Cook County v. Illinois Wine & Spirits Co.

• Decision Date: 23 February 1981
• Docket Number: No. 80-0928,80-0928
• Citation: 417 N.E.2d 812,49 Ill.Dec. 122,93 Ill.App.3d 710
• Court: United States Appellate Court of Illinois
• Parties: , 49 Ill.Dec. 122 COUNTY OF COOK, Plaintiff-Appellee, v. ILLINOIS WINE & SPIRITS CO., an Illinois Corporation, and James Edelstein, individually and as President of Illinois Wine & Spirits Co., Defendants-Appellants.

Page 812

417 N.E.2d 812

93 Ill.App.3d 710, 49 Ill.Dec. 122

COUNTY OF COOK, Plaintiff-Appellee, v. ILLINOIS WINE & SPIRITS CO., an Illinois Corporation, and James Edelstein, individually and as President of Illinois Wine & Spirits Co., Defendants-Appellants.

No. 80-0928.

Appellate Court of Illinois, First District, First Division.

Feb. 23, 1981.

Rehearing Denied March 23, 1981.

Morton Siegel, Michael Moses and Morton Siegel, Ltd., Chicago, for defendants-appellants.

Richard M. Daley, State's Atty. of Cook County, Chicago (Paul P. Biebel, Jr., and Michael Sheridan, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

O'CONNOR, Justice:

County of Cook (plaintiff) filed in the circuit court of Cook County a complaint for mandamus against defendants, Illinois Wine & Spirits Co. (Illinois Wine) and James Edelstein, individually and as president of Illinois Wine, directing defendants to produce all corporate books, records and reports in their possession and control for inspection by agents of plaintiff. The complaint was brought under a Cook County Ordinance to Provide For a Tax on the Retail Sale of Alcoholic Beverages approved May 5, 1975, as amended (the Ordinance). Plaintiff also sought the imposition of a penalty against each defendant pursuant to section 5 of the Ordinance and any further relief the court deemed equitable and just.

The complaint alleged: Illinois Wine is a wholesale alcoholic beverage dealer located in Plainfield, Illinois, and James Edelstein is its president. During 1976, 1977 and 1978, Illinois Wine "conducted its business within the County of Cook by selling and delivering alcoholic beverages to retail alcoholic beverage dealers located within the County of Cook." The Ordinance (section 4) provides: "The Bureau or such other agency of Cook County Government as it shall designate shall have the right to inspect all books, records, and reports of all retail and wholesale dealers as defined in this Ordinance."

The Ordinance (section 8(d)) defines a wholesale alcoholic beverage dealer as "(a)ny person who engages in the business of selling or supplying alcoholic beverages to any person for resale in the County of Cook."

The complaint further alleged: On May 31, 1979, an authorized agent of Cook County requested that he be given access to the books, records and reports of Illinois Wine. On or about June 1, 1979, defendant James Edelstein informed that agent that the books, records and reports of Illinois Wine would not be produced for inspection. Unless defendants are affirmatively ordered by the court to produce all books, records and reports for inspection, plaintiff will suffer irreparable harm and injury in that no determination of the amount of taxes which may be due to the County of Cook pursuant to the Ordinance can be made; and such taxes due, if any, cannot be collected. Plaintiff has a clear legal right to inspect all books, records and reports maintained and kept by defendants. Section 5 of the Ordinance provides for a fine or imprisonment for violation of the Ordinance. Defendants' actions, as described, are in violation of the Ordinance.

Defendants moved under sections 45 and 48 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, pars. 45, 48) to strike the complaint for failure to state with sufficient particularity a claim upon which a writ of mandamus could issue and on the ground that the complaint violates the fourteenth amendment to the United States Constitution. In support, they filed the affidavit of defendant James Edelstein. On February 26, 1980, the circuit court denied defendants' motion to dismiss and, on plaintiff's motion, struck the affidavit of Edelstein. Defendants stood on their motion to dismiss. On March 28, 1980, the circuit court ordered that a writ of mandamus issue forthwith directing defendants to produce pursuant to the Ordinance all their corporate books, records and reports in their possession and control for inspection and examination by agents of the County of Cook. The court stayed its order pending appeal upon the condition that the defendants shall maintain and preserve all corporate books, records and reports, including all invoices of sales for the years 1976 and subsequent years.

Defendants appeal from the issuance of the writ of mandamus and from the order denying their motion to dismiss and from the order striking defendant's affidavit in support. They contend that (1) plaintiff's complaint fails to state with sufficient particularity a claim upon which the court could base the issuance of a writ of mandamus and the possible imposition of fines and imprisonment, and (2) the issuance of the writ of mandamus violates the due process clause of the Federal and State constitutions.

