City of Chicago v. Sperbeck ( 1897 )

Mr. Justice Waterman

delivered the opinion of the Court.

In County of La Salle v. Simmons, 5 G-il. pp. 515, 516, it was proved by the plaintiff that, in the year 1837, the county commissioners of La Salle county gave notice that they would grant a license for a ferry across the Illinois river, at the town of Ottawa, to the person that would denote the largest sum of money to the county; that up to that time the plaintiff had kept the ferry, and was an applicant for a license to continue the same; that on the day the license was granted, several offers were made for the franchise, when the plaintiff finally bid the sum of $500. The plaintiff then produced in evidence a book, which the county clerk swore was a book belonging to his office, in which the accounts of the treasurer were kept, and in which book the treasurer was charged, under date of July, 1837, with the receipt of $500 from William Simmons as a donation to the county. As to the state of facts the Supreme Court said :

“ What was the condition of the plaintiff, and what effect did this unauthorized arrangement of the commissioners have upon him ? He had been keeping the ferry, and was anxious to secure a continuance of the privilege; but instead of being permitted to have it by complying with the requisitions of the statute, and submitting to pay the highest tax which could be assessed on the franchise, he was compelled by the force of circumstances, over which he had no control, to advance a large sum of money in order to obtain the license. The illegal conduct of. the commissioners put the plaintiff in their power, and taking advantage of his peculiar situation, they obtained money from him to which the county had not the shadow of right. The money was unlawfully and wrongfully obtained, and could not, in equity and good conscience, be retained by the county. The fact that the commissioners chose to call it a donation, does not change the real character of the transaction. It was merely a device to obtain 'money which the county had not the slightest right to demand. The money was exacted from the plaintiff under circumstance that strip the transaction of all the features of a voluntary payment. It was in law and fact a compulsory payment, as much so as the payment of usurious interest, which the lender exacts from the borrower, or the payment of illegal charges, which an officer demands as the condition of the performance of official services.”

A judgment in this case, for the plaintiff, for the amount so paid by him, together with interest thereon, was sustained.

To the same effect is the case of Harvey and Boyd v. The President et al., of the Town of Olney, 42 Ill. 336. In this case the money was paid under protest, whereas, in County of La Salle v. Simmons, it was paid without protest.

In C. & A. R. R. Co. v. C. V. & W. Coal Co., 79 Ill. 121, a recovery of excessive charges for carrying coal was approved, the court saying: “ It can hardly be said these enhanced charges were voluntarily paid by appellees. It was a case of ‘ life or death ’ with them, as they had no other means of conveying their coals to the markets offered by the Illinois Central, and were bound to accede to any terms appellants might impose. They were under a sort of moral duress, by submitting to which appellants have received money from them, which, in equity and good conscience, they ought not to retain.” Ripley v. Gelston, 9 Johns. 201; Taylor v. Taylor, 20 Ill. 650; Watson v. Woolverton, 41 Ib. 241.

• In Bradford v. Chicago, 25 Ill. 411, the recovery of money paid, had in satisfaction of a void special assessment, was sustained, the court saying: “ When, therefore, a party, not liar ble to taxation, is called on peremptorily to pay upon such a warrant, and he can save himself and property in no other way than by paying the illegal demand, he may give notice that he so pays it by duress, and not voluntarily; and, by showing that he is not liable, recover it back as money had and received.

In Prickett v. Madison County, 14 Ill. App. 454, the court, reviewing the authorities, said: “ The principle to be deduced from these cases and the authorities cited in them seems to be that where, by reason of the peculiar facts, a reasonably prudent man finds that in order to preserve his property or protect his business interests, it is necessary to make payment of money, which indeed he does not owe, and which in equity and good conscience the receiver ought not to retain, he may recover it, and so also when such' a payment .is made in ignorance of material facts which, if known, would have led him to refrain from making the payment.”

We do not regard the fact that appellee paid without protest as material. Meek v. McClure, 49 Cal. 623.

The judgment of the Circuit Court is affirmed.

Mr. Justice Shepard.

This case seems to be, in principle, exactly like that of Holder v. City of Galena, 19 Ill. App. 409, the reasoning of which commends itself to me, and I am only restrained from dissenting here in the hope that the Supreme Court may be afforded an opportunity to pass upon the question.