Appeal by plaintiff from the Circuit Court of Cook county; the
Hon. BENJAMIN EPSTEIN, Judge, presiding. Heard in the second
division of this court for the first district at the December
term, 1952. Decree affirmed. Opinion filed April 14, 1953.
Rehearing denied May 1, 1953. Released for publication May 4,
MR. PRESIDING JUSTICE ROBSON DELIVERED THE OPINION OF THE COURT.
Rehearing denied May 1, 1953
Plaintiff filed his complaint in equity to enjoin the enforcement of an ordinance of the Village of River Forest alleging that it violated both the federal and state constitutions, and further that the Village had no power to enact the ordinance, which prohibits the operation of automatic coin-operated phonographs. The ordinance, which was adopted on October 17, 1949, reads as follows:
"Section 40. Coin operated amusement devices, juke boxes, etc. prohibited. Penalty.
"(a) Devices prohibited. It shall be unlawful for any person to keep or use for gain or public use within the Village of River Forest any amusement device the operation of which is governed or controlled by the deposit of a coin or token. The term `amusement device,' the operation of which is governed or controlled by the deposit of a coin or token, shall include any phonograph, piano player, music box, juke box or other instrument or device capable of producing or reproducing any vocal or instrumental sounds, which is governed or controlled by the deposit of a coin or token.
"(b) Penalty. Any person who shall violate the provisions of this Section shall be fined not less than ten dollars nor more than two hundred dollars for each offense, and each day that a violation continues shall constitute a separate offense.
"(c) Seizure. It is hereby made the duty of every policeman to seize any device kept or used in violation of this Section. Any person obstructing or resisting any policeman in the performance of any act authorized by this Section shall be fined not less than twenty-five dollars nor more than two hundred dollars for each offense."
The trial court entered a decree upholding the validity of Paragraphs A and B, decreeing that Paragraph C was invalid and dismissed the complaint. Plaintiff appealed to the Supreme Court. The appeal was transferred to this court because there was no certification by the trial court that the public interest required a direct appeal. Ill. Rev. Stat. 1951, chap. 110, par. 199, sec. 75 [Jones Ill. Stats. Ann. 104.075].
Defendants contend in their additional brief filed in this court that the only substantial questions raised by plaintiff are attacks on the constitutionality of the ordinance and that this court does not have jurisdiction to decide such questions. An examination of the briefs and record filed by plaintiff indicates that certain contentions raised apply to the validity of the ordinance. In the case of City of Greenville v. Nowlan, 279 Ill. App. 311, it was held that where the trial judge did not certify that the public interest required a direct appeal to the Supreme Court, the Appellate Court could decide the question of the validity of the ordinance. The decision in the City of Greenville case is conclusive and this court has the power to decide the question of the validity of the ordinance in question.
To properly understand the issues we must summarize the pleadings. The complaint, as amended, alleges that plaintiff is engaged in operating coin-operated music boxes used for producing recorded music of artistic merit; that plaintiff has invested great sums of money in the business; that he enjoys and would enjoy substantial profit if it were not for defendants' unlawful acts; that prior to October 17, 1949, music boxes were provided to certain owners of restaurants in River Forest as a form of entertainment; that plaintiff has never furnished any record of a song that would be harmful to the public safety or morals or health; that the machines are so designed that the music is heard only within the place of business where installed; that at divers times after October 17, 1949 (the date of the adoption of the ordinance), police officers of the defendant Village have notified plaintiff and his lessees that he must cease operation of his music boxes or they would seize and confiscate the music boxes; that plaintiff's business in said Village has been destroyed and he has been deprived of his profits and suffered irreparable damage; that the ordinance is not within the authority granted to cities and villages; that plaintiff is without adequate remedy at law; that plaintiff needs an injunction writ to restrain the seizure of his property or the interference with his operation and other relief.
To the complaint defendants filed an answer and motion to dismiss. They allege that the plaintiff has no cause of action in equity; that he is not a resident or engaged in business in River Forest; that he has an adequate remedy at law and that the ordinance is valid. They also allege that River Forest is largely a residential community, containing large areas devoted to parks and schools; that the business area is limited and no intoxicating liquor is sold, nor is there any theater or bowling alley or billiard parlor in the Village; that it is well known that coin-operated music boxes tend to disturb the peace. The case was referred to a master in chancery.
The proof before the master substantiates the factual allegations of plaintiff's complaint. The master in his report found that the ordinance was a valid exercise of police power of defendant Village; that the plaintiff had an adequate remedy at law and that the loss of profits did not constitute an irreparable injury that could not be compensated for by money damages. Plaintiff filed his objections to the master's report, which stood as exceptions.
After hearing the argument on the exceptions, the trial court held that it would take jurisdiction to determine the validity of the ordinance in question; that the ordinance as far as Paragraphs A and B were concerned was a valid exercise of power by the Village; that Paragraph C thereof was invalid and unconstitutional; that the provisions of Paragraph C were separable from the other portions of the ordinance which were a valid exercise of the powers of the Village of River Forest, and that the plaintiff was not entitled to an injunction.
Plaintiff assigns errors and defendants' cross-errors, a part of which involved federal and state constitutional questions, which this court cannot consider, but it can consider the question as to whether or not plaintiff is entitled to an injunction restraining the defendants from the enforcement of the ordinance ...