Defendants admit that they are not contesting the validity of the Ordinance which was sustained in Mulligan v. Dunne (1975), 61 Ill.2d 544, 338 N.E.2d 6. In that case, the court summarized the Ordinance (61 Ill.2d at 546-547, 338 N.E.2d 6):

"Section 1 of the ordinance imposes a tax 'on the retail sale in Cook County of all alcoholic beverages * * * according to the following schedule: (a) Wines containing 14% or less alcohol by volume, a tax at the rate of 12 cents per gallon or the pro rata portion thereof. (b) Wines containing more than 14% alcohol by volume, a tax at the rate of 30 cents per gallon or the pro rata portion thereof. (c) Alcohol and spirits, a tax at the rate of $1 per gallon or the pro rata portion thereof. (d) Beer, a tax at the rate of 4 cents per gallon or the pro rata portion thereof.' The ordinance states the tax is not a 'tax upon the occupation of retail or wholesale alcoholic beverage dealers,' but is to be borne by the consumer and any failure by retailers to include the tax in the sale price or any effort to otherwise absorb the tax is a violation of the ordinance. The tax is to be collected and paid to the Cook County collector by wholesalers who sell alcoholic beverages to retailers doing business in Cook County. The wholesalers are to collect the tax from the retailers, who in turn collect it from the consumer by including it in the sale price. Section 2 requires wholesalers to register with the Bureau of Administration of Cook County (the Bureau) and report their monthly sales to the county collector on forms prescribed by the Bureau within 45 days of the last day of the month for which return is due, remitting the tax due with each report. Section 3 authorizes the Bureau to promulgate reasonable rules, definitions and regulations in order to accomplish its duties under the ordinance and specifically provides that the 'Bureau may appoint wholesale dealers of alcoholic beverages and any other person within or without the County of Cook as agents for the tax herein levied.' Section 3 also requires retailers doing business in Cook County to file with the Bureau a sworn inventory of all alcoholic beverages possessed on the effective date of the ordinance and to pay within 60 days to the county collector the tax due from the retail sale of such inventory unless the tax has already been collected and paid by a wholesaler. Section 4 allows the Bureau the right to inspect all books, records and reports of retailers and wholesalers. Section 5 prescribes penalties for violations of the ordinance and authorizes civil proceedings by the county to recover delinquent taxes. Section 6 declares that the tax is in addition to all other taxes imposed by Federal, State or local governments. Section 7 grants an exemption from the tax for sales of all alcoholic beverages to purchasers who are passengers on interstate carriers and for sales of wine 'intended for use and used by any church or religious organization for sacramental purposes.' Section 9 is a severability clause, declaring that the validity of the remainder of the ordinance shall not be affected by a holding that one or more of its provisions are unconstitutional."

Defendants contend that the complaint fails to state a cause of action in mandamus because (a) it does not specify the retail alcoholic beverage dealers within Cook County to whom defendants sold or delivered alcoholic beverages and (b) it does not allege that any sales were made by defendants for "resale" in Cook County. We disagree.

The Civil Practice Act provides that pleadings shall be liberally construed with a view to doing substantial justice between the parties (Ill.Rev.Stat.1979, ch. 110, par. 33(3)) and pleadings need only reasonably inform the opposite party of the nature of the claim or defense (Ill.Rev.Stat.1979, ch. 110, par. 42(2)).

A complaint is not required to set out evidence, only ultimate facts. (Board of Education, Kankakee School District No. III v. Kankakee Federation of Teachers Local No. 886 (1970), 46 Ill.2d 439, 446-447, 264 N.E.2d 18.) The necessary elements for the issuance of a writ of mandamus are set forth in People ex rel. Endicott v. Huddleston (1976), 34 Ill.App.3d 799, 802, 340 N.E.2d 662:

" * * * A petition for a writ of mandamus must contain the following: (1) a clear right to have the requested act performed (People ex rel. Pignatelli v. Ward, 404 Ill. 240, 243 (88 N.E.2d 461)); (2) every material fact necessary to demonstrate the plaintiff's clear right to the writ (Anderson v. Board of Education, 390 Ill. 412, 435 (61 N.E.2d 562)); (3) a showing that the requested act is the duty of the defendant to perform (Anderson); (4) a showing that the requested act is within the power and authority of the defendant (People ex rel. Canella v. City of Chicago, 7 Ill.2d 416, 418 (131 N.E.2d 98)); and (5) in the case of a private (as distinguished from a public) right the plaintiff must show a demand and the defendant's refusal to act (People ex rel. Edelman v. Hunter, 350 Ill.App. 75 (111 N.E.2d 906)). * * * "

The allegations of the complaint fully satisfy these conditions.

Section 4 gives an explicit right to inspect the books and reports of wholesale...