Argued March 12, 1913. Decided April 7, 1913.
A classification of theatres for license fees based on, and graded according to, prices of admission is not arbitrary and unreasonable, even though some of the theatres charging the higher admission may have less revenue than those charging a smaller price of admission and hence paying lower license fees; and so held that the Chicago theatre license ordinance is not unconstitutional as a denial of equal protection of the law. There is a natural relation between price of admission and revenue that justifies a classification based on the former. This court will consider that a distinction between classes engaged in the same business that obtains in all large cities must be a substantial basis for governmental action in classifying those engaged in such business for taxation. The fact that a law may be faulty does not demonstrate its invalidity under the Federal Constitution; even though it may seem unjust and oppressive it may be free from judicial interference. Mere errors of government are not subject to judicial review by this court; and only a palpably arbitrary exercise of authority can be declared void under the Fourteenth Amendment. 246 Ill. 20, affirmed.
Mr. Alfred S. Austrian, with whom Mr. Levy Mayer was on the brief, for plaintiffs in error:
While classification is permissible in an ordinance imposing a license fee either for the purposes of regulation or revenue, the distinctions created by such an ordinance must bear some reasonable and just relation to the subject-matter of the classification, and to the proposed purposes of the ordinance; and if an arbitrary and improper classification is made, the ordinance cannot be sustained, as a person discriminated against by such an ordinance is deprived of the equal protection of the law, and suffers the deprivation of his property without due process of law. Cotting v. Kansas City Stock Yards Co., 183 U.S. 79; Southern Railway Co., v. Greene, 216 U.S. 400; Gulf c. Ry. Co. v. Ellis, 165 U.S. 150; Raymond v. Chicago Traction Co., 207 U.S. 20; Connolly v. Union Sewer Pipe Co., 184 U.S. 540; Farrington v. Mensching, 187 N.Y. 8; State v. Mitchell, 97 Me. 66; State v. Ashbrook, 154 Mo. 375; Chicago v. Netcher, 183 Ill. 104; Bailey v. People, 190 Ill. 28; Los Angeles v. Lankershim, 160 Cal. 800; Owen County v. Cox, 132 Ky. 738; 117 S.W. 296; City v. Wehrung, 46 Ill. 392; Wiggins Ferry Co. v. East St. Louis, 102 Ill. 560; Bessette v. People, 193 Ill. 334; Hibbard v. Chicago, 173 Ill. 91; Monmouth v. Popel, 183 Ill. 634; Zanone v. Mound City, 103 Ill. 552; State v. Sheriff, 48 Minn. 236; Lappin v. Dist. of Col., 22 App.D.C. 68; State v. Shedroi, 75 Vt. 277; Nichols v. Walters, 37 Minn. 264.
Mr. Charles M. Haft, with whom Mr. William H. Sexton was on the brief, for defendants in error:
The ordinance in question creates a reasonable classification and does not violate the Federal Constitution by depriving the complainants of the equal protection of the law or causing them to suffer the deprivation of their property without due process of law. Douglas v. People, 225 Ill. 536, 544; Bessette v. People, 193 Ill. 334; Heath v. Worst, 207 U.S. 338, 354; Hawthorn v. People, 109 Ill. 311; Tappon v. Merchants, 19 Wall. 490; State v. R.R. Tax Cases, 92 U.S. 601; State v. Central, 48 N.J.L. 106; Head Money Cases, 112 U.S. 580; Pacific Exp. Co., v. Seibert, 142 U.S. 339; People v. Iron c., 12 Colo. 369; Wehrung v. City, 46 Ill. 392; Travelers Ins. Co., v. Connecticut, 185 U.S. 364-371; Kochersperger v. Drake, 167 Ill. 122; Banta v. City, 172 Ill. 219; Marmet v. The State, 45 Ohio St. 63; In re Abel, 10 Idaho 288; State v. Montgomery, 92 Me. 433; Ex parte Heylman, 92 Cal. 482; Mechanicsburg v. Koons, 18 Pa. Sup.Ct. 131; Nashville v. City, 118 Ala. 362; Gamble v. City, 147 Ala. 682; Ex parte Lemon, 143 Cal. 558; State v. McKinney, 29 Mont. 375; Commonwealth v. Clark, 195 Pa. 634; Sworn v. Selser, 106 La. 691; Cowart v. City, 67 S.C. 35; Morgan v. Commonwealth, 98 Va. 812; City v. Newhall, 115 Iowa 55; Newton v. Atchison, 31 Kan. 131; Ex parte Sisto Li Protti, 68 Cal. 636; Voss v. Memphis, 9 Lea, 294; Howland v. Chicago, 108 Ill. 500; Smith v. Louisville, 6 S.W. 911; St. Paul v. Dow, 37 Minn. 20; St. Louis v. Bircher, 7 Mo. App. 169; Gibson v. Corapolis, 22 Pitts. L.J. (N.S.) 64; State v. Schlier, 3 Heisk. 281; S.C., 8 Heisk. 