Winter v. Barrett

• Decision Date: 10 May 1933
• Docket Number: No. 21960.,21960.
• Citation: Winter v. Barrett, 352 Ill. 441, 186 N.E. 113 (Ill. 1933)
• Parties: WINTER v. BARRETT, Auditor of Public Accounts, et al.
• Court: Illinois Supreme Court

352 Ill. 441

186 N.E. 113

WINTER

v.BARRETT, Auditor of Public Accounts, et al.

No. 21960.

Supreme Court of Illinois.

May 10, 1933.

Suit by Robert Irving Winter, and all other taxpayers similarly situated, against Edward J. Barrett, Auditor of Public Accounts, and others.From a decree in faovr of the complainant, the defendants appeal.

Decree affirmed.

DUNCAN, J., dissenting.Appeal from Circuit Court, Madison County; Jesse R. Brown, judge.

Otto Kerner, Atty. Gen. (Montgomery S. Winning and Royce A. Kidder, both of Springfield, of counsel), for appellants.

Leroy M. Green, of Rockford, I. H. Streeper III, of Alton, Frank G. Thompson, of Mount Vernon, Roy F. Hall, of Rockford, and Roscoe Forth, of Granite City, for appellee.

PER CURIAM.

On March 29, 1933, Robert Irving Winter, a resident taxpayer of Madison county and a retail merchant there engaged in selling tangible personal property at retail, filed a petition for leave to filea bill in the circuit court of said county, on behalf of himself and all other taxpayers similarly situated, against appellants, Edward J. Barrett, auditor of public accounts, John C. Martin, state treasurer, and Joseph J. Rice, director of finance of the state, and the state's attorney, sheriff, and other county officers of said county, to restrain and enjoin the disbursement of public funds of the state appropriated by an act of the General Assembly approved March 22, 1933, commonly known as the Sales Tax Act, and the collection of the tax imposed by that act and the enforcement of the penalties thereby imposed.On April 8, 1933, leave was given by the court to file the bill, and it was filed.Leave was also given to file certain amendments to it, and they were filed.It was alleged in the amended bill, in substance, that section 1, and each and every one of the provisions of the act, including its title, violate and conflict with the Constitution iof Illinois and the Constitution of the United States.To the amended billappellants filed a general demurrer, after the bill was dismissed, as to the county officers aforesaid.After a hearing, the demurrer of appellants was overruled.They elected to stand by their demurrer.The court found and decreed that the act was unconstitutional and void.The court in its decree restrained and enjoined the director of finance from making any expenditure or incurring any expenses by reason of the act and from collecting the tax thereby purported to be levied; restrained and enjoined the auditor of public accounts from drawing any warrant for the expenditure of any money appropriated by the act; restrained and enjoined the state treasurer from countersigning any warrant or paying out any money on any warrant drawn against any appropriation made by the act; and restrained and enjoined these three appellants‘from doing any act or thing toward the collecting of said tax or expending any money or enforcing any penalties provided for in said act.’This is an appeal from that decree.

The sole question presented for determination by this court is whether or not the act aforesaid is constitutional.By his amended billappellee alleges that the act in question is unconstitutional and void, and specifically alleges that it violates section 2 of article 2,sections 13and17 of article 4,section 16 of article 5, andsections 1,2,3, and6 of article 9 of the Constitution of 1870, andsection 1 of article 14 of the Amendments to the Constitution of the United States.He also argues that other sections of the Constitution are violated by the act.

Excepting the enacting clause, we deem it proper and necessary, for reasons which we think later will clearly appear,to set out the entire provisions of the act, including the title thereto, which here follow:

‘An act in relation to a tax upon persons engaged in the business of selling tangible personal property at retail, the disposition thereof and making certain appropriations in connection therewith.

‘Section 1.For the purposes of this act:

“Tangible personal property' does not mean or include farm products or farm produce sold by the producer thereof or motor fuel as defined in the Motor Fuel Tax law approved March 25, 1929, as amended.

