An opinion of twenty-six pages was written by me and presented to the court for consideration in vacation on May 9, 1933, which will be herein referred to as the first opinion. Every question presented to the court for decision by the parties to the suit was passed on in that opinion and I voted for its adoption. Five members of this court caused to be prepared an opinion in two parts, containing altogether about seven pages, which might properly be called a per curiam decision on two questions submitted for decision. They arrived at the same conclusion that we did, that the entire act was void by reason of certain provisions that we decided rendered it void, and by reason of two other provisions of the act that we regarded as valid but which they regarded as invalid. They concurred in the remainder of the first opinion, and the opinion written by them and the part of the first opinion concurred in by them were consolidated *Page 479 and handed down as the per curiam decision above set forth. About six pages of the first opinion were stricken out of it entirely and no reference to those deleted portions is made in the per curiam decision aforesaid. Those deleted portions of our opinion set forth our discussion of the two provisions which we held to be valid. We still respectfully contend that the first opinion as presented to the conference held correctly on all questions for decision and should have been adopted by the court. We disagreed with the per curiam decision of the court to the effect that the two provisions of section 1 of the act in question were invalid. We concurred in no part of those two holdings of the court and specifically announced that we would file a dissenting opinion as to them. We also strenuously objected to the deletion of that portion of our original opinion which contained our discussion of those two questions and which will be reproduced in this dissent as our principal ground for our contention that the court erred in its holdings aforesaid. The first part of the per curiam opinion caused to be written by the five members of the court begins with the last paragraph on page 13 of the printed copy of the per curiam opinion and ends with the first eleven lines of page 19 thereof, and the second part thereof is the last seven lines of page 26 and all the next and last pages of the opinion, including the last words on that page, "Decree affirmed."
The deleted portion of our opinion which we offer as an answer or dissent to the holdings of the court on said two propositions are the following, copied from our first opinion, to-wit:
Section 1 of article 9 of the constitution provides that "the General Assembly shall have power to tax peddlers, auctioneers, brokers, hawkers, merchants, commission merchants, showmen, jugglers, inn-keepers, grocery keepers, liquor dealers, toll bridges, ferries, insurance, telegraph and express interests or business, vendors of patents, and persons *Page 480 or corporations owning or using franchises and privileges, in such manner, as it shall from time to time direct by general law, uniform as to the class upon which it operates." Section 2 of the same article provides: "The specification of the objects and subjects of taxation shall not deprive the General Assembly of the power to require other subjects or objects to be taxed, in such manner as may be consistent with the principles of taxation fixed in this constitution."
As we have pointed out, the tax imposed by this act is a tax on persons engaged in the business of selling tangible personal property at retail and is in the nature of an occupation tax. The enumeration in section 1 of article 9 of certain occupations and businesses that may be taxed does not have the effect of limiting the General Assembly in imposing taxes on occupations or businesses of those there named, because the provision of section 2 of that article expressly forbids a construction that would so limit the power of the General Assembly. Price v. People, 193 Ill. 114; Bessette v. People, id. 334; Bachrach v. Nelson, 349 id. 579.
Under sections 1 and 2 of article 9 the General Assembly has the power to tax persons engaged in the business of selling tangible personal property at retail, and the only limitation on such power is, that it must be by general law uniform as to the class upon which it operates. The tax imposed in this case is by general law. Is the tax uniform as to the class upon which it operates? Appellee contends that it is not, because by definition the term "tangible personal property," as used in the act, does not mean or include farm products or farm produce sold by the producer thereof or motor fuel as defined in the Motor Fuel Tax law. It is to be noted that farm products and farm produce in general are not excluded from the meaning of the term "tangible personal property," but the exclusion of farm products and farm produce is only when such articles are *Page 481 sold by the producers thereof. It seems clear, therefore, that it was the intention to exclude farmers and persons producing farm products or produce, when selling their own products or produce, from the operation of the act. The effect of such provision is the same as if the act had provided that the producer of farm products and farm produce, when selling such articles produced by himself, should not be considered as engaged in the business of selling tangible personal property at retail. Under the decisions of the courts of this country it is very doubtful if such producer, when selling his own products, would have been considered as engaged in the business of selling tangible personal property at retail had the statute not expressly provided he should not be so regarded. The farmer's business is primarily production, and the sale by him of his products is merely incidental to his business or occupation as producer.
