People ex rel. United Theatres Co. v. Busse , 162 Ill. App. 314 ( 1911 )

Mr. Justice Baldwin

delivered the opinion of the court.

In this case appellants stand upon their contention that “the sole question at issue in this case” is, whether the action of the mayor, in refusing to grant the license in. question, for the reason set forth in the amended answer for appellants, that the proposed place of amusement is on the same side of the street and within 118 feet of a church which had been established for thirty years at that point, constituted a proper exercise, by such officer, of the discretion expressly vested in him by the ordinance of the city, or whether such action was an .abuse of such discretion. Accordingly, the question directly presented for our decision is whether the phrase in the ordinance “fit and proper place,” has, or should have, reference to the physical location of the place at a given street number.

By the 58th clause of section 1 of article 5, chapter 24, of the act relating to Cities, Villages and Towns, prescribing the powers of the city council, power is conferred upon the city council to “regulate places of amusement.”

Clause 95 of the same section and act has been recently before our Supreme Court in the case of People v. Busse, 240 Ill. 338. By that clause, the city council is given power “to tax, license and regulate second-hand and junk stores,” etc. Under the authority thus conferred, the city council provided, by section 692 of its Municipal Code, as amended July 13, 1908, that “it shall not be lawful for any person or corporation * * * to locate, build, construct or maintain on any street' or alley in the city, any building or place used for a junk shop or yard without the written consent of a majority of the property owners in which said junk shop or- yard is sought to be built, constructed or maintained.” There was thus clearly presented to the Supreme Court the question whether, the charter power conferred upon the city to regulate junk shops, enabled the city to determine their location, and the court held squarely against the contention of the city, and decided that it did not.

The Supreme Court has, also, recently held that the business of conducting a theatre is a private business, and that “in respect of the power of the legislature to tax or license it, the business of conducting a theatre is in no different condition from any other business. The legislature may impose a tax upon, or require a license fee, for the exercise of any avocation. The legislature has the same authority over a theatrical business as over any other private business and no more.” People v. Steele, 231 Ill. 340 (344),

However commendable the purpose of the Mayor may have been in attempting to prevent the location of this place of amusement in such close proximity to a church long established, we cannot construe the lang’uage of the ordinance in such a manner as to effectuate this purpose of the mayor, without violating the law, as laid down by our Supreme Court.

There being no other question involved in the case, and being of the opinion that the court below did not err in awarding a peremptory writ of mandamus, its action will, therefore, be affirmed.

Affirmed.