(No. 2081

#### W. C. Reynolds, Doing Business Under the Name and Style of Reynolds Oil Company, Claimant, vs. State of Illinois, Respondent.

Opinion filed March 12, 1934.

Harry Typer, for claimant.

Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.

Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks to recover a refund of One Hundred Twenty-seven and 50/100 Dollars ($127.50) gas tax paid on 4,250 gallons, reported over a period of nine months as sold, but which it is now claimed was lost by a leaky tank.

Respondent, by the Attorney General, files its motion to dismiss the claim as being supported by no legal rights.

The tax was apparently voluntarily paid. A discount and deduction for a certain loss of 1,942 gallons by leakage, was made during the period now complained of.

It is well settled in this State that a tax voluntarily paid cannot be recovered back in the absence of a statute providing for such a recovery. It is also well settled that the fact that the statute under which the tax was levied and collected was unconstitutional will not authorize an action for its recovery by the party paying it. (Oppenheimer & Co. vs. State, 6 Ct. Cl. 465; Board of Education vs. Toennigs, 297 Ill. 469.) The fact that the State had no legal right to demand the tax and claimant was under no legal obligation to pay it is of no consequence unless the payment was compulsory in the sense of depriving claimant of its free will. (Ill. Glass Co. vs. Chicago Tel. Co. 234 Ill. 535; School of Domestic Arts vs. Harding, 331 Ill. 330; Western Electric Co. vs. State, 6 Ct. Cl. 414.)

Wm. Wrigley Jr. Co. vs. State, 7 C. C. R. 153.

*65To depart from the rule under the facts herein alleged would be an unwarranted and arbitrary act upon the part of this court.

The motion to dismiss is allowed and claim is dismissed.