dissenting:
In my opinion the doctrine of res judicata does not apply in this case. The previous decision of this court (48 Ill.2d 11) was rendered in a case which involved the question of the authority of the respective parties to exercise the power each possessed by virtue of statutes which were enacted under the 1870 Constitution. The decision in that case was a final adjudication of the issues then existing. Since that decision the 1970 Constitution has become effective. Under the new constitution the City of Des Plaines is a home-rule unit of local government. The authority of the City of Des Plaines to enact ordinances concerning its government and affairs now stems from section 6(a) of article VII of the 1970 Constitution and not from the statute. The issue in the previous case was whether the city in exercising authority granted by the statute would prevail over the defendant Sanitary District also exercising authority granted by statute. The issue now is whether the city exercising authority derived from the Constitution can prevail over the Sanitary District exercising authority derived from the statute. Since the statutory authority upon which the Sanitary District relies stems from a statute enacted prior to the effective date of the 1970 Constitution, we have decidedly different issues involved in this case from those that were decided in the prior case.
This court has held on several occasions that a statute enacted prior to the effective date of the 1970 Constitution cannot prevail against the authority of a home-rule unit derived from the 1970 Constitution. (Kanellos v. County of Cook, 53 Ill.2d 161; People ex rel. Hanrahan v. Beck, 54 Ill.2d 561; Peters v. City of Springfield, 57 Ill.2d 142.) These decisions of this court have been urged by the plaintiff as support for its position that the Sanitary District exercising authority derived from a pre-1970 Constitution statute cannot prevail against the zoning authority of a home-rule unit. The majority opinion, instead of resolving the vital issue of this case which was created by the previous decisions of this court, simply states that it is irrelevant whether the plaintiff’s power to enact the zoning ordinance stems from the statute or from the home-rule section of the Constitution.
It is obvious that the issue vital to the determination of this case was not litigated nor could it have been litigated in the previous litigation between these parties. Therefore that decision will not operate as a bar to this action. (City of Elmhurst v. Kegerreis, 392 Ill. 195.) While the previous judgment of this court was a final adjudication as to the issues that existed at that time, it cannot be considered final as to the issue which did not then exist which has been raised in this case. Generally a change in the law brought about by statute or by judicial decision subsequent to the former adjudication destroys the controlling effect of that judgment on subsequent litigation. C. O. Baptista Films v. Cummins, 9 Ill.2d 259; Hagen v. Hagen (1965), 205 Va. 791, 139 S.E.2d 821; Smith v. Campbell (Ky. App. 1955), 286 S.W.2d 532; State ex rel. McGee v. Wilson (1949), 358 Mo. 1244, 220 S.W.2d 6; Harper v. City Council of Augusta (1956), 212 Ga. 605, 94 S.E.2d 690; 2 A. Freeman, Treatise of the Law of Judgments sec. 713, at 1505 (5th ed. 1925); 50 C.J.S. Judgments sec. 650 (1947); 46 Am. Jur. 2d Judgments sec. 444 (1969).
I am of the opinion that the granting of home-rule powers to the plaintiff by the 1970 Constitution and the previous decisions of this court interpreting the effect on home-rule powers of statutes antedating the 1970 Constitution have created an issue that is essential to the decision of this case which was not and could not have been decided in the previous litigation between these parties. Therefore, the doctrine of res judicata is not applicable and the judgment of the appellate court should be affirmed.