delivered the opinion of the court:
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, chap. 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 :oo P.M., whereas the plaintiffs’ work schedule was from 8 :oo A.M. to 4:3o 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.
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.
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 re-examine the problem in its entirety. Indeed, in Zelney v. Murphy,
Plaintiffs have cited to us and quoted extensively from several cases of recent origin which, it is claimed, reject the cpnstitutional 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.,
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 eliminates the Federal aspects of the problems surrounding such regulations, it serves to reaffirm that it is for each State to determine if its legislature is empowered to enact such a statute and to determine if the means selected to further the public welfare bear a real and substantial relation to the objects sought to be obtained. It is the duty of each State to pass upon the validity of its own legislation and, if no Federal question is involved, the United States Supreme Court will adopt and follow the decision of the State court. Fairfield v. Gallatin County,
It has been aptly stated that the basic problem underlying the pay-while-voting regulations is how far the State may go in the exercise of its police power, and its corollary, to what extent will the constitution protect individual rights. Section 2 of article II of the Illinois constitution prevents the taking of private property without due process of law and also has been construed to guarantee the equal protection of our laws. (People v. Lloyd,
In enacting section 17-15 of the Election Code in 1943, the legislature sought to increase election participation, undoubtedly a high and benevolent public purpose under our representative form of government. Assuming the existence of the problem, and there is no showing here to the contrary, the mere finding that it does exist does not permit arbitrary or unrelated means of meeting it to be adopted. (Schroeder v. Binks,
Looking first to the mechanics of the statute, it is to be noted that actual voting is not a prerequisite to payment, for although the employee is granted a leave of absence, he is under no duty whatsoever to vote. Whether any public benefit is derived from such a provision depends upon each employee’s good conscience and realization of civic duty. This is the same sense of duty which is still deemed sufficient to cause the housewife, the farmer, the shopkeeper or other self-employed persons to exercise their right of suffrage. Be that as it may, it should be observed, too, that no group in our time has a finer record of election interest and participation than does labor, making it difficult to conceive that the employee now needs an added incentive to perform his obligations as a citizen. In any event, whether the provision in question will achieve the desired result remains so questionable as to cast doubt upon its validity as an exercise of the police power.
Nor do we find that the regulation has any real or substantial relation to the object sought to be obtained. Even though the cost to the employer has been substantial, this court has sustained, as a proper exercise of the police power, legislation dealing with maximum hours, minimum wages, workmen’s compensation, unemployment compensation, and the like. (See: Vissering Mercantile Co. v. Annunzio,
In the present case, we find no justification for a view that the problem of decreased election participation has arisen from the master-servant relation. It is not the business or responsibility of the employer to get out the vote, nor does the individual right of suffrage in any manner stem from the employment relation. Undoubtedly, history reflects the one-time necessity of voting regulations for the purpose of safeguarding the right of suffrage against employer coercion. We think, however, at least in this jurisdiction, that such a purpose has become outmoded by modern means of transportation, increased voting hours, shorter working hours, and other contemporary labor developments. Additionally, we find no compelling similarity in pay-while-voting to minimum-wage legislation. As many critics of the legislation have pointed out, it would be distinction enough that under the voting statute an employee is being paid for not working. We should consider too, at this point, that as a direct result of minimum wage legislation, the standard of living of the employee is increased and the labor market is enlarged, thus reducing the burden of public assistance and the problem of public health, to the benefit of employer and employee alike. On the other hand the only direct result of the pay-while-voting legislation is that the employer loses wages and production, and the employee may or may not vote. (See: 47 Northwestern Law Review, 252, 255.) It is our conclusion that the regulation has no real or substantial relation to the object of public welfare sought to be attained and thus may not be sustained as a constitutional exercise of the police power.
The Court of Appeals of Kentucky, in striking down a similar pay-while-voting regulation in Illinois Central Railroad Co, v. Commonwealth,
As was true in this court’s previous consideration of the disputed statute, we also find significance in the contention that the disputed portion of the statute creates arbitrary classifications. Section 22 of article IV of the constitution of 1870 requires that a legislative classification of persons subject to a statute must rest on some difference which has a reasonable and just relation to the act in respect to which the classification is proposed, otherwise it will be deemed arbitrary and in violation of the constitutional guaranties of due process and equal protection of the laws. (Larvenette v. Elliott,
The numerous other authorities cited to us in the plaintiffs’ behalf do not, as we construe them, have a persuasive application to the constitutional issues with which we are faced. In People v. Ford Motor Co.
An amicus curiae herein has called our attention to the recent case of Lorentsen v. Deere Manufacturing Co. 66 N.W. 2d (Iowa) 499, in which the Supreme Court of Iowa allowed employees to recover wages for the time spent in voting. This decision was based, however, upon an interpretation of the statute itself. The employer had contended, and the trial court so held, that an employee was not entitled to time off if he could have voted either before or after work. In reversing this decision, the Supreme Court held that employees must be allowed a leave of absence from their employment regardless of their other opportunities to vote. Whether or not the pay-for-voting provision was constitutional was never considered. As the court said: “The question of possible unconstitutionality of Section 49.109 is suggested, but not argued by the appellee. * * * It is true it is later urged that a holding interpreting the statute favorably to plaintiffs would make it unconstitutional, but we are not told why this would be so, what particular provisions of the basic law of the federal or state governments would be transgressed, or what authorities so hold. * * * In view of the strong presumption of validity of the law and the failure of defendant-appellee to point out in argument wherein it offends against the provisions of either constitution or to cite sustaining authorities, we decline to pass upon the constitutional aspects of the statute.” Whether or not the court would have reached the same decision had the constitutional question been presented is left further in doubt by its subsequent language: “It may be remarked in passing that it may be still more debatable to pay the voter for voting. Under modern economic conditions, in Iowa at least the great majority of workers have ample time outside their working hours in which to reach the polls and cast their ballots. So the two hour period taken from their time of service becomes a reward for performing a civic duty which every citizen should be glad to perform without pay. It becomes a bonus, a 'windfall’.” The case is clearly not in point.
It is true that a California appellate court, in Ballarini v. Schlage Lock Co.
Finally, plaintiffs contend that social and economic conditions have changed to such an extent since 1923, that we are now bound to reach a contrary result in this matter. No one will deny that times have changed, but whether the changes justify a decision that an attempted exercise of the police power which was once unconstitutional has now become constitutional is another matter. Pay-while-voting statutes were originally conceived in the period of. working days which ranged from twelve to sixteen hours and reflect upon a time when transportation facilities were both slow and meager. In the years that have passed, the working period has been reduced to the point where most employees work eight or less hours a day. Modern transportation facilities now permit travel to and from work in the matter of minutes. Further, labor unions, then in their infancy, now guarantee an employee equal bargaining power with his employer. All of these factors have served to diminish the need for regulation, and to divorce the problem of not voting from the master-servant relationship. If it is still deemed a necessary incentive that employees be paid for voting, we think it is matter to be settled by private agreement rather than by penal legislation which burdens and benefits but a few of those in the community who are affected.
Time, we believe, has served only to strengthen the logic in our earlier opinion. Since that date, the legislature has made no attempt to alter the provision or to reconcile it to our result. In fact, it is not until now, approximately thirty years later, that it has been questioned. Such a decision cannot be lightly ignored. Although the doctrine of stare decisis is not inviolable, our judicial system demands that it be overturned only on the showing of good cause. We are of the opinion that such has not been shown in this case.
For the reasons stated, we reaffirm People v. Chicago, Milwaukee and St. Paul Railway Co.
Judgment reversed.