(No. 1248

#### Walworth Company, Claimant, vs. State of Illinois, Respondent.

Opinion filed January 11, 1928.

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:

This is an action commenced by the Walworth Company, a corporation, organized and existing under the laws of the State of Massachusetts, and duly admitted to transact business in the State of Illinois, for a refund of $10,992.52, which sum their declaration alleges was erroneously, through error on the part of the state officers, turned over to the State Treasury. This sum is made up of four items, as follows:—

1. $1,083.97 paid in June, 1925, franchise fees.

2. $ 332.83 paid December 21, 1925.

3. $3,864.00 paid December 21; 1925.

4. $4,908.80 paid December 21, 1925.

Claimant further alleges in its declaration that in January, 1925, while the Secretary of State for the State of Illinois, still held the sum of $9,105.63, composing items 2, 3, and 4, above, complainant filed its • bill in the Circuit Court of Sangamon County, alleging the law under which said sums were assessed against it to be unconstitutional and void and praying an injunction against Louis L. Emmerson, the Secretary of State, for the State of Illinois, from turning over to the State Treasury said sum, and further praying that the defendant, Louis L. Emmerson, be ordered to turn over and refund to complainant, said sum; that the court granted a temporary injunction restraining the defendant, Louis L. *55Bmmerson, Secretary of State, from paying over to the State Treasury the sum of $8,029.23 of said total sum, but refused to grant an injunction restraining the payment over of $1,-076.40; that subsequently the Supreme Court of the State of Illinois, declared the law under which said sums were levied and assessed against claimant and so paid by this claimant to be unconstitutional and void and that thereupon, upon application by this claimant, the Circuit Court of Sangamon County entered an order commanding the defendant, Louis L. Bmmerson, as Secretary of State of the State of Illinois,, to pay over and refund to this claimant the sum of $8,029.23, previously enjoined by said court; that said injunction was. duly served upon said Secretary of State, and that subsequently the order of the court commanding him to refund said sum of $8,029.23 was also served upon said defendant,, Louis L. Bmmerson, as Secretary of State of the State of Illinois; that in July, 1926, it was again assessed another franchise tax for the year beginning at that time under said invalid law and that it paid the sum so assessed under protest and proceeded to file an injunction bill to restrain the Secretary of State from paying* same over to the State Treasury and to require the Secretary of State to refund said fund; that at said time, in July, 1926, it appeared to its attorneys and also to the Attorney General for the State of Illinois, to be best and most convenient for all parties concerned to consolidate the suit already filed, covering the 1925 tax payment with the new suit proposed to be filed covering the 1926 tax payment; that it accordingly prepared a new bill, through its attorneys and set up the necessary allegations with reference to taxes paid in each of said years, and thereupon it filed said bill and secured a temporary injunction covering the amount already in the hands of the Secretary of State for the year 1925, -and previously tied up by an injunction as well, as the additional amount paid in the year 1926 and that it thereupon dismissed its bill after service of the new injunction writ, upon said Secretary of State; that certain confusion arose because of its procedure and the Secretary of State was erroneously advised that it was no longer necessary to hold the sum of $8,029.23, and thereupon said Secretary of State paid said sum over to the State Treasury of the State of Illinois, in violation of the injunction issued by the Circuit Court of Sangamon County; that claimant had no notice of this action *56or of the error until July, 1927, after the law had been declared unconstitutional, and after the Circuit Court of Sangamon County had ordered a refund of a total sum, including said sum of $8,029.23,- and claimant alleges that this money would have been paid to it about July 1st, 1927, except for said error and mistake on the part of the State Officer, and therefore claims in addition to said sum, interest thereon at 5%- per annum, amounting to $802.92. In the second count in said declaration, claimant alleges that it paid, at the same time as the payment of $8,029.23 referred to in the preceding account, the additional sum of $1,076.40, which additional sum, although paid under protest and duress was not tied up by injunction of the Circuit Court of Sangamon County, and that it paid in the year 1925, as franchise taxes on its original capitalization the sum of $1,083.97, but that said sum was not tied up by injunction.

Motion of claimant to withdraw from its original claim the item of $1,083.97, and to an immediate award of $9,908.55 was filed December 17th, 1927. Demurrer of the Attorney General of the State of Illinois to the declaration of the claimant is sustained as a matter of law.

An answer of the Attorney General to said declaration, recommends the payment to claimant of $9,908.55 and we, believing that in equity and good conscience, the claimant is entitled to said sum, we accordingly award claimant said sum of $9,908.55.