Adams v. Nudelman

• Decision Date: 16 December 1940
• Docket Number: No. 25957.,25957.
• Citation: 375 Ill. 217,30 N.E.2d 742
• Parties: ADAMS et al. v. NUDELMAN, Director of Finance, et al.
• Court: Illinois Supreme Court

375 Ill. 217

30 N.E.2d 742

ADAMS et al.

v.NUDELMAN, Director of Finance, et al.

No. 25957.

Supreme Court of Illinois.

Dec. 16, 1940.

Suit by Alva F. Adams and others against S. L. Nudelman, director of finance, and others to secure repayment of amount alleged to have been erroneously paid to the Department of Finance under the Retailers' Occupation Tax Act. From a decree dismissing the complaint, plaintiffs appeal.

Affirmed.Appeal from Circuit Court, Sangamon County; L. E. Stone, judge.

George E. Drach and Lowell D. Ryan, both of Springfield, for appellants.

John E. Cassidy, Atty. Gen. (W. F. Gray, of Springfield, of counsel), for appellees.

SHAW, Justice.

The complaint in this case, which was filed in the circuit court of Sangamon county, is joined in by forty-eight contractors, each of whom is alleged to have made erroneous payments to the Department of Finance under the provisions of the Retailers' Occupation Tax Act. The total of the amount so alleged is approximately $115,000, and it is further alleged that each of these payments was found to be erroneous under a decision of this court in Herlihy Mid-Continent Co. v. Nudelman, 367 Ill. 600, 12 N.E.2d 638, 115 A.L.R. 485. It is further alleged that none of the plaintiffs has any further tax liability and that a credit against present or future payments would be valueless; that demand has been made upon the director of the department for the approval of claims for refunds and upon the State Auditor to issue and sign warrants for them but that the director and State Auditor refused to do so. It is the prayer of the complaint, which appears to be a combination of injunction and mandamus, (1) that the Director of Finance be enjoined from paying into the State Treasury any moneys collected under the Retailers' Occupation Tax Act until a fund is created sufficient to pay the amounts due to the plaintiffs, and that the director be ordered to pay such refunds out of such accumulated funds; (2) in the alternative, that refunds be made in the usual way from funds heretofore deposited by the director; and (3) in the alternative, that the director be ordered to approve the claims for payment and the State Auditor be required to pay them. The cause was submitted on stipulation and answer, resulting in a decree dismissing the complaint from which an appeal is taken directly to this court.

Appellants rely on section 6 of the Retailers' Occupation Tax Act (Ill.Rev.Stat.1939, chap. 120, par. 445) which is as follows: ‘If it shall appear that an amount of tax, penalty, or interest has been paid which was not due under the provisions of this Act, whether as the result of a mistake of fact or an error of law, then such amount shall be credited against any tax due, or to become due, under this Act from the person who made the erroneous payment, or such amount shall be refunded to such person by the Department.’ They insist, in their argument, that the decision of the trial court reads into the foregoing section of the statute the following clause which is not there: ‘Such amount shall be refunded to such person by the department out of funds which may hereafter be appropriated by the General Assembly for this...