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State v. Miser

Supreme Court of Arizona

September 27, 1937

J. W. MISER, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment reversed and cause remanded with directions.

Mr. John L. Sullivan, former Attorney General, and Mr. Elmer C. Coker, his Assistant, for Appellants.

Mr. V. L. Hash, for Appelle.


Page 409

[50 Ariz. 246] McALISTER, C.J.

J. W. Miser brought an action against the State of Arizona and the Board of Regents of the University of Arizona, a body corporate, to recover a balance alleged to be due him for manual labor performed by him and four other persons. The complaint contains five causes of action. The first is based on the sum claimed by him for his own services and the other four on the amount sought by him as assignee of these other persons. He was successful in each, though for a less amount than prayed for, and the defendants have brought the judgment here for review.

The complaint alleges in substance in its first cause of action that the plaintiff was employed as a "laborer to do manual labor" on the university's experimental farm near Mesa, Arizona, on February 17, 1933, and that he worked as such until July 1, 1934, or for a period of 3,408 hours; that the statute in such cases provides that eight hours and no more shall constitute a day's work and that the minimum per diem wages fixed by the State Highway Commission for manual labor is fifty cents an hour; that at this rate he earned $1704; that the defendants paid him $1155; and that there is now due him by the defendants $549; that he made claim upon the defendants for payment of this sum and that it has been disallowed and denied.

The four additional causes of action are identical in form and amount with the first, except that each is based on the claim of another employee which was assigned to the plaintiff for collection.

Under date of June 23, 1933, the evidence discloses, the president of the university addressed a letter to the [50 Ariz. 247] plaintiff appointing him to the position of field assistant in the Arizona Agricultural Experiment Station at a salary of $75 per month, his work to be at the Mesa farm under the supervision of C. J. Wood and he immediately accepted the appointment in writing. His employment continued from that day until July 1, 1934, during which period he worked 3,325 1/2 hours and was paid regularly twice a month

Page 410

at the agreed rate, the total sum received by him during that time being $1155.

It further appears that the plaintiff made claim for his wages in this way: The superintendent of the farm, C. J. Wood, prepared twice a month a payroll showing the name of each employee at the farm, the hours he had worked and his rate of pay. This payroll was presented to each employee for his signature, and after examining it to ascertain its correctness as to the hours he had worked and the rate of pay he was entitled to, or, at least, after having had the opportunity to do so, he signed it, whereupon Mr. Wood verified it and sent it to the comptroller of the university, who, provided it was correct in all respects, approved it and then forwarded it to the state auditor for payment. The plaintiff did not, however, sign any payroll or make any written verified claim for the additional amount he is asking for in this action, although he did on January 14, 1935, make a verbal demand therefor of Mr. Wood.

The evidence relative to the other causes of action discloses that the plaintiff's assignees had agreed to work for $70 per month, that they had been paid at that rate for all their time in the same manner as plaintiff, and that they did not sign any payroll or file a written verified claim for the additional amount sought in this action.

At the conclusion of the case the court held that the plaintiff was entitled to judgment on each cause of [50 Ariz. 248] action but since the liability of the defendants was one created by statute, City of Phoenix v. Drinkwater, 46 Ariz. 470, 52 P.2d 1175, he could recover only that portion of the claims that was not barred by section 2058, subdivision 3, Revised Code of 1928, the one year statute of limitations. It then rendered judgment in his favor on the five causes of action as follows: (1) $155.50; (2) $183.00; (3) $131.66; (4) $140.84; (5) $44.15. The defendants, believing the Minimum Wage Law inapplicable to the facts of this case, or if it does apply, that the plaintiff did not bring himself within the terms of the statute giving him the right to prosecute such an action, have appealed from the judgment as well as the order overruling their motion for a new trial.

Appellants raise by proper assignment two questions of law, each of which gives a different reason why the court erred in overruling their demurrer to the complaint and in denying their motion for a new trial. The first is that the complaint does not allege that prior to the commencement of the action appellee or his assigns had filed verified claims for the amounts in controversy in accordance with the provisions of sections 30, 2619 and 4379, Revised Code of 1928, and that the same had been disallowed, this being a necessary condition precedent to the right to sue if the Board of Regents of the University, a body corporate, must be regarded as the state, or an arm thereof, for the purposes of the Minimum Wage Law. The second is that in view of the provisions of section 1135, Revised Code of 1928, and the "Educational Institutions Act of 1934," chapter 7 Third Special Session, 1934, the Board of Regents of the University, which is a body corporate, is not subject to the terms of section 1350, Revised Code of 1928, as amended by chapter 12, section 1, Session Laws of 1933, commonly referred to as the "Minimum Wage Law." If either [50 Ariz. 249] of these contentions is sound the judgment cannot stand, and since the second is directed to the merits rather than to a matter of procedure it will be disposed of first.

The pertinent part of the Minimum Wage Law, section 1, chapter 12, Session Laws of 1933, under which appellee is seeking to recover additional wages, reads as follows:

"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 any of its political subdivisions." (Italics ours.)

It will be observed that the minimum per diem wage provided for herein applies specifically to those employed by or on behalf of the state or any of its political subdivisions, though it does not define what is meant by the terms, "state" and "political subdivisions," as here used. This must be ascertained from the context and the meaning generally attached to them. It is clear, however, in fact has been decided by this court, that the expression, "political subdivisions," in this connection, includes counties, State v. Anklam,43 Ariz. 362, 31 P.2d 888, and cities and towns, State v. Jaastad,43 Ariz. 458, 32 P.2d 799. But appellee does not claim that the University of Arizona comes within the meaning of this term, though he does seriously urge ...

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