dissenting:
The resolution of this appeal turns primarily on the interpretation of various provisions of the Illinois Liquor Control Act (Ill. Rev. Stat. 1973, ch. 43) (the Act) and section 17 of the Bill of Rights of the 1970 Illinois Constitution, the discrimination prohibition. At issue is whether the civil rights provision of the Act (section 12b) and the discrimination prohibition of the Constitution apply to the sale of liquor by clubs.
The following considerations are relevant in construing the Act. The energetic and far-ranging emphasis in recent years upon eliminating discrimination in our State and nation, based on a person’s race, color, creed, national ancestry or sex, requires as a matter of public policy that our laws be construed to further that objective wherever possible. This principle of interpretation is supported by the Act itself, which directs that it is to be liberally construed to protect the health, safety and welfare of the people (section 1). In addition, this court has stressed that a strict or technical construction of any of the provisions of the Act detrimental to or inconsistent with the public interest should be avoided. (Hassiepen v. Marcin (1974), 24 Ill. App. 3d 97, 100, 320 N.E.2d 572.) Accordingly, elimination of discriminatory policies by liquor licensees is consistent with these directives.
The twenty-first amendment to the United States Constitution gives each State broad authority to regulate the distribution and sale of alcoholic beverages. (California v. La Rue (1972), 409 U.S. 109, 114-15, 34 L. Ed. 2d 342, 349-50, 93 S. Ct. 390, 395.) A State, if it chooses, may require a club to adhere to racially nondiscriminatory membership policies as a condition of holding a State liquor license and selling liquor. (B.P.O.E. Lodge 2043 v. Ingraham (Me. 1972), 297 A.2d 607, cert. denied, 411 U.S. 924, 36 L. Ed. 2d 386, 93 S. Ct. 1893.) This is so even though the fourteenth amendment does not restrict a private club from discriminating on the basis of race in the sale of liquor. (Moose Lodge No. 107 v. Irvis (1972), 407 U.S. 163, 32 L. Ed. 2d 627, 92 S. Ct. 1965.) Thus, this State has the power to prevent a club from following discriminatory policies in selling liquor.
The civil rights provision of the Act prohibits discrimination on the basis of sex. In Walton Playboy Clubs, Inc. v. City of Chicago (1962), 37 Ill. App. 2d 425, 431, 185 N.E.2d 719, the court observed that statutes identical to the civil rights provision of the Act have been uniformly construed by reviewing courts of various jurisdictions to prohibit discrimination because of color, creed or race. The Illinois provision (section 12b) applies to “any person” and the word person encompasses women as well as men. (People ex rel. Denny v. Traeger (1939), 372 Ill. 11, 17, 22 N.E.2d 679.) Therefore, it is logical to extend the civil rights provision of the Act to discrimination based on sex as well as on color, creed or race. No defendant disputes such an interpretation of section 12b.1
Section 12b bars discrimination against members of any of the prohibited categories of persons except when “conditions and limitations established by law” excuse a liquor licensee from compliance. The only conditions or limitations established by the Act which expressly exempt licensees, including clubs, from compliance with the civil rights provision are those found in section 12, which prohibits sales to minors, intoxicated persons, habitual drunks, and incompetents. Throughout the Act, where exceptions from various statutory mandates are permitted for certain categories of licensees, including clubs, the exceptions are expressly stated. For example, section 8 expressly exempts clubs from the provision barring the sale of liquor within 100 feet of any church, school, or similar institution. Clubs, unlike most other licensees, are permitted by section 9 to maintain rooms for lodging with access to premises on which liquor is sold. Similarly, clubs are specifically excused from the Act’s requirement that liquor not be sold at retail on credit (section 13). The Act’s statutory scheme is to excuse licensees from complying with its various requirements only by express provision when such exceptions are intended. But no provision of the Act expressly differentiates between “clubs” and other types of licensees in applying the civil rights provisions of the Act, or expressly exempts “clubs” from those requirements. Accordingly, exempting clubs from the obligation to comply with the civil rights paragraph should not be read into the Act.
