*1 certified of such resolution was duly filed, copy properly of the re said section. This is basis the nomination of the certify fusal of respondents It is the contention sec petitioner. petitioner that the action of the re tion 11 is unconstitutional committee thereunder is void. These senatorial publican adversely have been decided questions petitioner Emmerson, which is case of People conclusive of this case.
The writ mandamus is therefore denied.
Writ denied. (No. 19230. Company et al. Defend Trust Illinois Merchants
ants in Error, vs. F. B. Harvey, Plaintiff in Bertha Error. Opinion June 19, filed *2 in plaintiff Platt, & Meyer, Austrian Mayer, error.
Wilson, Templeton, (William & McIlvaine, Hale B. F. SelRridge, Hale, Dammann, Jr., Calvin J. in for defendants error. counsel,) Per : An in this cause filed at the opinion Curiam A February term, petition was filed and rehearing allowed. further consideration the Upon court adheres to the conclusions in reached and it opinion is re-adopted and re-filed.
Mr. delivered court: opinion Stone Justice Defendants in error, trustees of residuary estate of Marshall Field, deceased, filed suit assumpsit court of superior Cook county in error to against plaintiff recover the sum of theretofore them to paid by $8350.97 her. This sum had been on the demand of paid plaintiff error that she reimbursed for income taxes which she
had for a number on rentals years received from .defendants in error, as tenants. The demand for such pay- ment was based on a clause in a lease between the parties. The lease was originally between in error and plaintiff others as lessors and Marshall Field as lessee. Plaintiff error later acquired interests of the other lessors, the suit is her, against, Plaintiff only. error is herein- after also .as designated lessor and defendants error as lessees. as set out in a recovery count of special declaration is that was made under duress.
Under article lease between the parties lessees were to all water taxes, rates, assessments, special all other similar kind which should be every impositions levied in the lease. described imposed upon premises March On lessor demanded the lessees her the income taxes levied and collected against *3 her rents which she government the United by upon States the the to lessees for years had received that were liable to they pay inclusive. The lessees denied that in case Article 2 of the lease provided such taxes. continue days shall sixty on the lessees default part should be the leasehold estate notice thereof, after written on surrender the building lessees should the forfeited and the therefor by being paid the land compensation without the lessees served on the lessor March 9, 1921, lessor. On had they in that in default they that were a notice stating that unless the default taxes, income such paid such notice the service of days after sixty within made good lease to the declare her election exercise lessor would the therein. the reserved rights herself of and avail terminated there- There is also of the declaration. averments These are the the lessees by of a building erection the in averred leasehold This & Co. Field Marshall thereof leasing It is complained $2,000,000. value of the of alleged loss to caused a have would lease forfeiture that the lessees of the entire neither the amount leasehold; other amount, demanded nor ($8350.97) lessor, any was due threat from the but to the lessor’s lessees, owing of forfeiture fear of loss of the leasehold es- possible com- tate, with the lessees were under thereon, building the sum demanded and duress lessor and pulsion paid forfeiture of the lease. The lessor filed gen- prevent eral issue and a was made under plea denying but threats, duress, or on account protest compulsion and which that the facts on which the claim was based a settlement were to the lessees and was had known fully thereof. A of ac- was made satisfaction plea one of the cord and satisfaction and Statute Limitations were also filed. The lease
The facts are without substantially dispute. executed in between error and others plaintiff deceased, lessee, by Marshall now as Field, lessors, avenue, city which certain real estate on Wabash of Marshall of the retail store on which Chicago, part lease to Field. The now was leased stands, Field & Co. an therein contained, was later under extended, option not less than It the lessee to erect building in error the in- Defendants stories eight height. paid and 1915, the rental years come tax on Tax law Income reason of amendment tax for years refused to such they did not owe tax. in the belief they inclusive, the les- in substance stated that of forfeiture The notice the covenants of in default performance sees were the tax levied by failure to reason of the lease by rents the les- paid by government upon United States *4 for the the lease years the terms of under sees to the lessor the lan- and contains following inclusive, to 1919, that unless make hereby you are notified “And you : guage of the covenants and in the performance default your good the of the lessee on part lease contained' in said agreements to be toas the performed rentals herein mentioned, within sixty days after this notice has been the given to you, lessors will exercise their election to declare the term of said lease ended and avail the themselves of rights reserved in said lease the termination upon thereof.” On 6, coun May sel for defendants in error in error the sum paid plaintiff which the $8350.97, included also tax for 1920, $1450 attorney’s fee-and accountant’s fee. At the time $100 this or payment made, was thereto, counsel for defendants prior in error protested they did not owe that amount, any amount, to in that they could not afford plaintiff error, in litigate suit question any involving possible forfeiture of the lease. theAt October this term, 1923, court in Club, v. Illinois Athletic decided Young that a lessee under a