State of Arizona v. Ash , 53 Ariz. 197 ( 1939 )

I concur in the judgment because one of the grounds upon which it is based, namely, that the work of a prison guard is not manual or mechanical labor within the meaning of the Minimum Wage Law, is sound and necessitates the conclusion reached. It is clear that the work of such employees is not mechanical labor within the purview of this law and the definitions found in the dictionaries and the decisions of the courts of "manual labor" seem to exclude it from that term also.

The second ground assigned for reversal, however, is that the Minimum Wage Law was enacted for the benefit of those workers who are paid "wages" as distinct from those receiving "salaries," but, in my opinion, the difference between these two words has little, if any, bearing on the rights of workers who perform manual or mechanical labor for the state or any of its political subdivisions, and I will state briefly my reasons for this view. It appears to me to be wholly immaterial whether the compensation of one doing manual or mechanical labor for the state or its political subdivisions is paid on a daily or on a monthly or yearly basis. He is entitled to the benefits of that law if he is doing manual or mechanical labor, regardless of the manner in which he is paid. The fact that the law uses the word "wages" to describe the compensation these workers shall receive does not mean that they shall be deprived of its benefits merely because they are paid on a salary instead of a daily basis, provided they are performing manual or mechanical labor. The chief concern of the legislature, the thought that controlled it in the enactment of the Minimum Wage Law, was to guarantee that manual or mechanical laborers should be paid at least a minimum compensation for their labor, not to provide the manner in which it should be paid, and to accomplish this it chose the following language:

". . . Not less than the minimum per diem wages fixed by the state highway commission for manual or mechanical labor performed for said commission or for contractors performing work under contract with said commission, shall be paid to persons doing manual or mechanical labor so employed by or on behalf of the state or of any of its political subdivisions. . . ." (Section 1350, Rev. Code 1928, as amended by chap. 12, Sess. Laws 1933.)

The word "wages," which means the compensation paid for manual or mechanical labor and is here used to describe the pay of such workers, does not indicate that these wages must be paid in any certain manner in order that those who receive them may have the benefit of the law. Hence, the fact that such compensation is termed a salary and paid monthly does not place manual and mechanical laborers beyond the pale of the law, for according to the authorities wages may be paid upon a daily, monthly or even a yearly basis, the only requirement being that they equal the amount the minimum per diem wages fixed by the highway commission would total for the payment period. In Commonwealthex rel. Wolfe v. Butler, 99 Pa. 535, the court uses this language:

". . . A farmer pays his farm hands in common speech wages — whether by the day, the week, the harvest, or the year. If for any reason he has occasion to employ an overseer, his compensation, no matter how measured, is called a salary. An ironmaster pays his workmen wages, his manager receives a salary. A merchant pays wages to his servant who sweeps the floor, makes the fire and runs his errands, but he compensates his salesman or clerk by a salary. How can it make any difference in what way the compensation is ascertained?"

In McNulty v. City of New York, 238 N.Y. 29, 143 N.E. 781, is found this expression by the Court of Appeals:

"The mere fact that the city has fixed the compensation at an annual rate does not in itself preclude the plaintiff from claiming that the compensation is lower than the statute permits. . . . The compensation paid to a member for a legal day's work constitutes `wages,' even though it be fixed at a weekly, monthly, or annual rate instead of a per diem rate, and though for some purposes and in some contexts it may properly be called salary. If under the statute eight hours constitutes a legal day's work for the plaintiff, then the city must pay him wages for such a day's work at not less than the prevailing rate, and compensation, however fixed, which results in the payment of lower wages for a legal day's work, is not in accordance with the statute. Wright v. State of New York, 223 N.Y. 44,119 N.E. 83." (Italics ours.)

In Adcock v. Smith, 97 Tenn. 373, 37 S.W. 91, 92, 56 Am. St. Rep. 810, is found this language:

". . . `Wages' are defined to be the compensation paid by the day, week, month, etc., for the services of laborers, . . ."

In White v. Hayden, 126 Cal. 621, 59 P. 118, 121, is found this language:

"`Salary' and `wages' are synonymous. Both mean a sum of money periodically paid for services rendered (And. Law Dict.) and it is immaterial how the value of the services is ascertained."