The majority finds an exemption for clubs from the civil rights provision in section 2.24 of article I. I disagree. In construing that provision one must first turn to section 21 of the Act. Section 21 labels the provisions of section 2.24 as “qualifications,” and provides that no person shall receive a license to sell alcoholic liquor on any premises as a club unless that club has the “qualifications” described in section 2.24. Section 2.24 defines a club as a not-for-profit corporation organized solely to promote some common object other than the sale or consumption of alcoholic liquors, with space suitable and adequate for the reasonable and comfortable use of its members and their guests. To qualify as a “club,” the use of the organization’s facilities must be limited to club members and their guests.2
1 cannot justify construing section 2.24, which sets forth the “qualifications” for club status, as also giving clubs an exemption from any other provision of the Act, since the requirements for qualification as a club do not clearly contemplate such an exemption. Section 2.24 neither provides clubs with an exemption from the civil rights statute, nor recognizes that clubs have any right to discriminate against categories protected by section 12b either in membership policies or in acceptance of guests. While section 2.24 undeniably requires a club to restrict its patronage to members and their guests, this limitation does not authorize clubs to pursue discriminatory policies with regard to choice of members and invitation of guests based upon sex, race, color, creed or national ancestry. By setting forth the qualifications for recognition as a club, section 2.24 gives “club” an operational definition, and so makes the other express provisions of the Act which refer to clubs meaningful. In itself, it does not provide any exemptions from other provisions of the Act.
The majority appears to reason that the very use of the word “club,” combined with the restriction on the use of club facilities to members and their guests, condones any sort of selectivity a club might wish to pursue in its membership or guest policies. Nothing in the word “club” justifies this conclusion, for selectivity is not synonymous with discrimination. The word “club” necessarily implies that the Act permits some sort of selectivity, and some exclusions; however, the word does not imply that all types of selectivity and all sorts of exclusions are countenanced by the Act. Therefore, while section 2.24 acknowledges that clubs may be selective in their membership and guest policies, it does not acknowledge that all forms of selectivity or discrimination practiced by clubs are acceptable.
Further, in view of section 12b’s sweeping limitation on the right of any licensee to discriminate against prohibited categories of persons in selling liquor, I see no justification for reading into the word “club” the right to ignore that expression of public policy or concluding that the use of the word “club” implies an inherent privilege to discriminate on the basis of race, creed, color, sex or national ancestry. The policy announced in the civil rights provision of the Act is salient and should not be diminished unnecessarily. This conclusion is particularly valid in view of the twin public policy considerations that the Act be liberally construed to protect the welfare of the people, and that strict or technical construction of provisions detrimental to or inconsistent with the public interest be avoided. (Hassiepen.) I therefore dispute the majority’s conclusion that section 2.24 provides conditions or limitations established by law of the type contemplated by section 12b, which exempts clubs from complying with the antidiscrimination requirements of that paragraph. Nothing in section 2.24 permits the defendant club of which Charles Davis, one of the plaintiffs, is a member, to tell Mr. Davis he cannot bring to his club as a guest or propose for membership a person who is black, or Irish, or female, or Jewish, because the club pursues a policy of excluding such people.
Regardless of the meaning of section 2.24, section 12b permits exceptions to its provisions only if those exceptions are “applicable alike to all citizens.” The exclusion of women as a class from membership or guest privileges in clubs is not a restriction “applicable alike to all citizens,” and cannot qualify as an exception to section 12b. This is especially true given the magnitude of this particular exclusion which affects at least half the adult population of metropolitan Chicago.
The majority asserts that the plaintiffs have claimed the phrase “applicable alike to all citizens” should be interpreted to prohibit discrimination only on the basis of immutable characteristics such as sex, color or national origin. The majority therefore rejects the plaintiffs’ plea to permit women access to the defendant clubs, apparently concluding that because the plaintiffs’ brief improperly limited the scope of that phrase to exclude discrimination based on nonimmutable characteristics such as religion or creed', their entire argument was unworthy of consideration. This response is an unwarranted overreaction to the plaintiffs’ argument. Although the plaintiffs are overzealous in asserting that the phrase is limited to immutable characteristics, they still correctly argue that the phrase “applicable alike to all citizens” was intended to prohibit discrimination on the basis of sex. Whatever the flaw in the plaintiffs’ specific argument, the fact remains that the general thrust of their reasoning is equally applicable to immutable and nonimmutable characteristics. Clearly, the meaning of the phrase “applicable alike to all citizens” should not be restricted simply because the plaintiffs contend that it entitles their group to more protection than other groups.
Further, the majority misinterprets the Walton Playboy case. The court there held that a $50 membership fee uniformly applied to all people regardless of their color, creed, birth or ancestry was not a type of discrimination prohibited by the civil rights provision of the Act. Indeed, the Walton Playboy court held that this financial barrier was “applicable alike to all citizens,” since any person — male or female, black or white— could join if he had $50. Although Walton Playboy upholds exclusions based on financial ability, and the rationale of that case might be extended to permit exclusions based on other factors such as a person’s dress or behavior, it cannot be construed to condone discrimination on the basis of sex or any of the other prohibited categories. On the contrary, the rationale of Walton Playboy is authority for striking down all discrimination on the basis of color, race, creed and sex rather than for upholding such discrimination.
