by agreement of the parties, has set forth the applicable law and states the issues as the parties see them. The Claimants in this suit are either licensed attorneys who have rendered services to the Fair Employment Practices Commission as hearing officers or they are court reporters who have rendered services in the taking of the transcript of the hearings conducted by the hearing officers. The Fair Employment Practices Commission was unable to pay these claims because the appropriations made by the legislature were inadequate. The original appropriation was expended with the exception of $24.28 remaining after which a deficiency appropriation was passed and utilized leaving a balance of $11.53. The department recognizes the validity of these claims other than the fact that there was insufficient appropriations.

Although the Constitution of 1870 has now been superceded, and the expenses for which these Claimants seek reimbursement were incurred following the effective date of the Constitution of 1970, the comments in the various opinions relating to Article IV, Sec. 19 of the Constitution of 1870 are still pertinent in view of the essential similarity with Ill.Rev.Stat., Ch. 127, 166, which is still in full force and effect. Both forbid spending or binding of the State to debts in excess of money appropriated, unless expressly authorized by law.

The General Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made, or authorize the payment of any claim, or part thereof, hereafter created against the State under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void; provided, the General Assembly may make appropriations for expenditures incurred in suppressing insurrection or repelling invasion. (Art. IV, Sec. 19, Constitution of Illinois 1870)
No officer, institution, department, board, or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law. Ill.Rev.Stat., Ch. 127, 166.

The essential similarity of these two provisions is the use of the term "express authority of law” used in the Constitution of 1870 and the term "expressly authorized by law” as used in the statute. These terms raise the issue as to what type of an expenditure is expressly authorized by law.

The leading cases would appear to be Fergus v. Brady, 277 Ill. 272; Board of School Inspectors of the City of Peoria, a corporation v. State of Illinois, 12 Ill.Ct.Cl. 17; and Schutte and Koerting Co., Corporation, etc. v. State of Illinois, 22 Ill.Ct.Cl. 591.

For the purposes of this discussion it is not necessary to elaborate on the background of the Fergus decision, but it would be pertinent to quote from the decision beginning on page 279:

In Sec. 19, claims under an agreement or contract made by express authority of law are excepted, and if there is some particular and specific thing which an officer, board or agency of the State is required to do, the performance of the duty is expressly authorized by law. That authority is express which confers power to do a particular, identical thing set forth and declared exactly, plainly and directly, with well defined limits, and the only exception under which a contract exceeding the amount appropriated for the purpose may be valid is where it is so expressly authorized by law. An express authority is one given in direct terms, definitely and explicitly, and not left to inference or to implication, as distinguished from authority which is general, implied or not directly stated or given. An example of such express authority is found in one of the deficiency appropriations to the Southern Illinois Penitentiary which had been paid, and serves only as an illustration. The authorities in control of the penitentiary are required by law to receive, feed, clothe and guard prisoners convicted of crime and placed in their care, involving the expenditure of money which may vary on account of the cost of clothing, food and labor beyond the control of the authorities, and which could not be accurately estimated in advance for that reason or by determining the exact number of inmates.

The Board of School Inspectors case involved a suit by the City of Peoria for reimbursement of expenses incurred in the education of crippled children. The education of these children was apparently induced by the passage of a statute by the Illinois Legislature which provided for reimbursement of the expenses incurred by school districts or others in the education of these children. The Legislature in passing the statute provided for $100,000 to defray this expense. The response was so overwhelming that the expenses of the various school districts far exceeded the $100,000. The Director of the Department of Public Welfare who was charged with the responsibility for the administration of this program prorated the claims and authorized the payment to each Claimant on a prorated basis. The claim of the City of Peoria was for the excess over and above their prorated share. The Court of Claims in that case held that the proration was an equitable approach and that the City of Peoria had no claim to any further reimbursement as the expenditure was one not expressly authorized by law in accordance with the definitions set forth in Fergus v. Brady. The Court distinguished Fergus v. Brady from Board of School Inspectors by pointing out that in the illustration set forth in Fergus v. Brady, the authorities in charge of Southern Illinois Penitentiary had a duty imposed by law to take care of all prisoners sent to their institutions whereas in Board of School Inspectors it was not compulsory that the counties provide the education for these crippled children. The Court points out that as a matter of fact many school districts throughout the State did not choose to participate. The claim of the Board of School Inspectors of the City of Peoria was therefore denied.

In Schutte and Koerting Co., a corporation, etc. v. State of Illinois, we have a case where the Legislature set up the Illinois Coal Products Commission, a temporary non-departmental legislative commission for purposes of constructing and maintaining an experimental pilot plant to develop techniques for the profitable utilization of the low grade coal found in Illinois. The Commission was originally created in 1943, at which time a total of $35,000 was appropriated. In each of the years 1945, 1947, 1949 and 1951, the Commission was recreated by an identical act of the General Assembly, and in each act a certain specified sum was appropriated for the identical purposes expressed in the 1943 act. Schutte v. State was filed as a result of the fact that contracts were entered into between the Coal Products Commission and certain suppliers with said contracts being in excess of the $100,000 appropriated for the 1949 through 1951 biennium.

In Schutte v. State the Court states beginning on page 603:

With respect to this question, it is fundamental that all governmental agencies, departments and commissions are strictly circumscribed in their powers and authorities by the constitution and statutes of the State of Illinois.
Chapter 127, §166 of the Illinois Revised Statutes, (1955 State Bar Association Edition) provides as follows: §166 Indebtedness exceeding appropriation prohibited. No officers, institution, department, board of commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law. 1919, June 10, Laws 1919 p. 946, §30.

