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UNIVERSITY OF ILLINOIS BULLETIN

HOME RULE IN ILLINOIS

Final Report, Background Papers, and Speeches
ASSEMBLY ON HOME RULE IN ILLINOIS

Edited by Stephanie Cole and
Samuel K. Gove

THE INSTITUTE OF GOVERNMENT AND PUBLIC AFFAIRS

UNIVERSITY OF ILLINOIS

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HOME RULE IN ILLINOIS

Final Report, Background Papers, and Speeches

ASSEMBLY ON HOME RULE IN ILLINOIS

Harrison House, Lake Bluff, Illinois

April 5-7, 1973

Edited by Stephanie Cole and Samuel K. Gove

THE INSTITUTE OF GOVERNMENT AND PUBLIC AFFAIRS

UNIVERSITY OF ILLINOIS
OCTOBER 1973

C ^ ■' "}

^'/J- J FOREWORD

Illinois is the last large industrial state to adopt "home rule." The new
Illinois Constitution, eflfective July 1, 1971, includes a local government
article changing state-local relations characterized by tight state government
control over its localities to a relationship where the localities have great
freedom. In fact, the Illinois constitutional provision for home rule has
been described as one of the most liberal found in any state constitution.

The Institute of Government and Public Affairs, long-time participant-
observer in significant political and governmental developments in Illinois,
determined this change in state-local relations had such strong potential
impact on the state that it was worthy of close study. For this purpose, the
Illinois Home Rule Clearinghouse and Policy Analysis Project was organized.
As part of the project, the Institute's annual assembly, first held in 1958,
was in 1973 devoted to the issue of home rule.

As University of Illinois President John E. Corbally Jr. said in a state-
ment read at the opening of the assembly, "This conference will explore
'home rule' — a concept which implies local authority and which requires
local responsibility. The concept is crucial to our society and is badly in
need of reexamination."

This volume is the report of the Assembly on Home Rule. It includes
the assembly report, the speeches, list of participants, and background papers
prepared before the conference. The background paper authors were not
limited in the expression of their views and interpretations, which therefore
are their own. In some cases, the authors revised their papers significantly
after the assembly to include important post-assembly developments. John
Parkhurst prepared a new paper to replace an article that he had published
elsewhere immediately after the adjournment of the Sixth Illinois Constitu-
tional Convention.

We want to thank the paper writers, the participants, the home rule
project advisory group, and the Institute staff, all of whom contributed to
the success of the assembly. Special credit should go to Stephanie Cole,
the home rule project director. And finally we want to thank the state Office
of Planning and Analysis in Springfield for the financial support of the
home rule project, including the assembly, through a comprehensive plan-
ning grant from the U.S. Department of Housing and Urban Development.

Samuel K. Gove

Director, Institute of Government

and Public Aflfairs

DAVID C. BAUM
1934-1973

David C. Baum, professor of law at the University of Illinois at Urhana-
Champaign, died March 2, 1973, after a brief illness. Professor Baum was
an active and valuable member of the advisory group to the Illinois Home
Rule Clearinghouse and Policy Analysis Project; his thoughtful and imagi-
native guidance are missed. Professor Rubin G. Cohn spoke the following
words at a memorial service and at the Illinois Assembly on Home Rule:

It is surely not the length of years that measures the worth of a man.
David Baum's contributions to teaching, scholarship, government, public
service, community, and family, all within the span of less than four decades,
incontestably verify this truism.

I will touch briefly upon only two of his major achievements. In 1970,
David and I served the Sixth Illinois Constitutional Convention in similar
capacities — he as counsel for the Local Government Committee and I as
counsel for the Judiciary Committee. The product of the convention is now
the basic charter of the state. Among scholars, there is absolute consensus
that the local government article of the new constitution, particularly its
provisions establishing principles of municipal home rule, embodies the most
innovative, constructive, and far-reaching reforms in the state's history.
David was a major architect of that article. His two most recent publications
analyzing its provisions are and will remain among the most definitive and
influential of research sources for judges, legislators, lawyers, and students
of government. Those constitutional provisions now and for a long time
will constitute an exciting new model for other states to ponder, analyze,
emulate, and adjust.

Standing alone, David's contributions in this area have earned him recog-
nition and rank among the nation's foremost scholars in local government
law. They do not stand alone, however. Serving with a joint committee of
the Illinois State and Chicago bar associations, David played a major role
in drafting, and in securing legislative enactment in Illinois, of a compre-
hensive law detailing the respective areas of immunity and liability of local
governments and local governmental officials for injuries to private citizens.
The law brought a sense of enlightened order into what had been a chaotic
wilderness of conflicting and ambiguous principles. Here, too, his writings

have helped shape the course of judicial interpretation and continued
legislative policy.

There is much more, but in the few remaining moments I propose to
speak of David in a more personal view. By conventional criteria, David
was not a religious man. His commitment was not to the institution, the
organization, the structured, ritualistic forms by which most persons establish
a religious identity. Yet he was, indeed, a deeply religious person in the
most significant sense of that term. As a youngster, barely in his teens, he
had read Hillel's famous ethical and moral, and thus religious, pronounce-
ment. Hillel, the wise and gentle Hebrew philosopher, scholar, and teacher,
contemporary of Jesus, said: "If I am not for myself, who is for me? And
if I am for myself alone, what then am I? And if not now, when?" During
a service in a youth group, David spoke on that theme. It haunted and
possessed him. Then and there, he resolved that it would serve as his life's
credo. He and Alice, after their marriage, made a conscious, deliberate
pledge that their lives would be lived by Hillel's maxim. Know yourself,
your worth, your soul, your conscience; know the meaning of your life;
know your identity and purpose in the universe, your capacity for truth,
for love and goodness; then having achieved this threshold of wisdom, uni-
versalize it; extend it in word and deed, in thought and action to your fellow
man; not when convenient or comfortable, but now, today, every day, every
moment of your life. And so he lived his brief life in simple, graceful, and
eloquent loyalty to this commitment.

David was bom in the year that I received my law degree. Our paths
crossed and merged in 1963 when he joined the faculty. One complete
generation lay between us. Yet such was the harmony of his nature that it
transcended barriers of age, habit, and tradition. \Ve were friends the mo-
ment we became colleagues. And so it was with David and all his colleagues,
as it was with the staff and students of the College of Law. He was a very
human human being.

CONTENTS

FOREWORD iii

DAVID C. BAUM, 1934-1973 V

REPORT OF THE ASSEMBLY 1

BACKGROUND PAPERS 9

ILLINOIS HOME RULE IN
HISTORICAL PERSPECTIVE

Stephanie Cole 11

TWO YEARS LATER: THE STATUS
OF HOME RULE IN ILLINOIS

John C. Parkhurst 21

JUDICIAL DECISIONS INTERPRETING ILLINOIS
CONSTITUTIONAL HOME RULE PROVISIONS

Rubin G. Cohn 37

HOME RULE, PREEMPTION, AND THE
ILLINOIS GENERAL ASSEMBLY

Eugene Green 49

HOME RULE REFERENDA IN ILLINOIS

Susan B. Mack 61

HOME RULE AND LOCAL GOVERNMENT
FINANCE: AN ECONOMIST'S PERSPECTIVE

Robert N. Schoeplein 73

HOME RULE AND LOCAL GOVERNMENT
FINANCE: A LAWYER'S PERSPECTIVE

J. Nelson Young 89

IMPROVED LAND USE REGULATION FOR
THE HOME RULE MUNICIPALITY

Clyde W. Forrest 101

THE CHICAGO HOME RULE COMMISSION:
REPORT AND RECOMMENDATIONS

Allen Hartman 107

CITY POWER AND THE FEDERAL SYSTEM:
HOME RULE IN CONTEXT

Edward M. Levin, Jr 115

SPEECHES 127

THE NEED FOR POSITIVE
LEADERSHIP

Norman Elkin 129

SOME REFLECTIONS
ON HOME RULE

Edward AI. Kresky 141

AUTHORS 147

PARTICIPANTS AND STAFF 151

ILLINOIS ASSEMBLIES 157

REPORT OF THE ASSEMBLY

Participants in the Illinois Assembly on Home Rule meeting at
Harrison House, Lake Bluff, Illinois, April 5-7, 1973, approved
this summary of their findings at the conclusion of their discus-
sions. The findings of the assembly relate only to those matters
specifically discussed and are not put forward as a comprehensive
treatment of the issues which arise from home rule. Since there
were dissents on particular points, it should not be assumed that
every participant subscribed to every detail of the statements
contained herein.

The grant of home rule powers contained in the 1970 Illinois
Constitution was extremely significant for the state. The assembly
was convened to consider the challenge and the opportunity
created by the new home rule provisions, as well as related sec-
tions of the local government article.

Home rule is an important new constitutional principle. Its
full potential will be realized as local governments assume their
new responsibilities and powers, the state legislature clarifies its
new relationships to local governments, and the courts refine
the new distribution of powers.

Home rule is not a panacea for all the problems of modern
society, but it is an important tool for general local governments
to use in solving some of their most difficult problems more imag-
inatively and effectively.

Home rule cannot reach its full potential unless state and local
legislators, executives, and the general public are knowledgeable
about the content and meaning of this new concept. Public and
private bodies should devote time, money, and effort to wide-

range educational and informational programs. In addition to
informational efforts for the general public, groups possessing
legal expertise should prepare and widely distribute sample ordi-
nances, other governmental documents, and manuals for use by
home rule units, including a manual for the use of municipalities
and counties contemplating home rule referenda. It is hoped that
the presence and availability of well-drafted model ordinances
and other material will encourage a reasonable degree of volun-
tary uniformity of governmental action throughout the state,
where such uniformity is desirable for the solution of common
problems. The informational efforts should also include meetings
at which state and local officials can be briefed on the history
and current trend of home rule. Home rule units should continue
to expand current contacts and the exchange of information
which presently exists among them. Educational institutions at
all levels should teach about and encourage scholarly efforts on
home rule and intergovernmental relations generally.

Ill

There is a basic need for members of the General Assembly to
be made aware of the complex issues and policy alternatives in-
volved with the concept of home rule as defined by the 1970
Illinois Constitution. In addition, the General Assembly must
establish clearly defined procedures and ground rules to be fol-
lowed when dealing with home rule matters. In its enactment of
proposed legislation, the General Assembly should exercise more
precision in describing what home rule powers or functions the
legislation intends to deny, limit, or make exclusive to the state
by specifically so stating and by indicating the constitutional
majority needed for passage. The assembly recommends that the
members of the legislature be provided with a handbook on home
rule which reviews the basic legal questions and issues involved
and which describes the various policy alternatives open to the
General Assembly. The assembly further recommends that semi-
nars on home rule be held to acquaint members of the legislature
with the complex issues involved in Illinois's unique system of

home rule. Finally, the assembly recommends that the General
Assembly establish a procedure for the regular study and review
of the great variety of complex home rule questions by establish-
ing a home rule study commission, creating a "little ACIR"
(modeled after the federal Advisory Commission on Intergovern-
mental Relations) , or assigning the task of study and review to an
existing legislative commission.

The assembly recognizes that there are areas of legitimate
statewide concern which would justify preemption, limitation,
denial, or concurrent exercise of local governmental power. How-
ever, the state should not act in any such areas in the absence of
a compelling state need.

The assembly finds that the judicial response to local govern-
mental home rule enactments is generally favorable to the prin-
ciple of local autonomy but that a number of basic and
fundamental issues have not yet been presented to or resolved
by the Illinois Supreme Court.

The assembly further finds that the constitutional home rule
concepts so profoundly alter traditional principles of state-local
relationships that the judicial resolution of home rule issues, when
presented in the context of limited and narrow problems, may
result in the formulation of broad principles not in harmony with
the perspectives of the new constitutional philosophy. Accord-
ingly, it would be eminently desirable for the supreme court,
through its annual judicial conference and on a continuing basis,
to conduct an in-depth study of the intellectual, political, eco-
nomic, and other relevant aspects of home rule. This recommen-
dation would be presumptuous were it not for the fact that the
unique Illinois home rule provisions introduce novel and pro-
found principles involving complex issues of law and policy
which will test the wisdom and ingenuity of the court for years to
come. The development of a logical and sound jurisprudence in
this area will be extremely difficult at best. This recommendation

is designed to assist the courts in meeting the challenge of formu-
lating a rational policy which will most effectively reflect the
new principles,

There is a need for the state government to study the role and
needs of counties. The study should be designed to: a. provide
encouragement to counties to make use of the full scope of their
new powers, including the power to acquire home rule status;
b. recommend ways to strengthen county government administra-
tion in order to help bridge the gap between present structures
and the county executive form of government; c. recommend
ways to involv^e the community and county officials in educational
efforts prior to home rule referenda; and d. recommend legisla-
tion necessary to facilitate the above, including procedural im-
provements to the County Executive Act.

VII

The assembly recommends that the General Assembly autho-
rize that recodifications of the Illinois Municipal Code and the
Counties Act be drafted. Such recodifications should include
legislation separately applicable to home rule and non-home rule
units.

VIII

The assembly endorses the initial approach of municipalities
and Cook County in carefully implementing their home rule
powers while the parameters of home rule are being more pre-
cisely defined.

Home rule by itself cannot sohe problems of governmental
reorganization and reduction in the number of units of local
government, but home rule units are more easily able to assume
the functions of other governmental units than are non-home rule
units. A home rule unit has great diflficulty in assuming functions
of other units of local government, however, when the boundaries
of such units do not coincide with those of the home rule unit.

The assembly recommends that the General Assembly alleviate
this difficulty by addressing itself to such problems as the transfer
of assets and debts, procedures for boundary adjustments, and
such implementation, if any, as the courts may find necessary to
carry out the constitutional provisions for special service area
taxation.

There are serious social and economic problems, including
problems of land use, environmental protection, and equality of
opportunity, which cannot be solved by individual home rule
units acting alone. The assembly recommends that the state pro-
vide positive incentives to units of local government encouraging
their utilization of home rule powers and the constitutional pro-
visions for intergovernmental cooperation toward the solution
of regional problems and the provision of areawide services.

The assembly recognizes that home rule units have additional
revenue authority under the new constitution, particularly with
respect to local excise taxes, and realizes that this power may be
utilized to help finance essential services without disruptive eco-
nomic effects. The assembly also realizes, however, that the added
taxing powers granted home rule units are not necessarily ade-
quate to their needs. Moreover, the taxing powers of home rule
units, and indeed of all local governments, must be related to the
total fiscal structure of the state, because it is the state govern-
ment which can utilize more broadly based and equitable taxes.

BACKGROUND PAPERS

ILLINOIS HOME RULE IN HISTORICAL PERSPECTIVE

STEPHANIE COLE

Illinois is a state with a tradition of strong state control over local units
of government. The provisions for home rule contained in the Illinois
Constitution of 1970 represent a dramatic reversal in state-local relation-
ships, giving semiautonomous status to the larger municipalities, smaller
municipalities which vote to adopt home rule, and counties with elected
chief executive officers.

This paper presents a short history of the home rule movement in the
United States as it relates to the pre- 1970 situation in Illinois. The state's
home rule provisions as they emerged from the 1969-70 constitutional con-
vention are then compared with provisions in the constitutions of selected
other states and with model home rule provisions, thus placing home rule
in Illinois in a national context. Constitutional provisions for home rule vary
widely from state to state. Factors influencing the form of home rule
and the style of its application in each state include the traditional degree
of autonomy exercised by local units of government, the extent of legisla-
tive control over local affairs, and the trend of judicial interpretations of
state-local conflicts. "The issue of the constitutional framework for the legal
division of power between the state and its localities resolves itself into a
choice of the best approach to meet the needs and traditions of a particular
state."^

THE STATE AND ITS LOCALITIES

Local governments in this country are often said to be creatures of the
state, although in the pre-Revolutionary period local autonomy was the
rule. Colonial assemblies established the precedent for state control over
local governments by incorporating small existing rural communities and
by creating counties and townships to carry out administrative functions.
The states continued to create and regulate units of local government after
the Revolution, but a fair degree of local autonomy remained for almost
two centuries.

' Edward M. Kresky, "Local Government," in Salient Issues of Constitutional Re-
vision (New York: National Municipal League, 1961), p. 159.

There is no necessary inconsistency between local autonomy and legisla-
tive supremacy over units of local government. As pointed out by the Chi-
cago Home Rule Commission in 1954, the very establishment of a city by
the state implies the necessary grant of some powers of self-government to
the city. Thus, before the adoption of home rule in Illinois, municipalities
exercised a certain degree of self-rule by their choice among optional forms
of government. This is still the situation for non-home rule municipalities.

A state legislature may choose not simply to permit but to encourage
local autonomy. This was the case in the immediate post-Revolutionary
period. It was not until the latter part of the nineteenth century that state
legislatures began to control local powers and functions closely. Accelerated
urbanization and influxes of new immigrants, accompanied by demands for
public services, some created by the new technology, led to increased gov-
ernmental activity.

New local units — towns, cities, and villages — were incorporated by
the legislatures. State statutes prescribed municipal powers and functions
as well as the form of government of each local unit. The most minute de-
tails of local government operation became legislative concerns. A pattern
of annual pilgrimages to state capitols by local officials petitioning for special
enabling legislation on purely local matters became established. Often, offi-
cials from the larger municipalities did not find sympathetic listeners among
generally rurally oriented legislators.

Legislative supremacy and the dependent status of local government were
affirmed by judicial opinion. The best-known statement of this position was
made by Justice John F. Dillon of the Iowa Supreme Court. The following
passage from Dillon's A Treatise on the Law of Municipal Corporations
is known as Dillon's Rule :

It is a general and undisputed proposition of law that a municipal corporation
possesses and can exercise the following powers, and no others: First, those granted
in express words; second, those necessarily or fairly implied in or incident to the
powers expressly granted; third, those essential to the accomplishment of the de-
clared objects and purposes of the corporation . . . not simply convenient but in-
dispensable.^

A corollary of this position is the narrow interpretation of statutory grants
of power to local government. As Dillon noted, "Any fair, reasonable, sub-
stantial doubt concerning the existence of power is resolved by the courts
against the corporation, and the power is denied." Judicial decisions in Illi-
nois, as in other states, relied upon Dillon's Rule for the resolution of state-
local disputes, and rulings were generally in favor of the state.

^ John F. Dillon, A Treatise on the Law of Municipal Corporations, 5th ed.
(Boston: Little, Brown, 1911), vol. 1, sec. 237. Emphasis omitted.

LIMITATIONS ON LOCAL GOVERNMENT

One of the means by which municipal reformers attempted to restrict
legislative power during the late nineteenth century was constitutional pro-
hibitions against special or local legislation. The Illinois experience with
such a prohibition is an example of the ineffectiveness of this method in
altering the state-local balance of power.

The 1870 Illinois Constitution declared that so far as possible only
general laws equally applicable to all municipalities were to be enacted.^
The General Assembly evaded the intent of this restriction in several ways.
Through the device of classification by population, numerous statutes were
applicable only to "cities over 500,000 population," which meant Chicago,
the sole municipality in the state with a population over 500,000. These
statutes were generally upheld by the courts as long as they appeared rea-
sonable for the type of classification involved.

The state legislature also created many special purpose local govern-
mental units which by their responsibility for various functions limit the role
of general purpose local units. At least thirty-two kinds of special districts
operate in Illinois, including school districts (accounting for 1,177 of the
3,584 special districts in existence in the state in 1972),* hospital districts,
park districts, and mosquito abatement districts. Often the boundaries of
the special districts bear little or no resemblance to existing municipal and
county boundary lines. These districts may be created, changed, or elimi-
nated by the General Assembly. Recognition of the problems caused by the
complexity and multiplicity of special districts led the framers of Alaska's
constitution (1959) to declare that the purpose of the local government
article was to provide maximum self-government with a minimum number
of local governmental units. ^

Another way in which the Illinois legislature attempted to circumvent
the ban on special legislation was by a 1904 constitutional amendment
applicable only to the city of Chicago.^ Known as the Chicago little charter,
this amendment was intended to provide some home rule powers for the
city. The state legislature was given authority to grant powers to Chicago,
subject to approval by the city's voters. The establishment of the Municipal
Court in Chicago, various changes in the city's governmental organization,
and the granting of jurisdiction to the city over certain public utilities were
the only changes made under the 1904 amendment. No real home rule was

"Art. IV, sec. 22.

*U.S., Bureau of the Census, Census of Governments, 1972, Volume 1, Govern-
mental Organization (Washington, D.C.: GPO, 1973), p. 353.
* Art. X, sec. 1.
' 1870 111. Const., art. IV, sec. 34.

gained for Chicago because under the tenns of the amendment all initiative
was in the hands of the General Assembly.

HOME RULE ADOPTION

To restrict legislative power, municipal reformers also advocated home
rule. They argued that local self-rule could prevent legislative interference
in local affairs and lead to flexible, responsive municipal governments. The
first home rule provisions were in the form of state statutes. In 1851 Iowa
adopted what has come to be known as legislative home rule.' Legislative
home rule is difficult to identify; estimates of the number of states in which
it e.xists range from five to ten. In some of these states constitutional home
rule is also in effect.

The first state to grant home rule by constitutional means was Missouri,
which in 1875 gave any city with more than 100,000 inhabitants the right
to frame and adopt its own charter "consistent with and subject to the
Constitution and Laws of the state."^ Only St. Louis took advantage of this
provision initially. In 1889 Kansas City, the only other city in the state with
a population over 100,000, also adopted a home rule charter. It was not
until after 1947, when the population requirement was lowered to 10,000,
that thirteen other Missouri cities adopted home rule charters.

Home rule provisions of some sort are found in the constitutions of
approximately three-quarters of the states. Most of these constitutions in-
clude charter provisions as the means of implementing home rule. A charter
is essentially a "little constitution" by which a local unit is governed within
limitations imposed by the state constitution and by the charter itself. So
widespread are charter requirements that home rule has been defined as
the "authority of a city, under a state constitution and laws, to draft and
adopt a charter for its own government."^ The most recent constitutional
change taking account of this association was in Pennsylvania, where a 1968
amendment gave all municipalities (defined as cities, boroughs, townships,
and counties) the right to frame home rule charters or to choose among
several optional systems of government." In Pennsylvania, as in most states
with charter requirements, a lengthy process must be undergone by the
local unit before home rule status is achieved. This is the apparent reason
why many eligible cities have failed to adopt home rule charters. In Colo-
rado, for example, only twenty-two of the forty-six municipalities of over
2,000 population eligible for home rule had adopted charters as of 1962.

' Iowa Code, ch. 42 (1851).
' 1875 Mo. Const., art. IX. sec. 16.

° Arthur W. Bromage, "Home Rule as of Now," National Civic Review (July
1954), p. 2.

'"Art. IX, sees. 2 and 3.

Colorado, however, is considered among the leaders in charter adoption.
A survey conducted in 1968 found that home rule charter adoption appears
to be most widespread in Michigan, Texas, Ohio, Minnesota, California,
Connecticut, Oklahoma, Colorado, and Oregon. ^^

In a few home rule states charter adoption is not mandatory. For exam-
ple, home rule municipalities in New York are not required to adopt charters,
although local laws in some of these municipalities include provisions nor-
mally found in charters.

MODEL APPROACHES TO CONSTITUTIONAL HOME RULE

Two distinct model approaches to home rule are reflected in two ob-
servably different types of constitutional home rule. The first approach,
advocated in the Model State Constitiitioji of the National Municipal
League (N.M.L.) in its 1921, 1933, and 1948 editions, is that followed in
most of the early constitutional home rule provisions (Missouri in 1875,
California in 1879 as amended, Colorado in 1876). This model attempts
to create what has been termed an imperium in imperio, or a state within
a state. A locality is granted constitutional authority to frame and adopt its
own charter and to pass legislation on local matters. The state legislature
retains the power to enact laws on matters of statewide concern. Some con-
stitutions of this type also enumerate specific home rule powers. The assump-
tion under this model is that specific powers and functions can be allocated
to the various branches of government, and that local concerns can be
separated from state concerns. It has been necessary to rely upon judicial
interpretations of what constitutes a local concern. These interpretations
have varied from state to state, but often have been extremely conservative
in delineating matters of local concern, following Dillon's Rule. When
specific home rule powers are enumerated, these tend to be construed as
the extent of home rule power. Even in California, considered to be one
of the more successful home rule states, court interpretations have not re-
sulted in consistent criteria for what constitutes a local afTair.

The second approach, first advanced by the American Municipal Asso-
ciation (A.M.A.),^^ was developed partly in response to the problems in
delineating the powers of local government raised by the N.M.L. approach.
The constitutions of a few early home rule states such as Michigan and
Texas (by judicial interpretation) and most new constitutions since 1912
are examples of the A.M. A. approach. Under this plan, home rule units
may exercise any power not specifically denied them by their charters or by

" Kenneth E. Vanlandingham, "Municipal Home Rule in the United States,"
William and Mary Law Review 10 (1968) :282.

'" See Jefferson Fordham, "Model Constitutional Provisions for Home Rule"
(Chicago: American Municipal Association, 1953). The American Municipal Associa-
tion is now the National League of Cities.

general state law, thus reversing Dillon's Rule. Because of its emphasis upon
the role of the state legislature, the A.M. A. model has been termed legislative
supremacy, not to be confused with the legislative supremacy so prevalent
in the late nineteenth century and still in effect in non— home rule states.
The A.M.A. model is also described as the concurrent or shared powers
approach. Any home rule power, with certain exceptions, may be denied
or limited by legislative enactment of general laws; the same power may
be exercised concurrently by different levels of government. The legislature
must take positive action to prohibit home rule action, and in the absence
of specific action the locality has the power to pass local legislation. The
A.M.A. model is reflected in such new constitutions as those of Alaska
(1959) and Kansas (1961).

In the most recent edition of the Model State Constitution^^ the National
Municipal League substantially adopted the legislative supremacy approach,
retaining its previous imperium in imperio model as an alternative. The
major difference between the A.M.A. plan and the preferred N.M.L. plan
is that under the former plan local powers pertaining to governmental
structure, organization, procedure, and personnel cannot be denied or limited
by the state legislature. Under the new N.M.L. provisions no local matter
is exempt from state legislative action. The Advisory Commission on Inter-
governmental Relations in its 1967 State Legislative Program also recom-
mended a variation of the legislative supremacy model.

Proponents of the A.M.A. plan and its variations contend that in prac-
tice it is easier to block a legislature from acting to deny or limit powers
to a local unit than it is to obtain authority to perform additional govern-
mental functions. Through provisions for legislative denial and modification
of existing home rule powers, however, the state is granted flexibility with
which to meet regional needs when these needs are not being met by co-
operation among home rule (and non— home rule) units.

The A.M.A. plan calls for self-executing home nale, available to any
municipality by adoption of a charter. Self-executing home rule is given
as an alternative to mandatory legislative enabling action in the new N.M.L.
plan. Both plans require local charter adoption as the prerequisite to
home rule.

A diflferent kind of model approach was suggested by Rodney Mott in
1949.^* Mott suggested patterning the constitutional relationship of the
state and its localities after the federal-state division of powers outlined in
the United States Constitution. The localities would have all residual
powers, while state functions would be limited to those of statewide con-

"6th ed., 1963. revised 1968.

^* Home Rule for America's Cities (Chicago: American Municipal Association).

cern, specifically granted by the constitution. No state has employed this
model.

HOME RULE IMPLEMENTATION CLASSIFIED

Home rule provisions are frequently classified by their method of imple-
mentation. Usually judged most desirable are self-executing provisions.
Self-executing provisions exist when the constitution grants home rule and
provides sufficient procedural direction to enable the people of a locality
to take advantage of home rule without the necessity of enabling state legis-
lation. Next most desirable are mandatory provisions, which also assert the
home rule grant, but require the legislature to enact implementing pro-
cedural statutes. Least desirable among the forms of implementation are
permissive provisions, which leave the discretion of granting home rule
entirely to the state legislature. Although some claim that legislative imple-
mentation may help to foster a new climate for the conduct of state-local
relations, there is much to be said for the direct approach of the self-
executing grant. "Legislative disinclination to act has no practical cure in
'mandatory' states and none at all in 'permissive' states. "^^ Permissive pro-
visions mean that the state legislature rather than the constitution is the
real source of home rule power, and that legislative discretion dictates
whether there is to be any change in the state-local balance of power.

WHO GETS HOME RULE?

There is great variation among state constitutions as to which general
purpose units of local government are eligible for home rule status. Most
constitutional home rule provisions allow only cities to adopt home rule,
a situation partially attributable to the fact that the home rule concept was
originated by municipal reformers. In some states, villages or other small
unincorporated municipalities may also become home rule units. Other
states, however, limit the option to adopt home rule to cities meeting speci-
fied minimum population requirements.

A few states, increasing in number in recent years, provide for some
degree of county home rule in addition to municipal home rule. There has
also been a trend toward granting home rule to such general purpose units
of government as boroughs and townships, as in Pennsylvania. The Alaska
Constitution provides for the adoption of home rule charters by first-class
boroughs (counties) and first-class cities. In general, however, home rule
has been limited to cities.

The 1870 Illinois Constitution enunciated structural and fiscal powers

'^ John R. Kerstetter, "Municipal Home Rule," in The Municipal Year Book
1956 (Chicago: International City Managers' Association, 1956), p. 257.

of county governments in great detail, leading to severe restrictions on
county operations in these areas. In the absence of constitutional specifica-
tion, all other county functions rested with the state legislature, which tended
to perpetuate the counties' relatively weak status. This situation is not atypi-
cal of that in other states. Home rule has been extended to counties in only
a few states where metropolitan government is emphasized and where county
government is perceived as capable of going beyond its traditional adminis-
trative functions. Even in those states, home rule counties tend to have less
autonomy than do home rule municipalities, reflecting legislative lack of
confidence in the ability of county officials to manage their own afTairs and
the traditional role of the county as an administrative arm of the state.

HOME RULE PROVISIONS IN ILLINOIS AND OTHER STATES

A dramatic change in the state-local division of power in Illinois was
one of the important products of the 1969-70 constitutional convention. The
constitutional framework for home rule in Illinois — article VH, section 6 —
has been described by the chairman of the Committee on Local Government
at the 1969-70 constitutional convention as "more sophisticated and com-
prehensive than most state constitutions. . . . The home rule powers and
limitations are specifically delineated, and logically arranged. "^''' The struc-
tures of most of these powers and limitations were the result of compromises
among competing factions at the convention represented on the Local
Government Committee. The processes by which these compromises were
achieved have been described elsewhere.^' Here some of the characteristics
of Illinois's new home rule provisions as they relate to other constitutional
home rule provisions and to model provisions will be discussed. Let it be
noted only that among the major factors in the framing of the innovative
Illinois provisions were the absence of a preexisting local government article
and the consensus among convention delegates that home rule in some form
should be provided in the new constitution.

The basic A.M. A. approach of a broad grant of power to home rule
units is apparent in the home rule provisions adopted at the 1969-70 con-
vention. There was little attempt to adopt the allocated power, imperium in
imperio, approach of such older constitutions as that of Missouri. In Illinois,
subject to certain specific limitations, a home rule unit is given a broad
grant to "exercise any power and perform any function pertaining to its
government and affairs including, but not limited to, the power to regulate

"John C. Parkhurst, "Article VII- — Local Government," Chicago Bar Record
52 (1970) :98.

"See Thomas Kitsos, "State Constitutional Revision and the Urban Crisis: The
Sixth Illinois Constitutional Convention" (Ph.D. dissertation, University of Illinois,
1972), ch. 8. See also Parkhurst, "Article VII."

for the protection of the pubUc health, safety, morals and welfare ; to license ;
to tax; and to incur debt."^^ Similar grants are found in the constitutions
of such states as South Dakota, Massachusetts, and Arkansas, but none of
these is as comprehensive as the Illinois grant. For example, Massachusetts
specifically denies local units the power to tax and the power to incur debt.^"

Limitations on taxing powers of home rule units in Illinois are stated
in article VII, section 6(e). Except as the state legislature may provide,
home rule units cannot license for revenue, impose taxes upon or measured
by income or earnings, or tax occupations. Other means of revenue raising,
however, are within the purview of home rule units.

Neither model constitutional provisions nor provisions in the constitu-
tions of other states are as specific as is the Illinois Constitution in its unique
solution to the problem of balancing state and local power.-° Denial to the
home rule units of the right to exercise a power not exercised by the state
must be accomplished by a three-fifths majority vote in both houses of the
General Assembly. A three-fifths majority vote in both houses is also required
for the denial or limitation of a taxing power, other than the taxing powers
specifically limited in section 6(e). When the legislature deems an area to
be of statewide concern, however, it may pass a general law expressing state
exclusivity in this area by simple majority vote of both houses. The con-
current exercise of a power by both the state and home rule units is per-
mitted except as limited or declared exclusive by the legislature. Theoreti-
cally, almost any area may be preempted by the state, but the three-fifths
voting requirement will make preemption of powers not exercised by the
state and of taxing powers difficult.

Another innovative feature of the new Illinois Constitution is the absence
of any charter-making requirement for home rule units. A few other states,
notably New York and Massachusetts, provide for the exercise of home rule
powers by both chartered and nonchartered local units. In Illinois, however,
all municipalities of more than 25,000 population and any county with an
elected chief executive officer are automatically home rule units. Smaller
municipalities may adopt home rule by referendum, while counties provid-
ing for an elected chief executive officer also become home rule units. A
home rule unit may elect to revert to its former non-home rule status by
referendum. Thus the home rule provisions in the Illinois Constitution are
far more easily self executed than are the self-executing provisions in the
constitutions of other states. Complex charter adoption requirements often
mean that large numbers of eligible local units fail to become home rule units.

■'Art. VII, sec. 6(a).

'' Articles of Amendment, art. LXXXIX, sec. 7.

=" Art. VII, sec. 6(g), (h), and (i).

Section 6 of the local government article ends with an essentially horta-
tory statement: "Powers and functions of home rule units shall be construed
liberally."-^ Like similar exhortations in the constitutions of Alaska and
South Dakota, this statement is intended to indicate to the courts that Dil-
lon's Rule no longer applies to home rule units. The exhortation is also
directed at the citizens and officials of home rule units in Illinois, who are
encouraged to make creative use of their new powers.

" Art. VII, sec. 6(m).

TWO YEARS LATER: THE STATUS OF HOME RULE IN ILLINOIS

JOHN C. PARKHURST

Home rule is alive and well in Illinois. Courts and legislatures in other
states with older breeds of home rule have subjected the concept to radical
surgery and in these states a great deal of home rule's vitality has been lost.
Not so in Illinois.

Our young specimen is healthy and growing with confidence. It has been
nurtured by an infusion of federal revenue-sharing money. It has been
treated kindly by an indulgent legislature. The protections given to it in
the 1970 Illinois Constitution have not been broken down. If its first steps
have been gingerly taken, perhaps that is a sign of innate caution and re-
straint foretelling a long and successful life. Indeed, the period of infancy
has been encouraging. During the two years since the new constitution went
into effect, the careful planning by the doting parents of home rule at the
Sixth Illinois Constitutional Convention has paid off.

Knowing how the growth of home rule had been stunted in other states,
we tried hard at Con-Con to set forth self-executing, constitutionally-
granted powers that would not be dependent upon definition by the state
legislature or by local charter-making committees. We tried for a grant which
would minimize the role of the courts as the final arbiter in the conflicts
which would inevitably develop between local home rule ordinances and
state statutes.

When it came to setting forth in the constitution the extent of the power
to be granted to home rule units, two schools of thought were evident among
convention delegates. Some delegates advocated a system of near-sovereignty
for home rule units in order to protect these units, as far as possible, from
the power grabs of a hostile legislature and from the emasculating decisions
of conservative courts. Many other delegates, however, felt that a complete
devolution of autonomous powers to home rule units — including the pos-
sibility of a highly unpopular local income tax or payroll tax - — • would spell
the death knell of the proposed constitution. These delegates argued that a
constitution with such provisions would be overwhelmingly defeated by
Illinois voters. The ultimate compromise was a very broad expression of
home rule power, subject to certain specific limitations.

The power grant in article VH (the local government article), section
6(a), of the 1970 constitution is a blend of the general and the specific; the
language is probably the broadest in any state constitution. Subject to stated
limitations, "a home rule unit may exercise any power and perform any
function pertaining to its government and affairs including, but not limited
to, the power to regulate for the protection of the public health, safety,
morals and welfare; to license; to tax; and to incur debt."

Section 6 goes on to provide two kinds of limitations to this broad grant
of power. First, there are specific limitations spelled out in section 6(e)
with regard to the taxing power. These tax limitations are that a home rule
unit cannot (1) license for revenue, (2) impose taxes upon or measured by
income or earnings, or (3) tax occupations, unless the legislature grants
those powers. Thus, the more controversial kinds of local revenue-raising
powers are precluded for home rule units, and left to the infinite wisdom of
the General Assembly and to the unforeseeable vicissitudes of the future.
The door is closed, but it is not locked.

The second kind of limitation is included in the "preemption" provisions,
contained in section 6(g), (h), and (i). These sections attempt to spell out,
in a more specific way than in any other state constitution, the power rela-
tionship between the state and the home rule units. The intent is to reduce
to a minimum the vast gray area that has led to endless litigation in other
home rule states. In most of those states the courts have had to tackle the
difficult problem of defining what is a local power versus what is a matter
of statewide concern. Needless to say, without a preemption system that sets
up a means for solving conflicts between state statutes and local ordinances,
the courts tend to hold that the sovereign state wins. Thus home rule has
been rendered impotent in many states.

Our preemption system is more precise than any other. We avoided the
temptation of trying to write a "laundry list" into the constitution, as other
states have done, setting forth all the areas we could think of which were
of statewide concern, or, conversely, setting forth all the areas of local con-
cern. Indeed, we set forth a distinction in terms of the exercise of a govern-
mental power — whether by local ordinance or by state statute.

We decided to make it tougher for the legislature to deny the exercise
of a power by a home rule unit than to exercise the power itself. We wanted
to make it difficult for the legislature to pass a series of "no-no" bills, telling
city councils and county boards what they may not do. For the "no-nos,"
in section 6(g) we require a three-fifths majority vote in both the Senate
and the House of Representatives. We also require a three-fifths majority
in each house for the limitation or denial of a taxing power other than those
specifically limited in section 6(e) . Home rule units have a certain degree of

additional power to raise revenue as they see fit for their needs, without
easy invasion or limitation by the legislature. We agreed that home rule
without money is meaningless.

