APPEAL from the Circuit Court of Du Page County; the Hon.
PHILIP F. LOCKE, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The defendant, Village of Willowbrook, a non-home-rule municipality, adopted an ordinance entitled, "Amusement Tax on Indoor Tennis Clubs" whereby the Village attempted to levy a tax equal to 6% of the gross receipts from fees and charges paid by persons for the use of indoor tennis courts within the corporate limits of the Village. The plaintiff corporation, which operates an indoor tennis club within the defendant Village, instituted a suit for declaratory and injunctive relief, seeking to have the ordinance declared invalid and to have the collection of the tax imposed by that ordinance enjoined. The trial court granted plaintiff's motion for summary judgment and entered an order declaring said ordinance invalid and void. Defendant appeals.
The defendant's position on appeal is that its ordinance is a valid exercise of the power to tax amusements granted to municipalities by section 11-42-5 of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, § 11-42-5) and that the ordinance is not otherwise invalid because it is based upon a reasonable classification. Section 11-42-5 provides as follows:
"§ 11-42-5. The corporate authorities of each municipality may license, tax, regulate, or prohibit hawkers, peddlers, pawnbrokers, itinerant merchants, transient vendors of merchandise, theatricals and other exhibitions, shows, and amusements and may license, tax, and regulate all places for eating or amusement."
The plaintiff's position on appeal is that the power of taxation granted by section 11-42-5 cannot be extended beyond the limits of the police power. Stated otherwise, plaintiff contends that a municipality cannot impose a tax under the authority of section 11-42-5 over that which they cannot regulate. Plaintiff goes on to argue that indoor tennis clubs are not a proper subject for the exercise of the police power, and, as a result, the instant ordinance is beyond the authority of the defendant Village. Plaintiff's principal authority for its interpretation of section 11-42-5 and its applicability to a tax on tennis clubs is Condon v. Village of Forest Park (1917), 278 Ill. 218, 115 N.E. 825. Plaintiff makes the additional argument that the instant ordinance is also invalid because it is based upon an unreasonable classification in violation of the Illinois Constitution.
In our view, plaintiff's reliance upon Condon for its interpretation of section 11-42-5 is misplaced. We find that several supreme court cases which have interpreted predecessor sections to the present section 11-42-5, including Condon, have found that by this section the legislature intended to confer upon municipalities two separate and distinct powers one being the power to tax for the purpose of raising revenue and the second being the power to tax for the purpose of regulation which may be exercised either separately or in combination. Since the instant ordinance is designed solely as a revenue-raising measure as it contains no regulatory features, it may be sustained under section 11-42-5 if the subject to the tax, indoor tennis clubs, comes within the meaning of the term "amusement" as defined for purposes of that section.
In Metropolis Theater Co. v. City of Chicago (1910), 246 Ill. 20, 92 N.E. 597, the supreme court considered the validity of an ordinance licensing theaters by class enacted by the City of Chicago pursuant to a predecessor of the statute involved in the present case. The court upheld the validity of the ordinance and in so doing rejected the contention that the license fee was excessive because it exceeded the amount that the City would have to spend for inspection and police supervision of the theaters. In rejecting this argument, the court stated:
"If the ordinance had been passed under the power merely to regulate theaters this argument would be entitled to serious consideration. But such is not the case here. The ordinance may be sustainable under the taxing power alone, without reference to its reasonableness as a regulatory measure." (Emphasis added.) 246 Ill. 20, 24, 92 N.E. 597, 599.
In Condon v. Village of Forest Park, the case upon which plaintiff principally relies, the supreme court was called upon to pass on the validity of an ordinance imposing a $750-per-year license fee on golf courses. This ordinance was enacted by the Village of Forest Park pursuant to the same statute that was involved in Metropolis. The supreme court began its analysis by stating the issue to be decided in the case as follows:
"The question here is whether this ordinance is valid either as an exercise of the police power or the power of taxation granted to municipalities by the paragraph in question." (Emphasis added.) 278 Ill. 218, 223, 115 N.E. 825, 827.)
The court then found the ordinance in question to be invalid because first, it found that golf was not a proper subject for the exercise of the police power and second, because it found that golf was not an "amusement" within the meaning of the statute under which the Village sought to uphold the validity of the ordinance. The court found that golf was not a proper subject for the exercise of the police power in the following language:
"The game of golf is a healthful and harmless recreation of the same class as lawn tennis and other like games, which do not attract crowds or tend to disorder or call for police supervision or regulation. It has never been known to affect in any injurious way the public health, order, safety, or morals. The fact that the game has attractions which induce players to practice it does not change its character to an amusement or entertainment provided for the public. It is not a subject for the exercise of the police power." 278 Ill. 218, 224-25, 115 N.E. 825, 828.)
The court stated its conclusion that golf was not an "amusement" within the meaning of the paragraph in question in the following language:
"The paragraph specifies theatricals, followed by the words `and other exhibitions, shows and amusements,' and in such a case the general words of description are limited to things of the same class or nature as those specified. Golf, lawn tennis, hockey, and other like games bear no likeness to public shows and amusements of the same nature as theatricals, and therefore it cannot be said that the ...