APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed.
Mr. Joe Conway, Attorney General, Mr. Albert M. Garcia and Mr. A. R. Lynch, Assistant Attorneys General, for Appellant.
Mr. T. E. Scarborough, for Appellee.
[56 Ariz. 47] McALISTER, J. C.
A. Angle brought an action against the state of Arizona to recover the balance alleged to be due him for manual labor performed for it by him and sixteen other persons. The complaint contains seventeen causes of action. The first is based on the sum claimed for his own labor as watchman at the capitol buildings and grounds, and the others on the amount asked for as assignee of thirteen persons who were either watchman, janitors, gardeners, engineers, or elevator operators at the same place, and of three others who were auto repairmen or sign painters in the highway department. He won judgment for the amount sought in each cause of action and the state has brought the matter here for review.
The substance of the allegations stating his first cause of action is that from the 1st day of July, 1938, up to and including the 31st day of December, 1938, working not over eight hours in any one day, appellee performed for the state 1,472 hours of manual labor as a watchman in and around the capitol buildings and grounds and that the state paid him therefor the sum of $675; that during all this period and for some time prior to July 1, 1938, the minimum wage fixed by the highway commission for manual labor performed for it and for those who had contracts with it was the sum of 621/2" per hour and that by reason of this appellee earned during these 1,472 hours of labor the sum of $920, thus leaving a balance of $245 due him by the state for his labor during this period.
It is further alleged that prior to the commencement of this action appellee presented to the board of directors of state institutions his claim for $245 and that the board rejected and disallowed it; that thereupon he presented the claim for $245, verified and itemized, to the state auditor and she rejected and disallowed it.
[56 Ariz. 48] The other sixteen causes of action are identical with this, except in these respects: Each is based on a claim assigned to appellee by another employee and is for a different amount; in four of them the wage per hour fixed by the highway commission for the class of work involved is $1.20, and in three the claims were presented for approval to the highway commission by whom the claimants were employed, instead of the board of directors of state institutions, and were by it rejected and disallowed.
The state demurred generally to the complaint and upon the further ground that it appeared upon the face thereof that the court had no jurisdiction over the subject matter of the action. The demurrer was overruled and an answer containing only a general denial filed by the state. Thereupon the case went to trial and, according to the agreed statement of facts upon which it is presented here, in causes of
action 1 to 13-a inclusive, and the testimony in 14, 15 and 16, the evidence supports the allegations of the complaint that appellee and each of his assignors had worked for the state the number of hours and in the capacities stated in the complaint; that they had been paid the amount alleged, and that under the minimum wage fixed by the highway commission for the class of manual labor each was performing the unpaid balances were as set out in the complaint. At the conclusion of the evidence the court rendered judgment for appellee in each cause of action as follows: (1) $245; (2) $447.50; (3) $245; (4) $307.17; (5) $486.50; (6) $300; (7) $775.23; (8) $323.50; (9) $313.34; (10) $357.50; (11) $581.50; (12) $156.40; (13) $493.87; (13-a) $189; (14) $881.50; (15) $516.70; (16) $392.88. It further adjudged that $5,221.51, the total amount due appellee on causes of action numbers 1 to 13-a, inclusive, should bear interest at six per cent. per annum from July 1, 1939, until paid, and that $1,791.08, the total sum due on causes of [56 Ariz. 49] action numbers 14, 15 and 16 should bear interest at the same rate from October 1, 1939, until satisfied.
The controlling facts in this case are identical with those in State v. Angle, 54 Ariz. 13, 91 P.2d 705, 706, decided by this court in June, 1939, except the dates and the amounts involved. In that case the same appellee, Angle, sought to recover the difference between the amount paid him and his assignors "as salaries authorized and appropriated for that purpose by subdiv. 18 of section 1 of chap. 73 of the regular session laws of 1937, and the minimum wage fixed by the Arizona highway commission under the authority of section 1350, R.C. 1928, as amended by sec. 1, of chap. 12 of the regular session laws of 1933." A majority of the court held in that case that he was entitled to the relief prayed for and appellee contends that the same rule should be applied in this case and that when this is done judgment for him must follow. The state does not dispute this proposition but interposes a defense not raised in that case, which, it contends, has the effect of defeating recovery even if the claims against it are just as legal as those in the other cause, and that is that even though they are of the same character, the action by which he seeks to collect them must fall because the complaint fails to allege and the evidence adduced at the trial to show that the necessary conditions precedent were complied with by him before filing his suit. In support of this contention the state cites the following decisions by this court in which it was upheld: Maricopa County v. Sharrit, 49 Ariz. 396, 67 P.2d 232; Yavapai County v. O'Neill, 3 Ariz. 363, 29 P. 430; State v. Dart, 23 Ariz. 145, 202 P. 237; Board of Regents of University of Arizona v. Sagers, 51 Ariz. 93, 74 P.2d 580; State v. Miser, 50 Ariz. 244, 72 P.2d 408. In addition to these the case of Hutchins v. Frohmiller, 55 Ariz. 522, 103 P.2d 956, should be mentioned. Appellee does not contend [56 Ariz. 50] otherwise but takes the position that his complaint meets this objection because it alleges that he presented the claims to the heads of the departments in which he and his assignors worked, namely, the board of directors of state institutions and the highway commission, and they disapproved them, and that he then presented them to the state auditor and she rejected and disallowed them. Was this a compliance with the statute requiring that claims be presented to certain officers and by them disallowed before action on them may be brought?
Section 18, part 2, article IV of the Constitution provides that "The Legislature shall direct by law in what manner and in what courts suits may be brought against the State" and pursuant to the authority conferred by this language that body enacted ...