State of Arizona v. Ash

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, *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 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: *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 wag*es 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 Pac. 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 instruments used in the operation of the business. It is manual labor, but of the skilled kind. “While the words ‘manual labor’ might be construed to mean clerical work, we do not think any such meaning attaches to them as they are used in the context. . . . “When we speak of a person doing manual labor, the mind is instantly directed to some kind of toil in *201 which the physical predominates the mental. The words would never call to mind the office man engaged in keeping books or making out bills or statements or operating a typewriter. ...” What are the duties of a guard at the state prison? The very name indicates the primary and principal duty. The word “guard” is defined by Webster as “a man or body of men stationed to protect or control a person or position; a sentinel; ‘the guard which kept the door/ ” and this definition is in perfect harmony with the ordinary understanding of the duties of a guard at a state prison. In other words, their work is to watch the inmates of the prison, and see that they do not escape. Anything else they may do is purely incidental to this primary duty. It is obvious that such work is not “mechanical labor” within any reasonable meaning of the term. But is it “manual labor”? Construed literally, of course, “manual labor” means any work done with the hand, and it may be argued that the guard who restrains a prisoner from escaping is using his hands, either directly or through the instrumentality of weapons, to make such restraint effectual. But if this meaning is to be given to the phrase “manual labor” as used in the act, then almost every occupation of man falls within that term. The dentist who cares for the teeth, the surgeon who performs a major operation, the stenographer and typist who has written this opinion, are all engaged in work which is literally as manual as that of the ditch digger, and yet no one would assume for a moment that by the phrase “manual labor” in the Minimum Wage Act, it was intended by the legislature to include any of these occupations, or the hundred of others similar thereto. The minimum wage scale prepared by the highway commission under the law does not include a single occupation which, by any reasonable construction, *202 could be considered analogous to that of an armed guard at a state institution. An examination of this scale will show tbe practical construction wbicb has always been put upon the law by the commission. It covers only those occupations wherein it is the ordinary custom to compensate for services on a per diem basis, and not upon a monthly or annual one. It will be noted on a careful examination of the language of the act that the employees protected thereby are not only defined as mechanical or manual laborers, but the compensation paid them is expressly stated to be “wages.” The term “wages” as distinct from “salaries” has, especially in recent years, acquired a specific meaning. "Webster defines “salary” as follows: “The recompense or consideration paid, or stipulated to be paid, to a person at regular intervals for services, especially to holders of official, executive, or clerical positions; fixed compensation regularly paid, as by the year, quarter, month or week; stipend — now often distinguished from wages.” And wages are said to be, “Pay given for labor, usually manual or mechanical, at short stated intervals, as distinguished from salaries or fees.” The legislature, in its appropriation bills, has for many years fixed the compensation for guards at the prison on an annual, and not a per diem, basis. We think it is absurd to imagine it would have continued this practice after the adoption of the Minimum Wage Act if it had thought the act applied to such employees as guards or matrons at the prison, since all compensation for employees who come under the act must by its terms be fixed on a per diem basis. It is, of course, true that the legislature may not repeal or modify general legislation in a general appropriation bill. Carr v. Frohmiller, 47 Ariz. 430, 56 Pac. (2d) 644; Sellers v. Frohmiller, 42 Ariz. 239, 24 Pac. (2d) 666. But when the meaning of the legis *203 lature in a general law is doubtful, we think its action in the appropriation bill may be considered in determining what its true meaning was in the general law. We hold, therefore, that it was not the intent of the legislature when it adopted the Minimum Wage Law to include within its provisions such employees as prison guards or matrons, any more than it was meant to cover such occupations as clerks, typists and stenographers. Its purpose was to protect the man whose work was that of a mechanic or manual laborer in the usually accepted sense of these words, and whose tenure was, therefore, normally so limited and uncertain in duration that he was usually paid wages by the day rather than salary by the month or year, and whose total annual compensation was generally uncertain and fluctuating. This does not mean, however, that the Minimum Wage Law does not apply to employees whose occupation is, within the generally accepted sense of the words, truly mechanical or manual labor, merely because it may happen that for some reason or another their compensation may have been fixed on an annual or monthly basis rather than a per diem. The method of compensation is but one of the tests used to determine the real issue, and it cannot be used to evade the law. But it may be said that this case comes before us on demurrer, and since a demurrer admits all of the allegations of a complaint which are well pleaded, and since the complaint alleges that the plaintiff and his assignors were employed “to perform unskilled manual labor as a guard at the Arizona state prison,” that this is an admission that the labor performed comes within the Minimum Wage Law. While it is true that the demurrer admits all of the allegations of the complaint which are well pleaded, it does not necessarily admit those allegations which are am *204 biguous or contradictory in their nature. Had the allegation merely been that the plaintiff was employed “to perform unskilled manual labor” it might properly be-said that this was an admission he came within the provisions of the act, but when this labor is alleged to have been “as a guard,” and, as we have indicated, the services of a guard are clearly not “unskilled manual labor,” we think that the particular allegation of employment “as a guard” controls and overcomes the general allegation of “unskilled manual labor, ’ ’ and that we should consider the particular employment shown by the complaint, rather than the general one which is contradictory thereto. 49 C. J. 119, and cases cited. Since the work performed by plaintiff did not come within the class of labor for which a mini-mum wage was required to be fixed, or was fixed, by law, and since the legislature, in the annual appropriation act of 1937, did fix the compensation which it is admitted was actually paid to plaintiff and his assignors, the complaint did not state a cause of action, and the court erred in overruling the demurrer thereto. The judgment of the superior court is reversed and the cause remanded with instructions to sustain the demurrer to the plaintiff’s complaint, and for such further proceedings as may be proper. ROSS, O. J., concurs.