This Court then follows by quoting from Fergus v. Brady, pp.279 and 280 wherein they once again discuss what is meant by express authority of law and cite the example given with reference to Southern Illinois Penitentiary.

However, in Schutte v. State rather than to deny all claims outright, this Court took one step beyond their holding in Board of School Inspectors of the City of Peoria v. State and held that where sufficient funds were available at the time the contract was entered into, the Court would honor the contract even though the contract was not paid before the funds available were totally expended.

The Court went on in the Schutte case to hold that any contract entered into, after the appropriation had become totally obligated, would be denied.

It is important in applying the principle set out in Schutte to distinguish between the balance of the appropriation left unobligated and the balance of the appropriation actually remaining on hand. To allow a claim, simply because the amount actually being held on the date the obligation is incurred equals or exceeds the obligation, would lead to overspending by the agency and deficiency appropriating by the Court.

On the other hand, to carefully grant awards on the basis of the amount unobligated on the date the debt is incurred could result in a more equitable distribution of the funds appropriated and hopefully, responsible spending controls on the part of the agencies.

It is inherent in the administration of State government that expenditures should not exceed appropriations previously made with the possible exception set forth in the case of Fergus v. Brady where the expenditure is strictly prescribed and the spending agency is compelled by circumstances and law to obligate the State.

Without strict and well enforced guidelines, the spending of State officials could become rampant.

The drafters of the Constitution of 1970 were fully cognizant of this situation when they drafted Article VIII, Sec. 1. They provided two requisites for spending of public funds: it must be for a "public purpose” and it must be "only as authorized by law”:

Section 1. General Provisions (a) Public funds, property or credit shall be used only for public purposes.
(b) The State, units of local government and school districts shall incur obligations for payment or make payments from public funds only as authorized by law or ordinance.

We find here a similarity of the concepts that obligations must be made only with "express authority of law” (Constitution of 1870) or "only as authorized by law” (Constitution of 1970).

The basic concept of the obligation having to be authorized by law remains, but the question arises as to the significance, if any, of the fact that the drafters failed to utilize the word "express” or "expressly” in conjunction with the phrase "only as authorized by law.”

Did this indicate an intent that the restrictions on obligating or spending public funds be less stringent? Was this simply an attempt to delegate a wider latitude of discretion to the General Assembly? Or was it neither, but simply an example of the elimination of superfluous verbage?

The determination of this question seems academic in view of the fact that the law on the books today remains as it was in 1967 and 1968, Ill.Rev.Stat. Ch. 127, $166, and retains the "restrictive” phrase "expressly authorized by law.”

The question then is, were the expenditures in question here, namely the F.E.P.C.’s expenses involved in providing hearings and records thereof to the complainants, expenditures absolutely (expressly) required by law? Was the obligation under the Constitution of 1970 and the Fair Employment Practices Act analogous to the situation where the prison officials had no choice but to feed, clothe and house the prisoners assigned to their care?

We believe that they were. We, therefore, make the following awards:

DON E. BEANE........................$5,773.68

MANINFIOR COURT REPORTING SERVICE .............................4,662.82

C. DON WESTON ...................... 1,665.00

CHARLES J. KOLKER...................424.50

BARBARA CREATE ..................... 943.79

RICHARD E. SHINN ......................91.50

GARY J. MANINFIOR....................175.90


text:
    (No. 75-535
    James Bracken, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 14, 1976.

    Stephen M. Cooper, Attorney for Claimant.
    William J. Scott, Attorney General; William J. Karaganis, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause coming on to be heard on the Joint Stipulation of the parties hereto, and the Court being fully advised in the premises;

This Court finds that this claim is for damages sustained by the Claimant to his motor vehicle, when said vehicle was stolen by escapees from the Illinois Youth Center, St. Charles, Illinois. The vehicle in question was stolen by students Michael Fain, Vincent Par-row, Rodney Moore, and Michael Bell on August 12, 1974. Damages to Claimant’s vehicle have been estimated at $74.21, as substantiated by exhibits attached to Claimant’s complaint.

It is hereby ordered that the sum of Seventy-Four and 21/100 Dollars ($74.21) be awarded to Claimant in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause.


text:
    (No. 75-580
    Lola M. Turner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 8, 1976.

    Lola M. Turner, Pro se.
    William J. Scott, Attorney General; Richard J. Grossman, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause coming on to be heard on the Joint Stipulation of the parties hereto, and the Court being fully advised in the premises;

This Court finds that this claim is for damages sustained by the Claimant to her motor vehicle, when said vehicle was damaged by escapees from the Illinois Youth Center, St. Charles, Illinois, pursuant to Ill.Rev.Stat., Ch. 23, §4041. The vehicle in question was damaged by students George Grigsby and Marvin Therrell on October 26, 1974. Damages to Claimant’s vehicle have been estimated at $51.41 as substantiated by exhibits attached to Claimant’s complaint.

It is hereby ordered that the sum of Fifty-one And 41/100 Dollars ($51.41) be awarded to Claimant in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause.


text:
    (No. 75-601
    Joyce Laursen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 10, 1976.

    Stephen M. Cooper, Attorney for Claimant.

      William J. Scott, Attorney General; Richard J. Grossman, Court of Claims Division, for Respondent.
   Per Curiam.

