Dep't of Fin. v. Werner

• Decision Date: 10 December 1936
• Docket Number: No. 23810.,23810.
• Citation: 364 Ill. 615,5 N.E.2d 241
• Parties: DEPARTMENT OF FINANCE v. WERNER.
• Court: Illinois Supreme Court

364 Ill. 615

5 N.E.2d 241

DEPARTMENT OF FINANCE

v.WERNER.

No. 23810.

Supreme Court of Illinois.

Dec. 10, 1936.

Action by the Department of Finance against Jess Werner. From a judgment for plaintiff, defendant appeals.

Affirmed.Appeal from Circuit Court, Sangamon County; Lawrence E. stone, judge.

Hodges & Tragethon, of Springfield, for appellant.

Otto Kerner, Atty. Gen. (John F. McGinnis, of Springfield, of counsel), for appellee.

JONES, Justice.

Jess Werner is a retailer of gasoline, oils, and greases in Springfield. The Department of Finance recovered a judgment against him in the circuit court of Sangamon county for $4,884.55 due the State under the provisions of the Retailers' Occupation Tax Act (Laws 1933, p. 924, Smith-Hurd Ill. Stats. c. 120, § 440 et seq. and notes). The facts were stipulated. The cause is here on Werner's appeal.

While this suit was pending, the defendant was convicted in the county court of Sangamon county on an information charging willful failure to make return and report to the Department of Finance under the provisions of said act. The conviction was affirmed by this court at the present term. People v. Werner, 5 N.E.(2d) 238.

The grounds urged for reversal are that the judgment wrongfully includes a tax, penalty, and interest upon the amount of the federal tax paid by defendant and upon the motor fuel tax collected for and remitted by him to the Department of Finance under the Motor Fuel Tax Act (Laws 1929, p. 625, Smith-Hurd Ill.Stats. c. 120, § 417 et seq. and notes); that sections 12 and 13 of the Retailers' Occupation Tax Act (Smith-Hurd Ill.Stats. c. 120, §§ 451, 452) are unconstitutional, as delegating to administrative officers the power to make and enforce rules and regulations, a violation of which would subject the offender to a fine or imprisonment; that the trial court was advised of the pendency of the criminal charge concerning the same subject matter, and in violation of his constitutional rights he was compelled to give evidence against himself under an order of the court to answer interrogatories propounded to him under a dedimus and to produce records under a subpoena duces tecum.

Except for the proceedings by the Department of Finance hereinafter mentioned, the facts, so far as necessary for consideration of the issues here, are set forth in the People's Case, supra. The claim that the defendant was compelled to testify against himself was not raised in that case. All the other issues were therein decided adversely to his contentions. The only question remaining to be decided in this case is whether or not the order compelling him to produce records and to answer interrogatories entitles him to a reversal of the judgment.

This stipulation of facts in this case, aside from and without such records or any testimony of the defendant, shows that he was engaged in the business of selling tangible personal property at retail for use and consumption within the State; that on October 2, 1935, after due notice to him and a hearing in accordance with the statute, the Department...