dissenting:
I dissent.
Rule 51 is not invalid and provides a reasonable basis for determining taxability under the Retailers Occupation Tax and Use Tabc; thus, I disagree with the substantive holding of the majority. Furthermore, I am not persuaded that the plaintiffs were entitled to injunctive relief, there being in this record a clear and discernible adequate remedy at law.
In Owens-Illinois Glass Co., the Illinois. Supreme Court clearly carved out an exception to the general rule and permitted equitable or injunctive relief to be obtained to enjoin the collection of an illegal tax. That exception was interred in Illinois Bell Telephone Co. v. Allphin. In this case, the court abolished the Owens-Illinois Glass Co. exception and the language of the court is to the effect that fundamental fairness precluded a retroactive abolition of the exception in that case. I do not agree that the procedural modification is not applicable to any case pending on March 24, 1975, the date the Illinois Bell Telephone Co. opinion was filed.
In this case, notwithstanding the exception, and even assuming the application of the Otoens-Illinois Glass Company exception, the plaintiff seeks a determination of the illegality of a rule of the department and alleged the nonexistence of a remedy at law in the face of statutory and administrative procedures available to it to challenge the validity of the rule after a full documentation and hearing at the administrative level. See Alfred Engineering, Inc. v. Illinois Fair Employment Practices Com., 19 Ill.App.3d 592, 312 N.E.2d 61.
Upon the substantive issue, it is the position of the plaintiff that as to paper products used upon the premises it need not pay a use tax upon paper products purchased by it from out-of-State suppliers nor a retailers occupation tax upon products purchased by it from in-State suppliers for the reason that such products are purchased for resale and therefore exempt under the specific language of the statute. I am unable to distinguish this case from Roberts Products Co. v. Nudelman, or American Airlines, Inc. v. Department of Revenue. In this case, as in the cited cases,, the cost of the paper products used by plaintiff to serve food on its premises is merely a cost of doing business. Here, as in the cited cases, the cost of the paper products used for food and beverage served on the premises is included in the cost of the food and beverage sold by the plaintiff.
Rule 51 of the Department of Revenue is a reasonable regulation and it establishes a factual basis for determining the last transfer for consideration and represents a clear attempt to avoid multiple taxation. For the reasons stated, both procedural and substantive, I would reverse the judgment of the circuit court of Macon County.