In Davis v. Mayor and Council of Macon, 64 Ga. 128, 37 Am.Rep. 60, the Supreme Court of Georgia had under consideration the validity of an ordinance which provided: "Each person or firm (farmers selling their own produce excepted) retailing fresh or butcher's meat in the city, whether from stalls, stores or by peddling the same on the streets, shall pay a license of $50." The court held that the tax was an occupation tax, and that the exemption of the farmer selling his own product, did not make the ordinance invalid, because "the disposition of meat as the immediate sequel to rearing animals upon a farm is obviously no separate calling from that of farming." The court in that case said: "The ordinance is further attacked as invalid because it has an exception in it exempting from its operation farmers selling their own produce. The exemption would probably have been implied had it not been expressed, for the tax imposed is a business tax — a tax on avocation or calling. The business of a farmer is production — not trade — and the sale directly by himself of what he rears or produces is merely occasional or incidental. * * * The constitutional *Page 482 requirement that 'all taxation shall be uniform upon the same class of subjects' is not infringed by the ordinance in the provision we are considering. The producer whose trade is incident to production, and the middleman whose trade is intermediary between the producer and the consumer, belong not to the same class but to different classes of subjects in a scheme of taxation. At least the difference is wide enough to justify, if not to compel, its recognition in shaping the scheme."
In American Sugar Refining Co. v. Louisiana, 179 U.S. 89,21 Sup. Ct. 43, the Supreme Court of the United States had under consideration a statute of the State of Louisiana imposing a tax on the business of refining sugar and molasses, based on the gross annual receipts of persons and corporations engaged in that business. The statute provided that it should not apply to planters and farmers grinding and refining their own sugar and molasses or to planters who granulate syrup for other planters during the rolling season. It was held that the exemption was valid and that the act did not deny to persons and corporations engaged in a general refining business the equal protection of the laws. The court said: "The act in question does undoubtedly discriminate in favor of a certain class of refiners, but this discrimination, if founded upon a reasonable discrimination in principle, is valid. Of course, if such discrimination were purely arbitrary, oppressive or capricious, and made to depend on differences of color, race, nativity, religious opinions, political affiliations, or other considerations having no possible connection with the duties of citizens as tax-payers, such exemption would be pure favoritism and a denial of the equal protection of the laws to the less favored classes. But from time out of mind it has been the policy of this government not only to classify for purposes of taxation but to exempt producers from the taxation of the methods employed by them to put their products upon the market." *Page 483
The tax imposed by the act we are considering is upon retailers, and the farmer, when selling his produce, is not, strictly speaking, engaging in the business of retailing but is engaged in an incidental part of his business of farming or producing. The exemption, as to him, does not render the act objectionable on the ground that it is not uniform as to the class upon which it operates.
