APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DOWNING, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 27, 1973.
This direct appeal by leave of court (50 Ill.2d R. 302(b)) is taken from a judgment of the circuit court of Cook County holding unconstitutional an ordinance (72-0-54) adopted by the Cook County Board of Commissioners.
The ordinance in question created a new office of Cook County Comptroller and provided that this office was to be filled by appointment by the President of the County Board with the approval of the County Board. Defendant, Thomas P. Beck, was appointed as acting comptroller.
The State's Attorney of Cook County filed a complaint for a declaratory judgment and a writ of quo warrantor challenging the validity of the ordinance. He alleged that the action taken by the County Board was an invalid attempt to contravene the statute directing the Cook County Clerk to perform the duties and functions of ex-officio comptroller. (Ill. Rev. Stat. 1971, ch. 34, pars. 1142 through 1142.14.) The circuit court found the ordinance to be unconstitutional and enjoined the defendant from assuming the position.
The duties, powers and functions of the Cook County Comptroller under the ordinance are the same as those granted by the aforementioned statute to the Cook County Clerk as ex-officio Cook County Comptroller. Both this ordinance and the statute direct the comptroller to prepare the estimate of revenue available for appropriation in the annual Cook County budget and then require that he approve all expenditures in accordance with the budget. The ordinance specifically provided that it was intended to supersede this statute whose substantive origin may be traced to 1887. Laws of 1887, p. 153.
The primary issue is whether the Cook County Board was constitutionally vested with authority to supplant an existing statute which assigned certain functions to the Cook County Clerk. Plaintiff basically contends that the office of county clerk is a constitutional county office (Ill. Const. (1970), art. VII, sec. 4(c)) and, as such, is afforded significant protection from any attempt by the County Board which might tend to "eliminate" it; that section 6(f) of article VII of that document imposes the limitations contained in section 4 of the local government article upon a home-rule county's attempt to transfer said functions; and, that section 4(d) of article VII provides that the County Board may not eliminate but only supplement those statutorily delegated duties. Conversely, defendant argues that a home-rule county, such as Cook County, acting pursuant to section 6(a) of article VII of the 1970 constitution may transfer functions pertaining to its government and affairs from one county officer to another. During oral argument of this cause the League of Women Voters of Cook County and Illinois were granted leave to file a brief amicus curiae which supports the position taken by defendant.
Section 6 of article VII of the 1970 constitution provides in pertinent part as follows:
"(a) A County which has a chief executive officer elected by the electors of the county and any municipality which has a population of more than 25,000 are home rule units. Other municipalities may elect by referendum to become home rule units. 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.
(f) * * * A home rule county shall have the power to provide for its officers, their manner of selection and terms of office in the manner set forth in Section 4 of this Article."
The provisions of section 4 of article VII necessary for consideration of this cause, state:
"(c) Each county shall elect a sheriff, county clerk and treasurer and may elect or appoint a coroner, recorder, assessor, auditor and such other officers as provided by law or by county ordinance. Except as changed pursuant to this Section, elected county officers shall be elected for terms of four years at general elections as provided by law. Any office may be created or eliminated and the terms of office and manner of selection changed by county-wide referendum. Offices other than sheriff, county clerk and treasurer may be eliminated and the terms of office and manner of selection changed by law. Offices other than sheriff, county clerk, treasurer, coroner, recorder, assessor and auditor may be eliminated and the terms of office and manner of selection changed by county ordinance.
(d) County officers shall have those duties, powers and functions provided by law and those provided by county ordinance. County officers shall have the duties, powers or functions derived from common law or historical precedent unless altered by law or county ordinance."
Section 4(c) of article VII permits a county to appoint certain officers by county ordinance. The action of the County Board in creating the office of comptroller was a proper exercise of the powers granted under section 4(c), and plaintiff does not specifically dispute this. The question, however, is whether duties given to ...