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02/11/88 the People Ex Rel. E. v. the City of Highland Park

February 11, 1988

THE PEOPLE EX REL. E. ALLEN BERNARDI, DIRECTOR OF LABOR, APPELLANT

v.

THE CITY OF HIGHLAND PARK ET AL., APPELLEES

THE PREVAILING WAGE ACT WAS ENACTED IN 1941, EARLIER VERSIONS HAVING BEEN DECLARED UNCONSTITUTIONAL. (SEE REID

v.

SMITH (1940), 375 ILL. 147; MAYHEW

v.

NELSON (1931), 346 ILL. 381.) SECTION 1 OF THE ACT DECLARES:



SUPREME COURT OF ILLINOIS

520 N.E.2d 316, 121 Ill. 2d 1, 117 Ill. Dec. 155 1988.IL.189

Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Lake County, the Hon. Jack Hoogasian, Judge, presiding.

APPELLATE Judges:

JUSTICE SIMON delivered the opinion of the court. JUSTICE MILLER, Dissenting. MORAN, C.J., and RYAN, J., join in this Dissent.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SIMON

The principal issue in this appeal is whether a home rule municipality must conform to the requirements of "An Act regulating wages of laborers, mechanics and other workers employed in any public works . . ." (Ill. Rev. Stat. 1985, ch. 48, pars. 39s-1 through 39s-12) (Prevailing Wage Act) in seeking bids and awarding contracts for public works projects. The Illinois Department of Labor, through its Director, brought this action in the circuit court of Lake County to enjoin defendant City of Highland Park from awarding a contract for a public works project without first complying with the provisions of the Prevailing Wage Act. The circuit Judge dismissed the action, holding that the city, as a home rule unit, could choose not to follow the Act. The appellate court affirmed that decision (135 Ill. App. 3d 580), and we allowed the Director's petition for leave to appeal (103 Ill. 2d R. 315(a)). This court filed an opinion on November 20, 1986, holding that as an exercise of its home rule authority, Highland Park could abrogate the Prevailing Wage Act. On rehearing and reconsideration of its earlier opinion, this court now concludes that the Prevailing Wage Act addresses issues pertaining to statewide rather than local affairs, and as a consequence, Highland Park had no choice but to comply with the statute's requirements.

The facts in this case are not in dispute. On December 29, 1983, the City of Highland Park issued contract specifications for a public works project involving the George B. Prindle Water Treatment Plant. The plant draws its supply from Lake Michigan, and the project called for an intake line serving the plant to be cleaned and then extended some distance into a deeper part of the lake; the purposes of this work were to improve the quality of the water drawn into the plant and to prevent the intake line from freezing, as it had done in the past, threatening the supply of water to the five communities and 70,000 residents served by the plant. Following an investigation into the matter, the Director filed a complaint on February 10, 1984, for injunctive and other relief. The complaint alleged that the city was in violation of the Act by failing to ascertain the local level of wages or adopt the Department's figures, by failing to specify the prevailing wages in the call for bids, and by failing to inform the bidders that they would be required to pay the prevailing rates to workers on the project. The Prevailing Wage Act requires that wages on public works projects correspond to those paid generally on public works projects in the county. Apparently the city council intended to award the contract at its next meeting to the successful bidder, defendant Durocher Dock & Dredge Corporation, and the circuit Judge granted the Director's motion for a temporary restraining order.

The city and Durocher admitted that the Prevailing Wage Act had not been complied with, but they contended that the city, as a home rule unit, was not required to comply with the Act. The parties stipulated that the city's failure to refer to the Act in the specifications for the project was "neither a negligent omission nor an error" and that "payment of wages involved with and as prescribed by the Act will result in increased costs to the city for the construction of the water intake extension." The parties also stipulated "[t]hat from and after July 1, 1971, the effective date of the Constitution of Illinois of 1970, the City has not and never has taken the steps which it asserts a non-home rule unit must take and which the Department asserts all public agencies must take to comply with the terms, conditions and regulations of the Act."

The circuit Judge later denied the Director's request for a preliminary injunction, dissolved the temporary restraining order that had been issued earlier, and dismissed the Director's action. Finding that the intake extension project for the water-treatment plant was essentially a municipal affair, the circuit Judge reasoned that it was within the scope of the city's home rule authority to decide not to comply with the Prevailing Wage Act in contracting for the work; the court noted too that the legislature had not expressed an intent to preempt home rule authority in this area. The circuit Judge also believed that the city was not required to pass an ordinance to effect an exercise of its home rule authority. The appellate court affirmed the circuit court's decision, relying essentially on the same reasons.

