dissenting:
I must dissent from the majority in this case. I believe that the statutes are ambiguous and do not clearly encompass the type of funds here involved, and I disagree with the majority’s holding that the Department of Revenue’s interpretation of the statutes for 35 years may be rejected at the whim of the Department, absent any legislative expression.
The statutes themselves do not specifically include either construction contributions or equipment or appliance rentals in their definitions of “gross receipts.” I think it is certainly debatable whether these types of payments are encompassed in “consideration received for [gas] [electricity] *** and for all services rendered in connection therewith ***” (Ill. Rev. Stat. 1971, ch. 120, pars. 467.16,468).
The majority opinion is bottomed on the premise that the language of the statute is clear and therefore requires no construction. I cannot agree. If it is clear that the statute imposes a tax on the transactions here in question, then it is apparent that for 35 years the Department has not been collecting millions of dollars in taxes from utilities to which the State of Illinois was “clearly” entitled. It is hard to believe that such an oversight would have gone unnoticed and that someone would not have been called to politically account for such a sizeable abandonment of State revenue.
Also, if it is clear that such transactions fall within the statutory definition of “gross receipts,” why would the legislature find it necessary to include in the Messages Tax Act not only the definition of “gross receipts ” that is found in the Gas Revenue Tax Act and in the Public Utilities Revenue Act, but also language which specifically includes proceeds from leasing or rental of equipment or property (Ill. Rev. Stat. 1975, ch. 120, par. 467.1). The majority opinion attempts to explain this additional language by saying that it is a recognition that telephones are ordinarily supplied by the utility. It appears to me that if providing telephones were a part of the services traditionally supplied by the utility, such a service would more likely be recognized as falling within the language, “all services rendered in connection therewith” in the definition of “gross receipts” and that it would not have been necessary to specifically provide that income from such rentals is taxable. Since the legislature did include this special provision in the Messages Tax Act, I must conclude that it was the intent of the legislature that income from this source is not otherwise taxable and that it was necessary to specifically provide for its taxation. The failure of the legislature to include similar provisions in the Gas Revenue Tax Act (Ill. Rev. Stat. 1975, ch. 120, par. 467.16), and the Public Utilities Revenue Act (Ill. Rev. Stat. 1975, ch. 120, par. 468), indicates to me that it was the intention of the legislature that income from these sources was not to be taxed under these acts. If we accept the majority’s explanation that the special provision in the Messages Tax Act is a recognition that telephones are ordinarily supplied by the utility, it would appear that the absence of the special language including such transactions in the other two acts also is a recognition that these transactions are not customarily a part of the job of furnishing gas or electricity.
One of the plaintiff’s arguments is that the Department of Revenue for 35 years interpreted the statutes as not authorizing a tax of this type and should not be permitted to suddenly reverse its position. The majority rejects this contention, noting that while administrative interpretations are usually given weight, erroneous interpretations are not binding. The majority ignores the fact that for 35 years the legislature acquiesced in the Department’s previous interpretation, and has not objected to this day. In my opinion, such a long period of legislative acquiescence in the previous interpretation that no tax should be imposed on these payments is the strongest indication of the correctness of that construction. To allow the Department of Revenue to suddenly change its position after all this time, in the absence of any legislative action, is to allow a nameless, faceless, administrative body, not responsible to the electorate or the legislature, to impose taxation at its whim. If the previous interpretation of the statutes were in fact erroneous, the legislature is the proper body to point out the error, not the Department of Revenue, and not this court, at least under these circumstances. Our constitution (Ill. Const. 1970, art. IX, sec. 1) vests the exclusive power to raise revenue in the General Assembly, the representatives of the People, and not in an administrative body.
For these reasons I dissent from the majority opinion.