Appeal from the Circuit Court of Warren County; the Hon.
BURTON A. ROETH, Judge, presiding. Reversed and remanded with
Rehearing denied and opinion modified February 19, 1963.
On June 19, 1962 a three count complaint was filed in the Circuit Court of Warren County. The plaintiffs are the City of Monmouth and nineteen other cities and towns in Illinois, the County of Carroll and three other counties in Illinois and three individual residents of Monmouth. The individual plaintiffs are Allan A. Walters, Mayor of the City of Monmouth, Vinton J. Mason and Richard Hickerson. The defendants are William John Payes, Jr., Director of the Department of Public Works and Buildings, Robert R. Donnelly, Director of the Department of Labor and James A. Ronan, Director of the Department of Finance, all of the State of Illinois.
The complaint alleges that the plaintiffs, Mason and Walters are taxpayers and residents of the City of Monmouth; that plaintiff, Hickerson, is an employee of said City and that the plaintiff cities, towns and counties are municipal corporations empowered by statute and charged with the duty of constructing sidewalks, streets, sewers and local improvements of various types. It is then alleged that the City of Monmouth has undertaken the building and maintenance of a City Hospital and that all the plaintiffs are engaged in the employment of personnel for the construction and repair of public works and are subject to the provisions of the "Prevailing Wage Law." (Ill Rev Stats 1961, c 48, § 39s par 1-12.)
The complaint then sets forth various provisions of this act and also a portion of the "Motor Fuel Tax Law" (Ill Rev Stats 1961, c 120, §§ 417-434), and also refers to divisions 5, 6 and 7 of Article 5 of the "Illinois Highway Code" (Ill Rev Stats 1961, c 121). It is then alleged that the purported prevailing hourly rates of wages, for the various types and crafts of workmen or mechanics in the locality affecting the plaintiffs, are substantially higher than the rates of pay employed by the plaintiffs when translated into hourly rates of pay for particular types of work; that the plaintiffs employ some persons who do both construction work and maintenance work on a monthly salary and some on an hourly basis; that by reason of steady employment and other benefits, plaintiffs are able to hire workmen and mechanics at rates of pay which are 33% to 50% less than purported prevailing hourly rates of pay for each craft or type of workmen performing labor on a particular construction job.
It is then alleged that neither the Motor Fuel Tax Law or the provisions of the Illinois Highway Code referred to in the complaint contain any provision with respect to compliance with the Prevailing Wage Act as a condition to allotment of motor fuel funds; that the effect of section 10a of the Prevailing Wage Act is to amend the Motor Fuel Tax Act by reference to its title only and by so doing conflicts with Article IV, section 13 of the Constitution of this state and is therefore void.
It is then averred that by reason of the invalidity of said section 10a of the Prevailing Wage Act plaintiffs have refused to comply with its provisions and in consequence thereof the Department of Public Works and Buildings refuses to approve necessary public works construction projects submitted by plaintiffs and the Department of Finance of this state refuses to allocate and cause to be paid over to plaintiffs motor fuel tax funds for any public works.
The complaint then charges that defendants have withheld from plaintiffs motor fuel tax funds which should be paid to them; that defendants have refused to approve public works of the plaintiffs and have refused to allocate motor fuel tax funds therefor, and as a result thereof plaintiffs have been unable to proceed with the construction of pending essential projects affecting the public health, safety and welfare.
It is then alleged that in order to prevent irreparable injury to plaintiffs' roads, streets and highways and in order to safeguard plaintiffs' rights to motor fuel tax funds presently allocated and to such funds as may be allocable in the future, and to afford plaintiffs' officers, agents and representatives protection against possible civil and criminal action for failure to comply with said prevailing wage act during the determination of its constitutionality, a preliminary injunction restraining the enforcement of section 10a of the Prevailing Wage Act and a stay of enforcement of said act in its entirety should be granted. The prayer of the complaint was for the issuance of a preliminary injunction and for a declaratory judgment finding and determining that all the provisions of the Prevailing Wage Law are unconstitutional and invalid.
Upon notice and a hearing the chancellor on July 9, 1962, granted the motion of the plaintiffs for a temporary injunction and entered an order directing the clerk to issue a temporary injunction, without bond restraining Robert H. Donnelly, Director of the Department of Labor, from enforcing any of the provisions of the Prevailing Wage Law against any of the plaintiffs who have not previously complied with this law. The order also restrained Wm. John Payes, Jr., Director of Public Works and Buildings, from withholding approval of public works projects of any of the plaintiffs by reason of their noncompliance with said act. James A. Ronan, as Director of the Department of Finance, was enjoined from refusing to allocate motor fuel tax funds to any of the plaintiffs by reason of their failure to comply with said law and also from withholding "approval of requests for motor fuel tax funds and disbursements of motor fuel tax funds to plaintiffs who have not complied with said law, (a) for approved maintenance work, as defined in said Prevailing Wage Law, and (b) for approved construction work, as defined in said law, provided that the public body receiving such funds shall proceed with the work only when sufficient funds are available to pay increased wages if such are finally determined to be due workmen on said construction project."
Defendants' motion to dissolve this preliminary injunction was heard and denied and this appeal followed.
The complaint alleges that plaintiffs can obtain workers to do the jobs of public work construction at rates of pay from 33% to 50% less than the prevailing wage and for that reason they refused to obey or comply with the provisions of the Prevailing Wage Law. Their theory is that the enforcement of this law imposes a burden on local property by reason of its applicability to all public works whether constructed with local money or state money. Counsel insists that the allegations of the complaint raise a fair question of the constitutionality of the act; that the plaintiffs have a sufficient interest in its enforcement to raise that question and in cases of this kind the chancellor had a wide discretion to preserve the status quo during the pendency of the litigation and that there is nothing in this record which indicates any abuse of discretion.
Counsel for appellants argue that the allegations of the complaint do not raise any fairly debatable constitutional question; that a grant of motor fuel tax funds by the state to political subdivisions of the state is a gift or bounty from the state and plaintiffs have no property interest in, or vested right to, such funds. It is also insisted that the several plaintiff municipalities are agents of the state and have no legal standing to bring a suit of this character and it is argued that the temporary injunction in this case does not preserve the status quo but compels the release of public funds to political subdivisions of the State in violation of the provisions of a valid Prevailing Wage Act.
The first Prevailing Wage Act in this State was enacted in 1931 and was declared unconstitutional in Mayhew v. Nelson, 346 Ill. 381, 178 N.E. 921. The second Prevailing Wage Act was invalidated in 1940 in Reid v. Smith, 375 Ill. 147, 30 N.E.2d 908. In 1941 the present act was enacted and in 1951, sections 2, ...