dissenting:
In my opinion the majority fails in its effort to sustain the constitutionality of the last sentence of section 11—74—13 which provides that the Act “does not apply to any municipality which is a home rule unit.” (Ill. Rev. Stat. 1971, ch. 24, par. 11—74—13.) And because this provision can not be characterized as severable, it follows, in my opinion, that the entire Act is invalid.
The sentence in question forbids home-rule municipalities to exercise a power that the legislature has granted to all other municipalities. The majority first justifies this discrimination on the ground that the line which is drawn between home-rule municipalities and other municipalities is reasonably related to the purpose of the Act. The necessary relationship is said to exist because: “The type of financing contemplated by the Act may well provide a means for small and struggling communities to attract economic development”, and also because “in those communities which presently are rural in character and lack economic development, the first step toward providing employment and growth is most apt to be found in establishing an industrial base from which service and commercial enterprises may follow.”
This first justification rests upon two assumptions: (1) that the purpose of the Act is to attract industrial development to the more rural areas of the State, and (2) that whether a city or village is a home-rule municipality is determined by its population. Neither assumption is true. The General Assembly stated that the purpose of the Act is “to relieve conditions of unemployment, to aid in the rehabilitation of returning veterans, and to encourage the increase of industry within this State, thereby reducing the evils attendant upon unemployment.” (Par. 11—74—3.) There is no suggestion of any legislative purpose to attract industry to “those communities which presently are rural in character and lack economic development,” or to “provide a means for small and struggling communities to attract economic development.” The further assumption that the line between home-rule and non-home-rule municipalities depends upon population is also unfounded. The constitution provides (art. VII, secs. 6(a), (b)) that any city, village or incorporated town, regardless of its population, may determine for itself, by referendum, whether or not it will be a home-rule unit.
This statute interferes with the freedom of choice that the constitution has given by saying to the people of a municipality, “You may have the power granted by this act only if you give up your status as a home-rule unit”, or conversely, “If you become a home-rule unit you must give up the power granted by this act.” In my opinion the legislature lacks the authority to interfere with the freedom of choice granted by the constitution by imposing conditions of this kind.
Finally, the opinion seems to say that the limitation stated in section 11—74—13 is meaningless, and therefore does not affect the validity of the Act. I can not agree that a home-rule unit, solely by virtue of its home-rule status, has the power granted to other municipalities by this statute to purchase land up to ten miles outside its limits, or that the making of such a purchase is not the exercise of a governmental power or function.
To support the existence of such a power the majority relies upon two decisions of this court. In one of these, Illinois Power Co. v. City of Jacksonville (1960), 18 Ill.2d 618, the power in question had been specifically granted by the legislature. In the other, City of Champaign v. Harmon (1881), 98 Ill. 491, the only thing the court said with reference to the power of a municipality to purchase land outside its boundaries was this: “Under a general grant of power to buy and hold real property, it is understood municipal corporations may buy and hold such property, within the corporate limits, as may be necessary for corporate purposes, and may even buy and hold real estate beyond the corporate limits, for the location of cemeteries, pest houses, and other purposes connected with the sanitary condition of the municipality.” 98 Ill. at 494-5.
In addition to those two decisions of this court, the majority relies upon a distinction which it draws as to the kind of authority that may be exercised by a municipality over property which it owns outside its boundaries. To support this distinction the opinion relies upon a Tennessee decision. That case involved an express legislative grant of authority to the city of Chattanooga to acquire land outside its corporate limits for an airport. The statement relied upon by the majority was concerned with land lying beyond the borders of the State of Tennessee, and not with land beyond the city limits. (See McLaughlin v. City of Chattanooga (1944), 180 Tenn. 638, 643, 177 S.W.2d 823, 825.) The authority which the Illinois General Assembly has granted to all Illinois municipalities is expressed in the following statute:
“All property which (1) is owned by a municipality, and (2) lies outside the corporate limits of the municipality, and (3) does not lie within the corporate limits of any municipality, shall be subject to the ordinances, control, and jurisdiction of the municipality in all respects the same as the property owned by the municipality which lies within the corporate limits thereof.” Ill. Rev. Stat. 1971, ch. 24, par. 7-4-2.