The provision of the act that the term "tangible personal property" does not mean or include motor fuel as defined in the Motor Fuel Tax law, is different from the provision exempting farm products or produce when sold by the producer. Motor fuel generally, by whomsoever sold, is not considered or classed by the act as coming within the meaning of the term "tangible personal property," while, as we have above noted, farm products and farm produce are excluded from the meaning of that term only when such products and produce are sold by the producer. The provision as to motor fuel is, that any person required to make returns and pay a tax under the act need not report the amount collected from sales of motor fuel or pay any tax on such amount. In other words, by whomsoever sold, motor fuel is not considered tangible personal property within the meaning of the act. Is there any reasonable basis for this provision? It is our opinion that there is. By the Motor Fuel Tax law a tax of three cents a gallon on motor fuel is required to be paid by the purchaser thereof for the privilege of operating motor vehicles on the public highways of the State. That tax is paid as an addition to the price of the motor fuel. It is true that that tax is not on the seller of the motor fuel, but it is also true that the exemption in this case is not, as in the case of the farmer, upon the seller but is upon the article sold. It is a matter of common knowledge that while the operator of a gasoline station sells, principally, motor fuel and may be said to be engaged in the business of selling motor fuel, he also sells, ordinarily, lubricating oil, alcohol or other antifreezing *Page 484 solutions, tires, inner tubes, tire patches and other automobile accessories. Because he is engaged principally in the business of selling motor fuel he is not exempt from the tax, and must pay a tax measured on the amount of his sales of tangible personal property other than motor fuel. And likewise a country merchant who in connection with his store maintains a tank and pump from which he sells gasoline to motorists is not required to pay a tax on his receipts from such sales but is required to pay a tax measured by the amount of his sales of other articles. The exemption is not upon any persons in the business of selling tangible personal property at retail but upon sales of motor fuel. It operates uniformly as to all persons in the class on which the tax is imposed. We hold that the fact that there is a tax of three cents a gallon (much larger than the tax in this case) already imposed on motor fuel used on the highways for motor fuel makes a sufficient basis for the exemption in this case. The principle involved was recognized and applied by the Supreme Court of the United States in the recent case of Liggett Co. v. Lee,53 Sup. Ct. 481, where it was contended that the Florida Chain Store act was invalid because it exempted from the tax thereby imposed "filling stations engaged exclusively in the sale of gasoline and other petroleum products." It was held that the fact that by other laws of Florida all dealers in gasoline were required to pay a license tax and a tax of seven cents a gallon for every gallon of gasoline or other like products of petroleum sold, furnished a sufficient basis for the exemption. The act in this case does not provide that retailers may not take into consideration the tax to be paid under the act in fixing the price of the articles and commodities sold. The General Assembly had the right to take into consideration the generally recognized fact that the burden of a tax imposed on persons in business, measured by their receipts from sales, would ultimately be borne, as a practical matter, by the consumer, and to exclude receipts *Page 485 from sales of motor fuel from the receipts on which the tax is based because of the tax already imposed on the consumer of motor fuel. It is our opinion that the tax in this case is uniform as to the class on which it operates, is no violation of section 1 of article 9 of the constitution of Illinois or of the provision of the fourteenth amendment of the constitution of the United States that no State shall deny to any person within its jurisdiction the equal protection of the laws.
In view of some of the contentions made in the portion of the per curiam decision prepared by the five members of the court, to which we will later make direct answer, we desire to supplement or add to our original discussion above set forth in this dissent the following observations: "Tangible personal property," within the meaning of the legislature as used in the title of said act and in sections 1 and 2 thereof, means and includes all personal chattels that can be touched or felt, and which has value, within itself, to every person who produces it, buys or sells it to other persons for use and consumption, except "farm products or farm produce sold by the producer thereof or motor fuel as defined in the Motor Fuel Tax law approved March 25, 1929, as amended," as stated in section 1 of the act. It means and includes personal chattels, such as animals, vegetables, fruits, grains, household stuff, money, jewels, clothing, and everything else included under the term "personal chattels" that can be felt or touched and that can be put in motion and be transferred from one place to another and used for the personal comfort of any person, except those stated in section 1 of the act.
