Mr. JUSTICE DAILY delivered the opinion of the court:
This appeal from the circuit court of Cook County presents the question of the constitutional sufficiency of section 17-15 of the Illinois Election Code, (Ill. Rev. Stat. 1951, chap. 46, par. 17-15,) which falls within the category of what is sometimes described as "pay-while-voting" legislation. Specifically, the terms of the statute are as follows: "Any person entitled to vote at a general or special election or at any election at which propositions are submitted to a popular vote in this State, shall, on the day
The facts which bring the validity of the statute into question at this time show that plaintiffs, forty-nine in all, were employed at an hourly wage rate by defendant, the Benjamin Electric Manufacturing Company, an Illinois corporation. Prior to the general election of November 4, 1952, each of the plaintiffs requested and was granted a leave of absence for the purpose of voting. On the day in question the polls were open from 6:00 A.M. until 5:00 P.M., whereas the plaintiffs' work schedule was from 8:00 A.M. to 4:30 P.M., and it is stipulated in the record that all of the plaintiffs could have cast their ballots between 6:00 A.M. and 8:00 A.M. without interfering with their scheduled work with the defendant. Instead, however, all chose to vote during the period of absence authorized and it is agreed that each did actually use the time to vote. Thereafter, the defendant paid plaintiffs for the actual hours worked on November 4, but refused to pay for the time they were absent. Although an employer
As a consequence of defendant's refusal to pay for the time of authorized absence, plaintiffs filed this action, based upon the quoted section of the Election Code, to recover the wages they would have earned had they not taken the time off to vote. It should be noted now, to quiet a contention of appellant, that although the act is penal in nature, that in itself does not bar a civil remedy. When a statute is enacted for the protection of a particular class of individuals, a violation of its terms may result in civil as well as criminal liability, even though the former remedy is not specifically mentioned therein. Streeter v. Western Wheeled Scraper Co. 254 Ill. 244; Sloan v. F.W. Woolworth Co. 193 Ill.App. 620; Ballarini v. Schlage Lock Co. 100 Cal.App.2d Supp. 859, 226 Pac.2d 771; State v. International Harvester Co. 63 N.W.2d (Minn.) 547; Olesen v. Retzlaff, 184 Minn. 624, 238 N.W. 12; 1 C.J.S. Actions, sec. 9; Rest. Torts, vol. 2, sec. 286.
In defense to the plaintiffs' complaint, the defendant alleged that section 17-15, insofar as it requires payment of wages for the period of unauthorized absence, is unconstitutional in that it deprives an employer of property without due process of law, denies an employer equal protection of the laws, grants employees a special privilege, and abridges the right to contract. After hearing the cause on a stipulation of facts, the trial court entered judgment for the plaintiffs. Since constitutional issues are fairly involved, appeal has been taken directly to this court.
This is not the first time we have been called upon to consider the validity of pay-while-voting legislation. In People v. Chicago, Milwaukee and St. Paul Railway Co. 306 Ill. 486, a decision rendered in 1923, the defendant corporation was adjudged a misdemeanant for having failed to pay an employee for two hours time spent in voting, in violation of section 25 of an act relating to the manner
The parties to the present action have argued extensively here as to the relative effects of our former decision and of the subsequent action of the legislature in reenacting the pay-while-voting regulation from time to time. It is our opinion, however, that a determination of the questions raised by such contentions is unnecessary at this time. In light of the apparent resurgence of this type legislation and the divergent judicial opinion it has provoked in recent years, together with plaintiffs' assertion, apparently indulged in by the trial court, that the evolution of an expanding police power should now serve to alter the previous views of this court, we think it is incumbent upon us to now re-examine the problem in its entirety. Indeed, in Zelney v. Murphy, 387 Ill. 492, (1944,) where the analogies of the pay-while-voting statute were being discussed, this court said (p. 498): "The growing complexity of our economic interests has inevitably led to an increased use of regulatory measures in order to protect the individual so that the public good is reassured by safeguarding the economic structure upon which the good of all depends."
