concurring in part and dissenting in part:
I concur only in that portion of the majority’s opinion which holds unconstitutional the extraterritorial application of the ordinance. I do so not only because home rule units have no extraterritorial powers, but also because its extraterritorial application would pose severe due process problems. (See National Bellas Hess, Inc. v. Department of Revenue (1967), 386 U.S. 753, 18 L. Ed. 2d 505, 87 S. Ct. 1389; Nelson v. Sears, Roebuck & Co. (1941), 312 U.S. 359, 85 L. Ed. 888, 61 S. Ct. 586; Nelson v. Montgomery Ward & Co. (1941), 312 U.S. 373, 85 L. Ed. 897, 61 S. Ct. 593.) I would uphold the remainder of the ordinance as a valid exercise of the city’s home rule authority under article VII, section 6(a), of the 1970 Constitution.
The majority’s holding that this is a prohibited occupation tax is basically a reiteration and expansion of Mr. Justice Ryan’s dissent in Paper Supply Co. v. City of Chicago (1974), 57 Ill. 2d 553, 583. The late Mr. Justice Davis and I joined in that dissent, for I was convinced that the tax in Paper Supply was a tax “ ‘upon or measured by income or earnings or upon occupations’ ” and thus prohibited by section 6(e) of article VII of our 1970 constitution unless specifically authorized by the General Assembly. Our views did not prevail, however, and I subsequently accepted, as a dissenting judge must, the majority’s interpretation of the .constitutional provision (see People v. Lewis (1981), 88 Ill. 2d 129, 165, 166, 167 (Goldenhersh, C.J., and Ryan and Clark, JJ., concurring)).
Since then opinions in cases indistinguishable in legal principle from the one now before us were written and adopted in reliance upon the rationale of Paper Supply. (Kerasotes Rialto Theater Corp. v. City of Peoria (1979), 77 Ill. 2d 491; Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10; Mulligan v. Dunne (1975), 61 Ill. 2d 544.) Undoubtedly, tax ordinances have been adopted by unknown numbers of home rule units in reliance upon those cases. While the majority opinion attempts to minimize the possibility of challenges to those ordinances by indicating that all of our earlier decisions involved different and distinguishable facts and taxes, even a cursory reading of those cases will, in my judgment, demonstrate the fallacy of that statement. Apparently, however, because this tax is viewed as particularly undesirable it is now stricken, in part on the ground that it is a prohibited occupation tax. The opinion so holding is, in my judgment, simply incompatible with our earlier opinions and totally inconsistent with S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56 and Jacobs v. City of Chicago (1973), 53 Ill. 2d 421, among others.
In Paper Supply, the court held that the Chicago employers’ expense tax ordinance which imposed a $3 per month tax upon employers who employed 15 or more individuals as commission merchants or full-time employees was not an occupation tax in violation of article VII, section 6(e), of the 1970 Constitution. The court reached this conclusion after determining that the delegates had not intended that the term “tax upon occupations” be defined any differently than this court had previously defined “occupation tax,” and after noting that the Constitution requires that we resolve the question in favor of a broad rather than a narrow interpretation of a home rule unit’s taxing power. Ill. Const. 1970, art. VII, §6(m).
Our long-standing definition of an occupation tax which would be beyond the power of a home rule unit to enact, absent express authorization by the General Assembly, is as follows:
“[A]n occupation tax has one of two missions: either to regulate and control a given business or occupation, or to impose a tax for the privilege of exercising, undertaking or operating a given occupation, trade or profession. Its effect is to license a person engaged in a given calling or occupation. The payment of the tax itself is a condition precedent to the privilege of carrying on a business or occupation.” Reif v. Barrett (1933), 355 Ill. 104, 109.
