THIRD DIVISION

								 FEBRUARY 21, 2001

1-00-0226

THE PEOPLE ex rel.  			) Appeal from the

THE DEPARTMENT OF LABOR,			) Circuit Court of

						     ) Cook County

							)	

	Plaintiff-Appellant, 		) 

							)

		v.					)

							)

K. REINKE, JR. AND COMPANY/REINKE	)  

INSULATION and KARL REINKE,		)

JR., Indiv. and in His Capacity	)  

as Company President,			)  Honorable Richard

							)  A. Siebel, Judge

	Defendants-Appellees.		)  Presiding.

	JUSTICE CERDA delivered the opinion of the court:

	Plaintiff, the People of the State of Illinois ex rel. the Illinois Department of Labor, appeals from the dismissal of its

complaint seeking overtime compensation on behalf of 27 employees

of defendant K. Reinke, Jr. & Company/Reinke Insulation.  Also sued was defendant Karl Reinke, Jr., individually and in his capacity as company president.  The issue on appeal is whether

the legislature intended any limitations period to apply to

actions that are brought by the State on behalf of employees

pursuant to section 12(b) of the Minimum Wage Law (820 ILCS

105/12(b) (West 1998)).  We find that no statute of limitations applies to plaintiff's complaint, and we reverse and remand.

	FACTS

	On April 10, 1998, plaintiff, the People of the State of Illinois, filed a complaint against defendants, alleging that defendants failed to comply with the provisions of the Minimum Wage Law by not paying 27 employees time and a half for hours

worked after 40 hours per week.  The total amount of compensation allegedly due was about $29,000.  The relevant time period was

July 1, 1990, through June 22, 1993.  

	Defendants filed a second motion to dismiss the complaint in which they argued that the applicable statute of limitations was

five years under section 13-205 of the Code of Civil Procedure

(735 ILCS 5/13-205 (West 1998)).  

	On June 23, 1999, the trial court entered a memorandum order 

finding that section 12(b) actions were subject to section 13- 205.  Therefore the only claims that could be pursued were those

dating from the period of April 10, 1993, through June 22, 1993.  

	On December 16, 1999, the remaining claims that were timely

filed were dismissed pursuant to settlement.  

	On January 14, 2000, plaintiff filed a notice of appeal from 

the June 23, 1999, and December 16, 1999, orders.  Plaintiff in its brief appears to only contest the former order; plaintiff does not argue that the trial court erred in entering the latter

order.

	 	ANALYSIS 	

	Plaintiff argues that its direct actions under section 12(b) of the Minimum Wage Law for wage underpayments are not governed

by any statute of limitations.  

	While section 12(a) of the Minimum Wage Law contains a three-year statute of limitations, there is none in section

12(b): 

			"(a) If any employee is paid by his employer less

than the wage to which he is entitled under the

provisions of this Act, the employee may recover in a

civil action the amount of any such underpayments

together with costs and such reasonable attorney's fees

as may be allowed by the Court, and any agreement

between him and his employer to work for less than such

wage is no defense to such action.  At the request of

the employee or on motion of the Director of Labor, the

Department of Labor may make an assignment of such wage

claim in trust for the assigning employee and may bring

any legal action necessary to collect such claim, and

the employer shall be required to pay the costs

incurred in collecting such claim.  Every such action

shall be brought within 3 years from the date of the

underpayment.  Such employer shall be liable to the

Department of Labor for 20% of the total employer's

underpayment and shall be additionally liable to the employee for punitive damages in the amount of 2% of

the amount of any such underpayments for each month

following the date of payment during which such

underpayments remain unpaid. ***

			(b) The Director is authorized to supervise the

payment of the unpaid minimum wages and the unpaid

overtime compensation owing to any employee or

employees under Sections 4 and 4a of this Act and may

bring any legal action necessary to recover the amount

of the unpaid minimum wages and unpaid overtime

compensation and an equal additional amount as punitive

damages, and the employer shall be required to pay the

costs.  Any sums thus recovered by the Director on

behalf of an employee pursuant to this subsection shall

be paid to the employee or employees affected.  Any

sums which, more than one year after being thus

recovered, the Director is unable to pay to an employee

shall be deposited into the General Revenue Fund."  820

ILCS 105/12 (West 1998).

	Three districts of the appellate court have found that the

three-year statute of limitations in section 12(a) does not apply

to the action that the Department of Labor can bring under

section 12(b).  People ex rel. Department of Labor v. Soccer Enterprises, Inc., 302 Ill. App. 3d 481, 484, 707 N.E.2d 108 (1st Dist. 1998); People ex rel. Martin v. Smith, 205 Ill. App. 3d 553, 557, 563 N.E.2d 1170 (4th Dist. 1990); People ex rel. Martin v. Schwartz Oil Field Servicess, Incv.., , , 203 Ill. App. 3d 903, 906, 561 N.E.2d 201 (5th Dist. 1990).

