APPEAL from a judgment of the Superior Court of the County of Pima. W. A. O'Connor, Judge. Affirmed.
Mr. K. Berry Peterson, Attorney General, Mr. Charles L. Strouss, Assistant Attorney General, Mr. William G. Hall, County Attorney, and Mr. E. T. Cusick, Special Prosecutor, for the State.
Mr. Ben C. Hill, for Appellee.
[39 Ariz. 46] ROSS, J.,
The defendant was informed against by the county attorney of Pima county for refusing and failing to pay one of its employees the current rate of wage for work on the construction and alteration of a school building for Tucson school district No. 1 of Pima county. A jury was waived and the case tried before the court upon a statement of facts stipulated by the parties.
The defendant by motion in the nature of a demurrer moved to dismiss the action on the ground that the admitted facts do not constitute a public offense, although they aptly describe all the acts the statute requires to make out the offense. It was contended by the movant that if the statute is enforced it will deprive the defendant, its officers and agents, of their liberty and property without due process of law, in violation of the fourteenth amendment to the Constitution of the United States and section 4 of article 2 of the Constitution of Arizona, for the following reasons:
[39 Ariz. 47] ". . . That said statutes contain no ascertainable standard of guilt; that it cannot be determined with any degree of certainty what sum constitutes a current wage in any locality; that the term 'locality' is fatally vague and uncertain; that said statutes are not sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties; that the statute forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess its meaning; that the statutes are too indefinite or uncertain to support an information and are void for uncertainty; that under said statutes an ordinary person cannot intelligently choose in advance what course it is lawful for him to pursue; that said statutes admit of such a double or vague meaning that a citizen may act upon one conception of its meaning and the courts upon another; and that what is lawful or unlawful under said statutes is left to conjecture, guess and reasonably different constructions."
This motion was granted on authority of Connally v. General Construction Co., 269 U.S. 385, 70 L.Ed. 322 46 S.Ct. 126, and the state has appealed.
The section of the statute under which the information is drawn reads as follows:
"Eight hours, and no more, shall constitute a lawful day's work for all persons doing manual or mechanical labor employed by or on behalf of the state, or of any of its political subdivisions, except in an extraordinary emergency, in time of war, or for the protection of property or human life; in such cases the persons working to exceed eight hours each day shall be paid on the basis of eight hours constituting a day's work. Not less than the current rate of per diem wages in the locality where the work is performed 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. Persons doing manual or mechanical labor employed by contractors or sub-contractors in the execution of any contract with the state, or with any of its political subdivisions, shall be deemed to be employed by or in [39 Ariz. 48] behalf of the state, or of such subdivision thereof." Sec. 1350, Rev. Code 1928.
It is the validity of the current wage feature of the statute that is in question. The right of the state to limit the hours of labor upon public works for itself or its political subdivisions has long been settled law (Atkin v. Kansas, 191 U.S. 207, 48 L.Ed. 148, 24 S.Ct. 124), and it seems the prevailing rule so declared for a like reason is that the state and its political subdivisions may establish a minimum rate of wages for laborers upon public works. 16 R.C.L. 497, § 68.
It is not, then, a question of the power of the legislature to prescribe a current rate of wages for manual and mechanical labor on public works, but whether that phrase in its context is sufficiently clear and definite to inform the employer of the per diem he should pay to satisfy the law. If the employer, supposing him to be a person of ordinary intelligence, is not able, as between two or more alternative wages that are open to him, to determine which would be a compliance with the statute, it cannot be said the statute is definite and certain, for in such case the court might conclude the alternative adopted by the employer was the wrong one.
The information alleges the criminal act was committed between June 5th and June 11th, 1931, and consisted of a refusal to pay one Carl S. Smith, a carpenter, $9 per day, "the current rate of per diem wages for mechanical labor in said locality of the City of Tucson, Arizona," and in paying him $8 per diem of eight hours. The stipulation as to the wages ...