(No. 852

Claimant awarded $3250.00.)

#### Illinois Power & Light Corporation, Claimant, *vs.*State of Illinois, Respondent.

*Opinion filed April 16, 1925.*

Franchise *tax*— when *claimant entitled to refund.*Where there has been a consolidation of corporations, and a franchise tax is afterwards levied and assessment made upon each corporation consolidated, and' paid, and at the time of payment one of the corporations was not in existence, claimant is entitled to a refund of the tax paid on the non-existent corporation.

Henry I. Green, for claimant.

Edward J. Brundage, Attorney General ; George C. Dixon, Assistant Attorney General, for respondent.

Mr. Justice Leech

delivered the opinion of the court:

The claimant, the Illinois Power & Light Corporation, a corporation, by Henry I. (Green, its general solicitor, files its declaration herein, setting forth that it has a lawful claim against the State of Illinois; that the claimant is a corporation organized under the laws of the State of Illinois; that claimant is engaged in the ownership and operation, among other things, of divers and sundry public utility properties in the State of Illinois, and was formerly organized as a merger or consolidation of eighteen predecessor Illinois public utility corporations, among which was a public utility corporation known and designated as Southern Illinois Light & Power Company; that pursuant to the annual report, filed in the month of February, 1923, with the Secretary of State of the State of Illinois, by said Southern Illinois Light & Power Company, there was levied and assessed the sum of $3,250.00 as and for franchise tax for the year 1923, against said Southern Illinois Light & Power Company, based upon an authorized capital stock of said corporation of six million five hundred thousand dollars; that on the 25th of May, 1923, being the date of the consolidation of the above mentioned eighteen public utility corporations into the Illinois Light & Power Corporation, the claimant herein issued its voucher No. 54149 to Louis L. Emmerson, Secretary of State, as follows:

> Organization fee.................................$30,937.65

> Advance franchise tax........................... 41,250.20

> Total

> $72,187.85

*105Claimant further says that said payment of franchise tax on said date by said claimant herein, as above stated, was in payment of the unexpired part of the year 1923, as outlined in the statutes of the State of Illinois, and was inclusive of any and all franchise taxes which might be due from the consolidating corporations, among which was the Southern Illinois Light & Power Company; it would therefore appear that the consolidated corporations should not have paid their individual annual franchise tax for the year 1923 to the State of Illinois, in view of the fact that the consolidation and merger of the above mentioned public utility corporations into the Illinois Power *&*Light Corporation took place prior to July 1, 1923, being the due date for payment of annual franchise taxes to the State of Illinois.

The amount of $3250.00 was paid to the State of Illinois by said Southern Illinois Light & Power Company, erroneously, to the Secretary of State of the State of Illinois.

The Attorney General of the State of Illinois files a statement wherein he advises the court that the Secretary of State has informed him that there was not in existence a Southern Illinois Power *&*Light Company at the time said fee was paid, arid that the State is not entitled to said sum of $3250.00, said statement being signed by Edward J. Brundage, Attorney General.

It is evident that the State of Illinois was erroneously paid the sum of $3250.00, which, as a matter of law, it was not entitled to receive.

As a matter of equity and good conscience, the court finds that said claimant is entitled to an award or refund of the amount of $3250.00.

The court therefore awards the claimant the sum of $3,250.00. '