dissenting:
Determining whether the City of Highland Park, a home rule unit of local government, should follow the Prevailing Wage Act (Ill. Rev. Stat. 1985, ch. 48, pars. 39s — 1 through 39s — 12) in renovating its municipal water-treatment plant is in essence a legislative judgment, and therefore one that is better resolved by the legislative bodies of this State. For those reasons, I respectfully disagree with the result reached by the majority.
Notably, the Illinois Constitution provides the General Assembly with the tools necessary for preempting home rule activity in this area. The legislators have not acted, however, and our function is not to act for them. Article VII, section 6, of the 1970 Constitution provides, in pertinent part:
“(g) The General Assembly by a law approved by the vote of three-fifths of the members elected to each house may deny or limit the power to tax and any other power or function of a home rule unit not exercised or performed by the State other than a power or function specified in subsection (£) of this Section.
(h) The General Assembly may provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit other than a taxing power or a power or function specified in subsection (l) of this section.
(i) Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State’s exercise to be exclusive.” (Ill. Const. 1970, art. VII, §§6(g), (h), (i).)
Sections 6(j) and 6(k) provide similar rules on how the legislature may limit the amount of debt that home rule units may incur; subsection (£), referred to in the quoted provisions, pertains to local improvements by special assessment and local taxes for special services and is not relevant here. (Ill. Const. 1970, art. VII, §§6(j), (k), (l).) The legislature’s readiness to use the preemption provisions in the area of labor law is apparent. For example, the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1985, ch. 48, pars. 1601 through 1627) expressly preempts local activity in that field. See Ill. Rev. Stat. 1985, ch. 48, par. 1615(c).
In usurping the legislature’s role, the majority ignores the admonition of Professor David Baum, who served as legal counsel to the committee responsible for drafting the home rule provisions of the current State constitution. Professor Baum believed that a broad preemption rule — like that applied by the majority in this case — was inconsistent with the home rule provisions in article VII, section 6; taken together, sections 6(g), 6(h), and 6(i) provided, in Baum’s view, a simple and useful system for resolving conflicts between State statutes and home rule activity. (Baum, A Tentative Survey of Illinois Home Rule (Part I): Powers & Limitations, 1972 U. Ill. L.F. 137, 154-55.) He noted that the purpose of the various provisions in section 6 was “to eliminate or at least reduce to a bare minimum the circumstances under which local home rule powers are preempted by judicial interpretation of unexpressed legislative intention.” (Baum, A Tentative Survey of Illinois Home Rule (Part II): Legislative Control, Transition Problems, & Intergovernmental Conflict, 1972 U. Ill. L.F. 559, 571.) For that reason, Professor Baum believed that the courts should play only a limited role in resolving even direct conflicts between State law and local activity. Discussing possible methods of resolving those conflicts, Professor Baum wrote:
“One possible approach is to look back to section 6(a) which confines home rule power to matters pertaining to the affairs and government of the home rule unit. Perhaps a court, when faced with unavoidable state-local conflict, should determine whether the subject matter is of statewide importance, or rather pertains to local affairs. If the latter, the home rule unit would prevail; if the former, the state would prevail. The difficulty with this approach is that it is similar to that employed in other states and thus was not favored for Illinois by the drafters of the constitution. Furthermore, it does not take account of the fact that the state legislation always can prevail, if the legislature specifically so provides and thereby complies with section 6(h). Since the state always can vindicate its interests by legislating in the proper form, it seems unwise to sustain state legislation at the expense of home rule ordinances except when a state statute is in the required form or in those few cases where vital state interests would be sacrificed by permitting the local legislation to prevail until the next session of the General Assembly.” Baum, A Tentative Survey of Illinois Home Rule (Part IT): Legislative Control, Transition Problems, & Intergovernmental Conflict, 1972 U. Ill. L.F. 559, 573.
In this case, however, the majority has simply substituted its judgment for that of the legislature, fearing that a decision in favor of home rule authority would affect the calculation of prevailing wage rates for Lake County and would undermine a number of labor laws that are applicable on a statewide basis. The first concern is exaggerated; the second is unfounded.
Highland Park’s action here would have only an incidental effect, if any, on the computation of prevailing wage rates for Lake County. The majority’s fear in this regard would be realized only if the wages paid on the renovation project here were used in calculating an average of the wages paid on all public works projects in the county. The Act requires that the public body, or the Department, ascertain the prevailing wage rate for the locality but does not specify a particular method for doing so. (See Ill. Rev. Stat. 1985, ch. 48, par. 39s — 4.) Thus, it is not clear what effect the wages paid in this case would have on the county’s prevailing rate.
Moreover, a decision in favor of home rule authority in this case would not threaten any of the valuable ameliorative labor laws cited by the majority (121 Ill. 2d at 14-15). In sharp contrast to the Prevailing Wage Act, those other labor laws provide a fixed minimum standard applicable throughout the State to all employees in the State. The Prevailing Wage Act is different: it applies only to projects initiated by public bodies, and the pay rates determined under the Act may vary from locality to locality.
The question presented by this case poses difficult choices for the General Assembly as well as for the home rule units of local government; like all other public bodies, the legislature and the home rule units face competing demands in resolving matters of public policy. Whether home rule units should be required to comply with the Prevailing Wage Act, and, if not, whether they should follow it anyway, is at heart a legislative concern, and therefore one that should be resolved by the General Assembly or, in the absence of statutory preemption, by the home rule units themselves. I do not believe that it is necessary, or advisable, for this court to make that important decision for them. For those reasons, I respectfully dissent.
MORAN, C.J., and RYAN, J., join in this dissent.