The Chicago service tax ordinance is not designed to regulate or to impose a tax upon any given occupations; its purpose is to impose a tax on one who purchases service from an individual or entity in the city of Chicago. It includes within its scope a broad range of services without regard to the occupational status of those providing the service. (See Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, 22-23.) The ordinance specifies that the tax imposed and the obligation to pay is upon the purchaser. That burdens connected with or related to the tax fall upon those engaged in occupations is neither unique to this ordinance nor sufficient to make the tax one on occupations: an “ordinance must be designed to impose, and in fact impose, a tax upon given occupations.” (Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, 23; see also S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, 63 (“Where the economic burden of a tax may fall is not a circumstance affecting the question where its legal incidence rests”).) I recognize that those who provide services in the city of Chicago engage in various occupations and callings, but when the legal incidence of a tax is expressly placed on the purchaser of the services, and the ordinance is not otherwise designed to regulate or control those providing the services, it cannot fairly be characterized as an occupation tax. Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, 23.
Our recent decision in Estate of Carey v. Village of Stickney (1980), 81 Ill. 2d 406, does not compel a different result. In Stickney, a divided court held that a 1974 Stickney tax ordinance which required racetrack licensees to pay a 10-cent tax for each person who purchased a ticket of admission was a tax imposed upon those licensed to conduct racing meets and was therefore an unconstitutional occupation tax. Although the dissenters believed that the tax was virtually identical to that upheld in Fox Valley, the majority found that the legal incidence of the tax was upon those licensed to conduct racing meets, thereby distinguishing our prior decisions in which the legal incidence of the tax was expressly placed on the consumer. It seems clear to me that the Chicago service tax, unlike the tax in Stickney, places the legal incidence of the tax on the purchaser of services and under our earlier decisions is not an occupation tax.
The collection methods and the penalty provisions in this ordinance are not novel and do not otherwise affect the nature of the tax. In S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, this court held that the Chicago cigarette tax ordinance was not an occupation tax though the ordinance placed the collection responsibility upon wholesalers and retailers. Since the legal incidence of the tax was placed on the consumer, the wholesalers and retailers merely served as collection agents. (To the same effect are Mulligan v. Dunne (1975), 61 Ill. 2d 544; Jacobs v. City of Chicago (1973), 53 Ill. 2d 421; Kerasotes Rialto Theater Corp. v. City of Peoria (1979), 77 Ill. 2d 491.) Similarly, penalty provisions here simply insure the integrity of the collection procedures; they are not significant in determining where the incidence of the tax rests. S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, 63; Jacobs v. City of Chicago (1973), 53 Ill. 2d 421, 424.
At this late date, there is no justification for the majority’s return to the constitutional debates to determine the question of whether this tax is “upon occupations,” as that term is used in section 6(e) (2) of article VII of the Constitution. Both the majority and dissenting opinions in Paper Supply exhaustively reviewed the convention proceedings to determine the delegates’ intention, and a majority of this court came to a conclusion opposite to that reached by today’s majority as to that intention. The majority’s departure today from this court’s consistent line of decisions undermines any stability and uniformity heretofor existing in the area of home rule taxing authority under our constitution.
I do not agree that the “commodity and security” exemption is unconstitutional and would, by itself, render the entire ordinance invalid. In my judgment, the majority’s approach to the constitutionality of this proviso is fundamentally wrong and in derogation of elementary rules of statutory construction. Those rules require this court to construe the ordinance so as to sustain its constitutionality if such a construction is a reasonable alternative. (Illinois Polygraph Society v. Pellicana (1980), 83 Ill. 2d 130, 137; Anderson v. Schnieder (1977), 67 Ill. 2d 165, 176; Board of Education v. Ellis (1975), 60 Ill. 2d 413, 416; see also Environmental Protection Agency v. Pollution Control Board (1981), 86 Ill. 2d 390, 401-02.) Since we presume that a legislative body acts in view of the Constitution and does not intend the enactment of a void law (Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill. 2d 556, 561; Pliakos v. Illinois Liquor Control Com. (1957), 11 Ill. 2d 456, 459-60), all doubts or uncertainties arising from the language of the act must be resolved in favor of its validity. (S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, 64-65; People v. Newcom 1925), 318 Ill. 188, 190.) While it is true, as the majority points out, that this court’s function is to give effect to a provision as written, this is so only if its meaning is certain and unambiguous (Belfield v. Coop (1956), 8 Ill. 2d 293, 307) or free from doubt (Weiss Memorial Hospital v. Kroncke (1957), 12 Ill. 2d 98, 105). Where an ordinance under attack is open to a dual construction, this court has uniformly held that we will adopt a construction that sustains its validity (e.g., People ex rel. Dolan v. Dusher (1952), 411 Ill. 535, 540; Progressive Party v. Flynn (1948), 400 Ill. 102, 112; City of Benton v. Blake (1914), 263 Ill. 358, 360), particularly where that construction has been adopted by the enacting body (Environmental Protection Agency v. Pollution Control Board (1981), 86 Ill. 2d 390, 403).
