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D. Gottlieb & Co. v. City of Chicago

OPINION FILED OCTOBER 25, 1950

D. GOTTLIEB AND COMPANY, APPELLEE,

v.

CITY OF CHICAGO ET AL., APPELLANTS.



Interlocutory appeal by defendants from the Circuit Court of Cook county; the Hon. E.J. SCHNACKENBERG, Judge, presiding. Heard in the second division of this court for the first district at the April term, 1950. Temporary injunctional order reversed. Opinion filed October 25, 1950. Released for publication March 21, 1951.

MR. JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT.

Upon plaintiff's motion for an injunction pendente lite as prayed in its verified complaint as amended and supplemented, the following order was entered by the trial court:

"1. That the defendants . . . and their successors in office and their servants, agents, and attorneys, and all police officers of the City of Chicago be and each of them hereby is enjoined and restrained from seizing, confiscating, destroying or otherwise interfering with the operation, keeping, or use of the Bowlette machine manufactured by D. Gottlieb & Co., plaintiff herein, in any place of public resort in the City of Chicago, until the further order of this court; and

"2. That the People's Writ of Injunction issue, restraining said defendants as above set forth in paragraph numbered 1 herein for good cause shown that said injunction issue forthwith without the necessity of filing a plaintiff bond."

Defendants filed an interlocutory appeal from that order.

The complaint alleges that plaintiff is a corporation engaged in business in Chicago, Cook County, Illinois, as a manufacturer and distributor of an automatic amusement machine known as "Bowlette"; that defendant City of Chicago is a municipal corporation, defendant Kennelly is Mayor of said City, defendant Prendergast is the Commissioner of Police of said City, defendant William T. Prendergast is the City Collector of said City and is in charge of processing applications for licenses, and defendant Schreiber is the City Clerk of said City and is in charge of licenses and in particular, under Section 104-5 of the Municipal Code of Chicago, of issuing licenses for automatic amusement machines; that plaintiff's amusement machine is constructed for use as a miniature shuffleboard and bowling game (here follows a description of the machine and the manner in which it is played); that said machine is neither a clock, tape machine, slot machine, or other machine or device for the reception of money or chance, or upon the action of which money is staked, hazarded, paid, won or lost, nor is it a bagatelle or pigeonhole game, as defined in Section 193-26 of the Municipal Code of Chicago; that said Collector wrongfully refuses to issue licenses for the aforesaid machines, stating that said machines could not be licensed because they were "bagatelles," in violation of Section 193-26 of the Municipal Code of Chicago, and "slot machines," in violation of the Criminal Code of the State of Illinois and Section 191-5 of the Municipal Code of Chicago; that it would be futile to make application for licenses for Bowlette machines with said Collector; that plaintiff has sold a large number of said Bowlette machines for distribution in places of public resort, for the amusement of the public, and many of said machines have been so distributed and placed in places of public resort for the amusement of the public; that defendants have threatened to arrest the proprietors of the places where said machines are located for violating Section 104-5 of the Municipal Code of Chicage, which provides: "It shall be unlawful for any person to install, keep, maintain or use, or permit the installation, keeping, maintenance or use upon his premises of any automatic amusement machine upon which such tax has not been paid and for which a license has not been issued for the current year"; that defendants have further threatened and now threaten to seize and destroy, pursuant to Section 193-26 of the Municipal Code of Chicago, which provides for the seizure and destruction of "bagatelles" and "pigeonholes," the aforesaid Bowlette machines and such other Bowlette machines as may be installed in any place of public resort; that on March 22, 1950, a Bowlette machine was seized, confiscated and removed from its location in Frank's Tavern, West North avenue, Chicago, by a police officer of said City, agent of certain defendants, and taken into custody; that the police officer who seized said machine stated that it was a pinball machine in violation of the "bagatelle" ordinance; that the seizure and destruction of the aforesaid machines by defendants and their agents or employees, and the arrest of the proprietors of the places of public resort where the machines are placed, will cause irreparable injury and damage to plaintiff; that plaintiff has a considerable capital investment, owns its building and machinery, which are substantial in nature, and employs approximately 400 persons; that since March 1, 1950, plaintiff has been producing approximately 125 Bowlette machines per day; that interference with the operation of said machines by defendants and confiscation of said machines when on location result in great damage to plaintiff, in that such action has disrupted plaintiff's markets and sales, causing plaintiff to face grave financial losses; that plaintiff has no adequate remedy at law to redress the loss complained of.

