People ex rel. Nelson Bros. Storage & Furniture Co. v. Fisher, No. 25398.

CourtSupreme Court of Illinois
Writing for the CourtFARTHING
Citation25 N.E.2d 785,373 Ill. 228
Decision Date21 February 1940
Docket NumberNo. 25398.
PartiesPEOPLE ex rel. NELSON BROS. STORAGE & FURNITURE CO. v. FISHER, Judge.

373 Ill. 228
25 N.E.2d 785

PEOPLE ex rel. NELSON BROS. STORAGE & FURNITURE CO.
v.
FISHER, Judge.

No. 25398.

Supreme Court of Illinois.

Feb. 21, 1940.


Mandamus proceeding by the People, on the relation of the Nelson Brothers Storage & Furniture Company, against Harry M. Fisher, Judge.

Writ awarded.

[25 N.E.2d 786]

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.


FARTHING, Justice.

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: “The purpose of a common-law writ of certiorari is to bring the entire record of an inferior tribunal before the court to determine whether such a tribunal has proceeded according to law, and the trial is to be had solely from an inspection of the record. The court cannot consider any matter not appearing of record, and if the want of jurisdiction or illegality appears from the record the proper judgment is that the proceeding be quashed; but if the proceeding be regular the petition must be dismissed and the writ quashed, and these are the only judgments that can be entered in this procedure.' Sanner v. Union Drainage District, 175 Ill. 575, 51 N.E. 857. * * * ‘It is true we have a statute which provides for the issuing of a writ called a certiorari, but that writ can scarcely be said to have any analogy to the common-law writ of the same name. The common-law writ only removes the record of the inferior court, and upon that record alone can the questions be raised. The determination of the questions of fact by the inferior court, are held conclusive, while our statutory writ removes the entire case into the circuit court and opens for re-examination, all questions, both of law and fact. Indeed it is but another mode of taking an appeal from the judgment of a justice of the peace to the circuit court, and it can only be directed to justices of the peace, while the common-law suit, as we have seen, may be sent to all inferior tribunals and jurisdictions, whether they be courts of justice or tribunals of special and more limited authority, and whether an appeal be allowed from their determinations or not.”

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30 practice notes
  • Henrich v. Libertyville High School, No. 84094.
    • United States
    • Supreme Court of Illinois
    • December 3, 1998
    ...People ex rel. Roan v. Wilson, 405 Ill. 122, 128, 90 N.E.2d 224 (1950); People ex rel. Nelson Brothers Storage & Furniture Co. v. Fisher, 373 Ill. 228, 234, 25 N.E.2d 785 (1940). A court must interpret and apply statutes in the manner in which they are written. A court must not rewrite stat......
  • Grandco Corp. v. Rochford, No. 75-1535
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 8, 1976
    ...Evanston Fair Housing Review Board, 62 Ill.2d 11, 338 N.E.2d 186 (1975); People ex rel. Nelson Bros. Storage and Furniture Co. v. Fisher, 373 Ill. 228, 25 N.E.2d 785 (1940); Quinlan, 25 Ill.App.3d 879, 324 N.E.2d at Furthermore, it is uncertain whether this plaintiff's challenge to the lice......
  • Superior Coal Co. v. O'Brien, No. 26944.
    • United States
    • Supreme Court of Illinois
    • September 14, 1943
    ...testimony. Clauson v. Department of Finance, 377 Ill. 399, 36 N.E.2d 714;People ex rel. Nelson Bros. Storage & Furn. Co. v. Fisher, 373 Ill. 228, 25 N.E.2d 785, 788. As we observed in the case last cited, ‘When the legislature provides for certiorari, and no provision is made in regard to t......
  • Gore v. Tennessee Dept. of Correction, No. M2002-02640-COA-R3-CV.
    • United States
    • Court of Appeals of Tennessee
    • October 6, 2003
    ...the proceeding or to quash the writ and dismiss the petition. (People ex rel. Nelson Brothers Storage & Furniture Co. v. Fisher (1940), 373 Ill. 228, 230, 25 N.E.2d 785, 786.) The issues cannot be tried on allegations contained in the petition or on any facts except on the record of the pro......
  • Request a trial to view additional results
30 cases
  • Henrich v. Libertyville High School, No. 84094.
    • United States
    • Supreme Court of Illinois
    • December 3, 1998
    ...People ex rel. Roan v. Wilson, 405 Ill. 122, 128, 90 N.E.2d 224 (1950); People ex rel. Nelson Brothers Storage & Furniture Co. v. Fisher, 373 Ill. 228, 234, 25 N.E.2d 785 (1940). A court must interpret and apply statutes in the manner in which they are written. A court must not rewrite stat......
  • Grandco Corp. v. Rochford, No. 75-1535
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 8, 1976
    ...Evanston Fair Housing Review Board, 62 Ill.2d 11, 338 N.E.2d 186 (1975); People ex rel. Nelson Bros. Storage and Furniture Co. v. Fisher, 373 Ill. 228, 25 N.E.2d 785 (1940); Quinlan, 25 Ill.App.3d 879, 324 N.E.2d at Furthermore, it is uncertain whether this plaintiff's challenge to the lice......
  • Superior Coal Co. v. O'Brien, No. 26944.
    • United States
    • Supreme Court of Illinois
    • September 14, 1943
    ...testimony. Clauson v. Department of Finance, 377 Ill. 399, 36 N.E.2d 714;People ex rel. Nelson Bros. Storage & Furn. Co. v. Fisher, 373 Ill. 228, 25 N.E.2d 785, 788. As we observed in the case last cited, ‘When the legislature provides for certiorari, and no provision is made in regard to t......
  • Gore v. Tennessee Dept. of Correction, No. M2002-02640-COA-R3-CV.
    • United States
    • Court of Appeals of Tennessee
    • October 6, 2003
    ...the proceeding or to quash the writ and dismiss the petition. (People ex rel. Nelson Brothers Storage & Furniture Co. v. Fisher (1940), 373 Ill. 228, 230, 25 N.E.2d 785, 786.) The issues cannot be tried on allegations contained in the petition or on any facts except on the record of the pro......
  • Request a trial to view additional results

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