dissenting:
The majority concludes that the ordinances in question exceed the “pertaining to its government and affairs” limitation contained in section 6(a) of the home rule article. It bases this conclusion on its interpretation that the “pertaining to” language restricts home rule units’ sphere of power to “strictly local affairs,” which it then identifies as those subjects the regulation of which will have no effect upon any other governmental unit. With this interpretation I do not agree, and from it I respectfully dissent.
Section 6(c) of the home rule article gives priority to a municipal ordinance within its jurisdiction when it conflicts with a county ordinance. If a municipality’s home rule power were restricted by section 6(a) to subjects strictly local in nature the regulation of which would have no extrajurisdictional effect, then the 6(c) priority section would be unnecessary. By including section 6(c), the drafters of the local government article realized that a subject within the ambit of both a county’s and municipality’s home rule concern might be validly regulated by both units and where regulatory conflict arose section 6(c) was intended as an answer.
A broader reading of the limitations of section 6(a) is also supported by section 6(i) which allows a home rule unit to share concurrent power over a subject with the State so long as there has been no State preemption1 and the subject matter pertains to that home rule unit’s government and affairs and not to problems particular to the State or nation. (7 Record of Proceedings, Sixth Illinois Constitutional Convention (Local Government Report) 1621.) Finally, section 6(m) states:
“Powers and functions of home rule units shall be construed liberally.”
Thus, the majority’s analysis that the only subjects upon which a home rule unit may exercise its power are those strictly local problems the regulation of which will have no effect upon any other governmental unit is contradicted by the structure of the entire home rule section.
The question in this case then is do the ordinances regulate a subject which relates to the government and affairs of Highland Park, peripheral effect on other governmental units notwithstanding.
It is, in my mind, difficult to conceive of a subject which more pertains to Highland Park’s government and affairs than the regulation of the construction and for maintenance of a county road which passes through its borders. City planning would effectively be burdened if such regulation were not allowed. Quiet, residential streets could at the unfettered discretion of the county home rule unit be transformed into major thoroughfares, thus causing unnecessary depreciation to property values and possibly creating unintended safety hazards to Highland Park residents.
The majority acknowledges that there are no Illinois cases which confront an attempt by a municipality to block a county highway from passage through its corporate borders. The majority does, however, cite two Ohio cases, City of Lakewood v. Thormeyer, 171 Ohio St. 135, 168 N.E.2d 289 (1960), and State v. Allen, 158 Ohio St. 168,107 N.E.2d 345 (1952), which the opinion concludes dispose of the issue. In addition to the fact that these cases are out-of-state authority which carry little, if any, weight in interpreting our own home rule provisions,2 these cases are distinguishable.
Municipal consent for the Ohio Turnpike was at issue in Allen while municipal consent for an interstate, or Federal aid primary highway was at issue in Thormeyer. These roads were of more statewide and national concern than the county road in the instant case.
In City of Chicago v. Pollution Control Board, 59 Ill. 2d 484 (1974), the supreme court rejected an argument by the Illinois Pollution Control Board and the Illinois Environmental Protection Agency that environmental and pollution matters did not pertain to the government and affairs of home rule units. 59 Ill. 2d 484, 486-89.
If pollution, with its extraterritorial effect and its comprehensive regulation by the State, may additionally be regulated at the municipal level, then the construction and maintenance of county roads within a municipality should likewise be subject to municipal regulation. As to the legal issue involved in this case I would uphold these ordinances.
Preemption is not an issue in this case for the Illinois Highway Code was enacted prior to and not in anticipation of the 1970 Illinois Constitution. See, e.g., Peters v. City of Springfield, 57 Ill. 2d 142,147-49 (1974), and Kanellos v. Cook County, 53 Ill. 2d 161,166-67 (1972).
See Baum, A Tentative Survey of Illinois Home Rule (Part I): Power and Limitations, 1972 U Ill. L. F. 137, 157.