{ "id": 2766273, "name": "William V. Johnson et al., Plaintiffs-Appellants, v. Marshall Field and Company et al., Defendants-Appellees; (Ronald S. Bailis et al., Plaintiffs-Appellants, v. Goldblatt Brothers, Inc. et al., Defendants-Appellees.)", "name_abbreviation": "Johnson v. Marshall Field & Co.", "decision_date": "1972-11-29", "docket_number": "No. 56215", "first_page": "937", "last_page": "944", "citations": [ { "type": "official", "cite": "8 Ill. App. 3d 937" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "1 Ill.2d 509", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5315485 ], "opinion_index": 0, "case_paths": [ "/ill-2d/1/0509-01" ] }, { "cite": "389 Ill. 263", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2505265 ], "opinion_index": 0, "case_paths": [ "/ill/389/0263-01" ] }, { "cite": "371 Ill. 367", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2520677 ], "opinion_index": 0, "case_paths": [ "/ill/371/0367-01" ] }, { "cite": "127 Ill.App.2d 1", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2473723 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/127/0001-01" ] }, { "cite": "384 Ill. 283", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2489801 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/ill/384/0283-01" ] }, { "cite": "355 Ill. 104", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5286009 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/ill/355/0104-01" ] }, { "cite": "352 Ill. 441", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5294795 ], "weight": 2, "year": 1934, "opinion_index": 0, "case_paths": [ "/ill/352/0441-01" ] } ], "analysis": { "cardinality": 631, "char_count": 15990, "ocr_confidence": 0.764, "pagerank": { "raw": 6.953181076708474e-08, "percentile": 0.42157033093435176 }, "sha256": "4ee2254b5b2ff47f7eb2529f08b347a258be0901661040b7382b83392287a1a3", "simhash": "1:f5e194aa6efcb8d0", "word_count": 2562 }, "last_updated": "2023-07-14T14:39:49.359959+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "William V. Johnson et al., Plaintiffs-Appellants, v. Marshall Field and Company et al., Defendants-Appellees.\u2014(Ronald S. Bailis et al., Plaintiffs-Appellants, v. Goldblatt Brothers, Inc. et al., Defendants-Appellees.)" ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE DIERINGER\ndelivered the opinion of the court:\nThe plaintiffs appeal from an order entered in the Circuit Court of Cook County on April 8, 1971, dismissing Count II of their complaint. Count II of the complaint was brought by the plaintiffs individually and as members of the class of persons they represent, to recover that sum of money in excess of the 4% Use Tax charged by the defendant retailers on selling prices of tangible personal property sold in those municipalities which impose a Municipal Retailers\u2019 Occupation Tax pursuant to the Municipal Retailers\u2019 Occupation Tax Act. (Ill. Rev. Stat., ch. 24, sec. 8 \u2014 11\u20141.) In Count II the plaintiffs sought to recover an amount of money from the defendants for an unspecified time prior to the filing of the complaint. The plaintiffs also appeal from that part of the order entered by the trial court on April 8,1971, striking Paragraph 10 of Count I of their complaint. Paragraph 10 of Count I alleged violations of certain sections of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat., ch. 121%, sec. 312 (9) and (12)), on the part of the defendants in collection of the Municipal Retailers\u2019 Occupation Tax.\nThe issues presented for review are: (1) whether the trial court properly dismissed Count II of the plaintiffs\u2019 complaint; and (2) whether the trial court properly struck Paragraph 10 of Count I of the plaintiffs\u2019 complaint which alleged the defendants were in violation of the Uniform Deceptive Trade Practices Act.