City of Phoenix v. Kidd

92 P.2d 513, 54 Ariz. 75, 1939 Ariz. LEXIS 126

• Court: Arizona Supreme Court
• Decided: July 14, 1939
• Docket: Civil No. 4090.
• Status: Published

Opinions

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 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, 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 Pac. (2d) 799, and City of Phoenix v. Drinkwater, 46 Ariz. 470, 52 Pac. (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 ease of City of Phoenix v. Sittenfeld, 53 Ariz. 240, 88 Pac. (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 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 Pac. (2d) 258. In the case of Fullen v. Calhoun, 39 Ariz. 40, 3 Pac. (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, 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 expenditures cannot exceed the estimates. Bank of Lowell v. Cox, 35 Ariz. 403, 279 Pac. 257.

“The evident purpose of the ‘Budget Law’ is to establish the plan of ‘paying as you go’; also to allow the taxpayer an opportunity to object to any proposed expenditure, or the amount thereof, by the board of supervisors, when not specifically authorized and fixed by the Legislature. If the Legislature has named a county expense and fixed the sum or sums to be paid therefor, the members of the board of supervisors, as also the taxpayers, are bound thereby, and the board must to the best of its ability perform the ministerial duty of meeting such fixed expense in the annual budget. It is true section 3098, supra, provides that, when the hearing of taxpayers on the proposed budget has been concluded, the board of supervisors shall adopt such budget ‘as finally determined upon . . . and no expenditure shall be made for a purpose not included in such budget, and no debt, obligation, or liability shall be incurred or created in any year in excess of the amounts specified therein as finally adopted for each purpose therein named. . . . ’

“It will be noticed that the prohibition is against the board’s incurring or creating any debt, obligation, or liability. It is not against the payment of debts, obligations, and liabilities created or incurred by the county or its agents in the manner and for the sums fixed by the Legislature itself. It seems clear that the prohibitions in the ‘Budget Law’ are directed at those items of county expense which the board of supervisors, as the business and fiscal agents of the county, are authorized to incur through contracts, and not to those items that are fixed and definite charges by virtue of direct legislative act. . . .

“The superior courts are constitutional agencies of the state, exercising important and necessary powers of the sovereignty. The Constitution, section 6, article 6, affirmatively states:

“ ‘For the determination of civil causes and matters in which a jury demand has been entered, and for the trial of criminal causes, a trial jury shall be drawn and summoned from the body of the county at least three times a year. ’

“This provision recognizes the jury as a necessary adjunct or part of the court for the trial of certain kinds of cases. The Legislature has provided the manner and time of making the jury lists and for the drawfing of jurors. . . .

“The compensation of jurors is as much fixed as the salary of officers, the interest or principal of county bonds, or items or amounts of special levies. It is true no one can know beforehand the number of juror days or the amount of juror mileage there will be in any given fiscal year, it all depending upon the number of jury cases and the time consumed in their trial, and for that reason the items for jury fees and mileage cannot be definitely determined for the budget. The estimate of the board of supervisors entering the annual budg’et for this account at most can only approximate the expense. If the estimate as contained in the budget is inadequate to pay all the fees and mileage of jurors, the jurors nevertheless are entitled to warrants on the treasury of the county, to be paid out of sources of revenue other than property taxation, if available for that purpose; otherwise to be registered by the county treasurer as provided in section 867 of the Revised Code of 1928, and cared for out of the county’s budget for the following fiscal year.”

It appears, therefore, that all expenditures which are optioned with the counties and the municipalities, and are not required by the Constitution or a legislative act to be made, are within the provisions of the budget law. There is no direction by the legislature that the functions in which plaintiff and his assignors performed labor should be carried on at all. That was left to the option of the municipalities, subject to the limitations of all general laws affecting such activities. Since this is true, it is plainly true that there was no legislative mandate that plaintiff and his assignors, or any other persons, should be employed to carry on those functions. On the contrary, it was expressly declared by the budget law that they should not be carried on so as to create any liability against the municipalities in excess of the amount previously budgeted for those purposes. Nor does the budget law distinguish between expenditures for labor and those for material. The one must conform to the law as well as the other. A contract for employment is no more exempt from the provisions of the law than is a contract for material. If the authorities of the municipalities are permitted to hire labor to any extent which they choose, regardless of whether they have budgeted therefor, the entire purpose and effect of the law could and would be defeated just as much as if they were permitted to contract for the purchase of equipment or materials in excess of the amount provided for that purpose. Nor may the person who furnishes either material or labor in excess of the amount budgeted therefor claim exemption from the provisions of the law by reason of the fact that he did not know the budget had been exceeded. We have held that all those who enter into any contractural relations with the cities and counties are bound at their peril to know whether such contract will cause the budget law to be violated, and if it does, the contract is void, and cannot be enforced. Bank of Lowell v. Cox, 35 Ariz. 403, 279 Pac. 257. It is unlikely that if it were not for the Minimum Wage Law there would be even a pretense on the part of anyone that plaintiff and his assignors could recover from defendant any payment for services for labor rendered after the amount budgeted for that purpose had been exhausted. Unless, therefore, it appears that the Minimum Wage Law has changed the policy of the state as set forth in the budget law, plaintiff and his assignors indubitably cannot recover. Does that law make such a change? Its language is as follows:

“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. Persons doing manual or mechanical labor employed by contractors or sub-contractors in the execution of any contract with the state, or with any of its political subdivisions, shall be deemed to be employed by or on behalf of the state, or of such political subdivision thereof.”

