Heimgaertner v. Benjamin Elec. Mfg. Co.

• Decision Date: 20 May 1955
• Docket Number: No. 33400,33400
• Citation: 6 Ill.2d 152,128 N.E.2d 691
• Parties: , 28 Lab.Cas. P 69,222 Frances HEIMGAERTNER et al., Appellees, v. BENJAMIN ELECTRIC MANUFACTURING COMPANY, Appellant.
• Court: Illinois Supreme Court

Page 691

128 N.E.2d 691

6 Ill.2d 152, 28 Lab.Cas. P 69,222

Frances HEIMGAERTNER et al., Appellees, v. BENJAMIN ELECTRIC MANUFACTURING COMPANY, Appellant.

No. 33400.

Supreme Court of Illinois.

May 20, 1955.

Rehearing Denied Sept. 19, 1955.

Kenneth F. Burgess, Howard P. Robinson, Walter J. Cummings, Jr., William K. Bachelder, and Frank L. Bixby, Chicago (Sidley, Austin, Burgess & Smith, Chicago, of counsel), for appellant.

Jacobs, Kamin & Ratner, Chicago (Mozart G. Ratner, Chicago, of counsel), for appellees.

Harold A. Katz, Irving M. Friedman, and Jerome Schur, Chicago, for Duane Patrick Greathouse and others, amici curiae; Daniel D. Carmell, Chicago, for Illinois State Federation, amicus curiae.

DAILY, Justice.

This appeal from the circuit court of Cook County presents the question of the constitutional sufficiency of section 17-15 of the Illinois Election Code, (Ill.Rev.Stat.1951, chapter 46, par. 17-15,) which falls within the category of what is sometimes described as 'pay-while-voting' legislation. Specifically, the terms of the statute are as follows: 'Any person entitled to vote at a general or special election or at any election at which propositions are submitted to a popular vote in this State, shall, on the day of such election, be entitled to absent himself from any services or employment in which he is then engaged or employed, for a period of two hours between the time of opening and closing the polls; and such voter shall not because of so absenting himself be liable to any penalty, nor shall any deduction be made on account of such absence from his usual salary or wages; Provided, however, that application for such leave of absence shall be made prior to the day of election. The employer may specify the hours during which said employee may absent himself as aforesaid. Any person or corporation who shall refuse to an employee the privilege hereby conferred, or shall subject an employee to a penalty or deduction of wages because of the exercise of such privilege, or who shall directly or indirectly violate the provisions of this section, shall be deemed guilty of a misdemeanor and be fined in any sum not less than fifty dollars ($50) nor more than three hundred dollars ($300).'

The facts which bring the validity of the statute into question at this time show that plaintiffs, forty-nine in all, were employed at an hourly wage rate by defendant, the Benjamin Electric Manufacturing Company, an Illinois corporation. Prior to the general election of November 4, 1952, each of the plaintiffs requested and was granted a leave of absence for the purpose of voting. On the day in question the polls were open from 6:00 A.M. until 5:00 P.M., whereas the plaintiffs' work schedule was from 8:00 A.M. to 4:30 P.M., and it is stipulated in the record that all of the plaintiffs could have cast their ballots between 6:00 A.M. and 8:00 A.M. without interfering with their scheduled work with the defendant. Instead, however, all chose to vote during the period of absence authorized and it is agreed that each did actually use the time to vote. Thereafter, the defendant paid plaintiffs for the actual hours worked on November 4, but refused to pay for the time they were absent. Although an employer- union collective bargaining agreement was in existence at the time, it made no reference to the problem.

As a consequence of defendant's refusal to pay for the time of authorized absence, plaintiffs filed this action, based upon the quoted section of the Election Code, to recover the wages they would have earned had they not taken the time off to vote. It should be noted now, to quiet a contention of appellant, that although the act is penal in nature, that in itself does not bar a civil remedy. When a statute is enacted for the protection of a particular class of individuals, a violation of its terms may result in civil as well as criminal liability, even though the former remedy is not specifically mentioned therein. Streeter v. Western Wheeled Scraper Co., 254 Ill 244, 98 N.E. 541, 41 L.R.A.,N.S., 628; Sloan v. F. W. Woolworth Co., 193 Ill.App. 620; Ballarini v. Schlage Lock Co., 100 Cal.App.2d Supp. 859, 226 P.2d 771; State v. International Harvester Co., Minn., 63 N.W.2d 547; Olesen v. Retzlaff, 184 Minn. 624, 238 N.W. 12, 239 N.W. 672, 78 A.L.R. 891; 1 C.J.S., Actions, § 9; Rest. Torts, vol. 2, sec. 286.

