Appeal from the Circuit Court of Jackson County, the Hon.
Richard E. Richman, Judge, presiding.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
On March 18, 1982, the city of Carbondale filed several petitions for condemnation in the circuit court of Jackson County. Defendants Mary Lou Atwood and Atwood Drugs, Inc., filed a motion to dismiss and traverse asserting that the city of Carbondale lacked legislative authority to acquire the premises sought to be taken under sections 11-74.3-4 and 11-74.4-3 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, pars. 11-74.3-4, 11-74.4-3). Defendant Yehling and other defendants alleged that ordinances 81-105 and 82-06 were void since they constituted an improper use of home rule authority, were not authorized by State law, and were unconstitutional under both the United States and Illinois constitutions.
On May 18, the city of Carbondale moved to amend its petitions to delete reference to and reliance upon sections 11-74.3-4 and 11-74.4-3 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, pars. 11-74.3-4, 11-74.4-3). The motion was allowed.
The ordinances passed by the city of Carbondale are similar to the Eminent Domain Act (Ill. Rev. Stat. 1979, ch. 47, par. 1 et seq.) and division 74.4 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 11-74.4-1 et seq.).
Motions to dismiss were filed in all cases. On June 15, 1982, the trial court granted the motions to dismiss the petitions in the eight cases before it. On June 25, 1982, the circuit court issued an amended order reaffirming the dismissals, executed a certificate of importance, and certified the following question:
"Does a Home Rule Municipality have the authority under article VII, section 6 of the 1970 Illinois Constitution to enact and enforce an ordinance giving said municipality the right to acquire real property by eminent domain?"
On August 9, 1982, this court granted the city's motion for a direct appeal under Rule 302(b) (73 Ill.2d R. 302(b)).
The city of Carbondale, in enacting its eminent domain ordinances, sets forth procedures to exercise eminent domain powers within the city limits of Carbondale for the purpose of redevelopment of the business district.
We first look to the constitutional grant of home rule authority in article VII, section 6(a), of the 1970 Constitution, which provides:
"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 debts." Ill. Const. 1970, art. VII, sec. 6(a).
Home rule units were granted broad powers of self-government, and the constitution mandates that such home rule powers be construed liberally. Ill. Const. 1970, art. VII, sec. 6(m).
This court has recognized that the Constitution's home rule provisions represent a significant change from our prior law, substantially and drastically altering the relationship between State and local government. (Kanellos v. County of Cook (1972), 53 Ill.2d 161.) At the heart of the change is the Constitution's rejection of Dillon's Rule, which had held that units of local government could exercise only those powers expressly granted by State statute or necessarily and fairly implied from the legislature's expressed grants. (1 J. Dillon, Municipal Corporations 448-49 (5th ed. 1911).) In Kanellos v. County of Cook (1972), 53 Ill.2d 161, 166, the court said that "the power of the General Assembly to limit the actions of home-rule units has been circumscribed and home-rule units have been constitutionally delegated greater autonomy in the determination of their government and affairs. To accomplish this independence, the constitution conferred substantial powers upon home-rule units subject only to those restrictions imposed or authorized therein."
The question we are faced with then is twofold: (1) Does the subject matter pertain to the city's government and affairs? and if so, (2) Is the ordinance preempted by State regulation of the subject matter? *fn1
Does the exercise of the home rule unit's eminent domain power to condemn private property within the city of Carbondale for public use pertain ...