The record in this cause indicates that Claimant’s complaint sounds in tort and alleges negligent conduct of the State of Illinois Department of Corrections in allowing two students to escape from an institution under the control of such department and their subsequent theft and destruction of a vehicle owned by Claimant, which is the substance and subject matter of her complaint; and

That the parties to this action entered into a Joint Stipulation based upon information forwarded to the Office of the Attorney General by said Department of Corrections as evidenced by the Departmental Report attached to the Joint Stipulation.

Accordingly, this Court finds that there now exists no question of fact to be determined by this Court and that Claimant’s claim is compensable pursuant to Ill.Rev.Stat., Ch. 23, M§-41, entitled "Damages Caused by Escaped Inmates of State Controlled Institutions.”

It is hereby ordered that the Claimant be awarded in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause the sum of Two Hundred Fifty Dollars ($250.00).


author: Perlin, C. J.

text:
    (No. 75-762
    William D. Reinwein, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 4, 1975.

      William D. Reinwein, Pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, a physician, has brought this action to recover the sum of $5,518.50 for medical and surgical services rendered to numerous inmates and employees of East Moline State Hospital between November, 1965, and June, 1972.

Respondent has filed a motion for summary judgment, to which Claimant has not responded, alleging that certain of the claims are barred by the two year statute of limitations embodied in Section 22 of the Court of Claims Act, Ill.Rev.Stat., Ch. 37, §439.22; that others are barred by Rule 5D(3) of the Court of Claims; and that others are unfounded because the recipients of the medical services were not patients under the jurisdiction of the Department of Mental Health.

On consideration of the complaint herein and Respondent’s motion for summary judgment, the Court finds:

1. That this action was filed on January 10, 1975, and that Claimant’s claim for services rendered to the following individuals are forever barred by the statute of limitations by reason that the services were performed prior to January 10, 1973:

Matilda Dundy $300.00
Clarence Anderson 675.00
Carol Olson 230.00
Harold Brown 300.00
Charles Musch 350.00
Ruth Alberta Welte 375.00
Minnie Dykstra 375.00
June Lisenbee 15.00
Eva German 300.00
James E. McIntosh 10.00
Hulde S. Terrell 10.00
Margie A. Wright 15.00
John Wise 17.50
Margaretta Light 10.00
Margaret Carr 10.00
Total $2,992.50

2. That the claims for services allegedly performed by Claimant for John R. Stotts in the amount of $10, and Margaret Murphy in the amount of $30, are not properly brought in this action inasmuch as the individuals are not Department of Mental Health recipients. To include these claims, as to which the Department of Mental Health cannot provide a departmental report, would be violative of Rule 5D(3) of the Court of Claims, which prohibits claims against more than one department being filed in the same action.

3. That the claim for services allegedly performed by Claimant for James McCarthy has been paid.

4. That the following claims for services are not challenged by the Respondent and are in fact acknowledged as due and owing by the Department of Mental Health:

James Jenkins $567.00
Ignatus Kowalczyk 100.00
Audrey Monroe 300.00
Rick Girton 221.00
Glen Sanders 300.00
Curtis Miller 300.00
Elsie H. Melville 375.00
Alice Frank 350.00
Pearl Hunter 240.00

for a total due and owing of $2,753.00.

Wherefore, this Court orders that the following enumerated claims totaling $2,992.50 are forever barred:

Matilda Dundy $300.00
Clarence Anderson 675.00
Carol Olson 230.00
Harold Brown 300.00
Charles Musch 350.00
Ruth Alberta Welte 375.00
Minnie Dykstra 375.00
June Lisenbee 15.00
Eva German 300.00
James E. McIntosh 10.00
Hulde S. Terrell 10.00
Margie A. Wright 15.00
John Wise 17.50
Margaretta Light 10.00
Margaret Carr 10.00

It is further ordered that the claims for the services rendered to John R. Stotts, Margaret Murphy, and James McCarthy are hereby dismissed.

It is further ordered that Claimant be, and hereby is, awarded the sum of Two Thousand Seven Hundred Fifty-Three Dollars ($2,753.00) for medical services rendered to the following individuals:

James Jenkins $567.00
Ignatus Kowalczyk 100.00
Audrey Monroe 300.00
Rick Girton 221.00
Glen Sanders 300.00
Curtis Miller 300.00
Elsie H. Melville 375.00
Alice Frank 350.00
Pearl Hunter 240.00


text:
    (No. 75-774
    Michael L. Mory and Richard Collignon, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 22, 1975.

   Perlin, C. J.

This cause coming on to be heard on the Joint Stipulation and Motion of the parties, and the Court being fully advised in the premises, hereby amend our previous order and find that Richard Collignon is entitled to an award which may be paid out of the Illinois Court of Claims Fund.

It is therefore hereby ordered that Richard Collignon, by virtue of the assignment of rights by the Claimant herein, as contained in the Joint Stipulation of the parties, be awarded the sum of Eighty-Five And 41/100 Dollars ($85.41).


text:
    (No. 75-827
    Larry R. Einsiedel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 24, 1975.

    Larry R. Einsiedel, Pro se.
    William J. Scott, Attorney General; William J. Karaganis, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause coming on to be heard on the Joint Stipulation of the parties hereto, and the Court being fully advised in the premises;

This Court finds that this claim is for damages sustained by the Claimant to his motor vehicle when said vehicle was stolen by three escapees from the Illinois Youth Center, St. Charles, Illinois. The vehicle in question was stolen by students Joseph Donelson, Robert Thanos and Eugene Stamps and was later recovered by the police in St. Charles, Illinois. Damages to Claimant’s vehicle have been estimated at $85.00, as substantiated by exhibits attached to Claimant’s complaint.

