joins, dissenting:
Mr. Justice Davis and I do not agree with the basic approach that is expressed in the majority opinion with respect to the relationship between a home-rule county and the municipalities located in such a county. The problems inherent in the relationship are particularly acute where, as in this case, home-rule municipalities are involved. These problems were foreseen and a solution was provided in section 6(c) of article VII:
“(c) If a home rule county ordinance conflicts with an ordinance of a municipality, the municipal ordinance shall prevail within its jurisdiction.”
The majority acknowledges “the intention of the constitutional convention to establish the preference for municipal authority over home-rule county authority” but then asserts its own limitation of that preference to “certain situations.” Just what these situations may be is not stated, but one of them is apparently the case of a taxing ordinance. The difficulty with such a limitation is that the constitution has granted the power “to tax” to home-rule units in exactly the same terms in which it granted all other home-rule powers: “to regulate ***; to license; to tax; and to incur debt.” (Art. VII, sec. 6(a).) Nothing in the constitution or in the proceedings of the constitutional convention suggests that county taxing ordinances are exempt from section 6(c), or that the authority of the General Assembly was relied upon to protect against possible abuses by county taxing ordinances.
Nor do we agree that the constitutional “preference only establishes a means of resolving conflicts and inconsistencies existing between a municipal ordinance and a home-rule county ordinance ***.” That is not the way the preference is stated in the constitution or the way it was understood by the constitutional convention. Upon this question the Report of the Committee on Local Government to the Constitutional Convention stated: (Paragraph 3.3 is the provision which ultimately emerged as section 6(c).)
“Paragraph 3.3 — County Home-Rule Powers Within Municipal Boundaries.
1. Discussion
The problem. County home-rule powers granted by paragraph 3.1(a) embrace the entire county, including areas within municipal boundaries. In many cases, the extension of county authority into municipal territories will be beneficial and fully acceptable to city officials. An example is the operation of a county hospital and county health services for all residents of the county, including city dwellers. In other cases, however, city officials may object to the assertion of county authority within municipal boundaries and there may be differences or actual conflicts and inconsistencies between municipal legislation and county legislation. Some provision must be made to resolve these potential disagreements and conflicts.
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The Solution: municipal authority prevails over county home-rule. In paragraph 3.3 the committee proposes that municipal ordinances should prevail, within municipal boundaries, over conflicting assertions of county home-rule powers. The preference thereby given to municipal legislation is based upon practical and historical grounds. At this point in the development of local government in Illinois, municipalities are by far the most important form of general-function local government units. Counties are relatively weak, less organized and limited in authority. Although one purpose of this Article is to strengthen county government so that it will become a useful adjunct, and in some cases even a useful alternative to municipal government, we do not believe that the Constitution should permit home rule counties to unilaterally assume the functions and powers of municipalities which lie within the county’s borders. Such substantial transfers of authority from one set of local governments to another should be made only in the most careful manner under the auspices of the chief political institution of the state — the General Assembly.” 7 Proceedings 1646-48.
The same explanation of section 3.3 was given by the chairman of the Local Government Committee in response to questions from delegates:
“Mr. Thompson: *** Is there any difference in the relationship between a municipality with home rule and a county with and a county without home rule?
Mr. Parkhurst: None whatsoever where the municipality within a county passes an ordinance. None whatsoever.
Mr. Thompson: If you can guarantee that, I am satisfied.
Mr. Parkhurst: Guarantees are hard to make, but that certainly is the intent, and the record is clear, and that’s what 3.3 intends to say.
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Mr. Tecson: *** Can you be more specific and explain how this relates, for example, to the unincorporated area of Cook County, as it stands now with some 300 square miles, in the light of some of the questions that have been asked by the other questioners?
