Appeal from the Circuit Court of Cook County; the Hon.
Reginald J. Holzer, Judge, presiding.
PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Plaintiff, Michael Isberian, brought this class action on his own behalf and on behalf of all individuals who paid an amusement tax under Gurnee ordinance 80-50 and its predecessor 76-17. Alleging that the village of Gurnee had been unjustly enriched thereby, plaintiff sought recovery of the tax on the grounds that the ordinance in question was illegal and in violation of the Illinois Constitution. After a bench trial, the trial court entered judgment for plaintiff in the amount of $2,488,210.35, finding that the ordinance constituted an illegal occupation tax. The village appeals.
Village of Gurnee ordinance 80-50 imposed a tax "upon all persons or corporations involved in the operation of amusement parks or theme parks within the Village of Gurnee of an amount of 25 cents ($.25) per ticket from fees or charges paid by persons who attend said amusement park or theme park."
Pursuant to this ordinance, a 25-cent charge was added to the price of a ticket for admission to Marriott's Great America. Plaintiff purchased four such tickets during the summer of 1981 and attended Great America. He later filed this action seeking recovery of the tax from the village on the ground that it constituted an illegal tax on occupations which was prohibited by article VII, section 7 of the 1970 Illinois Constitution.
Relevant to this appeal are the following provisions of article VII of the 1970 Illinois Constitution:
"Sec. 6(a) * * * [E]xcept as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, * * * the power * * * to tax * * *.
(e) A home rule unit shall have only the power that the General Assembly may provide by law * * * to * * * impose taxes upon * * * occupations.
(g) the General Assembly by a law approved by the vote of three-fifths of the members elected to each house may deny or limit the power to tax and any other power or function of a home rule unit * * *.
Sec. 7 Counties and municipalities which are not home rule units shall have only powers granted to them by law and [other powers specified in sec. 7] * * *." (Emphasis added.)
Also relevant to this appeal is section 9 of the Transition Schedule of the 1970 Constitution, which provides that "[a]ll laws * * * not contrary to, or inconsistent with, the provisions of this Constitution shall remain in force * * *."
Defendant is not a home rule unit. It therefore derives its power from section 7 of the 1970 Constitution. Since the power to tax amusements is not one of the powers specified in that section, the village had no authority to impose the tax in question unless such authority was granted to it "by law."
The village takes the position that the statute which authorizes municipalities to tax amusements, provides such authorization. (Ill. Rev. Stat. 1981, ch. 24, par. 11-42-5.) The trial court, however, adopted plaintiff's position that since the statute was enacted prior to the adoption of the 1970 Constitution, it could not provide the legislative authorization required by section 7. The trial court also found that the tax in question constituted an occupation tax and as such was impliedly prohibited by section 6(e). The court reasoned that it would be contrary to the 1970 Constitution to allow a non-home-rule unit to enjoy greater power than that enjoyed by a home rule unit.
On appeal, the village urges that its ordinance constituted a permissible tax and that in any event plaintiff is barred from recovering under the doctrine of voluntary payment. The trial court ruled against the village on this latter issue for want of proof.
• 1 We first address the village's contention that the ordinance constituted a permissible tax. The statute provides in pertinent part that, "[t]he corporate authorities of each municipality may * * * tax * * * amusements * * *." (Ill. Rev. Stat. 1981, ch. 24, par. 11-42-5.) We find that this provision did provide the statutory authorization required by section 7 to empower the village to enact the ordinance in question. We disagree with the finding of the trial court that because section 11-42-5 was enacted prior to the adoption of the 1970 Constitution it could not provide such statutory authorization. According to section 9 of the General Transition Schedule, "[a]ll laws * * * not contrary to, or inconsistent with, the provisions of this Constitution shall remain in force * * *." There is no inconsistency between the section 11-42-5 statutory authorization to tax amusements and the section 7 constitutional provision limiting the powers of non-home-rule units to those authorized by law. We therefore find that section 11-42-5 remains in force.
The cases on which plaintiff relies to support the trial court's position with regard to section 11-42-5 are distinguishable. Mulligan v. Dunne (1975), 61 Ill.2d 544, 338 N.E.2d 6, involved the question of whether a statute enacted prior to the adoption of the 1970 Constitution could operate to restrict the broad taxing powers granted to home rule units by section 6(a). Section 6(g) does authorize the legislature to limit those powers, but only by a law approved by three fifths of the members of each house and enacted in a specific effort at limiting home rule power. (Kanellos v. County of Cook (1972), 53 Ill.2d 161, 290 N.E.2d 240.) The court in Mulligan recognized that, since ...