455; State v. Schoenhausen, 37 La. Ann. 42; Amader v. Kennedy, 70 Cal. 458; Tulloss v. Sedan, 31 Kan. 165; State v. Traders c., 42 La. Ann. 329; New Orleans v. Ponchartrain, 41 La. Ann. 519; State v. Liverpool, 40 La. Ann. 510; Ficklin v. Shelby, 145 U.S. 1; Ex parte Mount, 66 Cal. 448; Walker v. Springfield, 94 Ill. 364; State v. Hoboken, 41 N.J.L. 71; Fretwell v. Troy, 18 Kan. 271; St. Joseph v. Ernst, 95 Mo. 360; St. Louis v. Green, 70 Mo. App. 468; Kiliski v. Grady, 25 La. Ann. 576; State v. Rolle, 30 La. Ann. 991; Sacramento v. Crocker, 16 Cal. 119; Smith v. Louisville, 6 S.W. 911; New Orleans v. DuBarry, 30 La. Ann. 481; Webber v. Chicago, 50 Ill. 110; S.C., 48 Ill. 313; Littlefield v. State, 42 Neb. 223; McGrath v. Newton, 29 Kan. 364; Commonwealth v. Rearick, 203 U.S. 507; Rosenbloom v. State, 64 Neb. 342; Homes v. Ft. Smith, 93 F. 857; City v. Clark, 124 Ga. 254; City v. Bolton, 128 Iowa 108; Iowa v. Gilbertson, 129 La. 508; State v. Hammond, 110 La. 180; People v. Hotchkiss, 118 Mich. 59; In re Lipschitz, 14 N.D. 622; Commonwealth v. Muir, 180 Pa. 47; Commonwealth v. Clark, 57 L.R.A. 348; State v. Doherty, 2 Idaho 1105; State v. O'Hara, 36 La. Ann. 94; Osborn v. State, 33 Fla. 362; State v. Traders' Co., 41 La. Ann. 329; In re Watson, 17 S.D. 486; Hays v. Commonwealth, 107 Ky. 655; Danville v. Weaver, 17 Pa. Co., Ct. 17; State v. Webber, 214 Mo. 272; People v. Smith, 147 Mich. 391; City of Chicago v. Brownell, 146 Ill. 64; Quong Wing v. Kirkendall, 223 U.S. 59.
There is no provision in the Federal Constitution which forbids unequal taxation by the States. Davidson v. New Orleans, 96 U.S. 97, 106; Bells Gap v. Pennsylvania, 134 U.S. 232; Pac. Exp. Co. v. Seibert, 142 U.S. 339, 351; Merchants v. Pennsylvania Co., 167 U.S. 461; Coulter v. Louisville, 196 U.S. 599; Savannah R.R. Co. v. Savannah, 198 U.S. 392; Metropolitan v. New York, 199 U.S. 1; St. Louis v. Davis, 132 F. 629.
The attack of complainants (we so call plaintiffs in error) is upon the classification of the ordinance. It is contended that the purpose of the ordinance is to raise revenue and that its classification has no relation to such purpose and therefore is arbitrarily discriminatory, and thereby offends the Fourteenth Amendment of the Constitution of the United States. The character ascribed to the ordinance by the Supreme Court of the State is not without uncertainty. But we may assume, as complainants assert, that the court considered the ordinance as a revenue measure only. The court said: "The ordinance may be sustainable under the taxing power alone, without reference to its reasonableness as a regulatory measure." And, regarding it as a revenue measure, complainants attack it as unreasonable in basing its classification upon the price of admission of a particular theatre and not upon the revenue derived therefrom; and to exhibit the discrimination which is asserted to result, a comparison is made between the seating capacity of complainants' theatres and the number of their performances within given periods and the theatres of others in the same respects and the resulting revenues. But these are accidental circumstances and dependent, as the Supreme Court of the State said, upon the advantages of the particular theatre or choice of its owner, and not determined by the ordinance. It will immediately occur upon the most causal reflection that the distinction the theatre itself makes is not artificial and must have some relation to the success and ultimate profit of its business. In other words, there is natural relation between the price of admission and revenue, some advantage certainly that determines the choice. The distinction obtains in every large city of the country. The reason for it must therefore be substantial, and if it be so universal in the practice of the business it would seem not unreasonable if it be adopted as the basis of governmental action. If the action of government have such a basis it cannot be declared to be so palpably arbitrary as to be repugnant to the Fourteenth Amendment. This is the test of its validity, as we have so many times said. We need not cite the cases. It is enough to say that we have tried, so far as that Amendment is concerned, to declare in words, and the cases illustrate by examples, the wide range which legislation has in classifying its objects. To be able to find fault with a law is not to demonstrate its invalidity. It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible; the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void under the Fourteenth Amendment; and such judgment cannot be pronounced of the ordinance in controversy. Quong Wing v. Kirkendall, 223 U.S. 59.