(No. 1099

#### Electric Household Utilities Corporation, formerly Hurley Machine Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

Opinion filed May 26, 1927.

Paul O’Donnell, for claimant.

Oscar E. Carlstrom, Attorney General ; David J. Kadyk, Assistant Attorney General, for respondent.

Mr. Justice Leech

delivered the opinion of the court:

The claim in this case is for excess annual franchise taxes paid in the years 1920, 1921 and 1922. The excess amount paid in each of those years was as follows:

> In 1920 .................................$6,568.00

> In 1921 ................................ 5,234.58

These sums aggregate $11,802.58. In addition thereto, the claimant paid in 1922 the sum of $2,749.92. These figures are not in dispute and represent the excess amount paid under the construction of the- statute as given by the Supreme Court of Illinois- in the case of People, ex rel, Roberts & Schaefer v. Emmerson, 305 Ill. 348. The same questions are involved in this case as were involved in the Altorfer Brothers case and our conclusions with reference to them are the same.

There is, however, an additional defense in this case which did not occur in the Altorfer case and that is the defense of the Statute of Limitations. As to the first two items, aggregating somewhat over $11,000, the money was paid more than five years prior to the filing of the claim. For the reasons which we have heretofore given at length in the case of Booth Fisheries Company, we are constrained to disallow that part of the claim of this claimant. We, however, do allow and award to the claimant the sum of $2,749.92, paid in 1922, which sum we believe the State in equity and good conscience should pay.