lease to the here similar one involved was not income on rent lessor’s taxes suit. received. Thereafter in error filed this defendants The cause tried At the close of all the before a jury. for in error evidence the court a verdict directed plaintiff entered thereon. Ap On judgment appeal was reversed and judgment Court this pellate judgment error for entered that court favor defendants at five full interest amount plus $11,269, including paid, here certiorari. comes cent annum. cause per per were that the first, contends, Plaintiff in error payments under but voluntarily or duress not made under compulsion should if verdict law; second, a mistake of trial error for been defendants have directed whether pay- jury fact court it was a question or duress. made under ment was compulsion that such counsel argue first assignment, Concerning most, at was, duress but made under was not to which law, in mistake or ignorance made their day have had in error could defendants question threat- to restrain a bill in equity either bringing court brought posses- suit defending forfeiture or ened
289 failed to to such remedy pay- and resort sion, having voluntary ment is and compulsory. in the briefs,
The and it is agreed authorities agree, or duress recov may a made under be compulsion payment all rule of law has not at ered. The of this application meant law times been At the common duress uniform. of a reasonable duress of short only person, nothing limb liberty of imminent to life, apprehension danger recover money paid. sufficedas a basis for an action to however, to extended, recognize doctrine gradually became duress, which, duress of as a sort of moral equally property to recover money paid with duress of entitled one person, duress under influence. the ancient doctrine of To-day its and extended relaxed, of of has been person (later goods) and circumstances. so as to admit of of business compulsion Illinois Co. Ill. Glass Co. Chicago Telephone v. fact. question payment primarily
Compulsory as to what will consti rules be laid down No can precise has been tute a though principle compulsory payment In this other of cases in courts. illustrated number owner Ill. City v. Chicago, 349, property Bradford A made refused assessment. demand was to a void pay him warrant authoriz a collector had his hands a who chattels of him sell the on and ing levy goods no owner. It was considered opportunity property other any him himself and property was afforded to save such and, demand, the illegal than way by paying duress have been made under was deemed to being protested, County v. recovered. Sim and could be LaSalle So was mons, pay where a ferryman Gilm. license, of his the renewal charge excessive and illegal com county it was that he found power extricate way had no he which missioners, power and could money himself thus and was compelled Barrett, In therefore recover it. Spaids on il- seized owner had been which of a of oysters shipment attachment legal permitted amount demanded and recover it on the was under du ress. The oysters were in danger spoiling, was con sidered that even he had though recourse to the bond given if attachment, yet action were taken an injury would done his business for he which could not be compen sated and which he could not avoid except by paying *6 illegal demand. and Alton Chicago So Railroad Co. v. Chicago, Vermilion and Coal Wilmington Co. Ill. 121, coal the was allowed to recover excessive company freight the charges railroad imposed which had re company, fused to the coal The carry otherwise. coal company had no other to market its coal and way was delay damaging to its it business, and was therefore held to have under paid Williams, duress. In Pemberton v. the pur chaser under a for the of contract sale land had the re-sold land and his deed, was but his demanding purchaser would him a deed he give unless more grantor paid did. It money, which he was said it was question the he was under moral for the whether duress jury him that no relief was afforded to avoid reason adequate Northwestern v. payment. City Chicago So of it that an 218 Ill. was held Mutual Ins. Co. illegal Life under threat of shut rent, for water which was charge paid be recovered as water, off the of could having ting supply in immediate since the was duress, under payor been paid to the of itself off, the water shut injury of having danger relief such it could tenants, against its before procure and Illinois Railway In Chicago demand. Eastern illegal Commis the Illinois Commerce Miller, Ill. 257, v.Co. bonds refused statute, approve a void sion, following the fee such unless provided the railway company of the amount The railway company paid was statute paid. were that losses recover on ground allowed to railway of company the attempt to follow certain of the commission, the approval its without bonds market would occur before this, apparently, action be could railway taken company commission compel its bonds. approve the other in number hand,
On of cases recovery denied were not payments compulsory. Of this character is City Chicago, Ill. 514, Elston of where the of a void assessment was held payment to have been made The rule was there voluntarily. early laid down that a with made full of all the knowledge facts and circumstances only can ignorance legal rights not be that in recovered; order render a com pulsory must be pressure bear brought upon per son with to interfere the free paying enjoyment of his rights in the sense of person property, him depriving exercise his free will. rule fol generally lowed in cases tax is, statute although imposing the tax be unconstitutional and the tax illegal, cannot recovered if voluntarily or under mistake as to legal with rights facts, knowledge where an oppor is afforded to tunity defeat the tax. School Domestic *7 Arts and Ill. Harding, Science 330; Swanston v. jams, I id. Illinois Glass Co. v. 165; Chicago Telephone Co. supra.
