dissenting:
In this case a very limited issue was submitted for decision. The opinion adopted by the court has gone far beyond that limited issue, and has said that the tax falls upon transactions which the Department of Revenue in its brief in this case conceded are not subject to the tax, and which the legislature has clearly indicated are not subject to the tax. ¿The Department of Revenue has amended its regulations to reflect the views expressed in the opinion of the court. The net result is a tax imposed by this court rather than by the General Assembly| and Mr. Justice House and I therefore dissent.
The extent to which the court’s opinion deviates from the existing law, as well as the extent to which it goes beyond the question submitted for decision, can most readily be shown by quotations from the Department’s brief in this case.
Material Service Corporation v. McKibbin, 380 Ill. 226, decided in 1942, is the definitive case concerning both the taxability of the sale of building materials to construction contractors and the taxability of the transfer of those materials by the contractor to the landowner. The holding of that case is thus described in the brief of the Department: “In the Material Service case, this Court held that where the contractors purchased materials for the construction of homes or other buildings for persons -Other than-the- contractors upon lands that the contractors did not own. (1) the seller of fixtures and building materials did not incur the tax because the contractors ‘resold’ those materials to the owner of the lot by constructing the home or other building for him, wherefore the supplies sold to the contractors by supply houses were ‘for resale’. But the court held that the contractors did not incur the tax because although they did, indeed ‘resell’ the material, thereby exempting their vendors, the supply houses, from the tax, they did so in.the course of a ‘service-occupation.’ construction contracting, and not as retail merchants.” (Italics as in the Department’s brief.)
The Department did not seek to bring about any change in the basic position thus taken in 1942 and adhered to over the intervening years. The narrow issue that the Department raised in this case was stated in the following terms in the Department’s brief:
" ‘THE PLAINTIFF CORPORATION MADE SALES OF BUILDING MATERIALS TO REAL ESTATE DEVELOPERS, SPECULATIVE DEVELOPERS, WHO PURCHASED AND USED THE MATERIALS TO BUILD HOMES UPON THE DEVELOPERS’ LOTS, WITH THE THEN INTENTION OF SELLING THE LOTS TO PROSPECTIVE HOME OWNERS. IT WAS NEVER THE INTENT OR PURPOSE OF THE DEVELOPERS TO RETAIN AND USE THIS PROPERTY FOR THEIR OWN USE.’ IN SOME BUT NOT IN ALL ‘INSTANCES THE BUILDERS HAD, PREVIOUS TO THE PURCHASE OR DELIVERY OF THE MATERIALS, ENTERED INTO A BONA FIDE WRITTEN CONTRACT OF SALE’ OF THE HOME TO BE BUILT ‘WITH A THIRD PARTY. AS TO THESE SALES, THE DEPARTMENT CONCEDES THAT THEY ARE NOT SUBJECT TO THE TAX.’
“BUT ‘IN SOME INSTANCES THE CIRCUMSTANCES WERE THE SAME, BUT THERE WAS ONLY AN ORAL CONTRACT OF SALE TO THE THIRD PARTY. IN THESE INSTANCES THE DEPARTMENT CONTENDS THAT THE SALES ARE SUBJECT TO THE TAX. IN OTHER INSTANCES THERE WAS NO WRITTEN OR ORAL CONTRACT OF SALE AT THE TIME OF THE PURCHASE AND DELIVERY OF THE MATERIALS TO THE DEVELOPER, BUT THEREAFTER THE PROPERTY WAS SOLD’ TO A PURCHASER OF THE HOME. ‘HERE, TOO, THE DEPARTMENT CONTENDS THAT THE SALE BY PETITIONER IS SUBJECT TO THE TAX.’
“DO THE SALES OF BUILDING MATERIALS TO SPECULATIVE BUILDERS FOR THE CONSTRUCTION BY THE BUILDERS OF HOMES MEASURE THE ILLINOIS RETAILERS’ OCCUPATION TAX WHEN (1) THERE IS NO CONTRACT BETWEEN THE BUILDER AND ANY PROSPECTIVE HOME OWNER AT THE TIME THAT THE MATERIALS ARE SOLD TO HIM AND THAT THE HOME IS BUILT OR (2) THERE IS ONLY AN ORAL AND HENCE WHOLLY UNENFORCIBLE CONTRACT FOR THE SALE OF THE HOME AT THAT TIME.” (Underscoring as in the Department’s brief; the quotations are from the judgment of the trial court in this case.)
Other portions of the Department’s brief reiterate its position. It said:
i"“For all purposes relevant to a decision in this case, sales by materialmen and purveyors of building supplies for the construction of homes and buildings may be divided into four distinct classes:
“In the first class, the materials and supplies are sold to and paid for by a contractor who amalgamates them into a home or building upon the land of an owner who is not the contractor but who has employed the contractor to build the home or other building. In this class of cases, not involved in this case, this Court has held that the material-men and supply houses do not incur the tax because the contractor ‘transfers’ the materials and supplies and therefore ‘resells’ them to the owner of the land as tangible personal property. They do not become real estate until they are incorporated into the home by incorporating them into a building that is constructed on the land. The Department does not attempt to impose any tax measured by such sales. Material Service Corp. v. McKibbin, (1942), 380 Ill. 226.
