Lamere v. City of Chicago

• Decision Date: 21 November 1945
• Docket Number: Nos. 28214-28220.,s. 28214-28220.
• Citation: 63 N.E.2d 863,391 Ill. 552
• Parties: LAMERE et al. v. CITY OF CHICAGO et al. CITY OF CHICAGO v. KAZ.
• Court: Illinois Supreme Court

391 Ill. 552

63 N.E.2d 863

LAMERE et al.

v.CITY OF CHICAGO et al.

CITY OF CHICAGO

v.KAZ.

Nos. 28214-28220.

Supreme Court of Illinois.

Nov. 21, 1945.

Appeal from Circuit Court, Cook County, and Municipal Court of Chicago; Julius H. Miner and Irwin B. Clorfene, Judges.

Action by Albert Lamere, doing business as Paradise Confectionery, and others against the City of Chicago and others seeking to have an ordinance providing for licensing of authomatic musical instruments declared void and defendants permanently enjoined from enforcing it. Decree for defendants and plaintiffs appeal, the appeal being consolidated for an opinion with an appeal from a judgment against Jeanette D. Kaz, convicting her of having violated the same ordinance.

Reversed and remanded with directions as to the first appeal and reversed as to the other appeal.

Kirkland, Fleming, Green, Martin & Ellis, of Chicago (Joseph B. Fleming, Joseph H. Pleck, and Edward C. Caldwell, all of Chicago, of counsel), for appellants Albert Lamere et al.

Halfpenny & Hahn, of Chicago (Richard F. Hahn, of Chicago, of counsel), for appellant Jeanette D. Kaz.

Barnet Hodes, Corp. Counsel, of Chicago (Martin H. Foss, of Chicago, of counsel), for appellees.

PER CURIAM.

At a previous term of this court, causes Nos. 28214 and 28220 were consolidated for an opinion. The former is a direct appeal from a decree entered in the circuit court of Cook county and the latter is an appeal from a judgment entered in the municipal court of Chicago. Both appeals involve the validity of an ordinance of the city of Chicago, which provides for the licensing of automatic musical instruments. The plaintiffs in No. 28214 sought to have the ordinance declared void and defendants permanently enjoined from enforcing it. In the other case, the appeal is from a judgment convicting defendant of having violated the ordinance. A certificate of the trial judge in No. 28214 recites that the validity of a municipal ordinance is involved and that in his opinion the public interest requires that it be passed upon by this court. The appellants in each case contend that the ordinance violates their rights under the State and Federal Constitutions.

On December 15, 1943, the council of the city of Chicago passed an ordinance which amended chapter 104 of the municipal code by adding thereto new sections as follows:

‘104-32.1 Definition.) The term ‘automatic musical instrument’ means any phonograph, piano player, music box, ‘juke box,’ or other instrument or device capable of producing or reproducing any vocal or instrumental sounds, other than a motion picture sound machine, which is governed or controlled by the deposit of a coin or token.

‘104-32.2 License required.) No person shall keep, or permit to be kept, for gain or profit from operation whthin the city, any automatic musical instrument without first having obtained a license as herein provided.

‘104-32.3 Application.) An application for said license shall be made in conformity with the general requirements of this code relating to applications for licenses. In addition, the applicant shall set forth the number and description of the automatic musical instrument or instruments intended to be kept for use on his premises.

‘104-32.4 License fee.) The annual fee for such license shall be fifty dollars for each such instrument kept or installed on the licensed premises.

‘104-32.5 Transfer of license.) No license issued to any person hereunder shall be transferable.

‘104-32.6 Special regulations.) No license issued hereunder shall permit the operation of any automatic musical instrument at any place or in any manner which will disurb the peace and quiet of persons outside the licensed premises. No immoral or indecent selections shall be played on any such instrument.’

Lamere and Wolf, two of the plaintiffs in No. 28214, each own and operate a retail confectionery store and each kept an automatic phonograph in his place of business. Plaintiff Rasmussen operates a tavern and has two of such instruments in his place. Plaintiff Biggar owns 28 and Miller 25 machines, and they are what are known in the record as operators, leasing and placing the machines in various places of business upon some kind of a rental basis.

The instruments which it is claimed are subject to be licensed under the ordinance are described as automatic phonographs, electrically operated, and which play musical records at the selection of the customer. The customer selects the musical record he desires by the operation of an indicator and the instrument starts playing such record by the deposit of a five-cent piece in a slot on the machine. They are frequently referred to as ‘juke boxes.’

