Dep't of Finance v. Goldberg

• Decision Date: 20 February 1939
• Docket Number: No. 24959.,24959.
• Citation: 19 N.E.2d 593,370 Ill. 578
• Parties: DEPARTMENT OF FINANCE v. GOLDBERG.
• Court: Illinois Supreme Court

370 Ill. 578

19 N.E.2d 593

DEPARTMENT OF FINANCE

v.GOLDBERG.

No. 24959.

Supreme Court of Illinois.

Feb. 20, 1939.

Suit by the Department of Finance of the State of Illinois, for the use of the People, against Mrs. S. H. Goldberg for an amount allegedly due the State of Illinois under the Retailers' Occupation Tax Act, Smith-Hurd Stats. c. 120, § 440 et seq. From a judgment dismissing the suit, the plaintiff appeals.

Reversed and remanded with directions.Appeal from Circuit Court, Winnebago County; Arthur E. fisher, judge.

John E. Cassidy, Atty. Gen. (John F. McGinnis, of Springfield, Martin A. Brennan, of Bloomington, and Frank Pfeifer and W. F. Gray, both of Springfield, of counsel), for appellant.

B. Jay Knight, J. E. Goembel, Frank H. Clark, and T. O. Prather, all of Rockford (Frederic H. Haye, of Rockford, of counsel), for appellee.

GUNN, Justice.

The Department of Finance of the State of Illinois, for the use of the People (hereafter referred to as the Department of Finance), filed suit in the circuit court of Winnebago county against Mrs. S. H. Goldberg, doing business as the B. & G. Fruit Company, to recover $37,688.94, claimed to be due the State of Illinois under the Retailers' Occupation Tax act, Smith-Hurd Stats. c. 120, § 440 et seq., from July, 1933, until July, 1936.

The complaint alleges that Goldberg was engaged in selling tangible personal property to purchasers for use or consumption; that she has failed to pay the required tax; that, after due notice, an assessment was made at a hearing held on February 10, 1937, pursuant to the statute, a copy of which is attached to the complaint as exhibit A; that more than twenty days elapsed after notice to said defendant of the decision of the Department of Finance, at said hearing held on February 10, 1937, and that no suit has been instituted by the defendant to have the findings reviewed by the circuit court by certiorari or other means, wherefore they pray judgment. The complaint is sworn to by a qualified agent of the Director of Finance. Exhibit A attached purports to be ‘findings and conclusions of hearing officer in the matter of the hearing granted to Mrs. S. H. Goldberg on February 10, 1937, and recites: ‘I, the undersigned, find the following facts to have been established [here is recited the amounts of sales and computation of tax] wherefore pursuant to the authority granted to me by virtue of the statute * * * and the act of the Director of the Department of Finance * * * and after consideration of the evidence introduced, I have determined the liability of the above named taxpayer for taxes and penalties to consist of the amount or amounts hereinafter indicated.’ Then follows a grand total assessment to $37,688.94. ‘Determined this 10th day of February, A. D. 1937, in the County of Winnebago, State of Illinois, William A. Hill, hearing officer, approved J. W. Huston, Supervisor, Legal and Research Division, Department of Finance.’

A motion for summary judgment was made and the affidavit in support, among other things, states: ‘That the records of the Department of Finance under my direct control and in my charge disclose there is a balance due and unpaid in the sum of $37,688.94, being taxes and penalties against the said defendant, to-wit: Goldberg, on certain sales made by her of tangible personal property for use and consumption; that said taxes and penalties, consisting of findings of the hearing officer as per photostatic copy of said findings hereto attached marked Exhibit A; that the defendant was duly notified of the holding of said hearing and also of the findings of the hearing officer according to statute in such case made and provided.’ Motions were made to strike the complaint and to strike the motion for summary judgment.

The defendant filed an affidavit of meritorious defense which, in substance, says that she did not, within the period covered by the complaint, sell goods to the amount of $1,577,519 at retail, and that she, in fact, sold at retail only $46,720, and that she paid, as occupation taxes, $3844, and did not own the sum of $37,688, consisting of $35,894 deficiency tax plus a penalty of $1794, and that she offered to the hearing officer, records, affidavits and certificates establishing her contention but that the hearing officer, either through mistake of law or mistake of fact, or for the purpose of defrauding defendant, wrongfully charged and now seeks to recover the amount mentioned in the complaint as a Retailers' Occupation tax. An answer was filed setting forth substantially the matter contained in the affidavit of defense but more in detail. The court struck the plaintiff's motion for summary judgment but refused to strike the plaintiff's complaint. The defendant demanded a jury, and a motion was made by plaintiff to discharge the jury, which was overruled. The court then ordered the matter to be referred to a master in chancery, as referee, to state an account. Thereupon the plaintiff's attorney objected and excepted, whereupon the court said: ‘Plaintiff elects to stand on objections made by plaintiff and overruled by the court. Suit dismissed at plaintiff's costs; exception by plaintiff.’ The Department of Finance appeals to this court from such judgment, as a matter of revenue is involved.

Appellant assigns as error, first, that it was improper to enter a money judgment against the State of Illinois, second, the court should have entered judgment in favor of the People and against the defendant, and third, the court erred in refusing to discharge the jury and to consider the issues formed by the pleadings.

At the beginning it is to be observed there was a judgment entered against the People of the State of Illinois for costs, which was error under our holdings in People v. Pierce, 1 Gilman 553;Deneen v. Unverzagt, 225 Ill. 378, 80 N.E. 321,8 Ann.Cas. 396;Attorney General v. Illinois Agricultural College, 85 Ill. 516. Ill.Rev.Stat.1937, chap. 33, § 17. The suit was dismissed without disposing of the issues made by the pleadings. The plaintiff had on file a complaint which the court had refused to strike, and the defendant had on file an answer and affidavit of meritorious defense, and before the dismissal of the suit it had ordered the case referred to a referee under the statute, to state an account as to sales at wholesale or retail and report back proofs and findings.

The plaintiff proceeded upon the theory that it had established a proper assessment of a deficiency tax by the Department of Finance. The defendant proceeded upon the theory that it was trying the merits of the findings of the tax hearing as in certiorari. The court seemed to think that it had a right to examine the merits of the finding through a referee because of the pleadings of the defendant, although not responsive to the complant, and when the People objected to its refusal to discharge the jury and excepted to its action, the court deemed this an election to abide by plaintiff's theory of the case, and judgment was entered accordingly.

The situation presented by the pleadings is unusual. The court first held the complaint good on motion to strike and, with an answer on file, could not have entered judgment against the plaintiff unless the facts in the answer were first established. By considering the action of plaintiff's counsel as an election the court necessarily decided, as a matter of law, either that the complaint did not state a cause of action or that the answer presented a defense to any proof that might be admissible under the complaint. The propriety of the court's ruling is raised by the assignment that the court erred in dismissing the suit and in entering judgment for the defendant.

Appellant contends that the complaint states a good cause of action against appellee for a deficiency tax under Retailers' Occupation Tax act, and, by filing motion for summary judgment with affidavit in support thereof, was entitled to judgment on the theory that all matters relating to the assessment thereof would have to be determined by certiorari. The defendant's answer presents the theory that there never was any deficiency assessment made according to statute, and, if it is considered as made, was void because of fraud, or mistake of law or fact on the part of employees of the Department to Finance. The pleadings of both plaintiff and defendant fail to comply with the requirements of the Civil Practice act, Smith-Hurd Stats. c. 110, § 125 et seq., in stating concisely all the facts making a cause of action, or by making explicit denials thereof, nor is a large part of the record, embodying the claims of the defendant, abstracted at...