“In the second class of these transactions, the builder has sold or has at least entered into a definitive and en-forcible written contract for the sale of a home (or super market or filling station or other edifice) with the purchaser. Such a contract transfers equitable title to the vendor, subject only to the vendor’s right of forfeiture or right of foreclosure of a vendor’s lien from any defaults in the payment of the purchase price. The contractor then builds the home for the purchaser or prospective vendee under a written contract with that purchaser. The Department concedes that such sales are to the builders as a contractor and that the gross receipts from those sales do not measure the Illinois Retailers’ Occupation Tax. This type of transaction is not involved in this case.” (Italics as in Department’s brief.)
The third class of cases described in the Department’s brief are those in which the builder builds a home, upon land that he owns, at a time when he has no arrangement whatever for its resale. The fourth class is like the third, but includes those cases in which the builder has only an oral agreement, characterized by the Department as unenforceable, with the prospective purchaser. The contention of the Department as stated in its brief, is "that sales of building materials of these latter two classes result in the incidence of the Retailers’ Occupation Tax.”
The opinion of the court, however, has held that all four classes of transactions described by the Department. are taxable, despite the Department’s repeated concessions that the first two of them are not.. It has done so without having heard any argument whatsoever as to the first two classes, and without mentioning Material Service Corporation v. McKibbin, 380 Ill. 226, the basic case which for years has governed the taxability of these transactions. And although the opinion of the ..court obviously goes beyond the issues that the Department submitted for decision, the Department adopted new regulations that purport to subject all four classes "oDtransactions to the retailers’ occupatioñ tax.
The court’s opinion proceeds upon two grounds. One of them is that “In this case the lumber or other material, if it can be considered as having been bought for resale at all, was obviously bought for resale as real estate.’’/As to_the first two, classes of transactions it seems impossible to say that ¿he building contractor transfers anything as real estate. Byg hypothesis he owns neither the land on which the building is built, nor the building that he builds. His statutory lien is a far cry from ownership. Real property is Transf erred bv deed. and_the contractor can "not, an d nf course in fact _does not, convey by deed the title to real property that he does not own. I would have no quarrel with the proposition announced in the opinion if it were limited to the third and fourth classes, which were all that were before the court. But the opinion is not so limited, and_the Department has not so interpreted it.
/ The other ground upon which the opinion is based is that the building contractor “uses or consumes” the materials that go into the building. Back in 1941 the General Assembly did enact such a definition of “use or consumption,” applicable not only to building contractors but to all service occupations. But this definition was repealed in 1945, (Laws of 1945, p. 1278), and it has never been re-enacted. The text of this repealecTprovision, together with its history, which includes this court’s decision holding it unconstitutional, (Stolze Lumber Co. v. Stratton, 386 Ill. 334,) is set forth in Burrows Co. v. Hollingsworth, 415 Ill. 202, at 210.
The only other relevant legislative changes since 1945 show an approach that contradicts the position taken in the opinion.
In 1955 the General Assembly amended section 1 of the act by adding a provision “that any person who is engaged in a business which is not subject to the tax imposed by this Act because of involving * * * a construction contract to improve real estate, but who, in the course of conducting such business, transfers tangible personal property to users, or consumers in the finished form in which it was purchased, and which does not become real estate, under any provision of a construction contract * * * shall be considered to be engaged in the business of selling tangible personal property at retail to the extent of the value of the tangible personal property so transferred.” (Ill. Rev. Stat. 1959, chap. 120, par. 440.) This provision is still in effect. As the Department’s Regulations state, it refers to “gas or electric stoves, refrigerators, washing machines, portable ventilating units and other portable equipment of this kind.” Part of its significance here is that it shows that the General Assembly has considered the problem, and has singled out for taxability only transfers of portable equipment of the kind described. As to the many other kinds of materials and fixtures that are used in constructing a building, it made no change in the existing law, and the inference that no change was intended seems inescapable.
> But more important than any inferences, however clear, is" the fact that by this provision the General Assembly, has stated explicitly that the “users or consumers” are not the construction contractors, but the persons for whom the buildings are built and to whom the materials are transferred by the contractors in the course of performing their contracts. The opinion of the court imposes the tax upon those who supply materials to construction contractors, in the first two classes of cases described by the Department, on the ground that the construction contractors are the users or consumers of the building materials. It does not mention the fact that this position flatly contradicts the position that the legislature has taken on this point.
The final item of legislation that contradicts the court’s opinion was enacted in 1961. Construction contractors have often been described, both by the General Assembly and by this court, as persons engaged in a “service occupation.” The seventy-second General Assembly has enacted a “Service Occupation Tax Act” which seems clearly designed to" reach the first two classes of transactions described by the department. It imposes a tax “at the rate of 3% of. the cost price of all tangible personal property transferred by jaijL servicemen either in the form of tangible personal property or in the form of real estate as an incident to a ‘sale of services’, under any contract * * (72nd General Assembly, S.B. 558, sec. 3. Italics supplied.) .The legislature, however, has imposed its tax upon the construction .contractor, while the tax imposed by the court in this case falls upon the supplier.
Mr. Justice House concurs in this dissent.