Clauson v. Dep't of Finance, No. 26190.

CourtIllinois Supreme Court
Writing for the CourtSMITH
Citation36 N.E.2d 714,377 Ill. 399
PartiesCLAUSON v. DEPARTMENT OF FINANCE.
Docket NumberNo. 26190.
Decision Date17 September 1941

377 Ill. 399
36 N.E.2d 714

CLAUSON
v.
DEPARTMENT OF FINANCE.

No. 26190.

Supreme Court of Illinois.

Sept. 17, 1941.


Certiorari proceeding by Carl Clauson against the Department of Finance to review a proceeding before the Department of Finance, wherein retailers' occupation tax was assessed against petitioner as member of a copartnership. From an order quashing the writ of certiorari, petitioner appeals.

Affirmed.

[36 N.E.2d 715]

Appeal from Circuit Court, Cook County; Harry M. Fisher, judge.
Freeman & Freeman, of Chicago, for appellant.

George F. Barrett, Atty. Gen. (Albert E. Hallett, Jr., of Chicago, of counsel), for appellee.


SMITH, Justice.

This is an appeal from an order of the circuit court of Cook County quashing a writ of certiorari sued out of that court by appellants to review a proceeding before the Department of Finance under section 12 of the Retailers' Occupation Tax Act. Ill.Rev.Stat.1939, chap. 120, par. 451. The sole contention in this court is that the circuit court erred in quashing the writ of certiorari sued out by appellants to review

[36 N.E.2d 716]

the record of the hearing and proceedings before the Department of Finance.

The appeal was perfected jointly by Carl Clauson, Gunner Clauson and Helmer Clauson. The order of the circuit court appealed from, and also the order of the department making the assessment was entered against said parties jointly. Nevertheless, on the record and in the briefs in this court, Carl Clauson is asserted to be and is treated by the others as the sole appellant. No claim is made that the order appealed from was erroneous as to Gunner Clauson or Helmer Clauson. The only question raised is that the evidence offered on the hearing before the department was insufficient to show that Carl Clauson was a partner in the business conducted as Clauson Bros. Motor Co. There is no claim made that Clauson Bros. Motor Co. was incorporated.

Section 12 of the Retailers' Occupation Tax Act (Ill.Rev.Stat.1939, chap. 120, par. 451) provides that the circuit or superior court of the county in which the hearing by the Department of Finance, under the act, is held, shall have power by writ of certiorari to review all questions of law and fact determined by the department in the administration of the act. In the case of People v. Fisher, 373 Ill. 228, 25 N.E.2d 785, it was held by this court that the writ of certiorari provided for by said section is not the common law writ of certiorari but is a special statutory writ, broader in its scope than the common law writ; that the power of the court under such writ is limited by statute to the power to quash, either the writ, or the return to the writ, and to make such further orders as the statute creating the right to the writ expressly authorizes. By the express language of said section 12, where the court quashes the writ, it is authorized to enter judgment for the assessment made by the department.

Appellee insists that in reviewing the facts by writ of certiorari under said section 12 the court cannot weigh the evidence except for the purpose of determining whether it is sufficient to constitute evidence fairly tending to sustain the order reviewed. Undoubtedly this is the rule applicable to common law writs...

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8 practice notes
  • Superior Coal Co. v. O'Brien, No. 26944.
    • United States
    • Supreme Court of Illinois
    • September 14, 1943
    ...other order the court cannot remand the cause to the Department for the taking of additional testimony. Clauson v. Department of Finance, 377 Ill. 399, 36 N.E.2d 714;People ex rel. Nelson Bros. Storage & Furn. Co. v. Fisher, 373 Ill. 228, 25 N.E.2d 785, 788. As we observed in the case l......
  • Lutkus v. Dep't of Finance, No. 27338.
    • United States
    • Illinois Supreme Court
    • January 18, 1944
    ...the matter upon the Department's record. Superior Coal Co. v. O'Brien, 383 Ill. 394, 50 N.E.2d 453;Clauson v. Department of Finance, 377 Ill. 399, 36 N.E.2d 714;People ex rel. Nelson Bros. Storage Co. v. Fisher, 373 Ill. 228, 25 N.E.2d 785. It follows that the court properly sustained defen......
  • Barrington Press, Inc. v. Morey, No. 83-2501
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 10, 1985
    ...a jury instruction given to distinguish the burden of proof in a civil fraud action from that in a criminal case. 377 Ill. at 383, 36 N.E.2d at 714. Although there has been some question about the appropriate burden to establish fraud under Illinois law, see, e.g., Harry Alter Co. v. Chrysl......
  • Scheuer v. Johns-Manville Products Corp., Gen. No. 10044.
    • United States
    • United States Appellate Court of Illinois
    • February 3, 1947
    ...has adhered to the rule announced in the Abel case. Superior Coal Co. v. O'Brien, 383 Ill. 394, 50 N.E.2d 453;Clauson v. Dept. of Finance, 377 Ill. 399, 36 N.E.2d 714;People v. Fisher, 373 Ill. 228, 25 N.E.2d 785. Although it appears from these cases last cited that the Supreme Court has no......
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8 cases
  • Superior Coal Co. v. O'Brien, No. 26944.
    • United States
    • Supreme Court of Illinois
    • September 14, 1943
    ...other order the court cannot remand the cause to the Department for the taking of additional testimony. Clauson v. Department of Finance, 377 Ill. 399, 36 N.E.2d 714;People ex rel. Nelson Bros. Storage & Furn. Co. v. Fisher, 373 Ill. 228, 25 N.E.2d 785, 788. As we observed in the case l......
  • Lutkus v. Dep't of Finance, No. 27338.
    • United States
    • Illinois Supreme Court
    • January 18, 1944
    ...the matter upon the Department's record. Superior Coal Co. v. O'Brien, 383 Ill. 394, 50 N.E.2d 453;Clauson v. Department of Finance, 377 Ill. 399, 36 N.E.2d 714;People ex rel. Nelson Bros. Storage Co. v. Fisher, 373 Ill. 228, 25 N.E.2d 785. It follows that the court properly sustained defen......
  • Barrington Press, Inc. v. Morey, No. 83-2501
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 10, 1985
    ...a jury instruction given to distinguish the burden of proof in a civil fraud action from that in a criminal case. 377 Ill. at 383, 36 N.E.2d at 714. Although there has been some question about the appropriate burden to establish fraud under Illinois law, see, e.g., Harry Alter Co. v. Chrysl......
  • Scheuer v. Johns-Manville Products Corp., Gen. No. 10044.
    • United States
    • United States Appellate Court of Illinois
    • February 3, 1947
    ...has adhered to the rule announced in the Abel case. Superior Coal Co. v. O'Brien, 383 Ill. 394, 50 N.E.2d 453;Clauson v. Dept. of Finance, 377 Ill. 399, 36 N.E.2d 714;People v. Fisher, 373 Ill. 228, 25 N.E.2d 785. Although it appears from these cases last cited that the Supreme Court has no......
  • Request a trial to view additional results

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