*1 al., Plaintiffs-Appellees, HERBERT HAYEN et v. THE COUNTY OF OGLE, al., Defendant-Appellant (Aurand Construction et Intervenors-
Appellants). Second District No. 82 — 313
Opinion July filed 1983.
HOPF, J., dissenting. Schumacher,
Dennis State’s Attorney, Oregon, appellant County Ogle. *2 Smetana, Hodes, Burman,
Gerard C. of Arvey, Chicago, Costello & of other appellants.
Joseph Flaccus, W. Phebus, Tummelson, Phebus and Janet A. of both Knox, Bryan Urbana, & appellees.
PRESIDING JUSTICE SEIDENFELD delivered the opinion of the court: This appeal challenges the of “An Act constitutionality regulating ***”
wages of workers employed in any public works (Prevailing Wage Act) insofar as it is construed “general to define prevailing rate of wages” as wages paid employees working works only. ch. seq. et par. 39s — 1
The county board of Ogle County passed resolution ascertaining the prevailing wages to be paid public works projects the county by first inquiring into wage rates paid on both public and private con- struction projects trades. Using information, this county board passed resolution which averaged the rate set for each of the construction crafts to arrive at the prevailing for each craft. The plaintiffs, who are representative certain trade unions in the county, objected to method, claiming that the statute limits the inquiry to wages paid on public works projects. They further claim error in the mathematical computation.
Following a hearing, the county board adhered to its resolution. Plaintiffs sought administrative review in the circuit court. Various parties doing business in Ogle County permitted were to intervene as of right. The court, circuit finding fact, no issue of reversed the county board’s determination based on the law and directed the county reascertain the prevailing rate of wages by its in- quiry wages paid on public works. The county and intervenors ap- peal, contending that the statute, construed, so is unconstitutional a violation of due process and equal protection standards.
We consider first the contention of the county plaintiffs lacks standing to challenge the constitutionality of the Prevailing entitled is not a entity “person” municipal
Wage Act because and of due protections amendment fifth and fourteenth provi- similar and under Federal Constitution under the protection Depart- Riverwoods (See Village in the State Constitution. sions 130, 136; Hospi- Franciscan 77 Ill. 2d Transportation ment of This 490, 496-97.) tal v. Town Canoe Creek they in the trial court by petitioners not advanced argument was v. Du- (Demchuk it on raising appeal. from precluded are therefore Marine, Inc. Kravis Smith (1982), 92 plancich argu- consider the constitutional will therefore of the standing the issue reviewing ments without to raise them. the intervenors as pertinent:
The statute provides, wage of Illinois that a the State of It “Sec. 1. for work rate as hourly general prevailing no less than the is per in which character of a similar mechanics laborers, formed, workers shall be engaged and all bodies or on behalf employed by Ill. Rev. Stat. work.” works, exclusive of maintenance in public 39s — 1. par. laborers, mechanics 2. This Act applies “Sec. works, as hereinafter any public employed and other workers *3 for contracts under anyone and to defined, body by any public works. public otherwise: indicates Act, in unless the context
As used public for works constructed means all fixed ‘Public works’ directly by than work done body, other by any public use super- public under whether or not done public utility company, public out of direction, part or in wholly or for paid or vision funds.
[*] [**] ‘general wages,’ hourly rate of ‘general prevailing The terms when wages’ rate of or wages’ ‘prevailing rate prevailing bene fringe wages plus cash hourly mean the in this Act used insurance, pensions and welfare, vacations fits for health being per the work in which locality generally, paid character a similar in work formed, engaged to employees 39s — 2. 1981, ch. par. on works.” hourly rate of general prevailing than the 3. Not less “Sec. in on public character of a similar for work less than and not is performed, in locality which holiday legal hourly rate of prevailing general work, laborers, shall workers and me- overtime engaged chanics or on behalf of in employed by any public body works, the construction of exclusive or maintenance ***” work. Ill. par. Rev. Stat. ch. 39s-3.
“Sec. 4. The public body awarding any contract for public works, work or otherwise undertaking any public shall ascer general tain the rate of prevailing hourly wages which work is to be for each craft or performed, type worker mechanic needed to execute the contract ***.” par. 39 — and the interveners contend that the act as construed by the circuit court unconstitutionally deprives taxpayers Ogle claim, them property by forcing pay, they substantially higher wages to workers on than is public projects on projects, without a rational relation to the of the act. purpose They also contend that the statutory construction substantially interferes the right of contractors to contract with their employees and ma- terially increases the costs of construction.
