Lutkus v. Dep't of Finance

• Citation: 52 N.E.2d 804,385 Ill. 221
• Decision Date: 18 January 1944
• Docket Number: No. 27338.,27338.
• Parties: LUTKUS v. DEPARTMENT OF FINANCE.
• Court: Supreme Court of Illinois

385 Ill. 221

52 N.E.2d 804

LUTKUS

v.DEPARTMENT OF FINANCE.

No. 27338.

Supreme Court of Illinois.

Jan. 18, 1944.

Proceeding by Anton Lutkus for a writ of certiorari to review an assessment of tax deficiencies and penalty under the Retailers' Occupation Tax Act by the Department of Finance. From a judgment quashing the writ, petitioner appeals.

Affirmed.Appeal from Superior Court, Cook County; Peter H. Schwaba, judge.

Novotny & Haase, of Chicago, for appellant.

George F. Barrett, Atty. Gen. (William C. Wines, of Chicago, of counsel), for appellee.

WILSON, Justice.

The plaintiff, Anton Lutkus, doing business as Anton's Tavern, appeals from a judgment of the superior court of Cook county quashing a writ of certiorari sued out to review the assessment of the defendant, the Department of Finance, against him in the amount of $964.98 representing tax deficiencies, and penalty of $48.25, under the Retailers' Occupation Tax Act.

The tax covers a period commencing January 1, 1938, and ending March 31, 1941. Plaintiff's tax returns disclose that he reported sales of $1,517.90 for the year 1938, an average of $4.15 per day. For the year 1939, reported sales increased moderately,resulting in an average of $6.12 per day. For the year 1940, reported sales averaged $6.62 per day. June 24, 1941, the Department of Finance notified plaintiff of a proposed assessment against him, based on taxable receipts of $1,000 per month. Plaintiff protested the assessment and sought a hearing.

At a departmental hearing, plaintiff testified that he owned and operated a tavern at 1255 West Madison street, Chicago. To a query of the hearing officer with respect to plaintiff's objections to the proposed assessment, his attorney replied that at all times he had made true and correct returns and that the only affirmative showing as to the amount of taxable receipts he proposed to make was plaintiff's own testimony. Plaintiff testified further that he did not keep books and records covering his operations for the period in controversy, explaining ‘I just punch the register. I just keep track of the register. I don't have any books.’ When asked whether he recorded daily the amount of his receipts, plaintiff said ‘Yes, but I don't keep the books. I just send once a month sales tax and throw out the papers. I have no record of purchases or expenses. I have some bills.’ Plaintiff declared that he did not desire an opportunity to obtain from his various suppliers a record of the amount of purchases made for his business during the time in question. His attorney added that the expenses incident to his client's business operations during this period were immaterial. In short, plaintiff had never kept adequate books and records, as prescribed by section 7 of the statute (Ill.Rev.Stat.1943, chap. 120, par. 446), and article 8 of the rules promulgated by the Department. When asked if he desired the Department of Finance to issue subpoenas to his various suppliers so that he might be enabled to question them, his attorney answered, ‘We don't desire anything of that kind.’ In the absence of any showing other than plaintiff's unsupported interested testimony, the hearing officer found that he had not submitted such specific proof as would overcome the prima facie case established by defendant and recommended that a final assessment be issued in the same amount as the proposed assessment.

To obtain a reversal, plaintiff makes the contention, among others, that section 12 of the Retailers' Occupation Tax Act, to the extent it provides, ‘In case the Court shall affirm the assessment of the Department in full or in part it shall proceed to enter judgment in said action against the petitioner for the amount of such assessment affirmed either in full or in part, and for costs upon which judgment execution may issue as in other cases' (Ill.Rev.Stat.1943, chap. 120, par. 451) is void and unconstitutional. Plaintiff does not suggest the provisions of either the Constitution of this State or of the United States violated by section 12. In the trial court, plaintiff's attorney objected to the entry of judgment upon the ground that he was ‘questioning the constitutionality of the statute which permits the court to enter a judgment in this matter without first hearing evidence.’ The objection was overruled. Counsel then offered to prove by competent testimony that subsequent to the date of the finding entered against plaintiff, the amount of the assessment had been paid in full, that he had filed a petition in bankruptcy in the United States District Court and defendant's claim was filed, presented, allowed and paid, and, further, that plaintiff had died and in consequence, a judgment could not lawfully be rendered against him, a ‘dead man.’ Objections to each of these offers of proof were sustained. From plaintiff's objections to the motion of the defendant to strike from the file and expunge the transcript of record, abstracts, briefs and other proceedings of record in this cause, it now affirmatively appears that plaintiff was not only not deceased but was actually present in the court room at the time the statement was made. Manifestly, plaintiff is not in a position to urge the unconstitutionality of section 12 on the ground that if he had already paid the tax or if he had died prior to the entry of judgment the refusal, in either instance, to hear additional evidence would have deprived him of his rights guaranteed by the Federal and State Constitutions. There is no basis for a consideration of the constitutional issue argued by plaintiff. Where the constitutional validity of a statute is assailed, the objection must be specific and complete. Hillmer v. Chicago Bank of Commerce, 378 Ill. 449, 38 N.E.2d 751;People v. Calkins, 291 Ill. 317, 126 N.E. 200;Reining v. Mueller, 248 Ill. 389, 94 N.E. 130. The mere assertion that a constitutional question is presented or a constitutional right invaded is insufficient to present a question of the construction of the Constitution or the validity of a statute. Grutzius v. Armour & Co., 377 Ill. 447, 36 N.E.2d 707;Hawley Products Co. v. May, 377 Ill. 506, 37 N.E.2d 167;Economy Dairy Co. v. Kerner, 371 Ill. 261, 20 N.E.2d 568;People v. DeYoung, 369 Ill. 341, 16 N.E.2d 729;Hawkins v. Hawkins, 350 Ill. 227, 183 N.E. 9. In any event, the propriety of the procedure followed in the case at bar has...