delivered the opinion of the court:
This appeal is taken from an order entered by the circuit court of Cook County affirming the action of the Department of Revenue of the State of Illinois (Department) which adopted the recommendations of its hearing examiner as to assessments made against the taxpayer-plaintiff, Burlington Northern, Inc., for its having failed to pay a use tax in Illinois on certain equipment owned and used by the plaintiff as an interstate carrier for hire. The assessments are based on an audit made by the Department of the taxpayer’s records for November 1, 1964, to June 30, 1967. Of the several categories of equipment which were the subject of this audit, only three are presented for review by this court: 34 double-deck passenger cars (hereаfter commuter cars), four diesel switching engines (hereafter locomotives) and certain containers and trailers used by the plaintiff and others in connection with trailer-on-flatcar (TOFC) and container-on-flat-car (COFC) services. Since taxation óf each of these categories creates and presents different legal issues for the court, each will be discussed separately in this opinion.
The following issues are raised by this appeal:
(1) whether the proposed tax causes a multiple burden on interstate commerce;
(2) whether the plaintiffs contested transportation vehicles are exempt from the Illinois Use Tax Act under the statutory rolling stock exemption; and
(3) are the findings of fact that there was a taxable use of the contested property within Illinois аgainst the manifest weight of the evidence.
The final use tax assessments exclusive of penalties and interest are:
Period Tax Delinquency
11/1/64 thru 6/30/65 $147,619.12
7/1/65 thru 12/31/65 225,048.06
1/1/66 thru 6/30/67 ' 124,863.37
Total $497,530.55
The tax assessments for the equipment at issue on this appeal as recommended by the hearing examiner are as follows:
Commuter Cars $277,370.09
Containers and Trailers 32,468.93
Switch Locomotives 17,898.72
Total $327,737.74
The only indication in the record that the Department approved the recommendations of the hearing examiner was the final tax assessments. Though the amounts finally assessed differed somewhat from the amounts recommended to be assessed, it is assumed that the Department accepted tire examiner’s reasoning in so approving the recommendations.
Commuter Cars
In 1965, plaintiff purchased 34 passenger cars (also referred to in the record as double-deck, gallery and commuter сars) from a company in Pennsylvania, taking delivery at Lincoln, Nebraska. After delivery in Nebraska, all the cars were transferred on the same day to Chicago. The cars, were, as plaintiff alleges, involved in interstate commerce from the time they entered Illinois through the audit period, though the extent of involvement is disputed. Thé hearing examiner made S finding of fact that the cars were not includible under the rolling stock exemption to the Illinois Use Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 439.3(b)), 1 in that the original intent and primary purpose of purchasing the cars was to move them in commerce within Illinois. No reference is made, in applying this standard, to actual, much less primary, use. The standard, though not found in either the statute or the Department’s own rule 3 2 interprеting that statute, was deemed by the examiner to be necessary to avoid what he characterized as an impossible task of weighing “endless” variables to determine whether the interstate purpose of instrumentalities mainly purchased for intrastate use is significant enough to merit exemption.
The examiner made an additional finding that the commuter cars could not be characterized as rolling stock within the meaning of the exemption, a finding not only wholly unsupported by the record but also directly in conflict with the examiner’s own comment at the hearing that the commuter cars were rolling stock.
The plaintiff presented evidence of substantial interstate use and involvement of these cars. Specifically there was evidence that the commuter cars themselves moved across State fines with paying passengers aboard on a number of occasions, and, that while on the Chicago to Aurora runs within Illinois on which these cars were mainly used, they carried both passengers who either originated or culminated their journeys in other States, and mail and express packages which, stored just inside the doors of the cars, were delivered along the route. Revenues from transporting express packages over the three years included in tlie audit were totaled at $24,682 and mail revenues at $98,845. In spite of the evidence of the extent and nature of interstate use and involvement of these cars, plaintiff alleged that there is no practicable manner of determining the total amount of revenue each car produces, much less that produced in interstate use and involvement, and this court can find no basis in the record to dispute that allegation.
