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were finally merged in 1883 into a more independent commission, called the board of claims, consisting of three commissioners....... An appeal from the awards of this board lies to the court of appeals. The awards are reported to the legislature, and require a special appropriation to become payable; so that now, as before, the final disposition of claims against the state depends upon legislative action. It was plainly the intention of the legislature, however, to assimilate the powers and proceedings of the board of claims to those of a regular court, and the necessary appropriations are made as a matter of course and without re-examination of the merits of the respective claims."

36

In 1897 the name of the board of claims was changed to the court of claims. No change was made, however, in its jurisdiction, and it was held that the court of claims was not a judicial organization.37 The name was again changed to the Board of Claims in 1911.38

Provisions in other states. The constitution of Alabama, Arkansas and West Virginia, like that of Illinois, provide that the state shall not be made a defendant in any court.

39

In twenty-one states the constitutions permit the state to be sued, or provide that the legislature may allow such suits, the more common provision being that authorizing legislation upon the matter.

In Idaho and North Carolina the constitutions provide that the highest court shall have original jurisdiction in all claims against the state, but that their decisions shall be merely recommendatory, and that no process shall issue thereon. The Louisiana constitutional provision gives the legislature power to provide that suits may be instituted against the state in the district court at the capitol, and also provides that the object of such suits and the only effect of judgment shall be judicial interpretation of the legal rights of the legislature in making appropriations.

With possibly two exceptions, these constitutional provisions are not self-executing, and few states have passed laws allowing suits against the state. In Arizona and California the laws provide that suits may be brought in any court against the state on contract or for negligence. In Indiana, Mississippi, Nebraska and Nevada, suits may be brought on contracts, but only in the courts at the county in which the capitol is located. In North Dakota, actions respecting the title to property or arising upon contract may be brought in the district court, and if not of a local nature, such actions must be brought in the county in which the capitol is located. The statutes of California, Mississippi, Nebraska, Nevada and North Dakota require that the claim be presented to the auditor of public accounts or to a state board of examiners and refused before suit can be brought. Wisconsin permits a

se Laws of 1897, Chap. 36.

Swift v Luce, 204 N. Y. 478 (1912).

38 Laws of 1911, Chap. 856.

29 Arizona, California, Delaware, Florida, Idaho, Indiana, Kentucky, Louisiana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania. South Carolina, South Dakota, Tennessee, Washington Wisconsin, Wyoming.

suit if the legislature refuses a claim. In Massachusetts suits may be brought in the superior court.

Connecticut, Idaho and Utah do not allow suits, but have boards or commissions to examine contract claims. In Kansas each branch of the legislature has a committee on claims.

Conclusions. There is a long-established principle of English. law that the sovereign cannot be sued without its consent, but in England this theory was coupled with legal machinery through which the sovereign gave its consent to be sued. The doctrine that the state cannot be sued without its consent was adopted as to the American states, but without the legal machinery by which the state should consent to be sued. The state legislature thus became the organ to adjudicate claims, and such matters were handled by appropriations. This situation soon proved unsatisfactory. Neither congress nor the state legislatures possessed adequate facilities for the investigation of claims. For this reason, congress created a court of claims in 1855, and a number of states have set up machinery for the investigation of claims.

A small group of state constitutions expressly prohibit suits against the state. Illinois is in this group, through a reversal of policy in 1870, due to a specific local situation.

Twenty state constitutions expressly authorize suits against the state, but the bulk of them do so if legislation is enacted for the purpose, and in only a few of these states has such legislation been enacted. In the absence of constitutional provision either authorizing or prohibiting suits against the state, legislature may authorize such suits; although if a state constitution specifies what courts may be created, a separate court for this purpose could not be set up, even though the legislature might authorize suits against the state.

The real problem is that as to whether a judicial remedy is better than investigation by a board. The remedy obtained through suit against the state is likely to limit itself to purely legal rights as distinguished from those in which a claim may exist as a matter of conscience; and suits against the state where permitted will ordinarily be conducted in accordance with technical rules of procedure.

The presentation of claims before a purely administrative body (as is the Illinois court of claims) is, on the other hand, likely to afford a more flexible procedure. Under the administrative plan, of course, awards are not paid unless the general assembly appropriates for the purpose, but appropriations are almost certain to be made in such a case. The problem of most specific interest in Illinois today is occasioned by the fact that the general assembly has discretion to appropriate for the payment of claims, irrespective of whether they have been allowed by the body set up for their adjudication.

The large project of construction now being undertaken by the state of Illinois makes this problem more important than at any other time in the state's history. The following alternatives present themselves as to this matter:

1. The presentation of claims directly to the general assembly, with that body appropriating to meet those which it finds proper. This plan is to some extent still employed in Illinois, though it would almost certainly prove unsatisfactory for the determination of a large number of claims. The Illinois general assembly in 1917 enacted into a law a provision that appropriations should not be made to pay claims, unless they were first passed upon by the court of claims (if within the jurisdiction of that body), but this enactment is apparently a mere declaration of policy, without constitutional validity.

