(No. 2740

#### K. H. Waterstreet, Claimant, vs. State of Illinois, Respondent.

Opinion filed December 10, 1935.

K. H. Waterstbeet, pro se.

Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.

*112Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks an award of Twenty Six and 55/100 Dollars ($26.55) for damages to claimant’s automobile on August 28, 1935 by reason, as he alleges, of being struck by a State highway maintenance truck No. 361 at Elburn, Illinois, driven by one Charles Nelson.

The Attorney General has filed a motion on behalf of respondent to dismiss the claim on the ground that the State cannot be held to respond for the torts or negligent acts of its employees. If the facts are as represented in the complaint the employee in question should be compelled to pay for the damages caused, but this court has not jurisdiction to make such an order, and neither can an order be properly entered against the State as the rule of respondeat superior does not apply thereto. Similiarly as stated in Minear vs. State Board of Agriculture, 259 Ill. 549 and in Bucholz, Admrx. vs. State, 7 C. C. R. 241.

> "In the construction and maintenance of its roads the State acts in a governmental capacity and in the exercise thereof does not become liable for the malfeasance, misfeasance or negligence of its officers or agents in the absence of a statute creating such liability.”

The motion of the Attorney General is allowed and the claim is dismissed.