• The disputed provision, admittedly poorly drafted, is susceptible of two constructions. It states:
“Provided that the foregoing service tax shall not apply to the commodity or security business and no transaction tax shall, for a period of ten years from the effective date of this ordinance, be imposed upon any transaction upon a futures exchange designated by the Commodity Futures Trading Commission or a securities exchange regulated by the Securities and Exchange Commission.”
Literal enforcement of the first clause of the proviso in conjunction with the second clause would lead to the illogical result of indefinitely exempting from the tax persons who purchase service from anyone associated with the entire commodity or security industry, yet limiting to only a 10-year exemption persons who purchase service from those engaged in the industry for exchange transactions. At the end of the 10-year period, exchange purchasers would presumably be subject to the tax, yet they would remain exempt from the tax by virtue of the only then-existing provision — the first clause of the proviso. It is not reasonable to believe that the city council of Chicago intended such result. (See Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121 (we presume a legislative body did not intend an absurdity or illogical result); see also People v. Warren (1977), 69 Ill. 2d 620, 628.) Moreover, if this interpretation is to be accepted, we would have to believe that the city council determined it would tax exchange purchasers in 10 years but allow purchasers who deal with anyone else connected with the securities business to remain exempt. There is no logic in such a scheme, and I would therefore reject the plaintiffs’ contention that this provision was intended as a blanket exemption of all purchasers who purchase any type of service from those engaged in the commodity or security business.
A second possible construction of the proviso and that given it by the city, which would have been charged with its enforcement, is that the exemption relates only to exchange transactions and only for a 10-year period. Such construction is a considerably more reasonable one, consistent with the established rules of statutory construction and this court’s obligation to give the product of the city council of Chicago a constitutional meaning, if possible. The majority’s broad interpretation of the exemption necessarily forces the conclusion that it is unconstitutional. In view of the cited rules, such an interpretation is manifestly erroneous.
Under the more narrow and reasonable interpretation placed upon this provision by the enacting body, it is apparent that it can withstand constitutional scrutiny. That a legislative body has broad powers to establish reasonable classifications in defining taxation is well settled. (Lehnhausen v. Lake Shore Auto Parts Co. (1973), 410 U.S. 356, 35 L. Ed. 2d 351, 93 S. Ct. 1001; Williams v. City of Chicago (1977), 66 Ill. 2d 423, 432; Fiorito v. Jones (1968), 39 Ill. 2d 531, 535; People ex rel. Holland Coal Co. v. Isaacs (1961), 22 Ill. 2d 477.) Such bodies may define a general class which is subject to a tax and then specifically remove a subclass so long as the classification is based upon real and substantial differences between those taxed and those not taxed. (Fiorito v. Jones (1968), 39 Ill. 2d 531, 535-36; City of Chicago v. Ames (1937), 365 Ill. 529.) Where the exemption takes its character from an entity other than that upon which the incidence of the tax has been placed, it is not objectionable so long as there is a reasonable basis for differentiating between such entities. (Kerasotes Rialto Theater Corp. v. City of Peoria (1979), 77 Ill. 2d 491, 496-97.) The presumption favoring the validity of classifications in the area of taxation places the burden on the one attacking such classification to negate every conceivable basis which might support it. (Williams v. City of Chicago (1977), 66 Ill. 2d 423, 433, citing Lehnhausen v. Lake Shore Auto Parts Co. (1973), 410 U.S. 356, 364, 35 L. Ed. 2d 351, 358, 93 S. Ct. 1001, 1006.) The classification must therefore be upheld if any state of facts may reasonably be conceived that would sustain it. Department of Revenue v. Warren Petroleum Corp. (1954), 2 Ill. 2d 483, 490.