To balance the equation, however, in section 6(h) we permit the legis-
lature to take positive action to preempt a field it considers to be of state-
wide concern. The legislature may pass a law in which the state exercises
a power — does the job itself — by the traditional majority vote of both
houses. In section 6(i) we added one additional wrinkle, which represents
a realistic acceptance of the fact that some powers can be exercised con-
currently both at the state level and at the local level. Many license laws
fall in this category. Under present statutes, the holder of a liquor license
pays a license fee to both the state and the locality. There are many other
examples of "concurrency" in the exercise of governmental powers at both
the state and local level, and we have left it to the legislature to decide
whether the exercise of a power should be exclusive at the state level or
concurrent.

These three subsections of the local government article- — 6(g), (h),
and (i) — are loosely referred to as the preemption sections. They are the
heart of the home rule concept in Illinois. Through them, we threw the ball
to the legislature to shape and control the evolution of the system and to
resolve the conflicts. The late Professor David C. Baum, who was the Local
Government Committee counsel at the convention, put it this way:

The design of section 6 places great responsibility upon the legislature to ensure
that home rule does not degenerate into provincialism which could injure the people
of the state. The emphasis on legislative authority to limit home rule, plus the
specification of ways in which the legislature must act to assert its authority, makes
the Illinois home rule provision unique. Judicial limitations imposed on home rule
in other states should not be very persuasive in Illinois because of our unique ap-
proach to the problem.'

Having handed the ball to the legislature through 6(g), (h), and (i),
we hoped that the courts would sit on the sidelines and observe the game.
We realized, of course, that the courts would certainly have to get involved
in matters of interpretation, but in section 6(m) we asked them for liberal
construction of home rule powers when they did get in the game.

And so the first inquiry, after two years of experience, is to see how the
constitutional power grant has been interpreted by the courts and how the
legislature has used its preemption powers. An examination of the conditions
on both fronts is good news for the survival and growth of home rule in
Illinois.

' "A Tentative Survey of Illinois Home Rule (Part II) : Powers and Limitations,"
University of Illinois Law Forum (1972), p. 157.

THE POWER HAS PREVAILED

So far, the judiciary has indeed construed the home rule concept hber-
ally. In fact, in the first three decisions raising basic questions of home rule
power to tax and to incur debt coming down from the Illinois Supreme
Court, the score is three to nothing in favor of home rule powers.

The first case to come before the court after the new home rule powers
went into effect on July 1, 1971, involved the Chicago cigarette tax of five
cents a package, to be collected and remitted by the wholesalers selling
cigarettes to retailers in Chicago." The court upheld the tax, recited the
power grant to home rule units (section 6(a)), commented that it was to
construe home rule powers liberally (section 6(m) ), and found that the tax
was not on "occupations" (proscribed by section 6(e) ) because the Chicago
City Council had stated that the incidence of the tax was to be on the con-
sumer. Furthermore, citing the report of the Local Government Committee,
the court said that the taxing power granted in section 6(a) is not limited
to property taxes, but also includes privilege taxes and other non-property
taxes. All in all, a significant first victory for home rule.

Then came Kanellos v. Cook County,^ involving a $10 million bond
issue without referendum. The court upheld the home rule county ordinance
authorizing the bond issue, noting that a preexisting statute requiring a
referendum does not apply when a home rule unit adopts a subsequent ordi-
nance under its new powers. The court further said that if the legislature
now wishes to impose a referendum requirement on the bonding power of
home rule counties, it will have to muster a three-fifths vote (section 6(g) ) .
This decision put an end to the lingering doubts about the continuing effect
of limiting statutes enacted before home rule. Such statutes do not count
when a home rule ordinance which conflicts with a prior statute is adopted.
The ordinance prevails. Another significant victory for home rule.

Next was another decision involving a Cook County home rule ordi-
nance.* This was a taxing ordinance imposed on the purchasers of new-
cars. Since the tax was to be collected within municipalities as well as in
unincorporated areas of the county, Evanston and other home rule munici-
palities in Cook County decided to pass similar ordinances, relying on section
6(c)(1). The municipalities intended to collect the tax themselves instead
of having the money go to Cook County. The supreme court, however, had
other ideas. It held that 6(c) does not establish a system of preemption of
county ordinances by city ordinances, and cited the report of the Local
Government Committee to support the notion that 6(c) was to be only a
means of resolving conflicts and inconsistencies. Since both city and county

'S. Bloom, Inc. v. Korshak, 52 111. 2d 56, 284 N.E.2d 257 (1972).

"53 111. 2d 161, 290N.E.2d240 (1972).

'City of Evanston v. County of Cook, 53 111. 2d 312, 291 N.E.2d 823 (1972).

had the power to impose the tax, both were vaHd : there was no conflict and
both could collect the tax. The court said that this did not constitute double
taxation, and held that the power in 6(a) is not limited to non-property
taxes. (Needless to say, after this decision Evanston and the other munici-
palities made no eff"ort to collect their taxes.) In short, the court said that
the home rule taxing power was broad enough to let everybody — home
rule county and home rule municipality alike — use it, until the legislature
stopped them by a three-fifths vote.

The Bloom, Kanellos, and Evanston decisions appear to show that the
Illinois Supreme Court received our message to leave the ball in the hands
of the legislature. Moreover, the court has pointedly reminded the legislature
that it can stop the game at any time by a three-fifths vote. When called
upon to interpret, the court has indeed construed home rule liberally.

As a matter of fact, an unintended home rule power was granted by a
liberal interpretation of the court in City of Salem v. McMackin.^ In Salem,
the court approved the constitutionality of the Industrial Project Revenue
Bond Act, by which industrial revenue bonds are issued by municipalities
to attract new industrial projects and create jobs. The enabling statute
authorized municipalities to issue such bonds for projects located up to ten
miles from their boundaries. The home rule issue arose because somebody
had dutifully amended the bill in the legislature so that it applied only to
non-home rule units. Salem is a non-home rule municipality, and it could
clearly put up its new plant ten miles outside its boundaries if it so chose.
The court did not wish to put home rule units at a disadvantage in attract-
ing new industry. It said that although they were not covered by the
statute home rule units too could issue the new type of revenue bonds, even
as to the extraterritorial ten miles, under their home rule powers.

This judicial generosity led Justice Walter V. Schaefer to write a minor-
ity opinion. In his opinion Justice Schaefer quoted this author, who, among
other constitutional convention delegates, had confidently represented to
the convention that home rule carried with it no extraterritorial powers,
and that the legislature would still have to expressly grant such powers to
home rule units. Nevertheless, the court said that home rule units would be
acting in only a proprietary capacity outside their boundaries. The majority
opinion cited 6(m) as a reminder that the court was to construe home rule
powers and functions liberally. Thus, the court held that a home rule unit
could put a plant outside its boundaries, and pay for it with revenue bonds
even without statutory authority. Even the staunchest home rule advocates
at the convention did not realize that we had gone quite that far!

The court also showed a tendency toward liberal construction in Jacobs

= 53 111. 2d 347, 291 N.E.2d 807 (1972).

V. City of Chicago.'^ Chicago adopted a privilege tax under its home rule
powers providing that, with certain exceptions, the tax was to be paid for
"the use and privilege of parking a motor vehicle in or upon any parking
lot or garage" within the city. The parking lot operator's license could be
revoked if he did not collect and pay the tax. The question was raised
whether this did not constitute licensing for revenue, proscribed by section
6(c) unless the legislature authorizes it — and the legislature has not. No,
said the court, it was a tax, and not licensing for revenue. The fact that
the operator's license could be re\oked if he did not pay the tax did not
make it licensing for revenue. The possibility of revocation only ser\'ed to
insure the integrity of the collection procedure, said the court. Another
liberal construction, underscoring the obvious fact that home rule power
without money means nothing.

These first five cases were all "power" cases ■ — the court was interpreting
the scope of the grant of home rule powers, particularly in the revenue field.
It is obvious that the court construed this power ven' broadly — to the total
satisfaction of home rule advocates.

But, as the court can give, so can it take away. So far, the only limiting
interpretation of home rule power has come in Bridgman v. Korzen,'' where
the court followed the familiar and traditional judicial habit of trying to de-
fine and circumscribe "local affairs." In this case, Cook County passed an
ordinance providing for the payment of real estate taxes in four installments
instead of the two installments permitted by statute. The issue was whether
the county's ordinance, based upon its home rule powers set forth in 6(a),
was really the exercise of a power or the performance of a function "pertain-
ing to its [the county's] government and affairs." The court said no: the
county was acting both for itself and for other taxing bodies in collecting and
distributing taxes, and therefore the ordinance did not pertain primarily to its
affairs. (The little word "its" may turn out to be one of the most important
words in the constitution.)

In any event, the cases which I have discussed all involved situations
where the court was called upon to interpret home rule power, as set out
in section 6(a). In such cases, so far, the court has been about as liberal as
could have been expected.

There is another side of the coin. Besides the power granted in 6(a),
there is the matter of structure. The local government article was intended
to give new flexibility and local option to the matter of governmental struc-
ture— in home rule units (section 6(f) ) and non— home rule units (section
7(3) and (4) ) alike. Such matters as what officers to have were to be left

"53 111. 2d 421, 292 N.E.2d 401 (1973).
'54 111. 2d 74, 295 N.E.2d 9 (1973).

up to each unit. Some localities might want more officers, or fewer officers,
or different officers than in other places.

Acting under the structural flexibility provided for home rule units in
section 6(f), Cook County passed an ordinance creating the new appointive
county office of comptroller, and transferred to him the same powers which
the legislature had given to the Cook County clerk. In People ex rel. Han-
rahan v. Beck/ the supreme court said that the Cook County Board, acting
under its home rule powers found in 6(a), could transfer to its appointee
the powers and duties of a comptroller, "even to the extent that such exercise
conflicts with a statute enacted prior to the adoption of the 1970 constitu-
tion. . . ." Consistent, certainly, with the holding in Kanellos, and another
liberal construction in accordance with the constitutional request in 6(m).

Before we leave the judicial arena, and I restate my conclusion that the
power has prevailed so far as the first court tests of home rule are concerned,
I want to point to a couple of cases that are on appeal to the supreme court
from the lower courts, but have not yet been decided by the court. One such
case is Peters v. City of Springfield/' which involves a clear conflict over
home rule power. The city of Springfield passed an ordinance under its
home rule power requiring mandatory retirement for firemen in the munici-
pality at age sixty, in the teeth of a state statute making age sixty-three the
mandatory retirement age for firemen. The circuit court said that the pre-
existing statute prevailed, and that Springfield could not require a lower
retirement age. If the supreme court follows Kanellos and Hanrahan, it
would seem that the exercise of home rule power by an ordinance which
conflicts with a preexisting statute will prevail and that the circuit court
will be reversed. Predictions are perilous, however, and the case has other
facets which may permit the court to decide it on some ground other than
home rule power.

Incidentally, the audacity of Springfield in tampering with the retire-
ment age of its firemen and the threat of other home rule municipalities to
take similar action led to quite a battle in the last session of the legislature.
As I have emphasized above, the legislature always has the ball, and can
resolve any conflict it chooses. In this case. House Bill 345 was introduced
in the Seventy-eighth General Assembly on behalf of the firemen around the
state, who did not want the cities to lower their retirement age because it
would decrease their pensions. The bill was a pure preemption of home rule
power, as understood in section 6(g), and was understood to require an
extraordinary three-fifths majority vote to pass. The bill received this ma-

'54 111. 2d 561, 301 N.E.2d 281 (1973).

"No. 72-210 (Sangamon County Cir. Ct., Dec. 28, 1972).

jority in the House of Representatives and then ran straight into the opposi-
tion of the lUinois Municipal League. The league sent out a "red alert"
letter to all its members, warning them that the legislature was about to
preempt their home rule authority, labeling such temerity as "critical legis-
lative actions," and calling for "militant support." The battle was on, and
the home rule supporters won hands down. The bill never got out of com-
mittee in the Senate. The legislature had the ball, but did not want to do
anything with it. The supreme court will still have to decide the issue in
the Peters case.

Another case coming to the supreme court does not involve an interpre-
tation of home rule power under 6(a) . Rather, it involves the first real court
test of the legislature's power to preempt, and so it opens up a whole new
area of problems. A real collision course is underway, involving two circuit
court decisions in different counties that are diametrically opposed. The issue
involves the heart of the home rule system in Illinois — the unique pre-
emption system devised in section 6(g), (h), and (i). For that reason, I
shall discuss the legal issues presented by these two cases in the next section
of this paper, which deals with the subject of legislative preemption.

THE PREEMPTION PUZZLE PERSISTS

While the supreme court has been busily blazing a trail through the forest
of home rule questions in Illinois, the puzzle that has surrounded the pre-
emption provisions in the new constitution (article VII, section 6(g), (h),
and (i) ) still persists. Neither a well-defined policy in the legislature nor a
clear-cut understanding of how the legislature is going to preempt home
rule powers and functions has yet emerged.

As I showed above, the supreme court has permitted home rule powers
to prevail without being substantially watered down by court decision. In
addition, several times the court has reminded the legislature that it has the
ball, just as we intended at Con-Con. But the legislature has not been per-
suaded to do much \vith the ball.

Not a single pure preemption bill (I refer to a 6(g) variety requiring a
three-fifths vote), so labeled and understood, has passed in over two years!
As a matter of fact, the legislature has bent over backwards to avoid inad-
vertent preemption, which might be thought to occur if a bill passes by a
three-fifths vote and is later found to contain an unnoticed limitation of
home rule power. To avoid this embarrassing possibility, the legislature has
taken to adopting — almost as a matter of course — an amendment to any
and all bills which might be thought to afTect home rule. This is familiarly
known as the "home rule amendment." This ubiquitous home rule amend-
ment is very short and simple. It merely states that the bill in question does

not apply to home rule units. ^° By now, it is almost a ritual, and goes on
a bill without debate or serious consideration. In some cases - — • such as the
Industrial Project Revenue Bonds Act, which resulted in the Salem case —
the amendment takes power away from a home rule unit, rather than pre-
serving it.

The now-common practice of adding the home rule amendment to bills
illustrates the concern of the legislature that an unintended preemption
should not occur. The amendment is designed to prevent a misinterpretation
of what the legislature really means to do. This seems to be all to the good,
and a similar attempt to state clearly what the governing body has in mind
is also occurring at the local level, in many municipal ordinances that are
based upon the new home rule powers. ^^ So both the legislature and many
of the local governing bodies of home rule units are trying to avoid mis-
interpretations by attaching the proper label to their enactments: in the
legislature by the disclaimer of the home rule amendment, in the city coun-
cils by the affirmative recitation of constitutional home rule powers.

This emphasis on labeling has created some difficulties in the legislature,
where sometimes the members cannot all agree upon the right label. Under
House Rule 4(g), it is the duty of the speaker to decide on points of order,
subject to appeal, and, under 4(h), to inform the House "on any point of
order or practice pertinent to the pending business."

^^ The following examples of the home rule amendment are taken from bills intro-
duced at the legislative session just concluded. In Senate Bill 51, the language in
amendment 1 was "this Amendatory Act of 1973 does not apply to any municipality
which is a home rule unit." Another form was in amendment 1 to S.B. 157, which
read, "this Amendatory Act of 1973 is not a limit upon any municipality which is a
home rule unit." In S.B. 483, the home rule amendment was built into the bill as
filed. Section 37 provided in part, "this Act is not a limit upon any home rule unit."

" This desire of a city council to spell out its intent to act under home rule is
illustrated by the language in the following sampling of local ordinances:

Champaign. In ordinance number 1128, passed July 5, 1972, authorizing the
acquiring of property by purchase or lease: "Whereas, the City of Champaign is a
home rule unit by virtue of the provisions of the Constitution of the State of Illinois
of 1970; and whereas the City, as a home rule unit, may exercise any power and per-
form any function pertaining to its government and affairs, including the power to
incur debt. . . ." In ordinance number 1143, adopted September 5, 1972, amending
the Illinois Local Library Act: "Whereas, under the provisions of the Illinois Consti-
tution of 1970, the City of Champaign, Illinois is a home rule unit, and whereas, as
a home rule unit it may exercise any power and perform any function pertaining to its
government and affairs, including the power to tax and, whereas, it is the desire of
the Council to adopt the Illinois Local Library Act by reference, except the changes
hereinafter set forth. . . ."

Park Forest. In ordinance number 857, adopted June 12, 1972, levying a
property tax for general corporate purposes: "This Tax Levy Ordinance is adopted
pursuant to the procedures set forth in the Illinois Municipal Code, provided, how-

House Rule 70 provides for the recording of dissents; several dissents
have been filed against rulings by the speaker on whether a given bill would
require a three-fifths vote for passage (i.e., whether it was a "preemption"
bill under section 6(g) or an "exclusive exercise" bill under 6(h)). Such a
situation occurred in the last session of the General Assembly, when the
House passed bill 1313 (Public Act 78-729) , which amended the law relating
to public notices. The speaker had been asked to rule on how many votes
would be required for passage, and he ruled that it would take only a simple
majority of 89 votes, rather than a three-fifths majority of 107 votes. Repre-
sentatives Gerald W. Shea and Benedict Garmisa then submitted a written
dissent. The dissent claimed that the bill was a limitation of home rule
power because it attempted to make certain procedures of home rule units
subject to state regulation by only a majority vote. According to the dissent,
under section 6(g) a three-fifths vote is required to impose any such limiting
procedures on home rule units.

The pitfalls of the labeling process in that instance were further com-
plicated by the fact that the H.B. 1313 did receive more than a three-fifths
vote. The dissenters said that this was irrelevant because the speaker had
ruled that only a simple majority was required. Since the speaker's ruling
was determinative, if he had made a mistake and attached the wrong label
to the bill the improper ruling would not be cured, no matter how many
votes the bill ultimately received.

The dissent process began to pick up steam during the last legislative ses-
sion. A dissent similar to that written for H.B. 1313 was filed to the speaker's
ruling on H.B. 1050 (P.A. 78-458). Both H.B. 1313 and H.B. 1050 passed

ever, any tax rate limitation or any other substantive limitations as to tax levies in
the Illinois Municipal Code in conflict with this Ordinance, shall not be applicable
to this Ordinance pursuant to Section 6 of Article VII of the Constitution of the
State of Illinois."

Peoria. In ordinance number 9143, adopted July 6, 1972, relating to the demoli-
tion or repair of dangerous and unsafe buildings: "Notwithstanding any of the laws of
the State of Illinois to the contrary, and pursuant to Article VII, Section 6 of the
Illinois Constitution of 1970, Section 8-123 of Chapter 8 of the Peoria City Code,
1957, is hereby stricken in its entirety and in lieu thereof, the following Section 8-123
is added to Chapter 8."

Wheaton. In ordinance number E-1214, adopted September 18, 1972, amending
an annexation agreement in the city code: "The City, finding itself to be a home rule
unit under the Illinois Constitution of 1970, does herewith exercise a power pertain-
ing to its government and affairs, and does declare that the restriction found in Divi-
sion 11-15.1-1, Chapter 24, Illinois Revised Statutes, 1971, limiting the term of annex-
ation agreements to a period not to exceed a period of five years from the date of its
execution, to be of no force and effect as it may or purports to apply to the City of
Wheaton. The City does hereby determine that it may enter into an annexation agree-
ment under this Chapter 6 of its ordinances for a period of not to exceed twelve
years from the date of execution thereof."

both houses of the legislature, but the dissents to the speaker of the house*s
rulings may present an interesting legal question which will determine the
validity of similar bills.

In the above-mentioned bills the speaker ruled that only a majority vote
was needed; the dissenters thought that a three-fifths vote should have been
required because a 6(g) limitation was involved. The reverse twist, however,
also occurred. In House Bill 687, which was a bill to establish a statewide
medical examiner system, the speaker initially ruled that only a simple
majority of 89 votes was required for passage. Subsequently the speaker
changed his mind and ruled that a three-fifths vote (107 votes) would be
required, apparently on the theory that a limitation of home rule power was
involved and that H.B. 687 was a preemption bill under section 6(g) of
the constitution. When the bill received only 92 votes, it was declared lost.
Supporters of the bill then filed a written dissent contending that the bill
did not involve a 6(g) preemption at all, that the speaker's second ruling
was wrong, and that the bill should have been declared passed by the simple
majority which it received. So the "label" is always subject to challenge,
whichever way it goes.

The practical necessity of "labeling," of determining in advance how
many votes a bill needs for passage (whether a majority under 6(h) or 6(1) ,
or three-fifths under 6(g) ) , has been recognized in some instances before the
issue is ever presented to the chair for a ruling. Some bills have set forth
the specific intention of the sponsors in the body of the bill. Thus the pos-
sibility of an erroneous ruling by the chair, a written dissent, and subsequent
litigation is eliminated.

No bill stating that It is brought pursuant to 6(g) , and therefore requires
a three-fifths vote, has passed, although a number of such bills have been
introduced. ^^ Other bills have stated that they are brought pursuant to 6(h)
and (I), as an exclusive exercise of power by the state, and that therefore

" For example, in the last legislative session House Bill 345, mentioned previously
in this paper, attempted to make certain statutes dealing with boards of police and
fire commissioners applicable to all municipalities, including all home rule municipali-
ties. The bill contained the following section: Sec. 10-2.1-31. Public Policy. It is de-
clared to be the public policy of this State, pursuant to paragraph (g) of Section 6
of Article VII of the 1970 Illinois Constitution, that this Division of this Article of
this Code is applicable to all municipalities in this State including home rule mu-
nicipalities.

Slightly different language specifying section 6(g) was included in House Bill 566,
which tried to extend sections of the statutes to cover civil service employees in all
municipalities other than Chicago. It read as follows: Sec. 10-2.1-31. This Division
imposes a limit under subsection (g) of Section 6 of Article VII of the Constitution
upon the power of municipalities having fewer than 1,000,000 inhabitants in relation
to the functions covered by this Division.

only a simple majority is needed for passage. ^^ The most celebrated bill of
that variety passed amid much fanfare in 1972. That was the highly contro-
versial House Bill 3636 (P. A. 77-1818), now being contested in the courts,
and on its way to the supreme court for the first basic decision involving
the heart of the home rule concept in Illinois — the preemption provisions.
House Bill 3636 was passed on October 1, 1972.^* It provides in part
that "pursuant to paragraph (h) of Section 6 of Article VII of the Consti-
tution of 1970, the power to regulate any profession, vocation or occupation
for which licensing or registration is required by any of the Acts hereinafter
listed in this Act, shall be exercised exclusively by the State and may not
be exercised by any unit of local government, including Home Rule units."
H.B. 3636 passed the Senate with only a majority — • not a three-fifths —
vote, although it got three-fifths in the House. ^^

" The sponsors of House Bill 66 in the last legislative session wanted to make
certain provisions of the IlHnois Vehicle Code uniform throughout the state, and to
prevent home rule units from passing ordinances to vary the appHcation of the
Illinois Vehicle Code. They considered their bill to be an exercise of power under
6(h), and they wanted it to be exclusive. (The author questions the assumption that
the state was really "exercising" a power under the provisions of the Illinois Vehicle
Code.) The attempt to apply the 6(h) and (i) label to H.B. 66 read as follows:

(c) The provisions of this Chapter shall be applicable and uniformly applied and en-
forced throughout this State, in all other political subdivisions and in all units of local
government.

(d) Pursuant to paragraphs (h) and (i) of Section 6 of Article VII of the Constitution
of 1970, the powers and functions exercised by the State under this Chapter are ex-
clusive, and such powers and functions may not be exercised by any unit of local
government, including home rule units, except as provided for in Sections 15-111, 15-
301 and 15-316 of this Act, as amended.

A slightly different version of the reference to subsections (h) and (i) in the
body of the proposed statute occurred in House Bill 67, another attempt to make
certain provisions of the Illinois Vehicle Code applicable to all municipalities, includ-
ing home rule units: Sec. 18-103. Uniformity and Preemption. Pursuant to para-
graphs (h) and (i) of Section 6 of Article VII of the Constitution of 1970, the powers
and functions exercised by the State under this Chapter are exclusive, and such
powers and functions may not be exercised by any unit of local government, including
home rule units unless specific provision for local governmental exercise of such power
or function, in whole or in part, is provided for by a provision of this Chapter.

The provisions of this Chapter of this Act, as amended, shall be applicable and
uniformly applied and enforced throughout this State, in all other political subdivisions
and in all units of local government.

^"111. Rev. Stat., ch. 127, sees. 901-03 (Supp. 1972).

'^ A nice question would arise if a bill labeled a 6(h) actually passed by three-
fifths vote of both houses and if the court later said the bill should have been treated
as a 6(g). Query: would the label or the actual vote control? To the effect that the
label controls, no matter how many votes it gets, is the United States Supreme Court
decision of Powell v. McCormack, 395 U.S. 486 (1969) (cited in several of the
House dissents). That celebrated case involved the ruling of House Speaker John
McCormack on the resolution to exclude Adam Clayton Powell from the United
States House of Representatives.

Among the professions and vocations covered by H.B. 3636 were real
estate brokers, who were Hcensed by the state and also locally licensed and
regulated by many Illinois municipalities. The real estate brokers of Illinois,
as a class, filed a suit in Champaign County seeking a declaratory judgment
to void the ordinances of all the municipalities in Illinois which license and
regulate real estate brokers.^*' The plaintiffs contended that the passage of
House Bill 3636 made such ordinances invalid. The defendant municipalities
challenged the constitutionality of the bill. They argued that the bill was a
section 6(g) preemption and that therefore it required a three-fifths vote
for passage, despite the statement contained in the bill itself asserting that
it was brought "pursuant to paragraph 6(h)." The court said that the bill
was not a 6(g) preemption and that it was valid and constitutional. An
injunction was issued restraining all Illinois municipalities, as a class, from
enforcing their ordinances licensing and regulating real estate brokers. In
short. House Bill 3636 was upheld in the Champaign County Circuit Court.

The bill had a different fate in Cook County. There, Evanston, Chicago,
and other home rule municipalities challenged the constitutionality of House
Bill 3636.^" Among the claims of the plaintiffs was that H.B. 3636 was a
6(g) type of preemption and thus required a three-fifths majority vote in
both houses of the legislature for passage. The bill did not receive this vote.
On July 23, 1973, the Cook County Circuit Court issued a decision holding
that House Bill 3636 was unconstitutional for several reasons, one of which
was that the bill required a three-fifths majority vote in each house but
had not received such a vote. The circuit judge went so far as to conclude
that "any bill denying a home rule unit a power or function and giving it
exclusively to the state must either be enacted by a % vote majority or it
cannot be enacted at all." To leave no doubt at all about what he thought,
the judge also stated that section 6(h) was "absolutely inconsistent with
Sec. 6(a) as is Sec. 6(i)," and that to hold that House Bill 3636 was con-
stitutional would be to vest licensing power exclusively in the state and
"make ... a mirage of the principle of Home Rule."

Both the Champaign County decision and the Cook County decision are
on the way to the supreme court, which will have to decide the ultimate
fate of House Bill 3636. In so doing, the court will probably decide the
ultimate fate of sections 6(h) and (i). Needless to say, the Local Govern-
ment Committee and the constitutional convention did not consider 6(h)

" Johnson v. City of Urbana, no. 72-G-945 (Champaign County Cir. Ct., June
29, 1973).

" City of Evanston v. Dep't of Registration and Education of the State of Illi-
nois, no. 73-L-7377 (consolidated with Fuehrmeyer v. City of Chicago, no. 72-CH-
7115) (Cook County Cir. Gt., July 23, 1973).

and (i) a "mirage," and did not conceive of those sections as being "abso-
lutely inconsistent" with the grant of home rule power.

When the supreme court decides that fate of H.B. 3636 some light will
be shed on the puzzle o\er preemption in Illinois. Either we will move toward
a system where any interference with home rule powers by the state will
take a three-fifths vote (thus making 6(g) the only significant preemption
section) or we will retain for the state the right to exercise any power it
wants (except for revenue) by a simple majority vote, declaring the power
exclusive under 6(h) and thus denying it to home rule units. Again, pre-
dictions are perilous, and no one knows what the court will do, but it can
certainly be said that the committee and the convention envisioned an
interpretation which would leave some life in 6(h), and not strike it dead.^®

Until the preemption puzzle is better illuminated by the court, we cannot
put all the pieces together. We can, however, draw some conclusions from
what the legislature has done with preemption so far. The net result seems
to be a clear victory for the advocates of home rule. Not a single 6(g) pre-
emption bill has passed the legislature in the two years since home rule
went into effect, which means that the new system has not produced the
kind of serious abuses which the preemption provisions allow the legislature
to control.

Neither has there been a movement in the legislature to exercise new
powers and to declare them exclusive to the state under 6(h). Except for
H.B. 3636, the legislature has not tried to take powers and functions away
from the local home rule units by occupying the field itself. There has been
no competition between the state and the home rule units to fill vacuums
and find new governmental services to perform. Certainly, the process of
identifying, classifying, and labeling the powers exercisable under the new

"Besides the possible demise of section 6(h) and (i) in the supreme court con-
sideration of House Bill 3636, another storm cloud is gathering over the preemption
concept in the new constitution. I refer to the increasing number of bills in the legis-
lature which attempt to impose uniform standards and procedures upon all Illinois
municipalities, through minimum standards in such areas as public notices and open
meetings. The question will soon arise whether such "limitations" on home rule units
should be considered 6(g) preemptions — -and thus require a three-fifths vote for
passage — or whether they will be interpreted by the court as matters of statewide
concern, not pertaining to local government and affairs — enactable by a simple
majority vote — and therefore not an interference with home rule powers. The Com-
mittee on Local Government anticipated this storm cloud, and in a section of its report
recommended to the convention a provision which would permit such uniform
standards and procedures to be enacted by a majority vote. That section of the report
was stricken on the floor, however, and three attempts to put it back into the final
document were beaten down by the advocates of strong home rule. It would be
strange, indeed, if the convention, by insisting on the deletion of that provision, forced
the court to attempt to define local powers versus state powers, the very problem
that has led to the emasculation of home rule by the judiciar>' in many states.

constitution has been undertaken in an orderly manner by both the legisla-
ture and the home rule units."

All in all, from the friendly court decisions, the hands-off posture of the
legislature, and the self-restraint of the local governments themselves, it must
be said that the first two years of home rule in Illinois have been encour-
aging. From this early vantage point, it would seem that the mission has
a good chance of succeeding where so many others have failed. Home rule
may be an idea whose time has finally come; it appears to be alive and
working in Illinois.

"A recent Illinois Supreme Court decision (Rozner v. Korshak, no. 45689 (III.
Sup. Ct., Sept. 25, 1973)) upholding the constitutionality of Chicago's wheel tax
ordinance commented on the desirability of identification by the legislature of those
bills intended to deny or limit home nde units: "The ... inadvertent restriction of
the authority of home-rule units . . . can be avoided if statutes that are intended to
limit or deny home-rule powers contain an express statement to that effect." The court
is telling the legislature that it will not consider a bill to be a preemption, even though
it passes by a three-fifths vote, unless the bill is properly labeled, so that the intent to
preempt is clear.

The Rozner decision, incidently, is noteworthy for another reason. It is another
example of a liberal interpretation of home rule power. The Chicago wheel tax ordi-
nance, requiring a special city license and the payment of a fee to the city based upon
the horsepower of the vehicle, was challenged as being "licensing for revenue" (pro-
hibited by section 6(e)). The court said that the wheel tax ordinance was not
licensing for revenue, and the city of Chicago did not attempt to tax under the guise
of its power to regulate. Mr. Justice Schaefer, who wrote the opinion, said that
Chicago's " 'Wheel Tax License' ordinance is frankly a taxing measure . . . and is
within the power of the City under section 6(a) of article VII."

JUDICIAL DECISIONS INTERPRETING ILLINOIS
CONSTITUTIONAL HOME RULE PROVISIONS

RUBIN G. COHN

Bishop Benjamin Boadly, English cleric of the late seventeenth century,
was one of the earliest civil and religious libertarians with the audacity to
challenge the authoritarianism of the Church. In one of his polemics Bishop
Boadly uttered a dictum of such truth that it has been quoted in numerous
treatises dealing with the interpretation of constitutions and statutes :

"Nay," said the bishop, "whoever hath an absolute authority to interpret any
written or spoken law, it is he who is truly the law giver to all intents and purposes,
and not the person who first wrote and spoke them."

Much later, Chief Justice Charles Evans Hughes of the United States
Supreme Court stated, in a phrase which has been much distorted and
wrenched from context, but which nevertheless expresses the same truth :
"The Constitution is what the Court says it is."

So stated, the principle is one of polarity. Constitutions and statutes, of
course, seek to express meaning and purpose. Unavoidably, particularly in
constitutions, the policies are embodied in words of abstract and generic
scope which defy exactitude of intent and certainty of application. Due
process, equal protection of the laws, establishment of religion or prohibiting
the free exercise thereof, unreasonable search and seizure — these are but
a few of the great concepts which by the Constitution of the United States
operate as limitations upon the power of government. There are literally
thousands of federal and state court decisions which have sought to extract
meaning from these concepts. There will surely be thousands more as these
concepts take on constantly changing coloration, as science and technology
create new insights, new problems, new advances, and new frustrations in
the business of life, and as other forces - — ethics, custom, logic, politics, tra-
dition — seek to adjust to the new tensions which accompany the growth of
society.

Thus it is and will be with the home rule provisions of the 1970 Illinois
Constitution. All can agree, in broad terms, with the underlying general
purpose of the concept: to establish a power relationship between the state
and home rule municipalities and counties which will provide a greater

measure of autonomy in the exercise of local governmental authority, while
preserving an overriding though controlled power in the state legislature to
deny, limit, preempt, or permit the concurrent exercise of powers which
may be exercised by the home rule units. Obviously the general purpose of
home rule can be phrased in a number of other ways. For example, home
rule is intended to negate Dillon's Rule of the nature of municipal govern-
ment and powers; or to establish a form of federalism, whereby home rule
units, like states under the federal constitution, exercise power not by way
of grant but by way of limitation; or to establish a partnership between state
government and home rule units which recognizes appropriate spheres of
influence for each and creates a balance of power by which the legitimate
interest of each can best be realized with a minimum of conflict and a
maximum of harmony.

All this is very well, but what does it mean — not in abstraction, but
in concrete, particular instances of exercise of power by home rule units ^
What meaning, for example, is to be ascribed to the core phrase "pertaining
to its government and affairs" which modifies the grant of power to home
rule units? What is meant in the preemption provision by the phrase "not
exercised or performed by the State"? What is the scope of the prohibitions
upon home rule units relevant to licensing for revenue or imposing taxes
upon or measured by income or earnings or upon occupations?

This paper speaks to court decisions which, in the less than two years
since the 1970 constitution has been in effect,^ have interj^reted the home
rule provisions. The purpose is to ascertain whether an underlying change
in state-local relations is being achieved. The assessment can at best be
tentative: there will surely be a maturation process, perhaps of many years
duration, before a clearly definable pattern of judicial analysis emerges
which will provide standards and criteria by which efforts to exercise home
rule powers can be assessed with some measure of confident predictability.
In this connection it may be instructive, before looking at the few decisions
which have been rendered, to consider some of the psychological and legal
forces which will be bearing upon the judicial process as it wrestles with
these issues.

CONSTITUTIONAL, STATUTORY, AND JUDICIAL LIMITATIONS

Home rule is hardly a novel concept. It has existed in the form of con-
stitutional and statutory expression for just short of one centur)'. In 1875
Missouri in its constitution embraced home rule for its municipalities. Since
then many states, either by constitution or statute, have adopted the con-
cept. Two major factors, however, have negated any meaningful implemen-
tation of home rule. The first has been the limitations specified in the

'Only court decisions rendered before April 1973 are discussed in this paper.

constitution or in legislation respecting the exercise of home rule powers.
Grants of authority carefully circumscribed to preserve exclusive statewide
legislative control over such critical powers as taxation and debt incurrence,
and expressing the supremacy of state over local action whenever a conflict
exists, have rendered the grants virtually meaningless. The second has been
the functional inability of courts to shed an almost compulsive veneration of
Dillon's Rule, with the result that customarily grants of home rule powers
have been construed adversely to the principle of local governmental auton-
omy. With very few exceptions, both factors have rendered home rule a
mockery. It was this kind of record which led the author, in the 1954
report of the Chicago Home Rule Commission, to express the dismal con-
clusion that constitutional home rule was "a paradoxical enigma, attractive
and appealing, yet unattainable to any significant degree."^

It may be that this conclusion is no longer valid, that the innovative
approach to home rule in the Illinois Constitution may make it attainable
as well as attractive. If this occurs the constitutional convention may have
achieved an approach to state-local relationships of watershed significance,
one which may alter a long settled course of law — a creation of historic
dimensions. But it will not mean that Bishop Boadly's dictum has lost its
validity; quite the converse. It will be the result of the law's interpreters,
the courts, having become subtly adjusted to the new perspectives of the
home rule concept which its adherents insist are embedded in the language
and history of the 1970 constitution.

DE5 PLAINES AND O'CONNOR

In what may be charged as typical professional intellectual circum-
locution, I begin this brief analysis of the decisional law with two Illinois
Supreme Court cases which do not mention, much less consider, the issue
of home rule. Their relevance to home rule, however, will become apparent.

On January 25, 1971, a full five months before the constitution of 1970
became effective, the supreme court decided City of Des Plaines v. Metro-
politan Sanitary District of Greater Chicago.^ Two months later, on March
31, the petition for rehearing was denied and the decision entered the hal-
lowed, though not necessarily conclusive, realms of law and judicial prece-
dent. It was a simple factual case. The Chicago sanitary district, acting under
clear statutory authorization, adopted an ordinance to acquire by eminent
domain land in the city of Des Plaines which was within the corporate limits
of the sanitary district. The district's purpose was to construct a water

^ Chicago Home Rule Commission, Chicago's Government: Its Structural Modern-
ization and Home Rule Problems (Chicago: University of Chicago Press, 1954), p.
316.

