Hornof v. Kroger Co.

• Court: Illinois Supreme Court
• Writing for the Court: HOUSE
• Citation: Hornof v. Kroger Co., 35 Ill.2d 125, 219 N.E.2d 512 (Ill. 1966)
• Decision Date: 23 May 1966
• Docket Number: No. 39669,39669
• Parties: Florence HORNOF et al., Appellees, v. The KROGER CO. et al., Appellants. Appeal of the SPERRY & HUTCHINSON COMPANY et al., Separate Appellants.

Page 512

219 N.E.2d 512

35 Ill.2d 125

Florence HORNOF et al., Appellees, v. The KROGER CO. et al., Appellants Appeal of the SPERRY & HUTCHINSON COMPANY et al., Separate Appellants.

No. 39669.

Supreme Court of Illinois.

May 23, 1966.

Rehearing Denied Sept. 21, 1966.

William G. Clark, Atty. Gen., Springfield (Richard A. Michael and John J. Toole, Asst. Attys. Gen., of counsel), for appellant Director of Revenue.

Kirkland, Ellis, Hodson, Chaffetz & Masters, Winston, Strawn, Smith & Patterson, Arvey, Hodes & Mantynband, and Nicholas J. Constantine, Chicago (Thomas M. Thomas and Thomas F. Dean, Chicago, of counsel), for certain appellants.

John E. W. Timm and Arthur F. Siebel, and Kenart M. Rahn and Philip J. Simon, Chicago, for appellees.

HOUSE, Justice.

This is an appeal from a decree of the circuit court of Cook County finding certain provisions of two tax statutes to be unconstitutional and enjoining their enforcement.

Prior to 1963, neither the Illinois Retailers' Occupation Tax Act nor the Illinois Use Tax Act explicitly applied to transactions where trading stamps were redeemed for items of personal property. (See: Ill.Rev.Stat.1961, chap. 120, pars. 440--453, and pars 439.1--439.22) In 1963, however, section 1 (par. 440) of the Retailers' Occupation Tax Act was amended by the addition of the following provisions: 'Persons who engage in the business of transferring tangible personal property upon the redemption of trading stamps issued by others shall be deemed to be engaged in the business of selling such property at retail and shall be liable for and shall pay the tax imposed by this Act on the basis of the retail value of the property transferred upon redemption of such stamps.' Companion legislation added comparable language to section 2 (par. 439.2) of the Use Tax Act. Both amendments became effective January 1, 1964.

The corporate plaintiff, which gives trading stamps to its customers joined with the individual plaintiff, Florence Hornof, who had received trading stamps, in the filing of a complaint which challenged the constitutionality of the 1963 amendments and sought to enjoin the collection of the taxes they authorized. Similar actions were filed by other individuals and were consolidated with the original action. The ultimate defendants in the consolidated cause were State revenue officials and various companies engaging in the trading stamp business in Illinois. A temporary injunction was issued directing that all occupation and use taxes collected by the defendant companies were to be held in a protest fund pending the outcome of the litigation.

Before the cause was heard, the two sections were again amended effective July 1, 1965. These amendments reenacted the 1963 amendments, with the exception that the words 'issued by others' were omitted. (Ill.Rev.Stat.1965, chap. 120, pars. 440 and 439.2.) Plaintiffs then amended their pleadings to attack the validity of the 1965 amendments and also bolstered their constitutional attack on the 1963 amendments. A second temporary injunction was issued to impound in a separate protest fund taxes collected under authority of the 1965 amendments.

It was stipulated that all the defendant trading stamp companies conduct their business in substantially the same manner. Each company contracts with its respective licensee merchants to furnish trading stamps and books to them for a fee measured by the amount of stamps ordered and agrees to redeem the stamps at its redemption store when presented. The merchants, in turn, deliver trading stamps to their customers in conjunction with the sale of personal property, generally at the rate of one stamp for each ten-cent purchase. No separate charge is made for the stamps, and no reduction in the selling price of the merchandise is made if the trading stamps are declined. Each stamp company publishes a catalogues showing the articles which may be acquired upon surrendering a stated number of stamps. The customer may receive the article of his choice upon delivering the required number of stamps and paying the appropriate amount of tax. Regardless of who has possession of the stamps, by the terms of the licensing agreements, the title thereto at all times remains with the trading stamp companies.

Plaintiffs insist that the 1963 amendments effected an arbitrary and discriminatory classification when, by use of the words 'issued by others,' persons who both issued and redeemed their own stamps were excluded from the operation of the amendments. They argue that the 1965 amendments constitute a legislative recognition of a defect in the 1963 amendments. While defendants have advanced an argument that there was a reasonable basis for the classification effected by the 1963 amendments, based on real and substantial differences between the classes created, there is no need to decide that issue. It is elementary that this court will not determine the constitutionality of a provision of an act where the party urging the invalidity is in no way aggrieved by the operation of such provision. (Schreiber v. County Board of School Trustees, 31 Ill.2d 121, 198 N.E.2d 848; Klein v. Department of Registration and Education, 412 Ill. 75, 105 N.E.2d 758; Liberty National Bank of Chicago v. Collins, 388 Ill. 549, 58 N.E.2d 610.) There is no showing here that plaintiffs were aggrieved or sustained injury by reason of the classification about which complaint is made. Moreover, it is only where portions of a statute are so connected with each other that the court cannot say the General Assembly would have passed the act with the invalid portion eliminated, that an entire act will be held void. (Lee v. Retirement Board, 31 Ill.2d 252, 201 N.E.2d 361; Grennan v. Sheldon, 401 Ill. 351, 82 N.E.2d 162.) Since the legislature in this instance amended the 1963 enactments merely by deleting the words 'issued by others,' it must be presumed that it did not regard the deleted words so vital that the 1963 amendments would not have been enacted without them. Thus, even if we were to hold that the words 'issued by others' created an arbitrary classification, this would not affect the remainder but would merely make all stamp redemption transactions taxable. Beatrice Foods v. Lyons, 12 Ill.2d 274, 146 N.E.2d 68; People ex rel. Holland Coal Co. v. Isaacs, 22 Ill.2d 477, 176 N.E.2d 889; City of Elmhurst v. Buettgen, 394 Ill. 248, 68 N.E.2d 278.

The first of the contentions directed to the invalidity of both the 1963 and 1965 amendments is that the measure of the occupation tax on the redemption of trading stamps is made the 'retail value' of the property transferred, whereas the measure in all other transactions embraced by the act is 'gross receipts' from sales of personal property. This, according to plaintiffs, creates a dual standard and violates the uniformity requirements of section 1 of article IX of the Illinois constitution, S.H.A. and renders the amendments void.

We see no lack of uniformity here despite the difference in terminology used to describe the tax base, particularly when section 1 of the Retailers' Occupation Tax Act is considered in its entirety. The term 'Gross receipts' is defined as the 'total selling price or the amount of such sales,' I.e. sales of tangible personal property, while the phrase 'Selling price or amount of sale' is defined as meaning 'the consideration for a sale valued in money whether received in money or otherwise.' (Ill.Rev.Stats.1963 and...