Inasmuch, therefore, as wages define the compensation for the services of laborers and may be paid by the day, week, month or even year, it is difficult to escape the conclusion that in passing the Minimum Wage Law the legislature intended to do otherwise than treat all those doing manual or mechanical labor for the state or its political subdivisions alike, for, as said in State v. Miser, 50 Ariz. 244, 254, 72 P.2d 408, 412,

"It cannot be that the legislature purposely passed a minimum wage law uniform in terms but intended to be discriminatory in operation."

However, such will be the effect of the holding that manual and mechanical workers paid on a daily basis come within the law but those paid by the month do not. In fact, such an interpretation may lead to even more serious results, because it means in the final analysis that that law will be operative and effective in so far as the state and its political subdivisions are concerned only when those whose duty it is to employ manual and mechanical laborers will it so, because it will be within their power to employ and pay such workers upon a monthly basis and in consequence fix whatever salary they see fit, regardless of that law, and I know of no way by which this could be prevented. For instance, the board of supervisors of Maricopa county could provide in its budget a salary of $50 a month, or any other sum it might think proper, for each of the twelve or fifteen janitors it employs to care for the court house and pay him that sum, yet the latter, notwithstanding his work is purely manual labor, and comes within the purview of the Minimum Wage Law, would be helpless. Clearly the legislature had nothing of this kind in mind when it enacted this law.

It was contended soon after the law first became effective that it was unfair for one who has agreed to work for a certain sum and accepts it to be permitted later to recover the difference between the sum paid and the minimum wages fixed by the highway commission for that class of work, and that he should be estopped from doing so, but it was held that the Minimum Wage Law expresses the public policy of the state and cannot be waived but becomes a part of every contract of employment of that character.City of Glendale v. Coquat, 46 Ariz. 478, 52 P.2d 1178, 102 A.L.R. 837. However, that law could have been made to provide that those manual and mechanical workers who agree to and do accept the wage in force at the time of their employment could not claim any increase in the per diem fixed by the highway commission for the class of work they were performing until the close of the fiscal period in which they were employed. Such a provision would have prevented suits for increased wages brought as a result of a change in the per diem by the commission and entitled the state, throughout its fiscal period of two years, and the counties, cities and other political subdivisions, throughout their budgetary periods of one year, to operate without being compelled to face unexpected demands.

Since the enactment of chapter 12, Session Laws of 1933, at least six cases have been before this court in which the plaintiffs sought to recover under the Minimum Wage Law compensation in addition to that they had already received, and in two of them, State v. Miser, supra, and Board of Regentsof University of Arizona v. Sagers, 51 Ariz. 93, 74 P.2d 580, the statement of facts disclosed that they were working on a monthly salary basis but, notwithstanding this fact, it was held without discussing the question, however, that the law applied to them, though the plaintiffs were unsuccessful in both cases because they had not, prior to instituting their actions, filed their claims with the proper state authority for allowance. And in State v. Anklam, 43 Ariz. 362, 31 P.2d 888, the first case to reach this court involving compensation under the Minimum Wage Law, this court sustained a conviction of the board of supervisors of Pima county for its failure to pay a janitor employed by it the minimum per diem wages called for by that law, and while the information did not state that the janitor was drawing a monthly salary, yet the record disclosed he was paid $47.50 for fourteen days' work instead of $56, which the fifty cents an hour fixed by the highway commission for such labor would have amounted to, and in addition everyone at all acquainted with county government knows that janitors in public buildings are paid on a salary basis. And, besides, several of the superior courts of the state have relied on these decisions in awarding additional compensation to such manual workers without making any distinction between those drawing salaries and those working for wages. So, in view of the fact that the bench, the bar, the employers and employees of the state whose duty it is to enforce this law, have, because of the foregoing decisions as well as the terms of the law itself, treated the question as settled, it occurs to me that it should not now be raised by the court of its own motion but should be enforced as the law of the state until the legislature itself, whose function it is to do so, amends the law to meet such situations as the facts of this case present.

I concur in the judgment upon the ground that prison guards do not fall within the meaning of the Minimum Wage Law, but the language of the opinion dealing with the application of this law to those receiving "wages" and those receiving "salaries" is such that it occurred to me that it might be well to state more fully my reasons for the view that those doing manual or mechanical labor for the state or any of its political subdivisions come within its purview, even though they are paid a salary instead of wages.