Weil-McLain Co. v. Collins, No. 29542.

CourtSupreme Court of Illinois
Writing for the CourtPER CURIAM.
Citation71 N.E.2d 91,395 Ill. 503
PartiesWEIL-McLAIN CO. et al. v. COLLINS, Director of Revenue, et al.
Decision Date15 January 1947
Docket NumberNo. 29542.

395 Ill. 503
71 N.E.2d 91

WEIL-McLAIN CO. et al.
v.
COLLINS, Director of Revenue, et al.

No. 29542.

Supreme Court of Illinois.

Sept. 18, 1946.
As Modified on Denial of Rehearing Nov. 18, 1946.

Additional Opinion Jan. 15, 1947.


Appeal from Circuit Court, Cook County; William V. Brothers, Judge.

Suit by Weil-McLain Company and others against Philip W. Collins, Director of Revenue, and others, to enjoin defendants from collecting taxes from plaintiffs under the Retailers' Occupation Tax Act and to obtain refunds. From supplemental decrees, Paul C. Rosenquist, Director of Revenue, appeals.

Reversed in specified particulars and remanded with directions.

[71 N.E.2d 93]

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

Blum & Jacobson, Philip R. Toomin, and Defrees, Fiske, O'Brien & Thomson, all of Chicago (Samuel F. Jacobson, Albert M. Blum, George M. Shkoler, and Matthew Mills, all of Chicago of counsel), for appellees.


GUNN, Chief Justice.

Sometime prior to August 18, 1944, Weil-McLain Co. and a number of others, filed a complaint in the circuit court of Cook county praying that certain State officials be restrained and enjoined from collecting taxes from them under the provisions of the Retailers' Occupation Tax Act, and demanding certain refunds for taxes claimed to have been illegally exacted and paid by them. A decree was entered August 18, 1944, finding plaintiffs were in the business of selling at retail plumbing and heating supplies and building material to contractors and subcontractors, and as such were not liable to pay a tax under said statute under certain decisions of this court, and were entitled to a refund under section 6 of said statute. The decree enjoined the collection of a tax under the statute from such plaintiffs, and further held they were entitled to a refund or credit memorandum, and referred the cause to a master in chancery for the taking of proof, and retained jurisdiction to determine the amounts each plaintiff was entitled to for refund.

July 18, 1945, on petition of certain intervenors, a first supplemental decree of like character was entered in favor of the additional plaintiffs. November 14, 1945, and November 23, 1945, like decrees were entered in favor of additional intervening plaintiffs, seeking the same relief. In all such cases the court retained jurisdiction to ascertain the amounts due each individual plaintiff. The defendants took no exception to the entering of the original decree, or to the first supplemental decree, but did except to, and the appeal was from, the second and third supplemental decrees. The reason for appellant's appeal from these two last decrees arises out of the fact that amendments were made to the Retailers' Occupation Tax Act during the 1945 session of the legislature, and the two supplemental decrees were entered after such amendments became effective. Since the revenue is involved, a direct appeal to this court is proper.

The amendment to section 6 of the Retailers' Occupation Tax Act (Ill.Rev.Stat.1945, chap. 120, par. 445,) was approved July 25, 1945. This was after the date of adjournment of the regular session of the General Assembly of Illinois, and hence the law became effective upon the date of the Governor's signature approving the act. People ex rel. Martin v. Village of Oak Park, 372 Ill. 488, 24 N.E.2d 571.

The changes effected by this amendment are substantial. Without setting out the original statute and the amended statute in full it is sufficient to point out the substance of these changes: (1) In the first line of the section it is made to read: ‘If it shall appear, after claim therefor filed with the Department, that an amount of tax or penalty has been paid which was not due under the provisions of this Act.’ etc., a refund or credit memorandum may be allowed to one who has by error of law or mistake of fact paid taxes that were not due and payable. This portion of section 6 before it was amended did not contain the italized words above set out. (2) Section 6, as amended, provides for a hearing before the Department for the purpose of examining the claim and determining the amount of the credit. (3) It provides that the final determination may be reviewed by the proper circuit or superior court within the time and manner provided in section 12 of the same act. (Ill.Rev.Stat.1945, chap. 120, par. 451.) (4) If a protest of the Department's tentative determination

[71 N.E.2d 94]

is not filed within twenty days the action of the Department shall be deemed final, and no longer open to protest, hearing, review or certiorari, or any other proceeding by either the Department or any court of the State. (5) Finally, it provides that the provision for obtaining credit for such taxes in the Department is exclusive, and that no court shall have jurisdiction to determine the merits of any claim, except upon a review as provided in the Act.

