Condon v. Village of Forest Park

• Decision Date: 19 April 1917
• Docket Number: No. 11296.,11296.
• Citation: 115 N.E. 825,278 Ill. 218
• Parties: CONDON v. VILLAGE OF FOREST PARK et al.
• Court: Illinois Supreme Court

278 Ill. 218

115 N.E. 825

CONDON

v.VILLAGE OF FOREST PARK et al.

No. 11296.

Supreme Court of Illinois.

April 19, 1917.

Appeal from Circuit Court, Cook County; Jesse A. Baldwin, Judge.

Suit by Mary A. Condon, in her own right and as executrix of the last will and testament of John Condon, deceased, against the Village of Forest Park and others, to enjoin defendants from attempting to enforce a village ordinance imposing a license tax on golf courses. Decree for complainant, and defendants appeal. Affirmed.Frank S. Righeimer, of Chicago, for appellants.

Judah, Willard, Wolf & Reichmann, of Chicago, for appellee.

CARTWRIGHT, J.

On August 8, 1916, the council of the village of Forest Park passed the following ordinance:

‘Be it ordained by the council of the village of Forest Park:

‘Section 1. Hereafter no person, firm or corporation shall conduct or control golf grounds or links to which grounds an admission fee is charged directly or indirectly, or where a fee is charged for the use of said grounds or for the privilege of playing thereon, until said person, firm or corporation shall first have procured from the village of Forest Park a license for said purpose.

‘Sec. 2. No license shall issue for said purpose until application has been made therefor, which application shall state the name of the owner of the property, also the name of the lessee thereof it said property is managed by a lessee, or if said property is in the possession of club, association or corporation, the names of the officers of said club, association or corporation. And after said application shall be approved by the council of the village of Forest Park a license shall be issued to the applicant upon the payment of a fee of seven hundred and fifty ($750) dollars for the license period, which shall commence on the 1st day of May and end on the 30th day of April next succeeding.

‘Sec. 3. Any person, firm or corporation failing to comply with the provisions of this ordinance shall be fined not to exceed one hundred dollars ($100), and each day on which any persons, firm or corporation shall permit said grounds to be used for the purpose of playing golf and shall charge a fee for the privilege of using said grounds shall constitute a separate and distinct offense.

‘Sec. 4. This ordinance shall be in full force and effect from and after its passage and publication according to law.’

The appellee, Mary A. Condon, in her own right and as executrix of the last will and testament of John Condon, deceased, filed in the circuit court of Cook county her bill of complaint in this case against the village of Forest Park and the mayor and chief of police, alleging that her husband, John Condon, at the time of his death was the owner of the tracts of land therein described, and had laid out a golf course thereon where many persons were accustomed to play the game of golf; that for the convenience of the players he caused lockers, dressing rooms, and shower baths to be constructed, which, with the laying out of the course and equipment, involved a considerable expenditure of money; that an admission fee of 50 cents a day was charged on week days and $1 on Sundays, and numbers of persons who could not afford to join golf clubs availed themselves of the privilege of playing upon the grounds; that he had built up a considerable patronage of persons who attended the golf course as patrons of the game; that he died on August 9, 1915, leaving a last will and testament, of which the complainant was executrix, and under which she was a beneficiary; and that she was conducting the business, and no amusement or recreation except the game of golf was conducted or permitted on the premises. The bill charged that the game of golf is a well-known recreation, beneficial to the health of the players, and was carried on in a quiet manner, calling for no police or other expenditure on the part of the village, and prayed that the ordinance should be found and adjudged to be null and void and the village and its officers enjoined from attempting to enforce it. The defendants demurred to the bill, and, the demurrer being overruled, they refused to make further answer, whereupon the bill was taken as confessed, and the defendants were perpetually enjoined from enforcing the ordinance. The court certified that the validity of the municipal ordinance was involved, and the public interestrequired an appeal directly to this court, and such appeal was allowed and perfected.

A municipal corporation exercises only delegated powers, and has no inherent power to levy a tax by requiring a license or otherwise or to exact a license fee for conducting any business or occupation. The legislative power is vested in the General Assembly, and such power as it may lawfully exercise it may delegate to municipalities for the government and regulation of local affairs, but the authority to exercise any power or to pass any ordinance must be found in some act of the General Assembly by which the authority is either expressly given or necessarily implied for the proper and effective execution of some power expressly granted. If there is any fair and reasonable doubt as to the extent of power so delegated, the doubt must be resolved against the municipality claiming the right to exercise it, and the power held not to exist. Wilkie v. City of Chicago, 188 Ill. 444, 58 N. E. 1004,80 Am. St. Rep. 182;City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 93 N. E. 753;City of Chicago v. Ross, 257 Ill. 76, 100 N. E. 159,43 L. R. A. (N. S.) 205;People v. City of Chicago, 261 Ill. 16, 103 N. E. 609,49 L. R. A. (N. S.) 438, Ann. Cas. 1915A, 292;City of Chicago v. Mandel Bros., 264 Ill. 206, 106 N. E. 181.

Section 1 of article 5 of the Cities and Villages Act (Hurd's Rev. St. 1915-16, c. 24, § 62) enumerates the general powers of the city council, and it is claimed by the village of Forest Park that power to pass the ordinance in question was delegated to it by paragraph 41 of that section, as follows:

‘To license, tax, regulate, suppress and prohibit hawkers, peddlers, pawnbrokers, keepers of ordinaries, theatricals and other exhibitions, shows and amusements, and to revoke such license at pleasure.’

The General Assembly by that paragraph 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. It has been so regarded by the court. United States Distilling Co. v. City of Chicago, 112 Ill. 19, 1 N. E. 166;Banta v. City of Chicago, 172 Ill. 204, 50 N. E. 233,40 L. R. A. 611;Price v. People, 193 Ill. 114, 61 N. E. 844,55 L. R. A. 588, 86 Am. St. Rep. 306;Bessette v. People, 193 Ill. 334, 62 N. E. 215,56 L. R. A. 558;Harder's Storage Co. v. City of Chicago, 235 Ill. 58, 85 N. E. 245,14 Ann. Cas. 536;Metropolis Theatre Co. v. City of Chicago, 246 Ill. 20, 92 N. E. 597. Although it has sometimes been said that a license fee exacted for the purpose of revenue is not a tax, such statement must be understood as meaning that it is not a tax in the sense of the...