Superior Coal Co. v. O'Brien, No. 26944.

CourtSupreme Court of Illinois
Writing for the CourtWILSON
PartiesSUPERIOR COAL CO. v. O'BRIEN et al.
Docket NumberNo. 26944.
Decision Date14 September 1943

383 Ill. 394
50 N.E.2d 453

SUPERIOR COAL CO.
v.
O'BRIEN et al.

No. 26944.

Supreme Court of Illinois.

May 20, 1943.
Rehearing Denied Sept. 14, 1943.


Suit by the Superior Coal Company against Thomas J. O'Brien and others to obtain a decree declaring a prior judgment of the superior court void and a second judgment to be in force and restraining the defendants from enforcing the first judgment. From a decree of dismissal, the plaintiff appeals.

Decree affirmed.

[50 N.E.2d 454]

Appeal from Circuit Court, Cook County; Francis B. allegretti, judge.

[50 N.E.2d 455]


Michael M. Phillips and Nelson Trottman, both of Chicago (William T. Faricy, of Chicago, of counsel), for appellant.

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


WILSON, Justice.

This appeal is a sequel to Superior Coal Co. v. Department of Finance, 377 Ill. 282, 36 N.E.2d 354. The Department of Finance made an assessment of $102,730.75 against the Superior Coal Company, representing retailers' occupation taxes and penalties from July 1, 1933, through May, 1935. Thereafter, the taxpayer instituted a certiorari proceeding in the superior court of Cook county, conformably to section 12 of the Retailers' Occupation Tax Act, Ill.Rev.Stat.1941, c. 120, § 451. November 28, 1940, the court quashed the return of the Department of Finance, and the Department prosecuted an appeal to this court, seeking a reversal of the judgment rendered against it. The cause was heard on its merits, no question of the jurisdiction of this court over the subject matter of the proceeding being raised by the parties. June 17, 1941, we reversed the judgment of the superior court and remanded the cause, with directions to quash the writ of certiorari and to render judgment in favor of the Department of Finance and against the Superior Coal Company for $102,730.75. The mandate of this court issued January 20, 1942, and, on the next day, was filed in the superior court. February 10, 1942, in obedience to the mandate, the superior court entered judgment in favor of the Department and against the coal company for $102,730.75. Executions were caused to be issued to Cook and Macoupin counties, and were served by the sheriffs of the respective counties on March 13 and 14, 1942. March 18, 1942, the coal company made a motion to vacate the judgment order of February 10, 1942, and to recall the executions, or, in the alternative, to quash them. The motion was denied.

April 27, 1942, the plaintiff in the present action, the Superior Coal Company, filed a complaint in the superior court of Cook county against the defendants, the sheriffs of Cook and Macoupin counties, the Attorney General of the State, and the Director of Finance, individually and in their official capacities, setting forth the facts previously recounted. The gist of plaintiff's complaint is that the Retailers' Occupation Tax Act contains no provision for appeal from, or review of, decisions of the circuit and superior courts, and that, consequently, this court is without jurisdiction to entertain appeals from judgments in certiorari proceedings under section 12 of the Retailers' Occupation Tax Act. Plaintiff charged that because of the asserted lack of jurisdiction over the subject matter of the appeal in Superior Coal Co. v. Department of Finance, supra, the judgment of this court of June 17, 1941, was void and, further, that the judgment of the superior court of February 10, 1942, entered in compliance with our mandate, was likewise void. Further allegations are that the judgment of the superior court of November 28, 1940, was a final and nonappealable judgment and, despite the subsequent proceedings on appeal and remandment, remained in full force and effect. The relief sought was a decree (1) declaring the judgment of the superior court of February 10, 1942, void, and the earlier judgment of November 28, 1940, still in full force and effect, and (2) restraining defendants from enforcing and satisfying the judgment of February 10, 1942. Defendants' motion to strike the complaint was sustained and, on July 2, 1942, the cause was dismissed for the want of equity and upon the merits. Plaintiff prosecutes this appeal.

The precise issue made by the pleadings is whether judgments of the circuit and superior courts in certiorari proceedings under section 12 of the Retailers' Occupation Tax Act are final and not subject to review either by appeal or on writ of error. Exceedingly able briefs have facilitated our disposition of the important question presented for decision.