“Sale at retail' means any transfer of the ownership of or title to tangible personal property to the consumer for use and not for purposes of re-sale, in any form, for a monetary consideration or for a promise to pay in money.Transactions whereby the possession of the property is transferred but the seller retains the title as security for payment of the selling price, shall be deemed to be sales.

“Selling price' means the price paid or to be paid without any deduction on account of the cost of the property sold, the cost of materials used, labor of service cost, interest or discount paid, or any other expense whatsoever.In the case of sales in which the consideration is partly money and partly something other than money, the selling price shall be only that part paid or to be paid in money.

“Department' means the Department of Finance.

“Commission' means the Illinois Emergency Relief Commission.

“Sec. 2.A tax is imposed upon persons engaged in the business of selling tangible personal property at retail in this State at the rate of three per cent of the gross cash receipts from such sales in this State of tangible personal property made in the course of such business on and after the first day of the next calendar month after the taking effect of this act and prior to July 1, 1935.However, such tax is not imposed upon the privilege of engaging in any business in interstate commerce or otherwise which business may not, under the constitution and statutes of the United States, be made the subject of taxation by this State.

‘Sec. 3.On or before the 15th day of the second calendar month after the taking effect of this act, and on or before the 15th day of each calendar month thereafter until but not including August, 1935, every person engaged in the business of selling tangible personal property at retail in this State during the preceding calendar month shall make a return to the department stating:

‘1.The name of the seller;

‘2.His address or the address of his place of business;

‘3.The total sales at retail of all tangible personal property sold by him in the course of such business during the preceding calendar month;

‘4.The total cash amount refunded by the seller during the preceding calendar month to purchasers on account of tangible personal property returned to him, upon the sale at retail of which, the tax herein imposed had been paid;

‘5.The total cash receipts during the preceding calendar month from the sale at retail of tangible personal property made in the course of such business on and after the first day of the next calendar month after the taking effect of this act;

‘6.The total amount of sales at retail of tangible personal property during the preceding calendar month, made in the course of such business payment for which was not made to he seller during the preceding calendar month; and shall at the same time pay to the department the amount of the tax herein imposed.However, the item of cash refunds shown as provided herein above in subdivision 4 of this section shall be allowed as a credit against the total cash receipts as provided in subdivision 5.Such return shall be made on forms prescribed and furnished by the department, shall be made under oath or affirmation and shall contain such other information as the department may reasonably require.

‘Sec. 4.The department shall pay all moneys received as the proceeds of such tax into the sales tax fund in the State treasury which fund is hereby created.After deducting the expenses of the Department of Finance in administering this act, the balance of such moneys shall be apportioned among the several counties of the State in proportion to their population according to the last preceding United States census.In counties having a population of over 500,000 inhabitants, the moneys so apportioned to any such county shall be expended by the Illinois Emergency Relief Commission to provide relief to residents of such county who by reason of unemployment or otherwise are destitute and in necessitors circumstances.Such relief shall be provided by distributing funds or supplies and by any other means deemed desirable by the commission.For such purpose the commission may make use of and co-operate with the county or any other municipal corporations charged by law with the duty of poor-relief and with local relief agencies.In case the commission determines that the moneys allotted to any such county having a population of over 500,000 inhabitants, or any portion thereof, at any time, are not needed for relief purposes, such moneys or such portion thereof as are not needed for relief purposes shall be paid over, by the commission, to the county superintendent of schools in such county and distributed among the common school district of the county maintaining grades 1 to 8, for educational purposes in accordance with section 216 1/2 of ‘An act to establish and maintain a system of free schools,’ approved June 12, 1909, as amended.

‘In counties having a population of 500,000 inhabitants or less, the moneys so appropriated to any county shall be paid over to the county superintendent of schools of the county and distributed among the common school districts, the high school districts and nonhigh school districts in the county for educational purposes in accordance with ‘An act to establish and maintain a system of free schools,’ approved June 12, 1909, as amended: Provided that the county board of any such county, by two-thirds vote of the entire membership of such board, may determine that the moneys apportioned to such county, or any portion thereof, shall be used to provide relief to residents of the county who, by reason of unempolyment or otherwise, are destitute and in...