\nOn August 24, 1970, William V. Johnson, individually, and as a member of a class of persons in Illinois who purchased tangible personal property at retail in municipalities imposing a Municipal Retailers\u2019 Occupation Tax, filed a complaint in the Circuit Court of Cook County against certain named defendants. Similarly, on September 9, 1971, Ronald S. Bailis, individually, and as a member of the same class as alleged in the Johnson complaint, filed a complaint in the Circuit Court of Cook County against other named defendants. Both complaints were subsequently consolidated for trial. On April 8, 1971, following a hearing on motions to dismiss the complaints, joined in by all the defendants in the consolidated cases, the trial court entered an order dismissing Count II of the plaintiffs\u2019 complaint with prejudice and without leave to amend. The trial court, in its order of April 8, 1971, stated Count II of the plaintiffs\u2019 complaint was dismissed because it did not allege a cause of action which satisfied the requisites of a class action for the recovery of money. In the same order, the trial court dismissed Paragraph 10 of Count I of the plaintiffs\u2019 complaint, wherein violations of the Uniform Deceptive Trade Practices Act by the defendants were alleged, as being substantially insufficient in law. The plaintiffs herein appeal from these findings by the trial court.\nThe first issue presented for review is whether the trial court properly dismissed Count II of tire plaintiffs\u2019 complaint. The plaintiffs contend the trial court\u2019s dismissal of Count II, for failure to allege a cause of action which satisfies the requisites of a class action for the recovery of money, was error.\nIn support of their contention that they have stated a satisfactory cause of action, the plaintiffs rely on the assertion that their cause of action is statutory since it arises from a violation of the Municipal Retailers\u2019 Occupation Tax. To further support their argument as to a statutory cause of action, the plaintiffs rely on certain decisions which arose under the predecessor to the Municipal Retailers\u2019 Occupation Tax, the Retailers\u2019 Occupation Tax. These decisions are, namely, Winter v. Barrett (1933), 352 Ill. 441; Reif v. Barrett (1934), 355 Ill. 104; and Peoples Drug Shop, Inc. v. Moysey (1943), 384 Ill. 283. The plaintiffs also attempt to draw a parallel between the instant case and the decision in Pierce v. Pacini (1970), 127 Ill.App.2d 1, an action which arose under the Service Occupation Tax Act.\nWe find the decisions relied upon by the plaintiffs in support of their contention easily distinguished in light of certain considerations which have been brought before this court. The first such consideration is the action of the Illinois General Assembly, which passed House Bill 2176 on June 24, 1971. House Bill 2176, effective July 1, 1971, amended the Municipal Retailers\u2019 Occupation Tax Act (Ill. Rev. Stat., ch. 24, sec. 8 \u2014 11\u20141) and provided in part:\n\u201cPreamble\nThis act to amend the \u2018Municipal Retailers\u2019 Occupation Tax Act\u2019 and the \u2018Municipal Service Occupation Tax Act\u2019 expresses the intent of the General Assembly, and declares that intent to have been, since the inception of those Acts, that persons subject to the Municipal Retailers\u2019 Occupation Tax and Municipal Service Occupation Tax may reimburse themselves for their seller\u2019s or serviceman\u2019s tax liability under such taxes by separately stating the amount of such taxes as an additional charge. Be it enacted by the People of the State of Illinois, represented in the General Assembly:\n# # #\nPersons subject to any tax imposed pursuant to the authority granted in this Section may reimburse themselves for their seller\u2019s tax liability by separately stating such tax as an additional charge, which charge may be stated in combination, in a single amount, with State tax which sellers are required to collect under the \u2018Use Tax Act\u2019, pursuant to such bracket schedules as the Department may prescribe.