Plaintiffs contend the city was without power to pass said ordinance. In answer to such contention, defendants refer to sections 23-5, 23-54, 23-61, 23-72, 23-81, 23-105, and 23-106 of the Revised Cities and Villages Act, Ill.Rev.Stat.1943, chap. 24, par. 23-5 et seq., but they rely principally upon section 23-54. It is as follows: ‘To license, tax, regulate or prohibit hawkers, peddlers, pawnbrokers, itinerant merchants, transient vendors of merchandise, theatricals and other exhibitions, shows, and amusements; to license, tax, and regulate all places for eating or amusement.’

The ordinance in question prohibits any person from keeping, or permitting to be kept, any automatic musical instrument for gain or profit without first obtaining a license so to do. The place where the instrument is kept or the character of the business conducted in the place where it is located, are matters which have no bearing on the license requirements of the ordinance. The clause in the ordinance (104-32.6) which provides that no license issued shall permit the operation of the instrument ‘outside the licensed premises' must, in view of the other provisions, be considered as an attempt to regulate the instrument and not as an attempt to regulate the premises where the instrument happens to be located. Since the ordinance is limited to the licensing of the instrument, it is clear that the power attempted to be exercised does not come from that part of section 23-54 which authorizes municipalities ‘to license, tax and regulate all places for eating or amusements.’

Defendants' contentions are that the power to enact the ordinance is found in that part of section 23-54 which delegates to municipalities the authority to license, tax, regulate or prohibit ‘theatricals and other exhibitions, shows and amusements.’ If the rule of ejusdem generis is applied as contended for by plaintiffs, then the word ‘theatricals' is the principal word that casts a shadow of meaning over the words that follow; that is, those forms of entertainment which are usually referred to as exhibitions, shows or amusements would be excluded from the act unless they were of or pertained to the theater. It is obvious some kinds of exhibitions, shows or amusements would be entirely foreign to ‘theatricals.’ This is well illustrated by the music box described in the ordinance. Under certain conditions it could well be a form of amusement but at the same time it would be wholly unrelated to the theater or anything pertaining to theatricals.

Plaintiffs' contention as to the rule of ejusdem generis rests principally upon what was said in Condon v. Village of Forest Park, 278 Ill. 218, 115 N.E. 825, L.R.A.1917E, 314. In that case, the court was considering the validity of an ordinance adopted by the city of Chicago which required the payment of an annual license fee for golf courses. The act was held invalid on the ground that there was nothing in the operation of a golf course that made it subject to regulation through an exercise of the police power of the State. What was said in that opinion in reference to the applicability of the rule of ejusdem generis was not necessary to the conclusion reached on the principal point upon which the case was decided.

The rule of ejusdem generis is only a rule of construction to aid in ascertaining and giving effect to the legislative intent. 50 Am.Jur. p. 247. It cannot be applied to defeat the evident purpose of the statute or to restrict the scope of subjects the Legislature intended to include within the act. Gillock v. People, 171 Ill. 307, 49 N.E. 712. In Sutherland on Statutory Construction, it is said: ‘This rule can be used only as an aid in ascertaining the legislative intent and not for the purpose of contravening the intention or of confining the operation of the statute within narrower limits than was intended by the law maker.’ The obvious intent of the General Assembly was to delegate to cities and villages the power to license, tax, regulate or prohibit not only those forms of entertainment and amusement commonly designated as theatricals but to include all that come within the usual and ordinary meaning of the words ‘exhibitions, shows and amusements.’

Section 41 of article 5 of the former Cities and Villages Act, Smith-Hurd Rev.St.1935, c. 24, s 65.40, Ill.Rev.Stat.1935, chap. 24, par. 65(41), was substantially the same as section 23-54 of the Revised Cities and Villages Act. The earlier act was construed as combining two separate and distinct powers, one of which was the power to regulate, suppress and prohibit, which was an exercise of the police power, and the other, the power to raise revenue by taxing the subjects or objects described in the ordinance. It was held that either power could be exercised and put in force by means of license requirements and the payment of a license fee. City of Metropolis v. Gibbons, 334 Ill. 431, 166 N.E. 115;Metropolis Theater Co. v. City of Chicago, 246 Ill. 20, 92 N.E. 597;Harder's Fireproof Storage & Van Co. v. City of Chicago, 235 Ill. 58, 85 N.E. 245,14 Ann.Cas. 536. Under the rule that a re-enacted statute will be given the same construction as that given the prior act which it follows, the present section 23-54, will also be held to delegate two...