From the Illinois cases and those of cited, other juris- the rule dictions, is deducible that where to one, prevent to his business or injury is person, to property, compelled make which the payment money has party demanding no to receive and no right adequate is afforded opportunity to resist such pajmr effectively is made un- payment, der and can be duress recovered. for in error
Counsel that de- plaintiff argue, however, were in fendants in error not this situation; had they to defeat this demand and avoid opportunity payment either a bill in to the threatened equity enjoin forfeiture a defense of forcible detainer suit. It would seem, or in in should not be however, defendants error compelled on success in rely a forcible detainer action, for the rea- son that if they failed the entire leasehold, amounting value to $2,000,000, would be entirely lost to while them, if they succeeded they would save but little over It $8000. cannot be said that with this difference great between loss gain such a lawsuit a made to payment avoid that situation would be voluntary. It is now conceded that the demand was illegal.
The chief contention of in error plaintiff is that defend- ants in error were entitled to maintain a bill in equity prevent threatened forfeiture. Defendants in error con- cede that if this be true the was not payment compulsory, but they contend that bill would not lie because equity had they at remedy law, is, to and sue to re- —that cover the amount, as and that their they did, this was only at remedy law. We are unable to this adopt reasoning, it decides for defendants in error the main question case, is, whether had a and re- they right —that cover, then uses such decision as logical premise —and that the case should be decided in favor prove payor. This overlooks the fact that the is suit this seeking payor not to avoid a forfeiture but to recover money on an demand. If he avoid the of such illegal may payment. demand but does not to a resorting remedy equity avail himself of such is remedy compulsory a threat even is re-enforced by though pressure to commit injury. error Court contend,
Defendants in Appellate is that there in this authority that the held, State weight a forfeiture such as was neither a to redeem right forfeiture. enjoin or a lease, right in this provided Ford, on Palmer v. rely counsel To sustain this proposition Parker, id. The for Chadwick v. further enjoin prosecution bill in mer was a equity *8 of complainant sub-tenants certain suits dispossess of the forfeiture claiming who was landlord, complainant’s for an lease and The accounting. set bill ground up was that there never had been a declaration of forfeiture by complainant’s landlord against him. Relief was granted the on that the ground did proof not show forfeiture. The lease there considered conferred the upon landlord clear to declare a right forfeiture for rent, non-payment and was said in the that if such had been opinion right dismissed, the properly exercised bill to have been ought holding was, as a declaration of forfeiture was not shown had made a contract parties relating collection rents and the of the completion building by the landlord, and an would accounting involved, equity take In jurisdiction. that case the lessee had taken a long- time lease on vacant real estate and had commenced the con- struction aof thereon. building Becoming embarrassed lack of funds, lessee had rent to permitted ground fall in arrears. A portion however, building, having been and tenants let in, arrangement completed made between the lessor and the lessee that the lessor would his would collect the rentals complete building and agent from the tenants and the same rent and apply It was claimed that a building. expense completing forfeiture had been declared, but this fact was controverted no The court found that there had been forfeiture. been states that had the forfeiture opinion right prop- bill dismissed; exercised the to have been erly ought case for the reason that if forfeiture that was so been taken the lessee’sact in his ten- had properly permitting to his he himself was in ants attorn landlord though pos- session of certain and other facts there parts premises, have that the lessee was en- considered, would shown was not titled relief. forfeiture and equitable proved relief The statement in the that had was granted. opinion of rents been shown the bill forfeiture non-payment dismissed, been while correct as to facts of should have intended to and does not announce a case, rule, was not *9 is as when the supposed, lessor threatens a forfeiture such forfeiture cannot be enjoined equity.