H8 111. 2d 11, 268 N.E.2d 428 (1971).

reclamation plant upon the land. That intended use was in clear conflict
with the city's zoning ordinance. The district, asserting its sovereignty,
refused to seek a zoning variation under the city's ordinance, whereupon
the city sought to enjoin the district from using the land so acquired for
the intended purpose. The city also sought a declaratory judgment that the
district's power to condemn land was subject to the city's power to determine
land uses under its zoning authority. The circuit court ruled for the city,
the appellate court affirmed, but the supreme court reversed. Approaching
the issue purely as one of statutory interpretation, the court held that, absent
a clear legislative purpose to the contrary, the statutes and ordinances, to
be reconciled, must be construed as allowing the district to exercise its
governmental authority free from the city's power to zone. Any accommo-
dation between the respective governmental units in case of conflict was
left to the court's authority to prevent the district from exercising its power
in an arbitrary manner constituting an abuse of discretion, a factor not
urged in the case.

In May 1972, almost one year after the effective date of the new consti-
tution, the supreme court, in O'Connor v. City of Rockford* distinguishing
City of Des Plaines, reversed the Second District Appellate Court. The
lower court had sustained Rockford's authority to acquire land and main-
tain and operate a sanitary landfill in an unincorporated area outside its
city limits in violation of a Winnebago County zoning ordinance. Rock-
ford's initial position was that its express statutory authority to acquire
such land for such purpose took precedence o\'er the county's zoning power
and that it did not need a zoning variation from the county to validate its
action. The circuit court, in an action to enjoin Rockford's expenditure of
funds for the acquisition of the land and its operation as a landfill, agreed
with the plaintiffs, owners of the adjoining land, and permanently enjoined
the city from so proceeding. Instead of appealing this decision the city
took what it believed to be the decent path out of the dilemma and applied
to the Winnebago County Zoning Board for a variation. To the city's dis-
may, the petition was denied, whereupon the city filed an action for declara-
tor)' judgment that the county zoning ordinance was invalid as applied to
the proposed landfill site. On the merits the city lost and appealed. At this
point the supreme court decision in the Des Plaines case came down and
instead of pursuing its appeal the city went back to the circuit court to dis-
solve the injunction issued against it in the first proceeding. The circuit
court, on the authority of Des Plaines, dissolved the injunction and the
appellate court affirmed. The supreme court, however, saw it differently.
Distinguishing Des Plaines, the court noted the enactment in 1970 of the

*52 111. 2d 360, 288N.E.2d432 (1972).

state's Environmental Protection Act with its declared purpose of establish-
ing "a unified state-wide program ... to restore, protect and enhance the
quality of the environment" and granting to the Pollution Control Board
authority to adopt regulations pertaining to land pollution and to the state
Environmental Protection Agency authority to grant permits "imposing
such conditions as may be necessary to accomplish the purposes of the Act."
The court held that the county no longer had authority under its zoning
ordinance to grant variations for landfills and that the Environmental Pro-
tection Agency was now the exclusive agency for granting permits of this
kind. The efTect of the decision was to restore the injunction against the city
and to maintain it in effect "unless and until the said defendants [the city]
shall obtain a permit granted by the Environmental Protection Agency."

Neither Des Plaines nor O'Connor involved the home rule provisions of
the Illinois Constitution; the municipal action taken in each case preceded
the effective date of that charter. Nevertheless, both cases contain certain
implications which are quite important. O'Comior seems to be saying either
one of two things that could have a substantial relationship to municipal
home rule power in environmental protection matters. The first is that the
state has effectively occupied the field, thus precluding municipal authority.
If it is preemption, then paragraphs (g) and (h) of section 6 are involved,
and state legislation, enacted prior to July 1, 1971, preempting a power may
not of itself be effective to foreclose municipal home rule authority in this
field taken after that date. This depends upon the effect to be given to
preexisting state legislation under section 9 of the constitution's Transition
Schedule maintaining in force "laws . . . [and] regulations . . . not contrary to,
or inconsistent with, the provisions of this Constitution. . . ." There is some
decisional law upon this aspect of the problem to which I shall later allude.
A related aspect of the issue as thus viewed is the relevance of the provisions
of paragraph (i) of section 6 pertaining to the concurrent exercise of power
by the state and a home rule unit.

On the other hand, if O'Connor means that the control and regulation
of the environment is not, in the primary grant of home rule power in
paragraph (a) of section 6, a power or function "pertaining to its [the home
rule unit's] government and affairs," then the preemption provisions of para-
graphs (g) and (h) become irrelevant and municipal power in this area
will be wholly dependent upon statutory grant. This would be a wholly
different matter conceptually and legally. Although one can visualize a need
for municipal regulation and control of the environment, in particular
localized applications, it is quite probable that the court, facing the issue
squarely, would view environmental problems as essentially unrelated to
limited geographic units. The court's view might also be that the state's

power is exclusive even without any specific new preemption of the field,
subject, of course, to the state's grant of concurrent or limited exclusive
authority to home rule units by legislation.

As to Des Plaines, its relationship to home rule depends upon the dis-
position of a pending appeal in the First District Appellate Court by the
city of Des Plaines in litigation initiated by the city after the supreme court
decision to prevent the sanitary district from pursuing its purpose.^ Now
relying upon its home rule power, the city seeks to enjoin the district, con-
tending that the constitutional grant of home rule power to it expanded
its authority respecting zoning and made the sanitary district's condemnation
power subordinate to and dependent vipon municipal acquiescence. On
November 16, 1972, the Cook County Circuit Court dismissed the city's
suit on res judicata grounds, avoiding a decision on the merits. The home
rule issue was not before the supreme court in its first decision. If the appel-
late court should sustain the circuit court, municipal home rule in the
important areas of zoning and land use and regulation may be somewhat
less than effective in areas of intergovernmental conflict.

The O'Connor case also involved the extremely important issue of the
existence of municipal power to act beyond the territorial limits of the
municipality. Statutory grants of such power in zoning and certain other
areas were in existence prior to the grant of home rule power in 1970. In
O'Connor the court simply held, in a non-home rule context, that the city
could acquire and maintain a landfill, pursuant to statutory authority, out-
side its corporate limits provided that consent by way of permit was given
by the state Environmental Protection Agency. O'Connor settled no issues
concerning the power of a home rule unit to act extraterritorially without
benefit of statute.

SALEM

The issue of extraterritorial powers of home rule units was dealt with
in a somewhat oblique, yet presumably definitive, way, in People ex rel.
City of Salem v. McMackin,^ decided by the Illinois Supreme Court on
December 1, 1972. At issue was the validity of certain sections of the Mu-
nicipal Code known as the Industrial Project Revenue Bond .\ct, pursuant
to which municipalities were authorized to construct or acquire an industrial
project within or without or partially within and without the municipality,
but not more than ten miles beyond the corporate limits. The acquisition
was to be financed by revenue bonds issued by the municipality. The project
would be leased to industrial concerns for a rental sufficient to pay ofT the

^ City of Des Plaines v. Metropolitan Sanitary Dist. of Greater Chicago, no. 58604
(111. App. Ct, 1st Dist., Feb. 7, 1973).

"53 111. 2d 347, 291 N.E.2d 807 (1972).

interest and principal of the bonds. This in brief outline was the financial
plan of a program designed to attract industrial developments to Illinois
communities. The act expressly stated that it did not apply to any munici-
pality which was a home rule unit and therein lay one of the central
problems.

The city of Salem was not a home rule unit. The act was challenged on a
number of substantive constitutional grounds, among them that public funds
were being expended for a private purpose, that an unconstitutional dona-
tion of public property or an extension of credit to private persons was being
made, and that the act, in its limited application to industrial and manu-
facturing plants and to non-home rule municipalities, violated the equal
protection guarantees of the federal and state constitutions and the special
legislation prohibition of the state constitution.

The court sustained the law in its entirety. The most difficult issue was
based on classification of municipalities, the arguments being that ( 1 ) home
rule municipalities were precluded from engaging in this function and (2) if
authorized pursuant to the general home rule grant of power, such munici-
palities could act only within their corporate limits, the constitution express-
ing no power to act extraterritorially. The court was equal to the challenge.
The home rule grant in section 6(a) and the constitutional directive in
section 6(m) that home rule powers and functions shall be liberally con-
strued were broad enough to allow the mechanism for financing the acquisi-
tion of industrial projects as provided in the statute under attack, it not
being the purpose of the statutory limitation to non-home rule units to
preclude the exercise of the same power by home rule units, in such manner
as the home rule units would determine. The problem was more subtle in
regard to the extraterritorial issue. The constitutional convention history
embodied in the Local Government Committee recommendation and report,
and in the convention's rejection of amendments which would expressly
have granted to home rule units extraterritorial powers as the General
Assembly might provide, strongly suggested that such units had no inherent
home rule power beyond their corporate limits and that without further
clarification it was doubtful whether the legislature could grant such power
to them. The court held that the convention history did not mandate either
interpretation, that the home rule grant was not a limitation upon the
power of a home rule unit to acquire land outside its corporate limits for
a proprietary as distinguished from a governmental purpose, and that the
legislation did not therefore deny equal protection or constitute special
legislation.

There was a strong dissent by Justice Walter V. Schaefer. He argued
that convention history clearly showed that home rule units could exercise
extraterritorial power not by constitutional grant but only by legislative

authorization, and that absent such authorization the hmitation of the
Industrial Project Act to non-home rule municipalities created an invalid
classification. Moreover, he argued, the statute interfered with the freedom
of choice given by the constitution by saying to the people of a municipality,
" 'You may have the power granted by this act only if you give up your
status as a home-rule unit' or conversely, 'If you become a home-rule unit
you must give up the power granted by this act.' " The majority opinion,
said Judge Schaefer, renders the statutory limitation to non-home rule
municipalities meaningless, at least as it suggests that home rule units have
the power to purchase land up to ten miles beyond their corporate limits.
Finally, and perhaps most ominously in terms of future efforts of home rule
units to exercise powers which cannot categorically be classified as purely
local in nature, Justice Schaefer concluded as follows :

In my opinion the purposes of this Act — "to relieve conditions of unemployment,
to aid in the rehabilitation of returning veterans, and to encourage the increase of
industry within this State" are matters that pertain to "the government and affairs"
of the State. They become matters that pertain to the government and affairs of a
municipality, whether home-rule or not, only pursuant to a delegation of authority
from the General Assembly.

In this last statement Justice Schaefer contradicts the majority conclu-
sion that a home rule unit has the inherent power to engage in the functions
authorized for non-home rule municipalities by the Industrial Project Act.
The opinion of so prestigious a member of the court may augur ill for the
exercise by home rule municipalities of powers or functions pertaining to
any matters in which the state may be said to have a substantial interest or
concern. It may foreshadow a narrow approach to the resolution of conflicts
between state and municipal government reminiscent of the customary ten-
dency of courts to favor state supremacy by denying that the function is a
matter of local concern or one which pertains to municipal affairs.

BLOOM, EVANSTON, OAK PARK, JACOBS, BRIDGMAN, AND KANELL05

It has long been a truism that home rule is an empty concept unless it
includes a reasonable measure of local autonomy to raise revenues. No one
has ever suggested unrestricted local power. An accommodation between
the revenue needs of the state and its local subdivisions is essential to prevent
a chaotic, self-defeating revenue policy. The ultimate power to effect that
accommodation must rest in the state legislature, whose overview of fiscal
policy simply cannot be matched by the more parochial needs of local
governments. Given the tendency, unfortunately too restrictive, to write
specific limitations upon the state's taxing powers into the constitution, it
would indeed be unrealistic to expect the constitution not to be more de-

nianding in its controls over local revenue policies. And so it is with the
Illinois Constitution. The power to tax is initially recognized as a power
pertaining to the government and affairs of a home rule municipality. This
itself is a significant constitutional advance since in many so-called home
rule states, with some exceptions, the power to tax is not so recognized.
Although the general power is then circumscribed by the provisions of
section 6(e) which require General Assembly approval for the exercise of
municipal power to license for revenue, or to impose taxes upon or measured
by income or earnings, or upon occupations, in other taxing areas there
appears to be a significant counterlimitation upon the power of the state
to curb the revenue authority of home rule units. Thus under section 6(g)
the General Assembly cannot deny or limit the taxing power of a home rule
unit except by a vote of three-fifths of the members elected to each house.
Under section 6(h) the authority of the General Assembly to provide, by
law enacted by a simple majority of the members elected to each house, for
the exclusive exercise by the state of a power or function of a home rule
unit does not apply to the exercise of the taxing power. In addition, section
6(k) appears to limit the authority of the General Assembly in respect to
the power of home rule units to incur debt payable from ad valorem prop-
erty taxes by establishing percentage limits of assessed valuation below which
local autonomy cannot be circumvented by state denial or limitation.

In this all-important area a few supreme court decisions of limited
though significant impact have been rendered. The earliest was S. Bloom
Inc. V. Korshak (January 1972)' which sustained a Chicago ordinance im-
posing a cigarette tax upon consumers against multiple challenges that the
home rule grant of taxing power in section 6(a) did not include authority
to levy non-property taxes without prior legislative authorization and that
the tax was in fact a tax on occupations requiring, under section 6(c),
express legislative authorization. A much more debatable exercise of taxing
power was sustained in City of Evanston v. County of Cook (November 30,
1972, rehearing denied January 26, 1973)^ wherein similar taxes upon pur-
chasers at retail of new motor vehicles were imposed by Cook County and
the city of Evanston, both home rule units, the county tax being applicable
to sales within the corporate limits of all municipalities as well as in unin-
corporated areas in the county. In the face of section 6(c), which provides
that if a home rule county ordinance conflicts with an ordinance of a
municipality, the municipal ordinance shall prevail within its jurisdic-
tion, the court held both taxes to be valid. The provision does not establish

'52 111. 2d 56, 284N.E.2d 257 (1972).
"53 111. 2d 312, 291 N.E.2d 823 (1972).

a principle of municipal preemption but is simply intended to give prece-
dence to municipal power when necessary to resolve conflicts and inconsis-
tencies between municipal and county ordinances which are in eflect in
the same territory. In this case, said the court, there is no conflict within
the meaning of section 6(c) but simply the exercise of a concurrent power,
which although it may have undesirable economic consequences does not
violate the constitutional principle.

Three judges dissented, including Justice Schaefer, an extraordinary
occurrence in Illinois Supreme Court experience. Referring to convention
explanations of the meaning of section 6(c) by Mr. John Parkhurst, chair-
man of the Local Government Committee, the dissenters could find no
basis for the majority argument that a dual exercise of taxing power was
not a conflict within the meaning of section 6(c). The decision has resulted
in the repeal or nonenforcement of the municipal ordinance in Evanston
as well as in five other home rule municipalities in Cook County which had
enacted similar ordinances.

In Oak Park Federal Savings and Loan Association v. Village of Oak
Park (January 26, 1973, application for rehearing denied May 15, 1973)®
the attempt by a home rule municipality to exercise the power under section
6(1) to impose taxes upon designated areas within a home rule unit for
the payment of debt incurred to provide special services to such areas was
held invalid by the supreme court. The home rule unit could not rely upon
provisions of the state Revenue Act of 1939 in assessing properties and levying
special service area taxes; that act mandates uniform ad valorem property
taxes only. Moreover, the power under section 6(1), while not subject to
preemption or denial by action of the General Assembly under sections 6(g)
and (h), nevertheless requires enabling state legislation before it may be
exercised by home rule units.

Another decision favorable to home rule unit revenue powers is Jacobs
V. City of Chicago (September 1972),^° which sustained Chicago's tax upon
owners of vehicles "upon the use and privilege of parking a motor vehicle in
or upon any parking lot or garage," against the challenge that the tax was
a Hcense tax for revenue which under section 6(c) required express statu-
tory authority. The court held that since the tax was upon the owner or
user of a vehicle and not upon the licensed parking lot owner or operator,
who simply collected the tax as agent for the city, it was not a license tax
for revenue. It was the same rationale employed in the Bloom case, where
the contention that the cigarette tax was an unauthorized tax on occupations
was rejected because the incidence of the tax fell on the consumer and not
on the person engaged in an occupation as a seller.

' 54 111. 2d 200, 296 N.E.2d 344 (1973).
'"53 111. 2d 421, 292 N.E.2d 401 (1973).

A disturbing decision is Bridgman v. Korzen (September 1972)^^ in
which the supreme court invalidated a Cook County ordinance providing
for the payment of real estate taxes in four installments rather than the
two installments provided in the state Revenue Act of 1939. With two dis-
sents the court relied upon the narrow ground that tax collection was not
a power or function pertaining to the government and affairs of Cook
County since the power of collection was exercised in behalf of all taxing
units in the county. The rationale is not very persuasive and one can only
hope that a more expansive view of the home rule concept will prevail in
other cases involving governmental power exercised in behalf of other
governmental units where there are no compelling interests to deny the
existence of such power.

One final decision of great significafice must be noted. In Kanellos v.
County of Cook (May 1972)^^ the supreme court sustained a county ordi-
nance providing for the issuance of $10 million in general obligation bonds
without a referendum. A state statute enacted before the 1970 constitution
became effective required a referendum as a condition to the issuance of
such bonds.

At issue in Kanellos was the delegation of power to home rule counties
to incur debt under section 6(j). The section is silent as to the necessity for
a referendum. The further critical issue of whether statutes enacted prior
to the effective date of the constitution can operate as limitations upon the
exercise of home rule powers was also before the court. Holding with the
county on both issues, the court held that preconstitutional statutory enact-
ments in conflict with a grant of home rule power have no validity as law
under section 9 of the Transition Schedule. Section 9 preserves in force
"all laws, ordinances, regulations and rules of court not contrary to, or
inconsistent with, the provisions of this Constitution. . . ." To hold otherwise
would efTectively nullify the home rule grant and give unintended scope to
the power of the General Assembly to deny or limit home rule powers or
functions or to preempt the field. The decision on the facts seems sound, but
a probable and supportable rationale is that the decision does not invalidate
all preexisting state enactments dealing with grants of power to or limita-
tions upon powers of home rule units, absent contrary affirmative action
by the home rule unit.

OTHER CASES

Indications that a home rule unit must take affirmative action to invali-
date the effect of a preexisting state statute within the home rule unit's
jurisdiction are contained in a Madison County Circuit Court decision of

" 54 111. 2d 74, 295 N.E.2d 9 (1973).
"53 111. 2d 161, 290 N.E.2d 240 (1972).

March 2, 1973.^^ The Springfield Human Relations Commission claimed
that the grant of home rule powers negated existing state legislation dealing
with municipal affairs, but the decision held the state Public Meeting Law,
known as the Scariano Act, to be applicable to home rule municipalities.
Judge James Monroe distinguished Kanellos on the ground that the Cook
County action in adopting an ordinance in conflict with state law gave it
precedence over such state law. Such was not the case with the Scariano
Act, where the city of Springfield had taken no affirmative action to modify
or repeal that law.

An earlier similar holding, lacking, however, the detailed rationale of
Judge Monroe, was rendered by the Circuit Court of Sangamon County.
It gave precedence to a pre- 1971 state statute establishing a minimum man-
datory age of sixty- three for retirehient of municipal firemen.^* The city of
Springfield had passed an ordinance requiring retirement at age sixty. On
the Kanellos issue the court simply notes that that case is distinguishable but
it does not say why.

CONCLUSION

In this complex urban world the effectiveness of home rule depends upon
a variety of factors. A sympathetic judicial response is only one of the fac-
tors, albeit a very important one. As already noted, there is not as yet suffi-
cient judicial interpretive experience to suggest an emerging pattern. At
this stage the most that can be said is that the record is spotty, but that the
long-range prognosis is cautiously hopeful.

" Illinois News Broadcasters Ass'n v. Springfield Human Relations Comm'n, no.
72-Z-141 (consolidated with Springfield Broadcasting, Inc. v. Gingold, no. 72-Z-142)
(Madison County Cir. Gt., Mar. 2, 1973).

'* Peters v. City of Springfield, no. 210-72 (Sangamon County Cir. Ct.. Dec. 28,
1972).

HOME RULE, PREEMPTION, AND THE ILLINOIS GENERAL ASSEMBLY

EUGENE GREEN

In designing a home rule provision for Illinois, members of the Com-
mittee on Local Government of the Sixth Illinois Constitutional Convention
were aware of the not-always-successful course which home rule has taken
in other states. In many home rule states, local actions have been negated by
hostile state legislatures. The judiciary has tended to remain bound by the
doctrine of Dillon's Rule. Time and again the courts have refused to uphold
functions and powers thought "to be so local that the legislature is excluded.
Most of the cases sustaining local power over state authority deal with
local structure, procedure and personnel; they do not include substantive
powers. . . ."^

The Local Government Committee, however, felt that careful draftsman-
ship would help to avoid many of the problems faced by home rule in other
states. The committee report contains a cogent statement about the hopes for
home rule :

The fundamental reason for favoring home rule over the existing system of legisla-
tive supremacy is this: Local governments must be authorized to exercise broad
powers and to undertake creative and extensive projects if they are to contribute
effectively to solving the immense problems that have been created by increasing
urbanization of our society.^

CONSTITUTIONAL CONVENTION HISTORY

Many of the delegates to the Sixth Illinois Constitutional Convention
had campaigned in favor of home rule. The reports of the Local Govern-
ment Committee and the floor debates appear to show that there was not
much question as to whether or not the state of Illinois should adopt home
rule, but there was much argument concerning the balancing of authority
between the state and local units of government. Given the facts that Illinois
had long been a strong Dillon's Rule state and that the Illinois General

' Illinois, Sixth Constitutional Convention, Committee on Local Government
memorandum, David C. Baum, "A Preemption Primer," April 8, 1970.

" 111., Sixth Const. Conv., Record of Proceedings, Committee Proposals-Member
Proposals, Committee on Local Government Proposal 1 (Springfield, 1972), VII: 1605.
Emphasis omitted.

Assembly had been somewhat less than benevolent in dealing with central
city problems, the delegates set for themselves an extremely difficult task.
Article VII, section 6(a), of the 1970 Illinois Constitution states that:

Except as limited by this Section, a home rule unit may exercise any power and
perform any function pertaining to its government and affairs.

The immediate problem faced by the Local Government Committee was
how to give some operational meaning to "pertaining to its government and
affairs," so that neither the courts nor the state legislature could negate the
intention of the delegates to give local governments broad powers to enable
them to solve problems caused by increasing urbanization. The solution pro-
posed in the report of the Local Government Committee and adopted by
the delegates is contained in the following three subsections^ — (g) , (h) , and
(i) - — of article VII, section 6:

(g) The General Assembly by a law approved by the vote of three-fifths of the
members elected to each house may deny or limit the power to tax and any other
power or function of a home rule unit not exercised or performed by the State other
than a power or function specified in subsection (1) of this section.

(h) The General Assembly may provide specifically by law for the exclusive exer-
cise by the State of any po\ver or function of a home rule unit other than a taxing
power or a power or function specified in subsection (1) of this Section.

(i) Home rule units may exercise and perform concurrently with the State any
power or function of a home rule unit to the extent that the General Assembly by
law does not specifically limit the concurrent exercise or specifically declare the
State's exercise to be exclusive.

These subsections are referred to as the preemption provisions of the con-
stitution. They spell out the most important ways in which the legislature
plays a role in Illinois home rule; other subsections contain additional ref-
erences to the role of the General Assembly. Subsection 6(g) mentions two
possible denials or limitations by the General Assembly of powers of home
rule units. The first of these powers is the power to tax. Other than "licensing
for revenue or imposing taxes upon or measured by income or earnings or
upon occupations,"'* the General Assembly cannot deny or limit the power
to tax of a home rule unit except by the extraordinary majority of three-
fifths of the members elected to each house. The Local Government Com-
mittee arrived at this extraordinary majority as a compromise between the
desire that "home-rule units . . . should receive greater protection from legis-
lative control over revenue matters than now exists in Illinois . . ." (i.e.,
under the 1870 constitution) and the desire that "the legislature should not
be totally excluded from [the] local revenue issue because it should have

'Subsection 6(1) deals with special assessments and taxation for special services.
'Art. VII, sec. 6(e).

power to protect the state revenue base from depletion by local taxation "^

The Local Government Committee felt that home rule would be a "mere
skeleton" if the revenue power of home rule units could easily be taken away
by the General Assembly. Revenue power was rightly considered the crux
of the home rule concept: substantive power is meaningless without the
revenue to put the power to use.

The second possible denial or limitation mentioned in subsection 6(g)
deals with state legislative preemption of "any other power or function of
a home rule unit not exercised or performed by the State. . . ." In balancing
state sovereignty against local autonomy, the Local Government Committee
had doubts concerning the wisdom of granting complete autonomy involv-
ing any power or function to a home rule unit. Therefore, the committee
distinguished between a mere denial or limitation of a home rule power or
function by the General Assembly and the actual exercise of a power or
function by the General Assembly on behalf of the state: "home rule units
should be protected against sudden, massive denials of power by 'laundry list'
legislation."^ Thus, a mere denial or limitation of a home rule power can
only be enacted by three-fifths of the membership of both houses of the
General Assembly. Subsection (h), however, allows for preemption by only
a simple majority ("specifically by law") "when a state statute actually
exercises a governmental power or authorizes a state agency to do so."" In
balancing state sovereignty against local autonomy, the Local Government
Committee felt that "the state interest is much more significant than where
the statute merely denies the power to local governments."^ Furthermore,
due to the rapidity of change in our modern technological society, what may
pertain to local government and aflfairs today may become a state concern
in the very near future. This was another strong argument for requiring
only a simple majority for a "positive" preemption by the General Assembly.

Another distinction involves the exclusive as opposed to the nonexclusive
exercise of state power. Subsection 6(i) provides for the state and home
rule units to exercise their powers concurrently if the General Assembly "by
law does not specifically limit the concurrent exercise or specifically declare
the State's exercise to be exclusive." The puipose of this distinction is two-
fold. First, there is no good reason for eliminating a concurrent exercise of
powers in a given area if conflict does not arise. For example, the state may
want to set minimum standards concerning food purity. But unless the

° 111., Sixth Const. Conv., Record of Proceedings, Local Government Committee
Proposal 1, VII: 1640-41.
"Ibid., VII:1642.
' Ibid.
^ Ibid.

state declares exclusivity in the area, there is no reason why a home rule
unit could not enact even higher standards of purity. A second purpose of
this distinction is that it should act as a guideline to the courts that con-
current local action is to be permitted unless a contrary legislative intent is
expressed. Possible ways in which the General Assembly may express exclu-
sivity are as follows :

One way is to pass a law which imposes state-wide rules and regulations. . . . Some
laws might provide for the carrying out of functions by state agencies; some might
impose procedural requirements or positive duties on local units in exercising
powers; some might delegate functions or duties to local go\-emments. . . ; some
might merely authorize local governments to act, but within limits of substance and
procedure. . . .'

In debating the preemption provisions of the new constitution, delegates
to the constitutional convention were most concerned with the distinction
made in subsections 6(g) and 6(h) concerning the General Assembly's
ability to preempt by a vote of three-fifths of the members elected to each
house in the event of the denial of a power or function to a home rule unit
(sec. 6(g) ) and the General Assembly's ability to preempt by only a simple
majority ("specifically by law") in the case of affirmative action (sec. 6(h) ) .
The opposition to this distinction fell into two broad groups, which may be
termed the strong state government forces and the strong home rule forces.

The strong state government forces supported an amendment by delegate
Robert L. Butler which basically called for enabling the state legislature to
enact any preemption legislation by a mere majority vote. This proposed
amendment struck a sexere blow at those who felt that local goxemment
revenue po\ver was the crux of the concept of home rule. The strong state
government forces argued that: (1) due to the fact that most localities in
Illinois are dominated by a single political party, the state legislature, which
represents the political environment of the state as a whole, should not be
stymied by a three-fifths provision, and (2) looking at the past compositions
of the General Assembly, it is politically unrealistic to expect that a three-
fifths majority of the elected members of both houses could be mobilized on
a preemption bill. The state legislature is "not going to run wild" and do
away with home rule. State sovereignty must be protected. This amendment
failed by a vote of 20-69.1°

The strong home rule forces supported an amendment by the vice-chair-
man of the Local Government Committee, Philip J. Carey. This amendment
basically called for any preemption on the part of the General Assembly to
be enacted by a three-fifths vote of the members elected to each house. It
aroused the wrath of those who felt that the state must be able to move
quickly into any area of government where standardization of procedures

'Ibid., VII: 1644.

'"111., Sixth Const. Conv., Record of Proceedings, Verbatim Transcripts, IV:3083.

and requirements may be deemed necessary. The strong home rule forces
argued that: (1) the concept of home rule cannot be very meaningful if,
by a mere majority vote, it can be taken away, for the status of home rule
would then probably change with every session of the General Assembly,
(2) frivolous preemption bills could be introduced each legislative session
in order to blackmail pro— home rule representatives and senators into voting
for other pieces of legislation in order to protect home rule powers and func-
tions, and (3) in effect, Illinois would not have home rule because the
General Assembly could, by a mere majority vote, preempt all home rule
powers and functions other than the revenue power. The strong home rule
forces also questioned whether the General Assembly could get around the
three-fifths provision of subsection 6(g) simply by enacting a preemptive law
by a simple majority vote, setting up an agency to carry out the preemptive
power or function, and then failing to appropriate enough funds to the
agency to enforce that power or function. The strong home rule forces
argued that this condition of local governmental dependency on state gov-
ernment is exactly what the concept of home rule was supposed to eliminate.
Nevertheless, the Carey amendment failed by the slightly closer vote of
42-61."

By agreeing with the preemption provisions of the majority report of
the Local Government Committee, the majority of the delegates felt that
they had struck a politically realistic balance between legislative supremacy
and protection of the powers and functions of home rule units of govern-
ment. The three-fifths requirement would protect home rule units from both
an erosion of their revenue power and the evil of "laundry list" legislation.
The General Assembly was still free to affirmatively preempt any home rule
power or function, other than revenue, by a majority vote. The balance of
this paper deals with the General Assembly's initial reactions to the pre-
emption provisions of the 1970 Illinois Constitution.

SEVENTY-SEVENTH GENERAL ASSEMBLY

The Seventy-seventh Illinois General Assembly was the first to assemble
under the new constitution. Although only one significant preemption bill
was enacted, approximately fifty preemption bills were introduced, and about
half of them received favorable votes in the House of Representatives. Most
of these bills were introduced by Republicans, with the exception of H.B.
4383, introduced by Representative Robert E. Mann, an independent Demo-
crat. ^^

"Ibid., IV:3105.

'^ An additional way in which the General Assembly has acted in regard to home
rule is the so-called "home rule amendment," attached to a number of bills in both the
Seventy-seventh and the Seventy-eighth General Assembly. This amendment simply
states that the bill in question does not apply to a home rule unit.

In April 1971, Representative John H. Conolly introduced thirty-eight
preemptive bills (H.B. 2780-2817) . These bills provided that the powers and
functions set forth in them were to continue to be the exclusive powers of
the state. Thirteen of the bills (H.B. 2787, 2792-2801, 2804, 2805) were
tabled in the House. House Bill 2791 was tabled in the Senate. The remain-
ing twenty-four bills passed the House, but died in the Senate after reaching
the order of third reading. The following list indicates the substantive areas
of the thirty-eight Conolly bills :

2780 public utilities

2781 gas pipeline safety

2782 motor carriers of property

2783 electrical suppliers

2784 railroad, union depot, and terminal companies

2785 railroad employee sanitary conditions

2786 fencing and operating railroads

2787 dangers of railroad crossings on same level

2788 crossings of one railroad with another

2789 protection of persons and property at railroad crossings

2790 use of eminent domain in relation to gas

2791 Insurance Code

2792 nonprofit hospital service plan

2793 mutual district, county, and township insurance companies

2794 farm, county, and township mutual fire and lightning insurance

2795 medical service plan

2796 voluntary health service plans

2797 vision service plan

2798 dental sen'ice plan

2799 pharmaceutical service plan

2800 guaranteeing titles to real estate by corporations

2801 consumer installment loans

2802 credit unions

2803 financial planning and management services

2804 consumer finance

2805 sales finance agencies

2806 community and ambulatory currency exchanges

2807 disposition of unclaimed property

2808 development credit corporations

2809 fiduciary capacity of foreign corporations, including banks

2810 sale of exchange

28 1 1 buying and selling of foreign exchange

2812 pawners societies

2813 administration of trusts by trust companies

2814 fiduciary capacity of foreign corporations, including banks

2815 Banking Act

2816 Savings and Loan Act

2817 alcoholic liquors

If passed, these bills would have precluded any concurrent jurisdiction
by home rule units in the above areas. Even if home rule units should enter

any of these fields, however, the courts would probably be called on to decide
if these are legitimate concerns of such units.

The voting pattern that developed in a closely divided legislature on the
twenty-five bills which were called to a vote followed this pattern : ( 1 ) Chi-
cago Democrats voted against these preemptive measures, (2) Republicans
voted for these measures, and (3) a number of downstate Democrats voted
affirmatively on these bills. Of special significance is the fact that Chicago
representatives could not win the support of the Democratic House minority
leader, who consistently voted present. It appears that the concept of home
rule has not been able to break through the traditional Democratic-Republi-
can and downstate-Chicago divisions within the state legislature.

Representative Frank P. North introduced five preemptive bills in April
1972. These bills (H.B. 4144-4148) concerned such matters as the regula-
tion of the equipment of automobiles, vehicle license plates, the size, weight,
and load of vehicles, and the like. All five bills involved amendments to the
Illinois Vehicle Code. These bills were tabled in the House in May 1972.^^

Other preemptive legislation introduced included a bill defining and
determining mental incapacity (Hall, H.B. 2316), tabled in the House; a
bill concerning the taxation of cigarettes (Sours, S.B. 1506), tabled in the
Senate; a constitutional amendment to eliminate county home rule (Bluth-
ardt, H.J.R. Constitutional Amendment 16), tabled in the House; a bill
limiting the city of Chicago's corporate tax levy (Meyer, H.B. 4410), tabled
in the House; a bill limiting to 3 percent of assessed value of taxable
property the amount of debt payable from ad valorem tax receipts that may
be incurred without referendum by a home rule municipality (Mann, H.B.
4383), tabled in the House; and H.B. 4680.

House Bill 4680 was an attempt to freeze "any tax levied by a unit of
local government or school district for any purpose or for any fund" at the
1972 level until at least January 1, 1975. Although this bill received a con-
stitutional majority in the House, under section 6(g) of the local govern-
ment article of the new Illinois Constitution a three-fifths vote is required
in order for the legislature to limit the taxing power of home rule units. The
bill did not receive the necessary three-fifths vote, whereupon its chief spon-
sor. Representative C. L. McCormick, tabled the bill on June 22, 1972. Once
again, most of those voting affirmatively were either Republicans or down-
state Democrats and most of those voting negatively were Chicago-area
Democrats. The appeal to voters of a tax freeze is obvious. Chicago-area
Democrats felt that the passage of this bill would have severely cut into
powers of school districts and of units of local government — home rule and

"Senate Bill 192 (P.A. 77-706) requires local traffic regulations, including those
of home rule units, to conform to traffic regulations set by the General Assembly in
the Illinois Vehicle Code. This bill was passed by a simple majority in both houses.

non-home rule. At a special session of the state legislature which convened
on November 26, 1972, a similar bill was introduced in behalf of Governor
Richard B. Ogilvie. This bill was also not enacted.

The preemptive bill that caused the most controversy, and the only major
bill of this type which was enacted into law, was House Bill 3636 ( Public Act
77-1818), introduced in October 1971. It is commonly referred to as the Oc-
cupational Licensing Act. Section I of the bill as passed reads as follows :

Pursuant to paragraph (h) of Section 6 of Article VII of the Constitution of 1970,
the power to regulate any profession, vocation or occupation for which licensing
or registration is required by any of the Acts hereinafter listed in this Act, shall be
exercised exclusively by the State and may not be exercised by any unit of local
government, including home rule units.

The act goes on to list thirty acts covering various occupations and pro-

fessions :

Architectural Act

Podiatry Act

Dental Surgery and Dentistry Act

Funeral Directors and Embalmers Act*

Land Surveyors Act

Medical Practice Act

Nursing Act

Optometric Practice Act

Pharmacy Practice Act

Physical Therapy Registration Act

Professional Engineering Act

Structural Engineering Act

Psychologist Registration Act

Public Accounting Act

Real Estate Brokers and Salesmen Act

Certified Shorthand Reporters Act*

Social Workers Registration Act

Tree Experts Act*

Veterinary Medicine and Surgery Practice Act

Water Well Contractors License Act*

Detection of Deception Examiners Act*

Sanitarian Registration Act*

Business and Vocational Schools Act*

Water Well Pump Installation Contractors Licensing Act*

Nursing Home Administrators Licensing Act*

Barbers Act*

Beauty Culture Act*

Detective and Detective Agency Act*

Horseshoeing Act*

Insurance Code*

^* Asterisk (*) indicates occupation which would have been eliminated from
House Bill 3636 by a Democratic-sponsored amendment.

On November 2, 1971, Governor Ogilvie presented a message on pre-
emptive legislation to the Seventy-seventh General Assembly. He stated :

There are compelling reasons for enacting legislation which \vill clarify any
doubts and will reserve to the state exclusive authority in such matters as those
addressed by House Bills 3636, 2780-2817, and others.

The parceling out of licensing and regulatory authority over these various mat-
ters to home rule or other units of local government could have serious conse-
quences. Such fragmentation would inconvenience those persons who are regulated,
hinder the efficient delivery of sen'ices, and endanger the protection now afforded
the consumers of those services.

