Appeal from the Circuit Court of Peoria County, the Hon. James
D. Heiple, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
This is a direct appeal to this court under Rule 302(b) (58 Ill.2d R. 302(b)) from an order of the circuit court of Peoria County declaring the city of Peoria tax on admissions to amusements unconstitutional.
On October 22, 1976, plaintiffs, who are principally owners of theaters in Peoria, filed a complaint for declaratory judgment challenging the validity of an ordinance of the city of Peoria (a home rule city) imposing a 2% tax on admissions to amusements. The ordinance placed the incidence of the tax on the consumer. The complaint alleged inter alia the unconstitutionality of four categories of exemptions from the tax. On November 9, 1976, the Peoria city council amended the ordinance, deleting the four categories of exemptions and providing in the amended ordinance for two categories of exemptions. Plaintiffs then filed an amended complaint seeking relief covering two periods of time, namely, (1) from August 31, 1976, to November 9, 1976 (the period during which the original ordinance was in effect), and (2) after November 9, 1976 (the period the amended ordinance was in effect). After the trial court's decision on June 9, 1978, holding the ordinance invalid, the Peoria city council passed a new ordinance imposing its admissions tax. The new ordinance is not involved in this litigation.
The amended complaint was in six counts. Count I alleged that the tax was in fact a non-uniform special assessment and therefore invalid. Count II alleged that the ordinance in effect from August 31, 1976, to November 9, 1976, contained arbitrary and discriminatory exemptions. Count III alleged that after November 9, 1976, the amended ordinance was administered in an arbitrary and discriminatory manner. Count IV alleged that the ordinance in effect after November 9, 1976, contained arbitrary and discriminatory exemptions. Count V alleged that as applied and enforced after August 31, 1976, the ordinance was in fact an illegal occupation tax. Count VI alleged that a home rule unit has no authority to assess a tax against certain basic human rights the right to witness an amusement. The trial court granted the defendants' motion for summary judgment as to count I (special-assessment theory) and count VI (basic-human-rights theory). Following a hearing on the remaining counts, the circuit court entered judgment in favor of the plaintiffs, holding the ordinance to be unconstitutional. The defendants appealed from the order declaring the ordinance unconstitutional and the plaintiffs cross-appealed from the summary judgment order as to counts I and VI.
The ordinance enacted August 31, 1976, provided:
"(a) There is hereby levied and imposed upon privilege of participating in or witnessing an amusement within the City of Peoria a tax of two percent (2%) of the admission fee charged to said amusement exclusive of other state or federal taxes; provided however, that said tax shall not apply to or be imposed upon the privilege of participating in or witnessing of any amusement the proceeds of which, after payment of reasonable expenses, inure exclusively to the benefit of:
(1) not-for-profit religious, educational, charitable institutions, societies or organizations; or
(2) societies or organizations maintained for the prevention of cruelty to children or animals; provided, however, that no part of the net earnings under Paragraphs (1) and (2) inure to the benefit of an owner;
(3) governmental units, boards, commissions and bodies duly organized under the laws of the City of Peoria, State of Illinois or United States of America;
(4) a resident society, organization, association, corporation, entity or person advancing the cultural interests of the City of Peoria through the local production of live theatrical and dramatic presentations to a seated audience of any open-air or enclosed theater, auditorium or the like which has a seating capacity, including balconies, not exceeding 700 persons.
(b) The ultimate incidence of and liability for payment of said tax shall be borne by the person who seeks participation or admission to any such amusement, said person hereinafter referred to as `consumer'.
(c) The tax herein levied shall be paid in addition to any and all other taxes and charges. It shall be the duty of the owner, manager or operator of every amusement in the City to act as trustee for and on account of the City, and to secure said tax from the consumer and pay over to the City Comptroller said tax under procedures prescribed by the City Comptroller or as otherwise provided in this ordinance.
(d) Every person required to collect the tax levied by this ordinance shall secure said tax from the consumer at the time he collects the admission or participation fee charged for the amusement. Upon the invoice receipt or other statement or memorandum of the rent given to the renter at the time of payment, the amount due under the tax provided in this ordinance shall be stated separately on said documents."
On November 9, 1976, after the complaint was filed, that part of paragraph (a) of the ordinance set out above, which provided for the exemptions from its application, was amended so that there ...