This court has that the “on previously decided works,” which was added to section of the act in has the ef fect of rate to inquiry ascertaining prevailing wage public projects. (Anderson County Joof Daviess appellants appear to be arguing Anderson, that we should reassess our holding apparently that, for the reason they argue, Anderson does not deal with the dec laration of policy found in section 1 of the act not changed which was the amendment following argue to section 2 in 1961. They enactment, of the act since purpose its as stated in section has been to effectuate a policy that workers on contracts receive not than wages paid less for similar work throughout locality, not Thus, merely wages paid works. the statute as we have con legislative strued can never achieve the purpose equalizing public and therefore does not a rational private wages bear relation to legislative find arguments First, these unpersuasive several reasons. declaration is policy essentially neutral. Section 1 does not state that it is State policy equalize public works and construc- wages. Rather, tion it declares the to be “that a *4 *** less than the general prevailing hourly rate in the locality shall be paid” laborers works projects. (Emphasis added.) The is underlined defined in section 2 benefits paid generally relevant “employees engaged
84 There is thus inher- works.” of a similar character work recog- sections 1 and 2. We rather than conflict between harmony
ent act as amended to nized in Anderson intended the legislature jobs for the provide equalization Jo Daviess 81 works sector. Anderson (1980), 354, Ill. 3d 358. App. like a ‘is Further, preamble, “a declaration of policy, ” 144, The v. Kirk 152.) 64 Ill. 2d (Brown (1976), Act.’
part that only indicates unambiguously of the act as amended provision It is an mode improper are to be equalized. reference to a to create ambiguity construction of statutes 144, 152-53.) Kirk (Brown (1976), section of the statute. legitimate State ob the statute serves The real issue is whether it a ra process A not violate due jective. law does arbitrary and is neither legislative purpose proper tional relation to a 534, Com. (Kidd v. Industrial (1981), 85 nor discriminatory. Co. 3d Manufacturing Thornton v. Mono (1981), 99 483, 488, 99 Optical See also Williamson v. Lee (1955), 348 U.S. 725. the rational 563, 572, applying The court L. Ed. 75 S. Ct. “pur actual isolating legislature’s charged basis test is not with the statu determining then whether a statute and pose” passing the legislature. the actual goal related to rationally means are tory legislature if the Rather, there is a “rational basis” it is settled that to any legiti related reasonably that the law is could have concluded the ra examining restricted to The court is not objective. mate State legislature goal the statute and connection between tional reason for law; if there is a plausible passed had mind when “ whether ‘constitutionally irrelevant action it is legislative ” (United States decision.’ legislative in fact reasoning underlay L. Ed. 66 Board v. Fritz 449 U.S. R.R. Retirement (1980), there ex test is whether 453, 461.) Thus the 368, 378, 101 S. Ct. 2d and “a” legislative proper the statute relation between ists a rational United Industrial Com. (Kidd v. (1981), 175-78, Board v. Fritz U.S. R.R. Retirement States v. Mono Thornton 376-78, Ct. 101 S. L. Ed. 2d This is consistent Manufacturing Co. if it due not violate substantive a law does the view that R.R. Retirement States United discriminatory. is not 368, n.8, L. Ed. 2d v. Fritz 449 U.S. Board n.8, 458 n.8. 101 S. Ct. ato subjected if the statute reasoning applies same the act vi- argument analysis. equal protection
constitutional *5 it is on the assertion that essentially olates based protection require on works may pay higher wages projects contractors no they This difference is might pay projects. works the is the ground invalidating adequately supported by statute and State’s interests the conditions under which controlling are assurance the projects “give works so as some that performed, average work will be completed delay by without workmen (Bradley Casey (1953), v. Atkin v. State of skill.” 415 Ill. Kansas 148, act, (1903), 124.) 191 U.S. 48 L. Ed. 24 S. Ct. The which in essence is sets minimum works projects, not and thus due nor arbitrary process equal protec- violates neither tion.
We also no merit other arguments find constitutional by raised the The act not the county intervenors. does violate privileges amendment; and immunities clause of the fourteenth the ec rights onomic interests involved here are not within the of national High v. Mt. (Murphy Carmel citizenship protected by that clause. School (7th Slaughter-House Cases 1976), 1192-93; Cir. F.2d 36, 74-75, (1873), U.S. 21 L. 408.) Finally, argument Ed. the that the statute delegates the to fix unconstitutionally power court projects was parties rejected by County Anderson v. Jo Daviess 81 Ill. we holding see reason to disturb our there.