In view of the lengthy analysis of the statutory and constitutional provisions by both the majority and this dissent, delving into the logic and basis of the detailed memorandum of the Illinois Liquor Control Commission in In re Chicago Club v. ILC, 73-74, CIT No. 116, or the rationale of the Maine Supreme Court in B.P.O.E. Lodge, which the Commission relied on in drafting its memorandum, would serve little purpose here. This is especially true because the Commission’s interpretation, while a substantial factor to be considered in arriving at the meaning of the statute (Youakim v. Miller (1976), 425 U.S. 231, 235, 47 L. Ed. 2d 701, 706, 96 S. Ct. 1399, 1402; First National Bank & Trust Co. v. City of Rockford (1977), 47 Ill. App. 3d 131, 141, 361 N.E.2d 832) and an informed source for ascertaining the legislative intent (Adams v. Jewel Companies, Inc. (1976), 63 Ill. 2d 336, 344-45, 348 N.E.2d 161), is not binding upon this court. First National Bank & Trust Co. v. City of Rockford; National Transportation, Inc. v. Howlett (1976), 37 Ill. App. 3d 249, 255, 345 N.E.2d 767; First Federal Savings & Loan Association v. Elbert (1975), 33 Ill. App. 3d 335, 341, 337 N.E.2d 420.3
Nevertheless, despite the ambiguities in the Commission’s memorandum pointed out by the majority, and the fact that the Maine case which the Commission cited in its memorandum was based partially on a differently worded statute than the one before us, the following conclusions were clearly stated by the Commission and they are entitled to consideration by this court. They also coincide with the interpretation I give the Act. First, the language of section 12b includes within its coverage every type of licensee, including clubs. Second, section 2.24 does not contain an exception, limitation or condition with respect to section 12b or any of the general provisions of the Act. Third, section 12b protects women. Fourth, the exclusion of women from enjoying the full and equal enjoyment of the accommodations of a club is a condition and limitation applicable to only part of the citizenry and is not “° ° ° applicable alike to all citizens.”
In addition to violating section 12b of the Act, the defendant clubs’ policies also conflict with section 17 of the Bill of Rights of the 1970 Illinois Constitution, which prohibits discrimination in the sale and rental of property. I agree with the majority that the word “property” as used in that article encompasses both real and personal property, including liquor. However, I do not agree that the report of the Bill of Rights Committee and the remarks of a single Committee member, Delegate Lewis Wilson, both stating that the Committee considered but did not adopt a proposal to forbid discrimination by voluntary associations, means that the constitutional prohibition does not apply to the defendant clubs. The Committee’s failure to' refer to voluntary associations in the provision that was adopted does not warrant the conclusion that voluntary associations were granted blanket permission to discriminate in the sale of personal property.
Neither the Committee report nor the remarks of Delegate Wilson indicate the specific nature of the proposal on voluntary associations which was presented to the Committee. Thus, it is quite possible that the Committee members and delegates were content to forego a provision relating to voluntary associations because they regarded the proposal which actually was adopted as sufficient to prohibit discrimination in the sale of property by clubs such as the defendants. In addition, when Delegate Wilson referred to the possibility of “truly private clubs” providing housing for their own members, he said this sort of discrimination would be a logical exemption for the legislature to grant under the authority the discrimination provision gives the legislature to allow reasonable exemptions. Delegate Wilson thereby clearly indicated that even housing offered by truly private clubs — whatever a truly private club might be — for their own membership fell within the constitutional prohibition, and could not be offered on a discriminatory basis without specific legislative exemption.4 If, as the majority holds, clubs are exempt from the prohibitions against discrimination in the sale of food and liquor because of Delegate Wilson’s observations and the Committee report, does this not lead to the conclusion that no part of the discrimination prohibition applies to private clubs? This, in turn, would mean that the constitutional prohibition against discrimination in employment, also contained in section 17 of the Bill of Rights, would not apply to clubs. It is entirely illogical to interpret the discrimination prohibition to permit clubs to discriminate in employment policies while other employers are forbidden to do so.
The clear and simple words of the discrimination prohibition should not be obscured by the less precise statements of committees and delegates regarding provisions not adopted by the convention, particularly because in referring to what was not adopted the delegates could not anticipate that their remarks later would be seized upon to circumscribe the provision they did adopt. Whatever the deficiencies in the wording of the Act, the meaning of the Constitution is clear. There is no ambiguity in the language of the discrimination prohibition. The problem I find with the majority’s conclusion is that it dilutes the plain meaning of the constitutional prohibition to permit the defendant clubs, which occupy a significant position in the business and civic life of metropolitan Chicago, to exist as enclaves of discrimination. As long as women as a class cannot be served liquor or food sold in the defendant clubs, they are not free from discrimination in the sale of personal property on the basis of sex. And, regardless of what practices the defendant clubs have pursued in the past, women are wrongfully being denied a freedom guaranteed by section 17 of the Bill of Rights of the State Constitution — a guarantee adopted, in the words of the chairman of the Bill of Rights Committee, “for the first hours of tomorrow.” See E. Gertz, For the First Hours of Tomorrow: The New Illinois Bill of Rights (1972).
