
    Robert Rohl, Sr. v. State of Illinois.
    
      Opinion filed January 30, 1919.
    
    Mistake of Law — not entitled to moneys paid under. Moneys voluntarily paid under a mistake of law cannot' be recovered.
    
      Same — under unconstitutional statute, no recovery. Moneys voluntarily paid under a mistake of law cannot be recovered even though the law under which it is paid is afterwards declared unconstitutional. Yates v. Royal Ins. Go., 200 111. 202.
    
      Payment — when not made under protest. Payment made after threat to bring suit for non-payment is not a payment made under protest.
    Edward J. Brundage, Attorney General, for State.
   In this case, claimant seeks to recover $400.00 for money he claims to have paid for his wife Anna Rohl while she was confined in the Southern Illinois Hospital for the Insane at Anna, Illinois, under the Act to revise the “law for charities, approved June 11, 1912.

The State, through the Attorney General, has filed a general demurer to the declaration and sets up in the brief that the statute under which this money was claimed to hav.e been paid, was declared unconstitutional and that as a matter of law, the payments claimed to have been made were voluntary, made under mistake of law, and cannot be recovered back. From the declaration and evidence in this case, it appears to us that these payments were voluntary and that they were not made under protest. The claimant sets forth that the managing board of the Anna State Hospital threatened him with suit, and that under such threat, he paid the sums of money. Payment of money under threat of commencing suit, is not a payment under protest, and it does not appear from the evidence or the declaration that any legal duress was exercised. Claimant should have resisted the payment, as was done in the Miles case, 278 Ill., 174, wherein this law was declared unconstitutional.

The Supreme Court in the case of the People v. Foster, 133 Ill., page 509, has held that where money is voluntarily paid under a mistake as to the law and under a claim of right, it cannot be recovered back, and in the case of Yates v. The Royal Insurance Company, 200 Ill.., page 202, the Supreme Court of this State decided that the mere fact that the statute imposing a tax is unconstitutional and the tax for that reason illegal, does not authorize recovery of the amount paid if it was paid voluntarily. This Court, in the Home Life Insurance Company case, in which an opinion was filed December 19, 1908, held that there can be no recovery of payments made under a mistake of law.

This Court, at this term, in the case of Popham, conservator, against the State, which was a case brought to recover money paid under this unconstitutional statute, held there was-no right of recovery.

The demurrer to the declaration is therefore sustained and the claim rejected.  