APPEAL from the Superior Court of Cook County; the Hon. JOHN
F. BOLTON, Judge, presiding.
MR. CHIEF JUSTICE THOMPSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 20, 1950.
This is an appeal from a decree of the superior court of Cook County dismissing for want of equity the second amended complaint of the plaintiffs, appellants here, who are operators of bowling alleys, billiard parlors and pool-rooms, seeking to enjoin the enforcement against them of an ordinance of the city of Chicago levying a tax of 3 per cent on the gross receipts from admission fees or other charges to witness or participate in "amusements," which are defined by section 1 of said ordinance to include "bowling, billiard and pool games." The trial court heard the case upon the second amended complaint of plaintiffs and intervenors, the answer of the defendants thereto, and the motion of plaintiffs to strike the answer and for judgment. A decree was entered denying and overruling plaintiffs' motion to strike the answer and for judgment, and the plaintiffs and intervenors having elected to stand by said motion, the court thereupon dismissed the second amended complaint and the suit of plaintiffs and intervenors for want of equity at plaintiffs' costs. The trial court certified as to the validity of an ordinance being involved and that public interest requires an appeal to this court.
The appellants in the aggregate operate 125 establishments containing approximately 2400 alleys for bowling. Many of the appellants are also engaged in the business of operating billiard facilities in the city of Chicago.
Chapter 104, Municipal Code of Chicago, provides: "104-1. Definitions) As used in this ordinance: The word `amusement' means, (1) any theatrical, dramatic, musical or spectacular performance, motion picture show, flower, poultry or animal show, animal act, circus, rodeo, athletic contest, sport, game or similar exhibition for public entertainment, including, without being limited to, boxing, wrestling, skating, dancing, swimming, racing or riding on animal or vehicles, baseball, basketball, softball, football, tennis, golf, hockey, track and field games, bowling, billiard and pool games; (2) any entertainment offered for public participation, including, without being limited to, dancing, carnival, amusement park rides and games, bowling, billiard and pool games.
"104-2. License tax.) A license tax is imposed upon all amusements within the city, excepting automatic amusement machines, of an amount equal to three percent of the gross receipts from admission fees or other charges, exclusive of federal taxes, to witness or to participate in such amusements. It is unlawful for any person to produce, present or conduct any such amusements, for gain or profit, without payment of the tax."
"104-8. Penalty.) Any person violating any of the provisions of this chapter shall be fined not less than fifty dollars nor more than two hundred dollars for each offense and each day such violation shall continue shall be regarded as a separate offense."
Chapter 104.1, Municipal Code of Chicago, in part provides:
"104.1-6. Guaranty.) Before any license is issued the applicant shall execute a written undertaking conditioned that the taxes imposed upon any amusement at the licensed premises will be paid in the manner and at the times provided in chapter 104 of this code."
The second amended complaint charged that the participants in the game of bowling pay to the appellants, for the use of certain facilities, fees, and that no fees or charges are made to the public or to any of the participants for admission to the places where the bowling alleys or billiard tables are located, nor is there any charge made to the public to witness the playing of the respective games by the participants.
The defendants, appellees here, do not, by their answer, deny the facts as set forth, except to deny the charge that the ordinance is invalid and unconstitutional. The answer further alleged that bowling and billiards are amusements within the commonly accepted meaning of the word and fall within the definition as used within the ordinance.
It is first urged by appellants that chapter 104 of the Municipal Code of Chicago is so vague and unintelligible in defining the subject or object of taxation or the persons taxed as to be inoperative and void. This chapter, as amended, imposes a tax upon many defined amusements and makes it unlawful for any person to conduct any such amusement for gain or profit without payment of the tax. It is urged that the phrase "entertainment offered for public participation," shown in the second portion of the definition, is a contradiction in terms, insofar as it affects bowling, billiard and pool games engaged in as a participating amusement only; that the activity of public participation is vague and unintelligible when applied in the case of bowling as it refers to amusement, on the ground that participants in those games are provided merely with space or facilities in or upon which they may engage in the game. In other words, it is contended that no entertainment or diversion is offered in the game of pure participating activities, but merely the facilities are put to use by the participants. It is urged that it is impossible to determine whether the tax is placed on the facilities or equipment, or upon the playing of the game.
It is to be observed that section 23-54 of the Revised Cities and Villages Act (Ill. Rev. Stat. 1947, chap. 24, par. 23-54,) authorizes the corporate authorities of a municipality "To * * * tax * * * theatricals and other exhibitions, shows, and amusements; * * *." In connection with this authority is to be read section 104.1 of chapter 104 of the Municipal Code, which provides that the word "amusement" means "* * * any entertainment offered for public participation, including, without being limited to, dancing, carnival, amusement park rides and games, bowling, billiard and pool games."
It is argued by appellants that under the ordinance it is not such an amusement as was intended under section 23-54 of the Revised Cities and Villages Act, and that it was intended under the act to refer to the occupation of conducting, maintaining, offering or presenting for gain by visual or auditory perception for amusement by those who witness or hear the entertainment; that this being an entertainment offered for public participation does not come within the authority granted by section 23-54 of the Revised Cities and Villages Act. It is urged that, under the doctrine of ejusdem generis, when a general word follows an enumeration of particular things, such word must be made to include only such things or objects as are of the same kind as those specifically enumerated, and that the word "amusement," when used together with theatrical and other exhibitions and shows, must refer to amusement of a similar nature as exhibitions, shows and theatricals presented and to be enjoyed by visual or auditory perception. In this connection the case of Condon v. ...