	In contrast, an earlier First District case, Amigleo v. Bernardi, 175 Ill. App. 3d 449, 458, 529 N.E.2d 1020 (1988), held that a logical interpretation of section 12 would be to apply the

three-year statute of limitations of section 12(a) to section

12(b).  Amigleo was a mandamus action to compel the Department of Labor to prosecute plaintiffs’ wage claims in which plaintiffs sought an injunction against the Department's policy to limit its wage collections to claims that were not more than two years old. 

Amigleo held that the trial court properly refused to issue a writ of mandamus because the Department's powers were only discretionary and because there was no injustice to plaintiffs as

they failed to institute their own timely suit under section

12(a).  Amigleo, 175 Ill. App. 3d at 456.  The court's statement concerning the applicability of the statute of limitations to

section 12(b) was in the context of a discussion of plaintiffs'

further argument that the Department's two-year policy was

unreasonable.  

	Soccer, 302 Ill. App. 3d at 485, a First District case, found that if Amigleo had any precedential value, it was limited because the Department of Labor had since abandoned its policy of

instituting unpaid wage collections to a two-year period. 

Soccer, 302 Ill. App. 3d at 485, citing with approval Smith, 205 Ill. App. 3d at 558 (which found that Amigleo's interpretation of section 12 was dicta).  Whether or not we agree with either of these two reasons for not following Amigleo on the issue of the statute of limitations, we believe that Soccer has effectively overruled Amigleo on this issue.  

	The Illinois Code of Civil Procedure in section 13-205

provides as follows:

			"Except as provided in Section 2-725 of the

'Uniform Commercial Code' *** and Section 11-13 of 'The

Illinois Public Aid Code', *** actions on unwritten

contracts *** and all civil actions not otherwise

provided for, shall be commenced within 5 years next

after the cause of action accrued."  735 ILCS 5/13-205

(West 1998).

	As the three-year statute of limitations of section 12(a)

does not apply to section 12(b), the issue is whether the

legislature by its omission of a limitations period meant to

adopt the catchall five-year statute of limitations for “all

civil actions not otherwise provided for” contained in section

13-205 or whether it meant that no statute of limitations was

applicable.  The cases finding that no statute of limitations

applied to section 12(b) do not address the issue whether section

13-205 applied.  Soccer, 302 Ill. App. 3d 481; Smith, 205 Ill. App. 3d 553; Schwartz, 203 Ill. App. 3d 903.

	Our standard of review of a dismissal pursuant to section 2- 619 is de novo because this issue concerns statutory interpretation.  First Bank & Trust Co. v. King, 311 Ill. App. 3d 1053, 1059, 726 N.E.2d 621 (2000).

	The overriding objective in interpreting a statute is to

ascertain and give effect to the intent of the legislature.  

Roser v. Anderson, 222 Ill. App. 3d 1071, 1075, 584 N.E.2d 865 (1991).  To ascertain the legislature's intent, we first look to

the plain language of the statute.  Advincula v. United Blood Services, 176 Ill. 2d 1, 17, 678 N.E.2d 1009 (1996); Burnett v. Safeco Insurance Co., 227 Ill. App. 3d 167, 173, 590 N.E.2d 1032 (1992).  In addition to the language chosen by the legislature,

the court should consider the reason for the law, the evil to be

remedied, and the purpose to be obtained thereby.  Roser, 222 Ill. App. 3d at 1075.  

	The omission of an explicit provision on the inapplicability of the statute of limitations to section 12(b) actions could be

based on either one of two assumptions by the legislature: (1)

that the omission of a statute of limitations in a statute

establishing a cause of action makes section 13-205 operative; or

(2) that no statute of limitations is applicable to actions

brought by the government to assert a right belonging to the

general public.

	Some support for the position that the legislature was

acting on the second assumption is found in a reference in

another statute to the general inapplicability of statutes of limitation to the State.  Section 13-121 of the Code of Civil Procedure states in part that “the rule that the State of

Illinois is not bound by acts of limitations shall not apply" to

the limitation on claims to real estate.  735 ILCS 5/13-121 (West 1998).  The legislature's explicit reference to this "rule"

indicates that it believed that a section 12(b) action would be

immune from statutes of limitation and that the statute of

limitations in section 13-205 would not therefore apply by

default.

	We recognize that there is no rule that the State is never

bound by statutes of limitations.  Under City of Shelbyville v. Shelbyville Restorium, Inc., 96 Ill. 2d 457, 462, 451 N.E.2d 874 (1983), the determination whether a government’s action is immune

from a statute of limitations depends on whether the right sought

to be asserted is a right belonging to the “general public”

rather than to the government or to “some small and distinct

subsection of the public at large.” 

	Further support for concluding that no statute of limitations was intended is found in the fact that a case that

was decided several years ago found that governmental immunity

precluded application of a statute of limitations to the

Department of Labor’s action on behalf of former employees to

recover unpaid vacation leave benefits and statutory penalties. 

