APPEAL from the Circuit Court of Cook County; the Hon. HARRY
M. FISHER, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 17, 1951.
This is an appeal from a judgment of the circuit court of Cook County in favor of the Director of the Department of Revenue of the State of Illinois, hereinafter referred to as defendant, whereby the court declared that the Automatic Voting Machine Corporation, hereinafter referred to as plaintiff, is, and has been at the time of each and every sale of voting machines made by it to the election commission of the city of Chicago, engaged in the business of selling tangible personal property at retail in the State of Illinois; that the company is under a duty to apply for and receive a certificate of registration under the Retailers' Occupation Tax Act; that the company is under the duty to file tax returns under that act; and that the company is under a duty to pay the occupation tax of the State of Illinois on the sales of voting machines to the board of election commissioners of the city of Chicago.
The cause arose from a complaint filed by the plaintiff, wherein it asked for a declaratory judgment that the sales of the plaintiff to the board of election commissioners of the city of Chicago did not constitute the occupation of selling tangible personal property at retail in the State of Illinois, subjecting the plaintiff to the Retailers' Occupation Tax Act. (Ill. Rev. Stat. 1949, chap. 120, par. 440, et seq.) The second count of this complaint provided for the recovery of sums paid as such tax if the court found for the plaintiff under the first count. This second count of the complaint is undisposed of at the present time.
The facts, in effect, were agreed upon at a pretrial conference between the parties. There seems to be no basic dispute as to the facts.
The plaintiff is a Delaware corporation and has its only offices and factory in Jamestown, New York. It manufactures, sells and deals in voting machines as its only stock in trade. It has no office, warehouse, building or structure in Illinois and has no phone listing at any place in Illinois. During the course of the transactions involved, plaintiff became registered in Illinois as a foreign corporation on April 29, 1948. It, however, keeps all its records in New York, maintains its billing department in New York, and all payments set forth in this cause were made to the plaintiff in New York.
One Griffen was the sales agent of the plaintiff during the transactions here. He is a resident of New York and when in Chicago lives in hotels on a daily basis. By his contract with the plaintiff corporation, he engages to promote sales, supervise employees in the installation of machinery and to instruct city officials and the public in the use of voting machines. By this same employment contract, he has no power to bind plaintiff in any way and all promotion undertaken by him is in the company name. He was assisted in Chicago on the sales in question by one Senninger, who had the same type of employment contract as Griffen.
Prior to January 16, 1948, the plaintiff had 40 voting machines leased to the board of election commissioners of the city of Chicago, under a rental contract. These 40 machines leased under the aforesaid agreement were included in a subsequent sale of 450 machines to the commission. This first sale arose out of an invitation of the board of election commissioners for sealed bids for 410 electric and 40 manual voting machines, which invitation bore date of January 16, 1948, and the bids in reply to which had to be filed on or before January 23, 1948.
The invitation, like all others to follow, required evidence of ability to manufacture and of financial ability, the submission with the bid of a certified check in a specified amount, and the execution of a contract and the furnishing of a bond "in an amount to be determined later."
The plaintiff received the invitation in New York by mail. Officers of the plaintiff there prepared and signed a bid which was then given to Griffen for delivery to the commission. Griffen delivered this bid in person in Chicago on January 23. On February 20, 1948, the board of election commissioners of the city of Chicago entered into a resolution whereby it was ordered that a "contract be awarded" to the plaintiff for the purchase of such machines. The board of election commissioners prepared a written contract dated February 21, had it signed and executed in Chicago by the proper officials and then sent it to New York, where it was signed and executed by the proper officials of the company. The contract provided the title to the goods was to pass in Chicago, and the company has complied with the contract, including the delivery of the bond specified in the contract.
Subsequently, on September 22, 1948, the board of election commissioners sought bids for 1500 more machines, and the company received such invitation to bid in New York by mail as it had in the first instance. A bid was prepared in New York and mailed to the commission, whereupon the commission passed a resolution that a "contract be awarded" to the plaintiff. Again, the commission prepared a contract dated October 2, 1948, which was executed in Chicago by the commission and then forwarded by it to New York, where it was executed by the proper officials of the plaintiff company.
On June 17, 1949, the commission again invited bids, this time for 2,000 machines, which bids had to be filed prior to June 24. The plaintiff again received this invitation to bid in New York, and there prepared its bid. This bid again was delivered by Griffen in Chicago and receipt of the bid was followed by the same type of resolution as before, with the same type of contract and form of execution following.
Subsequent to the delivery of the machines, or part of them, under the foregoing contracts, the company furnished sufficient representatives to install and place the machines and to assist in the preparation of ballots and the use of the machines at election time. These representatives were present at elections and did all things to assist the board of election commissioners to place the machines in proper operation. This work was done under the supervision of Griffen, but all of these representatives were sent to Chicago from New York and returned there upon the conclusion of the work in progress. The machines were manufactured in New York and were delivered to Chicago from New York by truck.
Contentions of both parties present the sole question as to whether this transaction makes the plaintiff subject to the payment of retailers' ...