My interpretation of the Act does not infringe upon the right of associational freedom of the members of the defendant clubs. Section 12b of the Act regulates only the activities of liquor licensees with regard to the sale of liquor. The act does not prevent any club from being as arbitrary and discriminatory as it chooses to be, so long as it is not the holder of an Illinois liquor license. A State, as pointed out above, has the power to require licensees to adhere to nondiscriminatory policies as a condition of obtaining and keeping a State liquor license. See Ingraham.
Also, the right of associational freedom is designed primarily to protect freedom of speech and religion and the right to privacy in a political or religious context or in a marital relationship. (See NAACP v. Alabama (1958), 357 U.S. 449, 2 L. Ed. 2d 1488, 78 S. Ct. 1163; Griswold v. Connecticut (1965), 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678.) The defendant clubs are supported by memberships of more than 7,000 males. They exist in part to provide their members with dining and bar accommodations; to that extent, they serve the same function as restaurants. In many respects they serve as an important business facilitator, since business transactions frequently are discussed over the dining tables and at the bars of the defendant clubs. It would be naive to assume that a portion of the members do not either deduct their club bills as business expenses for income tax purposes or have an arrangement with their employers to pay those bills. Membership in the defendant clubs is a status symbol in the business and professional communities. Considering the important role of the defendant clubs in the business and professional activities of the Chicago metropolitan area, the application of the discrimination prohibition in the Illinois Constitution to their sale of food and liquor does not jeopardize any associational rights of their members guaranteed by the first amendment to the United States Constitution, or any right of privacy guaranteed by section 6 of the Bill of Rights of the Illinois Constitution.
My conclusion necessitates consideration of whether the Illinois Liquor Control Commission is a proper party to this suit. The Commission contends it should be dismissed aS a defendant in this suit, arguing that a declaratory judgment cannot be rendered against it because it had no present duty to act. The Commission’s analysis is incorrect.
First, the plaintiffs argue that section 12b presently prohibits the defendant clubs from holding liquor licenses, the Commission has a present duty to revoke their licenses, and by failing to revoke those licenses, the Commission has not fulfilled the responsibility delegated by section 12b to insure equal treatment for all Illinois citizens. That no court has ruled on the scope of section 12b in the context of this case does not mean that an actual controversy does not exist.
Second, the Commission’s argument that it has no present duty to act begs the question. The plaintiffs contend that section 12b places a present duty on the Commission to revoke the clubs’ licenses. They are not asserting that the Commission will in the future refuse to enforce section 12b, but rather that it is failing to fulfill a current duty. The plaintiffs allege this action was filed because the Commission did not meet its statutory duty to revoke licenses which still are effective. The Commission is, therefore, a proper party.
I would reverse and remand so that the extent of the discrimination practiced against women by the defendant clubs and the importance of those clubs in the business and professional pursuits of this community can be fully developed at trial.
Although the issue is not raised by this appeal, I also regard section 12b as prohibiting discrimination based upon a person’s national ancestry. See Ill. Const. 1970, art. I., §17, and Frontiero v. Richardson (1973), 411 U.S. 677, 687, 36 L. Ed. 2d 583, 592, 93 S. Ct. 1764.
The term “private club” has crept into some of the appellees’ briefs. In fact, the word “private” never appears before “club” anywhere in the Illinois Liquor Control Act.
Moreover, the Act has not had the long continued and consistent construction which People ex rel. Watson v. House of Vision (1974), 59 Ill. 2d 508, 514-15, 322 N.E.2d 15, states would make that construction of the Act only slightly less persuasive than a judicial construction. See also Radio Relay Corp. v. Commerce Com. (1977), 69 Ill. 2d 95, 370 N.E.2d 528.
The defendants argue that even if they are covered by the constitutional provision, they have been exempted from compliance with it by the provisions of section 2.24 of the Act. A statute passed long prior to the adoption of the Constitution cannot realistically be regarded as providing an exemption from the constitutional prohibitions, especially because the Bill of Rights grants privileges which the transition schedule for the Constitution provides shall be only prospective, instead of retrospective. Ill. Const. 1970, Transition Schedule, par. 2.