Appeal from the Superior Court of Cook County; the Hon. DONALD
S. McKINLAY, Judge, presiding. Reversed.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Finding that plaintiff had violated one of its rules (Rule 20), the Illinois Liquor Control Commission suspended plaintiff's retail liquor license. Upon review, the Superior Court reversed the Commission's action, on the ground that Rule 20 was an unreasonable exercise of its rule-making authority and, therefore, invalid. The Commission appealed to the Supreme Court which transferred the case to this court. *fn1
The authority of the Commission, as set forth in the Liquor Control Act, includes the following:
The State commission shall have the following powers, functions and duties:
(1) To receive applications and to issue licenses to . . . retailers, . . ., in accordance with the provisions of this Act, and to suspend or revoke such licenses upon the State Commission's determination, upon notice after hearing, that a licensee has violated any provision of this Act or any rule or regulation issued pursuant thereto and in effect for thirty (30) days prior to such violation.
(2) To adopt such rules and regulations consistent with the provisions of this Act which shall be necessary to carry on its functions and duties to the end that the health, safety and welfare of the People of the State of Illinois shall be protected and temperance in the consumption of alcoholic liquors shall be fostered and promoted and to distribute copies of such rules and regulations to all licensees affected thereby. (Ill Rev Stats, c 43, § 108.)
Proper construction of this section requires us to consider it in the light of the first section of the Act which provides:
This Act shall be liberally construed, to the end that the health, safety and welfare of the People of the State of Illinois shall be protected and temperance in the consumption of alcoholic liquors shall be fostered and promoted by sound and careful control and regulation of the manufacture, sale and distribution of alcoholic liquors. (Ill Rev Stats, c 43, § 94.)
The rule in question reads as follows:
No licensee of the Commission shall purchase or possess a Federal Occupational Wagering stamp or the $250.00 Annual Occupational Gaming Device stamp, issued by the Internal Revenue authorities of the United States, . . . for the premises licensed by the Commission. Violation of this rule shall be grounds for revocation or suspension of any license issued by the Commission as provided under Article III, Section 12, Subsection 1 of the Illinois Liquor Control Act. *fn2
Evidence adduced at a hearing before the Commission showed that on January 25, 1962 plaintiff purchased a $250 Annual Occupational Gaming Device stamp in direct violation of the rule. After notice, complaint, citation, and hearing by defendant, the retail liquor license of plaintiff was suspended for five days, and complaint to review this administrative decision was filed in the Superior Court. After hearing arguments of counsel, that court reversed the suspension order on the sole ground, as stated by the court, that "Rule 20 of the Illinois Liquor Control Commission is unreasonable, arbitrary, unjust and not a reasonable exercise of the authority of the Commission and said rule is therefore invalid." This appeal followed.
It is accepted as beyond the contentions of this case that it is properly within the scope of the Commission's power to suspend or revoke a license when gambling is conducted on licensed premises, or when a licensee is found in possession of a so-called "slot machine" which, since enactment of a statute in 1895, has been declared contraband as a gambling device. (Ill Rev Stats, c 38, §§ 28-2, 28-5; Commission Rule 3.)
The device in question, however, is not the storied "slot machine," but a newer type of mechanical device known as a pinball machine. In 1942 the pinball type of machine was held to be a gambling device within the definition of the statute referred to above. (People v. One Pinball Mach., 316 Ill. App. 161, 44 N.E.2d 950; Petition for leave to appeal denied, 321 Ill App XIII.) Thereafter, the legislature amended the statute by providing that a coin-in-the-slot operated mechanical device which rewards the player with only a right to replay is not to be considered a gambling device, and any right to replay so obtained is not to be considered a valuable thing, within the meaning of the Act. *fn3 (Laws of 1953, p 929, c 38, §§ 341, 342.)
In People v. One Mechanical Device, 11 Ill.2d 151, 142 N.E.2d 98 (1957), it was held that the specific exemption of the amendment applied to a pinball machine of the same general type as the one involved in the instant case, and that the machine was, therefore, not a gambling device per se. The court further held that "since there is no evidence in the record that any money or anything else of value was ever staked, hazarded, bet, ...