Of the twelve or more different shades of meaning given in Webster's New International Dictionary to the word "business," the only possible definitions therein found that could be with any good reason applied to that word as used in the title and in section 2 of the act in question are the following: "2.a. Constant employment; regular *Page 486 occupation. b. Any occupation or employment habitually engaged in or followed." The entire act in this case discloses that the tax sought to be imposed under it is a tax on occupations. Therefore the tax in question could not be accurately said to be an employment tax, because it is, in fact, a tax on occupations. The word "business," as used in the first sentence of section 2 of the act, should therefore be considered as meaning any occupation habitually engaged in or followed. We have already stated in this dissent that the tax imposed in the act is in the nature of an occupation tax. What we meant by that expression is that, while the tax is really an occupation tax, the tax imposed in the act is not imposed upon the occupations of retailers selling to the consumers as taxes on occupations are usually imposed, but is imposed upon "persons engaged in the business of selling tangible personal property at retail." If a retail merchant, a butcher, a druggist, a farmer, or one selling groceries at retail, were asked to state the occupation in which he was engaged, no one of them would answer that he was "engaged in the business of selling tangible personal property at retail." His answer would indicate that he was a retail merchant, a butcher, a druggist, a farmer or a retail grocer.
We think it clearly appears from the per curiam opinion, beginning with the last paragraph of page 13 in that opinion, that the five members of the court have arrived at erroneous conclusions and have misinterpreted the legislature as to its declarations in sections 1 and 2 of the act, and that those erroneous conclusions are reached by not adhering to the true meaning of the words "business" and "tangible personal property," as used in sections 1 and 2 of the act. On page 13 of the per curiam opinion the legislature is in substance charged with stating in section 1 of the act that farm products are not tangible personal property. On page 14 thereof that statement is followed by the further declaration that the legislature has no power, by legislative *Page 487 enactment, to declare that not to be a fact which everyone knows is a fact. It is further stated on page 14 that the purpose of such provision in this act is clearly to exempt from the application thereof those engaged in the business of selling farm products or farm produce. No one of the above conclusions can be reasonably drawn from any of the language of sections 1 and 2 of the act. The provisions of section 1 are very clearly set forth in this language: "For the purposes of this act: Tangible personal property does not mean or include farm products or farm produce sold by the producer thereof or motor fuel as defined in the Motor Fuel Tax law approved March 25, 1929, as amended." How could the legislative intent be more clearly expressed? Those provisions expressed in section 1 furnish the only ground in the whole act for the charge that the legislature declared that farm products are not tangible personal property and the only ground for their next declaration that it has no power, by legislative enactment, "to declare that not to be a fact which everyone knows is a fact." It should have been clearly understood, we think, that the legislature did not make any such declarations, and if the writer of the opinion had fully considered all the language of section 1 we do not see how he could have so erred in his conclusions aforesaid. It is not correct, as stated in the opinion, that persons engaged in a business of selling farm products or farm produce to the consumer at retail are exempt, under the act, from paying the tax in question. Any retail merchant who sells farm products or farm produce to the consumer and who is not the producer of such farm products or farm produce will have to pay the tax provided for in said act. This is true because he is engaged in an occupation in which he sells such farm products or farm produce to the consumer and is not the producer of such articles. Following these erroneous statements and conclusions in the per curiam opinion, sections 1 and 2 of article 9 of our constitution are quoted in *Page 488 the same words as we quoted them in our original opinion, as above shown in this dissenting opinion. Then follows this statement: "Under this latter section it has been frequently held that the legislature may, by observing the constitutional requirements of uniformity, tax occupations other than those enumerated in section 1," citing a number of decisions of this court, none of which have any tendency to show that the legislature has violated the requirements of uniformity with reference to the exclusion of farm products or farm produce when sold by the producer.