Counsel also argue because of sections 8 and 9 and act a Tenant cannot threat equity enjoin Landlord ened forfeiture. We unable are to with this conten agree tion. These sections of the statute (Cahill’s 1927, Stat. a to under the p. 1575,) give right conditions landlord, therein of, to named, serve notice a forfeiture and termina tion of of the to tenancy. source in the landlord right declare a It forfeiture is not is of the nature of important. relief that it be to the effect may granted obviate equitable of an act which the a other has to right party perform which he in and conscience should not be by equity good to allowed benefit. Equity jurisprudence proceeds a not be shall having legal right party per to of injus mitted avail himself of for purpose or and vindictive injury. harsh tice, fraud, oppression Valley Lehigh — s ec. Story’s 1728; (3 Eq. Jur.—14th ed. Heirs, Railroad Pa. Atl. 385, Co. v. and Stark Searle between any We unable to see difference a right are 74.) other source. any statute and one arising given that the defendant seeking The basis of the relief is he has but which he should not which exercise right to exercise. permitted that in and writers by courts
It is generally recognized,
reason of
for
and re-entry
forfeiture
a lease covenants
an
rent
as
are designed
covenant to
of the lessee’s
breach
Prior to the
of rent.
security
additional
took juris-
II,
equity
courts
of George
statute
the tardy
reason of
forfeitures,
tion
restrain
re-
landlords
the rights
of those courts
process
their
substantial
unsettled,
very
mained undefined
to the
II, chapter
gave
of George
The statute
injury.
in arrears,
rent was
right
months’
when six
lessor,
the recovery
ejectment
a declaration
re-enter
serve
entry,
or
demand
formal
without
demised
premises
he
or if
did
tenant
before
might
judgment,
in equity
he had a
to file a bill for relief
not do so
right
se
within six months after execution for
possession
cured. While
II is not
the statute
in force
George
Illinois, as
those
statutes
only
passed
English
prior
law, yet
are
of our common
this
year
State
part
and elsewhere
favor,
forfeitures are not
with
regarded
where the
of forfeiture
in this
right
is,
instance,
ad
ditional
for rent, its
is within the
security
prevention
pro
care of
tecting
whenever
re
equity
injury
will
wrong
*10
sult from its enforcement.
and Northeastern
(Springfield
Traction
Warrick,
Co.
Ford,
v.
Palmer v.
470;
249
supra; Lehigh
Railroad
Valley
Co. v.
and Stark
Searle
Heirs, supra;
v.
160 Minn.
Follingstad
Syverson,
200 N. W.
Watson,
Abrams
90;
v.
Ala. 524; Taylor
59
on Landlord and
2
Tenant, sec. 495;
Story’s Eq. Jur.
sec. 1315; Atkins v. Chilson, Mass. 112;
v.
Maginnis
Knickerbocker Ice Co. 112
Sheldon,
Wis.
v.
385; Sheets
416;
Wall.
v.
Investment
Ostenberg
Co.
Scotts
Bluff
Cases cited by defendants error holding money and may recovered as a under duress and that there was no relief equitable demand are against tax cases, where statute was and the in- self-executing from failure to therewith was jury arising comply impend- and without to contest before the ing opportunity injury was inflicted. In tax where the is cases, State action put which action be defended tax, may recover the is voluntary of an tax owner, payment illegal
property Arts Domestic cannot be recovered. Science School of v. Harding, supra. threatened that the forfeiture
We are of opinion in error was against cognizable equity, defendants a for- and the result of that, invalid being demand er- to defendants feiture of serious being consequence Defend- the same. would have relieved ror, against equity for such which sixty days apply ants error had aid of time equity relief. There was to secure adequate to them. It follows pay- and that court was open and not made under compul- ment them was voluntary sion or duress. the jury in instructing court right superior in enter- in error and a verdict defendants
return against erred Court verdict, on the Appellate ing judgment in reversing judgment. reversed and Court Appellate
The judgment affirmed. court is of the superior the judgment court reversed, Court superior Appellate affirmed. *11 (No. 19056. vs. People Gerstein, Petitioner, ex rel. Morris S. et al. Governor, Respondents. Small,
Len Opinion June filed People Emmerson, by the decision in is controlled This case Ill. 606. Henry M. petitioner. Ashton, D. General, Carlstrom, Attorney Oscar E. Albert Bayard respondents. Catron, Rodenberg, L.