ORIGINAL PETITION for mandamus.
MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT.
An original mandamus action has been instituted in this court to compel the Secretary of State to issue motor vehicle licenses to resident citizens of Illinois without payment of a 2 per cent use tax on automobiles purchased by petitioners outside of Illinois. The issue presented is the constitutionality of the recently enacted Motor Vehicle Use Tax Act, effective August 1, 1953. Ill. Rev. Stat. 1953, chap. 120, par. 453.68 et seq.
The act is entitled, "An Act in relation to a tax upon the privilege of the use of motor vehicles in this State." Section 1 designates the act as the Motor Vehicle Use Tax Act. Section 2 defines certain terms, the principal of which are "Use" and "Purchase price." These definitions are:
"`Use' means the exercise by any person of any right or power over any new or used motor vehicle not previously titled in this State and not sold or transferred under any of the conditions enumerated in Section 4 of the `Uniform Motor Vehicle Anti-Theft Act,' approved May 11, 1933, as heretofore or hereafter amended, other than such use as is incidental to the sale of motor vehicles in the ordinary course of business by a person who is licensed under the `Retailers' Occupation Tax Act,' and other than the use of a motor vehicle by a person moving into Illinois who at the time of purchase or acquisition of such motor vehicle was a non-resident of Illinois and purchased or acquired such motor vehicle outside of Illinois and who has registered such motor vehicle in another state, and other than the use of a motor vehicle by a person having branches of business in Illinois and other states who makes an interbranch transfer of a motor vehicle theretofore registered in another state."
"`Purchase price' means the aggregate value in money of anything or things, paid or delivered, or promised to be paid or delivered, by a purchaser in the consummation and complete performance of the transaction by which a motor vehicle is purchased for use in this State, without any deduction therefrom on account of the cost of the motor vehicle sold, cost of materials used, labor or service cost, interest or discount paid, or any other expense whatsoever."
The tax imposed by section 3 is at the rate of 2 per cent of the purchase price of such motor vehicle and is in addition to all other occupation or privilege taxes. Section 4 in part provides that "Every person who purchases a motor vehicle for use in this State shall, at the time of applying for registration thereof, file with the Secretary a statement concerning the purchase of such motor vehicle and shall transmit with such statement the tax imposed by this Act," and further provides that "If the Secretary finds that the purchaser has made a proper statement of purchase and has remitted the proper amount of tax therewith, he shall approve such statement and pay the tax received by him into the General Revenue Fund in the State Treasury. If the Secretary finds that the purchaser has not made a proper statement of purchase or paid the proper amount of tax, he shall refuse to file such statement of purchase, and shall notify the purchaser of his refusal."
The Secretary of State has refused to issue a certificate of title or issue license plates for any automobile purchased outside of Illinois by a resident of Illinois unless the use tax based on the full purchase price accompanies the application for title and unless the statement of purchase is filled completely and filed with the application for certificate of title. The Secretary requires payment of 2 per cent of the full purchase price without any deduction for the value of traded-in property or for interest and finance charges; he does not require payment of the tax on motor vehicles purchased by Illinois residents in Illinois from Illinois dealers registered under the Illinois Retailers' Occupation Tax Act.
Section 4 of the Uniform Motor Vehicle Anti-Theft Act, (Ill. Rev. Stat. 1953, chap. 95 1/2, par. 77,) (referred to in the above statutory definition of "Use,") as amended, is as follows:
"(a) The application for a certificate of title properly sworn to shall be made upon the appropriate form furnished or approved by the Secretary of State and shall contain a full description of the motor vehicle including the trade name or the name of the maker, the engine and serial numbers or the vehicle identification number in lieu of the engine and serial numbers and any distinguishing marks thereon and whether the motor vehicle is new or used, together with a statement of the applicant's title and whether possession is held by right of title, lease, conditional sale, mortgage or other agreement, and of any interest in or lien or encumbrance upon said motor vehicle and the name and address of the person holding such interest, lien or encumbrance and the name and address of the person to whom the certificate of title shall be delivered and such other information as the Secretary of State may require, and every application shall be accompanied by a fee of fifty cents, which shall be in addition to any fee charged for the registration of such motor vehicle.
"An application for a certificate of title for a new motor vehicle shall be accompanied by the certificate prescribed in Section 3c.
"An application for a certificate of title for any motor vehicle must be accompanied by proof that any tax imposed pursuant to the `Motor Vehicle Use Tax Act,' has been paid. In the absence of such proof, no certificate of title shall be issued to such applicant.
"(b) Whenever application is made for a certificate of title for a motor vehicle for which a certificate of title has not previously been issued in this State, such application shall include a bill of sale or statement of transfer by the seller and of any lien retained by such seller. The sale or transfer of a motor vehicle for which a certificate of title has previously been issued in this State, or the sale or transfer of a new or used motor vehicle by a dealer duly registered with the Secretary of State as required by the laws of this State and duly enfranchised by a manufacturer of motor vehicles or by an authorized distributor of such manufacturer, or the sale or transfer of a used motor vehicle by a dealer duly licensed as provided in this Act, shall, in each such case, be prima facie evidence to the Secretary of State that the purchaser or transferee is the owner of such vehicle and legally entitled to make application for a certificate of title therefor; provided, that if the Secretary of State from examination of the application for a certificate of title for any such vehicle, or by other evidence available to him, is of the opinion that such applicant is not the owner of the vehicle, he shall not issue a certificate of title therefor but shall cause a thorough investigation to be made of the source and antecedents of such title and the right of such applicant to a certificate of title. Where application is made for a certificate of title for a new or used motor vehicle not previously titled in this State and not sold or transferred under any of the above enumerated conditions establishing a prima facie case of ownership in the purchaser or transferee, the Secretary of State shall not issue a certificate of title therefor, but shall cause a thorough investigation to be made of the source and antecedents of such title and the right of such applicant to a certificate of title.
"If, as a result of any investigation of title herein authorized, the Secretary of State is satisfied as to the validity of the title and ownership of the applicant and that any tax imposed pursuant to the `Motor Vehicle Use Tax Act' has been paid, he shall issue a certificate of title in accordance with the terms of this Act. The Secretary of State, in his discretion, may combine the application for a certificate of title with the application for the certificate of registration and with the statement of purchase required to be filed pursuant to the above cited Act."
Petitioners urge that (1) the title of the act is deceptive and in violation of section 13 of article IV of our State constitution; (2) the act is so vague as to be incomplete, as to be subject to capricious and arbitrary interpretation and application and, in violation of State and Federal constitutional requirements of separation of powers and due process; (3) the act violates the Federal constitution's interstate commerce clauses and (4) the act is not uniform as to definition of the class upon which ...