In People ex rel. Martin v. Lipkowitz, 225 Ill. App. 3d 980, 985, 589 N.E.2d 1892 (1992), the action was brought pursuant to the Illinois Wage Payment and Collection Act (Ill. Rev. Stat. 1987,

ch. 48, par. 39m-11), under which the Department of Labor had the power to take assignments of wage claims and to prosecute actions

for the collection of wages for persons financially unable to

prosecute such claims.  The court found that the Director’s

action belonged to the public because the public had an interest

in enforcing the Illinois Wage Payment and Collection Act. 

Lipkowitz, 225 Ill. App. 3d at 985.

	Although plaintiff argues that Lipkowitz did not involve an action in the Department of Labor’s “own right,” the purpose of

the Department's action in Lipkowitz on behalf of aggrieved employees was to enforce public policy.  Lipkowitz analogized to the Minimum Wage Law:  “Enforcing the public policy underlying the [Illinois Wage Payment and Collection Act] inures to the

benefit of Illinois workers and taxpayers in precisely the way

that the [Minimum Wage Law] does.”  Lipkowitz, 225 Ill. App. 3d at 985.  Lipkowitz's holding that there was immunity from statutes of limitation would indicate to the legislature that

similarly no statute of limitations would apply to section 12(b)

actions.    

	We believe a section 12(b) action asserts a right belonging

to the general public.  Section 2 of the Minimum Wage Law states

that the legislature was concerned about the existence of

"conditions detrimental to the maintenance of the minimum

standard of living necessary for the health, efficiency and general well-being of workers."  820 ILCS 105/2 (West 1998). 

Section 2 further stated that those conditions imposed upon

taxpayers the "unnecessary burden" to assist workers.  820 ILCS

105/2 (West 1998).  The legislature likely believed that an

action by a State agency to enforce compliance with a wage law

involved a public right and was immune from statutes of

limitation.    

	A review of the history of the amendment of section 12 of the Minimum Wage Law is an indication that the legislature did

not intend to have a statute of limitations for direct actions by

the Director.  In 1971 the legislature enacted the law for

actions by or on behalf of the employee.  Ill. Rev. Stat. 1971,

ch. 48, par. 1012.  The law did not give the Director the right

to bring an action in his own right.  There were no limitations

provisions.

	In 1984 the legislature amended the section to include a

time limitation period for employees for their own actions.  Ill.

Rev. Stat. 1983, ch. 48, par. 1012(a).  For the first time the Director was given the power to file an action in his own right

and without any time limitations.  Ill. Rev. Stat. 1983, ch. 48,

par. 1012(c).

	In 1986 the legislature amended the section to again contain

two subsections.  Ill. Rev. Stat. 1987, ch. 48, par. 1012.  The

Director no longer had a right of assignment from an employee to

enforce a private right.  The employee's private right of action was subject to a three-year statute of limitations.  Ill. Rev.

Stat. 1987, ch. 48, par. 1012(a).  Actions by the Director in his

own right contained no limitations provision.  Ill. Rev. Stat.

1987, ch. 48, par. 1012(b).

	The section was amended in 1990 to grant the Director the

right to accept an assignment by an employee and to file an

action on behalf of the employee.  Ill. Rev. Stat. 1991, ch. 48,

par. 1012(a).  Every action under subsection (a) was subject to a

three-year statute of limitations.  Ill. Rev. Stat. 1991, ch. 48,

par. 1012(a).  Under subsection (b) the Director could bring an

action in his own right again without time limitation.  Ill. Rev.

Stat. 1991, ch. 48, par. 1012(b).  This is the version of the

section which is applicable to this case.  

	As can be seen, the history of this section is a strong

indication that our legislature never intended to provide for a

statute of limitations for lawsuits filed by the Director under

subsection (b).  The legislature however has provided for a

statute of limitations for actions filed under subsection (a).

	We further note that the legislature did not amend section 12(b) after cases were decided that held that no statute of

limitations applied.  See Fink v. Ryan, 174 Ill. 2d 302, 308, 673 N.E.2d 281 (1996) (the legislature is presumed to act with knowledge of the prevailing case law in enacting amendment).  The legislature can amend a statute if it intended a different

construction than a court decision has given the statute.  In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 387-88, 604 N.E.2d 929 (1992). 

	Defendants argue that no statute of limitations in section 12(b) is inconsistent with section 8's requirement that employers

keep pay records for employees for a minimum of three years (820

ILCS 105/8 (West 1998)).  However, a five-year statute of limitations, which defendants urge applies, is also inconsistent with the three-year minimum record -keeping time period.  In light

of the legislature's silence in face of cases finding that no

statute of limitations was intended, we are not persuaded that

section 8 indicates the applicability of section 13-205.  

	We also find that, by the omission of a limitations period in a statute conferring a cause of action on the State, it is

more likely that the legislature intended to indicate that no

statute of limitations applied than it is likely that the legislature intended that section 13-205 was to apply by default.  	We have considered the remainder of defendants' arguments on the statute of limitations issue and find them unpersuasive.

	The June 23, 1999, judgment is reversed, and the cause is remanded.

	Reversed in part and remanded.

	HALL, P.J., and WOLFSON, J., concur.