Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Du Page County;
the Hon. Phillip F. Locke, Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Defendant Village of Willowbrook, a non-home-rule municipality, adopted an ordinance entitled "Amusement Tax on Indoor Tennis Clubs" which imposed a tax of 6% on the gross receipts from the fees and charges paid for the use of indoor tennis courts within the village. Plaintiff corporation, which operates an indoor tennis club within the village, filed this action in the circuit court of Du Page County seeking a declaratory judgment that the ordinance was invalid and to enjoin the collection of the tax. The circuit court held the ordinance invalid and granted plaintiff's motion for summary judgment. The appellate court reversed (30 Ill. App.3d 134), and we granted plaintiff's petition for leave to appeal.
Plaintiff contends that section 11-42-5 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 11-42-5), which provided in pertinent part that "The corporate authorities of each municipality may license, tax, regulate * * * amusements and may license, tax, and regulate all places for * * * amusement," did not empower defendant to regulate the game of tennis and that it was, therefore, without authority to tax it. It contends further that the ordinance created an unreasonable classification in violation of the equal protection clause of article I, section 2, of the Illinois Constitution and the fourteenth amendment to the Federal Constitution.
The Chicagoland Indoor Tennis Association, as amicus curiae, supports plaintiff's contentions and urges reversal. It also argues an additional issue which will be discussed later.
Section 11-42-5 of the Illinois Municipal Code and its predecessors have existed in substantially the same form since 1871. (See Osborn v. Village of River Forest (1961), 21 Ill.2d 246; Smith-Hurd Ill. Ann. Stat., ch. 24, par. 11-42-5, Historical Note, at 170-71 (1962).) The parties agree that the power to regulate and the power to tax, while combined in this one statute, are separate and distinct governmental purposes; and that a non-home-rule municipality may, therefore, under this statute, regulate without taxing or tax without regulating. (See e.g., Condon v. Village of Forest Park (1917), 278 Ill. 218; Lamere v. City of Chicago (1945), 391 Ill. 552; Stiska v. City of Chicago (1950), 405 Ill. 374; and cases cited therein.) Plaintiff argues, however, that defendant "may not tax what it may not regulate"; that under the statute tennis was not subject to regulation and, therefore, was not subject to taxation. Defendant contends that the power to tax does not depend upon the power to regulate and that tennis is subject to taxation. Plaintiff relies primarily on Condon v. Village of Forest Park (1917), 278 Ill. 218, in which an ordinance imposing a license fee on golf courses was held invalid, and defendant places heavy stress upon Stiska v. City of Chicago (1950), 405 Ill. 374, in which an ordinance taxing the gross receipts from bowling, billiard and pool games was held valid.
In Condon, the village of Forest Park adopted an ordinance requiring an annual license fee of $750 for golf courses which charged an admission fee. The court, in considering the validity of the ordinance, first observed that under the statute as it then existed the General Assembly had "combined the power to regulate, suppress and prohibit which arises out of the police power, with the separate and distinct power to tax the objects and subjects therein mentioned, and authorized a municipality to exercise either power by means of a license" and then stated that 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 * * *." (Emphasis added.) 278 Ill. 218, 222, 223.
Although the ordinance contained no regulatory provisions and was enacted to raise revenue, the Condon court first considered whether the regulation of the game of golf was a permissible exercise of the police power. It noted that to "sustain an act or ordinance under the police power the court must be able to see that it tends in some degree to the prevention of offenses or the preservation of the public health, morals, safety or welfare" 278 Ill. 218, 223) and then stated:
"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.
If, as plaintiff contends, the court had held that the power to tax was dependent upon the power to regulate, it would have been required to go no further in deciding the validity of the ordinance. Instead it then examined whether it was a valid exercise of the power to tax amusements conferred upon municipalities by paragraph 41 of article V, section 1, of the cities and villages act of 1872 (Hurd's Rev. Stat. 1917, ch. 24, par. 62) and stated:
"We have seen that golf is not an amusement in fact, within the meaning of that paragraph, and it cannot be included under the settled rule of construction [ejusdem generis] adopted for the purpose of ascertaining the legislative intent. 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 legislative intent was to include them as subjects or objects of taxation." 278 Ill. 218, 226.
Stiska involved the validity of a Chicago ordinance which imposed a 3% tax on the gross receipts from admission fees, or other charges, to witness or participate in "amusements," which were defined in the ordinance to include "bowling, billiard and pool games." Because the ordinance imposed no regulations the court apparently did not consider it necessary to consider whether it was a valid exercise of the police power. The court's only reference to Condon was to state with questionable accuracy what it had said about Condon in Lamere v. City of Chicago (1945), 391 Ill. 552. Without mention of the construction given to the word "amusement" in Condon, the court said:
"The definition of `amusement' is so commonly accepted and so well known as to make reference to the definition unnecessary. There are many types and kinds of amusement and many have been included in the ordinance that is being questioned. The situation here sums itself up as to whether or not public participation in billiards and pool games is an `amusement' * * *.
* * * This section does not distinguish between amusements that are participative and those that are exhibitive. * * * The statute does not in any way restrict the tax and does not require that the ordinance segregate amusements into exhibitive and participative classes, * * *.
The pertinent question here is whether the word `amusements,' contained in the statute, is broad enough to cover both kinds. Appellants urge the doctrine of ejusdem generis requires the construction in this instance of the word `amusements' as being ...