APPEAL from the Circuit Court of Cook County; the Hon. JOHN F.
HECHINGER, the Hon. NATHAN M. COHEN, and the Hon. L. SHELDON
BROWN, Judges, presiding.
MR. PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
This is a case of first impression in the State of Illinois. The plaintiffs-appellants are corporations chartered by the State of Illinois to act as agents for the delivery of monies to be bet in parimutuel facilities established in accordance with the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1977, ch. 8, par. 37-1 et seq.). In June 1977, the Illinois legislature amended the Illinois Horse Racing Act by the addition of section 39.1, which provides:
"(a) No person shall, for a fee, directly or indirectly, accept anything of value from another to be transmitted or delivered for wager in any pari-mutuel or certificate system of wagering on horse races. Nothing in this Section prohibits wagering transactions authorized under this Act.
(b) Any person who violates this Section is guilty of a Class 4 felony." Ill. Rev. Stat. 1977, ch. 8, par. 37-39.1.
The plaintiffs-appellants commenced this action in the circuit court of Cook County for declaratory relief, injunction, return of property, and money damages. After the amendment to the statute, they included a count challenging the constitutionality of the amendment, i.e., section 39.1. The trial court granted the defendants' motion to dismiss the complaint for failure to state a cause of action. The plaintiffs-appellants are appealing from the decision of the trial court to dismiss their complaint for failure to state a cause of action.
The sole issue raised on review is whether or not the amendment to the Illinois Horse Racing Act as embodied in section 39.1 is unconstitutional, in that the right of plaintiffs to engage in business is unconstitutionally restrained unreasonably and without a proper nexus to a legitimate State need.
1 The law in Illinois is well settled on the subject of when the legislature may interfere in the conduct of business:
"It is a fundamental and well-established rule, both in the United States courts> and in the courts> of this State, as a firmly settled constitutional principle, that every citizen is guaranteed the right to engage in any lawful, useful and harmless business or trade, and it is not within the constitutional authority of the State legislature, in the exercise of police power, to interfere with the rights of the individual to carry on a legitimate business, where no interest of the public safety, welfare or morals is damaged or threatened. (Scully v. Hallihan, 365 Ill. 185; People v. Carolene Products Co. 345 Ill. 166; Banghart v. Walsh, 339 Ill. 132; New State Ice Co. v. Liebmann, 285 U.S. 262; Weaver v. Palmer [Bros. Co.], 270 U.S. 402.)" People ex rel. Barrett v. Thillens (1948), 400 Ill. 224, 232, 79 N.E.2d 609, 613.
2 Our supreme court has also discussed the concept of liberty and due process with regard to the authority of the legislature to interfere with the conduct of business. In People v. Brown (1950), 407 Ill. 565, 95 N.E.2d 888, the supreme court stated:
"Section 1 of article II of the State constitution declares all men have certain inherent and inalienable rights, three of them being the right to life, the right to liberty and the right to pursue happiness. Section 2 of the same article declares none of the three named rights, plus the right of property, shall be taken from a person except by due process of law, i.e., the law of the land. A person's business, profession, trade, occupation, labor, and the avails from each constitute `property' envisioned in the two sections. The right to follow any of those activities is `liberty' as also envisioned therein. Those rights guaranteed by the constitution are not unqualified rights to be exercised regardless of harm to others at all times or places. There must be a yielding, partially or wholly, thereof for the common good of society when the State so commands through the rightful use of its inherent police power to secure either the public health, morals, safety, comfort or common welfare.
That power is great and reaches far, but its use is hedged with restrictions. * * * The legislature cannot enact a lawful statute by invoking the police power on the pretense of protecting public interests when the actual objective of the statute constitutes an arbitrary interference with private business, or imposes unusual and unnecessary restrictions upon lawful occupations; if such statute does not tend to preserve the public health, safety or welfare, it is void as an invasion of individual property rights. People v. Carolene Products Co. 345 Ill. 166." Brown, at 572-73.
The Attorney General and the brief for the amici curiae continually refer to the business of the plaintiffs as being gambling. We think it would be instructive to examine the contract between one of the businesses and its customers. The contract between plaintiff Finish Line and its customers reads as follows:
"I herewith appoint any person provided by Finish Line Express, Inc. to act as my attorney-in-fact in purchasing parimutuel tickets for me, as indicated at the left. I do so subject to the terms and ...