JAMES B. SAYERS. plaintiff,
W. M. COX, State Treasurer, Defendant
Original proceeding in Mandamus. Alternative writ quashed and peremptory writ denied.
Mr. J. Irvin Burk (Mr. L. C. McNabb, of Counsel), for Plaintiff.
Mr. Arthur T. La Prade, Attorney General, and Mr. James R. McDougall and Mr. K. Berry Peterson, Assistant Attorneys General, for Defendant.
RODGERS, Superior Judge.
James B. Sayers, a member of the eleventh state legislature, representing the sixth legislative district of Maricopa county, [42 Ariz. 36] filed in this court an original petition for a writ of mandamus, directed to W. M. Cox, as treasurer of the state of Arizona, praying that the state treasurer be, by this court, ordered to pay to the plaintiff the amount of a certain state warrant issued to him by the state auditor on the ninth day of March, 1933, for the purpose of compensating him to the extent of $32 for his services as a member of the legislature.
Plaintiff presented his salary warrant, here involved, to the defendant, W. M. Cox, as state treasurer, on the thirteenth day of April, 1933, and demanded immediate payment of the warrant in lawful money of the United States or by a negotiable bank check, payable on demand. The defendant refused payment for the reasons alleged and set forth in paragraph IV of his return and answer, duly filed herein, which paragraph reads as follows:
"Further answering said alternative writ of mandamus and the application therefor, defendant alleges that, on the 13th day of April, 1933, there was in the General Fund of the State of Arizona, a sum of money amounting to approximately $350,000.00 and that prior to the presentation of plaintiff's warrant on the 13th day of April, 1933, there had been presented to defendant for payment warrants payable to the persons named thereon, regularly issued by the Auditor of the State of Arizona and drawn on the General Fund of the State, for various and sundry purposes such as the expenses for the operation of the State Departments and salaries for officers and employees, amounting to approximately Two Million Five Hundred Thousand and No/100 (2,500,000.00) Dollars; that said Two Million Five Hundred Thousand and No/100 ($2,500,000.00) Dollars worth of warrants presented as aforesaid had been refused immediate payment for the reason that there were not sufficient funds in the General Fund of the State to pay the same; that in the manner required by law, the defendant stamped upon each of the warrants constituting said sum of Two Million Five Hundred Thousand and No/100 (2,500,000.00) Dollars, the date [42 Ariz. 37] of its presentation and caused the same to be registered in a book kept for that purpose; that the warrant presented by the plaintiff on the 13th day of April, 1933, could not be paid by defendant as demanded for the reason that all other warrants presented prior to the plaintiff's were due and payable, in the order of their presentation, out of the General Fund of the State and, therefore, there were no funds available with which plaintiff's warrant could be paid."
Plaintiff alleges in his petition that it was the plain duty of the defendant to comply with his demand for payment of his warrant and that the refusal of the defendant to pay same was without just cause or lawful excuse.
An alternative writ of mandamus was granted upon the application of plaintiff, to which the defendant has filed a demurrer, and a return and answer, and the case is, therefore, submitted upon issue thus joined.
It is the contention of plaintiff that his right to the relief here sought finds support and justification in the provisions of sections 4876 and 4877 of chapter 111 of the 1928 Revised Code of Arizona, as amended by Laws of 1931, chapter 54, which sections read as follows:
"4876. Semi-Monthly Wage Payment; Notice; Violation; Penalty. The state of Arizona, every department and institution of the state, every county and municipal corporation within the state, every contractor (whether individual, firm, partnership, association or corporation) employed under contract by the state, or by any of said departments, institutions, counties or municipal corporations, and every company or corporation doing business in the state, shall designate regular days not more than sixteen days apart as days fixed for the payment of wages to the employees thereof, and shall post and maintain notices, printed or written, in plain type or script, in at least two conspicuous places where said notices [42 Ariz. 38] can be seen by said employees as they go to and from their work, setting forth said days as 'pay days,' and the state, and every such department, institution, corporation or individual shall pay on each of said days to its or his employees in lawful money of the United States, or in negotiable bank checks, payable on demand, of the date of said day, all wages due said employees up to such pay day, except that said state, department, institution, corporation, or individual may withhold wages for not more than five days labor due any employee remaining in the service thereof.
"Every contractor mentioned herein, and every corporation (except municipal corporations) violating any of the provisions hereof, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than fifty nor more than five hundred dollars for each offense."
"4877. Payment of Wages; Violations; Penalty. Whenever an employee quits the service, or is discharged therefrom, he shall be paid whatever wages are due him, in lawful money of the United States, or by ...