Monroe v. Collins
| Decision Date | 21 May 1946 |
| Docket Number | No. 28765.,28765. |
| Citation | 66 N.E.2d 670,393 Ill. 553 |
| Parties | MONROE v. COLLINS, Director of Revenue, et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Madison County; D. H. Mudge, Judge.
Suit by James O. Monroe, on behalf of himself and other retailers of the state, against Philip W. Collins, Director of Revenue, and the Department of Revenue of the State, to enjoin defendants from collecting all or a part of the tax imposed by the Retailers' Occupation Tax Act. From a decree dismissing the cause, the plaintiff appeals.
Affirmed.
James O. Monroe, of Collinsville, pro se.
George F. Barrett, Atty. Gen. (William C. Wines, of Chicago, and Murray Milne, of Springfield, of counsel), for appellees.
Plaintiff, James O. Monroe, is engaged in the business of printing and publishing in the city of Collinsville. Such business is subject to an occupational tax imposed under the Retailers' Occupation Tax Act. IllRev.Stat.1945, chap. 120, par. 440 et seq. On behalf of himself and other retailers of the State, he started this suit in the circuit court of Madison county against Philip W. Collins, Director of Revenue, and the Department of Revenue of the State. The prayer of the complaint was that the said Director and Department be enjoined (a) from collecting any of the tax imposed by the Retailers' Occupation Tax Act for a period of nine months; (b) or, as an alternative, that they be enjoined from collecting one half of the 2 per cent imposed by the statute for a period of 18 months, (c) or, as a further alternative, that they be enjoined from collecting any of the tax until such time as the balance in the general revenue fund of the State has been reduced to a sum not exceeding $15,000,000. The Director, in his official capacity, and the Department of Revenue moved to dismiss the cause. The motion was sustained. The revenue being involved, the cause came to this court by direct appeal.
The rates of tax imposed by the act and amendments thereto for various periods beginning with the effective date of the act, July 1, 1933, and continuing until July 1, 1941, are set forth in plaintiff's complaint. The present rate of 2 per cent became effective on the latter date and has continued since to be the rate per cent on which the tax is computed. It is alleged that for years 1942 and 1943 the tax collected pursuant to the act totaled approximately $80,000,000 for each of said years, and that when the suit was started, in March, 1944, the trend pointed to an increase over the two preceding years. It is alleged that the revenue produced by the 2 per cent occupational tax, with revenue collected by the State from other sources is exceeding the appropriations made by the General Assembly. As a result of such excessive income, a large surplus has accumulated in the general revenue fund in the State treasury. The annual balances of such surplus, for the period 1934-1943 inclusive, ranged from a low on December 31, 1939, of a little over $6,000,000 to a peak on December 31, 1943, of $73,396,988.15. The balance of surplus averaged for the period stated would be slightly in excess of $14,000,000, and plaintiff adopts a balance of $15,000,000 as sufficient to meet the needs of the State and to account for fluctuations in the income. The prayer is for an injunction to enjoin the collection of a part or all of the occupational tax until the expenses of State government reduced the surplus in the general revenue fund to $15,000,000.
The complaint was drawn on the theory that section 1 of article IX of the constitution, Smith-Hurd Stats. which directs that ‘The general assembly shall provide such revenue as may be needful by levying a tax’ is a restricting upon the power of the General Assembly requiring it to limit the revenue to such an amount ‘as may be needful.’
Defendants assigned several grounds in support of their motion to dismiss but only two will be considered, namely, that this action is barred by a prior judgment, and that the action is against the State in its sovereign capacity and therefore prohibited by section 26 of article IV of the constitution. The constitutional provision is ‘The state of Illinois shall never be made defendant in any court of law or equity.’
In support of the defense that this action is barred by a former order of this court, it is shown that at the January term, 1944, plaintiff made application to this court for leave to file an original action, identical with the present case, and that leave to file was denied. The suit, had permission to file been granted, was directed against the parties who are defendants in the present case, with a prayer for the same relief. Defendants contend that the order denying leave to file was an adjudication that plaintiff's complaint did not state a case for the equitable relief prayed, and that the doctrine of res judicata should be applied.
In support of their contention defendants cite People ex rel. Bowen v. Hughes, 370 Ill. 255, 18 N.E.2d 453. That was a mandamus action instituted on the relation of the Director of the Department of Public Welfare against the Secretary of State to require him, as the State's purchasing agent of automobile license plates, to obtain the same from the supplies made by convict labor. It involved the construction of a statute. The cause came here on appeal from the circuit court. Prior to the starting of the suit in the circuit court, relator had made application to this court for leave to file the cause as an original action. Leave to file was denied. In the opinion there is a statement to the effect that the questions presented on the appeal on the merits of the case were the same as those involved in relator's application for leave to file an original action. It does not appear that former adjudication of the cause was pleaded or that it was an issue when here on appeal. In fact, the opinion shows that it was not disposed of by application of the doctrine of res judicata but that the statute upon which relator based his action was construed and that the conclusion drawn was founded on the language of the statute. The case is not a precedent for application of the rule of former adjudication in this case.
What does an order of this court denying an application for leave to file an original action really adjudicate? In the first place, the procedure in making the application and the order of denial does not include the fundamentals, of parties and a decision on the merits, which are necessary that a judgment possess before it may be pleaded in bar of a subsequent action. The making...
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