Weil-McLain Co. v. Collins

• Citation: 71 N.E.2d 91,395 Ill. 503
• Decision Date: 15 January 1947
• Docket Number: No. 29542.,29542.
• Parties: WEIL-McLAIN CO. et al. v. COLLINS, Director of Revenue, et al.
• Court: Supreme Court of Illinois

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.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 determinationis 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 N.E.2d 593;Department of Finance v. Schmidt, 374 Ill. 351, 29 N.E.2d 530;Superior Coal Co. v. O'Brien, 383 Ill. 394, 50 N.E.2d 453. Likewise we have held the provision for administrative hearing under the Unemployment Compensation Act must be followed before the action of the administrative board may be reviewed by certiorari. S. Buchsbaum & Co. v. Gordon, 389 Ill. 493, 59 N.E.2d 832. The same principle is involved here. We see no reason why the provisions of section 6 of this act as amended on July 25, 1945, should not receive the same construction as we have given to the above provisions, and we hold that to now obtain a refund it is necessary that section 6, as amended, be complied with.

Appellees contend, however, that the plaintiffs mentioned in the second and third supplemental decrees had obtained vested right under a decree of court, which would prevent the legislature from taking it from them by legislative action. In this respect appellees apparently overlook that the persons mentioned in the second and third supplemental decrees did not obtain a decree prior to the effective date of the amendment to section 6, and that the decree which became effective August 18, 1944, in favor of the original plaintiffs does not give appellees any rights because: (1) There was then no decree in their favor; (2) intervenors take the case as they find it, and the law had been changed from what it was at the date of the original decree; (3) no cases have been cited holding that appellees, suing after the amendment of a statute has barred recovery, have, through the device of intervention, the same rights as those enjoyed by the original plaintiffs, who obtained decrees before such restrictive amendment to the statute was enacted.

A taxpayer who has voluntarily or involuntarily paid his taxes, whether legal or otherwise, can recover them only by virtue of a statute enacted as a matter of grace by the legislature. People ex rel. Eitel v. Lindheimer, 371 Ill. 367, 21 N.E.2d 318;LeFevre v. County of Lee, 353 Ill. 30, 186 N.E. 536;Davis v. Board of Education, 323 Ill. 281, 154 N.E. 127;Yates v. Royal Ins. Co., 200 Ill. 202, 65 N.E. 726. We held, in the Lindheimer case and in Peoples Store of Roseland v. McKibbin, 379 Ill. 148, 39 N.E.2d 995, that no one has a vested right in the continuance of a remedial law, and that it may be repealed or amended at any time before the final judgment of the court becomes effective. Even though the decree had been entered in this case in favor of the appellees we have been on appeal that a curative act enacted after the entry of the judgment in the lower court, but before that of this court, would be effective. People ex rel. Toman v. B. Mercil & Sons Plating Co., 378 Ill. 142, 37 N.E.2d 839.

It is contended, however, by appellees that section 6, as amended, did not take effect until January 1, 1946. The basis of this contention lies in the fact that section 12 of the Retailers' Occupation Tax Act was amended by a separate act (Laws of 1945, p. 1265), which provided for appeals from final orders and judgments made by the circuit or superior courts upon a reviewof the Department's decision of cases arising under the act. Section 2 of this amendment provides the act shall be effective January 1, 1946. The principal change in section 12 lies in the fact that before the amendment the procedure for appeals was set out in detail, while now section 12 only makes provision for review, but leaves the details to amended section 6.

Appellees contend the date on which section 12, as amended, takes effect controls the date upon which section 6, as amended, becomes effective. This...