Lynch v. Devine, 76--124

• Decision Date: 31 January 1977
• Docket Number: No. 76--124,76--124
• Citation: 4 Ill.Dec. 185,359 N.E.2d 1137,45 Ill.App.3d 743
• Parties: , 4 Ill.Dec. 185, 23 Wage & Hour Cas. (BNA) 94, 81 Lab.Cas. P 55,014 D. E. LYNCH, Jr., Plaintiff-Appellant, v. John C. DEVINE et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1137

359 N.E.2d 1137

45 Ill.App.3d 743, 4 Ill.Dec. 185, 23

Wage & Hour Cas. (BNA) 94,

81 Lab.Cas. P 55,014

D. E. LYNCH, Jr., Plaintiff-Appellant, v. John C. DEVINE et al., Defendants-Appellees.

No. 76--124.

Appellate Court of Illinois, Third District.

Jan. 31, 1977.

Phillips, Phebus, Tummelson & Bryan, Urbana, for plaintiff-appellant.

Ronald E. Boyer, State's Atty., Iroquois County, Watseka, William J. Scott, Atty. Gen., Patricia Rosen and Robert G. Epsteen, Asst. Attys. Gen., of counsel, for defendants-appellees.

ALLOY, Justice.

Plaintiff D. E. Lynch, Jr. appeals from orders of the Circuit Court of Iroquois County granting motions to dismiss the complaint filed by plaintiff in this cause. The action was instituted against individual members of the Iroquois County Board of Supervisors, the County Superintendent of Highways, and Langhorne Bond, Secretary of the Illinois Department of Transportation. In the action filed by plaintiff, he sought to enjoin defendants from letting certain types of highway construction contracts which were not in compliance with certain provisions of the Prevailing Wage Act (Ill.Rev.Stat., 1975, ch. 48, pars. 39s--1, et seq.). Plaintiff also sought $100,000 in damages against county officials.

Secretary of Transportation Bond appeared and filed a motion to dismiss alleging that he was not a necessary or proper party defendant to the action and that he was immune from the suit in his capacity as a government official. The remaining defendants, hereinafter referred to as 'the County', also filed a motion to dismiss generally alleging plaintiff's lack of standing to maintain the action. The trial court granted both motions.

The terms of the Prevailing Wage Act provide that public construction contracts must require the contractors to pay their workmen the prevailing hourly wage in that locality for the type of work performed. (Ill.Rev.Stat., 1975, ch. 48, pars. 39s--3, 4). Excluded from the coverage of the Act, however, is maintenance work, defined as 'repair of existing facilities when the size, type or extent of such existing facilities is not thereby changed or increased' (Ill.Rev.Stat., 1975, ch. 48, pars. 39s--2, 3).

The specific type of construction to which reference is made is known as 'Class A--1 Bituminous Surface Treatment' according to State Highway specifications. Briefly, it consists of alternate applications of liquid binder and a stone aggregate material to the surface of the road.

The contentions and arguments concern whether this bituminous treatment is properly called 'construction' or 'maintenance work'. Defendants have considered it maintenance work and have let contracts on that basis, without requiring payment of the prevailing wage to workmen. Plaintiff Lynch contends that the treatment is construction work and that contracts let for such work must require the contractor to pay the prevailing wage rate.

In an attempt to show his standing to bring this question before the courts, Lynch alleges that he is a contractor who has done highway construction work in Iroquois County and elsewhere in the State over the past few years and that he has previously performed bituminous treatment work for the State. Plaintiff further alleges that he is a contractor 'qualified' with the State of Illinois and that the County's action in designating the treatment as 'maintenance' makes it impossible for him and other 'qualified' contractors to compete effectively with 'unqualified' contractors in bidding for road construction projects involving the bituminous treatment. Plaintiff also complains and asserts that this situation has cost him $100,000 in lost profits from contracts he could not obtain, and he asks that amount in damages from the County.

What plaintiff is requesting is that the court find that the A--1 bituminous treatment is 'construction' work and not 'maintenance' and, also, he seeks an injunction against the County to prevent the letting of further contracts for such work without requiring payment of the prevailing wage rates. An injunction is also sought against Secretary of Transportation Bond to prevent his approval of the State Motor Fuel Tax Funds for payment of such contracts until there is compliance with the provision relating to prevailing wages.

In addition to the assertion of his status as a contractor, Lynch also alleges his position as a taxpayer and resident of Iroquois County and of the State of Illinois and contends that this gives him standing to challenge the appropriation of State and local funds for an alleged violation of the Prevailing Wage Act.

On the basis of the issues framed by the parties, the appeal is concerned primarily with the question of whether plaintiff has standing, either as a citizen, a taxpayer, or a contractor, to maintain the cause of action. In the resolution of this problem we accept as facts all allegations well-pleaded and all reasonable inferences therefrom. (Suvada v. White Motor Co., 32 Ill.2d 612, 613, 210 N.E.2d 182 (1965); Barco Mfg. Co. v. Wright (1956), 10 Ill.2d 157, 158, 139 N.E.2d 227; Palier v. Dreis & Krump Mfg. Co. (1st Dist. 1967), 81 Ill.App.2d 1, 5, 225 N.E.2d 67; Miles Homes, Inc. v. Mintjal (4th Dist. 1974), 17 Ill.App.3d 642, 645, 307 N.E.2d 724).

