delivered the opinion of the court:
This is аn appeal from a decree of the circuit court of Cook County entered in a proceeding under the Administrative Review Act reversing an administrative decision of the Department of Revenue which had denied plaintiff’s claims for credit and refund under the Retailers’ Ocсupation Tax Act. We have jurisdiction on direct appeal since the trial court expressly held unconstitutional a certain 1961 amendment to the Retailers’ Occupation Tax Act, and since the public revenue is involved. Ill. Rev. Stat. 1961, chap, no, par. 75.
. In 1961, the General Assembly аmended the Retailers’ Occupation Tax Act to expand the definition of “sale at retail” to include any transfer of “possession of, or the right to the possession of” tangible personal propert). (H.B. No. 1136, 72nd General Assembly; Ill. Rev. Stat. 1961, chap. 120, par. 440, p. 1630.) The Use Tax Act was similаrly amended. (H.B. No. 1135, 72nd General Assembly; Ill. Rev. Stat. 1961, chap. 120, par. 439.2, p.‘ 1608.) The apparent purpose of this amendatory legislation was to make a lease of personal property the equivalent of a sale insofar as the incidence of the two taxes is concеrned.
International Business Machines Corporation, hereinafter sometimes referred to as IBM, is engaged in the business of manufacturing, selling, servicing and leasing business machines, and, except for manufacturing, carries on all of these activities in Illinois. IBM paid the Department of Revenue, under protest, for the months of September and October, 1961, the sum of $20,000 on account of Illinois retailers’ occupation, use, and municipal retailers’ occupation taxes on its machine rental transactions in Illinois, and secured- a temporary injunction prevеnting such moneys from being paid into the State treasury. The Service Bureau Corporation, a machine rental customer of IBM, intervened as a plaintiff in the injunction suit.
IBM then filed claims for credit on account of such taxes with the Department of Revenue and duly protested the Dеpartment’s tentative denial of such claims. A hearing was then had on such claims by the Department of Revenue, after which the Department made a final administrative decision disallowing all such claims in their entirety. Plaintiff then brought this proceeding under the Administrative Review Act to review thе final administrative decision of the Department.
The transactions involved in the claims are rental receipts derived on and after September 1, 1961, from lease and rental transactions with IBM customers. It is undisputed that all the transactions involved are bona fide leases. The Dеpartment denied the claims in their entirety.
In reversing the decision of the Department of Revenue the trial court held, among other things, that the amendment to the Retailers’ Occupation Tax Act is unconstitutional in that it embraces a subject not expressed in its title in violation of sеction 13 of article IV of the constitution of Illinois, and also involves an improper classification in violation of section 1 of article IX of the constitution of Illinois, and the due-process clauses of the State and Federal constitutions, and that the use tax is inapplicable to the lease transactions. The trial court also found that the claims for credit were presented by and on behalf of the persons who actually bore the burden of the taxes, and that no unjust enrichment would result from allowing the claims.
The principal question presеnted by this appeal is whether or not the amendment to the Retailers’ Occupation Tax Act by House Bill No. 1136 of the 72nd General Assembly violates section 13 of article IV of the constitution of 1870 by embracing a subject not included within its title. The title of the Retailers’ Occupation Tax Act, which was not amended by House Bill No:’ 1136, is “An Act in relation to a tax upon persons engaged in the business of selling tangible personal property to purchasers for use or consumption.”
The pertinent constitutional provision is as follows : “No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed; * * Const, of 1870, art. IV, sec. 13.
House Bill No. 1136 made several changes in the definitions section of the act, apparently designed to include rental transactions as sales. (Ill. Rev. Stat. 1961, chap. 120, par. 440.) The definition of “sale at retail” was expanded (the italics indicating new matter added by the amendment) as follows: “ ‘Sale at retail’ means any transfer (conditional or otherwise) of the ownership of, or title to, or possession of, or the right to possession of, tangible personal property to a purchaser, for use or consumption and not for resale in any form as tangible personal property, for a valuable consideration.”
The definition of “purchaser” was expanded to include “any one who, through a sale at retail, acquires the ownership of, or title to, or possession of, or the right to the possession of, tangible personal property for a valuable consideration.”
