dissenting:
I dissent and would affirm the judgment of the appellate court. Under the authorities, the tax imposed by the ordinance is clearly an amusement tax, the enactment of which is authorized under the defendant’s home rule powers and is not a tax proscribed by article VII, section 6(e), of the Constitution of 1970.
In Reif v. Barrett (1933), 355 Ill. 104, upon which the majority relies for its definition of “occupation tax,” the court said:
“[A]n occupation tax has one of two missions: either to regulate and control a given business or occupation, or to impose a tax for the privilege of exercising, undertaking or operating a given occupation, trade or profession. Its effect is to license a person engaged in a given calling or occupation. A license in form may not be issued to a taxpayer but the payment of the tax is the license under the authority of the State to engage in such occupation. Regulation is not a necessary adjunct of an occupation tax. It may or it may not be. The payment of the tax itself is a condition precedent to the privilege of carrying on a business or occupation. The payment of the tax is made mandatory by the act creating it upon the right of the individual to follow the given occupation. An occupation tax may be levied under the general police powers of the State, where its purpose is to regulate or control a given occupation, or it may be levied under the general sovereign powers of the State, where its sole purpose is to raise revenue. Under which power it is levied makes no difference as to the character of the tax. The type of tax is not changed by any name that may be given it under the law through which it is enacted, neither is the test as to whether or not the occupation tax is the sole revenue or only a part of the revenue of the State.” 355 Ill. 104, 109-10.
Clearly the defendant was without authority to license or regulate the activity of operating a racetrack, and the tax here involved was not of the type contemplated in Reif. That the tax levied by the defendant village is an amusement tax and not a tax on an occupation is demonstrated by the fact that section 27 of the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1977, ch. 8, par. 37 — 27(f)), which now specifically authorizes the tax, provides:
“[A]ny municipality that has a Racing Board licensed horse race meeting at a race track wholly within its corporate boundaries may charge a local amusement tax not to exceed 10¢ per admission to such horse race meeting by the enactment of an ordinance.”
This tax is precisely like that which was upheld in Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, the only difference being that its applicability is limited to those who seek amusement by attending horse-race meetings. Further, it is indistinguishable from the tax upheld in Greater Chicago Indoor Tennis Clubs, Inc. v. Village of Willowbrook (1976), 63 Ill. 2d 400, which imposed an amusement tax on indoor tennis clubs.
Section 6(m) of article VII of the 1970 Constitution provides that the “Powers and functions of home rule units shall be construed liberally” and any doubts should be resolved in favor of a broad interpretation of defendant’s taxing power. To hold, as does the majority here, is to directly contravene the constitutional mandate.
UNDERWOOD and WARD, JJ., join in this dissent.