Section 12, Ill.Rev.Stat.1941, chap. 120, par. 451, provides, in part, that the circuit and the superior court of the county wherein hearings provided for in the act are held shall have power by writ of certiorari to the Department of Finance to review all questions of law and fact determined by the Department in administering the provisions of the statute presented by such record. This section ordains that where the court quashes the writ, it may enter judgment for the amount of the assessment made by the Department and

[50 N.E.2d 456]

that an execution may issue upon the judgment as in other cases. Determination of whether a person against whom an assessment is made is liable for the tax assessed can only be litigated in a proceeding on certiorari under section 12. Department of Finance v. Schmidt, 374 Ill. 351, 29 N.E.2d 530;Department of Finance v. Goldberg, 370 Ill. 578, 19 N.E.2d 593;Department of Finance v. Gold, 369 Ill. 497, 17 N.E.2d 13. Admittedly, the statute contains no provision affirmatively authorizing an appeal from judgments rendered in proceedings under section 12. On the other hand, the act does not forbid a further review of the proceedings of the circuit and superior courts.

The nature of the proceeding in trial courts has received previous consideration. The writ of certiorari provided for is in contradistinction to the commonlaw writ. Statutory writs, in turn, fall into two principal classes: (1) Those in which the reviewing court is granted power to review all questions of law and fact, and the additional power to enter certain orders; (2) those where the reviewing court is given power to review all questions of law and fact but the statute is silent as to the order or orders to be entered by the court. The certiorari proceeding authorized by the Retailers' Occupation Tax Act is of the second class described. Accordingly, the circuit and superior courts, in reviewing the action of the Department of Finance in assessing a tax under the statute, on a writ of certiorari, must either quash the writ or quash the return, and as the statute makes no specific provision for any other order the court cannot remand the cause to the Department for the taking of additional 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 the authority of the reviewing court to enter orders, then the court is confined and limited to the authority springing from the common law.’ Statements in Clauson v. Department of Finance, supra, and People v. Fisher, supra, to the effect that certiorari proceedings under the Retailers' Occupation Tax Act are statutory certiorari proceedings relate to the scope of review by the circuit and superior courts of proceedings before an administrative body, namely, the Department of Finance. The question of the jurisdiction of this court to entertain appeals in such actions was not presented for decision, and the language employed does not purport to deny the right to a review.

Section 1 of the Civil Practice Act, Ill.Rev.Stat.1941, c. 110, § 125, provides for its application to all civil proceedings, both at law and in equity, unless the application of its provisions is otherwise expressly limited, in courts of record, except in ten named actions, or other actions in which the procedure is regulated by special statutes. Section 77 (§ 201), corresponding to section 91 of the Practice Act of 1907, Smith-Hurd Stats., c. 110, Appendix § 91, declares that appeals shall lie to the Appellate or Supreme Court, in cases where any form of review may be allowed by law. If a proceeding under section 12 of the Retailers' Occupation Tax Act with respect to the assessment of taxes is an action at law or suit in chancery, there is a right of review. People v. Gale, 339 Ill. 162, 171 N.E. 186; Christensen v. Bartelmann Co., 273 Ill. 346, 112 N.E. 686;Lavin v. Wells Bros. Co., 272 Ill. 609, 112 N.E. 271. The expression ‘civil proceedings both at law and in equity’ is sufficiently comprehensive to include every claim or demand in a court of justice which was known at the adoption of our constitution as an action at law or a suit in chancery. Furthermore, it includes all actions since provided for in which personal or property rights are involved of the same nature as those previously enforced by actions at law or in chancery. Conversely, it does not include special statutory proceedings involving rights and providing remedies which are not of the kind previously enforced either at law or in chancery. Even if the right sought to be asserted is one which did not exist at common law but is of statutory origin and similar in character to a common-law right, there is no requirement that the provisions for the enforcement of the right in its initial stages be in accordance with common-law methods if, when the right is later asserted in a court of record, the procedure for its enforcement assumes the aspect of a procedure according to the course of the common law. People v. Gale, supra; Christensen v. Bartelmann Co. supra; Lavin v. Wells Bros. Co., supra. In such case, sections 1 and 77 of the Civil Practice Act apply and an appeal is available.

