People ex rel. Nelson Bros. Storage & Furniture Co. v. Fisher, 25398.
Citation | 25 N.E.2d 785,373 Ill. 228 |
Decision Date | 21 February 1940 |
Docket Number | No. 25398.,25398. |
Parties | PEOPLE ex rel. NELSON BROS. STORAGE & FURNITURE CO. v. FISHER, Judge. |
Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
Mandamus proceeding by the People, on the relation of the Nelson Brothers Storage & Furniture Company, against Harry M. Fisher, Judge.
Writ awarded.McCarthy & Toomey, of Chicago (Frank A. McCarthy, John E. Toomey, and James C. O'Brien, Jr., all of Chicago, of counsel), for petitioner.
John E. Cassidy, Atty. Gen. (Montgomery S. Winning, of Springfield, and Mortimer Porges and Philip J. Simon, both of Chicago, of counsel), for respondent.
This is a petition for a writ of mandamus to compel a judge of the circuit court of Cook county to expunge an order alleged to be void. On March 11, 1938, the relator, the Nelson Brothers Storage and Furniture Company, received notice from the Department of Finance of the State of Illinois that an assessment had been levied against it for retailers' occupation tax. In accordance with the statute, relator filed in the circuit court a praecipe for a writ of certiorari. The writ was issued, and the department filed its return with the transcript of proceedings. On May 25, 1938, relator attempting to file a written motion to quash the return but the court refused to entertain it on the ground that this motion was superfluous. On June 23, 1938, the cause was heard, and respondent entered an order finding that the return showed the assessment ‘was not duly made by the Department of Finance and that there are other irregularities appearing upon the face of the said return.’ A judgment was entered reversing the findings of the department, and remanding the cause to the Department of Finance for the taking of additional testimony and ‘for other and further proceedings in accordance with law.’ The judgment also authorized the department to withdraw its report of proceedings for correction. Relator obtained leave and filed this petition for mandamus to expunge this order on the ground that respondent's jurisdiction is limited to either an order quashing the writ or an order quashing the record.
The Retailers' Occupation Tax Act, after setting out the method and rules of hearing and departmental decision, provides as follows: ‘The Circuit and Superior Court of the County wherein the hearing is held shall have power by writ of certiorari to the Department to review all questions of law and fact determined by the Department in administering the provisions of this Act presented by such record.’ Ill.Rev.Stat.1939, chap. 120, § 451. In People v. McGoorty, 270 Ill. 610, at page 619, 110 N.E. 791, at page 794, this court discussed the difference between the statutory and common law writs of certiorari, and said:
If respondent's contention be true, that in the instant case the statutory provision for review of all questions of law and fact by writ of certiorari includes the implied power to reverse and remand and enter other orders, the effect would be to create, as in the case just cited, ‘another mode of taking an appeal,’ giving to the circuit and superior court all the authority to be found in an appellate court. This contention finds no support in law, for an ‘appeal’ to a court cannot be had from the decision of an administrative body such as the Department of Finance. In Maxwell v. People, 189 Ill. 546, at page 557, 59 N.E. 1101, 1105, we discussed a statute allowing an ‘appeal’ from a decision of a board of review in a tax case, and said: In City of Aurora v. Schoeberlein, 230 Ill. 496, at page 502, 82 N.E. 860, at page 861, a case which involved an ‘appeal’ from a decision of a board of fire and police commissioners, it was held: ...
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