APPEAL from the Circuit Court of Cook County; the Hon.
CORNELIUS J. HARRINGTON, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 18, 1966.
The plaintiff, George E. Mahin, a citizen and taxpayer, brought this action against the defendants, who are the trustees and the paymaster of the Metropolitan Sanitary District of Greater Chicago. The complaint sought an injunction to restrain the paymaster and the other defendants from approving or making certain salary payments alleged to be unlawful. It also sought to recover from the individual defendants, jointly and severally, the sum of $455,000 which was alleged to have been unlawfully expended in the payment of wages to employees of the District. The complaint prayed that the amount so recovered be restored to the District under the supervision of the court. The circuit court of Cook County held unconstitutional the statute upon which the plaintiff based his claim for a personal judgment against the defendants, and dismissed the complaint for want of equity. The plaintiff has appealed directly to this court upon the ground that the case involves questions arising under the constitutions of the United States and of the State of Illinois.
The statutory provision which was held unconstitutional was added to the Chicago Sanitary District Act in 1963. It provides: "Any citizen may maintain a suit to restrain a disbursing officer from making any payment in contravention of any provision of this law, or of any rule, regulation or order thereunder. If any sum is paid contrary to any provision of this law, or of any rule, regulation or order thereunder, the sum may be recovered in an action maintained by any citizen against any officer or agent therefor who certified or approved the payment to the Treasurer, or against the Treasurer if he failed to obtain proper certification or approval from the proper officer before making such payment." Ill. Rev. Stat. 1963, chap. 42, par. 323.30a.
The constitutionality of this statute is challenged upon the ground that it is special legislation because it singles out, for the imposition of personal liability, the officers and agents of this sanitary district, from among "all other sanitary districts and municipalities of the State." It is also attacked upon the ground that it confers judicial functions on non-judicial officers, and is so vague and indefinite as to deprive certain officers and employees of the District of equal protection of the laws and of due process. The parties have argued these constitutional issues extensively, as well as the construction of the statute and its applicability to the defendants in this case.
To the extent that the plaintiff's complaint is based upon the statute, personal liability exists only as to payments made in contravention "of any provision of this law, or of any rule, regulation or order thereunder." And insofar as the complaint asserts the right of a citizen and taxpayer to enjoin the illegal disbursement of public funds, the right to an injunction is conditioned upon the illegality of the disbursement. Unless, therefore, the conduct of which the plaintiff complains falls within the ambit of the statute, or is otherwise unlawful, the complaint does not state a claim upon which relief can be granted. For this reason we consider first the asserted illegality of the conduct of which the plaintiff complains.
This conduct falls into two categories. The first concerns the rate of wages paid since January 1, 1964, to employees in three job classifications: "Operating Engineers A", "Operating Engineers B", and "Maintenance Laborers B". It is alleged that there are at least 77 employees of the District in the first of these classifications, 50 in the second, and 63 in the third, and that the wage rate in each classification was increased by the District's 1964 appropriation ordinance. The increase for the first two classifications was $12 per month, or $144 per year, and for the third classification the increase was $8 per month, or $96 per year.
The complaint alleges that the wage rates fixed by the District's 1964 appropriation ordinance substantially exceed the prevailing wage rates "on comparable jobs in representative private enterprises and government agencies in Chicago, outside and independent of the Sanitary District." The governmental agencies with which the District's wage rates are compared are the State of Illinois in its operation of the State of Illinois Building in Chicago, and the General Service Administration of the United States. The private organizations include those enterprises which are members of the Building Managers Association of Chicago; those organizations in Chicago which are surveyed annually by the Bureau of Labor Statistics of the United States Department of Labor, and "Browne & Storch, Inc., a private enterprise which under an independent contract with the Sanitary District operates the Sanitary District's own headquarters building at 100 E. Erie Street, Chicago."
The comparisons set out in the complaint show that the wage rates of the District exceed the wage rates of the private and governmental organizations with which they are compared by percentages ranging from 16.26 per cent to 51.08 per cent. Computed upon the basis of the smallest amount by which the District's wage rates exceed those of the organizations with which they are compared, the excess annual cost to the District for the 290 employees in the three job classifications is alleged to be $384,048.
The wages of the District employees are alleged to be unlawful to the extent that they exceed wages prevailing on comparable jobs in the Chicago area. And by an amendment to the complaint it was alleged: "These wage rates were fixed pursuant to the Sanitary District's Prevailing Rate Schedule, under which the Sanitary District purports to pay employees the prevailing rate of wages paid generally in the locality to employees engaged in private industry in work of a comparable character and represented by unions."
So far as this aspect of the complaint is concerned, we are of the opinion that it fails, for several reasons, to allege any unlawful conduct on the part of the defendants. In the first place, the pertinence of the allegations concerning prevailing rates of wages is not apparent. The complaint seems to say that although the District purports to pay its employees the prevailing rate of wages, it actually pays them at a higher rate because its Prevailing Rate Schedule is incorrect. But in all of the lengthy factual allegations of the complaint there is no statement of any legal duty imposed upon the officers of the District with respect to the payment of wages at prevailing rates.
In the second place, although the complaint alleges that comparable work is done by those employees whose wage rates have been selected for comparison with the wages of the District's employees, other allegations of the complaint cast doubt upon that assertion. One of the comparison groups consists of those employees of the District who work in its central office building, and all of the employees selected for comparison work in office buildings. That the conditions under which these employees do their work are comparable to those of the District's employees here in question, who from the allegations of the complaint appear to be those who work in the sewage treatment plants of the District, is dubious on the face of the complaint.
Finally, the plaintiff charges that these wage rates are excessive and that their payment "is an express violation of the governing statute, which restricts wage scales to the rates `necessary * * * for the proper management of the affairs of the Sanitary District.'" The statute, however, does not contain any such restriction. Section 4, which prescribes the powers and duties of the trustees, contains the following provisions with respect to compensation of officers and employees: "The Board shall prescribe the powers and duties and fix the compensation of the general superintendent and of all the officers and employees of said sanitary district. Provided, however, that the salary of the president of said board of trustees shall not exceed $12,500 per annum and the salary of each of the other trustees shall not exceed $10,000 per annum." (Ill. Rev. Stat. 1963, chap. 42, par. 323.) Apart from the specified restrictions on the salaries of the trustees, this section is the customary broad grant of power to the corporate authorities of municipalities to fix the rates of pay of employees. The plaintiff derives the word "necessary" from the following paragraph of section 4 which provides: "Said board of trustees shall have full power to pass all necessary ordinances, orders, rules, resolutions and regulations for the proper management and conduct of the business of said board of trustees and of said corporation and for carrying into effect the object for which such sanitary district is formed." This affirmative grant of power can not reasonably be read as a limitation on the authority of the trustees to determine the salaries of employees. Cf. Tribune Co. v. Thompson, 342 Ill. 503.
This aspect of the complaint is therefore untenable, both because it relies upon an inadequate factual basis and because the legal obligation which it seeks to impose is nonexistent.
The second expenditure which the complaint challenges involves the job classifications "Engineering Assistants I, II, and III." It is alleged that on July 1, 1964, in the middle of the District's appropriation year, the compensation of these employees was increased by means of a change in their method of compensation. This increase is asserted to have resulted in the expenditure of $69,744 during the second half of 1964. And it is alleged that the increase was in violation of section 5.7a of the statute which provides: "No changes in title and/or rate shall take place during the fiscal year among the titles and rates that are listed in the Annual Appropriation Ordinance. This does not prohibit ...