2. The state might return to the constitutional policy of 1848, under which the general assembly was authorized to direct the manner in which suits might be brought against the state. Such a policy would seem to imply that the general assembly might authorize suit in any court of record, though, of course, a constitutional provision could itself determine the method of bringing suit.

3. The state could adopt the policy of the national government and set up a court (a judicial body in fact as well as in name) to pass upon claims against it. Such a body could not be set up under the present constitution of Illinois, for the courts that may be established are expressly enumerated in the constitution. It may be suggested that a permanent judicial body for this purpose is undesirable unless claims are numerous and likely to continue so.

4. The state may adhere to the present statutory plan, with a board having authority to make awards, such awards to be paid only after legislative appropriations. If such a plan is adopted, attention may well be given to the New York constitutional provisions under which the legislature is itself forbidden to audit or allow any private

claim.

Here as elsewhere in the constitution it is desirable merely to lay down the general policy in the constitution, rather than to make detailed specifications.

APPENDIX NO. 1. REFERENCES.

Baldwin, Simeon E. The American Judiciary. New York. The Century Co. 1905.

Illinois State Bar Association. Proceedings 1917, pp. 317-365, 393-427. Series of papers on almost every phase of the Illinois judicial situation.

Massachusetts Constitutional Convention 1917. Bulletin No. 16, The Selection and Retirement of Judges. Bulletin No. 36, The Removal of Judges in Massachusetts.

Gilbert, Hiram T. A proposed judiciary article for the constitution of 1920 with explanatory notes.

Carter, Orrin N. Methods of Work in Courts of Review. Illinois. Law Review, Vol. XII, No. 4 (1917).

Edwards, George J. The Grand Jury. Philadelphia, 1906.

Singewald, K. Stability of States. Johns Hopkins University Studies. Vol. 35 (1915).

Hall, James Parker. The Selection, Tenure and Retirement of Judges. American Judicature Society Bulletin X (1915).

Kales, Albert M. Methods of Selecting and Retiring Judges. American Judicature Society Bulletin VI (1914).

Taft, William H. The Selection and Retirement of Judges. Report American Bar Association, 1913.

Pound, Roscoe. Regulation of Judicial Procedure By Rules of Court. Illinois Law Review, X, 163 (1915).

American Judicature Society. Bulletin IV, First Draft of an Act to Establish a Model Court for a Metropolitan District. Bulletin VII, First Draft of a State-Wide Judicature Act. Bulletin VIIA, A Revised Draft of a State-Wide Judicature Act.

Rosenbaum, Samuel. Rule Making Authority in the English Supreme Court. Boston, 1917 (University of Pennsylvania Law School Series No. 4).

APPENDIX NO. 2. ILLINOIS CONSTITUTIONAL
PROVISIONS.

Article VI.

JUDICIAL DEPARTMENT

§ 1. The judicial powers, except as in this article is otherwise provided, shall be vested in one Supreme Court, circuit courts, county courts, justices of the peace, police magistrates, and in such courts as may be created by law in and for cities and incorporated towns.

SUPREME COURT

§ 2. The Supreme Court shall consist of seven judges, and shall have original jurisdiction in cases relating to the revenue, in mandamus and habeas corpus, and appellate jurisdiction in all other cases. One of said judges shall be Chief Justice; four shall constitute a quorum, and the concurrence of four shall be necessary to every decision.

§3. No person shall be eligible to the office of judge of the Supreme Court unless he shall be at least thirty years of age, and a citizen of the United States, nor unless he shall have resided in this State five years next preceding his election, and be a resident of the district in which he shall be elected.

§ 4. Terms of the Supreme Court shall continue to be held in the present grand divisions at the several places now provided for holding the same; and until otherwise provided by law, one or more terms of said court shall be held, for the Northern division, in the city of Chicago each year, at such times as said court may appoint, whenever said city or the county of Cook shall provide appropriate rooms therefor, and the use of a suitable library, without expense to the State. The judicial divisions may be altered, increased or diminished in number, and the times and places of holding said court may be changed by law.

§ 5. The present grand divisions shall be preserved, and be denominated Southern, Central and Northern, until otherwise provided by law. The State shall be divided into seven districts for the election of judges, and until otherwise provided by law they shall be as follows: First District-The counties of St. Clair, Clinton, Washington, Jefferson, Wayne, Edwards, Wabash, White, Hamilton, Franklin, Perry, Randolph, Monroe, Jackson, Williamson, Saline, Gallatin, Hardin, Pope, Union, Alexander, Pulaski and Massac.

Second District.-The counties of Madison, Bond, Marion, Clay, Richland, Lawrence, Crawford, Jasper, Effingham, Fayette, Montgomery, Macoupin, Shelby, Cumberland, Clark, Greene, Jersey, Calhoun and Christian.

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