Booth Fisheries Co. v. State of Illinois

The facts in this case are not in dispute and it is admitted that the claimant paid the sum of $2285.90 as excess franchise taxes in the years 1920, 1921 and 1922. These computations are based upon the ruling of the Supreme Court in the case of People, ex rel. Roberts, & Schaefer v. Emmerson, 305 Ill. 348.

The question of whether the payment was voluntary or made under duress and compulsion was presented and argued by both sides and the facts and the law as to this point is the [*408] same and our conclusion is the same as that arrived at in the case of Altorfer Brothers Company, No. 966, on which we have filed an opinion. There is, however, in this case an additional point not occurring in the Altorfer case and that is that one of these tax payments sought to be recovered was paid in July, 1920, and the claim was not filed until more than five years after the date of the payment. This fact appears upon the face of the claim and is raised in this case. Counsel for the claimant seeks to obviate the running of the Statute of Limitations by calling the court's attention to the fact that the Attorney General argues that this court has no right to construe a statute of the State of Illinois, but must wait until the Supreme Court has passed upon and construed the statute.

Counsel for the claimant says he agrees with the Attorney General that this court usually will not construe a statute and argues that since the court would not construe the statute and declare the tax to be excessive as levied under the construction given the statute, by the Secretary of State that, therefore, the Statute of Limitations did not begin to run until the Supreme Court of Illinois has construed the statute and the Statute of Limitations was run from the date of such decision by the Supreme Court of Illinois.

We cannot agree with either the Attorney General or the claimant's attorney in this matter. This court does have power to construe statutes where it is necessary on claims brought before this court and can, and often does, reach a different conclusion from the Secretary of State or other officers on questions of construction. It follows, therefore, that the cause of action of this claimant first arose immediately upon the making of the payment and the Statute of Limitations would start to run from that time. The attorney for the claimant makes the further argument that the Supreme Court of Illinois in the O'Gara case has held the statute to be unconstitutional and that the Statute of Limitations should not begin to run except from the time when the Supreme Court of Illinois declared the law to be unconstitutional.

We agree with counsel that this court has no jurisdiction to declare statutes unconstitutional. If the basis of recovery were the unconstitutionality of the statute, we would compute the time for running of the statute from the date of the decision of the Supreme Court so holding the law to be unconstitutional, provided we were convinced the claimant had [*409] used due diligence to have the statute tested and had not slept upon his rights. However, in the case at bar it appears the claimant does not make his claim upon that basis.

It follows, therefore, that we must find against the claimant as to the item paid more than five years before the filing of this claim. This item was $1,031.30. The court is of the opinion that the remainder of the said claim is just and that the State in equity and good conscience should pay it, and, therefore, awards the claimant the sum of $1,235.60.

(Claims allowed.)

FRANK W. PETERSON AND MARY PETERSON, HIS WIFE, 997; ELIZA MONAHAN, 998; CONCEZIO DEACETIS, 999; JOHN PETRUSKA AND MARGARET PETRUSKA, HIS WIFE, 1000; JOHN AUGUST ROSELL AND SELMA ROSELL, HIS WIFE, 1001; JOHN AUGUST ROSELL, 1002; GUSTAV A. HOLMES AND MARY HOLMES, HIS WIFE, 1003; JOHN E. SCHWAB, 1004; MARGARET KESSLER, 1005; R. L. FITZGERALD, 1006; OSCAR E. BUSCH, 1007; FRANK BALOGH AND ELIZABETH BALOGH, 1008; VICTOR ANDERSON, 1009; ROYCE F. ZINGER, et al, 1011; EMMA BUCHMEIER KEELER, 1012; GEORGE F. PIERCE AND LILY PIERCE, HIS WIFE, 1013; CHARLES LINDSTROM, 1014; Claimants, vs. STATE OF ILLINOIS.

Opinion filed May 26, 1927.

HARD ROADS-when award may be made for damages sustained by construction of. Where by the construction of the State hard road claimants sustained damage to their property by being deprived of access to their property, or to access to the public thoroughfare on which their property fronts, and are deprived of the light and air, an award may be made to them for the damages sustained.

SNAPP, HEISE & SNAPP, for claimants.

OSCAR E. CARLSTROM, Attorney General; WILLIAM E. TRAUTMANN, Assistant Attorney General, for respondent.

MR. CHIEF JUSTICE CLANTRY delivered the opinion of the court: All of said claims were brought on account of the construction of a hard road known as Route 22, running from the Indiana State line on the east to the Mississippi river on the west, it being alleged by claimants that during the year 1925 this road was constructed upon and along a road called East [*410] Cass street, just outside the city limits of the city of Joliet, Illinois, and that a long, high and wide viaduct was built over the railroad tracks and right of way of the Elgin, Joliet and Eastern Railway Company, with long and gradual approaches thereto, and which viaduct is along and in front of the property of the claimants. It is further alleged that said viaduct was built in such a manner as to occupy all of the street or roadway and raised the roadbed thirty feet and upward fronting the properties of claimants, depriving claimants of the light and air and practical access to the public thoroughfare of said claimants' property fronts.

Evidence was heard and the following stipulation was agreed upon and executed in behalf of the claimants by their attorneys, Snapp, Heise & Snapp, and the defendants, The State of Illinois, by its Attorney General, Oscar E. Carlstrom, which stipulation is, in words and figures, as follows, to-wit:

"It is agreed and stipulated between the parties, upon a consideration of the provisions that the testimony of the minimum witness as to the total amount of damages to property be agreed upon, except as to the damages in No. 999 and 1004, in which cases the damages are increased to an amount based upon actual offers for the purchase of the property, and that the undisputed proof of damages to business is also agreed upon, except that the damages in No. 1014 be reduced to an amount $1,000.00 less because of a clerical error in computation made by counsel for the petitioners. It is further stipulated that in No. 1011 the property damages agreed upon shall be the minimum amount as disclosed by the proof and business damages in said No. 1011 shall be the amount disclosed by the uncontroverted proofs.

It is further stipulated that the following amounts arrived at as aforesaid are agreed upon:

No. Claimant-Injury to Real Estate 997 Peterson .................................................. $ 2,500.00 998 Monahan ................................................... 1,500.00 999 Deacetis .................................................. 12,500.00 1000 Petruska .................................................. 3,100.00 1001 Rosell .................................................... 3,000.00 1002 Rosell .................................................... 3,500.00 1003 Holmes .................................................... 2,500.00 1004 Schwab .................................................... 3,000.00 1005 Kessler ................................................... 7,800.00 1006 Fitzgerald ................................................ 4,500.00 1007 Busch ..................................................... 3,600.00