We hold that sections 1 and 2 of article 9 of our constitution within themselves furnish an answer to the contentions of the five members of the court aforesaid that the provisions of section 1 of the act are void. It will be observed on reading sections 1 and 2 of article 9 of the constitution, that under section 1 thereof the legislature is given the power to tax the occupations therein named. The provisions of the constitution in neither section 1 nor 2 are compulsory. The legislature may tax by section 1 any one or more or all of said occupations, or none of them, at its own election. By section 2 of article 9 the legislature may name other occupations that it will tax, or it may decline to name other occupations for taxation, at its own election. This court has no right or power to dictate to it how it shall decide those conclusions. The tax is an occupation tax, as is conceded in the per curiam decision. It is not a tax on the property owned by any of the members of such occupations but is a tax solely on their occupation, and this statement must be kept in mind at all times if we correctly interpret sections 1 and 2 of article 9 of the constitution. It is conceded by the five members of the court that the General Assembly may exempt the members of any occupation from taxation under article 9 of the constitution, if there is any reasonable ground upon which they may be exempted. This concession, as we believe, is fatal to their contention that there is no reasonable *Page 489 basis in this case upon which it can be held that farmers selling farm products or farm produce produced by them may be excluded from taxation upon their occupation of farming. We have already cited authorities, including the Supreme Court of the United States, that directly hold that any farmer or planter who as his sole occupation produces farm products or farm produce on his farm or plantation and sells the same at retail to the consumer may be exempted from paying an occupation tax under a law which requires other persons engaged in an occupation in which they sell any tangible personal property at retail, to pay an occupation tax, without violating the rule of uniformity as to the class upon which it operates. The reason for exempting the farmer or planter from paying such tax is, that he is merely selling such produce and products as an incident of his business. Such exemptions are made to encourage production. If a farmer really has two occupations — farming and conducting a retail store in the country, in which store he sells many articles of tangible personal property at retail which are not produced on his farm — he may be exempted from an occupation tax on his farm products and farm produce and taxed on the other articles that he sells as a country merchant that are not produced on his farm. We think it is clear that the five members of the court have committed error in their decision because they have persisted in insisting that a farmer whose sole occupation is to produce and sell at retail his farm products and farm produce to consumers has two distinct occupations, while, as a matter of fact, his selling at retail to consumers is a mere incident of his occupation of farming. They indicate in their decision that such a farmer has really three occupations if he sells to consumers at retail and also sells a large part of his farm products to a dealer therein who re-sells his products on the market for a profit. In this contention their decision conflicts with those of the Supreme Court of the United States and many other courts in this country. *Page 490
A person is a peddler only if he adopts peddling as his principal occupation or vocation or as one of his principal occupations or vocations — that is, only if he goes into peddling, which has been called a trade, as a regular and customary business or occupation. (Welton v. Missouri,91 U.S. 275, 23 L. ed. 347.) It seems to be well settled that farmers selling the products of their farms are not peddlers, and whether a person making itinerant sales of meat is a peddler would seem to depend on whether he raised and slaughtered the meat himself. (In re Snyder, 10 Ida. 682, 79 P. 819;Commonwealth v. Gardner, 133 Pa. St. 284, 19 A. 550.) Hawkers and peddlers are persons who practice carrying merchandise about from place to place for sale. In this country and Canada the words "hawker" and "peddler" are considered equivalent in law, the term "peddler" being more used at the present day. (15 Am. Eng. Ency. of Law, (2d ed.) sec. 1, p. 291, citing cases.) A farmer or gardener, although he may vend his commodities at retail from door to door and from town to town, is not regarded as a hawker or peddler so long as he confines his sales to the growth or production of his own farm or garden. The sale of farm or garden produce in such case is considered merely an incident in the principal business of farming or gardening. (Ibid. p. 294, citing Homewood v.Wilmington, 5 Houst. (Del.) 123, Burr v. Atlanta,64 Ga. 228, Davis v. Macon, 64 id. 132, Roy v. Schuff, 51 La. Ann. 86,People v. Sawyer, 106 Mich. 439, Commonwealth v.Gardner, supra, and Lansford v. Wertman, 18 Pa. Co. Ct. 469.) We respectfully submit that under the specific holdings of the Supreme Court of the United States and the other authorities in this country which we have cited, the provisions in this act that farm products or farm produce sold by the producer thereof do not violate said provisions of sections 1 and 2 of article 9 of the constitution for the reasons that we have above set forth. *Page 491