In defense to the plaintiffs' complaint, the defendant alleged that section 17-15, insofar as it requires payment of wages for the period of unauthorized absence, is unconstitutional in that it deprives an employer of property without due process of law, denies an employer equal protection of the laws, grants employees a special privilege, and abridges the right to contract. After hearing the cause on a stipulation of facts, the trial court entered judgment for the plaintiffs. Since constitutional issues are fairly involved, appeal has been taken directly to this court.

This is not the first time we have been called upon to consider the validity of pay-while-voting legislation. In People v. Chicago, Milwaukee and St. Paul Railway Co., 306 Ill. 486, 138 N.E. 155, 28 A.L.R. 610, a decision rendered in 1923, the defendant corporation was adjudged a misdemeanant for having failed to pay an employee for two hours times spent in voting, in violation of section 25 of an act relating to the manner of holding elections, enacted in 1908. (Laws of 1907-1908, p. 80.) Except for differences in penalties, the 1908 statute was couched in terms identical with the existing provision of the Election Code which was adopted in 1943. (Laws of 1943, vol. 2, p. 1.) On appeal, this court reversed the conviction holding that while a period of absence for voting could validly be authorized, the provision which required the employer to pay an employee for such time could not be sustained as a valid exercise of the police power in that it deprived the employer of its property without due process of law, denied equal protection of the laws, and was an unreasonable abridgement of the right to contract.

The parties to the present action have argued extensively here as to the relative effects of our former decision and of the subsequent action of the legislature in reenacting the pay-while-voting regulation from time to time. It is our opinion, however, that a determination of the questions raised by such contentions is unnecessary at this time. In light of the apparent resurgence of this type legislation and the divergent judicial opinion it has provoked in recent years, together with plaintiffs' assertion, apparently indulged in by the trial court, that the evolution of an expanding police power should now serve to alter the previous views of this court, we think it is incumbent upon us to now reexamine the problem in its entirety. Indeed, in Zelney v. Murphy, 1944, 387 Ill. 492, at page 498, 56 N.E.2d 754, at page 758, where the analogies of the pay-while-voting statute were being discussed, this court said: 'The growing complexity of our economic interests has inevitably led to an increased use of regulatory measures in order to protect the individual so that the public good is reassured by safeguarding the economic structure upon which the good of all depends.'

Plaintiffs have cited to us and quoted extensively from several cases of recent origin which, it is claimed, reject the constitutional objections this court found to the pay- while-voting regulation. Foremost among them, and the only one which has been reviewed by the Supreme Court of the United States, is State v. Day-Brite Lighting, Inc., 1951, 362 Mo. 299, 240 S.W.2d 886, affirmed 342 U.S. 421, 72 S.Ct. 405, 96 L.Ed. 469. In that case the defendant corporation was found guilty of both refusing to permit an employee to absent himself for a four-hour period in which to vote, and of refusing to pay him his hourly wage for the period he did in fact absent himself for such purpose. Upon appeal to the Missouri Supreme Court, the conviction was affirmed by a court sharply divided on the issue of whether the pay provisions of the Missouri statute was a constitutional exercise of the State's police power. The majority making but little effort to distinguish between the authorized absence and pay features of the statute, held that it was a valid exercise, reasoning that the protection of the political welfare of its citizens was as important as the protection of their economical and physical well-being. In holding that the regulation was not so arbitrary, unreasonable or discriminatory as to violate their constitutional requirements of due process, equal protection and freedom of contract, the court stated that it was a reasonable classification of the employer-employee relationship comparable to minimum wage legislation, necessary and proper for the public welfare, which imposed an economic burden on the employer that was relatively slight when compared with the public interest to be subserved. The minority of the court, distinguishing between the authorized absence provision and the pay provision, was of the opinion that there was no valid need for the latter, sufficient to justify the overriding of the constitutional guarantees.

Upon further appeal of the Day-Brite case, the Supreme Court of the United States, in an opinion described by one writer as casting 'a withering ray upon Constitutional protection,' (47 Northwestern Law Review, 252, 254), refused to weigh the wisdom of such legislation or to decide whether the policy it expresses offends the public welfare, but found the Missouri statute valid as an exercise of the police power in the form of a minimum wage regulation and, as such, free of infirmity under the Federal constitution. Again, it remained for a dissenting justice to distinguish between absence for voting and pay for voting and to point out that the latter transcends mere regulation of practices in the business-labor field. Although the decision...