Locomotives
The diesel switching engines were purchased in Illinois, delivered in Iowa, and initially used for a year in Nebraska for switching and, allegedly, interstate uses. The auditor concluded that the engines were then “permanently assigned” to Illinois — a conclusion not apparently concurred in by the examiner. This conclusion was based solely on a letter obtained from the files of the plaintiff stating that they had been "assigned” to Illinois. At the hearing plaintiff alleged that such terminology may have been used simply for Federal inspection purposes. The locomotives, though defined by C. J. Bryan, manager of operations for the pláintiff, as “any motive power that would be used to switch, [and] classify box cars, flat cars, any type of rolling stock, and assembly into a train,” were also capable of and were, in fact, used on an unspecified number of occasions for interstate travel. No sales or use taxes were paid on these locomotives in any State. The examiner found these locomotives not to be within the rolling stock exemption since they were not “for hire” as, he believed, was required by the statute and were instead, he felt, used “solely for the benefit of the Taxpayer,” whereas the trial court found them not to be exempt because the statute, he believed, required actual physical movement of the equipment across State lines.
Containers and Trailers
The equipment classified as “trailers” was purchased in 1965 from Burlington Truck Lines which, though a wholly-owned subsidiary of the plaintiff, allegedly maintained complete independence from it. A “trailer” is the back or cartage portion of a track to which “bogies” have been attached. A “bogie” was defined at the hearing by R. V. Jabens, manager of transportation for the plaintiff, as “two pair of tandem wheels in a framework, with air brakes and hose attachments for hooking to the brake system of a tractor [or cab], to attach a container for movement over the streets and highways.” The trailers were used throughout the United States by plaintiff and other interstate carriers as part of their trailer-on-flat-car (TOFC) service.
The equipment classified as “containers” was purchased in Alabama and delivered, along with some chassis, in Kentucky. Containers are essentially trailers without wheels. Once wheels are affixed, by means of attaching a chassis, a container is substantially similar to a trailer “with rear doors, and, in some cases a side door.” When a container with chassis attached is connected to a cab or tractor it becomes a truck capable of travel upon the highways. The containers were purchased and have been utilized for the specific purpose of transporting pineapple products from the State of Hawaii to many points in the continental United States. In transit, on plaintiffs and other carrier’s rails, the containers have been chained to the flat cars.
The trailers and containers were clearly not “permanently affixed” to the flat cars as such action would wholly destroy the purpose behind TOFC and COFC services, namely, to provide rail-truck service to parties who cannot be reached by rail alone or for whom the cost of using a box car is impractical or unprofitable. Though the containers and trailers were not “permanently affixed,” as required by the Department’s regulations of certain property specifically includible under the exemption, they were not so includible. The trial court held that only cars and vehicles in actual operation were exempt as rolling stock, and that containers and trailers loaded on flat cars were therefore not exempt.
I.
The plaintiff, dissatisfied with the audit, requested a departmental hearing. Thereafter the hearing examiner issued a report with recommendations. The Department issued its final assessments based on, so far as we can assume from the record, the recommendations of the hearing examiner. The plaintiff, dissatisfied with the final assessments, petitioned for review under the Administrative Review Act 3 to the circuit court of Cook County. The trial court found, as to the items involved in this appeal, “that the findings and judgments of the Department of Revenue * * * are not against the manifest weight of the evidence, are suppоrted by the evidence * * * are correct and should be affirmed.” Judgment was thereupon entered in the amount of $459,070.41 plus interest and penalty in the amount of $312,816.65. As we hereafter explain, we find the said judgment is erroneous and must be reversed for the various reasons hereinafter discussed.
II.
The threshold question — affecting each of the three categories involved in this appeal — is whether the presence or absence of a multiple burden on interstate commerce through State taxation is relevant to this inquiry.