For the reasons that we have above stated we also contend that the provisions of section 1 of the act with respect to motor fuel as defined in the Motor Fuel Tax law do not in any way violate the provisions of sections 1 and 2 of article 9 of our constitution. We again call attention to the fact that the purpose of section 1 of the act, in part, is to definitely state that farm products or farm produce sold by the producer, and motor fuel as defined in the Motor Fuel Tax law aforesaid, are not to be considered as tangible personal property for the purposes for which the act was enacted by the legislature. In other words, that section purports only to indicate that farmers and gardeners when selling their products at retail to consumers are to be exempted from taxation under the act on their occupations of farming and gardening, and that all persons in the State, without exception, who sell motor fuel as defined in the Motor Fuel Tax law are exempt from taxation, under the act, on their sales of such motor fuel. In section 1 of the Motor Fuel Tax law it is declared: "For the purposes of this act: 'Motor fuel' means all volatile and inflammable liquids produced or compounded for the purpose of, or which are suitable and practicable for operating motor vehicles. It does not, however, include kerosene oil; unless such kerosene oil has been mixed, compounded or blended with other volatile and inflammable liquids for use in motor vehicles." Section 2 of that act provides that a tax is imposed on the privilege of operating motor vehicles upon the public highways of this State after July 31, 1929, at the rate of three cents per gallon for all motor fuel used in such motor vehicles upon such public highways. (Cahill's Stat. 1931, p. 1939.) "Public highways" mean or include roads improved with concrete, brick, asphalt, macadam and gravel, as declared in the Motor Vehicle act.
The tax imposed on the privilege of operating motor vehicles upon the public highway is to be used for the maintenance of the improved highways, or payment of bonded *Page 492 indebtedness incurred for such improvement, or for similar purposes, as provided in the Motor Fuel Tax law aforesaid. It is very apparent from the provisions of the act in question that all persons engaged in any occupation of selling tangible personal property at retail to the consumer were exempted from paying any tax on motor fuel, including gasoline, sold by them, because the practical effect of doubly taxing or burdening persons paying the privilege tax aforesaid could not well be otherwise avoided. This is so because of the fact that any person selling gasoline or motor fuel under the provisions of the act in question would have a right to add, and undoubtedly would add, the additional cost to him for motor fuel under said act. This bare fact constitutes a sufficient basis for exempting any person who sells such motor fuel from paying the sales tax on it aforesaid. The legislature had already placed all the burden of taxation upon the privileged class who operate motor vehicles upon the public highways that it deemed proper or necessary for the purposes for which that privileged tax was assessed. The five members of the court aforesaid answered this argument by saying that the privilege tax is against the consumer of gasoline who uses it for traveling on the highways of the State in motor vehicles. What difference does that make in arriving at the conclusion that that does or does not constitute a sufficient basis for refusing to collect the tax under the act in question for such motor fuel sold? The legislature has an equal right to protect the privileged class as well as the party who is engaged in selling such motor fuel. Such protection under this statute does not and can not have the effect to cause any discrimination between parties engaged in selling such motor fuel, and it cannot and does not have the effect to violate the uniformity clause as to taxation in article 9 of the constitution. This is so whether the person engaged in the business of selling motor fuel is engaged solely in that business or whether he sells not only motor fuel but a number of other articles such as *Page 493 we have above enumerated that sellers of motor fuel often sell. One of the confusing things that the writers of the per curiam opinion persist in stating is, that a party who sells motor fuel is engaged in as many businesses or occupations as he sells articles of tangible personal property to the consumer at retail. All persons who engage in a business or occupation of selling tangible personal property at retail to the consumer are engaged in one occupation or business although they may sell a hundred articles or more of such tangible personal property. In other words, he is simply a retail merchant of some character who sells groceries or dry goods or both of such articles.