In general, those activities presently regulated by the state are of such a nature
as to not be compatible with either concurrent state-local regulation or exclusively
local regulation.^''

On the same day as the governor's message, less than a month after it
had been introduced, H.B. 3636 passed the Republican-controlled House
with very little debate by a vote of 124—27. Most of the negative votes came
from the Chicago Democrats. The issues had been debated the previous
spring in regard to H.B. 1553, which was an almost exact duplicate of H.B.
3636. H.B. 1553 had passed the House but had been killed in committee in
the Senate. In the Senate, H.B. 3636 received extensive debate. The argu-
ments were basically those that appeared in an article by Senator Cecil A.
Partee, a Democrat, and president pro tempore. In reference to H.B. 1553,
referred to above, Partee stated :

The special interests that feared turning over power to the people, came up with a
House Bill to restrict home rule. ... It would have taken from home rule units . . .
those licensing powers where the state presently exercised them. But it ignored the
fact that many local governments regulated such acts concurrently, meaning . . . that
powers being exercised previously were . . . being taken away from local government.
The real value of the licensing power to cities and counties is that regulation is
handled at the level closest to the people, instead of by a big faceless bureaucracy
which is unable to take local differences and variances into consideration."

In direct reference to H.B. 3636 Partee added :

I think we need to start a counter lobby to try to change some minds . . . unless we
want to see home rule completely emasculated. If the special interests win this one,
they'll go on to some other aspect of home rule and try to take it away from the
people too."

H.B. 3636 passed the Senate on April 25, 1972.^^ The vote was 34-20.

'■'"Preemption," 1971 Session, Seventy-seventh General Assembly, Legislative
Messages, Richard B. Ogilvie, Governor of Illinois.

'" Cecil A. Partee, "They Are Out to Get You," Illinois Municipal Review (April
1972), p. 4.

" Ibid., p. 5.

" The Senate vote on H.B. 3636 was taken little more than a month after home
rule had been defeated in nine Illinois counties. Opponents to home rule in some of

The Chicago Democrats tried to adopt a number of amendments but all were
defeated. One of these amendments would have eliminated from the bill all
those occupations listed above that are followed by an asterisk. Six Demo-
crats — ■ five from downstate and one from Chicago — voted for the bill.

The bill was signed into law as Public Act 77-1818^^ on April 28, 1972.
In a news release on May 1, the governor commented :

This is an important victory for responsible government. This legislation protects
businessmen and professions from unnecessary harassment and chaotic local regula-
tion. ... It also shows that this legislature can function effectively.'"

Others, however, are not as optimistic concerning the consequences of this
act. The late David C. Baum, professor of law at the University of Illinois,
noted that P. A. 77-1818

is particularly broad in at least two respects. First, since it applies to all local gov-
ernments, not just home rule units, it seems to preclude local regulation formerly
sanctioned by statute, as well as new home rule regulatory and licensing schemes.
Second, it applies to all regulation, not just local licensing which has been the
major feature of home rule objected to by various business interests. This raises
the possibility that the named professions and occupations may be completely free
of local control in all aspects of their work."

House Bill 3636 is being challenged in City of Evanston v. Department
of Registration and Education of the State of Illinois, ^^ on the following
grounds :

1. fail[s] to meet the requirement that "a bill expressly amending a law shall set
forth completely the sections amended" (Art. lY, sec. 8).

2. the bill attempts to deny or limit powers or functions of home rule units not
exercised or performed by the state even though the bill was not approved by a
vote of 3/5 of the members elected to each House (Art. VII, sec. 6(g) ).

3. House Bill 3636 is not confined to one subject matter ... in violation of Art. IV,
sec. 8.

4. The provisions of House Bill 3636 have the effect of permitting . . . discriminatory
acts without the sanction of revocation or suspensions of a real estate broker's
license ... in violation of the 14th Amendment of the Constitution of the United
States."

these counties expressed support for H.B. 3636 and urged that home rule not be
adopted until the General Assembly had acted. See the following background paper,
"Home Rule Referenda in Illinois," by Susan B. Mack, pp. 61-71, for a discussion
of this point.

''111. Rev. Stat., ch. 127, sees. 901-03 (Supp. 1972).

=""Xews From the Office of Governor Richard B. Ogilvie," May 1. 1972.

" David C. Baum, "A Tentative Survey of Illinois Home Rule (Part II) : Legisla-
tive Control, Transition Problems, and Intergovernmental Conflict," University of
Illinois Law Forum (1972), p. 569, footnote 30.

" Cook County Cir. Ct., no. 72-7377.

'' Illinois Municipal League, Committee of Home Rule Attorneys, Supplemental
Report (Sept. 22, 1972), pp. 12-14.

A class action involving all Illinois real estate brokers against the city of Urbana

As we have seen, the Seventy-seventh Illinois General Assembly at-
tempted to enact a large number of bills which would have preserved state
exclusivity in a wide range of governmental activities. Although the Chicago
Democrats were able to kill many of these bills in committee in the Demo-
cratic-controlled Senate, this appears to be only a Pyrrhic victory, because the
Democrats no longer control either house. Many felt that the legislature
would declare certain existing functions to be of exclusive state concern.
Others had hoped that localities would be able to experiment in previously
traditional state activities and that preemptive measures would be introduced
only when the results of these experiments were found to be detrimental to
the state. However, this does not appear to be the sentiment of the majority
of state legislators. The concept of home rule was not able to transcend the
traditional lines of division within the state legislature.

SEVENTY-EIGHTH GENERAL ASSEMBLY

The first session of the Seventy-eighth Illinois General Assembly, meeting
from January 10 to July 2, 1973,^* also witnessed the introduction of nu-
merous bills to preempt, limit, or deny powers and functions of home rule
units. Again the legislature was closely divided. Only two major pieces of
legislation were passed declaring exclusive exercise by the state of such
powers and functions. No bill was passed which, in accordance with section
6(g) of article VII of the Illinois Constitution, either stated that a three-
fifths vote was required or received such a ruling from the chair of the
House or the Senate.

House Bills 1050 and 1313, aimed at home rule units, passed both houses
of the legislature by a majority vote, under section 6(i). H.B. 1050 (P. A.
78-448) adds to the Open Meetings Act^^ the statement that the provisions
of the act constitute minimum requirements for home rule units. Any home
rule unit may enact an ordinance prescribing more stringent requirements.
More stringent requirements than prescribed by statute may also be enacted
by home rule units under H.B. 1313. H.H. 1313 (P.A. 78-458) provides that
state laws requiring notice to be published or posted by a city or a county,
or by an officer of a city or a county, shall apply to home rule as well as
non-home rule units.

separately and as representative of a class involving all Illinois municipalities was filed
December 15, 1972 (Johnson v. City of Urbana, Champaign County Circuit Court, no.
72-C-945). The issues are similar to those in the Evanston case. The circuit court de-
cision in Evanston, rendered July 23, 1973, was that Public Act 77-1818 is unconstitu-
tional, while the decision in Johnson, rendered June 29, 1973, upheld the constitu-
tionality of the act. Both cases have been appealed to the Illinois Supreme Court.
— Ed.

" Most of the legislative activity on home rule in the first session of the Seventy-
eighth General Assembly took place after this paper was written. This short con-
cluding section has been added to bring the reader up to date. — Ed.

"111. Rev. Stat., ch. 102, sees. 41-44 (1971).

Among the unsuccessful pieces of legislation introduced to preempt pow-
ers or functions of home rule units not exercised or performed by the state,
under section 6(g), were the following: S.B. 217, S.B. 566, and H.B. 345
(to amend the Municipal Code by adding sections 10-1-49 and 10-2.1-31 to
the provisions dealing with civil service and boards of fire and police com-
missioners in order to make these provisions applicable to all municipalities,
including home rule municipalities) ; S.B. 493 (to provide exclusive exercise
by the state of the power to tax cigarettes and deny such power to all units
of local government, including home rule units) ; H.B. 348 (to amend the
Municipal Code by adding section 10-1-49 to the provisions dealing with
civil service in order to make these provisions applicable to all municipalities,
including home rule municipalities) ; H.B. 971 (to amend the Counties Act
to make tax rate limitations applicable to home rule counties) ; and H.B. 1811
(to amend the Municipal Code by adding sections 10-1-49 and 10-2.1-31
to the provisions dealing with civil service and boards of fire and police
commissioners in order to make those provisions applicable to municipalities
under one million population). None of these bills passed both houses by a
three-fifths majority vote.

Also introduced during the first session of the Seventy-eighth General
Assembly was H.B. 911, similar to the tax freeze bill introduced in the
Seventy-seventh General Assembly. Representative C. L. McCormick was
again the chief sponsor. H.B. 911 would have frozen most 1974 and 1975
property taxes at 1973 levels for all local units of government, including
home rule units. The bill was left in conference committee at the time of
adjournment.

HOME RULE REFERENDA IN ILLINOIS

SUSAN B. MACK

The lack of eflfective provisions dealing with local government was an
important concern when the Sixth Illinois Constitutional Convention met to
draft a modem constitution for the state. Many delegates felt that counties
and municipalities needed expanded powers to fulfill their responsibilities
in a modern, highly complex, and interrelated society. Guided by this con-
cern and by the deliberations of the convention's Committee on Local Gov-
ernment, the delegates included several significant departures in the local
government article of the new constitution. Potentially the most significant is
home rule.

The term home rule is inexact. It summarizes an approach to the powers
of local units and consequently to the balance between local autonomy and
state sovereignty. Theoretically, by a decrease in the extent of legislative
control, local units will be able to respond promptly and effectively to local
problems. In Illinois, home rule is a specific grant of general power to ( 1 )
municipalities with populations over 25,000, (2) other municipalities by
referendum, (3) counties with an elected chief executive officer (Cook
County is the only county to qualify) , and (4) other counties which elect
by referendum to adopt this structural change.

The local government article of the 1970 Illinois Constitution states that
a home rule unit may "exercise any power and perform any function per-
taining to its government and affairs including but, not limited to, the power
to regulate for the protection of the public health, safety, morals and welfare ;
to license; to tax; and to incur debt."^ Furthermore, "powers and functions of
home rule units shall be construed liberally."^ This is an extensive grant
of power to certain governmental units to deal with problems and situations
of a local nature as needs arise.

Although they are extensive, home rule powers are not absolute. For
example, the local government article also provides that a conflict between
an ordinance of a home rule county and an ordinance of a municipality
in that county shall be resolved in favor of the municipality within its juris-

'Art. VII, sec. 6(a).
'Art. VII, sec. 6(m).

diction. Further, the General Assembly retains the power to limit or preempt
specific home rule powers.

There is another limitation, one which applies only to county home rule
units. In addition to enhancing the powers of county government, the consti-
tutional pro\isions have increased county responsibilities, notably the respon-
sibility of providing for visible, responsible, and accountable leadership. This
has been accomplished by requiring counties that would become home rule
units to first institute the county executive form of government. Briefly, this
structural change requires the reorganization of county government to sepa-
rate the executive functions of the elected county executive from the legisla-
tive functions of the county board. The provisions are detailed in the Coimty
Executive Act.^ The county executive would be elected at-large, thus allow-
ing direct political control and accountability in the same manner that other
executives such as the president, governors, and mayors are subject to control
by their respective publics. Once elected, a county executive would perform
the executive functions of the county, including preparation of the annual
budget, appointments (with the advice and consent of the county board),
execution of all county board decisions, preparation of an annual report to
the county board, and approval and veto of county board actions. The board
would thus be relieved of many managerial and administrative details,
giving it time and opportunity to become a comprehensive, deliberative, and
policy-making body.

MUNICIPAL HOME RULE REFERENDA

In the short period of time since the adoption of the 1970 Illinois Consti-
tution, home rule has been an important concern whenever local government
is discussed. As of summer 1973 there were one home rule county and
seventy-two home rule municipalities. Fifty-nine of these municipalities be-
came home rule automatically when the constitution went into effect because
they had populations of over 25,000 each. Six municipalities have become
home rule subsequently through normal population growth as verified by
special censuses (Carbondale, Glenview, Hoffman Estates, Naper\-ille,
Schaumberg, and South Holland). During the period from November 1,
1971, to April 30, 1973, thirteen municipalities of less than 25,000 popula-
tion attempted to become home rule by referenda (see table 1). Of these
referenda, six were unsuccessful. They were held in Arthur, Forest View,
Lincolnshire, Long Grove, Stickney, and Worth. Successful referenda were
held in Bedford Park, Countryside, McCook, Mound City, Norridge, Rose-
mont, and Stone Park.

Municipal home rule referenda are dependent on implementing legisla-
tion as well as on constitutional authorization. Section 28-4 of the Election

III. Rev. Stat, ch. 34, sec. 701 et seq. (Supp. 1972).

TABLE 1. MUNICIPAL HOME RULE REFERENDA

Municipality (County)

1970
Population

Yes(%)

No(%)

Date

I. Successful Referenda

Bedford Park (Cook)

583

254(88)

36(12)

Dec. 1971

Countryside (Cook)

2,888

598(65)

317(35)

Nov. 1972

McCoo'k (Cook)

333

165(91)

17(9)

Nov. 1971

Mound City (Pulaski)

1,177

130(70)

56(30)

Apr. 1973

Norridge (Cook)

16,880

2,387(77)

710(23)

Apr. 1973

Rosemont (Cook)

4,360

229(76)

72(24)

Jan. 1972

Stone Park (Cook)

4,451

206(73)

78(27)

Dec. 1972

II. Unsuccessful Referenda

Artliur (Douglas-Moultrie)

2,214

161(42)

219(58)

Mar. 1972

Forest View (Cook)

927

181(33)

361 (67)

Nov. 1972

Lincolnshire (Lake)

2,531

255(40)

381(60)

Aug. 1972

Long Grove (Lake)

1,196

204(49.5)

208(50.5)

Apr. 1973

Stickney (Cook)

6,601

375(29)

904(71)

Dec. 1972

Worth (Cook)

11,999

494(47)

557(53)

Apr. 1972

Code ( "Referendums required by Constitution in respect to units of local
government")* sets forth the requirements for all referenda authorized by
the local government article except for those provided for separately by the
County Executive Act. Under this new section of the Election Code, a mu-
nicipal home rule referendum may be initiated in one of two ways : ( 1 ) by
resolution of the governing board of the local unit, or (2) by fiHng with the
clerk of the local unit a petition signed by registered voters equal to 10
percent of the number who voted in the last general election in the unit.
The governing body then provides for submission of the measure to the
voters at any general, regular, or special election, but not later than the first
general election occurring at least seventy-eight days after the adoption of
the resolution or the filing of the petition. Both notice and ballot form follow
standard procedures specified in other sections of the code, x^s with county
home rule, referenda for municipal home rule cannot be submitted to the
voters more than once in any twenty-three-month period.

In practice, municipalities favor the resolution method of placing the
proposition on the ballot. Only in McCook and Bedford Park did citizens
take advantage of the petition procedure. In Bedford Park a petition was
filed signed by 74 percent of the registered voters, according to statistics
from the office of the village clerk. Most municipal home rule referenda have
been presented to the voters at special elections. Often this was the only
question presented at that particular time.

Although conditions surrounding each referendum differed, several

' 111. Rev. Stat., ch. 46, sec. 28-4 (1971).

common themes are evident. These can be illustrated by examining several
referenda as miniature case studies. The information which follows was
gathered from newspaper accounts and from interviews with local officials.

ARTHUR, (population 2,214) Arthur, one of the two municipalities
outside the Chicago area to hold home rule referenda, failed to adopt home
rule by a vote of 219 to 161. Home rule was presented to the voters of the
village in March 1972 as a joint proposal with a property tax increase to
provide ambulance service for the community and surrounding areas. Voters
"split" their ballots. Home rule was defeated and the ambulance proposal
passed. According to village officials, ignorance and poor communication
were responsible for the defeat. Although the Arthur Graphic-Clarion ran
a two-part series entitled "What Is Home Rule?" even the village president
admitted that he was unsure what eflfect home rule would have on Arthur.
There was virtually no campaign, and in various news reports following the
defeat no spokesmen could be found to represent the successful opposition.

LINCOLNSHIRE, (population 2,531) In August 1972 a home rule
referendum was defeated in Lincolnshire. The vote was 381 to 255. Accord-
ing to the mayor, home rule status was expected to provide new sources of
revenue for the municipality. Such possible sources included theater, hotel,
liquor, cigarette, and sales taxes. There was no campaign and no opposing
spokesmen were cited or identified.

COUNTRYSIDE, (population 2,888) A home rule referendum held in
December 1972 was successful in Countr)'side. The vote was 598 to 317.
The village mayor noted that, although home rule gives a municipality
broader taxing powers, the main reason that the measure should be passed
was to give Countryside a tool to defend itself against encroachment from
Cook County. "There is no telling what the county may try to tax next."
The measure was opposed by some residents who feared that under home
rule the availability of the taxing power would encourage its use.

ROSEMONT. (population 4,360) The Rosemont home rule referendum
in January 1972 was successful by a vote of 229 to 72. A resolution had been
passed unanimously by the governing board on the recommendation of the
mayor. The reasons for the referendum were the need for other sources of
revenue and the desire to avoid certain restrictions of the Cities and Villages
Act. The governing board felt that special conditions in Rosemont required
measures which could not be taken by non-home rule units. Rosemont is
the site of many major hotels and motels which serv'e O'Hare Field and has
a large transient population on a daily basis, usually numbering between
25,000 and 30,000. This necessitates disproportionate expenditures for public
services. For example, Rosemont is the only municipality of comparable size
in Illinois with a full-time, paid fire department. The advantages of home
rule were presented as ( 1 ) greater flexibility in long-term financial arrange-

merits, and (2) eased taxation and licensing restrictions. The measure was
publicized at several public meetings attended by a total of about one
hundred people, in newspaper accounts, and at open village board meetings.
Some concern was felt by the public employees, but no organized opposition
was advanced.

STONE PARK, (population 4,451) In December 1972 a successful home
rule referendum was held in Stone Park. The vote was 206 to 78. Village
officials were primarily interested in regaining taxing powers which had
been lost with the adoption of the 1970 constitution. Revenue from the taxa-
tion of three mobile home parks had been lost, and home rule would make
possible reimposition of the tax. In addition, village officials feared that Cook
County zoning and building codes would lead to high-rise apartment build-
ings in the village. Officials also wanted to enter into joint purchasing agree-
ments with Northlake and Melrose Park and hoped that home rule would
enhance that power. There was no campaign on the issue of home rule and
no visible opposition.

Although it is still too early to draw any firm conclusions concerning the
pattern of home rule adoption, it is possible to make some general comments.
To date, successful referenda seem to indicate that home rule adoption will
be primarily a suburban, and more specifically a Cook County, phenomenon.
This has implications which would merit further study. For example, the
activities of one home rule unit (in this case. Cook County) may have a
"snowball" effect leading directly to the formation of more home rule units.

It is also interesting to note the relatively small size of the municipalities
which have sought to become home rule units by referendum. Most have
populations of less than 5,000 and some are considerably smaller (see table
1 ) . The constitutional convention granted home rule to municipalities over
25,000 population in the belief that home rule powers were most appropriate
to units of such size. It was felt that home rule could help these units deal
with problems of urbanization that accompany increased size. In practice,
however, there appears to be a group of small municipalities which feels that
home rule is the best, and sometimes the only, means of dealing with their
special circumstances. One traditional goal of home rule has been to grant
local autonomy in situations unique to given communities. Further experience
in home rule may demonstrate that small units need home rule at least as
much as do larger ones. In fact, home rule may be best suited to the smaller
units because home rule power may tend to foster fragmentation in the
solving of "urban" problems, many of which could be dealt with more effec-
tively through increased intergovernmental cooperation within metropolitan
areas.

The municipal home rule referenda held to date illustrate the validity
of several of the truisms of political science election literature. First, there

is a very low public awareness of and interest in local government. Tliis is
evidenced in municipal home rule referenda by low turnout rates, lack of
opposition to what has in other contexts — debates at the constitutional con-
vention and county home rule referenda campaigns — proven to be a con-
troversial issue, and lack of real campaigning. Second, local officials generally
take the initiative in local affairs, especially in extremely small municipalities.
Third, the issue of taxation is complex. Presented in a positive light, this
issue may successfully mobilize support rather than inevitably being linked to
opposition to home rule.

The nature of the opposition is also interesting, especially in light of the
experiences in county home rule referenda (see below). There was almost
no opposition to home rule in the municipal campaigns. Some opposition was
expressed over the implications of home rule for higher taxation, and to a
lesser extent about the uncertainties of pensions for public employees.
Opposition on the basis of these concerns, however, was neither organized
nor intense. The most effective obstacle to a successful referendum may have
been public uncertainty. Unfortunately, this is an extremely difficult variable
to measure in a political study.

In summary, municipal home rule referenda have been sporadic oc-
currences, characteristically responses to local conditions which cannot be
dealt with in any other manner. Additional referenda are likely to be held,
but no clear patterns are discernible at this point.

COUNTY HOME RULE REFERENDA

The home rule grant is merely an option for Illinois counties other than
Cook. In 1972, nine counties tried to take advantage of this option. In all
nine counties the home rule question was defeated by large margins (see
table 2). The significance of these figures, however, is not immediately
apparent.

Before a county could decide whether to have an elected chief executive
officer and thus to become a home rvile unit, implementing legislation had
to be enacted. As provided in the County Executive Act, the question can
be placed on the general election ballot if ( 1 ) the county board adopts a
resolution to that effect, or (2) a petition is filed with the clerk of the circuit
court signed by 2 percent of the registered voters in the county or five
hundred registered voters, whichever is less. The referendum is to be ex-
pressed on the ballot in substantially the following manner:

Shall the County of Yes

become a Home Rule County and

establish the County Executive

form of government? No

TABLE 2. COUNTY HOME RULE REFERENDA
(all held March 21, 1972)

County

1970
Population

1972 Number

Registered Voting on
Voters^ Home Rule

Yes(%)

No(%)

D.-Kalb

71,654

33,084

13,044

4,161(32)

8,883(68)

DuPage

491 ,882

232,437

83,833

23,487(28)

60,346(72)

Fulton

41,890

26,404

9,559

1,617(17)

7,942(83)

Kane

251,005

104,190

32,611

8,459(26)

24,152(74)

Lake

382,638

165,738

48,063

14,977(31)

33,086(69)

Lee

37,947

18,694

8,183

2,013(25)

6,170(75)

Peoria

195,318

84,389

37,777

15,027(40)

22,750(60)

St. Clair

285,176

109,920

27,668

2,609(9)

25,059(91)

Winnebago

246,623

109,598

36,324

10,149(28)

26,175(72)

If a majority of those voting on the question vote favorably, the county
board then proceeds to estabUsh the county executive form of government.
Essentially this involves providing at the next general election for the elec-
tion of a person to fill the new office. The newly elected chief executive
would then take office the first Monday in December following his election,
and county home rule would be achieved.

In four counties — DeKalb, Kane, Peoria, and St. Clair ■ — referenda
were initiated by petition. Since this method of initiation is not directly
related to the respective margins of defeat, additional factors must be found
for the nine defeats of home rule.

While the election defeats appear to be overwhelming, they were dealt
to home rule by a relatively small number of electors. This may in part be
the inevitable result of timing. The referenda were held at a primary election
and it is likely that the election results exaggerate the extent of anti-home
rule sentiment. If the referenda had been held at the November general
election, as all future home rule referenda for counties will be, the results
would probably have been less one-sided.

In contrast to general elections, especially those in presidential election
years, primaries are characterized by low turnout rates. The turnout rates
were low in all nine counties, and in each the option of home rule was de-
feated by a small group of voters, sometimes numbering less than 10 percent
of the county's population (see table 2) . In the St. Clair county referendum,
where home rule was defeated by the largest margin, only one-fifth of the
county's registered voters voted against the measure.

People who participate in primary elections tend to be more partisan
than those who participate in general elections. Thus the audience for politi-

^ Figures supplied by county clerks.

cal information in primary elections is largely composed of those potential
voters who are oriented toward political parties, candidates, and issues.

The 1972 primary election featured hotly-contested races for the Demo-
cratic gTibernatorial nomination and for delegates and preference votes in
the Democratic presidential primar)'. The main focus of attention was far
removed from the home rule issue. As could have been anticipated, political
information about the candidate races had an overwhelming advantage in
gaining public attention. In the newspapers published in counties voting on
the home rule measure, information about the candidates overwhelmed in-
formation about home rule in volume and preferred page position. Home rule
articles failed to be competitive; they were less exciting and less interesting.

This competitive disadvantage had important implications for the initial
impact of a little-understood issue during the campaign. First, it was rela-
tively easy to entirely overlook home rule information. Information must be
easily accessible if it is to have any impact at all. A second implication was
that because home rule was a nonpartisan issue it did not have the advan-
tages of a party label to encourage public attention. It is possible that a
partisan campaign on home rule would have increased turnout by increasing
the visibility of the issue.

A characteristic of primary elections helps to explain the wide margins
in these elections. The character of the electorate differs markedly in primary
and general elections. In a primary election, where the turnout is low, the
people who stay at home are those who are less interested, less in\^olved, and
less partisan. In other words, people vote in a primary because they have
a good reason to do so, and one of the best-known reasons is to vote against
something. Voters who oppose a measure are more easily motivated to vote
and thus turn out in proportionately greater numbers than voters ^vho favor
or are neutral to the same measure. In practical terms, this means that de-
feating home rule was easier than passing it.

The arguments used to motivate opposition often appealed to fears,
uncertainties, and negative feelings in general. One such argument was that
home rule would give the counties too much power. Another was that the
county executive would actually become a county "dictator," and develop
yet another unresponsive and irresponsible bureaucracy. These arguments
reflect the generalized distrust of government that is a recurrent theme in
American political campaigns.

Some statements called for limitations to control local power, suggesting
that home rule would be more palatable once such limitations had been
established by the General Assembly. The limitation most often called for
was a check on the ability of home rule counties to license occupations and
businesses. This demand was the focus of attention for several of the groups
involved in the campaign against home rule. Two spokesmen claimed they

were in favor of home rule with this one exception and urged delay of adop-
tion until a future time. They opposed home rule in the referenda as a lobby-
ing technique to demonstrate to the General Assembly their support for the
speedy passage of House Bill 3636 (now Public Act 77-1818) j*^ which declares
the regulatory power under certain designated occupational licensing or
registration laws to be exclusively a state function.

Other arguments against county home rule followed similar lines of
thought. Home rule was opposed as the first step to "metro" government.
Opponents also argued that if home rule were passed at that time and party
county executive candidates not elected at the same primary election, this
would be an open invitation to machine control of the county. The example
of Cook County was also used in an attempt to take advantage of the
downstate ambivalence toward the Chicago metropolitan area.

These arguments undeniably had an impact on the voters participating
in the primary election. The main thrust of the anti-home rule campaigns,
however, centered on higher taxes and higher costs of government. Oppo-
nents equated home rule with unlimited and extravagant county taxing and
spending. Altered debt limits and the ability to incur debt without voter
approval were mentioned, but the major concern was specifically with taxes
— they would be increased, and increased without voter approval. Observers
familiar with home rule have described all nine referenda defeats as tax-
payers' revolts. Negative feeling about the tax issue was enhanced by the
competitive partisan races in the March primary election. Candidates
then were talking about such topics as shoebox scandals and the high cost
of corruption in state government, the high cost of living, and high and
inequitable levels of taxation. Reiteration of these points probably reinforced
the impact of the argument that home rule would bring higher taxes.

A comparison of the kinds of arguments pro and con the home rule issue
will yield a better understanding of the failure of the referenda. Organized
opponents of home rule ranged from occupation-oriented groups such as the
Waukegan Board of Realtors and the Illinois Tobacco Dealers Association,
community organizations such as the Belleville Chamber of Commerce, to
ad hoc groups — notably STOP (Stop Taxing Our People), which was
active in several counties. There was also some opposition from governmental
units, although those most directly afifected — the county boards — were
conspicuous by their silence on the issue.

The anti-home rule position was covered comprehensively in the news-
papers of the nine counties involved. The National Farmers Organization,
for example, mounted a vigorous campaign in St. Clair County, the publicity
for which included the following policy statement :

" 111. Rev. Stat., ch. 127, sec. 901-03 (Supp. 1972).

We opposed adoption of the new Illinois Constitution because we believed that it
would pave the way for unlimited taxing power, crazy licensing and give-away of
our tax money. . . .

We believed we were right then, and we believe that we are right now in op-
posing this travesty on true home rule.

Wc arc convinced that a vote for home rule would be a vote for centralized
government and dictatorship, which certainly we do not want. But a vote against
home rule \v'ill be a vote for decentralized government and freedom.'

The proponents' point of view was typified by this statement of the
League of Women Voters :

Anticipating that home rule \vould result in better government by reforming county
governmental structure, the League of Women Voters of Lake County strongly
supports the approval of Home Rule for Lake County. The league feels that the
taxing power of home rule counties will make county officials more visible and
responsible to the electorate. The separation of legislative and executive powers
that will come about with electing a county executive, the concurrent checks and
balances that these branches of government \vill have upon one another, and the
subsequent acquisition of home rule powers for Lake County (whereby the county
can be creative and innovative) are strongly supported by the league.*

In addition to the League of Women Voters, information favorable to
home rule came generally from an assortment of ad hoc committees such
as Citizens United for Good Government (Winnebago County), but in other
counties there was no organized group support at all.

The absence of organized support is all the more noteworthy because
the supporters of home rule were responsible for placing the issue on the
ballot. The initiation procedure can bear a large part of the blame. It takes
a resolution of the county board or a petition signed by 2 percent of the
registered voters or five hundred voters, whiche\-er is less, to place the ques-
tion of county home rule on the ballot. Evidently excitement and enthusiasm
at having passed a new constitution motivated the proponents to put the
proposal before the voters without first ascertaining the le\el of support.
The ease with which the home rule question can be placed on the ballot is
entirely unrelated to the degree of organization, debate, education, and
plain hard work needed to pass the measure. For example, in St. Clair
County approximately nine hundred signatures initiated the referendum,
but there was an almost complete absence of support for the measure. In
fact, only 2,609 voters supported home rule in the referendum.

In short, the proponents were unsuccessful because they failed to recog-
nize the essentially political and practical nature of the problem. They
lacked the support of organized community groups and political parties.
Furthermore, their efforts were largely uncoordinated. In literature and

'Belleville News-Democrat, Mar. 13, 1972.

^ Libertyville Independent Register, Mar. 2, 1972.

statements they stressed only the procedural and structural aspects of home
rule, ignoring issues and substantive local problems. Finally, they overesti-
mated public understanding of the issue.

Not only was home rule defeated in all nine counties where it appeared
on the ballot, but the margins of defeat were large. The long-term effects,
however, may be more important than the immediate fact of defeat. The
proponents entered the fray without adequate support or preparation to
wage a competitive campaign, especially in terms of the extensive prior
public education required for reform efforts. Consequently, events that were
initiated by home rule advocates educated the public against home rule.
Because of the meager support for the measure, there was virtually no re-
buttal to the emotional, misleading, and inaccurate arguments and statements
of the opponents. Thus many voters' first exposure to the concept of county
home rule was overwhelmingly negative. Followed by the uniformity of the
defeats, this first negative exposure may constitute an unfortunate precedent,
inhibiting future adoption of county home rule.

The situation should not discourage additional attempts at county home
rule referenda. All future county referenda will be held at November general
elections. It is therefore to be expected that many of the conditions leading
to the defeats in 1972 will not be operating. Proponents of home rule may
then look forward to a greater chance of success.

HOME RULE AND LOCAL GOVERNMENT FINANCE:
AN ECONOMIST'S PERSPECTIVE

ROBERT N. SCHOEPLEIN

Illinois is increasingly an urban state, and Illinois residents in metropoli-
tan areas are confronted by problems that are a consequence of the urbaniza-
tion process. The concentration of people and productive activities magnifies
the problems inherent in such aspects of urban life as public health, safety,
housing, transportation, pollution, land use, sewage and waste disposal, man-
power, and education. The demand for expanded and refined governmental
services increases, straining the finances of urban units. Three problems in
metropolitan areas have a particularly dire effect on the finances of govern-
mental units in these areas: the fragmentation of government in a metro-
politan setting, the mismatch between citizen needs and fiscal resources
within the numerous local governments, and the frustrating legal precedent
known as Dillon's Rule.

Metropolitan areas historically have been fragmented or balkanized
into numerous independent and overlapping units of local government.
These local governmental units may provide a greater variety of public
services to their constituents than would one central metropolitan govern-
ment, but many critical social concerns in a metropolitan setting transcend
local political boundaries and may engulf the entire urban area. Illinois
has more units of local government than any other state, and attempts to
coordinate efforts among units to satisfy social needs are exceedingly difficult.
Of the nine designated standard metropolitan statistical areas (SMS As) in
the state, Chicago is the most populous, with 62.8 percent of the total state
population. The Chicago SMSA encompasses six counties containing 250
municipalities, 114 townships, 316 school districts, and over 400 special dis-
tricts. The other SMSAs also are fragmented into many local governments
on a scale reflecting their populations. The Peoria SMSA, for example,
encompasses three counties with 45 municipalities, 20 townships, 62 school
districts, and 72 overlapping special districts.

The problems of resolving social needs within fragmented urban areas
are intensified by a mismatch between local fiscal resources and citizen needs
among the many units of local government. The need for certain local public

services varies among households. "High-cost" citizens are individuals who
require many local government services, regardless of government's capacity
to fund such services. The elderly, the very young, the unemployed, and the
poor are categories of high-cost citizens who consume a disproportionate
share of local public services. High-cost citizens have become increasingly
concentrated in sections of central cities and in isolated municipal and unin-
corporated pockets of poverty throughout the rest of the metropolitan area.
The balkanization of urban areas also has resulted in wealthy enclaves among
the governmental vmits. The Advisory Commission on Intergovernmental
Relations has noted that "because the concept of local fiscal disparities is of
necessity a relative matter, the political splintering of Urban .\merica along
income and racial lines produces its share of municipal winners as well
as losers."^

The third problem of urban public finance - — that of Dillon's Rule of
restrained local government powers — has been particularly frustrating to
central cities in their efforts to cope with urban problems. The states in most
instances have reseiA-ed for themselves the broad-based taxes that generate
significant revenues, leaving municipalities and counties in the uncomfort-
able position of having to bargain in the state political arena for authoriza-
tion to introduce new local taxes.

Three approaches have recently been put forth nationwide to mitigate
the financial problems of urban areas. First, the federal and state govern-
ments have been urged to assume primary or complete fiscal responsibility
for certain public services such as welfare and education. Second, states
have been urged to share tax revenues with local governments. Third, the
federal government recently has adopted a general revenue-sharing pro-
gram to redistribute a specified portion of federal tax receipts back to mvi-
nicipalities, counties, and other general purpose units of local government.

Delegates to the Sixth Illinois Constitutional Convention were aM'are
of the crucial importance of government finance to meaningfvil home rule
and to the balance of political power blocs. Delegate John Wenum as a
representative for the Committee on Local Government Majority Report
spoke to the first element :

[Revenue power] is such ... an overriding concern for meaningful home rule to
be implemented. Lacking revenue sources — lacking a protection of revenue sources
— home rule, which presupposes in most instances that there will be a greater level
of action, more functions, more services, than probably were the case before, there
is only one way that the higher level of functions and services can be supported and
that is by having some additional revenue powers.'

' Advisory Commission on Intergovernmental Relations, Urban America and the
Federal System (Washington, D.C.: GPO, 1969), p. 12.

^ Illinois, Sixth Constitutional Convention, Record of Proceedings, Verbatim
Transcripts (Springfield, 1972), IV:3060.

Proposals for resolving the fiscal problems of urban governments must
relate both to the nature and magnitude of the actual situations if meaning-
ful progress is to be made. Local political fragmentation and the historical
constraints of Dillon's Rule provide a setting for a fiscal dilemma. The magni-
tude of the fiscal crisis is determined largely by the extent of the fiscal mis-
match between local citizen needs and local fiscal resources. We will examine
this fiscal mismatch issue at some length, to ascertain whether local govern-
ment fiscal problems in reality are a tempest in a teapot, or whether the
suggested approaches to solution in fact are adequate for the task.

THE MISMATCH OF CITIZEN NEEDS AND FISCAL RESOURCES:
DECREASING OR ACCELERATING?

The largest segment of high-cost citizens are those individuals who need
local public senices but who do not participate directly in the economic
productivity of the community. These are the \ery young, the very old,
and the unemployed, all of whom tend to have inadequate personal wealth
to satisfy basic needs. These high-cost citizens are not distributed in the same
percentile numbers among municipalities throughout the Chicago metro-
politan area, but rather tend to be concentrated in the core city. The nature
of this fiscal mismatch in urban centers was documented in a 1968 study by
Philip Meranto, using data applicable to the mid-sixties.^ In that year, the
fiscal disparities between the central city and the suburban municipalities as
a group were striking.

Do recent trends and developments suggest whether local government
fiscal problems in urban areas nationwide and in Illinois are accelerating or
are being resolved? It is difficult to generalize from recent experiences of
central cities and suburbs on a national scale. There is considerable diversity
among metropolitan areas in the extent to which the economic and social
characteristics of central cities differ from the remainder of their urban
areas.'' One can look specifically to the Chicago metropolitan area, however,
to discern changes in the concentration of social problems and in the dis-
tribution of tax revenues there.

Let us examine the most recent trends in the Chicago area for each of
the basic categories of high-cost citizens. Children are high-cost citizens be-
cause of their need for public education, which generally is over one-half
of total government expenditures at the local level. In the fifties and early
sixties the outlying suburbs had the image of being populated by young
couples with school-age children. Indeed the 1960 census affirmed that there

'Philip Meranto, '"Metropolitanization: Implications for State-Local Finance,"
in Glenn W. Fisher, ed., Illinois State and Local Finance (Urbana: Institute of Gov-
ernment and Public Affairs, University of Illinois, 1968), pp. 13-21.

* Marjorie C. Brazer, "Economic and Social Disparities between Central Cities and
Their Suburbs," Land Economics 43 (August 1967) :294-302.

was almost a 12 percent difference between Chicago and the suburbs in the
proportion of children in the population. The 1960 census reported that
children age sixteen and under represented 24.6 percent of the total popula-
tion of the city of Chicago. For the SMSA outside Cook County the com-
parable figure was 36.2 percent.^ The 1970 census indicates that while
children as a percent of total population in the five outlying counties (Du
Page, Kane, Lake, IMcHenry, and Will) had declined slightly to 35.9 per-
cent, children age sixteen and under in Chicago's population increased to
30.4 percent.^

The composition of the school-age population is critically important for
local education costs. Educators have demonstrated that disadvantaged chil-
dren from poverty households necessitate a greater than average investment
in fiscal resources to sustain achievement. In evaluating the differential costs
of education nationwide, the National Education Finance Project estimated
that the cost weighing of disadvantaged, or culturally deprived, children
ranges from 1.6 to 2.9 times that of a normal child. ^ The federal government
in 1965 initiated a categorical aid program — identified as Title I com-
pensatory education assistance — to school districts serving children from
poverty level households.