Plaintiffs have cited to us and quoted extensively from several cases of recent origin which, it is claimed, reject the constitutional objections this court found to the pay
Upon further appeal of the Day-Brite case, the Supreme Court of the United States, in an opinion described by one writer as casting "a withering ray upon Constitutional protection," (47 Northwestern Law Review, 252, 254,) refused to weigh the wisdom of such legislation or to
It has been aptly stated that the basic problem underlying the pay-while-voting regulations is how far the State may go in the exercise of its police power, and its corollary, to what extent will the constitution protect individual rights. Section 2 of article II of the Illinois constitution prevents the taking of private property without due process of law and also has been construed to guarantee the equal protection of our laws. (People v. Lloyd, 304 Ill. 23; Marallis v. City of Chicago, 349 Ill. 422.) These rights, however, are not absolute. The State may, in the exercise of its police power, restrict, regulate or prohibit any and all uses of private property in the interest of public health, safety and welfare. (Midland Electric Coal Corp. v. County of Knox, 1 Ill.2d 200; People v. Weiner, 271 Ill. 74.) The police power, however, while paramount to the rights of the individual, is still restrained by the fundamental principles
In enacting section 17-15 of the Election Code in 1943, the legislature sought to increase election participation, undoubtedly a high and benevolent public purpose under our representative form of government. Assuming the existence of the problem, and there is no showing here to the contrary, the mere finding that it does exist does not permit arbitrary or unrelated means of meeting it to be adopted. (Schroeder v. Binks, 415 Ill. 192.) The relationship and reasonableness of the provision which permits each eligible voter to absent himself from his employment on election days has not, to our knowledge, ever been seriously questioned even though such absence might in itself cause substantial inconvenience and loss to an employer. Indeed, it is not questioned on this appeal. However, the further provision of the section which ordains that no deductions shall be made from any wages or salaries because of such absence, is not so easily justified. Whether pay-while-voting bears a real and substantial relation to
Looking first to the mechanics of the statute, it is to be noted that actual voting is not a prerequisite to payment, for although the employee is granted a leave of absence, he is under no duty whatsoever to vote. Whether any public benefit is derived from such a provision depends upon each employee's good conscience and realization of civic duty. This is the same sense of duty which is still deemed sufficient to cause the housewife, the farmer, the shopkeeper or other self-employed persons to exercise their right of suffrage. Be that as it may, it should be observed, too, that no group in our time has a finer record of election interest and participation than does labor, making it difficult to conceive that the employee now needs an added incentive to perform his obligations as a citizen. In any event, whether the provision in question will achieve the desired result remains so questionable as to cast doubt upon its validity as an exercise of the police power.
Nor do we find that the regulation has any real or substantial relation to the object sought to be obtained. Even though the cost to the employer has been substantial, this court has sustained, as a proper exercise of the police power, legislation dealing with maximum hours, minimum wages, workmen's compensation, unemployment compensation, and the like. (See: Vissering Mercantile Co. v. Annunzio, 1 Ill.2d 108, 112; Zelney v. Murphy, 387 Ill. 492.) In those instances it was necessary to remedy an evil which
In the present case, we find no justification for a view that the problem of decreased election participation has arisen from the master-servant relation. It is not the business or responsibility of the employer to get out the vote, nor does the individual right of suffrage in any manner stem from the employment relation. Undoubtedly, history reflects the one-time necessity of voting regulations for the purpose of safeguarding the right of suffrage against employer coercion. We think, however, at least in this jurisdiction, that such a purpose has become outmoded by modern means of transportation, increased voting hours, shorter working hours, and other contemporary labor developments. Additionally, we find no compelling similarity in pay-while-voting to minimum-wage legislation. As many critics of the legislation have pointed out, it would be distinction enough that under the voting statute an employee is being paid for not working. We should consider too, at this point, that as a direct result of minimum wage legislation, the standard of living of the employee is increased and the labor market is enlarged, thus reducing the burden of public assistance and the problem of public health, to the benefit of employer and employee alike. On the other hand the only direct result of the pay-while-voting legislation is that the employer loses wages and production, and the employee may or may not vote. (See: 47 North-Western
The Court of Appeals of Kentucky, in striking down a similar pay-while-voting regulation in Illinois Central Railroad Co. v. Commonwealth, 204 S.W.2d 973 (1947), made the following observation (p. 975): "The law will not countenance a public maintenance of a private enterprise. Neither should the law demand a private maintenance of a public enterprise. Voting is a public enterprise. But if its maintenance is required by the employer group rather than by the entire, broad, general public, then that amounts to a requirement of private maintenance of a public enterprise." This court has recognized the same principle in Midland Electric Coal Corp. v. County of Knox, 1 Ill.2d 200, and Ohio and Mississippi Railway Co. v. Lackey, 78 Ill. 55, where it was pointed out that burdens created in the public interest should be borne by the public rather than by private interests. We think it has application here, for, by the voting regulation, one class of society, the employer, whether great or small, must subsidize another, though the payor may be in no better position to pay the extra cost of good citizenship. (See: 66 Harvard Law Review, 89.) Such a condition falls within the admonishing words of Mr. Justice Holmes in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415-416; 67 L.ed. 322, 326, that "a strong public desire to improve the public condition does not warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." Inasmuch as we are concerned here with a public problem and a public burden, as distinguished from a problem created by the master-servant relationship, it is our opinion that the regulation is both unreasonable and discriminatory