Appellant contends that from and after the time this section of the act became effective, viz., July 25, 1945, the courts were without power to decree anything to any plaintiff who sought recovery of a refund in the court subsequent to that date. We have frequently held under the Retailers' Occupation Tax Act the remedy provided for reviewing the assessment of taxes therein must conform to the provisions of the statute, and that unless the procedure required by the statute is followed, the courts have no jurisdiction. Department of Finance v. Gold, 369 Ill. 497, 17 N.E.2d 13;Department of Finance v. Goldberg, 370 Ill. 578, 19...

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13 practice notes
  • Orlicki v. McCarthy, No. 33295
    • United States
    • Supreme Court of Illinois
    • November 18, 1954
    ...714; Smolen v. Industrial Comm., 324 Ill. 32, 154 N.E. 441; McQueen v. Connor, 385 Ill. 455, 53 N.E.2d 435; Weil-McLain Co. v. Collins, 395 Ill. 503, 71 N.E.2d 91; Ogdon v. Gianakos, 415 Ill. 591, 114 N.E.2d The term 'procedure,' however, has been invested with a meaning much wider than tha......
  • Steinberg v. Chicago Medical School, No. 48943
    • United States
    • Supreme Court of Illinois
    • December 12, 1977
    ...347, 122 N.E.2d 513; Board of Education v. City of Chicago (1949), 402 Ill. 291, 296, 83 N.E.2d 714; Well-McLain Co. v. Collins (1946), 395 Ill. 503, 508, 71 N.E.2d 91.) Accordingly, we shall measure this action in terms of the That the class here is so numerous that joinder of all parties ......
  • Walters v. Walters, Gen. No. 44859
    • United States
    • United States Appellate Court of Illinois
    • October 9, 1950
    ...39 N.E.2d 995; Hire v. Hrudicka, 379 Ill. 201, 40 N.E.2d 63; McQueen v. Connor, 385 Ill. 455, 53 N.E.2d 435; Weil-McLain Co. v. Collins, 395 Ill. 503, 71 N.E.2d 91; Fallon v. Illinois Commerce Commission, 402 Ill. 516, 84 N.E.2d [341 Ill.App. 589] The fact that in the present case the statu......
  • Jones v. Department of Revenue, No. 77-315
    • United States
    • United States Appellate Court of Illinois
    • May 19, 1978
    ...the acts of the legislature. (People ex rel. Eitel v. Lindheimer (1939),371 Ill. 367, 21 N.E.2d 318; Weil-McLain Co. v. Collins (1947), 395 Ill. 503, 71 N.E.2d 91.) Thus, taxes voluntarily paid cannot be recovered by a taxpayer in the absence of a statute providing for a credit or a refund ......
  • Request a trial to view additional results
13 cases
  • Orlicki v. McCarthy, No. 33295
    • United States
    • Supreme Court of Illinois
    • November 18, 1954
    ...714; Smolen v. Industrial Comm., 324 Ill. 32, 154 N.E. 441; McQueen v. Connor, 385 Ill. 455, 53 N.E.2d 435; Weil-McLain Co. v. Collins, 395 Ill. 503, 71 N.E.2d 91; Ogdon v. Gianakos, 415 Ill. 591, 114 N.E.2d The term 'procedure,' however, has been invested with a meaning much wider than tha......
  • Steinberg v. Chicago Medical School, No. 48943
    • United States
    • Supreme Court of Illinois
    • December 12, 1977
    ...347, 122 N.E.2d 513; Board of Education v. City of Chicago (1949), 402 Ill. 291, 296, 83 N.E.2d 714; Well-McLain Co. v. Collins (1946), 395 Ill. 503, 508, 71 N.E.2d 91.) Accordingly, we shall measure this action in terms of the That the class here is so numerous that joinder of all parties ......
  • Walters v. Walters, Gen. No. 44859
    • United States
    • United States Appellate Court of Illinois
    • October 9, 1950
    ...39 N.E.2d 995; Hire v. Hrudicka, 379 Ill. 201, 40 N.E.2d 63; McQueen v. Connor, 385 Ill. 455, 53 N.E.2d 435; Weil-McLain Co. v. Collins, 395 Ill. 503, 71 N.E.2d 91; Fallon v. Illinois Commerce Commission, 402 Ill. 516, 84 N.E.2d [341 Ill.App. 589] The fact that in the present case the statu......
  • Jones v. Department of Revenue, No. 77-315
    • United States
    • United States Appellate Court of Illinois
    • May 19, 1978
    ...the acts of the legislature. (People ex rel. Eitel v. Lindheimer (1939),371 Ill. 367, 21 N.E.2d 318; Weil-McLain Co. v. Collins (1947), 395 Ill. 503, 71 N.E.2d 91.) Thus, taxes voluntarily paid cannot be recovered by a taxpayer in the absence of a statute providing for a credit or a refund ......
  • Request a trial to view additional results

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