The Illinois Use Tax Act
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provides that “[a] tax is imposed upon the privilege of using in the State tangible personal property purchased at retail from a retailer.” (Ill. Rev. Stat. 1971, ch. 120, par. 439.3.) This Act was passed to complement and prevent еvasion of the Retailers’ Occupation Tax Act. (Ill. Rev. Stat. 1971, ch. 120, par. 440 et seq.; Boye Needle Co. v. Department of Revenue (1970),
Plaintiff contends that it was entitled to an exemption as an interstate carrier for hire moving rolling stock in interstate commerce on all equipment in issue regardless of whether a multiple burden exists or not.
The Department argues that, since no sales or use tax has been paid on any of the equipment in issue and since credits would have been allowed if any hаd (Ill. Rev. Stat. 1971, ch. 120, par. 439.3(c)), there is no possibility of a multiple burden on interstate commerce and thus no reason for the exemption.
The authorities relied upon by the Department concerning multiple burdens and their effect on State taxation, are inapplicable to the present case in that they all involve either ad valorem property taxes (Braniff Airways, Inc. v. Nebraska State Board of Equalization and Assessment (1954),
As to the applicability of ad valorem taxes to use tax cases, plaintiff notes in its brief, and we agree, that “all of taxpayer’s rolling stock is assessed on a [non-discriminatory] basis under the Illinois ad valorem property tax. The distinction is that there is no rolling stock exemption in the Illinois Property Tax Act and it is assessed on an allocated nondiscriminatory basis.” Ill. Rev. Stat. 1971, ch. 120, par. 563(9); People ex rel. Seip v. Chicago & Western Indiana R.R. Co. (1886),
In Western Live Stock v. Bureau of Revenue (1938), 303 U.S, 250,
The Department attempts to justify taxation of property used in interstate commerce where no sales or use tax has been paid by arguing the impossibility of multiple taxation due to the credit provisions of the Use Tax Act. (Ill. Rev. Stat. 1971, ch. 120, par. 439.3(c).)
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As to the use tax, however, it is to be noted that separate exemptions are made fbr the rolling stock of interstate carriers for hire (subsection (b)) and property brought into Illinois upon which a use tax has been paid (subsection (c)). No reason has been found to believe that the legislature intended the one exemption to be contingent upon the other. Thus, the Illinois legislature apparently intended to exempt rolling stock moving in interstate commerce from being subject to the use tax regardless of the potentiality of multiple taxation. Likewise, nothing in the revenue statutes prohibits a taxpayer from legally minimizing his, her or its taxes. While it is true that grants of tax exemption are to be given a strict interpretation against the taxpayer and in favor of the taxing power (Bingler v. Johnson (1969),
III.
We next consider the issue of whether the Department erred as a matter of law in concluding that an original intent and primary purpose standard was applicable in determining whether the rolling stock exemption applied to plaintiff’s equipment in issue on this appeal. The resolution of this question directly applies to the question of whether the 34 commuter cars are subjeсt to the use tax. The Department argues for the use of this standard by contending that the intent of the legislature in enacting the rolling stock exemption was merely to prevent the use tax from applying to interstate commerce in transit through the State.
We have not been referred to, nor do we find, Illinois cases discussing the legislative intent in enacting the rolling stock exemption. A search of the applicable House and Senate Journals is equally fruitless, save for a House amendment which was not included in the final bill, limiting subsection (b) to use by persons “engaged in interstate transportation in the actual conduct of such transportation.” (Journal of the Senate of the Sixty-Ninth General Assembly of Illinois 1678 (1955).) In the absence of such legislative history, one must turn to the general principles of statutory construction. As already noted, grants of tax exemption are strictly interpreted against the taxpayer and in favor of the taxing power (Bingler v. Johnson; City of Lawrenceville v. Maxwell), and the burden is upon the one claiming the exemption to clearly show that the property is within the exemption. City of Lawrenceville v. Maxwell (1955),
As plaintiff points out, however, an interpretation placed upon a statute by an administrative official cannot alter its plain language. In the case plaintiff cites in support of this proposition, Morrill v. Jones (1883),
In the present case, both the statute and the regulation interpreting it grant an exemption to interstate carriers for hire as to property used as rolling stock moving in interstate commerce without reference to dual, primary, or predominant uses or purposes. Contrary to the parties’ assertions on oral argument, a search of the use tax statutes of the various jurisdictions uncovered nо roUing stock exemptions which have been adopted with any kind of primary purpose or use standard, whether at the time of purchase or thereafter, although some limit their exemptions to “bona fide interstate commerce.” La. Rev. Stat. Ann. § 47.305(5) (1970); Tenn. Code Ann. §67 — 3007 (1955).
