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Mahin v. Myers

MAY 13, 1969.

GEORGE E. MAHIN, ANTHONY SCARIANO, ARTHUR R. GOTTSCHALK, JAMES C. KIRIE, ABNER MIKVA, MRS. CHARLES J. MOTT, THE ILLINOIS ASSOCIATION FOR MENTAL HEALTH, INC., A NOT-FOR-PROFIT CORPORATION, LILY KIRIE, D/B/A KIRIE'S RESTAURANT, ALBERT W. HACHMEISTER, AND THE BETTER GOVERNMENT ASSOCIATION, A NOT-FOR-PROFIT CORPORATION, PLAINTIFFS-APPELLANTS,

v.

MAUDE MYERS, DIRECTOR OF THE DEPARTMENT OF PERSONNEL, HAROLD M. VISOTSKY, DIRECTOR OF THE DEPARTMENT OF MENTAL HEALTH, JOHN E. CULLERTON, DIRECTOR OF THE DEPARTMENT OF LABOR, MICHAEL J. HOWLETT, AUDITOR OF PUBLIC ACCOUNTS, AND ADLAI STEVENSON, III, TREASURER, OF THE STATE OF ILLINOIS, DEFENDANTS-APPELLEES, BUILDING AND CONSTRUCTION TRADES COMMITTEE ON PREVAILING WAGES, INTERVENOR-APPELLEE.



Appeal from the Circuit Court of Sangamon County; the Hon. WILLIAM H. CHAMBERLAIN, Judge, presiding. Affirmed.

TRAPP, P.J.

Plaintiffs, having sued as citizens and taxpayers, appeal from a decree of the Circuit Court which dismissed their complaint to enjoin payment of a wage scale established by defendant, Maude Myers, as Director of the Department of Personnel of the State with particular respect to 514 maintenance employees of the Department of Mental Health of the State. The appeal was transferred to this court from the Supreme Court of Illinois.

The suit was brought under the authority of Ill Rev Stats 1965, c 127, § 63b112a(2), which states in part:

"On and after July 1, 1957, any citizen may maintain a suit to restrain a disbursing officer from making any payment in contravention of any provisions of this law (Personnel Code), rule, or order thereunder. . . ."

This section is specifically related to the certification of payrolls.

Plaintiffs, George E. Mahin, Anthony Scariano, Arthur H. Gottschalk, James C. Kirie, Abner Mikva and Mrs. Charles J. Mott are individual citizens and taxpayers, while Illinois Association for Mental Health and Better Government Association are Illinois not for profit corporations.

The defendants are Maude Myers, Director of the Department of Personnel, Harold M. Visotsky, Director of the Department of Mental Health, John E. Cullerton, Director of the Department of Labor, Michael J. Howlett, Auditor of Public Accounts, and Adlai E. Stevenson, III, Treasurer of the State of Illinois.

The complaint alleges that defendant, Maude Myers, Director of the Department of Personnel, purporting to act pursuant to Ill Rev Stats 1965, c 127, § 63b108a(2), established wage rates for maintenance brickmasons, carpenters, electricians, cement finishers, laborers, painters, plasterers, plumbers, roofers, steamfitters, tinsmiths, trades tenders and machinists based upon rates certified to the Department of Personnel by the Department of Labor as "prevailing rates," and that the Department of Mental Health adopted the said wage rates for 514 maintenance employees.

The complaint alleges that in making the determination of "prevailing rates" of wages, the Department of Labor used the rates found to have been negotiated by divers trade unions with private contractors for construction work in the several localities involved. It is alleged that the wage rates established made no differentiation between maintenance work and construction work.

The complaint alleges that the State pay plan adopted by the Department of Personnel also contains a schedule of "maintenance titles and rates" which specifically establishes minimum and maximum rates for maintenance brickmason, maintenance carpenter, maintenance carpenter foreman, maintenance electrician, maintenance equipment operator, maintenance machinist and maintenance worker, and that such rates are substantially lower than the "prevailing rates" certified by the Department of Labor and adopted by the Department of Mental Health.

Plaintiffs' contentions are: (1) that the establishment of the same rates of pay for construction work and maintenance work constitutes an arbitrary classification without rational basis in violation of the equal protection and due process clauses of the XIV Amendment of the Constitution of the United States, section 2 of Article II and section 22 of Article IV of the Constitution of Illinois; (2) that dependence upon privately negotiated rates of pay is an improper delegation of discretionary power of the defendant officials in violation of Article III of the Constitution of Illinois; (3) that Ill Rev Stats c 127, § 63b108a(2) is unconstitutional in that it is vague and thus in violation of the due process clause of the XIVth Amendment of the Constitution of the United States and section 2 of Article II of the Constitution of Illinois; and (4) that the maintenance employees are not being paid at the "rates set forth in the pay plan for the class of position in which he is employed" as provided in the fifth sentence of section 63b108a(2) of c 127, Ill Rev Stats 1965.

We are met first with the contention that plaintiffs have misconceived their remedy by bringing the suit under c 127, § 63b112a(2) hereinbefore quoted, instead of employing the procedure provided by c 102, pars 11 to 16 inclusive. The Attorney General has not pursued this point on appeal, but the point is emphasized in the brief of amicus curiae, Illinois State Federation of Labor. We think that that portion of the complaint which charges that the employees are not being paid at the rates set forth in the pay plan for the class of positions in which they are employed brings the suit within chapter 127, § 63b108a(2) in that it is a charge that the pay plan established is not being followed. While the charge of unconstitutionality of the act may not fall within a right to restrain violations under the act, it could, nevertheless, be that a portion of the act followed by the administrative officer would be unconstitutional leaving the conduct of the officer in violation of the remaining valid portion of the law. The purpose of c 102, pars 11 to 16, is to give preliminary notice to the Attorney General and requires leave of court to file a suit in equity, thus creating a means to prevent frivolous actions. Since the trial court indicated that the petition to file in equity would have been allowed if filed and the Attorney General did not pursue the matter, we cannot find that the court was without jurisdiction to pass upon the matters presented by the motion to dismiss.

Plaintiffs' first contention is that there is a necessary difference between the job of a maintenance employee, entailing inter alia year round employment, and the job of a construction employee of a private contractor which is normally seasonal, and that to declare that rates established for construction employees of private contractors is the "prevailing rate" of wages for full time maintenance employees is arbitrary and therefore in violation of the due process and equal protection provisions of the state and federal constitutions. We think that this contention falls short of ...


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