The number of children from poverty level households as a basis for
distributing federal aid initially was determined from 1960 census data. The
school district that comprises the city of Chicago recorded 53,091 children
eligible under Title I in school year 1966-67, the second year of the program.^
These children represented 10.5 percent of the average daily attendance in
Chicago schools for that year. The comparable ratio of Title I school chil-
dren eligible to average daily attendance in school districts comprising the
five suburban counties was 3.3 percent for the same year.

The basis for identifying eligible children for Title I assistance has been
updated and liberalized in the ensuing five years. The new data indicate
that the relative fiscal position of the core city school district has deteriorated
significantly. The Chicago school district now reports 209,131 school-age
children eligible for Title I assistance, or 43.3 percent of average daily
attendance for school year 1971-72. The percentage of children eligible for
Title I in the outer five counties has risen only to 7.1 percent. Because the

'U.S., Bureau of the Census, Census of Population: 2960. General Population
Characteristics: Illinois (Washington, D.C.: GPO, 1961), tables 20 and 27.

'U.S., Bureau of the Census, Census of Population: 1970. General Population
Characteristics: Illinois (Washington, D.C.: GPO, 1971), tables 24 and 37.

' William P. McLure and Audra May Pense, Early Childhood and Basic Ele-
mentary and Secondary Education: Needs, Programs, Demands, Costs, National Edu-
cation Finance Project, Special Study No. 1 (Urbana: Bureau of Educational Research,
College of Education, 1970), table 16, p. 96.

* Illinois, Office of the Superintendent of Public Instruction, Exceptional Children
Division.

federal government pays only a portion of the incremental funds necessary
to support compensatory students according to cost differentials (and such
federal support is in jeopardy at this time), changes in the relative weights
of compensatory students are an indicator of the magnitude of fiscal resource
requirements faced by core city schools. The Chicago school district is a
separate fiscal entity from the city of Chicago. The district's property tax
receipts are supplemented by the state through a foundation-grant equaliza-
tion formula. Nonetheless, the Chicago Unit School District and the city of
Chicago both generate tax revenues from the same property base. The in-
creased fiscal plight of the school district therefore affects the tax potential
of the city adversely.

The elderly are another segment of high-cost citizens: what is their dis-
tribution over the metropolitan area? In 1960 Chicago had a slightly larger
proportion of residents over age sixty-four than did the five suburban coun-
ties (9.8 percent to 7.3 percent). Although the total population of Chicago
declined during the sixties, the absolute number of elderly increased. The
elderly now comprise 10.6 percent of Chicago residents, while in the outlying
five counties residents over age sixty-four have declined to 6.9 percent of
total population.^ Thus, in 1970 the relative impact of the elderly in Chicago
is one and one-half times that of the suburban counties.

The distribution of the chronically unemployed throughout the Chicago
metropolitan area presents a formidable problem to local governments. In
most communities the numbers and demographic composition of the un-
employed are correlated with local expenditures for public health, welfare,
safety, housing, and other public programs. In the mid-sixties the unemploy-
ment rate in central cities nationwide and in Illinois was twice that of the
suburban rings. ^° This situation remained unchanged in 1970; the 9.6 per-
cent unemployment rate in Chicago was over two and one-half times the
3.6 percent rate for the five suburban counties." The aggregate Chicago
SMSA has maintained a lower rate of unemployment than the state or the
nation throughout the underemployment period beginning in 1966.^^ As
statewide and national employment improved during 1967, unemployment
in the core poverty areas of Chicago remained unchanged. The modest de-
cline that was realized in U.S. central cities occurred almost exclusively
among whites." The overall 1970 Chicago unemployment rate of 9.6 percent

* U.S., Bureau of the Census, Census: 1970. General Population Characteristics:
Illinois, table 16.

"Meranto, "Metropolitanization," p. 16.

"U.S., Bureau of the Census, Census of Population: 1970. General Social and
Economic Characteristics: Illinois (Washington, D.C.: GPO, 1972), table 121.

" Illinois, Employment Service, Area Manpower Review: Chicago SMSA (Spring-
field, July 1972), p. 5.

" Paul M. Ryscavage and Hazel M. Willacy, "Employment of the Nation's Urban
Poor," Monthly Labor Review 91 (August 1968) :15-21.

was the weighted sum of 6.4 percent unemployment for whites and 11.7 per-
cent for blacks. Moreover, whites also had a jobless rate of 14.3 percent for
youths aged sixteen to twenty-one years not in school; the comparable rate
for black youths in Chicago was an astounding 35.8 percent.

Between 1966 and 1972 the total number of persons receiving all forms
of public assistance in Illinois rose two and one-half times. ^* In 1966 through-
out the state an average of 37 persons per 1,000 population received some
category of public assistance. The Cook County figure for that year was 48
persons per 1,000, and the average for the five suburban counties was 8 per
1,000 population. In the last six years these suburban counties experienced
an increase in public assistance rolls to 29 persons per 1,000 population, but
in Cook County in October 1972 the average had increased to 129 persons
per 1,000 population receiving some form of public assistance.

To answer the question posed earlier — Is the mid-sixties mismatch be-
tween social senice needs and fiscal capacity abating? — the answer is
clearly no. The figures on all groups of high-cost citizens - — school-age chil-
dren, the aged, the unemployed — show that concentrations of these groups
are growing in the central cities at a faster rate than they are growing in
the suburbs.

The fiscal problems arising when high-cost citizens are concentrated in
a few municipalities within a metropolitan area might be mitigated if state
and local fiscal resources were reallocated to these social servdce crisis areas.
That is, the federal government or state government could mitigate inequities
among local governmental units in the provision of local public services by
assuming a greater fiscal responsibility for specific services. The administra-
tion of the programs, however, would remain essentially with local govern-
ment officials. Such a shift in resources has occurred to a moderate extent
in Illinois during the past six years. In 1966-67 the state provided the Chicago
Unit School District $86.8 million in aid, or 19.0 percent of current expenses,
through the foundation support program. State support to all common
schools averaged 26.7 percent of total state and local funds for that year.
By 1972-73 state support to the Chicago school district had increased to
$228 million, or 34.7 percent of per pupil current operating expenses. During
the same period the state's portion of total state and local funds for all
common schools increased to 41.2 percent. ^^ The state also has expanded

" Illinois, Department of Public Aid, Public Aid in Illinois (Springfield, Novem-
ber 1966), p. 28. Monthly Exhibits for October 1972 (Springfield, December 1972),
table 1.

"^ Illinois, Office of the Superintendent of Public Instruction, Office of Research.
Also, Annual Statistical Report of the Superintendent of Public Instruction, 1966-67
(Springfield, 1971), tables 3, 15, 16. The Chicago Unit District public count used
is Average Daily Attendance.

functional grants to other special purpose districts and to general purpose
local governments for specific social programs.

The core city's needs have outstripped permitted tax sources, however,
necessitating continued reliance on the local property tax. Chicago raised
$80 million through general property taxes in 1960, or 44.0 percent of reve-
nue for the Corporate Purposes Fund. General property tax receipts had
increased by 125 percent in the ensuing ten years, to $181 million in 1970,
yet these increased revenues represented an almost stable 45.6 percent of
total Corporate Purposes Fund receipts for 1970. ^"^

The Illinois legislature in 1969 adopted a state income tax that included
provisions to share one-twelfth of ensuing income tax revenues with munici-
palities and counties.^' This important legislation gave Illinois almost a
three-year headstart over the federal government in general revenue sharing
to Illinois cities and counties. The funds are redistributed on a strict per
capita basis regardless of concentrations of high-cost citizens. Chicago's re-
ceipts from the shared income tax totaled $23.8 million, or 6.3 percent of
taxes collected for the Corporate Purposes Fund during calendar 1971. These
shared revenues also represent 5.4 percent of revenues from all sources to
the Corporate Purposes Fund in 1971. The city of Chicago's receipts from
the state income tax were $25.1 million, or 6.3 percent of total Corporate
Purposes Fund receipts in 1970; the decline in absolute and relative con-
tributions of these revenues between 1970 and 1971 largely reflects the
decline in income tax receipts during an economic recession.

In October 1972 the federal government also passed a revenue-sharing
program for local general purpose units of government. ^^ The State and
Local Fiscal Assistance Act of 1972 was retroactive to January 1, 1972. The
federal funds for the initial five years are a nominal amount, averaging
about 5 percent of total operating budgets for these general purpose local
government units in Illinois. The federal revenue-sharing program, unlike
the state income tax sharing scheme, is based on three factors for fund dis-
tribution which are sensitive to concentrations of high-cost citizens. Monies
under the federal program depend on a local government's population, local
tax effort, and average per capita income. The federal program in no sense
guarantees additional monies because of more intensive social problems in
a particular community, but to the extent that a municipality has a sufficient
number of poverty households to reduce average per capita income appre-

^° Chicago Home Rule Commission, Report and Recommendations (Chicago:
University of IlHnois at Chicago Circle, 1972), p. 378. Also City of Chicago, Annual
Report of the Comptroller. Select years.

"111. Rev. Stat., ch. 120, sees. 1-101 (1971).

'' 31 U.S.C, sec. 1221 et seq. (Supp. II, 1972).

ciably and is trying through local tax effort to cope with its problems, it will
receive additional federal revenue-sharing funds. Chicago's share for calendar
1972 is estimated at $61 million, or about 13 percent of the city's current
Corporate Purposes Fund budget. ^^

Both state and federal revenue-sharing programs add a new dimension
to the finances of local general purpose governmental units. Whatever new
revenue sources are permitted home rule units under the 1970 state con-
stitution, these sources can be viewed as supplements to receipts from two
revenue-sharing programs. We must remember, however, that local govern-
ment finance deals with social problems that are not the responsibility of
general purpose governments or of specific municipalities. In the past Con-
gress has recognized the metropolitan-wide nature of such problems as health,
transportation, compensatory education, and housing. In the last session
Congress considered a special purpose form of revenue sharing, but the
Community Development Revenue Sharing Program was not approved.
At the time of this writing the Nixon administration and Congress are in
conflict over the fate of federal categorical assistance programs in urban and
rural areas. There is great uncertainty over the form and magnitude of
federal funding in the immediate future for metropolitan-wide social ser-
vices. Without such attention to specific problems, any new fiscal powers
granted home rule municipalities will not resolve the metropolitan plight of
jurisdictional mismatches between need and fiscal resources.

NEW FISCAL OPPORTUNITIES AND CONSTRAINTS FOR HOME RULE UNITS

Given the magnitude and directions of change in urban social needs,
how relevant and appropriate are the fiscal powers granted to Illinois home
rule units in the 1970 constitution? Delegates to the Sixth Constitutional
Convention acknowledged the critical nature of urban problems within the
state and the need for broadened local powers to meet these problems.
In its Majority Report the convention's Committee on Local Government
stated :

The Committee believes local government should be strengthened because it is
closer to the people it serves than are other forms of government and, as a result,
on balance is likely to be more responsible to the citizenry, more sensitive to com-
munity needs and more efficient and effective in meeting those needs.^°

Yet the specific committee recommendations and subsequent floor debate
reflected the political nature of the convention and the political interests of
the respective "nonpartisan" delegates. The local government article as pro-

" Illinois, Commission on Intergovermnental Cooperation, Revenue Sharing Up-
dated (Springfield, 1973).

"" 111., Sixth Const. Conv., Record of Proceedings, Committee Proposals-Member
Proposals, Committee on Local Government Proposal 1, VII:1605. Emphasis omitted.

posed, amended, and adopted distributes powers selectively among dominant
political blocs so as to balance and preserve these interests in the foreseeable
future. Only municipalities and counties are eligible for meaningful extended
fiscal powers to deal with present and anticipated urban problems. The
Local Government Committee itself acknowledged that the article proposed
to give greater powers to certain units of local government through the home
rule provisions of the new article. ^^

The new Illinois Constitution does provide new fiscal powers to home
rule units. One must read the home rule section (article VII, section 6) to-
gether with other relevant articles of the constitution, however, to ascertain
the specific breadth of these powers. The new constitution indeed does pro-
vide that within constraints home rule units do not have to go to the General
Assembly for special or class legislation to authorize new taxes, other revenue
sources, or fiscal administrative procedures. To appreciate the new fiscal
opportunities, however, one must temper the general grant of powers to
home rule units with a hard appraisal of accompanying constraints.

A casual reading of the general home rule grant might lead one to con-
clude that the new constitution indeed provides a broad mandate to munici-
palities (and potentially to counties) to generate revenues enabling them
to perform the functions demanded of them. The general grant of power in
section 6(a) does specify: "Except as limited by this Section, a home rule
unit may exercise any power and perform any function pertaining to its
government and affairs including, but not limited to, the power ... to license;
to tax; and to incur debt." The home rule section of the new constitution
requires a three-fifths majority of the members elected to each house of the
General Assembly to preempt or deny a home rule taxing function (section
6(g) ) . The constitution in section 6(h) emphasizes this point in the declara-
tion of exclusivity: "The General Assembly may provide specifically by law
for the exclusive exercise by the State of any power or function of a home
rule unit other than a taxing power. . . ."

Although the constitution clearly establishes taxation as a crucial home
rule power, it also sets down explicit, stringent limitations. Section 6(e)
specifies that "a home rule unit shall have only the power that the General
Assembly may provide by law ... to license for revenue or impose taxes upon
or measured by income or earnings or upon occupations." Let us first examine
the constraints on licensing. Federal courts have ruled that the distinction
between licensing to regulate and licensing for revenue is arbitrary, and the
United States Supreme Court has ruled that the power to license encompasses
both the power to regulate and the power to tax. Yet an amendment at the
constitutional convention to delete the words "to license for revenue" from

Ibid., VII:1570-71.

section 6(e) of article VII, and thus give home rule units the general power
to license for local objectives, was defeated in a hand vote. Thus a local
licensing ordinance designed both to regulate and generate revenues to be
applied to reach social ends in the regulated industry is suspect under the
new constitution. The local power to license has traditionally accomplished
these joint objectives in such enterprises as drayage and hauling, liquor
distribution and retailing, and, more recently, outdoor advertising.

The constitutional restraint against imposing taxes upon or measured by
earnings or upon occupations is severe, particularly when considered to-
gether with other fiscal restrictions in the document. Economists identify
three general bases for imposing taxation : ( 1 ) taxes related to the ownership
or transfer of wealth, (2) taxes related to income, and (3) taxes related to
business and personal spending. The ownership of wealth has, for tax pur-
poses, taken two forms, real property and personal property. With regard to
classification of real property, counties with populations less than 200,000
are restricted by a uniformity of valuation section in the revenue article. ^-
The eight counties in the 1970 Census with populations in excess of that
amount are also restricted :

Subject to such limitations as the General Assembly may hereafter prescribe by law,
counties with a population of more than 200,000 may classify or continue to classify
real property for purposes of taxation. Any such classification shall be reasonable
and assessments shall be uniform within each class. The level of assessment or rate
of tax of the highest class in each county shall not exceed two and one-half times
the level of assessment or rate of tax of the lowest class in that county. Real property
used in farming in a county shall not be assessed at a higher level of assessment
than single family residential real property in that county."

Thus several recent innovations advocated by fiscal economists to alleviate
urban blight or provide for more orderly land conversion — such as site
value taxes, water right or air right taxes, farm use taxes — can be restricted
in application and prohibited outright in various sections of the state.

Pragmatic taxes on ownership of wealth are further restricted by the
revenue article section on personal property taxes that specifies, "On or
before January 1, 1979, the General Assembly by law shall abolish all ad
valorem personal property taxes. . . .""* Many businessmen, farmers, and
householders have considered personal property taxes to be onerous and
capricious levies. These taxes when classified by object such as autos, boats,
and airplanes also have served as in-lieu user charges for municipalities and
other units of local government. Now this specific form of taxation is
prohibited.

The constitutional restraint against home rule units imposing taxes upon

"Art. IX, sec. 4(a).
"Art. IX, sec. 4(b).
" Art. IX, sec. 5.

or measured by income or earnings precludes most familiar broad-based
taxes related to income. The delegates to the constitutional convention
clearly intended to deny home rule units the power to impose local business
or personal net income taxes. The 1972 Report and Recommendations of
the Chicago Home Rule Commission suggests that the convention delegates
meant restrictions on home rule taxes to apply to net income or earnings
taxes, thereby permitting gross income taxes or earnings taxes. Such business
or personal taxes presumably would not permit exemptions or deductions
from gross receipts. This argument is tenuous, as the Chicago Home Rule
Commission itself observes : "Accountants and lawyers can doubtless advance
arguments that 'gross receipts' are not 'income.' But whether this would
convince the court that gross receipts are not income, the court itself will
have to decide. "^'^

If no taxes can be imposed on income or earnings, home rule units can
still impose taxes on the entirety, or elements, of business costs without Gen-
eral Assembly approval. Thus a value-added tax has been suggested. A value-
added tax has been defined as a levy on all the costs of production and
distribution, except the cost of raw or semiraw materials used in the pro-
duction of goods and services. As the Chicago Home Rule Commission has
noted, however, historically value-added taxes have been employed by na-
tional governments rather than by states and municipalities because of
severe economic dislocation and adverse allocation effects at the subnational
level. Local firms would have to apportion total business on the basis of
activities within and without the respective taxing jurisdiction. Such a tax
also may add to retail sales prices in a pyramiding fashion, discouraging
local purchases. The commission noted that there are those who also see
nothing in a value-added tax that cannot be better attained through retail
sales taxes.

A retail sales tax is one of the several possible levies in economists' third
broad category of taxes, those related to business and personal spending.
Under the 1970 constitution home rule units in Illinois may clearly impose
retail sales taxes without further General Assembly authorization. Here a
technicality may frustrate local officials. The state presently has a 4 percent
Retailers' Occupation Tax, with statutoiy authority for municipalities to
adopt a supplemental, or "piggy-back," tax rate of one percent. In the state
courts this tax has been regarded as a levy on the privilege of engaging in the
occupation of selling tangible personal property at retail. As "taxes upon or
measured by . . . occupations" are expressly prohibited under section 6(e) of
article VII, home rule units cannot simply adopt a higher incremental local
tax rate. A permissible retail sales tax would have to be a consumers' trans-
action tax, based on a different legal theory. The question then arises whether

" Chicago Home Rule Commission, Report and Recommendations, p. 436.

the courts would allow two identical taxes resting on different legal theories
to be joined under single administration, specifically the present efficient
"piggy-back" arrangements between the state and municipalities. The alter-
native is an elaborate, costly local tax administration system to collect an
additional one-half percent or one percent sales tax.

The specific constraints in the constitution may cause other problems and
necessitate various legal maneuvers for home rule units desiring to tax in
order to meet local responsibilities. A home rule unit may adopt a payroll tax,
but clearly the ordinance must be drawTi so that in legal theory the levy
cannot be interpreted as a tax upon or measured by income, earnings, or
occupations. The ordinance must specify unambiguously that the tax is a levy
upon the firm, measured by payrolls as one of its costs. Even then, the
ordinance may be challenged as violating the intent of the constitutional con-
vention delegates. Local Government Committee members commented that
"occupations" were included in the restrictive section to preclude any oppor-
tunities for local income or payroll taxes.

If the few sections restricting the taxing powers of home rule units are so
inclusive, what is left? Certainly several excise taxes and other transfer taxes
are possible for home rule unit adoption without General Assembly approval.
The Chicago cigarette tax adopted on December 10, 1971, is an illustration.
The incidence of this tax is specified by ordinance as upon the consumer. The
home rule unit's power to impose such a cigarette tax was upheld by the Illi-
nois Supreme Court in the first case dealing with home rule revenue powers. ^^
This five cents per package excise tax is expected to generate about $20 mil-
lion for the city of Chicago in its first twelve months of operation. This yield
would represent about 5 percent of present receipts from all sources to the
city's Corporate Purposes Fund.

The receipts from the cigarette tax may not be large in relation to the
total city budget, but a supplemental increase in revenues of 5 percent to the
city budget may be significant to offset portions of city program expansion.
Practically speaking, this adopted tax may be the most productive of the
specific excises. The Chicago Home Rule Commission weighed one proposal
for a beer tax of ten cents per twenty-four bottle case, over and above the
present state beer tax of seven cents per gallon. The case tax represents about
1.2 cents per gallon local tax, a current yield for Chicago of somewhat less
than $10 million, or less than 2 percent of the present city budget. Moreover,
the Chicago Home Rule Commission noted, "If Illinois should act first [on a
beer tax increase], the opportunities for a separate Chicago tax may be
exhausted."^^

'" Bloom V. Korshak, 52 111. 2d 56, 284 N.E.2d 257 ( 1972) .

" Chicago Home Rule Commission, Report and Recommendations, p. 409.

Home rule units indeed do have an opportunity to propose new, unique,
and sometimes esoteric taxes under the general grant of constitutional powers.
The Chicago Home Rule Commission report provides the most extensive list
of taxes "probably" acceptable under the constitution. As mentioned, most
of these possible taxes fall under the third economic basis for taxation —
transactions related to business and personal spending. The list includes car-
bonated beverage taxes, gasoline taxes, parking taxes (adopted by the city
of Chicago in December 1971; expected first year receipts are estimated at
$3.5 million), airline boarding taxes, commuter boarding taxes, stock transfer
taxes, commodity transfer taxes, miscellaneous licenses, and user charges for
special services such as police services at special events.

The revenue potential of these specific excises seems nominal when con-
trasted with the revenue generated by broad-based taxes. The general prop-
erty taxes contribute a net $180 million to Chicago's Corporate Purposes
Fund ; the one percent "piggy-back" on the state Retailers' Occupation Tax
(retail sales tax) generates $65 million; the Municipal Public Utilities Tax
adds another $32 million to the Corporate Purposes Fund, Most broad-based
taxes either are prohibited or are impractical for home rule unit adoption.
Finally, we must reiterate that only select classes of local governmental units
are granted any home rule powers at all. These are municipalities over
25,000 populadon, smaller municipalities electing such status by referendum,
and potentially the counties.

FUTURE ALTERNATIVES FOR ILLINOIS LOCAL GOVERNMENT FINANCE

In the face of political fragmentation of the tax base in most Illinois
metropolitan areas and the misallocation of responsibilities for many urban
public programs, home rule units would have difficulty resolving areawide
problems even in the absence of constitutional constraints on adopting popu-
lar broad-based taxes. Delegates to the Illinois consdtutional convention
acknowledged that home rule status and general powers would not be an
instant panacea for metropolitan ills. Other organizations such as the Advisory
Commission on Intergovernmental Relations also have become more prag-
matic in their recommendations over the last half-dozen years. The ACIR
now has reservations over the realities of comprehensive areawide govern-
ments ("metropolitan government") and the probabilities of consolidation
among general purpose and special purpose units of local government.^^
Among those likely to oppose such changes are the people who now benefit
from the differences in tax levels. Social disparities and established interests
in maintaining local government fiefdoms frustrate movements toward con-
solidation.

^ ACIR, Urban America and the Federal System, pp. 81-82.

One possible way to alleviate fiscal overburdens and disparities in local
government finance \vould be to i^ealign responsibilities for public education
and welfare. The principal local government expenditure statewide is in the
area of education. The new Illinois Constitution specifies, "The State has
the primary responsibility for financing the system of public education. "^°
Recent court decisions in other states also have drawn attention to whether
Illinois is equalizing fiscal resources among its 1.090 school districts. The state
presently is paying 41.2 percent of all state and local governmental expendi-
tures on public schools for fiscal 1972-73, up from 29.6 percent five years
ago. If "primary responsibility" is narrowly interpreted as over one-half of
total spending and Illinois were to increase the state portion to, for example,
55 percent, this would represent a shift in tax sources of $390 million from
the local property tax to state sources, possibly the state income and sales taxes.

A second area of large governmental expenditure is public welfare. Public
assistance costs have risen rapidly since 1965. In studying the financing of
adequate public welfare the ACIR concluded "that maintaining a properly
functioning and responsive public assistance program as presently operating
is wholly beyond the severely strained fiscal capacity of state and local gov-
ernment to support. The Commission therefore recommends that the Federal
Government assume full financial responsibility for the provision of public
assistance."^" The federal government indeed has increased fiscal support of
public welfare programs in the ensuing seven years, though the formulas for
financing several major public assistance programs continue to call for
equally shared federal and state fiscal responsibility. Direct local government
contributions are currently estimated at less than 3.5 percent of total spending
in Illinois on public assistance. Complete federal assumption of fiscal respon-
sibility for public welfare therefore would provide immediate relief to the
state, rather than to local governments. The realignment of fiscal respon-
sibilities ultimately benefits local governments, however, in a stepwise fashion
in that the pressure is reduced on the major state taxes that are shared \\ith
municipalities. If a greater portion of federal and state monies is assigned
through realignment of fiscal responsibilities to resolve local problems, then
the amounts of additional revenues that can be generated by home rule units
under the new taxing powers will become relatively more important as supple-
mentary sources of finance.

The recent developments in state and federal revenue sharing to general
purpose local government units set a significant precedent for changing rela-
tionships in fiscal federalism. In particular the federal allocation formula
provides some incentive for general purpose governments to provide services

''Art. X, sec. 1.

'"ACIR, State Aid to Local Governments (Washington, D.C.: April 1969), p. 16.

to select component areas rather than to create additional special districts.
The effect of these voluntary fiscal incentives and indeed the entire revenue-
sharing program rests upon the magnitudes and assured maintenance of
these new intergovernmental fiscal transfers. Both the federal and the Illinois
revenue-sharing programs are modest, and present incentives through revenue
sharing to consolidate local government responsibilities are correspondingly
weak. Moreover, both revenue-sharing programs are vulnerable to possible
legislative action reducing local government shares. Proponents of increased
Illinois state funding of public school expenditures, for example, have pro-
posed that some portion of incremental state monies be realized through a
total dollar ceiling on present Illinois state income tax shares to general pur-
pose local governments. This recommendation, if adopted at the present
state disbursement level, would gradually reduce the state revenue sharing
from the legislated 8.3 percent of income tax receipts to lesser and lesser per-
centages as overall income tax receipts respond to economic growth. The
federal program also is tenuous; the Fiscal Assistance Act has a legislated Hfe
of only five years. The present confusion over the future of federal cate-
gorical aid programs mentioned previously is an excellent illustration of the
precarious position of local governments which rely on intergovernmental
fiscal transfers.

Even with federal and state assumption of increased fiscal responsibilities
for education and public assistance, plus increased revenue sharing, the metro-
politan problem of numerous fragmented units of local government trying
to resolve complex, areawide social needs would remain. One possible resolu-
tion rests with the increased potential of county government. The local gov-
ernment article gives counties increased power and flexibility in assuming
responsibilities. A county qualifies for home rule status if its government has
a chief executive officer elected by its residents. Home rule counties would
realize the same new taxing powers as do home rule municipalities. Some
potential taxes which may not seem viable at the municipal level because of
close municipal competition or opportunities for tax avoidance may be
instituted at a countywide level. Although the constitution specifies that a
municipal ordinance shall prevail within its jurisdiction if there is conflict
between the municipal ordinance and a home rule county ordinance, the
Illinois Supreme Court recently ruled the following:

In the case before this court there is no conflict or inconsistency within the meaning
of section 6(c) which requires us to hold that the Plaintiff's [city of Evanston] tax
ordinances must prevail to the exclusion of the defendant's [county of Cook] tax
ordinance within the corporate limits of these municipalities. This is simply a situa-
tion in which two separate and distinct units of local government are exercising the
power which they possess by virtue of section 6(a) of Article VII of the 1970

constitution to tax the same transaction. (All units of local government in this case
are home rule units.)"

Home rule counties, like home rule municipalities, may impose additional
taxes upon areas within their boundaries for the provision of special services
to those areas and may provide for such debt incurred. ^^ Thus one reason
for creating special purpose governments within a home rule county is
eliminated. Cook County is the only home rule county at present. \Vhether
residents of other urban counties will vote for governmental reorganization
resulting in home rule status and \vhether such home rule counties would
assume additional governmental powers and responsibilities are at this time
matters of conjecture.

We are at a crucial time in the redefinition of local government respon-
sibilities under our federal system of government. The new revenue sharing
programs set a precedent in applying receipts from broad-based taxes to local
government programs conceived and administered at the local level. In the
sense that a dollar is a dollar from whatever source, intergovernmental fiscal
transfers can be viewed as a positive step to mitigate the financial plight of
Chicago and other cities. But revenue sharing is not a substitute for truly
broad home rule taxing powers. If local governments continue to hold re-
sponsibility to alleviate social concerns within their jurisdictions, then these
governments also ought to have the option of choosing from a ^v•ide spectrum
of tax sources the most appropriate tax to generate needed revenues. The
constitutional restrictions on home rule taxing po^vers and other local govern-
mental taxing powers may so hamstring Chicago and other central cities that
local government officials again may have to undertake the familiar pil-
grimages to the state legislature for fiscal relief.

^ City of Evanston v. County of Cook, 53 111. 2d 312, 291 N.E.2d 823 (1972).
*= Art. VII, sec. 6(1).

HOME RULE AND LOCAL GOVERNMENT FINANCE:
A LAWYER'S PERSPECTIVE

J. NELSON YOUNG

In his paper on "Home Rule and Local Government Finance: An Econo-
mist's Perspective" (pp. 73-88), Professor Schoeplein emphasizes the critical
need for additional financial resources to enable local governmental units in
Illinois to provide essential services. Statistical data cited by Professor Schoe-
plein demonstrate not only that the needs for these services are increasing in
staggering proportions, but also that they are unevenly distributed among the
local governmental bodies.

Excluding the possibility of shifting direct responsibility for certain
governmental services to the state or federal government, there are three
possible ways of alleviating the critical fiscal needs of local government:
federal revenue sharing, state revenue sharing, and the utilization of addi-
tional local revenue measures. It is the objective of this paper to evaluate
the revenue po^vers of the state and local governmental bodies in the light
of the Illinois Constitution of 1970 and recent judicial developments there-
under. This e\'aluation requires consideration of the revenue article of the
new constitution and its impact upon home rule units and other local
governmental bodies.

TAXING POWER IN GENERAL

For a period of thirty-seven years from 1932 when Bachrach v. Nelsov}
was decided until 1969 when Bachrach was overruled by Thorpe v. Mahin,^
state and local governmental bodies in Illinois were limited in their exercise
of the taxing power "to (1) property taxes on a valuation basis; (2) occupa-
tion taxes; and (3) franchise or privilege taxes."^ By adopting a narrow and
erroneous rule of construction,* and by classifying an income tax as a property

' 349 111. 579, 182 N.E. 909 (1932).

H3 111. 2d 36, 250 N.E.2d 633 (1969).

' 349 111. at 588-89, 182 N.E. at 913.

* In Bachrach, the court took the position that the state held only those powers
to tax which were specifically enumerated in the constitution. The long-prevailing rule
of construction is that the state has all powers not specifically prohibited by the con-
stitution. In a contemporaneous decision (Miles v. Dep't of Treasury, 209 Ind. 172,
199 N.E. 372 (1935)) the Indiana Supreme Court described the prevailing rule in

tax, the Bachrach decision not only deprived the state of a major source of
revenue, but also unduly delayed any significant reform in the state tax
structure.

The decision in Thorpe v. Maliin sustaining a general income tax came
at a propitious time — a few months prior to the convening of the Sixth
Illinois Constitutional Comention. In removing the straitjacket imposed by
Bachrach, the Thorpe decision provided a change in constitutional philosophy
and a datum point for the new revenue article. The convention adopted this
philosophy by providing in the revenue article of the 1970 constitution that
"the General Assembly has the exclusive power to raise revenue by law except
as limited or otherwise provided in this Constitution."^ As indicated by the
report of the Committee on Revenue and Finance, this language \\as intended
to avoid the problem of narrow construction which had arisen under the
former constitutional provisions.^ Although the new revenue article does
impose certain restrictions upon the exercise of the taxing po^\■er, it is clear
that except for these specific limitations the taxing power of the state is a
plenary power. In a real but general sense, broadening of the state power to
tax redounds to the benefit of the local governmental bodies of the state.

STATE INCOME TAX

At this juncture, the importance of the state income tax to the state's
fiscal structure is paramount — not only in its productivity, but also in its
flexibiHty and potential. In the fiscal year 1971, the first full fiscal year of
its application, the income tax produced $1,012 billion, or 33.8 percent of
total state tax collections, compared with $.993 billion, or 33.2 percent from
sales and use taxes, the second ranking group of taxes in total collections.
In the fiscal year 1972, income tax collections totaled $1,136 billion, or 34.5
percent of total state tax collections, as compared to $1.1 billion, or 33.4
percent from sales and use taxes."

Although article IX, section 3(a), of the constitution of 1970 prohibits
a graduated income tax and limits the differential in rates as between corpo-
rations and individuals to a maximum ratio of 8 to 5, the income tax pos-

the following terms: "The power to tax is inherent in, and essential to, the existence
of the state, and may be exercised without limit upon property, occupations, and activi-
ties carried on within the state unless prohibited by state or Federal Constitutions. . . .

"The right to tax is not a constitutional grant, but exists independently, and con-
stitutional provisions regarding taxation operate as limitations only on an otherwise
unlimited power." (209 Ind. at 176-77, 199 N.E. at 374).

= Art. IX, sec. 1.

* Illinois, Sixth Constitutional Convention, Record of Proceedings, Committee
Proposals-Member Proposals, Committee on Revenue and Finance Proposal 2 (Spring-
field, 1972), VII:2066.

' Illinois, Department of Revenue, Twenty-eighth-twenty-ninth Annual Report
(1972), table 1, p. 21.

sesses the greatest potential for additional fiscal resources. Merely doubling
the existing rates by imposing a 5 percent tax upon individuals and an 8
percent tax upon corporations would piovide additional revenues of approxi-
mately $1,136 billion using fiscal 1972 collections as the measure. Compared
with the highly regressive sales and use taxes, the rates of the state income
tax are relatively low. Furthermore, the burden of increased state income
taxes would be offset in part by the deduction allowed to taxpayers under
the federal income tax. An increase in the state income tax would divert
to the state treasury amounts which would otherwise be paid to the federal
government. In the case of a corporation with taxable income in excess of
$25,000, the net effective rate of an 8 percent state income tax would be
approximately 4.16 percent. With respect to individuals, the higher their
federal income tax bracket, the less the burden of the Illinois income tax.
Thus, the burden of a 5 percent state income tax upon individuals in the top
70 percent federal tax bracket would be 1.5 percent. Individuals in the lower
income tax bracket would, of course, bear a greater proportionate burden.
For example, an individual in the 30 percent federal bracket would bear a
burden of 3.5 percent under a 5 percent state income tax.^

With the advent of the income tax, there has been a dramatic increase
in state aid for the public school system^ and an initiation of state aid to
municipalities and counties.^" State aid to municipalities and counties was
designed to alleviate the loss of revenue due to the abolition of the personal
property tax upon individuals. In view of the needs of local government,
there are compelling reasons to expand state aid to local governmental bodies
over and above the amounts required to replace revenues lost or to be lost
by abolition of personal property taxes. It is submitted that the state income
tax is the ideal source of the additional funds to achieve this objective.

ABOLITION OF THE PERSONAL PROPERTY TAX

By its recent decision in Lehnhausen v. Lake Shore Auto Parts Co.,^'^ the
United States Supreme Court has sustained the validity of the constitutional
amendment which abolished the personal property tax as to individuals.
Abolition of the personal property tax upon individuals was initiated by an

' In view of the actual burden of the Illinois income tax, one may well question
the propriety of the constitutional prohibition upon graduated rates.

"State aid to the public schools increased from $516.6 million in the school year
1969 to $1,028.7 million in the school year 1972 {A New Design: Financing for Ef-
fective Education in Illinois, Final Report of the Finance Task Force, Governor's Com-
mission on Schools (1972)), table 4, p. 31.

'"111. Rev. Stat., ch. 120, sec. 9-901 (b) (1971). Under this provision one-twelfth
of the net revenue from the income tax is placed in the "Local Governmental Distribu-
tive Fund" for allocation to municipalities and counties.

"410 U.S. 356 (1973), rev'g 48 111. 2d 323, 269 N.E.2d 465 (1971).

amendment of the constitution of 1870 and was approved by the voters in
November 1970, a few weeks prior to the adoption of the constitution of
1970. This action with respect to the old constitution was effectively incorpo-
rated in the new constitution. Article IX, section 5(b), provides that "any
ad valorem personal property tax abolished on or before the effective date
of this Constitution shall not be reinstated."

There are no data available as to the amount of revenue derived from
the personal property tax upon individuals. Assuming, however, as a rough
estimate that the amount of this revenue has been 50 percent of all personal
property taxes, the present or potential loss from the abolition of such tax
would be approximately $250 million. ^^ It should be noted, however, that
there may be no actual loss of revenue by a local governmental unit to the ex-
tent that the property tax levy can be applied to property which remains upon
the tax rolls. In that case, the burden of the taxes upon individual personal
property is merely shifted to real property and corporate personal property.
It should also be noted that a part of the loss may be effectively recouped
by municipalities and counties through allocations from the Local Govern-
mental Distributive Fund.^^

With respect to personal property, both tangible and intangible, only that
owned by corporations remains a part of the Illinois property tax base.^*
Furthermore, section 5(c) of article IX requires that the General Assembly
abolish the personal property tax upon corporations on or before January 1,
1979. Concurrently with the abolition of the personal property tax upon
corporations, the General Assembly is required to replace all revenue lost
by units of local government and school districts as a consequence of such
abolition. Replacement of these lost revenues must be funded by statewide
taxes solely upon corporations.^^ To facilitate such replacement section 5(c)

" In round figures, total personal property tax extensions In Illinois for the year
1969 were $514 million; for the year 1970, they were $477 million (Illinois, Depart-
ment of Local Government Affairs, Office of Financial AfTairs, Illinois Property Tax
Statistics 1969, table IV, p. 6; ibid., 1970, table IV, p. 7).

