The opinion
MR. JUSTICE RYAN, dissenting:
I cannot agree with the opinion of the court. The opinion sets forth the provisions of the 1970 constitution which must be considered in this case. Section 4(c) of article VII requires that each county elect a county clerk and provides that the office may be eliminated only by a county-wide referendum. Section 4(d) of article VII pertains to the duties of county officers and provides: “County officers shall have those duties, powers and functions provided by law and those provided by county ordinance. County officers shall have the duties, powers or functions derived from common law or historical precedent unless altered by law or county ordinance.” (Emphasis added.) I interpret this section to mean that if the duties, powers and functions of the county officer are those derived from statutory authority they cannot be taken away or altered by county ordinance, but the county may by ordinance give to the county officer additional duties, powers and functions. On the other hand, if the duties, powers or functions of the county officer are derived not from statutory authority but from common law or historical precedent, then such duties, powers or functions may be altered by either an act of the General Assembly or by a county ordinance.
The duties of which the county clerk of Cook County is divested by the county ordinance in question are statutory in origin and as the majority opinion indicates have been part of the statutory duties of that office since 1887. Section 9 of the transition schedule of the 1970 constitution provides: “All laws *** not contrary to, or inconsistent with, the provisions of this Constitution shall remain in force, until they shall expire by their own limitation or shall be altered or repealed pursuant to this Constitution.” The opinion of the court does not find that the statutory duties of the county clerk which are here in question are contrary to or inconsistent with the provisions of the constitution and I find them not to be. Therefore, the statute conferring the duties, powers and functions upon the county clerk of Cook County remains in effect until repealed by the General Assembly.
The opinion of the court relies on our decision in Kanellos v. County of Cook, 53 Ill. 2d 161 , as authority for the proposition that a home-rule county may adopt an ordinance pursuant to its home-rule authority and thereby “supersede a statute antedating the present constitution.” Kanellos has no application to this case because we there specifically found that the provisions of the statute which we held to have been superseded were inconsistent with the provisions of the constitution of 1970 and thus were not preserved by section 9 of the transition schedule. ( 53 Ill.2d at 166-167 .) The opinion of the court makes no such finding with regard to the statute conferring the functions in question on the county clerk of Cook County.
I agree that the 1970 constitution conferred substantially greater autonomy upon home-rule units than units of local government had previously enjoyed under the 1870 constitution. However, the exercise of the home-rule powers cannot be contrary to the other provisions of the constitution. Section 4(d) provides that the county offleers shall have the duties, powers and functions provided by law. In my opinion, the law conferring these duties, powers and functions upon county officers remains in effect until repealed by the General Assembly unless it has not been preserved by the provisions of section 9 of the transition schedule. Since the constitution provides that the county officers shall have these powers, duties and functions, the officers cannot be divested of them by a county ordinance.
For these reasons, I would hold that the county ordinance of Cook County is invalid.