The question of standing is perhaps most widely associated with decisions of the United States Supreme Court concerning Federal Court jurisdiction and is an issue that frequently confronts State courts. While the jurisdictional problems of Article III of the U.S. Constitution provide the foundation for most of the Supreme Court decisions, necessarily, the same problems are required to be dealt with on the State level. (See e.g. Cusack v. Howlett (1969), 44 Ill.2d 233, 236, 254 N.E.2d 506). There is, however, still a great deal of guidance which can be noted from the United States Supreme Court cases.

The doctrine of standing, simply stated, requires that a party seeking relief from the courts must allege some injury in fact to some substantive, legally-protected interest of his, which is a right or interest either recognized by common law or created by statute. (See: 59 Am.Jur.2d Parties, §§ 26--29). The doctrine is used to insure that the courts are available to decide actual, specific controversies between the parties and are not overwhelmed in the mire of abstract questions, moot issues, or cases brought on behalf of other parties who do not desire judicial aid. Flast v. Cohen, 392 U.S. 83, 99--100, 88 S.Ct. 1942, 1952--53, 20 L.Ed.2d 947, 961--62 (1968).

Where the suit alleges injury due to violation of a statute, the doctrine of standing requires that the plaintiff be one of the class designed to be protected by the statute, or for whose benefit the statute was enacted, and to whom a duty of compliance is owed. (73 Am.Jur.2d Statutes, § 433; See: Association of Data Processing Service Orgs., Inc. v. Camp, 397 U.S. 150, 153--154, 90 S.Ct. 827, 829--830, 25 L.Ed.2d 184, 188 (1970); Boyer v. Atchison, T & S.F. Ry. Co. (1st Dist. 1962), 34 Ill.App.2d 330, 335, 181 N.E.2d 372). The object of the statute, the nature of the duty imposed by it, and the benefits resulting from its performance dictate what persons are entitled to sue thereunder. (See 73 Am.Jur.2d Statutes, § 433).

Plaintiff bases his standing to bring the instant action in part on his status as a contractor who has performed and can perform the work involved in the bituminous treatment. It does not appear that Lynch, as a contractor, is even arguably within the zone of interest sought to be protected by the enactment of the Prevailing Wage Act. Plaintiff's complaint refers to 'qualified' and 'unqualified' contractors without further defining these classes. He alleges that his ability to bid competitively for bituminous treatment contracts has been injured by the County's designation of the work as 'maintenance'. He does not allege any other facts supporting the claim of competitive injury and without such supporting allegations of fact, the conclusions as set forth in the complaint, do not support a cause of action. Van Dekerkhov v. City of Herrin (1972), 51 Ill.2d 374, 377--379, 282 N.E.2d 723; Gouker v. Board of Supervisors (1967), 37 Ill.2d 473, 479, 228 N.E.2d 881; Ill.Rev.Stat., ch. 110, par. 31, 1975.

Even if sufficient averments of fact were made, we cannot agree that the contractor, as a contractor has a cause of action to enforce the statute on the ground that he was competitively injured. The legislature clearly has imposed no duty under the statute toward contractors which the County could be said to have breached by its action. The plaintiff, as a contractor, is thus clearly not one for whose benefit the statute was enacted.

Plaintiff also asserts standing on the basis of his status either as a citizen and resident of the County and State or as a taxpayer thereof. It has long been established in Illinois that a taxpayer may sue in equity to enjoin the illegal appropriation of public revenues (Barco Mfg. Co. v. Wright (1956), 10 Ill.2d 157, 160, 139 N.E.2d 227; Droste v. Kerner (1966), 34 Ill.2d 495, 505, 217 N.E.2d 73; Krebs v. Thompson (1944), 387 Ill. 471, 473, 56 N.E.2d 761; Illinois Broadcasting Co. v. City of Decatur (4th Dist. 1968), 96 Ill.App.2d 454, 459, 238 N.E.2d 261). The right of the taxpayer is founded on the proposition of his equitable ownership of the funds and the fact of his liability to replenish the treasury in the event of misappropriation. His complaint must establish this situation, otherwise it is fatally defective (Price v. City of Mattoon (1936), 364 Ill. 512, 514, 4 N.E.2d 850; See also: Barco Mfg. Co. v. Wright (1956), 10 Ill.2d 157, 160, 139 N.E.2d 227, and Daly v. County of Madison (1941), 378 Ill. 357, 364, 38 N.E.2d 160). In simple terms, therefore, the taxpayer must allege that the acts complained of would result in financial loss or other injury to himself or the taxpayers as a whole, through increased taxation,...