*' See note 10 above and related text.

" This statement is an overgeneralization and must be qualified in view of de-
velopments subsequent to the preparation of this paper. Upon remand of Lake Shore
Auto Parts Co., the Illinois Supreme Court held that personal property of partner-
ships, professional associations, trustees, and other fiduciaries remains subject to taxa-
tion. The court concluded that the exemption as to individuals applies only with
respect to direct beneficial ownership by natural persons. 54 111. 2d 237, 296 N.E.2d
342 (1973).

''Section 5(c) requires the General Assembly to replace all rev^enue lost by units
of local goverrmient and school districts by imposing statewide taxes solely upon
"those classes relieved of the burden of paying ad valorem personal property taxes
because of the abolition of such taxes subsequent to January 2, 1971." Emphasis added.
In view of the supplemental decision on remand in Lake Shore Auto Parts Co. (see
note 14 above), it would also be necessary to obtain replacement revenues from part-
nerships, professional associations, trusts, and other fiduciaries.

lifts the restrictions upon income taxes imposed by section 3(a) which other-
wise limit the state to one income tax and to a rate differential as between
corporations and individuals not to exceed the ratio of 8 to 5. In view of
these provisions it is obvious that delegates to the constitutional convention
had in mind the use of the state income tax as a replacement for the personal
property tax.

If it is accurate to conclude that personal property tax revenues have
been derived one-half from individuals and one-half from corporations, it
would be necessary on the basis of the most recent data to impose a statewide
tax upon corporations which would produce approximately $250 million
annually.^'' And if the General Assembly were to determine as a matter of
policy that all personal property taxes should be replaced by the state, the
annual allocation to local governmental bodies for this purpose would total
$500 million.

POSSIBLE REDEFINITION OF PERSONAL PROPERTY AS REAL PROPERTY

Although the personal property tax is to be completely abolished on or
before January 1, 1979, a nice question arises as to the existing statutory desig-
nations of property as either real or personal for property tax purposes. This
issue is of special significance in relation to the future abolition of the per-
sonal property tax upon corporations. Specifically, the question is whether
there are certain items of property which are currently defined as personal
property under the Illinois property tax provisions which more appropriately
should be defined as real property.

First it should be noted that there is no specific limitation in the new
constitution upon legislative authority to define real property and personal
property for purposes of the general property tax. Under universal property
tax systems it is well established that the legislature has broad power to define
what shall be assessed as real property and what shall be assessed as personal
property.^'^ This rule has long been recognized in Illinois. ^^ Section 1 of the
new article IX states that "the General Assembly has the exclusive power to

'* See note 12 above.

"E.g., Portland Terminal Co. v. Hinds, 141 Me. 68, 77, 39 A.2d 5, 9 (1944):
"It is within legislative authority, for the purposes of taxation to provide that real
estate shall be assessed as personalty or that personalty shall be taxed as realty."

''See Johnson v. Roberts, 102 111. 655, 659-60 (1882), wherein the court stated:
"It is conceded that the legislature is invested with and may exercise all governmental
power, unless restricted by the State constitution, or the power has been delegated
to the general government, or the Federal constitution has prohibited its exercise. No
reason is perceived why the General Assembly, if so disposed, may not declare every
species of property personal, and subject it to all the incidents of personalty; or why
it may not, for the purposes of taxation, require any portion of real estate, or any of
its parts or accessories, to be listed, taxed, and sold for the payment of taxes thereon,
as personal property. . . ." This decision was followed in Shelbyville Water Co. v.
People, 140 III. 545, 30 N.E. 678 (1892).

raise revenue by law except as limited or otherwise provided in this Consti-
tution."^^ Sections 4 and 5, relating to property taxes, specify no limitations
or restrictions with respect to the power of the General Assembly to define
real and personal property. One might speculate therefore as to whether the
General Assembly could redefine real property to include certain items pre-
viously assessed as personal property. For example, would it be within the
legislative power to define real property to include mobile homes which are
used as permanent residential property, or to include pipelines and utility
distribution svstems? This issue would turn on whether it is reasonable to
categorize such items as real property.

No apparent basis exists for applying the rule of contemporaneous con-
struction to bar such legislative action. In \iew of the long-existing legislative
authority to define real and personal property, one might reasonably have
anticipated extensive discussions of this question in the Committee on Reve-
nue and Finance and on the floor of the convention. The formal record is
sparse, but the author has been informed that there was considerable discus-
sion of this issue in the committee. In any case, the committee concluded that
the definition of real and personal property should be left to legislative deter-
mination.^° Furthermore, since the convention adopted article IX with the
clear intention that the General Assembly shall have plenary power to tax
except as otherwise specifically provided therein, there is good reason to
conclude that the General Assembly holds the power to redefine real and
personal property in a reasonable manner.-^

" Emphasis added.

■° This conclusion is reflected in the report of the committee in the following state-
ment upon its proposed section 4.2, which evolved into section 5 of article IX relating
to personal property taxes: "No distinction between real and personal property is made
in this section" (111., Sixth Const. Conv., Record of Proceedings, Revenue and Finance
Committee Proposal 2, VII :2 129).

There is also a revealing statement in the convention proceedings which is helpful
on the point that authority is vested in the legislature to define certain property as real
property. During the August 10, 1970, session, delegate Louis F. Bottino directed to
delegate John M. Kams, Jr., chairman of the Revenue and Finance Committee, a
question as to whether mobile homes were to be treated as personal property or as
real property. Delegate Karns responded by noting the alternative methods of taxing
mobile homes and concluded with the observation that this property could be taxed as
real property if the legislature were to define mobile homes as such (111., Sixth Const.
Conv., Record of Proceedings, Verbatim Transcripts, V:3918).

" New York provides an excellent example of a comprehensive definition of real
property. The New York constitution prohibits ad valorem taxation of intangible
personal property (New York Constitution, art. XVI, sec. 3). Moreover, as a matter of
policy, the legislature has determined that tangible personal property shall also be
exempt from ad valorem property taxes (N.Y. Real Prop. Tax Law, sec. 300
(McKinney I960)). But the exemption of tangible and intangible personal property is
complemented by a comprehensive definition of real property which includes utility
distribution systems and mobile homes (N.Y. Real Prop. Tax Law, sec. 102(12) (d)
and (g) (McKinney I960)). Inclusion of each of these items within the definition of

To the extent that property previously assessed as personal property were
shifted into the category' of real property, there would be no loss of revenue
at the local level upon the abolition of the personal property tax. To achieve
equitable treatment of similar properties, to alleviate the erosion of the
property tax base, and to reduce the burden placed upon the state to replace
revenues lost b)- abolition of the personal property tax, the General Assembly
should give serious consideration to the enactment of a realistic and compre-
hensive definition of real property.

CLASSIFICATION OF REAL PROPERTY

By authorizing classification of personal property and by providing for
the eventual abolition of all personal property taxes, the new constitution
abandoned the rule of universal uniformity imposed under the constitution
of 1870. As to real estate, however, section 4(a) of article IX provides that
"taxes upon real property shall be levied uniformly by valuation ascertained
as the General Assembly shall provide by law." It should be noted that this
requirement is binding only with respect to the smaller counties with popu-
lations under 200,000. Counties with populations in excess of 200,000-^ are
permitted by section 4(b) to classify or to continue to classify real property
subject only to such limitations as might be prescribed by the General Assem-
bly. In addition, section 4(b) imposes three conditions with respect to such
classification : ( 1 ) the classification must be reasonable and the assessments
uniform within each class; (2) the assessment ratio or rate of tax as between
the highest and the lowest classification shall not exceed two and one-half
to one; and (3) land used in farming shall not be assessed at a higher level
than single-family residential property.

These provisions, ^\•hich permit classification of real property in the larger
counties but not in the smaller counties, create a problem -with respect to
taxing districts which overlap counties. If a taxing district lies partly in a
county which classifies real property and partly in a county which does not,
there is a problem as to fair allocation of tax burden between the respective
portions of the taxing district. A similar problem arises if an overlapping
taxing district embraces counties which classify real property in a different
manner. Section 7 of article IX authorizes the General Assembly to provide

real property has been sustained as a valid classification (People ex rel. Holmes Elec.
Protective Co. v. Chambers, 1 N.Y.2d 760, 135 N.E.2d 56, 152 N.Y.S.2d 304 (1956),
aff'g 285 App. Div. 886, 139 N.Y.S.2d 245 (1955) ; New York Mobile Homes Ass'n v.
Steckel, 9 N.Y.2d 533, 175 N.E.2d 151, 215 N.Y.S.2d 487, motion to amend remittitur
granted, 10 N.Y.2d 814, 178 N.E.2d 231, 221 N.Y.S.2d 515 (1961), appeal dismissed,
369 U.S. 150 (1962)).

" According to the 1970 U.S. Census, eight Illinois counties have populations in
excess of 200,000: Cook, DuPage, Kane, Lake, Madison, St. Clair, Will, and
Winnebago.

by law for fair apportionment of the tax burden in these circumstances. The
best solution for this problem would be an initial allocation of the total tax
levy between the respective portions of the taxing district on the basis of the
full equalized value of property located in each county. ^^ Subsequent alloca-
tions to the taxpayers in the taxing district within each county Nvould then
be made in accordance with the scheme of classification applicable in each
county. In this manner the total tax burden would be fairly apportioned and
each county would retain control of its scheme of classification.

Classification of real property may not be a critical issue for home rule
units. It does have a bearing, however, upon the fairness of allocation of
state aid if one were to consider local "property tax effort." To illustrate this
point, assume that there are two governmental imits of the same type with
the same equalized property tax base. One is located in a county which
classifies real property with the result that the aggregate actual assessment of
real property is 80 percent of equalized value. The other is located in a small
county Avhich cannot classify and the actual assessment of real property is
100 percent of equalized value. If the tax levy by each unit were in the same
amount, the "tax effort" of the unit located in the larger county would only
be four-fifths that of the unit located in the smaller count\-. Consequently,
"tax effort" should be measured with reference to the efTective tax rates
computed upon full equalized value. A comparison of efTective tax rates may
be a significant factor in evaluating the allocation of state aid.

REVENUE MEASURES AVAILABLE TO HOME RULE UNITS

By article VII, section 6(a), of the 1970 constitution, home rule units are
granted what appears at first blush to be an autonomous po^ver to tax. This
grant is circumscribed, however, by section 6(e), which specifies that a home
rule unit shall have only the power that the General Assembly may provide
by law "to license for revenue" or to "impose taxes upon or measured by
income or earnings" or to impose taxes "upon occupations." In the absence
of specific legislative authority it is clear that the restrictive language of
section 6(e) bars the imposition of local income, earnings, and occupation
taxes. Thus, what appears at first to be a complete departure from the tradi-
tional requirement that revenue powers be specifically delegated by the legis-
lature to local governmental bodies proves to be only a limited departure.

Nevertheless, article VII does confer significant autonomous taxing au-
thority upon home rule units, at least with respect to consumer taxes and
other excise taxes not within the proscribed classes. This was the intention

" A bill to deal with this problem in the manner described in the text was con-
sidered at the last session of the General Assembly (S.B. 1472, Seventy-seventh General
Assembly). A similar bill was passed in the current legislative session (S.B. 357,
Seventy-eighth General Assembly) but was vetoed by the governor.

of the convention as indicated by the report of the Committee on Local
Government,^* and this intention has been recognized in the recent decisions
sustaining the Chicago cigarette'^ and parking^^ taxes. In both these cases,
the Illinois Supreme Court emphasized the point that although the duty to
collect and remit the taxes was placed upon the vendor of the goods or ser-
vices the legal incidence of the tax was directly imposed upon the consumer.

In appraising the taxing powers granted to home rule units under the
constitution of 1970, the chief question is whether the door has been opened
to the imposition of commonly recognized broad-based taxes such as taxes
upon sales, use, net income, gross income, business activities, payrolls, and
earnings. At the risk of overgeneralization, it appears that any excise or
privilege tax which is imposed upon the consumer or user of goods or ser-
vices is within the scope of the home rule power to tax.

Although general "consumer" sales or use taxes may be available under
the home rule taxing power, practical and political considerations discourage
utilization of such taxes in the face of the existing state and local occupation-
use tax structure. Among the broad-based taxes, perhaps the payroll tax has
generated the most interest and discussion. But this tax, if it were to be
utilized, could not be imposed upon wage earners without violating the pro-
hibition upon taxes measured by income or earnings.^^ It has been suggested
that a payroll tax imposed directly upon the employer might fall within the
permissible range.^^ But a circumspect examination of this proposal leads
one to conclude that there is considerable doubt that such a tax would be
sustained. The report of the Local Government Committee is emphatic in
making the point that the provision which comprises section 6(e) of article
VII was intended to prohibit a payroll tax as a tax on earnings.^^ Although
the courts are admonished by section 6(m) of article VII to construe the
powers of home rule units "liberally," it is likely that considerable weight

" 111., Sixth Const. Conv., Record of Proceedings, Local Government Committee
Proposal 1, VII: 1655-56. Article VII, section 6(a), also lifts the statutory property tax
limitations upon home rule units (ibid., VII: 1656-67 (example 20)). Any realistic
appraisal, however, leads to the conclusion that, in view of the general public concern
with respect to property tax burdens, this freedom to impose additional property taxes
without limitation does not enhance the revenue powers of home rule units. For
clarity with respect to the extent of such power, it also should be noted that article
VII, section 6(g), reserves to the General Assembly authority to limit this power
by three-fifths vote of the members of each house.

'' Bloom v. Korshak, 52 111. 2d 56, 284 N.E.2d 257 (1972).

=" Jacobs V. City of Chicago, 53 111. 2d 421, 292 N.E.2d 401 (1973).

-'Chicago Home Rule Commission, Report and Recommendations (Chicago:
University of Illinois at Chicago Circle, 1972), pp. 450-52.

'^Ibid.; and David C. Baum, "A Tentative Survey of Illinois Home Rule (Part
I) : Powers and Limitations," University of Illinois Law Forum (1972), p. 145.

^ 111., Sixth Const. Conv., Record of Proceedings, Local Government Committee
Proposal 1, VII: 167 1-73.

would be placed upon the committee report in evaluating a tax designed to
circumvent a specific constitutional proscription.

Assuming, however, that a payroll tax could be framed in a manner Avhich
would a\oid the prohibition with respect to a tax upon income or earnings,
the proscription with respect to occupation taxes remains a major hurdle.
The decision in Steward Machine Company v. Davis,^° which sustained the
unemployTnent tax under the Social Security Act as a valid federal excise
tax, sheds some light on this matter. In that case, the tax was laid "as an
excise upon the relation of employment." In contesting the tax, the taxpayer-
employer contended that the relation of employTnent is so essential to the
pursuit of happiness that it was beyond the power of Congress to tax. In
answer, the Court stated in part as follows :

Employment is a business relation, if not itself a business. It is a relation without
which business could seldom be carried on effectively. The power to tax the activi-
ties and relations that constitute a calling considered as a unit is the power to tax
any of them. The whole includes the parts.''

In this statement, the Court was making the point that since there is no con-
stitutional problem with respect to the imposition of a federal excise tax upon
the privilege of engaging in a business, a fortiori there is no question as to the
validity of a tax imposed upon one of the essential elements of a business,
namely, employment. It is submitted that inasmuch as emplo}Tnent is an
integral and essential part of the conduct of a business, a payroll tax imposed
directly upon the employer could reasonably be considered in substance a
tax upon the privilege of engaging in a business. If this were the case, a
payroll tax would fall within the proscription upon occupation taxes. It
would appear that a similar objection could be made with respect to a
value-added tax. Likewise, a general business tax irrespective of the measure
of the tax would probably be deemed an unauthorized general occupation
tax. Finally, a tax upon or measured by gross receipts would be \ailnerable
in view of the prohibition upon an earnings tax.

SUMMARY

With the exception of the specific prohibition upon a graduated income
tax, the constitution of 1970 has enlarged the general revenue powers of the
state and of local governments and has extended to home rule units certain
autonomy with respect to the taxing power which did not previously exist.
At this juncture a realistic appraisal of the effect of these changes leads to
two observations. W'ith the authority to impose excise taxes upon the con-
sumption of goods and ser\-ices, home rule units are in a position to utilize

'"301 U.S. 548 (1937).
'^301 U.S. at 581.

selected consumer taxes which can be helpful in alleviating fiscal needs. How-
ever, it appears that any major and substantial fiscal relief must come from
state revenue sharing, for which the state income tax is the obvious and most
likely source. Such revenue is needed over and above that required to replace
the revenues which have been or will be lost by abolition of the personal
property tax.

There are three matters relating to the property tax which warrant con-
cern. One is the need for a more realistic statutory definition of real property
to protect the property tax base as we proceed with the abolition of the
personal property tax. This would also reduce the demands upon the state
fiscal system for replacement of revenue lost by local government. Another
matter involves legislation to effect a fair allocation of the property tax bur-
den among the taxpayers residing within taxing districts which overlap differ-
ent counties where the counties adhere to different classification schemes in
the assessment of real property. Finally, consideration should be given to local
"tax effort" and financial need in determining the amount of state revenue
sharing.

IMPROVED LAND USE REGULATION FOR THE HOME RULE MUNICIPALITY

CLYDE W. FORREST

"The king is dead — Long live the king"

This ancient declaration of allegiance to continuity of nile is analogous
to the current legal situation in Illinois with respect to Dillon's Rule. The old
Dillon's Rule is dead, but the new rule is alive and well. Indeed, a case can
be made that it can now be applied to reverse the severe legislative and judi-
cial limitations on land use regulation by home rule municipalities. Appli-
cable provisions of the rule are as follows :

A municipal corporation possesses and can exercise the following powers, and no
others: First, those granted in express words; second, those necessarily or fairly
implied in or incident to the powers expressly granted; third, those essential to the
accomplishment of the declared objects and purposes of the corporation . . . not
simply convenient, but indispensable. Any fair, reasonable, substantial doubt con-
cerning the existence of power is resolved by the courts against the corporation, and
the power is denied.^

Dillon's discussion of the topic makes it clear that legislative intent is to
be determined. If the legislature clearly intended to confer a power, the
courts should hold it to exist ; otherwise, they should not.

This rule of strict construction applied to the requirement of the new
Illinois Constitution that "powers and functions of home rule units shall be
construed liberally"^ should result in judicial support for a broad interpreta-
tion of home rule authority. While home rule will not provide authority to
deal with all the shortcomings of existing land use law, it can have major
impact on the following undesirable conditions :

1. Existing scope of authority of land use law is limited to short range,
economic, nonconservation-oriented interests.

2. Diverse land use regulations in such areas as zoning and subdivision are
inadequately coordinated and result in complicated and obscure procedures.

3. Citizen participation is not facilitated and when it takes place is often
unnecessarily obstructive.

^ John F. Dillon, A Treatise on the Lazv of Municipal Corporations, 5th ed.
(Boston: Little, Brown, 1911), vol. 1, sec. 237. Emphasis omitted.
'Art. VII, sec. 6(m).

101

4. Zoning ordinance procedures are often internally inconsistent, complex,
and fraught ^vith opportunit)' for poor administration.

This paper is intended to outline legal arguments to support innovative
solutions to these problems, and to offer suggestions for consideration by
home rule units to improve the administration of land use controls.

POLICE POWER AND CONSTITUTIONAL HOME RULE

The police power is exercised under many titles: subdivision regulation,
pollution control, historic preser\ation, and, of course, the familiar term zon-
ing. The basic position of this writer is that permissive enabling acts are no
longer binding on home rule units in Illinois.

Authority is now granted to home rule units by the Illinois Constitution
of 1970, article VII, section 6(a) :

Except as limited by this Section, a home rule unit may exercise any power and
perform any function pertaining to its government and affairs including, but not
limited to, the power to regulate for the protection of the public health, safety,
morals and welfare; to license; to tax; and to incur debt.

PRE-HOME RULE STATUS

The conventional wisdom concerning the zoning authority of a local
governing body presents a serious problem. The general rule is that "as zoning
regulations were unkno^vn at common law, the intent to vest such power
cannot be presumed from a grant of police power in general terms." ^

As late as 1971, Illinois courts were stating that cities have no inherent
zoning power.* Land use regulations are within the police power and, there-
fore, are subject to state control. State control may, however, be exercised
through constitutional authority, legislative enactment, or judicial inter-
pretation.

The question of whether a zoning enabling act takes precedence over a
general grant of constitutional police power authority to home rule units has
yet to be answered judicially. It would seem that ^\•hen the legislatixe act is
merely permissive or enabling and not mandator}- in nature, there should be
no difficulty in recogiiizing the primacy of a constitutional grant of authority
to home rule units.

An early Ohio case illustrated the advantages of home rule in zoning b\-
holding that where a general enabling act and a specific constitutional grant
of police power to home rule units exist, ''the municipality is doubly em-
powered to enact [the zoning ordinance].'

'Robert M. Anderson, American Law of Zoning (Rochester, N.Y. : Lawyer's
Co-op Publishing, 1968), sec. 3.10.

*Beam v. Erven, 133 111. App. 2d 193, 272 N.E.2d 685 (1st Dist., 1971).
''Pritz V. Messer, 112 Ohio 628, 149 N.E. 30 (1925).

102

In discussing the distinction between what is regarded as a matter of
local government and what is subject to control by the state, McQuillin makes
the following remarks concerning zoning :

Zoning has been said to be a matter of strictly municipal or local concern. However,
the municipal power to zone ordinarily rests upon statute and is within the legisla-
tive control as a state affair within the limits of the state constitution."

Since the constitutional grant of police power to home rule units in Illinois
was intended to limit the General Assembly's authority over home rule units
and to bestow power of local self-government except as limited by the consti-
tution, the home rule grant of police power should be construed to include
land use controls.

CONSTITUTIONAL INTENT

The extent of the authority granted by article VII, section 6, should be
determined by the intent of the delegates to the Sixth Illinois Constitutional
Convention. While determination of constitutional intent is not always bound
by the same rules as common law instruments or statutes," the same rules have
often been applied in Illinois. For example, "the debates of the constitutional
convention, held in 1869 and 1870, aid in determining the intent of the
drafters of the instrument. . . . The true inquiry concerns the understanding
of the meaning of its provisions by the voters who adopted it. . . . Still the
practice of consulting the debates of the members of the convention . . . has
long been indulged in by the courts in determining the meaning of provisions
which are thought to be doubtful."^ "The primary object of construction of
the constitution or of a statute is to ascertain and give effect to the intent
of the framers."^

The Record of Proceedings of the Sixth Illinois Constitutional Convention
indicates that delegates intended to grant sweeping police power authority to
home rule units. The intent of the Local Government Committee was ex-
pressed as follows in its report: "This broad grant of powers is subject to
restrictions on income tax, local debt, and licensing for revenue. . . ."^° It is
significant that the constitution contains no limitations on the police power
other than those which might be later proposed by the General Assembly.

* Eugene McQuillin, Municipal Corporations, 3d ed. rev. (Chicago: Callaghan
and Co., 1966), vol. 2, sec. 4.112A. Emphasis added. See also Houston v. State, 142
Tex. 190, 176S.W.2d928.

'In re Trapani's Estate, 21 111. App. 2d 19, 157 N.E.2d 83 (1958).

* People ex rel. Keenan v. McGuane, 13 111. 2d 520, 527, 150 N.E.2d 168, 172
(1958). Emphasis added.

" 13 111. 2d at 532, 150 N.E.2d at 175.

" Illinois, Sixth Constitutional Convention, Record of Proceedings, Committee
Proposals-Member Proposals, Committee on Local Government Proposal 1 (Spring-
field: 1972), VII:1601.

103

Intent is further elaborated in the Local Government Committee report in
the following statement: "The intent of this draft ... is to give broad po\vers
to deal with local problems to local authorities. . . ."^^ The committee may
have raised a question, however, concerning the authority of home rule units
over land use control : "powers of home rule units relate to their o^vn prob-
lems. . . . Their powers should not extend to such matters as divorce, real
property law, trusts, contracts, etc, \vhich are generally recognized as falling
within the competence of state rather than local authorities."^^ Specifically
referring to the police power grant, the committee stated, "no objections ha\e
been raised to vesting this basic 'police power' in the home-rule municipalities
and countics."^^ The committee report further indicates that this grant of
police power is similar to the Ohio grant referred to above.

The only modifying clause in the grant of home rule power is the limita-
tion upon the exercise of power "pertaining to its [a home rule unit's] govern-
ment and affairs." It can be logically reasoned that, since zoning was clearly
known to be a matter of municipal concern and known to be a method of
limiting property interest, delegates to the Illinois constitutional convention
were fully cognizant of the impact of a general police power grant and in-
tended to include land use control within its purview. Whether or not land
use controls pertain to the government and affairs of municipalities exclu-
sively is one of the major issues still to be settled by the courts in interpreting
home rule in Illinois. It would appear from the evidence of broad intent and
the lack of statutor)^ mandate that the decisions should be affirmative.

LIMITATION BY STATE ACT

There is no question that the General Assembly "may deny or limit . . . any
other power or function of a home rule unit. . . ."^* by a three-fifths vote. An
important question remains as to whether the General Assembly could, by
simple majority, enact a mandatory uniform land use control act pursuant
to subsection 6(h) of article VII: "The General Assembly may provide spe-
cifically by law for the exclusive exercise by the State of any power or function
of a home rule unit. . . ." The very nature of land use controls, particularly
the controversy surrounding exclusionary aspects and problems of standing,
seems to require state exercise of authority.

Illinois has not reached an impasse on these issues since the authority of
the state of Illinois to exercise its police power has been resened in article
II, section 2 : "The enumeration in this Constitution of specified powers and
functions shall not be construed as a limitation of powers of state govern-

"Ibid., VII:1622.

"Ibid., VII:1621. Emphasis added.

"Ibid., VII: 1623.

"Art. VII, sec. 6(g).

104

ment." Convention records indicate the intent of the delegates, in the words
of delegate Louis J. Perona: "We do not intend that . . . the deletion of . . .
powers means that the state government does not have them."^^ In short, the
state has the police power and may exercise it for any legitimate purpose
^v•hich is found to be of paramount importance to the people of the state as
a whole.

IMPROVED PROCESS

It is the relationship between planning and zoning which may be able to
provide the quality, specificity, and flexibility of guidance needed to improve
the process of land use regulation. Through the control of location by type
and density of land uses, a critical element of stability may be introduced into
the planned provision of public facilities and services in the most effective
and efficient manner. Without planning, zoning becomes an ad hoc and
often unjustifiable infringement on private property rights. In most litigated
zoning cases the key nonprocedural issue is deceptively simple: whether
the zoning restrictions are reasonable or, stated another way, what the public
interest is in restricting a particular piece of land in the manner prescribed.
Comprehensive planning establishes the factual basis for determining the
reasonableness of the particular zoning decision by publicly setting forth the
objectives and the criteria on which decisions are based. Objectives which
consider the interrelationships among economic, social, and physical factors
are the context within which zoning decisions may be strengthened. The legal
efficacy of a regvilatory means of controlling public services \vas recently
illustrated in the case of Golden v. Planning Board of Town of Ramapo}^
This case established the relationship between planning and zoning in New
York and relied in part on home rule authority.

OBJECTIVES FOR HOME RULE ZONING PROCEDURES

Zoning and land use regulation can play vital roles in preserving what is
good and in facilitating changes required for the public welfare. Establish-
ment of sound regulations by home rule units might help to achieve the
following objectives:

1. The use of zoning as an environmental and social as well as an economic
planning tool.

2. The separation of the policy formulation function of city government from
the administrative function, particularly as related to zoning.

3. The reduction of the time required to reach a final administrative decision.

" 111., Sixth Const. Conv., Record of Proceedings, Verbatim Transcripts, V:3944.
'" 30 N.Y.2d 359, 285 N.E.2d 291, 334 N.Y.S.2d 138 (1972).

ids

4. The conduct of zoning in full view of the public and affected property
owners.

5. The professionalization of personnel involved in zoning administration.

6. The clarification and standardization of the procedures and organizations
involved in zoning administration.

7. The establishment of a monitoring and evaluation procedure.

8. The improvement of the status of municipal decisions which are subjected
to judicial review.

The most critical decision which local elected officials must make in imple-
menting these objectives is to separate policy formulation from administra-
tion. Illinois law on the delegation of authority has been favorable in zoning
cases. In Heft v. Zoning Board of Appeals of Peoria County,^' the delegation
of authority to var)^ or modify ordinances where practical difficulties or
particular hardship in carrying out the strict letter of the law was upheld
as being a sufficient guide, particularly since a public hearing and finding
of facts was required. In over 40 percent of Illinois municipalities final au-
thority on zoning variations is already granted to the Zoning Board of Appeals,
and thus not even a violation of tradition is involved. ^^

CONCLUSION

From the point of view of a land use planner, the problems and potential
of home rule governance are fraught with ambiguity. On the one hand, pre-
occupation with issues of internal reform will make home rule units in metro-
politan areas especially vulnerable to externally-created problems of growth.
On the other hand, municipalities are now provided with the necessary scope
and flexibility to deal with some land use issues more effectively.

The first priority for home rule units dealing with problems of growth
should be the development of internal organizational and procedural im-
provements to strengthen local decision-making processes. Land use regula-
tion, a function capable of immediate responsiveness, is often the critical test
of local decision making. Whether the many questions which remain are
resolved in favor of local self-government depends not only upon the courts
but more fundamentally upon how reasonably municipalities proceed with
the exercise of their new legal maturity.

" 31 111. 2d 266, 201 N.E.2d 364 (1964).

" Illinois Zoning Laws Study Commission, Zoning Problems: Supplementary
Statistical Report for the Illinois Zoning Laws Study Commission. Prepared by Clyde
W. Forrest. David C. Lager, and Katharine A. Messinger, Bureau of Urban and
Regional Planning Research, University of Illinois at Urbana-Champaign (1971),
p. 44.

106

THE CHICAGO HOME RULE COMMISSION:
REPORT AND RECOMMENDATIONS

ALLEN HARTMAN

Culminating the work of one year, on December 4, 1972, the Chicago
Home Rule Commission submitted its Report and Recommendations (also
referred to as Report in this paper) to the mayor and city council. The
Report, consisting of nine chapters containing 624 pages, is the commission's
response to its mandate to investigate and study ways and means of imple-
menting home rule powers delegated to the city of Chicago under the 1970
Illinois Constitution.^ The work of this reestablished commission is perhaps
best understood when viewed from the perspective of its recent antecedents.

One of the early milestones in efforts to establish a greater degree of
self-government for the city of Chicago was the creation in 1952 of the Com-
mission on City Expenditures, the "little Hoover committee." One of the
recommendations of that commission was that the mayor and city council
appoint a committee to determine the best method of obtaining a modern
city charter and to draft such a charter.

In 1953 the Survey Committee for Home Rule and Charter Recommenda-
tions was appointed by the mayor. This temporary committee was charged
with the responsibility of devising the most effective ways and means of
securing a city charter and establishing the greatest possible measure of
home rule. The committee recommended that a permanent Chicago Home

^ City of Chicago, Journal of Council Proceedings, July 28, 1971, pp. 943-44. The
text of the ordinance follows. Brackets enclose the words and terms which were re-
moved from the original ordinance, and italicized words denote language added to the
original ordinance, for convenience in analyzing the differences in scope and content of
the assignments presented to the 1953-54 and the 1972 home rule commissions.
21-54. A commission to be known as the Chicago Home Rule Commission, consisting
of [fifteen] sixteen members to be appointed by the Mayor with the consent of the
City Council, not more than four of whom shall be members of the City Council or
city administration, is hereby created. Said Commission shall give consideration to
possible changes in form and structure that may be necessary or desirable by reason of
the adoption of the 1970 Illinois Constitution for the advancement and modernization
of Chicago's government and investigate and make a thorough study of all possible
ways and means of [securing] implementing the best measure of home rule for the
government of Chicago and to submit its report thereon to the [City Council not later
than September 30, 1954 so that the best conceived and soundest proposals relating
thereto may be submitted to the Illinois General Assembly not later than at its 1955
regular session] Mayor for submission to the City Council.

107

Rule Commission be created to study which necessary and desirable home
rule powers should be secured for the city, including possible changes in the
form and structure of Chicago's government.

The Chicago Home Rule Commission ^\•as created on June 11, 1953;
fifteen members were appointed and began work late that year. In outlining
their conception of their assignment, commission members agreed that the
body was not a charter commission, since it had no authorization to prepare
legislation for that purpose; that it would recommend only those changes in
city government possible within the existing mayor-city council pattern; that
it would not consider the possibility of either overall metropolitan government
or of integration of some of the local governmental units; that management
studies were not appropriate to its assignment; that problems relating to the
modernization and restructuring of the city's government and problems re-
lating to home rule powers would be given equal attention; and that the
commission would attempt to cast its recommendations in such form as
might be implemented by the General Assembly and the city council without
the need for any constitutional amendment.^

The \vork of the 1953-54 Chicago Home Rule Commission met with both
success and failure. For example, the state legislature adopted an executive
budget authorization, but did not provide for restructuring the city council.

The interest in home rule, although never entirely abated, \vas dramati-
cally rekindled by the Sixth Illinois Constitutional Convention. Article VII,
section 6, of the 1970 constitution contains the broadest language granting
home rule status to municipalities to be found in any state constitution.
Almost all the provisions of the 1970 Illinois Constitution became effective
July 1, 1971. In that month, upon the recommendation of Mayor Richard J.
Daley, the city council reactivated the doiTnant home rule commission, which
had last reported in 1954. New members were appointed and approved and
a staff was hired. ^

^ Chicago's Government: Its Structural Modernization and Home Rule Problems
(Chicago: University of Chicago Press, 1954), pp. 6-7.

* The membership of the commission remained constant throughout its existence
and was as follows:

Patrick L. O'Malley, Chairman Alderman Thomas E. Keane

Dr. Norman A. Parker, Vice-Chairman Honorable Philip M. Klutznick

Alderman Michael A. Bilandic William A. Lee

Charles F. Conlon Senator Cecil A. Partee

Thomas H. Coulter Mrs. Carey B. Preston

Joseph Gordon Sebastian Rivera

John D. Gray Raymond Schoessling

Alderman Claude W. B. Holman Alderman Jack I. Sperling

The members of the Chicago Home Rule Commission staff included the author of this
paper as executive director; Madison L. Brown H, Thomas J. Davies, and Lee J.
Schwartz as principal research associates; and Estella G. Krantz and Judith L.
Landesman as executive secretaries.

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The commission foiind that in light of the broad language contained in
section 6(a) of article VII any attempt to create a charter for the city of
Chicago would result in a dilution of home rule powers delegated to the city
under the 1970 constitution. Furthermore, since home rule powers bestowed
upon eligible municipalities by the 1970 constitution are largely self-execut-
ing, the creation of a charter would be redundant. People, circumstances,
standards, and institutions are so subject to change in our modern, fast-
moving society that such a charter would rapidly become obsolete.

In further analyzing its mandate and outlining its work program, the
commission decided that questions relating to restructuring of government
at the executive and legislative levels should be determined by the policy
makers, rather than through an exhaustive institution-by-institution, agency-
by-agency, department-by-department study for which the commission was
neither equipped nor funded. Such studies are better pursued following a
determination that change is indeed desirable. They are best conducted by
urban government experts in appropriate management areas who have the
necessary expertise and funds. The commission was persuaded that its delib-
erations should extend to the more serious questions underlying urban prob-
lems: it would not study city problems primarily from the standpoint of
structural and functional integration or consolidation but rather would seek
to identify substantive problems as they affect the well-being of the citizens
as well as the government of Chicago. These substantive problems were placed
into broad subject areas which were ultimately refined into eight separate
areas, the bases of the eight chapters of the Report and Recommendations
of the Chicago Home Rule Commission.* Short summaries of these chapters
follow.

INTERGOVERNMENTAL COOPERATION

The commission believed that broadening and extending intergovern-
mental cooperation among independent public bodies and agencies with the
city of Chicago and its neighboring communities was a key issue in the imple-
mentation of article VII, section 10, of the 1970 constitution. This section
of the local government article broadens the horizons for far more extensive
cooperation than had been possible in the past. The Report sought to provide
appropriate background information on national trends in intergovernmental
affairs, to describe some of Chicago's present intergovernmental activities,
and to make recommendations for future directions for the city's intergovern-
mental involvements. Mutual aid pacts to respond to emergencies, federal
and state grant-in-aid programs, service contracts between governments, and

* Chicago Home Rule Commission: Report and Recommendations (Chicago:
University of Illinois at Chicago Circle, 1972).

109

joint or multilateral undertakings by governmental units were given as
examples of possible directions for the future.

GOVERNMENT OPERATION AND STRUCTURE

Government operation and organization were considered by the com-
mission as essential subjects. Here local government can take advantage of
new technologies, new relationships between citizens and government, and
new governmental powers which might be exercised by home rule units.
Among the areas of study were the changes that appear to be taking place
within the city and the relationships between those changes and the growth
of the suburbs. The commission concluded that it is essential for Chicago
to attempt to stem the further exodus of the middle class, young marrieds,
and working class ethnic groups from the city. The commission also found
that revitalization of local government is necessary to enable the city to deal
with modern urban problems.

New methods of administration and I'epresentation were identified. The
commission recommended formalizing certain informal powers now exercised
by the mayor to strengthen the office of the chief executive. Possible staff
reorganization at the administrative level was considered. The functions of
city departments and of autonomous, single-purpose districts were suggested
for reexamination from the standpoints of possible economies, functional
integration, and consolidation. Reevaluation of the system of representation
in Chicago's legislative branch was also proposed for consideration by the
corporate authorities. Strengthening legislative responsibilities and decentral-
izing present service activities were among the possible directions suggested.