\u201d\nThe plaintiffs contend the passage of House Bill 2176 is not reflective of the legislative intent of the Municipal Retailers\u2019 Occupation Tax Act passed in 1951. We do not accept this contention as valid. The law in Illinois is well settled that statutes are prospective in their operation and will not be construed to have retrospective operations unless the language used in the statute is so clear that it will admit of no other construction. (People ex rel. Eitel v. Lindheimer (1939), 371 Ill. 367.) Moreover, it has been consistently held that the General Assembly\u2019s original intent may be ascertained from a subsequent statutory amendment. (Lubezny v. Ball (1945), 389 Ill. 263.) The situation presented by the General Assembly\u2019s passage of House Bill 2176, wherein it amends the Municipal Retailers\u2019 Occupation Tax Act (Ill. Rev. Stat., ch. 24, sec. 8\u201411\u20141), is a clear example of the retrospective operation of a statute through the passage of a subsequent statutory amendment. We, therefore, reject the plaintiffs\u2019 contention that the General Assembly\u2019s passage of House Bill 2176 is not reflective of the legislative intent of the Municipal Retailers\u2019 Occupation Tax Act.\nA second consideration in opposition to the plaintiffs\u2019 contention that the trial court erred in dismissing Count II of their complaint for failing to allege a satisfactory cause of action is the general practice of the Illinois Department of Revenue. It is the practice of the Department of Revenue to establish such bracket schedules as are necessary for the collection of taxes by retailers throughout the state. The Department of Revenue in Use Tax Rule 4 (5), 1 CCH State Tax Reporter, Ill., par. 63 \u2014 031, established a tax collection bracket schedule wherein a retailer who is subject to the 1% Municipal Retailers\u2019 Occupation Tax and who elects to shift the burden of that tax to his customer while collecting the 4% Use Tax can utilize the bracket schedule and shift the burden of the Municipal Retailers\u2019 Occupation Tax to his customer.\nThe plaintiffs challenge the bracket schedule established by the Department of Revenue in Use Tax Rule 4(5), supra, on the ground that such schedule is illegal and void. The basis for the plaintiffs\u2019 assertion is their view that the Department of Revenue has no authority to extend the substantive provisions of a legislative action, namely, the Municipal Retailers\u2019 Occupation Tax Act, in the absence of statutory authority to do so. In support of the claim the plaintiffs once again rely on those decisions which arose under the predecessor to the Municipal Retailers\u2019 Occupation Tax, the Retailers\u2019 Occupation Tax. The decisions are Winter v. Barrett, 352 Ill. 441; Reif v. Barrett, 355 Ill. 104; and Peoples Drug Shop, Inc. v. Moysey, 384 Ill. 283. The long recognized principle of statutory construction that a long-standing interpretation of a statute by an agency responsible for its enforcement may be entitled to great weight but that the agency\u2019s interpretation is not necessarily binding on the court has also been raised by the plaintiffs in support of their contention. Mississippi River Fuel v. Illinois Commerce Commission (1953), 1 Ill.2d 509.\nBoth arguments urged in support of the plaintiffs\u2019 contention that the Department of Revenue has no authority to extend the substantive provisions of a legislative action would be well taken if the language of House Bill 2176 did not clearly authorize the use of \"such bracket schedules as the Department [of Revenue] may prescribe.\u201d Any doubt as to the absence of statutory authority for the Department of Revenue to establish a bracket schedule wherein retailers are enabled to reimburse themselves for their tax liability is dispelled by the enactment of House Bill 2176. We therefore reject tire plaintiffs\u2019 challenge of the Department of Revenue bracket schedule based on their reliance on both prior case law and principles of statutory construction.