City of Urbana v. Houser

367 N.E.2d 692, 67 Ill. 2d 268, 10 Ill. Dec. 239, 1977 Ill. LEXIS 323
CourtIllinois Supreme Court
DecidedJune 1, 1977
Docket48793
StatusPublished
Cited by35 cases

This text of 367 N.E.2d 692 (City of Urbana v. Houser) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Urbana v. Houser, 367 N.E.2d 692, 67 Ill. 2d 268, 10 Ill. Dec. 239, 1977 Ill. LEXIS 323 (Ill. 1977).

Opinion

MR. JUSTICE DOOLEY

delivered the opinion of the court:

In 1976 the city of Urbana, a home rule municipality within the meaning of section 6, article VII, of the Constitution of 1970, filed a complaint for a demolition. It alleged a structure within the municipal limits was so dangerous and unsafe that the condition could not be eliminated by repair and that the building official of the city had declared the structure dangerous within the meaning of section 11 — 31—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 11—31—1).

A motion to dismiss was made. It urged a want of authority by the city to maintain the action, since the demolition statute was amended in 1971, and contained this final sentence: “This amendatory Act of 1971 does not apply within the jurisdiction of any home rule unit” (Ill. Rev. Stat. 1971, ch. 24, par. 11—31—1). The circuit court dismissed the action on the ground the city lacked authority to conduct demolition proceedings.

According to the circuit court, the statute on which the demolition proceeding was predicated was prohibited to home rule municipalities because of the sentence set forth in the 1971 amendment. To empower itself, an ordinance would be necessary.

From this order of the circuit court, an appeal was taken to the appellate court. It was transferred to this court pursuant to Rule 302(b) (58 Ill. 2d R. 302(b)). Does a home rule unit lack the demolition authority conferred on it by statute prior to the 1970 Constitution because that statute was amended with a sentence that “[tjhis amendatory Act of 1971 does not apply within the jurisdiction of any home rule unit”? That is the question before us.

The statute upon which the action was based (Ill. Rev. Stat. 1971, ch. 24, par. 11—31—1) is substantially a restatement of a 1953 statute (Ill. Rev. Stat. 1953, ch. 24, par. 23—70.2). In general it authorizes each municipality to “demolish, repair or cause the demolition or repair of dangerous and unsafe buildings *** within the territory of any such municipality.” (Ill. Rev. Stat. 1971, ch. 24, par. 11—31—1.) It provides for an expedited hearing by the circuit court and the creation of a lien for demolition costs. In 1971 this statute was amended to provide that a county board with a statutory health department may demolish any dangerous and unsafe buildings within the territory of any city or village or incorporated town having less than 50,000 population.

It is this sentence of the 1971 amendment which is the basis of this litigation: “This amendatory Act of 1971 does not apply within the jurisdiction of any home rule unit.” (Ill. Rev. Stat. 1971, ch. 24, par. 11—31—1.) Prior to the 1970 Constitution, municipalities had demolition powers based on a statute. (See section 11—31—1 of the Illinois Municipal Code, Ill. Rev. Stat. 1965, ch. 24, par. 11—31—1, and City of Chicago v. Birnbaum (1971), 49 Ill. 2d 250, 253.) This statute was first enacted in 1953. Under the 1971 amendatory act (Ill. Rev. Stat. 1971, ch. 24, par. 11—31—1), as construed by the circuit court, demolition powers would be accorded non-home-rule units but denied home rule units.

We do not believe this 1971 amendment can be construed as amending the statute so as to deny a home rule unit powers given it by the Constitution of 1970.

Article VII, section 6(a), of the 1970 Constitution provides the extent of the powers conferred on home rule units:

“*** 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 debt.”

It has been noted that the terms of this grant of powers were purposely left without definition so that they might be broad. Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 539; Thorpe, An Analysis of Anticipated Problems Under the New Home Rule Article of the Illinois Constitution, 50 Ill. Mun. Rev. 4 (1971); 4 Record of Proceedings, Sixth Illinois Constitutional Convention 3056.

Their character is further spelled out by article VII, section 6(i), of the 1970 Constitution, which provides:

“Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State’s exercise to be exclusive.”

Home rule units thus have the same powers as the sovereign except where such powers are limited by the General Assembly. This, together with other provisions of the Constitution, defines the new relationship which now exists between local and State government. In the past, local governmental units had only those powers which were authorized, either expressly or impliedly, by the grant of authority of the legislature. Now home rule units, under the 1970 Constitution, have an autonomy and independence limited only by restrictions imposed by the Constitution or authorized by it. Kanellos v. County of Cook (1972), 53 Ill. 2d 161, 166.

