Mr. Thomas H. Flynn, on or about the first day of August, 1916, was drum major of the Sixth Illinois Infantry. In response to orders issued by the, Commander-in-Chief of the Illinois Rational Guard, he reported at Springfield, Illinois, for the annual encampment of this regiment. While attending this encampment he contracted a severe cold owing to the fact that,he was compelled to sleep upon the concrete floor of the hog pavilion in the State Fair Grounds where his regiment was quartered during the encampment. It was necessary for him, being drum major, of the regiment, to sleep near the regimental headquarters for the purpose of properly attending to his dutiess. He did so during the period of his stay in Springfield. Regimental headquarters were situated above the main entrance of. the hog pavilion. Mr. Flynn slept right near the main entrance to the building where the building was open and the rain and wind could beat in. Owing to the fact that he was not provided with a cot and a suitable number of blankets, he took cold, which after his return home, rapidly developed into what the attending physician called “galloping consumption,” from which disease he died on January 31st, 1917. Mr. Flynn enlisted in Company “A”, Sixth Infantry, I. G. H., June 18th, 1886, as a trumpeter; was appointed chief trumpeter June 18, 1887, which rank he held until July, 1907. At that time he was appointed drum major, which appointment he still held at the time of his death. Hei served under General Miles in Cuba and Porto Rico during the Spanish-Ameriean War.
The deceased left surviving him Clara D. Flynn, his ividow, and Blanche Elizabeth Flynn, his daughter, who are the claimants in this case.
This action is based upon Section 11 of Article 16 of the Military and Haval Code of this State, which provides that: In every case *123where an officer or enlisted man of the National Guard or Naval Be-serve shall be injured, wounded or killed while performing his duty as an officer or enlisted man in pursuance of orders from the Commander-in-Chief, said officer or enlisted man, or his heirs or dependents, shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand. Pending action of the Court of Claims, the Commander-in-C’hief is authorized to relieve emergency needs upon recommendation of a Board of three officers, one of whom shall be an officer of the- Medical department.
This Act provides that in order -to have a claim against the State, the party must be injured, wounded or killed while performing his duty. Said Act does not expressly provide for a claim for contracting disease while a member of the National Guard, and the evidence is not entirely satisfactory in this case that the disease of which Flynn died was contracted in the performance of his duty.
The Court is of the opinion that there is no legal liability on the part of the State in this case, and cannot allow this claim as a matter of legal right.
The claim will therefore be rejected.
However, the Court is of the opinion that'there is real merit in this claim outside of the strict rules of law, and as a matter of social justice, this Court recommends to the Legislature an appropriation to claimants of the sum of thirty-five hundred dollars ($3,500.00).