\nA final consideration which weighs heavily in opposition to the plaintiffs\u2019 claim that they have alleged a satisfactory cause of action is the assertion by tire defendant retailers of a contractual right to reimburse themselves for the tax liability imposed on them by the Municipal Retailers\u2019 Occupation Tax. Although the retailers state the existence of such contractual right is not expressly recited in the plaintiffs\u2019 allegations, the presence of such right is implicit in the allegations. More specifically, tire retailers claim a contractual right is implied from the plaintiffs\u2019 allegations wherein they assert the retailers charged, and the plaintiffs paid, that amount needed to cover the Municipal Retailers\u2019 Occupation Tax in addition to the Use Tax as condition to the plaintiffs receiving the goods sought. Since it is elementary that a purchase and sale of goods is a contract, the parties having reached a meeting of the minds, the retailers assert a contractual right to reimburse themselves for the Municipal Retailers\u2019 Occupation Tax is implied by the plaintiffs\u2019 payment of that additional amount as a condition of sale.\nThis consideration raised by the retailers, although not as strong as the previous two, is worthy of merit in determining whether the plaintiffs have alleged a satisfactory cause of action. In an attempt to overcome the retailers\u2019 argument that the defendants have a contractual right to reimburse themselves, the plaintiffs rely on the case of Peoples Drug Shop, Inc. v. Moysey, supra, which arose under the Retailers\u2019 Occupation Tax. Unlike the instant case, however, Peoples Drug Shop presented a situation wherein the party contesting the payment of the tax refused to pay the Retailers\u2019 Occupation Tax when billed for it. In the instant case, the plaintiffs admittedly paid the Municipal Retailers\u2019 Occupation Tax when it was charged as a condition of sale. In light of this distinguishing aspect of the instant case, we reject the plaintiffs\u2019 reliance on Peoples Drug Shop, Inc. v. Moysey, and accept the retailers\u2019 argument that they have a contractual right to reimburse themselves.\nIn light of the three considerations discussed herein, we reject the plaintiffs\u2019 argument that the trial court erred in dismissing Count II of their complaint for failure to allege a satisfactory cause of action. Furthermore, since we have rejected the plaintiffs\u2019 argument for the aforementioned reasons, we find it unnecessary to discuss those class action contentions which the plaintiffs have raised.\nThe second issue presented for review is whether the trial court properly struck Paragraph 10 of Count I of the plaintiffs\u2019 complaint, which alleged violations by the defendant retailers of certain sections of the Uniform Deceptive Trade Practices Act. Ill. Rev. Stat., ch. 121%, sec. 312 (9) and (12).\nThe plaintiffs contend the trial court erred when it struck Paragraph 10 of Count I of their complaint as being substantially insufficient in law. The basis for the plaintiffs\u2019 contention is their assertion that the actions of the defendants in passing the burden of the 1% Municipal Retailers\u2019 Occupation Tax on to the customer when the customer has no tax liability is a deceptive trade practice. In arriving at this conclusion, the plaintiffs primarily rely on section 312 (12) of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat., ch. 121%, sec. 312 (12) ), which provides in part:\n\u201cA person engages in a deceptive trade practice when, in the course of his business, vocation or occupation, he:\ne * *\n(12) engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.\u201d\nSince the defendants were acting in compliance with Use Tax Rule 4(5), supra, set forth by the Department of Revenue, when they reimbursed themselves for the Municipal Retailers\u2019 Occupation Tax they were required to pay by separately stating the amount of the tax as an additional charge in combination with the Use Tax, which they were required to collect, we must rely upon section 314 (1) of the Uniform Deceptive Trade Practices Act, which states:\n\u201cThis Act does not apply to:\n(1) conduct in compliance with the orders or rules of or a statute administered by a Federal, state or local governmental agency.