(No. 1205

#### Eli Watkins, Claimant, vs. State of Illinois, Respondent.

Opinion filed February 13, 1929.

Rehearing denied, March 28, 1929.

Bollo Six, for claimant.

Oscar E. Carlstrom, Attorney General; Frank B. Eagle-ton, Assistant Attorney General, for respondent.

Mr. Justice Leech

delivered the opinion of the court:

Claimant asks $2,250.00 damages alleged to have been caused by the negligent and wrongful changing of the natural *173course of Hadley Creek branch and the construction of a grade and bridge in a wrongful and negligent manner adjacent to and across his land by the Division of Highways while improving State Bond Route 36. The contention of claimant is that the change of the channel of the creek and the construction of an inadequate bridge caused claimant’s lands to be flooded and damaged.

Claimant conveyed to the State the right of way for the road across his land, the deed being in evidence. This deed shows it was executed in consideration of $850.00 and the benefits resulting from the maintenance of the road and recites that the State is released “from' any and all damages resulting from said channel changes.” Having released all damages resulting from the change in the channel of the creek he cannot now maintain an action for them.

But if claimant had not released the State from such damages, he could not recover an award for them. His declaration, his evidence and his argument are all on the theory that the Division of Highways was guilty of negligence in changing the channel of the creek and in constructing an inadequate bridge. The question of the liability of the State for the negligent conduct of its officers and agents has frequently been before this court. In the cases of William H. Peterson v. State and J. A. Peterson v. State, opinion filed September 11, 1928, the same question was involved as in this case, and we there said: “It is apparent that the damages claimed are based on the negligence or wrongful conduct of the agents of the State in constructing these roads. The State is never liable for the wrongful conduct or negligence of its officers or agents. In Kinnare v. City of Chicago, 171 Ill. 332, on page 335, our Supreme Court announced that doctrine in the following language: ‘The State acts in its sovereign capacity, and does not submit its action to the judgment of courts and is not liable for the torts or negligence of its agents, and a corporation created by the State as a mere agency for the more efficient exercise of governmental functions is likewise exempted from the obligation to respond in damages, as master, for negligent acts of its servants to the same extent as is the State itself, unless such liability is expressly provided by the statute creating such agency. Town of Waltham v. Kemper, 55 Ill. 346; Elmore v. Drainage Comrs., 135 id. 269; Symonds v. Clay County, 71 id. 355; *174 Town of Odell v. Schroeder, 58 id. 353; Wilcox v. City of Chicago, 107 id. 334; Nagle v. Wakey, 161 id. 387; 15 Am. & Eng. Ency. of Law, p. 1164; 2 Dillon on Mun. Cory., p. 1193.’ The Department of Public Works and Buildings is one of the departments of the State government. The Division of Highways of that department has the construction and maintenance of State roads in its charge. If in the performance of the duties required of them in the construction of a State road the employees commit a wrong whereby the person or property of a citizen is injured the tort is that of the man or men who do the unlawful act, whether they be public officers or not, and cannot be regarded as the act of the State. (Cooney v. Town of Hartland, 95 Ill. 516.) We know of no exception to this rule. In Gibbons v. United States, 8 Wall. 269, the court said, ‘No government has ever held itself liable to individuals for the misfeasance, laches or unauthorized exercise of power by its officers and agents, however gross. ’ In Jorgensen v. State, 2 Ct. Cl. 134, in discussing this question this court said: ‘This proposition of law, so well established, has been consistently followed by this court in the adjudication of all claims that have ever comp before it, and applies with equal force to the cause now on hearing. ’ Many other cases mig’ht be cited announcing the same principle of law, but we deem it unnecessary to do so. It is perfectly clear that neither of the declarations states a cause of action against the State, and unless they do no award can be based upon them.

“Claimants seem to recognize the fact their claims are not legal, for they say ‘they know whatever is allowed them will be allowed out of equity and good conscience. ’ The statute creating the court of claims gives it power to hear and determine all claims and demands, legal and equitable, which the State, as a sovereign commonwealth, should, in equity and .good conscience, discharge and pay. It is plain from the language of this statute that no claim against the State can be allowed by this court unless there is either a legal or equitable obligation of the State to pay it. Before a claimant can have an award against the State he must show he comes within the provisions of some law making the State liable to him for the amount claimed. If he cannot point to any law giving him the right to an award he cannot invoke the principle of equity to secure the award. Where there is *175no legal liability equity cannot create one. (10 R. C. L., sec. 132.) Equity is not the court’s sense of moral right; it is not the power of the court to decide a case according to a high standard of abstract right, regardless of the law; it is a complex system of established law. In Murdock Parlor Grate Co. v. Commonwealth, 24 N. E. 855, the Supreme Judicial Court of Massachusetts construed a statute of that state giving the courts of the state jurisdiction of claims against the commonwealth. The statute in question gave the Superior Court ‘jurisdiction of all claims against the commonwealth, whether at law or in equity. ’ It was contended that this language made the state ‘responsible for a tort committed by its servants. ’ In discussing that question, after citing authorities showing the general rule of non-liability of the state for such torts, the court said: ‘The act we are discussing discloses no intention to create against the state a new, and heretofore unrecognized class of liabilities, but only an intention to provide a judicial tribunal where well-recognized existing liabilities can be adjudicated. Where wrongs are done to individuals by those who are the servants of the government, those injured are not remediless, as such persons may be sued as may be other citizens for the torts which they commit. ’ In Schmidt v. State, 1 Ct. Cl. 76, in discussing this question, this court said on page 79: ‘The law creating this commission does not undertake to create a new liability against the State but provides a method by which claims against the State may be heard before this commission, and the claim rejected or an award made in favor of the claimant.’ And on page 80 of the opinion it is further said: “It is our understanding that in the use of the language ‘to determine the same according to the principles of equity and justice’ is meant and used with a legal signification and that this commission has no power to make an award in any case unless the facts show a legal or equitable claim against the State. We do not believe it was the intention of the Legislature to leave it discretionary with the commission to make an award in favor of the claimant regardless of the question as to whether or not he had a legal claim against the State. We are of the opinion further, that it would be an exceedingly dangerous precedent to hold that the commission had any such discretion.” See also Jorgensen v. State, sufra. To give this statute the construction contended for by *176claimants would result in giving this court power to hold the State liable for the misfeasance and malfeasance of all its officers, the torts of all its servants and agents, and all damages caused by the wrongful exercise of their powers by such officers and agents. We do not believe the Legislature intended any such radical and far reaching change in the law when it enacted the statute creating this court. It follows that the demurrers to the declarations of claimants must be sustained. ’ ’ We deem it unnecessary to cite other cases.

The claim is therefore denied and the cause dismissed.

On March 28,1929, upon petition for rehearing the following additional opinion was filed:

Claimant filed his petition for rehearing in this cause on the 11th day of March, 1929. Claimant’s petition for a rehearing does not set up any matter that was not fully considered by this Court in the original opinion in this cause. Therefore, the petition for rehearing is denied.