Nat. Drag Racing Enterprises, Inc. v. Kendall Cty.

WARD and GOLDENHERSH, JJ.,

dissenting:

Section 2 of the statute (Ill. Rev. Stat. 1969, ch. 34, par. 6102) is not in language conventionally used to authoirze a local government to license, tax or regulate. Rather than empowering a county “to license,” “to tax” or “to regulate,” or a combination of these, in unusual form it states that “each county board shall fix a permit fee ***.”

We do not judge, as apparently the majority does, that the section should be interpreted as conferring authority to license for revenue, as well as to regulate. Considering the nature of the affected activities, that is, motor vehicle racing and stunting, their relation to public safety and the record here, we believe that the legislative intendment was to confer a regulatory power.

For regulatory licensing under the police power there must be regulatory provisions and these provisions must be reasonable and relate to public health, safety or welfare. The defendants admitted, and the trial court properly found, that there never had been any attempt to supervise or regulate the operation of the plaintiff’s business. The only requirement imposed on the plaintiff was to pay the daily fee. We agree with the trial court’s conclusions that the fee had been improperly exacted by the defendants and that the plaintiff was entitled to a refund of fees paid, though the trial court gave other grounds for its conclusions.

Saying that the authority conferred under a statute need not be labeled as either a regulatory or a revenue power and that both may be combined in one statute, the majority considers the statute here as such an enactment. Even if the absence of regulatory provisions were to be overlooked, such a construction poses difficulties in the context of questions arising here. It is generally said that where a license fee is imposed for purposes of revenue the fixing of the amount of the fee is discretionary, provided that the amount is not confiscatory. (See 1957 U. Ill. L.F. 93.) However, if the requirement of a fee constitutes an exercise of the police power the fee charged must bear some reasonable relationship to the additional burden and necessary expense involved in the regulation and supervision of the business concerned. (City of Chicago Heights v. Public Service Co. of Northern Ill., 408 Ilkl. 604, 608-609.) This requirement of a reasonable relationship of the fee to the burden undertaken can apparently now be circumvented simply by saying that the concerned statute conferred an authority to license for revenue as well as for regulation.