Reid v. Smith , 375 Ill. 147 ( 1940 )

We cannot agree with the reasoning or conclusion reached in the majority opinion. The Prevailing Wage act was made to cover public works contracts entered into by or on behalf of the State, any county, city, town, township, district or other political subdivision of the State. Plaintiff's right to bring the action is based upon the allegation that he has paid taxes into the motor fuel tax fund and that the application of the Prevailing Wage act will bring about a misappropriation of such tax fund. The right a taxpayer has to enjoin the misappropriation of public funds arises from the equitable interest he has in the funds and his liability to replenish the public treasury for deficiency caused by such misappropriation. (Fergus v. Russel, 270 Ill. 304;Jones v. O'Connell, 266 id. 443.) The statute which authorizes the collection of motor fuel tax directs its apportionment, one-third to the Department of Public Works and Buildings, one-third to the counties and one-third to the several municipalities of the State. (Ill. Rev. Stat. 1939, chap. 120, par. 424.) After the tax has been apportioned and allocated, it is available to the several counties and municipalities for the purposes stated in the act. Plaintiff's equitable ownership of the tax might be traceable to the fund held by the counties and municipalities in the State but that is not sufficient. Before he would have the right to invoke the aid of a court of equity to enjoin expenditures by the officials of a county or municipality, it must appear by allegation that there has been or is about to be an expenditure by the public officials of such county or municipality. The bridge in question is to be built by the State and the allegations of the complaint refer solely to that part of the tax which has been apportioned to the Department of Public Works and Buildings. Plaintiff's right to claim equitable relief is therefore limited to that part of the tax which was apportioned to the said department. It is well settled that the validity of a statute may not be invoked by one who is not affected by its invalidity. (People v. James, 328 Ill. 262; People v. Diekmann, 285 id. 97; Brand v. Brand, 252 id. 134.) Plaintiff's right to seek equitable aid therefore narrows the consideration of the validity of the Prevailing Wage act as it refers to the construction of public works in which the State, alone, is interested and in which the State, acting through some governmental agency, is to be one of the contracting parties.

The initial premise from which the constitutionality of a legislative enactment must be determined is that the legislature has the power to pass any law not expressly prohibited by the constitution. The legislature is not a creature of delegated authority and the constitution is but a limitation upon its general powers of legislation. No proposition is better settled than that the legislature possesses every power not delegated to some other department or to the Federal government and not denied to it by the Federal or State constitutions. Gillespie v.Barrett, 368 Ill. 612; Fenske Bros. Inc. v. Upholsterers Union, 358 id. 239; Greenfield v. Russel, 292 id. 392.

This court's functions are purely judicial and it is not concerned with the wisdom of a legislative act nor with the social or economic policy that underlies its enactment. Questions of policy are for the legislature, and if an act does not clearly violate some express prohibition of the constitution it should be upheld as being within the province of the legislature.

It is said the act confers upon the officials letting the contract the arbitrary power to fix wages without having any standards or rules set out in the law to guide them or restrain their discretion and that, therefore, the act is unconstitutional as delegating the legislative power to administrative officers.

The power to make laws is a sovereign power vested exclusively in the legislature. It cannot be delegated. (Parks v.Libby-Owens-Ford Glass Co. 360 Ill. 130; People v. Gill, 358 id. 261; Welton v. Hamilton, 344 id. 82.) However, before a court can properly hold a statute void as being an unconstitutional delegation of legislative power, it must clearly appear that the power delegated was purely legislative. The legislature possesses many powers which it may properly exercise through legislative enactment or which it may delegate to administrative agencies. The decisions of this court have sustained the exercise of such power in numerous cases. The constitution has never been regarded as denying to the legislature the resources of flexibility and practicability necessary to enable it to carry out its functions. It cannot delegate the exercise of its discretion as to what the law shall be, but it may delegate discretionary powers in connection with the administration of the law. (Milstead v.Boone, 301 Ill. 213; Schireson v. Walsh, 354 id. 40.) The doctrine is well established, and has been frequently reiterated by this court, that if a statute contains a complete declaration of the legislative will, — that is, if it establishes a sufficient and intelligible basic standard or sets out a definite and certain policy and rule of action for the guidance of the administrative agency — the delegation of powers incidental to the practical administration of the law is not prohibited. (People v. Sholem,294 Ill. 204.) It has been held that the legislature can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. Block v. City of Chicago, 239 Ill. 251; Arms v. Ayer, 192 id. 601.

The standard on which the Prevailing Wage act is premised is: "The general prevailing rate of per diem wages in the locality in which the work is to be performed for each craft or type of workman or mechanic needed." The majority opinion holds that the "general prevailing rate of per diem wages" is without existence in fact and is undefined by the act; that it does not furnish a standard for ascertaining such wage and that it is, therefore, an unconstitutional delegation of power. Common experience verifies the existence of a prevailing wage rate in each community for each craft or type of workman. An engineer, construction contractor or a public official charged with the duty of letting public contracts can readily determine the general prevailing rate of per diem wages in each locality. In the making of private contracts or in the letting of public contracts, the prevailing rate of wage for each craft or type of workman or mechanic forms the basis of every estimate of the cost of such construction work.

The Prevailing Wage act confers no authority to arbitrarily fix a wage. It is a declaration of policy by the legislature that the State shall pay not less than the wage which prevails in the community on its public work contracts. The prevailing wage is defined by the law and no power is given to the administrative body to determine what the law shall be. The discretion to be exercised by it is an administrative discretion to determine the fact as to what is the prevailing wage. There is neither a delegation of legislative nor judicial power in such enactment. City of Chicago v. Washingtonian Home, 289 Ill. 206; People v.Burskirk, 279 id. 203.