Finally, the definition of “selling price” was amended by a proviso to the effect that that term may, at the election of a lessor, mean the retail selling price “which the lessee-purchaser would normally have been required to pay fоr the property at that time if the lessee-purchaser had bought the property in the ordinary sense of a purchase instead of leasing it.”
It has been observed that objections to the validity of legislation based upon constitutional requirements as to titles are often made but seldom sustained. This does not mean, however, that the constitutional provision is without effect nor that it will not be applied in the proper case. Indeed this court has in the past not hesitated to strike down as unconstitutional legislative enactments or parts thereof whiсh have run afoul of the constitutional provision. (Johnson v. Daley,
We believe that the appropriate considerations governing the disposition of this case are illustrated by a hypothetical example set forth in the opinion in Rouse v. Thompson,
Defendant argues that the legislature may and frequently does use words in a statute in other than their usual sense. This is undeniably true, but that is not the point. The question here is not the pоwer of the legislature to define terms for the purpose of a statute, but whether the content of the act goes beyond the subject expressed in its title. A somewhat ludicrous example may serve to illustrate the distinction. One of the horrible examples of legislative definitions is the English statute which is said to have provided: “Whenever the word ‘cows’ occurs in this Act it shall be construed to include horses, mules, asses, sheep and goats.” (Cited in Cooper, Effective Legal Writing, 3; see Dickerson, Legislative Drafting, 90.) Such a technique might well be constitutionally permissible if the title оf the act were “An Act relating to domestic animals,” but it is unquestionably bad under a title referring only to cows.
In our opinion a title referring only to a tax upon “persons engaged in the business of selling tangible personal property to purchasers for use or consumption” is not, without аmendment, sufficiently broad to include provisions extending the tax to persons engaged in leasing personal property in bona fide rental transactions. We hold, therefore, that the amendatory act, to the extent that it purports to embrace such leases within the terms of the Retailers’ Occupation Tax Act, is in violation of section 13 of article IV of the constitution of 1870 and is void.
Since the title of the Use Tax Act is “An Act in relation to a tax upon the privilege of using tangible personal property in this State,” the companion amendment to that act by House Bill No. 1135 is not subject to the same constitutional objection. The use tax is, however, complementary to the retailers’ occupation tax, and the Use Tax Act provides: “If the seller of tangible personal property for use would not be taxable under the Retailers’ Occupation Tax Act despite all elements of the sale occurring in Illinois, then the tax imposed by this Act shall not apply to the use of such tangible personal property in this State.” (Ill. Rev. Stat. 1961, chap. 120, par. 439.3.) Since, because of the invalidity of the amendment tо the Retailers’ Occupation Tax Act, IBM is not subject to retailers’ occupation tax with respect to its lease transactions, it follows that its lessees are not subject to use tax. The trial court was correct in reversing the decision of the Department of Revenuе and in allowing the claim for credit in its entirety.
Although the foregoing considerations dispose of the case, it should be noted, in the interest of preventing possible misunderstanding in the future, that there is still another ground for holding that the use tax is not applicable to the use by a bona fide lessee. The tax is imposed “upon the privilege of using in this State tangible personal property purchased at retail * * *.” (Ill. Rev. Stat. 1961, chap. 120, par. 439.3.) “Use” is defined (with certain exceptions not here pertinent) as “the exercise by any person of any right or power over tangible personal property incident to the ownership of that property.” (Ill. Rev. Stat. 1961, chap. 120, par. 439.2.) This definition was not changed by the 1961 legislation. Even though the 1961 legislation attempted to obliterate the distinction between a sale and a lease and a lessee and a рurchaser, it did not eliminate the distinction between ownership and possession. Indeed, the inclusion of both terms in the amended definitions of “purchase at retail,” “purchaser,” and “sale at retail” involves a recognition that “ownership” and “possession” are not synonymous. A merе lessee does not exercise over the property any rights or powers incident to the ownership of the property. Thus, in the absence of a change in the statutory definition of “use,” the lessee does not use the property in the statutory sense and is not subject to use tax.
The decree of the circuit court of Cook County is afín med.
Decree affirmed.