We can find no basis in the record for the Department’s limitation of this exemption other than the aUeged difficulty the Department would encounter in having to take into account such “endless variables” as the mileage an instrumentality travels, the number of days it is used in interstate commerce, and the purposes for which an instrumentality is used. Tire standard which the Department would interpose — the original intent and primary purpose of the carrier at the time of purchase — would exсlude from the coverage of tire exemption not only instrumentalities substantially but not primarily used in interstate commerce, but also those primarily used in interstate commerce where such was not the original intent and initial primary purpose. No doubt exists that such results would unduly burden interstate commerce. More relevant to the present inquiry, such a standard, regardless of results, is not at all justified by reference to either the statute or the regulation.
It is clear from the evidence presented at the hearing that the interstate use and involvement of the passenger cars here in issue was as intertwined with intrastate use as were the uses of the telephones in Cooney v. Mountain States Telephone & Telegraph Company (1935),
While the actual physical interstate journeys by the passenger cars in the present case appear from reviewing the record to be on each . occasion separate incidents, and thus do not appear to be intertwined with plaintiff’s interstate business, the other factors making up its interstate business — the intrastate passengers and the mail and express packages — are sо intertwined. Contrary to tire finding of the Department, where passengers or goods traveling from one State to another are transported as part of that interstate journey by an agency which carries them solely within one State, the intrastate portion of the journey becomes interstate. (United States v. Yellow Cab Co. (1947),
IV.
The next issue before the court is whether the court below erred in affirming the Department in its denying the plaintiff’s switching engines inclusion within the rolling stock exemption. The examiner had recommended such denial on the ground that they "were not at any time for hire, [and] were used solely for the benefit of the Taxpayer,” basing his recommendation on the Department’s rule 3. However, in both rule 3 and, more importantly, the statute, the words “for hire” follow the words “interstate carrier” rather than the words “rolling stock moving in interstate commerce.” (Ill. Rev. Stat. 1971, ch. 120, par. 439.3(b); Illinois Use Tax Rule No. 3.) Since words in tax measures are to be given their common and ordinary meaning (Old Colony R.R. Co. v. Commissioner of Internal Revenue (1932),
Defendant infers that plaintiff was evading Illinois taxes in its initial purchase of the engines in Illinois, delivery in Nebraska, use for a year in Nebraska, and subsequent transfer back to Illinois. It is difficult to understand how these circumstances could be evasive when, under section 3 of the Use Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 439.3), property “acquired outside this State” is defined in the context of the exemptions to the use tax to include property purchased in Illinois and delivered outside Illinois. No provision prohibits a transfer of the property back to Illinois. There is nothing in this record that establishes evasion, and thus defendant’s citation to Turner v. Wright (1957),
The plaintiff is quite correct in asserting that the Supreme Court distinguished the Southern Pacific case from the situation presented by the case now before the court in its subsequent decision, Joseph v. Carter & Weekes Stevedoring Co. (1940),
In United Air Lines, Inc. v. Mahin (1973),
The issue presented in this regard is whether switching operations, physically conducted wholly within one State, can be considered to be “moving within interstate commerce” when the cars and engines switched are moving in interstate commerce. The circuit court was of the opinion that they could not. The cases, however, suggest the opposite conclusion. This court held, in LaRue v. Indiana Harbor Belt R.R. Co. (1st Dist. 1937),
The United States Supreme Court apparently views switching operations as part of interstate commerce as well. In determining whether a train terminal company, which hired out its services to several interstate carriers and owned and operated no cars or engines itself other than switching engines, engaged in interstate commerce such that its employees were protected by Federal legislation, the Court held, in United States v. Broоklyn Eastern District Terminal (1919),
The present case involves an interstate carrier for hire rather than a local business conducting terminal switching activities and thus this equipment was clearly being used in interstate commerce. This is true without taking into account the actual physical interstate movements which the switching engines were also allegedly engaged in. In our opinion the examiner erred in his interpretations of the rоlling stock exemption in regards to the engines, and the circuit court erred in not ruling the examiner’s findings to be against the manifest weight of the evidence.