The determination by the city council of Chicago to exempt exchange transactions from the tax appears neither arbitrary nor unreasonable. It may have deemed it initially impractical or unduly burdensome to impose a tax on such transactions, choosing instead to allow for a 10-year moratorium. Too, it may have desired to attract such commerce to Chicago. (See Adler v. Illinois Bell Telephone Co. (1978), 72 Ill. 2d 295, 297.) It is also conceivable that the potential conflict with Federal regulations in this area might have influenced the city council’s decision to grant, at least initially, such an exemption. Moreover, there is a distinct difference between the services otherwise subject to the tax and those exempted under this provision. (See Williams v. City of Chicago (1977), 66 Ill. 2d 423.) These considerations furnish sufficient justification for exempting from the tax those purchasers who purchase services for security- or commodity-exchange transactions. The exemption does not, therefore, violate the uniformity clause of the State Constitution (Ill. Const. 1970, art. IX, § 2) or the fourteenth amendment to the Federal Constitution.
The majority goes on to conclude that the invalidity of this exemption, under their broad interpretation of its meaning, would render the ordinance void in its entirety. Even assuming the commodity and security exemption to be invalid, that determination should not defeat the ultimate validity of the tax. The best indication of the city council’s intent is the language it voted to adopt. (Coryn v. City of Moline (1978), 71 Ill. 2d 194, 200; General Motors v. Industrial Com. (1975), 62 Ill. 2d 106, 112.) That language could not be clearer. The severability clause provides:
“Section 2. If any provision of this Chapter or application thereof to. any person or circumstance is held unconstitutional or otherwise invalid, such invalidity does not affect other provisions or applications of this Chapter which can be given effect without the invalid application or provision, and to this and each such invalid provision or invalid application of this Chapter is severable, unless otherwise provided by this Chapter. In particular, but without limitation, each provision creating an exception to or an exemption or exclusion from the imposition of the tax is severable. It is hereby declared to be the legislative intent of the City Council that this Ordinance would have been adopted had any such unconstitutional or otherwise invalid provision or application not been included.” (Emphasis added.)
While it is true that a severability clause is not conclusive (Village of Oak Lawn v. Marcowitz (1981), 86 Ill. 2d 406), there exists no rule of construction authorizing a court to declare that a legislative body does not mean what its plain language says. Christian Action Ministry v. Department of Local Government Affairs (1978), 74 Ill. 2d 51, 57; Franzese v. Trinko (1977), 66 Ill. 2d 136, 139-40.
The rules of construction which should be utilized in conjunction with this severability clause are also misconstrued by the majority. It is apparent to me that this exemption proviso is not so mutually connected with and dependent upon the other provisions of the ordinance as to make it inseparable. (See Fiorito v. Jones (1968), 39 Ill. 2d 531, 540.) It is wholly independent of the substance of the ordinance. Moreover, as the majority correctly notes, in order to render the entire ordinance invalid we must be able to say that the city council would not have passed this ordinance with the exemption eliminated. (Village of Oak Lawn v. Marcowitz (1981), 86 Ill. 2d 406, 421; City of Carbondale v. Van Natta (1975), 61 Ill. 2d 483, 490.) The significance of framing the issue in this fashion is more than mere semantics. It defines the burden. The plaintiffs must show this to be the legislative intent. In view of the severability clause and the independent nature of this proviso, it is incumbent upon the plaintiffs to demonstrate that the city council would not have passed this ordinance without the exemption. There is simply nothing in this record which so indicates.
