Mayhew v. Nelson

• Decision Date: 17 December 1931
• Docket Number: Nos. 21101,21102.,s. 21101
• Citation: 346 Ill. 381,178 N.E. 921
• Parties: MAYHEW v. NELSON, Auditor of Public Accounts, et al. PIGOTT et al. v. DEPARTMENT OF PUBLIC WORKS AND BUILDINGS et al.
• Court: Illinois Supreme Court

346 Ill. 381

178 N.E. 921

MAYHEW

v.NELSON, Auditor of Public Accounts, et al.

PIGOTT et al.

v.DEPARTMENT OF PUBLIC WORKS AND BUILDINGS et al.

Nos. 21101, 21102.

Supreme Court of Illinois.

Dec. 17, 1931.

Separate suits by Harry A. Mayhew against Oscar Nelson, Auditor of Public Accounts, and others, and by Annie Craig Pigott and others against the Department of Public Works and Buildings and others. Decree for complainants, and defendants appeal; the appeals being consolidated for hearing and determination.

Affirmed.

Appeals from Circuit Court, Sangamon County; Charles G. Briggle, judge.

Oscar E. Carlstrom, Atty. Gen., and J. J. Neiger, of Springfield, for appellants.

A. M. Fitzgerald, of Springfield, for appellee Harry A. Mayhew.

S. S. Du Hamel, of Springfield, for appellees Annie Craig Pigott and others.

DE YOUNG, J.

Harry A. Mayhew, as a citizen and taxpayer residing in Sangamon county, filed a bill on September 2, 1931, in the circuit court of that county against the Governor, the director of public works and buildings, the chief highway engineer, the director of finance, the auditor of public accounts and the state treasurer, to enjoin certain of the defendants from entering into a contract for the improvement of approximately eight miles of route No. 157, in Madison county, of the state-wide system of durable hard-surfaced roads, and the other defendants from issuingvouchers and drawing and paying warrants for work done pursuant to such a contract, if made. Shortly thereafter, on September 14, 1931, Annie Craig Pigott and Roberta Pigott, as citizens and taxpayers residing in the village of Oak Park, in Cook county, filed their bill in the same court against the department of public works and buildings, the director of public works and buildings, the chief highway engineer and the state superintendent of highways to enjoin the department and officers from entering into a contract with the States Improvement Company for the construction, through the city of Harvey, in Cook county, of two and seven-tenths miles of durable hard-surfaced road upon route No. 52 of the same state-wide system. The complainants charged that it was proposed to enter into contracts for the two projects in accordance with the provisions of an act entitled ‘An act regulating wages and hours of work of mechanics and laborers employed under contracts for public works,’ approved June 20, 1931, in force July 1, 1931 (Laws of 1931, p. 573; Cabill's Stat. 1931, p. 1375; Smith-Hurd Rev. Stat. 1931, pp. 1413, 1414), and the injunctions were asked upon the ground that the act was unconstitutional. The first bill was dismissed as to the Governor upon his motion. Thereafter a general demurrer was interposed to each bill. The demurrers were overruled, the defendants elected to abide by them, and the court, by its decree in each case, found that the act was unconstitutional and granted the relief sought. Direct appeals to this court were consolidated for hearing and determination, and the decision was announced at the October term with the statement that later an opinion would be filed.

The complete text of the several sections of the act in question is as follows:

‘Section 1. That every contract to which the State or any political division or subdivision thereof, including departments, counties, townships, villages, municipalities and, also, districts, boards and commissions created pursuant to law, is a party and which requires or involves the employment of laborers or mechanics in the construction, alteration and/or repair of any public work, for or on behalf of the State or any of its political divisions and subdivisions as aforesaid, shall contain a provision to the effect that the rate of wage for all laborers and mechanics employed by the contractor or any subcontractor on the public work covered by the contract shall be not less than the prevailing rate of wages for work of a similar nature in the city, town, village, or other civil division of the State in which the public work is located, and that no laborer or mechanic employed on the public work covered by the contract shall be required or permitted to work more than eight hours in any one calendar day, except in cases of extraordinary emergency caused by fire, flood or danger to life and property, and except such extra time as may be necessary in the placing or loading of materials or in the starting or placing of any equipment necessary to permit the working of the eight hour period, or such extra time as may be required to properly finish or protect any perishable work laid during the above mentioned eight hour period, or the repairing of or cleaning or housing of necessary equipment, such extra time to be paid for at overtime rates, and a further provision that in case any dispute arises as to what are the prevailing rates of wages for work of a similar nature applicable to the contract which cannot be adjusted by the contracting officer of the State or political division or subdivision thereof as aforesaid, the matter shall be referred to the Director of the Department of Labor for determination and his decision thereon shall be conclusive on all parties to the contract except as provided in section 4.

Ԥ 2. It shall be the duty of the public body having authority to contract for the public work in each case to ascertain the prevailing rate of wages as referred to herein, by such investigations as such public body may deem necessary, and to state such prevailing rate of wages in the advertisementfor proposal for the public work. For the purposes of this Act, the rate thus ascertained and stated shall be deemed to be the prevailing rate of wages as relating to the particular public work provided for in said proposal; provided that should not less than ten taxpayers of the political subdivision affected in a signed complaint, question the wage so determined, the matter shall be referred to an appeal board appointed in the manner and with the powers set forth in section 4 of this Act, and the finding of such appeal board shall immediately be made known to those who are bidding upon the work.

Ԥ 3. Every contract entered into pursuant to section 1 of this Act shall contain a clause to provide that if the contractor or subcontractor shall refuse or fail to pay not less than the prevailing rate of wage as provided in said section 1, the difference between such prevailing rate of wages and the wages actually paid to the mechanics or laborers shall be deducted from the amount to be paid to the contractor under the terms of the contract. The amount so deducted shall revert to the unappropriated funds of the State, or of the contracting political division or subdivision thereof, as the case may be. Provided that every contract entered into pursuant to this Act shall contain a clause providing that for a second violation of such contract by the refusal or neglect to pay not less than the prevailing rate of wages provided for in the contract as required by the Act, or for a second violation of that part of the contract relating to working hours as provided in section 1 of the Act, the contract on which said violation has occurred shall be declared forfeited. Such violation shall be sufficient cause to bar any contractor under any prequalification law or regulation governing contracts for public work.

Ԥ 4. The Director of Labor may upon his own initiative and shall upon a signed complaint of not less than ten taxpayers investigate any public work to ascertainwhether the contract therefor has been made and is being complied with in accord with the provisions of this Act. Upon finding any violation of this Act or of any contract made hereunder, the Director of Labor shall direct the enforcement of section 3 hereof. Provided that an appeal from any finding and decision of the Director of Labor may be taken within ten days from the date of said finding and decision to an appeal board to be convened on call of the said director. Such appeal board, shall, in each case, consist of three members to be appointed by the Governor from a list of persons to be submitted by the public body which is a party to the contract, by the president of the concerned contractors group designated by the Director of Public Works and Buildings and by the president of the largest federated body of organized labor in the State designated by the Director of Labor. The finding of all appeal boards shall be subject to such review by the courts as justice may require.

Ԥ 4 a. This Act shall not apply to the manufacture or transportation, loading or unloading, of ar...