Bradley v. Casey

• Decision Date: 24 September 1953
• Docket Number: No. 32804,32804
• Citation: 415 Ill. 576,114 N.E.2d 681
• Parties: , 24 Lab.Cas. P 67,844 BRADLEY v. CASEY et al.
• Court: Illinois Supreme Court

Page 681

114 N.E.2d 681

415 Ill. 576, 24 Lab.Cas. P 67,844

BRADLEY v. CASEY et al.

No. 32804.

Supreme Court of Illinois.

Sept. 24, 1953.

Hoffman & Hoffman, Springfield, for appellant.

Latham Castle, Atty. Gen., William C. Wines, Raymond S. Sarnow and A. Zola Groves, Chicago, of counsel, for appellees.

MAXWELL, Justice.

This is an appeal from the circuit court of Sangamon County involving the Prevailing Wage Act of this State. Appellant filed his petition seeking to enjoin the Director of Public Works and Buildings the Chief Highway Engineer, the Director of Finance, the Auditor and the Treasurer of the State of Illinois, and also Sangamon County, its superintendent of highways, county clerk, and treasurer, from making contracts and disbursing funds under said act. Appellant's petition for leave to file his injunction suit was granted upon a hearing wherein the trial court found reasonable grounds existed for filing the suit. Appellant, hereinafter referred to as petitioner, based his right to sue upon the facts that he is a citizen and taxpayer of this State, having paid all realty taxes assessed against real estate he owns, all license taxes under the Motor Vehicle Act, and all taxes for gasoline purchased under the Motor Fuel Tax Act. The complaint, in substance, attacked the constitutionality of the Prevailing Wage Act.

Appellees, hereinafter referred to as defendants, filed a motion to dismiss on the ground that the act in all respects is constitutional and valid. The trial court thereupon dismissed the complaint for want of equity.

Petitioner now urges in this court that the provisions of the act which purport to pertain to direct employment of employees in public works by public bodies is invalid for the reason that it is not embraced within the title of the act and, therefore, within the prohibition of section 13 of article IV of the constitution of Illinois. S.H.A. It is further contended the act is vague, indefinite and uncertain in its terms so as to amount to a delegation of legislative power in violation of due process; that the 1951 amendment defining wages under a collective bargaining agreement as the prevailing rate of wages is invalid in delegating a discretionary power to private parties and in being too restrictive and discriminatory, defining that to be a fact which is not a fact; that freedom of contract between employers and employees is denied in violation of the Federal and State constitutions; that it is arbitrary and unreasonable in requiring employment of workmen on a per diem basis; that it produces waste and illegal expenditure of public funds.

The act in question was approved by the Governor of this State, June 26, 1941, and is entitled 'An Act regulating wages of laborers, mechanics and other workmen employed under contracts for public works.' (Ill.Rev.Stat.1951, chap. 48, pars, 39s-1 to 39s-12, incl.) Sections 2, 4, 5, 6, 8, and 9 were amended in the year 1951. The act as amended is now here subjected to the constitutional attack of petitioner.

The declaration of policy of the State is set out in section 1 of the act, wherein it is declared that a wage of not less than the general prevailing rate per diem for work of a similar character in the locality in which the work is performed shall be paid to all laborers, workmen and mechanics employed by or on behalf of the State or by or on behalf of the county, city and county, city, town, township, district, or other political subdivision of the State engaged in public works, exclusive of maintenance work. Section 2 of the act defines 'public works,' 'maintenance work,' 'locality in which the work is performed', 'general prevailing rate of per diem wages', 'general prevailing rate of wages', and 'prevailing rate of wages'. This section also provides that when there is in effect a collective bargaining agreement negotiated by employer and employee covering the rates of wages for work of a similar character in a locality in which the work is to be performed, then such rates of wages shall be considered as the prevailing rate of wages in such locality. This latter provision concerning the collective bargaining agreement was added by amendment in 1951.