It is hereby ordered that the sum of Eighty-Five Dollars ($85.00) be awarded to Claimant in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause.


text:
    (No. 75-915
    National Ben Franklin Insurance Company as Subrogee, Etc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 14, 1975.

    National Ben Franklin Insurance Company as Subrogee of Catherine Milos, Pro se.
    William J. Scott, Attorney General; William J. Karaganis, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause coming to be heard on the Joint Stipulation of the parties hereto, and the Court being fully advised in the premises;

This Court finds that this claim seeks return of a security deposit (bond money) in the amount of $300.00 deposited with the Secretary of State pursuant to Ill.Rev.Stat., Ch. 95/2, §7-324. That Claimant’s insured has been paid a sum total in excess of the aforementioned $300.00 amount, and that Claimant is thereupon entitled to recovery of the $300.00 security bond to be applied and deducted from the proceeds of the unsatisfied judgment of Claimant’s insured against one Ali Jalayer (uninsured motorist).

It is hereby ordered that the sum of Three Hundred Dollars ($300.00) be awarded to Claimant in full satisfaction of any and all claims presented to the State of Illinois arising out of the above captioned cause.


text:
    (No. 75-958
    Edward S. Fusek, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 23, 1975.

   Holderman, J.

Claimant seeks payment in the amount of $998.30 for legal services he rendered the Illinois Liquor Control Commission in filing an appeal from a judgment rendered against the Liquor‘Commission by the Circuit Court. The Liquor Commission had instituted proceedings pro se against the City of Joliet and the Mayor of Joliet. The City of Joliet had adopted an ordinance prohibiting the sale or delivery of alcoholic beverages to persons 19 and 20 years old. The Commission contended that the City Ordinance contravened the State statute which permits the sale and gift of beer and wine by license holders to persons 19 and 20. It was argued that the City Ordinance was invalid. The trial court ruled in favor of the City of Joliet and the Liquor Commission appealed to the Appellate Court.

The Liquor Commission was not represented by the Attorney General, either at the trial in the Circuit Court or on the appeal. On appeal, the Attorney General filed a petition seeking leave to intervene and asking that the appeal be dismissed. The motion to intervene was denied, and the Appellate Court heard the appeal on its merits and ruled in favor of the City of Joliet.

Claimant here rendered various services on behalf of the Commission in perfecting the appeal.

In its motion to dismiss, the State takes the position that the Liquor Commission, as an agency of the State, shall incur obligations for payment from public funds only as authorized by law, and that the statute defining the powers of the Illinois Liquor Control Commission (Ill.Rev.Stat., Ch. 43, §97) does not authorize an officer of the Commission to engage legal counsel other than the Attorney General. The Attorney General cites Dunlop v. State of Illinois, 3 Ill.Ct.Cl. 107, and quotes therefrom:

The Attorney General is the law officer of the State and the State cannot incur an expense for attorney’s fees without his special order.

The case of Fergus v. Russell, 270 Ill. 304 was further cited.

The Attorney General intimates that Claimant may have a cause of action against those who employed him.

In answer to this, the Claimant points out that this issue was raised in the petition to intervene filed by the Attorney General in the City of Joliet case.

The Court has examined the brief in support of the petition for intervention filed by the Attorney General in the City of Joliet case, and it is true that the matters were set forth in that petition and the position taken was identical with the State’s position before this Court.

We hold, however, that the Appellate Court’s denial of the motion to intervene was not a finding that the Liquor Control Commission was authorized to hire private attorneys.

Had the Appellate Court intended to sanction the employment of private attorneys to handle litigation for State agencies, it surely would have so stated in its order of May 8, 1974, and announced that it was reversing a long line of cases following Fergus v. Russell, 270 Ill. 304 in which the Supreme Court said at page 342:

The Attorney General is the chief law officer of the State, and the only officer empowered to represent the people in any suit or proceeding in which the State is the real party in interest, except where the constitution or a constitutional statute may provide otherwise. With this exception, only, he is the sole official adviser of the executive officers and of all boards, commissions and departments of the State government, and it is his duty to conduct the law business of the State, both in and out of the courts.

Claimant cites no law authorizing the Liquor Control Commission to engage legal counsel other than the Attorney General, nor does Claimant question the authorities cited in Respondent’s motion to dismiss. Claimant’s objection to said motion is based solely on the assumption that the question of proper legal representation of the Commission was decided by the Appellate Court in its brief, one sentence order of May 8, 1974, which merely stated:

The Motion of William J. Scott, Attorney General of the State of Illinois, to intervene and dismiss the appeal and other relief sought is denied.

The authority of the Attorney General as stated in Fergus being well understood by the Appellate Court, we think it more logical to assume that his motion was denied only because the Court did not favor a dismissal of the appeal at that particular stage in the litigation without the appellant’s consent, and without rendering a judicial ruling on certain "home-rule” issues of general public interest.

The Appellate Court did in fact dismiss the appeal in its landmark opinion of March 5, 1975, Ill. Liquor Control Commission v. City of Joliet, 324 N.E.2d 453. In upholding the Joliet Ordinance (which set a 21 year old minimum drinking age for beer and wine, notwithstanding the 19 year old minimum age established by the State statute) the Court reached the same conclusions of law on which the Attorney General had decided that it would be futile to challenge this City Ordinance or to appeal the judgment of the Circuit Court which had previously upheld it.

If the Appellate Court had granted the Attorney General’s motion to dismiss the appeal before rendering its opinion, all governmental units would have been deprived of some very significant judicial interpretations dealing with the powers of "home-rule” municipalities in the area of liquor control.

