Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. John J. Moran, Judge, presiding.
MR. JUSTICE DOOLEY DELIVERED THE OPINION OF THE COURT:
The city of Chicago prohibits the operation of public places of amusement, including motion picture theatres, without a license from the city. Municipal Code of Chicago, secs. 104-1, 104.1-2 (1975).
Section 101-5 of the Municipal Code of Chicago reads thus:
"Upon receiving satisfactory proof from the Director of Revenue that the applicant or each of the principal officers, if the applicant is a corporation, is a fit and proper person to be granted such license, and that all laws and provisions of this Code regulating the business or occupation for which such license is applied for, have been complied with, the Mayor may authorize the issuance of the said license by the City Clerk."
The same section 101-5 requires:
"If the mayor disapproves the license application the unsuccessful applicant shall be notified in writing, of the reasons for the disapproval. The license applicant may within 10 days after receiving notice of the disapproval make a request, in writing, to the mayor for a hearing on the disapproved application. Within 10 days after a request for a hearing is made, a public hearing shall be authorized before a hearing examiner appointed by the mayor who shall report his findings to the mayor. The public hearing shall be commenced within 10 days after it is authorized.
The Mayor shall within 15 days after such hearing has been concluded, if he determines after such hearing that the license application be disapproved, state the reason for such determination in a written finding and shall serve a copy of such finding upon the license applicant."
Defendants, Cyndy Groffman and Claude Jones, Jr., are motion picture theatre operators. They were charged in separate complaints in the circuit court of Cook County with violations of the provisions of the Municipal Code of the city of Chicago making it unlawful to operate an unlicensed motion picture theatre (sec. 104.1-2). Groffman was found guilty of two separate violations. Jones was found guilty of violating this ordinance 51 times. Fines and costs were imposed against each defendant as to each charge. The defendants' appeals were consolidated by the appellate court, which affirmed the convictions. 42 Ill. App.3d 139.
The only issue is the constitutionality of this ordinance setting forth the procedure to obtain a license of the type in question. This law has had a checkered judicial career. Three judges of the Seventh Circuit Court of Appeals, as well as a judge of the United States District Court, have held it unconstitutional as violative of the first amendment. In Grandco Corp. v. Rochford (7th Cir. 1976), 536 F.2d 197, decided prior to the appellate court opinions, that court held that the doctrine of Federal restraint did not prohibit intervention by the Federal courts> in an action by three plaintiff corporations operating motion picture theatres in Chicago to declare this ordinance unconstitutional on its face and to enjoin its enforcement. There it was said:
"It is also clear that Section 101-5 of the Municipal Code is unconstitutional on its face when applied to the licensing of motion picture theaters. Expression through motion pictures is a form of activity protected by the First Amendment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). The state may subject the exercise of First Amendment freedoms to the prior restraint of a license requirement, but only where it provides `narrow, objective, and definite standards to guide the licensing authority.' Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969). Section 101-5, in providing that the mayor may issue a license upon a satisfactory showing that the applicant is a fit and proper person, fails to provide the required standards. We agree with the district court's conclusion that `as written with regard to movie theatres, this section of the ordinance gives the mayor such broad discretion to deny a license application that it acts as an unconstitutional prior restraint upon the enjoyment and exercise of First Amendment freedoms.' Memorandum of Decision, April 11, 1974 (Unreported). The district court further found, and we agree, that the state appellate court's decision in City of Chicago v. Town Underground Theatre, Inc., 9 Ill. App.3d 930, 293 N.E.2d 367 (1973), failed to provide a limiting construction with standards to govern the exercise of the mayor's discretion, which might have rendered the ordinance constitutionally acceptable." Grandco Corp. v. Rochford (7th Cir. 1976), 536 F.2d 197, 207-08.
The appellate court in this case, after quoting this opinion, stated:
"We will approach this problem with due consideration of the principle that decisions of Federal courts>, except of course the United States Supreme Court, are not binding upon the courts> of Illinois. (People v. West (1971), 3 Ill. App.3d 106, 116, 278 N.E.2d 233, citing People v. Stansberry (1971), 47 Ill.2d 541, 544, 268 N.E.2d 431, cert. denied, 404 U.S. 873, 30 L.Ed.2d 116, 92 S.Ct. 121; United States ex rel. Lawrence v. Woods (7th Cir. 1970), 432 F.2d 1072, cert. denied, 402 U.S. 983, 29 L.Ed.2d 148, 91 S.Ct. 1658.) With all due deference to the United States Court of Appeals and to its decision, we are constrained to act within this principle and to state our own ideas and reach our own independent result." City of Chicago v. Groffman (1976), 42 Ill. App.3d 139, 145.
The general rule is that decisions of United States district and circuit courts> are not binding upon Illinois courts>. (People ex rel. Illinois Federation of Teachers v. Lindberg (1975), 60 Ill.2d 266, 277; People v. Stansberry (1971), 47 Ill.2d 541, 544.) Apart from the fact that a first amendment right is at issue, it ill behooves the administration of justice in Illinois to have a United States district court, as well as the Court of Appeals for the Seventh ...