Mr. Parkhurst: All right. Let’s get off zoning for a minute and pick another example which I think might clarify. Under the home rule grant, suppose Cook County — as I believe it automatically would have-exercises a home rule power; suppose it licenses Fuller Brush men throughout the county. Now the present statute, we’ll assume, does not permit Cook County to license Fuller Brush men; but under home rule where they have the power to license, they can license Fuller Brush men, regulate their activities, and say they can’t make more than eighteen stops a day, and they have to be college graduates, and so on and so forth.
Now, what 3.3 says is that when Cook County exercises that power to license Fuller Brush men, if the statute says that municipalities can also license Fuller Brush men, and the municipality does, the licensing provision of the municipality controls within the boundaries of the municipality. No extraterritorial problems here. The licensing provision of the municipality preempts or supercedes [sic] the county wide licensing provision—or ordinance—passed pursuant to home rule powers. Does that help? That’.s what this is intended to do, and I think does, clearly.
So it has no effect in the unincorporated areas. The county can still exercise all the home rule it can think of in the unincorporated areas of Cook County or any other county. What this says is that the county can exercise home rule powers countywide; but if a municipal ordinance, as provided by law, within that county does the same thing, the municipal ordinance prevails.” (Emphasis supplied.) 4 Proceedings 3123.
From the explanations that were put before the convention by the Local Government Committee and its chairman, we think it apparent that the word “conflicts” in section 6(c) was not intended to be limited to contradictions or inconsistencies between county and municipal ordinances. As the report of the committee pointed out, it also includes those cases in which “the extension of county authority into municipal territories” will not be “fully acceptable to city officials,” — those cases in which “city officials may object to the assertion of county authority within municipal boundaries.” And as the chairman of the committee emphatically stated, “where the municipality within a county passes an ordinance,” the authority of a home rule county is no different from that of any other county. The municipal ordinance prevails if it occupies the same ground — “does the same thing” — as the county ordinance.
A realistic consideration of the dual regulatory system that the contrary view would impose upon those who live in cities and villages located within home-rule counties make this conclusion, in our opinion, imperative. The majority view would require everyone who intends to construct a new building or alter an existing one within the boundaries of a municipality located in Cook County to obtain a permit from Cook County as well as from his own municipality, and to pay a fee to each governmental unit. The fact that the regulations of the county and the municipality are the same, so that there are no “contradictions” or “inconsistencies” between the two ordinances, does not justify the imposition of a meaningless burden. Examples could be multiplied. It is no answer to say that the home-rule county may not choose to regulate or to license. The question is one of power, not discretion.
So far as the power to tax is concerned, the adverse economic effect of sales taxes upon businesses located within the governmental unit which levies them has long
been recognized. That is why we have use taxes. And that is why, when the General Assembly in 1959 authorized counties to levy a retailers’ occupation tax, the power to tax was limited to the unincorporated areas in the county. (Ill. Rev. Stat. 1959, ch. 34, par. 409.1.) That limitation is today expressed in the following language:
“Provided, all persons engaged in the business of selling tangible personal property at retail in a municipality shall not be subject to the tax levied by the county board of such county as authorized by this Section with respect to sales made by such persons in the course of so engaging in business in such municipality.” Ill. Rev. Stat. 1971, ch. 34, par. 409.1.
The principal difference between the county tax involved in the present case and the county retailers’ occupation tax is that the present tax is levied at a flat rate for each class of vehicle sold, instead of at a percentage of the sale price. Its economic effect is no different than that of the familiar combined occupation and use tax that was evolved to circumvent the dictum that had long been thought to limit the permissible methods of taxation under the constitution of 1870. See Turner v. Wright (1957), 11 Ill. 2d 161, 164.
In our opinion one of the purposes of section 6(c) was to prevent a home-rule county from putting municipalities to the choice of forgoing necessary revenue on the one hand, or imposing an economic disadvantage upon businesses located within their borders on the other. The recognition of authority in a home-rule county to levy a tax of this kind upon transactions which take place in the unincorporated areas of the county will fully meet the needs of the county without adversely affecting the power of home-rule municipalities to raise necessary funds.