We find that the position of the Attorney General is sustained by the authorities cited in the motion to dismiss this claim.

Respondent’s motion to dismiss is granted.


text:
    (No. 75-1295
    Roger L. Reising, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 12, 1975.

      Roger L. Reising, Pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.

This claim arose as the Claimant was improperly discharged. He was discharged January 11, 1974, and rehired on July 27, 1974. The first Civil Service Commission hearing was scheduled March 1, .1974, and was continued at the request of the Claimant’s attorney. The hearing was held on May 24, 1974. The department does not have to pay Mr. Reising’s back salary for the period the hearing was continued at his attorney’s request. From May 1 through May 24, 1974, Mr. Reising was paid $480.00 in unemployment compensation. However, the amount claimed ($480.00) was originally erroneously withheld as a set-off for unemployment compensation received during the period of unemployment, while in truth the original payment for back salary did not include payment for the period of time represented by the unemployment compensation which was set off. Therefore, there are no deductions to be withheld from the amount herein awarded.

It is, therefore, ordered that Claimant be and is hereby awarded Four Hundred Eighty Dollars ($480.00).


text:
    (No. 75-1452
    Brian Gabrielson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 29, 1976.

    Robert A. M. Predan, Attorney for Claimant.

      William J. Scott, Attorney General; Richard J. Grossman, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause coming on to be heard on the Joint Stipulation of the parties hereto, and the Court being fully advised in the premises;

This Court finds that this claim is for damages sustained by the Claimant to his motor vehicle and loss of certain of his personal belongings when said vehicle and personal belongings were stolen by escapees from the Illinois Youth Center, St. Charles, Illinois. The motor vehicle and personal belongings in question were stolen by Ronnie New and Ruben Little. Damages to Claimant’s vehicle and the loss of personal belongings have been estimated at $300.00, as substantiated by exhibits attached to Claimant’s complaint.

It is hereby ordered that the sum of Three Hundred Dollars ($300.00) be awarded to Claimant in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause.


text:
    (No. 76-479
    George J. Lewis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 28, 1976.

   Per Curiam.

This cause comes before this Court on a Joint Stipulation by the Attorney General and the Claimant based on the facts set forth in the departmental report and the holding of this Court in the consolidated cases of which the case of Don E. Beane, Jr. v. State of Illinois, No. 75-406 is representative. In the Beane case, Mr. Beane was a hearing officer for the Fair Employment Practices Commission and it was ruled in that case that, although the F.E.P.C. was short of funds appropriated for the purpose of payment of hearing officers and court reporters, the function performed by the hearing officers and court reporters was a function required by the Constitution of 1970 and by the statutes setting up the Fair Employment Practices Commission pursuant to the requirements of the Constitution. It was held that, therefore, the expenses incurred by F.E.P.C. for hearing officers and court reporters were expenses "expressly authorized by law.” Being expressly authorized by law, this expenditure fell within the exception to expenditures in excess of moneys appropriated pursuant to Ill.Rev.Stat., Ch. 127, §166, wherein it is stated:

No officers, institution, department, board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.

We find that the claim of Mr. George J. Lewis is identical with the claim of Mr. Beane and we, therefore, grant an award in the amount of Three Thousand Four Hundred Eighty-Two and 50/100 Dollars ($3,482.50).


text:
    (No. 76-785
    Herschel Sunley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 12, 1976.

      Herschel Sunley, Pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C. J.

This is an action to recover the sum of $25,596.63 for labor and materials furnished by Claimant in the construction of toilet facilities for disabled individuals attending the 1975 Illinois State Fair. The matter comes before the Court on the joint stipulation of the parties.

That stipulation establishes that Claimant entered into a contract with the Capital Development Board on July 22, 1975, under which he agreed to supply labor and materials to renovate the Illinois Building at the Illinois State Fairgrounds to make the building accessible to handicapped persons prior to the start of the State Fair on August 8, 1975. The contract price for the work was $24,265.00, which was raised to $25,569.63 as a result of two subsequent change orders.

The funds for the project were to come from a FY-75 appropriation account entitled, "Improvements for the Handicapped.” The appropriation was contained in a bill which became law on or about May 26, 1975, appropriating to the State Fair Agency the sum of $60,000 from the Agricultural Premium Fund for the purpose of making the State Fairgrounds accessible to handicapped persons. A portion of the FY-75 appropriation was expended on work at the Fairgrounds, but the balance of the appropriation had lapsed prior to the award of the instant contract to Claimant. At the time the contract was awarded to Claimant, the Capital Development Board was unaware that there had not been a reappropriation of the unobligated portion of the original appropriation for improvements for the handicapped at the fair.

The stipulation before the Court further establishes that Claimant fully performed his obligations under his contract with the State, and that the State was more than satisfied with the quality of his work.

The State does not contest an award to Claimant but questions whether an award can be made where work is performed under a contract entered into after the lapse of the applicable appropriation.

In Illinois Belli & Belli Company v. State, 31 Ill.Ct.Cl. 129, this Court said:

The doctrine that a contract will be implied by law to pay for labor, services or materials furnished one person by another is inapplicable as against the State, but where there is no violation of positive law involved, an award against the State may be made for labor, services or materials furnished and beneficial to it.

This is not an instance where a State agency has expended funds in excess of an appropriation. Here there had been an appropriation for this specific project which, through no fault of Claimant, had lapsed before the contract was let for bidding, and which by oversight of the State had not been reappropriated for FY-76. It is therefore clear that it was the intent of the legislature to appropriate funds for the services performed by Claimant and under these circumstances an award for labor, services and materials furnished by Claimant to the State is proper.

