19 N.E.2d 933 | Ill. | 1939
This is an original petition for mandamus filed on leave of this court by forty-seven petitioners against defendants, as Director of Finance, Auditor of Public Accounts and State Treasurer, to compel the issuance of credits, or cash refunds, of various amounts of occupation taxes erroneously paid by the petitioners and erroneously collected by the Department of Finance. Petitioners are contractors and their claim to refunds is based on decisions of this court holding that construction contractors are not liable for the tax. (Herlihy Mid-ContinentCo. v. Nudelman,
Defendants argue, however, that an action for recovery of a tax is controlled by equitable principles, and the court will not enforce a statute providing for refund of a tax though the taxpayer has a clear right thereto, if such taxpayer is not, in justice and good dealing, entitled to recover. They say that to permit petitioners to recover would result in their unjust enrichment either at the expense of the State, which is entitled to the tax, or at the expense of the materialmen who, in selling materials to the petitioners, had been led to believe that they would not be required to pay a tax with respect thereto, and they cite United States v. Helvering,
In this case it does not necessarily follow, because these petitioners are allowed to recover, that the materialmen either would benefit thereby or were liable for the tax. Nor is any privity shown to exist between the petitioners and such materialmen, as in the case of a trustee and his cestui. While the rule in this State is that a writ of mandamus is not a writ of right, (People v. Cohen,
The writ is awarded and the Director of Finance is directed to issue cash refunds, or credit memoranda, in accordance with the views herein expressed.
Writ awarded. *33