APPEAL from the Circuit Court of Kane County; the Hon. NEIL E.
MAHONEY, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 29, 1972.
This is an appeal from a judgment of the circuit court of Kane County which enjoined the defendants, Kendall County and the Kendall County Board of Supervisors, from requiring the plaintiff, National Drag Racing Enterprises, Inc., to obtain a permit and pay a fee with respect to the races it conducts. The judgment also required Kendall County to deliver to the plaintiff the sum of $3700 representing permit fees paid by the plaintiff from April 1968 to April 1970. The appeal was taken originally to the Appellate Court, Second District, and by that court was transferred here.
The original action was filed in the circuit court of Kendall County. Thereafter, the plaintiff filed a motion seeking a change of venue from Kendall County on the ground that it could not obtain a fair and impartial trial in that county or from any judge sitting within that county. The affidavit in support of the motion recited that the plaintiff is the lessee and proprietor of a business operation known as the "Oswego Dragway," that members of the Kendall County Board of Supervisors and the sheriff of Kendall County had made public statements attributing "acts of vandalism or criminal acts" to patrons of the plaintiff's operation and had suggested that patrons of the operation had been before a named associate judge of the circuit court of Kendall County "as to criminal acts performed by them." The affidavit also stated that a member of the Kendall County zoning board had theretofore caused to be published in the "Joliet Circle," a newspaper of general circulation within Kendall County, various comments concerning the "noise, litter and vandalism" associated with the plaintiff's operation. The motion was allowed, and the case was transferred to the circuit court of Kane County and heard by a judge of that court.
The case turns upon the construction and the constitutionality of "An Act to provide for the issuance of permits by county boards for motor vehicle races and motor vehicle stunt events." (Ill. Rev. Stat. 1969, ch. 34, pars. 6101 and 6102.) That statute provides:
"Section 1. In counties having a population of 500,000 or less inhabitants, no person, other than a county fair association, state fair or other not for profit association or corporation, shall hold any motor vehicle race or motor vehicle stunt event unless he obtains a written permit to do so from the county board of such county wherein the race or event is to take place.
Section 2. Each county board shall fix a permit fee not to exceed $100 for all races and events held by a person, other than a county fair association, state fair or other not for profit association or corporation, on a single day. Each permit shall specify the day or days for which the permit is effective. Provided, however, that if the race or event for which such permit is issued, is rained out or postponed for other good cause shown, the permit shall be valid for use within the next 8 days of the date specified in the permit. No permit shall be issued unless the fee is fully paid in advance of issuance. The county board shall pay one-half of each fee into the county treasury and shall transfer the remainder to the road and bridge fund of the township or road district wherein the race or event takes place."
Acting under this statute Kendall County has fixed a fee of $100 for each day's permit. The plaintiff contends that the statute does not apply to the motor vehicle races which it conducts because they are conducted upon private property and do not violate the zoning ordinances of the county. In the alternative, the plaintiff asserts that the statute is invalid if it is construed to apply to its operations.
The races which the plaintiff conducts are run on parallel, paved strips. Vehicles are raced by classes or design, the object being to obtain the best clocked time. The plaintiff advertises to attract spectators and the costs and expenses of the business, as well as its profits, come from the paid admissions of the spectators.
The sheriff of Kendall County testified that on those Sundays on which drag races took place, he hired two additional deputies. He hired them because of complaints that he received that the "dragsters were trying out their cars on subdivisions or on the Plainfield blacktop. * * * We pinned it down that they were either coming to the dragstrip or going from the dragstrip." He also testified that he had talked to "some of the fellows at the dragstrip" and that they used county roads, blacktops, coming off the main highways to the plaintiff's operation. However, in response to a question by the attorney for the plaintiff, the sheriff testified that the problem that he had with the dragstrip was traffic "plus the fact that it's a prevention if something should break out in the dragstrip, I could never handle it alone with one man because of the population at the dragstrip. I hired 2 additional men to work."
The sheriff testified that on Sundays when the drag races were operating there were six to seven hundred cars, "maybe more," at the drag races. He said that they came in all morning until noon and the drag operations normally terminate for the day around 4:15-4:30. He testified that if there was a State police car at the corner of Highways 31 and 34, "we could maybe get most of the automobile traffic cleared in 45 minutes to an hour." In response to further questions by the plaintiff's attorney the sheriff testified that there were other businesses in Kendall County that would attract as many as 700 or 800 cars in the course of a week's time. The sheriff also said, however, that "the other users are not dragsters; they are family people." He further testified that the number of people going to the dragstrip who would use the Plainfield road was negligible compared to the number which would use Route 34, which is the only road that affords access to the property in question.
The owner of the property testified that he had operated the drag races before the present plaintiff took over. He testified that during that time he hired additional personnel to take care of the traffic problem created by the drag races. He did so because the sheriff was not doing it.
The trial judge found that the plaintiff's use of the property did not violate the county zoning ordinance, that "no part of the actual business venture of the plaintiff pertains to the use of highways or township roads or any roads whatsoever within Kendall County"; that "the statute does not expressly provide for any regulatory powers by the defendants over the business of the plaintiff, nor does it require the defendants to provide traffic officers for the regulation of vehicle traffic." He held that the requirement that the plaintiff pay a fee and obtain a permit is an unlawful application of the statute, and is "in fact an assessment and collection of a special and discriminatory tax prohibited to the defendants by the constitutions of the State of Illinois and of the United States." He therefore entered the order described above.
In this court the plaintiff's argument as to the non-applicability of the statutes is based upon the proposition that in the event of ambiguity a statute should be construed in such a way as to avoid constitutional issues. We find nothing in the language of the statute to suggest that it does not apply to operations conducted upon private property, nor do we find any other ambiguity. In express terms, section 1 prohibits any person other than "a county fair association, state fair or other not for profit association or corporation" from holding any motor vehicle race or motor vehicle stunt event unless he has obtained a permit from the county. Section 2 requires the county board to fix a permit fee not in excess of $100 for each day. It requires that each permit shall specify the day for which it is effective. It requires payment of the full fee, in advance, and provides that the county board shall pay one half of each fee ...