Claimant is accordingly awarded the sum of Twenty-Five Thousand Five Hundred Ninety-Six And 63/100 Dollars ($25,596.63).

SUPPLEMENTAL OPINION

Respondent has moved for reconsideration of the Court’s decision in this action, wherein we awarded Claimant the sum of $25,596.63 for work performed at the Illinois State Fair to make the Illinois Building accessible to handicapped persons. Respondent expresses great concern that our opinion departs from long and firmly established precedents of this Court and may be interpreted by some as precedent for recognition of a claim against the State based either upon quantum meruit, implied contract or good conscience.

The Court wishes to make clear that its opinion herein stands for no such proposition, nor does this Court intend to, and in fact does not, establish a precedent whereby a void contract, entered into after the lapsing of an appropriation, would be recognized by this Court.

Rather the Court’s award in this cause is based upon the specific and somewhat unique factual situation with which we are presented. It was established by stipulation that the Capital Development Board entered into a contract with Claimant on July 22, 1975, under which Claimant was to supply labor and materials to renovate the Illinois Building at the Illinois State Fairgrounds to make the building accessible to handicapped persons prior to the start of the fair on August 8, 1975.

The funds for the project were to come from an FY-75 appropriation entitled, "Improvements for the Handicapped.” The appropriation was contained in a bill which became law' on or about May 26, 1975, which appropriated the sum of $60,000 from the Agricultural Premium Fund for the purpose of making the State Fairgrounds accessible to the handicapped. A portion of the FY-75 appropriation was expended on work at the Fairgrounds, but the balance, which was in excess of the amount of this claim, lapsed prior to the award of the contract to Claimant.

As we noted in our opinion, this was thus not an instance where a State agency expended funds in excess of an appropriation. There had been an appropriation for the specific project for which Claimant seeks compensation, but that appropriation lapsed before the contract was let by bidding and, by oversight of the State, had not been reappropriated for FY-76.

Our opinion further rested upon the fact that the contract with Claimant was for improvement of facilities to make them usable by handicapped persons. The Facilities for the Handicapped Act, Ill.Rev.Stat., Ch. they are usable by handicapped persons.

Public buildings which lack facilities for handicapped persons (a) create a substantial risk of death or injury with respect to handicapped persons and others both in normal conditions and in the event of fire, panic or other emergency and (b) impair the full enjoyment of public buildings by handicapped persons. Therefore, facilities for the handicapped persons in public buildings are an object of serious public concern.

It is thus the announced public policy of the State of Illinois to promote the modification of public facilities so they are usable by handicapped persons.

We further note that the Purchasing Act, Ill.Rev.Stat., Ch. 127, §166 states:

No officer, institution, department or board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.

We think that the expressed public policy of the State, as set forth in the Facilities for the Handicapped Act as quoted above, brings the Claimant’s contract within the foregoing exception to the Purchasing Act.

This concept is not new. It was first expressed by the Illinois Supreme Court in the case of Fergus v. Brady, 277 Ill. 27 where the Court stated:

And by the plain language of the constitution every claim or contract is utterly void if not within the amount of appropriations already made, unless there is express authority of law for the creation of the debt or claim or the making of the contract. In Section 19 claims under any agreement or contract made by express authority of law are excepted, and if there is some particular and specific thing which an officer, board or agency of the State is required to do, the performance of the duty is expressly authorized by law.

Although the Constitution of 1870, to which the case of Fergus v. Brady refers, has been since replaced by the Constitution of 1970, Ch. 127, §166, as set out above, was passed by the Legislature in recognition of the constitutional exception and has not been repealed. It therefore follows that the Legislature still recognizes the desirability and validity of the exception.

In sum, our decision rests upon our perception that it was the clear and unmistakable intent of the Legislature that the public buildings at the Illinois State Fairgrounds be renovated to facilitate the handicapped in accordance with their announced public policy, and therefore, that a contract for that purpose be let, and that payment be made for the work so performed; such payment being authorized, if need be, by the exception contained in the Purchasing Act which permits expenditure of moneys in excess of an appropriation where the expenditure is "expressly authorized by law.” This opinion does not rest upon considerations of implied contract, quantum meruit or good conscience and should not be so interpreted.


text:
    (No. 76-968
    State Employees’ Retirement System of Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 19, 1976.

    State Employees’ Retirement System of Illinois, Pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.

The record in this cause indicates the purpose for which this claim was filed was for the payment of FICA contributions in accordance with schedules authorized and determined by law and that the Attorney General has submitted a Stipulation by Respondent based upon information forwarded to his office by said department, as evidenced by .the departmental report attached to the Stipulation by Respondent.

Accordingly, this Court finds that this was a properly authorized expenditure by the State Board of Elections, State of Illinois. No part of this expenditure has been paid and the total outstanding is $2,664.27. Money was appropriated under appropriation and fund #001-58701-1170-0000 of which appropriation there were insufficient funds from which to pay these contributions.

The Social Security Enabling Act, Ill.Rev.Stat., Ch. 108-1/2, §21-101, et. seq., §21-123 specifically provides that:

Each political subdivision or instrumentality as to which a plan has been approved under "the 1951 Act” or this article shall pay into the Social Security Contribution Fund, with respect to wages at such time or times as the State Agency may by regulation prescribe, contributions in the amount and at the rates specified in the applicable agreement entered into by the State Agency.