HEALTH

The possibility of an expanded role for Chicago in the delivery of health
care services, in contrast to the city's traditional role as regulator and over-
seer of health and sanitary practices, was included among the subjects for
study in the Report. The possibility of restructuring municipal health agencies
was also studied. Among the problems considered by the commission were
the presently high and still rising costs of health care, fragmentation and
lack of coordination in ser\ices and planning, poorly distributed and obso-
lete facilities, inadequate financing, shortages of personnel, and unsatisfactory
care for the poor and near-poor. The commission reported on a basic reori-
entation now taking place away from treating acute illnesses alone and toward
maintaining good health, on both the local and national levels.

Many key questions were raised concerning the city's present and potential
roles as a provider, financier, regulator, and stimulator of health care services.
The possibility that the city not be directly involved in providing medical
care services at all was raised. Among the factors discussed in viewing the

110

city's future role in health matters were the degree of adequacy and con-
stancy of long-term financial support and the administrative capacity of
local government to deal with health problems.

HOUSING

The commission considered housing within the city of Chicago to be an
essential area in which home rule powers might be exercised. Strategies for
the future were recommended. Consideration was given to restructuring and
consolidating government agencies as a complement to the substantive housing
program. The commission recognized that the supply of housing for citizens
of Chicago has been the function mainly of the private market and the
federal government, that many key factors affecting the maintenance and
rate of development of housing have been beyond the city's control, and that
actions in the housing field have been, for the most part, responses to federal
and private market initiatives. The national administration has recently
grown less enthusiastic about providing financial support for central city
housing developments. These circumstances have brought the improvement
of housing conditions in Chicago to a serious impasse.

The commission believed it essential for the welfare of Chicagoans that
city government now take the initiative to help resolve the present predica-
ment. Home rule and other powers may enable the city to undertake new
activities that will be critical to the resolution of the housing problem. The
most critical needs at this time are for the city to deal with housing matters
on a comprehensive basis, to coordinate public and private efforts, and to
devise more efficient means for utilizing local governmental resources.

Among the recommendations are those which suggest creating and main-
taining housing environments that will enable the city to serve a large middle
income population, as well as the low and upper income levels. The com-
mission also recommended that housing situations be created that will
encourage voluntary racial mixing and that a special effort be made to
provide adequate housing for those who cannot compete in the housing
market under normal circumstances.

PERSONNEL ADMINISTRATION

The city of Chicago, one of the largest employers in the entire country,
has been forced to operate for many years under an archaic civil service law,
and the commission concluded that municipal personnel administration
should be of great concern. Among the most important elements of the
modem personnel management program recommended by the commission
is the creation of a Department of Personnel containing both a strong city
personnel board and an office of personnel administration, with the two units
operating in close liaison. The personnel board would serve as a guardian

agency to protect merit principles, approve rules and regulations, and hear
appeals on employee grievances and discipline. A personnel director would
be appointed the head of the office of personnel administration; he would
have the authority to broaden, deepen, and execute a modern personnel
program. The commission suggested expanding the present exempt service
with respect to administrative, technical, and professional personnel, with
provisions to enter exempt service from the career service and to return to
the career service.

The creation of an executive career service open to top-level professional,
administrative, and technical personnel was also recommended. Among the
elements of such an executive career service might be special noncompetitive
methods of entering the service, flexible assignments with rotation in the
interest of the service, compensation arrangements that permit timely pay
adjustments for meritorious performance, and practical methods of removing
and reassigning officials without embarrassment or recrimination.

LICENSING

Licensing has direct and indirect effects upon large numbers of Chicago's
citizens; contained within its scope are broad areas of regulation affecting
day-to-day activities. Thus, licensing was considered an important area for
the commission's deliberation. Until home rule went into effect in 1971, all
Illinois municipalities operated under Dillon's Rule. Because of sometimes
inconsistent (and occasionally illogical) legislative classifications, municipali-
ties had been unable to generate comprehensive licensing programs based
upon the needs of their communities. The courts, looking more for technical
fulfillment of the delegation of powers than for adherence to the substance
of the law under challenge, have not often been helpful in this regard.

The new constitution appears to have granted the necessary flexibility
and authority to home rule municipalities. The city of Chicago may now
consider regulation and licensing on a much broader conceptual scale and
on a deeper, more comprehensive basis than was previously permissible. The
commission believed that an in-depth review of the functions relating to the
issuance, suspension, and revocation of licenses and permits will also be re-
quired in order to avoid unnecessary and undesirable diffusion of authority
and responsibility. The result will be fairer and more efficient administration
of this important municipal power.

INCURRING MUNICIPAL DEBT

The need for greater flexibility in financing municipal programs through
the issuance of municipal debt obligations was considered important by the
commission. The incurring of municipal debt could be modernized and
considerably improved. The commission recommended consideration of four

112

methods for use in incurring long-term debt: the issuance of full faith and
credit general obligations of the city payable from any and all tax receipts
and other revenues; special revenue obligations payable from the receipts of
special taxes or revenue sources other than the property tax; obligations pay-
able from receipts of municipal enterprises; and double-barrel obligations
of the city that are revenue or special revenue obligations with a backup
pledge of the city's full faith and credit. The four methods of short-term
debt issuance recommended for consideration by the city were general obli-
gation notes or certificates, short-term secured and guaranteed notes or
certificates, tax anticipation warrants, and bond anticipation notes.

REVENUE

The commission determined that one of the key areas upon which the
success or failure of all municipal programs would depend was that of mu-
nicipal finance and revenue. In its Report, the commission attempted to
present a comprehensive and technical compendium of revenue resources that
may be available to Chicago corporate authorities in exercising home rule
powers. The Report suggests ways and means for establishing reasonable,
practical, and equitable revenue programs. The aims of these programs are
to redistribute the present tax burden by lowering the demand upon property
taxes and to impose replacement taxes or new taxes to distribute the cost of
government more equitably than has been the case in the past.

Not all types of taxes were considered. Rather, the commission concerned
itself with possible major sources of revenue in a tax program that is both
administratively feasible and at the same time convenient for the taxpayer.
The program is intended to produce the fewest possible adverse economic
consequences but also provide incentives to work, save, and live in Chicago
in order to stabilize and supplement the city's tax base. Additional goals are
to help attract new industries and businesses, increase employment, and ex-
pand the city's purchasing power.

CONCLUSION

The Report and Recommendations of the Chicago Home Rule Commis-
sion suggested that the commission's work be construed solely as a threshold
study. Many recommendations will require further and more intensive re-
search by experts in management, government structure, and other fields.
Nevertheless, the commission concluded that with this beginning study the
preliminary ways of implementing home rule have been identified. It was
not anticipated that all recommendations could, or even should, be imple-
mented at once, but rather that a number of years would be required for
implementation.

In conclusion, the commission viewed home rule not as a panacea for

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all the problems of modern society, but as an important tool for use in solving
many of the most difficult problems of local self-government. The great po-
tential of the far-reaching home rule powers delegated by the 1970 Illinois
Constitution must also be viev^ed as carrying with it increased responsibility
for local authorities. Local authorities must exercise their new powers thought-
fully, reasonably, equitably, and judiciously. The good sense shown by home
rule units in using their authority to solve real problems pertaining to their
government and affairs will justify the confidence in local government showoi
at the constitutional convention and confirmed by the electorate in adopting
the constitution by popular referendum.

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CITY POWER AND THE FEDERAL SYSTEM:
HOME RULE IN CONTEXT

EDWARD M. LEVIN, JR.

How much should we expect from home rule? Because it changes the
way the local government game is played, some municipal officials and hope-
ful citizens and political scientists may confuse the rules of the game with
its purpose, and strive to discover in Illinois's new constitutional provisions
a mystic formula for achieving "instant Preamble." It would be a blessing
indeed if municipal home rule, one of the basic innovations of the 1970
Illinois Constitution, could help our cities "provide for the health, safety and
welfare of the people; ... eliminate poverty and inequality; [and] assure
legal, social and economic justice."^ Unfortunately, nothing written in the
new constitution is likely to affect the reality of urban problems — of decay,
deprivation, segregation, crime, sprawl, and pollution. Whatever solutions
there may be to these problems will be found largely outside of legal con-
cepts of state constitutions and judicial interpretations of municipal power.

The struggle of local officials to apply home i"Tale powers to current con-
ditions will provide eventful days in Illinois's city halls and county court-
houses. But it is the events which are taking place in the national and state
capitals — involving clashes between conflicting political philosophies and
priorities — which will set the limits on the development of effective urban
programs. Only with an understanding of these events can local officials
consider how the exercise of home rule powers may best complement the
strengths and offset the weaknesses of federal and state programs. Home
rule can have the greatest meaning for those communities whose leaders
appreciate the considerable extent to which external forces impinge on
local problem solving.

In a time when cities were perceived as wealthy and independent, the
notion of governmental autonomy had strong attraction. How degrading it
must have been for city officials to be told that no matter how self-sufficient
their city might be, under Dillon's Rule it had to get permission from the

* Preamble, 1970 Illinois Constitution. Occasional references in this paper to
"cities," "city halls," and "mayors" should be interpreted as including other municipal
and county units, headquarters, and officials as appropriate.

115

state to regulate its affairs. Home rule in those circumstances would have
been comparable to a coming of age, a manumission. That is not the situation
today. However great the promise of home rule to California in 1879, to
Minnesota in 1896, to Ohio in 1912, what it meant then to Los Angeles, St.
Paul, or Toledo cannot now mean much to Chicago, East St. Louis, or Peoria.
Today, cities are not self-sufficient. They are often unable to render
effective local service without financial assistance from federal and state
programs. The public expects areawide urban cooperation and concern by
local government for social issues. These are expectations which often depend
upon the carrots and sticks of federal and state programs. The trends of new
programs, and the accompanying variations of public sentiment, provide the
context in which the meaning of Illinois home rule will be formed.

THE NATIONAL SHIFT TO "LOCAL RESPONSIBILITY"

Some of the recent expressions of national commitment to a New Fed-
eralism appear wholly consistent with the home rule philosophy of city
power. There is a strong assertion that local responsibility for urban problems
should be encouraged. President Nixon's proposals are a startling departure
from the heyday of federal categorical grant programs under President Lyn-
don Johnson's Great Society. While those programs brought a great increase
in federal funds for urban needs, they often brought as well a bewildering
increase in federal forms, guidelines, and bureaucrats.^ The substitution of
general revenue sharing and special revenue sharing for scores of human
development and community development programs seems to offer mayors
as well as governors considerable discretion in the expenditure of federal
dollars.^ In his 1971 State of the Union Message, President Nixon expressed
his rationale for revenue sharing this way :

The fact is that we have made the federal government so strong it grows muscle-
bound and the states and localities so weak they approach impotence.

If we put more power in more places, we can make the government more
creative in more places. . . .

Local government is the government closest to the people, it is most responsive
to the individual person. It is people's government in a far more intimate way than
the government in Washington can ever be.*

'The complicated record of federal aid for urban areas through the 1960s is
documented in John M. DeGrove, "Help or Hindrance to State Action? The National
Government," in Alan K. Campbell, ed., The States and the Urban Crisis (Englewood
Cliffs, N.J.: Prentice-Hall, 1970), p. 139.

' General revenue sharing is the reallocation of federal tax dollars to states and
local governments with no strings (except for minimal requirements such as publica-
tion of fund use and compliance with Davis-Bacon Act wage rates). Special revenue
sharing is restricted to specific substantive purposes with or without strings and may
require prior federal review of its intended uses. In the latter form, it is occasionally
referred to as "block grants."

* Emphasis the president's.

116

A first step in the transformation of federal categorical aid programs into
locally-administered revenue-sharing programs came in the adoption of the
five-year, $30 billion General Revenue Sharing Act of 1972.^ Presidential
efforts to accelerate the process may be seen in the budget message for the
1973-74 fiscal year (fiscal 1974), which called for the sharp curtailment of
scores of categorical programs, with the implicit threat that revenue sharing
is the only device through which Congress may expect to appropriate federal
dollars for urban social programs. Even if Congress should be inclined to
blunt these presidential initiatives — and if so inclined, successful — the
future direction of federal aid seems clearly away from the assumptions under-
lying categorical programs of the 1960s.

There is further evidence of the president's commitment to strengthened
mayoral authority in a number of formal and informal policy changes in the
administration of the programs which revenue sharing is proposed to replace.
Planned variations to existing model cities programs authorized the mayors
of some twenty cities much leeway (and some extra money) in expanding
the scope of projects from model neighborhoods to city-wide operations.
Further, in planned-variation cities the mayor is given formal authority to
review and comment on the allocation and use of federal grants affecting the
city even under programs administered through noncity grantees.^

There is increased respect for the interests of municipal officials even
under programs which specifically involve consideration of nongovernmental
or extraterritorial interests.'^ In the administration of federally-assisted projects
which require citizen participation, community groups are reminded that
ultimate authority rests with city hall. Recommendations of areawide plan-
ning organizations which conflict with the proposals of applicant local agen-
cies are often ignored. My own experience is that in recent years federal
bureaucrats have increasingly assumed that they are expected to resolve
any programmatic differences they might have with local officials and that,
if push comes to shove, the White House may intervene on the side of the city.

MATTERS BEYOND LOCAL CAPACITY — REGIONAL CONCERNS

However strong cities may grow in regulatory authority, wealth, and na-
tional recognition, serious urban problems which are not susceptible to mu-

'^ Fiscal Assistance to State and Local Governments Act, Pub. L. 92-512, first
session, 1973. Special revenue-sharing proposals have been less successful. See foot-
notes 14 and 22.

' See HUD memorandum, "Procedures for Implementing and Operating Planned
Variations," July 29, 1971; issuance, "Interdepartmental Federal Policy and Informa-
tional Guide on Chief Executive Review and Comment, Planned Variations Demon-
stration, Issued under the Auspices of the Under Secretaries Group," December 11,
1972.

' The conclusions of this paragraph, while necessarily subjective, reflect the clear
consensus of participants and observers at all levels of program operations.

117

nicipal solution persist.® One of the areas of greatest concern is the resolution
of metropolitan issues.

Each day's newspaper brings fresh evidence of the apparent irreconcil-
ability of interests in a metropolitan region. Wherever there is a city with
suburbs, there are conflicting priorities and incompatible goals. One com-
munity's park is the anticipated right-of-way for another community's access
highway. One village's industrial tax base furnishes the pollution \vhich de-
stroys the residential values of a neighboring village. Even where the interests
of several communities coincide — as in the control of flood plain develop-
ment, the preservation of a sprawling hardwood forest, or the provision of
adequate low- and moderate-income housing for present residents — each
community faces the dilemma of risking a disproportionate burden if it acts
alone. The result is often action by none, to the detriment of all.

Occasionally, metropolitan problems transcend even state boundaries and
confront the entire federal system with a challenge of frustrating complexity.
Air and water pollution control in the Chicago-Gary area and development
of adequate transportation facilities in the St. Louis-East St. Louis region
are typical of a whole host of problems treatable, if at all, only on an inter-
state, metropolitan-wide basis.

Everywhere throughout urbanized areas there is the need for a process
of orderly decision making, for metropolitan planning, so that each of those
who must allocate capital resources for essential services — for water, high-
ways, sewage and solid waste disposal, drainage, recreational facilities, schools,
hospitals — may at least operate with the kno\vledge of what the others hope
to accomplish. Perceptions of needs and solutions change over time; effective
metropolitan planning must be not the production of a static document but
the d\Tiamic process of accommodating growth. If Illinois is to enjoy the
benefits of sound metropolitan planning and decision making, an urban per-
spective which goes beyond municipal boundaries is imperative.

MATTERS BEYOND LOCAL CAPACITY — CITIZEN INVOLVEMENT

Within large cities another problem is apparent. Every large city is
composed of neighborhoods and communities whose residents at times feel
as remote from the decision-making process of a city council as do cities
from the actions of Congress or the state legislature. The same arguments
used to justify revenue sharing or home rule could as well be addressed to
the need for neighborhood government, or at least for more citizen partici-
pation in local programs which particularly affect a subcity area. After all,
each of Chicago's fifty wards has more than twice the number of people

' This paper acknowledges but does not discuss the enormous importance of
national priorities and of the national economy (matters beyond state and often,
seemingly, federal control).

118

required for automatic municipal home rule status under the Illinois Con-
stitution.

Many urban ills undoubtedly can be traced to the lack of identification
which individual citizens feel with the workings of government at all levels
— federal, state, and local. Formal efforts to improve communication between
government and citizens might not reduce crime or improve housing main-
tenance (although neither possibility is farfetched), but such efforts could
surely mollify the broad public distrust of conventional governmental struc-
tures. This distrust has been manifested in the allure of Alinsky's self-help,
confrontation-style community organizations, in the strength of support re-
ceived by political candidates who espouse populist views, and in stiff voter
resistance to tax increases. Unchecked, such cynicism may find expression
in less socially acceptable forms, starting perhaps with tax revolts and wide-
spread voter apathy.

Nothing in the president's New Federalism, or in the local government
article of the Illinois Constitution, precludes city efforts to improve commu-
nications with its citizens, to develop increased resident participation in the
development and execution of city programs, or to experiment with decen-
tralized functions to be performed by nascent neighborhood governments.
Although they would require changes in the present structure of local govern-
ment, these activities are not beyond the technical capacity of municipalities.
In the absence of a federal or state requirement, however, there is little
cause to expect the larger cities — where changes would make the most
difference — to initiate such innovations.

CONTINUING FEDERAL INTERVENTION

Home rule units in Illinois would be among the principal beneficiaries
of all forms of revenue sharing. This is not, of course, because of home rule,
but because the sharing formulas favor the larger cities and counties. While
federal aid may represent only a small portion of a city's total budget,^ it
often constitutes the bulk of a city's discretionary funding authority, that is,
that part of the budget not irrevocably committed to salaries, debt, and essen-
tial services. A determination of the applicability of federal statutes which

° An ofRcial, in-depth study concluded that federal assistance contributed less than
10 percent of governmental funds available in a community. Intergovernmental
Assistance: A Federally Sourced Budget for the City and County of San Francisco,
Fiscal Year 1968 (Washington, D.C.: Bureau of the Budget, September 1969). A
more recent study of one county indicated that in fiscal 1970 the federal government
was the source of approximately 15 percent of governmental spending on local functions
(exclusive of the postal service and of income support payments). Loans and grants
constituted less than half of the federal share, while direct federal spending made up
the rest. Scott Keyes, "The Public Sector in Champaign County, Illinois," Illinois
Business Review 29, no. 11 (December 1972), p. 6.

119

set conditions for the use of federal assistance, and of the procedures required
to demonstrate compliance, will materially affect the actual extent of local
authority and responsibility.

If all the federal categorical grant programs which revenue sharing is
intended to replace were to vanish overnight, taking with them their require-
ments for "maximum feasible citizen participation," for "workable programs
for community improvement," for "comprehensive health plans," there
would remain a considerable body of federal law restricting a community's
use of federal aid funds.

Title VI of the Civil Rights Act of 1964 and Title VIII of the Civil
Rights Act of 1968 respectively prohibit denial of equal benefits from the
use of aid funds on account of race or other improper discrimination and
require affirmative furtherance of fair housing in the federal administration
of any assistance program.^"

The National Environmental Policy Act prescribes the preparation of a
detailed statement of environmental impact before approval of federally-
assisted projects which would significantly affect the quality of the human
environment.^^

The Uniform Relocation Assistance Act of 1970 requires adequate local
efforts to provide relocation payments and services to persons displaced by
federally-assisted governmental action. ^^

The Intergovernmental Cooperation Act of 1968 authorizes the president's
Office of Management and Budget to monitor "Circular A-95" reviews,
through which state and substate regional agencies act as clearinghouses to
review and comment upon the suitability of applications for a broad array
of federal aid programs. ^^

Just because a law is on the books does not, of course, assure that it will
be applied uniformly or to the letter. The statutory conditions noted above
and those in other federal legislation are susceptible to varying interpreta-
tions as to their applicability to revenue-sharing programs and as to the
strictness with which they are to be applied. In this unprecedented situation
of one set of laws (revenue sharing) offering considerable discretion, while
other laws appear to limit this discretion sharply, much depends upon how
bureaucrats and judges view the new rules of the game. The rules have not
yet been made, but special interests will undoubtedly assert their version of

"Pub. L. no. 88-352, 78 Stat. 241, 42 U.S.C. 2000a (1964) ; Pub. L. no. 90-284,
82 Stat. 73-92, 18 U.S.C. 245 (1968) (codified in scattered sections of 18, 25, 28,
42 U.S.C).

"Pub. L. no. 91-190, sec. 102(2) (c), 83 Stat. 853, 42 U.S.C. sec. 4332(2) (c)
(1970).

"Pub. L. no. 91-646, 89 Stat. 1894 (1970) (codified in scattered sections of 42,
49 U.S.C).

"Pub. L. no. 90-577, 82 Stat. 1098 (1968) (codified in scattered sections of 40,
42 U.S.C.) ; Office of Management and Budget, Circular A-95.

120

the congressional mandate. This assures some period of doubt — if not of
strict statutory compliance — on the part of local officials.

While general revenue sharing has no strings, at least at the federal level,
there will presumably be some strings attached to the special revenue-sharing
programs. Bills introduced in this session and the last session of Congress
(none of which have been passed at this writing) all contain requirements
for some kind of federal review of local plans." The final form of these
measures will indicate a great deal about the continuing role which the
federal government may be expected to play in controlling the allocation of
resources by local government.

The federal government's continuing local assistance programs, unaffected
by the proposed shift to revenue sharing, have their own additional pre-
requisites. For instance, the Urban Mass Transportation Act of 1964, under
which the president proposes that $1 billion be appropriated for the 1974
fiscal year, provides that transit grants can be made only for transportation
systems included in a comprehensive plan for the urban area.^^ In turn.
Comprehensive Planning Assistance grants to state, city, and metropolitan
agencies, authorized under section 701 of the Housing Act of 1954, and bud-
geted at $110 million for fiscal 1974 (an unusual increase of 10 percent over
fiscal 1973 levels), are conditioned upon the designation of a formal mecha-
nism to involve citizens directly in the planning process.^*^

New federal assistance programs for statewide land use control and re-
lated functions may be expected to involve additional planning requirements
on an unprecedented scale. We can only guess at the full impact of a pro-
posed National Land Use Policy Act,^^ as superimposed on the provisions
of the Coastal Zone Management Act of 1972^^ and of the Federal Water
Pollution Control Act Amendment of 1972.^^ It is too early to predict the

" Principally S. 3248 (The [proposed] Housing and Urban Development Act of
1972), 92d Cong.; S. 1743, H.R. 7277 (The [proposed] Better Communities Act), and
S. 1744, all now pending in Congress. It is noteworthy that in 1970 Congressman
Reuss, Democrat of Wisconsin, proposed that revenue sharing be conditioned upon
state and local reforms, specifically including the provision of constitutional home rule.
See Henry J. Reuss, Revenue Sharing: Crutch or Catalyst for State and Local Gov-
ernments? (New York: Praeger, 1970), p. 126; H.R. 11764, 91st Cong.

"Pub. L. 88-365, sec. 4, 78 Stat. 304, 49 U.S.C. 1603(a) (1964).

" Pub. L. 560, 83d Cong., 68 Stat. 640, 40 U.S.C. sec. 461 (1954) ; HUD Hand-
book CPM 6041. lA, ch. 4, sec. 5, Mar. 1972. It may be significant, however, that the
administration's proposed Responsive Governments Act would replace the present
comprehensive planning assistance program with one that no longer requires citizen
participation.

"See, for example, S. 632 and H.R. 7211, 92d Cong.; S. 268, H.R. 10294, pro-
posed land use bills pending in Congress.

'' Pub. L. 92-583, 86 Stat. 1280, 16 U.S.C, sees. 1451-64 (1972). "Coastal" areas
include areas along the Great Lakes.

" Pub. L. 92-500, 86 Stat. 816 (1972) (codified in scattered sections of 12, 15, 31,
33 U.S.C).

121

precise effects of these acts, but taken together they will certainly require
states to require local governments and quasi-governments (metropolitan
agencies and substate districts) to establish comprehensive, continually adap-
tive land use policies, with accompanying priorities for public investment
and limits on private development.

THE FUNCTION OF GRANT CONDITIONS

The congressional purpose in attaching strings to grant programs is evi-
dent. Responding to a national constituency, Congress acts to assure that
what it interprets as a matter of national priority is adhered to by recipient
agencies. Put another way, if Congress is spending the money on behalf of
all the nation's taxpayers, then Congress wants to be certain it is buying,
on behalf of those taxpayers, the most urgently needed goods and services.
These are presumably commodities which might not be furnished by the
grantees of federal assistance if they were simply given the funds and left
to their own devices.

The inherent conflict of this process is often overlooked or misunderstood.
By definition, grantees of categorical aid are expected to chafe under a pro-
gram's restrictions, sometimes as to what is required to be done with the
money, and sometimes as to what else has to be done to get it. If there
were no disparity between the requirements of the law and the inclinations
of the grantees, there would be no need for the program; revenue sharing
without strings would be adequate. Only where disagreement may be expected
is there a rationale for imposing programmatic requirements. By and large,
categorical grant programs have been remarkably successful in "buying"
local actions desired by Congress. Slums have been cleared, transit systems
planned, and housing and neighborhood centers built which — for better or
worse — would probably not have happened under revenue sharing. The
cities have become used to the system, strings and all, and have growoi
dependent upon the program dollars. This was exemplified in the mayoral
outer)' after the president announced the termination of the once-reviled
Community Action Program of the Office of Economic Opportunity.^"

Local compliance with federal program conditions is not always reluctant.
A requirement that appears fair on its face and that is fairly and uniformly
administered is occasionally the excuse which allows responsible local officials
to do that which they know should be done, but which would be politically
hazardous in the absence of apparent federal coercion. This has often been
the case in federal housing and urban development programs, with bitter-

'" See, for example, Charles Bartlett, "[Chicago Mayor Richard Daley] Firm
Friend of Poverty Program," Chicago Sun-Times, Feb. 12, 1973. For a practical con-
sideration of what ought to go into the administration of federal aid programs, see
Francis D. Fisher, "The Carrot and the Stick," Harvard Journal on Legislation 6 (May
1969) :401.

122

sweet requirements calling for the elimination of restrictive building code
standards, the adoption of open occupancy ordinances, or cooperation with
metropolitan housing development programs. Repeatedly, communities have
undertaken planning, relocation, citizen involvement, and equal opportunity
actions in not-so-gioidging compliance with federal requirements.

EXPANDED STATE RESPONSIBILITY

If New Federalism represents the withdrawal of federal efforts to monitor
local performance, state government will have at least a limited opportunity
to fill the gap. Without revising its tax structure or attempting to restrict
local powers, a state such as Illinois could condition the redistribution of the
state share of federal general revenue-sharing funds upon certain local ac-
tions. In so doing, the state need not adopt cumbersome categorical aid
programs of its own. The state could offer revenue sharing carrots through
formula grants to communities participating in areawide planning and imple-
mentation, or in active equal opportunity programs, or in whatever is con-
sidered of high priority to the state. -^ This would, of course, be a departure
from the precedent set in allocating to cities and counties on a per capita
basis, with no strings attached, a portion of the Illinois state income tax.

A state may find further opportunities to influence local operations in
federal special revenue-sharing legislation.^^ If state governments are given
broad discretion in the distribution of package grants within the state, the
power of the state bureaucracy could rival that now attributed to federal
agencies. This would be particularly true if federally funded, state-approved
community development and housing grants are offered as substitutes for
the current urban programs. If a state such as Illinois chooses to intervene
more directly in urban problem solving — with additional state funds, a
restructured property tax system, new state land use controls, an aggressive
housing policy, or the like — there is no limit to its potential impact on
local government.

THE ROLE OF HOME RULE

What, then, is the place of home rule in this complex federal system?
How much should we expect? In their account of how urban issues were
treated at the Sixth Illinois Constitutional Convention, Thomas R. Kitsos

"' As a complementary measure, the legislature has the option of revising the
formula according to which local governments receive their portion of federal general
revenue-sharing funds. Pub. L. 92-512, sec. 108(c), first session, 1973.

^ Early comments on the president's proposed Better Communities Act emphasize
that this form of special revenue sharing would give governors new control over
spending. See, for example, Tom Littlewood, "Nixon Proposal Would Shift U.S. Aid
Away from Mayor," Chicago Sun-Times, April 20, 1973; and John L. Moore, "Ad-
ministration's Community Development Plan Is Revised," National Journal 5 (June 2,
1973) :797.

123

and Joseph P, Pisciotte described how the home rule provision altered the
relationship between the state and its home rule units: "Whether this
change in relationship will result in the solution of urban problems is open
to question. However, one immediate ramification will be the elimination of
an excuse for inaction on the part of public officials in home rule cities and
counties. No longer will these officials be able to shift the blame to 'that non-
responsive legislature'."^^

The elimination of the excuse may prove to be the real value of home
rule. Any recent observer of cities would conclude that a fresh look at their
problems and at the function of urban government is in order. A new con-
stitutional framework provides Illinois cities with an appropriate opportunity
to take that fresh look. Even if it should turn out that home rule offers no
new answers to urban problems, a new approach to these problems may
reveal a useful role for traditional programs, for new federal or state pro-
grams, or for the innovative use of intergovernmental cooperation, specifi-
cally authorized by the 1970 constitution.

In exercising their home rule authority, Illinois municipalities will not
be restrained by the limitations found in other states. ^Vriting the year before
the Illinois convention, Frank Grad observed, "It has long been clear that
home rule powers are not what they seem. Because home rule powers are
generally couched in fairly absolute terms, and because states frequently
wish to legislate in areas that affect municipalities, they create a legislative
no-man's land where the municipality is uncertain of its power to act and
the state is umvilling to assume the burden."-* The Illinois Constitution's
statement of liberal construction is clearly intended to spare home rule units
this dilemma.

It is less clear whether Illinois home rule cities will be able to transcend
the parochialism implied by the constitutional delegation of authority. Call-
ing for increased federal involvement in urban problems, the late Charles
Abrams in 1965 anticipated much of the urban legislation of the late 1960s.
He charged that "under the cloak of home rule and local autonomy, the
state has passed down much of its own so\'ereign responsibilities to a myriad
of local (mostly suburban) governments, each of which is concerned with
its own welfare to the exclusion of its neighbors."-^

The ability and willingness of cities to broaden their concerns are the

^Thomas R. Kitsos and Joseph P. Pisciotte, "Con-Con and the Urban Crisis:
A Note on Some Related Constitutional Changes," in Michael A. Murray, ed., The
States and the Urban Crisis (Urbana: Institute of Government and Public Affairs,
University of Illinois, 1971), pp. 71, 78.

"Frank P. Grad, "The State's Capacity to Respond to Urban Problems: The
State Constitution," in Campbell, The States and the Urban Crisis, p. 44.

" Charles Abrams, The City Is the Frontier (New York: Harper and Row, 1965),
p. 211.

124

great unknown qualities of Illinois home rule. Without adequate financial
resources, no government can do much to ameliorate or innovate. But with
whatever resources are available, Illinois cities will have an unprecedented
opportunity to demonstrate their responsibility by allocating funds wisely.
Together, home rule and revenue sharing provide that opportunity.

Floyd Hyde, HUD Assistant Secretary for Community Development,
himself a former mayor (of Fresno, California) , spoke last year to local
officials in San Antonio about the meaning of revenue sharing. His com-
ments are equally appropriate in considering the meaning of home rule.

To make these revenue-sharing packages work, there are burdens which you
must assume with your new decision-making powers. First, I suggest you should
encourage full citizen involvement in setting your priorities and in designing and
implementing solutions to your problems. An informed and involved citizenry is
one of the surest ways to guarantee that the most pressing needs are being met and
that the proposed solutions are designed to be acceptable for the future. A great
deal of effort will be required to do this — to involve people of all interests in your
community — but the rewards can be well worth the effort.

Second, you cannot think . . . only in terms of the city's geographic boundaries.
You are part of a metropolitan area located in the second largest state in our nation,
which state also is part of a multistate region. In addition, you are the gateway to
Mexico for many items of trade. What happens in San Antonio has a very real ef-
fect on these larger areas. As you plan for the utilization of your revenue-sharing
funds, it is in your best interest to communicate with and work cooperatively with
all jurisdictions in your metropolitan area and your larger community of interest.
Time and effort devoted to this today can help eliminate problems which may
otherwise arise in the future.^'

Just as revenue sharing challenges cities to rediscover and develop their
own programs freed from the constraint of rigid federal guidelines, municipal
home rule challenges cities to rediscover and exercise their powers freed from
the constraint of Dillon's Rule. If the reality of city power is something less
than is implied in these challenges, the opportunity for effective local action
remains.

^* Speech (San Antonio, Texas) July 17, 1972. Mr. Hyde was subsequently ap-
pointed undersecretary of HUD.

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SPEECHES

THE NEED FOR POSITIVE LEADERSHIP

NORMAN ELKIN

The question of home rule, as one astute public figure remarked, is
really a question of the distribution of power. In that context, I think what
impressed me most observing the recent state constitutional convention was
the fact that people who have power sure hate to give it up. I observed a
standard scenario at the convention, a sort of litany of how people who
have power talk about those who want it. The litany is always the same.
I call it the universal put-down. Those who argued against home rule pri-
vately or otherwise would always cite, in crescendo fashion, three reasons
for not giving local officials power. First, they would start with insinuations
that "those people down there" really are not competent. "They're not
ready" — i.e., they're not ready for home rule in Chicago, certainly not
in Carbondale. If the incompetency argument didn't grab you they would
step up the pace a little and imply that local officials, as opposed to state
officials, are somewhat less honest, insinuating that local officials would
rob you blind. And if the corruption issue didn't grab you, they would look
at you and try to figure out whether you were a liberal or a conservative.
If they thought you were a liberal, they would imply that the locals were
really a bunch of "rednecks" and reactionaries. Conversely, if they thought
you were a conservative, they would imply that the locals were irresponsible
radicals foaming at the mouth.

It's a funny thing. Wherever I went I kept hearing the same story. For
example, after the constitution was adopted, I went to a meeting of the
committee on implementation of the constitution, which Sam Gove chaired.
To that meeting came some elected county officer — I don't remember
whether he represented the clerks, treasurers, or auditors — and he was
arguing against giving county boards power to govern because (1) county
boards are incompetent ("They're not like us, that's why they don't get
elected to be county clerks, or auditors.") ; (2) on top of that they're not
fiscally responsible (dishonest?) ; and (3) on top of that, they're not as pro-
gressive as we are when it comes to government (the ideological argument) .
Again, when federal revenue sharing came up in Congress one senator,
probably reflecting the view of many others, based his opposition to revenue

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sharing on the grounds that "those people" in the state legislatures and in
the court houses were generally reactionary, undeserving, and by implication
dishonest and corrupt.

I used to hear the same thing in many city halls in the country when
local officials, at least privately, spoke about neighborhood groups and the
efforts to achieve community control through such vehicles as community
action programs: "Those people out in the neighborhood don't know what
responsibility is; they need to be educated first. They're not ready and if
you gave them a chance they would probably turn dishonest. And on top
of that some of them are radicals."

That is the litany of the universal put-down. The moral is that the other
side is never ready to share power.

Given that kind of mentality I think the achievement of home rule in
Illinois is something that we can be proud of. Furthermore, Illinois home
rule is unique in that it has built into it certain safeguards against a rever-
sion to the pre- 1970 pattern of state-local relationships, or perhaps I should
say the pre- 1970 condition of local dependency. The most critical safeguard,
although it is in a sense a time bomb, is the preemption clause. In an
address to the Ohio Constitutional Revision Commission in November 1971,
I stated my explanation of what gave rise to the need for the preemption
clause, as I saw it. I quote from that speech :

The real problem in implementing home rule is not one of theoretical definitions
but rather how to create an operational situation which will prevent the state legis-
lature or a judge from arbitrarily taking home rule away. . . . The problem \\as
how to make the legislature pause . . . long enough to realize that it was now deal-
ing with a new situation.

Now, it just so happens that at the time the constitution was written the
partisan and factional divisions in both houses of the legislature made it
almost impossible for the legislature to frivolously emasculate home rule.
The danger now is that demographic changes and political volatility will
change the factional and partisan lineups in such a way as to jeopardize this
"stand off" between the pro— and anti-home rule interests. I \vould assume
that such a change certainly will happen before the end of this decade.
And therefore I want to quote another part of that speech which I made
in Columbus, Ohio, eighteen months ago :

In this context it is vitally important to understand that the real effect of this
change [the 60 percent preemption provision] is to buy time. Everybody needs time
to adjust to the new situation. It's going to take a few years until everybody learns
how to play it under the new rules and how to govern, including the city of Chicago.

We are buying time, we are racing time against the legislative clock. As
I read the background paper prepared by Mr. Green it is obvious that many
factions in the General Assembly are rather anxious to undo the home rule

130

provisions of the constitution. And they can do it, quite properly, if they
can get 60 percent majorities in both houses.

Looking back over the two years that we've now been living with the
new constitution, I am happy to say that the dire predictions of doom made
by the home rule opponents haven't happened — we're healthy and happy.
But what disturbs me is that I haven't seen the emergence of any political
or institutional leadership in Illinois to move forward with the thrust of the
new constitution. There has been no concerted effort to significantly imple-
ment the provisions of the new constitution. Let me give you a couple of
examples.

First, let's talk about local debt. I was sitting with my friend Jack Beatty
at a meeting which he was hosting not too long ago. It was a meeting of
the board of directors of the Civic Federation. Jack asked for an expression
of policy on a pending bill which would slap a referendum requirement on
all home rule units on debt above the percentage which is now protected by
the constitution. I made three arguments against that action. I said it was
premature. After all, I knew of no unit that had used up its constitutionally
protected debt. Everybody was still below what they could bond without a
referendum. What was the hurry? Secondly, I said that referenda weren't
the only way to control public spending. After all, on most bond issue
referenda you're lucky if you get 35 percent of the people to turn out.
You're dealing with a technique that hasn't really been that effective except
when people have really been aroused over taxes or some specific issue. As a
general control on fiscal management the referendum is an obsolete mecha-
nism. The third argument I made is that we should wait until there is
evidence of the abuse that so many anti-home rule people feared, and then
let's see if we can get some local solutions. The whole idea of home rule
is to put the monkey on the back of the guy who is taking the action.

