Herlihy Mid-Continent Co. v. Nudelman

Decision Date02 February 1938
Docket NumberNo. 24282.,24282.
Citation367 Ill. 600,12 N.E.2d 638
PartiesHERLIHY MID-CONTINENT CO. et al. v. NUDELMAN, Director of Finance.
CourtIllinois Supreme Court


Suit by the Herlihy Mid-Continent Company and another against S. L. Nudelman, Director of Finance, wherein the S. A. Healy Company and others intervened. From an adverse decree, plaintiffs and interveners appeal.

Affirmed in part and reversed in part.

FARTHING, C.J., dissenting.Appeal from Circuit Court, Cook County; Harry M. Fisher, judge.

T. A. Sheehan, William A. Bither, and Litsinger, Healy, Reid & Bye, all of Chicago, for appellants.

Otto Kerner, Atty. Gen. (Montgomery S. Winning, of Springfield, and Martin Philipsborn and William C. Clausen, both of Chicago, of counsel), for appellee.

ORR, Justice.

The Herlihy Mid-Continent Company and the Underground Construction Company filed a complaint in the circuit court of Cook county against the Director of Finance and the treasurer of the state of Illinois to enjoin the collection of the Illinois retailers' occupation tax and to recover certain taxes theretofore paid by complainants. The S. A. Healy Company and four other contractors were permitted to intervene as parties plaintiff and, by agreement, the complaint was dismissed as to the treasurer of the state of Illinois. The circuit court held that rule No. 6 of the Department of Finance, which required plaintiffs to pay a tax measured by the total receipts from their contracts, was void, and enjoined the Director of Finance from collecting the tax so far as it was measured by certain items claimed by him to be properly included. As to the remaining items, the complaint was dismissed for want of equity. This is a joint appeal from that decree, prosecuted in the names of the original parties plaintiff and the intervening petitioners.

The plaintiffs and intervening petitioners (hereafter referred to as plaintiffs) are contractors employed by the Sanitary District of Chicago under written contracts for the construction of concrete sewers and tunnels and for the building of sewage treatment works. The contracts recite that they are for work and labor. The compensation for the construction of sewers is based upon linear feet. Two types of materials were used or consumed in the performance of these contracts: (1) Temporary materials used for shoring and bracing, for the building of bulkheads and cofferdams, and for the construction of railroads and voltage lines to be used by workmen; and (2) the materials that were consumed in the permanent structures; sand, cempent, gravel, reinforcing steel, and the like. The court below found that the materials of the first type remained the property of plaintiffs and were not subject to the tax. Thus, we are concerned only with that part of the decree which held taxable the materials which were incorporated in the projects themselves.

It was stipulated by the parties, as to the sewer contracts, that the cost of materials incorporated in them represented only 25 per cent. of the total contract price and, as to the sewage treatment works, that the cost of such materials represented 33 1/3 per cent. of that price. The court in its decree found that the completed structures could be used only by a governmental agency performing services similar to the sanitary district, and were not property of a type which is commonly bought or sold for commercial purposes. It also found that if the structures were razed, no salvage would be realized except as to certain moveable equipment, apparently referring in this latter connection to several manhole covers, the cost of which was negligible when compared with the total contract price, and to sludge removal machinery which was not furnished by plaintiffs. Notwithstanding these findings, the circuit court, as stated above, held that plaintiffs were liable for a tax measured by the cost of the sand, cement, gravel, steel, and other materials entering into the permanent structures.

At the outset, it must be remembered that the tax here questioned is not a privilege tax imposed upon purchasers, like the motor fuel tax, People v. Deep Rock Oil Corp., 343 Ill. 388, 175 N.E. 572; it is not a property tax upon the items sold, Winter v. Barrett, 352 Ill. 441, 186 N.E. 113, 89 A.L.R. 1398; nor is it a sales tax, Reif v. Barrett, 355 Ill. 104, 188 N.E. 889. The tax involved here is an occupation tax upon a class of vendors and is measured by the gross receipts from their sales. Reif v. Barrett, supra. The question to be decided, and the one involved in most of the previous cases under this act, is the exact type of vendor affected by it.