Plaintiff prays: That a mandatory injunction issue, compelling and requiring defendants to accept proper applications for licenses for the Bowlette machines, and upon tender of the license tax, to issue licenses to the qualified applicants for the aforesaid Bowlette machines; that defendants and police officers acting for and on behalf of said City, and each of them, be restrained and enjoined from seizing, confiscating, destroying, or otherwise interfering with the operation, keeping, or use, in any place of public resort within the City of Chicago, of any of the aforesaid Bowlette machines; "that pending the determination of this action this court issue an injunction, pendente lite, prior to answer, restraining and enjoining the said defendants, their agents, servants and employees, from seizing, confiscating, destroying, or otherwise interfering with the operation, keeping or use, in any place of public resort within the City of Chicago, of any of the aforesaid Bowlette machines until the further order of this court." The temporary injunctional order entered followed, in substance, the prayer of the complaint.

During the hearing of the motion of plaintiff, it filed an amendment and supplement to the complaint which alleges that on March 28, 1950, it applied for a license for a Bowlette at the office of the City Collector and tendered $25 in payment of the fee, but was refused a license on the ground that the Bowlette was a bagatelle or pigeonhole device.

Defendants have filed and argued a number of points in support of their contention that the temporary injunctional order entered should be reversed, but in our view of this appeal we need only consider point I, viz., that "in cases involving a license, our courts have held that the availability of mandamus will bar a suit for injunction"; that "the chancellor erred in granting the temporary injunction because the plaintiff had an adequate remedy at law" — mandamus. Defendants state: "We submit that for the purposes of this appeal the legality or illegality of the Bowlette is not in issue. Our case is based on the main premise that equity does not have jurisdiction over the subject matter of the instant case and the legality of the Bowlette is not in issue." After a careful consideration of point I we have reached the conclusion that the point is a meritorious one.

In Film Classics of Illinois v. Dever, 234 Ill. App. 614, cited by defendants in support of their position, the First Division of this court had before it a case where an interlocutory injunction was entered restraining the mayor and chief of police of the City of Chicago from interfering with the exhibition and distribution of a motion picture film. The bill alleged that the complainants were owners of a motion picture entitled "Three Women," and that they had entered into a contract for the exhibition of the picture in certain theaters in Chicago; that they tried to get a permit to exhibit said film, in conformity with an ordinance of the City, but that they were refused a permit, and that serious financial injury and irreparable damage would accrue to them if the injunction was not granted. The City filed a demurrer that questioned the jurisdiction of the chancery court in the proceeding; the demurrer was overruled and the interlocutory injunction prayed for was granted. The Appellate court, in an opinion written by MR. JUSTICE McSURELY, states (pp. 616, 617):

"It is the established rule in this State that when the remedy of mandamus is available a court of equity has no jurisdiction and that allegations of irreparable injury and hardship do not in any wise change this rule. Among the cases holding that mandamus is the proper remedy in a case like this are Grace Missionary Church v. City of Zion, 300 Ill. 513; Hamilton v. City of Chicago, 227 Ill. App. 291; Pittsburg, Ft. W. & C. Ry. Co. v. Chicago, 159 Ill. 369; Klinesmith v. Harrison, 18 Ill. App. 467; City of Chicago v. O'Hare, 124 Ill. App. 290; Chicago, D. & V.R. Co. v. St. Anne, 101 Ill. 151; Vitagraph Co. of America v. City of Chicago, 209 Ill. App. 591.

"It is conceded that the exhibition of motion pictures is subject to police regulation and that the ordinance requiring a permit is valid. Complainants cannot nullify the ordinance by a chancery proceeding seeking to prevent the officers from enforcing it. If the administrative officers do not properly exercise their functions under the ordinance, the remedy is by mandamus.

"Complainants stress the large amount of money invested in the picture and the injury they will suffer if the City refuses a permit. A similar plea was made in Grace Missionary Church v. City of Zion, 300 Ill. 513, where the court specifically holds that the fact that the withholding of the permit might result in serious damages furnishes no ground for the interposition of a court of equity."

Defendants also cite Rockford Amusement Co. v. Baldwin, 252 Ill. App. 1, where an injunction was entered in the trial court restraining the sheriff and board of supervisors of Winnebago county from interfering with the complainant's business of conducting a dance hall and road house. It appeared that the complainant had secured a judgment awarding a writ of mandamus directing the board of supervisors to issue a license to maintain the dance hall and road house. An appeal was taken in the mandamus case and during the pendency of the appeal the injunction in question was secured. The right to the injunction was based upon a claim of irreparable injury resulting from a loss of anticipated income from the operation of the business pending the appeal in the mandamus proceeding. The ...


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