APPEAL from the Circuit Court of Champaign County; the Hon.
ROGER H. LITTLE, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Plaintiffs, who are nonacademic employees of the University of Illinois at Urbana, brought suit in the circuit court of Champaign County seeking to compel the defendants to pay to them the prevailing wage rates in that area. Plaintiffs' claim is based on legislation entitled "An Act in relation to the rate of pay for State employees who are not subject to the `Personnel Code'. Approved September 25, 1975, P.A. 79-1091, eff. October 1, 1975." Ill. Rev. Stat. 1977, ch. 127, par. 391.
The complaint was in four counts. Count I sought mandamus, count II asked for declaratory judgment, count III repeated the allegations of count I and asked for certification as a class action, and count IV repeated the allegations of count II and asked for certification as a class action.
The defendants are the University Civil Service System Merit Board created under section 36b of "An Act to create the State Universities Civil Service System" (Ill. Rev. Stat. 1977, ch. 24 1/2, par. 38b1), and Donald Ward, university director of personnel services at the University of Illinois.
After appropriate responsive pleadings were filed by the defendants, the trial court held a hearing and dismissed the complaint upon findings that (1) it was not a proper case for a class action, and (2) that the "Act in relation to the rate of pay * * *," referred to above did not supersede nor amend by implication the provisions of the University Civil Service System Act. This appeal followed. Plaintiffs' two issues on appeal are that the trial court committed errors of law in making the findings recited above.
The factual allegations of the complaint which were the same in each of the four counts may be summarized as follows: that the University of Illinois is a land-grant college organized under the constitution and laws of the State of Illinois and that plaintiffs are employed as nonacademic employees thereof at the Champaign-Urbana campus under the University Civil Service System; that the Merit Board has the power under its statute to classify jobs and set conditions of employment and compensation; that the defendant Ward is responsible for making recommendations to the Merit Board concerning classifications, conditions and compensation of employment; that nonacademic employees of the university are exempt from the provisions of the Personnel Code (Ill. Rev. Stat. 1977, ch. 127, par. 63b101 et seq.) by reason of being under the University Civil Service System; that the aforementioned act in relation to pay for employees not subject to the Personnel Code became effective October 1, 1975; that plaintiffs' classifications, and wage rates, have been treated as non-prevailing; that plaintiffs have demanded the prevailing rate, but defendants have refused, asserting that the act does not apply to the university; that the act does apply to the university its nonacademic employees and the defendants.
As indicated above, in counts I and II, plaintiffs sued on their own behalf, asking for a writ of mandamus and for declaratory judgment against the defendants requiring them to determine that plaintiffs are entitled to the prevailing wage. In counts III and IV plaintiffs asked for the same relief and further asked to be certified as representatives of a class of all nonacademic employees similarly situated.
The first issue to which we will address ourselves is the relationship of the statutes. The act under which plaintiffs claim their rights reads as follows (herein the Act):
"Whenever any State officer, agency or authority, whether funded by State taxes or otherwise, employs an individual in a capacity or position of such a character as would be subject to rules or regulations of the Department of Personnel requiring the payment of the prevailing rate of wages to those holding such a position or serving in such a capacity if that employment were subject to the `Personnel Code', the State officer, agency or authority shall pay that individual at the prevailing rate, notwithstanding the non-applicability of the `Personnel Code'." Ill. Rev. Stat. 1977, ch. 127, par. 391.
The Personnel Code (Ill. Rev. Stat. 1977, ch. 127, par. 63b101 et seq.) is a comprehensive statute dealing with personnel administration throughout State government. It is not contested that plaintiffs were exempt from its provisions at the time of filing suit by virtue of section 4c(9) which reads in part as follows (herein the Code):
"General exemptions. The following positions in State service shall be exempt * * *:
(9) All other employees * * * of the * * * University of Illinois * * * so long as these are subject to the provisions of `An Act to create the State Universities Civil Service System', approved May 11, 1905." Ill. Rev. Stat. 1977, ch. 127, par. 63b104c(9).
It is likewise not contested that plaintiffs were subject to the University Civil Service System (Ill. Rev. Stat. 1977, ch. 24 1/2, par. 38b1 et seq.) (herein the System) at the time of filing suit. Under the System, the Merit Board, which administers it, is required to pay the prevailing rate of wages to any classification which was receiving it on January 1, 1952. As to other classifications, the Merit Board has discretion as to such payment. "Prevailing rate of wages" is defined in the statute as "the wages paid generally in the locality in which the work is being performed to employees engaged in work of a similar character." Ill. Rev. Stat. 1977, ch. 24 1/2, par. 38b3(3).
Plaintiffs contend that when the Act, the Code, and the System are read together, there emerges a clear legislative intent that there be uniformity of wages among all State employees who perform the same function, whether under the Code or under another set of rules such as the System. Plaintiffs produced an opinion of the Attorney General of Illinois issued May 9, 1978 (Op. Att'y. Gen. S-1359 (1978)) which appears to bolster their position by concluding that the Act does apply to nonacademic university employees.
Defendants claim that if it be read literally, the Act repeals by implication the discretion given to the Merit Board to pay the prevailing rate after January 1, 1952, and that repeal by implication is not favored. They further claim that the opinion of the Attorney General is not well reasoned nor persuasive and that the University of Illinois is ...