The original Retailers' Occupation Tax Act was entitled ‘An Act in relation to a tax upon persons engaged in the business of selling tangible personal property at retail,’ etc. Laws of 1933, p. 938. That act was held unconstitutional, Winter v. Barrett, supra, and the statute enacted to replace it was entitled ‘An Act in relation to a tax upon persons engaged in the business of selling tangible personal property to purchasers for use or consumption.’ Laws 1933, p. 924, as amended, Ill.Rev.Stat.1937, c. 120, § 440, et seq. The title of the second act is broader than that of the first, and we have held that, ‘by the omission of the words ‘at retail’ from the title and the substitution therefor of the words ‘to purchasers for use or consumption,’ the Legislature made certain that the definition of ‘sale at retail’ in the present act is not limited by what was formerly contained as a part of the title.' Franklin County Coal Co. v. Ames, 359 Ill. 178, 194 N.E. 268, 270. Thus, the class of vendors subject to the act must be determined from a construction of the provisions of the act itself. Section 2, Ill.Rev.Stat.1937, c. 120, § 441, provides that ‘a tax is imposed upon persons engaged in the business of selling tangible personal property at retail in this State,’ etc. Section 1, Ill.Rev.Stat.1937, c. 120, § 440 defines ‘sale at retail’ as ‘any transfer of the ownership of, or title to, tangible personal property to the purchaser, for use or consumption and not for resale in any form as tangible personal property, for a valuable consideration.’ Not all vendors of personal property are subject to the act, however. The last paragraph of section 1 provides that: ‘The isolated or occasional sale of tangible personal property at retail by a person who does not hold himself out as engaging in the business of selling such tangible personal property at retail does not constitute engaging in such business.’

We have eliminated, by construction, certain other types of vendors where the sales involved are a mere incident ot the practice of a profession, Babcock v. Nudelman, Ill.Sup., 12 N.E.2d 635, or the performance of personal services requiring skill or artistic ability. Burgess Co. v. Ames, 359 Ill. 427, 194 N.E. 565;Adair Printing Co. v. Ames, 364 Ill. 342, 4 N.E.2d 481;A.B.C. Electrotype Co. v. Ames, 364 Ill. 360, 4 N.E.2d 476. On the other hand, where the services rendered are an inseparable part of a commercial transaction, the vendor is taxable if his business satisfies the other requirements of the statute. Brevoort Hotel Co. v. Ames, 360 Ill. 485, 196 N.E. 461;Swain Nelson & Sons Co. v. Department of Finance, 365 Ill. 401, 6 N.E.2d 632. But even if a substantial portion of a business is the selling of tangible personal property, it is not necessarily subject to the tax. Further refinements must be made. We have held that public utilities are not subject to the act, People's Gas Light & Coke Co. v. Ames, 359 Ill. 152, 194 N.E. 260, even though for some purposes at least, their commodities may be characterized as personal property. People v. Menagas, 367 Ill. 330, 11 N.E.2d 403. To determine whether building contractors, like plaintiffs here, are within the meaning of the act, reference must be made again to the definition of ‘sale at retail’ provided by the Legislature.

The merchandising process often involves several sales before an article reaches the hands of the ultimate consumer. Under the definition in section 1, only that person transferring the goods ‘for use or consumption and not for resale’ is subject to the tax. The quantity sold is no test under this definition, Franklin County Coal Co. v. Ames, supra; it is the purpose for which the property is sold that is determinative. Under the contracts before us in this case, plaintiffs agreed to build sewers and buildings requiring the use of sand, gravel, cement, and steel. They were the persons ‘using’ these materials, even though after their metamorphosis they became part of a structure whose title vested in the Sanitary District of Chicago. While in one sense, title to these materials passed from plaintiffs to the sanitary district, yet the niceties of property law have no place in the construction of a statute of this type. Plaintiffs did not hold themselves out as vendors of the materials furnished, nor did the sanitary district select or purchase the materials used, although it set up certain requirements and specifications in its contract. The identity of the materials used in the construction was destroyed and, as properly found by the lower court, the completed structures had no commercial value as salvage or otherwise. What the Sanitary District of Chicago bought under its contract, if there was a sale at all, were sewers and sewage treatment works, completed and ready for use. Under these...

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