A further question county has been raised as to the whether is required take into at consideration number hours worked each rate before determining the rate. The prevailing general hourly act not require does formula in county any specific to use calculat ing Rather, the generally prevailing wage. county must as simply certain the “generally current” or “most each frequent” wage for (Bradley v. particular craft in public construction in the area. projects Casey (1953), 415 Ill. not county’s The determination will Valley Fox River unless it upset by is not evidence. supported v. Carpenters Board Education School Union District Commissioner Labor N.H. Anderson, 176 A.2d 336.) In this court use approved questionnaires and the division of total hours pay by total worked focus, however, trade. should what is “most fre be on (Bradley Casey (1953), quent” current.” “generally find no error in the method used to ascertain the generally prevailing wage.
The judgment of the circuit of Ogle court affirmed.
Affirmed.
REINHARD, J., concurs. HOPE, dissenting:
JUSTICE
I
agree
majority
dissent.
statute
respectfully
relationship
not violate due
bears a rational
does
neither
nor discrimina-
proper legislative
to a
and is
purpose
However, I do
exists to
Pre-
legitimate purpose
not believe
tory.
amended;
do I
vailing
Act
nor
believe
Wage
relationship
works”
a reasonable
actual
“on
the act.
original
behind
prevail
Act was one
Prevailing Wage
many
Illinois
original
*6
during
the
which
enacted
the
ing wage
throughout
country
acts
was
the economic and social conditions of the times.
Depression to combat
Janero,
(See
Implied,
Right
Leader &
Private
Action Under the
in
Closing
Loopholes
Davis-Bacon Act:
Some
Administrative Enforce
ment,
(1980) (hereinafter Leader);
29 DePaul L.
793
see also
Rev.
Annot.,
(1968).) During that
un
period, widespread
responding incorporating effect 1961, ch. pars. the Act. into the policy provision Thus, (see construed as a whole 39s—1, when the statute is 39 s— 206, 425 N.E.2d Woodstock City Jahn for the equali Act as amended provides the current of the 490), works sec jobs zation of wages paid workers pay rate of separate tor itself. The result is a 20% to allegedly and is generally to the market unresponsive which is reasoning sector. The higher 30% de be without give completed some assurance work would appropriate justifi skill have been an lay by average may workmen bring public up cation when the Act was workers interpreted However, legislation standards in the where private industry. in wages roughly amended and 30% over applied provides necessary can that this result is dustry locality, say same we assure that will workers of aver completed diligently by be words, skill? In other like age paying there is a rationale so that em given locality, reasoning apply but does same in a I think ployees given locality? over and above workers that a cognizant statutory interpretation not. am principle a it a rational relation law does not violate due nor discrimina to a and is neither proper legislative purpose (Kidd v. Industrial Com. 426 N.E.2d tory. Manufacturing Thornton v. Mono Co. However, 425 N.E.2d I find no legitimate legislative purpose creating a financial self-perpetuating arrangement.
I am mindful of the caveat that the courts should not substitute v. Industrial Com. their judgment for that of the (Kidd legislature. *7 Breed- Illinois Gamefowl 534, 538, 822; 426 N.E.2d ers Association v. Block 443, 454, 389 N.E.2d mean However, has does not just legislature legislated because the that no statute could ever be found analysis must end. Otherwise Retirement Board v. Fritz United States R.R. arbitrary. 368, 383, 101 S. Ct. (1980), 449 U.S. 66 L. Ed. 2d (Brennan, J., determining pur- what dissenting).) difficulty have is, in one class of the amendment to section 2 other than to lock pose taxpayer higher wage of worker to a scheme to the detriment possible in the sector. it not be working Would his coun- a worker on a could times what public project many receive the original sector is If we terpart receiving? say intent of the the services of work- guarantee act was guarantee ers of amendment should average capability, new cream of the crop.
I therefore conclude that the original purpose of the act remains in tact and that the limiting phrase “on public works” bears an unreasona ble relationship to that pars. 39s—1, 3 Anderson v. County Jo Daviess (1980), 81 Ill. App. s — cf. 9 354, 401 N.E.2d where we found no unconstitutional delegation of authority phrase “on public works.”) The purpose of equalizing wages in and private sectors of the economy can never be achieved if in ascertaining general prevailing wage public bodies may only inquire into wages public works projects. I would therefore hold that section Act, the Prevailing Wage insofar as it purports limit such an inquiry only public and results in payment of wages up 30% higher those in the private sector, is unconsti tutional as both a denial of due process and equal protection.
THE PEOPLE ex rel. CITY CHICAGO, OF NORTH Plaintiff-Appellee, v.
THE WAUKEGAN, CITY OF Defendant-Appellant.
Second District No. 82 — 861 5, 1983.
Opinion July filed