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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 



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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 



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^'/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 



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. 

I 

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. 

II 

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. 

IV 

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. 

V 

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, 

VI 

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. 

IX 

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. 

X 

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. 

XI 

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. 



11 



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. 



12 



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. 



13 



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. 



14 



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. 



15 



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). 



16 



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. 



17 



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." 



18 



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). 



19 



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). 



20 



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. 



21 



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 



22 



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. 



23 



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). 



24 



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). 



25 



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). 



26 



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). 



27 



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 



28 



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- 



29 



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." 



30 



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. 



31 



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. 



32 



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). 



33 



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. 



34 



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." 



35 



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 



37 



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. 



38 



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). 



39 



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). 



40 



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 



41 



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). 



42 



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 



43 



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- 



44 



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). 



45 



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). 



46 



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). 



47 



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). 



48 



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. 



49 



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). 



50 



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. 



51 



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. 

52 



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. 



53 



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 



54 



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. 



55 



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 : 



14 



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. 



56 



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 



57 



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 



58 



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). 

59 



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. 



60 



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). 



61 



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). 



62 



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). 



63 



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- 



64 



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 



65 



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 



66 



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. 



67 



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 



68 



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). 



69 



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. 



70 



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. 



71 



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 



73 



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. 



74 



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. 



75 



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. 



76 



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. 



77 



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. 



78 



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). 



79 



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. 



80 



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. 



81 



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. 



82 



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. 



83 



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. 



84 



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. 



85 



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. 



86 



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 



87 



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). 



88 



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 



89 



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. 



90 



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). 



91 



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. 



92 



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). 



93 



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 



94 



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. 



95 



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. 



96 



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. 



97 



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. 



98 



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. 



99 



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].' 



"5 



'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. 



108 



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 



m 



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 



113 



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. 



114 



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. 



125 



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 



129 



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 



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 



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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