As was true in this court's previous consideration of the disputed statute, we also find significance in the contention that the disputed portion of the statute creates arbitrary classifications. Section 22 of article IV of the constitution of 1870 requires that a legislative classification of persons subject to a statute must rest on some difference which has a reasonable and just relation to the act in respect to which the classification is proposed, otherwise it will be deemed arbitrary and in violation of the constitutional guaranties of due process and equal protection of the laws. (Larvenette v. Elliott, 412 Ill. 523; Ronda Realty Corp. v. Lawton, 414 Ill. 313.) The regulation in question creates a classification of voters who are paid either wages or salaries as distinguished from the piece-worker, the salesman, the self-employed, and those who work for fees or commissions. There is no indication that wage-earners have been any more lax in voting than any one else and there is no showing that they find it more difficult to find the polls open at a convenient time than has the farmer, the housewife, or others who work during the day. Yet, despite the fact no difference of situation has been shown to exist, it is only the one class of voters which the statute singles out to be paid for voting. The most arbitrary classification is that of those who are chosen to pay this arbitrary class of voters. The selection of payors is not related to anything connected with voting but rests solely on a chance economic relationship. Such a regulation, which applies to some cases and does not apply to other cases not essentially different in kind, cannot be sustained. This was the view of Justice Jackson in his dissenting opinion in the Day-Brite case, when he said: "The discriminatory character of this statute is flagrant. It is obvious that not everybody will be paid for voting
The numerous other authorities cited to us in the plaintiffs' behalf do not, as we construe them, have a persuasive application to the constitutional issues with which we are faced. In People v. Ford Motor Co. 63 N.Y.S.2d 697, the criminal provisions of a similar voting statute were held valid, with little discussion of their constitutional justification. Although the majority opinion stated: "To justify the state in interposing its authority in behalf of the public, in exercise of police power, it must appear that interests of the public generally, as distinguished from those of a particular class, require such interference," it was left for the dissenting judge to point out that the pay-for-voting provision benefits, not the general public, but only a select few.
An amicus curiae herein has called our attention to the recent case of Lorentzen v. Deere Manufacturing Co. 66 N.W.2d (Iowa) 499, in which the Supreme Court of Iowa allowed employees to recover wages for the time spent in voting. This decision was based, however, upon an interpretation of the statute itself. The employer had
It is true that a California appellate court, in Ballarini v. Schlage Lock Co. 100 Cal.App. 859, 226 Pac 2d 771, has also held contrary to our prior decision. On the other hand, Kentucky's highest court has declared a similar provision
Finally, plaintiffs contend that social and economic conditions have changed to such an extent since 1923, that we are now bound to reach a contrary result in this matter. No one will deny that times have changed, but whether the changes justify a decision that an attempted exercise of the police power which was once unconstitutional has now become constitutional is another matter. Pay-while-voting statutes were originally conceived in the period of working days which ranged from twelve to sixteen hours and reflect upon a time when transportation facilities were both slow and meager. In the years that have passed, the working period has been reduced to the point where most employees work eight or less hours a day. Modern transportation facilities now permit travel to and from work in the matter of minutes. Further, labor unions, then in their infancy, now guarantee an employee equal bargaining power with his employer. All of these factors have served to diminish the need for regulation, and to divorce the problem of not voting from the master-servant relationship. If it is still deemed a necessary incentive that employees be paid for voting, we think it is matter to be settled by private agreement rather than by penal legislation which burdens and benefits but a few of those in the community who are affected.
Time, we believe, has served only to strengthen the logic in our earlier opinion. Since that date, the legislature has made no attempt to alter the provision or to reconcile it to our result. In fact, it is not until now, approximately thirty years later, that it has been questioned. Such a decision cannot be lightly ignored. Although the doctrine of
For the reasons stated, we reaffirm People v. Chicago, Milwaukee and St. Paul Railway Co. 306 Ill. 486, and continue to hold that insofar as section 17-15 of the Election Code (Ill. Rev. Stat. 1953, chap. 46, par. 17-15,) requires an employer to pay salary or wages for the released time for voting, it is subject to the constitutional infirmities expressed in that opinion. The judgment of the circuit court of Cook County is therefore reversed.