More serious than the majority’s mistake as to the nature of the power that the General Assembly has granted to municipalities over property which they own outside of their limits, is the mistake that is made with respect to the constitutional power of a home-rule municipality to acquire land beyond its borders without legislative authority.
The proceedings of the Constitutional Convention make it quite clear that it was not intended that the home-rule article should grant that authority. The majority proposal of the Local Government Committee was as follows:
“3.1(a) Any county which has a chief executive officer elected by the voters of the county and any municipality which has a population of more than 20,000 may, within its corporate limits, exercise any power and perform any function pertaining to its government and affairs ***.” (Emphasis added.) 7 Record of Proceedings, Sixth Illinois Constitutional Convention 1599 [hereinafter cited as Proceedings].
The minority of the committee would have substituted the following for the majority proposal:
“Section 3.1(a) Any city, village, and incorporated town may, within its corporate limits, exercise any power and perform any function pertaining to its government affairs ***.” (Emphasis added.) 7 Proceedings 1866.
During the debates Delegate Elward stated that as he read the proposal the legislature would have no authority to grant home-rule municipalities any extraterritorial power. He said:
“Well, may I respectfully suggest that in the absence of constitutional backing for the existing statutory authority, any attempt by the General Assembly to pass a statute giving municipalities power outside the boundaries of the municipality would be open to serious and, I think, substantial constitutional attack.” 4 Proceedings 3040.
Both the chairman and the vice-chairman of the Local Government Committee stated that there was nothing in either proposal to prevent the General Assembly from granting additional powers. Chairman Parkhurst stated:
“The powers granted in section 3 are not powers that come by way of statute. It is not — these are autonomous powers that home rule units can exercise within their corporate limits without regard to statutory enablement, point 1.
Point 2, there is nothing in this article that in any way prevents the legislature from granting additional powers to any unit of local government other than the powers that are granted constitutionally.” 4 Proceedings 3040.
Vice-Chairman Carey stated:
“There is nothing to prevent the General Assembly from acting outside the city limits of any municipality, either in this or the minority report, and the reason being that the powers we seek are within the city limits. And I don’t think that there’s any doubt but what the General Assembly now has and will continue to have — without putting it into the constitution — the right to legislate for extra-territorial powers.” 4 Proceedings 3040.
Mr. Elward had not argued that the constitution should give home-rule units power over territory outside their boundaries. Rather, he had argued that the language proposed would prevent the legislature from giving home-rule units extraterritorial power. (4 Proceedings at 3040-41.) This is clearly shown by the amendment he and Delegate Gertz proposed:
“3.1(a) Any county which has a chief executive officer elected by the voters of the county and any municipality which has a population of more than 20,000 may, within its corporate limits and such additional areas as have been or shall be provided by law, exercise any power and perform any function pertaining to its government and affairs ***.” (The amendment would have added the italicized words.) 4 Proceedings 3072.
This amendment did not purport to give any additional powers to home-rule units but merely to preserve the authority of the legislature to grant extraterritorial power to them, as Delegate Elward clearly stated:
“All the amendment before you does is say that the counties and the cities can have this home rule power, not only within their corporate limits, but in such additional areas as in the past the General Assembly has given them the power or as the General Assembly may give them the power in the future.” 4 Proceedings 3074.
The amendment was defeated, but the proceedings of the Convention show that both its proponents and its opponents were in complete agreement that the extraterritorial powers of home-rule municipalities were to be derived from the legislature and not from the constitution.
By section 6(a) of article VII of the constitution, a home-rule unit “may exercise any power and perform any function pertaining to its government and affairs ***.” In my opinion the purposes of this Act — “to relieve conditions of unemployment, to aid in the rehabilitation of returning veterans, and to encourage the increase of industry within this State” — are matters that pertain to “the government and affairs” of the State. They become matters that pertain to the government and affairs of a municipality, whether home-rule or not, only pursuant to a delegation of authority from the General Assembly.