I concur in the view expressed in the per curiam opinion that section 4 of the so-called Sales Tax act is unconstitutional and void because it attempts to delegate legislative power to the Illinois Emergency Relief Commission and to county boards in counties having less than 500,000 inhabitants. However, I do not concur in the opinion of the majority of the court that the provisions of the act are insufficient to exempt persons engaged in the business of selling farm products or farm produce when the sales are made by the producer at retail or in the business of selling motor fuel as limited by the act. Section 2 of the act imposes a tax upon persons engaged in the business of selling tangible personal property at retail. Section 1 declares that "tangible personal property" does not mean nor include farm products or farm produce sold by the producer thereof, or motor fuel as defined in the Motor Fuel Tax law. It is claimed that the language of section 1 does not constitute a definition of "tangible personal property." To my mind such a contention is wholly untenable. It seems clear that the language of section 1 was intended to except and exclude farm products and motor fuel, when sold as above mentioned, from the meaning of the term "tangible personal property." It is conceded that the General Assembly, in the enactment of an occupational tax, may include or exclude whatever occupations it pleases. The only limitation upon the power is that the act shall operate uniformly upon all classes of occupations which are either included or excluded. It is not urged, nor can it be urged, that there is lack of uniformity as to the application of the act to those persons in the class engaged in the sale of farm products or farm produce at retail or to those in the class engaged in the business of selling motor fuel. The contention of the majority of the court is that such dealers were first placed in the class against which the tax was imposed and then excluded from it. Such was not the intent of the act. *Page 478 Quite to the contrary, dealers in farm products and dealers in motor fuel as mentioned in the act were never included within the terms of section 2, which imposes a tax upon persons engaged in the business of selling "tangible personal property." It seems to me the act should be construed to mean that a tax is imposed upon persons engaged in the business of selling "tanglible personal property" as that term is used and defined in section 1 of the act, and that one of the evident and apparent purposes of section 1 is to exclude farm products or farm produce sold by the producer thereof, or motor fuel as defined in the Motor Fuel Tax law, from the provisions of section 2.
For the above reasons, as well as those contained in the dissenting opinion of Mr. Justice Duncan so far as they relate to the exemption of persons engaged in the business of selling farm products and motor fuel, I concur in the opinion of the majority of the court only as to the invalidity of section 4 of the act.