concurring in part and dissenting in part:
I am aware that the burden of proving classifications of a tax burden to be arbitrary and unreasonable is placed on the one who attacks the classifications (Williams v. City of Chicago (1977), 66 Ill. 2d 423, 433), and that the burden is a heavy one. The majority decision, however, effects two results: the burden is now an insurmountable one; and a court must go to any lengths in order to find classifications reasonable. The lengths gone to here defy reason, ignore the party bearing the incidence and burden of the tax, and contravene the 1970 Constitution.
There is no question that the “ultimate incidence of the tax [may be] imposed on the participant, observer or purchaser” of an amusement; in other words, an amusement tax may be levied on a consumer. (Board of Education v. City of Peoria (1979), 76 Ill. 2d 469, 474-75; and see cases there cited, including Jacobs v. City of Chicago (1973), 53 Ill. 2d 421, 424.) Clearly the ordinance attempts to do just that. The issue here focuses on the classes of amusement operators — “collectors” who are exempt from the burden of collection from the consumer-taxpayer. Section 2 of article IX of the 1970 Constitution provides:
“In any law classifying the subjects or objects of non-property taxes or fees, the classes shall be reasonable and the subjects and objects within each class shall be taxed uniformly. Exemptions, deductions, credits, refunds and other allowances shall be reasonable.”
This court has frequently stated that legislative bodies have very broad powers to establish reasonable classifications in defining the subjects and objects of taxation. (Williams v. City of Chicago (1977), 66 Ill. 2d 423, 432; accord, Klein v. Hulman (1966), 34 Ill. 2d 343, 346.) “The legislative determination as to those persons who are to be taxed and those not taxed must not be arbitrary [citation], and the classification must bear some reasonable relationship to the object of the legislation.” (Williams v. City of Chicago (1977), 66 Ill. 2d 423, 432.) “Such classification must, however, be based on real and substantial differences between persons taxed and those not taxed.” Klein v. Hulman (1966), 34 Ill. 2d 343, 347.
Despite the presumption of validity of such legislation (Williams v. City of Chicago (1977), 66 Ill. 2d 423, 432; Lehnhausen v. Lake Shore Auto Parts Co. (1973), 410 U.S. 356, 364, 35 L. Ed. 2d 351, 358, 93 S. Ct. 1001, 1006), I believe the plaintiffs have successfully rebutted that presumption. The ultimate incidence of the tax is on the consumer. (For that reason I agree with the majority that the tax is not on an occupation. Also, not everyone who presents an amusement for gain is necessarily in the occupation of producing or conducting amusements. (Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, 22.)) Because the consumer of the amusement bears the incidence of the tax (as well as the economic burden (see S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, 63)), I believe that the exemptions from the tax must be based on that class of taxpayer (and not on the collector-operator). In other words, classifications within the taxpaying group of consumers of amusement must “be based on real and substantial differences between persons taxed and those not taxed” (Klein v. Hulman (1966), 34 Ill. 2d 343, 347; People ex rel. Holland Coal Co. v. Isaacs (1961), 22 Ill. 2d 477, 481), and “must bear some reasonable relationship to the object of the legislation” (People ex rel. Holland Coal Co. v. Isaacs (1961), 22 Ill. 2d 477, 480). (Exemptions and classifications are separate concepts under section 2 of article IX of the 1970 Constitution. (Head v. Korshak (1976), 62 Ill. 2d 226, 229.))
The exemptions here are not reasonable as required by the Illinois Constitution (art. IX, sec. 2). The rationale in Board of Education v. City of Peoria, above, is helpful. In that case, the circuit court held that ordinances providing for an amusement tax (the successor to the ordinance at issue here) and a tax “upon the privilege of purchasing food or alcohol” were unenforceable against the school district and park district of Peoria. After carefully noting that certain exemptions from nonproperty taxes would apply to the school and park district (e.g., retailer sales made to governmental bodies are exempt from a retailers’ occupation tax, and governmental bodies are exempt from paying the use tax on personal property purchased at retail), we held that the districts were not free to disregard collection of the taxes at issue because they fell “on the consumer, and cannot be considered as taxes imposed on another governmental unit.” (76 Ill. 2d 469, 475.) As against the school district, however, we did hold that the tax ordinances constituted “an unauthorized regulation” contrary to section 1 of article X of the 1970 Illinois Constitution. (76 Ill. 2d 469, 478.) Had the tax incidence been on the districts themselves and a specific exemption existed on that basis, even though the economic burden would remain on the consumer (S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, 63), the districts would have been exempt from payment. That is the case here: had the incidence of the tax, which is controlling (52 Ill. 2d 56, 63), been on the operators or sponsors, the exemptions would be reasonable, even though the economic burden of the taxes is passed on to the consumer. The exemptions here simply have no nexus to the taxpayers.
If one views the question here as an attempt to classify the taxpayer or consumer, then the conclusion must be that the classification is unreasonable. There is no substantial difference — no difference whatsoever (except perhaps the intent) — between the taxpaying consumer of a movie at the Rialto and the nontaxpaying consumer of a movie sponsored by one of the exempt bodies in the defendant’s tax ordinance (Klein v. Hulman (1966), 34 Ill. 2d 343, 347). The classification of a consumer on the basis of what entity is amusing him or her is specious, especially if one considers whether there is a “reasonable relationship to the object of the legislation” (People ex rel. Holland Coal Co. v. Isaacs (1961), 22 Ill. 2d 477, 480). Here, according to testimony by the mayor of Peoria and the corporation counsel, the object of the amusement-tax ordinance was to raise revenue; and both the incidence and economic burden of the tax were on the consumers of amusement. Yet the consumer, classified as attending a nonprofit group’s movie, did not have to contribute to the city’s coffers. The city argues that the activities of nonprofit associations lessen the city’s burden of providing activities for the citizens and should therefore be encouraged by not requiring the associations to collect a tax from their patrons. This is not persuasive. I do not see how, so long as the tax and burden remain on the consumer, the nonprofit groups (or others “exempted” by the ordinance) would be harmed or discouraged from their good works. A taxpaying boxing enthusiast will attend a match (of equal caliber) whether sponsored by local, profit-seeking merchants or by the booster club of the local high school. The city also suggests that some of the “exempt” organizations might be incapable of actually collecting this tax. Overwhelming testimony, not refuted by the city, suggests the opposite.
I believe the “exemptions” set out in the ordinance, in its original form and as amended, are virtually inseparable from the ordinance as a whole. Moreover, because the ordinance required that the tax be collected “from the consumer at the time he [Le., the operator] collects the admission or participation fee charged for the amusement,” I must conclude the whole of the amusement tax ordinance is invalid under the Illinois Constitution (Ill. Const. 1970, art. IX, sec. 2).
I agree with the majority that the circuit court properly entered summary judgment in favor of the defendants on counts I and VI of the complaint. Testimony by the city’s mayor and corporation counsel evidenced that the ordinance was enacted for revenue purposes. It was within the circuit court’s competence to conclude the ordinance was not a special assessment. Plaintiffs’ argument that a basic human right to witness an amusement was violated is frivolous. They fail to show how, to cite cases or constitutional provisions, or to do anything more than say so in a 6V2-line paragraph. (Does the plaintiff suggest that property taxes violate the right to own property?)
For these reasons, I would affirm the judgment of the circuit court of Peoria County, and I concur in part and dissent in part.