V.
The final issue before this court is whether the examiner and the circuit court erred in denying pláintiff’s containers and trailers inclusion within the rolling stock exemption. The plaintiff contends that the containers ¿rid trailers are instrumentalities of interstate commerce and as such are part of the rolling stock of a railroad, while the Department contends that they are not includible since they are “not permanently affixed” to cars or locomotives.
Once again the court is confronted with a lack of legislative intent in trying to determine whether these containers and trailers fit within the legislature’s conception of “rolling stock.” Judicial interpretation has been scarce, but a leading definition was provided by the Illinois Supreme Court in 1880. Defining the various classes of railroad property for purposes of taxation under the then existing Revenue Act, the court, in Ohio & Mississippi R.R. Co. v. Weber (1880),
«#. # * the movable property belonging to the corporation * * * [which is] such property as in its ordinary use is taken from one part of the fine to another, such as cars, locomotives and their attachments and usual accompaniments.” (Emphasis in original.)
We have not located any further definition in lEinois of “attachments and usual accompaniments.” In one of the few interpretations of the. Weber definition, the Montana Supreme Court held cooking utensils used by a railroad aboard a boarding oar to be “a necessary and usual accompaniment” and part of the rolling stock of a railroad. Great Northern Ry. Co. v. Flathead County (1921),
A search of the use tax statutes of the various jurisdictions sheds little light on the meaning of “rolling stock.” Only one jurisdiction specifically speaks of trailers and containers and it includes them in their definition of rolling stock. (N.M. Stat. Ann. §72 — 16A—12.18 (1973 Supp).) Fifteen jurisdictions other than Illinois have rolling stock exemptions to their use tax statutes. Ariz. Rev. Stat. §42 — 1409(B) (7) (West Supp. 1974-1975); Ark. Stat. § 84 — 3105.1(A) (1973 Supp.); Iowa Code Ann. § 423.4(6) (1975-1976 Supp.); Ky. Rev. Stat. § 139.480(1) (1974 Supp.); Minn. Stat. Ann. § 297A.25(I) (1972); Miss. Code. Ann.: §27 — 67—7(i) (1972); Mo. Ann. Stat. § 144.030, subd. 3(10) (Vernon 1975 Supp.); Neb. Rev. Stat. § 77 — 2704(3) (a) (1971); N.M. Stat. Ann. § 72 — 16A—12.18 (1973 Supp.); N.D. Cent. Code Ann. §57 — 40.2—04(5) (1972); Okla. Stat. Ann, tit. 68, § 1404(g) (1966); Code of Laws of S.C. §§ 65 — 1404 (20), 65 — 1422(2) (1962 & 1973 Supp.); S.D. Compiled Laws Ann. §§ 10 — 28—1,10—46—7,10—46—10 (1967 & 1974 Supp.); Tex. Civ. Stat. -Taxation-General tit. 122A, art. 20.04(8) (Vernon 1969); Wash. Rev. Code Ann. § 82.12.030(4) (1974 Supр.).
The Illinois legislature has used the term (in addition to its use in the Retailers’ Occupation Tax Act as already mentioned) in another context — in its adoption of the Uniform Commercial Code. In UCC § 9 — 103 (3)(a) (Ill. Rev. Stat. 1971, ch. 26, sec. 9 — 103(3)(a)) “rolling stock” is included as an example of “goods which are mobile and which are of a type normally used in more than one jurisdiction.” No light is provided as to what tire Illinois legislature or the framers of the Code would have included in rolling stock by reference to the Code comments.
