I am unable to concur with the majority opinion rendered in this case. There is in my opinion no distinction in principle between this case and previous cases decided by this court. A distinction is sought to be made between the present case andStandard Oil Co. v. Bollinger, 348 Ill. 82. In each case the claimant had an agreement with its customers that should it secure the return of the money it would re-pay them. The manner of re-payment, though differing somewhat, was the same so far as it could affect the principle involved here. In the case before us the customers were named, while in the Standard OilCo. case they were not. Such a difference can in nowise affect the rule of law which should govern. In neither case did the complainant pay out its own money but paid merely the money paid to it by customers who did not protest and who paid the money for the purpose of meeting the tax.
The majority opinion finds that duress existed because of the necessity that the tax be paid to avoid loss of business. The only agreement shown by the evidence was that the complainant would seek the return of the tax. It paid out nothing of its own because of this arrangement except the expense of litigation. It does not seek the return of *Page 612 that expense. These customers, who the majority opinion finds have a direct and financial interest in the present action though they are not made parties to it, did not exact of the complainant that it pay this tax out of its own funds. The fact is that it paid the tax with funds collected from them. If there was any duress at all it resulted not in the payment of the tax by the complainant but in an agreement to prosecute this suit. If it did not win it was to pay nothing to its customers. For business reasons it agreed to give its services to seek the return of this tax for them. In my opinion this case is in nowise distinguishable from the Standard Oil Co.case.
The bill prays that the money be returned to complainant for the use of persons who contributed it. This does not meet the requirements of the rule governing the repayment of money paid under duress, but is, on the other hand, an admission that complainant has no right to this fund and has not paid it under duress. The majority opinion cites no case holding that a payment made under circumstances appearing here constitutes a payment under duress and I know of none. An examination of the cases previously before this court will disclose, either by the evidence or by the bill filed, quite as much compulsion on the complainants there seeking to recover moneys claimed to have been paid under duress as can be inferred from the facts of this case, and yet in all those cases this court has consistently denied recovery. (Standard Oil Co. v. Bollinger,supra; Illinois Merchants Trust Co. v. Harvey, 335 Ill. 284;School of Domestic Arts v. Harding, 331 id. 330; Illinois GlassCo. v. Chicago Telephone Co. 234 id. 535; Yates v. Royal Ins. Co. 200 id. 202; Swanston v. Ijams, 63 id. 165;Stover v. Mitchell, 45 id. 213; Elston v. City ofChicago, 40 id. 514.) The rule laid down in those cases has been consistently adhered to until the present majority opinion, which in my judgment is a radical departure therefrom. The rule heretofore followed in this *Page 613 State is also the rule of other jurisdictions. InChesebrough v. United States, 192 U.S. 253, where an attempt was made to secure a refund of the sum expended in the purchase of revenue stamps from a collector, the court states as the general rule that "even a protest or notice will not avail if the payment be made voluntarily, with full knowledge of all the circumstances and without any coercion by the actual or threatened exercise of power possessed or supposed to be possessed by the party exacting or receiving the payment over the person or property of the party making the payment, from which the latter has no other means of immediate relief than such payment." The rule was again so stated in United States v.Cuba Mail Steamship Co. 200 U.S. 488.
In this case, though it be conceded that complainant was under duress of some sort, it clearly cannot be said to have arisen from threats or coercion of the one to receive the tax, but the so-called duress admittedly arose out of threats of customers who were not the payees of the tax but were to pay it. Such a case is clearly without the rule followed by this and other courts. There is nothing like it in the books. It seems clear to me that the majority opinion opens the door to fraudulent claims of duress professedly exercised by others than the one who is demanding the payment. It is to my mind a novel proposition of law that one may recover as a payment under duress a tax paid because the payor considers it good business to agree with third parties whose money actually paid the tax to pay it and to bring suit to recover it for them. Complainant here was in nowise under any form of duress recognized in the law. It has no interest in the fund here involved and there is no one before the court who has.
In my opinion the decree of the circuit court should be affirmed.
Mr. JUSTICE DEYOUNG, also dissenting. *Page 614