APPEAL from the Circuit Court of Rock Island County; the Hon.
GEORGE O. HEBEL, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 18, 1960.
This case involves the validity of an ordinance of the city of Rock Island prohibiting the use of pin-ball and horse-race machines and the nature of the unexpired licenses in existence at the date of the ordinance.
Separate actions were filed against defendant, the city of Rock Island, in the circuit court of Rock Island County by plaintiff, John Hagen, and by plaintiffs, Warren and Robert Hallgren. Both complaints sought a declaratory judgment invalidating the ordinance and an injunction restraining the city from enforcing its provisions against the plaintiffs. Temporary injunction issued in each case upon the filing of a bond approved by the court. By agreement of the parties, the cases were consolidated for hearing in the trial court after the city, by its respective answers, substantially denied the material allegations of the complaints.
The cause was heard upon a stipulation of facts and judgment was entered against the plaintiffs. The trial court adjudged that the ordinance was valid but continued the injunction in full force. Supersedeas bonds were filed and approved, and supersedeas order was duly entered. Plaintiffs appeal directly to this court, the trial judge having certified that the validity of a municipal ordinance is involved and that the public interest requires an appeal to this court.
The stipulated facts establish that plaintiff Hagen owned, distributed and serviced certain games or amusement devices designated as horse-race machines in places of public resort within the city; that these machines were not operated by coin, but were actuated by an electrical apparatus which mechanically directed a beacon of light around a course in the simulation of a horse race; and that the light mechanically stopped on a number or name of a horse marked on the machine.
Plaintiffs Warren and Robert Hallgren owned, distributed and serviced pin-ball machines for use in public places within the city. The operation of these respective businesses was profitable and, if prohibited, would result in financial loss to plaintiffs, at least to the extent of the expected profits.
The city of Rock Island issued licenses on these machines effective from May 1, 1958, through April 30, 1959. A license fee of $25 for each machine had been paid to the city either by plaintiffs or by the person or corporation in whose premises the machine had been placed. These licenses had not expired on July 28, 1958, the date the ordinance was enacted.
The pertinent provision of the ordinance of the city of Rock Island, which amended chapter 22 of its revised ordinances entitled "Games," reads:
"Section 5. It shall be unlawful for any person to keep or use in any place of public resort within the City any tables or implements for any game of bagatelle, pigeon-hole, pinball or horserace. The term, `bagatelle, pigeon-hole or pinball' as used in this section shall mean a game played with any number of balls or spheres upon a table or board having holes, pockets or cups into which such balls or spheres may drop or become lodged and having arches, pins and springs, or any of them, to control, deflect or impede the direction or speed of the balls or spheres put in motion by the player. The term horserace device includes mechanically simulated races whereby a beacon of light travels around a course and mechanically stops on a number or name of horse marked on the machine.
"Section 6: In the event a license fee has been paid for any such machine for the fiscal year, 1958, the owner thereof, shall be entitled to a monthly pro rata return of the license fee paid."
The amendatory ordinance contained the usual provisions with respect to partial invalidity, repeal of inconsistent enactments and effective date. It is not disputed that the ordinance, if otherwise valid, was duly passed, approved and published.
Plaintiffs contend that the city had no authority to prohibit the keeping or use of the so-called horse-race machines in places of public resort. It is conceded that the authorization for such an ordinance, if any existed, must be found in the provisions of section 23-56, of article 23 of the Revised Cities and Villages Act. That section provides, among other things, that a municipality has power: "To license, tax, regulate, or prohibit pin, ball, or bowling alleys, billiard, bagatelle, pigeon-hole, pool, or any other tables or implements kept for a similar purpose in any place of public resort." Ill. Rev. Stat. 1957, chap. 24, par. 23-56.
Plaintiffs argue that the statute authorizes a municipality to license, tax, regulate or prohibit only those games or devices which involve pins, balls or a combination of both. Their argument is predicated upon an assertion that all of the devices particularly referred to in the statute fall within that limited category and that the provision "any other tables or implements kept for a similar ...