APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN S. GHENT, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
This appeal involves the home rule provision of the Illinois Constitution 1970, article VII, section 6. Section 6(a) provides:
"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."
There is in the city of Rockford a public library organized in accordance with chapter 81 (Ill. Rev. Stat. 1975, ch. 81, par. 1-0.1 et seq) known as The Illinois Local Library Act. This act provides in section 3-1 thereof that:
"* * * [T]he corporate authorities shall levy a tax for library purposes of not to exceed .15% of the value of all the taxable property in the city, as equalized or assessed by the Department of Local Government Affairs." Ill. Rev. Stat. 1975, ch. 81, par. 3-1.
The city of Rockford passed a tax levy ordinance for 1976 for library purposes based on a tax rate of .1604%. The Winnebago County clerk, Paul P. Gill, refused to extend the levy on that basis, contending that under The Illinois Local Library Act the tax levy for library purposes was limited to .15%.
The city filed a suit for declaratory judgment asking that the court declare that the city is entitled to the amount of taxes based on the .1604% levy, which it claims it is entitled to levy under its home rule powers to tax. The city also asked for an injunction to enjoin the county clerk from extending "any amount for the tax levies for library purposes as so levied by the City of Rockford in amounts less than the amounts provided for in said tax levy ordinances."
The library board sought and was granted leave to intervene in the case and adopted the pleadings of the city.
In his answer the county clerk raised two affirmative defenses, (1) that the tax rate for library purposes was limited by The Illinois Local Library Act to .15%; that the Rockford Public Library is a quasi-municipal corporation which is a separate entity organized under a separate and complete act; that the city is merely a catalyst for the board of directors through which the library tax is budgeted, levied and collected and that the "Home Rule" provisions of the Illinois Constitution of 1970 free home rule units from tax rates and debt limitations only in matters pertaining to the governmental affairs of the city and only insofar as they do not conflict with "general statutes designed to provide an ordinary manner in the levy, extension and collection of taxes through the County"; (2) that the 1976 tax levy ordinance and the 1977 tax levy were illegal, null and void because in both years the city failed to allow 10 days between the passage of the appropriation ordinance and passage and publication of the tax levy ordinance; the 1976 appropriation ordinance having been passed on January 19, 1976, approved on January 22, 1976, and published January 28, 1976; whereas the tax levy ordinance was passed on January 22, 1976; the 1977 tax ordinance having been passed on February 28, 1977, approved on March 4 and published on March 11, but the tax levy itself having been passed on February 28, and approved on March 4.
After both sides had submitted briefs for the consideration of the court, the city moved for summary judgment, which the trial court granted. From the order of summary judgment, requiring the county clerk to extend the amounts levied for library purposes by the city council, notwithstanding the limitation in The Illinois Local Library Act, the county clerk appeals.
The question presented on this appeal may be stated in simple terms do the home rule powers of the city of Rockford allow it to impose a tax rate for its local library in excess of the statutory limit stated in The Illinois Local Library Act under which the library was created?
While the issue may be thus simply stated, its resolution requires considerations of some conflicting and complex issues, the exact counterpart of which do not appear to have been considered in any previous Illinois decisions on home rule. However, while previous cases may not be controlling, they are a helpful guide in delineating fundamental public policy considerations which underlie the home rule provisions found in article VII, section 6(a) of the Illinois Constitution of 1970. The point of departure from previous concepts of the powers of municipal corporations appears in section 6(a) cited above.
1 Thus, as pointed out in previous cases, the cities, by this section of the Constitution, can now do whatever they are not forbidden to do by the Constitution or the legislature, whereas formerly they could exercise only those powers specifically granted to them by the State.
By far the broadest and most inclusive power given to municipal corporations by the home rule provisions is the power to tax and it is not surprising that most of the cases which have arisen under the home rule provisions of the Constitution involve the taxing power. A review of some of the previous home rule cases may be helpful in rationalizing our decision here. Kanellos v. County of Cook (1972), 53 Ill.2d 161, one of the earlier cases decided by the supreme court under home rule provisions, involved the authority of Cook County to issue bonds, rather than a question of taxation, but it may be pertinent here because it considered a situation in which a prior restrictive statute was in conflict with the claimed home rule power to incur debt, without a referendum. In Kanellos, the county of Cook wanted to issue $10,000,000 in bonds without requiring a referendum approving such bond issue. The county claimed it had that right under section 6(a) of the Illinois Constitution of 1970. Kanellos, a taxpayer, contended the county's resolution authorizing the $10,000,000 was invalid as conflicting with section 40 of the counties act (Ill. Rev. Stat. 1969, ch. 34, par. 306), which required a referendum for the issuance of such bonds. The court held that the home rule provisions superceded the counties act and while the legislature, under the constitution retained the right to require a referendum if a three-fifths majority of the members so voted, the legislature had not so voted in this case and in the absence of such ...