35 N.E.2d 64 | Ill. | 1941
Appellant, Swartchild Company, filed its petition formandamus in the circuit court of Cook county against A.M. Carter, as Director of Finance, for the purpose of compelling the latter to furnish a credit memorandum under section 6 of the Retailers' Occupation Tax act, (Ill. Rev. Stat. 1939, chap. 120, par. 445,) for over-payment of said tax amounting to $3408.75. Upon suggestion made, George B. McKibben, the successor to A.M. Carter, has been substituted as respondent.
Appellant was in the business of selling, at wholesale, watch and clock parts and jewelry findings. The basis of the claim lies in the fact that this court held in C. E. Marshall Co. v. Ames,
The answer of the defendant sets forth that section 6, supra, violates the constitution of the State of Illinois in several different ways. The circuit court held the act unconstitutional and denied the writ. The appeal, therefore, comes directly to this court.
Section 6 of said act is as follows: "If it shall appear that an amount of tax, penalty or interest has been paid which was not due under the provisions of this act, whether as the result of a mistake of fact or an error of law, then such amount shall be credited against any tax due, or to become due, under this act, from the person who made the erroneous payment, or such amount shall be refunded to such person by the Department," etc. Article 19 of the rules and regulations of the Department of Finance is *592 as follows: "Where a taxpayer under the Retailers' Occupation Tax act pays to the Department of Finance an amount of tax, penalty or interest not due under the provisions of the act, either as the result of a mistake of fact or an error of law, such taxpayer should file claim for credit on the form provided by the department for that purpose. In cases where claim for credit is approved, the department will issue a credit memorandum in the amount of the over-payment, which credit may be applied by the taxpayer in satisfaction of subsequent tax liability."
It is claimed that section 6 is unconstitutional because it delegates judicial power to an administrative board, and because there are no procedural requirements set up in section 6 requiring a hearing. If section 6 were a separate and independent act of legislation this argument might be persuasive. However, this section is but a part of a general statute consisting of fifteen or more sections. It is comprehensive in its scope. It imposes a tax (sec. 2); requires each retailer to have a certificate (sec. 2a); requires monthly returns (sec. 3); prescribes procedure on incorrect returns (sec. 4) and on failures to make return (sec. 5); makes provision for a lien, release of lien and foreclosure of lien (secs. 5a, 5c, 5e); and for distraint and redemption from sale (secs. 5f, 5g); makes provision for credits or refunds in cases of erroneous payments (sec. 6); provides for investigation of taxpayers' books for hearing and appeal to correct (sec. 8); for issuance of subpoenas (sec. 10), and power to makes rules and regulations (sec. 12).
The entire act, including all of the sections, must be construed together to ascertain the intent of the legislature. The act, as a whole, has been held constitutional. (Reif v.Barrett,
In determining whether section 6 is void for the reasons asserted we must examine the entire statute and all sections will be construed together. (First Nat. Bank v. Wedron Silica Co.
The point made by appellee that to give to the relator a credit memorandum would bring about an unjust enrichment has been decided adversely to such contention in People v. Nudelman,
In Berman v. Board of Education,
The point made by appellee that this action against the Director of Finance is an action against the State is contrary to our holdings in People v. Nudelman,
We are of the opinion that the objections made to the validity of section 6, as applied to the facts in this case, are without merit; that the petitioner has brought itself clearly within the provisions of the statute, and is entitled to have issued to it a credit memorandum in accordance with section 6, and the rules of the department, for the amount admitted by the answer to have been over-paid.
The judgment of the circuit court is reversed and the cause remanded with directions to issue the writ of mandamus against the Director of the Department of Finance of the State of Illinois, as prayed in the petition.
Reversed and remanded, with directions.
Mr. JUSTICE SHAW, dissenting. *596