In the majority opinion it is said the prevailing rate of perdiem wages in a locality is without meaning in fact, and the act in question is compared with the act of 1931, which was held invalid in Mayhew v. Nelson, 346 Ill. 381. This court construed the act of 1931 in the Mayhew case as requiring the public body to fix a prevailing rate of wage based upon the skill of the individual laborer and it also held that no standard of skill was specified in the act. The 1939 act is distinguishable from the 1931 act in that the public body in the 1939 act is required to fix the rate for each craft or type of workman or mechanic needed in the execution of the contract. The public body determines the skill, experience and ability of the workmen who usually perform a certain type of labor and it is the skill, ability and experience of the group that forms the basis for the ascertainment of the prevailing rate of wage for that character of work. Such classification is in common use in all kinds of construction work and the standard and character of workmen in the various groups in any locality can be readily ascertained by any public body authorized to let contracts for public work.

It is claimed that the words "prevailing rate" are vague and indefinite, and that no standard is prescribed by which it can be ascertained. Webster's Dictionary defines the word "prevailing" as prevalent, most frequent, generally current, widespread. From this definition, it is apparent the prevailing rate is not necessarily the highest nor the lowest rate paid, but is the rate generally and most frequently paid for the particular type of work in the locality in which the construction work was to be performed. The geographical area from which the rate must be determined is prescribed by statute. The ascertainment of the prevailing rate of wage in such geographical area involves the determination of a question of fact which may be ascertained in the exercise of discretion and judgment in the same way that public officials determine the market or worth of any item of property or labor which they are about to procure for such use without any such statute.

It is claimed that the act of 1939 is unconstitutional and void for the further reason "that it deprives the taxpayer of the benefit that might accrue by the exercise of the right of contract between the employer and employee engaged in the construction of public work." The discussion in the majority opinion on this point is based upon two unrelated premises, neither of which is well founded. The first proposition is that the act impairs the freedom of contract as guaranteed by the State and Federal constitutions. The act is a legislative regulation of a contract to be entered into with the State as one of the contracting parties. The argument advanced assails the right of the State as one who is having the work done to fix a minimum wage that shall be paid by the contractor to workmen and mechanics employed in the various types of construction work. No one could question the right of an individual to prescribe a minimum wage a contractor must pay the laborer employed upon his work and to require the contractor to bind himself to make such payment by express stipulation. It would seem elementary that if the individual had the right to make such requirements in a contract, the State, in the exercise of its inherent rights as a sovereign, would have the same power, subject only that it could not infringe upon the rights of the individual.

It is also suggested the statute restricts the contractor and laborer in their freedom to contract. No contractor has any right to demand that he be permitted to enter into a contract to work for the State. (Atkins v. Kansas, 191 U.S. 207, 48 L. ed. 148;Heim v. McCall, 239 id. 175.) The State, like an individual, proposes to make a contract for the construction of a public work, and prescribes the terms, including the minimum wages to be paid upon which a contract will be made. The contractor is at liberty to accept or reject as he may elect. If he accepts, it is upon the terms the State has proposed. If he rejects, he has not been deprived of any constitutional right. The State has the power to prescribe the terms, including the power to fix a minimum wage rate, and the requirement in the statute that the contractor shall agree with the State to pay such wage rate is no greater limitation upon the power to contract than that the contractor shall use a certain make of material and certain kind of equipment. The laborer who seeks to be employed upon the construction work stands in the same relation to the work to be done and to the State as does the contractor. The plaintiff is not a contractor or laborer and is not entitled to raise a constitutional question that does not affect his interest. The act does not violate the contract clause of either the State or Federal constitutions.

The majority opinion considers the question as to whether the requirement of a law that the contractor adopt the prevailing wage fixed by the body awarding the contract so affects the spending of public money as to warrant an interference by a taxpayer. The holding is that any statutory requirements which have the effect of materially increasing the cost of public works are illegal. The cases relied upon do not support the proposition for which they are cited. The Adams, Holden and Ritchie cases were decided on constitutional principles different from those urged in this case. The Fiske case did not decide the point and the statement in the opinion that an eight-hour provision in the specifications in a public work contract to be let by a municipality is an unconstitutional infringement upon the freedom of contract between the employer and employee is mere dictum. The court had before it only the specification in the public contract while here we are considering a statute which declares a legislative policy. The McChesney and Glover cases, citing thedictum of the Fiske case, are based upon the proposition that such requirements are against public policy, illegal and void because they tend to increase the cost of the work and make the bids less favorable to the public.

The distinction between those cases and the one at bar is self-evident. The courts, in the absence of statute, can make a finding as to public policy of the State and can declare contracts made in violation of such policy to be illegal and void but the declaration of public policy is primarily a function of the legislature. In the cases cited in the majority opinion and above referred to, there was a declaration of a public policy as determined by the court and not by legislative enactment. It is well settled that the finding of the court as to matters of public policy will stand only so long as it is not in conflict with the declared legislative policy. It is also within the province of the court, before legislative enactment, to hold that any provision of a public contract which would tend to increase the cost of the work to the taxpayer was against public policy, illegal and void, but when the legislature declared that it is the public policy of this State that the State, in letting its public contracts, shall require the payment of wages prevailing in the community and that the State shall not be a party to sub-standard wage cutting, this declaration of policy supersedes any finding of public policy previously made by the court. It might be inferred from the majority opinion that any requirement of a public contract which tends to increase the cost of work to the public is illegal and void but this court has held that a taxpayer has no constitutional or statutory right to require that the lowest bid be accepted in all cases or that the work be done as cheaply as possible. McGovern v. City of Chicago, 281 Ill. 264.

For the reasons stated, the reasoning adopted in the majority opinion, and the conclusions reached, are contrary to well-settled principles of law.