Katanich v. State of Illinois

The declaration filed in this case alleges that on May 5, 1926, Charles Shader, No. 5266; Charles Duschowski, No. 5667; [*374] James V. Price, No. 9103; one Vernardo Ron, No. 9083; Robert Torrez, No. 9084; one Gregorio Rizo, No. 9389, and one Walter Spalesky, No. 7132, were inmates of the Illinois State Penitentiary, at Joliet, Illinois, legally confined therein by judgments of courts of competent jurisdiction, for crimes committed within the State of Illinois, and were then and there serving sentences imposed upon them and each of them by said courts for said crimes, and said convicts on said day, without any warrant or authority, committed an act of riot, killed the assistant warden of the State penitentiary, and made an unlawful escape from said penitentiary; that said convicts, after such escape, came to the village of Leonore on the same date, and at or about the same time certain policemen of, for and from the city of Streator, Illinois, in compliance with the legal duty then and there imposed upon them, began a search for said convicts, and in making such search came to said village of Leonore and entered plaintiff's place of business, a soft drink parlor, and ordered said plaintiff to join the posse comitatus and join in the search for said convicts; that said plaintiff then and there complied with such order and joined such posse comitatus; that about 10:00 o'clock p. m., of the date above mentioned, said convicts were apprehended in said village of Leonore, and an attempt to capture them was made, and while so attempting to capture said convicts, plaintiff was then and there wounded, to-wit, said convicts then and there being armed with revolvers, pistols, guns and firearms loaded with powder and leaden bullets, fired said pistols, revolvers, guns and firearms at and toward said plaintiff, while he, said plaintiff, was in the discharge of his duty as a member of said posse comitatus; that seven leaden bullets so fired from said firearms, as aforesaid, by force of the gunpowder aforesaid, struck plaintiff at divers places upon his body, to-wit, one of said bullets striking plaintiff in the lower right side of the abdomen and piercing through the body; one bullet striking the left side of the abdomen and passing through the body; three of said bullets striking and lodging in the left groin, and two of said bullets entering and passing through the right thigh; and plaintiff claims damages in the sum of $2,500.00.

To the declaration filed by claimant, a demurrer was filed by the Attorney General, which, as a matter of law, is sustained. [*406] in 1921, was repealed. A new statute was passed in 1923 which provided for the holding of money paid under written letter of protest for a period of thirty days so as to enable the protesting taxpayer to bring his protest to the notice of a court of record by a proper injunction proceeding. The Attorney General has ably argued that this statute establishes a procedure for testing these questions and recovering illegal taxes in courts of record, and that this court should refuse to take jurisdiction of such claims, where the claimant might have gone into a court of record and litigated his claim there against a State officer having custody of the funds. There is a great deal to be said in favor of the argument advanced by the Attorney General, however, the payments involved in these claims were all made prior to the enactment of the statute of 1923, and his argument, therefore, has no weight in this particular case.

The second point involved in this case is a question of the right of this claimant to recover the sum of $2,335.00, which it paid as additional initial fees and which it claimed were not required to be paid by the statute, but were collected by the Secretary of State and paid by the claimant under compulsion and duress. The facts with reference to the compulsion and duress were practically identical with those we have discussed above, and we reach the same conclusion as to that point as we did above with reference to the excess annual taxes paid.

There is the further defense urged by the Attorney General as to this item which is not urged as to the annual tax. The Attorney General claims that this court has no right to construe the statute of the State of Illinois and determine its meaning. In this case the Secretary of State construed the General Corporation Act to mean that wherever a corporation changed its shares from par value into no par value, even though it did not increase either expressly or actually or theoretically its authorized capital stock, nevertheless, since it did increase its shares and change them from par to no par, that the statute provided for an additional initial fee based upon authorized capital stock computed by multiplying the non par shares $100 each. The statute says quite plainly that the additional initial fee shall be assessed upon increases in the capital stock. It also says that where the company has non par stock or shares, such shares shall be considered of the par value of $100 each. This same question was before the Supreme Court of Massachusetts in the case of Hood Rub[*376]LAURIE v. STATE OF ILLINOIS.

part of the fall of 1926, and that at the time of the collision it was of the value of $30.00.

A demurrer filed by the Attorney General of the State of Illinois is sustained, as a matter of law.

A letter from C. R. Miller, director of the Department of Purchases and Construction, and Frank T. Sheets, chief highway engineer, states that after a thorough investigation of the facts in connection with this accident, they believe that Mr.

Bean is justly entitled to the amount of his claim.

While we do not concede any legal liability on the part of the State of Illinois, in view of the circumstances and equity of the case, we award claimant the sum of $79.65.