What does the word "uniformity" mean as it is used in article 9 of our constitution? That article considers, in the first place, taxation of property of all kinds, real and mixed property and both tangible and intangible personal property. Would anyone insist that the requirement of uniformity in taxing real and mixed property and tangible and intangible personal property is violated if every person is taxed at the same rate on every character of property that is taxed? We again ask, would the rule of uniformity be violated in taxing occupations if all persons in the State are taxed at the same rate on their occupations? Taxes on occupations are what we are considering in this case, and we undertake to say, without fear of successful contradiction, that there is not a single occupation in this State that is not taxed under the act in question at the same rate as every other occupation. That is true whether the individual is engaged in selling one item, only, of tangible personal property to the consumer or a hundred articles of tangible personal property to the consumer. The per curiam opinion again says: "Not all gas consumed is taxed, as the consumer may secure return of the tax paid by him on motor fuel not used on the highways. Unless the purchaser of gasoline chooses to use it on the highways he pays no tax on it." Those statements are true, but they have absolutely *Page 494 no tendency to show that the rule of uniformity of taxation mentioned in article 9 of the constitution is violated, for the simple reason that no person in Illinois who sells motor fuel, including gasoline, is required to pay a tax on it, no matter how the consumer may use it. The provision of the constitution as to taxes on occupations is, that the General Assembly shall have power to tax occupations as it shall from time to time direct by general law, "uniform as to the class upon which it operates." If every occupation is taxed at the same rate of taxation as it is under the act in question, how can it be said that the tax is not uniform as to the class upon which it operates? How could it be said that any person whose occupation is taxed could be said to be discriminated against if his occupation is taxed at the same rate as every other occupation? These questions do not require any further answers by us, and no further argument is required, or even the citation of authorities, to show that the provisions of the act in question do not violate article 9 of the constitution in any way whatever.
The provision in the last part of section 1 of article 9 of the constitution that the tax on occupations, and the other taxes on subjects other than property taxes, shall be uniform as to the class upon which it operates, clearly means that such taxes shall be uniform as to the class of persons which it affects or upon which it operates. There is no such provision contemplated in that article that the requirement of uniformity is violated if a statute levying such taxes expressly exempts all persons selling an article of tangible personal property from such taxation. The suggestion of the five members of the court that the provision of the Federal government that the purchasers of tobacco who pay a government fax furnishes as good a basis for excluding the sellers of tobacco from the tax under this act is not tenable. The Federal tax aforesaid is nothing like as large as the tax levied under the act in question. But the main reason why such contention is not tenable is that this State *Page 495 has never given up its right, in any case, to levy a tax that is permissible in our constitution because the Federal government has also imposed a similar tax. The Inheritance Tax law of this State is a familiar example showing that our assertion is true. The fact that the Federal government levies a tax on incomes or upon any other subject of taxation would not at all be considered as any reason why the legislature of this State should not levy the same character of taxes. The reason for the exemptions that we have sustained in this case is based on the sole ground that the State does not want to doubly burden those paying the privilege tax aforesaid by levying a tax on persons selling motor fuel as defined in the Motor Fuel Tax law.
The per curiam opinion also omits the following paragraph of our original opinion:
"There is no violation of section 3 of article 9 of the State constitution by the act. That section relates to the exemption of property from taxation. The tax imposed by this act is not, as we have shown, a property tax. The provision of the act that the term 'tangible personal property' shall not mean or include farm products and farm produce sold by the producer thereof, or motor fuel as defined in the Motor Fuel Tax law, does not exempt any property from taxation. That is true because no property is taxed by the act but the tax is upon persons engaged in the business of selling tangible personal property at retail, measured by the amount of their sales."
The per curiam opinion has not considered the propositions that we passed on in the above paragraph and no reason is given for excluding it. Our only reason for here reproducing our holding on that question is to show that in the original opinion we passed on every question raised. We do not deem it necessary to reply to the concluding part of the per curiam opinion written by another one of the five members of the court, because there is no holding in it that *Page 496 differs, in substance, in any way from the concluding part of our opinion.
For all the reasons heretofore given by us we respectfully dissent from that part of the per curiam opinion that holds that section 1 of the act violates the provisions of article 9 of the constitution.