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State v. Ash

Supreme Court of Arizona

February 20, 1939

STATE OF ARIZONA, Appellant,
v.
O.A. ASH, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. M.T. Phelps, Judge. Judgment reversed and cause remanded with instructions.

Mr. Joe Conway, Attorney General, and Mr. Charles Bernstein, Assistant Attorney General, for Appellant.

Messrs. Windes & Clark, for Appellee.

OPINION

Page 271

[53 Ariz. 198] LOCKWOOD, J.

This is an action by O.A. Ash, hereinafter called plaintiff, on behalf of himself and some forty-one others, against the State of Arizona, [53 Ariz. 199] hereinafter called defendant, to recover wages for services performed by him and his assignors for the defendant at the Arizona state prison. It is alleged, in substance, that the services performed by plaintiff and each, except one, of his assignors were as "a guard," while the other assignor's services were performed as "prison matron"; that they had been paid for such services an amount less than that fixed as the legal per diem wage for such work by the Arizona state highway commission, under the provisions of section 1350, Revised Code 1928, as amended by chapter 12 of the Session Laws of 1933, commonly referred to as the "Minimum Wage Law," and that the amount which they were seeking to recover was the difference

Page 272

between the sum so paid and the amount to which they were entitled under such law.

The defendant demurred to the complaint as not setting up a cause of action in favor of plaintiff either on his own or on any of the assigned claims, and the demurrer being overruled and defendant declining to plead further, judgment was rendered for plaintiff as prayed for, and the matter was brought before us on appeal.

The sole question for our consideration is whether or not plaintiff set up a cause of action in his complaint, and we think this depends upon whether plaintiff and his assignors come within the terms of the Minimum Wage Law as unskilled manual laborers. If they do, they are entitled to recover, for the demurrer admits that they performed services for the length of time set up in the complaint, and that they were paid for such services less than the per diem fixed by the Minimum Wage Law for unskilled manual laborers under the act, in the amount asked for.

Section 1350, as amended, reads so far as material as follows:

[53 Ariz. 200] "Hours Of Labor On Public Work; Wages. 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 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...." (Italics ours.)

It appears that the only persons covered by the act are those who are "doing manual or mechanical labor" and naturally the question is, what did the legislature mean by those terms? We have had them under consideration in the case of Arizona Eastern R.R. Co. v. Matthews, 20 Ariz. 282, 288, 180 P. 159, 161, 7 A.L.R. 1149. Therein we said:

"'Mechanical labor' is labor performed by a mechanic or 'one who practices any mechanic art; one skilled or employed in shaping or uniting materials, as wood materials, etc., into any kind of structure, machine or other object requiring the use of tools or other objects, an artisan.' Webster.

"Taken in connection with the context, we think 'mechanical labor' is such skilled labor as is necessarily employed by employers in making and repairing tools and instrument used in the operation of the ...


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