The Constitution of 1970 provides in Art. VIII, Sec. 1 that:

Section 1. General Provisions
(a) Public funds, property or credit shall be used only for public purposes.
(b) The State, units of local government and school districts shall incur obligations for payment or make payments from public funds only as authorized by law or ordinance.

The General Assembly, realizing that budgetary problems would arise from time to time authorized the binding of the State in excess of moneys appropriated as follows:

No officer, institution, department, board, or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.

Accordingly, this Court finds that the expenditures for which claim is made was an obligation "expressly authorized by law.”

It is hereby ordered that the Claimant be awarded, in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause, the sum of Two Thousand Six Hundred Sixty-Four and 27/100 Dollars ($2,664.27).


text:
    (No. 76-969
    State Employees’ Retirement System of Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 19, 1976.

    State Employees’ Retirement System of Illinois, Pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.

The record in this cause indicates the purpose for which this claim was filed was for the payment of FICA contributions in accordance with schedules authorized and determined by law and that the Attorney General has submitted a Stipulation by Respondent based upon information forwarded to his office by said Department, as evidenced by the departmental report attached to the Stipulation by Respondent.

Accordingly, this Court finds that this was a properly authorized expenditure by the Illinois Arts Council. No part of this expenditure has been paid, and the total outstanding is $1,361.04. Money was appropriated under appropriation and fund #001-5031-1170-0000 of which appropriation $105.00 lapsed and was returned to the State Treasury.

The sole reason said claim was not paid is due to the lapse of the appropriation for the period during which the debt was incurred. The Social Security Enabling Act, Ill.Rev.Stat., Ch. 108-1/2, § 21-101 et. seq., § 21-123 specifically provides that:

Each political subdivision or instrumentality as to which a plan has been approved under 'the 1951 Act’ or this article shall pay into the Social Security Contribution Fund, with respect to wages at such time or times as the State Agency may by regulation prescribe, contributions in the amount and at the rates specified in the applicable agreement entered into by the State Agency.

The Constitution of 1970 provides in Art. VIII, Sec. 1 that:

Section 1. General Provisions
(a) Public funds, property or credit shall be used only for public purposes.
(b) The State, units of local government and school districts shall incur obligations for payment or make payments from public funds only as authorized by law or ordinance.

The General Assembly, realizing that budgetary problems would arise from time to time authorized the binding of the State in excess of moneys appropriated as follows:

No officer, institution, department, board, or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.

Accordingly, this Court finds that the expenditure for which claim is made was an obligation "expressly authorized by law.”


text:
    (No. 76-970
    State Employees’ Retirement System of Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 10, 1976.

    State Employees’ Retirement System of Illinois, Pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.

The record in this cause indicates the purpose for which this claim was filed was for the payment of FICA contributions in accordance with schedules authorized and determined by law and that the Attorney General has submitted a Stipulation by Respondent based upon information forwarded to his office by the Legal Advisor to the Speaker of the House of Representatives of the Illinois Legislature, as evidenced by the departmental report attached to the Stipulation by Respondent.

Accordingly, this Court finds that this was a properly authorized expenditure by the House of Representatives. No part of this expenditure has been paid, and the total outstanding is $144.74. Money was appropriated under appropriation and fund #001-10120-1900-0400 and #001-10120-1900-0300 of which appropriation there were insufficient funds from which to pay these contributions.

The Social Security Enabling Act, Ill.Rev.Stat., Ch. 108-1/2, §21-101, 21-123, specifically provides that:

Each political subdivision or instrumentality as to which a plan has been approved under "the 1951 Act” or this article shall pay into the Social Security Contribution Fund, with respect to wages at such time or times as the State Agency may by regulation prescribe, contributions in the amount and at the rates specified in the applicable agreement entered into by the State Agency.

The Constitution of 1970 provides in Art. VIII, Sec. 1 that:

Section 1. General Provisions
(a) Public funds, property or credit shall be used only for public purposes.
(b) The State, units of local government and school districts shall incur obligations for payment or make payments from public funds only as authorized by law or ordinance.

The General Assembly, realizing that budgetary problems would arise from time to time, authorized the binding of the State in excess of moneys appropriated as follows:

No officer, institution, department, board, or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.

Accordingly, this Court finds that the expenditures for which claim is made was an obligation "expressly authorized by law.”

It is hereby ordered that the Claimant be awarded, in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause, the sum of One Hundred Forty-Four and 74/100 Dollars ($144.74).


author: Spivack, J.

text:
    (No. 5439
    W. R. Mount, Et Al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1977.

    Harris, Holbrook & Lambert, Attorneys for Claimants.
    William G. Clark, Attorney General; Lee Martin, Assistant Attorney General, for Respondent.
   Spivack, J.

The claim which the Court is required to consider pleads two distinct factual situations, each of which allegedly gives rise to compensable damages in favor of Claimants and against the State. The first involves the State’s alleged failure to maintain a water gate which was on a river which crosses through the contiguous properties of the State and of the Claimants, which alleged negligence was the proximate cause of a flooding of Claimants’ land and destruction of crops; the second involves the State’s refusal to erect and/or maintain a division fence between its property (the Vienna Branch of the Illinois State Penitentiary) and that of Claimants, causing some of Claimants’ cattle to stray onto the State’s property where they were lost.