The Department upheld the auditors’ denial of the exemption because the trailers and containers are not permanently affixed. This view fails to take into account the modem realities of railroading. The economic, teсhnological and commercial changes which necessitate involvement in TOFC and COFC services were probably not contemplated by the legislature in 1955 when the statute was first passed. The evidence established that the trailers and containers here in issue were used exclusively in interstate commerce throughout the United States.
Trailers and containers would no doubt today be considered to be included within those essential instrumentalities of transportation which the legislature contemplated as desirable to save from taxation under the category of rolling stock. Essentially, it is within the province of the legislature to determine the status of trailers and containers in relation to the rolling stock exemption. In the absence оf legislative intent, this court looks for guidance to the statute and its interpretation by the Department of Revenue.
Rule 3(b) contains the following language: “* * * ‘rolling stock’ includes the transportation vehicles of any kind of interstate transportation company * ” * railroad rolling stock’ includes all railroad cars * * * and includes all property temporarily stored for the purpose of being permanently attached to such cars * * * as an integral part thereof; * 6 ”, (Emphasis supplied.) In our opinion this language is broad enough to include the containers or trailers. In our opinion the trailers and containers are within the contemplation of the rolling stock exemption. The trial court below was quite correct in emphasizing the nеed for legislative guidance in this matter. In that the legislature has not so acted, this court finds the trailers and containers — essential to the conduct of modem railroading and used exclusively in interstate commerce — to be includible within the rolling stock exemption to the Illinois Use Tax Act.
VI.
In summary then it is the holding of this court that tax assessments for the periods January 1, 1964, through June 30, 1967, on the 34 commuter cars and accessories, containers and trailers and diesel switch engines were in error. Therefore, as to those items the judgment of the circuit court of Cook County is reversed and remanded for proceedings not inconsistent with these findings. Such proceedings will require a determination of the proportion of the final assessment affected by this holding and a recomputing of the tax assessments, interest and penalties in accordance with the views expressed herein. In aH other respects the judgment is affirmed.
Reversed and remanded in part; affirmed in part.
STAMOS and LEIGHTON, JJ., concur.
Notes
Section 3(b) of the Use Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 439.3(b)), so far as pertinent, provides:
“To prevent actual or likely multistate taxation, the tax herein imposed does not apply to the use of tangible personal property in this State under the following circumstances:
e o e
(b) the use, in this State, of tangible personal property by an interstate carrier for hire as rolling stock moving in interstate commerce or by lessors under a lease of one year or longer executed or in effect at the time of purchase of tangible personal property to interstate carriers for-hire for use as rolling stock moving in interstate commerce as long as so used by such interstate carriers for-hire;”
Illinois Use Tax Rule No. 3, so far as pertinent, provides:
“EXEMPTIONS TO AVOID MULTISTATE TAXATION
To prevent actual or likely multistate taxation, the tax shall not apply to the use of tangible personal property in this State under the following circumstances:
(b) the use, in this State, of tangible personal property by an interstate carrier for hire as rolling stock moving in interstate commerce; ® ° ‘rolling stock’ includes the transportation vehicles of any kind of interstate transportation company (railroad, bus line, air line, trucking company, etc.), but not vehicles which are being used by a person to transport property which he owns or which he is selling and delivering to his customers; railroad ‘rolling stock’ inсludes all railroad cars, passenger and freight, and locomotives or mobile power units of every nature for moving such cars, operating on railroad tracks, and includes all property temporarily .stored for the purpose of being permanently attached to such cars or locomotives as an integral part thereof; * *
See Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq., for the Administrative Review Act
Ill. Rev. Stat. 1971, ch. 120, pars. 439.1 to 439.22.
Section 3(c) (par. 439.3(c)) provides that the use tax shall not be levied where:
"(c) the use, in this State, of tangible personal property which is acquired outside this State and caused to be brought into this State by a person who has already paid a tax in another State in respect to the sale, purchase or use of such property, to the extent of the amount of such tax so paid in such other State;”