Section 3 provides that no less than the prevailing rate of per diem wages shall be paid to employees employed by or on behalf of the State or the other public bodies enumerated. Maintenance work is excluded from the section. This section further provides that only employees directly employed by contractors or subcontractors shall be deemed to be employed upon public works.

Section 4 makes provision for the ascertaining by the public body awarding the public works contract of the general prevailing rate of per diem wages in the locality where the work is to be performed for each craft or type of workman or mechanic needed to execute the contract or project. Said rates must then be included in the resolution or ordinance and the call for bids, and the section makes it mandatory upon the successful contractor and any subcontractor under him to pay no less than said specified rate. The public works contract must contain a stipulation of like effect.

Section 5 requires the keeping of records by the contractor and subcontractors and the public body for carrying out the purpose of the act.

Section 6 makes a violation of the act a misdemeanor and directs the Department of Labor to inquire diligently as to any violation.

Section 7 makes the finding as to prevailing wages final unless reviewed under the provisions of the act.

Section 8 provides that in the event the public body is unable to ascertain the prevailing rate of wage of any class of work required to be performed under its proposed contract, it shall be the duty of said body to state such fact in its resolution, ordinance or notice for bids, and in this event the clause specifying the prevailing wage as to such class of work may be excluded from the contract unless such wage may be determined by the court on appeal as provided for in the act.

Section 9 requires the public body to investigate and ascertain the prevailing rate of wages from time to time and to publicly post its determination. A certified copy is sent to the Secretary of State and within thirty days thereafter is published in a newspaper of general circulation in the area concerned, notifying all persons of its determination; other notices to employers, employees and other associations are provided. A time for filing objections and having a hearing is provided. Also included is a method of review under the provisions of the Administrative Review Act. An appeal thereafter to this court may then be had and these proceedings are given priority in the trial court over all other civil proceedings except election contests. The Attorney General is required to represent the public body and defend its determinations.

Section 10 contains provisions for general subpoena powers.

Section 11 permits recovery by employees of any difference between the stipulated rates and the actual wages received.

Section 12 is the usual section providing for the keeping intact of the remaining portions of the act in the event any portion thereof is declared unconstitutional. The foregoing is intended merely to furnish a brief sketch of the act without going into the detailed provisions word for word.

The first prevailing wage act enacted in 1931 was declared unconstitutional the same year in Mayhew v. Nelson, 346 Ill. 381, 178 N.E. 921. In 1939, a second prevailing wage act was passed and it was declared unconstitutional in 1940 in Reid v. Smith, 375 Ill. 147, 30 N.E.2d 908, 132 A.L.R. 1286. From the latter opinion two judges dissented. Thereafter, the 1941 act was passed in the following year. As previously stated certain amendments were added in 1951. It therefore appears that the present act, containing many changes from the former ones, is a serious declaration of the public policy by the elected representatives of the people of this State, with an evident attempt to cure the law of its former alleged evils.

The objection in respect to certain provisions embraced in the act but which are not expressed in the title was not treated in either of the aforesaid opinions. We have carefully studied the act and we believe it is a fair conclusion to state that, when the entire context of the act is considered, it appears manifest that the legislature intended the act to apply only to contractors under contracts for public works. Apparently due to human error in drafting certain provisions of the act, improper terms have been employed to the extent that the impression is reasonably given that the act applies also to direct employment by the State and other public bodies. For example, section 1 of the act refers to persons employed by or on behalf of the State, or by or on behalf of the county, city and county, city, town, township, district or other political subdivision of the State, engaged in public works. Section 3 also refers to persons employed by or on behalf of the State, or by or on behalf of the county, etc., although the last sentence of this section provides that only those employees directly employed by contractors or subcontractors shall be deemed to be employed upon public works. Without commenting on various other provisions of the act which would clearly indicate the legislative intention to extend the act only to public work contracts with contractors, we are of the opinion that the title of the act refers...