The parties to this appeal have disclosed that the intake extension project in which this controversy is rooted has been completed, and it follows that the injunctions sought by the Director cannot issue. (See Leitch v. Sanitary District (1944), 386 Ill. 433, 440 (injunction denied because "equity will not require the performance of a useless act").) Although this court will dismiss an appeal as moot upon notice of facts not of record (La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 379), the Director's appeal of this case is not moot merely because the injunctions enumerated in his prayer for relief are now too late. There is life in the appeal because our decision could have a direct impact on the rights and duties of the parties. In People v. Lynn (1984), 102 Ill. 2d 267, the defendant challenged the legality of criminal convictions he received without benefit of counsel. This court entertained his appeal even though he had served his sentences because "nullification of a conviction may have important consequences to a defendant." (102 Ill. 2d at 273.) As was true in Lynn, resolution of the Director's appeal will not affect concluded events, but our decision of the issue will "have important consequences" for the parties before the court.

The Director's action was brought pursuant to section 11 of the Act (Ill. Rev. Stat. 1983, ch. 48, par. 39s-11) and asked in addition to injunctive relief for "such other relief as the Court deems just and proper." Section 11 provides in part: "Where objections to a determination of the prevailing rate of wages or a court action relative thereto is pending, the public body shall not continue work on the project unless sufficient funds are available to pay increased wages if such are finally determined . . .." Thus, section 11 contemplates the pendency of litigation even after the contracts have been awarded and the project completed; it establishes a mechanism whereby public works improvements may go forward while workers' rights to possibly greater wages are protected. If the public body chooses to continue the work while a court action is in progress, the public body must have the money to pay workers the difference between their wages and the finally determined prevailing wage applicable in the locale. This action to ascertain the reach of the Prevailing Wage Act in home rule jurisdictions is, should the Act be found to apply, the necessary prerequisite to a determination of whether the wages paid on this project were lower than required and also whether Highland Park must disburse the additional wages which, by proceeding with the intake extension project, it impliedly guaranteed were available if needed. Additionally, a decision in this case will affect the parties by establishing whether the Director is required to publish Durocher's noncompliance in the Illinois Register, thus precluding Durocher from being awarded government contracts in Illinois for two years. (Ill. Rev. Stat. 1983, ch. 48, par. 39s-11a.) In sum, we cannot say that "no real present question involving actual interests and rights" (Chicago City Bank & Trust Co. v. Board of Education (1944), 386 Ill. 508, 520) is before us. Therefore, the Director's appeal is not moot.

Even if the defendants' duties under the Act were no longer controverted, the case would still be decided as one which "falls into the 'capable of repetition, yet evading review' category" of exceptions to the mootness doctrine. (Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231, 236, quoting Sosna v. Iowa (1975), 419 U.S. 393, 399-400, 42 L. Ed. 2d 532, 540, 95 S. Ct. 553, 557.) As demonstrated here, in future cases the public works project giving rise to litigation regarding the Act's coverage in a home rule jurisdiction will likely have been completed -- at least the construction contracts will have been awarded -- prior to a final adjudication of the home rule issue in this court. Considering the public interest in and the importance of the question presented, and the necessity of resolution for the sake of public officials elsewhere in the State who must decide whether their home rule jurisdictions will abide by the Prevailing Wage Act, evading review of this question here and in later cases would be injudicious. (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 622-23.) We refuse to use the mootness doctrine to make de facto rulings that arise simply because construction crews triumph in a race against the State judiciary.

"It is the policy of the State of Illinois that a wage of no less than the general prevailing hourly rate as paid for work of a similar character in the locality in which the work is performed, shall be paid to all laborers, workers and mechanics employed by or on behalf of any and all public bodies engaged in public works." (Ill. Rev. Stat. 1985, ch. 48, par. 39s-1.)

The Act applies "to anyone under contracts for public works," and public works include "all fixed works constructed for public use by any public body, other than work done directly by any public utility company, whether or not done under public supervision or direction, or paid for wholly or in part out of public funds." (Ill. Rev. Stat. 1985, ch. 48, par. 39s-2.) The Act defines public body in the following terms:

"'Public body' means the State or any officer, board or commission of the State or any political subdivision or department thereof, or any institution supported in whole or in part by public funds, authorized by law to construct public works or to enter into any contract for the construction of public works, and includes every county, city, town, village, township, school district, irrigation, utility, reclamation improvement or other district and every other political subdivision, district or municipality of the state whether ...


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