[50 N.E.2d 457]

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23 practice notes
  • Stratton v. Wenona Community Unit Dist. No. 1, No. 67693
    • United States
    • Supreme Court of Illinois
    • February 16, 1990
    ...review (Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill.2d 11, 15, 338 N.E.2d 186; Superior Coal Co. v. O'Brien (1943), 383 Ill. 394, 400-01, 50 N.E.2d 453; Zenith Vending Corp. v. Village of Schaumburg (1989), 180 Ill.App.3d 354, 361-62, 129 Ill. Dec. 268, 535 N.E.2d 1033), an......
  • Bradford Supply Co. v. Waite, No. 29162.
    • United States
    • Supreme Court of Illinois
    • January 17, 1946
    ...is provided but a writ of error is not expressly forbidden, a writ of error is allowed as a matter of right. Superior Coal Co. v. O'Brien, 383 Ill. 394, 50 N.E.2d 453. Statutes such as the Juvenile Court Act expressly provide for review by writ of error as a matter of right. Ill.Rev.Stat.19......
  • Quinlan & Tyson, Inc. v. City of Evanston, No. 59723
    • United States
    • United States Appellate Court of Illinois
    • January 28, 1975
    ...whether there is any evidence fairly tending to support the order reviewed. Mayor v. Dean, 62 Ill.App. 41; Superior Coal Co. v. O'Brien, 383 Ill. 394, 50 N.E.2d In view of these principles, it is clear that no useful purpose would be served by a remand of the instant case for the issuance o......
  • Smith v. Department of Public Aid, No. 48510
    • United States
    • Supreme Court of Illinois
    • September 20, 1977
    ...People ex rel. Nelson Brothers Storage & Furniture Co. v. Fisher (1940), 373 Ill. 228, 25 N.E.2d 785; Superior Coal Co. v. O'Brien (1943), 383 Ill. 394, 50 N.E.2d 453.) This court has recently held that the substantial differences that at one time existed between common law and statutory ce......
  • Request a trial to view additional results
23 cases
  • Stratton v. Wenona Community Unit Dist. No. 1, No. 67693
    • United States
    • Supreme Court of Illinois
    • February 16, 1990
    ...review (Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill.2d 11, 15, 338 N.E.2d 186; Superior Coal Co. v. O'Brien (1943), 383 Ill. 394, 400-01, 50 N.E.2d 453; Zenith Vending Corp. v. Village of Schaumburg (1989), 180 Ill.App.3d 354, 361-62, 129 Ill. Dec. 268, 535 N.E.2d 1033), an......
  • Bradford Supply Co. v. Waite, No. 29162.
    • United States
    • Supreme Court of Illinois
    • January 17, 1946
    ...is provided but a writ of error is not expressly forbidden, a writ of error is allowed as a matter of right. Superior Coal Co. v. O'Brien, 383 Ill. 394, 50 N.E.2d 453. Statutes such as the Juvenile Court Act expressly provide for review by writ of error as a matter of right. Ill.Rev.Stat.19......
  • Quinlan & Tyson, Inc. v. City of Evanston, No. 59723
    • United States
    • United States Appellate Court of Illinois
    • January 28, 1975
    ...whether there is any evidence fairly tending to support the order reviewed. Mayor v. Dean, 62 Ill.App. 41; Superior Coal Co. v. O'Brien, 383 Ill. 394, 50 N.E.2d In view of these principles, it is clear that no useful purpose would be served by a remand of the instant case for the issuance o......
  • Smith v. Department of Public Aid, No. 48510
    • United States
    • Supreme Court of Illinois
    • September 20, 1977
    ...People ex rel. Nelson Brothers Storage & Furniture Co. v. Fisher (1940), 373 Ill. 228, 25 N.E.2d 785; Superior Coal Co. v. O'Brien (1943), 383 Ill. 394, 50 N.E.2d 453.) This court has recently held that the substantial differences that at one time existed between common law and statutory ce......
  • Request a trial to view additional results

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