The cause was assigned to Commissioner Robert F. Godfrey, who conducted a hearing receiving the testimony of various witnesses, the numerous documents and exhibits which were admitted into evidence, and the arguments and briefs of counsel. The Commissioner has filed his report, the transcripts, the exhibits, and briefs with the Court, all of which are now before us. The following facts were established by Commissioner Godfrey:

Warden Hollis McKnight, for and on behalf of the Respondent, made an oral agreement with W. R. Mount about the division fence where the prison line adjoins the lands of Robert Mount. It was agreed between McKnight and Mount that the Respondent was to build and maintain one-half and the Mounts the other half. This in fact occurred and the fence was built by the parties. Warden McKnight left the Vienna Branch on September 15, 1965. His successor, Warden Macieiski, refused in the years of 1965 and 1966 to maintain half of the division fence between the Respondent’s land and the land of the Claimants, although often requested by the Claimants to do so and so notified by letters admitted into evidence.

Claimant W. R. Mount claims a loss of 22 head of missing cattle attributable to the State’s failure to repair its portion of the fence. Mount had written a letter to Warden Macieiski dated March 14, 1967, advising him that on April 1, 1967, Mount would begin pasturing his cattle on the land bordering the prison property and requested that the Respondent repair the fence. The Warden did not cause the repairs to the fence, and Claimant did thereafter pasture his cattle on the subject land.

Warden Maiceiski wrote a letter to Mount dated April 25, 1967, wherein he told him that he had nine head of cattle. Mount went to the Warden but was told to return Monday, three days later. Mount waited at least 20 days before returning and, at that time, the Warden said someone had cut the fence and turned the cattle out. Mount and the Warden had a verbal confrontation, but nothing concerning the cattle came of it.

Part of Claimants’ agreement with Warden McKnight concerned the maintenance of a water gate which was on the Respondent’s side of Maxe Creek and which Respondent had constructed. Pursuant to this agreement, the Respondent had the duty to clear debris therefrom so as to prevent spillage and possible flooding. This agreement was honored under the administration of Warden McKnight, but not under that of Warden Macieiski, when logs and debris were allowed to accumulate. As a result, in 1967 heavy rain downfall flowing through Maxe Creek overflowed onto Claimants’ land causing a flood condition and destroying 52 acres of corn, 70 acres of pasture, and 37 acres of hay crop.

We will first consider the matter of the lost cattle. Claimants contend that with respect to the fence, Respondent breached its statutory duty to maintain a lawful fence, Ill.Rev.Stat., Ch. 54, §2, and further breached its contract between Claimants and Warden McKnight. Further, with respect to the nine head of cattle which were on Respondent’s property, Claimants contend that there was a bailment relationship between the parties which required Respondent to exercise ordinary care for the protection of the cattle which care Respondent failed to provide.

In our view, Claimants’ argument in connection with the State’s failure to maintain the fence must fail both on statutory and on common law grounds. Ill.Rev.Stat., Ch. 54, §2, et. seq., provides for the rights of a landowner if his neighbor fails to maintain a fence. Specifically, the injured party may construct the fence which his neighbor has failed to erect and then proceed at law for the cost and expense of so doing. Even absent the statute, the common law would require that the injured party mitigate his damage caused either by a statutory or a contractual breach by doing the work himself, rather than aggravate the damage by turning out his cattle into a pasture which was unfenced. See Dexter vs. Heochney, 47 Ill.App. 205; Fox vs. Fearneybrough, 85 Ill.App.2d 371.

We likewise reject Claimants’ bailment argument in support of their attempt to recover for the nine head of cattle which may have wandered onto Respondent’s land.

Firstly, to create a bailment there must be either an express or implicit agreement to create the relationship. There was no such agreement made here nor can the law imply such an understanding. Claimants are in effect contending that a trespasser is entitled to the status of an invitee. This is not the law. A trespasser is entitled only to be protected from intentional harm and not from ordinary negligence. Here the cattle (if they were, in fact, the cattle of Claimants, a fact not proven) were entitled to protection against intentional and not negligent injury. In any event, Claimants certainly did not act reasonably either to identify or to protect their own property. After being properly advised, Claimants allowed over 20 days to elapse before attempting to reclaim their property. In the interim period, the cattle were lost and not through any deliberate act of the Respondent.

We will next consider Claimants’ claim for damage to their crops and land occasioned by Respondent’s failure to maintain the water gate.

Respondent takes the position that the Claimants should have kept the water gate in repair themselves, and that Respondent’s only duty was not to actively invade the property rights of the Claimants, citing Laney v. Jasper, 39 Ill. 46; Mello v. Lepisto, 77 Ill.App.2d 399. Further, argues Respondent, it is the Claimants’ duty to go upon the servient land to keep the water gate in repair, citing Wessels v. Colebank, 174 Ill. 618; Savoie v. Town of Bourbonnais, 339 Ill.App. 551.

We find Respondent’s arguments in this regard to be without merit and the cases cited readily distinguishable for two reasons. First, here there was an agreement by the Respondent to keep the water gate clear, which agreement it violated. Second, here the water condition was not natural but resulted from a condition on the land created by Respondent which changed the natural flow.

In our opinion, Respondent should have foreseen the damage to Claimants caused by the change in the flow of the creek, and its failure to act to prevent the overflow, by keeping the water gate free from debris, was negligence proximately causing the damage to land and crops. Kroencke v. State, 22 Ill.Ct.Cl. 193; Doerr v. State, 22 Ill.Ct.Cl. 314.

The Claimants introduced evidence as to the monetary extent of damage to the crops and lands. This was not challenged by the Respondent. Therefore, the Claimants are entitled to the amount proved for the losses of the corn crop, hay crop, and loss of pasture for the years of 1965 and 1966.

Claimants are accordingly awarded the sum of Twelve Thousand Two Hundred Fifty Dollars ($12,250.00).