Anyhow, I lost the argument and ended up casting the sole negative
vote. What bothered me was that I remembered talking to people during
and after the convention about the question of the regulation of local debt
under the new constitution. Many informed and sincere people felt that
there was going to have to be some legislation to control local government
debt. The question that ran through our minds then was: Why doesn't the
Municipal League, or the city of Chicago, or some other interested party
sit down and think out a system of controls that wouldn't handicap and
hamstring local governments the way the old constitution did: make it a
liberal, flexible system and then introduce appropriate legislation to imple-
ment it? Nobody did their homework. So what happens? An organization
like the Civic Federation, with a knee-jerk reaction, votes to support legis-
lation to slap referenda back on all nonconstitutionally protected nonrefer-

131

endum local debt and we're off to the races, back to 1870. I hope the bill
doesn't pass, but it may. And if it does pass, city officials and county officials
and those civic and professional organizations that presume to watch over,
love, and protect local governments will be to blame. They haven't done
"their own thing" to create positive legislation to protect the new philosophy
of state-local relations.

Let's take another example of a failure to act quickly to implement the
new constitution: differential taxation. A lot of people worked hard to
incorporate the power of differential taxation for local units into the new
constitution. The main reasons were to give counties sufficient powers to
provide services in new growth areas, at least on a temporary basis, to pre-
vent premature municipal incorporations, and to alleviate the need to create
special districts. The Commission on Urban Area Government's studies
showed that an average of forty special districts a year were created in
Illinois during the 1960s to meet demands for urban services. Of the 149
new municipalities that had been incorporated in Illinois in the previous
fifty years, only one qualified for home rule under the 25,000 population
standard: the planned community of Park Forest. The average town incor-
porated in those fifty years had, as of 1969, between 4,000 and 5,000 people.
Having incorporated the power of differential taxation into the new con-
stitution to deal with the problem of urban services in such areas, the
convention required that there be implementing procedures for its use.
Our commission recommended a bill, which was introduced, dealing with
only a minor portion of the use of differential taxation. That bill had to do
with how counties could respond to the growth of population in unincorpo-
rated areas. It did not deal with how counties might use differential taxation
to provide special services in incorporated areas, and it did nothing about
the cities using the powers of differential taxation within their own juris-
dictions. We did work with some of the city people, however, and tried to
encourage them to formulate a companion bill dealing with municipal use
of this power. Anyhow, our bill passed the House by something like 123-3,
or 123-2. It died in the Senate, for what reason I do not know. The point
is that nobody was ready in 1971 to act on implementing this provision in
the constitution which potentially broadens the powers of cities and counties
immeasurably. The apparent theory that seemed to prevail in many munici-
pal circles at that time was that the best position to take on preservation
of home rule powers was to take a protective position. Anything that local
officials had any doubts about seemed to evoke a negative response, and
in case of doubt it was deemed better to vote against something than to take
a chance and vote for it. In this vacuum Oak Park took the bull by the horns
and by ordinance adopted a differential taxation measure. That was knocked
out by the courts. The courts said there must be implementing legislation.

132

So here we had a key power aimed at enabHng local governments to provide
special services where need existed, and nobody took the time to create
the legislation and the leadership to make the exercise of this home rule
power possible.

Now I made a prediction about differential taxation in that same speech
to the Ohio Constitutional Revision Commission that I cited earlier. I said
as far as cities are concerned I doubt whether many cities will use the power
of differential taxation very often. This is for the obvious reason that dif-
ferential taxation is a very dangerous power: it can be used to favor the
well-to-do and to discriminate against the less well-to-do areas. It reminds
me always of when I first started working as a consultant in downstate
Illinois. I was appalled by the fact that whenever I walked into the better
neighborhoods there were always paved streets, sidewalks, and street lights,
but when I went into the poor neighborhoods — often they were black
neighborhoods — there were dirt roads, no curbs, no sidewalks, no street
lights, and a lot of water lying around in backyards from the rain. I used
to ask people, "Why don't these areas have basic public facilities?" And I
was usually told that public facilities "down here" were financed by special
assessments. Apparently (so the local officials reasoned) the blacks and the
poor folks generally didn't want the facilities. Otherwise, why hadn't they
asked for them! Obviously the better-to-do folk must have asked to be
assessed because they always seemed to get the streets and sidewalks. I have
since been convinced that fiscal vehicles like special assessments — and to
me differential taxation is conceptually very close to special assessments —
can be very useful in helping the well-to-do areas but that they are not
very often too helpful for the little guy. After all, there is no point in taxing
the poor; they don't have the tax base. So I say one must use the power
of differential taxation with care lest it become a means of economic
discrimination.

On the other hand, in my opinion differential taxation could be very
significant for the long-term survival of the city, for one reason if nothing
else. It is my personal belief that in the years to come we will witness a
much more sincere and comprehensive political commitment to the re-
vitalization of the central areas of our large cities. I don't think that I am
wrong in this. The "downtown" projects of the past will pale in comparison
to the kind of effort that we are going to see in the future. I predict this
even though we are witnessing the withdrawal of federal assistance for
inner city redevelopment: there has been virtually no funding of downtown
projects for a number of years now. Significantly, however, a number of
states — California and Minnesota particularly — are now providing local
systems for revenue financing of downtown rebuilding projects based on

133

future increments in downtown taxable values. Differential taxation, which
is a much more viable fiscal vehicle than what Minnesota and California
have, can be a way to finance the rebuilding of the inner cities. As a matter
of fact, if we had had this constitution five years earlier we would not have
had to go through the charade in Chicago of creating an urban transporta-
tion district in the downtown area to finance our "El" removal and subway
extension program. Differential taxation is indeed a significant tool, and
the city of Chicago could make good use of this power. Frankly, I don't
know why legislation to effectuate the use of this power hasn't been enacted.
But this is another example of what I find disturbing — • a lack of institu-
tional response to the opportunities that the new constitution offers.

Let us take the County Executive Act as another example of the lack
of institutional response to an opportunity. The Commission on Urban Area
Government recommended a bill for the county executive. It was adopted
by both houses and signed into law in December 1971. That was quite a
surprise. Nine counties actually had referenda based on it only 120 days or
so after it became law. All lost, unfortunately, but considering the lack of
time for preparing for the referenda, that wasn't too bad. Now I want to
tell you how the commission's bill on the county executive form of govern-
ment, which is the "trigger" provision in the new constitution for giving
counties home rule, came to be law. We had assumed that the various asso-
ciations of county officials and all the other people concerned with the sub-
ject ■ — - township officials, legislators, and others — would be introducing bills
by the dozens to implement the new powers for counties. We felt this way
because there was so much discussion at the constitutional convention on the
need to modernize and strengthen county government, particularly in the ur-
ban counties. Ron Johnson, who was my assistant, started to tell me all the
diverse ideas that were being discussed. Some people really favored a sort
of county manager concept — a business manager — when they talked about
county executives. Others viewed the county executive as a sort of county
mayor — a ceremonial figure. Still others viewed the county executive as a
combined political and executive figure, much like the president of the
United States. There were a lot of differences that people had as to what
the county executive really meant and what county home rule was all about.
So my assistant said to me: "Let's have an ideal bill drawn up and while
it might never pass it should really set forth what a county executive ought
to be — all the powers — really lay it on them — veto powers, chairman of
the board, chief executive officer, item veto, and so forth." And so a bill
was written to be put into the legislative hopper simply as a yardstick to
which the warring parties could refer in accommodating to each other's
differences, simply as something that people could repair to just to keep
the legislative dialogue moving. That bill was introduced and it turned out

134

to be the only county home rule bill in the legislature. Nobody else intro-
duced any. And it passed.

Let's move to something that's a little bit more current, the CTA. Here's
an interesting example of what disturbs me. Many people will probably dis-
agree with my comments and they are entitled to do that. What I am dis-
turbed about here is that when the first major crisis on a local service occurs
since the adoption of the new constitution we find local people running to
Springfield just like pre- 1970 saying "Give us money, we can't carry the
load." Now how do you expect the legislators from downstate to support
the concept of local home rule if the cities come with their hats out when-
ever they get into financial trouble? Perhaps this is a perspective that not
many people share. I understand the conditions surrounding the CTA and
why city officials might take a totally different perspective. For example, I
can understand that the city might say, "Well look, the CTA serves other
areas than the city, why should we alone bail it out?" That's a good point
and I accept it. Another valid point the city might make is that this emer-
gency aid is only the beginning of a permanent subsidy and I can see why
a city would be hesitant to step in and become the permanent subsidizer.
Look what happened to New York City: transportation subsidies almost
made that city bankrupt. The point is that regardless of the reasons why
a city might want to go to the legislature for aid, the fact is that when it
does, the impact of that action has to be assessed in terms of the pre- 1970
tradition in the state of Illinois, essentially an anti-home rule tradition. It
seems to me, knowing how long this CTA crisis was brewing — and it has
been brewing since it was formed because the very nature of the legislation
creating it doomed it - — there should have been a more comprehensive
approach. I would have liked to see a concept that went something like this :
We, Chicago and Cook County, will support local transportation and other
local services. In return for supporting specific local services with local re-
sources we want the state to give cities a larger share of the income tax
revenues as a measure of general financial support. I don't know what the
localities now get from the income tax — 8.5 or 1 2 percent. Whatever it is,
it seems to me, and it has always seemed to me, that this is a very miserly
portion. Frank Kirk may disagree, but I've always felt that the cities should
get a much more substantial portion of the state income tax. In the context
of home rule, what I would have envisioned is a situation where the cities
throughout the state would have said: "Let's accept the present Illinois
system of income tax distributions as a form of revenue sharing and let's
expand it. The state ought to give us a bigger share, thereby creating a
floor under local services, and we in Chicago, Decatur, or wherever will
bear the responsibility to make sure that local services continue, whether it
be transportation, public health, or whatever."

135

The shucking off of specific local functions to higher levels of authority
is, in my opinion, counter to home rule and I predict that you're going to
see many cases where village and city officials transfer functions to special
districts rather than take them away from special districts. Many of them
don't want the responsibility of self-government. My own town has just
transferred its recreation functions to the park district. There is a behavior
pattern evolving here which is disturbing. In a sense it shows that we're not
responding, not taking advantage of the opportunity to make the home rule
concept meaningful in positive terms of self-government.

We have to button down these things about home rule that have to be
buttoned down now, not later on when it is too late. We have several major
gaps in the structure of home rule. I \vant to get to them because they were
the fundamentals that were discussed at the constitutional convention and
then dropped, or dealt with in light fashion. The three problems that were
not dealt with significantly are the problems of viability, regionalism, and
urban growth. By viability I mean the question of who should have home
rule. After all, there has to be some relationship between the right to rule
and the capacity to govern. The convention ended up saying that any town
with over 25,000 population was qualified to exercise home rule powers.
There is no magic in the 25,000 figure. It could have been 10,000 population.
Some wanted 15,000, while others wanted a 100,000 population standard.
Anyhow, out of all the discussion three standards of viability were ordained :
(1) 25,000 population automatically gives a municipality home rule; (2) a
municipality can elect to have home rule if it votes for it; and (3) as far
as counties are concerned, all they need do is adopt a structural reform —
adopt a county executive form of government, without any reference to
size. These are the only standards that we have for home rule eligibility.

The viability of local government is a serious issue because under the
present circumstances we are increasing population in the United States at
the rate of 3 million a year. We need effective institutions to govern this ex-
panded, mobile population. There is a question ^vhether we can afford to
neglect one of the most valuable resources we have, and that is government
itself. I think if anything came out of my experience with the Commission
on Urban Area Government it Avas the philosophy that government is a
resource and that it too must be developed, just as one talks about developing
land or developing health services. The structure of government, the ca-
pacity and personality of government, is in itself a resource that is important
to the maintenance of our standard of living. And our standard of living at
the present time is slipping, including meatless days, energy crises, and who
knows what next. This is a significant issue that has not been dealt with
and that has to be dealt with.

We achieved a certain amount of notoriety during the Con-Con period

136

when we pointed out that on a per 1,000 population basis we had more
governmental units than dentists in Illinois, a figure intended to show how
ludicrous the situation had become. We have an average of nine units of
local government laid on every taxpayer in the urban sections of Illinois.
We tried (and when I say "we" I mean the commission that I was associated
with) to help in this area by developing a bill called the Local Government
Boundary Adjustment Act. It would have provided some mechanisms for
facilitating mergers, exacting higher standards for new incorporations, and
expediting annexations and consolidations. That bill unfortunately did not
pass but something needs to be done about the proliferation of inadequate
minigovernments. We have the semicomic situation where towns with as
few as 1,500 or 1,200 persons have joined the ranks of home rule cities by
referendum. We welcome them aboard but I don't look to them to change
the course of history.

A second gap that hasn't been dealt with is the problem of regionalism.
The CTA crisis is a perfect example of the vacuum that exists in this area.
Let's grant that transportation is a regional problem. Our commission advo-
cated extending the principle of home rule to metropolitan services. We
advanced this concept because we sincerely felt that the issue most likely
to undermine home rule in the big cities will be a failure to come to grips
with the problem of regional services. When you talk about cities like
Chicago, New York, Los Angeles, or Detroit you're talking about crises in
metropolitan services and if you don't solve them you're going to end up
with center cities that, from a decision-making standpoint, are increasingly
irrelevant. We advocated and I would advocate for your consideration again
tonight that the principle of home rule be extended to the question of
metropolitan government. Bear in mind that since 1870 in the state of
Illinois local governments almost universally have been created by the people,
usually by referendum. With very rare exceptions for bodies like metropolitan
exposition centers and public building commissions, all governmental bodies,
be they cities, villages, park districts, you name it, are derived from popular
demand. If governments created by the people are good enough to fight
fire and mosquitoes, they should be good enough to respond to problems of
transportation and other regional needs.

I am afraid that some of the present thinking about creating a regional
transportation authority by statute will further rigidify some of the worst
forms of our local governmental structure. For example, there is talk of a
six-county regional transportation district based on the property tax. How
ironic! The whole country is trying to reform the property tax and here
we're talking about creating a new regional unit to levy a new property tax.
The whole country is crying for responsiveness in government, for better
relationships between people and their officials and here again we're talking

137

about creating an appointive board. We've heard that such a board should
have two, or three, or six members — all appointed by two distant officials,
the governor and the mayor. \Vell, that's what the CTA is all about. So
here we're talking about extending the same pre-home rule concept of
government with all of its structural inadequacies. I think we need to take
another tack and expand the concept of home rule, push its frontiers out
a little and apply it on a metropolitan scale.

The third and last serious gap in the area of local government is the
problem of urban growth. The commission's research pointed out that since
the end of World War II about a third of all the housing units in the state
of Illinois were built in unincorporated areas. Many of these areas have sub-
sequently been incorporated. That's where the new growth is, outside the
cities and outside the suburbs where the land is still available. There's where
people are moving and many of the problems that both the suburbs and the
central cities face are due to the growth and movement of population.

We operate in a vacuum in Illinois as far as urban growth is concerned.
There is no institutional structure for dealing with the problem of new
growth on the fringe of metropolitan areas to the satisfaction of the interests
of the metropolitan area as a whole. I would submit for your consideration
two thoughts. One is the need to develop a fiscal system where the public
wealth of the community is distributed equitably. The best example I know
is the course adopted in Minnesota for the seven-county Minneapolis-St.
Paul metropolitan area. (We, by the way, slipped their concept in modified
form into one of the commission bills.) The concept they have in Minnesota
is as follows : 40 percent of the annual increment in taxable values generated
by nonresidential growth — that is, by industrial and commercial construc-
tion in the metropolitan area — is taken off the top by the state and placed
in a regional account. It is then redistributed to all the cities and suburbs
in the metropolitan area on a per capita basis with some qualification based
on the level of wealth and/or poverty in an area. In other words, there is
a slightly higher apportionment for the poorer areas. Now what this does
is make sure that if there is a regional shopping center, or an industrial park,
in one part of the metropolitan area, ever^'body in the metropolitan area
benefits fiscally; the city benefits from some of the wealth being created in
the suburbs and the suburbs benefit from some of the wealth being created
in the city. Now I believe there is a bill in the Illinois legislature to draw
a five- or six-mile radius around regional shopping centers and let all the
towns within that radius get a portion of the sales tax generated by the
centers. In the North Shore area the Northeastern Illinois Planning Com-
mission is working with three communities — Northbrook, Northfield, and
Glenview — on a joint planning effort which includes an agreement to dis-
tribute, in some way, certain commercial tax benefits that might come in

138

that area. Well, I think that these are good beginnings. I think the system
that they have in Minnesota is far superior, however, because it brings
everybody, the whole region, in, not just two or three neighboring commu-
nities. Many of our problems of school finance would disappear if we had
a system like Minnesota's. It is ludicrous to say that communities like Chi-
cago — and when I say Chicago I mean the total metropolitan area — or
the Minneapolis metropolitan area cannot afford good schools. These are
two of the richest communities in the country. The problem is that often
the school children aren't where the tax base is, and the tax base isn't where
the children go to school. This creates serious fiscal disparities. I think that the
Minnesota concept could ultimately bring the problem of fiscal inequities
in school support and other basic services under control.

The second fiscal direction I think we ought to consider as a means of
coping with new growth and the rejuvenation of the old cities is some kind
of central banking system for governments, a system whereby all govern-
ments • — federal, state, and local — may borrow from a capital pool for
long-term loans for major improvements. It is particularly needed for small
towns. Going back to Frank Kirk, I was impressed by the fact that it was
harder for a town like Carbondale to get the first $5 million for their sewage
treatment plant than it is for a city the size of Chicago to get a $150 mil-
lion bond issue for school expansion. It's hard when you're small. We need
something for funding capital improvements for cities and towns, large and
small, that is a little bit more intelligent and rational than our current
system of fragmented debt financing.

The last thought I would leave with you is that we need, at least as a
beginning, some kind of organization of collective effort in this whole area
of local home rule, state-local relations, and intergovernmental relations.
A year ago we urged (and a bill was introduced in the Illinois House calling
for) the creation of a "little ACIR" modeled after the federal Advisory
Commission on Intergovernmental Relations. The intent was to create a
watchdog organization sanctioned by the state legislature and composed of
prestigious members who could educate public officials as well as the general
public, provide information for the legislature, innovate, think ahead, and
recommend those things that are necessary to make the whole area of
state-local relationships work and work well. This, at least, is the minimum
effort that we need.

139

SOME REFLECTIONS ON HOME RULE

EDWARD A\. KRESKY

The difficult task of equating central authority with the worthwhile de-
sire of retaining local control over local affairs is an issue which will never
be satisfactorily and totally resolved. And that, of course, is why the home
rule debate retains the interest it does. The issue itself is as old as man's
desire to better order his life by constructing an organized framework within
which he and his family might safely prosper yet still control their own des-
tinies. It is a problem that is probably prehistoric in its origins.

Our civilization's oldest and most continuous administrative organization,
and one of its most successful, has, of course, been the Roman Catholic
Church, headquartered in Rome and administered today through dioceses
on every continent of the world. The church has an enviable record in bal-
ancing central authority while stimulating diversity within a strong unity.
The recent ecumenical councils, in a way constitutional conventions, were
successful and significant efforts by the church to adjust the necessary bal-
ances between central authority and the local powers exercised by a bishop
and his priests within an individual diocese.

Nearly two hundred years ago the American founding fathers attempted
to deal with a somewhat similar issue in establishing, out of thirteen sov-
ereign states, a new national sovereignty. A division of powers between states
and federal government was established by the Constitution, and the system
has responded with a fair degree of success to the new demands of new
ages. The current attempts to create a New Federalism, after the winding
down of the Vietnam War, represent the latest in a continuing series of
adaptations of the federal system.

In municipal home rule we find an issue whose historical roots can be
traced back many years but whose current origins can be found primarily
in the growth of cities in America. Toward the end of the nineteenth cen-
tury, with large cities springing up in many of the states, we found the need
for an additional governmental and constitutional overlay within the tradi-
tional federal-state system. The new cities were calling out for special atten-
tion to their special problems of urbanization. They wanted the power to
deal with their own problems. They appeared to have the necessary resources
to solve these problems by themselves if they had the necessary legal power

141

to deal with them. Remote, rurally dominated state legislatures were not pre-
pared to meet this issue, nor were they politically interested in dealing with
it. At that time the Congress and the presidency were even more remote than
governor and legislature from the problems of the cities.

Out of these circumstances came the movement for home rule for the
nation's growing cities. Beginning with St. Louis in the 1870s, cities began
to secure from their state constitutions special recognition and special powers
to deal with their own special problems. The attack on Dillon's Rule had
begun. The movement spread, so that by the first part of the twentieth cen-
tury more than half the states had enacted constitutional provisions that
either limited the legislature in dealing with the cities or required the legisla-
ture to devolve upon the cities powers to act with respect to their own prop-
erty, affairs, and government. This traditional approach to constitutional
home rule usually grants authority, through the constitution, to a locality to
adopt and amend a charter and to pass ordinances on matters relating to its
affairs. Often enabling statutes are enacted enumerating the powers that the
local governments may exercise. The power to enact laws of state-wide con-
cern is retained by the legislature. This approach attempts to separate mat-
ters of local concern from those of state concern. This has proven to be a
difficult thing to do and has resulted in judicial interpretations that have,
in the main, severely limited the actual home rule powers of local govern-
ments.

A new approach to home rule began to receive increasingly serious con-
sideration after the Second World War. Leaders in this new approach were
Jefferson Fordham, dean of the University of Pennsylvania Law School, the
American Municipal Association, such students of state-local relations as
John Bebout, and others. The new approach attempts to reverse completely
the traditional constitutional position regarding the powers of local govern-
ments, particularly cities and counties. This approach would permit a home
rule local government to exercise any power not specifically denied it by
general law or by its own charter. This, of course, is basically the approach
of your new Illinois constitutional provision.

Alaska adopted this form of home rule for its constitution. A New York
State commission on which I served recommended in the early sixties the
abandonment of the traditional New York home rule provisions for this
new look, and although the concept was highly regarded, it was not accepted.
It is both important and encouraging that a major state like Illinois, embrac-
ing as it does a great and complex metropolitan area, has adopted this new
form.

This change is encouraging for many reasons. It will give us an oppor-
tunity to see whether the reversal of presumption regarding the powers of
a home rule locality will, in fact, produce a more harmonious relationship

142

between the central government and the home rule locality. Further, it will
demonstrate whether this new approach may better stimulate local govern-
ment to attempt to meet its own local problems and solve them, a position
advocates of the new approach to home rule have always taken. Certainly,
the new awareness of local government powers in Illinois — evidenced by
this assembly — should make a better climate for improved local govern-
ment service delivery and performance.

In my own judgment, in the final analysis effective home rule will come
more as a result of legislative attitudes rather than from constitutional for-
mulas. This does not mean that constitutional provisions are of small import.
They are not. They are the foundation upon which state-local relations are
based. But, moving from a legal framework to the operating realities of
government, the role of the legislature becomes increasingly crucial. Under
the traditional formula of home rule, the home rule powers of local govern-
ments were systematically whittled away with the aid of narrow judicial
construction and interpretation. The very same thing can happen under the
new approach to home rule. One must always be prepared for the pressure
of general legislation preempting for the legislature powers that constitu-
tionally could and perhaps should have remained with the home rule
locality.

If a legislature is of a mind to see to it that a large amount of power
should devolve upon the home rule localities, it can easily provide for such
devolvement, whatever system of home rule is being used. If, on the other
hand, and this is more often the case, the legislature chooses to restrict home
rule powers, it will find the legal and political means to do so, regardless of
the constitutional home rule provisions. Thus, to me, a crucial issue is.
Should the governor and legislature have such power over the fate of local
governments? Years back, I thought this to be poor policy. Today I am not
so sure.

Many of the really fundamental problems facing the individual local
governments in this nation are problems that far outstrip the political bound-
aries, the economic powers, and the realizable political jurisdictions of an
individual local government. Solutions to our modern urban-age problems,
so metropolitan in character, will not be found within the confines of classical
home rule. Nor, might I add, will they often be found by a series of home rule
communities acting voluntarily on the basis of legally permissible intergov-
ernmental cooperation.

My New York experience in intergovernmental activities may be of perti-
nence and interest. In the years 1955 to 1970, almost every legal barrier for
intergovernmental cooperation had been lifted in New York State. Did this
produce any significant progress in either urban planning or urban action
through intergovernmental cooperation? I am afraid I have to report that

143

the answer is no. Municipalities banded together and formed a Metropolitan
Regional Council, which quickly became a talk show and was forgotten.
Today in all-to-many metropolitan areas elsewhere in the nation, COGs —
Coimcils of Government — - have fallen upon similar fates.

On the other hand, without necessarily embracing the wisdom of their
policies, state-created, region-wide special purpose authorities and agencies
have not only planned, but they have done. Whether they be large and
powerful organizations like the Port Authority of New York and New Jersey,
whether they be new organizations like the Urban Development Corporation
in New York, or whether they be organizations like the new regional trans-
portation structures being formed increasingly throughout the country, they
have one thing in common: they do. The reasons for their impact may be
traced back to such matters as finance, legal powers, and other kinds of
clout that stem from state government initiative. If these agencies on occa-
sion have poor policy direction, I would not put the blame on them. Rather
I would put the blame on governors and legislatures as the ultimate policy
directors.

I was quite impressed with the background papers prepared for this
Illinois Assembly on Home Rule. One of Edward Levin's comments in his
paper deserves special attention. He said: "Unfortunately, nothing written
in the new constitution is likely to affect the reality of urban problems — • of
decay, deprivation, segregation, crime, sprawl, and pollution. Whatever solu-
tions there may be to these problems will be found largely outside of legal
concepts of state constitutions and judicial interpretations of municipal
power."

I believe that the answers to the metropolitan problem can best be
found through full use of the sometimes difficult and always diverse system
of American federalism. All levels of government must play active roles.
Home rule makes sense only if it enhances the initiative and abilities of local
government to handle its share in finding solutions to the major domestic
problems that threaten to overwhelm this nation.

The federal government must provide coherent national policy and funds.
It need not provide armies of bureaucrats nor special congressional preserves
of power and influence. Obviously, I favor revenue sharing and I also favor
properly funded special revenue sharing in such substantive areas as com-
munity development, education, and health services. I am not enthusiastic
about direct federal activity whether it be in the south Bronx, south Chicago,
or south Georgia. Too often there has been a willingness on the part of
federal officials to wield great power but not to assume corresponding respon-
sibility when the urban action gets hot.

The metropolitan ball game should increasingly be played at the state
level if we are going to have more effective delivery of governmental sen'ices

144

and so make a dent in the problems that have beleaguered our cities and
now are beginning to do the same to our suburbs. Governors and legislatures
must begin to provide not only policy and funds, just as the federal govern-
ment must do, but increasingly the states may be forced to begin providing
metropolitan services through direct state activities.

We see the beginnings of this, as I have indicated, in the transportation
field. As to community development, the New York Urban Development
Corporation may very well be the wave of some distant future. Superior
financial strength and breadth of political and legal jurisdiction make state
government well suited to tackle certain wide-ranging, expensive domestic
problems that are metropolitan- or region-wide in character.

As to our local governments : at the state house level, understanding and
sympathetic implementation of constitutional home rule will better equip
local governments to deal with genuinely local problems. It will also help
permit localities to play a constructive role with the higher levels of govern-
ment in dealing with metropolitan problems. We can no longer expect even
great cities to deal exclusively with the variety of urban issues that seem to
bear little relation to political boundaries.

County home rule will be of help in strengthening county government.
Unfortunately, with some notable exceptions the traditional approach of
county government to most urban-age problems has been languid. Theoreti-
cally, counties can and should do more than they have. In actuality, the
record is a slim one, but there is some potential for improvement. The new
Illinois constitutional provisions for county home rule should stimulate coun-
ties to play a more vigorous and responsible role in our governmental system.

If these comments appear to downgrade the role of local governments,
I would have to deny this. I would hope that local governments would at-
tempt to discharge fewer responsibilities, but discharge the ones they have
assumed more effectively. It would be better for a community if the local
government collected its garbage properly under a state-sponsored regional
solid waste disposal program than to try to do the whole job itself and make a
terrible mess of it.

As to the future, I would hope to see a system of effective federalism
coming into being where home rule would contribute toward the effective
discharge by local government of its portion of a multiple responsibility.
Let us take, for example, the broad area of community development — or
rather, more importantly, of community development and redevelopment.
The federal government — president and Congress — in concert, not in
strife, would lay down the broad ground rules for the effort. The federal gov-
ernment would provide the tax incentives and the tax deterrents to encourage
development. It would also provide, through such a medium as a well-
funded program of special revenue sharing, direct federal funds to help

145

the state and local bodies make a reality of national and community
policy goals.

The state governments would have to assume a more pivotable role. They
could establish regional community development agencies with broad powers
to act, to build, to rebuild — yes, even to use a bulldozer from time to time.
These agencies would be armed with federal and state funds, the backing
and authority of governor and legislature, and they would be clearly charged
with the primary responsibility for orderly community development designed
to improve the sagging quality of living in our urban areas.

Local government, reorganized and strengthened through home rule
charter reform, would provide a sure continuity of local services to spur
community development. Police and fire protection, schools, sewerage and
garbage collection, and all the other vital local services, will have to be per-
formed efTectively if community redevelopment is to come to pass. The local
government must also serve an important function as the conduit trans-
mitting community aspirations to the regional development agency.

For my part, in such a system zoning powers should be lodged in the
state-led regional body, and I realize how much "heat" is contained in that
suggestion. But, if zoning remains in local hands, I would hope that in
return for federal and state dollars and commitment localities would pro-
vide the necessary cooperation in zoning to help make balanced regional
community development a reality.

In conclusion, I ofTer this set of remarks neither as a wild-eyed advocate
of home rule nor as a detractor. I am for home rule if it will strengthen local
government in our overall system of government, but, if it creates more
conflicts than it solves, then by definition home rule is not functioning prop-
erly. At this point in our history there is really only one overriding considera-
tion. What will help our ailing cities, and that next group of patients to be
admitted to the emergency ward — our older suburbs? I don't think home
rule, by itself, can provide the basic answers to dilemmas of this urban age,
but I am for home rule because I know it can help.

146

AUTHORS

Rubin G. Cohn, Professor, College of Law, University of Illinois at Urbana-
Champaign; member, advisory group, Illinois Home Rule Clearinghouse
and Policy Analysis Project; former Staff" Counsel, Committee on the
Judiciary, Sixth Illinois Constitutional Convention

Stephanie Cole, Research Associate, Institute of Government and Public
Affairs, University of Illinois at Urbana-Champaign ; project director,
Illinois Home Rule Clearinghouse and Policy Analysis Project

Clyde W. Forrest, Professor, Department of Urban and Regional Planning,
University of Illinois at Urbana-Champaign; member, advisory group,
Illinois Home Rule Clearinghouse and Policy Analysis Project

Eugene Green, doctoral candidate. Department of Political Science, Uni-
versity of Illinois at Urbana-Champaign

Allen Hartman, First Assistant Corporation Counsel, City of Chicago;
former Executive Director, Chicago Home Rule Commission

Edward M. Levin, Jr., Assistant Director, Illinois Department of Local
Government Affairs; member, advisory group, Illinois Home Rule Clear-
inghouse and Policy Analysis Project; former Assistant Regional Adminis-
trator, Community Planning and Management, U.S. Department of
Housing and Urban Development; former Lecturer, Institute of Govern-
ment and Public Affairs, University of Illinois at Chicago Circle

Susan B. Mack, former Research Assistant, Institute of Government and
Public Affairs, University of Illinois at Urbana-Champaign

John C. Parkhurst, attorney-at-law, Peoria; former Illinois state legislator;
former Chairman, Committee on Local Government, Sixth Illinois Con-
stitutional Convention

Robert N. Schoeplein, Associate Professor, Institute of Government and
Public Affairs and Department of Economics, University of Illinois at
Urbana-Champaign; member, advisory group, Illinois Home Rule Clear-
inghouse and Policy Analysis Project

J. Nelson Young, Professor, College of Law, University of Illinois at
Urbana-Champaign ; member, advisory group, Illinois Home Rule Clear-
inghouse and Policy Analysis Project

149

PARTICIPANTS AND STAFF

Louis Ancel

Ancel, Glink, Diamond & Murphy

Chicago

*JoAN Anderson
Trustee, Metropolitan Sanitary

District of Greater Chicago
Chicago

Professor James M. Banovetz
Chairman, Department of PoHtical

Science
Northern Illinois University
DeKalb

Norman J. Beatty

Executive Vice-President, Civic

Federation of Chicago
Chicago

Michael A. Bilandic
Alderman, City of Chicago
Chicago

Nancy Brandt

Chairperson, Task Force on County

Government
League of Women Voters of Illinois
Highland Park

Malcolm Carnahan
Director of Program Planning,

U.S. Department of

Housing and Urban Development
Chicago

William Cassella
Executive Director, National

Municipal League
New York

Professor Leo Cohen

Center for Urban and Environmental

Research and Services
Southern Illinois University
Edwardsville

Professor Rubin G. Cohn
College of Law
University of Illinois
Urbana-Champaign

Stewart H. Diamond

Ancel, Glink, Diamond & Murphy

Chicago

Professor Alice Ebel
Department of Political Science
Illinois State University
Normal

Professor Clyde W. Forrest
Department of Urban and Regional

Planning
University of Illinois
Urbana-Champaign

Professor Stanley Hallett
Center for Urban Affairs
Northwestern University
Evanston

Indicates round-table chairperson.

153

Allen Hartman

First Assistant Corporation Counsel,

City of Chicago
Chicago

Marshall Holleb

Holleb, Gerstein, Glass & Glicken

Chicago

Roger Hughes
Lindsay-Schaub Newspapers
Decatur

A. L. Hydeman, Jr.
Executive Deputy Secretary,

Department of Community Affairs.

State of Pennsylvania
Harrisburg

Mary Kane

Southwestern Illinois Metropolitan

x^rea Planning Commission
Collinsville

Shirley Keller
League of Women Voters

of Cook County
Northbrook

Frank A. Kirk

Director, Department of Local

Government Affairs
Springfield

Professor Thomas R. Kitsos
Bureau of Governmental Research

and Service
University of Colorado
Boulder

Herbert C. Klynstra
Director of Local Government,

Illinois Agricultural Association
Bloomington

Senator Jack T. Knuepfer
Elmhurst

HiLMER C. LaNDHOLT

Corporation Counsel,

City of Decatur
Decatur

John N. Lattimer

Executive Director, Commission on

Intergovernmental Cooperation
Springfield

Adrienne Levatino

Public Information Specialist, U.S.

Department of Housing and Urban

Development
Chicago

Edward M. Levin, Jr.

Lecturer, Institute of Government

and Public Affairs
University of Illinois
Chicago Circle

Professor Edward Marciniak
Institute for Urban Life
Loyola University
Chicago

Senator Dawn Clark Netsch
Chicago

Kent M. Parcell

Manager, Urban Development

Department, Illinois State

Chamber of Commerce
Chicago

John C. Parkhurst

Leiter, Newlin, Eraser, Parkhurst

& McCord
Peoria

Frank Patalano
Director, Office of Planning

and Analysis
Springfield

154

*Professor Joseph P. Pisciotte
Institute of Government and Public

Affairs
University of Illinois
Urbana-Champaign

Professor Milton Rakove
Department of Political Science
University of Illinois
Chicago Circle

Matthew L. Rockwell
Executive Director, Northeastern

IlHnois Planning Commission
Chicago

Steven Sargent
Executive Director, Illinois

Municipal League
Springfield

Professor Robert N. Schoeplein
Institute of Government and Public

Affairs
University of Illinois
Urbana-Champaign

Lee J. Schwartz

Office of the Corporation Counsel,

City of Chicago
Chicago

Robert Sharp
Chapman & Cutler
Chicago

William S. Singer
Alderman, City of Chicago
Chicago

Professor Leroy Wehrle
Sangamon State University
Springfield

Professor J. Nelson Young
College of Law
University of Illinois
Urbana-Champaign

Guest Speakers

Norman Elkin

Former Executive Director,

Illinois Commission on Urban

Area Government

Edward M. Kresky
Vice-President,

Wertheim & Company
New York

Staff

*Director Samuel K. Gove
Stephanie Cole
Kurt P. Froehlich
Jean Baker

Reporters

Eugene Green
Caren Goloff
Susan B. Mack

* Indicates round-table chairperson.

155

ILLINOIS ASSEMBLIES

7200-815

C
BT

ILLINOIS ASSEMBLIES

Assembly on State Government, Allerton House, Monticello, Illinois,
February 21-23, 1958

Assembly on Illinois Political Parties, Allerton House, Monticello,
Illinois, December 8-10, 1959

Assembly on Illinois Local Government, Allerton House, Monticello,

• Illinois, January 18-20, 1961

Assembly on the Illinois Constitution, Allerton House, Monticello,
Illinois, January 25-26, 1962

Assembly on the Office of Governor, Allerton House, Monticello, Illi-
nois, December 6-7, 1962

Assembly on Political Representation, Allerton House, Monticello,
Illinois, February 17-18, 1964

* Assembly on Private Groups in Illinois Government, Allerton House,

Monticello, Illinois, January 21-22, 1965

*Assembly on the State and Its Cities, Illinois Beach Lodge, Zion, Illi-
nois, December 8-10, 1966

*Assembly on Manpower for Illinois Governments, Allerton House,
Monticello, Illinois, January 31-February 2, 1968

*Assembly on Illinois State and Local Finance, Allerton House, Monti-
cello, Illinois, December 8-10, 1968

*Assembly on the Kerner Report Revisited, Allerton House, Monticello,
Illinois, January 11-13, 1970

*Assembly on the States and the Urban Crisis, Illinois Beach Lodge,
Zion, Illinois, January 14-16, 1971

*Assembly on Higher Education and Public Service Careers, Allerton
House, Monticello, Illinois, April 5-7, 1972

* Reports still available from the Institute of Government and Public Affairs, 1201
West Nevada, Urbana, Illinois 61801.

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UNIVERSITY OF ILLINOIS-URBANA ^

352 07731L696I C003

HOME RULE IN ILLINOIS URBANA

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