The most careful and critical examination thereof will fail to discover any provision therein either requiring or even suggesting that the functions in which plaintiff and his assignors performed the work which they did perform for defendant should be carried on, much less they should be employed for that purpose. Nor does it intimate in any manner that contracts for labor of the class referred to in the law are to be exempt from the limitations placed on all contracts by the budget law. It makes no reference, direct or indirect, to any of these matters. Its sole provisions are that certain hours, and no more, shall constitute a lawful day’s work for the persons named therein who are employed by or for the public, and that when so employed they shall be paid a certain amount per diem. The only manner in which by any conceivable stretch of the imagination it might be urged that the Minimum Wage Law in any manner deals with the limitations imposed by the budget law is that we should read into it, in effect, “and these wages shall be paid regardless of whether the contract of employment is legal or illegal, authorized or unauthorized by law. ’ ’ This would be legislation by the court in support of its economic theories of what the law should be and not a declaration of what the legislature has said plainly it is. The labor referred to in that law, for which the hours are limited and the wages are fixed, must necessarily be labor which is employed under the authority of the law, and not labor retained in violation of an express law, and which cannot by the terms of that law create any liability on the part of the employer. If an employer is expressly forbidden by law to employ labor under certain contingencies, how can an agent by violating that law bind the employer to pay for the labor?

There is no conflict between the budget law and the Minimum Wage Law, nor do we think there is the slightest indication that the legislature ever intended that the later law should affect the provisions of the former. The rule laid down by the two construed together, as it is our duty to construe them if it can be done, is that defendant was bound to pay its employees at the rate fixed by the Minimum Wage Law until such time as the amount budgeted by it for such purpose was exhausted, but that when this occurred any contract of employment depending for its payment upon the amount budgeted was automatically terminated by operation of law and was beyond the power of the municipality to extend or ratify, and that any attempt at its so doing was void.

It may be urged that this will work a hardship and injustice upon those who have in good faith furnished labor for the municipalities. The same objection was urged for years when there was any suggestion that the power of the governing boards of the municipalities and the counties should be restricted so they could not incur unlimited indebtedness. It was to meet this very situation that the budget law was adopted, and if we now hold that since the adoption of the Minimum Wage Law laborers of the class described therein are not subject, so far as the length of time for which they may be legally employed, to the terms of the budget law, and that if they perform services for the municipalities in excess of what the amount budgeted therefor permits they can nevertheless recover for such excess, we are legislating instead of acting judicially.

The record shows that plaintiff, his assignors and those in like circumstances were paid for services rendered by them the full gross amount budgeted by the city for services of that nature, and neither plaintiff, his assignors nor the city could apply the funds so paid and received at any. rate but that fixed by the Minimum Wage Law. It makes no difference that either or both the city and its employees may have thought and intended the payments should be credited at a different rate. An act of the legislature cannot be thus ignored nor violated. The Miuimum Wage Law fixed the rate at which the amount paid was credited, and when the gross amount budgeted for these purposes, applied at that rate, was exhausted, all contracts of employment for such purposes were automatically terminated and no new contract could he made by either the city or the plaintiff, working separately or together, under the doctrine of waiver, estoppel or any other principle known to the law, so as to create a liability on the part of the city.

The language of the budget law, Revised Code of 1928, section 3098, is explicit:

“No debt, obligation, or liability shall be incurred or created in any year in excess of the amounts specified therein as finally adopted for each purpose therein named. ’ ’

It must not be overlooked that the budget law is not a rule adopted by the city itself for its own benefit, so that the city may waive it or be estopped by its conduct from asserting it. It is an act adopted by the legislature of the state, as a direct and positive limitation of action by the city, and this being the case, no act of the city, nor of any other person, acting either alone or in combination, knowingly or unknowingly, intentionally or unintentionally, can alter the limitation. When the amount budgeted is exhausted, no further obligation can be created, and if this be true, certainly no judgment may be rendered against the city.

It is very true that it may be that a moral obligation exists upon the city to remunerate plaintiff and his assignors for work which they have performed without compensation, but only the legislature itself may waive the provisions of the budget law and authorize, much less direct, the city to meet that moral obligation by payment. This has been done in some cases. Palmcroft Dev. Co. v. City of Phoenix, 46 Ariz. 200, 49 Pac. (2d) 626, 103 A. L. R. 802; Id., 46 Ariz. 400, 51 Pac. (2d) 921, 103 A. L. R. 811. But this is a matter for the discretion of the legislature, and cannot affect the present situation.

As we have held in State v. Angle, ante, p. 13, 91 Pac. (2d) 705, just decided, we must determine cases of this kind on the law, regardless of what we may think of the moral equities involved. In that case, as it happened, the law was with the plaintiff; in this case it is not, but in both cases we must comply with the law as it is, and not ag we might think it should be. We hold, therefore, that since the employment of plaintiff and his assignors was not required by any legislative enactment, and since their employment, after the amount budgeted for payment for their services was exhausted, was a violation of the terms of the budget law which rendered the contract of employment from that time on null and void, they may not recover.

For the foregoing reasons, the judgment of the superior court is reversed, and the case remanded with instructions to enter judgment for defendant.

ROSS, C. J., concurs.