Finally, the majority determines that upholding this ordinance after invalidating the exemption is tantamount to the court’s creating a new ordinance in which the court imposes a tax upon the purchasers of services from securities and commodities brokers. Such a characterization is mistaken; reliance upon cases cited is misplaced. In Ohio Oil Co. v. Wright (1944), 386 Ill. 206, 223, the court struck down a provision of the Oil Production Tax Act which provided for an alternative classification under which the tax would be applied should another provision of the Act be declared unconstitutional. In Springfield Gas & Electric Co. v. City of Springfield (1920), 292 Ill. 236, the court struck out a provision exempting municipalities from the Public Utilities Act and declared that to hold the remainder of the Act valid would nullify a large portion of the Municipal Ownership Act which the legislature intended should remain intact and operable. Those situations are not analogous to the one at hand. Here the legislative intent is that “this ordinance would have been adopted had any such unconstitutional or otherwise invalid provision or application not been included.” We would not be creating an “alternate” classification. We would not be engaging in a legislative function by severing an invalid exemption. On the contrary, we would and should be following the plain language of this ordinance in accurately interpreting this provision as an indisputable expression of the legislative intent.
Lastly, I cannot approve of the majority’s apparent dictum that this ordinance may also constitute an impermissible regulation of various professionals. Plaintiffs rely primarily upon Board of Education v. City of Peoria (1979), 76 Ill. 2d 469, which I consider inapposite.
In City of Peoria this court held that the ordinance in question constituted an impermissible regulation on the school district in direct contravention of section 1 of article X of the 1970 Constitution. Pursuant to that constitutional mandate, the legislature exercises plenary power over the Illinois school system and has enacted a comprehensive scheme which describes in detail the powers, duties and obligations of school boards. The record-keeping, reporting and other obligations imposed under the ordinance were held to constitute an unauthorized regulation of the school district because they imposed duties and conferred powers on the board over and above those specified in the comprehensive statutory scheme. Our constitution contains no similar mandate regarding the professional plaintiffs before us.
While it is firmly established that the power to regulate and define the practice of law is a prerogative of the judicial department as one of the three divisions of government created by our constitution (Lozoff v. Shore Heights, Ltd. (1977), 66 Ill. 2d 398, 401-02; In re Anastaplo (1954), 3 Ill. 2d 471, 475; People ex rel. Chicago Bar Association v. Goodman (1937), 366 Ill. 346, 349; In re Application of Day (1899), 181 Ill. 73), it does not follow that the Constitution prohibits a home rule unit from legislating in such a manner as to impose incidental obligations and burdens upon attorneys. The Constitution expressly confers upon a home rule unit the power to tax, except as specifically limited, and a necessary corollary of the taxing power is the power to establish reasonable collection procedures. The ordinance is a taxing measure enacted pursuant to the city’s power under the Constitution, and the provisions imposing duties and sanctions upon the tax collector do not serve to convert the tax into a license for revenue or a regulatory measure. See Paper Supply Co. v. City of Chicago (1974), 57 Ill. 2d 553, 576; Jacobs v. City of Chicago (1973), 53 Ill. 2d 421.
Contrary to the majority’s conclusion, the statutory provisions governing the other professionals represented here do not evidence a legislative intent to exercise plenary power over every aspect of these professions. Without exception, the statutes provide that “any power or function set forth in this Act to be exercised by the State is an exclusive State power or function.” (See Ill. Rev. Stat. 1979, ch. 111, par. 1203 (architects); par. 2255 (dentists); par. 4477 (physicians); par. 5536 (public accountants).) Since I do not see this ordinance as an attempt to regulate any profession, I cannot agree with the plaintiffs that they are immune from incidental tax-collecting and record-keeping responsibilities.
In conclusion, I must say that I too share the belief of some of my colleagues that this is an undesirable form of tax which will be difficult to enforce, but it is not within the scope of the judicial function to determine the social utility or feasibility of legislative decisions so long as they remain within constitutional limits (People ex rel. City of Canton v. Crouch (1980), 79 Ill. 2d 356, 370). Except for that portion of section 200.5—3 defining when a purchase of service is in the city, which I also believe exceeds the city’s territorial authority, I would uphold this ordinance as a constitutional exercise of the city’s taxing power.
GOLDENHERSH and CLARK, JJ., join in this partial concurrence and partial dissent.