dissenting:
I respectfully dissent. I agree with the majority that a statute does not violate due process as long as it bears a rational relationship to a proper legislative purpose and is neither arbitrary nor discriminatory. However, I do not believe a legitimate purpose exists to the Prevailing Wage Act as amended; nor do I believe that the limiting phrase “on public works” bears a reasonable relationship to the actual and original policy behind the act.
The original Illinois Prevailing Wage Act was one of many prevailing wage acts throughout the country which was enacted during the Depression to combat the economic and social conditions of the times. (See Leader & Janero, Implied, Private Right of Action Under the Davis-Bacon Act: Closing Some Loopholes in Administrative Enforcement, 29 DePaul L. Rev. 793 (1980) (hereinafter Leader); see also Annot., 18 A.L.R.3d 944 (1968).) During that period, widespread unemployment increased the competition among contractors for government employment at a time when the government was required to award its contracts to the lowest bidder. (See Leader, at 795; Ill. Rev. Stat. 1929, ch. 24, par. 129.) In order to capture this limited market, some contractors were employing migrant workers and paying them wages far below the rate paid locally. Local workmen and contractors were unable to compete with this migrant labor force. (Leader, at 795-96; see also Annot., 18 A.L.R.3d 944 (1968).) The prevailing wage acts were attempts by the various State and Federal legislatures to resurrect the depressed labor market by prohibiting wage differentials from becoming a major competitive advantage in bidding on government construction projects. (Leader, at 795-96; Annot., 18 A.L.R.3d 944 (1968).) Thus, the acts required taxpayers to pay increased wages to public works employees so that public wages would equal those paid generally in the community. In Bradley v. Casey (1953), 415 Ill. 576, 585-86, 114 N.E.2d 681, the court found that under the Illinois act the increased burden on the taxpayer and contractor was reasonable “when balanced against the advantage to the state of having the work performed under conditions which give some assurance that the work will be completed without interruptions or delay by workmen of average skill.”
The legislature’s redefinition in 1961 of “prevailing wages” so as to limit it to wages paid only to public works employees had the corresponding effect of incorporating by reference the new definition into the policy provision of the Act. (Ill. Rev. Stat. 1961, ch. 48, pars. 39s—1, 39s—2.) Thus, when the statute is construed as a whole (see Jahn v. City of Woodstock (1981), 99 Ill. App. 3d 206, 425 N.E.2d 490), the current policy of the Act as amended provides for the equalization of wages paid for similar jobs within only the public works sector itself. The result is a separate rate of pay for public workers which is unresponsive to the market generally and is allegedly 20% to 30% higher than the wages paid in the private sector. The reasoning to give some assurance that the work would be completed without delay by workmen of average skill may have been an appropriate justification when the Act was interpreted to bring public workers up to standards in the private industry. However, where the legislation as amended and applied provides for wages roughly 30% over private industry in the same locality, can we say that this result is necessary to assure that the work will be completed diligently by workers of average skill? In other words, there is a rationale in paying like wages in a given locality, but does the same reasoning apply so that public employees be paid over and above workers in a given locality? I think not. I am cognizant of the principle of statutory interpretation that a law does not violate due process as long a it bears a rational relation to a proper legislative purpose and is neither arbitrary nor discriminatory. (Kidd v. Industrial Com. (1981), 85 Ill. 2d 534, 538, 426 N.E.2d 822; Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App. 3d 722, 425 N.E.2d 522.) However, I find no legitimate legislative purpose in creating a self-perpetuating financial arrangement.
I am mindful of the caveat that the courts should not substitute their judgment for that of the legislature. (Kidd v. Industrial Com. (1981), 85 Ill. 2d 534, 538, 426 N.E.2d 822; Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 454, 389 N.E.2d 529.) However, just because the legislature has legislated does not mean that analysis must end. Otherwise no statute could ever be found to be arbitrary. (See United States R.R. Retirement Board v. Fritz (1980), 449 U.S. 166, 187, 66 L. Ed. 2d 368, 383, 101 S. Ct. 453, 465 (Brennan, J., dissenting).) I have difficulty determining what the purpose of the amendment to section 2 is, other than to lock in one class of worker to a higher wage scheme to the detriment of the taxpayer and those working in the private sector. Would it not be possible that a worker on a public project could receive many times what his counterpart in the private sector is receiving? If we say that the original intent of the act was to guarantee to the public the services of workers of average capability, this new amendment should guarantee the cream of the crop.
I therefore conclude that the original purpose of the act remains intact and that the limiting phrase “on public works” bears an unreasonable relationship to that purpose. (Ill. Rev. Stat. 1981, ch. 48, pars. 39s—1, 39s— 2; cf. Anderson v. County of Jo Daviess (1980), 81 Ill. App. 3d 354, 401 N.E.2d 265, where we found no unconstitutional delegation of authority in the phrase “on public works.”) The purpose of equalizing wages in the public and private sectors of the economy can never be achieved if in ascertaining the general prevailing wage public bodies may only inquire into wages paid on public works projects. I would therefore hold that section 2 of the Prevailing Wage Act, insofar as it purports to limit such an inquiry to only public works wages and results in payment of wages up to 30% higher than those in the private sector, is unconstitutional as both a denial of due process and equal protection.