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Bee Jay's Truck Stop v. Dept. of Revenue

OPINION FILED AUGUST 9, 1977.

BEE JAY'S TRUCK STOP, INC. PLAINTIFF-APPELLANT,

v.

THE DEPARTMENT OF REVENUE, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. EARL ARKISS, Judge, presiding.

MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 26, 1977.

Plaintiff, Bee Jay's Truck Stop, Inc., appeals from an order of the circuit court which dismissed plaintiff's complaint for review of a final assessment issued by defendant, the Department of Revenue of the State of Illinois. *fn1 Defendant, after a hearing, had assessed plaintiff's tax liability for unpaid Illinois motor fuel tax in the amount of $757,414.33, plus interest. The circuit court granted defendant's motion to dismiss plaintiff's complaint for review because plaintiff failed to post a bond in the amount of the assessment or to petition the court for a lien in lieu of bond within 20 days of filing suit as required by section 12 of the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1975, ch. 120, par. 451). In addition, the circuit court entered judgment in defendant's favor for $842,495.73, the final assessment plus further interest.

On review plaintiff asserts it lost its day in court. On the other hand, defendant urges that, because this court lacks jurisdiction to hear it, plaintiff's appeal must be dismissed. Plaintiff contends that section 12 is unconstitutionally vague and, therefore, violates due process requirements. For the reasons expressed herein, we believe that this court has appropriate jurisdiction and that the challenged statute is constitutional.

I.

• 1 Defendant claims that this court does not have jurisdiction because the filing of bond in the circuit court was a statutorily imposed jurisdictional prerequisite. Since plaintiff failed to post, within 20 days of filing suit for review, either a bond in the amount of the assessment or, within said 20 days, to petition the court for a lien in lieu of bond, defendant maintains that plaintiff is now barred from pursuing appellate review. We disagree.

Article VI, section 6 of the 1970 Illinois Constitution states that appeals from final judgments of the circuit court are a matter of right with certain exceptions not here applicable. The section also provides that this court has "such powers of direct review of administrative action as provided by law." (Ill. Const. 1970, art. VI, § 6.) From this article defendant deduces that a bond was required because there is no constitutional right to appeal from administrative proceedings; and the right to appeal from such proceedings is not necessarily essential to due process, but is a right which may or may not be granted in a given situation as the legislature reasonably deems appropriate Board of Education v. County Board of School Trustees (1963), 28 Ill.2d 15, 18, 191 N.E.2d 65; Board of Education v. Gates (2d Dist. 1974), 22 Ill. App.3d 16, 20, 316 N.E.2d 525.

Defendant's analysis is lacking in two respects. First, whether plaintiff's right to appeal emanates from either the Constitution or the legislature is of no importance in this case if, in fact, plaintiff has such a right. Second, the instant appeal is not an appeal from administrative proceedings. Although plaintiff's complaint in the circuit court was for review of defendant's decision in an administrative hearing, plaintiff's appeal in this court is an appeal from the circuit court's order granting defendant's motion to dismiss plaintiff's complaint and entering judgment in defendant's favor. Thus, plaintiff's action in the court below was for administrative review; plaintiff's appeal in this court is for review of a final order or judgment.

Even if plaintiff did not properly exercise its administrative rights by posting bond, plaintiff nevertheless has a right to appellate review. Nothing in section 12 bars this appeal. Furthermore, that section specifically invokes the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264 et seq.). Section 13 of that Act provides:

"Any final decision, order or judgment of the Circuit Court entered in an action to review a decision of an administrative agency may be reviewed by the Appellate Court and Supreme Court in accordance with Sections 4 and 6 of Article VI of the Constitution of the State of Illinois." (Ill. Rev. Stat. 1975, ch. 110, par. 276.)

This section has been amended (effective October 1, 1976) since the institution of the present appeal. Such amendment only strengthens our statement of jurisdiction and clarifies our reasons therefor:

"A final decision, order or judgment of the Circuit Court, entered in an action to review a decision of an administrative agency, is reviewable by appeal as in other civil cases." (Ill. Rev. Stat. 1976 Supp., ch. 110, par. 276.)

We emphasize that the amendment was necessitated by the 1970 Constitution in order to correct language and erroneous references and to clarify ambiguous meanings. Ill. Rev. Stat. 1976 Supp., ch. 110, par. 276, amended by P.A. 78-711, § 1, eff. Oct. 1, 1973; P.A. 79-1366, § 17, eff. Oct. 1, 1976; see also Ill. Ann. Stat., ch. 110, par. 276 (Smith-Hurd Supp. 1977).

While we do not approve of plaintiff's failure to post bond or to petition the court for a lien in lieu of bond within 20 days, such failure did not ...


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