APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed.
Mr. Hess Seaman, City Attorney, Mr. Wm. C. Fields and Mr. Eli Gorodezky, Assistant City Attorneys, for Appellant.
Mr. J. S. Wheeler, for Appellee.
[54 Ariz. 79] LOCKWOOD, J.
R. F. Kidd, hereinafter called plaintiff, brought suit on behalf of himself and some thirty-five other persons who had assigned their claims to him for wages which he alleges is due to him and his assignors from the City of Phoenix, a municipal corporation, hereinafter called defendant. Judgment was rendered in favor of plaintiff in the superior court, and this appeal was taken.
The appeal involves a consideration of section 1350, Revised Code 1928, as amended by chapter 12, Regular Session 1933, commonly known as the Minimum Wage Law. The facts have been stipulated, and we [54 Ariz. 80] summarize them so far as material. Plaintiff and each and all of his assignors were engaged in either mechanical or manual labor on public works of the defendant on August 1, 1937, and thereafter during the period alleged in the complaint, all of them being within the classified civil service of defendant. After the city commission of defendant had adopted its budget for the fiscal year 1937-38, the state highway commission, acting under section 1350, supra, adopted a new minimum wage scale for employees engaged in mechanical or manual labor, effective as of August 1, 1937, which increased the minimum wage over what it had been at the time of the adoption of the budget aforesaid. Plaintiff and his assignors were paid wages at the rate established by the minimum wage scale as it existed at the time the budget was adopted during the period which they worked subsequent to August 1, 1937, and voluntarily continued in the employ of the defendant and accepted the wages as tendered to them by defendant, with full knowledge that the budget had been adopted on the basis of the prior wage scale.
The amount sought to be recovered by plaintiff correctly represents the difference
between the wages actually paid to him and his assignors and the wages they would have received if they had been paid in accordance with the increased minimum wage scale adopted by the highway commission, as aforesaid, for the time they worked. The amount claimed is all in excess of the amount budgeted by defendant for labor of the class performed by the plaintiff and his assignors for the fiscal year 1937-38, or any other unobligated funds of defendant.
Defendant raises two propositions of law, which we shall consider as seems advisable, (a) employees of the City of Phoenix, within the classified civil service, [54 Ariz. 81] whose compensation is paid from funds appropriated in the budget of the city, are not subject to the minimum wage scale fixed by the highway commission, under the provisions of section 1350, supra, (b) the City of Phoenix is not permitted to exceed its annual budget for work of the class performed by plaintiff and his assignors, and to pay them the wages fixed by the highway commission would compel it to do so.
So far as the first objection is concerned, we think it has no merit. We have held in the case of State v. Jaastad, 43 Ariz. 458, 32 P.2d 799, and City of Phoenix v. Drinkwater, 46 Ariz. 470, 52 P.2d 1175, that the self-governing cities of the state are subject to the provisions of any general law adopted as a matter of statewide policy, regardless of any special charter provisions, and that the Minimum Wage Law is one of that nature, so that it supersedes any provision of the charter or ordinance of the City of Phoenix which may be contrary thereto. We are of the opinion, however, that there is no conflict. While the employment and discharge of city employees, under the civil service ordinance, must be in strict conformity with the ordinance, we know of nothing therein which would compel the city to retain in the service any civil service employees when there are no funds available for their payment. A somewhat similar question recently arose in the case of City of Phoenix v. Sittenfeld, 53 Ariz. 240, 88 P.2d 83, and it appears therefrom that the city has the right, under the civil service ordinance, to lay off employees when there are not sufficient funds budgeted for their payment, with the proviso that they must be laid off in the order of their seniority. We think the same situation applied to the present case. If the city officials found that under the new minimum wage scale fixed by the highway commission there were not sufficient funds [54 Ariz. 82] budgeted to take care of their employees, they could have easily kept within the budget by laying off such employees in the order of their seniority until the force was reduced sufficiently to keep expenditures within the budget, or they might have requested the tax commission for permission to exceed the budget. Section 3099, Rev. Code 1928.
The second question is whether the defendant is permitted to exceed its budget for the payment of plaintiff and his assignors. As we have indicated, it was not necessary for it to retain them in service after the funds budgeted for their payment were exhausted, but nevertheless it took that course, and we must determine whether the claim of plaintiff and his assignors for further payment for such services is void because of sections 3097-3099, Revised Code of 1928, commonly called the budget law.
We have held that the budget law applies to the so-called home rule cities in the same manner as it does to counties. America-LaFrance etc. Corp. v. Phoenix, 47 Ariz. 133, 54 P.2d 258. In the case of Fullen v. Calhoun, 39 Ariz. 40, 3 P.2d 786, 787, we had occasion to discuss at some length the class of expenditures to which this law applies and those to which it does not. We said:
"An examination of the provisions of the law pertaining to the making of annual budgets, sections 3097, 3098 and 3099, Revised Code of 1928, discloses that some of the items that enter into the budget are what may be designated as fixed items of expense, such as the interest and principal of any bonds of the county, the items and amounts of every special levy provided by law, the salaries of public officers, etc. Some of the expenses of maintaining the county government, although authorized, are not fixed in amount by any law, such as the county printing and advertising, necessary books and stationery, feeding of county prisoners, the care of the indigent sick, necessary water, wood, lights, [54 Ariz. 83] and like supplies for county institutions, insurance and repairs of county buildings and county roads, and for other purposes.
"Items of the first kind are fixed charges, made so by law, and all the board has to do is to calculate the amounts. They cannot, for instance, estimate the salary of the officials, or the interest or principal on bonds, or a special levy fixed by the
Legislature. Their work on these items is merely clerical. As to items of the other kind, it is up to the board to fix the sums needed, according to the necessities of the case, and their estimates of such items cannot be exceeded by expenditures. In other words, the estimated expenses and expenditures are supposed to coincide, or at least the ...