Norcross and Wrenn v. State of Illinois

FREDERIC F. NORCROSS AND HAROLD B. WRENN, EXECUTORS OF THE LAST WILL OF JOHN H. WRENN, DECEASED, v.

STATE OF ILLINOIS.

Opinion filed November 23, 1912.

1. INHERITANCE TAX-refund of-appeal. Claimant, in order to secure a refund of an inheritance tax erroneously fixed by the county judge and paid under protest, should appeal from the order of the judge fixing the tax, to the county court, and obtain a decision in his favor. 2. SAME-demand. Demand for a refund of the tax should be made on the State and county treasurers.

John V. Norcross, for Claimant.

W. H. Stead, Attorney General, for State.

The evidence in this case shows, that on the 13th day of May, 1911, John H. Wrenn died testate at the city of Chicago, Cook County, Illinois, and that the plaintiffs herein were on the 27th day of June, A. D. 1911, duly appointed executors of the last will and testament of said decedent and are now acting as such executors; that after the death of said decedent David E. Shanahan was appointed by the county court of Cook County inheritance tax appraiser, and in his report found that under paragraphs ‘‘A and B’’ of the eighth clause of said last will and testament, the property therein devised and bequeathed was liable to the payment of an inheritance tax of fifty-six hundred twenty-nine and 92-100 ($5,629.92) dollars; that said appraiser filed a written report of his appraisal in the office of the county judge of Cook County, and on the tenth day of November, 1911, the Honorable John E. Owens, judge of said court, fixed the tax upon the various estates created by said will, in accordance with the report of said appraiser, at the sum of twenty-one thousand seven hundred ninety-four and 26-100 ($21,794.26) dollars, which sum included the sum of fifty-six hundred twenty-nine and 92-100 ($5,629.92) [*139] Claimant further states in his petition, that on, towit; the 19th day of October, 1910, he, with two of the supposed stockholders of the said Rockford Tool Company, applied for and obtained a license to incorporate the Rockford Tool Company with a capital stock of fifty thousand ($50,000.00) dollars; that with the application for said license, they remitted the sum of ninety-five ($95.00) dollars, and received a voucher therefor; that further proceedings with reference to the said application of October 19, 1910, were thereafter taken and that a charter was duly issued to the Rockford Tool Company, by the State of Illinois, on said last application, and which charter was filed in the office of the recorder of deeds of Winnebago County, in the State of Illinois, and thereupon said last incorporation became complete.

To this claim, the State of Illinois, by W. H. Stead, Attorney General, filed a general demurrer. The general demurrer is sustained by the Court. The Attorney General in his demurrer contends that the claim in the above entitled matter and the matters therein contained, in manner and form as the above is set forth, are not sufficient in law for the claimant to maintain his action against the State of Illinois. The incorporation fee in this case was voluntarily paid. The provision of the statute in reference to the case at bar, paragraph 10a, chapter 53, Hurd's Revised Statutes, 1908, is as follows: "All companies and corporations hereafter organized under the laws of the State of Illinois, before they shall be permitted to file any papers in the office of the Secretary of State, or make any application for the purpose of becoming incorporated, shall pay to him fees as follows: All companies having a capital stock of * * * $5,000 shall pay the sum of fifty dollars, and all companies having a capital stock of over five thousand dollars shall pay in addition to the said sum of fifty dollars the sum of one dollar for each one thousand dollars of capital stock over $5,000." [*140]

From the foregoing provision of law it is clear, that the payment of the said sum of fifty-five dollars was absolutely required by law, and was necessary to be complied with before the Secretary of State could issue a license to the Rockford Tool Company for the subscription of stock. The retention of the fee by the Secretary of State is in no way conditional upon the Commissioners completing the incorporation. In the case of William McKinley, et al. v. State of Illinois, in the Court of Claims, it was decided that an incorporation fee, voluntarily paid, was not divisible, and that the retention of the incorporation fee by the Secretary of State was in no way made conditional upon the Commissioners taking any further steps.

In section 4 of chapter 32, Hurd's Revised Statutes, 1908, of the State of Illinois, it is provided, that unless the proposed corporation shall be fully organized and proceed to business as provided for in the incorporation Act of the State of Illinois, that such license shall be deemed revoked, and all proceedings thereunder void. In the case at bar, the incorporation license was duly issued on the 20th day of January, 1906, and the incorporation of the said proposed corporation was never completed under the said license, according to the Incorporation Act of the State of Illinois. The Court has no authority to decide cases contrary to the plain provisions of the law. It is stated in the Incorporation Act of the State of Illinois, that the incorporation should be completed within two years after the date of the issuance of the license; otherwise, the license should be deemed revoked and all proceedings thereunder void.

The Court is bound by the foregoing specific provisions of law, and the demurrer is therefore sustained and the case dismissed.