More than that, if that were not enough, article VII, section 6(m), of the Constitution of 1970 states: “Powers and functions of home rule units shall be construed liberally. ” It requires no strong prisms to see the breadth and depth of the powers of home rule units.

The legislature has employed several versions of the so-called “typical home rule amendment.” Consider these samples: “The amendatory Acts *** are not a limit upon any municipality which is a home rule unit” (Ill. Rev. Stat. 1975, ch. 24, pars. 8—4—3, 8—7—2); “This amendatory Act *** does not apply to any [city or village] [municipality] which is a home rule unit” (Ill. Rev. Stat. 1975, ch. 1081/2, par. 22—306, ch. 24, pars. 3—13—5, 3—13—6, ch. 24, par. 3— 4—6.1); “This Act is not a limit upon any home rule unit” (Ill. Rev. Stat. 1975, ch. 85, par. 1781, ch. 111 2/3, par. 705.02); “The provisions of this Section are not a limitation on the powers of a home rule municipality” (Ill. Rev. Stat. 1975, ch. 24, par. 8—1—17).

It can hardly be intended, in view of the constitutional grants and the conduct of the legislature, that it was the legislative intent that this amendatory act, which merely extended the power of demolition to counties in certain instances, was to be a limitation upon home rule units within those counties. In this respect, it is worthy of note that the legislature did not amend the companion section of the statute under consideration, namely, section 11 — 31—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 11—31—2), providing authority for municipalities to petition the court for injunction to require the owner of property to conform with the minimum health and safety ordinances applicable to buildings.

As if that were not enough, however, the construction given the statute by the circuit court would create an unreasonable classification. Non-home-rule units would have the power of demolition as municipalities have had since the 1953 statute (Ill. Rev. Stat. 1953, ch. 24, par.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

LMP Services, Inc v. The City of Chicago
2017 IL App (1st) 163390 (Appellate Court of Illinois, 2017)
People v. Williams
910 N.E.2d 1272 (Appellate Court of Illinois, 2009)
Village of Schaumburg v. Doyle
661 N.E.2d 496 (Appellate Court of Illinois, 1996)
City of Elgin v. County of Cook
660 N.E.2d 875 (Illinois Supreme Court, 1995)
Town of Northville v. Village of Sheridan
655 N.E.2d 22 (Appellate Court of Illinois, 1995)
Jahn v. Troy Fire Protection District
627 N.E.2d 1216 (Appellate Court of Illinois, 1994)
American Telephone & Telegraph Co. v. Village of Arlington Heights
620 N.E.2d 1040 (Illinois Supreme Court, 1993)
Beneficial Development Corp. v. City of Highland Park
606 N.E.2d 837 (Appellate Court of Illinois, 1992)
Patrick Media Group, Inc. v. Ad-Ex, Inc.
608 N.E.2d 427 (Appellate Court of Illinois, 1992)
Town of Normal v. Seven Kegs, Two Tappers and Two Barrels
599 N.E.2d 1384 (Appellate Court of Illinois, 1992)
La Salle National Bank v. Harris Trust & Savings Bank
581 N.E.2d 363 (Appellate Court of Illinois, 1991)
Village of Sauget v. Pollution Control Board
566 N.E.2d 724 (Appellate Court of Illinois, 1990)
Triple a Services, Inc. v. Rice
545 N.E.2d 706 (Illinois Supreme Court, 1989)
Landmarks Preservation Council v. City of Chicago
531 N.E.2d 9 (Illinois Supreme Court, 1988)
Wellington v. City of Chicago
494 N.E.2d 603 (Appellate Court of Illinois, 1986)
People Ex Rel. Bernardi v. City of Highland Park
482 N.E.2d 114 (Appellate Court of Illinois, 1985)
Royal Liquor Mart, Inc. v. City of Rockford
479 N.E.2d 485 (Appellate Court of Illinois, 1985)
Clayton v. Village of Oak Park
453 N.E.2d 937 (Appellate Court of Illinois, 1983)
Isberian v. Village of Gurnee
452 N.E.2d 10 (Appellate Court of Illinois, 1983)
Board of Trustees v. Mathias
441 N.E.2d 362 (Appellate Court of Illinois, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
367 N.E.2d 692, 67 Ill. 2d 268, 10 Ill. Dec. 239, 1977 Ill. LEXIS 323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-urbana-v-houser-ill-1977.