(No. 2580

#### Oscar Peterson, Claimant, vs. State of Illinois, Respondent.

Opinion filed April 28, 1936.

Oscar Peteeson, pro se.

Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.

*209Mb. Justice Yantis

delivered the opinion of the court:

Claimant herein, Oscar Peterson, was the owner in December, 1931 of a portable feed-grinding mill permanently erected on and attached to a one and one-half (1%) ton International Truck, Engine No. 291401. On the 12th day of that month he made application to the Secretary of State for a license for said truck and paid therefor a license fee of Six ($6.00) Dollars. On April 15, 1932 he made application for a license for said motor vehicle and paid the fee therefor in the sum of Twelve ($12.00) Dollars, and was thereafter issued a license for said year. In April, 1933 he again made application for license for said truck .for the latter year and paid as a fee the sum of Twelve ($12.00) Dollars. He now seeks a refund of Thirty ($30.00) Dollars, claiming that said motor vehicle was exempt from the payment of a registration fee under provisions of Section 9, Chapter 95a, Cahill’s Ill. Revised Statutes. Claimant contends that said license fees were paid under a misapprehension of facts as to said truck being such a vehicle as is included in the phraseology of said Section.

Two amendments of the exemptions of certain vehicles from registration as required by Section 9 of the Motor Vehicle Act were made by the Legislature, applicable to the truck in question (1931-1933 biennium) as follows:

> “(1) Provided, that none of the provisions of this Act prescribing or requiring registration shall he construed to include tractors, traction engines, threshing machines, clover hullers, ensilage cutters, corn shredders, corn shelters, hay presses, portable saw mills or other similar vehicles or trailers or semi-trailers used in connection therewith which are used primarily in the agricultural pursuits of the owner thereof or in connection with the agricultural pursuits of others, or used by residents of this State in any kind of road work or vehicles used exclusively for moving well-drilling outfits, but this exception in the proviso shall not exclude from registration trucks, trailers or semi-trailers engaged in transporting agricultural products. Effective July 1, 1931.

> “(2) Provided, that nothing in this Act shall be construed to include tractors, traction engines or other similar vehicles used exclusively in agricultural pursuits, or used by residents of this State, in any kind of road work. Effective January 1, 1932.”

*210The truck on which the license fees in question were paid had attached to it in a permanent manner a feed-grinding mill which, we believe, brought the vehicle within the terms of the exemption above indicated, as said motor vehicle was, from its description, used primarily in the agricultural pursuits of the owner and in connection with the agricultural pursuits of others.

The Attorney General contends that the mistake was purely one of law. Claimant paid the registration fees in question under a mistaken belief that the particular truck involved was subject to registration as an ordinary truck. The type of construction of the truck and the use to which it was put were questions of fact. The law exempts certain types of vehicles from the payment of a license fee, and whether or not this exemption applied in any particular case depends entirely upon the question of fact as to whether the particular truck or vehicle is of the kind and character classified by the law as “exempt.” Such question of fact had to be determined in the first instance by the owner of the truck or vehicle and upon the determination of that fact depends the question of whether or not a license fee is required.

The court is of the opinion that where a tax is paid under a mistake of fact, as evidenced in this case, an award is legally justified for a refund of such amount. (Fowler Mfg. Co. vs. State, 8 C. C. R. 160.)

An award is therefore allowed to claimant in the sum of Thirty ($30.00) Dollars.