\u201d\nIn light of this statutory section, and because the defendants were acting in compliance with the rules of a state agency, section 312 (12) of the Uniform Deceptive Trade Practices Act will not be applied. We, therefore, necessarily find the defendants were not performing a deceptive trade practice, and the trial court properly struck Paragraph 10 of Count I of the plaintiffs\u2019 complaint where this was alleged.\nFor the reasons stated herein, the judgment of the Circuit Court of Cook County will be affirmed.\nJudgment affirmed.\nADESKO and EGAN, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE DIERINGER" } ], "attorneys": [ "Stewart I. Gartner and Frank Glazer, both of Chicago, for appellants.", "For appellees in Johnson v. Marshall Field and Co.:", "Wilson & McIlvaine, of Chicago, (Kent Chandler, Jr. and Robert F. Forrer, of counsel,) for appellee Marshall Field and Co.", "McDermott, Will & Emery, of Chicago, (Hamilton Smith and William G. Migely, of counsel,) for appellees Sears, Roebuck & Co. and Jewel Co.", "Hopkins, Sutter, Owen, Mulroy & Davis, of Chicago, (Thomas W. Mulroy, Robert W. Patterson, and Michael F. Duhl, of counsel,) for appellee Montgomery Ward & Co.", "Sidley & Austin, of Chicago, (J. Robert Barr and J. Douglas Donerfeld, of counsel,) for appellees Carson Pirie Scott & Co. and National Tea Co.", "For appellees in Bailis v. Goldblatt Brothers, Inc.:", "Arvey, Hodes & Mantynband, of Chicago, (Herman Smith, of counsel,) for appellees Great Atlantic & Pacific Tea Co. and Walgreen Co.", "Fiffer & D\u2019Angelo, of Chicago, (Alan N. Lasky, of counsel,) for ap pellee Steinberg-Baum Co.", "Crowley, Barrett & Karaba, of Chicago, (Edward W. Barrett, of counsel,) for appellee Dominick\u2019s Finer Foods, Inc.", "Morton Siegel, of Chicago, for appellee Armanetti, Inc.", "Williams and Leonard, Ltd., of Chicago, (Robert F. Sharp, of counsel,) for appellee F. W. Woolworth Co.", "Bernard Rosencranz, of Chicago, for appellee Goldblatt Bros., Inc.", "James E. Manning, of Chicago, for appellee High-Low Foods, Inc.", "Jack Edward Dwork, of Chicago, for appellee Kroch\u2019s & Brentano\u2019s Inc." ], "corrections": "", "head_matter": "William V. Johnson et al., Plaintiffs-Appellants, v. Marshall Field and Company et al., Defendants-Appellees.\u2014(Ronald S. Bailis et al., Plaintiffs-Appellants, v. Goldblatt Brothers, Inc. et al., Defendants-Appellees.)\n(No. 56215;\nFirst District \u2014\nNovember 29, 1972.\nStewart I. Gartner and Frank Glazer, both of Chicago, for appellants.\nFor appellees in Johnson v. Marshall Field and Co.:\nWilson & McIlvaine, of Chicago, (Kent Chandler, Jr. and Robert F. Forrer, of counsel,) for appellee Marshall Field and Co.\nMcDermott, Will & Emery, of Chicago, (Hamilton Smith and William G. Migely, of counsel,) for appellees Sears, Roebuck & Co. and Jewel Co.\nHopkins, Sutter, Owen, Mulroy & Davis, of Chicago, (Thomas W. Mulroy, Robert W. Patterson, and Michael F. Duhl, of counsel,) for appellee Montgomery Ward & Co.\nSidley & Austin, of Chicago, (J. Robert Barr and J. Douglas Donerfeld, of counsel,) for appellees Carson Pirie Scott & Co. and National Tea Co.\nFor appellees in Bailis v. Goldblatt Brothers, Inc.:\nArvey, Hodes & Mantynband, of Chicago, (Herman Smith, of counsel,) for appellees Great Atlantic & Pacific Tea Co. and Walgreen Co.\nFiffer & D\u2019Angelo, of Chicago, (Alan N. Lasky, of counsel,) for ap pellee Steinberg-Baum Co.\nCrowley, Barrett & Karaba, of Chicago, (Edward W. Barrett, of counsel,) for appellee Dominick\u2019s Finer Foods, Inc.\nMorton Siegel, of Chicago, for appellee Armanetti, Inc.\nWilliams and Leonard, Ltd., of Chicago, (Robert F. Sharp, of counsel,) for appellee F. W. Woolworth Co.\nBernard Rosencranz, of Chicago, for appellee Goldblatt Bros., Inc.\nJames E. Manning, of Chicago, for appellee High-Low Foods, Inc.\nJack Edward Dwork, of Chicago, for appellee Kroch\u2019s & Brentano\u2019s Inc." }, "file_name": "0937-01", "first_page_order": 959, "last_page_order": 966 }