DocketNumber: No. 26097. Writ awarded.
Judges: Stone
Filed Date: 5/13/1942
Status: Precedential
Modified Date: 10/19/2024
On leave granted, Allied Bridge Construction Co. and thirty-two other co-petitioners, filed their original petition for mandamus to require respondent, as Director of Finance, to accept certain credit memoranda when assigned, and to furnish forms necessary to such assignment. Petitioners allege they were each engaged in the general building or construction contracting business in this State, principally in Cook county; that this court in People ex rel. Blome v.Nudelman,
February 21, 1940, this court in People ex rel. Blome v. Nudelman, supra, entered its judgment directing the circuit court of Cook county to enter a decree directing the then Director of the Department of Finance to pay to plaintiffs in that case, who are petitioners here, their proportionate share of funds remaining in an appropriation of $100,000 for refunds of occupation taxes erroneously paid, and to issue credit memoranda to each of plaintiffs, petitioners here, for the balance due for refunds which could not then be paid in cash. The circuit court, upon remandment, complied with that judgment. On March 2, 1940, credit memoranda were issued to each of petitioners here, for the unpaid balance of refund due. These memoranda are now unredeemed and unpaid and the respondent refuses to issue to petitioners necessary forms to enable them to transfer them.
In People ex rel. Swartchild Co. v. Carter,
When the judgment in People ex rel. Blome v.Nudelman, supra, was rendered and when this petition was filed, said section 6 contained a plain and unambiguous provision for refund of taxes and was distinctly a refunding statute.(People ex rel. Stone v. Nudelman,
The judgment of this court in the Stone and Blomecases is the law as to petitioners' rights and is resjudicata as to their rights to assign or transfer these credit memoranda. While it has been held that generally there is no vested right in a public law, yet, when, as here, rights which arise under a statute are decreed by a court of competent jurisdiction, the rights decreed are vested. (Wilson v.Fisher,
The department stamped across the face of each credit memorandum issued to petitioners a statement that the same is not transferable or assignable. In People ex rel. Stone v.Nudelman, supra, it was held that the form of the credit memorandum is not prescribed by the act and that the department can neither abridge nor extend the act by a construction which it placed upon it. It necessarily follows that the department having, as directed by this court, issued to petitioners credit memoranda showing the amount of refund due, which, as this court has held, were assignable, the department was without authority to so stamp the memoranda and such act did not and does not affect their assignability. Subsequent amendment of section 6 in no way affected the vested right of petitioners here to assign these credit memoranda.
Respondent urges that a demand upon him and his refusal to comply must be averred and proved, and that such is lacking here. This question was raised in People ex rel. Adams v.McKibbin,
We are of the opinion that petitioners are entitled to the writ of mandamus against the Director of Finance of the State of Illinois requiring him to issue to petitioners necessary forms to permit them to transfer their credit memoranda according to the law as it existed at the time the petition herein was filed, and the writ of mandamus will issue requiring him so to do.
Writ awarded. *Page 68
People Ex Rel. Swartchild & Co. v. Carter ( 1941 )
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People Ex Rel. Herlihy Mid-Continent Co. v. Nudelman ( 1938 )
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